Security and International Law 9781849466349, 9781474201612, 9781782255888

Table of contents :
Foreword
Preface
Contents
Abbreviations
Contributors
Introduction
Part I: Conceptions of Securityand International Law
1. Security Agendas and International Law: The Case of New Technologies
I. Introduction
II. The Proliferation of Security Agendas
III. Security Communities and the Achievement of Agreements
IV. The UN as a Security Community on New Technologies
V. Drones, International Law and the UN
VI. Conclusion
2. Human Security and International Law: The Potential Scope for Legal Development within the Analytical Framework of Security
I. Introduction
II. Locating Human Security within the Analytical Framework of Security
III. Shifting the Focus
IV. Expanding Security Agendas
V. Extending the Means to Address Security Threats
VI. Conclusion
3. Human Security versus Environmental Security: At Legal Loggerheads
I. Introduction
II. Environmental Exemplars
III. Political Problems
IV. Fundamental for Food Security
V. Harming Health
VI. Personal Perils and Condemned Communities
VII. Embracing Economics
VIII. Finding Common Ground
IX. Conclusion
4. Regional Security and International Law
I. Introduction
II. The Development of Regional Organisations as Security Providers
III. Regional Security Providers and their Place within the Legal Framework of the United Nations
IV. Military Cooperation between Regional Actors and the United Nations
V. Multilateralism and its Challenges for the Relationship between the United Nations and Regional Actors
VI. Conclusion
5. International Criminal Justice and Security
I. Introduction
II. Peace v Justice? Or Peace through Justice?
III. The Security Council and the ICC: An Awkward Relationship?
IV. Conclusion
6. Security and International Law: The 'Responsibility to Protect'
I. Introduction
II. The Development of the 'Responsibility to Protect' Doctrine
III. The Concept of '(In)Security' in the Responsibility to Protect
IV. Security and Responsibility: An Alternative Conception
V. The Responsibility to Protect and International Law: The Problem with an 'Evolving Norm'
VI. Conclusion
Part II: Security Threats and International Law
7. International Law and the Iranian Nuclear Crisis: Lessons for International Security and Arms Control
I. Introduction
II. The Nuclear Non-Proliferation Regime
III. Iranian Arguments
IV. Article III of the NPT and the Additional Protocol
V. The IAEA Board of Governors
VI. The Inalienable Right to Peaceful Uses of Nuclear Energy
VII. Conclusion
8. Contemporary Maritime Piracy as a Threat to International Peace and Security
I. Introduction
II. The Current Geography
III. An Asymmetrical Threat
IV. Piracy's Expandable Reach
V. A Multifarious International Criminal Offence
VI. The International Response
VII. Conclusion
9. Terrorism: A Threat to Security?
I. Introduction
II. The Foundational Principle
III. The State and its Need for Security
IV. The Origins in Ethics of Human Rights
V. The Consequentialist War against Terrorism
VI. Conclusion
10. Abusive Governments as a Threat
I. Introduction
II. Collective Responses to Governmental Abusiveness
III. International Peace and Security and Territorial Administration
IV. Governmental Abusiveness and the (Ir)Relevance of Democratic Legitimacy
V. Conclusion
11. Protecting Security Interests in International Investment Law
I. Introduction
II. Protecting Security Interests in those BITs that Contain a 'Security Interest' Exception
III. Protecting Security Interests in those BITs that do not Contain an 'Essential Security Interests' Exception
IV. Conclusion
12. Securing the Polar Regions Through International Law
I. Introduction
II. What does 'Security' Mean and How Can International Law Contribute to it?
III. Is International Law Capable of Defining the Polar Regions?
IV. International Regimes Protecting the Polar Regions: Openness and Transparency
V. Conclusion
13. Climate Change as a Threat to International Security
I. Introduction
II. Security Implications of Climate Change
III. The International Legal Response: Achievements and Shortcomings of the Climate Change Negotiations from a Security Perspective
IV. The Three Pillars
V. The Failures of the International Legal Response to Climate Change and the Securitisation of the Problem
VI. Politics, Multilateralism and Climate Security: What Role for International Law?
VII. Conclusion
14. Cyber-Threats and International Law
I. Introduction
II. Cyber-Threats
III. The International Law Framework Applicable to Cyber-Threats
IV. Cyber-Attacks and the jus ad bellum
V. Conclusion
Index

Citation preview

SECURITY AND INTERNATIONAL LAW Of the many challenges that society faces today, possibly none is more acute than the security of ordinary citizens when faced with a variety of natural or man-made disasters arising from climate and geological catastrophes, including the depletion of natural resources, environmental degradation, food shortages, terrorism, breaches of personal security and human security, or even the global economic crisis. States continue to be faced with a range of security issues arising from contested t­ erritorial spaces, military and maritime security and security threats relating to energy, infrastructure and the delivery of essential services. The theme of the book encompasses issues of human, political, military, socio-economic­, environmental and energy security and raises two main questions. To what extent can international law address the types of natural and man-made security risks and challenges that threaten our livelihood, or very existence, in the twenty-first century? Where does international law fall short in meeting the problems that arise in different situations of insecurity and how should such shortcomings be addressed? Volume 58 in the series Studies in International Law

Studies in International Law Recent titles in this series Integration at the Border: The Dutch Act on Integration Abroad and International Immigration Law Karin de Vries An Equitable Framework for Humanitarian Intervention Ciarán Burke Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice Jure Vidmar International Law and the Construction of the Liberal Peace Russell Buchan The OIC, the UN, and Counter-Terrorism Law-Making: Conflicting or Cooperative Legal Orders? Katja Samuel Statelessness: The Enigma of the International Community William E Conklin The Reception of Asylum Seekers under International Law: Between Sovereignty and Equality Lieneke Slingenberg International Law and Child Soldiers Gus Waschefort The Contractual Nature of the Optional Clause Gunnar Törber Non-State Actors in International Law Edited by Math Noortmann, August Reinisch and Cedric Ryngaert The Rule of Law at the National and International Levels: Contestations and Deference Edited by Machiko Kanetake and André Nollkaemper Human Rights Obligations of Non-State Armed Groups Daragh Murray For the complete list of titles in this series, see ‘Studies in International Law’ link at www.hartpub.co.uk/books/series.asp

Security and International Law

Edited by

Mary E Footer, Julia Schmidt, Nigel D White and Lydia Davies-Bright

OXFORD AND PORTLAND, OREGON 2016

Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © The editors 2016 The editors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. Hart Publishing is an imprint of Bloomsbury Publishing plc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-78225-588-8 Library of Congress Cataloging-in-Publication Data Names: Footer, Mary E., editor.  |  Schmidt, Julia Ruth, editor.  |  White, Nigel D., 1961–, editor.  |  Davies-Bright, Lydia, editor.  |  International Law Association. British Branch, sponsoring body. Title: Security and international law / edited by Mary E Footer, Julia Schmidt, Nigel D White and Lydia Davies-Bright. Description: Oxford ; Portland, Or. : Hart Publishing Ltd, 2016.  |  Series: Studies in international law ; volume 58  |  Includes papers presented at the 2012 Spring Conference of the International Law Association’s British Branch held at the University of Nottingham.—ECIP foreword.  |  Includes bibliographical references and index. Identifiers: LCCN 2016005225 (print)  |  LCCN 2016005577 (ebook)  |  ISBN 9781849466349 (hardback : alk. paper)  |  ISBN 9781782255895 (Epub) Subjects: LCSH: International law—Congresses.  |  Security, International—Congresses. Classification: LCC KZ1240 .S43 2012 (print)  |  LCC KZ1240 (ebook)  |  DDC 341.7/2—dc23 LC record available at http://lccn.loc.gov/2016005225 Typeset by Compuscript Ltd, Shannon

Foreword Whenever essays based on papers delivered at a conference are published, there is a risk that they do not wear well with the inevitable passage of years or the different medium of their presentation. This is very definitely not the case with this excellent publication. The University of Nottingham offered to host the 2012 Spring Conference of the International Law Association’s British Branch with the challenging theme of the inter-relationship­between international law and ‘security’ in its latest and most diverse expression. The theme was explored by some outstanding speakers, generating lively and relevant discussion. It would have been disappointing if these had not found some more permanent record. This book amply fulfils that need. The editors were closely involved in Nottingham’s successful Conference, and have expertly brought these essays together to constitute an important body of work on one of the most troubling aspects of current affairs—both international and domestic. The basic dilemma between appraisal of actions by governments and international bodies to address— ‘defeat’ is so often the phrase used—terrorism and insecurity in the light of established international law, and trying to fit international law into the ways in which states have responded to real or perceived threats to international peace and security, comes out starkly from these essays. International law’s efficacy as a regime whereby states consent to constrain their actions has rarely, if ever, been under greater strain. All those with relevant responsibility should read these essays, and consider whether the measures so far adopted (and often re-cycled) will lead to a safer world for its citizens, or merely serve the interests of increasing chaos. There is much too for scholars of international law and of international relations to ponder in this important work. Jeremy P Carver CBE President, British Branch International Law Association August 2015

vi

Preface Of the many challenges that society faces today, possibly none is more acute than the security of ordinary citizens when faced with a variety of natural or man-made disasters arising from climate and geological catastrophes, including the depletion of natural resources, environmental degradation, food shortages, terrorism, breaches of personal security and human security, or even the global economic crisis. States too continue to be faced with a range of security issues arising from contested t­erritorial spaces, military and maritime security and security threats relating to energy, infrastructure and the delivery of essential services. The theme of the book encompasses issues of human, political, military, s­ ocio-economic­, environmental and energy security and raises two main questions. To what extent can international law address the types of natural and manmade security risks and challenges that threaten our livelihood, or very existence, in the twenty-first century? Where does international law fall short in meeting the problems that arise in different situations of insecurity and how should such shortcomings be addressed? This collection of essays, which arose out of the ILA British Branch Annual Spring Conference, held in Nottingham in April 2012, examines the concept of security in international law—how international law shapes security and how security shapes international law. The different aspects of this relationship will be outlined in the Introduction to the book, and aspects will be considered in each chapter. Different facets of security are considered in Part I, including how different international legal regimes such as international environmental law and international criminal justice intersect with what has been traditionally viewed as a concept or value protected by collective security law. Part II analyses in detail more specific threats and considers how both general international law and applicable specific regimes have responded. Mary E Footer Julia Schmidt Nigel D White Lydia Davies-Bright

viii

Contents Foreword���������������������������������������������������������������������������������������������������������������v Preface�����������������������������������������������������������������������������������������������������������������vii Abbreviations��������������������������������������������������������������������������������������������������� xvii Contributors�����������������������������������������������������������������������������������������������������xxiii Introduction�����������������������������������������������������������������������������������������������������xxxi Part I: Conceptions of Security and International Law 1. Security Agendas and International Law: The Case of New Technologies��������������������������������������������������������������� 3 Nigel D White I. Introduction���������������������������������������������������������������������������������������� 3 II. The Proliferation of Security Agendas�������������������������������������������� 5 III. Security Communities and the Achievement of Agreements������������������������������������������������������������ 8 IV. The UN as a Security Community on New Technologies���������������������������������������������������������������������������� 11 V. Drones, International Law and the UN���������������������������������������� 18 VI. Conclusion���������������������������������������������������������������������������������������� 23 2. Human Security and International Law: The Potential Scope for Legal Development within the Analytical Framework of Security������������������������������������ 25 Hitoshi Nasu I. Introduction�������������������������������������������������������������������������������������� 25 II. Locating Human Security within the Analytical Framework of Security������������������������������������������������� 27 III. Shifting the Focus����������������������������������������������������������������������������� 32 IV. Expanding Security Agendas��������������������������������������������������������� 34 V. Extending the Means to Address Security Threats��������������������� 37 A. Multidimensional Approach to Security������������������������������ 37 B. Pathology of Human Security������������������������������������������������ 39 VI. Conclusion���������������������������������������������������������������������������������������� 41 3. Human Security versus Environmental Security: At Legal Loggerheads������������������������������������������������������������������������������ 43 John Pearson I. Introduction�������������������������������������������������������������������������������������� 43 II. Environmental Exemplars�������������������������������������������������������������� 46

x  Contents III. IV. V. VI. VII. VIII. IX.

Political Problems�������������������������������������������������������������������������� 49 Fundamental for Food Security�������������������������������������������������� 51 Harming Health����������������������������������������������������������������������������� 53 Personal Perils and Condemned Communities������������������������ 55 Embracing Economics������������������������������������������������������������������ 58 Finding Common Ground����������������������������������������������������������� 61 Conclusion�������������������������������������������������������������������������������������� 65

4. Regional Security and International Law������������������������������������������� 69 Julia Schmidt I. Introduction����������������������������������������������������������������������������������� 69 II. The Development of Regional Organisations as Security Providers�������������������������������������������������������������������� 71 III. Regional Security Providers and their Place within the Legal Framework of the United Nations���������������������������� 75 IV. Military Cooperation Between Regional Actors and the United Nations���������������������������������������������������������������� 82 V. Multilateralism and its Challenges for the Relationship Between the United Nations and Regional Actors���������������������������������������������������������������������� 84 A. Multilateralism and the View from the UN���������������������� 85 i. NATO and Kosovo��������������������������������������������������������� 85 ii. ECOWAS and Liberia���������������������������������������������������� 87 B. Multilateralism and the View from Regional Actors���������������������������������������������������������������������� 88 VI. Conclusion�������������������������������������������������������������������������������������� 91 5. International Criminal Justice and Security��������������������������������������� 93 Olympia Bekou I. Introduction����������������������������������������������������������������������������������� 93 II. Peace v Justice? Or Peace Through Justice?������������������������������ 94 III. The Security Council and the ICC: An Awkward Relationship?��������������������������������������������������������� 99 A. The Security Council, the ICC, and the Crime of Aggression����������������������������������������������������������� 100 B. Referrals by the Security Council—Article 13(b) of the Rome Statute������������������������������������������������������������� 101 C. Preconditions for Referring a Situation to the Court�������������������������������������������������������������������������� 103 D. Deferrals by the Security Council—Article 16 of the Rome Statute������������������������������������������������������������� 107 E. Cooperation in the Field: The ICC and UN Peacekeeping Operations����������������������������������������������������111 IV. Conclusion������������������������������������������������������������������������������������ 114

Contents xi 6. Security and International Law: The ‘Responsibility to Protect’������������������������������������������������������������ 115 Alexandra Bohm I. Introduction������������������������������������������������������������������������������������ 115 II. The Development of the ‘Responsibility to Protect’ Doctrine������������������������������������������������������������������������ 117 A. The International Commission on Intervention and State Sovereignty 2001���������������������������� 117 B. The United Nations General Assembly World Summit 2005��������������������������������������������������������������� 118 C. Implementing the Responsibility to Protect, 2009������������� 119 D. RtP Now���������������������������������������������������������������������������������� 120 III. The Concept of ‘(In)Security’ in the Responsibility to Protect��������������������������������������������������������������� 121 A. The Cause of Threats to Individual Security���������������������� 121 B. The International Community’s Role in Enabling Security������������������������������������������������������������������� 122 i. Prevention and Assistance�������������������������������������������� 122 ii. Reaction and Response�������������������������������������������������� 122 IV. Security and Responsibility: An Alternative Conception����������������������������������������������������������� 123 A. The Importance of Mass Atrocity Crimes��������������������������� 124 B. The Cause of Crises: Civil and Political vs Socio-Economic Rights���������������������������������������������������������� 126 C. The Role of the International Community in Insecurity—to the Rescue?����������������������������������������������� 129 D. RtP’s Unanswered Questions: A Return to ‘Humanitarian Intervention’������������������������������������������������ 131 V. The Responsibility to Protect and International Law: The Problem with an ‘Evolving Norm’��������������������������������������� 133 VI. Conclusion�������������������������������������������������������������������������������������� 136 Part II: Security Threats and International Law 7. International Law and the Iranian Nuclear Crisis: Lessons for International Security and Arms Control�������������������� 141 Tom Coppen I. Introduction������������������������������������������������������������������������������������ 141 II. The Nuclear Non-Proliferation Regime�������������������������������������� 144 III. Iranian Arguments������������������������������������������������������������������������� 149 IV. Article III of the NPT and the Additional Protocol������������������� 152 V. The IAEA Board of Governors����������������������������������������������������� 155 VI. The Inalienable Right to Peaceful Uses of Nuclear Energy�������������������������������������������������������������������������� 159 VII. Conclusion�������������������������������������������������������������������������������������� 162

xii  Contents 8. Contemporary Maritime Piracy as a Threat to International Peace and Security�������������������������������������������������������� 167 Alexandros XM Ntovas I. Introduction������������������������������������������������������������������������������������ 167 II. The Current Geography���������������������������������������������������������������� 171 III. An Asymmetrical Threat��������������������������������������������������������������� 173 IV. Piracy’s Expandable Reach����������������������������������������������������������� 178 V. A Multifarious International Criminal Offence������������������������� 184 VI. The International Response���������������������������������������������������������� 190 VII. Conclusion�������������������������������������������������������������������������������������� 197 9. Terrorism: A Threat to Security?��������������������������������������������������������� 207 Lydia Davies-Bright I. Introduction������������������������������������������������������������������������������������ 207 II. The Foundational Principle���������������������������������������������������������� 209 A. The (Modern) Origin of the Inviolability of Human Dignity���������������������������������������������������������������������� 209 B. International Human Rights Law���������������������������������������� 210 C. The Inviolability of Human Dignity Revisited������������������ 212 III. The State and its Need for Security��������������������������������������������� 213 A. Concept of the State��������������������������������������������������������������� 213 B. The Nation State��������������������������������������������������������������������� 216 i. Defending the Nation��������������������������������������������������� 216 C. The Meaning of Security������������������������������������������������������� 218 D. The Security Narrative���������������������������������������������������������� 220 IV. The Origins in Ethics of Human Rights�������������������������������������� 223 A. The Repositioning of Human Rights on the Moral Field����������������������������������������������������������������������� 223 B. Consequentialism������������������������������������������������������������������� 224 C. Deontology������������������������������������������������������������������������������ 225 D. Consequentialism v Deontology������������������������������������������ 225 V. The Consequentialist War Against Terrorism���������������������������� 226 A. A Just War Against Terrorism����������������������������������������������� 226 B. The Montreal Convention and Lockerbie Case����������������� 227 i. Lockerbie Bombing������������������������������������������������������� 228 ii. From Specific to General Threat���������������������������������� 232 C. The Destruction of One��������������������������������������������������������� 235 i. ‘One’ is no Longer Safe������������������������������������������������� 237 ii. ‘One’ no Longer Counts����������������������������������������������� 238 iii. Jean Charles de Menezes as One��������������������������������� 242 iv. Osama bin Laden as One��������������������������������������������� 245 VI. Conclusion�������������������������������������������������������������������������������������� 246

Contents xiii 10. Abusive Governments as a Threat��������������������������������������������������� 249 Jure Vidmar I. Introduction���������������������������������������������������������������������������������� 249 II. Collective Responses to Governmental Abusiveness������������������������������������������������������� 250 A. Governments, Legitimacy and Effective Control������������������������������������������������������������������ 250 B. International Response to Coup Governments������������������������������������������������������������������������ 253 C. Collective Denial of Legitimacy to an Incumbent Government������������������������������������������������������ 255 III. International Peace and Security and Territorial Administration���������������������������������������������������������� 260 A. East Timor����������������������������������������������������������������������������� 261 B. Kosovo����������������������������������������������������������������������������������� 264 IV. Governmental Abusiveness and the (Ir)Relevance of Democratic Legitimacy���������������������������������� 267 A. The Scope of the Right to Political Participation������������������������������������������������������������������������� 268 B. A Switch to Democracy?����������������������������������������������������� 269 V. Conclusion������������������������������������������������������������������������������������ 271 11. Protecting Security Interests in International Investment Law������������������������������������������������������������������������������������ 273 Prabhash Ranjan I. Introduction���������������������������������������������������������������������������������� 273 II. Protecting Security Interests in those BITs that Contain a ‘Security Interest’ Exception���������������������������� 275 A. Type I BITs—BITs Containing ‘Essential Security Interest’ Exception Without Self-Judging Language���������������������������������������� 276 i. Meaning of ‘Essential Security Interests’������������������ 277 ii. Scope of ‘Essential Security Interests’����������������������� 277 B. The Question of Threshold������������������������������������������������� 280 C. Measures Should be ‘Necessary’ to Protect Security Interests���������������������������������������������������� 283 D. Essential Security Interests in BITs Containing Self-Judging Language����������������������������������� 292 III. Protecting Security Interests in those BITs that do not Contain an ‘Essential Security Interests’ Exception��������������������������������������������������������������������� 295 IV. Conclusion������������������������������������������������������������������������������������ 298

xiv  Contents 12. Securing the Polar Regions Through International Law��������������������������������������������������������������������������������� 301 Jill Barrett I. Introduction���������������������������������������������������������������������������������� 301 II. What does ‘Security’ Mean and How Can International Law Contribute to it?������������������������������������������ 303 III. Is International Law Capable of Defining the Polar Regions?����������������������������������������������������������������������� 306 A. How does International Law Define ‘the Polar Regions’?������������������������������������������������������������� 307 B. How does International Law Define ‘Antarctica’?�������������������������������������������������������������������������� 308 C. Key Differences Between the Antarctic Treaty and the CCAMLR Boundaries������������������������������� 311 D. How does International Law Define the ‘Arctic’?��������������������������������������������������������������������������� 312 i. IMO Polar Shipping Guidelines 2009—Arctic Waters���������������������������������������������������� 313 ii. IMO Polar Code—Arctic Waters������������������������������� 313 iii. Arctic Council�������������������������������������������������������������� 314 iv. Treaties Adopted by the Arctic Council States�������������������������������������������������������������� 315 v. Arctic Ocean Conference������������������������������������������� 317 E. Implication of the Different Approaches to Boundaries in each Polar Region���������������������������������� 317 IV. International Regimes Protecting the Polar Regions: Openness and Transparency�������������������������������������� 319 A. Antarctic Treaty System—How to Join����������������������������� 319 i. Accession to the Antarctic Treaty����������������������������� 319 ii. Recognition of Antarctic Treaty Consultative Party Status������������������������������������������ 320 iii. Criteria for Recognition of Consultative Party Status������������������������������������������������������������������ 321 iv. ATCM Observers and Experts���������������������������������� 328 B. Accession to the Convention on the Conservation of Antarctic Marine Living Resources 1980 (‘CCAMLR’)���������������������������������������������� 328 i. Observers, Acceding States and Non-Party States��������������������������������������������������������� 329 ii. Becoming a Member of the CCAMLR Commission����������������������������������������������������������������� 330 iii. Remarks on the Overall Level of Openness of the ATS to Participation���������������������� 330

Contents xv C. The Arctic Council—How to become a Member������������������������������������������������������������������������������ 332 D. How Can a Non-Arctic State or Organisation Participate in the Arctic Council as an Observer?����������������������������������������������������� 334 V. Conclusion������������������������������������������������������������������������������������ 337 13. Climate Change as a Threat to International Security����������������� 341 Mattia Fosci I. Introduction���������������������������������������������������������������������������������� 341 II. Security Implications of Climate Change�������������������������������� 343 A. Threat to Territorial Sovereignty��������������������������������������� 344 B. Threat to Human Well-Being��������������������������������������������� 345 C. Threat to Economic Development������������������������������������� 346 D. Threat to Peace and Security���������������������������������������������� 347 III. The International Legal Response: Achievements and Shortcomings of the Climate Change Negotiations from a Security Perspective�������������������������������� 348 IV. The Three Pillars�������������������������������������������������������������������������� 350 A. Climate Change Mitigation������������������������������������������������ 350 B. Climate Change Adaptation���������������������������������������������� 351 C. International Cooperation on Finance, Technology and Information���������������������������������������������� 352 V. The Failures of the International Legal Response to Climate Change and the Securitisation of the Problem����������������������������������������������������������������������������������� 355 VI. Politics, Multilateralism and Climate Security: What Role for International Law?��������������������������������������������� 360 VII. Conclusion������������������������������������������������������������������������������������ 364 14. Cyber-Threats and International Law��������������������������������������������� 365 Nicholas Tsagourias and Russell Buchan I. Introduction���������������������������������������������������������������������������������� 365 II. Cyber-Threats������������������������������������������������������������������������������� 366 III. The International Law Framework Applicable to Cyber-Threats�������������������������������������������������������������������������� 369 A. The United Nations Charter����������������������������������������������� 369 B. The Law of State Responsibility���������������������������������������� 369 C. The International Law on the Use of Force���������������������� 370 D. Customary International Law�������������������������������������������� 370 E. International Humanitarian Law�������������������������������������� 370 F. International Criminal Law������������������������������������������������ 371 G. International Law Applicable to Terrorism��������������������� 372 H. Human Rights���������������������������������������������������������������������� 373 I. International Law on Espionage���������������������������������������� 374

xvi  Contents IV. Cyber-Attacks and the jus ad bellum������������������������������������������ 375 A. Cyber-Attacks as Unlawful Uses of Force������������������������ 377 B. Cyber-Attacks and Self-Defence���������������������������������������� 381 C. Cyber-Attacks by Non-State Actors���������������������������������� 385 D. Collective Security��������������������������������������������������������������� 387 V. Conclusion������������������������������������������������������������������������������������ 387 Index����������������������������������������������������������������������������������������������������������������� 391

Abbreviations ACAP

Agreement on the Conservation of Albatrosses and Petrels

ACDA

US Arms Control and Disarmament Agency

AFISMA

African-led International Support Mission to Mali

AMIS

African Union Mission in Sudan

AOR

Area of Responsibility

AP

Additional Protocol

ASEAN

Association of Southeast Asian Nations

ASOC

Antarctic and Southern Ocean Coalition

ASP

Assembly of States Parties

AT

Arctic Treaty

ATCM

Antarctic Treaty Consultative Meetings

ATCP

Antarctic Treaty Consultative Parties

ATS

Antarctic Treaty System

AU

African Union

BASIC

Brazil, South Africa, India and China

BG

Board of Governors

BIMCO

Baltic and International Maritime Council

BIT

Bilateral Investment Treaty

BMP

Best Management Practices

BRIC

Brazil, Russia, India, China and South Africa

CAR

Central African Republic

CARICOM

Caribbean Community

CAT

Convention Against Torture

CBDR

Common But Differentiated Responsibilities

CCAMLR

Convention on the Conservation of Antarctic Marine Living Resources 1980

CCDCOE

Cooperative Cyber Defence Centre of Excellence

CDM

Clean Development Mechanism

CDS

Catch Documentation Scheme

CoE

Council of Europe

xviii  Abbreviations COMNAP

Council of Managers of Antarctic Programs

COP

Conference of the Parties

CRC

Convention on the Rights of the Child

CSA

Comprehensive Safeguards Agreement

CTBT

Comprehensive Test-Ban Treaty

CWC

Chemical Weapons Convention

DDOS

Distributed Denial of Service

DoD

Department of Defence

DPRK

North Korea (Democratic People’s Republic of Korea)

DRC

Democratic Republic of the Congo

EC

European Community

ECHR

European Convention on Human Rights

ECJ

European Court of Justice

ECOWAS

Economic Community of Western African States

ECtHR

European Court of Human Rights

EEZ

Exclusive Economic Zone

ENDC

Eighteen-Nation Committee for Disarmament

ESF

ECOWAS Standby Force

EU

European Union

FCN

Friendship Commerce and Navigation

FRY

Federal Republic of Yugoslavia

G77

Group of 77

GA

General Assembly

GATT

General Agreement on Tariffs and Trade

GCHQ

UK Government Communications Headquarters

HRC

Human Rights Committee

HRLC

Human Rights Law Centre

IAATO

International Association of Antarctica Tour Operators

IAEA

International Atomic Energy Agency

ICC

International Criminal Court

ICCPR

International Covenant on Civil and Political Rights

ICESCR

International Covenant on Economic, Social and Cultural Rights

ICISS

International Commission on Intervention and State Sovereignty

Abbreviations xix ICJ

International Court of Justice

ICRW

International Convention for the Regulation of Whaling

ICS

International Chamber of Shipping

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for Yugoslavia

IDP

Internally displaced persons

IFOR/SFOR

NATO-led Stabilisation Force in Bosnia and Herzegovina

IHL

International Humanitarian Law

IHRL

International Human Rights Law

ILA

International Law Association

ILC

International Law Commission

IMB

International Maritime Bureau of the International Chamber of Commerce

IMF

International Monetary Fund

IMO

International Maritime Organisation

INFCIRC

Information Circular

INTERCARGO International Association of Dry Cargo Shipowners INTERTANKO

International Association of Independent Tanker Owners

IPCC

Intergovernmental Panel on Climate Change

IPCC

Independent Police Complaints Commission

ISO

International Organization for Standardization

ITU

International Telecommunication Union

MARPOL

International Convention for the Prevention of Pollution from Ships 1973 as modified by the Protocol of 1978

MINUSCA

UN Multidimensional Integrated Stabilization Mission in the Central African Republic

MINUSMA

UN Multidimensional Integrated Stabilization Mission

MONUC

UN Mission in the Democratic Republic of Congo

MONUSCO

UN Organisation Stabilisation Mission in the Democratic Republic of the Congo

MoU

Memoranda of Understanding

MPS

Metropolitan Police Service

NAFTA

North American Free Trade Agreement

NATO

North Atlantic Treaty Organisation

NGO

Non-Governmental Organisation

NNWS

Non-Nuclear Weapon States

xx  Abbreviations NPM

Non Precluded Measures

NPT

Nuclear Non-proliferation Treaty

NSA

National Security Agency

NTC

National Transitional Council

NWS

Nuclear-Weapon States

OAS

Organisation of American States

OHCHR

Office of the High Commissioner for Human Rights

OPEC

Organisation of the Petroleum Exporting Countries

OSCE

Organisation for Security and Cooperation in Europe

PCASP

privately contracted armed security personnel

POW

Prisoner of War

PrepComs

Preparatory Committees

REEEP

Renewable Energy and Energy Efficiency Partnership

REIO

Regional Economic Integration Organisations

RMA

Revolution in Military Affairs

RtP

Responsibility to Protect

SAR

Search and Rescue

SC

Security Council

SCAR

Scientific Committee on Antarctic Research

SCSL

Special Court of Sierra Leone

SEA

Single European Act

SOLAS

International Convention for the Safety of Life at Sea 1974

SUA

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation

TBS

Ticking Bomb Scenario

UAV

Unmanned Aerial Vehicle

UDHR

Universal Declaration of Human Rights

UK

United Kingdom

UN

United Nations

UNAMID

African Union-United Nations Hybrid Operation in Darfur

UNC

UN Charter

UNCLOS

United Nations Convention on the Law of the Sea

UNDP

United Nations Development Programme

UNEP

UN Environment Programme

UNESCO

UN Educational, Scientific and Cultural Organisation

Abbreviations xxi UNFCCC

United Nations Framework Convention on Climate Change

UNGA

United Nations General Assembly

UNIDIR

UN Institute for Disarmament Research

UNMIL

UN Mission in Liberia

UNSC

United Nations Security Council

UNSG

United Nations Secretary General

UNTS

United Nations Treaty Series

UNU-CRIS

United Nations University—Comparative Regional Integration Studies

US

United States

USA

United States of America

USSR

Union of Soviet Socialist Republics

UTA

Union de Transport Aeriens

VCLT

Vienna Convention of the Law of Treaties

WFP

World Food Program

WHO

World Health Organisation

WMD

Weapons of Mass Destruction

WTO

World Trade Organisation

WWII

World War II

xxii

Contributors Jill Barrett Arthur Watts Senior Research Fellow in Public International Law, ­British Institute of International and Comparative Law. She leads the Watts research and events programme in public international law. She has developed research projects and published on a range of subjects including Treaty Law and Practice, Antarctic and Arctic governance, Law of the Sea, legal aspects of democratic participation in Hong Kong and British Contributions to International Law 1915–2015. Jill joined BIICL from the Legal Adviser’s team at the Foreign and Commonwealth Office, where she was a Legal Counsellor. During her twenty-year FCO career, her responsibilities included advising on public international law, EU and UK law on a wide range of subjects and she served as First Secretary (Legal) at the United Kingdom Mission to the United Nations, New York. She was Deputy Agent for the United Kingdom in the Ireland v UK Mox Plant cases under UNCLOS and the OSPAR Convention and represented the UK at a variety of international conferences, such as the Antarctic Treaty Consultative Meeting, Commission on the Conservation of Antarctic Living Marine Resources, London Convention, International Whaling Commission, European Energy Charter, UN Commission on Environment and Development and the UN Framework Convention on Climate Change. She led the Government’s work on creating a new statutory regime for parliamentary scrutiny of treaties. Before joining the FCO, she was Lecturer in Law at SOAS, London University, specialising in the law of the People’s Republic of China, and Lecturer in Law at Durham University. She attended 12 Antarctic Treaty and two CCAMLR meetings during 2002–13; 10 as legal adviser to the United Kingdom delegation; and since leaving the FCO, one as a staff member of the Antarctic Treaty Secretariat, and three as legal adviser to the Antarctic and Southern Ocean Coalition delegation. The views expressed in her chapter are of course personal. Olympia Bekou Professor of Public International Law, University of Nottingham and Head of the International Criminal Justice Unit, Nottingham Human Rights Law Centre. A qualified lawyer, Olympia specialises in international criminal law. She has developed particular expertise in national ­implementing

xxiv  Contributors legislation for the ICC as well as in developing new methodologies that aim to enhance the efficiency and effectiveness of ­international criminal justice processes. In recent years Olympia has been a fellow of the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany, and she has also held visiting positions at the TC Beirne School of Law, University of Queensland, Australia, the University of Nantes, France and Istanbul Bilgi University, Turkey. Olympia has provided research and capacity building support for 63 States, through intensive training to more than 75 international government officials and drafting assistance to Samoa (with legislation enacted in November 2007), Fiji and Jamaica and has been involved in training the Thai Judiciary. She has also undertaken capacity building missions in post-conflict situations such as Uganda, the DRC and Sierra Leone. She is Deputy Director of the Case Matrix Network and a member of the Advisory Board and Editor of the Forum of International Criminal and Humanitarian Law. Olympia is responsible for the National Implementing Legislation Database (NILD) of the ICC Legal Tools Project and has researched and taught extensively worldwide. In 2014, she was awarded the University of Nottingham Knowledge Exchange and Innovation Award for Societal Impact in Social Sciences for her work ‘Fighting Impunity through Technology: Strengthening the Capacity of National and International Criminal Justice Institutions to Investigate and Prosecute the Most Serious International Crimes’. Alexandra Bohm Teaching Fellow, University of Sheffield. A non-practising solicitor, ­Alexandra completed her PhD at the University of Sheffield in 2014, on the Responsibility to Protect. Alexandra has broader interests in theoretical and methodological issues in international law and international relations, and has published on this topic and on the use and regulation of private military and security contractors. Russell Buchan Dr Russell Buchan is a senior lecturer in international law at the University of Sheffield. Russell sits on the editorial board of the Journal of the Use of Force in International Law and the International Community Law Review. ­Russell’s monograph was published by Hart Publishing in 2013 and is entitled International Law and the Construction of the Liberal Peace, and was the recipient of the American Society of International Law’s Francis Lieber Prize for an outstanding monograph in the field of the law of armed conflict for 2014. Russell has co-edited, along with Professor Nicholas ­Tsagourias,

Contributors xxv an edited collection entitled A Research Handbook on International Law and Cyberspace, published by Edward Elgar in 2015. Russell is Co-Rapporteur for the International Law Association’s Study Group on Cybersecurity, Terrorism and International Law. Tom Coppen Researcher and PhD Candidate, Center for Conflict and Security Law (CCSL) Utrecht University. Tom received his LLM at Nijmegen University in the Netherlands, after which he studied International Relations at the University of Cape Town, South Africa. His main focus area is the legal nuclear non-proliferation regime, specifically the Non-Proliferation Treaty (NPT), International Atomic Energy Agency (IAEA), as well as export controls. He was a Special Advisor for the Netherlands at the 2010 NPT Review Conference and the 2012 and 2013 NPT Preparatory Commissions. Tom spent two months in Vienna, Austria, where he interviewed dozens of IAEA officials and national representatives in order to research the review and assessment of safeguards information in the context of IAEA non-compliance procedures. In addition to his non-proliferation research, he is an advisor for a project on nuclear security at the CCSL. He has participated as a panel member in several conferences on nuclear nonproliferation and security, and published articles in the Journal of Conflict and Security Law, the Internationale Spectator and the Romanian Journal of Society and Politics. Abstracts of the latter are used in this chapter. Lydia Davies-Bright PhD student, School of Law University of Nottingham. Lydia’s thesis focuses on the relationship between human rights and security and examines the ‘security concession’ made in numerous human rights instruments. She is also researching and publishing in the inter-related areas of democracy, security, terrorism and international law, is a member of the Nottingham Centre for International and Security Law and is a student assistant for the Journal of Conflict and Security Law (Oxford University Press). Lydia also tutors in Understanding Law, Contract Law, Law of Torts and Democracy and the Rule of Law in Post-Conflict Situations. Mary E Footer Professor of International Economic Law, co-Director of the Nottingham International Law and Security Centre and Head of the Business, Trade

xxvi  Contributors and Human Rights Unit in the Nottingham Human Rights Law Centre. Prior to joining the University of Nottingham in 2006, Mary was D ­ eputy Director at the Amsterdam Centre for International Law and senior lecturer at the University of Amsterdam. She has previously held teaching posts in international law at the Erasmus University Rotterdam and University College London and was Senior Program Legal Counsel at the International Development Law Organisation, Rome from 1995–1999. She has been a Fernand Braudel Senior Visiting Fellow at the European University Institute, Florence in 2010, and the first Fellow in Public International Law at the British Institute of International and Comparative Law, London, 1992–1994. Mary is a member of the Executive Board of the European Society of International law, Director of Studies for the British Branch of the International Law Association (ILA) and chair of the ILA Committee on Sustainable Development and the Green Economy in International Trade Law. She read European History and History of Art at the University of East Anglia (BA Hons) before embarking on her law s­ tudies, with a JD in Dutch civil law from the University of the N ­ etherlands ­Antilles, followed by an LLM in Public International Law from UCL and a PhD cum laude from the Erasmus University Rotterdam. Mary has published widely on GATT/WTO matters, trade and investment, law and economic development, the international regulation of (agro)biotechnology, food security and business and human rights. She is author of An Institutional and Normative Analysis of the World Trade Organization (Nijhoff, 2006) and co-editor with Julio Faundez and Joseph J Norton of Governance, Development and Globalization (Blackstone, 2000). Mattia Fosci Formerly a visiting lecturer in International and EU law at University of Leicester, Mattia has recently founded, and is currently managing, an open-source think tank. Mattia is also consulting on a number of ­government-sponsored projects on open access research. He has published in top rated international environmental journals, as well as on legal and policy issues relating to research management and open access to academic research. Mattia holds a doctorate and LLM in International Law from the University of Nottingham, an MA in International Relations and a BA in Political Science from the University of Cagliari, Italy. His doctoral research focused on the multi-level governance of land and forests in the context of emerging international efforts to mitigate climate change. He has published on issues related to Reducing Emissions from Deforestation and Forest Degradation (REDD+), biodiversity law, and environmental governance in developing countries. In 2009–2010 he attended the UNFCCC negotiations on climate change as an accredited observer.

Contributors xxvii He has worked with civil society organisations and the IUCN, and as a consultant in the areas of climate change law, policy and economics. Hitoshi Nasu Senior Lecturer in Law and Co-Director of the Centre for Military and Security Law at the Australian National University. Hitoshi holds a ­ ­Bachelor’s and Master’s degree in Political Science from Aoyama Gakuin University and a Master’s degree and PhD in Law from the University of Sydney. He is the author of International Law on Peacekeeping: A Study of Article 40 of the UN Charter (Nijhoff, 2009) and co-editor of Human Rights in the Asia-Pacific Region: Towards Institution Building (Routledge, 2011), Asia-Pacific Disaster Management: Comparative and Socio-legal Perspectives (Springer, 2013), New Technologies and the Law of Armed Conflict (TMC Asser, 2014), and Legal Perspectives on Security Institutions (Cambridge University Press, 2015). This research was supported under Australian Research Council’s Discovery Project funding scheme (Project Number: DP130103683). Alexandros XM Ntovas Lecturer in Shipping Law, Queen Mary University of London; Centre for Commercial Law Studies. Dr Ntovas has studied law and political sciences in Greece, England, Belgium, France and the Netherlands. His background amalgamates the disciplines of public international and European law with political analysis and international relations, as these finding a common expression in the context of oceanic policy and the law of the sea. He has practiced public and administrative law, and acted on numerous occasions as a policy advisor to governments, including the European Union, the public sector and the maritime industry. His expertise within the Centre for Commercial Law Studies lies in the navigational freedoms and practices, as well as in issues regarding the public aspects of piracy and other issues of contemporary safety and security of ships, and offshore installations. He had previously held a law lectureship at the University of Southampton, where he was also a governing board member of the Institute of Maritime Law. John Pearson Lecturer, University of Manchester. John teaches in Property Law and Environmental Law. He studied at Bangor University where he received

xxviii  Contributors his undergraduate degree and a second LLM. John earlier received an LLM from Lancaster University before returning to receive his doctorate. His research focuses on the protection of the environment, or features thereof, through human rights law. He is also a case reporter for Oxford University Press’ International Law in Domestic Courts publication and member of the Global Network for the Study of Human Rights and the Environment. Prabhash Ranjan Prabhash Ranjan is an Assistant Professor in the Faculty of Legal S ­ tudies, South Asian University, New Delhi. Prabhash holds a PhD in Law from King’s College London where he studied on a King’s College London School of Law Doctoral Scholarship. As a British Chevening scholar, he read for LLM at SOAS and UCL and graduated with a distinction. ­Prabhash has been a Visiting Fellow to the Lauterpacht Centre for International Law, University of Cambridge; Visiting Scholar at University of Sydney; Guest Tutor at King’s College London; Research Assistant at University College London; and Research Consultant to international organisations the UNDP and UN-ESCAP. He has also advised the Indian Government on bilateral investment treaties. He teaches and publishes in the area of international investment law and world trade law. Julia Schmidt Lecturer in European Law, The Hague University of Applied Sciences. Julia obtained her First State Examination in Law at the University of Mannheim, her LLM in European Legal Studies from Glasgow, and completed her PhD at Edinburgh. Before joining the University of Nottingham as a Research Fellow, Julia worked as a tutor in European Union Law at the University of Edinburgh and as a wissenschaftliche Mitarbeiterin at the Institute for Public International Law at the University of Bonn. She is a qualified but non-practising lawyer in Germany. Her research focuses on the EU’s common security and defence policy and military crisis management operations. Nicholas Tsagourias Professor of International Law, University of Sheffield. His teaching and research interests are in the fields of international law and the use of force, international humanitarian law, international criminal law, United Nations Law, international and European constitutional theory. He has published

Contributors xxix widely in these fields. His most recent publications are the book Collective Security: Theory, Law and Practice (Cambridge University Press, 2013) with Nigel White and the Research Handbook on International Law and Cyberspace (Elgar, 2015) edited with Russell Buchan. He sits on the ­editorial board for the Journal of Conflict and Security Law (Oxford University Press) and is a member of the Cyberterrorism Study Group of the International Law Association. Jure Vidmar Leverhulme Early Career Fellow, Faculty of Law and Research Fellow St John’s College University of Oxford. Jure teaches EU law and Public International Law and acts as a research supervisor for several Oxford colleges. Other legal subjects he has taught include Criminal Law, International Human Rights Law, Jurisprudence and Public Law. Prior to taking up his current position, Jure was a Research Fellow at the Institute of European and Comparative Law, University of Oxford, and prior to that he was a Post-Doctoral Researcher at the Amsterdam Center for International Law, University of Amsterdam. As a visiting fellow and guest lecturer, Jure regularly cooperates with the University of Pretoria. His main research interests lie within public international law, human rights, ­European law, and political theory. He is the author of a monograph entitled Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Oxford, Hart Publishing, 2013) and co-editor (with Erika de Wet) of Hierarchy in International Law: The Place of Human Rights (Oxford, Oxford University Press, 2012). He has also authored a number of articles and book chapters on several topics in international law, including democracy, hierarchy, jus cogens, governments, territorial integrity, statehood and recognition. In 2012, Jure was awarded an Early Career Grant by the Leverhulme Trust which will enable him to carry out a research project entitled ‘Abusive Governments in International Law’. This research is also supported by the John Fell Fund of Oxford U ­ niversity. Jure is an editor of the Hague Yearbook of International Law. Nigel D White Head of the School of Law and Professor of Public International Law, University of Nottingham, formerly Professor of International Law at the University of Sheffield. In addition to publishing a number of articles and essays, Nigel is co-author and author of a number of books including Keeping the Peace (Manchester University Press, 1997), The UN System: Toward International Justice (Lynne Rienner, 2002), The Law of International

xxx  Contributors ­Organisations (Manchester University Press, 2005), Democracy Goes to War: British Military Deployments under International Law (Oxford University Press, 2009), and The Cuban Embargo under International Law: El Bloqueo (Routledge, 2015). He is also editor and co-editor of a number of collections including The UN, Human Rights and Post-Conflict Situations (Manchester University Press, 2005), European Security Law (Oxford University Press, 2007), International Law and Dispute Settlement (Hart Publishing, 2010), and Counter-Terrorism: International Law and Practice (Oxford University Press, 2012). He is co-editor of the Journal of Conflict and Security Law published by Oxford University Press and in its twentieth year. He has undertaken a number of funded research projects including on: the regulation of private military and security contractors; democratic accountability and the deployment of troops; human rights and post-conflict situations; the role of national courts in international law; and counter-terrorism and the rule of law. In recent years he has given written and oral evidence to the UK House of Commons Constitutional Affairs Committee (on war powers), the Foreign Affairs Committee (on the legal consequences of Scottish independence, and the regulation of private military contractors), the All Party Parliamentary Inquiry into Terrorism (on international legal responses to terrorism), and a written submission to the Iraq Inquiry (on the legality of the UK’s use of force in 2003).

Introduction NIGEL D WHITE AND LYDIA DAVIES-BRIGHT

Security is mostly a superstition. It does not exist in nature, nor do the children of man as a whole experience it. Avoiding danger is no safer in the long run than outright exposure. Life is either a daring adventure, or nothing.1

Notwithstanding the wisdom of Helen Keller’s words in the 1950s, security has become the central topic of the twenty-first century, with each day seemingly bringing yet another threat that endangers the lives of citizens and the functioning of states. Politicians, international organisations and security agencies seek to maximise security through a variety of measures. The United Nations has become increasingly active in pursuit of its obligation in Article 1(1) of the UN Charter to maintain international peace and security, with the Security Council passing Resolutions with increasing domestic obligations on Member States.2 Actual and perceived threats to both individual citizens and states range from climate change, geological catastrophes, environmental degradation and food shortages, to terrorism, contested territorial space, armed conflict and threats relating to energy, infrastructure and the delivery of essential services. In responding to perceived threats, states and their citizens pursue protection, sometimes at almost any cost, in a variety of ways. Security and the creation of measures with the stated aim of maximising security have become central to both domestic and international political and legal discourse. This collection of essays, which arose out of the International Law Association (ILA) British Branch Annual Spring Conference, held in Nottingham in April 2012, examines the concept of security in international law—how international law shapes security and how security shapes international law. In order to legitimise restrictive actions, international legal instruments are used to limit or outlaw activities that are seen as potentially dangerous, such as funding groups suspected of sponsoring terrorism, or to attempt to compel actions with the aim of preventing

1 

H Keller, The Open Door (Doubleday, 1957). Such as UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373 (2001), which marked a shift in international law—as it was passed under the UN Security Council’s Chapter VII UN Charter powers, it is binding on all Member States. 2 

xxxii  Introduction s­ ecurity risks, such as climate change agreements that limit carbon emissions and encourage the use of renewable energy sources. This then narrows the sphere of legitimate activity and has both seen and unforeseen consequences for states, groups and individuals seeking to protect themselves from perceived threats. The volume encompasses issues of human, political, military, socioeconomic­, environmental and energy security, and raises two main questions: To what extent can international law address the types of natural and man-made security risks and challenges that threaten our way of life or, indeed, our very existence, in the twenty-first century? And, where does international law fall short in meeting the problems that arise in different situations of insecurity and how should such shortcomings be addressed? The book is divided into two parts, with Part I considering different aspects of security, including how different international legal regimes, such as international environmental law and international criminal justice, intersect with what has been traditionally viewed as a concept or value protected by collective security law. Part II focuses on specific threats and considers how both general international law and applicable specific regimes have responded to perceived and actual security threats. Consideration of the evolving understanding of security and its accommodation and protection in international law begins in Professor Nigel D White’s chapter on security agendas and international law, which sets the scene for considering different aspects of security and international law in Part I. This chapter explains how the development of security from the orthodox military and national perspectives has been challenged by the post-Cold War proliferation of security agendas to include economic security, environmental security, food security, bio-security, health security and human security. This development, reflecting the securitisation of daily life, has influenced international legal understandings of security. The influential Copenhagen School’s conceptualisation of security, as a shared understanding of what is considered a threat, which in turn is depicted as part of the wider trend towards ‘constructivism’ in the theorisation of security, is used to shape the analysis. The Copenhagen School has moved the study of security away from the confines of Realist rationalisation of security threats, towards a more democratic construction of security based on shared understandings of organisations, governments, civil society and other non-state actors, including individuals. These theoretical positions, along with the more juristic perspectives, provide essential insights into how security has been incorporated into international law; for example in shared understandings within the Security Council of what constitutes a ‘threat to the peace’, or what it means to take ‘necessary measures’ to protect civilians or, indeed, whether targeted sanctions are administrative or punitive (penal) measures. It also provides

Introduction xxxiii a more functional way of distinguishing the competencies of different security communities such as the General Assembly, regional organisations and defence organisations. By taking a broad view of the subject, but also by its focus on new technologies, the chapter provides an introduction to the themes contained within this volume and also explains the theoretical framework within which international security law fits. Following on from this, in Chapter 2 Hitoshi Nasu reviews the legal development of the concept of human security and considers the legal limits preventing it from being harnessed more widely in other fields of international law. The idea of taking a human-centred and multi-sectoral­ approach to security, which emphasises the empowerment of people in order to enhance their potential through concerted efforts to develop norms, processes and institutions that systematically address insecurities, arguably precedes the formation of the Westphalian system. However, it only entered policy discourse in 1994 when it was included in the UN Development Programme’s annual ‘Human Development Report’. The ‘people-centred’ concept was presented as a broadening of the security paradigm beyond military concerns. Since then, the concept of human security has facilitated the adoption of treaties aimed at the protection of civilians from armed violence and has also informed debates regarding the interpretation and application of existing rules of international humanitarian law. Nasu argues that the idea of human security challenges international law, not only in respect of its sovereignty-based legal framework, but also, more significantly, by questioning the very notion of security shared by policy-makers and jurists. While human security challenges our traditional conceptions of the concept of security, it is not without its own problems in terms of alternative paradigms given, for example, the inherent tension between humanity (at least in its current phase of development) and the environment. In a continuation of the examination of the concept of human security, John Pearson explores the oppositional relationship between human security and environmental security in Chapter 3. The 1994 ‘Human Development Report’ identified environmental security as one of seven key aspects of the central human security paradigm, alongside economic, food, health, personal, community and political securities. In 2007, climate change was declared in a UN Security Council debate as being ‘the greatest threat to global security,’ but one that ‘can bring us together if we are wise enough to stop it from driving us apart.’ Pearson contends that the inextricable links between the other components of the 1994 definition of human security and the environment ought to place environmental security as the top priority of international law and relations. However, the environment, both in terms of its protection and exploitation, remains one of the most contentious international issues,

xxxiv  Introduction primarily due to the unwillingness of states to prioritise global environmental concerns over national interests. Traditional concepts of human security remain at the centre of international negotiations, leading to an anthropocentric approach that fails to take into account the subject matter of the legal provisions being ­discussed—the environment. It is only where the environment, or an aspect thereof, has been placed at the centre of international legal provisions has any measure of success been achieved. Thus, human security remains elusive and unachievable until environmental security is first safeguarded. Consequently, the chapter argues that the continued reluctance and inability of international law makers to place the environment, and not humans or states, at the heart of efforts addressing shared international risks and ensuring human security has condemned those efforts to perpetual inefficacy or absolute failure. While the idea of ‘international’ security might suggest universal consensus on the concept, it is more likely that deeper meaning and understanding can be achieved at the regional level. In Chapter 4 Julia Schmidt examines another important relationship, that between regional security (understood in terms of the UN Charter) and international law. The UN has recently developed a practice of co-operation with regional organisations in the pursuit of securing international peace and security. In 2012, the European Union was awarded with the Nobel Peace Prize for its contribution to the advancement of peace, reconciliation, democracy and human rights in Europe over the last 60 years. The EU’s ambitions as a security provider are not limited to the European continent. Since its common security and defence policy became operational in 2003, the EU has been engaged in more than 20 civilian and military crisis management missions all over the world. The EU is just one of many regional organisations with a security mandate. Some organisations, such as NATO, have been founded to provide security; others have been designed to further the economic interests of its members and have acquired a security mandate over time. The latter thereby respond to the changing nature and origins of threats in a globalised society which make it impossible for states to secure their citizens independently. In 1945, the UN Security Council was assigned with the task of restoring and maintaining international peace and security. The UN Charter foresees only a secondary role for regional arrangements. In practice, regional organisations, whether they fall within the scope of Chapter VIII of the UN Charter or not, assist the United Nations in hard security tasks, including peace-keeping and peace-enforcement. They provide the UN with much needed resources and rapid reaction mechanisms. Although multilateralism can help to overcome some of the UN’s shortcomings, multilateralism also challenges the universal security system of the United Nations in a

Introduction xxxv number of ways: the use of force by regional actors without an explicit UN Security Council mandate; the legal and political questions raised by regional organisations that view themselves as autonomous legal systems; and the problems created by a lack of clear allocations of responsibilities between the United Nations and regional organisations for the functioning of a universal security system. In addition to regional challenges, at the normative level the idea of international security law is underdeveloped and is often overshadowed by ideas of international criminal law and justice. The idea of law, at its most basic level, is embodied in notions of crime and punishment. Although international criminal law has only flourished in the latter part of the twentieth century, its greater normative content and institutionalisation in the form of courts, gives it the appearance of a developed legal regime, when compared to the underdeveloped and politically-dominated area of international law and security. The weaknesses of the International Criminal Court (ICC) have shown the reality but, moreover, have revealed the uneasy interface between international law and security on the one hand and international criminal justice on the other. In Chapter 5 Olympia Bekou examines the inextricable link between international criminal justice and security. This relationship extends not only to those international criminal justice institutions that have been created as a means of restoring international peace and security in the aftermath of mass atrocity, but also to the permanent ICC, which can be seized of jurisdiction following a referral by the UN Security Council, even where the referred state is not a party to the Rome Statute—as with Libya in 2011.3 In international criminal justice terms, this relationship is also encapsulated in the ‘peace versus justice’ debate. Through examining the creation, operation, and termination of international criminal justice institutions and their interaction with security, Professor Bekou’s chapter sheds light on this relationship. The role that international criminal justice plays in enhancing security highlights the tensions, successes and pitfalls that arise from this interaction. The concepts of human security and individual criminal responsibility are different ways of protecting the individual from threats and abuse of their security. Perhaps the curse of the twenty-first century is that there seems to be almost too many concepts and ideas being argued for, that we end up in both normative confusion as well as a failure to deliver on these promises to vulnerable individuals, whether they be in the IDP [internally displaced persons] camps of Darfur or the beaches of Tunisia. Responses to the threat posed by the use of violence against citizens is continued in Chapter 6 by Alexandra Bohm’s exploration of the role of the 3  After the unanimous passing of UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970 (2011).

xxxvi  Introduction ‘­responsibility to protect’ (RtP) doctrine in protecting vulnerable populations from violence. Although RtP is not a legal doctrine, it nevertheless forms part of arguments that international law is not ‘fit for purpose’ in its ability to meet the security threats of the post-Cold War era. Existing legal ­instruments (such as the Genocide Convention or civilian protection mandates in peacekeeping operations) are perceived as inadequate and do not provide a generally applicable blueprint for action. RtP is presented as a method of filling the lacuna in the international peace and security legal architecture and a means of limiting the use of the state sovereignty argument to prevent intervention in situations of a government committing or allowing atrocities to occur against its own population. In exploring alternative understandings of the role the international community can play in dealing with security threats faced by individuals, Bohm challenges the three central assumptions underpinning RtP: (i) that mass atrocity crimes (and associated intra-state crises) are the key threat to individuals today and, (ii) due to the association with domestic governance failures, domestic reform is key to preventing the development of these crises, and (iii) the international community is well-placed to help prevent such domestic failures and to intervene on behalf of those at risk should prevention fail. Instead, Bohm asserts that the focus of RtP on acute crisis situations in which mass atrocity crimes occur minimises the importance and scale of more chronic, systemic injustices (including, for example, poverty and inequality) and prioritises civil and political rights over socio-economic issues (such as health and education). RtP addresses (some of) the symptoms of global injustice rather than the causes and so there needs to be a recalibration in order to include chronic conditions of poverty and inequality, both because these are important in their own right and because socio-economic justice supports good governance and crisis prevention. Relating this discussion to international law more broadly, Bohm concludes that asking if international law is ‘fit for purpose’ because it does not permit military intervention in situations of violence against civilians is asking the wrong question. A doctrine that attempts to expand the ability of states to use force to halt violence, without considering fully the causes of such violence, should be treated with caution. By permitting an increase in the use of (armed) force, the international community may in fact be increasing insecurity and reducing its ability to protect the individual. This collection of essays then moves on to examine specific security threats in Part II, beginning with Chapter 7, in which Tom Coppen considers what is arguably the most existential issue (though environmental lawyers might not agree)—that of nuclear security. The chapter focuses on international law and the Iranian nuclear crisis to provide a legal analysis of the arguments utilised by both Iran and Western states in d ­ iscussing

Introduction xxxvii Iran’s nuclear programme. Through his analysis of key aspects of the Iranian nuclear programme in light of its obligations under the Nuclear Non-Proliferation Treaty (NPT), Coppen highlights the tension between pursuing nuclear non-proliferation and the use of nuclear power as an alternative energy source. His paper focuses on two demands made to the Islamic Republic by the International Atomic Energy Agency (IAEA) and the UN Security Council: that Iran must ratify and implement an Additional Protocol; and that it must suspend certain ‘proliferation-sensitive’ activities. Iran’s nuclear programme and uranium enrichment activities present proliferation concerns for the IAEA and UNSC and is framed in terms of being a threat to international peace and security. Here the question of whether or not Iran is legally obliged to ratify and implement the IAEA Additional Protocol is answered by an analysis of Article III(1) of the NPT, which compels signatory states to accept safeguard obligations on their nuclear activities, as well as of the IAEA Comprehensive Safeguard Agreement and Model Additional Protocol. Iran routinely relies on the NPT to defend its enrichment programme and asserts its ‘inalienable right’ to peaceful uses of nuclear energy. It is therefore appropriate to analyse relevant key provisions of the NPT, namely Articles II (non-proliferation obligation) and IV (right to peaceful use of nuclear energy and right to participate in exchange of nuclear material). Coppen includes the travaux préparatoires, the Review Conferences and subsequent practice when interpreting the NPT, in order to present an often overlooked method of applying the Vienna Convention of the Law of Treaties when interpreting arms control agreements. In Chapter 8, Alexandros XM Ntovas moves away from the activities of states and explores and evaluates the contemporary nature of the threat to international peace and security posed by contemporary maritime piracy. In a sense this is a return to international criminal law, but in a more traditional form, and not one that has (yet) been brought within the remit of the ICC. Ntovas asserts that, as with other twenty-first century security threats, the scope of piracy has significantly broadened, from a narrow international offence that posed a danger to the safety of specific commercial maritime trading routes, to a general economic threat that endangers the shipping and insurance industries, with consequential impacts on international trade and global supply chains. Modern maritime piracy has significantly expanded in its geographical scope and now poses a threat that transcends maritime zones and land regions. In UNSC Resolutions, what was initially determined as a threat ‘against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia’, was later described as a threat to ‘the region of the Western Indian Ocean’, and then, more recently, as a threat to ‘States in the region and other States’.

xxxviii  Introduction Moreover, in terms of economic development and domestic security and stability, the adverse ramifications of piracy are widespread and have even impacted landlocked countries in the region. Ntovas argues that, in parallel with this extension of geographical scope, piracy has also developed into a multifaceted international offence that incorporates a variety of elements, such as financing, planning, implementing and profiting. In particular, the current modus operandi of pirates in demanding a ransom payment for hostages taken from tourist resorts demonstrates the existence of effective transnational systems that enable the pirates to channel the payment of ransoms through an existing money laundering network in order to access the funds. Although international law provides a broad legal framework applicable to combating piracy, including the maintenance of universal jurisdiction, and the international community is involved in developing more sophisticated responses aimed at emphasising the duty of states in the suppression of piracy, international law enforcement will remain unproductive unless effective law-making and judicial structures are created to comprehensively address the modern legal nature of piracy. It remains to be seen, however, whether the most challenging aspect of combating contemporary maritime piracy emanates from the act itself, or from the growth of a peripheral transactional industry rooted in societies and economies far from the theatre of piratical scenes. In Chapter 9 on the relationship between security and terrorism, Lydia Davies-Bright returns to the acts of states and individuals and examines how the sociological, legal and political impact of acts of terrorism have been felt, responded to and pre-empted over the past decades by looking at key events in the history of terrorism: the Lockerbie bombing and subsequent circumvention of the 1971 Montreal Convention; the 2005 extra-judicial killing of Jean Charles de Menezes in London; and the 2011 extra-judicial killing of Osama bin Laden in Abbottabad. She argues that the journey from confronting terrorism through the criminal law paradigm, with widely supported treaties that reinforce the criminal law approach, to an increase in executive action, with the UNSC overriding such treaties but remaining loosely within the criminal law framework by producing a trial of the Lockerbie suspects, to a military and pre-emptive framework, with the extra-judicial killing of persons that completely bypasses any criminal law process, threatens the security of individuals and undermines a key principle upon which the international legal order was ostensibly built—namely that each human person possesses an inalienable human dignity by virtue of the fact that they are a human person. Within this narrative, Lockerbie can be seen as a crucial moment in the move from the criminal to the military paradigm, with the UNSC beginning to overtly consider terrorism as a general threat to international peace and security. Post 9/11 this then became its default position on all acts of

Introduction xxxix international terrorism—they fall under the UNSC’s mandate in Article 24 of the UN Charter for the maintenance of international peace and security. The general consensus is that exceptional national and international action is required in order to counter this previously unprecedented threat. The resulting curtailing and infringing of individual human rights and civil liberties is perceived as an unfortunate, but necessary, consequence of the fight to protect essential freedoms and values. Davies-Bright argues that the individual citizen is now less secure as the safeguards of human rights and civil liberties are no longer an adequate protection in a world where simply being a suspect is potentially enough to warrant an executive death sentence. Continuing with the theme of threats posed to the individual by manifestations of the state, Jure Vidmar focuses Chapter 10 on the threat to security posed by abusive governments, and considers the normative underpinnings and collective response to the actions of non-democratic governments in the post-Cold War era. Traditionally, governmental legitimacy in international law was a matter of effective control over a certain geographical and defined territory. This doctrine appears to be changing. Post-Cold War, it has been argued that governmental legitimacy in contemporary international law originates in democratic elections and not merely from being able to maintain physical control over a defined area. Concurrent but independent to the pro-democratic endeavour in international law, a practice of international collective responses has developed that denies legitimacy to governments seen as being abusive of their people. The changing doctrine on governmental legitimacy is exemplified in Security Council Resolutions 1970 and 1973 of 2011 on Libya.4 It may be argued that the response to the situation in Libya marks a significant turning point in the attitude of the international community to abusive governments. It may also be invoked as an operationalisation of the controversial concept of the responsibility to protect. However, the international response to Libya may also be put into the context of an already-developing­doctrine. Although legal consequences of governmental abusiveness have varied, the concept seems to have been the motivation behind international responses to the situations in Afghanistan, East Timor, Haiti, Kosovo and Sierra Leone. In these situations the Security Council, acting under Chapter VII of the UN Charter, established the existence of a threat to international peace and security, even though the situations often seemed to be of a domestic, rather than international, nature. Thus, the Security Council has called for the change of effective governments and also used its binding powers to create territorial administrations on the justification of governments being

4 

UNSC Res 1970 (n 3) and UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973 (2011).

xl  Introduction abusive to their own people. This indicates that governmental abusiveness is considered to be a threat to international peace and security, even in the absence of the threat or use of force in international relations. However, Vidmar argues that governments do not lose their legitimacy simply by not adopting a certain political system. Instead, recent practice may suggest that coup regimes will be viewed as illegitimate where they overthrow democratically-elected governments and that, in some circumstances, abusive governments may be internationally denied the right to represent the people they claim to represent. In this context, there appears to be an emergence of a terminological difference between coup and regime-change—under some circumstances, a change of government is internationally unacceptable and in others it is at least tolerated, if not internationally encouraged. The international practice towards changes in government is analysed in order to ascertain the international legal framework governing such situations. Vidmar asserts that a government may lose its international legitimacy on the basis of abusiveness directed against its own people; however, such an occurrence is not automatic but depends upon collective action. Thus, the practice is not uniform and is also dependent upon relevant political and economic factors that influence the international community’s approach and perception of the threat to security. In Chapter 11, Prabhash Ranjan moves the discussion on from the relationship between individuals to consider the relationship between the state and investors by focusing on the protection of a state’s security interests in international investment law. Again we can see how the idea of ‘security’ permeates sub-disciplines of international law, such as international investment law, leading to the question of whether there is an overarching framework of international security law. Alternatively, is security an extra-legal (meta) value that can trump positive law, as it sometimes seems to before domestic courts? The regulatory measures adopted by Argentina in response to its severe economic crisis in 2000 were challenged by foreign investors using the investor-state treaty arbitration provided in Bilateral Investment Treaties (BITs) as being a violation of their rights protected by the BIT. Argentina argued that these measures were necessary for safeguarding its ‘essential security interests’, whereas foreign investors argued that the adopted regulatory measures were not necessary and violated different substantive BIT protections. These disputes have brought to the fore the question of when host states can deviate from their BIT obligations in order to safeguard their essential security interests. The emerging jurisprudence and the scholarly response to these cases pose two fundamental questions: First, whether protecting security interest in BITs is limited to strict security related interests, or does it have a broader meaning to include non-security related interests? Second, when can a regulatory

Introduction xli measure adopted by a host state be deemed to be ‘necessary’ to safeguard its essential security interests? Ranjan’s chapter looks at the nature of essential security interests that may permit a temporary deviation from or suspension of investment treaty obligations. Different investment treaty arbitration tribunals have adopted diverse approaches in interpreting essential security interest in BITs, which can be placed into two broad categories. The first category includes cases where the relevant BIT explicitly recognises ‘essential security interests’ as one of the grounds for the host state to deviate from its treaty obligations and the conditions for its invocation and deviation. This is considered not to be a ‘self-judging’ clause, which means that the BIT provides the host state with the regulatory latitude to deal with threats to its important security interests. Ranjan demonstrates that divergence in the arbitral jurisprudence on interpreting such clauses has added to the confusion regarding when a host state can suspend its treaty obligation to achieve its essential security interests. This confusion is more so because all these cases have interpreted the same treaty provision and almost the same situations differently. The second category of cases is those where the BIT has an explicit exception that is self-judging and it contains a list of activities related to ‘security interests’, allowing the host state to temporarily deviate from its treaty obligations in order to protect those security interests. Given the divergence within the relevant jurisprudence, Ranjan concludes that the substantive law contained in BITs is in need of reform so as to provide clarity regarding the meaning of essential security interests and the conditions in which the host country can temporarily deviate from treaty obligations in order to achieve its essential security interests. Such reformulation will not only help a host state in exercising its regulatory power and defending its essential security interests without violating the BIT, but will also bring about more certainty and predictability in the investment treaty regime. Such reform may then add to the overall global security picture by increasing certainty in investment and other financial and economic contexts. In a globalised world, no element of inter-state relations stands in isolation and insecurity in one area may be manifested in another. A breakdown in investment relations, or perceived slights in the interpretation of treaty provisions, may impact the willingness of states to sit around the negotiating table on other global security issues, such as climate change. In a different zonal approach to the security question, in Chapter 12 Jill Barrett examines the security threat faced by the Antarctic and the ­Arctic—from disputes over territory and maritime delimitation, to weapons testing, hazardous waste disposal and competition for living and mineral resources. The unique ecosystems in those areas have an intrinsic value unrelated to anthropocentric concerns, as well as being crucial for scientific climate research and the effects of sea level rise. With a much

xlii  Introduction weaker international environmental legal protection than the Antarctic, the Arctic is currently facing significant threats as climate projections predict ice-free summers in approximately 20 years, which brings the prospect of rapid increases in navigation, oil and gas exploitation and tourism. This risk has led to calls for a new Arctic Treaty based on the content of the Antarctic Treaty (AT). However, there are many crucial differences between the Arctic and the Antarctic that make such a direct transposition of the AT inappropriate. Antarctica is a land continent, surrounded by sea and islands and with no settled human population, whereas the Arctic consists of a vast ocean, surrounded by states, and is home to approximately four million permanent human inhabitants. The AT has been in force for over 50 years and has achieved its principal security objective of keeping the Antarctica ‘exclusively for peaceful purposes and not … the scene or object of international discord’. The cornerstone of the AT system is the pact that enables sovereignty disputes to be resolved in favour of international co-operation, the whole of Antarctica to be designated a natural reserve, devoted to peace and science, with high standards of environmental protection and a complete ban on mineral exploitation. Nevertheless, the AT system undoubtedly faces challenges and strains, as is evident from recent controversies over continental shelf submissions and responses. Some argue that it is based on outdated colonial notions of sovereignty and so should be replaced by a universal governance regime. In order to maintain and sustain its objectives, the AT system needs to improve compliance, expand its membership, and find more effective ways of engaging non-parties and their nationals and operators. In contrast, the debate over Arctic governance appears almost to be in reverse, with ‘idealists’ extolling the virtues of the AT as a model for the Arctic and ‘realists’ arguing against new institutions, preferring to concentrate on the universal ratification of United Nations Convention on the Law of the Sea and other existing treaties, and to continue informal inter-governmental co-operation through the Arctic Council. However, the security of the Arctic environment will be increasingly affected by the conduct of non-Arctic nations and their nationals. Thus, this issue becomes a global one and the need to bind the international community to standards of socially responsible and environmentally sustainable exploitation of resources may drive the Arctic states to negotiate legally binding instruments for the region. The AT may provide some useful ideas with which to start the negotiation process; however, in order to be effective and achieve security for the Arctic region, significant adaptation would be required. In Chapter 13, Mattia Fosci returns to the issue of the environment and its impact on security, by specifically considering the theme of climate change as a threat to international security. Fosci focuses on the

Introduction xliii increasing climatic variability caused by anthropogenic greenhouse gas emissions—widely regarded as a source of instability and a threat to international security in the twenty-first century. The direct impacts of climate change include extreme weather events and the exacerbation of existing intra- and inter-state tension and conflict. The human consequences of climate-induced migration, reductions in access to freshwater, disruptions to agricultural production and the consequent pressure of negative economic development are often felt by those states with a limited ability to deal with such events, yet are a result of global activity. Thus, given the global nature of the causes and consequences of climate change, any credible solution requires broad international cooperation. In 1992 the UN Framework Convention on Climate Change (UNFCCC) established the applicable international legal regime and focused on mitigating the causes of climate change, with a view to reducing its future impacts. In 1997 the Kyoto P ­ rotocol introduced quantified emission reduction and limitation targets for contracting Parties and a system of penalties for non-compliance­. However, due to political, economic and equity considerations, developing countries were excluded from emission reduction commitments. This, combined with US non-adherence and the general apathy of developed states, has significantly limited the Protocol’s impact. UNFCCC Parties are currently negotiating a new protocol with more stringent mitigation targets, broader participation and a greater e­ mphasis on increasing adaptation capacity in developing countries. However, progress is slow and the prospect of concluding a new protocol in 2015 is far from certain. The failure of the international community to develop and implement an effective legal regime in order to tackle the threat posed by global climate change highlights the limitations of international law when dealing with complex, politically sensitive global problems with far-reaching economic implications. When the stakes are high, states seem to revert from a constructivist to a neorealist model of international relations, whereby multipolar power relations and resource politics prevail over international cooperation and the common environmental concerns of states. Political machinations also prevent more incisive action by the UN Security Council in this area. Thus, the consensus-based model appears to be ineffective in addressing the threat of climate change. Fosci argues that attitudes towards climate change will probably only shift when the first substantial impacts of the phenomenon are felt. Institutions such as the UN Security Council and NATO may then play a bigger part in responding to the emerging security threats, but equally the UNFCCC may also regain prominence in crafting a long-term cooperative solution to the challenges of mitigation and adaptation. Thus, the current role of international law is to maintain international discussions, despite the absence of political will, to clarify country positions, to frame ­problems

xliv  Introduction in a constructive way and to identify a portfolio of possible solutions to the problem. In due course, this may prove of great value to the international community and may facilitate a viable solution to perhaps the most significant security threat of the twenty-first century. The idea of international law providing the language of diplomacy and allowing for common ground to be sought when the political context is right leads us back to the discussions in Chapter 1, in which new technologies are discussed, and to the final chapter of this volume. In Chapter 14, Russell Buchan and Nicholas Tsagourias focus on cyber-attacks and threats. In the modern age, with citizens and states increasingly relying on the internet and other cyber activity for the economic, political and social aspects of daily life, cyberspace has become the source of numerous potential threats in a variety of forms. Cybercrime, cyberterrorism, cyberespionage and cyber-attacks are some of the most common cyber threats that face individuals and states in the twenty-first century. Buchan and Tsagourias identify the most serious threats that arise in and from cyberspace, consider the appropriate international legal regime applicable to such threats and ask whether international law can sufficiently address such threats, or whether new international legal norms are required. In keeping with the other security subjects discussed in this collection, the focus is primarily on military-like cyber-attacks committed against states by other states, or by non-state actors, and assesses the adequacy of the international legal regime on the use of force to protect states from this new security threat. Due to the fast-paced nature of recent technological advancement, existing legal principles and instruments are often reinterpreted in order to provide regulation for a new development. The recognition of cyberspace as requiring its own legal regime would help to foster common understandings of rights, obligations and actions and assist in the dissemination of relevant norms and principles. This may improve the cyber security of both states and individuals, although, as with the other areas discussed in Part II, it would require a significant level of international co-operation and a prioritisation of global security over national and territorial interests. From the contributions to this volume, it is clear that ideas of security have changed over time. From the state-centric militarised position of the Westphalian model that largely conceptualised threats as emanating from without (be it from external enemies, such as in the form of foreign militaries, or from external ideologies that endanger the status quo, as in the religious wars in Europe during the sixteenth and seventeenth centuries), the concept of security appears to have now broadened in order to encompass a variety of threats at the (macro) global level, the state level and the (micro) individual level. However, although technology and the ability to communicate have improved exponentially, along with the overall global

Introduction xlv human population, it may be that the security threats facing humanity in the twenty-first century may in fact be further manifestations of the ageold threats of other human groups and the geology of this planet. As Helen Keller said in the 1950s and as echoed by Salman Rushdie in 2012,5 security is not real and neither humans nor nature experience it. However, the insecurity faced by all life that lives on the earth perhaps makes life more interesting—it certainly makes for interesting academic discussions and affords us the opportunity to examine our interactions through the establishment of legal regimes designed to reduce the level of insecurity faced on a daily basis by all human groups.

5  R Singh, ‘Hay Festival 2012: Salman Rushdie on Security and The Satanic Verses’ The Telegraph (3 June 2012) www.telegraph.co.uk/culture/hay-festival/9309641/Hay-Festival2012-Salman-Rushdie-on-security-and-The-Satanic-Verses.html.

xlvi

Part I

Conceptions of Security and International Law

2

1 Security Agendas and International Law: The Case of New Technologies NIGEL D WHITE

You will not apply my precept,’ he said, shaking his head. ‘How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?1

I. INTRODUCTION

‘S

ECURITY’ AS A concept would provide a serious challenge to ­Sherlock Holmes in terms of detecting any definite meaning, any core of truth within it. In terms of the international legal order, ­‘security’ is not viewed as a legal principle but is seen as the ‘primary’ purpose of the principal inter-governmental organisation of the post-1945 legal and political order.2 It is worth considering the relevant provisions of the UN Charter in greater detail because they contain a tension between security and justice, by placing security (partly) within the framework of international law. Article 1 of the Charter declares that the purposes of the UN are: 1. To maintain international peace and security, and to that end: to take effective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 1  Sherlock Holmes to Doctor Watson in A Conan-Doyle, The Sign of Four (London, P ­ enguin, 1982) 51, emphasis in original. 2  Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151 at 168 where the Court stated that ‘the primary place ascribed to international peace and security is ­natural, since the fulfilment of the other purposes will be dependent upon the attainment of that basic condition’.

4  Nigel D White 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international co-operation in solving international ­problems of an economic, social, cultural or humanitarian ­character, and in ­promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, ­language, or religion; and 4. To be a centre for harmonising the actions of nations in the attainment of these common ends. International lawyers tend to focus their attention on the principles of the UN Charter contained in Article 2, which include principles ­applicable to the UN, of sovereign equality and non-intervention, and duties upon states, primarily the obligation to settle disputes peacefully and the duty to refrain from the threat or use of force. However, Article 1(1), is ­important for international law more broadly because it sets the UN the task of ­pursuing peaceful settlement of disputes in accordance with ­international law but, read literally, it does not subject the UN’s collective measures taken to tackle threats to, or breaches of, the peace to the same legal framework. The prospect of UN security action unbound by international law runs like a red line through the Charter: the principle that the UN should not intervene in domestic affairs does not prejudice action taken by the Security Council under Chapter VII.3 The ban on the use of force allows for only two exceptions—self-defence against an armed attack and military action taken to combat threats to and breaches of the peace as authorised by the Security Council under Chapter VII.4 The content of the Charter seems to favour ‘security’, especially the collective coercive type found in Chapter VII, over ‘law’. The achievement of peace and security is the raison d’être for the establishment of the UN, and international law is instrumental or ­ ­secondary to that. However, paragraphs 2, 3 and 4 of Article 1 contain the basis for the development of a much more impressive legal architecture that could, potentially, provide a robust framework for security action by placing both the development of self-determination of peoples and the promotion of respect for individual human rights as purposes of the UN, alongside the achievement of peace and security. Within the human rights legal framework subsequently created by the UN in instruments and t­ reaties that followed the Charter,5 freedoms and rights

3 

Article 2(7) UN Charter 1945. Articles 2(4), 51 and 42 UN Charter 1945. 5  Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) and the International Human Rights Covenants of 1966. 4 

Security Agendas and International Law 5 are curtailed by considerations of security, both national and human. While security was born free in 1945, it has gradually been shackled by legal constraints. However, those shackles are not strong enough to prevent the Security Council from behaving as if it remained unbound by international law. Rather than focus this chapter on the Security Council, a topic covered in detail in many books and articles,6 the focus will be on the shifting ground of security agendas and those communities established to deliver them. The chapter then considers whether this has involved the application or development of international laws to constrain potential threats, using the example of new technologies. Essentially, the chapter reviews whether, in the twenty-first century, the UN tackles new security threats in an executive manner through the Security Council, or whether it has (also) addressed these issues through legal frameworks and constraints. The relationship between security and law is one that is played out at all levels, from local, to national, to regional and then international. It is a delicate one—too greater emphasis on security erodes rights and freedoms and may lead to despotism, while too greater emphasis on law may prevent action necessary to tackle existential threats. In the 1960s, international lawyers had come to view the ‘harnessing of technology by public international institutions’ as opening ‘encouraging prospects for the control and direction of social change’. However, that view has changed so that today ‘technology is no longer seen ­predominantly as promise but often rather a threat’ and, furthermore, concern is widespread that the ‘ability of public international organizations to manage technological change has been very limited’.7 New technologies seem to be a long way ahead of specific legal regulation, especially at the international level where consensus is difficult to achieve, and yet, without such regulation, they represent possible threats to peace and security when, with effective legal controls, they have the potential to enhance both peace and security. II.  THE PROLIFERATION OF SECURITY AGENDAS

Drawing on the work of the Copenhagen School, ‘security’ can be best understood as the absence of existential threats against states, other

6  Eg V Lowe, A Roberts, J Walsh and D Zaum (eds), The United Nations Security Council and War (Oxford, Oxford University Press, 2010); ND White, ‘The Security Council, the Security Imperative and International Law’ in M Happold (ed), International Law in a Multipolar World (Abingdon, Routledge, 2012) 4. 7  M Koskenniemi, The Gentle Civilizer of Nations (Cambridge, Cambridge University Press, 2002) 512.

6  Nigel D White s­ecurity actors, peoples and individuals.8 The development of international relations to encompass ‘collective security’ and ‘human security’ has not meant that ‘state security’ is no longer important. What it does mean is that we have different, often competing, conceptions of security. Realist understandings of state or national security have prevailed for much of the twentieth century. The focus of Realism is on the safety of the nationstate, which results in placing national interests over collective interests and, thereby, national security over both collective security and human security, unless they coincide.9 The Realist vision of security is still strong and has survived the Cold War confrontation between two heavily armed superpowers. Several factors can be pointed to explain its survival. Firstly, states clearly still represent threats to other states, particularly those possessing nuclear weapons or other weapons of mass destruction (WMD). Secondly, what were once mainly domestic threats, such as ­terrorism, have become transnational and, more generally, globalisation has led to internal security-focused politics becoming increasingly e­xternalised.10 This means that national security issues are increasingly played out on a global scale, as evidenced by the terrorist attack on the United States of 11 September 2001 that led the US to wage a ‘war on terror’, more specifically a war against al-Qaeda, impacting around the globe (as shall be seen below when ‘drone wars’ are considered). Nonetheless, despite the continuing strength of national security, the concept of security has not only widened to include non-military threats, such as those arising from food or environmental insecurity, but has also deepened to encompass human security.11 Richard Falk defines ‘security’ in a very ‘human’ way as the ‘negation of insecurity as it is specifically experienced by individuals and groups in concrete situations’.12 The focus of international debate is increasingly on human security, which has been defined to include ‘economic, environmental, social and other forms of harm to the overall livelihood and well-being of individuals’.13 Clear ­evidence of the widening understanding of security is found in the ­pivotal post-Cold War UN Security Council summit held in January 1992. As an organ that was built on Realist foundations, requiring agreement amongst its five permanent members (China, France, Russia, UK, and USA) for any substantive decision, the UN Security Council had hitherto almost ­exclusively concerned itself with state and military security. 8  B Buzan, O Waever and J de Wilde, Security: A New Framework for Analysis (Boulder, Lynne Rienner, 1998) 5. 9  H Morgenthau, Politics among Nations (New York, A Knopf, 1972) 973. 10  P Hough, Understanding Global Security (Abingdon, Routledge, 2008) 2. 11  ibid 8. 12  R Falk, On Humane Governance: Toward a New Global Politics (Cambridge, Polity, 1995) 147. 13  FO Hampson, ‘Human Security’ in PD Williams (ed), Security Studies: An Introduction (Abingdon, Routledge, 2008) 229, 231.

Security Agendas and International Law 7 However, at its summit it declared that the ‘absence of war and military conflicts amongst States does not itself ensure international peace and security’ and that ‘non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security’.14 As noted by Don Rothwell, the ‘traditional view of security defines it in military terms with the primary focus on state protection from threats to national interests’. However, with the end of the Cold War, ‘security discourse has expanded beyond the traditional military domain with the proliferation of security agendas including economic security, environmental security, food security, bio-security, health security and human security’.15 As identified by Hitoshi Nasu, during the Cold War ‘national security from external military attacks and threats was recognised as the ultimate raison d’être of sovereign states’.16 The Security Council supplemented this with the concept of international security in the post-Cold War period, evidenced by its authorisation to coalitions of willing states, starting with Coalition action against Iraq,17 to undertake military actions to deal with threats to and breaches of international peace. Attempts to understand security as a fixed concept fail to capture the securitisation of many aspects of daily life. Rather, security should be understood, according to the Copenhagen School, as a ‘shared understanding of what is considered a threat’.18 As Ronald Dannreuther explains, this reflects the turn towards ‘constructivism’ in the theorisation of security ‘with its focus on subjective ideas and intersubjective understandings’, which ‘accords a greater weight of how ideas and perceptions influence and structure international reality’.19 The constructivist approach of the Copenhagen School shifts ‘attention away from an objectivist analysis of threat assessment to the multiple and complex ways in which security threats are internally generated and constructed’.20 Furthermore, the Copenhagen School moves the study of security away from the narrow confines of the Realist neo-scientist ‘rationally calculating the multiple security threats’, towards a more democratic construction of security

14  UNSC ‘Security Council Summit Statement Concerning the Council’s R ­ esponsibility in the Maintenance of International Peace and Security’ (31 January 1992) UN Doc S/ 23500. 15  DR Rothwell, KN Scott and AD Hemmings, ‘The Search for Antarctic Security’ in AD Hemmings, DR Rothwell and KN Scott (eds), Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives (Abingdon, Routledge, 2012) 3. 16  H Nasu, ‘Law and Policy for Antarctic Security’ in Hemmings et al, ibid, 19. 17  UNSC Res 678 (29 November 1990), UN Doc S/RES/678 (1990). 18  ibid 25; Buzan, Waever and de Wilde (n 8), 23–26. 19 R Dannreuther, International Security: The Contemporary Agenda (Cambridge, Polity, 2007) 40. 20  ibid 42.

8  Nigel D White based on shared understandings found in organisations, governments, civil society and other non-state actors, including individuals.21 The Copenhagen School identifies those objects that are existentially threatened as ‘referent objects’.22 The referent object for security has ­‘traditionally been the state and, in a more hidden way, the nation’. This signifies that ‘for a state, survival is about sovereignty, and for a nation, it is about identity’. However, following the constructivist approach, ‘securitising actors can attempt to construct anything as a referent object’.23 For the Copenhagen School, the ‘referent object’ is traditionally the state, although with new security agendas developing all the time, the object can be collective concepts, such as the environment or regions, such as Antarctica, and this is reflected in the UN Security Council’s expansion of the concept of threat.24 These ideas are very helpful in understanding the fact that security has expanded, although it remains largely state-centric, and that it is best viewed through a constructivist lens as being founded on inter-subjective understandings within legitimate fora, such as the UN Security Council, UN General Assembly, and regional organisations, such as the Organisation of American States (OAS), ­African Union (AU), EU, Arab League and Association of S ­ outheast Asian Nations (ASEAN). III.  SECURITY COMMUNITIES AND THE ACHIEVEMENT OF AGREEMENTS

In 1957, Karl Deutsch, having considered various historical arrangements of states that had succeeded in removing conflict within their membership, defined a ‘security community’ as ‘one in which there is a real assurance that the members of that community will not fight each other physically, but will settle their disputes in some other way’. He went on to say that ‘if the entire world were integrated as a security-community, wars would be automatically eliminated’. By integration, he did not mean amalgamation into one state, rather the attainment of a ‘sense of community and of institutions and practices strong enough and widespread enough to assure, for a long time, dependable expectations of peaceful change’.25 ‘Whenever states become integrated to the point that they have a sense of community’ there is ‘assurance that they will settle their differences short of war’.26

21 ibid. 22 

Buzan, Waever and de Wilde (n 8) 36.

23 ibid. 24 

Nasu (n 16) 25–26. K Deutsch, Political Community and the North Atlantic Area: International Organization in the Light of Historical Experience (New York, Greenwood, 1957) 5–6. 26  E Adler and M Barnett, ‘Security Communities in Theoretical Perspective’ in E Adler and M Barnett (eds), Security Communities (Cambridge, Cambridge University Press, 1998) 4. 25 

Security Agendas and International Law 9 Community building is a product of ‘shared understandings, transnational values and transaction flows’ and, once established, a ­security c­ ommunity generates stable expectations of peaceful change.27 Although the UN collective security organisation has not approached Karl Deutsch’s concept of a security community, evidenced by the continuation of regular and frequent conflicts in the post-1945 world order, it has helped humankind to achieve the basic condition of any security community—survival.28 There is evidence that the UN emerged from the Second World War as a form of ‘security community’ in order to consolidate the hard won peace by continuing the alliance that had defeated Germany and Japan. Ian Brownlie considered that the prosecution of the Second World War by the Allies against the Axis powers went beyond ­collective defence and became a war of sanction, the purpose of which was to remove a ­danger to world peace by extirpating the source of aggression. He stated that such a war of sanction in the UN period no longer has any place unless it is an ‘organized community action’. Indeed, Brownlie views the prosecution of the Second World War as linking into the creation of the UN, even though the organisation was not formally created until the War’s end, as the ‘majority of states entered the war against the Axis Powers on the basis of the United Nations Declaration of 1942 and the Moscow ­Declaration of 1943’.29 Following this line of argument, a security community was constituted in 1945 when the UN was established, but its origins can be traced back to 1942 when the Allied powers proclaimed themselves the ‘United Nations’ not only to defend themselves from Axis aggressors, but to defeat them completely and then shape a global peace.30 The UN certainly was a much changed collective security organisation when compared to the League of Nations, with the founding states of the UN collectively giving the smaller ‘executive’ or ‘governing body’, the Security Council of 15 states (increased from 11 in 1965), ‘primary responsibility’ in the realm of restoring or maintaining international peace and security.31 The Security Council’s powers are specified under ­Chapters VI and VII of the UN Charter, with the former containing a range of ­recommendatory powers in relation to the peaceful settlement of disputes or situations that might endanger the peace, including fact-­finding and recommending methods of adjustment or terms of settlement.32

27 

ibid 4–6. Deutsch (n 25) 3. 29  I Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 332–33. 30 But see JW Wheeler-Bennett and A Nicholls, The Semblance of Peace: The Political ­Settlement after the Second World War (London, Macmillan, 1972) 528–53. 31  Article 24(1) UN Charter. 32  Articles 34, 36, 37, 38 ibid. 28 

10  Nigel D White The  powers contained in Chapter VII to demand provisional measures, such as cease-fires, to take a range of non-forcible measures, including economic sanctions, and to take military action,33 are contingent upon the Council making a determination of a ‘threat to the peace’, ‘breach of the peace’ or ‘act of aggression’.34 The Security Council has adopted an expansive interpretation of ‘threat to the peace’ to include not only threats of force and threats to inter-state security, but also to cover internal violence and conflicts that have the potential to spill over into neighbouring states, as well as threats from terrorists and pirates.35 The concentration of power in the hands of the Security Council has led to a continuing debate as to where competence lies, if at all, if the Council is unable to act due to collective inaction or, as was the case during the Cold War, due to the pernicious use of the veto. While the voting rules of the Security Council were an improvement on the requirements of unanimity in the League of Nations’ Covenant,36 they still require consensus within the P5.37 The veto was so prevalent during the Cold War, cast primarily by the Soviet Union (who used its veto 77 times in the first 10 years of the UN) and later by the US, that the UN was often reduced to a bystander (as during the war in Vietnam 1959–75) or, at best, to a forum for diplomacy between the superpowers (for example during the Cuban Missile Crisis of 1962). The veto is evidence that the Security Council was not fashioned as an automatic ‘instrument of action’ rather, as Inis Claude pointed out, its basic function is as a forum for negotiation and diplomacy.38 It follows that it is fallacious to argue that the UN had failed simply because it was unable to take action against the US and Soviet Union during the Cuban Missile Crisis. The UN still served as a forum for negotiation between the two superpowers, enabling both to climb down from their position of near nuclear confrontation. If the Council fails to fulfil even its basic function as a forum for diplomacy, then it can be argued that it has not carried out its primary role for the maintenance of international peace and security, as placed upon it by the UN Charter,39 and authority must therefore pass

33 

Articles 40, 41, 42 ibid. Article 39 ibid. 35 For example UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373 (2001) re ­terrorism; and UNSC Res 1846 (2 December 2008) UN Doc S/RES/1846 (2008) re piracy. See generally C Henderson, ‘The Centrality of the United Nations Security Council in the Legal Regime Governing the Use of Force’ in ND White and C Henderson (eds), Research Handbook on International Conflict and Security Law (Cheltenham, Edward Elgar, 2013) 120. 36  Article 5 Covenant of the League of Nations 1919. 37  Article 27(3) UN Charter requires decisions to be ‘made by an affirmative vote of nine [originally seven] members including the concurring votes of the permanent members’. 38  I Claude, ‘The Security Council’ in E Luard (ed), The Evolution of International ­Organization (London, Thames and Hudson, 1966) 83–88. 39  Article 24(1) UN Charter. 34 

Security Agendas and International Law 11 to another security community, either to the UN General Assembly or, ­arguably, to established and competent regional security organisations. Having outlined security agendas and communities, this chapter now considers how the advent of new technologies has affected security and how the UN has responded to these developments by helping to shape a normative framework for regulating new technologies and for dealing with any emerging threats. At this stage, it should be reiterated that the response to new technologies should be a combination of normative development (by the General Assembly and other norm-making bodies within the UN) and executive action dealing with immediate existential threats. Although that executive action is not confined to responding to breaches of international law, the legitimacy of such action is enhanced if it does indeed amount to an enforcement of existing law. IV.  THE UN AS A SECURITY COMMUNITY ON NEW TECHNOLOGIES

Bearing in mind that a security community is not simply concerned with creating a normative framework within which to tackle disputes and threats, nonetheless it is surprising that, in general terms at least, the UN has struggled to produce a normative framework for new technologies. In other areas of international relations, UN soft law, in the form of declarations, has eventually led to UN hard law, in the form of binding treaties. This has happened in human rights law, environmental law and, to a more diffuse extent, arms control law, but we see little of this development as regards new technologies, for example on the issue of cyber security. It is not that the UN is unaware of the issue—in 1999, for instance, the General Assembly adopted a resolution calling upon states to ‘promote at multilateral levels the consideration of existing and potential threats in the field of information security’ and went on to invite states to inform the Secretary General on the advisability of ‘developing international principles that would enhance the security of global information and telecommunications systems to help to combat information terrorism and criminality’.40 The cagey language of this resolution reflects a profound disagreement between the membership of the UN, specifically within the P5 of the ­Security Council. As related by Mary Ellen O’Connell, Russia has promoted a treaty along the lines of the Chemical Weapons Convention to regulate cyberspace, which it viewed as a similar dual use issue— ‘Russia’s proposed treaty would ban a country from secretly embedding

40  UNGA ‘Developments in the field of information and telecommunications in the context of international security’ Res 53/70 (4 December 1998), UN Doc A/RES/53/70.

12  Nigel D White malicious codes or circuitry that could be later activated from afar in the event of war’. The US, however, differed in its approach following the ­success of the Stuxnet worm cyber-attack on Iran.41 It is difficult to construct a treaty or other legal regulatory mechanism that governs something as complex and multidimensional as the use of cyberspace. Achieving consensus on something that can be seen both as an important modern form of freedom of information and as a threat to security is one of the greatest challenges facing the UN. The item on ‘developments in the field of information and telecommunication in the context of international security’, first placed on the agenda of the General Assembly in 1999, has remained there as an annual item, though little progress has been made. In 2010, the General Assembly identified that there were a number of existing and potential threats in the field of information security. The Assembly urged states to develop ‘strategies’ to address ‘threats emerging in the field, consistent with the need to preserve the free flow of information’. Intriguingly, the Assembly also considered that the ‘purpose of such strategies could be served through further examination of relevant international concepts aimed at strengthening the security of global information and telecommunications systems’. The Assembly went on to invite states to look at the recommendations contained in the Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International ­Security, in particular both the aforementioned ‘concepts’ as well as ‘measures’ that might be taken to strengthen information security.42 Unfortunately, the Report did not develop the ‘concepts’ that might constitute a normative framework to shape the use of cyberspace. States’ responses to the Assembly’s request contain some discussion of relevant ‘concepts’. The Australian ­Government stated that ‘existing international law ­provides a framework for protection from information security threats arising from a variety of actors’, mentioning a range of existing international legal ­principles applicable to the use of cyberspace (sovereign equality, the prohibition on the use of force and international humanitarian law), but admitted that greater discussion among states was necessary to refine the scope of applicability of these principles to threats emanating from the cyber realm.43 The United States stated that principles of the jus ad ­bellum and jus in bello were applicable, while the UK used the more modern terminology of the law governing the use of force and armed conflict.44

41  ME O’Connell, ‘Cyber Security without War’ (2012) 17 Journal of Conflict and Security Law 187, 205–06. 42  UNGA Res 65/41 (8 December 2010) UN Doc A/RES/65/41. 43 UN Disarmament Study Series 33, ‘Developments in the Field of Information and ­Telecommunication in the Context of International Security’ (UN, 2011) 22–23. 44  ibid 35–36, 56.

Security Agendas and International Law 13 A further Governmental Expert Group Reports has followed,45 but with a similar lack of content that does not address the suggested limitations in state responses to laws governing the use of force and armed conflict. Such an approach narrowly confines security threats to cyber-warfare in a literal sense, when many non-kinetic cyber-operations and cyber-crimes do not reach that level and yet may still constitute security threats. One problem is to convert new understandings of threats to security into legal concepts, principles and rules that together will shape a legal regime, the purpose of which is to enable organisations and states, and other security actors, to address such threats. One of the barriers to this is the way international law is divided into subject areas. New technologies raise concerns as a cross-cutting issue of security in a number of areas. General principles and specific norms from various specialist areas of international law may be applicable: arms control law, human rights law, international humanitarian law and international environmental law, to name the most obvious. However, when new technologies are used to destabilise states, such as cyber-attacks on another state’s internet ­capabilities, as happened in Estonia in 2007, specialist legal regimes give way to discussions revolving around general principles of international law, such as non-intervention,46 which can have limited traction in international affairs. Furthermore, the problems of identifying the origins of such attacks, moreover, of attributing such attacks in terms of state responsibility, add to the problems of regulation. The strict rules on attribution of acts of private individuals to states, as embodied in the Articles on the Responsibility of States for Internationally Wrongful Acts of 2001,47 as well as in the jurisprudence of the International Court of Justice,48 do not assist in inducing states to stop the acts of private individuals that interfere in the security of other states. However, more recognition should be given to the underdeveloped general principle of due diligence found in ­international law, initially raised by the International Court of Justice in

45 UNGA Res 68/243 (27 December 2013) UN Doc A/RES/68/243; UN Doc A/68/98 (2013) paras 16–25. See further UN Doc A/66/359 circulated at the request of the Permanent Representatives of China, the Russian Federation, Tajikistan and Uzbekistan, containing a draft international code of conduct for information security, which was subsequently ­co-sponsored by Kazakhstan and Kyrgyzstan. 46  R Buchan, ‘Cyber Attacks: Unlawful Uses of Force or Prohibited Interventions?’(2012) 17 Journal of Conflict and Security Law 212. 47  Article 8 of which states that ‘the conduct of a person or group of persons shall be considered as an act of State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out that conduct’. 48  Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, 62–64; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43, para 406.

14  Nigel D White the Corfu Channel case in 1949 when it pointed to ‘every State’s ­obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’.49 At least this establishes that states have some ­positive obligations to prevent cyber-attacks being launched from their territories against other states, even though the territorial state might not be behind the attack. Furthermore, within the UN there are a number of ‘security communities’: the ‘hard’ security community of the Security Council, with its ­mixture of executive and legislative competences; the ‘softer’ human rights focused competence of the General Assembly; and the specialist organs and regimes on matters such as disarmament, telecommunications, space, air and human rights. Often then, as regards new technologies, there is a lack of a clear UN ‘security community’ within which inter-subjective agreement can be forged. More broadly, the role of science and technology in the context of international security and disarmament was added to the General ­ ­Assembly’s disarmament agenda in 1988. In introducing a draft resolution in the First Committee, the Indian delegate, in a remarkably p ­ rescient speech, recounted that increasing resources were being devoted to developing new weapons systems, such as the graduated use of nuclear ­explosive power, miniaturisation and large-scale computing capabilities, and fuel and laser technology, all of which were transforming the security environment. He stated that because of these technological developments, work should be initiated to develop a shared perception of the problems involved and to make concerted efforts to resolve them.50 Thus, the UN had the opportunity at the outset of the upcoming ­Revolution in Military Affairs (RMA),51 unleashed towards the end of the Cold War, to put in place some soft law. It must not be forgotten that the UN had responded to earlier technological revolutions by creating ­enduring legal regimes for airspace (following the huge growth of ­civilian aviation at the end of the Second World War)52 and outer space in the 1950s and 1960s (in response to the launch of the first Sputnik satellite by the USSR and the imminent large scale utilisation of outer space).53

49 

Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22. Office for Disarmament Affairs, ‘The Role of Science and Technology in the Context of International Security and Disarmament’ www.un.org/disarmament/topics/ scienceandtechnology/. 51  See generally CS Gray, Strategy for Chaos: Revolution in Military Affairs and the Evidence of History (Abingdon, Routledge, 2004). 52 See Chicago Convention on International Civil Aviation 1944, laying down the ­principles of air law and constituting an effective regulatory organisation—the International Civil Aviation Organisation (ICAO). 53  See UNGA Res 1962, ‘Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space’ (13 December 1963) UN Doc A/RES/1962 (XVIII); Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967). 50  UN

Security Agendas and International Law 15 Unfortunately, the UN General Assembly did not seize the opportunity. The 1988 Assembly resolution requested that the Secretary ­General follow future scientific and technological developments, especially those which had potential military applications, to evaluate their impact on international security and to submit a report on this to the Assembly in 1990.54 The Report of the Secretary General of 1990 was a ­product of meetings, reports and a conference involving scientific and other experts. It consisted of a general overview of technological advances and their implications for international security. Mention was made of ‘mini-nukes’, laser and particle beams, space technology, materials technology, information technology and biotechnology, but all of these were seen as ‘evolutionary and largely incremental’ rather than revolutionary.55 In other words, these technological developments were viewed as developments of existing technologies and, therefore, the implication was that there was adequate existing regulation. Reference was made in the Report to existing arms control treaties, but little analysis of their inadequacies or gaps between them was made, which is suggestive of a lack of legal expertise in the ­compilation of the Report. Bearing in mind that the Report came at the end of the Cold War, the opportunity to start shaping new law was lost. Some statements in the Report show that new technologies or new developments in existing technologies would prove to be problematic, especially in the area of information technology, which was seen as ‘extraordinarily pervasive technology’ that could be harnessed by the military sector. ‘Advanced computers’, ‘artificial intelligence’ and ‘robotics’ were all envisaged in the Report, but their potential negative impacts were not considered, although the positive ones in terms of disarmament verification were.56 The ­Assembly simply took note of the Report and vowed to give the matter on-going attention.57 The matter remains on the UN agenda, but normative development has not occurred. In 2007, the Assembly adopted a resolution that expressed concern about the development of unilateral export control regimes emplaced to prevent the export of dual use goods and technologies, which tend to impede the economic and social development of developing ­countries, urging the development of multilateral ‘non-discriminatory guidelines for international transfers of dual-use goods and technologies and high technologies with military applications’. There was no c­ onsensus on this resolution.58

54  UNGA Res 43/77A (7 December 1988) UN Doc A/RES/43/77A, 129 in favour, 7 against with 14 abstentions. 55  UN Doc A/45/568 (1990), para 83. 56  ibid para 65. 57  UNGA Res 45/61 (4 December 1990) UN Doc A/RES/45/61, adopted without a vote. 58  UNGA Res 61/55 (6 December 2006) UN Doc A/RES/61/55, 108–54 with 16 abstentions.

16  Nigel D White There is no doubt that outside the highly charged atmosphere of the UN’s political organs, the UN does significant work on identifying and analysing new technologies. For example, the UN Institute for Disarmament Research (UNIDIR) has looked at existing legal frameworks for cyber war. A report by Nils Meltzer on ‘Cyberwarfare and International Law’ in 2011 is a good example, although the legal focus is again restricted to the jus ad bellum and the jus in bello. Clearly, these are important areas of law which, as Meltzer concludes, mean that ‘the phenomenon of cyberwarfare does not exist in a legal vacuum, but is subject to well established rules and principles’. He goes on to say: That being said, transposing these pre-existing rules and principles to the new domain of cyberspace encounters certain difficulties and raises a number of important questions. Some of these questions can be resolved through classic treaty interpretation in conjunction with a good measure of common sense, whereas others require a unanimous policy decision by the international ­legislator, the international community of states.59

Meltzer perhaps understates the problem here—while the rules regulating the use of force and conduct of warfare may be applicable to cyber operations, they fail to capture their essence and, therefore, a great deal of cyber threats are not caught by those frameworks since they neither constitute the use of armed force nor are used in wartime. Thus, while the cyber operations that occurred during the Russian intervention in ­Georgia in 2008 were probably covered by the jus in bello and jus ad bellum, those ­conducted against Estonia in 2007 were not. The cyber operations of the type used against Estonia are more likely to be the norm than those ­conducted as an aspect of a military operation. Although the jus ad bellum and jus in bello are important areas of law that act as possible constraints on what can be called cyber-warfare, the regulation of cyberspace at levels falling short of war, use of force, or armed conflict remains to be achieved. At this level, one might expect the legal framework to be centred on human rights law as the use of cyberspace not only raises security concerns, but also concerns about freedoms of thought, opinion and expression, and the rights to association and privacy. The way human rights law is structured, however, leads to problems of extraterritorial application of protection when a state interferes with the rights of citizens in another state. The UN Human Rights Council adopted a resolution on ‘the promotion, protection and enjoyment of human rights on the internet’ in 2012, which affirmed that the ‘same rights that ­people have offline must also be protected online, in particular freedom of e­ xpression, which is applicable regardless of frontiers and through any

59 

N Meltzer on ‘Cyberwarfare and International Law’ (UNIDIR, 2011) 36.

Security Agendas and International Law 17 media of one’s choice’ in accordance with common Article 19 of the Universal Declaration of Human Rights 1948 and International Covenant on Civil and Political Rights 1966.60 The UN General Assembly has also concerned itself with the use of the internet, but mainly from the perspective of inequality between developed and developing states in terms of access to and usage of the ­internet—what it terms a ‘digital divide’.61 Other UN agencies (for example the International Telecommunication Union (ITU), UN Educational, Scientific and Cultural Organisation (UNESCO)) have the internet on their agenda, but from a more specialised or technical angle.62 Little of this helps us to tackle the fact that freedom of expression, although guaranteed by human rights norms, can, by the very terms of human rights treaties, be subject to restrictions that are provided by law and necessary for the protection of ‘national security’. In its 1988 General Comment on Article 17 of the International Covenant on Civil and Political Rights (right to privacy), the Human Rights Committee stated that to be lawful interference with the right, the relevant national legislation must ‘specify in detail the precise circumstances in which such interferences may be permitted’. Furthermore, a ‘decision to make use of such authorised interference must be made only by the authority designated under the law, and on a case-by-case basis’.63 This indicates that the sort of blanket covert surveillance of email and SMS messages undertaken in recent times by the US and UK is not in conformity with Article 17. Such jurisprudence has not stopped the massive trawling of internet traffic by the US (the National Security Agency’s Prism Operation) or UK (Government Communications Headquarters’ (GCHQ) Tempora Operation), nor, even more worryingly, does it appear robust enough to state clearly that such interference is unlawful. Both states have defended their actions as being lawful on the basis that they are necessary and proportionate counter-terrorism measures. This can be seen as an argument for ‘security’ prevailing over ‘human rights’ or, more accurately, that human rights are qualified and not absolute and allow for ‘security’ to be taken

60  A/HRC/RES/20/8, 5 July 2012, adopted without a vote. See also A/HRC/RES/12/16, 2 Oct 2009, adopted without a vote. 61  UNGA Res 66/184 (22 December 2011) UN Doc A/ UN Doc A/66/184, adopted without a vote. But see broader Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion or expression on the Internet UN Doc A/66/290 (2011); also UNGA Res 68/167 (18 December 2013) UN Doc A/RES/68/167, on the right to privacy in a digital age. 62  See broader Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion or expression on the Internet, ibid. 63  Human Rights Committee GC 16, 8 April 1988, para 8. Interference, to be justified, also has to be ‘proportionate’ and ‘necessary’, Antonius Cornelis Van Hulst v Netherlands (HRC, 2004) para 7.8 and 7.10.

18  Nigel D White into consideration, but such arguments have to be tested and should not be accepted at face value. V.  DRONES, INTERNATIONAL LAW AND THE UN

With the odd exception, such as the regulation of outer space, international law tends to develop as a reaction to change. In this way it might be anticipated that new non-kinetic technologies that can be used to disable computer networks, or to carry mass covert surveillance of e-mail traffic, may take decades to bring within a clear legal framework, depending on how quickly states come to realise that it is in their mutual self-interest to effectively regulate cyber-space. It may, in any case, prove to be an ­impossible task as it raises the question of whether states can actually ­regulate something that has escaped the confines of sovereignty—it may simply be too late to put the genie back into the bottle. In this scenario, states will fall back on general principles of international law, such as the norm prohibiting intervention in a state’s political or economic affairs, which will not prevent cyber operations but will enable selective condemnation in the General Assembly and, occasionally, executive responses to particular threats by the Security Council. However, when it comes to new technologies that seem to provide straightforward improvement in military efficacy, such as Unmanned Aerial Vehicles (UAVs), commonly known as drones, it should be expected that existing international law will be adequate. Indeed, this is quite commonly the argument made in the literature, given that drones are seen as mere ‘platforms’ for the launch of weapons such as missiles and not new weapons per se.64 Furthermore, drones are portrayed by their users and supporters as upholding the value of security rather than undermining it.65 Nonetheless, the increasing use of drones does raise security concerns for a number of reasons. When they are used for surveillance they are potential threats to personal security and privacy. When used for ­targeting purposes they not only raise security concerns for civilians potentially caught in the blast (the problem of collateral losses), but they also seem to either extend the battlefield, thereby bringing the instability inherent in war, or constitute the extraterritorial application of force for the p ­ urposes of some extreme form of law enforcement. Under this model of law enforcement,

64  D Turns, ‘Droning On: Some International Humanitarian Law Aspects of the Use of Unmanned Aerial Vehicles in Contemporary Armed Conflicts’ in C Harvey, J Summers and ND White (eds), Contemporary Challenges to the Laws of War (Cambridge, Cambridge ­University Press, 2014) 199. 65  For critical evaluation see C Gray, ‘Targeted Killings: Recent US Attempts Obama to Create a Legal Framework’ (2013) Current Legal Problems 1.

Security Agendas and International Law 19 capture, arrest and trial are replaced by summary execution. All of these conceptions of drone use challenge the notion that they represent a new era of clean, clinical and legitimate use of force. Drones are being increasingly used for surveillance, normally as part of domestic law enforcement operations. As with the exponential growth of surveillance cameras generally, the usage of drones is accepted as a benign and acceptable form of security. As is oft-stated by politicians and lawabiding citizens, ‘if you’re not doing anything wrong, there is no reason to object’ to such surveillance.66 Indeed, it is possible to see such measures as upholding basic rights. Both the International Covenant on Civil and Political Rights 1966 and the European Convention on Human Rights 1950 guarantee the ‘right to liberty and security of person’.67 Surveillance in order to stop crime, especially violent crime, can be argued to be an aspect of a government’s positive duties to prevent human rights violation and provide security. Indeed, there is plenty of jurisprudence that allows the state a wide margin of appreciation for secret surveillance, as a measure ‘necessary in a democratic society in the interests of national security’,68 provided that there are measures in place to prevent abuse.69 Nonetheless, this conception of security can lead to a very intrusive state where the p ­ rioritisation of security in all aspects of life erodes other rights and freedoms expected in a democratic society, for example, the right to privacy.70 The European Court of Human Rights has provided a general definition of privacy, which should raise concerns about the growing use of state s­ urveillance, including by drones. According to the Court, privacy includes a ‘zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”’. In addition, the Court opined that a ‘person’s reasonable expectations as to the ­privacy may be a significant, though not necessarily conclusive factor’ to be ­considered when determining whether a person’s private life is affected by measures taken outside a person’s home or private premises.71

66  William Hague, UK Foreign Secretary, stated in 2013 that ‘If you are a law-abiding citizen of this country going about your business and your personal life you have nothing to fear—nothing to fear about the British state or intelligence agencies listening to the contents of your phone calls or anything like that’, ‘Prism: Claims of GCHQ Circumventing Law are “Fanciful Nonsense”, says Hague’, The Guardian, 9 June 2013. 67  Article 5 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR); Article 9(1) International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 68  Klaas and others v Germany (ECtHR 6 September 1978) para 451. 69 L Doswald-Beck, Human Rights in Times of Conflict and Terrorism (Oxford, Oxford ­University Press, 2011) 451. 70  Article 8(1) ECHR; Article 17(1) ICCPR. 71  Gillan and Quinton v United Kingdom Judgment, 12 January 2010, para 61.

20  Nigel D White Despite this tentative protection of public spaces from state intrusion, it must be borne in mind that a margin of appreciation is found within the definitions of the rights themselves. For instance, in protecting the right to a ‘private life’, the European Convention goes on to declare that ‘no interference with the exercise of this right’ by the government is p ­ ermitted except in accordance with the law and is necessary in a democratic society in the ­interests of national security, public safety or economic well-being of the c­ ountry, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others.72

Perceptions and assertions of security by governments are difficult for the courts to resist, particularly in times of terrorism that are characterised by random attacks against civilians, even when government actions to protect the lives and security of its citizens may appear to tread on the very freedoms it is fighting to protect. Due diligence obligations upon governments are obligations of conduct, rather than result, and so a ­ ­failure by government to prevent specific acts of terrorism is not necessarily an indication that the state has failed to fulfil its duties under human rights law. The random nature of many terrorist actions means that it is very difficult to prevent each and every one. When considering how these obligations have been interpreted by the Human Rights Committee in the context of the rights to life and security under the International Covenant on Civil and Political Rights,73 it is clear that states must take reasonable and appropriate measures to protect individuals within their jurisdiction who are subject to known threats to their lives.74 The European Court of Human Rights has similar jurisprudence, stating in one judgment that a government that ‘knew or ought to have known … of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party’, must take ‘measures within the scope of their powers, which, judged reasonably, might’ be ‘expected to avoid that risk’.75 As has been stated in reviewing this jurisprudence: Applying this jurisprudence by analogy to terrorist attacks creates some ­challenges: the bombing of civilians on aircraft or commuter trains and the hijacking of aircraft suggests a random choice of victims, rather than the ­selection of an ‘identified individual or individuals’ as victims.76

72 

Article 8(2) ECHR. Articles 6 and 9 ICCPR. 74  Delgado Paez v Columbia, Human Rights Committee Communication No 195/1985, 12 July 1990, para 5.5. 75  Osman v United Kingdom (1998) 29 EHRR 245. 76  ES Bates, Terrorism and International Law: Accountability, Remedies and Reform (Oxford, Oxford University Press, 2011) 83–84. 73 

Security Agendas and International Law 21 When drones are used outside of a state’s jurisdiction, whether for ­surveillance or for targeting purposes, and when lethal force is used against individuals, the human rights issues become more complex. While human rights obligations apply to individuals within a state’s territory, there is considerable debate about when they apply to individuals outside its territory but, arguably, within its jurisdiction. When considering the use of armed force from a drone against a terrorist suspect, the question is whether the individual is within the jurisdiction of the state using force. Although there is some Inter-American case-law that supports the application of the right to life in these circumstances,77 there is contrary European jurisprudence.78 Rather than considering whether the state using force has enough control over the targeted individual for the purposes of evaluating whether there is an assertion of jurisdiction in these circumstances, it would be better for the Courts to focus on the fact that the operator of the drone, often a distance away from the target, is clearly under the control of the state using force.79 If jurisdiction is established, such uses of targeted force from drones, when taken outside of armed conflict, are violations of the right to life as there is usually no imminent threat to the state to justify its use of force as a last resort.80 Indeed, the use of lethal force from drones seems to be an extreme and, paradoxical as it may sound, unlawful version of law enforcement where it is easier to kill suspects than to capture them ­(particularly as capturing suspects would put them clearly within the ­capturing state’s jurisdiction).81 Furthermore, the use of drones for targeting suspected terrorists appears to be an attempt to externalise a state’s security measures to ­counter ­terrorism by taking out targets in another state’s territory before they have chance to hit the drone state’s territory or nationals. The US has tried to justify this by arguing what is the ultimate justification for using lethal force—that there is a global armed conflict against terrorists or, at the very least, a transnational armed conflict against Al Qaeda and its associates. This argument is an attempt to justify a lower standard for when lethal force can be used as, in simple terms, a use of lethal force is

77  Armando Alejandre Jr, Carlos Costa, Mario de la Pena and Pablo Morales v Cuba (Brothers to the Rescue), Case 11.589, Report No 86/99, 28 September 1999, para 25. 78  Bankovic and others v 17 NATO States, Admissibility Decision (Grand Chamber), 12 December 2001, paras 52–53. 79  F Hampson, ‘The Scope of the Extra-Territorial Applicability of International Human Rights Law’ in G Gilbert, F Hampson and C Sandoval (eds), The Delivery of Human Rights: Essays in Honour of Sir Nigel Rodley (Abingdon, Routledge, 2011) 181–82. 80  P Alston, ‘Study on Targeted Killings’, Report to the Human Rights Council, UN Doc A/HRC/14.24/Add.6 (2010) paras 85–86. 81  Ocalan v Turkey App No 46221/99 (ECtHR, 12 March 2003) para 125.

22  Nigel D White allowed in an armed conflict if the target is either a military objective, a combatant, or a civilian who is directly participating in hostilities, and the anticipated collateral damage (‘incidental loss of civilian life’) is not ­excessive in relation to the expected military advantage.82 The US has interpreted these rules liberally: to carry out ‘signature’ strikes on the basis that the targeted individual is performing suspicious activities; to target funerals where there is a concentration of Taliban leaders; to target drug lords (who are criminals not combatants); and sometimes to order strikes outside of a conflict-zone, for example, in Yemen in 2002 and again in 2011.83 It seems that after the devastating attacks on the US of 11 September 2001, governments (and not just the US) have re-assessed their security priorities, have reasserted national security (often on the basis that this is the best way to protect human security) and have acted in violation of basic norms governing when coercion can be used by the state against individuals to protect. This has either been as a result of the extension of the battlefield or the extension of law enforcement. While the majority of states may support this, or, more accurately, remain supine in the face of these erosions, the securitisation of post-9/11 life has meant that (the right to) security has been elevated to a ­pre-­eminent position in political rhetoric and action in contradistinction to its position as one of a number of human rights and protections ­provided by international law.84 Thus, while there are international norms applicable to drone use, a great deal of it is underdeveloped, indeterminate or ineffectual. The UN itself has not tackled drone usage in any meaningful way. Although this is ­probably to be expected in the executive body, it is disappointing to see that the plenary body has also failed to fulfil its functions as a ­security community with the ability to shape normative frameworks, confining itself instead to exhortation in general resolutions to the effect that ­counter-terrorism efforts by states should be undertaken in conformity with international human rights law, refugee law and international humanitarian law.85

82 

Article 55, Additional Protocol I 1977; Turns (n 64) 207. Casey-Maslen, ‘The Use of Armed Drones in S Casey-Maslen (ed), Weapons under International Human Rights Law (Cambridge, Cambridge University Press, 2014) 400–03. 84  See generally L Lazarus, ‘The Right to Security—Securing Rights or Securitising Rights?’ in R Dickinson, E Katselli, C Murray and OW Pederson (eds), Examining Critical Perspectives on Human Rights (Cambridge, Cambridge University Press, 2012) 87. 85  Eg UNGA Res 68/178 (18 December 2013) UN Doc A/RES/68/178. 83 S

Security Agendas and International Law 23 VI. CONCLUSION

The UN system has confronted the issue of new technologies since the late 1980s, but has made limited progress on either consolidating applicable law or developing new laws and mechanisms. The fact that new technologies bring in aspects of many areas of policy and law—arms control, human rights, conflict, peace and security—means that specific frameworks need to be shaped by the UN Security Council, General Assembly, Secretary-General and other UN bodies. The uncertainty as to how to accommodate different security agendas within the framework of international law produces its own insecurity, so that we are caught in what appears to be a spiralling security dilemma in which one state’s uncensored increase in security measures leads another state to increase theirs to a point where they feel more secure, which, in turn, leads the first state to further increase their security preparation. Clarification of the applicable law and law-making can, of course, take place outside the UN, but as such it will be uneven, piecemeal and will lack the universality and legitimacy that the UN brings. The ever-growing use of cyber measures and drones are just two examples of how technology is outstripping law. We might not be able to determine the truth as to the legal meaning of ‘security’ in a logical Holmesian manner, but we should be able to achieve agreement on what it means in the case of new technologies.

24

2 Human Security and International Law: The Potential Scope for Legal Development within the Analytical Framework of Security HITOSHI NASU*

I. INTRODUCTION

H

UMAN SECURITY IS a human or people-centred and multi-sectoral approach to security. It means the protection of people from critical and pervasive threats and situations, and the empowerment of people to develop their potential, through ­concerted efforts to develop norms, processes and institutions that systematically address insecurities.1 Even though the idea of human security, at its core, arguably precedes the formation of the Westphalian system,2 it was the UN Development Programme (UNDP) that captured it in policy ­discourse in its 1994 Human Development Report.3 Since then, human

*  This research was partly supported under the Australian Research Council’s Discovery Project funding scheme (Project Number: DP130103683). I thank Shiang Ye for her research assistance at the final stage of the preparation of this manuscript. 1  Commission on Human Security, ‘Human Security Now’ (2003) www.­­humansecuritychs.org/finalreport/index.html. See generally, D Chandler and N Hynek (eds), Critical Perspectives on Human Security: Rethinking Emancipation and Power in International Relations (London/New York, Routledge, 2011); M Goucha and J Crowley (eds), Rethinking Human Security (Chichester, Wiley-Blackwell & UNESCO, 2008); S Tadjbakhsh and AM Chenoy, Human Security: Concepts and Implications (London/New York, Routledge, 2007); Mary Kaldor, Human Security: Reflections on Globalization and Intervention (Cambridge, Polity, 2007); G Frerks and BK Goldewijk (eds), Human Security and International Security (Wageningen, Wageningen Academic Publishers, 2007); SN MacFarlane and YF Khong, Human Security and the UN: A Critical History (Bloomington, Indiana University Press, 2006); M Tehranian (ed), Worlds Apart: Human Security and Global Governance (London, IB Tauris, 1999). 2  E Rothschild, ‘What is Security?’ (1995) 124(3) Daedalus 53, 60–65. 3 UN Development Programme (UNDP), Human Development Report 1994 (United Nations, 1994) 22.

26  Hitoshi Nasu security has been incorporated into key UN policy documents, such as the 2000 UN Millennium Declaration,4 the 2004 Report of the UN SecretaryGeneral’s High-Level Panel,5 the 2005 In Larger Freedom Report,6 and the UN ­Secretary-General’s Report on Human Security in 2010 and 2012.7 World leaders affirmed, in the 2005 World Summit Outcome, the notion of human security as encompassing ‘the right of people to live in freedom and dignity, free from poverty and despair’8 and since then, have continued to debate the notion of human security in the UN General Assembly.9 Consequently, the policy debate concerning security has moved beyond traditional state-centric security paradigms.10 There is no doubt that the notion of human security has paved the way for a shift in focus away from the domain of national security and towards a broader spectrum, which assists in defining new security concerns or redefining the terms of the debate surrounding traditional security threats.11 Within the field of international law the idea has facilitated, for example, the adoption of new treaties concerning the protection of civilians during, and in the aftermath of, armed violence and has also informed debates as to how certain rules of international law should be interpreted or applied. Yet, the actual impacts of human security for the development of international law have so far been limited to a few specific areas, such as arms control, forced displacement and humanitarian intervention. This chapter considers legal or structural obstacles to harnessing the notion of human security more widely across all areas of international law. It does not intend to provide a comprehensive analysis of how the idea of human security has influenced the development of international law, as earlier studies have already examined this question in many

4 

UNGA Res 55/2 (8 September 2000) UN Doc A/RES/55/2. High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (2004) UN Doc A/59/565, 23 (identifying ­economic and social threats, transnational organised crime, as well as inter-state conflict, internal c­ onflict, terrorism, and weapons of mass destruction as global security threats). 6  KA Annan, In Larger Freedom: Towards Development, Security and Human Rights for All (New York, United Nations, 2005) para 78 (listing poverty, deadly infectious disease and environmental degradation as global security threats on the grounds that these can have equally catastrophic consequences). 7  Report of the Secretary-General, ‘Human Security’ (2010) UN Doc A/64/701; Report of the Secretary-General, ‘Follow-up to General Assembly Resolution 64/291 on Human ­Security’ (2012) UN Doc A/66/763. 8  2005 World Summit Outcome, UNGA Res 60/1 (24 October 2005) UN Doc A/RES/60/1, para 143. 9 UN Doc A/66/PV.112 (4 June 2012); UN Doc A/64/PV.88 (20 May 2010); UNGA Thematic Debate on Human Security (22 May 2008) www.un.org/ga/president/62/­ ­ ThematicDebates/humansecurity.shtml. 10  For different security paradigms in political science, see, eg, P Battersby and JM ­Siracusa, Globalization and Human Security (Lanham, Rowman & Littlefield Publishers, 2009) 39–68. 11  K O’Brien, ‘Are We Missing the Point? Global Environmental Change as an Issue of Human Security’ (2006) 16 Global Environmental Change 2. 5 Secretary-General’s

Human Security and International Law 27 ­different respects.12 Rather, this chapter examines the potential of human security’s normative effects in the areas where it has not influenced the development of international law. To that end, after locating the notion of human s­ ecurity within the analytical framework of security in general (Section II), this chapter examines the extent to which the notion of human security has, or has not, informed the development of international law in each of three different dimensions comprising the analytical framework of ­security, namely: (1) the focus (referent object) of security; (2) the scope of security issues; and (3) the means by which security threats are addressed. II.  LOCATING HUMAN SECURITY WITHIN THE ANALYTICAL FRAMEWORK OF SECURITY

When world leaders agreed upon adopting the notion of human security in the 2005 World Summit Outcome, the definitional issue was expressly left for subsequent discussion.13 Subsequently, UN Member States ­discussed human security in the General Assembly on 22 May 2008, in which different perspectives were presented and the potential benefits of broadening human security were weighed against the risks it might pose. While some states highlighted the risk of draining human security of any real operational value and applicability, other states underlined the risk of limiting the concept too narrowly, referring to the benefit of improving the living conditions of those most in need.14 Following the thematic debate, the UN Secretary-General Ban Ki Moon was tasked with seeking the views of UN Member States on the notion and definition of human security.15 In his 2012 report, however, the ­Secretary-General chose to set out the core values, scope, approach and

12  See, eg, H Nasu, ‘The Place of Human Security in Collective Security’ (2013) 18 Journal of Conflict & Security Law 95; T Farer, ‘Human Security: Defining the Elephant and Imagining Its Tasks’ (2010) 1 Asian Journal of International Law 1; A Edwards and C Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs (Cambridge, Cambridge University Press, 2010); B von Tigerstrom, Human Security and International Law: Prospects and Problems (Oxford/Portland OR, Hart Publishing, 2007); B Saul, ‘The Dangers of the United Nations’ “New Security Agenda”: “Human Security” in the Asia-Pacific Region’ (2006) 1 Asian Journal of Comparative Law 10; MC Kettemann, ‘The Conceptual Debate on Human Security and its Relevance for the Development of International Law’ (2006) 1(3) Human Security Perspectives 39; G Oberleitner, ‘Human Security: A Challenge to International Law?’ (2005) 11 Global Governance 185; N Thomas and WT Tow, ‘The Utility of Human Security: Sovereignty and Humanitarian Intervention’ (2002) 33(2) Security Dialogue 177; R McRae and D Hubert (eds), Human Security and the New Diplomacy: Protecting People, Promoting Peace (Quebec, McGill-Queen’s University Press, 2001). 13  UNGA Res 60/1 (24 October 2005) UN Doc A/RES/60/1, para 143. 14 See, UNGA Thematic Debate on Human Security (22 May 2008) www.un.org/ga/­ president/62/ThematicDebates/humansecurity.shtml. 15  UNGA Res 64/291 (27 July 2010) UN Doc A/RES/64/291, para 3.

