The Inflows of Illegal Maritime Arrivals amidst the Financial Crisis of Sri Lanka: Analysing the Loopholes in the Protection Mechanisms of Australia

Background 

Illicit boat entry from Sri Lanka (SL) to Australia is not a new phenomenon, as it was highly prevalent before the end of the Sri Lankan Civil War in 2009 and in the immediate aftermath. SL was among the top four source countries from which illegal attempts to enter Australia had been reported by 2012. 736 Sri Lankan boat migrants arrived in Australia at the end of the war. Between  2011 and 2012,  825 cases of  illegal attempts were reported. Illegal Maritime Arrivals (IMA)s are unauthorised people who enter a country by unseaworthy boats. Even though border security measures to prevent this phenomenon were adopted by the two countries, a sudden resurgence has become evident due to the ongoing financial crisis of the country. More than 1,000 Sri Lankan people attempted to enter Australia by boats this year. According to the Australian Border Force (ABF), the highest number of boat entries in a single month was reported in June.  

SL is currently undergoing the worst economic crisis that the country has experienced since its independence. This unprecedented economic turmoil was highly backed by the economic mismanagement of the country’s leadership that caused the shortage of foreign exchange, fuel, electricity, medicine and inflation, followed by the high price factor. Since this situation has affected persons’ livelihoods, many people began to leave the country to meet their necessities in countries like Australia. These activities are being taken place outside the regulatory standards of migration, which are highly intertwined with people smuggling. The Protocol against the Smuggling defines smuggling as ‘to obtain, directly or indirectly, a financial or other material benefits, of the illegal entry of a person into a state party of which the person is not a national or a permanent resident.’ Routes of people smugglers frequently start from Negombo in the west of SL to Batticaloa and Trincomalee in the East; from Galle, Mirrissa and Hambantota in the South to Point Pedro in the North in SL. Importantly, the criminalisation of people smuggling invokes a criminal perspective to this humanitarian issue. 

The Grey Areas in Australian Law

The ABF has already made assurances that the government will not ease the ‘Zero Chance’ for illegal entries even amidst the ongoing financial crisis of the country. In June, Australia also started to fund GPS tracking devices on fishing boats to prevent entries. Nevertheless, Australia is obliged to international norms that comply with the International Convention for the Safety of Life at Sea and the International Convention on Maritime Search and Rescue, which prohibit turning back unseaworthy boats to places where people are placed at risk. In that sense, Australia’s deportation needs to ensure that the individuals can be safely sent back to a country where their life or freedom will not be threatened. But the scope of ‘freedom’ is highly framed to the war scenarios and does not address the freedom of making economic choices.  

Meanwhile, Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT) and the Convention on the Rights of the Child (CRC) which prohibit the arbitrary detention of protection seekers. Australia’s Migration and Maritime Powers Legislation Amendment Act in 2014 expanded the Australian executive powers to intercept, detain and transfer IMAs outside the territory. With regards to the interception at sea,  though articles 19, 21 and 33  of the of the United Nations Convention on the Law of the Sea (UNCLOS) permit the authorities to allow ‘innocent passage’ by ships through their territorial waters, there is always an exception for the people who infringe  immigration laws of the coastal states. In this context, a vessel containing asylum seekers face high risk of detention as they are intending to infringe the immigration laws. 

  But it is questionable that such measures are legitimate, as IMAs including asylum seekers who seek protection in other countries.  This reality also applies to IMAs who ask asylum because of economic recession in the home countries. On the other hand, neither of the smuggling Protocol nor UNCLOS monitor the conditions of interceptions, detention or deportations and only lies on the domestic apparatuses. Most importantly, the fifth International Convention on Safety Life at Sea 1974 (SOLAS Convention 1948) ratified by Australia has ascertained the obligation of the state to provide Search and Rescue (SAR) services on the sea.  These practices often lead to the detention of IMAs for prolonged time periods.  

It is mandatory for IMAs to undergo screening processes to determine their claims. In relation to this, and ‘enhanced screening process’ has been applied to all IMAs from SL. But when it comes to the implementation, IMAs are deported under the border security measures of Australia without screening them. As an example, section 197C of the Migration Act1 also indicates that decision to remove illegal immigrant can be taken irrespective of whether Australia has non-refoulement obligations towards them. The principle of non-refoulement forbids states from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill treatment or other serious human rights violations. It also applies to the violation of the rights to life, integrity or freedom of people and inhuman and degrading treatments. The section 197C says illegal immigrants who are in the detention and who have exhausted their visa needs to be remove ‘as soon as practicable’ even if this would breach Australia’s non-refoulement obligations. This provision has inevitably resulted in the arbitrary detention as the section 189 of the Migration Act mentions that a person who has not been granted a visa is subjected to mandatory detention that may be indefinite where no safe country ready to accept the person can be found. These provisions were also assured by the decision of the High Court case Commonwealth of Australia v AJL20 [2021] HCA 21 which held that the key objective of this act is to regulate the entries and the presence of non-citizens in Australia and detain illegal immigrants for the purposes of removal or deportation. The High Court also noted that since the detention intertwines with such purposes, the terms’ reasonably practicable’ does not offer a specific time period on detention. The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 which was introduced by the Australian government tighten its national security concerns more.  In this regard, the amendment permits the government to detain illegal immigrants indefinity, where it had cancelled the visa of them but could not send them back to their home country as they would face persecution there. 

Concerning the detention of IMAs, in  CPCF v Minister for Immigration and Border Protection [2015] HCA 1, the High Court of Australia held that the detention of the IMAs is not incompatible with the law of Australia, as it remains within the extent of the powers granted on Australian officials under the Maritime Powers Act 2013. On the other hand, section 36 of the Migration Act has introduced an entry fiction deeming persons arriving in Australia without authorisation to have not ‘entered Australia. In another words, section 36 of the Migration Act sets out the grounds for granting a protection visa. In this case, the section 36 (2B)(c)  of the Migration Act deems that a applicant will not satisfy the criteria for a protection visa if ‘the real risk is one faced by the population of the country  and is not faced by the non-citizen personally’.

Inter-state Approaches and the Legal Procedures in Sri Lanka  

The above discussion shows that there is a minor space available in the legal context of Australia in processing protection claims. It has been commonly applied to all IMAs regardless of the people who flee from war scenarios or economic crisis. Within this context, the government of Australia has been tightened its border security measures with SL. It is a well-known fact that the  ‘Operation Sovereign Borders’ (OSB) of the ABF interconnects with 16 Australian government agencies and international partners, including SL. Although the readmission agreement between SL and Australia remains outside public scrutiny, the two counterparts have developed border security cooperations, including the Australia-SL Joint Working Group on People Smuggling and Other Transitional Crime, followed by the Memorandum of Understanding (MOU) signed between the countries in 2017 to tackle the illegal arrivals. In this context, the government of Australia recently provided $50 million AUD aid to the country as the country faces its worst economic crisis. Moreover, an ABF Vessel ‘Ocean Shield’ returned 46 Sri Lankans who made effort to move to Australia illicitly. They were apprehended on 21 July (2022), and interestingly this was the first time the repatriation was operated by an ABF vessel. Furthermore, the issue of IMAs has been often politicised by successive Australian governments to gain political advantages. For instance, a spokesperson of the Liberal party admitted sending out text messages to voters on election day in May 2022 that some IMA boats that were headed for Australia were intercepted. The spokesperson also stated that the Sri Lankan Navy stopped a boat and 40 people on board were detained. 

