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Symposium: The Rule of Law: Thick, But Not Too Thick?

by John Tasioulas

[John Tasioulas is Yeoh Professor of Politics, Philosophy and Law at the Dickson Poon School of Law, King’s College London and Visiting Professor of Law, University of Chicago Law School. This is the third post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here and the second, here.]

One can, without linguistic impropriety, use the phrase “the rule of law” to denote a number of significant though distinct ideas. Most expansively of all, it can be used to refer to the rule of good law: to all of the values, running the gamut from justice through charity to efficiency, that law should embody or promote. This value catalogue, although probably very long and diverse, would not lack utility, since not everything we value need fall within the legitimate ambit of legal concern.

Still, those who have seriously meditated on the rule of law usually had something more specific in mind than the rule of good law. They have typically sought to articulate the ideal of the rule of law in a way that satisfies two constraints. First, a constraint of pluralism: the rule of law is only one evaluative standard, among various others, for assessing laws and legal institutions. Second, a constraint of unity or coherence: the various demands of the rule of law must be the expression of a coherent underlying ethical concern. Given the pluralism constraint, that underlying concern cannot merely consist in the ultra-minimal one of relevance to the ethical assessment of law.

Notoriously, there are ‘thicker’ and ‘thinner’ articulations of the rule of law, the former often called ‘substantive’, the latter ‘formal/procedural’, but they all typically seek to satisfy the desiderata of pluralism and coherence.

Ronald Dworkin, a leading proponent of the thick view, characterizes the rule of law as ‘rule by an accurate public conception of individual [moral] rights’ (R Dworkin, A Matter of Principle (Harvard University Press, 1985), 11-12). Since not all of the values relevant to the assessment of law are rights-based considerations, the pluralist constraint is satisfied. Meanwhile, coherence is secured through the organizing idea of moral rights that are appropriately reflected in law. Yet Dworkin’s view seems too expansive insofar as it equates the rule of law with justice generally, at least to the extent that the latter bears on law. This is because a venerable tradition of thought – one that includes Grotius, Hume, Kant and Mill – construes the concept of justice as picking out just those moral duties that have associated rights.

Hence, the motivation to adopt a ‘thin’ account of the rule of law, one centring on a series of formal and procedural requirements, e.g. that laws be prospective, framed in general and accessible terms, not constantly changing, and applied consistently by officials (see the classic recent formulation in J. Raz, ‘The Rule of Law and its Virtue’, Law Quarterly Review 93 (1977): 195-211). The limited scope of the rule of law, thinly understood, means that a legal system can in principle satisfy it in spite of being deficient with respect to values such as human rights or democracy. But the up-side is that the desideratum of pluralism is secured. On the other hand, the coherence of the thin view consists in the fact that its formal and procedural requirements pay proper tribute to the autonomy and dignity of those subject to the law, enabling them to make important choices against the background of being able reliably to predict how the law is liable to impinge on their lives in various scenarios. Like many with ‘thick’ sympathies, McCorquodale finds the thin view all-too minimalist, dismissing it as giving an account not of ‘the rule of law’, but of ‘rule by law’.

McCorquodale’s article offers a rival conception of the rule of law, which he then proceeds to show is applicable to international law. I focus here only on the first stage of his argument. For McCorquodale, the rule of law incorporates four elements conceived as objectives: “to uphold legal order and stability, to provide equality of application of the law, to enable access to justice for human rights, and to settle disputes before an independent legal body” (p.8) We may interpret this account as seeking to fuse the merits of the thick and thin accounts, while jettisoning the limitations of each, by plotting an intermediate position between them. For, arguably, three of its elements would be endorsed by most adherents of the thin view, so that it is the addition of access to justice for human rights that constitutes the distinctive ‘value added’ of his account relative to the former view. Since, presumably, not all moral rights are also human rights, this distinguishes his position from the even thicker Dworkinian version, thus avoiding the objection that he equates the rule of law with justice insofar as it bears on law.

The first question about McCorquodale’s account centres on what he means by human rights. A close reading of his article suggests he has in mind those rights laid down in international human rights law. But how can the content of an ethical value or norm, such as the rule of law, be dependent on a contingent and fallible human creation, such as international human rights law? Isn’t human rights law properly seen as responsible to a background morality of human rights to which it gives inevitably imperfect expression? This is why Dworkin speaks of an ‘accurate public conception’ of moral rights. Moreover, even if we were persuaded by McCorquodale’s assurances that the relevant human rights legally bind all states, and even non-state actors such as corporations, the fact remains that they might not have been binding or could cease to be so in the future. Would the demands of the rule of law fluctuate in line with these changes?

Let’s assume that McCorquodale either revises his view so as to appeal to human rights of morality, rather than law, or else has that he has some compelling defence of his reliance on legal norms. The question then arises: why add human rights, in particular, to the familiar formalist constraints? After all, there are many values that the law should advance, other than human rights, such as peace, the preservation of nature, humanitarian concern, economic efficiency, and so on. Is it not simply arbitrary to conjoin human rights, from all these other legally-relevant values, to the formalist requirements? In other words, in trying to take a stand between thick and the thin, McCorquodale appears to fall foul of the desideratum of unity or coherence.

The likely response is that he is not incorporating all human rights into the rule of law, but only some of them. On the one hand, he claims that the rule of law requires access to justice for all human rights (p.18). On the other hand, he asserts that not all human rights are therefore part of the rule of law, instead only some are (p.7). Presumably, the included human rights will be that sub-set that suitably coheres with the three formalist requirements. The human rights that are ‘within the rule of law’, McCorquodale says, include ‘the right to a fair trial, the right to liberty, the right to equality and the right not to be discriminated against’. Their inclusion is on the basis that they are ‘procedural rights directly relevant to the rule of law’. (p.17).

But this move confronts two hefty challenges. The first is that it remains unclear what the principle of selection is for determining which human rights form part of the rule of law. McCorquodale’s answer seems to be that these are procedural rights, but the sense given to ‘procedural’ is fuzzy and overly expansive. It is not at all obvious in what sense the rights to liberty and non-discrimination, which figure in his list of incorporated rights, are procedural rights in a way that, for example, the rights to life or to political participation are not. Absent an adequate explanation, his account of the rule of law lacks coherence, even if we grant the somewhat nebulous thesis that while the rule of law enjoins the protection of all human rights not all such rights are part of the rule of law.

