Fitness First? Assessing the Treatment of Fitness to Stand Trial in the Trial of Ieng Thirith – Esther Pearson

Introduction

On 22 August 2015, former ‘first lady’ of the Khmer Rouge, Ieng Thirith, passed away at the age of 83. Ieng was the Minister of Social Action during the period of Democratic Kampuchea and had been indicted before the Extraordinary Chambers in the Courts of Cambodia (ECCC) on charges of genocide, crimes against humanity and grave breaches of the Geneva Conventions. However, in September 2012, proceedings against Ieng were stayed after she was found to be unfit to stand trial due to progressive dementia. Following Ieng’s death, residents of Phnom Penh expressed their frustration with the lack of prosecution (for example in the Khmer Times article Khmer Rouge ‘First Lady’ Dies). This post reflects on howthe ECCC’s approach to assessing Ieng’s fitness to stand trial — and the consequences its findings — tried to strike the delicate balance between the imperative to secure a prosecution and need for a fair trial.

Fitness to Stand Trial

In 2004, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) considered the concept of fitness to stand trial in a decision on a motion for the medical examination of the accused in Prosecutor v Pavle Strugar (Decision Re the Defence Motion to Terminate Proceedings). The Trial Chamber considered that for an accused to be fit to stand trial, he or she must:

  • have the capacity to plead;
  • understand the nature of the charges;
  • understand the course of proceedings;
  • understand the details of the evidence;
  • be able to instruct counsel;
  • understand the consequences of the proceedings; and
  • testify.

While the finding of fitness to stand trial is a legal determination made by the court, medical experts are typically employed to assess the condition of the accused and produce a report detailing their findings. Before relying on the expert’s report, the court must evaluate whether the report contains sufficient information as to the sources of the expert’s conclusions, and whether those conclusions were drawn impartially.

The ECCC Rules (rule 32) provide for the medical examination of an accused at the request of a party, in order to determine whether the accused is fit to stand trial. On 21 February 2011, Ieng’s defence team filed a request for an assessment of her fitness to stand trial. Between April and October 2011, an expert geriatrician and four psychiatric experts carried out assessments. They concurred that Ieng’s symptoms were consistent with a diagnosis of dementia and, as a result of her condition, her capacity to understand the course of the proceedings and to instruct counsel was significantly impaired. However, the experts explained that there was a possibility that Ieng’s condition would improve by using a medication for Alzheimer patients and through occupational therapy.

The Trial Chamber acknowledged the gravity of the crimes for which the accused was charged (Decision of Ieng Thirith’s Fitness to Stand Trial). However, it noted that properly qualified medical experts, upon assessment of the accused with credible testing methods, had found that Ieng was unable to meaningfully participate in her defence. Accordingly, the Trial Chamber, having weighed all relevant factors in the balance, found Ieng unfit to stand trial.

Consequences of Unfitness

After declaring Ieng to be unfit to stand trial, it fell upon the Trial Chamber to determine the consequences. Given the experts’ opinions that there was a slight possibility of Ieng’s condition improving through medication and occupational therapy, the national judges imposed orders for mandatory treatment, while the international judges ordered her immediate unconditional release. In this divided situation, the Trial Chamber found that it should adopt the outcome most favourable to the accused, ordering that she be released unconditionally.

Continued Detention with Mandatory Treatment

The decision of the Trial Chamber to release Ieng from detention without condition was promptly appealed by the Co-Prosecutors to the ECCC Supreme Court Chamber (Immediate Appeal against Trial Chamber Decision to Order the Released of Accused Ieng Thirith). The Supreme Court Chamber found that the Trial Chamber was obliged to exhaust all measures available to it to enable the accused to become fit to stand trial, including making orders that the accused undergo treatment while being detained in a hospital or comparable facility (Decision on Immediate Appeal Against the Trial Chamber’s Order to Release the Accused Ieng Thirith). The Supreme Court Chamber stated that the unconditional release of the accused would forego any effort in the direction of resuming proceedings against the accused, and ‘such an outcome is irreconcilable with the interests of justice from all points of view, including the accused, prosecution, civil parties, and Cambodian society as a whole’ (at [28]). There is a basis for such orders in international criminal law, with precedents in Prosecutor v Jovica Stanisic and Franko Simatovic (Decision on Defence Appeal of the Decision on Future Course of Proceedings) and Prosecutor v Vladimir Kovacevic (Decision on Appeal Against Decision on Referral Under Rule 11bis) before the ICTY. The Supreme Court Chamber ordered the Trial Chamber to institute the recommended treatment and to review Ieng’s condition in six months.

Release from Detention with Judicial Supervision

On 13 September 2012, after experts had again reviewed Ieng’s condition, the Trial Chamber delivered its verdict that Ieng remained unfit to stand trial and ordered that she be released without conditions (Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following Supreme Court Chamber Decision of 13 December 2011). Again, the Co-Prosecutors appealed to the Supreme Court Chamber, submitting that Ieng should be subject to six conditions for release:

  1. That she reside at a specified home address;
  2. That she make herself available for weekly safety checks by authorities or officials appointed by the Trial Chamber;
  3. That she surrender her passport and national identification;
  4. That she not directly or indirectly contact other co-accused (excluding her husband, Ieng Sary);
  5. That she not directly or indirectly contact any witness, expert or victim who is proposed to be heard before the Trial Chamber and not to interfere with the administration of justice; and
  6. That she undergo examination by medical practitioners appointed by the Trial Chamber every six months.

(Immediate Appeal Against Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following the Supreme Court Chamber Decision of 13 December 2011, Case No 002/19-09-2007, 14 September 2012, at [10]).

Conditions that restrict the rights of freedom of movement and privacy, such as those proposed by the Co-Prosecutors, should only be imposed if the conditions are necessary to achieve a protective function, the least intrusive means of achieving that function, and proportionate to the function. In the Supreme Court Chamber’s judgment on the appeal (Decision on Immediate Appeal against the Trial Chamber’s Order to Unconditionally Release the Accused Ieng Thirith), it analysed whether each proposed condition met these criteria. It found that, in light of Ieng’s medical condition, it would be unnecessary and disproportionate to retain Ieng’s passport and identification card and to make orders prohibiting her from contacting the other co-accused, witnesses, experts or victims. The Supreme Court Chamber considered the other proposed conditions to be minimally intrusive and necessary to protect the legitimate interests of ensuring Ieng was available to the Court and to monitor her health. By undertaking such an analysis, the Supreme Court Chamber’s ultimate decision balanced the necessity to afford Ieng a fair trial and the interests of society in seeing the alleged perpetrators of the crimes committed in Democratic Kampuchea being brought to justice.

Esther Pearson is an Assistant Editor of the ILA Reporter.

The politics of aggression and its susceptibility to regulation by domestic and international criminal law: Is it an act unsuitable for legal regulation generally? — Sophocles Kitharidis

Introduction

Definitional, jurisdictional and regulatory issues surround the crime (and act) of aggression, and its status as a legal act. This post examines whether the determination of an act of aggression — which is made by the United Nations Security Council (UNSC) and is soon to be justiciable before the International Criminal Court (ICC) — is and will always remain a primarily political (rather than legal) act.

The UNSC has the power to declare an event an act of aggression under the UN Charter (Article 39, Chapter VII). The crime of aggression, on the other hand, will fall within the jurisdiction of the ICC under the Rome Statute in 2017, and concerns:

the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.