As per sections 45, 45A and 45C of SL’s Immigration and Emigration Act No. 20, illegal departures of people have been viewed as a criminal activity. Particularly, section 45C of the Act has mentioned that any person who facilitates persons to leave SL illicitly is guilty of an offence and this offence entails a minimum mandatory sentence of one year of imprisonment that can be extended up to five years. The imprisonment is granted in terms of the transportation of persons by sea, land or any other manner without obtaining valid travel documents. But there are no specific laws available under the Immigration and Emigration Act that address the protection needs of the victims of smuggling. In accordance with the Act, the returnees who are being taken into the custody of the Sri Lankan Criminal Investigation Department are also required to undergo the prosecution. As an example, the Act has highlighted that any person who organises one or more persons to leave SL in contravention of the provisions of the Act shall be guilty of an offence and upon conviction be liable to imprisonment of either discerption for a term of not less than three months and of not more than five years.  

Conclusion 

Understandably, the border security measures of Australia signify the migration issue as a fundamental element of national governance and of regional cooperation. Therefore, international norms on the protection of asylum seekers have been partially practiced within the domestic context. In this regard, deportation or prolonged detention of IMAs cannot be identified as an effective solution to this issue. In other words, those measures do not address the root causes of the problem. Hence, the granting of Temporary Protection Visas could be a win-win approach for both countries, as it will be beneficial to increase the remittance of SL and as well as to strengthen the economic development of Australia.  

Ms. D.G. Niruka sanjeewani is a Senior Lecturer in International Relations at the Department of Strategic Studies, General Sir John Kotelawala Defence University (KDU), Ratmalana, Sri Lanka. She has a BA (Hons.) in International Relations and a MA in International Relations from the University of Colombo, Sri Lanka. Currently, she is following her PhD in International Development at Chulalongkorn University, Bangkok, Thailand. Her research interests include areas related to Theories and Concepts of International Relations, International Development Issues, Labour Migration and Refugee Studies. 

Old decisions for the modern age: sic utere tuo ut alienum non laedas and evidentiary issues in cyberspace – Part 2

This is Part 2 of 2 of an article exploring State responsibility for cyberattacks based on the sic utere maxim. Part 1 set out the evidentiary difficulties and principles relevant to the topic. Part 2 continues the analysis in Part 1 by considering how the principles described in that Part might apply to reported cyberattacks on Optus and the Australian parliament, including what might be forensically necessary to establish a claim based on a breach of the sic utere maxim in those contexts. 

As set out in Part 1 of this article, on 22 September 2022, Optus, an Australian telecommunications company, was the subject of a massive data breach which affected over 9 million of its customers. While the attack on Optus was likely conducted by a lone actor, other incidents, like a cyberattack on the Australian Parliament’s computer systems, are likely sponsored or conducted by other States.  

Unsurprisingly, not all of the details of the Optus cyberattack or the cyberattack on the Australian Parliament’s computer systems are known to the public. Nevertheless, we can conceptualise what might be necessary to establish a claim based on the sic utere principle for each event. If Australia:  

  • knew from its own investigations that the hacker or hackers responsible for each event were located in another State (assuming this was the case, and it could be proven with lay and expert evidence);  
  • could prove that the State of origin possessed a police force with the technology and powers available to at least attempt to identify and apprehend the individuals responsible (a matter of lay or expert evidence, or possibly even judicial notice);  
  • could prove that the State of origin knew or ought to have known of the risk or actual occurrence of the relevant attack (a matter of lay or expert evidence, or potentially inference from circumstantial facts); and 
  • knew that the original attack or subsequent malicious activity took place after this time, then there may be a sufficient factual basis to pursue a claim.  

This is, of course, a difficult set of circumstances to prove, but it is nevertheless an easier task than trying to prove the relationship between an attacker and the State in which they reside: evidence that may be impossible for an affected State to collect if the State of origin is not fully cooperative.  

As foreshadowed in Part 1 of this article, it may be that only an extremely sophisticated surveillance State would know of a cyberattack before it occurs, but once a cyberattack is a matter of public knowledge (or communicated privately by the Australian government to the government of the State of origin), then liability for any subsequent harm (like the sale of customer details in the case of the Optus cyberattack) may arise. Depending, of course, on the details of incidents that are largely obscured by national security measures, if the State of origin did possess notice of a cyberattack, and subsequent harm nevertheless occurred, then Australia could potentially argue by inference that the State of origin failed to exercise due diligence to prevent harm. Failure or reticence on behalf of the State of origin to cooperate are factual matters which would further support such an inference.  

Assuming Australia possessed the evidence described above, it would then need to characterise the cyberattack in a way that is legally actionable. Recalling the decision in Corfu Channel detailed in Part 1 of this article, the concept described by the majority as an act ‘contrary to the rights’ of another State is likely the same as that referred to by the Tribunal in Trail Smelter as an ‘injurious act’. Yet as the Tribunal observed, ‘the real difficulty often arises rather when it comes to determine what, pro subjecta materie, is deemed to constitute an injurious act’ (at [1963]). According to the Tribunal’s reasoning, whether an act is relevantly ‘injurious’ – and therefore the starting point when applying the sic utere principle in cyberspace or otherwise – is a matter to be determined by reference to whether the act, if perpetrated by a State, would be unlawful. 

Whether malicious cyber activity is internationally unlawful depends significantly on the scope and effect of such activity. Relevantly for the Optus cyberattack, the exfiltration of personal data of individuals through the exercise of power or effective control over certain infrastructure may arguably give rise to a breach of the international human right to privacy (potentially actionable by articles 41 to 43 of the International Covenant on Civil and Political Rights). Certain kinds of cyber espionage may be similar. Such arguments find support in the Human Rights Committee’s observation that a State might infringe the right to privacy of individuals by its conduct of extra-territorial fibre-optic cable tapping, regardless of those individuals’ location or nationality (see the 2014 Concluding Observations on the USA). However, such a position is not without controversy, and it is unlikely that it applies equally to any international cyber surveillance which does not involve the interference with physical infrastructure or equipment. Accordingly, it is unlikely that the Optus cyberattack would constitute an internationally wrongful act in this context.  

Further, the use of methods of coercion through cyber means to intervene directly or indirectly in the internal and external affairs of another State may constitute a prohibited intervention (see the Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, principle 3). While the Optus cyberattack does not appear to have had any political motive, it is possible that the cyberattack on the Australian Parliament’s computer systems did. If sufficient contextual evidence could be gathered to establish that the latter attack had a ‘coercive’ quality, then it is arguable that it constituted a prohibited intervention.  

Otherwise, and unrelated to the case examples in this article, cyberattacks causing loss of life or destruction of infrastructure may arguably constitute a violation of the prohibition on the use of force in contravention of article 2(4) of the Charter of the United Nations. Further, cyber activities that: have a physical effect or involve physical trespass (e.g. a transboundary computer virus that causes an electricity grid to lose power, or a computer virus delivered by a foreign entrant via a USB in the territory of another State, respectively), originate from one State and interfere with the exclusive jurisdiction of another State without the latter’s express or implied consent, and take effect in the territory of that other State, may constitute a violation of territorial sovereignty (see, inter alia, Netherlands v United States of America (Award) (1928) 2 RIAA 829 at 838, France v Turkey [1927] PCIJ (Ser A) No 10 at [45], Nicaragua v USA at [212]; Costa Rica v Nicaragua; Nicaragua v Costa Rica (Judgment) (2015) ICJ Rep 667 at [93], and article 2(1) of the Charter of the United Nations).  

Full and detailed consideration of each of these legal topics – and the specific remedies that might be sought in respect of each – are beyond the scope of this article. Nevertheless, the foregoing analysis demonstrates that there are ample scenarios in which a host State’s liability may possibly be enlivened by its failure to exercise due diligence to prevent malicious cyber activity from within its territory or jurisdiction taking effect in that of another. Arguably, at least one real world example – the cyberattack on the Australian Parliament’s computer systems – would constitute an act contrary to Australia’s rights. In circumstances where this and other such malicious cyber activity shows no sign of slowing down, States will hopefully receive greater clarity on the legality, or otherwise, of such activity in the not-too-distant future.  

