Polish Yearbook 2016.Pdf

All texts express exclusively personal views of the authors. Authors bear full responsibility for statements and opinions expressed in the published studies.

PL ISSN 0554-498X DOI 10.7420/pyil2016

Wydawnictwo Naukowe Scholar Spółka z o.o. ul. Wiślana 8, 00-317 Warszawa ph./fax +48 22 828 93 91, +48 22 826 59 21, +48 22 828 41 18 marketing department: as above, ext. 108 e-mail: [email protected] www.scholar.com.pl

Printed in Poland

First edition, 200 copies CONTENTS

IN MEMORIAM ...... 9

Bartłomiej Krzan Professor Jan Kolasa (1926-2016) ...... 11

GENERAL ARTICLES ...... 19

Roman Kwiecień Te Nicaragua Judgement and the Use of Force – 30 Years Later ...... 21

Michał Kowalski Original Sin Reaﬃrmed: Te Nicaragua Judgement’s Impact on the Notion of Armed Attack as the Most Grave Form of the Use of Force ...... 37

François Finck Te State between Fact and Law: Te Role of Recognition and the Conditions under which It Is Granted in the Creation of New States ...... 51

Wojciech Burek Family Reuniﬁcation Regulations and Women: Te Perspective of International Law ...... 83

Athanasios Yupsanis Cultural Autonomy for Minorities in the Baltic States, Ukraine, and the Russian Federation: A Dead Letter ...... 109

Anna Karapetyan A Recurring Phenomenon: Te Lawful Sanctions Clause in the Deﬁnition of Torture and the Question of Judicial Corporal Punishment under International Human Rights Law ...... 137

Aleksandra Rychlewska Te Nullum Crimen Sine Lege Principle in the European Convention of Human Rights: Te Actual Scope of Guarantees ...... 163 6 CONTENTS

Petra Bárd Scrutiny over the Rule of Law in the European Union ...... 187

Joanna Ryszka “Social Dumping” and “Letterbox Companies” – Interdependent or Mutually Exclusive Concepts in European Union Law?...... 209

Dominik Horodyski, Maria Kierska Enforcement of Emergency Arbitrators’ Decisions under Polish Law ...... 231

POLISH PRACTICE IN INTERNATIONAL LAW ...... 245

Dorota Pyć Compliance and Enforcement of Maritime Labour Conditions – Te Polish Legal Perspective ...... 247

Grzegorz Wierczyński Te Polish Practice Regarding the Promulgation of International Agreements between 1945 and 2017 ...... 257

Agata Kleczkowska Judgement of the Supreme Court, dated 17 February 2016 (Ref. no. WA 16/15)...... 267

BOOK REVIEWS ...... 277

Kaja Kowalczewska William H. Boothby, Weapons Law and Te Law of Armed Conﬂict ...... 279 Bartłomiej Krzan M. Ruﬀert, C. Walter, Institutionalised International Law ...... 283 Roman Kwiecień Robert Kolb, Peremptory International Law – Jus Cogens ...... 287 Marcin Menkes Eugene Kontorovich, Francesco Parisi (eds.), Economic Analysis of International Law ...... 291 Marcin Menkes Marc-William Palen, Te ‘Conspiracy’ of Free Trade ...... 295

LIST OF REVIEWERS VOL. 36/2016 ...... 299 Dear Readers,

We are pleased to present you with the latest volume of the Polish Yearbook of In- ternational Law (36/2016). Following our tradition, it is divided into three sections: articles, Polish practice in international law, and book reviews. In addition, at the beginning of the volume we have included a memorial to the academic life and work of Jan Kolasa, the distinguished Polish professor of international law from Wrocław Uni- versity, who sadly passed away last year (by Bartłomiej Krzan). Te first section starts with two texts (by Roman Kwiecień and Michał Kowalski) that analyse the legal consequences of the famous judgement of the International Court of Justice in the Nicaragua case (Military and Paramilitary Activities in and against Ni- caragua, Nicaragua v. United States of America). Tese two publications are very timely, as 2016 marked the 30-year anniversary of the judgement. Both authors agree on its significance for modern international law, particularly with respect to customary rules relating to the use of force and principle of non-intervention. While the texts discuss different aspects of the judgement, both of them are rather critical of the ruling, and it is difficult not to agree with them, especially if one considers the developments that have taken place in Eastern Ukraine over last couple of years (and their legal assessment). Te third text in this section (by François Finck) explores the role of recognition in State creation. Based on an analysis of the relationship between the principles of effectiveness and legality in the process of State creation, the author claims that recognition is constitutive of statehood as a subject of international law. In the next article, Wojciech Burek argues that while the existing provisions on family reunification in international and European law are formulated in neutral language, the enforcement of these substantively neutral rules results, in certain situations, in discrimination with respect to women, both as the sponsors of migration or the bearers of the consequences of male migration. Next Athanasios Yupsanis takes a critical look at the legal mechanisms for guaranteeing cultural autonomy for minorities in selected states of the former USSR (including the Russian Federation), tracing their origins back to the late 19th century Austro-Marxist school of thought. Anna Karapetyan in turn addresses the problems arising from the inclusion of the “lawful sanction clause” in the relevant definition contained in the Convention against torture, while Aleksandra Rychlewska analyses the jurisprudence of the European Court of Human Rights relating to the principle of nullum crimen sine lege (as enshrined in Article 7 of the European Conven- tion on Human Rights) and comes to the conclusion that it is understood as requiring foreseeability in the application of criminal law and coherence in terms of the “essence of an offence”. Petra Bárd, in her important (and timely) text deals with the rules and procedures applicable to violations of the rule of law requirement in the European 8

Union. In this context she assesses the need for – and the possibility of establishing – an EU Scoreboard on EU values, which could contain viable strategies and procedures to regularly monitor all Member States’ compliance with the rule of law; and discusses as well the effectiveness and nature of the dissuasive sanction mechanisms foreseen for rule of law violators. Joanna Ryszka investigates two phenomena which have emerged within the framework of the European Union integration process, i.e. “social dumping” and “letterbox companies”. She contends that both of them may have some negative effects in terms of attaining the EU objective of a “highly competitive social market economy”, and presents possible solutions to the problems they give rise to. In the last text, Dominik Horodyski and Maria Kierska provide the Polish perspective on the effectiveness of emergency arbitrator proceedings by analysing the applicable regulations on interim measures and their enforcement. Te second section (Polish practice in international law) includes three texts. In the first, Dorota Pyć discusses the quality of the recent implementation of the Maritime Labour Convention into the Polish legal system (i.e. the new Polish Act on Maritime Labour). Grzegorz Wierczyński then presents the Polish practice of promulgation of international agreements since the end of World War II. In this context he shows that the practice is at variance with Polish law and makes it difficult to determine the current legal situation vis-à-vis international agreements in Poland. Te section closes with a text by Agata Kleczkowska, who analyses the judgement of the Polish Supreme Court of 17 February 2016 in a case concerning Polish soldiers accused of having committed crimes in the village of Nangar Khel in Afghanistan in 2007. Te last section includes five reviews of recently published books that should not be missed by our readers. As you will immediately notice, the volume does not contain the usual “Polish bib- liography in international and European law”. Te main reasons for the discontinuance of this section is the fact that our readers apparently do not find this list so useful anymore as the download statistics for the document are gradually declining. Of course we will reconsider our decision if there are any changes in the future. It is always a great pleasure to present you with each new volume of the Yearbook. We encourage you to contact us if you wish to submit a paper for a future volume, or just to express your opinion regarding the usefulness or content of PYIL, at pyil@inp. pan.pl).

Karolina Wierczyńska, Łukasz Gruszczyński

XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016a 2016 PL ISSN 0554-498X

Bartłomiej Krzan*

Professor Jan Kolasa (1926-2016)

Professor Jan Kolasa was born on 3 December 1926 in Kobylany, in the Opatów district. The outbreak of World War II severely impeded but did not entirely destroy his education plans. Soon after the War’s end he began studying Law at the University of Wrocław, from which he graduated on 30 December 1950. Already in 1947 Jan Kolasa was attending the lectures and seminars of Professor Stanisław Hubert, who became his academic mentor and master. It was during these times that Jan Kolasa, while still a student, completed an in-depth study of the first Polish textbooks on the law of nations. In the period of 1949-1956 he worked at the Library of the Ossolinski National Institute (Ossolineum), where he was trained as a full librarian and an editor. But his work at Ossolineum did not interrupt his contacts with Professor Hubert. At Professor Hubert’s urging, he undertook studies on the teaching of the law of nations in Poland during the Age of Enlightenment, which resulted in the publication of a well-received book wherein he analysed how the law of nature and law of nations were taught in Poland, i.e. in a state subjected to several partitions that eventually led to its final extinction. The results of this research have been oft-quoted by lawyers and historians. In September 1956 Jan Kolasa was awarded the scientific title of an adjunct at the Chair of International Law in the Faculty of Law at the University of Wrocław. Soon after that, in 1957, he left for the United States. As a Ford Foundation Scholar at Princ- eton University he first received a Master of Arts (1959), then Ph.D. on the basis of his dissertation “The League of Minds: The International Intellectual Cooperation of the League of Nations”. Facing problems with the recognition of his Ph.D. upon his return to Poland, Jan Kolasa obtained a second doctoral degree at his home University of Wrocław. The public

* Associate Professor of Public International Law at the University of Wroclaw, Faculty of Law, Administration and Economics, Wrocław (Poland). J. Kolasa, Pierwsze „systema prawa narodów” w języku polskim z roku 1780, Wrocławskie Towarzystwo Naukowe, Wrocław: 1951. J. Kolasa, Prawo narodów w szkołach polskich wieku Oświecenia, Wydawnictwo Prawnicze, Warszawa: 1954. J. Kolasa, The League of Minds: The International Intellectual Co-operation of the League of Nations, Dissertation Abstracts, Princeton: 1960. 12 Bartłomiej Krzan defence of his dissertation “Prawo narodów w polskich szkołach wieku oświecenia” [The law of nations in the Polish schools in the age of Enlightenment] took place on 7 December 1960, with Professor Stanisław Hubert acting as a supervisor and Professors Ludwik Ehrlich and Leszek Winowski as reviewers. In 1962 Dr. Kolasa published ‘International intellectual cooperation. The League experience and the beginnings of UNESCO’, wherein he examined initiatives and attempts to establish the Institute of Intellectual Cooperation in Paris and the functioning of its organs. The book met with very positive reviews. In the subsequent period, Dr. Kolasa turned to international procedural law, which resulted in a series of interesting studies in addition to a book that became the basis for his obtainment of his advanced scientific degree (habilitation). The formal examination (habilitation colloquium) took place at the Wrocław Faculty of Law on 28 October 1965. The conferral of venia legendi was confirmed by the Ministry of Science in 1967. The reviewers in the proceedings were Professors Alfons Klafkowski, Remigiusz Bierzanek as well as Kazimierz Libera. Professor Kolasa’s habilitation thesis attracted considerable attention and earned him great respect. In it he analysed the problem of the legal value of different resolutions of international organizations, with particular emphasis on numerous procedural rules, a topic of utmost importance both in terms of theory and practice. The book was the first to offer such a comprehensive and in-depth legal analysis, using his own original conception of adopted law. He thereby contributed significantly to the science of international organizations, in particular to a better understanding of the contemporary law-making process. This work has been extensively referred to and quoted. According to Prof. Bierzanek, Kolasa’s book was “a bold attempt at a new and creative approach

See e.g. Bulletin of International Association of Universities’ Paris, vol. XI, 1963, no. 1. In another review published in International Organization, Krill de Capello assessed it as an “excellent Polish stud” – see H.H. Krill de Capello, The Creation of the United Nations Educational, Scientific and Cultural Organization, 24(1) International Organization 1 (1970). J. Kolasa, Regulamin Zgromadzenia Ogólnego ONZ, 10-12 Państwo i Prawo 556 (1963); idem, Rozwój regulaminów organizacji międzynarodowych, 3 Ruch Prawniczy, Ekonomiczny i Socjologiczny 81 (1965); idem, Regulamin Zgromadzenia Ogólnego Narodów Zjednoczonych, Sprawozdania Wrocławskiego Towarzystwa Naukowego, 19, A, 1964, Wrocław: 1966, pp. 76-88; idem, Przepisy regulaminu Zgromadzenia Ogólnego Narodów Zjednoczonych na tle postanowień Karty, XXII Acta Universitatis Wratislaviensis: Prawo 31 (1967). See also J. Kolasa, On the source of international law: towards a conception of adopted law, 9 Polish Yearbook of International Law 105 (1977-1978); idem, Koncepcja mieżdunarodnogo prinimajemogo prawa, Prawowiedienie 1977/3 (Leningrad); idem, Z zagadnień źródeł prawa międzynarodowego - koncepcja prawa uchwalanego, 11 Przegląd Prawa i Administracji 45 (1979); idem, Ku koncepcji międzynarodowego prawa uchwalanego, in: K. Wolfke (ed.), Aktualne zagadnienia źródeł prawa międzynarodowego, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 1984, pp. 11-19. See e.g. J.J. Baskin, D.I. Feldman, Meždunarodnoe pravo: problemy metodologii: očerki metodov issle- dovanija, Moscow: 1971, pp. 84-85; R. Sabel, Procedure at International Conferences. A Study of the Rules of Procedure at the UN and at Inter-governmental Conferences (2nd ed.), Cambridge University Press, Cambridge: 2006, p. 5. Professor Jan Kolasa (1926-2016) 13 to a problem of great scientific and practical importance”. Another reviewer (I. Seidl- Hohenveldern) expressed a similarly appreciative view. Subsequently, his 1975 monograph “Głosowanie w powszechnych organizacjach międzynarodowych. Wybrane zagadnienia prawne” [Voting in universal international organizations. Selected legal issues] constituted the basis for conferring on him the academic title of extraordinary professor of legal sciences. The results of his analysis in the monograph still remain intact today. In a review published in this Yearbook, Prof. Wojciech Morawiecki considered the monograph to be the “result of conscientious research which may serve as a model of a good juridical work.”10 Prof. Charles Rous- seau declared in Revue générale de droit international public that the book was a solid contribution to the law of international organizations.11 He attained Ordinary Professorship (via the formal conferral of the academic title of ordinary professor by the State Council) in 1982 with his monograph “GATT: z zagadnień tworzenia i stosowania prawa handlu międzynarodowego” [GATT: issues concerning the creation and application of international trade law] (Ossolineum 1979), which resulted from research he conducted both in Poland and abroad (during his visiting professorship at Princeton University in 1974/75).12 Professor Kolasa was appointed ordinary professor at the University of Wrocław in 1990 and worked in that position until his retirement in 2006. But even after that he remained actively engaged in the activities of the Department of International and European Law, to which he was always closely connected. Within Kolasa’s vast scientific legacy one may identify a number of issues that particularly attracted his attention. But probably his favourite field of research was the law of international organizations. In addition to his examinations into internal law-making13 and voting, he did not refrain from taking on other more general topics concerning the definition14

See R. Bierzanek, Review: J. Kolasa, Rules of Procedure of the United Nations General Assembly. A Legal Analysis, Wrocław 1967, 3 Polish Yearbook of International Law 336 (1970). See 99 Journal du droit international 174 (1972). 10 See 9 Polish Yearbook of International Law 355 (1976). 11 See LXXVIII Revue générale de droit international public 876 (1974). 12 J. Kolasa, Law-making and law-enforcing for international trade: some reflections on the GATT experience, Center of International Studies, Woodrow Wilson School of Public and International Studies, Princeton University, Occasional Paper - World Order Studies Program no. 3, 1976. 13 J. Kolasa, Z zagadnień tzw. prawa wewnętrznego organizacji międzynarodowych, XXXII Acta Universitatis Wratislaviensis: Prawo 83 (1970); idem, La notion de droit interne des organisations interna tionales, 3 Polish Yearbook of International Law 95 (1970); idem, Działalność prawotwórcza Organizacji Narodów Zjednoczonych w zakresie jej prawa wewnętrznego, Sprawozdania Wrocławskiego Towarzystwa Nau kowego 1970 nr 25 A, pp. 70-72; idem, On the Procedural and Organizational Law Adopted by the Organs of the European Union, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century. Essays in honour of Krzysztof Skubiszewski, Kluwer Law International, The Hague: 1996, pp. 625-642. 14 J. Kolasa, Pojęcie współczesnej organizacji międzynarodowej, 2/3 Przegląd Stosunków Międzynaro dowych 165 (1981); idem, La notion d’organisation internationale contemporaine, 12 Polish Yearbook of International Law, 95 (1983); idem, Some Remarks on the Concept of a Resolution and Decision of International Organizations, in: J. Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs, Kluwer Law International, The Hague: 1984, pp. 493-499. 14 Bartłomiej Krzan and classification15 of international organizations. In recognition of his expertise and achievements, Professor Kolasa was invited to take part in the preparation of an international textbook on international organizations, published in English and French under the auspices of the UNESCO and the Hague Academy of International Law.16 Professor Kolasa’s enduring interest in teaching international law was manifested not only in his earlier studies from a legal historian’s perspective. Professor Kolasa was also actively engaged in reacting to contemporary challenges,17 as may be evidenced by his determination and persistence to introduce the law of the European Communi- ties/Union to the curriculum of legal studies.18 It was due to his determination and persistence that European law started to be taught as a separate subject at the Uni- versity of Wrocław, and at the time of its introduction was one of the first few in Poland. Due to generous support of the Konrad Adenauer Foundation it was possible to establish the Konrad Adenauer Centre of European Integration at the Faculty of Law and Administration of the University of Wrocław, with Professor Kolasa as the Centre’s director. Given the lack of textbooks on European law during this early period, one of the remedies was the compilation of a two-volume work edited by Professor Kolasa: “Wspólnoty Europejskie (Unia). Wybrane problemy prawne” [European Communi- ties/Union. Selected legal issues].19 Within the domain of EU law Professor Kolasa offered both examinations into general problems20 as well as more specific issues. In the latter domain one should mention in particular the project on European and domestic telecommunications law, headed by Professor Kolasa and financed by the Ministry’s

15 J. Kolasa, Z zagadnień klasyfikacji organizacji międzynarodowych, in: J. Fiema, W. Gutekunst, S. Hu bert (eds.), Księga pamiątkowa ku czci prof. dra Witolda Świdy, Wydawnictwo Prawnicze, Warszawa 1969, pp. 347-353. 16 See R.-J. Dupuy (ed.), Manuel sur les organisations internationales (A handbook on international organizations), Académie de droit international de La Haye/Hague Academy of International Law, Dordrecht 1988. Together with R. Zacklin, Professor Kolasa prepared a chapter Les moyens des organisations internationales (The ways and means of international organizations), pp. 179-236. The former author referred to diplomatic relations, in particular to privileges and immunities, while Professor Kolasa authored the second part concerning financing (pp. 198ff), individuals (pp. 210ff) and property (pp. 232ff). 17 J. Kolasa, Prawo międzynarodowe w nowym programie studiów na Wydziale Prawa i Administracji, in: H. Olszewski (ed.), Polska i świat. Studia nad prawem międzynarodowym i współczesnymi stosunkami mię- dzynarodowymi. W czterdziestolecie pracy naukowej Profesora Alfonsa Klafkowskiego, Wydawnictwo Naukowe UAM, Poznań: 1978, pp. 225-235. 18 J. Kolasa, Prawo europejskie – nowy przedmiot w programie studiów prawniczych, in: M. Seweryński, 4 Studia prawno-europejskie 23 (1999). 19 The second edition was released in 1998. In the first volume Prof. Kolasa authored a study on EC internal law (Prawo wewnętrzne Wspólnot Europejskich. Zarys problemu, pp. 75-136), and in the second volume he published a study on the constitutional issues in the Treaty of Maastricht (Traktat z Maastricht. Zarys podstawowych zagadnień konstytucyjnych, pp. 49-104). 20 J. Kolasa, Unia Europejska na tle rozwoju prawa i społeczności międzynarodowej, in: J. Kolasa, A. Kozłowski (eds.), Prawo międzynarodowe publiczne a prawo europejskie, Wydawnictwo Uniwersytetu Wroc- ławskiego, Wrocław: 2003, pp. 159-185; idem, Europa – rodowód i tożsamość, in: S. Dudzik (ed.), Konstytucja dla Europy. Przyszły fundament Unii Europejskiej, Wolters Kluwer Polska, Kraków 2005, pp. 15-28. Professor Jan Kolasa (1926-2016) 15

Committee of ScientificR esearch.21 The accompanying book crowned almost a decade of research, commenced upon request of the Board of the National Radio Communica- tion Agency, and was successively published in a series “Legal Issues of Telecommunica- tion in Europe”. In the first issue of this series Professor Kolasa clearly underlined the necessity of combining legal expertise with advanced complicated and complex technological developments. He strongly advocated for “constant, long-lasting close cooperation of engineers with lawyers and mutual support and complementing actions for developing this branch of science, and decent Polish domestic legislation in conformity with European requirements.”22 This is yet another manifestation of Professor Kolasa’s legendary stance on combining theoretical and practical issues. Mention must also be made of the monograph “Disarmament and arms control agreements: a study on procedural and institutional law” (Brockmeyer 1995), which was prepared at the University of Bochum. It contains a meticulous analysis of the respective agreements, constituting, according to the author, a new form of States’ commitments. Formally autonomous, these agreements concern interrelated aspects of the same subject, they are mutually interconnected not only substantively but also in legal-institutional terms. Thus, by being complementary to one another they lead to a certain institutional system constituting a new branch of today’s public interna tional law. Amongst his many lasting achievements, Professor Kolasa’s contribution to the law of international courts and tribunals is worth mentioning, along with his pioneering studies on procedural law.23 At a later stage he headed a scientific project on the contemporary international judiciary, the main effect of which was a two-volume work, edited by him. In the first volume, devoted to institutional issues, he tackled the Per- manent Court of Arbitration,24 and in the second volume on “Selected legal issues” Professor Kolasa offered an extensive study on the independence of an international judge.25 The latter topic was further developed and also took the form of a brilliant

21 W. Gromski, J. Kolasa, A. Kozłowski, K. Wójtowicz, Europejskie i polskie prawo telekomunikacyjne, LexisNexis, Warszawa: 2004. 22 J. Kolasa, Przedmowa in: Zarys regulacji w ramach organizacji europejskich, Warszawa 1996 [Series: Zagadnienia Prawne Telekomunikacji w Europie, 1], p. 7. 23 J. Kolasa, Regulamin Stałego Trybunału Sprawiedliwości Międzynarodowej. Początki międzynarodowej procedury sądowej, CLIX Acta Universitatis Wratislaviensis: Prawo 69 (1987); idem, Some Reflections Concerning the Evolution of International Arbitral and Judicial Rules of Procedure, 14 Polish Yearbook of International Law 99 (1985); idem, Proces Norymberski - aspekt proceduralny, 5 Państwo i Prawo 55 (1988); idem, Origins and sources of procedural law of international courts: ubi jus, ibi remedium, in: V. Epping et al. (eds.), Brücken bauen und begehen. Festschrift für Knut Ipsen zum 65. Geburtstag, München: 2000, pp. 185-198. 24 J. Kolasa, Stały Trybunał Arbitrażowy, in: J. Kolasa (ed.), Współczesne sądownictwo międzynarodo- we, Tom I: Zagadnienia instytucjonalne, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2009, pp. 47-73. 25 J. Kolasa, Niezależność sędziego międzynarodowego. Zarys problemu, in J. Kolasa (ed.), Współczesne sądownictwo międzynarodowe, Tom II: Wybrane Zagadnienia prawne, Wydawnictwo Uniwersytetu Wrocław skiego, Wrocław: 2010, pp. 9-47. 16 Bartłomiej Krzan presentation at the reunion of the Polish departments of international law at the Książ Castle in 2010.26 In addition to the above-mentioned fields of interest, one may mention his examinations into international environmental law27 or studies on international responsibil- ity28 and on international trade.29 Professor Kolasa devoted special care and attention to preparing an anniversary study on the restoration of the Republic of Poland for “Przegląd Sejmowy”30 – a topic that had been previously examined by his academic master Professor Hubert.31 Lastly, a team convened under Professor Kolasa’s leadership examined the essence of sources of international law. The results of this project, with his important contribution on the legal character of unilateral acts of states,32 are forthcoming also in English. Without doubt the research conducted by Professor Kolasa was always of great theoretical and practical importance, contributing vastly to the development of the science of international law. In many respects he posed problems in a pioneering fashion. His scientific legacy met with widespread acknowledgement and full respect and was extensively referred to in both the Polish and international legal doctrine, as evidenced by the many glowing reviews of his works in domestic and international scientific journals. Along with having the highest scientific qualities and attainments, Professor Kolasa was always very strongly engaged in University affairs. At the University of Wrocław he

26 J. Kolasa, Zasada nemo iudex in causa sua a sądownictwo międzynarodowe, in: A. Wnukiewicz- Kozłowska (ed.), Aksjologia współczesnego prawa międzynarodowego. Materiały konferencyjne (Książ, 12- 14.05.2010 r.), Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2011, pp. 31-60. 27 See J. Kolasa, Prawnomiędzynarodowe aspekty ochrony wód Odry przed zanieczyszczeniem, 1 Przegląd Stosunków Międzynarodowych 33 (1979); idem, Ochrona środowiska naturalnego Odry w płaszczyźnie prawa międzynarodowego in: J. Gilas, S. Wajda (eds.), Status prawnomiędzynarodowy Odry, Instytut Śląski, Opole: 1982, pp. 159-173. 28 J. Kolasa, Z zagadnień kodyfikacji zasad odpowiedzialności międzynarodowej państw, 4 Przegląd Prawa i Administracji 91 (1973); idem, Odpowiedzialność majątkowa państw w świetle prac Komisji Prawa Międzynarodowego Narodów Zjednoczonych, in: H. de Fiumel (ed.), Problemy odpowiedzialności majątkowej państw Rady Wzajemnej Pomocy Gospodarczej, Warszawa: 1975, pp. 131-150. 29 E.g. J. Kolasa, Współpraca gospodarcza między Polską a RFN w świetle umów międzynarodowych, 5 Przegląd Stosunków Międzynarodowych 19 (1974); idem, Die wirtschaftliche Zusammenarbeit zwis- chen Polen und der Bundesrepublik Deutschland im Lichte der völkerrechtlichen Verträge, in: J. Kokot, K. Skubiszewski (eds.), Staatsangehörigkeit, soziale Grundrechte, wirtschaftliche Zusammenarbeit: nach dem Recht der Bundesrepublik Deutschland und der Volksrepublik Polen, Berlin: 1976, pp. 205-224; idem, Prawo państwa do uczestniczenia w handlu międzynarodowym i innych formach współpracy gospodarczej, 6 Przegląd Stosunków Międzynarodowych 23 (1981). 30 J. Kolasa, Odzyskanie przez Polskę niepodległości w 1918 r. w świetle prawa międzynarodowego, XVI 5(88) Przegląd Sejmowy 9 (2008). 31 S. Hubert, Rozbiory i odrodzenie Rzeczypospolitej, Zakład Prawa Politycznego i Prawa Narodów U. J. K., Lwów: 1937 and idem, Przywrócenie władzy państwowej (Ius postliminii): rozwój doktryny w teorii i praktyce prawa narodów do początków wieku XIX, Zakład Prawa Politycznego i Prawa Narodów U. J. K, Lwów: 1936. 32 J. Kolasa, Charakter prawny aktu unilateralnego państwa, in: J. Kolasa (ed.), Istota źródła w porządku prawa międzynarodowego, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2016, pp. 9-114. Professor Jan Kolasa (1926-2016) 17 was a member of the Senate and the University Financial Commission. At the Faculty of Law he led the Department of International Law (later expanded to also include European Law) from the late 1960s – after Professor Hubert stepped down – to the late 1990s. Professor Kolasa undertook numerous initiatives aimed at opening up the University of Wrocław to international cooperation. It was due to his great personal engagement, as well as that of Professor Knut Ipsen (promoted to doctor honoris causa by Jan Kolasa on 15 November 1994), that the cooperation between lawyers from the Universities of Bochum and Wrocław, which has flourished since the mid-1980s, was possible. Profes- sor Kolasa also supervised joint student projects between the undergraduates of Ger- man and Polish Universities: Ruhr University Bochum, European University Viadrina, Jagiellonian University and the University of Wrocław. One of the effects of such cooperation was a volume “Architecture of the European Security”, co-edited with Michał Rynkowski (Wrocław: 2002). Professor Kolasa also initiated close cooperation with the Council of Europe and the European Union, which resulted in, inter alia, the organisation of conferences on the relationship between international and domestic law,33 human rights, and the functioning of the democratic institutions in emergency situations.34 Thanks to his contacts he managed to invite numerous eminent guest lecturers to deliver lectures at the University of Wrocław. At the same time, he did not decline the various invitations he received to present papers at conferences and universities abroad (Princeton, Washington, Leningrad, Brno, Leipzig, The Hague). He served as visiting professor at Princeton University and Ruhr University Bochum. He was also a committed teacher, devoting particular attention to the rigidity and precision of legal reasoning and the responsible use of words. All his students could always count on his assistance, advice, and support in their academic and other activities. Professor Kolasa always abided by the principle that “the most important things should come first.” His students and colleagues were always encouraged to further their scientific development and to have an open approach to new challenges. Like his academic master Professor Hubert, he always considered taking care of and offering assistance to younger academics as “a sacrosanct university obligation”. Professor Kolasa carefully supervised 17 doctoral dissertations. Many of his former pupils continued their University careers and now serve as professors or assistant professors at various universities in Poland and abroad.

33 See J. Kolasa, The supranational character of Community law, in The relationship between international and domestic law. Proceedings of the UniDem Seminar organized in Warsaw on 19 to 21 May 1993 in cooperation with the University of Wroclaw and the Poznań Human Rights Centre and supported by the Phare Programme of the European Communities, European Commission for Democracy through Law, Council of Europe Press, Strasbourg: 1994, pp. 70-78. 34 See J. Kolasa, Rules on emergency powers in human rights treaties, in: Human rights and the functioning of the democratic institutions in emergency situations. Proceedings of the UniDem Seminar organized in Wrocław (Poland) from 3 to 5 October 1996 in co-operation with the University of Wrocław and with the support of the Japan Foundation, the European Commission, Bank Zachodni SA of Wrocław, the Konrad Adenauer Foundation, and the European Commission for Democracy through Law, Strasbourg: 1997, pp. 108-128. 18 Bartłomiej Krzan

The integration of international lawyers was always very important for Professor Kolasa. He initiated and took active part in the annual reunions of the Departments of International Law, where he often read papers on controversial topics35 and edited collections of conference papers.36 Professor Kolasa frequently served as a reviewer in the proceedings on conferral of a professorial title, for appointments to the post of professor, and in habilitation and doctoral proceedings. In addition to his University activities, Professor Kolasa served as a member of Advi- sory Legal Committee to the Ministry of Foreign Affairs and as an expert of the Chan- cellery of the Sejm (the Polish Diet). In 2001 he was appointed a member of the OSCE Court of Conciliation and Arbitration (with the renewal of his appointment in 2007). For many years he was also a Vice-Chairman of the Bioethical Commission at the Wrocław University of Medicine and was greatly involved in its activities. From 1989 onwards he actively participated in the Friends of Ossolineum Association (acting from 1998-2001 as its Vice-President). With his legal expertise he assisted the Ossolinski Na- tional Institute as the chancellor of the Board of Curators for two terms (1995-2005). He was also a member of the Wrocław Scientific Society, the Association of Princeton Alumni, and the International Law Association. Professor Jan Kolasa passed away suddenly on 13 August 2016. We will dearly miss him, not only as a truly eminent international scholar but first of all as a great mentor and inimitable master, a true civis academicus who managed to prove by his life what the University consists in, combining with success and utmost elegance the beautiful tradition of the Lemberg school of the law of nations with the requirements of the present times.

35 E.g. J. Kolasa, Normatywne podstawy jedności prawa międzynarodowego. Zarys problemu, in: J. Kolasa, A. Kozłowski (eds.), Rozwój prawa międzynarodowego - jedność czy fragmentacja?, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2007, pp. 11-38. 36 See e.g. J. Kolasa, A. Kozłowski (eds.), Prawo międzynarodowe publiczne a prawo europejskie, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2003.

XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016b 2016 PL ISSN 0554-498X

Roman Kwiecień*

The Nicaragua Judgment and the Use of Force – 30 Years Later

Abstract: In light of contemporary circumstances, on the 30th anniversary of the Nicaragua judgment it is worth revisiting and considering again certain legal problems decided by – and raised by – the ICJ judgment. This article addresses the importance of the judgment in terms of international legal regulations on the use of force. First and foremost, the article examines the concept of armed attack based on the “gravity” criterion elaborated by the Court and the exercise of the right of self-defence. Moreover, the relationship between customary international law and treaty law, as well as forcible counter-measures and military actions against non-State actors are also discussed in the article. It is argued that the “gravity” criterion used by the ICJ seems controversial and, consequently, may limit the right of self-defence. On the other hand, however, the judgment established a strong barrier to the realization of individual political interests by militarily powerful States. This is the Nicaragua judgment’s long-lasting legacy. In this sense the judgment has stood the test of time.

Keywords: armed attack, counter-measures, customary international law, Nicaragua judgment, non-State actors, self-defence, UN Charter, use of force

Introduction

On the 30th anniversary of the 1986 judgment of the International Court of Justice (ICJ or the Court) in the Nicaragua case, it is useful and timely to revisit and reassess its impact on the use of force in international law. The important question is whether the ICJ’s approach has indeed stood the test of time vis-à-vis the changing landscape of contemporary international affairs. This article does not touch upon the jurisdictional

* Full Professor of Law at Cracow University of Economics, Faculty of Finance and Law (Kraków, Poland), Chair of Public International and European Law. The author is thankful to Dr. Marcin Kałduński for his helpful remarks on an earlier draft of the article. The views expressed here are entirely those of the author. 1 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of Ame rica), Merits, Judgment, 27 June 1986, ICJ Rep 1986, p. 14 (Nicaragua). 22 Roman Kwiecień issues resolved in the 1984 judgment of the Court, although it is worth noting here the opposing opinions offered with respect to the judgement. For instance, James Crawford stated that he could not agree with most of the Court’s findings on jurisdiction in the Nicaragua case, whereas Alain Pellet found that the Court had demonstrated that “sometimes David can triumph over Goliath.” It goes without saying that the Nicaragua judgment has been of great significance for international law as a legal system. Both its dictum and its legal justification have been the subject of much controversy among scholars as well as judges themselves, as reflected by the fact that there were three dissenting opinions (Judges Jennings, Oda, Schwebel) and seven separate opinions (Judges Nagendra Singh, Lachs, Ruda, Elias, Ago, Sette-Cama, Ni) filed in the case. This article discusses the following problems: First, the relationship between customary international law and the United Nations Charter (the UN Charter); second, the concept of an “armed attack”; and third, the exercise of the right of self-defence, in particular its legal conditions and its relationship to forcible counter-measures. While special attention is devoted to these issues in the paper, the use of force against non- State actors as entities allegedly responsible for armed attacks, under the umbrella of right of self-defence, is also examined in the last section of the article.

1. Customary international law, treaty law, and the law on use of force

While this article places emphasis on jus ad bellum, one essential issue relating to international law as a whole must be mentioned at the outset; namely the relationship between treaty law and customary international law. The ICJ presented customary law as a background for treaties. The question of the material identity between them did not seem to be decisive for the Court. According to the Court, customary and treaty rules do not need to have the same content and they retain a separate existence. As the ICJ clearly underlined: There a number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if two States in question are bound by these rules both on the level of treaty law and that of customary international law, these norms retain a separate existence. (…) It will therefore be clear that customary international law continues to exist and apply, separately from treaty law, even when the two categories of law have an identical content.