28  Hitoshi Nasu common understanding of human security, rather than define it in s­ pecific and clear terms.16 While some states have lamented the lack of a clear definition,17 this approach appears overall to have been well received.18 Switzerland, in particular, supported the approach, arguing that a ­precise scientific or legal definition ‘would ultimately limit its intrinsic usefulness’.19 The definitional debate of human security comes down to how we understand ‘security’ as much as what we mean by ‘human’. Security is an elastic and dynamic concept, susceptible to change resulting from both objective conditions and the subjective perception of threats.20 It is often described as ‘an essentially contested concept’,21 due to the fact that it can be understood differently, depending on its objects, the perception of threats, the protected values and the means through which these values can be protected.22 Likewise, human security is not a coherent or objective concept that can be defined with a definite and precise meaning, but rather forms part of an evolving conception of security that reflects the impacts of different values and norms on international relations.23 There can be no single meaning or definition of human security. Indeed, different states, policy makers and scholars have envisaged different ­ ranges of human security issues.24 Nevertheless, the analytical framework of ­security in general can provide a conceptual way of understanding the debates c­ oncerning the current state and role of human security in the development of international law.25 In the discourse of security studies, human security is, first and foremost, understood as a shift in the ‘referent objects’ of security from 16 

Report of the Secretary-General (2012) (n 7). Doc A/66/PV.112 (4 June 2012) 6–7 (Cuba), 8 (Venezuela), 11–12 (Russia), 17 (­Malaysia), 21 (China). 18 ibid, 3 (European Union), 4 (Jordan on behalf of the Human Security Network), 7 ­ (Mexico), 9 (Japan), 10 (Australia), 11 (Switzerland), 14 (Costa Rica), 14–15 (India), 16 (Thailand). 19  ibid, 11. 20  A Wolfers, ‘“National Security” as an Ambiguous Symbol’ (1952) 67(4) Political Science Quarterly 481, 484–85. 21  B Buzan, People, States and Fear: The National Security Problems in International Relations (Brighton, Wheatsheaf, 1983) 6. 22  See generally, DA Baldwin, ‘The Concept of Security’ (1997) 23 Review of International Studies 5. 23 E Newman, ‘Human Security and Constructivism’ (2001) 2 International Studies ­Perspectives 239. 24  See, eg, A Acharya, ‘Human Security: East versus West’ (2001) 56 International Journal 442. 25  For the author’s earlier work on the analytical framework of security in the context of international law, see H Nasu, ‘Law and Policy for Antarctic Security: An Analytical Framework’ in AD Hemmings, DR Rothwell and KN Scott (eds), Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives (London/New York, Routledge, 2012); H Nasu, ‘The Expanded Conception of Security and International Law: Challenges to the UN ­Collective Security System’ (2011) 3(3) Amsterdam Law Forum 15. See also, Tadjbakhsh and Chenoy (n 1) 13–19. 17 UN

Human Security and International Law 29 sovereign states, or the international community, to human beings.26 Ambiguity remains as to whether it is particular individual persons or human beings as a collective mass that constitute the referent object in the discourse of human security. Peter Hough, for example, understands human security as the ‘deepening’ of security, placing individual ­persons at the centre of security analysis and policy-making.27 Barry Buzan, on the other hand, warns against the ‘reductionism’ caused by human security in international security thinking, emphasising the collectivity of security enterprises as an essential element of referent objects.28 This issue informs the debate, as will be discussed below, regarding the extent to which human security overlaps with, or distinguishes itself from, human rights. Secondly, not only does human security shift the focus of referent objects to human beings, it also entails a broadened, multi-sectoral understanding of security and addresses a wider range of causes of insecurity as part of security policy agendas.29 Furthermore, various human ­security threats are mutually reinforcing and interconnected because of their causal effect—for example, violent conflicts can lead to a reduction in food production and poverty, or vice versa—often spreading across national borders into a wider region.30 Yet, such a potentially unlimited expansion of human security has been criticised as the concept becomes too ambiguous to be of any use for policy-making,31 in that ‘virtually any kind of unexpected or irregular discomfort could conceivably constitute a threat to one’s human security’.32 26 According to the ‘securitisation’ theory developed by the Copenhagen School, the ­ iscourse of security is understood as a ‘speech act’ in the processes of constructing a d shared understanding of what is considered a threat. In such processes, the securitisation theory identifies ‘referent objects’ (which are seen to be existentially threatened) as distinguished from ‘securitising actors’ (who securitise issues) and ‘functional actors’ (who affect the dynamics of decision-making). See, B Buzan, O Wæver and J de Wilde, Security: A New Framework for Analysis (Boulder, Lynne Rienner, 1998) 23–36. 27 P Hough, Understanding Global Security (London/New York, Routledge, 2004) 8–10. See also, G King and CJL Murray, ‘Rethinking Human Security’ (2001) 116 Political Science Quarterly 585, 592–97; DT Graham and N Poku, Migration, Globalisation and Human Security (London/New York, Routledge, 2000) 17. 28  B Buzan, ‘A Reductionist, Idealistic Notion that Adds Little Analytical Value’ (2004) 35 Security Dialogue 369. 29  Commission on Human Security (n 1); Tadjbakhsh and Chenoy (n 1) 29–30; MacFarlane and Khong (n 1) Ch 4. 30  UNDP (n 3) 22–23; UN Human Security Unit, Human Security in Theory and Practice: Application of the Human Security Concept and the United Nations Trust Fund for Human Security (New York, United Nations, 2009) 7–8; Tadjbakhsh and Chenoy (n 1) 16–17. 31  A Mack, ‘A Signifier of Shared Values’ (2004) 35(3) Security Dialogue 366, 367; K Krause, ‘The Key to a Powerful Agenda, if Properly Delimited’ (2004) 35(3) Security Dialogue 367; SN MacFarlane, ‘A Useful Concept that Risks Losing its Political Salience’ (2004) 35(3) ­Security Dialogue 368. 32  R Paris, ‘Human Security: Paradigm Shift or Hot Air?’ (2001) 26(2) International Security 87, 89.

30  Hitoshi Nasu In response to such criticism, a much narrower, minimalist conception of human security has emerged, placing human security squarely within the context of violence and conflict, such as the protection of civilians, women and children in armed conflict.33 It was this narrow conception of human security that provided a theoretical foundation for the ­development of the ‘responsibility to protect’ concept and the associated debate on military intervention to protect civilian populations from mass ­atrocities.34 ­However, this narrow conception of human security has also been subjected to criticism for prioritising values favoured by the Global North over those held in the Global South.35 Thirdly, unlike traditional, state-centred security, which is often concerned with threats of armed attack, human security is to be achieved in a multidimensional and comprehensive manner. The Commission on Human Security emphasises both protection and empowerment in an integrated approach to address a range of insecurities.36 Human ­security incorporates the idea of human development, pioneered by Mahbub ul Haq, which has helped shift the focus of development issues from ­economic growth to the quality and richness of human lives.37 The idea of empowerment also closely relates to emancipation. As Ken Booth observes: ‘Security’ means the absence of threats. Emancipation is the freeing of people (as individuals and groups) from those physical and human constraints which stop them carrying out what they would freely choose to do. War and the threat of war is one of those constraints, together with poverty, poor education, ­political oppression and so on. Security and emancipation are two sides of the same coin. Emancipation, not power or order, produces true security. ­Emancipation, ­theoretically, is security.38

Thus, progressive advocates consider that human security represents a transformation of the traditional notion of security into the protection and empowerment of the individual and the promotion of social

33  See, eg, Tadjbakhsh and Chenoy (n 1) 30–31; MacFarlane and Khong (n 1) Ch 5; Human Security Centre, Human Security Report 2005: War and Peace in the 21st Century (Oxford, Oxford University Press, 2005) viii. 34  International Commission on Intervention and State Responsibility, The Responsibility to Protect (International Development Research Centre, 2001) 15; G Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Washington DC, Brookings Institution, 2008) 34–35. 35  Tadjbakhsh and Chenoy (n 1) 35–36. YF Khong, ‘Human Security: A Shotgun Approach to Alleviating Human Misery?’ (2001) 7 Global Governance 231. Cf M Duffield, Global ­Governance and the New Wars: The Merger of Development and Security (London, Zed Books, 2005) 31–34. 36  Commission on Human Security (n 1) 10–12. 37  ibid, 8. 38  K Booth, ‘Security and Emancipation’ (1991) 17 Review of International Studies 313, 319.

Human Security and International Law 31 ­ rogress through the merging of development and security.39 However, p when translated into practice, human security tends to take the form of ­government foreign aid programmes, as has been the case with Japan’s development aid,40 in particular the UN Trust Fund for Human Security that they created.41 Additionally, much narrower, but more distinct, approaches to promoting human security have been considered. The ‘rights-based’ approach to human security, for example, attempts to explain that human rights underpin the normative and conceptual foundation of human security and serve as the means of ensuring human security.42 Another perspective is the state-based approach, as represented by the ‘responsibility to protect’ concept, which seeks out ways in which sovereign states can address security threats to human beings, rather than threats to their own national security or their international relations.43 However, due to the controversies over its precise focus and scope, there is a risk of human security being misused or misguiding the debate when such familiar ideas and existing legal frameworks are relied upon as the means of addressing human security concerns (as will be discussed in Section V B on the ­pathology of human security). At least one of the reasons why human security has been widely advocated and received into policy agendas worldwide is the very recognition that existing ideas and legal frameworks do not sufficiently address contemporary security threats from the viewpoint of human beings.44 Any discussion about the means to address human security issues must begin by critically assessing the adequacy of existing ideas and legal frameworks. Within the analytical framework of security, human security serves as a catalyst for expanding the horizon of contemporary security debates. The question relevant to this chapter is: to what extent can the idea of human security inform the development of international law, challenging its sovereignty-based structure? The remainder of this chapter examines this

39 T McCormack, ‘Human Security and the Separation of Security and Development’ (2011) 11(2) Conflict, Security & Development 235, 241. 40 For details, see, eg, M Sato, ‘Human Security and Japanese Diplomacy: Debates on the Role of Human Security in Japanese Policy’ in G Shani, M Sato, and MK Pasha (eds), ­Protecting Human Security in a Post 9/11 World: Critical and Global Insights (New York, Palgrave Macmillan, 2007). 41  For details, see, eg, OA Gómez S, ‘What is a Human Security Project? The Experience of the UN Trust Fund for Human Security’ (2012) 24 Global Change, Peace & Security 385. 42 See, eg, FO Hampson, Madness in the Multitude: Human Security and World Disorder (Oxford, Oxford University Press, 2002) 16–23; BG Ramcharan, Human Rights and Human Security (Leiden, Martinus Nijhoff, 2002) 3–10. 43  See, eg, Report of the Secretary-General (2010) (n 7) paras 20–22. 44 Thus, von Tigerstrom describes the basic functions of human security as ‘agenda-­ setting’, ‘question-framing’ and ‘critiquing existing approaches’: von Tigerstrom (n 12) 45–49. See also, O’Brien (n 11) 2.

32  Hitoshi Nasu question in three different dimensions comprising the analytical framework of security, namely: (1) the focus (referent object) of security; (2) the scope of security issues; and (3) the means by which security threats are addressed. III.  SHIFTING THE FOCUS

Even though human security is, first and foremost, designed to shift the focus or referent object of security away from the state to the individual, the idea of a human-centred approach itself is not alien to international law.45 International law, while being built upon the traditional, inter-state paradigm, has developed to accommodate a human-centred approach by incorporating, for example, the principle of equality and non-­ ­ discrimination, the principle of respect for human dignity and the principle of humanity.46 These principles have underpinned the ­development of i­ nternational human rights law, refugee law and international humanitarian law, particularly in the second half of the ­twentieth century. If human security could only provide a shift towards a more human-­ centred approach, it would not offer much value to further ­development of i­ nternational law. What distinguishes human security from the human-centric approach to international law, particularly international human rights law, is its place within the analytical framework of security. The human-­centred approach to international law, as traditionally conceived, does not ­necessarily address the interests of human beings within the paradigm of security. Human security can even be considered a sub-set of the humancentred approach to international law, which has only recently evolved within the overall trend of expanding the concept of security in international policy discourses. Conceived as such, human security is inherently a public interest concerned with the security of individuals as members of the community, rather than each individual’s own personal security.47 The manifestation of the human-centred approach to international law in the paradigm of security, through the form of human security, has challenged the traditional conception of security as the sovereign prerogative of states.

45 

See, von Tigerstrom (n 12) Ch 3. Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403, 596–607 (separate opinion of Judge Trindade). See more generally, AA Cançado Trindade, International Law for Humankind: Towards a New ‘Jus Gentinum’ (Leiden, Martinus Nijhoff, 2010); T Meron, The Humanization of International Law (Leiden, Martinus Nijhoff 2006). 47  See also, Kaldor (n 1) 191; Sato (n 40) 92. 46 

Human Security and International Law 33 It is for this reason that the adoption of the 1997 Ottawa Treaty,48 the 1998 Rome Statute,49 and the 2000 Optional Protocol to the Convention on the Rights of the Child,50 amongst the body of human rights treaties, has been seen as legal development motivated and facilitated by embracing and prioritising human security over national security. Security concerns regarding human beings have essentially pushed international standards of behaviour into the areas that were traditionally neglected by s­overeign states.51 Additionally, a more progressive view has been expressed, ­elevating human security into a norm, which requires proportionality assessment under international humanitarian law to demonstrate that the legitimate military objective cannot be achieved by other means, rather than simply considering that the civilian casualty is not excessive in ­relation to the concrete and direct military advantage ­anticipated.52 According to this progressive view, human security is considered a normative, additional factor to be taken into account in balancing between military necessity and humanitarian concerns which, unlike the human rights-based approach, does not suggest an obligation to avoid or minimise any risk to civilians.53 Thus, human security plays a much broader function than human rights by contributing to the development and r­ e-interpretation of legal rules, but is at the same time narrower than human rights, in that it is concerned with the ‘security’ of human beings, their survival, livelihood and dignity.54 Although the adoption of a new treaty, or re-interpretation of existing legal rules, may have been influenced and motivated by the idea of human security, whether this truly addresses human security concerns held by individuals is a different matter. States’ approach to human security issues may well be selective and deal only with what states consider to be a threat to human beings, rather than what individuals perceive to be a threat to themselves. Furthermore, human security issues may well be addressed

48 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of ­ nti-Personnel Mines and on their Destruction (adopted 18 September 1997, entered into A force 1 March 1999) 2056 UNTS 211. 49  Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90. 50  Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222. 51  See, eg, R McRae, ‘Human Security in a Globalised World’ in McRae and Hubert (n 12) 25; RA Matthew, ‘Human Security and the Mine Ban Movement I: Introduction’ in RA Matthew, B McDonald and KR Rutherford (eds), Landmines and Human Security: ­International Politics and War’s Hidden Legacy (New York, State University of New York Press, 2004) 3–19. 52  Farer (n 12) 8. See also, Kaldor (n 1) 186. 53  For discussion, see, eg, K Watkin, ‘Assessing Proportionality: Moral Complexity and Legal Rules’ (2005) 8 Yearbook of International Humanitarian Law 3, 34–41. 54  See also, von Tigerstrom (n 12) 42.

34  Hitoshi Nasu only in the way that states consider appropriate, rather than the way in which individuals themselves require them to be addressed. Illustrative of this point are the issues of internal displacement and the protracted refugee situation (where the displaced people are often encamped on border areas for a prolonged period of time), which illuminate the inadequacy of the state-oriented, monolithic understanding of ‘refugee protection’ ­without having regard to the dynamics and complexity of specific ­situations and individuals under the existing international refugee law.55 There remains scope for revisiting even human-centred rules of international law so as to better accommodate the particular needs and circumstances of those who are suffering or perceiving threats. IV.  EXPANDING SECURITY AGENDAS

Despite the conceptual debate concerning its scope, as outlined above, there is no denying that human security has provided a theoretical foundation for expanding the range of security issues to be addressed, at least as policy agendas, including economic security, food security, health ­security and environmental security.56 The human security perspective makes a significant contribution to how we consider the wider range of security issues. It enables a consideration of the root causes of such issues, which are usually observed and felt at the local or regional level, from the ­perspective of those who are actually suffering or perceiving the threats, irrespective of their causal relationship with an armed conflict the ­state-centred notion of security is primarily concerned about. Thus, human security is not simply a security multiplier, but demands the incorporation of ‘non-traditional’ security agendas, which pose challenges to the survival and well-being of peoples arising from non-military sources,57 as perceived by those who are suffering from the original causes, rather than as their consequences for armed conflict. However, an attempt to address ‘non-traditional’ security agendas from a human security perspective to international law is not straightforward. The basic premise of international law inevitably poses a s­ tructural ­obstacle to ‘mainstreaming’ human security within the ­existing ­framework of

55  See, eg, A Okudaira and H Nasu, ‘Revisiting the Concept of Protection in International Refugee Law: Implications of the Protracted Refugee Situation on the Thai-Myanmar Border’ in A Francis and R Maguire (eds), Protection of Refugees and Displaced Persons in the Asia Pacific Region (Farnham, Ashgate, 2013); A Edwards, ‘Human Security and the Rights of Refugees: Transcending Territorial and Disciplinary Borders’ (2009) 30 Michigan Journal of International Law 763, 805; TA Aleinikoff, ‘State Centered Refugee Law: From Resettlement to Containment’ (1992) 14 Michigan Journal of International Law 120. 56  UNDP (n 3) 24–30. 57  See generally, eg, M Caballero-Anthony, R Emmers and A Acharya (eds), Non-Traditional Security in Asia: Dilemmas in Securitisation (Farnham, Ashgate, 2006).

Human Security and International Law 35 international law.58 International law is a system of law based on the ­consent of sovereign states and hence, does not allow much scope for accommodating non-state entities and individuals as subjects of international law.59 This structural obstacle of international law inhibits the full potential of human security being harnessed to address ­‘non-traditional’ security issues. An example illustrating this problem is the issue of food security. The idea of food security has evolved over the last four decades from ‘food supply security’, focusing solely upon the availability of food supply as a security concern,60 to a more comprehensive concept of ‘physical and economic access to sufficient, safe and nutritious food’.61 It is the concept of human security that arguably facilitated this shift, as the 1994 UNDP Human Development Report expressly provides that food security requires not just enough food to go around … [but] requires that people have ready access to food—that they have an ‘entitlement’ to food, by growing it for themselves, by buying it, or by taking advantage of a public food distribution system.62

This statement was made ahead of the 1996 World Food Summit where states, for the first time, embraced this wider understanding of food security.63 Nevertheless, the international trade rules,64 including those intended to address food security issues,65 have remained as the legal and structural barriers to the adoption of flexible food security ­policies by individual countries.66 This is also despite the fact that the 2001 Doha Ministerial Declaration acknowledged that a range of non-trade

58  Cf W Benedek, MC Kettemann and M Möstl (eds), Mainstreaming Human Security in Peace Operations and Crisis Management: Policies, Problems, Potential (London/New York, Routledge, 2011). 59  A Clapham, ‘The Role of the Individual in International Law’ (2010) 21 European Journal of International Law 25. Cf C Grossman and DD Bradlow, ‘Are We Being Propelled Towards a People-Centered Transnational Legal Order?’ (1993) 9 American University Journal of ­International Law and Policy 1. 60  Report of the World Food Conference, Rome, 5–16 November 1974 (New York, United Nations, 1975) 2. 61  Rome Declaration on World Food Security (adopted 13 November 1996) para 1, www. fao.org/docrep/003/w3613e/w3613e00.htm. 62  UNDP (n 3) 27. 63  Rome Declaration on World Food Security (n 61). 64  Modern international trade law can arguably be conceived of as aiming to fulfil human security objectives with reference to the improvement of living standards for all people and sustainable development: R Howse and M Mutua, Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization (Montreal, International Centre for ­ Human Rights and Democratic Development, 2000) 4. 65  See especially, Agreement on Agriculture (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 410. 66  For details, see, eg, A Joshi, ‘Food Security in the Great Lakes Region: Reconciling Trade Liberalisation with Human Security Goals’ in RG Rayfuse and N Veisfelt (eds), The ­Challenge of Food Security: International Policy and Regulatory Frameworks (Cheltenham, Edward Elgar, 2012) 44, 53–56; C Gonzalez, ‘Institutionalizing Inequality: The WTO, Agriculture and

36  Hitoshi Nasu concerns, such as food security, should be taken into account.67 This ‘trade-centric’ approach to human security is also evident in the trade protection of intellectual properties, which has been criticised as denying traditional farmers’ accessibility to plant genetic resources for food and agriculture.68 The expansion of the security concept through the optic of human ­security has also influenced the mandate and activities of the UN ­Security Council, which may appear to be the most appropriate forum to incorporate a range of non-traditional security issues, given that it has the primary responsibility for the maintenance of international peace and security within the UN system. Yet it is a state-centric, military-oriented conception of security that underpins the UN collective security s­ ystem, whose constitutive and legitimising aim has traditionally been the absence of armed aggression.69 Mainstreaming human security, to address non-­traditional security issues within its framework, requires transformation of its normative and institutional foundations into those that adopt human security as the driving force, in the search for substantive legitimacy based on universal values.70 As this author has discussed elsewhere, whilst the incorporation of a civilian protection mandate into peacekeeping operations has gone some way towards this direction, the prevailing view remains that non-­ traditional security issues, such as health security, food security and ­climate change, are relevant to the UN Security Council only to the extent that those matters relate to conflicts.71 Thus, at least as it currently stands, the idea of human security has not been fully harnessed into collective security decision-making. It, therefore, remains to be seen whether, and to what extent, the legal and political structure of the UN collective security system is capable of accommodating human security perspectives when dealing with traditional or non-traditional security issues. The answer to this question may well depend on whether, and how, the multi-­sectoral

­ eveloping Countries’ (2002) 27 Columbia Journal of Transnational Law 431, 476–81; MG Desta, D ‘Food Security and International Trade Law: An Appraisal of the World Trade Organization Approach’ (2001) 35 Journal of World Trade 449. 67  WTO Doha Ministerial Declaration, adopted 14 November 2001, Doc WT/MIN(01)/ DEC/1, paras 13–14. 68 ‘Report of the Special Rapporteur on the Right to Food’ (23 July 2009) UN Doc A/64/170, para 10. See generally, R Ramcharan, International Intellectual Property Law and Human ­Security (The Hague, TMC Asser, 2013). 69 See, eg, M-F Cuéllar, ‘Reflections on Sovereignty and Collective Security’ (2004) 40 ­Stanford Journal of International Law 211, 215–20; H Charlesworth, ‘The Inadequacy of ­“Collective Security”’ (2000) 9 Finnish Yearbook of International Law 39, 41–44. 70 H Nasu, ‘Operationalising the “Responsibility to Protect” and Conflict Prevention: Dilemmas of Civilian Protection in Armed Conflict’ (2009) 14 Journal of Conflict & Security Law 209, 232–33. 71  Nasu (n 12).

Human Security and International Law 37 approach required to realise human security can be integrated into ­collective security actions, which forms the subject of the next section. V.  EXTENDING THE MEANS TO ADDRESS SECURITY THREATS

A.  Multidimensional Approach to Security The concept of human security functions as a goal as much as the means to achieve the goal. As the 1994 Human Development Report sets out, it promotes not only the ‘protection’ of human beings but also the ­‘empowerment’ of people to develop their potential, through concerted efforts to develop norms, processes and institutions that systematically address insecurities. The UN Secretary-General Ban Ki-Moon, in his 2010 Human Security Report, also considers that the concept of human security introduces a practical framework for identifying specific insecurities, as well as for considering the institutional and governance arrangements that are needed to ensure the survival, livelihood and dignity of individuals and communities in a multidimensional and comprehensive manner.72 ­Conceived as such, the role of human security as a security multiplier also extends the means by which security threats are to be addressed. Nevertheless, the prevalent position among states remains that human security is to be achieved within the existing framework of international law and, therefore, does not entail new legal obligations for states, ­effectively rejecting any shift away from the traditional idea of security being provided by the sovereign state.73 Within the European Union, it is considered that ‘Respect for all human rights and the rule of law should remain at the core of any application of the human security approach’.74 Although the concept of human security itself may not create any new legal obligations, it does not mean that human security is devoid of any legal and normative values. Indeed, as the Australian delegation to the UN General Assembly observed, human security provides a ‘normative framework’ to ensure that collective actions are not fragmented and that they directly benefit affected populations.75 It is in this normative context that mainstreaming human security can make a contribution in developing or re-conceptualising rules of ­international law. As examined above, human security has motivated and

72 

Report of the Secretary-General (2010) (n 7) para 26. Doc A/66/PV.112 (4 June 2012) 6 (Egypt), 7 (Cuba, Mexico), 8 (Venezuela), 12 ­(Russia), 15 (India), 19–20 (Syria). See also, Report of the Secretary-General (2012) (n 7) para 36(c). 74  UN Doc A/66/PV.112 (4 June 2012) 3. 75  ibid, 10 (Australia). 73 UN

38  Hitoshi Nasu influenced the adoption of new treaties, so far mainly in the area of armed conflict law,76 which could and should expand into other areas, such as international trade law.77 The notion of human security could also allow international and regional courts and tribunals to expand their approach to security. Judge Koroma, for example, in considering the request for the indication of provisional measures in Armed Activities on the Territory of the Congo, held in his Declaration that the Court’s role in maintaining ­international peace and security includes the promotion and protection of human security and the right to life, having regard to the real and s­ erious threats that existed to the population of the region concerned.78 In the Kosovo Advisory Opinion, Judge Trindade relied upon human ­security in observing that states have the ‘duty to protect and to empower their inhabitants’.79 Such a positive obligation upon states has been recognised in the ­context of the right to security through international, regional and domestic human rights jurisprudence.80 A reading of human security into the positive obligation of states to protect their inhabitants from violence and to empower, however, raises concern for the tension between liberty, as an individual right, and security (including human security), as a public or collective interest.81 Should human security be incorporated into the right to security, so as to re-conceptualise or expand the right, the question ­inevitably arises as to how the potential conflict between the right to ­security (for example, of the public from terrorist threats) and other human rights, such as the right to liberty and fair trial (for example, of ­suspected terrorists) should be reconciled.82 Some may argue that the right to security is superior to other human rights,83 whereas others consider that the right to security should be narrowly confined to avoid such conflict.84 Indeed, as will be discussed below, a certain application of a

76 

See above (nn 48–50) and accompanying text. Note the legal and structural obstacles to the adoption of flexible food security policies under the current WTO regime, as introduced above in nn 60–68 and accompanying text. 78  Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Provisional Measures) [2002] ICJ Reports 219, 253–54. 79  Kosovo (Advisory Opinion) (n 46) 594. 80 See, eg, J Spigelman AC, ‘The Forgotten Freedom: Freedom from Fear’ (2010) 59 ­International and Comparative Law Quarterly 543, 549–59; S Fredman, ‘The Positive Right to Security’ in BJ Goold and L Lazarus (eds), Security and Human Rights (Oxford/Portland OR, Hart Publishing, 2007); L Lazarus, ‘Mapping the Right to Security’ in Goold and Lazarus (ibid). 81  Spigelman (n 80) 549. 82  For discussion, see, eg, Piet Hein van Kempen, ‘Four Concepts of Security—A Human Rights Perspective’ (2013) 13 Human Rights Law Review 1. 83  Cf J Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11 Journal of Political Philosophy 191, 208–09. 84  See, eg, Lazarus (n 80) 344. 77 

Human Security and International Law 39 human security ­perspective leads to a pathological use of human ­security as a ­ justification for controversial measures within the existing legal framework. B.  Pathology of Human Security While human security is, as argued above, essentially a public interest, concerned with the security of individuals as members of the community, rather than each individual’s own personal security, too much emphasis on the collective, as opposed to each individual, blurs the line between human security and national security. In a twisted sense, human s­ ecurity can be conceived of as a necessary precondition to a society in which human rights can be exercised and, thus, justify derogation from the human rights of certain individuals. This is the line of argument adopted by former Canadian Attorney-General Irwin Cotler, in assessing the human rights compatibility of controversial counter-terrorism legislation, describing it as ‘“human security” legislation that purports to protect both national security and civil liberties’.85 A similar position was adopted by former Australian Attorney-­General Philip Ruddock in his theoretical, human security-based rationale for Australia’s controversial counter-terrorism legislation. According to ­ Ruddock: Human security is a broad concept focused on the individual or community, rather than the state. Human security rests upon security for the individual ­citizen, which requires not only the absence of violent conflict, but also respect for human rights and fundamental freedoms … While it is accepted that any tightening of security arrangements will impact on certain rights, a more useful debate is to consider whether tightening security arrangements is in the interests of protecting fundamental human rights as a whole.86

This argument was advanced as a justification for depriving certain ­individuals of their fundamental rights and freedoms, on the grounds that it ultimately promotes human security by preserving a society in which rights and freedoms can be exercised without a fear of terrorism. What we see in this line of argument is reliance on the normative goal of human security, as a way of shifting the balance between national security and

85  I Cotler, ‘Thinking Outside the Box: Foundational Principles for a Counter-Terrorism Law and Policy’ in RJ Daniels, P Maklem and K Roach (eds), The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto, University of Toronto Press, 2001) 112. 86 P Ruddock, ‘A New Framework: Counter-Terrorism and the Rule of Law’ (2004) 16 The Sydney Papers 113, 116–17.

40  Hitoshi Nasu individual human rights, without explaining why the shift is towards the reduction of human rights (not the other way), or to what extent it can be shifted.87 The notion of human security is only given limited consideration as a normative goal, without being projected into the third analytical security dimension, concerning the means by which security threats are to be addressed. Human security is not a language of oppression, but rather one of empowerment and emancipation. Another area that illustrates the potential pathological use of human security concerns the debate on humanitarian intervention. In particular, early literature on human security considers this concept to be ‘interventionist by nature’, encompassing the use of force for more cosmopolitan goals.88 This, again, reflects the pitfall of a limited understanding of human security as being only a ‘normative goal’ and the failure to harness its potential in full as the ‘means’ to address security threats. It would be too much to expect a human security approach to have positive impacts on the future debate about humanitarian intervention, given the inherent dilemma posed by competing norms and moral imperatives, which ­cannot simply be resolved by embracing human security as a substitute for national security.89 Irrespective of the true intention behind the notion of human ­security, lingering concerns over the concept have been associated with the ­ ­suspicion that it might be used to justify unwarranted intervention in vulnerable countries for political reasons, without having regard to the real needs and priorities of their peoples and even, perhaps, at the expense of their social and political stability.90 Policy-makers in Southeast Asia, for example, have been wary of the ‘freedom from fear’ aspect of human security, due to their apprehension that it may justify external intervention in their internal affairs that often involve violations of human rights and international humanitarian law.91 The UN Secretary-General’s f­ollow-up

87 See, B Golder and G Williams, ‘Balancing National Security and Human Rights: ­ ssessing the Legal Response of Common Law Nations to the Threat of Terrorism’ (2006) A 8 Journal of Comparative Policy Analysis 43, 53. 88  G Oberleitner, ‘Human Security: A Challenge to International Law?’ (2005) 11 Global Governance 185, 194. See also, Kaldor (n 1) 182–97; N Thomas and WT Tow, ‘The Utility of Human Security: Sovereignty and Humanitarian Intervention’ (2002) 33(2) Security Dialogue 177. Cf P Upadhyaya, ‘Human Security, Humanitarian Intervention, and Third World ­Concerns’ (2004) 33 Denver Journal of International Law and Policy 71. 89 See especially, S Chesterman, Just War or Just Peace? Humanitarian Intervention and ­International Law (Oxford, Oxford University Press, 2001); von Tigerstrom (n 12) Ch 4. See also, D Chandler, ‘Resilience and Human Security: The Post-Interventionist Paradigm’ (2012) 43(3) Security Dialogue 213. 90  UN Doc A/66/PV.112 (4 June 2012), 6 (Egypt), 8 (Venezuela), 9 (Japan), 14 (Costa Rica), 15 (India), 21 (China). 91  Y Nishikawa, Human Security in Southeast Asia (London/New York, Routledge, 2010) 37; A Acharya, Promoting Human Security: Ethical, Normative and Educational Frameworks in ­South-East Asia (Paris, UNESCO, 2007) 21.

Human Security and International Law 41 report on human security, and the subsequent debate in the UN General Assembly in 2012, put an end to the idea of linking human security with military intervention. The report emphasises a common understanding that human security does not entail a threat or use of force and is implemented with full respect for the purposes and principles of the UN Charter, including the full respect for state sovereignty and the principle of nonintervention­.92 Moreover, human security is now clearly distinguished, and even dissociated from its sibling, the ‘responsibility to protect’ ­doctrine,93 presumably due to the political stigma attached to the latter in the aftermath of NATO’s intervention in Libya in March 2011 as the implementation of the doctrine under Security Council Resolution 1973.94 Nevertheless, concern for the misuse or abuse of human security for the political interests of powerful states remains strong. Indeed, the ­persistent call for reaching an agreement on the definition of human ­security, expressed by a few states during the UN General Assembly debate on human security in 2012, appears to stem from the fear that a vaguely framed concept could potentially be misused.95 However, as examined above, it is the limited understanding of human security, rather than the ambiguity of the concept itself, that invites the misuse or abuse of the ­concept. Harnessing the full potential of human security, rather than ­seeking to define it in narrow terms, appears to be a better way to address the concern. VI. CONCLUSION

Notwithstanding (or thanks to) its amorphous nature, human security functions as a security multiplier in all three dimensions of the analytical framework of security. It provides a normative and practical framework to ensure that concerted efforts to develop norms, processes and institutions systematically address insecurities, from the perspective of those who are actually suffering or perceiving the threats. However, this chapter has demonstrated that its limited normative impact so far has been due to the restricted application of the notion, as much as the legal and structural obstacles within the existing framework of international law. Thus, the idea of human security challenges international law, not only in respect of

92 

Report of the Secretary-General (2012) (n 7) para 36. Report of the Secretary-General (2012) (n 7) paras 22–23. See also, UN Doc A/66/PV.112 (4 June 2012) 6 (Egypt), 7 (Cuba), 9 (Japan), 12 (Russia), 15 (India), 16 (Brazil), 18 (Malaysia), 19 (Pakistan), 20 (Syria). Cf Report of the Secretary-General (2010) (n 7) paras 23–24. 94  See, D Berman and C Michaelson, ‘Intervention in Libya: Another Nail in the Coffin for the Responsibility-to-Protect?’ (2012) 14 International Community Law Review 337. 95  See, eg, UN Doc A/66/PV.112 (4 June 2012) 16 (Brazil), 19 (Syria). 93 

42  Hitoshi Nasu its sovereignty-based legal framework but, more significantly, in relation to the very notion of security shared by policy-makers and jurists. By embracing and promoting the notion of human security to its full potential, existing obligations, such as those towards refugees, internally displaced people and those who are in protracted refugee situations, can be revisited in order to facilitate a more appropriate implementation that accommodates their perspective.96 It may also promote the adoption of new treaties, amendment or re-interpretation of existing treaty obligations in a broader range of areas, such as food security, health security and ­climate change. The potential of human security’s normative effects is yet to be fully harnessed. Therefore, it remains to be seen to what extent mainstreaming human security will actually challenge the sovereignty-based framework of international law and to what extent the legal and political structure of the UN collective security system is capable of accommodating human security perspectives, in dealing with traditional or non-­ traditional security issues. Embracing and harnessing the full potential of human security is also important in order to prevent a misuse or abuse of the notion for promoting or attempting to justify restrictive, oppressive means to achieve security under the guise of ‘human security’. A practical framework ­provided by human security broadens the way in which we can consider and address security issues—not simply through a rights-based approach or development aid, but more importantly, by recognising and promoting its contribution to new legal development and new jurisprudence. The normative and practical impacts of human security on the development of international law thus depends on the extent to which states, policymakers and jurists are prepared to move beyond the definitional debate and embrace its perspective and philosophy of empowerment in their decision-making processes.

96 

Okudaira and Nasu (n 55) 171–83.

3 Human Security versus Environmental Security: At Legal Loggerheads JOHN PEARSON

I. INTRODUCTION

T

HE UNITED NATIONS Development Report of 1994 entitled ‘New Dimensions of Human Security’ (UNDR 1994), introduced the ­concept of ‘human security’—highlighting it as ‘the key ­challenge for the 21st century.’1 In itself, such a claim might be said to be little more than rhetoric, but the recommendations of the second chapter of the report indicated a wide-reaching intention. The final point for consideration, put forward in the chapter, recommended ‘that today’s framework of global institutions be reviewed and redesigned to prepare those institutions fully for doing their part in tackling the urgent challenges of human ­security.’2 Indeed, by way of ensuring the validity of the concept, a significant proportion of the chapter is dedicated to defining the term—a process repeated in a later Report of the Secretary General of the United Nations in 2010 concerning Human Security.3 Although numerous definitions of human security are considered in both texts, two recur and will form the focus of this chapter. The first is the most basic and widely espoused construction of the concept that ‘all ­individuals, in particular vulnerable people, are entitled to freedom from fear and freedom from want, with an equal opportunity to enjoy all their rights and fully develop their human potential,’4 often referred to s­ imply

1  UN Development Programme (UNDP), Human Development Report 1994 (UNDP Report, 1994) 39. http://hdr.undp.org/sites/default/files/reports/255/hdr_1994_en_complete_ nostats.pdf. 2  ibid 40. 3  United Nations General Assembly (UNGA), ‘Human Security Report of the SecretaryGeneral 64/701’ (2010) UN Doc A/64/701 (UN Human Security Report) www.afes-press. de/html/pdf/UNGA_A64701_ReportOfTheSecretaryGeneralOnHumanSecurity.pdf. 4 UNGA, ‘World Summit Outcome’ UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1 (UNGA Res 60/1).

44  John Pearson as ‘the freedom from fear and freedom from want.’ The second is the ­composite construction of the concept under which ‘the main elements of human security’ are said to comprise the ‘seven key components’5— economic, food, health, environmental, personal, community and ­political securities. These definitions and constructions are all bound together by the core reasoning behind the initial proposal that The concept of security has for too long been interpreted narrowly as security of territory from external aggression, or as protection of national interests in foreign policy or as global security from the threat of a nuclear holocaust.6

As such, the concept of human security is put forward as a new ‘­framework’ on which national and international institutions, governmental and otherwise, can base their policies and actions. The framework, as defined in the 1994 UNDP Report7 and subsequent texts,8 misrepresents the reality of the threats to both the seven key ­component securities of the concept and the broader aim of ‘freedom from want and freedom from fear.’ Ultimately, ensuring a common level of security for all peoples, relative to both the innumerable social, cultural, economic and political realities of themselves and their states, is highly improbable, if not impossible, without it being set at so low a threshold as to be meaningless. As such, a solid and enforceable basis for universal human security, from which the more subjective components may be aspired to by states with the capacity to do so, is both a necessary and more achievable goal. Such a framework would protect the elements upon which less regimented and universal development can be built through the imposition of minimum obligations that all parties can meet and can progress from. Examples of this approach already exist in the international legal sphere in the fields of human rights and environmental law. Human rights law offers protection relating to many of the issues raised by the discussion concerning the scope and definition of human security within the texts considered above. They demand basic standards in relation to fundamental provisions and certain ‘minimum core obligations’9 where an element of relativity is required. Environmental law, however, presents both commonalities and potential conflicts to the proposed

5 

UN Human Security Report (n 3) 14. UNDP Report 1994 (n 1) 22. 7  UNDP Report 1994 (n 1) 24. 8  UN Human Security Report (n 3) I(4) and UNGA Res 60/1 (n 4) 31. 9  UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No 3 the Nature of States Parties’ Obligations (Article 2(1))’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (12 May 2003) UN Doc HRI/GEN/1/Rev.6 (CESCR General Comment No 3) 10. 6 

Human Security versus Environmental Security: At Legal Loggerheads 45 c­oncept of human security, though its subject matter offers arguably a more effective basis from which it might be possible to achieve the aims of the concept. However, enforcing human security, or directly seeking a basis for it through legal measures, would be fraught with difficulties. This is owing to the problem of identifying objective criteria upon which to base provisions that both address the needs of individuals and garner the necessary compliance of states with the resultant obligations imposed upon them. The inappropriate nature of a legal approach to guaranteeing a minimum level of human security in itself is accepted, albeit implicitly, in the drafting of the 2012 General Assembly Resolution on the issue. The Resolution states that ‘Human security does not entail additional legal obligations on the part of States,’10 thereby relegating it to being a mere policy framework to be considered in the formulation of, and as an aim for, prospective legislative provisions. A framework for on-going policy and action in the area of human ­security, however, requires an element of underpinning or a structure upon which it can be based. For example, economic, social and cultural rights are subject to progressive implementation that suggest goals in a manner akin to a policy framework, but have minimum core obligations to ensure efficacy. While some states will forego short term gains and interests in the name of achieving long term stability, they are in the minority. Thus, in order to ensure that minimum standards capable of supporting the most basic aspects of human security are preserved, and from which a higher level of the concept might serve as an aspiration, provisions of a binding nature are essential. Relativity in particular contexts is, however, an essential consideration to ensure the highest legitimacy and e­ fficacy of any such measure. This is evidenced by the perpetual debate over the ­merits of universalism and cultural relativism in human rights law. Both the fields of human rights and environmental law have developed methods of dealing with the aforementioned issues of relativity where ­necessary and offer a means that could afford a suitable legal basis for the elements of human security. Environmental security, in particular, represents a basis that could allow states to meet the minimum human security standards suggested above. This could be achieved through a relative legislative approach, of the type accepted as fundamental, in order to include the innumerable aspects of the framework as it is currently defined. This is because many of the ­elements of human security, and certainly those with which the individual is most concerned and reliant upon, demand a requisite level

10  UNGA, ‘Follow-up to Paragraph 143 on Human Security of the 2005 World Summit Outcome’ UNGA Res 66/290 (25 October 2012) UN Doc A/RES/66/290, 3(h).

46  John Pearson of e­ nvironmental security to ensure them. Thus, it is suggested that in order for human security to be achieved, a legislative basis centred upon ensuring environmental security, without which human security cannot be assured, must be laid down. Using existing examples of provisions and approaches from the fields of environmental and human rights law, and suggesting protections that might be afforded in a similar manner, it is suggested that only through ensuring environmental security is it possible to achieve the same result for human security. This proposition is illustrated in a number of ways, firstly, through ­established environmental law where, only when the environment has been placed above solely anthropocentric concerns, has it been truly effective in safeguarding not only environmental concerns, but also ­ factors inextricably linked to the composite construction of human ­ ­security. The result demonstrates that environmental security can exist without human security, but the reverse is not true. The two concepts ­cannot therefore be regarded as mutually exclusive. Moreover, acceptance that a stable and consistent environment is integral to ensuring the concept of human security (as defined by the United Nations), and is attainable to any worthwhile degree in practice, is necessary. The potential for the two concepts to conflict in their role as a framework for international legal and policy development is therefore not only apparent, but also real in practice and in need of resolution. II.  ENVIRONMENTAL EXEMPLARS

The means by which protection has been afforded to the environment has varied widely, with the efficacy of some measures being severely ­questioned whilst the success of other means has been extoled to an ­equivalent degree. Arguably one of the clearest examples of this is the void in efficacy between the international legal responses to atmospheric damage caused by carbon dioxide and chlorofluorocarbons (CFCs).11 The presence of both in the atmosphere has been increased or caused by human action and yet the action to curtail their impacts varies considerably. Whilst the responses could never be identical, aspects of the regulation of CFCs, which are regarded as the cause of its success, were not transferred to any noticeable degree onto those aimed at constraining atmospheric carbon dioxide and other greenhouse gases, which appear in later treaty texts. 11  Whilst better examples of contrasting success and failure in international ­environmental protection are available, the provisions used are well recognised and have particular ­relevance to the contentions concerning human security. Many thanks to Dr Elizabeth Kirk for her contribution here.

Human Security versus Environmental Security: At Legal Loggerheads 47 A number of other factors have irrefutably influenced the success of efforts to reduce emissions of carbon dioxide through legal mechanisms, but the basic elements of the drafting approach, which has been taken to ensure the reduction of levels of emissions of the gas, are starkly contrasted to those used to achieve the same goal in relation to CFCs. This is reflected, it is suggested, in the positioning of environmental concerns in the hierarchy of considerations taken in the drafting and application of the legal instruments in question. The preamble of the Montreal Protocol on Substances that Deplete the Ozone Layer12 is clear in its ‘determination’ to protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it, with the ultimate objective of their elimination on the basis of developments in scientific knowledge, taking into account technical and economic considerations and bearing in mind the developmental needs of developing countries.13

The Kyoto Protocol14 to the United Nations Framework Convention on ­Climate Change15 by contrast merely refers back to the aims contained within the preamble of the Convention itself, which state the ‘­ determination’ to ‘protect the climate system for present and future generations’, whilst also considering the need for ‘sustained economic growth’, and that provisions ‘will be environmentally, socially and economically most effective if they are based on relevant scientific, technical and economic considerations’.16 The Montreal Protocol accounts for technical and economic considerations separately in relation to CFC reduction, suggesting they are of secondary concern, as opposed to Kyoto, which considers their environmental, economic and social viability as a whole, implying equality in the significance of each of those elements in achieving the aims of the ­Convention. Again, this may be an oversimplification as the number of practices and processes emitting carbon dioxide are far greater and include a far broader range of naturally occurring substances, however, valid and accepted parameters for their reduction are available. Approaches akin to those aimed at eliminating the production of CFCs altogether may ­therefore be transferrable. The reluctance of the Kyoto Protocol to focus upon the ­environmental concerns of climate change and to regard the economic and social

12  Montreal Protocol on Substances that Deplete the Ozone Layer UN Doc UNEP/002565 (1987) (1987) 26 ILM 1550 (Montreal Protocol). 13  ibid Preamble. 14 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 10 December 1997, entered into force 16 February 2005) (1998) 37 ILM 22. 15 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) (1992) 31 ILM 849 (UNFCCC). 16  ibid Preamble.

48  John Pearson c­onsiderations, which present little or no negative consequences to the environment, as necessarily peripheral to the central aim of reducing ­carbon dioxide to a measurable level has cemented its inefficacy. The ­Protocol is riddled with numerous concessions to anthropocentric ­concerns, most significantly, the imposition of a trading scheme allowing states to, in effect, ‘buy their way out’ of their international obligations under the treaty text in order to preserve their economic, social and developmental concerns. In turn, this has undermined the ability of the mechanism to curtail emissions globally, as evidenced by the recent passing of the threshold of 400 ppm17 of carbon dioxide in the atmosphere, which is considered to be a significantly difficult point from which to return. The assertion that international law is ultimately based on the consent of sovereign states is a valid one. The undeniable success of the M ­ ontreal Protocol would suggest, however, that this is not based solely upon naïve utopianism. Indeed, as further evidence, at the time of its drafting the ­Montreal Protocol was not universally regarded as the best means of achieving the cessation of the use of CFCs, yet it is now hailed as one of the most successful framework mechanisms in the history of e­ nvironmental law.18 The Kyoto Protocol by contrast lacks certain key parties, such as the United States, and is regarded by many as a ‘deeply flawed agreement that manages to be both economically inefficient and politically impractical.’19 Moving from the political difficulties in achieving consent to international treaties, the contrast in the success of the two protocols in p ­ ractice can be attributed to the differences in drafting and the priority that was given to the environmental goals, which form their respective purposes. The Montreal Protocol aims at the elimination of the use of certain ­substances in their entirety. Whilst such a goal with respect to carbon dioxide and other greenhouse gases is not possible, and could not therefore be set, achieving and legally imposing ‘carbon neutrality’ in particular industries, or in relation to certain products in the manner utilised by the Montreal Protocol, is not so inconceivable. The United Nations itself is committed to such a goal for the organisation by 2020, according to its 2012 report,20 which also contains a foreword by Secretary General Ban Ki Moon stipulating his belief that Member States have given the ­organisation ‘a mandate’ to achieve such aspirations.

17 

Parts per million. Former Secretary General to the United Nations Kofi Annan is widely quoted as having said that ‘Perhaps the single most successful international agreement to date has been the Montreal Protocol.’ K Annan, We the Peoples: The Role of the United Nations in the 21st Century (New York, United Nations Department of Public Information, 2005) 56. 19 WJ McKibbin and PJ Wilcoxen, ‘The Role of Economics in Climate Change Policy’ (2002) 16(2) Journal of Economic Perspectives 107. 20  A Steiner, ‘Foreword’ in UN Environment Programme (UNEP), A Vision of a Sustainable UN—2020 (UNEP, 24 October 2012) www.greeningtheblue.org/sites/default/files/vision_ sustainable_UN_27.01.13_3.pdf. 18 

Human Security versus Environmental Security: At Legal Loggerheads 49 In spite of this, the construction of the framework of human security reflects a priority hierarchy akin to that of the Kyoto Protocol rather than the Montreal Protocol, even though the latter has been hailed as the greater success. Given that the framework of human security ‘calls for people-centred, comprehensive, context specific and preventive responses’21 to threats to its component securities, this hierarchy undermines that core concept. This is because placing the concerns of developed and stable human situations alongside environmental concerns in any priority s­ tructure, fails to reflect the accepted position of the United Nations Development Programme that ‘the poorest regions of the world, which contribute least to the causes of global climate change, are most vulnerable to its consequences’.22 Instead, such a hierarchy is based on the flawed approach of balancing the concerns of the developed minority against environmental considerations. The assertion that the present approach fails to take into account the overriding importance of environmental security for all peoples is an ­ undeniably bold one. However, when the critical role of the environment in terms of the present and future goals for each of the other components of the human security framework is considered, the inadequacies of the current structure in arguably affording the most fundamental aspects of human security are evident. In this regard, the argument is that without some ­concept of environmental security being assured, other aspects of human security as overriding considerations are neither achievable nor justifiable. III.  POLITICAL PROBLEMS

Arguably the most difficult of the seven key components of human ­security to illustrate as dependent on environmental security, is that of political security. Broadly defined as comprising freedom from political repression by the state and organs thereof,23 the immediate relevance of the environment in avoiding such eventualities is not apparent. However, the UNDR 1994, which introduced human security in the form it is now conceived, itself proclaimed the connection between the two concepts. Indeed, upon reflection, and considering some contemporary and ­historical socio-political tensions, it is clear that ‘when people perceive threats to their immediate security, they often become less tolerant … Or where people see the basis of their livelihood erode such as their

21 

UN Human Security Report (n 3) 69. Development Programme—Global Environment Facility, ‘Annual Report: ­Adapting to Climate Change’ (May 2010) (UNDP-GEF, Annual Report) 16 www.un.org/ru/­ publications/pdfs/unep%20annual%20report%202010.pdf. 23  UNDP Report 1994 (n 1) 32. 22  UN

50  John Pearson access to water, political conflict can ensue.’24 Given also the variety of ­political ­situations internationally, both in terms of structure and form, and in relation to ­current affairs, the ‘emphasis on the interconnectedness of threats’25 in the field of human security would suggest that threats to political security ­arising from other factors would be the primary concern for this framework. Similarly, the ‘preventive’ approach of human security supports the ­contention that it is the causes of political insecurity that ought to be the focus of policy and legal approaches to ensuring human security. Indeed, to attempt to prevent political security without preventing its causes would be farcical. Enabling political regimes, regardless of the form they take, to provide for the most basic needs of its population is, therefore, the most logical approach to ensuring this component of human security. In this regard, ensuring environmental security, and the ‘basis of their l­ ivelihood’ in the broadest sense, is integral to preventing political ­insecurity from arising by virtue of discontent among peoples. Essentially, whilst political security is by no means guaranteed ­absolutely by protecting an environment capable of meeting the most basic needs of peoples, the failure to do so will dramatically increase the likelihood of political in security. As Sands notes, ‘a failure to protect the environment adequately may give rise to individual human rights ­violations, ­particularly in relation to rights associated with the enjoyment of a person’s home and property.’26 Similarly, it was noted in the Brandt Report that ‘ensuring survival’ through securing the most basic environmental features was necessary ‘to make the world more peaceful and less ­uncertain.’27 As such, it is clear that the United Nations’ suggested ­framework of human ­security for the development of international law and relations does not recognise this previously acknowledged ­necessity to ensure environmental security in order to avoid almost inevitable ­political insecurity.

24 

ibid 23. UN Human Security Report (n 3) 30. 26  P Sands and J Peel, Principles of International Environmental Law, 3rd edn (Cambridge, Cambridge University Press, 2012) 797. 27 Brandt Commission, North-South: A Program for Survival. (Report of the Independent ­Commission on International Development Issues) (London and New York, Pan Books, 1980) 77. 25 

Human Security versus Environmental Security: At Legal Loggerheads 51 IV.  FUNDAMENTAL FOR FOOD SECURITY

A connection between food and environmental security is far more apparent. In numerous texts published by the United Nations, it is stated that climate change is expected to affect agriculture and food security through its impacts on water availability, land and crop productivity, and the distribution and productivity of rangelands, fisheries and other ecosystems.28

The impact of adverse climatic and environmental changes upon almost all food sources is undeniable. For this reason there is considerable irony in the fact that livestock production to supply said food accounts for 18 per cent of greenhouse gas emissions, 26 per cent of the ice free terrestrial ­ ­ surface of the planet and eight per cent of global human water use.29 This set of statistics is compounded by the fact that ‘it is estimated that 30–50% (or 1.2–2 billion tonnes) of all food produced on the planet is lost before reaching a human stomach.’30 As such, preserving the ­environment through policies aimed both directly at that goal and at reducing the consumption of natural resources to produce food, including the waste thereof, will in turn eliminate a threat to food security. Such a suggestion, it must be conceded, is fairly broad in nature. Although the notion of climate change has been alluded to as a seminal factor, the issues of consumption and pollution of both water and land, the emission of non-greenhouse gases and non-organic waste, as well as the ability to produce the requisite energy needed to produce food on a scale to support a burgeoning global populace, are all inextricably linked to food security. All of these factors are subject to, or have proposed, p ­ olicy prescriptions or legislative instruments concerning them as a whole, or aspects thereof. This is illustrated by the fact that tailored responses to each are achievable. By contrast, the construction of an instrument to assure a prescribed level of security would not be possible owing to the inexorable p ­ lethora of ­ variables that such a text would have to take into account. The ­environmental factors listed above, as well as the domestic economic, social and health issues in each individual state, would have to be assessed and amalgamated to arrive at any comprehensive framework that is i­nclusive of all the potential factors influencing food security globally. Such an

28 

UNDP-GEF, Annual Report (n 22) 35. Nations Food and Agriculture Organisation, ‘Livestock’s Long Shadow: ­Environmental Issues and Options’ (Rome, May 2006) xxi–ii. 30 Institution of Mechanical Engineers, ‘Report: Global Food: Waste Not Want Not’ (­ January 2013) Executive Summary www.imeche.org/docs/default-source/reports/­ Global_Food_Report.pdf?sfvrsn=0. 29 United

52  John Pearson achievement, if possible, would result in the construction of an instrument that is likely to be so diluted as to be condemned to ineffectiveness. This criticism has already been levelled at international legal developments in relation to the closely aligned notion of sustainable ­ ­development.31 There it is contended that an inability to clarify the ­definition of the concept of sustainable development, and factors influencing it, have led to its ‘dilution into a concept with little meaning’.32 By contrast, the prioritisation of environmental security allows for the incorporation of scientifically imposed aims of a specific nature but also reflective of a global reality, such as the much vaunted rise in global temperature or parts of carbon dioxide per million in the atmosphere, to act as an indicator of the effectiveness of efforts to curb climate change. Multinational cooperation on environmental security could thus bring about national or regional approaches to achieving food security relative to particular national or regional situations. As a result, gaps in nutritional balances, poor harvests or the inability to grow particular foodstuffs could be balanced by economic markets and multilateral trade agreements. This in turn would reduce the need to create as great a volume of potentially cumbersome and ineffectual policy and legislation that must grapple with a concept so diverse, in terms of both its form and influencing factors, as that of food security. The contention that environmental security ought to be prioritised to avoid undermining the other component parts of human security, and therefore the proposed framework itself, does not account for factors of a non-environmental nature. More specifically in relation to food security, the issue of equitable food distribution domestically and internationally is one with considerable repercussions for, and emanations from, political security, given that ultimately not all individuals cultivate their own food and very rarely does an individual provide for all of their own and their dependants’ needs. Nor does such an approach assure healthy and ­balanced diets for the global populace potentially achieved by a free ­market in food, itself subject to social and political influence. However, we can be sure that failing to prioritise what ultimately allows us to cultivate food in the most basic sense, will inevitably result in food shortages and potentially give rise to threats to the political, economic, social and health security of individuals. As such, the interconnected nature of the component aspects of human security is not negated by the

31 See D Tladi, Sustainable Development in International Law: An Analysis of Key ­Enviro-Economic Instruments (Pretoria, Pretoria University Law Press, 2007) 80 www.pulp. up.ac.za/pdf/2007_03/2007_03.pdf. 32  D Tladi, ‘Sustainable Development, Integration and the Conflation of Values: The Fuel Retailers Case’ in D French (ed), Global Justice and Sustainable Development (Leiden, Martinus Nijhoff Publishers/Brill Academic, 2010) 76.

Human Security versus Environmental Security: At Legal Loggerheads 53 suggested prioritisation of environmental security. Achieving such an aim through a narrow approach would not be possible, given the aforementioned diversity of potential and interrelated factors that comprise food security. Assuring the basic environment on which measures to achieve the goals on which food security is based, is arguably realisable; certainly, the creation of provisions that bring about the critical factors in protecting food security is achievable. Even so, regulating a notion as subjective as ‘adequate food’33 or ‘dietary needs’34 could be fraught with difficulties and disagreement. Indeed, General Comment No 12 of the Economic and Social Council of the United Nations concedes, in its pronouncement on the right to adequate food, that ‘the precise meaning of “adequacy” is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions, while “sustainability” incorporates the notion of long-term availability and accessibility’.35 Thus, the concept of sustainability is inexorably bound up with environmental stability. As such, there is already a degree of recognition of the overbearing significance of environmental security to the other aspects of human ­ ­security and, indisputably, in the case of food security. In this regard, instruments prescribing the maintenance of certain thresholds within the natural environment have both been suggested and put into force. The Kyoto Protocol is one such instrument. The absence of a text prescribing a specific target for nutrition, without any element of subjectivity, is notable and illustrative of the premise of this chapter—that only once ­environmental security has been adequately assured can any concept of food security also be achieved. V.  HARMING HEALTH

Similar to food security, the concept of health security bears apparent connections to, and dependencies upon, a certain standard of environment. The quality of air, cleanliness of water and avoidance of malnutrition through the production of food, as detailed above, are all critical aspects of ensuring the requisite level of health to describe an individual as secure in this regard. In turn, these aspects are all dependent upon the

33  UN CESCR, ‘General Comment No 12 Right to Adequate Food (Article 11)’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (12 May 2003) UN Doc HRI/GEN/1/Rev.6 (CESCR ­General Comment No 12). 34  ibid 9. 35  ibid 7.

54  John Pearson aforementioned standard of environment security that is capable of supporting the needs of individuals. Such aspects could, however, be ensured through the imposition of anthropogenic solutions to natural problems. For example, food could be transported to areas where it might otherwise not grow; similarly, water could be piped to arid areas or locations where natural water sources have been contaminated. The threats posed by adverse or abnormal environmental conditions are, however, far broader than the provision of the basic biological needs of air, food and water. By way of illustration, ‘Almost 40% of world ­materials consumption converts to the built environment,’36 and, whilst efforts are being made to increase the sustainability of both building practices and the materials used therein globally, absolute reduction of consumption is impossible. Thus, environmental security also plays a role in ensuring shelter for individuals, another aspect of health and also personal security that calls for some discussion. One area in which the potential threat to health security arising from adverse or abnormal environmental conditions has been subjected to ­considerable research is the area of infectious disease and sanitation. This is especially true in relation to developing states that suffer the impacts of environmental change most acutely. Focus has been placed on diseases such as dengue fever and malaria, the latter of which ‘is an extremely climate-sensitive tropical disease, making the assessment of potential change in risk due to past and projected warming trends one of the most important climate change/health questions to resolve.’37 The knock-on effects of climate and ecosystem alteration in relation to such carrier-borne diseases with their carriers, Arthropods, which are ‘exquisitely sensitive to climate’,38 are potentially immense. In a similar vein, the availability and quality of water, which is heavily dependent upon environmental security, is key in ensuring the reduction of c­ holera and diarrhoea, two of the largest killers of vulnerable individuals in the developing world. Therefore, to consider the role of water separately as an aspect of both food security and health security, fulfilling both differing and allied roles in each instance, would be farcical. Water is needed both to produce food and quench thirst and also to provide vital sanitation.

36 FM Pulselli, RM Pulselli and E Simoncini, ‘Environmental Accounting of Buildings: Outcomes from the Energy Analysis’ in U Mander, CA Brebbia and E Tiezzi (eds), Sustainable City IV: Urban Regeneration and Sustainability (Southampton, WIT Press, 2006) 490. 37  JA Patz, and SH Olson, ‘Malaria Risk and Temperature: Influences from Global Climate Change and Local Land Use Practices’ (2006) 103(15) Proceedings of the National Academy of Sciences of the United States of America 5635. 38 PR Epstein, HF Diaz, S Elias, G Grabherr, NE Graham, WJM Martens, E Mosley-­ Thompson, and J Susskind, ‘Biological and Physical Signs of Climate Change: Focus on ­Mosquito-borne Diseases’ (1998) 79(3) Bulletin of the American Meteorological Society 409.

Human Security versus Environmental Security: At Legal Loggerheads 55 Applying a global framework that attempts to secure both functions of water would potentially give rise to a clash of priorities. Similarly, infrastructures to supply water to all regions vary considerably from ­ one state to another. To prescribe a policy that fits all situations would be immensely difficult and any enforceable provisions to ensure these aims would be rendered ineffectual. In this regard, therefore, the most ­universal approach would again be represented by the application of ­specific and measurable environmental standards aimed at preserving both water quantity and quality. This might take the form of the reduction of water consumption, increases in recycling and the restriction or elimination of practices that excessively consume or make unrecyclable this essential resource. Similar measures might be applied to reduce consumption of natural resources in the construction industry. Meanwhile, food security could be taken into consideration in the construction of such a framework based around the security of an environment that is able to support the most basic aspects of human health for all. From such a basis, aspects of health security in relation to individual states, regions and even continents could be applied at a more appropriate level and in response to specific threats. Thus, whilst malaria is a significant health concern in Africa, to consider it within the formulation of a global framework on health security would be remiss when a regional measure would be more appropriate to that specific threat. By contrast, the provision of adequate water for sanitation and food to stave off malnutrition and to avoid diseases brought about by such deficiencies, and at the same time reducing the spread of more regionally focused diseases by maintaining a more predictable climate, is an appropriate global focus. Such aims would therefore be best served by the ­prioritisation and active protection of environmental security as a basis for a framework on which health security and the other component securities of human security could be established. VI.  PERSONAL PERILS AND CONDEMNED COMMUNITIES

The concepts of personal and community security may be considered in conjunction with, and in relation to, the potential threats that unfavourable environmental conditions might pose. Personal security is firstly derived from the desire of the individual to be free from potential physical harm or violence. Community security recognises the desire of individuals to be a member of a community and to reap the benefits thereof. This is irrespective of whether the basis for said interaction between individuals is cultural, religious, geographical or otherwise. In both cases, the form of security and threats thereto can take numerous forms and can also be undermined or enhanced by environmental factors.

56  John Pearson As has been acknowledged, ‘When people perceive threats to their i­mmediate security, they often become less tolerant … Or where ­people see the basis of their livelihood erode such as their access to water, ­political conflict can ensue.’39 More specifically, the 1994 UNDP Report that defines the concept of human security, as discussed here, re-iterates the point that there is an increased likelihood of reduced tolerance, x ­ enophobic p ­ ractices and instances of oppression resulting in violent protests as a result of concerns regarding immediate security.40 Such individual and ­ communal perceptions of threat are incomprehensibly numerous and subjective. However, as Walker states: for some people and some social groups the environment is an intrinsic part of living a ‘good life’ of prosperity, health and well-being, while for others the e­ nvironment is a source of threat and risk, and access to resources such as energy, water and greenspace is limited or curtailed.41

This variation in perceptions and instances of threats raises feelings of insecurity that severely constrain the efficacy of any response thereto whether based on policy or legislation. An all-encompassing response to all potential threats to personal and community security is unequivocally unachievable. Indeed a response to all potential threats to any one of the component securities of the suggested framework of human s­ ecurity, ­considered by the UNDP Report 1994, is arguably unfeasible. As such the framework should reflect that reality, and nowhere is this truer than in relation to personal and community security, and threats thereto. No ­single framework could hope to encompass all possible causes of threats to personal security and community security. The suggested inefficacy of such an approach is based on the argument that the potential threats, which are under consideration, are highly ­variable owing to differing historical, political and social contexts within a state or region and even within smaller federal subdivisions. For example, the relations between the indigenous peoples of the United States of America and Canada and their respective state organs contrast in numerous crucial ways, such as in relation to property ownership and even when it comes to the classification of ‘indigenous’. Similarly, the causes of threats to an individual’s personal security could be equally as diverse. Even where such threats only emanating directly from state organs are considered, such as persistent police or armed forces brutality, violent protest against policies, or intentional segregation and ill-treatment of a designated group, the underlying causes are incomprehensibly divergent. The threats to these two component securities arising from the 39 

UNDP Report 1994 (n 1) 23.

41 

G Walker, Environmental Justice: Concepts, Evidence and Politics (Oxford, Routledge, 2012) 1.

40 ibid.

Human Security versus Environmental Security: At Legal Loggerheads 57 continuing political violence in Syria and the protests in London arising from the imposition of raised tuition fees for higher education students ­differ both in form and severity, similarly the source of discontent in each case that provoked the responses constituting those threats is not shared equally. Similarly, any international response to these examples would be based on significantly dissimilar political, social and economic contexts and degrees of influence external to the state. These two instances are by no reasonable means comparable and yet both give rise to threats to personal and community security, if the definitions provided in the 1994 UNDP Report,42 which suggest they are components of the broader framework of human security, are taken into account. To maintain, therefore, that a ­single conceptual framework for on-going and future policies and actions by states, within regions or on a global scale, could hope to take into account such variation and respectfully direct future measures would, at best, be remiss. Thus, the potential causes that can be addressed on a level outside of those wildly variant national contexts ought to form the basis of any framework originating from outside them, with issues of a nature primarily relative to states being subject to similarly relative domestic responses. Such an approach is akin to the notion of ‘weak cultural relativism’ proposed by Donnelly in his consideration of approaches to strik­ ing a ­balance between a utopian vision of a universal human rights regime and respect for the diversity of culture globally. He suggests an approach in which ‘Universality is initially presumed, but the relativity of human nature, communities, and rules checks potential excesses of ­universalism.’43 Whilst Donnelly only considers the implications of imposing rules over, or submission to, cultural variations in relation to human rights law and the moral validity thereof, his premise is ­undeniably applicable to the l­ imitations of the concept of human security considered above. Beginning from the premise that there are some policies capable of ­forming a universally applicable framework to which all states could adhere in relation to threats to community and personal security, and indeed entire component securities, is appropriate, the perception that all eventualities within all states could be encompassed by any such framework is farcical. In addition, it would potentially lead to the ‘excesses of universalism’ of which Donnelly warns. The imposition of a framework that fails to take into account the variability of national,

42 

UNDP Report 1994 (n 1) 30–32. J Donnelly, Universal Human Rights in Theory and Practice (New York, Cornell University Press, 2003) 90. 43 

58  John Pearson social and ­economic contexts could lead either to it being disregarded by states or to the rejection of its implementation by the very individuals whose rights it is intended to secure. The difficulty in imposing a ­framework such as that of human security, as suggested in the 1994 UNDP Report,44 and any necessary legislative underpinning, rests in finding universal threats and concerns that can be combatted effectively using ­international responses. The scientific basis for a human security framework that safeguards the aspects of environmental security underpinning it, and which is in turn integral to ensuring the other component securities, is by its very nature universal. This is because it is composed of accepted and collated data and knowledge from states. Thus, responses to threats may be based on the objective conclusions attained by analysis of said data. Political and economic considerations can then be taken into account where necessary, for example, in the cases of a need for positive responses bearing considerable costs or the restriction of highly profitable commercial enterprises. This was the case in relation to the provisions concerning CFCs in the Montreal Protocol,45 at the time the most widely used refrigerant globally. VII.  EMBRACING ECONOMICS

The economic costs of prioritising environmental security are potentially dissuasive from implementing such an approach in some instances. This is especially true where the necessary action requires the use of t­ echnology or resources held primarily by developed nations. In such instances it is regrettably often the geographic regions where the ­ security of the ­environment must be assured as a priority to avoid the most damaging threats to the other component securities that are subject to the s­ overeignty of lesser developed nations. The potentially massive increase in the prevalence of carrier borne ­diseases, such as malaria and dengue fever, owing to relatively minor climatic changes, discussed above, is a prime example of this irony. ­Ultimately, however, the distribution of resources and the sharing of technological and scientific knowledge and equipment will be determined largely by bilateral or multilateral agreements made outside of the sphere of the institutions imposing any framework based upon, or akin to, that of human security. This reality is predicated upon and defers to the continuing respect for the sovereignty of states,46 all but e­ liminating the ­potential 44 

UNDP Report 1994 (n 1) 24. Montreal Protocol (n 12). 46  See in this regard H Steinberger, ‘Sovereignty’ in R Bernhardt (ed), Encyclopedia of Public International Law, Vol IV (Amsterdam, Elsevier, 2000) 501. 45 

Human Security versus Environmental Security: At Legal Loggerheads 59 for any ­ legislative instrument that could impose such ­ magnanimous action. As such, economic considerations of this nature must be accepted as being beyond the realms of any such framework o ­ utside of a g ­ eneral non-­ binding obligation to share and promote the sharing of such resources where their use is inextricably bound up with the aim of said policy framework. Whilst the suggested framework must negate to the greatest degree any possible economic influence upon the principles and policies espoused within it and any binding provisions arising therefrom, the role of that framework, based upon the prioritisation of environmental security in ensuring elements of economic security, is a significant consideration. The concept of economic security presented by the 1994 UNDP Report focuses on the notion of ‘a basic income—usually from productive and remunerative work’.47 However, in the more recent conceptions of the framework, a broader approach to this component security is ­evident. Indeed, in relation to the global financial and economic crisis, ‘the ­multidimensional effects’,48 and, most pertinently, the ‘ecological costs’49 thereof, have been recognised. Whilst the concept suggested in the 1994 UNDP Report reflected an emphasis on job and income security, rather than a more broad conception of the economic security of individuals, the breadth in the more recent considerations50 of the concept are reminiscent of the notion of the human right to a livelihood,51 and the ability to sustain oneself and dependants,52 as perceived in international law. Indeed, the 2012 text following the earlier resolution of 2010, which considered only economic variations and issues in relation to states, also recognises the threats to the ‘livelihood’ of individuals. Such a progression is reflective of the reality that whilst macroeconomic policy, which supports financial and commercial infrastructures, is an area of concern, and onto which a framework might be applied, ensuring the ability to provide for the most basic needs of individuals at a national level is paramount. Sustenance, sanitation and shelter are the three key needs in this regard, yet in the modern context rarely is a family or group able to provide all of these for itself in its entirety. Instead, some semblance of an economic transaction will occur and will do so regardless of the ­macroeconomic climate. Instead, it is predicated on the most basic of abilities to provide. An individual would be far less concerned, if indeed

47 

UNDP Report 1994 (n 1) 25. UN Human Security Report (n 3) 35. 49 ibid. 50  ibid 6 and UNGA Res 60/1 (n 4). 51  International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) Article 11. 52  As interpreted in UN CESCR General Comment No 12 (n 33). 48 

60  John Pearson at all, with macroeconomic issues were they able to provide for all their own needs for themselves and their dependants, without the need for any external assistance or interaction. In this regard, it is essential that basic environmental factors enabling such actions are assured, as highlighted in the 2010 resolution where an emphasis is placed upon the reality of the ‘interconnectedness of threats’53 and ‘interdependence of the challenges we face’.54 Specifically, the text considers that ‘the impact of rising food prices along with climate-related emergencies, protracted conflicts and the global financial and economic crisis is of particular concern to human security.’55 It does not, however, consider whether all such impacts might, in part at least, potentially stem from environmental security concerns and threats. The connection to food prices and climatic issues is apparent and the ­relationship between the discontent arising from such issues is often a cause, or increases the likelihood, of conflict of a physical nature, which in turn poses a threat to personal and community securities. Similarly, the more traditional notions of economic security are subject to the influence of environmental alterations and impacts. The recent rises in food prices are partially attributable to extreme weather and climatic conditions, which in turn place inflationary pressures on economic policy makers the world over.56 Continued reliance upon non-renewable fuel sources, and the inevitable political influence their possession gives a state, are also issues with inextricable environmental security aspects and give rise to concerns about the other component securities that have already been discussed.57 The stability of the market relies, amongst other things, upon environmental factors. Fluctuations in stock market prices of significant corporations and the value of key national currencies in response to events of an environmental nature are clear evidence of this. Irrefutable proof of the impact of human activities on climatic and weather conditions is not, however, universally accepted. Indeed, where it is, the degree of the said impact is certainly not uncontested. As such, all threats to human security arising from natural sources, whether caused by our actions or otherwise, cannot be controlled by politicians or ­lawyers. However, measures to stabilise food prices, impose the greater use of ­sustainable energy sources, eliminate harmful emissions and pollution,

53 

UN Human Security Report (n 3) 30. ibid 31. 55  ibid 38. 56  International Monetary Fund, ‘Global Monitoring Report: Food Prices, Nutrition and the Millennium Development Goals’ (IMF, 2012) 114. 57 J Scheffran, M Brzoska, PM Link, HG Brauch and J Schilling (eds), Climate Change, Human Security and Violent Conflict: Challenges for Societal Stability (London, Springer, 2012) 763. 54 

Human Security versus Environmental Security: At Legal Loggerheads 61 or reduce waste, can be imposed through a legislative underpinning to a conceptual framework such as human security. Those tasked with implementing a human security framework must take into account that the security of the environment represents a ­foundation stone to its success. In turn, such a foundation adds an element of certainty to factors such as those outlined above, thereby giving rise to a more stable basis for economic security where the ability to afford the most basic of needs is more commonplace than at present. The hope of reducing poverty to zero is a highly utopian, if admirable, goal. Ultimately, however, the distribution of even the most fundamental of resources is bound up with incalculable external factors, ranging from economic, through political, to even community concerns. To suggest that any significant improvement in the current levels of income and resource distribution, job security, or the ability to provide for oneself and dependants could be achieved and maintained without a stabilisation of the key aspects of environmental security to the greatest degree possible, would be remiss. As such, the connection suggested between the component concepts of human security and environmental security is also evident in relation to economic security. Whilst environmental security does not ensure economic security alone, the lack of the fundamental aspects of environmental security, nationally, regionally or globally, doom any prolonged concept of economic security to failure or meaninglessness. By way of example, an individual with considerable wealth and an assured occupational status is by no means secure if he cannot feed himself or his family owing to a lack of supply of basic foodstuffs. In such a scenario, his economic security, in terms of monetary wealth, becomes diminishingly relevant. VIII.  FINDING COMMON GROUND

The concept of human security is based upon the common needs and concerns of all peoples. It has an ethical basis that resembles the foundation of human rights law in ‘inherent human dignity.’58 Individual fundamental human rights, enshrined in all human rights texts, are based upon common moral and ethical positions shared by all peoples to some degree, such as the value of human life, the degrading and barbaric nature of torture, a fair trial to deal with breaches of the law, democracy and equality. Whilst all human rights are not universally applied, for the most part, a

58  Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) Preamble.

62  John Pearson base level of fundamental aspects of the rights, as drafted, can be found in the form of non-derogable rights or minimum core obligations placed upon states in international treaties. Nevertheless, common positions in relation to the component securities of human security, which were considered above, are not so forthcoming. As has been discussed, a degree of relativity is required when suggesting a universal framework that might be potentially applicable to all situations. For any framework to be applicable and its goals achievable, a degree of commonality must be found onto which some structure of compliance with measures to achieve those goals can be mapped. As Blanco and Razzaque rightly argue, ‘in order to have an effective system of compliance it is necessary to have an agreed system of rules and standards’.59 Thus, in order to have both a basis upon which to build the framework and any degree of success and direction to its development, there must be some degree of compliance. Returning to the a­ nalogy of human rights, the right to life,60 by way of example, is disputed in relation to the death penalty and abortion, and indeed various levels are applied in its enforcement.61 While arbitrary killing, on the part of the state, is u ­ niversally regarded as a breach of the right, the establishment of ­universal minimum standards for the component securities is not so simple. Contempt for the arbitrary taking of another human life is a shared norm throughout different cultural, political and social structures across the globe, with clear parameters between the living and the dead and without an established defence prescribed by law. Shared economic norms, beyond the ability to provide for the most basic of human needs, are not as readily ascertainable. Even those needs themselves, and the means by which they may be met, vary from an individual in a developed state to one in a less developed situation. As Donnelly states, ‘“human needs” is almost as obscure and controversial a notion as “human nature”’.62 Job and income security are suggested as indicators of a level of human security within the 1994 UNDP Report,63 though this fails to take into account the broader application of economic security, as espoused by the later texts concerning the framework that is supposed to cater for the most basic needs of the individual. To illustrate, although this would be

59  E Blanco and J Razzaque, Globalisation and Natural Resources Law (Cheltenham, Edward Elgar, 2011) 251. 60 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Article 6. 61  With regard to abortion, see American Convention on Human Rights (Pact of San José) (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 Article 6; with regard to the death penalty, see ICCPR Article 6. 62  Donnelly (n 43) 13. 63  UNDP Report 1994 (n 1) 38.

Human Security versus Environmental Security: At Legal Loggerheads 63 unlikely to be the case, the relevance of employed status or the comfort of an income for an individual would be non-existent if they did not, by extension, afford the ability to provide the basic necessities of life for ­oneself and one’s family owing to prevailing environmental conditions. Health is by no means a universal concept either, average life expectancy, degree of inoculation from viral infection, access to clean and safe ­drinking water and a toilet are by no means universally assured to any degree, nor do they, even if assured, ‘secure’ health. Imposing a reality with these factors effectively assured through a global framework and based, where possible, upon an objective legislative basis, without ­taking into consideration local realties, would fail. The effective regulation of access to drinking water, for example, considering the natural prevalence of the resource, the availability and efficiency of recycling and use for other needs, such as food production, or economic realities facilitating payment for water in every instance, would not be possible. Similarly, the concept of food security is reliant upon unpredictable ­factors at a level that is unmanageable from any degree of detachment, such as the global context. Local prevalence of water, weather, native fauna and flora, cultural and traditional preferences and economic incentives for producing non-edible products are a mere selection of the ­factors that may have a considerable impact upon this component security, as has been discussed. As such, finding common standards applicable to all situations would again be nigh on impossible. Even the notions of ‘an ­adequate standard of nutrition’ or ‘sufficient food’ are fraught with subjectivity with regards to differing perceptions of adequacy and sufficiency.64 The imposition of a specific, personal, political or community reality, or aspects thereof, would not only potentially increase tension in certain contexts, increasing the likelihood of disturbance and thus threats to the very securities intended to be protected, but might also constitute a breach of the aforementioned human rights to freedom of speech, expression and association. Indeed, the imposition of political, community and personal standards at a national or regional level is arguably, from a ­historical perspective, one of the most common causes of conflict. This fact has been recognised by the concept of self-determination, which is present in numerous international legal texts, especially concerning human rights, and is itself inextricably connected to the suggested framework of human security.

64  In this regard, one need only consider that there was a need to publish a text suggesting methods to achieve the realisation of this concept. See United Nations Food and Agriculture Organisation, ‘Methods to Monitor the Human Right to Adequate Food’ (Rome, 2008).

64  John Pearson Common environmental standards are, however, potentially ascertainable and indeed have been found in relation to a number of factors. The inherently scientific nature of such standards is arguably at the root of this reality. Common scientific standards in relation to food and health s­ ecurity may be equally achievable, but the aforementioned need to consider c­ultural, political and economic realities is unavoidable. E ­ nvironmental standards, which are common to all states and regions, are, however, both ascertainable and universally implementable, whether through abstention from particular practices, or through greater efficiency in other practices. As a basis for a policy framework such as human s­ ecurity, this allows for minimum standards not only to be set, but also to be enforced. The ability afforded by the scientific basis for environmental protection to set objective and specific thresholds that can form the basis for binding provisions, as evidenced by international environmental law ­generally, is the key to the identification and implementation of such a basis. As the other component securities of the human security framework cannot provide such a basis, as discussed above, there is also an argument of practicality to using this component security as an enforceable basis upon which to build the framework. Whilst this contention is based upon the presumption that such a base is required, the likelihood of states foregoing their self-interests to ensure human security to a minimum degree common to all states, and not reneging on a non-binding commitment to do so at any point, even in the face of threats to their own security, is miniscule. Gillespie suggests one theory amongst many to explain the current actions of states with regard to environmental protection at a level above the national sphere. The ‘self-interest justification’ theory proposes that ‘nations pursue interests at the cost of other nations’65 and there is undeniably evidence of this to some degree in negotiations regarding innumerable environmental texts. An enforceable minimum obligation, akin to that suggested in relation to economic, social and cultural rights in international human rights law,66 would, however, potentially ensure a basic standard of environment to support the progression of human security. Provisions enshrining such a basic standard of environment would also allow states to compare and criticise each other in relation to those obligations, thereby improving adherence to them by enabling them to utilise diplomatic pressure to direct others to meet the targets set. A communal model of enforcement

65  A Gillespie, International Environmental Law Policy and Ethics (Oxford, Oxford University Press, 2002) 25. 66  CESCR General Comment No 3 (n 9) 10.

Human Security versus Environmental Security: At Legal Loggerheads 65 and compliance, reducing ‘the need for enforcement mechanisms’,67 and that goes beyond monitoring of the standards set, would thus emerge in a manner akin to that suggested by Blanco and Razzaque. This is a far cry from the theory of ‘deep ecology’, whereby the need to protect the ­environment is placed above the need to protect the individual or state. However, discerning a common standard, a minimum that all, or most, states would be happy to pursue individually and to be held to ­collectively, would achieve a similar result. Such a position would, ­theoretically, sit between the anthropocentric and deep ecological approaches, finding a middle ground between human needs and ecological preservation. Such a reality would not be possible if human security alone were to be p ­ rioritised above the composite elements that have already been discussed. Instead, a narrower anthropocentric paradigm, based on short term considerations, would emerge and the environment would ‘only be ­ conserved on account of the instrumental values attributed to it by ­ humans’,68 and without an overbearing consideration for the impacts to the environment as a whole. The setting of specific thresholds would also lead to greater cooperation in achieving them, where the benefits of shared action warrant such decisions and a judgement could be more ­easily reached in light of clear and universal goals of the type offered by scientifically backed environmental standards. Again, it should be reiterated that such a reality in no way assures human security globally. Yet, to fail to protect that which underpins it in incalculable and inextricable ways, as the environment does, would be foolhardy. IX. CONCLUSION

The concept of human security is by no means a completely flawed one, indeed the consideration of the numerous influences on the ‘freedom from want and freedom from fear’ suggested by the composite definition, is more reflective of the interconnectedness of reality than many measures that are constructed within the international legal and political sphere. Rarely, if ever, is a non-binding text so inclusive of factors that might ­otherwise be deemed irrelevant or excluded, owing to overbearing ­political and participatory considerations. As Helm points out in relation to the Kyoto Protocol, although the dilemma he outlines is more broadly valid, ‘trying to be too ambitious early has left the main players … on the side-lines.’ While ‘some element of international altruism’ is necessary to

67  68 

Blanco and Razzaque (n 59) 251. Gillespie (n 65) 17.

66  John Pearson achieve environmental aims, the reality is that in relation to undertaking efforts to fulfil some of them, in many senses, ‘countries are better off if they do not’.69 In order to construct a basis onto which binding legal obligations can be applied in order to keep states committed to the common goals such a framework aspires to achieve, common minimum grounds must be found. As Helm goes on to state with regard to any binding international ­environmental legal text when ‘sufficient countries ratify it so that it comes into effect, it provides perhaps the only credible means of asserting moral pressure’70 on other states. Economic, political, community and personal securities are inherently variable and are influenced by an incalculable number of factors. ­Similarly, the most basic aspects of health and food securities can be threatened by an equally immeasurable series of possibilities. A basis for a framework aimed at ensuring such securities, must be constructed around common standards, objectively measurable and attainable by all, whilst allowing the requisite elements of relativity. This balancing act has plagued the development of international law in a broad sense, but the balancing of community, national and regional concerns with global goals is no more prevalent than in relation to environmental law. In spite of this, however, irrefutable successes have been achieved in this field where short term anthropocentric concerns have not been given priority—the Montreal Protocol, discussed earlier in the chapter, is a clear example. To have any hope of achieving the goals it espouses, the framework of human security and legislation stemming from this concept must also take this approach. As has been shown, whilst human security and the six other component securities, beyond that of environmental security, are not guaranteed by a minimum level of environmental security, the ­failure to achieve any definition of them without it, is. There is something of an irony that it is an environmental threat to human security that forms the basis of an analogy of the delicate nature of the concept, when it is stated that Among these seven elements of human security are considerable links and ­overlaps. A threat to one element of human security is likely to travel like an angry typhoon to all forms of human security.71

However, it is another environmentally inspired analogy that more aptly describes the relationship between the component aspects of human

69 D Helm, ‘Climate Change Policy: a Survey’ in D Helm (ed), Climate-Change Policy (Oxford, Oxford University Press, 2005) 26. 70 ibid. 71  UNDP Report 1994 (n 1) 33.

Human Security versus Environmental Security: At Legal Loggerheads 67 s­ ecurity, which have already been considered, that of the house built upon the sand, which is doomed to collapse. Human security and ­environmental security as conceptual frameworks would only be at legal loggerheads where an implementation of the former failed to consider the integral role of the latter, or where efforts were made to apply it absolutely, without any regard to this fact. Thus, the construction of a framework aimed at ensuring freedom from want and fear, and any legislative or ­policy ­instruments stemming therefrom, would be predestined to fail if it did not take into account the inextricable reliance we, as individuals and as a national, regional and global society, retain upon the natural environment around us to provide for the most basic needs of that which it sets out to secure—the human being.

68

4 Regional Security and International Law JULIA SCHMIDT

I. INTRODUCTION

I

N THE AFTERMATH of World War II, Robert Schuman proposed to secure peace in Europe by linking the key industries of the former ­enemies France and Germany together. The coal and steel industries of both countries were to ‘be placed under a common High ­Authority, within the framework of an organization open to the participation of the other countries of Europe’.1 Luxembourg, Italy, Belgium and the ­Netherlands joined both states in the European Coal and Steel Community in 1951. After several rounds of enlargement, the EU today counts 28 Member States. In October 2012, the EU’s ‘successful struggle for peace and ­reconciliation and for democracy and human rights’ and its ­contribution to the transformation of ‘most of Europe from a continent of war to a continent of peace’ was awarded the Nobel Peace Prize.2 The EU has gone through a profound transformation as a regional ­security provider—not only in its perceived role, but also in its actions. Early attempts, inspired by the Korean conflict of 1950, to create a ­European Defence Community, under whose umbrella Member States’ troops would have transformed into a European army,3 failed.4 During the time of the

1 R Schuman, The Schuman Declaration (9 May 1950) http://europa.eu/about-eu/ basic-information/symbols/europe-day/schuman-declaration/index_en.htm. 2  The Norwegian Nobel Committee, ‘Announcement The Nobel Peace Prize for 2012’ (Oslo, 12 October 2012), nobelpeaceprize.org/en_GB/laureates/laureates-2012/announce-2012/. 3  Article 9 EDC. 4 On the European Defence Community see M Trybus, ‘The Vision of the European Defence Community and a Common Defence for the European Union’ in M Trybus and ND White (eds), European Security Law (Oxford, Oxford University Press, 2007) 13–42; RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (The Hague, Kluwer Law International, 1999) 1–5.

70  Julia Schmidt Cold War, Europe was often viewed as being incapable of becoming a major military actor.5 Due to the pressure of the superpowers on Europe, its potential to influence questions of security was regarded as being ­limited to its own continent—if possible anywhere.6 Today, Europe has moved away from being a civilian power.7 Within the last 15 years especially, it has responded to new types of threats and has acquired a new security mandate. When confronted with its inability to adequately respond to the Balkan crisis on its doorstep in the 1990s, the Cologne E ­ uropean ­Council marked the birth of the EU’s common security and defence policy.8 A process was put in motion that equipped the EU with the legal capacity and the civilian and military means to engage in ‘missions outside the Union for peace-keeping, conflict prevention and strengthening international security’.9 Civilian and military means may be used by the EU to fulfil the so-called ‘Petersberg tasks’ that include, but are not limited to, ‘joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, ­including peace-making and post-conflict stabilisation’.10 Within the last decade, the EU has conducted more than 30 civilian and military crisis management missions all over the world. So far, European military c­ risis management operations have been dominated by humanitarian and peacekeeping m ­ issions,11 but the 12 EU has the legal capacity, and has expressed the political will, to engage in robust peace-enforcement as a last resort.13 The EU is just one of many regional organisations with a security mandate. Some organisations, such as NATO, have been founded to ­

5  F Duchêne, ‘Europe’s Role in World Peace’ in R Mayne (ed) Europe Tomorrow: Sixteen Europeans Look Ahead’ (Fontana, Fontana/Collins in association with Chatham House and PEP, 1972) 32, 37. 6  Duchêne (n 5) 37–39. 7 For a discussion on the concept of a civilian power Europe, see C Bretherton and J Vogler, The European Union as a Global Actor, 2nd edn (Abingdon, Routledge, 2006) 41–42. 8 Cologne European Council, Presidency Conclusions, 3 and 4 June 1999, Annex III, ­European Council Declaration On Strengthening The Common European Policy on Security and Defence para1. 9  Article 42(1) Consolidated version of the Treaty on European Union (26 Ocotober 2012) OJ C 326/13 (TEU). 10  Article 43(1) TEU. 11  See, eg Operation CONCORDIA/FYROM, Council Joint Action 2003/92/CFSP on the European Union military operation in the Former Yugoslav Republic of Macedonia [2003] OJ L 34/26; Operation EUFOR RD Congo, Council Joint Action 2006/319/CFSP on the ­European Union military operation in support of the United Nations Organisation Mission in the Democratic Republic of the Congo (MONUC) during the election process [2006] OJ L116/98. 12  Article 43(1) TEU. 13  European Council, ‘A Secure Europe in a Better World: European Security S ­ trategy’ (Brussels, 12 December 2003) consilium.europa.eu/uedocs/cmsUpload/78367.pdf ­[hereinafter European Security Strategy] 11.

Regional Security and International Law 71 ­ rovide security; others have been designed to further economic interests p and have acquired a security mandate over time.14 The latter respond to the changing nature and origins of threats in a globalised society, which make it impossible for states to secure their citizens independently. The 1945 design of the UN Charter places the primary responsibility to restore and maintain international peace and security on the United Nations Security Council (UNSC) and foresees only a secondary role for regional arrangements. In practice, regional organisations, whether they fall within the scope of Chapter VIII of the UN Charter or not, assist the UN in hard security tasks, including peace-enforcement. They provide the UN with much needed resources and rapid reaction mechanisms. Although ­multilateralism can help to overcome some of the UN’s shortcomings, multilateralism also challenges its universal security system. This chapter begins with a brief overview of the developments that ­enabled regional organisations to become security providers and focuses in particular on regionalism and a changed perception of threat-relations. This is followed by an analysis of the legal framework provided by the UN Charter for the use of force by regional security providers, such as the EU, the Economic Community of Western African States (ECOWAS), NATO and the African Union (AU). It will be argued that it may be necessary to draw a distinction between regional organisations acting under ­Chapter VIII of the UN Charter and international organisations of regional ­character acting under Chapter VII. By looking at the intervention in Mali in 2013, Section IV turns to the cooperation between regional actors and the UN in military matters in practice. The final section addresses the challenges ­created by multilateralism for the system of the UN, by examining the practice of some regional actors who used force without a prior and explicitly obtained UNSC mandate and the autonomy claims put forward by others. II.  THE DEVELOPMENT OF REGIONAL ORGANISATIONS AS SECURITY PROVIDERS

Regionalism and a changed perception of threat-relations have been i­ nfluential in the development of regional organisations as security ­providers. The EU is often referred to as a key example of regionalism15

14 EJ Kirchner and R Domínguez, ‘Regional Organizations and Security Governance’ in EJ Kirchner and R Domínguez (eds), The Security Governance of Regional Organizations (­London, Routledge, 2011) 1, 3 and 5. 15  M Schulz, F Söderbaum and J Öjendal, ‘Introduction: A Framework for Understanding Regionalization’ in M Schulz, F Söderbaum and J Öjendal (eds), Regionalization in a Globalizing World: A Comparative Perspective on Forms, Actors and Processes (London, Zed Books, 2001) 1.

72  Julia Schmidt and is viewed as a role model for other regions to strengthen cooperation and integration.16 Regionalism is a developing concept.17 In its o ­ rigin, the project of the EU has been linked to ‘old-regionalism’.18 In the first two decades of the Cold War, regionalism was traditionally imposed from the outside and was seen as a strategy to achieve prosperity and ­security.19 ‘New regionalism’ started to emerge in Europe in the mid-1980s with the Single European Act (SEA) and began to spread to other parts of the world later on.20 The SEA codified the results achieved by the ­system of ­European Political Cooperation, a predecessor of the EU’s common f­ oreign and security policy. The inclusion of political elements into a ­system of economic integration is one of the characteristics of ‘new regionalism’, which is based on the notion that economic matters are linked to other parts of society, such as security.21 ‘New regionalism’ has been conceived as a product of several developments in the universal system, one of them being globalisation.22 In contrast to ‘old regionalism’, ‘new regionalism’ is ­usually associated with a process from below which is encouraged from within the region23—a development that ­enabled regional ­organisations to ‘become actors in their own right’.24 The development of regional organisations as security providers is also interlinked with a change in the perception of threats and security concepts. At the time of the Cold War, states were considered not only to be the main providers of security, but also to be its main referent objects. State security was often approached as a zero-sum game25 and threats were predominantly perceived to come from the outside and to be military in nature. International security was viewed as being particularly threatened by the possibility of a nuclear war, the usage of biological weapons

16  M Schulz; F Söderbaum and J Öjendal, ‘Conclusion’ in Schulz, Söderbaum and ­Öjendal (n 15) 250, 262; J Peterson et al, ‘The Consequences of Europe: Multilateralism and the New Security Agenda’ (2008) Mitchell Working Paper Series 3/2008, Europa Institute, The ­University of Edinburgh www.law.ed.ac.uk/file_download/series/41_­theconsequencesofe uropemultilateralismandthenewsecurityagenda.pdf, 6. 17 Sometimes, a distinction is made between regionalism and regionalisation and ­definitions appear to differ widely. See, eg P Schmitt-Egner, ‘The Concept of ‘Region’: ­Theoretical and Methodological Notes on its Reconstruction’ (2002) 24 Journal of European Integration 179, 187; Schulz, Söderbaum and Öjendal (n 15) 5–7. 18  Schulz, Söderbaum and Öjendal (n 15) 3. 19  ibid, 3–4. 20  ibid, 3. 21 R Thakur and L Van Langenhove ‘Enhancing Global Governance through Regional Integration’ (2006) 12 Global Governance 233, 234. 22  Schulz, Söderbaum, and Öjendal (n 15) 3–4. 23  ibid, 4. 24  B Hettne and F Söderbaum, ‘The UN and Regional Organizations in Global Security: Competing or Complementary Logics?’ (2006) 12 Global Governance 227, 227. 25  P Bilgin, Regional Security in the Middle East: A Critical Perspective (London, Routledge, 2005) 20.

Regional Security and International Law 73 and the race in conventional arms.26 Although it has been recognised that developing countries and newly-independent small states would face their own security issues, these have not yet been linked to the security of other actors.27 The main security concepts of the Cold War, including the balance of power, the politics of deterrence, collective security and ­neutrality, reflect the state centred approach of that time.28 The Copenhagen School of Security Studies introduced a wider and deeper understanding of security, which moves away from the state as the main referent object and the dominance of military threats.29 Instead, Barry Buzan, Ole Wæver and Jaap De Wilde distinguish five security areas—the military, the political, the economic, the environmental and the societal sectors.30 The referent objects of threats in these security sectors are broadened to contain individual species (including humankind), types of habitat, the climate and the biosphere, as well as collective identities.31 According to the Copenhagen School, every issue can be securitised in a process that first, represents a politicised issue as an existential threat to a specific reference object and second, uses a specific rhetoric of survival as well as the need for priority of action.32 Securitisation is finalised once the target audience accepts the existence of the threat.33 In recent years, regional organisations have started to use security language in a manner that appeared to have previously been reserved for states. The EU and NATO, for example, adopted their own security strategies, in which they define key threats and strategies on how to tackle these.34 Both expressed the aim to get involved in the whole-life

26  UN Department for Disarmament Affairs, Report of the Secretary-General, Concepts of Security (New York, United Nations Publication, 1986) [hereinafter Concepts of Security] paras 65–84. 27  ibid, paras 85–94. 28 Alternative security concepts include the policy of non-alignment, the concept of ­peaceful coexistence as well as the notion of common security. On mainstream and alternative security concepts see Concepts of Security (n 26) paras 14–57. 29  B Buzan, O Wæver and J De Wilde, Security: A New Framework for Analysis (London, Lynne Rienner, 1998) 36, 49. On the other hand, for Jef Huysmans the understanding of the concept of security is not so much about a broader approach to threat relations, but rather about competing security rationalities that are hidden in the widening debate. See J Huysmans, The Politics of Insecurity: Fear, Migration and Asylum in the EU (Abingdon, ­Routledge, 2006) 28. 30  Buzan, Wæver and De Wilde (n 29) 22–23. 31  ibid, 22–23. 32  ibid, 23–26. 33 R Emmers, ‘Securitization’ in A Collins (ed), Contemporary Security Studies (Oxford, Oxford University Press, 2007) 109, 112; S Marsh and W Rees, The European Union in the ­Security of Europe: Form Cold War to Terror War (Abingdon, Routledge, 2012) 1–2. 34 European Security Strategy (n 13) 2–10; NATO Summit Lisbon, 19–20 November 2010, Heads of State and Government, ‘Active Engagement and Modern Defence: Strategic C ­ oncept for the Defence and Security of the Members of the North Atlantic Treaty ­Organization’ (NATO Public Diplomacy Division, Brussels 2010) [hereinafter NATO ­Summit

74  Julia Schmidt cycle of a crisis, including conflict-prevention as well as post-conflict ­stabilisation. Whereas the EU and NATO prefer the term of crisis management, ­ECOWAS and the AU use the terminology of conflict prevention, ­management and resolution.35 Regional security governance has been divided by Emil Kirchner, James Sperling and Roberto Domínguez into four policies—the policies of ­assurance, prevention, protection and compellence.36 Policies of assurance include post-conflict reconstruction, such as policing and border control missions, as well as confidence building measures.37 Policies of prevention refer to a wide range of efforts aimed at the eradication of the root causes of conflict, such as democracy promotion and humanitarian aid.38 Policies of protection intend to protect society from threats coming from the outside, including terrorism, organised crime and environmental ­disasters.39 Policies of compellence are linked to the resolution of conflicts through the use of force and primarily refer to peacekeeping and peace enforcement measures.40 All of the mentioned security policies have been described as the outcome of functions and instruments provided for and used by regional security actors, which include institution building and conflict resolution on the one hand and persuasive as well as coercive measures on the other.41 The EU, ECOWAS, NATO and the AU have taken on some of these ­security functions that their members struggle to fulfil independently and have developed regional mechanisms of managing security.42 Whereas ECOWAS and the AU aim to do this by addressing intra-regional

Lisbon 2010] 6–13. ECOWAS considers ‘Peace, Security, and Good Governance’ as one of its six strategic pillars and also addresses certain threats and security issues in its conflict prevention framework. See ECOWAS, ‘Regional Strategic Plan (2011–2015): A Proactive Mechanism for Change’ (2010) 13 www.spu.ecowas.int/wp-content/uploads/2011/08/ REGIONAL-STRATEGIC-PLAN-RFV-in-English.pdf and Regulation MSC/REG.1/01/08, The ECOWAS Conflict Prevention Framework [hereinafter ECOWAS Conflict Prevention Framework] paras 66, 69. The AU identifies a detailed set of common security threats in its Solemn Declaration on a Common African Defence and Security Policy 6–10. 35  ECOWAS Conflict Prevention Framework (n 34); Article 2 Protocol Relating to the Establishment of the Peace and Security Council of the African Union; Assembly of the African Union, Report of the Peace and Security Council on its Activities and the States of Peace and Security in Africa, Assembly/Au/5(XXI), 26–27 May 2013 para 3. 36  EJ Kirchner and J Sperling, EU Security Governance (Manchester, Manchester University Press, 2007) 2, 15; Kirchner and Domínguez (n 14) 2, 8, 11–12. 37  Kirchner and Domínguez (n 14) 8, 11. 38  ibid, 8, 11. 39  ibid, 8, 11–12. 40  ibid, 8, 12. 41  ibid, 12. 42  The contribution of regional actors to the stability of their members and the efforts of some in directly addressing threats to peace and security has been recognised by the UN Secretary-General’s High-level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (2004) [hereinafter A More Secure World] para 271.

Regional Security and International Law 75 ­disputes,43 the EU intends to secure its citizens by addressing external conflicts with its crisis management operations.44 Although NATO has been designed as a collective defence organisation, it has expressed its intention to cover crisis management as a whole45 and has been engaged in peace-keeping operations outside its sphere of membership.46 In the following, emphasis will be put on hard security tasks and the policies of compellence and in particular on the use of military force by regional actors. The next section will take a closer look at the legal framework ­governing the actions of regional security providers. III.  REGIONAL SECURITY PROVIDERS AND THEIR PLACE WITHIN THE LEGAL FRAMEWORK OF THE UNITED NATIONS

Under the Covenant of the League of Nations, regional organisations have not been assigned with a specific role for securing the maintenance of peace.47 This has changed under the UN Charter, and regional ­organisations now have a more prominent role to play. Chapter VIII establishes their primary responsibility for the pacific settlement of local disputes that can pose a threat to international peace and security48 and integrates regional arrangements and agencies into the UN’s system of collective security. According to Article 53 (1) of the UN Charter, The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority.

By doing so, Chapter VIII has often been viewed as a compromise between a universal system of collective security on the one hand and a decentralised or regionalised security system on the other.49 Whether the UN ­system has moved away from the perception of regionalism as a ­competitor to universalism50 will be addressed in Section V. What constitutes a regional arrangement or a regional agency within the meaning of the UN Charter is not entirely clear, due to a lack of ­definitions provided by the UN Charter itself. The drafting history of the

43 Article 58 ECOWAS Treaty in conjunction with Article 3 Protocol Relating to the ­ echanism for Conflict Prevention, Management, Resolution, Peace-keeping and Security; M Article 4 AU Constitution. 44  Article 42(1) TEU. 45  NATO Summit Lisbon 2010 (n 34) 7–8. 46  See, eg the NATO-led Kosovo force or KFOR, based on UNSC Resolution 1244 (1999). 47  Article 21 Covenant of the League of Nations. 48  Articles 33, 52(2) UN Charter. 49  R Wolfrum, ‘Der Beitrag regionaler Abmachungen zur Friedenssicherung: ­Möglichkeiten und Grenzen’ (1993) 53 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 576, 577. 50 A Abass, Regional Organisations and the Development of Collective Security: Beyond Chapter VIII of the UN Charter (Oxford, Hart Publishing, 2004) 21, 22.

76  Julia Schmidt Charter suggests that both terms have been deliberately chosen to be wide in scope51 and it is sometimes debated whether there is any practical need at all to draw a distinction between agencies and arrangements.52 If such an attempt is made, however, then regional agencies are ascribed with a higher level of organisational structure. A non-universal international organisation that entails permanent institutions and that enjoys international legal personality is usually referred to as a regional agency, whereas an arrangement is said to lack these features.53 Political commitments can be sufficient and a legally binding founding treaty is not essential.54 In the following, reference will be made to regional organisations as referring to both agencies as well as to arrangements. What needs to be decided, however, is the type of international organisation that qualifies as being regional within the meaning of ­ ­Chapter VIII. Views on this matter are deeply divided55 and are influenced, not only by the definition and scope of the regional element of Chapter VIII, but also by the diverging views on the relationship between Chapters VI, VII and VIII of the UN Charter, as well as on the degree of autonomy regional organisations enjoy in the context of the use of force. Geographical proximity between the members of an international organisation is not always regarded to be essential for the determination of a regional organisation, as long as its members share at least some abstract values.56 In practice, however, it seems difficult to define the area of a region and of sub-regions without political bias.57 The criteria of shared values appear to be rather vague, too, unless these are identified and agreed upon by the states that want to be members of that region.58 The functions that have been assigned to regional organisations under Chapter VIII, however, suggest that there needs to be some ­geographical limit to the operating area of regional organisations when they are acting

51 UN Secretary-General, ‘A Regional-Global Security Partnership: Challenges and Opportunities’ (Report), 28 July 2006, A/61/204–S/2006/590 [hereinafter A Regional-Global Security Partnership] para 77. 52  Wolfrum (n 49) 577. 53 United Nations, Office of Legal Affairs, Codification Division, Handbook on the ­Peaceful Settlement of Disputes between States (OLA/COD/2394) (New York, United Nations ­Publication, 1992) para 232. 54  C Walter, ‘Security Council Control over Regional Action’ (1997) 1 Max Planck Yearbook of United Nations Law 131. 55  See Abass (n 50) 9–20. 56  See, eg Abass (n 50) 25; and Tom Farer for an opposing view. TJ Farer, ‘The Role of Regional Collective Security Arrangements’ in TG Weiss (ed), Collective Security in a Changing World: A World Peace Foundation Study (London, Lynne Rienner, 1993) 153, 162. 57 Chapter VIII of the UN Charter also extends to sub-regions. See, eg UN General ­Assembly, ‘2005 World Summit Outcome’, 24 October 2005, A/Res/60/1 para 170. 58  ND White, ‘The EU as a Regional Security Actor within the International Legal Order’ in M Trybus and ND White (eds), European Security Law (Oxford, Oxford University Press, 2007) 329, 332–33.

Regional Security and International Law 77 under Chapter VIII. After all, regional organisations have been assigned with the task of settling ‘local disputes’ peacefully.59 The purpose of this task is to solve a conflict, which is confined to a certain area, and to ­prevent it from spreading by using the regional organisation’s insight and ­closeness to the subject matter and its perceived legitimacy in order to ­prevent the need for an intervening third party.60 The perceived legitimacy of a regional organisation to settle local disputes builds on the identification of shared values and goals the members of this organisation aim to achieve through their membership. Therefore, enforcement action under Chapter VIII has to have the character of regional action.61 What constitutes regional action also has been interpreted differently. For Hans Kelsen, it is sufficient that the sphere of influence of a regional organisation is limited and determined in its founding treaty, but does not have to be restricted to internal activities.62 Rather, the reference in ­Article 53(2) UN Charter to regional action against any former enemy state would indicate the possibility of regional enforcement action outside its own membership.63 Although the role foreseen for regional ­organisations in the maintenance of international peace and security is only l­imited to ­matters that are ‘appropriate for regional action’, without explicitly l­inking their sphere of action to its members,64 such a wide interpretation of regional action might be difficult to reconcile with the above described traditional purpose and functions of regional organisations under Chapter VIII, which is to contribute to international security by addressing intra-regional disputes, in order to prevent the regional organisation becoming a source of threat and instability itself.65

59 

Article 52(2) and (3) UN Charter. Wolfrum (n 49) 577. 61  H Kelsen, ‘Is the North Atlantic Treaty a Regional Arrangement?’ (1951) 45 American Journal of International Law 163. 62  ibid, 163, 165. 63  ibid, 165. 64  Article 52(1) UN Charter. 65 Also restricting Chapter VIII to non-universal organisations that operate intra-­ regionally are E De Wet, ‘The Relationship between the Security Council and Regional Organizations during Enforcement Action under Chapter VII of the United Nations Charter’ (2002) 71 Nordic Journal of International Law 7; R Tavares, Regional Security: The Capacity of International Organizations (London, Routledge, 2010) 9; and United Nations University—­ Comparative Regional Integration Studies (UNU-CRIS), Project on Regional Security & Global G ­ overnance, R Tavares et al, ‘Capacity Survey: Regional and other Intergovernmental Organizations in the Maintenance of Peace and Security’ (2008) biblio.ugent.be/input/dow nload?func=downloadFile&recordOId=938841&fileOId=938848 [hereinafter UNU-CRIS] 17. On this topic, see also Z Deen-Racsmány, ‘A Redistribution of Authority between the UN and Regional Organizations in the Field of the Maintenance of Peace and Security?’ (2000) 13 ­Leiden Journal of International Law 297, 308, 309 and IF Dekker and EPJ Myjer, ‘Air Strikes on Bosnian Positions: Is NATO Also Legally the Proper Instrument of the UN?’ (1996) 9 ­Leiden Journal of International Law 411, 413. 60 

78  Julia Schmidt Due to the growing interconnectedness of threats in a globalised world, some regional actors have shifted their security focus to threats having their origin outside their region, in an attempt to stop external threats from becoming internal ones, and thereby intend to contribute to global security. The increased engagement and success of international ­organisations that fulfil crisis management tasks and act as peace-keepers in regional ­disputes outside their sphere of membership contributed to a broader understanding of Chapter VIII. The role of the EU in the ­peaceful ­settlement of disputes in its neighbourhood, especially, as well as its involvement in crisis management operations of a humanitarian ­character on the African continent, has been influential in its perception as a regional organisation within the meaning of Chapter VIII.66 A functional approach to the UN Charter, which acknowledges the ­contribution of regional actors to the maintenance of international peace and security, does not necessarily require the interpretation of regional organisations under Chapter VIII and in the context of the use of force to extend to organisations acting outside their area of membership. Instead, other Charter provisions could be used to govern their relationship with the UN. Regional actors that intend to use enforcement measures against a non-member can be authorised to do so by the UNSC under Chapter VII, according to Article 48(2) UN Charter. If the same organisation plans on using force intra-regionally, this organisation, too, would require UN authorisation, this time however within the framework of Chapter VIII and according to Article 53(1) UN Charter.67 This narrow approach to Chapter VIII could prevent Article 48(2) UN Charter from becoming an empty vessel and would be in line with the systematic relationship between the individual provisions entailed in ­ Chapter VIII. According to Article 52 UN Charter, regional organisations have been allocated with the primary responsibility of solving local ­disputes peacefully.68 Article 53 UN Charter turns to enforcement action by ‘such’ regional organisations and thereby indicates that regional ­organisations should not be interpreted differently within Chapter VIII— irrespective of whether they engage in peaceful or forceful dispute

66  S Blockmans, ‘EU Global Peace Diplomacy: Instruments to Support Status Processes’ in B Van Vooren, S Blockmans and J Wouters (eds), The EU’s Role in Global Governance: The Legal Dimension (Oxford, Oxford University Press, 2013) 110, 114; S Blockmans and RA Wessel, ‘The European Union and Peaceful Settlement of Disputes in its Neighbourhood: The ­Emergence of a New Regional Security Actor?’ in A Antoniadis, R Schütze and E Spaventa (eds), The European Union and Global Emergencies: A Law and Policy Analysis (Oxford, Hart Publishing, 2011) 73, 79–82; White (n 58) 332–35. 67  See in particular E De Wet (n 65) 10 and C Walter, ‘Regional Arrangements and the United Nations Charter’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford, Oxford University Press, 2012) 746, 751. 68  Article 52(2) UN Charter.

Regional Security and International Law 79 s­ ettlement mechanisms. Practical needs might speak in favour of limiting a regional organisation’s special responsibility in solving local disputes to intra-regional ones. If ‘local disputes’ were not limited to a regional organisation’s area of membership,69 but would refer to any dispute that is restricted to a certain space (which again could be defined in a narrow or in a broad sense), regional organisations would be asked to get involved in a huge amount of conflicts and crises all over the world. An attempt to limit this obligation to the organisation’s neighbourhood, in order to avoid spill-over effects of conflicts, or to limit this obligation to activities in any part of the world that are potentially capable of endangering the internal security of a region, such as terrorist activities, or civil wars that result in a high number of displaced persons and flows of refugees, might not be feasible in practice due to the interconnectedness of threats and the vagueness of some of the concepts used. Restricting the primary responsibility for the peaceful settlement of disputes, instead, to areas that are of a special interest to the region itself—perhaps because of a shared cultural, colonial or ideological past—would reintroduce criteria for the definition of a region that have been rejected above. If, however, regional organisations within the meaning of chapter VIII were restricted to organisations that operate within their area of membership, their primary responsibility for the peaceful settlement of disputes might be more easily attainable. Attempts to settle disputes between its own members amicably are encouraged by a deeper awareness of the negative impact an unresolved dispute could have on the functioning of the region as a whole. A narrow interpretation of Chapter VIII would not disregard the ­achievements of organisations, such as the EU, in the peaceful settlement of disputes on its doorstep, or in more distant parts of the world.70 Article 33 UN Charter, in combination with Article 52 UN Charter, ­ ­provides ­Member States of a region with the choice of peaceful means of settling disputes that are available in their regional forum.71 The resort to regional arrangements or agencies, however, is just one of the enumerated tools of peaceful dispute settlement techniques under C ­ hapter VI. International organisations are not prevented from offering such ­ ­mechanisms to actors outside their membership if the third party consents to it. In this ­scenario, the organisation could act as an independent negotiator or mediator, for example, and its action would also be covered by Article 33 UN Charter. 69 

Dekker and Myjer (n 65) 413. the achievements of the European Union, see, eg F Hoffmeister, ‘The European Union and the Peaceful Settlement of International Disputes’ (2012) Chinese Journal of ­International Law 77. 71 United Nations, Office of Legal Affairs, Codification Division, Handbook on the ­Peaceful Settlement of Disputes between States (OLA/COD/2394) (New York, United Nations ­Publication, 1992) para 237. 70 On

80  Julia Schmidt The suggested differentiated approach to international organisations, according to their sphere of action, would not lead to an unjust result, when comparing the obligations of regional organisations under ­Chapter VIII with the obligation of international organisations of a regional ­character, under Chapter VII. Although the reporting duty of regional organisations under Chapter VIII is not explicitly codified with regards to military enforcement action under Chapter VII, it also exists for measures based on Article 42, 48(2) UN Charter in practice.72 It has been suggested that this reporting obligation mirrors the UN’s responsibility to exercise overall authority and control over delegated enforcement action.73 Restricting Chapter VIII to organisations that act intra-regionally leads to the exclusion of collective defence organisations, such as NATO. It has often been stated that NATO’s refusal to declare itself as a regional organisation within the meaning of Chapter VIII would have been ­ ­politically motivated and was driven by the desire to escape the UNSC’s control.74 Under Article 54 UN Charter, the UNSC has to be kept fully informed, even of activities in contemplation, whereas Article 51 UN ­Charter only requests an immediate report of measures that have already been taken in the ­exercise of the right to individual or collective self-defence. The ­exclusion of collective defence organisations from Chapter VIII when they are acting out of area, however, would leave all international actors acting in self-defence—whether they are states, regional organisations or ­international organisations of a regional character—subject to the same reporting ­obligations as codified by Article 51 UN Charter.75 Some UN statements could support the differentiated approach to regional organisations and international organisations of a regional ­character that is proposed in this chapter. For example, the report of the UN Secretary-General on ‘A Regional-Global Security Partnership: ­Challenges and Opportunities’ mentions that other organisations, which do not ­consider themselves as falling under Chapter VIII, are not excluded from a partnership with the UN.76 Rather, Other provisions such as those of Chapters VI, VII and IX are applicable to these partners for the same role. So none is excluded, and each has a role to play within the partnership.77

72  ND White and Ö Ülgen, ‘The Security Council and the Decentralised Military Option: Constitutionality and Function’ (1997) XLIV Netherlands International Law Review 378, 410. 73  E De Wet, The Chapter VII Powers of the United Nations Security Council (Oxford, Hart Publishing, 2004) 272; D Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford, Clarendon Press, 1999) 249–50. 74  Dekker and Myjer (n 65) 414. 75  EW Beckett, The North Atlantic Treaty, the Brussels Treaty and the Charter of the United Nations (London, Steven & Sons Limited, 1950) 17–18. 76  A Regional-Global Security Partnership (n 51) paras 82, 84 77  A Regional-Global Security Partnership (n 51) para 82.

Regional Security and International Law 81 These statements have been primarily addressed to alliance organisations such as NATO, but they are broad enough to cover new emerging ­international actors such as the EU, which lacks the competence to use military enforcement measures against its Member States and, according to the definition proposed above, cannot qualify as a regional organisation within the meaning of Chapter VIII in the context of the use of force.78 The EU has only been equipped with the capacity to deploy military crisis management operations outside its territory.79 In contrast to the EU, the AU has declared itself to be a regional organisation80 and has also been recognised by the UN to fall within the scope of Chapter VIII.81 ECOWAS, too, considers its cooperation with the UN to be covered by Articles 52–54 UN Charter.82 The just mentioned regional security providers vary greatly in nature and in design. The aim of the previous part was to show that they try to achieve regional security in different ways—by addressing internal threats, or by stopping external threats from becoming internal ones. Some regional actors will be prepared and competent to do both. If a regional actor tries to contribute to international security by intra-regional action, either through peaceful83 or forceful means, then it qualifies as a ‘regional organisation’ under Chapter VIII. If the same regional actor addresses external threats before they can become a source of internal instability and is acting outside its sphere of membership, its peaceful or forceful action can be regulated by Chapters VI and VII. In this case, the regional actor could be referred to as an ‘international organisation of a regional ­character’. Thus, the same organisation can put on different hats when it is contributing to regional, and thereby international, security. Building on this, it could then be argued that a changed security environment makes it necessary to include regional actors into the system of the UN as a whole and not to limit their role to Chapter VIII. The next part will focus on the mechanisms set up by the EU, ECOWAS and the AU to govern regional security concerns in practice. 78 Suggesting that ‘the EU is not a traditional regional organisation in the sense of ­ hapter VIII’ is J Cloos, ‘EU-UN Cooperation in Crisis Management—Putting Effective C ­Multilateralism into Practice’ in J Wouters, F Hoffmeister and T Ruys (eds), The United Nations and the European Union: An Ever Stronger Partnership (The Hague, TMC Asser Press, 2006) 259, 265. 79 Article 42(1) TEU. See also The Protocol on Permanent Structured Cooperation in which a reference to Chapter VIII of the UN Charter is avoided. According to the Protocol, the High Contracting Parties recognise ‘that the United Nations Organisation may request the Union’s assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Charter’. Protocol (No 10) on permanent structured cooperation ­established by Article 42 of the Treaty on European Union [2012] OJ C326/255. 80  Article 17(2) Protocol Relating to the Establishment of the Peace and Security Council of the African Union [hereinafter PSC Protocol]. 81 UN Secretary-General, ‘Cooperation Between the United Nations and Regional and Other Organizations’ (Report), 9 August 2012, A/67/280-S/2012/614 paras 3 and 4–25. 82  Regulation MSC/REG.1/01/08, The ECOWAS Conflict Prevention Framework, para 40. 83  Article 52 in conjunction with Article 33 UN Charter.