Angus Fraser is an Australia-based lawyer practising in commercial litigation. He graduated from the University of Queensland in 2018 with First Class Honours and has previously published on public international law and information technology and the law. 

Old decisions for the modern age: sic utere tuo ut alienum non laedas and evidentiary issues in cyberspace – Part 1 

This article considers how States affected by malicious cyber activity may seek a remedy before international tribunals in circumstances where they cannot convincingly identify the specific perpetrator. It reviews relevant evidentiary difficulties, considers cases regarding the failure of States to exercise due diligence to prevent inter-State harm, and proposes that States affected by malicious cyber activity may argue a breach of the maxim sic utere tuo ut alienum non laedas: in essence, that a State of origin allowed its territory or jurisdiction to be used contrary to the rights of another State.  

This is Part 1 of 2 of an article exploring State responsibility for cyberattacks based on the sic utere maxim. Part 1 sets out the evidentiary difficulties and principles relevant to the topic. Part 2 explores how the principles described in Part 1 might apply in the context of specific case examples, including what might be forensically necessary to establish a claim based on a breach of the maxim. 

On 22 September 2022, Optus, an Australian telecommunications company, was the subject of a massive data breach which affected over 9 million of its customers. Unfortunately, the Optus breach is only the latest major example of an increasing list of malicious cyber activity affecting States, companies, and individuals. The recent Medibank cyberattack and publication of individuals’ private health information is another pertinent example. While the attack on Optus was likely conducted by a lone actor, other incidents, like a cyberattack on the Australian Parliament’s computer systems, are likely sponsored or conducted by other States. But what recourse under international law does Australia have in either scenario?  

Obtaining sufficient evidence to convincingly establish the identity of a perpetrator of malicious cyber activity is a difficult process. Perpetrators can and often do operate with a significant degree of anonymity online through various available software, and even utilise computers belonging to innocent third parties. For example, publicly available encryption services like Virtual Private Networks (VPNs) or ‘onion’ routing can help users anonymise their data profile online by allowing them to surf the web through single or multiple private servers respectively. IP spoofing is a means by which a user can impersonate another computer, often with the intent of illegally gaining access to additional secure computer systems. Once access is gained, innocent computers (sometimes called ‘zombies’) can then be used as a platform to conduct further malicious activity. The nature of cyber infrastructure therefore means there are multiple effective methods available to perpetrators to create reasonable doubt about their identity.  

States affected by malicious cyber activity may wish to seek a remedy against other States (whether as perpetrators or sponsors) before the International Court of Justice (ICJ) or an international arbitral tribunal. While States may simply seek to ‘name and shame’ alleged perpetrators, such accusations cannot provide the kinds of legal remedies that a tribunal can. Depending on the circumstances, such remedies can include (as examples) the award of compensation or restitution for material loss, an order for cessation and guarantee of non-repetition, or a declaration of wrongdoing. Further, there are remarkably few expressions of the boundaries imposed by international law on the cyber activities of States (leaving aside the use of cyberattacks in armed conflicts, and certain efforts to encourage the criminalisation of cybercrime). Without the legal certainty afforded by litigating the matter before a tribunal, these ambiguities in the law provide States with ample opportunity to operate in a legal penumbra and deny responsibility for, or the unlawfulness of, their conduct.   

However, a State seeking to litigate a claim arising out of malicious cyber activity must bear in mind certain obstacles to establishing the legal responsibility of a perpetrator. Foremost, such an allegation must likely be supported by ’convincing’ evidence (see Nicaragua v USA (Merits) [1986] ICJ Rep 14 (‘Nicaragua v USA’) at [29]), though there is yet to be a pronouncement by an international tribunal on the standard of proof applicable to alleged activities in cyberspace. Further, the categories of actors whose conduct will entail direct responsibility of a State are strictly defined and limited in number, namely: organs of the State as designated by the State’s national law; actors empowered by the State’s national law as functionaries; and actors acting on the instructions of, or under the direction or control of, the State (see the Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, articles 4, 5, and 8). 

Holding another State liable for perpetrating or sponsoring malicious inter-State cyber activity is therefore a near-insuperable task, due to both evidentiary issues inherent to cyberspace and the narrow legal bases upon which State responsibility can be established. While the former concept is unavoidable, the latter can possibly be mitigated by resorting to the less onerous fault standard of an alternative cause of action recognised by early international legal decisions.  

The maxim sic utere tuo ut alienum non laedas (broadly, the duty of States to use their territory and jurisdiction in such a manner that respects other States, including protecting other States against injurious acts by individuals within their territory or jurisdiction) has been referred to as a general principle of international law for over a century.  

Most notably, the 1941 Trail Smelter award considered the legal implications of Canada failing to prevent smoke emanating from smelters within its territory to the territory of the United States (see United States of America v Canada (Award) (1941) 3 RIAA 1905 (‘Trail Smelter’)). After recognising the existence of, and obligations imposed by, the sic utere principle, the Tribunal considered the question of whether an ‘injurious act’ had occurred to which the principle might respond. The Tribunal first noted that it was not aware of any case of air or water pollution dealt with by an international tribunal. Accordingly, the Tribunal turned to a number of United States judgments on the topic that concerned injurious conduct perpetrated or experienced by states of the Union. The Tribunal reasoned that such judgments provided guidance since they dealt with inter-state disputes or disputes concerning the quasi-sovereign rights of such states (at 1964).  

Having considered these decisions, the Tribunal in Trail Smelter concluded as follows (at 1965): 

‘…under the principles of international law … no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.’ 

The ICJ delivered a further exposition of the sic utere principle eight years later in the Corfu Channel decision (see United Kingdom v Albania (Merits) [1949] ICJ Rep 4 (‘Corfu Channel’)). The case concerned harm caused by mines in Albania’s territorial waters to warships and personnel of the United Kingdom. The majority of the Court held that the Albanian authorities were obligated to provide notice of the existence of a minefield in Albanian territorial waters and warn the British warships of the imminent danger to which the minefield exposed them. The majority further opined that such obligations were based on ‘certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’ (at 22, emphasis added).  

The concept that States are not to knowingly allow their territory ‘to be used for acts contrary to the rights of other States’ reflects the sic utere principle. The words ‘not … allow’ rather than, for instance, ‘ensure against’ (compare Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Advisory Opinion) [2011] ITLOS Rep 17 (‘Activities in the Area’) at [110]), suggest that the majority had in mind a standard of absolute liability whereby, no matter the countervailing circumstances or effort exerted by a State to prevent harm, the mere occurrence of acts contrary to the rights of other States would engender State responsibility. However, because the ICJ considered that the concept manifested in an obligation to notify other States of the harm within Albania’s territory, rather than prevent such harm entirely, one may infer from the Court’s decision that the sic utere principle only gives rise to relative, rather than absolute, liability for the occurrence of injurious acts. This inference is reinforced by the statement of the majority in the 2010 Pulp Mills on the River Uruguay decision (see Argentina v Uruguay (Judgment) [2010] ICJ Rep 14) that the Court in Corfu Channel had described ‘the due diligence that is required of a State in its territory’ (at [101]). It is further reinforced by Judge Alvarez’s reference to a duty of ‘vigilance’ in his Excellency’s Separate Opinion in Corfu Channel (see the Separate Opinion at 44).  

The standard of ‘due diligence’ is a basis of liability imposed by a primary rule of international law, breach of which gives rise to State responsibility without any additional requirements (see J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002) at 13). Satisfaction of a duty requiring a State to exercise due diligence does not require that State to actually prevent harm (see the commentaries to the Draft articles on Prevention of Transboundary Harm from Hazardous Activities at 154, [7]). Rather, a State fails to exercise due diligence if it has the opportunity through available measures to prevent harm but does not exercise sufficient effort to do so.   

