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International Courts and Dispute Resolution

Mike Lewis Is Wrong About the Nature of Self-Defence

by Kevin Jon Heller

Mike Lewis has a guest post at Just Security today responding to Ryan Goodman’s recent post exploring what the US’s claimed “unwilling or unable” test for self-defence against non-state actors means in the context of Syria and ISIS. Ryan, careful scholar as always, rightly points out that the test “remains controversial under international law.” Mike doesn’t seem to have any such qualms, but that’s not what I want to respond to here. Instead, it’s important to note that Mike makes a basic error concerning how the “unwilling or unable” test functions — assuming for sake of argument it is a valid approach to self-defence under Art. 51 of the UN Charter (emphasis mine):

It is important to note that this interpretation does not give the US unlimited license to act in violation of the sovereignty of other states as some opponents of the standard claim. There are limits and dangers associated with taking such a course of action. First of all, an intervening state can only take such actions after giving the host/target state a meaningful opportunity to prevent its territory from being used by the non-state actor to launch attacks. In the case of Syria, there is no question that it is unable to control the territory under ISIS control so further delays are unnecessary. Secondly, the intervening state does so at its own peril. Syria can rightfully interpret any strikes as aggression by the US and it is justified in taking steps to prevent such attacks and to destroy the drones/aircraft conducting such attacks.

Um, no. The entire point of arguing self-defence — in any form, including pursuant to the controversial “unwilling or unable” test — is that it cures any violation of state sovereignty under Art. 2(4) of the UN Charter. So if the US attacked ISIS in Syria because Syria was unwilling or unable to prevent ISIS from using its territory as a base for attacks, the US would not violate Art. 2(4) and Syria would have no right whatsoever to act in self-defence against that armed attack. Indeed, any attempt to “prevent such attacks and to destroy the drones/aircraft conducting such attacks” would represent an act of aggression by Syria against the US, thereby opening the door to legitimate acts of self-defence against Syria itself.

Again, I don’t accept that the “unwilling or unable” test reflects current customary international law. But it’s important not to let that debate obscure how self-defence functions under Art. 51 of the UN Charter.

What I Did on My Summer Vacation: Russian Edition

by Jens David Ohlin

Russia has skillfully managed to devote military support to the separatists in Eastern Ukraine. Just how much support — and what kind of support — is unclear, since Russia formally denies that they are directly involved in the ongoing hostilities there. Ukrainian officials have insisted that they have specific proof that Russian troops and their equipment have not only crossed the border into Ukraine but have also engaged Ukrainian government troops. It is not unreasonable to speculate that, but-for the Russian assistance, the conflict would have concluded long ago with a Ukrainian government victory over the rebels.

In the face of mounting evidence of Russian involvement, the rebels have claimed that Russian soldiers deployed in Ukraine are there voluntarily while on vacation. This is an obvious attempt to deny Russian liability, under basic rules of state responsibility, for the actions of the troops. The question is whether this argument holds any water.

First, it is unclear whether the statement is accurate. The world community does not have access to the W2s, or the Russian equivalent, for the soldiers — so if the rebel leaders are lying, the world would have no idea. I also find it hard to believe that Russian troops, or any government troops for that matter, would voluntarily place themselves in harms way for no compensation whatsoever.  More likely they are receiving cash payments covertly.

Second, even if the claim is true, and the Russian commanders have officially placed the soldiers on vacation (or furlough), there is the additional issue that they are no doubt using Russian government equipment, as opposed to their private “home” materials. While individual soldiers might own personaI firearms, I find it hard to believe that Russian troops own their own armored personnel carriers that they keep in their backyards for “vacation” purposes.

Third, and perhaps most importantly, it is unclear what the legal consequences of these “vacation deployments” are even if they are true. The standard is whether the troops are under the control (either effective control or overall control depending on which standard applies) of the Russian government. Employment and monetary payments are just one way of exercising control, as is operational control. However, suppose Russia provides the rebels with 50,000 troops who are “volunteering” to fight with the rebels? Would this automatically entail that Russia has no control over the troops? It seems to me that control requires a richer formulation, one that is sensitive to the varying ways that states can engage in covert assistance across borders. Although states may attempt to deny responsibility for this assistance, this does not mean that international law should let them without suffering the consequences.

In Nicaragua, the ICJ concluded that the mere provision of financial or military assistance, standing on its own, is insufficient to generate state responsibility for the actions of the assisted troops (via direct imputation). This was (and is) a sensible precedent, because the basic contours of complicity requires that international law recognize the various ways that assistance can trigger responsibility. Even if Russia only organized and armed the troops, but did not directly pay them a salary, it would seem to me that this constitutes an illegal interference in Ukrainian domestic sovereignty (with regard to both political independence and territorial integrity), in violation of the UN Charter and customary international law (in much the same way as the ICJ concluded in Nicaragua).

Of course, all of this might be moot. It is possible that Russia is engaged in direct operational control over the rebels, with logistical coordination, air support, and satellite imagery, that unquestionably demonstrates their responsibility even under the effective control test. But at this point the facts are very much unknown.