J.R. Crawford, Jurisdiction and Applicable Law, 25(2) Leiden Journal of International Law 471 (2012). A. Pellet, The Nicaragua Case: ‘Mafiosi’s’ and ‘Veteran’s’ Approaches Combined, 25(2) Leiden Journal of International Law 484 (2012). ICJ, Nicaragua, pp. 95, 96, para. 178, 179. See also ibidem, pp. 93-95, para. 175-178 and ICJ, Nicaragua, Jurisdiction and Admissibility (1984), p. 424, para. 73. The Nicaragua Judgment... 23

The existence of identical rules in treaty law and customary law had been clearly recognized by the Court in the North Sea Continental Shelf case. In that decision, as well as in the Nicaragua judgment, the ICJ found no basis for holding that rules of customary law needed to be substituted for the applicable rules of treaty law, so that the customary international law had no further autonomous existence of its own in the given situation. This key issue regarding the relationship between treaty law and customary international law in the Nicaragua decision occurred in relation to the use of force. The ICJ considered the relationship between the UN Charter and customary law and underlined the absence of a substantial identity between the two sources as regards jus ad bellum. In particular, Article 51 of the UN Charter itself does not encompass all the legal issues regarding the exercise by a State of its “inherent right” to self-defence. According to the ICJ, it is customary international law which primarily does that, and its rules do not have the same content as the UN Charter. The prohibition of the use of force itself – continued the Court – is a part of customary international law confirmed in Article 2(4) of the UN Charter. In this article, the prohibition is recognised not only as a “principle of customary international law but also a fundamental or cardinal principle of such law.” Therefore, to put it briefly, the UN Charter and customary international law should be seen as mutually supplementing each other as far as the use of force is concerned.10 The ICJ confirmed its standpoint on the relationship between customary and treaty law in the Oil Platforms judgment.11 In addition the Institut de droit international took a similar position in its Resolution on the use of armed force of 27 October 2007.12

ICJ, North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), Judgment, ICJ Rep 1969, p. 3, 39, para. 63. ICJ, Nicaragua, p. 95, para. 177. Ibidem. It should be noted that the ICJ also underlined: “This could also be demonstrated for other subjects, in particular for the principle of non-intervention” (ibidem, p. 94, para. 176). Ibidem, p. 100, para. 190. In Armed Activities the ICJ declared that “the prohibition against the use of force is a cornerstone of the United Nations Charter”, but it did not express its opinion about the peremptory character of this prohibition (ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Rep 2005, p. 168, 223, para. 148). 10 For a thorough discussion of this subject, see A. Constantinou, The Right to Self-Defence under Customary International Law and Article 51 of the UN Charter, Bruylant, Bruxelles: 2000, passim. The ICJ’s view is strongly supported in the Polish scholarship by M. Kowalski, Prawo do samoobrony jako środek zwalczania terroryzmu międzynarodowego [The right to self-defence as a means of countering international terrorism], Difin, Warszawa: 2013, pp. 69-76; M. Kowalski, Ius ad bellum a systemowy charakter prawa międzynarodowego [Jus ad bellum and the systemic nature of international law], in: R. Kwiecień (ed.), Państwo a prawo międzynarodowe jako system prawa [The state and international law as a system of law], Wydawnictwo UMCS, Lublin: 2015, pp. 195-197. In this paper Kowalski also recognizes the right to self- defence as a general principle of law (p. 197). See also M. Kowalski in this volume. 11 ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment, 6 November 2003, ICJ Rep 2003, pp. 161, 186-187, para. 51. 12 Institut de droit international, Session de Santiago – 2007, Present Problems of the Use of Armed Force. Self- defence, available at: http://www.idi-iil.org/idiE/resolutionsE/2007_san_02_en.pdf (accessed 30 May 2017). 24 Roman Kwiecień

Paragraph 1 of the Resolution states: “Article 51 of the United Nations Charter, as supplemented by customary international law, adequately governs the exercise of the right of individual and collective self-defence.” However, the evolutionary and flexible nature of customary law needs to be borne in mind, i.e. its susceptibility to changes as a result of a general practice which is accompanied by opinio iuris. For this reason, according to Yoram Dinstein “it seems logical to believe that an eventual dissonance between Article 2(4) [of the UN Charter – R.K.] and customary international law can be anticipated.”13

2. The concept of armed attack and the ‘gravity’ criterion revisited

In Article 51 of the UN Charter, the concept of “armed attack” is at the heart of the use of force in self-defence. Therefore, the exercise of the right of self-defence and the understanding of armed attack play an essential role in the Nicaragua judgment. This “inherent right” of States has been established in both the UN Charter and in customary international law,14 which is one of the reasons for the controversies surrounding the judgment, both among States themselves and among scholars. The Nicaragua dictum has particularly enhanced the amount of scholarly criticism of the ICJ’s position on the concept of armed attack, both for its claims and omissions. Thus it is no coincidence that another article on the Nicaragua judgment published in this volume, by Michał Kowalski, concerns the concept of armed attack. There are three aspects of the concept of armed attack in the Nicaragua judgment, namely: the temporal aspect – when does an armed attack take place?; the rationae personae aspect – from whom does an attack emanate?; and the rationae materiae aspect – what constitutes an armed attack?15 The ICJ opined that the right of self-defence, as recognised in Article 51 of the UN Charter, required an armed attack by another State, and based its position with reference to the rationae materiae aspect of an armed attack

13 Y. Dinstein, War, Aggression and Self-Defence (3rd ed.), Cambridge University Press, Cambridge: 2001, p. 91. 14 ICJ, Nicaragua, pp. 102-104, para. 193-195, esp. p. 103, para. 194, where the ICJ stated: “[T]he existence of the right of collective self-defence is established in customary international law…”. There are, however, doubts whether the right of collective self-defence, unlike the right of individual self-defence, had existed before the UN Charter entered into force. At the time of the proceedings in the Nicaragua case this was just historical issue. Nonetheless it was the reason underlying some critical comments by some judges. Judge Oda, in his dissenting opinion, remarked that “the term ‘collective self-defence’, unknown before 1945, was not found in the Dumbarton Oaks proposals”, and at the same time he observed that “there was certainly no discussion whether the right of collective self-defence was inherent or not.” (ICJ, Nicaragua, Dissenting Opinion of Judge Oda, pp. 253, 256, paras. 91, 94). 15 A.A. Yusuf, The Notion of ‘Armed Attack’ in the Nicaragua Judgment and Its Influence on Subsequent Case Law, 25(2) Leiden Journal of International Law 461 (2012), p. 462. Judge Yusuf limits his remarks to the rationae materiae aspect of the concept. The Nicaragua Judgment... 25 on the “gravity” criterion. In a well-known part of the judgment the Court stated: “[i]t will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms.”16 Thus in the view of the Court, under international law – both customary and that of the United Nations system – States do not have the right of an armed response to acts which do not constitute an armed attack.17 It is also worth recalling that according to the Court acts directly or indirectly involving the use of force may constitute a breach of the customary principle of non-intervention.18 Nonetheless, they cannot as such be equated with an armed attack. There- fore, as the ICJ underlined, the support given to armed bands could not be equated with an armed attack. It may constitute a breach of the principle of the non-use of force, but such support is of a lesser gravity than an armed attack.19 The Court denied that under customary international law the provision of arms to the opposition in another State constituted an armed attack on that State.20 At the same time, the Court underlined that the United States could not justify an intervention involving the use of force against a third State in response to an action which did not amount to an armed attack.21 The “threshold” criterion established by the ICJ is recognised by some scholars as not unreasonable in and of itself. They posit that the ICJ’s aim was not to define an armed attack per se, but rather to characterise those acts of force that may justify the exercise of the right to collective self-defence.22 There is, however, a wide range of scholarly views on the relationship between an armed attack and the use of force under Article 2(4) of the UN Charter, including acts of aggression. One should keep in mind the essential legal controversies surrounding the use of force. The fiercest controversy concerns the rationae materiae characterisation of an aggression and an armed attack adopted by the Court. On one hand, there is the view that it does not recognise the concept of armed attack as tantamount to the concept of aggression,23 but on the other hand one can find a well-established opposite view.24 At the same time, there are differences of opinion on the relationship between an armed attack and aggression and the prohibition of threat or use of force against the territorial integrity or political independence of any State,

16 ICJ, Nicaragua, p. 101, para. 191. For criticism, see M. Kowalski in this volume, who recognises the ICJ’s view in this respect as “taken ex cathedra”. 17 ICJ, Nicaragua, p. 110, para. 211. 18 Ibidem, pp. 109-110, para. 209. Thus they constitute violations of the “principle of State sovereignty”, which for the Court is closely linked with the prohibition of the use of force and of non-intervention (p. 111, para. 212). In consequence, the ICJ stated that the United States violated Nicaragua’s sovereignty. 19 Ibidem, p. 127, para. 247. 20 Ibidem, p. 119, para. 230. 21 Ibidem, p. 127, 134, paras. 249, 269. 22 Yusuf, supra note 15, pp. 465-466; Ch. Gray, International Law and the Use of Force (2nd ed.), Oxford University Press, Oxford: 2004, pp. 141-158. 23 E.g. C. Mik, Agresja [Aggression], in: D. Pyć, J. Symonides (eds.), Wielka encyklopedia prawa [Large encyclopedia of law], vol. IV: Prawo międzynarodowe publiczne [Public international law], Fundacja Ubi societas, ibi ius, Warszawa: 2014, p. 22. 24 E.g. Y. Dinstein, Aggression, in: R. Wolfrum et al. (eds.), Max Planck Encyclopedia of Public Inter national Law, Oxford University Press, Heidelberg-Oxford: 2013, para. 33. 26 Roman Kwiecień as enshrined in Article 2(4) of the UN Charter. Thus, either an “armed attack” and/or “aggression” are qualified asindications of a violation of the prohibition of the threat or use of force, a view which is supported by the ICJ’s “gravity” criterion; or every act of infringement of the prohibition set forth in Article 2(4) of the UN Charter amounts to an armed attack/aggression.25 In the former case, only when the “gravity” criterion is met is the victim State entitled to claim the right of self-defence, whereas in the latter case every unlawful act of force triggers this right,26 although the very threat of the use of force cannot in the latter case be treated as an armed attack triggering the “inherent” right to self-defence.27 The ICJ refrained from elaborating in its opinion with respect to the lawfulness of a response to an imminent threat of armed attack, stating that “the Court expresses no view on that issue.”28 This is quite symptomatic omission, and indeed the issue remains very complex. The view equating an armed attack and an aggression with Article 2(4) of the UN Charter seems to be better justified than the opposite view based on the “gravity” criterion, supported by the ICJ. The former denies a gradation of violations of the prohibition under Article 2(4). Significant arguments in favour of this approach follow fromR esolution 3314(XXIX) of the UN General Assembly on Definition of Aggression.29 Article 1 of the Annex to Resolution 3314 defines an aggression as “the use of force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Defini tion.” Accordingly, there are no grounds for recognising an armed attack as a special form of an aggression, or an aggression as a special form of the unlawful use of force. This is also confirmed by Article 3 of the Annex and Article 8-bis (1-2) of the Rome Statute of the International Criminal Court of 17 July 1998. Viewed from such a perspective, a peremptory character can be attributed not only to the prohibition of armed attack/ aggression, but also to the prohibition contained in Article 2(4) of the UN Charter.

25 For more on those views generally, see Dinstein, supra note 13, pp. 165-183; Gray, supra note 22, pp. 108-120; M. Kowalski, Napaść zbrojna w prawie międzynarodowym – w poszukiwaniu współczesnej definicji [Armed attack in international law – a quest for a contemporary definition], 3 Studia Prawnicze 59 (2008); M. Kowalski, Armed Attack, Non-state Actors and a Quest for the Attribution Standard, 30 Polish Yearbook of International Law 101 (2010); Kowalski, supra note 10, pp. 76-83. Prior to the Nicaragua judgment the “gravity” criterion was supported by, e.g., K. Skubiszewski, The Use of force by States. Collective Security. Law of War and Neutrality, in: M. Sørensenn (ed.), Manuel of Public International Law, Palgrave Macmillan, London: 1968, p. 777. See M. Kowalski, The Use of Force: Contemporary Challenges in Light of Professor Skubiszewski’s Legacy, 18 International Community Law Review 109 (2016), pp. 120-128. 26 Cf. ICJ, Separate Opinion of Judge Simma, Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, ICJ Rep 2003, pp. 331-333, paras. 12-14. 27 Dinstein, supra note 24, para. 16. 28 ICJ, Nicaragua, p. 103, para. 194. However, in its advisory opinion in Nuclear Weapons the ICJ underlined that: “The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4 of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal” (ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep 1996, pp. 226, 246, para. 47). 29 UN GA A/Res/3314 (XXIX), 29th Sess., Supp. No. 31 (1974). The Nicaragua Judgment... 27

However, some authors present a quite different stance and challenge the equation of an armed attack and an aggression, and consequently, they are against the equating an armed attack with every illegal act of the use of force under Article 2(4) of the UN Char- ter.30 In this respect they therefore support the Nicaragua judgment. The ICJ itself referred to the definition of aggression embodied in theR esolution 3314(XXIX) as reflecting customary international law and equated an armed attack with an aggression.31 However, as has been mentioned, it refused to acknowledge “less grave forms” of the use of force as an armed attack32 and clearly confirmed this stance in its Oil Platforms judgment.33 The Eritrea-Ethiopia Claims Commission, in its Partial Award of 19 December 2005,34 and the Institut de droit international in its above-mentioned Resolution on the use of armed force of 2007, reiterated the Court’s stance. Paragraph 5 of the Resolution reads: An armed attack triggering the right of self-defence must be of a certain degree of gravity. Acts involving the use of force of lesser intensity may give rise to counter-measures in conformity with international law. In case of an attack of lesser intensity, the target State may also take strictly necessary police measures to repel the attack. It is understood that the Security Council may take measures referred to in paragraph 3. Some of the problems surrounding this approach will be discussed further in this article.

3. The right of self-defence and the conditions of its exercise, including frontier incidents and forcible counter-measures

The interdependent concepts of self-defence and an armed attack to a - largede gree create a self-regulating system. This is why the dictum of the Nicaragua judgment remains so important. But one has to keep in mind that the Court referred to the use

30 E.g. A. Randelzhofer, Article 51, in: B. Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed.), Berlin: 2002, pp. 795-796; G. Nolte, A. Randelzhofer, Article 51, in: B. Simma et al. (eds.), The Charter of the United Nations: A Commentary (3rd ed.), vol. II., Oxford University Press, Oxford: 2012, pp. 1401-1403; Mik, supra note 23, p. 22. 31 ICJ, Nicaragua, pp. 103-104, para. 195. 32 Here it is worthwhile to recall once again the following well-known sentence from the judgment: “[I]t will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms”. This standpoint was justified by the ICJ by,inter alia, the Declaration of the principles of international law of 1970 (UN GA A/Res/2625 (XXV)) (ICJ, Nicaragua, p. 101, para. 191). At the end of its judgment the ICJ once again underlined that the illegal use of force could be marked by “lesser gravity than an armed attack” (Ibidem, pp. 126-127, para. 247). 33 ICJ, Oil Platforms, pp. 186-187, para. 51, where the ICJ repeated the quoted above sentence from the Nicaragua judgment. 34 Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, Ethiopia’s Claims 1-8, 19 December 2005, para. 11, available at: https://pcacases.com/web/sendAttach/763 (accessed 30 May 2017). Judge Yusuf who found the ICJ’s stance with reference to armed attack “not, in itself, unreasonable” nevertheless criticized the Eritrea-Ethiopia Commission for its approach. He stated that the “threshold” of an armed attack outlined by the Commission “might be considered too high” (Yusuf, supra note 15, p. 470). 28 Roman Kwiecień of force in the Nicaragua decision in the broader context than that of self-defence only, since the ICJ also spoke of the forcible counter-measures and frontier incidents. As “measures short of war”, they often occur in international practice, including the frontier incidents which the Court called “incursions”. They touch the concept of an armed attack and form the “iron triangle”, so to speak, of contemporary jus ad bellum: armed attack, forcible counter-measures, and self-defence. The ICJ deliberated whether “measures which do not constitute an armed attack but may nevertheless involve a use of force”35 could be forcibly repelled by a target State and a third State acting within collective self-defence. In the Court’s view, States do not have a right of collective armed response to acts which do not constitute an armed attack.36 In other words, the wrongful act which gives rise to a lawful forcible collective response has to constitute an armed attack. But what about the right of individual self-defence? This “inherent right” cannot have a punitive character, nor be reprisals or counter-measures. The right of self-defence is aimed at halting and repelling an armed attack. Forc- ible counter-measures are recognised as unlawful in the Declaration on Principles of International Law of 1970, UN Security Council resolutions, and subsequent decisions of the ICJ.37 The difference between the exercise of the right of self-defence and forcible counter-measures is flexible in practice, and thus it may be difficult to distinguish between them. Frontier incidents depict this very clearly. In the Nicaragua decision the ICJ objected to treating each cross-border incursion in isolation as an armed attack. However, when speaking of trans-border incursions into Honduras and Costa Rica it seemed to accept the possibility of an accumulation of events amounting to an armed attack. The absence of their clear characterisation was justified as follows: Very little information is available to the Court as to the circumstances of these incursions or their possible motivations, which renders it difficult to decide whether they may be treated for legal purposes as amounting, singly or collectively, to an armed attack by Nicaragua on either or both States.38 Although the support of armed bands may constitute a breach of the principle of non-use of force and non-intervention, it cannot be equated, according to the Court, with an armed attack. It has a “lesser gravity” than an armed attack.39 Thus the Court

35 ICJ, Nicaragua, p. 110, para. 210. 36 Ibidem, para. 211. But in para. 249 (p. 127) the Court left an “open gate” when it stated that the wrongful forcible acts “could only have justified proportionate counter-measures”. However, they could not be used to justify counter-measures taken by a third State, which is why the Court recognised the US activities against Nicaragua as unlawful. 37 See Gray, supra note 22, pp. 121-125. 38 ICJ, Nicaragua, pp. 119-120, para. 231. In ICJ, Oil Platforms, pp. 186-187, para. 51 and in The Land and Maritime Boundary between Cameron and Nigeria (Cameron v. Nigeria: Equatorial Guinea inter- vening), Judgment, ICJ Rep 2002, p. 303, para. 323, the ICJ seemed to acknowledge an “accumulation of events” as an “armed attack”, but it did not develop then issue of an appropriate forcible response within the right of self-defence with respect to frontier incidents. 39 ICJ, Nicaragua, p. 127, para. 247. The Nicaragua Judgment... 29 distinguished, based on its “gravity” criterion, between an armed attack and a mere frontier incident. Yoram Dinstein labels the question of frontier incidents as “particularly bothersome”.40 Indeed, there is no reason in practice, based on the law, to remove small-scale incidents of the use of force from the spectrum of armed attacks. Other eminent scholars have supported this reasoning. Joseph L. Kunz wrote: “If ‘armed attack’ means illegal armed attack it means, on the other hand, any illegal armed attack, even a small border incident.”41 To which Gerard Fitzmaurice stated, in a rather ironical way, that: “[T]here are frontier incidents and frontier incidents. Some are trivial, some may be extremely grave.”42 Indeed, as far as the material aspect of armed attack is concerned, the concept elaborated by the ICJ based on the “gravity” criterion may undermine the right of self-defence. Moreover, “strictly necessary policy measures to repel the attack”, which were referred to in the Resolution of the Institut de droit international, do not need to be effective enough in a given case. One should remember that every act of use of force is assessed under the legal conditions of necessity and proportionality. This also concerns small-scale armed acts. Likewise, forcible responses to wrongful forcible acts are adjudged lawful or unlawful based on these conditions. Otherwise, i.e. in the event the right to forcibly respond to them within the concept of self-defence is denied, a targeted State can turn out to be the real victim State. However, the legal justification for actions of target States is not obvious. Taking into account the fundamental significance of peace and the alleged peremptory character of the prohibition of threat or use of force, one can argue that acts of armed attacks impose negative obligations on all States, i.e. the prohibition against supporting the aggressor or recognising the territorial acquisitions gained as a result of an armed attack. But does an act of armed attack create positive obligations, in particular, a right to actio popularis? After all, maintaining international peace and security is the obligation of the ‘international community as a whole’ and embodies a genuine community interest. As far as collective self-defence is concerned, it is worth referring once again to Yoram Dinstein’s opinion. According to him: an armed attack is like an infectious disease in the body politic of the family of nations. Every State has a demonstrable self-interest in the maintenance of international peace and security, for once the disease starts to spread there is no telling if and where it will stop. (…) As long as the system of collective security within the UN Organization is ineffective (…), collective self-defence constitutes the sole insurance policy against an armed attack.43 Nevertheless, the ICJ in the Nicaragua judgment established strict conditions on the exercise of the right of collective self-defence. Thus, one has to return nolens volens to the concept of armed attack.

40 Dinstein, supra note 13, p. 175. 41 J.L. Kunz, Individual and Collective Self-Defence in Article 51 of the Charter of the United Nations, 41 American Journal of International Law 872 (1947), p. 878. 42 G.G. Fitzmaurice, The Definition of Aggression, 1 International & Comparative Law Quarterly 137 (1952), p. 139. 43 Dinstein, supra note 13, p. 225. 30 Roman Kwiecień

The rights to self-defence of El-Salvador, Costa Rica and Honduras were invoked by the United States as a justification for its own actions against Nicaragua. The ICJ confirmed that, in customary international law, the prohibition of armed attacks might apply to the sending by a State of armed bands into the territory of another State, if such an operation, because of its scale and effects, could be classified as an armed attack rather than as a mere frontier incident. But at the same time, the Court denied that the concept of armed attack also included assistance to rebels in the form of the “provision of weapons or logistical or other support”, although such actions might be regarded as a “threat or use of force, or amount to intervention in the internal or external affairs of other States.”44 Therefore, according to the Court, not every act of the use of force amounts to an armed attack and justifies the exercise of the right of self-defence, including collective self-defence. Moreover, in the same paragraph the ICJ strongly underlined the crucial conditions for the exercise of collective self-defence: [i]t is the state which is the victim of an armed attack which must form and declare the view that it has been so attacked. There is no rule in customary international law permitting another State to exercise the right of collective self- defence on the basis of its own assessment of the situation. Where collective self-defence is invoked, it is to be expected that the State for whose benefit this right is used will have declared itself to be the victim of an armed attack.45 Another condition indicated by the Court to the exercise of collective self-defence is a request by the State which regards itself as the victim of an armed attack. The Court found that in customary international law there was no rule permitting the exercise of collective self-defence in the absence of such request on the part of the targeted state. It is an additional requirement to the requirement that the targeted State should have declared itself to have been attacked.46 The ICJ noted that neither El Salvador, Costa Rica nor Honduras declared themselves as the victims of an armed attack by Nicaragua during the relevant time. None of these States had requested military assistance within collective self-defence prior to the United States’ forcible intervention against Nicara- gua. For these reasons the conditions required for the exercise of the right of collective self-defence by the United States were not fulfilled in the Nicaragua case.47 What’s more, the ICJ underlined that “even if the United States activities in question had been carried on in strict compliance with the canons of necessity and proportionality, they would not thereby become lawful.”48 According to the Hague Court, contrary to what the US claimed, there was neither an alleged armed attack nor an alleged right to collective self-defence. Both must be rooted in a direct and clear declaration of a targeted

44 ICJ, Nicaragua, pp. 103-104, para. 195. 45 Ibidem, p. 104, para. 195. 46 Ibidem, p. 105, para. 199. This position has been supported by the Institut de droit international in its resolution of 2007 on the use of force. Paragraph 8 of the resolution states: “Collective self-defence may be exercised only at the request of the target State”. 47 ICJ, Nicaragua, pp. 120-122, paras. 232-236. 48 Ibidem, p. 122, para. 237. The Nicaragua Judgment... 31

State. One may note that such a stance on the part of the Court restricts to some extent the freedom of action in exercise of the right of collective self-defence by a non-target State within actio popularis. It may be supposed that for this reason Judge Jennings, in his Dissenting Opinion, as well as some scholars criticised the Court’s requirements of a declaration and a request by the victim State.49 Consequently, opinions have been expressed that the Nicaragua judgment may undermine the right of self-defence,50 and even that it constitutes a limitation on the right to collective self-defence.51 An alternative explanation of the ICJ’s position has also been presented. Christine Gray argues that the Court in the end took a more relaxed approach toward the requirement of a declaration and a request than in its earlier discussion of the applicable law. She states: In fact it is clear that the Court did not require a declaration and a request. Nor did it intend the declaration and request to be decisive as to legality. (…) The Court thus apparently took the absence of a declaration, a request for assistance (and of a report to the Security Council) simply as confirmation that there had been no armed attack.52 This view seems to be justified to the extent it underlines the existence of an objective factor, i.e. an act of armed attack. But one should bear in mind that a declaration and an express request for assistance by the target State are not of secondary importance, because they themselves seem to form an essential part of the concept of armed attack. In this sense their absence prohibits a third State from exercising of the right of collective self-defence. Moreover, a report to the Security Council is necessary, as provided in Article 51.53 In this light the legal framework of the right of self-defence, following from both customary international law and the UN Charter, establishes a barrier to the realisation of political interests by forcible measures, which had been underlined by the Court in the Corfu Channel case. It is worth recalling the ICJ’s assessment in that judgment: The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defect in international organization, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here; for from the nature of things, it would be reserved for the most

49 In his Dissenting Opinion Judge Jennings doubted whether the requirement of declaration and request was realistic in all instances (ICJ, Nicaragua, Dissenting Opinion of Judge Jennings, pp. 544-545. Cf. also D.W. Bowett, Self-Defence in International Law, Manchester University Press, Manchester: 1958, p. 216; B. Simma in: B. Simma (ed.), supra note 30, p. 803. 50 E.g. R. Higgins, Problems and Process: International Law and How We Use It, Clarendon Press, Oxford: 1994, p. 250. 51 Dinstein, supra note 13, pp. 238-239; R.St.J. MacDonald, The Nicaragua Case: New Answers to Old Questions?, 24 Canadian Yearbook of International Law 127 (1986), p. 150. 52 Gray, supra note 22, p. 153. 53 This was strongly underlined in the Partial Award by the Eritrea Ethiopia Claims Commission (Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, Ethiopia’s Claims 1-8, para. 11). 32 Roman Kwiecień

powerful States, and might easily lead to perverting the administration of international justice itself.54 Taking into account these remarks, one may offer the following interpretation of this aspect of the Nicaragua judgment: the absence of a declaration and a request of the target State prove that there was no act of armed attack, since the declaration and request are not so much a confirmation of an armed attack as an essential element thereof. It is these factors – supplemented by a report to the Security Council, as the institution vested by the UN Charter with a virtually unlimited discretion to determine in what exact circumstances “any threat to the peace, breach of the peace, or act of aggression” has occurred55 – that are the criteria to be used in assessing the lawfulness of actions taken in collective self-defence. Paradoxically enough, despite the well-known highly politicised nature of the decision-making process in the Security Council, which is responsible for a number of the reprehensible abandonments, the Security Council nevertheless seems to be the institution deemed to ensure the objectiveness of the “administration of justice” in the field of the use of force, including the right to collective self-defence. The exercise of the right of collective self-defence should be distinguished from so- called “intervention by invitation”. Both actions involve different goals in practice. The former seeks to stop an armed attack, and the latter is aimed at supporting an internationally recognised government of a State which is under the threat of or subject to the use of external military force. However, the difference between them is not always clear, since States quite often invoke in practice a broad “margin of appreciation” in this respect, which can put the lawfulness of the use of force into question. For instance, the USSR did not invoke the right of self-defence during its intervention in Hungary in 1956, but did so in Czechoslovakia in 1968 and in Afghanistan in 1979.56 Interesting enough, the ICJ in the Nicaragua decision did not comment widely on the relationship between the United States and Costa Rica, Honduras and Salvador, which could have been quite interesting in this context. The judgement did not question, however, the exercise of the right of collective self-defence on the territory of a non-target State. What’s more, it seems to justify the exercise of this right on the territory of the alleged aggressor, i.e. Nicaragua, in the case at hand. Earlier as well as subsequent practice have

54 ICJ, Corfu Channel, Merits, ICJ Rep 1949, pp. 4, 35. 55 Dinstein, supra note 24, para. 11. 56 It would be hard to indicate a State that had committed acts of an armed attack against either Czechoslovakia or Afghanistan. Another reason for questioning the lawfulness of Soviet actions against those States was the political dependence of the Czechoslovak and Afghan governments on the USSR. See L. Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 56 British Yearbook of International Law 189 (1985). She also maintained that State practice since the 1950s had limited the legal power to issue such an invitation to the case of a counter-intervention (pp. 242-252). Today this view seems to be shared by e.g. C. Kreß, Major Post-Westphalian Shifts and Some Important Neo- Westphalian Hesitations in the State Practice on the International Law on the Use of Force, 1 Journal of the Use of Force and International Law 11 (2014), pp. 17-18. The Nicaragua Judgment... 33 confirmed this standpoint, which was proved by, e.g. the military action within the collective self-defence against Afghanistan of 2001, and it seems to be well-established also today. Based on the Caroline incident and Webster’s formulation there are three conditions of legality of actions within the right self-defence: necessity, proportionality, and im- mediacy. They have been regarded as the “hard core” of the exercise of self-defence, and have been called “canons” by the Court. The last one in practice is absorbed the first two, i.e. necessity and proportionality. Necessity itself is recognised as a primary condition of the legality of self-defence, but that does not mean it is of secondary importance to proportionality. They function together as a self-regulating system. Under the necessity condition the defending State is obligated to verify that a reasonable settlement of the conflict via non-forcible means is non-attainable,57 that is, that self-defence is the ultima ratio, whereas the proportionality condition means that the (planned) actions must be proportionate to their aims and, consequently, not extend beyond the legitimate aims.58 In other words, the proportionality condition points toward a symmetry or an approximation, in terms of scale and effects, of a forcible response. In theNicaragua judgment the importance of the proportionality condition is obvious throughout the entire area of the use of force. The Court underlined that every intervention involving the use of force could be only legally justified if it met the proportionality condition.59 Nonetheless there is some confusion over the meaning of the term in this context. Two competing tests of proportionality are mentioned in the legal scholarship, namely, the “tit for tat” and the “means-end” tests.60 In any case both conditions – necessity and proportionality – should be investigated together and ad casum. Necessity is discussed by scholars both together with proportionality61 and separately.62 It is mainly the principle of necessity that excludes the illegality of actions in self-defence and, at the same time, imposes international legal responsibility on States. Article 21 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts states: “[t]he wrongfulness of an act of a State is precluded if the act constitutes

57 Cf. Dinstein, supra, note 13, p. 208. 58 Cf. S. Etezazian, The Nature of the Self-defence Proportionality Requirement, 3(2) Journal of the Use of Force and International Law 260 (2016). 59 ICJ, Nicaragua, p. 127, para. 249. 60 See D. Kretzmer, The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum, 24(1) European Journal of International Law 235 (2013); G. Nolte, Multipurpose Self-Defence, Proportionality Disoriented: A Response to David Kretzmer, 24(1) European Journal of International Law 283 (2013); T. Christodoulidou, K. Chainoglou, The Principle of Proportionality from a Jus Ad Bellum Perspective in: M. Weller (ed.), The Use of Force in International Law, Oxford University Press, Oxford: 2014, pp. 1187, 1192-1195. 61 E.g., Gray, supra note 22, pp. 120-126. 62 E.g. O. Corten, Necessity, in: M. Weller (ed.), supra note 60, p. 861; Dinstein, supra note 13, pp. 207-208; J. Gardam, Necessity, Proportionality and the Use of Force by States, Cambridge University Press, Cambridge: 2004, passim, esp. pp. 4-18, 148-185; Kowalski, supra note 10, pp. 93-103; J. Kranz, Wojna, pokój czy uspokajanie? Współczesne dylematy użycia siły zbrojnej [War, peace, or appeasement? Contemporary controversies on the use of force], Centrum Stosunków Międzynarodowych, Warszawa: 2006, pp. 82-87. 34 Roman Kwiecień a lawful measure of self-defence taken in conformity with the Charter of the United Nations.”63 The comments on this rule directly combine a legally justified self-defence with necessity and proportionality.64 This shows the dual-dimensionality of the right of self-defence. As a primary rule, the right of self-defence justifies a given use of force, while as a secondary rule it precludes its illegality and violations of Articles 2(4) and 51 of the UN Charter. This is exactly the dimension where the conditions of necessity and proportionality fulfil a crucial role. In theNicaragua case the ICJ decided that the violations committed by the United States could not be justified by collective self-defence because, as the Court recognized, “the necessary circumstances are lacking.”65 It added that the principle that “self-defence would warrant only measures which are propor- tional to the armed attack and necessary to respond it” was “a rule well established in customary international law.”66 This was even more distinctly underlined by the Court in its advisory opinion on Nuclear Weapons67 and in the Oil Platforms judgment.68

4. Non-State actors and the right of self-defence: a brief sketch

The last issue discussed in this article directly concerns the rationae personae aspect of an armed attack, namely, whether an act of armed attack can only be attributed to States. In the Nicaragua decision the ICJ did not consider this problem broadly enough. It was inclined to attribute the armed activities in El Salvador, Honduras, Costa Rica and Nicaragua only to Nicaragua and the United States, respectively.69 Nonetheless, the problem has special significance for the right of self-defence in the current state of international affairs. In the UN General Assembly Definition of Aggression, an armed attack/aggression has been situated within inter-State relations. It follows that the exercise of the right of self-defence implies the attribution of armed attacks committed

63 UN Doc. A/Res/56/83. 64 E.g., J. Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries, Cambridge University Press, Cambridge: 2002, p. 167; J.-M. Thouvenin,Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Self-Defence, in: J. Crawford, A. Pellett, S. Ollenson (eds.), The Law of International Responsibility, Oxford University Press, Oxford: 2010, pp. 462-463. 65 ICJ, Nicaragua, p. 128, para. 252. 66 Ibidem, p. 94, para. 176. 67 ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Rep 1996 (I), p. 226, 245, para. 41. There the ICJ stated: “The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law”. 68 ICJ, Oil Platforms, pp. 198-199, para. 76-77, where the ICJ underlined that these conditions for the exercise of the right of self-defence in international law were well settled. In its judgment the ICJ was unable to find, due to the non-fulfilment of these conditions, that the attacks made on the oil platforms by the US could have been justified as acts of self-defence. 69 ICJ, Nicaragua, p. 128, para. 252. The Nicaragua Judgment... 35 by non-State actors, e.g. terrorist organizations, to a State.70 However, this view seems to be hard to justify in contemporary reality, both under international practice and in the opinio juris of many States. Hence an opposite approach is reasonable enough to be supported, i.e. one which condones the exercise of individual and collective self-defence by States against non-State actors.71 Security Council resolution 2249 of 20 November 2015 should be mentioned in this context.72 In paragraph 5 it calls upon Member States that “have the capacity to do so to take all necessary measures, in compliance with international law” to “eradicate the safe haven” established over significant parts of Iraq and Syria by ISIL (Da’esh). These acts of force seem to be justified by the right of collective self-defence of Iraq.73 Last but not least, Article 51 of the Charter itself is worth evoking in this context. It speaks only of an armed attack against a State, but does not refer to the perpetrators committing it, i.e. from whom such an attack emanates.74 Owing to new tendencies with respect to the use of force, this open formula of Article 51 is turning out to be its virtue, thus, making it possible to treat the Charter as a “living instrument”.

Final remarks

It is obvious, even a cliché, to say that the Nicaragua judgment touches upon crucial problems of jus ad bellum. However, one should bear in mind that the judgment was issued in the context of a certain factual background, and it has binding force “between the parties and in respect of that particular case”. These limitations and res-

70 In the Polish scholarship this view is supported by Kowalski, supra note 10, pp. 188-202; Kowalski, supra note 25, p. 101 and in this volume. 71 This is also the stance taken by the Institut de droit international. Paragraph 10 of its Resolution of 2007 states: “In the event of an armed attack against a State by non-State actors, Article 51 of the Charter as supplemented by customary international law applies as a matter of principle. […] (ii) If an armed attack by non-State actors is launched from an area beyond the jurisdiction of any State, the target State may exercise its right of self-defence in that area against those non-State actors.” See also Dinstein, supra note 24, para. 31. 72 S/RES/2249 (2015), 20 November 2015. The resolution has been a source of controversy among scholars. See e.g. R. Kwiecień, Czy “wojna z terroryzmem” to bellum iustum? O związkach etyki i prawa w świetle rezolucji Rady Bezpieczeństwa 2249 (Is the “war on terror” bellum justum? The relationship between ethics and law in Security Council Resolution 2249], in: B. Krzan (ed.), Ubi ius, ibi remedium, BECK, Warszawa: 2016, p. 323; M. Wood, The Use of Force in 2015 with Particular Reference to Syria, Hebrew University of Jerusalem Legal Studies Research Paper Series, 2015 No. 16-05, p. 6. 73 Cf. Wood, supra note 72, pp. 6-11. 74 This omission has been raised as an argument by a few judges in other judgments oftheICJ. See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ, Separate Opinion of Judge Higgins, ICJ Rep 2004, pp. 207, 215, para. 33 and ibidem, Separate Opinion of Judge Kooijmans, pp. 219, 229-230, para. 35; ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Separate Opinion of Judge Simma, ICJ Rep 2005, pp. 334, 336-337, paras. 8-11. 36 Roman Kwiecień ervations are recognised by most scholars as the source of the Court’s omissions and controversial statements. But those circumstances should not be used as justification of the entire judgment. Some important problems were simply omitted, including the rationae personae aspect of an armed attack. And insofar as the rationae materiae aspect is concerned, the “gravity” criterion elaborated and used by the Court can be seen as highly controversial and doubtful. At the same time however, the Court’s stance has revived the debate among States and scholars, which is its great virtue. The legal framework for the exercise of collective self-defence constitutes another significant aspect of the judgment. A declaration by the victim State that it is under attack, its request for forcible assistance, the filing of a report to the Security Council, as well as the conditions of necessity and proportionality seem to enhance and clarify the legal criteria for the exercise of the right of self-defence. As such, the judgment has established a strong barrier against the realisation of arbitrary political interests by militarily powerful States. This is theNicaragua judgment’s long-lasting legacy and provides the foundation for making a serious argument that the Court’s approach has stood the test of time. XXXVI POLISH Yearbook of international law DOI 10.7420/pyil2016c 2016 PL ISSN 0554-498X

Michał Kowalski*

ORIGINAL SIN REAFFIRMED: THE NICARAGUA JUDGEMENT’S IMPACT ON THE NOTION OF ARMED ATTACK AS THE MOST GRAVE FORM OF THE USE OF FORCE

Abstract This article is referenced to the thirtieth anniversary of the ICJ’s Nicaragua judgement on the merits of 1986. It acknowledges the significance of this much-debated judgement for the modern international law on the use of force (jus ad bellum). However the text focuses on one aspect of the judgment only, i.e. the definition of the notion of “armed attack” as the most grave form of the use of force. The impact of the judgement in this respect is critically analysed. It is argued that the introduction to the UN Charter text of undefined notions of the use of force, aggression, and armed attack may be labelled as the “original sin” of contemporary jus ad bellum, as it results in conceptual obscurity. It is also claimed that the ICJ reaffirmed this original sin in its Nicaragua judgment because it explicitly argued for the notion of “armed attack” as the most grave form of the use of armed force and, in consequence, distinguished it from the other, lesser forms of the use of force, while failing to introduce any sort of clarity in the conceptual ambiguity of jus ad bellum. The article also offers some remarks de lege ferenda and suggests abandoning the gravity criterion, which would require abandoning the well-established judicial and doctrinal interpretation approaches to jus ad bellum.