The second challenge is that, even with a convincing principle of selection, we might discover that his view ultimately collapses into a version of the thin view. This is because the latter view can be made to encompass some human rights, i.e. those that integrate with its concern to safeguard human autonomy and dignity by means of the predictability achieved through compliance with the familiar set of formal and procedural demands. The thin view of the rule of law, for example, incorporates a strong prohibition on retrospective criminal punishment, which itself reflects a corresponding human right. It also incorporates a demand of formal equality in the application of law – treating like cases alike – that also plausibly implicates a human right. So, the thin view seems compatible with a more limited, yet also more coherent, embrace of human rights within the rule of law ideal. If McCorquodale seeks a more generous embrace of human rights within the rule of law ideal, without going to the extreme of incorporating all of them, he needs to be explain how this can be achieved without sacrificing the overall coherence of the ideal, turning it into an ad hoc, but incomplete, list of legally-relevant values.

Symposium: Lies, Damned Lies, and the International Rule of Law

by Simon Chesterman

[Simon Chesterman is Dean and Professor at the National University of Singapore Faculty of Law. This is the second post in the Defining the Rule of Law Symposium, based on this article (free access for six months). You can find the first post here.]

Imprecision of meaning in international law is rarely accidental. Diplomacy is an architecture of compromise, with states routinely adopting malleable or self-serving definitions depending on their interests or aspirations.

So it is with the international rule of law. A decade ago, every member state of the United Nations recognized the need for “universal adherence to and implementation of the rule of law at both the national and international levels” and reaffirmed their commitment to “an international order based on the rule of law and international law.” Any term that can garner such universal support, from Norway to North Korea, is either so vague as to incorporate radically different interpretations of its content or so vacuous that there is no content to speak of.

Academics, generally, prefer precision. Robert McCorquodale is to be commended for his thoughtful and thought-provoking effort to pin down what the “international rule of law” can and should mean. In particular, he is right to push back against simplistic analogies between the concept of the rule of law at the domestic and international level. The function that law plays in a notional horizontal society of equals — the sovereign equality that is the founding myth of international law — is radically different from the role it plays in a vertically ordered state in which power is distributed by reference to a sovereign or in accordance with some form of constitution.

But this structural difference also points to the problem with McCorquodale’s approach to defining the international rule of law. He generously cites my own work in this area, which he correctly identifies as seeking to offer a functionalist approach to what the rule of law might do at the international level — viz. “the application of rule of law principles to relations between states and other subjects of international law”. Such a minimalist definition of the rule of law, he notes in passing, “will suit those states which are resistant to a broader understanding of international legal obligations” (p.289). This is a curious challenge, but points to the larger concern that I have with his own maximalist (thick, substantive) conception of the rule of law as necessarily encompassing the objectives of “legal order and stability; equality of application of the law; protection of human rights; and the settlement of disputes before an independent legal body” (p.292).

The inclusion of human rights in particular begs the question of whether a “thick” conception of rule of law is required in the first place. I will not revisit the thin/thick (or formal/substantive) debates here, but would align myself with Raz’s argument that a “thin” conception does not relegate one to the arbitrary exercise of power in a rule by law state. At the domestic level, this battle is played out when McCorquodale deploys Tom Bingham’s stirring response to Raz — though it is a response essentially based on a definitional shift that the rule of law means the rule of good law (pp.283-284).

At the international level, such a move is even more problematic. Indeed, warnings against a priori jumps to incorporate human rights can be found in the foundational human rights texts themselves. The Universal Declaration of Human Rights, which McCorquodale cites, provides in its preamble that “human rights should be protected by the rule of law”. Simply as a matter of construction it is tautological to define the rule of law as including the thing it is intended to protect. Similarly, McCorquodale cites (p.283) the Declaration on the Rule of Law, italicizing for emphasis the relevant phrases: “[We] reaffirm our commitment to the rule of law and its fundamental importance for … the further development of the three main pillars upon which the United Nations is built: international peace and security, human rights and development.” (The ellipsis, it should be noted, skips over the statement that the rule of law is also fundamentally important for “political dialogue and cooperation among all States”.)

McCorquodale sensibly does not seek to incorporate all human rights, but when he attempts to specify which to include, he falls back on the domestic law analogy that he has earlier so rightly spurned. Hence his list includes “the right to a fair trial, the right to liberty, the right to equality and the right not to be discriminated against” (p.293). All very important, but clearly linked to domestic law traditions and problems.

The justification for the inclusion of these specific human rights is linked to their presence in the “main global human rights treaties” and status as customary international law (p.293). The fact that these are obligations on states is not controversial, but folding them into a definition of the international rule of law raises additional problems when considering McCorquodale’s other contribution in his article: the attempt to find a definition of the rule of law that applies not only to states but also to international organizations and other subjects of international law.

It is arguable, for example, that the United Nations is subject to human rights obligations despite not being a party to any of the “main global human rights treaties”. Nevertheless, to assert that rule of law principles that apply to the UN and other international organizations incorporate such obligations must be based on more than a claim that such an assertion is “appropriate” (p.300). This is borne out in the Kadi cases and the UN’s Guiding Principles on Business and Human Rights, on which McCorquodale seeks to rely. In the former, the European Court of Justice applied rule of law principles in interpreting human rights obligations that are explicitly provided for within the EU legal system. In the latter, John Ruggie has been criticized by NGOs and activists precisely for his unwillingness to assert without foundation that corporations are bound by human rights obligations. (For more on this, see my “Lawyers, Guns, and Money”.)

McCorquodale does not go so far, but he concludes that section of his piece with a telling coda: “the application of human rights to the operations of the UN and other international organizations, as well as their applicability to non-state actors, are consistent with the human rights objective of the international rule of law” (p.303).

Does the rule of law really have a “human rights objective”? One can make a strong case that the rule of law makes human rights possible — that a world ordered by law is more predictable and stable, more prosperous and more harmonious, than one ordered solely by power. This is the transition that, over centuries, was made in states that went from “rule by man” to “rule by law” and now “rule of law”. But the content of that law at the international level is distinct from the ordering principle that establishes the conditions for law in the first place.