Satisfaction of the standard of due diligence is based in reasonableness. This follows from Judge Alvarez’s statement that the scope of the duty to exercise ‘proper vigilance’ varies according to the geographical conditions of, or means available to, the relevant State (Corfu Channel, Separate Opinion at 44). In Nicaragua v USA, the majority also considered geographical complications and the secrecy of perpetrators as factors that mitigated against finding that Nicaragua failed to diligently prevent arms traffic through its territory. They reasoned at [157] that if ‘the exceptionally extensive resources deployed by the United States have been powerless to prevent this traffic … this suggests even more clearly how powerless Nicaragua must be with the much smaller resources at its disposal…’. A similar pronouncement, albeit in the more specific context of the United Nations Convention on the Law of the Sea and international environmental law, was made in Activities in the Area at [117], where it was opined that: 

‘The content of “due diligence” obligations may not easily be described in precise terms. Among the factors that make such a description difficult is the fact that “due diligence” is a variable concept. It may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge.’ 

Accordingly, while there is little doubt that the ordinary rules of international law apply with equal force to cyberspace (see, e.g., the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations at 31), the fact that any violation of a requirement to act with due diligence is assessed according to reasonableness means that certain accommodation must be made of the fact that a State may not have the capacity to know of, and in act in response to, every potential cyber threat from within its territory. A distinction could be drawn between the covert operations of a group of hackers and the presence of land mines in a State’s territorial waters (as in Corfu Channel), or fumes produced by a large physical structure close to its border (as in Trail Smelter). Further, the means by which a State could monitor and prevent cyberattacks may also risk intruding on the right to privacy of its citizens. The need to prevent cyber-harm cannot and should not be used as an artifice to justify human rights violations. Ultimately, the right balance to be achieved between these concepts is likely to depend heavily on the facts of a specific case; it may be that a State’s obligations thus only arise once a cyberattack is in motion, or has partially taken effect. 

In the context of malicious cyber activity, an affected State such as Australia may refer to Corfu Channel and allege that the State from whose territory or jurisdiction such activity originated failed to exercise due diligence in preventing an act contrary to the affected States’ rights. Such a cause of action is an alternative to seeking to meet the higher evidentiary threshold of identifying the actors within the State of origin responsible for the malicious cyber activity, and articulating the details of their relationship with the State in question. In alleging a failure to exercise due diligence, an affected State may only need to factually establish that the malicious cyber activity originated from another State, that such a State of origin had means available to prevent such activity, that the State of origin knew or ought to have known of such activity taking place, and that the State of origin failed to exercise with best efforts those means available to it (likely circumstantially by inference from the foregoing) (Corfu Channel at 18).  

This concludes Part 1 of 2 of an article exploring State responsibility for cyberattacks based on the sic utere maxim. Part 2 continues the analysis in Part 1 by considering how the principles described in that Part might apply in the context of reported cyberattacks on Optus and the Australian parliament.  

Angus Fraser is an Australia-based lawyer practising in commercial litigation. He graduated from the University of Queensland in 2018 with First Class Honours and has previously published on public international law and information technology and the law. 

H.F. and Others v France: The Protection Implications of Restrictive Approach to Jurisdiction

As the topic of repatriation from Syria continues to be debated by States within and beyond Europe, this article highlights the approach of the European Court of Human Rights’ Grand Chamber in H.F. and Others v France.

On 14 September 2022, the European Court of Human Rights’ Grand Chamber handed down a highly anticipated judgment, in the case of H.F. and Others v France. The applicants brought the case on behalf of their – French national – children and grandchildren, who were held in the al-Hol refugee camp in Syria and wished to return to France. The applicants’ daughters, ‘L’ and ‘M’ had travelled to Islamic State of Iraq and Levant (ISIL) controlled territory in 2014 and 2015 respectively to be with their partners. Both subsequently had children and ended up in al-Hol camp, following the death or imprisonment of their partners. The applicants went on to initiate repatriation proceedings on behalf of their families. However, these applications were subsequently dismissed. Consequently, the applicants alleged – before the ECtHR – that France’s ‘refusal…to repatriate their daughters and grandchildren’ constituted a breach of: 

–    Article 3 of the European Convention on Human Rights (ECHR) (prohibition of inhuman and degrading treatment) 

–    Article 3(2) of ECHR Protocol 4  (right to enter one’s own State), together with ECHR Articles 8 (right to private and family life) and Article 13 (right to an effective remedy) 

Ultimately, the Grand Chamber held that France’s jurisdiction under ECHR Article 1 was not engaged, for the purposes of Article 3. By contrast, on Article 3(2) of Protocol 4, French jurisdiction was triggered. Although the Court emphasised that this provision did not contain a ‘general right to repatriation’, it nonetheless held that there may be other obligations within the scope of Article 3(4), to ensure its protection was ‘practical and effective’. Thus, in some cases, Article 3(2) of the Protocol may impose a positive obligation may be on the State, ‘where…a refusal by that State to take any action would leave the national concerned in a situation comparable, de facto, to that of exile’. Nevertheless, where this positive obligation is held to exist, it will be interpreted narrowly; the ‘requisite review’ is ‘confined to ensuring effective protection against arbitrariness’. Ultimately, the Court concluded that, in this case, France did have an obligation to ensure its ‘decision-making process’ in the repatriation requests had ‘appropriate safeguards against arbitrariness’. However, it also held that such safeguards had not been provided, since, among other things, in this case, it was impossible to make a formal appeal to an independent body. 

While the Court’s analysis of the scope and content of Protocol 4 Article 3(2)  is not insignificant, this article will focus on the Grand Chamber’s approach to extraterritorial jurisdiction, highlighting the protection implications of a restrictive application to the Convention’s (extra)territorial application. 

Article 1 Jurisdiction – The Grand Chamber’s Decision 

In many – perhaps the majority – of cases before the Court, questions related to jurisdiction are easily answered, since the complaint relates to an act or omission that takes place within a contracting State’s territory. In such cases, the focus is solely on the substance of the case. Yet, where the action or inaction under scrutiny occurs beyond a State’s territory, the situation is more complex. As the Grand Chamber reiterated in this judgment, jurisdiction under Article 1 of the ECHR is ‘primarily territorial’. Extra-territorial jurisdiction, even in the case of a State’s own nationals, is the exception, not the rule. 

Given the significance of the case, and the complex questions surrounding jurisdiction, it is unsurprising that third party interventions were filed by a number of interested parties, including a joint submission from the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and the UN Special Rapporteur on arbitrary, summary and extra-judicial executions and a submission the United Nations Special Rapporteur on Trafficking in Persons, especially women and children (UNSRT), respectively. In her submission, the UNSRT referred to the approach of the United Nations Committee on the Rights of the Child (UNCtteeRC) to jurisdiction, and its holding in a similar case, that French jurisdiction was established in light of the ‘capability and power’ it had to provide rights protection. 

The approach taken by the Grand Chamber, however, did not mirror that of the UNCtteeRC. With reference to its previous case law, the Court assessed whether and to what extent France’s jurisdiction was engaged in light of the facts of the case, under three categories: 

(a) whether France had ‘control over an area’; 

(b) the impact of the domestic proceedings initiated by the applicants; and 

(c) other factors that may be ‘capable of establishing France’s jurisdiction’. 

The Court dismissed the first possible basis, holding that although there was some involvement of French military in the area, it was neither exercising effective control of the territory, nor did it have ‘any “authority” or “control” over the applicants’ family members’ in the camps’. Similarly, jurisdiction was not held to be established by means of the opening of domestic proceedings. The criminal proceedings, the Court said, did not relate to the complaints at hand. Further, the initiation of repatriation proceedings by the applicants would not ‘suffice in itself to trigger France’s jurisdiction’, since, according to the Court, ‘the bringing of proceedings at domestic level has no direct impact on the question whether the applicants’ substantive complaints fall within France’s jurisdiction’. 

