Public International Law (PIL) - B3 - Rechten - UL - Aantekeningen hoor- en werkcolleges

Deze aantekeningen zijn gebaseerd op het vak Public International Law (PIL) in 2015-2016.

Topic 1: International Law as a System

Lecture Notes + readings

Take away note: ‘international law is not only just a set of global values reflected in rules and principles; it is also a concrete framework for regulation’.

The scope of public international law includes international humanitarian law, international criminal law, protection of the environment and the law of sea and human rights law. International law cannot compare with national legal systems (which have executive, legislature and judicial branches that are highly developed in a completely different structure). International law as a system has not yet reached the same level of maturity as domestic legal systems.

The international community is regulated by, inter alia, the United Nations Security Council, the General Assembly and the Geneva Human Rights Council, however the system is still incomplete. There is no world government. Suffice to say, international law as a system manifests itself in two principles.

First, international law is a kind of normative framework for the management of international relations and global legal order. This system is partly laid down in the United Nations (UN) Charter, other UN treaties, UN Convention on the Law of the Sea, the Paris Agreement on Climate Change, etc. Second, there is a prohibition of going to war and using force. Accordingly, fundamental principles of international law include the full settlement of disputes, respect for human rights, state sovereignty, state immunity, Security Council sanctions etc.

Sources of International Law

The sources of international law can be found in article 38(1) of the International Court of Justice (ICJ) Statute. Under this article, the primary sources of international law are treaties, international custom and the general principles of international law. The subsidiary sources are judicial decisions and teachings of the most highly qualified publicists. Other sources of international law can be found in decisions by international organisations, soft law and unilateral acts and declarations.

Treaties are a particularly important source of international law. Article 2(1)(a) of the Vienna Convention on the Law of Treaties states that a 'treaty' means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. It a State does not approve the treaty or has not ratified it – the State will not be bound. However, the State may still be bound by customary international law.

In order to establish customary international law, there must be proof of state practice and opinio juris. State Practice must be virtually uniform (consistent), extensive and representative (general), for a longer period (constant). Opinio juris establishes State opinion. It can come in the form of declarations / objections by States, decisions by international organizations or silence (acquiescence).

An entity or thing must have international legal personality in order to belong to the circle of international law. States are the original subjects of international law and derive their international personality from the Montevideo Convention and constitutive and/or declarative recognition.

Types of Jurisdiction

Jurisdiction can be prescriptive, enforcement or adjudicative. Prescriptive jurisdiction is where States prescribe behavior. Enforcement jurisdiction is where States have the ability to uphold the law and to enforce the law in their own territory. Adjudicative jurisdiction is where States act as adjudicator or provide for the judiciary system.

Principles of Jurisdiction

The territoriality principle is the least controversial basis of jurisdiction. States have jurisdiction over all events on their territory. This type of jurisdiction can be subjective or objective. A state will have subjective territorial jurisdiction if the illegal act is launched from its territory. That is, the criminal activity commences within its territory but is completed in another state. At least one element (the launching) occurs in its territory. By contrast, a state will have objective territorial jurisdiction if the illegal act occurs in its territory. At least one element (for example, the killing) occurs in its territory.

The nationality principle is active and passive. Active nationality gives States jurisdiction over all its nationals. Passive nationality gives States jurisdiction over crimes committed against its nationals. The Victim State will have the power to prosecute other States for the commission of such crimes.

While controversial, the universality principle exists. This principle gives States jurisdiction over crimes of concern to the international community (i.e. genocide, war crimes, crimes against humanity and torture).

Immunities

State immunities stem from the principle of sovereign equality of all states. One State should not adjudicate the behaviour of another. International organisations have functional immunities, which they can enjoy as are necessary for the fulfilment of its purposes (see article 105 of the UN Charter). State officials have immunity – which prevents States from exercising control over the public acts of other States. Immunity ratione personae is the immunity attaching to an office or status. This type of personal immunity is limited to heads of state/foreign ministries. This immunity only persists for the period in which the indivudial is in office. Immunity ratione materiae is the immunity attaching to official acts. This type of functional immunity is based on the facts that an individual shall not be held liable for acts that are those of the state.

An exception for state official immunity exists in article 27 of the ICC Statute. Irrespective of the position an individual is occupying – an individual can never engage in the conduct of war crime or crimes against humanity. This is, in effect, a type of universal jurisdiction – but only applies to the States that have ratified the Rome Statute. Recently, it has been questioned whether the President of Sudan can be prosecuted under article 27. This is controversial because Sudan is not party to the Rome Statute. However, the argument of the prosecution is that the President is responsible for committing crimes against humanity, and whether or not Sudan is party to the Rome Statute – the prosecution should have the power to prosecute under universal jurisdiction.

State Responsibility

The International Law Commissions (ILC’s) 2001 Draft Articles on State Responsibility are not legally binding but are reflective of customary international law. Article 2 of the ILC’s Draft Articles on State Responsibility provides that a State will commit an internationally wrongful when conduct consisting of an action or omission: is attributable to the State under international law; and constitutes a breach of an international obligation of the State.

The ILC is composed of eminently qualified publicists including many governmental legal advisors. Therefore, under Article 38(1)(d) the ICJ can consider the ILC’s Draft Articles on State Responsibility as a subsidiary source of international law.

The Articles themselves do not codify customary international law – but they have been progressively adopted into State practice and this Court held at para 407 in the Genocide Case that it is settled jurisprudence that State Responsibility will be determined pursuant to the rule of customary international law set out in Article 8 of the Draft Articles.

The legal consequences of State Responsibility may take the form of restitution (article 35 of the Drafts Articles); compensation (article 36 of the Draft Articles); or satisfaction (article 37 of the Draft Articles).

Peaceful settlement of Disputes

Article 2(3) of the UN Charter provides that member-States must settle disputes with peaceful means. The Security Council can call upon parties to settle their disputes by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means as provided by article 33 of the UN Charter.

There are two types of cases that can be heard by the ICJ. The first type is contentious cases (article 68, ICJ Statute). The jurisdiction of the court contentious cases is based on the consent of the parties to the dispute. Examples include the North Sea Continental Shelf Case, the Nicaragua Case, and the Pulp Mills Case. The second type is advisory proceedings (article 96, ICJ Statute). The ICJ is empowered to give advisory opinions on legal questions to the UN General Assembly and the Security Council. Sixteen UN organs and agencies may request advisory opinions on legal questions arising within the scope of their activities. The court will only refuse a request for an advisory opinion if there are ‘compelling reasons’. Examples include the Namibia Opinion, The Nuclear Weapons Opinion and the Israeli Wall Opinion.

Topic 2: Human Rights

Lecture Notes + Readings

What are human rights?

Human rights come in the form of civil, political, social or economic rights that people claim to be entitled to. Human rights have formed a phenomenon of normative principles based on customary standards of humane treatment. People can claim to have human rights against a certain practice or behavior. More often than not, though, the point of many human rights is to challenge the law. Therefore, they usually rise above the law rather than stem from the law.

Who are the holders of such rights and who the duty bearers?

The holders of human rights are individuals; they are classical subjects of human rights law. Peoples have the right to self-determination. Minorities possess rights relating to culture, religion and language. The duty bearers are States (vertical application) or multinational corporations and/or armed groups (horizontal application).

What are the different mechanisms for monitoring State compliance with human rights on the international level?

The first mechanism for monitoring State compliance with human rights on an international level are independent experts from UN treaty bodies, such as the Human Rights Committee; Committee on Economic, Social and Cultural Rights; Committee of the Elimination of all Forma of Racial Discrimination; and the Committee Against Torture. Human rights are implemented through mechanisms contained in Human Rights treaties such as the periodic reporting duty (art 40 ICCPR; art 19 CAT); though rare, inter-state complaints (art 33 ECHR; art 41 ICCPR; art 21 CAT); individual Complaints (ECtHR; UN HRC; art 34 ECHR, art 22 CAT, optional protocols to ICCPR and ICESC); and independent Inquiries (art 20 CAT).

Evolution of International Human Rights Law

International human rights law was first recognised by the middle class people in creating the Magna Carta in 1216.This was based on freedom, equality and solidarity. These three principles remain at the core of human rights today. The second development of international human rights law was the French Declaration of the Rights of Man and Citizen in 1789. Human rights were not so much an issue during the period of the League of Nations. This period dealt with relations between States (especially in Europe). Not dissimilarly, there are only few references to human rights in the UN Charter. For instance, article 1(3) enshrines a principle to achieve international cooperation in promoting and encouraging respect for human rights and for fundamental freedoms for all. The UN Security Council can issue resolutions that formulate widely accepted principles but which only constitute soft law. A substantial contribution to the beginning of human rights was the Human Rights Commission chaired by the widow of Chris Roosevelt. It was the intention of Roosevelt to create an International Bill or Human Rights and thereafter the 1948 Universal Declaration of Human Rights was enacted. Then came the 1996 International Covenant on Economic, Social and Cultural Rights (ICESCR) (which was the first time racial equality was recognised) and the 1996 International Covenant on Civil and Political Rights (ICCPR).

Three generations of human rights

Civil and political rights are referred to in the 1996 ICCPR. They include the right to life, the right not to be tortured, the freedom of religion etc. Economic, Social and Cultural rights are social security rights that are referred to in the 1996 ICESCR. They include the freedom of association and the right to education, food and clothing etc. Collective Rights are the rights of groups rather than individuals. They include the right to self-determination and encompass many rights of minority groups. Reference to collective rights is made in the African Charter on Human and Peoples Rights (1981).

