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Emerging Voices: Is the Margin of Appreciation Accorded to European Union Member States Too Wide, Permitting Violations of International Law?

by Jenny Poon

[Jenny Poon is a Doctoral Candidate at the Faculty of Law of Western University, Canada and a Barrister & Solicitor in Ontario, Canada. The topic addressed in this post is based on a paper entitled State Discretion on Asylum Claims Procedures: Violation or Adherence to Non-Refoulement? All websites were accessed on 22 July 2016. The author would like to thank Dr. Valerie Oosterveld for reviewing an earlier draft.]


The margin of appreciation is a creation of the European Court of Human Rights (ECtHR), in which the ECtHR grants European Union (EU) member states deference when the national authorities use their discretion to carry out duties under international law, which, it is argued, may at times be accorded so widely, that the margin of appreciation may permit member states to derogate from their international law obligations. The idea that the margin of appreciation is not yet a settled area of the law is reiterated by Greer in his paper. The doctrine first appeared in the ECtHR’s jurisprudence in the case of Cyprus Case (Greece v. the United Kingdom). Despite having an established presence in the jurisprudence of international tribunals, the extent of the doctrine is nonetheless uncertain as argued by Shany in his paper. For instance, international courts and tribunals have issued conflicting decisions on the use of the margin of appreciation. Most notably, the ECtHR applied the doctrine in the Handyside decision, stating that the doctrine applies to domestic legislators and to judicial bodies, while World Trade Organization (WTO) Dispute Settlement Body and its Appellate Body has stated in the Asbestos case that the doctrine applies only to WTO members. In the former case, both domestic legislators and judicial bodies are given a margin of appreciation when applying the law, while in the latter case, only national authorities of WTO member states are given a margin of appreciation when making discretionary determinations.

Despite the law being unsettled with regards to margin of appreciation, this doctrine is nonetheless applied by the ECtHR to show deference to EU member states when the member states use their discretion to carry out international law obligations. Consequently, this interpretation of the margin of appreciation permits the violation of international law in the context of asylum, where it allows EU member states to derogate from their duties of ensuring procedural safeguards, creates multiple and thus inconsistent interpretations, and permits state interests to be placed above the interests of asylum claimants. Clarity in the law is therefore warranted with regards to defining the extent to which “margin of appreciation” applies, and where the line must be drawn to ensure that the vulnerabilities of asylum claimants are properly addressed.

A wide margin of appreciation permits violation of international law

The first argument I wish to make is that a wide margin of appreciation permits EU member states to derogate from their duties of ensuring sufficient procedural safeguards for asylum claimants. International law obligates States to adhere to the procedural safeguards including according asylum claimants with the opportunity to be heard and the right to appeal in the context of an expulsion order pursuant to Article 32(2) and 32(3) of the Refugee Convention. Procedural safeguards come in many forms, which can include the safeguard to ensure that asylum applications are examined for their merits and not permitting instances of bias to affect the decision-making process. This is illustrated in the case of OS v. Ministry of Interior, where the Supreme Administrative Court of the Czech Republic held that the Ministry of the Interior erred in basing its asylum decision to reject an application on an inaccurate assessment of Turkey, thus giving effect to biased decision-making. The Ministry had exercised its margin of appreciation by basing its decision on a biased country of origin report. Having based its decision on a report that was political and that was not an accurate assessment of Turkey at the time, the Ministry of the Interior had biased decision-making. This case demonstrates that a wide margin of appreciation enables the EU member state to derogate from its international duty of ensuring procedural safeguards for asylum claimants, thus violating international law.

Next, I argue that a wide margin of appreciation permits EU member states to create multiple and thus inconsistent interpretations, leading to inconsistency and unpredictability of the law.

When States exercise their margin of appreciation too widely, it permits the creation of multiple and thus inconsistent interpretations of their international law obligations. The ECtHR case of Hirsi Jamaa and Others v. Italy illustrate the differences in interpretation among EU member states on their duties under international law. The ECtHR held that differences in interpretation on asylum decisions can result where there are bilateral treaties signed between the first and subsequent asylum-receiving EU member states. This case illustrates that a wide margin of appreciation permits EU member states to interpret their international law obligations differently. While differences in interpretation may be warranted in some circumstances, such as to accommodate for the unique geopolitical circumstances of different EU member states, if the margin of appreciation is too wide and thus improper, it creates too much room for EU member states to interpret their international law obligations, and result in a divergence among EU member states so wide that would not justify the doctrine’s original purpose. Another problem with a wide margin of appreciation is that it may lead to an increased likelihood of multiple and thus inconsistent interpretations, which may increase the possibility of international law being violated by EU member states.

Finally, I end with the proposition that a wide margin of appreciation permits EU member states to place their state interests above the interests of asylum claimants. EU member states exercise their margin of appreciation when they process asylum applications based on discretion which sometimes entails political considerations rather than merits. An example can be taken from the case of Ireland v. The United Kingdom, in which the ECtHR held that “national authorities are in principle in a better position than the international judge to decide [on the derogation from Article 15 of the European Convention on Human Rights…]. In this matter Art 15(1) leaves the authorities a wide margin of appreciation”. This case is used as an example to illustrate that the margin of appreciation may be accorded too widely in the case of derogation in times of emergency (Article 15), which, when the derogation is based solely upon political criteria, may permit EU member states to violate international law. For example, depending on the political agenda at the time, the EU member state may choose to interpret its duty to process asylum applications either narrowly or broadly, according to state interests at the time, leading to uncertainty and unpredictability of the law for asylum claimants. The case demonstrates that where the margin of appreciation accorded to an EU member state is too wide, the member state may utilize the doctrine to their advantage to promote their political agendas, often at the expense of asylum claimants. This motivation to accomplish state-interested goals permits the violation of international law in instances where interests of the EU member state are placed above the interests of the asylum claimant. It is argued that a wide margin of appreciation allows the EU member state to misuse the doctrine to circumvent their international law obligations. While some may argue that a flexible margin of appreciation would encourage the EU member state to sign on and support the norm, the concern is that, too much flexibility and therefore a margin of appreciation that is accorded too widely, would be detrimental to the asylum claimant given that a well-resourced member state may trump individual rights at any time where it would be in the member state’s interest to do so.


The purpose of this post is to consider the effects of the margin of appreciation doctrine in the context of asylum, where at times this can result in EU member states circumventing their international law obligations. I hope that illustrating the doctrine in this context can encourage the debate on proposing solutions for this perceived problem. It is important that the rights of the vulnerable such as asylum claimants are safeguarded against well-resourced mighty State powers. Therefore, the proper application of the margin of appreciation needs to be clarified in order to avoid EU member states acting outside of the permitted boundaries of the margin of appreciation at the expense of the asylum claimants. One proposed solution is to enlarge the role of the ECtHR to better define what constitutes ‘margin of appreciation’ and construct a framework within which EU member states may operate, while safeguarding the rights of the vulnerable.

Emerging Voices: Can Foreign Investors Enforce International Investment Law in U.S. Courts?

by John F. Coyle

[John Coyle is an Assistant Professor at the University of North Carolina School of Law.]

On June 14, 2016, the Islamic Republic of Iran initiated proceedings against the United States before the International Court of Justice (“ICJ”), alleging that the United States had violated the 1955 Treaty of Amity, Economic Relations, and Consular Rights (“Treaty”) between the two nations.  Iran claimed, inter alia, that the United States had discriminated against Iranian companies, failed to accord these companies the most constant protection and security, and expropriated their property without compensation.  In support of its claim, Iran noted that the ICJ had jurisdiction to hear the dispute pursuant to Article XXI(2) of the Treaty, which provides that “[a]ny dispute . . . as to the interpretation or application of the present Treaty . . . shall be submitted to the International Court of Justice.”

Similar treaty provisions can be found in more than a dozen other treaties of friendship, commerce, and navigation (“FCNs”) negotiated by the United States in the two decades following the Second World War.  At the time, these agreements to submit to the jurisdiction of the ICJ was viewed as a significant milestone in the peaceful resolution of international investment disputes.  In the decades that followed, however, nations increasingly turned to bilateral investment treaties (“BITs”) and investor-state arbitration to resolve such disputes.  It is today common in the academic literature for authors to identify two—and only two—fora whereby the rights granted to foreign investors under FCNs or BITs may be enforced.  The first is the ICJ.  The second is an international arbitral panel.