On the third possible basis for jurisdiction, the outcome was – at least, partially – different. The Grand Chamber went on to assess whether jurisdiction may be triggered by ‘any special features, stemming from the bond of nationality’, or from ‘diplomatic jurisdiction’. In this analysis, a distinction is made between ECHR Article 3 and Article 3(2) of Protocol 4. On Article 3 of the ECHR, the Court stated that the French nationality of those in al-Hol camp was not sufficient to establish jurisdiction for the purposes of Article 3. This, it was argued, ‘would be tantamount to requiring the State to comply with Article 3’ even where it does not have effective control in the area where the alleged harm is occurring. Significantly, the Court goes on to note that France’s ‘operational capacity to repatriate’ is insufficient to create ‘an extraterritorial jurisdictional link’. As such, the ‘power and capability’ approach, akin to that adopted by the UNCtteeRC, appears to be rejected by the ECtHR. 

On Article 3(2) of Protocol 4, the outcome differs. Stressing that nationality alone cannot trigger extraterritorial jurisdiction, it went on to rely on the principle of effectiveness, recalling that ECHR rights must be ‘practical and effective, not theoretical or illusory’. In this regard, the Court held that there is an inherently extraterritorial element to Article 3(2), since if only those within a State’s territory could rely upon the right to enter one’s State of nationality, it would be ‘rendered ineffective’. On the question of whether jurisdiction would be triggered only at a State’s borders, or further, the Grand Chamber emphasised that a case-by-case approach must be taken. In H.F. and Others, factors taken into account included the nationality of those involved, the requests for assistance that had been made, and the fact that the applicants’ family members were unable to leave the camps and present themselves at the French border. In view of the foregoing, the Court concluded that there were ‘special features’ that triggered France’s jurisdiction for the purposes of Article 3(2) of Protocol 4, and as such, it went on to assess the scope of that provision and the extent to which France had complied with it.

Jurisdiction: A gateway – or barrier – to protection 

The jurisdictional holding – at least in respect of Article 3(2) of Protocol 4 – is certainly welcome. Indeed, as noted above, ultimately, the Court held that France had acted in violation of its Article 3(2) obligation – something that would not have been possible without extraterritorial jurisdiction. As such this jurisdictional ruling widens, rather than narrows, the gateway in terms of the potential of the ECHR to enhance protection for vulnerable persons who find themselves in dangerous and exploitative situations abroad. 

Yet, the limited extent of such a widening is all too apparent here too. The gateway remains shut insofar as ECHR Article 3 is concerned. In this case, the contrasting jurisdictional findings illustrate all the more that extraterritorial jurisdiction is viewed as both right-specific, and context-specific. There is no ‘one size fits all’ formula. This is not the first time only some obligations have been held to apply extraterritorially. In Al-Skeini and Others v The United Kingdom, the Court explicitly held that, where jurisdiction is linked to ‘authority and control’ over persons and not territory, only those rights ‘relevant to the situation of that individual’ must be protected. In this way, the Convention rights could be ‘divided and tailored’. Yet, in H.F. and Others, we see a somewhat different ‘dividing and tailoring’. Here, it is jurisdiction itself which appears to be ‘divided and tailored’. 

Had the Court adopted the ‘capability and power’ approach akin to that taken by the UNCtteeRC, and emphasised in the UNSRT’s intervention, it is difficult to see how jurisdiction would not have been triggered for Article 3 of ECHR as well as Article 3(2) of Protocol 4. The outcome, and ambit of protection may well have been very different. Indeed, the hardship faced by the applicants’ family members was well-documented. Yet, the restrictive approach to jurisdiction adopted in this case, ultimately narrowed the gateway to protection in this regard. It also results in a diverging jurisprudential approach across international human rights bodies, which may be problematic for the coherence of international law in this regard. 

Although this decision may be met with disappointment, it is perhaps unsurprising, in light of M.N. and Others v Belgium, where jurisdiction was not established where an individual presented at a contracting State’s embassy, or initiated domestic proceedings. To conclude otherwise, the Court held, ‘would amount to enshrining a near‑universal application of the Convention on the basis of the unilateral choices of any individual, irrespective of where in the world they find themselves, and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment contrary to the Convention outside their jurisdiction.’ Indeed, Reyhani argued that the decision in M.N. and Others, ‘laid bare the naivety of believing in the universality of human rights’. The limits of the ECHR’s extraterritorial applicability appear to be clearly and restrictively fixed, and the Court, in H.F. and Others, although it took a small, but significant step forward in relation to Article 3(2) of Protocol 4, further solidified this restrictive approach. 

The ECtHR is keen to emphasise – even in this judgment – that the Convention is a ‘living instrument’, and that the rights within it must be ‘practical and effective’, and not ‘theoretical or illusory’. Yet, the obstacles to such effective protection remain as fixed as ever, and in a world of increasing global movement and cross-border harm, this remains problematic. As migration – and forced migration – is ever more common, it may be high time for a more expansive approach to international human rights law jurisdiction. Such an approach sits at the heart of the tension between sovereignty and protection, and thus, widening the gateway will not be a straightforward task. 

Gillian is a Postdoctoral Researcher based at the Irish Centre for Human Rights, School of Law, University of Galway. She is currently working on an Irish Research Council COALESCE project exploring human trafficking, forced migration and gender equality in Uganda. Gillian is a Research Affiliate at the Refugee Law Initiative, where she is a tutor on the MA programme, and convenes the working group on ‘The Role of Courts in Shaping Access to Asylum’. She is also co-chair of the Human Trafficking Research Network (based at QUB Human Rights Centre), and a trustee at Chab Dai UK.  

Reviewing a Convention on Crimes Against Humanity – Ankit Malhotra

Introduction 

In 2014, the International Law Commission (ILC) began drafting articles for a Convention on the Prevention and Punishment of Crimes Against Humanity, alluding to “a global convention on crimes against humanity”. While the consideration for this is well-founded, one is compelled to consider the already existing international law on crimes against humanity as formulated under the Rome Statute (Article 7). One goal of the ILC in its crimes against humanity convention was to produce a balanced text that would inspire States to establish improved national laws and national jurisdiction regarding crimes against humanity (and develop inter-State collaboration on the subject), while respecting certain boundaries on what States would likely accept in a new convention. From one perspective, the ILC could have adopted a far-reaching treaty language crammed with “wish list” items to describe highly progressive legal policy, but States likely wouldn’t adopt such an instrument. 

It is general consensus that crimes against humanity have attracted sufficient adherence to by States (opinio juris and State Practice) such that they have crystalised as customary international law as well as being contained in the Rome Statute. However, Sean Murphy highlights many States that will not prosecute or extradite alleged perpetrators solely based on customary international law. Rather, they will insist upon having a national statute to prosecute. To bridge this lacuna of international and national law, a crimes against humanity convention will oblige States to codify the crime within their national law, thus enabling themselves to prosecute criminals. In creating its draft articles on the convention on crimes against humanity, the ILC may have merely adopted “guidelines,” “principles,” or “conclusions” that would not bind States to legal restrictions. Instead of a legally binding treaty, the ILC aimed for practical, achievable, and valuable suggested articles. 

According to Murphy, unless and until a convention on crimes against humanity is created, States will not take cognisance of their actions. Murphy argues that States must create a treaty and not just a “draft” like the Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001. This would be more conducive for States to adopt domestic legislation based on an international convention on crimes against humanity. 

Read More

Call for Expressions of Interest: ILA Committees, 14 October 2022

The Executive Council of the International Law Association establishes Committees to undertake research and report on carefully mandated areas of international law.  The International Law Association (Australian Branch) is currently accepting expressions of interest for two of these Committees: the International Tax Law Committee and the Committee on Enforcing the Rights of Children in Migration.

