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25 Jul

[Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law and Global Visiting Professor at New York University School of Law.]

I am grateful for the three incisive and insightful comments. Due to space limitations I will not be able to do justice to any of the comments in this response, but they will certainly help in my future work on this subject. I will use this brief response to clarify some parts of my argument and to situate the article in my broader research project.

To clarify my argument and hint at its potential significance I will use the pending case before the International Court of Justice concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). The dispute focuses on Japan’s discretion to issue “special permits” for killing whales arguably for scientific research as provided by Article 8(1) of the International Convention for the Regulation of Whaling (1946). The said Article allows a member state to issue permits and impose conditions “as the Contracting Government thinks fit.” Japan interprets this obligation as a “good faith” obligation, arguing that neither the International Whaling Commission nor the ICJ “have power to approve or disapprove the issue of a special permit.” (Public seating, 4 July 2013, afternoon, verbatim record, p. 36 paras. 23-24). Australia argues, however, that Japan must demonstrate the scientific value of the permits because “Japan does not ‘own’ the whales it catches.” (Public seating, 10 July 2013, morning, verbatim record, p. 65 para. 23). As stated by Professor James Crawford, arguing for Australia: “In respect of resources in the international public domain, to recognize a wide margin of appreciation is, in effect, to allocate those resources to the exploiting State.” (id., para. 22). Given the global commons problem, continues Crawford, the Convention requires “a proper showing … that [research] proposals are genuinely motivated by scientific considerations and adapted appropriately to achieve scientific goals.” Moreover, Japan must “consider seriously” the views of the IWC and its subsidiary organs, otherwise the conclusion will be “that the project is not being carried out for the purposes of scientific research, but for some other purpose inconsistent with the Convention.” (id. at para. 26).

The trusteeship concept that I develop suggests that states are subject to rigorous accountability requirements not only with respect to their treatment of endangered migratory species, but also when they are using transboundary resources they share with a few other states, and even when they manage their “own” resources. For states do not fully “own” their “own” resources. Stated otherwise, following the German Basic Law concept of ownership (Article 14), “Ownership entails obligations. Its use shall also serve the public good.” As discussed in my article (at pp. 311-12), the same rationale applies with even greater force to states.

To some extent, such accountability obligations are minimal because they do not restrict the scope of sovereign discretion. If Australia is right, Japan would have to provide more data and expert analysis to prove the scientific basis for its decision to permit the killing of whales, and pay serious attention to the views of the IWC and others. But the ultimate decision would stay with Japan. Others may remain skeptical, and their suspicion may even have a stronger basis, but nothing more. This would be an “imperfect” obligation, in the sense that it would be a non-justiciable one; but an imperfect obligation is not necessarily an ineffective one, as anyone exposed to public shaming will appreciate.

The question whether the ICJ may question Japan’s explanation is a different and rather difficult one, which requires further deliberation. In my article I identified this as a question to be addressed at a later stage. Such an inquiry will have to assess the legitimate scope of review of national policymaking by external bodies such as international tribunals, in light of concerns with the impartiality of the judges, their competence to make better judgment calls than the reviewed sovereigns, and the potentially stifling impact of their interventions on domestic democratic processes. It may make sense, for example, for the reasons stated by Crawford, to authorize international tribunals to review national discretion when it applies to the use of migratory species but not to the management of domestic stocks.

This minimalist vision seems insufficient for von Bogdandy and Schmalz who want to “Push[] Benvenisti Further.” The opposite push comes from McCrudden who regards my position as “anything but ‘modest’ or ‘minimal’.”

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25 Jul

[Christopher McCrudden FBA is Professor of Human Rights and Equality Law, Queen’s University, Belfast, William W Cook Global Professor of Law, University of Michigan Law School, and Leverhulme Major Research Fellow (2011-2014). I am particularly grateful to Kathleen McCrudden who provided helpful comments on an earlier draft.] Eyal Benvenisti asks how far, if at all, national sovereign states are under an obligation to take into account the effects of their internal decisions on those outside the boundaries of the state. We can consider his argument either at a very high level of abstraction, or test his (and our) intuitions by using a worked example of a practical problem that raises the issue he discusses. I prefer the latter approach.

