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NYU JILP Symposium: Lopez’ Responses to Comments

by Rachel Lopez

[Rachel Lopez is an Assistant Professor of Law and the Director of the Community Lawyering Clinic at Drexel University’s Thomas R. Kline School of Law.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

First, I would like to thank Professors Drumbl, Roht-Arriaza, Teitel, and van der Vyver, who so generously offered their time and expertise to comment on my article. I have really enjoyed the opportunity to have these conversations with scholars whose writing has greatly influenced my own in near real time.

Response to Mark Drumbl

In a compelling and exquisitely written commentary, Professor Drumbl illustrates how collective memory (and storytelling more broadly) is evoked by survivors and perpetrators alike and reminds us of how thin the line between the two can be. He also highlights the contested nature of memory, resulting from a power struggle between those seeking to remember and those hoping to forget.

Professor Drumbl and I share much common ground in our assessment of the importance of remembrance after mass atrocity and how judicial proceedings can diminish its significance, which in turn frustrates and disenfranchises victims. We also agree about the notable concerns with permitting collective memory to be a source of evidence in the guilt phase of the criminal prosecutions.

Where Professor Drumbl and I part ways is when he suggests that the penal processes is so ill suited to accommodate collective memory that we should abandon that effort entirely. He astutely notes that the memories of survivors may splinter and diverge in ways that make its inclusion in judicial proceedings unworkable. I contend, however, that it is precisely for this reason that trials are such critical sites for the interjection of collective memory. On this point, I concur with legal scholar Mark Oseil when he argues that because trials are adversarial in nature, they are designed to accommodate dissensus and facilitate public discourse in ways that other institutions cannot. For instance, whereas truth commissions typically collect and catalog victims’ experiences into one official report that presents a single narrative, trials present multiple opportunities for the memories of different groups to emerge depending on who brings the claim and the scope of the conduct and events covered by it.

Professor Drumbl also cautions us that “[p]ushing one correct remembrance, and collectivizing it, risks memorializing the experiences of the strongest among the survivors while neglecting the recollections of the weakest.” I share this concern, but come to a different resolution about how to mitigate it. When lawyers are not permitted to admit collective memory and must rely on individual testimony alone, they are compelled to pick the strongest representative from their client base. That representative may engage in his or her own form of censorship, consciously or unconsciously, thereby excluding the voices of the broader affected community. On the other hand, permitting lawyers to submit victim impact statements in which a community collectively describes the harm from an alleged violation would broaden the number of voices who enter the process.

I also maintain that the lawyers are uniquely suited to act as preservers and promoters of collective memory, because of the trusting relationships they cultivate with their clients over time. In contrast, as Professor Roht-Arriaza and Laura Arriaza warn in Social Reconstruction as a Local Process, “a short-term truth seeking endeavor cannot hope to garner widespread trust among people of a deeply traumatized society, and thus the testimonies taken may be from those less affected, or more articulate…”

Furthermore, because lawyers owe fiduciary duties to their clients, they are better positioned to present their collective narrative. I fear that the external institutions that Professor Drumbl proposes as alternative sites for collective memory are more likely than lawyers to have divided loyalties. Since these institutions would obtain their mandates and likely their funding from external sources, they may be captured by outside interests that deviate from those of the victim group. In the interest of sounding neutral, they might also water down or incompletely portray victims’ stories. The problem of selectively authenticating one memory over another would be compounded.

If we aim to tether collective memory to remedies that more systematically address harms, I also believe that lawyers can play an important role in generating consensus among their clients about what relief is appropriate.

Response to Naomi Roht-Arriaza

Professor Roht-Arriaza offers a carefully considered and thoughtfully crafted commentary that furthers the conversation on the complementarity of collective memory and judicial proceedings.

First, she reminds us that not all post-conflict settings are the same and in some localities, communities may be so disrupted that collective memories are not formed. That observation aligns with my own experience working with societies in transition after mass atrocity and I would like to underscore my agreement with Jaya Ramji-Nogales that transitional justice must be bespoke. Put another way, both the form and objectives of transitional justice must be tailored to the local context and driven by homegrown demands. There is no one size fits all option in transitional justice.

For that reason, in some respects, what I suggest is quite narrow. As I explain in my article, “[w]hen I advocate for the admission of collective memory into judicial proceedings in this article, I am referring to the collective memory of groups of victims who were present or directly affected by the same event or experience.” Two preconditions are necessary: 1) there must be a group of survivors of the same event or alternatively groups of survivors who share a common experience and 2) they have must engaged in memory work and arrived at a common understanding of events.

As Professor Roht-Arriaza points out in her commentary, and I explain in my article, some of the rules of international and domestic courts may already lend themselves to the admission of collective memory. At the same time, other rules discourage attorneys from pluralizing the attorney-client relationship. For instance, pursuant to the International Criminal Court’s rules of evidence, attorney-client privilege is waived if the client discloses information to a third party, including fellow survivors. In addition, human rights lawyers, who were educated in countries with western legal traditions that propagate an individual-centered understanding of the law, may feel intrinsically wary of collective representation.

Professor Roht-Arriaza invites further discussion about how we might incorporate the on-ground experience of communities into the design and implementation of measures of non-repetition. It is my view that one critical step to accomplish that goal is to be more intentional about creating space for collective voices in judicial proceedings.

Response to Ruti Teitel


NYU JILP Symposium: Collective Knowledge and Mythology

by Johan Van der Vyver

[Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law, and Extraordinary Professor in the Department of Private Law, University of Pretoria.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

Knowing the truth and holding persons accountable for wrongdoing are important preconditions for reconciliation of communities in transition. There is a certain discrepancy between these two components of transitional justice. Truth commissions as an expedient mechanism for the cultivation of an impartial historical record through collective memories of past atrocities of perpetrators and victims alike seem dependent on amnesties for serious wrongdoing during the preceding age of repression. As evidenced by the South African Truth and Reconciliation Commission, which was instrumental in transforming the Republic of South Africa from a racist oligarchy into “an open and democracy society based on human dignity, equality and freedom,” amnesties for serious wrongdoing was an essential precondition for revealing the truth, the whole truth, and nothing but the truth.

