“7. … The number of attacks off the coast of Somalia has steadily increased since 1991, and over the past two years has increased from 111 vessels attacked in 2008 to 217 vessels attacked in 2009. . .  There were 30 attacks during the first quarter of 2010. According to the United Nations Office on Drugs and Crime, the pirates operate from around 70 camps on beaches on the Somali coast, which is approximately 1,800 miles long. Their methods have become increasingly sophisticated, indicating greater planning, financing and organization. . . .

8. While the number of attacks remains high, increased naval patrols off the Horn of Africa and in the Gulf of Aden have effectively reduced the success rate of these attacks. In 2007, 63 per cent of attacks were successful; in 2008, 34 per cent were successful; in 2009, 21 per cent were successful; and the figure for 2010 is likely to be below 20 per cent.2 The decrease in success is attributable to the additional defensive measures put in place by merchant ships, their more cautious navigational routes, and effective naval operations. Nevertheless, as at 15 May 2010, some 450 mariners were being held hostage on vessels captured by pirates off the coast of Somalia. The involvement of naval vessels from more than 30 States represents one of the largest peacetime naval operations ever.”

In April of this year, the Security Council in resolution 1918 requested the Secretary-General to present a report exploring the options for prosecuting the persons responsible for piracy and armed robbery at sea off the coast of Somalia. In his report , the Secretary General has set out 7 options:

Option 1: The enhancement of United Nations assistance to build capacity of regional States to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia

Option 2: The establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation

Option 3: The establishment of a special chamber within the national jurisdiction of a State or States in the region, without United Nations participation

Option 4: The establishment of a special chamber within the national jurisdiction of a State or States in the region, with United Nations participation

Option 5: The establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with United Nations participation

Option 6: The establishment of an international tribunal on the basis of an agreement between a State in the region and the United Nations

Option 7: The establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the United Nations

The Secretary General has dismissed as a viable option the extension of the jurisdiction of existing international courts to include prosecution of piracy. So proposals to allow the International Tribunal for the Law of the Sea, the International Criminal Court or the African Court of Human Rights to prosecute the crime of piracy have not been accepted by the Secretary General. However, it may well be that the option of allowing the African Court of Human Rights to prosecute pirates returns to the fore when the African Union discusses the extension of the jurisdiction of that Court to include prosecution of international crimes. That discussion, which is gathering steam, is primarily about attempts to create a regional African Court to prosecute ICC crimes but I would not be surprised to see piracy included in the jurisdiction of that Court, if the attempt succeeds.

The Secretary General’s Option 1 is already being pursued with the opening of a special anti-piracy court in Kenya. If there is sufficient assistance to States and  domestic courts to undertake these prosecutions it is not quite clear to me why an international (or even a regional) tribunal is needed, especially given the cost of establishing such tribunals. In the Security Council debate about the report, it appears that the UK and France were also not keen on establishing a new international tribunal.   

“They emphasized that the UK expects the government of Kenya to stand by its obligations under the Rome Statute, and as a UN member state,” a statement from the British High Commission in Nairobi said.

Should this be regarded as practice relevant for the interpretation of the relevant parts of the Statute of the International Criminal Court (Rome Statute)? Art. 31(3)a of the Vienna Convention on the Law of Treaties provides that in the interpretation of a treaty the interpreter shall take into account “subsequent practice in the application of the treaty”. Is the act of European countries with regard to Kenya and Bashir subsequent practice indicating the lack of immunity of Bashir though he is a sitting head of State? I think it is but one would have to set against it the practice of African States which seems to be the opposite. For subsequent practice to count under Art. 31 it must “establish the agreement of the parties regarding [the treaty's] interpretation.”

“the Republic of Kenya has a clear obligation to cooperate with the Court in relation to the enforcement of such warrants of arrest, which stems both from the United Nations Security Council Resolution 1593(2005), whereby the United Nations Security Council “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the Court, and from article 87 of the Statute of the Court, to which the Republic of Kenya is a State Party” [The decision with respect to Chad has a similar paragraph except that, interestingly, that decision only states that Chad has an obligation to cooperate - with the word "clear" being omitted from the first line of the paragraph.]

ICC judges have to take a large share of the blame for this situation. Despite the assertion that Kenya has a clear obligation to arrest President Bashir, the matter is by no means clear. As is well known, a decent argument can be made that Bashir, being a serving head of State is immune from arrest in other States (see the article by Professor Paola Gaeta which makes this case). I have argued the opposite in an article I wrote last year (see this post which refers to both articles). Despite very reasonable doubts and despite the importance of the issue, ICC judges in the Appeals and Pre-trial Chamber have refused to address the immunity question and to clarify matters (see previous post).

Bashir’s visits to two African States must been seen against the background of the African Union’s (AU) continuing call for African States not to cooperate with the ICC with respect to the Bashir case. African States are disappointed that the UN Security Council has not taken action on the AU’s request for a deferral of the Bashir prosecution under Article 16 of the ICC Statute. In July of this year, the AU Assembly (of  heads of States), meeting in Kampala, Uganda, just weeks after the ICC Review Conference met there:

“REITERATE[D] its Decision that AU Member States shall not cooperate with the ICC in the arrest and surrender of President El-Bashir of The Sudan” (Assembly/AU/Dec. 296 (XV),see here, at p. 24)

This year’s AU decision was implicitly referring back to a decision taken in 2009 by the AU Assembly where it:

“DECIDES that in view of the fact that the request by the African Union has never been acted upon, the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan” Assembly/AU/Dec. 245 (XIII),here at p. 9)

It is ironic that although the 2009 decision was not supported by a number of African States the only one to formally enter a reservation to that decision (something rather rare in AU politics) was Chad. As it happened Chad was the first ICC party that Bashir visited.

But what is also interesting is that the AU’s call for non-cooperation bases itself on Bashir’s immunity. Thus the AU is asserting that a refusal to arrest Bashir would be in accordance with the ICC statute and in particular with Article 98. Before issuing decisions in which it asserts that there is a “clear”obligation to the contrary, the ICC ought to address the Article 98 issue.

There have been a number of national piracy trials taking place in Western States, notably in the US and the Netherlands. (I have written on piracy trials in Kenya elsewhere.) In the Netherlands a group of Somali pirates was sentenced to five years in prison. I have not seen either the judgement in Dutch or a summary of it in any other language yet. (If you have it, do let me know). In New York, the young Somali suspect pirate Abdiwali Abdiqadir Muse, sole survivor of the gang that attempted to hijack the Maersk Alabama, entered a guilty plea in a deal that removed piracy from the charges against him.

This leaves US v Said et al, the trial of 11 suspects before the US District Court in Norfolk, Virginia who were alleged to have (rather foolishly) attacked the naval vessel the USS Ashland, an amphibious landing craft transport, in April this year. The New York Times has helpful posted a copy of the interlocutory decision in this case which Justice Jackson struck out the charges of piracy against them. The decision finds that the alleged facts, which involve drawing alongside another vessel and starting a fire-fight with it, do not fall within the US statutory concept of “piracy as defined by the law of nations” (18 USC §1651). The reason for this is that the classic case, US v Smith 18 US 153 (1820), remains the governing authority and it held piracy to be “robbery at sea”. The alleged facts disclose no robbery, ergo no piracy.

The decision raises a host of issues. I will concentrate more here on points of methodology and issues of national prosecutions of international crimes. I have discussed the international law framework surrounding piracy in a previous post on this blog and will attempt not to repeat matters covered there. Nonetheless, I cannot resist the obvious quote from the Privy Council in Re Piracy Jure Gentium [1934] AC 586, which responded to the suggestion that robbery is a necessary ingredient of piracy by saying:

“[when confronted with the argument that] armed men, sailing the seas on board a vessel without any commission from any state, could attack and kill everybody on board another vessel … without committing the crime of piracy unless they stole, say, an article worth sixpence, … [one is] almost tempted to say that a little common sense is a valuable quality in the interpretation of international law.”