An example

Over the past couple of years, there has been an intense debate in the United Kingdom over whether the UK should leave the European Convention on Human Rights; as part of this larger debate, there has also been a narrower debate over whether (and if so how) the UK should implement the decisions of the European Court of Human Rights on prisoner voting (an issue on which I have blogged earlier elsewhere).  The way in which both the broader and narrower debates are conducted have potentially adverse effects well beyond the UK. The sight of the House of Commons defying the Court on prisoner voting, or high-ranking members of the Government arguing that the UK should leave the Convention, has potentially damaging effects on the authority and legitimacy of the Court and the Convention in other states. It is one thing for the robust UK debate to be picked up in other stable constitutional democracies with good human rights records.  It is another thing entirely where the British debate is transmitted to barely democratic European states with a debatable human rights record, and a weak commitment to constitutionalism. In the latter states, the British ‘defiance’ gives aid and comfort to altogether darker forces, which see the British resistance as legitimizing their own visceral resistance to the cosmopolitan liberal vision that the Court and the Convention embody.  Is the UK under an obligation to take into account the adverse effects that the British debate, and any decisions flowing from it, may have elsewhere? There is, of course, both an empirical as well as a normative issue in play here.  For the purposes of this post, I don’t want to get embroiled in the empirical question of whether the UK debates do have such effects externally (although I’m quite prepare to believe that they have). The question I’m interested in is whether, assuming that there are such external effects, the UK ought to take these into account. It is at this point that Eyal Benvenisti’s article is powerfully relevant, since it addresses directly the morality (as well as the legality) of ignoring what economists call ‘externalities’ in domestic decision-making.  On what might we base an obligation (whether moral or legal) to ‘internalise’ these externalities, for example in the debate over the UK’s continuing membership of the ECHR, or whether to implement the ECtHR’s decisions?

Benvenisti’s argument

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25 Jul

[Jan Klabbers is Professor of International Organisations Law and Director of the Centre of Excellence in Global Governance Research at the University of Helsinki.] Much of the more serious theoretical reflection in international law aims to bring apology and utopia in alignment. This may be structurally impossible, as Martti Koskenniemi suggested a quarter of a century ago, but aiming to bridge the gap between the two is nonetheless a laudable enterprise. Eyal Benvenisti’s recent contribution to the American Journal of International Law comes closer than many before him. Partly this is because, unlike many others, Benvenisti takes both apology and utopia seriously: he is realist and idealist rolled into one. For him, sovereignty is not a bad word but a respectable concept, providing the space for legitimate exercises of self-determination. At the same time, he is aware that with globalization, many sovereign states (as traditionally conceived) are no longer able fully to help and protect their citizens. Globalization erodes independence and thus undermines self-determination – hence, sovereignty needs to be reconceived in order to take non-citizens into account and, what is more, is indeed undergoing such a re-conceptualization in positive international law. Benvenisti has written an excellent piece, in his customary lucid and thoughtful style. The paper contributes to global ethics in a fairly novel way by positing a combination of cosmopolitanism and parochialism that seems reasonable and workable; it therewith adds to other recent studies engaged in similar enterprises, albeit from different angles (think of Kok-Chor Tan’s Justice without Borders, or Toni Erskine’s Embedded Cosmopolitanism). It contributes to international law by demonstrating that international law as it currently stands can indeed be seen to offer support to such a novel re-conceptualization of sovereignty as trusteeship. I have only one major gripe with the article, and that is that it is too short. It is too short in two ways: it neither allows for the argument completely to unfold, nor does it allow for the empirical materials to be carefully discussed. These are both obviously restrictions stemming from the format of a journal article, so perhaps the thing to question is the popularity (well-nigh sanctity) of the format, or the link between medium and message: the medium dictates the message. My first gripe relates to the space needed for normative argument.
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25 Jul

Almost a quarter of a million Colombians have been killed in the country's internal conflict since 1958, most of them civilians, according to a government-funded report. Forces loyal to President Bashar al-Assad killed at least 15 Palestinians, mostly women and children, in a rocket attack on a rebel-held refugee camp on the southern edge of Damascus. The United States' National Security Agency's warrantless...