Keywords: aggression, armed attack, ICJ, International Court of Justice, jus ad bellum, Nicaragua, use of force

Introduction

On the twenty-fifth anniversary of the Nicaragua judgement, the editors of a special section of the Leiden Journal of International Law commented that “the case

* Associate Professor, Faculty of Law and Administration, Jagiellonian University in Kraków (Poland). 1 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Rep 1986, p. 14 (Nicaragua). 38 Michał Kowalski could serve as a textbook for an ‘Introduction to Public International Law’.” This is indeed very true and obviously nothing has changed in this respect in the five years that have passed in the meantime. Still, as every good handbook, the Nicaragua judgement provokes continuous assessments, including highly critical ones. Good law handbooks should blaze an intellectual trail but also should leave a reader with open questions, stimulating further study. As such, they are indispensable not only for the freshmen but also – being a kind of an intellectual catalyst – for more experienced researchers, as well as practitioners. TheNicaragua case definitely meets these criteria. Notwithstanding the complexity of the Nicaragua case it is no doubt the international law regulation on the use of force – referred to in the present text traditionally as jus ad bellum – which is at the core of the 1986 judgement on the merits. Leaving aside for the time being the substantive pronouncements of the International Court of Justice (ICJ) in this respect, two important aspects of a more general character seem to be striking from today’s perspective. Firstly, the thirty years that have passed since 1986 prove that we are still dealing with the same legal problems and questions with respect to jus ad bellum. Not much has changed, as we still discuss such fundamental issues as precise definitions of the very basic concepts of use of force, aggression, and armed attack. What’s more, the challenges facing the modern jus ad bellum – although undeniable – may seem to be less novel than is often assumed. In the context of the Nicaragua case, the problem of use of force by and against non-state actors serves as the most significant example. The issue that is deservedly labelled as the most prominent debate within jus ad bellum in the twenty-first century was already at the heart of the debate thirty years ago. Secondly, the Nicaragua case illustrates the obvious truth that all legal deliberations on use of force are fully dependent on the factual circumstances of a particular conflict, which are regularly and intentionally blurred by the parties. The jumble of facts is the background factor that judges, as well as other legal commentators on use of force disputes, have always been confronted with. This is especially true when the involvement of States in the actions of non-state actors must be considered. The pending armed conflict in the Ukrainian Donbas is a telling current example. Yet the fact that states regularly obscure the factual circumstances and try to present them in a way which allows them to escape potential legal responsibility for the illegal use of force may

C. Hoss, S. Villalpando, S. Sivakumaran, Nicaragua: 25 Years Later, 25 Leiden Journal of Interna tional Law 132 (2012); see also generally J.R. Crawford, Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America), in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford: 2012, p. 173. For a general overview of the jus ad bellum issues raised in the Nicaragua judgment, see R. Kwiecień in this volume of the Polish Yearbook of International Law. M. Kowalski, The Use of Armed Force: Contemporary Challenges in Light of Professor Skubiszewski’s Legacy, 18 International Community Law Review 112 (2016). With respect to the ICJ’s competence in receiving and interpreting evidence and in fact-finding in the context of the Nicaragua case, see generally P.S. Reichler, The Impact of the Nicaragua Case on Matters of Evidence and Fact-Finding, 25 Leiden Journal of International Law 149 (2012). ORIGINAL SIN REAFFIRMED... 39 be interpreted – at least to some extent – in a positive sense too. It proves that states tend to play on facts in order to escape legal responsibility rather than to challenge or question the binding legal principles regulating the use of force. Consequently, the status of the prohibition of the use of force as the basis of the modern jus ad bellum seems to be consolidated rather than jeopardized. The two above-mentioned aspects – although not being particularly ground-break- ing in themselves – seem to me important as together they place the current debate over the evolution of jus ad bellum in the proper perspective. This perspective mitigates the assumption that modern international law regulation of the use of armed force is fundamentally losing its relevance nowadays. In this article it is claimed that this assumption is wrong. TheNicaragua judgement – with its solid inter-state approach to jus ad bellum linked with its clear and perceptive statements on the relationship between jus ad bellum norms as established under the United Nations Charter (UN Charter) and under customary international law – still represents an attractive and accurate attempt to deal with modern challenges. The ICJ explicitly declared as parallel binding both the UN Charter norms and customary norms regulating the use of force, being substantively coincident yet not exactly overlapping. Thus the role of customary law in this respect is crucial as it may supplement and modify the existing jus ad bellum norms under the UN Charter. The consequence of this approach is the need for a most careful and detailed elaboration of any claimed changes or modifications which are to be introduced to the jus ad bellum regime under customary law. This approach thus provides for the modern alignment of the jus ad bellum regime vis-à-vis new challenges, while at the same time securing the safeguards of the UN Charter paradigm. Yet at the same time the legal framework of jus ad bellum includes some serious loopholes, which could lead to questioning its systemic character. One of them – as will be argued in this text – may be labelled as the “original sin” of modern jus ad bellum because it both underlies and highlights all the other weaknesses. Namely, this is the introduction into the UN Charter text of undefined notions of the use of force, aggression, and armed attack, thereby obscuring the mutual relationship between them. This has resulted in a conceptual uncertainty which persists until today. And it is claimed here that in the Nicaragua judgement the ICJ reaffirmed this original sin by explicitly establishing the notion that an armed attack is a grave form of the use of armed force and, in consequence, distinguishable from other, lesser forms of the use of force. At the same time the ICJ’s pronouncements in this respect failed to introduce any sort of order to the conceptual ambiguity of jus ad bellum.

1 UNTS VXI. For more on this issue, see M. Kowalski, Some Remarks on the Relation of the Jus ad Bellum Regulations under the UN Charter and Customary International Law – Why Does It Matter so Much?, Wrocław Review of Law, Administration and Economics, Special Issue: Essays in Memory of Professor Karol Wolfke, 2017 (forthcoming). Cf. W. Czapliński, Customary International Law on the Use of Force, Wrocław Review of Law, Administration and Economics, Special Issue: Essays in Memory of Professor Karol Wolfke, 2017 (forthcoming). 40 Michał Kowalski

1. Armed attacks and frontier incidents in Nicaragua and afterwards

The ICJ explicitly pointed out in the Nicaragua judgement the necessity “to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms.” It also stated that some activities of an armed nature (“the dispatch by one State of armed bands into the territory of another State, the supply of arms and other support to such bands” (in the context of the case concerned) “may well constitute a breach of the principle of the non-use of force and an intervention in the internal affairs of a State, that is, a form of conduct which is certainly wrongful, but is of lesser gravity than an armed attack.” Thus, in the statements quoted above the ICJ unambiguously established that not every illegal use of force amounts to an armed attack, and that the criterion for classification of a particular armed act as an “armed attack” is its gravity. However, the ICJ stopped at this point and did not elaborate on this problem further. Thus the crucial question of a precise determination of what constitutes “the most grave forms of the use of force”, which cause an illegal armed act to be qualified as an “armed attack”, was left open. The only suggestion in this regard that could be detected in the Nicaragua judgement was the laconic reference to “a mere frontier incident”, classified as distinct from an armed attack due to its “scale and effects”10 – the terms themselves being left open and ambiguous. The fact that the ICJ abstained from any further elaboration of the notion of an “armed attack” in its Nicaragua judgement is all the more regrettable if we take into account its statements on the relationship between jus ad bellum under the UN Charter and under customary law. When the ICJ plausibly argued for the supplementary role of customary law towards the UN Charter’s regulation of the use of force it explicitly referred to the notion of an “armed attack”, stating that its definition “is not provided in the Charter, and is not part of treaty law.”11 It is also quite characteristic that the ICJ, while referring to the definition of the concept of an “armed attack”, added – somewhat enigmatically – “if found to exist”.12 Accordingly, one could expect from the ICJ a more careful elaboration of the issue whether a customary definition of the notion of “armed attack” did in fact exist and – if the answer were affirmative – the scope of the definition. Such elaborations would have obviously demanded a detailed reference to state practice and to the opinio juris. Hence the ICJ’s pronouncements

ICJ, Nicaragua, para. 191. Ibidem, para. 247. 10 Ibidem, para. 195. 11 Ibidem, para. 176. Indeed, the travaux préparatoires of the UN Charter does not help in this regard. J.A. Green, The International Court of Justice and Self-Defence in International Law, Hart Publishing, Oxford: 2009, p. 114; T. Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice, Cambridge University Press, Cambridge: 2010, pp. 60-68. 12 ICJ, Nicaragua, para. 176. ORIGINAL SIN REAFFIRMED... 41 that the most grave forms of the use of force constituted an “armed attack” were left unsupported. It should be noted and acknowledged, however, that the ICJ’s position was in line with some previous doctrinal positions referring to the criterion of gravity. Ian Brownlie wrote in 1963: “The real problem is to determine what is an attack or resort to force as a matter of law. A requirement stated by some writers is that the use of force must attain a certain gravity and that frontier incidents are excluded.”13 Krzysztof Skubiszewski was less equivocal when he commented in 1968: “The notion of an armed attack conveys the idea of the gravity of a situation through the amount of force employed. In frontier incidents these elements are usually absent.”14 In addition he cited a practical example, when “in 1956 the United Nations implicitly refused to regard the intrusions into Israeli territory by the fedayeen units operating from Egyptian territory as an armed attack by Egypt against Israel.”15 However, the state practice in the UN era prior to the Nicaragua judgement is, however, rather modest and seems mostly ambiguous. It was analyzed by James A. Green, who rightly, yet rather euphemistically, stated that the “examination of pre-1986 state practice and supporting opinio juris indicates that it is difficult to conclude upon the customary international law status of the ‘armed attack as a grave use of force’ criterion as it existed when the Nicaragua merits decision was delivered by the ICJ.”16 Thus the ICJ’s position in this regard was unsupported and taken ex cathedra. Unfortunately, such an approach in declaring the customary status of particular norms turned out not to be an isolated instance in the subsequent ICJ case law, including that on the use of force. Not surprisingly, the ICJ’s position met with criticism.17 Nonetheless seventeen years later the ICJ soundly reaffirmed this position in the Oil Platforms judgement, including direct references to the Nicaragua judgement in this respect.18 The gravity

13 I. Brownlie, International Law and the Use of Force by States, Clarendon Press, Oxford: 1963, p. 366; In this respect Ian Brownlie referred only to the opinions of Hassan A.H. Al Chalabi as well as of Mayers S. McDougal and Florentino P. Feliciano. Yet one can also refer to the views of Cornelis Arnold Pompe, with references to pre-war practice: C.A. Pompe, Aggressive War: An International Crime, Martinus Nijhoff, The Hague: 1953, pp. 55-56. 14 K. Skubiszewski, Use of Force by States. Collective Security. Law of War and Neutrality, in: M. Sørensen (ed.), Manual of Public International Law, Macmillan, London: 1968, p. 777. 15 Ibidem. 16 Green, supra note 11, p. 119. 17 See the views referred to by Christine Gray: Ch. Gray, International Law and the Use of Force, Oxford University Press, Oxford: 2008, pp. 179-180; see also Ruys, supra note 11, pp. 143-149. 18 ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgement, 6 November 2003, ICJ Rep 2003, paras. 51 and 64. On the other hand, I do not share the opinion that the gravity criterion as pronounced in the Nicaragua judgement applied to armed acts by irregular armed bands (non-state actors) only, and that it was later extended in the Oil Platforms judgement to acts by regular State armed forces. See e.g. D. Raab, ‘Armed Attack’ after the Oil Platforms Case, 17 Leiden Journal of International Law 719 (2004), pp. 724-725; R. Wedgwood, The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense, 99 American Journal of International Law 57 (2005); cf. A.A. Yusuf, The Notion of ‘Armed Attack’ in the Nicaragua Judgement and Its Influence on Subsequent Case Law, 25 42 Michał Kowalski criterion was also acknowledged in the decisions of the Eritrea Ethiopia Claims Com- mission19 and the Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG).20 The former stated – when considering armed actions between Eritrea and Ethiopia in the initial period of the conflict – that “localized border encoun- ters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter” and then concluded that it was “satisfied that these relatively minor incidents were not of a magnitude to constitute an armed attack by either State against the other within the meaning of Article 51 of the UN Charter.”21 Similarly, the IIFFMCG accepted – with reference to the ICJ case law – the assumption that “military actions constitute an armed attack in the sense of Art. 51 of the UN Charter only if they surpass a certain threshold” and consequently applied the gravity criterion to justify the legal qualification of armed actions taken by all parties to the conflict as armed attacks.22 The above examples seem to prove that the gravity criterion forms de lege lata an element of the definition of the notion of an armed attack, and today this is the legal standpoint prevailing in international law scholarship.23 The position of the Institut de droit international (IDI) is quite representative in this respect. Its resolution on self- defence of 2007 includes the following explicit statement: “[a]n armed attack triggering the right of self-defence must be of a certain degree of gravity.”24 Nevertheless the distinction between various illegal armed acts based on their gravity, and their respective legal qualification into armed attacks and less grave forms of the prohibition on use of force violation merits serious disapproval.25

Leiden Journal of International Law 464 (2012). Indeed each of these cases referred to the use of force of a different character. Yet, neither the Nicaragua nor the Oil Platforms judgements allow for such interpretation. In the former the ICJ referred to the question of qualification of illegal use of force as an armed attack in the broader context of the prohibition on the use of force in general; and in the latter the ICJ directly and unequivocally referred in this respect to the Nicaragua judgement without any suggestion whatsoever to an alleged extension of the approach taken. However, since the Oil Platforms judgement the discussion on this issue has been negligible. 19 Eritrea Ethiopia Claims Commission, Partial Award, Jus Ad bellum, Ethiopia’s Claims 1-8, 19 December 2005. 20 Independent International Fact-Finding Mission on the Conflict in Georgia, Report, Vol. II, September 2009. 21 Eritrea Ethiopia Claims Commission, Partial Award, Jus Ad bellum, Ethiopia’s Claims 1-8, paras. 11-12. 22 IIFFMCG, Report, p. 245; see also pp. 244-246, 256-258, 263, 268-269, 286 and 288. 23 See e.g. O. Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law, Hart Publishing, Oxford: 2012, p. 403. 24 Institut de droit international, Tenth Commission, Present Problems of the Use of Armed Force in International Law, A. Self-defence, Resolution of 27 October 2007, Session de Santiago – 2007, para. 5; available at: http://www.justitiaetpace.org/idiE/resolutionsE/2007_san_02_en.pdf, (accessed 30 May 2017). 25 See M. Kowalski, Prawo do samoobrony jako środek zwalczania terroryzmu międzynarodowego [Right to self-defence as a means of counter-terrorism], Difin, Warszawa: 2013, pp. 133-141. ORIGINAL SIN REAFFIRMED... 43

2. The gravity criterion under criticism

Obviously – as has been already mentioned above – the coherent categorization of armed acts based on the gravity criterion is hardly possible, as the gravity threshold remains most imprecise. Consequently, the qualification of particular armed acts as an armed attack is arbitrary. The problem can be well exemplified by the ICJ’s considerations in its Oil Platforms judgement, where it went so far as to implicitly accept that a single attack against a merchant ship may constitute an armed attack against the flag state.26 Such a consideration sharply contrasts with the exclusion of frontier incidents from the scope of the notion of an armed attack. Also, inasmuch as armed actions may take the form of isolated armed strikes that, taken separately, may be of low gravity, the ICJ accepted the so-called “cumulative theory” (or “accumulation of events theory”).27 This theory is aimed at an overall assessment of isolated armed acts of low gravity, that taken cumulatively may amount to an armed attack. Thus dealing with low intensity armed acts is to some extent mitigated by such an approach as it allows for some flexibility in the assessment of armed actions overall. Yet, this approach is itself far from clear and remains as arbitrary as the gravity threshold applied in the assessment of single armed acts.28 Apart from the above arguments there is another seriously problematic consequence of the assumption that an armed attack must be of certain degree of gravity. The occurrence of an armed attack conditions the legality of any military response of the attacked state within the self-defence framework, both under Article 51 of the UN Charter and under customary law. Yet, acceptance of the qualification of some illegal armed acts as below the threshold of an armed attack deprives the attacked state of the right to militarily respond, as an armed attack is absent and thus any forcible countermeasures are nowadays definitely impermissible under international law. Albrecht Randelzhofer suggested that this was “undoubtedly intended by the Charter, since the unilateral use of force is meant to be excluded as far as possible.”29 He claimed that this was a consequence of the intended preference under the UN Charter for security over justice. Yet he considered this as “anything but satisfactory, for it means that there is very little effective protection against States violating the prohibition of the use of force, as long as they do not resort to an armed attack” and doubted “that the current law makes much sense, even from the security point of view.”30

26 For a detail analysis and critique of the categorization of particular armed acts by the ICJ in the Oil Platforms case, see Raab, supra note 18, pp. 726-732. 27 ICJ, Oil Platforms, para. 64; ICJ, Nicaragua, para. 146 in fine; Tom Ruys notes that already in the Nicaragua judgment (para. 231) the ICJ “observed that the lack of information in relation to alleged cross- border attacks against Honduras and Costa Rica made it difficult to decide whether they could ‘singly or collectively’ amount to an ‘armed attack’.” Ruys, supra note 11, p. 173. The cumulative theory was also applied – with the direct reference to the ICJ’s case law – by the IIFFMCG: IIFFMCG, Report, p. 245. 28 Green, supra note 11, p. 44. 29 A. Randelzhofer, Article 51, in: B. Simma (ed.), Charter of the United Nations: A Commentary, Oxford University Press, Oxford: 2002, pp. 790-792. 30 Ibidem. 44 Michał Kowalski

Indeed, introducing the gravity criterion into the definition of the notion of an armed attack leads to an unacceptable situation in which we face – as Tarcisio Gazzini put it – “an unrealistic loophole in the whole normative framework on the use of force, even assuming the effective functioning of the collective security mechanism.”31 It should be noted in the above context that in the Nicaragua judgement the ICJ – surprisingly – did not unambiguously exclude the possibility of a military response short of self-defence by the attacked state to those attacks not grave enough to be qualified as an armed attack. While stating firmly that “use of force of a lesser degree of gravity cannot (…) produce any entitlement to take collective countermeasures involving the use of force” the ICJ concluded further that such acts “could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts.”32 The interpretations of this statement vary considerably. According to the well-known opinion of John L. Hargrove, the ICJ “strongly suggested” that the countermeasures taken by a victim state “might include acts of force.”33 Other commentators take more cautious positions, yet they tend to accept the interpretation that the ICJ did not exclude forceful countermeasures.34 Abdulqawi Yusuf commented in this respect that “the Court did not specify the nature of such ‘countermeasures’, but it could perhaps be reasonably assumed that it was referring to military countermeasures.”35An opposite view however was firmly taken by Dame Rosalyn Higgins, who stated: “[i]n the Nicaragua–US case the International Court of Justice introduced a requirement of proportionality into non- forceful countermeasures which were held by the Court to be the appropriate response to low-level uses of force that did not amount to an armed attack.”36 One could have expected that this controversy would have been clarified by the ICJ in its Oil Platforms judgement, but it was not even touched upon in this context. This fact was criticised by Judge Bruno Simma in his dissenting opinion, in which he stated that the ICJ in the Nicaragua judgement could not mention pacific countermeasures only. Accordingly, Bruno Simma opted for the legal permissibility of forceful defensive measures short of self-defence taken in response to military acts short of armed attack.37 The above position seems hardly acceptable as it diminishes the very prohibition of the use of force under Article 2(4) of the UN Charter by legalizing most obscure

31 T. Gazzini, The Changing Rules on the Use of Force in International Law, Manchester University Press, Manchester: 2005, p. 138; see also Jochen A. Frowein’s view, who stated: “A State against which forcible intervention takes place may certainly react by the use of force in a similar way”, J.A. Frowein, Reactions by Not Directly Affected States to Breaches of Public International Law, 248 Recueil des Cours de l’Académie de droit international 372 (1995). 32 ICJ, Nicaragua, para. 249. 33 J.L. Hargrove, The Nicaragua Judgment and the Future of the Law of Force and Self-Defence, 81 American Journal of International Law 138 (1987). 34 See e.g. Gazzini, supra note 31, p. 138. 35 Yusuf, supra note 18, p. 466. 36 R. Higgins, Problems and Process: International Law and How We Use It, Clarendon Press: Oxford 1994, p. 231 (emphasis mine). 37 ICJ, Oil Platforms, Separate Opinion of Judge Simma, paras. 12-13. ORIGINAL SIN REAFFIRMED... 45 individual uses of force short of self-defence. Also, it contradicts the rules of state responsibility for internationally wrongful acts as established by the International Law Commission in its Articles.38 According to Article 50(1a) of the Articles, forceful countermeasures are unequivocally excluded. In this context one should also take note of the IDI’s position expressed in its resolution on self-defence of 2007. The IDI claims that in the case of an illegal use of force short of armed attack, the attacked state does not enjoy the right to self-defence, yet, it is entitled to countermeasures “in conformity with international law” – thus, as it should be assumed, all forceful countermeasures are excluded. Nonetheless, the IDI argues further that the state attacked “may also take strictly necessary police measures to repel an attack” (para. 5). The scope of the “police measures” seems rather unclear, but it should be firmly stated that regardless of the term used, all individual, defensive extraterritorial armed actions taken by a state should be qualified – if not taken within the framework of self-defence – as illegal forceful countermeasures.39 The same critical argumentation applies to the reasoning of the IIFFMCG which, while referring to the admissibility of the use of force to protect one’s own nationals abroad, opted – although it seems with some hesitation – for the legality of a limited in time and scope use of force within rescue missions. Such action, called a “Blitz-type action” would be legal under international law “if it does not fall under the scope of the prohibition on the use of force, because it remains below the threshold of gravity and/or because it is not ‘directed against the territorial integrity or political independence’ of a state, as formulated in Art. 2(4) of the UN Charter.”40 This position accepts – ground- lessly it is submitted here – that a state’s forceful act may, because of low gravity, fall outside of the scope of the prohibition on the use of force, and ergo may be legal. Both above lines of argumentation very well illustrate the attempts to prevent unrealistic legal loopholes as a result of the gravity criterion. These attempts remain highly risky as they result in an unintended (as it may be assumed), yet unavoidable depreciation of the prohibition on the use of force. The above critique of the gravity criterion as an element of the definition of the notion of an armed attack referred mainly to international norms regulating the use of force by states. Yet one may ask whether it is still reasonable to apply it to the qualification, generally accepted nowadays, of a terrorist act as an armed attack and towards other forcible acts by non-state actors. One may posit that abandonment of the gravity criterion would result in every terrorist act being qualified as an armed attack – a consequence that seems at first glance to be highly dubious. For this reason some authors who generally oppose the gravity criterion still opt for preserving it with respect to the qualification of a non-state actor’s act only.41 And Steven Ratner, in a more nuanced

38 Yearbook of the International Law Commission 2001, Vol. II, Part II, pp. 26-143. 39 But cf. Corten, supra note 23, pp. 52-66. 40 IIFFMCG, Report, p. 286. 41 See especially, E. Wilmshurst (ed.), The Chatham House Principles of International Law on the Use of Force by States in Self-Defence, 55 International and Comparative Law Quarterly 963 (2006), pp. 966 and 46 Michał Kowalski approach, proposes to abandon the gravity criterion with respect to a terrorist act that may be attributed to a particular state, and to sustain the criterion with respect to terrorist acts that may be not attributed to a state.42 It seems that the above propositions stem from a concern about a too broad scope of self-defence measures taken in response to terrorist acts or to other non-state actors’ forceful actions. The gravity criterion appears to be a means to limit the scope of self- defence in such situations to large scale actions only, i.e. ones that are approximated to inter-state armed conflicts. Yet this concern is equally valid for the scope of self-defence with respect to both inter-state relations and non-state actors. In addition, it does not seem to give proper appreciation to the other limits on self-defence, i.e. the principles of necessity and proportionality. These principles – if applied correctly – would exclude any military actions of a punitive character. What’s more, there are serious grounds to believe that concerns about broadening the scope of self-defence too excessively are more justified with regard to the acceptance of the admissibility of self-defence against a non-state actor (including a terrorist organization) in cases in which its forceful act may not be attributed to any state (the concept of a non-state actor as an autonomous source of an armed attack).43 And it may be claimed that the ideas of keeping the gravity criterion with respect to the acts of non-state actors are aimed exactly at minimizing the consequences thereof.

3. Abandoning the gravity criterion – remarks de lege ferenda

Taking into account all that has been written above, one may state that de lege lata the conceptual inconsistency within the very foundations of jus ad bellum is deplorable. Alas, the ICJ’s approach, as enunciated in the Nicaragua judgement and upheld in its subsequent case law, has very much contributed to this highly unsatisfactory state of legal affairs. So the question arises whether conceptual consistency withinjus ad bellum is possible to achieve at all. As I have already argued elsewhere,44 the answer seems to

971. The line of argumentation used by the authors of the Principles goes back to the position that the gravity criterion as pronounced in the Nicaragua judgment applied to armed acts by irregular armed bands (non-state actors) only; see supra note 18. 42 S. Ratner, Self-Defense Against Terrorists: The Meaning of Armed Attack, in: N. Schrijver, L. van den Herik (eds.), Counter-terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges, Cambridge University Press, Cambridge: 2013, pp. 334 et seq. 43 This concept is definitely gaining ground in the modern scholarship on jus ad bellum. See e.g. R. Kwiecień, in this volume of Polish Yearbook of International Law. Contra Corten, supra note 23, pp. 126-197; M. Kowalski, Armed Attack, Non-State Actors and a Quest for the Attribution Standard, 30 Polish Yearbook of International Law 118 (2010). 44 M. Kowalski, Ius ad bellum a systemowy charakter prawa międzynarodowego [Jus ad bellum and the systemic nature of international law], in: R. Kwiecień (ed.), Państwo a prawo międzynarodowe jako system prawa [The state and international law as a system of law], Wydawnictwo UMSC, Lublin: 2015, pp. 182-184. ORIGINAL SIN REAFFIRMED... 47 be positive and it is determined by the systemic approach to international law and to jus ad bellum – especially insofar as their completeness in its qualifying aspect is concerned. This regards the key questions whether every instance of the usage of armed force may be legally qualified as not indifferent,45 and whether binding international law – as Krzysztof Skubiszewski once put it – “makes it possible to determine the lawfulness of any resort to force and thus to distinguish between legal and illegal categories of the use of force”.46 Yet, such conceptual consistency would require abandoning the gravity criterion in the legal qualification of a particular armed act. This indeed seems extremely difficult, as it would necessitate overcoming and recasting the interpretation which is established and dominating in both international case law and in the doctrine. The interpretation submitted here is based on the following presuppositions. Firstly, the prohibition on the use of force – under both the UN Charter and the parallel binding customary law – is of a comprehensive character and makes every resort to armed force illegal, save for two still binding exceptions: the use of armed forced authorized by the UN Security Council; and the right to self-defence. Thus, every usage of armed force beyond the mentioned exceptions would amount to an illegal use of armed force, ergo as an act of aggression, if the latter is understood exactly as every illegal use of armed force by a State and distinguished from the crime of aggression. Simultaneously, an act of aggression would be equated with the notion of an armed attack (at least in this aspect it would be in line with the ICJ’s approach in the Nicaragua judgement). Accordingly, an act of aggression and the notion of an armed attack would be legally equal and would constitute violations of the prohibition on the use of force of the same kind. Note that such an approach is fully consistent with the principle of peace- ful settlement of international disputes, with the non-intervention principle, as well as with the secondary rules on international responsibility of States (the latter leaving aside the question of the intent of a State violating its legal obligation). Obviously, the gravity of a particular armed act maintains its legal significance, however it does so in different dimensions and in different contexts. Firstly, the assessment of an armed act’s gravity remains crucial for the UN Security Council in its discretionary competence to determine the existence of an act of aggression under Article 39 of the UN Charter, which triggers its powers under Chapter VII of the Charter. In this (discretionary) regard, the UN General Assembly Resolution 3314(XXIX) defining ag- gression47 retains its full relevance. Thus, not every act of aggression, understood as any illegal use of armed force, necessarily constitutes an act of aggression under Art. 39 of the UN Charter, and in this instance imprecise criterion of gravity assessment proves to be compatible with the discretionary powers of the UN Security Council. Secondly, not every act of aggression, once again understood as any illegal use of armed force, necessarily constitutes an act of aggression under Article 8bis of the Rome

45 Ibidem, p. 168. 46 Skubiszewski, supra note 14, p. 752. 47 Definition of Aggression, Resolution adopted by the General Assembly on 14 December 1974, 3314 (XXIX), UN GAOR 29th Sess., Supp. No. 31 (1974). 48 Michał Kowalski

Statute of the International Criminal Court (ICC) and accordingly does not necessarily activate the ICC’s jurisdiction vis-à-vis the international penal responsibility of an individual for the crime of aggression. Note that paragraph 1 of Article 8bis refers to “an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” These criteria are ambiguouspar excellence. As such they are left to the ICC’s assessment. Simultaneously, paragraph 2 of Art. 8bis, when defining an act of aggression, refers directly to Article 3 of the Resolution 3314 (XXIX), including the catalogue of acts of aggression. However, the catalogue under paragraph 2 of Art. 8b is of an enumerative character, whereas the catalogue under Ar- ticle 3 of the Resolution 3314 (XXIX) is not. It is crystal clear that the catalogue of acts of aggression under Article 3 of the Resolution 3314 (XXIX) is not exclusive and acts of aggression may nowadays take other forms as well. This difference clearly demonstrates that Article 8bis.2 of the ICC Statute defines an act of aggression for the purpose of determining the ICC’s jurisdiction only. Thirdly, the gravity of a particular illegal armed act can be decisive in assessing whether the attacked State is entitled to invoke the right to self-defence and to respond militarily. The gravity criterion should not, however, be taken into account in the context of the legal qualification of an armed act as an armed attack, as – in the approach submitted here – every illegal use of force would constitute armed attack. Instead, the gravity criterion would be crucial for the assessment of the necessity and proportionality of defensive military actions, ergo the admissibility of self-defence. Thus while a less grave form of use of armed force still constitutes an armed attack, due to its low intensity the admissibility of self-defence might be excluded totally or partially, its substantive scope being limited to that which is proportionate to the scale of the armed attack. Such an approach would not leave the State attacked without an option to respond militarily, if such a response is necessary and is done in a proportionate way. The state practice proves that States take such a right for granted, however they do not necessarily have to exercise it. Again, the assumption that a State attacked militarily is not entitled to respond militarily in self-defence due to the small scale of the attack is simply wholly unrealistic. The imprecise gravity criterion would, in the approach submitted here, constitute an element of the principles of necessity and proportionality. While the latter two are undeniably somewhat imprecise themselves and subject to a margin of appreciation, nevertheless their appropriate conceptualization within jus ad bellum generally, and within the self-defence framework specifically, as well as an essential, careful reference to the particular factual circumstances in each case, would help to avert arbitrariness in their application.48 Indeed, the modern judicial and doctrinal debates on self-defence should abandon counter-productive considerations on the definition of the notion of an armed attack and concentrate on the potential and application of the principles of necessity and proportionality instead.49

48 Cf. O. Corten, Necessity, in: M. Weller (ed.), The Oxford Handbook of the Use of Force in International Law, Oxford University Press, Oxford: 2015, p. 861 et seq. 49 Kowalski, supra note 4, pp. 120-128. For more on the conceptualization of the necessity and proportionality principles within jus ad bellum generally and within the self-defence framework specifically,see ORIGINAL SIN REAFFIRMED... 49

It is also important to note that the understanding submitted here of the prohibition on use of force – based on equating the notions of aggression and armed attack, i.e. meaning any illegal use of armed force – has an additional merit. Namely, it makes it possible to escape the serious inconsistencies in framing the prohibition on the use of force as a jus cogens norm.50 Accordingly, it is the prohibition of aggression (any illegal use of force) which gains a peremptory status. The prohibition of aggression, understood as any illegal use of force, remains unequivocal and provides for no exceptions. However, the scope of the prohibition of the use of force, i.e. the scope of the exceptions, would be formed by the jus ad bellum norms, which could undergo modifications and which would not have peremptory status themselves.51

Conclusion

Abdulawi Yusuf commented in 2012 that the ICJ’s dictum in the Nicaragua judgment despite scholarly criticism, will continue to serve as a basic standard for evaluating what constitutes an ‘armed attack’, and any further elaboration and fine-tuning of the concept of ‘armed attack’ will necessarily have to be undertaken on the basis of the gravity standard specified by the Court.52 This statement is all the more significant as it was made by the present vice-president of the ICJ. Still, the criticism directed at the gravity criterion is severe and should be taken into consideration. The present State practice should be analysed thoroughly as it seems to show that States consider themselves entitled to respond militarily any time they are attacked if the collective security system remains ineffective. The limitations on this right should be considered within the self-defence framework, with the crucial role of the necessity and proportionality principles accompanying the other conditions of the admissibility of self-defence (a State being actually attacked; the armed character of the attack; attribution). In this respect, the gravity criterion as an element of the notion e.g. D. Akande, T. Lieflander,Clarifying Necessity, Imminence and Proportionality in the Law of Self-Defense, 107 American Journal of International Law 563 (2013). See also Ruys, supra note 11, pp. 91-125; D. Kretzmer, The Inherent Right of Self-Defence and Proportionality in Jus Ad Bellum, 24 European Journal of International Law 235 (2013); G. Nolte, Multipurpose Self-Defence, Proportionality Disoriented: A Response to David Kretzmer, 24 European Journal of International Law 283 (2013); Corten, supra note 23, pp. 470- 494; Ch.J. Tams, J. Devaney, Applying Necessity and Proportionality to Anti-Terrorist Self-Defence, 45 Israel Law Review 91 (2012); T. Christodoulidou, K. Chainoglu, The Principle of Proportionality from a Jus Ad Bellum Perspective, in: Weller (ed.), supra note 48, p. 1187. 50 For more on the inconsistencies see J.A. Green, Questioning the Peremptory Status of the Prohibition of the Use of Force, 32 Michigan Journal of International Law 215 (2011); A. de Hoogh, Jus Cogens and the Use of Armed Force in Weller (ed.), supra note 48, p. 1161 et seq. 51 Kowalski, supra note 7. 52 Yusuf, supra note 18, p. 470. 50 Michał Kowalski of an “armed attack” is superfluous. What’s more, it is counter-productive as it reasserts the UN Charter’s approach based on differentiating various forms of the use of force, which makes jus ad bellum incoherent and diminishes its significance. Inasmuch as this article’s reference point is the Nicaragua judgement, it has focused only on the gravity criterion in the context of the notion of an armed attack. Yet, it should be noted that this criterion may be used – and indeed is used – towards other jus ad bellum notions with equally devastating effects. It is for example exactly this approach which is taken to argue that the scope of the prohibition on the use of force is limited, as it does not cover instances of use of military force which does not reach a certain minimal level, i.e. are not grave enough. Such a line of argumentation should be dismissed as it remains contradictory to binding international law,53 and it clearly contributes to depreciation of the prohibition on the use of force. It is both symptomatic and paradoxical that the gravity criterion appears to be two-edged. When invoked in the context of the definition of the notion of an ‘armed attack’, it is aimed at limiting the scope of the legal use of force by excluding the right to self-defence in response to less grave forms of the use of force; whereas when invoked in the context of a limitation on the prohibition of the use of force, it is aimed at expanding the scope of the legal use of force to include minor armed actions. Thus – as it has been argued above – thejus ad bellum regulation as provided in the UN Charter should be perceived as marred by the original sin of having introduced undefined notions of use of force, aggression and armed attack, whose mutual relations have thus been obscured. Hence in fact we witness a continuous legal juggling of these notions. This juggle resembles – at least to some extent – the lines of argumentation present in the pre-UN Charter era aimed at proving that particular armed actions by States fell short of (undefined) war under the Kellogg-Briand Pact of 1928.54 After all, abandoning the notion of war in the UN Charter’s text was not coincidental - it was aimed exactly at avoiding this kind of legal obscurity. Alas, unsuccessfully. Yet it should be noted that in the Nicaragua judgement the ICJ itself pointed out that the role of customary law may supplement and modify the existing jus ad bellum norms under the UN Charter. Consequently, modifications to the interpretation of the above-mentioned notions and their mutual relationships, aimed at obtaining conceptual consistency of jus ad bellum, are possible if demonstrated through a careful and detailed elaboration of state practice and opinio juris. Such changes would require abandoning the well-established judicial and doctrinal approaches to jus ad bellum and, as such, may seem unrealistic. Yet, they are possible. Hopefully, the original sin in international law may yet be removed.

53 For a detailed analysis, with extensive references to state practice and doctrinal positions, see T. Ruys, The Meaning of “Force” and the Boundaries of the Jus ad Bellum: Are “Minimal” Uses of Force Excluded from UN Charter Article 2(4)?, 108 American Journal of International Law 159 (2014). 54 General Treaty for Renunciation of War as an Instrument of National Policy of 27 August 1928, 94 LNTS 57; S.C. Neff, War and the Law of Nations. A General History, Cambridge University Press, Cambridge: 2005, pp. 293-296. XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016d 2016 PL ISSN 0554-498X

François Finck*

The State between fact and law: the role of recognition and the conditions under which it is granted in the creation of new States

Abstract: This article explores the role of recognition in State creation. Basing on an analysis of relations between effectiveness and legality in the process of State creation, it claims that recognition is constitutive of statehood as a subject of international law. The research revolves around the following themes: the role of effectiveness criteria and the conditions of recognition set by international law, the existence of “statehood without effectiveness” in cases of limited effectiveness but general recognition, the study of acquisition of statehood as a process and the notion of collective recognition based on the cases of Kosovo and Palestine. The argumentation is also supported by the analysis of de facto entities and aspiring States in international practice. It draws on the distinction between legal non-recognition and political non-recognition as able to shed some light on the complexity of international practice in this area. The article concludes that recognition is a pre-requisite of statehood, an essential criterion that may over- come weak effectiveness in certain legal contexts, though not a lack of independence. Con- versely, effectiveness of government authority over population and territory does not lead to statehood in the meaning of international law in the absence of international recognition.