In fairness, the decision starts by noting the due process requirement that a criminal defendant should have “fair warning” of the existence of an offence (nullum crimen sine lege) and the prohibition on “novel” constructions of criminal statutes to capture acts not previously (or obviously) criminal. It also starts from the proposition that criminal statutes are to be strictly construed and their meaning is to be judged at the time of their enactment (here 1819).

The judgment gives short shrift to the prosecutor’s contention that: (1) “the definition of ‘piracy, defined by the law of nations’ includes and has always included any unauthorized violent acts or attacks committed on the high seas without lawful authority against another ship”; and (2) that this definition is not unconstitutionally vague.

US v Smith certainly did define piracy as “robbery upon the sea”, but it noted (in Justice Story’s epic 18-page footnote) the diversity of definitions then given by authorities and its facts concerned only robbery. That said, the prosecutor was unable to cite wider approaches to the definition in US law (other than in civil forfeiture cases using the broader term “piratical”).

Unsurprisingly, given the paucity of US sources, the prosecutor argued that the Court should have reference to current international law definitions. The government apparently cited International Maritime Bureau practice, Re Piracy Jure Gentium, the Geneva High Seas Convention 1958 and the UN Convention on the Law of the Sea 1982 (the latter two containing virtually the same definition). The defence case was that the current international law definition of piracy remained so unsettled that the only clear (and thus fair) standard to apply was the prior Supreme Court ruling in US v Smith.

The Court noted that according to Oppenhiem’s International Law (1905), Re Piracy Jure Gentium, and the relevant treaties piracy included any attack or act of unlawful violence. This, one would have thought a sufficient foundation to conclude there was presently a clear definition at international law.

The Court, however, took the view that there was no scholarly consensus as to whether there was a settled definition of piracy at customary international law. The decision quotes to this end a few US law journal articles and the magisterial (if idiosyncratic) work, Alfred P. Rubin’s The Law of Piracy (1988). There is indeed a received wisdom in some quarters that there has never been a clear customary international law definition of piracy and therefore there was nothing for the Geneva Convention 1958 to codify; any definition it offers must have been largely novel.

Like many received wisdoms, it fails under sustained analysis. In particular it gives no weight to the successive re-enactment of the 1958 definition in UNCLOS and other instruments. Both the Geneva Convention and UNCLOS have certainly come to be treated as codifications, even if the claim that there was a clear rule to codify in 1958 might seem shaky. As I’ve put it elsewhere (footnotes omitted):

“While [the treaty definition are] now generally accepted as customary law, there are worse and better arguments that this definition is not, historically, a codification. Worse arguments focus on national decisions of the 19th or early 20th century … These cannot be a reliable guide to the law a century later, not least because such cases notoriously conflated elements of national and international offences. Better arguments note the diverse, contradictory historical case law and scholarly commentary and ask how any coherent rule could emerge from such incoherent material. Both arguments fail to acknowledge that the successive re-enactment of this definition in treaties and regional instruments evidence States’ present acceptance of it as custom no matter how unconvincing this proposition might seem viewed over the longue durée.”

The position that the universally applicable legal framework dealing with piracy is reflected in UNCLOS has also been endorsed in Security Council Resolutions 1816, 1838, 1846, 1851, 1897 and 1918. If this isn’t evidence that that the treaty definition is now believed to be custom I’m not sure what is.

The Court also declines to look to international sources not only because of lack of clarity but because

“there is no single court that can bring order to various interpretations of UNCLOS [regarding piracy]. Rather, enforcement actions against pirates and criminal prosecutions of pirates are left to individual countries, many of which have different penalties for the crime of piracy ranging from three years to life in prison.”

Quibbles could be raised about these points, but they are all ultimately tangential. The Court ultimately held against looking to current international law sources because as they “evolve over time, defendants in the United States courts would be required to constantly guess whether their conduct is proscribed by § 1651.” A somewhat facetious response would suggest that the likelihood of any Somali having contemplated 18 USC §1651 is vanishingly remote. Obviously, though, it would certainly impair running a defence if your lawyers had no notice of what the definition of the offence was until the Court had determined it. There are also, perhaps, policy considerations in the propriety of courts receiving wholesale from custom criminal law standards in an age that expects such matters to be set out clearly and in advance, in written form, by elected legislatures (see, for example, the Australian case Nulyarimma v Thompson [1999] FCA 1192, paras 53 and 161; see also footnote 6 in Said v US).

It is hard to argue against the proposition that a defendant (or rather his lawyers) should have fair notice of the case they will have to plead and reasonably certain standards to guide them. The lesson for States wishing to prosecute pirates has to be to update your statutory definitions. This should not particularly difficult, but some legislative efforts look rather better than others.

In the UK s. 26(1), Merchant Shipping and Maritime Security Act 1997 (c. 28) states: “For the avoidance of doubt it is hereby declared that for the purposes of any proceedings before a court in the United Kingdom in respect of piracy, the provisions of the United Nations Convention on the Law of the Sea 1982 … shall be treated as constituting part of the law of nations”. That is, the UK crime remains piracy by law of nations, but judges are directed to construe that customary international law crime in line with UNCLOS. Whether this somewhat tortuous formula provides sufficient certainty for defence lawyers remains to be seen. Australia, rather more directly, simply incorporated the language of UNCLOS into ss. 51-53, Crimes Act 1914. There are reports of new laws in jurisdiction such as Spain and Japan. It might be time for the US to revisit its definition as well, especially in light of its treaty commitments under the Geneva Convention 1958.

Sahib Singh is a  member of the international litigation and arbitration group at Skadden and a visiting lecturer at the University of Vienna. This note was prepared before the Enron v. Argentina annulment decision became available at the beginning of August. A note on that case is forthcoming on EJIL: Talk!

On 29 June 2010, the ad hoc ICSID Annulment Committee annulled the initial award in Sempra Energy International v. Argentina, finding that the initial tribunal had exercised a manifest excess of powers. The decision is central to our understanding of necessity in international investment law, and particularly the relationship between necessity under Article XI of the Argentina-US BIT of 1991 and under customary international law. Unfortunately, the committee’s decision leaves much to be desired in terms of its interpretive methodology. The central critique of this post, is the degree of relevance the committee’s decision gives to necessity under customary international law when interpreting Article XI. It also questions the presumptive relevance of necessity under custom as an interpretive tool, when the latter can only apply if the investor does not hold substantive or procedural rights under the BIT.

Background

The investor-state arbitration awards concerning Argentina are, for the most part, centred on the Argentine financial crisis that hit the country in late 2001. As a consequence of the crisis, Argentina undertook specific regulatory measures which liquidated the value of foreign investments (the factual matrix is far more complex, but shall not be entered into here). In the spade of investment arbitrations brought by foreign investors, Argentina has argued that it is not liable under a range of BITs due to the defence of necessity. In regards to US investors, such arguments have fallen under both customary international law and Article XI of the Argentina-US BIT. The latter reads as follows:

‘This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of public order, the fulfilment of its obligations with respect to the maintenance or restoration of international peace and security, or the protection of its own essential security interests.’