A Response to Bobby Chesney — Part I

by Kevin Jon Heller

My friend Bobby Chesney has responded at Lawfare to my previous post arguing that Title 50 does not provide the CIA with a public-authority justification to kill Americans overseas. He disagrees with both of the limits on presidential authority to authorise covert action I discussed. I will address the Article II question in a separate post; in this post I want to discuss the “traditional military activity” (TMA) exception to Title 50′s definition of “covert action.” Here is what Bobby writes:

CIA Drone Strikes Don’t Qualify as TMA: As an initial matter, I think one part of his argument depends on a mistaken assumption regarding the meaning of TMA, and that drone strikes do indeed constitute covert action within the meaning of Title 50. The TMA exception to covert action has a complicated and often-misunderstood history, which I recount in detail in this paper (pp. 592-601 especially). The concept was the subject of extensive negotiations between the White House and Congress, ultimately resulting in the following agreement. An activity that otherwise would qualify as covert action would instead count as TMA, thus avoiding the requirement of a written presidential finding and reporting to SSCI and HPSCI, if the following conditions were met.

The operation:

1) was commanded and executed by military personnel, and

2) took place in a context in which overt hostilities either were

(a) ongoing, or

(b) “anticipated (meaning approval has been given by the National Command Authorities for [i] the activities and for [ii] operational planning for hostilities).”

The CIA drone strike program as a general matter almost certainly does not satisfy this test, especially the first prong. This is why it has been long considered by both the Bush and Obama administrations to be covert action, not TMA. If the covert-action statute is capable of conferring the benefits of the public-authority justification, then, it does so here.

I think this response elides the difference between two different situations: (1) where the military wants to use force covertly against al-Qaeda; and (2) where the CIA wants to use force covertly against al-Qaeda. As Bobby’s article brilliantly explains, the TMA language was included in Title 50 because neither President Bush nor the military wanted a presidential finding — with its attendant reporting requirements — to be required every time the military engaged in a covert action. They wanted, in other words, the military to have the right to covertly engage in its traditional warfighting activities without having to acknowledge it was doing so. After much negotiation, Congress ultimately agreed to carve out a category of military actions that would not qualify as “covert actions” for purposes of Title 50, even when not acknowledged: namely, actions that satisfied the two requirements Bobby quotes. The TMA exception thus permits the military to use force covertly against al-Qaeda without a presidential finding as long as the action in question is commanded and executed by the military (check) and takes place in the context of ongoing hostilities (check).

The TMA functions very differently in the context of covert action by the CIA. There is no question that the military is authorised to engage in the kind of activities against al-Qaeda that, when done covertly, may fall under 50 USC 3093.  The military is always authorised to use force against enemy combatants in an armed conflict. The AUMF is simply the latest example of such authorisation. The CIA, however, is in a completely different situation. For all the reasons I discussed in an earlier post, the AUMF does not authorise the CIA to use force against al-Qaeda at all. So the primary question is not whether the CIA can use force against al-Qaeda covertly, but where the CIA gets its authority to use force against al-Qaeda in the first place.

The most obvious answer is, of course, 50 USC 3093

It’s Time to Reconsider the Al-Senussi Case. (But How?)

by Kevin Jon Heller

As readers are no doubt aware, Libya has descended into absolute chaos. As of now, there is quite literally no functioning central government:

Libya’s newly elected parliament has reappointed Abdullah al-Thinni as prime minister, asking him to form a “crisis government” within two weeks even as the authorities acknowledged they had lost control of “most” government buildings in Tripoli.

Senior officials and the parliament, known as the Council of Representatives, were forced last month to relocate from the capital to Tubruq in eastern Libya after fighting broke out between the Dawn of Libya coalition, led by brigades from the city of Misurata, and rival militias based at the city’s international airport.

Since then the airport has fallen to the Islamist-affiliated coalition and Tripoli appears to have slipped almost completely out of the government’s grip.

Mr Thinni’s administration said in a statement posted on its Facebook page late on Sunday night that it had lost control of Tripoli and that its officials had been unable to access their offices, which had been occupied by opposition militias.

“We announce that most ministries, state agencies and institutions in Tripoli are out of our control,” said the government. Some state buildings had been occupied by armed groups and staff, including ministers and undersecretaries, had been threatened and prevented from entering, it said.

“It has become difficult for them to go to their offices without facing either arrest or assassination, especially after several armed formations announced threats against them, attacked their homes and terrorised their families,” the statement added.

The collapse of the Libyan government comes less than five weeks after the ICC Appeals Chamber unanimously decided that the case against Abdullah al-Senussi was inadmissible. In its view at the time — to quote the summary of the admissibility decision — “the case against Mr Al-Senussi is being investigated by Libya and… Libya is not unwilling or unable genuinely to carry out the investigation.”