In a recent paper, Jason Yackee and I argue that this account overlooks a third possible forum—the courts of the United States.  We argue that the FCNs negotiated by the United States in the 1940s and 1950s, most of which remain in force, provide foreign investors with domestically enforceable rights. These FCNs contain promises of favorable substantive treatment that are quite similar to the rights commonly extended to investors through BITs and investment chapters in free trade agreements such as NAFTA and CAFTA.  Unlike NAFTA and CAFTA, however, the FCNs are self-executing and give rise to a private right of action. This means that their provisions may be directly enforced in U.S. courts by private litigants.

This ability to access substantive international investment law through domestic litigation rather than international arbitration is of significant practical and theoretical importance.  It could lead foreign companies to rethink their approach to asserting indirect or regulatory takings claims against governmental entities within the United States.  The choice available to foreign investors who believe that they have suffered a regulatory taking has long been viewed as binary. The investor may either bring a constitutional takings claim before a U.S. court or a treaty-based expropriation claim before an international arbitral tribunal. There was no way—or so conventional wisdom held—for a foreign investor to invoke the enhanced protections afforded by the treaty in domestic litigation. The FCNs make it possible, at least in principle, for foreign investors to litigate takings claims in U.S. courts under international investment law standards rather than constitutional ones.

The ability to access the substance of international investment law through the FCNs also suggests that foreign investors may in some cases enjoy domestically enforceable rights under those treaties that are superior to those accorded to citizens under the U.S. Constitution. The U.S. Supreme Court held in Penn Central that courts must balance three factors in determining whether a regulatory taking has occurred under the Takings Clause: (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation interferes with investment-backed expectations, and (3) the character of the government action. In theory, the test constitutes a neutral attempt to balance the interests of the government against the interests of private property owners. In practice, the test typically results in a finding that no taking has occurred and that no compensation is owed to the property owner.  The standard of protection for regulatory expropriations under international investment treaties, by contrast, is generally viewed as more demanding than the standard of protection set forth in the Takings Clause. Indeed, when the U.S. Congress became aware of this divergence in 2002, it enacted a law directing U.S. trade negotiators to “[e]nsur[e] that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than United States investors in the United States.”  The treaty negotiators subsequently modified the text of the U.S. Model BIT to effectuate this goal for future agreements.  However, these textual modifications do not affect treaties that were then in existence, a list that includes all of the FCNs.

We acknowledge that there are a number of practical obstacles that would need to be overcome before the FCN revival could successfully occur.  The first is the well-documented reluctance on the part of U.S. judges to directly enforce rules of international law in the absence of a statute expressly directing them to do so.  The second is the fact that FCNs couch their promises to investors in language that is sometimes different from the domestic-law analogues with which U.S. judges are familiar. Judicial unfamiliarity with the language of international investment law may make it more likely for judges to restrict private access to the treaties.  The third obstacle is that U.S. courts have, at least historically, been reluctant to grant rights to foreign nationals while denying these same rights to U.S. citizens. Under our argument, foreign investors would be asking the courts to enforce a treaty provision granting rights to foreign companies that are arguably superior to those enjoyed by U.S. citizens.  While there are scattered precedents in which U.S. courts have recognized such rights in the past, contemporary judges may prove resistant to the idea in practice.

There is also at least one significant doctrinal obstacle that would need to be overcome—sovereign immunity.  In the United States, the state and federal governments generally enjoy sovereign immunity unless they have waived this immunity or consented to suit.  The Supreme Court has stated that the Takings Clause amounts to a de facto waiver of federal sovereign immunity for suits in which a taking is alleged.  Some scholars have argued that the Takings Clause also abrogates state sovereign immunity for constitutional takings claims.  If the takings claim were to be framed as a treaty violation, rather than a constitutional one, then it is unclear whether the state and federal governments could invoke sovereign immunity as a defense.  On the one hand, the Fifth Amendment could be read as a waiver of sovereign immunity with respect to treaty-based takings claims as well as constitutional ones.  This argument derives support from (1) the fact that the text of the standard treaty provision relating to takings closely tracks the text of the Fifth Amendment, and (2) the fact that foreign sovereigns generally do not enjoy immunity in U.S. courts when they take property in violation of international law.  On the other hand, the Fifth Amendment could be read to waive sovereign immunity only with respect to constitutional claims.  This argument derives support from the Supreme Court’s repeated admonition that waivers of federal sovereign immunity must be “unequivocally expressed” and the Court’s consistent practice of “construing waivers of sovereign immunity narrowly in favor of the sovereign.”  To date, there is a dearth of case law on this issue.

It is important to note, however, that sovereign immunity only presents an obstacle with respect to suits against the United States or one of the several States; counties and municipalities do not enjoy sovereign immunity.  Even if a court were to conclude that the state and federal governments could assert sovereign immunity as a defense, FCNs could still serve as a useful check on any regulatory takings conducted by U.S. counties and municipalities.

In summary, the FCNs are not historical relics. They remain in force, and they provide doctrinally meaningful legal guarantees to foreign investment in the United States due to their self-executing character and the fact that they give rise to a private right of action. While the FCNs have not played a prominent role in domestic litigation over the past half-century, it is easy to imagine how they might be relevant in future years. The U.S. government and its sub-federal counterparts interact with FCN-covered investors all of the time. To the extent that the government thinks in advance about the consequences of its actions toward foreign investors, it should at least consider the possibility that an FCN treaty might impose legally enforceable limitations on its freedom of action. Investors who feel mistreated by the government, moreover, should consider the availability of FCN-based causes of action when planning their legal responses.

Emerging Voices: A Case of Firsts for the International Criminal Court: Destruction of Cultural Heritage as a War Crime, Islamic Extremism and a Guilty Plea

by Andrea Bowdren

[Andrea Bowdren (LLM (LSE), BCL International (NUI)) is a trainee solicitor at Arthur Cox in Dublin, Ireland. All views are the author’s own.]

The trial of Ahmed Al Faqi Al Mahdi before the International Criminal Court represents a series of firsts for international law and justice. Al Mahdi is the first individual from Mali brought before the International Criminal Court, the first Islamic extremist to face charges at the International Criminal Court, the first individual to be prosecuted solely for cultural destruction as a war crime, and the first individual who has indicated an intention to plead guilty to a charge of the International Criminal Court.

Ansar Dine, a militant Islamist group associated with al-Qaeda, aimed to enforce an extreme interpretation of Sharia law throughout Mali. In the territories under its control, Ansar Dine banned alcohol, smoking and Friday visits to cemeteries, among many other restrictions. Al Mahdi’s role in the group was head of the “hisbah,” or morality brigade, enforcing sharia and “preventing vice” among the population.

In June and July 2012, Ansar Dine destroyed nine mausoleums of Muslim saints and the door of Timbuktu’s famous Sidi Yahia mosque, a UNESCO world heritage site dating back to the 15th and 16th centuries. Al Mahdi stands accused of jointly ordering or carrying out the attacks against the historical monuments, which UNESCO have described as “places of pilgrimage for the people of Mali and neighbouring West African countries.”

On 24 March 2016, the International Criminal Court judges ruled they would commit Al Mahdi to trial for one charge of the war crime of attacking “buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives” under Article 8(2)(e)(iv) of the Rome Statute. In this confirmation of charges hearing, it was stated Al Mahdi is criminally responsible:

  1. as a direct co-perpetrator under Article 25(3)(a) of the Rome Statute;
  2. for inducing the commission of such a crime under Article 25(3)(b) of the Rome Statute;
  3. for facilitating the commission of such a crime by aiding, abetting or otherwise assisting in its commission under Article 25(3)(c) of the Rome Statute; and
  4. for contrinuting in any other way to the commission of uch a crime by a group acting with a common purpose under Article 15(3)(d) of the Rome Statute.

The prosecution showed video extracts of interviews with Al Mahdi at the time of the attacks, where he explains the Islamic jurisprudence informing his actions.

On 1 March 2016, in an unprecedented move, Al Mahdi explicitly expressed his wish to plead guilty to the war crime charge. Defence counsel Mohamed Aouini has stated that Al Madhi “wants to be truthful to himself and he wants to admit the acts that he has committed. And he wants to ask at the same time for pardon from the people of Timbuktu and the Malian people.” This guilty plea has been described as a  “milestone in the history of the International Criminal Court” by chief prosecutor Fatou Bensouda. It provides both the prosecution and judges with an opportunity to reflect on how best to develop an institutional practice conducive to guilty pleas while advancing the interests of the International Criminal Court and justice.

What is the role of international law in this area? Why is the protection of cultural property important? What could this trial mean for the future interpretation of war crimes and the future of combatting terrorism?