The International Tax Law Committee is chaired by Juliane Kokott (German Branch) and Pasquale Pistone (Austrian Branch). The Committee on Enforcing the Rights of Children in Migration will continue the work commenced by the Study Group on Cross-Border Violations of Children’s Rights. The Committee intends to publish a book focused specifically on the enforcement of the rights of children in migration and to develop a set of recommendations (best practices) for countries interacting with children in migration and will be chaired by Warren Binford (US Branch), Michael Garcia Bochenek (UK Branch) and Ann Skelton (South Africa Branch).

The Australian Branch is currently seeking expressions of interest in nomination for these Committees. Expressions of interest outlining your relevant expertise for the work of the Committee(s) and a full CV should be sent to [email protected] by 5pm (AEST) Friday 14 October 2022. Please note that only members of the Australian Branch are eligible for nomination. 

Events and Opportunities – September/October 2022

Jobs

Australian Red Cross  

The Australian Red Cross International Humanitarian Law Program is seeking an Advisory Committee Member with experience in the healthcare sector to support the Australian Red Cross’ work on promoting awareness about International Humanitarian Law within the Australian healthcare sector. More information here

Legal positions at UN agencies 

Various UN agencies are recruiting for legal officers in New York, Geneva and the Hague. More information here

Human Rights Watch 

The Alan R and Barbara D Finberg Fellowship is accepting applications for a one-year posting at Human Rights Watch in New York or Washington DC. This fellowship is open to candidates who hold an advanced (graduate) degree or have a degree granted by June 2023 in the fields of law, journalism, international relations, area studies, or other relevant disciplines from universities worldwide. More information here.  

Internships

Center for International Environmental Law  

The Center for International Environmental Law, based in Geneva, is seeking applications for its legal internship program. A monthly stipend is available. Deadline is 1 October 2022. More information here

UNIDROIT Internship and Research Programme

The UNIDROIT Scholarship, Internship and Research Programme is currently accepting applications for internships to be undertaken in 2023. Applications close on 30 September 2022 and are open to undergraduate and postgraduate students interested in private international law. More information here.

Opportunities

Call for papers, Cambridge International Law Journal 

The Cambridge International Law Journal (CILJ) is inviting submissions for volume 12(1) to be published in June 2023. The volume will include a special section on ‘Global Security Challenges and International Law’. Deadline for submissions is 30 October 2022 at 11:59 pm (BST). More information here.  

Call for Papers, 9th IUCN Frontiers in Environmental Law Colloquium 2023

The Australian Centre for Environmental Law (ACCEL) at The University of Sydney Law School is delighted to be hosting the 9th IUCN Frontiers in Environmental Law Colloquium 2023, to be held on 16-17 February 2023. The 2023 Colloquium will focus on the theme of ‘A Half Century of Environmental Law: Where to from Here?’ and will be held in person in Sydney. Abstracts are due on Monday 31 October 2022. Further details are available here.

PhD Opportunities 

Funded PhD opportunities available in the subject areas of feminist approaches to international law and current challenges to international humanitarian or criminal law at the University of Birmingham. More details here.  

Call for papers, 5th International Conference on the Right to Development  

The University of the Free State, in conjunction with the Centre for Human Rights at the University of Pretoria and other universities, is seeking papers for an upcoming conference analysing the right to development and democracy in Africa. More information here and here

Events

World Day Against the Death Penalty: The Fragility of Abolition in Asia and the Pacific, 10 October 2022 

The ANU College of Law, in partnership with the UN Special Rapporteur on extra-judicial summary or arbitrary executions, EU Delegation of Australia, amongst others, is making the World Day Against the Death Penalty with a panel discussion on the continuing place of the death penalty and the launch of the special issue of the International Journal for Crime, Justice and Social Democracy. More information here

Women and International Law Conference, 13-14 October 2022 

The Max Planck Institute for Procedural Law is holding a discussion which brings together contributors to the upcoming Oxford Handbook on Women and International Law. The discussion will examine the role of women in international law and the impacts of international law on women through the lens of Feminist approaches to international law. Register by 7 October 2022. More information here

Nuremburg Forum “The International Criminal Court 2002-2022: A Court in Practice”, 13-15 October 2022 

The Nuremburg Principles Academy will hold a hybrid conference examining the achievements of the International Criminal Court in its first two decades. The programme and more details can be found here

Webinar on the Russia-Ukraine War: Contemporary Developments and Challenges, 17 October 2022

The Newcastle Centre for Law and Social Justice is hosting a webinar on the Russia-Ukraine War. Full details and registration is available here.

Looking Back to the Future in the Law of the Sea: UNCLOS III and the LOSC at 40, 25 October 2022 

The Australian and New Zealand Society of International Law’s Webinar Series is hosting a discussion of UNCLOS in light of its 40th anniversary. A link to register for this and other events in the Webinar Series can be found here

Launch of the ILA Reporter Diversity Policy

The ILA Reporter team is excited to announce its new diversity policy, as approved by the International Law Association (Australian Branch).

Our policy

The ILA Reporter recognises the valuable contribution to international law that is made by individuals of diverse characteristics, including geographic diversity, race, indigeneity, ethnicity, age, gender expression, gender identity, sexual orientation, religion, disability and economic status amongst others, and the intersectionality of these characteristics. 

The ILA Reporter seeks to support individuals of diverse characteristics in progressing their careers in international law through its diverse contributor policy. Our Editors and Assistant Editors strive for the following in relation to the individuals contacted for contribution:

  • 50/50 gender representation,
  • equal Global South and Global North representation, and 
  • 50% of individuals aged below 35.

Recognising that not all diverse characteristics can be captured by a diverse contributor policy, we strongly encourage individuals of all diverse characteristics seeking opportunities in international law to get in touch with the ILA Reporter. We also encourage submissions which touch on issues concerning Third World Approaches to International Law (TWAIL), decolonisation and First Nations people, and intersectionality.

The diverse contributor policy aligns with the International Law Association’s policies on diversity. The diverse contributor policy complements the ILA Reporter’s existing mission, to publish analysis, commentary and discussion on issues in public and private international law which have a bearing on Australia, the Indo-Pacific and the Global South.

Privacy

The diverse contributor policy is implemented consistently with privacy expectations, including the Australian Privacy Principles (APPs) contained in the Privacy Act 1988 (Cth). The ILA Reporter team will not request the disclosure of personal information or share personal information. If you have any queries or complaints please contact us at [email protected].

Towards a more accountable United Nations Security Council: Interview with Dr Carolyn Evans – Part 2

This is Part 2 in a two-part series on Dr Carolyn Evans monograph, Towards a more accountable United Nations Security Council. In this series, Dr Carolyn Evans (CE) discusses her research on the United Nations Security Council with Assistant Editor Crystal Ji (CJ). Part 1 examines Dr Evans’ influences that shaped the direction of her research, the Security Council’s relationship with international law, and the problems and potential of the Security Council in performing its role. Part 2 examines what greater accountability could look like for the Security Council. 

CJ: Your book investigates how we can move towards more accountability for the Security Council. What does accountability mean in this context, is there a standard in international law?

CE: No there is not, though there have been attempts to go in that direction. A proposal came out of the International Law Commission in its Draft Articles on the Responsibility of International Organizations. It has been on the table in the General Assembly for more than 10 years, and it is no closer to finalisation. Also, accountability is a social or sociological concept rather than a strictly legal one. International law definitely does not have a strict meaning for the term, and it is not necessarily equated to, or only synonymous with, legal responsibility. Some people say it should be and make a good case, but I would suggest it is not necessary that it be equated that way, and instead that there is role for legal responsibility separate to the broader concept of accountability.  

The difficulties are also linguistic. Many languages do not have a word for accountability so it is not possible to translate it, and that in itself is a stumbling block. In the Anglophone world, the concept of accountability is basically a post-war concept. The first paper going in that direction is from 1944, so it is not a particularly longstanding concept. I took it back to basics to say that accounting is explaining or justifying, and that has a broad applicability that helps us. What it means for me is that it is dialogic – there is not much point to a monologue on what you did, as the account is not complete until someone responds to that.