Thus far six rulings have been made on the operation of necessity under Article XI and custom. Sempra Annulment is the latest. Three of the earlier decisions were against Argentina: CMS Gas Transmission (2005), Enron Corporation (2007) and Sempra Energy International (2007), through slightly varying but overarchingly common reasoning. A fourth, LG&E  (2006), found partially in favour of Argentina. Three days prior to the Sempra award being given to the claimant, an Annulment Committee strongly condemned the CMS Gas award (but did not annul); condemning the initial tribunal for its treatment of the defence of necessity. The CMS Annulment decision has marked the turning point in interpretive methodology used by tribunals. This was seen in the subsequent award in Continental Casualty (2008) and now the annulment in Sempra, which both found in favour of Argentina. However, discrepancies in reasoning still appear. Whilst significant, the Sempra annulment does contribute to such a problem.

Sempra v. Argentina

The committee in Sempra annulled the initial award due to the tribunal exercising a manifest excess of powers, in respect of its failure to apply Article XI of the BIT (para. 159, annulment). In doing so, it did not uphold annulment on the grounds of a manifest error of law or a failure to state reasons (as understood under Article 52 ICSID Convention). Given that the annulment was purely based on the application of legal rules and not on factual mischaracterisations or misapplication, it is not necessary to give a factual background. Understanding that Sempra Energy International claimed losses as a result of measures taken by Argentina during its financial crisis should suffice for the purposes of this post.

The notable findings of the committee are quoted below:

“176. This sequence of argument is illogical [necessity under custom and then under the Article XI] as the question whether a state of necessity justifies exoneration from state responsibility will become an issue only were liability is not already precluded under Article XI of the BIT. As a general rule, a treaty will take precedence over customary international law. …

188. According to Article 31(1) of VCLT, the first point of reference for interpretation of a BIT provision is the “ordinary meaning” of the words of the treaty themselves.

189. In the present case, where the BIT provides the relevant treaty language, it is necessary first and foremost to apply the provisions of the BIT. Indeed the Parties are in agreement that the BIT constitutes the applicable law. …

197. First … the Committee accepts, of course, that it may be appropriate to look at customary law as a guide to the interpretation of terms used in the BIT. It does not follow, however, that customary law (in casu, Article 25 ILC Articles) establishes a peremptory “definition of necessity and the conditions for its operations. …

199. It is apparent from this comparison [of the texts of Article 25 ILC Articles and Article XI BIT side-by-side] that Article 25 does not offer a guide to interpretation of the terms used in Article XI. The most that can be said is there are certain words of expressions are the same or similar.

200. More importantly, Article 25 is concerned with the invocation by a State Party of necessity “as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State”. Article 25 presupposes that an act has been committed that is incompatible with the State’s international obligations and is therefore “wrongful”. Article XI, on the other hand, provides that “This Treaty shall not preclude” certain measures so that, where Article XI applies, the takes of such measures is not incomptabile with the State international obligations and is not therefore “wrongful”. Article 25 and Article XI therefore deal with quite different situations. Article 25 cannot therefore be assumed to “define necessity and the conditions for its operation” for the purposes of interpreting Article XI, still less to do so as a mandatory norm of international law. …

203. … As noted above, Article 25, deals with a situation where a State Party is in breach by a plea of necessity. Article 25 sets out the restrictive conditions in which such a plea may be admitted. Article XI of the BIT, on the other hand, expressly provides that the BIT “shall not preclude the application by either Party of measures necessary” for certain reasons or purposes.”

Analysis

The decision makes several points of note. I would like to consider a few of these, in light of the previous jurisprudence dealing with the matter.

(1)   Article XI as the Primary Source of the Necessity Defence:

Previous arbitral tribunals (including Enron, CMS and Sempra) have conflated the relationship between necessity under customary international law and Article XI. Indeed, some such as the Sempra award (para. 388, award), prioritise the customary right over Article XI. The ILC correctly guards against applying the customary circumstance precluding wrongfulness, when necessity is incorporated into the primary rule (Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries, p. 84 (para. (21) under Article 25). Such an approach not only ignores that Article XI operates as a primary rule exception to liability under the BIT, but also that the customary standard, as a secondary rule, only kicks in should (a) there be a breach of a substantive BIT provision; and (b) the Article XI exception fails.

However, the Sempra annulment decision is now the third decision/award in a row that has confirmed the primary-secondary rule distinction (following CMS Annulment, para. 129 and Continental Casualty, para. 166).  Importantly, it has  identified Article XI as the applicable legal norm of primary importance when examining the necessity defence (Sempra annulment, para. 209). Such a stance has three distinct advantages as a adjudicatory method.

First, it is an approach which correctly identifies the ruling obligation which should govern the argument. Article XI is the only rule which operates as a functioning primary rule and it is one which operates in the specific treaty environment intended to govern the dispute.

Second, it allows the correct interpretive methodology to be used. Whilst the conflation method adopted by previous tribunals did not allow a dominant or primary rule to be interpreted, this approach allows a clear, concise and logical approach to interpretation. The conflation methodology essentially jumps straight to that envisaged by Article 31(3)(c) VCLT. As a matter of treaty interpretation this is clearly the incorrect approach, since the starting point has to be Article 31(1) VCLT and its tripartite test. Identifying the operative primary rule enables the logical application of Article 31 through its step-by-step analysis.

Third, the primary-secondary rule distinction, allows a tribunal to disable or attempt to circumvent a complicated lex specialis analysis. This is a complex argument, which I shall simplify. There are two traditional types of relationships which lex specialis may regulate: (a) where a particular rule may be considered an application of a general standard in a given circumstance; or (b) where the special rule is considered as modifying, overruling or setting aside the general rule (this was implicitly used in LG&E) (para. 88, ILC Fragmentation Report). The conflation approach of the Enron, CMS and Sempra awards, treated Article 25 ILC Articles as essentially a primary rule inconsistent with Article XI BIT. However, the Sempra annulment committee ensures that Article 25 is treated a secondary norm, avoiding conflict. Although lex specialis is sometimes applied where two rules point in the same direction without express conflict (para. 93, ILC Fragmentation Report), the committee has proceeded to initially use Article 25 as a background interpretive tool to Article XI (as in Oil Platforms, paras. 43-4) (para. 197, Sempra annulment). This background interpretive influence of the customary standard is better governed within the framework of Article 31(3)(c) and the principle of ‘systemic integration’. The primary-secondary rule distinction therefore avoids a complicated question and is able to bring the question within the framework of the traditional interpretive methods of the VCLT.

(2)   Interpretation of Article XI

Having identified Article XI as the decisive and operative rule, the Sempra committee’s attempt to define its scope and application is where the decision really comes into its own, departing significantly from previous decisions. The committee notes that “Articles 25 does not offer a guide to interpretation of the terms used in Article XI.” This statement departs from tribunal’s approach in Continental Casualty which noted that it will “focus on the analysis of Art. XI and the conditions of its application, referring to the customary rule on State of Necessity (as enshrined in Art. 25 of the ILC test) only insofar as the concept there used assist in the interpretation of Art. XI itself” (para. 168). The Sempra committee reasons that customary definition can offer no guidance to interpretation due to: (a) the terms of each rule, Articles XI and 25, significantly differ (para. 199); and (b) they operate on different planes – primary and secondary – “therefore deal with quite different situations” (para. 200).

If the committee was going to make such bold statements, avoidable under its review mandate, it should have adopted a far more rigorous methodology. There are a number of problems with the committee’s approach.

(a)    The starting point of Article 31(1) is explicitly acknowledged as beginning with “the ordinary meaning” of the rule. However, the committee failed to complement its analysis of the text of Article XI this with both the “context” and “object and purpose” of the provisions and the treaty.

(b)   The failure to address these elements is significant given that: (i) these are the primary factors differentiating the application of the customary standard; (ii) some case law has presumed that the object and purpose the BIT is to apply in economic difficulties and therefore a restrictive interpretation of Article XI has followed (Enron, para. 331).