Keywords: constitutive effect, effectiveness, non-recognized entities, recognition, secession

Introduction

The creation of States has long been a central question in international law, although the important role of politics and effectiveness (i.e. “facts on the ground”) has also given rise to doubts about the role of the international legal regime in the development of “law of statehood”.

* Ph.D. in International Law (University of Strasbourg); Senior Academic Assistant, College of Europe, Natolin Campus, Warsaw (Poland). 1 J. D’Aspremont, The International Law of Statehood: Craftsmanship for the Elucidation and Regulation of Births and Deaths in the International Society, 29 Connecticut Journal of International Law 201 (2014). 52 François Finck

The appearance of new States makes the question still very much debated, and in terms of a definition it remains very difficult to understand and conceive the multi- faceted ways in which the new primary subjects of international law appear. The aim of this article is to make a contribution to this important part of international legal scholarship by reassessing the function and value of recognition, the conditions under which it is granted, and the role of recognition in international law of State creation. While there is a vast literature concerning this traditional topic of international law, both “classical” and more recent, it remains subject to debate. As several authors have observed, theoretical questions have often obscured the matter and they “do not help to explain recognition or to clarify the position of entities which are not recognized.” The main thesis of this article is that the appearance of a new State in international law terms is dependent on its recognition by other States. Recognition, together with effectiveness, is a constitutive feature of statehood. Recognition does not have to be made through a formal act, it can also be performed de facto, but it needs to demonstrate an intent to treat the entity involved as a State. The aim of this article is thus to explore how statehood is understood in practice. The practice of existing States is crucially important in this regard, but so too is the practice of the would-be States themselves. In parallel with the consolidation of their independence and authority on the ground, they must develop a strategy of international recognition (as have, for example, Kosovo and Palestine). Consolidated de facto entities desperately seek international recognition, which they see as necessary to access “full” statehood (for example Somaliland). Empirical research on how accession to statehood is treated by existing States sheds light on a less doctrinal but more practical approach to the process of State creation. It brings a new contribution to the old debate on the value of recognition. Although most international law scholarship defends the State-as-a-fact and declarative view of recognition, empirical research highlights the central role of recognition in the process of State creation and evidences its constitutive character. The article will thus be a contribution to this crucial issue in legal scholarship. In this article State creation is understood broadly and various hypotheses are distinguished with respect to the importance of effectiveness and international recognition. Its focus is on the legal effects of recognition, which are dependent on the legal and situ- ational context of each State creation – whether through unilateral secession, realisation of self-determination, or as a result of succession in cases of parent state dissolution.

I. Brownlie, Recognition in Theory and Practice, 53 British Year Book of International Law 197 (1982); J. Dugard, The Secession of States and Their Recognition in the Wake of Kosovo, Collected Courses of the Academy of International Law, 2011, p. 9; J. Crawford, The Creation of States in International Law, Oxford University Press, Oxford: 2007, p. 17. J. A. Frowein, Recognition, in: Max Planck Encyclopedia of Public International Law, OPIL Oxford University Press, Oxford: 2010, para. 10. Cf. below section 4. Cf. below section 2. The State between Fact and Law... 53

In cases of secession, the practice shows that recognition by the parent State is of utmost importance. In the absence of the consent of the nominal sovereign, there is little probability that other States will recognize the secessionist entity as a State, however effective it may be. The related question of the status of “non-recognized entities: or de facto authorities in international law also underlines the crucial function of recognition in the contemporary world. The constitutive power of recognition is highlighted by the fact that non-recognized entities are not generally considered as States, regardless of the degree of their effectiveness in controlling and governing a territory. Apart from some compulsory “negative rules” in international law with respect to state creation, a wide measure of discretion is left to the international community of States, which for obvious reasons are wary of recognizing secessionist entities as States. International law, being a law created by States, is hostile to secession, even though no rule of international law prohibits it. Moreover, the practice of accession to statehood contains a grey zone between an entity attempting secession – which would be an internal matter of the State faced with the attempt at secession – and full and uncontested statehood. Accession to statehood is a process. In the course of this process, the status of the would-be State is shrouded in ambiguity: Kosovo and Palestine are cases of partial, incomplete recognition; hence their undefined status in international law. Thus it can be said that acknowledgement of the constitutive effect of recognition does not solve all the issues in this area. It does not give a clear answer to the traditional critique of the constitutive theory: how many and whose recognition? In cases where the international community is divided (Kosovo), there is no definite answer to the question of the territory’s status. A reassessment of the role of international recognition makes it possible to analyse the creation of a new State not as a question of existence/non-existence, or State/non- State, but as a process – a progressive and dynamic operation involving elements of both fact and law. The performance of certain legal acts and attempts to demonstrate effectiveness may be linked to a “recognition strategy” by States in statu nascendi or de facto authorities aiming at full and recognized statehood. The following section 1 exposes the respective roles of law and facts in the State creation process, and the relationship between effectiveness and legality. The factual criteria for statehood, effectiveness, and the role of recognition are analysed before turning to the role of the legal conditions attached to international recognition and

See below section 3. A remark on the vocabulary used in this article: I do not use the terms “non-recognized State”, as it contains a contradiction – if there is no recognition, the entity is not a State in the sense of international law. Nor do I use the expression “de facto State” – statehood being a legal status, a State in the meaning of international law is necessarily de jure. If it is de facto, i.e. without recognized international personality, it cannot be considered as a State “properly so-called”. ICJ, Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, 22 July 2010, ICJ Rep 2010, p. 403. Cf. below section 4. 54 François Finck the constitutive function of recognition. Sections 2 and 3 focus on the relationship between effectiveness and recognition. Section 2 examines situations of effectiveness but lack of recognition (whether due to legal barriers or not). In this section the issue of non-recognized entities in practice will also be analysed. The section ends with the question whether withholding recognition, except for cases of breach of conditions of international law, can be justified, especially in relation to the territorial integrity of a parent State. Section 3 deals with the opposite end of the spectrum, i.e. cases involving widespread international recognition of “states” with limited effectiveness. This point leads us to the analysis of State creation as a process, in which recognition plays a prominent role (section 4), and includes analysis of both collective recognition and the recognition strategies used by entities seeking statehood. Section 5 focuses on the role of recognition in State creation. The article closes with concluding remarks summing up the findings.

1. Law and fact in State creation: effectiveness and (il)legality

This section explores the relation between the factual criteria of statehood and the legal conditions attached to recognition by States. The role of the effectiveness criteria is first analysed (1.1), then the legal conditions attached to recognition (1.2), and finally the mutual relations of both elements (1.3).

1.1 “State” as a fact: the criteria of effectiveness The “criteria of fact” are often seen as the main criteria of statehood, even as the only criteria according to the tenets of a strict declaratory approach.10 The Montevideo Convention is generally considered to lay out the criteria of statehood: “The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.”11 Before turning to an analysis of these criteria, it is worth noting that it is doubtful that the Montevideo Convention can be considered as the ultimate list of state criteria. They should rather be considered as indicative elements of the definition of a State. Moreover, this list is not complete and thus in and of itself cannot explain international practice with respect to state creation. A missing, albeit fundamental criterion of fact and effectiveness is independence. This condition may perhaps be considered subsumed in the conditions of “government” – supposedly independent – and “the capacity to enter into relations with other States.”

10 See e.g. S. Talmon, The Constitutive versus the Declaratory Theory of Recognition: Tertium non Datur?, 75 British Yearbook of International Law101 (2004). 11 Article 1 of the Convention on the Rights and Duties of States, Montevideo, Uruguay, 26 December 1933. The State between Fact and Law... 55

The criteria of population and territory seem self-evident as the role and the raison d’être of a State is to organize a political community of people inhabiting a given territory. There is no upper or lower limit concerning either the population number or the size of the territory.12 However States “must possess some territory”, even “an extremely small area, provided they are independent.”13 External State borders need not to be precisely delimited,14 as was already confirmed in the case of Poland’s borders in the years immediately following its independence in 1918.15 Moreover, many international borders are not precisely delimited and/or are the object of disputes, without casting any doubt on the statehood of the disputing State-parties. A fundamental element of the definition of statehood is the effective and exclusive control of some territory. The exclusivity of control means factual independence. In turn, statehood equals de jure independence and sovereignty. The condition of effective government is closely linked to the criteria of territory: the government should be able to exert effective control over the given territory. There is some disagreement over the extent of effective control over a territory; in the classical doctrine this condition was quite strictly enforced. The above criterion has been defined as “the most important single criterion of statehood, since all the others depend upon it.”16 Indeed, an effective and independent government is crucial to fulfil the criteria of factual independence and the ability to enter into relations with other States. At the same time however, this criterion is relative. In cases of self-determination in a colonial situation, a lower level of effective control has been required (and in some cases hardly any control at all).17 In these cases the accession to independence was seen as essential to fulfil the right to self-determination of the colonized people. Independence from the colonial power, defined in practice as the withdrawal of the administrating power and its relinquishment of any claim to sovereignty, was deemed sufficient to grant recognition to a new State. In cases of non-consensual secession or the dissolution of a federal State, the scope of control is more controversial. In principle a higher threshold is needed, although in practice a weaker control has also been seen as sufficient.18 However, this may be no more than a question of appreciation: in reality the requirement of effective control by a government over its territory is difficult to assess and open to contestation. It has also

12 Crawford, supra note 2, p. 46. 13 Ibidem, pp. 46-47. 14 Ibidem, pp. 48-52. 15 “In order to say that a State exists… it is enough that this territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited, and that the State actually exercises independent public authority over that territory” – German-Polish Mixed Arbitral Tribunal, Deutsche Continental Gas-Gesellschaft v. Polish State, 1 August, 1929. 16 Crawford, supra note 2, p. 56. 17 See below, section 3. 18 See C. Warbrick, Recognition of States Part 2, 42 International and Comparative Law Quarterly 433 (1993) on British practice concerning the Republics of former Yugoslavia. 56 François Finck been argued that the application of this criterion is flexible, and that there is a presumption of existence of an effective government.19 A second fundamental criterion is independence,20 and factual independence is generally considered as a fundamental requirement of statehood.21 De jure independence, a synonym of sovereignty, is part of the definition of a State, sovereignty meaning that there is no formal authority above the State other than international law and a direct submission to international law. One should distinguish here between the definition of a State (independence de jure) and the criterion for statehood of “attainment of independence de facto”, which is linked to the process of State creation and the recognition of a new State. Independence de jure, and thus sovereignty, is the exclusive right to carry out the governmental function in a given territory and is part of the definition of a State and one of its attributes.22 These attributes are protected by international law. They belong to every existing State. However, they are not strictly speaking “criteria” for statehood, rather they are bestowed upon the State once it has come into existence. They thus come later: the State possesses de jure independence and sovereignty only when it has already become a State, not when it is only in the process of establishing its statehood. During the process of establishing statehood, de facto independence is a fundamental criterion, although not in and of itself sufficient. The fourth criterion of the Montevideo Convention – the capacity to enter into relations with other States – can be understood in two ways. In a first, functional sense, it is the ability to have direct relations with other States and to develop an independent foreign policy. In this sense it is a capacity inherent in statehood. Insofar as this capacity depends on the ability to effectively control a territory to the exclusion of other States, and to answer for its international relations, it can be defined as “a conflation of the requirements of government and independence.”23 However, the capacity to enter into relations with other States can also be understood as the legal capacity to enter into relations subject to international law with other States. By definition, this legal capacity can only be recognized by other States.E xisting States, via recognition, agree to put their mutual relations on the plane of international law. They

19 Th. Christakis,The State as a ‘Primary Fact’: Some Thoughts on the Principle of Effectiveness, in: Marcelo G. Kohen (ed.), Secession – International Law Perspectives, Cambridge University Press, Cambridge: 2006, p. 144. 20 Contra Talmon, supra n 11, p. 116: “Factual independence of public authority as an additional criterion for statehood does not appear to be borne out by State practice’. According to this view, a State is constituted as a State in international law as soon as it fulfils the three criteria of territory, population and public authority, not necessarily independence in practice. 21 Crawford, supra note 2, p. 62; Christakis, supra note 20, p. 145. 22 Sovereignty was famously defined by Max Huber in the Island of Palmas case: “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” PCA, Island of Palmas (or Miangas), United States of America v. Netherlands (arbitrator Max Huber), 4 April 1928. 23 Crawford, supra note 2, p. 62. The State between Fact and Law... 57 are the only actors of international relations able to conduct an assessment of the new entity’s capacity to enter into relations with them under international law and to decide to put their mutual relations on this level and treat the other entity as a State, and not as a de facto authority. This capacity, earned via recognition, is a central feature of a State. As a concept of international law, the capacity to enter into relations with other States depends on recognition. However “capacity”, in the ordinary meaning of “ability”, is a requirement which is equivalent to the criterion of government and can be fulfilled byde facto authorities, which are not treated as States. In practice de facto entities often possess a “ministry of foreign affairs” and have some sort of relations with neighbouring States, even if only to regulate some matters of common interest (for example in Somaliland).24 And in the secessionist Moldovan region of Transnistria there is a government with a ministry of foreign affairs – the secessionist authorities have relations with Moldova and with Russia, however they have only “diplomatic relations” with other non-recognized entities of the post-Soviet area, e.g. Abkhazia and South Ossetia. This criterion thus means that it is alegal capacity, the capacity to enter into relations with other States on the level of international law. It is dependent on the willingness of the existing States to put their relations on this level, in other words to treat this entity as a State, i.e. to recognize it.25 However, as the next sub-section shows, recognition is dependent on the compliance with and respect for other legal conditions. 1.2 Legal conditions and non-recognition The criteria of effectiveness have been supplemented by legal conditions governing recognition, and thus the creation of a new State. These conditions of international law have been defined as “rules which, if violated, form a bar to the acquisition of statehood by an otherwise fully effective entity.”26 These rules can be defined as “negative legal conditions’, i.e. their breach triggers an obligation on the part of States to not recognize entities created in violation of international law norms, such as the prohibition of the use of force in international relations. State-like entities have been created following violations of the right to self-determination and the prohibition of the use of force in international relations (Article 2 para. 4 of the Charter of the United Nations and customary law). The latter case is often linked in practice with the lack of factual independence from the sponsor State, whose illicit intervention has allowed the creation of a de facto authority. A recognition promulgated in spite of a violation of peremptory norms of international law would itself be a violation of international law.27

24 B. R. Farley, Calling a State a State: Somaliland and International Recognition, 24 Emory International Law Review 777 (2010), p. 808. 25 Dugard, supra note 2, p. 51, writes that it is “an obvious truth that a State cannot comply with the fourth requirement of statehood under the Montevideo Convention without recognition by some States, as it will not be able to demonstrate a capacity to enter into relations with other States.” 26 J. Dugard, D. Raic, The Role of Recognition in the Law and Practice of Secession, in: Marcelo & Kohen (eds.), supra note 19, pp. 94-95. 27 Article 40 of the ILC Articles on State responsibility. 58 François Finck

Southern Rhodesia and the South African Bantustans are prime examples of entities created in breach of the right to self-determination. The Security Council called upon all States not to recognize Southern Rhodesia after the unilateral proclamation of independence by the white minority regime,28 while the General Assembly condemned it as being in violation of the right of self-determination of the majority of inhabitants of the country.29 In the words of John Dugard, “Rhodesia did not become a State because it was created in violation of the principle of self-determination, and because it denied fundamental human rights to the majority of its people”,30 despite its effective control of territory. These were the reasons of the refusal of all States to recognize Southern Rhodesia in accordance with Security Council resolutions, thus withholding State status from this entity. In the case of the South African Bantustans, non-recognition was based on the prohibition of racial discrimination, as well as on the fictitious creation of these States, established not based on the free will of their peoples but as the result of the policy of apartheid carried out by the South African government.31 It was not only a lack of independence, but vitiation ab initio. The formulation of legal conditions governing recognition is an additional argument in favour of acknowledging the constitutive effect of recognition, as the legality of a State’s creation needs to be assessed. In the absence of a central authority, this has to be decided by the existing States.32 As a result of the existence of legal conditions governing the recognition of statehood the criteria of effectiveness are subject to law – State creation is no longer only a factual question, but also a legal question.33 In this respect, Brownlie declared that questions of fact are foremost, but “the legal criteria have to be applied, and this may call for some rather nice assessments.”34 Part of the disagreement over the value of recognition stems from a divergence about the meaning of “statehood”. Of course, non-recognition cannot change a reality on the ground. A non-recognized, de facto authority can still perform some State functions, can call itself a State, and can be, as a matter of fact, a State in the sense of political science. The reality of thestatus quo, the situation on the ground, is of course acknowledged; however, the facts are adjudged illegal and as a consequence “it is the status, and not the ‘reality’ which is denied.”35 Thus, if the legality of the process of creation of that authority is negatively assessed by the international community, then the legal status of a State, in the meaning of international law, is denied to the new entity. It has to be stressed that respect for peremp-

28 Resolutions 216 (1965), 277 (1970). 29 Among others, resolution 2262 (XXII). 30 Dugard, supra note 2, p. 128. 31 Ibidem, pp. 129-130. 32 Frowein, supra note 3, p. 2. 33 Christakis, supra note 20, p. 165. 34 Brownlie, supra note 2, para. 10. 35 Ibidem, para. 7. The State between Fact and Law... 59 tory norms of international law is not in itself a criterion or a condition of statehood, but are conditions of its recognition by third States. Recognition, as a pre-requisite for statehood, is itself conditioned on respect for some fundamental principles of law during the process of creation of the entity claiming state status. The legality of the creation of a new would-be State thus necessarily has to be assessed. In the context of the current stage of development of the international community, this assessment can only be made by the already existing States. The fulfilment of the conditions for recognition opens the way to international recognition by existing States, even though it is by no means automatic: a process of State creation not in breach of peremptory norms does not mean that international recognition will automatically take place. As we shall see in more detail below, States retain a certain margin of appreciation. Conditions of recognition are not positive conditions, whose fulfilment leads automatically to international recognition and statehood; but negative conditions, the non-fulfilment of which creates an obligation on the part of other States to deny recognition. Moreover, these rules cannot be called “conditions of statehood” strictly speaking, because in practice it is often their breach by another State which triggers an obligation on the part of the international community not to recognize the entity thus created. For example, in the case of a prohibition of the use of force in international relations, the use of force by a “sponsor State” may lead to the creation of a de facto authority on the territory of another State. It is the violation of a peremptory rule of international law by the sponsor State that gives rise to the obligation of non-recognition of the de facto authority. The development of legal conditions attached to international recognition has led to a reassessment of the respective values of fact and law in State creation.

1.3 Law and facts in State creation Both facts and the law play a role in the creation of a new State. With respect to the former, some effective existence of the entity claiming to be a State is necessary; without it recognition would be a political declaration without any legal effect. But the factual criteria need to be complemented by recognition to lead to the creation of a new State. In this regard, it is misleading to speak of the “birth” of a new State, or to define a State as “natural-born”.36 A State is not a natural person, but a legal entity. Statehood is a legal status to which rights and duties are attached. A State does not appear in the world like a natural person does, but is a community of natural persons which acquire a specific status under international law. States are not secondary subjects of international law, such as international organizations; they are not created by other States. However, the legal status of a “State” is granted as a result of international recognition. Statehood is the result of a complex

36 Talmon, supra note 11, pp. 2-6. 60 François Finck relationship between facts on the ground, i.e. the actual existence of an independent and effective authority, and the acquisition of international legal personality. The conceptual difficulty which arises is due to the fact that States are the primary subjects of international law; they exist by themselves independently, without the contribution of any other State. This building of the State in an autonomous manner is the very definition of sovereignty in its internal sense. However, in the complex process of State creation, the existing States play a role, often via international organizations (e.g. admission to the UN as a collective recognition; the importance of membership in international organizations, or being a party to multilateral treaties as part of a recognition strategy). Hence, while States are not created by other States, their status and their international personality depends on recognition by the existing members of the international community. It also happens that States are actually created, or at least maintained or kept together, by the international community, such as Bosnia and Herzegovina after the Dayton agreements. which has been continuously recognized as a State. Comparisons of State creation with the birth of a human being are misleading and do not assist in understanding the process of State creation or the criteria of statehood. Rather than being a natural person, a State is the archetype of a legal entity. Being a State is above all a legal status. Hence, the “facts on the ground” do not create a State within the meaning of international law. The cases of non-recognised entities demonstrate the constitutive value of recognition in the acquisition of the status of a state.

2. Effectiveness without statehood: the case of non-recognised entities

As stated above, the cases of non-recognised entities prove the essential value of recognition as a pre-requisite of statehood. Effectiveness without recognition can originate from a breach of peremptory norms of international law giving rise to an obligation of non-recognition (2.1). Recognition may also be withheld for reasons other than a legal obligation to withhold. The role of territorial integrity and its relation to the non- recognition of secessionist entities is thus analysed (2.4). Whatever their origin, non- recognized entities have an undefined place in the international legal system, and their qualification depends on the legal context (2.2). The innumerable difficulties they face underline the crucial importance of recognition in the contemporary world (2.3).

1.1. Legal conditions: non-recognition and de facto entities As was described above, the proclamation of independence of Southern Rhodesia by a racist regime, in violation of the people’s right to self-determination, led to an obligation on the part of all States to not recognize this entity as a sovereign State. Southern Rhodesia was not treated as a State by UN organs; the UN’s position was that the process of creation of the Southern Rhodesian State was illegal and invalid, and thus it was not a State, nor was the situation merely one of non-recognition of an objectively existing The State between Fact and Law... 61

State.37 As a result of this collective non-recognition, Southern Rhodesia did not acquire State status despite its effectiveness. Following the creation of the “Turkish Republic of Northern Cyprus” (TRNC) in the territory occupied by Turkey after the 1975 invasion of Cyprus, all States were called upon, in UNSC resolutions 541(1983) and 550(1984), to not recognize the TRNC and not to aid the “secessionist entity”. The Security Council also declared “illegal and invalid” “all secessionist actions”, including the exchange of ambassadors between Turkey and the TRNC. This entity is not treated as a “non-recognized State” by the international community, but as a secessionist entity that cannot attain statehood because it was established as the result of a violation of the prohibition of the use of force in international relations. Indeed, the effect of non-recognition is the impossibility for the entity concerned to acquire statehood. In the words of John Dugard, “the United Nations may order the nonrecognition of an entity that aspires to statehood and thereby effectively deny it international legal personality.”38 As an application of the general principle ex iniura ius non oritur, the legal status of a State cannot be granted to an illegally created entity. At the same time, facts do have some consequences, and the above-mentioned principle must be balanced against the principle ex factis ius oritur in some respects. A de facto authority must be taken into consideration, which is an illustration of the pragmatic, realistic approach of international law. Hence the creation of an illegal entity may have some valid legal effects, even though the illegality of its creation gives rise to a duty not to recognize the entity thus created as a State within the meaning of international law. But state-like institutions and authorities may exist in fact. Some acts may be recognized in the interest of their inhabitants, such as the registry of births, marriages and deaths or private property rights, as the International Court of Justice ruled in the case of acts of South African authorities after the illegal annexation of Namibia by South Africa.39 International law has to acknowledge factual situations, i.e. the actual state of affairs. In accordance with international law’s pragmatic approach, aimed at easing the situation of people suffering from violations of international law, an illegal activity may be regulated by international law. This is also the case in the international humanitarian law of armed conflicts, which regulate armed conflicts independently of considerations of jus ad bellum. Similarly, international law regulates situations of belligerent occupation, even though the forceful invasion and occupation of another State’s territory is prohibited. Against this background, it should not be surprising that some consequences of the illegal establishment of a de facto entity may be regulated by law. The regulation by international law of the consequences of the illegal establishment of a de facto entity does not, however, confer upon it any legitimacy.

37 Christakis, supra note 20, p. 167. 38 Dugard, supra note 2, p. 69. 39 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep 1971, p. 16, para. 125. 62 François Finck

Thus the non-recognition of entities as a state begs the question of the entities’ place in the international legal system. Of course by definition they cannot possess a legal status recognised by the international legal order. Nevertheless, as they possess some degree of effectiveness, their behaviour may have legal consequences that have to be taken into consideration.

1.2. Non-recognized entities in international law As indicated, denying statehood to de facto authorities begs the question of their place in the international legal system. Not surprisingly this issue is very complex. The status of non-recognized entities is not clear. “Secessionist entities” of course remain legally a part of the “parent State”. In cases of their dependence upon the “sponsor-State” which established them, they may be considered as de facto organs of the sponsor State in some specific legal contexts. The close links between dea facto entity and a sponsor State have been analysed in depth in the case-law of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the ICJ, and the European Court of Human Rights (ECtHR), as well as the international fact-finding mission set up after the 2008R ussian-Georgian war. The ICTY Appeal Chamber decided40 that, within the context of “individuals making up an organized and hierarchically structured group”, characterized by “a structure, a chain of command and a set of rules as well as the outward symbols of authority”,41 the attribution of internationally wrongful acts to a State is possible if “overall control” over the group by that State can be proven. This attribution “to some extent equates the group with State organs proper.”42 It concluded that the Former Republic of Yugoslavia (FRY) exercised overall control over the Bosnian Serb armed forces to the extent that the latter were merely a de facto organ of the former.43 This case-law is of interest for our examination, as it establishes that an organized group (in this case exercising de facto territorial control) may be considered as a de facto organ of the State exercising control over it. Admittedly, the ICTY was chiefly interested in defining relations between the armed forces of the Bosnian Serbs and the army of the FRY within the context of international humanitarian law. Nonetheless, it also observed that “the FRY wielded general control over the Republika Srpska in the political and military spheres”44 and that “overall political and military authority over the Republika Srpska was held by the FRY.”45 This case-law was confirmed later46 and applied to the relations between Bosnian Croat de facto authorities and Croatia.47

40 ICTY, Appeals Chamber, Prosecutor v. Dusko Tadic, 15 July 1999, IT-94-1-A. 41 Ibidem, para. 120. 42 Ibidem, para. 121. 43 Ibidem, para 156. 44 Ibidem, para. 157. 45 Ibidem, para. 160. 46 ICTY, Appeals Chamber, Zejnil Delalic and others (“Celebici camp” case), 20 February 2001 IT-96-21. 47 ICTY, Chamber of 1st instance I, Prosecutor v. Tihomir Blaskic, 3 March 2000, IT-95-14. The State between Fact and Law... 63

TheRepublika Srpska (or Bosnian Serb Republic), a de facto entity whose attempted secession from Bosnia and Herzegovina was recognized by no State (and indeed condemned by the UN Security Council48), could be seen as a de facto organ of the Federal Republic of Yugoslavia. Its armed forces were adjudged to be so tightly coordinated with and dependent upon the FRY’s army that they had no real autonomy. In the words of one author, “the acts of the Bosnian Serb army, the VRS, were not those of private persons or of a private group; they were the acts of an entity exercising governmental authority over large parts of Bosnian territory in concert with the Yugoslav army (the VJ) and on behalf of the FRY.”49 In the Genocide50 case, the ICJ did not reach the same conclusion concerning the applicable criteria, as it applied the test of “complete dependence”.51 However, the Court ruled that should this test be fulfilled, the group or entity may be equated with State organs.52 The conditions laid down by the ICJ are very strict, but not impossible to fulfil. As it was concerned with the issue of attribution of responsibility for the Srebrenica massacre, it only considered the situation in July 1995, a time in which the links between FRY and the Bosnian Serb leadership were still powerful, but less strong than in previous years. In a different context, the relations between ade facto entity and a sponsor State had to be assessed by the ECtHR in order to determine the jurisdiction of state parties to the Convention. In the case Loizidou v. Turkey,53 the Court was called upon to review the legality of the seizure of the applicant’s property located in the Northern part of Cyprus, under the administration of the TRNC. The Court declared that theT urkish army “exercises effective overall control over” the Northern part of the island. Further- more, in Cyprus v. Turkey54 the TRNC’s relationship to Turkey was defined as one of a de facto local administration of the sponsor State: “Having effective overall control over northern Cyprus, [Turkey’s] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support.”55 Thus theTR NC has been defined, in accordance with the provisions of theE CHR, as a “local administration” of Turkey, and Turkey thus bears full responsibility for its

48 Resolution 787 of 16 November 1992. 49 A.J.J. De Hoogh, Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, the Tadic Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia, 72 British Yearbook of International Law 255 (2001), p. 275. 50 ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v Serbia and Montenegro, Judgment of 27 February 2007, ICJ Rep 2007, p. 43. 51 Ibidem, para. 392. 52 Ibidem. 53 ECtHR, Loizidou v. Turkey, Judgment of 18 December 1996, Application no. 15318/89, para. 56. 54 ECtHR, Cyprus v. Turkey, Judgment of 10 May 2001, Application no. 25781/94. 55 Ibidem, para. 77. 64 François Finck acts. This solution is closely linked to the specificity of the European Convention on Human Rights as “an instrument of European public order” and the need to avoid any vacuum in the European system of human rights protection.56 Nonetheless this case law makes a useful contribution to the attempt to determine the legal consequences of the existence of non-recognized entities and their qualification in public international law. TheE CtHR case law was further developed in the case of Transnistria,57 a region of Moldova which attempted to secede in the early 1990s under the name of “Moldovan Republic of Transnistria” (MRT), with the substantial help of Russian troops. It has continued to survive thanks to the economic assistance of the Russian Federation. The ECtHR’s earlier stance was confirmed as a general principle, that “[w]here a Contract- ing State exercises overall control over an area outside its national territory, its responsibility is not confined to the acts of its soldiers or officials in that area but also extends to acts of the local administration which survives there by virtue of its military and other support.”58 The Court had no difficulty in reaching the conclusion that theRT M “remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation, and in any event that it survives by virtue of the military, economic, financial and political support given to it by theR ussian Federation.” The expression “local administration” is a qualification consistently used to define a non-recognized entity when it is closely linked to an existing sponsor State through the presence of this State’s troops and its large dependence on it. It is important to emphasize that in both the cases of the TRNC and Transnistria, the military intervention of Turkey and Russia, respectively, was decisive to their creation. The fact that foreign military intervention is a direct cause of their existence, linked with the continued presence of sponsor State’s forces and the entity’s general political and economic dependence on the sponsor State, explains the use of the term “local administration” of the sponsor State. The nature of the relationship between South Ossetia and Abkhazia and theR ussian Federation was analysed by the Independent International Fact-Finding Mission on the Conflict in Georgia. Its analysis concerned the period up to the outbreak of the 2008 armed conflict. In the case of South Ossetia several factors, such as the large number of South Ossetians possessing a Russian passport, the de facto control exercised by Russian officials on the governmental institutions of South Ossetia, the presence ofR ussian citizens in key functions in various ministries and in the security structure, were evidence of South Ossetia’s lack of independence and de facto control by Russia.59 Abkhazia was in a similar situation. Many Abkhazians have a Russian passport and vote in Russian elections. However, Russian control over the security apparatus was less extensive than

56 Ibidem, para. 78. 57 ECtHR, Ilascu and Others v. Moldova and Russia, judgment of 8 July 2004, Application no. 48787/99. 58 Ibidem, para. 316. 59 Report of the independent International Fact-Finding Mission on the Conflict in Georgia, pp. 132-133. The State between Fact and Law... 65 in South Ossetia and there remained a will among the inhabitants to retain some independence from Russia. In the opinion of the Fact-Finding Mission, South Ossetia was an “entity short of statehood”,60 while Abkhazia was more effective and less dependent on Russia and could thus be qualified as a “State-like entity.”61 It is worth noting that the Mission found that the “claims to legitimacy” of both secessionist entities were “undermined” by the expulsion of ethnic Georgians from these territories. As “Abkhazia does not meet basic requirements regarding human and minority rights, especially because it does not guarantee a right of safe return to IDPs/refugees”,62 it should not be recognized as a State. It seems that the lack of respect for human rights was thus an additional reason not to extend international recognition to these entities. In the case of the expulsion of a part of the population, this may also be linked to a breach of the right to self-determination, as a substantial part of the territories’ population is not present anymore and thus unable to take part in the determination of the territory’s fate. A different situation concerns purely de facto territorial authority, such as was the case Southern Rhodesia, a rather unique case of a non-recognized entity that was not established by a sponsor State but by internal forces, and thus could boast factual independence. The following sub-section demonstrates that non-recognized entities set up with the decisive help of a sponsor State are often in a situation of dependence towards them. In practice, their options are limited by the lack of international recognition.

1.3. Non-recognized entities in practice The concrete situation of non-recognized entities in practice highlights the paramount importance of recognition for statehood. The above-discussed case of the MRT illustrates the vulnerability of a de facto authority lacking international recognition. Its existence is generally considered to be possible thanks only to decisive Russian intervention during its secession attempt from Moldova in the early 1990s, as well as Russia’s continuing economic and financial assistance. This support clearly demonstrates the RTM ’s dependence on Russia, i.e. its lack of effective independence. At the same time RTM ’s sponsor has not shown any wish to extend recognition; Russian authorities prefer to maintain the status quo as a way to exert influence on Moldova.63 As a non-recognized de facto entity, Transnistria is treated as an instrument of Russian foreign policy. MRT also suffers from its vulnerability towards its sponsor State, i.e. the Russian Federation. It is disconnected from normal international life; for example, it cannot receive foreign direct investment, its currency is not convertible, and it cannot borrow money on the international markets. The only State willing to invest or lend funds is

60 Ibidem, p. 134. 61 Ibidem. 62 Ibidem, p. 135. 63 See K. Calus, Power politics on the outskirts of the EU: Why Transnistria matters, LSEE blog, available at: http://blogs.lse.ac.uk/lsee/2014/06/19/transnistria-power-politics/ (accessed 30 May 2017). 66 François Finck

Russia, hence its dependence on its sponsor-State is enhanced by the lack of recognition, creating a vicious circle. Yet the MRT case also shows that a non-recognized entity has to rely on recognized States to survive. In order to function more or less normally and to circumvent problems raised by its undefined status, MRT must rely on institutions involving recognized States. This allows MRT to exist indirectly on the international stage, but also renders it more dependent on its sponsor-State or its parent-State. For example, MRT’s goods are exported to the European Union thanks to Moldova’s agreement to the registration of Transnistrian companies as Moldovan. In turn, however, they have to adapt to the foreign economic and trade choices made by Moldova, on which they have no influence. In 2008, the EU extended autonomous trade preferences to Moldova, waiving customs duties on imports of Moldovan goods.64 As Transnistrian companies had the possibility to register in Moldova, their exports to the EU rose sharply.65 On one hand this somewhat relieved the secessionist region’s economy from its almost complete dependence on Russia, but on the other hand it made it dependent on the international trade choices of its “parent-State”. As a Deep and Comprehensive Free Trade Area agreement was concluded between Moldova and the EU, MRT, faced with the risk of losing an attractive market, has to adapt to the new legal context, on which it did not wield any influence. Viewed from the other side of the coin, in their relations with a de facto entity the “parent-State” and its partners face a choice between a policy of isolation or engagement. For the non-recognized entity itself, isolation carries catastrophic consequences. Thus RTM ’s dependence on Moldova is a result of its acceptance to benefit from the Moldovan State’s policy of engagement, the only other option being total dependence on Russia. Registration of Transnistrian companies in Moldova was actually in contradiction with the Transnistrian authorities’ strict separatist official stance, but it was the only way to access the EU market. Similarly, in the case of Somaliland non-recognition prevents the non-recognized authority from functioning normally: “[C]ontinued non-recognition has deleterious consequences for Somaliland. Non-recognition denies Somaliland access to ‘bilateral donor development assistance’ or the support of international financial institutions. It also imperils Somaliland’s survival.”66 The huge difficulties faced by non-recognized entities prove that international -rec ognition is constitutive of statehood in the contemporary world. A non-recognized entity is disconnected from international organizations, international trade relations, and the international financial system. It suffers from isolation and/or dependence on a sponsor State. In the latter case, this factual dependence is also fostered by the lack of

64 Council Regulation (EC) no. 55/2008 of 21 January 2008. 65 A. Lupusor, DCFTA in the Transnistrian Region: Mission Possible?, Policy Brief, Expert-Group, 20 September 2015, available at: http://www.expert-grup.org/en/biblioteca/item/1173-implementare-aa-tran snistria&category=184 (accessed 30 May 2017). 66 Farley, supra note 25, p. 813. The State between Fact and Law... 67 recognition, thus making it all the more difficult to obtain (the vicious circle). In both cases the non-recognized entity is not able to take part in normal inter-State relations. The analysis of the situation of non-recognized entities in the international legal system clearly shows that without recognition an authority, however effective, cannot be considered to possess international legal personality, which comes only with the willingness of existing States to treat it as a State. This leads to the next point, on the conflict between secession and the territorial integrity of the “parent-State”.