I think there needs to be a formal response from the General Assembly as the plenary for the institution. That is not to say the General Assembly should supervise the Council.

In one sense, people used to say the Security Council accounts for itself in annual report. I would say, instead, that it only reports; it puts on the table a report of what it has been doing, but there is no immediate response, or mechanism for anyone to evaluate that, or provide a response later.

It is not like a parliamentary debate where someone will say something and then the other side says something different, there is no mechanism for that. If such a report is intended to explain or justify conduct, it should be a two-way street, there should be a response so you are not talking into the void or going into self-justifying monologue.  

But there I stop short of what other authors often do. A range of authors often bracket in the idea of consequences, so they are following more of what you see in newspapers of being ‘held to account’. That is certainly one part of the picture. I do not tend to use that as the main picture; it is highly valuable and educational to account for things even if there are no ‘consequences’. If you presume there are always negative consequences or some punitive element or even just a pejorative overtone, it changes the nature of accountability – it looks like you are going on a fault-finding mission rather than trying to understand something. What you do not want is an accountability process to end up being just 20/20 hindsight. Accountability is intended to help us understand, so it needs to have that interactive response element, but it does not need to have a pejorative or punitive overtone. For example, we do see shareholders’ meetings that go very badly – people shouting that things were done wrong, that sort of thing. But the other ninety-nine out of a hundred shareholders’ meetings will often be civilised, quiet, productive, where the annual report is given, where a shareholder will say, ‘it worries me a bit that this is happening’. And then the next year, the conversation will say ‘in response, we fixed that’. So, lots of those things happen with respect to accountability, but they are not always regarded as newsworthy. 

CJ: What kind of model would you propose that would incorporate that dialogic process to make the Security Council more accountable?

I think there needs to be a formal response from the General Assembly as the plenary for the institution. That is not to say the General Assembly should supervise the Council. But the General Assembly is the place for a statement of expectations to come from the membership of the institution, or a statement of disappointed expectations if you like; ‘we expected that to be done and it was not and we are not happy’. Interestingly, Ukraine has precipitated some of that. The 1950 General Assembly Uniting for Peace Resolution that has not been talked about for decades has come back to the fore, which is a way of the General Assembly saying ‘your explanation for your inaction is inadequate, we are now taking the helm’. If you think of it in accountability terms, the relevant resolution from the Security Council owned that it could not reach a resolution on the issue, and the General Assembly response is ‘we are going to do something’. Though the solution might not necessarily be via the Uniting for Peace Resolution, the idea is still a vastly more productive account of whether the Security Council is able to do what it is there to do, and whether it used all the tools it could use. In the book, I talk about examples where, with the benefit of hindsight, we can see many other things that could have been done at the time. I outline that this is evidence that, if there was a dialogue going with the General Assembly and that wider membership, shortfalls in action by the Council might have come out and been addressed at the time, much more contemporaneously, rather than what the Security Council does being almost a monologue in the Council.  

It is important because one of the other old chestnuts of reform is a bigger Security Council. For example, the case is often debated about the Security Council not being representative. In the arithmetic sense, that is true, but the Security Council still needs to be fit for purpose.

The idea I explored was greater corporate memory by having what some might call ‘semi-permanent members’ of the Security Council.

If we think they have trouble making decisions with 15 members, how much bigger can you make it before it would not be able to do anything at all? The General Assembly itself is a good example of inaction from broader membership. Even in some GA committees with 50 members, there is a serious struggle to move ahead simply because it is a big body of people to wrangle. Instead, I looked at the ideas around a modest increase of a handful of members to the Security Council, because if you did exactly what you do now in the Security Council but with more people, I do not think it would make any difference at all. You need to adjust one of the other dials. The idea I explored was greater corporate memory by having what some might call ‘semi-permanent members’ of the Security Council. At the moment, elected members are constrained by not being allowed to serve successive terms. Just as they start to become familiar enough with the work to really contribute, their term is finished. Could successive terms be allowed? Then they could build up more corporate memory and greater ability to deal with the issues.  

So, accountability could be increased by more involvement, by the General Assembly responding, by more push from the General Assembly to indicate direction to the elected members of the Security Council, and the elected members then standing up and doing so. There is the example [mentioned in part I] of the 1267 Ombudsperson. The General Assembly clearly expressed that the system was not right and needed to be fixed. Over a period of years, almost all elected members pursued that and contributed something. Some commissioned studies, others put it back on the agenda after it fell off. They took the idea from the General Assembly that it was a problem that needed to be fixed, then they pursued it. That structure is dialogic and is ongoing to account for the gap that is seen and to look at different ways of bridging the gap. 

All of that said, if you are a very black letter law person, accountability is a frustrating concept because it does not have a strict definition or finite boundary. Hence my answer is long because it is not black letter law. We are back to the Security Council’s basic relationship with international law, which itself is not black letter. My inclination has been to go back to the membership, which has the right to direct the institution as a whole, where this might play out in the General Assembly being the plenary body. The membership should be directing the institution, not just one or two veto-holders. 

CJ: Do you see momentum building for change being instituted? How would you overcome obstacles and find a path forward in that regard?

CE: With every week that goes by with the situation in Ukraine, I think people are discovering what can be achieved. It is a horrible way of discovering it, but it would be worse if we went through all that and did not, so we take the positive where we can get it. Put a different way, the situation in Ukraine itself is a full stop on a long and ugly sentence that played out over decades. Some people would say it is a natural consequence from Crimea, and I would agree, but Crimea itself was a consequence of other inaction of the Security Council which came about because they could not agree on something 30 years ago, which came because they could not agree on something 40 years ago – but if I start giving those examples, we might be here all day! The key is that gradual degradation can be addressed by gradual re-creation. I do not think throwing it out and starting it again is that practical. Just that one example I gave earlier on the Uniting for Peace Resolution – revisiting that and using a tool that was there to be used, using it well and doing as much as they could with that, that is great. And – perhaps quite surprisingly – writing the book made me quite optimistic about the possibilities! 

Dr Carolyn M Evans CSC teaches and researches at the Faculty of Law & Justice at UNSW Sydney, specialising in international law in relation to international organisations. She recently published her first monograph Towards a more accountable United Nations Security Council (Brill 2021). 

Towards a more accountable United Nations Security Council: Interview with Dr Carolyn Evans – Part 1

In this series, Dr Carolyn Evans (CE) discusses her research on the United Nations Security Council published in her recent monograph, Towards a more accountable United Nations Security Council (Brill 2021) with ILA Reporter Assistant Editor Crystal Ji (CJ). Part I examines Dr Evans’ influences that shaped the direction of her research, the Security Council’s relationship with international law, and the problems and potential of the Security Council in performing its role.  

CJ: Congratulations on the book/monograph! What prompted you to write this book?

CE: It is my doctoral thesis revisited. It commences with the story of how I came to pursue a PhD, which is relevant especially as it’s not my first trip around the block, and I only just finished my PhD three years ago. I was involved in community service for a very long time, mostly as a human rights activist. This gave me a practical understanding of how human rights treaties make a difference and how they can be used. It became clear as I went along that if I better understood the role of the UN, including what the Security Council does, I would be able to improve my human rights work. It also intersected with what I had done in my professional life for a very long time, which is what we would now call ‘governance’ in a broad sense: how decisions are made, who has the right to make them, and whether they’ve been made effectively.

You start by looking at functions assigned to an entity that has decision-making powers and see if they are performing them correctly, the procedural elements of decision-making; funnily enough, I assumed early on in my career that people in power would simply follow those procedures, but I later realised what a brave assumption that was. Many times decision-makers do not even understand their own procedures, or they get all caught up on a tiny element of the procedure and they miss the main problem. Over the years I accumulated all this knowledge about governance, and then once I studied international law, it dawned on me that some of the most substantial issues of governance in the world relate to the Security Council. It was an obvious thing for me to study. The potential for abuse of power is huge, but there is also huge potential to not be effective. In some ways, the Security Council could be one of the most powerful institutions in the world, yet many people look at it and wonder why it is not. 