(c)    Eventual resort to Article 31(3)(c), other relevant and applicable rules of international law, may not lead to the categorical approach adopted by the Sempra committee. The two grounds stated above (in paras. 199 and 200) for Article 25’s lack of interpretive value seem to be rooted in its “relevance”. It is hard to adopt the conclusion that Article 25 offers no value whatsoever. The fact that there exists the primary-secondary rule distinction, does not preclude custom’s interpretive value, but rather goes towards the normative weight provided to the latter. Given the differences in, (a) text and (b) purpose, between the two provisions, the weight afforded is bound to be fairly low but not entirely absent. As it stands, the current approach taken by the Sempra committee nullifies the purpose of Article 31(3)(c) and essentially allows Article XI to operate by itself and without recourse to other rules of international law. More so, given that the committee does not identify other rules of international law which may assist in interpreting quite a vague provision.

The import of identifying other rules which can inform the content of Article XI, and specifically notions of “public order”, “maintenance or restoration of international peace and security” and “essential security interests”, cannot be over-emphasised. Several tribunals have noted that the initial convoluted approach is rooted in their inability to give content to the provisions of Article XI. This however, is the subject of another enquiry. For those interested, Jürgen Kuntz makes a valiant effort in his recent ICLQ article (abstract only).

I now turn to the final issue which remains unaddressed by the vast majority of arbitral decisions dealing with necessity: the ambiguity in defining the nature of investor’s right and the ability of State’s to use the customary necessity defence.

(3)   Defining the nature of the Investor’s rights and Necessity.

In her impressive recent AJIL article, Anthea Roberts tangentially hits upon the ‘old’ debate of the nature of investor’s rights under the BIT (pp. 184-5). She uses Zach Douglas’ classification of options in defining such rights:

“(1) investment treaties grant substantive and procedural rights to the treaty parties only, but investors are permitted for the sake of convenience to enforce their states’ substantive rights;

(2) investment treaties grant substantive rights to the treaty parties only, but investors are granted the procedural right to enforce their states’ substantive rights; and

(3) investment treaties grant substantive and procedural rights to investors, giving investors a procedural right to enforce their own substantive rights.”

Attempt at classification has arisen in only a few cases (concerning countermeasures and waivers). However, classification of the nature of the investor’s right has an impact on two matters regarding necessity: (a) the ability for a state to invoke the customary defence (as opposed to whether it would be successful if the substantive provisions were provided); (b) the normative weight in interpretation that tribunals can and should given to the customary norm when considering provisions such as Article XI Argentina-US BIT.

Under Robert’s scenarios (1) and (2), necessity can be invoked by the Respondent state as a circumstance precluding the wrongfulness of a BIT breach against another state. Under scenario (3) however, necessity under Article 25 cannot apply against the investor. Any breach of the BIT would be a breach against the investor. The customary defence operates to preclude wrongfulness against a breach by a State and cannot preclude wrongfulness to a third party non-state actor; the investor. The latter approach is similar to that followed in BG Group v. Argentina (para. 408) and the rational and effects of Robert’s scenario (1) were adopted in National Grid v. Argentina (para. 211). The analysis in these awards are far from explicit, but have been extrapolated by the author. Indeed, the most recent tribunal in AWG Group v. Argentina did not address the question at all, presuming the prima facie applicability of the customary rule.

Tribunals have been able to circumvent this underlying normative issue since the stringent conditions of the customary standard have not and cannot be met under investor-state arbitration (no matter the opposite and incorrect conclusion reached in LG&E, para. 257). However, Robert’s scenario (3) and its underlying rational does have a normative effect on arbitrations under the Argentina-US BIT. First, if Robert’s scenario (3) and the interpretive rational in Sempra is used then in addition to custom operating on a different normative plane (secondary, not primary), it also does not operate as the same subject plan and should therefore benefit from even less normative weight in the interpretation process of Article XI. Second, if the primary-secondary rules methodology advocated by recent tribunals is advanced, custom based necessity only kicks in once (a) a substantive breach of the BIT is shown; and (b) a defence under Article XI fails. However, scenario (3) prima facie disables the application of the customary right. Argentina would not be able to take recourse to Article 25 if an Article XI defence fails.

Conclusion

 In conclusion, the Sempra committee is to be credited for ingraining the primary-secondary rule distinction which clarifies the dominant and applicable rule. However, in its treatment of the residual role of Article 25 in the interpretation of Article XI, the committee is unnecessarily stringent to the exclusion of the customary standard. This is not aided by a lack of thoroughness in interpretive methodology. Finally, the operation of the necessity defence in investor-state arbitration suffers from a foundational problem, which pervades into many other areas of the regime: the lack of clarification on the nature of the investor’s rights.

The views expressed here do not necessarily reflect those of Skadden

Francesco Messineo will join Kent Law School (Canterbury) as a Lecturer in Law in October 2010. He is currently a PhD candidate at the University of Cambridge.  Between 2004 and 2006, he was the Refugee Coordinator of the Italian Section of Amnesty International. His most recent publications include an aritcle in the Journal of International Criminal Justice  on the Abu Omar Case

Doves and hawks?

Judgments delivered by the Fourth Criminal Section of the Tribunal of Milan, in Italy, do not generally make compelling reading for admirers of John Le Carré or Ian Fleming. Nevertheless, the one delivered in February 2010 by Dr Oscar Magi is a remarkable exception, for it contains a graphically detailed account of how the CIA and the Italian secret services conducted their ‘anti-terrorism’ operations in 2003 – down to the mobile phone numbers they used, the Internet map services they employed, and the type of private jets they chartered.[1] Above all, however, a rather chaotic state of affairs emerges from all this. Those CIA agents whose job was to abduct people in the ‘extraordinary renditions’ program probably believed that they were welcome to act as they pleased in Italy, and that they would be allowed to do so irrespective of Italian law.[2] Judge Magi strongly affirmed that they were not – and long prison sentences were imposed on many of them. One does not very often see CIA agents convicted by the courts of a friendly state. This may explain why the CIA committed one of its worst strategic mistakes in the last decade and overlooked both the constitutional independence of the Italian judicial system and the strong institutional tensions between different branches of the Italian government. In practice, because all the convicted Americans were tried in absentia, this simply means that they will not be able to travel to Europe for quite some time – or will have to do so under different identities, which presumably should not be an insurmountable problem for them. Yet, this case is quite remarkable because it is the only ‘renditions’ trial that reached the verdict stage. As such, it had quite some impact in the multifaceted relationship between Italy and the United States (see here and here for the ‘concerns’ and ‘disappointment’ of the State Department). In addition, it highlighted the untenability of some aspects of the fight against terrorism: not surprisingly, Human Rights Watch declared that this case ‘put the war on terror on trial’. Because it would be inappropriate for an international lawyer to comment on the former aspects (Italo-American relationships are best left to those who know more about them), I will focus on the latter issues – why renditions are untenable as a matter of law and policy. To do so, I will start by describing the evident conflict of power arising from the outset in this particular case.