1.4. Secession and the territorial integrity of the ‘parent state’ In the sub-section above, the effects of a breach of a peremptory norm of international law on the attempt to create a State were analysed. The present section is about the relationship between an attempt to create a State through secession and territorial integrity. Is the territorial integrity of a parent-State able to prevent the creation of a State? In other words, is recognition by the parent-State a necessary condition for the creation of a new State? In its Advisory Opinion on the Kosovo declaration of independence, the ICJ confirmed that “the scope of the principle of territorial integrity is confined to the sphere of relations between States.”67 Territorial integrity does not apply to an attempt at secession from within the State, leading the Court to judge that “general international law contains no applicable prohibition of declarations of independence.”68 However, this does not mean that recognition of an attempt at secession is always lawful. Premature recognition – before the secessionist entity has managed to consolidate statehood – is a prohibited intervention into the internal affairs of another State. Moreover, contemporary practice shows that agreement to secession by the parent State, often made through its recognition of the secessionist entity as a State, is crucial. That can be illustrated by the examples of Chechnya and Somaliland. Chechnya fulfilled all the factual criteria of statehood after it proclaimed independence and managed to resist Russian’s attempts at re-taking control by force. However, in the absence of any international recognition, it did not benefit from the protection against the use of force granted to States by international law. According to the declaratory theory, the effectiveness of Chechnya’s independence should have sufficed to create a State. However, no State has ever treated Chechnya as a State. In the absence of any international recognition, Chechnya cannot be considered as having attained statehood within the meaning of international law. International law rules on the prohibition of the use of force thus did not apply to relations between Russia and Chechnya; Chechen secession was always treated as a purely internal Russian affair.69 In spite of Chechnya’ real and undisputable effective-

67 ICJ, Kosovo Advisory Opinion, p. 437, para. 80. 68 Ibidem, p. 438, para. 84. 69 See e.g. T. Grant, The Recognition of States: Law and Practice in Debate and Evolution, Praeger Publishers, Westport: 1999 at 29; Christakis, supra note 20, pp. 146-147; see also Dugard, supra note 2, pp. 136-138. 68 François Finck ness since 1991 – and at least after the 1996 Khasavyurt Accord putting an end to the Russian Army’s attempt at regaining control of the breakaway region70 – Chechnya has always been treated as a part of the Russian Federation, and the 1999 Chechen- Russian conflict was treated as an internal armed conflict. In this case, opposition to secession by the parent State was clearly the reason, at least at the political level, for the lack of recognition of Chechnya. This example shows that the establishment of de facto independence and effective government does not automatically lead to statehood under international law.71 It also highlights that without international recognition, a territorial entity, however effective, cannot claim the rights and protection afforded to States by international law. Chechnya had no chance to successfully claim the benefit of international norms such as the protection of territorial integrity from third States or the prohibition of the use of force in international relations. The facts in the case of Somaliland can be distinguished, as it has maintained factual independence and relative stability for 25 years, since the time when the parent State, Somalia, descended into anarchy. However, no governmental authority has existed for several years in Somalia; since its creation the government of transition has not been able to exert effective control over large parts of the country. Even though Somaliland fulfils all the criteria of effectiveness, it has not been granted recognition by any State. However, without recognition it is not regarded as a State. This case demonstrates that recognition has a constitutive effect on statehood within the meaning of international law.72 The lack of recognition of Somaliland in spite of its effective existence on the ground may be explained by a political preference on the part of the international community for a settlement of the Somalian conflict based on the concept of a single State. The UN Security Council affirmed the importance of the territorial integrity and unity of Somalia73 and the creation of a federal state system.74 The Somaliland question has always been treated as a part of the general collapse of the Somalian State. A specific insistence on territorial integrity (defended in and of itself, and not in conjunction with the prohibition of the use of force in the UN Charter) can be found in the African Union (AU) Charter.75 One of the purposes of the AU is “to defend [African States’] sovereignty, […] territorial integrity and independence.”76 The reac- tion of organs of African organizations, in particular the African Union, to secession attempts has often been to insist on the national unity and territorial integrity of the

70 Available in English at: http://peacemaker.un.org/russia-khasavyourtdeclaration96 (accessed 30 May 2017). 71 Christakis, supra note 20, pp. 146-147. 72 See also Dugard, supra note 2, pp. 53, 56. 73 For the latest example, resolution 2275(2016). 74 Ibidem. 75 Theodore Christakis, quoted by F. Ouguergouz and D. L.Tehindrazanarivelo, The Question of Secession in Africa, in Kohen (ed.), supra note 19, p. 257, fn 16. 76 Art. 2c OAU Charter (Addis-Abeba Charter); Art. 3.b of the Constitutive Act of the African Union. The State between Fact and Law... 69

State.77 In the cases of Somaliland and the Anjouan secession attempt, AU organs refused to recognize the secessionist entities, in spite of having realized some level of effectiveness and de facto independence.78 The recognition of Eritrea following its secession from Ethiopia is not generally considered as a true exception to these “rules”, because it concerned a State which had earlier gained independence from a colonial power. Eritrea re-gained independence from Ethiopia, but within the former, colonial borders.79 At the same time, the resolute non-recognition of Somaliland by the African Union is clearly in contradiction with this earlier practice, as this entity has been designed and created as a revival of the earlier State of Somaliland, which obtained its independence from the United Kingdom in 1960 – even if only for five days – before uniting with former Italian Somalia. The leaders of Somaliland have proclaimed independence and exercise effective control within the borders of the former British Protectorate of Somaliland, thus without infringing the respect of former colonial borders.80 This position with respect to Somaliland would seem all the more in contradiction to the usual practice in that the AU recognized South Sudan, a clear case of secession outside of colonial or post-colonial situations. However, the latter case of South Sudan was a case of “consensual secession”, even if the parent-State’s agreement was brought about by decades of conflict. In the practice of African States and organizations, great weight is given to agreement of the parent-State, whether in secession from former colonial borders, thus respecting the principle of uti possidetis, or in cases of “simple” secession, such as in the case of South Sudan. The question naturally arises: What is the relationship of this practice to general international law? Under international law, agreement by the parent State is not a necessary condition of accession to statehood of a secessionist entity. Territorial integrity does not protect a country from an attempt to secede. If agreement by the parent State were a condition for recognition by third States, and thus for full statehood, an effective entity following secession, however consolidated and long-standing, would not have any chance of ever reaching statehood. It would also mean that territorial integrity actually can be opposed to a secessionist entity, when it is actually only opposable to other States. However, if opposed by a parent-State, a high degree of factual independence is needed.81 Somaliland fulfils this condition of factual independence and effectiveness. The lack of recognition, and thus of state status, can be explained by the specific interests of the African Union and international community in the unity of Somalia and in an overall settlement of the Somalian conflict.82 Moreover, the priority placed by the African

77 Ouguergouz & Tehindrazanarivelo, supra note 75. 78 Ibidem, pp. 270-271. 79 Ibidem, pp. 267-268. 80 Dugard, supra note 2, pp. 139-140. 81 Crawford, supra note 2, p. 63. 82 Farley, supra note 25, pp. 809-810. 70 François Finck

Union on this issue is acknowledged by Western States, which show an “aversion to pre- empting the AU [which] stems from a desire not to meddle in Africa’s affairs.”83 There is a general preference of States for solutions to internal conflicts that favour territorial integrity and State unity. For obvious reasons, States are wary of recognizing entities established by unilateral secession attempts as States. Faced with this situation of an effective and reasonably stable entity lacking state status, and thus confronted with huge difficulties in their day-to-day functioning, some authors advocate Somaliland’s sovereignty in a progressive fashion,84 while others more decisively state that Somaliland fulfils the criteria of statehood and thus should be recognized as a State by the international community.85 Recognition by the parent-State is not, strictly speaking, a legal condition of statehood or of recognition by other States, but in practice it is often crucial. The case of Kosovo perfectly illustrates the difficulties involved with recognition of a unilateral secession against the opposition of the parent-State. While Kosovo has attracted many recognitions, at the same time it continues to face strong opposition, thus leaving its status ambiguous.86 This section on effectiveness (without recognition) has shown its essential character in the definition of a new State. However its value in cases of a weak effectiveness greatly depends on the legal and political context. Thus cases concerning the recognition of statehood in situations of limited effectiveness on the ground are dealt with in the next section.

3. Statehood without effectiveness: cases of limited effectiveness but broad recognition

The above sections have shown that international recognition is of immense importance for effective entities seeking statehood.E ffectiveness alone does not make a State; recognition is an additional but necessary criterion of statehood. In the opposite case scenarios, i.e. of entities displaying limited effectiveness, international recognition can have a status-creating effect. In international practice, entities with weak effectiveness, e.g. where the government does not control the entire territory, is highly ineffective, or is violently contested from the outset of its “independence”, may nevertheless be recognized as a State. There are even cases where the governmental authority has been purely nominal, was contested, and large parts of the territory were outside its control.

83 Ibidem, p. 812. 84 N. Y.S. Ali, For Better or For Worse? The Forced Marriage of Sovereignty and Self-Determination, 47 Cornell International Law Journal 417 (2014). 85 Farley, supra note 25, p. 787. 86 See below section 4. The State between Fact and Law... 71

Examples include the accession to independence of the Belgian Congo in 1960, when the government, itself divided in two camps, did not control the huge territory of the State and was confronted with secession attempts. Moreover, a state apparatus was almost non-existent.87 Guinea-Bissau was recognized by numerous States and was still fighting for its independence.88 It is possible to add the case of Bosnia and Herze- govina, which was recognized as a sovereign State even though the central government did not control much of its territory and was faced with secessions heavily supported by foreign powers, i.e. the Federal Republic of Yugoslavia and Croatia. These cases are characterized by a serious weakness of the new authorities, to the point that there were serious doubts about the fulfilment of the most important factual criterion – an effective government. Nevertheless these entities became States within the meaning of international law because of their international recognition: a collective and virtually unanimous (in the above two cases at least) willingness on the part of the international community to treat these entities as States, i.e. to acknowledge that they possessed the rights and duties of States. Recognition in these cases was the decisive criterion of statehood. Thus the question arises whether “effective government” is a criterion of statehood, or rather a part of the definition of a State and of a State’s functions or obligations, but which does not necessarily always have to be present in practice. In some cases it is closer to a wish made on behalf of the new entity, or may be seen as an obligation on the part of the new entity to build up a functioning State. This is often done in coordination with the international community, through State and Nation-building. Even though an effective government was lacking, international recognition was granted in the cases above because the legal basis of statehood was deemed more important than strict respect for the factual criteria. In cases of decolonization (for example, the Democratic Republic of the Congo, Guinea-Bissau), the realization of the right to self-determination constituted the fundamental legal basis for the recognition of the new State(s).89 Factual independence from the colonial power was deemed more important than the presence of an effective government. The new State could even be represented by a nominal government. The new States’ right to independence, in colonial situations based on the right to self-determination, guaranteed their international recognition even when the criterion of effective government was absent. Despite the lack of effective government, the new State’s right to exercise its authority was recognized. After independence was granted by Belgium, the right to govern this territory was recognized as belonging to the new Congolese State.90 The new State’s independence did not breach the administrative powers’ territorial integrity, and recognition was rather a tool for the international community to insist on the right of

87 See Crawford, supra note 2, pp. 56-57. 88 Cited by Christakis, supra note 20, p. 149. 89 UNGA Resolution 1514(XV), Declaration on the granting of independence to colonial countries and peoples. 90 Crawford, supra note 2, p. 58. 72 François Finck the new State to exist rather than the recognition of an effectively functioning State apparatus. The situation of Bosnia and Herzegovina is different, as it was recognized despite the lack of agreement and recognition of the parent State. The characterization of the breakup of the Socialist Federal Republic of Yugoslavia (SFRY) as a “dissolution”,91 and not as a series of secessions, allowed third States to avoid waiting for the agreement of the “parent- State” to extend international recognition to the new States. As the SFRY was considered extinct, there was no longer a central authority able to consent to the ‘secessions’. These cases illustrate that statehood is a legal status, encompassing the right to govern the territory to the exclusion of all other States. To be effective, this right has to be recognized by the other States, as the legal status of a State has significance in only in relation to the other primary subjects of international law. At the time of attaining its independence, South Sudan also had only a limited control over its territory. However, in its case its secession took place with the agreement of the parent-State. In the South Sudan case the relinquishment by Sudan of any claim to sovereignty was paramount.92 Following its independence, South Sudan was quickly admitted to the United Nations and recognized by most States of the international community. Thus in this case, the relinquishment by the parent State of claims to sovereignty was crucial and opened the way to international recognition, despite the limited effectiveness of the new State.93 In a case of “early” recognition of an entity, i.e. before it displays an effective government and while it lacks the consent of the parent State to secession, such recognition would most likely be deemed premature and thus an illegal intervention into the parent State’s internal affairs. This also appears to be the case when State authorities “disappear” (so-called “failed States”). Even if there is no central government anymore, the international personality of the State does not disappear. There may be no State within the meaning of political science, but the State within the meaning of international law is still considered to exist (i.e. the case of Somalia in the 1990s). However it is not able to agree to secession of part of the country. Nevertheless, the case of the non-recognition of Somaliland was rather due to the international community’s preference for a comprehensive settlement which maintained Somalia’s territorial integrity. Only policy preferences make it possible to distinguish this case from the SFRY: both States were “in a process of dissolution”; however, in Somalia’s case there was a continuous preference for a settlement within the framework of a single State. At the same time, there is nothing in international law to justify treating federal States and unitary States differently; the State’s internal organisation is not relevant in this regard.

91 Arbitration Commission of the Conference on Yugoslavia (Badinter Commission), Opinion no. 1. 92 See J. Vidmar, Explaining the Legal Effects of Recognition, 61 International and Comparative Law Quarterly 361 (2012), p. 368. 93 J. Vidmar, Territorial Integrity and the Law of Statehood, 44 The George Washington International Law Review 101 (2012). The State between Fact and Law... 73

The central role of recognition in the building of the international personality of a new State explains the efforts devoted to “recognition strategies” by States in statu nascendi, in parallel with their consolidation of effectiveness on the ground. Entities aiming at full statehood use recognition and the build-up of their position in international law to help consolidate their statehood on the ground. Recognition may then be used against the State from which independence is being sought. However, because the acquisition of statehood is often a lengthy process some territorial entities are doomed to have ambiguous status for a prolonged period, during which they are in the so-called “grey zone”: not yet fully States, but something more than “non-state actors”. The role of recognition in this process of state creation is dealt with in the next section.

4. The grey zone of statehood: acquisition of statehood as a process

As has been shown, the acquisition of state status is a complex process, whereby the consolidation of the effective existence of the entity in reality and its quest for recognition are intertwined. International practice has evolved from individual recognition by individual States to patterns of collective recognition (4.1). Collective recognition, through membership in universal international organizations and becoming party to multilateral treaties, is thus used by would-be States in their “recognition strategies” (4.2).

4.1. Collective recognition of new States Analysis of international practice shows that the acquisition of the legal status of a State (i.e. State creation) is a process wherein effectiveness on the ground and a parallel quest for international recognition both play a fundamental role. Effectiveness and recognition are often mutually reinforcing, while lack of recognition increases the lack of independence of non-recognized entities. Would-be States thus use a legal strategy of progressive recognition to advance their cases. Membership in international organizations, becoming a party to multilateral treaties – all are treated as steps towards international recognition and the achievement of statehood. Admission to the United Nations is central to the strategies employed by non-recognized entities. Admission to the UN may be treated as an act of collective recognition: “all other States within the United Nations accept the existence of each other as legal persons, even if they do not recognize each other politically.”94 Admission into the United Nations secures the existence of a new State as an international legal entity. It is the primary aim of any secessionist entity aspiring to statehood.95

94 Dugard, supra note 2, pp. 57-58. 95 Ibidem, p. 58. 74 François Finck

Admission to the UN forces all UN member States to treat the new member as a State, which is “the essential function of the legal act of recognition.”96 However, in the practice of the Secretary General of the UN with respect to international treaties the problem of determination of States able to become a party to a multilateral treaty appeared. The basic question was: When a treaty is open to “States”, how is the Secretary- General to determine which entities are States? The response of the Secretary General was the following: “If they are Members of the United Nations or Parties to the Statute of the International Court of Justice, there is no ambiguity.”97 Based on this, it seems clear that a member State of the UN or State-party to the ICJ Statute is a “State” within the meaning of international law. When a new State is admitted to the UN, there is a consensus, and thus no ambiguity. Difficulties appear in cases of non-admission (e.g. Kosovo, Palestine), either because of the veto of a permanent member of the UN Security Council or because of failure to gain the required majority in the General Assembly. In such a case, entities seeking statehood try to become members of other international organizations. In the words of the Report of the Secretary General: “Since that difficulty did not arise as concerns membership in the specialized agencies, where there is no “veto” procedure, a number of those States became members of specialized agencies, and as such were in essence recognized as States by the international community.”98 In turn, the “Vienna formula” opens the participation in a multilateral treaty to, for instance, “all States Members of the United Nations or of any of the specialized agencies.”99 Thus the next sub-section focuses on the recognition strategies of aspiring States, based on the examples of Kosovo and Palestine.

4.2. Aspiring States and recognition: the cases of Kosovo and Palestine Kosovo proclaimed independence from Serbia on 17 February 2008. The international administration of Kosovo has been somewhat reduced, and the Kosovar government has increased its effective control over the territory. Kosovo has applied a vol- untarist strategy of international recognition, garnering – according to its Ministry of Foreign Affairs – recognition by 111 States so far,100 or more than half of the members of the United Nations. Nevertheless its status remains ambiguous.101 States are not usually ready to recognize the independence of entities established following a non-consensual secession, i.e. where there is no agreement or recognition by the former sovereign of the secessionist entity as a State. This has led many States

96 Hans Kelsen, The Law of Nations: A Critical Analysis of Fundamental Problems, Stevens & Sons, London: 1951, quoted by Dugard, supra note 2, p. 62. 97 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, doc. ST/ LEG/7/Rev.1, para. 79. 98 Ibidem. 99 Article 81 of the Vienna Convention on the Law of Treaties. 100 See http://www.mfa-ks.net/?page=2,224 (accessed 30 May 2017). 101 See Vidmar, supra note 93, pp. 143-144. The State between Fact and Law... 75 which recognized Kosovo to argue that it is a sui generis case, i.e. one that cannot be a precedent for other, similar cases. However, Kosovo’s independence and recognition cannot be considered as sui generis. While it is a very specific set of facts, such is the case in many situations of secession and subsequent accession to independent statehood. The specific circumstances of Kosovo’s case should not place it outside the legal regime.102 The line of argument that there is no precedent is “normatively undesirable, because it undermines the very fabric of international law.”103 Several circumstances are legally relevant, and while their combination in Kosovo may well be very rare, and the precedent thus created “narrow”,104 it should not over- shadow the fact that they still form the basis of an evolution in the law and practice of recognition. In any case, given the current lack of consensus it is all the more a part of the debate about the circumstances in which unilateral secession may be accepted and a secessionist entity recognized as a State. Kosovo’s path to independence was characterized by an internal armed conflict, followed by ethnic cleansing, and subsequently by the establishment of an international administration. Resolution 1244 is still in force and the international administration it set up is still functioning, even though it proclaimed the end of supervised independence and has transferred powers to the local administration.105 Resolution 1244 does not contain any definitive decision as to Kosovo’s final status, but does refer to “respect for the territorial integrity of the FRY”. As such it does not bind Kosovar authorities,106 but it may have been a factor which prevented States from recognizing Kosovo. This is also a case of conflicts between the international regime created by a resolution of the UN Security Council, the evolution of the situation on the ground, and the expectations of a part of the international community. At the same time, the political situation has made it impossible to reach an agreement in the Security Council on changes to resolution 1244, or to a final settlement. The international legal regime should be able to evolve over time to respond to changing circumstances. Over the ensuing years, the Kosovar government has progres- sively established its authority over “its” territory and population. Moreover, the re- integration of Kosovo into Serbia seems highly impracticable and/or improbable, as evidenced by the failure of the Ahtisaari plan. In light of the lack of agreement on autonomy, and the strong opposition to re-integration by inhabitants of Kosovo, in-

102 H.H. Koh, Reflections on the Law and Politics of the Kosovo Case, in: M. Milanovic, M. Wood (eds.), The Law and Politics of the Kosovo Advisory Opinion, Oxford University Press, Oxford: 2015, p. 350. 103 A. Peters, Has the Advisory Opinion’s Finding that Kosovo’s Declaration of Independence was not Contrary to International Law Set an Unfortunate Precedent?, in: Milanovic & Wood (eds.), supra note 102, at p. 309. 104 Koh, supra note 102, p. 359. 105 J. Crawford, Kosovo and the Criteria for Statehood in International Law, in Milanovic & Wood (eds.), supra note 102, p. 286. 106 ICJ, Kosovo Advisory Opinion, p. 449, para. 114. 76 François Finck dependence was seen by many as the only solution. Kosovo thus seems to be a case of “remedial secession”, due to the earlier grave human rights violations and linked to an entrenched factual separation with Serbia, making re-integration politically difficult. Kosovo was able to use the period of international supervision to build its state structure on the ground and to convince other states of its ability to acquire independence. The internationalized process of state-building was no doubt decisive in the parallel processes of the creation of state structures and international recognition. The case of Palestine is a prime example of the process and strategy of recognition used by those entities seeking to gain international recognition, always treated in practice by the authorities of would-be States as the key to full statehood. The question of the rights of the Palestinian people, the legal basis for its statehood, and the evolution of the legal issue since 1948 will not be treated here.107 Instead this sub-section focuses on the Pales- tinian strategy of international recognition and its influence on the status of Palestine. To date, 132 member States of the United Nations have recognized the State of Palestine. In addition, the “State of Palestine” was granted “non-member observer State status in the United Nations” by the General Assembly.108 Jure Vidmar makes the point that “statehood cannot depend on voting procedures in international organizations.”109 Moreover, the status of observer does not wield the same effect as admission to the organization,110 as the “Observer State” does not enter into treaty relations with member States. Furthermore, while many arguments are presented against the idea of “implicit statehood” through a vote in the General Assembly, at the same time it can be considered that voting in favour of the resolution implied at least an implicit, de facto recognition. A vote in the General Assembly cannot be treated lightly by member States, and the granting of Observer State status means a willingness to treat Palestine as a State, and thus carries with it de facto recognition. Both Kosovo and Palestine are carrying out a strategy of recognition through membership in international organizations and by becoming parties to treaties and dispute settlement bodies, as highlighted by the recent developments surrounding Kosovo’s and Palestine’s respective applications to the Permanent Court of Arbitration.111 Statehood is the result of a dialectical process between fact and law. In both cases, the partial recognition and uncertain effectiveness have created an ambiguous legal status for both parties, putting them in the so-called “grey zone”. These borderline cases show that the path to statehood is not always clear-cut, with definitive answers on the existence or non-existence of a State. There can be a status“ mixtus” or “pre-State”.112

107 See Crawford, supra note 2, p. 434. 108 UNGA, resolution A/RES/67/19 of 29 November 2012, para. 2 109 J. Vidmar, Palestine and the Conceptual Problem of Implicit Statehood, 12 Chinese Journal of International Law 19 (2013), p. 22. 110 See above on collective recognition. 111 G. Zyberi, Membership in International Treaties of Contested States: The Case of the Permanent Court of Arbitration, ESIL Reflections No. 5, 10 March 2016. 112 J. Weiler, Editorial, 24 European Journal of International Law 1 (2013), p. 1. The State between Fact and Law... 77

The next section addresses the conundrum of recognition as a constitutive element of state creation.

5. The limits to acknowledging the constitutive effect of recognition

The constitutive effect of recognition in contemporary international law is a consequence of the development of the legal conditions of recognition and the need to assess the legality of State creation. This assessment can only be carried out by existing States. Acting collectively, their recognition is the difference between being and not being a State in the meaning of international law. The weight of recognition is confirmed by the lack of international legal personality of non-recognized entities, their situation in practice, the statehood of entities with limited effectiveness but general recognition, and the importance of recognition for aspiring States. Acknowledging the constitutive effect of recognition does not solve all the issues. A classical criticism of the constitutive approach is that a lack of international consensus can lead to recognition by only some member States, which leads to uncertainty and ambiguity as to the status of certain territorial authorities. However, the unsatisfactory nature of such a situation does not render it false or inappropriate. It reflects the complex nature and ambiguities involved in international practice. That said, there is nevertheless no fully satisfactory answer to the question: How many recognitions are needed to undoubtedly be a State? Admission to the United Nations has the value of collective recognition. A very large number of recognitions may even be conclusive. But a large number short of that, as in the case of Kosovo, does not yield any clear solution to the problem; and a widespread but not general recognition can create ambiguity rather than clarify the status of an entity.113 As noted by one author: “How much recognition, and by whom, are questions that will remain with fuzzy edges. But no more fuzzy than when similar questions are posed as regards the emergence of new norms of customary international law.”114 The main legal problem arising from this ambiguity of status is the question of the legal obligations of the non-recognizing States towards the non-recognized State. The non-recognition of Israel by some Arab States, or the policies of non-recognition of East Germany by Western States and of West Germany by Eastern bloc States during the Cold War, in spite of their membership in the UN, are cases of “political” non-recognition, i.e. where non-recognition is an outcome of political disagreement. Common UN membership means that they accept each other’s legal status as member States, even if they do not have diplomatic relations. Non-recognition by some States does not mean that international law is not applicable between them, i.e. that they do not have mutual obligations under international law (for example, as a minimum, to not resort to force). Political non-recognition – as expressed by a minority of States

113 Vidmar, supra note 93, p. 144. 114 Weiler, supra note 112, p. 3. 78 François Finck

– does not influence the statehood of the non-recognized State and thus does not di- minish the existence of international law obligations between them.115 When a “State” non-member of the United Nations is not recognized by a quite large number of States, the issue is more complex. At least an entity possessing some effectiveness and a substantial number of recognitions, such as Kosovo, has some solid claims to be treated as a State, even in the absence of an international consensus. As such, the non-recognizing States which ignore statehood when there are serious claims to this status (especially in cases of widespread recognition) “put themselves legally at risk if they ignore the basic obligations of State relations.”116 Political non-recognition can be distinguished from legal non-recognition because of a violation of a norm of international law or a lack of real independence, often accompanied by a clear position of the UN on an obligation not to recognize, as in the examples of Southern Rhodesia and the TRNC. In these cases, there is a legal obligation of non-recognition and not to treat the entity as a State within the meaning of international law. In other words, legal non-recognition denies the new entity the legal status of State, whereas political non-recognition is more of a political statement and does not necessarily entail a refusal to accept the State’s legal personality. A typical case of political non-recognition was the withholding of formal recognition of Macedonia. International recognition by a majority of States only happened several months, and in some cases even several years, after the State had actually been established.117 Moreover, no State contested the establishment of an independent Mace- donian State, even Serbia (i.e. there were no territorial claims by the parent-State; independence was proclaimed as the SFRY was engaged in a process of dissolution). Instead it was a case of political non-recognition due to disagreement over the name of the new State, accompanied by de facto recognition as there clearly was a readiness to treat Macedonia as a State.118 There was a clear recognition that Macedonia possessed the rights and duties of a State, but several States, especially members of the European Community, did not want to enter into diplomatic relations with Mace- donia under its constitutional name. The EC stated that it was ready to recognize Macedonia as a State, which shows clearly that the lack of formal recognition was due to political reasons (the opposition of Greece to the use of the name “Macedonia”), but at the same time the EC generally acknowledged the existence of Macedonia and treated it as a State;119 “[s]ince the issue standing in the way of recognition did not go to statehood, it is proper to conclude that Macedonia’s status as a State was not in question.”120

115 Frowein, supra note 3, para. 12; Dugard, supra note 2, pp. 61-64. 116 Brownlie, supra note 2, para. 13. 117 See M. Wood, Macedonia, in: Max Planck Encyclopaedia of Public International Law, OPIL Oxford University Press, Oxford: 2010. 118 See Vidmar, supra note 92, p. 372. 119 Warbrick, supra note 18, p. 437. 120 Ibidem, p. 438. The State between Fact and Law... 79

Political non-recognition can thus be compared to a refusal to enter into diplomatic relations with a State. Political non-recognition does not call into question the status of the new State; it is often accompanied by a de facto recognition of the State.

Conclusions

International practice shows that international recognition plays a fundamental role in State creation. It is a pre-requisite of statehood under international law – a necessary, but not sufficient, condition of the acquisition of the status of a state. The usual definition of a “State” according to the Montevideo Convention comprises the existence of an effective government exercising authority over a territory and a population independently from any other State, and the capacity to enter into relations with other States. This last criterion has been defined as a consequence of statehood and of government and independence, and as such is independent from recognition by other States. This approach is coherent with the conception of State creation as a matter of effectiveness. However, it has been shown in this paper that this capacity may be better understood as the legal capacity to enter into relations with other States, which is determined by already existing States themselves through recognition. Moreover, the essential criterion of effectiveness has been complemented by conditions established by international law. Instead of being a legal fact (effectiveness creating legal consequences), State creation has become a process governed by international law. In the absence of a central authority, the legality of State creation can only be assessed by other States. Their recognition of the validity of the creation of the new State is thus constitutive of statehood under international law. The appearance of international law criteria changes the value of effectiveness, and thus the relationship between fact and law, and as a consequence the value of recognition. As State creation becomes a matter of international law, recognition becomes a legal condition of statehood. The importance of the legal conditions is proven by the non-recognition of those entities created as a result of a breach of international law; however effective they may be, non-recognition, as a sanction of the illegality of their creation, denies them statehood. In most cases, their dependence on a sponsor State causes them to be considered as not much more than an organ of that State, although it must be borne in mind that such findings have been arrived at in specific legal and factual contexts. The practice of non-recognised entities, and/or aspiring States, illustrates that recognition is indispensable to attaining a meaningful existence in the contemporary international system. The territorial integrity of the parent State is also a barrier to recognition of the statehood of a seceding entity. Although recent practice has evolved towards greater ambiguity in this respect, nevertheless the reactions to the independence bid of Kosovo have shown that recognition of a secession without the parent State’s acceptance is not generally accepted; even States which recognised Kosovo have strived not to treat it as a precedent. The case of Somaliland also shows the weight still attached to territorial integrity, even in a situation of dissolution of the “parent-State”. It also proves a point 80 François Finck made throughout this article: effectiveness and factual independence are of limited value without international recognition, which is how state status is ultimately acquired. The value of recognition in situations of limited effectiveness on the part of the aspiring state varies, depending on the legal context. In cases of decolonisation, recognition acknowledges the right to statehood of the new State despite its sometimes limited effectiveness. This has constituted a fundamental step in the development of the legal aspect of State creation, as it is not merely a question of fact anymore but may, in the colonial context, be a way to realise the internationally guaranteed right to self-determination. The cases of secession are more complex, and in principle still face the barrier of the right to territorial integrity of the parent State. Unilateral secession, without consent of the territorial parent state, does usually not lead to recognised statehood. Leaving aside from the Kosovo case, there are contradictory practices in cases of “dissolution”, i.e. when the central authorities are decaying or have become powerless or even non-existent. The loss of control of the Socialist FederalR epublic of Yugoslavia over its secessionist Republics was described as a dissolution, opening the way to recognition of the former Republics as States. However, the implosion of Somalia’s central government at more less the same time was not deemed to impair its territorial integrity and did not lead to the recognition of any entity claiming control over part of its territory. As has been demonstrated, such variance in the actual practice of State creation may best be explained by policy choices over what was rightly or wrongly considered as the best way out of a crisis. The crucial importance of recognition leads would-be States to develop a “recognition strategy” through membership in international organisations – in principle reserved to States. This incremental quest for recognition is explained by emerging patterns of collective recognition and the role played by international organisations in State creation. At the same time, however, it is obvious that recognition in and of itself, however politically valuable, does not lead to the establishment of facts on the ground and the creation of an effective state (as the cases of Western Sahara or Palestine clearly show). The recognition of Kosovo by about two-thirds of the world’s States and its attainment of some measure of effectiveness give it an ambiguous status. Thus an overview of existing practice shows that there is no “objective” path to statehood under international law via compliance with a set of factual criteria on statehood. Collective recognition is not only necessary, it is at the same time constitutive. In this way collective recognition avoids the main shortcoming of the constitutive theory, i.e. arbitrariness and the relativity of statehood. However, in cases where recognition is widespread but not universal, the constitutive effect of recognition can create a situation characterized by ambiguity. The constitutive effects of recognition are also confirmed by the fact that non-recognized entities, however effective, exist in a legal limbo. Non-recognition in such cases can have many causes – not the least being a breach of the prohibition of the use of force by a secessionist entity’s “sponsor-State”, or the will of the international community to avoid ratifying the disintegration of a State, such as happened in the case of Somaliland. The State between Fact and Law... 81

Thus effective control of a territory is not in and of itself sufficient for a would-be State to exist in the realities of the current international scene. Without recognition, an entity is not a State and thus not a member of the international community and a full-fledged subject of international law; it is unable to use international law institutions and claim its protection. Recognition is a necessary but not sufficient condition of statehood. Recognition is a pre-requisite of statehood, an essential criterion that may even trump weak or partial effectiveness in certain legal contexts, although not a lack of factual independence. Conversely, the effectiveness of government authority over a population and territory does not lead automatically to statehood, within the meaning of international law, in the absence of international recognition.

XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016e 2016 PL ISSN 0554-498X

Wojciech Burek*

Family reunification regulations and women: the perspective of international law

Abstract: The concept of family reunification is well established in contemporary migration laws, at both the national and international levels. Focusing on international and EU law, in this article I argue that while existing provisions on family reunification are formulated in neutral language, from the gender point of view the enforcement of these substantively neutral rules may, in certain situations, result in discrimination, or at least bring about negative consequences, with respect to women in cases both when they are the sponsors of migration or the bearers of consequences of male migration. Following presentation of the international legal framework on family reunification and the relevant international jurisprudence, I deal with some rather common aspects relating to the personal scope of family reunification regulations, covering only the issues of who can, and who cannot, join their family member(s)/sponsor(s) in a foreign country (i.e. the unmarried minor rule, excluded forms of marriages – polygamous and forced marriages - and age limits). Some procedural aspects of family reunification are then dealt with (waiting periods, delays in proceedings, and end of a relationship as a cause for termination of residence rights.). These issues are examined with respect to concerns that they may cause indirect, or even direct, gender discrimination in some cases, while in others they may affect women more negatively than men.