Creation of the International Criminal Court (ICC) in 1998 has clearly implicated this tension between retributive and restorative justice. There are clear indications that establishment of the ICC ruled out amnesties for any of the core crimes of customary international law, and truth commissions without amnesties seems to be a contradiction in terms. At the Rome Conference, the United States noted in a non-paper that conflicts might arise between international prosecutions and truth commissions but did not take the matter further, and the issue was therefore not further pursued in Rome. At a final social event in Rome, Philippe Kirsch, chairman of the Committee of the Whole who was to become the first President of the ICC, was asked by one of the delegates about the future of truth commissions, and he responded that this was “a creative ambiguity” to be resolved if the matter should come before the ICC.

Collective knowledge is not necessarily accurate knowledge of historic events. Nor should it be.

Many years ago, a visiting professor from the Netherlands delivered a public address at my alma mater in South Africa on “History and Mythology.” He noted that the stories recorded in Greek mythology were not really based on empirical facts and events but were fabricated by their authors to instill in the minds of the readers a certain moral consciousness―a perception of right and wrong. History as recorded in textbooks also does not reflect the truth. Abraham Lincoln was not really, really the person as recorded in history books. Historians reflect an idealized image of this great man; and in doing so they instill in the public mind a certain moral perception of good governance. By contrast, history records in exaggerated form the bad characteristics and wrongdoing of the deplorable characters of the past in order to creating a perception in the minds of the people of what ought not to be. History as reflected in history books serves the same purpose as Greek mythology. History, in a word, is mythology.

If I were to translate this into the current recording of South Africa in transition, I can already see the emphasis on the wonderful contributions of Nelson Mandela toward political change and reconciliation, and perhaps an exaggerated portrayal of the lust for power, for wealth and for sex of President Jacob Zuma as the icon of impropriety. South African governments of the past have had their ups and downs. Prior to political change in the country in 1994, successive governments applied a policy that has now come to be condemned by the international community of states as a crime against humanity. But as far as defiance of the rule of law and disrespect for judgments of courts of law are concerned, no government in the entire history of South Africa has stooped so low as the one currently in command!

And there is one more matter relating to collective memory as a component of transitional justice I wish to emphasize.

In 2008, Karl Doehring (1919-2011), internationally famous professor of General Political Science and of International Law at the University of Heidelberg in Germany, published a book entitled Von der Weimarer Republic zur Europӓischen Union (From the Weimar Republic to the European Union), which is in essence an autobiography. In the opening introduction he proclaimed that current generations looking back at past historical events can describe what happened, evaluate and criticize those events, and seek guidance for future conduct, but―proclaimed Prof. Doehring―if you haven’t been there at the time and personally experienced what happened, you will never understand it.

Collective memory of past events in the minds of peoples in transition is not merely designed to record and to understand history; it is destined to secure a better future. We may not accurately record or truly understand the policies and practices of the past, but must apply our collective, and perhaps mythological, knowledge to secure a better future.

NYU JILP Symposium: Globalizing Transitional Justice

by Ruti Teitel

[Ruti Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School and the author of Globalizing Transitional Justice (2015).]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

I am pleased to join this symposium about Rachel Lopez’ provocative article, The (Re)collection of Memory after Mass Atrocity. The article makes a contribution to contemporary transitional justice scholarship that challenges the normative relationship of transitional justice and human rights.

Professor Lopez, argues for “collective memory” over individual justice, characterizing the the two aims as divergent. She writes, “the preservation of collective memory is in tension with another impulse that follows mass atrocity: the desire for justice.” Here one might say she is leveling a critique at the “human rights-ization” of transitional justice—a critique which I share, as is evident in a recent essay where I argue against an absolutist view of accountability.

Nevertheless, to my mind the dichotomy drawn here between the demands of memory and justice seems too sharp. To some extent, the article hearkens back to an earlier period of transitional justice; the post-Cold War 1990’s when states seemed to be in control of their transitional justice processes and could elevate the needs of the people over abstract universal demands of justice.

But is this view relevant given contemporary developments; such as the globalization of transitional justice. Given the many other actors and institutions which are now involved in these processes I wonder about notion of a goal of arriving at a unified or unifying collective memory of an atrocity or conflict?

Indeed, one can see the emergence of a globalized transitional justice—and this means more actors beyond the state with varying demands, practices and values. Who then owns the process of arriving at “collective memory?” Collective memory raises issues of the politics of transitional justice   can see national agreements regarding transition and reconciliation but also the role of courts and diasporic populations. Consider what collective memory may mean to a state undergoing transition, and what to diaspora communities, such as Armenia today or Cuba? Who or what counts for collective memory? For example, one can see national agreements regarding transition and reconciliation but also what the role of courts and diasporic populations has been to challenge these national determinations. Consider Chile’s extradition of Augusto Pinochet: while on the one hand Chile had convened a truth and reconciliation commission, nevertheless these issues were reopened by members of the diaspora who are surely also part of some collective memory?

Moreover on this view, not only is justice not in tension with collective memory but often memory processes are often overseen or even instigated by international institutions such as courts. All of which raises the inevitable question of what is collective memory—whether there is a prefiguring of this or whether there is not an inevitable social political and yes even legal construction? And, if so, then one might raise normative question of to what extent is the cultivation of such memory necessarily a good thing? That is, in a truly liberal society what is the contribution of protecting an official story? Consider that in Argentina as in Germany today there continues to be a socially accepted militancy regarding memorialization, for example, militant democracy approach to protection of the official story.

One can even say this is true throughout the Americas where the Inter-American Court of Human Rights has aimed at a harmonized rights approach to these issues. Not only is justice not in tension with collective memory, but todays collective memory processes are often supervised and even inspired or instigated by international institutions here, including courts. One can see this in the Inter-American setting where the regional human rights court has taken an aggressive view of memory as a right of victims in a fully developed jurisprudence. For example, in Goiburú v. Paraguay, a case involving torture and disappearances, the court ordered collective memory via the convening of a monument and public acts of acknowledgment of past repression and the victimization. But what is the social significance of a coerced collective memory ordered by a regional rights actor? While the pursuit of the official story may well be seen as acceptable in Latin America given continent-wide disappearance policies, to what extent is this collective memory being guarded by the regional court?

Another example is Germany, whose collective memorialization process began in earnest through the nationwide portrayal of the Auschwitz trials. To this day, there is a view that lawyers and legislation, such as hate-speech-denial laws (even criminal), ought to be deployed to protect the country’s official account via Nuremberg and other trails on the collective memory of the Holocaust from which there can be no divergence.

Hence we can see that the relationship of justice and collective memory is complex. In a truly liberal society, militant-democracy approach to memorialization would ultimately give way as the society matures and democracy becomes consolidated. Indeed, with the passage of time, that there will be multiple paths of access to memory, a process of social and political construction.