At the beginning of 2003, the Special Operations Division of the Italian Police dealing with terrorism, known as DIGOS, was conducting a complex investigation on the activities of Mr Osama Mustafa Hassan Nasr, aka Abu Omar. These efforts were irreparably disrupted by the sudden disappearance of the suspect in the early afternoon of Monday, 17 February 2003. He had been abducted by a group of CIA agents aided by an Italian military police officer (a carabiniere) and later flown from the US base in Aviano, in North-East Italy, first to Germany and then to Cairo, in Egypt, where he was probably tortured. The latter transfer had occurred on the same Executive Gulfstream private jet which the CIA rented on many occasions to carry out renditions.[3] What had started as an investigation on Abu Omar’s activities in support of terrorism morphed into an investigation on his abduction. The DIGOS soon realized that both the CIA and the Italian Military Secret Service (SISMI) were somewhat involved. In other words, SISMI and CIA agents became the principal suspects in an investigation that a branch of the Italian government (DIGOS) was conducting upon another branch of the same government (the SISMI) and a ‘friendly’ foreign secret service (CIA). It should come at no surprise that there were various attempts to divert the investigation: two SISMI agents and one journalist were eventually convicted for aiding and abetting the crime of abduction after it had been committed. Nonetheless, DIGOS and the Milan magistrates presiding over the investigation succeeded in preparing the case and bringing it to trial, amidst the half a dozen complex ‘conflict of powers’ proceedings which were brought before the Italian Constitutional court and which I have more fully described elsewhere.

However, seeing the DIGOS and the Milan magistrates as the ‘doves’ standing on one side while SISMI and the CIA were the ‘hawks’ on the other side would be most inappropriate. Just like the Special Branch in the UK and other analogous institutions, DIGOS has had a long and at times quite controversial history – the Italian Ministry of the Interior candidly admits that its historical origins have to be traced back to (the slow Republican rejection of the methods of) Mussolini’s secret political police, the OVRA. The Milan magistrates supervising DIGOS’s investigation had many years of experience in anti-subversive and anti-terrorism investigations, including during the difficult times of the Seventies and the Eighties – one of them had even trained in the United States at some point (see here). In sum, no suggestion could credibly be made that those investigating the SISMI and the CIA for the abduction of Abu Omar had different purposes in terms of fighting terrorism than the SISMI and the CIA: if Abu Omar ever returned to Italy, he would immediately be arrested and tried on a standing request of the same magistrates based on DIGOS investigations. The conflict was about methods and the rule of law, not the motives.

And the rule of law is precisely what concerns us here. On 1 February 2010, Judge Magi, sitting as the Tribunal of Milan in monocratic (i.e. one-judge) composition, delivered his judgment convicting 23 American citizens, mostly CIA agents, of the crime of kidnapping Abu Omar, sentencing the chief of CIA in Milan to 8 years in prison and all the others to 5 years in prison. Judge Magi also sentenced two SISMI (Italian military secret service) agents to 3 years in prison each for trying to divert the subsequent investigation. At the same time, however, he declared that the court could not proceed against three other American citizens, including the head of CIA in Italy, on grounds of diplomatic immunity. Nor could the conduct of five Italian SISMI officers, including its head, be adjudicated upon, because a ‘state secret’ existed creating a procedural bar to further prosecution.

The question before Judge Magi was framed in terms of individual criminal responsibility, yet his judgment also shed light on some issues which are relevant to state responsibility. Indeed, when analyzing a case of extraordinary rendition such as that of Abu Omar, at least two separate legal issues arise. One is whether the United States, Italy, and Egypt are responsible as states for an internationally wrongful act. This would entail that the responsible state(s) would be under an obligation to make reparation for any injury caused to other states and to avoid repeating the same conduct. The second issue is whether renditions are ‘crimes’ under domestic or international law. This would entail that those CIA agents carrying out the rendition and those other persons who helped them should be tried before a court as individuals, unless there are any procedural bars to prosecution such as immunity. I will briefly consider these two issues in turn.

State secrecy and Italian complicity

I will start with state responsibility. As the Articles on State Responsibility (ASR) explain, an internationally wrongful act of a state is an act or omission that is both attributable to that state (i.e. committed, directed or under the effective control of one of its organs or agents) and that breaches an obligation of that state under international law (Article 2). Thus, to establish whether the United States is responsible for an internationally wrongful act in the Abu Omar case, we must satisfy both the ‘attribution’ and the ‘obligation’ requirement. We can assume that CIA agents were acting in their capacity as US organs, so the attribution of their acts to the US is quite straightforward under Article 4 ASR. As to the existence of one or more international obligations breached by ‘renditions’, we should consider what rules of international law the abduction and transfer of Abu Omar may have breached. There are many of those. Depending on what view one takes on the vexed question of the applicability of international human rights law (IHRL) outside the territory of the obliged state, certain IHRL obligations may apply (see here; note that the law of armed conflict is irrelevant in the Abu Omar’s case, although it may be relevant to other renditions: see here). Furthermore, whenever US agents abduct someone in the territory of another state, they would be violating the latter state’s sovereignty unless it consented or acquiesced to such exercise of power on its soil – it is a well-established rule of international law that states cannot go about arresting people in other states.[4] In other words, a complex web of international legal obligations may be breached by renditions generally and by the Abu Omar one specifically, and the US are most likely under an obligation to stop this practice and make appropriate reparation under Articles 29 to 31 ASR.

In this context, it would also be necessary to establish whether Italy consented to Abu Omar’s rendition. If Italy did not consent, its sovereignty was violated by the US. If it consented, Italy might be deemed co‑responsible for any international wrongful act of the US under IHRL (Article 16 ASR). Such cooperation would also be likely to constitute a breach of some of Italy’s obligations under the European Convention on Human Rights. But we cannot know for sure: here is where Judge Magi complains of a ‘black hole’ in his power to ascertain the facts.[5] The many ‘conflicts of power’ cases before the Constitutional Court which I mentioned above had led to the final decision by the Constitutional Court declaring that a ‘state secret’ existed covering the relationship between SISMI and the CIA, including those aspects of that relationship which concerned the Abu Omar abduction. This very broad definition was criticized but respected by Judge Magi:

Following the delimitation of the area of secrecy operated by the Constitutional Court, and the subsequent claims by the persons under trial, a sort of ‘black curtain’ has been drawn over all the activities of SISMI agents in relations to the fact/crime ‘abduction of Abu Omar’, so that its evaluation is absolutely forbidden … [in what constitutes an] area of undecidability. [6]

Therefore, it is impossible to (judicially) know whether SISMI in fact cooperated with the CIA, and if such cooperation was the result of a policy of the Italian government. The head of SISMI at the time has always maintained that he was personally opposed to the rendition program, but that he could not prove this for reasons of state secrecy. Because of how the Constitutional Court interpreted the question of secrecy, Judge Magi had to suspend the proceedings against him and other SISMI agents, because the secrecy constituted a procedural bar to their prosecution. This renders it very difficult to comment on the responsibility of Italy, as a state, under international law. Judge Magi hints at the fact that ‘the hypothesis of an active involvement [of SISMI agents] in the abduction’ was justified at the start of the trial because of the evidence which had now become unusable.[7] I will leave it to other international lawyers to establish how far some evidence which is inadmissible before a domestic court on grounds of state secrets could be used in an international context to establish the responsibility of a state under international law. My guess is that it probably could (Articles 3 and 32 ASR seem to go in that direction), but that no such international adjudication is likely to ever take place anyway. We thus have to content ourselves with the statement that the Abu Omar judgment seems to implicitly suggest that Italy may be an accomplice of the United States, rather than a victim of a violation of sovereignty by CIA agents.