Although the International Criminal Court has previously focused on attacks against people causing physical injury, the Rome Statute clearly provides that intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes or historic monuments is a war crime, provided they are not military objectives. Thus the Rome Statute envisages prosecutions of people like Al Madhi and recognises the effect that the destruction of cultural and religious monuments has on the psyche of the communities subjected to these attacks.

“A community’s cultural heritage reflects its life, history and identity. Its preservation helps to rebuild broken communities, re-establish their identities, and link their past with their present and future,” said Vibeke Jensen, UNESCO. Cultural heritage destruction is a powerful tool used to weaken morale and reinforce the authority of a new regime, which may have won control through violence or other criminal acts. In deciding to prosecute Al Madhi, the International Criminal Court underscored the seriousness of the destruction of cultural property and consequential psychological harm to the Malian population and highlighted the importance of accountability for perpetrators.

International Criminal Court Chief Prosecutor Fatou Bensouda told the court:

“The charges we have brought against Ahmad Al Faqi Al Mahdi involve most serious crimes. They are about the destruction of irreplaceable historic monuments and they are about a callous assault on the dignity and identity of entire populations and their religion and historical roots.”

Similarly, the Minister of Culture of Mali summarised these feelings aptly on 25 February 2013, when he called the destruction “an attack on the lifeblood of our souls, on the very quintessence of our cultural values. Their purpose was to destroy our past … our identity and, indeed, our dignity …”

Pursuing and prosecuting those responsible for cultural destruction and resultant harm could yield important changes in the way the international community approaches violent extremism and terrorism. This approach by the International Criminal Court corresponds with former chief prosecutor Luis Moreno Ocampo’s contention that combating terrorism would be more effective and humane if terrorists were treated as criminals to prosecute rather than enemies to bomb.

The trial is set to proceed on 22 August 2016 and the Chamber aims to complete the trial in a single week. This case breaks new ground for the protection of humanity’s shared cultural heritage and for the procedural future of the International Criminal Court, as it affords the Chamber an opportunity to reflect on what is best for the advancement of the interests of the International Criminal Court and international justice.

Emerging Voices: Computational Analysis of International Law-Using Text-As-Data Tools to Investigate International Investment Agreements

by Wolfgang Alschner

[Wolfgang Alschner (PhD in International Law, JSM (Stanford)) is a post-doctoral researcher at the World Trade Institute in Bern and the Graduate Institute in Geneva specializing in text as data analysis of international law.]

As international law scholars we are overwhelmed with information. The United Nations Treaty Series alone contains more than 50,000 treaties. Add to that the many thousand decisions by international courts and organizations that grow day by day. Just keeping abreast with a sub-field of international law is a full-time job. Not only academics but also beneficiaries of international law are affected by this information overkill. A recent UNCTAD report pointedly concluded that international investment law has become “too big and complex to handle for governments and investors alike”. Lest we are to drown in the rising tides of information and complexity, we need to find novel ways to digest and analyze international law materials.

Computational analysis of international law promises such a new way. Not only do computers not grow tired or grumpy when reading through thousands of documents, but they also find patterns in data that humans would not be able to spot. To be sure, robot lawyers are not going to replace human researchers any time soon – nor should they. But the interaction between computers crunching numbers and scholars interpreting results does provide new and exciting opportunities to tackle international law’s big data problems. In this post, I will highlight four examples derived from computational international investment law research that I did together with Dmitriy Skougarevskiy, which showcases some of the insights revealed through computer-assisted approaches that would have been difficult or impossible to gain using traditional human-led research.

Dmitriy and I have investigated over 2,100 International Investment Agreements (IIAs) and their 24,000 constituent articles. Using a computational approach similar to what is being employed in plagiarism detection software, we were able to empirically demonstrate four hitherto unknown or only anecdotally presumed aspects of the IIA universe relating to asymmetry in negotiations, the evolution of national investment treaty programs, the diffusion of treaty design and the innovations achieved in recent mega-regional agreements. To allow researchers and other stakeholders to engage with our findings directly and interactively, we have created the open-access website

The simple, yet powerful text-as-data procedure we employ in our research consists of four steps. First, we collect treaty full texts and split them into their constituent articles. Second, we represent each treaty and article based on its consecutive 5-character components. The phrase “shall be permitted” is thus represented as “shall”, “hall_”, “all_b”, “ll_be”, “l_be_”, “_be_p”, “be_pe”, “e_per”, “_perm”, “permi”, “ermit”, “rmitt”, “mitte”, “itted” (“_” signifies space). Third, we compare the textual similarity between two treaties or articles based on the 5-character components they have in common calculating what is formally known as a Jaccard distance – a measure of dissimilarity ranging from 0 (100% similarity) to 1 (0% similarity). The phrase “shall be permitted” and a second phrase “shall not be permitted”, for instance, are identical, except for the 5-character components “all_n”, “ll_no”, “l_not”, “_not_”, “not_b”, “ot_be”, “t_be_” due to the word “not” in the second phrase, which yields a Jaccard distance of 0.48. Finally, since Jaccard distances by themselves do not tell us much, we compare Jaccard scores across sets of documents. Such comparison allows us to see where treaty language convergences or diverges uncovering latent patterns in our data – four of which we will present here.

First of all, our metric revealed a stark asymmetry in investment treaty making. While rich countries achieve highly consistent treaty networks whose design closely corresponds to the model template they employ, poorer states are party to patchworks of textual diverse treaties. Put differently, a computational assessment of textual similarity allows us to empirically show in a systematic, objective and replicable manner that developed countries tend to be the system’s rule-makers while developing countries are its rule-takers.

Second, Jaccard distances also shed light on consistency and innovation in national investment treaty programs. Some countries like the United Kingdom have only made cosmetic changes to their investment agreements over time. The country’s network of 110 bilateral investment treaties (BITs) concluded between 1975 and 2009 is thus the most consistent of the world. Other states have continuously updated their investment treaties. Our metric allows us to detect major changes in treaty design such as when the United States revamped its model agreement in 2004. Also less well-known innovations, such as the Finish shift to a pre-establishment treaty model in 1999 that combines investment protection with capital liberalization, are made visible. Our metric thus provides a means to inductively investigate the evolution of national treaty programs.

Third, our approach enables us to trace treaty design diffusion. We observe that some countries copied and pasted almost entire treaties from third states. Israel, for instance, heavily drew from British BITs when devising its own BIT program. Hungary, Czech Republic and Slovakia, in turn, used the BITs they concluded with each other in January 1993 as templates for their subsequent treaty negotiations resulting in strikingly similar agreements. Diffusion also happens on the clause level. We discovered, for instance, that the language of a public policy exception first appearing in Article 11 of the 1985 BIT between Singapore and China later diffused to India, Mauritius and half a dozen African countries. What makes the clause special is that it was conceived and is exclusively being used by developing countries making it one of the rare treaty design innovations in investment law that is indigenous to the Southern hemisphere.

Fourth, the approach we developed allows us to assess the novelty of newly concluded agreements. The Transpacific Partnership (TPP), for instance, was initially heralded as a “new and high standards agreement”. Our metric reveals how new it actually is and how high the standards are that it sets. We found that 81% of the text of the TPP investment chapter is taken verbatim from the 2006 USA-Colombia Free Trade Agreement. The remaining 19% are mostly used to clarify and further refine already existing standards. Hence, while it is true that the TPP investment chapter sets higher standards as compared to some of the earlier BITs with which it overlaps, it is very much a continuation of prior US practice rather than an IIA 2.0.

Computational analysis of international law thus provides an efficient and effective way to investigate the hidden structures of the international investment law universe revealing new and surprising insights. At the same time, the presented research offers only a glimpse of the multitude of opportunities that computational international law still holds in store. As computers turn the flood of legal information from a burden into a resource, hitherto impossible research avenues are opening up from the quantification of international law’s fragmentation to the investigation of state practice and opinion juris in 195 countries. Exciting times lie ahead.

Akhbar Beirut S.A.L. Guilty of Contempt, STL Found: One Small Verdict for a Tribunal, a Giant Leap for International Justice?

by Ekaterina Kopylova

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor.]

On July 15, 2016, the Special Tribunal for Lebanon (STL) Contempt Judge Nicola Lettieri entered a guilty verdict against two co-accused standing trial for designedly violating confidentiality of several purported Prosecution witness identities in the case of Ayyash, et al. The special thing about this verdict is that one of the co-accused is a Beirut-based corporation called Akhbar Beirut S.A.L. It owns the newspaper and website that hosted the two articles pretending to reveal confidential information on the protected witnesses – a conduct that, in the Judge’s view, may have affected public confidence in the Tribunal’s ability to protect such information, and the potential witnesses’ determination to cooperate. Therefore, on July 15, 2016, for the first time in history a corporation was convicted of contemptuous conduct by an international criminal tribunal.