NYU JILP Symposium: Collective Memory Focus on the Local, and on Reform

by Naomi Roht-Arriaza

[Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

Rachel Lopez’ article breaks new ground in a few ways. We’ve known of the importance and process of formation of collective memory for nearly a century, as she points out. There’s a whole literature on the reasons for prosecutions in the wake of mass atrocities, and the reasons why those reasons don’t apply. Given that, I appreciated her novel insight that when there’s a long temporal lag between the end of the violations/atrocities/crimes and the ability to bring the perpetrators to justice, that disrupts existing collective memories and opposes them to an individual-centered judicial process.

Of course, an easy answer to the problem would be to hold trials closer to the time of the alleged crimes, while collective memory is still in the process of formation and consolidation. It may be that the erosion through external and civil society pressures of a still widespread preference for impunity, and earlier attention to (re)building a justice infrastructure in the wake of armed conflict or dictatorship, will eventually make that possible. But I’m a bit pessimistic. Judicial processes always take a long time, except if they ride roughshod over due process; judicial processes involving previously, and perhaps still, powerful people who will fight like hell to avoid them, take longer. So the temporal lag is likely to persist.

I’m not sure, though, that the result is necessarily a confrontation between the fruits of collective memory and the individual testimony of witnesses. International courts, and domestic courts applying civil law, do not have strict hearsay rules that preclude witnesses testifying about events involving others in the community. In many local communities that have retained some degree of cohesion in a post-war era, an informal process of discussion, recall and vetting precedes any discussion of sensitive memories with outsiders, whether these are truth commissions, prosecutors or courts. For example, our work in Guatemala found a number of examples of community-level constructions of collective memory through mapping exercises, community museums or rituals around inhumation and reburial of the dead, which later fed into judicial processes in various places.

Collective memory is reproduced and perhaps expanded, but not necessarily challenged, in individual testimony.

However, this is not true everywhere, as war and repression inevitably disperse, degrade and destroy community. This presents a problem for collective memory, both because it’s no longer clear who is included in the collective, and because the internal processes of reconstruction, retelling and comparison of memories that creates collective memory are disrupted. Under these circumstances, trials can actually both reaffirm and reinvigorate collective memories by broadening the sphere of the “collective” to those listening to trial testimony, who find their individual memories validated. Of course, they can also give rise to counter-narratives, a “dissensus” that can in theory enrich civic discourse but that in practice is often intimidating, silencing, and violent. The Guatemalan Rios Montt genocide trial offers one example.

The other aspect of Rachel Lopez’ article that I found provoking was her recommendation to use the tools of community lawyering to better allow communities more of a collective say in processes of reparations and in the design of guarantees of non-repetition. To some extent, as she recognizes, this is already done, not least by the Inter-American Court of Human Rights, which regularly recognizes injuries to collectivities and orders appropriate redress. A number of national reparations programs have, at least in design, been attentive to the dimension of collective harm and collective redress, for example Peru, Colombia and Cambodia.  No doubt more could be done.

Where the big gap lies, in my view, is in the design and implementation of measures of non-repetition. Intended to respond to the underlying causes and amplifiers of armed conflict and/or repression, these have often been framed with a donor-driven or elite-driven logic that makes no room for the on-the-ground experiences of communities.   So they have focused on a narrow band of civil and political rights violations, ignored or underestimated continuities of violence—around women’s rights, or extraction of natural resources and expropriation of community lands, for example—and been accorded insufficient resources, imagination, or importance. Even where broad-ranging reforms are incorporated into peace agreements or transitional justice plans, as was the case in 1996 in Guatemala, these are not translated into practice. Here is where the overlap and synergies between community lawyering, bottom-up consultation and collective interests, economic development and transitional justice provides fertile ground for further research and discussion.

NYU JILP Symposium: The Memories of Collectives, the Gadgetry of Victimhood

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington & Lee University, and Visiting Scholar, CICJ, VU University Amsterdam.]

This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.

Atrocity begins with story-telling. Elegies lament unrighted wrongs from ancient battles. Fables weave and spin the bravado of national or ethnic superiority. The roll, pitch, and yaw of an entire literature ritualizes dehumanization: stories of vermin, poisonous mushrooms in children’s books, bespectacled intellectuals, enemies of the state. Then come exhortations to cut the tall trees, to take out the garbage, and to make way for Lebensraum. The filth is to be scrubbed, the society purified, the landscape cleansed.

Atrocity metastasizes once these stories become performed. New stories then emerge. These stories narrate pain and suffering. Their tales, however, may redound with redemption; their ballads may record harrowing strategies of survival paired with forensic accounts of death; at times, too, chants of resistance arise.

In the aftermath of atrocity, these stories become memory. The construction of memory, then, becomes an act of the living and a sign of life. For survivors, authorship over memory represents the exercise of agency and autonomy. For perpetrators and their supporters, revising (or denying) memory – also an act of authorship – becomes a tactic to thrive in changing times.

It is no surprise that in the aftermath of mass atrocity the recovery of memory, and its reclamation, matters so much to so many. The hunger for memory, however, intersects with the blandness of law. This encounter frustrates, perhaps most acutely for victims.

It is here that Professor Lopez enters the conversation. She recognizes this frustration. She also gestures towards a path forward. For her, law can respect memory. It can channel stories of survival, subjugation, and suffering. While Professor Lopez is an optimist about law’s potential, she remains more circumspect about how, exactly, we should understand memory. In a particularly thoughtful argument, she contends that conversations ought to move towards “collective memory.” For Professor Lopez, collective memory arises when those most affected by mass atrocity “though discussion and ritual … merge their fragmented recollections into one holistic narrative.” Collective memory is unscripted. It emerges organically through a synthesis of informal conversations, shared glances, tacit rejections, and knowing nods. Drawing from a rich array of sources, Professor Lopez posits that collective memory is more accurate, consistent, and concise than individual memory.

In sum, then, Professor Lopez effectively exposes law’s predilection for individual conduct and illustrates how this penchant inhibits law’s ability to inflect collective action. For her, this is a loss. It is a loss because victims yearn for more. Professor Lopez’s response is reformist. Human rights lawyers should preserve and promote collective memory. Integrating collective memory of victims into legal process, for Professor Lopez, would clarify how atrocity begins and could document the pain it inflicts, while also furthering aspirations of reconciliation, transition, the development of an historical record, nation-building, and legal reform.