Two competing schools of thought exist when it comes to approaching the complex task of interpreting aggression as an act capable of legal regulation. First, there are states that argue that the ICC should be the only institution with the right to exercise jurisdiction over aggression once the UNSC has determined that an act of aggression has occurred (Matthew Gillett, ‘The Anatomy of an International Crime: Aggression at the International Criminal Court’ (2013) 13 International Criminal Law Review 829). Such an approach indicates that the ICC would be in a position to only make determinations about the ‘leadership elements’ of aggression (see Report of the Special Working Group of the Crime of Aggression Doc. ICC-ASP/6/20/Add.1/Annex II). In contrast, the second school of thought argues that there are a lack of existing legal frameworks that demonstrate the contentions of the UNSC in determining and asserting the ICC’s independence and rights protection framework for the accused; after all the ICC is required to adjudicate all elements of the crime of aggression (Davis Brown, ‘Why the crime of aggression will not reduce the practice of aggression’ (2014) 51 International Politics 648). This line of thought leads to the argument that aggression is not regulated by criminal law.

This post argues that although a limited legal framework exists to regulate the crime of aggression (and within a criminal law context), there remain significant concerns. It first discusses aggression in the context of article 5(2) of the Rome Statute. It also sets out legal and policy arguments for why aggression may be considered a political rather than legal act. Finally, it articulates the ramifications of its proposed legal status.

Aggression and article 5(2)

Article 5(2) of the Rome Statute sets out the conditions under which the ICC can exercise its jurisdiction over acts of aggression:

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.

In his submission to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Sir Franklin Berman argued that interpretation of this provision may be that

the reference to aggression in article 5 and, in particular, the last sentence of paragraph 2 of that article, which mentioned the Charter, [is] a reference to the requirement of prior determination by the Security Council that an act of aggression had occurred

This position is reiterated by Meron, (Theodor Meron, ‘Defining Aggression for the International Criminal Court’ (2001) 25 Suffolk Transnational Law Review 1), Zimmermann (Andrew Zimmermann, ‘Article 5’, in Otto Triffterer and Kai Ambor (eds), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Articles by Article) and Scheffer, where Scheffer referred to the provision as opaque due to its nature not indicating whether the ICC can prosecute the crime of aggression absent a prior determination by the UNSC that an act of aggression has taken place (Cited in Carrie McDougall, ‘When Law and Reality Clash — The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court’s Jurisdiction over the Crime of Aggression’ (2007) 7 International Criminal Law Review 277, 280). It is argued that the provision was drafted in order to accommodate both the states that favour the crucial power held by the UNSC to determine the existence of aggression (and therefore the power to regulate its prosecution), as well as states that opposed any ‘special role’ for the UNSC in the prosecution of aggression. In this regard, The Rome Statute interlinks (or at least appears to interlink) with the UN Charter.

Exclusive authority by the UNSC — The importance of UNSC determinations

The UNSC has power to identify an act of aggression pursuant to article 39 of the Charter. The provision states that the UNSC

shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Whilst article 39 provides the legal basis for the characterisation of an act as one of aggression, as outlined below, the making of the determination itself is inherently political (McDougall above 281). In 1991, the International Law Commission provided an opinion on these political dimensions during discussions on the Draft Code of Offences against the Peace and Security of Mankind, asserting that both the crime and threat of aggression can be interpreted as ‘sui generis in that, by definition, they existed only if the Security Council characterised certain acts as such’ (See the Report of the International Law Commission on the Work of its Forty-Third Session).

On this point, Akande notes that the determination of whether a situation is a threat or breach of the peace or an act of aggression is clearly non-justiciable. It cannot be answered by ‘recourse to legal reasoning as there are no legal standards by which to reach a decision. It involves a political decision as to factual ammeters and is in no way constrained by legal considerations’ (Dapo Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations’ (1997) 46 International and Comparative Law Quarterly 309, 338). The UNSC’s interpretative exercise requires an evaluation of facts and an ‘appraisal of the international political situation to see both whether a particular label is justified and whether the interests of international peace and security will be furthered’ (McDougall above 281).

There is obiter commentary by the International Court of Justice that supports the UNSC’s exclusive prerogative to determine aggression. In his dissenting opinion in the Lockerbie Case, Weeramantry held that:

… the determination under article 39 of the existence of any threat to the peace, breach of the peace or act of aggression, is one entirely within the discretion of the Council. It would appear that the Council and no other is the judge of the existence of the state of affairs which brings Chapter VII into operation. That decision is taken by the UNSC in its own judgment and in the exercise of the full discretion given to it by Article 39. Once taken, the door is opened to the various decision the Council may make under that Chapter. Thus any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal. [page 66]

Similarly, the International Criminal Tribunal for Yugoslavia in the Kanyabashi Case made an argument that also applies to aggression, stating that:

… the Security Council has a wide margin of discretion in deciding when and where there exists a threat to international peace and security. By their very nature, however, such discretionary assessments are not justiciable since they involve the consideration of a number of social, political and circumstantial factors which cannot be weighed and balanced objectively by this Trial Chamber. (at paragraph [20])

Consequently, international criminal tribunals recognise that the determination of an act of aggression by the UNSC has a political dimension. Within this political context, the nature of article 39 determinations can also be viewed through the veto power of the UNSC’s permanent five members, which is ‘exercisable in relation to substantive questions’ that include the characterisation of acts of aggression (McDougall above 283). De Wet contends that the ‘structural bias in favour of the major powers is a clear indication that decisions in the interest of peace and security will be based exclusively on (national) political considerations’ (Erika De Wet, The Chapter VII Powers of the United Nations Security Council 134–5. See also McDougall above 283) as well as interests. Kelsen argued that the UNSC is not limited to ‘taking enforcement measures under articles 41 and 42’ as article 39 allows the UNSC to make recommendations ‘of any kind’ (Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems 438. See also McDougall above 284).

Another argument of concern relates to article 103, which states that

[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

The issue is that any Rome Statute provision granting the ICC jurisdiction to determine aggression would conflict with articles 24, which outlines the UNSC’s powers in respect of international peace and security, and 39, ‘which grant the Security Council the exclusive ability to determine the existence of acts of aggression and establish an obligation of the Member States to uphold the Security Council’s rights’ (McDougall above 285). Of further concern is where the UNSC adopts a resolution clearly identifying an act of aggression. Here, and on the basis of article 25, ‘it is claimed that a resolution determining the existence of aggression would be binding on the Member States of the United Nations and therefore all States Parties to the Rome Statute’ (McDougall above 285–6). Consequently, it is arguable that ICC judgments regarding the crime of aggression that reach an alternative conclusion to the UNSC’s resolutions would ‘create inconsistent obligations and therefore be unenforceable pursuant to article 103 of the Charter’ (McDougall above 286).

Policy considerations when determining and regulating aggression

If the determination of aggression is a political rather than legal act, then attention must be paid to the policy considerations driving that determination. These must be viewed through a realpolitik lens (McDougall) since the permanent five members of the UNSC and their allies view UNSC determination as the ‘conditio sine qua non for the inclusion of the crime of aggression’ (Hermann Von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Roy S Lee (ed) The International Criminal Court: The Making of the Rome Statute 84). Scheffer also places a degree of an emphasis on realpolitik by viewing aggression as ‘one crime that other nations may seek to charge our deployed military with, regardless of the merits.’ He views it as a crime that ‘invites political manipulation to serve the interests of whoever regards any projection of military power to be aggressive’ (Quoted in McDougall above 307. See also D D N Nsereko, ‘Bringing Aggressors to Justice: From Nuremberg to Rome’ (2005) 2 University of Botswana Law Journal 5).

There are other interpretations of how the permanent five members of the UNSC can ensure that it possesses the crucial prerogative to determine the occurrence of aggression. First, they desire the ability to protect their leaders from ICC prosecution (regardless of the merits of the legal case). Secondly, they will go above and beyond to protect this privileged status within the international arena ‘in the context of increasing debate about the need for Security Council reform’ (McDougall above 308). Thirdly, they are concerned with the ICC having jurisdiction over the crime of aggression, with their position being ‘premised on a belief that jurisdiction could be a sticking point, ultimately leading to a breakdown in negotiations’ (McDougall above 308). Such politics may see the crime of aggression undermined by the UNSC. The UNSC’s actions concerning aggression are evidence of ‘the legality of the State act element of the crime’; that is, actions leading to a less hostile and more cooperative relationship that provides for ‘resolutions vis-à-vis allegedly aggressive acts’ being drafted by the UNSC and considering future prosecutions (McDougall, 308).