Diplomacy, once again, is an architecture of compromise. McCorquodale has made a significant contribution to debates over what the international rule of law can and should mean, though his conclusions are more normative than descriptive. My concern is that by seeking to blend form as well as substance, and to attribute to the rule of law an agenda that many states would equate with a Western liberal political bias, the structure’s foundations will be unable to bear the burden placed upon it.

This is not to suggest that human rights are unimportant. It is a signal achievement that human rights have moved from aspiration to norm in a mere seven decades, with all countries now submitting themselves to the Universal Periodic Review, for example. Such an achievement is clearly attributable in part to widespread acceptance of the rule of law at the national and international level. And, as member states agreed in the Declaration on the Rule of Law, human rights and the rule of law (and democracy) are “interlinked and mutually reinforcing” — but they are not the same thing.

The U.S.-Taiwan-China Relationship and the Evolution of Taiwan Statehood

by Lung-chu Chen

[Lung-chu Chen is an internationally recognized scholar and Professor of Law at New York Law School, specializing in international law, human rights, and the United Nations. He is the author of The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), and An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015).]

On May 20, 2016, Tsai Ing-wen will be inaugurated as the first female president of Taiwan. Tsai is the first member of the Democratic Progressive Party (DPP) to hold the presidency since the administration of Chen Shui-bian from 2000 to 2008. She will be the first DPP president to enter office with a DPP majority in the Legislative Yuan—a crucial condition for effective governance never afforded to Chen. The DPP has historically been associated with the movement for greater national independence for Taiwan, and, as many commentators have observed, the shift in power will reinvigorate the debate over Taiwan’s status under international law.

As I write in chapter two of my book An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015) and in my new book The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), the past thirty years have witnessed a profound and persistent movement of democratization—and Taiwanization—that runs counter to the People Republic of China’s (PRC) unrelenting claims of ownership over Taiwan. After decades of de facto independence and the emergence of a vibrant democratic society and national culture, the Taiwanese people will never be content to see their country become the next Hong Kong under a flawed “one country, two systems” formula. In my view, the time has come for the world community to support the Taiwanese people in achieving recognition of an evident fact: Taiwan is a state under international law, not a part of China.

Taiwan easily satisfies the traditional requirements for statehood as embodied in the 1933 Montevideo Convention: a permanent population, effective control over a territory, a government, and the capacity to interact with other states. Yet the realities of global power politics have kept Taiwan from being recognized as such. The PRC advances the fictitious claim that Taiwan is an integral part of China from time immemorial, but has never exercised control over Taiwan for a single day in its 67 years of existence since its founding in 1949. The situation is exacerbated by China’s campaign to strong-arm, coerce, and bribe states and international organizations to further isolate Taiwan. (The PRC’s insistence that Taiwan identify as a part of China as a condition to participating as an observer at the World Health Assembly provides a recent example.) Under the 2005 Anti-Secession Law, Chinese leaders arbitrarily empowered themselves to respond with force if Taiwan declared the obvious fact of its independence. The PRC’s unceasing threats of the use of force against Taiwan encroach upon the right of the Taiwanese people to self-determination and endanger the peace and security of the Asia Pacific and even the world community.

Some scholars, such as James Crawford in his The Creation of States in International Law (Oxford University Press, 2006), have written that Taiwan cannot be a state because it has not issued a declaration of independence from China. There is no precedent in international law for such a requirement. Even if there were one, President Chen’s 2007 application for UN membership in the name of Taiwan implicitly declared that Taiwan was an independent, sovereign, and peace-loving state that possessed the ability and willingness to carry out the purposes, principles, and obligations of the UN Charter. The move was tantamount to a “declaration of independence” addressed to all humankind.

I have advanced a solution to this stalemate based on a theory of the evolution of Taiwan statehood. I submit that Taiwan’s statehood is best understood in the context of an ongoing process of evolution propelled by the will of the Taiwanese people for self-determination and democracy. In chapter 12 of my new book, I stress that the time has come for an internationally supervised plebiscite on Taiwan’s future to be held in full view of the world community. This is not a new concept. It is a straight-forward application of existing international law.

It was not until 1887 that the Qing dynasty formally made Taiwan a province of China. Eight years later, following the Chinese defeat in the Sino-Japanese War of 1894-95, China ceded Formosa (Taiwan) and the Pescadores (Penghu) to Japan in perpetuity under the Treaty of Shimonoseki. In 1945, Japan surrendered control of Taiwan to the Allied forces, who delegated responsibility for military occupation of the island to the ROC army led by Chiang Kai-shek. In 1949, after the ROC’s defeat in the Chinese civil war, Chiang and his Kuomintang (KMT) supporters fled to Taiwan and established a regime in exile, imposing martial law, which lasted for 38 years until 1987. Taiwan remained a Japanese territory until the San Francisco Peace Treaty took effect in 1952. Under Article 2(b), Japan renounced all right, title, and claim to Taiwan. However, the Treaty’s framers were deliberately silent as to whom Japan was ceding the territory. It is important to note the San Francisco Peace Treaty—signed by 48 nations—superseded wartime declarations such as the Cairo Declaration and the Potsdam Proclamation.

In 1971, the United Nations General Assembly adopted Resolution 2758, expelling Chiang Kai-shek’s representatives and making the PRC the only lawful representative of China in the UN. In 1978, President Carter announced the United States would switch diplomatic recognition to the PRC while maintaining unofficial relations with the people of Taiwan. Following Carter’s announcement, (more…)

Symposium: Defining the Rule of Law

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. This is the introductory post in the Defining the Rule of Law Symposium, based on this article (free access for six months).]

References to the ‘rule of law’ in international law books, articles and blogs are everywhere. Yet very few of these authors set out what they mean by an international rule of law. Most of those who engage with the idea of an international rule of law dismiss it – almost with a shrug – as being impossible in a system without a clear binding governance process and without a court with uniform jurisdiction over all matters.