Keywords: Directive 2003/86/EC, family reunification, gender discrimination, international law, women’s rights

* Assistant professor, Institute of European Studies, Jagiellonian University in Kraków (Poland); e-mail: [email protected]. The author would like to thank the organizers (the Hague Academy of International Law), Directors of Studies (Professors Maarit Jänterä-Jareborg and Hélène Tigroudja), the Peace Palace Library staff, and all participants at the 2014 session of the Centre for Studies andR esearch “TheR ights of Women and Elimination of Discrimination” for their help and their comments on the concepts contained in this work during the session. All errors or omissions remain my own. 84 Wojciech Burek

Introduction

The concept of family reunification is well established in contemporary international law, particularly in international human rights law. It can be described in simple terms as a situation whereby a family member or members join another member of the family who is already residing lawfully in another country (the sponsor). Family reunification is directly connected with immigration, which explains why is not only a purely legal issue but also a highly sensitive political one. This is especially true in the developed world and the migrant-receiving countries, for instance in the EU countries, where family reunification “is generally believed to account for a large proportion of immigration.” In previous years these figures were very high in some of these countries, accounting for almost 60% of all accepted immigrants. However, due to the current (2015-2017) refugee crisis in Europe and mass influx of migrants seeking refugee status, the percentage of migrants receiving residence permits based on family reunification is, compared to the overall numbers of immigrants in many European countries, much lower. This is probably one of the reasons why many migrant-receiving states are so reluctant to accept the idea of family reunification as a basic human right, or support stronger international obligations in this area. In looking at the international regulations on family reunification from the point of view of the rights of women and the elimination of gender discrimination, one should first of all observe that both in international human rights law as well as in EU law the exercise of specifically detailed rights (e.g. the right to family life) should be enforced without discrimination, including sex discrimination. The obligation to respect and ensure human rights without distinction of sex can be found not only in human rights treaties of general application (e.g. in Articles 2 and 3 of the ICCPR),

R. Lawson, Family Reunification Directive – Court of Justice of the European Communities, 3(2) European Constitutional Law Review 324 (2007), p. 324. K. Groenendijk, Family Reunification as a Right under Community Law, 8(2) European Journal of Migration Law 215 (2006), p. 215. E.g. Danish statistics for 2015 show that the number of residence permits granted on the basis of family reunification accounted for around 15% of all entry permits granted for that year – see The Danish Immigration Service, Statistical Overview Migration and Asylum 2015, Copenhagen: 2016, at p. 2. A clear example of such reluctance is reflected in the position taken by Japan, Liechtenstein and Switzerland towards the rather vague provisions on family reunification in Article 10(1) of the Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3) (CRC). Japan registered a declaration and the other above-mentioned countries entered reservations, all of which aim to protect their states’ absolute freedom in deciding on family reunification – see UN Treaty Collection. While having in mind the differences between “sex” and “gender” discrimination, I follow the dominant practice in the literature on this subject and use both terms interchangeably. For an example of their interchangeable usage, see, inter alia, M. Nowak, U.N. Covenant on Civil and Political Rights. CCPR Commentary, N.P. Engel Publisher, Kehl: 2005, passim. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). Family Reunification Regulations and Women... 85 but also in more specific international instruments (e.g. Article 1 of theICRMW and the 1979 Convention on the Elimination of All Forms of Discrimination against Women – CEDAW – passim). Also one can find gender equality provisions in primary EU law, in particular the provision that the EU “in all its activities (…) shall aim to eliminate inequalities, and to promote equality, between men and women” (Article 8 of the TFEU).10 The same is true for the ILO Conventions. Edel rightly observed that all “declarations of rights inherited from the Enlightenment tradition (...) guarantee equality between human beings by prohibiting discrimination”,11 obviously including sex discrimination. As will be shown in part 1, all of the above-mentioned instruments are relevant to family reunification. Hence international legal instruments and regulations which contain, or from which one can derive, provisions on family reunification are not only formulated in neutral language from the gender point of view, but also the application of these instruments/ regulations should take place without sex discrimination. For instance the CEDAW Committee, in its General Recommendation No. 21 (Equality in marriage and family relations), argued that “[m]igrant women who live and work temporarily in another country should be permitted the same rights as men to have their spouses, partners and children join them.”12 In most cases, the principal problems with women’s rights in the context of family reunification regulations (similarly as to other fields) lie with the enforcement of substantively neutral rules, rather than with the rules as such. This is especially true in situations where a restrictive approach to family reunification is taken. In such instances there is no room for a case-by-case approach or for taking the special circumstances of a given case into consideration. Restrictive practices may entail negative consequences predominantly (but not exclusively) for women in both possible situations. i.e. when women are the sponsors of immigration or bear the consequences of male migration. There is an extensive literature on the gender aspects of migration and the common understanding is that migration negatively affects women more than men (in the sense that women migrants are more often victims of forced labour, different forms of violence, deterioration of skills, and other forms of injustice and arbitrary treatment).13 It is also

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3 (ICRMW). Convention on Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW). E.g. Article 2 of the Treaty on European Union (Maastricht Treaty, as amended), consolidated version, OJ [2010] C 83/13 (TEU). 10 Treaty on the Functioning of the European Union, consolidated version, OJ [2010] C 83/47 (TFEU). 11 F. Edel, The Prohibition of Discrimination under the European Convention on Human Rights,Council of Europe Publishing, Strasbourg: 2010, p. 7. 12 CEDAW, General Recommendation No. 21, UN Doc. A/49/38 (1994), para. 10. 13 For the European perspective see, inter alia, the recent collection of interdisciplinary studies: H. Stalford, S. Currie, S. Velluti (eds.), Gender and Migration in 21st Century Europe, Ashgate, Farnham- 86 Wojciech Burek postulated that the gender perspective is neglected by states in their internal immigration policies, which contributes to furthering gender stereotypes.14 Linking this to family reunification regulations and practices, one can point out, for instance, that a rather principal condition for family reunification is that the sponsor of family reunification should legally reside in the receiving country. Many women migrant workers do house- hold work or take care of elderly and sick persons in their homes,15 and this area of employment (personal care/domestic work sector) in many migrant-receiving countries is outside of the official labour market, even for their nationals. In the case of migrant workers, this means that these women migrants are often undocumented, i.e. do not have legal residence in the countries where they work, and as such fall outside the family reunification system. One can also pose the question: How does gender influence states in the process of balancing their sovereign right to decide on the conditions upon which aliens’ may enter their territory with the aliens’ rights to respect and protection for their family life? In many cases, this kind of balancing is the core issue when states decide whether to grant permission to enter their country for family reunification reasons. Further empirical – and not only legal – studies are needed to answer this question and to verify the above-stated observations concerning undocumented women migrant workers, especially in the light of the fact that in many countries there are other areas of illegal employment occupied predominantly by male migrant workers (e.g. building sites). It is also extremely difficult to suggest any clear-cut solutions to these problems. While these matters are not completely neglected in this article, by and large they fall its scope and the research perspective.16 While the public international law perspective is dominant in this work, some references to private international law are also necessary, with the main observation being that private international law, traditionally very liberal in recognizing, for instance, different forms of marriages, is used instrumentally in the area of family reunification to justify restrictive positions taken by most of the migrant-receiving countries.

Burlington: 2010. For a global perspective see, inter alia, the recent collection of contributions: T. Truong, D. Gasper, J. Handmaker, Bergh S. I. (eds.), Migration, Gender and Social Justice. Perspective on Human Insecurity, Springer, Heidelberg-New York-Dordrecht-London: 2014. 14 See, inter alia, M. Chou, EU Mobility Partnerships and Gender: Origin and Implications, in: R.A. Sollund (ed.), Transnational Migration, Gender and Rights, Emerald, Bingley: 2012, pp. 11-31. Possible examples of gender stereotyping were also suggested by Sherlock in her observation: “[i]f migrant women are considered more to be consumers of welfare and state resources than men, then arguably the criteria of selection of family members of admission will have a gendered aspect” – see C. Sherlock, Gender, Family Unity and Migration: Discourses and Dilemmas, in: Stalford et al. (eds.), supra note 13, p. 224. 15 This is especially true for Filipina workers. This phenomenon has been the subject of extensive studies –see, inter alia, R.S. Parrenas, Migrant Filipina Domestic Workers and the International Division of Reproductive Labor, 14(4) Gender and Society 560 (2000), and the references therein. 16 Another issue which needs further studies and, as such, won’t be considered in this article is intersectional discrimination in the context of family reunification. For an empirical study on the intersectional discrimination experienced by women migrant workers, see E. L. Sweet, S. S. Lee, S. Ortiz Escalante, A Slow Assassination of Your Soul: Race, Citizenship and Gender Identities of New Economic Places, in: Sollund (ed.), supra note 14, pp. 99-126. Family Reunification Regulations and Women... 87

In part 1 a brief overview of the current legal framework on family reunification (which at the same time coincides with the scope of this study) and international jurisprudence on family reunification and women’s rights are presented. Next, in parts 2 and 3, the analysis is conducted from the point of view of specific areas and issues related to family reunification regulations which seem to be especially prone to produce either direct or indirect discrimination against women, or bring about negative effects to predominantly women. These parts deal with some aspects of the personal scope of family regulations, but only in relation to the issues of who can, and who cannot, join their family member (sponsor) in a foreign country (i.e., the unmarried minor rule; excluded forms of marriages – polygamous and forced marriages; and age limits). The conditions in place in many jurisdictions and in international regulations relating to the sponsor (e.g. stable income, adequate housing) will not be discussed, mainly because there is not enough evidence to link them directly to women’s rights and the elimination of sex discrimination (similarly to the issue of legal residence, mentioned above).17 Some procedural aspects of family reunification are then examined (waiting periods, delays in proceedings, and end of a relationship as a cause for terminating legal residence). With regard to some of the above-mentioned issues, doubts are raised regarding indirect, and in some cases even direct, discrimination. Other doubts are presented in the context of affecting women more negatively than men. The conclusions contained in part 4 offer some general considerations on how and why the restrictive rules make women victims in many cases, summarize the main findings of the study, and propose some recommendations.

1. The International Legal Framework on Family Reunification and International Jurisprudence on Family Reunification and Women’s Rights

In international law, specific provisions on family reunification are rather rare. In most situations they result from the obligation of states to protect family and the right to respect for family life, as is laid down in both universal and regional instruments of human rights protection (e.g., Articles 12 and 16(3) of the UDHR,18 Articles 17 and 23(1) of the ICCPR, Article 10(1) of the ICESCR,19 Article 8 of the ECHR,20 and Articles 11(2) and 17(1) of the American Convention on Human Rights21). In interna-

17 However, further studies are needed to determine if there is a gender bias in family reunification regulations, having in mind that the person entitled to family reunification, in most cases, is a sponsor who is male. 18 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR). 19 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR). 20 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (adopted 4 November 1950, entered into force 3 September 1953) (ECHR). 21 American Convention on Human Rights “Pact of San Jose, Costa Rica” (adopted 22 November 1969, entered into force 18 July 1978) OAS Treaty Series No. 36 (ACHR). 88 Wojciech Burek tional human rights law, the ESC,22 the CRC,23 and the ICRMW24 are the only treaties to include specific articles addressing the issue of family reunification. It has to be noted, however, that the CRC is almost universally accepted (196 parties), while the ICRMW has been ratified by only 49 states and only a few of them can be described as migrant- receiving countries.25 And the ESC, adopted within a regional international organization, i.e. the Council of Europe, has been ratified by only 27 of the 47 member states. More detailed provisions on family reunification can be found in the 1975 ILO Convention No. 143.26 However, the most detailed regulations on the family reunification are found by far in two regional – European – legal instruments. The 1977 European Convention on Legal Status of Migrant Workers,27 adopted within the Council of Europe, deals with family reunification in detail in its Article 12(1)28 followed by provisions on possibility of entering declarations (Article 12(2) and

22 European Social Charter (adopted 18 October 1961, entered into force 26 February 1965), CETS No. 35 (ESC). State parties are obliged to undertake “to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory” (Article 19(6)). 23 Article 10(1) requires states to ensure that applications for family reunification which involve children “shall be dealt with by State Parties in a positive, humane and expeditious manner”. In the case of refugee children, under Article 22(2) state parties are obliged to cooperate, i.e. with the UN, to “to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family.” For more on these provisions,see S. Detrick, A Commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, The Hague: 1999, pp. 183-202, see also 361-375. 24 Article 44(2) requires state parties to “take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their spouses or persons who have with the migrant worker a relationship that, according to applicable law, produces effects equivalent to marriage, as well as with their minor dependent unmarried children.” 25 See, inter alia, J. Schneider, Demystifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families: Why Are States so Reluctant to Ratify?, in: D. Henschel, S. Graf Kielmansegg, U. Kischel, C. Koenig, R. A. Lorz (eds.), Mensch und Recht. Festschrift fürEibe Riedel zum 70. Geburtstag, Duncker&Humblot, Berlin: 2013, p. 153. One of the reasons for the reluctance of so many States towards this treaty is its provisions on family reunification – see M. Grange, M. d’Auchamp, Role of Civil Society in Campaigning for and Using the ICRMW, in: P. de Guchteneire, A. Pécoud, R. Cholewinski (eds.), Migration and Human Rights. The United Nations Convention on Migrant Worker’s Rights, Cambridge University Press-UNESCO Publishing, Cambridge: 2009, p. 78; and in the same book: R. Ryan, Policy on the ICRMW in the United Kingdom, pp. 285-286; H. Oger, The French Political Refusal on Europe’s Behalf, pp. 307-309; K. Touzenis, Migration and Human Rights in Italy: Prospects for the ICRMW, p. 353. 26 Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (adopted 24 June 1975, entered into force 9 December 1978) 1120 UNTS 323. Its Article 13(1) provides that “[a] Member may take all necessary measures which fall within its competence and collaborate with other Members to facilitate the reunification of the families of all migrant workers legally residing in its territory”, and Article 13(2) provides that “the members of the family of the migrant worker to which this Article applies are the spouse and dependent children, father and mother.” The latter provision is rather unique as the other international provisions on family reunification refer only to the nuclear family (spouses/partners and one or more children). 27 European Convention on Legal Status of Migrant Workers (adopted 24 November 1977, entered into force 1 May 1983), CETS No. 93. 28 “Article 12 – Family reunion Family Reunification Regulations and Women... 89 derogations (Article 12(3-5). It has to be noted, however, that among the 11 state parties (again, out of 47 member states), three29 entered a declaration under Article 12(2) with the effect of making family reunification “further conditional upon the migrant worker having steady resources sufficient to meet the needs of his family.”30 In the context of the European Union, family reunification is regulated in an even more detailed way, in EU Directive 2003/86/EC on the right to family reunification.31 In the Directive’s preamble, special mention is made that Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation (Recital 5). The Directive contains a legal definition of family reunification: the entry into and residence in a Member State by family members of a third country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident’s entry.32 Based on the practice of international courts and treaty monitoring bodies, this definition could be rewritten to create a broader definition of more general use (not only within the EU context), which would also include not only positive obligations towards aliens, but some negative ones too, and cover situations where citizens are involved. Such a definition could be as follows: “The entry into and residence in or remaining in a State by family members of an alien residing lawfully in that State, or of alien family members of a citizen residing in that State, in order to preserve the family unit.”

1. The spouse of a migrant worker who is lawfully employed in the territory of a Contracting Party and the unmarried children thereof, as long as they are considered to be minors by the relevant law of the receiving State, who are dependent on the migrant worker, are authorised on conditions analogous to those which this Convention applies to the admission of migrant workers and according to the admission procedure prescribed by such law or by international agreements to join the migrant worker in the territory of a Contracting Party, provided that the latter has available for the family housing considered as normal for national workers in the region where the migrant worker is employed. Each Contracting Party may make the giving of authorisation conditional upon a waiting period which shall not exceed twelve months.” 29 France, the Netherlands and Norway. 30 The possibility of entering these kinds of declarations (“at any time”) contained in Article 12(2), as well as temporal derogations (again “at any time”) from Article 12(1), provided for in Article 12(3) are quite unusual and as such confirm a reluctance towards and constraints on family reunification obligations. 31 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ [2003] L 251/12. However, this is not the only legal source of family reunification in theE U. For instance, if the sponsor of family reunification is an EU national, admission of his family members is governed by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states, amending regulation (EEC) No 1612/68 and repealing directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ [2004] L 158/77. 32 Article 2(d). 90 Wojciech Burek

According to the UN International Migration Reports, most, but not all, migrant- receiving countries have provisions allowing for family reunification under certain conditions.33 In spite of the fact that in most cases these provisions are designed to implement the above-mentioned international obligations of these countries, the interpretation of these provisions and the determination of the conditions under which family reunification is permissible vary among countries. One of the reasons for the considerable diversity of family reunification regulations and practices is the fact that, as Cholewinski rightly observed, “specialist international instruments, both of universal and regional scope, invoke the principle of family reunion, although they do not go so far as to recognize it as a right.”34 In consequence, states are not bound by international law to guarantee family reunification. However, decisions on granting family reunification can fall within the scope of protected rights, like for instance the right to respect for family life. In this context only, most international courts and treaty monitoring bodies35 set minimal standards for family reunification and monitor States’ practices. When considering international jurisprudence on family reunification and women’s rights one should focuses on two cases which have become of interest to international judicial bodies, both of which considered issues relating to family reunification directly in the context of the prohibition of discrimination on the grounds of sex.36 Both cases are from the 1980s, and both are clear examples of regulations on family reunification which discriminate against women in a direct way and, as such, are reminiscent of the past, when openly discriminatory (on the grounds of sex) regulations in different fields of law were common even within Western European legal systems.37 The first of the two cases (chronologically) was considered by the Human Rights Committee.

33 2006 International Migration Report of the UN Department of Economic and Social Affairs, p. 10. Azerbaijan is an example of a country which recently experienced waves of immigration without legislation on family reunification. This situation was recently criticized by the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families during consideration of the second periodic report of Azerbaijan under Article 73 of the ICRMW (CMW/C/AZE/CO/2, para. 38). 34 R. Cholewinski, Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Right, 4(4) European Journal of Migration Law 271 (2002), p. 275. 35 Apart from the courts and those bodies which can interpret and deal with family reunification directly, based on specific regulations. This is the situation especially with respect to the CWM Committee (Article 44(2) of the ICRMW) and the CJEU (EU Directive 2003/86/EC), and also to a lesser extent, having in mind the fragmentary regulation of the CRC (Articles 10(1) and 22(2), the CRC Committee. The ILC Convention No. 143 and the European Convention on Legal Status of Migrant Workers do not provide for either monitoring or judicial bodies. 36 Family reunification was also mentioned in the facts of a case submitted to the EC DAW Committee (under the Optional Protocol to the CEDAW), but the main issues in this case were child custody and the execution of domestic court judgments; see M. K. D. A.-A. v. Denmark, Communication No. 44/2012 (2013). 37 There are numerous examples confirming this statement. For example, the first serious revisions of the directly discriminatory provisions on the legal status of married women in the French Civil Code began only in 1964; see B. Audit, Recent Revisions of French Civil Code, 38(3) Louisiana Law Review 747 (1978), passim. Family Reunification Regulations and Women... 91

The HumanR ights Committee considered several communications concerning family reunification submitted under the Optional Protocol to the ICCPR.38 Only in one of them,39 that being one of the first cases that was brought to RH C, was a gender discrimination claim raised. In this case, the allegedly threatened family unit concerned persons with different citizenships, including persons with citizenship of the state in which the family was going to live, and the alleged threat to the family related to the risk of an inability to stay in the country, and not refusal to enter that state by a family member. In the case of Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius,40 the complaint’s authors claimed that changes made (with retroactive effect) in the law on the legal situation of aliens (foreign husbands must apply to the Minister of the Interior for a residence permit and in case of refusal of the permit they have no possibility to seek redress before a court of law41), were discriminatory for Mauritian women and infringed on, inter alia, the right to respect for family life (Article 17) and the obligation to protect family (Article 23(1)). In relation to the three applicants who were married to a foreigner,42 the HRC focused, in the first instance, on the alleged violations of Articles 2(1) and 3 in conjunction with Article 17 of the ICCPR. In this context, it noted that “[t]he authors who are married to foreign nationals are suffering from the adverse consequences of the statutes discussed above only because they are women.”43 It formulated the following justification for finding a violation of the provisions contained in the Articles: Whenever restrictions are placed on a right guaranteed by the Covenant, this has to be done without discrimination on the ground of sex. Whether the restriction in itself would be in breach of that right regarded in isolation, is not decisive in this respect. It is the enjoyment of the rights which must be secured without discrimination. Here it is sufficient, therefore, to note that in the present position an adverse distinction based on sex is made, affecting the alleged victims in their enjoyment of one of their rights. No sufficient justification for this difference has been given.44 A similar conclusion and justification ended the short analysis of the infringement of Article 23(1),45 however this time in connection not only with Articles 2(1) and 3,

38 Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (OP-ICCPR). 39 In other cases regarding family reunification, the RH C did not consider claims of gender discrimination. See, inter alia A. S. v. Canada (A. S. v. Canada), Communication No. 68/1980 (1984), Benjamin Ngambi v. France (Benjamin Ngambi v. France), Communication No. 1179/2003 (2004). 40 Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius, Communication No. R.9/35 (1981). 41 Ibidem, para. 7.2. 42 The remaining seventeen were unmarried. In relation to this group, the RH C stated that one could not speak about any infringement of the ICCPR, since they were not actual victims of the infringement of its provisions, and their complaint, as actio popularis. 43 Ibidem, para. 9.2 (b) 2 (i) 6. 44 Ibidem, para. 9.2 (b) 2 (i) 8. 45 Ibidem, para. 9.2. (b) 2 (ii) 1-4. 92 Wojciech Burek but also in connection with Article 26 (principle of equality before the law and equal protection of the law).46 Mauritius subsequently informed the HRC that it had amended the discriminatory provisions of the laws in question.47 TheShirin Aumeeruddy-Czif- fra case is a clear example of discrimination on the grounds of sex in regulations directly connected with the exercise of rights relating to respect for family life and the obligation of a state to protect family. It is not a typical case of family reunification, since the families of the applicants, as a result of the discriminating regulations, could be only potentially divided. However, the very existence of discriminatory regulations reduced the legal certainty of not only the applicants’ families, but also of future families placed in situations typically related to family reunification. The problem of discrimination against women also appeared also in the first case considered by the Strasbourg court concerning family reunification,48 i.e. in the case of Abdulaziz, Cabales and Balkandali v. The United Kingdom.49 The applicants were three women, foreigners, living legally and permanently in the United Kingdom, whose husbands (not having British citizenship) were refused to remain or reunite with them in the United Kingdom. According to the immigration laws in force at the time of the case, stricter conditions existed for husbands seeking to remain or reunite with their wives than for the wives of settled men (i.e. the Court found that “[w]ives admitted under these rules [on family reunification – author] would be given indefinite leave to enter; husbands would be initially admitted for twelve months.”50).51 The applicants claimed that this practice violated, inter alia, their right to respect for family life (Article 8) and that it was discriminatory on the grounds of sex and, as such, was contrary to Article 8 in conjunction with Article 14 (prohibition of discrimination). The Court, finding that “the applicants have not shown that there were obstacles

46 For more on the nature of the anti-discriminatory clause in Article 26 of the ICCPR, see especially Nowak supra note 5, pp. 597-634, C. Edelenbos, The Human Rights Committee’s Jurisprudence under Article 26 of the ICCPR: The Hidden Revolution, in: G. Alfredsson, J. Grimheden, B. G. Ramcharan, A. De Zayas (eds.), International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Möller, Martinus Nijhoff, The Hague-Boston-London: 2001, pp. 123-127;E . W. Vierdag, The Concept of Discrimination in International Law. Martinus Nijhoff, The Hague: 1973, pp. 120-127. 47 See A. de Zayas, J. Th. Möller, T. Opsahl, Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee, 28 German Yearbook of International Law 9 (1985), p. 59. 48 Until 1 November 1998, the entry into force of Protocol 11 of the ECHR, there were two judicial organs – the European Commission on Human Rights, and the European Court of Human Rights. 49 ECtHR, Abdulaziz, Cabales and Balkandali v. The United Kingdom (App. Nos. 9214/80, 9473/81, 9474/81), 28 May 1985. Similarly to Shirin Aumeeruddy-Cziffra,this case is also unique and novel. It was the first example of a substantive examination into a complaint by aliens under Article 14, and one of the first cases in which the Court found a violation of Article 14 see( Edel supra note 11, p. 12). 50 ECtHR, Abdulaziz, Cabales and Balkandali v. The United Kingdom, para. 23. 51 For more information on the origins and the legislation history of these provisions and the background of the case, see J. Bhabha, S. Shutter, Women’s Movement. Women under Immigration, Nationality and Refugee Law, Trentham Books, Stoke-on-Trent: 1994, pp. 55-76. Family Reunification Regulations and Women... 93 to establishing family life in their own or their husbands’ home countries or that there were special reasons why that could not be expected of them”,52 held that Article 8, when taken alone, had not been violated. On the other hand, it unanimously found a violation of Article 14, taken together with Article 8. It is worthwhile reconstructing the way in which the analysis with regard to the sex discrimination claim was conducted by the Court. The Court observed that it was not disputed that under immigration law it was easier for men to obtain permission for their spouses to enter or remain in the UK than for women.53 The Government argued that the difference in treatment was primarily justified “by the need to protect the domestic labour market at a time of high unemployment” and invoked statistics that “men were more likely to seek work than women, with the result that male immigrants would have a greater impact than female immigrants on the said market.”54 In the Court’s opinion those arguments were not convincing,55 especially in the light of formerly made observations that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention.56 It seems that in the light of the above-quoted final sentence57 it is now difficult to imagine a regulation concerning family reunification which would, in a direct (open) way, distinguish between the legal situation of women and men and at the same time be regarded as compatible with the Convention. Similarly to the case of Shirin Aumeer- uddy-Cziffra, one should totally agree with the Court’s decision regarding discrimination on the grounds of sex. There have been no other cases considered on the merits in which sex discrimination claims were raised. However, the European Commission on Human Rights declared two applications where such claims were raised as inadmissible. In both cases sex discrimination claims were put forward in the context of polygamous marriages and the rejection of permission to enter the United Kingdom for a second wife, in addition to

52 ECtHR, Abdulaziz, Cabales and Balkandali v. The United Kingdom, para. 68. 53 Ibidem, para. 74. 54 Ibidem, para. 75. Bhabha and Shutter suggested rather bluntly that a part of the concern in the United Kingdom which caused the different treatment was based on prejudices and stereotypes closely connected also to race, that is, on the one hand, the preferable treatment of male migrants was because of “white British men’s fears that ‘their women’ might become sexually associated with these ‘wifeless’ black men”; and on the other hand the restriction on entry of women’s spouses was designed to make it easier for “white British men to select their wives from whatever part of the world they wished” by preventing women “from bringing in husbands from abroad” – see Bhabha & Shutter, supra note 51, p. 56. 55 ECtHR, Abdulaziz, Cabales and Balkandali v. The United Kingdom, para. 79. 56 Ibidem, para. 78. 57 The expression “very weighty reasons” was used for the first time by the Court in this judgment see– Edel supra note 11, p. 131, and since then it has been used quite frequently by the Court in cases concerning not only sex discrimination, but also discrimination on other grounds. 94 Wojciech Burek the one already residing in the country. In case of R. B. v. The United Kingdom,58 the Commission concluded that the application is manifestly ill-founded (Article 35(3a) of the ECHR) and in the case of Khan v. The United Kingdom59 that the applicant hadn’t complied with the six-month rule (Article 35(1). In spite of the Commission’s conclusions, one can find interesting statements in both of the decisions. The principles applied by the Commission in the first case were summarised as follows: The family life circumstances in the present case do not outweigh the legitimate considerations of an immigration policy which rejects polygamy and is designed to maintain the United Kingdom’s cultural identity in this respect. (…) The relevant domestic immigration law permits, in principle, a British citizen or an alien settled in the United Kingdom, to be joined by his or her foreign spouse. The entitlement is granted to just the one spouse for the duration of the marriage. The discrimination of which the applicant complains flows essentially from the practice of polygamy by the applicant’s father, for which the respondent Government is not answerable under the Convention. In the latter case, the Commission recalled the argument submitted by the Govern- ment with approval: The Government recalls that bigamy is a criminal offence in the United Kingdom, and notes that the applicant has not in fact been prevented from marrying twice by United Kingdom law or the application of the Rules. They submit that a polyandrous woman would not be permitted to be joined by more than one husband, as a request for such leave to enter would be refused as not being conducive to the public good. I will come back and comment on these decisions later when discussing, in more detail, polygamous marriages in the context of family reunification regulations and women.

2. Who is Permitted to Join?

There are a wide variety of frequently occurring conditions in the national laws of different states which have to be met in order to be allowed to join a family member for family reunification reasons. Some of them are also confirmed in international regulations or by international courts and treaty monitoring bodies. This part will discuss those conditions which raise serious doubts in terms of the subject matter of this study.

2.1. Unmarried minor The requirement that a child who is mentioned in an application for family reunification must not be in a marital union can cause, at least in some cases, negative conse-

58 ECtHR, R. B. v. The United Kingdom(App. No. 19628/92), 29 June 1992, Admissibility decision. 59 ECtHR, Khan v. The United Kingdom (App. No. 23860/94), 29 November 1995, Admissibility decision. Family Reunification Regulations and Women... 95 quences for women. Such provisions, limiting the subjective scope of family reunification, can be found in, e.g. Directive 2003/86/EC (Article 4(1), ICRMW (Article 44(2), TheE uropean Convention on Legal Status of Migrant Workers (Article 12(1), and also in the internal law of many countries (e.g. Argentina, Brazil, Canada, China, Denmark, Guatemala, New Zealand, Norway, the United States, and Canada). The above-mentioned negative consequences can occur in the situation of formally married women who do not live with their husband, and who are not divorced and cannot get a divorce. Such situations take place most frequently in some of the Islamic States, in connection with the regulations on divorce stemming from shariah law, where the husband can unilaterally terminate a marriage by repudiation (talaq), while the wife may do so only in exceptional situations and only through a court proceeding (tatliq).60 The scale and gravity of the problems encountered by women in order to obtain a divorce in some Islamic States are confirmed by the number and nature of cases submitted to Western courts relating to divorce disputes among migrants. Indeed some of the courts, taking women’s interest into account and trying to reconcile secular and religious law, when granting a divorce on the basis of domestic law at the same time oblige the husband to perform talaq, so that such divorce will be recognised in the country of origin of the former spouses.61 One can imagine a situation whereby a young woman leaves her husband, and for whom reunification with her parents (e.g. with her mother) in another country may be her only chance for a dignified life, but who, in failing to meet the necessary conditions for family reunification, will be excluded from the country on account of being married. Such situations become even more dramatic when one bears in mind cases of forced marriages or child marriages. These issues directly give rise to another situation whereby the unmarried minor rule makes women the most likely to suffer, a situation which was recently presented and critically appraised by Mustasaari.62 Her argument is based on the case from the Swedish Migration Court of Appeal, where an application for family reunion with a father residing legally in Sweden was refused to his sixteen-year-

60 For more details on Islamic family law, see D. S. El Alami, D. Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, Kluwer Law International, London-The Hague-Boston: 1996. For more on Islamic divorce (from the Islamic perspective), see M. J. Maghniyyah, Divorce according to Five Schools of Islamic Law, Islamic Culture and Relations Organization, Tehran: 1997. 61 For an overview of practice of German courts, see K. Siehr, Divorce of Muslim Marriages in Secular Courts, in: J.-P. Ancel et al. (eds.), Vers de nouveaux équilibres entre ordres juridiques: Liber amicorum Hélène Gaudemet-Tallon, Dalloz, Paris: 2008, pp. 811-813; M. Rohe, Recognition and Institutionalization of Islam in Germany; in: M.-C. Foblets, J.-F. Gaudreault-DesBiens, A. Dundes Renteln (eds.), Cultural Diversity and the Law. State Responses from Around the World, Bruylant, Bruxelles: 2010, pp. 153-156. For examples from the practice of Dutch courts, see T. Loenen, Family Law Issues in a Multicultural Setting: Abolishing or Reaffirming Sex as a Legally Relevant Category? A Human Rights Approach, 20(4) Netherlands Quarterly of Human Rights 423 (2002), pp. 423-424. For more on the recognition of talaq in European courts, see S. Rutten, Recognition of Divorce by Repudiation (talaq) in France, Germany and the Netherlands, 11(3) Maastricht Journal of European and Comparative Law 263 (2004). 62 See S. Mustasaari, The Married Child Belongs to No One. The Legal Recognition of Forced Marriages and Child Marriages in the Reuniting of Families, 26(3) Child and Family Law Quarterly 261 (2016). 96 Wojciech Burek old Iraqi daughter (and her one-year-old child), based on the fact that she was, under Iraqi law, in a valid marital union.63 In rejecting the application the Swedish court, relying on the mechanism of private international law, recognized the validity of her marriage, despite her claims that she was only fifteen when entering into it and never gave her consent to it. As Mustasaari demonstrated, this case was an example of “[t]he interplaying norms and tensions between migration law, family law and human rights law,” as well as private international law,64 which brings about many complex and sensitive legal problems. In my opinion however, despite sharing some of the concerns put forward by Mustasaari (including the rationale behind a restrictive application of the ordre public clause65 and the ambiguities in applying the principle of the best interest of a minor child to these kinds of cases), this case has to be considered in the light of the provisions of EU Directive 2003/86, which is the basis for the Swedish laws on aliens in this regard. An application of its Article 5(5) (the principle of the best interest of a minor child), the rationale of Article 4(5) (preventing forced marriages), and the guideline of Recital 5 of the Preamble (to “give effect to the provisions of this Directive without discrimination on the basis of sex”) to similar cases should result in decisions not to recognize such marriages and, in consequence, result in the compliance of such situations with the unmarried minor rule. Based on different facts, theE uropean Court of Human Rights in its recent judgment, Z.H. and R.H. v. Switzerland, stated that the ECHR “cannot be interpreted as imposing on any State party to the Convention an obligation to recognise a marriage, religious or otherwise, contracted by a 14 year old child.”66 I would argue that there should be an obligation not to recognise child marriages, except for exceptional circumstances. In any case, both of the above-mentioned situations are clear examples of the negative consequences for women of this frequent condition – the unmarried minor rule – attached to family reunification. Although written in neutral language from the strict point of view of sex, this condition also causes doubts when analysing it from the perspective of possible indirect discrimination,67 especially having in mind the fact that

63 MIG 2012:4. Kammarrätten i Stockholm, Migrationsöverdomstolen, available at (in Swedish): http://lifos.migrationsverket.se/dokument?documentAttachmentId=39376 (accessed 30 May 2017). 64 Mustasaari, supra note 62, at p. 262. 65 Numerous regulations of private international law (conflict of laws) contain public order (ordre public) clauses, pursuant to which a foreign law may not be applied if the application thereof would result in a contravention of the fundamental principles of legal order of the state. 66 ECtHR, Z.H. and R.H. v. Switzerland (App. No. 60119/12), 8 December 2015, para. 44. 67 The legal definition of indirect discrimination can be found inthe EU anti-discrimination directives (including, inter alia, Article 2b of the Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment between men and women in the access to and supply of goods and services – OJ [2004] L 373/37, which defines indirect discrimination as a situation: “where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”, pointing out that this concept was established and developed in EU law (previously community law). It will be hard to find a recognized exception from this definition in family reunification cases. For more on indirect discrimina- Family Reunification Regulations and Women... 97 those who are “put in particular disadvantage” in these kinds of situations will be probably be almost exclusively, if not exclusively, women. It is particularly striking that no such doubts were raised towards the regulation under EU law, where the idea of indirect discrimination is very well-developed. Recently, public consultations were carried out based on the European Commission’s “Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/EC),”68 but regrettably no similar concerns were submitted.69 While in the Swedish case private international law was applied in a liberal manner, meaning that a child marriage (and probably a forced marriage) was recognized, in the cases involving polygamous marriages and family reunification there is rather an opposite tendency. In both cases private international law is applied in a way so as to justify restrictions and protect the interest of the state and, as such, it may be said it is applied in isolation from the human rights perspective. This is crucial in the case of child and forced marriages, but perhaps less so when it comes to polygamous marriage. But nonetheless all of these three types of marriages are classic examples of the fact that, as Siehr rightly observed, different legal traditions clash the most often in family law.70 Hence when analyzing polygamous marriages below, some general observations on this issue also need to be made.