Other policy arguments have been put forward demonstrating that aggression is more a political act:

  1. If the ICC has the right to determine the existence or occurrence of aggression, it undermines the UNSC since it can make the determination in situations where the UNSC failed to make an article 39 determination or taking enforcement measures under Chapter VII; (McDougall above 309. See also Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, at paragraph [61]);
  2. In a situation where the ICC determines the existence of aggression, the UNSC loses its ability to negotiation peaceful settlement of conflicts by offering amnesty; (McDougall above 309. See also Allegra Carroll Carpenter, ‘The International Criminal Court and the Crime of Aggression’ (1995) 64 Nordic Journal of International Law 223);
  3. ‘the ICC is not equipped to consider matters that may lie at the heart of allegations of aggression such as maritime boundaries, the scope of legitimate self-defence under article 51, and the status of self-help remedies under international law’ (McDougall above 309); and
  4. The ICC only possesses jurisdiction over natural persons and not states, so there would be implications for the rights of States (McDougall above 309. See also James Nicholas Boeving, ‘Aggression, International Law and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute’ (2004) 43 Columbia Journal of Transnational Law 557).

Conclusion

This piece has laid bare the political context of a determination of an act of aggression. Determination is a political rather than legal act, in part due to ineffective legal mechanisms in the UN Charter. However, it is also due to the considerations of great powers that wish to protect their privileged status in the international arena. The legal regulation of aggression by the ICC remains hostage to the political decisions of the UNSC, and whilst from 2017 the ICC will have jurisdiction to prosecute the crime, its ability to do so will rest on political decisions in New York rather than evidence tendered in The Hague.

Sophocles Kitharidis is a public international law adviser and consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victoria) and he holds a Master of Laws in Public International Law from the University of Melbourne. 

Tribunal holds hearing on jurisdictional questions in Philippines v China arbitration — Lea Christopher

Introduction

From 7 to 13 July 2015, the Arbitral Tribunal held the first hearing in the arbitration between the Republic of Philippines and the People’s Republic of China in connection with their dispute in the South China Sea.  The arbitration was submitted by the Philippines on 22 January 2013, pursuant to the compulsory dispute settlement provisions under part XV of the United Nations Convention on the Law of the Sea (UNCLOS).  A five member ad hoc tribunal was constituted under annex VII of UNCLOS and sat in the Peace Palace, the headquarters of the Permanent Court of Arbitration, in the Hague. While the hearing was not open to the public, the Tribunal permitted the governments of certain states (Indonesia, Vietnam, Japan, Thailand and Malaysia) to send small delegations as observers.

The arbitration concerns disputes between the Philippines and China in relation to their maritime entitlements in the South China Sea. China has continued to reiterate its position of non-acceptance of (and non-participation in) the arbitration, maintaining that it believes in resolving disputes in the South China Sea via bilateral negotiations and that the arbitration violates previous agreements between the two states. The Philippines has sought to challenge this position at the hearing, submitting that they have pursued a course of bilateral and regional diplomatic efforts to resolve its disputes with China for almost two decades without success. The Philippines says that this has left no recourse other than arbitration.

In its Statement of Claim, the Philippines relies on UNCLOS which, it submits, defines and limits the entitlements of coastal states to a territorial sea, exclusive economic zone (EEZ) and continental shelf (and sets out states’ rights and obligations within those areas).  In particular, the Philippines relies on provisions that provide that a state’s EEZ cannot extend beyond 200 nautical miles from its mainland coast (or any island over which the state has sovereignty) (article 57), and that its continental shelf extends to the same distance (unless it can be established that the state’s continental margin extends beyond that distance) (article 76).

According to the Philippines, China contravenes these provisions by claiming, on the basis of its nine-dash line, ‘historic rights’ to areas that are beyond its 200M limit, including some areas that fall within 200M of the coasts of the Philippines’ main islands.  While China is a signatory to UNCLOS (which enabled the Philippines to commence the compulsory arbitral proceedings), it claims that it does not subscribe to some of its tenets.

However, the purpose of the first hearing was not to decide the Philippines’ substantive claims, but to decide whether the Tribunal has jurisdiction over these claims and whether they are admissible.

The Philippines’ substantive claims

At the hearing, the Philippines outlined the principal substantive claims that it intends to pursue if the Tribunal decides the question of jurisdiction in its favour. They can be summarised as follows:

  1. China is not entitled to exercise its alleged ‘historic rights’ over the waters, seabed and subsoil beyond the limits of its entitlements under UNCLOS.  Its nine-dash line, insofar as it purports to define the limits of China’s ‘historic rights’, is not supported by international law;
  2. The various maritime features relied upon by China to assert its maritime claims in the South China Sea are not islands (as China claims) but are either ‘rocks’ (within the meaning of article 121, paragraph 3 of UNCLOS), ‘low tide elevations’ or are permanently submerged.  While rocks generate an entitlement to a territorial sea of 12M (allowing China to exercise sovereignty over that area), they cannot generate an entitlement to an EEZ or continental shelf beyond that limit (and low tide elevations generate no entitlements).  China’s significant construction activities on various maritime features cannot change their nature in law;
  3. China has breached UNCLOS by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction; and
  4. China’s fishing practices have damaged the marine environment in the South China Sea, including within the Philippines’ EEZ, in breach of UNCLOS. UNCLOS requires states parties to adopt measures to protect the marine environment.

The jurisdictional question

China’s position

In a position paper published in December 2014 (see also a summary of the paper here), China contended that the Philippines’ claims are beyond the scope of the Tribunal’s jurisdiction because they require the Tribunal to make determinations on territorial sovereignty and the delimitation of sea boundaries.

China made three interrelated claims in support of this contention. First, it claimed that UNCLOS does not give the Tribunal jurisdiction to address territorial sovereignty-related questions. According to China, in order to decide any of the Philippines’ claims, the Tribunal would be required to determine, directly or indirectly, the territorial sovereignty over various maritime features in the South China Sea, which is beyond the scope of UNCLOS.

Secondly, it claimed that in 2006, pursuant to article 298 of UNCLOS, China opted out of compulsory arbitration on particular categories of disputes, including those relating to sea boundary delimitations. Article 298(1) provides that, when signing or ratifying UNCLOS (or any time thereafter), a state may opt out of compulsory arbitration with respect to particular categories of disputes, one of which relates to sea boundary delimitations.  Article 298(a)(i) then provides that, when such a dispute arises and no agreement within a reasonable period of time is reached in negotiations, the opted out party must accept, at the request of the other party, submission of the matter to conciliation.

The Philippines has not requested that the parties participate in conciliation pursuant to article 298(a)(a) presumably because, as discussed below, its position is that the dispute does not concern sea boundary delimitations and therefore has not been ‘opted out of’ by China.

The Philippines’ position

At the hearing, the Philippines submitted that its claims do not require the Tribunal to make determinations on the question of territorial sovereignty or the delimitation of sea boundaries (its statement is available here). It emphasised that the Tribunal is really being asked to do the following:

  1. To clarify the nature of the disputed features in the South China Sea (ie, whether they are rocks, islands or low-tide elevations) that are relied upon by China to assert its claims, because the features’ characterisations determine whether they can be appropriated by China or can generate their own 200M EEZ; and
  2. To examine the validity of China’s nine-dash line based on its ‘historical rights’.

According to the Philippines, the question to be determined by the Tribunal on this issue, therefore, is whether UNCLOS allows a state to claim maritime entitlements based on ‘historic’ rights beyond those provided for in UNCLOS.

Accordingly, a key issue in the dispute is whether it is possible for the Tribunal to make determinations about the nature of particular maritime features and their entitlements, without addressing who actually exercises sovereignty over those features. The Tribunal will also need to consider whether it can determine the validity of the nine-dash line without addressing sovereignty over any of the maritime features within the area delimited by the line.