How to accommodate collective memory into legal proceedings? Professor Lopez’s recognizes that the criminal law may find such accommodations awkward, if not downright unworkable. The criminal law, after all, is primarily about adjudging the guilt or innocence of the defendant. The need to focus on the defendant requires the foregrounding of all sorts of due process rules. This need stymies the use of collective memory in penal process because collective memory cannot be properly vetted. Professor Lopez therefore directs our gaze elsewhere. She points to tort-based claims, action civile, and the victims’ participation scheme built by the Rome Statute and present at the ECCC.

Professor Lopez’s article makes a tremendously valuable contribution to the literature on transitional justice. Her diagnosis of law’s foibles, and her proclamation of the potential of collective memory, is sterling. She has the courage to offer some remedial responses. Her article is a rich base for a symposium.

For me, her piece opens two shutters. The first is architectural. The second is discursive. (more…)

NYU Journal of International Law and Politics Online Symposium

by NYU Journal of International Law and Politics

[This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.]

We are proud to partner once again with Opinio Juris to present an online symposium discussing a thought-provoking issue of international significance. This year, we highlight Professor Rachel Lopez’s The (Re)collection of Memory after Mass Atrocity and the Dilemma for Transitional Justice, which was recently published in Volume 47, Number 4, of the NYU Journal of International Law and Politics.

Today and tomorrow, we hear comments on Professor Lopez’s article from four distinguished scholars:

  • Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University.
  • Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law.
  • Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School.
  • Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law.

Tomorrow, Professor Lopez will respond to the comments.

Professor Lopez, Assistant Professor of Law and Director of the Community Lawyering Clinic at Drexel University’s Thomas R. Kline School of Law, offers the following words to introduce the discussion:

First, I want to express my sincere appreciation to the editors at NYU JILP for organizing this symposium and Opinio Juris for hosting it. A central goal of this piece is to encourage a conversation about the proper role of collective memory—an enduring and shared memory of events—in transitional justice. This forum provides a great opportunity to spark that conversation with some of the most influential thinkers on transitional justice.

As a preface to the discussion, I thought that it would be helpful to summarize the central questions raised by the article and situate it in the context of my scholarship more broadly.

The impetus for this article arises from the challenges I encountered in representing survivors of mass atrocity. The indivisibility of their memory struck me, as did the healing and bonds it generated. As I began to examine the literature on collective memory, I realized that I was not alone in this observation. Scholars from disciplines ranging from sociology to clinical psychology have written about and documented collective memory and its cathartic effects. Some have noted its potential for healing the wounds of a tattered national conscience and preventing future atrocities.

What my article explores is the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on individual representation by replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients.

In this article, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. Indeed, I believe that inclusion of collective memory would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and possibly advancing reconciliation.

This work draws on and builds from my other scholarship on transitional justice. As a general matter, I posit that transitional justice has distinct objectives that differ from traditional legal justice and that merely importing principles and procedures from other legal systems results in a mismatch between the transitioning society’s needs and the legal mechanisms employed. My research thus seeks to explain, analyze, and theorize about the unique role of justice after mass atrocities and how to better tailor transitional justice mechanisms to the specific needs of recovering societies.

The article also ties into another area of scholarly and professional interest: collective representation. As the director of a community lawyering clinic, I have been exploring innovative ways to engage collectives to guide the substantive focus and strategies of our work. Most recently, I co-authored with Susan Brooks Designing a Clinic Model for a Restorative Community Justice Partnership, which chronicles the development of the my clinic and highlights how the principle of deliberative democracy guides our engagement with the two communities we serve. As a general matter, I believe that our profession has an exaggerated fear of the corrupting influence of the collective, which manifests in a narrow conception of the attorney/client relationship that isolates clients in times of crisis when they most need communal support. In future scholarship, I hope to further examine models of lawyering that effectively balance the need for independent decision making with collective concerns and support.

I look forward to engaging with the participants in this discussion and want to thank them for generously offering their thoughts and critique.

Emerging Voices: Incorporation of Plural Realisations of Justice within the ICC System

by Justin Yang

[Justin S. Yang, PhD Researcher at King’s College London; LL.M at Leiden University.]

The International Criminal Court (ICC) projects a legal framework that is unique from the prior expressions of international criminal justice. In the construction of its Statute, in particular through the system of complementarity, the Court embodies the potential to actualise a horizontal and communitarian system of justice; rather than mandating a singular perspective of law in a vertical hierarchy, the ICC framework is designed to accommodate the inherent plurality of its international membership.

Tracing the development of international criminal justice institutions in the 20th century has illustrated that this project has been in oscillation between peak periods of heightened inter-state cooperation and trough periods of resistance to encroachments on Westphalian sovereignty. The respective institutions that were established following World War I, World War II, and the Cold War have predominantly reflected the interests of only the particularly powerful states, albeit under international communitarian rhetoric.

Prior to the ICC, exercises in international criminal justice were exclusively facilitated first by the key multinational states of the post-war Allies, and later by the P5 of the UN Security Council. Rather than devising a new justice system that could be compatible with sovereign equality and the multiplicity of legitimate legal systems on the international plane, the post-war multinational bloc opted to adopt the vertical trial-based nature of Western domestic criminal systems. In other words, these judicial institutions, acting on behalf of the multinational leadership, presided at the apex of their respective scope of adjudication, in the same way a sovereign reigns supreme in its domestic system. Mirroring the capacities of the sovereign, these international judiciaries were unchallengeable, and arbitrarily made claims to various laws, as understood and accepted by them, onto diverse heterogeneous situations. In this penetrative hierarchy, sovereign boundaries and the indigenous legal systems of the subject state were explicitly disregarded and disapplied by the adjudicators. Therefore, diverse circumstances, local peculiarities, and contextual relevancies, all of which could materially affect the process of adjudication and determination of culpability, failed to be considered. The crimes were analysed solely through the perspectives of the multinational victors.