The main UN treaties are the International Convention on the Elimination on all Forms of Racial Discrimination (1965); the ICCPR and the ICESCR (1996); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); the Convention on the Elimination of all Forms of Discrimination against Women (1981); and the Convention on the Rights of the Child (1989). Treaties with regional protection include the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); the American Convention on Human Rights (1969) and the African Charter on Human and Peoples’ Rights (1981).

The main UN treaty bodies are the Human Rights Committee; the Committee on Economic, Social and Cultural Rights; the Committee on the Elimination of All Forms of Racial Discrimination and the Committee Against Torture. The UN bodies involved in human rights protection are the General Assembly, the Security Council, ECOSOC, the UN Secretary-General, the International Court of Justice, the Office of the High Commissioner for Human Rights and the Human Rights Council. The UN Human Rights Council is a subsidiary organ of the UNGA. It has a possibility of special sessions in case of urgency; it does not have any permanent members (two consecutive terms at best)l it conducts universal periodic review and has the right to speak for NGOs.

Netherlands participation with human rights

The Netherlands has neither signed, nor ratified, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Further, the Netherlands has signed but has not yet ratified the International Convention on the Rights of Persons with Disabilities.

In 2009, the Human Rights Committee (HRC) in the Netherlands recognised the enactment of the Equal Treatment in Employment Act of 2004 (age discrimination); the Temporary Domestic Exclusion Order Act of 2009 (domestic violence); the Everyone Takes Part Action Programme of 2007 (ethnic and racial discrimination in access to employment); the National Plan to Combat Trafficking of 2004 and the Human Trafficking Task Force of 2008. The negative aspects of the 2009 review of the HRC recognised that there as lack of equal access to labour market for women; not much participation of women in political decision-making positions; the right to life was interfered with in respect of euthanasia law. It also recognised there is no right to choose ones residence for low-income families and no right to contact with counsel in respect of police interrogation.

In 2010, the CESCR made a report with the positive results that economic, social and cultural rights were incorporated in the Constitution of Curacao and St. Maarten; education became compulsory for children, irrespective of legal status and there was an improvement of work-life balance. The negative results of this report was that there was unequal enjoyment of economic, social and cultural rights in four constituent parts of the Netherlands; insufficient awareness of economic, social and cultural rights by the general public; no protection to discrimination in all its forms in national law; discrimination of minorities, persons with disabilities, migrant workers and women; an increased scale of domestic violence; detention of asylum seekers and unaccompanied minors.

The Universal Periodic Review of the Netherlands in 2012 brought about some positive results. A Child Ombudsperson was created; the Convention on Protection from Enforced Disappearances was ratified and the National Human Rights Institution was established. The negative results in 2012 were the indications of discrimination of minorities (racial and religious); lack of protection for migrants and asylum seekers; lack of human rights in the area of human trafficking and child sex tourism; and gender role stereotypes (in particular, the pay gap between men and women persisted).

The CAT report in 2013 brought about positive results. It highlighted the Netherlands ratification to optional protocol to the CRC and an extension mandate National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children in 2012. The negative results were that there is hardly no access to lawyers during police interrogation; sparse procedural safeguards and fair review of applications; no medical examinations of asylum seekers in case of trauma, torture and ill treatment; detention of asylum seekers and grounds for rejecting residence permit; pre-trial detention; forced internment in mental health care and use of tasers.

CERD Conclusions on Black Pete Issue

In 2015, while the CERD committee understood that the tradition of Sinterklaas and Zwarte Piet (Black Pete) is enjoyed by many persons in Dutch society, it noted with concern that the character of Black Pete is sometimes portrayed in a manner that could reflect negative stereotypes of people of African descent and is experienced by many people of African descent as a vestige of slavery, which is injurious to the dignity and self-esteem of children and adults of African descent. CERD recommended that the Netherlands should actively promote the elimination of those features of the character of Black Pete which reflect negative stereotypes. Further, the Netherlands should find a reasonable balance, such as a different portrayal of Black Pete, and ensure respect for the human dignity and human rights of all inhabitants of the State Party. The Netherlands responded to the CERD recommendations by stating (at para 6 of its response) that a new National Action Plan will be presented to Parliament in 2015 to introduce more effective instruments to prevent and combat all forms of discrimination.

Workgroup Notes + Seminar Notes

Question 1

Compare Article 2 of the ICCPR with Article 2 of the ICESCR. How are the obligations of States under these conventions formulated? Discuss the similarities and differences.

Article 2(1) of the ICCPR contains first generation rights. States must refrain from breaching obligations in the Covenant to guarantee rights therein. This is a negative obligation. By contrast, article 2(1) of the ICESCR contains a positive obligation for States to recognise the rights in the Covenant. A further difference between art 2(1) in the two Covenants is that in the ICCPR, States must ‘respect and ensure’ which is an obligation of result, whereas in art 2(1) of the ICESCR States must ‘take steps’ which is an obligation of conduct.

Notably, there are some provisions in the ICCPR that require States to take action and some provisions in the ICESCR that require States to refrain from taking action. As a general proposition, however, the obligations in the former are negative and in the latter are positive. Both Covenants require states to prevent discrimination by different means.

Art 2(3) of the ICCPR mandates that an effective remedy be granted upon breach of rights in the Covenant. Art 2(3) of the ICESCR recognises that it is difficult for developing countries to do everything to achieve an optimal standard of everything. Depending on economic status of country – there may be differences as regards to extent of the remedy given. Economic factors are decisive for how far States are able to provide protection of the 2^nd generation rights.

Question 2

Compare identical Articles 1 of the ICCPR and the ICESCR with the other rights protected under these conventions. Who are the addressees of these rights?

Article 1 of both the ICCPR and the ICESCR contain the right of all ‘peoples’ to self-determination. The right-holders of this right must be ‘a people’. In comparison to other articles in the ICCPR, individuals are the right holders. For example, art 6 makes reference to ‘every human being’, art 7 refers to ‘no one’ and art 27 refers to ‘persons belonging to minorities’.

The right to self-determination arose in the context of decolonization. People wanted to free themselves from colonial powers. They wanted to be able to self determine their entire being – not only on an internal level – but also on an external basis.

The ICJ upheld in the following decisions that the right of a people to internal self-determination is ‘irreproachable’ and erga omnes: East Timor (Portugal v. Australia.) (1995) ICJ Rep 90, 102 [29]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004) ICJ Rep 136, 181[115]; 199[155]; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion) (1970) ICJ Rep 16, 31- 32 [52] – [53]; Western Sahara, (Advisory Opinion) (1975) ICJ Rep 12, 31-33 [54] – [59].

The internal right entitles ‘a people’ to freely choose its own political, economic and social system. It is controversial whether the right to external self-determination exists so as to constitute secession. Secession can either result in the creation of a new State (upon satisfaction of the objective Montevideo criteria and the subjective recognition criteria) or association with another pre-existing State. For the controversy surrounding the issue of external self-determination, see Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) (2010) ICJ Rep 403 (where the ICJ considered whether the unilateral declaration of independence (UDI) was in accordance with International Law; and not whether a paramounted in the right to secede. But where nevertheless, the ICJ referred to the Quebec Case at paragraph 55, as standing for the proposition that secession is not prohibited under international law – but only permitted in extreme circumstances: Reference by the Governor in Council concerning Certain Questions relating to the Secession of Quebec from Canada [1998] 2 SCR 217, 142.

This right to self-determination only arises in ‘a people’. They must have a common social tradition or racial identity – such as linguistic unity, ideological affinity or common economic life. Importantly, ‘a people’ are not minorities as referred to in art 27 of the ICCPR. Both types of group believe they are members of a particular group – but only ‘a people’ in article 1 recognise they are linked to a certain territory. Individuals cannot rely on the right to self-determination.

Question 3

a) What are the four principal human rights monitoring mechanisms discussed in the chapter by Rodley on the role and impact of treaty bodies?

The four main principal human rights monitoring mechanisms discussed in the chapter by Rodley on the ‘role and impact of treaty bodies’ are the Periodic Reporting Procedure (article 40(1) ICCPR); Individual Complaints Procedure (article 1 Optional Protocol to the ICCPR, art 34 ECHR, art 22 CAT); Inter-State Complaints Procedure (article 41(1) ICCPR, art 33 ECHR, art 21 CAT) and the Independent Inquiry (article 20(1) UN CAT). All human rights treaties provide for all four mechanisms.

In terms of comparing the legal effect of the complaint procedure under the ICCPR (article 41) and the ECHR (article 33), the ICCPR decisions are not legally binding whereas the decisions of the ECHR are legally binding.

b) Elaborate upon the function and legal status of General Comments

If the relevant treaty so provides, general comments are authoritative interpretations of treaty obligations by a semi-judicial body. They are not legally binding. However, they are persuasive. For example, the ICJ has referred to general comments in its decisions.

The Human Rights Committee (HRC) are permitted to transmit general comments under article 40(4) of the ICCPR. The HRC makes general comments to give guidance to states parties on the content of their obligations under the Covenant. The comments are of a general nature and lay down the expectations of the HRC, which assists states parties to prepare for their reports on compliance with human rights. The general comments commonly take the form of the HRC’s interpretations of the law. For example, Article 2 paragraph 1 of the Covenant, has been interpreted by the HRC in General Comment 31 of 2004 as conferring on all States a legal interest in the compliance by other States with their covenant obligations. Therefore, decisions made under the ICCPR in relation to the meaning given to the terms ‘cruel, inhuman or degrading treatment’ are persuasive. As such, the general comments do not only assist states with knowing the nature of their obligations, but they also assist lawyers when interpreting the content of the rights under the ICCPR.