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25 Jul

Eyal Benvenisti's excellent piece sets the stage for a substantial research agenda (hence the need for a major project to pursue its many possible applications). Benvenisti considers aspects of his trusteeship norm largely in the realm of international tribunals. There is also the possibility of direct internalization. I read the piece through the optic of US decisionmaking. My first thought was,...

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25 Jul

Last week, the ECJ handed down its judgment on the Yassin Abdullah Kadi appeal, marking the end of a decade long legal battle involving the Security Council’s consolidated anti-terrorism lists, and their implementation in the EU. The decision is available here.   As I noted in a post last fall, Kadi was delisted by the UN Ombudsperson in October of 2012, and so this judgment does not affect his status. Instead, this appeal against the ECJ’s decision in Kadi II raises the issues of effective judicial protection and standard of judicial review.  In an earlier decision, the ECJ had already established that “Courts of the European Union … ensure review, in principle the full review, of the lawfulness of all Union acts … including review of such measures as are designed to give effect to resolutions adopted by the Security Council.” (Para. 97)  These rights include respect for the rights of the defense and the right to effective judicial protection. What is notable about this latest decision is that:
  • The Court finds that judicial review is indispensable to ensure a fair balance between the maintenance of (i) international peace and (ii) international security (para.131), suggesting that Courts will play a role in the collective security going forward, particularly where fundamental rights are at stake.
  • Despite the improvements in the listing / delisting process represented by the creation of the UN Office of the Ombudsperson, the Court decides that UN processes do not “provide to the person whose name is listed on the Sanctions Committee Consolidated List … [with] the guarantee of effective judicial protection.” (133)
  • This decision may set a new standard for the review of Security Council acts in other fields.
Another notable aspect of the judgment is its emphasis on a high level of procedural and substantive review.  The ECJ stated that:
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24 Jul

[Armin von Bogdandy is Director and Dana Schmalz is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law] In another seminal piece, Eyal Benvenisti continues his well-balanced middle course between utopian cosmopolitan aspirations and resigned state pragmatism, this time by reconstructing contemporary sovereignty. Like many others, he considers the Westphalian model of state power to be neither an appropriate description of today’s world order nor a normatively appealing model for the future. Starting from an assessment of democratic deficits and dilemmas arising from limited space and resources, Benvenisti shows why a different conception of sovereignty is morally required. He then accomplishes a brilliant reconstruction of important court decisions and doctrinal evolutions that support his normative findings. Within this reconstruction, Benvenisti integrates a great variety of legal phenomena, ranging from a vessel’s right to innocent passage, to consultation duties in WTO-law, to the responsibility to protect. These normative and legal reconstructions are impeccable, and we are sympathetic to the general thrust of Benvenisti’s argument. However, we suggest a more pluralist approach, mainly in two respects. For one, we would complement Benvenisti’s private law paradigm with a stronger focus on international public authority, which plays little role in his reconstruction. Depending on the subject matter and the institutions available, some issues might be resolved more effectively and inclusively through international institutions. At the same time and on a more basic level, we suggest construing the international sovereignty of a country in a more pluralist manner, taking into account its relevant constitutional law. We think that Benvenisti’s legal reconstruction can be thickened, in this way, while avoiding his problematic reliance on humanity as a source of public authority. International sovereignty has changed from a founding concept to a functional concept: once, international sovereignty provided a point of closure where legal thinking could stop. Georg Jellinek perfectly captured this paradigm in 1882 when he stated that everything could be explained “through sovereignty and from sovereignty”. Today, as Benvenisti’s analysis shows, it is far better to conceive of international sovereignty functionally, so as to serve other principles, such as self-determination, human rights, or reasonable allocation of resources. Pushing Benvenisti’s reconstruction further, we propose that the functional concept should also be conceived as relative: The specific meaning of a state’s international sovereignty should be informed by its constitutional law and practice. Benvenisti’s article perhaps presents the world in an overly uniform manner. To start with his fabulous image of the “small apartment in the densely packed high-rise”: Great as the picture is, it neglects huge differences between states. Sticking with the metaphor, we might say that some owners possess special voting rights in the owners’ association, have special access to the common property, and own a mansion out of town, to which they can escape when fed up with the neighbors. Others, by contrast, do not have such privileges, and still others have pooled their rights for common exercise. On a more legal note, the constitutional orders of China, Germany, or Lebanon enshrine deeply different understandings of the international order and the country’s place therein. A reconstructive proposal should take those differences into account. Accordingly,  international sovereignty could be informed by the respective constitutional openness towards common projects and willingness to recognize shared responsibility. Yet, how can such relativization take place without endangering the autonomy of international law and the equality of states under international law?
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24 Jul

[Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law and Global Visiting Professor at New York University School of Law.] We live in a shrinking world where interdependence between countries and communities is intensifying. This interdependence tests the limits of the traditional concept of sovereignty which crystallized at a time when distances...

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24 Jul

South Sudan’s President Salva Kiir Mayardit has fired Vice President Riek Machar Teny and all his cabinet ministers. Australia is to investigate reports that asylum seekers at one of its detention camps in Papua New Guinea are being raped and tortured. Syrian rebels claim they have captured the entire western area of Aleppo. Russian and Iranian media are reporting that Vladimir Putin will meet Iran's...

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23 Jul

Outside of Kigali, no one really doubts that the Rwandan government and military have financed, supplied, and at times even directed M23's actions in the DRC. But it's still nice to see the US government acknowledging that fact: It is the first response by Washington to recent M23 clashes with Congolese government forces near Goma, the largest city in the DRC's...

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23 Jul

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Director, Whitney R. Harris World Law Institute, at Washington University School of Law] I found the comments of my colleagues very thoughtful and helpful to my own continuing engagement with the law in this area.  As Elies points out, sovereignty concerns are indeed central to the original conceptualization of crimes against humanity at Nuremberg, and remain a preoccupation of the Rome Statute that the ICC’s judges are charged with interpretation.  As she notes, this thread of the Kaul dissent is unobjectionable.  She then turns to the question of “human-ness” – the focus of the Rome Statute and indeed, all of modern international criminal law, on the protection of “humanity” as a second value embedded in Article 7 of the Rome Statute.  I agree with this, and with Darryl’s understanding of much of the chapeau element’s purpose being essentially jurisdictional in nature – a way of sorting out permissible and impermissible exercises of international jurisdiction that will keep cases that belong in national courts in those courts and cases that need to be adjudicated internationally at the ICC (or elsewhere).  Indeed, one of the most interesting developments in international criminal law has been the elaboration of a fairly clear framework for the elaboration of a set of jurisdictional principles – complementarity, gravity, the widespread or systematic nature of the harm, the victim or the harm caused some specific damage to an international interest (i.e., attacks on UN peacekeepers), the shocking nature of the harm, etc. – to sift cases properly before international criminal courts from those properly tried elsewhere.  These jurisdictional bases overlap, but they are, by and large, alternative, not cumulative or, in the Rome Statute system, are directed to admissibility rather than “jurisdiction” strictly speaking.  Certainly, by electing the formulation “state or organizational policy,” it seems that the drafters of the Rome Statute were suggesting that non-state actors, if they committed attacks upon civilians that were sufficiently widespread and systematic, could perpetrate the kinds of atrocity crimes the Rome Statute was adopted to address; which is why I believe the majority in the Kenya case had the better view. Likewise, although I cannot comment on the Gbagbo decision as it is being appealed by the Prosecutor (assuming leave is given), I am grateful to Darryl for pointing out how the Majority exhibits the same trend I highlight in my article which is to disaggregate the statutory requirements and create new elements required to establish crimes against humanity not required by the Rome Statute.  As I note in Crimes Against Humanity in the Modern Age, one of the strangest of these is the requirement, first surfacing as a negative in obiter dictum, then apparently copied into other opinions as a new element, that the Prosecutor must identify what group – national, ethnic, religious, etc. -- the civilians belong to in order to demonstrate the existence of an attack.  The introduction of this language into the Court’s case law is unfortunate.  It may be useful to describe the group to demonstrate a policy to attack all those of a certain ethnicity, but unless persecution or genocide is charged, the appurtenance (or not) of victims to a particular group is simply irrelevant to finding that attack upon civilians has been carried out. Darryl’s comments made me wonder whether I completely support the reintroduction into the ICC Statute of the “state or organizational policy” requirement.
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23 Jul

