Archive for
March, 2018

Five PhDs and One Postdoc at the University of Amsterdam

by Kevin Jon Heller

I am delighted to announce that my law school is advertising six new positions to start in September 2018 — five PhD and one postdoc. The postdoc will be public international law with a focus on international economic law:

The vacancy is for a Postdoctoral researcher in Public International Law. The researcher should have a background in International Economic Law (broadly understood) that allows her/him to possibly contribute to teaching tasks (see below on ‘tasks’).

The postdoctoral researcher should place her/his research within the programme on ‘Law and Justice Across Borders’, in which ACIL collaborates with the Amsterdam Center for European Law and Governance (ACELG) and the Center for the Study of European Private Law (CSECL). Preferably, the postdoctoral researcher should connect to one of ACIL’s research projects (available on the ACIL website).

Three of the PhD positions will focus specifically on international criminal law:

In September 2018 a five year research project will be launched, entitled ‘The Outer limits of Secondary Liability for International Crimes and Serious Human Rights Violations’. The research project is directed by Göran Sluiter, professor in International Criminal Law, and is financed by the Netherlands Organisation for Scientific Research (NWO), by means of a VICI-grant.

The project will be embedded within the Amsterdam Center for International Law (ACIL), one of the research priority areas of the University, and the department of Criminal Law.

One of the PhD positions will be devoted to public international law generally:

The PhD researcher will develop his or her project as part of the Amsterdam Center for International Law (ACIL). In principle, the PhD researcher may focus on any aspect of Public International Law. Preferably, the research should connect to one of ACIL’s projects (available on the ACIL website).

The researcher is also encouraged to embed her/his research within the programme on  ‘Law and Justice Across Borders’, though that is not strictly necessary. In that programme, ACIL collaborates with the Amsterdam Center for European Law and Governance (ACELG) and the Center for the Study of European Private Law (CSECL).

And one PhD position will focus on the intersection of public international law and EU law:

The PhD researcher will develop his or her project as part of the Amsterdam Centre for European Law and Governance (ACELG) and Amsterdam Center for International Law (ACIL). In principle, the PhD researcher may focus on any question that involves aspects of both European Union law and Public International Law.

ACELG and ACIL cooperate together with the Centre for the Study of European Contract Law (CSECL) within the framework of the research platform ‘Law and Justice Across Borders’. An interest in participating in this broader research community is a significant advantage.

Research at ACELG And ACIL employs legal-doctrinal methods of research as well as non-legal methods. An interdisciplinary dimension of research is encouraged.

I strongly encourage Opinio Juris readers to apply. The University of Amsterdam Law School is a great place to work, with a superb Dean in Andre Nollkaemper, a new building in a great location (by the zoo!), numerous excellent ICL/PIL scholars, and a fantastic current group of (relatively new) PhDs and postdocs. With six new additions, our academic culture will be even richer.

The deadline for all the positions is May 1.

EU Court Condemns the EU Legislative Process for Lack of Transparency: Time to Open Up?

by Massimo Frigo

[Massimo Frigo is a Senior Legal Adviser of the International Commission of Jurist’s Europe Programme.]

It is sometimes cases on obscure administrative processes that become landmark judgments in the ever constant building of our democratic legal systems. In the US Marbury v. Madison was a case that at the time attracted little attention as the subject matter related to respect of procedures in judicial appointments. This notwithstanding it came to be the legal milestone of constitutional review in the US legal system.

In the European Union one of these cases was decided on 22 March: Emilio De Capitani v. Parliament. As it will be outlined below, it is a technical case that goes to the heart of the procedure of one of the fundamental institutions in a democracy: Parliament.

  1. The EU legislative decision-making process

Unlike the United States, the European Union is not a State. However, it retains more and more competence to legislate in areas of everyday life and of crucial constitutional State prerogatives, including in the sphere of justice and home affairs that includes immigration, asylum, border control, and police cooperation.

The legislative process of the EU may be generally simplified in this way: the European Commission, i.e. a body of supposedly independent experts appointed by the European Council (see, the 28, soon 27, heads of State or government of its Member States) and approved by the European Parliament (the only institutions directly elected by EU citizens), has the initiative to table legislation.

Once the proposal is tabled it is the turn of the co-legislators to discuss it, amend it, approve it or reject it. At any moment the European Commission can withdraw the proposal and put an end to the process.

The EU legislators are the European Parliament and the Council of the European Union. The latter consists of the Governments, often in the configuration of the ministries relevant to the legislative piece to be discussed, of the EU Member States. These two bodies must agree on the legislative text, and its potential modifications, and approve it in the same form before it can become law. They can do it in one or two reading sessions.

In the last decades, since this procedure (once called “co-decision” and now “ordinary legislative procedure”) came to exist, a practical solution to speed up the legislative procedure was found by holding what are called “trilogues”. These are closed meeting among representatives of the Council of the EU, the European Parliament and the European Commission to find a compromise and produce an agreed text that will have to be voted by their respective committees and plenaries into law.

The practice of these trilogues is that no one has access to them nor to any document on the suggestions of compromise. Furthermore, when an agreement is reached, statistically, both the Parliament and the Council approve the compromise into law. It is therefore a key moment in the legislative process. And it is absolutely foreclosed to EU citizens and civil society.

  1. The case

Mr De Capitani brought a challenge to the General Court of the European Union, the judicial body competent for cases against EU institution at first instance, because Parliament, after having consulted the Council and the Commission, refused him access to the part of a document in the legislative process. Specifically this part of the document is the fourth column in a tabled document that reports the compromises reached or suggested during the trilogues, while the first three of them include the original proposal and the positions of the institutions.

  1. The judgment

The General Court ruled that, “contrary to what the Council maintains …, … the trilogue tables form part of the legislative process.” (para 75, , De Capitani)

It pointed out that

78. … it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole … .

The Court dismissed the EU institutions’ exception that non-disclosure was necessary because the document dealt with a draft law in the area of police cooperation. The Court very strongly ruled that

89… the fact … that the documents at issue relate to the area of police cooperation cannot per se suffice in demonstrating the special sensitivity of the documents. To hold otherwise would mean exempting a whole field of EU law from the transparency requirements of legislative action in that field.

Furthermore the Court stressed that

90…. the documents at issue concern a proposal for a draft regulation, of general scope, binding in all of its elements and directly applicable in all the Member States, which naturally concerns citizens, all the more so since at issue here is a legislative proposal directly affecting the rights of EU citizens, inter alia their right to personal data protection …, from which it follows that the legislative proposal could not be regarded as sensitive by reference to any criterion whatsoever … .

The Court then dealt with the assertion that access to these documents could increase public pressure on the representatives of the EU institutions involved in the trilogue procedure:

98… in a system based on the principle of democratic legitimacy, co-legislators must be held accountable for their actions to the public. If citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information … Thus, the expression of public opinion in relation to a particular provisional legislative proposal or agreement agreed in the course of a trilogue and reflected in the fourth column of a trilogue table forms an integral part of the exercise of EU citizens’ democratic rights, particularly since … such agreements are generally subsequently adopted without substantial amendment by the co-legislators.

Finally, while allowing still the possibility for certain situations (“duly justified cases”) of non-disclosure for co-legislators, including Parliament (para 112, De Capitani), the Court closed by rejecting also the argument raised by Parliament that making public documents of the trilogue would have taken away the nature of these meetings as a “space to think” . The Court unmistakably reminded Parliament that these meetings are essential parts of the legislative procedure and not “spaces to think” and as such must be subject to the required level of publicity (para 105, De Capitani).

  1. Conclusion: a more democratic EU?

The European Union does not enjoy today the best image in terms of transparency, accountability and democratic processes. Its institutions have been openly attacked from many different quarters for their lack of transparency and the bureaucratic nature of their procedures. Most of these attacks are populist fear-mongering that simply aims at finding a scapegoat to gain political traction, votes and, hence, power. However, as we have seen, some critiques of the EU structure cannot be simply dismissed as political nonsense and one of them is about the legislative process in the EU that affects the lives of almost 500 million people.

The De Capitani ruling throws a breath of fresh air to these institutions and, importantly, demonstrates that, while some institutions of the EU may be criticised for lack of transparency and obedience to the rule of law, there are institutions, notably the EU courts, that can address the problem within.

This ruling can still be subject to appeal before the Court of Justice of the EU. In the meantime and this notwithstanding, the crucial question is whether and how the ruling will be implemented. Will the Parliament, the Council, i.e. the Governments of the Member States, and the Commission open up to democratic scrutiny in legislative process?

The answer to this question will be vital for the EU to withstand any criticism that it does not obey the rule of law and democratic accountability. This is why this case is a turning point for the EU rule of law structure. Much of the legitimacy of the EU as a rule of law based supra-national organisation lies in what its institutions are going to do next. And we’d better be watching…

Bolivia and Chile in The Hague: Can They Quiet the Ghosts of the Pacific War, and Thrive Together in the 21st Century?

by Monica Feria-Tinta and Simon Milnes

[Monica Feria-Tinta is a barrister specialising in Public International Law, at the Bar of England and Wales and Simon Milnes is a barrister specialising in international environmental law and the business/ human rights nexus.]

The Americas’ proud heritage of settling disputes through international law entered a new chapter this week, as arguments opened in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), a claim by Bolivia to regain access to the sea lost in 1879. Brilliant legal minds will cross swords over the coming days, over whether Chile is obliged to sit down and negotiate with Bolivia. But, whoever prevails in Court, negotiations could prove a win-win by healing a troubled relationship.

Bolivia lost its 200-mile coast after humiliating defeat in the 1879-83 ‘War of the Pacific’ that broke out after an earthquake forced Bolivia to impose taxes on Chilean exporters of nitrate and saltpetre. Even as Bolivia’s port of Antofagasta fell, Chile’s foreign minister, Domingo Santa María, argued that “we cannot suffocate Bolivia … we must somehow provide it with its own port, a front door …”. In 1904, a Chile-Bolivia peace treaty agreed the coastal territories now belonged to Chile “in perpetuity.” Yet sentiments like Santa María’s have echoed down the years. Bolivia contends that from the totality of these assurances, Chile has given a solemn undertaking to negotiate a sovereign access to the sea.

Several features of the case are likely to fascinate international lawyers.

Non-treaty commitments

First, while most international cases centre on treaties or customary rules, here Bolivia cites mostly political declarations, diplomatic notes and resolutions. Are such statements mere ‘soft law’ lacking binding effect? Or do they create some enforceable obligation? At the heart of this question is the problem of how to decide what the sources of international law are (beyond the most orthodox categories in the ICJ Statute). The ICJ’s own case law establishes that an agreement involving states may be binding even if it is not a treaty (Anglo-Iranian Oil Case), and that unilateral declarations of a State can create binding obligations (Nuclear Tests (Australia v. France), also considered in the UK/Ireland OSPAR arbitration (2003)). But the ICJ also cautioned that declarations that do so “may be, and often are very specific”, and that a “restrictive interpretation” is called for (Nuclear Tests, Australia v. France).

Good faith, conduct and result

Second, is Bolivia’s claim pushing the envelope by linking negotiations to a specific result? Or is it only an ‘obligation of conduct’ (i.e. to discuss, without prejudging the outcome)?

Good faith is overarching and ever-present in international law, with a long legal pedigree. The Venezuelan Preferential Claims Case (1904) affirmed that good faith “ought to govern international relations“. Indeed, the Tacna-Arica arbitration (1925), also arising from the War of the Pacific, was one of the earliest decisions on the legal duty to negotiate in good faith. In the Right of Passage over Indian Territory Case (1960), Judge ad hoc Fernandes called it “the most general and the most essential of the general principles of law, while in the celebrated WTO case US-Shrimp, the Appellate Body described it as “at once a general principle of law and a general principle of international law”. Yet, as Bin Cheng put it in his 1953 classic, General Principles of Law, “[w]hat exactly this principle implies is perhaps difficult to define”. It usually does its work through other legal rules, not as a freestanding source of obligations.

International law has not shrunk back from finding states to be under obligations to negotiate “in good faith”. As regards the conduct element – manner, modalities, and attitude – it is already clear that no ‘box-ticking’ exercise would suffice. In North Sea Continental Shelf (Germany v. Denmark), the ICJ held that international law on the delimitation of continental shelf boundaries required the two states to negotiate sincerely and to make real efforts to equitably accommodate one another’s interests (“to enter into negotiations with a view to arriving at an agreement . . . [and] so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it . . .”). Thus, if the ICJ finds that Chile bound itself to negotiate, this will likely include a duty to make negotiations “meaningful”, including contemplating modifications to its position and identifying what concessions from Bolivia could be an acceptable price for access to the ocean.

As regards the result element, this is perhaps the most complex and difficult aspect. In the PCIJ advisory opinion on Railway Traffic between Lithuania and Poland, the two states had concurred in accepting a recommendation to “enter into direct negotiations as soon as possible” so as to establish “the good understanding between nations upon which peace depends” – theoretically a ‘result’ obligation, but perhaps so broadly worded that it is dubious whether it could be enforceable. (Such doubts nonetheless call to mind the observations of Judge Lauterpacht in his Separate Opinion in South-West Africa Voting Procedure:however rudimentary, elastic, and imperfect” the content of a binding resolution may be, it does not lose its nature as a legal obligation. Discussing this Opinion, O’Connor wrote that Lauterpacht emphasized “the legal nature” of the obligation to act in good faith, even where “it was difficult to draw the dividing line between a legal obligation and a non-legal obligation.”)

Contrastingly, in the ICJ’s 1996 Nuclear Weapons Advisory Opinion, the Court held that all parties to the Non-Proliferation Treaty had bound themselves absolutely to achieve “a precise result” – complete denuclearization – with good faith negotiations as the means.

Bolivia’s contentions fall somewhere in between the two. Unlike “good understanding” (Railway Traffic), the concept of “a fully sovereign access to the Pacific Ocean” has some irreducible substantive content; on the other hand, unlike the single “precise result” required in Nuclear Weapons, there are many possible permutations for how it could be achieved, and what Bolivia could offer in return.

In the Fisheries Jurisdiction Cases (UK v Iceland), the Court held that negotiating in good faith required the parties to “reasonable regard to the legal rights of the other”. But to what extent could good faith require regard for considerations beyond “hard law”, such as justice and equity?

Whilst some consider equity an extra-legal notion, others regard it a general principle of international law. Indeed in the Tunesia/Lybia Continental Shelf Case, the ICJ made it clear that equity is a general principle “directly applicable as law” [1982] ICJ. Rep p. 60.

Context – the obligation to use pacific means to settle international disputes

Third, the dispute throws into relief the ways that general principles – like the obligation to use ‘pacific means’ to settle disputes, ‘good neighborliness’ (reflected in Article 74 of the UN Charter), and equity or justice – may shape concrete legal duties. Equity plays a role, though limited, in deciding existing borders (Frontier DisputeBurkina Faso/Mali), but questions of negotiating to move frontier lines are uncharted territory.

While the legal questions are difficult, Bolivia’s confinement appears (in layman’s terms) so unfair that a negotiated change would seem to offer better prospects all round. Objective data shows that landlocked countries suffer impediments to development. In today’s global economy, a coastline with a port means the chance to develop a whole ‘ecosystem’ of production and service industries which support one another, increasing GNP: freight-forwarding, chartering, ship repairs, marine fuels, insurance, etc, not to mention fisheries and the ‘Blue Economy’ [openknowledge.worldbank.org].

What does Chile have to gain, if it were to negotiate Bolivia’s access to the sea? More cordial relations, clearly – but probably much more: strong demand for Bolivia’s natural gas, and a prolonged drought in Chile, with water supply to the Santiago region expected to fall by 40% over the next half-century, could increase the value of Bolivia’s potential gas and water exports to Chile.

Recent examples justify optimism. Last week, Timor-Leste and Australia put years of acrimony behind them with a new maritime boundary treaty. In Latin America, the Pulp Mills dispute (Argentina/Uruguay) is an encouraging precedent: within 6 months of the ICJ’s 2010 judgment they had negotiated new environmental protection arrangements for the River Uruguay. Across the world, Singapore and Malaysia experienced frictions over a railway track owned by Malaysia that bisected its island neighbour; in 2010 they negotiated to swap the railway land for stakes in prestigious real estate. Today, the tracks that generated so much discord are a much-loved nature trail.

In short, governments who get around a table with a will to find solutions can surprise themselves. Vision and pragmatism on both sides could transform Bolivia’s economic future, see Chile recompensed, and demonstrate the strength of the Americas’ distinctive tradition of peace and law in international affairs.

The ICC and Israel: Prosecuting the Punitive Demolition of Palestinian Homes – Part 2

by Elvina Pothelet

[Elvina Pothelet is a Visiting Researcher at the Harvard Law School and a Ph.D. candidate at the University of Geneva. This is the second part of a two-part post. Part one can be found here.]

Part 1 of this post argued that Israel’s policy of punitive demolitions of Palestinian homes may amount to a grave breach under Art. 8(2)(a)(iv) of the Rome Statute. Part 2 explores alternative qualifications under the Statute and argues that a case on punitive demolitions before the ICC would likely pass the admissibility tests of complementarity and gravity.

Alternative qualifications

In addition to the grave breach qualification under Art. 8(2)(a)(iv), the punitive demolitions could also amount to the war crime of “[d]estroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war”, under Art. 8(2)(b)(xiii). Curiously, none of the legal analyses of Israel’s punitive demolitions that I have encountered discuss this alternative qualification. If the reason is that “the enemy’s property” is understood as covering only the public property owned or controlled by the enemy party (the State of Palestine), such a restrictive reading is unwarranted.

It is true that the ICC Elements of Crimes for Art. 8(2)(b)(xiii) only indicate that the property must be “property of a hostile party”. However, the travaux of the PrepCom (which drafted the Elements of Crimes) suggest that this includes private property. Indeed, the Proceedings of the PrepCom issued at the end of its 3rd session specify: “Such property was private or public property of the hostile party” (see PCNICC/1999/L.5/Rev.1/Add.2). Since this interpretation was not disputed, the clarification was eventually deleted (Dörmann, p. 251). ICC case law relating to the destruction of property in NIAC confirms this (while Art. 8(2)(e)(xii) applicable in NIAC uses the slightly different formula “property of an adversary” instead of “enemy’s property” under Art. 8(2)(b)(xiii), the two are considered synonymous, see Dörmann, p. 485). The Katanga trial judgement confirms that enemy property includes private property (para. 892).

Furthermore, the meaning of “enemy” should be understood lato sensu, as including civilians perceived as being affiliated with the enemy. Katanga was indeed convicted for the war crime of destruction of property based on the finding that “the predominantly Hema population of Bogoro were considered adversaries” by the attackers because of their allegiance to the UPC” (para. 943, emphasis mine). Multiple declarations by Israeli officials could constitute evidence that victims of punitive demolitions are perceived as “the enemy” in the context of the occupation: in fact, they are targeted precisely because of their alleged ties with “terrorists”, a qualifier which cannot be understood in isolation from the situation of occupation.

As to the possible justification of “necessities of war”, the reasoning on military necessity developed in Part 1, applies equally (for an analysis in relation to Art. 8(2)(b)(xiii) specifically see Schabas, pp. 293-294).

Alternatively, the Prosecutor could prosecute punitive demolitions as “inhuman treatment”, a grave breach and war crime under Art. 8(2)(a)(ii) and Art. 8(2)(b)(xxi) respectively, due to its nature as collective punishment (see Al-Haq report, p. 15 and Expert Opinion p. 37). Finally, some have argued that the practice may amount to the crime against humanity of persecution (Al-Haq report, p. 53) – but considering the strong connection with the situation of occupation, the war crime qualification appears more straightforward.

Admissibility concerns

Art. 8(1) of the Rome Statute encourages the Court to focus on war crimes “committed as part of a plan or policy or as part of a large-scale commission of such crimes”. Punitive house demolitions are not only a practice but also a clear policy of the Israeli government, sanctioned by Israeli law. As such, it falls within the scope of this statutory guidance.