In my article – Defining the International Rule of Law: Defying Gravity? – which is published in the International and Comparative Law Quarterly, I offer a definition of the international rule of law. I also seek to show that an international rule of law can exist in the international system. My starting point is that, in order to understand the rule of law, and whether it can apply to the international system, it is necessary to clarify what are its key objectives. In my view, based on the writing of jurists such as Tom Bingham and by the Venice Commission, it is evident that the rule of law has four key objectives: to uphold legal order and stability; to provide equality of application of law; to enable access to justice for human rights; and to settle disputes before an independent legal body.

International organisations have taken up the idea of the importance of the rule of law with considerable alacrity. For example, the Declaration on Principles of International Law refers to the ‘paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations’. Reference to the rule of law is found in Security Council resolutions on peacekeeping, good governance and post-conflict, as well as in statements by the World Bank and as a target in the Sustainable Development Goals. The Declaration on the Rule of Law was made in 2012 by a UN High-Level Meeting on the Rule of Law at the National and International Levels. The UN has provided a definition of the term, which it sets out on its rule of law website:

“The Secretary-General has described the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”.

My difficulty is that almost all these statements and other attempts to consider the rule of law at the international level are really transpositions of the rule of law from national systems and national institutions to the international system. Given the considerable structural and institutional differences between national legal systems and the international legal system, this transposition is misconceived. Indeed, many of those who reject the possibility of an international rule of law also tend to confuse the compliance with international law with having a rule of law, or they expect that the rule of law is absolute: it exists or it does not exist in a legal system. This fails to understand the there are varying degrees of adherence to the rule of law. The Rule of Law Index shows this through its indexing of the relative compliance of states with the rule of law, where some states comply with most elements, some comply with very few and there are many in the middle. This must be equally applicable at the international level, where complete actualization of all the elements of the rule of law is unlikely and failure to attain them all does not mean there is no international rule of law at all.

So a definition of an international rule of law is possible if it is examined in terms of the four objectives of a rule of law: to uphold legal order and stability; to provide equality of application of law; to enable access to justice for human rights; and to settle disputes before an independent legal body. I explain in the article that these objectives can be found in the international system. I include access to justice for human rights deliberately, because a rule of law without this justice element is a rule by laws and not a rule of law. The protection of human rights should also not be confused with the rule of law as, while the latter includes access to justice (such by a fair trial) within it, the rule of law does not include all human rights.

I explore some ways in which this definition of the international rule of law can be applied in the current international legal system. This includes the importance of pacta sunt servanda, which is part of customary international law (and probably part of jus cogens), as applying to all states (and non-state actors) and as part of the international legal order. It also includes the amazing array of international dispute settlement procedures. While there is no compulsory procedure before one court, there are certainly many areas of international law for which there is a means to settle disputes before an independent legal body. Of course, it remains difficult to ensure compliance by the UN and other international bodies with their human rights obligations, yet the notion of access to justice is present, especially in UN administered territories and has been applied to corporations, so there is a lack of adherence to the international rule of law and not the lack of its existence.

A new approach to defining the international rule of law will, hopefully, make it easier to see how it is applied internationally to international organisations, to states and to non-state actors acting transnationally. This could lead to increasing adherence to the international rule of law.

Symposium: Defining the International Rule of Law–Defying Gravity?

by Jessica Dorsey

This week, we are hosting a symposium on Defining the International Rule of Law: Defying Gravity?, (free access for six months) the latest article from Robert McCorquodale, the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. The article was recently published in the International and Comparative Law Quarterly.

The article’s abstract:

This article aims to offer a definition of the international rule of law. It does this through clarifying the core objectives of a rule of law and examining whether the international system could include them. It demonstrates that there can be a definition of the international rule of law that can be applied to the international system. This definition of the international rule of law is not dependent on a simplistic application of a national rule of law, as it takes into account the significant differences between national and international legal systems. It seeks to show that the international rule of law is relative, rather than absolute, in its application, is not tied to the operation of the substance of international law itself, and it can apply to states, international organizations and non-state actors. It goes further to show that the international rule of law does exist and can be applied internationally, even if it is not yet fully actualized.

In addition to Professor McCorquodale’s introductory and concluding remarks, there will be posts from Heike Kreiger, Janelle Diller, John Tasioulas, Joost Pauwelyn and Simon Chesterman. We look forward to the discussion from our contributors and the ensuing commentary from our readers.

Everybody Has Friends, Why Not the ICC: On the Court’s Power to Appoint Amicus Curiae Prosecutors

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 the Bemba, et. al case]

A month ago the ICC Trial Chamber V(A) vacated without prejudice the charges of crimes against humanity against the sitting Kenyan Vice-President William Ruto. This case involved intense cross-parties allegations of witness tampering. Some of these allegations have been found serious enough to substantiate a warrant of arrest against a former journalist Walter Barasa, who is suspected of having influenced or sought to influence several persons to withdraw as Prosecution witnesses.

At trial, the Ruto Defense alerted the Prosecution and the Chamber to the conduct of certain Prosecution witnesses that, in its view, might be constitutive of offences against the administration of justice, to no avail. On May 2, 2016, it decided to take these allegations to the next level. It requested in essence that the Trial Chamber directs the Prosecutor to appoint an amicus to investigate several Prosecution witnesses, intermediaries and officials for the possible violations of article 70 of the Rome Statute.

The Office of the Prosecutor should not have to go to great pains to convince the Chamber to reject the Defense request. Although a Chamber may refer facts to the Prosecutor, the choice of whether and how to proceed, including what safeguards against possible conflicts of interests to put in place, is clearly hers. Specifically, pursuant to article 41(2) of the Statute, the Office shall act independently, and neither solicit, nor accept instructions from any external source.

However, the Ruto Defense may reconsider the relief sought and ask the Court to appoint an amicus curiae prosecutor directly.

Article 70 stipulates that “the Court has jurisdiction over […] offences against its administration of justice.” The Court determines on a case-by-case basis the best way to exercise this jurisdiction. Like any international organisation, the Court is free to act in any manner consistent with its founding treaty to achieve the goals of that treaty. For example, the Pre-Trial Chamber in the Bemba, et al. case appointed an independent counsel answerable directly to it to vet the evidence received from the domestic authorities for any privileged material.