Whatever the merits of the Appeals Chamber’s decision at the time — and they’re limited — the situation on the ground in Libya has obviously rendered it obsolete. It is now impossible to argue that the Libyan government is “able” to effectively prosecute al-Senussi, no matter how willing it might be. The Court thus needs to reconsider the admissibility of his case sooner rather than later.

Fortunately, the drafters of the Rome Statute anticipated just such a situation. Art. 19(10) specifically provides that  “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.” The OTP should submit such a request as soon as possible; whatever hesitation it once had about forcefully asserting the admissibility of the case, there is now no possible justification for not trying to take control of it.

But what about al-Senussi? Can he challenge the inadmissibility decision? It’s a very complicated issue — but I think the best answer, regrettably, is that he cannot…

I’ve Thought About It Some More: And I Still Think Argentina’s World Court Lawsuit Against the U.S. is Bogus

by Julian Ku

Reasonable people can disagree about the legal merits of U.S. court judgments against Argentina requiring it to pay holdout creditor hedge funds. But I can’t say the same about Argentina’s recently announced claim against the United States at the International Court of Justice. Based on Argentina’s own description of its legal arguments, I stand by my earlier assessment: Argentina’s international law claim against the United States is frivolous and would have almost no chance of succeeding, even if Argentina somehow convinced the U.S. to accept ICJ jurisdiction.

Although Argentina’s complaint to the ICJ has not been publicly released, it is likely that Argentina will accuse the U.S. of allowing its court system to violate Argentina’s immunity rights as a nation-state and to interfere in Argentina’s ability to pay its non-holdout creditors through U.S. banks.

What makes this claim ridiculous is that Argentina chose to grant the U.S. judicial system a wide-ranging jurisdiction over bonds it sold to private investors. When issuing those bonds, Argentina promised that it had “irrevocably agreed not to claim and has irrevocably waived” immunity “to the fullest extent permitted by the laws of the U.S. and New York. Argentina also agreed to allow “any of its revenues, assets or properties” to be subject to judicial execution and enforcement to whatever degree permitted by U.S. law.

Okay, This Time Britain Really Has Killed Terrorism (Updated)

by Kevin Jon Heller

Last November, I wrote a post entitled “Terrorism Is Dead, and Britain Has Killed It.” I chose that title because I couldn’t imagine a conception of terrorism more absurd than the one argued by the British government and accepted by a Divisional Court: namely, that David Miranda’s mere possession of documents illegally obtained by Edward Snowden qualified as terrorism under the Terrorism Act 2000.

I obviously need to expand my imagination.

Why? Because the British government’s is now arguing that merely watching the video of James Foley’s execution is terrorism. From the Telegraph:

Viewing or sharing the harrowing video of James Foley’s beheading online could be regarded as a terrorist offence, Scotland Yard has warned.

A spokesman for the Metropolitan Police said specialists from the Counter Terrorism unit were continuing to examine the footage in order to look for clues as to the identity of the suspected British jihadist but said the public should refrain from viewing the video.

In a statement a spokesman said: “We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under Terrorism legislation.”

Metropolitan Police Commissioner Sir Bernard Hogan-Howe explained that while viewing the video was technically a crime, his officers would be more focused on tracking down those who shared the footage or glorified it.

Um, no — viewing the Foley video is not “technically a crime.” Foley’s execution is a horrific act by a horrific organisation. But there is absolutely no plausible argument that merely watching a video of it qualifies as terrorism under the Terrorism Act 2000 — not even in light of the awful Miranda judgment. We can see why by quoting the UK Independent Reviewer of Terrorism Legislation‘s summary of that case:

What the Miranda judgment reveals is that the publication (or threatened publication) of words may equally constitute terrorist action. It seems that the writing of a book, an article or a blog may therefore amount to terrorism if publication is “for the purpose of advancing a political, religious, racial or ideological cause”, “designed to influence the government” and liable to endanger life or create a serious risk to health or safety.

There are two obvious problems with considering the mere act of watching the Foley video an act of terrorism. First, watching the video is not “liable to endanger life or create a serious risk of health or safety,” as required by s 1(2) of the Terrorism Act 2000 — unless, of course, we think that anyone who watches it will somehow magically be transformed into an ISIS terrorist. Second, although I don’t understand why anyone would want to watch the savage murder of an innocent person, individuals are clearly not watching the video “for the purpose of advancing a political, religious, racial or ideological cause” or because they intend “to influence the government.” So no, watching the Foley video does not qualify as a terrorist act under s 1(1).

Nor does merely watching the Foley video violate any of the substantive offences in either the Terrorism Act 2000 or the Terrorism Act 2006. (Section 1(1) is not an offence in itself; it provides the definition of terrorism for the substantive offences.) In terms of the Terrorism Act 2000, it’s not “support” under s 12, because that section requires the defendant to have “invite[d] support for a proscribed organisation.” It’s not “use and possession” under s 16, because that section, like s 1(1), requires the specific intent to promote terrorism. It’s not “possession for terrorist purposes” under s 57, because merely having the Foley video on a computer (which streaming does not even involve) does not “give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.” And it’s not “collection of information” under s 58, because an execution video, though disgusting, is not “a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism.”