Earlier this year, the STL acquitted of similar charges another Lebanese corporation. Ironically, Judge Lettieri, who may have opened a new chapter in the history of the corporate liability in international criminal law with these two verdicts, wished he would not: throughout the two contempt matters involving the corporate accused, he consistently expressed a firm opposition to the STL’s exercise of jurisdiction over corporate entities.

Obviously, both cases set an important precedent in terms of the corporations’ principled amenability to trial before international courts, for interfering with their administration of justice or possibly other criminal conduct. They may incite other tribunals to look more closely at their law for any impediments to the punishment of corporations. The plain reading of the Rome Statute, for example, does not preclude the institution of the Article 70 proceedings against a corporation – for destroying, tampering or interfering with the collection of evidence, as may be the case. The drafters’ rejection of the corporate liability for the core crimes at the preparatory stage is not necessarily indicative of any such intent in respect of the offences against the administration of justice.

However, the cogency of the proposed model of attributing responsibility to a corporation is rather limited. Specifically, having concluded to the absence of an applicable international model, Judge Lettieri borrowed wholesale the provisions of the Lebanese criminal legislation, requiring that the following facts be established: (i) criminal liability of a specific individual; (ii) this individual’s power to act in the name of the corporation; (iii) that the individual acted on behalf of or using the means of the corporation.

Judge Lettieri reasoned as follows:

“In its decisions, the Appeals Panel highlighted the “unique link between [Lebanese law] and this Tribunal” and the Tribunal’s “hybrid nature”. I thus find significant that the corporate Accused is domiciled in and substantially operates in Lebanon. As it was foreseeable from Lebanese domestic law that certain conduct might give rise to corporate liability, I consider that looking to the material elements of the pertinent Lebanese law would not violate the rights of the Accused; particularly in the absence of contrary provisions in the Tribunal’s Statute or Rules. Finally, I am mindful that, in addition to being the domicile of the corporate Accused, Lebanon is where the alleged acts and conduct in this case occurred and more broadly is at the heart of the Tribunal’s mandate”.

From this reasoning, it is unclear whether Lebanese law is intended generally to govern corporate responsibility at the STL, or whether the applicable law will each time be determined by one or a set of connecting factors, such as the accused’s place of registration, place of business, and/or place of crime.

On the plain reading of the appeals decision, the Appeals Panel is tending towards the second option. In affirming Judge Lettieri’s reasoning, it circumscribed its scope of application to the facts and circumstances of the matter under review, stating: “In light of these factors, the Appeals Panel finds that, in this case, the elements for the attribution of criminal liability to legal persons are to be found in Lebanese law under Article 210 of the [Lebanese Criminal Code]”.

There is nothing inherently flawed about the connecting-factors-based approach to the choice of law governing the corporate accused’s liability. However, it makes no contribution to the development of a general international corporate criminal liability concept.

In developing such concept, inspiration should be sought elsewhere in international law. The law on the responsibility of international organisations for internationally wrongful acts may be informative. The 2011 International Law Commission’s Articles on the matter contain a detailed overview of the different case-scenarios under which a conduct may be attributable to an international organisation. Contrary to the STL’s model, the Articles do not, for instance, predicate the entity’s responsibility on the established responsibility of a concrete individual or organ within this entity.

The International Criminal Court at 14

by Shehzad Charania

[Shehzad Charania was the Legal Adviser and Head of International Law at the British Embassy in The Hague between January 2013 and August 2016.  The views set out in this article are personal, and do not necessarily reflect the views of the British Embassy or the Foreign and Commonwealth Office.]

Earlier this year, the King of the Netherlands opened the new permanent premises of the International Criminal Court in The Hague, in a ceremony co-hosted by ICC President Silvia Fernandez and the President of the Assembly of States Parties Senegalese Justice Minister Sidiki Kaba.  The Secretary General of the United Nations Ban Ki-Moon also attended, along with former ICC Presidents and Judges.

In his remarks, the Secretary General said that the inauguration was a “milestone in global efforts to promote and uphold human rights and the rule of law”.  The ASP President said that this was a “day of hope for all victims of mass crimes in the world”.  President Fernandez announced that the Court was “here to stay”.

But setting the rhetoric aside, how does the ICC’s report card look since it opened its doors 14 years ago?

The successes

Clearly, the ICC has come a long way since its establishment in 2002.  It has had notable successes.  The Prosecutor securing a first conviction against Thomas Lubanga was a significant step forward in bringing accountability for the recruitment and use of child soldiers; the second conviction saw the accused Germain Katanga apologise to his victims.  The conviction in March of former DRC Vice President Jean Pierre Bemba was the Court’s first for rape.  Earlier in March, the Court received its first guilty plea when Ahmad al-Faqi al-Mahdi admitted to the destruction of historical and religious monuments in Timbuktu.  And across all the cases, 25,000 victims are formally participating in ICC proceedings, with over 180,000 beneficiaries of assistance through the ICC’s Trust Fund for Victims.

The setbacks

But the Court’s successes have arguably been overshadowed by a series of high-profile setbacks. For the Office of the Prosecutor, the most notable have been in Kenya, where the Prosecutor’s six attempted prosecutions for the 2007-08 post-election violence have all ended in failure, the final case against Kenyan Deputy President William Ruto collapsing in April.  Last year, the Prosecutor had to withdraw similar charges against President Kenyatta.  In the ruling in the case against the Deputy President, the majority referred to witness intimidation and, in the words of the Presiding Judge, “political meddling”.  But there have also been highly critical judicial decisions regarding the quality of the prosecution’s investigations and evidence across all the Kenyan cases.

The challenges

The Court’s current challenges are stark.  Yet it is important to note that many of these are primarily for its Member States rather than the institution to address.  But failure to deal with them reflects on the effectiveness, legitimacy and credibility of the ICC itself.  Here are some.

First, all the cases and eight of the nine investigations at the ICC are African, leading to accusations of racism and neo-colonialism, and questions around the Court’s legitimacy.  Admittedly, the majority of the Court’s situations were referred to the Prosecutor by African countries themselves.  But the Prosecutor has faced criticism about the fact that in those same situations there have been indictments only of opposition figures, opening up the Court to further accusations of partial justice, and allowing the ICC to be used for political ends.

Second, the absence of the US, Russia, China and India means that there will always be a question mark over the ICC’s relevance.  More urgently, the Court does not have jurisdiction over the worst crimes taking place in the world today: neither Syria nor Iraq are members of the Court, and Russia and China have vetoed a UN Security Council resolution allowing the ICC to step in on Syria.

Third, inadequate State cooperation remains the biggest obstacle to progress.  Just a few months ago, the ICC’s Pre-Trial Chamber made findings of non-cooperation against Djibouti and Uganda for not arresting Sudan’s President Omar Al-Bashir, in line with their legal obligation under the Rome Statute, when he stepped onto their territory.  And the cases against the Kenyan President and Deputy President, as well as the ongoing investigations into crimes committed in Cote d’Ivoire in 2012, have starkly posed the question of how the Court can prosecute serving high-ranking State officials when it needs the assistance of authorities in those very States to do so effectively.

Fourth, witness tampering is becoming an increasing part of the Court’s workload, diverting precious resources from the investigation and prosecution of the most serious crimes the ICC was set up to deal with.  The Court’s most expensive trial in 2016 was such a case.

Fifth, it takes years to administer international justice in a single case, in part due to the complexity of the crimes involved.  The current timescales could be reduced through more efficient procedures, and this is the ICC President’s top priority.  But these cases will never be as fast as simpler, domestic cases.  Many survivors will die before they see accountability.

Finally, international justice costs money.  And as States begin negotiations on the 2017 budget, they understand that unlike other international organisations they cannot tell the institution what to do – which investigation to open, who to pursue, and who to convict or acquit.  The Court must use States Parties’ own money to pursue individuals in those same States, sometime the heads of those States.  That’s part of the “price” of international justice.

The future

The ICC, therefore, faces an uphill task, not made easier by what is potentially on the horizon.  The Court is already investigating Russian and Georgian actions during the 2008 armed conflict.  And it is conducting preliminary examinations outside Africa – which could lead to full investigations and therefore indictments – in situations relating to: Ukraine, where the Prosecutor is likely to be examining allegations against Russia following the annexation of Crimea; Afghanistan, where amongst other things allegations of detainee abuse by US officials are being considered; possible war crimes by all sides in the Occupied Palestinian Territories; and of course Iraq. In addition, within the next couple of years, the Court is likely to have jurisdiction over the crime of aggression, opening up a whole new political dimension to the ICC’s work.