Nothing in the statutory framework prevents the Court from appointing an amicus curiae prosecutor, at least with respect to the article 70 proceedings and in other cases, where appropriate. This may be the case, for example, when the allegations concern a member of the Office or a witness who testified for it. Proceedings contaminated by suspicion of collusion are unlikely to meet the standards of international justice. It is the Court’s duty to ensure such situations do not happen.

Under article 42(1) of the Statute, the Office is an organ “responsible for receiving referrals and any substantiated information on crimes […], for examining them and for conducting investigations and prosecutions before the Court.” This article merely describes the Office’s duties within the Court’s system without prohibiting their temporary transfer to another person or entity, if the good administration of justice so requires.  Neither the Statute, nor the Rules of Procedure and Evidence suggest that the Office of the Prosecutor has exclusive power to conduct investigations and prosecutions of the offences within the Court’s jurisdiction for the Court’s benefit.

Appointing an amicus to deal with the contemptuous conduct is normal practice at the ad hoc tribunals, including when the Prosecutor may be conflicted. Admittedly, there is an express provision to this effect in their Rules. Nevertheless, the parallel with the ad hocs seems apposite. No statute provides for the power of those tribunals to punish contempt or the modalities of its exercise; however, such powers are not expressly prohibited, either. Thus, the contempt cases are a good illustration of the international courts taking initiative to face challenges that have not necessarily been articulated by the drafters.

To allay the conflict of interests related concerns, the Office of the Prosecutor may envisage the creation of a special division dedicated exclusively to the investigation and prosecution of the article 70 offences. Such division should be comprised of investigators and trial lawyers acting independently and reporting directly to the Prosecutor or a special Deputy Prosecutor. Those who work interchangeably on the core crimes and article 70 offences naturally tend to employ the same techniques and strategies to both, losing in efficiency and speed, as what is good for the core crimes is usually bad for the article 70 offences. Specifically, whereas the core crimes cases are largely predicated on witness evidence, in the article 70 cases such evidence alone may be insufficient to sustain a finding of guilt. Having a focused team will enhance productivity and effectiveness in full respect of the Statute and the fair trial rights of the accused.

Foreign Volunteers or Foreign Fighters? The Emerging Legal Framework Governing Foreign Fighters

by Daphne Richemond-Barak and Victoria Barber

[Dr. Daphné Richemond-Barak is an Assistant Professor at the Lauder School of Government, Diplomacy and Strategy at IDC Herzliya, and a Senior Researcher at the International Institute for Counter-Terrorism (ICT). Victoria Barber is a Master’s candidate at the Fletcher School of Law and Diplomacy, where she focuses on International Security Studies.]

The emerging legal framework governing foreign fighters, whose importance is set to grow, epitomizes assumptions we’ve made about the good, the bad, and the ugly in Syria. While the international community condemns the recruitment of “foreign fighters” by ISIS, it condones the recruitment of “foreign volunteers” by the Kurds.

That the international community has come together to condemn the recruitment of foreign “fighters” joining the Islamic State in Iraq and Syria (ISIS) is unsurprising: Since the late 1960’s, it has repeatedly opposed the involvement of foreign individuals in conflicts to which their state of nationality is not a party. After decades of condemnation by the United Nations General Assembly and Security Council, an entire (albeit-ineffective) regime outlawing mercenaries emerged, primarily to stop Westerners from fighting in African conflicts. It sent a clear signal as to the illegitimacy of participating in someone else’s war.

Though it could have built on this well-established framework, which is grounded in state sovereignty, the UN chose a more restrictive and case-specific approach. It addressed exclusively the case of foreign fighters travelling to aid ISIS and other designated foreign terrorist organizations (FTOs) operating in Syria, such as Jabhat al-Nusra. It purposefully did not mention mercenaries, which are covered by the broader anti-mercenary regime. Nor did it address the case of individuals who leave their home countries to join other groups fighting in Syria – or, for that matter, to fight alongside the Syrian government and its allies.

Quite the contrary: Western states have generally taken a permissive stance vis-à-vis individuals who join the ranks of the People’s Defense Units (YPG), the Kurdish militia in Syria. For more than two years, foreigners from Australia, Canada, the United States, the UK, and other countries have joined the ranks of the YPG as “volunteers” who are, more often than not, warmly and publicly received upon their return home. The UK maintains that there is a distinction between joining ISIS and joining the Kurds, pointing out that British law is designed to allow for different interpretations based on the nature of the conflict. Similarly, the Dutch government states that, while joining the YPG is not a crime in and of itself, foreign fighters can still be charged for crimes they committed in service of that membership, such as murder. Israel, too, declined to prosecute, or even reprimand, a Canadian-Israeli woman who traveled to Syria to fight as a volunteer with the YPG. This tacit acceptance of “foreign volunteers” also benefits a smaller number of Westerners travelling to Syria and Iraq to fight alongside Christian militias like the Dwekh Nawsha in Iraq.

The discrepancy between the treatment of the “good” auxiliaries combating ISIS and that of the “bad” ones ISIS recruits sets a dangerous precedent: Why classify the YPG as an acceptable group to join, but ISIS, Hezbollah or al-Nusra as an unacceptable one?

The nature of the group plays a role. The Kurds are viewed as defending their ethnic heartland in Syria against a barbaric movement known for wanton murder and enslavement. They are longstanding inhabitants of the region, and have a vaguely defined moral claim to the Syrian northeast, though not, if we go by most of the international community, a claim to sovereignty. The Kurdish Regional Government is slightly further along the continuum, with an effectively autonomous region and its own quasi-army, the Peshmerga, fighting to defend its homeland, ethnic kin, and other minorities.

But as beleaguered as the Kurdish community in Syria and Iraq is, the logic of extending blanket legitimacy to Kurdish militia, while categorically denying it to others, is difficult to sustain at the level of international policy. Hamas and Hezbollah, like the Kurdish PKK, effectively govern territory and have evolved into organized and recognized bodies. Yet foreign participation in one of these groups is unlikely to be regarded as acceptable.