Merely watching the Foley video also does not run afoul of the Terrorism Act 2006. Section 1 criminalises “encouragement of terrorism,” but it applies only to those who “publish” a statement that encourages “the commission or preparation of acts of terrorism.” Watching a video is not publication. For similar reasons, watching a video does not qualify as “dissemination of terrorist publications” under s 2 — not even in light of s 2(2)(f), which criminalises possessing a terrorist publication “with a view to its” dissemination.

In his most recent report, the Independent Reviewer wrote that “[a] statutory definition [of terrorism] so broad that the enforcement authorities resort to their own rules of thumb in order to make sense of it is unhelpful.” I think the Metropolitan Police’s argument about the Foley video makes his point.

NOTE: I have updated the post in response to Adrian Hunt‘s excellent comment below, which deserves to be read in full.

A Tale of Two Baarles: Crazy-Quilt Maps and Sovereignty Over Certain Frontier Land

by Chris Borgen

Map credit: Wikimedia Commons via Radiolab

Map credit: Wikimedia Commons via Radiolab

Radiolab has  posted an informative and entertaining essay entitled “How to Cross 5 International Borders in 1 Minute without Sweating.” It describes the intertwined municipalities of the Dutch town Baarle-Nassau and the Belgian town Baarle-Hertog. Here’s the evocative description by Robert Krulwich of Radiolab:

The hunky yellow bit labeled “H1″ (for Hartog) toward the bottom is mostly the Belgian town. But notice those little white bits inside the yellow — labeled “N1, N2, N3″ — those are little patches of the Dutch town (N for Nassau). The two towns are not geographically separate. Instead, they’re like M&M’s in a candy bowl. There are 22 distinct Belgian bits, and a dozen or so Dutch bits, and they are sprinkled together; so sometimes you’ve got bits of Belgium inside Dutch areas, and sometimes Dutch patches inside Belgian neighborhoods. They vary in size. The largest is 1.54 square kilometers, the smallest, an empty field, is 2,632 square meters.

Krulwich is correct to note that in the Middle Ages “Checkerboard maps were common.” One reason they were common was that feudalism had a different conception of sovereignty than the “modern” conception of sovereignty that became prevalent in the years following the Peace of Westphalia in 1648. Rather than strictly territorial, medieval sovereignty was in part relational, between lords and subjects as well as between and among varying levels of nobility. With an emphasis on personal loyalty and duty, the feudal conception of sovereignty was like a network of individuals with multiple linkages and relationships.  Displaying such relationships as a territorial map with bold-line boundaries results in a crazy quilt that may actually obscure the complex interwoven relationships.

But the Westphalian emphasis on territorial sovereignty called for such bold-line maps. Areas that started as territorial patchworks were usually consolidated and rationalized. Krulwich continues:

But for some reason, writes Alastair Bonnet in his new book, Unruly Places, it didn’t [happen here]. During Napoleon’s time, villages were swept cleanly into one nation or another, the borders tidied up, but apparently — and no one can quite explain why — Baarle-Nassau and Baarle-Hertog escaped the broom. Maybe they were too small, too unimportant, but they made it through, their mosaic-ness intact, becoming, Bonnet says, a “living laboratory of medieval micro-borders.”

For more detail on the land grants, treaties, planning commissions, and other aspects of the history of these two towns, see this website.

This mosaic of sovereignty has led to some incredible results. In a 2008 post on Baarle-Hertog/ Baarle-Nassau,  BLDGBLOG reported that:

Sarah Laitner, at the Financial Times, adds that “women are able to choose the nationality of their child depending on the location of the room in which they give birth.”

For more about the administration of Baarle-Hertog and Baarle-Nassau, see this .pdf.

The contested status of two specific plots created by these micro-borders led to a dispute before the International Court of Justice, Sovereignty over Certain Frontier Land (Belgium/ Netherlands). The ICJ found that the plots in question were under Belgian sovereignty.

While perhaps the most complex territorial enclave, the two Baarles are not the only examples; see  the website European Small Exclaves. You can also see more about Swiss cheese sovereignties and cartographic discrepancies in this post I wrote a while back. (And the part about cartographic discrepencies should really be considered by that guy trying to found a Kingdom of North Sudan for his daughter…)

 

 

Emerging Voices: Interstate Arbitration: Awakening the “Sleeping Beauty of the Peace Palace”

by Tamar Meshel

[Tamar Meshel is an SJD Candidate at the University of Toronto Faculty of Law.]