82  Julia Schmidt IV.  MILITARY COOPERATION BETWEEN REGIONAL ACTORS AND THE UNITED NATIONS

Regional actors supply the UN with much needed military resources and assist it in maintaining and restoring international peace and ­security. According to the design of the UN Charter, the UNSC should have access to a standing UN army under its direct command and control. Until today, no Article 43 UN Charter agreement has been signed. Regional actors can step in to fill this void. The possibility of authorising regional organisations to use force intra-regionally has been explicitly codified in ­Article 53(1) UN Charter. Although its legal foundations are debated,84 the competence of the UNSC to authorise Member States, or to authorise an ­international organisation of a regional character itself to act outside its area of m ­ embership, has been recognised in practice.85 Regional actors offer the opportunity for decentralised enforcement action of a centralised decision of the UN. In recent years, some regional actors have developed specific capabilities and procedures, in order to assist the UN. The EU considers its crisis management operations as a way to support the UN in its efforts to promote international peace and ­security.86 As part of EU rapid response, the battlegroup-concept was ­developed.87 Battlegroups are composed of 1,500 troops and can be deployed for a period of up to 120 days within 10 days. They have been designed to ‘strengthen the EU’s ability to respond to possible UN requests’.88 If a rapid response to a crisis is needed, the EU has ­developed two models of deployment—the stand-by model and the bridging model. The stand-by model consists of an EU reserve in support of a UN ­mission.89 The bridging model is designed to give the UN time, either to organise a new operation, or to reorganise an existing one by deploying an

84 

See De Wet (n 73) 260–65 and Sarooshi (n 73) 16–19. See, eg UNSC Resolution 678 (29 November 1990), UN Doc S/RES/678 para 2 or UNSC Resolution 1244 (10 June 1999), UN Doc S/RES/1244 para 7; UNSC Resolution 1671 (25 April 2006), UN Doc S/RES/1671 paras 7–8. 86  European Council, ‘EU-UN Co-operation in Military Crisis Management ­ Operations: Elements of Implementation of the EU-UN Joint Declaration’, 17–18 June 2004 www.­ consilium.europa.eu/uedocs/cmsUpload/EU-UN%20co-operation%20in%20Military% 20Crisis%20Management%20Operations.pdf [hereinafter EU-UN Co-operation in Military Crisis Management Operations] para 7. Operation Artemis, Council Joint Action 2003/423/ CFSP on the European Union military operation in the Democratic Republic of Congo [2003] OJ L143/50, eg, has been conducted at the request of the United Nations. See Council of the European Union, ‘Joint Declaration on UN-EU Co-operation in Crisis Management’, ­Brussels, 19 September 2003, 12730/03, para 2. 87  Headline Goal 2010, approved by General Affairs and External Relations Council on 17 May 2004, endorsed by the European Council of 17 and 18 June 2004, para 4 [hereinafter Headline Goal 2010]. 88  ibid, para 4. 89  EU-UN Co-operation in Military Crisis Management Operations (n 86) para 13. 85 

Regional Security and International Law 83 autonomous EU mission.90 The EU’s operation EUFOR Tchad/RCA was conducted as a military bridging operation.91 The AU has contributed to international peace and security in Africa through a variety of operations and has also cooperated with the UN for that purpose. For example, the African Union Mission in Sudan (AMIS) was replaced by the African Union/UN Hybrid operation in Darfur (UNAMID).92 The AU has set up its own security structure to provide regional security, which includes the Peace and Security Council, a ­continental early warning system and an African Stand by Force (ASF).93 ­ECOWAS also actively engages with the UN. Senior members of staff from both organisations meet regularly to exchange ideas about how to further cooperation.94 ECOWAS introduced the ECOWAS Standby Force (ESF) with the objective to guarantee peace and security in situations of conflict and disaster through effective observation and monitoring, preventive deployment and humani­ tarian intervention, and to train and equip multi-purpose composite standby units made up of military and civilian components in Member States, within the framework of the African Standby Force Arrangement.95

The military intervention in Mali in 2013 can be used as a recent example of inter- and intra-regional efforts in providing security in the Sahel region within the framework of the UN. In March 2012, a military coup had ­ overthrown the democratically elected Government of Mali, in response to the latter’s inability to deal with the Tuareg rebels in the North of the country.96 In an attempt to restore the constitutional order ECOWAS, and later also the AU, adopted economic sanctions against the military junta.97 In April, Mali signed a framework agreement with ECOWAS about the development of a ‘road map for the restoration of the ­constitutional order’.98 The rebels have been accused of serious human rights violations against Mali soldiers and civilians99 and they have declared the independence of the North of Mali, which it is increasingly feared will become a new centre for terrorists associated with the Al Qaida

90 

ibid, para 9. Council Joint Action 2007/677/CFSP on the European Union military operation in the Republic of Chad and in the Central African Republic [2007] OJ L279/21, Article 1(1). 92  UNU-CRIS (n 65) 23–25. 93  Articles 2, 12, 13 PSC Protocol. 94  UNU-CRIS (n 65) 73. 95  ECOWAS Conflict Prevention Framework (n 34) para 89. 96  T Scheen, ‘Militärputsch gegen Präsident Touré’, Frankfurter Allgemeine Zeitung (22 March 2012) www.faz.net/aktuell/politik/ausland/mali-militaerputsch-gegen-­praesident-toure11693388.html. 97  UNSC Resolution 2056 (5 July 2012), UN Doc S/RES/2056 para 6. 98  UNSC Resolution 2071 (12 October 2012), UN Doc S/RES/2071 preamble. 99 ibid. 91 

84  Julia Schmidt ­network.100 ­Gradually, radical Islamists have taken over control from the Tuareg rebels in Timbuktu and Gao.101 In September 2012, the transitional authorities of Mali and ECOWAS addressed the Secretary-General and asked for a UNSC mandate regarding the deployment of a stabilisation force in Mali.102 In December 2012, the Security Council authorised the deployment of AFISMA, an African-led International Support Mission, to take all necessary means to support the ‘Malian authorities in their ­primary responsibility to protect the population’.103 In January 2013, after a request from the transitional authorities from Mali, France militarily intervened to end the armed attacks of terrorists and extremists against the Malian south.104 Although AFISMA was originally supposed to be deployed in September 2013, AFISMA forces started to arrive a few days after the French troops.105 In early 2013, the European Union launched a military mission to contribute to the training of Malian armed forces, in an attempt to support them in the fight against terrorists.106 In July 2013, the UN Multidimensional Integrated Stabilization Mission (MINUSMA) took over from AFISMA.107 V.  MULTILATERALISM AND ITS CHALLENGES FOR THE RELATIONSHIP BETWEEN THE UNITED NATIONS AND REGIONAL ACTORS

The military engagement of the African Union, ECOWAS and the EU in Mali can serve as one example of multilateral action within the framework of the UN. There appears to be no generally agreed definition of multilateralism.108 One essential element, however, seems to be the commitment of more than two actors to collective action under the framework of a more or less formalised regulating system to achieve certain

100 T Scheen, ‘In Timbuktu weht die schwarze Fahne’, Frankfurter Allgemeine Zeitung (7 April 2012) www.faz.net/aktuell/al-qaida-in-mali-in-timbuktu-weht-die-schwarze-fahne11710837.html. 101 ibid. 102  UNSC Resolution 2071 (2012) preamble. 103  UNSC Resolution 2085 (20 December 2012), UN Doc S/RES/2085 para 9d. 104  UNSC Resolution 2100 (25 April 2013), UN Doc S/RES/2100 preamble. For an assessment of France’s military intervention, see K Bannelier and T Christiakis, ‘Under the UNSC’s Watchful Eyes: Military Intervention by Invitation in the Malian Conflict’ (2013) 26 Leiden Journal of International Law 855. 105  Security Council Report, ‘February 2013 Monthly Forecast’ (31 January 2013). www. securitycouncilreport.org/monthly-forecast/2013-02/mali_4.php. 106 Council Joint Decision 2013/34/CFSP on a European Union military mission to ­contribute to the training of the Malian Armed Forces (EUTM Mali) [2013] OJ L14/19 Article 1. 107  UNSCR 2100 (2013) para 7. 108  Peterson et al (n 16) 2.

Regional Security and International Law 85 goals, such as security.109 Multilateralism can be studied from different ­perspectives. Through the lens of the UN, it examines the ways in which actors, such as regional organisations, are envisaged by the UN system itself to ­contribute to the maintenance and restoration of international peace and security. This top-down approach to the relationship between the UN and regional actors concentrates on the legal limits for regional action in the context of the use of force and focuses on the scope and functions of Chapters VII and VIII. When taking on the perspective of regional actors, such as the EU, multilateralism can be linked to this actors’ strategic approach in addressing global threats and problems.110 In this context, regional actors have to identify how they perceive their relationship with the UN (as well as with other regional actors) and decide to what extent they view themselves as autonomous legal systems. The next part will first take a closer look at the challenges created by multilateralism viewed from the UN. Particular emphasis will be given to some controversial practices of regional ­security providers who have engaged in the use of force without a prior and explicitly obtained UNSC mandate. The second section will turn to claims of autonomy put forward by other regional actors, such as the EU. A.  Multilateralism and the View from the UN The UN Charter provides the framework in which the autonomy of regional actors in the context of the use of force has to be assessed. The practice of some regional actors, such as NATO in Kosovo or ECOWAS in Liberia, has fuelled the discussion as to whether regional ­security ­providers need to be authorised by the UNSC to use force and, if a­ nswering this ­question in the affirmative, what qualities an authorisation needs to ­possess in order to be regarded as legal. i.  NATO and Kosovo In the later stages of the Kosovo crisis in the 1990s, the Security Council adopted Resolution 1199, which finally determined that ‘the deterioration of the situation in Kosovo’ was ‘a threat to peace and security in the

109 E Newman, A Crisis of Global Institutions?: Multilateralism and International Security (London, Routledge, 2007) 10. 110  KE Jørgensen, ‘A Multilateralist Role for the EU?’ in O Elgström and M Smith (eds), The European Union’s Roles in International Politics: Concepts and Analysis (London, Routledge, 2006) 30, 44.

86  Julia Schmidt region’.111 During the debate in the Security Council it became ­obvious that Russia was of the opinion that Resolution 1199 did not consider the use of force, despite its reference to Chapter VII,112 and that Russia would veto any draft resolution authorising all necessary means.113 In 1998, NATO Secretary-General Solana stated that NATO was prepared to threaten and to use force to end the humanitarian catastrophe in Kosovo, without another UNSC resolution.114 When violence started to increase again and the humanitarian situation worsened, NATO started a range of air strikes in March 1999.115 In the absence of an explicit UNSC resolution authorising the use of force, justification was sought in the doctrine of humanitarian ­intervention, but also in an implicit ex post authorisation through the UNSC.116 In June 1999, the UNSC adopted Resolution 1244, which established an international security presence, under the auspices of the UN, made up of states and relevant international organisations. For this ­purpose they were authorised to use ‘all necessary means’. As the use of ‘all necessary means’ is textually linked to the future tasks of the security presence, it is difficult to be convinced by an interpretation of Resolution 1244 as an ex post authorisation to use force. Although the UNSC appeared to approve of the results of the NATO air campaign, it might be necessary to distinguish between an approval of the results and an approval of the means.117 International organisations of a regional character, such as NATO, have to be explicitly authorised in advance by the UNSC before they can ­lawfully engage in the use of force under Chapter VII.118 The authorisation technique that has developed over time, to compensate for the missing standing UN force which would have been under the Security C ­ ouncil’s command and control, requires the Security Council to be in overall authority and control with regards to the actual exercise of delegated

111 

UNSC Resolution 1199 (23 September 1998), UN Doc S/RES/1199. Gazzini, ‘NATO Coercive Military Activities in the Yugoslav Crisis (1992–1999)’ (2001) 12 European Journal of International Law 391, 405. 113 B Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 European ­Journal of International Law 1, 7. 114  ibid, 7. 115  Gazzini (n 112) 407. 116  For a discussion see Simma (n 113) 10; N Blokker, ‘Is the Authorization Authorized? Powers and Practice of the UNSC to Authorize the Use of Force by “Coalitions of the Able and Willing”’ (2000) 11 European Journal of International Law 541, 546; V Gowlland-Debbas, ‘The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance’ (2000) 11 European Journal of International Law 361, 374; De Wet (n 73) 307. 117  N Krisch, ‘Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council’ (1999) 3 Max Planck Yearbook of United Nations Law 59, 85 and 86; see also ND White, ‘The Legality of Bombing in the Name of Humanity’ (2000) 5 Journal of Conflict and Security Law 27, 32. 118  Walter (n 54) 177. 112 T

Regional Security and International Law 87 enforcement powers.119 The Security Council should be able to ensure that the use of force is exercised in line with the purposes and principles of the UN Charter.120 The need for the UNSC to be in overall control of a military operation, and in particular its ability to start and terminate it, originates from the centralisation of the use of force under the present UN Charter system.121 ii.  ECOWAS and Liberia In Liberia, ECOWAS militarily intervened, without being explicitly authorised to use force by the UNSC, in order to end the human rights violations during the Civil War.122 Following the military intervention, the UNSC commended ‘ECOWAS for its efforts to restore peace, security and stability in Liberia’.123 ECOWAS’ initiative generated hardly any international opposition124 and has, therefore, been referred to as one of the few examples of uncontested implicit UNSC approval.125 It seems doubtful whether regional organisations that intend to use force intra-regionally, such as ECOWAS in Liberia, enjoy greater autonomy in the context of the use of force under Chapter VIII than international organisations, ad hoc coalitions of states or individual states would do under Chapter VII. The assessment of the autonomy of regional organisations in the context of the use of force has to start with the relationship between Chapter VII and Chapter VIII. Only if the latter is seen to be self-standing could it provide regional organisations (at least in theory) with the competence to determine a threat to the peace, breach of the peace, or act of aggression and could attribute them with the decision-making authority to resort to the use of force intra-regionally, without the involvement of the UNSC.126 However, it is more convincing to interpret ­Chapter VIII as being systematically linked to Chapter VII. Once the UNSC has followed the two-step procedure of Chapter VII, by declaring an Article 39 UN Charter situation and by adopting a resolution authorising the use of force, regional organisations may be utilised to implement this decision.127

119 

White and Ülgen (n 72) 385–87. Sarooshi (n 73) 35, 156. 121  De Wet (n 73) 294. 122  J Lobel and M Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime’ (1999) 93 American Journal of ­International Law 124, 132. 123  UNSC Resolution 788 (19 November 1992), UN Doc S/RES/788 para 1. 124 C Greenwood, ‘International Law and the NATO Intervention in Kosovo’ (2000) 49 International and Comparative Law Quarterly 926, 929. 125  Lobel and Ratner (n 122) 132. For a more critical view see De Wet (n 73) 299–301. 126  Abass (n 50) 53–54. 127  A Orakhelashvili, Collective Security (Oxford, Oxford University Press, 2011) 259–61. 120 

88  Julia Schmidt In fact, the wording of Article 53(1) UN Charter itself requires regional enforcement action to be authorised by the Security Council and to be under its ‘authority’. Thus, regional military measures under Chapter VIII, too, need to be explicitly and a priori authorised to be lawful. Therefore, regional organisations do not enjoy greater autonomy in the context of the use of force than other military actors. They are only able to decide autonomously in the context of the peaceful settlement of disputes under Chapter VI, in matters of collective self-defence and in the context of consensual peace-keeping missions, but not in the adoption of military enforcement measures.128 B.  Multilateralism and the View from Regional Actors Regional security providers often seem to avoid clear legal statements as to how they classify their relationship with the UN and whether they need UN authorisation to lawfully engage in the use of force. The North ­Atlantic Treaty does not regulate NATO’s relationship with UNSC ­resolutions, but it emphasises the commitment of its Member States to the principles and purposes of the UN Charter, including the Security Council’s primary responsibility for the maintenance of peace and security.129 ­ECOWAS, too, reaffirms its Member States’ commitment to the UN Charter130 and refers to the Charter as one, but not the only, normative standard for its engagement in conflict prevention—next to the Constitutive Act of the AU.131 Whether the UNSC enjoys not only the primary, but also the sole, ­authority to authorise the use of force is left unaddressed. The AU expressly codifies its right to intervene in one of its Member States, following a decision by its Assembly in the case of war crimes, crimes against humanity and genocide.132 Whether or not this statement can be interpreted as a declaration of autonomy in the context of the intraregional use of force and a rejection of the need for a prior and explicit UNSC authorisation can be debated. The Constitutive Act of the African Union identifies the encouragement of international cooperation as one of its objectives and aims to take due account of the UN Charter therein.133 One way of interpreting Article 4 (h) to be in line with the latter would be to read it as the creation of the internal competence of the AU to use force

128  White (n 58) 338, 344; ND White, ‘The Ties that Bind: The EU, the UN and International Law’ (2006) XXXVII Netherlands Yearbook of International Law 57, 94. 129  Articles 1, 7 North Atlantic Treaty. 130  Article 2 PSC Protocol. 131  ECOWAS Conflict Prevention Framework (n 34) para 40. 132  Article 4(h) Constitutive Act of the African Union [hereinafter AU Constitution]. 133  Article 3(e) AU Constitution.

Regional Security and International Law 89 against its Member States—a competence not all regional actors enjoy. In order to be lawful, a military intervention by the AU against one of its Member States would still need to be authorised by the UNSC in advance, either in accordance with the first or second sentence of Article 53(1), depending on whether the impetus for a military intervention stems from the UNSC or the AU itself. In political statements, the EU promotes an ‘international order based on effective multilateralism’ with the UN framework at the centre.134 ­Additionally, although primary law of the EU reveals its strong commitment to the principles of the UN Charter and international law,135 it ­nevertheless avoids a clear legal statement as to whether the EU is bound by the UN Charter itself. In 2008, the European Court of Justice added to this confusion in Kadi when it stressed the autonomy of the European legal order and confirmed its jurisdiction to review EU legislative acts giving effect to a UNSC resolution in the light of its internal system of fundamental rights.136 However, it seems doubtful whether Kadi intended to indicate that the European Union can exist outside the framework of the UN as an emerging international security provider. Rather Kadi might need to be interpreted as a product of its time and in light of several tensions ­underlying the multi-layered European legal system. In the still early fight against international terrorism, the UNSC adopted Resolution 1267 (1999), condemning the training and sheltering of ­terrorists on Afghan territory and providing for the freezing of funds and financial resources of persons and entities as designated by the ­Sanctions ­Committee.137 On several occasions, the UNSC adopted new resolutions in order to strengthen the flight ban and the freezing of funds. The EU reacted to all changes and adopted corresponding secondary legislation in its desire to implement the UN sanction regime against the Taliban and their supporters in the European legal order, without raising serious human rights concerns. Mr Kadi appeared on the list of persons suspected of supporting terrorism, which was annexed to Council Regulation No 881/ 2002.138 In reaction to the freezing of his funds and a travel ban,

134 

European Security Strategy (n 13) 9. Articles 3(5), 21(1), 42(1) TEU. 136 Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat ­International Foundation v Council and Commission [2008] ECR I-6351 paras 316, 317 ­[hereinafter Kadi Grand Chamber]. 137  For the facts of the Kadi case, see Case T-315/01 Yassin Abdullah Kadi v Council and ­Commission [2005] ECR II-3649 [hereinafter Kadi] paras 10–36. 138 Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific ­restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, OJ L139/9. 135 

90  Julia Schmidt Mr Kadi challenged the lawfulness of the Community regulation by alleging three breaches of human rights, namely the right to a fair hearing, the right to respect of property and the right to effective judicial review.139 When the Court was confronted with the question of whether it was competent to review secondary EU law implementing UNSC resolutions, in the light of its own human rights standards, it chose to safeguard the functioning of its own legal system and, in particular, its relationship with European Member States on the one hand and its relationship with the European Court of Human Rights on the other. In Kadi, the Court also left several questions about the precise relationship between the European legal order and UNSC resolutions unaddressed. The ECJ only offered a clear indication of the limit of the possible binding nature of UNSC ­resolutions, by stating that they could not enjoy primacy over primary EU law.140 The question of whether they enjoy primacy over secondary EU law was avoided. It seems possible that the European Courts will return to their UN-law friendly approach of the past. In Bosphorus141 and Ebony Maritime,142 two cases that concern the interpretation of EU instruments intended to give effect to UNSC resolutions establishing the comprehensive sanction regime directed against the former Yugoslavia, the Court held that the wording and purpose of UNSC resolutions would have to be kept in mind when interpreting secondary EU law.143 The real impact of Kadi could therefore be seen in the awareness it created for human rights concerns underlying the listing and de-listing procedure of targeted ­sanctions in the UN and European legal order. Viewed from this angle, Kadi may have been influential in encouraging the reform process of the de-listing procedure in both legal systems.144 The autonomy claims made by some regional actors challenge the ­universal security system provided by the UN, in the sense that they point towards the limits of this system. Especially in the case of the ­European Union, these claims have been influenced by the EU’s i­nternal system of human rights, which the EU also intends to use as guidelines in its external activities. By using its own human rights standard, the EU

139 

Kadi (n 137) para 59. Kadi Grand Chamber (n 136) para 308. 141  Case C-84/95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others, Ireland [1996] ECR I-3953 [hereinafter Bosphorus]. 142  Case C-177/95 Ebony Maritime SA and Loten Navigation Co. Ltd v Prefetto della Provincia di Brindisi and other [1997] ECR I-1111 [hereinafter Ebony Maritime]. 143  Bosphorus (n 141) para 14. Ebony Maritime (n 142) para 20. 144  See also A Posch, ‘The Kadi Case: Rethinking the Relationship between EU Law and International Law?’ (2009) 15 Columbia Journal of European Law Online 1, 5. On the progress made in the de-listing procedure, see D Cortright and E De Wet, ‘Human Rights Standards for Targeted Sanctions’ (2010) Sanctions and Security Research Program, Policy Brief SSRP 1001-01 www.fourthfreedomforum.org/wp-content/uploads/2011/04/Sanctions-andHuman-Rights.pdf. 140 

Regional Security and International Law 91 tries to e­ stablish its own legitimacy as an international security provider. Although these claims might highlight some shortcomings of the universal system, they also encourage debate and are influential in the dynamic interpretation of the UN legal order and international law. After all, the UN, like regional security providers, is faced with a c­ hanging security environment and needs to develop ways of addressing new threats. The attempts of regional actors to interpret UNSC statements in favour of implied ex post authorisations to use force, when they have not obtained an explicit a priori mandate, as well as the recent Mali conflict during which ECOWAS had requested UNSC authorisation in advance of ­AFISMA’s engagement, indicate that regional actors still aim to be part of the universal security system provided by the UN and that they draw from its legitimacy when they engage in military crisis management. VI. CONCLUSION

The importance and contribution of regional actors in providing regional, and thereby international security, has been acknowledged by the UN through the frequent use of the terminology of ‘partnership’.145 Regional security threats are not limited to threats having their origin within the region. They can also come from outside. Through measures against non-members, regional actors increasingly try to prevent external threats from becoming a trigger for internal insecurity. They thereby attempt to prevent their region from becoming a source of international instability itself. The growing interconnectedness of threats also contributed to a changed perception of collective self-defence, which moves away from the notion of defence as a response to military invasions towards a functional approach to crisis management, wherever such a crisis occurs—either inside or o ­ utside the region.146 A changed global security environment, therefore, supports the inclusion of regional actors into the system of the UN as a whole and not the limitation of their role to Chapter VIII and intra-regional action. This open approach to the UN Charter reflects the broad understanding of regional security that has been proposed in this chapter. Regional security is not only part of global security, but is also intrinsically tied to it. Increasingly, regional stability cannot be achieved by intra-regional

145 

A Regional-Global Security Partnership (n 51). ‘NATO Ten Years After: Learning the Lessons’ (2 September 2011) NATO Review www.nato.int/docu/review/2011/11-september/10-years-sept-11/EN/index.htm; Heads of State and Government Participating in the Meeting of the North Atlantic Council in Strasbourg/Kehl (4 April 2009) Declaration on Alliance Security, Press Release www.nato. int/cps/en/natolive/news_52838.htm?mode=pressrelease. 146 NATO,

92  Julia Schmidt action alone. If a regional security provider tries to contribute to international security through internal action, either through peaceful or forceful means, then it qualifies as a ‘regional organisation’ under Chapter VIII. If the same regional actor addresses external threats and is acting outside its sphere of membership, its peaceful or forceful action can be regulated by Chapter VI and VII. As far as the military is concerned, it does not seem to matter whether the measures of regional security providers fall within the scope of Chapter VIII or VII when they address regional threats. Apart from when they are acting in self-defence, they need to be authorised by the UNSC to use force. One problem that still has to be overcome, however, is the sometimes unclear allocation of roles and responsibilities between regional security providers and the UN.147 Regional security providers are not always willing and prepared to get involved in a regional conflict.148 When they decide to get engaged, however, regional actors can add value to the UN system.

147 

UNU-CRIS (n 65) 26. Hettne, ‘Europe: Paradigm and Paradox’ in Schulz; Söderbaum and Öjendal (n 15) 22, 36. 148  B

5 International Criminal Justice and Security OLYMPIA BEKOU*

I. INTRODUCTION

I

NTERNATIONAL CRIMINAL JUSTICE is inextricably linked with the notion of security. A number of international criminal justice ­institutions have been set up by the principal security organ of the United Nations, the Security Council, in response to and as a m ­ easure to tackle situations where the international peace and security has been disturbed. M ­ oreover, the jurisdiction of the International Criminal Court (ICC, the Court), the first permanent international criminal justice ­institution, can be both triggered and blocked by the Security Council. In addition, the Council may play a role in regards to cooperation. The interaction between international criminal justice institutions and security is further exemplified in the peace and justice debate, which is relevant in situations where the Security Council operates and in settings where international criminal tribunals would also typically engage. However, the interplay of s­ ecurity and international criminal justice is wider than the operation of the S ­ ecurity Council.1 This chapter will explore this interaction between the concept of international criminal justice and security. It will primarily discuss ­ ­institutional relationships, through an examination of selected international criminal tribunals and their interaction with the Security Council. *  I would like to thank Daley Birkett for his research assistance. All errors and omissions are mine alone. 1 See, eg Court of Justice of the Economic Community of Western African States ­(ECOWAS), Hissein Habré v Republic of Senegal, Judgment, Case No ECW/CCJ/APP/07/08, 18 November 2010, www.courtecowas.org/site2012/pdf_files/decisions/judgements/2010/ HISSEIN_HABRE_v_REPUBLIQUE_DU_SENEGAL.pdf. Indeed, the Extraordinary African Chambers were established by the Government of Senegal following the ruling by ECOWAS that international custom requires that the former should establish a special ad hoc tribunal of ­international character to prosecute Mr Habré rather than instituting proceedings in its national courts. The Security Council had no involvement in the establishment of this tribunal.

94  Olympia Bekou Furthermore, by focusing on the role played by international criminal justice in enhancing security, the tensions, successes, and drawbacks ­ ­arising from such interaction will be highlighted. Whilst it is not appropriate to examine the structure of the Security Council and its division of power in this chapter, to better understand the relationship between the Security Council and international criminal justice institutions, its role will be framed around the following three axes: (i) Security Council involvement in the creation or termination of some of the international criminal institutions, (ii) possibility of intervention in their operation, and (iii) enhancement of State cooperation. II.  PEACE V JUSTICE? OR PEACE THROUGH JUSTICE?

International criminal justice institutions do not operate in a vacuum— they operate alongside a host of local, regional and international actors, each often with overlapping, and sometimes even conflicting, objectives. Such institutions frequently function in situations of ongoing insecurity, instability—even outright conflict. The relationship between international criminal justice and security is, therefore, perhaps best shown through an examination of the ‘Peace and Justice’ debate. This has been further compounded by the movement of the UN towards the direction of justice.2 Over the years, the understanding of peace has also changed. The division of peace into negative, ie the absence of war, and positive peace, a more sophisticated notion of peace tackling underlying problems,3 is useful in the peace and justice discussion, as international criminal justice is mostly associated with the latter.4 Therefore, when balancing the equation between peace and justice, States must remain alert to the implications that their actions may have on the work of international criminal justice institutions, particularly in the context of peace negotiations. A major step in bridging the gap between peace and justice5 was the very creation—by resolutions under Chapter VII of the UN Charter—of

2 See N White, The United Nations System: Toward International Justice (Boulder, Lynne ­Rienner, 2002) 48–58. 3  On the notion of positive peace see, eg, ibid, 48–51. 4  See JN Clark, ‘From Negative to Positive Peace: The Case of Bosnia and Hercegovina’ (2009) 8 Journal of Human Rights 360–84. 5  The representative of Hungary noted in the discussion of UNSC Res 808: ‘The way the international community deals with questions relating to the events in the former Yugoslavia will leave a profound mark on the future of that part of Europe, and beyond. It will make either easier or more painful, or even impossible, the healing of the psychological wounds the conflict has inflicted upon peoples, who for centuries have lived together in harmony and good neighbourliness, regardless of what we may hear today from certain parties to

International Criminal Justice and Security 95 the International Criminal Tribunal for the former Yugoslavia in 1993 (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in 1994 (together, ad hoc tribunals) by the Security Council.6 As observed by Richard Goldstone, the ad hoc tribunals’ first Chief Prosecutor, the decision for their creation ‘was necessarily founded upon the recognition of a direct link between peace and justice’.7 At the time of their creation it was envisaged that the Tribunals’ life span would be linked to the return of peace.8 This direct link became more tenuous over time, as evidenced by their continued existence to date and in the resolutions outlining their completion strategy, where reference to their contribution to lasting peace and security is made only in the Preamble and not in any of the operative ­paragraphs.9 As regards the ICC, several references to peace and justice can be found in the preambles of the Rome Statute of the International Criminal Court (Rome Statute),10 as well as that of the Negotiated ­Relationship Agreement between the International Criminal Court and the United Nations (UN-ICC Agreement).11 Several justifications have been put forward in support of the proposition that justice leads to an enduring peace.12 First, criminal trials can

the conflict. We cannot forget that the peoples, the ethnic communities and the national minorities of Central and Eastern Europe are watching us and following our work with close attention’. (Provisional Verbatim Record of 22 February 1993, UN Doc S/PV.31758, 19–20.) Moreover, Slovenia maintained that ‘the establishment of such a tribunal is a necessary and very important step, given the fact that those responsible for such crimes would be judged by an impartial judicial body as well as the fact that it could also contribute positively to the finding of solutions for the restoration of peace in the above-mentioned regions’. (Letter from the Permanent Representative of Slovenia to the United Nations addressed to the SecretaryGeneral, UN Doc S/25652 (22 April 1993).) 6  See UNSC Res 827 (25 May 1993) UN Doc S/RES/827; UNSC Res 955 (8 November 1994) UN Doc S/RES/955. 7  R Goldstone, ‘Justice as a Tool for Peace-Making: Truth Commissions and International Criminal Tribunals’ (1995–96) 28 New York University Journal of International Law and Politics 485, 486. 8  Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc S/25704 (1993) para 28. 9 See UNSC Res 1503 (28 August 2003) UN Doc S/RES/1503 and UNSC Res 1534 (26 March 2004) UN Doc S/RES/1534. 10  See Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, preamble para 3. On the peace versus justice debate in the context of the ICC, see JN Clark, ‘Peace, Justice and the International Criminal Court: Limitations and Possibilities’ (2011) 9 Journal of International Criminal Justice 521. 11  See UNGA Res 58/874 (20 August 2004) UN Doc A/RES/58/874 for the draft text. The final text of the Agreement is available at www.icc-cpi.int/nr/rdonlyres/916fc6a2-78464177-a5ea-5aa9b6d1e96c/0/iccasp3res1_english.pdf. 12  For a critical view see WM Reisman, ‘Stopping Wars and Making Peace: Reflections on the Ideology and Practice of Conflict Termination in Contemporary World Politics’ (1998) 6 Tulane Journal of International & Comparative Law 5, 46: ‘The wars in former Yugoslavia ­provide acutely painful examples of the limited utility of war crimes tribunals for stopping wars and making peace’. cf DD Ntanda Nsereko, ‘The Role of the International Criminal Tribunals in the Promotion of Peace and Justice: The Case of the International Criminal

96  Olympia Bekou assist, particularly if regime change occurs, in purging threatening leaders and rehabilitating rogue States.13 Second, consistent with the objectives of international criminal justice, a key characteristic is the individualisation of guilt.14 The emphasis on individual guilt as opposed to an entire nation is important, ‘if there is to be any real hope of defusing ethnic tensions in th[e] region’.15 However, the problem with this approach is deciding where to draw the circle of guilt which, inevitably, results in selectivity.16 Third, criminal trials offer a forum for public and official acknowledgement of the victims, which, in turn, assists their healing process.17 This ­‘catharsis’18 is perhaps one of the most compelling justifications for j­ustice as part of a lasting peace. Fourth, holding trials helps to establish an ­accurate, if trialspecific, record of history.19 Fifth, the experience of domestic ­criminal law shows that criminal conduct is arguably better ­controlled through ­policing and able criminal justice.20 The same could also be applicable to situations of mass atrocity. Perhaps the most powerful argument in support of peace through ­justice is deterrence.21 Although neither the specific nor the general deterrent effect22 of international criminal justice institutions can be measured empirically,23 throughout the more than 20 year period during which such institutions have been operational, deterrence has continued to be put f­ orward as a key reason for their significance. Having explored some of the justifications behind the supposition that justice brings ­lasting peace, it has to be noted that the foregoing justifications are by no means exhaustive, nor can they be objectively verified by reference to hard ­ ­evidence in practice. Court’ (2008) 19 Criminal Law Forum 373; F Jessberger and J Geneuss, ‘The Many Faces of the International Criminal Court’ (2012) 10 Journal of International Criminal Justice 1081, 1091 (as regards the stigma attached to arrest warrants issued by the ICC); MC Nmaju, ‘The Role of Judicial Institutions in the Restoration of Post-Conflict Societies: The Cases of Rwanda and Sierra Leone’ (2011) 16 Journal of Conflict and Security Law 357. 13 G Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (New Jersey, Princeton University Press, 2000) 287–89; 295–96. 14  Goldstone (n 7) 488. 15  T Meron, ‘The Case for War Crimes Trials in Yugoslavia’ (1993) 72 Foreign Affairs 122, 134. For a critical view on the issue of individualisation of guilt, see J Alvarez, ‘Rush to ­Closure: Lessons of the Tadic Judgment’ (1998) 96 Michigan Law Review 2031, 2032–35; 2082–89. 16  Bass (n 13) 297. As regards to allegations of selective justice at the ICC, see Clark (n 10) 524–27. 17  See, eg, Goldstone (n 7) 489. 18 PR Williams and MP Scharf, Peace with Justice? War Crimes and Accountability in the ­former Yugoslavia (Washington DC, Rowman & Littlefield, 2002) 20–21. 19  Goldstone (n 7). 20  ibid, 490. 21 ibid. 22  P Akhavan, ‘Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’ (1998) 20 Human Rights Quarterly 737, 746. 23 See, eg, MC Bassiouni, Introduction to International Criminal Law (Leiden, Martinus Nijhoff, 2012) 1060. cf P Akhavan, ‘Beyond Impunity: Can International Criminal Justice ­Prevent Future Atrocities?’ (2001) 95 American Journal of International Law 7.

International Criminal Justice and Security 97 The timing of when justice efforts should occur is far more controversial. Whether justice for atrocities should form part of peace negotiations or should be delayed until peace has returned, has been particularly controversial. Whilst the notion of no peace without justice is certainly appealing, reconciling peace and justice is often problematic in practice.24 It has been argued that during complex peace negotiations, it might be necessary to sometimes delay justice for peace.25 The case of the former Yugoslavia offers an example of the interaction between peace and justice. Atypically, the establishment of the ICTY by the Security Council preceded the Dayton Peace Agreement and was therefore at the forefront of the peace negotiations. At the same time, persons indictable by the ICTY were also the key players in the negotiating process.26 It was soon realised that no viable peace could be achieved without their participation and, at least at that stage, peace seemed to be more important than justice.27 The binary of peace and justice is often seen through the lens of whether or not international criminal courts have been successful. For instance, it has been argued with regard to the ICTY that it had failed to bring peace on the ground because at least two of the most serious events in the Yugoslav conflict occurred even though the ICTY was operational.28 The Šrebreniča massacre and human rights abuses in Kosovo took place despite the operation of the Tribunal. This argument, although factually correct, should not be seen as evidence that the ICTY has failed to that end: the return of peace is a process and, arguably, a long one. Even incidents of the scale and intensity of the foregoing should not be regarded as proof that international criminal justice does not work. Regardless, it is difficult to measure the success or failure of the ad hoc tribunals in this area; their merits, from which their success can be ­ ­determined, must be viewed as a whole and not fragmented into the ­various aspects of their operation. Similarly, when it comes to ­assessing the contribution of the ICC to the restoration of peace, given that the Court has, at the time of writing, rendered three verdicts, namely in 24 See KM Clarke, ‘Kony 2012, the ICC, and the Problem with the Peace-and-Justice Divide’ (2012) 106 American Society of International Law Proceedings 309; R Cryer, ‘Prosecuting the Leaders: Promises, Politics and Practicalities’ (2009) 1 Gottingen Journal of ­International Law 45. See also, generally, L Keller, ‘Achieving Peace with Justice: The International ­Criminal Court and Ugandan Alternative Justice Mechanisms’ (2008) 23 Connecticut Journal of ­International Law 209; Clark (n 10) 522–29; 538–44. 25 See Anonymous, ‘Human Rights in Peace Negotiations’ (1996) 12 Human Rights ­Quarterly 249, 256–58. 26  And it would have been unrealistic to expect that they would agree to a treaty providing for their surrender to the Tribunal. 27 O Schuett, ‘The International War Crimes Tribunal for Former Yugoslavia and the ­Dayton Peace Agreement: Peace versus Justice?’ (1997) 4 International Peacekeeping 91, 101. 28 See, eg, D Orentlicher, ‘That Someone Guilty be Punished: The Impact of the ICTY in Bosnia’ (2008) Open Society Justice Initiative 26 www.opensocietyfoundations.org/sites/ default/files/that-someone-guilty-20100708.pdf.

98  Olympia Bekou Prosecutor v Thomas Lubanga Dyilo29 and Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui,30 it is arguably difficult to assess whether it has in fact ­facilitated peace in the situation countries.31 The link between peace and justice has also been affirmed in ­ongoing conflicts. In that respect, the situation of Ukraine and Syria merit some discussion. On 17 April 2014, Ukraine lodged a declaration accepting the jurisdiction of the Court over acts committed on its territory from 21 November 2013 to 22 February 2014 under Article 12(3) of the Rome ­Statute,32 and a preliminary examination was opened by the ICC ­Prosecutor.33 It may be that the Security Council had no involvement in the referral of this particular situation to the ICC. The voluntary d ­ eclaration however, signifies the hope that ICC involvement will act as a catalyst for the return of peace in this country. Perhaps more poignant is the situation in Syria. Proponents of peace and justice, consider a Syrian referral to the ICC to be a key aspect of the return to peace in that country. A referral of this situation to the Court by the Security Council under its Chapter VII has been advocated,34 but at the time of writing, has yet to materialise, despite the ongoing conflict.35 Be that as it may, and given that Syria is

29  Trial Chamber I convicted Mr Lubanga Dyilo of committing war crimes on 14 March 2012, sentencing him to 14 years’ imprisonment. See Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842 (14 March 2012); Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901 (10 July 2012). 30  Trial Chamber II, having earlier severed the charges, acquitted Mr Ngudjolo Chui on 18 December 2012. See Judgment pursuant to Article 74 of the Statute, ICC-01/04-02/12-3-tENG (18 December 2012). Mr Katanga was convicted of committing one count of crime against humanity and four counts of war crimes on 7 March 2014. See Jugement rendu en application de l’Article 74 du Statut, ICC-01/04-01/07-3436 (7 March 2014). 31  For a critical view, see CL Sriram, ‘Conflict Mediation and the ICC: Challenges and Options for Pursuing Peace with Justice at the Regional Level’ in K Ambos, J Large and M Wierda (eds), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development: The Nuremberg Declaration on Peace and Justice (New York, Springer, 2009) 303–19, 305. cf F Bensouda ‘International Justice and Diplomacy’ New York Times (New York, 19 March 2013) www.nytimes.com/2013/03/20/opinion/global/the-role-of-the-icc-ininternational-justice-and-diplomacy.html. 32  See Declaration on Recognition of the Jurisdiction of the Court (9 April 2014) www. icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/997/ declarationRecognitionJuristiction09-04-2014.pdf; Letter from the Ministry of Foreign Affairs (6 April 2014) www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/ Documents/997/UkraineMFAdocument16-04-2014.pdf. 33  See WWW.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/ pr999.aspx. 34  See, eg, A Jones, ‘Seeking International Criminal Justice in Syria’ (2013) 89 International Law Studies 802. 35  A number of States have endorsed the referral of the situation in Syria to the Court. See, eg, Letter from the Permanent Representative of Switzerland to the UN to the President of the Security Council (14 January 2013) www.news.admin.ch/NSBSubscriber/message/ attachments/29293.pdf. Sent by Switzerland on behalf of 58 States, including permanent members of the Security Council, France and the United Kingdom, the letter called for ­referral to the ICC ‘without exceptions and irrespective of the alleged perpetrators’.

International Criminal Justice and Security 99 not a State party to the Rome Statute, should a referral occur, due care should be taken not to replicate the weaknesses of previous referral resolutions, which shall be examined in the sections below. Overall, the relationship between peace and justice is not an easy one. Following mass atrocity, the return of positive peace takes time and is dependent on a great many factors. The engagement of international ­criminal justice institutions both as a means of restoring peace and in terms of delivering justice can assist in reaching that point more quickly and in a lasting manner. III.  THE SECURITY COUNCIL AND THE ICC: AN AWKWARD RELATIONSHIP?

As seen already, the relationship between international criminal justice and the UN system for the maintenance of international peace and security began with the creation of the ad hoc tribunals for the former Yugoslavia and Rwanda. However, given the imminent completion of their mandate, the focus of the remainder of this chapter rests on the development of this relationship after the establishment of the first permanent International Criminal Court with the adoption of the Rome Statute on 17 July 1998. The following section will therefore explore the evolving ways in which the Court and the Security Council cooperate inter se. The Rome Statute provides for ICC jurisdiction over four ‘core’ international crimes, namely genocide, crimes against humanity, war ­ crimes, and aggression—crimes which, according to the drafters, are so grave as to ‘threaten the peace, security and well-being of the world’.36 In order that the Court might consequently be best-placed to help bring an end to impunity for such crimes and to deter their future commission, the ­former was established in relationship with the UN system and cognisant of the Principles and Purposes of its Charter.37 Among these Purposes is the maintenance of international peace and security.38 The UN and the ICC are therefore expected to closely cooperate in order to mutually reinforce their shared goal of preventing the future commission of international crimes, which obstruct the maintenance of international peace, security, and, in turn, justice.39

36 

Rome Statute (n 10) preamble para 3. preamble paras 7, 9. See also, generally, ibid, Arts 2, 13, 16; UN-ICC Agreement (n 11). 38  See Charter of the United Nations (opened for signature 25 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) Art 1. 39 See, eg, RS Lee, ‘Introduction: The Rome Conference and its Contributions to ­International Law’ in RS Lee (ed) The International Criminal Court: The Making of the Rome Statute (Dordrecht, Kluwer, 1999) 1–39, 35–36. 37  ibid,

100  Olympia Bekou The Court is independent in the performance of its functions,40 but its relationship with the Security Council is somewhat complicated. The ­relevant provisions in the Rome Statute were notoriously difficult to ­negotiate41 and an acceptable solution was only reached at the end of the Rome Conference as part of the so-called ‘package deal’.42 Although the Council had no actual role in the establishment of the permanent ICC, it was made clear from the beginning that the former should play its part in the eventual operation of the Court. The ensuing role allocated to the Security Council vis-à-vis the Court is three-fold: dealing with ­aggression, referral and finally deferral of situations to the Court. The Security Council may also play an important role in the ICC cooperation regime, ­particularly in cases of enforcement of requests arising from referrals. The potential effects of the Security Council on State interaction with the ICC will now be examined as regards each of the foregoing functions. A.  The Security Council, the ICC, and the Crime of Aggression Turning to the first aspect of the Security Council’s relationship with the Court, the former has a role with regard to the crime of a­ ggression.43 Under Article 15bis of the Rome Statute, the Court will be able to e­ xercise 40  This independence is safeguarded in the Rome Statute. See Article 4, which refers to the Court as a whole, and Articles 40 and 42, which specifically mention the independence of the judges and the Prosecutor, respectively. Moreover, this independence is recognised by the United Nations in the UN-ICC Agreement (n 11). 41  See, eg, SA Williams and WA Schabas, ‘Article 13’ in O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Oxford, Hart Publishing, 2008) 563–74; M Bergsmo and J Pejić, ‘Article 16’ in Triffterer, 595–604; L Yee, ‘The International Criminal Court and the Security Council’ in Lee (n 39) 143–52; L Condorelli and S Villalpando, ‘The Relationship of the Court with the United Nations’ in A Cassese, P Gaeta and JRWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford, Oxford University Press, 2002) 219–34; Casesse et al, ‘Referral and Deferral by the Security Council’, ibid 627–56; WA Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010) 293–304; 325–34. 42  It is noted that the solution adopted does not resemble the original 1994 ILC Draft. See Draft Statute for an International Criminal Court, Report of the ILC on the work of its ­forty-sixth session (2 May–22 July 1994) UN Doc A/49/10, 29–161, legal.un.org/ilc/­ documentation/english/A_49_10.pdf (ILC Draft). 43  For an overview of the crime of aggression as agreed by the States Parties at ­Kampala, see D Scheffer, ‘The Complex Crime of Aggression under the Rome Statute’ (2010) Leiden Journal of International Law 897; RS Clark, ‘Amendments to the Rome Statute of the ­International Criminal Court Considered at the First Review Conference on the Court, Kampala, 31 May– 11 June 2010’ (2010) 2 Gottingen Journal of International Law 689; J Trahan, ‘The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference’ (2011) 11 International Criminal Law Review 49; M Politi, ‘The ICC and the Crime of ­Aggression: A Dream that Came Through and the Reality Ahead’ (2012) 10 Journal of International Criminal Justice 267; R Heinsch, ‘The Crime of Aggression After Kampala: ­Success or Burden for the Future?’ (2010) 2 Gottingen Journal of International Law 713.

International Criminal Justice and Security 101 j­urisdiction over the crime of aggression provided that a ­ number of ­procedural hurdles are met.44 That which is especially relevant to the ­present chapter, however, is the requirement under subsection 6 that, should the Prosecutor decide to investigate the alleged commission of the crime of aggression, the former must ascertain the position taken by the S ­ ecurity Council thereon. If the latter determines that an act of aggression has taken place, the Prosecutor may proceed; if not, ­however, the ­Prosecutor may ­proceed six months thereafter, but only with the ­authorisation of the ­Pre-Trial Chamber. In light thereof, the original proposal by the I­nternational Law Commission (ILC), according to which, prior to the commencement of any prosecution, the Security Council would have had to positively determine the commission of an act of aggression, has been dropped.45 However, in view of the inability of the Court to exercise j­urisdiction over the crime of aggression until ratification or acceptance by 30 States Parties to the Rome Statute and, in addition, no earlier than 1 January 2017, this chapter will focus on the role of the ­Security Council in referring situations to the Court, deferring situations under i­ nvestigation thereby, and in matters of cooperation. B. Referrals by the Security Council—Article 13(b) of the Rome Statute Security Council referrals pursuant to Article 13(b) of the Rome Statute fall within the so-called ‘trigger mechanisms’ of the Court’s jurisdiction. This particular aspect of the Rome Statute caused much controversy in n ­ egotiations prior to and during the Rome Conference.46 States’ views were divided: some consistently opposed any role for the S ­ ecurity ­Council,47 while others felt that such a role ought to be recognised.48 ­Several justifications may be put forward for the inclusion of referrals in the Rome Statute. It has been argued that referrals are necessary in order to ­acknowledge the proper role of the Security Council.49 In other words, because the S ­ ecurity Council is the principal organ of the UN entrusted with the maintenance of international peace and security, this

44 

See Rome Statute (n 10) Art 15bis. cf Rome Statute (n 10) Art 15ter. 46  See Williams and Schabas (n 41); Yee (n 41); Condorelli and Villalpando (n 41); Schabas (n 41). 47  Mainly India, supported by Mexico. See A/CONF.183/C.1/L.81, 15 July 1998. 48  Yee (n 41) 147. ‘At the Rome Conference, a clear majority of delegations supported the power of the Security Council to initiative proceedings of the Court’. 49  See, eg, P Kirsch, JT Holmes and M Johnson, ‘International Tribunals and Courts’ in D Malone (ed), The UN Security Council: From the Cold War to the 21st Century (Boulder, Lynne Rienner, 2004) 288. 45 

102  Olympia Bekou r­ esponsibility ought to be acknowledged by the ICC, which operates in situations where this peace and security have been disrupted. Moreover, it has been suggested that the Security Council, when referring a situation to the Court, is more likely to secure the necessary political support for the prosecution in ­question given that an indictment emanating therefrom carries more political weight than that arising from a State referral.50 This argument therefore bestows a ‘higher status’ upon Security Council referrals. Although this is not enshrined in the Rome Statute, in the r­eality of international politics it is likely that a Security Council referral will be of greater importance.51 Insofar as this assists in strengthening State ­compliance with the ICC regime, this is not necessarily deplorable. Referrals under Article 13(b) apply primarily to States which are ­members of the UN and which are also parties to the Rome Statute. In this case, of course, either another State, or the Prosecutor proprio motu is also able to initiate proceedings.52 However—for many—it is more ­controversial that the provision allowing for referrals by the Security Council may be applied in relation to States which are members of the UN but which are not States Parties to the Rome Statute. Accordingly, ­Security Council referrals assist in expanding access to the Court.53 Had the ­Security Council not been allowed to refer cases to the ICC, the Court would only have been able to be seized of jurisdiction through State ­referral or proprio motu action by the Prosecutor. Given the Court’s lack of universal jurisdiction,54 the fact that a Security Council referral does

50 See E Minogue, ‘Increasing the Effectiveness of the Security Council’s Chapter VII Authority in the Current Situations before the International Criminal Court’ (2008) 62 Vanderbilt Law Review 647, 673–75; GP Fletcher and JD Ohlin, ‘The ICC—Two Courts in One?’ (2006) 4 Journal of International Criminal Justice 428, 431–32. There is no guarantee, however, that when the Security Council has referred a situation to the ICC, it will support the Court regarding measures taken pursuant thereto. See, eg, L Oette, ‘Peace and Justice, or Neither? The Repercussions of the al-Bashir Case for International Criminal Justice in Africa and Beyond’ (2010) 8 Journal of International Criminal Justice 345, 358–59. 51  Along the same lines, India, in explaining its vote in the final session of the Plenary of the Rome Conference, made the following statement: ‘The power to refer is now unnecessary. The Security Council set up ad hoc tribunals because no judicial mechanism then existed to try the extraordinary crimes committed in the former Yugoslavia and in Rwanda. Now, however, the ICC would exist and the States Parties would have the right to refer cases to it. The Security Council does not need to refer cases, unless the right given to it is predicated on two assumptions. First, that the Council’s referral would be more binding on the Court than other referrals; this would clearly be an attempt to influence justice. Second, it would imply that some members of the Council do not plan to accede to the ICC, will not accept the obligations imposed by the Statute, but want the privilege to refer cases to it. This too is unacceptable’. Cited in M Bergsmo, ‘The Jurisdictional Regime of the International Criminal Court (Part II, Articles 11–19)’ (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 345, 353. 52  In accordance with Article 13(a) and 13(c) Rome Statute, respectively. 53  See, eg, Minogue (n 50) 649; Kirsch, Holmes and Johnson (n 49) 288. 54  Universal jurisdiction is absent from Article 12 of the Rome Statute as a basis for ICC jurisdiction. During the negotiations at the Rome Conference, it was suggested that the

International Criminal Justice and Security 103 not have to go through the jurisdictional hurdles under Article 12 of the Rome Statute, gives the Court fresh impetus to perform its functions. Although this was not discussed in the negotiation of the Rome Statute, the ­Security Council is able to refer to the ICC any situation relating to the core crimes within the Rome Statute—regardless of whether a State is party to the Statute or whether it has accepted the Court’s jurisdiction on an ad hoc basis. This has proved to be a welcome development for ­international criminal justice. A brief examination of the conditions that must be met in order that the Security Council might refer a situation to the ICC demonstrates that this procedure is equally welcome for the relationship between international criminal justice and the maintenance of peace and security. C.  Preconditions for Referring a Situation to the Court Turning now to the specifics of Article 13(b), the first observation is that the Security Council can only refer a ‘situation’ to the ICC. This term was the subject of much discussion. As early as the 1994 ILC Draft, it was noted that the Security Council ‘would not normally refer to the court a “case” in the sense of an allegation against named individuals’.55 The ILC members had suggested the term ‘matter’, which alluded to a situation to which Chapter VII of the UN Charter was applicable.56 In the 1995 and 1996 PrepComs, the options were still open and the terms ‘matters’, ‘cases’, and ‘situations’ were examined. The term ‘cases’ was eventually dropped before the Rome Conference.57 At the same time, ‘matters’ was thought to be too specific by a number of delegations, whereas the term ­‘situations’, too broad by the rest.58 The choice of the term ‘situation’ is in line with the language used generally in the Charter59 and in ­Chapter VII

Court should have universal jurisdiction for genocide, crimes against humanity and war crimes. However, this suggestion did not go very far. For an examination of States’ unwillingness to include universal jurisdiction in the Rome Statute resulting in the rejection of a German ­Proposal on the issue, see, generally, HP Kaul and C Kreß, ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises’ (1999) 2 Yearbook of International Humanitarian Law 143. See also O Bekou and R Cryer, ‘The ICC and ­Universal Jurisdiction: A Close Encounter?’ (2007) 56 International & Comparative Law ­Quarterly 49. 55 

See ILC Draft (n 42).

57 

Yee (n 41) 149.

56 ibid. 58 ibid.

59 Indeed, similar debates took place during negotiations regarding the wording of ­ rticle 34 of the UN Charter. See, generally, T Schweisfurth, ‘Article 34’ in B Simma, A D-E Khan, G Nolte and A Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012) 1097.

104  Olympia Bekou in ­particular, to which referral is directly linked. In addition, it is also found in ­Article 13(a) of the Rome Statute, which provides for State referrals. Once the Security Council has referred a situation to the Court’s ­Prosecutor, it cannot influence the conduct of individual criminal prosecutions that may arise as a result thereof.60 The Prosecutor is the one who will ‘individualise’ the case as such. Any other process would impact on the independence of the Court in the performance of its functions. Regardless, the Prosecutor enjoys prosecutorial discretion: in other words, it is for the Prosecutor to decide whether or not to initiate an investigation following a referral. Prosecutorial discretion is a fundamental aspect of the ICC regime.61 It is clear from Article 53 of the Rome Statute that the Prosecutor can, in accordance with the provisions thereof, opt to initiate an investigation or decide that there is not a sufficient basis to prosecute. Article 53 further provides for the opportunity for the Security Council to request the Pre-Trial Chamber to review the decision of the Prosecutor and to request that his or her decision be reconsidered. This is a significant provision, because it submits the decision of one person to a review by a body.62 The second condition provided under Article 13(b) of the Rome Statute is that, when referring a situation to the Court, the Security Council must be ‘acting under Chapter VII of the Charter of the United Nations’. As noted above, this chapter of the UN Charter concerns measures to maintain and restore international peace and security. The link between Chapter VII— and, in turn, the maintenance of international peace and security—and the Court, which aims to deliver international criminal justice, reveals that the drafters of the Rome Statute had in mind the link between peace and justice when drafting this provision. It can, moreover, be inferred from this intent that the Court represented—at least in the minds of the drafters of the Rome Statute—a concrete step towards restoring international peace and security. Theoretically, at least, the question arises as to whether the UN ­General Assembly is able to refer a case to the Court, acting under the ‘Uniting for

60  See, eg, SA Williams, ‘Article 11’ in Triffterer (n 41) 539–45. cf D Scheffer, ‘Staying the Course with the International Criminal Court (2001–02) 35 Cornell International Law Journal 47, 90. 61 See, generally, AM Danner, ‘Enhancing the Legitimacy and Accountability of ­Prosecutorial Discretion at the International Criminal Court’ (2003) 97 American Journal of International Law 510; MR Brubacher, ‘Prosecutorial Discretion within the International ­Criminal Court (2004) 2 Journal of International Criminal Justice 71. 62 For potential problems on this approach, see D Sarooshi, ‘The Peace and Justice ­Paradox: The International Criminal Court and the UN Security Council’ in D McGoldrick, P Rowe and E Donnelly (eds) The Permanent International Criminal Court: Legal and Policy Issues (Oxford, Hart Publishing, 2004) 99–100.

International Criminal Justice and Security 105 Peace’ resolution.63 There is no specific mention of this possibility in the Rome Statute, nor was it debated in the negotiations which ­preceded its adoption. Could it be argued that, failing to reach a decision, the power of the Security Council to refer situations to the Court is ­transferred to the General Assembly? Although extremely unlikely to occur in ­practice—and, indeed, this has not occurred in the first 10 years’ of the Court’s ­operation—it could be suggested that, since the power to deal with situations that threaten international peace and security is, exceptionally, granted to the General Assembly, the power to refer a situation to the Court would not contravene the aims of Article 13(b) of the Rome Statute.64 Indeed, given the persistent deadlock in the Security Council over, for example, the protracted armed conflict in Syria,65 a more robust role for the General Assembly might be welcome for the maintenance of international peace and security and, in turn, the delivery of justice for the alleged commission of core international crimes.66 Of the situations before the Court at the time of writing,67 two have been referred thereto by the Security Council acting under its Chapter VII ­powers, namely the Situation in Darfur, Sudan68 and the Situation in Libya.69 Following the referral of the Situation in Darfur and the decision by the Prosecutor to open an investigation, arrest warrants were issued for those individuals allegedly responsible for the commission of crimes under ICC jurisdiction, including against the President of Sudan, Omar al-Bashir.70 The Security Council has, however, been accused of neglecting its obligation to restore international peace and security by referring the

63  UNGA Res 377(V) (3 November 1950). The adoption of this resolution by the ­General Assembly allows it to take measures for the maintenance of international peace and ­security where there appears to be a threat to the peace, breach of the peace or act of aggression and in the event in which the Security Council is blocked due to lack of unanimity. For an ­analysis of the potential use of this resolution in modern international relations, see AJ Carswell, ‘Unblocking the Security Council: The Uniting for Peace Resolution’ (2013) 18 Journal of C­onflict and Security Law 453. 64  Although discussion was made in the ILC in order to include in the Rome Statute a provision which would enable the General Assembly to refer a situation to the Prosecutor independently and with the Security Council, this was dropped at an early stage. See ILC Draft (n 42) 44, para 5. 65 R Aloisi, ‘A Tale of Two Institutions: The United Nations Security Council and the ­International Criminal Court’ (2013) 13 International Criminal Law Review 147–68. 66  See Carswell (n 63); C Stahn, ‘How is the Water? Light and Shadow in the First Years of the ICC’ (2011) 22 Criminal Law Forum 175, 178. 67 See www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20 and%20cases.aspx. 68  See UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593. 69  See UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970. 70 For an analysis of immunities for State officials in light of this warrant, see, eg, D Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities’ (2009) 7 Journal of International Criminal Justice 333.

106  Olympia Bekou situation to the ICC, rather than taking effective measures to bring an end to the humanitarian crisis in Darfur.71 If, as discussed earlier in the present chapter, justice is able to bring peace to conflict situations, it is arguable that, by referring the situation to the Court, the Security Council was in fact taking affirmative action under Chapter VII of the Charter. The referral of the Situation in Libya to the Court by the Security ­Council led to the issuance of arrest warrants for then Libyan Head of State ­Muammar Gadaffi,72 Saif Al-Islam Gaddafi, and Abdullah Al-Senussi. At the time of writing, however, the latter two suspects have yet to be surrendered to the ICC, despite having been apprehended and placed in custody by Libyan authorities. Indeed the decisions by the ICC Pre-Trial Chamber as regards the admissibility of the cases against Mr Gaddafi and Mr Al-Senussi, respectively, raise interesting questions of complementarity beyond the scope of the present chapter.73 However, for the purposes of the present chapter, it is notable that State Parties to the Rome Statute are obligated to cooperate with the Court pursuant to the terms thereof; non-State Parties, however, other than the State subject to referral by S ­ ecurity Council resolution, ie Sudan and Libya, are not.74 Indeed, the absence of an obligation in resolution 1970 for non-State Parties to cooperate with the Court enabled Mauritania, a non-State Party to the Rome Statute, to freely arrest Mr Al-Senussi and surrender him to Libya. In the same way, Sudanese President Omar al-Bashir is able to visit non-States Parties to the Rome Statute because they are not subject to any obligation

71  See M Happold, ‘Darfur, the Security Council, and the International Criminal Court’ (2006) 55 International & Comparative Law Quarterly 226. For further criticism, see L Condorelli and A Ciampi, ‘Comments on the Security Council Referral of the Situation in Darfur to the ICC’ (2005) 3 Journal of International Criminal Justice 590 (for its reference to immunity for nationals from non-States Parties to the Rome Statute and to exemption agreements and for its failure to provide for compensation to victims). cf R Cryer, ‘Sudan, Resolution 1593, and International Criminal Justice’ (2006) 19 Leiden Journal of International Law 195 (recognising the selectivity and incompleteness of the resolution, concludes that it is generally positive and welcome). 72  The case against Muammar Gadaffi was terminated following his death. See Decision to Terminate the Case Against Muammar Mohammed Abu Minyar Gaddafi, ICC-01/11-01/11-28 (22 November 2011). 73 See Decision on the admissibility of the case against Abdullah Al Senussi, ICC-01/11-01/11 (11 October 2013); Decision on the admissibility of the case against Saif Al-Islam Gaddafi, ICC01/11-01/11 (31 May 2013); Judgment on the appeal of Mr Abdullah Al-Senussi against the ­decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’, ICC-01/11-01/11 (24 July 2014). For analysis of these issues, see, eg, C Stahn, ‘Libya, the International Criminal Court and Complementarity: A Test for “Shared Responsibility”’ (2012) 10 Journal of International Criminal Justice 325; F Mégret and M Giles Samson, ‘Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials’ (2013) 11 Journal of International Criminal Justice 571. 74  See, eg, J Trahan, ‘The Relationship between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices’ (2013) 24 Criminal Law Forum 417, 462–63.

International Criminal Justice and Security 107 to arrest him under the terms of resolution 1593. It has been suggested that the S­ecurity Council ought to strengthen the cooperation regime with the ICC by placing a positive obligation on all UN Member States to cooperate when referring a situation to the Court in future.75 D. Deferrals by the Security Council—Article 16 of the Rome Statute A rather more invasive role for the Security Council—and one which bears particular relevance to the relationship between international ­criminal ­justice and security—is provided in Article 16 of the Rome ­Statute, ­entitled ‘Deferral of investigation or prosecution’. Under this provision, the S ­ ecurity Council is empowered to delay the ICC’s handling of a p ­ articular case for a limited period of time, should the Security Council believe that action taken by the Court is likely to hamper its efforts to maintain international peace and security.76 As noted above, the presence of this provision in the Rome Statute caused much controversy during the Rome Conference and was the subject of lengthy negotiations.77 On the one hand, Article 16 further details the close link between collective s­ ecurity and international criminal justice but, on the other hand, it subjects the operation of the Court to the will of a political organ, which as noted above, is inherently subject to inaction when unable to reach agreement.78 Supporters of this divisive provision maintained throughout the negotiations that it would prevent the Court from interfering with the maintenance of international peace and security, which is the primary responsibility of the Security Council.79 Notwithstanding, there seems to be an oxymoron here: although the Security Council’s creation of the ad hoc tribunals seems to suggest that justice leads to peace—that is to say, positive peace—in the case of the ICC, it appears that, at least occasionally, peace and justice

75 

See ibid, 463–64. cf Cassese, who argues that the Council ‘may request the Prosecutor to defer his activity only if it explicitly decides that continuation of his investigation or prosecution may amount to a threat to the peace’. A Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections (1999) 10 European Journal of International Law 144, 163. 77  See P Kirsch and JT Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’ (1999) 93 American Journal of International Law 2. 78  India, in explaining its vote in the final session of the Rome Conference, observed that: ‘The power to block is in some ways even harder to understand or to accept. On the one hand, it is argued that the ICC is being set up to try crimes of the gravest magnitude. On the other, it is argued that the maintenance of international peace and security might require that those who have committed these crimes should be permitted to escape justice, if the Council so decrees. The moment this argument is conceded, the Conference accepts the proposition that justice could undermine international peace and security’. Cited in Bergsmo (n 51) 358. 79  Yee (n 41) 150. 76 

108  Olympia Bekou are mutually exclusive and, in that respect, the operation of the Court must temporarily be put on hold. The origins of Article 16 of the Rome Statute can be traced back to ­Article 23(3) of the ILC Draft. The latter, however, did not allow for the commencement of a prosecution in situations subject to Security Council action under Chapter VII of the UN Charter, unless the Council decided otherwise.80 This approach was eventually dropped during the negotiation process, giving more independence to the Court and to the States ­Parties to the Rome Statute. Had this provision been accepted, it would have been akin to the provision of Article 12 of the UN ­Charter. An equivalent ­provision to deferral is not found either in the case of the ad hoc ­tribunals, despite their creation by Security Council resolutions and where the ­inclusion of a similar provision could have perhaps been expected due to the fact that they were created on this basis. Despite the shift away from the ILC Draft following the so-called ‘Singapore ­Compromise’,81 it is ­ nevertheless notable for the relationship between international ­criminal justice and peace and security that a political organ—the ­Security ­Council—has the power to make political decisions and to thereafter impose them on the Court.82 In an attempt to minimise the impact of this controversial procedure, perhaps the most striking feature of the Rome Statute is that it places a legal framework on action taken by the Security Council. This ­framework was, moreover, formulated without the consent of all five permanent members thereof. The Rome Statute contains preconditions for the ­ exercise of Article 16, which potentially impose limits on action by the Council. In this sense, it is important for the interaction of State Parties with the ICC because, provided that these preconditions are accepted by the Council, their ­interaction with the Court is channelled through an agreed framework and State consent is accordingly less restricted by the Security ­Council than it could have been without the presence of these preconditions. However, it is important to emphasise that, in terms of United Nations law, Article 16 may be ignored by the Security Council, which is able to override the conditions laid down therein. Security Council ­resolutions

80 

See ILC Draft (n 42) Art 23(3). (n 41) 150. Singapore put forward a proposal in the August 1997 session of the Preparatory Committee, by which it reversed the process detailed in the ILC Draft, but it was not until support came in December 1997 from the United Kingdom that this proposal shaped Article 16 of the Rome Statute as finally agreed. 82  On the UN Security Council-ICC relationship, see V Gowlland-Debbas, ‘The Relationship between Political and Judicial Organs of International Organisations: The Role of the Security Council in the New International Criminal Court’ in L Boisson de Chazournes, C Romano and R Mackenzie (eds), International Organisations and International Dispute ­Settlement: Trends and Prospects (Ardsley NY, Transnational Publishers, 2002) 195, 212–17. 81 Yee

International Criminal Justice and Security 109 1422 and 1487 are examples thereof.83 Such resolutions, part of the US ­offensive against the Court, go beyond Article 16. Even though the ­language used therein purports to respect Article 16 of the Rome ­Statute, by referring, for instance, to Chapter VII of the UN Charter, and by ­complying with the 12-month period specified in Article 16, in essence, it completely d ­ isregards the provision. Article 16 was introduced in the Rome Statute to ensure that the Court does not, by its investigations or prosecutions, harm the Security Council’s efforts in restoring peace and security. For a referral to be made there is a clear prerequisite that such a situation exists. However, in the context of resolutions 1422 and 1487, there was no specific situation under examination by the Court ­hindering the ­Security C ­ ouncil in the performance of its mandate.84 Rather, the ­foregoing resolutions c­onstituted an unprecedented, wide-ranging and thoroughly unnecessary intervention in a purely consensual system, and were ­nothing less than an assault on the Court.85 In June 2004, resolution 1487 was not renewed, amidst concerns about the treatment of Iraqi ­prisoners in the Abu Ghraib prison in Baghdad, restoring some faith in the Security Council and its role in international criminal justice and allowing State Parties to the Court to continue to enjoy protection under the Rome Statute. This episode d ­ emonstrates the potential impact that the Security Council is able to have on the ability of the Court to distribute justice on the one hand and, arguably, the way in which the maintenance of ­international peace and security is prioritised at the expense of the ­dispense of justice by ­international ­criminal mechanisms on the other. More recently, both Kenya and the African Union have consistently ­pursued efforts to secure a deferral of the proceedings against Kenyatta

83  UNSC Res 1422 (12 July 2002) UN Doc S/RES/1422; UNSC Res 1487 (12 June 2003) UN Doc S/RES/1487. 84  Operative paragraph 1 of UNSC Res 1422 is particularly revealing: ‘Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise’. See also operative paragraph 1 of UNSC Res 1487, which repeats its counterpart in UNSC Res 1422 verbatim. 85 For an analysis of the wider issues surrounding UNSC Res 1422, see R Cryer and ND White, ‘The Security Council and the International Criminal Court: Who’s Feeling ­Threatened? (2002) 8 International Peacekeeping 141; C Stahn, ‘The Ambiguities of Security Council Resolution 1422’ (2002) 14 European Journal of International Law 85; S Zappalà, ‘The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UNSC ­Resolution 1422 (2002) and Article 98 Agreements’ (2003) 1 Journal of International Criminal Justice 114; M El Zeidy, ‘The United States Dropped the Atomic Bomb of Article 16 of the ICC S ­ tatute: Security Council Power of Deferrals and Resolution 1422’ (2002) 35 Vanderbilt Journal of ­Transnational Law 1503. UNSC Res 1422 also raises issues of collective security which are beyond the scope of this chapter.

110  Olympia Bekou and Ruto under Article 16 of the Statute. Since the establishment of the African Union (AU) Contact Point on the matter of Africa and the ICC,86 the AU and a number of its Member States have expended considerable diplomatic capital in order to lobby for an Article 16 deferral. Most notably, in November 2013, one week before the annual session of the Assembly of States Parties (ASP) was to specifically consider the issue of prosecuting serving heads of state, the Security Council was presented with a draft resolution to be adopted under Chapter VII to defer the ­proceedings against Ruto and Kenyatta for one year.87 While it was made clear by three of the permanent five members of the Council that this resolution would not be allowed to pass (resolutions requiring the affirmative vote of at least nine council members and no veto by a P5 member), the vote forced by Rwanda once again heightened the tension leading up to the 2013 ASP meeting a week later. With seven Council members voting in favour of the ­deferral (Azerbaijan, China, Morocco, Pakistan, Russia, Rwanda and Togo), the draft failed to meet the requisite number of votes needed to be adopted.88 However, notably, not a single state voted against the ­resolution, choosing instead to abstain.89 From a political perspective, the decision to abstain rather than to vote against the resolution may be seen as an attempt to mitigate the effect of the draft resolution upon relations between Kenya and the states opposed to a deferral. The statements in explanation of the vote provide some ­suggested consequences of the vote; the representative of ­Guatemala stated that the vote ‘had erected a “barrier of distrust”’ between the ­countries submitting the draft in full knowledge that it would not be adopted and those opposed to making a deferral.90 Had states voted against the r­esolution or a P5 Member exercised the veto—themselves knowing that was ­unnecessary given that there were already ­insufficient votes in favour of the deferral, it may have unnecessarily exacerbated the sense of ­division that appears to have taken hold. EU Member States which abstained explained that the draft resolution’s sponsors had failed to demonstrate that the ICC proceedings against the Kenyan leaders posed a threat to international peace and security—the requisite t­ hreshold for the exercise of the ­Council’s Chapter VII power,91 while France’s representative stated that the vote was inappropriate given the ongoing dialogue

86 

African Union Decision Ext/Assembly/AU/Dec.1 at para 10(iii). Security Council, ‘Security Council Resolution Seeking Deferral of Kenyan ­Leaders’ Trial Fails to Win Adoption, with 7 Voting in Favour, 8 Abstaining’, Press Release 15 ­November 2013 (SC/11176). 88 ibid. 89 The abstaining states were Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, United Kingdom and France. ibid. 90  UN Security Council Press Release (n 87). 91  ibid, Statement in explanation of the vote by the UK Representative. 87 UN

International Criminal Justice and Security 111 of the Council with African states, including those on the Council.92 In contrast Rwanda, speaking after the vote stated ‘let it be written in history that the Council failed Kenya and Africa on this issue’, while statements condemning the outcome were also made by the representative of Kenya, and the representative of Ethiopia in his country’s capacity as Chair of the African Union.93 E. Cooperation in the Field: The ICC and UN Peacekeeping Operations The Security Council is able to play a crucial role in the cooperation regime between the Court and (non-)States Parties to the Rome Statute.94 ­Moreover, cooperation between the UN and the ICC is mandated by the Negotiated Relationship Agreement concluded by the parties in 2004.95 Of the many forms of cooperation undertaken pursuant to this obligation, that which has particular relevance to the relationship between i­nternational criminal justice and security is the increasing collaboration between UN peacekeeping operations and the ICC in situation-States. In the early years of the Court’s operation, interaction with peacekeeping missions mainly took place through the Office of the Prosecutor; in fact, several Memoranda of Understanding (MoU) were concluded between the p ­ arties in order to facilitate better cooperation and to enable the Court to take advantage of the unique position of peacekeeping missions in situationStates.96 For example, in the Democratic Republic of the Congo (DRC),

92 

ibid, Statement in explanation of the vote by the French Representative. Statements in explanation of the vote by the Rwandan, Kenyan and Ethiopian Representatives. 94  The role of the Security Council is explicitly envisaged with regard to cooperation in Article 85(5)(b) of the Rome Statute. 95  UN-ICC Agreement (n 11) Art 3: ‘The United Nations and the Court agree that, with a view to facilitating the effective discharge of their respective responsibilities, they shall cooperate closely, whenever appropriate, with each other and consult each other on matters of mutual interest pursuant to the provisions of the present Agreement and in conformity with the respective provisions of the Charter and the Statute’. See also Art 18 as regards the obligation for the UN to enter into agreements with the Prosecutor to facilitate cooperation. 96  See, eg, Memorandum of Understanding between the United Nations and the International Criminal Court Concerning Cooperation between the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) and the International Criminal Court, ICC-01/04-01/06-1267-Anx2 (7 April 2008) www.icc-cpi.int/iccdocs/doc/ doc469628.pdf (MoU). The Court concluded a similar agreement with the UN Operation in Côte d’Ivoire (ONUCI) on 12 June 2013 and is now in the process of negotiating a comparable ­memorandum with the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA). See ‘Report of the Court on the status of ongoing cooperation between the International Criminal Court and the United Nations, including in the field’ ICC-ASP12/42 (14 October 2013) (Report on ICC-UN Cooperation). 93  ibid,

112  Olympia Bekou the UN p ­eacekeeping operation—the UN Organisation ­ Stabilisation ­Mission in the Democratic Republic of the Congo (MONUSCO), f­ ormerly MONUC—is particularly well-placed to provide the Court with ­certain measures of assistance, including, but not limited to, logistical support, security, and facilitating access to evidence, witnesses, and other ­documents and ­information relevant to ICC investigations. It is noted, however, that c­ ooperation between the Court and MONUSCO ­pursuant to the MoU thereto may take place only following a request by the Court and with prior ­written consent from the Government of the DRC.97 Cooperation between MONUSCO and the Court under the MoU is therefore both conditional and indirect and, as a result, inherently limited.98 However, with the adoption of resolution 2098 by the UN Security Council, there has been an apparent shift in the way in which MONUSCO is able to cooperate with the Court in practice.99 Resolution 2098, inter alia, authorised the formation of ‘Intervention Brigades’, empowered to provide more proactive assistance to the Court.100 Although still mandated to cooperate with the ICC by working with the Government of the DRC, it has been argued that MONUSCO is no longer prevented from entering into direct contact with the Court without having to seek an explicit authorisation from the Government.101 At the very least, resolution 2098 has strengthened the cooperation regime between MONUSCO, the ­Government of the DRC, and the ICC in the same way that Security Council resolution 1638,102 which mandated the Nations Mission in ­Liberia (UNMIL) to apprehend and detain former Liberian President Charles ­Taylor for the purpose of facilitating his transfer to the Special Court of Sierra Leone (SCSL), strengthened the cooperation regime as between the UN and that tribunal.103

97 

Ibid, MONUSCO MoU. a thorough analysis of the MoU, see M Melillo, ‘Cooperation between the UN Peacekeeping Operation and the ICC in the Democratic Republic of the Congo’ (2013) 11 Journal of International Criminal Justice 763–82. 99  See UNSC Res 2098 (28 March 2013) UN Doc S/RES/2098 para 12. In this resolution, ‘the Security Council authori[sed] MONUSCO, through its military component […] to take all necessary measures to […] [s]upport and work with the Government of the DRC to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through cooperation with […] the ICC’. [Emphasis added.] This mandate was extended until 31 March 2015 by UNSC Res 2147 (28 March 2014) UN Doc S/RES/2147. 100  UNSC Res 2098 (28 March 2013) UN Doc S/RES/2098, para 9. 101  Melillo (n 98) 780–81. Note, however, that ‘the main obligation to cooperate with the ICC lies with the DRC, having ratified the ICC Statute and referred this specific situation to the Court’. ibid, 781. 102  UNSC Res 1638 (11 November 2005) UN Doc S/RES/1638. 103  See M Frulli, ‘A Turning Point in International Efforts to Apprehend War C ­ riminals: The UN Mandates Taylor’s Arrest in Liberia’ (2006) 4 Journal of International Criminal J­ ustice 351. Similarly, the ability of IFOR/SFOR, the NATO-led multinational force in Bosnia and 98  For

International Criminal Justice and Security 113 In a similar vein, in April 2014, the Security Council adopted r­ esolution 2149, which established the UN Multidimensional Integrated ­Stabilization Mission in the Central African Republic (MINUSCA).104 Among the i­ nitial, ‘priority tasks’ of this peacekeeping mission is cooperation with the Court in order to apprehend those suspected of the ­commission of core international crimes.105 This mandate—­proactive from the outset—­ significantly strengthens the UN-ICC cooperation regime in the Central African Republic (CAR). That the Security ­Council chose to adopt similar wording in the foregoing resolution to that employed in resolution 2098 suggests an evolving pattern in the way in which the former e­ nvisages the fulfilment of its obligation to cooperate with the Court under the Rome Statute and the UN-ICC Agreement. Such a development is to be welcomed: the assistance that a 12,000-strong force created under UN auspices is able to provide in the CAR—a State Party to the Rome Statute that has long struggled with an increasingly worsening and complex security situation—cannot be underestimated.106 As noted by the Court in its Report to the Assembly of States Parties on the status of ongoing cooperation with the UN, including in the field,107 the ability to frame and carry out broader, more proactive mandates requires a willingness to cooperate not only on the part of the UN and the ICC but also from the situation-State. Though the Security Council explicitly stated in resolution 2098 that the creation of ‘Intervention Brigades’ in the DRC was ‘on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping’,108 it is hoped that by strengthening the mandate of MONUSCO in this way—namely by developing closer synergies between the Court, UN peacekeeping o ­ perations, and national legal actors—the former might be better equipped to avert the future commission of core international crimes, which not only

­ erzegovina, to execute arrest warrants strengthened the cooperation regime as between H the States in question and the ICTY. See, eg, P Gaeta, ‘Is NATO Authorized or Obliged to Arrest Persons Indicted by the International Criminal Tribunal for the Former Yugoslavia?’ (1998) 9 European Journal of International Law 174. 104 

UNSC Res 2149 (10 April 2014) UN Doc S/RES/2149. ibid, para 30(f)(i): ‘To support and work with the Transitional Authorities to arrest and bring to justice those responsible for war crimes and crimes against humanity in the [CAR], including through cooperation with States of the region and the ICC’. Note the similarities with UNSC Res 2098 (n 99) para 12. 106 See, eg, ICC Office of the Prosecutor, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, in relation to situation in Central African Republic’ (7 August 2013); ibid, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, in relation to the escalating violence in the Central African Republic’ (9 December 2013). 107  Report on ICC-UN Cooperation (n 96). 108  UNSC Res 2098 (n 99) para 9. 105 

114  Olympia Bekou obstruct the maintenance of international peace and security but also the delivery of justice. Indeed, as discussed above, although the possibility for ­overlap between peace and justice exists in situations where issues of security are present, broader mandates such as that in resolution 2098 reduce the scope for competition. IV. CONCLUSION

The interplay between international criminal justice and security ­covers a number of areas. The chapter has highlighted some aspects of this interaction. The Security Council is empowered to make important ­ ­decisions that affect the international community as a whole. The C ­ ouncil, through its function in the field of international criminal justice, intervenes, thereby affecting interaction between States and the institutions established to deliver such justice. However, this role differs amongst institutions: from the hegemony of the Security Council in relation to the ad hoc tribunals to the accommodation thereof in the establishment of the Rome Statute system of justice, the involvement of the Security Council in international criminal justice has diminished from a position of absolute control to that of a partnership with States and institutions. This evolution is welcome insofar as it avoids international criminal justice becoming too closely linked to security, thereby protecting the institutions established for the purposes of delivering justice from excessive and adverse politicisation. The notions of international criminal justice and security are, for ­better or worse, interrelated: the Court, responsible for, inter alia, delivering the former and the Security Council, tasked with primary responsibility for maintaining the latter, principally operate in conflict and post-conflict situations. It is hoped that these organs can, through ever closer cooperation, continue to offer reciprocal support in order to realise their—at least indirectly—shared objective of combating impunity for the c­ ommission of the four core crimes falling under the jurisdiction of the ICC—the most serious international crimes of concern to the international community as a whole—which, by their very nature, create, foster, and thrive on ­insecurity and thereby hamper efforts by the Security Council to maintain and restore peace.

6 Security and International Law: The ‘Responsibility to Protect’ ALEXANDRA BOHM*

I. INTRODUCTION

O

NE OF THE most significant areas of security and international law is that of threats to the security of individuals. As this book deals elsewhere with the concept of ‘human security’, this chapter is dedicated to one particular conception of how to address the threats to individual security posed by mass atrocity crimes—the doctrine of ‘Responsibility to Protect’ (RtP). RtP was born in 20011 with the publication of a report by the International Commission on Intervention and State Sovereignty (ICISS)2 aimed at being a comprehensive doctrine capable of overcoming the deadlock between state sovereignty/non-intervention and human rights, which had characterised the humanitarian intervention debate in previous decades, due to its broader understanding of security crises.3 RtP’s core idea is the primary responsibility of a state towards the security of its population and the secondary responsibility of the international community in this regard. The idea has undergone several ‘­evolutions’ from its promulgation in 2001, through the General

*  This chapter has benefitted from comments by Dr Garrett Brown and Dr Richard Collins, as well as discussions at the following conferences: ILA British Branch Annual Conference 2012 (University of Nottingham); Responsibility to Protect in Theory and in Practice 2013 (University of Ljubljana); Beyond the Responsibility to Protect: Towards Responsible Use of International Law 2013 (University of Hull). Parts of this chapter—especially Section III— draw upon A Bohm, ‘Responding to Crises: the Problematic Relationship between Security and Justice in the Responsibility to Protect’ (2013) 4 Global Policy 247. 1  The idea of sovereignty as responsibility towards a state’s own citizens was first introduced in 1996 in the context of refugees—see especially: F Deng et al, Sovereignty as Responsibility: Conflict Management in Africa (Washington DC, Brookings Institution Press, 1996). 2 ICISS, The Responsibility to Protect (Ottowa, International Development Research Centre, 2001). 3  For references to this ‘deadlock’ see, eg: K Annan, Millennium Development Report to the 55th Session of the UNGA (5 September 2000) UN Fact Sheet DP1/2083/Rev.1; ICISS (n 2) foreword vii.

116  Alexandra Bohm ­ ssembly’s adoption of parts of the ICISS report in its World Summit A Outcome Document in 2005,4 to the Secretary General’s Report on the implementation of the doctrine in 2009.5 These evolutions have demonstrated areas of clear consensus between states and also areas where issues are clearly unresolved and lacking international consensus on human protection. This chapter addresses some of these issues by exploring the role of the RtP doctrine in providing security to vulnerable individuals. It does so in the light of the book’s two main questions—whether international law can address the types of security risks that threaten our existence in the twenty-first century and where and how international law might fall short in meeting the problems that arise in situations of insecurity. To answer these questions, the chapter critically engages with RtP, examining how it constructs the nature of insecurity and what assumptions are made about the role of international law in providing security. ­Section II introduces the idea of ‘responsibility to protect’ and its development. Section III examines some key assumptions underpinning RtP. The first assumption is the very foundation of RtP—that the internal crises in which mass atrocity crimes occur are the key threat to individual security today. The second assumption is that because these crises are associated with weak, failing or non-democratic regimes, domestic governance reform is the most important crisis-prevention strategy. The third assumption is that, given that the fault lies with the government that has failed to protect its people, the international community’s role is to respond by rescuing those at risk, should prevention fail. Section IV argues that these assumptions provide an incomplete picture of the situations of insecurity in which mass atrocity crimes occur and, thus, give a faulty analysis of suitable prevention measures. It criticises RtP’s assumptions for neglecting more chronic socio-economic problems, related to violence and insecurity, and consequent mass abuses of civil and political rights. Related to this implicit decoupling of socio-economic from civil and political rights, this section also argues that RtP insufficiently addresses the role of the international community in actually contributing to the sorts of crises that RtP attempts to address. Section V considers the place of RtP in international law and relates arguments about RtP to those concerning international law’s ‘fitness for purpose’ in addressing security threats in the twenty-first century more generally. Some concluding thoughts are then offered.

4  UNGA, ‘World Summit Outcome Document’ UNGA Res 60/1 (24 October 2005) (Outcome Document). 5  B Ki-moon, ‘Implementing the Responsibility to Protect: Report of the Secretary General’ UNGA 63rd Session (12 January 2009) UN Doc A/63/677.

Security and International Law 117 II.  THE DEVELOPMENT OF THE ‘RESPONSIBILITY TO PROTECT’ DOCTRINE

RtP has been discussed widely following the ICISS report, including in the UN High Level Panel Report of 20046 and various more recent reports by the Secretary General. This section discusses the three most detailed iterations of the RtP concept in order to understand how it has developed and which of its concepts remain problematic: the ICISS report of 2001, the UN World Summit in 2005 and the Secretary General’s implementation report of 2009. A. The International Commission on Intervention and State Sovereignty 2001 The 2001 ICISS report was commissioned by the Canadian Government to find a way forward from the state sovereignty–human rights deadlock, which had characterised the earlier humanitarian intervention debate.7 Having met with a wide range of actors, including non-governmental organisations (NGOs), governments and civil society groups, the Commission produced a detailed report covering the changing international context of security threats; changes in the terms of the humanitarian intervention debate and the meaning of sovereignty; the three ‘pillars’ of responsibility (to prevent, to react and to rebuild); together with operational issues relating to military intervention, including the question of Security Council authority. Finally, the report ended with thoughts for the ‘way forward’ from the analysis therein to action in the future.8 The changing international context includes new security issues, such as the increase in intra-state conflicts frequently associated with weak states and frequently involving high civilian casualties.9 At the same time, the report comments that, since the end of World War II, international law has increasingly become concerned with protecting the individual through increasing numbers of human rights treaties (including the Genocide Convention and various more general human rights conventions).10 In this context, the report notes that a principle of intervention is emerging for human protection purposes—including military intervention in extreme cases of major harm to civilians.11 In light of this, the Commission­ 6  UN, ‘A More Secure World: Our Shared Responsibility’ Report of the High Level Panel on Threats, Challenges and Change (29 November 2004) UN Doc A/59/565. 7  ICISS (n 2) 2. 8  ICISS (n 2) 69. 9  See ICISS (n 2) 4. 10  ICISS (n 2) 6 para 1.25, 14. 11  ICISS (n 2) 16 para 2.25.

118  Alexandra Bohm r­ ecommended c­ hanging the terms of the debate from a ‘right to intervene’ to a ‘responsibility to protect’, focusing on the victims rather than the interveners and encompassing a broader responsibility than just that of military ­intervention.12 The core principle of the report is that Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unable or unwilling to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.13

The ICISS report did not receive an immediate response from the international community, but was debated four years later by the General Assembly as part of its World Summit. B.  The United Nations General Assembly World Summit 2005 In two paragraphs of its ‘Outcome Document’, the General Assembly endorsed the key principle of RtP in its 2005 World Summit.14 Paragraph 138 of the Outcome Document refers to states’ responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity, and encourages the international community to assist states in exercising this responsibility.15 Paragraph 139 acknowledges the responsibility of the international community to help protect populations against these crimes. It notes that this responsibility is to be carried out peacefully in accordance with Chapters VI and VIII of the UN Charter or, if necessary, by acting collectively through the Security Council and ­Chapter VII, on a case-by-case basis, where a state is ‘manifestly failing’ in its protective duty. It also recommends that the General Assembly continue to consider the responsibility to protect populations, ‘bearing in mind the principles of the Charter and international law’.16 Although this has been hailed as a revolutionary norm,17 the Outcome Document is a somewhat cautious approach to the detailed content of the full ICISS report, such as in its reference to the option of General Assembly-mandated action,18 or to the suggestion made by ‘a senior representative of one of the Permanent 12  ICISS (n 2) 17, para 2.29; G Evans, ‘Responsibility to Protect: An Idea whose Time has Come … and Gone?’ (2008) 22 International Relations 283. 13  ICISS (n 2) xi. 14  UNGA, Outcome Document (n 4). 15  UNGA, Outcome Document (n 4) para 138. 16  UNGA, Outcome Document (n 4) para 139. 17 See, eg, R Cooper and J Kohler, Responsibility to Protect: Global Moral Compact (­Basingstoke, Palgrave MacMillan, 2005); N Wheeler, ‘A Victory for Common Humanity? The Responsibility to Protect after the 2005 World Summit’ (2005) 2 Journal of International Law and International Relations 95, 97. 18  ICISS (n 2) 48 para 6.7; 53 paras 6.29–6.30.

Security and International Law 119 Five countries’ that the Security Council’s ‘P5’ might refrain from using their veto power.19 Nevertheless, it seems that the idea of both states and the international community having a responsibility towards individuals at risk from mass atrocities has been accepted by the General Assembly, which instructed Secretary General Ban Ki-moon to continue to report on the matter. C.  Implementing the Responsibility to Protect, 2009 One of the results of the General Assembly’s request to the Secretary General was the report ‘Implementing the Responsibility to Protect’, produced in 2009.20 The report suggests a three-pillar strategy for implementing the responsibility to protect (different from the pillars in the 2001 report of prevention, reaction and rebuilding). These are: the state’s responsibility to protect (pillar 1); the international community’s responsibility to assist, especially with capacity-building (pillar 2); and the need for a timely and decisive response to a crisis (pillar 3).21 In relation to these pillars, the report suggests that RtP is about strengthening sovereignty through international assistance, rather than weakening it through intervention (coercive action is mentioned only briefly when Ki-moon encourages the P5 not to use their veto in RtP situations).22 Prevention, through pillars 1 and 2, is viewed by the report to be critical.23 Nevertheless, the 2009 report does deal with the issue of intervention and, in doing so, seems to be at odds with the 2001 ICISS report’s understanding of sequencing, which uses ‘just war’ criteria to guide the decision on when military intervention might be appropriate.24 In contrast to ICISS’ endorsement of the need for military intervention to be a last resort, Ki-moon’s report argues that there is no need for a chronological sequencing of the different possible RtP responses and that the UN should not prize procedure over results.25 Thus, at times, the Secretary General’s 2009 report appears more expansive than the 2001 ICISS report on the use of force, at other times its focus is less on military intervention.

19 

ICISS (n 2) 51 para 6.21. Ki-moon (n 5). 21 Ki-moon (n 5) 2. Pillar 2 has also been understood more in terms of rebuilding— see A Nollkaemper and J Hoffmann, Responsibility to Protect: From Principle to Practice (­Amsterdam, Pallas, 2012) 15. 22  Ki-moon (n 5) 27 para 61. 23  Ki-moon (n 5) 9 para 11b. 24  ICISS (n 2) 32 para 4.16; 36 paras 4.37, 4.38. 25  ICISS (n 2) 22; Ki-moon (n 5) 9 para 12, 22 para 50. The ICISS does recognise the difficulty of the ‘last resort’ concept, but nevertheless emphasises the need for caution before military intervention. 20 

120  Alexandra Bohm D.  RtP Now From these documents, key unresolved areas of RtP can be seen to centre on the need for a chronological sequence of actions before military intervention is used as a last resort and on the use of the veto by the P5 members of the Security Council. These points will be returned to later, when considering the issue of military intervention and the relationship of RtP with international law. The point to be made now is that, notwithstanding these unresolved issues, it is claimed that RtP’s supporters ‘have won the battle of ideas’.26 Certainly the General Assembly has continued to debate the matter after the World Summit and encouraged the Secretary General to continue to report back on relevant issues, including reports on ‘early warning and assessment’27 and ‘a timely and decisive response’.28 Scholars have also noted that RtP has been hailed as coming of age in recent years.29 Others have praised it as being a ‘crucial concept’,30 ‘the most dramatic normative development of our time’31 and a valuable tool in raising awareness of our collective responsibility to protect individuals from certain types of insecurity and violence.32 With recent references to RtP in Security Council resolutions in relation to the situation in Libya,33 it appears that the international community has now largely accepted the overall concept of RtP, if not all of its details and operational issues. The next section examines the provisions of RtP more closely, identifying what assumptions RtP makes about how situations of insecurity arise and how they are best dealt with, in particular the roles played by the ‘unable or unwilling’ irresponsible state and by the ‘international community’ of responsible states.

26  So claims Simon Adams (the Executive Director of the Global Centre for the Responsibility to Protect, a major RtP NGO), see S Adams, ‘Responsibility to Protect’ speech to opening plenary session of the Responsibility to Protect in Theory and in Practice Conference (Ljubljana, 11–12 April 2013). 27  B Ki-moon, ‘Early Warning, Assessment and the Responsibility to Protect’ (14 July 2010) UN Doc A/64/864. 28  B Ki-moon, ‘Responsibility to Protect: Timely and Decisive Response’ (25 July 2012) UN Doc A/66/874-S/2012/578. 29 See, eg A Orford, ‘Moral Internationalism and the Responsibility to Protect’ (2013) 24 European Journal of International Law 83. 30  N Wheeler and F Egerton, ‘The Responsibility to Protect: “Precious Commitment” or a Promise Unfulfilled?’ (2009) 1 Global Responsibility to Protect 114. 31  R Thakur and T Weiss, ‘R2P: From Idea to Norm—and Action?’ (2009) 1 Global Responsibility to Protect 22. 32 See, eg R Cohen, ‘The Responsibility to Protect: Human Rights and Humanitarian Dimensions’ Harvard Human Rights Journal Annual Symposium (20 February 2009); Adams (n 26). 33 See, eg UNSC Res 1973 (2011) UN Doc S/RES/1973. Other situations have also ­merited a reference to RtP, such as Syria—see, eg UNSC Res 2042 (14 April 2012) UN Doc S/RES/2042; UNGA Res A/HRC/RES/S-16/1; UNGA Res A/RES/66/176; UNGA Res A/RES/66/253, all urging the Syrian Government to protect its population.

Security and International Law 121 III.  THE CONCEPT OF ‘(IN)SECURITY’ IN THE RESPONSIBILITY TO PROTECT

Quite clearly, RtP is designed to address situations in which civilians suffer grave harm at the hands, or through the neglect, of their government that has failed in its primary responsibility towards its population. The 2001 report refers to this failure as the state having the primary responsibility and being unable or unwilling to fulfil it.34 The 2005 Outcome Document refers to the state’s ‘manifest failure’ to protect its population.35 The ICISS report notes that millions are at risk of atrocities and RtP is designed to deliver ‘practical protection for ordinary people, at risk of their lives, because their states are unwilling or unable to protect them’.36 This role of the state towards its own citizens is reflected in pillar 1 of the 2009 report, which notes that ‘it is the enduring responsibility of the State to protect its populations … from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement’.37 RtP is thus designed to be a narrow doctrine, addressing only these mass atrocity crimes and the local government’s role in carrying them out or in failing to prevent them.38 The doctrine is also designed to be ‘deep’ because, although the focus of RtP claims to be on prevention, flexible responses to crises also involve a ‘wide array of protection and prevention instruments’ from Chapters VI, VII and VIII of the Charter.39 RtP’s definition of insecurity relates specifically to threats from (or failures of) the citizens’ own government in relation to the civil and political rights of the state’s own citizens (limited to the mass atrocity crimes of genocide, war crimes, crimes against humanity and ethnic cleansing). Again, clearly, the very existence of the doctrine assumes that something can be done about mass atrocity crimes specifically, with RtP specifying that it is Chapter VI, VII and VIII measures that are appropriate. This is discussed further in the next subsection on the causes of crises. A.  The Cause of Threats to Individual Security Perhaps unsurprisingly for a report that deals with grave civil and political rights abuses, the 2001 ICISS report relates the primary causes of conflicts or state collapse to failures in domestic governance—in particular, 34 

ICISS (n 2) foreword viii. UNGA, Outcome Document (n 4) para 139. 36  ICISS (n 2) 11 para 2.1. 37  Ki-moon (n 5) 8 para 11.a. 38  Ki-moon (n 5) 8 para 10.b. 39 Ki-moon (n 5) 8 para 10.c; A Dieng, Secretary General’s Special Representative for ­Genocide, Opening Speech to Responsibility to Protect in Theory and in Practice Conference (Ljubljana, 11–12 April 2013). 35 

122  Alexandra Bohm commenting that a ‘firm national commitment to ensuring fair treatment and fair opportunities for all citizens provides a solid basis for conflict prevention’.40 The 2009 report comments that populations will be at risk if ‘national political leadership is weak, divided or uncertain about how to proceed’ (for example, against rebels).41 It also deplores the lack of education and training on human rights in states at risk from RtP crimes.42 Mass atrocity crimes are therefore taken to be caused by the government responsible for the civil and political rights of its citizens.43 Mass atrocities being the fault of the government, RtP then considers the role of the international community in response to national governance failures. It is to this that the next section turns. B.  The International Community’s Role in Enabling Security i.  Prevention and Assistance The international community’s secondary responsibility to protect populations at risk from mass atrocity crimes involves helping states prevent crimes on their territory and responding to the commission of such crimes should preventive efforts fail. RtP recommends that the international community help local efforts to identify triggers of conflict44 and support local human rights and good governance initiatives45 to strengthen national governance. The international community’s assistance to states should be through diplomatic encouragement, human rights training and other governance capacity-building assistance,46 by UN Special Advisors and the Bretton Woods institutions,47 or through rule of law and other human rights issues being addressed in existing aid programmes.48 ii.  Reaction and Response If the international community’s preventive efforts fail and a crisis develops, the international community must then exercise its responsibility to react. This responsibility can be fulfilled using economic, political and legal, as well as military, means.49 ICISS acknowledges that sanctions can 40 

ICISS (n 2) 19 para 3.2. Ki-moon (n 5) 15 para 29. 42  Ki-moon (n 5) 16 para 33. 43  Ki-moon (n 5) 12; ICISS (n 2) 11, 19. 44  ICISS (n 2) 19 para 3.4. 45  ICISS (n 2) 19 para 3.3. 46  Ki-moon (n 5) 15 para 29–30; 20 para 44. 47  Ki-moon (n 5) 15 para 30. 48  ICISS (n 2) 27 para 3.41; Ki-moon (n 5) 21 para 47. 49  ICISS (n 2) 19. 41 

Security and International Law 123 be a blunt instrument and, as such, it may be necessary to consider military action.50 ICISS devotes significant space to endorsing ‘just war’ criteria to assess the legitimacy of a military response.51 The 2009 report refers to the broad range of tools available under the Security Council’s Chapter VI, VII and VIII powers, as well as the role of the General Assembly,52 diplomatic sanctions and arms control.53 The report notes, however, that given the widely different circumstances in which mass atrocity crimes occur, ‘there is no room for a rigidly sequenced strategy or for tightly defined ‘triggers’ for action’.54 A significant role of the international community is therefore envisaged by RtP, both in helping states improve weak domestic governance for conflict prevention and in responding to domestic failures with a variety of measures. RtP’s key assumptions about threats to security, outlined above, focus on the state-citizen relationship and the national government’s duty not to abuse its citizens’ civil and political rights. Adhering to liberal scholar Fernando Teson’s view that ‘a major purpose of states and governments is to protect and secure human rights’, RtP envisages a cosmopolitan role for the international community whose human rights obligations to individuals everywhere can require it to rescue individuals from gross human rights abuses55 and to encourage weak national governments not to abuse their populations in the first place. The next section goes on to demonstrate that RtP contains an impoverished conception of the role of the international community in the security of individuals in other states and, therefore, it cannot successfully address insecurity and violence. IV.  SECURITY AND RESPONSIBILITY: AN ALTERNATIVE CONCEPTION

This section will address RtP’s construction of the nature of security threats by suggesting an alternative understanding of these threats. It critiques the very need for a doctrine focused on mass atrocity crimes because such a doctrine inevitably assumes that the ‘international community’ is wellplaced to rescue people from this particular type of insecurity, rather than having a role in creating systemic causes of insecurity. The alternative conception of insecurity offered below links socio-economic development to

50 

ICISS (n 2) 29. ICISS (n 2) 32–37 para 4.18–4.43. 52  Ki-moon (n 2) 8–9 para 11c; 22 para 49. 53  Ki-moon (n 2) 25 paras 57, 58. 54  Ki-moon (n 5) 22 para 50. 55 F Teson, ‘The Liberal Case for Humanitarian Intervention’ in J Holzgrefe and R Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge, Cambridge University Press, 2003) 93; see also F Teson, ‘Collective Humanitarian Intervention’ (1995–96) 17 Michigan Journal of International Law 323, 342. 51 

124  Alexandra Bohm security more explicitly than RtP does, arguing that, without adequately addressing this issue (and the international community’s role in contributing to the causes of insecurity), the international community can only ever respond to the symptoms, and not the causes, of insecurity. A.  The Importance of Mass Atrocity Crimes This section contends that, while horrific, mass atrocity crimes are not necessarily the primary insecurity faced by vulnerable populations today. Creating a doctrine to enable urgent responses to these particular crimes elevates the importance of certain types of death over other types, without justification, and risks adding to the injustices suffered by the most vulnerable people by drawing attention away from equally important, and related, situations of insecurity. Some statistics highlight this point. There are 18 million poverty-related deaths annually, with 2,000 million people lacking access to basic drugs, 2,500 million lacking access to basic sanitation, 1,020 million chronically undernourished and 34 million people suffering from HIV and AIDS.56 This contrasts with the 1998 statistics of 588,000 deaths from war and 736,000 from social violence57 and, of course, the famous death toll numbers of 800,000 in Rwanda and suggestions of 100,000 in Syria. Alex Bellamy describes this issue as ‘structural violence’, rather than organised military violence, being the main contemporary problem facing humanity.58 In this regard, he contrasts ‘death by politics’ (state sponsored killing) with ‘death by economics’ (such as starvation). The latter is somehow seen as being outside the interest or responsibility of international law and the ‘international community’.59 The perception of mass atrocity crimes as the most urgent security issue reflects a tendency of international lawyers to focus on crises, rather than on systemic chronic issues, and thus not consider the relationship between the two. As Hilary Charlesworth notes, ‘using crises as our focus means that what we generally take for “fundamental” questions and enquiries are very restricted’.60 Sundya Pahuja describes this phenomenon as ‘the power of a question to define an outcome’61—if mass atrocity crimes are 56  H Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65 Modern Law Review 377, 391; T Pogge, ‘Politics as Usual: What Lies Behind the Pro-poor Rhetoric?’ Yale University Lecture (2010) 12–13. 57  A Hurrell, Order and Justice in International Relations (Oxford, Oxford University Press, 2003) 42. See also A Bellamy, ‘Humanitarian Responsibilities and Interventionist Claims in International Society’ (2003) 29 Review of International Studies 320, 329. 58  Bellamy (n 57) 329. 59  Bellamy (n 57) 332. 60  Charlesworth (n 56) 377. 61  S Pahuja, ‘Don’t Just Do Something, Stand There! Humanitarian Intervention and the Drowning Stranger’ (2005) 5 Human Rights & Human Welfare 51.

Security and International Law 125 posed as the most urgent security threat to individuals, the outcome of a doctrine to deal with them seems natural. RtP succumbs to this crisisfocus, both in its very existence and in its limited acknowledgement that ‘global justice’ can be related to mass atrocity crimes. A focus on the more chronic problems outlined above would suggest that if we have a responsibility towards individuals in other states (as Teson suggests), it should include not just responding to crises in which mass atrocity crimes may occur, but also responding to the significant numbers suffering from these chronic problems. RtP does not explain why the ‘millions’ suffering from state repression and collapse are in need of a doctrine to help them, compared to the greater number of people dying from poverty-related causes. The existence of a doctrine addressing mass atrocities also suggests that they are a separate act or acts, unrelated to other global problems. This does not enable a comprehensive understanding of the situations in which mass violence occurs. Proponents such as Adama Dieng (the Secretary General’s Special Representative for the Prevention of Genocide) argue that RtP is supposed to be a narrow doctrine and so benefits from this limited focus.62 Gareth Evans (one of ICISS’ co-chairs) describes this as limiting the doctrine to ‘extreme, conscience-shocking cases’.63 This may calm the fears of those who see RtP as expanding the number of situations when it is acceptable to use military force, but, in more general terms, it does not explain why the deaths of 18 million human beings from poverty is not as conscience-shocking. Whilst efforts addressing underdevelopment and efforts addressing mass atrocity crimes are not necessarily mutually exclusive, there is a real risk that the focus on mass atrocity crimes will draw attention, effort and, crucially, funds away from causes, such as global health and poverty, and towards the defence industry and military intervention. Even if mass atrocity crimes are the major problem of our time, more conscienceshocking­than the 18 million poverty-related deaths every year, RtP still neglects the relationship between atrocities and more chronic problems. The focus on crimes occurring during crises reflects a prioritising of certain civil and political rights over other human rights. Scholars frequently refer to ‘fundamental’ human rights,64 without explaining whether all human 62  Dieng (n 39). The limited focus of RtP is a source of criticism for some who believe there is no justification for the choice of its four crimes, which are not necessarily obviously related in terms of causes and, possibly, appropriate responses—see, eg A Gallagher, Genocide and its Threat to Contemporary International Order (Basingstoke, Palgrave, 2013) 7. 63  Evans (n 12). 64  See, eg T Meron, ‘On a Hierarchy of International Human Rights’ (1986) 80 American Journal of International Law 1; WM Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990) 84 American Journal of International Law 866, 872; P Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force (Amsterdam, Het Spinhuis, 1993); M Kahler, ‘Legitimacy, Humanitarian Intervention, and International Institutions’ (2011) 10 Politics, Philosophy & Economics 20.

126  Alexandra Bohm rights are fundamental (as the term ‘human’ would imply) or whether some rights are more fundamental than others—though Holzgrefe and Keohane’s reference to the word ‘fundamental’ rights in their definition of humanitarian intervention suggests that only those rights triggering an intervention are the fundamental ones.65 This issue warrants further discussion, which takes place below. B. The Cause of Crises: Civil and Political vs Socio-Economic Rights The primary importance of certain civil and political rights stems from the ‘triumph of liberalism’66 at the end of the Cold War and the declining influence of socialism and socio-economic rights. At this time, liberal international lawyers and others began to champion democracy and civil and political rights. For example, Thomas Franck comments that, in relation to coup attempts in Haiti and Russia, ‘the international community vigorously asserted that only democracy validates governance’.67 Teson asserts that anarchy and tyranny (non-democracy) are the worst forms of injustice because it is under these conditions that evils, such as genocide, are perpetrated.68 In addition, John Rawls’ theory of justice focuses more on the civil and political arena than socio-economic issues—equality­of civil and political opportunities can never be compromised and increased socio-economic equality is not a justification for civil and political inequalities.69 In a similar vein, RtP relates insecurity strictly to the government’s failure to protect its people’s civil and political rights.70 It constructs the biggest threat to individual security as mass abuses of civil and political rights and constructs the blame for abuse to lie with the government when those rights are violated on a grand scale. Although one paragraph of the 2001 report by ICISS does refer to the role of Cold War debts and the trade policies of richer countries in preventing poorer states from addressing some of the root causes of conflicts, such as poverty,71 it then ties these

65 

Holzgrefe and Keohane (n 55) 1. F Fukuyama, ‘The End of History’ (Summer 1989) National Interest. 67 T Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46, 47. See also A D’Amato, ‘The Invasion of Panama was a Lawful Response to Tyranny’ (1990) 84 American Journal of International Law 516, 516; AM Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503, 509; Teson, ‘The Liberal Case’ (n 55) 93–94. 68  Teson, ‘The Liberal Case’ (n 55) 102. 69  J Rawls, A Theory of Justice (Harvard, Harvard University Press, 1999) 61. 70  See section III B above. 71  ICISS (n 2) 20 para 3.4, 22 para 3.22. 66 

Security and International Law 127 causes back to the civil and political rights arena of national democratic participation and national responsibility, suggesting that national poverty and inequality is to be solved by national good governance.72 Very little of the 2001 report considers the potential ‘direct’ responsibility of the international community for socio-economic underdevelopment in poorer countries (rather than viewing national political constitution as responsible for socio-economic development).73 The 2009 report is slightly more promising in this regard, referring to aid and development as part of conflict prevention in stronger terms than ICISS does. But this report still largely sees the relationship the other way round, noting (no doubt correctly) that mass atrocity crimes halt development, such as tourism and capital investment.74 There is, therefore, a significant disparity between civil and political rights and socio-economic rights in RtP. This disparity is worrying in itself, given the number of people suffering from poverty and RtP’s claimed cosmopolitan concern for ‘a humanity that cares more, not less, for the suffering in its midst, and a humanity that will do more, and not less, to end it’.75 It is also worrying because development and security are related—underdevelopment and poverty contribute significantly to violence and instability. Kofi Annan highlights the general importance of socio-economic development when commenting that ‘a young man with AIDS who cannot read or write and lives on the brink of starvation is not truly free.’76 Thomas Pogge points to the inability of severely poor citizens to combat corrupt and anti-democratic governments.77 James Richardson suggests that ‘Arbitrary acts of violence against the underprivileged, or acts of omission such as the dispossession without restitution of those who inadvertently stand in the way of “development’’’ are just as important as ‘negative’ rights (which are the focus of RtP).78 Fearon and Laitin found that poverty was a key factor contributing to civil war and Suzuki and Krause found that economic development reduced the risk of civil war.79

72 

ICISS (n 2) 19 para 3.2. (n 2) 23 para 3.22; D Chandler, ‘The Responsibility to Protect: Imposing the ­“Liberal Peace”?’ (2004) 11 International Peacekeeping 59, 62. 74  Ki-moon (n 5) 16 para 32. 75 K Annan, ‘Two Concepts of Sovereignty’ Address to the General Assembly (20 September 1999) 1. 76  K Annan, ‘In Larger Freedom: Towards Security, Development, and Human Rights for All’ Report of the Secretary General (UN, 2005). 77  Pogge (n 56) 20. 78  J Richardson, ‘Contending Liberalisms: Past and Present’ (1997) 3 European Journal of International Relations 5, 25. 79 JD Fearon and DD Laitin, ‘Ethnicity, Insurgency, and Civil War’ (2003) 97 American Political Science Review 75; S Suzuki and V Krause, ‘Trade Openness, Economic Development and Civil War Onset in the Post-Colonial World, 1950–1992’ (2005) 5 Conflict, Security and Development 23. 73 ICISS

128  Alexandra Bohm RtP’s national civil-political focus is in contrast to the General Comments issued by the Committee on Cultural, Economic and Social Rights, which suggest that all states must respect the economic, social and cultural rights of individuals in other countries—this appears to go unnoticed by RtP and its proponents.80 In RtP terms, a national commitment to good governance and political participation and representative governance is of limited value if, for example, an individual cannot read the ballot papers or is dying of starvation and so unlikely to have an investment in their future. This means that RtP’s commitment to protecting vulnerable individuals from abuses is rather empty without a prior commitment to the socio-economic­ rights that strengthen the ability of citizens to meaningfully participate in democracy and good governance measures—the high-level human rights training in prevention is of little use if individuals cannot exercise these rights ‘on the ground’. There is strong evidence that development contributes significantly to security and conflict prevention, suggesting that the structural violence of inequality and poverty is prior to outbreaks of military violence.81 In order to be meaningful, the international community’s responsibility to protect, whether in ICISS’ terms of prevention or Ki-moon’s terms of assistance, should include a ­genuine commitment to development and poverty alleviation. The idea of the international community’s duty to assist states in preventing abuse suggests that the international community’s relationship with problem states is currently neutral, being neither a help nor a hindrance. If the blame for these crises lies with the local government, then, in response to a failure at the national level, it is logical that the international community could perceive a need for action in response.82 A further issue meriting consideration is the degree of responsibility already borne by the international community in contributing to underdevelopment, violence and insecurity. The chapter now links socio-economic issues to the role of the international community in crises, challenging its role as rescuer.

80  Committee on Economic, Social and Cultural Rights, General Comments No 12 para 36; No 14 para 39 and No 15 paras 31, 33 and 34 refer to the responsibility of all states parties to respect, protect and facilitate the enjoyment of economic, social and cultural rights in other countries. 81  Fearon and Laitin (n 79); Suzuki and Krause (n 79). See also Bellamy (n 57); J Galtung, Peace by Peaceful Means (London, Sage, 1996); S Zizek, Violence (London, Profile, 2008). 82 WM Reisman, ‘Some Lessons From Iraq: International Law and Domestic Politics’ (1991) 16 Yale Journal of International Law 203, 203; L Gordenker and T Weiss, ‘The Collective Security Idea and Changing World Politics’ in T Weiss (ed), Collective Security in a Changing World (Boulder, Lynne Reiner, 1993) 14; Teson, ‘Collective Humanitarian Intervention’ (n 55) 342.

Security and International Law 129 C. The Role of the International Community in Insecurity—to the Rescue? In response to Bellamy’s description of an international community which shows more concern for death by politics than by economics, this section demonstrates that the international community contributes significantly to ‘death by economics’. Because this socio-economic insecurity is related to acts of violence, the international community therefore contributes to much of the violence within the states, which are then perceived to be unwilling or unable to fulfil their responsibility to protect. The idea that rich states contribute to the underdevelopment of poor states is not new. Whilst it is beyond the scope of this chapter to engage fully with development literature, it is at least plausible that rich country development policies are not helping the global poor, with loan conditions that increase inequality and decrease education, welfare and employment. For example, during the 1990s, developed countries reduced their development assistance by 27 per cent.83 Thomas Pogge also points to the asymmetrical global trading regime that allows rich countries to favour their companies through tariffs, quotas and subsidies, at an estimated cost to poor countries of $700 billion, whilst poor countries struggle to obtain affordable generic drugs and crop seeds as a result of the market access conditions imposed upon them by rich countries.84 Because socio-economic underdevelopment has been shown in section IV B as being linked to violence and conflict, the international community’s responsibility for socio-economic injustice means that they have a responsibility for contributing to the violence from which they wish to rescue people. Two examples demonstrate these points well. In the Balkan crisis, Anne Orford argues that the key threats to peace were viewed to be local historical ethnic tensions; set against the local cause of threats, the question for international actors was that of rescue.85 In contrast to this view of threats to individuals, Orford points out the contribution made by the economic liberalisation project of the World Bank and International Monetary Fund to the increasing instability in, and eventual violent breakup of, the former Yugoslavia. She notes that before the two international financial institutions’ (IFI) interventions into the country, the different Yugoslavian provinces had been able to coexist peacefully with a degree of autonomy from the central government, without perceiving a need for full separation. The IFIs required the central government to enact constitutional changes, 83  T Pogge, ‘Priorities of Global Justice’ (2001) 32 Metaphilosophy 6, 7, citing UNDP, Development Report (Oxford, Oxford University Press, 2000) 218. 84  Pogge (n 83) 12; Pogge (n 56) 20. 85 A Orford, ‘Locating the International: Military and Monetary Interventions after the Cold War’ (1997) 38 Harvard International Law Journal 443, 444; A Orford, Reading Humanitarian Intervention (Cambridge, Cambridge University Press, 2003) 18.

130  Alexandra Bohm which increased centralised control at the expense of autonomous regions, as well as decreasing educational opportunities and reducing constitutional protections for workers.86 This led to a decrease in income per capita, increased unemployment and attendant social unrest, together with a perception within the various regions that independence would be necessary to be able to reverse the damaging social changes introduced by the central government and the IFIs.87 Pre-existing nationalist sentiments had previously been managed through regional autonomy, but were fuelled by the increasing sense of insecurity, instability and social exclusion resulting from the constitutional reforms and increased centralisation decreed by the IFIs. This is a very different, and more complex, picture than that of purely local factions fighting for local reasons, with the only question for the international community being whether or not it should intervene to protect individuals at risk from local violence. The problematic role of the international community in intra-state violence can also be demonstrated in the case of Rwanda, where ­ ­Belgium’s colonial policy of elevating Tutsis to senior economic positions at the expense of the Hutu population is said to have led to many of the ethnic tensions that led to the genocide in 1994.88 Rwanda’s exposure to the international market in coffee and the economic problems caused by the ­collapse in coffee prices is also said to have contributed significantly to the tensions through rapid increases in poverty and resulting social unrest.89 Far from helping prevent instability and violence, international aid agencies and development programs are also alleged to have contributed to the ‘structural violence’ of poverty, inequality and humiliation of the local population, which was largely excluded from meaningful participation in decisions (and jobs) in the development process.90 Mahmood Mamdani goes even further than suggesting that colonialism contributed to ethnic tension, arguing that in Rwanda and Darfur colonialism actually created racial differences that would not otherwise have existed in these countries.91 Whether Mamdani is correct or not, it is difficult to deny the link between these non-military interventions (whether overtly colonial or through the practices of IFIs) that leave countries impoverished and 86 

Orford, ‘Locating the International’ (n 85) 453. Orford, ‘Locating the International’ (n 85) 454; Bellamy (n 57) 330. 88  B Jones, ‘Intervention without Borders: Humanitarian Intervention in Rwanda, 1990–94’ (1995) 24 Millennium Journal of International Studies 225. 89 RH Robbins, Global Problems and the Culture of Capitalism (Boston, Allyn and Bacon, 2002) 269; P Verwimp, ‘The Political Economy of Coffee, Dictatorship, and Genocide’ (2003) 19 European Journal of Political Economy 161. 90  P Uvin, Aiding Violence: The Development Enterprise in Rwanda (Bloomfield, Kumarian Press, 1998) 107, 136 and 143. 91 M Mamdani, When Victims Become Killers: Colonialism, Nativism and the Genocide in Rwanda (Princeton, Princeton University Press, 2001) 13, 42 and 80; M Mamdani, Saviours and Survivors: Darfur, Politics and the War on Terror (Brooklyn, Verso, 2009) 6, 15, 59 and 271. 87 

Security and International Law 131 acts of violence that spring from such impoverishment. This link does not mean that those carrying out acts of violence should not bear any responsibility for their actions; but if RtP really aims to prevent violence, or react usefully to it, then it cannot ignore the broader context in which violence occurs or the wider range of actors responsible for violence. Bellamy concurs that focusing on the need for acts of ‘intervention’ ensures that military interventions are perceived as discrete acts, rather than a different part of the spectrum of the international community’s historical, ongoing, long-term involvement in ‘problem’ states.92 This section has suggested that the international community is a significant contributor to violence taking place in the countries that RtP deems incapable of protecting their citizens. This calls into question RtP’s genuine commitment to root cause prevention as it is merely addressing the symptoms. The result of focusing on symptoms over causes is the perceived importance of military intervention in response to these symptoms—it is to this issue that the chapter now turns. D. RtP’s Unanswered Questions: A Return to ‘Humanitarian Intervention’ Section II noted the unresolved issues in RtP surrounding military intervention—‘just war’ questions of last resort and the right authority to sanction/permit action. Despite its claimed focus on prevention and protection for victims, rather than the ‘rights’ of interveners, and wider approach than purely military intervention,93 the ICISS report devotes 13 pages on military issues—far more than on root cause prevention or responses other than military action, such as diplomacy and sanctions. Ironically, it suggests that military action might be appropriate because sanctions can be a blunt instrument.94 The 2009 report takes the question of military intervention further (though less of the report is focused on the topic), stressing that chronological sequencing of responses is not necessary in response to a crisis, so that military intervention does not have to be a last resort. This focus on military action is troubling for two reasons. First, it risks neglecting a true commitment to prevention (particularly the long-term socio-economic issues outlined above). Second, if it is agreed that military intervention does not have to be a last resort in particular ‘worst case’ scenarios, it becomes all too easy to view each crisis as one of the 92  Bellamy (n 57) 329. See also A de Waal, ‘Darfur and the Failure of the Responsibility to Protect’ (2007) 83 International Affairs 1039. 93  Evans (n 12) 285. 94  ICISS (n 2) 29 para 4.5.

132  Alexandra Bohm ‘worst case’ scenarios requiring immediate military action. The idea that one needs to decide what to do in these difficult, worst case situations, presumes that we are already willing, able, committed and actually doing everything else in the non-worst case scenarios, with the only remaining problem being the few worst cases. A similar situation arises in relation to the need for Security Council authorisation—it becomes easy to view any veto as illegitimate because it prevents a perceived-necessary military response, without considering that perhaps a veto might suggest that it is the proposed military response that is, in fact, illegitimate. For example, the Russian and Chinese vetoes of action in response to the Syrian crisis might not necessarily be illegitimate simply because they have the effect of preventing military action. Given the controversy surrounding the Libyan intervention and subsequent regime change, as well as the war crimes committed by the National Transitional Council, a resulting reluctance to authorise further military interventions is unsurprising.95 This repeated return to the issue of military action at the expense of serious long-term prevention efforts, suggests that RtP and humanitarian intervention are not ‘very different concepts’ as Gareth Evans has argued.96 In fact, Thomas Weiss comments that ‘the acknowledgment by the 2005 World Summit … has reinforced the legitimacy of humanitarian intervention as a policy option’97 and even the ICISS report itself says that its report is about humanitarian intervention.98 To criticise the constant focus on military intervention is not to say that use of force can never be an acceptable policy option. The point being made here is that the absence of a genuine commitment to doing everything that can be done, before contemplating military intervention, will mean that any use of force is unlikely to be perceived as legitimate. Doing ‘everything’ should not be taken to be diplomacy and sanctions in response to a crisis, but should also include a serious long-term commitment to poverty and inequality reduction as part of the international community’s responsibility towards vulnerable individuals. The ‘do something or do nothing’99 approach to military intervention in response to a crisis reflects the assumption highlighted in section IV C, that the international community is currently ‘doing nothing’ and has the option of ‘doing something’ (ie military intervention) to save people.

95  See, eg O Corten and V Koutroulis, ‘The Illegality of Military Support to Rebels in the Libyan War: Aspects of jus contra bellum and jus in bello’ (2013) 18 Journal of Conflict Security Law 95; A Bellamy and P Williams, ‘The New Politics of Protection’ (2011) 87 International Affairs 825, 846; S Zifcak, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13 ­Melbourne Journal of International Law 1, 11. 96  Evans (n 12) 290. 97  T Weiss, Humanitarian Intervention (Cambridge, Polity, 2007) 89. 98  ICISS (n 2) foreword vii. 99  S Chesterman, Just War or Just Peace (Oxford, Oxford University Press, 2001) 108.

Security and International Law 133 Section IV’s argument—that the international community is not in fact ‘doing nothing’ in relation to unstable states, but is in fact contributing to this instability—should suggest caution in endorsing the international community’s subsequent desire to ‘do something’ in response to outbreaks of violence. These problems with RtP are important in their own right, but are particularly important in the wider context of international peace and security law more generally when considering arguments about the legal status of RtP. V.  THE RESPONSIBILITY TO PROTECT AND INTERNATIONAL LAW: THE PROBLEM WITH AN ‘EVOLVING NORM’

The relationship of the RtP doctrine to international law is far from ­settled, with a variety of descriptions attaching to the documents that go to make up RtP—a ‘concept’; an ‘idea’; a ‘political push’; ‘political commitment’ or an ‘evolving norm’.100 Sceptics argue that RtP is a political and not a legal doctrine as it has not achieved customary status under international law, any more than its predecessor concept of humanitarian intervention, and the General Assembly’s World Summit endorsement of RtP was very limited and only to the extent that the idea was in line with existing i­nternational law.101 Proponents argue that RtP is already part of international law, bringing together different strands of extant law on states’ human rights obligations to their own populations and to others (eg under the Genocide Convention),102 the Rome Statute of the International Criminal Court and reports such as the 2004 High Level Panel 100 eg, M Notaras and V Popovski, ‘The Responsibility to Protect’ (United Nations ­ niversity, 5 April 2011) (concept); Evans (n 12) (idea, new norm, concept); A Bellamy, U ‘The Responsibility to Protect—Five Years On’ (2010) 24 Ethics and International Affairs 143 (political commitment); UN High Level Panel (n 6) 65–66 paras 201–02 (emerging norm); M Wood, ‘The Responsibility to Protect’ speech to the opening plenary of the Responsibility to ­Protect in Theory and in Practice Conference (Ljubljana, 11–12 April 2013) (political push). For a summary, see A Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (­Cambridge, Polity, 2009) introduction. 101  On humanitarian intervention, see Chesterman (n 99). On RtP see, eg N Zupan, The RtoP: The Soft Law Riddle and the Role of the United Nations (Ljubljana, GV Zalozba, 2012) 541–61; C Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 American Journal of International Law 99 (noting that the question of authorisation has been consistently referred back to the Security Council, demonstrating that the law on exceptions to Art 2(4) of the UN Charter remains unchanged); D Amneus, ‘Has Humanitarian Intervention Become Part of the International Law under the Responsibility to Protect Doctrine?’ in Nollkaemper and Hoffmann (n 21) 157 (arguing that there has been no change in customary international law); A Hehir, ‘The Responsibility to Protect and International Law’ in P Cunliffe (ed), Critical Perspectives on the Responsibility to Correct: Interrogating Theory and Practice (Abingdon, Routledge, 2011). 102  O Bring, ‘Responsibility to Protect’ speech to opening plenary of the Responsibility to Protect in Theory and in Practice Conference (Ljubljana, 11–12 April 2013). See also E Luck, ‘Interview Remarks’ UN News Centre, 1 August 2011, cited by Zupan (n 101) 532.

134  Alexandra Bohm report on ‘Threats, Challenges and Change’ and the 2005 ‘In Larger Freedom’ report by Kofi Annan.103 This means that there is nothing new in RtP and it has not changed international peace and security law on the use of force. Using UN reform reports, in addition to more formal sources of international law, to argue that RtP is a coherent unified legal norm is controversial, but the fact that parts of RtP reflect existing international law may lend legitimacy to the concept. The idea that RtP is uncontroversial because it simply reflects existing international law sits uneasily with those aspects of RtP that seek to move beyond the existing legal framework—especially the need for UN Security Council authorisation for military intervention. An example of this is the thinking of Anne Peters, who admits that the legal status of RtP is not settled, but suggests that if RtP were a legal norm, then Security Council veto action could potentially be illegal and the P5 would be obliged to give reasons for any veto—something which she suggests may, in any event, be an existing procedural obligation.104 The push for implementation of RtP, now that the ‘battle for ideas’ is apparently won,105 will be problematic if these key areas are not resolved. What exactly is to be implemented, the 2001 report’s just war criteria requiring military intervention to be a last resort, or Ki-moon’s suggestion that there is no need for a chronologically sequenced response? Nina Zupan laments that ‘the contestability of the [RtP] can indeed slow down and reduce the efficacy of its ­implementation’.106 However, the contested nature of key parts of RtP suggests that these are not ready to be implemented. If an idea has only achieved consensus on a limited number of points, then implementation should not push beyond this consensus—particularly not if relying on the level of consensus for legitimacy. ICISS mentions the suggestion that the Security Council P5 refrain from using their veto not as a consensus, but as an idea from one of the P5 representatives, one out of 193 Member States of the UN, and the 2005 Outcome Document restates that RtP should be in line with existing international law.107 Military intervention without Security Council authorisation does not form part of the consensus on RtP, and yet the 2009 report, and much debate on the topic, seems to presume that implementation of RtP requires a way to deal with the (presumed) illegitimate veto—any veto preventing military action must necessarily be illegitimate because it is preventing military action.

103  N Schriver, ‘The Responsibility to Protect’ speech to the opening plenary session of the Responsibility to Protect in Theory and in Practice Conference (Ljubljana, 11–12 April 2013). 104  A Peters, ‘The Responsibility to Protect and the Permanent Five: The Obligation to Give Reasons for a Veto’ in Nollkaemper and Hoffmann (n 21) 199. 105  Adams (n 26). 106  Zupan (n 101) 547–48. 107  UNGA, Outcome Document (n 4) 139.