Assuming we draw the line along the state/non-state divide, which is the simplest, we should feel comfortable with the involvement of foreigners on either side of the Russia/Ukraine conflict. Both can be regarded as joining forces with a sovereign government, whether Ukrainian nationalists from outside the country or Russian separatists and ethnic kin backed by the Russian government. Yet international condemnation came down against both sides as diaspora populations volunteered to fight. This suggests that the state/nonstate divide is not, in and of itself, sufficient to distinguish between legitimate and illegitimate forms of intervention.

The distinction could instead come from the conduct of the organizations, allowing volunteers to join groups that act within the bounds of international law and respect human rights. This distinction is appealing, particularly given ISIS’ ruthless violence, but it is a poor barometer. Most groups involved in the Syrian civil war have been shown to commit war crimes, even if ISIS is in a category of its own. The YPG has itself been accused of using child soldiers and carrying out ethnic cleansing in the areas it controls. Khorasan, al-Nusra, and the Sunni Islamic militias are generally viewed as non-compliant with the laws of war, as are Syrian government-allied auxiliaries such as Hezbollah and Iraqi Shia militia. But “volunteering” for these latter groups has not drawn similar condemnation.

Alternatively, we might be tempted to regard volunteering as acceptable when the volunteer shares some kind of ethnic, religious or ideological roots with the group. This, however, could justify virtually any foreign participation in any conflict – particularly in Syria, where neither foreign fighters nor foreign volunteers are thought to receive any meaningful monetary compensation. Clearly, they must be joining the fight because they share some kind of ethnic, religious, or ideological affinity with a party to the conflict. This rationale, moreover, could apply to ISIS as much as the YPG. Taking the Ukrainian conflict again as an example, the same considerations would apply: ethnic Russians and Ukrainians travelling to Ukraine identify with the separatists and nationalists, respectively. A criterion relating to shared ethnic, religious, or ideological roots is thus unhelpful in delineating the contours of legitimate foreign intervention.

The upshot of this is that none of the suggested criteria provide a satisfactory justification for why states – and, for that matter, international law – view joining the YPG as acceptable, but joining ISIS (or al-Nusra) as reprehensible. This lack of regularity undermines existing policies, as it gives the impression that the distinction is based on ideology, which is a dangerous precedent to set. This development is especially alarming given that the Western-backed coalition (including Russia’s) objectives may not align with those of the YPG’s in the long-run. Kurdish territorial ambitions in a fragmented Iraq and Syria are likely to increase – not diminish – with battlefield success, pitting them against the US, Turkey, Russia, and Iran once the guns fall silent.

Should such a change of affinity occur in the fight against ISIS, it could undermine the legitimacy of the emerging regulatory framework governing foreign fighters and make for awkward moments. The UK government experienced some embarrassment when the prosecution of a Swedish national collapsed after it emerged that the group he had joined in Syria was receiving covert support from the British government itself.

Ultimately, the treatment of Western foreign fighters joining the YPG (while it may appeal to our present sympathies) is not as straightforward as many states have made it seem. In the absence of objective criteria, the Security Council’s strong and welcome measures against foreign fighters could be undermined. In the years to come, as Syria re-constitutes itself or further fragments into rump ethnic states, we may look back at today’s auxiliaries and ask ourselves with some confusion who were the “foreign volunteers” and who were the “foreign fighters” in Syria’s horrific civil war.

 

Thoughts on Jens’s Post about the Kunduz Attack

by Kevin Jon Heller

I read with great interest Jens’s excellent post about whether the US attack on the MSF hospital in Kunduz was a war crime. I agree with much of what he says, particularly about the complexity of that seemingly innocuous word “intent.” But I am not completely convinced by his argument that reading intent in the Rome Statute to include mental states other than purpose or dolus directus would necessarily collapse the distinction between the war crime of intentionally directing attacks against a civilian population and the war crime of launching a disproportionate attack. Here is the crux of Jens’s argument:

In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?

I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

I don’t want to focus on recklessness, because it isn’t criminalised by the Rome Statute. The lowest default mental element in Art. 30 is knowledge, which applies to consequence and circumstance elements — “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” So Jens’s real worry, it seems to me, is that reading the “intentionally” in “intentionally directing attacks against a civilian population” to include knowledge would mean a proportionate attack could be prosecuted as an intentional attack on a civilian population as long as the attacker was aware that civilians would be harmed “in the ordinary course of events” — a state of affairs that will almost always be the case, given that an attacker will engage in a proportionality assessment only when he knows that civilians will be incidentally affected by the planned attack on a military objective.

I’m not sure I agree. As I read it, the war crime of “intentionally directing attacks against a civilian population” consists of two material elements: a conduct element and a circumstance element. (There is no consequence element, because the civilians do not need to be harmed.) The conduct element is directing an attack against a specific group of people. The circumstance element is the particular group of people qualifying as a civilian population. So that means, if we apply the default mental element provisions in Art. 30, that the war crime is complete when (1) a defendant “means to engage” in an attack against a specific group of people; (2) that specific group of people objectively qualifies as a civilian population; and (3) the defendant “is aware” that the specific group of people qualifies as a civilian population. Thus understood, the war crime requires not one but two mental elements: (1) intent for the prohibited conduct (understood as purpose, direct intent, or dolus directus); (2) knowledge for the necessary circumstance (understood as oblique intent or dolus indirectus).

Does this mean that an attacker who knows his attack on a military objective will incidentally but proportionately harm a group of civilians commits the war crime of “intentionally directing attacks against a civilian population” if he launches the attack? I don’t think so. The problematic element, it seems to me, is not the circumstance element but the conduct element: although the attacker who launches a proportionate attack on a legitimate military objective knows that his attack will harm a civilian population, he is not intentionally attacking that civilian population. The attacker means to attack only the military objective; he does not mean to attack the group of civilians. They are simply incidentally — accidentally — harmed. So although the attacker has the mental element necessary for the circumstance element of the war crime (knowledge that a specific group of people qualifies as a civilian population) he does not have the mental element necessary for its conduct element (intent to attack that specific group of people). He is thus not criminally responsible for either launching a disproportionate attack or intentionally directing attacks against a civilian population.