Turning to issues of admissibility, a potential case focused on (or including) charges for punitive demolitions would likely pass the tests of complementarity and gravity under Art. 17 of the Rome Statute. It is clear that Israel is not prosecuting any State officials for this conduct (‘the same case’ test in ICC case law), and it is probable Israel would be found “unwilling” to prosecute its officials for designing and implementing what is after all an official State policy of the Israeli government (the same goes for settlements activities, illegal under international law but sanctioned by domestic law). Complementarity should therefore not pose any major issue.

As for gravity, a potential case would seem to meet the criteria the Court has identified in an attempt to “objectivize” this inherently discretionary notion. According to PTC case law and OTP policy papers and practice, the OTP should assess gravity in relation to the crimes as well as in relation to the potential accused. The latter consists of determining if the accused are “those who may bear the greatest responsibility for the alleged crimes committed” (see e.g. Article 53(1) Report related to the Flotilla incident, paras. 133, 135). Given the State policy nature of the crime, those most responsible for the crime would likely be Israeli civilian and/or military leaders (even though the leadership position of the accused should not be a factor of gravity, see here p. 23).

The gravity of crimes is assessed based on quantitative and qualitative considerations, along four non-exhaustive indicative factors: the scale, nature, manner of commission of the crimes and their impact (see a useful review of case law here). Regarding the scale, according to data collected by B’Tselem (and used by the Special Rapporteur on the situation of human rights in the Palestinian territories), 272 people have lost their homes since mid-2014 (the date from which the ICC can exercise jurisdiction). As to the nature of the crime as being one of destruction of property, the al-Mahdi conviction demonstrated that gravity does not necessarily imply crimes against persons. And as highlighted below, the loss of one’s home has very real consequences on one’s life and dignity. The fact that the crime amounts to collective punishment, a violation of IHL, is also relevant. In addition, the destruction of one’s private home is connected to two human rights, namely the right to housing and the right to property, which could also account for the grave nature of the crime. As to the manner of commission, it is relevant that punitive home demolitions are part of a policy (a criterion mentioned in the OTP report on the Flotilla incident, para. 140).

Finally, the impact of the crimes must be assessed from the perspective of the direct victims and also the local communities more generally (see OTP Kenya Request, paras. 56-59). The economic, social and psychological impact for direct victims of punitive demolitions is well documented. Furthermore, punitive demolitions arbitrarily attribute collective responsibility for individual acts, thus perpetuating the stigmatization of Palestinians as “terrorists”. The consequences of such stigmatization on the peace process cannot be overstated.

In conclusion, there are strong arguments in favor of including the punitive demolitions of Palestinian homes in the OTP’s next preliminary examination report. This would send a clear signal that the Israeli state’s leadership must cease its illegal activity if it wishes to avoid ICC proceedings.

The ICC and Israel: Prosecuting the Punitive Demolition of Palestinian Homes – Part 1

by Elvina Pothelet

[Elvina Pothelet is a Visiting Researcher at the Harvard Law School and a Ph.D. candidate at the University of Geneva. This is the first part of a two-part post.]

Last Friday, a car-ramming attack in the West Bank killed two Israeli soldiers and injured two others. While the suspect was apprehended shortly thereafter, Israeli Prime Minister Netanyahu pledged on Twitter to “work to demolish the home of the terrorist”. This statement reflects the commitment of the current Israeli government to an infamous policy of “punitive home demolitions”, which consists of demolishing the home of relatives of Palestinians suspected of security offences against Israel in the West Bank and East Jerusalem (two other types of demolitions are “administrative demolitions” of houses built without a permit and “clearing demolitions” carried out on the pretext of military needs such as during Operation Protective Edge in Gaza in 2014). Punitive demolitions have been widely documented (see e.g. here, here, here, here, here, and here) and denounced as amounting to collective punishment, a violation of IHL and a war crime under many national laws. Yet, the practice is surprisingly absent from the ICC Prosecutor’s preliminary examination reports on the situation of Palestine. In her 2015, 2016 and 2017 annual reports, Fatou Bensouda mentions house demolitions only under the heading of “settlement activities” which would seem to exclude punitive house demolitions.

The ICC does not have jurisdiction over the war crime of collective punishment as such. The case for including this crime in the Rome Statute has already been convincingly argued, but it was not proposed as an amendment at the 2010 Kampala Review Conference. However, as will be argued below, punitive demolitions could be prosecuted under other war crime counts. The OTP should include them in her preliminary investigation: not only could this lead to concrete charges before the ICC, and offer some prospect of justice for the hundreds of Palestinians who lost their homes since mid-2014, it could also deter the current and future Israeli governments from pursuing such a policy.

The first part of this post addresses the qualification of the policy as a “grave breach” of the Fourth Geneva Convention (GCIV), prosecutable under Art. 8(2)(a) of the Rome Statute, while the second part will address alternative qualifications as well as admissibility concerns.

The grave breach of extensive destruction of property

Israel’s policy of punitive demolitions could qualify as the grave breach of “[e]xtensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”, under Art. 8(2)(a)(iv) of the Rome Statute. Below, I will examine the elements of this crime.

First, Art. 8(2)(a) crimes require an international armed conflict (IAC). The qualification of the situation in the West Bank as one of occupation, and hence an IAC to which IHL applies, should not raise any serious legal issues and is acknowledged by the Israeli Supreme Court. (The question of the conventional applicability of GCIV in the West Bank and whether this is condition for war crimes under Art. 8(2)(a) of the Statute is beyond the scope of this post. However, it can be argued that the grave breaches provisions of GCIV underlying Art. 8(2)(a) crimes need only apply as a matter of customary law. Note that this question would not arise for Art. 8(2)(b) war crimes, discussed in part 2 of this post, given the absence of reference to the GCs in the chapeau of the article).

A second contextual requirement for the applicability of all Art. 8 crimes is that “the conduct took place in the context of and was associated with an international armed conflict” (nexus requirement). Given that Israel views demolition orders as an administrative sanction, a claim that they constitute mere law enforcement measures unconnected to the conflict is foreseeable. This argument would not hold up. If ICC judges follow, like they did in the past, the Kunarac test (the conflict – or occupation – “must play a substantial role in the perpetrator’s decision, in his ability to commit the crime or in the manner in which the conduct was ultimately committed”), there is no reason to expect the Court to question the existence of a sufficient nexus. The practice of punitive demolitions is intrinsically linked to the occupation since it is carried out in response to acts committed against Israel as the occupying power, made possible because Israel controls the territory on which the houses are located, and implemented via the occupation apparatus (authorized by the military commander under the military law applicable in the West Bank and executed by the IDF as the occupying force).

A third consideration is the protective scope of Art. 8(2)(a)(iv). The chapeau of Art. 8(2)(a) requires that the property be “protected under the provisions of the relevant Geneva Convention”. GCIV does not define which property is “protected” under its provisions but it makes sense to follow the reasoning of the ICTY according to which property belonging to protected persons is itself protected under GCIV (Blaskic, TJ, para 149-150). Given that the owners of the houses destroyed by Israel in the West Bank “find themselves […] in the hands of [an] Occupying Power of which they are not nationals”, they are protected persons under Art. 4 GCIV and therefore their property can be said to be “protected” as required by the chapeau of Art. 8(2)(a). As to the type of property contemplated in Art. 8(2)(a)(iv) specifically, it includes property protected under Art. 53 GCIV, i.e. “real or personal property belonging individually or collectively to private persons” (William Schabas, paras. 291-292; Knut Dörmann, p. 83). The property of Palestinian suspects and their relatives would thus fall under the protective scope of Art. 8(2)(a)(iv).

Fourth, according to the ICC Elements of Crimes for Article 8(2)(a)(iv), the destruction must be “extensive and carried out wantonly” and “not justified by military necessity”. In Blaskic, the ICTY indicated that “[t]he notion of ‘extensive’ is evaluated according to the facts of the case” (Blaskic, TJ, para. 157). Referring to the ICRC Commentary for Art. 147 GCIV (on which Art. 8(2)(a)(iv) is based), the judges emphasize that a single act may (or may not) suffice to characterize an offence under this count. This reasoning suggests that the extent of the destruction can be deduced not only from one incident but also from a pattern. Thus, every single demolition by the Israeli Defense Forces (IDF) need not be extensive; rather, the cumulative effect of the demolitions accounts for the extensive nature of the practice. The adverb “wantonly” has been interpreted by the ICTY as meaning that “the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction” (Kordic, TJ, para. 346). Given that the punitive demolition of Palestinian homes is implemented as part of a policy, this element should not raise any doubt. Hence, a 2014 Expert Opinion authored by four Israeli scholars concludes that:

“While any individual house demolition operation, executed on the basis of a specific order, will likely fall short of the legal standard of extensive destruction, […] a Policy leading over the years to hundreds or even thousands of house demolition not justified by military necessity, may pass the threshold of wantonness under Article 8(2)(a)(iv)”.

The requirement that the destruction be carried out “unlawfully” should be “assessed in the light of the overarching concept of military necessity” (OUP Commentary, Chapter 71, para. 51; see also Dörmann, p. 83) (the fact that the ICC Elements of Crimes for Art. 8(2)(a)(iv) do not mention the “unlawful” element but only that of “military necessity” (Element 2) confirms this interpretation. The concept of “military necessity” is often understood as the equivalent of “necessities of war” (used in Art 23(g) of the 1907 Hague Regulations). The Israeli government has successfully argued before the Israeli Supreme Court that these demolitions comply with military necessity (for an analysis of these cases see here, here and here). While the exact meaning of “military necessity” is controversial, it is uncontroversial that it differs in nature from security considerations. One way military necessity has been explained is that “[t]here must be some reasonable connection between the seizure or destruction of the enemy property and the overcoming of enemy forces” (U.S. DoD Manual, 5.17.2). The punitive nature of the demolition cannot possibly be reconciled with even the most generous understanding of military necessity, which is prospective in nature. The use of the term “deterrent” by the Israeli government, in an effort to signal the preventive as opposed to punitive nature of the policy seems to reflect no more than a difference in rhetoric – Israeli executive and judiciary branches did use the term “punishment” throughout the 1970s and 1980s to designate the same practice. Destroying private housing to sanction a perceived affiliation with “the enemy” is too far removed from the objective of overcoming enemy forces. In addition, claims that the policy is “necessary” have been challenged on the basis of empirical data showing that the policy is, in fact, ineffective at deterring terrorism. The 2014 Expert Opinion further argues that the unlawfulness of the demolitions also derives from the fact that they constitute collective punishment.

Individual Compensatory Claims for WWII Atrocities in the Final Report of the Hellenic Parliamentary Committee on Reparations: Anything New Under the Sun? Part II

by Dimitrios Kourtis

[Dimitrios Kourtis is a PhD cand. at the Aristotle University of Thessaloniki, Greece and former national expert to the Hellenic Parliamentary Committee on WWII Reparations. This is the second part of a two-part posting. The first part can be found here.] 

Having completed a preliminary debate on the FR’s arguments regarding ICCs [Part I], in this second part we examine the legal validity of the Parliamentary Committee’s proposals concerning the vindication of ICCs against Germany for atrocities committed during Greece’s WWII Occupation. Afterwards, we refer briefly to the controversial issue of statutory limitations and conclude with an overall assessment of the Committee’s work vis-à-vis ICCs.

The Judicial Remedies’ Dead-End

Despite its noteworthy contributions, the FR remains highly inconclusive regarding more practical matters, such as the appropriate judicial forum for the adjudication of ICCs. Firstly, it makes reference [p. 81] to the possibility of bringing such claims before the Arbitral Tribunal envisaged by Article 28 of the 1953 London Agreement on German External Debts. However, this argument fails to understand that such claims fall outside the subject matter of the London Agreement, as provided by Article 5(2), excluding ‘claims arising out of the WWII by countries which were at war with or were occupied by Germany during that war, and by nationals of such countries, against the Reich and agencies of the Reich’.

Secondly, the FR [pp. 81-82] examines the possibility of instituting proceedings before the ICJ. We must observe that the FR remains silent to the obvious precondition, namely that such an option can only be considered possible if (and if only) the Hellenic Republic espouses the ICCs through diplomatic protection, which remains a highly improbable choice. Even so, the FR rightly concludes that the temporal clauses attached to the declarations of both Greece and Germany pursuant to Article 36(2) of the ICJ’s Statute regarding the acceptance of the ICJ’s compulsory jurisdiction would certainly bar the World Court from hearing the merits of such a case. It is a mere truism that the ICJ’s power to administer justice is limited ratione temporis to acts and omissions creating the dispute in question that took place subsequent to the conclusion of the international instrument forming the basis of the Court’s jurisdiction. Both the PCIJ’s doctrine in the Phosphates in Morocco Case (1938) and the ICJ’s preliminary ruling in the Certain Property Case (2005) support the exclusion of the World Court’s jurisdiction vis-à-vis the Greco-German ICCs.

Furthermore, these findings endorse our previous hypothesis, according to which the FR’s authors suggested that the adoption of the Italian Constitutional Court’s line of thinking remains the only viable solution for the safeguarding of the interested individuals’ right to an effective remedy and the adjudication of their claims’ merits. To that aim, the Committee supported the abolition of the judicial stamp fee (8‰ of the claim’s monetary value) for all civil actions concerning ICCs against the former WWII Occupying Powers seeking declaratory relief (i.e. the judicial recognition of the legal existence and the precise amount of the claim), submitting a draft amendment.

The controversial issue of statutory limitations

The FR [p. 83] also suggests the adoption of a norm regarding the inalienable nature of both the criminal action and the civil claims arising from WWII atrocities through the ratification of either the 1968 UN Convention or the 1974 European Convention. It is important to highlight that in the past certain local prosecutors have declined to investigate criminal complaints against alleged war criminals considering the offences nullified due to the lapse of the 20-years limitation period prescribed for common felonies by Article 111(2) of the Hellenic Criminal Code. This is a highly disturbing development, since according to the lex fori, not distinguishing between international and domestic delicts, tort claims are also subject either to an exclusive 5-years limitation period, or –if the tort is also a criminal offence– to the limitation period prescribed by the penal legislation, which is usually much longer.

Some Conclusive Remarks

Eventually, the said fee was abolished for all relevant declaratory remedies with just a brief and quite vague reference to the Committee’s contribution in the explanatory memorandum of the repealing Law 4446/2016, while the issue of statutory limitations is still pending, despite a non-binding policy declaration of the governing coalition’s MPs (see here for an unofficial translation) supporting the inalienability of such claims. Given these developments, serious doubts can be expressed regarding the possibility of domestic courts getting the hint and adapting their jurisprudence to the Italian Constitutional Court’s line of argumentation. This option seems fairly unlikely given that –until something actually changes in the international juridical arena– the Margellos judgment will retain its erga omnes binding force (see here for the opinion of the Hellenic Government).

Ultimately, whether the Hellenic judicial authorities will produce something of a Sentenza 238/2014 à la greca remains to be seen. What we can admit, even prior to the judicial scrutiny of the FR’s proposed course of action, is that the report –however commendable in its aims and arguments– fails to spill out the simple, yet solid in terms of law, truth — namely that (unless something really changes in the international or municipal jurisprudence) no international or domestic tribunal will adjudicate such ICCs, based solely on the authority of a parliamentary organ and its legally non-binding suggestions.

[Author’s Note]

The ideas expressed in this post are not to be attributed, linked or otherwise associated with the Parliamentary Committee or any other public authority.

Individual Compensatory Claims for WWII Atrocities in the Final Report of the Hellenic Parliamentary Committee on Reparations: Anything New Under the Sun? Part I

by Dimitrios Kourtis

[Dimitrios Kourtis is a PhD cand. at the Aristotle University of Thessaloniki, Greece and former national expert to the Hellenic Parliamentary Committee on WWII Reparations. This is the first part of a two-part posting.] 

As already known, between the Hellenic Republic and Germany there is a long standing and unresolved dispute regarding WWII reparations arising –among others– from individual compensatory claims [ICCs] belonging to private persons (civilians) targeted with belligerent reprisals perpetrated within the forum’s jurisdiction and by the Reich’s military forces. Some seventy years after the war, the Final Report [FR] (see the official Greek version here) of a Parliamentary Committee with a mandate to investigate–inter alia– the legal basis and substance of the said ICCs came to pass. In the present post we will try to assess the Committee’s findings regarding the legal significance of ICCs and its attempt to utilize the FR to promote a solution of the dead-end caused by the ICJ’s 2012 ruling [Part I]. Finally, we will discuss the judicial remedies proposed by the FR and their legal pertinence [Part II].

Understanding the Role of the Committee

The Inter-party Parliamentary Committee for the Vindication of German Arrears [the Committee] is considered an intra-parliamentary ad hoc ancillary organ entrusted with the examination of a serious national issue of general interest on points of history, law, and policy. The Committee was constituted on December 4, 2015 and –unlike its predecessors, the 2014 and 2015 Reparation Committees– it finally managed to submit a report on July 27, 2016. The FR is considered legally non-binding and possesses an advisory status (Article 44(2) of the Standing Orders of the Hellenic Parliament) concerning the issues addressed by the majority and the dissenting opinion. It must be noted that all further references to the FR correspond to the majority opinion.

The FR’s Contribution to ICCs’ Vindication

The importance of the Committee’s FR for the clarification of Greece’s position vis-à-vis ICCs against Germany for atrocities committed during the Axis Occupation is paramount, given that the FR is the only policy document containing legal arguments and drafted by Hellenic authorities subsequent to the delivery of ICJ’s judgment in the 2012 Jurisdictional Immunities of the State Case, to which Greece successfully intervened.

Surprisingly enough, the FR [pp. 74-75] avoids all criticism against the Hellenic Special Supreme Court’s ruling in the Margellos Case (Judgment 6/2002). The said court is entrusted with the competence to solve erga omnes major disputes on points of law between the ordinary supreme courts or their chambers. In the aforementioned judgment the Special Court upheld the jurisdictional immunity of Germany, while overriding the normative hierarchy theory adopted by the plenary session of the Areios Pagos, the Supreme Court of Civil Cassation, in its Judgment 11/2000 concerning the Distomo Case. In a likewise manner, the FR approaches quite descriptively the ICJ’s majority opinion in the Jurisdictional Immunities Case, without reference to the merits of the judgment.

However, this conspicuous silence should be taken with the proverbial grain of salt. It is fairly evident that the Committee tried to instrumentalize its FR in order to provide the other constitutional authorities (the Government and –most certainly– the Judiciary) with somewhat of a saving (or escaping) clause in order to overcome the stagnation caused by the Margellos doctrine and the ICJ’s authoritative distinction between procedural conditions, such as the jurisdictional immunity of the defendant State, and the merits of the case, even if the contested affair involves grave violations of jus cogens norms.

The Sentenza 238/2014 à la greca Proposal and Hellenic Monism

To elaborate, the majority opinion took great pains [see FR, pp. 75-76] to highlight the similarities between the Hellenic and the Italian legal order, while endorsing unconditionally the position adopted by the Constitutional Court of Italy in its celebrated Sentenza 238/2014 (nullifying as unconstitutional a municipal law binding domestic courts to follow the ICJ’s ruling in the Jurisdictional Immunities Case). The FR seems to encourage the national courts to follow in the footsteps of the Italian Constitutional Court by urging the judiciary to play a certain part in the enforcement of Germany’s obligation to provide reparation; according to the FR’s own wording [p. 76]:

[a]fter more than seventy years since the perpetration of the Nazi-fascist atrocities in our country, the need for substantive justice remains topical. […] the Hellenic legal order should […] act as an enforcement branch of the fundamental rules of the international legal order.

It is important to point out that the FR adopts a monistic and Kelsenian approach towards the relationship between international and municipal law. Although doubtlessly supportive of the (strictly dualistic) arguments of the Italian Constitutional Court, the Committee understands the vindication of ICCs through domestic judicial mechanisms as a decentralized enforcement procedure upholding fundamental international norms. Implicitly, the Committee seems to embrace the so-called ‘theory of consubstantiality’, which advocates that even if nominally the domestic tribunals assert the application of municipal law, the only thing that actually matters is whether the content of the applicable norm effectuates a solution in accordance with international law.

