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The ILC Meets in NYC:  Gender Diversity and End Work Product Emerge as Regular Themes  

by Kristen Boon

The International Law Commission, a group of 34 independent experts, charged with codifying and progressively developing international law is currently (and exceptionally) meeting at the UN in New York.

Amidst the substantive conversations on subsequent practice of treaties, customary international law, and jus cogens, there are two other themes that are coming up with some frequency.

First, the lack of gender diversity on the commission.  Second, the delay in developing the ILC’s work product into new treaties.

On gender diversity, the issue is a serious one.  In fact, a side event today is called “7 in 70”  that refers to 7 women in 70 years.   In its last elections, 4 women were elected to the ILC.  All were nominated from the European group.

While gender diversity has improved in many segments of the UN, the ILC remains seriously behind, and the Commissioners are concerned about it.   It is time to consider what new practices are required to improve diversity. For example, how can states open up their nomination process?  How can states ensure at the elections stage that that women are seriously considered?   As is well known, the ICC has an elections process designed to improve gender and other diversity on the bench, by a two list voting process.  As these photos show:  it has worked!

Compare this photo of the ILC members, and this photo of ICC judges.

Behind gender diversity is another consideration that a number of Commissioners have pointed out: although Art. 15 of the ILC Statute requires that its members be drawn from practice, academia and government, in reality, only individuals from well-funded organizations or institutions can make the unpaid 10-11 week commitment work.   The requirement to self-fund also has an impact on diversity, participation, and representation, particularly from developing countries.

A second theme of note is the fact that a major part of the work product envisioned for the ILC, namely the drafting of conventions, has slowed down.   The major recent projects of the ILC, such as State Responsibility, Responsibility of International Organizations, and Diplomatic Protection, have been replaced by the practice of writing draft articles (or conclusions) which are then taken note of by the General Assembly and recommended to Member States.  A number of countries, in particular Brazil, are heading the effort to move the Articles on State Responsibility, concluded in 2002, towards a treaty.  The idea is that the draft articles would serve as the basis of an eventual convention.  In addition, other issues could be discussion for addition, such as new articles on multiple breach or attribution.

From a law making process this issue is an interesting one:  states are asking what role the Commission should have in making law when it produces draft articles that are not turned into treaties, but then cited by courts as authoritative.   This issue of the paradox of form and authority was first raised by the late David Caron in 2002, when he noted the weight being given to draft articles.  Although many of the ASR are considered customary international law today, not all are, the most obvious example being the provisions on counter-measures.   If the ASR do become the subject of a new multilateral convention, it opens the way for other work product of the Commission, such as the Articles on Responsibility of IOs and the Articles on Diplomatic Protection to progress as well.

Dr. Mohamed Helal’s Defense of Russia’s Syria Vetoes & Power Politics – A Rejoinder to His Criticism of My Post

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

In his Opinio Juris post on May 4, Dr. Mohamed Helal provides a defense of Russia’s veto use related to the situation in Syria, one that he defends as in line with the negotiations of the UN Charter and a vision of veto power of the permanent members of the Security Council as a virtual carte blanche.

There is some merit to his argument; indeed, it appears to correspond with how at least certain permanent members do indeed read the UN Charter – that they can veto absolutely any Security Council resolution, at complete discretion, without any concern whether their actions are consistent with other bodies of international law or the purposes and principles of the UN Charter.

The question is whether this is how one should read the UN Charter. And, whereas Dr. Helal attacks my post, as “utopian thinking” there are at least 115 States that have joined the ACT Code of Conduct and 96 States that have joined the French/Mexican initiative, both calling for veto restraint in the face of genocide, crimes against humanity or war crimes, that would likely take issue with his approach. Indeed, two of the permanent members of the Council (France and the United Kingdom) have joined these important initiatives—so even these permanent members do not maintain veto power should be unrestrained in the face of atrocity crimes. (I am hoping the United States will join the UK and France, and also take this important step.)

Dr. Helal misstates my arguments or overstates his case in significant respects.

First, he claims that, in relationship to the situation in Syria, the Permanent Members “have exercised the veto exactly as anticipated when the UN Charter was negotiated.” In fact, current practice is far removed from the substance of the 1945 negotiations.

Examining each of Russia’s 12 vetoes (sometimes joined by China) related to Syria, we see vetoes of resolutions to:

(1) condemn continued widespread and gross violations of human rights and fundamental freedoms (draft resolution S/2011/612);

(2) condemn bombing and shelling of population centers and condemn the detention of thousands in government-run facilities (draft resolution S/2012/538);

(3) refer the Syrian situation to the International Criminal Court (draft resolution S/2014/348);

(4) express outrage at the alarming number of civilian casualties, including those caused by indiscriminate aerial bombings in Aleppo (draft resolution S/2016/846);

(5) decide on a 7-day ceasefire in Aleppo and demand that humanitarian assistance be allowed in (draft resolution S/2016/1026);

(6) condemn the use of toxic chemicals as weapons and demanded compliance with the Organisation for the Prohibition of Chemical Weapons (OPCW) (draft resolution S/2017/172);

(7) decide to renew the mandate of the Joint Investigative Mechanism (JIM) conducting chemical weapons inspections (draft resolution S/2017/172); and

(8) condemn “any use of any toxic chemical, including chlorine, as a weapon in the Syrian Arab Republic and express . . . outrage that civilians continue to be killed and injured by chemical weapons and toxic chemicals as weapons in the Syrian Arab Republic” (draft resolution S/2018/321).

There was nothing in the travaux préparatoires of the San Francisco Conference about using the veto in this way. The veto power has morphed into contexts that were simply never discussed in 1945.

Second, his extensive reliance on travaux from 1945, raises the question why we should be limited to a 1945 reading of the Charter and international law. That would be an impoverished understanding of international law, given the extremely significant developments that have occurred since then. In 1945, the Genocide Convention was not yet codified; in 1945, there was no convention on crimes against humanity (and there still isn’t today, although it is in progress); in 1945, there were only early war crimes, not the ones recognized today. There is a strong argument that we should not be looking to international law only from 1945 when we read consider how to read the UN Charter.

Third, when he defends Russia’s Syria vetoes as proper because they are seen as in Russia’s “vital interests” that may be how Russia sees this, but it is simultaneously repugnant. It should never be in the “vital interests” of any country to block chemical weapons inspections, to block humanitarian assistance, to block ceasefires, to block condemnation of bombing and shelling of population centers, to block condemnation of the detention of thousands, or to block referrals for prosecution.

Fourth, he admits that his reading of the Charter (defending unlimited veto power) comes at a cost of all the victims of “murderous dictators and warmongers.” Then isn’t their a problem of his reading of the Charter when it is so far out of line with the dictates of humanity? If this is the conclusion reached—that it is fine to block chemical weapons inspections which then facilitate the Assad regime’s use of these universally condemned indiscriminate weapons—then international law is failing both us, and, more importantly, the victims.

Fifth, he misstates my argument by suggesting I argue that jus cogens imposes an obligation to act or prevent jus cogens violations. While I reserve making that argument, what I wrote was that jus cogens is relevant to considering how to construe the veto power—that we should not read the veto power “in a way that is at odds with other bodies of international law.” My argument is that the UN Charter should not be read in a way that is inconsistent with jus cogens; none of the organs of the UN should be able to act in a way that ignores the constraints of jus cogens.

Sixth, I also argue that the veto power also needs to be read in a way that is consistent with the UN Charter’s purposes and principles. This is required by UN Charter article 24.2, which states: “[i]n discharging [its] duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.” How is it consistent with the Charter’s purposes and principles to use the veto in the way Russia (and sometimes China) have been doing related to Syria? The Security Council cannot be above the Charter—it was created by the Charter, and its powers are enumerated therein. One of the limitations on Security Council power is that its power must be exercised in a way that is consistent with the UN’s purposes and principles, otherwise, its exercise of power would be ultra vires.

Ultimately, I do not disagree that one can read the UN Charter the way that Dr. Mohamed Helal does; indeed, that is perhaps how far too many have been reading the Charter for far too long, uncritically accepting unlimited, unrestrained, veto use, that serves strategic alliances, and is unfettered by the constraints of international law and principles of humanity. This is just not an argument I want to make, or to accept. I do not believe my arguments are de lege ferenda, but that international law is sufficiently advanced that the Charter should be construed in a way that is consistent with jus cogens and the Charter’s own purposes and principles.