[Elies van Sliedregt is the Dean and Professor of Criminal Law at VU University Amsterdam] In this article Leila Sadat convincingly makes clear that CAH are central to international prosecutions. She points to the importance of CAH at the ICC with its potential to intervene in peace-time. Sadat underscores the importance of CAH as gap-filler; it provides for jurisdiction in the absence of an armed conflict and addresses discriminatory campaigns that do not qualify as genocide. The independent existence of CAH has become clearer over the years. CAH prosecutions capture key social harms and particular patterns of victimization, such as ethnic cleansing or sexual slavery. While CAH have gained importance as an independent category of crimes and according to Sadat “have emerged from the shadow of Nuremberg” (p. 336), we cannot ignore that CAH’s raison d’être is that of solving a jurisdictional problem. This goes back to the period before Nuremberg. For centuries international law has recognized the enemy of all mankind, the hostis humani generis. Pirates, who had no allegiance to a state and who committed crimes beyond the jurisdictional control of States, were regarded as the enemy of all mankind. With the interests of ‘mankind’ affected, all nations had a right to fill a jurisdictional void and exercise (universal) jurisdiction. Similarly, the notion of ‘humanity’ justifies intervention by way of criminal law enforcement. When States fail to protect, or are engaged themselves in harm to the security and subsistence of their subjects, they forfeit their privileges as a sovereign entity; other States or an international court may step in. While both ‘mankind’ (for piracy) and ‘humanity’ (for CAH) provide a justification for intervening in domestic affairs, the underlying reasoning and interests differ. Piracy more directly harms the interests of a multitude of States; self-interest prompts the exercise of jurisdiction. CAH, on the other hand, can be confined to one country.  They affect the interests of other States in that they shock “the conscious of mankind” (UK prosecutor Shawcross in his opening statement in Nuremberg). They are so egregious that it is in the international community’s interest that they are punished. This is what Arendt meant when she referred to the Holocaust as “crimes against mankind committed on the body of the Jewish people”. Viewing CAH through the prism of jurisdictional justification makes clear that sovereignty is a concern with CAH. For the international community to intervene, CAH must qualify as an international harm. They must shock the conscience of mankind. While this leaves pertinent questions unanswered, (is there a world community? with a common conscience?) it is clear that CAH must reach a level that distinguishes them from domestic crimes. The contextual elements of CAH, that crimes are committed as part of a widespread or systematic attack pursuant to a State or organizational policy, must ensure that this level is met. Judge Kaul is sensitive to sovereignty concerns. In his dissenting opinion to the Article 15 Kenya Decision he opines that the policy element is a decisive, characteristic and indispensable feature of crimes against humanity; it distinguishes ordinary crimes from international crimes and should therefore be interpreted narrowly. Sadat criticizes Judge Kaul’s view for denying CAH’s modern meaning, as a residual category of crimes that protect human values, values the ICC was established to protect. ‘Organizational’ in Article 7(2)(a) should include non-State(-like) organizations. What to think of this disagreement? 
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