Security and International Law 135 Despite its ‘contestability’, the idea that the RtP doctrine is a necessary and welcome development permeates international legal discourse and relates to the idea that extant international (peace and security) law is not ‘fit for purpose’ in its ability to meet the security threats of the postCold War era.108 Gillian Triggs argues that generally ‘international law is responding dynamically to the contemporary concern for the humanitarian needs of the individual’109 but is still not able to respond adequately, is still not fit for purpose, because it does not allow military intervention without Security Council authorisation.110 This idea that international law is not fit for purpose can be seen not just in relation to intervention for ‘human protection’ purposes, but in other areas of law, including ‘cyber war’ and terrorism, where a threat is identified as too novel for existing law to be able to respond adequately.111 In contrast to calls to move international law ‘forward’ to enable a military response in RtP situations, others note that the rules prohibiting use of force exist for good reason and the migration of human rights issues away from multilateral resolution and into the area of peace and security, use of force, is problematic. Philip Alston argues that the focus on ad hoc interventions, in response to civil and political crises, allows the interveners to avoid supporting existing multilateral human rights promotion and protection regimes.112 Mary Ellen O’Connell notes that the risk of increasing the range of permissible uses of force is an overall increase in violence and instability.113 Brazil’s concept of ‘responsibility while protecting’ draws attention to the very high costs of an intervention, in terms of casualties and increased violence, aptly demonstrated in Kosovo when the NATO bombing campaign was

108  This idea formed part of Sir Daniel Bethlehem QC’s opening remarks at the conference upon which this volume is based (n *). See also D Bethlehem, ‘International Law and the Use of Force: The law as it is and as it should be’ written evidence submitted to the House of Commons Foreign Affairs Committee (Seventh Report, 2004): ‘there are significant shortcomings in the traditional body of legal rules relevant to the use of armed force … Recent events … pose a challenge to the adequacy and coherence of the law in this area’; at 6 he summarises the main question for the Committee as ‘Is international law adequate to the task required of it in contemporary international society?’ para 2.2 109  G Triggs, ‘Public International Law: Is it Fit for Purpose?’ (2007) 7 Legal Information Management 113, 118. 110  Triggs (n 109) 119. 111  On cyber war, see Chapter 14 of this volume and the special edition of the Journal of Conflict and Security Law, in particular M O’Connell, ‘Cyber Security without Cyber War’ (2012) 17 Journal of Conflict and Security Law 187. On terrorism, see eg O Okafor, ‘­Newness, Imperialism, and International Legal Reform in our Time: A Twail Perspective’ (2005) 43 Osgoode Hall Law Journal 171. 112 P Alston, ‘The Security Council and Human Rights: Lessons to be Learned from the Iraq-Kuwait Crisis and its Aftermath’ (1991) 13 Australian Yearbook of International Law 107, 107. 113  M O’Connell, ‘Responsibility to Peace: A Critique of R2P Mary Ellen O’Connell’ in P Cunliffe (ed), Responsibility to Protect: Critical Perspectives (London, Routledge, 2011).

136  Alexandra Bohm said to increase ethnic cleansing during the ensuing chaos.114 ‘Fitness for purpose’ therefore seems to be synonymous with the expectation that international law should permit military intervention in more situations than it currently does. As noted, this risks increasing the overall level of violence and instability in the world. In relation to the questions posed by the editors of this volume (to what extent international law can address the types of security threats in the twenty first century and where international law might fall short in this regard), RtP suggests that international law is capable of addressing the security threat of atrocities, but that it currently falls short in doing so, particularly in relation to the authorisation of military force. In contrast with this theme, this chapter has suggested that asking if international law is ‘fit for purpose’ because it does not permit military intervention to provide security, is asking the wrong question. International law does not necessarily fall short just because it does not mirror the ideas in RtP about when military intervention should occur and how it should be authorised. VI. CONCLUSION

This chapter outlined the development of the RtP doctrine and examined some problems with RtP’s view of the key threats to individuals and their security in the post-Cold War era. The problems identified were the prioritising of mass atrocity crimes over other suffering and death; the focus on civil and political rights abused by a local government; the assumption that the international community is well-placed to undertake a s­ econdary responsibility to protect by assisting with conflict prevention; and the assumption that a new doctrine is required because existing international law is not capable of responding adequately to the question of intervention without Security Council authorisation. The chapter demonstrated these problems by highlighting an alternative understanding of the source and type of threats to the security of vulnerable individuals. Here the chapter explored the role of the international community in contributing to the insecurity of individuals across the globe, both through chronic socio-economic underdevelopment in general and its role in suppressing national political participation and through more specific examples of international community policies, which contribute to the very crises to which the international community wants to respond. The chapter then 114  Speech given by President Dilma Rousseff during the general debate, 66th UN General Assembly Session (21 September 2011) www.un.int/brazil/speech/11d-Pr-Dilma-Roussefopening-of-the-66th-gerneral-assembly.html; E Herring, ‘From Rambouillet to the Kosovo Accords: NATO’s War Against Serbia and its Aftermath’ in K Booth (ed), The Kosovo Tragedy: The Human Rights Dimension (London, Frank Cass, 2001) 225, 229. See also D Levine, ‘Some Concerns about the Responsibility not to Veto’ (2011) 3 Global Responsibility to Protect 323.

Security and International Law 137 suggested that the way RtP views crises (and the role of the national government and international ‘community’ of states) leads to an assumption that the rules on the use of force need to be revisited, such that military intervention can be undertaken not as a last resort and not requiring Security Council authorisation. Linking this to international law more generally, the chapter examined RtP’s relationship with the international legal regime governing peace and security and related this to general debates about the extent to which international law is ‘fit for purpose’ in addressing contemporary problems. The central questions of this book relate to the adequacy of international law in responding to contemporary security threats. This chapter has argued that RtP constructs the nature of threats, and so the best response to them, in such a way as to suggest that certain aspects of international law are not capable of responding to the security threat of mass a­ trocity crimes (chiefly, the strict procedures of the UN in relation to international peace and security). In its attempt to respond to this security threat, RtP addresses some of the symptoms of global insecurity, rather than the fundamental causes. Those who wish to do good in responding to situations of insecurity, and who believe that the international community has a responsibility towards vulnerable individuals across the globe, should therefore refocus their efforts on chronic conditions of poverty and ­inequality, both because these are important in their own right and because these efforts are likely to reduce the sorts of crises that RtP was designed to address. In relation to the human rights-state sovereignty paradigm involved in RtP, assuming that international law is not fit for purpose because it does not permit military interventions into another state is a flawed assumption. There are good reasons to limit the scope of permissible military intervention. A doctrine which tries to expand the ability of states to use force to halt violence, without considering and addressing more fully the causes of such violence (in particular the role of these ‘­rescuer’ states in helping create the instability in the first place), should be treated with caution.

138

Part II

Security Threats and International Law

140

7 International Law and the Iranian Nuclear Crisis: Lessons for International Security and Arms Control TOM COPPEN

I. INTRODUCTION

T

HIS CHAPTER EXPLORES certain characteristics of major legal instruments dealing with nuclear non-proliferation, as well as the role of international arms control law in the context of the conflict surrounding Iranian nuclear activities. It focuses on an interpretation of relevant provisions of the Nuclear Non-Proliferation Treaty (NPT), as well as on certain institutional aspects of the International Atomic Energy Agency (IAEA) safeguards procedure. By analysing the role of arms control law in the context of the dispute over Iran’s nuclear activities, this chapter aims to provide more insight into the role and potential of this field of law in maintaining international peace and security. Both the NPT and the IAEA are arms control instruments. Arms control, in the definition of the US Arms Control and Disarmament Agency (ACDA), consists of ‘efforts to reduce the likelihood of war and to limit the effects if it occurs’.1 States, in general, regard the right to arm themselves as a sine qua non of their ability to protect their territory and national sovereignty. For many states, their ability to project military power is also an important pillar of foreign policy. The right to build up national defences is understood to be unlimited. In the absence of a

1 United States Arms Control and Disarmament Agency (ACDA), ‘Arms Control and National Security’ (Washington DC, 1968) 3. See also, eg AH Chayes and A Chayes, ‘From Law Enforcement to Dispute Settlement: A New Approach to Arms Control Verification’ (1990) 14(4) International Security 147.

142  Tom Coppen binding international obligation stating otherwise, no restrictions apply to the right of states to possess any number or types of arms.2 To voluntarily relinquish this right by entering into such obligations, for example, by signing an arms control treaty, is therefore a decision that may have far-reaching military and internationally political consequences for states. This explains why arms control treaties often require lengthy and difficult negotiations3 and why their ratification by national legislators may take even longer.4 National security and national interests are overriding concerns in the field of arms control law. Other interests include principles of non-interference, sovereign equality of states, good faith, or cooperation.5 International politics and diplomacy play a large role in the field of arms control law and often continue to do so even after a treaty has been concluded.6 The law of arms control is ‘mainly treaty law as distinct from custom and general principles’.7 Its subject matter warrants predictability, stability and reciprocity, which is the reason that states have traditionally favoured treaty-making in this field of law.8 Arms control treaties are normally a confirmation of the political status quo, arranged between dominant states to codify a de facto political or military situation that is in their best interest.9 Once a treaty has been concluded, the adherent states benefit from the predictability and stability that is created by the legal

2  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 1984, para 269; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 1996, para 21. 3  Negotiations on the NPT started in 1959 and lasted nine years; on the Biological Weapons Convention (BWC), they started in 1966, lasting six years; on the Chemical Weapons Convention (CWC), they also started in 1966, only to be concluded 26 years later. 4  The Comprehensive Test-Ban Treaty (CTBT), concluded in 1996, still has not been ratified by several key states, preventing its entry into force to date. 5 Arms control law is, according to Feldman, based on ‘the principles of equality and undiminished security’. S Feldman, ‘The Place of Arms Control and Disarmament in the System of International Law’ in J Dahlitz and D Dicke (eds), The International Law of Arms Control and Disarmament—Vol I Arms Control and Disarmament Law (Geneva, United Nations, 1991) 41; see also G Den Dekker, The Law of Arms Control: International Supervision and Enforcement (The Hague, Martinus Nijhoff, 2001). 6  The International Law Association (ILA) concluded at its London Conference that ‘the end of the negotiations [of an arms control treaty] is, in fact, only the beginning of the arms control process’. ILA, Committee on Arms Control and Disarmament Law, 5th Report (London, 2000) 3. 7 ibid. 8  J Dahlitz, ‘The Role of Customary Law in Arms Limitation’ in Dahlitz and Dicke (n 5); G Den Dekker and T Coppen, ‘Termination and Suspension of, and Withdrawal from, WMD Arms Control Agreements in Light of the General Law of Treaties’ (2012) 17(1) Journal of Conflict and Security Law 1. 9  Or, as Knut Ipsen phrases it, arms control treaties are the ‘terminating point of political evolution’. K Ipsen, ‘Explicit Methods of Arms Control Treaty Evolution’ in Dahlitz and Dicke (n 5) 76.

International Law and Iranian Nuclear Crisis 143 certainty of written norms. This need for legal certainty has also led to a strong tendency by states that are party to multilateral treaties to preserve that treaty regime and, if possible, to attempt to achieve universal membership.10 On the other hand, states will attempt to preserve some political and legal flexibility within the regime of arms control agreements. This apparent paradox is explained by the fact that states feel that they must not be constrained, by too rigid treaty rules, from taking necessary measures to protect their vital interests, such as national security. Policy and international politics are more dynamic than the development of international law.11 Treaties thus need to preserve flexibility to deal with economic, political, military or technological developments—which may happen gradually or suddenly.12 For these reasons, states under arms control regimes retain the required level of autonomy through the use of open, multi-interpretable, central norms therein, or the incorporation of special withdrawal clauses.13 The dispute over the Iranian nuclear programme is extremely complicated, involving political and legal arguments from both sides. This chapter analyses three Iranian arguments against the legitimacy of IAEA resolutions adopted against it. These allegations must be examined in the light of the NPT and the IAEA institutional framework. First, there is the assertion that the Additional Protocol (AP) is not a legal obligation but a voluntary confidence-building measure; second, Iran claims that the resolutions adopted by the IAEA Board of Governors violate procedural rules of the IAEA Statute; third, Iran maintains that the demand of the Board for Iran to suspend uranium enrichment is illegal as it conflicts with Article IV of the NPT. After these issues have been examined, the results are, in turn, assessed in light of the general reaction of the international community to the nuclear activities of Iran.

10  The desire of the NPT Member States to achieve universal adherence to the treaty is reflected in its Review Conference Final Documents. See NPT RC 1975 Final Document, NPT/CONF/35/I Annex I, 10; NPT RC 1985 Final Document, NPT/CONF.III/64/I Annex I, 17; NPT RC 1995 Final Document Decision 2, NPT/CONF.1995/32 (Part I), Annex, para 2; NPT RC 2000 Final Document, NPT/CONF.2000/28 (Part I), 19 para 5–6; NPT RC 2010 Final Document, Review section, NPT/CONF.2010/50 (Vol I), 17–18. 11  See Ipsen (n 9); see also, eg A von Baeckmann, ‘The Treaty on the Non-Proliferation of Nuclear Weapons (NPT)’ in S Sur (ed), Verification of Current Disarmament and Arms Limitation Agreements: Ways, Means and Practices (Geneva, UN Institute for Disarmament Research (UNIDIR), 1991) Chapter 6. 12  Dahlitz (n 8); Den Dekker and Coppen (n 8). 13  See, eg Article X NPT; Article XVI CWC; Article IX CTBT; Article 31 of the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (LANWFZ Treaty); Article XIV of the New START Treaty; Article 1 of the African Nuclear Weapon Free Zone Treaty (ANWFZ Treaty); Article XV of the Anti-Ballistic Missile Treaty.

144  Tom Coppen II.  THE NUCLEAR NON-PROLIFERATION REGIME

The concept of nuclear non-proliferation is as old as nuclear weapons themselves.14 International law, however, did not immediately play a significant role in the context of non-proliferation. The conclusion, in 1957, of the Statute of the IAEA constituted the first major building block of the international legal nuclear non-proliferation regime.15 A decade later, two others followed: the Treaty of Tlatelolco on a Nuclear-Weapon Free Zone in Latin America and the Caribbean, and the NPT Treaty.16 The NPT’s entry into force in 1970 changed the dynamics of nuclear non-proliferation for good. Although many other international treaties and agreements, as well as politically binding arrangements, were concluded over the decades that followed, the NPT remains the only global treaty on nuclear non-proliferation and has slowly increased its membership until, today, only four states remain outside the treaty.17 The NPT divides its Member States into nuclear-weapon states (NWS) and non-nuclear weapon states (NNWS). States that conducted a nuclear explosion before 1967 belong to the former category, all others are NNWS.18 All NPT states must refrain from furthering the wider dissemination of nuclear weapons. NNWS are under an additional obligation not to acquire nuclear weapons in any way and to place their nuclear facilities under IAEA safeguards in order to verify that nuclear material is not diverted to nuclear-explosive related purposes.19 At the same time, NPT states are under an obligation to ‘pursue negotiations in good faith’ towards nuclear and general disarmament. In practice, however, this obligation mostly falls to the NWS and almost exclusively focuses on nuclear disarmament.20 Another substantive provision of major importance to the

14  The US and UK had developed foreign policies to stop Nazi Germany from acquiring nuclear weapons before the US managed to construct its first nuclear weapon itself. See JT Richelson, Spying on the Bomb: American Nuclear Intelligence from Nazi Germany to Iran and North Korea (New York, Norton & Company, 2007). The term ‘non-proliferation’ is understood here to cover all efforts, short of the use of force, that aim to prevent states from acquiring or developing nuclear weapons, or nuclear-related equipment, materials or technology with the aim of developing a nuclear weapon. Such efforts may be of a legal, political or economic character, they may be uni-, bi- or multilateral. Counter-proliferation are initiatives involving the threat or use of force aimed at halting the spread or development of nuclear weapons. Usually, they are more of a roll-back than of a preventive nature. 15  Statute of the International Atomic Energy Agency 1957. 16  UN Secretariat (1968) 634(9068) 326–66; UN Secretariat (1970) 729(10485) 168–75. 17  Democratic People’s Republic of Korea, India, Israel, Pakistan. All four have developed nuclear weapons as non-NPT states. 18  Article IX NPT. 19  Articles I, II and III NPT. 20  Article VI NPT; see also, eg Review Conference Final Documents NPT/CONF.2010/50 (Vol I); NPT/CONF.2000/28 (Part I); most recently, the discussions at the 2013 NPT PrepCom reflected the same idea.

International Law and Iranian Nuclear Crisis 145 non-proliferation regime, Article IV, codifies the ‘inalienable’ right of all states to use nuclear energy for peaceful purposes and to participate in the ‘fullest possible’ exchange of materials, equipment and technology. Moreover, it obliges developed states to contribute to the development of peaceful applications of nuclear energy, with ‘due considerations for the needs of the developing areas of the world’. Thus, non-proliferation, nuclear disarmament and peaceful uses of nuclear energy together constitute the three main ‘pillars’ of the NPT.21 Diverging interests of states and differing emphasis on the three pillars have caused major political disaccord between the NPT Member States, especially between the NWS and their closest allies on the one side and the Non-Aligned Movement (NAM) on the other.22 These disagreements mostly surface at NPT Review Conferences and Preparatory Committees (PrepComs), which form the mechanism for supervision and review of the implementation of the treaty.23 Originally, Article VIII provided that a Review Conference was to be organised five years after the entry into force of the NPT. Until the indefinite extension of the duration of the NPT in 1995, the NPT states simply agreed at every Review Conference to hold another one in five years. With the adoption of the 1995 decision on the strengthening of the review process for the NPT, its Member States formally agreed to hold a Review Conference every five years and to convene PrepComs in each of the three years prior to the Conference.24 In political terms, Review Conferences and PrepComs have allowed for the continuing influence of negotiation and diplomacy after the conclusion of the NPT. In legal terms, combined with the open norms used throughout the provisions of the NPT, they ensure its flexibility. Given that policy is more dynamic than law, Review Conferences are a way for the NPT Member 21  On the NPT, see T Coppen, ‘The Role and Rationale of the Nuclear Non-Proliferation Treaty in the Twenty-First Century’ (2012) 7 Romanian Journal of Science and Politics 2. See also M Shaker, The Nuclear Non-Proliferation Treaty: Origin and Implementation 1959–1979 (­London, Oceana Publications, 1980); ND White, ‘Interpretation of Non-Proliferation Treaties’ in DH Joyner and M Roscini (eds), Non-Proliferation Law as a Special Regime (Cambridge, ­Cambridge University Press, 2012) 87; DH Joyner, Interpreting the Nuclear Non-Proliferation Treaty (Oxford, Oxford University Press, 2011). 22  These conflicts surfaced once again at the 2013 NPT PrepCom. For discussions on the NPT, see summary records of Review Conferences and PrepComs. See also, eg R Broinowski, Flaws in the Nuclear Non-Proliferation Treaty (Australian Institute of International Affairs, 2010); O Njølstad (ed), Nuclear Proliferation and International Order: Challenges to the NonProliferation­ Treaty (New York, Routledge, 2011); DH Joyner, International Law and the Proliferation of Weapons of Mass Destruction (New York, Oxford University Press, 2009); JI Garvey, ‘A New Architecture for the Non-Proliferation of Nuclear Weapons’ (2007) 12(3) Journal of Conflict and Security Law 339; HD Sokolski, Reviewing the Nuclear Nonproliferation Treaty (NPT) (Washington, Strategic Studies Institute, 2010). 23  Article X NPT, on duration and withdrawal, also fulfils an important function in this context: see Den Dekker and Coppen (n 8). 24  Decision 1 of the 1995 Review and Extension Conference of NPT Parties, Final Document, NPT/CONF.1995/32 (Part I), 8.

146  Tom Coppen States to ensure the continued relevance of the treaty because it enables them to establish authoritative interpretation of its articles that may alter over time. Thus, these Conferences should be considered as a method of treaty evolution within the field of arms control.25 Finally, the review cycle incorporates an important element of supervision—a diplomatic procedure for review, assessment and dispute settlement.26 The negotiation records of the NPT reflect this role. Discussions indicate that the function of what was to become Article VIII(3) was to supervise the fulfilment of the obligations of the treaty by its members. Initially, the review procedure of the NPT was linked in particular to the disarmament pledge by the NWS, in order to address concerns of the NNWS that the wording of Article VI was too weak.27 Later, treaty review was understood to cover the NPT as a whole, including all its operative articles and complete preamble. In other words, Review Conferences were meant to take stock of progress on nonproliferation, disarmament and the easing of international tensions; in this way, they also serve as a safeguard for the treaty’s effectiveness.28 The IAEA is the primary international organisation entrusted with the supervision of nuclear non-proliferation norms.29 Article III NPT obliges Member States to conclude safeguards agreements with the IAEA and the IAEA supervises these agreements in accordance with its Statute. Indirectly, it thus contributes to the supervision of the NPT, but it is important to emphasise that the IAEA can only establish and enforce compliance with its own safeguards agreements, not with the provisions of the NPT, which has its own review mechanism. The mandate of the IAEA is much broader than merely supervision of non-proliferation norms. The IAEA was established to ‘accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world’ and, only in that context, it should ensure ‘that assistance provided by it or at its request or under its supervision or control is not used in such a way as to further any military purpose’.30 After the entry into force of the NPT, the safeguards function of the IAEA grew more important. The IAEA now 25 K Ipsen, ‘Explicit Methods of Arms Control Treaty Evolution’ in Dahlitz and Dicke (n 5) 78. 26  ibid, 82. 27 See summary records of the Eighteen Nation Committee on Disarmament (ENDC) ENDC/PV.224, 20. See also, eg statements by Canada (ENDC/PV.226, 8); Burma (ENDC/ PV.250, 29); and the UK (ENDC/PV.326, 17). See also ECB Schnoettle, Postures for NonProliferation­: Arms Limitation and Security Policies to Minimize Nuclear Proliferation (London, SIPRI, 1979). 28  See, eg statements made at the ENDC by the US (ENDC/PV.325 p 9); Sweden (ENDC/ PV.335, 10); Italy (ENDC/PV.338, 11); the UK (ENDC/PV.350, 4; and Romania (ENDC/ PV.376, 10). 29  On the supervision of compliance with arms control agreements in general, see Den Dekker (n 5); EPJ Myjer, ‘The Law of Arms Control and International Supervision’ (1990) 3(3) Leiden Journal of International Law 99; Sur (n 11); Dahlitz and Dicke (n 5). 30  Article II IAEA Statute.

International Law and Iranian Nuclear Crisis 147 spends roughly equal shares of its budget on verification and fostering peaceful applications of nuclear energy respectively.31 The IAEA is an independent international organisation with full legal capacity, privileges and immunities, consisting of three main bodies: the General Conference, the Board of Governors (BG) and its Secretariat.32 As such, its structure does not depart from the general form of international organisations, with a plenary policy-making body, an executive body and an administrative body.33 In 1970, in response to the obligation in Article III(1) NPT, the IAEA created the Comprehensive Safeguards Agreement (CSA), which contained a model on which subsequent individual safeguards agreements between states and the IAEA were to be based.34 Shortcomings of the CSA came to light over the years, however, with the case of Iraq developing a nuclear weapons programme whilst under IAEA safeguards as the most prominent example.35 Some of these shortcomings were of a legal nature: the CSAs were too limited in scope; routine access to declared facilities was limited; and too many safeguard exemptions existed.36 Other deficiencies were practical: the IAEA did not verify the absence of undeclared activities; the safeguards budget was constrained whilst the burden increased; and the development of nuclear technology meant that the IAEA safeguards methods were outdated. To remedy these flaws the IAEA finalised the Model Additional Protocol (AP) in May 1997.37 When a state signs an AP, it serves as an addition to the existing CSA: together they form the integrated safeguards system. By signing the AP a state grants the IAEA rights that go beyond those in the CSA. The purpose of the AP is the same as that of the CSA, which is to enable the IAEA to detect the diversion of significant quantities of nuclear material in a timely manner.38 The AP, however, strengthens the effectiveness and improves the efficiency of the

31  See Resolution adopted by the General Conference, ‘Regular Budget Appropriations for 2012’, IAEA document GC(55)/RES/5 of 22/09/11. On the development of the IAEA, see D Fischer, History of the International Atomic Energy Agency: The First Forty Years (IAEA, 1997) www.iaea.org. 32  Articles V–VII, XV IAEA Statute. 33  See, eg J Klabbers, An Introduction to International Institutional Law, 2nd edn (Cambridge, Cambridge University Press, 2004). 34 IAEA document INFCIRC/153; ND White, The Law of International Organisations (­Manchester, Manchester University Press, 1996). 35  L Rockwood, The IAEA’s Strengthened Safeguards System (2002) 7(1) Journal of Conflict and Security Law 123; MD Rosenthal et al, Review of the Negotiation of the Model Protocol Additional to the Agreement(s) between State(s) and the International Atomic Energy Agency for the Application of Safeguards Volumes I-III (Brookhaven National Laboratory, 2010). 36  These concern small quantities of nuclear material, see IAEA document INFCIRC/153, para 36–37. The AP partially remedies this, see INFCIRC/540, Article 2(vii). 37  IAEA document INFCIRC/540; see also Rockwood (n 35); Rosenthal et al (n 35). 38  IAEA document INFCIRC/153, para 2. The paragraph applies to the AP through its Article 1.

148  Tom Coppen IAEA.39 It reflects the view of the IAEA that effective safeguards depend on the verification of not only the correctness but also the completeness of a state’s declaration, which requires IAEA’s awareness of all nuclear and nuclear-related activities of that state. It also depends on the extent to which inspectors have access to relevant locations.40 The non-proliferation regime has a number of weak spots that are exacerbated by the political problems within the regime. For example, the fact that most nuclear technology can be used for both peaceful purposes and military applications makes it not only extremely hard to supervise compliance with non-proliferation norms in practical terms, but it also leads to disagreements on the relation between non-proliferation and the peaceful use of nuclear energy. At the same time, the enforcement of nonproliferation norms in the BG is sufficiently difficult with the necessary political support. Without it, it is impossible. This is even truer for the UN Security Council (UNSC) which is, as the primary organ responsible for maintaining international peace and security, the ultimate enforcer of arms control instruments, including the IAEA and the NPT.41 This is illustrated by the Democratic People’s Republic of Korea, which has continued and improved its nuclear weapons programme despite UNSC sanctions, leading to nuclear tests in 2006, 2009 and 2013.42 States that have a conflict with the IAEA, moreover, can use feelings of general dissatisfaction with the discriminatory distinction between NWS and NNWS under the NPT to rally support for their cases. This chapter focuses on the matter of Iran’s nuclear activities, which has highlighted these problems.43 Since the 2003 allegations that the Islamic Republic of Iran had been engaging in undeclared nuclear activities, the international community has been concerned about the proliferation danger that Iran poses. This concern is not only shared by Israel or Western states, but also by states in Iran’s direct and 39 

See the preamble of INFCIRC/540. See INFCIRC/540 Articles 4, 5, 9; see also Rosenthal et al (n 35). 41  The IAEA Statute provides that the Board may refer a non-compliant state to the UNSC: see Article XII. In the case of the NPT, the UNSC is involved upon a notice of withdrawal (see Article X NPT). Other multilateral arms control treaties have envisioned a similar role for the UNSC see, eg Article VI and XIII of the BWC; Article VIII.36 of the CWC; or Article IX of the CTBT. The UNSC, in addition, has a potential role to play in the supervision of any arms control arrangement, regardless of the provisions therein, in case it establishes that a violation of such arrangement threatens international peace and security. This is a logical consequence of its position in the collective security system. It can, according to Article 39 of the UN Charter, act autonomously in such cases. 42 See UNSC Res 1718 (2006) UN Doc S/RES/1718; UNSC Res 1874 (2009) UN Doc S/RES/1874; UNSC Res 1928 (2010) UN Doc S/RES/1928; UNSC Res 1985 (2011) UN Doc 1985. 43  For an overview of the Iranian nuclear crisis, see eg M El-Baradei, The Age of Deception 1st edn (New York, Metropolitan Books, 2011); SH Mousavian, The Iranian Nuclear Crisis: A Memoir (Washington, Carnegie Endowment, 2012); N Negm, Transfer of Nuclear Technology under International Law: Case Study of Iraq, Iran and Israel (Leiden, Martinus Nijhoff, 2009); S Chubin, Iran’s Nuclear Ambitions (Carnegie, Washington, 2006). See also ‘Iran Country Profile’ NTI (February 2013) www.nti.org/country-profiles/iran/. 40 

International Law and Iranian Nuclear Crisis 149 indirect neighbourhoods.44 The international pressure against Iran has led to the adoption of several resolutions by both the IAEA and the UNSC.45 Iran, however, continues to defy the demands of both international organisations and disputes the legality of the resolutions adopted against it.46 III.  IRANIAN ARGUMENTS

Overall, Iran emphasises its preparedness to compromise and cooperate with the IAEA, but only on a purely voluntary basis.47 From the Iranian perspective the IAEA has, under pressure from certain Western states, stepped far beyond its legal mandate. Underlying this position is the idea that the rights of the IAEA, as well as the obligations of Iran as an IAEA Member State, are limited. Thus, Iran claims, while it is being ‘bullied’ by the IAEA and the West, it is still prepared to compromise and to reach an agreement on mutually acceptable terms. The key to such a solution is, however, that it is purely voluntary in nature. On the other hand, pressuring and threatening Iran, according to its negotiators, will only lead to further entrenchment of its position and cessation of voluntary cooperation with the IAEA.48 This way of thinking is reflected in several aspects of official reactions by Iranian diplomats to IAEA reports. One example is the debate over the implementation of the modified Code 3.1 of the Subsidiary Agreement to Iran’s Comprehensive Safeguards Agreement (CSA). Iran maintains that the modifications to Code 3.1, which provide that it should have declared the construction of certain of its nuclear facilities before the point at which they were discovered, are merely recommendations by the IAEA, not binding amendments. For this reason, according to Iran, it did not violate its CSA by not declaring these facilities. Another example concerns the mandate of the Secretariat to verify not only the correctness, but also the completeness of Iran’s declarations under its safeguards agreement. In short, this boils down to the question of whether the IAEA may report

44 

See, eg Mousavian (n 43). UNSC Res 1696 (2006) S/RES/1696; UNSC Res 1737 (2006) UN Doc S/RES/1737; UNSC Res 1747 (2007) UN Doc S/RES/1747; UNSC Res 1929 (2010) UN Doc S/RES/1929; UNSC Res 1984 (2011) UN Doc S/RES/1984; UNSC Res 2049 (2012) UN Doc S/RES/2049. See IAEA Board of Governors resolutions GOV/2003/69 of 12/09/03; GOV/2003/81 of 26/11/03; GOV/2004/21 of 13/03/04; GOV/2004/49 of 18/06/04; GOV/2004/79 of 18/09/04; GOV/2004/90 of 29/11/04; GOV/2005/64 of 11/08/05; GOV/2005/77 of 24/09/05; GOV/2006/14 of 4/02/06; GOV/2009/82 of 27/11/09; GOV/2011/69 of 18/11/11; and GOV/2012/50 of 13/09/12. 46  See, eg Iranian Government communications INFCIRC/817 of 24/05/11; INFCIRC/847 of 20/12/12; INFCIRC/849 of 13/03/13; INFCIRC/850 of 25/03/13 www.iaea.org. 47 ibid. 48  See various statements made by Iran at the IAEA BG and NPT Review Conferences; see also Mousavian (n 43). 45  See

150  Tom Coppen that it is unable to verify the absence of undeclared nuclear activities in Iran. This is the basis for the demands by the Secretariat to be granted access to military sites, such as Parchin, which are non-nuclear in nature, but might be the site of nuclear-weapons related testing.49 This chapter, however, focuses on three Iranian arguments that directly touch upon the two fundamental agreements of the international legal non-proliferation regime: the NPT and the Statute of the IAEA. The first argument concerns the question of whether or not Iran is obliged to sign and ratify an AP. Iran, together with a large part of the NAM, as well as states such as Argentina and Brazil, argues that it is a voluntary instrument: it opposes the idea that implementing an AP is in any way an international obligation.50 The discussion focuses on the application of Article III NPT: although it provides that all NPT states must conclude safeguards agreements with the IAEA, in the view of these states this obligation only concerns the implementation of a CSA. Changing this standard by making the implementation of an AP compulsory would be a unilateral reinterpretation of the NPT without any binding legal force. For Iran, this issue is of particular importance as, according to its claims, the IAEA is under the mistaken notion that Iran must implement the AP and it is ‘requesting illegal measures and mislead[ing] the [BG]’ by asserting that Iran is not providing the necessary cooperation, including by not implementing its AP.51 The consequence, according to Iran, of this ‘misrepresentation of Iran’s commitments’ is that any ‘action requested by the Board of Governors in this respect would be unconstitutional, politically-motivated and illegal’. Iran asserts that despite this, it implemented the AP for over two and a half years as a voluntary confidence-building measure.52 The second argument is that the BG resolutions against Iran are ‘­illegal’ because the IAEA has violated Article XII.C of its own Statute by establishing non-compliance and referring Iran to the UNSC.53 In other words, the BG resolutions in question contravene the applicable rules of the institutional legal framework of the IAEA. This assertion rests on three arguments: —— Non-compliance can only be found by the BG where it has been determined previously by the Secretariat. In this case, the Secretariat never found Iran to be in non-compliance with its safeguards obligations; 49 See D Joyner, ‘Iran’s Nuclear Program and the Legal Mandate of the IAEA’ Jurist (9 November 2011) jurist.org/forum/2011/11/dan-joyner-iaea-report.php; C Ford, D Joyner and A Persbo, ‘Iran and the Bomb: The Legal Standards of the IAEA’ Colloquium, Bulletin of the Atomic Scientists (November–December 2012) www.thebulletin.org. 50  See, eg, Recommendation 33 of the NAM Working Paper NPT/CONF.2010/WP.46 of 28/04/10; Statement by Brazil, NPT/CONF.2010/MC.II/SR.1 of 10/06/10. 51  INFCIRC/849 (n 46) para 71. See also, eg, INFCIRC/847 (n 46) para 68–74. 52  INFCIRC/849 (n 46) para 72–73. 53  INFCIRC/849 (n 46) para 88.

International Law and Iranian Nuclear Crisis 151 —— According to the Statute and Article 19 of the CSA between Iran and the IAEA, a reference to the UNSC is only possible ‘if the Board, upon examination of relevant information reported to it by the Director General, finds that the Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement, to nuclear weapons or other nuclear explosive devices’.54 In the case of Iran, this condition cannot be fulfilled, as the DG has consistently reported that no declared nuclear material in Iran has been diverted towards military purposes; —— The reports of the IAEA Director General have not described Iran’s nuclear programme as a ‘threat to peace and security’—a statutory condition for referral to the UNSC under Article III.B.4 of the Statute. Third, Iran argues that its right to use nuclear energy for peaceful purposes under Article IV NPT, which is central to the pillar-structure of the treaty, is violated by the adoption of various BG and UNSC resolutions.55 In its reaction to the report on its nuclear activities by the IAEA Director General of February 2013, Iran put forth this argument in more detail, focusing on the demand of the IAEA BG that it suspend its uranium-enrichment related activities.56 While suspension of enrichment has been a demand of the IAEA, the UNSC and Western states since 2003, Iran has always maintained that its right to conduct uranium enrichment is protected by Article IV NPT. The Iranian point of view on the applicable legal instruments, and its opposition to a majority of the international community therein, provides useful insight into the purpose and nature of arms control law. First, it demonstrates how the development of the applicable rules is required in order to keep an arms control regime, in this case the non-proliferation regime, effective. On the other hand, it also indicates that concerns about national sovereignty can fuel opposition to such developments. This means that the flexibility that arms control instruments need in order to remain effective is at direct odds, in this case, with the desire of states for legal certainty and their aversion to changing standards. Iran’s legal approach, it has been noted, encompassed a harsher stand towards the international community on the nuclear crisis, which was primarily conceived by the more hard-line Ahmadinejad Government.57 Furthermore, its constant emphasis on its ‘nuclear rights’ has gained it some ­measure

54 

INFCIRC/214 of 13/12/1974, para 19 www.iaea.org. eg, the Working Paper submitted by Iran to the 2013 NPT PrepCom NPT/ CONF.2015/PC.II/WP.39 of 19/04/13. 56  Enrichment is one of the most significant steps towards the fabrication of a uranium weapon and is therefore regarded as one of the most ‘proliferation-sensitive’ nuclear-related activities. 57  See Mousavian (n 43). 55 See,

152  Tom Coppen of support from other NAM states that are concerned that the more ­powerful states at the IAEA will be capable of dictating the terms of nuclear safeguards if they remain unopposed. A similar strategy was followed by Syria, when it defended itself against allegations of non-compliance with its own safeguards obligations.58 Both cases have led to significant tension and unrest within the IAEA framework. IV.  ARTICLE III OF THE NPT AND THE ADDITIONAL PROTOCOL

This section deals with the question of whether or not Article III NPT, containing the safeguards and obligations of states, compels its Member States to conclude an AP in addition to their CSA. This is different from the question of what type of agreement an AP is: NPT Member States have agreed that the AP, once concluded, is a binding agreement between the IAEA and the state concerned.59 The issue at hand here, however, is whether Iran is obliged, as an NPT Member State, to both sign and ratify an AP. While Iran and the NAM are of the opinion that regarding the AP as anything else other than a voluntary confidence-building measure would be an unacceptable unilateral reinterpretation of the NPT, other states argue that a CSA with AP represent the current verification standard under Article III.60 To judge these claims it is necessary to turn to the general rules of treaty interpretation of the Vienna Convention of the Law of Treaties (VCLT).61 In short, the VCLT provides that the interpretation of treaty terms shall take into account subsequent agreement and practice: a treaty’s travaux préparatoires are of secondary importance in its interpretation.62 In terms of subsequent agreement, form is subject to intention in the sense that what form such an agreement takes matters less than whether or not a manifest intention exists, which the understanding between treaty parties would

58 See, eg DG report GOV/2008/60 (19/11/2008); BG resolution GOV/2011/41 (09/06/2011). 59 See, eg para 17 of the NPT 2010 Review Conference Final Document, NPT/ CONF.2010/50 (Vol I). While Iran signed an AP, it never ratified it and ceased its voluntary implementation of the measures therein in 2005. It does not consider itself bound to the provisions of its AP and Article 18(a) of the Vienna Convention of the Law of Treaties (VCLT) supports this claim. 60  See, eg NPT/CONF.2010/28 (03/05/2010); NPT/CONF.2010/35 (05/05/2010); NPT/ CONF.2010/48 (28/05/2010); NPT/CONF.2010/WP.69 (11/05/2010). 61 See Articles 31 and 32 VCLT. As the VCLT codifies customary law, it applies ­retroactively to the NPT: Avena and Other Mexican Nationals (Mexico v United States of America) (­Judgment) [2004] ICJ Rep, para 83; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore), (Judgment) [2008] ICJ Rep, para 37. 62  International Law Commission (ILC), Draft Articles on the Law of Treaties with Commentaries, Yearbook of International Law, Vol II (1966) 19. See also White (n 21).

International Law and Iranian Nuclear Crisis 153 constitute an agreed basis for that treaty’s interpretation.63 ­Subsequent practice must be ‘concordant, common and consistent’, e­stablishing a ‘discernible pattern implying the agreement of the parties regarding its interpretation’.64 Indications as to the role of subsequent practice and agreements in the interpretation of a treaty might also be found in that treaty itself.65 In this context, and in light of the significant role of the Review Conferences to review, strengthen, implement and ensure compliance with the NPT, it must be understood that the conclusions and recommendations thereof were indeed intended to be authoritative, although they were never meant to have any direct legal effect. Review Conferences, therefore, play an important role in the interpretation of the NPT in the context of establishing subsequent agreement and practice. Although the NPT cannot be reinterpreted by referring to a Final Document alone, recurring agreement at Review Conferences could indicate subsequent agreement in the sense of Article 31 VCLT. Such agreement, if supplemented by common, concordant and consistent practice of the NPT Member States, is a crucial element in establishing the correct meaning of the terms of the NPT. The history of the treaty’s negotiation is, in such case, only of secondary relevance. There is, however, no direct subsequent agreement or practice regarding what is the verification standard of Article III NPT. Until 1985 states were in agreement that Article III demanded the implementation of a CSA, but that consensus disappeared with the development of the AP. Review Conferences have, however, reflected consistent consensus on a related issue. At every single conference, NPT states have agreed that the safeguards required under Article III should evolve to keep pace with technological or political developments. This includes Review Conferences that did not manage to produce a consensus Final Document, as well as those held after the AP had come into existence. NPT states agreed at every opportunity that the safeguards system should be developed so that its efficiency and effectiveness may be improved.66 In 1990, the NPT states expressed their desire for IAEA safeguards reform in a report that called on the Conference to ‘affirm its determination to strengthen further the barriers against the proliferation of nuclear weapons’, inviting the IAEA to consider studying new safeguard approaches including, for example,

63  Kasikili/Sedudu Island (Botswana v Namibia) (Judgment) [1999] ICJ Rep; RK Gardiner, Treaty Interpretation (Oxford, Oxford University Press, 2008) 217. 64  Japan—Taxes on Alcoholic Beverages, WTO Appellate Body, Report, AB-1996-2 (4 October 1996) 13. 65  Case concerning rights of nationals of the United States of America in Morocco (Judgment) [1952] ICJ Rep, 211. 66 NPT/CONF/35/I, Annex I, 3; NPT/CONF.III/64/I, Annex I, 4–5, para 12; NPT/ CONF.1995/32 (Part I), Annex, Decision 2, para 11 on 11; NPT/CONF.2000/28 (Part I) para 16; NPT/CONF.2010/50 (Vol.I), Part I, Action 32, 26.

154  Tom Coppen randomised inspections and calling for the universal application of IAEA safeguards to all peaceful nuclear activities in all states.67 These recommendations were linked to the actual process of the creation of the AP by the 1995 Conference, which further commended the IAEA for its work.68 In 2000, at the first Review Conference after the AP was adopted, all NPT states fully endorsed the Protocol, which it considered to be an integral part of the IAEA safeguards system.69 The background to the evolving nature of Article III can be found in the travaux préparatoires of the NPT. The negotiation process reflects a discrepancy between the purpose and the scope of the Article. Its purpose was formulated very broadly as ensuring the non-diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.70 The material scope of the Article, by contrast, was restricted to the flow of nuclear material within the state. This was the basis of the system underlying the CSA-based verification system of the IAEA, which transpired to be too limited to achieve the purpose of Article III(1). Although they could not predict the weaknesses of the CSA that would eventually surface, states did seem to realise, back in 1968, that at some point in the future the scope of Article III(1) NPT may have to be extended in order to fully ensure the effective functioning of the obligation therein. Records of NPT negotiations at both the Eighteen-Nation Committee for Disarmament (ENDC) and the UN General Assembly (UNGA) support this claim. The US representative, for example, stressed that no treaty amendment would be required to revise the IAEA safeguard documents, a statement for which he received support from various other delegations.71 Thus, the concept of IAEA safeguards evolving to keep pace with technological or political developments was embedded in Article III(1) at the time of the conclusion of the NPT. In conclusion, not only have the NPT Member States continuously called for the improvement of IAEA safeguards, but they have also given the IAEA a mandate to achieve such improvements in 1990 and 1995, culminating in the creation of the AP. It has been agreed by the same Member States that the CSA alone cannot fulfil the purpose of Article III(1), which includes verifying the absence of undeclared nuclear activities in a state. The only reason that the AP is a separate document, and thus requires a separate ratification by states, is that the IAEA found that it did not have 67 

Report of Main Committee II, adopted by consensus, NPT/CONF.IV/MC.II/1.

68 NPT/CONF.1995/MC.II/1. 69 

NPT/CONF.2000/28 (Part I). See, eg, statements by the USSR, ENDC/PV.357, 8–9 or ENDC/PV.370 para 60; and the US, ENDC/PV.357, 15–16 or ENDC/PV.370 28. 71 ENDC/PV.357 para 50 ENDC/PV.329, para 4; ENDC/PV.358 para 70. See also, eg, verbatim records of the discussions of the NPT at the First Committee of the 1968 UNGA: A/C.1/PV.1561–72. 70 

International Law and Iranian Nuclear Crisis 155 the authority to unilaterally update the CSA and thereby interpret Article III(1). Arguing that the AP is a voluntary measure is incompatible with the progressive nature of Article III(1), which all NPT states have repeatedly emphasised and mandated the IAEA to implement. Article III(1) demonstrates how the NPT reconciles requirements of both flexibility and legal certainty: it allows external factors to influence the implementation of the treaty, but on the other hand safeguards states’ concerns that their sovereignty will be limited without their consent. In this case, however, there has been consistent consensus regarding the progressive nature of the treaty provision in question. The Iranian argument is therefore contrary to a correct interpretation of the NPT: according to both subsequent agreement and its travaux ­préparatoires, in implementing Article III NPT one must acknowledge the evolving nature of safeguards, which in turn requires states to accept that the IAEA safeguards system must develop in order to remain capable of fulfilling the goals of preventing proliferation. In other words, the demand of the IAEA BG does not violate the NPT: Iran is, if it wants to implement the obligations of the NPT in good faith, under an obligation to sign and ratify an AP, in which case it will be bound by the provisions therein. This conclusion still leaves open the question on what institutional grounds the BG may demand Iran to implement an AP. This question is discussed later in this chapter. V.  THE IAEA BOARD OF GOVERNORS

The second Iranian argument against the validity of the BG resolutions is that they were adopted in violation of the applicable institutional and procedural legal framework of the IAEA. In this context, Iran has referred to Article XII.C of the IAEA Statute, as well as to the CSA. Provisions in the constituent document or other legal texts of an international organisation regarding specific competences of its organs are often unclear or vague, and the IAEA is no exception. Therefore, in order to determine whether the actions of the IAEA BG are ultra vires, it is necessary to establish whether or not they reflect a correct interpretation of the relevant IAEA legal documents in light of subsequent practice. Although the VCLT applies to the IAEA Statute, the context is different from that of the NPT.72 Constituent documents of international organisations are treaties that establish a subject of international law with specific functions and powers: they create a living body that might evolve beyond the intentions of its creators, for example, in order to react to unforeseen flaws in its legal framework,

72 

Article 5 VCLT.

156  Tom Coppen or political or technological developments.73 In the case of the IAEA, the introduction of the NPT safeguards system is such a development. Thus, the adaptation of the constituent document of an international organisation may be necessary. The most logical mechanism for doing so is a formal amendment procedure. Such procedures combine flexibility and legal certainty, allowing for the organisation to react to changing circumstances that require institutional developments, while the formal requirements for amendment alleviate states’ concerns about losing part of their sovereignty to the organisation. Unfortunately, this is also the main drawback of such procedures. They are normally cumbersome, inflexible and therefore impractical.74 Moreover, if an amendment is not accepted by all Member States, it might lead to procedural problems at a later stage.75 A second option for revision of the constituent document of an international organisation is through legislation. The organs of an international organisation can use their authority to issue regulations that adapt the constituent document of the organisation. This does not mean that the constituent document itself has to be amended: through its regulatory powers an organ may, for example, issue an authoritative interpretation of the constituent document that can adapt it to changing circumstances. In the context of the IAEA, the CSA constitutes an adaptation of the Statute in certain ways.76 In itself, INFCIRC/153, although approved by the IAEA Member States, is not legally binding: it is a model law that does not have direct external effects. Rather, the individual agreements between states and the IAEA, based on INFCIRC/153, bind the parties involved.77 The last two options for the revision of constituent documents are interpretation and modification. The interpretation of a constituent document is to ‘select one particular alternative among a multitude of possible meanings, [enabling] the interpreting agency to adapt institutional arrangements of an international organisation to changing circumstances’.78 This does not

73 

Klabbers (n 33) 66. See, in this case, Article XVIII of the IAEA Statute. 75  See Klabbers (n 33); HG Schermers and NM Blokker, International Institutional Law: Unity within Diversity, 3rd edn (The Hague, Martinus Nijhoff, 1995); A Chayes and AH Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Harvard University Press, 1995). 76  Eg, it changes the scope of the IAEA safeguards system for NPT Member States. Instead of preventing the diversion of nuclear material to military purposes, the CSA aims to prevent diversion to explosive purposes. This means that, eg, naval propulsion is not covered, but peaceful nuclear explosions are. 77 EP Hexner, ‘Teleological Interpretation of Basic Instruments of Public International Organizations’ in S Engel and RA Métall (eds), Law, State and International Legal Order: Essays in Honour of Hans Kelsen (Knoxville, University of Tennessee Press, 1964); White (n 34); ­Klabbers (n 33). Iran’s safeguards agreement with the IAEA, which has been in force since 1974, can be found at the website of the IAEA: see document INFCIRC/214 of 13/12/1974, www.iaea.org. 78  Hexner (n 77) 124. 74 

International Law and Iranian Nuclear Crisis 157 include, however, the authority to ‘exceed interpretative radius by selecting option outside admissible meanings’, which amounts to a modification of the document.79 In case of a modification, the consent of the Member States of the organisation is required in order for it not to be ultra vires. It is a general principle of international institutional law that the organs of an international organisation are primarily responsible for the interpretation of its constituent document.80 Both interpretation and modification may take place by way of established practice of the international organisation in question if such practice is supported by the Member States, consistent and uniform.81 This does not, however, mean that a large number of comparable cases are required to establish a certain practice: depending on the support of the Member States of the organisation, one instance can be enough. The IAEA should be considered ‘in its own circumstances’.82 In this case, it means that the existence of opposition against a certain practice can be relevant: although such opposition could vary from minor to substantial, it might not be significant enough to prevent the adoption of a non-compliance resolution.83 The existence of a substantial minority opposition, however, weakens the legal force of the practice in question; acceptance of the majority vote does not ‘commit dissenters to the principle on which such a majority acts’.84 At the same time, minority opposition against a modification of the IAEA Statute by the BG can render it ultra vires. Did the BG act ultra vires by adopting a non-compliance resolution that was not based on a non-compliance finding by the Secretariat, as Iran claims? Article XII.C provides that the inspectors ‘shall report any noncompliance to the Director General who shall thereupon transmit the report to the Board of Governors. The Board shall call upon the recipient State or States to remedy forthwith any non-compliance which it finds to have occurred’.85 While unclear about the exact relation between the non-compliance findings of the Secretariat and the BG, it is within the range of admissible meanings of the text to argue that one needs not necessarily be based on the other. Nor does the CSA suggest this: it provides that the BG may only take actions under Article XII.C based on reports by the IAEA Director General, but does not state that these need to conclude that the state in question is in non-compliance.86 This is consistent with the separation 79 ibid.

80  Klabbers (n 33) 91, 101; CF Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd edn (Cambridge, Cambridge University Press, 2005); P Sands and P Klein, Bowett’s Law of International Institutions, 5th edn (London, Sweet and Maxwell, 2001). 81  See Hexner (n 77); Sands and Klein (n 80) 456; Klabbers (n 33) 91. 82  Sands and Klein (n 80) 456. 83  IAEA BG resolutions can be adopted by simple majority, Article VI.E of the Statute. 84  Amerasinghe (n 80) 51–52. 85  Emphasis added. 86  IAEA document INFCIRC/153, para 19.

158  Tom Coppen between the roles of the Secretariat and the BG: the former reviews states’ compliance with their safeguards obligations, the latter makes the final assessment.87 Corresponding with the administrative character of the Secretariat, it analyses and evaluates safeguarding information, translating technological data into a legal-political qualification. This qualification may be one of ‘non-compliance’, or, as it did in recent cases, the Secretariat may limit itself to concluding that states failed to meet their safeguards obligations.88 Its 2011 report on Syria did not even go this far: in this case, the Secretariat merely stated that Syria had ‘very likely’ built a reactor that should have been declared to the IAEA.89 After the review, the BG makes the final assessment on whether or not states are formally in compliance with their obligations, in accordance with its executive, political character. It must be concluded that nothing in the IAEA Statute or practice prevents it from doing so without a ‘non-compliance’ qualification from the Director General. Amongst IAEA Member States, there is little opposition to this practice, except in the case of Syria, where many found that the ‘very likely’ conclusion was too thin a basis for a non-compliance resolution by the BG. In both the cases of Iran and Libya, however, such sentiment was shared by only a small number of states. Thus, the Iranian argument does not stand: the BG did not act ultra vires by interpreting the Statute as it did; moreover, there was no significant opposition, in this case, to the absence of a non-compliance finding by the Secretariat. Second, can the BG make a finding of non-compliance if the Secretariat concludes that all declared material remains in peaceful uses? The first non-compliance resolution was based primarily on a 2003 report by the Director General, which asserted that it would ‘take some time before the Agency is able to conclude that Iran’s nuclear programme is exclusively for peaceful purposes’.90 The latest report before the 2005 non-compliance resolution concluded that it was not possible to verify that there were no undeclared activities in Iran; the findings of the reports by the Director General have, since then, not varied much.91 In other words, while the IAEA concludes that Iran’s declarations under its CSA are correct, it cannot conclude that they are complete as well: Iran is critical of this conclusion because it allegedly violates paragraph 19 of its CSA.92 There is nothing

87 

Den Dekker (n 5). the conclusions in the cases of on Iraq and the North Korea (Democratic People’s Republic of Korea) (DPRK) with those on Iran and Libya: see IAEA documents GOV/2530 para 13; INFCIRC/419 para 28; GOV/2005/77 para 1; GOV/2004/12. 89 GOV/2011/30. 90  GOV/2005/77, para 1; GOV/2003/75, para 52. 91  GOV/2005/67, para 51; see also, eg GOV/2013/6, para 51. 92  As pointed out above, this chapter does not deal with the question of whether the Secretariat has the mandate to investigate the completeness of Iran’s reports, but with the question of whether the BG may make a non-compliance finding based on such information. 88 Compare

International Law and Iranian Nuclear Crisis 159 in this provision, however, that supports such an argument. First, it mentions that the BG must make its decision upon examination of ‘relevant information’ provided to it: this wording is not exhaustive, meaning that the BG can take into account other information apart from the fact that all declared nuclear material in Iran has remained in peaceful purposes. Second, the BG must reach the conclusion that the IAEA is not able to verify that there has been no diversion of material required to be safeguarded under the CSA: this means, as paragraph 2 of the CSA clarifies, all such materials, regardless of whether they are declared or not. Third, paragraph 19 of the CSA requires the BG to take account of the assurance provided by the safeguards measures applied when making its decision. Clearly, this means it can make its own judgment on whether or not the application of the CSA in Iran guarantees the absence of undeclared activities. Thus, the BG is not incorrect with its interpretation of paragraph 19 of the CSA by finding that Iran is in non-compliance with its safeguards obligations despite the conclusion of the Secretariat that no declared material was diverted; therefore, it cannot be concluded that the BG violated the IAEA Statute. The final procedural argument by Iran was that the BG had not concluded that the Iranian nuclear programme is a threat to international peace and security. While this is true, there is nothing in the IAEA Statute to indicate that this is, in any way, a formal requirement for referral to the UNSC. Article III.B.4 refers to matters that are ‘within the competence of the UNSC’, this does not mean that such matters must automatically be a threat to peace and security. In fact, it is the UNSC, not the BG, which must make this determination. Article XII.C does not mention any threat to peace and security, nor does the CSA. In the context of the 2011 non-compliance resolution on Syria, a number of states did oppose the adoption of such a resolution because there was no immediate threat to international peace and security, since the nuclear installation in question had been destroyed and so did not pose any danger of proliferation. None of these states, however, claimed that the lack of such a threat would make a non-compliance resolution illegal. Thus, although the military and security-related impact of a violation of the safeguards regime can be a factor in the political decision to make a formal assessment of compliance or non-compliance, it must not be regarded as a procedural prerequisite for such a finding. VI.  THE INALIENABLE RIGHT TO PEACEFUL USES OF NUCLEAR ENERGY

The third Iranian argument under discussion is that its rights to peaceful uses of nuclear energy under Article IV NPT are violated by the

160  Tom Coppen r­ esolutions of the BG, in particular by its demand for the suspension of uranium enrichment. In order to determine whether this is indeed the case, the first matter that needs to be settled is whether Article IV NPT, which confirms the NPT states’ inalienable right to use nuclear energy for peaceful purposes, protects the right of states parties to enrich uranium. Article IV(1) of the NPT is often understood as creating a right for NPT states parties to use nuclear energy for peaceful purposes in exchange for their abstention from the development of nuclear weapons. This is erroneous, since this right is a sovereign right that any state possesses regardless of NPT membership. Rather, it is suggested that Article IV(1) demarcates the line between peaceful uses of nuclear energy and nuclear proliferation. It limits the former by stating it can only be exercised in accordance with Articles I, II and III.93 Article IV(1), however, also codifies the rule that the right to nuclear energy for peaceful purposes can only be limited by rules emanating from the NPT itself. Thus, it limits and safeguards the right to peaceful nuclear energy at the same time. The exact scope of ­Article IV(1) is unclear: there is no agreement on what particular activities are permitted and protected under the NPT. No subsequent agreement has been reached at NPT Review Conferences; in this case, the rules of treaty interpretation dictate a closer look at the NPT negotiation records, in particular those dealing with Article II. After all, non-proliferation obligations limit the application of Article IV(1): thus, ‘peaceful use’ ends where ‘manufacture’ of a nuclear explosive begins. The NPT does not define at what point a civilian nuclear programme should be regarded as the manufacturing of a weapon. This means, ­simply put, that one way to interpret the treaty is to regard all nuclear ­activities as peaceful until a nuclear explosive device is actually assembled. To ­prevent such interpretations, the USSR proposed to prohibit ‘preparations to manufacture’ a nuclear weapon, but the proposal was rejected. The Swedish representatives at the negotiations asked what was exactly going to be prohibited by the treaty, wondering at which point of the process of nuclear weapon manufacture it would be ‘reasonable and feasible’ to introduce international blocking.94 In the end, the travaux préparatoires of the NPT indicate that apart from peaceful nuclear explosives, which would be regulated by Articles II and V, no type of nuclear equipment, technology or activity should be considered as beyond the scope of ­Article IV(1). ­During the treaty negotiations, several states issued statements that corroborate this conclusion: any non-explosive activity, including those

93  Subsequent agreement and practice link Article IV to Article III NPT. See, eg the 2010 Review Conference Final Document, NPT/CONF.2010/50 (Vol 1), para 31. 94 See the 1966 USSR draft of the NPT, document ENDC/164; statements by Sweden, ENDC/PV.243, 11–12; ENDC/PV.342, 10–12.

International Law and Iranian Nuclear Crisis 161 which are now considered ‘sensitive’, such as uranium enrichment or the extraction of plutonium from spent fuel, is allowed under the NPT.95 This means that Iran does have a right to enrich uranium that is protected by Article IV NPT. Since no subsequent agreement was ever reached on this topic, this is the correct interpretation of the NPT to date. The next question is whether the BG resolutions demanding Iran to suspend its enrichment activities are violating this right. It has been stressed already that the IAEA does not have a mandate to supervise or implement the NPT; this means that the BG does derive any right to suspend the rights under Article IV from the NPT itself. The Statute, on the other hand, mentions that the BG may take enforcement measures in case a non-compliant state fails ‘to take fully corrective action’.96 Paragraph 18 of the CSA elucidates this phrase, providing that the BG can call upon a state to take any action that it deems ‘essential and urgent’ in order to ensure verification of the non-diversion of peaceful nuclear material. ­Paragraph 19, of the CSA obliges the BG, in the context of taking action under ­Article XII.C of the Statute, to afford the non-compliant state ‘every reasonable opportunity’ to furnish the BG with reassurance of its compliance. In other words, the BG may call upon a state to take any corrective measure based on the CSA; it may also request such actions as non-binding­, confidence-building measures. It is accepted practice within the IAEA that it does both: while the BG has formulated a number of strict demands on Iran over the years, it has also included numerous provisions in its resolutions that are slightly more softly worded. These ‘request’, ‘urge’, or ‘decide that it is essential’ or ‘urgent’ that Iran take a certain course of action. Such requests included the provision of information and access to the IAEA; reconsideration of the decisions to begin testing at a conversion facility or construct a heavy-water facility; but also the request to suspend uranium enrichment or to implement the measures of the AP.97 In its more recent resolutions, the BG points out the lack of confidence in Iran’s intentions and invites it to engage in constructive discussions for a peaceful resolution to the ­matter.98 The differences between BG demands and requests are not always clear, for example, the BG requests that Iran implement an AP, but also calls upon it to implement the UNSC resolutions, which also includes the implementation of measures in the AP. It must be assumed, though, that the BG recognises a difference between 95  See, eg statement by Chancellor Brandt to the German Bundestag, 1/02/67 in Documents on Disarmament 1967 (Washington DC, ACDA, 1967) 51; Aide-mémoire by Switzerland to the ENDC, document ENDC/204, 1966; Statement by Foster to the US Senate Foreign Relations Committee, 10/07/68 in Documents on Disarmament 1968 (Washington DC, ACDA, 1968). See also Shaker (n 21) 251. 96  Article XII.C IAEA Statute. 97  GOV/2004/49, para 3, 8; GOV/2004/79, para 4. 98  See GOV/2006/14, para 5; GOV/2011/69, para 4; GOV/2012/50, para 4.

162  Tom Coppen confidence-building measures and corrective actions. In this context, the requests by the BG were attempts to find a peaceful resolution to the dispute with Iran within the framework of the IAEA through engagement and confidence-building.99 The BG cannot base a demand for Iran to suspend uranium enrichment on the NPT, since it does not possess the competence to suspend or issue legally binding demands that effectively suspend Article IV, which includes uranium enrichment activities under its scope. This does not mean, h ­ owever, that the BG cannot request such suspension as a ­confidence-building measure under Article XII.C of the Statute and paragraph 19 of the CSA. Iran is free to disregard such requests, but it should be noted that doing so may ultimately lead to the adoption of corrective measures, such as suspension or curtailment of IAEA assistance.100 It is important to point out that this is not the case for similar demands made by the UNSC, which were made under Chapter VII of the UN Charter and are therefore legally binding.101 The competences and powers of the UNSC and the IAEA BG must be clearly distinguished, as in this context references to the UNSC in resolutions by the BG can create confusion. Looking back at the BG demand for the implementation of an AP, a different legal situation may be discerned. It was concluded that the implementation of both CSA and AP represent the verification standard under the NPT. In other words, the BG is not limiting or violating Iran’s rights under the NPT, and so therefore not acting ultra vires when it demands the implementation of an AP as a corrective measure under Article XII.C of the Statute and paragraph 18 of the CSA.102 VII. CONCLUSION

It is argued that, at times, the role of international law in the context of issues that have an overriding impact on the national security of states, such as the non-proliferation of nuclear weapons, is limited or even negligible. Knowledge of the applicable international law amongst diplomats, delegates, researchers, policy makers and non-governmental organisations is often limited. At the same time, those with a realist view on nuclear non-proliferation argue that even if such law exists, it will always be s­ ubservient to national and international stability and security

99 

Conversations with officials at Permanent Missions in Vienna, 2013. See Article XII.C IAEA Statute. 101  See, eg B Simma, The Charter of the United Nations: A Commentary, 2nd edn (Oxford, Oxford University Press, 2002) Vol I. 102  See also C DeFrancia, ‘The continuing role of item-specific agreements in the IAEA safeguards system’ (2011) 88 Nuclear Law Bulletin 33. 100 

International Law and Iranian Nuclear Crisis 163 ­considerations.103 The international dispute over the nuclear activities in Iran is interesting because the Islamic Republic, in its defence, uses mostly legal arguments to contest the legitimacy of the actions taken against it. This is logical since Iran is, in this conflict, the weaker party in political, economic and military terms: the law is traditionally an instrument to protect weaker states from arbitrary actions by stronger states. Iran has attempted to change the discourse of the discussion over its nuclear activities towards its legal rights and obligations under the international nuclear non-proliferation regime. Nevertheless, the preceding paragraphs illustrate that at least part of the Iranian argument in defence of its position, specifically those that relate directly to major legal instruments, such as the NPT and the IAEA Statute, can be proven faulty. What does this say about the character and nature of international law in the context of nuclear non-proliferation? First, the analysis of the applicable provisions of the NPT and the IAEA Statute necessary for an assessment of the Iranian arguments proves that this particular field of arms control law is capable of evolution and development. Because of the potential impact on national security of its subjects, arms control regimes must be able to maintain their relevance in the face of economic, political, technological or military developments. The NPT, with its system of Review Conferences and PrepComs, possesses this adaptability. In legal terms, such conferences are a source of subsequent agreement and practice that preserve the relevance of the NPT by interpreting its provisions in order to adapt to changing circumstances in ways that the NPT members deem necessary. Such developments take time as they require repeated agreement and practice. That they have maintained the status of the NPT by evolving it throughout its 40-plus years, however, is indisputable. In addition to Articles III(1) and IV(1), there are several other provisions of the NPT that have likewise been adapted. For instance, a number of legal loopholes in Articles I and II, such as the possibilities of providing assistance to a nuclear weapons effort of a NWS or a non-NPT member by another NWS, or that of a NNWS providing assistance to a nuclear weapons programme in any other state, were closed off by subsequent Review Conferences.104 The use of nuclear explosions for peaceful purposes was banned.105 Also, as mentioned previously, Article VI was confirmed as

103  On realism, see eg J Snyder, ‘One World, Rival Theories’ (2004) 145 Foreign Policy 52; TV Paul, RJ Harknett and JJ Wirtz (eds), The Absolute Weapon Revisited. Nuclear Arms and the Emerging International Order, 4th edn (Cambridge MA, MIT Press, 2001); SD Krasner, ‘­Sovereignty’ (2001) 122 Foreign Policy 20; C Brown and K Ainley, Understanding International Relations, 4th edn (New York, Palgrave MacMillan, 2009); S Walt, ‘International Relations: One World, Many Theories’ (1998) 110 Foreign Policy 34. 104  Coppen (n 21). 105  Article V is interpreted in light of the ban on all nuclear explosions in the CTBT: see NPT/CONF.2010/50 (Part I), para 78.

164  Tom Coppen being primarily the burden of the NWS. The Review Conference cycle also provides a way to reconcile the legal framework of the NPT with the impact of politics on arms control law by allowing the latter to influence the former. Second, despite this evolving nature, states’ concerns for their national sovereignty are respected in the field of nuclear arms control law. The ­argument that the requirement of a CSA plus AP as the verification standard under Article III is a unilateral interpretation of the NPT and a violation of the sovereign right of states not to enter into agreements against their will is a misrepresentation of the legal situation. Rather, states have agreed to a developing system of safeguards, within the range of the object and purpose of the NPT. In this sense, the opposition to the AP is contrary to implementing the NPT in good faith. On the other hand, the scope of Article IV(1) has never changed due to consistent opposition to such alterations to its interpretation. For this reason, Iran, just as any other NPT state, possesses an inalienable right to enrich uranium. Thus, the NPT provides both flexibility and legal certainty to its Member States.106 It is important to note that within the IAEA legal framework there is more emphasis on flexibility and the development of the ­organisation, than on legal certainty. This difference may be explained by the fact that the IAEA is an international organisation, a living subject of international law. It is easier to develop a certain practice within the IAEA BG due to its majority vote rule. IAEA organs have, moreover, a significant margin of ­appreciation when it comes to interpreting the provisions of the IAEA Statute. In other words, the position of minority blocs within the IAEA legal framework is weaker than within that of the NPT. Even substantial groups of states with dissenting positions cannot prevent a certain practice being adopted if there is a majority in favour of it, nor can they successfully claim that such practice is ultra vires if it is within the confines of interpretation of the Statute. They can, however, weaken the political strength of such practice. This chapter has demonstrated that, at the very minimum, a solid legal counter-argument against the Iranian position is possible. In practice, however, those critical of Iran’s nuclear programme have largely failed to make such an argument. Despite the fact that Iran has issued several written communications, declarations and explanatory notes over the years that fundamentally put forth the same legal arguments, and despite the fact that these arguments form the core of Iran’s public defence of its nuclear programme, neither discussions at the IAEA BG nor the NPT conferences reflect a thoroughly thought-out legal response by Western states. Resolutions are normally limited to reiterations of expressions of serious

106 

Coppen (n 21).

International Law and Iranian Nuclear Crisis 165 concerns regarding aspects of the Iranian nuclear programme, general references to Articles I, II and IV NPT, assertions that Iran violated its safeguarding obligations and political and strategic considerations, such as the lack of confidence in Iran’s good faith as well as the proliferation risks that the Iranian nuclear programme allegedly poses.107 In this way, the role that international law can play within the nonproliferation­regime, and especially in crises such as these, is overlooked. While not wishing to ignore the fact that international legal considerations alone will not bring an end to this dispute, several advantages of an increased emphasis on the legal aspects of the Iranian nuclear programme can be identified. First, it might be of significant diplomatic value. It was pointed out that the legitimacy of the programme, as well as its conformity with international law, is the cornerstone of the public position of the Islamic Republic. Conversely, attacking the legitimacy of international actions taken against it is its main line of defence against international pressure, as well as IAEA reports and resolutions from the BG or the UNSC. Pointing out the flaws in Iran’s arguments would weaken its position. Moreover, it could affect the positions of NAM states that have grown hesitant towards the approach to the Iranian nuclear crisis taken by the international community, especially in the context of their own rights under the non-proliferation regime. Respecting the arguments put forth by Iran, which are based on these rights, by acknowledging and discussing them, instead of merely brushing them aside, would prove to third party states that these rights are safeguarded and respected. Ignoring them, by contrast, may lead to disputes and weaken the perceived legitimacy of the system. Both the right to peaceful uses of nuclear energy and the protection from arbitrary treatment should be positive incentives for states to support the nuclear non-proliferation regime. A system of benefits of compliance with the rules, in combination with costs for non-compliance, would encourage states to decide that it is in their interest to do the former. This would not only solve the Iranian nuclear crisis, but also that of North Korea (Democratic People’s Republic of Korea). In addition, it may have encouraged the Syrian regime to divulge its nuclear activities before the conflict broke out. There are also arguments of a non-political nature to be made for a legal approach. The issue at stake here is to induce Iran, by enforcement or otherwise, to comply with non-proliferation norms. In this sense, the problem is one of arms control supervision.108 Failure to engage in discussion on the applicable law represents a missed opportunity to conduct a comprehensive dialogue on the supervision of both the NPT and the IAEA that is long overdue. Before any rule of law can be enforced, its provisions 107  108 

Article II IAEA Statute. See n 16.

166  Tom Coppen must be interpreted; in the context of arms control supervision, this is a ­process that takes place mainly through diplomatic channels, such as discussions between IAEA Member States or NPT Review Conferences.109 This ‘creative function’ of supervision stimulates the progressive development of international law. It is of crucial importance for addressing the weaknesses of the non-proliferation regime. The single positive aspect of the Iranian crisis is that it provides an incentive for extensive dialogue on how to strengthen the non-proliferation regime—this opportunity should not be squandered.

109 See, eg Myjer (n 29); EPJ Myjer, ‘The Organization for the Prohibition of Chemical Weapons: Moving Closer towards an International Arms Control Organization? A Quantum Leap in the Institutional Law of Arms Control’ in EPJ Myjer (ed), Issues of Arms Control and the Chemical Weapons Convention: Obligations Inter Se and Supervisory Mechanisms (The Hague, Martinus Nijhoff, 2001); see also G Den Dekker, ‘The Effectiveness of International Supervision in Arms Control Law’(2004) 9(3) Journal of Conflict and Security Law 315; Chayes and Chayes (n 75).

8 Contemporary Maritime Piracy as a Threat to International Peace and Security ALEXANDROS XM NTOVAS

I. INTRODUCTION

W

HEN REFERRING TO piracy on the high seas in academic literature, it has become commonplace to do so by employing expressions similar to those used by the Permanent Court of International Justice in The SS Lotus case, which was of the opinion that piracy has constituted a genuinely international offence, giving rise to a sui ­generis universal criminal jurisdiction, since time immemorial.1 ­Maritime piracy, as classically defined and codified by the 1958 Convention on the High Seas2 and the 1982 United Nations Convention on the Law of the Sea (UNCLOS),3 is a serious criminal offence. The international law related to piracy is primarily provided in UNCLOS through Articles 100–07, which set out the broad legal framework with respect to its suppression. In short, the Convention establishes a firm obligation for states to co-operate­ and exercise universal jurisdiction over crimes related to acts of piracy

1 

SS Lotus Case (France v Turkey) (Judgment) (1927) PCIJ Rep Series A No 10, para 70. on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11. See Article 5 and the auxiliary provisions in Articles 14 and 16–22. The drafting of the Convention largely reflected the preparatory work of the UN International Law Commission, see ILC, ‘Report of the International Law Commission Covering the Work of its Eighth Session’ (23 April–4 July 1956) UN Doc A/CN.4/104 published in (1956) II ­Yearbook of the International Law Commission 253; which in turn had been influenced by the codificatory study by the Harvard Law School leading to the Draft Convention on Piracy, available in the supplement series of (1932) 26 American Journal of International Law 739. 3 Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS; the Convention). UNCLOS incorporated, with drafting amendments, the piracy provisions of the 1958 High Seas Convention and progressively developed its definition as to envisage the possible implication of an aircraft in such attacks. 2  Convention

168  Alexandros XM Ntovas c­ ommitted on the high seas.4 For the purpose of the Convention, piracy is defined in Article 101 as consisting of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Vessels engaged in, or suspected of engaging in, acts of piracy as defined above may be boarded, searched and seized by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being in the government service of, and authorised to that effect by, any state.5 The courts of the seizing state may decide upon the penalties to be imposed, in accordance with the applicable national law, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.6

4 Article 100 UNCLOS. With respect to the legal construction of the crime of piracy in terms of space, it should be noted that the ‘high seas’ is an area that encompass the waters beyond the territorial sea of a state—ie, a zone that extends up to 12 nautical miles from the coast—and therefore a state may assume, in a manner consistent with the Convention, universal jurisdiction over piratical activities within the Exclusive Economic Zone of another state. See R Jennings and A Watts (eds), Oppenheim’s International Law, 9th edn (­London, Longman, 1992) 753. Correspondingly, acts of the same nature occurring in the internal waters, territorial sea or archipelagic waters of a state are classified as ‘armed robbery’ against ships. See further, International Maritime Organisation (IMO), ‘Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships’ (29 November 2001) A.922(22), defining armed robbery against ships as ‘any unlawful act of violence or detention or any act of depredation, or threat thereof, other than an act of “piracy”, directed against a ship or against persons or property on board such ship, within a State’s jurisdiction over such offences’. 5  Article 105 UNCLOS in conjunction with Article 107. A pirate ship or aircraft is further defined in Article 103 ‘A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 101. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.’ In addition, Article 102 envisages that acts of piracy may be ‘committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft’. Issues regarding the retention or loss of the nationality of a pirate ship or aircraft and incurring liability for seizure without adequate grounds are being addressed by Articles 104 and 106 respectively. On the specific rules and evolving standards regarding interdiction of vessels, see D Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge, Cambridge University Press, 2009). 6  Article 105 UNCLOS.

Maritime Piracy as International Threat 169 The 1979 International Convention against the Taking of Hostages7 and the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation8 are also closely related to the piracy provisions in UNCLOS. The Hostages Convention requires states to criminalise hostage-taking, as well as attempts to commit or participate in hostagetaking, and to render these offences punishable by appropriate penalties that take into account their grave nature. Furthermore, the SUA Convention ensures criminalisation of these activities in domestic law so as to establish jurisdiction and prosecute persons committing unlawful acts against ships, such as inter alia the seizure of ships by force and acts of violence against persons on board ships.9 With a view to establishing jurisdiction over piracy, the UN Security Council (UNSC) has in particular extended a rather broad call for flag, port and coastal states, as well as states either of the nationality of victims or of the perpetrators, to co-operate in determining jurisdiction. Such states should also assist in the investigation and prosecution of all persons responsible for such acts, to ensure that all pirates—consistent with applicable international law—are handed over to the relevant judicial authorities.10 The present chapter seeks to explore and evaluate the current nature of the threat posed by contemporary maritime piracy in the context of global ‘securitization’,11 a process wherein security is construed across paradigms, including reflective theories and social constructivism alike, as an emerging common value.12 It is argued that in the twenty-first century, piracy has been transformed from a serious, yet narrowly ­ ­conceptualised, international criminal offence, into a much broader and critical menace that threatens the peace and security of the international public order.13

7  International Convention against the Taking of Hostages (adopted 17 December 1979, entered into force 3 June 1983) 1316 UNTS 205 (Hostages Convention). See eg, the preambular provisions of UNSC Res 2020 (22 November 2011) UN Doc S/RES/2020. 8 Convention for the Suppression of Unlawful Acts against the Safety of Maritime ­Navigation (adopted 10 March 1988, entered into force 1 March 1992) 1678 UNTS 221 (SUA Convention). See eg, UNSC Res 1846 (2 December 2008) UN Doc S/RES/1846 para 15. 9 RC Beckman, ‘The 1988 SUA Convention and 2005 SUA Protocol: Tools to Combat Piracy, Armed Robbery, and Maritime Terrorism’ in R Herbert-Burns, S Bateman and P Lehr (eds), Lloyd’s MIU Handbook of Maritime Security (London, Taylor Francis, 2008) 187. 10  UNSC Res 1950 (23 November 2010) UN Doc S/RES/1950 para 12. 11  See, among others, P Hough, Understanding Global Security (London, Routledge, 2004). 12  B Buzan, ‘New Patterns of Global Security in the Twenty-First Century’ (1991) 67(3) International Affairs 431. 13  Piracy was not, and is still not (as was insightfully pointed out by Cassese) punished for the sake of protecting a community value, in spite of the fact that all states are authorised to capture on the high seas and bring to trial pirates in order to safeguard their joint interest in fighting a common danger and consequent real or potential damage, A Cassese, International Criminal Law, 2nd edn (Oxford, Oxford University Press, 2008) 12.

170  Alexandros XM Ntovas Next to the threat traditionally directed towards the safety of c­ ommercial maritime routes, international navigation and personally to seafarers, piracy nowadays has evolved into a major asymmetrical economic hazard that profoundly affects the shipping and insurance industry, with subsequent adverse impacts on international trade and the global supply chain. In spatial terms, contemporary maritime piracy has revealed an alarming ability to become more sophisticated and daring in extending its threat geographically to regions beyond the immediately affected adjacent seas. Indicatively, a mere perusal of UNSC resolutions, which have been adopted in the space of four years, startlingly reveals that piracy now poses a threat that can transcend maritime zones and land regions. What initially had been determined as a threat ‘against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia’,14 was later developed into a threat to ‘other States in the region’15 and soon after emerged as a threat to ‘the region of the Western Indian Ocean and adjacent sea area’.16 Moreover, in terms of economic development and domestic security and stability, the adverse ramifications of piracy have proven to be so widespread in their reach as to affect even ‘littoral countries, including their hinterland areas and landlocked countries in the region’.17 In parallel with the extensive geographical scope, contemporary maritime piracy is also being transformed into a multifarious international criminal offence that comprises diverse constitutive elements, such as financing, planning, organising and profiting from unlawful gains. In particular, the methods employed by piracy financiers, who encounter minimal control while moving and using their assets—as evidenced by the use of effective arrangements constructed to channel ransoms through existing banking and other financial networks and also through moneylaundering activities and undertakings connected to other aspects of transnational organised crime and, possibly, terrorism. International law sets the broader legal framework applicable to combating piracy in enabling the development of complex and interfacing responses in relation to the duty of states to co-operate for its suppression. Yet, law enforcement at sea will not yield any lasting solution unless effective laws on the international and domestic plane, with appropriate judicial structures to uphold them, are created to address the contemporary legal nature of piracy in all of its aspects, including the underlying causes. In the meantime, it remains to be seen whether the most c­hallenging aspect in combating contemporary maritime piracy emanates from the act 14 

UNSC Res 1816 (2 June 2008) UN Doc S/RES/1816 Recital 12 in the preamble. UNSC Res 1918 (27 April 2010) UN Doc S/RES/1918 Recital 2 in the preamble. 16  UNSC Res 2020 (n 7) Recital 2 in the preamble. 17  UNSC Res 2039 (29 February 2012) S/RES/2039 Recital 3 in the preamble. 15 

Maritime Piracy as International Threat 171 itself at sea, or from the fact of having stimulated criminal networks and a peripheral transactional industry, which are rooted in societies and economies far away from the theatre of piracy.18 II.  THE CURRENT GEOGRAPHY

The first decade of the twenty-first century witnessed a sharp rise in pirate attacks on ships off the coast of Somalia, with the statistics on reported incidents marking 2011 as the annus horribilis for the international community regarding piracy at sea. It was the year that the world experienced a sudden and unprecedented spread in piratical incidents in the Gulf of Aden and the wider region. 2012 was a rather encouraging year, having signalled a reduction in successful incidents off the coast of Somalia, which was further confirmed during 2014, when piratical activity worldwide reached its lowest levels in seven years.19 This is because piratical activity was less pronounced than in the past and the number of successful attacks had been further reduced.20 The joint efforts made by the international community in consultation with, and active participation of, the shipping industry to counter piracy, in particular off the coast of Somalia, have led to a set of comprehensive measures and initiatives, that, after many years of maritime insecurity, may allow for a more certain future. The mobilisation, and continuous presence in affected regions, of naval forces through operations aimed at protecting merchant ships and disrupting piratical attempts, has been a key aspect in international and regional co-operation. This co-operation has increased and operationally it has extended ashore in respect of the gathering of intelligence and sharing of information. In parallel, the improved implementation of the International Maritime Organization

18  For instance, according to experts on the activities undertaken by transnational crime syndicates, the management of ransom negotiations and pay-outs in Somalia indicated that ‘money goes as far as Canada and capitals in Europe’, as quoted in MO Hassan and E ­Kennedy ‘Somali Piracy Backed by International Network’ NBC News (10 December 2008) www.nbcnews.com/id/28158455/ns/world_news-africa/t/somali-piracy-backedinternational-network/#.VgkB2Ua8oYs. See also MN Murphy, ‘Twenty-first-century HighSeas Piracy off Somalia’ in BA Elleman (ed), Commerce Raiding: Historical Case Studies, 17552009: Economic Warfare, Maritime Security, and Military Escalation (Paine, US Naval War College Press, 2014) 253ff. 19  Piracy and Armed Robbery against Ships, Report for the period 1 January–31 December 2014 (London, IMB, January 2015) available upon request from the ICC International Maritime Bureau. 20  International Chamber of Commerce (ICC), ‘Lowest First Quarter Figures since 2007 but no Room for Complacency, Reports IMB’ (24 April 2014) icc-ccs.org.

172  Alexandros XM Ntovas (IMO) guidelines21 and the widespread adoption of industry-developed Best Management Practices (BMP) for self-protection and situational awareness measures22—including the deployment by some flag-states of vessel protection military detachments on board, or privately contracted armed security guards—have also been instrumental in deterring pirate attacks. Finally, the development of a substantive legal framework and judicial network for the prosecution of suspected pirates and the imprisonment of those convicted, coupled with several initiatives within a broader statebuilding process, have started to gradually address its underlying causes. Meanwhile, and despite the decreasing figures in East Africa, the threat of piracy has grown in a slower but more violent way, and at an alarmingly pace, on the opposite side of the continent, in the region of West Africa. In 2013 Nigerian-based attacks stood at their highest level since 200823 and of the 67 reported piracy incidents that the Oceans beyond Piracy report logged in 2014, only 42 per cent occurred in territorial waters. This is a noticeable trend showing incidents expanding beyond 12 nautical miles, where historically up to 80 per cent of piracy attacks occurred within territorial waters.24 The number of attacks in the South China Sea, the Indian Ocean, South America and the Caribbean continues to vary seasonally, but overall remains at traditional levels.25 For instance, the latest available figures in 2015 reveal that a total of 134 incidents of piracy and armed robbery against ships were reported to the IMB Piracy Reporting Centre in the first six months of 2015—an increase on the 116 reports for the corresponding

21 The IMO has been relentlessly addressing the issue of piracy through numerous r­ esolutions and recommendations containing guidance to governments, ship-owners, shipoperators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships; see in particular IMO, ‘Measures to Prevent Acts of Piracy and Armed Robbery against Ships’ (17 November 1983) A.545(13); IMO, ‘Prevention and Suppression of Acts of Piracy and Armed Robbery against Ships’ (6 November 1991) A.683(17); IMO, ‘Measures to Prevent and Suppress Piracy and Armed Robbery against Ships’ (4 November 1993) A.738(18). 22  This is a set of guidelines, developed by various industry bodies together with navy officials aiming to assist commercial vessels transiting the dangerous waters in the Gulf of Aden and off the east coast of Somalia to avoid, deter or delay piracy attacks; BMPs are regularly updated in light of new incidents that indicate the need for adjustment in response to the methods employed by pirates, International Maritime Bureau of the International Chamber of Commerce (IMB), ‘BMP4: Best Management Practices for Protection against Somalia Based Piracy’ (Edinburgh, Witherby Publishing Group, 2011) icc-ccs.org/images/stories/ pdfs/bmp4.pdf. 23  See, ICC—Commercial Crime Services, ‘IMB Piracy Report Highlights Violence in West Africa’ (ICC,18 July 2013); ICC—Commercial Crime Services, ‘IMB Warns of West Africa Piracy Threat’ (ICC, 7 March 2014) icc-ccs.org. 24  The State of Maritime Piracy 2014, Annual Report (Colorado, Oceans Beyond Piracy/One Earth Future Foundation, 2015) 39. 25  ICC—Commercial Crime Services, icc-ccs.org.

Maritime Piracy as International Threat 173 period in 2014. However, this increase is attributed mostly to the rise in small coastal tanker hijackings in Southeast Asia26 and is likely to follow a decreasing trend in the second half of 2015.27 III.  AN ASYMMETRICAL THREAT

Piracy traditionally poses a serious security threat to the use of commercial maritime routes and safety of international navigation in general for slow-moving cargo carriers and tankers, which serve more than 90 per cent of global trade. Particularly in the region of the Gulf of Aden, piracy has posed an exceptional threat due to the strategic importance of the navigational routes along the coast of Somalia for regional and global seaborne trade—indicatively 20 per cent of global trade by volume passes through the Gulf of Aden. In terms of human cost, since the first known hijacking in April 2005 until April 2013 as many as 3,741 crewmembers of 125 different nationalities had been captured by pirates based in ­Somalia alone.28 Where vessels have been successfully hijacked, the life of the crew was put at high risk owing to physical and psychological abuse, or because of health problems resulting from limited access to food, water and medical support, especially in cases where hostages were held for prolonged periods.In the case of the rescued MV Iceberg-1, a vessel that had been abandoned by the ship-owner subsequent to capture, this was three years, but it was even longer in the cases of the MV Asphalt Venture and MVPrantalay-12. The grave concern of the UNSC has repeatedly been expressed in view of the increased level of violence reported during and throughout piratical incidents, the growing practice of hostage-taking, the inhuman conditions that hostages faced in captivity and also recognising the adverse impact on their families.29 Given the long-term psychological effects of piracy on ­seafarers and their families, its human impact will continue even if no additional hostages are taken. In addition to the abuses suffered by seafarers, families are now the targets of harassment by pirates and ­secondary victimisation by exploitative lawyers or criminals, while a

26 ICC, ‘Maritime Piracy Report Reveals Continued SE Asian Attacks against Small ­Tankers’ (ICC, 22 July 2014) icc-ccs.org. 27  Situation of Piracy and Armed Robbery Against Ships in Asia in July 2015 (Singapore, Information Sharing Centre—Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, July 2015). 28  The Pirates of Somalia; Ending the Threat, Rebuilding a Nation (Washington DC, The World Bank, 2013). 29  UNSC Res 1976 (11 April 2011) UN Doc S/RES/1976, UNSC Res 2020 (n 7) and UNSC Res 2125 (18 November 2013) UN Doc S/RES/2125.

174  Alexandros XM Ntovas f­ urther challenge is created by perceived gaps in the awareness and benefit programmes available to reduce risks to seafarers.30 Moreover, disturbing evidence has revealed the recruitment of children by piracy networks, especially off the coast of Somalia.31 Next to the threat traditionally directed towards the safety of commercial maritime routes, international navigation and the devastating human impact, piracy nowadays has also evolved into a major asymmetrical economic hazard. It has profoundly affected the shipping and insurance industry, with subsequent adverse impact on international trade by raising the cost of transporting goods and endangering the continuity of supply chains as security across the maritime trading systems is a critical part of the current global environment.32 Precautionary measures, such as re-routing vessels in order to avoid high-risk areas, or transiting at higher speeds, are costly. Indicatively, it has been estimated that rerouting a single tanker from Saudi Arabia to the United States around the Cape of Good Hope, in order to avoid passing through the Gulf of Aden, adds approximately 2,700 miles to each voyage and about $3.5 million in annual fuel costs.33 For vessels traversing high-risk areas, it has been evidenced that they cannot be successfully hijacked when traveling at 18 knots or faster, yet fuel consumption significantly increases at this speed, at an annual cost for containerships of up to $2.7 billion. In addition, higher labour charges will apply while transiting high-risk areas for those wishing not to exercise the right to refuse to sail and to return to their country of origin at no cost. Seafarers are entitled to a bonus of 100 per cent of their base wage for the duration of time they are in such an area, captivity pay in the event they are taken hostage, and doubled compensation for death and ­disability.34 Moreover, piracy has radically changed the insurance landscape, as in some instances ship-owners and/or ship-operators became insolvent due to not being able to charter vessels that are held by pirates for long periods of time. Released vessels may have been substantially damaged from their time in captivity or even wrecked, as in the case of the MV Albedo that sank on 6 July 2013 after being held by Somali pirates since November 2010.

30  K Hurlburt, The Human Cost of Maritime Piracy (Colorado, Oceans Beyond Piracy, 2013) 2–31. 31  UNSC Res 1950 (n 10). 32  P Barnes and R Oloruntoba, ‘Assurance of Security in Maritime Supply Chains: Conceptual Issues of Vulnerability and Crisis Management’ (2005) 11(4) Journal of International Management 538. 33  United States Maritime Administration, ‘Economic Impact of Piracy in the Gulf of Aden on Global Trade’, (November 2008) marad.dot.gov. 34  See, J Bellish, The Economic Cost of Somali Piracy (Colorado, Oceans Beyond Piracy, 2011) 20–22, and M Walje, The State of Maritime Piracy 2014 (Colorado, Oceans Beyond Piracy, 2014) 14.

Maritime Piracy as International Threat 175 Significantly higher insurance premiums, such as ‘Kidnap and Ransom’ and/or ‘War Risk’, will therefore apply.35 A further economic burden in response to the increasing numbers of piratical incidents globally is the need to have recourse to Privately Contracted Armed Security Personnel (PCASP) on board for the protection of their vessels, after an ill-fated proposal by the International Chamber of Shipping (ICS) for the establishment of a UN force of armed military guards that could be deployed in small numbers on board merchant vessels as part of effective counter-piracy measures in the area.36 For shipoperators, a $75,000 outlay on private security is worth paying to avoid lengthy hijackings and delays. This is an arrangement also favoured by marine insurers and charterers. Eventually, this cost nonetheless is generally passed on to clients and then ultimately to consumers.37 The Security Council has encouraged the implementation of selfprotection­measures such as avoidance, evasion and defensive techniques by vessels, and the establishment by the IMO through a consultative process of a legal basis for the use, exclusively in high-risk areas, of PCASP on board.38 These have proved largely successful in preventing pirates from boarding vessels and enabling rescues by naval forces from seized vessels.39 Nevertheless, the use of PCASP has given rise to vitally important and interrelated questions concerning their proper handling under national policies and their personal accountability in connection with flagstates’ responsibility to ensure the rules on the use of force are consistent with international humanitarian law and international human rights.40 The international legal framework in place at the moment is based on UNCLOS Article 94 that requires all states to exercise jurisdiction and control in administrative, technical and social matters over ships flying their flag; in effect, however, this subjects the use of PCASP on board to the discretion and control of each flag-state in accordance with its national legislation. Port and coastal states’ laws may also apply to such vessels in waters under the respective jurisdictions as the presence of ­ammunition, 35 See further P Sooksripaisarnkit, ‘Piracy and The Global Insurance Industry’ in CH Norchi and G Proutiere-Moulion (eds), Piracy in Comparative Perspective: Problems, Strategies, Law (Portland, Hart Publishing, 2012) 275. 36  International Chamber of Shipping, ‘Letter dated 11 August 2001 from the C ­ hairmen of International Chamber of Shipping, INTERCARGO, INTERTANKO and BIMCO addressed to the Secretary-General of the United Nations’ (11 August 2011) bimco.org/~/ media/About/Press/2011/Letter_to_Ban_Ki-Moon_-_Piracy.ashx. 37  H Healy, ‘How the War on Piracy became Big Business’ New Internationalist (September 2013) newint.org/features/2013/09/01/pirates-keynote. 38  UNSC Res 2125 (n 29) para 26. 39 IMO, ‘Piracy and Lives Lost—IMO Secretary-General Sets Ambitious Targets’ IMO News (2013 Issue 1) 9. 40 J Kraska, ‘International and Comparative Regulation of Private Maritime Security Companies Employed in Counter-piracy’ in D Guilfoyle (ed), Modern Piracy (Cheltenham, Edward Elgar Publishing, 2013).

176  Alexandros XM Ntovas weapons and security-related equipment on board raises a number of ­reasonable concerns related to the embarkation, disembarkation and carriage of such armed personnel.41 From the ongoing negotiations conducted in the Maritime Safety Committee of the IMO transpires a catholic cautiousness, especially at high-level panels, over the employment of PCASP in considering them a measure to be used only in exceptional circumstances on vessels transiting high-risk areas, based on a thorough risk assessment and following consultations with the ship-owners.42 The IMO, with the contribution of the International Organization for Standardization (ISO) in this regard, has developed since 2011 a set of international minimum standards for the training and certification for Private Maritime Security Companies when providing shipboard deployment of PCASP in high-risk areas. These standards include among other guidance on matters regarding risk assessment, selection criteria, insurance cover, the exercise of command and control at all times when on board, and establishing, in particular, rules for the use of force as agreed between the ship-owner, the private maritime security company and the master of the vessel.43 It should be noted, however, that these guidelines are not intended to endorse or institutionalise the use of PCASP, and do not address all the

41  See further in A Petrig, ‘The Use of Force and Firearms by Private Maritime Security Companies against Suspected Pirates’ (2013) 62(3) International and Comparative Law Quarterly 667. 42  High-risk areas are set and defined, taking into account actual incidents of piracy, by the insurance and maritime industry, see BMP4 (n 22) Section 2, 4. 43 ‘On interim guidance to private maritime security companies providing contracted armed security personnel on board ships in the High Risk Area’ IMO (Maritime Safety Committee), ‘Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area’ (25 May 2012) MSC.1/Circ.1443; revised by IMO (Maritime Safety Committee), ‘Revised Interim Guidance to Shipowners, Ship Operators and Shipmasters on the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area’ (25 May 2012) MSC.1/ Circ.1405/Rev.2 to take into account consequential amendments arising from further developments. The guidelines should be read in conjunction with ISO, ‘Ships and Marine Technology—Guidelines for Private Maritime Security Companies (PMSC) Providing ­ ­Privately Contracted Armed Security Personnel (PCASP) on Board Ships (and Pro Forma Contract)’ (15 December 2012) ISO/PAS 28007:2012, which was lastly revised—as of the time of writing—in April 2015 in the form of BS ISO/PAS 28007:2015 version. This contains essential information for private maritime security companies and for ships selecting service providers; addresses security management system elements, such as resilience, planning, resources, training and awareness, communication and documentation. It outlines operational requirements for dealing with issues, such as scene and casualty management, incident reporting and investigation, health and safety and customer complaints; and further includes recommendations for performance evaluation, such as monitoring, audits, management and continual improvement. Implementation will help security companies demonstrate their ability to provide privately contracted armed personnel on board ships. See www.iso.org/iso/home.html. At the moment, the International Chamber of Shipping, in co-operation with the Security Association for the Maritime Industry, continues to work on the elaboration of rules on the use force by PCASP.

Maritime Piracy as International Threat 177 legal issues that might be associated with their use on board vessels.44 Recently, the IMO—in view of the proliferation of piratical attacks in the area—called upon flag-states whose ships are operating in the region of West Africa to implement the newly developed ‘Interim Guidelines for Owners, Operators and Masters for Protection against Piracy and Armed Robbery in the Gulf of Guinea Region’, developed by the ICS, the Baltic and International Maritime Council (BIMCO), the International Association of Independent Tanker Owners (INTERTANKO) and the International Association of Dry Cargo Shipowners (INTERCARGO) and supported by the North Atlantic Treaty Organisation (NATO) Shipping Centre.45 Finally, the payment of ransoms for the release of the vessel, cargo and crew payment—constituting essentially an element of the ship-operator’s­ duty of care—remains the greatest and, in policy terms on both the international and domestic plane,46 the most controversial aspect in the economics of piracy. According to confirmed figures recently becoming available, Somali pirates have reportedly collected between $339 million and $413 million in ransoms between April 2005 and December 2012; a figure that does not include the cost of ransom delivery, the negotiators’ fees, or the cost of consultants and attorneys.47 However, despite the general decrease in pirate attacks, when pirates do succeed in hijacking a vessel, the demanded ransom may rise to unprecedented levels; for instance, the ransoms paid for the release of MT Smyrni at the beginning of 2013 are reported to have totalled US$13 million. The overall cost of piracy to states and societies has been heavy to date. In one of the most detailed assessments of the international and regional costs of Somali piracy, the World Bank evaluates that piracy cost the global economy an estimated yearly loss to the world economy in excess of $18 billion in increased trade costs, an amount that dwarfs the estimated US$53 million average annual ransom paid since 2005.48 In the wake of the robust response by the international community to the situation in Somalia and the broader region of the Gulf of Aden, the cost to the global 44 As stated in IMO, MSC.1/Circ.1443 (n 43), the guidelines do not represent any fundamental change of policy by the IMO in this regard. If a flag-state decides to permit this practice, it is up to that state to determine the conditions under which authorisation will be granted. 45  IMO, ‘Interim Guidelines for Owners, Operators and Masters for Protection against Piracy in the Gulf of Guinea Region’ (15 August 2013) Circular letter No 3394—the decision for this was taken by the Maritime Safety Committee, at its 92nd session (12–21 June 2013), recognising the gravity of the issue of piracy and armed robbery against ships in the Gulf of Guinea and the extreme violence exhibited. The interim guidelines for the Gulf of Guinea should be read in conjunction with BMP4 (n 22). 46  A Anyimadu, Coordinating an International Approach to the Payment of Ransoms: Policy Options for Reducing Ransom Payments (London, Chatham House, 2012). 47  See Bellish (n 34) and Walje (n 34). 48  World Bank, Pirate Trails: Tracking the Illicit Financial Flows from Pirate Activities off the Horn of Africa (Washington DC, World Bank, 2013).

178  Alexandros XM Ntovas economy fell by almost half in 2013, with the Oceans beyond Piracy 2014 report putting the total cost of Somali piracy—by far the largest single threat to international shipping in recent years—at only US$3.2 billion in 2013.49 Nonetheless, piracy in West Africa and Southeast Asia has been on the rise since 2014,50 and according to other international market-based reports across the ‘pirate value chain’, carried out by specialists in economic intelligence, estimate that the overall cost to the international community may likely increase to a much higher figure by 2015, given the rebound on maritime trade volume, the geographical expansion of piracy incidents and the use already of more sophisticated tactics.51 IV.  PIRACY’S EXPANDABLE REACH

In spatial terms, contemporary maritime piracy has revealed an alarming ability to become more sophisticated and daring in extending its threat to regions beyond the immediately affected adjacent seas. In fact, a mere perusal of UNSC resolutions adopted over a five-year timespan (2008–2013) reveals that modern piracy poses a threat that is capable of transcending maritime zones and even diffused into immediate and more distant from the shore land regions. More specifically, the very first time that piracy was invoked within the context of a Resolution addressing an international threat is that of 1816 (2008) where the Security Council, following up a report by the IMO,52 determined that [t]he incidents of piracy and armed robbery against vessels in the territorial waters of Somalia and the high seas off its coast exacerbated the situation in Somalia which continued to constitute a threat to international peace and security in the region.53

The concern at the time was not limited to the safety of commercial maritime routes and international navigation, but also reflected the negative impact of piratical activities on the prompt, safe and effective delivery of humanitarian aid to Somalia through vessels in the maritime convoys operated by the World Food Program (WFP), upon which as many as three-and-a-half million Somalis were dependent for food aid and other humanitarian assistance. By then it had already been established that the upsurge of piracy in the territorial waters of Somalia and the high seas 49  The State of Maritime Piracy 2013, Annual Report (Colorado, Oceans Beyond Piracy/One Earth Future Foundation, 2014). 50  The State of Maritime Piracy 2014 (n 24). 51 ‘The Economics of Piracy; Pirate Ransoms & Livelihoods off the Coast of Somalia’ Geopolicity (Dubai, May 2011). 52  IMO, ‘On Piracy and Armed Robbery against Ships in Waters off the Coast of Somalia’ (23 November 2005) A.979(24). 53  UNSC Res 1816 (n 14) Recital 12 in the preamble.

Maritime Piracy as International Threat 179 off its coast was the outcome of the continuing civil conflict and political instability in the interior of the country.54 In turn, these circumstances were at the same time also the root cause of the problem, as the limited livelihood opportunities in the country, together with the onshore rule of law and governance vacuum, allowed piracy to arise.55 In particular, the Monitoring Group on Somalia, in its report of 27 June 2007, confirmed, inter alia, that piracy off the coast of Somalia, unlike in other parts of the world, is caused by a lack of lawful administration and the inability of the authorities to take affirmative action against the perpetrators, which allows the ‘pirate command centres’ to operate without hindrance at many points along the coast of Somalia, using its coastline as a safe haven from which to launch their operations.56 Moreover, the inadequate enforcement of the arms embargo imposed on Somalia in relation to the ongoing conflict and deteriorating humanitarian situation permitted ready access to the arms and ammunition used by the pirates, driving the phenomenal growth in piracy.57 ­Following 54  There were also concerns that environmental arguments may have been used by pirates to justify their criminal activities in the international media. In the face of such allegations, the UNSC reaffirmed Somalia’s rights in respect to offshore natural resources, including fisheries, in accordance with international law and requested the Secretary-General to report on the protection of Somali natural resources and waters—particularly on illegal fishing and illegal dumping, including of toxic substances; see, UNSC Res 1950 (n 10) para 6 and UNSC Res 1976 (n 29) para 7. However, subsequent reports by the UN Secretary-General (UNSG) found little evidence to justify claims that illegal fishing and dumping are factors responsible for forcing Somali youths to resort to piracy and moreover that there was no evidence of toxic waste dumping on land and at sea; see UNSG Reports 661 (2011) and 783 (2012). This position has been recently revised, as the Security Council—following the ‘Report of the Secretary-General on the Situation with Respect to Piracy and Armed Robbery at Sea off the Coast of Somalia’ (2015) UN Doc S/2015/776, see paras 6, 22, 56 and 58—expressed serious concerns regarding illegal fishing in Somalia’s EEZ and noted the complex relationship between such practice and piracy; see, UNSC Res 2244 (23 October 2015) UN Doc S/RES/2244 Recital 24 in the preamble, and UNSC Res 2246 (10 November 2015) UN Doc S/RES/2246 Recital 9 in the preamble. 55  UNGA, ‘Report of the Secretary-General on the Situation with Respect to Piracy and Armed Robbery at Sea off the Coast of Somalia’ (2013) UN Doc S/2013/623. 56  ‘Report of the Monitoring Group on Somalia Pursuant to Security Council Resolution 1724 (2006)’, paras 89–91 and 118–19, in UNSC, ‘Letter Dated 17 July 2007 from the Chairman of the Security Council Committee Established Pursuant to Resolution 751 (1992) Concerning Somalia Addressed to the Presidentof the Security Council’ (17 July 2007) UN Doc S/2007/436. 57 UNSC Res 1851 (16 December 2008) UN Doc S/RES/1851 para 9. The Somalian embargo has been imposed since 1992 by means of UNSC Res 733 (23 January 1992) UN Doc S/RES/733, which established an embargo on the delivery of all weapons and military equipment. It has been subsequently revised, more importantly by UNSC Res 1725 (6 December 2006) UN Doc S/RES/1725 and UNSC Res 1744 (21 February 2007) S/RES/1744 in order to allow weapons and military equipment intended solely for the purpose of developing the Somali security sector institutions. In December 2009 the UNSC also imposed an arms embargo on Eritrea, partly in response to reports that it had violated the arms embargo on Somalia. It must be pointed out that the overall arms embargo on Somalia has been recently reaffirmed by UNSC Res 2244 (23 October 2015) UN Doc S/RES 2244, which extended the provisions relating to arms supplies to the Somali Federal government until 15 November 2016.

180  Alexandros XM Ntovas UNSC authorisation, the Monitoring Group on Somalia launched an investigation58 from which it was established that proceeds coming from the payment of piracy ransoms were being used to finance violations of the embargo on all delivery of weapons and military equipment to Somalia. Further, weaknesses caused by the crisis situation in Somalia, are the lack of capacity of the Transitional Federal Institutions to interdict, or upon interdiction, to prosecute pirates; and to patrol and secure either the international sea lanes off the coast of Somalia or Somalia’s territorial waters.59 In view of the situation, and having thus deemed piracy in this frame of reference, the UNSC, acting under Chapter VII of the Charter of the United Nations and with the co-operation and advanced consent of the Transitional Federal Government, authorised states to enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery,60 and make use therein in a manner consistent with the relevant international law of ‘all necessary means’.61 Within a year of the UNSC being seized of the matter, the dramatic proliferation of incidents demonstrated that piracy was not only an ongoing threat in the territorial waters and the waters off the coast of Somalia but it had been extended into the Arabian Sea and western Indian Ocean.62 According to the International Maritime Bureau of the International

58 The Monitoring Group on Somalia was established by means of UNSC Res 1519 (16 December 2003) S/RES/1519 with its mandate to be renewed and expanded through a stream of resolutions including UNSC Res 1558 (17 August 2004) UN Doc S/RES/1558; UNSC Res 1587 (15 March 2005) UN Doc S/RES/1587; UNSC Res 1630 (14 October 2005) UN Doc S/RES 1630; UNSC Res 1676 (10 May 2006) UN Doc S/RES/1676; UNSC Res 1724 (29 November 2006) UN Doc 1724; and UNSC Res 1766 (23 July 2007) UN Doc 1766. 59  ‘Report of the Monitoring Group on Somalia Pursuant to Security Council Resolution 1811 (2008)’, para 266, in UNSC, ‘Letter Dated 10 December 2008 from the Chairman of the Security Council Committee Established Pursuant to Resolution 751 (1992) Concerning Somalia addressed to the President of the Security’ (10 December 2008) UN Doc S/2008/769. 60  The reference to armed robbery should be noted as the latter has been distinguished from acts of piracy above, that Somalia formally has been claiming a territorial sea extending 200 nautical miles from its coast since 1972. This issue became particularly controversial after the adoption of UNCLOS, which only allows for territorial waters up to 12 nautical miles, and Somalia’s ratification on 24 July 1989, which was made without any declarations or reservations. On 6 September 2011, the ‘Roadmap to End the Transition’ called on Somalia, among others, to declare an exclusive economic zone (EEZ) and establish internationally recognised Somali waters in accordance with UNCLOS, a requirement that was later also stressed by the SC in UNSC Res 2077 (21 November 2012) UN Doc S/RES/2077 para 4, with a view to enabling an effective counter-piracy legislation and clarifying the legal basis for the protection of its sovereign rights with respect to natural resources and its jurisdiction over the marine environment. 61  UNSC Res 1816 (n 14) para 7. Hence the consent has been provided in the form of letters from the Permanent Representative of Somalia to the United Nations on the basis of which the UNSC, by means of subsequent resolutions, renews the provisions of UNSC Res 1816 (n 14) relating to counter piracy operations undertaken by other states and regional organisations in Somalian waters. 62  See, UNSC Res 1851 (n 57), UNSC Res 1897 (30 November 2009) UN Doc S/RES/1897 and UNSC Res 1918 (n 15).

Maritime Piracy as International Threat 181 Chamber of Commerce (IMB), pirates equipped with heavier weaponry had become more violent and were using hijacked ocean-going vessels as mother ships to carry out sophisticated—in organisation and method— attacks.63 This enabled them to expand the geographical range of their activities, as notably evidenced by the hijacking of the M/V Sirius Star some 500 nautical miles off the coast of Kenya and other subsequent unsuccessful attempts east of Tanzania. At that time Somali pirates could operate across 2.5 million square nautical miles of ocean; a size equivalent to that of the continental US, as stated by the US Bureau of PoliticalMilitary Affairs. In view of this situation the UNSC expressed its grave concern in noting that states in the region and other states beyond the immediate region were affected by the threat of piracy.64 The consequent deployment of international naval forces, operating within Somali waters pursuant to relevant authorisations by UNSC resolutions, along with the implementation of preventive measures by merchant vessels, eventually resulted in a significant reduction of successful piratical attempts in the following years. That, however, did not stop other attacks from occurring or being attempted in international waters as pirates had retained their capacity to operate given the substantial ransoms already collected by their financiers. Nevertheless, the UNSC remained gravely concerned as there was evidence of the expansion of onshore criminal activities by networks involved in piracy owning to growing pressure at sea. Some of the proceeds are reportedly being reinvested into drug trafficking, weapons and alcohol smuggling, human trafficking, and kidnapping for ransom of humanitarian and other international aid foreign workers, as well as civilians.65 These piracy networks, having built significant paramilitary capacities on land, still continue to pose a threat to the stability and security of ­Somalia and have the potential to destabilise the region. The Security Council, returning to the situation in 2013, remained gravely concerned that the incidents of piracy were still an important factor exacerbating the situation in Somalia which itself continued to pose a threat to international peace and security in the region. The large amounts of illicit cash flowing from escalating ransom payments fuelled additional criminal activities onshore and corruption which contributed to ongoing ­instability and

63  IMB, ‘Piracy and Armed Robbery against Ships, Report for the Period 1 January–30 June 2011’ ICC (July 2011) available upon request at icc-ccs.org. 64  UNSC Res 2015 (24 October 2011) UN Doc S/RES/2015 and UNSC Res 2020 (n 7). 65  While it is unclear if maritime piracy for ransom could be considered a subset of the much broader kidnapping for ransom phenomenon, there is a money laundering and proceeds of crime component to each, see further in Financial Action Task Force, Organised Maritime Piracy and Related Kidnapping for Ransom (Paris, Organisation for Economic Co-operation and Development, 2011).

182  Alexandros XM Ntovas lawlessness in the country and undermined the establishment of effective governance.66 Contemporary maritime piracy has also proved to pose a major threat to international peace in terms of economic development and domestic security and stability for states which enjoy much more stable political and social conditions in comparison to Somalia, as demonstrated through its recent rise in the West Africa sub-region. However, piracy, particularly in the Gulf of Guinea, a sub-region stretching from Guinea in the northwestern part of the African continent to Angola in the south-central part, is not a recent phenomenon. Since the late 1990s, this region has been facing piratical attacks targeting the cargo of tankers, particularly oil shipments and generally during ship-to-ship bunkering operations with a view to stealing oil cargo.67 The level of personal physical violence against seafarers has often been greater, and more brutal. More recently, however, there have been more cases of seafarers being taken hostage for ransom and held in captivity for long periods in often appalling conditions.68 However, since 2010, incidents of piracy in the area have risen significantly meaning that the region had the second most acute piracy problem on the African continent, with oil-producing countries such as Gabon, Angola and Nigeria frequently targeted for their high value petroleum assets. Nigeria has frequently stressed the devastating effect of piracy on maritime navigation and on the economies of the countries in the region, and underlined that the fight against piracy is a collective responsibility, due to lack of states’ capacity in the region to tackle maritime insecurity alone, with many pirate attacks occurring beyond national territorial waters and reaching into the exclusive economic zones.This is highlighted by the hijacking of MT Kerala in January 2014; a crude tanker that was captured in Angolan waters by pirates who disabled its identifications system and communication equipment and painted over its identifying markers, only to be released eight days later off the coast of Nigeria after offloading almost 13,000 tons of its diesel cargo to other ships.69 Following an open debate in the Security Council on ‘Peace and Security in Africa: Piracy in the Gulf of Guinea’ in 2011, the Council adopted its first ever resolution on the issue of piracy in the Gulf of Guinea, expressing its deep concern about the threat posed by piracy and armed robbery to international navigation, and in particular its damaging impact on 66 

UNSC Res 2125 (n 29). MN Murphy, ‘Petro-Piracy: Predation and Counter-Predation in Nigerian Waters’ in D Guilfoyle (ed), Modern Piracy (Cheltenham, Edward Elgar Publishing, 2013) 61–90. 68  International Chamber of Shipping, Annual Review (London, 2013) 19. 69 ‘MT Kerala Hijack—Game Changer or Inside Job?’ Dryad Maritime (12 May 2014) www.dryadmaritime.com/mt-kerala-hijack-game-changer-or-inside-job/. See also ICC, ‘IMB Warns of West Africa Piracy Threat’ ICC News (07 March 2014) icc-ccs.org/ news/911-imb-warns-of-west-africa-piracy-threat. 67  See

Maritime Piracy as International Threat 183 security, trade and economic activities in the sub-region.70 The ensuing robust counter-piracy operations led by Nigeria resulted in the displacement of pirates to the waters of neighbouring vulnerable countries,such as Benin.71 Although the international community had been more prepared to address the ongoing situation in the Gulf of Guinea, drawing on the processes already developing in relation to Somalia and western Indian Ocean, the Security Council, four months after its first resolution on the matter, revisited the situation in expressing further concerns about the adverse ramifications of piracy. These were so widespread in their reach as to affect even ‘littoral countries, including their hinterland areas and landlocked countries in the region’.72 More specifically, Benin—a state heavily reliant on national revenues from port services and transit fees—was severely affected by the continuation of piratical attacks carried out by displaced pirates in its waters during 2011 and 2012. For instance, due to the escalation in pirate attacks off its coast, the country has been added to the list of high-risk shipping areas by the London marine insurance group of ‘Joint War Committee’,73 leading to increased insurance rates for vessels operating in its waters and hence resulting in a dramatic decline in the number of ships entering the port of Cotonou. The consequential decrease in national revenue affected the ability of the state to function in the short term, and hampered its efforts to consolidate democratic governance, implement socio-economic development programmes, institute reforms and attract foreign investment for the exploration and exploitation of Benin’s offshore oil and gas reserves.74 Moreover, Benin’s trade and economic activities with landlocked states in the Sahel region, such as Burkina Faso, Mali and Niger, which depend on Cotonou’s transit port services, have also been affected. Likewise, the economic activities of these states have been disrupted. Finally, next to the economic impact of piracy on the West African sub-region, at the time reaching an annual loss of $2 billion,75 more alarming concerns have been voiced over possible political motivations for some of the pirate attacks

70 

UNSC Res 2018 (31 October 2011) UN Doc S/RES/2018. of the United Nations Assessment Mission on Piracy in the Gulf of Guinea (7 to 24 November 2011)’ in UNSC, ‘Letter Dated 18 January 2012 from the Secretary-General Addressed to the President of the Security Council’ (19 January 2012) UN Doc S/2012/45 (Gulf of Guinea Piracy Report 2011). 72  UNSC Res 2039 (n 17). 73  The Joint War Committee comprises underwriting representatives from both the Lloyd’s and International Underwriting Association company markets, representing the interests of those who write marine hull war business in the London market. The current Hull War, Piracy, Terrorism and Related Perils Listed Areas are detailed in JWLA021; see lmalloyds. com/Web/market_places/marine/JWC/Joint_War.aspx. 74  Gulf of Guinea Piracy Report 2011 (n 71) para 12. 75  Ibid paras 32–35. 71 ‘Report

184  Alexandros XM Ntovas that may be seeking to use piracy as a weapon to affect political developments in specific regional states.76 V.  A MULTIFARIOUS INTERNATIONAL CRIMINAL OFFENCE

In parallel with the extensive geographical scope, contemporary maritime piracy has evolved over time into a rather multifarious international criminal offence, which makes it capable of projecting its threat onto the land domain of states adjacent to the affected maritime regions, as well as other states beyond it. Piracy in the region has increased to such an extent that it is now considered to be a form of transnational organised crime,77 complete with established procedures, a successful business model, and well-organised and well-funded backing.78 Under international law the definition of piracy explicitly covers any act of inciting or intentionally facilitating such attacks, and thus covers material acts beyond those strictly concerning the objective conduct of piracy at sea. Consequently, land-based activities concerning financing, planning, organising attacks at sea, or unlawfully profiting from its proceeds must be considered as falling within the meaning of acts inciting and intentionally facilitating piracy.79 It is beyond any doubt that Somalia-based piracy, in particular, has been fundamentally transformed into a major criminal enterprise driven primarily by the opportunity for financial gain and the quest for illicit profit.80 As in the case of any other criminal activity, it demonstrates transnational aspects in activities with regard to organising, financing and facilitating the attacks, as well as in channelling and investing proceeds from ransom payments into criminal activities that are not limited to piracy, such as drugs, weapons and alcohol smuggling, and human trafficking.81 In a report by the Monitoring Group on Somalia and Eritrea, it was pointed out that members of Somali diaspora, among others, have increasing involvement in the broader pirate business. More ­specifically,

76 

Ibid para 60. ‘international’ and ‘transnational’ crime are not used interchangeably as they are two distinctly different qualities in terms of legally characterising an activity, with the former being essentially a crime against humanity, T Obokata, Transnational Organised Crime in International Law (Oxford, Hart Publishing, 2010) 30ff. 78 United Nations Office on Drugs and Crime (UNODC), ‘Awash with Money— Organized Crime and its Financial Links to Somali Piracy’ UNODC (25 May 2011) unodc. org/unodc/en/frontpage/index.html. 79  UNSC Res 1976 (n 29) para 15. 80  UNSC Res 2077 (n 60) Preambular provisions. 81  UNODC, ‘Ransom Money Laundered by Pirates Affects Stability in the Horn of Africa, says UNODC Chief’ UNODC (22 February 2012) unodc.org/unodc/en/frontpage/index. html. 77  NB

Maritime Piracy as International Threat 185 a ­growing proportion of Somalis involved in piracy are members of the diaspora, who hold dual nationality, and facilitate the movement and investment of piracy proceeds. For example, international investigations have identified and documented several financial transfers between Somali pirates and individuals in the Somali diaspora, linked to a number of hijacking cases such as, among others, the MV Al Khaliq in 2009, MV Orna in 2010, MV Irene SL in 2011, MV Rosalio D’Amato in 2011, and MV Enrico Ievoli in 2011.82 More recently, with the general decline of piratical activities, it was also noted that a network of individuals, including known pirate leaders, was engaged in providing private security for unlicensed fishing vessels in Somali waters and was connected to weapons-smuggling and Al-Shabaab networks in north-eastern Somalia.83 While the payment of ransom may be construed as contravening public policy, it is the only way to free crew being held hostage, along the vessel and its cargo.84 This inevitably has grave implications such as the indirect international breach of the arms embargo in Somalia, as well as violation of domestic legislation against the funding of terrorism, but seemingly a middle ground has emerged in which such payments are viewed as extortions and therefore involuntary acts. In this context governments have maintained a balanced view in refraining from preventing ransom deals,85 with the London-led International Piracy Ransoms Task Force in the meantime working to develop a new strategic partnership between flag-states, the private sector and law enforcement agencies to bring together those tackling piracy and those subjected to it in a united effort to break the piracy business model.86 Given the transnational criminal character of contemporary maritime piracy, the UNSC has urged states, in co-operation with international police organisations and the United Nations Office on Drugs and Crime 82  ‘Report of the Monitoring Group on Somalia and Eritrea Pursuant to Security Council Resolution 2002 (2011)’ in UNSC, ‘Letter Dated 11 July 2012 from the Chair of the Security Council Committee Pursuant to Resolutions 751 (1992) and 1907 (2009) Concerning ­Somalia and Eritrea Addressed to the President of the Security Council’ (13 July 2012) UN Doc S/2012/544 paras 42–43 and 46. 83  ‘Report of the Monitoring Group on Somalia and Eritrea Pursuant to Security Council Resolution 2060 (2012): Somalia’ in UNSC, ‘Letter Dated 12 July 2013 from the Chair of the Security Council Committee Pursuant to Resolutions 751 (1992) and 1907 (2009) concerning Somalia and Eritrea Addressed to the President of the Security Council’ (12 July 2013) UN Doc S/2013/413 paras 42–43 and 64. 84  CM Douse, ‘Combating Risk on the High Sea: An Analysis of the Effects of Modem Piratical Acts on the Marine Insurance Industry’ (2010) 201(135) Tulane Maritime Law Journal 267. 85  R Lough, ‘Piracy Ransom Cash Ends up with Somali Militants’ Reuters (6 July 2011) uk.reuters.com; and M Wiese Bockmann, ‘Somali Pirates Battled in London as Banks Curb Dollar Supply’ Bloomberg (22 July 2012) bloomberg.com. 86 The Task Force was established after an initiative by the UK Government after the London Conference on Somalia in February 2012. See further, gov.uk/government/news/ piracy-ransoms-task-force-publishes-recommendations.

186  Alexandros XM Ntovas (UNODC), to investigate, collect and share information on international criminal networks involved in piracy off the coast of Somalia.87 In this context emphasis is placed on tracking and disrupting illicit financial flows that are linked to piracy and other forms of organised crime. A recent study by the World Bank, UNODC, and International Criminal Police Organization (INTERPOL), explaining in detail the financial cycle of piracy, is particularly informative. The largest amount of the ransom payments, that are being secretly conducted, is managed by the financiers who usually move a part of them outside the country through crossborder cash smuggling, trade-based money-laundering activities, bank wire transfer and by abusing Money of Value Transfer Services (MVTS).88 Subsequently, the greater part of the proceeds are invested into a range of sectors within Somalia for money-laundering purposes, and are also being recycled into financing criminal activities; including further piracy acts, human trafficking, migrant smuggling, drug trafficking, and investing in militias and military capacities on land in Somalia. UNODC, through its ‘Global Programme against Money-Laundering, Proceeds of Crime and the Financing of Terrorism’, and in co-operation with the Contact Group on Piracy off the Coast of Somalia (CGPCS) works towards increasing global understanding of money flows linked to piracy through information exchange, capacity-building, coordination and technical assistance in the East Africa and Horn of Africa regions. Important initiatives under development are those aiming at the prevention of illicit cross-border movement of cash, as well as the regulation of informal remittance systems, and the establishment of a code of conduct to ensure that Somali MVTS meet international standards within a national framework to counter money-laundering and the financing of terrorism. These efforts aim to establish an operational and effective relation between authorities and providers of money or value transfer services, which will facilitate the effective gathering of financial information and support investigations targeting financiers of pirates.89

87 

See eg UNSC Res 1950 (n 10) paras 16–17 and UNSC Res 1976 (n 29) para 16. Bank, Pirate Trails: Tracking the Illicit Financial Flows from Pirate Activities off the Horn of Africa (Washington DC, World Bank, 2013). In fact, only a fraction of the ransoms goes to the low-level pirates, who typically receive a standard fee per ship, amounting to as little as 1%–2.5% of an average payment, while an undefined amount is paid to the local community that provides goods and services to pirates, including food, repair services and khat, which is a legal drug in Somalia. Reportedly, financiers may retain up to 75% of the total ransom, S Rastello, ‘Pirates Hauling $400 Million Pocket 1%–2.5% Share’ Bloomberg (4 November 2013) bloomberg.com. 89  Pursuant to UNSC Res 1851 (n 57), the Contact Group on Piracy off the Coast of Somalia (CGPCS) was established on 14 January 2009 to facilitate the discussion and coordination of actions among states and organisations to suppress piracy off the coast of Somalia. This international forum has brought together more than 60 countries and international organisations, all working towards the prevention of piracy off the Somali coast. Working Group 5, 88  World

Maritime Piracy as International Threat 187 Since 2012, UNODC has also been providing technical assistance to police, financial intelligence units, customs authorities and other law enforcement agencies in Somalia and Ethiopia, Kenya, and the United Republic of Tanzania which have been identified as three of the main transit points for financial operations leaving and entering Somalia. To this end, the Maritime Piracy Task Force of INTERPOL has operationalised a global database that improves evidence collection, consolidates and exchanges information about piracy off the coast of Somalia, and further facilitates the development of actionable analysis for law enforcement. Extensive links between piracy and transnational organised crime have also been documented in West Africa. It should be noted that piracy in this region may find its root causes in high levels of youth unemployment, wide income disparities within society, the uncontrolled circulation of illicit weapons and the prevalence of corruption, but mainly thrives on the criminal activity associated with disorder surrounding the regional oil industry, the single most important industry in the entire region, with the occurrence of a booming black market for fuel as the one operating in Nigeria. For this reason, as discussed earlier, piracy attacks aim predominately at the cargo of vessels carrying petroleum products and oil that subsequently can be easily smuggled outside the region, which reveals the extent of a highly organised criminal phenomenon involving a parallel industry with a developed supply chain and growing sophistication.90 As pointed out elsewhere, the players in the illicit oil bunkering industry are diverse, with regionally recruited pirates forming syndicates that, among others, consist of corrupt governmental officials and the armed groups they sponsor, corrupt elements in the military and the oil industry, and militants.91 The geographic scope of these activities furthermore demonstrates the expansive multinational network of informants and buyers that pirates, through such syndicates, have access to.92

chaired by Italy, focuses on how to advance information sharing internationally and between industry and government authorities to disrupt the pirate enterprise ashore and works with other key partners, such as INTERPOL, national law enforcement/prosecution agencies currently pursuing piracy investigations/prosecution and the World Bank in order to better understand how illicit financial flows associated with maritime piracy are moving in the area. WG5 works with WG2 to create new opportunities for prosecutors and investigators to exchange information about, de-conflict their ongoing investigations and proactively target the top organisers, financiers and negotiators of Somali piracy for arrest and prosecution. The CGPCS established WG5 in the 9th Plenary Session to efficiently tackle this problem. 90 Royal Institute of International Affairs, ‘Maritime Security in the Gulf of Guinea— Report of the Conference held at Chatham House, London, 6 December 2012’ (Maritime Security in the Gulf of Guinea Conference, London, March 2013) 12. 91 UNODC, Transnational Organized Crime in West Africa: A Threat Assessment (Vienna, UNODC, 2013) 50. 92 J Bridger, ‘Piracy in the Gulf of Guinea: Oil Soaked Pirates’ US Naval Institute (10 March 2014) news.usni.org/2014/03/10/piracy-gulf-guinea-oil-soaked-pirates.