Jams v. IFC on IO Immunities

by Kristen Boon

On Thursday, May 10, the US Supreme Court will decide whether to grant cert in Budha Ismail Jam v.  International Financial Corporation(IFC), a case involving environmental damage arising from a coal fired power plant in India.    Two excellent blogs on the case written by Rishi Gulati in 2017 can be found here.

The case turns on the interpretation of a US Statute entitled The International Organizations Immunities Act which provides that international organizations designated by the President enjoy “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” 22 U.S.C. § 288a(b).

The plaintiffs argue that state immunity today clearly exempts commercial activities, and when an IO acts as a commercial lender in the marketplace, it should not be protected by immunities.  Their position is supported by the decision in OSS Nokalva v. ESA, and the concurring opinion of Pillard, J, at the District Court of Columbia Court of Appeals, who wrote:

Reading the IOIA to dynamically link organizations’ immunity to that of their member states makes sense.  The contrary view we adopted in Atkinson appears to allow states, subject to suit under the commercial activity exception of the FSIA, to carry on commercial activities with immunity through international organizations….  Neither the IOIA nor our cases interpreting it explain why nations that collectively breach contracts or otherwise act unlawfully through organizations should enjoy immunity in our courts when the same conduct would not be immunized if directly committed by a nation acting on its own.

The IFC argues that this phrase must be interpreted at the time in was enacted, in 1945, when foreign states enjoyed broad immunity.  Moreover, it argues the IOIA does not incorporate subsequent developments in the law of foreign-state immunity, including those enacted in the Foreign Sovereign Immunities Act (“FSIA”).   The briefs are available here.

There are a number of issues which the Supreme Court could usefully clarify if it takes the case, but I will mention three in particular.

First, it would be extremely helpful for the Court to unpack the analogies drawn between state and IO immunity in the IOIA.   Every other field of immunity (such as state, diplomatic, and charitable) has narrowed, and the presumption today of absolute IO immunity today stands as an outlier.  Any narrowing of IO immunity should be justified on its own grounds, and not simply in relation to the developments as regards to states.   As noted in Rishi Gulati’s post, the problem is the IOIA statute itself, which makes reference to state immunity.  As a result, the Supreme Court has to deal with problematic wording to get to this end.

Second, the concept of waiver has emerged as an extremely important issue in litigation over immunity. Specifically, what constitutes a waiver? Can it be express or implied?  Can it be given in advance?  And what does waiver practice in IOs tell us about the utility of this device?  The issue is particularly important with regards to the World Bank Group because these IOs have “charter-based waivers” built into their constituent instruments, which limit immunity in certain circumsntaces. Plaintiffs in suit against these organizations often argue that charter-based waivers exact a broad waiver of immunity. However, there have been occasions where courts have read down explicit provisions requiring waiver. In Mendaro, applying the ‘correspondent benefit’ test, the court analyzed the World Bank’s intent in including the waiver provision, and concluded it only waived immunity with regard to situations which  further its chartered activities.  A re-examination of Mendaro would be very timely, as it has had the effect of denying plaintiffs access to remedies despite an explicit provision for waiver in the charters of the WB group.

Third, given the increasing interest in and pressure on IOs to grant access to justice to individuals  affected by IO activities, these cases are part of a larger effort by classes of plaintiffs to get their day in court and clarify the relationship between immunity and responsibility for IOs today.  The Haiti Cholera Case, which I have written about here, for example, raises some similar issues (although it did not involve the IOIA).

This is an important case which raises significant legal issues.  It bears some similarities to another case, Honduras v. IFC,  making its way through the US courts.   I very much hope the US Supreme Court takes up the opportunity to weigh in.  If the Supreme Court were to lift or narrow the IFC’s immunities, it would then be necessary to assess the scope of the IFC’s liability (lender liability) and determine which substantive tort law applies, given that the acts took place outside of the US.

Something is Not Always Better Than Nothing: Against a Narrow Threshold Justification for Humanitarian Intervention

by David Hughes and Yahli Shereshevsky

[David Hughes and Yahli Shereshevsky are Grotius Research Scholars at Michigan Law School.]

Western forces have again attacked Syria following the suspected use of chemical weapons by the al-Assad regime. As in 2013 and 2017, international lawyers largely agree that the recent US, French, and British-led operation is illegal. Yet the recent strikes against chemical weapons facilities in Damascus and Homs are part of an enduring narrative concerning the legality and efficacy of unilateral (or unauthorized) humanitarian intervention (UHI). Within this discourse, a majority of legal scholars assert that humanitarian intervention – devoid of Security Council authorization – is legally invalid. However, as a recent post in Just Security demonstrates, though many states share this view, an increasing group now employ justificatory rhetoric in defense of the recent attacks. This rhetoric signals a potential shift. Following the NATO-led intervention in Kosovo, states and scholars vindicated the military response through universal appeals to human rights and justice. This language often remained non-specific. More recently, however, the language assumes precision. It abandons general assessments of an atrocity’s gravity and favors identification of particular incidents – like the use of chemical weapons – as a trigger to legitimize or legalize humanitarian intervention.

The response of international lawyers has been divided. Harold Koh identifies three camps, helpfully categorizing the broad positions that international lawyers assume within this debate. The first (and most sizable) holds that UHI is both illegal and illegitimate. The second offers that the practice remains illegal but certain manifestations may be legitimate. Finally, the third group are reformist (though some within this group already regard humanitarian intervention as lawful). They wish to create a more effective legal system to evaluate, and when necessary, facilitate humanitarian intervention as both a viable and legal response to atrocity crimes.

We address the second and third camps. Following recent events in Syria, some approaches offered by those who wish to preserve the necessity of humanitarian intervention exhibit a similar tendency to those states that seek to vindicate the recent strikes in narrow, incident-specific terms. Narrow exception tests that fail to appeal to the general gravity of atrocities risk further eroding the legal regime governing the use of force. Relegating broad appeals to gravity facilitates (often inadvertently) disingenuous attempts by states to harness humanitarian intervention’s moral force in furtherance of specific interests. The past week evidences how appeals to a chemical weapons justification contribute toward a narrative suggesting that the desire of certain states to reduce the threat of non-conventional weapons is motivated by strategic geopolitical objectives and not the harm these weapons cause. Further, such justification stands in contrast to the call for “common-sense” legitimacy – the appeal to the overarching gravity and universality of an atrocity – that constitutes the most persuasive case for deviating from black-letter adherence to the relevant norms. Those proponents of humanitarian intervention that offer justification premised upon a narrow threshold exception inadvertently diminish the normative force of the call for humanitarian intervention.

A move from the moral origins of humanitarian intervention towards incident-specific justifications:

The moral appeal of humanitarian intervention is grounded in the notion of gravity. Proponents of UHI traditionally suggested that the prevention of atrocity is compelled by the seriousness of the triggering event. Justification relied upon a broad humanitarian rationale. It discounted competing considerations that may otherwise prompt, or serve as a guise for, state interests. Traditionally, discussions concerning the appropriate standard for UHI identified the gravity of the atrocities before subsequent considerations regarding the necessity or effectiveness of the intervention. The case of Kosovo provides example. Here, the United Kingdom, did not appeal to a specific threshold. Instead, they justified their actions as a response to a “humanitarian catastrophe.” Other governments and NATO provided similar rationales.

Justifications of, and responses to, the recent events in Syria exhibit an increasing tendency amongst states to abandon gravity-based appeals. Instead, we are offered narrow exceptions in justification of UHI. These increasingly preference specific incidents, like the use of chemical weapons, above general assessments of the seriousness of the humanitarian crisis.

The United Kingdom was the first of the three states that recently intervened in Syria to provide legal reasoning. The UK appears to have maintained its gravity-based justification of UHI. Its defense of the Syrian attack began in conformity with its 2013 rationale which based legality on: (i) evidence of large-scale humanitarian distress; (ii) absence of alternatives to the use of force; and (iii) the necessary, proportionate, and limited application of force. Now, departing from their Kosovo approach, the British referenced the more limited use of chemical weapons to satisfy the test’s criteria. They concluded that, “military intervention…in order effectively to alleviate humanitarian distress by degrading the Syrian regime’s chemical weapons capability and deterring further chemical weapons attacks was necessary and proportionate and therefore legally justifiable [emphasis added].”