The ICC marks a departure from this tradition of vertical justice. The democratic legitimacy inherent in its treaty-based creation, and its central tenets of independence and impartiality has, in theory, separated criminal adjudication from overarching political agendas, including that of the UN Security Council. The symbiotic relationship between the Court and its member states, within the complementarity regime, has allowed for a horizontal, stateless, and impartial system of justice to exist over the global community. Being complementary to national systems means that the Court preliminarily defers to a state’s sovereign prerogatives to exercise criminal jurisdiction over international crimes. This prerogative is perceived as a duty of every state (Rome Statute, Preamble). Upon failing this duty at a standard deemed acceptable by the Court, the case may then be admitted into the ICC docket. State proceedings are therefore inherently underpinned by the implicit threat of the Court ‘seizing’ the case, if the framework of preventing impunity (Rome Statute, Article 17) is not satisfactorily upheld. (more…)

Emerging Voices: “Do No Harm” and The Development of General Corporate Human Rights Obligations

by Gabriel Armas-Cardona

[Gabriel Armas-Cardona received his J.D. from New York University and was a legal officer at Lawyers Collective in New Delhi, India where he managed the Global Health and Human Rights Database.]

Human rights activists have long complained of legal lacunae in domestic and international law over the regulation of corporations. This is why last year’s United Nations Human Rights Council resolution to elaborate binding obligations on corporations was cheered by activists (and derided by business). The UN’s previous attempt to develop a general framework of responsibilities in the 2011 Guiding Principles on Business and Human Rights did not impose binding obligations, likely one of the reasons it was generally praised by corporations.

Corporate behavior is primarily regulated through two domestic legal systems: tort and a corporate regulatory regime. The first is the traditional remedy system for individuals while the latter is the State impositions on business to promote a social good. In well-regulated States, these two distinct systems have grown to more effectively protect that society. But many developing countries don’t have legal systems in place that effectively protect their society and almost no State regulates corporate action abroad for the protection of other societies. The value of binding legal obligations is that they can remove the lacunae by having universal and consistent obligations for all corporations within States and in the interstitial space between jurisdictions.

These obligations would be distinct from and would not dilute State human rights obligations. Having multiple dutybearers, even qualitatively different ones, is not problematic. Corporate obligations would positively interplay with States’ duty to protect to further realize human rights. When a violation by a corporation occurs, it would be the State’s duty to provide a remedy system, stemming from a State’s duty to protect, and the corporation’s duty to cooperate with that system, stemming from the secondary duties mentioned in the duty to fulfill, or to directly provide reparations to the victim (in normal parlance: go to court or settle). If the corporation cannot provide reparations (e.g. due to bankruptcy), then the State would have to provide reparations directly. Either way, the victim is made whole.

Underlying the challenge is that there currently is no principled framework for universally applicable corporate obligations. One can’t simply copy State obligations and apply them to corporations; their obligations must reflect that they are private actors. The Guiding Principles state that corporations “should avoid infringing on the human rights of others” (Principle 11), or as the Special Representative of the Secretary-General that wrote the Guiding Principles said, the responsibility of a corporation is “put simply, to do no harm.” The principle of “do no harm” has been used as a touchstone in corporate human rights obligations since at least 2002 and is a surprisingly suitable standard for developing a structure for general obligations.

As dutybearers, the same tripartite typology of human rights can apply to corporations as States; i.e., a human right would impose duties on corporations to respect, protect and fulfill. The Shue/Eide typology recognizes that the realization of rights can require measures of varying degrees of activity by dutybearers. Corporations can violate rights as producers, industry players, or employers; thus, depending on the situation, corporations may be required to stop selling defective goods, protect victims from violations done by the corporation’s supply chain or provide reparations for a prior harm. The majority of obligations falls within the duty to respect, but the duties to protect and fulfill provide new and interesting duties that respond to the concerns of corporate violations.

To understand what substantive obligations arise from “do no harm,” it helps to use the example of a particular right, such as the right to health. As economic entities, corporations are able to directly infringe on the realization of economic, social, and cultural (ESC) rights. The right to health is one of the most developed and broadest ESC rights, making it useful to use here.

The content of corporate obligations vis-à-vis the right to health


Emerging Voices: Is the International Community Ready for a “Duty to End Impunity”?

by Auriane Botte

[Auriane Botte is a Ph.D candidate in International Law at the University of Nottingham (UK).]

One can no longer count the number of times that the objective of ending impunity for core international crimes has been crushed by more pressing political and diplomatic interests. The most recent instance was on the 15th of June when South Africa allowed Omar al Bashir to return to Sudan despite an interim order issued by the High Court in Pretoria to prevent the Sudanese President from leaving South Africa, pending a decision on implementing an arrest warrant issued by the International Criminal Court (ICC) in 2010. This decision to favour impunity over justice is even more disgraceful since South Africa has been a State Party to the Rome Statute since 2000. As a quick reminder, Omar al Bashir is accused of indirectly participating in the commission of crimes against humanity, war crimes and genocide committed in Darfur. What happened in South Africa may, nevertheless, give a ray of hope as there was, for once, an attempt to hold Bashir accountable. Another positive aspect of this non-event is that it demonstrated the increasing power of civil society to put pressure on governments in relation to issues of impunity, with the support of the domestic courts.

The situation in Darfur, Sudan has repeatedly been under the spotlight this year, as it sadly illustrated the weakening of the fight against impunity for core international crimes. Last December, the ICC Prosecutor announced in her report to the Security Council on the situation in Darfur that she decided to “hibernate” the investigation on this situation. This decision was taken following a blatant lack of cooperation from Sudan and a lack of support from the Security Council for the work of the ICC, despite the fact that the situation was initially referred to the Court by the Security Council. The ICC Prosecutor as well as the ICC Pre-Trial Chamber II recently pointed out the lack of willingness from the Security Council to play its part by imposing measures on UN Member States for their failure to comply with Resolution 1593 (2005) requesting cooperation with the ICC. This lack of cooperation with the ICC from UN Member States as well as from the Security Council demonstrates the limits of the commitment of the international community to achieve the objective of ending impunity.

These two serious impediments to the objective of ending impunity in Darfur highlight a major flaw in the response to core international crimes by the international community: the absence of significant consequences for the failure to cooperate with the ICC. In other words, if a State decides not to cooperate with the ICC, it is unlikely that the State will have to face any serious consequences. The scarce provisions of the Rome Statute related to non-cooperation and the soft approach taken by the Security Council or the Assembly of States Parties on instances of non-cooperation illustrate further this flaw. In the specific situation in Sudan, an argument has been put forward, notably by the African Union, that the States Parties may justify their refusal to execute a request from the ICC to surrender Omar al Bashir by their obligation under International Law to respect the diplomatic immunity of the Head of States. This goes back to the ongoing debate of the opposing Articles 27 and 98 of the Rome Statute, raising the question whether the irrelevance of official capacity under the Rome Statute should prevail over obligations to ensure diplomatic immunity under International Law. The main issue here is that the Security Council did not explicitly waive the diplomatic immunity of the alleged perpetrators in Sudan. Nevertheless, the ICC Pre-Trial Chamber II reaffirmed that Resolution 1593 (2005) did de facto waive the immunity of Omar al Bashir.