Once adopted, the HRC will invoke general comments as authority in its ‘constructive dialogue’ with states when considering their reports, in its conclusions arising from the dialogue and in its observations in individual complaints.

Topic 3: The Use of Force: Jus Ad Bellum

Lecture Notes + Readings

The Use of Force from WWI - 2016

In earlier times, States were permitted to use force to defend ones territory, to re-vindicate property or to inflict punishment on another State. The just war theory (during the 12^th and 17^th centuries) attempted to restrict this use of force by making it conditional on morality. It formulated conditions for war to be waged. The just war tradition is based on legitimacy – not legality.

The League of Nations was founded after WWI, to promote international cooperation and achieve international peace and security. Moreover, the League of Nations did not try to abolish war – but to limit resort to the use of force by undertaking to preserve the territorial integrity of States. Under the League, States agreed to submit their disputes to arbitration or judicial settlement or to inquiry by the League’s council. Important was the idea of common interest for peace reflected in article 16. Aggressor States were to be subjected to economic sanctions. However, there was no centralised system for the use of force and the League of Nations disintegrated. Germany, Italy, the US and Japan did not participate.

Learning from the failures of the League of Nations, the UN Charter founders gathered in San Fransico to draft the UN Charter. This created a centralised system for the use of force – based on the idea that States could use force against each other. The primary focus on this system was peace and security. The reason for establishing the UN was to prevent future wars. The Member States agreed that armed force shall not be used save for in the common interest. The UN Charter thus created three pillars: (1) the prohibition of the use of force (article 2(4)); (2) the obligation to settle disputes in a peaceful manner (article 2(3)); and (3) the centralised system of security (articles 24 and 25). The Security Council is the principal body of the United Nations and it only acts on behalf of the United Nations (article 24(1) of the UN Charter). Under article 45, the Security Council has authority to make decisions that are binding on all member states (which take the form of resolutions).

The General Assembly is comprised of 50 member states whereas the Security Council is limited to 15 member states. 5 of these members are permanent members (France, Russia, the USA, the UK and China). The other 10 members are elected every 2 years. The non-permanent seats are allocated on the basis of geographical spread. Its primary responsibility is maintenance of international peace and security. In order for the Security Council to make a decision, there needs to be 9 votes, including all votes of the 5 permanent members. The permanent members have a veto right to block decisions made by the Security Council.

The system of collective security is based on the prohibition for States to use force against each other and for states to settle disputes peacefully. The obligation only applies in interstate relations as the whole idea of the prohibition of the use of force is to protect the territorial integrity of other States.

Two exceptions to the prohibition of the use of force

First Exception: authorisation by the Security Council

The Security Council may authorise force under CH VII of the Charter. Under art 39 of the UN Charter, the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression, paving the way for measures to be taken under Arts 40, 41 and 42 of the UN Charter. If the Security Council is of the view that non-forcible measures under article 41 will not be practical to use (such as an economic or diplomatic sanction; asset freexers) – then the Security Council can immediately make the decision to order forcible measures under article 42 (such as ordering a peacekeeping operation). Under article 43, the Security Council authorises the coalition of the willing to take action.

In relation to determining what constitutes a threat to the peace, breach of the peace or act of aggression – an internal conflict may qualify as long as there is some kind of external impact on the international community.

Second Exception: self-defence under article 51 of the UN Charter

The only instance where a State would not be required to wait until the Security Council takes action is when that State has the right to self-defence under article 51 of the UN Charter. According to the ICJ’s formulation of conditions for the use of force in self-defence - a State may only exercise the right to self-defence if: (1) it is the victim of an armed attack; (2) the attack is attributable to a State; and (3) the use of force was necessary and proportionate to the attack. Article 51 of the UN Charter contains a third requirement that a state must report to the UNSC immediately that it exercised its right to self-defence. This requirement is not essential, however, if the right to self-defence is invoked under customary international law rather than pursuant to the UN Charter (as in the Nicaragua case because of US’s reservations regarding multilateral treaties).

An armed attack?

The ICJ in Nicaragua (paras 51, 191) An armed attack includes regular armed force and ‘the sending of armed bands, groups, irregulars or mercenaries which carry out acts of armed force against another state’. It suffices if the operation, because of its scale and effects, would be classified as an armed attack rather than a frontier incident had it been carried out by regular forces. It does not include provision of weapons/logistical/other support. In other words, an action will only qualify as an armed attack if it makes use of the gravest forms of the use of force.

The attack must be launched from the territory of another state. Therefore, if there is a non-international armed conflict – and a non-state armed group launches an attack towards the governmental authorities from within the same state – this will not give rise to the right of self-defence in the government. This is why the ICJ in the Wall Opinion held that Israel did not have the right of self-defence against Palestine – because the attacks launched from Palestine were still launched from within a territory under the control of Israel.

Attributable to a State?

The armed attack by the non-state armed group must be attributable to a State. This requires satisfaction of the effective control test – which requires proof that the State specifically directed the non-state armed group to commit the exact attack that was committed (see Nicaragua case 64 [115]; 113 [217]; 129 [277]). This is a high threshold to prove. (see also: Wall Opinion, para 139, DRC Case, para 160, 196).

Necessary and proportionate measures?

The ICJ in the Oil Platforms case: the responding use of force must be necessary and proportionate to the armed attack. When there are peaceful means available, then forceful measures are not necessary (Nicaragua, para 194; Oil Platforms, paras 73, 74). Proportionality requires that States react on the same level of damage done. (Nicaragua, para 194; Oil Platforms, paras 73, 74).

In the Oil Platforms Case, the US Vincennes ship was attacked by Iran. However, it was not necessary for the US to attack the oil platforms of Iran in response. The platforms posed no threat to the US and there was no correlation between the damage done to US Vincennes and the oil platforms. The US made an attack as a result of a ‘target of opportunity’. Each situation is determined on a case-by-case basis.

The right to self-defence is described in the UN Charter as ‘inherent’, ‘individual’ or ‘collective’. The above analysis addresses the ‘individual’ right to self-defence. It is worth addressing the other two types of self-defence here.

Anticipatory self-defence?

Art 51 provides that states should not use self-defence until the UNSC has taken the measures necessary to maintain international peace and security. Therefore, as a general proposition, states should not use force before reporting to the UNSC. Nevertheless, academic debate tells that there are two instances where states can use force – without being subjected to an armed attack; and without reporting to the UNSC. This is otherwise known as the right to anticipatory self-defence, as derived from the description word of ‘inherent’ in article 51 of the UN Charter.

1. Pre-emptive self defence: where the act of self-defence is taken immediately before the attack occurs. The ICJ in the Caroline Case has indicated that this is only possible where there is “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”. This approach is generally accepted
2. Preventative self-defence: where the state uses force before the attack/threat materialises. This approach is generally rejected – given that self defence is an emergency action and not applicable to distance threats.

Collective self-defence?

In the Nicaragua case, the US claimed that it was acting in collective self-defence for El Salvador when it funded and armed the contras to attack Nicaragua. The ICJ listed the requirements for collective self-defence as follows:

1. A state has declared itself to be attacked (literally and not as a matter of its independent assessment); and

2. The victim state has made a request to other states that they collectively come to its aid.

In Nicaragua, the US did not properly exercise its right to collective self-defence because El Salvador requested for the US to come to its aid after the attack, not before. Therefore, element (2) was not satisfied. There were also issues with element (1) as there was no evidence that El Salvador believed itself to be a victim state by the attacks of Nicaragua.

What happens when an attack cannot be attributed to a State?

This gives rise to the issue of whether international law could authorise the use of force against ISIS for conducting armed attacks (despite that ISIS is not a State).

How to characterise ISIS attacks across the border?

• Any attack of ISIS cannot constitute an armed attack because there is no State to attribute the attack back to. Therefore, States that are subjected to ISIS attacks do not have the right to self-defence.

  • This presumption can potentially rebutted by the argument that the right to self-defence arises in States against armed attacks committed by non-State entities.

Is there any other avenue by which States can intervene in the ISIS attacks?

• Application of the emerging harbouring doctrine: when a State is unable or unwilling to stop the attacks on its territory – then other States can act in self-defence on the territory of the State that is unable or unwilling.

  • This permits States to act in self-defence absent an armed attack – which is inconsistent with what the law currently is.

• Consent precludes the wrongfulness of acts. Therefore, if Syria consents to other States using force on its own territory – then those States can do so.

  • Syria has consented to other States forceful intervention – so long as those States will subsequently co-operate with Syrian authorities (as Russia does). Western countries are reluctant to co-operate with Syrian authorities and therefore they are not permitted to use force on Syrian territory.

• Resolution 2249 (2015): a UNSCR – which calls upon States to take all necessary measures to use force in Syrian territory to combat ISIS (calls upon is different to authorising use of force. There is no obligation to use force. Therefore, the UNSCR is ambiguous. Further, the UNSCR makes no reference to Ch VII (art 42) of the Charter and as a result it does not permit the use of military measures).