Though Britain’s reasoning has been criticized on various grounds, it is our present concern that deriving legal permissibility from an incident-specific threshold facilitates, as Marko Milanovic recognized, “a limited intervention focused specifically on chemical weapons, but that does almost nothing for the wider humanitarian catastrophe.”

While the British justification began by appealing to the gravity of the Syrian crisis, its turn to the specific use of chemical weapons was accentuated by other states. In its statement to the Security Council, France noted Syria’s disregard for basic humanitarian principles. After citing the scope of the catastrophe, France shifted emphasis. Their Permanent Representative to the UN stated that, “the Syrian regime has been using the most terrifying weapons of mass destruction – chemical weapons – to massacre and terrorize its civilian population.” This focus, on the use of chemical weapons, prioritized strategic interests above gravity-based humanitarian considerations. France declared that the use of such weapons constituted a threshold of which violation could not be tolerated. In response to their deployment, the Syrian operation was described as compliant with the UN Charter. France noted that the Syrian operation, “was developed within a proportionate framework, restricted to specific objectives… Syria’s capacity to develop, refine and manufacture chemical weapons has been rendered inoperative. That was the only goal and it was achieved [emphasis added].”

The United States has not yet offered a formal legal justification. Initial political pronouncements accentuated humanitarian considerations. More recently, however, Secretary of Defense Mattis linked enforcement of a prohibition on the use of chemical weapons with the operation’s legality. The Secretary told a press briefing that, “… we worked together to maintain the prohibition on the use of chemical weapons… We did what we believe was right under international law, under our nation’s law.”

Several states have expressed support for the attack. The vast majority have based their (often limited) reasoning on the use of chemical weapons. Prime Minister Trudeau noted that, “Canada condemns in the strongest possible terms the use of chemical weapons in last week’s attack…Canada supports the decision by the United States, the United Kingdom, and France to take action to degrade the Assad regime’s ability to launch chemical weapons attacks against its own people.” Similarly, Prime Minister Abe stated that, “the Japanese government supports the resolve of the United States, Britain and France not to allow the proliferation or use of chemical weapons.” Chancellor Merkel informed that the acting states had taken, “responsibility in this way as permanent members of the UN Security Council…to maintain the effectiveness of the international rejection of chemical weapons use and to warn the Syrian regime against further violations.” Israel issued a statement noting that, “last year, President Trump made clear that the use of chemical weapons crosses a red line. Tonight, under American leadership, the United States, France and the United Kingdom enforced that line.” Finally, the NATO Secretary General stated that, “the use of chemical weapons is unacceptable, and those responsible must be held accountable.”

Resisting a limited threshold exception for humanitarian intervention:

These legal and extra-legal arguments have caused some commentators to ponder the emergence of a narrow threshold. This has led to suggestions that UHI may be justified if this threshold – increasingly identified as the use of chemical weapons – is breached. Endorsements of this view appeal to the belief that “something is better than nothing.” They accept the achievable rather than the ideal. And they perceive, while pursuing alignment with, an emerging state practice that exhibits tolerance of a particular form of narrow intervention.

Following the US, British, and French operation, Harold Koh reiterated his call for legal reform. Koh proposes a six-stage test. Though this begins with a traditional appeal to the general gravity of the event – humanitarian intervention is framed as a need “to prevent or mitigate extreme human rights disasters” – the proposed test diverges from its justificatory origins. The test’s first stage is described as mandatory and requires:

“a humanitarian crisis [that] creates consequences significantly disruptive of international order – including proliferation of chemical weapons, massive refugee flows, and events destabilizing to regional peace and security – that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under U.N. Charter Article 51) [emphasis added].”

The test’s second stage – described as a criterion that may strengthen justificatory appeals – refers to an intervention that, “would help to avoid a per se illegal end, e.g., genocide war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians…” Koh’s approach demands that the intervening state(s) exhibits a vested interest while relegating justifications grounded in gravity and universality to a secondary (non-mandatory) consideration.

Koh’s proposal has become the focal point for reformist efforts. These have increased as the recent attacks and the desire to respond to the ongoing Syrian crisis have prompted the adoption of a narrow threshold. Andrew Bell advocates for a qualitative approach. The use of chemical or biological weapons provides an identifiable standard. Bell proposes that a violation of this standard would justify humanitarian intervention. Anders Henriksen considers whether a specific norm has emerged that permits an intervention in response to the use of chemical weapons. This would maintain the assumption of illegality toward instances that do not cross this threshold. Charles Dunlap, also responding to the events in Syria, conducts a similar inquiry while employing a different legal argument.

These proponents, alongside those who view UHI as invariably illegal, participate in a broader debate regarding the use of force. Variants of this debate are present within considerations regarding the use of force against non-state actors, the employment of anticipatory self-defense in reply to an imminent attack, and, of current relevance, the appropriate use of humanitarian intervention. On one side of this debate is the belief that strict doctrinal adherence to the UN Charter’s prohibition on the use of force is necessary to ensure legitimacy and prevent abuse. Alternatively, others hold that this regime is threatened by a schism between what states do or moral necessity and a formalist interpretation of the law limiting the use of force.

This becomes a conversation about the legitimacy and efficacy of international law. It is a debate about how to best preserve international law’s relevancy and insulate against its misuse. Responding to the dictates of realpolitik, instances of Security Council paralysis, and a lineage of cynical legal arguments favoring misguided “humanitarian” forays, this broader discourse proposes “appropriate” responses to this reality. Those supporting the necessity of humanitarian intervention believe that the legitimacy of international law, the demands of morality, and an accurate accounting of state actions are best served by a reading of the UN Charter and international law that permits a qualified form of UHI.

These proponents of humanitarian intervention traditionally employ the language of sensibleness. Common-sense appeals to the legitimacy of intervention will begin with the paradigmatic case of genocide and there is room to debate where they will end. These arguments derive normative force from the atrocity’s gravity. They constitute the strongest argument in favor of developing a legal exception to Article 2(4) of the UN Charter, of revising a traditional conception of sovereignty, of expending military force and resources, and of promoting a cosmopolitan ideal. It is unlikely that common-sense appeals to an atrocity’s gravity will persuade that intervention is legitimate to prevent the use of chemical weapons (or other narrow exceptions) while it is not legitimate in response to the equally grave, and often much worse, atrocities caused by conventional weapons. Reasoning that favors a limited threshold exception does not adhere to the internal logic expressed by proponents of humanitarian intervention who believe that the law must better fit the dictates of reality, the demands of morality, and the needs of the international community.

Efforts to ensure against the abuse of a humanitarian exception to the prohibition on the use of force are ever-present. This concern is, of course, very real. The desire to protect against such abuse through a clearly identifiable threshold is understandable. Yet, the appeal to a chemical weapons exception must be understood in light of the various statements of the involved and supportive actors whose motivations appear to depart from the underlying humanitarian justifications that traditionally accompany the call for UHI.

Endorsement of this approach by proponents of humanitarian intervention poses another, subtler, danger. This danger remains relevant even in cases where there is a genuine belief that the actors operated in good-faith and no fear of abuse exists. Divergence from black-letter adherence to the use of force regime entails significant cost. It may only be justified by reasoning that these costs are less than the alternative costs incurred by failing to address the dictates of reality. The normative case for humanitarian intervention is contingent on a common-sense legitimacy argument rather than only upon the provision of a workable test or standard. The case for humanitarian intervention must subscribe to a general notion of gravity to persuasively offer an attractive alternative to a formal reading of the Charter.

Prioritizations of gravity appear to be missing from this current trend. For example, Andrew Bell does not sufficiently address the gravity argument when he proposes adoption of a limited exception. Similarly, and as Kimberly Trapp suggests, Koh discounts many potential atrocities that do not threaten the intervening state. Such endorsements of UHI shift the discourse away from universalist and gravity-based considerations that have supplied proponents of humanitarian intervention with normative purchase.

Clearly, workability and relevant safeguards demand consideration by those proposing a UHI framework. Yet proponents, those who favor a limited approach or narrow threshold, would be well-served to resist a shift away from gravity-based justifications. A narrow exemption test that fails to prioritize assessments of gravity is problematic. Similar arguments, favoring a limited exception, are increasingly employed by states in justification of and in response to the recent use of chemical weapons in Syria. By abandoning or deemphasizing the common-sense legitimacy and gravity-based approach, the language of humanitarian intervention conflates with the strategic political calculations of certain states. Proponents of humanitarian intervention must adhere to their internal logic to strengthen the genuine humanitarian interests, moral coherence, and legal viability of their respective positions.