To be sure, this analysis is probably not watertight. But I think it’s based on the best interpretation of the war crime of “intentionally directing attacks against a civilian population.” The key, in my view, is that the crime does not contain a consequence element — no harm to civilians is necessary. If the war crime was “intentionally directing attacks that cause harm to a civilian population,” the analysis would be very different: the crime would then consist of three material elements: a conduct element (intentionally directing an attack), a consequence element (harming a group of people), and a circumstance element (the harmed group of people qualifying as a civilian population).The applicable mental elements would then be quite different: the defendant would commit the war crime if he (1) intentionally launched an attack that harmed a civilian population, (2) knowing that the attack would harm a specific group of people, and (3) knowing that the harmed group of people qualified as a civilian population. And in that case, a proportionate attack on a legitimate military objective would qualify as “intentionally directing attacks that harm a civilian population” — a nonsensical outcome, for all the reason Jens mentions.

In the absence of the consequence element, however, this situation does not exist. As long as the defendant whose attack harms a civilian population meant to attack only a legitimate military objective, his knowledge that the attack would incidentally harm a civilian population would not qualify as the war crime of intentionally directing attacks against a civilian population. He would be guilty of that crime only if he meant to attack the civilian population itself.

Your thoughts, Jens?

NOTE: This post generally takes the same position Adil Haque took in a series of comments on Jens’s post.

Anchugov and Gladkov is not Enforceable: the Russian Constitutional Court Opines in its First ECtHR Implementation Case

by Marina Aksenova

[Marina Aksenova is a Post-doc at the Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen. You can reach her at: Marina [dot] aksenova [at] jur [dot] ku [dot] dk.]

On 19 April 2016, the Constitutional Court of Russia (CC) issued its pilot decision testing newly acquired powers to refuse the implementation of the rulings of the European Court of Human Rights (ECtHR) contradicting Russia’s Constitution. The case under review of the CC was Anchugov and Gladkov v Russia. In this case, the ECtHR previously found that automatic and indiscriminate ban on Russian prisoners’ voting rights was disproportionate and thus in violation of Article 3 of Protocol No. 1 (right to free elections) of the European Convention on Human Rights (ECHR). Ever since it was issued in 2013, the Russian authorities viewed this ruling as problematic because it directly contradicts Article 32(3) of the Russian Constitution, which reads as follows:

Deprived of the right to elect and be elected shall be citizens recognized by court as legally unfit, as well as citizens kept in places of confinement by a court sentence.

The CC has been enjoying powers to refuse the implementation of contested decisions of the ECtHR for only nine month, and, more precisely, since 14 July 2015 when it issued ground breaking decision to reaffirm the primacy of the Russian Constitution over the conflicting rulings of the ECtHR and any other international bodies tasked with human rights protection (some aspects of this decision are discussed here and in the second half of this post). On 14 December 2015, the legislature, in line with the position of the CC, amended the law regulating the operation of the Russian Constitutional Court, granting the President and the Government the right to appeal to the Court in instances when they suspect that executing the ruling of the ECtHR may contradict the Constitution. Following the introduction of this new internal review mechanism, the Ministry of Justice swiftly filed an appeal to the CC asking it to rule on the possibility of implementing the ECtHR judgment in Anchugov and Gladkov.

The CC held on 19 April 2016 that the ECtHR judgment in Anchugov and Gladkov could not be executed. The CC adopted, however, a diplomatic approach by not ruling out the introduction of future penalties involving non-custodial sentences that limit the freedom but do not impede on the voting rights. The CC nonetheless insisted on its previous interpretation of Article 32(3) as sufficiently discriminate to satisfy the requirements Article 3 of Protocol No. 1. The Court further stressed European pluralism in what concerns organisation of the electoral processes in different members states as well as inconsistent position of the ECtHR itself in matters concerning voting rights (the CC contrasted Hirst v UK (2005) and Scoppola v Italy (2012) judgments, pointing to a certain change of heart by the Strasbourg court).

The CC distinguished general measures and measures that benefit the applicant in making three important pronouncements:

  • Anchugov and Gladkov cannot be implemented in what concerns general measures involving repealing or changing the imperative provision of Article 32(3) of the Constitution given its supremacy within Russian legal system. The CC found it particularly troubling that the provision in question can only be changed by virtue of adopting a new Constitution;
  • Anchugov and Gladkov can be implemented in what concerns general measures ensuring fairness, differentiation and proportionality of the restrictions on voting rights. Here the CC adopted a rather questionable approach arguing that only a custodial sentence leads to the disenfranchisement of the offender concerned, which ensures sufficient differentiation because most of the first-time offenders charged with minor crimes do not get imprisoned, ergo their voting rights are intact. The ECtHR has however already dismissed this argument in Anchugov and Gladkov (para. 106) pointing to the lack of evidence that courts take into account impending disenfranchisement when deciding on the type of sanction to be imposed on the convicted person. Possibly sensing some weakness in this position, the CC made an additional promise for the future – the legislator may optimise Russian penitentiary system so as to ensure the existence of punishments limiting freedom but not involving imprisonment, thus guaranteeing voting rights to the convicted persons;
  • Finally, Anchugov and Gladkov cannot be executed in what pertains measures benefitting individual applicants because the applicants were convicted for serious offences and sentenced to fifteen years of imprisonment, automatically leading to their disenfranchisement. Moreover, restitutio integrum is simply impossible in this case for the elections that the applicants wished to participate in took place between 2000 and 2008.

14 July 2015 CC Ruling

The CC Anchugov and Gladkov ruling was made technically possible due to the adoption of (more…)

Jus ad Bellum Implications of Japan’s New National Security Laws

by Craig Martin

[Craig Martin is an Associate Professor at the Washburn University School of Law. He specializes in international law and the use of armed force, and comparative constitutional law He can be reached at: craigxmartin [at] gmail [dot] com.]

Far-reaching revisions to Japan’s national security laws became effective at the end of March. Part of the government’s efforts to “reinterpret” Japan’s war-renouncing Constitution, the revised laws authorize military action that would previously have been unconstitutional. The move has been severely criticized within Japan as being a circumvention and violation of the Constitution, but there has been far less scrutiny of the international law implications of the changes.

The war-renouncing provision of the Constitution ensured compliance with the jus ad bellum regime, and indeed Japan has not engaged in a use of force since World War II. But with the purported “reinterpretation” and revised laws – which the Prime Minister has said would permit Japan to engage in minesweeping in the Straits of Hormuz or use force to defend disputed islands from foreign “infringements” – Japan has an unstable and ambiguous new domestic law regime that could potentially authorize action that would violate international law.