188  Alexandros XM Ntovas The threat of piracy through transnational criminal networks has been channelled without strain and with great efficiency in the economies of states like Benin that are Nigeria’s neighbour. Benin has become susceptible to such networks due to limited law enforcement capacity, porous borders and its location as a major import-export hub. Responding to a formal appeal for international assistance to fight piracy in the country and throughout the Gulf of Guinea,93 a UN multidisciplinary mission, assessing the scope of the threat, confirmed the occurrence of systematic and organised attacks on the cargo of oil and chemical vessels at a ­distance of over 40 nautical miles offshore. These activities have been attributed to criminal organisations from neighbouring countries following counter-piracy operations conducted by Nigeria off its coast. The complicity of Benin nationals based onshore and corrupt officials at the Port of ­Cotonou has given rise to the establishment of an underground industry that thrives on the trafficking in petroleum, and the purchase and sale of smuggled fuel.94 The Commission on Crime Prevention and Criminal Justice, under the aegis of the UN Economic and Social Council, has repeatedly included piracy off the coast of Somalia and in the Gulf of Guinea in its resolutions addressing transnational organised crime committed at sea, with a view to stressing its implications as a global problem that threatens security, stability and the rule of law, and undermines economic ­prosperity and sustainable development. In doing so, it has frequently stressed that transnational organised criminal activities at sea are diverse, and in some cases interrelated, and that criminal organisations are adaptive and take ­advantage of the vulnerabilities of states. Therefore, the strengthening of international co-operation at all levels is essential in order to prevent and control such activities. Yet, it is imperative that states, first, take appropriate measures, consistent with their domestic legislation and legal frameworks, to strengthen law enforcement, with a view to preventing, combating and eradicating transnational organised crime committed at sea, in accordance with their rights and obligations under international law.95 The discussion over plausible links existing between piracy and the financing of terrorism, in particular of regional or international Islamist terrorist organisations, is extremely fervent due to the restricted availability of information or indeed lack of conclusive evidence suggesting 93  UNGA, ‘Report of the Secretary-General on the Activities of the United Nations Office for West Africa’ (2011) UN Doc S/2011/811 para 45. 94 UNSC, ‘Letter Dated 18 January 2012 from the Secretary-General Addressed to the ­President of the Security Council’ (19 January 2012) UN Doc S/2012/45. 95  See Commission on Crime Prevention and Criminal Justice, ‘Combating the Problem of Transnational Organized Crime Committed at Sea’ (2011) 20/5 and ‘Promoting International Cooperation and Strengthening Capacity to Combat the Problem of Transnational Organized Crime Committed at Sea’ (2013) 22/6.

Maritime Piracy as International Threat 189 meaningful connections, but according to experts this would be the next step for piracy if it is allowed to expand.96 Although piracy contradicts the Sharia principles and pirates choose their alliances carefully, being fully aware of the imminent implications to follow if they establish connections with terrorists, it is feared that Somali piracy might have been supplying weapons to, or have become a source of finance for, Al Shabaab and Al Qaeda, as well as funding Islamist insurgencies across Africa like ­Hizbul Islam. Islamists are reported to tap into the cash-flows generated by piracy, and as a matter of fact were extremely interested in the military equipment carried on the Ukrainian flagged MV Faina that was released after the payment of a US$3.2 million ransom.97 In addition, a passive collusion might be inferred by the relocation of the pirates in areas controlled by AlShabaab, which suggests that there are ad hoc personal, rather than institutional, agreements guaranteeing facilitations to the pirates regarding anchorage and the development of bases, in return for a portion of their ransom money.98 Even though such associations may be nurtured by mutual convenience rather than shared ideology, the potential scope and actual extent of mutually beneficial co-operation between pirates and some members of Islamist insurgent groups is significant because it may contribute to instability in Somalia and exacerbate already established threats to global security.99 In the meantime, and while the line between maritime piracy and conventional criminality is becoming increasingly blurred in Nigeria and other states in the region,100 terrorist groups in the Islamic Maghreb—like Boko Haram, which is directly targeting Nigeria—appear aptly well-funded.101 The IMB—based solely on comparing the two business models for attacks—neither confirms nor denies the existence of any links at the level of financiers,102 but the correlation of the dynamics between the two criminal activities is a fact that may open to speculation a nervously emerging relationship with terrorism, like in Somalia,103 especially since 96 

Royal Institute of International Affairs Report (n 90) 21. Shortland and M Vothknecht, ‘Combating “Maritime Terrorism” off the Coast of Somalia’ (2011) 27 European Journal of Political Economy 133. 98 UNSC, ‘Letter Dated 24 January 2011 from the Secretary-General Addressed to the President of the Security Council (Somalia—Report of the Special Adviser to the SecretaryGeneral on Legal Issues Related to Piracy off the Coast of Somalia)’ (24 January 2011) UN Doc S/2011/30 para 24. 99  World Bank, The Pirates of Somalia: Ending the Threat, Rebuilding a Nation (Washington DC, World Bank, 2013) 73ff. 100  S Starr, ‘Maritime Piracy on the Rise in West Africa’ (2014) 7(1) Combating Terrorism Center at West Point—CTC Sentinel 23. 101  See, A Kamal-Deen, ‘The Anatomy of Gulf of Guinea Piracy’ (2015) 68(1) Naval War ­College Review 106 and also globalsecurity.org/military/world/para/boko-haram.htm. 102  S Rothwell, ‘Somali Piracy: Gone for Good?’ International Relations and Security Network (16 May 2013) isn.ethz.ch. 103 N Anyu and S Moki, ‘Africa: The Piracy Hot Spot and its Implications for Global ­Security’ (2009) 20(3) Mediterranean Quarterly 95. 97 A

190  Alexandros XM Ntovas political and security consultants know little of the group’s funding sources. In a series of recent interviews, an expert from the Modern Security Consulting Group openly stated that ‘[the organisation] has so many sources of income including in Nigeria and the whole region…it does get money from the piracy, especially from the west coast of Africa; drug trafficking helps, smuggling’.104 Although there are no verified links, Boko Haram is more than likely to be benefitting from offshore piracy,105 and this concern has been reportedly voiced by the US,106 which nevertheless has not yet imposed sanctions under the 13536 Executive Order (2010) ‘Blocking Property of Certain Persons Contributing to the Conflict in Somalia’. VI.  THE INTERNATIONAL RESPONSE

Responding to the immediate threat posed by maritime piracy to international humanitarian efforts in Africa and the safety of one of the crucial maritime routes in the world, the international community has deployed an unprecedented military presence at sea in the affected regions.107 Since December 2008, the EU has mobilised the naval forces of its Member States for Operation Atalanta following UNSC Resolutions 1814 (2008) and 1816 (2008) regarding the rising levels of piracy and armed robbery off the Horn of Africa and in the Western Indian Ocean.108 Its mandate covers the protection of WFP vessels delivering aid to displaced persons in Somalia, and the protection of African Union Mission in Somalia (­AMISOM) shipping. In addition, its forces operate as a deterrence, prevention and repression unit off the Somali coast, where they also offer protection to vulnerable shipping on a case by case basis, and also contribute to the monitoring of fishing activities off the coast of Somalia.109 In parallel and under similar counter-piracy duties, NATO has likewise launched operations Allied Protector and Ocean Shield which havesignificantly enhanced the safety of commercial maritime routes and

104 

See Modern Security Consulting Group, mosecon.com/tag/yan-st-pierre/. Haram: Coffers and Coffins; A Pandora‘s Box—the Vast Financing Options for Boko Haram’ (Beacham Publishing’s Terrorism Research & Analysis Consortium, 2015) trackingterrorism.org/article/new-financing-options-boko-haram/smuggling-and-piracy. 106  ‘US Concerned Gulf of Guinea Piracy could be Funding Boko Haram Violence’ (Pilot Africa, 27 March 2013) pilotafrica.com. 107 See further in JA Roach, ‘Countering Piracy off Somalia: International Law and ­International Institutions’ (2010) 104(3) American Journal of International Law 397; Z Keyuan, ‘­Maritime Enforcement of United Nations Security Council Resolutions: Use of Force and Coercive Measures’ (2011) 26(2) International Journal of Marine and Coastal Law 235. 108  See, UNSC Res 1814 (15 May 2008) UN Doc S/RES/1814, and UNSC Res 1816 (n 14). 109  Further on the role of EUNAVFOR, see eunavfor.eu/. 105  ‘Boko

Maritime Piracy as International Threat 191 international navigation in the region, eg,110 the establishment and monitoring of the Internationally Recommended Transit Corridor within the Gulf of Aden since August 2008.111 The above naval forces operate closely with the multinational naval partnership of Combined M ­ aritime Forces, which focus on the areas of defeating terrorism, preventing piracy, encouraging regional co-operation, and promoting a safe maritime environment.112 The concentrated action by the three counter-piracy maritime forces, as well as their interface with independently deployed naval missions from several other UN Member States and naval forces of the states of the Southern African Development Community has resulted in the reduction of piratical attacks in some regions currently.113 Apart from their purely operative role during counter-piracy missions, the various naval forces also undertake an important law enforcement task in the context of shiprider agreements as required under UNSC Resolution 1851 (2008).114 These are special arrangements concluded in accordance with UNCLOS, the SUA Convention, the 2000 United Nations Convention against Transnational Organized Crime and other relevant instruments, between the states and regional organisations fighting piracy off the coast of ­Somalia with countries willing to take custody of pirates in order to embark law enforcement officials from countries, in particular of the region, in order to facilitate the investigation and prosecution of persons detained as a result of these operations.115 The importance of that role was further

110 For the NATO counter-piracy operations, see www.nato.int/cps/en/natolive/­ topics_48815.htm. 111  Marlo Maritime Liaison Office, cusnc.navy.mil/marlo/Guidance/Corridor.htm. 112  See in particular the mission of Combined Task Force 151 to disrupt piracy and armed robbery at sea and to engage with regional and other partners to build capacity and improve relevant capabilities in order to protect global maritime commerce and secure freedom of navigation, www.combinedmaritimeforces.com. 113  Among the states that have deployed naval forces conducting counter-piracy operations are China, India, Indonesia, Japan, the Republic of Korea, Malaysia, Pakistan and the Russian Federation, which have co-operated in the Gulf of Aden, as authorised by UNSC Res 2077 (n 60). See further in UNGA, ‘Report of the Secretary-General: Oceans and the Law of the Sea 68/71’ (2013) UN DocA/68/71/Add.1. An important operational parameter in this context isthe Shared Awareness and De-confliction Initiative, which was established in 2008 as a mechanism of meetings aimed at co-ordinating activities between the states and coalitions involved inmilitary counter-piracy operations in the Gulf of Aden and the w ­ estern Indian Ocean. The meetings are held in Bahrain at regular intervals and are ­co-chaired on a rotational basis by the Coalition Maritime Forces, NATO and EU Naval Forces. See ­oceansbeyondpiracy.org/matrix/shared-awareness-and-deconfliction-shade. 114  UNSC Res 1851 (n 57). See further in T Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20(2) European Journal of International Law 411. 115  For the normative framework pertaining to transfers, along with a thorough discussion of the counter-piracy enforcement powers and their legal constraints, see R Geiß and A Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (Oxford, Oxford University Press, 2011) Chapters 3 and 4.

192  Alexandros XM Ntovas ­ ighlighted by UNSC Resolution 1976 (2011), urging states and internah tional organisations to share evidence and information for counter-piracy law enforcement purposes with a view to ensuring the effective prosecution of suspected, and imprisonment of convicted, pirates in conformity with international human rights law.116 The international enforcement response to maritime piracy has been significantly less pronounced in West Africa, given the different political geography existing in that part of the continent, where both Central and West Africa officials have underscored the need for implementing African solutions to African problems. In part this approach confirms an underlying regional wariness over perceptions of external interference that can be conveyed through the presence of foreign warships patrolling in the Gulf of Guinea, similar to the international naval operations off the coast of Somalia, but also out of the fear that it might be more destabilising than helpful in attracting criminal or terrorist attacks targeting the foreign warships.117 Hence the states in the region have retained a leadership role in this regard, supported by several regional organisations; namely, the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS) and the Gulf of Guinea Commission (GGC).118 International assistance therefore was provided for the immediate aim of facilitating and coordinating regional efforts on the basis of joint counter-piracy operations by the states of the region, and of supporting national capacity-building in the implementation of effective and practical measures enhancing maritime safety and security. The establishment in the long term of a joint maritime security architecture to counter piracy is placed under the auspices of the African Union (AU) in the context of the 2050 Africa’s Integrated Maritime Strategy,119 with one of the first actions to be the development and implementation of transnational and trans-regional maritime security coordination centres covering the whole region of the Gulf of Guinea, building on the 2008 ‘Memorandum of Understanding on the establishment of a sub-regional integrated coastguard network in West and Central Africa’ developed by the Maritime Organization of West and Central Africa (MOWCA) and the

116  A concise report on the basic international legal implications of counter piracy, looking at the legality of such acts in the context of international humanitarian law and human rights standards, is offered in Geneva Academy of International Humanitarian Law and Human Rights, Counterpiracy under International Law (Geneva, Geneva Academy, 2012). 117 UNSC, ‘Letter Dated 18 January 2012 from the Secretary-General Addressed to the President of the Security Council’ (18 January 2012) UN Doc S/2012/45 para 51. 118  In a summit that took place in Yaoundé, Cameroon, on 24–25 June 2013, the heads of states and the officials of the ECOWAS, ECCAS and GGC considered a comprehensive response to illicit and illegal activities in the Gulf of Guinea and adopted a series of key strategic documents to this end. 119  See pages.au.int/maritime/documents/2050-aim-strategy.

Maritime Piracy as International Threat 193 IMO.120 The basic legal framework at the moment is set by the ‘Code of Conduct concerning the repression of piracy, armed robbery against ships, and illicit maritime activity in west and central Africa’,121 being supported by the currently underfunded West and Central Africa Maritime Security Trust Fund.122 International counter-piracy and law enforcement operations will remain unproductive unless effective law-making and judicial structures are created to address the modern legal nature of piracy in all of its aspects. In this respect the main challenge initially arose out of the inadequate domestic legislation and the limited or lack of capacity in Somalia and other states in the region to undertake the custody and prosecution of suspected pirates after their capture at sea, which in some cases even led to pirates being released without facing justice regardless of whether there was sufficient evidence to support prosecution. The domestic law in a number of states, especially at the time, lacked provisions criminalising piracy and/or procedural provisions for the effective criminal prosecution of suspected pirates. This, in general, hindered—if not undermined—a more robust international counter­ piracy action for several years against the pirates off the coast of Somalia particularly, but recently there has also been a concern with regards to West African piracy where states in the region enjoy more stable political and social conditions. For instance, a recent UN report observed that Benin’s legal framework needs to be reformed regarding essential matters, such as the definition of piracy, in order to effectively address this threat. Characteristically, it indicated two recent piracy cases where suspected pirates were charged with generic offences, such as armed robbery, premeditated murder and conspiracy, due to the definition of the crime of piracy being outdated and inconsistent with UNCLOS. Moreover, universal jurisdiction, as provided under the Convention, was not incorporated in the Maritime Code of the country, thereby limiting Benin’s piracy jurisdiction to acts committed by either its citizens or on board ships under its flag.123 To this end the IMO, acting on a series of

120 The Memorandum aims at enhancing maritime safety, security and law enforcement throughout the region and forms the basis of the maritime security strategy within the ­African Maritime Transport Charter adopted by the AU in Durban in October 2009; see further in IMO, Strengthening Maritime Security in West and Central Africa (London, IMO, 2013) www.imo.org/en/MediaCentre/HotTopics/piracy/Documents/west%20africa %20Maritime%20Security.pdf. 121 Signed in Yaoundé on 25 June 2013, imo.org/ourwork/Security/westafrica/ Documents. See IMO, ‘IMO SG Welcomes New Piracy Code for West and Central Africa’ IMO News (2013 Issue 2) 6–7. 122  IMO, ‘Resolution on Prevention and Suppression of Piracy, Armed Robbery against Ships and Illicit Maritime Activity in the Gulf of Guinea’ (29 November 2013) A.1069(28). 123  UNSC, ‘Letter Dated 18 January 2012 from the Secretary-General Addressed to the President of the Security Council’ (19 January 2012) UN Doc S/2012/45 para 14.

194  Alexandros XM Ntovas UNSC resolutions,124 adopted on 29 January 2009 the Djibouti Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden, which aims include assisting the states in that region to develop appropriate regulatory and legislative frameworks to combat piracy, enhancing their enforcement capacity, interdiction of suspect vessels, and prosecution of suspected pirates. A similar initiative is now being developed for the other side of the continent through the Code of Conduct concerning the Prevention of Piracy, Armed ­Robbery against Ships and Illicit Maritime Activity in West and Central Africa.125 In the meantime, the latest developments in the UN reveal a major change in the strategy of the international community to address the problem of piracy off the Somali coast by changing its focus at a judicial level from a regional or international tribunal to a system of specialised anti-piracy courts.126 The proposed scheme envisages a number of states in the region, including Somalia, establishing independently operating courts with substantial international assistance, and assisted by a regional prosecution centre acting in co-operation with the respective jurisdictions. As employed in the context of the various UN documents to date, the term ‘specialised anti-piracy court’ considers ideally a court operating in the respective jurisdiction through its domestic authorities, which include national judges, prosecutors and administrative staff, operating under municipal law and providing for the efficient conduct of piracy cases, conforming to international law and international human rights standards. In terms of structure, the specialised anti-piracy courts system puts in place a scheme of independently operating courts which comprises three components. First, a special national court in Somalia, either established within the jurisdiction of the country—respectively in Somaliland and Puntland, or even operating on an extraterritorial basis outside the Somali domain. Its full operation, however, currently depends on the progress made with regard to capacity-building under the Djibouti Code of Conduct and the ability of the Federal Government to implement the rule of law ashore in Somalia. Second, a number of specialised courts within the national judicial system of other states in the region that will operate in parallel with the Somali courts in exercising universal jurisdiction. At the moment more 124  UNSC Res 1816 (n 14); UNSC Res 1838 (22 May 2008) UN Doc S/Res/1838; UNSC Res 1846 (n 8) and UNSC Res 1851 (n 57). 125  Signed on 25 June 2013. The implementation of this Code takes place within the wider context of UNSC Res 2018 (n 70) and UNSC Res 2039 (n 17) to prevent and repress piracy in the Gulf of Guinea, consistent with the maritime strategies of the AU, ECCAS, ECOWAS and GGC. 126  As set forth in UNSC Res 2015 (n 64).

Maritime Piracy as International Threat 195 than 20 states worldwide have been involved in prosecuting, or have prosecuted, over 1,200 persons suspected of piracy.127 But emphasis is increasingly placed on directing the prosecution and imprisonment by states in the immediate region, such as Kenya, Seychelles, Mauritius and the United Republic of Tanzania, with assistance provided by the UNODC Counter-Piracy Programme, the Trust Fund and other international organisations and donors, in coordination with the International Trust Fund Supporting Initiatives of the Contact Group on Piracy off the Coast of Somalia, as these are considered the pivotal states within the system of specialised anti-piracy courts. Other states in the region conducting prosecutions include France (the Comoros), Madagascar, Oman, the United Arab Emirates, Yemen and India. Qatar also recently expressed its readiness to move in this direction. Third, the ‘Regional Fusion and Law Enforcement Centre for Safety and Security at Sea Regional Anti-Piracy Prosecution & Intelligence Coordination Centre’, established since February 2013 (formerly the Regional Anti-Piracy Prosecution and Intelligence Coordination Centre) in the ­Seychelles, has already started working in tandem with several of the special national courts in the countries mentioned above, and is charged with the task of coordinating the required international support and acting as a focal point for prosecution purposes piracy suspects, as well as providing a standard location for their transfer under shiprider agreements by the patrolling naval forces.128 The Report of the Secretary-General estimates that if, (a) the required changes are effected in the respective domestic legal orders on time, and (b) international assistance becomes available for the implementation of the proposed scheme, the specialised anti-piracy courts in Somalia, Kenya, Seychelles, Mauritius and the United Republic of Tanzania will be able from 2014 onwards to collectively conduct a maximum of 125 piracy prosecutions per year. This will be in accordance with international s­ tandards, involving up to 1,250 suspects, which is a figure that exceeds the total number of all suspects prosecuted globally to date.129

127  UNGA, ‘Report of the Secretary-General on the Modalities for the Establishment of Specialized Somali Anti-piracy Courts’ (15 June 2011) UN Doc S/2011/360. 128 Eg Kenya has, since 2008, distinguished itself in the global war against piracy by undertaking prosecutions in the national courts of suspected pirates arrested in the high seas and handed over by navies under such agreements. See further in PM Wambua, ‘The Jurisdictional Challenges to the Prosecution of Piracy Cases in Kenya: Mixed Fortunes for a Perfect Model in the Global War against Piracy’ (2012) 11 World Maritime University Journal of Maritime Affairs 95. 129 ‘Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia’in UNSC, ‘Letter Dated 24 January 2011 from the SecretaryGeneral to the President of the Security Council’ (25 January 2011) UN Doc S/Res/2011/30. For an overview of the Report, see AXM Ntovas, ‘Towards the Establishment of Specialised Anti-piracy Courts’ (2012) 12(6) Shipping and Trade Law 1.

196  Alexandros XM Ntovas The rationale underlying the creation of such a peculiar system of specialised anti-piracy courts is on the one hand to provide an immediate solution to the vexatious issue of ongoing piratical activities. On the other hand it aspires to offer a viable prospect for the gradual strengthening of the rule of law within Somalia as to allow the country ultimately to assume the total control of all piracy cases emanating from its jurisdiction. The scheme therefore aims at enhancing Somali responsibility and to increasingly introduce its active involvement in efforts to apprehend and prosecute those behind acts of piracy, restore the rule of law in areas harbouring pirates and monitor the coasts. The decision as to specialised national anti-piracy courts reflects the current necessity not only for an immediate restoration of the rule of law off the Somali coast, but also serves the expedient aim of judicial capacitybuilding and gradual development of Somalia’s infrastructure. This will enable Somalia to undertake an increasingly active involvement within the overall context of international efforts and enhance its national responsibility by bringing the country to the forefront of a future comprehensive solution to the problem of piracy. As regards the latter, for example, the UNODC,acting on UNSC Resolution 1976 (2011), launched the Piracy Prisoner Transfer Programme in 2012, which facilitates the transfer of convicted pirates back to Somalia and their imprisonment arrangements. While ensuring humane and secure imprisonment conditions, the Programme aims torehabilitate and successfully reintegratethe prisoners back into society as they will be close to their family, culture, language and religion.130 This matter acquires exceptional importance in relation to children that have been recruited by piracy networks.131 However, as maritime piracy in its contemporary form is not only concerned with the perpetrators or suspects captured at sea, the UNSC has repeatedly expressed the importance for these courts to enjoy a wideranging jurisdiction to also prosecute anyone who incites or intentionally facilitates piracy operations, as well as those financing such acts and laundering its proceeds. It is integral to a comprehensive judicial response, which safeguards future security concerns of the countries affected and other states alike, that also individuals on land responsible for piracy and

130  See further in UNSC, ‘Report of the Secretary-General Pursuant to Security Council Resolution 2020 (2011)’ (22 October 2012) UN Doc S/2012/783 paras 55–58. 131  WG2 of the Contact Group on Piracy off the Coast of Somalia is preparing guidelines on determining the age of apprehended individuals and the handling of juvenile suspects by capturing or prosecuting states, as well as on the detention and prosecution of those who recruit juvenile pirates. The possibility to retrain, re-educate and rehabilitate juvenile suspects, where appropriate, should remain an important consideration. In this regard, states should be guided by the Convention on the Rights of the Child and its standards, as interpreted by the Committee on the Rights of the Child.

Maritime Piracy as International Threat 197 those who enable this criminal activity to thrive be identified and accordingly targeted.132 This would include, as discussed above, key figures of criminal networks involved in piracy who illicitly plan, organise, facilitate, or finance and profit from such activities ashore.133 A limited yet increasing number of states have thus taken measures to amend and update their domestic law as to criminalise the diverse constitutive elements of contemporary piracy. Indicatively, Bangladesh and the Netherlands have enacted relevant legislation to prosecute acts of piracy and armed robbery against individuals who incite, plan, organise, facilitate or finance piracy. The Netherlands, and other states in the European Union, in particular, are currently involved in initiatives for detecting and prosecuting those who finance piracy, including organisers and negotiators, and where ­possible, to seize and confiscate the financial assets of these suspects in co-operation with regional and national authorities in Somalia.134 VII. CONCLUSION

In spite of the declining number of incidents, it would seem premature to conclude that the international and transnational threat of piracy is over. That said, it should be remembered that there were at least two points in time during the previous century where piracy had not been considered ‘[o]f sufficient real interest for the state of the world’135 and therefore suggested that ‘[a]ll provisions on piracy should be deleted, because piracy, being an eighteenth century concept, no longer constituted a general problem’.136 Pirates have not disappeared, they may simply remain at bay, potentially preparing for future attacks137 when they assess the time is 132  See further in UNSC, ‘Report of the Secretary-General pursuant to Security Council Resolution 2020 (2011)’ (22 October 2012) UN Doc S/2012/783 para 69. 133  UNSC Res 1950 (n 10) para 15; UNSC Res 1976 (n 29) para 15–17; UNSC Res 2015 (n 64) Recital 17 in the preamble; and UNSC Res 2020 (n 7) Recital 5 in the preamble. 134  See UNSC, ‘Letter Dated 23 March 2012 from the Secretary-General to the President of the Security Council (Compilation of information received from Member States on measures they have taken to criminalize piracy under their domestic law and to support the prosecution of individuals suspected of piracy off the coast of Somalia and imprisonment of convicted pirates)’ (26 March 2012) UN Doc S/2012/177. 135  Statement by the Polish representative to the Council of League of Nations as to the reasons why the draft on the suppression of piracy should be omitted by the work of a subsequent codificatory conference. The proposal was approved in June 1927, L Azubuike, ‘­ International Law Regime against Piracy’ (2009) 15(1) Annual Survey of International& ­Comparative Law 48–49. 136  Statement by the delegation of Uruguay to the first United Nations Conference for the Law of the Sea during the 1958 negotiations, A Petrig, ‘Private Prevention against Piracy’ (Regional Conference of the International Law Association, Athens, August 2013) (on file with the author). 137  N Rayman, ‘Did 2013 Mark the End of Somali Piracy?’ Time Magazine (6 January 2014) world.time.com/2014/01/06/.

198  Alexandros XM Ntovas right to resume their activities.138 There is no doubt that successful piratical attacks could easily increase, or even resume at the levels recorded during 2011 and 2012. Therefore, a visible presence of naval forces in readiness to undertake vigorous suppressing operations, consistent with international law, is necessary. The shipping industry—namely ship-owners, shipping companies, ship-operators, masters and crews—should also not relax selfprotection policies and become oblivious to this peril. They must ensure continuous implementation of the BMP-4(2011) and all appropriate measures indicated by IMO to protect their ships and those on board.139 In the meantime, the period that currently unfolds in the wake of contemporary maritime piracy represents a crucial opportunity for the international community to influence international law in allowing the establishment of an effective regime for its suppression. The international threat, which has been engendered by contemporary maritime piracy, is yet to be seen at its full extent as it is not of immediate concern to international navigation in relation to the safety of seafarers and commercial nautical routes, nor does it solely impact upon global trade and international economy. Maritime piracy has not been called ‘contemporary’ in this chapter due to any profound change in the operation of pirates at sea, or to provide a current understanding of this concept in strategic terms of naval policy, as has been presented elsewhere.140 It has been described as such for having evolved in the twenty-first century into a transnational criminal activity that affects the seas and lands alike with no state being capable of suppressing it on its own; and, at the same time, for having devolved into a secondary activity that may be employed on the basis of a risk-reward business model to opportunistically obtain significant amounts of money for the financing of other criminal undertakings, and possibly international terrorism.141 This situation thus repositions piracy as a truly international crime, for which the need for coordination and co-operation among states has been underscored by the UN Open-ended Informal Consultative Process 10 years before the annus horribilis.142

138 

International Chamber of Shipping, Annual Review (London, ICS, 2013) 20. IMO, ‘IMO and Shipping Industry Bodies Urge Continued Application of Anti-piracy Measures’ IMO News (2013, Issue 1) 10. 140  J Kraska, Contemporary Maritime Piracy: International Law, Strategy, and Diplomacy at Sea (Santa Barbara, Praeger, 2011). 141  See also the similar approach taken by MN Murphy, Contemporary Piracy and Maritime Terrorism: The Threat to International Security (Abingdon, Routledge, 2013). 142  UNGA, ‘Report on the Work of the United Nations Open-ended Informal Consultative Process Established by the General Assembly in its Resolution 54/33 in Order to Facilitate the Annual Review by the Assembly of Developments in Ocean Affairs at its Second Meeting’ (22 June 2001) UN Doc A/56/121 para 52. See further P Mallia, ‘The Fight against Piracy and Armed Robbery against Ships off the Coast of Somalia’ in NA Gutiérrez, Martínez (ed), Serving the Rule of International Maritime Law—Essays in Honour of Professor David Joseph Attard (Abingdon, Taylor & Francis, 2010) 221–22. 139 

Maritime Piracy as International Threat 199 Maritime piracy thus poses the fundamental challenge of reforms to international law as it calls, amongst other things, for a profound shift in how sovereignty and legitimacy is conceived when they are uncoupled from the territorial aspect of the modern nation-state and also questions preconceived norms with respect to the definition of this crime nowadays, as well as numerous other issues ranging from the monopoly on the legitimate use of force at sea to the allocation of jurisdictions with regard to prosecuting, imprisoning and rehabilitating pirates.143 International law therefore has an important role to play, and historically in relation to piracy has demonstrated the potential to resist its abuse as a mere instrument of politics and special interests, retaining its status as an independent normative authority to correct or regulate such interests.144 Yet, despite the extraordinary situation in Somalia and correspondingly prolific activity demonstrated by the UNSC on the issue of maritime piracy in recent years, international law has regrettably not undergone any significant doctrinal changes that would allow a comprehensive legal framework to develop with a view to effectively addressing this problem worldwide. The threat emanating from maritime piracy has yet to pass the threshold standard of what is considered an international threat on its own merits and within the stricto sensu meaning of ‘[a]cts causing threats to international peace and security’, as for instance in the case of acts of international terrorism pursuant to UNSC Resolution 1368 (2001).145 Accordingly, the long stream of resolutions adopted since 2008 under UN Charter Chapter VII, whereby the UNSC authorised the use of ‘all necessary means’ in suppressing piracy, do not radically change the ­landscape of international law, apart from few pro tempore operational exceptions, such as the reverse of the hot pursuit so as to allow international enforcement units operating on the high seas to trail pirates into waters under coastal jurisdiction. This indeed represents an up-to-date adjustment of a well-established principle of the law of the sea, as codified in UNCLOS. However, the procedural requirement for Somalia’s prior written consent, which is also subject to renewal, and the conceding of such powers only to co-operating states and international organisations, without doubt lessens its importance. Furthermore, the UNSC has repeatedly stressed that such authorisation is to apply only with respect to the situation in Somalia, it does ‘not affect the rights or obligations or ­responsibilities of member states under international law, including any rights or obligations under the Convention, with respect to any other situation’, and also emphasised

143  For an international relations theory approach, see MJ Struett, JD Carlson, MT Nance (eds), Maritime Piracy and the Construction of Global Governance (Abingdon, Routledge, 2012). 144  M Kempe, ‘Even in the Remotest Corners of the World: Globalized Piracy and International Law, 1500–1900’ (2010) 5 Journal of Global History 353. 145  See, UNSC Res 1368 (12 September 2001) UN Doc S/RES/1368.

200  Alexandros XM Ntovas in particular that ‘it shall not be considered as establishing customary international law’.146 By the same token, the authorisation in UNSC Resolution 1851 (2008) to engage in counter-piracy action on Somali soil must be viewed as a mediocre qualification of the territoriality principle, as Chapter VII operations do not need to be endorsed by the receiving state.147 Thus, the limited ambit of the UNSC’s maritime enforcement resolutions may be attributed to the very nature of the existing international structure, which—for better or worse—is profoundly centred upon an old-fashioned, unqualified conception of individual states’ territorial sovereignty.148 At the present stage, where the global community undergoes a phase of transitional securitisation, it would be advisable for international law to evolve congruently with a twofold approach. This should consist of, on the one hand, a codification and progressive development and, on the other hand, a parallel systemic integration by the domestic courts of those states that find themselves at the forefront of combating contemporary maritime piracy, and which are willing to make better use of universal jurisdiction. Subtle refining of legal processes of this kind nonetheless will remain ineffective unless the international community concurrently forge the basis of a domestic framework to promote the social and economic development of the local communities with the aim of sustainable growth as a means to tackle the underlying causes of piracy.149 The political economy of piracy, in Somalia particularly, cannot be transformed by an external top-down intervention based on a formulaic security-development nexus.150 In relation to the former aspect, it should be first noted that along with being consistent with the cardinal principles of general international law, a comprehensive regime to combat maritime piracy shall furthermore overcome certain obfuscation that emanates from the traditional law on piracy. The definition of piracy itself in UNCLOS, for example, has been considered unclear in the sense that piracy is not defined as only one type of act and, depending on the case, has been interpreted even by the courts

146 

UNSC Res 1816 (n 14) para 9. Res 1851 (n 57); D Guilfoyle, ‘Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts’ (2008) 57 International and Comparative Law Quarterly 695 and ‘Counter-Piracy Law Enforcement and Human Rights’ (2010) 59(1) International and Comparative Law Quarterly 147–49. 148  Also similarly argued by K Zou, ‘Maritime Enforcement of United Nations Security Council Resolutions: Use of Force and Coercive Measures’ (2011) 26(2) International Journal of Marine and Coastal Law 238. 149  World Bank, ‘Ending Somali Piracy Will Need On-Shore Solutions and International Support to Rebuild Somalia’ (World Bank, 11 April 2013) worldbank.org/en/news. 150  GC Oliveira, ‘New Wars at Sea: A Critical Transformative Approach to the Political Economy of Somali Piracy’ (2013) 44(1) Security Dialogue 3. 147  UNSC

Maritime Piracy as International Threat 201 of advanced legal systems as being either too narrow or too vague.151 Yet, amending UNCLOS in this respect, as has been suggested elsewhere,152 would be the least preferable option for policy reasons as well as an unlikely prospect in terms of practical expediency. Contrariwise, building upon it offers a more stable and effective legal framework, given its universal acceptance and constitutional nature as a document maintaining the international public order of oceans.153 As noted elsewhere, maritime security is an amorphous concern sitting within a reasonably well-defined legal framework.154 To this end, codification and progressive development of piracy law in regional instruments, reflecting the needs of the particular area they address, at this stage constitute a more convenient starting point for the complex process, which in time will allow a worldwide consensus. In this sense, a review of the international law on piracy shall aim initially at establishing the creation of a robust system of enforcement at international level by adjusting the current jurisdiction of states in the zones under national authority, namely territorial waters and archipelagic waters, as well as in the EEZ, without however jeopardising the sovereignty of coastal states.155 In this context, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in the periphery of Asia is an instrument that must be viewed as the setting for a model on regional co-operation.156

151 Eg United States v Mohamed Ali Said [2010] US Dist; United States v Hasan [2010] US Dist. See B Hart Dubner, ‘On the Definition of the Crime of Sea Piracy Revisited: Customary vs. Treaty Law and the Jurisdictional Implications Thereof’ (2011) 42(1) Journal of Maritime Law & Commerce 71. 152 Among others, see CA Harrington, ‘Heightened Security: The Need to Incorporate Article 3bis (1)(A) and 8bis (5)(E) of the 2005 Draft SUA Protocol into Part VII of the United Nations Convention on the Law of the Sea’ (2007) 16 Pacific Rim Law & Policy Journal 107, and T Garmon, ‘International Law of the Sea: Reconciling the Law of Piracy and Terrorism in the Wake of September 11th’ (2002) 27 Tulane Maritime Law Journal 257. 153  In this respect, it should not be overlooked that in the case of Somalia, piracy proved a more controversial issue, owing to the anomaly caused within the constitutional order of oceans, as the country’s maritime claims have been inconsistent with UNCLOS—an aspect that has been, for the moment, settled with the re-discovery of a 1989 national law that brought Somalia’s previously excessive territorial waters claim into compliance with the Convention. This normalisation subsequently facilitated the implementation, under the Kampala process, of the Somali Maritime Resource and Security Strategy, which was endorsed by the President of the Federal Government of Somalia and participating states at the 14th Plenary of the CGPCS in New York on 1 May 2013, aiming at advancing the capacity of Somalia to regulate, police, secure and exploit its national maritime domain—particularly within the EEZ. 154  V Lowe in his preface to N Klein, Maritime Security and the Law of the Sea (Oxford, Oxford University Press, 2011). 155  JM Isanga, ‘Countering Persistent Contemporary Sea Piracy: Expanding Jurisdictional Regimes’(2009) 59 American University Law Review 1319. 156  Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in the Periphery of Asia (adopted 11 November 2004, entered into force 4 September 2006) www.mofa.go.jp/mofaj/gaiko/kaiyo/pdfs/kyotei_s.pdf.

202  Alexandros XM Ntovas However, reforms of this kind alone would be limited in effectiveness, if not out of date, as they do not take into consideration the strong links of contemporary piracy with the criminal activities onshore. Therefore, the crime of maritime piracy shall also be connected to other constitutive aspects, as argued earlier. There are a number of international instruments in this respect that can provide both substantive and procedural links to piracy and consequently broaden up the jurisdiction of prosecution both ratione personae and ratione materiae, such as the 2003 UN Convention against Transnational Organized Crime157 and the 2003 UN Convention against Corruption.158 Although such criminal offences are evidently manifest in the contemporary nature of maritime piracy,159 they are not currently unified at the international level into a core counter-piracy legal regime for the purpose of enforcement, prosecution and incarceration. As commented in more general terms elsewhere, ‘when considering the narrow definition of piracy coupled with the wide powers to respond to piracy, it may be seen that a small door may be opened to a large room for action. The greatest challenge lies in getting through the door in the first instance.160

In the context of this approach, however, the decision of the international community to set aside the plans for establishing an international or regional tribunal for piracy, as was provided among other options in a 2010 report by the UNSG,161 must be seen as a regressive step. 157  UN Convention against Transnational Organised Crime (adopted 15 November 2000, entered into force 29 September 2003) 2225 UNTS 209 (UNTOC); see also UNGA Res 55/25 (8 January 2001) UN Doc A/RES/55/25. 158 UN Convention against Corruption (adopted 31 October 2003, entered into force 14 December 2005) 2349 UNTS 41; see also UNGA Res 58/4 (31 October 2003) UN Doc A/ RES/58/4. 159  Eg Article 5 UNTOC requires states parties to criminalise, as a distinct offence, the participation in an organised criminal group, either by criminalising the agreement with one or more other persons to commit a serious offence and/or by criminalising the conduct of a person who, with knowledge of the aim of the group to commit criminal activities, either takes an active part in the criminal activities of an organised criminal group or takes part in non-criminal activities in the knowledge that the participation will contribute to the criminal aim of the organised criminal group. In addition, the Convention also requires states to criminalise organising, directing, aiding, abetting, facilitating or counselling the commission of serious crimes involving an organised criminal group. Moreover, Article 6 UNTOC requires states parties to criminalise the conversion or transfer of proceeds of crime for the purpose of concealing or disguising their illicit origin and the concealment or disguise of the true nature or source of proceeds of crime. States are also required to criminalise the acquisition, possession or use of proceeds of crime and the participation or attempt to commit any of these offences, subject to the basic concepts of their legal systems. 160 N Klein, Maritime Security and the Law of the Sea (Oxford, Oxford University Press, 2011) 305. 161  UNSC, ‘Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, including, in particular, options for creating special domestic chambers

Maritime Piracy as International Threat 203 This nevertheless leaves scope for domestic courts to undertake a s­ ystemic integration of the various criminal offences, depending on the case as to allow state practice to consolidate in this direction. For example, this could be done in relation to forging an international public policy concerning the payment of ransoms, given the legal implications arising with regard to payments being channelled into the financing of transnational crime or even the funding of terrorism.162 Moreover, it would also address the challenge arising from the lack of appropriate incorporation of the relevant international instruments in national law by states exercising primary jurisdiction, as underscored by the UNSC.163 Remarkably, despite presenting the only true instance that customary international law knows of,164 the assumption of complementary universal jurisdiction in relation to prosecuting piracy has rarely been invoked by domestic courts.165 Its use would allow courts to shape ‘the new architecture of transnational justice’,166 at the same time acting consistently with the cardinal principles of general international law, such as the territoriality or nationality principle. In this context it should be remembered that the collapse of a functioning state, and the resultant vacuum

possibly with international components, a regional tribunal or an international tribunal and corresponding imprisonment arrangements, taking into account the work of the Contact Group on Piracy off the Coast of Somalia, the existing practice in establishing international and mixed tribunals, and the time and resources necessary to achieve and sustain substantive results’ (26 July 2010) UN Doc S/2010/394. In this Report, a number of possible options were proposed to further the aim of prosecution and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia. Clustered into what could be seen at the time as three emerging trends, those options envisaged the possibility of a court being established either in the form of a special national court, or—with international participation—in the form of either a regional or fully fledged international tribunal. The UNSC, in a series of subsequent resolutions, namely UNSC Res 1976 (n 29), UNSC Res 2015 (n 64) and UNSC Res 2020 (n 7) decided to continue its consideration as a matter of urgency and favoured the prospect of establishing specialised anti-piracy courts in Somalia and other states in the region, as discussed earlier. For a synopsis of all the options, see AXM Ntovas, ‘UN Responses to Piracy’ (2010) 10(8) Shipping & Trade Law 4. 162  AS Kolb, TR Salomon and J Udich, ‘Paying Danegeld to Pirates—Humanitarian Necessity or Financing Jihadists?’ (2011) 15 Max Planck Yearbook of United Nations Law 105. 163  Among others, UNSC Res 1976 (n 29) paras 13–14. 164  Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] ICJ Rep 3, separate opinion of President Guillaume, para 5. In general see KC Randall, ‘Universal Jurisdiction under International Law’ (1987) 66(4) Texas Law Review 785. Cf S Yee, ‘Universal Jurisdiction: Concept, Logic, and Reality’ (2011) 10(3) Chinese Journal of International Law 503. 165 E Kontorovich and S Art, ‘An Empirical Examination of Universal Jurisdiction for Piracy’ (2010) 104(3) American Journal of International Law 436; see also Y Huang, ‘Universal Jurisdiction over Piracy and East Asian Practice’ (2012) 11(4) Chinese Journal of International Law 623. 166 As in more general terms and broadly argued by DF Orentlicher, ‘The Future of ­Universal Jurisdiction in the New Architecture of Transnational Justice’ in S Macedo (ed), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (Pennsylvania, University of Pennsylvania Press, 2006).

204  Alexandros XM Ntovas of s­ overeignty therefrom, as in the case of Somalia, redefined in the most challenging terms the rationale underlying universal jurisdiction over pirates, who in operating as hostes humani generis167 put themselves ‘outside the jurisdiction of any State’.168 Extended debates over the linkages between contemporary maritime piracy and terrorism must be seen in the context of twenty-first century international security as nothing more than an effete legal exercise and purely political reminiscing of a long passed geopolitical rivalry. The critical question is not whether the international crime of maritime piracy can be conceivably subsumed as a matter of legal definition under that of terrorism. This is a question to be answered easily in the negative, although it would be difficult to do so without noting the irony that international law in terms of suppression also considers terrorism to be nothing more than a criminal act.169 In practice, it is highly likely for piracy to be employed, if not already through the affiliation of its financiers to transnational organised crime, as a secondary criminal activity for the funding of terrorist activities. At the moment, links are more likely to suggest arrangements resulting from mutual convenience rather than a shared ideology. However, there is nothing to prevent particular acts from being characterised as both if piracy is used to raise money or otherwise fund an act of terrorism. One cannot fail to notice that both the upsurge of maritime piracy and the rise of international terrorism in Somalia has taken advantage of the sovereignty vacuum, and therefore the commonly held perception of the two criminal activities being separate and unrelated must be contested in the context of global security.170 This need will certainly be further highlighted in the near future by the increasingly volatile situation in West Africa, where there is a persistently increasing and determinedly aggressive practice of piracy in the Gulf of Guinea, along with a deeply rooted transnational organised network operating in the coastal states, and, more worryingly, a rise of Islamic terrorist activities in the hinterlands, such as the Movement for the Unity and Jihad in West Africa.171

167 

SS Lotus Case (n 1) para 190. phrase reoccurs in UNCLOS Arts 100, 101(a)(ii) and 105. Cf the departure of the extra-territorial doctrine from its original conception, as expressed in Re Piracy Jure Gentium [1934] AC 586 (Privy Council) 589, considering that because pirates commit their crimes beyond the law of nations, they place themselves ‘beyond the protection of any State’; see further in RP Kelley, ‘UNCLOS, but No Cigar: Overcoming Obstacles to the Prosecution of Maritime Piracy’ (2010) 95(6) Minnesota Law Review 2294. 169  R Haywood and R Spivak, Maritime Piracy (London, Routledge, 2012) 75–76. 170  CL Daniels, Somali Piracy and Terrorism in the Horn of Africa (Toronto, Scarecrow Press, 2012). 171 See Movement for the Unity and Jihad in West Africa (Beacham Publishing’s Terrorism Research & Analysis Consortium) trackingterrorism.org/group/movement-unity-andjihad-west-africa-mujao. 168  This

Maritime Piracy as International Threat 205 Given that all of the above processes aim at upholding the rule of law, another more specific concern that ought to be raised in connection with the law-making priorities of the international community in the immediate future is the regulation of private enforcement on the high seas. The international approach for various reasons, including the urgency, number, nature and scope of attacks at sea, as well as the ensuing cost for their suppression, has understandably favoured the development of a stakeholder driven approach to address maritime piracy. In this context the shipping industry has shown an uncritical enthusiasm for the employment of PCSA, which has been a very successful measure and—conveniently­ for governments—it is undertaken at the expense of the shipping industry in the first instance before this cost is transferred to the consumer. The standardisation process in consultation with IMO, which was discussed earlier, should be conducted in a more formalised context and at the public international law level in order to ensure the necessary guarantees. Especially, in view of the fragile balance in the international system during the transitional securitisation where non-state actors have emerged as players, states cannot afford to concede unconditionally such rights to modern ‘privateers’, who eventually, if left unchecked, will contribute in their own special way to lawlessness on the sea. Any life, whether a seafarer’s or a pirate’s, which is unjustifiably lost, is bound to undermine the very notion of the rule of law and therefore the entity being responsible, in private, public, national or international law, should be held accountable. It would thus be in the interest of the international community to protect erga omnes obligations for the respect of human rights through the process for the further refinement and adoption of an international convention on the regulation, oversight and monitoring of Private Military and Security Companies,172 and not be thwarted by private countervailing motives or individual national expediencies in this respect. Finally, a comprehensive and viable solution to contemporary maritime piracy must essentially occur within a broader state-building process. Accordingly, this requires that counter-piracy enforcement at sea should take place alongside a similar rigorous effort to advance the rule of law ashore, to rebuild in Somalia, and improve in the states of West Africa, an effective, uncorrupted and transparent governance system in close co-operation with the national authorities and civil society. Peace and s­ tability, the strengthening of state institutions, sustainable economic

172  An update of the ongoing open-ended intergovernmental process is provided at ohchr. org; See ND White, ‘The Privatisation of Military and Security Functions and Human Rights: Comments on the UN Working Group’s Draft Convention’ (2011) 11(1) Human Rights Law Review 133. In relation to maritime piracy, see A Priddy and S Casey-Maslen, ‘Counter-Piracy Operations by Private Maritime Security Contractors Key Legal Issues and Challenges’ (2012) 10 Journal of International Criminal Justice 839.

206  Alexandros XM Ntovas growth, social development and respect for human rights are necessary to create the conditions for a full and durable eradication of piracy on both sides of the continent. In particular for Somalia, where the ongoing situation still poses an immediate threat to international peace and security, the challenges to the Federal Government that emerged in September 2012 at the completion of the Kampala Accord and the Roadmap to End the Transition are even more complex—as seen in a series of attacks during 2014 and 2015 in ­Mogadishu, Garoowe and Leego by the insurgent group Al Shabaab, which constitute a terrorist threat to Somalia and the international community. Any effort against piracy and terrorism should therefore be indissolubly linked to, and foster reconciliation through, broad-based, inclusive and representative Somali institutions establishing a constitutionally accountable and effective federal government across the country to stability and security through democratic procedures for general elections in 2016. Maritime piracy is steered with the taste of sea salt in the air, but its birth and rising is deeply ingrained in the sand of lawless lands.

9 Terrorism: A Threat to Security? LYDIA DAVIES-BRIGHT

I. INTRODUCTION

S

INCE 9/11, INTERNATIONAL organisations and governments have been focused on the threat of terrorism. The language of war and fear has been used to describe what is perceived to be a serious and dangerous threat to the universal values of democracy, human rights and the rule of law.1 The ‘severe’2 existential threat to domestic and international security posed by (Islamic) terrorism, with the capability to strike at any time, in any place, has been used to justify the increase in exceptional counter-measures purported to increase the security of both state and citizen.3 The modus operandi and modus imperandi of modern terrorism, combined with the ‘ruthless character’ of its actions,4 has instilled fear in the hearts of Western powers and demands a response. In this fight against a shadowy and nebulous enemy, notions of ‘freedom’ and ‘justice’

1  See, eg Former US President GW Bush stating that ‘freedom itself is under attack’, that ‘The terrorists’ directive commands them to kill Christians and Jews, to kill all Americans’ and that terrorists ‘hate … a democratically elected government’ and so the US and its allies were now at ‘war’ in his Address to a Joint Congress (20 September 2001) edition.cnn. com/2001/US/09/20/gen.bush.transcript/; ‘Terrorism … is a global threat to democracy, the rule of law, human rights and stability, and therefore requires a global response.’ UN ­Secretary-General­ K Annan (17 June 2004) SG/SM/9372 www.un.org/News/Press/docs/2004/sgsm9372. doc.htm. 2 UK Government’s assessment of the threat posed by international terrorism: www. gov.uk/terrorism-national-emergency/terrorism-threat-levels. 3 International Commission of Jurists, Assessing Damage, Urging Action: Report of the ­Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights (Geneva, ICJ, 2009) foreword v. 4  A Roberts, ‘Countering Terrorism: A Historical Perspective’ in A Bianchi and A Keller (eds), Counterterrorism: Democracy’s Challenge (Oxford, Hart Publishing, 2008) 3.

208  Lydia Davies-Bright have been pursued at the expense of fundamental principles and rules laid down and largely accepted by the international community.5 The counter-terrorism measures and actions of the post-9/11 era repeatedly prioritise state security over individual human rights but, despite considerable expenditure in human and material resources, the threat from terrorism has actually increased6 and Western states remain convinced that an attack from international terrorism is highly likely.7 Thus, the question is raised of whether or not the sacrificing of civil liberties and human rights to security concerns has been worthwhile. This chapter examines how law has been used to legitimise political responses to the perceived threat of terrorism and also its use in justifying and facilitating the expansion and use of, as opposed to limitation of, public powers. The fear of terrorism is used to rationalise measures that infringe human rights. Consequently, in the case of terrorism at least, law follows, rather than regulates, power. It is argued that the individual citizen now enjoys less protection from the use of state power as the safeguards of human rights and civil liberties are no longer adequate protection in a world where being a suspect is potentially sufficient to warrant an executive death sentence. The chapter begins by considering the foundational human rights principle of human dignity, concepts of statehood and security and the foundational principles of ethics that underpin human rights. Against this background, it then examines the idea of the individual as seen through the lens of key events in the developing story of terrorism, specifically, the 1988 Lockerbie bombing and the extra-judicial killings of Jean Charles ­Menezes in 2005 and Osama bin Laden in 2011. It c­ onsiders the ­philosophical basis of the arguments used to justify the prioritisation of security, before concluding that the individual human person no longer counts in the fight against terrorism and is often subordinated to the ­overriding needs of the state in the face of perceived security threats. Thus, it is argued that, as a consequence of the securitisation of terrorism, whilst state security may be enhanced, the individual human person is no safer—and is arguably less safe.

5 See, eg KJ Greenberg and JL Dratel (eds), The Torture Papers: The Road to Abu Ghraib (Oxford, Oxford University Press, 2005) detailing the political and administrative process that led to soldiers torturing detainees in Abu Ghraib and elsewhere in an effort to extract information for use in the fight against terrorism. The torture was committed in direct violation and knowing disregard of the detainees’ non-derogable human right not to be tortured or mistreated—the rationale being that it was necessary to protect freedom and the Western way of life. 6  S Pickering, J McCulloch and D Wright-Neville, Counter-Terrorism Policing: Community, Cohesion and Security (New York, Springer, 2008) 9. 7  UK Government’s assessment (n 2).

Terrorism: A Threat to Security? 209 II.  THE FOUNDATIONAL PRINCIPLE

A.  The (Modern) Origin of the Inviolability of Human Dignity At the end of World War II, states felt compelled to respond to the scale and extent of the systematic violence visited on those peoples who were seen by the Nazi regime as being less than human (less than one). These atrocities ‘outraged the conscience of mankind’8 and states vowed that such events would never be allowed to occur again. By placing the protection of the individual at the heart of the international system, states would be limited in their ability to use force and so ‘freedom, peace and justice’ could be secured.9 To that end, various principles were enshrined in the Universal Declaration of Human Rights (UDHR) and were seen as being a necessary protection against the use and abuse of state power. These rights, which attach to every individual by virtue of his humanity, are (theoretically) inalienable10 (regardless of perceived wrongdoing and despite the belief held by some that if a person has done something wrong, then they should not be afforded the same rights as a person deemed to be innocent—their guilt makes them less worthy11) and have been incorporated in a number of international instruments and upheld in relevant cases.12 Thus, human rights law is based on the foundational principle that each human being is of equal intrinsic value, irrespective of their actions, and each holds inalienable rights. Human rights instruments explicitly state that every human counts as ‘one’ and that the rights belong to ‘all 8  Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) Preamble para 2. 9  UDHR Preamble. 10  UDHR Preamble para 1. 11  See, eg the emotive political arguments against lifting the blanket ban on prisoner voting after it was ruled unlawful by the European Court (Hirst v the United Kingdom (No 2) [2005] ECHR 681). In the House of Commons, Shadow Justice Secretary Sadiq Khan said that ‘The public will be rightly concerned at reports prisoners could get a vote. If true, thousands of those serving sentences for serious and violent crimes such as wounding, assault and domestic violence would be given a say in who runs the country.’ ‘Prisoners will not get the vote, says David Cameron’ The Guardian (24 October 2012) www.bbc.co.uk/news/ukpolitics-20053244; David Cameron stated in the House of Commons that ‘It makes me physically ill even to contemplate having to give the vote to anyone who is in prison.’ House of Commons Hansard Debates (3 November 2010) www.publications.parliament.uk/pa/ cm201011/cmhansrd/cm101103/debtext/101103-0001.htm. 12  Eg, the prohibition on torture: Ireland v UK [1978] ECHR 1; Tyrer v UK [1978] ECHR 2, notwithstanding the dissenting opinion of Sir Gerald Fitzmaurice who doubted the absolute nature of the torture prohibition; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) prohibits torture and ill-treatment, even in the face of a threat to the life of the nation; the Geneva Conventions make torture and ill-treatment universal crimes.

210  Lydia Davies-Bright ­ embers of the human family’.13 Although the inalienability of human m rights has been contested since the European Enlightenment,14 it is a concept essential to the universality, applicability and relevance of human rights. Without it the rights would become class rights and would be held only by those meeting the qualifying criteria. The rights would become a thing to be gifted to the citizenry by a benevolent government or ruler, and so could also be taken away. The rights would then lose their essential function and purpose of protecting humans from (abuses of) state power. B.  International Human Rights Law As human rights violations injure society as a whole, as well as the individual victim,15 International Human Rights Law (IHRL) developed in order to provide ‘a common standard of achievement for all peoples and all nations’16 and to impose obligations17 upon states towards individuals within their jurisdiction. Although the instruments confirm that human rights are inalienable, from its conception IHRL arguably moved away from the philosophical roots of the human rights concept as many legal human rights instruments allow for the derogation of rights in times of p ­ ublic emergency.18 The instruments themselves contain a ­contradiction—the rights belong to all, by virtue of being human, in order

13 

UDHR Preamble. eg Bentham describing the concept of human rights as ‘nonsense on stilts’ JA ­Bentham, ‘Critical Examination of the Declaration of Rights’ in J Bowring (ed), The Works of Jeremy Bentham Vol 2 (New York, Russell and Russell, 1962); M Cranston, ‘Are There Any Human Rights?’ (1983) 112(4) Daedalus 1; Cf American Declaration of Independence (4 July 1776) holding ‘that all men are created equal’ and ‘are endowed … with certain unalienable Rights … among these are Life, Liberty and the pursuit of Happiness’. www.archives.gov/ exhibits/charters/declaration_transcript.html. 15  D Shelton, Remedies in International Human Rights Law (Oxford, Oxford University Press, 2006) 48. 16  UDHR Preamble. 17  Voluntarily accepted by states signing the relevant IHRL treaties. 18 See, eg the 1950 Convention for the Protection of Human Rights and Fundamental ­Freedoms (European Convention on Human Rights, as amended) (ECHR) Article 15(1): ‘In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention …’ and ICCPR Article 4(1): ‘In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the current Covenant may take measures derogating from their obligations under the present Covenant …’ and the American Convention on Human Rights, ‘Pact of San Jose’ (signed 22 November 1969 in Costa Rica) (ACHR) Article 27(1): ‘In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.’ 14 See,

Terrorism: A Threat to Security? 211 to protect ­individuals from the state, but a state may assess and declare a situation as being one that requires rights to be suspended.19 Nevertheless, some controls are provided within the human rights instruments and20 there are rights from which derogation is not permitted, under any circumstances, as to violate them is considered malum in se as opposed to malum prohibitum. The right to life21 and the right to be free from torture are two such rights22 and the prohibition is jus cogens and obligatio erga omnes—thus they are absolutely non-derogable.23 The arbitrary deprivation of life24 can be seen as the ultimate and ­complete violation of all human rights, as without a human life there can be no human rights. Torture also attempts to extinguish all human rights as it irrevocably alters the humanity of the victim as they are not treated as a human in possession of human rights and the violence visited upon their person can never be undone. Therefore, to arbitrarily deprive a ­person of their life or to propose to torture an individual is to assert that their characteristics are not the same as the other members of the category, their ‘value’ is less and they do not possess human rights. This presents an intractable problem if human rights are considered universal and inviolable. It would necessitate (at the minimum level) a two-tier s­ ystem with a ‘higher division’ of humans possessing all human rights, and a ‘lower ­division’ whose members possess only some (or maybe none).

19 

Article 15(1) ECHR; Article 4(1) ICCPR; Article 27(1) ACHR. eg Article 15(2) ECHR: ‘No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision’; Article 4(2) ICCPR: ‘No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.’ The rights excluded are the right to life, prohibitions on torture and inhuman or degrading punishment, prohibitions on slavery and servitude and the principle of non-retroactivity. The ICCPR includes the right to freedom of thought, conscience and religion in the list of non-derogable rights. However, this is a right that can be restricted in certain circumstances and so does not require derogation. Article 18(3) ICCPR provides that ‘Freedom to manifest one’s religion or beliefs may be subject to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’ Again, the necessity for and extent of limitations on the right are essentially decided and assessed by the state. 21  WP Gormley, ‘The Right to Life and the Rule of Non-Derogability Peremptory Norms of Jus Cogens’ in BG Ramcharan (ed), The Right to Life in International Law (Leiden, Martinus Nijhoff, 1985). 22  E de Wet, ‘The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law’ (2004) 15 European Journal of International Law 97. 23  MC Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59 Law and Contemporary Problems 63. 24  ECHR Article 2(1) provides that ‘No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’ Article 2(2) provides three occasions when death resulting from the use of force no more than absolutely necessary will not be considered in contravention to the Convention. 20  See,

212  Lydia Davies-Bright Human rights would thus lose their inherent characteristic of universality and would no longer be effective in helping to secure international peace and security.25 Members of the ‘lower division’ would not enjoy the same protections and freedoms as those in the ‘higher division’, making them ­vulnerable to abuse and also more likely to agitate for change.26 C.  The Inviolability of Human Dignity Revisited Since the signing of the UDHR, previously inviolable principles have been sidestepped or eroded27 as their purpose has seemingly been forgotten. In both the national and international spheres, numerous counterterrorism­measures have been implemented in order to meet new security demands,28 some of which provide politicians and law enforcement agencies with extraordinary powers.29 National governments have shown themselves as being willing to subordinate human rights in their pursuit

25 UDHR Preamble, the source of subsequent IHRL, provides that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. 26  UDHR Preamble para 3. 27  C Gearty, Civil Liberties (Oxford, Oxford University Press, 2007) 49–58. 28  Fourteen universal legal instruments (with four amendments) have been enacted in an effort to prevent terrorist acts: Convention on Offences and Certain Other Acts Committed on Board Aircraft (signed in Tokyo on 14 September 1963); Convention for the Suppression of Unlawful Seizure of Aircraft (signed in The Hague on 16 December 1970) and its Protocol (signed in Beijing on 10 September 2010); Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (with Final Act of the International Conference on Air Law held under the auspices of the International Civil Aviation Organization at Montreal in September 1971) (concluded in Montreal on 23 September 1971) (Montreal Convention); Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (with Resolution 3166 (XXVIII) of the UNGA) (adopted by the UNGA on 14 December 1973); International Convention Against the Taking of Hostages (adopted by the UNGA on 17 December 1979); Convention on the Physical Protection of Nuclear Material (adopted in Vienna on 26 October 1979); Protocol to the Montreal Convention (concluded on 24 February 1988); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (concluded in Rome on 10 March 1988) and its first Protocol (concluded in Rome on 10 March 1988) and second Protocol (concluded in London on 14 October 2005); Convention on the Marking of Plastic Explosives for the Purposes of Detection (concluded in Montreal on 1 March 1991); International Convention for the Suppression of Terrorist Bombings (adopted by the UNGA in New York on 15 December 1997); International Convention for the Suppression of the Financing of Terrorism (adopted by the UNGA in New York on 9 December 1999); International Convention for the Suppression of Acts of Nuclear Terrorism (concluded in New York on 13 April 2005); Convention on the Suppression of Unlawful Acts Relating to International Civil ­Aviation (concluding at Beijing on 10 September 2010). UK legislation includes: Terrorism Act 2000; Anti-terrorism, Crime and Security Act 2001; Criminal Justice Act 2003; Civil Contingencies Act 2004; ­Prevention of Terrorism Act 2005; Terrorism Act 2006; Counter-Terrorism Act 2008. 29  See, eg the UK Civil Contingencies Act 2004 that provides for a Minister to be able to enact emergency regulations. These regulations have the potential power to temporarily override almost all other existing legislation.

Terrorism: A Threat to Security? 213 of national security30 and this action has created a tension between respect for human rights and satisfying perceived security requirements31 that needs to be confronted by the international community.32 This tension is arguably a result of the actions of states and individual governments, created in reality through the passing of new laws and measures that prioritise notions and perceptions of security above the protection of human rights. Although the existing legal and human rights framework provides for the prioritisation of security in times of public emergency, there is no requirement that human rights and respect for the integrity of the individual be subordinated to security concerns. By adopting a more utilitarian approach to security, states have moved away from a focus on the individual human person and so have felt more able to trade individual rights for greater collective security. However, pursuing a security strategy that places the universal respect for human rights at its centre would arguably be a more productive approach that would lead to an achievable level of peace and security,33 without the sacrifice of the very principles and values the security measures purport to protect. III.  THE STATE AND ITS NEED FOR SECURITY

A.  Concept of the State The concept of the state has been discussed and debated for centuries, but to no definitive end. However, one common theme is that the state arises as a natural or inevitable consequence of humankind’s social interaction. For Plato, the state was a naturally occurring phenomenon, establishing an ethical community founded on the maintenance of justice.34 Similarly, Aristotle held that ‘the state is both natural and prior to the individual’35 and ‘comes for the sake of life, and exists for the sake of the good life’.36 30 White House, ‘National Security Strategy of the United States of America’ (­Washington DC, White House, 2002) www.state.gov/documents/organization/63562.pdf in which it is stated that the defence of the nation ‘against its enemies is the first and fundamental commitment of the Federal Government’. Logically, this subordinates all other commitments, including human rights, to the needs and demands of national security. 31  ND White, ‘The United Nations and Counter-Terrorism’ in AM Salinas de Frías, KHL Samuel and ND White (eds), Counter-Terrorism: International Law and Practice (Oxford, Oxford University Press, 2012) 56. 32  A Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12 European Journal of International Law 993, 998. 33 WW Burke-White, ‘Human Rights and National Security: The Strategic Correlation’ (2004) 17 Harvard Human Rights Law Journal 249. 34 Plato, The Republic (translated by C Rowe) (London, Penguin Classics, 2012). 35 Aristotle, Politics: Books I and II (translated by TJ Saunders) (Oxford, Oxford University Press, 1995) I.21253a18–29 [3]. 36  Aristotle (n 35) I.21252b27–30 [3].

214  Lydia Davies-Bright Thus, the state has its origins in man who, being inherently social and political, is compelled to form families, which join to become villages, which then merge to become self-sufficient communities (states). In contrast, Locke and Rousseau advanced the ‘social contract’ theory,37 which places original man in a harmonious state of nature where every person had what they required in order to live. The social contract was necessitated by the need for an external authority to maintain peace and order and to preserve every individual’s rights due to an increase in property ownership and consequent rise in avarice. A group was chosen to govern and the people reserved the right to remove these governors from power if they broke the original contract. Hobbes’ concept of the ‘social contract’ was based on the belief that self-preservation and self-interest are inherent qualities of man and so it was natural for man to surrender his rights and freedom to a sovereign authority in order to gain protection and release from the terrible and dangerous state of nature.38 The idea that the state has its roots in nature and is a naturally occurring phenomenon is appealing and emotive. The idea that ‘the state is not an artificial restriction of liberty but [rather] a means of gaining it’ and is the natural goal towards which human life moves39 appeals to the imagination. The idea that the construction of the state is part of being human and is the social framework in which humanity can be liberated is a powerful one. Although there are significant differences in the philosophical perspectives outlined above, all have the state as an important and foundational aspect of human existence (notwithstanding Rousseau’s view that man is inherently asocial). Justifications for the socially constructed reality in which humankind now exists as being ‘natural’ or a logical consequence to (changes in) the natural state, allows for arguments that certain constructions of states are ‘more natural’ than others. Concepts of the final end state, to which humankind (apparently) journeys, is to be found in very particular political and social constructs, born from very definite philosophical roots.40 Nevertheless, despite the appeal of this concept of the state and the various concomitant philosophical arguments, all that can be said with certainty is that ‘the state’ is a sociological structure, meaning simply that it is a human construct (whether or not its origins are

37 J Locke, Two Treatises of Government and A Letter Concerning Toleration (edited by I ­Shapiro) (New Haven, Yale University Press, 2003); JJ Rousseau, The Social Contract (translated by M Cranston) (London, Penguin Classics, 2003). 38  T Hobbes, Leviathan (edited by CB MacPherson) (London, Penguin Classics, 1981). 39  WD Ross, Aristotle (London, Methuen, 1937) 239. 40  Eg, F Fukuyama, The End of History and the Last Man (New York, Free Press, 1992) arguing that liberal democracy was the final state for man and the apex of human development.

Terrorism: A Threat to Security? 215 a naturally occurring phenomenon) and is the collective external expression of a particular human group, which allows and facilitates the expression of that group41 internally and on the international stage. The traditional criteria for statehood are provided in Article 1 of the Convention on the Rights and Duties of States.42 The Montevideo Convention is an example of the state being seen as a sui generis legal identity, which exists and operates purely under its own power and authority, as demonstrated by the provision in Article 3 that ‘The political existence of the state is independent of recognition by the other states.’ This concurs with the philosophical perspectives that the state is a construct resulting from human interaction. A state can survive changes in its borders, occupation and even partition,43 but without a human population,44 there can be no state. This makes the maintenance of a permanent human population essential to state survival. Thus, a state has both a concrete45 and abstract46 form. The concrete state does not depend upon the presence of a coherent and effective government, which is able to exercise control over the defined territory, for its existence. The human population continues to exist, as does the physical landmass, regardless of any over-arching power structure. However, the power structure is what ultimately gives the state its personality and its ability to interact with other states—it is the abstract form of the state that requires protection and support in order to continue to exist.

41  Whether or not the state facilitates the expression of every member of the group is a discussion that lies outside the purview of this chapter. The question of (neo-liberal) democracy as a human right and as a suitable method of ensuring the social and political expression of every member of the populous, was discussed in L Davies-Bright, ‘Is There No Alternative to Democracy for Protecting Human Rights? Lessons from the Arab Spring’ (Presented at the 2013 HRLC Annual Student Conference, University of Nottingham) and L Davies-Bright, ‘Cake or Death? Democracy or …?’ (2012 PhD Seminar Series, University of Nottingham)— both available from the author on request. 42  (Montevideo Convention) ‘The state as a person of international law should possess the following qualifications: a permanent population; b) a defined territory; c) a government; and d) capacity to enter into relations with other states.’ 43  Poland ceased to exist as a separate state after partition in the eighteenth century and only came back into being after World War I. 44  The population does not have to be self-perpetuating, as demonstrated by Vatican City state. 45  The physical territory of the state as defined by its borders (whether geographical, as in a coastline, or constructed). Borders are subject to change and dispute, but that does not necessarily mean the end of that state (eg Poland, Egypt and Israel). 46  The control exercised by the state over its concrete form (eg by patrolling and protecting its borders), combined with the ability to establish institutions (such as an executive, a military and a judiciary) in order to coerce the resident human population.

216  Lydia Davies-Bright B.  The Nation State The dependence of the state upon groups of people for its existence gave rise to the ‘imagined political community’ of the nation47 and the idea that the cultural and ethnic identity of the people (the nation) coincides with the geographical and political entity (the state). Although there are often many commonalities, such as language, other features, such as cultural, religious and political practices, often differ within family units, between neighbours and amongst regions. The majority of the members of the community have no interaction with each other and will never meet, but nevertheless ‘consider themselves to form a nation’48 and are bound together in a deep, ‘horizontal comradeship’.49 The nation-state concept ignores the inherent differences that exist within all human groups and attempts to connect every individual by articulating an idea of ‘national identity’. This identity often ignores individual, sub-regional and regional differences and also ignores the commonalities that transcend state borders, engendering separation and a ‘them’ and ‘us’ mentality that is essential to the construction of the state. It is impossible to construct an internal ‘self’ without an external ‘other’.50 Nationalism ‘invents nations where they do not exist’51 and separates people along arbitrary lines. This perception that a group of people living within a defined physical territory is a homogenous unit (conceived of as a positive characteristic that should be maintained) has, arguably, led to a significant proportion of the wars and conflicts occurring since the decline of the Age of Empire during the end of the eighteenth and beginning of the nineteenth centuries.52 i.  Defending the Nation The fundamental concept of separating human groups along cultural and geopolitical lines justifies the defence of the nation/state group from the external ‘others’. Differences present a threat to group cohesion and expose the lack of uniformity, thereby creating a potential internal threat to the structure of the group. Thus, a certain degree of internal suppression and oppression of ideas and practices that run contrary to the group

47 

B Anderson, Imagined Communities (London, Verso, 2006) 6. H Seton-Weston, Nations and States: An Enquiry into the Origins of Nations and the Politics of Nationalism (Boulder, Westview Press, 1977) 5. 49  Anderson (n 47) 7. 50  D Campbell, Writing Security: US Foreign Policy and the Politics of Identity (Manchester, Manchester University Press, 1998). 51  E Gellner, Thought and Change (London, Verso, 1964) 169. 52  A Wimmer and B Min, ‘From Empire to Nation-State: Explaining Wars in the Modern World, 1816–2001’ (2006) 71(6) American Sociological Review 867. 48 

Terrorism: A Threat to Security? 217 i­dentity is also required.53 Speech acts maintain both the group identity and the differences between those who belong within and without the group. L ­ anguage is used to naturalise ‘a particular political and social order’ and to ‘construct and maintain a hegemonic regime of truth’.54 This is done in a variety of ways, in numerous forums55 and is designed to protect and preserve the group identity as manifested in the ­nation-state.56 As the state is now seen as being deeply connected to the natural state of humankind (perhaps even being the natural state) and so much of p ­ eoples’ individual identity and reason for being has become wrapped up in the concept of the nation to which they belong, it is of vital importance that the state is preserved. Thus, it is logical to suggest that the state operates with the preservation of its existence at the very core of all its actions (which is to be distinguished from the obligation on all states to protect the citizenry).57 The perceived need for a state to protect itself from threats has led to the development of the concept of state security. A state must protect itself (and the people on whom its existence depends) from threats and so is permitted, in international law, to defend itself against an attack.58 According to ‘official discourse’, the world is now

53  As demonstrated by UK Prime Minister David Cameron in his ‘Speech on Radicalisation and Islamic Extremism’ at the Munich Security Conference (5 February 2011) in which he argued that Muslim community groups must adhere to and uphold certain values in order to receive public funds. He also stated that certain values ‘define us as a society: to belong here is to believe in these things.’ webarchive.nationalarchives.gov.uk/20130109092234/http:// number10.gov.uk/news/pms-speech-at-munich-security-conference/. 54  R Jackson, ‘Constructing Enemies: “Islamic Terrorism” in Political and Academic Discourse’ (2007) 42(3) Government and Opposition 394, 397. 55  See eg, R Wodak, R de Cilla, M Reisigl and K Liebhart, The Discursive Construction of National Identity, 2nd edn (Edinburgh, Edinburgh University Press, 1999) for a discussion on the complex construction of national identity. 56  See eg, A Fisher, ‘Selling the Self: The Discursive Construction of Identities in the First UK Televised Prime Ministerial Debates’ (PhD Thesis, University of Nottingham, 2013) for a linguistic analysis of political discourse identifying the group (‘us’) and those who are outside it (‘other’). 57  R Nozick, Anarchy, State and Utopia (Oxford, Blackwell, 1974). 58 As demonstrated in various international materials: Article 1 ECHR imposes a duty on the contracting parties to secure the rights and freedoms contained within Section I for all in their jurisdiction; World Summit Outcome UNGA Res 60/1 (24 October 2005) UN Doc A/RES/60/1; UNSC Res 1674 (28 April 2006) UN Doc S/RES 1674; UNSC Res 1894 (11 N ­ ovember 2009) UN Doc S/RES/1894; UNSC Res 1970 (26 February 2011) UN Doc S/ RES/1970; UNSC Res 1973 (17 March 2011) UN Doc S/RES 1973; UNSC Res 2016 (27 ­October 2011) UN Doc S/RES/2016 in relation to Libya; UNSC Res 1975 (30 March 2011) UN Doc S/ RES/1975 in relation to Côte d’Ivoire; UNSC Res 2014 (21 October 2011) UN Doc S/RES/2014; UNSC Res 2085 (20 December 2012) UN Doc S/RES/2085; UNSC Res 2100 (25 April 2013) UN Doc S/RES/2100 in relation to Mali; UNSC Res 1996 (8 July 2011) UN Doc S/RES/1996; UNSC Res 2126 (25 November 2013) UN Doc S/RES/2126 in relation to Sudan; UNSC Res 2121 (10 October 2013) UN Doc S/RES/2121; UN Res 2127 (5 December 2013) UN Doc S/RES/2127; UNSC Res 2134 (28 January 2014) UN Doc S/RES/2134 in relation to the Central African Republic.

218  Lydia Davies-Bright a very different place and is facing a unique and unprecedented threat. The luxuries of the rule of law and due process can no longer be afforded.59 As asserted by former UK Prime Minister Tony Blair, a primary and central function of government is to ensure the safety of its citizenry above all else—even at the sacrifice of civil liberties and individual ­freedoms.60 In creating a shadowy, external61 enemy that is capable of infiltrating our communities and schools unseen and undetected,62 the political establishment is able to justify the implementation of exceptional measures to protect the public from the enemy that hides within. This plays on latent fears regarding non-integrated groups63 and feeds them back into society to create an idea of solidarity and ‘togetherness’ that appears to strengthen the political unit64 and sense of national identity and gives the impression that the state is fulfilling its function of protector. It also allows mainstream political discourse to ignore and dismiss any assertions that terrorists may have actual grievances and a basis for their anger and frustration.65 C.  The Meaning of Security The modern international community, which, for the purposes of international law, consists mainly of states and international organisations formed by states, was developed and constructed with the primary aim of securing and maintaining international peace and security.66 Despite being present in human rights instruments, which provide for the restriction of certain rights in the interests of national security,67 security is an

59 

Pickering, McCulloch and Wright-Neville (n 6) 7. Heard, ‘Using War on Terror to Flout Own Laws’ Gulf News (4 July 2006) http:// gulfnews.com/opinions/columnists/using-war-on-terror-to-flout-own-laws-1.243286. 61  In the sense that it does not adhere to the values and commitments by which the society in question is defined by its leaders, see UK Prime Minister David Cameron’s speech in Munich (n 53); Pickering, McCulloch and Wright-Neville (n 6) 5 on how non-integrated Muslims (those on the outside) pose a threat as they are innately hostile to ‘Western values’. 62  UK media coverage on the so-called ‘Trojan Horse’ plot to infiltrate UK schools with Islamic extremism, eg C Moore, ‘A Weak Establishment is Letting Islamists Threaten ­British Freedoms’ The Telegraph (18 April 2014) www.telegraph.co.uk/news/uknews/terrorismin-the-uk/10775118/A-weak-establishment-is-letting-Islamists-threaten-British-freedoms. html; Telegraph View, ‘We Must Confront the Challenge of Islamism’ The Telegraph (20 April 2014) www.telegraph.co.uk/news/religion/10775651/We-must-confront-the-challenge-ofIslamism.html. 63  Pickering, McCulloch and Wright-Neville (n 6) 5. 64  C Aradau and R van Munster, ‘Exceptionalism and the “War on Terror”: Criminology Meets International Relations’ (2009) 49 British Journal of Criminology 686, 690. 65  Pickering, McCulloch and Wright-Neville (n 6) 4. 66  UNC Preamble; B Simma and AL Paulus, ‘The “International Community”: Facing the Challenge of Globalisation’ (1998) 9 European Journal of International Law 266. 67  Eg Article 19(3)(b) ICCPR the exercise of the right to freedom of expression may be restricted ‘for the protection of national security or of public order’; Article 8(2) ECHR and 60  LS

Terrorism: A Threat to Security? 219 undefined term. The UN Charter (UNC), which preceded the international human rights instruments, was not substantively strong in terms of international law and rather placed ‘security’ as a discretionary concept at centre stage. In international law, security is generally perceived in terms of national and state security and Article 24 UNC is generally interpreted accordingly. Security can be generally defined as the condition of being protected from harm, the over-arching objective is to protect state sovereignty from a perceived existential threat. However, how those who warrant protection are distinguished and how the harm is identified is by political decision, rather than by legal definition. The term can be utilised to justify action and inaction on the basis that it is in the interests of the state in question to act or to refrain from action.68 Politicians often cite state or national security as a motivation and legitimisation of a particular action, which is usually accepted by the general population.69 The public narrative is now one in which violence by the state towards enemies is seen as being reasonable, acceptable and appropriate.70 However, it is important to ask exactly who/what is being protected and against whom/ what. The discourse around terrorism and counter-terrorism is a real exercise of state power and serves a clear political purpose.71 When a state purports to act in the name of security, yet undermines the principles and structures that offer protection to its population, the question arises as to exactly whose security is being protected. As the securing and protection of individual rights supports the maintenance of international peace and security,72 it logically follows that undermining, threatening and violating these rights will have a detrimental effect on the primary objective of the international community—maintaining and upholding international peace and security.

Article 8(2) Human Rights Act 1998 (UK): ‘There shall be no interference by a public authority with the exercise of [the right to respect for private and family life] except such as is in accordance with the law and is necessary in a democratic society in the interest of national security …’ 68 Eg UK Prime Minister David Cameron justified the actions of UK Government ­ ommunications Headquarters (GCHQ) on the basis of security and also the inaction of both C the UK Government and Parliament in response to the Snowden revelations, ‘The World at One’ BBC Radio Four (25 October 2013). 69  Eg the justification of GCHQ and National Security Agency (NSA) actions by politicians and security services and the condemning of whistle-blower Edward Snowden and the media outlets that facilitated his actions, claiming that they have endangered UK national security, A Sparrow, ‘Guardian Faces Fresh Criticism over Edward Snowden Revelations’ The Guardian (10 November 2013) www.theguardian.com/media/2013/nov/10/ guardian-nsa-revelations-edward-snowden. 70 R Jackson, Writing the War on Terrorism: Language, Politics and Counter-Terrorism (­Manchester University Press, 2005) 1. 71  Jackson (n 70) 2. 72  UDHR Preamble.

220  Lydia Davies-Bright D.  The Security Narrative Post-Cold War there has been a need to create a new meta-security ­narrative in order to maintain and extend existing (inter)national institutions and behaviours. As was the case during the Cold War, the global ‘War on Terror’, declared by the US and UK administrations in response to the events of 9/11, provides an over-arching conflict that supersedes other ‘securitisations’ between regions and states and frames the international security discourse.73 The developments and escalations in the political and legal approaches to terrorism can be viewed in this light. Former US President George W Bush utilised the emotive rhetoric of war74 and placed terrorism at the heart of Western national security imperatives. It became the lens through which subsequent state and non-state activity was viewed and enabled the move towards pre-emptive action in order to counter a particularly dangerous threat. Terrorism in the post-9/11 era is portrayed as presenting a threat peculiar to its epoch, with ‘challenges … qualitatively different from the past’.75 The US and UK have successfully ‘securitised’ the threat of (Islamic) terrorism through the identification of an external enemy so powerful and pervasive that almost any action that is perceived as necessary in order to maintain security can be legitimised. Although disquiet may be voiced over the more extreme activities, such as torture and targeted killings,76 these practices do not cease. Additionally, few challenge the qualitative or quantitative nature of the threat and the critical legal analysis of the actions of the international community has significantly reduced in potency in the post-9/11 era. By polarising the debate, equating dissent with support for terrorism77 and asserting the sovereign right of states to self-defence, the US and its allies were able to quell opposition and control the discussion, despite the lack of a Security Council determination that the events of 9/11 constituted an armed attack that justified a military response.78 73  B Buzan, O Wæver and J De Wilde, Security: A New Framework for Analysis (London, Lynne Rienner, 1998); B Buzan, ‘Will the “Global War on Terrorism” be the New Cold War?’ (2006) 82(6) International Affairs 1101. 74 Former US President GW Bush declared to the USA that ‘The search is under way for those who are behind these evil acts’ and ‘we stand together to win the war against ­terrorism’ Address to the Nation (12 September 2001) http://news.bbc.co.uk/1/hi/world/ americas/1539328.stm; Former US President GW Bush (n 1). 75 C Pantazis and S Pemberton, ‘From the “Old” to the “New” Suspect Community: Examining the Impacts of Recent UK Counter-terrorism Legislation’ (2009) 49 British Journal of Criminology 646, 650. 76  S Jenkins, ‘The Real Threat to Our Way of Life? Not Terrorists or Faraway Dictators, but our own Politicians and Securocrats’ The Guardian (27 August 2013); International Commission of Jurists (n 3). 77  Former US President GW Bush (n 1) ‘Every nation in every region now has a decision to make: Either you are with us or you are with the terrorists.’ 78 EPJ Myjer and ND White, ‘The Twin Towers Attack: An Unlimited Right to Selfdefence?’ (2002) 7 Journal of Conflict and Security Law 5, 7.

Terrorism: A Threat to Security? 221 The ‘securitisation’ of terrorism has infiltrated all levels and aspects of society and is now perceived as a self-evident truth that cannot be sensibly contradicted, in much the same way as the threat of Soviet power and nuclear weapons was seen as a reality. The Soviets presented a clear existential threat through the possible eradication by nuclear ­weapons. Although terrorists do not have such overtly destructive capabilities, the dangers posed by terrorists are portrayed as presenting a similar level of existential threat as the very fabric of civilisation, the ‘freedoms’ upon which society is built79 are challenged by people blowing themselves up. Despite the West seriously overestimating Soviet capability,80 it was known at the time that the USSR had nuclear weapons and functioning and equipped armed forces of significant size. In contrast, al-Qaeda is a disparate network of an indeterminate size and with limited resources and capability.81 Nevertheless, in response to the apparent threat post9/11, states introduced new domestic measures that often went beyond previous legislative limits.82 The use of the security narrative has since gained its own momentum and it has become seemingly impossible to stop as each contribution builds on the last. Human rights and democracy are presented as being under threat from terrorism and so are utilised in the support and promotion of the ‘securitisation’ of terrorism. Acts against terrorism are framed as being necessary to protect human rights and preserve democracy and to defend and protect ‘our way of life’.83 The security strategies are designed to prevent deviation from the politico-social norms through which our reality is constructed. The lack of a universally accepted definition of terrorism84 allows for a flexibility in labelling events and acts by disenfranchised groups and assists in the ‘securitisation’85 of the (counter-)terrorism process. ­Assigning the terrorism moniker de-legitimises an act, a group and any connected ideology—be it political, religious or a combination of both. It becomes seen as being ‘wrong’86 and so a dangerous and pervasive

79  Eg UN Global Counter-Terrorism Strategy UNGA Res 60/288 (20 September 2006) UN Doc A/RES/60/288: ‘terrorism … [is] aimed at the destruction of human rights, fundamental freedoms and democracy …’ 80 H Spruyt, Ending Empire: Contested Sovereignty and Territorial Partition (New York, ­Cornell University Press, 2005) 61. 81  J Bajoria and G Bruno, ‘al-Qaeda’ Council on Foreign Relations (6 June 2012) www.cfr. org/terrorist-organizations-and-networks/al-qaeda-k-al-qaida-al-qaida/p9126. 82  For an examination of post-9/11 counter-terrorism measures, see International Commission of Jurists (n 3). 83  ‘A Strong Britain in an Age of Uncertainty: The National Security Strategy’ (London, Cabinet Office, October 2010) 23. 84  International Commission of Jurists (n 3) 7. 85  Buzan, Wæver and De Wilde (n 73). 86  S Marks and A Clapham, International Human Rights Lexicon (Oxford, Oxford University Press, 2005) 346.

222  Lydia Davies-Bright threat, requiring measures that stretch or ignore previous standards.87 Post-9/11 terrorism is described as being rooted in religious fundamentalism, in a ‘perversion of a proud religion’,88 which serves to further delegitimise89 the actors through the depoliticisation, decontextualisation and dehistoricisation of their motivations.90 The perpetrators are portrayed as being irrational and so, logically, lacking in reason. Such claims instil and encourage fear in the recipient public, which also feed into pre-existing social and political concerns and ‘institutionalize fear of the enemy as the constitutive principle for society’.91 The successful92 securitisation of terrorism as an existential threat, as something coming from a nebulous and threatening ‘other’ that endangers the existence of Western civilisation in a manner akin to the USSR,93 has enabled governments to move beyond the politicisation of the concept, through the legalisation of responses, and to persuade their respective citizenries to accept previously unconscionable measures and derogations from human rights instruments in order to maintain security.94 This circumvention and violation of the very values anti-terrorism measures are purported to defend arguably fuels terrorism as governments are perceived as being hypocritical95 and self-serving. Terrorist events both

87  Views of the terrorist threat being exceptional/especially dangerous are used to justify normally prohibited responses, International Commission of Jurists (n 3) 18–27. 88  White House, ‘National Security Strategy of the United States of America’ (Washington DC, White House, 2006) 1 http://www.comw.org/qdr/fulltext/nss2006.pdf. 89  Representing the reason for the attacks as being rooted in the basic nature and identity of the terrorists and not in any socio-political basis, is an essential rhetorical move and removes the need for discussion, diplomacy and negotiation, Jackson (n 70). 90  Jackson (n 54) 421. 91  Aradau and van Munster (n 64) 689. 92  As evidenced by the continuing use of the term ‘terrorism’, and linking it with the terms ‘threat’ and ‘security’, by politicians and international organisations as a precursor to new action or measures. It appears to be self-evident and unquestioned that terrorism presents a threat to international peace and security and so justifies whatever measures are deemed necessary, Global Counter-Terrorism Strategy UNGA Res 60/288 (20 September 2006) UN Doc A/RES/60/288; Jackson (n 70) 3; S Wood, ‘Terrorism Biggest Threat to National Security, Officials Say’ US Department of Defense News (28 February 2006) www.defense.gov/news/ newsarticle.aspx?id=14735; P Parham (UK Ambassador), ‘Terrorism Continues to Pose a Grave Threat to International Peace and Security’ Statement to UNSC Meeting on Briefings by Chairmen of Subsidiary Bodies of the Security Council (10 May 2013) www.gov.uk/government/ speeches/terrorism-continues-to-pose-a-grave-threat-to-international-peace-and-security. 93  Buzan (n 73). 94  See, eg the infamous Belmarsh Case (A and others v Secretary of State for the Home Department [2004] UKHL 56) where nine non-British nationals were held under the Anti-terrorism Crime and Security Act 2001, Part 4 of which allowed for their indefinite detention, without trial, on the basis that they posed a potential threat to UK national security. 95  MC Bassiouni, ‘Legal Control of International Terrorism: A Policy-Orientated Assessment’ (2002) 43 Harvard International Law Journal 83, 103; individuals are only vulnerable to the bifurcation of the world into good/evil, light/dark once they are convinced that the state is no longer legitimate, E Sprinzak, ‘The Process of Delegitimization: Towards a Linkage Theory of Political Terrorism’ (1991) 3(1) Terrorism and Political Violence 50, 56–57.

Terrorism: A Threat to Security? 223 prior to and post 9/11 demonstrate that terrorism is a phenomenon likely to come from within the society that experiences the attack.96 Thus, the governments and security services are able to utilise events to suit the securitisation narrative at the expense of the articulation of a coherent and collective legal response that is workable in all jurisdictions, across all national systems and that takes account of the different perspectives on the phenomenon of terrorism. The securitisation of terrorism enables the militarisation of the response to terrorism and is at its foundation. If terrorism is not seen through a security, and so military, lens, then the military response cannot be justified. Similarly, the securitisation of terrorism allows politicians and security agencies to paint the criminal justice paradigm as being inadequate to deal with this peculiar threat by itself and so warrants a relaxation of safeguards designed to protect the suspect in a criminal process.97 Law enforcement techniques are used (although modified by security concerns, such as with the use of secret trials), but securitisation creates the expectation that the use of the military, at the discretion of the executive, is both necessary and legitimate. IV.  THE ORIGINS IN ETHICS OF HUMAN RIGHTS

A.  The Repositioning of Human Rights on the Moral Field Post-9/11, governments and commentators began to argue for a re-visiting­of some of the most fundamental principles upon which the international community stands in response to the perceived change in reality and the development of a peculiar threat.98 With the development of international criminal law and the individualisation of the responses to terrorism, through the use of measures such as terrorist proscription lists, international law has been refocused on the individual as a wrongdoer, as well as a holder of rights. The representation of the terrorists as essentially

96  See, eg the Oklahoma bombing in the US in 1995 and the IRA bombings and attempted bombings in the UK and Northern Ireland 1969–2014 where the perpetrators were citizens of the target states. 97  Eg, in the UK, persons believed by the Home Secretary to have engaged in terrorismrelated activity can be made subject to Terrorism Prevention and Investigation Measures (TPIMs). These are imposed upon the individual without a judicial process, without conviction and without the person being able to answer (or even know) the allegations made against them. Terrorism and Preventative Measures Act 2011. 98 C Gearty, ‘The Superpatriotic Fervour of the Moment’ (2008) 28 Oxford Journal of Legal Studies 183; P Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American ­Values (New York, Palgrave, 2008) detailing how the fundamental concept of the nation as an ‘intrinsically virtuous’ endeavour and the ‘unprecedented challenges’ facing the US led to the displacement of foundational values in favour of security; Greenberg and Dratel (n 5).

224  Lydia Davies-Bright evil99 enables the individuals to be conceptualised as less than human and so not deserving of the same legal safeguards as law abiding citizens.100 Thus, the current practice of certain states in dealing with suspected ­terrorists can be viewed as part of the ongoing debate as to whether consequentialism or deontology is the ‘supreme principle of morality’101 that should guide action. B. Consequentialism Consequentialism posits that only the consequences of an act have intrinsic value. Thus, a moral agent is obliged to choose that act which will result in the best outcome. Utilitarianism,102 as propounded by Jeremy Bentham103 and John Stuart Mill,104 is the most significant consequentialist position as its impact transcends its historical epoch and is evident in modern p ­ ublic policy105 and philosophical thought. The unit of measurement is happiness, only this has intrinsic value. Other acts or things may only have instrumental value insofar as they assist in maximising happiness. For a utilitarian, the best consequences are those maximising happiness (­utility) over pain (disutility). Thus, when faced with a choice of two courses of action, the utilitarian will consider the possible consequences and will choose the act that will either maximise utility or minimise disutility. In its absolute form, utilitarianism holds that the happiness of each and every person is of equal value or worth, which coincides with the philosophical foundation of the modern human rights movement. However, each person also has a ‘social utility’ in terms of their contribution to their family, community and society as a whole. The death of a person with many friends and a large family will cause a significant degree of unhappiness for many people, whereas the death of a hermit or recluse will not be so keenly felt. Thus, the utilitarian measure of a person’s life becomes a form of costbenefit analysis in which the matrix of the individual’s personal relationships and social and economic aspects of being are assigned utility values, which are then aggregated. A person occupying a powerful position, such

99  White House, ‘National Strategy for Combating Terrorism’ (Washington DC, White House, 2003). 100  Sands (n 98). 101  I Kant, The Moral Law; Groundwork for the Metaphysics of Morals (translated by HJ Paton) (London, Routledge, 1991). 102  For ease of discussion, the form of utilitarianism used will be act utilitarianism. 103  Bowring (n 14). 104  JS Mill, Utilitarianism, Liberty, Representative Government (London, JM Dent and Sons Ltd, 1962). 105  As shall be seen below, it is arguably used in assessing the virtue of acts in the context of counter-terrorism.

Terrorism: A Threat to Security? 225 as the US President, could effectively become immune or untouchable as the negative political and economic effects of their death would outweigh any wider positive effects in most imaginable circumstances. C. Deontology For the deontologist the consequences of an act are also relevant, but other things have intrinsic value. In direct contrast to utilitarianism, which views humans as vessels for experiencing happiness,106 in deontology human beings are intrinsically valuable and are to be viewed as ends in themselves, as opposed to mere means to an end.107 In pure deontological terms, acts should be performed from a sense of duty. If there is no moral duty informing the act, then the act is not the correct moral choice. Deontology may be viewed as the secularisation of Judeo-Christian theology for the post-enlightenment era. It is on this ideology that the modern conception of ‘the West’ as an identifiable civilisation and socio-political construct stands. However, the security imperative necessitates the taking of an approach that places less emphasis on the individual. This is perhaps the centre of the conflict between the human rights concept of each person being vested with inviolable dignity and the reality of security and politics. Human rights law is the result of the compromise between the two sides. D.  Consequentialism v Deontology Under utilitarianism, the objective is to maximise utility and so the taking of one (or more) life or the torture of an individual can be morally justified if overall utility is increased. The utility gained by the saving of many (innocent) peoples’ lives overrides the value of the one (guilty) individual. In consistent deontology, human rights are activated by the presence of ‘one’ and thus the numbers count contrariwise. The presence of one human being possessing inviolable human rights bars certain actions. Nonetheless, in pursuing security from terrorism states have violated both the right to life and the right to freedom from torture in order to protect the state and its citizenry from the terrorist threat. This raises the question of whether human rights can ever be deactivated, such as in the case of (suspected) terrorists or other criminals and, if they can, what the consequence would be for individual human rights and international peace and security. 106  107 

MS Moore, ‘Torture and the Balance of Evils’ (1989) 23 Israel Law Review 280. Kant (n 101).

226  Lydia Davies-Bright The debate between consequentialism and deontology is important to an assessment of the effect of the widening of the perceived threat to security posed by terrorism as it informs the perception of the value of an individual human being, which in turn informs the responses to the existential threat. The arguments are muddied as the justifications for responses to terrorism are usually a hybrid of both. However, taken on the basis of either one, the argument does not make sense on its own terms as ­security is still undermined by the actions purporting to increase it due to the threat to and infringement of individual human rights. This is explored further in the following section, which will show that the individual is less safe—human rights are undermined and maximum happiness cannot be achieved. V.  THE CONSEQUENTIALIST WAR AGAINST TERRORISM

The idea that there was a natural state, as outlined above, feeds the concept of a natural law—a pre-existing order, a ‘rightness’ that transcends all epochs, is universally applicable and intellectually comprehensible. It is not, as the Greek Sophists maintained, merely the manifestation of the opinions and desires of the politically dominant class. In natural law, justice, like the state, is natural, is knowable and is an inherent quality of being human. A.  A Just War Against Terrorism Just war theory was developed in order to address the intractable problem of how to take human life in a morally permissible manner. Rooted in Greek, Roman and Catholic philosophy, the theory enables the justification of armed conflict against another.108 The purpose of a just war was to reclaim the res that had been unjustly taken, such as territory, and so the war was over at the point where this aim was achieved.109 The original seventeenth century tripartite conceptions of just war theory involved Vitoria’s jus vitoriae, which directed the victor’s actions and prevented an assumption of unlimited rights over the defeated territory and/or ­people.110 However, the third stage was consumed by the bipartite conception that gained dominance during the nineteenth century. Victorian

108 

M Walzer, Arguing About War (New Haven/London, Yale University Press, 2004) 3. Neff, ‘Conflict Termination and Peace-Making in the Law of Nations: A Historical Perspective’ in C Stahn and JK Kleffner, The Jus Post Bellum: Towards a Law of Transition from Conflict to Peace (The Hague, TMC Asser Press, 2008) 79. 110  Neff (n 109) 79. 109  SC

Terrorism: A Threat to Security? 227 legal positivism preferred to focus on jus ad bellum, jus in bello and then a form of victor’s justice.111 The view that war can be just and necessary, even though the taking of human life is basically wrong, is still prevalent today. Through political rhetoric, the actions of states against (alleged) terrorist actors is placed within a just war framework. The idea that ‘we’ (the good) are protecting ‘our way of life’ and ‘our values’ from ­terrorists (the bad) is used as a self-evident justification, which cannot be ­questioned.112 The modern ‘just war’ against terrorism has been combined with the utilitarian approaches of the security and military paradigms as the ends (preserving the status quo) which justify the means (such as ­killing or torturing suspected terrorists). However, this is arguably a perversion of the utilitarian concept as it is clear from state actions that it is the happiness of a small section of the world’s population that counts. In its pure form, utilitarianism counts human happiness, irrespective of the socio-political status of the human in question. In the attack on the Twin Towers, a relatively small number of people died in comparison to the numbers who have died in military actions since. Additionally, n ­ umerous people have been detained, interred and tortured without access to, or respect for, due process and legal safeguards. Under a utilitarian approach, the individual is sacrificed for the greater good. In the post-9/11 epoch, the greater good appears to mean the good of those who are considered to be with the West, rather than on the side of the terrorists (or somehow associated, by design or by accident, with the terrorists—as in the case of Jean Charles de Menezes). This appears to add weight to arguments that in reality law has no place in war, whether real or rhetorical,113 and that the idea of a just war is fictitious or simply fanciful thinking114 aimed at soothing the restless conscience. B.  The Montreal Convention and Lockerbie Case The origins of the modern ‘war on terror’ and its concomitant threat to the individual can be traced back to the Lockerbie bombing case. In response to the bombings and Libya’s refusal to extradite the two suspects, the UK and US chose to bypass the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,115 which provided an i­ nternational 111 

Neff (n 109) 81–83. eg UN Global Counter-Terrorism Strategy (n 79); US National Security Strategy (n 30 and 88); UK Security Strategy (n 83). 113  Bush declared ‘war on terror’ in response to the 9/11 attacks, but this war was never officially declared, former US President GW Bush (n 1). 114  Walzer (n 108) 10–13. 115  Signed at Montreal, Canada on 23 September 1971 (Montreal Convention). 112  See,

228  Lydia Davies-Bright mechanism for states to deal with the criminal use of explosives on aircraft, and instead pursue action through the UN ­Security Council (UNSC). This action set the precedent for later responses to t­errorist activity and the post-9/11 era’s War on Terror. The Montreal Convention was the third significant international antiterrorism treaty116 enacted to suppress the increase in terrorist and violent activities by various political groups and non-state actors and is one of the UN Conventions on Terrorism.117 The treaties were enacted in order to tackle specific threats caused by the violent acts of various political groups operating during the latter half of the twentieth century. Civil ­aviation was an area that presented particular vulnerabilities and the treaty regime was implemented in response to actual events. This method of confronting terrorism created a legitimate legal system based on states parties agreeing to the obligations of the various treaties. That the threat was present was demonstrated by the fact that an event of, or similar to, the activities defined within the treaty had actually occurred. However, law is only effective when it is adhered to and utilised. The Montreal ­Convention became the centre of a dispute between the US, UK and Libya and ­demonstrates the ineffectiveness of law in controlling and restricting power when those wielding the power refuse to be so bound. i.  Lockerbie Bombing On 21 December 1988, Pan Am Flight 103, bound for New York, exploded over the southern Scottish town of Lockerbie, killing all 243 passengers and 16 crew members on board, plus 11 people on the ground.118 As the ­majority of passengers on board the aircraft were US citizens, the FBI joined the Scottish police in conducting a three-year investigation. On 13 ­November 1991, the Lord Advocate of Scotland issued ­warrants, on charges of murder, conspiracy to murder and contravention of the ­Aviation Security Act 1982 (UK), for the arrest of Abdelbaset Ali al-Megrahi (a ­ Libyan intelligence officer) and Lamin Khalifa Fhima (­Libyan Arab Airlines station manager to Luqa Airport in Malta). The US also issued charges against the two suspects on the same day. The charges centred on the allegation that the suspects had placed a bomb on board the flight that then exploded and caused the plane to crash. The Libyan

116  The first two being: Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963; Convention for the Suppression of Unlawful Seizure of Aircraft 1970. 117  See n 28. 118  Facts taken from Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of ­America; Libyan Arab Jamahiriya v United Kingdom) (Application Instituting Proceedings) [1992] ICJ Rep.

Terrorism: A Threat to Security? 229 ­ overnment denied any ­involvement in the events leading to the incident G and was not willing to surrender the accused or to admit general involvement in terrorist activities. As the suspects were present on Libyan territory, the Libyan Government sought to rely on the ‘extradite or prosecute’ formula of the Montreal Convention 1971, to which all the states involved were parties. On 30 December 1991, the UK and US issued a joint declaration, circulated to the UN General Assembly (UNGA) and UNSC, stating that ‘Libya must surrender for trial all those charged with the crime’.119 France requested that Libya (inter alia) produce material evidence in the enquiry following the bombing of Union de Transport Aeriens (UTA) flight 772, which had exploded over Niger in September 1989.120 The states also issued a declaration on terrorism and requested that Libya comply with their demands.121 In January 1992, Libya attempted to call a special assembly of the UNGA denying UNSC competence in the matter and invoking the dispute settlement provisions in Article 14 of the Montreal Convention. On 2 January 1992, the UK and US began to seek support for a UNSC resolution calling on Libya to comply with their demands. The UNSC passed Resolution 731 on 21 January 1992, urging Libya to provide a ‘full and effective’ response to the ‘requests’ of the UK and US.122 Together with requests for an indication of provisional measures of protection, Libya filed separate applications against the UK and US at the International Court of Justice (ICJ), invoking Article 14 of the Montreal Convention 1971 as the basis, claiming that the UK and US were attempting to bypass the provisions (and obligations) of the Convention by seeking sanctions. Libya claimed that it had sought the co-operation of the two states in conducting an investigation into the incident and the alleged offences, but had received no response.123 The UK and US resisted ­Libya’s application to the ICJ to resolve jurisdictional issues and claimed that Libya had not tried arbitration. Three days after the completion of oral hearings on Libya’s request for provisional measures, the UNSC adopted UNSC Resolution 748124 under Chapter VII of the UN Charter imposing sanctions on Libya for failing to comply with UNSC Resolution 731 1992, which urged Libya to ‘provide a full and effective response’ to the requests of the UK and US. The UK and US appear to have been determined from the beginning of the process to involve the UNSC should Libya refuse to comply with

119 

A/46/827 S/23308 (1991). A/46/825 S/23306 (1991). 121  A/46/828 S/23309 (1991). 122  UNSC Res 731 (21 January 1992) UN Doc S/RES/731. 123  Libyan Arab Jamahiriya v United States of America (n 118). 124  UNSC Res 748 (31 March 1992) UN Doc S/RES/748. 120 

230  Lydia Davies-Bright their demands made through diplomatic channels. The use of the UNSC’s Chapter VII powers in this context is questionable as the bombing had already occurred and there was no concrete evidence or real suggestion that another was imminent.125 In the ICJ Judgment, Judge Bedjaoui (dissenting) questioned the validity of asserting a threat to international peace and security in 1992 when the Lockerbie bombing had occurred in 1988 and also pointed to the lack of evidence provided to the UNSC.126 The Resolution required Libya to extradite the two suspects, contrary to Article 7 Montreal Convention 1971, which provides that the state where the alleged offenders are found is responsible for prosecuting them127 (the decision is taken in the same way as under national law), and was attempting to coerce Libya into compliance. The UK and US wished to prosecute the suspects. Article 5 Montreal Convention 1971 gave the UK jurisdiction as the event took place on its territory and the US jurisdiction as it involved a US aircraft and US citizens. After lengthy negotiations and a change in the international mood (caused by the perceived intransigence of the UK and US), the states agreed to a trial of the two Libyan suspects by a Scottish court sitting in The Hague. UNSC Resolution 1192128 stated that sanctions would be suspended when the accused were handed over for trial and other ­conditions129 were met.130 Libya formally admitted responsibility for the Lockerbie bombing in a letter to the president of the UNSC in 2003, stating that it ‘accepted responsibility for the actions of its officials’.131 However, it has subsequently been claimed that Libya’s actions were motivated by a desire to see the sanctions removed as they were producing devastating consequences for the Libyan people and economy.132 125  Article 39 UNC provides for an invocation of Chapter VII powers if there is a threat to international peace and security. 126  L Davies-Bright and ND White, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya Arab Jamahiriya v. United States of America), Request for the Indication of Provisional Measures, Order of 14 April 1992, 1992 ICJ Reports 114 in IF Dekker, C Ryngaert, RA Wessel and J Wouters (eds), Leading Judicial Decisions of the Law of International Organizations (Oxford, Oxford University Press, 2015 (forthcoming)). 127  Article 7 Montreal Convention 1971. 128  UNSC Res 1192 (27 August 1998) UN Doc S/RES/1192. 129  Making evidence and witnesses available to the court upon request for the purposes of the trial (para 4). 130 On the establishment of this court, see A Aust, ‘Lockerbie: The Other Case’ (2000) 49 International and Comparative Law Quarterly 278. On the results of the Hague trial, see SD ­Murphy, ‘Verdict in the Trial of the Lockerbie Bombing Suspects’ (2001) 95 American Journal of International Law 405. 131 ‘Libya Letter: Full Text’ BBC News (16 August 2003) http://news.bbc.co.uk/1/hi/ scotland/3155825.stm. 132  Eg Saif al-Gaddafi said that Libya had admitted responsibility in order to see the trade sanctions removed, ‘The Conspiracy Files: Lockerbie’ BBC Two (31 August 2008). Libyan Prime Minister Shukri Ghanem stated that Libya had paid compensation as the ‘price for peace’ and to secure the end of sanctions, BBC Radio Four (24 February 2004).

Terrorism: A Threat to Security? 231 There are several difficulties with the actions of the UK and US in dealing with the matter of the Lockerbie bombing suspects. Arguably, the two states were able to utilise their P5 UNSC position to further their own political and national agendas. The states made explicit demands from the start of the process and seemed determined to involve the SC if their demands were not met. Under Article 5(2) Montreal Convention 1971, Libya had the legal right, as the two men were on Libyan territory, to try the suspects in a domestic court and under its domestic law. The UK and US relied on Article 103 UNC133 in seeking a SC resolution and thereby circumventing the established treaty regime. However, although Article 103 UNC gives UNSC resolutions primacy over pre-existing international obligations in terms of obligations, it does not provide that such resolutions are supreme and unquestionable. As the UNSC is not subject to effective judicial scrutiny, influential states are able to disregard the provisions of international law to suit their particular and perceived (political) needs. This arguably undermines the process of international law. Additionally, the UNSC arguably breached its own human rights obligations and Articles 1(3) and 24(2) UNC134 by imposing sanctions that resulted in a great deal of suffering for the Libyan people. The case of Lockerbie highlights the weaknesses of the international response to the threat of terrorism and exposes how political constructions of justice are prioritised over the maintenance and application of established legal mechanisms. The assertion by the US and UK that Libya was directly responsible for the bombing became accepted as fact and all actions proceeded from that basis. The Montreal Convention was seen as being an ‘ineffective’ method of confronting state-sponsored terrorism and for extraditing the suspects.135 However, extradition is one of two options available to a state—the Montreal Convention does not compel extradition. In signing the Montreal Convention, the states have accepted the option of prosecution according to each signatory state’s criminal justice system. Thus, providing that the state in question carries out the judicial process in accordance with its own national criminal system, this is sufficient to ­satisfy the requirements of the Convention and international law. The Convention allows for states to prosecute suspects present on their own soil. The assertion that a state prosecuting an individual who was acting

133  Resolutions of the UNSC override pre-existing international legal obligations in terms of UNC obligations. 134  To act in accordance with the purposes and principles of UNC. 135  JA Frank, ‘A Return to Lockerbie and the Montreal Convention in the Wake of the ­September 11th Terrorist Attacks: Ramifications of Past Security Council and International Court of Justice Action’ (2002) 30(4) Denver Journal of International Law and Policy 532, 544.

232  Lydia Davies-Bright as an organ of the state ‘would not be a satisfactory solution’136 seems to confuse what may be felt to be politically ‘right’ with the legal process and arguably involves a value judgment being made in regard to the v ­ alidity of a particular state’s criminal process. It is possible for the judicial process to proceed, notwithstanding political orders behind the individual’s actions. Should it be found that the person was acting on the basis of executive orders, is it fair and just that the individual in question be incarcerated for being the person physically performing the act of the state? Prosecuting individual persons does not confront the underlying issue as those in positions of power remain in situ and capable of similar actions— wherever that prosecution may take place. Of course, this does not take into account that both the US and UK appear to have pre-determined Libya’s culpability in the matter, as indicated through the language of the UNSC resolutions, which raises fair-trial concerns of a different nature. However, a thorough examination of the case lies outside the purview of this chapter. Suffice it to say here, the international community had the opportunity to utilise one of the legal instruments enacted for this very purpose. Instead, the actions of the states involved side-lined the Convention and set a precedent for future responses. ii.  From Specific to General Threat Prior to 9/11, terrorism was dealt with on a more case-by-case basis, as with Lockerbie, and international instruments were enacted to respond to specified threats. The international community dealt with apparent issues and specific problems, rather than abstracts.137 The current approach is far more general and all encompassing—‘terrorism’ and ‘Islamic e­ xtremism’, though widely used terms, are too abstract and ill-defined to have any clear, unambiguous meaning. The Lockerbie case demonstrates that the criminal justice approach of the Montreal Convention is unenforceable in the face of the political power wielded by Western states. The states involved (USA, France and UK) were able to utilise the Chapter VII power of the UNSC in order to bring sufficient pressure to bear on Libya to hand over the two suspects and to bring about a result that suited their political and security agendas. The states made the conscious decision to follow a different path and to not pursue the process laid out by the C ­ onvention. In so doing, they arguably undermined the criminal justice approach, the aut dedere aut judicare provisions of the 1971 Convention, and made it

136  Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya Arab Jamahiriya v United Kingdom) (Request for the Indication of Provisional Measures: Order) [1992] ICJ Rep 3, Dissenting opinion of Judge Bedjaoui, 37. 137  See, eg the treaties on hijacking from the 1970s–80s (n 28).

Terrorism: A Threat to Security? 233 appear ‘cumbersome’ and ‘ineffective’.138 This then acts as a foundation for a tougher, more universal legislative response in the form of UNSC resolutions that compel all states to act within the preferred framework, by utilising Article 103 UNC, and help to politically justify military responses in the face of non-compliance. Numerous domestic legal instruments exist that provide for the ­outlawing of a range of behaviours that could endanger other citizens. In the UK the behaviour of those wishing to support or promote terrorism has been legislated for since the 1861 Accessories and Abettors Act (as amended).139 This covers behaviour such as supplying the information, equipment or weaponry for the performance of a criminal act140 or the instigation, incitement141 or encouragement142 of an offence. A person is considered an accessory to the offence if they have persuaded the perpetrator to commit the act.143 Thus, it can be seen that, in the UK at least, the criminal law provided for situations such as where A purchases the requisite equipment to enable B to build a bomb and plant it/explode themselves in a public place, or where A encourages B to commit an offence by persuading them of its necessity within a wider campaign. However, despite the existence of a plethora of domestic statutes covering a vast array of offences generally committed by terrorists,144 the War on Terror has allowed the UK Government, and others, to categorise the criminal law as being insufficient to tackle and defeat the emerging threat.145 Politicising offences prosecutable under criminal law and including the ­motivating ideology in the establishment of the requisite mens rea may further exacerbate the sense of disenfranchisement and grievance that

138 ND White, ‘Terrorism, Security and International Law’ in A Hehir, N Kuhrt, and A Mumford, International Law, Security and Ethics (London, Routledge, 2011) 11. 139  Section 8 ‘Whosoever shall aid, abet, counsel or procure the commission of an indictable offence is liable to be tried, indicted and punished as a principle offender.’ 140  Which would come under ‘aiding’, R v Bainbridge [1960] 1 QB 129. 141  Which would fall under ‘abetting’ and may include acts as innocuous as demonstrating support or approval, Wilcox v Jeffrey [1951] 1 All ER 464. 142  Which is covered by ‘counselling’ and need not be significant, R v Giannetto [1997] 1 Cr App R 1. 143  A causal link between the persuasion (in whatever form) and the offence committed is required, Attorney General’s Reference (No. 1 of 1975). 144  Eg hostage-taking, Taking of Hostages Act 1982; various acts relating to the endangerment of aircraft and hijacking, Aviation Security Act 1982; racially-aggravated arson (endangering life), Crime and Disorder Act 1998; aggravated criminal damage, aggravated arson and arson, Criminal Damage Act 1971; hijacking of ships, Aviation and Maritime Security Act 1990; possession of a firearm with intent to endanger life and/or cause fear of violence, Firearms Act 1968; genocide, crimes against humanity, war crimes and related offences, International Criminal Court Act 2001; offences against the international protection of nuclear material, Nuclear Material Offences Act 1983. 145  B Dickson, ‘Law Versus Terrorism: Can Law Win?’ (2005) 1 European Human Rights Law Review 11.

234  Lydia Davies-Bright increases the ­possibility of radicalisation and a move towards violence.146 The ­conviction of Abu Hamza al-Masri in 2006 of offences under the Offences Against the Person Act 1861 and the Public Order Act 1986 demonstrates the effectiveness of pre-existing criminal legislation in effecting prosecution of those encouraging or inciting ideologically motivated acts. The international legal regime contains numerous instruments, of which the Montreal Convention 1971 is one, that could be utilised to greater effect in countering transnational activities and events. However, rather than upholding and utilising the existing criminal justice regime, thereby strengthening it through its use and also paying due regard to the philosophical foundations of human rights, states have chosen to utilise the military paradigm. The war rhetoric and the language of fear have been used to justify the exceptional measures introduced post-9/11 and to press upon the Western public that action is necessary and essential to ensure the safety of civilians and national and international security.147 There is a general consensus that national and international actions are both necessary to contain and eradicate the threat of terrorism148 and 9/11 has come to be defined and seen as a crime against humanity.149 This has led to the acceptance of domestic legislation curtailing individual rights and extraordinary international responses, such as military invasion, targeted killings, drone strikes, arbitrary detention and torture. UNSC Resolution 1373150 legislates for all forms of terrorism and shows a further broadening of the approach from specific threats to a more general, abstract approach—all acts of terrorism are deemed to be threats to international peace. Theoretically, this would absolve states and the UNSC from making judgements that some events are, but others are not, threats to the peace. However, there still needs to be a political determination that an act or event is terrorist in nature. In passing Resolution 1373, the UNSC is here performing a general, legislative function. Although provisions in UNC151 arguably gives the UNSC power to behave in such a way, it bypasses the normal system, function and creation of international law. The broad provisions and lack of definitions essentially allow states to interpret the provisions of Resolution 1373 in ways suited to their own domestic policies and concerns and so raises fundamental human rights

146  HM Government (UK), ‘Countering International Terrorism: The United Kingdom’s Strategy’ (July 2006) 10. 147  Cassese (n 32) 993. 148 J McCulloch and S Pickering, ‘Pre-Crime and Counter-terrorism: Imagining Future Crime in the ‘War on Terror’’ (2009) 49 British Journal of Criminology 628, 629 and 636; Pantazis and Pemberton (n 75) 650–51. 149  Cassese (n 32) 994–95. 150  UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373. 151  Articles 25 and 103.

Terrorism: A Threat to Security? 235 concerns. In combatting terrorism, states should comply with their human rights obligations and with existing international law,152 rather than seeking to pervert the existing legal regime. The international legal framework established after World War II was based on foundations of undefined security, masked by the clear principles of protecting the inviolability of human dignity. Whether or not an individual state accepts the foundational philosophical concepts, it is clear what they are. The post-9/11 counter-terrorism regime has arguably laid the path to the destruction of this foundation. States are, theoretically at least, equal.153 However, some states may be seen as being less equal than others as their political system does not conform to the hegemonic norm perpetuated by Western states.154 Likewise, citizens within these states who do not conform to the prevailing ideology are in danger of being viewed as less than one. C.  The Destruction of One The changes in international law post-9/11 have been driven by ­Western states, in particular the US and UK. That there has not been an international outcry or protest over the broadening and militarisation of the response to the perceived threat of terrorism cannot be said to be evidence of a consensus. Silence is not necessarily agreement and ­acceptance,155 especially when the political rhetoric of the US and UK administrations156 has rendered proper debate over the most ­appropriate and effective response virtually impossible. Disregarding established and accepted legal (and moral) principles in order to pursue a political agenda undermines the concept of law as a standard to which all are held.

152  UNGA Res 60/158 (28 February 2005) UN Doc A/RES/60/158; UN Global CounterTerrorism Strategy (n 79); UNGA Res 62/272 (15 September 2008) UN Doc A/RES/62/272. 153  At the 2005 World Summit, world leaders reaffirmed the principle of sovereign equality. 154  Buzan, Wæver and De Wilde (n 73). 155  White (n 138) 11. 156  See, eg Former US President GW Bush (n 1) stating to the world that ‘Either you are with us, or you are with the terrorists’ and thereby asserting that any opposition to what the US chose to do in response to 9/11 and international terrorism was effectively support for terrorism. This sentiment was repeated by Bush several times, eg ‘nations are either with us or against us in the war on terror’. ‘Full text of George Bush’s Speech: Full Text of George Bush’s speech on Israel and a Palestinian State’ The Guardian (25 June 2002) www. theguardian.com/world/2002/jun/25/israel.usa. More recently, politicians have portrayed the threat as being such that it demands immediate action, or risk ‘a terrorist caliphate on the shores of the Mediterranean’, ‘MPs’ Iraq Vote: Cameron Warns Isis Air Strikes not enough to Defeat “Bunch of Psychopathic Terrorists”’ The Independent (27 September 2014) www. independent.co.uk/news/uk/politics/mps-iraq-vote-cameron-warns-isis-air-strikes-notenough-to-defeat-bunch-of-psychopathic-terrorists-9757715.html; Jackson (n 70) 2, 92.

236  Lydia Davies-Bright Such actions are a­ rguably a regression to a pre-World War II situation. As stated above, human rights are essential foundational principles upon which the international community stands, they serve as a check to state power and are based on the value of one—each individual counts. However, security acts and measures are politically justified because they are purported to save and/or protect the greatest number of individuals (the consequentialist cost/benefit analysis). Nevertheless, it is the assertion of this ­chapter that the prioritising of the many over the one actually jeopardises the safety of all. In both the moral and legal realms a judgement needs to be made as to whether the units being counted are of equal value, or whether some units are worth more than others. This is relevant to the analysis of the security approach taken by individual states and the international community in their attempt to combat terrorism. The war in Iraq is estimated to have caused in excess of 400,000 civilian deaths,157 compared to 2,823 killed in the Twin Towers incident.158 Thus, the crucial question becomes whether or not all human lives are intrinsically equal and, if they are not, what is the basis for the differential and who is it who makes that distinction and on what criteria? Despite no terrorist attack having been perpetrated on US soil since 9/11, the US continues to kill individuals who, it is alleged, pose a direct threat to US security and continues to hold individuals, without charge or trial, in facilities such as Guantánamo. This is arguably a regression to the situation prior to World War II and the creation of the UDHR where human lives were categorised and some were not afforded even the most basic of respect and protection. By labelling those of a different political and theological ideology as the ‘enemies of democracy’ (the automatic implication being that to ­disagree with the implementation and continuation of a particular democratic system is to hold an unacceptable view),159 by describing them as ‘psychopaths’ incapable of reason160 and persons following ‘a perverted form of Islam’,161 as opposed to disaffected members of the middle classes in middle-income states,162 and by using the rhetoric of war to describe confrontations with the holders of such alternative views, governments have ensured that there can be no real and open ideological debate.

157 ‘Iraq Study Estimates War-related Deaths at 461,000’ BBC News (16 October 2013) www.bbc.co.uk/news/world-middle-east-24547256. 158  T Templeton and T Lumley, ‘9/11 in Numbers’ The Observer (18 August 2002) www. theguardian.com/world/2002/aug/18/usa.terrorism. 159  See, eg UK Prime Minister David Cameron’s speech in Munich (n 53). 160  See, eg n 156. 161  MP Hazel Blears speaking on ‘Today Programme’ BBC Radio Four (4 June 2014). 162  R Jackson and N Howe, The Graying of the Great Powers: Demography and Geopolitics in the Twenty-first Century (Washington, Center for Strategic and International Studies, 2008) 117.

Terrorism: A Threat to Security? 237 By combining an ideology with the acts of violence used by the perpetrators as a method of communication, the potential for discourse is lost. The fact that Osama bin Laden and al-Qaeda’s stated aim was to remove the influence of Western states from Muslim countries and to facilitate the implementation of a strict interpretation of Shari’a law, rather than the total destruction of democracy and the West,163 is largely ignored. The language of the War on Terror has now evolved to include anyone considered a ‘subversive’.164 All disaffected and disenfranchised groups of an Islamic, anti-Western, anti-democratic or anti-establishment philosophy have been swept up under the terrorist label. New legislation, enacted in an environment of national panic, remains on the statute books and raises the bar for subsequent responses to unpredicted events.165 The clear d ­ anger is that at each legislative step the rights of the individual are increasingly and irreversibly eroded166—no government would take the political gamble of repealing anti-terrorism legislation as any subsequent terrorist act would be framed by the political opposition and security services as being consequential. In the UK, the Coalition Government replaced the controversial and oppressive control orders with TPIMs.167 However, the idea that it is acceptable for a state to restrict and monitor individuals, who have not been charged with or convicted of an offence, on the basis that they are suspected of posing a threat, has not been challenged—the method has merely been made more politically palatable. The concept that a person is innocent until proven guilty appears to have no application in the face of the threat of terrorism. i.  ‘One’ is no Longer Safe Post-9/11 academics and commentators have sought to justify and explain the actions of politicians and military commanders, which has included a debate on whether or not torture is justifiable in a counter-terrorism situation and a justification of the arbitrary taking of life as being either 163 J Beckman, Comparative Legal Approaches to Homeland Security and Anti-terrorism (­Aldershot, Ashgate, 2007) 10. 164  C Gearty, ‘Terrorism and Morality’ (2003) 4 European Human Rights Law Review 377, 380. 165  See, eg US Patriot Act 2001; UK Terrorism Acts (n 28). 166  It is accepted and acknowledged that the erosion of civil liberties is not linear and there have been efforts to halt it, eg Lord Hoffman as the voice of reason in Belmarsh (n 94) para 96: ‘Terrorist violence, serious as it is, does not threaten our institutions or our existence as a civil community.’ However, as the courts are willing to defer to the political assessment of threat when derogating from IHRL obligations, it is arguable that the political agenda and discourse will ultimately override legal safeguards, eg Lawless v Ireland [1961] ECHR 2; Lord Hope in Belmarsh (n 94) para 116 stated: ‘the questions whether there is an emergency and whether it threatens the life of the nation are pre-eminently for the executive and for Parliament’. 167 The Terrorism and Preventative Measures Act 2011 provides that suspects can be restricted in their movements, location and communications.