• Humanitarian intervention pursuant to R2P (Responsibility to Protect): R2P is based on the idea that the commission of crimes in a State is of concern to the international community and may be a reason for States to intervene. It starts from the idea that the Security Council should take action. However, as we see from UNSCR 2249 – the Security Council is paralysed on the issue of whether States can intervene in the Syrian crisis.

• Attacking the source of support for ISIS? It would be incredibly difficult to prove that an external State was supporting ISIS – by virtue of the requirement of effective control (which can only be satisfied upon proof of stringent standards of evidence). Even if it could be proven, cutting off the support of that State to ISIS would not solve the problem. ISIS is self-supported on the territory of Syria, predominantly through its trading of oil with other States.

  • Some may opine that States can enter Syrian territory without the consent of ISIS and this will render the conflict international. This is controversial. In any event, the intervention of the States in Syrian territory would be inconsistent with international law and thus not in accordance with UNSCR 2249 (2015).

• Anticipatory self-defence? Question: can the States under threat of an ISIS, act in anticipatory self-defence to prevent the ISIS attack before it happens? Answer: no. The only valid type of anticipatory self-defence is ‘pre-emptive’ – when the State responds in an act of self-defence immediately before the (visible) attack occurs. The ‘preventative’ approach to anticipatory self-defence is not valid under international law. Self-defence is an emergency action and not applicable to distance threats. The system of collective security is based on the idea that if there is sufficient time – States should go to the Security Council to address whether measures should be taken. In this sense, as regards the Syrian crisis, the system is adequate because the Security Council has only been able to produce an ambiguous UNSCR in relation to what measures States could take.

Differences between Humanitarian Intervention and R2P

If people are suffering, and the UN Charter gives no answer to use force to prevent the suffering – humanitarian intervention is a way to intervene without the Security Council. Based on this idea, the World Summit created the Responsibility to Protect (R2P). The R2P branches out into three pillars: (1) The enduring responsibility of a state to protect its population (both nationals and foreigners) from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement; (2) The commitment of the international community to assist states in meeting those obligations; (3) The responsibility of the states to respond collectively in a timely a decisive manner when a state is manifestly failing to provide protection.

Above all, the R2P derives from the assertion that the commission of international crimes in a State is of concern to the international community and may be a reason for States to intervene.

The differences between humanitarian intervention (HI) and R2P is that HI is triggered by humanitarian catastrophes, whereas the R2P is triggered by acts of genocide, war crimes, ethnic cleansing and crimes against humanity. HI’s aim is military intervention, whereas the aim of R2P is prevention, reaction and rebuilding. HI is unilateral (no authoristation) whereas the R2P is collective (the Security Council decides).

Libya example

A vendor in a street set himself on fire after his cart was taken off him, to protect economic hardship, harassment and humiliation inflicted upon him by corrupt officials. This led to an uproar of protests – which began peacefully but ended ruthlessly by Qaddafi’s reign to search for opponents with no mercy. The UN resolutions 1970//73 exemplify how the Security Council sought to give effect to the R2P. in addition to imposing on Libya arms embargo, travel ban and asset freeze; the resolution authorised a referral to the ICC for the situation in Libya. While not authorising the use of force, the Security Council thus took measures to limit the capability of the Libyan regime from continuing to use its military forces against the civilian population.

How would you characterise the relationship between the UN SC and the UN GA with respect to matters relating to international peace and security?

Resolution 377 A

The role of the Security Council is to discharge its responsibilities to maintain international peace and security on behalf of all the Member States. This does not discharge the responsibilities of the General Assembly to maintain peace and security as regards exposing aggressors and for the possibility of recommending collective action etc.

If the Security Council fails to maintain international peace and security where there appears to be a threat to or breach of the peace or act of aggression, the General Assembly shall consider the matter immediately with a view to making recommendations to members for collective measures.

In terms of considering where the Peace Observation Commission should go, if the SC is not exercising the functions assigned to it by the Charter, the General Assembly may utilize the Commission (or the Interim Committee when the Assembly is not in session)

The General Assembly is prohibited from making recommendations regarding disputes that are currently before the Security Council (see note 1).

The Wall Opinion

Art 12, para 1 of the Charter provides that the General Assembly shall not make any recommendation with regard to a dispute or situation over which the Security Council is exercising functions.

The ICJ concluded that the GA did not make a recommendation ‘with regard to a dispute or situation’ by requesting for an advisory opinion (see note 2). The court disproved that the GA made an ultra vires recommendation by adopting resolution ES-10/14 (see note 3).

It is often the case that, while the SC tends to focus on the international peace and security aspects of matters – the GA considers the humanitarian, social and economic aspects of such matters. (Therefore if they make a recommendation as regards H,S or E aspect of the matter – it will not be a recommendation that trumps the views of the SC on the matter.

The SC fails to act pursuant to the Charter upon negative vote of a permanent member – which will trigger the responsibilities of the GA.

(see note 1) UN Charter, art 12(2).

(see note 2) 32. The Court would also emphasize that, in the course of this Emer- gency Special Session, the General Assembly could adopt any resolution falling within the suibject-matter for which the Session had been con- vened, and otherwise within its powers, including a resolution seeking the Court's opinion. It is irrelevant in that regard that no proposal had been made to the Security Council to request such an opinion.

(see note 3) 35. Finally, the 'Tenth Emergency Special Session appears to have been convened in accordance with Rule 9 (hl of the Rules of Procedure of the General Asseinbly, and the relevant meetings have been convened in pursuance of the applicable rules. As the Court stated in its Advisory Opinion of 21 June 1971 concerning the Legul Consc~quentefsor Stutes of the Continued Presence of' South Afiicu in Namibiu (Soutlz West Africa) notitithstan~fingSecurity Council Resolution 276 (1970), a

'resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ's rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted' (1.C.J. Reports 1971, p. 22, para. 20).

In view of the foregoing, the Court cannot see any reason why that presumption is to be rebutted in the present case.

Notes

1. UN Charter, art 12(2).

2. 32. The Court would also emphasize that, in the course of this Emer- gency Special Session, the General Assembly could adopt any resolution falling within the suibject-matter for which the Session had been con- vened, and otherwise within its powers, including a resolution seeking the Court's opinion. It is irrelevant in that regard that no proposal had been made to the Security Council to request such an opinion.

3. 35. Finally, the 'Tenth Emergency Special Session appears to have been convened in accordance with Rule 9 (hl of the Rules of Procedure of the General Asseinbly, and the relevant meetings have been convened in pursuance of the applicable rules. As the Court stated in its Advisory Opinion of 21 June 1971 concerning the Legul Consc~quentefsor Stutes of the Continued Presence of' South Afiicu in Namibiu (Soutlz West Africa) notitithstan~fingSecurity Council Resolution 276 (1970), a

   'resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ's rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted' (1.C.J. Reports 1971, p. 22, para. 20).

   In view of the foregoing, the Court cannot see any reason why that presumption is to be rebutted in the present case.

Topic 4: International Humanitarian Law and International Criminal Law

International Humanitarian Law

International Humanitarian Law applies in armed conflicts. It regulates what type of weapons can be used, who can be targeted and the protection of the wounded and sick. The primary object of international humanitarian law is to ensure that suffering in armed conflicts is limited. A distinction is made between the jus ad bellum (the right to start an armed conflict) and the jus in bello (the law regulating the conduct of hostilities and the protection of victims in the armed conflict itself).

The historical evolution of international humanitarian law began in the 19^th century when Henru Dunant wrote memories on his time in war experiencing the pain in seeing wounded soldiers left to their fate on the battlefield. This is otherwise known as ‘A Memory of Solferino – 1862’. This began the movement towards people regulating armed conflict, which culminated with the creation of the International Committee on the Red Cross (ICRC) in 1863. The ICRC is responsible for giving neutral aid to parties in conflict. It is also responsible for promoting rules of International Humanitarian law in armed conflicts. Related to these developments was the first Convention regulating the means and methods of warfare named the Geneva Convention of 1864. This was the first multilateral treaty aimed at protecting soldiers from the atrocities of war – as it focused on the amelioration of the condition of the wounded in armies in the field. It was also created to prevent future scenarios like the Barrle of Solferino where soldiers were left to their fate. The next step was the Lieber Code of 1863, drafted to regulate the American Civil War. This was significant as for the first time, soldiers realised that conduct on the battlefield was limited. Following this came the St Petersburg Declaration of 1868, which allowed the use in times of war of explosive projectiles invented by Russia.

The Hague Law

The Hague Peace Conferences of 1899 and 1907 addressed the rules relating to the conduct of hostilities and the means and methods of warfare. The Hague Conventions of 1899 and 1907 were with respect to the laws and customs of war on land and the adaptation to maritime warfare of the principles of the 1864 Geneva Convention (also relating to the protection of soldiers).

Geneva Law

The Geneva Conventions relate to the protection of victims of armed conflict. The Geneva Conferences were organised four years after WWII with the initiative of the ICRC and the Swiss government. The first Geneva Convention focuses on the amelioration of the condition of the wounded and sick in armed forces in the field; the second focuses on the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea; the third addresses the treatment of prisoners of war and the fourth lays out the rules for protecting civilians in time of war.

The four Geneva Conventions were supplemented in 1977 by two protocols. Additional Protocol I applies to international armed conflicts whereas Additional Protocol II applies to non-international armed conflicts. The Geneva Conventions of 1949 apply universally to all states and the Hague regulations constitute customary international law.