The FR and jus cogens beyond Treaty Law

Additionally, the FR contributes greatly to the process of clarification of the Hellenic Republic’s position on the function of peremptory norms beyond treaty law. To the author’s knowledge, the Committee’s report appears to be the only Greek authoritative statement defining peremptory norms within the context of restorative justice and mass atrocity law. To the FR [p. 74, citing the author’s expert opinion], international peremptory law, on which the ICCs are founded, consists of

substantive principles and norms, which –by their nature, position, and function– are of primary importance for the survival of the international system, while their application, possessing an overruling effect against all contrary legal acts, is so fundamental that it cannot be simply entrusted to the goodwill of the interested States.

To sum up the FR deems the relevant ICCs existent on points of law and fact, recognizes as their legal basis norms of jus cogens beyond treaty law, and promotes the idea that some kind of Sentenza 238/2014 à la greca is highly needed in order to overcome the Jurisdictional Immunities and Margellos doctrines of judicial inertia. Even so, the Committee was mandated to compose and present a ‘roadmap’, i.e. a plan for action, regarding the claims falling within its investigatory competence. These roadmap proposals will be addressed next [Part II].

Summit of the Americas: Is There a Place for Venezuela?

by Ricardo Arredondo

[Ricardo Arredondo is Professor of Public International Law at the University of Buenos Aires.]

1. Introduction

In recent months, Latin-American countries have been actors and witnesses of a heated debate, as tend to be those in which Venezuela participates or is the subject of the discussion. This time the issue revolves around the eventual participation of this country in the next VIII Summit of the Americas, to be held in Lima, Peru on April 13 and 14, 2018. The central question is whether Peru has the right not to allow the participation of Venezuela in the Summit or if Venezuela has the right to participate, beyond the opinion of Peru and other countries in the region. To answer this question, it is necessary to analyze first what the legal nature of the Summit of the Americas process is and then to determine whether the summit is an ordinary or extraordinary meeting of the Organization of American States (OAS) or a multilateral meeting of States, in the type of conference diplomacy, where the consent of the receiving State is required.

2. Background

The Summits of the Americas are institutionalized gatherings of the 35 Heads of State and Government of the members of the Organization of American States (OAS) where leaders discuss common policy issues, affirm shared values and commit to concerted actions at the national and regional level to address continuing and new challenges faced in the Americas.

The decision to meet periodically and define the fundamental orientations of an Agenda for the Americas gave way to the institutionalization of the Summits, since it is a mechanism that allows accumulating experiences, building a common language and designing collective, national and multilateral mandates and actions. To strengthen this new inter-American “institutionality” and, particularly, its main political forum, the Organization of American States, the parties resolved to officially designate the OAS as the “Secretariat” of the Summits of the Americas process. This brought with it an expansion of the issues and actors of this process.

In the case of the Summits of the Americas, despite the similarity between the OAS Member States and the participants in the Summit process, the OAS merely acts as a support agency to the summit system. The OAS has the responsibility to operate as a record-keeping mechanism, “the institutional memory of the Summit Process”, and to provide technical support to the Summit Implementation Review Group (SIRG).

Therefore, it is possible to conclude that the legal nature of the Summit of the Americas process responds to the traditional model of diplomacy called special missions and it is not an ordinary or extraordinary meeting of the OAS. This distinction is fundamental because it allows us to move towards the discussion of the second question.

3. Does Venezuela have the right to participate in the VIII Summit of the Americas?

When Venezuela knew that the Government of Peru withdrew the invitation to Nicolas Maduro to participate in the VIII Summit, Venezuela replied with a note confirming that its president will attend the Summit of the Americas, affirming, inter alia, that Peru, in its capacity as the host State of the Summit, is only entitled to extend the courtesy of invitation to the dignitaries, organize the meeting and provide, in its capacity as host country, the logistical, security and safeguarding facilities for the participants, as well as guarantee the respective immunities and privileges and lead the negotiations, in its capacity as Chairman of the Review Group of the Implementation of Summits (SIRG). As a basis for its position, it cited the headquarters agreement between Peru and OAS of July 20, 2017. Venezuela also sustains that “the power to decide on the participation of a member state and founder in the meetings of the Summit of the Americas … is not attributed in any way to the Republic of Peru, or to any other State”. However, as we will see below, this is not the case.

Summit diplomacy is governed, in a supplementary manner, by the special missions rules, established in the Convention on Special Missions (CSM) (signed on 12/8/1969, entry into force on 6/21/1985). In effect, the CSM norms have a dispositive character, i.e, they will be applied to the extent that the States have not agreed to the contrary through customary law or through an agreement. A “special mission” is s a temporary mission, representing the State, which is sent by one State to another one with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task (Article 1, a]).

In accordance with the traditional principles governing diplomatic relations, the sending of a mission requires the consent of the receiving State (in this case, Peru), which can be obtained through diplomatic channels or by “another agreed or mutually acceptable channel” (Article 2). This sending does not necessarily include bilateralism. The mission can be sent to two or more States, two or more States can send a common mission or missions to a third State (arts. 4 to 6).

The receiving State retains certain capacities that are reminiscent of those conferred on the diplomatic mission. Thus, it can refuse to accept a special mission “of a size that is not considered by it to be reasonable, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission; likewise, it may refuse to accept any person as a member without expressing the reasons for its decision (art. 8). Similarly, and at any time, it may inform the sending State that any representative of the State or member of the diplomatic staff is persona non grata or that any other member of the staff of the mission is not acceptable, with the consequent obligation of the sending State to proceed to its withdrawal and termination of its functions. Otherwise, the receiving State may refuse to continue recognizing it as a member of the mission in question (art. 12, sections 1 and 2).

In the case sub examine, neither the headquarters agreement between Peru and the OAS, nor any other norm of the hemispheric system contain specific provisions referring to this type of situation. However, Peru has indicated that the Declaration of Quebec contains a clause that provides that:

“We acknowledge that the values and practices of democracy are fundamental to the advancement of all our objectives. The maintenance and strengthening of the rule of law and strict respect for the democratic system are, at the same time, a goal and a shared commitment and are an essential condition of our presence at this and future Summits. Consequently, any unconstitutional alteration or interruption of the democratic order in a state of the Hemisphere constitutes an insurmountable obstacle to the participation of that state’s government in the Summit of the Americas process. Having due regard for existing hemispheric, regional and sub-regional mechanisms, we agree to conduct consultations in the event of a disruption of the democratic system of a country that participates in the Summit process”.

Declarations adopted in the Summit of the Americas process do not have the nature of norms of international law in the strict sense, although, according to Sanahuja, they would fall within the scope of the so-called soft law, without direct legal effects but with visible influence on policies and domestic legislation. By reflecting aspirational goals, more than legal obligations, they have less effectiveness, but in return it is possible their acceptance by the States. The non-binding nature of these norms, however, does not make them irrelevant and in fact they have discernible and significant effects both at institutional and material levels. Furthermore, Mangas Martín recalls that if respect for democracy and human rights were a “democratic basis for cooperation”, a further step could be taken to transform it into a provision essential to the accomplishment of the object or purpose of the treaty that could open a way to invoke art. 60 of the Vienna Convention on the Law of Treaties, that is, to invoke the violation of human rights and democracy as a cause of termination or suspension of the treaty.

Venezuela further argues that, under Article VII of the Headquarters Agreement between Peru and the OAS of July 20, 2017, the Government of Peru has agreed to grant and recognize the OAS and its organs, the delegations of the OAS member states … the privileges and immunities necessary for the independent performance of their functions during the SIRG and Eighth Summit meetings, therefore, Peru could not oppose to the participation of a delegation from Venezuela. However, this is not the case, from a simple logical sequence it can be inferred that privileges and immunities can only be recognized to those participants who have obtained the consent of the receiving State to attend the summit. Consequently, if a State is not granted that consent, it cannot enjoy any privileges and immunities.

4. Conclusions

In summary, Peru, as receiving State, is fully entitled not to invite or consent to the presence of a delegation from Venezuela to the Summit of the Americas, either by the traditional rules that regulate this type of missions or through the mechanism envisaged in the Quebec Declaration mentioned above. Article VII of the Headquarters Agreement between Peru and the OAS of July 20, 2017, does not contradict these general principles.

Hence, the Minister of Foreign Affairs of Peru, Cayetana Aljovín, said that her country, as the host State of the continental meeting, has the faculty, under international law, to invite and cancel the invitation extended to a Head of State or Government; and, if this official is responsible of an alteration or interruption of the democratic order in a state of the Hemisphere, Peru can do it under the Declaration of Quebec. This last position was also expressly supported by the so-called Lima Group in point 6 of its Declaration of January 23, 2018.

For reasons above mentioned, the note from the Government of Venezuela confirming that its president Nicolás Maduro will attend the Summit of the Americas, even though the invitation was withdrawn, is without foundation. Under the present circumstances in this country, there is no place for Venezuela at this Summit of the Americas.

The Latest on Our Global War

by Deborah Pearlstein

The Trump Administration last week released its first “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations.” The report continues a practice initiated at the end of the Obama Administration and subsequently codified into requirement by Congress by which the Administration makes clear (among other things) where and under what legal authorities the United States is using military force, and how key domestic and international law rules apply to practices like targeting and detention. The publicly available Trump version of the report is far sparser than the Obama Administration report; this report seems to leave some essential points to the classified annex that accompanies it. Still, it remains highly useful as an official statement of the U.S. basis for using force (including, for example, attacks on Syrian government forces “to counter immediate threats” to partner forces of the United States there). A summary of the report’s contents is here.

There are several items of note in the report, not least of which is a troubling return to the bad old days in which the United States declines publicly to name which terrorist groups we consider ourselves at war with – identifying them here only in the classified appendix. (The full text of the report regarding the scope of the 2001 AUMF is as follows: “The classified annex contains more information on the application of the Authorization for Use of Military Force (2001 AUMF) to particular groups and individuals.”)

It is, however, among the report’s least surprising positions that should be seen as most significant: like its past two predecessors, the Trump Administration has embraced the notion that the United States is engaged in a singular, global non-international armed conflict against a shifting set of terrorist groups. This idea – which, after 17 years of U.S. efforts, has yet to be embraced by any other country in the world – continues to have a profound, and in many ways, warping effect on the law of armed conflict a/k/a international humanitarian law (IHL). Among many such effects: a growing group of legal scholars today urge that we reconsider the utility of the distinction (at the heart of IHL) between violence that counts as an “armed conflict” and violence that doesn’t. Critics raise a range of concerns, with the U.S. post-9/11 conflicts typically Exhibit A: the line dividing “armed conflict” and not is no longer clear or stable enough to provide meaningful guidance; current definitions may compromise humanitarian interests, prospects for criminal justice or both; perhaps most important, the “armed conflict” classification no longer reflects current moral, political, or strategic sensibilities about the role of lethal force in an age in which global threats have changed. I critiqued some of these claims to an extent in a review of Rosa Brooks’ book, How Everything Became War and the Military Became Everything: Tales from the Pentagon, out in AJIL late last year. I take them on in far greater detail in a new piece here (forthcoming Va. J. Int’l L. 2018). Among other things, I argue, it is not at all apparent that changing the terms on which we permit the use of lethal force will achieve the goals IHL’s current critics seem to seek.

But the Trump report – which, with little fanfare and in an otherwise rapidly changing world, embraces the legal construct that has framed and in many respects guided U.S. military operations for the better part of 20 years – underscores what should be an even more pressing concern. As the list of countries in which the U.S. is engaged in hostilities grows (Niger has joined the list since last report), and the purpose of U.S. intervention in some of these places blurs (the report reminds us that while ISIS has lost 98% of the territory it once held in Iraq and Syria, and will soon have lost 100%, we’re planning to keep bombing in Syria after that nonetheless), we’ve increasingly replaced a difficult conversation about the adequacy of international security policy with an easier (if ultimately misguided) debate about the adequacy of international security law. The problems to which “armed conflict” classification critics rightly attend – problems of interpretive uncertainty, law compliance, and social change – are familiar dilemmas in all legal systems. The problem of fighting a set of enemies we’re not willing publicly to name – that’s new.

Drone Swarming and the Explosive Remnants of War

by Maziar Homayounnejad

[Maziar Homayounnejad is currently a PhD researcher at the Dickson Poon School of Law, King’s College London. His research primarily focuses on law of armed conflict aspects of autonomous weapon systems, with a secondary focus on arms control and non-proliferation.]

On January 5th of this year, a Russian air base and a nearby naval base were attacked by a swarm of 13 makeshift drones carrying explosives. This was the first known swarm attack to take place in a real battlefield and, fortunately for Russian forces, it failed: according to the Ministry of Defence, seven were shot down, while the remaining six were electronically intercepted. That said, the audacious attack has revived talks of drone swarming becoming both a future terrorist threat and a new style of warfare for traditional armed forces. Inevitably, any trend that sees more munitions deployed in the same space will raise questions on the possible humanitarian effects.

Drone Swarming in Context

Despite all the attention focused on the January attack, a serious discussion had already emerged on the use of battlefield drone swarming. Arguably, the current debate began in a seminal report by Arquilla and Ronfeldt in 2000, which pointed out that a) swarming will be an evolution of the centuries-old military doctrine of mass and maneuver, b) this seemingly amorphous tactic will in fact be “a deliberately structured, coordinated, strategic way to strike from all directions”, and c) advances in sensor and communications technologies will provide the requisite connectivity to make all this possible (as will be seen below, these principles have all stood the test of time). Accordingly, it was thought that drone swarming will become an irresistible option for both professional militaries and non-State actors alike, as commercial sector electronics advance and miniaturize.

Building on this, in a 2014 report entitled ‘The Coming Swarm’, Paul Scharre contended that drone swarming will provide a viable solution to many of the challenges faced by the US military. The problem, he argued, is that US defense capabilities may weaken in relative terms through a combination of a) the improved long-distance precision targeting capabilities of near-peer adversaries, and b) exponential rises in the cost of large military aircraft and ships, while US defense budgets only grow linearly (one of “Augustine’s Laws”). This would leave a dwindling attack capability vulnerable to easy defeat by a more accurate, precise and numerous adversary. On the other hand, by reducing the size and increasing the quantity of combat assets, US forces will benefit from “Lanchester’s Square Law.” This asserts that “twice as many units in the fight actually translates to a fourfold increase in combat power for units with aimed-fire weapons”, because while US forces can ‘double up’ on attacking enemy units, the other side can only attack half the US forces at any one time (see summary in Report Preview). The implication was clear: swarming micro-drones will become a game-changer, and will be financially viable in the face of (then) defense sequestration.

Subsequently, and from a slightly different angle, David Hambling argued in Swarm Troopers that the abundance of cheap, powerful and rapidly-advancing dual-use components from the mobile phone industry will make micro-drones and swarming capabilities easily available to non-State actors. The stark reality, Hambling argued, is that States will have to choose between a $100m fighter jet, which will be vulnerable to a single enemy strike, or 50,000 micro-drones, which will offer unparalleled resilience and attack capability when facing enemy fire. This is because “if one drone gets taken out, the others autonomously change their behavior to complete the mission.” Namely, while a single enemy strike can down the entire $100m jet, the same will usually only destroy one (or a few) micro-drones, while the overall swarm system remains intact and can carry on in battle. Again, we see suggestions that drone swarming will become an irresistible option for professional militaries; partly because of the options open to non-State actors, but with the added result that the US and near-peer adversaries like China will enter a swarm race, with potentially strategic consequences.

Pinning Down the True Nature of Drone Swarming

To be sure, the January attack on the two Russian bases was not a ‘true’ example of swarming, as each of the 13 drones appeared to be operating independently, albeit via GPS and in close proximity. As Scharre points out, true swarms will not only bring “greater mass”, but also “coordination, intelligence and speed to the battlefield” for smart maneuver (pages 5, 10 and 12 of The Coming Swarm). This suggests both a quantitative (sheer numbers) and a qualitative (collaborative algorithms) dimension. Accordingly, the most effective drone swarms will not only overwhelm and saturate enemy defenses, but will also outsmart them with “cooperative behavior among distributed elements that give rise to a coherent, intelligent whole” (page 10). Examples include autonomous regrouping after an attack, as mentioned above; or confusion tactics, such as micro-drones autonomously disaggregating to avoid detection, before reaggregating at the last moment to take the enemy by surprise.

The January attack displayed no such element, but we may expect that weapons designers will study how and why this ‘Model-T’ swarm was defeated in order to inform the development of their own collaborative algorithms for future deployment. At the very least, it is possible that the January attack inspired another swarm attack the following month by Houthi forces against the United Arab Emirates. While the status of this most recent attack is unclear, it does appear to have been more carefully executed, and it may indicate a new trend in armed conflict, against which US ground forces are currently ill-equipped to defend.

So far, only explosive micro-drones have been discussed. In reality, swarms may be developed to undertake a variety of roles, including intelligence, surveillance and reconnaissance and/or electronic warfare. However, it is swarming for kinetic attack that will pose the greatest potential humanitarian risk; those designed for offensive land attack (as opposed to naval defenses), even more so.

The ERW Aspect of Drone Swarming, and Ways to Mitigate It

Ultimately, the aim of any future drone swarm is to outsmart, saturate and overwhelm the enemy, such that even a sustained defensive attack will not prevent a few ‘leakers’ from getting through to kill, destroy or neutralize their target. This leads to two distinct but related humanitarian problems.

Firstly, where a large number of non-leakers are inevitably shot down, they will remain on former battlefields; should they fail to explode as intended, these micro-drones will very likely become explosive remnants of war (ERW), giving rise to post-conflict civilian risks. Potentially aggravating the situation is the possibility of an ‘arms race’, as noted above. As Lachow explains (at page 100), this may see ever-increasing swarm sizes being met with stronger defensive systems and increasingly large counter-swarms, leading to yet greater offensive swarms, more non-leakers being shot down, and so on. The result would arguably be a heightening of the ERW problem.

Secondly, there is the problem of the physical appearance of the micro-drones, which can bear a striking resemblance to toy airplanes. As noted in an earlier Article 36 report (at pages 10 and 44), the size, shape and color of munition remnants can make them attractive to children, who unwittingly pick them up in the expectation of playing with a toy. Downed micro-drones, particularly those that are brightly-colored, and of approximately the same size and appearance as toy airplanes, will be highly alluring to children, who may find that the apparent toy leaves them with life-changing injury.

Arguably, these post-conflict risks merit closer attention before drone swarming is deployed in significant numbers.

In a recent paper published by the Transnational Law Institute at King’s College London, I examine the drone swarming ERW problem, and provide a legal commentary of the potential application of three existing instruments that may help to address it: Protocol V of the Convention on Certain Conventional Weapons, the Convention on Cluster Munitions, and Amended Protocol II.

Protocol V (pages 22-47 of the paper) specifically addresses ERW, and it creates a number of obligations for States and non-State parties alike, though these are heavily caveated. For example:

  • Article 3, the centerpiece of the Protocol, requires parties in control of territory to mark and clear, remove or destroy ERW as soon as feasible after the cessation of hostilities. Parties not in control of territory shall, where feasible, provide technical, financial, material or human resource assistance to facilitate the marking and clearing, removal or destruction of ERW.
  • Article 4 requires that before and during the deployment of munitions that may become ERW, parties shall to the maximum extent possible and as far as practicable record and retain information on the use of such munitions, to facilitate the discharge of Article 3 obligations, amongst others. After the use of such munitions, parties shall, without delay after the cessation of active hostilities but as far as practicable, subject to their legitimate security interests, make available relevant information to the party or parties in control of the ERW-affected area.
  • Article 9 encourages States to take ‘generic preventive measures’ aimed at increasing munitions reliability, to maximize the chance that they will explode as intended, thereby minimizing the ERW risk. Such measures are largely based on the Technical Annex to the Protocol, which itself contains voluntary measures.