238  Lydia Davies-Bright in an armed conflict situation or as a mistake.168 The US and Israel have both used lethal force against suspected terrorist operatives in the form of targeted killings, including the killing of a Hamas leader and his wife, child and 13 others.169 Both US and UK forces have engaged in highly questionable acts, many of which would be defined (by others) as torture and which, in any case, certainly amount to cruel, inhuman or degrading treatment.170 The choice is posited as being between one (allegedly) guilty party and many innocent others. In this way, politicians, military leaders, academics and commentators alike assert that it is better to sacrifice the one for the many. However, if the unit being counted is ‘one human life’ then that category has certain characteristics that are foundational to the social order that is being protected by these security measures—namely human rights, universal in nature and in application. To justify the violation of the rights of one on the premise that it will preserve the rights of many, risks undermining the principles on which the proponents of such actions claim to stand. The claim that the nullification of the rights of a few safeguards the rights of the many does not stand on its own terms and, in fact, threatens the security of each individual. Thus, the examination of this issue is of crucial significance and relevance to the societies that the security actions are purported to protect. The determination of acceptability arrived at in extremis affects and informs actions and activities in other spheres. Qualifications made to the conception of the primary unit being counted (in this case the human person) in order to permit the security measures arguably alter its nature and intrinsic value. It is asserted that as soon as one human life is counted then it must always matter, regardless of any subjective assessment of that human life, and so the foundational human rights principles necessarily prohibit certain actions. This premise not only protects the individual in question, but all individuals. In this way, the security of the state and of society is secured and safeguarded. ii.  ‘One’ no Longer Counts During the Bush administration there was much discussion on the acceptability of torture, normally framed within the ‘Ticking Bomb Scenario’ (TBS). In the TBS the detainee is assumed to be guilty and so the decision to torture them appears to be relatively straightforward. Sussman 168 See, eg references to the killing of Jean Charles de Menezes as a tragedy and mistake, ‘Police Chief “Sorry” Over Death’ BBC News (24 July 2005) news.bbc.co.uk/1/hi/ uk/4712061.stm. 169 D Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-judicial Executions or Legitimate Means of Defence?’ (2005) 16(2) European Journal of International Law 171, 172; Greenberg and Dratel (n 5). 170  CAT 1984.

Terrorism: A Threat to Security? 239 suggests that by committing a wrong (planting a bomb) the detainee has forfeited their rights.171 This stance is legally and morally problematic as it undermines the moral values associated with justice and fair trials, which are crucial elements of many justice systems and enshrined in various regional and international human rights instruments.172 To maintain that it is morally permissible to torture a guilty terrorist suspect is to radically alter the conception of human rights—they can no longer be held to be self-evident and universally applicable if there are some to whom they do not apply. Within current law there are permissible limitations, but, as mentioned above, the absolute prohibition on torture is strictly non-derogable.173 Writers such as Sussman and Jones appear to assert that by the presumed committing of a wrong (in the absence of due process and untested in a court of law), the detainee has forfeited their right to not be tortured as they have ‘undermined’ the integrity of the torturer.174 In the same way, a person alleged as being a member of a group proscribed as terrorist and/ or suspected of performing acts of terrorism may be deliberately targeted and killed, with no attempt being made to detain them and commit them to the criminal and judicial process.175 Acceptable rights restrictions and limitations can only legitimately be imposed after the due process of law. A convicted criminal is subject to, for example, restrictions on their liberty: they cannot be sentenced to torture. Therefore, there is no apparent logic in the argument that it is permissible to treat a suspect in a harsher manner than a convict, especially if they have not been granted access to due process protections. The detainee’s guilt is an unproven variable and so should not influence the moral decision to torture or not. In the same way, the presumption of a person’s involvement in terrorist activity, albeit based on intelligence (which is not the same as tested evidence), should have no bearing on the decision whether or not to arbitrarily deprive that person of their right to life—as happened

171 

D Sussman, ‘What’s Wrong with Torture?’ (2005) 33 Philosophy and Public Affairs 1. UDHR, ICCPR, ECHR—none provide that imposing a punishment on a detainee prior to trial is permissible. 173  Article 2 CAT 1984. 174  Sussman (n 171) 18; B Jones, ‘Moral Integrity: A Justification for Torture?’ (2007) Supplement UCL Jurisprudence Review 47, 57. 175  It is recognised that there is an argument that actions, such as drone strikes, are legitimate in an armed conflict situation and are compatible with the Laws of War. However, given that there is no coherent enemy against which the US (and other states) is fighting and that the persons targeted are usually in civilian clothes and in civilian contexts (such as out/ inside their house, as with Osama bin Laden, see below), this justification is rejected here. 172 

240  Lydia Davies-Bright with Jean Charles de Menezes and Osama bin Laden.176 It is both morally and legally problematic to make the correctness of a moral and legal judgement contingent upon an enemy’s behaviour—whether or not they choose to commit a prohibited act. Although there are circumstances in which a course of action becomes legally justifiable in the face of a prohibited act performed by another,177 this needs to be weighed up against the possible consequences. In addition, what may be acceptable on an individual level is not necessarily permissible or desirable at the state level. To believe and to act otherwise is to eschew any claim of moral and legal continuity or consistency and is to prove any claim of a moral and legal foundation, on which the security argument stands, as being false. When choosing a ‘lesser evil’ or the path of ‘maximum utility’ there is inevitably a value judgement involved. Using the various thought experiments that run along the same theme, the decision to kill the one to save the many often hinges upon the guilt or innocence of the one; this assumes not all ‘ones’ are equal. Killing a baby to save an aeroplane full of people is not such a straightforward choice as killing an adult terrorist for the same purpose. The baby is viewed as an innocent, whilst the adult terrorist is not, and so this impacts the decision making process, which includes considerations of the possible justifications. This demonstrates that human beings are ‘irrational’, emotional creatures and that it is more than just utility that is to be taken into account. The same is true when arguing for torture in certain, sanctioned and controlled situations. In the TBS ‘the one’ is the person with vital information regarding an imminent bomb and torture is the most time efficient method to retrieve the information.178 That person is tortured, even to the point of death, to retrieve information in order to save many lives (although it hardly needs to be pointed out that a dead interrogee is of no intelligence value). The absolute prohibition on torture is supported by the deontological principle that people are an end in themselves, not a means to an end. It can also be argued from the modern deontological viewpoint of Rawls that the ‘veil of ignorance’ should prevent any acceptance of torture as it is possible to imagine a counterfactual scenario in which anyone could

176  See below. It is asserted that it is acceptable and coherent to view both killings as contrary to established principles, despite one being viewed as ‘innocent’ and the other ‘guilty’ of terrorism, as neither were subjected to a legal process and facts were assumed as opposed to being established in a court of law. Both were killed as a result of the utilitarian assessment that the killing of one is justified when it may potentially save the lives of many. 177  Eg, an act of self-defence when faced with an imminent threat. This is not without qualification and it is for the individual to demonstrate to a court of law that his/her act was reasonable in the circumstances in which s/he was in at the time. 178  S Miller, ‘Is Torture Ever Morally Justifiable?’ (2005) 19 International Journal of Applied Philosophy 179.

Terrorism: A Threat to Security? 241 be cast in the role of ‘terrorists’ if confronted with a despotic regime.179 The various cases for torture appear to be hybrids of utilitarian and ­deontological ideas with the proponents trying to satiate their intuition to sacrifice a guilty one to save innocent others, whilst also attempting to maintain deontological principles.180 To this author, this is not a satisfactory or consistent moral proposal. It cannot be correct on the one hand to say that all humans have inviolable human rights and then on the other to assert that they are lost should a (suspected) wrong of sufficient magnitude be committed. What would be sufficiently wrong is not an objective assessment. Or if the guilt is not the crucial aspect, but rather the number of lives lost and sacrificing one is a lesser evil, then this should be extended into other aspects of life and matters of public policy.181 Gray exposes the argument used by torture apologists that since the use of torture is a reality and as the rule of law is ‘a core liberal value [that] cannot be compromised in the fight against terrorism’,182 torture must be brought within the legal sphere. Dershowitz argues for the introduction of torture warrants to regulate what he views as a necessary evil. P ­ utting aside the arguments relating to the feasibility of there being enough time to comply with a judicial procedure for obtaining a warrant in a ­genuine TBS, actual cases illustrate that any legitimisation of a practice, even within strict parameters, is subject to expansion. The Israeli Supreme Court’s (­sitting as the High Court of Justice) statement that ‘the imminence criteria is satisfied even if the bomb is set to explode in a few days, or perhaps even after a few weeks, provided the danger is certain to materialise’ and torture is necessary183 demonstrates this risk. Dershowitz himself cites a Filipino case where the suspect was beaten for sixty-seven days in order to gain information that may (or may not) have assisted in the foiling of a terrorist plot. Israel also demonstrates that limitations will invariably be exceeded as, even after torture was sanctioned by the L ­ andau Commission, Israeli General Security Service agents allegedly often exceeded the limits set in the Commission’s directives and then covered it up.184 Additionally, ­making torture permissible risks it becoming the first, as

179 

J Rawls, A Theory of Justice (Oxford, Oxford University Press, 1999). F Allhoff, ‘A Defense of Torture: Separation of Cases, Ticking Time-Bombs and Moral Justification’ (2005) 19 International Journal of Applied Philosophy 243; A Harel and A Sharon, ‘What is Really Wrong with Torture?’ (2008) 6(2) Journal of International Criminal Justice 241. 181  Such as choices regarding whether to spend tax payers’ money on medicine for a few or on something that will be of benefit to more. These choices often cause great upset. 182  J Gray, ‘A Modest Proposal’ The New Statesman (17 February 2003). 183  The Public Committee Against Torture in Israel v The Government of Israel et al (­Judgment) [1999] HCJ 5100/94, para 34; Y Ginbar, Why Not Torture Terrorists? (Oxford, Oxford ­University Press, 2008) 205. 184  B Brecher, Torture and the Ticking Bomb (Oxford, Blackwell, 2007) 53. 180  Eg,

242  Lydia Davies-Bright opposed to the last, resort.185 In cases where torture has been permitted it has quickly become routine and systematic186 as ‘no government in the world can be trusted not to abuse the power’.187 In Israel, harsh techniques were not reserved solely for those extreme cases in which necessity was deemed to legitimise violence; and ‘moderate’ interrogations resulted in approximately ten detainees dying from their mistreatment.188 The difficulty is not with Israel, nor any other country, but with intemperate human beings. Once an enemy is viewed as inhuman or unequal, then anything is permissible.189 Human rights norms are supposed to stand as a protection for all individuals against the use and abuse of such power. iii.  Jean Charles de Menezes as One On 22 July 2005 armed officers from the Metropolitan Police Service (MPS) shot and killed Jean Charles de Menezes, a Brazilian national, at Stockwell London Underground station.190 He had been followed from his home by surveillance officers who were looking for Hussein Osman, one of the four persons suspected of planting four bombs on the London transport system the previous day. Although there subsequently followed various misleading accounts in the press by high-ranking MPS officers,191 it became clear that Mr de Menezes ‘had nothing to do with terrorism’ and had actually been travelling to work.192 Press releases given throughout 22 July 2005 linked de Menezes to the bombs found the previous day and stated that de Menezes’ ‘clothing and behaviour at the station’ had contributed to the suspicions of the surveillance officers.193 The following day, the police issued statements that acknowledged that de Menezes was not connected

185 

Brecher (n 184) 57. A Solomon, ‘A New US Threat to Human Rights: The Case Against Torture’ The Village Voice (27 November 2001). 187  WL Twining and PE Twining, ‘Bentham on Torture’ (1973) 24 Northern Ireland Legal Quarterly 305. 188  S Chapman, ‘Should We Use Torture to Stop Terrorism?’ Chicago Tribune (1 November 2001). 189  Chapman (n 188); Ginbar (n 183) 132ff. 190  Independent Police Complaints Commission (IPCC), ‘Stockwell One: An Investigation into the Shooting of Jean Charles de Menezes at Stockwell Underground Station on 22 July 2005’ (19 January 2006) webarchive.nationalarchives.gov.uk/20100908152737/http://www. ipcc.gov.uk/stockwell_one.pdf. 191 See, eg Metropolitan Police Commissioner Sir Ian Blair stating at a press conference that de Menezes had been ‘challenged and refused to obey police instructions’; ‘Man Shot Dead by Police on Tube’ BBC News (22 July 2005) http://news.bbc.co.uk/1/hi/uk/ 4706787.stm. 192  IPCC (n 190) para 1.2. 193 IPCC, ‘Stockwell Two: An Investigation into Complaints about the Metropolitan Police Service’s Handling of Public Statements Following the Shooting of Jean Charles de Menezes on 22 July 2005’ (2 August 2007) 7–9 webarchive.nationalarchives.gov. uk/20100908152737/http://www.ipcc.gov.uk/ipcc_stockwell_2.pdf. 186 

Terrorism: A Threat to Security? 243 to the bombs found on 21 July 2005, but continued to state that ‘his clothing and behaviour added to [the surveillance officers’] ­suspicions’.194 It later emerged from CCTV footage that de Menezes had in fact walked ‘calmly’ into the station, pausing to pick up a newspaper, before using his travel card to pass through the barriers195 and that his clothing was appropriate for the weather.196 The IPCC investigation report indicates that crucial information was withheld from the press and perhaps also from senior MPS officers and Home Office representatives as to the identity and suspect status of the person shot.197 In the inquest into the shooting, the jury rejected the armed officers’ account of events and returned an open verdict.198 Although Jean Charles de Menezes was later shown to be innocent of any connection to terrorism, the IPCC does not describe him as innocent199 and also alludes to potential immigration issues200 and that he was a cocaine user.201 This unnecessary information arguably reinforces notions that those who are truly innocent have nothing to fear from the activities of the security forces and that the infringement of human rights only impacts the guilty.202 The killing of Jean Charles de Menezes can be explained as ‘a tragic mistake’203 and the understandable consequence of a zealous police unit determined to protect the public and themselves from one of ‘four very dangerous individuals who had attempted to commit mass murder’ the previous day.204 Indeed, the IPCC investigation report of the shooting 194 

IPCC (n 193) 9–10. IPCC (n 190) para 8.16. 196  IPCC (n 190) paras 8.16 and 20.62. 197  IPCC (n 193). 198 R Edwards, ‘Jean Charles de Menezes Shooting: No Officers Face Charges’ The ­Telegraph (13 February 2009) www.telegraph.co.uk/news/uknews/law-and-order/4611838/ Jean-Charles-de-Menezes-shooting-no-officers-face-charges.html. 199  IPCC (n 190) para 4.1 describes the 52 persons who died in the London bombings on 7 July 2005 as ‘innocent’; The IPCC summary chronology of the events also describes the 52 as ‘innocent’, in direct contrast to the 22 July entry of ‘Jean Charles de Menezes shot and killed by officers from the Metropolitan Police Service’ IPCC Archived Webpage webarchive.nationalarchives.gov.uk/20100908152737/http://www.ipcc.gov.uk/index/ resources/evidence_reports/investigation_reports/the_stockwell_investigation/ summary_chronology.htm. 200  IPCC (n 190) para 5.5 states that the Home Office Immigration files have no record of him after 20 June 2003, although a footnote does acknowledge that the Health and Safety trial revealed that he was lawfully in the country on the date of his death. 201  IPCC (n 190) para 14.22 states that there was cocaine in de Menezes’ blood and that he may have been under the influence of the drug at the time of the incident. 202 See, eg British Foreign Secretary William Hague asserting that those who are ‘­lawabiding’ have nothing to fear from the security services, R Watts and R Winnett, ‘William Hague: British Public have “Nothing to Fear” from US Spies’ The Telegraph (9 June 2013) www. telegraph.co.uk/news/politics/10108564/William-Hague-British-public-have-nothing-tofear-from-US-spies.html. 203  ‘Open Verdict at Menezes Inquest’ BBC News (12 December 2008) news.bbc.co.uk/1/ hi/uk/7764882.stm. 204  IPCC (n 190) para 4.17. 195 

244  Lydia Davies-Bright places significant emphasis on the ‘atmosphere of fear’ in London following the 7/7 bombings.205 However, it is asserted that dismissing the event simply as an understandable mistake, and one that may well be repeated as the security forces struggle to keep the country safe,206 ignores the wider context of the securitisation of terrorism and the destruction of the individual as a unit that counts. In the context of increased police activity and the raising of the terrorist threat to ‘critical’ (meaning an attack was imminently expected), four bombs were found in London on 21 July 2005.207 In the command meeting held on 21 July 2005, the fear was expressed ‘that the individuals would re-gather the next morning and attempt to cause explosions and achieve their objectives’.208 This fear appears to be exactly that, a fear. Bombs had been found in London, but they had been abandoned. Assertions that the makers of the bombs were suicide bombers were not based on facts—a suicide bomber is, by definition, a person who intends to be/is killed by their bomb. These bombs were not attached to any person. In describing the planters of the bombs as ‘suicide bombers’209 the police officers in charge of the briefing arguably reinforced the idea that these persons were not persons who could be reasoned with—they were ‘deadly and determined’ killers.210 As such, the suspects were delegitimised as people and as individuals who deserve to be counted. Consequently, it is unsurprising that the individual officers involved, as in a classic utilitarian thought experiment scenario, felt that their only option was to kill the guilty individual in order to save the innocent many.211 The fact that de Menezes was being held by a fellow officer and pinned to his seat212 did not seem to be taken into consideration. The events took place in a climate of fear created by the political rhetoric surrounding terrorism that had been shaping reality since 9/11. The 7/7 London bombings then enabled world leaders to reinforce the narrative of fear, threat and danger from those wishing to destroy cherished values.213

205 

IPCC (n 190) para 4.6. Hughes, ‘Seven Mistakes that Cost De Menezes his Life’ The Independent (13 ­ December 2008) www.independent.co.uk/news/uk/crime/seven-mistakes-that-costde-menezes-his-life-1064466.html. 207  IPCC (n 190) paras 4.7–4.12. 208  IPCC (n 190) para 4.17. 209  IPCC (n 190) paras 11.2, 11.5 and 11.9. 210  IPCC (n 190) para 11.13. 211  IPCC (n 190) paras 13.7 and 13.12. 212  IPCC (n 190) para 13.4. 213  See, eg Tony Blair stating that ‘We will not allow violence to change our societies or our values.’ ‘Full Text G8 Leaders’ Statement’ The Guardian (7 July 2005) www.theguardian.com/ world/2005/jul/07/g8.july7. 206 M

Terrorism: A Threat to Security? 245 iv.  Osama bin Laden as One On 2 May 2011, US Navy Seals entered a compound in Abbottabad, ­Pakistan with the aim of neutralising Osama bin Laden (erstwhile head of al-Qaeda and suspected mastermind behind the events of 9/11).214 In the hours of darkness, a team of armed Seals entered the compound by helicopter and proceeded to raid the house. Several shots were fired and more than one person was killed. Osama bin Laden himself was shot in the head and chest, despite apparently not firing at the Seals or being given the opportunity to surrender.215 As with the killing of de Menezes, the initial briefings from officials contained inaccuracies and indicated aggression on the part of bin Laden towards the Seals.216 More than one option was considered in the period before the operation, including the use of a missile strike that would have obliterated the compound and neighbouring residences and a drone strike on the individual that they suspected was bin Laden. Apart from the unjustifiable civilian casualties, it seems that an important factor in deciding to conduct a raid was the possibility to confirm the kill and to gather other intelligence.217 In killing Osama bin Laden it appears that the US administration took a utilitarian approach, insofar as a judgement was made that the immediate benefits of removing the head of al-Qaeda outweighed the costs, including the net impact on future terrorist activity, the radicalisation of ­Muslims and a redrawing of the concept of ‘justice’.218 It may be contended that this form of cost-benefit calculation is more properly regarded as a form of political or public policy judgement as opposed to moral reasoning. However, it could be argued that the decision to base such a crucial decision on political considerations was in itself a moral decision219

214 Although not explicitly stated at the time, the operation was viewed by many as being a de facto kill mission. M Hosenball, ‘US Commandos Knew bin Laden Likely Would Die’ Reuters (2 May 2011) www.reuters.com/article/2011/05/02/us-binladen-killidUSTRE74151S20110502; M Allen, ‘Osama bin Laden Raid Yields Trove of Computer Data’ Politico (2 May 2011) www.politico.com/news/stories/0511/54151.html. 215  M Bowden, ‘The Death of Osama bin Laden: How the US Finally Got its Man’ The Guardian (12 October 2012) www.theguardian.com/world/2012/oct/12/death-osama-bin-laden-us. 216  D Walsh, ‘Osama bin Laden’s Last Hours Come into Focus as White House Revises its Story’ The Guardian (4 May 2011) www.theguardian.com/world/2011/may/03/ osama-bin-laden-death-raid. 217  Bowden (n 215). 218  US President Obama claimed that ‘justice has been done’ through the killing of bin Laden, even though bin Laden did not stand trial for terrorist crimes or his suspected involvement in 9/11. D Walsh, E MacAskill, and J Burke, ‘Osama bin Laden Killed in US raid on Pakistan Hideout’ The Guardian (2 May 2011) www.guardian.co.uk/world/2011/ may/02/osama-bin-laden-dead-pakistan. 219  In the sense that the moral implications of taking a human life were not brought into the discussion as Osama bin Laden was not considered to be deserving of the human rights and due process provisions in US, Pakistani and international law.

246  Lydia Davies-Bright and one that had not been properly thought through with regard to the wider implications of such a choice. The situation becomes more confused when it is asserted that ‘­justice’ has been done, which is in itself a moral assertion, in line with US ­values.220 Whilst it is not clear what notion of justice is being used to justify this assertion, it is not justice as it is usually understood, which encompasses due process, standards of fairness and transparency, innocence until proven guilty and no arbitrary taking of life.221 Such a moral assertion indicates that, at the highest level, the basic premise of human rights, that of equal and universal application and inviolability, is not taken to be ‘self-evident’.222 It was deemed appropriate to kill an unarmed man and to deny him his human rights because he was considered (although not proved) guilty of heinous acts.223 Such thinking about ‘known’ terrorists arguably leads to decisions being made on similar utilitarian grounds regarding ‘unknown’ terrorists, as seen above in the case of Jean Charles de Menezes. This may confirm in the minds of some that Muslims, or those with (or suspected of having) opposing political views, are considered the ‘other’ and are in possession of the ‘lower tier’ of human rights. VI. CONCLUSION

Today, terrorism is seen as constituting ‘one of the most serious threats to international peace and security’,224 aimed at destroying human rights, fundamental freedoms and democracy.225 Putting aside the fact that those concepts themselves lack a universally applicable definition,226 ‘terrorism cannot and should not be associated with any religion, nationality, civilization or ethnic group’227 and so cannot be credited with having a

220  ‘Today Programme’ BBC Radio Four (12 May 2011) reporting US Attorney General Eric Holder’s comments. 221  F Francioni, ‘The Rights of Access to Justice Under Customary International Law’ in F Francioni (ed), Access to Justice as a Human Right (Oxford, Oxford University Press, 2007); Articles 6, 7, 9, 10, 14, 16 ICCPR 222  UDHR Preamble. 223  The US has recently argued that the targeting of bin Laden was legitimate as he was a military target. The question as to whether or not the US is at war following 9/11 centres on the classification of the event as an armed attack and is a moot point and not within the purview of this chapter. See, SD Murphy, ‘Terrorism and the Concept of “Armed Attack” in Article 51 of the UN Charter’ (2002) 43 Harvard International Law Journal 41; Cf Cassese (n 32). However, persons in the theatre of war still have human rights and the killing of a person posing no immediate threat and when capture is possible is also problematic under IHL principles. 224  UN Global Counter-Terrorism Strategy (n 79). 225  UN Global Counter-Terrorism Strategy (n 79). 226  Buzan, Wæver and De Wilde (n 73). 227  UN Global Counter-Terrorism Strategy (n 79).

Terrorism: A Threat to Security? 247 single, unifying aim, especially as acts labelled as being terrorist are conducted by disparate, unassociated groups. Such a broad definition of ­terrorism ­arguably undermines human rights, fundamental freedoms and ­democracy228 as it excludes states and places political opposition outside of the legitimate sphere by allowing governments to legitimately label opposition groups as terrorist. The enshrining in law of the concept that each individual human being is possessed of dignity was a response to the atrocities of World War II—a bloody example of what can happen when people are no longer seen as people and when a political agenda is prioritised over respecting individual human rights. By denying political alternatives to Western style democracy and by delegitimising any debate on the issue, states and international organisations create and exacerbate the situation of insecurity that they are reacting to. This definition blurs the line between the motivation and the act. A group may carry out a criminal act (such as setting off a bomb) in pursuit of a legitimate aim (such as the human rights of a particular group), but under this definition, the legitimate ideological pursuit is ignored as the act has already been assigned with a motivation. This chapter has demonstrated how the promise of the inviolability of the innate human dignity of each human person, of human rights as a universal principle, made in 1948 has been subverted in favour of a more utilitarian approach, albeit mixed (inconsistently) with deontological elements. The UNC, with its discretionary security order, preceded the human rights instruments and allows for the individual to be subordinated to state security concerns. As demonstrated through the example of Lockerbie, international political power and influence enables certain actors to circumvent previously agreed legal mechanisms in pursuit of their own ends. The killings of Jean Charles de Menezes and Osama bin Laden illustrate how concepts of the rule of law and due process are indeed seen to be ideals, indulgences for a more utopian time, rather than concrete principles to govern the behaviour and reach of executive power. The security imperative of the state and those who wield its power subordinates all other principles and values, including the inherent dignity of each human being that each person has simply by virtue of being human. The imagined community of the state has become more powerful than the reality of the individual. This asymmetry is a result of the questionable idea that an individual is capable of posing an existential threat to a state. However, as the extra-judicial killings of de Menezes and bin Laden illustrate, the state poses a far greater existential threat to the individual.

228  Democracy defined in the broadest sense of being a political system chosen by the people of a particular state or territory.

248

10 Abusive Governments as a Threat JURE VIDMAR*

I. INTRODUCTION

T

RADITIONALLY, THE REPRESENTATIVE legitimacy of a ­government in international law was a matter of effective control over a certain territory.1 This doctrine seems to be changing. In the post-Cold War period, some writers have argued that governmental legitimacy in contemporary international law originates in democratic elections.2 While the pro-democratic bias in international law is not universally endorsed, a practice of collective responses has developed that denies legitimacy to governments that are seen as being abusive of their people. Most recently, the shifting doctrine on governmental legitimacy came to the forefront in Security Council resolutions 1970 and 1973 on Libya.3 However, was Libya really a turning-point or rather a continuation of an already-developing doctrine? Although the legal consequences of ­governmental abusiveness have varied, the concept seems to have been the motivation behind international responses to the situations of ­Afghanistan,4 East Timor,5 Haiti,6 Kosovo7 and Sierra Leone.8 In these

* This chapter was completed in November 2013 and does not include events after that date. 1  J Crawford, The Creation of States in International Law, 2nd edn (Oxford, Oxford University Press, 2006) 56. 2  See, eg, T Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46; AM Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503; F Teson, ‘The Kantian Theory of International Law’ (1992) 92 Columbia Law Review 53. 3 See UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970 and UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973. 4 UNSC Res 1363 (15 October 1999) UN Doc S/RES/1363 and UNSC Res 1378 (14 ­November 2001) UN Doc S/RES/1378. 5 UNSC Res 1264 (15 September 1999) UN Doc S/RES/1264 and UNSC Res 1272 (25 ­October 1999) UN Doc S/RES/1272. 6  UNSC Res 940 (31 July 1994) UN Doc S/RES/940. 7  UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244. 8  UNSC Res 1132 (8 October 1997) UN Doc S/RES/1132.

250  Jure Vidmar s­ituations, the Security Council, acting under Chapter VII of the UN ­Charter, established the existence of a threat to international peace and security, despite the situations often seeming to be of a domestic, rather than international, nature. The Security Council has thus called for a change of governing authority and has even used its binding powers in two cases to create legal regimes of international territorial administration on the basis of governments being abusive towards their own people.9 This clearly indicates that governmental abusiveness is considered to be a threat to international peace and security, even in the absence of the threat or use of force in international relations. This contribution considers the collective practice of denying international legitimacy to governments that are abusing their governing powers. In so doing, the contribution questions which factors underlie governmental abusiveness and analyses how internal situations of governmental abusiveness started to constitute threats to international peace and security. However, the chapter also affirms that governments do not lose their legitimacy simply by not adopting a certain political system. The practice may rather suggest that coup governments will be seen as being illegitimate where they overthrow democratically-elected ones. Moreover, by abusing their people, governments do not automatically lose their representative authority. Rather, collective action is needed, either through the Security Council or, as recent developments demonstrate, through the ‘old fashioned’ instrument of recognition of governments. II.  COLLECTIVE RESPONSES TO GOVERNMENTAL ABUSIVENESS

Governments speak and act on behalf of states and therefore it needs to be clear which authority has the right to do so. The representative legitimacy in principle stems from effective control over the territory. However, there are some limitations to this doctrine. This chapter analyses the collective practice of denying legitimacy to governments and demonstrates that abuses of sovereign power can strip a government of its legitimacy to represent the people and the state it claims to represent. This does not ­happen automatically, but through collective action. Moreover, even ­abusive governments tend to lose representative legitimacy only in combination with at least partial loss of effective control. A.  Governments, Legitimacy and Effective Control The significance of the effective control test was demonstrated by the ­General Assembly when dealing with the competing claims of the People’s 9 

See (n 5) and (n 7).

Abusive Governments as a Threat 251 Republic of China and of the Taiwan-based Republic of China to speak on behalf of China.10 The Taiwan-based authority initially represented China in the UN.11 In 1971, however, the General Assembly adopted Resolution 275812 which recognised: ‘[T]he representatives of [the Government of the People’s Republic of China] as the only legitimate representatives of China.’13 Upon this proclamation, the General Assembly expelled ‘the representatives of [Taiwan] from the place which they unlawfully [occupied] at the United Nations and in all the organizations related to it.’14 The Taiwan-based Government of the Republic of China could not be the legitimate government of China as it was in effective control of only a fraction of the Chinese territory. In establishing governmental legitimacy, no regard was paid to the type or nature of the Chinese government. The fact that governmental legitimacy does not depend on a particular political system or governing method was later confirmed by the International Court of Justice (ICJ) in the Nicaragua case: [A]dherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State … The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.15

Despite this general position, a collective practice started to develop of denying legitimacy to some effective governments that abuse their ­people. Such practice may be seen as a deviation from the rule of effectiveness, but its implications should not be overstretched. In the process of decolonisation, the standard developed that a government needs to enjoy the support of the will of the people in order to act on behalf of the territory that is being decolonised. In 1965, the racist white minority government of Southern Rhodesia issued a declaration of independence.16 Prior to that, both the General Assembly and the Security Council adopted a set of resolutions in which the white minority government was declared to lack the representative authority to act on behalf of

10 

Crawford (n 1) 200.

11 ibid. 12 

UNGA Res 2758 (XXVI) (25 October 1971) UN Doc A/RES/2758. ibid para 4. 14 ibid. 15  Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) (Merits) (Judgment) [1986] ICJ Rep 14, 132 para 263 [hereinafter the Nicaragua case]. 16  J Dugard, Recognition and the United Nations (Cambridge, Grotius Publications, 1987) 90. 13 

252  Jure Vidmar the population of Southern Rhodesia.17 The Security Council called on the United Kingdom not to decolonise Southern Rhodesia and on other states to withhold recognition.18 After the declaration of independence, UN organs continued the ­initiative for collective non-recognition19 and all states, including apartheid South Africa, complied with the resolutions.20 Subsequently, in 1970, Southern Rhodesia declared itself a republic, to which the Security ­Council responded by Resolution 277, adopted under Chapter VII of the UN ­Charter, in which it called ‘that Member States shall refrain from recognizing this illegal regime or from rendering assistance to it’.21 The international legal response to Southern Rhodesia invokes several complex issues of international law.22 For the purposes of this contribution it is important to recall that although in effective control of the territory, the legitimacy of the white minority government to act on behalf of Southern Rhodesia was denied internationally. Effectiveness was therefore limited by human rights considerations, in particular, the right of selfdetermination and the prohibition of racial discrimination. It is also significant that in 1970 the Security Council acted under ­Chapter VII of the UN Charter which is concerned with measures ‘to maintain or restore international peace and security.’23 The Security Council’s response proves that no classical trans-boundary element is necessary to trigger the phrase ‘international peace and security’ and the resulting consequences under Chapter VII. A breach of international peace and security can follow from the actions of a government against its own people and within the territory under its effective control. Southern Rhodesia was a complex situation because it was also an entity that was trying to emerge as a state and the international responses to it were influenced by the law of statehood.24 Apartheid South Africa, however, doubtlessly existed as a state, but UN organs challenged the legitimacy of its government, which was otherwise in effective control of the state. Security Council Resolution 417 expressed grave concern ‘over reports of torture of political prisoners and the deaths of a number of detainees, as well as the mounting wave of repression against

17 See UNGA Res 1747 (XVI) (27 June 1962); UNSC Res 202 (6 May 1965) UN Doc S/RES/202; UNGA Res 2022 (XX) (5 November 1965). 18  See UNSC Res 202 (n 17) paras 3, 4 and 5. 19  See UNGA Res 2024 (XX) (11 November 1965); UNSC Res 216 (12 November 1965) UN Doc S/RES/216; UNSC Res 217 (20 November 1965) UN Doc S/RES/217. 20  Dugard (n 16) 91. 21  UNSC Res 277 (18 March 1970) UN Doc S/RES/277 para 2. 22  For more see Dugard (n 16) 90. 23  UN Charter (1945) Art 39. 24  See Dugard (n 16) 90.

Abusive Governments as a Threat 253 i­ndividuals, organizations and the news media’,25 reaffirmed ‘its recognition of the legitimacy of the struggle of the South African people for the elimination of apartheid and racial discrimination’,26 and affirmed ‘the right to the exercise of self-determination by all the people of South Africa as a whole, irrespective of race, creed or colour’.27 The Resolution further condemned ‘the South African racist regime for its resort to massive violence and repression against the black people, who constitute the great majority of the country, as well as all other opponents of apartheid’,28 and expressed ‘its support for, and solidarity with, all those struggling for the elimination of apartheid and racial discrimination and all victims of violence and repression by the South African racist regime.’29 Thus, the Security Council clearly confirmed the view that effectiveness is not the only criterion that legitimises a government. Certain abuses of human rights can strip a government of its representative legitimacy and can constitute threats to international peace and security in the sense of Chapter VII of the UN Charter. The 1986 proclamation of the ICJ in the Nicaragua case, therefore, needs to be qualified along the following lines: governmental legitimacy does not depend on a particular political system or electoral method, but it does prohibit apartheid. In subsequent practice, the notion of abusive governments has been extended further and governments may, under some circumstances, also lose their legitimacy for violations of some other human rights. Furthermore, to some extent the political organisation of the state has started to matter. B.  International Response to Coup Governments In 1994, acting under Chapter VII of the UN Charter, the Security Council adopted Resolution 940, which authorised the use of force for the return of the overthrown democratically-elected government of President JeanBertrande Aristide.30 The Resolution reaffirmed [T]hat the goal of the international community remains the restoration of ­democracy in Haiti and the prompt return of the legitimately elected President, Jean-Bertrande Aristide … [and] authorize[d] Member States to form a multinational force … to use all necessary means to facilitate the departure from Haiti of

25 

UNSC Res 417 (31 October 1977) UN Doc S/RES/417 preamble para 3. ibid preamble para 5 (italics in original). 27  ibid preamble para 6. 28  ibid para 1 (italics in original). 29  ibid para 2 (italics in original). 30  See generally R Falk, ‘The Haiti Intervention: A Dangerous World Order Precedent for the United Nations’ (1995) 36 Harvard International Law Journal 341. 26 

254  Jure Vidmar the military leadership … the prompt return of the legitimately elected President and the restoration of the legitimate authorities of the Government of Haiti.31

The Security Council thus acted under Chapter VII of the UN Charter, although it is generally perceived that, strictly speaking, no breach of, or threat to, international peace existed as the coup was evidently an outcome of domestic political developments.32 However, in the UN ­Charter era human rights are protected internationally and are no longer a mere domestic issue of every state. Gross and systematic human rights violations within one state’s confines may also be seen as breaches of, or threats to, international peace. It needs to be noted, though, that this pro-democratic­intervention was not authorised by the Security Council against a firmly-established (effective) non-democratic government, but rather against a coup government that had overthrown the government elected in the process running under UN auspices. The standard of denial of legitimacy to coup governments where they overthrow democratically elected ones was confirmed in the subsequent practice of the Security Council. In response to the coup in Sierra Leone, the Security Council, acting under Chapter VII, demanded that ‘the military junta take immediate steps to relinquish power in Sierra Leone and make way for the restoration of the democratically-elected Government and a return to constitutional order.’33 The collective responses to coups against democratic governments are another step away from the doctrine of effectiveness. An authority ­cannot usurp power by extra-constitutional means against a democraticallyelected government. However, this does not mean that a non-elected effective government is automatically deemed to be illegitimate or that the Security Council would, in such situations, always identify a threat to international peace and security. Notably, however, the Security ­Council has also used its Chapter VII powers to deny legitimacy to governments even where they did not come to power in a (recent) coup. In such circumstances, international legitimacy is denied on the basis of human rights abuses rather than a general lack of democratic (electoral) practices. ­Furthermore, it appears that denial of governmental legitimacy in such situations still cannot be entirely divorced from the test of effectiveness.

31 

UNSC Res 940 (n 6). See Falk (n 30) 342. 33  UNSC Res 1132 (n 8) para 1. 32 

Abusive Governments as a Threat 255 C.  Collective Denial of Legitimacy to an Incumbent Government Addressing the situation in Afghanistan, the Security Council adopted Resolution 1267 under Chapter VII of the UN Charter, in which it declared [T]hat the Afghan faction known as the Taliban, which also calls itself the Islamic Emirate of Afghanistan, comply promptly with its previous resolutions and in particular cease the provision of sanctuary and training for international terrorists and their organizations, take appropriate effective measures to ensure that the territory under its control is not used for terrorist installations and camps, or for the preparation or organization of terrorist acts against other States or their citizens, and cooperate with efforts to bring indicted terrorists to justice.34

The Security Council carefully avoided the use of the term ‘the government of Afghanistan’ and thereby implied that it did not see the Taliban government as the legitimate authority of Afghanistan. The Security Council also invoked obligations of ‘the Taliban, as well as other Afghan factions’,35 which implies that the Taliban government did not exercise an effective control over the territory of Afghanistan. This also follows in subsequent resolutions where the Security Council stated that the Taliban were obliged to comply with duties imposed by international law, whilst still avoiding using the term ‘the government of Afghanistan’. Instead, terms such as ‘the Afghan faction known as the Taliban’,36 ‘the Taliban authorities’37 and ‘the territory of Afghanistan under Taliban control’38 were used, or it was demanded that ‘the Taliban [rather than ‘the government of Afghanistan’] comply’39 with previous resolutions. These pronouncements of the Security Council indicate that the denied legitimacy of the Taliban government was partly rooted in the lack of ­effective control over the entire territory of Afghanistan. However, this was not the main circumstance that triggered the Security Council’s action. Indeed, Resolution 1378 condemned ‘the Taliban for allowing Afghanistan to be used as a base for the export of terrorism by the Al-Qaida network and other terrorist groups’;40 expressed concern about ‘serious violations by the Taliban of human rights and international humanitarian law’;41 and further gave its strong support for the efforts of the Afghan people to establish a new and transitional administration leading to the formation of a government, both of

34 

UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267 para 1. See UNSC Res 1214 (8 December 1998) UN Doc S/RES/1214 para 1. 36  See UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267 para 1. 37  See UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333 preamble. 38  See UNSC Res 1363 (30 July 2001) UN Doc S/RES/1363 para 3(b). 39  See UNSC Res 1333 (n 37) paras 1 and 2. 40  UNSC Res 1378 (n 4) preamble. 41 ibid. 35 

256  Jure Vidmar which: should be broad-based, multi-ethnic and fully representative of all the Afghan people and committed to peace with Afghanistan’s neighbours; should respect the human rights of all Afghan people, regardless of gender, ethnicity or religion; [and] should respect Afghanistan’s international obligations.42

The Security Council thus denied the legitimacy of the Taliban government in Afghanistan, based on its grave human rights violations and threats to international peace, and expressed its support for a change of government. The Security Council’s measures against the Taliban authorities in Afghanistan should not be understood as pro-democratic activism. Chapter VII of the UN Charter was used to address serious breaches of internationally protected human rights and involvement in international terrorism. The Security Council’s response to the Taliban government of ­Afghanistan was a combination of international threats to peace and security (international terrorism), domestic factors (gross and systematic human rights abuses) and a lack of effectiveness in the entire territory. It is notable, however, that the Security Council openly supported the change of the government and did so, inter alia, on the basis of its past abusive internal behaviour. In the situation of Libya, the Security Council also acted under ­Chapter VII, although the situation lacked a traditional trans-boundary element. Resolutions 1970 and 1973 identified the existence of a threat to international peace and, in order to protect civilians, authorised the use of all necessary means. This can be interpreted as a deliberate ambiguity that authorises the use of force.43 At the same time, the Security Council excluded ‘a foreign occupation force of any form on any part of Libyan territory’.44 The Resolutions are not concerned with the choice of a particular political system or electoral method. Resolution 1970 urged the Libyan authorities to ‘Act with the utmost restraint, respect human rights and international humanitarian law, and allow immediate access for international human rights monitors.’45 Resolution 1973 condemned ‘the gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and summary executions’.46 Unlike the relevant resolutions on Afghanistan, the resolutions on Libya did not explicitly deny legitimacy of the sitting government or called for a regime change, not even when the National Transitional Council

42 

ibid para 1. C Henderson, ‘International Measures for the Protection of Civilians in Libya and Cote D’Ivoire’ (2011) 60 International & Comparative Law Quarterly 767, 770–71. 44  UNSC Res 1973 (n 3) para 4. 45  UNSC Res 1970 (n 3) para 2(a). 46  UNSC Res 1973 (n 3) preamble para 4. 43  See

Abusive Governments as a Threat 257 (NTC) was already in control of large parts of Libyan territory. While the ­language used in the resolutions on Afghanistan clearly denied legitimacy of the Taliban government, the resolutions on Libya referred to the Gaddafi government as ‘the Libyan authorities’.47 The authorisation of the use of force was limited to the protection of the civilian population.48 Nevertheless, the change of government in Libya was not only a domestic but an internationalised effort.49 It is debatable whether the international support for the NTC overstepped the Security Council’s mandate.50 It is notable, however, that the Security Council once again interpreted an internal situation as a threat to international peace and security. Such a threat was determined by a grave humanitarian situation and gross and systematic abuse of human rights. Apart from the collective action taken through the Security Council, international action against Libya also saw the return of the obsolete concept of the recognition of governments. While international practice has virtually universally shifted to the so-called Estrada Doctrine of no explicit recognitions,51 in the example of Libya a number of states—including the United Kingdom—departed from this practice and explicitly granted recognition to the NTC.52 The recognising states clearly expressed preferences to one of the competing authorities and their decisions were rooted in human rights considerations and in the grave humanitarian situation. Indeed, for many states the Gaddafi government lost its legitimacy by escalating the abuse against its own people. Nevertheless, it needs to be noted that recognition of the competing authority did not come before the NTC managed to establish a degree of control over parts of the Libyan territory. In other words, governmental

47 ibid. 48 

See Henderson (n 43) 772. generally M Payandeh, ‘The United Nations, Military Intervention, and Regime Change in Libya’ (2012) 55 Virginia Journal of International Law 355. 50 ibid. 51  This doctrine is named after the Mexican minister of foreign affairs Genaro Estrada who, in 1930, made a proclamation on behalf of Mexico that its government in the future shall issue ‘no declaration in the sense of grants of recognition, since [Mexico] considers that such a course is an insulting practice and one which, in addition to the facts that it offends sovereignty of other nations, implies that judgment of some sort may be passed upon the internal affairs of those nations by other governments, inasmuch as the latter assume, in effect, an attitude of criticism when they decide, favourably or unfavourably, as to the legal qualifications of foreign regimes’. Estrada Doctrine (1930) reprinted in B Roth, Governmental Illegitimacy in International Law (Oxford, Oxford University Press, 1999) 137–38. 52  See D Akande, ‘Recognition of Libyan National Transitional Council as Government of Libya’, EJIL Talk! (23 July 2011) www.ejiltalk.org/recognition-of-libyan-national-transitionalcouncil-as-government-of-libya. See also S Talmon, ‘Recognition of the Libyan National Transitional Council’, ASIL Insights (16 June 2011) www.asil.org/insights/volume/15/ issue/16/recognition-libyan-national-transitional-council. 49  See

258  Jure Vidmar legitimacy was not denied to a firmly established and entirely effective government. It was rather that the international community progressively shifted towards one of the competing authorities, neither of whom was in effective control over the entire territory of Libya. Attempts were also made to link Gaddafi’s governmental illegitimacy with democracy. When the United Kingdom recognised the NTC as the only legitimate government of Libya, UK Foreign Secretary William Hague stated that this recognition would contribute towards a ‘more open and democratic Libya … in stark contrast to Gaddafi whose brutality against the Libyan people has stripped him of all legitimacy’.53 This reference to democracy should not be interpreted too broadly; it is merely political and does not legally oblige Libya to enact a particular political system. When the legitimacy of the Gaddafi government was first challenged by the Security Council, the challenge did not come on the basis of nondemocratic­procedures, but rather on the basis of gross and systematic human rights abuses and a grave humanitarian situation.54 Furthermore, even in this case, the international support for the NTC did not come before this authority established effective control over a part of the territory of Libya. In regards to Syria, the human rights abuses and grave humanitarian situation led to a draft Security Council resolution.55 The draft went much further than the resolution on Libya and explicitly called for a change of government. The draft calls for a transition ‘to a democratic, plural political system’56 and for the formation of a national unity government.57 The draft did not define the meaning of a democratic, plural political system and neither did it challenge the legitimacy of the government of Syria on the basis of democracy. For this purpose, it rather invoked human rights and humanitarian grounds, but it nevertheless reflects the view that respect for human rights can only be achieved upon a change of government and in a democratic setting. If it had been adopted, the resolution would have been rather farreaching­. Yet it was subject to a double veto (China and Russia).58 This indicates that the universal perception of governmental legitimacy has

53  See ‘UK Expels Gaddafi Diplomats and Recognises Libya Rebels’, BBC News (27 July 2011) www.bbc.co.uk/news/uk-politics-14306544. 54  cf (n 46). 55  See Draft of Security Council Resolution on Syria, New York Times (31 January 2012) www.nytimes.com/2012/02/01/world/middleeast/draft-of-security-council-resolutionon-syria.html?_r=0. 56  ibid para 7. 57 ibid. 58  See ‘Russia and China Veto Resolution on Syria at UN’, BBC News (4 February 2012) www.bbc.co.uk/news/world-16890107.

Abusive Governments as a Threat 259 not entirely shifted away from the requirement of effective control over a ­territory. As Stefan Talmon argued in the context of the Gaddafi regime in Libya, ‘Even gross and systematic violations of human rights by a government … do not automatically lead to its loss of status as a government in international law or make it any less a government than it would otherwise be.’59 With regard to Syria, this means that in the absence of Security Council action or collective de-recognition of the Syrian government, and despite gross and systematic human rights violations, the Assad government remains the government of Syria. Subsequently, the Security Council adopted a set of legally non-binding resolutions on the situation in the Middle East, in which Syria featured prominently.60 The resolutions called for reaching and implementation of a political solution to the conflict.61 Specific references are made to the ­Syrian government and the opposition,62 thus leaving no doubt that, despite the grave humanitarian situation and gross violations of human rights, the incumbent government still enjoys international legitimacy to speak on behalf of Syria. In the preamble, Resolution 2042 also reaffirms ‘its strong commitment to the sovereignty, independence, unity and territorial integrity of Syria, and to the purposes and principles of the ­Charter’.63 This is a clear indication that the outcome of the internal struggle in Syria needs to be determined in a domestic process. These otherwise non-legally-binding resolutions do not make any provisions for a change of the governing authority and continue to regard the Assad government as the legitimate government of Syria. However, nothing in the resolutions implies that overthrowing the government by extra-constitutional means would not be allowed, they only determine that such an outcome would need to result from domestic processes. This is different from the above-discussed resolutions on Sierra Leone and Haiti, in which the extra-constitutional changes of the governments were internationally condemned. However, in these two situations democratically elected governments were overthrown, whereas the current government in Syria lacks democratic legitimacy. Another aspect of the international responses to the situation in Syria is the ‘recognition’ of some states, including the United Kingdom, of

59  S Talmon, ‘De-Recognition of Colonel Qaddafi as Head of State of Libya?’ 60 (2011) International & Comparative Law Quarterly 759, 765 (italics added). 60  UNSC Res 2042 (14 April 2012) UN Doc S/RES/2042; UNSC Res 2043 (21 April 2012) UN Doc S/RES/2043; UNSC Res 2051 (12 June 2012) UN Doc S/RES/2051. 61  UNSC Res 2042 (n 60) para 1; UNSC Res 2043 (n 60) para 1; UNSC Res 2051 (n 60) para 1. 62  UNSC Res 2042 (n 60) para 1; UNSC Res 2043 (n 60) para 1; UNSC Res 2052 para 1 (27 June 2012) UN Doc S/RES/2052. 63  UNSC Res 2042 (n 60) para 2 and 4; UNSC Res 2043 (n 60) paras 2, 3 and 4.

260  Jure Vidmar the ­Syrian opposition as the legitimate representatives of the people of Syria.64 However, this ‘recognition’ is not recognition of a government and is not comparable to recognition of the NTC as the Government of Libya.65 The somewhat unusual ‘recognition’ of the Syrian opposition as the legitimate representative of the people of Syria may be seen as a legitimisation of its struggle against the incumbent government. However, the fact that the ‘recognising’ states did not also recognise the opposition as the legitimate government of Syria affirms the continued importance of effective territorial control. Indeed, if foreign states otherwise recognise the representative legitimacy of a competing authority but do not recognise this authority as the government of Syria, this indicates that they would prefer to recognise the competing authority as the government, but cannot do so because the incumbent government can still demonstrate a sufficient degree of effective control over the territory. Contemporary practice therefore demonstrates that effective control remains an important consideration, even where the government is abusing its sovereign powers. Such a government may lose its representative legitimacy, but the international community will continue to recognise it as a government as long as it can still demonstrate a sufficient degree of effective control over the territory. However, once the competing authority is able to demonstrate a degree of effectiveness, foreign states and UN organs have demonstrated a willingness to support a regime change. III.  INTERNATIONAL PEACE AND SECURITY AND TERRITORIAL ADMINISTRATION

The previous section dealt with situations where an authority tries to ­overthrow an incumbent government but the identity of the state remains the same. This section turns to the examples of East Timor and Kosovo where the Security Council used its binding powers to address governmental abuse by the creation of international territorial administrations. Identifying a threat to international peace and security, the Security ­Council thus severed the territories from their parent states. This legal arrangement ultimately led to declarations of independence.

64 See ‘Syria Conflict: UK Recognises Opposition, says William Hague’, BBC News (20 November 2012) www.bbc.co.uk/news/uk-politics-20406562. 65 See D Akande, ‘Self Determination and the Syrian Conflict—Recognition of Syrian Opposition as Sole Legitimate Representative of the Syrian People: What Does this Mean and What Implications Does it Have?’, EJIL Talk! (6 December 2012) www.ejiltalk.org/selfdetermination-and-the-syrian-conflict-recognition-of-syrian-opposition-as-sole-legitimaterepresentative-of-the-syrian-people-what-does-this-mean-and-what-implications-does-ithave/.

Abusive Governments as a Threat 261 A.  East Timor East Timor was a Portuguese colony which was unlawfully taken over by Indonesia.66 Although it formally remained on the list of nonself-governing­territories, it was effectively governed by Indonesia. The real issue was independence from Indonesia, not Portugal, and therefore, its independence was not a matter of decolonisation. In 1999, Indonesia agreed to a referendum on the future status of the territory. At the referendum, which was supervised by the UN mission,67 the people of East Timor rejected an autonomy arrangement within Indonesia and set the course towards independence. The result led to an outbreak of violence.68 In response, the Security Council adopted the Chapter VII Resolution 1264, in which it expressed ‘its concern at reports indicating that systematic, widespread and flagrant violations of international humanitarian and human rights law have been committed in East Timor’.69 In the absence of a classical trans-boundary element, the Security Council thus associated a threat to international peace and security with violations of internationally guaranteed human rights and humanitarian law, albeit that these violations took place in a domestic setting. The Resolution then established a separate legal regime for East Timor and severed it from Indonesia. This was not yet independence, but international territorial administration. In creating this legal arrangement, the Security Council also enacted a number of institutional arrangements in order to prevent further abuses of human rights. Resolution 1264 thus established ‘a multinational force under a unified command structure’.70 In the subsequent, also Chapter VII, Resolution 1272, the Security Council established ‘a United Nations Transitional Administration in East Timor (UNTAET) … endowed [it] with overall responsibility for the administration of East Timor and … empowered [it] to exercise all legislative and executive authority, including the administration of justice.’71 Resolution 1272 in its preamble also reaffirmed ‘respect for the sovereignty and territorial integrity of Indonesia’.72

66 See generally B Singh, East Timor, Indonesia and the World: Myths and Realities (­Singapore Institute of International Affairs, 1995); H Krieger and D Rauschning, East Timor and the International Community: Basic Documents (Cambridge, Cambridge University Press, 1997); J Taylor, East Timor: The Price of Freedom (London, Zed Books, 1999); P Hainsworth and S McCloskey (eds), The East Timor Question: The Struggle for Independence from Indonesia (­London, IB Tauris, 2000); I Martin, Self-determination in East Timor: The United Nations, the Ballot, and International Intervention (Boulder, Lynne Rienner Publishers, 2001). 67  See UNSC Res 1236 (7 May 1999) UN Doc S/RES/1236 especially paras 4, 8, 9. 68 ibid. 69  UNSC Res 1264 (n 5) preamble. 70  UNSC Res 1264 (n 5) para 3. 71  UNSC Res 1272 (n 5) para 1. 72  UNSC Res 1272 (n 5) para 12.

262  Jure Vidmar Prior to the internationalised transition of East Timor toward independence and transfer of power from international territorial administration to organs of the East Timorese state, the international administrative authority supervised the creation of democratic institutions.73 Under UN auspices, elections were held on 30 August 2001 and 91.3 per cent of all persons eligible to vote did so.74 On 15 September 2001, the Special Representative of the United Nations Secretary General ‘swore in the 88 members of the Constituent Assembly’.75 On 20 September 2001, the Special Representative appointed a second transitional government, the members of which were all East Timorese and the composition of the government reflected the outcome of the elections to the assembly.76 The UN SecretaryGeneral noted that this was ‘the first time that the executive government [was] controlled by East Timorese, albeit under the overall authority of [the UN Secretary-General’s] Special Representative’.77 On 28 November 2001, the Constituent Assembly adopted a resolution in which it expressed support for direct presidential elections.78 The Special Representative of the UN Secretary General79 determined that the presidential elections would take place on 14 April 2002.80 On 22 March 2002, the text of the new Constitution was signed by members of the East Timorese political elite, religious leaders and representatives of the civil society.81 It was determined that the Constitution would enter into force on 20 May 2002, which was the day foreseen for the proclamation of independence.82 East Timor’s course to independence was confirmed in Security ­Council Resolution 1338, adopted on 31 January 2001.83 This Resolution was not adopted under Chapter VII of the UN Charter, but it was nevertheless an affirmation of the completion of the i­nternationalised

73  ‘United Nations Transitional Administration in East Timor (interim report)’ UN Doc S/2001/436 (2 May 2001) paras 2–7; ‘United Nations Transitional Administration in East Timor’ UN Doc S/2001/983 (18 October 2001) paras 4–8. 74  UN Doc S/2001/983 (n 73) para 5. 75  UN Doc S/2001/983 (n 73). 76  UN Doc S/2001/983 (n 73) para 7. 77  UN Doc S/2001/983 (n 73). 78  ‘United Nations Transitional Administration in East Timor’ (from 16 October 2001 to 18 January 2002) UN Doc S/2002/80 (17 January 2002) para 7. 79  The position of the Special Representative drew its legitimacy from UNSC Res 1272 (n 5) in which the Security Council ‘Welcome[d] the intention of the Secretary-General to appoint a Special Representative who, as the Transitional Administrator, will be responsible for all aspects of the United Nations work in East Timor and will have the power to enact new laws and regulations and to amend, suspend or repeal existing ones.’ para 6. 80 UNSC Res 1272 (n 5). See also ‘United Nations Transitional Administration in East Timor’ UN Doc S/2002/432 (17 April 2002) para 7. 81  UN Doc S/2002/432 para 4. 82  ibid paras 2 and 4. 83  UNSC Res 1338 (31 January 2001) UN Doc S/RES/1338.

Abusive Governments as a Threat 263 process that resulted in the emergence of a new state. East Timor declared independence on 20 May 200284 and was admitted to the UN on 27 September 2002.85 The Constitution of East Timor makes a number of specific references to a democratic political order. Section 1 of the Constitution provides that ‘The Democratic Republic of East Timor is a democratic, sovereign, independent and unitary State based on the rule of law, the will of the people and the respect for the dignity of the human person.’86 Section 6(c) ­provides that one of the fundamental objectives is ‘To defend and guarantee political democracy and participation of the people in the resolution of national problems.’87 Besides these general references to democracy, a number of other operative articles enact specific provisions that leave no doubt that the electoral process in East Timor is organised along ­democratic lines and in a multiparty setting. Section 7 expressly enacts universal suffrage and a multiparty political system,88 sections 46 and 47, respectively, deal with the right to political participation and with the right to vote, within the elaboration of which a multiparty political system is expressly demanded,89 and section 70 deals specifically with political parties and the ‘right of opposition’.90 The Constitution specifically regulates elections to Parliament91 and of the President.92 The political system, which was designed in East Timor under UN auspices, is organised along democratic lines. The international territorial administration thus not only guided East Timor towards ­independence, but also through the process of democratic transition and the building of democratic institutions.93 In order to address abuses of Indonesia’s sovereign power in East Timor, the Security Council used its Chapter VII powers to create a regime

84  See ‘East Timor: Birth of a Nation’, BBC News (19 May 2002) news.bbc.co.uk/2/hi/asiapacific/1996673.stm. 85  UNGA Res 57/3 (27 September 2002) UN Doc A/RES/57/3. 86  Constitution of the Democratic Republic of East Timor (2002) Section 1(1). 87  ibid Section 6(c). 88  ibid Section 7. 89  ibid Sections 46 and 47. 90  ibid Section 70. 91  ibid Section 93(1). 92  ibid Section 76(1). 93  cf J d’Aspremont, ‘Post-Conflict Administrations as Democracy-Building Instruments’ (2008) 9 Chicago Journal of International Law 1. Scepticism towards such an imposition was, however, expressed by East Timor’s first President, Xanana Gusmao, in the following words: ‘We are witnessing … an obsessive acculturation to standards that hundreds of international experts try to convey … we absorb [these] standards just to pretend we look like a democratic society and please our masters of independence. What concerns me is the noncritical absorption of [such] standards given the current stage of the historic process we are building.’ Quoted in C Foley, The Thin Blue Line: How Humanitarianism Went to War (London, Verso, 2008) 141.

264  Jure Vidmar of international territorial administration and severed East Timor from Indonesia. Notably, under UN auspices, East Timor adopted a democratic institutional design. This reflects the view that democratic institutions legitimise a governing authority.94 However, this conclusion should not be overstretched. The limits on democratic legitimacy will be considered in the final section. Furthermore, the Security Council responded with a Chapter VII resolution because of gross and systematic human rights abuses and not because of a general lack of democratic practices. B. Kosovo Kosovo was a part of Serbia, predominantly settled by ethnic Albanians.95 In the second part of the 1980s, Serbia extra-constitutionally suspended Kosovo’s autonomy within Yugoslavia.96 This led to more than a decade of oppression and hostilities. In 1999, a group of NATO Member States intervened using the language of humanitarian intervention. The intervention did not have Security Council authorisation and the use of force was thus illegal.97 After the intervention, the Security Council used its binding powers and adopted Resolution 1244, which established the regime of international territorial administration over Kosovo.98 In the preamble, the Security Council expressed its determination ‘to resolve the grave ­humanitarian situation in Kosovo, Federal Republic of Yugoslavia, and to provide for the safe and free return of all refugees and displaced persons to their homes’ and further established ‘that the situation in the region continues to constitute a threat to international peace and security’.99 Again, a threat to international peace and security was established on the basis of a grave humanitarian situation created by domestic abuses of sovereign powers. Notably, the Resolution avoided any pronouncement on the (il)legality or effects of the NATO intervention. Therefore, it cannot

94 

cf (n 2). the Constitution of the Socialist Federal Republic of Yugoslavia (1974) Art 2. See also the Constitution of the Socialist Autonomous Province of Kosovo (1974), translated in Helsinki Committee for Human Rights in Serbia (1998), Kosovo: Law and Politics, Kosovo in Normative Acts Before and After 1974, especially 41 and 45. For a historical overview see N Malcolm, Kosovo: A Short History (London, Macmillan, 1998) 245–66. 96  See Malcolm (n 95) 344. 97  See B Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 European Journal of International Law 1, 10; A Cassese, ‘Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ (1999) 10 European Journal of International Law 23, 24; C Chinkin, ‘Kosovo: A “Good” or “Bad” War?’ (1999) 93 American Journal of International Law 841, 844. 98  UNSC Res 1244 (n 7). 99  UNSC Res 1244 (n 7) preamble. 95  See

Abusive Governments as a Threat 265 be concluded that a threat to international peace and security was established on this ground. Resolution 1244 did not grant Kosovo the status of an independent state but rather vested all legislative, executive and judicial powers in the selfgoverning organs and subordinated them to international administration. Kosovo was thus effectively severed from Serbia’s jurisdiction, although its formal legal status was not altered and, under Resolution 1244, Kosovo remained an integral part of Serbia. Kosovo declared independence in 2008 and its legal status remains controversial.100 A debate on Kosovo’s legal status falls outside the scope of this chapter. It rather needs to be recalled that the Resolution created an international territorial administration that led to the implementation of democratic institutions. Drawing authority from Resolution 1244, the Special Representative of the UN Secretary General101 promulgated the document entitled ‘Constitutional Framework for Provisional SelfGovernment­.’102 The chapter on basic provisions of the Constitutional Framework provides for the institutional setting for the exercise of ­Kosovo’s self-government­,103 enacts an electoral system based on democratic principles104 and also mechanisms for the protection of human rights.105 The Constitutional Framework also expresses the commitment of ­Kosovo’s self-governing institutions ‘through parliamentary democracy [to] enhance democratic governance and respect for the rule of law in Kosovo’.106 It further provides that ‘Kosovo shall be governed democratically through legislative, executive, and judicial bodies and institutions’107 and enumerates the promotion and respect of the democratic principles among those principles that shall be observed by the self-governing

100 For more on Kosovo’s declaration of independence and legal status, see generally M Weller, Contested Statehood: Kosovo’s Struggle for Independence (Oxford, Oxford University Press, 2009); J Summers (ed), Kosovo: A Precedent? The Declaration of Independence, the Advisory Opinion and Implications for Statehood, Self-Determination and Minority Rights (Leiden, M Nijhoff, 2011); J Vidmar, ‘International Legal Responses to Kosovo’s Declaration of Independence’ (2009) 42 Vanderbilt Journal of Transnational Law 779. 101  The position of the Special Representative was created by UNSC Res 1244 (n 7). The Resolution ‘[r]equests the Secretary-General to appoint, in consultation with the Security Council, a Special Representative to control the implementation of the international civil presence, and further requests the Secretary-General to instruct his Special Representative to coordinate closely with the international security presence to ensure that both presences operate towards the same goals and in a mutually supportive manner’ para 6. 102  UNMIK/REG/2001/9 (15 May 2001) [hereinafter the Constitutional Framework]. 103  ibid Chapter 1. 104  ibid Chapter 9.1.3. 105  ibid Chapter 3. 106  ibid preamble para 7. 107  ibid Chapter 1.1.4.

266  Jure Vidmar ­institutions.108 The Special Representative of the UN Secretary-General thus promulgated a legal instrument which implemented democratic institutions. The process of democratic transition in Kosovo was thus carried out under UN auspices. While the institutions of self-government were vested with powers in the exercise of effective control over the territory of Kosovo, which can be compared to those of authorities of independent states, the Constitutional Framework foresaw an appointed supervisor of the democratic process, ie the Special Representative of the UN Secretary General, to whom the self-governing organs remained subordinated.109 The Constitutional Framework did not foresee the organs of the F ­ ederal Republic of Yugoslavia (FRY) or Serbia having any authority over the decision-making of Kosovo’s self-governing institutions. Although ­ Resolution 1244 states that the aim of the interim administration is that ‘the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia,’110 the effective situation in fact established ­Kosovo’s autonomy within the interim administration. As one author noted, ‘UNMIK has assumed what is effectively (though not in name) the federal-type role of the Serb and FRY authorities, because these authorities failed to perform that role in the past.’111 Kosovo thus became an internationally administered territory without being put under the international trusteeship system of Chapter XII of the UN Charter.112 On 9 April 2008, after the declaration of independence, Kosovo’s ­Parliament adopted the Constitution of the Republic of Kosovo.113 The Constitution affirms Kosovo’s commitment to democracy in both the preamble114 and in the operative articles115 and proclaims that Kosovo ‘is a democratic Republic based on the principle of separation of p ­ owers and the checks and balances among them’.116 Apart from these g ­ enerally

108 

ibid Chapter 2.b. ibid Chapter 12. 110 UNSC Res 1244 (n 7) para 10. But see also W O’Neill, Kosovo: An Unfinished Peace (­Boulder, Lynne Rienner, 2002) 30, especially the following observation: ‘No one knew what the terms “substantial autonomy” and “meaningful self-administration” really meant. What united all Kosovo Albanians, regardless of their political party loyalties, was full independence from Serbia and what was left of the FRY. They did not want to hear about autonomy, however defined.’ 111  R Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford, Oxford University Press, 2008) 595. 112  See M Bothe and T Marauhn, ‘UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration’ in C Tomuschat (ed), Kosovo and the International Community: A Legal Assessment (The Hague, Kluwer, 2001) 230–35. 113  The Constitution of the Republic of Kosovo (2008). 114  ibid preamble para 1. 115  ibid Arts 1(1), 4, 7, 55(2), 125. 116  ibid Art 4(1). 109 

Abusive Governments as a Threat 267 expressed commitments, the Constitution establishes the institutions of a democratic political system. It provides for periodic elections to ­parliament117 and of the president,118 as well as elections based on secret ballot and on the proportionality electoral system.119 Although there is no explicit reference to multiparty elections, such a setting is implied in some of the provisions, particularly in those regulating the composition of the parliament,120 competencies of the president121 and formation of the government.122 The competencies of Kosovo’s constitutional organs, however, remain subordinated to the international territorial administration as Article 147 of the Constitution still grants the final legislative, judicial and executive authority to the International Civilian Representative.123 Thus, the Constitution not only accepts limits on Kosovo’s sovereignty and on competencies of its constitutional organs, but also unequivocally subscribes Kosovo to continued internationalised supervision. Kosovo is another example of international territorial administration being set in place to remedy governmental abusiveness. The abusive governmental practices were not underpinned directly by the lack of democracy, but rather by gross human rights violations and a grave humanitarian situation. Indeed, the non-democratic regime of Slobodan Milošević in Serbia did not receive an international denial of its legitimacy in the entire territory of Serbia but only in Kosovo, where the oppression had an ethnic basis. Under the regime of Security Council Resolution 1244, the international community implemented democratic institutions, but the power of the self-governing (democratic) institutions is limited. Any decision of these institutions can be overruled by the International Civilian Representative who can, thereby, act in the manner of an absolute ruler. IV.  GOVERNMENTAL ABUSIVENESS AND THE (IR)RELEVANCE OF DEMOCRATIC LEGITIMACY

It has been established through collective practice that representative legitimacy may be denied to governments that are abusive of their peoples. Governmental abusiveness in this context is defined as a gross and systematic violation of human rights coupled with a grave humanitarian situation. When new governments are internationally enacted there seems 117 

ibid Art 66. ibid Art 86. 119  ibid Art 64. 120 ibid. 121  ibid Art 84 (14). 122  ibid Arts 95(1) and 95(5). 123  ibid Art 147. 118 

268  Jure Vidmar to be an expectation that they will adhere to democratic practices and be subject to democratic legitimisation. Furthermore, where a democratically elected government is overthrown in a coup, some collective practice indicates that such an extra-constitutional change will not be internationally accepted. However, is the democratic legitimacy of government required by international law? No universal legal instrument binds states to a particular political ­system. This was confirmed by the ICJ in the Nicaragua case.124 Some human rights instruments refer to ‘democratic society’,125 but merely as a limitation clause to certain human rights elaborations and its meaning was never specified. However, in the Cold War environment, when these provisions were drafted, they could not be interpreted as a call for a particular political system. In the post-Cold War period, however, some scholars have argued that a requirement for a democratic political system derives from the provisions of civil and political rights: ‘[B]y becoming a party to an international human rights instrument, a state agrees to organize itself along democratic lines by establishing independent tribunals, allowing freedom of expression, and conducting free elections.’126 In particular, such an obligation may follow from the elaboration of the right to political participation. A.  The Scope of the Right to Political Participation The right to political participation is elaborated in Article 21 of the ­Universal Declaration of Human Rights (UDHR) and in Article 25 ICCPR. In the Cold War environment, the scope of the right was not to be read

124 See

Nicaragua case (n 15). International Covenant on Economic, Social and Cultural Rights (ICESCR) comprehends a general limitation clause in Article 4: ‘The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’ The ICESCR also refers to ‘democratic society’ as part of the limitation clause in the elaboration subparagraphs (a) and (c) of Article 8 (the right to form trade unions). The International C ­ ovenant on Civil and Political Rights (ICCPR) attaches the interest of ‘democratic society’ as one of the limitation clauses to Articles 14 (right to a fair trial), 21 (freedom of assembly) and 22 (­freedom of association). The Convention on the Rights of the Child (CRC) invokes, inter alia, the interest of democratic society as a limitation clause to Article 15 (rights of a child to freedom of association and assembly). The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families attaches the interest of ‘democratic society’ within the limitation clause to Articles 26 (the right of migrant workers to take part in the trade unions) and 40 (the freedom of assembly of migrant workers). 126  C Cerna, ‘Universal Democracy: An International Legal Right or the Pipe Dream of the West?’ (1995) 27 New York University Journal of International Law & Politics 289, 295. 125  The

Abusive Governments as a Threat 269 too broadly. While the interpretation of the Western world referred to the model of ‘liberal democracy’, which presupposes elections in a multiparty setting,127 the interpretation of the Soviet bloc adhered to the model of the ‘people’s democracy’.128 Arguably, the right to political participation in the universal elaborations can be reconciled with both Western and Soviet concepts of democracy; as neither Article 21 of the UDHR nor Article 25 of the ICCPR specifically requires multiparty elections.129 The drafting history indeed shows that many—perhaps most—signatory states would have refused to ratify the ICCPR were it to bind them to democratic institutions and multiparty elections.130 Thus, the language of the UDHR and the ICCPR is to be understood as a codification of the lowest common denominator of the right to political participation and not as a call for a particular political system. B.  A Switch to Democracy? At the end of the Cold War and inspired by the proclamation of the ‘end of history’,131 an attempt was made to proclaim democracy itself a human right. In his ground-breaking article entitled ‘The Emerging Right to D ­ emocratic Governance’,132 Thomas Franck derived this right from the rights of self-determination, freedom of expression and political participation.133 Although the three underpinnings of the right to democratic governance had already been international legal norms binding under treaty (ie ICCPR) and custom, the proponents of the theory of normative democratic entitlement argued that it was the international circumstances at the end of the Cold War which allowed the reinterpretation of their normative scope with a pro-democratic bias.134 Especially relevant in this regard

127 

See Roth (n 51) 325–32. Consider especially the following argument: ‘In the Marxist-Leninist view, multi-party competition [otherwise a crucial postulate of the Western concept of liberal democracy] masks the inalterable structure of power rooted in the concentrated ownership and control of the major means of production, distribution and exchange.’ Roth (n 51) 331. 129  The amendment to Article 21 of the UDHR, which would call for multiparty elections, was withdrawn upon protest by the Soviet Government. See Roth (n 51) 326–27. 130  Roth (n 51) 332. 131  For more on the critique of ‘democratic ideology’, see S Marks, The Riddle of All Constitutions (Oxford, Oxford University Press, 2000) 8–49. 132  Franck (n 2). 133  Franck (n 2) 52. 134 Consider the following counterargument: ‘Democracy, or the right to live under a democratic form of government, became an international legal right in 1948 [by the UDHR], although for decades it was honored more in breach than in observance.’ Cerna (n 126) 290. 128 

270  Jure Vidmar were democratisations in East-Central Europe and the collective response to the coup in Haiti.135 However, such arguments were both Euro-centric and tried to overstretch the Security Council’s response to the situation in Haiti. As demonstrated above, this was not an intervention against a firmly-established non-democratic government, but rather a response to a coup against an elected government. After the end of the Cold War, references to democracy and free and fair elections were made in a number of General Assembly resolutions. In all of them the understanding of democracy was expressed very cautiously, without reference to elections in a multiparty setting. The most instructive in this context are Resolutions 45/150 and 45/151. Resolution 45/150, inter alia, provides that the efforts of the international community to enhance the effectiveness of the principle of periodic and genuine elections should not call into question each State’s sovereign right freely to choose and develop its political, social, economic, and cultural systems, whether or not they conform to the preferences of other States.136

Resolution 45/151 states that Recognizing that the principles of national sovereignty and non-interference­ in the internal affairs of any State should be respected in the holding of ­elections … there is no single political system or single model for electoral process equally suited to all nations and their peoples.137

These resolutions not only fail to specify that elections need to take place in a multiparty setting, but also affirm that the choice of a political system is a domestic matter for each state. References to democracy and to the will of the people also appear in the set of General Assembly resolutions entitled ‘Support of the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies’. However, when referring to elections, these resolutions subscribe themselves to the text of international human rights instruments and do not mention a particular electoral method.138 135 

Franck (n 2) 47. Res 45/150 (18 December 1990) UN Doc A/RES/45/150. The Resolution was adopted with a vote of 129 in favour and eight against, with nine abstentions. 137  UNGA Res 45/151 (18 December 1990) UN Doc A/RES/45/151. The Resolution was adopted with a vote of 111 in favour, and 29 against, with 11 abstentions. 138  UNGA Res 50/133 (20 December 1995) UN Doc A/RES/50/133; UNGA Res 51/31 (13 December 1996) UN Doc A/RES/51/31; UNGA Res 52/18 (21 November 1997) UN Doc A/RES/52/18; UNGA Res 53/31 (23 November 1998) UN Doc A/RES/53/31; UNGA Res 54/36 (29 November 1999) UN Doc A/RES/54/36; UNGA Res 55/43 (27 November 2000) UN Doc A/RES/55/43; UNGA Res 58/13 (17 November 2003) A/RES/58/13; UNGA Res 58/281 (9 February 2004) A/RES/58/281; UNGA Res 60/253 (2 May 2006) UN Doc A/RES/60/253; UNGA Res 61/226 (22 December 2006) UN Doc A/RES/61/226; UNGA Res 56/2 (8 September 2000) A/RES/56/2. 136  UNGA

Abusive Governments as a Threat 271 The resolutions indeed specifically affirm that ‘while democracies share common features, there is no single model of democracy and that [­democracy] does not belong to any country or region’.139 References to democracy are also made in some other documents adopted in the UN-framework, such as the Vienna Declaration and Programme of Action140 and the Millennium Declaration,141 but these documents do not go beyond the general mentioning of democracy, no definition is attempted and no link between democracy and multiparty elections is established. Arguably, these General Assembly resolutions may be considered to reflect customary international law regarding the relationship between obligations imposed by the right to political participation and the principle of non-interference into matters essentially in domestic jurisdiction, such as the adoption of a particular political system and/or electoral method. Even in the post-Cold War period, the right to political participation is not to be read too broadly. In principle, international law still does not require a particular political system or electoral method. International law does not prescribe a particular political system or electoral method. Governments therefore do not lose their legitimacy simply by not adhering to democratic (electoral) practice and neither has the ­Security Council ever invoked the concern for international peace and security in order to challenge a firmly established non-democratic government. V. CONCLUSION

Effectiveness remains an important consideration for governmental ­legitimacy. Indeed, the Gaddafi government did not lose its right to represent Libya before it lost control over a significant part of the territory of that state. While some states see the Syrian opposition as the legitimate representative of the people of Syria, they have failed to follow the Libyan precedent and have not explicitly recognised the present opposition to the government of Syria. This is obviously due to the fact that the incumbent government can still demonstrate a sufficient degree of control over the territory. Moreover, when the Security Council resolutions challenged the legitimacy of the Taliban government in Afghanistan, they also indicated that the Taliban were not in full effective control of that state. Even in that

139  UNGA Res 60/253 (2 May 2006) A/RES/60/253 preamble para 11; UNGA Res 61/226 (n 138) preamble para 7; UNGA Res 62/7 (8 November 2007) A/RES/62/7 preamble para 7. 140 ‘Vienna Declaration and Programme of Action’ UN Doc A/CONF.157/23 (12 July 1993). 141  UNGA Res 55/2 (8 September 2000) A/RES/55/2 paras 24 and 25.

272  Jure Vidmar case, the legitimacy of the government was thus, at least partly, challenged on the question of effective control. Collective practice demonstrates that the representative legitimacy of firmly established effective governments will not be challenged, regardless of their behaviour. Such a challenge can follow in the rather limited circumstances where abusive governments at least partly lose control over the territory of the states they claim to represent, or in the event of a coup against a democratically elected government. The collective response is usually formalised through action of the Security Council under ­Chapter VII of the UN Charter. Such an action requires a threat to international peace and security. This concept is interpreted broadly and does not require a classical trans-boundary element. The threshold of a threat can be met domestically, by gross and systematic human rights violations and a grave humanitarian situation. In the earlier period of the UN Charter, the international standard emerged of denying legitimacy to apartheid governments, regardless of their degree of effectiveness. Subsequently, governments were also denied international legitimacy in other instances of abusive behaviour. However, this pattern should not be interpreted too broadly and it should not be concluded that human rights violations, or even a lack of democratic practices, automatically leads to a loss of governmental legitimacy. The doctrine is established on collective responses to the situations in Afghanistan, East Timor, Haiti, Kosovo, Libya and Syria. This demonstrates that the international community will strip the government of its legitimacy only where its policies culminate in a grave humanitarian situation and mass atrocities. The analysis of collective practice therefore demonstrates that international peace and security can be breached by a government’s domestic abuse of sovereign powers. In other words, no traditional trans-boundary­ element is needed as a trigger for the Security Council’s Chapter VII powers. Abusive governmental behaviour should not be interpreted too broadly; it is not defined by an absence of democratic elections or violations of human rights in general. International practice rather shows that abusive governmental behaviour may be defined by war crimes and crimes against humanity. Even then the loss of governmental legitimacy is not automatic and depends on collective action by foreign states, primarily through the UN Security Council. A collective action outside of this institutional framework remains controversial under present international law. However, the revived concept of the (de-) recognition of governments shows that the international community can respond to governmental abusiveness even outside of the Security Council’s Chapter VII powers. It remains to be seen whether de-recognition of abusive governments will be more prominently used as a tool in the future.

11 Protecting Security Interests in International Investment Law PRABHASH RANJAN

I. INTRODUCTION

D

UE TO A variety of factors, in the late 1990s and early 2000, Argentina suffered a severe economic and financial crisis.1 ­ This crisis resulted in a major economic breakdown, very high unemployment, the outbreak of riots and social disorder and politi­ cal instability, all of which led to an extremely dire situation.2 In order to effectively respond to this severe economic crisis, Argentina adopted many regulatory measures, such as blocking bank deposits, prohibiting the transfer of funds abroad and so-called ‘pesification’ (ie the forced conversion of outstanding dollar-denominated contracts and debts into Argentinian Pesos).3 However, these regulatory measures severely impacted the investment of many foreign investors and several challenged these measures using the investment treaty arbitration4 mechanism provided for in the bilateral 1 For a detailed description of the Argentine economic crisis, see J Saxton, Argentina’s ­ conomic Crisis: Causes and Cures (Washington DC, Joint Economic Committee, United States E Congress, 2003) www.hacer.org/pdf/Schuler.pdf; International Monetary Fund, Evaluation Report, The IMF and Argentina: 1991–2001 (Washington DC, IMF, 2004) www.imf.org/­ external/np/ieo/2004/arg/eng/pdf/report.pdf; ‘A Decline without Parallel—Argentina’s Collapse’ (Special Report) The Economist (2 March 2002); P Blustein, And the Money Kept ­Rolling In (and Out): Wall Street, The IMF and the Bankrupting of Argentina (New York, Public Affairs, 2005) 23–24. 2  Saxton (n 1). 3  Continental Casualty Company v Argentina, ICSID Case No ARB/03/9, Award (5 ­September 2008) para 137. 4  The provision on Investment Treaty Arbitration is a salient feature of a large majority of BITs. Under this provision, foreign investors can directly bring claims against the host state for alleged BIT breaches. Host states, as part of this provision, offer unequivocal consent to arbitration. For more on this see C Schreuer, ‘Consent to Arbitrate’ in P Muchlinski et al (eds), The Oxford Handbook of International Investment Law (Oxford, Oxford University Press, 2008) 835–36; R Dolzer and C Schreuer, Principles of International Investment Law (Oxford, Oxford University Press, 2012) 235–310; J Salacuse, The Law of Investment Treaties (Oxford, Oxford University Press, 2010) 353–92.

274  Prabhash Ranjan investment treaties (BITs)5 signed by Argentina.6 These foreign investors alleged that Argentina’s regulatory measures violated Argentina’s BIT obligations containing, inter alia, provisions on expropriation, fair and equitable treatment and transfer of funds. In all these cases, Argentina invoked the defence that such measures were necessary to safeguard its essential security interests. Thus, these disputes provide an opportunity to understand the issue of protecting security interests in international investment law, which is underpinned by a network of more than 3000 different BITs constituting a regime for international investment.7 In this chapter, the endeavour is to understand this issue by critically examining a number of key investment arbitration cases where host states defended the charge of violating their obligations under BITs by invoking the defence of safeguarding ‘essential security interests’. The chapter also assesses the lessons that can be learnt from Argentina’s experience when it comes to protecting security interests in international investment law. The chapter comprehends the issue of protecting security interests in international investment law by dividing the discussion into two parts. First, it examines the issue of protecting security interests in those BITs that specifically allow the host state to deviate from its treaty obligations in order to protect security interests. In other words, arbitral cases involving BITs that contain an ‘essential security interests’ exception are discussed. Second, the chapter examines those BITs that do not contain any provision, allowing host states to deviate from their treaty obligations in order to protect their security interests. In other words, those arbitral cases involving BITs that do not contain an ‘essential security interests’ exception are discussed. Finally, the chapter concludes by drawing lessons that other states can learn from the foregoing analysis of this rich jurisprudence.

5  BITs are treaties signed at the bilateral level by two countries to protect investments made by investors of both the countries—for more on BITs see Dolzer and Schreuer (n 4); Salacuse (n 4); A Newcombe and L Paradell, The Law and Practice of Investment Treaties: Standards of Treatment (The Hague, Kluwer Law International, 2009). 6  For an overview on such claims against Argentina, see LE Peterson, ‘Argentina by the Numbers: Where Things Stand With Investment Treaty Claims Arising out of the ­Argentine Financial Crisis’ I A Reporter (2011) www.iareporter.com/articles/20110201_9. On BIT claims against Argentina due to the financial crisis, see also JE Alvarez and K Khamsi, ‘The ­Argentine Crisis and Foreign Investors’ (2008–09) 1 Oxford Yearbook of Investment Law and Policy 379; MH Mourra (ed), Latin American Investment Treaty Arbitration: The Controversies and Conflicts (The Hague, Kluwer Law International, 2008). 7  Salacuse (n 4) 5–17.

Security in International Investment Law 275 II.  PROTECTING SECURITY INTERESTS IN THOSE BITs THAT CONTAIN A ‘SECURITY INTEREST’ EXCEPTION

The issues of protecting security interests in those BITs that contain the ‘security interests’ exception pose two fundamental questions. First, what is the meaning of ‘essential security interests’ in BITs—is this limited to strict security-related interests or does it have a broader meaning that includes non-security-related interests? Second, when can a regulatory measure adopted by a host state be deemed to be ‘necessary’ to safeguard a host state’s essential security interests? In order to answer these two questions, the discussion on protecting security interests in BITs that contain a ‘security interests’ exception will proceed as follows. We divide all such BITs into two types. Type I BITs are those where the ‘security interests’ exception is not self-judging and does not have a list of activities related to ‘security interests’. A good example of this is Article XI of the US-Argentina BIT, which provides that This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of public order, the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the Protection of its own essential security interests.

Exceptions of the kind contained in Article XI of the US-Argentina BIT are also known as Non Precluded Measures (NPM) provisions. NPM provisions in a BIT (starting with words like ‘nothing in this agreement precludes’) provide the regulatory latitude to host countries to deal with threats to important national interests.8 Type II BITs are those where this exception is self-judging and contain a list of activities related to ‘security interests’. Self-judging, for the purposes of this chapter, means that the clause in the BIT grants discretion to states to unilaterally deviate from their BIT obligations to protect what they assess as their ‘security interests’.9 An example of such a self-judging clause, containing a list of activities related to ‘security interest’, is given in Article 2102(1) of the North American Free Trade Agreement (NAFTA), which states: nothing in this Agreement shall be construed: (b) to prevent any Party from taking any actions that it considers necessary for the protection of its essential security interests: (i) relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods, materials, ­services 8  J Kurtz, ‘Adjudging the Exceptional at International Investment Law: Security, Public Order and Financial Crisis’ (2010) 59(2) International and Comparative Law Quarterly 325, 343. 9  For more on this, see SW Schill and R Briese, ‘“If the State Considers”: Self-Judging Clauses in International Dispute Settlement’ in A von Bogdandy and R Wolfrum (eds) (2009) 13 Max Planck Yearbook of United Nations Law 61.

276  Prabhash Ranjan and technology undertaken directly or indirectly for the purpose of supplying a military or other security establishment, (ii) taken in time of war or other emergency in international relations, or (iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of nuclear weapons or other nuclear explosive devices.

In this provision, the words ‘that it considers necessary’ gives the discretion to the host state to take any action, which, in the assessment of the state, is necessary for the protection of its essential security interests related to the list of activities identified above. A self-judging exception will imply that the adjudicator shall have to show significant deference to the state invoking the exception.10 A. Type I BITs—BITs Containing ‘Essential Security Interest’ Exception Without Self-Judging Language In order to understand ‘essential security interests’ in such BITs, let us take Article XI of the US-Argentina BIT, mentioned before, as an example. The reason for taking this provision as an example is obvious—it has been heavily litigated in the following investment arbitration decisions, namely CMS v Argentina,11 Enron v Argentina,12 Sempra v Argentina,13 LG&E v Argentina;14 Continental Casualty v Argentina15 and El Paso v Argentina.16 All these cases have thrown up important issues, such as the breadth and scope of ‘security interests’ in international investment law. Despite Article XI of the US-Argentina BIT not employing self-judging language, Argentina argued that this provision is self-judging. For instance, in CMS v Argentina, Argentina argued that it was free to determine the need for the adoption of extraordinary measures based on its assessment of an emergency situation or threat to its security interests.17 However, the tribunal disagreed with Argentina and held that there is not sufficient textual basis to conclude that Article XI is self-judging.18

10 

Kurtz (n 8) 348. CMS Gas Transmission Co v Argentina, ICISD Case No ARB/01/8, Award (12 May 2005). 12  Enron Corporation v Argentina, ICSID Case No ARB/01/3, Award (22 May 2007). 13  Sempra Energy International v Argentina, ICSID Case No ARB/02/16, Award (28 ­September 2007). 14  LG&E Energy Corporation v Argentina, ICISD Case No ARB/02/1, Decision on Liability (26 September 2006). 15  Continental Casualty Company v Argentina (n 3). 16  El Paso Energy International Company v Argentina, ICSID Case No. ARB/03/15, Award (31 October 2011). 17  CMS v Argentina (n 11) para 367. 18  ibid, paras 371–73. 11 

Security in International Investment Law 277 Similarly, the tribunals in LG&E v Argentina,19 Sempra v Argentina,20 Enron v Argentina,21 Continental Casualty v Argentina22 and El Paso v ­Argentina23 rightly held that, in the absence of clear textual support in Article XI of the US-Argentina BIT, it cannot be concluded that the ‘essential security interests’ exception is self-judging. In other words, Article XI of the US-Argentina BIT does not allow for a unilateral assessment of security interests by host states. Arbitral tribunals can exercise substantive judicial control, not mere ‘good faith’ review, on the question of a state’s assessment of ‘essential security interest’.24 After having discussed this preliminary issue, attention now turns to the two fundamental questions posed before—what is the meaning of ‘essential security interests’ in a non-self-judging clause, like Article XI of the US-Argentina BIT? When can a regulatory measure adopted by the host state be deemed to be ‘necessary’ to protect a host state’s essential security interest? i.  Meaning of ‘Essential Security Interests’ The meaning of ‘essential security interests’ has two elements. First, what is the scope of ‘essential security interests’ (ie whether it refers to purely security-related threats or whether it also includes non-security-related threats within its ambit). Second, whether the phrase ‘essential security interests’ means those circumstances where the very existence and independence of the state is compromised, or whether it covers those situations that are severe but below this highest threshold. In other words, what is the threshold for the state to invoke the ‘essential security interests’ exception? We discuss each of these elements below. ii.  Scope of ‘Essential Security Interests’ An important issue in BITs that contain an ‘essential security interests’ exception, is whether the term ‘security’ is confined to purely securityrelated threats, like war, external aggression, armed conflict or such military related threats, or whether it also includes other threats, like ­economic, health or environmental emergencies. This question arose in all the Argentine cases where Argentina argued that the ‘essential security interests’ exception in Article XI of the US-Argentina BIT covers economic

19 

LG&E v Argentina (n 14) paras 212–13. Sempra v Argentina (n 13) para 374. 21  Enron v Argentina (n 12) para 339. 22  Continental Casualty v Argentina (n 3) paras 187–88. 23  El Paso v Argentina (n 16) paras 588–610. 24  Enron v Argentina (n 12) para 339. 20 

278  Prabhash Ranjan and financial crises as well. As per this argument, a country can have recourse to the ‘essential security interest’ exception, not just in pure security related threats, but also in situations of economic and financial crises. Opinion on this question is divided, with some arguing for a narrow interpretation of the ‘essential security interests’ exception. Authors like Reinisch argue that, from a plain meaning of ‘essential security i­nterests’, one cannot conclude that it includes economic emergencies because ‘essential security interests’ primarily relate to military and ­ strategic ­considerations.25 This is supported by Alvarez and Khamsi who argue that, in the context of Article XI of the US-Argentina BIT, ‘­essential security interests’ is not a particularly open-ended term26 and that an e­ conomic ­crisis, as such, cannot be included within the meaning of ‘essential security interests’.27 The authors argue that ‘security’ normally refers to defence and military matters and ‘essential’ means only those matters that are most important or serious.28 However, the tribunals that have interpreted Article XI of the USArgentina BIT have rejected this narrow interpretation of ‘essential security interests’. In CMS v Argentina, the tribunal said that major economic crises are not excluded from the purview of Article XI of the US-Argentina BIT.29 The tribunal said: If the concept of essential security interests were to be limited to immediate political and national security concerns, particularly of an international character, and were to exclude other interests, for example, major economic emergencies, it could well result in an unbalanced understanding of Article XI. Such an approach would not be entirely consistent with the rules governing the interpretation of treaties.30

Similarly, in LG&E v Argentina, the tribunal rejected the argument that Article XI of the US-Argentina BIT is applicable only in circumstances amounting to military action and war and held that ‘essential security interests’ also include an economic crisis.31 Again, both the Sempra v ­Argentina and Enron v Argentina tribunals held that ‘essential security interests’ can encompass situations other than traditional military threats, such as economic emergencies and crises.32 The tribunal in Continental

25  A Reinisch, ‘Necessity in International Investment Arbitration—an Unnecessary Split of Opinions in Recent ICSID Cases?’ (2007) 7 Journal of World Investment and Trade 191, 209. 26  Alvarez and Khamsi (n 6) 65. See also WJ Moon, ‘Essential Security Interests in International Investment Agreements’ (2012) 15(2) Journal of International Economic Law 481. 27  Alvarez and Khamsi (n 6). 28 ibid. 29  CMS v Argentina (n 11) para 359. 30 ibid. 31  LG&E v Argentina (n 14) para 238. 32 See Enron v Argentina (n 12) para 332 and Sempra v Argentina (n 13) para 374.

Security in International Investment Law 279 Casualty v Argentina was also of the same view. The tribunal found support in the rulings of the previous tribunals and held that a severe economic crisis qualifies as affecting an ‘essential security interest’.33 The tribunal in El Paso v Argentina also reached the same conclusion that an economic emergency could fall under Article XI of the US-Argentina BIT.34 Thus, all investment arbitration tribunals, entrusted with the responsibility of interpreting Article XI of the US-Argentina BIT, have given a broad meaning to ‘security interests’ and held that it is not confined or limited to only purely security-related threats, but may also include other crises like economic crises.35 Support for the broad interpretation of ‘security interests’ also comes from the International Court of Justice (ICJ), which, while interpreting ‘essential security interests’ occurring in the Friendship Commerce and Navigation (FCN) treaties between US and Nicaragua, said that ‘the concept of essential security interests certainly extends beyond the concept of an armed attack, and has been subject to very broad interpretations in the past’.36 The argument for a limited or narrow interpretation of ‘security interests’ in BITs, such as the one between the US and Argentina, ignores the fact that most investment treaties do not contain separate provisions for exceptions of a ‘general’ nature and exceptions related to ‘security interests’. Separate provisions for exceptions of a ‘general’ nature and exceptions related to ‘security interests’ are present in GATT 1994.37 In GATT, Article XX contains the ‘General Exceptions’ or non-security related exceptions, whereas Article XXI contains the ‘Security Exceptions’. Thus, there are different provisions covering both security and non-security related exceptions, making it redundant whether security exceptions should be broadly construed. However, in BITs that do not contain separate provisions for ‘security’ and ‘non-security’ related exceptions, construing ‘security interests’

33 

Continental Casualty v Argentina (n 3) paras 178, 180–81. El Paso v Argentina (n 16) para 611. 35  Also see AK Bjorklund, ‘Emergency Exceptions: State of Necessity and Force Majeure’ in P Muchlinski et al (n 4) 481. In this regard, see the criticism of Kurtz (n 8) 362–64, who argues that although the tribunals reach the correct conclusion, they do not provide a sound theoretical analysis as to why ‘essential security interests’ should not be limited to strict security related concerns. He argues that Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) should be used to interpret ‘essential security interests’. 36  Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 1. For a different understanding of these judgments, see Alvarez and Khamsi (n 6) 65–66. For scholarly support for a broader interpretation of ‘essential security interest’ see Newcombe and Paradell (n 5) 497. See also T Gazzini, ‘Foreign Investment and Measures Adopted on Grounds of Necessity: Towards a Common Understanding’ (2009) Transnational Dispute Management 1, 17–18. 37  General Agreement on Tariffs and Trade 1994, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 187; 33 ILM 1153 (1994) [hereinafter GATT 1994]. 34 

280  Prabhash Ranjan ­ arrowly will mean that the regulatory ability of states to adopt sovereign n measures in response to severe economic, health or other kinds of crisis will be severely curtailed.38 A limited or narrow interpretation of ‘security interests’ is only appropriate in those circumstances where the BIT contains a separate general exception clause covering a range of objectives, such as health and the environment. Some recent BITs do contain separate provisions for exceptions of a ‘­general’ nature and exceptions of a ‘security’ nature as in the GATT. For example, the Association of Southeast Asian Nations (ASEAN) Comprehensive Investment Agreement contains both ‘General Exceptions’ in ­Article 17 and ‘Security Exceptions’ in Article 18.39 Article 17 of the ASEAN Comprehensive Investment Agreement allows countries to deviate from their treaty obligations when it is necessary to protect public order or necessary to protect human health, etc.40 Article 18 of said treaty allows ­member countries to deviate from their treaty obligations for ‘security-related’ interests. Such BITs are different from those that do not contain a separate ‘general’ exception clause and thus, in these kinds of BITs, ‘­security interests’ are to be narrowly understood. B.  The Question of Threshold Although tribunals have shown unanimity in interpreting ‘security ­interests’ in Article XI of the US-Argentina BIT provision as broad enough to include not just strict security-type threats but also economic and financial interests, there is disagreement on the question of threshold. In other words, tribunals have diverged on the question of how high the threshold should be for a state to successfully make a case under the ‘essential security interests’ exception. In the phrase, ‘essential security interests’, ‘security interests’ are qualified by the word ‘essential’. The ordinary meaning of the word ‘­essential’ is ‘vitally important’. Thus, to invoke ‘essential security interests’ as grounds to deviate from BIT obligations, it will have to be shown that the ‘security interests’ are vitally important and not just ordinary.

38  While BITs do not prohibit states from adopting regulatory measures of any kind, states will have to pay damages to foreign investors if these regulatory measures are found to be inconsistent with their BIT obligations. This dissuades states from adopting such regulatory measures. 39 ASEAN Comprehensive Investment Agreement (signed on 26 February 2009) www. aseansec.org/asean-anthem/. See also the US Model Bilateral Investment Treaty (2012) www.state.gov/documents/organization/188371.pdf and B Legum and I Petculescu, ‘GATT Article XX and International Investment Law’ in R Echandi and P Sauvé (eds), Prospects in International Investment Law and Policy (Cambridge, Cambridge University Press, 2013). 40  See the ASEAN Comprehensive Investment Agreement (n 39) Article 17(1).

Security in International Investment Law 281 So, for an economic or financial crisis to fall under ‘essential security interests’ it will have to reach the threshold of ‘vitally important’. Those economic and financial situations, or, for that matter, health and environmental situations, that do not meet this high threshold, may qualify as a ‘security interest’ but not as an ‘essential security interest’. Thus, the tribunal in CMS v Argentina, after ruling that an economic crisis is a ‘security interest’, said that the real question is ‘how grave an economic crisis must be so as to qualify as an essential security interest’.41 The CMS tribunal described this threshold in terms of ‘total ­collapse’.42 Thus, the tribunal held that, although the economic crisis faced by ­Argentina was severe, it ‘did not result in total economic and social ­collapse’.43 ­ Likewise, the Enron v Argentina tribunal held that the ­threshold for successful invocation of ‘essential security interests’ is very high—the crisis should compromise the very existence of the state and its independence.44 The chief reason for such a high threshold is the reliance of these tribunals on the customary international law defence of necessity45 to interpret Article XI of the US-Argentina BIT (the use of the customary international law defence of necessity to interpret ‘necessary’ in Article XI is discussed later in detail). For example, the tribunal in Sempra v Argentina held that since the BIT does not define the meaning of ‘essential security interests’, the requirements of state of necessity under customary international law become relevant.46 The customary international law defence of necessity is given in ­Article 25 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts.47 Article 25 states that ‘this defence can be invoked if the adopted measure is the “only way” for the state to safeguard an essential interest against a “grave and imminent peril”’.48 Furthermore, this defence is ­subject to three more stringent conditions. First, the adopted measure should not impair the essential interest of the other state or of the international

41 

CMS v Argentina (n 11) para 361. ibid, paras 354, 355. 43  ibid, para 355. 44  Enron v Argentina (n 12) para 306. See also Sempra v Argentina (n 13) para 348. 45 This customary defence of necessity is given in Article 25 of the International Law ­Commission’s (ILC) Draft Articles on Responsibility of States for Internationally ­Wrongful Acts (2001) legal.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf [hereinafter ILC Draft Articles on State Responsibility]. See also the arguments of Gazzini (n 36) 18 in the context of the NPM provision of US-Argentina BIT (Article XI), that the gap created in Article XI of the US-Argentina BIT, by not defining essential security interests, can be filled by the notion of ‘grave and imminent peril’ given in Article 25 ILC Draft Articles on State Responsibility. 46  Sempra v Argentina (n 13) para 375. 47  ILC Draft Articles on State Responsibility (n 45) Article 25. 48  ibid, Article 25(1)(a). 42 

282  Prabhash Ranjan community as a whole.49 Second, the international o ­ bligation in q ­ uestion should not exclude the possibility of invoking necessity.50 Third, the invoking state should not have contributed to the situation of ­necessity.51 These conditions make the customary international law defence of necessity a very stringent exception to preclude w ­ rongfulness.52 Indeed, this was recognised by the tribunal in CMS v Argentina when it said: While the existence of necessity as a ground for precluding wrongfulness under international law is no longer disputed, there is also consensus to the effect that this ground is an exceptional one and has to be addressed in a prudent manner to avoid abuse. The very opening of the Article to the effect that necessity ‘may not be invoked’ unless strict conditions are met, is indicative of this restrictive approach of international law… The reason is not difficult to understand. If strict and demanding conditions are not required or are loosely applied, any State could invoke necessity to elude its international obligations. This would certainly be contrary to the stability and predictability of the law.53

The high threshold of ‘total collapse’ provided by the CMS, Sempra and Enron tribunals begs the following observations. First, such a high ­threshold to invoke the ‘essential security interests’ exception means that this exception will not be available to host states in situations short of ‘total collapse’ or ‘total breakdown’. However, the threshold of ‘total collapse’ is extremely high and will leave host states without any effective remedy in situations short of ‘total collapse’ that require an immediate response. This was recognised by the LG&E tribunal, which held that what qualifies as an ‘essential’ interest is not limited to those interests referring to the state’s existence alone.54 Any danger seriously compromising the internal and external situation of the state could also be an ‘essential’ interest.55 Second, the requirement that host states should act only when there is a ‘total collapse’ or a ‘total breakdown’ means that a catastrophic ­situation has already occurred before the state has recourse to the ‘essential security interests’ exception.56 However, when a catastrophic situation has already occurred, then nothing will be left for the host state to protect.57 Such an interpretation defeats the very purpose of having an ‘essential security interests’ exception in the first place. States would not have ­

49 

ibid, Article 25(1)(b). ibid, Article 25(2)(a). 51  ibid, Article 25(2)(b). 52  J Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002) 160–86. 53  CMS v Argentina (n 11) para 317. 54  LG&E v Argentina (n 14) para 251 55 ibid. 56  Continental Casualty v Argentina (n 3) para 180. 57 ibid. 50 

Security in International Investment Law 283 agreed on an ‘essential security interest’ exception that would be practically unworkable. Third, the requirement that host states can use the ‘essential security interests’ exception only when there is ‘total collapse’ does not give any deference to the host state to decide as to what constitutes a risk to its national security.58 The LG&E tribunal rightly held that what is ‘essential’ has to be determined in the specific circumstances in which the state finds itself and cannot be predefined in an abstract manner.59 It has also been argued that since investment treaty arbitration operates in a public law context,60 tribunals cannot employ strict private law standards of review to adjudicate sovereign state action.61 Thus, it is imperative that tribunals grant a due margin of appreciation62 to states to decide when a ‘security interest’ reaches the threshold to qualify as ‘essential security interest’. C.  Measures Should be ‘Necessary’ to Protect Security Interests An important issue in the debate on protecting security interests in international investment law is related to the meaning of ‘necessary’. As discussed previously, Article XI of the US-Argentina BIT precludes the application of measures ‘necessary’ for the protection of ‘essential security interests’. In other words, measures that are not ‘necessary’ to protect ‘essential security interests’ are not precluded from the US-Argentina BIT. Thus, it is important to determine the meaning of the word ‘necessary’. In this regard, there is a great degree of divergence amongst the arbitral tribunals. The majority of tribunals have relied on the customary international law defence of necessity, in one form or the other, to interpret ‘necessary’ in the ‘essential security interests’ exception given in Article XI of the US Argentina BIT. On the one hand, the tribunals in CMS v Argentina, Enron v Argentina and Sempra v Argentina relied entirely on the customary international law defence of necessity in a conceptually obfuscated manner

58 WW Burke-White and A von Staden, ‘Private Litigation in Public Law Sphere: The Standard of Review in Investor State Arbitrations’ (2010) 35 Yale Journal of International Law 283. 59  LG&E v Argentina (n 14) para 252. 60  On public law conceptualisation of investment treaty arbitration, see G Van Harten, Investment Treaty Arbitration and Public Law (Oxford, Oxford University Press, 2007). 61  Burke-White and von Staden (n 58). See also A Stone Sweet, ‘Investor-State Arbitration: Proportionality’s New Frontier’ (2010) 4 Law and Ethics of Human Rights 47. 62  On the margin of appreciation in international investment law, see J Arato, ‘The Margin of Appreciation in International Investment Law’ (2014) 54 Virginia Journal of International Law 545.

284  Prabhash Ranjan to interpret ‘necessary’ in the treaty. The LG&E v Argentina tribunal used it to confirm its interpretation of the treaty defence of ‘necessary’. The El Paso v Argentina tribunal used one component of the customary international law defence of necessity to interpret ‘necessary’ in the BIT. On the other hand, the tribunal in Continental Casualty v Argentina relied on World Trade Organisation (WTO) jurisprudence concerning Article XX of GATT 1994 to interpret ‘necessary’ in the BIT.63 These cases are critically examined below, starting with CMS. The CMS tribunal reviewed Argentina’s measure on the basis of necessity under Article 25 of the ILC Draft Articles on State ­Responsibility64 and subsequently looked at the measure under Article XI of the ­US-Argentina BIT, or the so-called ‘NPM’ (the provision aimed at providing regulatory latitude to the host country in a BIT).65 However, the tribunal’s analysis under Article XI is inseparable from the analysis undertaken under ­Article 25 ILC Draft Articles because the tribunal drew heavily on ­Article 25, even while interpreting Article XI of the US-Argentina BIT.66 For example, while interpreting Article XI, the tribunal, drawing on ­Article 25 ILC Draft Articles, asked whether ‘the act in question does not seriously impair an essential interest of the State or States towards which the obligation exists’, although Article XI does not contain such a condition.67 As a result, the tribunal reached the same conclusion. The Enron tribunal, likewise, held that since the Argentinean measures do not meet the requirements of the customary international law defence of necessity, they cannot be held to preclude Argentina’s wrongfulness.68 The tribunal further held that since these measures do not meet the customary international law defence, there is no need to review these measures under Article XI of the treaty because that provision does not set out conditions that are different from customary international law in this regard.69 The Sempra tribunal recognised that a treaty regime, specifically dealing with a given matter, would prevail over the general rules of customary international law.70 However, the tribunal held that since, in the present case, the treaty itself does not provide the legal elements required for the invocation of state of necessity, recourse must be made to customary international law to address the question of necessity.71 63  On the relationship between international investment law and trade law, see ME Footer, ‘On the Laws of Attraction: Examining the Relationship between Foreign Investment and International Trade’ in Echandi and Sauvé (n 39). 64  CMS v Argentina (n 11) para 304 onwards. 65  ibid, paras 353–78. 66 ibid. 67  ibid, para 357. 68  Enron v Argentina (n 12) paras 333–34. 69  ibid, para 339. See also the discussion in Newcombe and Paradell (n 5) 494–95 70  ibid, para 378. 71 ibid.

Security in International Investment Law 285 The interpretative methodology followed by these tribunals has been described as the method of confluence72 and has been subjected to ­criticism.73 It has been forcefully argued that if host states merely intended the NPM provision to refer to the necessity defence in customary international law, then there was no need to have such a provision in the first place because the customary international law defence of necessity is available to host states anyway.74 Even if the two norms (treaty-based and customary international law) appear indistinguishable in content, they retain an autonomous life of their own.75 Further criticism of this approach has come from the CMS annulment committee. The annulment committee pointed to the main conceptual difference between the treaty-based and customary international law norms. This difference is related to Article XI being an exception to the treaty, whereas necessity under customary international law precludes the wrongfulness of the state.76 The CMS annulment committee stated that Article XI is a threshold requirement in the sense that, if it applies, then the substantive obligations given in the BIT are inapplicable.77 On the other hand, the state of necessity under Article 25 ILC Draft Articles is grounds for precluding wrongfulness of an act not in conformity with international obligations and thus is different from an NPM provision in a BIT, which is specific to the investment treaty.78 The CMS annulment committee also pointed out that the necessity condition in Article 25 ILC Draft Articles is subordinated to four conditions, which are not present in the NPM provision in US-Argentina BIT.79 The LG&E tribunal differed from the three tribunals in its interpretative methodology when analysing the Argentinean measure.80 It first 72 

Kurtz (n 8) 341. Burke-White and A von Staden, ‘Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties’ (2008) 48 Virginia Journal of International Law 307; Kurtz (n 8); G ­Bottini, ‘Protection of Essential Interests in the BIT era’ in T Weiler et al (eds), Investment Treaty ­Arbitration and International Law (New York, Juris Publishing, 2008). For a detailed discussion of these cases, see Bjorklund (n 35); for support for these three tribunals, see Alvarez and Khamsi (n 6). 74  Burke-White and von Staden (n 73) 344. 75  ibid, 323. 76  Newcombe and Paradell (n 5) 495. 77 ibid. CMS Gas Transmission Co v Argentina, ICISD Case No ARB/01/8, Annulment ­Proceeding (25 September 2007) para 129. 78  CMS v Argentina (n 77). Dolzer and Schreuer (n 4) 189 point out that this interpretation provides less protection to the foreign investor than under customary international law. 79  Dolzer and Schreuer (n 4) 189 criticise the CMS annulment committee for going beyond its proper role by laying down the proper understanding of Article XI of the US-Argentina BIT. 80  For differences between the LG&E and CMS tribunals, mainly on the issues of the burden of proof and compensation, see SW Schill, ‘International Investment Law and the Host State’s Power to Handle Economic Crises—Comment on the ICSID Decision in LG&E v Argentina’ (2007) 24(3) Journal of International Arbitration 265. 73  WW

286  Prabhash Ranjan used the NPM provision and subsequently used Article 25 ILC Draft Articles to confirm its conclusion reached under the NPM measure.81 The tribunal held that conditions in Argentina were such that the economic response adopted by Argentina was in accordance with Article XI of the ­US-Argentina­BIT and thus excused Argentina from alleged treaty violations for a period from 1 December 2001 to 26 April 2003.82 The tribunal then referred to Article 25 ILC Draft Articles to support its c­ onclusions.83 This ­methodology of the LG&E tribunal is puzzling. If a measure is found to be in accordance with the NPM provision, then there is no need to find support for it from Article 25 ILC Draft Articles because, as m ­ entioned above, these two defences are separate.84 The tribunal in El Paso v Argentina also relied on the customary international law defence of necessity to interpret ‘necessary’ in Article XI. However, it did not follow the method of confluence to interpret ‘necessary’ in the BIT, though it reached the same conclusion as the CMS, Enron and Sempra tribunals. The El Paso tribunal relied on ‘concepts used in Article 25 of the Draft Articles’ to interpret Article XI of the US-Argentina BIT.85 The tribunal held that the requirement of ‘necessity’ under Article XI of the US-Argentina BIT ‘presupposes that the State has not contributed, by acts or omissions, to creating the situation which it relies on when claiming the lawfulness of its measures’.86 The tribunal supported this conclusion by using Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) to borrow from Article 25(2)(b) ILC Draft Articles (a state cannot use the ground of necessity if it has contributed to the situation) and to read it into Article XI of the US-Argentina BIT.87 It should be recalled that Article 31(3)(c) VCLT provides for ‘any relevant rules of international law applicable in the relations between the parties’ in the interpretation of a treaty provision. The El Paso tribunal concluded that Article 25(2)(b) is a general rule of international law and hence a ‘relevant rule’ under Article 31(3)(c) VCLT.88 81 

Reinisch (n 25) 208. LG&E v Argentina (n 14) para 245. 83  ibid and paras 257–59. 84  See also Kurtz’s criticism of the LG&E tribunal on this point (n 8) 355–56. 85  El Paso v Argentina (n 16) para 613. 86 ibid. On using Article 25 of the ILC Draft Articles on State Responsibility to interpret ‘necessary’ in the NPM provision occurring in the US-Argentina BIT, see R Dolzer, ‘­Emergency Clauses in Investment Treaties: Four Versions’ in MH Arsanjani et al (eds), Looking to the Future: Essays on International Law in Honour of WM Reisman (Leiden, Martinus Nijhoff, 2011) 715–16; F Orrego Vicuña, ‘Softening Necessity’ in Arsanjani et al, ibid, 741–50. 87  El Paso v Argentina (n 16) paras 613–26. 88  ibid, paras 613–21. The tribunal in El Paso v Argentina (n 16) also went on to show, very summarily, that Article 25(2)(b) ILC Draft Articles on State Responsibility is a ‘general principle of law recognised by civilized nations’ by citing the UNIDROIT Principles on International Commercial Contracts in support of its conclusion (n 16) para 623. The Continental Casualty tribunal had said that this particular provision of the customary international law 82 

Security in International Investment Law 287 On this basis, it concluded that a state cannot invoke the treaty defence of ‘necessity’ if it has itself created such necessity or has substantially contributed to it.89 Thus, the majority of the tribunal, in a severe indictment of the sovereign ability of Argentina to adopt economic policies that it preferred, concluded that since Argentina had contributed to the economic crisis by adopting faulty economic policies, it could not invoke the ‘necessary’ defence given in the BIT. This was notwithstanding the existence of an extremely severe political, economic and social situation.90 This conclusion is the same as the one reached by other investment arbitration tribunals in relying on the necessity defence in customary international law. The tribunal’s cursory analysis of a suitable treaty interpretation methodology raises a number of conceptual questions. First, does Article 31(3) (c) VCLT, which has been widely hailed as an instrument to bring about systemic integration of international law,91 allow for the importation and application of a customary international law ‘norm’ into the treaty ‘norm’ in a manner that blurs the distinction between the two norms? The c­ hapeau of Article 31(3), which states that while interpreting a treaty, interpretative materials shall be ‘taken into account’ ‘together with the context’, is important in this regard. In other words, even if customary international law is the ‘relevant rule of international law applicable in relation between the parties’, its weight in the interpretative process will be decided using the chapeau.92 The interpretative materials introduced by Article 31(3)(c) VCLT ‘carry (only) the same interpretative weight as the context’.93 The El Paso v Argentina tribunal did not discuss the interpretative weight to be given to this ‘relevant rule’, keeping the context of the BIT in mind. Instead, it ‘applied’ the customary norm, completely ignoring the fact that, in the application of Article 31(3)(c) VCLT, the treaty being interpreted retains a primary role, whereas the customary international law norm has a secondary role in the sense that the customary norm

defence of necessity ‘cannot be the yardstick as to the application of Art. XI of the BIT’ (n 3) para 234. See also A Martinez, ‘Invoking State Defences in Investment Treaty Arbitration’ in M Waibel et al (eds), The Backlash Against Investment Treaty Arbitration (The Hague, Kluwer Law International, 2010) 323. 89 

El Paso v Argentina (n 16) para 624. ibid, para 656. 91  C McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54(2) International and Comparative Law Quarterly 279. 92 M Paparinskis, ‘Investment Treaty Interpretation and Customary Law: Preliminary Remarks’ in C Brown and K Miles (eds), Evolution in Investment Treaty Law and Arbitration (Cambridge, Cambridge University Press, 2011) 73. 93 ibid. 90 

288  Prabhash Ranjan can neither wholly nor partially displace the treaty norm.94 The El Paso ­tribunal’s analysis partially displaces the treaty norm of ‘necessity’ with the customary ‘norm’ of necessity, thereby disregarding the differences in the ‘­context’ between the two.95 Second, the El Paso tribunal’s reasoning leaves one wondering why only Article 25(2)(b) ILC Draft Articles was discussed as a ‘relevant rule’ under Article 31(3)(c) VCLT to interpret ‘necessary’ in the NPM provision. Article 25 ILC Draft Articles, as mentioned above, provides four conditions, related to the invocation of ‘necessity’, including the fact that a state cannot invoke necessity if it has contributed to the situation of necessity. Thus, why are other conditions, like the one given in Article 25(1)(a) that requires that the invoked measure must be ‘the only way’ for the state to safeguard its essential interests, not relevant under Article 31(3)(c) in interpreting Article XI of the US-Argentina BIT?96 Third, while the tribunal used all the treaty interpretation rules given in Article 31 VCLT in deciding whether Article XI of the US-Argentina BIT is self-judging in character,97 it primarily relied only on Article 31(3)(c) VCLT to interpret ‘necessary’ under Article XI. It did not elaborate on the other tools of treaty interpretation given in Article 31 VCLT, such as the ‘context’ to interpret the treaty defence of ‘necessity’. Fourth, the El Paso tribunal’s reliance on the LG&E tribunal, to support its conclusion that necessity under the US-Argentina BIT pre-supposes that the state has not contributed to the situation of necessity, is misplaced. The LG&E tribunal did not use Article 25 ILC Draft Articles to interpret ‘necessity’ in Article XI of the US-Argentina BIT. It interpreted Article XI and reached the conclusion that the ‘protections afforded by Article XI have been triggered in this case, and are sufficient to excuse Argentina’s liability’.98 After reaching this conclusion, as mentioned above, the t­ ribunal used Article 25 to show that Argentina’s necessity defence also met the customary international law standard. The approach of the LG&E tribunal

94 P Sands, ‘Treaty Custom and Cross-Fertilization of International Law’ (1998) 1 Yale Human Rights and Development Law Journal 85, 103. See also M Samson, ‘High Hopes, Scant Resources: A Word of Scepticism about the Anti-Fragmentation Function of Article 31(3)(c) of the Vienna Convention on the Law of Treaties’ (2011) 24(3) Leiden Journal of International Law 701. 95  See Burke-White and von Staden (n 58) 296; see also C Binder, ‘Changed Circumstances in Investment Law: Interfaces between the Law of Treaties and the Law of State Responsibility with a Special Focus on the Argentine Crisis’ in C Binder et al (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford, Oxford University Press, 2009) 617–20 for the argument that the potential of Article 31(3)(c) of the VCLT to reconcile treaty and customary law standards, in the case of necessity, is limited. 96  See Gazzini (n 36). 97  El Paso v Argentina (n 16) paras 588–610. 98  LG&E v Argentina (n 14) para 245.

Security in International Investment Law 289 is quite different from applying Article 25(2)(b) ILC Draft Articles to interpret Article XI of the US-Argentina BIT,99 as the El Paso tribunal did.100 The Continental Casualty v Argentina tribunal, like the CMS annulment committee, distinguished between the treaty defence and the customary international law defence. It also made it clear that the situations regulated by Article 25 ILC Draft Articles are different from those regulated by the NPM provision in the US-Argentina BIT.101 The tribunal viewed the strict conditions given in Article 25 ILC Draft Articles as exceptional in nature because they can be invoked in any context against any international ­obligation.102 Thus, the tribunal held that invocation of the NPM provision (in the US-Argentina BIT), limiting the general investment protection obligations, is not necessarily subject to the same conditions of application as the customary international law defence of necessity.103 The tribunal also said that in such situations of grave crisis, a state must be accorded a significant margin of appreciation.104 The Continental Casualty tribunal embraced the WTO jurisprudence on ‘necessary’ in Article XX of GATT 1994105 to find the meaning of ‘necessary’ in Article XI of the US-Argentina BIT.106 Before discussing how the Continental Casualty tribunal applied WTO jurisprudence, the WTO jurisprudence on ‘necessary’ in Article XX of

99 

El Paso v Argentina (n 16) para 619. It will be recalled that the Continental Casualty tribunal had said this particular provision of the customary international law defence of necessity ‘cannot be the yardstick as to the application of Art. XI of the BIT’ (n 3) para 234 and Martinez (n 88) 323. 101  Continental Casualty v Argentina (n 3) para 167. See also Sempra Energy International v Argentina, ICSID Case No ARB/02/16, Annulment Proceeding (29 June 2010) paras 198–200 and Dolzer (n 86) 705. 102  Sempra v Argentina (n 101) paras 198–200. 103  Sempra v Argentina (n 101) paras 198–200. For arguments in support of the approach adopted by the Continental Casualty tribunal to discover the legal nature of the NPM in ­US-Argentina BIT, see Gazzini (n 36) 7. 104  Continental Casualty v Argentina (n 3) para 181. For views supporting the margin of appreciation as the appropriate standard of review in the context of BIT disputes, see BurkeWhite and von Staden (n 58). 105  On WTO’s jurisprudence on ‘necessary’, see Appellate Body Report, Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef WT/DS 161 and WT/DS169/AB/R (adopted 10 January 2001); Appellate Body Report, Dominican Republic—Measures Affecting the Importation and Internal Sale of Cigarettes WT/DS320/AB/R (adopted 19 May 2005); Appellate Body Report, US—Measures Affecting the Cross-Border Supply of Gambling and Betting WT/DS/285/ AB/R (adopted 20 April 2005); Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres WT/DS332/AB/R (17 December 2007) [hereinafter Brazil-Tyres]. 106  Continental Casualty v Argentina (n 3) paras 192–95. The use of WTO jurisprudence to interpret ‘necessary’ in Article XI of the US-Argentina BIT has been criticised, see JE Alvarez and T Brink, ‘Revisiting the Necessity Defence: Continental Casualty v Argentina’ (2010–11) 2 Oxford Yearbook of International Investment Law and Policy 319. The use of WTO rules to interpret Article XI of the US-Argentina BIT was one of the grounds on which annulment of the award was sought, although the annulment committee in Continental Casualty did not annul the award on this ground; see Continental Casualty Company v Argentina, ICSID Case No ARB/03/9, Annulment Proceeding (16 September 2011) para 132. 100 

290  Prabhash Ranjan GATT 1994, which in essence involves a three-step test, will be briefly examined. First, the measures must have an objective, which is recognised under the list of exceptions given in Article XX of GATT 1994. Second, the panel should weigh and balance the degree to which the measure in question achieves its objective, with the extent to which the measure restricts international trade in the context of the overall significance of the regulatory objective sought to be achieved. Third, if this yields a preliminary conclusion of the measure being ‘necessary’, then the panel should compare this measure with other least trade restrictive measures that are reasonably available to the importing Member.107 The WTO’s necessity test represents a variant of the three-step proportionality analysis.108 These steps are as follows. First, whether the measure is suitable for the legitimate public purpose—this will require a causal link between the measure and its object.109 Second, whether the measure is necessary (ie whether there is a less investment-restrictive alternative measure reasonably available that will achieve the same objective). The third step will involve proportionality stricto sensu (ie weighing and balancing the importance of the permissible objective sought to be achieved with the restriction on trade).110 Although weighing and balancing in the WTO’s necessity test is not the same as proportionality stricto sensu,111 it has been criticised by many because it allows the WTO adjudicator to replace the importing country’s assessment with their own assessment.112 The Continental Casualty tribunal applied the WTO jurisprudence to determine whether Argentina’s measures satisfied the test of ‘necessity’ by asking the following questions: whether the measures contributed 107 AD Mitchell and C Henckels, ‘Variations on a Theme: Comparing the Concept of Necessity in International Investment Law and WTO Law’ (2013) 14(1) Chicago Journal of International Law 93; MM Du, ‘Autonomy in Setting Appropriate Level of Protection under the WTO Law: Rhetoric or Reality?’ (2010) 13(4) Journal of International Economic Law 1077, 1093. 108  B Kingsbury and SW Schill, ‘Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—the Concept of Proportionality’ in SW Schill (ed), International Investment Law and Comparative Public Law (Oxford, Oxford University Press, 2010) 85–88. 109  ibid. Also see JH Jans, ‘Proportionality Revisited’ (2000) 27(30) Legal Issues of Economic Integration 239, 240. 110  Kingsbury and Schill (n 108) 85–88. 111  For views supporting the use of the proportionality analysis framework in context of BIT disputes to review state action, see Stone Sweet (n 61) 48. 112 See J Neumann and E Türk, ‘Necessity Revisited: Proportionality in World Trade Organization Law After Korea—Beef, EC—Asbestos and EC—Sardines’ (2003) 37(1) Journal of World Trade 199, 232–33; P Van den Bossche, ‘Looking for Proportionality in WTO Law’ (2008) 35(3) Legal Issues of Economic Integration 283, 284; C Bown and J Trachtman, ‘Brazil— Measures Affecting Imports of Retreaded Tyres: A Balancing Act’ (2009) 8(1) World Trade Review 85; DH Regan, ‘The Meaning of ‘Necessary’ in GATT Article XX and GATS Article XIV: The Myth of Cost-Benefit Balancing’ (2007) 6(3) World Trade Review 347, 348; Du (n 107) 1093. For a different view, see M Trebilcock, R Howse and A Eliason, The Regulation of International Trade, 4th edn (London, Routledge, 2013) 683–84.