On a higher level, the Philippines painted the case as being a test of the utility and feasibility of UNCLOS compulsory dispute resolution mechanisms. Emphasising China’s ‘aggressive and disconcerting’ activities in the South China Sea, the Philippines contended that the dispute resolution mechanisms give weaker states the opportunity to ‘challenge the powerful on an equal footing’ on the belief that ‘law triumphs over force’. On this basis, according to the Philippines, a finding that the Tribunal lacks jurisdiction to hear its claims would render the UNCLOS dispute resolution mechanisms almost valueless for small states parties vis a vis their more powerful neighbours.

Conclusion

Notwithstanding the Philippines’ contentions concerning the case’s significance to the international community, the jurisdictional questions facing the Tribunal turn on the characterisation of the Philippines’ substantive claims and, in particular, whether they involve the determination of questions of territorial sovereignty.

The Philippines now has until 23 July 2015 to provide supplementary written submissions in response to questions posed by the Tribunal at the hearing. The Tribunal expects to determine the issue of jurisdiction by the end of the year. If it decides that it does have jurisdiction over the Philippines’ claims (and they are admissible), the matter will proceed to a substantive hearing. However, China has reiterated that it will not alter its position in the South China Sea and, therefore, is unlikely to comply with any unfavourable ruling ultimately made by the Tribunal.

Lea Christopher is a lawyer at Clayton Utz in Canberra. The views expressed in this article are solely her own.

International Economic Law Round-Up — Kyle Dickson-Smith

Political Hurdles for International Trade Deals Promote Transparency; Proliferation of Plain Packaging Laws and Associated Disputes

In the last few months there have been several key developments in international economic law:

  • The passage of both the Trans-Pacific Partnership (TTP) and Transatlantic Trade and Investment Partnership (TTIP) has been delayed due to political hurdles between the EU and the US. Local debate in the EU and US as to the benefits and costs of investor-state dispute settlement procedures (ISDS) has also arisen. While the US Congress has passed legislation to assist their adoption of the TPP, the current European political climate has made the future direction of ISDS in the EU unclear; and
  • Norway has announced it will implement standardised cigarette packaging while major tobacco companies have challenged UK plain packaging laws.

Political hurdles for the TTP lifted

After hitting repeated stumbling blocks in US Congress, the Trade Promotion Authority legislation (TPA legislation) eventually made headway. On 25 June 2015, the US Senate approved the TPA legislation and on 29 June the US President signed it into law.

The TPA legislation grants President Obama the power to submit completed trade agreements to Congress for a straight up-or-down vote without the possibility of amendment. The legislation was approved in the Senate late last month, following a debate as to the merits of ISDS.

On the international front, there have been ongoing negotiations in areas of trade and investment, particularly with respect to market access and intellectual property.

The previous ministerial level meetings of TPP member countries were postponed, reportedly due to the TPA legislation not being in place. However, negotiators did meet in Guam to discuss issues of intellectual property, textiles, investment and labour. It is anticipated that the passage of the TPA legislation will facilitate the resolution of the remaining contentious issues in the TPP negotiations, which include tariffs and quota removal on agriculture, with non-tariff barrier reductions on other goods.

While major US labour unions have lobbied against both the TPA legislation and the TPP on the basis that American workers would be detrimentally affected (by, for example, displacing local manufacturing and service sector jobs), business organisations have identified the trade deal as important in ‘levelling the playing field‘ for American businesses.

Political hurdles for the TTIP and ISDS

The European Parliament’s international trade committee (INTA) has outlined a series of recommendations in support of the TTIP’s trade and investment agenda, but the EU’s preferred format of the ISDS mechanism that it will formally propose to the US is far from clear. This follows the EU’s suspension of TTIP trade talks in early 2014 for the purpose of holding public consultations that were prompted by the ‘unprecedented public interest‘ in the negotiations.

INTA has proposed an independent arbitration court with publicly appointed judges and an appellate mechanism. This model is based on proposals from the EU Commission that were released in early May 2015.

The Commission’s proposals addressed the relationship between ISDS and domestic courts, including:

  • the right to regulate in the public interest; and
  • improving the function of arbitral tribunals through, for example, a permanent multilateral court and appellate mechanism to arbitrate investment disputes.

These proposals were based on the ISDS mechanism contained in a trade agreement negotiated between the EU and Canada (CETA) last year. The EU Commission has stated that the CETA ISDS is both innovative in its substance and procedure.

INTA made further recommendations on investment protection provisions, which were reportedly the result of a compromise between the European Parliament’s two largest groups, the Socialists & Democrats and the European People’s Party.  INTA’s recommendations are not binding, but are indicative of whether any agreement would be approved before a full session of the European Parliament.

Tobacco plain packaging

Developments have arisen in the sphere of tobacco plain packaging disputes. In its WTO claim against Australia, Ukraine made a request to suspend proceedings. Australia has supported this request. Ukraine based its decision to suspend its action on limited resources as well as absent ‘economic logic’. Whilst it is not clear how long the suspension will last, under the Dispute Settlement Understanding, Ukraine is allowed up to 12 months before the WTO Panel’s authority will lapse.

Meanwhile, Norway issued a notification under the WTO Technical Barriers on Trade Agreement, that it is proposing a requirement for all tobacco products to be sold in standardised packaging. Norway explained that the proposal will involve ‘uniform layout and design on all tobacco packaging, as well as a ban on manufacturers’ logos, trademarks, images, colours or other forms of advertising’. It is not clear when the new requirements will enter into force.

In the UK, tobacco companies British American Tobacco and Philip Morris have challenged the legality, under both English and EU law, of the UK’s plain packaging laws before the High Court. It is argued that the laws deprive the tobacco companies of trademark rights without fair compensation as well as preventing the free movement of goods.

In a press release, British American noted that it ‘did not ultimately prevail’ in its challenge against Australia’s plain packaging laws in the High Court owing to a ‘unique requirement in the Australian constitution that meant it would only win the case if it could prove the Australian Government had received a benefit by removing its brands’. British American stated that no such requirement exists in the UK.

Kyle Dickson-Smith, FCIArb. is an international lawyer and arbitration counsel at Appleton & Associates International Lawyers, who specialises in trade law and investment treaty disputes, such as the NAFTA. The views expressed in this article are those of Kyle Dickson-Smith and are not attributable to Appleton & Associates.

 

Response to Department of Immigration discussion paper on Australian citizenship – Stephen Tully

The Department of Immigration and Border Protection issued a discussion paper entitled ‘Australian Citizenship – your right, your responsibility’ raising several questions, including whether Australia should deprive Australian mono and dual nationals of Australian citizenship.

This submission by Stephen Tully – a member of the ILA’s National Management Committee – reviews international legal material and the UK’s experience relevant to the questions raised, identifies the applicable prerequisites, standards and safeguards, and considers some possible domestic and international consequences for affected individuals and Australia.  It is available here.

Tully states in the executive summary of his submission that:

  1. Proposals to deprive Australians of citizenship which draw upon legislation taken from the United Kingdom (UK) must appreciate the particular international and national background to that legislation. The UK position cannot be transplanted into the local context without appropriate adaptation.
  2. An outcome which ensures that former Australian nationals are not rendered stateless would be consistent with international law on preventing statelessness. The deprivation of Australian nationality for dual nationals would be consistent with that objective.
  3. The international legal consequences of depriving dual national Australians of their Australian nationality must be understood. Other States may not be obliged to recognise and give effect to the deprivation of Australian nationality by Australia. With respect to both citizenship deprivation and the expulsion of aliens, Australia must also comply with existing international law (on statelessness, nationality and the protection of human rights) in addition to emergent international law concerning the expulsion of aliens.