Criminal responsibility and immunity from prosecution

Now I will move on to the issue of individual criminal responsibility. Quite apart from being internationally wrongful acts of one or more states, renditions may also constitute international or domestic crimes. However, neither the International Criminal Court, nor other International Criminal Tribunals have any jurisdiction over facts involving rendition, so any prosecution would be in a domestic court. International law, however, obliges states to criminalize and prosecute certain acts. These are what some call ‘international crimes of domestic implementation’ (as opposed to ‘pure’ international crimes); they may arise from both customary international law and treaty law. I have developed this question elsewhere (SSRN version here) in relation to the obligations of states to criminalize and prosecute torture incidental to renditions under the 1984 UN Convention Against Torture (CAT). In my view, this remains the international criminal law provision which is most relevant to renditions, because extraordinary renditions will almost invariably constitute acts of complicity in torture (namely, the torture occurring at destination). States parties to the CAT are under an obligation to prosecute or extradite any persons involved in renditions, as well as being under a more general obligation to proscribe torture and complicity in torture (or their equivalents) in their statute books. However, the question remains whether renditions are crimes as such, rather than in connection with their torturous consequences. A more direct route of prosecution will come into existence when the 2006 International Convention for the Protection of All Persons from Enforced Disappearance enters into force. It will oblige its member states to criminalize and prosecute

“the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” (Article 2).

In the meantime, ordinary domestic criminal law has provided an imperfect yet usable framework for the prosecution of extraordinary renditions. It is indeed possible to find the agents involved in renditions guilty of the common crime of abduction – as the Tribunal did in Milan.

This, however, leaves open the question of immunity. As Dapo Akande noted in a detailed post on Ejil:Talk!, there are three types of immunity which come into question here: diplomatic immunity, consular immunity, and state immunity (immunity ratione materiae). Many – Akande included – somewhat expected Judge Magi to adopt a narrow view of immunity because of those Italian precedents such as Ferrini which led to the dispute between Germany and Italy before the International Court of Justice. But there was no mention or application of Ferrini in Abu Omar. This is because Ferrini was about (the lack of) immunity for ‘international crimes’ – or, rather, what the Court of Cassation thought of as international crimes but are in fact ‘serious breaches of peremptory obligations’ in the context of state, not individual, responsibility. As I said elsewhere, one of the main problems with the Abu Omar case is that it focused on the domestic side of the rendition, and left aside the (complicity with) the (alleged) torture in Egypt. In other words, what was on trial before Judge Magi was not an international crime, but the ordinary domestic crime of abduction. Ferrini could not be relevant to that.

Nonetheless, this might be yet another case where the Italian doctrine on immunity will need scrutiny. The concept of state immunity (ratione materiae) as such was not even invoked before Judge Magi, and was not considered in the judgment. What was elaborated upon was, instead, the difference between consular and diplomatic immunity. According to Judge Magi’s interpretation, while diplomats have ‘absolute jurisdictional immunity (both criminal and civil or administrative) for the acts they carried out while in the exercise of their functions (immunity which remains even after the end of the diplomatic mission to which they belonged)’[8], consular agents do not enjoy immunity for grave crimes (Article 41 of the Vienna Convention on Consular Relations of 1963), but only for lesser crimes committed in the exercise of their function. Therefore, the two consular agents involved in the abduction of Abu Omar were not deemed to be immune from prosecution; at the same time, the three CIA agents who were accredited to the Rome Embassy, including the CIA head in Italy, did benefit from diplomatic immunity. I am not entirely convinced by Judge Magi’s reading of the difference between diplomatic and consular immunity. In particular, I am not sure that Article 41 of the Vienna Convention does quite what Judge Magi thinks it does: as Akande said in his post, I think the question here is that it would be hard to qualify the rendition as occurring in the exercise of ‘consular’ functions.

On the other hand, Judge Magi is adamant that the abduction was an official act that the CIA agents who were also diplomats committed in the exercise of their functions. As the judge said, ‘the activity of “extraordinary renditions” committed by CIA agents, albeit being a crime in Italy, may and should be understood within the functional ambit of Article 3 of the Vienna Convention [on Diplomatic Relations] (“Protecting in the receiving State the interests of the sending State”)’.[9] The problem with this finding is that, if the rendition were indeed an official act of the CIA agents involved, the other type of immunity (immunity ratione materiae) would unquestionably become an issue for those who are not already protected by diplomatic immunity – namely all the other convicted Americans, including the consuls. In other words, Judge Magi’s own finding that the ‘rendition’ was a policy of the US government adopted in the interest of the US directly leads to the application of state immunity under international law (and renders questions of consular immunity redundant). Of course, one of the exceptions mentioned by Akande in his post could in theory be applied to ‘extraordinary renditions’. For instance, an exception may succeed if one qualifies the rendition of Abu Omar as a crime under international law (complicity in torture), regardless of how it is then defined under the domestic proceedings concerned. In other words, on the international plane Italy could argue that it has not violated state immunity because it has convicted American citizens for what constituted a crime under international law.

Untidy dystopias

These glimpses of post-9/11 anti-terrorism machinery are not particularly edifying, whatever one’s views are on global efforts to prevent terrorism. The sheer sloppiness of the whole ‘Abu Omar operation’ on 17 February 2003 is at least as striking as the grave human rights implications. CIA agents were leaving such obvious traces that identifying, prosecuting, and sentencing them was possible for ordinary magistrates in an ordinary Italian city – perhaps a case study for the next Langley Handbook on Deniability of Covert Operations. At the same time, the cooperation between different branches of the Italian government was so low that Italian anti-terrorism police officers ended up wiretapping the Italian secret services – something which, although admirable from a checks‑and‑balances perspective, is indeed worthy of a spy story. Furthermore, and quite ironically, the whole ‘state secret’ proceedings led to a judgment which is more lenient with the Italians than with the Americans. Italian ‘state secrets’ protected the former, but not the latter, from prosecution – were it not such an obviously dangerous idea, it would be tempting to suggest that an International Convention for the Protection of Common Secrets should be established. The real solution to terrorism is more rule of law, not less. The tension between those conducting regular criminal investigations (such as the DIGOS and Milan magistrates) and those trying to adopt other means (such as SISMI and the CIA) is both healthy and inevitable. The lesson from the Abu Omar case is that if the latter really wish to get away with using illegal means to prevent terrorism, they should at least get their act together.

 [With many thanks to Marko Milanović and Brian Sloan. This piece is cross posted at at E-IR  http://www.e-ir.info/?p=4761]

[1]               Adler Monica Courtney and ots., Tribunale Ordinario di Milano in composizione monocratica, Sezione IV Penale [Fourth Criminal Section of Milan Tribunal sitting in ‘monocratic’ (i.e. one-judge) composition], n. 12428/09, verdict of 4 November 2009, judgment delivered by Dr. Oscar Magi, registered on 1 February 2010, unreported, on file with author [Abu Omar judgment hereinafter].

[2]               The term ‘extraordinary renditions’ is a euphemism which leaves much to be desired, and there are many definitions of what it means exactly. Suffice it to say here that they usually consist in the abduction of someone from a certain country, their transfer to a detention facility in another country, their interrogation and often their torture, all without any charge or trial by independent judicial authorities. In September 2006, President George W. Bush explained that renditions belonged to the so-called ‘CIA Program’, a series of anti‑terrorism measures adopted by subsequent US administrations at least since 1995. These measures were often modified but never altogether repealed, not even by the Obama administration (see § 5(e) of Executive Order n. 13491).

[3]               Abu Omar judgment, at p. II-15.

[4]               See e.g. F.A. Mann, ‘Reflections on the Prosecution of Persons Abducted in Breach of International Law’, in Y. Dinstein and M. Tabory (eds), International law at a time of perplexity: essays in honour of Shabtai Rosenne (Dordrecht; London: M. Nijhoff, 1989) 407-421.

[5]               Abu Omar judgment, at pp. II-94 ff.

[6]               Abu Omar judgment, at p. II-97.

[7]               Abu Omar judgment, at p. II-100.

[8]               Abu Omar judgment, at p. II-90.

[9]               Abu Omar judgment, at p. II-93.