Security in International Investment Law 291 materially to the realisation of essential security interests (the legitimate aim under Article XI)113 and whether there existed alternative measures reasonably available to Argentina, ‘which were less in conflict or more compliant with its international obligations, while providing an equivalent contribution to the achievement of the objective pursued’.114 The tribunal answered the first question in the affirmative, by stating that there is a genuine means-end relationship between the measures and the objective,115 and the second question negatively116 and thus came to the conclusion that measures adopted by Argentina were ‘necessary’ to protect its essential security interests.117 It is important to note the fact that the tribunal only undertook a ‘means-end relationship’ analysis but did not weigh and balance the significance of the objective with the restrictive impact on investment.118 This could be explained by the reliance of the Continental Casualty tribunal on the ‘margin of appreciation’ standard to review Argentina’s measure.119 The Continental Casualty tribunal provided a robust interpretative framework to interpret ‘necessary’ in the ‘essential security interest’ exception of the kind found in Article XI of the US-Argentina BIT. It was of the view that an investment arbitration tribunal, while deciding on whether measures adopted are ‘necessary’ to achieve ‘essential security interests’, should not engage in finding out how the benefit of the goal would balance against the restrictive effect on the investment.120 Accordingly, an investment arbitration tribunal lacks the institutional competence to undertake such balancing, which is akin to a fully-fledged proportionality analysis.121 Investment arbitration tribunals are not embedded in the political and social system of the communities about whose disputes they are called upon to decide122 and they have no, or only inadequate, knowledge of

113 

Continental Casualty v Argentina (n 3) para 196. ibid, para 198; see also Brazil-Tyres (n 105) para 156. 115  Continental Casualty v Argentina (n 3) para 197. 116  ibid, paras 200–19. 117  The only measure of Argentina that the Continental Casualty tribunal found that did not satisfy the requirements of ‘necessity’ was related to the restructuring of the Treasury bills (n 3) para 221. 118  Stone Sweet (n 61) 73 describes this as a mature form of proportionality analysis. 119  Continental Casualty v Argentina (n 3) paras 181 and 187. See Burke-White and von Staden (n 58) 326–27. 120  Kurtz (n 8) 369. 121 ibid. 122  Burke-White and von Staden (n 58) 323; Vaughan Lowe, ‘Regulation or Expropriation’ (2002) 55 Current Legal Problems 447, 464–65. Even those who advocate the use of the proportionality test in investment treaty arbitration accept this criticism of the proportionality test; see Kingsbury and Schill (n 108) 104. The response to overcoming these problems is not very satisfactory as they mostly relate to adopting the proportionality test and using it because other alternatives are not useful. 114 

292  Prabhash Ranjan the overall legal, political and social context related to the dispute.123 This position makes them less suitable to adopt an intrusive review of the kind contained in a fully-fledged proportionality analysis.124 D. Essential Security Interests in BITs Containing Self-Judging Language The issue of protecting security interests in those BITs that not only contain a ‘security interests’ exception, which is self-judging but also contain a list of activities related to ‘essential security interests’, is now examined.125 In order to understand this issue, an example from the investment chapter in the India-Korea Free Trade Agreement,126 which contains such a provision, is taken. Article 10.18(2) of India-Korea BIT provides that Nothing in this Chapter shall be construed (a) to require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; (b) to prevent a Party from taking any actions which it considers necessary for the protection of its essential security interests; (i) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials or relating to the ­supply of services as carried on, directly or indirectly, for the purpose of supplying or provisioning a military establishment; (ii) taken in time of war or other emergency in international relations; (iii) relating to fissionable and fissionable materials or the materials from which they are derived; or (iv) to protect critical public infrastructures for communications, power and water supply from deliberate attempts intended to disable or degrade such infrastructures.

123  It is also argued that investment treaty arbitration is heavily influenced by the style and culture of international commercial arbitration and the arbitrators are not grounded in public international law, nor are they trained to settle public law questions; see T Wälde, ‘Interpreting Investment Treaties: Experiences and Examples’ in C Binder et al (n 95) 725–26. 124  Burke-White and von Staden (n 58) 323. 125  This discussion draws on the author’s previous work, see P Ranjan, ‘Non Precluded Measures in India’s International Investment Agreements and India’s Regulatory Power as a Host Nation’ (2012) 2(1) Asian Journal of International Law 29. 126 Comprehensive Economic Partnership Agreement between Republic of India and Korea (signed 7 August 2009) [hereinafter India-Korea BIT] http://commerce.nic.in/trade/ INDIA%20KOREA%20CEPA%202009.pdf.

Security in International Investment Law 293 Similar provision exists in the investment chapters of the China-ASEAN FTA127 (Article 17); the China-New Zealand FTA128 (Article 201); the JapanSingapore New Age Economic Partnership Agreement129 (­ Article 4); the Canada-Peru BIT130 (Article 10.4); the Australia Singapore FTA131 (­Article 22 of the investment chapter). Article 23.2 of the US-Chile FTA132 only contains the equivalent of Article 10.18(2)(a) but not Article 10.18(2) (b) of the India-Korea BIT.133 Article 10.18(2)(b) of the India-Korea BIT is almost a mirror image of Article XXI(b) GATT 1994. Article XXI(b) GATT provides Nothing in this Agreement shall be construed (b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests (i) relating to fissionable materials or the materials from which they are derived; (ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment; (iii) taken in time of war or other emergency in international relations;

Article 10.18(2)(b) of the India-Korea BIT provides that nothing in the investment chapter shall be construed to prevent a party from taking any actions ‘which it considers’ necessary for the protection of its ‘essential security interests’. This chapeau is then followed by a list of activities related to ‘essential security interests’. The presence of the phrase, ‘which it considers’ before ‘necessary’ in this particular BIT means that the host state can self-judge or unilaterally determine whether the measures are

127  Agreement on Investment of the Framework Agreement on Comprehensive ­Economic Cooperation between the Association of South East Asian Nations and the ­ People’s Republic of China (signed 15 August 2009) http://fta.mofcom.gov.cn/inforimages/ 200908/20090817113007764.pdf. 128 Free Trade Agreement between the Government of New Zealand and the Government of the People’s Republic of China (signed in 2008) www.chinafta.govt.nz/1-Theagreement/2-Text-of-the-agreement/0-downloads/NZ-ChinaFTA-Agreement-text.pdf. 129 Agreement Between Japan and the Republic of Singapore for a New Age Economic Partnership (signed 13 January 2002) www.mofa.go.jp/region/asia-paci/singapore/jsepa-1. pdf. 130 Agreement Between Canada and the Republic of Peru for the Promotion and ­Protection of Investment (signed 14 November 2006) www.treaty-accord.gc.ca/text-texte. aspx?id=105078. 131  Singapore-Australia Free Trade Agreement (enforced 28 July 2003) www.fta.gov.sg/ fta_safta.asp?hl=4. 132  United States-Chile Free Trade Agreement (enforced 1 January 2004) www.ustr.gov/ trade-agreements/free-trade-agreements/chile-fta/final-text. 133 For more on the presence of such clauses in International Investment Agreements, see A Newcombe, ‘General Exceptions in International Investment Agreements’ in M-C ­Cordonier Segger et al (eds), Sustainable Development in World Investment Law (The Hague, Kluwer Law International, 2011) 351.

294  Prabhash Ranjan ‘necessary’ to protect ‘essential security interests’. This confers significant deference on the host state.134 An interesting question that may arise in this regard is whether the selfjudging language also applies when identifying what is an ‘essential security interest’. In other words, is the right of the host state to undertake an unilateral assessment limited to determining the actions necessary for the protection of ‘essential security interests’ or does it also extend to determining what is an ‘essential security interest’ in the first place? This question can be answered by carefully examining the language of Article 10.18(2)(a) of the India-Korea BIT, which states that the host state is not required to furnish any information, the disclosure of ‘which it ­considers’ contrary to its ‘essential security interest’. In other words, as per this provision, the host state has the right to self-judge or unilaterally assess whether the disclosure of information is contrary to its ‘essential security interest’. However, the host state can self-judge this question only if it is also allowed to self-judge what is an ‘essential security interest’ in the first place. Without having the right to self-judge what is an ‘essential security interest’, the host state’s right to self-judge the question of whether to disclose a particular piece of information to protect an ‘essential security interest’ would be meaningless. Hence, if the host state can determine ‘essential security interests’ under sub-paragraph (a), unilaterally, then it should also be allowed to selfjudge what constitutes an ‘essential security interest’ under sub clause (b). It would be unusual if the host state is allowed to determine ‘essential security interest’ under paragraph (a) but not under paragraph (b).135 Notwithstanding the above argument, there is a fundamental difference in sub-paragraph (a) and sub-paragraph (b) of the India-Korea BIT. Sub-paragraph (a) does not provide a list of activities related to ‘essential security interests’, whereas in sub-paragraph (b), ‘essential security interests’ is related to a list of activities and situations. This list contains all military-type threats or situations where the security of the state is endangered due to a war and also other things related to nuclear materials and protection of critical public infrastructure. Thus, arguably, in sub-paragraph (a) ‘essential security interests’ has a broader scope when compared to sub-paragraph (b). This means that the argument of the selfjudging ‘essential security interests’ in sub-paragraph (a) does not apply to sub-paragraph (b). Furthermore, ‘which it considers’ (the self-judging phrase) is placed between ‘taking any actions’ and ‘necessary’. Thus, India can only decide 134 

Burke-White and von Staden (n 73) 369. this regard, see also the arguments on Article XXI of GATT 1994 in D Akande and S Williams, ‘International Adjudication on National Security Issues: What Role for the WTO?’ (2003) 43(2) Virginia Journal of International Law 365, 397. 135  In

Security in International Investment Law 295 the necessary measures to be adopted for the protection of its essential security interests. There is nothing in the provision to show that the host state also has to decide, on its own, what constitutes an essential security interest for the purpose of sub-paragraph (b). Thus, arguably an ‘essential security interest’ can be self-determined by the host state in sub-paragraph (a) but not in sub-paragraph (b), which contains a list of activities related to ‘essential security interests’. Even in sub-paragraph (a), where the host state can unilaterally determine what an ‘essential security interest’ is, this unilateral determination should be restricted to strict security-related activities of the kind given in sub-paragraph (b). The reason for this is that the India-Korea BIT contains a separate general exception clause that allows the host state to deviate from its BIT obligations for situations such as public health and the conservation of exhaustible natural resources.136 In other words, in the case of a public health emergency, the host state does not need the ‘essential security interests’ exception and can rely on the ‘public health’ permissible objective occurring in the ‘non security’ part of the non-precluding measures provision in the BIT. Thus, the clear intention of the states is to restrict the ‘essential security interest’ exception in the BIT strictly to security-related ‘essential interests’ only. III.  PROTECTING SECURITY INTERESTS IN THOSE BITs THAT DO NOT CONTAIN AN ‘ESSENTIAL SECURITY INTERESTS’ EXCEPTION

So far this chapter has discussed the issue of protecting security interests in international investment law in situations where the BIT contains an exception in the form of an ‘essential security interests’ clause. It now focuses on situations where the BIT does not contain a ‘security interests’ exception. How states can protect their security interests in disputes arising under such BITs will now be examined. In order to understand this issue, the focus is again on BIT disputes against Argentina where foreign investors challenged Argentina’s regulatory measures to tackle the severe economic crisis that engulfed the entire country in early 2000. Apart from US investors, investors from other states, such as the UK, Italy and France, also brought claims against Argentina. While US investors relied on the US-Argentina BIT, other investors relied on other similar treaties, like the UK-Argentina BIT, the Italy-Argentina BIT and the France-Argentina BIT. A critical distinction between the US-Argentina BIT and other BITs signed by Argentina is the presence of a ‘security interests’ exception in the ­former and an absence in the latter set of treaties. BIT disputes involving such treaties are the focus of this section. 136 

See India-Korea BIT (n 126) Article 10.18 (1).

296  Prabhash Ranjan In BG Group Plc v Argentina,137 a UK company brought a case against Argentina under the UK-Argentina BIT alleging that a series of Argentinean regulatory measures to address serious macroeconomic ­ concerns severely impacted its investment. Thus, BG Group argued that Argentina violated many provisions of the UK-Argentina BIT, such as the fair and equitable treatment provision. Argentina, on the other hand, defended its measures by arguing that such measures were necessary to protect ­Argentina from a severe economic, social and political ­crisis.138 Argentina relied on Article 4 of the UK-Argentina BIT to make this defence. Article 4 of UK-Argentina provides: Investors of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection or riot or resulting from arbitrary action by the authorities in the territory of the latter Contracting Party shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable than that which the latter Contracting Party accords to its own investors or to investors of any third State. Resulting payments shall be freely transferable.

However, the tribunal held that Article 4 of the UK-Argentina BIT does not give any ‘state of emergency’ defence to Argentina.139 Instead, it is merely concerned with offering treatment no less favourable to a foreign investor in the situation where nationals of the host state or investors of any other state are indemnified, compensated, or benefit from a ­settlement.140 Thus, according to the tribunal, the BIT expressly mandates for liability and compensation and does not excuse it.141 Argentina also argued that the principle reflected in Article XI of the USArgentina BIT ‘exists regardless of its inclusion in the BIT’.142 ­Argentina argued that a BIT cannot prohibit a state from adopting such measures as it deems necessary to maintain public order and guarantee the protection of its ‘essential security interests’.143 However, the tribunal did not agree with Argentina. It held that there is no support for the argument that, in the absence of an express provision (the UK-Argentina BIT does not contain a provision analogous to Article XI of the US-Argentina BIT), Article XI of the US-Argentina BIT should be automatically read into the

137  BG Group Plc v Argentina, UNCITRAL Arbitration Rules, Final Award (24 December 2007). 138  ibid, para 367. 139 ibid, para 381–84; see also CMS v Argentina (n 11) para 375 and Enron v Argentina (n 12) para 320. 140  BG Group Plc v Argentina (n 137) para 381. 141 ibid. 142  ibid, para 373. 143 ibid.

Security in International Investment Law 297 UK-Argentina BIT.144 In other words, there is no automatic reading of the ‘essential security interests’ exception into a BIT that specifically does not include such an exception. The tribunal then examined Argentina’s defence under the customary international law of necessity and came to the conclusion that Argentina’s measures aimed at addressing a severe economic crisis cannot be excused under Article 25 ILC Draft Articles.145 This issue also arose in another case called AWG v Argentina,146 which saw investors from three different states bringing claims against ­Argentina under three different BITs—Suez and Vivendi, both incorporated in France, claimed rights under the Argentina-France BIT, AGBAR, incorporated in Spain, invoked its rights under the Argentina-Spain BIT, and AWG, incorporated in the United Kingdom, invoked the ­Argentina-UK BIT. These companies, incorporated in different states, were shareholders in a company incorporated in Argentina, whose investment in water distribution and wastewater treatment services was impacted due to ­Argentina’s regulatory measures.147 In this case, once the tribunal found that Argentina had violated the substantive BIT obligations, Argentina argued that its regulatory ­measures were necessary to deal with the severe economic crisis.148 While the tribunal recognised the severity of the crisis, it held that this alone was not sufficient to excuse Argentina of its international obligations.149 The tribunal examined Argentina’s defence under Article 25 ILC Draft Articles and came to the conclusion that, since the regulatory measures adopted by Argentina were not the only means available to Argentina to tackle the financial crisis and since Argentina itself contributed to the crisis, the ­Article 25 defence was not an available defence.150 The tribunal also held that since the applicable BITs do not contain a ‘security interests’ exception of the kind present in the US-Argentina BIT, Argentina could not claim any defence under those BITs.151 Likewise, in Impregilo v Argentina,152 which involved the ArgentinaItaly BIT, after it was determined that Argentina had violated substantive BIT obligations like the fair and equitable treatment, the tribunal

144 

ibid, paras 385–86. ibid, paras 407–12. 146  AWG Group v Argentina, ICSID Case No ARB/03/19, Decision on Liability (30 July 2012); see also Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v The Argentine Republic, ICSID Case No ARB/03/19, Decision on Liability (30 July 2012). 147  AWG v Argentina (n 146) para 1. 148  ibid, para 250. 149  ibid, para 258. 150  ibid, paras 259–65. 151  ibid, paras 270–71. 152  Impregilo SpA v The Argentine Republic, ICSID Case No ARB/07/17, Award (21 June 2011). 145 

298  Prabhash Ranjan examined Argentina’s argument that such breaches should be excused because they were necessary to address a severe economic crisis. The tribunal recognised that the economic and financial crisis affecting Argentina was extremely severe.153 However, in the absence of any ‘security exceptions’ clause in the relevant BIT, the tribunal examined Argentina’s defence under the customary international law of necessity and found that ­Argentina did not meet the stringent conditions of Article 25 ILC Draft Articles.154 Similarly in EDF v Argentina,155 the tribunal examined ­Argentina’s necessity defence under Article 25 ILC Draft Articles and rejected it.156 The tribunal noted that the Argentina-France BIT does not contain a ‘security interests’ exception of the Article XI-type present in the US-Argentina BIT.157 The discussion of these cases amply demonstrates that the tribunals have been reluctant to read an Article XI-type ‘security interests’ exception into a BIT when none exists in the first place. In the absence of a ‘security interests’ exception, a regulatory measure adopted to address a security interest, broadly defined, that violates any substantive BIT provision, shall be excused if it falls under Article 25 ILC Draft Articles. It cannot be excused under the BIT. IV. CONCLUSION

On the basis of the discussion above, it can be concluded that in BITs that contain a ‘security interests’ exception but do not define it, ‘security interests’ can be interpreted broadly to include not just strict security-related interests but also other interests, such as economic, health and environmental. However, these interests should be ‘essential’ for them to be described as an ‘essential security interest’ under provisions of the kind in Article XI of US-Argentina BIT. In other words, these interests should meet a high threshold although, as has been seen, there is divergence among the arbitral tribunals that have rendered decisions on Article XI of the US-Argentina BIT concerning this issue. It can also be concluded that

153 

ibid, para 336. paras 344–59. The tribunal also examined Argentina’s defence under Article 4 of the Argentina-Italy BIT, which provides for equality of treatment between foreign and national investment in situations of national emergency. However, like other tribunals, it decided that Argentina cannot make use of such a provision to excuse regulatory measures that violate other substantive BIT obligations. 155  EDF International SA, SAUR International SA and León Participaciones Argentinas SA v The Argentine Republic, ICSID Case No ARB/03/23, Award (11 June 2012). 156  ibid, paras 1163–81. 157  ibid, para 1170. See also Total SA v The Argentine Republic, ICSID Case No ARB/04/01, Decision on Liability (27 December 2010) paras 482–84. 154  ibid,

Security in International Investment Law 299 there is divergence among tribunals on the meaning of the word ‘necessary’. In other words, there are different views on how to determine which measures are ‘necessary’ to protect ‘essential security interests’. These questions are not very challenging for those BITs that contain a detailed ‘security interests’ exception that is self-judging. Although such BITs are yet to be judicially tested, states have made their intent amply clear through detailed provisions that will not pose much of an interpretative challenge to arbitrators. Protecting ‘security interests’ in BITs which do not contain a ‘security interests’ exception, is extremely challenging. As the arbitral jurisprudence shows, in such BITs a regulatory measure ‘necessary’ to protect a ‘security interest’ can be excused if it falls under Article 25 ILC Draft Articles. In view of this, states should consider adopting careful treaty drafting in their BITs. In other words, they should include detailed ‘general exception’ and ‘security exception’ clauses in their BITs. This will ensure that states will not have to show that their measures are necessary under ­Article 25 ILC Draft Articles to protect their security interests.158 States will be able to make use of their treaty defence to protect security interests. The presence of a ‘general exception’ clause covering issues, such as health, environmental and economic-related interests, will ensure that states will not be required to argue for a broad interpretation of the ‘security interests’ exception. States could consider either defining the ‘security exception’ or providing some indication of the situations that would fall under it. The discussion in the second part of the chapter demonstrates examples of such treaty practice, which is currently restricted and not very common. Given the divergence on the interpretation of ‘necessary’, states could also consider providing an annex on how to interpret ‘necessary’, such as stating that ‘necessary means the absence of an alternative less investment-restrictive measure not reasonably available’. Such detailed drafting of treaty provisions will reduce the arbitral discretion and thus the uncertainty regarding the scope of BIT provisions aimed at protecting security interests. This, in turn, would provide greater regulatory latitude to states to safeguard their security interests.

158  For a different viewpoint on the inclusion of General Exception clauses in BITs, see A Newcombe, ‘The Use of General Exceptions in IIAs: Increasing Legitimacy or Uncertainty?’ in A de Mestral and C Lévesque (eds), Improving International Investment Agreements (London, Routledge, 2013) 267.

300

12 Securing the Polar Regions Through International Law JILL BARRETT

I. INTRODUCTION

T

HE ANTARCTIC AND the Arctic face a similar range of potential security risks, from disputes over territory and maritime delimitation, to weapons testing, shipping accidents, marine pollution, ­hazardous waste disposal and competition for living and mineral resources. The sources of the threats are both human and environmental. The consequences could affect both human security and the integrity of the natural world. As well as the intrinsic value of these unique ecosystems, both regions are immensely important for scientific research into our future climate, rising sea levels and the sustainability of our ocean ecosystems. Securing the Polar Regions is therefore vital for the whole world, not only for the states that border the region or are actively involved there.1 Despite the similarities in the threats facing both Poles and the consequences to humanity if they are not addressed, the legal responses have not been coordinated, nor do they even look similar. Scientists have long recognised the importance of bi-polar science, meaning an integrated approach to the study of issues common to both Polar Regions.2 Although these bi-polar scientific initiatives have been welcomed and encouraged by governments, an integrated approach to the international governance of both Polar Regions has not yet been developed in international law.

1 A Hemmings, D Rothwell and K Scott (eds), Antarctic Security in the Twenty-First ­Century (Abingdon, Routledge, 2012); M Byers, International Law and the Arctic (Cambridge, ­Cambridge University Press, 2013), especially Chapter 8 ‘Security’; E Molenaar, A Oude Elferink and D Rothwell (eds), The Law of the Sea and the Polar Regions (The Hague, Martinus Nijhoff, 2013); Sir Arthur Watts, International Law and the Antarctic Treaty System (Cambridge, Cambridge University Press, 1992). 2  See Secretariat of the Antarctic Treaty, ‘Final Report of the Thirty-second Antarctic Treaty Consultative Meeting’ (Baltimore, April 2009) 163 www.ats.aq/documents/ATCM32/fr/ ATCM32_fr002_e.pdf.

302  Jill Barrett The first, and only, legal instrument to address a set of problems common to both Polar Regions is the International Maritime Organization (IMO)’s International Code for Ships Operating in Polar Waters (Polar Code)3— accompanied by treaty provisions—adopted in 2014–15. Its precursor, the IMO Polar Shipping Guidelines 2009, was the first non-binding bi-polar standard-setting instrument. This aside, in legal terms, the two regions are poles apart. The Antarctic Treaty System (ATS) provides comprehensive protection for the security of the region, including provisions for the management of sovereignty disputes, disarmament, demilitarisation and an environmental protection regime based on precaution. It has proved remarkably successful for over 50 years. The urgency of the threats currently facing the Arctic is greater, given the increasing rate of ice melt. Ice-free summers, according to some projections, may only be 20 or so years away, bringing the prospect of rapid increases in navigation, oil and gas exploitation and tourism. Yet, the international governance arrangements for the security of the Arctic and the protection of its environment are much weaker than for the Antarctic. This has led some academics to call for a new Arctic Treaty, modelled on the Antarctic Treaty.4 Does the recent adoption of the IMO Polar Code herald a trend towards convergence of the international regimes governing each Polar region? Could an overarching treaty cover both Poles? Or if not, could some other common approach to both regions be developed that would enhance their security for the future? These are major questions, which need to be addressed from many aspects and disciplines. This chapter seeks to contribute to these ongoing debates by asking what international law is able to contribute to the security of the Polar Regions and how much scope there is to develop a common approach to both regions. Section II considers which aspects of security are most pertinent to the Polar Regions, and explains its main focus on international regime security. Sections III and IV compare how international law relating to each region approaches two questions that are key to regime security: is the outward boundary of the region capable of being defined in international law and if so how? And how open and transparent are the international governance arrangements of each region to new participants? Section V concludes by considering the potential for convergence of the international regimes governing each polar region and whether this

3 IMO document MEPC 68/21/Add.1 Annex 10, page 3. https://edocs.imo.org/Final Documents/English/MEPC 68-21-ADD.1 (E).doc (IMO Polar Code). See also IMO information at: www.imo.org/en/MediaCentre/HotTopics/polar/Pages/default.aspx. 4  Eg, HH Hertell, ‘Arctic Melt: The Tipping Point for an Arctic Treaty’ (2009) 21 Georgetown International Environmental Law Review 565.

Securing Polar Regions Through Int’l Law 303 would help either to respond more effectively to the security challenges of the future. II.  WHAT DOES ‘SECURITY’ MEAN AND HOW CAN INTERNATIONAL LAW CONTRIBUTE TO IT?

Before considering how international law may be able to contribute to the security of the Polar Regions, it is necessary to consider what is meant by ‘security’ in this context. The term ‘security’ is capable of meaning different things to different people. Key questions are security for whom and from what?5 A traditional answer in an international context is ‘security for States, from armed attack by other States or non-State groups such as terrorists’. More recently, the term ‘human security’ has emerged as a way of shifting the focus to other threats to a state’s security, such as economic, societal and ecological ones. Some writers who use that term also suggest that it is broader and, implicitly, more humanitarian as it aims to ‘focus … attention on the needs of individual human beings, rather than looking at the security needs of the state alone’.6 States are also increasingly focused on a wide range of causes of conflict and their effects on civilian populations as security issues. For example, the thematic issues addressed by the Security Council in recent years include human rights, drug trafficking, terrorism, women, peace and security, energy, climate and natural resources, piracy and health crises.7 Since 9/11 the need to protect the public against terrorist attack, on land, sea and air, has pushed ‘security’ in the traditional sense of defence and policing to the top of political agendas, both internationally and domestically, while issues such as climate change, sustainable development and human rights have, at times, struggled to make progress. It is unsurprising that some people campaigning and researching on these other issues have responded by reframing their subjects in terms of ‘security’ in an effort to emphasise their urgency and importance. In some cases, it may have a tactical objective, such as inserting the issue into top political a­ gendas or making it eligible for the greater amount of resources now available for policy and academic work in fields deemed to be ‘security’ priorities. ‘Environmental security’ emerged as both a concept and a set of policies as a consequence of the end of the Cold War. More recently, climate change

5  D Guilfoyle, ‘Maritime Security’ in J Barrett and R Barnes (eds), Law of the Sea: UNCLOS as a Living Treaty (London, British Institute of International and Comparative Law, 2016). 6  N Klein, Maritime Security and the Law of the Sea (Oxford, Oxford University Press, 2011) 6. 7 Security Council Report website, www.securitycouncilreport.org/thematic-generalissues.php; ‘Highlights of Security Council Practice’ on UN Security Council website, www. un.org/en/sc/documents/highlights.shtml.

304  Jill Barrett has been linked to security by means of the concept of ‘climate security’.8 Another aspect of security to have emerged on the international agenda is ‘Energy security’, defined by the International Energy Agency as ‘the uninterrupted availability of energy sources at an affordable price’.9 In this spirit of taking a holistic approach to the meaning of ‘security’, it may be possible to link most, if not all, international law to one kind of security or another. In the context of the Polar Regions, the ‘security’ agenda could thus be said to encompass all international rules that regulate and guide human conduct. Rules agreed among states are all, in one way or another, designed to minimise the risk of conflict arising between them, or their ­citizens, as they compete for the use or resources of a shared space. ­Academics recently writing about the concept of ‘Antarctic security’ subdivided the subject into international security, state (national) security, regime security, maritime security, environmental, resource and human security. These categories span the law of the sea, fisheries, continental shelf claims, marine pollution, search and rescue, transboundary movements of hazardous wastes, climate change, biological prospecting, intellectual property rights and human rights, as well as the ATS.10 States, on the other hand, do not usually describe international co-operation in relation to Antarctica in security terms. However, one context in which a definitive classification of subject-matter had to be made was when the ‘Question of Antarctica’ was placed on the agenda of the UN General Assembly during the period 1983–2005, as it had to be assigned to one of the Assembly’s Committees. It is significant, but unsurprising, that the First Committee, which deals with ‘Disarmament and International Security’, was chosen. The Antarctic Treaty was designed first and foremost to prevent the outbreak of military conflict between states. Its first-stated objective is ‘that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of discord’ and the first substantive provision prohibits any measures of a military nature.11 In that sense, one could regard everything done by states under the Antarctic Treaty and its related instruments to contribute directly or indirectly to the achievement of this objective. States however rarely make this connection explicitly. For example, the word ‘security’

8  R Floyd, ‘The Environmental Security Debate and its Significance for Climate Change’ (University of Warwick institutional repository, 2008) wrap.warwick.ac.uk/1083/1/WRAP_ Floyd_Floyd_The_Environmental_Security_Debate_WRAP.pdf. 9  International Energy Agency (IEA) website, www.iea.org/topics/energysecurity/. 10  Hemmings, Rothwell and Scott (n 1), see especially Chapter 1 and the Treaties listed at x–xiii. 11 Antarctic Treaty (adopted on 1 December 1959, entered into force 23 June 1961) 402 UNTS 71 (AT) first preambular paragraph and Article 1.

Securing Polar Regions Through Int’l Law 305 is not used once in any of the hundreds of instruments adopted at the Antarctic Treaty Consultative Meeting from 1960 to the present, the main focus of which is on protecting the environment, human safety (from accidents) and living marine resources (from illegal fishing). In the Arctic, security in the traditional sense has presented a range of issues, from the transportation of nuclear weapons by sea and nuclear weapons testing to border disputes, mostly maritime. Many of these issues have been successfully addressed by neighbouring states on a bilateral basis, such that leaders of Arctic States have recently stated that there is little risk of military conflict in the region.12 The most significant security threats today, of the type that concern the defence and law-enforcement forces of states, would seem to be those involving non-state actors, such as drug-smuggling, illegal immigration, terrorism at sea and port security, piracy, political protests against oil and gas infrastructure, trafficking of weapons of mass destruction and illegal fishing. Increased volumes of traffic by commercial and tourist ships have necessitated increases in aeronautical and maritime search and rescue capacity by states in the region.13 If security is considered in its broadest sense in relation to the Arctic, an even wider range of international law is relevant than for the ­Antarctic, due to the presence of states with settled municipal and rural human populations. Despite (or perhaps because of) this, international law commentators have not so far attempted to analyse everything pertaining to the Arctic through a security prism.14 In contrast to the Antarctic Treaty, the Arctic Council, the principal cross-sectoral intergovernmental forum for the region, explicitly excluded military security issues from its remit when it was founded in 1996. It did so by means of a footnote statement that stated ‘The Arctic Council should not deal with matters related to military security’.15 This (non-binding) restriction (on a non-binding document) was apparently included at the insistence of the United States16 with the aim of keeping its agenda predominantly environmental. It has, however, not prevented the gradual broadening of its agenda to include co-operation agreements that involve military services, such as the US

12 

Byers (n 1) 245–48. Byers (n 1) Chapter 8; Molenaar, Oude Elferink and Rothwell (n 1) Chapter 16. 14  Eg, Byers (n 1) leaves it to the last chapter of his book to address security (Chapter 8). Maritime boundaries, continental shelf delimitation, Arctic straits, environmental protection and indigenous peoples are treated as subjects in their own right in separate ­chapters. ­Molenaar, Oude Elferink and Rothwell (n 1) devote only one chapter of their book to ­Maritime Security in the Polar Regions (Chapter 16). 15 Declaration on the Establishment of the Arctic Council (The Ottawa Declaration) (19 September 1996) fn to para 1, www.arctic-council.org/index.php/en/document-archive/ category/4-founding-documents. 16  Byers (n 1) 253. 13 

306  Jill Barrett Coast Guard, which signifies a growing comfort level with co-operation that extends in a limited way beyond civilian agencies.17 Securing the Polar Regions through international law could therefore be considered from a range of security perspectives. Rather than attempt to cover every type of security and the potentially relevant international law rules, the focus of this chapter will be on issues that are central to ‘international regime security’, in which international law necessarily plays a central role.18 This could be defined as the ability of international governance arrangements to survive and adapt to both internal and external challenges and to manage conflict while facilitating progress towards its agreed objectives. A fundamental requirement for regime security for the Polar Regions is that there are rules that define the geographical scope of the regions, without which it is difficult to see how other binding rules relating to the regions could be developed or enforced. Long-term security from external challenges also requires that the regime has political and moral legitimacy in the eyes of the rest of the world—other states, organisations and civil society. III.  IS INTERNATIONAL LAW CAPABLE OF DEFINING THE POLAR REGIONS?

If international law is to develop a coherent approach to the governance of the Polar Regions, it needs to be able to define what and where those regions are. Do they have enough in common for there to be an ‘international law for the polar regions’? Accordingly, this section will examine how the Polar Regions and their boundaries are (or are not) defined in international law. It will explore the relationship between the legal and geographical landscapes of the Polar Regions and consider to what extent these differences impede the development of integrated legal responses to common threats to security. The challenge in defining the ‘polar regions’ lies in the considerable differences in the legal architecture of each region, which reflect the essential geographical facts: Antarctica consists of a land continent asymmetrically centred on the South Pole, 98 per cent of which is covered by an ice sheet, and the surrounding sea and islands. It has no indigenous or settled population. The Arctic, on the other hand, consists of a vast ocean surrounded by eight states and settled populations of around four million, with

17 ET Bloom, ‘The New Arctic Frontier in International Law and Diplomacy’ Keynote Address (British Institute of International and Comparative Law, 19 November 2014) www. biicl.org/arthurwattsevents. 18  ‘Regime security’ is discussed but not defined in Hemmings, Rothwell and Scott (n 1) 9–11.

Securing Polar Regions Through Int’l Law 307 the precise number depending on where the boundary is drawn. They include indigenous people and recent arrivals, hunters and h ­ erders ­living on the land, and city dwellers.19 The way in which each polar region’s boundaries are defined (or not defined) also reflect another key difference between them: the continent of Antarctica is subject to territorial sovereignty disputes held in abeyance by a neutral Antarctic Treaty, whereas the territory surrounding the Arctic Ocean is divided into sectors, each under the undisputed sovereignty of one of eight states.20 A.  How does International Law Define ‘the Polar Regions’? The simple answer is that it does not. There is no universally agreed definition of a ‘polar region’ or of the ‘polar oceans’.21 The term ‘polar’ is used in very few international instruments and, when it is used, it serves to describe rather than define the regions of application. Even the (non-binding) IMO ‘Guidelines for Ships Operating in Polar Waters’,22 which refers to ‘the polar environment’, voyages in ‘polar waters’, ‘polar conditions’ and ‘Polar Class ships’, does not define the term ‘polar’. The definitions section merely states that ‘Polar waters includes both Arctic and Antarctic waters’ and goes on to define ‘Arctic waters’ and ‘Antarctic waters’ separately, in quite different terms.23 Even the IMO’s Polar Code, which, together with the accompanying treaty amendments, constitutes the first legally binding bi-polar instrument, provides no definition for ‘Polar waters’ either. ‘Arctic waters’ and the ‘Antarctic area’ are separately defined, again in quite different terms.24 The Preamble to the Code explains: While Arctic and Antarctic waters have similarities, there are also significant differences. Hence, although the Code is intended to apply as a whole to both

19 ‘Peoples of the Arctic’, Arctic Council website, www.arctic-council.org/index.php/ en/environment-and-people/arctic-peoples/122-peoples-of-the-arctic. See also Byers (n 1) Chapter 7 ‘Indigenous Peoples’. 20  Watts (n 1) Chapter 5; Hemmings, Rothwell and Scott (n 1) especially Chapters 3, 5 and 6; Byers (n 1) especially Chapter 1. 21  Molenaar, Elferink and Rothwell (n 1) 8–15. 22  The ‘Guidelines for Ships Operating in Polar Waters’ are contained in the Annex to IMO Resolution A.1024(26) (adopted on 2 December 2009). www.imo.org/Publications/ Documents/Attachments/Pages%20from%20E190E.pdf. 23  ibid, para G-3.2. 24  Figures illustrating the Antarctic area and Arctic waters, as defined in the International Convention for the Safety of Life at Sea 1974 as amended (SOLAS) Regulations XIV/1.2 and XIV/1.3, respectively, and International Convention for the Prevention of Pollution from Ships 1973 as modified (MARPOL) Annex I, Regulations 1.11.7 and 46.2; Annex II, Regulations 13.8.1 and 21.2; Annex IV, Regulations 17.2 and 17.3; and Annex V, Regulations 1.14.7 and 13.2. IMO Polar Code (n 3) 8–9.

308  Jill Barrett Arctic and Antarctic, the legal and geographical differences between the two areas have been taken into account.25

B.  How does International Law Define ‘Antarctica’? Defining Antarctica is not straightforward, as a number of differing definitions of the area are in general and scientific use. Dictionary definitions of ‘Antarctica’ refer to the land continent,26 which is asymmetrically centred on the South Pole, and lies chiefly within the Antarctic Circle. In some contexts, ‘Antarctica’ refers to the whole region south of the Antarctic Circle (or another boundary), including the sea, but in others, the term ‘Antarctic region’ or ‘The Antarctic’ is used to indicate that the surrounding seas are included. From a scientist’s point of view, there are several possibilities, depending on the subject of study. The ‘Antarctic Circle’ is the northernmost latitude in the Southern Hemisphere at which the sun can remain continuously above or below the horizon for 24 hours. Its latitude is not perfectly fixed but moves with the tilt of the earth’s axis. For 2012, it was the parallel of latitude that runs 66° 33′ 44″° south. For ecologists, the most relevant boundary may be the ‘Antarctic Polar Front’, or ‘Antarctic Convergence’, which marks the location where Antarctic surface waters moving northward sink below sub Antarctic waters. It has been mapped in various ways by various scientists at different times.27 International law has nevertheless solved this conundrum by defining the region by reference to a northern boundary, which is drawn differently in several treaties. There is no conflict among these definitions, as the relevant one depends on the treaty that applies to the issue at hand. The most commonly used Antarctic boundaries are the two established by the ATS, namely: (i) The Antarctic Treaty boundary: 60 degrees South Latitude. (ii) The Convention on the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR) boundary: the Antarctic Convergence (fixed co-ordinates).

25 

IMO Polar Code (n 3) Preamble, para 6, Annex 2, 6. English Dictionary, www.oxforddictionaries.com/definition/english/ Antarctica: ‘A continent around the South Pole, situated mainly within the Antarctic Circle and almost entirely covered by ice sheets’. 27  JK Moore, MR Abbott, and JG Richman, ‘Location and Dynamics of the Antarctic Polar Front from Satellite Sea Surface Temperature Data’ (1999) 104(C2) Journal of Geophysical Research 3059. 26  Oxford

Securing Polar Regions Through Int’l Law 309 The Antarctic Treaty 1959 did not define the term ‘Antarctica’, but instead defined the scope of application of the Treaty as follows: Article VI The provisions of the present Treaty shall apply to the area south of 60º South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.

By referring to ‘the high seas within that area’, Article VI made clear that the Treaty applies to everything in the area, including the high seas. In effect, this is how the Treaty defines ‘Antarctica’. Whatever doubt there may once have been28 was eliminated by the Protocol on ­Environmental Protection to the Antarctic Treaty 1991,29 which provides in Article 1 that: ‘Antarctic Treaty area’ means the area to which the provisions of the ­Antarctic Treaty apply in accordance with Article VI of that Treaty. ­Moreover, Article 3(4) of the Protocol refers to ‘activities in the ­Antarctic Treaty area for which advance notice is required in accordance with ­Article VII (5) of the Antarctic Treaty’. Given that Article VII (5) of the Antarctic Treaty refers to activities in ‘Antarctica’, the effect of Article 3(4) of the Protocol is to provide an interpretation of that term in the Treaty. That it was intended to clarify what the Treaty means, and always has meant, is clear from Article 4 of the Protocol, which states: ‘This Protocol shall supplement the Antarctic Treaty and shall neither modify nor amend that Treaty.’ This is an example of a ‘subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’, which, according to Article 31(1)(3)(a) of the Vienna Convention on the Law of Treaties 1969, is to be taken into account in interpreting the Antarctic Treaty. The CCAMLR,30 another separate treaty within the ATS, applies to marine living resources within a larger area, defined as follows: Article 1(1) This Convention applies to the Antarctic marine living resources of the area south of 60º South latitude and to the Antarctic marine living resources of the

28  Such a doubt was expressed by Watts (n 1) 150. However, he gives no clear reason for his suggestion that the term ‘Antarctica’ may have been intended to refer only to land territory, other than ‘the background of the sensitive and strategically revolutionary character of such a provision at the height of the Cold War confrontation in 1959 and the demilitarisation and denuclearisation provisions of the Treaty)’. His comment may refer to positions held at that time by the United States negotiators; see K Dodds, Pink Ice: Britain and the South Atlantic Empire (International Library of Human Geography, 2002) 89. 29  Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force 14 January 1998) 30 ILM 1455 (1991) (Environmental Protocol). 30 Convention on the Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force 7 April 1982) 1329 UNTS 48.

310  Jill Barrett area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem.

Article 1(4) defines the ‘Antarctic Convergence’ by a set of co-ordinates, thus giving it a fixed meaning that does not accord exactly to the scientific concept of this boundary, which is not fixed. The Antarctic Convergence thus defined is a wavy circle that is mostly north of 60° South latitude, but dips south of it in several places.31 The Convention area includes the whole of the Antarctic Treaty area, plus all the areas north of it up to the Antarctic Convergence.32 Treaties outside the ATS generally use the Antarctic Treaty boundary. This is the approach taken by the IMO. The ‘Antarctic area’ has been designated as a ‘special area’ for the purposes of several IMO conventions, using the definition ‘the Antarctic area means the sea area south of latitude 60°S’.33 The IMO Polar Shipping Guidelines 2009 use the line of latitude of 60° South as the Northern boundary of ‘Antarctic waters’.34 The IMO Polar Code uses the same definition.35 An exceptional case is the International Convention for the Regulation of Whaling (ICRW) Southern Ocean Whale Sanctuary boundary, which is specific to its subject-matter.36

31  Map 13438: Antarctica and the Southern Ocean, Australian Antarctic Division Australia (November 2007) shows the Antarctic Treaty boundary and the Antarctic Convergence (Polar Front) www1.data.antarctica.gov.au/aadc/mapcat/display_map.cfm?map_id=13438. The CCAMLR Convention boundary is shown in ‘Map of the Convention Area’, Schedule of Conservation Measures in Force 2014/15 Season, ix, www.ccamlr.org/en/system/files/ e-schdedule2014-15.pdf. 32 The CAMLR Convention defines the Convention Area as consisting of all waters bounded by the Antarctic Continent to the south, and to the north by a line starting at 50°S 50°W; thence due east to 30°E longitude; thence due north to 45°S latitude; thence due east to 80°E longitude; thence due south to 55°S latitude; thence due east to 150°E longitude; thence due south to 60°S latitude; thence due east to 50°W longitude; thence due north to the starting point. 33 See, eg, Regulation 1, para 11.7, Revised Annex I of MARPOL 73/78 (adopted 15 ­October 2004) MEPC 52/24/Add.2. A list of the Special Areas under MARPOL is published on the website of the IMO www.imo.org/OurWork/Environment/PollutionPrevention/ SpecialAreasUnderMARPOL/Pages/Default.aspx. 34  ‘Guidelines for Ships Operating in Polar Waters’ (n 22) para G-3.4, which reads: ‘G-3.4 Antarctic waters means those waters which are south of 60° S (see figure 2).’ See also the map on page 9 www.imo.org/blast/blastDataHelper.asp?data_id=29985&filename= A1024%2826%29.pdf. 35  IMO Polar Code (n 24). 36  The full co-ordinates are set out in Paragraph 7(b) of the Schedule to the International Convention for the Regulation of Whaling 1946, as amended. The text of the Convention is on the website of the International Whaling Commission, iwc.int/private/downloads/1lv6f vjz06f48wc44w4s4w8gs/Schedule-February-2013.pdf.

Securing Polar Regions Through Int’l Law 311 C. Key Differences Between the Antarctic Treaty and the CCAMLR Boundaries The use of the 60 degree South parallel of latitude as a treaty boundary has a number of advantages. In addition to its simplicity, this line goes right around the globe without passing through any land mass.37 Nor does the Antarctic Treaty area include any sub-Antarctic islands or other land territory under (normal, undisputed) state sovereignty. This avoids the complications that arise in the Arctic where internationally-drawn boundaries have to skirt around populated areas under national administrations. It also leaves out the islands subject to bilateral sovereignty disputes between the UK and Argentina, whose inclusion in a multilateral treaty area may cause unwelcome complications for all Parties. These are no doubt some of the reasons why this method of defining the region is generally regarded as the standard one for international standard-setting. The CCAMLR boundary involves a great deal more legal complexity, in addition to its long definition by reference to a series of co-ordinates. The area includes several sub-Antarctic islands under national sovereignty— Kerguelen and Crozet, which are under undisputed French sovereignty, and South Georgia and the South Sandwich Islands, which are under ­British administration, with sovereignty disputed by Argentina. For those territories, and the adjacent waters under national jurisdiction, the application and enforcement of international conservation measures had to be modified to take account of their status. This was achieved by means of a carefully-crafted Chairman’s statement.38 The subtlety of that statement, and the difficulties arising from its application to new measures, make it unlikely that the Parties concerned would wish to attempt to negotiate a similar statement in another treaty body, especially outside the ATS. These sensitivities are likely to limit the usefulness of the CCAMLR boundary as a possible precedent for wider application.39

37 

Watts (n 1) 148. made by the Chairman on 19 May 1980 regarding the application of the Convention on the Conservation of Antarctic Marine Living Resources to the waters adjacent to Kerguelen and Crozet over which France has jurisdiction and to waters adjacent to other islands within the area to which this Convention applies over which the existence of State sovereignty is recognised by all Contracting Parties’. The text of the statement, to which no objection was made, is included in the Final Act of the Conference on the Conservation of Antarctic Marine Living Resources (Canberra, 7–20 May 1980); Compilation of Key Documents of the Antarctic Treaty System, Volume 1, Secretariat of the Antarctic Treaty (Buenos Aires, 2011). The second part of the title refers to the islands of South Georgia and the South Sandwich Islands, in respect of which all states recognise that there is state sovereignty, but views differ as to whether it resides with the UK or Argentina. See Watts (n 1) 152–53. 39  Nevertheless, in 2009 the US proposed to the 32nd Antarctic Treaty Consultative Meeting (ATCM) the adoption of a resolution urging Antarctic Treaty Parties to recommend the extension of the IMO’s Antarctic Special Area northward to the Antarctic Convergence. 38  ‘Statement

312  Jill Barrett D.  How does International Law Define the ‘Arctic’? ‘Finding or choosing one definition of the Arctic to satisfy all purposes is nearly impossible.’40 This observation has proved to be as true in law as it is in science. There is no universally accepted definition of the Arctic; only several different ones used for different purposes (so the number of states within it varies according to which definition is used). Astronomically, the boundary of the Arctic is the latitude at which the sun does not set on the summer solstice, about 66°32′ N, known as the Arctic or Polar Circle.41 This definition has been used for many things, among them identifying the eight Arctic nations that comprise the Arctic Council. Nonetheless, in biological terms, the Arctic Circle is merely an abstraction. Accordingly, some scientists find it more useful to define the Arctic on the basis of other natural features, such as the arctic tree line, or the 10°C summer isotherm. In the marine environment, the Arctic boundary is also problematic. The meeting point of the relatively warm, salty water from the Atlantic and Pacific Oceans and the colder, less salty waters of the Arctic Ocean varies greatly, from about 63°N in the Canadian Archipelago to 80°N near Svalbard.42 Moreover, due to the location of extensive land areas, there is not a natural Arctic equivalent of the Antarctic Convergence, nor is it possible to draw a politically convenient line of latitude through a sea belt. ­Consequently, no definition has been developed in international law that is suitable for general application. Each international instrument that refers to the Arctic has to formulate its own definition—when one is needed—according to the subject-matter and the legal and political considerations involved. The ones that are most

The proposal was, not surprisingly, unsuccessful. See Resolution 9 (2009) of ATCM 32, on ‘Enhancement of Environmental Protection up to the Antarctic Convergence’ www.ats.aq/ devAS/info_measures_listitem.aspx?lang=e&id=442; and the US attempt to follow it up at CCAMLR, reported in paras 14.8–14.12 of the Report of the Twenty-Eighth Meeting of the Commission (Hobart, Australia, 26 October–6 November 2009) CCAMLR-XXVIII www. ccamlr.org/en/system/files/e-cc-xxviii.pdf. See also the summary on the CCAMLR website www.ccamlr.org/en/ccamlr-xxviii/32. 40 Huntington et al, ‘Arctic Flora and Fauna; Status and Conservation’, CAFF Report (2001) arcticportal.org/uploads/eX/e6/eXe6XNMebXN263nFyvx_Rg/AFF-Status-andTrends.pdf. 41  ‘Arctic’ is defined in some dictionaries by reference to the Arctic Circle. See, eg, Collins English Dictionary—Complete & Unabridged, 10th edn (HarperCollins Publishers, 2014), which defines it as the line of latitude at 66° 33′N dictionary.reference.com/browse/Arctic. 42 Huntington et al (n 40) on the CAFF website www.caff.is/publications/view_ document/167-arctic-flora-and-fauna-status-and-conservation, ‘Defining the Arctic’, 10–14. See also ‘What is the Arctic?’ National Snow and Ice Data Center website, nsidc.org/ cryosphere/arctic-meteorology/arctic.html and map at nsidc.org/sites/nsidc.org/files/ images//arctic_map.gif.

Securing Polar Regions Through Int’l Law 313 instructive to look at are those devised by the IMO, for recently adopted instruments designed to apply to ships in the whole Arctic region, and at those used in the principal political forums for the region—the Arctic Council and the Arctic Ocean Conference: i.  IMO Polar Shipping Guidelines 2009—Arctic Waters These (non-binding) Guidelines for shipping define ‘Arctic Waters’ by reference to a line linking a series of co-ordinates that follow the parallel of 60 degrees North most of the way round, but it goes significantly to the North in the Denmark Strait, the Norwegian Sea and the Barents Sea.43 ii.  IMO Polar Code—Arctic Waters The ‘goal’ of the IMO Polar Code is to ‘provide for safe ship operation and the protection of the polar environment by addressing risks present in polar waters and not adequately mitigated by other instruments of the Organization’.44 It does not simply replace exhortatory language in the Guidelines with mandatory language. The method chosen is to draft a Code containing both mandatory and recommendatory provisions that address risks specific to polar waters. The Code itself will not be binding, but the mandatory provisions will be made so by means of complementary amendments to the International Convention for the Prevention of Pollution from Ships 1973 as modified (MARPOL) and the International Convention for the Safety of Life at Sea 1974 as amended (SOLAS). This method is designed to ensure that the polar provisions supplement the existing IMO conventions and work in harmony with them without duplication. The definition of ‘Arctic waters’ in the SOLAS amendments is based largely on the co-ordinates used in the IMO Polar Shipping Guidelines. However, although it was initially assumed that the definition already agreed in the IMO as recently as 2009 should not require to be renegotiated, such optimism was misplaced. The binding nature of the Polar Code calls for greater precision, requiring additional co-ordinates. The question of the applicability of the Code to ships on domestic voyages in the Arctic waters under national jurisdiction was an even more difficult issue than it had been for the non-binding Guidelines. Some of the Arctic States’ proposals, designed to ensure that such voyages remain subject only to their

43  ‘Guidelines for Ships Operating in Polar Waters’ (n 22), paras G-3.3 and 3.4. See also map on p 9, www.imo.org/blast/blastDataHelper.asp?data_id=29985&filename=A1024 %2826%29.pdf. 44  IMO Polar Code (n 3) para 1.

314  Jill Barrett own domestic laws, would have resulted in the unintended consequence that most Antarctic voyages would not be governed by the Code at all (as voyages are considered ‘domestic’ if they depart from and return to the same port. Given that there are no ports in Antarctica, this is usually the case).45 Following protracted negotiations, the matter was resolved by moving (or ‘clarifying’) the co-ordinates of the Arctic boundary further northwards to the north of Norway.46 iii.  Arctic Council The Arctic Council has not set out a general definition of the region that falls within its purview. While this would doubtless be essential for a treatybased organisation, the non-binding status of the Council’s work has made this a less compelling issue. The general practice in the Council is to treat the Arctic as a circumpolar region extending southward from the North Pole, covering about eight per cent of the Earth’s surface, including areas located within the jurisdiction of eight States: Canada, Denmark (Greenland and the Faroe Islands), Finland, Iceland, Norway, Russia, ­Sweden and the United States, which it refers to as ‘the eight ­Arctic States’. Accordingly, these eight states are the Member States of the Arctic C ­ ouncil and the status of ‘Permanent Participant’ is accorded to six international organisations representing Arctic indigenous peoples living in these states.47 When an outer geographical boundary is needed for the purposes of a specific line of work, the Working Group concerned formulates its own definition appropriate to its subject without setting a general precedent. At least four different boundaries have been used, none of which have any legal status.48 45  See, eg, IMO Maritime Safety Committee document MSC 93/WP.7 (16 May 2014); and MSC 93/WP.1/Add.1 (22 May 2014); and MSC 93/10/17 (Applicability of Part 1-A of the Polar Code in the Antarctic area, submitted by Canada and the United States). 46 See Regulation 1.3 in IMO Maritime Safety Committee document MSC 94/WP.7 (19 November 2014) on ‘Adoption of the International Code for Ships Operating in Polar Waters (Polar Code) and the Associated New SOLAS chapter XIV’, Annex 1, page 3. 47  Report of the Arctic Governance Project, ‘Arctic Governance in an Era of Transformative Change: Critical Questions, Governance Principles, Ways Forward’ (14 April 2010) and see Arctic Council website: www.arctic-council.org/index.php/en/about-us/member-states. 48  The GRID-Arendel Centre website displays a map entitled ‘Boundaries of the Arctic Council Working Groups’, which compares boundaries used by the following working groups and report of the Arctic Council: Arctic Contaminants Action Program (ACAP), Conservation of Arctic Flora and Fauna (CAFF), Emergency Prevention, Preparedness and Response (EPPR) and Artic Human Revelopment Report (AHDR), www.grida.no/ graphicslib/detail/boundaries-of-the-arctic-council-working-groups_8385#. See also, MJ Gill et al, ‘Arctic Marine Biodiversity Monitoring Plan (CBMP-MARINE PLAN)’, CAFF Monitoring Series Report No 3, CAFF International Secretariat (Akureyri, Iceland, April 2011) 18 and 21. For a comparison of the CAFF boundary, the AMAP boundary and the Arctic Circle, see Figure 3, page 21 and Fig. 16 page 107, www.caff.is/component/dms/ view_document/3-arctic-marine-biodiversity-monitoring-plan?Itemid=1415.

Securing Polar Regions Through Int’l Law 315 iv.  Treaties Adopted by the Arctic Council States The eight states have adopted two treaties under the auspices of the ­Arctic Council. In each treaty, there are complex provisions on the geographical scope of its application. It is worth looking at these to see whether they take the same approach and if so, whether it could potentially be used as the basis for an all-purpose definition, should the Arctic Council be placed on a treaty footing in the future. The 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (‘SAR Agreement’)49 does not define ‘the Arctic’. Nor does it define the scope of application of the whole agreement, but rather sets out the Search and Rescue (SAR) area in which each Party shall apply it. The SAR area is defined for each Party in various differing ways, by reference to a series of co-ordinates, one or more land boundaries, the Beaufort Sea, the Barents Sea, the Arctic Circle and/or the North Pole.50 The area defined for each of the five Arctic coastal states—Canada, Denmark, Norway, Russia and the USA—extends to the North Pole, so the whole of the Arctic sea area beyond national jurisdiction is covered by this agreement. The SAR obligations of each of the Parties apply throughout their respective areas of responsibility, which encompass land and marine areas and the airspace above. The amendment provisions make clear that the delimitation boundaries between each of the national SAR regions were negotiated bilaterally between each pair of states and that the Southern limit of the Arctic region was determined unilaterally by each state for its own region, except that each state may have had to negotiate the way in which the end points of their Southern boundary join up with those of the neighbouring states if they used different criteria for drawing the line.51 The fact that the resulting outer boundary of the Arctic, for the purposes of this agreement, was not collectively negotiated and was not intended to confer any sort of recognition, is clear from the disclaimer in Article 3(2) of the Agreement: The delimitation of search and rescue regions is not related to and shall not prejudice the delimitation of any boundary between States or their sovereignty, sovereign rights or jurisdiction.

The 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (‘Oil Pollution Agreement’)52 does not

49  The text of the Agreement is on the Arctic Council website, www.arctic-council.org/ index.php/en/document-archive/category/20-main-documents-from-nuuk#. 50  Para 2 of the Annex to the Agreement. 51  Articles 13–15 and para 1 of the Annex to the Agreement. 52  The text of the Agreement is on the Arctic Council website, https://oaarchive.arcticcouncil.org/handle/11374/529.

316  Jill Barrett define the ‘Arctic’ either. Nor does it set a single southern boundary of application of the Agreement. However, the way it defines the areas of responsibility of the Parties is quite different from the SAR Agreement. Article 3 provides: 1. This Agreement shall apply with respect to oil pollution incidents that occur in or may pose a threat to any marine area over which a State whose government is a Party to this Agreement exercises sovereignty, sovereign rights or jurisdiction, including its internal waters, territorial sea, exclusive economic zone and continental shelf, consistent with international law and above a southern limit as follows: …

This provision goes on to specify a Southern boundary separately for each State Party. These vary from one State Party to another, as do the areas of responsibility for the SAR Agreement. In some cases, to find out the exact boundary, the reader needs to look elsewhere for provisions of national law or other national texts. For example, national texts would need to be consulted to find out the ‘limits of the exclusive economic zone of the United States’ or the ‘baselines from which the breadth of the territorial sea is Measured’ in parts of Russia. The boundaries of each State Party’s area of responsibility set out in Article 3, like all other provisions of the Agreement, may only be amended by agreement of all the Parties.53 Significantly, the Agreement specifies that only certain of its obligations extend to the ‘areas beyond the jurisdiction of any State’, ie the high seas north of the Southern boundary, and even then only ‘as appropriate’ and ‘to the extent consistent with international law.54 The main differences in the way geographical scope of application is defined in these two agreements stem from the fact that the SAR Agreement co-ordinates aeronautical as well as marine rescue and, therefore, has to apply to land territory as well as the sea and the airspace above, whereas the Oil Pollution Agreement applies to marine areas only. Delimitation of land boundaries of states is not a matter over which other nonadjacent states would normally have any say; hence the SAR Agreement lists boundaries determined only by the states concerned and amendable by them without needing the approval of other Parties. Maritime boundaries, on the other hand, must be delimited in accordance with international law. Co-ordination with respect to SAR operations can be carried out in or over the high seas without infringing on the rights of third states. But some of the obligations in the oil pollution agreement could not. For example, the pre-positioning of oil spill combating equipment and the exercise of authority by national oil spill response organisations would

53  54 

Article 19 of the Oil Pollution Agreement. Article 3(2) of the Oil Pollution Agreement.

Securing Polar Regions Through Int’l Law 317 not be appropriate in areas beyond that state’s national jurisdiction. For that reason, most provisions of the Oil Pollution Agreement do not apply to the central area of the Arctic Ocean, which is not under the jurisdiction of any state. If it did, it might prompt objections by third states. v.  Arctic Ocean Conference The five states with coasts bordering on the Arctic Ocean—Canada, Denmark, Norway, the Russian Federation and the United States of ­ America—convened an Arctic Ocean Conference for the first time in ­ 2008, which established a new regime of co-operation based on their common interests. So far, none of the documents issued by this grouping has included a definition of the Arctic.55 The recent proposal made in this forum for a binding international agreement on Arctic fisheries would, presumably, necessitate agreement on a boundary. It seems unlikely that such a negotiation would be confined to these five states. Indeed, they have indicated an intention to invite the European Union and other interested fishing nations into these discussions.56 E. Implication of the Different Approaches to Boundaries in each Polar Region The absence of any international law definition of ‘the Polar regions’, or even any geographical definition of a ‘polar region’, is in itself an indication that a single legal approach to polar governance issues may be unattainable. Even the 2009 IMO Guidelines for ships operating in Polar Waters,57 designed to harmonise standards across both regions especially for ships

55  The Ilulissat Declaration, Arctic Ocean Conference (Ilulissat, Greenland, 28 May 2008). Text at OceanLaw website, www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration. pdf. The Arctic Ocean Foreign Ministers’ Meeting, Chelsea, Canada, 29 March 2010. Meeting reported on the Government of Canada website, www.international.gc.ca/media/aff/newscommuniques/2010/120.aspx. Full text of Chair’s Summary is available on the w ­ ebsite of the Ministry of Foreign Affairs of the Russian Federation, www.mid.ru/brp_4.nsf/0/5E2 FEF2614D7AE2BC32576F600592DE5. Chairman’s Statement, Meeting on Arctic F ­ isheries (Nuuk, Greenland, 24–26 February 2014). Text on Government of Greenland website, ­naalakkersuisut.gl/en/Naalakkersuisut/Press-Statements/2014/02/Arktisk-hoejsoefiskeri. 56 Bennett, ‘Arctic Ocean Foreign Ministers’ Meeting: Reactions’ Blog on Foreign Policy Association website (1 April 2010), foreignpolicyblogs.com/2010/04/01/arctic-ocean-foreignministers-meeting-the-fallout/; ET Bloom, ‘The New Arctic Frontier in International Law and Diplomacy’ (n 17). 57  ‘Guidelines for Ships Operating in Polar Waters’ (n 22).

318  Jill Barrett that travel to both, apply in an asymmetrical way to each region. The reasons for this are outlined in the Preamble: Whilst Arctic and Antarctic waters have a number of similarities, there are also significant differences. The Arctic is an ocean surrounded by continents while the Antarctic is a continent surrounded by an ocean. … Whilst the marine environments of both Polar seas are similarly vulnerable, response to such challenge should duly take into account specific features of the legal and political regimes applicable to their respective marine spaces.58

These ‘specific features of the legal and political regimes’ include the fact that the law applicable to the central portion of Antarctica is the law applicable to territory,59 whereas the law applicable to the central portion of the Arctic is the law of the sea. It also refers to the very different sovereignty issues. In Antarctica, the land continent is subject to disputes on sovereignty (managed through Article IV of the Antarctic Treaty), but the outer portion is indisputably high seas, making it possible to draw an agreed boundary line around the region. In the Arctic, the outer portion is mostly land territory under the undisputed sovereignty of eight states and subject to their very different domestic legal regimes. As indicated above,60 the asymmetry of the legal geography in each Polar region has presented even more difficult issues throughout the lengthy negotiation of the legally binding aspects of the IMO Polar Code. Some Arctic States are reluctant to accept the application of international shipping standards to matters that are already regulated by their domestic legal systems, and this makes it difficult to harmonise provisions across the two regions without levelling them down. The driver for adopting legally binding standards for ships applicable to both Polar Regions is that there are some ships that travel to both and so harmonised technical standards have to be applied to their construction. In most other contexts, human activities are separately conducted in each region. Wildlife and ecosystems are also separate; neither the penguin nor the polar bear has yet managed to migrate to the other Pole. Where there is no compelling need to harmonise standards, separate regulation in each region is likely to be more achievable and more effective.

58 

ibid, P-1.2. The customary international law principles relating to discovery, symbolic annexation, effective occupation and contiguity applied to territory there: I Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 144. 60  Section D(ii),19–20 above (section on IMO Polar Code-Arctic waters). 59 

Securing Polar Regions Through Int’l Law 319 IV.  INTERNATIONAL REGIMES PROTECTING THE POLAR REGIONS: OPENNESS AND TRANSPARENCY

This section examines how open the principal international governance institutions of each polar region are to the admission and participation of new members and observers. Openness and transparency are important factors in the internal stability of institutions and also in their legitimacy in the eyes of the rest of the world—third states and civil society, which are crucial to international regime security. A.  Antarctic Treaty System—How to Join The ATS is open to all states. Entry requirements vary for different treaties and different levels of involvement, but no state is precluded from participating within the System in some shape or form. i.  Accession to the Antarctic Treaty The Antarctic Treaty is effectively open to accession by all states. ­Article XIII(1) provides that It shall be open for accession by any State which is a Member of the United Nations, or by any other State which may be invited to accede to the Treaty with the consent of all the Contracting Parties whose representatives are entitled to participate in the meetings provided for under Article IX of the Treaty.

As far as UN Member States are concerned, accession is an automatic entitlement and requires only the procedural step of depositing an instrument of accession with the depositary government (the USA). The Treaty enters into force for that state automatically on the date of deposit of the instrument.61 Any state that is not a Member of the UN would need to make its desire to accede known to the depositary government and wait to receive an invitation before depositing its instrument. In practice, the depositary applies a non-objection procedure and no accession has been refused.62 The requirement in Article XIII(1) for ‘consent’ of all the Consultative ­Parties to an invitation to a non-UN Member State admittedly leaves scope for one such Party to veto an accession for any reason. In practice,

61  Antarctic Treaty, Article XIII(3), (4) and (5). On this type of accession clause, see A Aust, Modern Treaty Law and Practice, 3rd edn (Cambridge, Cambridge University Press, 2013) 105–06. 62  See Watts (n 1) 14–15. Switzerland acceded to the Treaty in 1990.

320  Jill Barrett it seems unlikely this would be done for reasons other than doubts about the applicant’s legal status as a state.63 ii.  Recognition of Antarctic Treaty Consultative Party Status The Contracting Parties to the Antarctic Treaty fall into two categories: Consultative Parties and Non-Consultative Parties. Consultative P ­ arties have decision-making power under Article IX of the Treaty, whereas Non-Consultative Parties do not. Although the term ‘Consultative Party’ is not used in the Treaty, the distinction between these two categories of Contracting Party arises from the provisions of Article IX(1) and (2), read together with Article XIII. Article IX(1) requires there to be periodic meetings of representatives of the original 12 signatory states. The purpose of the meetings is threefold: to exchange information, to consult together on matters of common interest pertaining to Antarctica and to adopt measures on a range of matters. These meetings have come to be known as ‘Antarctic Treaty Consultative Meetings’ or ‘ATCMs’ and normally take place once a year. Article IX(2) provides that an acceding state is also entitled to participate in those meetings ‘during such time as that Contracting party demonstrates its interest in Antarctica by conducting substantial scientific research activity there, such as the establishment of a scientific station or the dispatch of a scientific expedition’. Those states entitled to participate in the ATCMs—the 12 original signatories plus those that qualify under Article IX(2)—are known as the ‘Consultative Parties’ (or ATCPs). Contracting Parties not so entitled are known as the ‘Non-Consultative Parties’ (or non-ATCPs).64 Their respective roles are set out in the ATCM Rules of Procedure, which make clear that only ATCPs are entitled to attend the ATCM as of right, vote, chair meetings, make substantive proposals or raise procedural points of order. Non-Consultative Parties may only attend the ATCM if invited and even then, the invitation only applies to the plenary meetings and to formal working groups provided no ATCP objects, not to informal consultations and drafting groups. The relevant Chair may invite a representative of a Non-Consultative Party to speak, but is required to give priority to

63  It is interesting to note that the Cook Islands was allowed to accede to CCAMLR, in the absence of any formal objection by any Member of the CCAMLR Commission, despite the doubts of some of those members as to its legal status as a state. 64  These terms are now defined in the Environmental Protocol (n 29), Article 1, and used in other provisions of the Protocol. They are also defined in Rule 1 of the ATCM Rule of Procedure and used in other Rules. The current version, the Revised Rules of Procedure for the Antarctic Treaty Consultative Meeting (2015), is available on the website of the Antarctic Treaty Secretariat, http://www.ats.aq/documents/recatt/Att581_e.pdf.

Securing Polar Regions Through Int’l Law 321 the ATCPs. Non-Consultative Parties may not table a proposal except in collaboration with an ATCP. In effect, this means that the role of a NonConsultative Party in formal terms is similar to that of an observer state in many other treaty bodies. Nevertheless, the importance of this role should not be underestimated. They are, in practice, always invited to ATCMs and given opportunities to speak and are not normally excluded from informal consultations in which they express an interest. They are thus able to exert some influence, if they wish to, not least because the ATCPs are invariably eager to establish co-operative relations with states at an early stage of their Antarctic engagement to help ensure that they respect the role of the ATS and remain firmly within the ‘ATS club’. There are currently 52 Contracting Parties to the Antarctic Treaty, comprising 29 Consultative Parties (the 12 original signatories plus the 17 acceding states that have been granted Consultative Status) and 23 NonConsultative Parties. The most recent accessions were Kazakhstan and Mongolia in 2015, Pakistan in 2012, Malaysia in 2011, Portugal in 2010 and Monaco in 2008.65 Since 1961, there has been a steady stream of new accessions in every decade, with the largest number in the 1980s (18) and 1990s (6). The wave of interest in the 1980s was undoubtedly due to the negotiations on the Convention for the Regulation of Antarctic Mineral Resource Activities 1988, which gave rise to the prospect of international competition to extract minerals and a concern on the part of states outside the ATS not to miss out. The Convention was superseded in 1991 by the adoption of the Environmental Protocol,66 which banned mineral resource activity (other than scientific research) and attracted new participation for different reasons.67 iii.  Criteria for Recognition of Consultative Party Status To meet the criteria for recognition as a Consultative Party, an applicant State Party needs to: (a) Conduct substantial scientific research activities in Antarctica; (b) Accede to the Environmental Protocol, including all Annexes in force (currently Annexes I–V); (c) Make a declaration of intent to approve those ATCM Recommendations and Measures that are already effective, and to consider approval of others that have been adopted at ATCM but not yet become effective; and

65  The Treaty parties are listed on the Antarctic Treaty Secretariat website, www.ats.aq/ devAS/ats_parties.aspx?lang=e. The official list is maintained by the depositary government. 66  Environmental Protocol (n 29). 67  Environmental Protocol (n 29) Article 7.

322  Jill Barrett (d) Notify the depositary government that it believes it meets the criteria for Consultative Status and provide supporting information concerning its activities in the Antarctic, in particular the content and objectives of its scientific programme. The legal conditions for Consultative Party status are set out in the ­ Antarctic Treaty, Article IX(2) and the Environmental Protocol, Article 22(4). These are amplified in, and the procedures are set out in, the Guidelines on Notification with Respect to Consultative Status (1987)68 and in ATCM Decision 4 (2005) on ‘Consultative Party Status’.69 (a) The Requirement to Conduct ‘Substantial Scientific Research Activities in Antarctica’ Article IX(2) of the Antarctic Treaty requires that an applicant state ‘­demonstrates its interest in Antarctica by conducting substantial scientific research activity there, such as the establishment of a scientific station or the dispatch of a scientific expedition’. These are mentioned in Article IX(2) merely as two examples of how substantial scientific research activity might be demonstrated and are not prerequisites. Given that most of the 17 ‘new’ Consultative Parties (ie those recognised as such under ­Article IX(2)) had already established a national research station in ­Antarctica and sent a national scientific expedition there, this may have created the impression that both are considered as prerequisites. They are not, and the recognition of Consultative Status for Peru in 1989 is evidence of this. The ATCM noted that there had been two Peruvian scientific expeditions and that ‘in 1989 Peru began the construction of a station on King George Island (base Macchu Picchu) which will accommodate 13 people’.70 The case of the Netherlands is even clearer. Its Consultative Status was recognised in 1990 without the establishment of a station nor the dispatch of an independent national expedition, nor with any plans to do either. The ATCM nevertheless recognised that the Netherlands had demonstrated the substantial nature of its interest in Antarctica in accordance with ­Article IX(2) of the Antarctic Treaty. This was on the basis of the Dutch scientific programme, carried out in co-operation with expeditions of other nations, including an ‘… intensive programme of environmental

68 

Paragraph 49 of the Final Report of ATCM XIV. at ATCM XXVIII (Stockholm, 2005). The text is on the Antarctic Treaty ­Secretariat website, www.ats.aq/devAS/info_measures_report.aspx?id=339&lang=e. 70 Recommendation adopted by Special ATCM IX (Paris, 1989). The text is on the Antarctic Treaty Secretariat website, www.ats.aq/devAS/info_measures_listitem.aspx? lang=e&id=316 (emphasis added). 69 Adopted

Securing Polar Regions Through Int’l Law 323 impact studies in the vicinity of the Polish “Arctowski Station” on King George Island, for which purpose it will use a large part of the station’.71 The point was accepted that it is the scientific programme that has to be substantial and independent, not the ownership or use of a station or ships or aircraft. The Netherlands has continued to conduct its science programme in collaboration with several other ATCPs. For example, in 2010, by arrangement with the UK, a Dutch research laboratory was constructed in the Netherlands, transported to Antarctica in the form of containers and inserted into a bespoke building at the British Rothera Research Station. This enables the Netherlands to conduct its own independent science programme, making use of existing facilities at Rothera including sea and air transport. The laboratory could, in the future, be removed in its entirety for repatriation or transfer to another national station. The Dutch approach to scientific research has a number of advantages over building a new station, aside from being more economical. As explained by the Netherlands Organisation for Scientific Research: ‘The principle underlying the Antarctic Treaty is that Member States must do as little damage as possible to the Antarctic environment. That is why the Netherlands built the mobile lab on an existing base.’72 This model of co-operation could be replicated by other pairs of Consultative Parties in the future. It is submitted that the requirement of Article IX(2) to demonstrate substantial scientific research activity should now be interpreted in light of the obligations in the Environmental Protocol. The environmental principles set out in Article 3 require environmental protection to be fundamental in the planning and conduct of all activities. This means, in particular, that adverse impacts on Antarctic ecosystems must be limited and degradation of wilderness areas avoided. When assessing whether a state has demonstrated its interest in Antarctica, the ATCPs should take account of not only the output of the scientific research, but also the efforts made to minimise its footprint. If every new ATCP builds a new station, there is a danger of proliferation of stations in some of the more accessible areas, resulting in degradation of their scientific value as well as other environmental values.73

71 Recommendation on ‘Recognition of Ecuador and the Netherlands as Consultative ­ arties’ adopted by Special ATCM X (Viña del Mar, 1990). The text is on the ATS website, P www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=192. 72 ‘Dutch Research Laboratory in Antarctica’ on the Netherlands Organisation for Scientific Research (NOW) website, www.nwo.nl/en/research-and-results/cases/dutch­ research-laboratory-in-antarctica.html. 73 Roura and Barrett, ‘New Antarctic Stations: Are they Justified?’ Information Paper submitted by ASOC to the 37th Antarctic Treaty Consultative Meeting (31 March 2014) IP 73, www.ats.aq/devAS/ats_meetings_documents.aspx?lang=e. This trend was foreseen in Watts (n 1) 18.

324  Jill Barrett There are other alternatives to every new ATCP building its own s­tation. Not all research needs to be carried out from permanent landbased facilities—temporary camps, ships and remote sensing are also means by which research may be carried out. Moreover, permanent facilities do not need to be operated by a single nation—examples of international co-operation include Concordia station established in 2005 and operated jointly by French and Italian scientists. (b) The Requirement to Accede to the Environmental Protocol, Including all Annexes in Force (Currently Annexes I–V) Article 22(4) of the Environmental Protocol added the further requirement that to become a Consultative Party, a Contracting Party must first ratify (or accede to) the Protocol. This has applied since the entry into force of the Protocol in 1998. The term ‘Protocol’ includes its Annexes.74 The Consultative Parties made clear in Decision 4 (2005) that this means that ‘all Annexes to the Protocol that have become effective’ must be ratified, ‘Noting that Annex V to the Protocol has become effective’.75 This point is important, as there are two new instruments that have not yet ‘become effective’ (ie not yet in force): a new Annex to the Protocol on ‘­ Liability arising from Environmental Emergencies’ (Annex VI) was adopted in 2005 and a set of amendments to Annex II (Conservation of Antarctic Fauna and Flora) were adopted in 2009 to enhance protection, for example, in relation to invertebrates and the accidental introduction of non-native species.76 When the Czech Republic gained Consultative Status in 2014, it did so on the basis of its accession to the Protocol in 2004, without having approved Annex VI or the amendments to Annex II. This indicates that the way the ATCPs apply the requirements of Article 22(4) is consistent with the above interpretation.77 Given the complexity of Annex VI—and the evident difficulties faced by some ATCPs in implementing it in domestic law—states preparing now to apply for Consultative Status might understandably prefer to leave this Annex until later. When ratification of Annex VI becomes a prerequisite for Consultative Status, this will significantly raise the bar.

74 

Environmental Protocol (n 29) Article 9. text of ATCM Decision 4 (2005) adopted at ATCM XXVIII is available from the ­Antarctic Treaty Database, www.ats.aq/devAS/info_measures_list.aspx?lang=e. 76  Annex II, as revised, is set out in the attachment to Measure 16 (2009), on the ATS website, www.ats.aq/documents/recatt/att432_e.pdf. 77  Decision 1 (2013) adopted by ATCM 36 on ‘Recognition of the Czech Republic as a Consultative Party’, declared the Czech Republic a Consultative Party as of 1 April 2014. See Final Report of ATCM XXXVII, para 37. 75  The

Securing Polar Regions Through Int’l Law 325 Ratifying the Environmental Protocol requires a great deal more than simply depositing a formal instrument with the depositary. It requires a domestic process ‘including the adoption of laws and regulations, administrative actions and enforcement measures, to ensure compliance with this Protocol’ (Article 13). This is not merely a one-off process at the time of ratification; implementation has to be ongoing. Since Protocol Parties are required to submit an annual report to the ATCM on the steps taken to implement the Protocol, any neglect in this respect will be exposed. Particularly important features of the domestic implementation that Protocol Parties are required to have in place are the following. First, it must ensure compliance with the Protocol by private persons within a State Party’s jurisdiction, as well as by governmental authorities, whether by criminal, civil or administrative means. Second, it must enable the ­Government to provide advance notice to other Parties of all expeditions to Antarctica by that state’s ships or nationals and all expeditions to Antarctica organised in its territory, whether governmental or private.78 Third, it needs to empower the appropriate national authorities to modify, suspend or cancel activities (governmental or private) if they impact or threaten the Antarctic environment. Fourth, it needs to provide some mechanism for rapid domestic implementation of future measures and amendments adopted by the ATCM. These are onerous requirements that normally take several years of work within a government to prepare the legislation and to secure its passage through the legislature. (c) The Requirement to Make a Declaration of Intent to Approve Measures The expectation that applicant states will make a ‘declaration of intent’ to approve the ATCM recommendations and Measures79 that are already in force and to consider approving those that have been adopted but are not yet in force, is set out in Decision 4 (2005).80 Although the Decision cites Article X of the Treaty as the basis for the ATCPs examining the

78 

Article VII(5) of the Antarctic Treaty; Article 3(4) Environmental Protocol (n 29). to 1995, all Measures adopted under Article IX of the Antarctic Treaty were called ‘Recommendations’. Since Decision 1 (1995) of ATCM XIX, the ATCM has adopted ‘­Measures, Decisions and Resolutions’, of which only ‘Measures’ require to be approved by all ATCPs under Article IX. In this chapter, the expression ‘Recommendations and Measures’ is abbreviated to ‘Measures’. 80 Decision 4 (2005), para 2, provides that the Consultative Parties ‘may, through the Depositary Government, urge such a state to make a declaration of intent to approve the recommendations and Measures adopted at ATCM in pursuance of the Treaty and subsequently approved by all the Contracting Parties whose Representatives were entitled to participate in those meetings. Consultative Parties may, through the Depositary Government, invite the acceding state to consider approval of the other Recommendations and Measures.’ 79 Prior

326  Jill Barrett i­nformation submitted and conducting appropriate enquiries, it provides only that the ATCPs ‘may … urge’ such a declaration to be made, recognising implicitly that approval of all existing Measures in force is not a legal prerequisite for Consultative status. The ATCM has, in practice, applied a light touch with respect to the acceptance of existing Measures. All applicant states have made some sort of declaration of intent, but the contents have varied considerably. The first new ATCP, Poland, declared in 1977 that it had approved all the existing Recommendations. This achievement has become progressively more onerous as the number of Measures in force has increased. A more common formula is that used by Brazil in 1983 and others since, namely that it ‘intends to approve’ the Measures in force and ‘is willing to consider favourably’ the approval of the others. At the top end of the scale was the announcement by the Czech Republic in 2013 of its ‘intention to approve’ the Measures in force and ‘and to consider approval’ of the others. When in 2014 the Czech Republic informed the ATCM it had already approved all current Measures at the national level, with the exception of Annex VI and the amendment to Annex II, and would notify its approval to the depositary, this was rightly praised as a better record than some longstanding ATCPs have.81 (d)  The Procedure and the Required Supporting Information The Antarctic Treaty does not specify a procedure by which it is to be decided whether a Contracting Party has met the condition for Consultative Status. The question first arose in 1977 when Poland notified its activities in Antarctica. In response, the ATCPs agreed on a procedure that steers a middle course between, on the one hand, allowing a Party to decide for itself that it has met the Treaty criteria, and, on the other, setting up an admissions process that could be used to prevent a Party exercising its legal entitlements in the Treaty.82 The procedure, as currently applied, is set out in the Guidelines on Notification with respect to Consultative ­Status (1987)83 and in ATCM Decision 4 (2005).84 In short, the applicant state notifies the depositary government (the USA) that it believes it has met the criteria and provides supporting information. The matter is placed on the agenda of the next ATCM, which ‘shall determine, on the basis of all ­information available to it, whether to acknowledge that the acceding state in question has met the requirements of Article IX.2 of the ­Antarctic

81 

Final Report of ATCM XXXVII, para 38. Watts (n 1) 15–19. 83  Para 49 of the Final Report of ATCM XIV. 84  (n 69). 82 

Securing Polar Regions Through Int’l Law 327 Treaty and of Article 22.4 of the Protocol’, taking the Guidelines into account. If all ATCPs agree that the criteria are met, this is acknowledged in an ATCM Decision and notified to the applicant state. This wording emphasises that the decision is to be taken on the basis of legal criteria only. In practice, the decision is made by the Heads of Delegation of the ATCPs at a private off-the-record meeting.85 Typically, a representative of the applicant Party is invited to attend part of the Heads of Delegation meeting at which their status is discussed, to make a presentation and to answer questions. If there is consensus that Consultative Party Status should be recognised, the Chair of the ATCM formally proposes to the plenary meeting that a Decision recognising the new Consultative Party be adopted. Should any issue emerge at that point, it would doubtless be resolved in further behind the scenes consultations. It follows from this that, since the procedure is not transparent and the discussion is not reported, any ATCP could block consensus for any reason. However, this author, having attended a number of such meetings, considers it unlikely that an objection not based on the objective criteria set in the Treaty, ­Protocol or Guidelines, could be sustained for long. Debate among Heads of Delegation can be robust and an objecting Head would be asked to explain their objection. It would appear that no state that has formally applied has yet been turned down. At most, the Heads of Delegation have asked for further information or reassurances and then accepted it a year later. One could infer that the criteria are sometimes applied by the ATCPs with a certain amount of latitude. An alternative explanation is that an applicant state will normally have consulted one or more ATCPs before presenting its case and so will not apply until it is reasonably sure its case will be supported. In the author’s view, both of these are factors. If a Contracting Party has made a national policy decision to apply for Consultative ­Status and taken genuine steps to qualify, even if incomplete, the ATCPs are unlikely to exclude that state from the ‘ATCP club’ for long as this might risk alienating that state and its scientists and jeopardise prospects of c­ o-operation. Although it would not be easy for a state to conduct operations in Antarctica outside the ATS, the risk of an attempt is real enough that ATCPs would be careful to avoid creating conditions that might ­precipitate it. In other words, the desire to maintain the integrity of the ATS regime is very strong among those states at the core of it.

85 The author attended the Heads of Delegation meetings at ATCM XXVII (2004) and ATCM XXVII (2005) at which the status of Ukraine was discussed and that culminated in Decision 2 (2005) ATCM XXVIII on ‘Recognition of Ukraine as Consultative Party’. The author also attended most other Heads of Delegation meetings at ATCM XXV (2002) to ATCM XXXIII (2010).

328  Jill Barrett iv.  ATCM Observers and Experts The ATCM Rules of Procedure have from the outset provided a role in the ATCM for ‘Antarctic Treaty System Observers’ and ‘Experts from International Organizations’. The ‘Observers’ are the three organisations named in Rule 2: CCAMLR, the Scientific Committee on Antarctic Research (‘SCAR’) and the Council of Managers of Antarctic Programs (‘COMNAP’). Their status as observers is permanent. Although they have no right to participate in the taking of decisions, they are entitled to table ‘working papers’, which gives them the procedural right to make proposals and have them debated.86 The ‘Experts’ are ‘international organisations having a scientific or technical interest in Antarctica’ that are invited by the ATCM to attend the next ATCM. This is interpreted in a broad sense to include non-governmental­ organisations (NGOs). These invitations are for one ATCM only and could be changed each year. In accordance with established practice, invitations are regularly issued to a number of treaty bodies, such as the Agreement on the Conservation of Albatrosses and Petrels (ACAP), international organisations, such as the IMO, and NGOs, such as the Antarctic and Southern Ocean Coalition (ASOC) and the International Association of Antarctica Tour Operators (IAATO). Like Observers, they have no right to participate in the taking of decisions, but, unlike them, they may only table ‘information papers’, which are for background and are not debated. This limit on their participation in formal terms means that, to be effective, they have to persuade an ATCP of the merits of their proposal and work in collaboration with that delegation. In practice, this happens quite often. B. Accession to the Convention on the Conservation of Antarctic Marine Living Resources 1980 (‘CCAMLR’) Any state may accede to CCAMLR provided that it is ‘… interested in research or harvesting activities in relation to the marine living resources to which this Convention applies’.87 The instructions on the website of the depositary government (Australia) indicate that the state concerned should express its interest in a note verbale and ‘The note, to the extent possible, should outline the Acceding State’s scientific research interests and include any details of research being undertaken, or being planned for, in the Convention Area.’ This requirement is a purely procedural one. This is implicit in the provision in Article XXVIII(2) for entry into force of

86  87 

ATCM Rules of Procedure (2011) Rules 2 and 31–35. Article XXIX(1).

Securing Polar Regions Through Int’l Law 329 the Convention on the 30th day after deposit of the instrument of ratification, acceptance, approval or accession. Moreover, the status table for the Convention published by the depositary shows the date of entry into force for each acceding state as 30 days after the deposit. To date, 21 states and the European Union have acceded to the Convention, joining 14 original signatory states, making a total of 36 Parties.88 i.  Observers, Acceding States and Non-Party States Acceding States are invited to meetings of the CCAMLR Commission as Observers, without the right to vote (unless they become Commission Members—explained below).89 The CCAMLR Rules of Procedure also provide for any other non-State Party to be invited to the meetings as Observers, with almost the same procedural rights as Contracting States.90 Liberal use of this provision is made. For example, 21 non-Party States were invited to attend the most recent meeting of the Commission in October 2014 as Observers, although of those only one (Singapore) attended. The reason for this ‘outreach effort’ to these 21 invitees is indicated in the Commission’s decision to invite them again in 2015, referring to them as ‘non-Contracting Parties not participating in the CDS [Catch Documentation Scheme] but possibly involved in harvesting, landing and/or trade of toothfish’, and its decision also to invite the Seychelles in the category of ‘non-Contracting ­Parties participating in the CDS who are involved in harvesting or landing and/or trade of toothfish’. Members of the Commission evidently do not feel the same reluctance as the ATCM to make provision for non-Party States to be observers. This is despite the fact that the non-Party States have made no commitment to the ‘sovereignty position savings clause’ in Article IV of CCAMLR, which is based on Article IV of the Antarctic Treaty. Combatting illegal, unregulated or unreported (IUU) fishing is a major priority of CCAMLR, which explains why CCAMLR has a pro-active strategy for engagement with non-Contracting Parties whose flag vessels or nationals’ fishing activities could have an adverse impact on the marine living resources of the

88  CCAMLR Status List, compiled by the depositary: Australia—Department of F ­ oreign Affairs and Trade, Canberra, ACT. Last updated: 11 December 2013, on the CCAMLR website, www.ccamlr.org/en/system/files/CCAMLR-Status-list-as-at-14-Feb-2014.pdf. 89  The Acceding States are automatically invited to all meetings. See, eg, Report of the Thirty-third meeting of the Commission (Hobart, Australia, 20–31 October 2014) paras 1.3 and 12.4. The Report is on the CCAMLR website, www.ccamlr.org/en/ccamlr-xxxiii. 90  Rules of Procedure of the Commission, as adopted at CCAMLR-I (para 13); amended at CCAMLR-VIII (para 173); amended at CCAMLR-X (para 17.2); amended at CCAMLRXIII (paras 13.10 and 13.11). Text on the CCAMLR website, www.ccamlr.org/en/document/ publications/rules-procedure-commission.

330  Jill Barrett CCAMLR area.91 Evidently these concerns prevail over the sovereignty issues in this forum. ii.  Becoming a Member of the CCAMLR Commission The CCAMLR Convention established the Commission for the Conservation of Antarctic Living Marine Resources (‘the Commission’), as an international organisation with international legal personality and the power to adopt ‘conservation measures’. These measures are binding on all Members of the Commission, subject to an opt-out procedure. Decisions of the Commission are taken by consensus among its Members.92 The Members of the Commission are (a) Contracting Parties that were among the original signatories; (b) states that have acceded under ­Article XXIX (1) ‘during such time as that acceding party is engaged in research or harvesting activities in relation to the marine living resources to which this Convention applies’; and (c) acceding regional economic integration organisations (REIOs) whose state members are entitled to be Commission Members.93 The procedure for an Acceding State or REIO to apply to become a ­Member is set out in Article VII (2) (d). It has to ‘notify the Depositary of the basis upon which it seeks to become a Member of the Commission and of its willingness to accept conservation measures in force.’ The depositary circulates the notification to the Members, who may, within two months, request that a special meeting be convened to consider the matter. If no such request is received, the notification is deemed to have satisfied the requirements for Commission Membership. A special meeting was convened to consider the first such notification (from Brazil) and membership was approved.94 Normally there is no request and applications are therefore accepted on the basis of non-objection. Currently, the Commission has 25 Members (24 states and the EU) and 11 Acceding States (which are Contracting Parties to CCAMLR but not Commission Members). iii.  Remarks on the Overall Level of Openness of the ATS to Participation The ATS currently engages 55 states and the EU as parties to one or more of its component treaties. This includes all states actively involved in the 91  See Report of the Thirty-third meeting of the Commission (Hobart, Australia, 20–31 October 2014) paras 3.76–3.96. The Report is on the CCAMLR website, www.ccamlr.org/en/ ccamlr-xxxiii. 92  CCAMLR, Articles VII, VIII and IX. 93  CCAMLR, Article VII(2). 94  Report of the First Special Meeting of the Commission for the Conservation of Antarctic Marine Living Resources (8 September 1986) on the CCAMLR website, www.ccamlr.org/ en/system/files/e-cc-sm-i.pdf.

Securing Polar Regions Through Int’l Law 331 Antarctic and encompasses a large proportion of the world’s population, but it is not universal. Many of the current problems in the ATS concern its relationship with non-party states and the difficulty of enforcing ATS standards against individuals, operators and ships of non-Parties, and these are certain to increase in the future. The problems are most acute in the context of competition for and conservation of marine living resources and, as a result, CCAMLR has an active strategy for engaging with nonParty States and encouraging them to attend the Commission’s meetings and accede to the Convention. The ATCM, by contrast, lacks an active strategy for encouraging nonStates Parties to accede to the Antarctic Treaty. Current concerns focus on the difficulties of regulating the activities of non-state actors, especially those from states that are not Party to the Environmental Protocol. Since the entry into force of the Protocol, the ATCPs have been urging nonConsultative­Parties that have not yet become Parties to the Protocol, particularly those with Antarctic tourist activities organised in their territory, to adhere to the Protocol as soon as possible.95 This was stepped up in 2011 to an appeal by the ATCM to those non-Consultative Parties, supported by diplomatic lobbying efforts carried out in Capitals,96 and again in 2012, following personal interventions at the ATCM by Michel Rocard (France) and Bob Hawke (Australia) (whose former leadership led to the adoption of the Environmental Protocol in 1991). The campaign has borne a small amount of fruit: Pakistan acceded to the Protocol in 2012 and Portugal and Venezuela did so in 2014. Turkey has announced its intention to accede in 2015,97 but 13 Antarctic Treaty non-Consultative Parties have yet to accede to the Protocol, despite years, or decades in some cases, of participation in the Treaty. These ‘outreach’ efforts are directed solely at those states already in the outer circle of the ATS. Other states are free to accede to the Treaty on their own initiative. Once in, there will be gentle pressure to join the Protocol and the possibility of offers of scientific collaboration and other kinds of support or advice from existing ATCPs. Acceding to the Protocol brings considerable responsibilities, particularly with respect to implementation and enforcement against non-state actors in the domestic legal system, but not full voting rights in the ATCM, even on the adoption of

95 

Resolution 6 (1999)—ATCM XXIII—CEP II, Lima. 1 (2011)—ATCM XXXIV—CEP XIV, Buenos Aires; Resolution 1 (2012)— ATCM XXXV—CEP XV, Hobart, on the ATS website, www.ats.aq/devAS/info_measures_ list_filtered.aspx?lang=e&top=166&curr=False. 97 Announcement by B Ozogut, Ministry of Environment, ‘Status of Madrid ­ Protocol’ at the Fifth Meeting Towards Establishment of the Turkish Arctic and Antarctic Research Programme (TuArk), at the METU Institute of Marine Sciences (Erdemli, Turkey, ­ 13 ­November 2014). 96 Resolution

332  Jill Barrett a­ mendments and new annexes to the Protocol.98 Therefore, the aspiration of most states acceding to the Protocol is to become an ATCP, which requires considerable time and investment to develop a substantial scientific research programme in Antarctica. This presents significant economic barriers for states with developing or fragile economies. As explained above, building new infrastructure and acquiring ships and aircraft is not a prerequisite for ATCP status, but this may not be sufficiently understood by aspiring states. In addition, the alternative routes, via co-operation with existing ATCPs, require at least two to tango. For existing ATCPs, there is a clear interest in bringing new states interested in Antarctica firmly into the ‘fold’ of the ATS. Yet there may also be a disincentive to encouraging nonConsultative Parties to qualify for Consultative Status since all decisions of the ATCM are made by consensus. The more decision-makers, the less influence each ATCP may have and the more difficult it is to take bold or innovative decisions on anything. This sets up an internal tension within the ATCM and may inhibit expansion of membership, thus reducing its international legitimacy in the long term.99 C.  The Arctic Council—How to become a Member As has been demonstrated by examining the way in which the outer boundaries of each of the Polar Regions are (or are not) defined, the geography of the Arctic is quite different. Most issues concerning potential oil, gas and seabed mineral extraction will occur within the territory or maritime jurisdiction of one of the eight Arctic Council states. There are no disputes about which states have Arctic territory. Jurisdictional disputes are about the delimitation of maritime jurisdictional zones, for access to marine resources and navigational routes. There is no ‘Arctic Treaty System’ or overarching treaty providing for Arctic governance. There are a few multilateral treaties dealing with specific issues in the Arctic region, such as the Svalbard Treaty (1920) and the Polar Bear Treaty (1973), and of course numerous bilateral treaties between Arctic States. Most of the international law applicable to the region is ­general international law of global application. The most significant is the law of the sea, as reflected in the UN Convention on the Law of the Sea (UNCLOS).100 (The USA is still not party to the UNCLOS,

98 

Environmental Protocol (n 29) Article 9. For an expanded version of section IV(A) and (B) of this chapter, see J Barrett, ‘International Governance of the Antarctic—Participation, Transparency and Legitimacy’ (2015) The Yearbook of Polar Law 448–500. 100  United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1991) 1833 UNTS 396 (UNCLOS). 99 

Securing Polar Regions Through Int’l Law 333 but it is US government policy to accede to it,101 and the US has stated on a number of occasions that it considers the provisions of UNCLOS to reflect customary international law.) The five states that border the Arctic Ocean declared in 2008 that they saw no need for a new comprehensive legal regime to ­govern the Arctic Ocean, as ‘an extensive legal framework applies to the Arctic Ocean … notably the law of the sea …’.102 With respect to the maritime part of the Arctic region, the law of the sea appears to provide adequate international regime security from the perspective of the coastal states. The Arctic Council is the closest northern equivalent to the ATS is the Arctic Council, in that it is the key place in which diplomacy related to the Arctic region takes place, relating to a wide range of issues. It is a highlevel forum among the eight states with Arctic territory, which is gradually developing into an institution of international governance. However, it is quite different from the ATS in a number of ways. The Arctic Council is not an international organisation with international legal personality (like CCAMLR), nor is it a treaty body (like the ATCM). It was established in 1996 by the ‘Ottawa Declaration on the establishment of the Arctic Council’, a non-binding instrument. It has no legal status. The Arctic Council’s remit includes environmental protection, sustainable development, climate, biodiversity, oceans, scientific research and technical matters, and, in these subjects, it has interests in common with the ATS. It also extends to the health and wellbeing of Arctic peoples— a subject with no ATS equivalent given the absence of settled Antarctic populations. A particularly significant difference is that the Ottawa Declaration states (in a footnote) that ‘The Arctic Council should not deal with matters related to military security’, although this has not prevented the adoption of treaties on search and rescue and oil pollution response that involve co-operation by military services.103 The Council’s membership consists of eight ‘Member States’ and six ‘Permanent Participants’ consisting of indigenous peoples’ organisations. These two categories are not equal: only the Member States have decisionmaking power. Under the Rules of Procedure ‘all decisions of the ­Arctic Council and its subsidiary bodies, including with respect to decisions to be taken by SAOs, shall be by a consensus of all eight Arctic States’. Permanent Participants may participate in all meetings and activities of the Arctic Council, but only have ‘full consultation rights in connection

101  E Bloom, Director, Office of Ocean and Polar Affairs, US Department of State, ‘Keynote Address’ (‘The New Arctic Frontier in International law and Diplomacy’ seminar, British Institute of International and Comparative Law, 19 November 2014). The full text is on the website of BIICL, www.biicl.org/arthurwattsevents. 102  Ilulissat Declaration (n 55). 103  See n 15, n 49 and n 52.

334  Jill Barrett with the Council’s negotiations and decisions’. Nevertheless, the fact that the indigenous peoples’ organisations are accorded permanent rights to participate represents a unique feature of the Arctic Council and distinguishes it from the ATS, whose membership is open only to states (and the EU in the case of CCAMLR). Is the Council open to new members? Its founding documents and its Rules of Procedure name the eight Member States and make no provision for any other states to apply for or be admitted to membership. Thus, there is no process equivalent to Article IX(2) of the Antarctic Treaty. This would not preclude the Member States agreeing to admit a new Member, but no state has any legal entitlement to apply and there are no criteria for considering them. The Ottawa Declaration and Rules of Procedure do provide for additional indigenous people’s organisations to be admitted by decision of the Council, with the interesting proviso that ‘The number of Permanent Participants should at any time be less than the number of members.’ The number of Permanent Participants has been increased from the original five to six. It might be inferred that the wording ‘the number of members’ rather than ‘eight’ was used as the possibility of admitting new members was foreseen. However, there is no present indication that they would be willing to entertain any such application. Indeed, it is difficult enough for non-Arctic States to gain admission as Observers, so any efforts to increase engagement in the Council is likely to focus on the admissions process and the role of Observer States and organisations. D. How Can a Non-Arctic State or Organisation Participate in the Arctic Council as an Observer? Observer status in the Arctic Council is open to non-Arctic States, intergovernmental and inter-parliamentary organisations, global and regional NGOs ‘that the Council determines can contribute to its work’. The granting of observer status is at the discretion of the Council and ‘shall continue for such time as consensus exists among Ministers’.104 This gives no legal or even any clear political entitlement to observer status, unlike the ATS.105

104  Arctic Council Rules of Procedure, as adopted by the Arctic Council in 1998 and revised in 2013, Rules 36 and 37. The text is on the Arctic Council website, www.arctic-council.org/ index.php/en/document-archive/category/4-founding-documents. 105  See text at nn 64 to 65 and at nn 89 to 91.

Securing Polar Regions Through Int’l Law 335 The Council has set out a procedure for states and organisations to apply for observer status, in Annex 2 to its Rules of Procedure. It also sets out the criteria for admitting observers as follows: In the determination of the general suitability of an applicant for Observer status the Arctic Council will, inter alia, take into account the extent to which the applicant: (a) accepts and supports the objectives of the Arctic Council defined in the Ottawa declaration; (b) recognizes Arctic States’ sovereignty, sovereign rights and jurisdiction in the Arctic; (c) recognizes that an extensive legal framework applies to the Arctic Ocean including, notably, the Law of the Sea, and that this framework provides a solid foundation for responsible management of this ocean; (d) respects the values, interests, culture and traditions of Arctic indigenous peoples and other Arctic inhabitants; (e) has demonstrated a political willingness as well as financial ability to contribute to the work of the Permanent Participants and other Arctic indigenous peoples; (f) has demonstrated their Arctic interests and expertise relevant to the work of the Arctic Council; and (g) has demonstrated a concrete interest and ability to support the work of the Arctic Council, including through partnerships with member states and Permanent Participants bringing Arctic concerns to global decisionmaking bodies.106

It is clear from this wording (especially ‘inter alia’ and ‘take into account’) that the decision remains within the discretion of the Member States, and that they maintain the right to decline an application for any reason, which could be unrelated to the application or even to the business of the Arctic Council. How does this process and these criteria compare with the requirements for acceding to the Antarctic Treaty? Criterion (f) ‘has demonstrated their Arctic interests and expertise’ is similar to the requirement in Article X(2) of the Antarctic Treaty. C ­ riterion (b) is however quite different from the sovereignty ‘savings clause’ in Article 4 of the Antarctic Treaty. It imposes a one-way requirement for observers to recognise the rights of the Arctic States, with no corresponding recognition by the Arctic States of any rights of other states in the region. Criterion (c) perhaps helps to redress that to some extent by its reference to the Law of the Sea, but it offers no statement of commitment by the Arctic States to recognise the rights of other states in the oceans, in particular, the rights of all states to access resources in the area beyond the 106 

Annex 2 to the Arctic Council Rules of Procedure (n 103) para 6.

336  Jill Barrett outer limits of the extended continental shelves of the Arctic States.107 Nor does it acknowledge that other states may have any legitimate interests in the region other than supporting the work of the Arctic Council, such as monitoring and limiting the effects of activities in the region on global climate change. For many years, the Council accepted only six states as permanent observers (France, Germany, Netherlands, Poland, Spain and the United Kingdom) in addition to 9 Intergovernmental and Inter-Parliamentary Organisations and 11 NGOs. In 2013, it accepted six more states (China, India, Italy, Japan, Republic of Korea and Singapore) but deferred a decision on the application of the European Union, pending a resolution of the ‘concerns of Council members’. This refers to Canada’s objection, due to a long-running dispute over seal hunting and an EU ban on the import of seal products, such as hide.108 Meanwhile, the EU will be allowed to observe Council meetings on an ad hoc basis. The admission of the six new Observer States occurred several years after their applications, during which there was considerable speculation as to the possible reasons for the reluctance of various Member States to accept them. One widely reported issue was the diplomatic row between Norway and China over the awarding of the Nobel Peace Prize to imprisoned Chinese dissident Liu Xiaobo.109 It was also reported that some Members were reluctant to admit any new observers, believing that their interests in the Arctic are very specific and best dealt with in a closed forum. The Council postponed observer applications by seven international organisations, including Greenpeace, until its next ministerial meeting in Canada in 2015. For other states and organisations wishing to apply for observer status in the future, such as Turkey, it is therefore difficult to predict how long the Council might take to decide, or what the outcome will be. The role of Observer States and organisations is set out in the ­Council’s Rules of Procedure and in the Arctic Council Observer Manual for Subsidiary Bodies, where it is summarised: ‘The primary role of observers is to observe the work of the Arctic Council. Furthermore, observers are encouraged to continue to make relevant contributions through their engagement primarily at the level of working groups.’110 Working groups

107 

Byers (n 1) 125–27. Jervell and A Macdonald, ‘Six Nations Win Seats on Arctic Council’ Wall Street ­Journal (15 May 2013) www.wsj.com/articles/SB1000142412788732476700457848462109849 3056. 109  See, eg, ‘Norway Wants to Block China from Arctic Council’ The Telegraph (25 January 2012) www.telegraph.co.uk/news/worldnews/europe/norway/9038782/Norway-wantsto-block-China-from-Arctic-Council.htm. 110 As adopted by the Arctic Council at the Eighth Arctic Council Ministerial Meeting (Kiruna, Sweden, 15 May 2013) www.arctic-council.org/index.php/en/about-us/ arctic-council/observers. 108 EE

Securing Polar Regions Through Int’l Law 337 are subsidiary bodies of the Council, attended by officials (not Ministers). Observers may, at the discretion of the Chair, make statements, present written statements, submit relevant documents and provide views on the issues under discussion. Observers may propose projects through an ­Arctic State or a Permanent Participant but the total financial contributions from all observers to any given project may not exceed the financing from Arctic States, unless otherwise decided by the Senior Arctic Officials.111 Much of the effectiveness of the Council comes from the strong output of its working groups and task forces on marine protection, environmental monitoring, black carbon, science co-operation, etc. The Observer States should therefore have a meaningful opportunity to participate in the technical work of the Council. Whether this will satisfy all of them remains to be seen. It may not provide an adequate opportunity to engage in highlevel policy issues at a high policy level, especially as there is no opportunity for Ministerial participation. At Ministerial meetings, observers may submit written statements but not attend. V. CONCLUSION

The adoption of the IMO Polar Shipping Guidelines and the new Polar Code does not seem to herald any new trend towards bi-polar international standard-setting. The application of the same set of standards to ships in both regions has proven to be very problematic as a result of the differences in the physical, political and legal geography of each region. Adjustments of text to accommodate legal concerns related to territorial sovereignty in one region tends to cause the text to unravel in relation to the other region due to quite different concerns, with the end result being a dilution of the substantive obligations overall. Although both regions face similar kinds of threats to their security, in most contexts more effective protection is likely to result from legally separate initiatives in each, underpinned by scientific and political co-operation between them. The Antarctic Treaty has been in force for over 50 years and is generally credited with having achieved its principal objective112 that Antarctica ‘be used exclusively for peaceful purposes and not become the scene or object of international discord’.113 An important factor in this achievement is that the ATS is open to participation by all states and those that previously campaigned for alternative systems of international governance, for

111 

ibid, paras 6 and 7. Antarctic Treaty Preamble and Article I—Peaceful purposes. See (n 11) above. 113  Report of the Secretary-General, ‘Question of Antarctica’ (2005) UN Doc A/60/222, para 118. Watts (n 1) Chapter 8, 205–08. 112 

338  Jill Barrett example, through the UN, have now joined. Achieving full voting status in each of its main bodies—the ATCM and CCAMLR—requires significant time, effort and investment in Antarctic activities, although collaboration with existing ATCPs can ease the way considerably. Admission is based on legal criteria and on a relatively transparent process so that states can proceed with their preparations with reasonable confidence as to the outcome. Observer organisations and international experts are also able to participate effectively in the ATS. To safeguard Antarctica against future risks, notably the possibility of states leaving the Antarctic Treaty, an increase in unregulated activities by non-state actors from states outside the ATS, or a Protocol review conference being called after 2048 to reopen the ban on mining, more states need to be attracted into the ATS, especially from Africa and the Middle East. But the ATCM seems to have reached a point where the advantages of broader international legitimacy may seem less immediate than the disadvantages of slowing down decision-making by increasing the number of veto-wielding ATCPs. Decision-making by consensus among the 29 ATCPs has already slowed down such that no major initiative has been agreed since the Liability Annex was adopted in 2005. It could be argued that the ATS has not recently faced any major challenge that required new regulation; but it remains uncertain whether institutionally there is enough flexibility to respond to a new challenge that could potentially threaten the stability of the ATS regime. It may be that the only way to achieve both flexibility and expansion is to revisit its absolute requirement for consensus decision-making in all contexts. It may also be useful to reconsider the idea of modifying the procedures and practices that relate to the approval of measures under Article IX of the Treaty. This could be done, for example, by reviewing the requirement for new measures to be expressly approved by all ATCP governments before they enter into force in certain cases.114 The Arctic Council, by contrast, needs clearer criteria and a more transparent process for the admission of non-Arctic States and others as observers. At present, the admission of new observers lies within the political discretion of the eight Arctic Council Member States. While the Council has responded positively to the recent group of Asian and European States knocking at its door, its response to further requests remains unpredictable. However it does not seem likely that the Arctic States will decide to put the Arctic Council onto a treaty footing in the near future. Rather, their present strategy is to negotiate treaties for specific subjects on an ad hoc basis. The two concluded so far—on search and rescue and 114  A proposal of this kind made in 2002 was supported by some ATCPs, but blocked by others. See ‘Approval of Measures under Article IX of the Antarctic Treaty: A Proposal to Improve the System’ XXV ATCM Working Paper WP-020 submitted by the United Kingdom.

Securing Polar Regions Through Int’l Law 339 on oil spills—are open only to the eight Arctic States. There are indications that the Arctic States are considering further treaties, possibly on scientific co-operation and on Arctic Ocean fishing. Non-Arctic States and the EU may be invited to discuss these matters and almost certainly would need to be parties to any treaty on fisheries for it to be effective. It would seem that, for the time being, the Arctic States see an advantage in keeping the Arctic Council as an informal forum in which only they have decision-making power and discretion to include or exclude others in policy or treaty negotiations. This may work well for as long as they do include other states and organisations in negotiations in which they have a strong interest. Further ahead however, the activities of non-Arctic States and their vessels and nationals, both within the high seas areas of the Arctic and beyond the Arctic region, could increase to the point that their adverse impacts on the region so concern the Arctic States that they become the demandeurs for closer engagement. This might then be the driver for putting the Arctic Council onto a treaty footing, with rights and obligations for non-Arctic States that bind them into a process of co-operation for the benefit of the region and an effective role for organisations. Whether this could be achieved without defining a general-purpose Southern boundary for the Arctic region is another ­matter; but if creative solutions to this issue are needed, the Antarctic ­ Treaty’s masterful ‘without prejudice’ sovereignty savings clause (­Article IV) should help inspire a solution. The Antarctic Treaty has already provided a suitable model for the establishment of the Arctic Council ­Secretariat and rules of procedure. It may provide further useful ideas for institutional development, albeit that considerable adaptation would be needed, not least to avoid the risk of the Arctic Council growing into an institution in which consensus decision-making prevents effective responses to new challenges to the security of the region.

340

13 Climate Change as a Threat to International Security MATTIA FOSCI

I. INTRODUCTION

T

HE TERM ‘CLIMATE change’ defines a significant and lasting ­alteration of the distribution of weather patterns due to a change in the chemical composition of the atmosphere. Although the ­phenomenon also occurs naturally, scientists believe that abrupt change will result from human emission of certain gases that trap solar radiation reflected by the Earth’s surface (so-called greenhouse gases). A higher concentration of greenhouse gases in the atmosphere would increase global temperatures and disrupt weather patterns that have been relatively stable for around 11,000 years, potentially causing serious and irreversible damage to human activities across the world.1 This chapter looks at how the security themes discussed in this book pan out in the context of the international legal regime to combat climate change. What are the security implications of climate change? What international norms have been developed to address the problem and how effective have such norms been? What are the implications of using security to frame the political discourse (politicisation) as well as the legal response to the problem ­(securitisation)? To what extent can international law address ­climate change and is there a better alternative to the current international framework? Since its debut on the political agenda, the security implications of c­limate change have been clear. As far back as 1971, prominent ­international law scholar Richard Falk argued that environmental change is a security issue and that there is an inverse relationship between the

1  SA Marcott, JD Shakun, PU Clark and AC Mix, ‘A Reconstruction of Regional and Global Temperature for the Past 11,300 Years’ (2013) 339(6124) Science 1198–1201.

342  Mattia Fosci likelihood of conflict and the time available to adapt to such change.2 This perspective informed early discussions on climate change between scientists and policy m ­ akers. In typical Cold War style, the 1988 Toronto Conference on climate change and security likened the threat of climate change to that of a global nuclear war.3 Similarly, in a speech given to the UN General Assembly on 8 November 1989, British Prime Minister ­Margaret Thatcher described climate change as ‘another insidious danger’ alongside the ‘conventional dangers [of war] with which international diplomacy has concerned itself for centuries’.4 Prominent policymakers and security experts have since remarked upon security concerns in the political n ­ arrative surrounding the issue.5 The conflation of climate change and security reflects the new conceptualisation of security problems beyond conventional military ­ ­confrontation. Mainly promoted by developed countries and the most vulnerable developing countries, the hard rhetoric on climate security has not triggered a ‘securitised’ response to the problem. Instead, a softer approach based on prevention, multilateralism and economic cooperation has informed the response of the international community, which is articulated around the provisions of the United Nations Framework ­Convention on Climate Change (UNFCCC) and its Kyoto Protocol.6 However, a refusal to deal with the short-term economic, social and ­geopolitical consequences, which action against climate change would bring about, has so far hindered the effectiveness of the UNFCCC and is still blocking further progress on negotiations. These problems have reignited the debate about climate security, casting doubts over the ­ ­ability of multilateral environmental negotiations to deal with urgent and ­complex global problems. Two events in 2007 signalled the onset of a renewed focus on c­ limate security. First, in April of that year, over 50 countries attended a UN ­Security Council debate on the issues of climate change and energy ­security.7 2  RA Falk, This Endangered Planet: Prospects and Proposals for Human Survival (New York, Random House, 1971) 353. 3  ‘The Changing Atmosphere: Implications for Global Security’ (Toronto, Canada 27–30 June 1988) Conference Proceedings, World Meteorological Organisation, 710. 4 M Thatcher, ‘Speech to United Nations General Assembly (Global Environment)’ (New York, 8 November 1989) www.margaretthatcher.org/document/107817. 5 One of the most vocal advocates of climate change is the former US Vice-President Al Gore, 2007 winner of the Nobel Peace Prize for his efforts to disseminate knowledge on the issue www.nobelprize.org/nobel_prizes/peace/laureates/2007/. 6  United Nations Framework Convention on Climate Change (adopted in New York, on 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC); Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted in Kyoto, Japan, on 11 December 1997, entered into force 16 February 2005) 2303 UNTS 148 (Kyoto Protocol). 7  UNSC, Security Council Debate on climate change as threat to international peace and security, 2007, Security Council 5663rd Meeting (New York, 17 April 2007) www.un.org/ News/Press/docs/2007/sc9000.doc.htm.

Climate Change as Threat to Security 343 Although the meeting did not produce any measurable or enforceable outcomes, many countries recognised that, if not addressed under the UNFCCC, climate change would, in the future, present a ­serious threat to international security. The rift that characterises UNFCCC negotiations also emerged on this occasion. On the one hand, the Group of 77 (G77) and China framed climate change as a ‘sustainable development issue’, while on the other, small island states and developed countries e­ mphasised the present and future security implications of the problem.8 Second, towards the end of 2007, the Organisation for Security and C ­ ooperation in Europe (OSCE) issued the Madrid Declaration on Environment and Security, stressing that environmental degradation could contribute to conflict and emphasising that climate change may magnify these risks.9 Concerns about climate security have been reaffirmed by various UN bodies,10 as well as regional and national security organisations, with an increase in recent years.11 It is likely that, if the current impasse continues, the focus on conventional notions of security will continue to grow. This chapter is structured as follows. Section II briefly explores the threats to international security posed by climate change, as identified in the literature. Section III discusses the international legal response to the problem provided by the UNFCCC regime. Section IV assesses the ­effectiveness of the UNFCCC legal regime—noting the intrinsic ­political fragility of environmental treaty-making, it speculates on the pros and cons of ‘securitising’ the problem. Building on the previous analysis, ­section V considers whether or not international law is able to provide effective preventive responses to environmental security threats and ­suggests that the time is ripe to consider the environmental and security agendas in an integrated fashion. II.  SECURITY IMPLICATIONS OF CLIMATE CHANGE

As discussed in Professor White’s introductory chapter to this book, with the end of the Cold War the notion of security has been ­reinterpreted 8 The United States’ position was somewhat closer to that of the G77, affirming that ‘energy, security, climate change and sustainable development were fundamentally linked’ and that ‘the most effective way to bolster security and stability was to increase the capacity of States to govern themselves effectively’, ibid. 9 Organization for Security and Co-operation in Europe, Madrid Declaration on ­Environment and Security, Ministerial Council (Madrid, 30 November 2007) MC.DOC/4/07. 10  The UN General Assembly later adopted two resolutions on climate change: UNGA Res 63/281, Climate change and its possible security implications, (11 June 2009) UN Doc A/RES/63/281; UNGA Res 65/159, Protection of Global Climate for Present and Future Generations of Humankind (4 March 2011) UN Doc A/RES/65/159. 11  See, for instance, the following database on national and international declarations and official documents on climate change and security: climateandsecurity.org/resources.

344  Mattia Fosci so as to encompass a host of threats coming from non-state actors12 (see ­Chapters 5, 8 and 9) affecting not only peace, but virtually all major aspects of the human condition, including the economy (Chapters 8 and 12), the environment and access to natural resources (Chapters 3 and 12), and even democratic principles and legitimacy (Chapter 11). Climate change is both a direct threat to security as well as a ‘threat ­multiplier’, ie a factor that makes other threats more likely to occur. A report by the UN Secretary-General on the security implications of climate change identifies the channels through which climate change ­ can ‘exacerbate existing sources of conflict and insecurity’.13 The report, which was prepared pursuant to UN General Assembly Resolution 63/281,14 is based on a comprehensive scientific review, as well as on the views of 35 Member States, four Member State groups and 17 regional and ­international organisations. A summary of the main climate-induced security threats, based on the UN classification, follows. A.  Threat to Territorial Sovereignty The most often cited security implication of climate change is the loss of territorial sovereignty due to rising sea levels. Warmer temperatures at the Poles cause the melting of the ice caps.15 The Intergovernmental Panel on Climate Change (IPCC) suggests that with a warming of 1.8 degrees Celsius, sea levels would rise between 18 and 38 centimetres by the end of the twenty-first century,16 but recent satellite observations show that sea levels are rising 60 per cent faster than IPCC predictions,17 and other projections suggest worst-case scenarios of 1.5 metre rises.18 12 The concept of human security was introduced in 1994 by the United Nations ­ evelopment Programme (UNDP) to include social, economic and environmental concerns: D UNDP, Human Development Report 1994: New Dimensions of Human Security (Oxford, Oxford University Press, 1994) 24–25. 13 UNGA, ‘Climate Change and its Possible Security Implications: Report of the ­Secretary-General’ (11 September 2009) UN Doc A/64/350, 6. 14  UNGA Res 63/281 (n 10). 15  The loss of sea ice has relatively little impact on global sea levels, major changes will happen with the melting of continental ice, particularly in Greenland and West Antarctica, where considerable melting has already been recorded. For a brief summary of the current scientific knowledge on the issue, see: www.ice2sea.eu/ice2sea-science and RZ Poore, RS Williams and C Tracey, ‘Sea level and Climate, U.S. Geological Survey Fact Sheet 002–00’ (2000) 2 pubs.usgs.gov/fs/fs2-00. 16  IPCC Fourth Assessment Report: Climate Change 2007, Working Group I, ‘The Physical Science Basis, Projections of Future Changes in Climate’, ipcc.ch/publications_and_data/ ar4/wg1/en/spmsspm-projections-of.html. 17  S Rahmstorf, G Foster and A Cazenave, ‘Comparing Climate Projections to ­Observations up to 2011’ (2012) 7 Environmental Research Letters 044035 http://iopscience.iop.org/­ 1748-9326/7/4/044035/pdf/1748-9326_7_4_044035.pdf. 18  Scientific Committee on Antarctic Research, Antarctic Climate Change and the ­Environment (Cambridge, Scott Polar Research Institute, 2009); US Army Corps of Engineers, Sea-Level Change Considerations for Civil Works Programs (Washington DC, Department of the Army, 2011).

Climate Change as Threat to Security 345 Sea-level rises present an existential threat for some states, the most ­ bvious example being low-lying small island states. In 2005, Papua o New Guinea’s Carteret Island had to resettle their 2,600 inhabitants in a neighbouring atoll due to sea-level rises.19 Countries such as the M­aldives and much of Polynesia may be submerged in the next few decades. The submersion of a country’s entire land mass would create legal problems concerning the legal status of stateless inhabitants and the inheritance of extinguished rights over shared resources, such as fisheries. Even larger countries with low-lying coastal areas would be at risk. Whilst in these cases the loss of territory would be partial, the overall human consequences could be as dramatic. For instance, 11 per cent of Bangladesh’s ­territory would be submerged if sea levels rise by 88 centimetres, d ­ isplacing ­millions from an overcrowded and exceptionally poor ­country.20 Ad hoc multilateral ­agreements should be concluded as a preventative measure to deal with the legal problems arising in these scenarios, particularly on migration.21 The international human rights principle of the prevention of statelessness could be used to strengthen the legal case for the application of preventative and precautionary measures in climate change mitigation.22 B.  Threat to Human Well-Being Climate change can also intensify threats to human well-being and the IPCC singles out five such threats.23 First, food production in ­developing countries would be hard hit by unsettled weather patterns—especially increased rainfall variability. For instance, cereal productivity is likely to diminish in low latitudes, especially Africa, with increased risks of ­hunger.24 Second, the IPCC predicts that water stress will escalate. Even with moderate warming, humid countries will experience more intense

19  International Organisation for Migration, Policy Brief, ‘Migration, Climate Change and the Environment’ (May 2009), cited in UNGA (n 13) 20. 20  N Mohal, Z Haque Khan and N Rahman, Impact of Sea level Rise on Coastal Rivers of Bangladesh, Coast, Port & Estuary Division (Institute of Water Modelling (IWM), Dhaka, ­Bangladesh, 2006) archive.riversymposium.com/2006/index.php?element=06MOHALNa sreen. 21  ibid. Some observers have spoken against this proposition, see J Mcadam, Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer (2011) 23(1) International Journal of Refugee Law 2. 22  UN High Commissioner for Refugees (UNHCR), ‘Climate Change and Statelessness: An Overview’ Submission to the 6th Session of the Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA 6) under the UNFCCC (Bonn, 1–12 June 2009). 23  RK Pachauri and A Reisinger (eds), Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Geneva, IPCC, 2007) sec 3.3.1S. 24  ibid, sec 3.3.2.

346  Mattia Fosci precipitations and flooding, while drought-prone countries will s­uffer drier conditions. Moreover, fast disappearing glaciers and reduced snow cover are expected to affect water availability for large populations dependent on glacier-fed river systems, such as India. Third, climate change can worsen existing health problems. Reduced access to ­drinking water favours the spread of water-related disease, disrupted agricultural production causes malnutrition and temperature changes may ­facilitate the spread of infectious diseases. Fourth, human settlements will be threatened by flooding, coastal erosion and more frequent and powerful extreme weather events, such as hurricanes, cyclones and typhoons.25 On top of these impacts, the IPCC also states that climate change is likely to negatively affect ­ biodiversity, potentially causing the extinction of 20 to 30 per cent of terrestrial animal and plant species vis-a-vis a warming between 1.5 and 2.5 degrees Celsius. Although the human consequences of mass biodiversity loss are uncertain, they will likely affect agricultural food production and human health. C.  Threat to Economic Development The UN Secretary-General report highlights that several Member States are particularly worried about the possible impact of climate change on the national economy.26 Plainly, impacts on agriculture, settlements and transport infrastructures and natural resources would also have negative economic consequences. The influential Stern Review suggests that ­climate change will cut revenues and raise spending needs, generally worsening public finances at the national level.27 Small countries may be unable to cope with such impact, particularly those whose economy relies heavily on economic sectors that are particularly affected by climate change, such as agriculture or tourism.28 In such cases, the impact of climate change can go beyond concerns about local development, poverty and conflicts and become a threat to national economic security. It is thus possible that the impact of ­climate change on these countries will cripple already fragile economies, w ­ orsening

25 ML Parry, OF Canziani, JP Palutikof, PJ van der Linden and CE Hanson (eds), ­ ontribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel C on ­ Climate Change (Cambridge, Cambridge University Press, 2007) sec 6.4.2; C Brown, E Corcoran, P Herkenrath and J Thonell (eds), Marine and Coastal Ecosystems and Human WellBeing: A Synthesis Report based on the Findings of the Millennium Ecosystem Summit (Nairobi, UN Environment Programme (UNEP), 2006). 26  UNGA (n 13) 14. 27 N Stern, Stern Review: the Economics of Climate Change (Cambridge, Cambridge ­University Press, 2006) vii. 28  Parry et al (n 25) sec 7.4.1.