Plain packaging of tobacco products in the WTO – Globalisation and the increase of tobacco usage – Pauline Wilson

This article is the second in a series that investigates and reports on the disputes over Australia’s tobacco plain packaging measure in the World Trade Organization (WTO).  Plain packaging for tobacco products has been debated intensively in the WTO for over three years and the panel is expected to continue until at least the first half of 2016 (see Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (WT/DS 435, WT/DS 434, WT/DS 441, WT/DS 458, WT/DS 467)) (28 April 2014).

The last article examined the introduction of plain packaging legislation in Australia, the efficacy of the measure and the challenges being brought against it at the WTO.  This article examines the relationship between trade liberalisation and tobacco usage.  In doing so, it highlights the important role of international courts and tribunals, including the WTO Panel and Appellate Body, in maintaining a  coherent international legal system.

Does trade liberalisation contribute to increased tobacco usage?

During the 1980s, the US threatened sanctions and retaliation under the General Agreement on Trade and Tariffs (GATT) against Japan, South Korea and Taiwan unless they opened their markets which were closed to foreign tobacco companies.  In response to this pressure, those countries opened their markets to foreign tobacco companies, increasing their populaces’ tobacco usage.  In 1989, the US challenged Thailand’s 1966 Tobacco Act for placing limitations on American tobacco companies.  A GATT panel found against Thailand in 1990, forcing it to open its market to tobacco multinationals.

These cases illustrate how international trade agreements and state pressure have indirectly facilitated the proliferation of western tobacco in developing countries, which increases rates of smoking.  A report by the World Health Organisation (WHO Report) has found that the link between trade liberalisation and increased tobacco consumption is strongest in low and middle-income countries. The WHO Report also found that foreign direct investment (FDI) leads to higher rates of tobacco consumption.  This is because FDI is an alternative pathway to accessing a foreign market with high barriers to trade.  The finding is in line with basic trade theory, which suggests that liberalising a market will increase competition and efficiency in the supply of a product to that market.  Other factors, including marketing, tobacco advertising, promotion and sponsorship, and the international movement of contraband and counterfeit cigarettes, have also contributed to the explosive increase in tobacco usage.

In order to combat the rise of tobacco consumption and disease globally, governments have employed increasingly strict tobacco control measures.  Australia was in fact not the first country to consider plain packaging for tobacco products.  New Zealand first recommended that cigarettes be sold only in white packs with black text and no colours or logos as early as 1989.  In 1995, the Canadian parliament passed a plain packaging law which was ultimately struck down by its Supreme Court.  Presaging the negative reaction of the tobacco industry to global plain packaging reform, Phillip Morris threatened to reduce future investment in Canada in response to its plain packaging laws.  Upon the release of Australia’s draft legislation, Imperial Tobacco stated it would ‘make every effort to protect its brands and associated intellectual property and … take legal action’.  The approaches of Phillip Morris and Imperial Tobacco reflect the tobacco industry’s general position, which is to pursue every avenue to challenge implementation of plain packaging.

Regional and bilateral free trade agreements provide one such avenue for tobacco control laws to be challenged.  For example, Philip Morris Norway made a challenge under the European Economic Area Agreement against Norwegian bans on the display of tobacco products at the point of sale.

The tobacco industry is also using its rights under international investment agreements to challenge tobacco control and regulation.  In addition to the challenges made under the Australia–Hong Kong bilateral investment treaty, Philip Morris Switzerland recently brought a similar claim against Uruguay, arguing that its tobacco packaging measures violate the Switzerland–Uruguay bilateral investment treaty.

The increase in bilateral and multilateral free trade and investment agreements provides tobacco companies with a resource with which to disrupt reform.

Supporting and internationally coherent legal system

Tobacco companies are seeking redress in domestic courts, international arbitral tribunals and the WTO. The use of multiple fora is contributing to the wider dilemma of ‘conflicting rules and clashing courts’.  This poses the threat of undermining international law generally because its diversification and expansion is leading to ‘the fragmentation of international law’.

Fragmentation is characterised by Pieter Jan Kuijper as a ‘deplorable development’ which is brought about by a decrease in the application of general principles of international law in specialised jurisdictions, including WTO proceedings.  The International Law Commission (ILC), on the other hand, characterised it as a natural consequence of the expansion and specialisation of different areas of international law. Either way, WTO panels and the Appellate Body should be ensure that they interpret opposing norms harmoniously given the dangers of further fragmentation.

The ILC identifies several approaches to establish an internationally coherent legal system.  These include:

  • relationships of interpretation, where one norm assists in the interpretation of another using the Vienna Convention on the Law of Treaties;
  • relationships of conflict, which refers to the case where two norms that are both valid and applicable point to incompatible decisions so that a choice must be made between them; and
  • the principle of harmonisation, which is a generally accepted principle that when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations.

As providing security and predictability to the multilateral trading system is an overarching goal of WTO dispute settlement, it is important that this forum is able to harmonise the conflict between international trade and domestic and global health policy.

The Framework Convention on Tobacco Control (FCTC) is important to the harmonisation process as it clarifies existing standards and key protections in relation to public health and tobacco control.

The entry into force of the FCTC in 2005 was a decisive moment for global tobacco control. It is an evidence-based treaty developed in response to the globalisation of tobacco consumption and related harm. Ratifying the FCTC places all parties under an obligation of good faith (pacta sunt servanda) to abide by the minimum legal standards outlined in the treaty and to not to undermine the objectives set out in it. In addition to minimum commitments, parties are ‘encouraged to implement measures beyond those required by this Convention and its protocols’. This is further supported by the object and purpose of the FCTC, which states that the parties are ‘determined to give priority to their right to protect public health’. As of 2015, there are 180 parties to the FCTC in contrast to the WTO with 161 members. In fact, there are just eight WTO members not party to the FCTC, two of which are challenging Australia’s measure.

Another solution may lie in mechanisms found in non-WTO treaties with trade related aspects, including multilateral environmental agreements (MEA). The Cartagena Biosafety Protocol to the Biodiversity Convention — which has seven more signatories than the WTO — not only has a provision relating directly to trade and environmental agreements, but also advances the principle of mutual supportiveness. This is a principle by which international legal rules are to be understood and applied as reinforcing each other with a view to fostering harmonisation and complementarity, as opposed to conflicting relationships.

So far, no action affecting trade and taken under an MEA has been challenged in the WTO system.  However, the WTO Trade and Environment Committee recognises that MEAs provide internationally agreed solutions for trade problems, which it says better than one country trying to change another countries’ environmental policies on its own.  It is possible that the principle of mutual supportiveness, and other trade facilitative measures, can assist the WTO Panel and Appellate Body to interpret WTO provisions in a fashion which supports international legal coherence.

The next article in the series will look at how the FCTC should be used to interpret Australia’s obligations under WTO law in a manner which is consistent with general international law.

Pauline Wilson recently graduated from an LLM at the University of Amsterdam with a focus on international trade and investment law. Prior to that she graduated from the ANU with a combined Bachelor’s of Arts and Law.

Release of Amnesty International report on incarceration of Indigenous children

On 2 June 2015, Amnesty International published A brighter tomorrow: keeping Indigenous kids in the community and out of detention in Australia. A copy of the report can be accessed here and the summary is available here. As its name suggests, the report is a roadmap for the Australian government to improve its efforts to reduce the number of young Indigenous Australians incarnated in Australia.

This post focuses on the first four of the report’s 16 recommendations. These have been selected because they relate to Australia’s international treaty obligations. These recommendations also have relevance beyond the sphere of indigenous incarceration as they concern potential incompatibilities between criminal legislation in states and territories and Australia’s international obligations.