By way of background, Article 9 of Japan’s Constitution provides, in part, that the Japanese people “forever renounce war as a sovereign right of the nation and the threat or use of force in the settlement of international disputes.” It was initially drafted by a small group of Americans during the occupation, and they incorporated language and concepts from the Kellogg-Briand Pact of 1928, and Article 2(4) of the U.N. Charter that had been concluded just months earlier. Thus, Article 9 incorporated concepts and language from the jus ad bellum regime for the purpose of imposing constitutional constraints that were greater than those imposed by international law, and waiving certain rights enjoyed by states under international law. While drafted by Americans, it was embraced by the government and then the public, such that it became a powerful constitutive norm, helping to shape Japan’s post-war national identity. (For the full history, see Robinson and Moore’s book Partners for Democracy; for a shorter account and analysis, see the law review article “Binding the Dogs of War: Japan and the Constitutionalizing of Jus ad Bellum”).

Soon after the return of full sovereignty to Japan in 1952, the government interpreted this first clause of Article 9 as meaning that Japan was entitled to use the minimum force necessary for individual self-defense in response to an armed attack on Japan itself. It also interpreted it as meaning that Japan was denied the right to use force in the exercise of any right of collective self-defense, or to engage in collective security operations authorized by the U.N. Security Council. These were understood to be the “sovereign rights of the nation” under international law that were waived by Japan as a matter of constitutional law.

All branches of government have consistently adhered to this interpretation every since. In 2014, however, frustrated in its efforts to formally amend Article 9, (more…)

Does the “Justice Against Sponsors of Terrorism Act” Violate International Law?

by Julian Ku

President Obama has threatened to veto a bill pending in the U.S. Congress that would allow private plaintiffs to sue foreign sovereigns for committing (or abetting) terrorist attacks inside the territory of the United States.  The Justice Against Sponsors of Terrorism Act has broad bipartisan support in Congress and from all of the presidential candidates (including Hillary Clinton). It would add an exception to the general rule of  immunity for foreign sovereigns in U.S. courts in cases

in which money damages are sought against a foreign state arising out of physical injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of the office or employment of the official or employee (regardless of where the underlying tortious act or omission occurs), including any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act...

(emphasis added).

The bill drew more attention this week when the NY Times reported that Saudi Arabia is threatening to dump $750 billion in U.S. assets in retaliation for allowing the bill to become law.  Lawsuits from September 11 victims against the Saudi government would benefit tremendously from this law.

Anything with this much bipartisan support must be wrong in some important way. I suppose one reason to be skeptical is that it would mix delicate political and diplomatic relations into judicial proceedings where private lawyers can demand discovery into a foreign government’s internal deliberations and activities.

 Another reason is that there seems little basis in international law for creating an exception to sovereign immunity for terrorist attacks, or supporting terrorist attacks.  The traditional view of sovereign immunity is that it is absolute, and that remedies against a sovereign must be sought in diplomatic or international fora.  Allowing a domestic judicial proceeding to judge the actions of a foreign sovereign would seem to undermine this basic idea.

But there are exceptions to sovereign immunity, such as for commercial activities, that much of the world accepts. It is just not clear whether a new exception can and should be created here. I am doubtful, but I am willing to be convinced.

The $50 BILLION Treaty Interpretation Question: Dutch Court Sets Aside Yukos Award Against Russia

by Julian Ku

Russia scored a huge victory today when the Hague District Court in the Netherlands court set aside a $50 billion arbitral award in favor of former shareholders of Yukos.  The $50 billion Yukos award (that’s BILLION, with a “B”),  is the largest arbitration award ever issued, was issued under the authority of the Energy Charter Treaty.  The arbitral tribunal (hosted at the Permanent Court of Arbitration) had found that the Russian government was liable for expropriating the former shareholders of Yukos through use of tax laws, harassment, criminal punishments, and other government measure without providing adequate compensation.

The Hague District Court set aside the award on jurisdictional grounds.  According to this English-language summary, the Dutch court held that Russia was not bound to arbitration under the Energy Charter Treaty because it never ratified the ECT.  The arbitral tribunal held in its interim award that Russia was bound under Article 45, which calls for provisional application of the treaty pending ratification.  But the Hague District Court disagreed.

Here is Article 45(1) and (2)(a):

(1) Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.

(2) (a) Notwithstanding paragraph (1) any signatory may, when signing, deliver to the Depository a declaration that it is not able to accept provisional application. The obligation contained in paragraph (1) shall not apply to a signatory making such a declaration. Any such signatory may at any time withdraw that declaration by written notification to the Depository.

Russia did not make such an Article 45(2) declaration, but the Dutch Court held that Article 45(1) still acted as a jurisdictional bar on the arbitral tribunal’s jurisdiction because it requires the arbitral tribunal to go back and assess whether the dispute resolution provision (Article 26) of the Energy Charter treaty is “inconsistent” with Russia’s “constitution, laws or regulations.”  the Dutch court concluded that Russia’s constitution does not permit it to be bound to an arbitration assessing the legality of its tax laws without the consent of its legislature.

I don’t have a strong view on who is right here. I will note that Russia is represented by the well-known New York law firm Cleary Gottlieb (where I once toiled as a young summer associate) and that Russia mustered an impressively long list of international law experts on its behalf such as Martti Koskenniemi, Alain Pellet, and Gerhard Hafner (to list just a few).  The claimants had their own impressive list including James Crawford and my former Yale professor Michael Reisman.  This is a truly difficult treaty interpretation question, which just happens to have $50 billion riding on it.  So we can be sure there will be an appeal of the Hague District Court’s ruling.

It is worth noting that also that Russia has a lot riding on this case, but it also decided to litigate this matter fully even though it believes the tribunal has no jurisdiction.  This turns out to be a smart move, since they seem to have won (for now) and because not litigating would have still subjected them to lots of enforcement actions against them around the world. So litigation seems to have worked out for Russia this time. I wonder if that will encourage Russia  to try its hand at litigation in future cases as well?