On the Legality of the Russian Vetoes in the UN Security Council and the Harsh Reality of International Law: A Rejoinder to Professor Jennifer Trahan

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty at the Mershon Center for International Security Studies, The Ohio State University.]

On April 10, 2018, Russia vetoed a UN Security Council resolution drafted by the United States that would have created a mechanism to investigate the use of chemical weapons against civilians in Syria. This Russian veto was neither unexpected nor unprecedented. This was Russia’s twelfth veto to protect its Syrian allies against UN intervention since the outbreak of the Syrian civil war over seven years ago. In 2017 alone Russia exercised its veto five times to prevent the adoption of resolutions on the conflict in Syria (on one occasion, China joined Russia in vetoing a proposed resolution). The only other veto used in 2017 was cast by the US when it prevented the adoption of a draft resolution that challenged America’s recognition of Jerusalem as the capital of Israel.

In a thoughtful piece recently posted on Opinio Juris, Professor Jennifer Trahan argued that the Russian veto was “illegal” and “illegitimate.” She also suggested that the repeated use of the veto by Russia could make it “complicit in facilitating the commission of atrocity crimes.” In this post, I will be focusing on the former claim regarding the legality of the Russian vetoes. Before proceeding, however, I should note that I seriously doubt that a vote or veto on the Security Council could constitute complicity in the commission of an atrocity crime as the concept is understood in the law of state responsibility or in international criminal law. (See generally: Miles Jackson, Complicity in International Law)

Turning now to the question of the legality of Russia’s vetoes, let me put it succinctly: Russia’s veto on April 10, and its previous eleven vetoes on draft resolutions relating to Syria, were lawful. In fact, each of the 203 vetoes (for the full list: see here) cast by the five Permanent Members of the UN Security Council since the veto was first exercised by the Soviet Union on February 16, 1946, were lawful.

To explain my position I’m going to identify and engage with the arguments that Professor Trahan put forth to support her claim that the Russian veto was unlawful:

First: Professor Trahan writes: “When the veto was drafted into the UN Charter, it was to guarantee unanimity of action by the permanent members as to the use of force.”

That is not exactly true. The purpose of the veto was not to “guarantee unanimity of action by the permanent members.” Rather, the veto was intended as a guarantee to the Permanent Members that the United Nations, acting through the Security Council, would not threaten their security or vital interests.

The experience of the League of Nations and its failure to prevent World War II were probably the single most influential factors in shaping the thinking of the founders of the UN as they designed the structure of the new organization and determined its functions, powers, and prerogatives. The creators of the UN assumed that the principal reason for the demise of the League of Nations was the fact that the Great Powers of that era either never joined the League, as in the case of the US, or were expelled from it, as in the case of the Soviet Union. Therefore, it was agreed early on among the UN’s founders, namely: Franklin Roosevelt, Joseph Stalin, and Winston Churchill, that the success of the future international organization that was to be called the United Nations (which was the name of the military alliance led by the US, the USSR, and Britain that defeated the Axis in World War II) hinged on ensuring that the most powerful states in the international system joined and remained part of the UN. The price to be paid to ensure that these powerful states consented to joining the UN and staying within its ranks was to provide assurances to these countries that the UN would never threaten their national security or their vital interests.

The assurances that were agreed and written into the UN Charter were the permanent membership of those states on the Security Council and their right to veto any resolution that they considered detrimental to their interests. These assurances, especially the veto, were non-negotiable prerequisites for the future Permanent Members, especially the US and the USSR, to join the UN. Indeed, at the San Francisco conference during which the UN Charter was negotiated, Tom Connally, a US Senator from Texas who was a member of the US delegation, told the delegates opposed to the veto in characteristically Texan bluntness that if they “killed the veto” they would also “kill the Charter.”

In addition to seeking to avoid the fate of the League of Nations, the structure and powers of the Security Council and the veto that was granted to its Permanent Members reflect a particular vision that was held by the creators of the UN regarding the nature of the international system and the prerequisites of maintaining world order. Having endured two world wars in their lifetimes, the UN’s founders assumed that the primary threat to international peace and security was conflict between the Great Powers. Other conflicts or crises may cause serious tensions and even lead to armed confrontations. Nonetheless, given their military prowess and their global political influence, it was assumed that preventing Great Power war should be the principal objective of the UN. Accordingly, the Security Council was designed as a forum to facilitate regular communications and consultations between the Great Powers. This, it was hoped, would contribute to maintaining the peaceful coexistence of those states.

That was, and remains, the logic underlying the veto and the architecture of the Security Council. That is why, as I’ve argued in a recent essay, it is a mistake to call the Security Council a collective security body. If anything, the Security Council was, and remains, a Great Power Concert akin to the Concert of Europe. It is a directorate composed of Great Powers that was intended to provide an institutional mechanism for those states to jointly oversee the operation of the international system.

Second: Professor Trahan suggests that the Russian veto represents an abuse of power. She writes: “It is time to recognize that the veto power is being abused in a way never anticipated when the Charter was drafted.” She also claims that the veto “had absolutely nothing to do with blocking investigations and/or prosecution of atrocity crimes.”

Again, I respectfully disagree. Russia, and the other Permanent Members, have exercised the veto exactly as anticipated when the UN Charter was negotiated. This is patently apparent from a careful perusal of the Charter’s travaux préparatoires. Unsurprisingly, the veto was the most controversial aspect of the UN Charter when it was being negotiated in San Francisco. Many delegations expressed misgivings about extending such a prerogative to the Permanent Members and worried about the potential for its abuse. Therefore, led by Australia’s Foreign Minister Herbert Evatt, the future UN Member States submitted a questionnaire to the future Permanent Members to invite them to clarify the limitations on the veto and the situations in which it would and would not be exercised.

In response, the future Permanent Members submitted a joint statement that revealed that the veto was designed to be a virtually limitless power to prevent the Security Council from taking any action that a Permanent Member considered threatening to its vital interests. The only notable restrictions on the veto were: (1) a Permanent Member may not prevent another UN Member State from bringing a matter to the Security Council’s attention, and (2) a Permanent Member that is a party to a dispute that is being considered by the Security Council is required to abstain from the vote on resolutions adopted under Chapter VI of the UN Charter. The rationale for these minimal limitations on the veto is encapsulated in what is probably the most important paragraph of the joint statement the future Permanent Members prepared in response to the questionnaire submitted by the other negotiating parties at the San Francisco conference. They said:

decisions and actions by the Security Council may well have major political consequences and may even initiate a chain of events which might, in the end, require the Council under its responsibilities to invoke measures of enforcement . . . This chain of events begins when the Council decides to make an investigation, or determines that the time has come to call upon states to settle their differences, or makes recommendations to the parties. It is to such decisions and actions that unanimity of the permanent members [i.e. the veto] applies

In other words, even non-forcible measures such as calling on belligerents to agree to a cease fire or condemning the use of force by a state, or even the simplest diplomatic censure, or, as in the case of Syria, calling for an investigation of allegations of mass crimes were all considered measures that could be vetoed by a Permanent Member. The theory was that, while individually those measures may seem minimally invasive or politically benign, they could “initiate a chain of events” that might ultimately threaten the security or interests of the Permanent Members.

The delegates in San Francisco immediately realized the implications of the veto. As one delegate stated: the veto made it “impossible for the Security Council to determine the existence of a threat to the peace or act of aggression by one of the Permanent Members.” Moreover, because the Great Powers could define the scope and nature of their vital interests as they pleased, it was recognized that they could freely extend their immunity from Security Council action to their allies. Indeed, the tragic irony of history is that while the UN Charter was being negotiated in 1945, Syria provided a preview of how the future Security Council would operate. Seeking to reestablish itself as a colonial power after its liberation from Nazi occupation, France was executing a brutal intervention in Syria to quell an uprising that was demanding independence from France. This intervention included aerial bombardment of Syrian cities, including Damascus, and which caused mass civilian casualties. Referring to this French aggression, the Egyptian delegate warned that “France would have been able to exercise her right of veto, had the Security Council been in existence and had France occupied a permanent seat. France could have prevented the application of any enforcement measures to stop this action.” In short, the impact of the veto and the way in which it would operate were clearly recognized and fully anticipated even before the text of the UN Charter was finalized and adopted.