There are numerous other measures, the provisions of which are impressively comprehensive; yet, it is recognized that these may risk becoming both labor-intensive and financially burdensome, if mandatory. Consequently, virtually all Protocol V provisions are heavily caveated, as indicated by the italics in the above bullet points. Sadly, this may provide a ‘get out clause’ for States and other parties that do not wish to act in good faith. On the other hand, such caveats may be interpreted restrictively in the case of swarming munitions, in light of their expected technical features. Unlike ‘dumb’ munitions, micro-drones are likely to possess a range of ‘smart’ features, such as GPS, advanced electro-optical/infrared sensors, radio communication links, and (potentially) integrated diagnostics (see pages 15-19 of the paper). Collectively, these will do much of the ‘heavy lifting’ of data recording, retention and transmission, such that they remove a significant weak link, which has so far discouraged States from applying Protocol V more expansively.

Of course, some of these technical features will add to production costs, thus they may need to be legally mandated. For this reason, there are possible transplants that may be entertained from the Convention on Cluster Munitions (see the Article 2(2)(c) technical criteria) and Amended Protocol II (see Article 4 and Technical Annex). These are examined at pages 47-65 of the paper, where it is argued that they provide a possible basis to require integrated diagnostics, as a corollary to self-destruction and self-deactivation features, and munition detectability for easier clearance in a post-conflict context.

The full paper, Autonomous Weapon Systems, Drone Swarming and the Explosive Remnants of War, can be downloaded on open access from SSRN.

Symposium: Wrestling with the Long Shadow of European Transplants of International Courts in the Third World

by James Gathii

[James Thuo Gathii is the Wing-Tat Lee Chair in International Law and Professor of Law at Loyola University Chicago School of Law.]

Transplanting International Courts is an important book. It invites us to expand and enrich our studies of international courts to those in the developing world. In doing so, Karen Alter and Laurence Helfer directly address what they call the “Europe is unique” thesis. This is the view that it is impossible to have effective international adjudication in “far more diverse and less hospitable environments” than Europe. (page 264) Yet, they do not overstate this point. After all, the Andean Tribunal of Justice has been effective in only one issue area, intellectual property rights. Unlike the bold, purposive and consequential decisions of the European Court of Justice, the decisions of the Andean Tribunal of Justice on intellectual property rights are more restrained, predicated on formalist reasoning and “highly repetitive, even formulaic.” (page 276) In so doing, the Andean Tribunal has avoided direct confrontation between the Tribunal and Andean governments whose political leaders have the last word on Andean law. (page 146)

So striking is the authority of the Andean Tribunal of Justice over intellectual property rights, Alter and Helfer tell us, that it has helped the Andean Community to hold-off American pharmaceutical companies that have sought more extensive intellectual property protections such as data exclusivity, a ban on ‘pipeline’ patents and second—use patents. In so doing, the Andean Tribunal of Justice has played a central role in preventing Andean states from defecting “from regional IP legislation and adopt strong IP protection standards.” (page 19) It has of course been helpful that Andean governments have for the most part had a common interest in a uniform policy for trademarks and patents. Further, Andean rules in these areas, unlike under other integration objectives, are detailed and precise. (pages 139-140). Andean domestic IP agencies and national courts benefitted from the Andean Tribunals rulings, which they accept to improve their decision-making and to insulate them from domestic politics. (page 127).

Alter and Helfer draw two key lessons from the Andean experience. First, that we should not assume that international courts will always seek to expansively construe their ‘authority and influence.’ Second, they argue that by “scrupulously adhering to their delegated powers,” international courts in ‘politically and legally inhospitable environments’ can help them survive long enough to gain constituencies who will make use of them. (page 16)

What then are the implications of these lessons in this rich study of the Andean Tribunal of Justice for the ‘effectiveness of international court more generally’? (page 18) Alter and Helfer argue that the Andean Tribunal’s experience may have more in common with newer international courts than with their European counterparts. (page 47) The Andean experience they argue, shows that “transplanting supranational laws and institutions is insufficient in itself to stimulate local demand for those laws and institutions.” (page 45) This is particularly so in developing country contexts where integration is shaped by significant turmoil in domestic politics.

I want to push the argument that Alter and Helfer make about the Andean Tribunal of Justice having more in common with international courts outside Europe than with those in Europe. In other words, there is an even more radical implication that emerges if Europe is dethroned as the point of reference for non-European international courts. Eurocentric analysis of international courts assumes that non-European international courts are reproductions of European courts with an adjustment here or there to ensure that they are a fit with local conditions. Such a view does not take seriously the agency of non-European actors. It assumes the role of these non-European actors is to simply adapt these European-style courts to their non-European contexts. From this mistaken view, when these non-European courts do not function like their European copies, they are declared failures.

I therefore read Alter and Helfer’s book as an invitation to scholars of non-European international courts not to treat their non-European contexts as merely contexts of reception, but as Diego Lopez Medina persuasively argues as contexts of production. From this perspective, we should not be surprised if what we see in these non-European international courts are, what from a Eurocentric perspective might look like unfaithful copies. Yet, to characterize these non-European courts and their decisions as misinterpretations or mis-readings, is to misunderstand them and their decisions. What seem as mis-readings and misinterpretations from a Eurocentric perspective, are rather the conscious and intentional outcomes of their non-European judges and litigants.

Let me give an example of what a Eurocentric perspective may regard as a misreading or misinterpretation by non-European international courts. This example comes from the East African Court of Justice in a case where the applicants sought to stop the government of Tanzania from building a road across the Serengeti, a UNESCO world heritage site. By way of a very brief background, although the East African Court of Justice was created to decide trade cases, it has redeployed itself to deciding human rights cases even though it does not have a treaty mandate to do so. Thus, when it was invited to decide a question relating to the environment, the government of Tanzania strenuously argued that it should not do so.

Once the First Instance Division decided it had jurisdiction, what it did next was striking. Basing its decision on a treaty provision that serves the equivalent role as the rule of systemic integration under Article 31(3)(c) of the Vienna Convention of the Law of Treaties, the Court concluded that East African Community treaties should not be interpreted in isolation of non-East African Community international environmental treaties. Thus, the Court brought on board the African Convention on Conservation of Nature and Natural Resources, the Rio Declaration, the Stockholm Declaration, and the U.N. Convention on Biodiversity. In so doing, the East African Court of Justice recognized environmental conservation must be seen in the broader economic, social and cultural context captured in this array of additional treaty regimes. This willingness to look beyond one regime is notable considering the sheer difficulty that other international judicial bodies such as those of the World Trade Organization, (WTO), have had in bringing non-WTO treaties as sources of WTO law. In so doing, the East African Court of Justice decided not to construe its jurisdictional remit narrowly as a specialist court within a single self-contained regime.

The Appellate Division of the East African Court of Justice confirmed that it was not improper for the First Instance Division to rely on non-East African Community treaties in its decision. A discussion of this case can quickly veer into considering whether the murky decision of the Appellate Division that did not lift the permanent injunction against Tanzania indicated that the Court feared backlash and non-compliance. That discussion has its utility. However, a choice to foreground a compliance analysis may come at the cost of pursuing the situational and localized circumstances that inform why such cases are brought to these courts in the first place.

For example, the environmentalists who brought the suit objecting to the building of the road through the Serengeti saw the Court as one venue in a multi-dimensional and multi-pronged strategy that involved other venues and pressure points. That multi-pronged strategy that has had its successes and challenges has continued long after the case ended. For these activists, the case was one part of a strategy of galvanizing an international alliance of conservationists to prevail upon the Tanzanian government. My point therefore is that studying non-European courts, and perhaps such courts elsewhere, requires us to put their users and their broader strategies at the center of our analysis.

Foregrounding compliance presupposes litigation is being pursued in these non-European courts because litigants see them as primary change agents. Such an assumption is based on the type of structural reform litigation in North America and Europe. It is not an assumption that those who use international courts in developing countries proceed from. As the Serengeti example noted above shows, whether or not the case is won, it becomes a focal point to galvanize, publicize and mobilize organizational support as well as fund-raising. When a case is lost, litigants use it to appeal to sympathetic individuals and groups by highlighting to the injustices they face. As such these non-European international courts are not independent actors isolated from other sites of political, social and legal contestation.

To conclude, I would emphasize the degree of unfaithful copies of European courts in the non-European world will vary. Further, as a recent study of the preference for non-litigious dispute settlement in the ASEAN investment context has persuasively argued, we should not assume that dispute settlement models that do not fit the European or western experience are flawed or indeed failures, but rather are independent and legitimate forms of legalization.

Alter and Helfer do in fact acknowledge that international courts in developing countries “deploy strategies that diverge from those of European tribunals in response to the distinctive legal and political contexts that these emerging courts face.” (page 274) I have argued that it is misleading to assume that cases filed in international courts in developing countries are primarily and narrowly targeted at legal reform, rather than to satisfy a range of other imperatives that activists are pursing. That is why Alter and Helfer’s conclusion that we “should look for evidence of judicial influence beyond case-specific compliance,” (page 277) is a very welcome one.

Symposium: Transplanting International Courts–An Andean Tribunal Judge’s Perspective

by Luis Diez Canseco Nunez

[Luis Diez Canseco Nùñez served as a judge and then President of the Andean Tribunal of Justice, ending his tenure in 2017.]

Alter and Helfer’s book Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice constitutes an important contribution to the study of the international dispute settlement system. It honors me, as a former Judge and President of ATJ, that two prestigious researchers have devoted their time to evaluate our court and its work. I want to highlight my absolute agreement with their analysis and conclusions and offer sincere congratulations!

But there are things that an academic book, no matter how laudatory, cannot capture. I will use my contribution to highlight some missing elements, including some new developments that from the perspective of a judge are significant.

Being an international judge is a certainly an honor, but also a challenge. Representatives of governments often erroneously assume that our position on a case should be aligned with that of our respective countries. This misperception has its origins in two factors. Firstly, the structure of the Andean Tribunal, which includes one judge for each Member Country. Secondly, some judges have backgrounds as diplomats, senior government officials, and even connections that make them close to a government.

Before my election, several colleagues asked me why I wanted to become a Judge at the ATJ. They suggested that the appointment was for people either aspiring for an international legal career or seeking a golden retreat into retirement. Others suggested that it was not worth joining an entity that was in the course of disappearing and in perpetual crisis (for the reasons that Alter and Helfer discuss in their book, namely the disagreement among member states over the direction of economic and trade policy). Indeed, I later participated in several meetings in which government representatives spoke out loud about the need to restructure the Andean conflict resolution system, conversations in which some officials actually suggested abolishing the ATJ and instead recreating the panel system used by the WTO. Those who questioned why I would want to be an ATJ judge also noted what Alter and Helfer discuss: the ATJ is a cut in paste institution that merely replicates previous decisions, particularly with respect to intellectual property. The job would therefore, they suggested, lack creativity.

These comments were precisely the reason why I decided to advance my candidacy, and if elected, to try to make a difference. It was a sort of new challenge in my life. I wanted the ATJ to be more externally engaged, yet to also issue judgments as quick as possible. Moreover, I wanted the decisions to be more precise and friendly to those who read them, and I wanted to promote more scrutiny and awareness. Working within, first as a judge and then as President of the Tribunal, I crafted solutions for some procedural issues such as tied votes and allowing access to administrative bodies of Member Countries to request for Preliminary Rulings. A number of these changes are mentioned by Alter and Helfer, who express surprise that reforms and expansion of the caseload and jurisdiction came despite crises in the Andean Community. The answer is simple: innovative judges may be focused on the institution in which they work, rather than the larger never ending political crisis that surrounds the institution.

For judges, procedural changes are significant. I want to briefly discuss two changes that from the perspective of the judge are important in adjudication politics. Both of these receive scant attention in an analysis as comprehensive and encompassing as that of Transplanting International Courts.

Dissenting opinions

For many lawyers, dissenting opinions are common practice. But this wasn’t the case for the ATJ. By contrast, Andean judges believed that the lack of dissenting opinions or, alternatively, the lack of knowledge about judicial disagreements, helped the Tribunal send a message that was consolidated and strong.

ATJ decisions had traditionally been written by a single judge and discussed and signed by all, even though dissent existed in the form of unacknowledged votes against the ruling. This format hid the many points of dissent we would debate in deliberations, and thus I believed that the formality of unanimous rulings limited scrutiny, debate and feedback. As a prelude to creating dissenting opinions, we needed to take a number of interim actions. First, we needed to restructure the format of the decision, highlighting the matters under controversy. Second, we had to make public who was the Judge responsible for drafting the decision. Third, we had to decide to list the judges who voted in favor and if it was the case, to indicate who disagreed. Fourth, we needed to allow the disagreeing judge to publish is dissenting vote and the bases of their disagreement. Finally, we needed to allow the parties to access the dissenting decision. This sort of step-by-step detail–each of which is significant– is, quite understandably, lost in the type of analysis Alter and Helfer undertake.

During my tenure, we discussed the possibility of publishing dissenting opinions as an annex to the judgement of the majority; but the rules of the Court didn´t allowed for this. Very recently, by Agreement 09/2017 published on 29 November 2017 in the Official Gazette of the Andean Community, the ATJ agreed to issue an Information note which indicates that, once the final decision has been published, persons concerned may request access to dissenting opinions. This is still far from public dissenting opinions, as one finds in the ICJ. I provide this detail so that observers can see the many steps needed for change.

Oral Hearings

A second change that is important for judges is the decision to allow Oral Hearings for Preliminary Rulings cases. The Andean regulations expressly refer to the possibility of oral hearings in the framework of the Omission, Nullification and Noncompliance procedures; but rule of procedure is silent with respect to Preliminary Rulings, neither authorizing nor prohibiting oral hearings.

In my opinion, in cases having particular complexity, impact or novelty, an open oral phase or the possibility of affected actors to summit briefs to the ATJ, will help to ensure that the ATJ can entertain new points of view that might not have occurred to them. In this perspective, it is important to recall that the law and the circumstances surrounding particular cases are in a constant evolution. The law can´t be petrify.

Recently, by Agreement 08/2017 published in the Official Gazette of the Andean Community, the ATJ adopted a Regulation that normalizes various aspects regarding the nature of the Preliminary Rulings, which has codified a number of the internal procedural changes implemented during the last years. These changes are partly responsible for the expanded the number of Preliminary Rulings, something that Alter and Helfer observe but do not explain.

Article 9 of this new agreement refers to ‘reports written or oral.’ This small change opens the door for convening oral hearings in exceptional Preliminary Ruling cases. While this change is significant, the new language fails to incorporate the possibility for the parties in the process, who will be directly affected by the decision, to provide their points of view and be questioned by the judges. One thus sees the slow hand of reform at work!

These subtle changes, which may be imperceptible to those outside of the Tribunal, are important to the process of building the Tribunal’s reputation for sound judicial decision-making. While I understand why Alter and Helfer do not investigate these types of changes, a more judge-centric perspective might bring to light a different set of factors that shape the law and politics of the Andean Tribunal of Justice.

Symposium: Alter and Helfer’s Liberal Theory of International Courts–Interlocutors, Context, Backlash

by Mark Pollack

[Mark Pollack is Professor of Political Science and Law, Director of Global Studies, and Jean Monnet Chair at Temple University in Philadelphia.]

Reading Karen Alter and Larry Helfer’s Transplanting International Courts took me back, involuntarily, to graduate school, and more specifically to a moment of (in retrospect) misplaced outrage during my first-year International Relations Field Seminar. The professor in that seminar, Robert Keohane, was telling the assembled first-year students that, when it came time to write our dissertations, we should not select our cases for their inherent interest or normative importance. Instead, scholars should select cases for the “leverage” they provide in producing generalizable findings about international politics. As a student who had just fallen hard for the then-resurgent European Union, I insisted on the value of studying such a grand experiment, even if it was sui generis, since it affected the lives of 300 million European citizens. Real-world significance, I argued, beat analytic leverage as a criterion for case selection, any day.

Alter and Helfer’s study of the Andean Tribunal of Justice (ATJ) demonstrates clearly why I was wrong, and Keohane right, about case selection. To be sure, both Alter and Helfer made the same initial choice in their careers that I did, studying powerful European courts that issued thousands of decisions and meaningfully impacted the lives of millions of European citizens. In their new book, however, Alter and Helfer pivot to the ATJ, a rather specialized international court (IC) that serves a small community of four developing states, issues more than 90 percent of its rulings in the narrow area of intellectual property (IP) law, and whose judges have produce a jurisprudence that is, by the authors’ own characterization, restrained, formalist, and deferential to the views of the Andean Pact’s member governments (15).

And yet, Alter and Helfer, by focusing on the ATJ, do indeed gain leverage on a wide variety of important questions about international courts, including and especially the question of how legal transplants – in this case, one of the eleven regional courts modeled on the European Court of Justice (ECJ) – operate in practice. Taken together, they argue, the ECJ and ATJ represent a natural experiment, with similarly (though not identically) structured courts placed in very different political contexts, allowing the authors to assess the impact of contextual factors on their operation. Beyond the comparison with Europe, moreover, Alter and Helfer argue that, if we want to understand the workings of ICs outside the rule-of-law hothouse of Europe, we could do far worse than to study the ATJ, which has taken root in a challenging political and legal context that is characteristic of many of the ECJ’s copies around the world. The rewards of reading Alter and Helfer’s book, therefore, come not from learning about an esoteric island of IP law, but precisely from gaining leverage from the ECJ-ATJ comparison and drawing inferences about how ICs operate in challenging climates.

In Isaiah Berlin’s canonical distinction between foxes (who know many things) and hedgehogs (who know one big thing), Alter and Helfer are foxes, and their study of the ATJ yields insights into a wide variety of questions. Nevertheless, there is a theoretical core to Transplanting International Courts, which I would describe as a liberal, contextual approach to ICs. This approach locates courts in their international and especially domestic contexts, and explores how ICs interact, not only with state governments (which Alter and Helfer believe have been overemphasized in previous scholarship), but also and especially with other supranational and domestic actors. Given the wide range of topics they address, any review of their book must be selective, and I select just three themes – interlocutors, context, and backlash – as the core value-added contributions of the volume over existing scholarship, including Alter’s and Helfer’s previous work.

Interlocutors – If You Can Find Them

Perhaps the central focus of the liberal approach to international courts, which informs Helfer and Slaughter’s 1997 article on supranational adjudication, Alter’s 2001 book on the ECJ, and her 2014 book The New Terrain of International Law, is the relationships than an IC cultivates with its various supranational and subnational interlocutors, including regional secretariats, national courts, government agencies, individual litigants, and jurist advocacy networks. These “compliance partners,” it is argued, are fundamental to the success of any IC, and Transplanting International Courts continues this focus on interlocutors as the sine qua non of effective international adjudication. Strikingly, however, Alter and Helfer find that the usual-suspect interlocutors, namely national courts, were and are resistant to sending preliminary references to the ATJ, perceiving the Tribunal as a potential threat to their own position. In this context, the ATJ has fallen back on de facto partnerships with other interlocutors, including and especially national IP agencies, which the Tribunal strategically allowed to submit preliminary references. To the extent that the ATJ has succeeded in creating and sustaining an island of effective supranational IP jurisdiction, Alter and Helfer argue, that success can be attributed largely to the interlocutors who have activated and supported the Tribunal.

Context: Facilitating or Frustrating

Alter and Helfer’s liberal analysis, however, extends beyond their focus on courts’ ties to domestic interlocutors. Also present in Transplanting International Courts is a keen awareness of how differences in political and legal context can fundamentally shape the effectiveness of any IC. The importance of context is particularly salient in Chapter 8 of the book, “Nature or Nurture,” which argues that the differences between the activist, teleological jurisprudence of the ECJ and the more restrained and deferential decisions of the ATJ can be explained by the more propitious legal and political context of the EU, which “nurtured” the ECJ in a way that was at best loosely approximated for the ATJ in the issue-area of IP law. Indeed, Alter and Helfer concede in their conclusion that the success of the ATJ is only partial, and that a difficult context can frustrate even the choreographed actions of a strategic court. The “glass-half-full” account of the ATJ, they write, focuses on how the Tribunal secured a “toehold” in a narrow issue area (IP law) and with one set of interlocutors (domestic IP agencies), creating an island of effective international adjudication (264). “The glass-half-empty counterpoint,” by contrast, “is reflected in the ATJ’s inability to mobilize a jurist advocacy movement… and in the limited impacts the Tribunal has had on Andean law beyond the field of IP” (264).