2.2. Polygamous marriage While the requirement of being unmarried, treated strictly in formal terms, may in some situations discriminate against women indirectly, the limitations concerning polygamy in the context of family reunification can be regarded even as a manifestation of direct discrimination on the grounds of sex. However, everything depends on what legal tradition or point of view will be adopted for analysis. Polygamous marriage is directly mentioned in EU Directive 2003/86/EC. Its Ar- ticle 4(4) states that “[i]n the event of a polygamous marriage, where the sponsor already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorise the family reunification of a further spouse.” And with regard to children of polygamous marriages, it provides: “[m]ember States may limit the family reunification of minor children of a further spouse and the sponsor.” On the national level, similar regulations have been adopted not only in the European states bound by the Directive, but also in, inter alia, the United Kingdom, Denmark, tion in EU law, see E. Ellis, P. Watson, EU Anti-discrimination law, Oxford University Press, Oxford: 2012, at pp. 148-156. 68 COM(2011) 735 final, Brussels 15 November 2011. 69 Website, with all the comments received, available at: http://ec.europa.eu/dgs/home-affairs/what-is- new/public-consultation/2012/consulting_0023_en.htm (accessed 30 May 2017). For an overview of the consultation process from the gender perspective, see E. Morris, Family Reunification and Integration Policy in the EU: Where Are the Women?, 16(3) Journal of International Migration and Integration 650 (2015), pp. 650-657. 70 Siehr, supra note 61, at p. 809. 98 Wojciech Burek

Norway, Turkey, Canada, and the United States. In the case of Norway there is even a practice of posting official information on family reunification, addressed to Islamic States, on the websites of several Norwegian embassies, stating clearly that forced and polygamous marriages are not recognized in the country and that in the case of a latter only one of the spouses is entitled to family reunification.71 Thus in these states polygamous marriages are not fully recognized for the purpose of deciding on family reunification applications. However, in some areas other than immigration law, foreign polygamous marriages are recognized (e.g. in some provinces and territories of Canada for the purposes of succession, spousal support rights and obligations, marital property division, etc.,72 and in Germany for the purposes of, inter alia, maintenance).73 Hence the states’ practice in this area is not consistent, although when analysing restrictions in regulations on family reunification with respect to polygamy (and also on forced marriages) from the point of view of Western legal tradition, they seem to be obvious and non-controversial. The internal law of countries belonging to the Western culture stands in clear contradiction to, e.g., regulations allowing polygamy. In the field of private international law, it seems that the ordre public clause should be taken into consideration in the event of possible reference, in the context of conflict of laws rules, to at least some family law regulations based onshariah .74 Appar- ently, however, this is not the case in at least some fields of law. Affirmation of a restrictive position towards not only polygamy, but also towards other peculiarities of some family law regulations based on shariah, can also be found in international law. Polygamy has been of interest to treaty monitoring bodies. Some specific institutions of traditional legal systems, such as shariah law, are definitely contrary to the human rights standards and as such violate international human rights law. The UN human rights treaty bodies have been involved in this issue, both within their general actions (e.g. the strong stance taken by the CEDAW Committee in its General Recommendation No. 21)75 and when considering periodic reports of state

71 See http://www.norway.org.pk/studywork/visaandresidence/visa/RESIDENCE-PERMIT/ Information_to _family_reunification_applicants/ (accessed 30 May 2017). 72 M. Bailey et al., Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada, Queen’s University Legal Studies Research Paper No. 07-12, 2006, pp. 9-16; available at: http:// ssrn.com/abstract=1023896 (accessed 30 May 2017). 73 M. Rohe, The Application of Islamic Family Law in German Courts and its Compatibility with German Public Policy, in: J. Basedow, N. Yassari (eds.), Iranian Family and Succession Laws and their Application in German Courts, Mohr Siebeck, Tübingen: 2004, pp. 27-28. 74 For a recent study on this topic from the comparative perspective, see N. Bernard-Maugiron, B. Dupret (eds.), Ordre public et droit musulman de la famille en Europe et en Afrique du Nord, Bruylant, Bruxelles: 2012. 75 “States parties’ reports also disclose that polygamy is practised in a number of countries. Polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions (…) of the Convention” – see supra note 11, para. 14. Family Reunification Regulations and Women... 99 parties.76 As was mentioned above, a similar position was taken – of particular importance to this work on family reunification – by the European Commission of Human Rights. In rejecting the applicants’ claims of discrimination in the case of R. B. v. The United Kingdom, the Commission suggested that the practice of polygamy as such is discriminatory, and not the UK’s restrictions on polygamous marriages. Also, the Eu- ropean Court of Human Rights (ECtHR) takes a particularly strict attitude towards shariah law in its jurisprudence. In Refah Partisi (The Welfare Party) and the others v. Turkey, the Court stated that the introduction of sharia, [is] difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention taken as a whole. It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to (…) its rules on the legal status of women.77 However, this does not change the fact that a substantial part of the world’s population lives in a culture which, to a large extent, takes a different approach to these issues. Therefore, when analysing the above-discussed regulations on family reunification from the perspective of, e.g., the Islamic legal tradition (for instance the rule that in the case of polygamous marriages only one wife can join her husband under family reunification rules), and also from the individual point of view (e.g. that of the second wife, who is refused permission to reunite with the family), one may consider them discriminating, or at least putting women in an especially unfavourable situation. The argument submitted by the UK government in another (above-mentioned) case on polygamous marriages with regard to family reunification (Khan v. The United Kingdom), i.e. that discrimination claims should be rejected because “a polyandrous woman would not be permitted to be joined by more than one husband” it is not convincing, since the practice of polyandry is extremely rare. While not unambiguously resolving these highly sensitive – not only legal, but also social and political – issues, when treating the question of full recognition of polygamous marriages (and other forms of marriage substantially different than those in the lex fori), one should pose a more general question, including in the context of family reunification regulations. It is one which has already been raised in the doctrine:T o what extent should one legal system accommodate different norms and values? It seems that in the context of family reunification regulations one can postulate a solution dubbed by some scholars “weak legal pluralism”78 or “limited accommodation.”79 Such a solu-

76 The RH C in its Concluding observations on the fourth periodic report by Cameroon observed: “The Committee reiterates its concern about the continuing existence of polygamy in the State party” (CCPR/C/CMR/CO/4, para. 9). 77 ECtHR, Refah Partisi (The Welfare Party) and the others v. Turkey (App. Nos. 41340/98, 41342/98, 41343/98, 41344/98), 31 July 2001, Chamber Judgment, para. 72. 78 Loenen, supra note 61, pp. 441-442. 79 P. Cumper, Multiculturalism, Human Rights and the Accommodation of Sharia Law, 14(1) Human Rights Law Review 31 (2014), pp. 45-56. 100 Wojciech Burek tion starts from the perspective of individuals and their rights and, as such permits, in “exceptional, individual cases on the basis of the specific circumstances of the case”,80 a derogation from general rules and recognition of different norms and values. With regard to polygamous marriages and family reunification, similar suggestions have been made, in the Canadian context, based on “the hardship of left-behind wives” and the argument that “[i]mmigration policy should not further harm women who may already suffer disadvantages from being in a polygamous marriage.”81 However, it is easier to postulate than it is to introduce concrete proposals into practice, especially at the level of administrative proceedings. It seems that room for discretion and flexibility is possible only, if at all, at the level of a court proceeding. Nev- ertheless, at the same time there are occasionally seemingly obvious cases where such an approach should be taken, such as in the Canadian case Awwad v. Canada (Minister of Citizenship & Immigration) where, surprisingly, the court confirmed the rejection of a family reunification application of the second wife and mother of three children living with the husband and the first wife in Canada.82 The possible outcomes of this case-by-case approach undermine predictability and may be even provocative when it comes to the situation of granting recognition to discriminatory legal traditions, but as Fournier concluded in her research on how the Western courts deal with Islamic mahr,83 if we want to accommodate the specific situation of the individuals concerned, “courts ought to pay attention to distributional consequences rather than to doctrinal consistency.”84

2.3. Age limits With regard to another quite common condition required for a successful family reunification application, i.e. age limits for spouses, the only claims that can be made in terms of discrimination are that it brings more disadvantages to women than to men. Article 4(5) of EU Directive 2003/86/EC states that: “[i]n order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her.”85 Indeed, increasing the minimum marriageable age requirement, and also adopting the same age for women and men, is perceived as one of the

80 Loenen, supra note 61, p. 441. 81 Bailey at al., supra note 72, p. 13-16. 82 1999 CanLII 7392 (F.C.J.), available at: http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/39593/ index.do (accessed 30 May 2017). 83 Mandatory payment or promise of future payment by the groom (or his family) to the bride at the time of marriage. 84 See P. Fournier, Muslim Marriage in Western Courts. Lost in Transplantation, Ashgate, Farnham and Burlington: 2010, p. 151. 85 This condition was recently confirmed by the Court of Justice of the European Union (see CJEU, C-338/13 Marjan Noorzia (2014)). Family Reunification Regulations and Women... 101 ways of combating not only child marriages, but also forced marriages.86 The issues relating to giving consent to marriage and minimum age have been the subject of international legislation (the 1962 UN Convention on Consent to Marriage, Minimum Age of Marriage, and Registration of Marriages).87 In Article 16 of the UDHR there is a clear statement that both spouses have to be „of full age” and „marriage shall be entered into only with the free and full consent of the intending spouses.” Differentiation in the marriageable age for women and men, a low minimum age for women, and also the practice of forced and arranged marriages have also been, similarly to polygamous marriages, of interest to treaty monitoring bodies (e.g. the HRC General Comment No. 28 Equality of Rights Between Men and Women (Art. 3),88 when considering the periodic reports of state parties,89 and to the CRC Committee in its concluding observations90). However, one should differentiate between the situations of 1) requiring, with regard to family reunification, the same minimum age as in the receiving state; and 2) increasing it, as allowed by the EU Directive. Several Member States bound by the Directive did the latter (e.g. Austria, Belgium, Lithuania, The Netherlands). Den- mark, not bound by the Directive,91 introduced an age requirement of 24 in 2002. It seems that raising the minimum marriage age whereby one may be entitled to family reunification is a clear manifestation of a restrictive approach to family reunification and a desire to limit the inflow of immigrants.92 This approach is different from the motives referred to in Article 4(5) of Directive 2003/86/EC. Hence the CEDAW Committee, for instance, when considering Denmark’s reports with respect to the fulfilment of its obligations resulting from CEDAW Convention, consistently criticises

86 This line of argumentation was put forth, inter alia, by France when in 2006 it amended its Civil Code by equalizing the age limit (18) for men and women – see B. Clark, C. Richards, The Prevention and Prohibition of Forced Marriages. A Comparative Approach, 57(3) International and Comparative Law Quarterly 501 (2008), pp. 507-509. 87 Convention on Consent to Marriage, Minimum Age of Marriage, and Registration of Marriages (adopted 7 November 1962, entered into force 9 December 1964) 521 UNTS 231. 88 “Men and women have the right to enter into marriage only with their free and full consent (…) That age should be set by the State on the basis of equal criteria for men and women. These criteria should ensure women’s capacity to make an informed and unforced decision” (CCPR/C/21/Rev.1/Add.10 (2000), para. 23). 89 The RH C in its Concluding observations on fourth periodic report by Cameroon observed that: “The Committee reiterates its concern about the continuing existence of polygamy in the State party. The Committee is also concerned about reported cases of marriage of girls as young as 12 years old and regrets that the State party has not taken measures to address the different ages for marriage between women and men, set at 15 and 18 years respectively” (CCPR/C/CMR/CO/4, para. 9). 90 See e.g. Concluding observations on the fourth periodic report of Yemen, CRC/C/YEM/CO/4, paras. 48-49. 91 See Directive Preamble Recital 18. 92 Similar motives are behind changes in the definition of “dependent child” in Canada, effective 11 August 2014. Under new regulations a dependent child must be under 19 years of age, instead of the previous limit of under 22. See Canada Gazette, Vol. 148, No. 13, 18 June 2014, available at: http://canadaga- zette.gc.ca/rp-pr/p2/2014/2014-06-18/html/sor-dors133-eng.php (accessed 30 May 2017). 102 Wojciech Burek the establishment of the minimum marriage age for family reunification at 24 years of age, criticising Danish arguments that it is supposed to prevent forced marriages or arranged marriages.93 One should agree with the concerns put forward with respect to these provisions. It seems that it is difficult to defend a higher minimum age in the context of aliens applying for family reunification than the age stipulated by Dan- ish law (and that of other countries) for concluding marriage in their own country. Such differentiation raises concerns about unjustified discrimination on the grounds of nationality and/or place of residence. The CEDAW Committee, in its recommendations, rightly suggests making those limits equal, arguing that the regulations under discussion put women in an especially unfavourable situation, and at the same time, there is no evidence that it fulfils its role, i.e. preventing forced and arranged marriages.94 Statistics in many of the migrant-receiving countries support the position taken by the CEDAW Committee. For instance, the German statistics on third-country nationals from the years 1998-2010 shows that “based on the immigration of spouses, 26.8 per cent of the visas were issued to men and 73.2 per cent to women.”95 Even though in Germany the age limit is 18, the data can raise other doubts about Germany’s family reunification regulations, for example the requirement that the spouse who wishes to join his or her spouse residing in Germany have a basic knowledge of the German language, confirmed by pre-entry language tests. This condition was unsuccessfully challenged before The Federal Administrative Tribunal (Bundesverwaltungsgerich) on the basis of, inter alia, its non-compliance with Article 8 of the ECHR.96 In addition, the above- quoted report presents many other negative consequences of this rule on the individuals concerned, especially with respect to illiterate or low educated persons (e.g. furthering a long period of separation, costly language courses, unavailability of language courses in some rural areas, etc.)97 which, in the light of the statistics, are felt predominantly by women. Coming back to age limits and German data on number of visas issued to women, the latter clearly reflects a general trend, seen in many countries, that those who are at a higher risk of being affected by this regulation are (once again) left-behind wives.

93 See, inter alia, Concluding observations (2002), UN Doc A/57/38(SUPP), paras. 345-346; Concluding observations (2006), CEDAW/C/DEN/CO/6, paras. 30-31; Concluding observations (2009), CEDAW/C/DEN/CO/7, paras. 11, paras. 40-41. 94 CEDAW/C/DEN/CO/7, para. 41. 95 K. Triebl, Ch. Klindworth, Family Reunification: A Barrier or Facilitator of Integration? German Country Report, Johann Daniel Lawaetz-Stiftung, Hamburg: 2012, p. 45. 96 BVerwG 1 C 8.09: 2010, available at (in German): http://www.bverwg.de/entscheidungen/entsc- heidung.php?ent=300310U1C8.09.0 (accessed 30 May 2017). For more on this case see K. Groenendijk, Are Third-Country Nationals Protected by the Union Law Prohibition of Discrimination on the Ground of Nationality?, in: K. Barwig, R. Dobbelstein (eds.), Den Fremden akzeptieren: Festschrift für Gisbert Brinkmann, Nomos, Baden-Baden: 2012, pp. 131-141. 97 Triebl & Klindworth, supra note 95, at p. 47. Family Reunification Regulations and Women... 103

3. Procedural and Administrative Aspects

From among the different procedural and administrative aspects of family reunification and their effects on women, two require closer consideration, i.e. waiting periods and one of the most common reasons for the termination of residence rights – the end of a relationship. Both of these seem to disproportionately affect women.

3.1. Waiting periods The requirement of a “waiting period”, i.e. a minimum period of residence by the sponsor in the receiving country before submitting an application for family reunification, is clearly permissible under Article 12(1) of the European Convention on Legal Status of Migrant Workers, which provides that “[e]ach Contracting Party may make the giving of authorisation conditional upon a waiting period which shall not exceed twelve months”, and also under Article 8 of Directive 2003/86/EC: “Member States may require the sponsor to have stayed lawfully in their territory for a period not exceeding two years, before having his/her family members join him/her.” In addition, under certain conditions the waiting period can be even longer, up to three years. Similar regulations can be found at the level of national law in many states (including in some state parties to the European Migrant Workers Convention and EU countries), and as such are a subject of concern to treaty monitoring bodies. For example the HRC, within its procedure of considering state reports concerning the fulfilment of obligations resulting from the ICCPR, pointed out in its concluding observations of 1997 to Switzerland’s report that an 18- month waiting period for a foreign worker is much too long and brings about unjustified separation from one’s family.98 Criticism regarding the long waiting period permissible under Directive 2003/86/EC appeared already during the works on the Directive, as well as immediately after its adoption.99 This provision of the Directive, together with its Ar- ticle 4(1) and 4(5), were challenged by the European Parliament as incompatible with Articles 8 and 14 of the ECHR, but the CJEU dismissed these allegations. With regard to Article 8, the European Parliament based its claims on the observation that it “significantly restricts the right to family reunification” and “authorizes the Member States to retain measures which are disproportionate in relation to the balance that should exist between the competing interests.”100 No claims based on gender discrimination were raised. Although prolonged separation from the spouses and children causes negative effects to persons on both sides of the barricade,101 the situation of the family left be-

98 CCPR/C/79/Add.70, para. 18. 99 Cholewinski, supra note 34, p. 286, J. Apap, S. Carrera, Towards a Proactive Immigration Policy for the EU?. CEPS Working Documents No. 198, December 2003, p. 11, available at: http://aei.pitt. edu/1815/1/WD198.pdf (accessed 30 May 2017). 100 CJEU, C-540/03 Parliament v. Council (2006), para. 91. 101 In this context ILO experts observed that: “Prolonged separation and isolation of family members lead to hardships and stress affecting both the migrants and the dependants left behind, which may give rise to social, psychological and health problems, and even affect workers’ productivity. Therefore, family reunification should be facilitated.E ven in the case of seasonal and special-purpose workers countries should 104 Wojciech Burek hind is worse in many cases. This is especially true in the case of refugees and asylum seekers, because of threats to their safety as well as that of their families in their home countries. In many cases, the situation of family members of economic migrants is not good either. Even though international migration has become much more balanced in terms of sex over time,102 still in many situations the traditional pattern is followed that a male family member leaves the country first. More detailed research and statistics would probably be required to defend the claim that waiting periods can result in indirect discrimination on the grounds of sex, but definitely there are situations, indirectly confirmed (e.g. by the above-mentioned German statistics), where prolonged separation caused by waiting periods is putting women at a particular disadvantage compared with men. Additionally, the negative consequences of waiting periods are worsened by delays in proceedings on the applications for family reunification, which are quite common in a number of states103 and which are criticized by both treaty monitoring bodies and NGOs. The RH C, for example, paid particular attention to this issue in concluding its observations of 2008 to France’s report,104 as did the CRC Committee in concluding its observations of 2005 to Sweden’s report with regard to recognizing refugees’ applications.105 An alarming report was published in 2009 by Human Rights First concerning, inter alia, the lengthiness and suspension of proceedings on applications for family reunification in the United States.106 In the wake of current migration patterns some countries (e.g. Germany) are even considering suspending family reunification procedures for some migrants for a period of two years.107 In the above-quoted concluding observations of the HRC to France’s report, doubts were also expressed regarding “the procedure that allows DNA testing as a way to establish filiation for the purpose of family reunification.”108 DNA testing is not only costly, but also time-consuming, which causes further delays.109 favourably consider allowing family migration or reunification” -R eport of the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration, Geneva, 21-25 April 1997, Annex I, para 6.1, available at http://www.actrav.itcilo.org/actrav-english/telearn/global/ilo/seura/ilomigrp.htm (accessed 30 May 2017). 102 The World’s Women 2010. Trends and Statistics, Report of the UN Department of Economic and Social Affairs, p. 13. 103 And this despite the direct provisions in some international instruments which require the expeditious handling of procedures (e.g. Article 5(4) of EU Directive 2003/86/EC, Article 10(1) of the CRC). 104 CCPR/C/FRA/CO/4, para. 21. 105 CRC/C/15/Add.248, para. 41. 106 Denial and Delay: The Impact of the Immigration Law’s Terrorism Bars on Asylum Seekers and Refugees in the United States, Human Rights First Report, November 2009, available at: http://www.humanrights- first.org/wp-content/uploads/pdf/RPP-DenialandDelay-FULL-111009-web.pdfpp (accessed 30 May 2017), pp. 61-62. 107 Announced by Germany at the beginning of 2016. 108 CCPR/C/FRA/CO/4, para 21. For a critical analysis of French legislation on DNA testing in family reunification procedures, see R. Hajbandeh, ‘France, Love it or Leave it’: New French Law Restricts Family Reunification, 27(2) Wisconsin International Law Journal 335 (2009), pp. 343-353. 109 DNA testing procedure is used in other countries as well; for instance in Canada, where it causes similar controversies and is subject to criticism from NGOs. See Canadian Council for Refugees, DNA Family Reunification Regulations and Women... 105

3.2. The end of the relationship as a cause for terminating residence rights According to the national laws of many states, when an application for family reunification is successful, the individuals involved are granted only non-autonomous residence permits. Therefore, when the relationship ends the authorities of the given states are entitled to withdraw a residence permit and ask the person involved to leave the country. The same phenomenon is directly confirmed in, inter alia, EU Directive 2003/86/EC (Article 16(1). In connection with this, Article 15 of the Directive provides that autonomous residence permits can be obtained after “no later than five years of residence”. This means that most of theE uropean Union member states enjoy a wide margin of appreciation in this regard. On the one hand, at least with regard to spouses or unmarried partners, these kinds of provisions seem to be fair, as they are in line with frequently used measures to combat and prevent sham marriages. Nevertheless, strict implementation of the extended periods of non-autonomous residence in the receiving state may bring about negative consequences for spouses or unmarried partners recently admitted under family reunification regulations (or even those recently admitted in cases of 4 or 5-year residence requirements). Despite the fact that the CJEU case of Gattoussi110 concerned the deportation of a male (a Tunisian husband of a German wife was asked to leave Germany when their relationship ended),111 one can argue that, in at least in some of the countries, this kind of regulation disproportionately affects women. This is a reality, for example, in the case of many “import brides” in the Scandinavian countries. The phenomenon of local men bringing wives in from, inter alia, Thailand,R ussia or the Philippines is a controversial topic in countries such as Norway or Sweden, and have been the subject of different studies and reports.112 Unfortunately, in many cases, there is another side of the story – separation, which is followed, in some cases, by assault and sexual abuse.113 Adopting an extended waiting period for spouses and unmarried partners before they are entitled

Tests: A Barrier to Speedy Family Reunification, October 2011, available at: https://ccrweb.ca/files/dna- tests.pdf (accessed 30 may 2017). For a comparison of regulations on DNA testing in three EU countries (Austria, Finland, Germany), see T. Heinemann, U. Naue, A.-M. Tapaninen, Verifying the Family? A Comparison of DNA Analysis for Family Reunification in Three European Countries (Austria, Finland and Germany), 15(2) European Journal of Migration and Law 183 (2013), pp. 183-202. The authors of the latter article stated that at least 20 countries have incorporated DNA testing into their family reunification procedures, p. 184. 110 CJEU, C-97/05 Gattoussi (2006). 111 This case was considered under provisions of the 1995E uro-Mediterranean Agreement (OJ 1998 L 97/1) and the main dispute focused on the fact that German authorities issued to Mr. Gattoussi not only a temporary and non-autonomous residence, but also a work permit of indefinite duration. The ruling was based on the principle of protecting legitimate expectations and of legal certainty (para 42). 112 See, inter alia, K. Haandrikman, Binational Marrieges in Sweden: Is there an EU Effect?, 20(2) Population, Space and Place 177 (2004), pp. 177-199, and reference therein. 113 See an overview of the report prepared by the National Association of Women’s and Young Women’s Shelters (Riksorganisationen för kvinnojourer och tjejjourer – ROKS), available at: http://www.thelocal. se/20110217/32110 (accessed 30 May 2017). 106 Wojciech Burek to autonomous residence permits and maintaining a strict approach when implementing this rule causes further distress and suffering to women in this situation.

Conclusions

Before reaching to conclusions it’s worthwhile to at least try to briefly answer the question: Why were such restrictive – from the perspective of women – policies on family reunification introduced? As pointed out by many scholars, on their face migration policies are generally considered as gender-neutral. For example, Morris rightly observed that “migration policy in the EU is still, for the most part, consider to be gender-neutral” and “even most migration non-governmental organizations are relatively quiet on the importance of gender-sensitive measures in EU-level migration policymaking.”114 The same is true in the case of other international organizations and their regulations, as well as at the national level. Without viewing them from a gender perspective, we end up with migration policies shaped mostly by prejudices and stereotypes about, inter alia, desirable roles of men and women and concepts of family, marriage and parenthood.115 This can negatively influence not only the legal position of migrant women but also, as de Hart in her recent study showed, the legal position of migrant fathers, who in many cases are, because of dominant ideologies about fatherhood, vulnerable in the context of their rights to family life.116 Another significant reason for restrictions in the field of reunification are security concerns. The current refugee crisis and ongoing threat of terrorism influence the security policies of many countries and consequently shape migration polices into very restrictive ones. Other possible answers relate to some more of the more detailed issues discussed above. Regulations on polygamous marriages and the unmarried child rule were designed to fight against discrimination of Muslim women, including forced and child marriages. Other measures, like exams and tests aimed at check for sham marriages or paternity tests, are considered to be, inter alia, a tool to fight trafficking of human beings under the cover of family reunification.117 Paradoxically however, as was shown in case of polygamous marriages and the unmarried child rule, in many situations these measures violate women’s rights and can be perceived by them as discriminatory. Thus by way of conclusion I would like to make following observations. Despite the obvious benefits for persons concerned and the progress in integration into a new

114 Morris, supra note 69, at p. 640. 115 See S. Bonjour, B. de Hart, A proper wife, a proper marriage: Constructions of ‘us’ and ‘them’ in Dutch family migration policy, 20(1) European Journal of Women’s Studies 61 (2013), p. 62. 116 See B. de Hart, Superdads: Migrant Fathers’ Right to Family Life before the European Court of Human Rights, 18(4) Men and Masculinities 448 (2015). 117 Some countries introduced special measures to combat misuse of family reunification by traffick- ers (e.g. using false declarations of parenthood). One of them is Finland – see the study produced by the European Migration Group – Misuse of the Right to Family Reunification, June 2012, at p. 22, available at: http://bit.ly/2svpAzJ (accessed 30 May 2017). Family Reunification Regulations and Women... 107 state, as well as the existence of international legal regulations which either refer directly to family reunification or from which one may derive the principles regulating family reunification, one cannot speak today about the existence of any precise and enforceable human right to family reunification under international law. Certainly this is one of the reasons, apart from the efforts to reduce immigration, for the existence of a quite restrictive approach towards family reunification on the part of numerous migrant-receiving countries. It seems that the last couple of years have brought about even more restrictive practices, as proven, e.g., by the above-quoted stricter regulations in Denmark and Canada, as well as the lengthened proceedings in the United States and the lack of progress in ICRMW ratification. The current (2015-2016) migration crisis in Europe is strengthening these restrictive practices. In addition, their position on the European continent is reinforced by the quite conservative positions taken by the European Court of Human Rights. When a restrictive approach is adopted, there is less or even no room for a case-by- case approach or for considering the special circumstances of a given case. Even if the contemporary regulations on family reunification are neutral on their face, the practices regarding their enforcement may bring about negative consequences predominantly (but not exclusively) for women118 in both possible situations, i.e. when women are the sponsors of immigration or the bearers of the consequences of male migration. While the early cases on family reunification decided at the international level (in the 1980s) dealt with sex discrimination claims raised towards regulations which were discriminatory in a direct and open way, today it is difficult to find a regulation on family reunification which would, in the same direct way, differentiate between the situation of women and men, as such discrimination would violate the principle of gender equality present in international law and in the national laws of many countries. The position of the ECtHR is of particular importance here. In the case of Abudlaziz, Cabales and Bal- kandali, the Court stated that “very weighty reasons” should be put forward to justify different treatment on the ground of sex. Hence today the regulations on family reunification, both those at the level of international law and EU law, as well as those in the domestic law of most countries, are neutral on their face from the point of view of sex. This, however, does not mean – as has been pointed out above - that some of them cannot result, in certain situations, in particularly unfavourable consequences for women (age limits, waiting periods, the end of a relationship as a cause for termination of a residence permit) or, at the same time, even indirect discrimination on the grounds of sex (the unmarried minor rule)

118 The authors of a comparative study on family reunification in six EU Member States (Austria, Germany, Ireland, the Netherlands, Portugal and the United Kingdom) similarly conclude, albeit in a more general (i.e. not only women’s) context „[i]n all Member States, however, not only legislation determines the extent to which migrants can exercise a right to family reunification. The way requirements are applied or assessed and procedures are organized are equally important for their possibilities to bring their families” – see T. Strik, B. de Hart, E. Nissen, Family Reunification: a Barrier or Facilitator of Integration? A Comparative Study, Wolf Legal Publishers, Nijmegen: 2013, p. 109. 108 Wojciech Burek or direct discrimination when conducting analyses from different legal traditions or looking from the perspective of the women involved (polygamous marriages). The last two examples relate to the most controversial issues connected with family reunification regulations and women, i.e. situations wherein there is a conflict between different legal traditions (e.g., forced, arranged, and polygamous marriages; lower marriage ages for women). In this context one should encourage an approach - despite the obvious problems with its implementation – based on “weak legal pluralism” or “limited accommodation”. This would allow, in certain circumstances, for the accommodation of differing legal norms and values. Other more general recommendations are in line with the above-mentioned approach. A more flexible approach is needed; one based on the specific circumstances of a given case and awareness of the gender impact of particular regulations. This kind of approach can be introduced, even without making significant amendments, at the court level. In administrative proceedings, however, there is little or no room for the desired discretion and flexibility when considering family reunification applications.119 Hence it seems desirable to consider amendments to at least three of the above-analyzed frequently occurring regulations, i.e. the unmarried minor rule (by excluding situations where the marital union does not, in fact, exist, as well as child marriages), waiting periods (by abolishing or at least significantly shortening them), and the end of relationship as a cause for termination of a residence permit (by shortening the period required for granting autonomous residence permits and introducing favourable treatment of former wives who are victims of violence). Another condition for family reunification which ought to be changed is the age limit for spouses or unmarried couples, which should not be higher than the marriageable age in a given state. Even a very short overview of these recommendations suggests that the EU Direc- tive on Family Reunification is a striking example of a transnational instrument which ought to be amended, although at the same time it must be acknowledged that such amendment seems impossible in the current political and factual conditions. If however such an amendment could be put in place, it would bring about changes in most of the EU member states, including many migrant-receiving ones. With regard to other states, the international courts and treaty monitoring bodies should be encouraged to take stronger positions.

119 A recent study shows that cumbersome bureaucracy may cause a lot of damage to the reunification process, even in rather obvious cases - see A. Haile, The Scandal of Refugee Family Reunification, 56(1) Boston College Law Review 273 (2015). XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016f 2016 PL ISSN 0554-498X

Athanasios Yupsanis*

CULTURAL AUTONOMY FOR MINORITIES IN THE BALTIC STATES, UKRAINE, AND THE RUSSIAN FEDERATION: A DEAD LETTER

Abstract: One of the direct results of the collapse of the former USSR was the emergence of centrifugal ethnic minority nationalisms, which posed a threat to the stability of the then newly-established (or restored in the case of the Baltic democracies) states. In this context, one of the mechanisms introduced by the leading elites in several countries (e.g. Latvia, Ukraine, Esto- nia, the Russian Federation) in order to address the minority diversity issue, ensure stability, and gain international support (in the case of the Baltic states) was a cultural autonomy scheme, which has its origins in the ideas of the late 19th century Austro-Marxist school of thought. This model was successfully implemented once in the past, in inter-war Estonia. However, its modern application, even in cases when it does not just remain on paper (such as in Latvia and Ukraine), seems to serve other motives (e.g. a restitutional framework in Estonia, control of the non-titular minority elites in Russia) rather than the satisfaction of minority cultural needs, thus making cultural autonomy a dead letter.

Keywords: cultural autonomy, Estonia, Latvia, minority rights, Russian Federation, Ukraine

Introduction: The cultural autonomy idea

Following the demise of communism, a minority cultural autonomy scheme made its entrance into the national legal orders of several countries of post-communist central and southeastern Europe (e.g. Hungary, Slovenia, Croatia, Serbia) as well as of the former USSR (Latvia, Ukraine, Estonia, the Russian Federation), as a possible device for managing their ethnocultural diversity, satisfying some minority cultural needs, and neutralizing ethnic threats of destabilization. In this context, two things must

* LL.M., Ph.D. in International Law, Adjunct Lecturer at the School of Political Sciences of Aristotle University of Thessaloniki G( reece); contact: [email protected]. 1 D. J. Smith, Non-Territorial Autonomy and Political Community in Contemporary Central and Eastern Europe, 12 Journal on Ethnopolitics and Minority Issues in Europe 27 (2013), pp. 27-28, 31-32. 110 Athanasios Yupsanis be made clear from the outset. Firstly, positive international law does not recognize a right to autonomy for minorities. For example, the Council’s of Europe Framework Convention for the Protection of National Minorities (FCNM), which constitutes the only legally binding multilateral instrument focused on minorities, does not provide for the right of persons belonging to minorities to autonomy, whether territorial or non-territorial/cultural. Still, its Advisory Committee (ACFC) examines the cultural autonomy provisions in those State-Parties which have introduced such regimes in their national legal orders on their own initiative. It offers insightful comments on them, using as a point of reference the national legislation and, where appropriate, norms of general international human and minority rights law (on the issues of citizenship, minority participation in the decision making process, etc.). Since all the examined countries are parties to the Convention and make references in their reports to their cultural autonomy provisions, the ACFC’s opinions on them yield a valuable insight into their actual state of (non)implementation. Secondly, while a uniform interpretation and application of the notion of cultural autonomy is lacking, two main approaches to the theoretical understanding of the concept exist, which do not contradict each other and even partly overlap. The first one conceives cultural autonomy as a general principle, according to which an ethnic group enjoys (or should enjoy) a certain degree of freedom in handling its cultural affairs (through various forms of multiculturalism), while the second interprets it as a specific form of a self-governing ethnicity-based organization, where ethnic groups are organized “as vertically integrated corporations based on individual membership with elected governing bodies which bear certain public functions and authorities” and may be entitled to public resources. The latter model, more elaborate and comprehensive, traces its origins to the late 19th century ideas of the eminent Austro-Marxist thinkers Karl Renner and Otto Bauer, who wanted to preserve both the unity of the multinational working class of the Habsburg Monarchy – which was being divided along ethnic lines – and the territorial integrity of the Empire, which was threatened by rival secessionist nationalisms. It was aimed at satisfying, on a non- territorial basis, the cultural aspirations of the different co-inhabiting nationalities by separating them from the state and from each other. According to their proposal, each

See Y. Dinstein, Autonomy Regimes and International Law, 56 Villanova Law Review 437 (2011), pp. 438-442; M. Weller, Towards a General Comment on Self-Determination and Autonomy, UN Doc. E/ CN/Sub.2/AC.5/2005/WP.5, 25 May 2005, p. 16; M. N. Shaw, Peoples, Territorialism and Boundaries, 3 European Journal of International Law 478 (1997), pp. 488-489. A. Vacca, A Comparative Approach Between the Council of Europe Treaties and the European Union Framework in the Legal Protection of Minority Languages, 53 Revista de Llengua i Dret 111 (2010), p. 115. G. Frunda (Rapporteur), An Additional Protocol to the European Convention on Human Rights on National Minorities, Committee on Legal Affairs and HumanR ights, AS/Jur(2011)46, 8 November 2011, para. 58. A. Osipov, Non-Territorial Autonomy and International Law, 13 International Community Law Review 393 (2011), p. 396. W. Kymlicka, Renner and the Accommodation of Sub-State Nationalisms, in: E. Nimni (ed.), National- Cultural Autonomy and its Contemporary Critics, Routledge [Taylor & Francis e-Library], London and New York: 2005, p. 117. Cultural Autonomy for Minorities... 111 nationality could enjoy its distinct cultural identity in a de-nationalised territorial state, leaving the central government, structured according to power-sharing mechanisms, free to focus on more “nationally neutral” issues (economics, foreign policy etc.) of general concern to all citizens. This plan would be materialized through the following steps. Firstly, each adult individual, regardless of his/her place of residence in the territory of the state, would have to declare his/her ethnic affiliation (the personality principle) through opting exclusively for one nationality in special national registers. The registers would then serve as a basis for the election of national councils, which would function as self-governing public law corporations with an entrenched legal personality and endowed with the authority to levy taxes on their members and take binding decisions over the cultural issues within their jurisdiction (educational matters, use of minority languages, preservation of cultural institutions etc.).10 By thus allowing the nationalities to determine their cultural destiny, the suggestion was that the competition between the different ethnocultural groups would be ameliorated and the potential conflict between their interests and those of the State would be removed.11 These ideas, however, were never wholly implemented in the Habsburg Empire,12 since its collapse put an end to all such schemes. Interestingly though, they found their way into inter- war Estonia, which proved to be, for unique historical reasons, a fertile soil for them to flourish and be successfully put into practice through the 1925 Cultural Autonomy Law. Also surprisingly, they were revived in the post-Soviet era, forming the basis on one hand for relevant discussions among Russian intellectuals and politicians,13 which led to the adoption of the 1996 Russian Federation’s Law on National and Cultural Autonomy, and on the other for the enactment of the 1993 Estonian Law on Cultural Autonomy, which as written is closely reminiscent of the 1925 law and thus embodies certain elements of the Austro-Marxists’ proposal.

J.-M. Arraiza, The Management of Linguistic Diversity Through Territorial and Non-Territorial Autonomy, 8 Europäische Journal für Minderheitenfragen 7 (2015), p. 14. S. C. Roach, Minority Rights and the Dialectics of the Nation: Otto Bauer’s Theory of the Nation and Its Contributions to Multicultural Theory and Globalization, 6 Human Rights Review 91 (2004), p. 99. S. Barbieri, Millet System and National-Cultural Autonomy: A Distance Dialogue, Centre for Advanced Study (CAS) Working Paper Series 6, Sofia: 2014, p. 22. 10 W. A. Kemp, The Politics of Culture: The Limits of National Cultural Autonomy, in: E. Nimni (ed.), National-Cultural Autonomy and its Contemporary Critics, Routledge [Taylor & Francis e-Library], London and New York: 2005, pp. 177-178. 11 M. Wong, Reclaiming Identity: Rethinking Non-Territorial Autonomy, 12 Journal on Ethnopolitics and Minority Issues in Europe 56 (2013), p. 59. 12 Only a few very limited forms of cultural autonomy arrangements took place, in Moravia, Bukovina and Galicia, see B. Kuzmany, Habsburg Austria: Experiments in Non-Territorial Autonomy, 15 Ethnopolitics 43 (2015), pp. 43-65. 13 A. Osipov, Official and Academic Discourse on Ethnicity and Nationalism in Post-Soviet Russia, in: K. Cordell (ed.), Ethnicity and Democratisation in the New Europe, Routledge [Taylor and Francis e- Library], London and New York: 2006, p. 175; B. Bowring, Minorities’ Protection in Russia: Is There a ‘Communist Legacy?’, in: K. Cordell, T. Aggarin, A. Osipov (eds.), Institutional Legacies of Communism: Changes and Continuities in Minority Protection, Routledge, London and New York: 2013, p. 54. 112 Athanasios Yupsanis

The present analysis is based on an examination of the relevant constitutional and ordinary national law provisions on cultural autonomy, respective state practices, and the subsequent opinions of the ACFC on them. Its aim is to show that the cultural autonomy regimes, where they really function to some degree and are not simply proclaimed on paper (as in the cases of Latvia and Ukraine), are not only weaker than the original Austro-Marxist model which supposedly inspired them, but also hardly work in practice because the main motive behind their introduction seems to be the pursuit of more or less hidden political interests rather than the satisfaction of minority cultural needs. This is not to say that the original cultural autonomy scheme is free of deficiencies, but nevertheless it could still offer some better protection to minorities if it were properly implemented, and it will be shown that this is what the ACFC implies in its opinions. To this end a description of the successful inter-war Estonian model is first given in order to provide a clear picture of how a viable settlement could be structured. Next the flaws and inadequacies of today’s regimes are explored. Finally, a better implementation policy is suggested through granting to the minority cultural councils/autonomies a clear public legal status and clear competencies, as well as decisive authority in their field and sustainable financial backing.