The problem of the lack of commitment to end impunity for mass crimes goes beyond the issues of non-cooperation with the ICC. It may be timely to rethink the responsibility for core international crimes by looking at the broad picture. A possible way to revive the objective of ending impunity for core international crimes may be to consider it outside the focus of individual criminal responsibility and to integrate it within a larger framework of accountability mechanisms. This may allow for developing a wider approach drawing simultaneously from International Criminal Law and State responsibility norms to cover an extensive range of accountability mechanisms at the international and domestic level. International Criminal Justice may potentially benefit from the conceptualisation of a duty to end impunity lying with the States and associated with appropriate consequences for the failure to fulfil this duty. It is important to note that this obligation may not only fall upon the States. The Security Council may also have an impact on ending impunity through targeted sanctions and other accountability measures. Due to the limited length of this post, this issue will not be discussed further.

A structured framework to strengthen the duty to end impunity may be inspired by (more…)

Emerging Voices: Strength and Legitimacy of Control Mechanisms in International Human Rights Treaties: The Moderation Effect

by Katarína Sipulova, Hubert Smekal and Jozef Janovsky

[Katarína Šipulová is a student in an MSt in Socio-Legal Research, University of Oxford and a PhD candidate at the Faculty of Social Studies, Masaryk University. Hubert Smekal is an Assistant Professor at Faculty of Social Studies, Masaryk University; and Jozef Janovský holds an MSc in Applied Statistics, University of Oxford, having previously studied politics and applied mathematics at Masaryk University. This contribution comes from research under a project entitled “International Human Rights Obligations of the Czech Republic: Trends, Practice, Causes and Consequences,” GA13-27956S, supported by the Czech Science Foundation GAČR.]

The study finds that the strength of a human-rights treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties. Empirical test of the “moderation effect hypothesis” showed that the overall speed of the commitment process of communist Czechoslovakia and newer democratic regimes (CR and SR) was quite similar. However, while communist Czechoslovakia preferred commitments to treaties with weak control mechanisms, the transitioning CSFR and its democratic successors were more prone to ratify treaties with a strong control mechanism.

What motivates states to ratify international human rights treaties remains an unanswered question in political science. Many tentative explanations for the observed commitment patterns have been proposed, relating e.g. to the character of the political regime of the state (Moravcsik 2000, Hafner-Burton – Tsutsui – Meyer 2008), the characteristics of a treaty and how they diverge from a country’s practice (Hathaway 2007; Cole 2005), and foreign policy goals (Goodman 2000, Heyns and Viljoen 2001), especially accession to the EU (Guzman 2008; Landman 2005).

A thorough examination of practices in two post-communist countries, the Czech Republic and Slovakia, contributes to this long-standing debate on different commitments patterns (i.e. signatures and ratifications). Our in-depth comparative study is based on a set of more than 190 human rights treaties; by a “human-rights treaty” we understand any multilateral treaty which includes human-rights provisions (i.e. both predominantly human-rights treaties and treaties dealing with human rights only in parts of their provisions). These are typically treaties which originated in the Council of Europe, the United Nations and the International Labour Organization.

The study covers two countries with similar foreign policy incentives as well as a common historical, political, and legal heritage. Interestingly, the political experience of the both countries has included non-democratic, semi-democratic, democratic and transitional periods. After the fall of a four-decade-long communist regime in 1989, both countries experienced a short intermezzo as a federal democratic republic (“CSFR”), which dissolved on 1 January 1993 following strong calls for national self-determination. Approximately seven decades of common history meant that the two new states shared a common starting point with regards to their international commitments and domestic legal systems. The Czech Republic set off decisively for political and economic liberal reforms in order to quickly integrate into Western international structures and it very soon acquired a reputation of the front-runner among post-communist countries. On the other hand, between 1993 and 1998, Slovakia, under the government of Prime Minister Vladimír Mečiar, slowly moved towards a semi-authoritarian system, characterised by restrictions of political rights, censorship in the media, and economic scandals. At the end of 1998, Mečiar’s government fell due to worsening economic problems and foreign-policy failures (pre-accession talks with the EU and NATO were particularly unsuccessful). After 1998, Slovakia caught up with the other CEE candidate countries and fully reoriented its efforts towards integration into Western structures. In December 2002, both states successfully concluded their pre-accession negotiations with the EU and subsequently acceded on 1 May 2004.

In this study, we do not break out the period of Mečiar’s government for methodological reasons: its character and position on the democratic – non-democratic axis remains disputable (see Janos 2000, Kitschelt 1999, or Linz and Stepan 1996). However, the political developments are taken into account when interpreting the data. Experience with different political regimes adds data variability and enables us to focus on the relationship between the character of the regime and state’s commitment activity wherever possible. Academic literature includes regime type among the most important variables influencing the decision to commit. Several authors have pointed out that non-democratic countries with poor human rights records tend to ratify treaties at a higher rate and speed (Hathaway 2002), in order to demonstrate a low-cost legitimizing symbolic commitment without any actual willingness to comply (Hafner-Burton – Tsutsui – Meyer 2008). Moreover, this commitment might be further distorted either by the use of reservations (Neumayer 2007) or a control mechanism too weak to be seen as a credible threat (Dutton 2013).

Control mechanisms adopted in human-rights treaties (i.e. their strength) differ profoundly: from no control, through an obligation to submit internal reports, to subordination to the jurisdiction of a judicial body. In this short contribution, we focus on the influence of the control mechanism on commitment patterns. Our distinct argument, that the strength of a treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties, is then tested on the Czech and Slovak experience.

Empirical Study

Figure 1 mirrors our expectations regarding the frequency and the speed of human rights commitments of the Czech Republic and Slovakia under different political regimes. Based on the above-mentioned theories, we would expect non-democratic communist Czechoslovakia to commit to few human rights treaties, and primarily to those with a weak control mechanism (i.e. with no actual control or limited to domestic reports). However, the process of these commitments should be rather fast, because of the limited need for deliberation. On the other hand, we expect the post-1989 Federal Republic to be strongly human-rights oriented, committing frequently and fast in order to boost its international credentials and spur the proverbial return to (Western) Europe. After the consolidation of new democracies, we expect the speed of ratifications to slow down.