But for countries such as the UK which attaches serious importance to the rules based international system, the test of its commitment is about seeing institutions such as the ICC through both the good and the bad times. That means ensuring full cooperation, resisting threats to its independence, speaking up for the Court when it is under attack, and all while continuing to push for serious institutional reform.

More than ever, the ICC needs its friends, in particular States Parties and NGOs, to be constructive critics. At the same time, after only 14 years of existence, we should not be surprised that there is more to do within an institution designed to hold the most powerful individuals to account. Instead of lamenting the fact that the ICC is not perfect, we should celebrate the fact that the Court exists at all, and that it is ready and willing to meet the challenges head on.

Emerging Voices: Promoting Threat? Assessing the Role of the European Union as an Enforcer of International Law in the Ukrainian Crisis

by Alexandra Hofer

[Alexandra Hofer is a Doctoral Researcher at Ghent University, GRILI member. The topic addressed in this post is based on a paper entitled Promoting Threat: The Effect of European Union Restrictive Measures on the Development of International Law’s Enforcement, a Sociological Approach. All websites were last accessed on 5 July 2016.]

The starting point of this post is related to the renewal of the EU’s economic and sectorial sanctions against the Russian Federation for its destabilizing policies in Ukraine. These restrictive measures were first adopted in July 2014 in reaction to the events in east Ukraine. The measures restrict financial exchanges with Russia and exports of technology needed for oil exploitation and production; they impose an embargo on arms, dual-use goods and technology. They aim at pressuring Russia into using its influence on the Ukrainian separatists and to prevent the transfer of heavy arms across the Ukrainian border. Their objective is to impose costs on Russia for its illegal and destabilizing conduct in Ukraine. (For example, see this.)

Since 2014, renewals have taken place despite signs of sanctions fatigue as certain EU Member States have suggested reconsidering the sanctions against Russia, arguing that the restrictive measures have been ineffective against the Kremlin. (Examples include Greece, Italy, Cyprus and Hungary; French President Hollande). At present, the lifting of the European measures is dependent upon Russia’s implementation of its obligations under the Minsk Agreements and its contribution to the peaceful settlement of the dispute with Ukraine.

This post considers whether such restrictive measures are an effective means for the EU to resolve the Ukrainian crisis and enforce international law. In order for this to be the case, the measures need to be successful in convincing (or pressuring) Russia to change its policy in east Ukraine and cease its wrongful act. Although the effectiveness of sanctions is generally an issue addressed by political scientists, it is an equally important question for international lawyers who are interested in ensuring compliance with international legal obligations. Can sanctions such as those imposed by the EU change Russia’s behaviour? We are therefore interested in these measures’ coercive effect (see Francesco Giumelli ‘How EU sanctions work. A new narrative’ (2013) n° 129, 13 EUISS Chaillot Paper).

It is relatively safe to say that the EU uses its sanctions policy in order to play out its role as a civil and liberal power (see for example Barbara Delcourt ‘Au nom de quoi sanctionner et punir?’ (2015/1) nº97 Revue internationale et stratégique 79). Not only is the EU’s external action guided by the norms that contributed to its creation, which are ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’, through its international relations the organization seeks to advance them in the wider world (as illustrated by the Treaty on European Union, Title 1, Article 3 and Title V, Chapter 1 ‘General Provisions on the Union’s External Action’, Article 21).

It is within the scope of this role that the EU adopts restrictive measures. Accordingly, through these measures the EU seeks to enforce compliance with one of the most fundamental rules of international law by pressuring Russia into changing its behavior towards Ukraine and complying with the Minsk Agreements. Notwithstanding the high structural costs of the sanctions to Russia’s economy and the negotiation of a ceasefire, it would appear that the sanctions have not encouraged Russia to change its policy in Ukraine but have instead been used to enforce anti-EU propaganda and have further alienated Russia from the EU, resulting in a stalemate between the two parties. Russian high-officials have stated that the sanctions against it are illegal and that they have contributed to souring relations between the EU and Russia, leading to a new Cold War (See these two statements: 1 and 2.) Tit-for-tat sanctions have followed as Russia has adopted its own measures against the EU. Finally, Russia has avoided isolation by forging new alliances.

Acts of aggression and the imposition of sanctions do not come about in a vacuum. Instead, they are the product of an interaction between agents whose respective identities and perceptions of a situation cause them to act in a certain way. From a sociological perspective, it would appear that the EU’s coercive measures have not encouraged the Kremlin to change its policy in Ukraine and cease its wrongful conduct. Taking into account constructivist notions of State identity and norms, the sanctions may have had the effect of encouraging Russia to further pursue its destabilizing, and illegal, policies in Ukraine. This is because the restrictive measures cause Russia to continue to view the EU as a threat. In as much as this perception of threat caused the Kremlin to pursue its destabilizing policy in the first place, the restrictive measures are not giving Russia incentive to change its behavior.

Indeed, as argued by Hopf in a recent article (Ted Hopf ‘”Crimea is ours”: a discursive history’ (2016) vol. 30(2) International Relations 227), Russian policies in the Ukraine can be understood as the result of Russia’s identity as, inter alia, a regional power that has historical and fraternal ties with Ukraine and its interpretation of Western policies coupled with the circumstances that arose in Ukraine. Russia may have felt threatened by NATO’s expansion and by Ukraine’s turn to the EU, which would have been perceived as the broadening of Western influence in Eastern Europe. Indeed, President Putin has expressed misgivings about the military alliance’s turn to Eastern Europe, which prevents the European continent from uniting and moving away from the Cold War mentality (see for example, 1 and 2); this concern has been expressed over the years, as illustrated by Putin’s speech at the Munich Security Conference in 2007. Under these circumstances, Russia reacted dominantly, or aggressively. When Russian officials state that the restrictive measures bring EU-Russian relations back to the Cold War, this is an indication that the sanctions contribute to the perception that the EU poses a threat. The Kremlin therefore continues its destabilizing policies in Ukraine because they are believed to be necessary to safeguard Russian interests and standing in the region. In a way, not complying with the EU’s demands become a value to the Russian Federation, who would have too much to lose if it were it to give into Western pressure (such as, for example, its standing as a regional power).

In conclusion, the argument here is that the restrictive measures have been counterproductive because they have contributed to promoting a situation of mutual distrust between the EU and the Russian Federation. Each actor continues to view the other as a threat and bases its response on this perception. This would mean that contrary to encouraging Russia to cease its policy in the Ukraine, the sanctions give Russia incentive to continue its actions in the region, which gives the EU incentive to pursue its sanctions policy, etc. Russia’s interpretation of Western powers’ policies in Ukraine and NATO’s expansion towards the East caused Russia to feel its fraternal ties with Ukraine were threatened and act aggressively. In response, the EU believes the norms it wants to defend in the ‘wider world’ are threatened and responds – with Kiev’s approval (see 1, 2, and 3)– by adopting coercive measures; this also allows the organization to fulfil its identity as a civil and liberal power that aims at promoting peaceful relations between States (see TEU, Title V, Chapter 1, Article 21(2)(c)). In the EU’s view, ‘it has a special responsibility for peace, stability and prosperity in Europe’ (see this statement). Instead of feeling the negative costs of its actions, the ban on exportations to Russia in technology is used as an opportunity to develop Russian industry and steps are being taken to substitute former EU and American agricultural imports (see here and here). Instead of being enforced, international law is continuously violated. The challenge is to free both parties from the deadlock. Unfortunately, this is unlikely to occur with the breaking down of communication, the pursuit of NATO operations in Eastern Europe and the continuation of the sanction tit-for-tat. Given this counterproductive outcome, the EU’s role as an enforcer of essential legal norms is being undermined. Nevertheless, as Wendt wrote: ‘if states find themselves in a self-help system, this is because their practices made it that way’ (Alexander Wendt ‘Anarchy is what States Make of it: The Social Construction of Power Politics’ (1992) 46:2 International Organization 391, 407). Hence, if the EU and Russia want out of the stalemate, they need to change their practices. The EU should focus on tools that promote dialogue and communication, which would bridge the gap and help Russia no longer perceive the EU as a threat. This may then have the effect of encouraging Russia to demilitarize in Ukraine.

China’s Vice-Minister for Foreign Affairs Casually Slanders the South China Sea Arbitral Tribunal

by Julian Ku

I have been trying to move on from writing about the blockbuster UN Convention on the Law of the Sea arbitral award on the South China Sea.  As our readers know, I have written way too much on this topic lately.  But the Chinese government’s outrageous statements criticizing the award deserve one last post from me before I head out for a South China Sea-free vacation this summer.