Distinguishing between international and non-international armed conflicts

Common article 2 of the four 1949 Geneva Conventions provides that: In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Accordingly, in order to apply the Geneva Conventions – one must look to the factual situation and establish that there is an international armed conflict. Further, the Geneva Conventions will apply in a situation of occupation. That is, when a state decides to send its troops to another state – and occupies that territory of another state. This will constitute an international armed conflict. For example, in the Democratic Republic of Congo Case, article 8(2) of the Hague Regulations were interpreted to mean that Uganda was the occupying power of part of the territory of Congo. Article 43 of the Hague Regulations addresses the obligations of an occupant. For example in WWII, Germany exercised governmental authority over the Netherlands and was obliged to ensure public order was possible and to respect the existing laws of the occupied state.

Non-international armed conflicts are addressed by common article 3 to the four 1949 Geneva Conventions:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: [a list of provisions that lay out protective obligations in time of an internal conflict]. Moreover, a non-international armed conflict occurs when there is protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.

Additional Protocol II will only apply to a non-international armed conflict if the conflict is between a States armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations.

International humanitarian law is based of four constituent principles. First is the principle of distinction, which establishes the distinction between civilians and combatants; and civilian objects and military objects. States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets (see the Nuclear Weapons Advisory Opinion, at para 78). The only legitimate object which states should endeavour to accomplish during war is to weaken the military force of the enemy. Second is the principle of military necessity. This concept means that persons undertaking military operations must have a strategic military reason for doing so. Military necessity is an attempt to realise the purpose of armed conflict, gaining military advantage, while minimising human suffering and physical destruction; it is battlefield violence counterbalanced by humanitarian considerations. Third is the principle of proportionality. The military advantage that is to be gained should not result in incidental damage or loss of life that is excessive when considering the military advantage to be gained. When you attack an object – but the military advantage is excessive – then you have to balance between the military advantage and the resulting losses. The fourth principle is to prevent unnecessary or superfluous suffering. This is mostly related to the effect of damage resulting from the use of certain weapons. A weapon should not cause unnecessary suffering to a soldier.

Current challenges for international humanitarian law

In the context of international humanitarian law, terrorism is an issue because random terrorist attacks do not constitute an armed conflict (for example, the Paris attacks). Privatisation of armed conflicts is an issue because states normally resort to private organisations to avoid responsibility. For example, the US has a private security company named Black Water exercising certain functions in Iraq. Another issue for international humanitarian law is internationalised internal armed conflicts – where it is difficult to discern which rules apply. Use of unmanned drones is an issue because they may target civilian objects. Further, cyber warfare is an issue where attacks are launched via the internet of security systems of other states.

Relationship between international humanitarian law and international criminal law

International criminal law enforces the rules of international humanitarian law. This is seen through the establishment of the Nuremburg tribunal and the ad hoc tribunals of the 1990s to deal with the atrocities committed in Yugoslavia, Rwanda and Sierra Leone. International criminal law goes beyond international humanitarian law as it covers crimes committed outside an armed conflict. States felt there was a need to prosecute all crimes committed that were of such a nature that would shock the conscience of human kind. In 1998, the Rome Statute for the International Criminal Court (ICC) was drafted and 60 states entered into force in 2002. Currently, 123 States are parties to the Rome Statute.

Jurisdiction of the ICC

Formal Jurisdiction

Article 12(1) provides that States must have accepted the jurisdiction of the ICC in order to be tried by the Court. Under article 13, there are three possibilities by which the ICC can hear a case. First, the State party can refer the situation to the prosecutor (art 14). Second, the Security Council can refer the situation to the ICC under Ch VII if it is of the view that there is a threat or breach to the peace or act of aggression (art 13(b)). Third, the prosecutor him/herself can start an investigation proprio motu (art 15).

The ICC has jurisdiction over cases where there is a direct link between the crime committed and the territory of, or national of, a state party to the Rome Statute. Moreover, article 12(2) provides that the court has jurisdiction if:

(a)  The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

(b)  The State of which the person accused of the crime is a national.

Admissibility

The victim state must be unwilling or unable genuinely to carry out the investigation or prosecution (art 17(1)(a) Rome Statute). In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether certain conditions are applicable (art 17(2)(a) – (c)). In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings (art 17(3)).

Material Jurisdiction

The court only has jurisdiction with respect to crimes committed after the entry into force of the Rome Statute (art 11(1) – jurisdiction ratione temporis) – and crimes that are defined in the Statute. There are four categories of crimes recognised by the Rome Statute:

Genocide (art 6 of the Rome Statute) is characterised by ‘genocide intent’ – namely – committing an illegal act with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.

Crimes against humanity (art 7 Rome Statute) are only committed when the crime is part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

War Crimes (art 8 Rome Statute) There are now four separate types of war crimes in article 8 of the Rome Statute. Article 8(2)(a) lists war crimes applicable in IACs, which mirror those provided in article 8(2)(e) for NIACs. For example, ‘biological experiments’ in article 8(2)(a)(ii) are similar to ‘medical or scientific experiments’ in article 8(2)(e)(xi).

The crime of aggression relates to individual criminal responsible for a decision to launch an attack in another state. It must be a manifest violation of the UN Charter. Currently, the ICC does not have jurisdiction over this crime. Art 5(2) of the Rome Statute provides that:

The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

General Principles of International Law

The principle of legality is enshrined in the Rome Statute and stipulates that there is only a crime when there is a violation of the law (i.e. you must know you are doing something criminal). Other principles of international law include individual criminal responsibility (article 25), irrelevance of official capacity (article 27) and intent and knowledge/mental element (article 30).

Success stories of the ICC

The Lubanga Case: Lubanga was suspected of committing war crimes of enlisting and conscripting children under 15 and using them to participate actively in hostilities. This case was successfully concluded before the court. Another successful conclusion of a case was that of Katanga. Katanga was an accessory to the crimes committed in the east of the near Congo. Katanga was charged with crimes against humanity, murder against the civilian population and destruction of property.

The case against President Al Bashir (of Sudan) is an illustration of how the court is developing. Al Bashir is suspected of committing 5 counts of crimes against humanity, 2 counts of war crimes and 3 counts of genocide in Darfur. Two arrest warrants have been issued against Mr Bashir pursuant to article 27 of the Rome Statute. However, Sudan is not a member state of the Rome Statute and therefore disputes that Al Bashir can be brought before the ICC. Recently Al Bashir visited South Africa. Given that South Africa is party to the Rome Statute – it is obliged to cooperate with the court. South Africa decided not to arrest Al Bashir. South Africa argued that its obligation to Sudan to respect the immunities of its President prevailed over its obligations to the ICC. The key provision of discussion here is article 98, which determines that a state is not obliged to cooperate with court if it would disrespect diplomatic immunity (and because Sudan is not a member of the ICC, it has not accepted waiver of immunity under article 27). Nevertheless, if the situation of Darfur is referred to the ICC by a resolution – this can bind all members of the UN Charter, despite if Sudan is not a member to the Rome Statute.

Topic 5: International Environmental Law

Lecture Notes + readings + workgroup questions + seminar notes

The environment represents the living space and the quality of our life. We protect the environment; not only for us, but also for future generations – and this is clear from the principle of sustainable development. The principle that no state has the right to use its territory in such a manner as to cause injury to another states territory’ underlies international environmental law and was enunciated in the 1938 Trail Smelter Arbitration. This is the principle of territorial integrity. I.e. that states have the responsibility to ensure that they do not cause damage to other states or beyond the limits of national jurisdiction (i.e. the high seas).

Evolution of International Environmental law

The 1972 Stockholm Declaration on the Protection of the human environment

The Stockholm Declaration formulates 28 principles about the preservation and enhancement of the human environment (rather than about nature). The Declaration emphasises the interrelationship between men and nature. That is, environmental protection is the basis for human development. Men are a creature of the environment and mother thereof. It has the ability to shape it; and this brings certain responsibilities. Environmental protection is not only essential for mankind – but it also gives men the opportunity to improve the environment. Principle 21 of the Stockholm Declaration reflects the Trails Smelters principle that states not only have the right to exploit natural resources – but also that they have the responsibility to ensure that states do not damage other states territory. In addition to creating direct outcomes – the Stockholm Declaration inspired the adoption of several conventions. Such as the 1971 Ramsar Convention on Wetlands, the 1972 UNESCO Convention on World Heritage and the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

The CITES is a trade convention. It protects environment to protect endangered species and is important in relation to stopping the trade in ivory. Ivory trade is a problem that has taken massive precautions. It threatens the survival of elephants (as approximately 30,000 elephants are killed per year for their tusks). For example, armed groups trade ivory from the tusks of elephants to fund their militia. Accordingly, there is a direct link between ivory trade today and armed conflict. Ivory trade is no longer solely an environmental issue; but also a security issue.

The 1992 Rio Declaration on Environment and Development

The Rio Declaration contains 27 principles to establish a new, equitable global partnership for sustainable development. It reaffirms the sovereignty of states to exploit their own natural resources. Principle 2 ensures that states shall not to do damage to other states (which reflects, again, the Trails Smelters principle of territorial integrity). Principle 3 provides that the right to development must be fulfilled to equitably meet the environmental needs of present and future resources. Moreover, sustainable development is about balancing economic activities with environmental protection. These principles themselves are not legally binding, but they have legal significance because they have formed part of subsequent Conventions. For example, Agenda 21 (action plan); the 1992 UN Framework Convention on Climate Change; the 1992 Convention on Biological Diversity; and the 1992 Convention to Combat Desertification.