CJ: So the book was clearly very much informed by both personal experiences and also what you studied later.

CE: Yes. I have two Masters degrees – one I did a long time ago, an MBA, then as I went on in my career I became more interested in law, and so I did a Masters of Legal Studies. In that, I did the international law and human rights track. There were big lightbulb moments. 

CJ: You mention that you realised the Security Council is a very powerful institution with great potential. What is its relationship to international law? 

CE: The Security Council’s relationship with international law is one of the big issues. In one sense, it is simple – the UN is a creature of international law that is constituted by a multilateral treaty, and all of the things it does are enabled and empowered by international law in that broad sense.

It is a great balancing act… but it is not just about the P5 having the veto, as that greatly oversimplifies how the Security Council interacts with international law.

From another perspective, what the Security Council is there to do is simply impossible without the supporting framework of international law. It has its own obligations and activities, it also has guidance on what to do and how to respond in the face of what others do, but that nice summary papers over an enormous number of cracks. There are so many practical difficulties in working your way through the geopolitics even when you’ve got international law on your side. You can argue about getting the balance between legalism and realism right, or whether the ends/consequences for the world justify the means the Security Council might use. But even some of the really big concepts of international law, such as sovereign equality of states, get lost in the noise of debate in the Security Council. At this point, it is hard not to comment that the misconceptions surrounding the Security Council’s interactions with international law are not helped by the infamous relic of the post-war era, the dreaded veto. It is a great balancing act, trying to wrangle all of that, but it is not just about the P5 having the veto, as that greatly oversimplifies how the Security Council interacts with international law. There is so much more to it than that. The General Assembly, the elected members of the Security Council, all these other actors in the picture also have their own interactions with international law, and that shapes what the Council might/should/could do.  

I approach this from a different angle. If you think about it from the veto, it can stop action that is proposed. But first, there has to be a proposal to be stopped. If you look at how the Council has used international law to its advantage over the years, half the time there isn’t even a proposal, and that tends to be a bigger issue. So there are many consequences of what goes wrong when the Security Council does something, certainly, but I tend to focus on the consequences if the Security Council does nothing, because there is only one Security Council and there is no alternative. If they do not do their job, where do we all end up? Before Timor was as we know it now, it was formerly a Portuguese colony that Indonesia invaded in 1975. Twenty-five years of death and destruction came afterwards, but it came afterwards because the Security Council could not take action. Much more recently, two years ago when the Secretary-General called for a global ceasefire in order to deal with the COVID-19 pandemic, the Security Council could not get it together to pass a resolution in support of that. Though it probably would not have made a difference if the Council had passed that resolution, it does show the depth of the problem, that they could not realise the world needed them to be active rather than sitting frozen, like a rabbit in the headlights. 

CJ: If there is a proposal put forward, you have the P5 who have the power to veto, being comprised of countries that a lot of people would say does not even reflect current power structures. How do we overcome that hurdle of the veto, so that the Security Council can be a productive body to help maintain international peace and security?

CE: It is very hard to talk about the Security Council without talking about reform. It has been a hot topic for decades. When I started my doctoral research, I very quickly became allergic to debate over particular reform proposals, because although I do see the worth of the debate, I just cannot get past the veto. It seems so improbable to suggest that there will be any change to the most important arrangements like permanent membership and the veto. Without compacting or abbreviating that discussion too much, the veto is both the cause and the effect of the problem. You never get out of the loop.

The Security Council is a geopolitical body of huge complexity and significance, so you are not going to get things just by wanting them. That persistence is key.  

In my doctoral research, I thought: ‘let’s accept that, what else can we do? What else looks possible?’ What I came around to and what I discuss in the book, is to ask: ‘Is the Council doing what it is there to do?’, rather than contemplating reform and deciding the Council should do something different. In one sense, that applies to the whole UN.

Recently, there have been debates sparked by the situation in Europe, saying we really need to reform, or perhaps to get rid of the UN altogether. I can understand those arguments, but after researching it for so long, what I do get from the history of the Security Council is a much stronger sense that when certain actors put their mind to it, really good results are possible despite the P5 and their veto. I ended my research very optimistic about that. ‘What is it we want from the Council?’ is a good question. ‘Who gets to decide that?’ is another. It is quite possible to take the view the Security Council does a lot of behind-the-scenes diplomatic work that we do not see. However, that is not its main job; its main job is to maintain and restore international peace and security. Put another way, if we do not have a better idea of what we want from the institution, getting rid of the institution and starting again probably will not help. If we instead put their feet to the fire and make the actors we have already got do the thing they are there to do, there is a better chance of progress.  

In that direction there are some good examples to be discussed about when the elected members took concerted, unified action to pursue a goal and achieved it. One is the 1267 Ombudsperson. Resolution 1267 deals with counter-terrorism, to better deal with the Taliban and Bin Laden. That committee is the source of some of the ‘celebrated cases’ where people were – incorrectly – listed on terrorism watchlists and then could not get off the watchlists. More than 15 years ago there was action that led to a General Assembly resolution about the need to have fair and clear procedures for listing and delisting. This now seems obvious. But it took nearly five years of successive elected members of the Security Council pursuing this one idea that ‘fair and clear procedures’ were needed. They put it on the agenda under different headings, they kept going back to it. Costa Rica, Liechtenstein, Luxembourg, Germany, Sweden, Switzerland, Denmark and various others played a role at different times. All these disparate members, as they came and went as members of the Security Council, they kept chipping away at this idea that the procedures for terrorism watchlists were not right. In the end, they got an ombudsperson, changed the rules, and, crucially, provided for a review mechanism.  

The Security Council is a geopolitical body of huge complexity and significance, so you are not going to get things just by wanting them. That persistence is key.  

Another example is the process by which the Secretary-General is chosen. Many people were critical of the Security Council for that process being held behind closed doors for a long time. But it started because the General Assembly asked the Security Council to do it that way. In 1946, the General Assembly passed a resolution essentially saying to the Security Council, ‘just give us one candidate because we do not want to debate it in open forum, there might be dissent and it might not be fun’. [Ed: see Terms of Appointment of the Secretary-General GA Res 11 (1), UN GAOR, 1st sess, 17th plen mtg, UN Doc A/Res/11 (1) (24 January 1946) para 4(d).] 

So it started with the General Assembly but it also finished with it. In 2015, especially towards the end of that year and in the next year, the General Assembly said it wanted to do things differently, an idea which different civil society organisations then picked up. The selection of Secretary-General Antonio Guterres came out of a much more open and accountable process, because of the instigation of the General Assembly and then elected members of the Security Council being persistent. So the General Assembly creates the demand, to which it is possible for the Security Council to respond if elected members then pick that up and are persistent, and that makes change. You need to see the possibilities out of examples like that rather than feel the weight of the veto.  

There is a similar pattern to be seen in an example like Australia and Jordan and Luxembourg taking action to get humanitarian aid to Syria. The Syria example is particularly important because the whole way through that process, which ended with a  decision under Article 25 of the UN Charter to say Syria must allow access for humanitarian aid, that was totally against what Russia and China wanted. They were against it from the beginning, but persistence won the day. So in some ways, it is a bit of a cheap shot to always go back to the veto, because there is a lot more to Security Council decision-making than that, but of course we can all see that the veto is a very real problem. 

In Part 2, Dr Carolyn Evans and Crystal Ji examine what greater accountability could look like for the Security Council. 

Dr Carolyn M Evans CSC teaches and researches at the Faculty of Law & Justice at UNSW Sydney, specialising in international law in relation to international organisations. Dr Carolyn Evans’ monograph Towards a more accountable United Nations Security Council is available now