In the early 1990s, a trend emerged among international legal scholars and practitioners aimed at reviving the Permanent Court of Arbitration (PCA) and, by extension, the use of arbitration to resolve interstate disputes peacefully. The PCA was created during the 1899 Hague Peace Conference, following a century of successful interstate arbitrations such as those between the United States and Great Britain under the Jay Treaty and the Treaty of Ghent, and it reflected the high hopes of the conference participants that the institution would bring about world peace through arbitration. However, after a decade or two of glory, the PCA gradually fell into disuse as states lost interest in arbitration as a dispute resolution mechanism, and it became aptly known as the “Sleeping Beauty of the Peace Palace” (Sam Muller & Wim Mijs, “The Flame Rekindled” (1993) 6(2) Leiden Journal of International Law). There are many political, historical, and legal rationales for this downturn, including the outbreak of the two World Wars, changes in the international political system, and the creation of the PCIJ and ICJ. This post focuses on another development that, while perhaps less recognized, is arguably responsible in part for the decline of interstate arbitrations during the 20th century, and is still relevant today. This development is the gradual ‘judicialization’ or ‘legalization’ of interstate arbitration to the point of being effectively equated with judicial settlement and both its original nature and distinctive qualities becoming imperceptible and inconsequential.

The evolution of interstate arbitration

The origins of arbitration can be traced back to ancient Greece, where arbitrators were seen as quasi-diplomats rather than judges, and could therefore “consider the equity of the case, whereas a judge is bound by the letter of the law” (Aristotle, cited in M.C.W. Pinto, “The Prospects for International Arbitration: Inter-state Disputes” in A.H.A. Soons, ed, International Arbitration: Past and Prospects (Martinus Nijhoff Publishers, 1990)). Arbitration continued to be used during the Middle Ages to end wars by reconciling the warring parties, and when the modern era of interstate arbitration began with the signing of the 1794 Jay Treaty between Great Britain and the United States, it was perceived as a hybrid process that combined legal proceedings with diplomatic negotiations. For instance, some of the disputes submitted to arbitration under the Jay Treaty were to be decided according to “justice, equity, and the laws of nations”, and their successful settlement was largely credited to the commissioners’ “spirit of negotiation and compromise”. While they rendered binding decisions and applied legal principles, the commissioners also “act[ed] to some extent as negotiators rather than as judges … temper[ed] justice with diplomacy [in order] to give a measure of satisfaction to both sides” (Pinto, 1990).

This perception of interstate arbitration persisted in the first decades of the 20th century. Some states, for instance, distinguished between judicial settlement, designed to resolve “legal disputes”, and arbitration, designed to resolve all other disputes ex aequo et bono while “having regard to the general principles of international law” (e.g., the 1928 Geneva General Act for the Pacific Settlement of International Disputes (.pdf); the 1957 European Convention for the Peaceful Settlement of Disputes). Arbitrators were also “prepared to waive a strict application of the law in order to achieve an acceptable settlement” in interstate disputes, such as the 1909 Casablanca case and the 1910 North Atlantic Fisheries case (M.C.W. Pinto, “Structure, Process, Outcome: Thoughts on the ‘Essence’ of International Arbitration” (1993) 6 Leiden Journal of International Law). However, as a result of the growing global quest during the 20th century for “orderly” interstate dispute settlement through the application of law, this quasi-diplomatic use of interstate arbitration gradually fell into disuse, and the dominant perception became that of the International Law Commission, which viewed it as “a procedure for the settlement of disputes between States … on the basis of law” (Pinto, 1990 (.pdf)). Accordingly, states increasingly restricted or excluded the power of arbitrators to decide disputes on the basis of equity or non-legal considerations and in all but a few rare, yet successful, cases (e.g., the 1968 Rann of Kutch arbitration; the 1986 Guinea-Guinea Bissau arbitration) arbitrators followed suit. The perception that only ‘judicial’ arbitration based on law should be “arbitration properly so called” thus became the conventional wisdom, even though in some cases, such as the 1977 Beagle Channel arbitration, it failed to resolve the parties’ dispute (Pinto, 1990, 1993). (more…)

Guest Post: Are States Injured by Whaling in the Antarctic?

by Priya Urs

[Priya Urs has recently received a Master of Law (LL.M.) with a specialisation in International Law from the University of Cambridge, U.K.]

The recent Whaling in the Antarctic decision of the International Court of Justice (ICJ) has unraveled existing debates about the propriety of whaling today, illustrated by the pivotal determination of whether the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) was in line with the object and purpose of the International Convention for the Regulation of Whaling 1946, and what that object and purpose might be. This issue, in turn, raises less discussed questions about the nature of the obligations the Convention imposes on contracting states; specifically, whether it includes an obligation erga omnes to refrain from commercial whaling. In this brief post I describe what the dispute does and does not tell us about the increasingly multilateral quality of state obligations, allowing even non-injured states like Australia to hold others accountable for obligations owed to the international community as a whole.

Multilateralism in International Law

Australia in its application to the Court alleged that the Japanese Government’s authorization of commercial whaling under the guise of scientific research was a violation of its obligations under international law – the Convention in particular, as well as ‘other obligations’ for the preservation of marine mammals and the marine environment. New Zealand (intervening) went a step further, suggesting that Japan’s actions were a challenge to the system of collective regulation established by the Convention, including contracting parties’ duty of ‘meaningful co-operation’. Japan on the other hand insisted that JARPA II was in line with the treaty’s Article VIII exception for scientific research, also claiming that there exists in customary international law a freedom to engage in whaling.