The report’s first four recommendations can be distilled into two categories. The first recommends that the Australian government legislate to override state and territory laws that do not conform with the Convention on the Rights of the Child (CRC). Amnesty International says that this would encompass laws which:

  1. do not allow courts to observe the principle that detention is a measure of last resort for any person up to and including the age of 17 (including, for example, section 9 of the Youth Justice and Other Legislation Amendment Act 2014 (Qld));
  2. impose a mandatory minimum sentence on a child or young person up to and including the age of 17 (for example, the Australian Criminal Code Act 1913 (WA));
  3. treat a child or young person up to and including the age of 17 as an adult for the purposes of criminal prosecution (such as the Youth Justice Act 1992 (Qld)); and
  4. treat a person below the age of 12 as criminally responsible, noting that the principle of doli incapax continues to apply up to the age of 14 (which Amnesty International says occurs Australia-wide).

The second category of recommendations concerns Australia’s status with respect to the CRC and the Convention Against Torture. Amnesty International recommends that Australia:

1. withdraw its reservation to article 37(c) of the CRC

Article 37(c) provides, inter alia, that, ‘every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so…’.

Australia accepts this part of article 37(c) ‘only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia’

Amnesty International says that Australia’s reservation results in the imprisonment of adults with children and refers to recommendations of the Committee on the Rights of the Child to have the reservation withdrawn (see CRC/C/15/Add.268 at [7] and CRC/C/AUS/CO/4 at [9])

2. ratify the Optional Protocol to the Convention Against Torture

The Optional Protocol provides for a system of regular visits by independent international and national bodies to participating states to prevent torture and other cruel, inhuman and or degrading treatment or punishment.

3. become a party to the Third Optional Protocol to the CRC, which establishes an individual complaints mechanism     for children.

Whereas the second category of recommendations can be practically implemented by the Australian government, the suggestion that the Commonwealth override state laws raises controversial questions. The report provides little information as to how the Commonwealth should implement those first category recommendations by overriding state and territory legislation that is inconsistent with the CRC. The Commonwealth could pass legislation that relies on its powers under section 51 (xxix) of the Australian Constitution to make laws with respect to external affairs. However, such targeted assaults on state and territory jurisdictions would be unwelcome and likely resisted. A more consensus-driven approach whereby the states and territories themselves bring their laws into line with the CRC would likely be more successful, but would require effort from all levels of government. Certainly, Amnesty International’s report would have benefited from an increased focus on implementing solutions in this area.

Nonetheless, the report provides important food for thought about how Australia’s international obligations can be the impetus for domestic action that improves outcomes for indigenous young people.

Export of legal services in Asian Markets: the Indian context — Molina Asthana

Introduction

Asialink Business’ latest research report — Australia’s Jobs Future: The rise of Asia and the services opportunity — produced in collaboration with ANZ and PwC, demonstrates that by 2030, services can become Australia’s number one export to Asia in terms of total value added, supporting a million Australian jobs in the process.

The export of professional services, including legal services, are also expected to rise. However, there are barriers faced by legal service providers who wish to operate in Asia, including nationality and residency requirements, limited recognition of Australian qualifications and limits on foreign investment in local firms.

Australia–China Free Trade Agreement

The conclusion of a comprehensive free trade agreement (FTA) with China (ChAFTA) is likely to lead to a surge in the export of services (although the final FTA is yet to be signed). China has offered Australia the best services commitments it has ever provided in an FTA (with the exception of China’s agreements with its Special Administrative Regions — Hong Kong and Macau). Most importantly, they include new or significantly improved market access for Australian services, including legal services (see the factsheet prepared by DFAT on ChAFTA’s key outcomes). Australian law firms will be able to establish commercial associations with Chinese law firms in the Shanghai Free Trade Zone. This will allow firms to offer Australian, Chinese and international legal services with a commercial presence in China, without restrictions on the location of clients.

ChAFTA also includes a framework to advance mutual recognition of services qualifications and to support mutual recognition initiatives by professional bodies in Australia and China. This is not the case with other Asian countries, where barriers continue to exist and hinder negotiations for the conclusion of FTAs.

Relationship between the Australian and Indian legal sectors

Through my own involvement in building the Australian–Indian relationship in the legal sector, I am aware that there is an interest on the part of law firms, universities and judiciaries in both countries to develop deeper ties. However, international law firms and practitioners are faced with huge barriers if they intend to set up business or practice in India.

With the growing trade between the countries, and India becoming an important international market, it will be necessary to have lawyers with expertise in both jurisdictions or for clients to have easy access to experts in both jurisdictions.

Because Australia and India are both common law countries, it should be easier for lawyers to transfer their skills across jurisdictions and make positive contributions to each’s legal systems.

The legal market in Australia is comparatively more open. However, from the perspective of the Indian legal sector, that comparative openness is largely academic; it is unlikely that Indian legal firms would be in a commercial or strategic position to enter the Australian market. There are no restrictions on establishment of foreign firms in Australia and foreign lawyers are allowed to work in Australian firms, provided they do not give advice on Australian law or profess to hold local qualifications. Australia’s accreditation requirements for foreign practitioners are still quite onerous, with up to 12 subjects and a year of practical training required before being permitted to practice in an Australian jurisdiction (See the Law Council of Australia’s publication on the admission of foreign practitioners).

On the other hand, the Indian market is much more restrictive: neither joint ventures nor foreign direct investment (FDI) in the legal sector is permitted. Foreign law firms have to largely rely on fly-in-fly-out arrangements and work with Indian law firms. In addition, foreign firms are not permitted to represent local clients in India. The accreditation requirements for foreign practitioners wishing to work in India can also be quite onerous (see this summary of the qualification process prepared by the International Bar Association).

Given these restrictions, it is imperative that wide-ranging reform be undertaken to open up the Indian legal market so that foreign firms can establish local offices and foreign lawyers can practice within India. There is also a continuing need for mutual recognition of academic legal qualifications that allows for the free movement of legal experts.

Towards deeper Australia–India legal ties

The Indian Department of Commerce has recommended a two-phase road map for the liberalisation of the legal professions. The reforms are discussed in detail here.

The first phase would include domestic regulatory reforms, implemented simultaneously with the opening of international arbitration and mediation services in foreign investment law and international law practices. Phase Two would include opening up non-litigious and non-representational services in Indian law.

However, there remains strict and ongoing opposition to FDI and third party ownership of law firms. Further, reservations continue against foreign firms who have third party non-lawyer funding from entering the Indian legal market. There is also hesitancy in respect of multi-disciplinary practices from entering the legal sector, including the ‘Big Four’ accounting firms.

The issue of reciprocal access for Indian lawyers is to be clarified at a later date.

Approval has been given for the implementation of the LLP structure in India, as well as permission for law firms to issue brochures, open websites and access bank finance. An increase in professional indemnity limits has been agreed to in-principle by representative bodies of the Indian Bar.

Deeper ties between would also be fostered if lawyer had the ability to go for internships or secondments at law firms in the other country. Thankfully, the road map also seeks to address this issue.

Despite these recommendations a lot remains to be done before it can be said that the Indian legal market is ‘open for business’. The Department of Foreign Affairs and Trade (DFAT) is working on finalising an FTA between Australia and India and the legal sector is one of the areas that it will address. To support this process, I have made a formal submission to DFAT suggesting a collaborative approach be adopted and that this be based on professional gains, academic gains, sharing of judicial advancements and commonality of legal systems. My submission will be available on the DFAT website shortly and this post will be updated to include the link when it is live.

Molina Asthana is a Principal Solicitor with the Victorian Government Solicitor’s Office. She is the President of the Victorian Chapter of the International Law Association, Chair of the International Law Section of the Law Institute of Victoria and Treasurer of the Asian Australian Lawyer’s Association. She has significant experience in the Indian jurisdiction.