Most environmental conventions are framework conventions. They set out general obligations for states to address environmental problems. The conventions are, by nature, general and abstract. That is why protocols have been adopted to make the environmental obligations more specific (such as the Kyoto Protocol). Further, during Conferences of the Parties (COPs), states can make decisions that develop their obligations about conservation at the national level.

Principles of International Environmental Law

The responsibility not to cause damage to the environment of other states or to areas beyond national jurisdiction is reflected in principle 2 of the Rio Declaration and the Trails Smelters principle of territorial integrity. The Principle of co-operation is reflected in principel 27 of the Rio Declaration. It is based on the idea that states need to cooperate to preserve shared natural resources. This entails an obligation to provide other state with information about economic activities and to consult with other states if the activities will have a harmful effect on the environment of those states. It is controversial whether the precautionary principle has been accepted by states. It is enshrined in principle 15 of the Rio Declaration and stands for the proposition that, where there are threats of serious damage to the environment, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation. Under this principle, measures can be taken to prevent the risk that the danger materializes. The polluter-pays principle obliges polluter’s to bear the costs of pollution. The principle of sustainable development reconciles economic development with environmental protection. This principle focuses on a type of development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs.

The principle of common but differentiated responsibilities (CBDR) is enshrined in principle 7 of the Rio Declaration. It means that all states have a common responsibility to solve environmental problems, however depending on their resources; their contribution to solving this problem can differentiate. The underlying idea is that developed countries should take the lead in solving environmental problems – because they have contributed to most of these problems and they have technical probabilities to solve the problems. The Paris Agreement gives effect to the CBDR principle by including an initiative for capacity building – which supports action by developing countries and the most vulnerable countries, in line with their own national objectives. The UNFCCC gives effect to the CBDR principle in article 4(1) in listing the commitments of the parties, taking into account ‘their common but differential responsibilities and their specific national and regional development priorities’.

The Paris Agreement on Climate Change

The Paris Agreement is a more specific agreement under the UN Framework Convention to Combat Climate Change. It is a successor agreement to the Kyoto Protocol and its objective is to hold the increase in the global average temperature below 2 °C above pre-industrial levels. This agreement is based on the principle of common but differentiated responsibilities meaning that only developed state have to reduce their emissions. The disadvantage to the agreement is that targets for individual states are not specified.

What is an environmental impact assessment?

An EIA is an assessment of the impact that a future project will have on the environment. Moreover, States have an obligation to conduct such an assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource (para 203 of Argentina v Uruguay). States may agree on the necessity to conduct an EIA, but disagree as to the requirements of the EIA (i.e. whether it is a national or international practice). In Argentina v Uruguay, Uruguay argued that the only requirements international law imposes on it are that there must be assessments of the project’s potential harmful transboundary effects on people, property and the environment of other States, as required by State practice and the International Law Commission 2001 draft Articles on Prevention of Transboundary Harm from Hazardous Activities, without there being any need to assess remote or purely speculative risks.

In accordance with the UNEP Goals And Principles, only that the “environmental effects in an EIA should be assessed with a degree of detail commensurate with their likely environmental significance” (Principle 5) without giving any indication of minimum core components of the assessment. On this basis, the Court concluded that it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. The Court also considers that an environmental impact assessment must be conducted prior to the implementation of a project (para 205). Therefore, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken (para 205).

Procedural obligations assume importance on substantive obligations – however, procedural obligations are not an essential indicator of whether substantive obligations have been breached. While procedural obligations and substantive obligations ‘complement one another perfectly (para 78)’. and there is a functional link between the two – this link does not draw an inextricable connection between the two in the sense that they are dependent on one another. In accordance with the majority of the ICJ in Argentina v Uruguay, a breach of procedural obligations can be determined separately to a breach of substantive obligations (para 79).

Contemporary concerns and challenges for international environmental law

Biofuels are used to promote a safer environment. However, they are cultivated in areas where rainforests grow and therefore rainforests are chopped for production of biofuels. This constitutes wildlife crime. As a result, if a state wants to reach certain environmental objectives – this can run counter to other environmental objectives. A further issue is whether there exists a right to a healthy environment. This would, for example, restrict the government from making decisions to expand the airport if that had a negative impact on the environment nearby. Whether animals have rights is another issue for environmental law. The ICJ addressed this issue when Australia went to the court to stop Japan from continuing its whaling program through the whaling convention that was adopted to regulate the economic activity of whaling. Finally, there is the issue of whether oil and gas can be exploited and drilled for in the protected region of the Arctic.

Law of the Sea

The Arctic Sunrise Case

In the Arctic Sunrise Case, Russia drilled for oil in the Arctic (which has become possible to do due to climate change). Green Peace opined that the drilling should be stopped because of unacceptable dangers to the environment, the remoteness of the area and the fact that there is no effective technology to recover oil spilt on ice. Accordingly, Green Peace boarded a ship called the Arctic Sunrise, which stayed at a distance of the platform where the Russian campaign was directed. Small boats were sent to the platform. However, Russian guards held guns towards the activists on the small boats. Some activists were arrested and the others went back to the Arctic Sunrise (the main ship). The Russian authorities then ceased the Arctic Sunrise and towed it to a Russian Port. It then arrested the crew while the ship was not in the safety zone established by Russia for the platform. The issue before the court was whether Russia acted legally. This depended first, on the right of a State to exploit natural resources in their exclusive economic zone (EEZ); second, on the environmental obligations of coastal and other states (which would address whether Green Peace was justified in thinking there was a problem); and third, the legality of boarding and seizing a ship in the EEZ (of Russian authorities). In addressing this issue – the court considered the following provisions of the UN Convention on the Law of the Sea (UNCLOS):

Under article 56(1)(a) UNCLOS: Coastal States have sovereign rights for the purpose of exploring and exploiting, conserving and managing natural resources. Further, article 60(1) of UNCLOS provides that in the EEZ, the coastal State has the exclusive right to construct and to authorize and regulate the construction, operation and use of installations and structures for the purpose of exploiting natural resources. Therefore, Russia had an exclusive right to construct and operate oil platforms in the EEZ. Nevertheless, the actions of Green Peace according to their concerns that a problem was occurring, could be justified under the following provisions: article 194 of UNCLOS, which provides for the obligation to take all necessary measures to prevent, reduce and control pollution of the marine environment; and also article 208 of UNCLOS, providing for the obligation for coastal States to adopt laws and regulations and take other necessary measures to prevent, reduce and control pollution from seabed activities under their jurisdiction. Notably, articles 194 and 208 are obligations of care rather than an obligation of result. They entail an obligation of due diligence – for people/coastal states to do everything in their control to prevent environmental damage.

Pursuant to article 56(2) of UNCLOS, there is an obligation to have due regard to the rights and duties of other States. One of such rights may be known as the right to freedom of navigation, found under article 58(1) of UNCLOS. This entitles states/persons to have the right to navigate under the EEZ of another state, and the other state shall not interfere with this freedom. Accordingly, the Arctic Sunrise could navigate in Russia’s EEZ zone. Nevertheless, the Arctic Sunrise must respect the safety zone and oil platforms established by Russia pursuant to article 60(4) and 60(6) of UNCLOS. Article 60(4) provides the right for coastal States to establish safety zones around installations and structures, while article 60(6) provides that all ships must respect these safety zones. This created an issue in the case because Green Peace did not respect the safety zone of Russia by sending small boats into the safety zone.

Article 73 of UNCLOS provides that the coastal State may, in the exercise of its sovereign right to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in accordance with this Convention. Therefore, Russia had the right in its EEZ to board, inspect and arrest groups that violated its laws and regulations in relation to living resources. However, Russia only had laws in relation to the non-living resource of oil platforms. Therefore article 73 did not provide Russia with the legal basis to take Green Peace to court after arresting its crew. 

Article 60(2) of UNCLOS provides that “the coastal State shall have exclusive jurisdiction over installations and structures”. Further, article 60(4) provides that “the coastal State may … establish reasonable safety zones around such … installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the … installations and structures”. The maximum size of a safety zone may be 500 meters: article 60(5) UNCLOS.   These articles provided Russia with a limited basis to exercise jurisdiction. Accordingly, if Russia had arrested Green Peace within its safety zone, then it would have acted legally. However, the Arctic Sunrise was not within the safety zone of Russia at the time of arrest. Therefore there was no appropriate legal basis to arrest the ship and crew.

The right to hot pursuit

Article 111 of UNCLOS provides for the right to hot pursuit. If a ship violates the laws and regulations of a coastal state, within the latters jurisdiction, it has the right to pursue the ship, even in the high seas, and to arrest the ship and its crew. The right to hot pursuit is the right of a coastal State to pursue outside of territorial waters, and take enforcement action against, a foreign ship that has violated the laws and regulations of that State. It serves to prevent foreign ships that have violated the laws and regulations of a coastal State from evading responsibility by fleeing to the high seas (para 245 of Arctic Sunrise Case). In principle, whether Russia had the right to pursue the Arctic Sunrise for violating its laws and regulations – depended on whether the conditions in article 111 were satisfied. The Arbitral Tribunal decided that the conditions in article 111 were not satisfied and did not provide for a viable legal basis for Russia to act in the way it did.

The conditions for listed in article 111 are that:

The hot pursuit of a foreign ship may be undertaken when (1) the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. (2) Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and (3) may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. (4) It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. (5) If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.