Stepping back from the specifics of the ATJ case, Alter and Helfer, in a remarkable passage at the end of the book, depart from much of their earlier optimism about the generalizability of the European experience to other regions:

If the ATJ is the most successful example of an international court in a developing country context, the significant limits of its success should instill a sense of caution in those who hope that such courts will transform the legal and political landscape. The most that an international court can do, we argue, is to help states individually and collectively adhere to legal rules they have imposed upon themselves. (282)

In this context of reduced expectations, the famously formalist and deferential jurisprudence of the ATJ appears not as a failure of nerve, but as a “politically astute” effort to bring along reluctant interlocutors while avoiding triggering a backlash from national governments (273).

This claim is as debatable as it is fascinating. In their contributions to this forum, Alexandra Huneeus and James Gathii identify other regional courts operating in developing country contexts – the Inter-American Court of Human Rights, and the ECOWAS Court, respectively – that have engaged in activist, expansive, law-making jurisprudence, imposing human rights obligations on member states that clearly did not anticipate or welcome them. Implicit in Alter and Helfer’s endorsement of the more deferential ATJ approach, I would argue, is a view that it is preferable for an IC to proceed cautiously, securing buy-in from key interlocutors, rather than adopt a more expansive jurisprudence that boldly establishes new legal principles at the risk of both noncompliance and member-state backlash.

Backlash: Recontracting is Real

This raises a third and final point about Alter and Helfer’s book, namely their newfound appreciation of the threat of member-state backlash against ICs. In Chapter 10 of the book, Helfer concedes that he and Slaughter did not, in 1997, envision the prospect of member governments rising up to attack the courts they had created (278). For her part, Alter had written as early as 2000 about the prospect of backlash against the ECJ from national courts, but as late as 2008 she insisted upon the “irrelevance of recontracting politics” by governments against ICs (48). In Transplanting International Courts, by contrast, both authors confront the new reality of member-state backlash. The past decade, they write, has witnessed a “slew of … deliberate and strategic challenges by political leaders to the formal powers and de facto authority of the courts and the judges who penned the offending decisions” (278). Even the largely deferential ATJ, they write, has prompted several defiant acts of noncompliance, and backlashes against other international courts have been far more dramatic.

Backlash is a minor theme in Transplanting International Courts, but takes center stage in Alter and Helfer’s research with James Gathii on backlash against three African regional courts, which combines the authors’ newfound focus on backlash with their longstanding liberal focus on supranational and subnational interlocutors. Each of Alter, Gathii and Helfer’s meticulously researched case studies begins with one or more dissatisfied member states attempting to use “extra-legal” pressure to short-circuit formal institutional protections so as to remove judges from office, reduce a court’s jurisdiction, or shut down the court entirely. In the face of these attacks, however, Alter, Gathii and Helfer offer a surprisingly “glass-half-full” narrative, in which backlash efforts are at least partially “derailed” by secretariats, civil-society groups, and sub-regional parliaments who “delay or thwart extra-legal strategies, buying time and creating opportunities for court supporters to mobilize” (295). In the case of the South African Development Community Tribunal, they concede, Zimbabwe’s backlash campaign was fully successful, resulting in the indefinite suspension of the Tribunal. The authors depict the other two cases, however, as more hopeful, demonstrating how the Kenyan campaign against the East African Court of Justice (EACJ), as well as Gambia’s efforts to discipline the ECOWAS Court, were blunted to some extent by supranational and subnational supporters.

There is, however, a strong case to be made for a more pessimistic interpretation of these events. Such an account would highlight the ability of dissatisfied member states to circumvent formal protections of international judicial independence, succeeding to varying extents in intimidating, constraining, and even eliminating ICs. Even the nominally mixed cases of the EACJ and ECOWAS are chilling, since the former saw its jurisdiction reduced and its rulings made appealable to a new and conservative appellate body, while the latter has been sent a strong signal of the limits of its independence. Just as importantly, the use of such strong-arm tactics against international courts is not restricted to the developing world, as we have seen in the Trump Administration’s hostage-taking approach to the WTO Appellate Body, which takes a page from Mugabe’s court-curbing playbook.

Ultimately, as with Alter and Helfer’s analysis of the ATJ, these events can be seen from a glass-half-empty or a glass-half-full perspective. The glass-half-empty perspective suggests that international courts are more vulnerable to member-state pressure than many of us had expected, and that we must avoid complacency about the very real prospect that states will continue to intimidate international courts, reduce their jurisdiction, and suspend or eliminate them in response to unwelcome decisions. The glass-half-full approach, by contrast, focuses on the more hopeful possibility that strategic international courts may make common cause with supranational and subnational actors who can not only nurture those courts in their infancy but also defend them when times get tough. Whether these efforts will suffice to protect international courts’ independence, jurisdiction, and existence in an age of backlash, however, remains to be seen.

Symposium: On International Courts in Developing Regions

by Alexandra Huneeus

[Alexandra Huneeus is a Professor of Law at the University of Wisconsin Law School.]

Perhaps the most powerful lesson of Transplanting International Courts is to beware our own parochialism. After all, the only thing new about the Andean Court of Justice (ATJ) when Karen Alter and Laurence Helfer first noticed it was that US-based scholars had begun to take note. The ATJ was created in 1984 and has had an active docket for decades. Its lack of visibility is due, in part, to its survival strategy: Alter and Helfer show that the ATJ does not strive to shine through activist rulings; rather, it is a quiescent court that competently applies the letter of the law case by case, particularly in the realm of intellectual property. But its low visibility is surely also due to a certain scholarly myopia towards things not from Europe or the United States, things not in English, things from poorer countries. As Helfer confesses, the ATJ was an active court when he co-authored his groundbreaking article on the effectiveness of international adjudication in 1997, but neither he nor his co-author, Anne-Marie Slaughter, were aware of its existence, “let alone that the tribunal had decided any cases” (p. 261).

Transplanting International Courts rights the record, placing the ATJ in its proper place in the pantheon of international courts. Because it sits in a restive corner of Latin America, and has done so for over 30 years, the ATJ proves that international courts can survive under dramatically different conditions than those found in Western Europe. The case serves as a test of many theories about court power developed in the context of Western Europe, theories which Alter and Helfer convincingly argue must now be narrowed or recast. For example, the European Court of Justice is unique not because of its relationship to national courts, as argued by Alter in her first book, but rather, she now writes, due to the ideologically driven jurist advocacy movement that championed European integration in the ECJ’s early years (Chapter 9). It is fascinating to watch these two scholars who have played a seminal role in founding the field of international courts revise their earlier theories in light of the ATJ’s unexpected existence and their rich data documenting its success. The result is a powerful contribution to the literature on international courts.

Although Alter and Helfer celebrate the ATJ as the third most active international court in the world and the most successful transplant of the European Court of Justice (ECJ), the book closes with a sober vision of the role of courts in the developing world: “The most that an international court can do, we argue, is to help states individually and collectively adhere to legal rules that they have imposed upon themselves (p. 282).” It is actually somewhat rare and very welcome to see judicial politics scholars embrace the judicial role of simply applying the law to a case. But this conclusion strikes me as too broad for two reasons.

First, there is another European-style judicial transplant in the region that has also been adjudicating cases for roughly the same thirty years, which has grown to have significant influence in at least two ATJ states (Colombia and Peru), all the while adopting a strategy and role almost diametrically opposed to those of the ATJ — the Inter-American Court of Human Rights, created by the Organization of American States in 1979 and having jurisdiction over 20 Latin American and Caribbean states.

Where the ATJ’s many cases each year are mostly “narrow, repetitive questions of IP law,” the Inter-American Court deals in a few, highly symbolic cases in which states are accused of human rights violations, and often of mass atrocities. Where the ATJ issues narrow rule-bound rulings, the Inter-American Court makes the most of its small docket by issuing expansive, innovative judgments. Where the ATJ declines to follow the European jurisprudence because it is too bold, the Inter-American Court declines to follow the European Court of Human Right’s jurisprudence because it is too timid. And where the ATJ enjoys a high judgment compliance rate, the Inter-American Court issues judgments with long lists of ambitious reparatory orders which all but ensure partial compliance at best (ordering states, for example, to amend their constitutions, reform their judicial system, or educate their police forces on CEDAW). Not surprisingly, the Inter-American Court’s high-profile strategy has costs: several states have withdrawn from the underlying treaty or otherwise tried to escape the Court’s authority. And yet the Court has survived, its judgments have real, measurable impact, and it has come to be viewed as a court of last resort on rights issues in many states.

In other words, the Inter-American Court seems to occupy a very different role than that which Alter and Helfer suggest is the only role available to courts in the developing world. It is true that the Inter-American Court at times helps states adhere to specific legal rules that they have imposed upon themselves. But the law can be indeterminate, and the Inter-American Court also has the role of giving content to, and at times providing a new understanding of, certain provisions of the American Convention on Human Rights. Put differently, the Inter-American Court provides a site in which the states and civil society can struggle over and articulate (and re-articulate) shared standards of moral achievement, understood as fundamental rights, in dialogue with national rights litigation. One might also note that the Inter-American Court had an additional role earlier in its trajectory, when its focus was responding to the atrocity crimes of the military dictatorships of the 1970s and 1980s: to build on the work of the Inter-American Commission in accompanying the victims of state repression and bringing their claims to public light.

Some of this may be changing. As the Inter-American Court further develops its ties to constitutional courts and lawyers in the region, it is likely to become a bit more constrained and legalistic. And as Alter and Helfer show in their excellent new chapters on the ATJ’s more recent struggles, the politics of the Andean states can at times thrust the ATJ into the political limelight despite itself. But the differences between the two courts’ trajectories thus far suggest that, even within a single region of the developing world, there may be different paths to success, and different kinds of success, for international courts.

The second aspect of Alter and Helfer’s conclusion that merits further thought is its emphasis on the development/developing divide. Juxtaposing the two pairs of courts — the ECJ/ECHR on the one hand, and the ATJ/Inter-American Court on the other – it is interesting to note that the variation in style and strategy does not seem to map onto the courts’ legal subject area (commerce versus human rights), but neither does it map onto a developing/developed state divide. It would be interesting to see Alter and Helfer explain with more specificity what, exactly, the developing/developed state distinction means and why it matters. The point is not only that developing states are active users of the World Trade Organization adjudication mechanism and of the International Court of Justice. It is also that we are in a time when the features once thought to distinguish Latin American states – including inequality and populist presidencies — are spreading to the Northwest quadrant of the world, and so the developing/developed state divide must be reconsidered. Critical development studies argue that variation on the measures thought to distinguish developing from developed states can be more significant within a single state than among states. Knowledge of and adherence to the rule of law, for example, varies by subnational sectors, an insight that resonates with Alter and Helfer’s discovery of an IP “island of effective adjudication.”

Looking forward, this book is brimming with insights that merit further study by international courts scholars (including, for example, empirical study of whether the Inter-American System has ever had a jurist advocacy network (p.260)). It seems equally if not more important, however, to put Transplanting International Courts into conversation with those who study comparative politics. Alter and Helfer’s finding that “ATJ rulings helped to inculcate rule-law values in the domestic IP agencies” (p.276), and even helped curb corrupt practices, seems particularly salient in the wake of the Odebrecht scandal (which has affected Colombia, Ecuador and Peru in particular). Their theories about the construction of a stable, rule-following realm in the heart of a volatile region should be read by the broad audience of scholars and policy-makers interested in rule of law and democracy in Latin America and beyond.

Introduction to Symposium on Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice

by Karen Alter and Larry Helfer

[Karen J. Alter is a Professor of Political Science and Law at Northwestern University and a Permanent Visiting Professor at iCourtsLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Permanent Visiting Professor at iCourts.]

This Opinio Juris blog engages our findings about the Andean Tribunal of Justice, published in our book Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice (Oxford University Press, 2017). Our book is a deep exploration of a fairly obscure international court, which is illuminating because of the Andean Tribunal’s relative success and longevity despite the many challenges presented by the unstable political context in which it operates. We draw on the Andean experience to reflect on what we thought we knew about how international courts become effective and influential legal and political actors.

In 1979, Andean political leaders added an international court—the Andean Tribunal of Justice (ATJ or Tribunal)—to their struggling regional integration project to help improve respect for Andean legal rules. They turned for inspiration to the highly successful European Court of Justice (ECJ), copying that court’s design features and legal doctrines. Transplanting International Courts investigates the results of this decision, providing a deep, systematic study of the most active and successful of eleven regional courts modeled on the ECJ.

Our book investigates the ATJ’s evolution and impact using a wide range of empirical evidence. We coded every preliminary ruling from the Tribunal’s founding through 2014, reviewed noncompliance cases, analyzed the ATJ’s legal doctrines, interviewed more than forty stakeholders during five trips to the region, traced the professional backgrounds of Andean legal entrepreneurs, investigated legal networks, used process tracing to isolate the influence of key ATJ decisions, and compared the development of the ATJ and ECJ over a quarter century to understand how contextual factors shape judicial decision-making.

One of the book’s central findings is that the ATJ is effective by any plausible definition of the term, but primarily within the domain of intellectual property (IP) law—what we refer to as an “island of effective international adjudication.” The overwhelming majority of the ATJ preliminary rulings—more than 90%—relate to trademarks, patents, and other forms of IP. These rulings have shaped decision-making by domestic agencies, national judges, and private litigants. The Tribunal’s noncompliance judgments have also induced national governments to reverse domestic laws and policies that violate Andean IP rules.

The ATJ’s influence is more limited outside of the IP island, but when compared to other ECJ transplants, Andean judges have made a significant mark. The ATJ is the only ECJ transplant where all four types of legal procedures—preliminary ruling, noncompliance, omission, and nullification—have been utilized. By the end of 2014, the Tribunal had issued 114 preliminary rulings on regional legislation regulating tariffs, customs valuations, taxes, insurance, and agriculture; the Andean Secretariat and private litigants regularly raise noncompliance complaints concerning these and other non-IP issues; and states and private actors challenge the actions and omissions of Andean officials.

Unlike the ECJ, however, the ATJ is not an expansionist judicial lawmaker. The Tribunal lets the member states set the pace and scope of Andean integration and allows for the coexistence of national legislation and supranational authority, yet it does not shy away from condemning clear violations of Andean rules. This circumspect and formalist approach has enabled the ATJ to retain its fidelity to Andean law while building relationships with national administrative agencies, courts, and lawyers. But this approach also means that, unlike in Europe, Community law is not an engine of regional integration.

Transplanting International Courts updates and consolidates our decade-long study of the ATJ and the Andean legal system, allowing us to focus on the recent period of political turmoil in the Andes, as leftist-populist leaders in Venezuela, Bolivia, and Ecuador entrenched their power and challenged the Andean Community’s liberal free trade policies. Two of the book’s chapters investigate how the ATJ has dealt with fraught political controversies that divide the priorities and objectives of the member countries. Chapter 6, The Judicialization of Andean Politics: Cigarettes, Alcohol and Economic Hard Times, traces state and private litigation across multiple Andean legal procedures to reveal how the ATJ navigates these contentious cases and responds to the reality of its real but limited power. Chapter 7, The Authority of the Andean Tribunal of Justice in a Time of Regional Political Crisis, explains how, despite major regional turbulence—a term used by Ernst Haas to explain where European integration tends to falter—the ATJ’s caseload doubled, its IP rule of law island remained resilient, the Tribunal expanded its legal doctrines, and Ecuador’s populist President Correa modified his protectionist trade and monetary policies in response to ATJ litigation (while also working to subsume the Andean Community within a less legalized continent-wide integration regime (UNASUR)). These two chapters offer lessons for other international judges who seek to build a rule of law within inhospitable political environments.

Our in-depth exploration of the law and politics of the Andean legal system also provides an opportunity to revisit our earlier scholarship investigating the ECJ and the European Court of Human Rights. Chapter 9 expands upon Karen Alter’s previous work demonstrating that the ECJ benefitted in underappreciated ways from the support of jurist advocacy movements—movements that are absent or poorly organized in the Andes and elsewhere in the world. The book’s conclusion revisits Toward a Theory of Effective Supranational Adjudication, the influential 1997 article by Larry Helfer and Anne-Marie Slaughter, to consider the limited influence of international judges when backlash remains an endemic concern.

The longevity of the Andean Tribunal of Justice, despite the many challenges it has faced, offers useful guidance for other international courts in developing-country contexts. Moreover, given that the Andean Community and its institutions have weathered member state withdrawals, threats of exit, major economic and political crises, and the retrenchment of foundational laws and policies, the Andean experience also offers timely and important lessons for the challenges that Europe’s older and more established supranational institutions now confront.

We have invited four eminent scholars and jurists to comment on our book and its findings.

  • Alexandra Huneeus, Professor of Law at the University of Wisconsin, Madison, has written extensively on the influence of regional and international courts within Latin America. Reflecting on the role of the Inter-American Court of Justice, which operates in the same region as the ATJ, Huneeus reconsiders on our metrics for international court success and influence.
  • James Gathii, the Wing-Tat Lee Chair in International Law at Loyola University Chicago School of Law, is an expert on international economic law and on regional courts in Africa. Drawing on insights discussed TWAIL scholarship, Gathii also asks readers to think about the metrics for assessing international court success. Gathii brings into the conversation rulings by the East African Court of Justice, another international court operating in a developing country context. Gathii argues that scholars should not import Eurocentric assumptions, and thereby assume that mimicking European courts and achieving compliance are the measures of IC effectiveness or success.
  • Mark Pollack, Professor of Political Science and Law and Jean Monnet Chair at Temple University, is an expert on European legal and political integration. Pollack reflects on the political science project of studying international courts, and in particular our “liberal” approach to conceptualizing international court influence. Pollack extracts, yet questions, three generalizable lessons that one can make based on our examination of the ATJ.
  • Luis José Diez Canseco Núñez served as a judge on the Andean Tribunal from 2014-2017, and he features in our analysis of the role of jurist advocacy movements. He engages our work as a practitioner, discussing how the ATJ looks from his perspective.

We thank our contributors, whose prodding pushes all of us to move beyond current modes of conceptualizing and assessing the influence of international courts operating around the world. We learned a lot, and expect that opinio juris readers will as well, from the thoughtful reflections of our esteemed colleagues, who are complementary yet also quite critical of the approach and arguments we advance in this book. For us, this project was a way to move beyond our Eurocentrism. Huneeus, Gathii, Pollack and Núñez remind us that, given how Eurocentric the predominant theories are, we all have a way to go.

Events and Announcements: March 11, 2018

by Jessica Dorsey

Reminder

  • As Kevin mentioned, we are conducting an Opinio Juris reader survey. Please see more about that here and the link to the survey here. Thanks in advance for your participation!