Case Note: Application of the Convention on the Prevention and Punishment of Genocide – Sarah Fitzgerald

Introduction

In February, the International Court of Justice handed down its decision in Application of the Convention on the Prevention and Punishment of Genocide (Croatia v Serbia) and concluded that Croatia and Serbia did not commit genocide during the events of 1991–95 after the break up of the Socialist Federal Republic of Yugoslavia (SFRY). The proceedings were brought by the Republic of Croatia in 1999, with Serbia filing a counter-claim in 2010, resulting in a 16 year court case and a lengthy judgement (with an outcome considered by one commentator as virtually inevitable) that ultimately dismissed both parties claims of genocide. Whilst many commentators question the point of the case (neither Serbia and Croatia wanted to withdraw due to political pressure) and lawyers on both sides privately expressed little expectation of winning prior to judgment, the decision does provide some interesting comments on the application of the Genocide Convention and is a reminder of the narrowness of the legal definition of genocide.

History

After the break up of the SFRY, approximately 20,000 people are thought to have died and millions displaced, during the 1991–95 conflict. The International Criminal Tribunal for the former Yugoslavia (ICTY) has not charged any former leaders from Serbia or Croatia with genocide. It has previously ruled that genocide occurred in Bosnia at Srebrenica (where 8,000 Bosnians were killed over a number of days), but found that Serbia was guilty of failing to prevent genocide and punish the perpetrators.

Notable legal arguments

The claim was brought under the Genocide Convention, and the Court found that the crime of genocide consists of the actus reus (physical element) and mens rea (mental element) which must constitute dolus specialis (specific intent). Regarding intent, the Court stated that

‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’ is the essential characteristic of genocide, which distinguishes it from other serious crimes.

It is regarded as a dolus specialis, that is to say a specific intent, which, in order for genocide to be established, must be present in addition to the intent required for each of the individual acts involved. (at paragraph 132)

Croatia argued that its attacks were not indiscriminate and did not violate international law. Serbia argued that even if attacks had been conducted in compliance with international humanitarian law, they could still constitute the actus reus of genocide.  The Court however, stated that they would not ‘rule, in general or abstract terms, on the relationship between the Convention and international humanitarian law’ (at paragraph 153) and held that they did not have the power to determine disputes relating to obligations under customary international law (or international humanitarian law or international human rights law).

The Court considered Croatia’s claim and found that members of the ethnic group (in its pleadings Croatia defined the group as the Croat national or ethnical group on Croatian territory not contested by Serbia) had been killed by or suffered serious mental or bodily harm from Serb forces, constituting the actus reus element.  Other claims put forward by Croatia, such as deprivation of food and medical care, were not established by Croatia and therefore did not constitute the actus reus element.

The Court found that members of the Serbian group had been killed or suffered serious mental or bodily harm, also constituting the actus reus element. However, other claims put forward by Serbia of looting and the destruction of property, did not constitute the actus reus element.

Ultimately, dolus specialis was missing from both parties’ claims. The Court said at paragraph 440 that such intent must be ‘the only reasonable inference that can be drawn from the pattern of conduct it relied upon was the intent to destroy, in whole or in part, the Croat group’. This ‘only reasonable inference’ requirement sets a high bar, and the Court found that Serbia’s assault on Vukovar was to expel the Croats, not destroy, and Croatia’s expulsion of Serbs in Krajina was also missing the specific intent to destroy.

Serbia also put forward an argument about ICTY case law, contending that decisions by the Appeals Chamber of the ICTY should not be given more weight than the Trial Chamber’s. Serbia used the Gotovina case as an example: the Trial Chamber was unanimous in their conviction, but the Appeals Chamber acquitted by a majority of three to two, meaning that a majority across the Gotovina case judged Croatian forces guilty. Unsurprisingly, the Court rejected Serbia’s argument and found at paragraph 471 that they must give greater weight to the Appeals Chamber Judgement, whilst ‘ultimately retaining the power to decide the issues before it on the facts and the law’.

The Court also discussed the weight to be given to charges of the ICTY. Serbia considered that the Court should accord it some degree of probative value, but Croatia said that as the Prosecutor has discretion to determine what charges to bring, that does not mean that there is no evidence for the existence of a different charge.  The Court did state however that they could not

fail to note that the indictment in the case of the highest ranking defendant of all, former President Milosevic, did include charges of genocide in relation to the conflict in Bosnia and Herzegovina, whereas no such charges were brought in the part of the indictment concerned with the hostilities in Croatia. (at paragraph 187)

Dissent

Judge Trindade’s dissent (which was almost as long as the judgment itself, and concluded with a quadragesimus quintus point summary) should be noted, as he largely used the principle of humanity as a basis for arguing that the acts constituted genocide. There is a detailed analysis by Professor Dov Jacobs of that dissent here, which notes the irony of using ‘facts and values’ to conclude that genocide occurred, when ‘values’ and ‘conscience’ are used by many as justification for genocide.

Future relations

The judgment cannot be appealed and the Court’s final statement at paragraph 523 encourages ‘the Parties to continue their co-operation with a view to offering appropriate reparation to the victims of such violations, thus consolidating peace and stability to in the region’. Croatia became a member of the European Union in 2013 and now supports Serbia’s application for membership. However, one obstacle to Serbia’s application is the resolution of wartime issues, including the extradition case of Australian citizen Daniel Snedden, wanted in Croatia for crimes committed during 1991–93.

High Court the final avenue for Australian war crimes suspect Daniel Snedden

A former ICTY prosecution witness against the late Serbian President Slobodan Milosevic, Daniel Snedden (also known as Dragan Vasiljkovic) is wanted by Croatian authorities on charges of three war crimes offences alleged to have occurred during his time commanding a ‘special purpose’ Serbian paramilitary unit between 1991 and 1993. Mr Snedden is alleged to have commanded troops who tortured and killed prisoners of war and to have commanded an assault where civilians were killed.

Mr Snedden has been held in Australia and has challenged his extradition for over eight years, with the Federal Court dismissing the latest appeal. Mr Snedden’s lawyers are filing an application to the High Court to review procedural fairness and the Minister’s interpretation of the Geneva Conventions. Mr Snedden’s lawyer, Dan Mori (who previously represented David Hicks), said that his main concern is that Mr Snedden will not be protected by the Geneva Convention upon return to Croatia. Mr Mori has previously said that he was intrigued by Mr Snedden’s case

because it raises issues about the fairness of having an extradition process that does not require the requesting country to provide any evidence. So, based on a 15-page document, someone has been locked up for almost eight years.

The High Court application is not likely to be determined for a number of months.

Sarah Fitzgerald is a solicitor at an international law firm in Sydney. She has previously interned at the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia.

A Reply to a Reply: In Defense of Dworkin’s New Theory of International Law – Dan Svantesson

Background

The late Ronald Dworkin requires no introduction; few, if any, contemporary law scholars have so profoundly influenced legal thinking.

Here, I will focus on the gift Dworkin left us in the form of a new philosophical framework for international law published posthumously, A New Philosophy for International Law (published in (2013) 41 Philosophy and Public Affairs 2).  More specifically, I will seek to offer some defense for Dworkin’s theory against the attack it came under in Adam Chilton’s A Reply to Dworkin’s New Theory of International Law (published in (2013) 80 University of Chicago Law Review Dialogue 105).

The essence of Dworkin’s philosophy of international law

In A New Philosophy for International Law, Dworkin sets out to (a) bring attention to the weaknesses of how legal positivism approaches international law; and (b) propose a better alternative.

Dworkin shows us that ‘consent’ cannot furnish an international rule of recognition like the standard positivist account would have us believe.  For example, he notes:

But the scheme has several defects as a proposed rule of recognition that are finally fatal. First, it offers no priority among the different sources it recognizes. Must treaties yield to general practices? Or vice versa? More important, though it is founded on the idea of consent, it sometimes binds those who have not consented. It offers no explanation why states that have not accepted a rule or principle as law may nevertheless be subject to it because the bulk of other states, or of ‘civilized’ states, have accepted it. It offers no standard for deciding how many states must accept a practice as legally required before the practice becomes ‘customary’ and therefore binding on everyone. It offers no guidance as to which states are sufficiently civilized to participate in that essentially legislative power. Or which norms are peremptory. (at 6–7)

Dworkin’s own proposal is that we abandon the idea of consent as the international law rule of recognition in favor of a framework centered on what he terms the principle of salience:

If a significant number of states, encompassing a significant population, has developed an agreed code of practice, either by treaty or by other form of coordination, then other states have at least a prima facie duty to subscribe to that practice as well, with the important proviso that this duty holds only if a more general practice to that effect, expanded in that way, would improve the legitimacy of the subscribing state and the international order as a whole. (at 19)

Chilton’s criticism

Chilton’s claim is nothing less than that Dworkin’s theory may be ‘fatally flawed’.  In support of this, he brings attention to what he claims to be three ‘flaws’, or ‘major shortcomings’, in Dworkin’s theory.  I will here discuss and seek to refute each one of those claims.