Considered collectively, the tenor of these various arguments raises a larger question about the very nature of state obligations: have multilateral ‘law-making’ treaties become the dominant source of obligations among states in contemporary international law? Professor James Crawford in a recent publication argues that to a large extent, they have. This trend is evident not only from the pleadings of Australia and New Zealand that conservation is a collective interest among states, but from the framework of the Convention itself. The Court’s discussion of the system of regulation set up by the Convention alludes to the cooperative effort among states contemplated during its drafting. In particular, the majority opinion notes the ‘significant role’ accorded to the Whaling Commission in regulating the activities of contracting states. In sum, whether the Convention amounts to a prohibition on or merely the regulation of commercial whaling, its law-making effect is well established.

The obvious conclusion to be drawn, then, is that multilateral agreements – such as the present Convention – are not merely aggregations of bilateral relationships. Their multilateral effect is manifested in the interest of states like Australia and New Zealand in ensuring mutual compliance irrespective of their ability to make claims to specific injury arising out of Japan’s violation. As a result, irrespective of whether the Convention was intended to prohibit commercial whaling as a conservationist effort, or simply to regulate states’ access to a common resource, this emphasis by the Court reaffirms this trajectory in the development of international law.

Obligations Erga Omnes

What is interesting about the proceedings in this dispute, then, is an issue that was not debated at all. Japan made no challenge to Australia’s standing before the Court (only making a challenge to ICJ jurisdiction using Australia’s reservation to the Convention), seemingly accepting as law the proposition that even though Australia was not an injured state in a bilateral relationship with Japan, it had a legal interest in ensuring widespread compliance among contracting states. This conclusion is purely conjecture, yet, regardless of whether this omission was a conscious decision or a glaring mistake by Japan, it is indisputable that all three parties’ positions in the Whaling dispute fall in line with the ICJ’s gradual recognition of obligations erga omnes over the last half-century.

Quick to offer an apology for its rejection of Ethiopia and Liberia’s public interest claim against South Africa in the South West Africa Cases, in 1970 the Court in its famous dictum in Barcelona Traction identified obligations erga omnes for the first time as obligations owed to the international community generally. It was only in 2012, however, that the question of standing was addressed by the Court directly, affirming in Obligation to Prosecute or Extradite that all states – including Belgium, a non-injured state – had a legal interest in ensuring Senegal’s compliance with the Convention Against Torture 1984.

This trend is reflected most clearly in Article 48 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts 2001 (ARSIWA), a progressive development of the law in which, instead of diluting the definition of an injured state, the ILC ultimately chose to recognise the right of a non-injured state to invoke the responsibility of a state in violation of its international obligations. Though not formally, the ICJ has affirmed the text of Article 48(1)(a) in its 2012 decision in Belgium v Senegal.

It is worth noting, however, that the Court indulged Belgium as a complaining state in a situation where the obligations involved were erga omnes partes only. As a result, its position on the broader category of obligations erga omnes in Article 48(1)(b) – owed to the international community as a whole – remains uncertain. It would appear that Article 48(1)(a) might have been similarly applied in the Whaling decision as involving obligations erga omnes partes on the basis of which Australia could defend its standing before the ICJ. Indeed, the Court seems to have subconsciously restricted itself to its position in 2012, determining the whaling dispute entirely on the basis of the Convention and choosing not to address Australia’s claims to Japan’s ‘other obligations’ outside of it.   

The ICJ’s silence on these developments in the law of standing in the Whaling decision is perhaps an unfortunate result of Japan’s failure to challenge to Australia’s locus standi. It might have been worthwhile for Japan to have argued that Australia had no legal interest in its alleged non-compliance with its treaty obligations, refuting Australia and New Zealand’s characterization of the dispute as involving multilateral obligations of the sort contemplated by Article 48(1)(a).

Conversely, Japan could have taken greater advantage than it did of Australia’s characterization of the Convention as a ‘multilateral regime for the collective management of a common resource’ in its jurisdictional challenge, precluding the need for the ICJ’s resolution of the dispute in the first place. Judges Owada and Bennouna hint at this in their dissenting opinions, each arguing that the self-contained institutional framework created by the Convention should be allowed to take effect in the interest of genuine multilateral cooperation, but stopping short of challenging Australia’s right of standing before the Court.

Is it possible to conclude that the ICJ is inclined towards expanding the content of obligations erga omnes to include efforts towards conservation of common resources? While the peremptory norm against torture might have been persuasive in recognizing Belgium’s claim to locus standi in Obligation to Prosecute or Extradite, strictly speaking, the peremptory status of the norm in question is irrelevant to the determination of whether the obligation to adhere to it is erga omnes. Consequently, it would be inaccurate to suggest that the Court in the Whaling decision has recognized the existence of an international norm against whaling. (more…)

Emerging Voices: Freedom or Restraint? On the Comparison Between the European and Inter-American Human Rights Courts

by Lucas Barreiros

[Lucas E. Barreiros is a Professor of Public International Law and Coordinator of International Human Rights Law Masters Program at the University of Buenos Aires.]