Call for Papers

  • The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. Published since 1962, it is among the oldest publications at the international level in the areas of military/security law and the law of war. For decades, the Review has been an important forum of discussion for scholars and practitioners from all over the world. The Review is published under the auspices of the International Society for Military Law and the Law of War. It features original and challenging articles, case notes, commentaries of the latest legal developments, as well as book reviews. As a distinct trait, it accepts contributions in six languages: English, French, German, Spanish, Italian and Dutch. For its coming issue (vol. 56/2), the Review’s editorial board welcomes submissions from scholars and practitioners that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)).The deadline for submission is 30 April 2018. Submissions should be sent by e-mail to brussels [at] ismllw [dot] org and will be subject to double-blind peer review. Articles should normally not be longer than 15.000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the abovementioned e-mail address. Selected papers will be published online on the Review’s website in advance access (in a non-downloadable and non-printable form) as well as on Hein Online following editing and type-setting. The print version of the issue is scheduled to come out in Autumn 2018.
  • Universidad del Pacífco Law School is pleased to announce a Call for Papers for its International Law Seminar “New Security Challenges: Organized Crime & Urban Confict in the Americas”, which will take place on October 24-26 2018. After the dictatorships and armed conficts of the latter half of the 20th century, Latin American security has entered a new stage. Politically motivated armed groups are subsiding, while new criminal actors (drug cartels, transnational gangs, and criminal organizations) are fourishing from Mexico to Brazil. The protection of human rights in the fght against crime is adapting to this new reality. In Mexico, Brazil, Peru, and even in the United States, however, there is a worrisome tendency to militarize responses to international crime, sometimes even involving the use of legal tools more proper to armed confict and international humanitarian law than to traditional police action and crime fghting. This Seminar will explore the human rights challenges posed by this new security situation and seek to offer concrete steps and policy options for Latin American governments to pursue. In particular, the Seminar looks to gather lessons other regions may have learned from similar situations. More information can be found here about the event and the call can be found here.

Announcements

  • Postgraduate Colloquium in Critical International Law: The Centre for the Study of Colonialism, Empire and International Law at SOAS University of London and Durham Law School’s Law and Global Justice research centre are delighted to launch the Postgraduate Colloquium in Critical International Law to be held at SOAS in London on 20th September 2018. The colloquium will focus on postgraduate research in international law that takes a critical approach (broadly understood). The organisers are keen to hear from junior scholars taking an innovative or in some sense alternative approach to the study of international law. Relevant approaches might include, for example: feminism/gender studies, queer theory, critical race theory, Marxism, TWAIL/(post-)colonial approaches, international legal history/history and international law, psychoanalysis, structuralism and post-structuralism, post-modernism, law and literature, law and art, realism, law and science, and/or empirical approaches.  The full call for papers can be found here. The deadline for receipt of applications is 15th April 2018.
  • Open call for 2 PhD Positions for the European Research Council (ERC) Funded Research Project, “The Rules of Interpretation of Customary International Law” (TRICI-Law), University of Groningen. TRICI-Law is a research project funded through an ERC Starting Grant, which was awarded in 2017 to Prof. Panos Merkouris. Based at the Department of Transboundary Legal Studies of the University of Groningen, TRICI-Law is seeking two PhD Researchers, each of which will be a four-year appointment. The research focus of the PhD positions will revolve around the theory of interpretation of customary international law, and the manner in which both international and domestic courts have approached it in their own jurisprudence. The successful applicants will be appointed starting 1 May 2018 (or soon thereafter). More information on the positions, the project, submission of applications and selection process can be found here. Applications must be submitted by 29 March 2018 (23:59 CET). Informal enquiries may be directed to Prof. Panos Merkouris (p [dot] merkouris [at] rug [dot] nl).

If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

The Pardon of Fujimori: Amnesties and Remedies Before the Inter-American Court of Human Rights

by Carlos Lopez

[Carlos Lopez is a Senior Legal Adviser at the International Commission of Jurists.]

The “humanitarian pardon and grace” granted by Peruvian President Kuczynski to former President Fujimori on the eve of Christmas 2017 has spurred significant political and legal controversy in Peru and abroad. Predictably, the Presidential pardon and grace –a discretionary measure for the President under Peruvian Constitution of 1993- are being challenged before national courts and the Inter-American Court of Human Rights.

Alberto Fujimori presided over one of the most corrupt and abusive civil dictatorships of recent history in Latin America. Between 1992 and 2000 during a time of economic liberal reform in the country, Peru’s government forces defeated the armed insurgents of Shining Path using harsh anti-terrorism laws, faceless tribunals and curtailing due process and fair trial. (The Shining Path insurgents were themselves responsible for widespread atrocities.) The conflict caused more than 60,000 victims among cases of enforced disappearance, torture and extra-judicial execution by death squads. One such death squad, the Colina Group, was part of the intelligence apparatus that carried out executions for which Fujimori was found indirectly responsible and convicted in 2007. He was sentenced to a total of 25 years in prison (on counts of corruption and grave human rights violations). The pardon now granted to Fujimori releases him from prison, effectively limiting the sentence to 11 years.  But the most significant consequence is that the “grace” grants him immunity from prosecution in the future for other crimes for which he may be charged.

Legal challenges to pardon to Fujimori

The pardon and grace to Fujimori are challenged at two levels: before Peru’s National Criminal Chamber (a specialized High Court that deal with cases of serious human rights violations) and before the Inter-American Court of Human Rights (IACourt). But the proceedings before each tribunal are of distinct nature.  The National Criminal Chamber was asked to decide whether or not to apply the “humanitarian pardon and grace” to Fujimori in the context of ongoing proceedings against members of paramilitary Colina group accused of committing the massacre of several peasants in the locality of Pativilca, north of Lima, an incident for which Fujimori is also alleged to have an indirect responsibility. Under Peruvian law, the effects of the grace granted to Fujimori would extend to ongoing and future investigations and prosecutions, virtually granting Fujimori a personal amnesty and immunity from prosecution. If the National Chamber applies the presidential grace to the case, Fujimori would be excluded from the proceedings. But if the Chamber follows the existing IACourt jurisprudence, it would consider the grace measure without legal effect and not applicable to the case at issue. As expected, on 9 February 2018, the Criminal Chamber decided to set aside the controversial grace, making the measure inapplicable to the case at issue, and continue criminal proceedings against Fujimori and several others. The case is now under appeal to Peru’s Supreme Court.

The domestic legal battle has international ramifications reaching to the IACourt. The IACourt has recently convened a public hearing to monitor compliance with its previous judgments in the well-known cases of Barrios Altos and La Cantuta, both against Peru. At the hearing (2 February 2018), relatives of the victims and human rights organizations called on the IACourt to declare the pardon without legal effect and null and void. The Government of Peru claims the IACourt cannot do so without infringing national sovereignty. According to Kuczynski’s government, the Peruvian Constitution that allows presidential discretionary pardons should prevail. If anything the Court has to request the State to take corrective measures. Some governmental voices are already saying a decision by the IACourt declaring the pardon invalid will not be accepted by Peru.

Human rights organizations (Peruvian and international) have rushed to present their views in what is seen a crucial battle before the IACourt. The International Commission of Jurists together with other groups has argued in an Amicus Curiae brief that the use of pardons and grace as amnesty laws are incompatible with the international law obligations incumbent upon Peru, in particular its obligations to investigate and, when appropriate, prosecute and sanction those responsible for grave human rights violations.

Organizations have also argued that Peru failed in its obligation to ensure conformity of its national laws and regulations (such as the pardon and grace) with the American Convention of Human Rights. The resolution granting the pardon and grace to Fujimori was not taken on the basis of objective information and overlooked due process. Under the IACourt’s jurisprudence all national authorities (including the judiciary) have the obligation to conform their conduct to the requirements of the American Convention and to ensure they do a preliminary test to that effect (so called “control de convencionalidad”).

The prospects: what will the IACourt decide?

Part of the current controversy on the legality of the pardon to Fujimori relates to the kind of decision the IACourt might take.  The positions of the parties to the dispute differ sharply on this point. It should not be forgotten that the current proceedings before the IACourt correspond to phase of monitoring of the implementation of its previous judgments in the Barrios Altos and La Cantuta cases. Here, the IACourt is not exercising primary jurisdiction to decide whether a violation of the American Convention has occurred or not. But even at the stage of monitoring implementation, the IACourt may find that certain measures or conduct by the government are inconsistent with the obligation to implement the IACourt judgments in good faith and in accordance with international law.

Should the Court take a decision on the legality of Peru’s measure granting pardon and grace to Fujimori, it may have two alternatives: it may consider the Fujimori pardon/grace incompatible with international law and order Peru to take corrective measures and abrogate the pardon, or the Court itself may declare the pardon is a breach of international law and as such null and void? In this regard, commentators such as Gurmendi and Tafur have pointed out to the existence of two parallel trends in the jurisprudence of the IACourt which would support either line of action and be the source of certain confusion that needs clarification. But such view might be too hasty.

In its well-known judgment in Barrios Altos v. Peru, the IACourt held that “amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible” because they prevent the investigation and punishment of those responsible for serious human rights violations” (at 41). In a holding that was to become famous, the IACourt declared:

“44. Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the American Convention have been violated.” (emphasis added)

This decision declaring a domestic law without legal validity has been repeated in other judgments, such as Almonacid Arellano v Chile, where the IACourt held that Chilean Decree Law No. 2.191 [granting amnesty for crimes against humanity] does not have any legal effects” (at 119). This jurisprudence constitutes a trend that is expected to be followed in the case of the pardon to Fujimori. An alternative line of jurisprudence finds the IACourt not directly declaring the measures at issue without legal effect, but instead resorting to the more traditional formula of ordering the State to repeal the relevant legislation or measures that are incompatible with international obligations. Such a line was taken in Olmedo Bustos v Chile and the recent Fontevecchia v Argentina, in relation to freedom of expression.

Although both trends in the IACourt jurisprudence are manifest, there is no confusion or, even less, contradiction between the two. The Court has been consistent over time in declaring without legal effect, null and void, measures such as amnesties in cases of grave human rights violations “such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.” (Barrios Altos judgment, at 41).

For the IACourt, the gravity of the violations of the rights at issue (accepted as non derogable) is a determinant factor in tailoring its decision. Laws and other measures that breach international public policy are considered null and void, and without legal effect ab initio. But in all cases, the IACourt orders the State to adopt measures so as to wipe out the practical effects of the void legal measure in its internal order: these include reopening of court proceedings, conducting investigations. It will not be surprising if the IACourt declares the pardon to Fujimori similarly null and void and order Peru to implement the Court sentences in good faith by proceedings with ongoing investigations and prosecutions against Fujimori.

The Customary International Law of Jurisdiction in the Restatement (Fourth) of Foreign Relations Law

by William S. Dodge

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the UC Davis School of Law. He currently serves as a co-reporter for the Restatement (Fourth) of Foreign Relations Law.]

In a recent post, Dean Austen Parrish took issue with some statements about the customary international law governing jurisdiction in the Restatement (Fourth) of Foreign Relations Law. The occasion for his comments was United States v. Microsoft, a case currently pending before the U.S. Supreme Court in which Dean Parrish has filed an amicus brief. I have given my thoughts on the case and on the amicus brief elsewhere and will not repeat them here. In this post, I seek to correct a few misimpressions about the Restatement (Fourth) and the customary international law governing jurisdiction.

First, it may be helpful to sketch briefly the process for producing the Restatement (Fourth). In 2012, the Council of the American Law Institute (ALI) authorized three projects—on treaties, jurisdiction, and state immunity—under the umbrella of the Restatement (Fourth). A team of reporters was assigned to each project. I was made a co-reporter for the jurisdiction project, along with Anthea Roberts and Paul Stephan.

The ALI process begins with a Preliminary Draft prepared by the reporters, which is discussed at a meeting with the project’s counselors, advisers, and members consultative group. Based on this feedback, the reporters prepare a Council Draft, which is discussed at a meeting of the ALI Council. Based on this further feedback, the reporters prepare a Tentative Draft for discussion with the ALI membership at its annual meeting. For the jurisdiction project, three tentative drafts, covering different topics, were approved by the membership and now represent the ALI’s official position. The reporters are currently in the process of combining all the tentative drafts for the three projects together into one volume, which (as indicated below) has resulted in renumbering many of the provisions. Final publication of the Restatement (Fourth) is expected later this year.

On questions of customary international law, the Restatement (Fourth) was blessed with a great deal of expertise from U.S. and foreign lawyers and scholars. Our counselors included three former Legal Advisers of the U.S. State Department, one former Legal Adviser to the U.K. Foreign and Commonwealth Office, and one Judge of the International Court of Justice. Our advisers included designated representatives from the State Department Legal Adviser’s Office. We also had the benefit of a separate international advisory panel of academics and lawyers from outside the United States. A full list of the counselors, advisers, foreign advisers, and members consultative group for the Restatement (Fourth) is here. Not all of these people will agree with every statement in the Restatement (Fourth). The point is that every question of customary international law addressed in the Restatement (Fourth) was vetted with a broad group of U.S. and foreign experts, and the statements about the customary international law of jurisdiction in the Restatement (Fourth) represent the best judgment of the ALI as to what that law is today.

The first misimpression to correct is Dean Parrish’s statement that “the Fourth Restatement does not purport to set out international law.” Quite the opposite is true. Sections 407-413 of the Restatement (Fourth) (Section 211-217 in Jurisdiction Tentative Draft No. 2) restate the customary international law governing jurisdiction to prescribe. Section 432 of the Restatement (Fourth) (Section 402 in Jurisdiction Tentative Draft No. 3) restates the customary international law governing jurisdiction to enforce. The Restatement (Fourth) does not have a corresponding section restating the customary international law on jurisdiction to adjudicate because, as the Introductory Note to Chapter 2 (Introductory Note, Part III, in Jurisdiction Tentative Draft No. 2) observes, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” (The Restatement (Fourth) does have a chapter on state immunity, although its focus is U.S. domestic law under the Foreign Sovereign Immunities Act rather than customary international law.)

With respect to jurisdiction to prescribe, Section 407 states the basic rule: “Customary international law permits exercises of prescriptive jurisdiction if there is a genuine connection between the subject of the regulation and the state seeking to regulate.” Sections 408-413 set forth the most common bases establishing a genuine connection: territory, effects, active personality, passive personality, protection, and universal jurisdiction. These sections discuss foreign practice at length, citing the practice of more than 50 other countries. The specific bases for prescriptive jurisdiction set forth in the Restatement (Fourth) are largely the same as those found in Sections 402 and 404 of the Restatement (Third).

The Restatement (Fourth) does not continue the position of Restatement (Third) Section 403, which stated that customary international law requires an assessment of the reasonableness of exercising prescriptive jurisdiction in each case. As the reporters’ notes to Section 407 of the Restatement (Fourth) explain, “state practice does not support a requirement of case-by-case balancing to establish reasonableness as a matter of international law.” The Restatement (Fourth) does contain a provision on “Reasonableness in Interpretation”—Section 405 in the Restatement (Fourth) (Section 204 in Jurisdiction Tentative Draft No. 3). This is a domestic principle of statutory interpretation, like the presumption against extraterritoriality and the Charming Betsy canon, under which U.S. courts may “interpret[] a statute to include other comity limitations if doing so is consistent with the text, history, and purpose of the provision.”

With respect to jurisdiction to enforce, Section 432 states the traditional rule that enforcement jurisdiction is strictly territorial: “Under customary international law . . . a state may not exercise jurisdiction to enforce in the territory of another state without the consent of the other state.” To apply this rule, of course, one must determine where enforcement occurs in various situations. When a U.S. court requires a person in the United States to produce information located abroad, as in the Microsoft case for example, does the enforcement occur in the United States or abroad? As the reporters’ notes to Section 431 (dealing with U.S. practice with respect to jurisdiction to enforce) explains, U.S. court orders to produce information located abroad “have not provoked the protests from other states that might be expected if such orders constituted extraterritorial exercises of jurisdiction to enforce.” In the Microsoft case, the fact that none of the foreign governments filing amicus briefs—including Ireland—has characterized the warrant in question as an extraterritorial exercise of jurisdiction to enforce seems conclusive.

Dean Parrish directs most of his criticism at the Restatement (Fourth)’s statement that, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” Dean Parrish’s says this is inconsistent with the Restatement (Third), but in fact the Restatement (Third)’s position was more ambiguous than is commonly appreciated. Its Introductory Note for the chapter on jurisdiction to adjudicate, the Restatement (Third) admitted “it is not always clear whether the principles governing jurisdiction to adjudicate are applied as requirements of public international law or as principles of national law.” It characterized the provisions that followed as “international rules and guidelines.” The substance of Section 421 strongly resembled the U.S. domestic law of personal jurisdiction as of 1986, and the reporters’ notes relied heavily on U.S. practice with some reference to U.K. law and the Brussels Regulation. There was no analysis of opinio juris—whether any of the practice was followed out of a sense of international legal obligation.

An honest look at state practice and opinio juris today reveals no limitations on jurisdiction to adjudicate outside the area of immunity. Some bases for adjudicative jurisdiction are certainly considered exorbitant—tag jurisdiction in the United States or jurisdiction based on the nationality of the plaintiff in France, for examples—but these bases are not considered to violate customary international law. The clearest evidence of this is the Brussels I Regulation (Recast) in the European Union, which prohibits the use of exorbitant bases against defendants from other EU member states, but expressly permits the use of exorbitant bases against defendants from non-EU member states and requires EU member states to enforce judgments against such defendants resting on such bases. If states do not refrain from exercising jurisdiction on exorbitant bases of jurisdiction out of a sense of legal obligation, there can be no rule of customary international law prohibiting their use.

The Restatement (Fourth) of Foreign Relations Law also discusses many rules of U.S. domestic law addressing different aspects of jurisdiction, including the presumption against extraterritoriality, personal jurisdiction, forum non conveniens, the act of state doctrine, the doctrine of foreign state compulsion, and the recognition of foreign judgments. (For an overview written for a private international law audience, see here.) The Restatement (Fourth) also tries to distinguish clearly between rules of domestic law and rules of customary international law, and to state rules of customary international law only when they are supported by state practice and opinio juris. But Restatement (Fourth) does address the customary international law of jurisdiction, and it draws on a deep well of expertise in doing so.

Please Take Our Reader Survey!

by Kevin Jon Heller

Dear readers,

As part of some exciting changes coming to Opinio Juris in the next month or so, we are completely redesigning our website. To that end, we would greatly appreciate your taking some time — about 10 minutes — to fill out our Readers Survey. You can find the survey by clicking here.

We will leave the survey open for two weeks — until March 20, 23:59 CET. All responses will be anonymous, so please don’t hesitate to tell us what you really think! If you would like to provide an email at the end of the survey, we will put it into a random draw for a € 75 Amazon gift card. We will collect your answers and your email address separately, so entering the draw will not affect the anonymity of your answers. And we promise not to use your email to send you unwanted messages.

Without our readers, there is no Opinio Juris. So thank you in advance for your participation.

Once again, the link.

International Law vs. Donald Trump: A Reply

by Harold Hongju Koh

[Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. This post is a response to the recent Trump Administration and International Law Symposium hosted on Opinio Juris.]

Can international law save itself from Donald Trump?

Since Election Night 2016, that question has haunted me across many issue areas. Professor Craig Martin and the Washburn Law Journal editors generously invited me to offer an initial answer in their recently published symposium issue in an article entitled “The Trump Administration and International Law.” As I prepare my book-length answer for publication this fall by Oxford University Press, I am deeply grateful to my friends who took the time to make incisive contributions both to the initial symposium—Margaret McGuinness, Clare Frances Moran, and David Sloss—and this virtual one—Laura Dickinson, Bill Dodge, Kevin Jon Heller, and Frederic Sourgens. I especially thank Craig Martin for moderating both symposia and for his astute opening and closing essays, and to the editors of Opinio Juris for hosting this important on-line discussion.

A full-fledged response to these various thoughtful comments will have to await my book. But broadly speaking, I am gratified that all five commentators see the lens of transnational legal process as a useful way to unpack how international law responded to the new Trump Administration in 2017. The commentators seem to agree that transnational actors outside the U.S. government have responded to various Trump initiatives by employing the “outside strategy” of provoking interactions—e.g., the lawsuits in the Travel Ban case–to generate legal interpretations (often by courts), that government actors have been forced to internalize, thereby promoting the “stickiness: of international law. They also acknowledge that, even in the face of intense political pressure, governmental actors have furthered that stickiness by using an “inside strategy” of bureaucratic resistance to adhere to previously embedded, internalized norms of international law. At a strategic level, the commentators seem to agree that a strategy of “international law as smart power”–connecting with like-minded countries through engagement around values, translating new norms of international behavior from extant norms of international law to address novel situations and technologies (e.g., drones, cyberconflict), and leveraging that law-based cooperation into enduring diplomatic solutions will far more likely strengthen international law in the long run than the Trump Administration’s repeated resigning from global leadership through disengagement, focus on national interests, and going it alone.