Chilton’s first claim

The first of the argued flaws identified in Chilton’s reply to Dworkin is as follows:

Professor Dworkin does not provide an explanation of what, if anything, should give when domestic preferences and international obligations are in tension. Professor Dworkin reasonably argues that, for a state to be legitimate, citizens must play some ‘role in their own government.’ […] Given that Professor Dworkin argues that political legitimacy requires giving people a voice in their government, what is unclear in Professor Dworkin’s theory is whether elected officials are still required to comply with international law when it is against the preferences of their citizens to do so. (at 110–111)

In relation to this, Chilton offers Dworkin two options he views as ‘permissible’ under Dworkin’s theory:

The first answer would be that legitimate governments —which Professor Dworkin claims must give citizens a voice — are not obligated to obey international law that their citizens do not support. The obvious problem with this answer is that, if legitimate governments are only obligated to comply with international laws they support, it is difficult to see how there would be much daylight between Professor Dworkin’s theory and the theories of international legal obligation based on consent that he so forcefully argues against. The second answer would be that elected officials are still required to comply, even if their citizens do not support compliance. […] Having this obligation rest with the elected officials and not the citizens, however, requires an argument for cosmopolitanism at the expense of democracy that may do more to undermine political legitimacy — one of the principles motivating Professor Dworkin’s theory — than the principle of salience he supports. (at 112)

I suspect Chilton’s failure here may be attributed to his commitment to a binary — black or white — approach to a landscape rich in nuances.  The better view is to consider the consent model of legal positivism as one end of the spectrum, with a slavish obligation to follow any and all international law, no matter what, on the other.

On my reading, Dworkin positions himself somewhere between these two extremes in speaking of a ‘prima facie duty’; thus, Dworkin need not adopt the one extreme position to avoid being associated with the other.  His analysis is more nuanced, indicated by the considerations that he outlines that must be taken into account in the interpretation of international law:

The correct interpretation of an international document, like the UN Charter, is the interpretation that makes the best sense of the text, given the underlying aim of international law, which is taken to be the creation of an international order that protects political communities from external aggression, protects citizens of those communities from domestic barbarism, facilitates coordination when this is essential, and provides some measure of participation by people in their own governance across the world. (at 22)

In light of this, Dworkin could, at the most, be accused of not having fully canvassed how these underlying aims ought to be balanced when a state is assessing its prima facie duty under the principle of salience.  However, he does offer us one tool for this; that ‘[t]hese goals [the underlying aims of international law outlined above] must be interpreted together: they must be understood in such a way as to make them compatible.’ (at 22)

Perhaps Dworkin’s principle of salience is easier to understand if re-worded, and fleshed out, such as the following:

1.—-If a significant number of states, encompassing a significant population, has:

– developed an agreed code of practice, either by treaty or by other form of coordination; and
– a more general practice to that effect, expanded in that way, would improve the legitimacy of the subscribing state and the international order as a whole,

2.—-then other states have at least a prima facie duty to subscribe to that practice as well.

2.—-In assessing whether such a duty exists, states should take account of the underlying aim of international law to create an international order that:

– protects political communities from external aggression;
– protects citizens of those communities from domestic barbarism;
– facilitates coordination when this is essential; and
– provides some measure of participation by people in their own governance across the world.

3.—-These goals of the underlying aim of international law must be interpreted together and must be understood in such a way as to make them compatible.

Chilton’s second claim

Chilton’s second objection is that ‘Professor Dworkin’s theory does not provide an account of why states should be bound by international law when the coordination problem that states face is not a prisoner’s dilemma.’ (at 112)  In relation to this, Chilton adopts a topic originally used by Dworkin ­— that of global warming — and asserts that while some states may suffer from global warming, other states may gain, thus taking the situation outside the classic prisoner’s dilemma.

Having taken us this far, Chilton demonstrates that the issues that flow from this are not particularly different to the first objection he raised:

The natural question, of course, is whether compliance should still be demanded in cases where a given state stands to lose from coordination. As with the last objection I raised, the options available to Professor Dworkin’s theory similarly appear to be either to allow states not to comply when it would not be in their interest to do so, or to demand that states comply even if it were against their interests. (at 113)

In light of this, we may instantly score a point for Dworkin by noting that, in fact, this so-called second flaw is indeed nothing but the other side of the coin of the first asserted ‘flaw’. In this we have eliminated one third of Chilton’s objections, and we may legitimately recycle the answer provided to his first objection — the participation by people in their own governance is one consideration in the balancing of a set of considerations when a state assesses its prima facie duty under the principle of salience.

In addition, there is something unwholesome about Chilton’s broad claim that some states may stand to gain from global warming.  At a minimum, it seems rather speculative.  After all, is it not possible that the destruction of the environments of some states will negatively impact the people of other states, for example, through refugee problems?

Chilton’s third claim

Chilton’s third claim is that, given that generating new sources of international law is a repeat game

if Professor Dworkin’s theory of how sources of international law should be interpreted was taken seriously by international courts and organizations, it would run the very serious threat of causing states to be unwilling to negotiate robust agreements in the future. (at 113)

He proceeds to explain in more detail that

if states begin to be held to more demanding standards than they thought had previously been agreed upon, in future negotiations those states would have strong reasons to block even weak language in international agreements to avoid it being held against those states later on. (at 113–114)

The first, and most obvious, problem with this proposition is that it assumes that states have a clear and precise interpretation in mind of what is agreed to at the time an international agreement is formed.  Given the vague and general language characteristic of many international agreements, this proposition does not survive even the slightest scrutiny.  On a sober-minded assessment of the real state of things, it is clear that the vague language common in international agreements may always be a source of interpretive contention irrespective of what method of interpretation one adopts.

Where the above is accepted, we may in fact turn the second part of Chilton’s third claim in favour of Dworkin’s theory.  Chilton correctly asserts that

the weight of the empirical evidence suggests that the reason international law helps to improve human rights is not because of international interpretations or enforcement, but instead because domestic political actors are able to use prior international commitments as powerful political tools when lobbying their government for change. (at 114)

To the extent that Dworkin’s theory provides for a more expansive interpretation of international law, it should make international law a more potent weapon in the hands of those domestic political actors that use prior international commitments as political tools when lobbying their government for change.  The trick is, of course, to ensure that the strength of international law is such that it does not scare off states, yet is strong enough to be useful both as a tool for domestic lobbying and for international enforcement.

Concluding remarks

Chilton’s complaint is a storm in a teacup and the ‘three flaws’ he attacks lack sting. Further, given the above, I cannot agree with the conclusion reached by Laurisha Cotton (available here) at an American Society of International Law event that ‘it is unlikely that Dworkin[’s] late work will change the dynamics of philosophy in international law.’

No doubt change will not happen overnight, but I suspect (and hope) that through A New Philosophy for International Law, Dworkin has planted a seed that over time will develop and eventually blossom.

Dan Jerker B Svantesson, Professor and Co-Director, Centre for Commercial Law, Faculty of Law, Bond University; Researcher, Swedish Law & Informatics Research Institute, Stockholm University; Australian Research Council Future Fellow. The views expressed herein are those of the author and are not necessarily those of the Australian Research Council.