While much attention has been paid to the differences and similarities between the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR) as well as to the dialogue between them [see here, here, here and here for examples], none of that attention has been devoted to comparing the one aspect of their work that best and most synthetically captures all that sets them apart – that is, the doctrines of “margin of appreciation” and “control of conventionality”. It is proposed here that more attention should be paid to the explanatory power of these two doctrines in understanding the different identities and diverging trajectories of the ECHR and the IACHR.

As known, the “margin of appreciation” doctrine was developed by the ECHR starting in its Handyside v. United Kingdom judgment. It has been understood to refer, as pointed out by Steven Greer, to “the room for manoeuvre that the Strasbourg institutions are prepared to accord to national authorities in fulfilling their obligations under the European Convention on Human Rights”. The rationale for allowing this margin of appreciation, as pointed out by the ECHR in Handyside when referring to the conditions set out in the Convention to lawfully restrict the freedom of expression, is that national authorities, “by reason of their direct and continuous contact with the vital forces of their countries (…) are in a better position than the international judge to give an opinion on the exact content of these requirements”.

For its part, the “control of conventionality” was first mentioned by the IACHR in its judgment in the Case of Almonacid Arellano et al v. Chile.The IACHR held that:

“(…) domestic judges and courts are bound to respect the rule of law, and therefore, they are bound to apply the provisions in force within the legal system. But when a State has ratified an international treaty such as the American Convention, its judges, as part of the State, are also bound by such Convention. This forces them to see that all the effects of the provisions embodied in the Convention are not adversely affected by the enforcement of laws which are contrary to its purpose and that have not had any legal effects since their inception. In other words, the Judiciary must exercise a sort of “conventionality control” between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of the American Convention.” (emphasis added).

It should be noted that there are two components to the doctrine – one deals with the responsibility of national authorities to ensure that the application of national legislation does not adversely affect the rights under the American Convention of Human Rights; the other, however, is the direct opposite of the “margin of appreciation” as it leaves no room for national authorities to conduct their own assessment and requires them to apply the interpretation of the IACHR.

(more…)

MH17 Should Be Framed as Murder, Not as a War Crime

by Kevin Jon Heller

It has become quite common to describe the downing of MH17 as a war crime. In late July, for example, Navi Pillay, the UN High Commissioner for Human Rights, said that “[t]his violation of international law, given the prevailing circumstances, may amount to a war crime,” More recently, William Burke-White has said that, for framing purposes, “[t]he time has come for governments and international organizations to call the attack on MH17 a probable war crime.” 

[I]f whoever launched the missile did so with the intent of killing the civilian passengers aboard MH17, the act was unmistakably a war crime.

Even if the objective was to strike a Ukrainian transport aircraft, the act likely constitutes a war crime. Fundamental to the law of war, including the law applicable in non-international armed conflicts, is the principle of distinction – the requirement that fighting parties distinguish between civilian and military targets. In the words of the International Committee of the Red Cross, that duty of care includes doing “everything feasible to verify that targets are military objectives.”

In this case, many steps could easily have been taken to differentiate MH17 from a military-transport plane, including visual identification (perhaps with binoculars), radar-signature analysis, and a check of the civilian aircraft transponder-code broadcast. If, as seems likely, these basic steps were not taken, even an accidental strike on MH17 would constitute a war crime.

If the Ukrainian separatists did indeed intend to kill civilians, Bill and Navi Pillay are absolutely right to describe the attack as a war crime — in this case, murder and/or intentionally directing attacks at civilians or civilian objects (to use the Rome Statute’s terminology). But everything we know to date about the attack indicates that the separatists honestly believed MH17 was a Ukrainian military transport, not a civilian airplane. If so, that changes the legal assessment of the attack considerably. The attack would still qualify as murder under domestic law — but it would not qualify as a war crime, under either the Rome Statute or the jurisprudence of the ICTY. (The latter likely representing the customary definition of the war crimes of murder and attacking civilians or civilian objects, which most states would apply in a prosecution based on universal jurisdiction.)

Let’s go in order. The problem with describing the attack on MH17 as a war crime under the Rome Statute is Article 32(1), which provides that “[a] mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.” The actus rei of the war crime of murder and the war crime of intentionally directing attacks at civilians or civilian objects each include a circumstance element: the individuals attacked must qualify as civilians (or as otherwise protected persons). The relevant mens rea for circumstance elements is knowledge, pursuant to Art. 30(3) of the Rome Statute: “For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists.” Black-letter criminal law provides that an honest mistake of fact negatives any mens rea that requires subjective awareness. So if the separatists honestly believed they were attacking a Ukrainian military transport, they were not aware that they were attacking civilians. In which case they could not be convicted of either the war crime of murder or the war crime of intentionally directing attacks at civilians or civilian objects.