At the same time, each commentator registers a thoughtful caution against painting too rosy a picture going forward for transnational legal process. Professor Dodge wisely notes that litigation against the United States Government is always a double-edged sword. Litigation may harden the executive’s resolve to defend and continue negative behavior and can trigger normatively undesirable litigation positions, an argument that Rebecca Ingber persuasively laid out in her important explanation of how “interpretation catalysts” can entrench defensive anti-international law executive branch decisions. But Dodge’s argument does not so much cut against invoking transnational legal process during the Trump Administration, as it calls for smart litigators to be thoughtful about their litigation strategy. On some issues—for example, when the new Administration issues a thinly disguised Muslim Ban one week in—Trump’s subordinates threw down the gauntlet by publicly declaring that the President’s authority “may not be questioned.” Under such circumstances, thoughtful resistance through litigation becomes both a challenge and the best available option. Rule of law litigators have little choice but to generate interactions and interpretations in the smartest possible way: to choose the right cases and the most advantageous fora, making arguments sensitive to the range of positions the U.S. Government has taken in the past in an effort to advance better interpretations of international law. Whatever the ultimate outcome, such litigation serves an important signaling and public education function. The Travel Ban case, for example, has signaled government litigators that there are limits to the arguments they can make and reminded beleaguered public servants that the legal interpretations they were fighting for within the bureaucracy resonate with the courts and the public at large. Especially when combined with street demonstrations, injunctions remind policymakers that they cannot unilaterally change the status quo while the whole world—including courts –is watching. Perhaps most important, prudent persistent litigation reminds Muslim-American communities that they are not alone and teaches the public that resistance is not futile.

Professors Dickinson and Sourgens usefully ask how law and policy differ as tools to promote the stickiness of internalized international norms. Professor Dickinson uses the 2013 Presidential Policy Guidance on Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities to enumerate the advantages and disadvantages of adopting certain norms as voluntary government policy, as opposed to conceding that they are legally required. She correctly notes that there “may be certain path dependencies that cause policies to be ‘sticky’ once adopted, [but] there is little doubt that Executive Branch policies usually do not bind future administrations in the same way as Executive Branch determinations about the applicability of international legal rules.” Yet elsewhere in her post, she offers what may be the best response to her own concern: that one reason not to focus overly “on the law/policy distinction [is] because … norms articulated as a policy matter impact legal rulings and over time may ‘harden’ into law. Indeed, such seepage seems to be at the core of transnational legal process.”

This is precisely what has happened, for example, with a little-noticed March 2011 Obama Administration announcement of

support for two important components of the international legal framework that covers armed conflicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions. Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to which 165 States are a party. An extensive interagency review concluded that United States military practice is already consistent with the Protocol’s provisions. Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict. Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported. Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well (emphasis added). 

While in 2011, the Obama Administration could not bring itself to say outright that these provisions were customary international law, as time has passed, these convictions have hardened from policy into law, advancing the U.S. government’s lengthy struggle to decide whether and to what extent it is bound –not just as a matter of policy, but of law–to comply with the two additional protocols to the 1949 Geneva Conventions.

One of my core claims is that it is both unrealistic and counterproductive artificially to split off legal from policy and political constraints when discussing the impact of transnational legal process on government behavior. In real life, these three kinds of constraints are usually intertwined and are often used in combination to check action destructive of legal stability. Although international lawyers often say, “let’s carefully distinguish between law and policy,” in real life, it is rarely so clear-cut. Law, policy, and politics pose interconnected constraints in foreign affairs decisionmaking. Some policy options may not be available as a matter of law. Some lawful options may not be wise as a matter of policy (what we used to call “lawful, but awful.”) Some options might be desirable as a matter of both law and policy, but when tried, just prove not to be politically available (as they famously say in Hamilton, “you don’t have the votes”).

My lecture’s detailed discussion of Trump’s difficulties in extricating the United States from the Paris Climate Accord and the Iran Nuclear Deal vividly illustrates the unexpected ways in which these legal, policy and political constraints have interacted together to create a web of guardrails obstructing Trump’s threatened disengagements. For example, in the Paris Accords, Trump is for now legally sticking to the 4-year term of withdrawal set forth in the treaty, while also facing a set of policy and political constraints that have blunted his goal of exit. This bundle of constraints has led to a broader phenomenon that my book calls “resigning without leaving:” the de facto outcome of all of Trump’s blustering has not been exit from existing international regimes, but the United States’ staying in as an announced lame duck, with predictably reduced influence. The wide-ranging counter-strategy of damage control across many issue areas has created a de facto path of least resistance: a default whereby the United States under Trump rarely leaves, but rather, stays in and underperforms within existing international regimes. While that is a suboptimal state of affairs, at least it has the virtue of being curable, at a future time when Trump and his party no longer control both the White House and both houses of Congress.

Professor Sourgens usefully points to two broader dangers of Trump. The first is that his relentless disdain for international law may outlast “stickiness,” by “ungluing” the elements of the administrative state that maintain obedience to international rules. Second, viewed in the broader light of Brexit and the global resurgence of Orwellian authoritarianism, Trump is plainly not so much a one-off as a symptom of a much broader counter-assault on the postwar Kantian global order that can flow through the same channels of transnational legal process that foster compliance: enabling a “transnational transference of lawlessness, or photonegative of …transnational legal process” My article tried to capture Sourgens’ insights in adopting the analogy of Muhammad Ali’s “rope-a-dope” as a counter-strategy to George Foreman’s offensive pummeling. In the game of “rope-a-dope,” both sides pay a fearful cost, and even while the nominal winner, Ali, may win the fight, in the process he may endure the kind of battering that weakens his fabric and leaves him unglued in the long run.

While these concerns are real and serious, as yet, I hope they are premature. The “tally so far,” chronicled in my article, suggest that transnational process is working so far, although harder times clearly lie ahead. Sourgens correctly notes that “the great ungluing precisely seeks to impeach the reflex to coordinate domestic and international legal processes.” But that is precisely why our counterstrategy should be to strengthen that connection: other American climate actors—states and localities, private companies and NGOs, the bureaucracy—should make clear to the international actors seeking to preserve the Paris accords that Donald Trump does not own the process or speak entirely for America. Norm-internalization goes all the way down. Street-level demonstrators in San Francisco or farmers in Vermont well understand the negative impact that global climate change is having on the level of their local coastline or the local temperature in the winter-time. Trump’s anti-globalist rhetoric may seek to sever the link between the domestic and the international, but in a modern age of globalization, the interactive link between domestic and global law is just as deeply intertwined as the link between local cause and global effect. The United States can no more resign from today’s global system than an individual can resign from the human race. Because transnational legal process is much bigger than Trump, he does not and cannot own it; we all do.

My good friend Kevin Heller makes two basic objections, which are part of a broader left critique of my approach. The first is that I am too praising of Obama. Like all administrations, the Obama Administration was far from perfect, and my goal has never been to whitewash its blemishes. My point is not that Obama always succeeded –and I agree with Kevin that the lack of accountability for torture was a glaring, continuing failure–but that Obama articulated a better general strategy of “international law as smart power:” when in doubt, engage-translate-leverage, rather than follow Trump’s destructive approach of “disengage-cite national interests only-and go it alone.”

Professor Heller secondly objects at length to what he calls my support for the legality of “unilateral humanitarian intervention;” when in fact I have argued that humanitarian intervention is not always unlawful under all circumstances under both domestic and international law, particularly when UN Security Council resolution has been persistently blocked by twelve Russian vetoes (the “never/never rule”). We need not recapitulate this lengthy debate, as I have already fully laid out my position here and here. Suffice it to say that I have not broadly endorsed unilateral humanitarian intervention as a matter of either law or policy. To the contrary, my claim has been that, twenty years after Kosovo, it is long past time for the United States government lawyers and legal academics to engage with their foreign counterparts—particularly in United Nations and nations like the United Kingdom, France, Belgium and Denmark– to determine whether and under what narrow circumstances limited intervention for humanitarian purposes may be lawful. After Kosovo, the international legal community went some distance to define a legal standard to govern the lawfulness of Responsibility to Protect or R2P. I simply argue that it is time to finish the job.

Because Kevin offers no alternative to the notion that humanitarian intervention is always illegal or to the status quo that I have called the “never-never rule,” he offers no suggestion as for how we should stop the continuing horrible slaughter in Syria, which is only intensifying as ISIL retreats. Moving away from his original absolutist reading, Kevin notes that “[a]lthough as a lawyer I would feel better about humanitarian intervention in Syria if it was authorised by the General Assembly, I am skeptical that such intervention would actually work.” On both scores, I feel the opposite. As recent UNGA votes on various electoral matters have shown, as a practical matter, the Chinese and the Russians have shown far more capacity to influence a General Assembly resolution with non-humanitarian based threats and financial inducements than do NATO countries that over the years have shown far more respect for the use of force provisions of the U.N. Charter.  So a reliance on the UNGA or the Uniting for Peace Resolution would make more Russian and Chinese-led “humanitarian interventions” far more likely than ones measured by the carefully defined rule that I set forth in my earlier writings on this subject.  And while Kevin questions whether “such intervention would actually work,” he does not fully address the likelihood that the threat of humanitarian intervention could “work” as a critical element finally to galvanize an enduring diplomatic solution.

As someone who lived through the Balkans, I learned long ago that a Richard Holbrooke-ian smart power exercise of diplomacy backed by force can sometimes get warring factions to the table, as it did at Dayton even to stop the most intractable conflict. To be clear: I have not advocated use of force in Syria for its own sake, or to engage in broader regime change; I have simply argued that international lawyers should not take the smart power policy option of diplomacy backed by force off the table by artificially claiming that a collective exercise of the Responsibility to Protect is always legally unavailable. It is a fiction to assert an absolutist norm against intervention as a prevailing governing norm, at a time when all the world seems to have intervened in Syria. It is even worse when sticking with that anti-interventionist legal fiction becomes a de facto pro-slaughter position as a matter of policy. In the end, my debate with the admirable Professor Heller shows once again why it is a mistake to try to think (and teach) international law analysis solely within its own bubble, entirely distinct from policy.  In the international realm, law and policy are inevitably and inextricably intertwined. Most transnational players use policy arguments to try to change international law, or make international law claims to force governments to change their policies.   Academics will miss half the picture if they constantly insist on artificially separating the two.

Finally, Craig Martin’s closing piece correctly notes the limits of transnational legal process: “interpretation and internalization will only result in compliance with international law if the interpretation itself is at least within a range of reasonable interpretations consistent with established principles of international law.” Professor Martin expresses some surprise at what he calls “the move from the descriptive to the normative;” he had always thought of transnational legal process as a descriptive theory, not a call to arms or a prescriptive counter-strategy. But in fact, the normative component has been a key part of transnational legal process theory from the beginning. My original lecture sketching the theory 22 years ago closed by saying:

“It is sometimes said that someone who, by acquiring medical training, comes to understand the human body acquires as well a moral duty not just to observe disease, but to try to cure it. In the same way, I would argue, a lawyer who acquires knowledge of the body politic acquires a duty not simply to observe transnational legal process, but to try to influence it. (emphasis in original) (207)”

Some might chide me for proposing an “elite project” of transnational lawyering in response to a populist rejection of just such elite policymaking.  To be clear, I do not mean to be offering a complete account of the forms of political response required to deal with Trump and the new authoritarian populists.  Nothing I say should be read to suggest that concerned citizens around the world should not be in the streets demonstrating or that grassroots efforts should not be trying to win back the state houses and institutions of formal government power.  Lawyers are never going to relieve us of the burdens of politics, but they certainly can—and I believe should—constantly create acts of political pressure through law that promote the rule of law through training and techniques that simply are not available to others.

If believing this, as Professor Sourgens charges, makes me “a perennial optimist,” I humbly plead guilty. But I don’t simply bet “that the stickiness of transnational legal process is stronger than the force seeking to unglue it,” as Sourgens says. Instead, I believe that our job as lawyers is to make sure that it is stronger. To be clear, as a predictive matter, I am not claiming that Trump will inevitably be checked by some kind of self-correcting synopticon of distributed checks and balances. Rather, as a normative matter, I think that committed international lawyers have to fight to preserve the imperfect world we have inherited. As Dr. King memorably put it, “the arc of the moral universe is long, but it bends toward justice.” But it certainly does not bend by itself. If Trump and those of his ilk are pushing hard to bend that arc in one direction, isn’t it the job of all of us who care about international law to push it even harder in the other?

Did the Trump Administration’s Jerusalem Declaration Violate International Law?

by David Hughes

[David Hughes is a Grotius Research Scholar at the University of Michigan, Law School and a PhD Candidate at Osgoode Hall Law School in Toronto.]

On 6 December, President Trump signed a Proclamation recognizing Jerusalem as Israel’s capital and ordering the relocation of the American Embassy from Tel Aviv. The announcement reflects the long-standing will of Congress. It is consistent with past electoral promises. It is, perhaps, the Trump Administration’s first major policy statement to gain the Democratic leadership’s approval.

Despite constant assurances, past executive branches have withheld formal recognition and deferred the Embassy’s relocation. The Trump Administration’s Jerusalem pronouncement disrupts this orthodoxy. It contradicts the longstanding position of the international community, who since the termination of the British Mandate of Palestine, have proposed internationalization, provided de facto recognition, and prioritized negotiations to settle – but never confer – Jerusalem’s status.

The Administration’s declaration was denounced by an array of actors. A consistent refrain emerged. The actions of the United States violated international law. Palestinian Authority President Mahmoud Abbas stated that the decision was a “flagrant violation.” The Arab League noted the danger of such legal disregard. France’s Ambassador to the UN called upon the Americans to “clarify the compatibility of [the Jerusalem declaration] with [the] common legal base on which all peace efforts are built.”

The Presidential Proclamation, however, ensured legal latitude. The edict claimed that “the United States continues to take no position on any final status issues… [and that] the specific boundaries of Israeli sovereignty in Jerusalem are subject to final status negotiations between the parties.”

In late January 2018, President Trump met with Israeli Prime Minister Benjamin Netanyahu in Davos. The President declared, “they never got past Jerusalem. We took it off the table. We don’t have to talk about it anymore.” The Administration’s assertions that the Proclamation was consistent with support for a negotiated agreement appeared doubtful. The legal inoculation weakened. Again, the Palestinian leadership reiterated calls of legal disregard. The General Assembly opposed the Trump Administration’s policy shift. Assertions that the Jerusalem declaration violates international law, however, failed to provide legal reasoning. This post briefly explores the legal questions raised by the Administration’s Jerusalem declaration from the perspective of non-recognition obligations.

The duty of non-recognition

The duty not to recognize situations created by certain unlawful acts is an established tenet of international law. It is the necessary corollary of the principle ex injuria non oritur. Article 41(2) of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) requires that, “no State shall recognize as lawful a situation created by a serious breach [of a peremptory norm of general international law].” The duty of non-recognition is thus qualified. It is understood to apply in response to a serious breach of a jus cogens norm and is only applicable when the serious breach facilitates a legal claim of status or entitlement by the violating State. As Martin Dawidowicz explains, this creates a situation that “all States are obligated not to recognize as lawful.” Most often, Dawidowicz recognizes, the ILC Commentaries and state practice link the triggering breach to “territorial acquisitions brought about or maintained by the threat or use of force (p.678).”

Article 41(2)’s broad formulation has caused scholars to question whether “customary international law knows of a general duty of non-recognition of all situations created by a serious breach of jus cogens (p.102).” Though several query the scope and content of the obligation when applied to certain jus cogens breaches, both the ICJ in its Wall Opinion (para.87) and the ILC contend (p.114) that the duty not to recognize forceful territorial acquisitions reflects customary international law. Stefan Talman notes, beginning with the 1949 Draft Declaration on the Rights and Duties of States, the obligation to deny recognition of territory acquired through force possesses a long lineage (p.102-103). This has developed through consistent state practice and is reiterated within many international legal instruments.

Prominently, the 1970 Friendly Relations Declaration (FRD) stated that, “no territorial acquisition resulting from the threat or use of force shall be recognized as legal.” The ICL Commentaries on the Draft Articles on State Responsibility note the unequivocal nature of this obligation that derived from U.S. Secretary of State Henry Stimson’s response to the 1932 Manchurian crisis and has been recognized by the ICJ in its Nicaragua decision as possessing unanimous state approval (para.188).

What is the applicable legal standard?

The Jerusalem declaration raises several questions concerning the non-recognition obligation. James Crawford explains that “when the illegality invoked is substantial, and in particular when it involves a peremptory norm of international law, States have a duty under customary international law not to recognize the act as legal. The norm in question must either be one of the limited number of peremptory norms or…a substantive rule of general international law, so that the illegality is one that involves the international community as a whole and not just particular States (p.160).”

This presents three questions that bear upon the legal consequences of the Trump Proclamation: (i) Is the Israeli claim to Jerusalem facilitated by an unlawful act? (ii) If so, was this situation created by a serious jus cogens breach? (iii) And did the Trump Administration’s declaration constitute recognition?

Is the Israeli claim to Jerusalem facilitated by an unlawful act?

Determining whether a non-recognition obligation has arisen is interwoven with the contestations of Jerusalem’s legal status that began during the Mandate-era and continue to this day. In 1947, Palestine’s proposed partition (Part III) sought to establish Jerusalem as a corpus separatum under UN administration. The plan was accepted by Palestine’s Jewish community but dismissed by the Arab delegations. Upon the establishment of Israeli statehood and the immediate declaration of war by five neighbouring states, Jerusalem was divided – East and West – between Jordan and the nascent State of Israel. A new map was drawn along the 1949 Armistice border. This increased Israel’s territorial allotment and became the starting point for efforts to secure a negotiated agreement with the Palestinian population. Though the international community formally favoured internationalization, Israel began relocating governmental institutions to the City. In December 1949, Israel declared Jerusalem as its capital.

A fragile status quo was disrupted in 1967 when, following the Six Day war, Israel gained control of Jerusalem’s eastern sector (along with the rest of the West Bank, the Gaza Strip, the Golan Heights, and the Sinai Peninsula). Immediately, Israel expanded Jerusalem’s municipal boundaries and applied its jurisdiction throughout the newly defined City. The General Assembly declared these initiatives invalid and called upon Israel to rescind measures intended to alter Jerusalem’s status. Despite proclaiming Jerusalem’s liberation and reunification, Israeli diplomats insisted that the imposed measures did not constitute annexation.

In 1980, the Knesset passed a Basic Law declaring “Jerusalem, complete and united, the capital of Israel.” Though the legislation did not impose any practical changes, it formally acknowledged a reality that began upon Israel’s de facto annexation of East Jerusalem in 1967. Firm rebukes followed. The General Assembly called upon Israel “to withdraw completely and unconditionally from all the Palestinian and other Arab territories occupied since June 1967, including Jerusalem.” Security Council Resolution 478 declared that Israel’s claim violated international law. This prompted a process of collective non-recognition. Continuing, the Security Council called upon Member States “not to recognize the ‘basic law’ and other such actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem.” It required that “those States that have established diplomatic missions at Jerusalem to withdraw such missions…” Existing embassies left the City. Despite de facto acceptance of Israel’s claim to West Jerusalem and the separate legal treatment of the City’s two sectors, the Security Council’s call to withhold recognition received – even amongst Israel’s staunchest allies – near universal adherence.

Does this act constitute a situation created by a serious jus cogens breach?

Security Council Resolution 478 is premised upon the norm that “the acquisition of territory by force is inadmissible.” This, John Dugard recognizes, provides the principal reason justifying the non-recognition of Israel’s claim to East Jerusalem (p.113). As noted, the non-recognition obligation is contingent upon the commission of a serious breach of a peremptory norm. While the prohibition of aggression constitutes (p.85) a jus cogens norm, Israel maintains that Jerusalem’s reunification resulted from an “unprovoked Arab attack.” Despite the merits of Israel’s defensive claims, the FRD clarifies that the inadmissibility of territory acquired by force is absolute and not contingent upon assessments of jus ad bellum.