On 11 March 2010, the United Kingdom informed the Secretary-General that it wished that its ratification of the Rome Statute of the International Criminal Court ‘be extended to the following territories for whose international relations the United Kingdom is responsible: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, Ascension and Tristan da Cunha, Sovereign Base Areas of Akrotiri and Dhekelia, Turks and Caicos Islands’. The declaration added that the United Kingdom ‘considers the extension of the aforesaid Statute … to take effect from the date of deposit of this notification…’

The Argentine government then quite quickly objected to the UK declaration, because of their long-standing dispute over the Falklands/Malvinas. This has been the Argentine practice for quite some time (see, e..g, the similar UK and Argentine declarations with regard to the ICCPR (at the very end of the page)). But more interesting, as Bill notes, is the issue of the territorial scope of UK obligations:

Did the United Kingdom leave anything out of its declaration? What about Diego Garcia, which is part of the Chagos Archipelago in the British Indian Ocean Territory. After expelling the inhabitants of the islands, the British then essentially handed over the base to the United States, which uses it as a kind of a fixed aircraft carrier. Is the Diego Garcia military base subject to the Rome Statute because it forms part of the ‘territory’ of the United Kingdom? Or does the recent declaration attempt to confirm that it is not subject to the jurisdiction of the Court, because the United Kingdom has not made a declaration to that effect?
Aside from jurisdiction over territory, there is also the issue of responsibility for arrest and other cooperation obligations under the Rome Statute. By its declaration, was the United Kingdom suggesting that it was not previously responsible for cooperation with the Court with respect to the territories listed in the declaration?

The formulation of the UK’s declaration certainly indicated that hitherto it considered itself bound by the Rome Statute only with respect to its metropolitan territory. But was this indeed the case? Or did the UK have all of the Rome Statute obligations conditioned by territory with regard to, say, Bermuda, from the moment of ratification? And what of the territorial jurisdiction of the ICC?

Up until the end of its empire after the Second World War the UK had a rather stringent policy of including so-called colonial clauses in the multilateral treaties to which it was a party. Thus, for example, it had the negotiating power to have such clauses included in the ECHR and the Genocide Convention. The UK was motivated in this partially by a policy desire to avoid assuming burdensome obligations for territories in which it did not want to apply them, and partially by a constitutional convention that it needed the assent of its dependencies for the extension of treaties to them. The UK’s efforts were resisted, however, in respect of other treaties, such as the ICCPR. With regard to those treaties, the UK employed the practice of filing a declaration that would specify the territories to which the the treaty would apply – as with the ICCPR, and now the Rome Statute.

(For general background on all of this (and some fantastic scholarship), see Brian Simpson’s Human Rights and the End of Empire (OUP, 2004), as well as L. Moor and AWB Simpson, ‘Ghosts of Colonialism in the European Convention on Human Rights’, (2006) 76 BYBIL 121.)

Now, the big question is whether such declarations have any effect – and in particular, whether the UK’s declaration with regard to the Rome Statute has such an effect. What these declarations try to do is to avoid the application of Article 29 VCLT, which reads ‘unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.’

As explained by the ILC in its Draft Articles on the Law of Treaties, the ‘entire territory’ bit encompasses all territories over which a state has title, and not just its metropolitan territory. Art. 29 thus creates a rebuttable presumption that a treaty applies to all of the territories that belong to a state party.

Now, Art. 29 doesn’t explicitly deal with declarations of territorial scope as those routinely used by the UK. The Draft Articles do say, however, that:

One Government [I imagine the UK, but I haven't checked] proposed that a second paragraph should be added to the article providing specifically that a State, which is composed of distinct autonomous parts, should have the right to declare to which of the constituent parts of the State a treaty is to apply. Under this proposal the declaration was not to be considered a reservation but a limitation of the consent to certain parts only of the State. The Commission was of the opinion that such a provision, however formulated, might raise as many problems as it would solve. It further considered that the words “unless a different intention appears from the treaty or is otherwise established” in the text now proposed give the necessary flexibility to the rule to cover all legitimate requirements in regard to the application of treaties to territory.

So what are then we to do with the UK’s declarations? First, it does not regard them as reservations, but as ‘limitations on its consent’ only to parts of its territory. But isn’t a reservation precisely a limitation on state consent? A mere interpretative declaration cannot as such have direct effect on state obligations, as this territorial declaration purports to. Second, Art. 120 of the Rome Statute explicitly forbids any reservations. Third, whatever their nature, they might reflect the UK’s intention, but they certainly do not reflect that of the other parties, which is the Art. 29 VCLT criterion. Finally, and quite oddly, unless I am mistaken from my quick skim of the UN treaty collection, the UK made the ICC declaration only some 12 years after it ratified the Statute. How can this affect the consent that it had already given? It is only if a general rule existed to the effect that states can vary the territorial scope of their obligations via declarations – but as we have seen the ILC was quite explicitly opposed to such a rule, and the instability it potentially brings seems very much undesirable, and unsupported by state practice.

Then again, Denmark also made a similar declaration with respect to the Faroe Islands and Greenland, which it later withdrew, as did the Netherlands. No state objected to such declarations in principle, which might be taken as a inference that they are permissible, and would thus serve to rebut the Art. 29 VCLT presumption. This is, in short, quite a vexing little problem – and one that I doubt the Court will ever have the opportunity to resolve.

I was asked by the organizers of the 2010 ILA Conference in the Hague to put up this notice, and do so with pleasure. The Conference starts in a couple of days, and I’m sure it’ll be a wonderful event.

The 15^th – 20^th of August 2010 marks a historic moment for the Netherlands Society of International Law as it brings together over 600 lawyers from all over the world to discuss how international law and institutions can and should contribute to solving global problems.

The event – the 74^th Biennial Conference of the International Law Association – is being hosted in the Hague by the Netherlands Society of International Law as part of the events marking the 100^th year of its existence. The wide range of topics to be discussed at the panels of the conference include the international accountability of government lawyers for advice that  leads their governments to violate international law, the tensions between peace/reconciliation and justice before the International Criminal Court (ICC), the International Court of Justice Advisory Opinion in the Kosovo Case, current international law on piracy and the argument that Somali pirates are freedom fighters, the role of international law in global economic governance and financial supervision after the financial crisis, the ICC as either a court of last resort or simply a means for guaranteeing domestic proceedings are exactly like the ICC’s,  the enforceability or otherwise of the Millennium Development Goals and the role of international law in realizing those goals, the interplay between international human rights and national law in domestic litigation (plaintiffs’ and defendant’s perspectives), access to justice at the domestic level and the tension between local/national and international ideas of justice, the necessity or otherwise of an Organisation for the Prohibition of Biological Weapons (OPBW), the Sudan Abyei Arbitration as an example of international law arbitration as conflict prevention, Islamic finance and in general the role of religion in the making and practicing of law, forum based limitations to parties’ freedom of choice of applicable law in arbitration and a-national or transnational law as a possible solution thereto, and the relationship between the Responsibility to Protect (R2P) and the use or non-use of force in international law.

Alongside the panel discussions, there will be Open Working Sessions of the Committees and Study Groups of the ILA at which the various Committees and Study Groups will discuss the reports of their research on a variety of contemporary issues of international law. Committees which will be discussing their work include the Committees on Feminism and International Law, Islamic Law and International Law, Space Law, Non State Actors, Reparation for Victims of Armed Conflict, International Securities Regulation, International Law on Sustainable Development, Rights of Indigenous People, Legal Principles Relating to Climate Change, the Teaching of International Law,  International Civil Litigation and the interests of the public, Cultural Heritage Law, International Commercial Arbitration, International Criminal Court, International Family Law, International Human Rights Law, International Law on Biotechnology, International Protection of Consumers, International Securities Regulation, International Trade Law, Outer Continental Shelf, Recognition/Non-recognition in International Law and Responsibility of International Organizations. Most of the Committee and Study Group reports are already available on the ILA website and can be downloaded via http://www.ila-hq.org/en/committees/draft-committee-reports-the-hague-2010.cfm.