The result is no different under the ICTY’s jurisprudence, even though the ICTY applies a lower mens rea to the war crimes of murder and attacking civilians. A complete discussion of the issue is beyond the scope of this post; suffice it to say here that an accused will be responsible for either war crime only if he was reckless toward the possibility that the objects of his attack qualified as civilian. (Dolus eventualis in civil-law terminology.) Recklessness is a subjective mental state in the ICTY’s jurisprudence; as the Trial Chamber noted in Brdjanin, specifically in the context of murder, “the threshold of dolus eventualis entails the concept of recklessness, but not that of negligence or gross negligence.”” Like the ICC, the ICTY recognizes mistakes of fact. As a result, the separatists could not be convicted of either the war crime or murder or the war crime of attacking civilians under ICTY jurisprudence if they honestly believed they were attacking a Ukrainian military transport: although that belief might have been negligent, even grossly negligent, its honesty meant that they were not subjectively aware they were attacking civilians.

The bottom line is that the accidental downing of civilian airplane based on an honest belief that the airplane was a military objective is not a war crime. Failing to take adequate precautions may violate IHL, but it is not criminal. The downing of MH17, therefore, should be framed not as a war crime but as murder.

Final Thoughts on the Bar Human Rights Committee’s Letter

by Kevin Jon Heller

Kirsty Brimelow QC, the chair of the Bar Human Rights Committee (BHRC) — and a colleague of mine at Doughty Street Chambers — has responded to my position on the 2009 Declaration, as recounted by Joshua Rozenberg in this Guardian article. Here is the relevant paragraph:

Neither Rozenberg’s opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support of their positions. This is hardly surprising given that the decision does not in fact “formally reject” the 2009 declaration.

Although I stand behind my claim that the OTP “formally rejected” the 2009 Declaration in its 2012 decision, Kirsty correctly points out that I did not cite the text of the decision. So I think it’s useful to summarise the text and quote it where appropriate:

[1] The 2009 Declaration purported to accept the Court’s jurisdiction over the situation in Palestine on an ad hoc basis, retroactive to 1 July 2002 (para. 1).

[2] Per Art. 15 of the Rome Statute, the OTP initiated a preliminary examination “in order to determine whether there was a reasonable basis to proceed with an investigation” (para. 2).

[3] The OTP stated that the first step in that inquiry was to determine whether it had jurisdiction over the events in Palestine. In that regard, it noted that “only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction” (para. 3)

[4] The OTP pointed out that only a “State” can accept the Court’s jurisdiction on an ad hoc basis under Art. 12(1) of the Rome Statute (para. 4), which meant that the key issue with regard to the Declaration was whether Palestine qualified as a State (para. 5).

[5] The OTP concluded that it did not have the authority to decide whether, as a matter of law, Palestine was a State; that responsibility was “for the relevant bodies at the United Nations or the Assembly of States Parties” (para. 6).

[6] The OTP acknowledged that numerous states had acknowledged Palestine’s statehood and that Palestine had applied for membership as a State in the UN, but insisted that although the UN application was relevant, “this process has no direct link with the declaration lodged by Palestine” (para. 7).

[7] The OTP said it “could in the future consider allegations of crimes committed in Palestine” if the statehood issue was “eventually” resolved by the UN or ASP (para. 8).

Although the decision is not the picture of clarity, I still think it qualifies as a “formal rejection” of the 2009 Declaration. The Declaration formally requested the OTP accept jurisdiction and investigate the situation in Palestine. The OTP opened a preliminary examination, as required by the Rome Statute, but then ended that examination at the first step, concluding that it did not have jurisdiction over the events in question because Palestine could not establish that it was a State. That’s a rejection, even if the OTP — to use a common-law phrase — dismissed the Declaration without prejudice.

My guess is that paragraph 8 is the crux of the disagreement between the BHRC experts and me. They are reading it as a statement that the OTP would essentially hold onto the Declaration until the UN or ASP clarified Palestine’s status as a state, at which point it could then advance the preliminary examination. It’s possible — but I think the OTP would have said as much if that’s what paragraph 8 meant. I read the paragraph as making clear the OTP was rejecting the Declaration without prejudice to a later ad hoc declaration — a reading, not incidentally, that seems to square with Fatou Bensouda’s recent statement that the OTP won’t act without a new Declaration or Palestine’s ratification of the Rome Statute.

I also want to make clear that I disagree with Rozenberg’s statement that the BHRC “is at best naive, and at worst misleading, for suggesting [the] legal situation is beyond doubt.” I don’t think there is anything naive or misleading about the letter, even though I disagree with it. These are very difficult issues, over which reasonable people can disagree. And there is, of course, nothing wrong with advocates advocating.

Finally, I want to sincerely apologise to the BHRC for revealing that I had been asked to sign the letter. Although I waited for the letter to appear publicly before commenting on it, I should not have mentioned that I had been approached.