Applied to the Syrian context and viewed from Moscow’s perspective, it is not politically unreasonable for Russia to expect that an investigation that could potentially attribute a chemical attack to the Syrian regime might lead to calls to create mechanisms to hold the leaders of the Syrian regime accountable for mass atrocities. These are developments that could result in a “chain of events” that could ultimately undermine Russian strategic interests in Syria and the region.

This, of course, is a tragic and inhumane outcome. I agree with Professor Trahan that it is “cold comfort to the victims.” But the harsh reality is that, viewed from an historical perspective, the Security Council’s inaction on Syria is utterly unremarkable. The Security Council is behaving according to the terms of the deal that was made in 1945. Pursuant to this deal, the Great Powers agreed to join the UN in return for an assurance that their vital interests would be protected. The price, of course, is that since the creation of the UN millions of human beings have been victimized, murderous dictators and warmongers, such as Bashar Al-Assad, have escaped accountability, and numerous countries and entire societies have suffered egregious violations of international law in places such as Hungary (1956), Egypt (1956), Czechoslovakia (1968), Afghanistan (1978-1989), Iran (1980-1988), Iraq (2003), Palestine (since 1948), etc.

That is why I believe that in dealing with the Syrian civil war, the Security Council operated exactly as it was intended to function. It prioritized the strategic interests of a Great Power – Russia – over the human costs of war. This is because the Security Council is not a global law enforcer. It is not an international 911 dispatcher. Nor is it a collective security mechanism that guarantees its members protection against aggression. The Security Council cannot, as Professor Trahan suggests, “reign in its own permanent members.” If anything, the Council is beholden to the wills and whims of its Permanent Members. This is because the Council is a Great Power Concert designed to facilitate Great Power relations and preserve Great Power peace. That is the Faustian pact at the heart of the UN Charter; a pact that has not been revised since 1945. (For more on this, see my Article titled: Am I My Brother’s Keeper? The Reality, Tragedy, and Future of Collective Security)

Third: Professor Trahan argues that the Russian veto is “at odds with other bodies of international law (such as the highest level jus cogens norms).”

Regretfully, I disagree. The prohibitions on genocide, war crimes, and crimes against humanity have undoubtedly attainted the status of jus cogens rules. These rules, however, are peremptory substantive prohibitions. That means that all states are under a jus cogens obligation not to commit genocide, war crimes, or crimes against humanity, whether on their own territory or on the territory of another state. Moreover, pursuant to this obligation, all states are required to ensure that those crimes are not committed either by non-state actors on their own territory or by non-state actors acting under their direction and control on the territory of another state.

However, there are no procedural jus cogens rules relating to the enforcement of these substantive prohibitions. In other words, while all states are under an obligation not to commit those crimes, either directly through their own agents or indirectly through non-state actors, states are not under a jus cogens obligation to prevent the perpetration of these atrocities when committed by another state on its own territory or on the territory of a third state.

This distinction between substantive and procedural obligations was at the core of the reasoning of the International Court of Justice in the Arrest Warrant Case and in the Case Concerning the Jurisdictional Immunities of the State. While both these cases related to the question of immunities, the logic underlying the distinction between substantive and procedural rules can be extended and applied to this discussion of the legality of the Russian veto. The fact that the prohibitions on atrocity crimes, such as war crimes and crimes against humanity, have attained the status of jus cogens, has not led to the development of a corollary jus cogens obligation to prevent the perpetration of those crimes when committed elsewhere. Therefore, while Russia, the other Permanent Members of the Security Council, and indeed the entire UN membership, are bound by the substantive jus cogens prohibitions on crimes such as genocide, war crimes, and crimes against humanity, these states are not under a jus cogens obligation to actively prevent the perpetration of those crimes. Moreover, it would stretch the instruments of treaty interpretation to read anything in the UN Charter as generating any such an obligation, especially given the track record of the Security Council and the practice of its Permanent Members.

As a normative matter or as de lege ferenda, one definitely hopes that international law would develop a jus cogens rule requiring states to prevent the perpetration of mass atrocities. However, such a rule definitely does not exist as lex lata. It is important to note, however, that a Russian veto in the Security Council does not affect the existing treaty-based grounds for asserting jurisdiction to prosecute or extradite alleged perpetrators of international crimes, in Syria or elsewhere. Regardless of whether the Security Council chooses to investigate the atrocities committed by the state and non-state belligerents in Syria, states parties to treaties such as the Convention Against Torture have an obligation to prosecute or extradite perpetrators of the crimes prohibited pursuant to those treaties.

Conclusion:

Let me make one thing clear. The Syrian civil war and the human suffering it has wrought is a blight on the conscience of humanity. It is a tragic and heartbreaking situation. An impartial investigation into the crimes committed by all belligerents, both local and foreign, must be undertaken. The role of foreign states in funding and fueling the conflict in Syria also deserves to be fully examined, documented, and revealed. Moreover, the crimes committed by the Assad dynasty over decades of dictatorial rule must be investigated. Nothing short of a comprehensive commission of inquiry followed by the appropriate accountability measures will suffice to begin the process of post-conflict justice and reconciliation and to achieve a sustainable peace in Syria.

Furthermore, my objective is not to defend Russia or to engage in an apology for power politics. Rather, my purpose is to clarify that criticism directed at institutions such as the Security Council or practices such as the veto are misplaced and reflect a misunderstanding of the nature of that institution. The causes of humanity and the vindication of human rights will gain little by ignoring or misunderstanding the realities of power. In fact, any realistic solution to the Syrian crisis and any chance for holding those responsible for the atrocities committed in that conflict will depend on taking the strategic interests of all Great Powers and regional players into consideration. Any other approach risks becoming a futile exercise of utopian thinking that is unmoored from the harsh political reality in which international law operates.

The Narrow Case for the Legality of Strikes in Syria and Russia’s Illegitimate Veto

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

On April 13, the US, UK and France launched a barrage of missiles at three chemical weapons-related sites in Syria, in response to the most recent attack in Douma, part of a long series of chemical weapons attacks, attributed to the regime.

The UK has set forth its legal position on the strikes, justifying them as “humanitarian intervention,” while France and the US asserted the legality of their action without articulating a legal theory (nor did the US articulate any legal theory for its similar 2017 strike). There is of course no justification for three permanent members of the Security Council to use force at will, so there needs to be a basis under international law. The UN Charter only clearly permits use of force under two exceptions: (1) UN Security Council Chapter VII authorization, and (2) the right to self-defense under UN Charter article 51. A third scenario where force is also permissible is consent of the host country. None of these three scenarios appears applicable in the current instance.

While some have already blogged that there was no legal basis for the recent military strike in response to the Assad regime’s latest use of chemical weapons (including Kevin Jon Heller on Opinio Juris), there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice. And the recent use of force has received support, again not only by the “West,” but by the Gulf Cooperation Council, to name an example. Though this support was not based on a legal theory, it is nonetheless significant.

On the question of legality, there appears a split between those states and scholars who take the view that humanitarian intervention is (1) under a strict reading of the Charter, never legal, (2) fully legal, or (3) in line with practice and an updated reading of the Charter sufficient that it falls into at least a “grey area” of legality. (See my article substantiating this third position.)

Why do we have this split in views on humanitarian intervention? It goes back (at least) to Kofi Annan in 1999 asking the very important question: “if in those dark days and hours leading up to the [1994] genocide [in Rwanda], a coalition of states had been prepared to act, in defense of the Tutsi population but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold?” While early formulations of the doctrine of the “responsibility to protect” (R2P) were quite encouraging, later formulations appear to answer the question by emphasizing both the duty to act in the face of atrocity crimes, but the need for Security Council approval for forceful intervention. To this author, R2P then gives a disappointing answer to Kofi Annan’s question of what to do in the event of Security Council paralysis, by responding that one waits for the Security Council to act. In the face of mass atrocity crimes, this is cold comfort to the victims.

A large number of states have now come forward over the last decade and a half to ask the permanent members to pledge themselves to veto restraint in the face of atrocity crimes (genocide, crimes against humanity and war crimes). Important initiatives in this respect include the ACT Code of Conduct, and the French/Mexican initiative. It is however concerning that only two permanent members of the Council, the UK and France, have taken this pledge. One might well ask: if the US cared enough about the Syrian victims and Assad regime’s chemical weapons use to engage in a military strike, then perhaps it could also take this simple pledge not to use its veto in the face of atrocity crimes?