Piracy

Article 101 of UNCLOS provides that piracy constitutes “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship […] against another ship”. In the Arctic Sunrise case, Green Peace could not commit piracy because the acts of Green Peace were not carried out against another ship, but against an oil platform. This leaves the question open as to whether an international organization such as Green Peace can commit acts of piracy. The answer to this question relates to defining one phrase within the definition of piracy in article 101. That is, ‘private ends’ – piracy must be committed for private ends. It is not settled in international law what private ends are, given that they cannot be political ends nor public ends.

Topic 6: International Trade and Investment Law

Lecture Notes + readings + workgroup questions + seminar notes

The economic order before 1945

During the economic order before 1945, ‘lex mercatoria’, public international economic agreements were created. These provided for trade and investment opportunities. The congress of Vienna introduced peace and stability in Europe for the first time, and a diplomatic system of consultations. This was also known as the concert of Europe. During this time, the Paris peace conference of 1918-19 took place, establishing Wilson’s fourteen points. Further, in 1933 the World Monetary and Economic Conference took place in London. The first regional arrangements were also made. For example, in Vienna the freedom of navigation was recognised and to be elaborated in specific treaties which are still in place today. The League of Nations was not particularly effective, as it could not prevent the outbreak of wars. From a peace and security point of view, the League of Nations was a failure. But from another point of view, they made a great attempt to address economic and social issues.

In 1929 a serious economic crises occurred in New York in Wall Street. This created a world of economic and financial crisis resulting in high levels of unemployment and monetary instability. The message to the League of Nations, as the only world secretary in place, was ‘what can we do about it’? How can we implement principles of international law to govern the world economy? This was discussed in the World Monetary and Economic Conference took place in London that took place in 1933. Some say the right to power has to do with the economic and social crisis in this power – and therefore the economic order in Germany played a part in the spark of WWII. By the end of WWII, a new international order needed to be built. A major conference on this took place in San Francisco from April – June in 1945. This resulted in the adoption of the UN Charter in June 1945. Lessons were learned from the failure of the League of Nations. It immediately sought to provide for an improved economic and social order.

The Bretton Woods Order

Bretton Woods is a name of a small place on the east coast of the US, close to New York and New Jersey. There is a small hotel called Bretton Woods. In 1944, fourty-four states came together to discuss the contours of the post war in the international economic order. They discussed how to provide for a new economic order that would prevent the economic crisis that took place in the 1930s with a sharp decline of world trade resulting in monetary instability, high unemployment and an escalation of tariffs (resulting in more decline of world trade). The need was felt to have agreement on liberalisation in 3 substantive periods, and 3 institutional periods.

The substantive periods

(1) Freedom (of navigation, trade, over flight, investment etc.); (2) legal equality/non-discrimination (in international financial and trade relations); and (3) reciprocity (balance in the trade concessions that states grant each other).

Institutional pillars

Two of them were provided for in Bretton Woods (and are therefore sometimes called the Bretton Woods twin – in the center of Washington: the International Monetary Fund; and the World Bank). The other is based in Geneva and is called the World Trade Organization.

International Monetary Fund (IMF)

The IMF was established with a view to establish international monetary stability and to ensure the predictability of currency rates. It operates as a fund. Its method is quotas and drawing rights and it has 188 State parties. When States become a party to the IMF, they become a member of the financial institution. Through the conditional financial assistance, States have to put certain amounts of capital into the funds. The amount of State input is determined by the size and strength of the economy (otherwise known as adjustment programmes). Upon the basis of certain indicators, the IMF determines capital fund.

World Bank Group

The World Bank has 188 State Parties. It is the more popular name for ‘group of banks’. The most important one is the IBRD - The International Bank for Reconstruction and Development. The IBRD was meant to re-finance the economies of countries that were devastated in WWII, as well as the reconstruction of some Asian economies. Eventually, Development Projects became more popular and effective. Before 1949, the World Bank was very active. It started to finance big infrastructure projects. As soon as countries such as India and Pakistan achieved independence, the World Bank, as the major financial wing of the financial community – started to finance all types of economic activities. The World Bank provides loans on commercial terms. States can afford lower interest rates compared to other commercial banks. The IBRD was largely used, but it was felt that, for poor developing countries – we needed more soft lots (such as allowing for grace periods). This became, in 1960, the IDA: The International Development Association.

The IDA is a smaller bank than the IBRD – but is still important. These two banks provide loans to States. In the 1950s – the wish came to the floor to also develop the bank in the private sector. This is the reason why, in 1956, the International Finance Corporation (IFC) was established. Criticism has it that this was to stimulate capitalism. Therefore the Soviet Union never participated in the IFC. The World Bank does not only providing loans, but also, financial flows to companies. For this purpose, direct investment is important. One of the purposes of the bank is to promote safety of foreign investment, minimize capital risk and maximize trust. In order to promote trust, the Multilateral Investment Guarantee Agency (MIGA) was established. The International Centre for Settlement of Investment Disputes (ICSID) was also created to promote trust and prevent the increase of risk. We learn from human rights law (i.e. the local remedies rule) that the domestic judiciary must be exhausted. Thereafter, if justice cannot be done in the host state –international proceedings may be instituted before ICSID.

There are three conditions that must be satisfied for ICSID to settle a dispute: (1) Both states (the investor and the investing state) must be parties to the ICSID Convention; (2) both parties to the dispute must have consented to go to ICSID; and (3) the dispute must arise directly out of the investment.

International investment protection and expropriation

Nowadays, foreign investment laws are more important than commercial loans and development assistance money. The numbers of 50 billion euros each year are invested overseas. It is important to understand that the host state is held responsible for providing fair treatment for foreign investors, companies and persons. This is known as the FET principle  – fair and equitable treatment. It means due process and good faith (on the side of the host state). Under the FET principle, regulatory measures must always be based on the principle of legality. It means that the foreign investor should also act in good faith by reporting to the taxes its income and respecting the sovereignty of the host state.

Another relevant principle is that of ‘full protection and security’ – which is the obligation of a host state. If it comes to expropriation, then the host state must meet certain criteria (which form an international minimum standard) developed by Western States for what they viewed as arbitrary or unlawful takings of property by host states. This is a four-part rule. Whenever there is an undertaking – the host state has to prove that the expropriation was (1) for public purposes (so as not to serve the personal interests of a local government official or be done for political reasons); (2) non-discriminatory (i.e. it should not target the property of nationals of a single state leaving others, who are in the same position, untouched); (3) non-arbitrary; and (4) compensated for (compensation must be full, prompt and effective).

An arbitrary act is a willful disregard of due process of law. It is an act which shocks, or at least surprises, a sense of juridical propriety (para 128, ELSI case). Even if something is opposed to a rule of law (by bring unreasonable within the domestic law of a state); this does not mean it will be contrary to the rule of law (para 128, ELSI case).

In ELSI, the Mayor’s order was not arbitrary because it was consciously made in the context of an operating system of law (thus, it was not contrary to the rule of law).

This four-fold approach has been criticized by developing countries as being pro-investor and anti-developing-state. For example, Latin America argued against preferential treatment for foreign investors and international arbitration. Parties to international investment disputes may argue that the dispute should be resolved under local jurisdiction (i.e. this is known as the Calvo Doctrine, formulated by an Argentinian scholar – see North American Dredging Company of Texas v Mexico. Under this doctrine, a balance must be struck between the sovereign right of national jurisdiction on one hand, and the sovereign right of national protection on the other. This supports a dualist/positivist view of international law – that international law and municipal law are two separate legal orders).

World Trade Organization

After IMF and the IBRD there was an idea to create an International Trade Organization (ITO). To this end an agreement was reached in the Havana Charter of 1948 to establish the World Trade Organization. The Havana Charter of 1948 was criticized. To improve its problems, in Geneva, a agreement was reached to conclude the GATT - the General Agreement on Tariffs and Trade of 1947. This was purposed to be a chapter into a new charter of the ITO. However, the ITO was never created. Remarkably, the GATT still exists and is now part of the WTO. For many years, the GATT was the major international forum for consultations on international trade measures. Moreover it also established a dispute resolution system. This eventually led to the establishment of the WTO in 1944-5. It is the institutional jacket for the GATT of 1947. It also took on board all the other international trade agreements, which had to be concluded under the auspices of the GATT for the period of 50 years.

In the 1960s, the Kennedy rounds of negotiations took place. This resulted in a reduction of trade tariff agreements. In the 1970s, we had the Tokyo rounds and in the 1980s – we had the Uruguay rounds, which started in Geneva and ended in Morocco. There, agreement was reached to establish the WTO. Member states of the WTO you automatically continue to be a party to the GATT agricultural agreement and many other international trade agreements. The agreement to establish the WTO is a short document, but behind it, are thousands of pages in the GATT.

Principles of the GATT

The first two principles of the GATT operate on the basis of non-discrimination.

(1) Most Favoured Nation Treatment Principle

The aim of the Most-Favoured Nation Treatment (article I) principle is to liberalise international trade. If one state grants concessions to another state, in principle, this should extend to all other states. There should be no conditions or restrictions to the import or export of product and thus, no discrimination regarding like products between states. In the EC-Seals Products Case, article I of the GATT was breached because the EU Seal Regime did not “immediately and unconditionally” extend the same market access advantage to Canadian and Norwegian seal products that it accorded to seal products from Greenland.