In particular, I wanted to turn our readers’ focus to statements such as those made by China’s Vice-Minister for Foreign Affairs, Liu Zhenmin, shortly after the award was released.  In his remarks denigrating the arbitral tribunal, Liu implied that the arbitrators may have been bribed to adopt the views of the Philippines in the award.  Below is an excerpt of a transcript of his remarks:

Besides, who supported the Arbitral Tribunal? The arbitrators are paid by certain parties, but who? Maybe by the Philippines or other countries. This system is completely different from the ICJ or the ITLOS.

Judges of the ICJ or the ITLOS receive salaries from the UN for the sake of independence and impartiality. But these five judges of the Arbitral Tribunal are doing it for a profit, and their payments come from the Philippines and probably others, too. We are unsure about the details but they do provide paid services.

These comments are outrageous on so many levels.   Liu knows, or should know, that the arbitrators were paid by the government of the Philippines.  The tribunal announced publicly in its Rules of Procedure Article 31-33 that it was exercising its treaty powers under Article 7 of Annex VII to UNCLOS to require payment from both parties. But Liu also knows that the only reason the arbitrators received all of their compensation from the Phillippines government is because China refused to participate and refused to pay its share. If China had actually showed up, it would have been obligated under Article 7 of UNCLOS Annex VII to pay half of the fees.  There is no evidence, and Liu cites none, that any government other than the Philippines paid the arbitrators.  Liu also conveniently fails to mention his own government’s failure to pay its fair share.

Such payments are almost always made in advance of the award being issued, or even before the proceedings begin.  In other words, the payments could not influence the award’s contents because the Philippines did not know the content of the award before they made their payments.

This manner of compensating arbitrators is so standard and unremarkable that China’s own leading commercial arbitration organization, CIETAC, allows in Rule III.C.1 for one party to pay fees for the entire arbitration even if the other party does not show up and refuses to pay its own share.   This is essentially the situation that the Philippines found itself in.  It could continue to demand that the Tribunal seek money from China for its share of the expenses, or it could pay up. It chose to pay China’s share as well, and (as a reward) is now being lambasted by China for doing so.

Vice-Minister Liu is not a party hack who doesn’t know anything about arbitration.  He is, in fact, on the roster of arbitrators available for appointment by the Permanent Court of Arbitration and he is a arbitrator of the aforementioned CIETAC.  In other words, Liu knows exactly how arbitration works, and he is feigning ignorance in order to defame the character of the UNCLOS arbitrators.

In the same press conference, Liu also claimed that UNCLOS arbitration is some sort of aberration that has never happened before, unlike the more established ICJ or ITLOS systems.  On this point, Liu is flatly incorrect. In fact, there have already been seven UNCLOS arbitrations convened under the exact same rules that were applied to the Philippines/China arbitration.  In fact, as Liu well knows, the Chinese government freely chose arbitration instead of the ICJ or ITLOS for any dispute settlement under UNCLOS.

When acceding to UNCLOS, China could have chosen under Article 287 to specify the ICJ or ITLOS as its preferred forum for dispute settlement.  It did not do so, thereby forcing any dispute involving China to be sent to UNCLOS arbitration pursuant to Article 287(5).  In other words, the Chinese government made a conscious choice to avoid the ICJ and ITLOS for disputes arising under UNCLOS.  It is astounding for one of China’s leading diplomats to denigrate the integrity of a system of dispute settlement that China freely chose and in fact demanded.

Liu’s borderline defamatory remarks matter even if China and the Philippines eventually work out a settlement of their dispute.  Liu has knowingly denigrated the integrity of five arbitrators – three of whom continue to sit on the International Tribunal for the Law of the Sea – using facts he almost certainly knows are false. As the esteemed Professor Jerome Cohen of NYU has noted, in many jurisdictions, this could be enough to constitute defamation or slander.  Since Liu would have immunity for his remarks, perhaps the softer sanctions could be imposed, such as demanding his resignation from the PCA’s roster of arbitrators or perhaps his removal from the position as an Associate Member of UNIDROIT.  At the very least, this sort of casual character assassination should not be forgotten nor forgiven.

Russia and the DNC Hack: What Future for a Duty of Non-Intervention?

by Duncan Hollis

There are lots of important issues implicated by this morning’s above-the-fold story in the New York Times that U.S. officials and certain cybersecurity experts (e.g., Crowdstrike) have concluded Russian government agencies bear responsibility for hacking the Democratic National Committee’s servers and leaking internal e-mails stored on them to Wikileaks (Russian responsibility for the hack itself was alleged more than a month ago).  The domestic fall-out is already on evidence with the resignation of Debbie Wasserman Schultz and I’m sure we’ll see other impacts here in Philadelphia at this week’s Convention (although Senator Sanders so far is not using the event to walk back his endorsement of Hillary Clinton). U.S. national security officials are treating the news as a national security and counter-intelligence issue (as they absolutely should).

But what does international law have to say about a foreign government obtaining and leaking e-mails about another country’s on-going election processes? This is obviously not a case violating Article 2(4) since that only prohibits the “threat or use of force against the territorial integrity or political independence of any state” and there’s no force at work in the current distribution of data otherwise intended to remain confidential.  But alongside the Charter’s prohibition on the use of force, customary international law has long recognized a ‘duty of non-intervention’ that applies to State behavior in cases falling short of the use of force.  The question then becomes whether the duty applies to this case and if so to what end?  For my part, I see at least three distinct sets of issues:  (i) attribution; (ii) the duty’s scope; (iii) the relevance of international law more generally to cyber security incidents like this one.

1. Attribution — Did Russia do this?  Attribution has both a factual and a legal element, both of which are at issue in the DNC case.  Factually, there’s the question of who actually perpetrated these hacks — the hacker(s) named Guccifer 2.0 claims responsibility but cybersecurity investigators suggest two separate penetrations tied to two different Russian hacker groups, “Cozy Bear” and “Fancy Bear” (international lawyers take note of how much more fun cybersecurity officials have in naming stuff than we do).  Making the factual case of who did what in hacks such as this is always difficult even as recent technological advancements have improved the ability to trace-back in certain cases. Just as importantly, however, there’s always the possibility of a ‘false flag’ where the true perpetrator goes to great lengths to make investigators think some other actor was responsible (i.e, planting evidence/code in a particular language or using coding patterns associated with a particular group of actors).  Ironically, the potential for a false flag means that a State caught red-handed can always invoke plausible deniability and suggest that they are themselves a victim as some other, unknown super-sophisticated actor is trying to frame them.  One can safely assume, for example, that Russia will make this argument in the DNC case.  Indeed, even in cases that appear clear cut like Sony Pictures, there are still those who resist FBI’s assertions of North Korean responsibility.

A second aspect of the attribution inquiry is a more legal one — namely, assuming the individual actors who perpetrated the hack can be identified, when can their actions be attributed to a State? This is not really at issue if the perpetrators are in a State’s direct employ (e.g. military officers or intelligence officials).  But what happens if the perpetrators are nonstate actors?  How much control would a State like Russia need to exercise over the DNC hack and later leak for it to bear responsibility?  That question is one that different international fora have answered differently in different contexts (the ICJ’s Nicaragua case and ICTY’s Tadic case‘s competing tests of effective versus overall control being the most famous examples).  As such, it’s difficult to say at present what relationship a State must have with nonstate hackers or hacktivists to bear responsibility for what they do.  That may not be a bad thing overall, as one can imagine how a clear line might incentive States to proliferate behavior just short of crossing the line in lieu of being chilled from acting generally if the whole area is cast as a truly grey zone.  That said, the ability to debate what international law requires in terms of the State-nonstate actor relationship complicates any application of the duty of non-intervention in individual cases.

2. Scope: What behavior violates the duty of non-intervention?  Assuming that Russia was responsible (which I should be clear at this point is just an assumption), the next question is whether its hacking and leaking of DNC data violated the duty of non-intervention?  Here again, international lawyers will encounter some uncertainty as the precise scope of the duty has never been fully resolved.  To be clear, there’s widespread consensus that a duty of non-intervention is customary international law.  The problems are more the duty’s contents.  The most famous formulation is undoubtedly that put forth by the ICJ in the Nicaragua case (para. 205), prohibiting interventions

bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.

The ICJ’s take suggests that intervention requires methods of coercion, forcing the victim State to make different choices than it might were it free of coercive interference.  This pairs with key parts of the earlier 1970 UN General Assembly Declaration on Friendly Relations Among States:

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.