Aside from legal questions as to the strike and whether or not it met appropriate criteria of legitimacy (as well as why the US is not doing more to solve the Syrian crisis or admit Syrian refugees as Harold H. Koh well asks), let us recognize that we are in a place we should never have reached. First, the Assad regime should never have been using chemical weapons against its own people in violation of multiple treaties banning them (nor committing countless other atrocity crimes that don’t always draw an equal share of the headlines). Second, Russia, sometimes joined by China, should never have been using its veto to block investigations as to chemical weapons use, to condemn their use (and other indiscriminate weapons use) or referral of the situation for prosecution, in the face of widely acknowledged crimes against humanity and war crimes. (Allowing investigations or prosecution, or issuing condemnation, does not directly halt the commission of atrocity crimes, but at least it communicates: “the world is watching and accountability is coming,” when the veto in such circumstances conveys exactly the opposite.)

When the veto was drafted into the UN Charter, it was to guarantee unanimity of action by the permanent members as to the use of force. It had absolutely nothing to do with blocking investigations and/or prosecution of atrocity crimes. It is time to recognize that the veto power is being abused in a way never anticipated when the Charter was drafted, and in a way that is at odds with other bodies of international law (such as the highest level jus cogens norms) and the “purposes and principles” of the UN Charter, with which the Security Council (including its permanent members), are bound, under article 24.2 of the Charter, to act in accordance.

Whether the Security Council is to be seen in the future as an effective and credible institution will depend in part on whether it can reign in its own permanent members’ behavior when they utilize the veto, or threat of veto, in the face of mass atrocity crimes. Those permanent members engaging in such actions appear to fail to recognize that, in addition to being complicit in facilitating the commission of atrocity crimes, they are undermining the Council itself. This behavior then force the US, UK and France into taking action that is worrying to many other states for its potential of pretextual or abusive invocations. The argument of abuse is not ultimately, however, fully convincing: does anybody argue we should do away with the right of self-defence because it is sometimes abused, for instance, by Turkey in Syria? But of course unilateral humanitarian intervention should, ideally, never prove necessary. And if would not if we didn’t have illegal vetoes.

The ICC’s Curious Dissolution of the Afghanistan Pre-Trial Chamber

by Kevin Jon Heller

Many ICC observers have been wondering why the Pre-Trial Chamber is taking so long to decide on the OTP’s request to open a formal investigation into the situation in Afghanistan. A little-noticed document filed by the Presidency on March 16 provides at least part of the explanation: because of  the recent judicial elections, the Presidency has dissolved the PTC that was handling the Afghanistan situation (PTC III) and reassigned the situation to a newly-constituted PTC (PTC II). Here is the relevant paragraph of the document:

HEREBY FURTHER DECIDES to reassign the situation in the Republic of Côte d’Ivoire from Pre-Trial Chamber I to Pre-Trial Chamber II, to re-assign the situation in the Gabonese Republic from Pre-Trial Chamber II to Pre-Trial Chamber I and to re-assign the situations in the Islamic Republic of Afghanistan and the Republic of Burundi from Pre-Trial Chamber III to Pre-Trial Chamber II.

The Presiding Judge of PTC III, Judge Mindua, has been reassigned to PTC II, so he will continue to deal with the Afghanistan situation. But the other two judges assigned to the new PTC II, Judge Akane and Judge Aitala, have just been elected to the Court. So PTC II now has to essentially start over with regard to the OTP’s request to open a formal investigation. Here is Kate Clark on behalf of the Afghanistan Analysts Network (AAN):

The Court had to re-assign the decision on Afghanistan to a new panel of judges (see details here). The new panel has had to start from scratch, wading through and considering all the material gathered on Afghanistan over the last decade. An ICC press release warned “it cannot be determined at present how many more weeks/months this process will take.”

I cannot find the quoted press release on the ICC’s website, but it makes sense that the Presidency’s assignment of two newly-elected judges to PTC II will slow down the Chamber’s analysis of the OTP’s request.

A question, however, still nags at me: given the importance of the Afghanistan decision — arguably one of the most momentous in the ICC’s history — and the fact that PTC III has been (actively) dealing with the OTP’s investigation request for nearly four months, why would the Presidency dissolve PTC III now? If the terms of the other two judges had expired, the decision would be understandable: even if the Presidency had assigned two experienced judges to the newly-constituted PTC II, those judges would have needed some time to familiarise themselves with the Afghanistan situation. But that is not what happened here: the Presidency simply reassigned the other PTC III judges — Judge Chung and Judge Pangalangan — to the Trial Division. That is not only problematic in terms of the resulting delay, it also means (pursuant to Art. 39(4) of the Rome Statute) that neither Judge Chung nor Judge Pangalangan will be able to hear any case that comes out of the Afghanistan investigation.

Would it not have been better to leave PTC III alone until it made a decision on the OTP’s request to investigate? I don’t see anything in the Rome Statute that required the Presidency to reassign Judge Chung and Judge Pangalangan. Judges assigned to the Pre-Trial Division normally serve for three years. Judge Pangalangan has three months left in his tenure (he was assigned to the Division on 15 July 2015), and although Judge Chung’s three years ended on March 11 (he joined the Division on that date in 2015), Art. 39(3) provides that judges who have served three years shall continue to serve “thereafter until the completion of any case the hearing of which has already commenced in the division concerned.” The language of Art. 39(3) is typically ambiguous regarding the situation/case distinction, but it’s at least arguable that the provision applies to a pending PTC decision concerning an investigation request. So, again, it does not appear that the Presidency had to reassign Judge Chung and Judge Pangalangan.

Let me be clear: I am not imputing any nefarious motives to the Presidency. I don’t believe the dissolution of PTC III was some kind of backhanded ploy to prevent the OTP from investigating the Afghanistan situation. The new PTC II will eventually authorise the investigation — the personnel changes are just delaying the inevitable. Moreover, it may well be the case that, logistically, reassigning Judge Chung and Judge Pangalangan could not be avoided. I have not systematically analysed the workload of the old judges or the qualifications of the new ones.

Once again, though, the Court’s lack of transparency does it no favours. Given the impact of the Presidency’s decision on the closely-followed Afghanistan situation, it is not enough for it to mechanically recite the various considerations in the Rome Statute concerning the assignment of judges. If only to avoid the kind of conspiracy theories that I personally reject, the Presidency needs to explain precisely why PTC III could not remain intact until it reached a decision on the OTP’s request to open an investigation.

EU Court Condemns the EU Legislative Process for Lack of Transparency: Time to Open Up?

by Massimo Frigo

[Massimo Frigo is a Senior Legal Adviser of the International Commission of Jurist’s Europe Programme.]

It is sometimes cases on obscure administrative processes that become landmark judgments in the ever constant building of our democratic legal systems. In the US Marbury v. Madison was a case that at the time attracted little attention as the subject matter related to respect of procedures in judicial appointments. This notwithstanding it came to be the legal milestone of constitutional review in the US legal system.

In the European Union one of these cases was decided on 22 March: Emilio De Capitani v. Parliament. As it will be outlined below, it is a technical case that goes to the heart of the procedure of one of the fundamental institutions in a democracy: Parliament.

  1. The EU legislative decision-making process

Unlike the United States, the European Union is not a State. However, it retains more and more competence to legislate in areas of everyday life and of crucial constitutional State prerogatives, including in the sphere of justice and home affairs that includes immigration, asylum, border control, and police cooperation.

The legislative process of the EU may be generally simplified in this way: the European Commission, i.e. a body of supposedly independent experts appointed by the European Council (see, the 28, soon 27, heads of State or government of its Member States) and approved by the European Parliament (the only institutions directly elected by EU citizens), has the initiative to table legislation.

Once the proposal is tabled it is the turn of the co-legislators to discuss it, amend it, approve it or reject it. At any moment the European Commission can withdraw the proposal and put an end to the process.

The EU legislators are the European Parliament and the Council of the European Union. The latter consists of the Governments, often in the configuration of the ministries relevant to the legislative piece to be discussed, of the EU Member States. These two bodies must agree on the legislative text, and its potential modifications, and approve it in the same form before it can become law. They can do it in one or two reading sessions.

In the last decades, since this procedure (once called “co-decision” and now “ordinary legislative procedure”) came to exist, a practical solution to speed up the legislative procedure was found by holding what are called “trilogues”. These are closed meeting among representatives of the Council of the EU, the European Parliament and the European Commission to find a compromise and produce an agreed text that will have to be voted by their respective committees and plenaries into law.