(2) National Treatment Principle

The second principle of the GATT is that of National treatment (article III). This applies when, if a state attempts to give foreign companies international trading houses – that state must give the same rights to its domestic companies. Thus, there should be no discrimination between national traders and international import companies as regards like products. Foreign investors and domestic enterprises must be treated on an equal footing. In the EC-Seals Products Case, article III of the GATT was also breached because it accorded less favourable treatment to imported Canadian and Norwegian seal products than that accorded to like domestic products.

(2) Elimination of quantitative restrictions

The third principle is the ‘elimination of quantitative restrictions’ (Art. XI). This principle stands for the fact that states can only export a certain amount of goods or number of services to other countries. There are many kinds of barriers (package restrictions, health requirements, labor and environmental norms – which all basically provide for protectionism – see the US-Shrimp Case).

What are like products according to the WTO Dispute Settlement bodies?

The definition of ‘like’ products according to WTO dispute resolution bodies contains four elements. (1) The products must have identical end-use; (2) they must attract similar consumer tastes and habits; (3) they must have matching physical characteristics; and (4) like tariff classification. Arguably a 5^th element is that like products should be substitutable.

Like products refer to products being transported on the same route under like conditions (Annex I, Ad Article V, paragraph 5). Products that are imported from one territory to another, shall not be treated less favourably than that accorded to like products of a national origin (Arts I; III, para 4).

Exceptions to the principles of the GATT

General Exceptions

Art XX of the GATT permits measures to be taken by the contracting parties, such as those which are necessary to, inter alia, protect public morals or human, animal or plant life etc. Such measures may only be taken by means that does not constitute arbitrary or unjustifiable discrimination between countries where the same conditions prevail. For example, in the EC-Seal Products Case, the Appellate Body upheld the Panel's finding that the EU Seal Regime (which prohibited the importation and placing on the market of seal products) was “necessary to protect public morals” within the meaning of GATT article XX(a). This case therefore confirmed that animal welfare can be treated as part of public morals. (A further case example of where discrimination would be justified is where meats are be imported into a country because that country does not observe animal welfare).

Some cases fail on the requirement that the discrimination must be justified and not arbitrary (‘the chapeau’). For example: in the EC-Seals Products Case, even though the discrimination was necessary to protect public morals, it was not justified under the chapeau. Further, in US Shrimp Case, the Appellate Body held that although the US import ban was related to the conservation of exhaustible natural resources and, thus, covered by article XX(g) exception, it could not be justified under article XX because the ban constituted “arbitrary and unjustifiable” discrimination under the chapeau of article XX. The measure was “unjustifiably” discriminatory because of its intended and actual coercive effect on the specific policy decisions made by foreign governments that were Members of the WTO. The measure also constituted “arbitrary” discrimination because of the rigidity and inflexibility in its application, and the lack of transparency and procedural fairness in the administration of trade regulation. NB: the concept of arbitrariness under Art XX is different to the concept of arbitrariness in relation to expropriation.

Security Exceptions

Article XXI permits states to take action necessary for its essential security interests; in particular, nothing shall prevent states from maintaining international peace and security in accordance with the UN Charter. Article XXI is designed to prevent foreign investment so as to protect domestic production and trade.  For example, we see this in the media industry: the deputy minister of agriculture wants to liberalize the media in the Netherlands – but many oppose this view by not wanting to have foreign influence and want to protect the culture of the Netherlands. A trending discussion in Geneva is that trade is important for human prosperity and social progress - but non-trade concerns also need to be considered.

Non-trade concerns or Trade plus

Development

On one side of the development coin – the GATT can restrict the outflow of foreign currency so that states can use foreign currency to build up their own economies. On the other side, there is the practice that developed countries admitted that they couldn’t trade on equal terms so the whole idea of ‘Most Favoured Nation, Non-Discrimination and Reciprocity’ – is not fair because states are not the same. Accordingly, the states allowed for preferential treatment and positive discrimination. In 2016 this was the basis for the EU to grant 86 developing countries a generalized system of trade preferences – to allow the importation of products, goods and services from identified developing countries – to come in at lower tariffs – unless a free trade agreement has been concluded. Nowadays, with the increasing number of free trade agreements, the lower tariffs of developing countries do not mean so much. Another ongoing concern is the environment.

Environment, Sustainable Development and Animal Welfare

We do not want to have genetically modified organisms etc. therefore all kinds of environmental requirements come into being. These are recognised in the context of the WTO. Apart from free trade and liberalization of services, one particular role of the WTO is to promote sustainable development (to promote sound economic development while providing for environmental conservation). Accordingly, the WTO also aims for sustainable development and therefore we have a number of judgments, which recognise international trade from an environmental point of view. This also goes towards how to promote animal welfare.

Relationship Bretton Woods institutions and the United Nations

The IMF, World Bank and WTO are specialized agencies, but possess a large measure of independence. In the IMF and World Bank, states have to put in capital – which determines every states influence in the system. This is called the weighted voting system. The richer you are, the more votes you have. By contrast, in the UN, one state is only allowed one vote. Therefore, what is of the majority in Washington, may be the minority in New York. This provides for an interesting dynamic between the UN in New York and the Bretton Woods institutions in Washington. The WTO is also one state, one vote. Decision-making is only by consensus. The consensus is negotiated in the green room of the WTO. Only the important trading nations negotiate and the remaining states have to accept this decision.

Ever since the UN came into being, developing countries voiced their criticism on the Bretton Woods institutions in the context of the UN. This led to many new institutions. Two main institutions came into being: the UNCTAD – the United Nations Conference on Trade and Development, and the UNDP – the United Nations Development Program.

UNCTAD

The year of 1964 marked the first time in world history that 77 developing states came together to provide and prepare for a common position in international trade negotiations. They took the initiative, supported by the Soviet Union, to create a trade and development conference. Western countries were taken by surprise and became so nervous such that in 1965, one year later, they decided to create a new chapter to the GATT. This is the only chapter of the GATT called trade and development (Pt IV). This was in direct competition with UNCTAD – as it was not desired for UNCTAD to take over the functions of the GATT.

UNDP

In 1966, the UN General Assembly decided to establish an alternative to the World Bank (without capital). This institution often cooperates with the World Bank. It is important for developing countries to have the majority in the board of the UNDP – whereas they are in the minority in Washington. This is, accordingly, somewhat of a power game. The IMF, World Bank and WTO do not want to be coordinated by the political UN. The IMF and World Bank are specialized agencies with a large degree of autonomy. They are independent financial institutions. The WTO, based on American pressure, is not even a specialized agency of the UN. It is not a Bretton Woods institution per se, but it fits within the Bretton Woods order.

International economic law – trending issues

Two main concerns of international economic law ought to be considered.

First of all is the issue of how to contribute, by way of progression of international economic law, to development of the international global economy as a whole and also developing countries in particular. Second is the tension between liberalization and the freedom to regulate for social or environmental purposes. When it comes to a more fair international economic order – there are two main fundamental principles. First is the idea of equality (for example – maintaining one vote for all). Second is the idea that there should be an active duty to cooperate for world development. Each idea will be dealt with in turn.

Sovereign equality

From the principle of sovereign equality, three main more specific principles of international economic law follow. First, is the idea of economic self-determination. Self-determination is a term from the decolonization era. Many states claimed it was not enough to be politically independent and that political independence is an empty hole if you cannot arrange your own economic affairs. States argued they should have the right to a model that best fits their purposes – to achieve economic independence.  Secondly, it was specified for oil, gas, tea, coffee (all kind of natural resources) – that States have to be the master of their own natural resources – without colonial or western impact. This is the idea of sovereignty over natural resources. Third is the principle of participatory equality in international economic relations. This principle is adopted by China and India. It is based on the line of thought that ‘if we are equals – we should have equal strengths in decision making on international economic and financial affairs’. This is now, more or less, a reality – so far as these huge economic societies are concerned.

Duty to cooperate for world development

From the principle of cooperation for world development, we see the more specific principle of preferential treatment and positive discrimination emanate. This operates for the development of developing countries. It means that the principle of non-discrimination cannot be applied so straightforwardly because unequals should be treated unequally. This is the explanation of positive discrimination: treat unequals unequally to the extent that they are unequal.

The duty to co-operate also enshrines the principle of entitlement to development assistance. This is based on the discussion of the gross domestic income as official development assistance. Another principle worth noting is that of stabilization of export earnings. This was a problem for developing countries for a long time because commodity prices are very volatile and fluctuate a lot – whereas the process of industrial products are always on the rise. This recognises that the terms of trade are often unequal. Two further principles that emanate from the duty to cooperate are the right to benefit from science and technology and the Common heritage of humankind. Overall, an interesting body of principles emanate from sovereign equality and the duty to cooperate – all of which formulate international economic law relating to development.  These principles give rise to interesting discussions on the transatlantic investment and trade agreement between Europe and the US; or in the pacific region, between Korea and Japan, and China on the one hand and other developing states on the other.

For WTO purposes, trade should be liberalised for the benefit of all – however, many people within states feel uneasy with this approach by wanting to preserve their own national culture identity (for example, maintaining a states own film industry without foreign influence, avoiding genetically modified foods and maintaining a states environmental and labour norms).  

These considerations are mentioned in discussions between globalisation, liberalisation, privatisation on one hand; and on the other – cultural identity, nationalism and emphasis on sovereignty for states to have their own regulatory power – and for the Parliaments to set their own democratic rules rather than a wave of liberalisation and globalisation imposed on them.  In conclusion, the debate between globalization and sovereignty is encompassed in the tension between liberalization of trade and investment and the freedom to regulate for social and environmental purposes.