Thus, much of the debate over the duty of non-intervention has focused on identifying which coercive measures below the use of force threshold are covered by the prohibition. But, looking at the DNC hack, there’s little evidence that Russia is trying to coerce any particular result. Indeed, it’s not even clear that the goal of the hack was to support Trump’s candidacy.  The operation could have other purposes; for example, I’ve seen suggestions that it might have been a response to Russian presumptions that the United States bears responsibility for the Panama Papers, a data breach that caused some discomfort to Putin’s administration.  Given this, might we not simply write this hack-off as a particularly visible form of espionage?  Is this case equivalent, for example, to the OPM hack?  That hack, while clearly contrary to U.S. national security interests, was not terribly susceptible to claims of an international law violation given international law’s longstanding, complicated relationship with surveillance (for more see Ashley Deek’s recent article).

I’m not so sure, however, that the duty of non-intervention can be dismissed so quickly.  For starters, the hackers did not just take the data and use it to inform their own policies or behavior. They also leaked it, and did so in a way where the timing clearly sought to maximize attention (and corresponding impacts) on the U.S. domestic political campaign process.  Perhaps we need to separate out this incident into two parts — the espionage (i.e., the hack itself) and the interference in the U.S. campaign using the fruits of that espionage.  Doing so suggests the leaking might be the problematic act under a less quoted paragraph of the 1970 U.N. General Assembly Declaration’s description of the duty of non-intervention:

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

Interference in ‘any form’ is clearly a broader formulation than coercive acts, suggesting that actions designed to impact public support for not just a particular candidate, but an entire “political” party, could implicate the duty of non-intervention here.  That said, there are others who’ve been thinking much more carefully on the question of non-intervention and cyberspace than I have.  Later this year, for example, we should be able to read the fruits of Tallinn 2.0, the much-anticipated follow-up to the Tallinn Manual and its take on international law applicable to cyberwar.  Tallinn 2.0 will offer the views of an independent group of experts on how international law regulates cyberspace outside of the use of force and jus in bello contexts, including the duty of non-intervention.  I imagine I’m not alone in wanting to know whether and how its contents will speak to the current DNC crisis.

3. Remedies:  Does International Law Really Matter Here? Talking about this case in the last 24 hours, I’ve had a couple of non-lawyer friends express skepticism over international law’s relevance to the DNC hack.  Given our age, my friends hearken back to the Cold War, suggesting that Russia can and will ignore international law with impunity here (one of the more sanguine among them, also pointed out that the United States has its own history of interfering in foreign elections, a point Jack Goldsmith made earlier today at Lawfare). And, to be sure, there’s some merit to this critique.  After all, Russia’s Security Council veto ensures the inability of that body to respond to these events in any way. And U.S. resistance to the jurisdiction of international courts and tribunals precludes any real chance that a third-party would review the case.

Still, I think it’s important to raise the international legal issues for at least three reasons.  First, and perhaps most obviously, international law does provide self-help remedies in cases of state responsibility, including retorsion (otherwise legal acts done in response to unlawful behavior) and counter-measures (behavior that would otherwise be unlawful but for the fact that it is itself in response to unlawful behavior).  Thus, if Russia was responsible for the DNC hack and that hack did violate the duty of non-intervention, it would free the United States to engage in counter-measures vis-a-vis Russia that would otherwise be unlawful.  Time and space preclude me from surveying all the various counter-measure options that the United States might have, although I’d note there’s an interesting ancillary question of whether international law might limit the U.S. from pursuing certain counter-measures — such as interfering in Russia’s own domestic political process — if doing so is analogous to humanitarian obligations, which are non-derogable (i.e., you cannot violate the human rights of another State’s nationals just because they violated your nationals’ human rights).  I’d welcome reader thoughts on such limits as well as a more open discussion of the types of counter-measures that might be legally available in this case or any collective measures that could be in play.

Second, there’s the question of what happens if international law is not invoked or applied to this case? To the extent state practice can involve acts and omissions, might silence suggest that this sort of behavior (hacking and releasing political parties’ internal communications) is perceived as lawful (or at least not internationally wrongful)?  In other words, how States react to this case will have follow-on effects on future expectations of responsible State behavior, leading to new norms of behavior in cybersecurity.  This is a topic on which I’ve been spending A LOT of time lately with a forthcoming article in the American Journal of International Law that I’ve co-authored with Martha Finnemore (we’ve not posted it yet, but interested readers should e-mail me if they’d like to see a draft).

Finally, there’s an academic reason to undertake this analysis.  In recent years, scholars have debated and emphasized ways to shrink the duty of non-intervention, under the banner of things like human rights (unseating the old assumption that international law did not care what a State did vis-a-vis its own citizens in its own territory) or humanitarian intervention (the idea that responding to a State’s failure to protect those within its borders is more important than the duty of other States to stay out of domestic jurisdiction matters).  I wonder if these arguments are relevant to the current controversy?  Have they inadvertently created space for additional exceptions or otherwise shifted the scope and reach of any duty of non-intervention?  I might be wrong to worry about any such link, but I do think the issue warrants further study.

Thus, I think this is an important case that bears close attention.  I’d like to see how the United States responds publicly, if at all, to the allegations, not to mention how other States or actors view the behavior in question.  For international lawyers, moreover, I’d hope to see further discussions of how to attribute responsibility in cyber security incidents as well as more detailed analyses of how the duty of non-intervention applies in cyberspace than we have had to date.  To that end, I’d welcome reader thoughts and comments.  What have I got wrong?  What am I missing?


Alaskans and Canada’s Transboundary Mining Pollution: Kick-starting the US-Canada Bilateral Pollution Regime

by Kenta Tsuda

[Kenta Tsuda is an attorney at the non-profit law organization Earthjustice in Juneau, Alaska. Earthjustice was involved in the Pelly Amendment process described below in the post.]

For millennia the peoples of southeast Alaska have prized the salmon harvests of the Taku, Stikine, and Unuk rivers, three transboundary waterways flowing from headwaters in British Columbia’s Coastal Range through Southeast Alaska to the sea.  Customary harvests continue today, along with tens of millions of dollars’ worth of commercial fishing.  In recent years, however, Alaskan  communities have faced a threat of potentially devastating transboundary pollution from mines in British Columbia.  Hard-rock mines exploiting gold-copper deposits in the headwaters of the three rivers would produce billions of tons of waste rock and tailings.  Each would require indefinite treatment of uncertain efficacy to prevent the poisoning of surrounding watersheds by a toxic cocktail of acidity and dissolved heavy metals.  This contamination could have population-level harms on salmon, both in Canadian reaches of these waters and on the U.S. side of the border.  Downstream communities in Southeast Alaska fear for their economic futures and ways of life, while Canadian authorities are allowing the projects to advance.  Alaskan groups now seek resolution of the dispute at the international level.  To that end, under a domestic statute they have invoked the U.S. Government’s duties to confront these environmental threats, aiming to prompt the Government’s assertion of rights held under international law.

The transboundary nature of the threat limits private legal action on the American side of the border.  The situation requires what Professor Thomas Merrill has described as a transboundary collective action regime.  As Merrill has explained, such regimes are difficult to create, however, “if some mechanism can be devised for inducing mutual cooperation, the situation is potentially a positive-sum game for all.”  In the case of the United States and Canada, a mechanism for addressing transboundary pollution already exists: under Article IV of the 1909 Boundary Waters Treaty the United States has a right against transboundary pollution from Canada.  This same instrument creates an institution to address potential violations of treaty rights, the International Joint Commission (IJC).  Under Article IX, the parties agree that “any . . . questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier” could be referred to the IJC “for examination and report.”  A referral would entail the governments of both the United States and Canada formally requesting that the commission exercise its investigative powers with respect to specific questions of rights or interests along the frontier.  Such Article IX referrals have been made many times.  Although IJC findings in response to a referral are not automatically binding, historically the parties have abided by them.  For these reasons, groups in Alaska and Canada—indigenous communities, commercial fishing interests, conservationists—as well as Alaska’s congressional delegation, and Washington’s Senators Murray and Cantwell, have requested that the State Department consider referring to the IJC questions regarding the potentiality of and means to prevent transboundary pollution from hard-rock mines in the three watersheds.  So far, both American and Canadian federal governments have demurred, suggesting that an information-sharing agreement between the state of Alaska and Province of British Columbia—which cannot be binding, and therefore includes no liability rule—might eventually yield a solution.