The practice of these trilogues is that no one has access to them nor to any document on the suggestions of compromise. Furthermore, when an agreement is reached, statistically, both the Parliament and the Council approve the compromise into law. It is therefore a key moment in the legislative process. And it is absolutely foreclosed to EU citizens and civil society.

  1. The case

Mr De Capitani brought a challenge to the General Court of the European Union, the judicial body competent for cases against EU institution at first instance, because Parliament, after having consulted the Council and the Commission, refused him access to the part of a document in the legislative process. Specifically this part of the document is the fourth column in a tabled document that reports the compromises reached or suggested during the trilogues, while the first three of them include the original proposal and the positions of the institutions.

  1. The judgment

The General Court ruled that, “contrary to what the Council maintains …, … the trilogue tables form part of the legislative process.” (para 75, , De Capitani)

It pointed out that

78. … it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole … .

The Court dismissed the EU institutions’ exception that non-disclosure was necessary because the document dealt with a draft law in the area of police cooperation. The Court very strongly ruled that

89… the fact … that the documents at issue relate to the area of police cooperation cannot per se suffice in demonstrating the special sensitivity of the documents. To hold otherwise would mean exempting a whole field of EU law from the transparency requirements of legislative action in that field.

Furthermore the Court stressed that

90…. the documents at issue concern a proposal for a draft regulation, of general scope, binding in all of its elements and directly applicable in all the Member States, which naturally concerns citizens, all the more so since at issue here is a legislative proposal directly affecting the rights of EU citizens, inter alia their right to personal data protection …, from which it follows that the legislative proposal could not be regarded as sensitive by reference to any criterion whatsoever … .

The Court then dealt with the assertion that access to these documents could increase public pressure on the representatives of the EU institutions involved in the trilogue procedure:

98… in a system based on the principle of democratic legitimacy, co-legislators must be held accountable for their actions to the public. If citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information … Thus, the expression of public opinion in relation to a particular provisional legislative proposal or agreement agreed in the course of a trilogue and reflected in the fourth column of a trilogue table forms an integral part of the exercise of EU citizens’ democratic rights, particularly since … such agreements are generally subsequently adopted without substantial amendment by the co-legislators.

Finally, while allowing still the possibility for certain situations (“duly justified cases”) of non-disclosure for co-legislators, including Parliament (para 112, De Capitani), the Court closed by rejecting also the argument raised by Parliament that making public documents of the trilogue would have taken away the nature of these meetings as a “space to think” . The Court unmistakably reminded Parliament that these meetings are essential parts of the legislative procedure and not “spaces to think” and as such must be subject to the required level of publicity (para 105, De Capitani).

  1. Conclusion: a more democratic EU?

The European Union does not enjoy today the best image in terms of transparency, accountability and democratic processes. Its institutions have been openly attacked from many different quarters for their lack of transparency and the bureaucratic nature of their procedures. Most of these attacks are populist fear-mongering that simply aims at finding a scapegoat to gain political traction, votes and, hence, power. However, as we have seen, some critiques of the EU structure cannot be simply dismissed as political nonsense and one of them is about the legislative process in the EU that affects the lives of almost 500 million people.

The De Capitani ruling throws a breath of fresh air to these institutions and, importantly, demonstrates that, while some institutions of the EU may be criticised for lack of transparency and obedience to the rule of law, there are institutions, notably the EU courts, that can address the problem within.

This ruling can still be subject to appeal before the Court of Justice of the EU. In the meantime and this notwithstanding, the crucial question is whether and how the ruling will be implemented. Will the Parliament, the Council, i.e. the Governments of the Member States, and the Commission open up to democratic scrutiny in legislative process?

The answer to this question will be vital for the EU to withstand any criticism that it does not obey the rule of law and democratic accountability. This is why this case is a turning point for the EU rule of law structure. Much of the legitimacy of the EU as a rule of law based supra-national organisation lies in what its institutions are going to do next. And we’d better be watching…

The Latest on Our Global War

by Deborah Pearlstein

The Trump Administration last week released its first “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations.” The report continues a practice initiated at the end of the Obama Administration and subsequently codified into requirement by Congress by which the Administration makes clear (among other things) where and under what legal authorities the United States is using military force, and how key domestic and international law rules apply to practices like targeting and detention. The publicly available Trump version of the report is far sparser than the Obama Administration report; this report seems to leave some essential points to the classified annex that accompanies it. Still, it remains highly useful as an official statement of the U.S. basis for using force (including, for example, attacks on Syrian government forces “to counter immediate threats” to partner forces of the United States there). A summary of the report’s contents is here.

There are several items of note in the report, not least of which is a troubling return to the bad old days in which the United States declines publicly to name which terrorist groups we consider ourselves at war with – identifying them here only in the classified appendix. (The full text of the report regarding the scope of the 2001 AUMF is as follows: “The classified annex contains more information on the application of the Authorization for Use of Military Force (2001 AUMF) to particular groups and individuals.”)

It is, however, among the report’s least surprising positions that should be seen as most significant: like its past two predecessors, the Trump Administration has embraced the notion that the United States is engaged in a singular, global non-international armed conflict against a shifting set of terrorist groups. This idea – which, after 17 years of U.S. efforts, has yet to be embraced by any other country in the world – continues to have a profound, and in many ways, warping effect on the law of armed conflict a/k/a international humanitarian law (IHL). Among many such effects: a growing group of legal scholars today urge that we reconsider the utility of the distinction (at the heart of IHL) between violence that counts as an “armed conflict” and violence that doesn’t. Critics raise a range of concerns, with the U.S. post-9/11 conflicts typically Exhibit A: the line dividing “armed conflict” and not is no longer clear or stable enough to provide meaningful guidance; current definitions may compromise humanitarian interests, prospects for criminal justice or both; perhaps most important, the “armed conflict” classification no longer reflects current moral, political, or strategic sensibilities about the role of lethal force in an age in which global threats have changed. I critiqued some of these claims to an extent in a review of Rosa Brooks’ book, How Everything Became War and the Military Became Everything: Tales from the Pentagon, out in AJIL late last year. I take them on in far greater detail in a new piece here (forthcoming Va. J. Int’l L. 2018). Among other things, I argue, it is not at all apparent that changing the terms on which we permit the use of lethal force will achieve the goals IHL’s current critics seem to seek.

But the Trump report – which, with little fanfare and in an otherwise rapidly changing world, embraces the legal construct that has framed and in many respects guided U.S. military operations for the better part of 20 years – underscores what should be an even more pressing concern. As the list of countries in which the U.S. is engaged in hostilities grows (Niger has joined the list since last report), and the purpose of U.S. intervention in some of these places blurs (the report reminds us that while ISIS has lost 98% of the territory it once held in Iraq and Syria, and will soon have lost 100%, we’re planning to keep bombing in Syria after that nonetheless), we’ve increasingly replaced a difficult conversation about the adequacy of international security policy with an easier (if ultimately misguided) debate about the adequacy of international security law. The problems to which “armed conflict” classification critics rightly attend – problems of interpretive uncertainty, law compliance, and social change – are familiar dilemmas in all legal systems. The problem of fighting a set of enemies we’re not willing publicly to name – that’s new.

Symposium: Wrestling with the Long Shadow of European Transplants of International Courts in the Third World

by James Gathii

[James Thuo Gathii is the Wing-Tat Lee Chair in International Law and Professor of Law at Loyola University Chicago School of Law.]