Figure 1: Theoretical expectations (Source: authors)

  Regime Commitment pattern(expected frequency and speed of commitments)
Communist Czechoslovakia (1948-1989) Non-Dem Low commitment activity; medium-fast processHigher for treaties with a weak control mechanism compared to democracies
 Federal Republic (1990-1992) Dem High + fast for all treaties
Czech Republic (1993 →) Dem Medium + slow for all treaties
Slovak Republic (1993 →) Dem* Medium + slow for all treaties

The overall human rights commitment activity of Czechoslovakia and its successors is presented in Figure 2. The graph shows the cumulative number (more…)

Emerging Voices: Victim Participation in ICC and ECCC’s Proceedings

by Melanie Vianney-Liaud

[Mélanie Vianney-Liaud is a PhD Candidate at the Aix-Marseille University, III, France.]

At the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), victims are granted procedural rights to participate in their personal capacity. However, in both courts, victim participation is challenging since mass crimes make thousands of victims. The crimes perpetrated during the Khmer Rouge regime in Cambodia, for example, caused the death of nearly 1.7 million people. Legally speaking, the victims are those who have suffered harm as a result of a crime, namely the act(s) or omission(s) reproached to the accused in a criminal trial. Consequently, given the widespread scale of atrocities committed by the Khmer Rouge, almost the whole Cambodian population could claim victim status at the ECCC. This raises the question of how to ensure victims effective procedural rights in criminal proceedings whereas they are so many.

Several options have been contemplated. Victim participation status at the ICC and ECCC are different. The purpose of this post is to show that despite such differences, the exercise of victims’ rights is extremely restricted in both courts to the point that, today, there is no effective and useful victim participation in international criminal proceedings.

At the ICC

At the ICC, victims’ participation stems from the will of the States which negotiated the Rome Statute. Article 68.3 provides that :

Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered (…). Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate (…).

However, neither the Rome Statute nor the ICC Rules of procedure and Evidence determine the modalities of victim participation. It is left to the judges to set such rules (ICC Rules of Procedure and Evidence, Rule 89.1). Thus, at the ICC, victim participation depends on each Chamber and varies in each case. For example, in the Katanga and Ngudjolo Chui case, the Trial Chamber II decided that the victims’ legal representatives « must be able to consult all of the public and confidential decisions and documents in the record of the case » (Decision on the Modalities of Victim Participation at Trial, § 121) whereas in the Bemba Gombo case, the Trial Chamber III limited legal representatives’ access to confidential material « relevant to their views and concerns » (Decision on the Participation of Victims in Trial, § 47).

With the exception of the Pre-Trial Chamber I in the Katanga and Ngudjolo Chui case, all ICC Chambers adopted a casuistic approach. Thus, for example, in the Lubanga case, the Trial Chamber I held that « in order to participate at a specific stage in the proceedings, e.g. during the examination of a particular witness or the discussion of a particular legal issue or type of evidence, a victim is required to show, in a discrete written application, the reasons why her interests are affected by the evidence or issue then arising in the case » (Decision on Victims’ Participation, § 96). Consequently, in the trial of Bemba Gombo, to have access to confidential documents, the legal representatives need file a request in which they shall show how the interests of their clients are affected by such documents without knowing their content. This puts the legal representatives in a tricky situation since they have to speculate on how that content might concern their clients in order to motive their participation.

The Pre-Trial Chamber I in Katanga and Ngudjolo Chui considered that the casuistic approach – where « victims are required to ask for the leave of the competent Chamber to perform the most simple procedural activity » – makes the rights attributed to those granted the status of victim « purely symbolic » (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, § 51).

At the ECCC

At the ECCC, victim participation was not provided by the Chambers’ creators (i.e. the United Nations and the Cambodian Governement). It stems from the judges who set the modalities of victim participation, as at the ICC. However, contrary to the ICC, such rules are not determined in a decision of the competent Chamber in each case. They were established in the ECCC Internal Rules. The judges based on the victim status in Cambodian law. Thus, according to Rule 23.1, victims participate as « civil parties » in the ECCC proceedings. They enjoy important procedural rights that they exercise throughout the whole criminal proceedings, either directly or through their lawyers, without having to ask the Chamber for permission. For instance, at the investigation stage, civil parties may request investigation action (Rule 55.10). At trial, they may question witnesses (Rule 91.2), and even the accused (Rule 90.2). Civil parties may also appeal the verdict of the Trial Chamber, when Prosecutors have appealed (Rule 105.1). In order to effectively exercise such rights, civil parties and their lawyers have access to the whole case file (i.e. the record of the case) at each stage of the proceedings (see Rules 55.11 and 86).

The fact that victims’ rights are included in the Internal Rules may imply that ECCC victims enjoy a higher legal security than at the ICC, since their legal status should less depend on judges’ discretion in each case. However, ECCC Internal Rules were amended several times, and the modalities of civil party participation have not been spared by such revisions. Particularly, during the sixth Internal Rules’ revision session in 2010, the relevant provisions were modified for ensuring effective proceedings in Case 002, ECCC’s most important case in which the last surviving Khmer Rouge leaders are indicted. The new provisions introduced two original creations. Firstly, according to new Rule 23.3, the whole civil parties of Case 002 (about 4,000 victims) have been gathered in a single, consolidated group at trial who, secondly, is represented by two lead co-lawyers designated by the Court.

In 2011, the Trial Chamber separated Case 002 trial proceedings in relation to the charges of the indictment in order to conduct several manageable « mini-trials ». Thus, the scope of Case 002/01, the first small trial, included only crimes against humanity committed during the course of two phases of movement of population, and executions of Khmer Republic officials at the execution site of Tuol Po Chrey. According to Case 002 Indictment, 1018 civil parties were declared admissible in the context of the movements of population (§§ 261, 354) and 20 with regards to Tuol Po Chrey (§ 714). However, in the 2011 decision, the Trial Chamber determined that because civil parties « no longer participate individually …, but instead as a consolidated group [with] collective interests …, limiting the scope of the facts to be tried during the first trial … has no impact on the nature of civil party participation at trial » (Severance Order Pursuant to Internal Rule 89ter, § 8). Consequently, the Trial Chamber did not sever the consolidated group of civil parties in order to keep only the victims concerned by the crimes tried in Case 002/01. Therefore, a litte less than 3,000 civil parties participated in Case 002/01 whereas their prejudice had no causal link with the crimes reproached to the accused within that trial. Such a participation means that victims at the ECCC are not considered as real legal actors but rather as mere ornaments.