To encourage further consideration and engagement among federal agencies, and ultimately the Federal Government’s referral of the issue to the IJC, Alaska Native and conservation groups recently invoked a domestic legal lever to prompt an invesigation by the Department of the Interior.  The groups, including the environmental law organization Earthjustice, submitted a petition invoking Secretary of the Interior Sally Jewell’s duties under the 1971 Pelly Amendment to the Fishermen’s Protective Act.  Under this statute, the Secretary must investigate and certify to the president if foreign nationals act to diminish the effectiveness of a U.S. conservation treaty.  The petitioners describe six mine projects in the transboundary watersheds, detailing how they threaten Pacific salmon and steelhead trout—protected under the 1991 Anadromous Stocks Conservation Convention—as well as the grizzly bear and woodland caribou—protected by the Western Hemisphere Convention.  The petition requests the Department of the Interior to bring its expertise to bear upon the issue via an investigation of the mines and their environmental effects, and for Secretary Jewell to engage her colleagues in the federal executive to seek a referral of the issue to the IJC.

This developing situation demonstrates that parties to an established transboundary collective action regime must actively exercise their relevant rights and privileges to protect the interests of their citizens against transboundary threats.  It also illustrates the potential role that domestic statutory remedies can play in private actors’ efforts to address transboundary threats, even where the domestic law does not afford ample opportunity directly to address sources of transboundary pollution.

Multi-Blog Series: First Thoughts from Academia on the Updated GCI Commentary

by Kevin Jon Heller

[This is the third episode in the Multi-blog series on the Updated Geneva Conventions Commentaries, jointly hosted by the Humanitarian Law & Policy Blog, Intercross and Opinio Juris. The first, by Jean-Marie Henckaerts, can be found here, and the second, by Sean Murphy, here.]

It is a great pleasure to contribute to this multi-blog series on the ICRC’s newly-released Commentary on the First Geneva Convention (GC I). Sean Murphy is right that GC I might seem “of lesser significance” than the Third and Fourth Geneva Conventions (GC III and GC IV) – and there is no question that IHL scholars everywhere will eagerly await the ICRC’s Commentaries on those Conventions. But that does not detract from the importance of this first Commentary, which represents a remarkable achievement in its own right. As the Introduction notes, the authors of this new Commentary had to analyze nearly seven decades of state practice, a massive and unenviable task. Moreover, they had to address some of the most contentious issues in IHL, such as the scope of application of Common Article 3 (CA 3). Indeed, I have little doubt that the Commentary’s overall Common Article 3 discussion – which runs to 907 paragraphs, approximately 800 more than its 1952 predecessor! – will attract considerable scholarly attention (and cause considerable academic controversy) in the coming years.


Flyer cover page - GC I launch

For my part, I generally agree with Murphy’s and Jean-Marie Henckaerts’ comments about the ICRC’s methodological approach in the Commentary. But I think Henckaerts actually underplays one of the most encouraging aspects of the ICRC’s methodology: its willingness to make liberal recourse to travaux preparatoires when interpreting provisions of GC I. Here is paragraph 49 in the Introduction:

Indeed, it seems logical for a thorough examination of all the issues to look at the preparatory work even if the general rule of interpretation yields a satisfactory result. It also helps the commentator to understand ‘the terms of the treaty in their context’ which is a requirement under the general rule (see Article 31(1) and (2) of the Vienna Convention on the Law of Treaties). Recourse to the preparatory work is particularly important when no recent practice on a topic can be found, such as for Articles 33 and 34 of the First Convention dealing with the fate of buildings and material of medical units of the armed forces and aid societies after they fall into enemy hands.

This is a refreshing deviation from VCLT orthodoxy about travaux preparatoires being unnecessary when the “ordinary meaning” of treaty terms is ostensibly clear. As Julian Mortenson has shown, that orthodox view of the VCLT is impossible to reconcile with the treaty’s own history, becausethe drafters repeatedly reiterated that any serious effort to understand a treaty should rely on a careful and textually grounded resort to travaux, without embarrassment or apology.” Indeed, scholars all too often use a treaty’s supposed “ordinary meanings” as a vehicle to substitute their own political preferences for the will of the states that drafted and concluded it.

I also agree with Henckaerts and Murphy concerning the central role that the ICRC plays in interpreting the Geneva Conventions – the “guardian and promoter of IHL,” in Henckaerts’ words. But that role poses a danger that needs to be openly acknowledged: namely, that those who use the Commentary – soldiers and scholars alike – will be tempted to uncritically accept the ICRC’s interpretation of GC I. There is no question that the authors of the Commentary are among the world’s most expert IHL practitioners and scholars, but they are neither infallible nor objective. On the contrary, both the experts and the ICRC as an institution have political and legal commitments that cannot help but influence how they interpret GC I. That does not mean that their interpretations should be discarded. It does not even mean their interpretations should always be viewed with a skeptical eye. But it does mean that IHL scholars should be willing to challenge the Commentary when they believe that the ICRC is wrong.

To be clear, I am in no way suggesting bias or bad faith on the part of the Commentary’s authors. I am simply pointing out that interpretation is an inherently indeterminate, subjective, and political activity, which means that it matters a great deal who is doing the interpreting. And there is no escaping the fact that the members of the Editorial Committee, the ICRC Project Team, and the Reading Committee come exclusively from states in the Global North – most from states in Western Europe. Again, that does not mean that the Commentary is wrong on any particular point. Moreover, to the ICRC’s credit, the Commentary’s peer-review group, who “reviewed the drafts and provided comments in their personal capacity,” included individuals from dozens of states in the Global South. But it is nevertheless regrettable that the primary authors and reviewers of the Commentary are so geographically homogenous – especially given that the states they represent rarely if ever experience the kind of conflict that is subject to Common Article 3.

Finally, I want to flag a very odd statement in the Commentary, paragraph 10 in the Introduction:

In addition, what sets the updated Commentaries mandated by the ICRC apart from other academic commentaries is that the contributors were able to draw on research in the ICRC archives, while respecting their confidential nature, to assess the application and interpretation of the Conventions and Protocols since their adoption.

I have no doubt this is true – but I find it somewhat troubling to know that the ICRC’s interpretation of GC I is based on evidence that cannot be subjected to scholarly criticism. I hope the ICRC will say more about its reliance on non-public information in future Commentaries, which will deal with even more controversial aspects of IHL.

Assessing the Fallout from the South China Sea Award

by Julian Ku

In addition to my posts here (see below), I have several  pieces over the last week discussing different aspects of the South China Sea award up at various outlets across the web universe (I know, I know, I need to stop writing about this topic, but indulge me just a little longer).  To briefly recap my various takes, here is a quick summary:

As a legal matter, China lost every substantive issue before the South China Sea arbitral tribunal.  I argued here at Lawfare that the award “dramatically widens” the scope of future more aggressive U.S. freedom of navigation operations by, for instance, eliminating any legal basis for a Chinese territorial sea around its artificial island on Mischief Reef.  Since that reef is also within the Philippines’ exclusive economic zone, the U.S. Navy has (as a legal matter) carte blanche to sail or fly within 500 meters of what is now an artificial island in clear violation of Philippines’ rights under UNCLOS.

On the other hand, I warned here in The National Interest that the arbitral award does not require China to leave the South China Sea or the Spratlys in particular.  The award leaves open the legal possibility for China to claim a series of 12 nautical mile territorial seas around various rocks in the island group. This means that even in China complied with the award, it would have the legal right to maintain a robust presence there.

Taking a step back, I also blamed China’s government (in this piece for Quartz) for exacerbating the negative impact of the award by refusing the participate in the proceedings and then starting a global media war against it.  This drew much more attention to the award than would have otherwise been the case.

Finally, over at Foreign Policy, I offered a very tough critique of the role of Chinese international law scholars in bolstering the Chinese government’s claim that it can legally ignore the arbitration.  It is not so much that Chinese international legal scholars were wrong, but that their unanimity weakens their long-term credibility on the global stage.  I contrast the unanimity within China’s academic community with the much-divided U.S. academic reaction to the U.S. government’s refusal to comply with the ICJ’s Nicaragua judgment in 1986.

For any Chinese-language readers out there, I have been engaging in a debate (thanks to the fabulous translation work of my student Weitao Chen) at the Financial Times (Chinese edition) with Professor Liu Haiyang on China’s obligation under UNCLOS Article 288(4) to accept the arbitral tribunal’s determination of its own jurisdiction. Here was my initial essay, here is Prof. Liu’s response, and here is my rebuttal.  Annoyingly, it appears my initial essay has been censored in China, which must mean I am making good arguments!

I am not done with discussing this award, but I do need to get a life at some point. I am also trying to incorporate all of this into a larger project on China’s overall relationship with international law.  Certainly, this whole dispute will be a significant chapter in my book!