Climate Change as Threat to Security 347 ­ overty and hunger.29 Inadequate response to climate-related stress, such p as ­insufficient action or draconian measures, could cause resentment in the general public, undermine political stability and foster conflict.30 The uneven distribution of climate change impact, which is anticipated to hit developing and least developed countries the hardest, further increases risks of institutional breakdown. D.  Threat to Peace and Security Besides being a threat to human and environmental security, climate change has major implications for peace. Studies show that the causes of conflict are manifold and that it is highly unlikely that environmental problems will trigger international conflict, for which cultural and economic factors seem more determinant.31 However, climate-related ­ stress can worsen pre-existing cultural and economic tensions and cause conflict. For instance, there is a risk of international disputes arising in the Arctic region, where the rapid melting of the ice sheet calls for regulating access to deep-sea mineral resources, as well as the passage of vessels through newly opened shipping routes.32 More commonly, however, climate stress could threaten peace and political stability within states, rather than between them. Outbursts ­ of violent conflicts are more likely in the context of weak governance, overpopulation and pre-existing environmental degradation.33 Poor ­governance is significant in two ways: first, by breeding over-consumption­ and resource scarcity it may raise tensions and increase competition between users; second, it weakens mechanisms for conflict resolution. In a vicious circle, failure to prevent violent escalations of conflict can further delegitimise institutions and worsen resource governance, resulting— in the worst cases—in an institutional breakdown.34 A study by the UN Environment Programme (UNEP) suggests that the conflict in Darfur, 29 

UNGA (n 13) 7. Abbott, An Uncertain Future: Law Enforcement, National Security and Climate Change (Oxford, FRIDE Research Group, 2008) 4. 31  G Baechler, ‘Environmental Degradation and Violent Conflict: Hypotheses, Research Agendas and Theory Building’ in M Suliman (ed), Ecology, Politics and Violent Conflict (London, Zed Books, 1999) 76; T Homer-Dixon, ‘On the Threshold: Environmental Changes as Causes of Acute Conflict’ (1991) 16(2) International Security 76; T Homer-Dixon and J Blitt (eds), Ecoviolence: Links Among Environment, Population, and Security (Lanham, Rowman and Littlefield, 1998). 32  C Emmerson, ‘Globalization of the Arctic is Unstoppable’ (2013) 69(7) The World Today www.chathamhouse.org/publications/twt/archive/view/193655 (members only). 33  J Barnett, Security and Climate Change (Tyndall Centre for Climate Change Research, Working Paper 7, October 2001) 4–9. 34  O Brown, A Hammill and R McLeman, ‘Climate Change as the “New” Security Threat: Implications for Africa’ (2007) 83(6) International Affairs 1148. 30  C

348  Mattia Fosci Sudan, was partly caused by decreased rainfall and desertification, which created tensions between farmers and herders over land use and access to water, and that the escalation of the conflict followed a similar path to the one described above.35 Poverty, inequality, demographic pressure and high dependence on rural activities were other important factors in the Darfur situation. Climate-induced migration may, in the future, also become a major cause of conflict. Migration will be the natural response not only to i­ nundations, but also to problems of environmental degradation, hunger and poverty. Although most migrants will remain within national borders, large-scale displacements may become international. This would plainly be the case with small island states, but even more populous countries may not be able to contain mass displacements within national borders. According to an influential study, the hotspots for climate-induced mass migration and conflict are Bangladesh, the Niger delta area, East Africa (particularly Somalia, Eritrea and Ethiopia) and Europe (as a destination of mass migration from Africa).36 In the worst-case scenarios predicted by the IPCC,37 the risks of ­international armed conflict may increase considerably. ­Environmental damage could be so serious that it would have a major impact on the global economy and development and cause massive migration. ­International conflicts may be triggered along existing fault-lines in the Middle-East and Africa and then spread to other countries. At present, these are ­speculations rather than predictions, but they further prove that climate change is best addressed through a preventive rather than a ­reactive approach. III.  THE INTERNATIONAL LEGAL RESPONSE: ACHIEVEMENTS AND SHORTCOMINGS OF THE CLIMATE CHANGE NEGOTIATIONS FROM A SECURITY PERSPECTIVE

When discussions on global climate change began in the late 1980s, the international community took a familiar approach in the negotiations of a regulatory response. Under the auspices of the United Nations, 165 states 35 UNEP,

Sudan: Post-Conflict Environmental Assessment (Nairobi, UNEP, June 2007). Campbell, J Gulledge, JR McNeill, J Podesta, P Ogden, L Fuerth, RJ Woolsey, ATJ Lennon, J Smith, R Weitz and D Mix, The Age of Consequences: The Foreign Policy and National Security Implications of Global Climate Change (Washington DC, Center for Strategic and ­International Studies, 2007) 57–59. 37 The IPCC has made projections of temperature increases and other ­ environmental impacts under six scenarios of atmospheric concentrations of greenhouse gases; the ­worst-case scenario predicts a global average surface warming of four degrees Celsius. See ­N ­Nakicenovic and R Swart (eds), IPCC Special Report on Emission Scenarios (Cambridge, Cambridge University Press, 2000). 36  KM

Climate Change as Threat to Security 349 signed the UNFCCC (hereinafter also ‘the Convention’), concluded on the margins of the 1992 Earth Summit on Sustainable Development in Rio de Janeiro.38 The Convention lays the foundations for a legal regime by setting out its objective and guiding principles and by setting up the autonomous institutional arrangements dedicated to fostering its implementation and subsequent development. However, the treaty does not contain legally binding obligations to reduce emissions of greenhouse gases, which is a matter that was left to subsequent discussions of the Contracting Parties.39 The framework approach had been used in other areas of environmental law with mixed results, but its appeal was boosted by the positive ­experience of the Ozone Convention and its 1987 Montreal Protocol.40 Interestingly, although the UNFCCC aims to ‘prevent dangerous anthropogenic interference with the climate system’41 in order to minimise threats to basic human activities (ie food production and economic development), it makes no explicit reference to security. Its detachment from the security discourse is also clear from the Convention’s endorsement of the legal principles of prevention and precaution, which contrast with the conventional security approach based on reaction. Instead, its focus is on equity, rather than on an antagonistic understanding of ­security as a zero-sum game, and it places emphasis on cooperation, which blurs the distinction between global and national interests.42 The language used in the Convention also lacks the peremptoriness that would be expected of a security treaty. Instead, rather than specific ­obligations, the UNFCCC only contains generic provisions to foster cooperation in the pursuit of ­climate change mitigation and adaptation and, for industrialised c­ ountries, it c­ ontains an ‘aim’ to stabilise greenhouse gas emissions at 1990 levels.43 The UNFCCC regime has three objectives, set out as three pillars in the treaty, to address climate change and minimise its security implications, namely, to prevent its further onset (mitigation); to adapt to its impacts (adaptation); and to promote the transfer of technology, information and financial assistance (cooperation).

38 

UNFCC (n 6); the Convention now has 195 parties. The Convention does contain some binding language, but this only concerns secondary issues, such as reporting and information exchanges, rather than direct actions to address the problem. Moreover, no compliance mechanism has been established under the Convention. 40  The Vienna Convention for the Protection of the Ozone Layer (signed on 22 March 1985 in Vienna, in force since 22 September 1988); the Montreal Protocol on Substances that Deplete the Ozone Layer (signed on 16 September 1987 in Montreal, Canada, in force since 1 January 1989). 41  UNFCCC (n 6) Article 2. 42  ibid, Article 3. 43  ibid, Article 4(2)(b). 39 

350  Mattia Fosci IV.  THE THREE PILLARS

A.  Climate Change Mitigation The main objective, and first pillar, of the regime is to prevent d ­ angerous interference with the climate by reducing greenhouse gas emissions, a practice known as climate change mitigation. Mitigation is primarily a ­scientific concept. The IPCC suggests that greenhouse gas concentrations in the atmosphere should remain below 450 parts per million if temperatures are to stay within a two-degree increase, which is the threshold before there is a situation of ‘dangerous’ climate change.44 It was clear that the soft language contained in the UNFCCC of 1992 and the lack of measurable emission reduction commitments could not have accomplished the objective expressed in Article 2. For this reason, the Conference of the Parties (COP) met three times between 1992 and 1997 in order to conclude the Kyoto Protocol, which, for the first time, ­established quantified emission reduction targets for industrialised nations.45 The adoption of the Kyoto Protocol after troubled negotiations was, at the time, hailed as a success of multilateralism, even though its effectiveness was thwarted by two factors. First, the Protocol’s emission reductions only concern developed nations at a time when rapidly industrialising economies, such as China, India and Brazil, are greatly increasing their own emissions. Second, the then largest emitter of greenhouse gases, the United States, did not ratify the Protocol on the grounds that the principle of common but differentiated responsibilities and respective capabilities (CBDR),46 which provides the legal basis for differential treatment of developing countries, put it at a competitive disadvantage against emerging economies. As a result, global emissions of greenhouse gases grew by a third between 1990 and 201047 and are today climbing even more rapidly.48

44 

Parry et al (n 25) sec 19.4.2.2. UNFCCC (n 6). 46 UNFCCC (n 6) Article 3. The common but differentiated responsibilities (CBDR) ­principle has two components: the first is that developed nations must take the lead in addressing climate change because they bear historic responsibility for the emission of greenhouse gases; the second is that they must do so because they have more capability than developing countries to reduce their emissions without hurting their development prospects. 47  It is interesting to note that such increase was uneven: while the EU slightly reduced its emissions by almost 10%, the US increased them by 15% and China by a staggering 315%. World Resources Institute, CAIT 2.0 Beta, Country GHG Emissions, online database www. wri.org/project/cait. 48  Global emissions of carbon dioxide increased by 3% in 2011 and by a further 1.4% in 2013: J Oliver, G Janssens-Maenhout, J Peters, Trends in Global CO2 Emissions: 2012 Report (The Hague, PBL/Ispra JRC, 2012); IEA, Redrawing the Energy Climate Map, World Energy Outlook Special Report (Paris, International Energy Agency, June 2013) 9. 45 

Climate Change as Threat to Security 351 B.  Climate Change Adaptation The second pillar of the regime is adaptation to the impact of climate change. Both humans and ecosystems are, by definition, capable of ­growing accustomed to a changing climate and have already done so in the past, but three factors hamper their ability to do so with the current state of climate change. First, ecosystem resilience is compromised by excessive natural resource use,49 for example, severely degraded forests are much more vulnerable to climate-related events, such as droughts, heat waves and forest fires.50 Second, human adaptive ­capacity is greatly reduced by pre-existing problems of environmental degradation, population pressures, over-consumption of natural resources, poverty and weak governance. Third, man-made climate change will unfold between 10 and a 100 times faster than any climatic change that has happened in the last 65 million years.51 Adapting to climate change thus requires ad hoc i­nterventions to preventively identify and address critical vulnerabilities. Providing international support for these interventions, particularly in the least developed countries and small island states, has become a ­pillar of the UNFCCC. Initially neglected by the parties, over the years the regime for adaptation has developed more successfully than that for m ­ itigation. Schipper identifies three schools of thought with regard to climate change responses: the ‘limitationist’ view, which focuses only on mitigation, the ‘adaptationist’ view, which believes in the spontaneous human capacity to adjust to the changes, and the ‘realist’ view, which accepts the reality of climate change and advocates for adaptation as a ‘crucial and realistic response option along with mitigation’.52 As noted by Kates, the debate on adaptation has increasingly moved towards realist views as a reflection of both the failure to agree on significant carbon cuts and of the increased understanding of vulnerability of developing countries.53 However, the change in discourse from reactive to proactive adaptation has not yet been matched by a commensurate increase in NorthSouth assistance in this area, which is capable of matching the estimated adaptation bill for developing countries (ie between 35 billion and

49  Ecosystem resilience can be defined as the ability of an ecosystem to self-regulate and adjust to vulnerability in the face of changing circumstances. 50  WF Laurance and GB Williamson, ‘Positive Feedbacks among Forest Fragmentation, Drought, and Climate Change in the Amazon’ (2001) 15(6) Conservation Biology 1529. 51 NS Diffenbaugh and CB Field, ‘Changes in Ecologically Critical Terrestrial Climate Conditions’ (2013) 341(6145) Science 486. 52  L Schipper, ‘Conceptual History of Adaptation in the UNFCCC Process’ (2006) 15(1) Review of European Community and International Environmental Law 84. 53 RW Kates, ‘Cautionary Tales: Adaptation and the Global Poor’ (2000) 45(1) Climatic Change 5.

352  Mattia Fosci 60 billion dollars per year by 2030).54 The establishment of the Adaptation Fund under the Kyoto Protocol is seen as a model for climate ­financing,55 but its capacity is still a fraction of the required total56 and there is still a need to mainstream adaptation investments in national development ­strategies.57 A more decisive change in practice may ensue from the launch of the Cancun Adaptation Framework,58 which promotes, inter alia, national and subnational adaptation planning, impact and financial needs assessments and disaster risk reduction strategies.59 It also requests the transfer of ‘long-term, scaled-up, predictable, new and additional finance, technology and capacity-building … to implement … adaptation actions, plans, programmes and projects’ in developing countries.60 Moreover, the COP set out to explore the issue of loss and ­damage, thus recognising the limits of preventative adaptation measures.61 The ­ language of loss and damage resonates with compensation and ­reparation, but a legalistic interpretation of the terms, which would allow judicial ­settlement of claims against major polluting countries, is highly ­improbable. Instead, reference to compensation may herald the creation of a financial mechanism that provides ex post international support to countries hit by extreme weather and slow onset climate events. C. International Cooperation on Finance, Technology and Information The third pillar of the Convention is international cooperation in the form of research, technology transfer, financial assistance, governance and exchanges of information.62 Under the Kyoto Protocol, ­industrialised

54 UNFCCC, Investment and Financial Flows to Address Climate Change (UNFCCC S ­ ecretariat, Bonn, 2007) 177; also see Brown et al (n 34) 1152. 55 B Horstmann and AC Abeysinghe, ‘The Adaptation Fund of the Kyoto Protocol: A Model for Financing Adaptation to Climate Change?’ (2011) 2 Climate Law 415. 56  D Tirpak and J Parry, Financing Mitigation and Adaptation in Developing Countries: New Options and Mechanisms (Montreal, Background Paper, International Institute for Sustainable Development, 2009) 21. 57  Z Shalizi and F Lecocq, ‘To Mitigate or to Adapt: Is that the Question? Observations on an Appropriate Response to the Climate Change Challenge to Development Strategies’ (2009) 25 The World Bank Research Observer 299. 58  UNFCCC COP Decision 1/CP.16, sec II. 59  ibid, para 14. 60  ibid, para 18. 61  The COP established a work programme in order to consider approaches to address loss and damage associated with climate change impacts in developing countries as part of the Cancun Adaptation Framework. UNFCCC COP Decision 1/CP.16, paras 25–29. 62  See, inter alia, UNFCCC (n 6) Articles 4(1)(3–8) and 11 and the Kyoto Protocol (n 6) Articles 2(1) and 10.

Climate Change as Threat to Security 353 c­ ountries can cooperate, with each other and with developing c­ ountries listed in Annex B, in their mitigation efforts through the so-called flexibility mechanisms.63 Although international assistance and c­ ooperation are aimed at achieving mitigation and adaptation, rather than being an end in themselves, they were interpreted by many parties (especially developing ones) as an avenue to foster sustainable ­development and green growth. This cooperative ethos is sanctioned by the CBDR principle, which establishes that industrialised countries must take the lead in tackling climate change by, inter alia, undertaking stricter emission cuts and by assisting developing countries in their mitigation and adaptation efforts.64 This is a very different approach from the narrow definition of national interests in the security discourse and of security cooperation, which is limited to groups of countries against other countries (eg NATO Member States versus the Members of the Warsaw Pact during the Cold War). The effectiveness of the climate regime in promoting cooperation is mixed. The treaties have fostered the transfer of environmentally sound technologies to developing countries, but this has been rather underwhelming due to the hortatory language used in the text of the Kyoto Protocol and to the lack of a compliance mechanism.65 Similarly, financial assistance for mitigation and adaptation activities has been substantial overall, but consistently below what is required. At the 2009 Copenhagen conference, developed countries announced their intention to mobilise 100 billion dollars per year to support mitigation and adaptation efforts in developing countries, a commitment confirmed in subsequent COP decisions.66 Yet it is uncertain whether debt-ridden developed nations will fulfil their pledges, particularly vis-a-vis the current stalemate in the negotiations. The flexibility mechanisms are a positive example of international ­cooperation, with over 170 billion dollars’ worth of pollution permits traded internationally in the period 2008–2011.67 However, in recent years,

63  Industrialised nations listed in Annex I to the Protocol can jointly implement emission reduction activities under Article 6 (joint implementation); recognised subnational entities can trade pollution permits internationally under Article 17 (emission trading); finally, both states and private entities can finance emission reduction projects in developing countries as part of their national mitigation efforts under Article 12 (clean development mechanism). 64  UNFCCC (n 6) Articles 4(2), (3), (4), (5), (7), 11, and Kyoto Protocol (n 6) Articles 3 and 10. 65  Z Fa Ma, ‘The Effectiveness of Kyoto Protocol and the Legal Institution for International Technology Transfer’ (2012) 37 Journal of Technology Transfer 82. 66  UNFCCC, Draft decision -/CP.15, Copenhagen Accord, Copenhagen, Denmark (2009) FCCC/CP/2009/L.7, para 8; the Copenhagen Accord was only ‘noted’ by the COP: UNFCCC, COP Decision 2/CP.15, Copenhagen Accord, Copenhagen, Denmark (19 ­December 2009) FCCC/CP/2009/11/Add.1. 67  A Kissoy and P Guigon, State and Trends of the Carbon Markets 2012 (Washington DC, World Bank, 2012) 10.

354  Mattia Fosci cooperation has stagnated in the private sector, with the carbon market languishing and the Clean Development Mechanism (CDM)68 close to ­collapse.69 This negative trend is caused by the lack of market confidence in new regulatory measures for the post-Kyoto period, which underlies the fragility of ‘green’ economic cooperation and its dependency on ­international law. Progress is blocked by a stalled negotiation process. Although the Kyoto Protocol set targets for only a five-year commitment period, ­running from 2008 to 2012, the UNFCCC parties intended to establish a long-lasting legal architecture based on an indefinite succession of progressively tighter caps of emissions in subsequent commitment periods. Ever since the Kyoto Protocol’s entry into force in 2005, the parties’ main worry has been how to ensure steeper reductions from all major economies after Kyoto. At the 2007 Bali Conference the parties launched negotiations for a new instrument that would bind all major developing countries.70 The new instrument should have been concluded at COP 15 in 2009, but the ­parties failed to reach an agreement on that occasion.71 The parties have since struggled to build enough momentum to carry the negotiations forward. The 2011 Durban COP launched a second roadmap (called the ‘Durban Platform’) to conclude a new ‘instrument with legal force’ by 2015, which would enter into force in 2020.72 The 2012 Doha COP introduced a work programme that should establish an international mechanism to address ‘loss and damage’ from extreme climate events,73 thus emphasising the financial dimension of international climate security. Finally, the 2013 Warsaw COP saw little progress in the negotiations, but ‘urged’ parties to

68  The CDM allows a developed country (and authorised subnational entities) to meet its emission reduction or limitation commitment by financing emission reduction or removal projects in developing countries. It is established under Article 12 Kyoto Protocol (n 6). 69 A 2013 study suggests that a collapse in the price of carbon credits has wiped $66 ­billion off the value of investments made under the CDM, and that this failure will be an ­‘insurmountable barrier for future private investment in climate change mitigation’. L Philip, Stranded Costs from the Demise of the Clean Development Mechanism, CO2 (Spain, Innovaciones y Soluciones, 2013). 70  UNFCCC COP Decision 1/CP.13. 71 Complete disarray of the negotiations was averted by a small group of prominent ­countries. They concluded the Copenhagen Accord (n 66), which is a document containing, inter alia, voluntary emission reduction pledges and the promise of greatly increased ­financial support to developing nations. 72  UNFCCC COP Decision 1/CP.17, ‘Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action’ (Durban, South Africa, 2011) FCCC/CP/2011/9/ Add.1. The issue is still contentious, however, with developing countries demanding the extension of the Kyoto Protocol alongside the new instrument and developed nations ­pushing for its incorporation in the new treaty. 73  UNFCCC COP Decision 3/CP.18, ‘Approaches to Address Loss and Damage ­Associated with Climate Change Impacts in Developing Countries that are Particularly Vulnerable to the Adverse Effects of Climate Change to Enhance Adaptive Capacity (Doha, UAE, 2012) FCCC/CP/2012/8/Add.1.

Climate Change as Threat to Security 355 put their voluntary emission reduction targets or nationally appropriate mitigation actions on the table by the following meeting of the parties, to be held in Lima, Peru, at the end of 2014.74 Meanwhile the Kyoto Protocol was extended into a new commitment period in order to avoid a legal vacuum during the timeframe before the entry into force of the new instrument, but key countries have opted out of this second phase and those who have remained in have agreed only bland emission cuts. The new instrument should bind all parties in ­reducing their emissions or limiting their increase by a measurable amount, p ­ erhaps reinterpreting the CBDR principle so as to allow a more nuanced differentiation between developed and developing nations. Yet, industrialised and rapidly growing economies (particularly the BASIC group of ­countries)75 are still at loggerheads over the application of the CBDR p ­ rinciple. Unless the major emerging economies accept to ­decisively cut their domestic emissions, any reduction in Annex I countries emissions will have l­ittle overall effect on the climate.76 Thus, we are heading towards a much warmer, more climatically unstable and more insecure world.77 V.  THE FAILURES OF THE INTERNATIONAL LEGAL RESPONSE TO CLIMATE CHANGE AND THE SECURITISATION OF THE PROBLEM

The UNFCCC regime has succeeded in engaging virtually the entire international community in a collaborative effort to address climate ­ change and it has ensured that all measures were decided inclusively and equitably. However, the limits of this process are evident, leading some observers to consider consensus negotiations to be a major obstacle to progress and to advocate instead for ‘minilateralism’ over ­multilateralism.78 The recent conclusion of bilateral and multilateral agreements on climate

74  UNFCCC COP Decision 1/ ‘Further Advancing the Durban Platform’ (Warsaw, Poland, 2013) FCCC/CP/2013/10/Add.1, para 4(a–d). 75 BASIC is an acronym for Brazil, South Africa, India and China. The four emerging economies have long dominated the G77 group of countries at the UNFCCC negotiations and since 2009 they have officially acted as an independent group while also remaining in the G77. Disagreement is most pronounced between the two super-polluting powers, the US and China. 76  Suffice to say that China, a developing country not covered by the Kyoto Protocol, is today the biggest emitter of greenhouse gases, with well over 20% of global emissions. Other emerging economies, such as India, Brazil, Indonesia and South Africa also account for an increasingly large share of emissions that, if unchecked, would cancel out any gain in the Organisation for Economic Co-operation and Development countries; see www.wri.org/ project/cait. 77  See, inter alia, the online measurement service Climate Action Tracker: climateactiontracker.org/. 78 R Eckersley, ‘Moving Forward in the Climate Negotiations: Multilateralism or ­Minilateralism?’ (2012) 12(2) Global Environmental Politics 24.

356  Mattia Fosci change demonstrates the frustration many countries have with the UN negotiations. Some agreements have sectoral scope and are based on public-private partnerships, such as those concerning renewable energy79 and forestry.80 Others operate across sectors and have a distinctive trade component, such as the 2006 non-legally binding charter of the new ­Asia-Pacific Partnership for Clean Development and Climate between Australia, Japan, the United States, China, India, and South Korea.81 The 2009 Copenhagen Accord has introduced a pledge-and-review system based on unilateral country proposals of nationally-defined ­ emission reduction caps, which are only noted by the COP.82 This ­ ­bottom-up approach is a more politically palatable solution for major developed and emerging economies, but the absence of collectively-­ negotiated t­ argets and of a compliance system still makes climate change mitigation a purely voluntary effort and undermines confidence that national action will be reciprocated by other countries.83 Other observers have blamed the current stalemate on a resurgence of resource politics, the predominance of a competitive ethos over a cooperative one and the triumph of short-termism and vested interests.84 According to this view, it is the role of powerful national lobbies in key countries, rather than the complexities of the negotiation process, that is causing this inward-looking stance. Unlike other environmental issues, climate change has huge economic ramifications and consequences for ­virtually every aspect of public policy. Democratic governments often do not have s­ ufficient political support to make the necessary changes to reduce ­emissions without paying a heavy electoral price. The problem is r­ einforced by worries about competitiveness at a time when developed countries are losing their economic leadership and fast-growing­ 79  For instance, the Renewable Energy and Energy Efficiency Partnership (REEEP) is an international initiative that aims to attract investments in the renewable energy and energy efficiency sectors in developing countries www.reeep.org. 80 A number of bilateral agreements were concluded in this sector. Amongst the most important are Memoranda of Understanding establishing joint partnerships between ­Norway and Indonesia (2010) and Norway and Guyana (2009), which triggered extensive policy action in developing countries. 81  The Partnership fosters cooperation in research and development of clean ­technology, while reaffirming the continued economic use of fossil fuels. Charter for the ­Asia-Pacific Partnership on Clean Development and Climate (Sidney, January 2006) www.­ asiapacificpartnership.org/Charter.pdf. 82  Copenhagen Accord (n 66) para 4 and Annex I. 83  D Bodansky, ‘A Tale of Two Architectures: The Once and Future of the UN Climate Change Regime’ (SSRN, 2011) 15, ssrn.com/abstract=1773865. 84 AM McCright and RE Dunlap, ‘Defeating Kyoto: The Conservative Movement’s Impact on U.S. Climate Change Policy’ (2003) 50(3) Social Problems 348; M Paterson and M Grubb, ‘The International Politics of Climate Change’ (1992) 68(2) International Affairs 293; RA  Payne, ‘The Geopolitics of Climate Change’ (2007) 16 Sustain: A Journal of Environmental and ­Sustainability Issues 9; L Wang, M Gu and H Li, ‘Influence Path and Effect of Climate Change on Geopolitical Pattern’ (2012) 22(6) Journal of Geographical Sciences 1117.

Climate Change as Threat to Security 357 e­ conomies are unwilling to put their growth prospects at risk. The combined effect of governmental short-termism, international competition and a clumsy negotiation process has generated a paradoxical situation. In order to m ­ aximise their short-term national economic interest, ­countries are eschewing a cooperative solution, which they feel, each from their own perspective, to be unfair and unduly burdensome. The resulting environmental anarchy greatly increases the risk of abrupt climate change developments that threaten security and national interests more than a cooperative solution would do. This situation is a typical example of H ­ ardin’s ‘tragedy of the commons’ dilemma.85 Moreover, the stalled UNFCCC process is undermining the ­credibility of global governance institutions and of international environmental law. Failure to agree on a new instrument by 2015 would question the ability of international law to deal with complex global problems and may lead to a breakdown in negotiations for new emission reductions, as foreseen in the Durban Platform.86 In this scenario, countries would probably resort to unilateral responses,87 which in turn may increase ­international ­tensions and the risk of conflicts as states abandon the norms of ­diplomacy.88 A ­possible antidote to the breakdown of trust in the international legal system could be the deferral to international ­security institutions of the power to respond to climate change.89 It is worth ­asking whether a more traditional approach to security should be considered, at least at the t­heoretical level, not only to deal with the challenge of ­climate change mitigation, but also to cope with the increasingly heavy ­consequences of the phenomenon. We are looking, in other words, at the possibility that emergency security powers could overcome a stalemate

85  The ‘tragedy of the commons’ is an economic theory according to which rational actors acting independently and in their self-interest are bound to deplete a shared resource to the extent that it damages the group’s interest and, in the long-term, their own interest too. In this case, the atmosphere can be seen as a shared resource which—absent an effective governance mechanism—states pollute indiscriminately in pursuit of their short-term ­economic ­interest, only to pay a higher economic price later. See G Hardin, ‘The Tragedy of the C ­ ommons’ (1968) 162 Science 3859, 1243–48. 86  UNFCCC (n 72). 87  N Frankcome, ‘Climate Change, Security and Sustainable Development. Report of the Conference “From Bali to Poznan—New Issues, New Challenges”’ (The Hague, IES, 2008) 25 www.envirosecurity.org/activities/diplomacy/gfsp/climate/FBTP_Report.pdf. 88  Abbott (n 30) 6. 89  Given the global nature of the problem, a response should concern primarily the UN Security Council. However, targeted actions on adaptation can also be managed by regional security organisations. For instance, the Regional Security System in the Caribbean Region and the Caribbean Community (CARICOM) Treaty on Security Assistance among ­CARICOM Member States already deal with environmental issues such as fisheries ­protection, ­pollution control and other natural disasters. See: Treaty Establishing the Regional Security System (Grenada, 5 March 1996) Article 4(1); Treaty on Security Assistance among CARICOM ­Member States (St Kitts and Nevis, 6 July 2006) Articles 3 and 9(1).

358  Mattia Fosci in the multilateral process and stimulate coordinated action on mitigation and adaptation. Two legal approaches have been suggested to deal with the current ­stalemate.90 The ex-ante approach advocates prevention in the UNFCCC legal regime, conveniently ‘upgraded’ with security concerns. ­Framing a problem in terms of security gives it a certain gravitas and implies immediate, decisive action. This line of reasoning sees security as a ­ tool to ‘politicise’ the problem of climate change.91 Recognition by the ­international community that climate change poses a threat to human and international security should place the UNFCCC high on the political agenda, outweighing, in principle, competing concerns, such as trade and the economy.92 The concept of environmental security was originally introduced with the aim of exposing the inadequacy of militarised practices of security, the porous nature of sovereignty in the face of environmental change, and ­ elevating environmental problems from the level of ‘low politics’ to ‘high politics’ ­ so that states would commit as much energy and resources to addressing ­environmental problems as they do to other security problems.93

In this case, the issue of environmental security would be used to rally ­support for the steep cuts in emissions, to be agreed under the UNFCCC legal regime, rather than altering the current legal approach to the ­problem. As noted in the introductory section, there have been two waves of ­securitisation in climate change discourse: an early wave, prior to the conclusion of the 1992 Framework Convention, and a recent wave in ­reaction to the slow progress of the negotiations. In neither case has the hard rhetoric produced meaningful legal consequences. The second legal approach is the ex post ‘securitisation’ of the response to climate change if politicisation fails.94 This approach would use ­current international security mechanisms to respond to climateinduced threats to peace and security. Reliance on Chapters VI and VII of the UN ­Charter would allow the use of executive powers and expedient extraordinary measures to react to a manifest threat, but not to prevent it. Moreover, action would be limited to cases in which climate change triggers ­ traditional warfare between two or more states. Threats to human ­security, and even threats to national security, that do not result

90  F Sindico, ‘Ex-Post and Ex-Ante [Legal] Approaches to Climate Change Threats to the International Community’ (2005) 9 New Zealand Journal of Environmental Law 209. 91  MJ Trombetta, ‘Environmental Security and Climate Change: Analysing the Discourse’ (2008) 21(4) Cambridge Review of International Affairs 589. 92  ibid 234–37. 93  Barnett (n 33) 12. 94  Trombetta (n 91) 599.

Climate Change as Threat to Security 359 in a war (such as the loss of national territory) would not be covered. International security law is thus ill-suited to provide the means for the deployment of emergency powers to mitigate climate change. Indeed, the 2007 debate in the UN Security Council highlighted the divisions between developed countries, in favour of a re-definition of its mandate to embrace climate security, and emerging developing countries, keen to exclude climate change from the global security agenda.95 A recent statement of the UN Security C ­ ouncil expressed concern over the possible adverse effects of climate change on security, but clearly stated that the Council’s mandate is limited to situations ‘when such issues are ­drivers of conflict, represent a challenge to the implementation of ­Council ­mandates or endanger the process of ­consolidation of peace’.96 Time may play into the hands of a securitised solution. As the negotiations stall and emissions continue to rise, the probability of severe climate change impact increases and so does the likelihood that these will have significant consequences on the security of individuals and the countries that they inhabit. If the UNFCCC does not make more progress in the next two years than it has made in the last six, the security implications of ­climate change will become too big to be ignored. Security institutions may then take a much more proactive stance. However, an unorderly political transition from the current legal regime to a security-based one is likely to cause serious problems. First, the ­international response may focus on traditional notions of international security rather than on new concepts of human security. This would ­prioritise military intervention and the management of conflicts arising from environmental damage over measures to protect human security and minimise environmental impact. Interventions may follow the logics of reaction and retribution rather than prevention and cooperation or, when they do focus on prevention, the emphasis on security may lead some countries to adopt unilateral measures that further increase tensions, such as erecting barriers to migration. Second, a focus on climate security could distract attention from the socio-environmental sources of conflict that are only exacerbated, but not caused, by climate change—poverty, weak governance, over-­consumption and environmental degradation. These problems could be addressed if countries invest adequately in adaptation, whereas they would most likely be overshadowed by the ‘high politics’ of security and by the national agendas of developed countries.97 95  F Sindico, ‘Climate Change: A Security (Council) Issue?’ (2007) 1 Carbon and Climate Law Review 34. 96  UNSC Presidential Statement 6587 (20 July 2011). 97  Brown et al (n 34) 1154.

360  Mattia Fosci Third, the securitisation of the issue would further complicate problems of fragmentation in international law. Existing conflicts of norms between regimes, such as climate change mitigation and trade, may be resolved through unilateral decisions that increase fragmentation and further uncertainties in the international legal system. Unilateral trade restrictions on fossil fuels or highly carbon-intensive goods and services, for instance, may trigger trade wars and unravel the World Trade ­Organisation system. Fourth, if concerns about climate security were handled by i­ nternational security institutions, the democratic deficit of the Security C ­ ouncil may fail to engender the necessary cooperation from the international ­community98 and may result in contested decisions that are perceived as being illegitimate. Alternatively, regional security institutions may make bold moves to protect the security of their members, which, in turn, create tensions with outside states and other regional groups that may worsen international security overall and hamper global cooperative solutions. VI.  POLITICS, MULTILATERALISM AND CLIMATE SECURITY: WHAT ROLE FOR INTERNATIONAL LAW?

Problems in the UNFCCC arena are due, in part, to the intrinsic f­ ragility of the consensus decision-making process at the UN and, perhaps in larger part, to the political resistance by vested interests in key countries, as well as to the enduring geopolitical confrontation between the US and China. Failure to preventively address climate change threats through ­multilateral negotiations will make a securitised response more likely. One may be tempted to consider the securitisation of climate change a second-best solution that becomes increasingly desirable as countries fail to break the deadlock in the UNFCCC. Yet the securitisation of climate change may, in turn, create a host of new legal and political problems. The i­nadequacy of this area of international law to deal with complex future problems, its apparent inapplicability to cases that do not involve traditional inter-state conflict and the intrinsic legitimacy deficit of ­ ­security institutions could arguably sanction the end of an international legal s­ olution to the p ­ roblem, and the predominance of power politics may result in new international tensions. Other areas of international 98  The fact that the two major polluters responsible for over 50% of emissions (the US and China) both have a seat on the Security Council may make it easier to negotiate d ­ rastic measures in such a forum. However, many important geopolitical players—such as B ­ razil, ­Russia, India, China and South Africa, the Organisation of the Petroleum Exporting C ­ ountries (OPEC) countries, Africa and much of Europe—do not enjoy the same privileges and powers of the Security Council permanent members and may object on the basis that any decision taken in that context is illegitimate. During the 2007 Security Council debate, developing countries made it clear that a solution to climate change must be based on global consensus and that the Security Council was not the appropriate forum for such discussions. UNSC (n 7).

Climate Change as Threat to Security 361 law, such as trade and human rights, are either of no assistance or are ­hampering the progress of climate change law.99 Is one therefore allowed to conclude that there is no space for ­international law in this area and that the only solution to the crisis will be of an eminently political (ie extra-legal) nature? This analysis should be interpreted, counter-intuitively, as a warning that in order to solve ­climate change there is no alternative to international law. The absence of ­international legal norms and the affirmation of realist politics (in a ­Hobbesian sense) would both fail to address the cause of climate change and to promote adaptation to its impacts. This would, in turn, further heighten security problems. International law provides the tools to cooperatively address global environmental problems. It has had the merit of initiating a dialogue across the community of states, of increasing knowledge, fostering cooperation and the transfer of resources, addressing equity concerns and avoiding unilateral actions and fragmentation. The fact that international law is insufficient to solve the climate crisis does not mean that it is also ­unnecessary, what is needed is not less international law but more (national and international) politics. Politics and international law have long been seen as separate domains of international relations, evolving autonomously and with a certain disdain for each other. Only recently have scholars begun to realise ­ the contribution of an interdisciplinary perspective in understanding the behaviour of states and other international actors.100 The history of the UNFCCC regime shows how international law influences, in a constructionist ­fashion, the way states frame a problem and what they consider politically acceptable and unacceptable behaviour (see, for instance, the EU leadership stance on its 2020 Climate Package whereby it committed to reduce its emissions to 30 per cent if other countries showed c­ omparable efforts in ­international negotiations).101

99 D Brack, M Grubb and C Windram, International Trade and Climate Change ­ Policies (­London, Earthscan, 2009); S Charnovitz, ‘Trade and Climate: Potential Conflicts and ­Synergies’ in JE Aldy, J Ashton, R Baron, D Bodansky, S Charnovitz, E Diringer, TC ­Heller, J ­ Pershing, PR Shukla, L Tubiana, F Tudela and X Wang, Beyond Kyoto Advancing the ­International Effort against Climate Change (Prepared for the Pew Center on Global Climate Change, 2003) www.crcresearch.org/files-crcresearch/File/301_1074798164.pdf. 100  AM Slaughter Burley, ‘International Law and International Relations Theory: A Dual Agenda’ (1993) 87 American Journal of International Law 205; AM Slaughter, AS Tulumello and S Wood, ‘International Law and International Relations Theory: A New Generation of ­Interdisciplinary Scholarship’ (1998) 92 American Journal of International Law 369; C ­Reus-Smit, The Politics of International Law (Cambridge, Cambridge University Press, 2004). 101  European Commission, ‘Limiting Global Climate Change to 2 Degrees Celsius: The Way Ahead for 2020 and Beyond’, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions (Brussels, 2007) COM(2007) 2 final.

362  Mattia Fosci Most importantly, climate change is a textbook case of the influence of both international politics and domestic politics on international law. The former is epitomised by the geopolitical battle between the US and China, and between developed and developing countries, about the r­eciprocal legal obligations to reduce emissions. The latter is demonstrated, inter alia, by the failure to pass climate change legislation by the Obama ­administration and its impact on international discussions.102 ­International law will only advance if the political environment does so too—and the politics of climate change are bound to change with the c­limate. It is likely that a major shift in the position of key countries will only happen when major polluting countries face the implications of ­climate change for their national security. In particular, a large part of China’s population lives in low-lying coastal areas under threat from r­ising sea levels. ­Similarly, the US, the second largest emitter globally, faces increasing risks of extreme weather events, such as droughts, wildfires, hurricanes and the like. Although the dynamics of mobilisation are different (topdown ­government action versus democratic discourse), events capable of modifying the perception of what is in the national interest are crucial to mobilising against climate change, and security has a key role in swaying opinion. Unfortunately, by that time the chances of avoiding dangerous ­interference with the climate may be all but evaporated. All countries will thus be called on to put in place dramatic changes in the way they ­produce the energy that powers their economy, use the land that feeds their ­people, build their cities and infrastructures and adapt to a mutable and ­violent environment. They will also be called on to deal with the social and ­political tensions that arise from environmental stress and from other countries’ inability to deal with such stress. This is a hugely demanding task that can only be tackled cooperatively and, for this, the set of tools provided by international law will prove decisive. Three conditions seem conducive to a future positive solution of the climate crisis. First, the UNFCCC process must not be left to unravel ­completely. It is true, as seen above, that the regime is unlikely to deliver meaningful emission reductions in the short to mid-term. Yet ­accusations of it being a distraction and calls for its dismantlement ignores the ­catalytic role played by a global forum where problems are discussed

102  In the second half of 2009, the US Congress discussed and voted on the American Clean Energy and Security Act of 2009 (HR 2454), also known colloquially as the Waxman-Markey Bill, which would have established an emissions trading scheme similar to the one used in the EU and would have paved the way for the US to make a measurable emission reduction commitment at the Copenhagen COP. The bill was approved by the House of Representatives in June 2009, but was later defeated in the Senate due to the opposition of the Republican wing and, many political observers argued, due to the Obama administration spending all of its political capital on the healthcare reform. The defeat contributed to the failure to agree on a new climate change treaty in Copenhagen.

Climate Change as Threat to Security 363 constructively, countries can clarify and continuously re-define their own positions and solutions are proposed and assessed. The elimination of communication channels may foster unilateral responses that, besides being ­ineffective, can increase international tensions. It is thus worth ­keeping international discussions on climate change going, even in the absence of political will. In this sense, Bodansky’s suggestion of a UNsanctioned bottom-up approach to climate change mitigation is ­sensible, as long as this is seen as a temporary measure to foster international ­cooperation and dialogue, experiment with technologies and techniques that reduce the economic burden of climate change mitigation and defuse the t­ensions arising out of failed attempts to establish a command-andcontrol ­Kyoto-style mechanism. Second, the international community must now engage in genuine ­discussions about the implications of worse-case climate change scenarios for security, and on the responses it must put in place. Such discussions should not trigger immediate securitised responses, but rather be ­explorative and preventive, facilitating information sharing and early preparedness. Discussions on climate security impacts are perhaps b ­ etter placed outside the UNFCCC in order to avoid overburdening the discussions, but they should be somehow linked to the negotiations, should be ­inclusive and should be seen as legitimate by the international community. Better knowledge of the security implications of climate change, the ­seeping of security information in international political circles and increased awareness of public opinion would help ground the sometimes theoretical debate on ‘emissions’ into easy-to-grasp consequences and may improve future adaptive capacity, whilst also influencing the ­political discourse around mitigation. Third, scholars should better explore the links between climate change and security law to determine (a) whether and to what extent the UNFCCC can (and should) be considered, in the near future, a security treaty, or whether new legal instruments should be developed; (b) what implications this would have on the law and politics of climate change; and (c) what legal changes should be made, in due course, to reflect the newly acquired status of the UNFCCC regime so as to combine its cooperative and egalitarian ethos with the decisiveness and efficacy of security mechanism. For instance, derogation from the consensus principle could be ­justified on the basis of security concerns, or ad hoc links could be established between the UNFCCC COP and international security institutions. This field of analysis must combine the analytical tools provided by international law, international relations theory and other disciplines to inform better decision-making,103 much in the same way as economic research is influencing international climate policy.

103 

Slaughter et al (n 100) 369.

364  Mattia Fosci VII. CONCLUSION

In conclusion, climate change is a paradigmatic example of post-Cold War threats to international and human security. It has far-reaching ­consequences for virtually all aspects of the human condition, from the environment to the economy and from health to peace, which make it as much an urgent problem as a difficult one to be dealt with through the traditional categories of international law. The effectiveness of the international legal regime established to counter the problem of climate change is limited by intrinsic legal problems and extrinsic political difficulties. Consensus negotiations move at the speed of the slowest state parties and are easily blocked by vested interests, political short-termism and ­international competition. The inadequacy of international law to deal with global environmental threats is now apparent, and solutions are not at hand. An appreciation of the security implications of a rapidly changing ­climate could help policymakers put in place more effective responses. The reactive and non-inclusive nature of international security laws and institutions is inadequate to mitigate the problem. However, as ­emissions continue to rise and the frequency and intensity of extreme climate events increase, building adequate adaptation and rapid response capacity becomes critical. The ‘securitisation of climate change adaptation’ is an increasingly likely possibility. At the same time, the major involvement of security experts, international organisations and domestic agencies in the climate change debate would support the ‘politicisation of climate ­security’ that can provide momentum to collaborative mitigation efforts. The time is ripe to open a major debate on these issues.

14 Cyber-Threats and International Law NICHOLAS TSAGOURIAS AND RUSSELL BUCHAN

I. INTRODUCTION

S

TATES, CORPORATIONS, INDUSTRY and individuals have become increasingly dependent on information technologies and networks in order to carry out their manifold activities. Although their use yields immense benefits, such technologies and networks have also become a source of significant threats.1 Given the relative ease and speed at which malicious cyber activities can be executed, the low cost of cyber ‘­weapons’, the anonymity that cyberspace affords and the interconnectivity of networks, malicious cyber activities pose a serious threat not only to ­individuals, corporations and industry, but also to states. The role of international law can be important, not only in maintaining access to cyberspace and in facilitating its multiple operations, but also in dealing with the threats that arise in and from cyberspace. This is because cyberspace, that is, the global digital communications and ­information infrastructure,2 is international space and thus subject to international 1 See, eg remarks by former US Secretary of Defense Panetta on Cybersecurity to the Business Executives for National Security, New York City (11 October 2012) www.defense. gov/­transcripts/transcript.aspx?transcriptid=5136. JR Clapper, Director of National Intelligence, ‘Statement for the Record Worldwide Threat Assessment of the US Intelligence Community Senate Select Committee on Intelligence’ (12 March 2013) http://online.wsj.com/ public/resources/documents/DNIthreats2014.pdf. For recent malicious cyber incidents see ‘Web Slows under “Biggest Attack Ever”’ The Telegraph (27 March 2013) www.telegraph. co.uk/technology/internet-security/9957063/Web-slows-under-biggest-attack-ever. html and ‘South Korean Banks and Broadcasters Paralysed by Hackers’ The Telegraph (20 March 2013) www.telegraph.co.uk/news/worldnews/asia/southkorea/9941975/ Hackers-paralyse-South-­Korean-banks-and-broadcasters.html. 2 The US Government has defined cyberspace as ‘a domain characterized by the use of ­electronics and the electromagnetic spectrum to store, modify, and exchange data via ­networked systems and associated physical infrastructures’ US Department of Defence (DoD), The National Military Strategy for Cyberspace Operations (December 2006) 3; The UK Cyber Security Strategy: Protecting and Promoting the UK in a Digital World (London, UK ­Cabinet Office, 2011) (2011 UK Cyber Security Strategy) 11 www.gov.uk/government/uploads/­ system/uploads/attachment_data/file/60961/uk-cyber-security-strategy-final.pdf. ‘Cyberspace is an interactive domain made up of digital networks that is used to store, modify and

366  Nicholas Tsagourias and Russell Buchan law.3 In light of this, the objective of this chapter is to identify the v ­ arious international law regimes that apply to the most serious cyber-threats and to assess their adequacy. The chapter will be structured as follows. In section II the most serious threats arising in and from cyberspace will be identified and section III will present the main international law regimes that apply to them. Section IV will focus on one type of cyber-threat, cyberattacks, and assess the extent to which the international law regime on the use of force (the jus ad bellum) can effectively address this type of threat. Section V will offer some general comments on the role of international law in managing cyber-threats. II. CYBER-THREATS

As was explained above, cyberspace has become a source of, as well as a vehicle for, various threats. Indeed, states have recognised the seriousness of the threats arising in and from cyberspace and have been developing strategies to prevent and counter them. Even if definitions of cyber-­security may differ from state to state, a cursory review of already published ­cyber-security strategies reveals that cyber-terrorism, cyberespionage, organised cyber-crime and hostile cyber-attacks are viewed as the most serious cyber-threats facing states.4

communicate information. It includes the internet, but also the other i­nformation systems that support our businesses, infrastructure and services.’ 3  Eg, in 2014 NATO’s heads of state agreed ‘[o]ur policy also recognises that international law, including international humanitarian law and the UN Charter, applies in cyberspace’; ‘Wales Summit Declaration, Issued by the Heads of State and Government Participating in the Meeting of the North Atlantic Council in Wales’ (5 September 2014), para 72, www.nato. int/cps/en/natohq/official_texts_112964.htm. See generally, ME O’Connell, ‘Cyber Security without Cyber War’ (2012) 17 Journal of Conflict and Security Law 187, 189. 4  The National Security Strategy: A Strong Britain in an Age of Uncertainty (Norwich, The Stationary Office, 2010) 0.18 and 1.2–1.9 www.gov.uk/government/uploads/system/ ­ uploads/attachment_data/file/61936/national-security-strategy.pdf; 2011 UK Cyber ­Security Strategy (n 2) paras 2.4–2.8; The White House, International Strategy for Cyberspace. Prosperity, Security, and Openness in a Networked World (Washington, DC, The White House, 2011) www.whitehouse.gov/sites/default/files/rss_viewer/international_strategy_ for_cyberspace.pdf; The White House, National Security Strategy (Washington, DC, The White House, 2010) 27 www.whitehouse.gov/sites/default/files/rss_viewer/national_ security_strategy.pdf; Dutch Ministry of Security and Justice, ‘The National Cyber Security Strategy (NCSS). Strength through Cooperation’ (2011) www.ncsc.nl/binaries/en/ organisation/about-the-ncsc/background/1/National%2BCyber%2BSecurity%2BStrategy. pdf; Dutch General Intelligence and Security Services (AIVD), Annual Report 2011, www. aivd.nl/english/­ publications-press/@2911/annual-report-2011-0/ and Annual Report 2010, 27; ‘Finland’s Cyber S ­ ecurity Strategy, Background Dossier’ (2013) 4 yhteiskunnantur vallisuus.fi/en/­m aterials/doc_download/45-finlandas-cyber-security-strategybackground-dossier; European Commission, ‘Joint Communication to the European ­Parliament, the Council, the European E ­ conomic and Social Committee and the Committee of the Regions, Cybersecurity Strategy of the ­European Union: An Open, Safe and Secure

Cyber-Threats and International Law 367 As far as terrorism is concerned, cyberspace can be used as an a­ dditional domain to carry out terrorist acts.5 Cyber-terrorism may be confined to cyberspace by targeting military, governmental or other ­public infrastructure computers and networks,6 but computers and networks may also be used to carry out physical acts of terror. For example, by installing ­malicious programs in an aeroplane’s navigational and operational ­systems, damage can be caused or the aeroplane may be destroyed. Cyberspace can also be used for terrorist propaganda, as well as for terrorist teaching, recruiting, financing and training purposes.7 Cyber-espionage is the clandestine collection of protected information, or of intelligence resident on computers, using cyber means.8 Cyber-espionage poses a security threat to states because it can cause political, military and economic harm.9 In general, cyber-espionage ­compromises state assets, decreases state capabilities and makes states more vulnerable to future cyber-attacks or other cyber exploitations. It is not only peacetime espionage that presents a security threat, wartime espionage is potentially equally harmful, or perhaps even more so. The latter is defined as the act of clandestinely obtaining or endeavouring to obtain information in an area controlled by a belligerent, with the Cyberspace’ JOIN(2013) 1 final (Brussels, 7 February 2013) 3 eeas.europa.eu/policies/ eu-cyber-security/cybsec_comm_en.pdf. 5  P Cornish, R Hughes and D Livingstone, ‘Cyberspace and the National Security of the United Kingdom: Threats and Responses’ A Chatham House Report (March 2009) 5–7 www. chathamhouse.org/publications/papers/view/109020; US Senate Committee on Homeland Security and Governmental Affairs, Violent Islamist Extremism, the Internet, and the Homegrown Terrorist Threat (8 May 2008) 1–8 hsgac.senate.gov/public/_files/IslamistReport.pdf. See generally B Saul and K Heath, ‘Cyber Terrorism’ in N Tsagourias and R Buchan (ed), Research Handbook on International Law and Cyberspace (Edward Elgar, 2015) Chapter 7. 6  JP Trachtman, Global Cyberterrorism, Jurisdiction, and International Organization (20 July 2004) ssrn.com/abstract=566361. 7 See generally UN Office on Drugs and Crime: ‘The Use of the Internet for Terrorist ­Purposes’ (UN, New York, 2012) www.unodc.org/documents/frontpage/Use_of_Internet_ for_Terrorist_Purposes.pdf. 8 For the UK Government’s definition and response to cyber-espionage, see https:// www.mi5.gov.uk/home/about-us/what-we-do/the-threats/espionage.html. 9 Administration Strategy on Mitigating the Theft of US Trade Secrets (February 2013) www.whitehouse.gov/sites/default/files/omb/IPEC/admin_strategy_on_­mitigating_the_ theft_of_u.s._trade_secrets.pdf. See generally ‘US Accuses China G ­ overnment and Military of Cyber-Spying’ BBC News (7 May 2013) www.bbc.co.uk/news/world-asia-china-22430224. According to the Kokoda Foundation, the cost to the US of cyber-espionage and intellectual property theft has risen to around US$1 trillion between 2010–2011. See J Blackburn and G Waters, Optimising Australia’s Response to the Cyber C ­ hallenge ­(Canberra, Kokoda Foundation, Kokoda Paper No 14, February 2011) 9, available at www.­kokodafoundation.org/Resources/ Documents/KP14ResponsetoCyber.pdf. In the UK, cyber-espionage has been estimated to cost £7.6bn per annum to business: UK ­Cabinet Office and Detica, The Cost of Cyber Crime: A Detica Report in Partnership with the Office of Cyber S ­ ecurity and Information Assurance in the Cabinet Office (Guildford, Detica Limited, 2011) www.gov.uk/government/publications/­ the-cost-of-cyber-crime-joint-­ government-and-industry-report. See generally R Buchan, ‘Cyber Espionage and International Law’ in Tsagourias and Buchan (n 5) Chapter 8.

368  Nicholas Tsagourias and Russell Buchan i­ntention of communicating it to a hostile party.10 Since information is power, the ­damage cyber-espionage can inflict on the adversary is self-evident. Organised cyber-crime is another threat facing states. It can include ­traditional crimes that have migrated to cyberspace, for example moneylaundering, drug-trafficking, extortion, credit card and ATM fraud, identity theft, software piracy, counterfeit documentation, or sexual exploitation, but it can also include crimes specific to cyberspace; that is, acts that ­compromise the integrity of computer networks, such as illegal access to information on a computer or networks, the creation, spreading and usage of harmful software and malware and violation of the ­operating instructions of a computer, computer systems and networks. Organised cyber-crime is foremost a threat to individuals, financial institutions and industry,11 but, because of its magnitude and pervasiveness, it poses a threat to states, not only because it can be detrimental to a state’s economy,12 but also because it can question the function of the state if the latter persistently fails to control it.13 Cyber-attacks are another serious threat facing states. Cyber-attacks are cyber operations that intend to ‘degrade, disrupt, deny or destroy information resident in computers, or to compromise those computers themselves’ with intent to cause significant human loss and/or ­material damage.14 Cyber-attacks, in this sense, are warlike attacks on states. Such an attack would be, for example, a cyber-attack on a nuclear reactor’s ­computer system that causes a meltdown with significant material or human destruction. Cyber-attacks may also be an integral part of kinetic attacks on states, thereby maximising their effects.

10 Arts 1 and 29 Hague Regulations concerning the Laws and Customs of War on Land (1907); Art 46(2) Additional Protocol I (1977) to the Geneva Conventions (1949); ­J-M ­Henckaerts and L Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (­Cambridge, Cambridge University Press, 2006) Rule 107. 11  To give an example, an Essex-based gang, linked to Eastern Europe, was prosecuted for online fraud, making £2 million a month by stealing log-in details from 600 UK bank accounts and tricking users into providing additional information; UK Cabinet Office and Detica (n 9) 5. 12 According to the Kokoda Foundation, cyber-crime cost the US economy more than US$8 billion in 2007 and 2008 combined. See Blackburn and Waters (n 9) 9. In the UK, the cost of cyber-crime to the UK has been estimated to be around £27bn per annum, of which £3.1 is the cost to citizens, £2.2 the cost to government and £21bn to business. UK Cabinet Office and Detica (n 9) 18–24. 13  Cornish, Hughes and Livingstone (n 5) 7–10. On the application of international law to cyber-crime see P Kastner and F Mégret,’International legal Dimensions of Cybercrime’ in Tsagourias and Buchan (n 5) Chapter 9. 14  Joint Chiefs of Staff, Joint Pub 313, ‘Joint Doctrine for Information Operations GL-5’ (9 October 1998).

Cyber-Threats and International Law 369 III.  THE INTERNATIONAL LAW FRAMEWORK APPLICABLE TO CYBER-THREATS

Having outlined the most important threats arising in and from cyberspace, in this section we will present the international law regimes that could apply to such threats. Because of the breadth and complexity of the subject-matter, we will only be able to provide an outline of the applicable law, while in the next section we will examine in more detail the application of the jus ad bellum regime to cyber-attacks. A.  The United Nations Charter The UN Charter, regardless of any constitutional properties that may be attributed to it,15 is widely viewed as the most fundamental legal ­instrument in the international society and for this reason it also applies to cyber-threats. The UN Charter lays down a number of principles and rules that guide inter-state relations. Among its principles, one should mention the principle that states should settle their disputes by peaceful means, as well as the principle of refraining from the threat or use of force except in individual or collective self-defence.16 The UN Charter also establishes a collective security system in order to maintain or restore international peace through collective action.17 According to the UN collective security system, if the Security Council (SC) determines that there exists a threat to the peace, a breach of the peace or an act of aggression, it can adopt ­military as well as non-military measures in order to restore or maintain international peace and security. From the above, it becomes apparent that the UN Charter can address many facets of cyber-threats, for example cyber-threats that amount to a use of force or to an armed attack, as well as those that constitute a threat to, or a breach of, international peace and security. B.  The Law of State Responsibility The law of state responsibility constitutes another legal regime that applies to cyber-threats to the extent that cyber-threats arising from states may

15 B Fassbender, ‘The United Nations Charter as the Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529. 16  Articles 2 and 51 UN Charter. 17  Chapter VII UN Charter.

370  Nicholas Tsagourias and Russell Buchan c­ onstitute violations of that state’s conventional or c­ ustomary ­international law obligations. The regime of state responsibility lays down the conditions according to which a state can be held directly or indirectly responsible for the activities of its own organs, or for the activities of i­ ndividuals or entities that are not its organs.18 It also provides for available remedies and lays down the circumstances that preclude wrongfulness.19 C.  The International Law on the Use of Force The use of force regime applies to cyber-threats that constitute uses of force. It comprises both UN Charter law and customary law. More specifically, it contains rules prohibiting the threat or use of force, rules on the use of force by way of self-defence, and rules on the collective use of force under the UN collective security system. D.  Customary International Law Customary international law consists of rules that have been developed through state practice and are endowed with opinio juris.20 ­Customary international law is an independent source of international law that ­supplants or complements treaty law. Customary rules may be similar to, or may differ from, treaty rules.21 Customary international law applies to cyber-threats in conjunction with or independently from treaty law. To give an example, since not all the rules on the use of force are contained in the UN Charter, they are supplemented by customary law. One could mention in this regard the customary law on non-intervention, or the ­customary law on anticipatory self-defence—that is, the use of force by way of self-defence against an imminent armed attack.22 E.  International Humanitarian Law International humanitarian law is the law that applies during an international or a non-international armed conflict. It regulates the means and 18 

Articles 2–15 International Law Commission’s Articles on State Responsibility (2001). ibid, Articles 20–39. 20  Article 38 Statute of the International Court of Justice 1945. See also North Sea C ­ ontinental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) [1967] ICJ Rep 3, paras 70–81; Case Concerning Military and Paramilitary Activities in and against Nicaragua [1986] ICJ Rep 14, paras 183–209 (hereinafter Nicaragua Case). 21  Nicaragua Case paras 175–78. 22  Caroline Case, 29 British and Foreign State Papers (1841) 196–98; A More Secure World: Our Shared Responsibility, UN Doc A/59/565 (2004) paras 188, 189–92; In Larger Freedom, UN Doc A/59/2005 (2005) para 124. 19 

Cyber-Threats and International Law 371 methods of warfare and contains provisions concerning the protection afforded to persons caught in the armed conflict. The bulk of international humanitarian law is contained in The Hague Regulations of 1899 and 1907, the four Geneva Conventions of 1949 and their two Additional Protocols of 1977. The majority of the rules contained in the aforementioned conventions are also customary rules.23 In addition to specific rules, humanitarian law includes a number of principles, such as the principle of distinction, the principle of humanity, the principle of military necessity and the principle of proportionality. To the extent that a cyber-attack can, by itself or as part of a kinetic attack, give rise to an armed conflict, international humanitarian law will apply.24 F.  International Criminal Law The term international criminal law—narrowly defined—refers to four core crimes, namely, the crime of aggression, genocide, crimes against humanity and war crimes. International criminal law provides a definition of these crimes, sets out the modes of criminal liability, the available defences, the evidentiary rules, and also regulates issues of jurisdiction and admissibility. Thus defined, international criminal law will apply when one of the aforementioned crimes has been committed using cyber means. That said, there are a number of other criminal law regimes that exist in international law. With regard to cyber-crime, one should mention here the Council of Europe’s Convention on Cybercrime (2001/2004). The ­purpose of the Convention is to establish a common criminal policy among state parties by adopting appropriate legislation and by f­ostering international cooperation. More specifically, states should proscribe ­certain offences25 and should cooperate in the investigation and prosecution of such offences.26 In order to do this, the Convention contains p ­ rovisions on ­substantive law, including definitions of cyber activities that need to be criminalised. As far as the proscribed offences are concerned, the Convention requires states to criminalise illegal access, illegal interception, data interference and system interference.27 The latter refers to ‘the serious hindering without right of the functioning of a computer ­system

23 

Henckaerts and Doswald-Beck (n 10). Legality of Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, paras 77–78. See generally M Schmitt, ‘Classification of Cyber Conflict’ (2012) 17 Journal of Conflict and Security Law 245. 25  Articles 2–13, Council of Europe’s Convention on Cybercrime (2001/2004) conventions. coe.int/Treaty/EN/Treaties/Html/185.htm. 26  ibid, Arts 14–35. 27  ibid, Art 2–5. 24 

372  Nicholas Tsagourias and Russell Buchan by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data’. What constitutes ‘serious hindering’ is, ­however, d ­ etermined by the parties.28 G.  International Law Applicable to Terrorism The international legal regime applicable to terrorism is quite fragmented. There is no single and all-inclusive convention on terrorism but, instead, there exist a number of international or regional conventions dealing with specific terrorist activities.29 These conventions do not deal with cyber-­ terrorism as such, but cyber-terrorism can be made to fall within their ambit by adopting a dynamic interpretation of their provisions. For example, the definition and description of prohibited acts in the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971) and the 1988 Supplementary Protocol to the Montreal Convention can include acts of cyber-terrorism.30 The same can be said with regard to the 1997 Convention for the Suppression of ­Terrorist ­Bombings. According to Article 2(1) of the Convention, the offence of t­ errorist bombing exists if a person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device with the intent of causing death, destruction or bodily harm. To the extent that an explosive or lethal device can also cause death or damage through the release of radio-toxic or similar pernicious substances, a terrorist attack on computer systems that control such substances can fall within the ­definition of the Convention. That notwithstanding, the fragmentation of the legal regime on ­terrorism impinges on its effectiveness. In view of this, the SC adopted Resolution 1373 in 2001, concerning the prevention and the suppression of the ­financing of terrorist acts and the criminalisation of terrorismrelated activities. This is a legislative resolution, meaning a resolution that includes general and abstract provisions, and one that is binding on all states, which are obligated to implement its provisions by introducing ­legislation to the effect of criminalising the financing of terrorism. If any proscribed acts are committed using cyber means, the SC resolution will be violated, giving rise to state responsibility or to collective action by the SC. Since ‘9/11’, the momentum has been towards a comprehensive convention on terrorism. For this reason, the General Assembly adopted, in

28  Convention on Cybercrime Explanatory Report, para 66, conventions.coe.int/Treaty/ en/Reports/Html/185.htm. 29  For a list of relevant conventions see www.un.org/terrorism/instruments.shtml. 30  Article 1, Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971.

Cyber-Threats and International Law 373 2006, the UN Global Counter Terrorism Strategy,31 which urged states to become parties to existing conventions dealing with terrorism and, as far as cyber-terrorism is concerned, urged states to ‘coordinate efforts at the international and regional levels to counter terrorism in all its forms and manifestations on the Internet’ and ‘use the Internet as a tool for countering the spread of terrorism, while recognizing that States may require ­assistance in this regard’. One aspect of the Global Counter ­Terrorism Strategy is the negotiation of a Draft Comprehensive Convention on International Terrorism.32 The Convention has not yet been formally ­concluded, but it lays down a number of offences relating to terrorism, which parties should establish as criminal offences under their domestic law. The draft Convention also requires from states on whose territory a person has committed, or is alleged to have committed, a terrorist act, to investigate, prosecute or extradite the person. In addition to the criminalisation of t­errorist acts, the draft Convention obligates parties to refrain from organising, instigating, facilitating, financing, assisting or participating in the commission of ­terrorist offences in the territories of other states. In addition to the specific legal obligations arising from the individual conventions, or from SC resolutions, states may be held responsible for committing, sponsoring or tolerating acts of cyber-terrorism according to the law of state responsibility. Moreover, cyber-terrorist acts committed or sponsored by states may also trigger the use of force regime if the loss or destruction they cause is grave, whereas terrorism committed during an armed conflict falls foul of international humanitarian law.33 Existing ­ international cyber-crime legislation may also be applied to cyber-­terrorism, but it is doubted whether the European Convention on Cybercrime can apply in the case of cyber-terrorism because the crimes included under the Convention require a specific intent, whereas in cyberterrorism, the intent is to intimidate or coerce people in general. H.  Human Rights There are a number of international as well as regional treaties on human rights, the most prominent of which are the International Covenant on Civil and Political Rights (ICCPR); the European Convention on Human Rights (ECHR), the Inter-American Convention on Human Rights and the African Charter on Human and Peoples’ Rights. They all contain a list of human rights, the most relevant in the cyber context being the right to

31 

UNGA Res 60/288 (8 September 2006) UN Doc A/RES/60/288. UN Doc A/59/894 (2005). 33  Art 51(2) Additional Protocol I (1977) and Art 4(2)(d) Additional Protocol II (1977). 32 

374  Nicholas Tsagourias and Russell Buchan freedom of expression and the right to privacy.34 Certain human rights also enjoy customary law status. It should be noted that human rights are not all absolute and derogations in cases of emergency are permitted, ­provided that they are proportional. This applies to most human rights, such as the freedom of expression, but not to non-derogable rights, such as the right to life and the right to freedom from torture, ­inhuman and degrading treatment. Human rights apply not only within the ­territorial jurisdiction of a state but, under certain circumstances, also apply e­ xtraterritorially where a state exercises personal or territorial ­control.35 In addition, human rights apply in situations of armed conflict, ­complementing humanitarian law.36 I.  International Law on Espionage International law does not proscribe or prescribe espionage.37 In peacetime, espionage is dealt with by domestic law, mainly by criminal law. International law is indirectly relevant in this respect through the application of international human rights law, or through the application of diplomatic law if spying involves diplomats. It may be contended that cyber-espionage involves an unauthorised penetration of a state’s territory and, thus, violates the rule of respect of the territorial sovereignty of a state, as has been articulated in the UN Charter or in customary law.38 Yet, if sovereignty has an inherently ­territorial focus, it may be of little relevance to clandestine activities in cyberspace.39 In certain situations, cyber-spying, by mapping out the terrain for ­example, may be considered as a preliminary act to a subsequent use of force, giving rise to questions as to whether it is a threat of force, or whether it can justify the pre-emptive use of counterforce in self-defence.

34 

Art 17 ICCPR. Rights Committee, General Comment 31, UN Doc A/59/40 (2004) para 10; M Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford, Oxford University Press, 2011). 36  Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 para 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, paras 106–13 [hereinafter Wall Advisory Opinion]. 37  G Demarest, ‘Espionage in International Law’ (1995–96) 24 Denver Journal of I­ nternational Law and Policy 321. See also A Radsan, ‘The Unresolved Equation of Espionage and ­International Law’ (2007) 28 Michigan Journal of International Law 595. 38 Q Wright, ‘Espionage and the Doctrine of Non-Intervention in Internal Affairs’ in RJ Stanger (ed), Essays on Espionage and International Law (Columbus, Ohio State University Press, 1962) 1. 39  J Stone, ‘Legal Problems of Espionage in Conditions of Modern Conflict’ in Stanger (n 38) 45. 35 Human

Cyber-Threats and International Law 375 In other situations, cyber-espionage may be considered in itself as being part of self-defence action.40 During an international armed conflict espionage, and for that reason cyber-espionage, is not prohibited, but a member of the armed forces involved in cyber-espionage will not be awarded prisoner of war (POW) status and may be treated as a spy, if captured before rejoining the forces to which they belong.41 A spy is punished according to the laws of the detaining state, following a trial. However, an individual involved in cyber-espionage may be considered as ‘directly participating in hostilities’ and, thus, be directly targeted according to international humanitarian law.42 A member of the armed forces wearing uniform who is gathering information is not considered to be engaging in espionage.43 If the ­person operates outside the belligerent territory, they are treated according to the laws of the apprehending state. In non-international armed conflicts, espionage is dealt with in accordance with domestic law. Although this is very rare, if a state admits responsibility for the act of spying, it may incur international legal responsibility if it violates at the same time any of its international law obligations. IV.  CYBER-ATTACKS AND THE JUS AD BELLUM

The previous section provided a panorama of the international legal rules that may apply to cyber-threats. In this section we focus our attention upon the applicability of the international legal framework relating to the use of force—the jus ad bellum—to cyber-attacks. The reason for this focus is clear: with the increasing frequency of cyber-attacks on state infrastructure and in their attempt to combat, mitigate and deter them, states have cast the security threat that such attacks represent in military terms. ­Estonia, for example, argued that the cyber-attacks it was subject to in 2007 c­ onstituted an armed attack, within the meaning of Article 5 of the North Atlantic Treaty, and that NATO was therefore required to engage its collective ­ self-defence mechanism in support.44 Although NATO ­ultimately refused to engage Article 5, it did establish the ­Cooperative Cyber Defence Centre of Excellence (CCDCOE) in Tallinn, Estonia, in

40  RD Scott, Territorially Intrusive Intelligence Collection and International Law (1999) 46 Air Force Law Review 217. 41  Art 46 Additional Protocol I (1977). 42  M Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare ­(Cambridge, Cambridge University Press, 2013) Rule 66, para 4. 43  Art 46 Additional Protocol I (1977). 44 H Laasme, ‘Estonia: Cyber Window into the Future of NATO’ (2011) 63 Joint Force ­Quarterly 58.

376  Nicholas Tsagourias and Russell Buchan order to enhance cyber security for NATO Member States. In creating this organisation, NATO made it quite clear that cyber security would be best achieved through military means, given that the frame of reference for the CCDOE was to ‘conduct research and training on cyber warfare’.45 In 2003 it published the Tallinn Manual on the International Law Applicable to Cyber Warfare.46 Similarly, in 2009 the US established a Cyber Command as a subunit of Strategic Command, one of its nine combat commands in the US U ­ nified Command System, within the Department of Defense. When it was ­created, William Lynn, Deputy Secretary of Defense at the time, explained that: Just as our military is prepared to respond to hostile acts on land, air and sea, we must be prepared to respond to hostile acts in cyberspace. Accordingly, the United States reserves the right, under the laws of armed conflict, to respond to serious cyber-attacks, with a proportional and justified military response, at the time and place of its choosing.47

The US has asserted its right to launch defensive, as well as offensive, cyber effects operations and has also always reserved the right to act in self-defence through cyber operations in response to hostile attacks.48 The UK has also demonstrated a tendency to cast the threat of cyberattacks in military terms. For example, the 2012 Strategic Defence and Security Review elevates the threat of cyber-attacks to a Tier One threat alongside (international and national) terrorism, international military crises and natural disasters. As the following extract reveals, the Review clearly shows that the British Government conceives of cyber-attacks as a military threat to national security: We will establish a transformative national programme to protect ourselves in cyberspace. Over the last decade the threat to national security and ­prosperity has increased exponentially. Over the decades ahead this trend is likely to ­continue to increase in scale and sophistication, with enormous implications for the nature of modern conflict.49

45 See www.nato.int/docu/update/2008/05-may/e0514a.html. NATO’s most recent ­iteration of its cyber security policy can be found in the 2014 Wales Summit Declaration (n 3). 46  Tallinn Manual (n 42). 47 W Lynn, Former Deputy Secretary of Defense, ‘Announcement of the Department of Defense Cyberspace Strategy at the National Defense University’ (14 July 2011) www. defense.gov/speeches/speech.aspx?speechid=1593. 48  The White House, International Strategy for Cyberspace (n 4) 14; ‘Obama tells ­Intelligence Chiefs to Draw up Cyber Target List—Full Document List (Presidential Policy Directive/ PPD-20) The Guardian (8 June 2013) 6 www.guardian.co.uk/world/interactive/2013/ jun/07/obama-cyber-directive-full-text. 49  ‘Securing Britain in an Age of Uncertainty: The Strategic Defence and Security Review’ (October 2010) 4, www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@ en/documents/digitalasset/dg_191634.pdf.

Cyber-Threats and International Law 377 In light of these determinations, the question that needs to be addressed is whether the jus ad bellum does actually apply to cyber-attacks and, if so, under what circumstances. As we will see, in legal terms the answer is not straightforward, not least because the jus ad bellum was created largely in the aftermath of the Second World War, long before the internet and the cyberspace domain became a reality.50 Questions that arise include whether cyber-attacks against the critical national infrastructure of states constitute an unlawful use of force or even an armed attack under the UN Charter, thus permitting the victim state to permissibly use force to defend itself. If so, what restrictions do the principles of proportionality and necessity—well-established limitations under customary international law—place upon states that are seeking a military response to a cyberattack? In ­addition, what if a cyber-attack is committed by a non-state actor—a very realistic possibility given the ease at which a cyber-attack can be launched? Can self-defence be relied upon against a non-state actor? It is these questions that the remainder of this chapter will address. A.  Cyber-Attacks as Unlawful Uses of Force The jus ad bellum prohibits states from the threat or use of force in their international relations. This prohibition is contained in Article 2(4) of the UN Charter and in customary law. Given that the term ‘force’ is not defined in Article 2(4), in the years following the signing of the UN Charter there was much debate as to the exact meaning of this term. In particular, debate centred on whether Article 2(4) prohibits the use of armed force only, or whether its scope is wider, so as to include the imposition of economic and political coercion. Since the end of the Cold War these debates have largely subsided, with a consensus emerging around an interpretation of Article 2(4) that prohibits armed force only.51 Brownlie defines armed force as the use of any weapon producing physical damage, by which he means ‘destruction to life and property’.52 This effects-based approach to Article 2(4) has since attracted significant support within international legal literature, particularly in the context of

50  See generally R Buchan and N Tsagourias, ‘Cyber War and International Law’ OUP Blog (8 August 2012) blog.oup.com/2012/08/cyber-war-and-international-law/. 51  ‘The term does not cover any possible kind of force, but is, according to the correct and prevailing view, limited to armed force’; A Randelzhofer, ‘Article 2(4)’ in B Simma (ed), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2002) 117. For an excellent discussion of the application of the international legal framework relating to the use of force to cyber war see M Roscini, Cyber Operations and the Use of Force in International Law (Oxford, Oxford University Press, 2014). 52  I Brownlie, International Law and the Use of Force by States (Oxford, Clarendon Press, 1963) 362.

378  Nicholas Tsagourias and Russell Buchan cyber war. For example, Dinstein contends that ‘it does not matter what specific means—kinetic or electronic—are being used to bring it about, but the end result must be that violence occurs or is threatened’.53 In the same vein, Harold Koh, Legal Adviser of the US State Department, explains that: In analyzing whether a cyber operation would constitute a use of force, most commentators focus on whether the direct physical injury and property ­damage resulting from the cyber event looks like that which would be considered a use of force if produced by kinetic weapons. Cyber activities that proximately result in death, injury, or significant destruction would likely be viewed as a use of force.54

It transpires from the above that cyber-attacks that produce physical ­damage or human loss fall within the scope of Article 2(4). However, there may be cyber-attacks that do not produce any tangible damage, yet still cause significant disruption. The classic example in this context is a ­cyber-attack that causes the New York Stock Exchange to shut down, resulting in huge economic losses. Another example would be a cyberattack that causes key websites to go offline. In fact, this latter example was the situation that occurred in Estonia in 2007. In April 2007 the Estonian Government announced that it would ­relocate a statue of a bronze Russian soldier, long considered by ­Estonians to be a symbol of foreign domination by the Soviet Union, to the outskirts of the capital, Tallinn. This caused anger amongst the Russian community in Estonia and rioting started. In addition to social unrest, there were also cyber-attacks against government agencies and important ­private companies, such as banks and the media. This was achieved principally through Distributed Denial of Service (DDOS) attacks, which is where a website is flooded with so many requests for information that it runs so slowly as be to wholly ineffective, or crashes completely and goes offline. At first, these DDOS attacks were relatively low-scale and easily mitigated by the ­relevant authorities. However, the second wave of DDOS attacks employed large botnets,55 resulting in approximately 85,000 ­computers being hijacked by a computer virus and used to send requests for ­information from the websites of public authorities and important ­private companies. Under this barrage, key Estonian websites were taken offline for a period lasting nearly three weeks.

53  Y Dinstein, War, Aggression and Self-Defence (Cambridge, Cambridge University Press, 2010) 88 (fns omitted). 54  H Koh, ‘International Law in Cyber Space’ (18 September 2012) (emphasis in original) www.state.gov/s/l/releases/remarks/197924.htm. 55 For a definition see http://www.microsoft.com/security/resources/botnet-whatis. aspx.

Cyber-Threats and International Law 379 As to whether these DDOS attacks can be regarded as an unlawful use of force for the purposes of the Article 2(4) prohibition, they did not ­violate Article 2(4) according to the effects-based interpretation of this Article,56 yet they were seriously disruptive. As a result, academic literature has lambasted the narrow scope of the Article 2(4) prohibition.57 There have been sustained calls for an ‘interpretive reorientation’ of the concept of force contained within Article 2(4), expanding its scope so as to include cyber-attacks, which, although not producing physical damage, nevertheless have deleterious effects.58 In the cyber context, Schmitt in particular has argued that Article 2(4) should be reinterpreted so as to include non-physical damage that is comparable, in its effects, to physical damage.59 The Tallinn Manual tries to accommodate both approaches. As it says: Clearly, [cyber-attacks do violate Article 2(4)] if they cause the death of, or injury to, persons or damage to, or destruction of, objects … Since other cases are less clear, the International Group of Experts took notice of an approach that seeks to assess the likelihood that States will characterise a cyber operation as a use of force.60

What the Groups of Experts is saying here is that the conventional understanding of Article 2(4) is that it only prohibits uses of force ­ that ­ manifest physical damage. However, the Group recognises that cyber-attacks that produce non-physical damage can still be extremely ­damaging to states and, to this end, states may in the future seek to reinterpret ­Article 2(4) and expand its scope. If this is the case, then the Group of Experts argue that the factors that should guide states in determining whether such a cyber-attack is caught by Article 2(4) should include the severity of the attack, the level of state involvement and the immediacy, directness, invasiveness and character of the cyber-attack.61

56 Contra, MN Schmitt, ‘Cyber Operations and the Jus Ad Bellum Revised’ (2011) 56 ­Villanova Law Review 569. 57  As Schmitt notes, ‘In light of the ever-increasing reliance of society on computers and computer networks, many readers, like the author, will find the “physical consequences” standard too narrow. But it does represent the lex lata, that is, the law as it presently stands’; M Schmitt, ‘“Attack” as a Term of Art in International Law: The Cyber Operations Context’ (4th International Conference on Cyber Conflict, 2012) 283, 288 www.ccdcoe.org/ publications/2012proceedings/5_2_Schmitt_AttackAsATermOfArt.pdf. 58  M Waxman, ‘Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4)’ (2011) 36 Yale Journal of International Law 421, 422. Others have suggested the creation of a new international treaty that deals specifically with the threat posed to international peace and security by computer technology; O Hathaway et al, ‘The Law of Cyber-Attack’ (2012) 100 California Law Review 817. 59 M Schmitt, ‘Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework’ (1998–99) 37 Columbia Journal of Transnational Law 885. 60  Tallinn Manual (n 42) Rule 11, para 6. 61  ibid, Rule 11, para 7.

380  Nicholas Tsagourias and Russell Buchan Even if the prohibition represented by Article 2(4) were not to extend beyond physical damage, this does not mean that cyber-attacks that cause considerable disruption to computer networks (but without p ­ roducing physical damage) are lawful. As we explained above, other international legal frameworks exist to regulate activities in cyberspace and can thus protect states against the deleterious effects that cyber-attacks can ­produce. Most notably, the principle of non-intervention prohibits states from exerting coercion against another state in relation to matters that it is freely entitled to determine itself.62 In relation to the cyber-attacks against Estonia, for example, if the DDOS attacks could be attributed to a state, they would amount to unlawful intervention.63 It is useful to contrast the cyber-attack against Estonia with the cyberattack against Iran in 2010. In July 2010 Iran discovered a computer virus operating covertly within many of its computer systems, which has since become known as the ‘Stuxnet’ virus. The epicentre of the attack was Natanz, Iran’s primary nuclear facility. For many years, the international community has condemned Iran’s plans to develop nuclear power, b ­ elieving that Iran would use nuclear material to create weapons of mass destruction.64 The objective of the Stuxnet virus was to frustrate Iran’s nuclear aspirations. In order for nuclear power to be generated, ­uranium needs to be enriched to sufficient levels of purity by being spun in ­centrifuges, which are subject to very specific temperatures, pressures and speed. The Stuxnet virus adjusted the speed at which the centrifuges rotated, causing them to substantially increase in speed and then to ­drastically decrease. In order for this to be achieved, the virus indicated to the systems operator that everything was functioning normally.65 The exact impact of the Stuxnet virus is difficult to quantify. ­However, according to reports of the International Atomic Energy Association (IAEA), which has cameras inside the Natanz nuclear plant, up to 1,000 centrifuges were replaced at the time that Stuxnet would have been in operation.66 If this is the case, then it would seem that the virus (in ­contrast to the DDOS attacks against Estonia) produced the requisite physical ­damage in order for a violation of Article 2(4) to be established.67

62 

UNGA Friendly Relations Declaration, UN Doc A/Res/2625 (1970) (XXV). the cyber-attacks against Estonia constituted a violation of the principle of non-intervention, see R Buchan, ‘Cyber Attacks: Unlawful Uses of Force or Prohibited ­Interventions’ (2012) 17 Journal of Conflict and Security Law 211. 64  UNSC Res 1696 (31 July 2006) UN Doc S/RES/1696. 65  For an overview of the Stuxnet virus, see P Shakarian, ‘Stuxnet: Cyberwar Revolution in Military Affairs’ (2011) 7 Small Wars Journal 1. 66  See D Albright, P Brannan and C Walfrond, ‘Stuxnet Malware and Natanz: Update of ISIS December 22, 2010 Report’ (Institute for Science and International Security, 15 February 2011). 67  However, they were not attributed definitively to a particular state. 63 That

Cyber-Threats and International Law 381 B.  Cyber-Attacks and Self-Defence According to Article 51 of the UN Charter and customary law, if a state suffers an armed attack, it can use force by way of self-defence. As with Article 2(4), Article 51 does not provide any guidance as to the meaning of the term ‘armed attack’. In elaborating upon its meaning, the International Court of Justice (ICJ) has consistently maintained that only grave uses of force will qualify as an armed attack.68 Thus, it follows that only ­cyber-attacks that produce serious physical damage or human loss will trigger the right to self-defence.69 For example, and upon the available evidence, the physical damage produced by Stuxnet was relatively minor and localised and, therefore, it is difficult to regard it as an armed attack for the purposes of Article 51. This is the approach O’Connell adopts, concluding that ‘The Stuxnet [virus] while unlawful was not the equivalent of an Article 51 armed attack.’70 The differentiated treatment of an armed attack and a mere use of force means that, whereas a use of force that ­violates Article 2(4) will engage the international responsibility of the aggressor state, the victim state cannot respond by using force. For many this situation is not satisfactory and there has been much debate as to whether a series of unlawful uses of force that, although ­individually are not sufficiently serious to constitute an armed attack, taken collectively would amount to an armed attack. This is known as the ‘accumulation of events theory’.71 At least historically, because of the desire to restrict the circumstances in which a state could ­unilaterally use force, the weight of argument was against such an approach to

68  Nicaragua Case (n 20) para 191–95. See also Islamic Republic of Iran v United States of ­America [2003] ICJ Rep para 51; Wall Advisory Opinion (n 36); Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 53; Tallinn Manual (n 42) Rule 13. 69  The US has maintained for many years that there is no distinction between an unlawful use of force and an armed attack. In this sense, an unlawful use of force will engage the right to self-defence under Article 51. As US Legal Adviser Harold Koh explains in his recent ­discussion of the application of the jus ad bellum to cyberspace, ‘the United States has for a long time taken the position that the inherent right of self-defence potentially applies against any illegal use of force. In our view, there is no threshold for a use of deadly force to qualify as an “armed attack” that may warrant a forcible response’ (emphasis in original); Koh (n 54). See also the Chatham House Principles of International Law on the Use of Force in SelfDefence: ‘An armed attack means any use of armed force, and does not need to cross some threshold of intensity’ Chatham House Principles of International Law on the Use of Force in Self-Defence www.chathamhouse.org.uk/publications/paper/view/-/id/308. However, Dinstein argues that such an approach ‘cannot be reconciled with the text of the Charter. Pursuant to Article 51, only an armed attack—and nothing short of an armed attack—can precipitate a forcible reaction by way of self-defence’ Dinstein (n 53) 194. 70  O’Connell (n 3) 202. 71 Dinstein (n 53) paras 547–49; B Simma, D-E Khan, G Nolte and A Paulus (ed), The ­Charter of the United Nations (Oxford, Oxford University Press, 2012) 1409; C Greenwood, ‘Self-Defence’ MPEPIL online (2012) para 12; Y Ronen, ‘Israel, Hizbollah and the Second ­Lebanon War’ (2006) 9 Yearbook on International Humanitarian Law 362, 372.

382  Nicholas Tsagourias and Russell Buchan ­Article  51.72 Recently, however, ‘states seem to have shown a new willingness to accept the “accumulation of events” doctrine which previously had received little support’.73 The ICJ has also employed language that indicates that it is prepared to accept this accumulation of events theory. In the Oil Platforms case the ICJ noted that ‘Even taken cumulatively … these incidents do not seem to the Court to constitute an armed attack on the United States’.74 Similarly, in the Congo judgment, the ICJ determined that Uganda could not rely upon self-defence because, ‘even if this series of deplorable attacks could be regarded as cumulative in c­haracter’,75 they could not be attributed to the Congo. If this approach is correct, it has potentially important implications for the application of Article 51 to cyber-attacks. This is because ‘“[l]ow intensity” cyber incidents are ­perhaps more likely to happen because they require less technical sophistication or means’,76 but may nevertheless be part and parcel of a broader campaign to cause maximum damage and disruption. If unlawful uses of force can be aggregated in this fashion then individual cyber-attacks, that in themselves manifest insignificant physical damage but which, when taken together, produce serious physical damage, can constitute an armed attack and thus give rise to self-defence action.77 Moreover, as with Article 2(4), commentators are increasingly adopting the position that Article 51 should extend to cyber-attacks that, although not manifesting physical violence, do nevertheless have a profound ­debilitating effect upon state apparatus.78 Article 51 also permits a state to use force by way of self-defence in response to an armed attack that, although it has not yet occurred, is ­imminent. This is clearly provided for in Article 51 as the provision reads where ‘an armed attack occurs’, not ‘has occurred’. The question becomes how mature the threat must be, in order for Article 51 to be engaged. ­Following the US insistence that Article 51 justified its use of pre-emptive force against Iraq in 2003, it is unsurprising that this question has received

72  D Kretzmer, ‘The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum’ (2012) 24 European Journal of International Law 235, 244. 73  C Tams, ‘The Use of Force against Terrorists’ (2009) 20 European Journal of International Law 359, 388. 74  Oil Platforms (Iran v US) [2003] ICJ Rep para 64. 75  ibid, para 147. 76 N Tsagourias, ‘Cyber Attacks, Self-Defence and the Problem of Attribution’ (2012) 17 Journal of Conflict and Security Law 229, 232. 77  Tallinn Manual (n 42) Rule 13 para 8. 78  WG Sharp, Cyberspace and the Use of Force (Falls Church, Aegis Research Corporation, 1999) 129; ET Jensen, ‘Computer Attacks on Critical State Infrastructure: A Use of Force Invoking the Right of Self-Defence’ (2002) 38 Stanford. Journal of International Law 207, 221–29; Contra Y Dinstein, ‘Computer Network Attacks and Self-Defence’ (2002) 76 International Law Studies 99. See generally C Focarelli, ‘Self-Defence in Cyberspace’ in Tsagourias and Buchan (n 5) Chapter 12.

Cyber-Threats and International Law 383 considerable academic attention in recent years and also generated much division. This is not the place to rehearse these arguments in detail. Briefly, though, nowadays it is widely accepted that Article 51 should be interpreted in light of the well-known Caroline formula. The diplomats involved in this incident seemed to accept that pre-emptive force in selfdefence can be employed where the threat posed is ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation’.79 As the UN High Level Panel of Experts has explained, ‘according to long established international law, [a state] can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate’.80 For example, if a state launches a cyber-attack against another state that disables crucial weapons defence systems, and this attack is situated within a broader history of violence between these states, coupled with continual and unambiguous verbal threats of violence by the aggressor state, then this may be a situation that could give rise to an imminent threat of an armed attack and, therefore, trigger Article 51. In this respect, Presidential Policy Directive 20 expressly reserves the right to use emergency action in the exercise of the inherent right to selfdefence in order to ‘prevent imminent loss of life or significant damage with enduring national impact on the Primary Mission Essential Functions of the United States Government, U.S. critical infrastructure and key resources or the mission of U.S. military forces’.81 Whereas this approach to imminence precludes the use of force by way of self-defence against an armed attack that is merely prospective, whether the armed attack is imminent is not only a question of time but is also a factual question of when is the ‘last window of opportunity’ for a state to defend itself, in view of its capabilities or the nature of the expected attack.82 Such interpretation of imminence may push the boundaries of self-defence forward. Be that as it may, any use of force in self-defence must be directed against the author of the attack,83 but with regard to attacks committed in and through cyberspace, the technical determination as to who has committed the attack is always going to be troublesome.84 This is because of the ease with which those committing the attacks can hide or spoof

79  See the letter of former US Secretary of State Daniel Webster dated 24 April 1841 in Caroline Case, 29 (n 22) 1137–38. 80  A More Secure Would: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change (2004) UN Doc A/59/565 para 188. 81  Presidential Policy Directive/PPD-20 (n 48) 10. 82  ‘Chatham House Principles of International Law on the Use of Force in Self-Defence’ (2006) 55 International and Comparative Law Quarterly 968. 83  We use the term author deliberately here. We will discuss below whether Article 51 can be engaged in relation to just states or also non-state actors. 84  Tsagourias (n 76).

384  Nicholas Tsagourias and Russell Buchan their identities, such as by re-routing the cyber-attack through different ­servers in different countries, or hijacking legitimate computers in order to commit the attack (as in the DDOS attacks in Estonia). Such questions concerning technical attribution can only be answered through developments and improvements in technology and in particular cyber tracing. However, this notwithstanding, identification and attribution is necessary in order to lawfully engage Article 51 and this becomes even more difficult in ­relation to non-state actors, as will be seen below. Although Article 51 ‘does not contain any specific rule whereby selfdefence would warrant only measures which are proportional to the armed attack and necessary to it’,85 in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ noted that ‘The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law’ and that ‘This dual condition applies equally to Article 51 of the Charter’.86 The principle of necessity requires that ‘force should not be considered necessary until peaceful measures have been found wanting or when they clearly would be futile’,87 and that the use of force would be effective in the circumstances. Thus, if a cyber-attack is committed and non-forcible defences are available to adequately mitigate the effects of the attack, such as the imposition of a firewall or disconnecting the network, a state will be barred from using force in self-defence.88 Equally, if the use of force would be ineffective in combating an armed cyber-attack, a state would not be permitted to use force under Article 51. The principle of proportionality ‘limits the scale, scope, duration and intensity of the defensive response to that which is required to end the situation that gives rise to the right to act in self-defence’.89 For this ­reason, the key requirement of the principle of proportionality is that any use of force in self-defence must be capable of being characterised as d ­ efensive. In this sense, it must be limited to ‘halting and repelling’ the armed attack.90 As soon as the force becomes punitive, retaliatory or preventive, it will be regarded as disproportionate. This does not mean, however, that the use of force in self-defence must be of the same kind and nature as that

85 

Nicaragua Case (n 20) para 176. Legality of the Threat or Use of Nuclear Weapons (n 36) para 245. Indeed, this position has been subsequently reiterated by the ICJ in the Oil Platforms Case (n 74) (paras 43, 73–74, 76) and the DRC v Uganda judgment (n 68) (para 147). 87  O Schatcher, ‘The Right of States to Use Armed Force’ (1984) 82 Michigan Law Review 1620, 1635. 88  Tallinn Manual (n 42) Rule 13 para 3. 89  ibid, Rule 15 para 5. 90  R Ago, Special Rapporteur to the International Law Commission, Eighth Report on State Responsibility (1980) International Law Commission Yearbook ii, I, 13, para 121, UN Doc A/ CN4/318/ADD 5–7. 86 

Cyber-Threats and International Law 385 with which the armed attack was committed. Thus, a state that has been the victim of an armed attack committed through cyberspace is entitled to use kinetic weapons in response, providing the response can be regarded as defensive in nature.91 When a state seeks to respond to an armed cyber-attack through the cyber realm, in order to comply with the principle of proportionality, ­particular care will need to be taken by the victim state so as to limit the target of the cyber response to that which is necessary to halt and repel the armed attack. Given the inherent inter-connectedness of cyberspace, it is possible that a cyber-attack can have spill-over effects that cause physical damage incidental to, or perhaps even completely independent from, the source of the original armed attack. In such circumstances the use of force will be regarded as disproportionate and thus unjustifiable under Article 51. C.  Cyber-Attacks by Non-State Actors The conventional approach to the law of self-defence is that Article 51 UN Charter can only be invoked where the armed attack can be attributed to another state. This was certainly the opinion of the ICJ in its Wall Advisory Opinion when it explained that self-defence is only available against ‘an armed attack by one State against another State’.92 This extends, of course, to the situation where a non-state actor commits an armed attack against a state, but is in fact an organ, agent, or under the ‘effective control’ of a state.93 In this sense, the armed attack is attributed to the state and, for the purposes of Article 51, will be regarded as an act of that state. Although the ICJ provided little elaboration for its state-centric approach to Article 51 in its Wall Advisory Opinion, the legal reasoning is ostensibly based upon a perception that, because Article 2(4) is a prohibition applicable between members of the UN (which means states) and Article 51 is a recognised exception to that prohibition, Article 51 must therefore also be considered to be applicable exclusively between states. Of course, in a world where non-state actors are increasingly powerful and able to ­commit violence on a massive scale, such a reading of

91 Indeed, NATO has claimed that it is prepared to respond to cyber-attacks with armed force, see www.futureintelligence.co.uk/2010/06/nato-warns-of-strike-againstcyber-attackers/. 92  Wall Advisory Opinion (n 36) para 139. 93  In the Nicaragua Case judgment (n 20), the ICJ interpreted the notion of effective control to mean ‘directing or enforcing’ the act in question (para 15). See also Article 8, International Law Commission’s Articles on State Responsibility (2001). This is a very high standard for attribution of conduct, A Cassese, ‘The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgement on Genocide in Bosnia’ (2007) 18 European Journal of International Law 649.

386  Nicholas Tsagourias and Russell Buchan ­ rticle 51 would prevent a state that has been a victim of an armed attack A by a non-state actor from using force to defend itself. For this reason, it seems that the requirement that the armed attack be committed by a state is anachronistic in the contemporary era and renders state security extremely vulnerable. Unsurprisingly, the ICJ’s Wall Advisory Opinion has been subject to much criticism.94 The argument runs that Article 51 does not actually require that an armed attack emanate from a state in order for selfdefence to be invoked; Article 51 instead explains that self-defence can be engaged where an ‘armed attack occurs’. Moreover, although Article 2(4) does prohibit the threat or use of force between states, Article 51 does not appear in Chapter I (along with Article 2(4)), but instead in Chapter VII. Thus, schematically, it is not necessarily the case that Article 51 must be interpreted in light of Article 2(4) and therefore restricted to inter-state relations.95 Others have suggested that developments in state practice also confirm that Article 51 can be engaged in relation to a non-state actor where the state in which the non-state actor is physically located tolerates their activities, or is unable to prevent that group from engaging in violent activities against other states.96 The use of force by the US against Al Qaeda in Afghanistan in 2001 and Israel’s use of force against Hezbollah in Lebanon in 2006 are examples of states’ reliance upon Article 51 in relation to nonstate actors who have committed armed attacks.97 The question in this case is whether it is the host state or the non-state actor that becomes the target of the self-defence action. If a state is unwilling to curb the activities of non-state actors amounting to involvement in the attack, it should become the target of the self-defence action, whereas if the state is unable, then self-defence action should target the non-state actor directly. All in all this is an area of law in which there is much uncertainty. ­However, at least in normative terms, for the reasons outlined above ­relating to the relative ease with which non-state actors can acquire the

94 See Separate Opinions of Judge Higgins, paras 33–34 and of Judge Kooijmans, paras 35–36, and the Declaration of Judge Burgenthal, para 6, in Wall Advisory Opinion (n 36). See also Congo v Uganda (n 68) para 146. Contra Dissenting Opinions of Judge Kateka, para 34, and of Judge Kooijmans, para 28 and Dissenting Opinion of Judge Simma in Congo v Uganda (n 68) para 11. See also Greenwood (n 71) paras 16–17. 95  See generally Dinstein (n 53) at Chapter 7. 96  Tallinn Manual (n 42) Rule 13, paras 22 and 23. 97  See M Milanovic’s discussion on EJIL Talk! as to why these interventions should be seen as the exercise of self-defence against non-state actors: www.ejiltalk.org/self-defense-andnon-state-actors-indeterminacy-and-the-jus-ad-bellum/. N Tsagourias, ‘Non-State Actors and the Use of Force’ in J D’Aspremont (ed), Participants in the International Legal System: Theoretical Perspectives, (Routledge, London, 2011) 326ff; KN Trump, State Responsibility for International Terrorism (Oxford, Oxford University Press, 2011) 34–62.

Cyber-Threats and International Law 387 necessary tools to launch a cyber-attack, the attraction of an interpretation of ­Article 51 that enables states to use force in self-defence directly against non-state actors is clearly apparent. D.  Collective Security Apart from in the narrow instance of self-defence, the rationale of the UN is to centralise the use of armed force in its collective security system. ­Specifically, Chapter VII permits the Security Council to adopt mandatory decisions (including the use of armed force) where it determines that a threat to international peace and security exists. In recent years, the Security Council has accorded an extremely wide interpretation to the concept of a threat to international peace and ­security, covering not just international conflict but also civil wars and threats posed by poverty, global warming and global pandemics.98 Incontrovertibly, cyber-attacks, regardless of whether or not they produce physical ­damage (this being death or injury to people or damage to physical property), could fall within the competence delineated by Chapter VII. Although the ­Security Council has yet to declare a threat to international peace and ­security in response to a cyber-attack, and thus engage ­Chapter VII, the General Assembly has noted that ‘the dissemination and use of information technologies and means affect the interests of the entire international community’99 and that ‘the criminal misuse of information ­technologies may have a grave impact on all States’.100 As a result, the ­General ­Assembly has explained that these technologies ‘can potentially be used for purposes that are inconsistent with the objectives of ­maintaining ­international peace and security’.101 V. CONCLUSION

From the preceding discussion it has become apparent that cyber-threats do not exist in a legal vacuum, but are governed by international law. ­However, it has also become apparent that international law cannot always adequately deal with them. The regulatory deficiencies of ­international law

98  R Buchan, International Law and the Construction of the Liberal Peace (Oxford, Hart Publishing, 2013) Chapter 4. 99  UNGA Res 64/25 (2 December 2009) UN Doc A/RES/64/25. 100  UNGA Res 56/121 (19 December 2001) UN Doc A/RES/56/121. 101  UNGA Res 64/25 (n 99). For a discussion of the role of the UN collective security s ­ ystem in the cyber security context, see C Henderson, ‘The United Nations and the ­Regulation of Cyber Security’ in Tsagourias and Buchan (n 5) Chapter 22.

388  Nicholas Tsagourias and Russell Buchan are well known but, perhaps, they become more pronounced in the case of cyber-threats because of the characteristics of the cyberspace, namely, its deterritorialisation, borderlessness, anonymity and the involvement of non-state actors. In this concluding section, we will identify some problems that affect the application of the international law paradigm to cyber-threats. To begin, it is not always easy to decipher the nature of the cyber operation and more specifically to say whether it is an act of espionage, an unlawful intervention, a use of force, or an armed attack. For example, introducing a virus into a state’s network system to monitor traffic and, upon ­activation, take control of the system, may be interpreted as an act of cyber-espionage, or as a threat of force, if harmful effects may be produced upon the ­activation of the payload. Consequently, it is not clear whether it is the law enforcement or the use of force paradigm that should govern this incident. To this, problems of definition should be added. As was seen, the terms ‘force’ and ‘armed attack’ are subject to different interpretations, as far as their conventional manifestations are concerned, and such interpretative ambiguities are magnified in cyberspace. Or take the case of terrorism. Existing definitions of terrorism, although not formally adopted, do not mention cyber-terrorism and, moreover, they include an intentional ­element of causing fear or intimidation. However, it may be difficult to prove intention in cases of cyber-terrorism, due to the anonymity of the attacker or to spoofing, and it may also be difficult to distinguish between political ‘hactivism’ and terrorism. If ‘intention’ as an element in the ­definition of terrorism is discarded and instead cyber-terrorism is defined by its effects,102 then it will be difficult to distinguish between such attacks and those of a military nature. Yet, even if certain cyber-threats are defined, definitions may be either under or over-inclusive. For example, the COE Cyber-Crime Convention suppresses criminal acts by private parties, but does not include state organisations, and it is such organisations that are often involved in cyber-crime. The activities of non-state actors are another issue which affects the application of international law to cyber-threats. International law often ignores the presence of non-state actors, or it is ambivalent in its treatment. Yet non-state actors can be the source and carriers of cyber-threats that can affect not only individuals, but also states. The questions that immediately arise are to what extent international law has the tools to deal effectively with non-state actors? And should it deal with them indirectly through states or also directly? Related to this is the question of whether attribution can be conclusive in cyberspace. The technical difficulties in

102 O Schachter, International Law in Theory and Practice (Dordrecht/Boston/London, ­Martinus Nijhoff, 1991) 163

Cyber-Threats and International Law 389 identifying the author of the cyber-threat are enormous due to the speed, anonymity and possibility of spoofing in cyberspace. Therefore, although every reasonable effort should be made to identify the source of the attack, this needs to be done in light of the prevailing circumstances.103 Even if technical attribution is achieved, the question is whether the international law criteria for attributing acts of non-state actors to states are sufficient to cover the manifold ways in which states and non-state actors collude.104 Jurisdiction is another issue that can affect the application of international law to cyber-threats due to the deterritorialisation of cyberspace, the anonymity it can afford and the fact that attacks can be carried out remotely and be multi-staged. With regard to criminal jurisdiction, for example, and in particular the jurisdiction of the International ­Criminal Court, it is not clear how the territoriality and nationality principles can apply to acts that are committed through cyberspace, spanning and transgressing the laws of many jurisdictions, or to acts perpetuated by ­thousands of spoofed computers. Regarding the application of international humanitarian law to cyberattacks, because boundaries in cyberspace are blurred, classifying cyberconflicts as either international or non-international in character is difficult105 and maintaining the principles of distinction and proportionality is particularly difficult.106 If the above describes the current state of international law relating to cyber-threats, the immediate question is what should be done? In the first place, current international rules can be interpreted purposively to include cyber-threats. However, this may not be a panacea because interpretations may be contested and they may not be binding on all states or actors. One may then say that because cyberspace constitutes a new domain with specific features, there is need for a more specific regulatory regime.107 For this reason, the UN has established working groups examining different areas of cyber security. They have recommended: (i)

103 

dialogue among states to discuss norms pertaining to state use of information and communication technologies (ICTs), to reduce collective risk and to protect critical national and international infrastructure;

Presidential Policy Directive/PPD-20 (n 48) 7. Tsagourias (n 76). 105  M Schmitt, ‘Classification of Cyber Conflict’ (2012) 17 Journal of Conflict and Security Law 245. 106  Although for a more moderate view, see Y Dinstein, ‘The Principle of Distinction and Cyber War in International Armed Conflicts’ (2012) 17 Journal of Conflict and Security Law 261. 107  D Brown, ‘A Proposal for an International Convention to Regulate the Use of Information Systems in Armed Conflict’ (2006) 47 Harvard International Law Journal 179. 104 

390  Nicholas Tsagourias and Russell Buchan (ii) confidence-building, stability and risk-reduction measures to address the implications of state use of ICTs, including exchanges of national views on the use of ICTs in conflict; (iii) information exchanges on national legislation, national information and communications technologies, security strategies and ­technologies, policies and best practices; (iv) identification of measures to support capacity-building in less ­developed countries; and (v) finding possibilities to elaborate on common terms and definitions.108 In our view, if the ultimate aim is to have a safe and operational worldwide information and communication system, then, given the interconnectivity of networks, the dependency of private and public sectors on them and the cross-border nature of the threats, international law cannot remain indifferent. In particular, it should not hide behind old and tired dogmas, but should instead reform and recognise the importance and intricacies of cyberspace and provide the means for organising and regulating this area in order to attain the peaceful and healthy use of information s­ ystems and technology. This may require a bolder move towards the explicit ­regulation of cyberspace, or a thorough review of existing international laws, rather than just a reinterpretation of existing rules and concepts.109 Even if a regulatory regime is agreed at some point, technological flaws on the one hand and fast-paced technological developments on the other will put pressure on the law. However, recognising cyberspace as a domain with its own legal regime will foster common understandings of rights, obligations and actions and disseminate pertinent norms and principles.

108  ‘Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security’ (30 July 2010) UN Doc A/65/201, para 18. 109 Although note the US position that ‘The development of norms for state conduct in cyberspace does not require a reinvention of customary international law, nor does it render existing international norms obsolete. Long-standing international norms guiding state behaviour—in times of peace and conflict—also apply in cyberspace. Nonetheless, unique attributes of networked technology require additional work to clarify how these norms apply and what additional understandings might be necessary to supplement them’; The White House, International Strategy for Cyberspace (n 4).

Index Abusive governments creation of territorial administrations East Timor  261–64 Kosovo  264–67 threats to peace and security  260 irrelevance of democratic legitimacy democracy as a human right  269–71 governmental abusiveness  267–68 political participation  268–69 overthrow of incumbent governments collective denial of legitimacy  255–60 effective control test  250 GA approach to Taiwan  250–51 non-recognition  251–53 SC response to coup regimes  253–54 Afghanistan  89, 255–57, 272, 386 Africa human security  38 African Union (AU) governance role  74–75 military co-operation with UN  84–85 regional security  71 response to maritime piracy  192–93 multilateralism  88–89 Aggression ‘essential security interests’  277 human security  44 ICC jurisdiction  99 narrow interpretation of security  44 Osama bin Laden  245 referred to in UN Charter  3–4, 369 relationship between ICC and Security Council  100–101 role of security communities  9 scope of international criminal law  371 Antarctica Antarctic Treaty System accession to CCAMLR  328–32 joining  319–28 legal instruments  302–03 relationship between legal and geographical landscapes ‘Antarctica’ defined  308–10 differences between AT and CCAMLR  311 different boundary approaches  317–18 ‘the polar regions’ defined  307–08 underlying challenges  306–07 ‘security’ defined  303–06 threats posed  301

Arctic Arctic Council joining  332–34 observer status for non-Arctic states  334–37 legal instruments  302–03 relationship between legal and geographical landscapes ‘Arctic’ defined  312–17 different boundary approaches  317–18 ‘the polar regions’ defined  307–08 underlying challenges  306–07 ‘security’ defined  303–06 threats posed  301 Argentina BITs not containing ‘security interest’ exceptions  295–98 ‘security interest’ exceptions in BITs fundamental questions posed  275–76 ‘necessary’ measures  283–92 self-judging language  292–95 threshold questions about ‘essential’  280–83 without self-judging language  276–80 Armed conflicts adoption of new treaties  38 applicability to cyber-threats  12 cyber-threats  12, 16 drones  18 ‘essential security interests’  277 risks of climate change  348 security agendas  21–22, 34 use of drones outside state jurisdiction  21–22 Bilateral investment treaties (BITs) BITs not containing ‘security interest’ exceptions  295–98 ‘security interest’ exceptions fundamental questions posed  275–76 ‘necessary’ measures  283–92 self-judging language  292–95 threshold questions about ‘essential’  280–83 without self-judging language  276–80 Civil and political rights abusive governments regional treaties  373

392  Index right to political participation  268–69 switch to democracy  269–71 increasing domestic use of drones  19–20 inviolability of human dignity  209 problems with human security  49–50 responsibility to protect  116, 121, 123, 125–28, 135–36 Climate change defined  341 inadequacy of international law  360–63 international legal response adaptation  351–52 cooperation  352–55 mitigation  350 United Nations  348–49 securitisation of problem  355–60 security implications economic security  346–47 human well-being  345–46 peace and security  347–48 territorial sovereignty  344–45 Collective security cyber-threats  387 focus on civilian protection  36–37 key element of security  4 part of approach to human security  39–41 proliferation of security agendas  6 security communities  9–11 Communities see Security Communities Consequentialism deontology compared  225–26 underlying philosophy  224–25 war against terror the destruction of ‘one’  235–46 just war  226–27 origins in Lockerbie bombing  227–35 Cooperation Antarctica  304 ICC and UN Peacekeeping Operations  111–14 key element of security  4 military co-operation between regional security providers and UN  74–75 response to climate change  352–55 responsibility to protect causes of threats  121–22 prevention and assistance  122 reaction and response  122–23 Copenhagen School  6–8, 73 Coup regimes legitimacy  250 military intervention  83 Security Council response  253–54 validation by democratic means  126 Crimes against humanity abusive governments  272 AU intervention  88

ICC jurisdiction  99 responsibility to protect  121 scope of international criminal law  371 terrorism  234 Criminal law see International criminal justice Customary international law arms limitation  142 cyber-threats  370 espionage  374 human rights  374 international investment law  288 self-defence  381 torture  211 use of force  377 Cyber-security absence of UN action  11 Governmental Expert Group Reports  13 international law framework customary international law  370 espionage  374–75 human rights  373–74 international criminal justice  371–72 international humanitarian law  370–71 state responsibility  369–70 terrorism  372–73 UN Charter  369 use of force  16, 370 international responses  12 jus ad bellum collective security  387 non-state actors  385–87 self-defence  381–85 unlawful use of force  377–80 types of threat cyber-attacks  368 cyber-crime  368 cyber-espionage  367–68 terrorism  366–67 De Menezes, Jean Charles  242–44 Deontology consequentialism compared  225–26 underlying philosophy  225 Dignity see Human dignity Drones human rights domestic use  19–20 use outside state jurisdiction  21–22 re-assessment of security following 9/11  22 response of IL  18–19 East Timor  89, 260–64, 266, 272 Economic Community of Western African States (ECOWAS) governance role  74–75

Index 393 military co-operation with UN  74 multilateralism in Liberia  87–88 regional security  71, 74 Economic security climate change  346–47 economic costs of environmental security  58–61 need for agreed system of rules  62–64 Environmental security climate change defined  341 inadequacy of international law  360–63 international legal response  348–55 securitisation of problem  355–60 security implications  341–48 connection with food security  51–53 connection with health security  53–55 economic costs  58–61 need for agreed system of rules  64–65 personal perils and condemned communities  55–58 polar regions  303–06 proliferation of security agendas  6–7 relationship with human security basis for minimum protection standards  45–46 exemplars of protection  46–49 problems with political security  49–50 Espionage  366–68, 374–75 European Union governance role  74–75 military co-operation with UN  74–75 response to maritime piracy  190 role model for regions  71–74 transformation since Cold War  71–75 multilateralism  89–91 Extraterritoriality cyber-threats  374 maritime piracy  194 use of drones  16, 18 Food security connection with environmental security  51–53 need for agreed system of rules  63 proliferation of security agendas  6–7 shift in focus  35–36 Force see Use of force Genocide AU intervention  88 ICC jurisdiction  99 scope of international criminal law  371 Governance Arctic Council  332–34 governmental abusiveness  267–68 human security  30, 37

polar regions  301, 306, 314 regional security  71–72, 74–75 responsibility to protect  128 role of international community  122–23 switch to democracy  269 threat from climate change  347, 351, 357, 359 threats to individual security  121 Haiti  126, 249, 253–54, 259, 270, 272 Health security connection with environmental security  53–55 need for agreed system of rules  63 proliferation of security agendas  7 Human dignity development of IL to include human security  32 need for common ground  61 terrorism erosion of previously inviolable principles  212–13 foundational principle  207–08 Human rights cyber-threats  373–74 development to include human security  33 drones domestic use  19–20 use outside state jurisdiction  21–22 focus of GA  14 governmental abusiveness defined  267 democracy as a human right  269–71 political participation  268–69 human security debate on meaning and scope of human security  31 part of approach to human security  38–39 protection of key components  44–45 terrorism consequentialism  224–25 deontology  225 international human rights law  210–12 inviolability of human dignity  207–08 repositioning of rights in the moral field  223–24 utilitarian debate  225–26 use of internet  17 Human security see also Food security; Health security; Responsibility to protect absence of common positions  61–62 climate change  345–46

394  Index debate on meaning and scope broadened, multi-sectoral understanding  29 emergence of minimalist conception  30 focus on ‘security’  28 multidimensional and comprehensive approach  30–31 ‘rights-based’ approach  31 Secretary-General’s report  27–28 shift in ‘referent objects’  28–29 defined  25 development of international law means by which security threats are addressed  37–41 scope of security issues  34–37 shifting the focus (referent object) of security  32–34 economic costs of environmental security  61 key challenge for the 21st century  43 key components  43–44 need for agreed system of rules  62–64 personal perils and condemned communities  55–58 problems of enforcement  45 proliferation of security agendas  6 relationship with environmental security basis for minimum protection standards  45–46 exemplars of protection  46–49 problems with political security  49–50 security multiplier in three dimensions  41–42 threats posed by drones  18 Humanitarian intervention AU role  83 human security  40 Kosovo  86, 264 policy debate concerning security  26 responsibility to protect  131–33 International Atomic Energy Agency (IAEA) Iranian perspectives  149–52 origins and development of NPT  144–49 International Criminal Court (ICC) interaction between peace and justice  95, 97–98 relationship with Security Council cooperation regime  111–14 deferrals under Art 16  107–11 jurisdiction over crime of aggression  100–101 pre-conditions for referral  103–07 referrals under Art 13(b)  101–03

responsibility for individual cyber-threats  13–14 International criminal justice cyber-crime  368, 371–72 key element of security  3 link with security  93–94 maritime piracy ability to extend regional reach  178–84 current trend of attacks  171–73 defined  167–69 evolution into asymmetrical economic hazard  173–78 evolution into multifarious criminal offence  184–89 international response  189–97 relationship between ICC and Security Council cooperation regime  111–14 deferrals under Art 16  107–11 jurisdiction over crime of aggression  100–101 pre-conditions for referral  103–07 referrals under Art 13(b)  101–03 relationship with peace  94–99 International Criminal Tribunal for Rwanda (ICTR)  94–95 International Criminal Tribunal for the former Yugoslavia (ICTY) establishment  94–95 interaction between peace and justice  97 International humanitarian law abusive governments  255–56 applicability to cyber-threats  16, 366, 370–71, 381, 389 drones  18 human security  32–33, 40 maritime piracy  192 security agendas  12 use of force  12–13 International investment law BITs not containing ‘security interest’ exceptions  295–98 ‘security interest’ exceptions in BITs fundamental questions posed  275–76 ‘necessary’ measures  283–92 self-judging language  292–95 threshold questions about ‘essential’  280–83 without self-judging language  276–80 International law conversion of new threats into legal principles  13 cyber-threats customary international law  370 espionage  374–75 human rights  373–74 international criminal justice  371–72

Index 395 international humanitarian law  370–71 state responsibility  369–70 terrorism  372–73 UN Charter  369 use of force  370 development to include human security means by which security threats are addressed  37–41 scope of security issues  34–37 shifting the focus (referent object) of security  32–34 response to drones  18–19 responsibility to protect alternative understanding of threats  123–33 concept of ‘(in)security’  121–23 development of doctrine  117–20 problem of an evolving norm  133–36 International organizations Arctic Council  314–17 climate change  344, 364 Economic Community of Western African States (ECOWAS) governance role  74–75 military co-operation with UN  74 multilateralism in Liberia  87–88 regional security  71, 74 International Atomic Energy Agency (IAEA) Iranian perspectives  149–52 origins and development of NPT  144–49 maritime piracy  176, 192, 195 North Atlantic Treaty Organization (NATO) governance role  74–75 multilateralism in Kosovo  85–87 regional security  71, 73–74 response to maritime piracy  190–91 responsibility to protect  135–36 multilateralism  88 nuclear weapons  146, 156–57 reaction to terrorism  247 regional security  87 role of regional security providers  78–80 security agendas  5 Investment law see International investment law Iran interpretation of Art III NPT  155 objections to role of IAEA Board of Governors  155–59 perspectives on non-proliferation  149–52 right to peaceful use of nuclear energy  159–62

Just wars applicability to cyber-threats  12, 16 collective security  387 non-state actors  385–87 self-defence  381–85 unlawful use of force  377–80 against terror  226–27 Justice see International criminal justice Kosovo  85–87, 135–36, 249–50, 264–67 Legitimacy abusive governments  249–50 ATCM  338 creation of territorial administrations  260–67 effective control test  250 governmental abusiveness defined  268–69 democracy as a human right  269–71 political participation  267 human security as driving force  36 overthrow of incumbent governments  255–60 Liberia  87–88 Libya  41, 106, 120, 132, 158, 217, 227–32, 249–50, 256–59, 271 Lockerbie Bombing  228–32 Maritime piracy ability to extend regional reach  178–84 concluding remarks  197–206 current trend of attacks  171–73 defined  167–69 evolution into asymmetrical economic hazard  173–78 evolution into multifarious criminal offence  184–89 international response  189–97 overview  167–71 ‘Nation states’  216–18 Non-proliferation see Nuclear weapons Non-state actors food security  35 response to cyber-threats  385–87 North Atlantic Treaty Organization (NATO) governance role  74–75 multilateralism in Kosovo  85–87 regional security  71, 73–74 response to maritime piracy  190–91 responsibility to protect  135–36 multilateralism  88 Nuclear weapons bilateral treaties  276 criminal law regimes  371 non-proliferation regime

396  Index concluding remarks  162–66 interpretation of Art III NPT  152–55 Iranian perspectives  149–52 origins and development of NPT  144–49 right to peaceful use of nuclear energy  159–62 role of IAEA Board of Governors  155–59 realist focus  6 seen as real threat  221 self-defence  384 transportation in the Arctic  305 Osama bin Laden  245–46 Peace see also Security key element of security  3 relationship with international criminal justice  94–99 right to peaceful use of nuclear energy  159–62 threats from climate change  347–48 threats from creation of territorial administrations  260 Piracy see Maritime piracy Polar regions see Antarctica; Arctic Politics see Civil and political rights Realism  6 Regional security climate change  344 development of regional organizations  71–75 governance  74–75 importance  91–92 military co-operation with UN example of multilateral action  84–85 multilateralism UN view  85–88 view from regional actors  88–91 relationship with UN  75–81 transformation of EU  69–71 Responsibility to protect see also State responsibility alternative understanding of threats crimes other than mass atrocity crimes  124–26 importance of socio-economic rights  126–28 international community’s contribution to ‘death by economics’  129–31 return to military action  131–33 concept of ‘(in)security’ causes of threats  121–22 overview  121 prevention and assistance  122 reaction and response  122–23

concluding remarks  136–37 development of doctrine current need for action  120 implementation report 2009  119 International Commission on Intervention/ and State Sovereignty 2001  117–18 UNGA World Summit 2005  118–19 overview  115–16 problem of an evolving norm  133–36 Russia approach to cyber-security  11–12 cooperation in Arctic  315–17 coup attempts  126 cyber-attacks  378 intervention in Georgia  16 use of force  86 Security see also Peace link with international criminal justice  93–94 meaning and scope  3–4 polar regions  303–06 raison d’être for establishment of the UN  4 re-assessment following 9/11  22 responsibility to protect causes of threats  121–22 overview  121 prevention and assistance  122 reaction and response  122–23 ‘security interest’ exceptions in BITs BITs not containing ‘security interest’ exceptions  295–98 ‘necessary’ measures  283–92 self-judging language  292–95 threshold questions about ‘essential’  280–83 without self-judging language  276–80 ‘shared understanding of what is considered a threat’  7 state need for security concept of state  213–15 meaning of security  218–19 ‘nation states’  216–18 new meta-security narrative  220–23 threats from creation of territorial administrations  260 Security agendas expansion to include human security  34–37 proliferation  5–8 Security communities collective security  9–11 defined  8 personal perils and condemned communities  55–58 UN approach to technology  11–18

Index 397 Self-defence cyber-threats  370, 381–85 regional security  88, 91–92 terrorism  220 UN Charter provisions  80, 369 use of force  4 Sovereignty economic costs of environmental security  58 self-defence  220 threat from climate change  344–45 State responsibility see also Responsibility to protect cyber-threats  13–14, 369–70, 385–86 human security  30 international investment law  281–88 terrorism  372–73 States and statehood concept of state  213–15 meaning of security  218–19 ‘nation states’  216–18 new meta-security narrative  220–23 Syria  37, 41, 57, 98, 105, 120, 132, 152, 165, 258–60, 272 Technology see also Cyber-security economic costs of environmental security  58 limited progress by UN  23 UN as security community  11–18 UN response to drones  18–22 viewed as threat  5 Terrorism consequentialist war against terror the destruction of ‘one’  235–46 just war  226–27 origins in Lockerbie bombing  227–35 cyber-threats  366–67, 372–73 foundational principles erosion of previously inviolable principles  212–13 international human rights law  210–12 inviolability of human dignity  207–08 human rights consequentialism  224–25 deontology  225 repositioning of rights in the moral field  223–24 utilitarian debate  225–26 increasing international focus  207–08 overview  207–08 polar regions  303–04 state need for security concept of state  213–15 meaning of security  218–19 ‘nation states’  216–18 new meta-security narrative  220–23

use of drones outside state jurisdiction  21–22 Threats abusive governments creation of territorial administrations  260–67 irrelevance of democratic legitimacy  267–71 overthrow of incumbent governments  250–67 climate change economic security  346–47 human well-being  345–46 peace and security  347–48 territorial sovereignty  344–45 conversion into legal principles  13 cyber-security cyber-attacks  368 cyber-crime  368 cyber-espionage  367–68 international law framework  370–75 jus ad bellum  375–87 state responsibility  369–70 terrorism  366–67 UN Charter  369 to human security collective and individual security compared  39–41 key components  44 multidimensional approach to security  37–39 maritime piracy ability to extend regional reach  178–84 current trend of attacks  171–73 defined  167–69 evolution into asymmetrical economic hazard  173–78 evolution into multifarious criminal offence  184–89 international response  189–97 personal perils and condemned communities  55–58 polar regions  301 responsibility to protect alternative understanding of threats  123–33 concept of ‘(in)security’  121–22 security as ‘shared understanding’  7 ‘security interest’ exceptions in BITs BITs not containing ‘security interest’ exceptions  295–98 ‘necessary’ measures  280–83 self-judging language  292–95 threshold questions about ‘essential’  280–83 shift in focus of regional service providers  78 technology  5

398  Index terrorism consequentialist war against terror  226–46 erosion of previously inviolable principles  212–13 increasing international focus  207–08 international human rights law  210–12 inviolability of human dignity  207–08 overview  207–08 state need for security  213–23 ‘Ticking Bomb Scenario’  238–39 Torture collective denial of legitimacy  256 customary international law  211 human rights  374 inviolable human rights  208 need for common ground  61 political prisoners  252 use against terrorists  238–42 United Kingdom changes in international law post-9/11  235 domestic legal instruments dealing with terrorism  233–34 Jean Charles de Menezes  242–44 response to Lockerbie bombing  229–32 ‘War on Terror’  220 United Nations approach to technology  11–18 Charter cyber-threats  369 establishment of ad hoc tribunals  94–95 meaning and scope of ‘security’  3–4, 219 role of regional security providers  75–81 enhanced democracy  270–71 limited progress in confronting new technologies  23 movement towards justice  94–95 policy discourse on human security  25–26 regional security military co-operation with regional security providers  74–75 multilateralism  85–88 response to abusive governments  250–53 response to climate change  348–49 response to drones  18–22 responsibility to protect  118–19 Security Council approach to East Timor  261–64 approach to Kosovo  264–67 collective security  9–11

denial of legitimacy to abusive governments  255–60 general approach to terrorism  234–35 human security  36 proliferation of security agendas  6–7 relationship with ICC  99–114 response to coup regimes  253–54 response to Lockerbie bombing  229–30 response to maritime piracy  181–84, 191–92 United States approach to cyber-security  12 changes in international law post-9/11  235 cooperation in Arctic  315–17 Osama bin Laden  245–46 response to Lockerbie bombing  229–32 threats to indigenous peoples  56 ‘Ticking Bomb Scenario’  238–39 use of drones outside state jurisdiction  21–22 use of lethal force against terrorists  238 ‘War on Terror’  220 Unmanned Aerial Vehicles (UAVs) see Drones Use of force abusive governments  250, 257 applicability to cyber-threats  12 cyber-threats  16, 370, 377–80 drones  19 exceptions  4 human security  40 international humanitarian law  12–13 Kosovo  264 maritime piracy  175–76, 190–91, 199–200 policy option  132–35 regional security  78, 81, 85–88 security agendas  21 UN Charter provisions  369 use of drones outside state jurisdiction  21–22 War crimes abusive governments  272 AU intervention  88 ICC jurisdiction  99 responsibility to protect  121 scope of international criminal law  371 United Nations General Assembly World Summit 2005  118 ‘Weak cultural relativism’  57 Weapons of mass destruction see also Nuclear weapons cyber-threats  380 human security  26 realist focus  6