Despite promising starts, in both ICC and ECCC, victim participation has rapidly been restricted to move towards a symbolic involvment. Such a practice calls into question the pertinence and interest of victim participation in international criminal proceedings.

Admittedly, granting hundreds or even thousands victims the opportunity to participate in person is clearly materially impossible. From a legal point of view, the balancing of the accused’s rights with victims’ rights raises considerable conceptual difficulties. The fears and suspicion caused by victim participation are, therefore, understandable.

However, victims, even if they are many, are not symbols. They deserve the opportunity to really participate in the criminal proceedings which affect them, as soon as this right is granted to them. Some ICC and ECCC’s judges have recognised the various interests of victims participating in the proceedings of both courts (see e.g., ICC, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, §§ 31-43 and ECCC, Decision on Civil Party Participation in Provisional Detention Appeals, § 40). However, it shall also be recognized that international criminal proceedings take advantage of victim participation.

Emerging Voices: The Weakness of the “Super-Constitutional” Euro

by Francesco Montanaro

[Francesco Montanaro is a dual PhD candidate at Bocconi University (Milan) and Pantéon-Assas University (Paris).]

Saving the Euro at any cost. This imperative drove the EU and EU Member States’ response to the sovereign debt crisis. Following an incremental pattern, they adopted a number of measures that culminated in the conclusion of the European Stability Mechanism (ESM) Treaty and in the adoption of the Outright Monetary Transactions (OMT) program. The ESM Treaty established a permanent crisis resolution mechanism – endowed with full legal personality – that provides financial assistance to Euro area Member States with particularly troubled public finances. However, Eurozone Member States that benefit from this financial assistance are subject to strict conditionality. The OMT program is a measure enacted by the European Central Bank (ECB) to restore an appropriate monetary transmission system. The program consists in the purchase of Eurozone Member State government bonds on the secondary market. Again, the implementation of such a program is conditional upon the fulfilment of the ESM adjustment plans.

These measures were challenged before the Court of Justice of the European Union (CJEU). In both cases, the Court assessed, among other issues, whether these measures violated the division of competences between the Union and the Member States set out in the EU Treaties. In this respect, it is worth remembering that Article 3 of the Treaty on the Functioning of the European Union (TFEU) stipulates that the Union has exclusive competence over monetary policy, while Member States retain the power – which is nonetheless subject to the duty of coordination under Article 121 of the TFEU – to design their economic policies. According to Article 127 of the TFEU, the European System of Central Banks –i.e. the European Central Bank and the national central banks- conducts the monetary policy of the Union with the aim of maintaining price stability. This assessment, however, is everything but straightforward, as both measures have a “hybrid” nature. On the one hand, although the ESM officially aims to provide financial assistance to Eurozone Member States, it also produces effects similar to a monetary policy measure by affecting the amount of Euros in circulation. On the other hand, the OMT program, while ensuring the correct functioning of the monetary policy transmission system, it also impacts on Member States economic policies through the imposition of macroeconomic conditionality. Faced with these issues, the Court scrutinised such measures by looking at their “declared” objectives. In Thomas Pringle v. Government of Ireland, it observed that, although the ESM may produce some indirect effect on price stability, its main purpose remains the stability of the Eurozone. Consequently, it should be considered as an economic policy measure falling within the sphere of competence of EU Member States (para 56). By the same token, in Peter Gauweiler and Others v Deutscher Bundestag, the Court found that the OMT program primarily aims at ensuring the stability of prices by pursuing the ‘singleness’ of the monetary policy and safeguarding an appropriate transmission system (paras 50-51). Therefore, this measure does not exceed ECB’s competence, even though it also foists austerity measures on Eurozone members and seeks to ensure Eurozone stability.

That being said, the Court’s formalistic approach ultimately allowed the Court to circumvent the somewhat artificial division of competences laid down in the EU Treaties. Given the “hybrid” nature of the measures at issue, spillovers are inevitable: the ESM and the OMT program ultimately pursue monetary policy as well as economic policy objectives. However necessary and unavoidable this approach may seem, it leads to a de facto modification of the EU economic and monetary governance. Notably, it might be argued that the Court conferred a sort of “super-constitutional” ranking on the Euro that in effect override division of competences set out in the Treaties.

However, contrary to what one might expect, such a de facto “super-constitutional” ranking could in the long run undermine the Euro and the EU. As noted above, these emergency measures are combined with adjustment plans that may remove important economic policy choices from Member States’ competence. Although officially involved in their negotiation, Member States to which these plans will apply generally have a weak bargaining position. Thus, they are likely to accept the requests of their counterparties, namely the ECB, the Commission, and the International Monetary Fund. Yet, this might elicit their resistance in the long run. For one thing, Member States’ governments might decide to delay or even discontinue the implementation of the tough adjustment plans attached to the ESM and the OMT program thereby putting at risk their Eurozone and EU membership. The recent Greek referendum on the “bail-out agreement” with creditors represented an unprecedented “act of resistance”, even though Greek government accepted very tough bailout conditions somehow betraying polls verdict a week after the referendum. This referendum constitutes nonetheless an important precedent that might lead other EU Member States to resort to popular vote when facing hard loan conditions. And it cannot be excluded that more powerful and sizeable Member States would manage to withstand EU institutions and creditors’ pressure.

Furthermore, this rather extensive interpretation of the EU Treaties might give rise to the opposition of national judges. In this regard, it is worth mentioning that, in Gauweiler and Others v Deutscher Bundestag, the German federal constitutional in its request for a preliminary ruling made clear that it would have applied the CJEU’s decision only if the latter had met a number of conditions. As is evident, this approach might result in the refusal to apply the preliminary ruling of the Luxemburg Court.

Altogether, these forms of Member States’ resistance not only could bring about a conflict between the EU legal system and the national ones, but also jeopardise the existence of the single currency and, ultimately, that of the European construction. In other words, the de facto “super-constitutional” ranking of the Euro may turn to be its main weakness. Consequently, far from representing a long-term solution, it should prompt Member States to amend the EU Treaties.

Two equally difficult options lie ahead: either a deep overhaul of the EU economic and monetary governance or an orderly “dismantlement” of the single currency. It is time for Europe to take a clear-cut decision in order to solve the still on-going sovereign debt crisis whilst preserving the balance of powers in the Union and ensuring the democratic legitimacy of its decision-making process.