Further, Israel’s annexation of East Jerusalem may be construed separately from the underlying use of force that led Israel to assume control of the City’s eastern sector. Israel has refrained from asserting sovereign claim over the West Bank and Gaza which have instead been subject to prolonged occupation. The subsequent control of East Jerusalem – realized through annexation and governed in accordance with Israeli law – may be understood as an independent act of aggression.

Annexation is defined as “the forcible acquisition of territory by one state at the expense of another State.” The ICRC notes that “annexation amounts to an act of aggression, forbidden by international law.” This is confirmed by the General Assembly’s Resolution on the Definition of Aggression which qualifies an act of aggression as, inter alia, “any annexation by the use of force of the territory of another State or part thereof (Art. 3).”

This evokes questions regarding Palestinian statehood and whether Israeli actions – either in 1967 or in 1980 – constitute the forceful annexation of “another State or part thereof.” It is worth noting, however, that the ILC Commentaries hold that the non-recognition obligation “applies to situations created by…[the] attempted acquisition of sovereignty over territory through the denial of the right of self-determination of peoples.” This builds upon the FRD which holds that “every state has the duty to refrain from any forcible action which deprives peoples…of their right to self-determination and freedom and independence.” This principle, coupled with the longstanding prohibition on the forceful acquisition of territory, motivated the ICJ to hold in its Wall Opinion that “that all States are under an obligation not to recognize the illegal situation [arising from the construction of the separation barrier] in the Occupied Palestinian Territory, including in and around East Jerusalem (paras. 87-88, 146).”

Did the Trump Administration’s declaration constitute recognition?

The Trump Administration’s Proclamation did not reference East Jerusalem directly (either in recognition of Israel’s sovereign claim or in support of Palestinian aspirations). Though the announcement is prejudicial towards Israeli interests, initially there appeared sufficient ambiguity to fall short of formally recognizing Israel’s claim to East Jerusalem.

The ARSIWA Commentaries, however, state that Article 41(2) not only extends to formal recognition but prohibits acts that would imply recognition (p.114). In its Namibia Opinion, the ICJ held that non-recognition compels states to abstain from establishing diplomatic missions in the unlawfully acquired territory. States, the Court continued, have a positive duty to make clear [to the South African authorities] that “the maintenance of diplomatic or consular relations…does not imply any recognition of its authority [with regard to Namibia] (para. 123).”

Such implied recognition appears throughout the Proclamation and in the President’s subsequent statements. The Presidential order to relocate the Embassy appealed to the Jerusalem Embassy Act of 1995. The Act did not omit the declarative language that the Trump Administration purportedly sought to avoid. It noted that the Six Day war marked Jerusalem’s reunification and stated that the City served as Israel’s undivided capital. The Trump Administration Proclamation begins by referencing this Congressional acknowledgement and the Senate’s unanimous reaffirmation on the occasion of “the 50th anniversary of the reunification of Jerusalem.” Addressing the General Assembly, U.S. Ambassador Nikki Haley, justified the Administration’s Jerusalem declaration as in accordance with the Embassy Act.

The Proclamation notes that U.S. policy decisions are grounded in “principled realism.” The recognition of Jerusalem as Israel’s capital is presented as plain fact. Jerusalem, the President noted, “is the seat of the modern Israeli government.  It is the home of the Israeli parliament, the Knesset, as well as the Israeli Supreme Court.  It is the location of the official residence of the Prime Minister and the President.  It is the headquarters of many government ministries.” While this is of course accurate, several governmental institutions are located in the City’s eastern sector including the Ministry of Justice and the National Headquarters of the Israel Police.

Rationalizations that cite the location of national institutions and that are grounded in the Embassy Act allude to a conception of Jerusalem that aligns with Israel’s post-1967 claim to a united City. The President’s comments in Davos – that his Proclamation took Jerusalem off the table – moves from the contention that the City’s status remains subject to negotiation and toward recognition of a situation created through the forceful acquisition of territory.

Finally, the Administration’s determination that “the United States will relocate our Embassy…from Tel Aviv to Jerusalem” further implies recognition of Israel’s claim to the united City. Associating the embassy’s location with recognition of Jerusalem’s status had initially motivated the United States to post its Ambassador away from the contested City. A 1958 despatch from the U.S. Counsel General in Jerusalem noted, “many other countries mark their respect for the internationalization resolutions by establishing embassies in Tel Aviv thus avoiding recognition of Jerusalem as the capital of Israel and, by implication, as Israel’s de facto sovereign territory.”

Though the international legal treatment of Jerusalem has moved from proposed internationalization and towards a vision determined through negotiation and shared amongst two states, the City’s status remains fiercely contested. The Trump Administration’s pronouncement raises important questions regarding non-recognition requirements and appears incompatible with the policy objectives that the obligation conveys and which the international community has pursued with near unanimity.

The European Convention on Human Rights: the Draft Copenhagen Declaration and the Threat to the European Court

by Roisin Pillay

[Róisín Pillay is Director of the International Commission of Jurists (ICJ) Europe Programme.] 

The European Court of Human Rights is once more facing a political challenge to its role, in proposals for a new political declaration put forward by the Danish Presidency of the Council of Europe. 
That the Court’s extraordinary success in advancing human rights protection in Europe provokes the dissent of certain governments is nothing new. Neither is this the first time that the eight year long reform process – instigated by the Interlaken Declaration of 2010  in order to deal with the overwhelming caseload of the Court – has been the forum for political resistance to the Court’s perceived intrusion into national affairs.  The reform process has constantly navigated delicate questions of the respective powers of the Court and the Council of Europe Member States.   
Notably, the UK government’s initial proposals for the 2012 Brighton Declaration posed serious threats to the independence and role of the Court, and to the right of individuals to petition it. Ultimately, under pressure from some States as well as civil society, the most damaging of these proposals were not pursued. However they did result in, amongst other things, the enshrining of a reference to the principles of subsidiarity and the “margin of appreciation” that states are considered to enjoy in protecting certain of the Convention rights, in the preamble to Protocol 15  to the Convention. Since then, the Brussels Declaration of 2015 commendably re-directed attention to the problem that is the real root of the Convention system’s struggles: failings in effective national implementation of the Convention rights, which leave victims of human rights violations with no other recourse but to take their case to Strasbourg.
The Danish Government, which took on the rotating Presidency of the Council of Europe in 2017, has now proposed a new political declaration  on the Convention system, to be agreed at a high-level conference of Council of Europe Member States in Copenhagen in April. A draft of the Copenhagen Declaration was published in February. The text, while including some welcome re-affirmations of the need for enhanced national implementation measures and better execution of Court judgments, as well as strengthened selection processes for judges of the Court, also contains proposals that carry significant risks for the independence and role of the Court, and for the consistent protection of Convention rights across the Council of Europe region.  To assure the continued credibility and health of the Convention system, it needs to be significantly amended.
The draft Declaration has already faced sharp criticism, including from a coalition of  international NGOs (including the ICJ) which made detailed proposals for amendments; from Danish NGOs and from academic commentators.  The Court itself has responded cautiously refraining from strong criticism, but drawing attention to the governing framework for the role of the Court under the ECHR and to principles of judicial independence which it notes must be respected by the Declaration.

Three main elements in the Declaration are of particular concern.

First, the draft Declaration emphasises the need for “better balance” between the respective roles of the Court and Member States, based on “shared responsibility” for the protection of the Convention rights (para.11).  The Convention certainly envisages complementary roles and responsibilities for national authorities and the Court within the Convention system: it is the obligation of Member States to respect and protect the Convention rights (Article 1 ECHR) and the role of the Court to supervise this obligation. The Court’s role is clearly set out in Article 19 of the Convention, as “to ensure the observance of the engagements undertaken” by States under the Convention.  Article 32 establishes that the Court’s jurisdiction in doing so extends to “all matters concerning the interpretation and application” of the Convention rights.  The much contested doctrine of the “margin of appreciation” developed in the Court’s jurisprudence applied by the Court in respect of certain rights or aspects of rights only, does not in any way displace or diminish this jurisdiction.

The draft Declaration however, seems to allow for more qualified role, based on an unduly wide interpretation of principles of subsidiarity and the margin of appreciation. The draft emphasises that the Convention rights should not only be secured at national level, but also “determined” there (para.10) and that rights should be protected “predominantly at national level by State authorities in accordance with their constitutional traditions and in light of national circumstances,”  a proposition that appears to leave room for varying standards in the protection of the Convention rights, contrary to the principle of universality. Startlingly, given the only too evident, continuing occurrence of sometimes grave and systematic human rights violations within the Council of Europe region, the draft Declaration confidently asserts that this new emphasis on national adjudication is a “natural step in the evolution of the Convention system” given that the Convention is now well embedded in national legal systems (para.10).

The second aspect of the draft Declaration worthy of particular scrutiny is proposals addressing the “subsidiary rule of the Court”. The principle of the subsidiary nature of the Convention system is long established in the jurisprudence of the Court. It recognises that national authorities are best placed to evaluate local needs and conditions in the implementation of human rights, but also that such implementation must always be subject to the Court’s review. The draft Declaration posits a notion of subsidiarity that appears to restrict the Court’s role, however, stating (without qualification as to the nature of the rights or aspects of rights concerned) that: “the Court … should not take on the role of States Parties whose responsibility it is to ensure that Convention rights and freedoms are respected and protected at national level.” (para.22) Singling out asylum and migration cases, it asserts that where national procedures in these cases operate fairly and in respect for human rights, the court should only intervene “in the most exceptional circumstances”. (para.26) In the context of a political declaration, such language appears to question the scope of the Court’s role under Article 19 of the Convention.  It is all the more concerning because it is followed by direct calls on the Court to apply more “robustly” the principles of subsidiarity and the margin of appreciation.  These are principles of judicial interpretation, whose application should be a matter for the Court alone; in seeking to direct the Court as to their nature and scope, the draft Declaration fundamentally misconstrues the role of the judiciary under the rule of law.

Finally, the most disturbing passages of the draft Declaration are those that promote the idea of a “dialogue” between Member States and the Court. The draft declaration proposes “an ongoing constructive dialogue between States Parties and the Court on their respective roles in applying and developing the Convention” (para.31) and “an ongoing dialogue in which states and their populations are actively involved” (para.32).  Such dialogue would “give a clearer picture of the general views and positions of governments and other stakeholders, thereby solving some of the challenges of developing the Convention over time [and…] anchor the development of human rights more solidly in European democracies.” Although the draft also stipulates that such dialogue should take place “with respect for the independence of the Court and the binding character of its judgments”, this qualification rings hollow against the background of the proposals made; the risk that that they could facilitate inappropriate political pressure on the Court regarding specific cases, principles or standards, is clear, and is difficult to avoid.  

Of course, the Convention system already allows space for the views of Member States on regional human rights standards to be expressed – a “dialogue” of sorts – within the bounds of constitutionalism. First, Member States can continuously shape and develop Council of Europe human rights standards through standard setting in the Committee of Ministers.  In individual cases before the Court, they also have wide powers to put forward their views through third party interventions. “Dialogue” between governments and an independent court outside of these spheres is however no more appropriate than it would be within a national system.   The court’s proper interlocutors in any exchange of views between the national and regional levels are national courts, with which it has already established fruitful dialogues.

It is disappointing to see basic principles of the rule of law such as the independence of the judiciary being called into question within a regional human rights system designed precisely to defend such standards – and which has been so effective in upholding these standards in the region.  It is a cause for continuing concern that regional human rights systems – not only the European Convention system but also notably the Inter-American Court and Commission – increasingly face such challenges arising from the hyper-nationalist politics of their Member States.  

The draft of the Declaration is of course still in its early stages and it is to be hoped that the Member States will heed the warning voices and substantially amend the Declaration.  How should they transform it? The European Convention system undoubtedly needs the political support that a high level political declaration could bring.  First and foremost, it needs a Declaration that would contain clear, specific and practical commitments from the Member States on national implementation and on execution of judgements (drawing on the language in the Brussels declaration). This, combined with better national processes for the often complex exercises involved in executing European Court judgments, would considerably lessen the caseload of the Court.

Second, the Declaration should provide the elements the court needs to be effective in exercising its supervisory role: strong political re-affirmation of support for its role and independence; commitments for sufficient additional resources to deal with its caseload effectively, and improved judicial selection procedures that will ensure that the best candidates can be appointed to the Court and can carry forward its vital work.  It is this last point, as ICJ and OSJI have argued in a recent report on selection of judges for regional human rights courts, can truly ensure that future of the system is strengthened from within. 

These issues are already addressed by the Copenhagen Declaration – they should be placed at its heart, and the text that threatens the independence and role of the Court should be discarded.  As negotiations on the Declaration continue, there is still time for it to make a positive contribution to the future of the Convention system.

The Impact of Unpaid Internships at the ICC on the Development and Legitimacy of the ICC

by Karl Kemp

[Karl Kemp is a freelance South African journalist whose work has appeared, inter alia, in VICE and Rolling Stone magazine.]

The controversy and angst engendered by the subject of unpaid internships is nothing new to my generation. In 2015, an UN intern in Geneva was found sleeping in a tent next to the city’s eponymous lake, unable to afford housing, having lied on his application form regarding the fact that he had sufficient means to support him during the program. The world’s paid-internship advocacy groups have come into ever-sharper focus since, as UN interns around the globe staged protests and walkouts. International organizations, and the UN in particular, have become notorious for their lack of paid internship and entry-level positions.

As I write, myself and dozens of my fellow LL.M public international law graduates from the University of Amsterdam class of 2017 are embroiled in a seemingly futile struggle to break into a subsection of this world – that of international criminal justice. This problem is patent and pressing in the UN system generally, and yet it has particular bearing upon the institutions of international criminal law, and especially the under-fire ICC.

Though the Hague-based court and standard-bearer for international criminal justice has been facing an onslaught of think-pieces and media glamorizing regarding its alleged ‘racial bias’ since time immemorial, there are other, more tangible and less clickbait-worthy issues that needs be solved. Many of my former classmates have attempted to survive on a shoestring budget working internships before relenting and turning to the lucrative corporate private international law world in Amsterdam. Others take low-paid positions at academic research institutions or manage social media accounts for legal think-tanks in order to ‘get a foot in the door’. Whilst admirable, and of course serving a vital part of legal development, this imbalanced state of affairs serves to keep potentially brilliant lawyers from the judiciary and further adds to a field of professional commentators rather than practitioners.

The question of unpaid internships is not a purely moral or ethical one. Quite clearly, there are budget constraints and other factors that the general public are not privy to which influence the ICC’s spending priorities. Rather, the problem is that unpaid internships have a real and tangible impact on the work of the ICC and the development of international criminal law generally. The institution should prioritise a sustainable policy of centralized training in order to avoid a crisis of legitimacy. Should a crisis of legitimacy arise, the moral aspect of the debate will come into play regardless of the court’s best intentions.

Of course, it would be absurd to suggest that a lack of a salaried staff of interns is the root cause of the ICC’s woes, but it does represent a useful symbolic representation of a more abstract issue that touches at the roots of the ICC’s legal culture – that of a lack of a sustainable, future-orientated approach to the persons that will eventually people its halls and be tasked with delivering the aforementioned international criminal justice, and the effect this has on the court’s overall trajectory.

The link between inefficiency and unpaid internships may be extrapolated as follows: The ICC’s work, and that of its forebears, is often accused of being hampered by a clashing of legal cultures and an unsettled legal practice engendered by the attempted fusion of continental and common law procedures. It has been argued by scholars that this approach leads to inefficiency and a lowering of fair-trial standards.

Specifically, Jackson and Brunger note that

“the process of harmonization has developed in a pragmatic manner on the basis of those procedures that seemed most accessible to hand and has resulted in a procedural convergence of largely ‘adversarial’ structures. Yet such a convergence…was achieved without a shared consensus as to how these structures were to be utilized for the purposes of doing international justice. This absence of consensus created a vacuum for an inevitable fragmentation of practice.”

As a standard-bearing court, these kinds of issues leave the ICC more vulnerable to external criticism, and rightly so. Any globalized institution that acts outside national sovereignty should be held to the utmost standards of fairness and legitimacy. This means that efficient, fair and transparent procedures at the ICC are of paramount importance. The work of the ICC must be the benchmark standard for international criminal justice and as such any missteps are detrimental to perceptions of legitimacy – and hence key to the project of international justice

Currently, the ICC more resembles an ad hoc body of lawyers with already settled ideas of what legal practice entail, which then necessitates an overly flexible and inefficient system to compensate. For example, the abstract system of free proof evidence, in which evidence is freely admitted and weighed in totality at the end of proceedings, has come under fire by scholars like Peter Murphy, who accuse it of placing the accused in a precarious position regarding their trial rights by creating ‘evidential debris’. He notes that “in addition to making trials much longer and more complex than they need be, such evidential debris poisons the record and ultimately makes it more difficult for judges to assess the weight of the evidence and arrive at the truth”. Scholars have further questioned issues such as the role of the judge in proceedings, whether rules of evidence should be applied, and what role witness statements should play. These are all sharply distinguished in the various legal traditions, and it is unsurprising that lawyers trained in one or the other have difficulty accepting and putting into practice that with which they are not familiar.

These ingrained approaches, continental and common and all the various substrata of them, are baggage brought with lawyers from domestic jurisdictions, and that this has carried on happening despite the ICC now being operative for a generation, may be partly ascribed to the policy of unpaid internships and related matters pertaining to a failure to invest in young lawyers. The combined practice of unpaid internships and a lack of centralized, specialized legal training forces aspirant lawyers and advocates like myself and many of those in my former classes to train at domestic levels (if we have not given up on ICL entirely) in hopes of coming back to the ICC with sufficient experience to gain a paid position – and hence reinforces the paradigm of clashing legal cultures, and hence contributes to the aforementioned unsettled legal practice and inefficiency of procedure. And of course, it is those from developing countries who labour most under the living costs of The Hague, (consistently ranked among the most expensive cities in Europe) – those that the work of international courts most affect, and who have most of a stake in the success of the court.

Given the uniquely limited range of entry-level positions and the internships that take their place in such a system, these few opportunities simply must be made as accessible as possible to as many aspiring criminal lawyers as possible. Paying interns and centralizing and prioritizing training and practical education from the ground up should thus be a core component of a new strategy to address inefficiencies. It would go some ways to ensure that international criminal lawyers are exactly that – not criminal lawyers who are forced to adapt to a system which does not have a jury, or rules of evidence admission, or does have a complete dossier approach, or does allow hearsay, or any other example from the wide range of clashes at the ICC.

Obviously, paying interns will not resolve the issue entirely. There is no international bar exam, and domestic qualifications will remain necessary for the foreseeable future should young lawyers wish to eventually appear in court. But attracting young persons to a secure financial working environment will allow for a focusing of effort and ideas; interns that will learn the workings of the ICC and international criminal law before they are influenced by domestic systems – lawyers whose foundations are laid in the field, upon which to build, rather than the other way around. The distinction is fundamentally important, and should serve to guide the ICC in developing a workable strategy.

It would appear that few career paths are more difficult to navigate, more frustrating to tread, more confusing to reach the top of, than international criminal law. Young aspirant international criminal lawyers need a measure of reassurance that the field is developing and welcoming to those who wish to practice, as opposed to comment or proselytize. We cannot all be academics and scholars; a horde of know-better’s pressganging a small body of litigators, prosecutors and defence counsels. The ICC simply has to broaden its approach or we will wallow in the politics we so desperately need to be divorced from, risking being known as a profession of chatter rather than action.

Case selection controversy may eventually be resolved as it is not a constitutive element of the ICC in that it does not affect its structure or function. The same cannot be said of the bare-bones composition of the court from the ground- up – and by prioritising legal training and reforming a vision for the future of ICL, the court would do better in ensuring long-term sustainability. Paying its interns would be a huge step in that direction.