Transplanting International Courts is an important book. It invites us to expand and enrich our studies of international courts to those in the developing world. In doing so, Karen Alter and Laurence Helfer directly address what they call the “Europe is unique” thesis. This is the view that it is impossible to have effective international adjudication in “far more diverse and less hospitable environments” than Europe. (page 264) Yet, they do not overstate this point. After all, the Andean Tribunal of Justice has been effective in only one issue area, intellectual property rights. Unlike the bold, purposive and consequential decisions of the European Court of Justice, the decisions of the Andean Tribunal of Justice on intellectual property rights are more restrained, predicated on formalist reasoning and “highly repetitive, even formulaic.” (page 276) In so doing, the Andean Tribunal has avoided direct confrontation between the Tribunal and Andean governments whose political leaders have the last word on Andean law. (page 146)

So striking is the authority of the Andean Tribunal of Justice over intellectual property rights, Alter and Helfer tell us, that it has helped the Andean Community to hold-off American pharmaceutical companies that have sought more extensive intellectual property protections such as data exclusivity, a ban on ‘pipeline’ patents and second—use patents. In so doing, the Andean Tribunal of Justice has played a central role in preventing Andean states from defecting “from regional IP legislation and adopt strong IP protection standards.” (page 19) It has of course been helpful that Andean governments have for the most part had a common interest in a uniform policy for trademarks and patents. Further, Andean rules in these areas, unlike under other integration objectives, are detailed and precise. (pages 139-140). Andean domestic IP agencies and national courts benefitted from the Andean Tribunals rulings, which they accept to improve their decision-making and to insulate them from domestic politics. (page 127).

Alter and Helfer draw two key lessons from the Andean experience. First, that we should not assume that international courts will always seek to expansively construe their ‘authority and influence.’ Second, they argue that by “scrupulously adhering to their delegated powers,” international courts in ‘politically and legally inhospitable environments’ can help them survive long enough to gain constituencies who will make use of them. (page 16)

What then are the implications of these lessons in this rich study of the Andean Tribunal of Justice for the ‘effectiveness of international court more generally’? (page 18) Alter and Helfer argue that the Andean Tribunal’s experience may have more in common with newer international courts than with their European counterparts. (page 47) The Andean experience they argue, shows that “transplanting supranational laws and institutions is insufficient in itself to stimulate local demand for those laws and institutions.” (page 45) This is particularly so in developing country contexts where integration is shaped by significant turmoil in domestic politics.

I want to push the argument that Alter and Helfer make about the Andean Tribunal of Justice having more in common with international courts outside Europe than with those in Europe. In other words, there is an even more radical implication that emerges if Europe is dethroned as the point of reference for non-European international courts. Eurocentric analysis of international courts assumes that non-European international courts are reproductions of European courts with an adjustment here or there to ensure that they are a fit with local conditions. Such a view does not take seriously the agency of non-European actors. It assumes the role of these non-European actors is to simply adapt these European-style courts to their non-European contexts. From this mistaken view, when these non-European courts do not function like their European copies, they are declared failures.

I therefore read Alter and Helfer’s book as an invitation to scholars of non-European international courts not to treat their non-European contexts as merely contexts of reception, but as Diego Lopez Medina persuasively argues as contexts of production. From this perspective, we should not be surprised if what we see in these non-European international courts are, what from a Eurocentric perspective might look like unfaithful copies. Yet, to characterize these non-European courts and their decisions as misinterpretations or mis-readings, is to misunderstand them and their decisions. What seem as mis-readings and misinterpretations from a Eurocentric perspective, are rather the conscious and intentional outcomes of their non-European judges and litigants.

Let me give an example of what a Eurocentric perspective may regard as a misreading or misinterpretation by non-European international courts. This example comes from the East African Court of Justice in a case where the applicants sought to stop the government of Tanzania from building a road across the Serengeti, a UNESCO world heritage site. By way of a very brief background, although the East African Court of Justice was created to decide trade cases, it has redeployed itself to deciding human rights cases even though it does not have a treaty mandate to do so. Thus, when it was invited to decide a question relating to the environment, the government of Tanzania strenuously argued that it should not do so.

Once the First Instance Division decided it had jurisdiction, what it did next was striking. Basing its decision on a treaty provision that serves the equivalent role as the rule of systemic integration under Article 31(3)(c) of the Vienna Convention of the Law of Treaties, the Court concluded that East African Community treaties should not be interpreted in isolation of non-East African Community international environmental treaties. Thus, the Court brought on board the African Convention on Conservation of Nature and Natural Resources, the Rio Declaration, the Stockholm Declaration, and the U.N. Convention on Biodiversity. In so doing, the East African Court of Justice recognized environmental conservation must be seen in the broader economic, social and cultural context captured in this array of additional treaty regimes. This willingness to look beyond one regime is notable considering the sheer difficulty that other international judicial bodies such as those of the World Trade Organization, (WTO), have had in bringing non-WTO treaties as sources of WTO law. In so doing, the East African Court of Justice decided not to construe its jurisdictional remit narrowly as a specialist court within a single self-contained regime.

The Appellate Division of the East African Court of Justice confirmed that it was not improper for the First Instance Division to rely on non-East African Community treaties in its decision. A discussion of this case can quickly veer into considering whether the murky decision of the Appellate Division that did not lift the permanent injunction against Tanzania indicated that the Court feared backlash and non-compliance. That discussion has its utility. However, a choice to foreground a compliance analysis may come at the cost of pursuing the situational and localized circumstances that inform why such cases are brought to these courts in the first place.

For example, the environmentalists who brought the suit objecting to the building of the road through the Serengeti saw the Court as one venue in a multi-dimensional and multi-pronged strategy that involved other venues and pressure points. That multi-pronged strategy that has had its successes and challenges has continued long after the case ended. For these activists, the case was one part of a strategy of galvanizing an international alliance of conservationists to prevail upon the Tanzanian government. My point therefore is that studying non-European courts, and perhaps such courts elsewhere, requires us to put their users and their broader strategies at the center of our analysis.

Foregrounding compliance presupposes litigation is being pursued in these non-European courts because litigants see them as primary change agents. Such an assumption is based on the type of structural reform litigation in North America and Europe. It is not an assumption that those who use international courts in developing countries proceed from. As the Serengeti example noted above shows, whether or not the case is won, it becomes a focal point to galvanize, publicize and mobilize organizational support as well as fund-raising. When a case is lost, litigants use it to appeal to sympathetic individuals and groups by highlighting to the injustices they face. As such these non-European international courts are not independent actors isolated from other sites of political, social and legal contestation.

To conclude, I would emphasize the degree of unfaithful copies of European courts in the non-European world will vary. Further, as a recent study of the preference for non-litigious dispute settlement in the ASEAN investment context has persuasively argued, we should not assume that dispute settlement models that do not fit the European or western experience are flawed or indeed failures, but rather are independent and legitimate forms of legalization.

Alter and Helfer do in fact acknowledge that international courts in developing countries “deploy strategies that diverge from those of European tribunals in response to the distinctive legal and political contexts that these emerging courts face.” (page 274) I have argued that it is misleading to assume that cases filed in international courts in developing countries are primarily and narrowly targeted at legal reform, rather than to satisfy a range of other imperatives that activists are pursing. That is why Alter and Helfer’s conclusion that we “should look for evidence of judicial influence beyond case-specific compliance,” (page 277) is a very welcome one.

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by Kevin Jon Heller

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Does the ICJ Have Binding Jurisdiction Over the Guyana-Venezuela Border Controversy? Probably, But Maybe Not

by Julian Ku

Last month, the UN Secretary General António Guterres announced that he was referring the longstanding border dispute between Guyana and Venezuela to the International Court of Justice. This decision was made after a long period of mediation by various UN Secretaries-General dating back to 1990.  But as a ICJ jurisdiction nerd, I am curious what the basis of the Secretary-General’s power to refer the dispute to the ICJ is.

It is based on the 1966 Geneva Agreement between the United Kingdom (which was sovereign over Guyana at the time) and Venezuela. That agreement specified a long process of study via a joint commission and then noted that, if agreement on the commission’s report failed, the following process should be undertaken according to Article IV(2):

If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.

There is no doubt that this provision has been invoked, and the Secretary General’s announcement indicated that he deems “the International Court of Justice as the means to be used for the solution of the controversy.”  Article 33 of the UN Charter does list “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” as options for “pacific settlement of disputes.”  The ICJ would seem to qualify as a “judicial settlement.”

The problem is that it is not clear that Article IV of the Geneva Agreement automatically makes the ICJ’s decision legally binding. Neither Guyana nor Venezuela have accepted the compulsory jurisdiction of the ICJ, so there is no independent basis for jurisdiction.  The Geneva Agreement, I suppose, should be read as delegating to the UN Secretary-General the power to refer their dispute to “judicial settlement.” But it is not clear whether this broad delegation includes any and all forms of dispute settlement, or that those settlements would be binding.

The most natural reading, I concede, is that Venezuela is indeed bound to abide by any ICJ ruling in this case. But I wouldn’t be surprised if Venezuela tries to contest the jurisdiction of the ICJ, or the binding nature of any decision it issues.