Updates on the conference will be available on the conference blog which can be accessed from the website of the conference (http://www.ila2010.org). Reports and resolutions adopted at the conference will be available later.

Conference details

Venue:  The Hague University of Applied Sciences (Haagsche Hoge School),

Johanna Westerdijkplein 75, 2521 EN, The Hague

Formal Opening: Monday, 16^th August at 9 a.m.

Professor Jan Klabbers is Professor of International Law at the University of Helsinki, and Director of the Academy of Finland Centre of Excellence in Global Governance Research. His previous post introducing the book by Klabbers, Peters & Ulfstein The Constitutionalization of International Law   is available here

So far, the blogging concerning The Constitutionalization of International Law  The  has been fairly sedate. Of course, it is summertime; of course, there was a soccer tournament to focus on; of course, the ICJ’s opinion on Kosovo occupies the international legal community; and perhaps there is a certain idleness and lethargy to be associated with constitutionalism these days, as Jeff Dunoff and Joel Trachtman merrily suggest. But it may also be the case that the approach we espouse gives rise to some unease on the part of readers and therewith elicits few responses, for our approach is difficult to pigeonhole. The kind and generous comments published on EJIL: Talk! suggest as much: they display a certain puzzlement at what it is we aim to do, and some seem to have difficulties in identifying the genre we work in.

That is not surprising, as our genre is indeed uncommon. We do not aim to engage in descriptive sociology – ours is not an enterprise to establish that constitutionalism exists, in some real sense and as a matter of positive international law. Nor do we engage in idealist normative theory pur sang: we do not aim to suggest that constitutionalism is, as a way of organizing the globe, superior to alternatives. Likewise, ours is not a conceptual study in any strict sense of the term: we do not aim to establish the (or, more modestly, a) concept of global constitutional law. We do not aspire to make an argument de lege ferenda about constitutionalization.  And emphatically, we never set out to study the causes of constitutionalism, no matter how much Dunoff and Trachtman might have expected us to.

What we engage in, instead, is a different genre, perhaps most closely related to conceptualism (without, it is hoped, lapsing into Begriffsjurisprudenz) but nonetheless distinct. As the book makes clear – or should have made clear – we ask ourselves what a constitutional world order could look like. This comes with at least two elements which may cause some confusion. First, in light of the circumstance that there are many versions of constitutionalism circulating, it meant that we had to adopt some form of constitutionalism as the one we were interested in exploring. We could have opted for a Stalinist version, but felt such would be silly, as few people would willingly adopt such a version and, more to the point, because it is not the sort of constitutionalism that international lawyers have come to talk about over the last decades.  By the same token, while the realist school of global politics may claim that a Westphalian order is a constitutional order (in that it can be said to constitute global order), we nonetheless did not see the need to explore this version, again largely because it is not what occupies the invisible college of international lawyers. Hence, we took as our starting point the sort of constitutionalism usually invoked by international lawyers, from Verdross to Tomuschat, and from Dupuy to De Wet. This is quite obviously a liberal, western, elitist version of constitutionalism, but for our purposes that is hardly relevant. Or rather, more accurately, it is relevant in the sense that this liberal version is what seems to dominate the debates; hence, there is merit in exploring the possible ramifications of precisely this version, in much the same way as people with an interest in space activities will focus on the US or Russia rather than, say, Austria or Tanzania.

Second, we needed to give some hands and feet to this version of constitutionalism which, in much of the literature, tends to remain remarkably abstract. A brief look at some western liberal constitutions persuaded us that such constitutions tend to come these days with provisions on the institutions of governance and their competences, on law-making, on the judiciary, on membership of the community, and on democracy: as a result, these issues were what we set out to explore, without however claiming that this would exhaust the matter. Moreover though, and relating to the earlier point as well, the very talk of constitutionalism comes with a certain baggage. Constitutionalism is, in one sense at least, a vocabulary with all sorts of connotations, and we felt we could ignore this only at our peril. It is for this reason that we connect constitutionalism to legitimacy: not so much because we feel that the two go hand in hand empirically, or should go hand in hand normatively, but because those who speak the language of constitutionalism tend to mention legitimacy in the same breath: those who invoke constitutionalism tend to suggest that constitutionalism is itself legitimate, and that it helps legitimate governance. It is on this ground that we claim that “a constitutional world order will have to be a legitimate order” (at 43). This does not so much express a normative preference (although we would hardly prefer an illegitimate order) but merely finishes the thought, so to speak – any other construction, however sensible in its own right it may be, would miss the very discussion we aim to contribute to.

That is not to say that there is not some overlap between our genre, such as it is, and other genres. Dan Bodansky is surely correct when claiming that we do not always keep ours neatly separate from others, and that sometimes empirical or normative statements creep in. Correct as this critique is, though, one may wonder whether there are any viable alternatives. What would be the point of studying something that exists only in the minds of international lawyers but with no basis in reality – any reality? In this sense, the conceptual, the normative and the empirical are notoriously difficult, perhaps impossible, to disentangle without lapsing into sterile discussions. Mathematics may work in such a manner, but in the social sciences and humanities this is not an option. John Searle perhaps put it best when denying the comprehensiveness of social constructions: “… there has to be something for the construction to be constructed out of.”[1] In our context, it would be surprising, and not a little arrogant, to claim that all the talk about constitutionalization has no basis in any reality, and is without normative merit.

While our commentators have focused on our discussions on democracy and the role of the judiciary in particular, they have paid remarkably little attention to the chapter on law-making, with the exception of Dunoff and Trachtman claiming that the ‘presumptive law’ endorsed in that chapter would ‘flip’ the classic Lotus position.  This, however, is not really the case: the pertinent chapter underlines that consent remains a serious requirement, and remains the basis of obligation. It is just that in a constitutional order, the expressions of consent can often be presumed, perhaps only to be rebutted. But the very possibility of rebuttal leaves the relevance of consent intact. Instead of turning Lotus on its head, the chapter aims to adapt it to constitutionalist thought, in full realization of the continued relevance of the Lotus doctrine.[2]

Some of the commentators suggest that ours is an uncritical embrace of liberal, top-down constitutionalism. This, however, is mistaken. As explained above, to some extent descriptive, normative and conceptual aspects cannot be kept neatly compartmentalized. More importantly though, there is no inherent tension in writing about constitutionalization, even sympathetically, while simultaneously being critical.[3] At the heart of our book is the idea of taking the ball and running with it: the ball is not of our making, and the trajectory of the run is more or less pre-determined: we set out to explore what constitutionalization could entail, and which direction it could go, if taken seriously. This does not imply a full embrace of constitutionalization; instead, it takes an ongoing discussion and explores its ramifications. We understand that in a scholarly community where human rights lawyers tend to be pro-human rights, and trade lawyers pro-trade, keeping a normative distance from the object of research is perhaps less common than it should be. However, the implicit suggestion that keeping some distance is so uncommon as to invite criticism is decidedly troubling.

[1] See John R. Searle, The Construction of Social Reality (London: Penguin, 1995), at 190.

[2] Ironically, as the author of the law-making chapter as well as quite a few works on the concept of treaty and soft law, I am often accused of being rather too faithful to the Lotus doctrine.

[3] And just for the record (and again not without irony), I am sometimes deemed overly critical of constitutionalization, as reflected in earlier writings. See, e.g., Jan Klabbers, ‘Constitutionalism Lite’, (2004) 1 International Organizations Law Review, 31-58.