1. An inter-war model case: The Estonian Cultural Autonomy Law of 5 February 1925

In the inter-war period, a “remarkable step”14 on non-territorial cultural autonomy took place in Estonia where, according to the 1934 census, the population amounted to 1,126,413 inhabitants, of whom 992,520 were ethnic Estonians, thus constituting the dominant majority (88.1%), and the remaining part consisted mainly of five ethnic groups: Russians numbering 92,656 individuals (8.2%); Germans 16,346 (1.5%); Swedes 7,641 (0.7%); Latvians 5,435 (0.5%) and Jews 4,434 (0.4%).15 In this ethnic panorama a unique in the world at the time combination of different yet interconnected factors created fertile soul for the ideas of Renner and Bauer to flourish. Firstly, the Estonians’ political maturity, grew out of their own negative historical experiences of oppression during their subjection to Russian and German rule, as well as their knowledge of what it was like to be a small nation, which made them more tolerant towards ethnic differences; the small proportion of minorities withinE stonia’s entire population, which eased perceptions of them as a threat to national security; the removal of political (and to a certain degree economic) powers from the autonomy bodies, which made cultural autonomy sufficiently harmless from the standpoint of the majority; the persistence of the German minority in advancing the issue of cultural autonomy, coupled

14 M. Mazower, Minorities and the League of Nations in Interwar Europe, 126 Daedalus 47 (1997), p. 54. 15 K. Katus, A. Puur, L. Sakkeus, Development of National Minorities – Estonian Republic up to 1944, 1(51/46) Trames – A Journal of the Humanities and Social Sciences 221 (1997), pp. 223-224. Cultural Autonomy for Minorities... 113 with the strong and systematic support of some influential Estonian politicians; the external pressures from the League of Nations and Germany; the government’s need to ensure minorities’ backing in the event of a communist social insurrection; and finally the improved relations between the ethnic Estonians and the German minority.16 All these factors provided sufficient impetus for the introduction in the first stage of Article 21 in the 1920 Constitution [re-stated in Art. 20 of the 1937 Constitution], guaranteeing to members of national minorities the right to create autonomous institutions for furtherance of their own cultural interests, and the adoption in the second phase of the Law on Cultural Autonomy for National Minorities of 5 February 1925 (the Law).17 The Law enabledE stonian citizens of Russian, German, and Swedish ethnic origin, as well as citizens who belonged to other nationalities numbering at least 3000 persons (such as the Jewish community) to establish public law cultural corporations.18 Its general framework was grounded on two basic premises of the Austro-Marxists’ school of thought – that every citizen could freely determine his/her own ethnic identity and voluntarily register or not (the personality principle) in special minority lists in order to vote for a minority cultural council;19 and that the correlative rights were conferred to those self-identified minority members irrespective of their place of residence (the non-territoriality principle).20 The first step in the establishment of a cultural self-government was the submission of a corresponding application by the minority representatives or associations to the Estonian Government. Attached to the application was a list of Estonian citizens belonging to the concerned minority, which was created according to the demographic data made available to the applying association. Any citizen over 18 years old had the right to request the enrollment of his/her name to the list, as well as for its deletion from it (the right of self-proclamation). If the number of the enlisted individuals was at least one half of the persons belonging to the applying nationality, according to the most recent census held, then elections could take place, which were considered valid if at least one half of the enlisted persons participated in them.21 The Cultural Council established in such a fashion could then decide, by a two-thirds vote, to create a Cultural Self-Government.22

16 For an excellent presentation of all these factors, see K. Alenius, The Birth of Cultural Autonomy in Estonia: How, Why and for Whom?, 38 Journal of Baltic Studies 445 (2007), pp. 446, 458. 17 K. Aun, The Cultural Autonomy of National Minorities in Estonia, 1 Yearbook of the Estonian Learned Society in America 26 (1951-1953), pp. 29-30. 18 S. A. Woods, Ethnicity and Nationalism in Contemporary Estonia, in: C. Williams, T. D. Sfikas (eds.), Ethnicity and Nationalism in Russia, the CIS and the Baltic States, Ashgate, Aldershot: 1999, p. 269. 19 A. Kasekamp, A History of the Baltic States, Palgrave Macmillan: 2010, p. 118. 20 C. K. Zoltani, F. Koszorus, Group Rights Defuse Tensions, 20 The Fletcher Forum of World Affairs (1996), p. 137. 21 D. J. Smith, The Revival of Cultural Autonomy in Certain Countries of Eastern Europe: Were Lessons Drawn from the Interwar Period?, in: Venice Commission (ed.), The Participation of Minorities in Public Life (Science and Technique of Democracy No. 45, Council of Europe Publishing: 2011), pp. 90-91. 22 D. J. Smith, Retracing Estonia’s Russians: Mikhail Kurchinskii and Interwar Autonomy, 27 Nationalities Papers 455 (1999), pp. 456-457. 114 Athanasios Yupsanis

The Cultural Council, which sat in the capital and was composed of between 20 and 60 members, was the highest legislative body and was endowed with, inter alia, the power to issue by-laws and, within the sphere of the Cultural Self-Government’s competences, to adopt a budget, impose taxes upon its members, elect the members of the Cultural Self-Government and supervise its activities. The Cultural Self-Government was the executive organ, consisting of at least three members empowered with a three- year mandate to represent the minority in dealings with the Estonian Government, with third parties, and in the courts.23 The Law stated that the Cultural Self-Govern- ment was also responsible for: (a) [the] organization, administration, and supervision of public and private schools in the mother tongue of the corresponding national minority; and (b) [f]urtherance of all other cultural aims of the corresponding national minority and administration of institutions and undertakings created for and serving the mentioned purposes.24 In this context the Cultural Self-Government set up and operated public and private educational institutions (up to the level of university), organized and administered other cultural institutions, such as theatres, libraries, museums etc.,25 managed its proper- ties, employed its personnel, passed by-laws, and imposed taxes upon its members. At the provincial level, the Cultural Self-Government was assisted in its work by cultural committees, which supervised and organized the cultural life of the minorities.26 Finally, regarding the most crucial issue of all, the funding of the Cultural Self–Gov- ernment, it was provided that it would consist of (a) school costs paid by the state; (b) school costs paid by the local government (municipalities and cities); (c) state and local government support for implementing other cultural tasks; (d) fees collected from members of the minority, as specified by the cultural council, but confirmed by the Government of the Republic as proposed by the Ministries of Finance and Education; (e) gifts, collections, sales income and the like.27 Regarding the Law’s beneficiaries, it should be noted that since it was based on the non-territorial principle its provisions were particularly important for groups with a dispersed settlement, such as the Germans, the Latvians, and the Jews, while groups with a compact settlement, such as the Russians and the Swedes, could satisfy their cultural needs through the elected district councils, as the Estonian legislation gave the

23 A. Eide, in co-operation with V. Greni, M. Lundberg, Cultural Autonomy: Concept, Content, History and Role in the World Order, in: M. Suksi (ed.), Autonomy: Applications and Implications, Kluwer Law International, The Hague / London / Boston: 1998, p. 254. 24 H. C. E. Zacharias, State and Community in Estonia, XI Servant of India (1928), p. 329. 25 T. Parming, The Jewish Community and Inter-Ethnic Relations in Estonia, 1918-1940, 10 Journal of Baltic Studies 241 (1979), p. 246. 26 M. Housden, Cultural Autonomy in Estonia: One of History’s “Curiosities?”, in: D. J. Smith (ed.), The Baltic States and Their Region – New Europe or Old?, Rodopi, Amsterdam / New York: 2005, p. 233. 27 Á. Németh, Á. Léphaft, Ethnic Structure and Minority Rights in the Interwar and Post-Soviet Estonia and Latvia, p. 2, available at: http://kv.sapientia.ro/data/miremir_pres/nemeth_lephaft.pdf, (accessed 30 May 2017). Cultural Autonomy for Minorities... 115 opportunity to national minorities which constituted a majority at the community level to manage their educational and other social issues through local government admin- istrations.28 Thus, of the three most significant minorities at the time in Estonia, the Russians and the Swedes, who were explicitly (along with the Germans) mentioned as the potential beneficiaries of the Law, did not seek to set up cultural councils, “mainly because they were geographically concentrated and could therefore use local self-government institutions”29 to protect and promote their cultural rights. The Germans (1925) and the Jews (1926), who were both, with the exception of the urban centres of Tallinn and Tartu, widely scattered over the country and intermingled with the ethnic Estonian majority and thus were not able to use the local (territorial) self-government institutions, took advantage of the Law and established cultural councils.30 Despite the fact that the cultural autonomy bodies did not enjoy actual political decision-making powers and their financial resources were relatively weak,31 they seemed to function quite satisfactorily.32 For example, it is argued that the German Cultural Self-Government operated very efficiently, uniting the minority under one public law organization with a scope of competence equal to that of the organs of a local government.33 This success caused other minorities in Europe which aspired to the status of cultural autonomy to look with interest at the Estonian Law.34 It was indeed proposed as a model in connection with the aim of constitutional restoration in Poland.35 The Estonian Law was cited in the world literature “as an example and a model of the most far-reaching and liberal solution [limited though to small and scattered minorities] of the nationality problem”36 and “as the most successful application of the Habsburgian

28 Under the Estonian Constitution of 1920 in areas where minority members constituted more than 50% of the population, the relevant minority language could serve as a second administrative language. Furthermore, according to the Law on Education, in districts where thirty or more minority pupils existed, the local authorities had to provide teaching in the relevant minority language. See D. J. Smith, Non- Territorial Cultural Autonomy as a Baltic Contribution to Europe Between the Wars, in: D. J. Smith (ed.), The Baltic States and Their Region – New Europe or Old?, Rodopi, Amsterdam / New York: 2005, pp. 212, 224. 29 A. Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries, Yale University Press, New York: 1984, pp. 183-184. 30 J. Coakley, National Minorities and the Government of Divided Societies: A Comparative Analysis of Some European Evidence, 18 European Journal of Political Research 437 (1990), p. 445. 31 Alenius, supra note 16, p. 445. 32 See D. J. Smith, Estonia: A Model for Inter-War Europe?, 15 Ethnopolitics 89 (2016), pp. 89-104. 33 P. Lossowski, National Minorities in the Baltic States 1919-1940, 25 Acta Poloniae Historica 87 (1972), p. 96. 34 V. Ciobanu, The Relations Between Transylvanian Saxons and Baltic Germans During the 1920s, 1 Revista Română pentru Studii Baltice şi Nordice 87 (2009), p. 93. 35 N. Messerschmidt, Minority Policy and Sociology in German and Polish Democracy in the Interwar Period, 39 Rocznik Lubuski 53 (2013), p. 60. 36 Lossowski, supra note 33, p. 96; As Eide et al. also note, the Estonian Law “was hailed in the international literature as a particularly elaborate and constructive example of cultural autonomy”, supra note 23, p. 253; Alenius characterized it as “an exceptionally friendly gesture toward national minorities when compared with other countries in the period between the world wars”, supra note 16, p. 445; Katus et al. note that Estonia became the first government to receive, for its minority policy, a certificate from 116 Athanasios Yupsanis concept of cultural autonomy.”37 Renner himself called it “the most perfect attempt at instituting a constitutional self-government for nationalities in a multinational state.”38 However, the Soviet invasion and occupation of Estonia in 1940 signaled the end of its existence.39 After that, and during the Cold War period, minority rights were considered more or less a “taboo” topic,40 not to be touched upon. It took several decades then before cultural autonomy schemes, alone or in combination with some form of territorial arrangement, reappeared in the legislation of several ex-communist states of the former USSR, with promising expectations but disappointing results.

2. Modern attempts at cultural autonomy

2.1. Latvia Latvia was the first state at the end of the Cold War to incorporate – even before the restitution of its sovereignty – the notion of cultural autonomy in its national legislation.41 Specifically, the Law On the Unrestricted Development and Right to Cultural Autonomy of Latvia’s Nationalities and Ethnic Groups of 19 March 1991 proclaimed that it was “adopted to guarantee to all nationalities and ethnic groups in the Republic of Latvia the rights to cultural autonomy and self-administration of their culture.”42 This statement corresponded partly to the need on the part of Latvia to present a highly sensitive democratic and multicultural profile to the international community in order to gain its recognition and acceptance, and partly to the need to address the rich multiethnic composition of the country’s population. According to the recent statistical data of 2012 the population of Latvia is estimated to consist of 2,217,053 inhabitants, of whom 1,319,552 (59.5%) are ethnic Latvians, 603,125 (27.2%) Russians, 77,423 (3.5%) Belo- the World Organization of Jews noting the honorary record of Estonia in the Golden Book of the Jewish National Fund, supra note 15, p. 240. 37 J. Hackmann, Werner Hasselblatt on Cultural Autonomy: A Forgotten Manuscript, in: M. Housden, D. J. Smith (eds.), Forgotten Pages in Baltic History – Diversity and Inclusion, Rodopi, Amsterdam / New York: 2011, p. 147. 38 As quoted in A. Lijphart, Consociation and Federation: Conceptual and Empirical Links, 12 Canadian Journal of Political Science 499 (1979), p. 508. 39 A. Verschik, On the Lexicon of Estonian Yiddish, 85 Studia Orientalia 55 (1999), p. 56. 40 H.-J. Heintze, The Significance of the Thematic Recommendations of the OSCE High Commissioner on National Minorities, in: IFSH (ed.), OSCE Yearbook 2012, Nomos Verlag, Baden-Baden: 2013, p. 249. 41 Latvia was historically familiar with the notion of cultural autonomy, as it had adopted a [more limited than the Estonian one] non-territorial cultural autonomy arrangement on minority education during the interwar period, more precisely from the date of its independence in 1918 until the coup of 1934, when minority rights were curtailed, see M. Germane, The Fifth Element - Expanding the Quadratic Nexus?, 24 Ethnopolitics 1 (2013), p. 6. 42 Second Report submitted by Latvia pursuant to Article 25, paragraph 2 of the Framework Convention for the Protection of National Minorities, ACFC/SR/II(2012)002, Strasbourg, 3 September 2012, para. 68. The law is available in English at: http://www.humanrights.lv/doc/latlik/ethnic.htm (accessed 30 May 2017). Cultural Autonomy for Minorities... 117 russians, 54,041 (2.4%) Ukrainians, 50,498 (2.3%) Poles, 28,946 (1.3%) Lithuanians, 9,418 (0.4%) Jews and 8,482 (0.4%) Roma.43 The country’s ethnological map also includes even smaller ethnic groups, such as the Germans (3,042) and Estonians (2,007), each constituting 0.1% of the total population according to the 2011 census.44 The Law guarantees, inter alia, to permanent residents – and not just to citizens45 as it is the case in the Ukraine, Estonia and the Russian Federation – the rights to establish their own national societies, associations and organizations (Article 5),46 to observe their own national traditions, and to use their traditional symbols and commemorate their national holidays (Article 8). Furthermore, government institutions should promote the creation of material conditions for the development of the education, language and culture of the nationalities and ethnic groups within the country’s territory (Article 10),47 while national societies, associations and organizations have the right to use government mass media resources and distribute national periodicals and literature (Article 13).48 With respect to the right to ethnic self-identification, the Law states in its second article that each 16 year-old citizen or person who has neither Latvian nor another state’s citizenship and who is a permanent resident of the country has the right to establish or to restore ethnicity records in personal documents, according to his or her national consciousness and ethnic origin, and according the procedure set out in the Law. At the same time however, the Law has been criticized for being merely a general declaration which lacks clarity and provides no mechanisms for its implementation.49 In this context the ACFC has pointed out, in its opinion of 9 October 2008, that “according to most of its interlocutors, the 1991 law is outdated and has proved ineffective.”50 This observation justifies the position of scholars that the 1991 Law “is inadequate for present demands and therefore it is necessary to adopt a new law and regulations on its implementation.”51

43 A. Dimitrovs, Equality Law in Latvia: Current Trends and Challenges, 9 The Equal Rights Review 11 (2012), p. 15. 44 See Statistical Office of Estonia, Central Statistical Bureau of Latvia and Statistics Lithuania, 2011 Population and Housing Censuses in Estonia, Latvia and Lithuania, 2015, p. 24, available at: http://www. csb.gov.lv/sites/default/files/2011_population_and_housing_censuses_in_estonia_latvia_and_lithuania. pdf (accessed 30 May 2017). 45 H.-J. Uibopuu, The Baltic States and its Minorities, XL Annuaire Europeen / European Yearbook (1992), p. 50. 46 Report submitted by Latvia pursuant to Article 25, paragraph 2 of the Framework Convention for the Protection of National Minorities, ACFC/SR (2006)001, Strasbourg, 11 October 2006, para. 23. 47 B. Cilevičs, Language Legislation in the Baltic States, in: M. Koenig, P. de Guchteneire (eds.), Democracy and Human Rights in Multicultural Societies, UNESCO & Ashgate Publishing Limited: 2007, p. 170. 48 Third Periodic Report of States Parties due in 1997: Addendum; Latvia, UN Doc. CERD/C/309/ Add.1, 25 March 1999, para. 76. 49 A. Osipov, Non-Territorial Autonomy During and After Communism: In the Wrong or Right Place?, 12 Journal on Ethnopolitics and Minority Issues in Europe 7 (2013), p. 12. 50 ACFC, Opinion on Latvia, adopted on 9 October 2008, ACFC/OP/I (2008)002, Strasbourg, 30 March 2011, para. 55. 51 A. Jansons, Ethnopolitics in Latvia: Ethnopolitical Activities of State Institutions and Non-governmental Organizations and Their Influence on the Social Integration Process, Ethnicity Studies 124 (2003), p. 127, available at: http://ces.lt/en/wp-content/uploads/2012/03/EtSt_Jansons_2003.pdf (accessed 30 May 2017). 118 Athanasios Yupsanis

2.2. Ukraine Following Latvia, on 25 June 1992 the Ukraine adopted its Law on National Mi- norities (Law No. 2494-2),52 which also refers explicitly in Article 6 to the notion of cultural autonomy in part for similar reasons as the Latvian Law, i.e. to present its democratic credentials and at the same time address the country’s cultural diversity, as Ukraine too is a multiethnic state. Specifically, according to the 2001 census the population of Ukraine amounted to 48.2 million inhabitants, of whom the main ethnic groups are: Ukrainians 37,541,700 (77.8%), Russians 8,334.100 (17.3%), Belorus- sians 275,800 (0.6%), Moldovans 258,600 (0.5%), Crimean Tatars 248,200 (0.5%), Bulgarians 204,600 (0.4%), Hungarians 156,600 (0.3%), Romanians 151,000 (0.3%), Poles 144,100 (0.3%) and Jews 103,600 (0.2%).53 In this polyethnic context, Article 6 stipulates that “[t]he state guarantees to all national minorities [who according to Article 3 must be citizens of the state] the rights to national-cultural autonomy.”54 This includes the rights to communicate and study in one’s native language or to study one’s native language in state and communal educational institutions or within national cultural associations, to develop national and cultural traditions, to use national symbols, to celebrate national holidays, to confess one’s own religion, to enjoy the needs in scientific, artistic and other works, mass-media, to create national cultural and educational institutions, and to carry out any other activities that do not contradict the legislation.55 As some scholars have pointed put, although the provisions on “national-cultural auto nomy” were encouraging, the law did not contain a definition of such national cultural autonomy,56 nor the procedures and conditions to secure its existence.57 The ACFC on its part initially commented on the law’s norms in its first opinion of 1 March 2002, stating that it is formulated in an extremely general fashion and that “the content and reach of this concept [of cultural autonomy] would merit being defined and developed in more detail.”58 The Committee came back, in its second opinion of 30 May 2008,

52 The text is available in English at: http://www.minelres.lv/NationalLegislation/Ukraine/Ukraine_ Minorities_English.htm (accessed 30 May 2017). 53 M. Toth, Hungarian National Minority of Ukraine: Legal and Practical Aspects of Realization of Minority Rights, 1 Acta Universitatis Sapientiae Legal Studies 143 (2012), p. 144. 54 Report submitted by Ukraine pursuant to Article 25, paragraph 2 of the Framework Convention for the Protection of National Minorities, received on 2 November 1999, ACFC/SR (1999)014, 2 November 1999, p. 13. 55 Second Report submitted by Ukraine pursuant to Article 25, paragraph 2 of the Framework Convention for the Protection of National Minorities, ACFC/SR/II (2006)003, Strasbourg, 8 June 2006, p. 11. 56 B. Bowring, Language Policy in Ukraine. International Standards and Obligations, and Ukrainian Law and Legislation, in: J. Besters-Dilger (ed.), Language Policy and the Language Situation in Ukraine – Analysis and Recommendations, Peter Lang, Frankfurt: 2009, p. 85. 57 M. Antonovych, The Rights of National Minorities in Ukraine: An Introduction, in P. Cumber, S. Wheatley (eds.), Minority Rights in the ‘New Europe’, Martinus Nijhoff Publishers, The Hague: 1999, p. 253. 58 ACFC, Opinion on Ukraine, ACFC/C/INF/OP/I (2002)010, Strasbourg, 1 March 2002, para. 32. Cultural Autonomy for Minorities... 119 and noted that “there has been no progress concerning the further development of the notion of cultural autonomy for national minorities (…) [t]herefore a more coherent and ambitious framework to support minority cultural initiatives remains to be developed.”59 Thus Osipov’s assertion that references to ‘cultural autonomy’ in Latvia and Ukraine “bear no direct meaning in practice”60 seems quite justified. 2.3. Estonia The next country to adopt legislation on minority cultural autonomy was Estonia. Being in a state of euphoria about the restitution of sovereignty in this reborn Baltic country, respect for minority rights was seen as an inseparable part of the whole transition process to democracy. In this context, Article 50 of the new 1992 Constitution granted to national minorities “the right, in the interests of national culture, to establish self-governing agencies under the conditions and pursuant to the procedure provided by the National Minority Cultural Autonomy Act.”61 In order to realize this constitutional guarantee, the National Minorities Cultural Autonomy Act was enacted on 26 October 1993.62 Since the Act was written in a way to make it closely reminiscent of the highly-appraised 1925 Law,63 its adoption was met with positive comments, if not enthusiasm, by several scholars and European officials, as a promising device for dealing with minority issues in Central and Eastern Europe. Article 2.1 of the 1993 Act defines the notion of cultural autonomy as “the right of persons belonging to a national minority to establish cultural autonomy bodies in order to perform culture-related rights granted to them by the Constitution.”64 More generally, the Estonian government has also described cultural autonomy as “an additional opportunity for cultural self-determination.”65 According to Article 1, the national minorities entitled to the aforementioned right are: citizens [emphasis added] of Estonia who reside on the territory of Estonia; maintain longstanding, firm and lasting ties withE stonia; are distinct from Estonians on the basis

59 ACFC, Second Opinion on Ukraine, adopted on 30 May 2008, ACFC/OP/II (2008)004, Strasbourg, 30 March 2011, paras. 19, 88, 91. 60 Osipov, supra note 49, p. 14. 61 Initial Reports submitted by States Parties under Articles 16 and 17 of the Covenant-Addendum: Estonia, UN Doc. E/1990/5/Add. 51, 2 October 2001, para. 755; Fifth Periodic Reports of States Parties due in 2000: Addendum: Estonia, UN Doc. CERD/C/373/Add.2, 30 May 2002, para. 379. 62 Almost all the articles of the Law are reproduced in the firstR eport of Estonia to the Human Rights Committee (HRC) of the International Covenant on Civil and Political Rights (ICCPR), see Consideration of Reports submitted by States Parties under Article 40 of the Covenant-Initial Reports of States Parties due in 1993: Addendum: Estonia, UN Doc. CCPR/C/81/Add.5, 7 October 1994, paras. 237-239. 63 Fourth Periodic Report of States Parties due in 1998: Addendum: Estonia, UN Doc. CERD/ C/329/Add.2, 5 July 1999, para. 66. 64 M. Suksi, Non-Territorial Autonomy: The Meaning of ‘(Non-)Territoriality, in: T. H. Malloy, F. Palermo (eds.), Minority Accommodation Through Territorial and Non-Territorial Autonomy,Oxford University Press, Oxford: 2015, p. 93. 65 Fourth Report submitted by Estonia pursuant to Article 25, paragraph 2 of the Framework Convention for the Protection of National Minorities, ACFC/SR/IV(2014)008, Strasbourg, 2 May 2014, p. 10. 120 Athanasios Yupsanis

of their ethnic, cultural, religious or linguistic characteristics; and are motivated by a concern to preserve together their cultural traditions, their religion or their language which constitute the basis of their common identity.66 The second paragraph of the same Article indeed names – similarly as in the 1925 Law – as beneficiaries of the right the “historical” minorities, i.e. the Germans, Rus- sians, Swedes and Jews67 (who were not explicitly mentioned in the 1925 Law), as well as any other national minority numbering over 3,000 persons.68 In order for cultural autonomy to be established, the first procedural precondition is the preparation of a minority nationality list – as was also required in the 1925 Law – by the minority cultural associations (Article 7) based on individual applications (Article 8.3) containing an expression of individual self-proclamation (right to self- identification). These nationality lists form the basis for the polling lists (Article 15) of minority members eligible to vote in direct and uniform elections by secret voting (Article 12) for the election of a Cultural Council, which is the directing body of the cultural autonomy (Article 11.1). Elections are considered valid if over half of the minority members entered in the polling lists participated therein (Article 19). Following such elections, the elected Council determines, by majority vote, inter alia the procedure for the formation and authority of the town/local cultural councils, which in turn can establish, according to Article 11.2, the formation, rights and obligations of the cultural self-administration bodies and the rules of procedure of the directing organs of the cultural autonomy bodies (Article 22).69 With respect to the main objectives of such cultural autonomy bodies, Article 5 provides that these include, inter alia, the organization of studies in the mother tongue and supervision of the use of assets prescribed for that purpose, the right to set up foundations and grant awards for the promotion of minority culture and education, and organize cultural events and establish institutions of cultural administration.70 The latter, as Article 24 clarifies, include educational institutions where studies are conducted in the

66 R. Sannik, Estonia: Integration of Stateless Individuals and Third-Country Residents, in: V. Novotný (ed.), Opening the Door? Immigration and Integration in the European Union (3rd ed.), Centre for European Studies, Brussels: 2012, p. 120. 67 Report of the Special Rapporteur on Contemporary Reforms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène, Addendum: Estonia, UN Doc. A/HRC/7/19/ Add.2, 17 March 2008, para. 34. 68 A. Aidarov, W. Drechsler, Estonian Russification of Non-Russian Ethnic Minorities in Estonia? A Policy Analysis, 17(67/62) Trames – A Journal of the Humanities and Social Sciences 103 (2013), p. 113; Tenth and Eleven Reports Periodic Reports of States Parties due in 2012: Estonia, UN Doc. CERD/C/EST/10- 11, 23 May 2013, para. 254. 69 See D. J. Smith, National - Cultural Autonomy in Contemporary Estonia, in, L. Salat, S. Constantin, A. Osipov, I. G. Székely (eds.), Autonomy Arrangements Around the World: A Collection of Well and Lesser Known Cases, Cluj-Napoca: 2014, p. 309. 70 A. Semjonov, A Combined Approach to Autonomy: Estonian Experience, in Z. A. Skurbaty (ed.) Beyond a One-Dimensional State: An Emerging Right to Autonomy?, Martinus Nijhoff Publishers, Leiden / Boston: 2005, p. 422. Cultural Autonomy for Minorities... 121 national (minority) language, enterprises and publishing houses of national (minority) culture, and social welfare institutions. One cannot but notice that while the Act refers to educational institutions, it does not cover such issues as organization, administration and supervision of public and private schools in the mother tongue in detail, as the 1925 Law did.71 Finally, considering the crucial issue of funding resources, Article 27 states that these will come from a) allocations from the state budget according to the law; b) the local self- government budgets; c) cultural self-administration contributions; d) membership support and donations; and e) support from foreign organizations.72 In all cases supervision over the assets is exercised by state bodies (Art. 27, para. 2), which means that the State retains the ultimate control over the cultural autonomy bodies’ allocation of assets. So far, minorities have taken very little advantage of the opportunities offered by the law. Only two cultural autonomy bodies have been established by two very small minorities, the Ingrian Finns (2004) and the Swedes (2007).73 To some extent this can be explained by the fact that the “Rules for the Election of the Cultural Council of a National Minority” were adopted in May 2003, i.e. ten years after the Act’s enactment(!).74 Another serious flaw related to the non-implementation of the Law is its restrictive definition of the term “national minority”, which excludes non-citizens,75 the majority of whom are ethnic Russians. With respect to the Russian minority, which constitutes the bulk of the country’s minority population, one should note that its stance towards the Act is by no means uniform.76 Indeed some of its leaders, as well as several Russian intellectuals, have voiced strong objections to using the Law because cultural autonomy is not built on the territorial principle, thus it is not viewed as relevant to the needs of the territorially-compact Russian-speaking population of the northeast. Also, they reject the “dual taxation” inherent in the cultural autonomy arrangement, and they argue that as taxpayers Russians should have automatic access to state-funded education in the Russian language.77 On the other hand there also exists

71 V. Poleshchuk, Russian National Cultural Autonomy in Estonia, in: T. H. Malloy, A. Osipov, B. Vizi (eds.), Managing Diversity Through Non-Territorial Autonomy – Assessing Advantages, Deficiencies and Risks, Oxford University Press, Oxford: 2015, p. 240. 72 UN Doc. CCPR/C/81.Add.5, supra note 62, p. 40, para. 239 (k). 73 Eighth and Ninth Periodic Reports due in 2008: Estonia, CERD/C/EST/8-9, 3 November 2009, para. 321. 74 B. Dobos, The Role of Elections in Minority Contexts: The Hungarian Case, in: E. Nimni, A. Osipov, D. J. Smith (eds.), The Challenge of Non-Territorial Autonomy: Theory and Practice, Peter Lang, Berlin: 2013, p. 166. 75 European Commission for Democracy Through Law (Venice Commission), Report on Non-Citizens and Minority Rights, Study No 294/2004, CDL-AD(2007)001, 18 January 2007, para. 43. 76 J. Šalčiūtė, The Impact of EU Conditionality on the Civil Rights of National Minorities in the Baltic States, Master Thesis in International andE uropean Relations, Linköping University, 2014, p. 34, available at: https://www.iei.liu.se/stat/utbildning-grundniva/uppsatser/april-2014-master/1.555605/Masterthesis. J.Salciute.2014-1.pdf (accessed 30 May 2017). 77 D. J. Smith, Minority Rights, Multiculturalism and EU Enlargement: The Case of Estonia, 1 Journal on Ethnopolitics and Minority Issues in Europe 1 (2003), pp. 32-33. 122 Athanasios Yupsanis a faction of the Russian minority which has taken a more positive stance by applying in 2006 for the establishment of a cultural autonomy body. However, as the Estonia government itself has stated in its third Report to the ACFC: [t]he Ministry of Culture denied [on 26 February 2009] the application on the recommendation of the major Russian cultural organizations in Estonia and of the commission established to process the applications, for the reason that this particular organization did not represent the Russian community and did not have the support of the other Russian societies.78 Subsequent applications made by other ethnic Russian associations in 2009 and 2011 met the same fate.79 As a natural consequence of the aforementioned situation, the initial euphoria in the 1990s caused by the adoption of the Act began to gradually subside, while at the same time several elements of the Act came under heavy attack. Firstly, it was observed that the citizenship criterion contained in the Act’s definition of the notion of “national minority” – in combination with the stipulation of Article 6 providing that while foreigners residing in Estonia may participate in the activities of minorities’ cultural and educational institutions, they cannot vote or be elected or appointed to leadership positions in the institutions of cultural self-government80 – excludes non-citizens, which constituted a considerable part of the ethnic Russian population in the 1990s (and still constitutes a significant part), thus excluding them from the leading positions of the cultural autonomy bodies.81 Secondly, it was pointed out that the numerical threshold of 3,000 registered persons means in practice that only the Ukrainians, Belorussians, Finns and Tatars, besides the minorities stated in the Law, have a chance to qualify for this right if they can register 3,000 Estonian citizens from amongst their ranks.82 Third- ly, emphasis has been put on the fact that the cultural councils are not granted a clear legal status, and certainly not that of a public administration body, and are thus unable to carry out their functions as stated by the law.83 It should be noted that even the Es-

78 ThirdR eport submitted by Estonia pursuant to Article 25, paragraph 2 of the Framework Convention for the Protection of National Minorities, ACFC/SR/III(2010)006, Strasbourg, 13 April 2010, p. 8. 79 See M. Lagerspetz, Cultural Autonomy of National Minorities in Estonia: The Erosion of a Promise, 45 Journal of Baltic Studies 457 (2014), pp. 467-468. 80 K. Shoraka, Human Rights and Minority Rights in the European Union, Routledge, London and New York: 2010, p. 176. 81 A. Verstichel, Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities: Review of the Opinions of the Advisory Committee Regarding Article 15 of the Council of Europe Framework Convention for the Protection of National Minorities, 2 European Yearbook of Minority Issues 156 (2002/2003), p. 181. 82 P. Järve, Re-Independent Estonia, in S. Smooha, P. Järve (eds.) The Fate of Ethnic Democracy in Post- Communist Europe, Local Government and Public Service Reform Initiative – Open Society Institute: 2005, p. 72. 83 Lagerspetz, supra note 79, pp. 458, 470; Osipov, supra note 49, p. 11, who observes that the cultural councils are not deemed legal persons and as such they cannot establish other institutions, hold property, and have no guarantees of public funding. Cultural Autonomy for Minorities... 123 tonian government itself has confessed that “the current Act does not clearly stipulate that cultural autonomy bodies constitute a legal person”, acknowledging that “[t]his is a significant obstacle for the already established cultural councils of national minorities (Ingrian-Finnish, Swedish) in implementing the objectives of the Act.”84 Fourthly, the Law gives no actual guarantees of financial support from the government.85 In contrast to the interwar period, where complete funding of elementary education in the minority language was guaranteed through stable state subsidies, current funding is dependent on ad hoc decisions of the state administration following explicit requests.86 This deficiency has led scholars like Semjonov to claim that “the law by no means -af fords any opportunity for self-government since the cultural councils have only the right to ‘request’ financial help from official and public foundations and organizations.”87 Furthermore, it has also been pointed out that the procedures for setting up a cultural autonomy body are so complex and expensive that it is preferable to establish an NGO specializing in cultural matters, since according to the relevant legislation NGOs are easier to establish, have a clear role, and enjoy the same rights as cultural self-governments regarding funding from the competent governmental authorities.88 Finally, considering the specific denial of the Estonian authorities to accept the establishment of cultural autonomy bodies by the Russian minorities, it has been commented that this power of discretion illustrates that the Act is tailored in such way “to give the state the opportunity to strategically bestow representative authority on selected minority organizations in order to deny greater autonomy to the minority as a whole”.89 All these criticisms have also been reflected in the opinions of the ACFC, which commented, in its first opinion of 14 September 2001, that the law had – nearly ten years after its adoption – no substantial impact on the practical situation in Estonia, since no cultural autonomy bodies had been established at that time based on the specific law. The Committee particularly emphasised the fact that the law excluded non-citizens from the leading positions of the cultural autonomy bodies,90 despite the fact that a significant proportion of the minority population did not have Esto-

84 ACFC/SR/III(2010)006, supra note 78, pp. 7-8. 85 M. Lagerspetz, S. Joons, Migrants, Minorities, Belonging and Citizenship – Globalization and Participation Dilemmas in EU and Small States: The Case of Estonia, Glocalmig Series, vol. 4, Bergen: 2004, p. 14, available at: http://eurospheres.org/files/2010/01/Vol4_Estonia_Final.pdf (accessed 30 May 2017). 86 K. Kössler, K. Zabielska, Cultural Autonomy in Estonia Before and After the Soviet Interregnum, in T. Benedikter (ed.), Solving Ethnic Conflict Through Self-Government: A Short Guide to Autonomy in Europe and South Asia, EURAC, Bozen / Bolzano: 2009, p. 59. 87 A. Semjonov, Estonia: Nation-Building and Integration - Political and Legal Aspects, in P. Kolstø (ed.), National Integration and Violent Conflict in Post-Soviet Societies – The Cases of Estonia and Moldova, Rowman and Littlefield Publishers: 2002, p. 132. 88 M. Lind, Is the Russo-phone Minority a Structural Security Threat to the Estonian State?, 9 Baltic Defense Review 34 (2003), pp. 40-41. 89 K. Kuutma, E.-H. Seljamaa, E.-H. Västrik, Minority Identities and the Construction of Rights in Post- Soviet Settings, 51 Folklore 49 (2012), p. 55. 90 See also Report by A. Eide, European Commission for Democracy Through Law, CDL(2006)055, Strasbourg, 20 June 2006, para. 12. 124 Athanasios Yupsanis nian citizenship, and it also left out some of the numerically smallest minorities from its scope of application, thus concluding that the law was not suited to the situation of minorities in existence at that time and should be revised or replaced, with a view toward strengthening the applicable norms and adapting them to the minority reality then existing in Estonia.91 In the same context, the Committee on the Elimination of Racial Discrimination (CERD) initially found that the narrow definition contained in the 1993 Law may restrict the scope of the state integration programme and turn integration policy into assimilation policy.92 The same Committee insisted that the exclusion of stateless persons with long-term residence in Estonia from the scope of the Law might lead to the alienation of that group from the Estonian State and society. Thus, it recommended that the definition of “minority” under the Law on Cultural Autonomy of National Minorities Acto of 1993 be amended to include non-citizens, in particular stateless persons with long-term residence in Estonia.93 The Government partly accepted the substance of the ACFC’s observations by admitting that the procedure for forming cultural autonomy bodies and the principles governing their activities were insufficiently implemented, and that for some ethnic groups, like the Ukrainians and the Belarussians, it would be difficult to reach the threshold of 3,000 persons in order to form a cultural council.94 In reply to the CERD’s observation that the definition in the 1993 Act may restrict the scope of the integration programme, the government noted that its principles are applicable with regard to everyone who identifies with a national minority, regardless of the size of the minority or other conditions, “including the citizenship of persons belonging to a national minority.”95 The government further admitted to the ACFC that [r]egardless of the efforts of the authorities to encourage national minorities tore- establish or set up their cultural self-governments, the implementation of the new cultural autonomy act under the changed historical and political circumstances has been problematic.96 Four years later, when only one cultural autonomy body – that of the Ingrian Finns – had been established and no amendments to the Act had been enacted, the ACFC

91 ACFC, Opinion on Estonia, adopted on 14 September 2001, ACFC/INF/OP/I(2002)005, paras. 29, 68. 92 Report of the Committee on the Elimination of Racial Discrimination, Sixtieth session (4-22 March 2002) – Sixty-first session (5-23 August 2002), Supplement No. 18, UN Doc. A/57/18, para. 355. 93 Concluding Observations of the Committee on the Elimination of Racial Discrimination: Estonia, UN Doc. CERD/C/EST/CO/7, 19 October 2006, para. 9. 94 Comments of the Government of Estonia on the Opinion of the Advisory Committee on the Implementation of the Framework Convention for the Protection of National Minorities in Estonia, GVT/COM/INF/OP/I(2002)005, 20 February 2002, para. 29. 95 Seventh Periodic Reports of States Reports due in 2002: Estonia-Addendum, UN Doc. CERD/ C/465/Add.1, 1 April 2005, para. 43. 96 Second Report submitted by Estonia pursuant to Article 25, paragraph 2 of the Framework Convention for the Protection of National Minorities, ACFC/SR/II(2004)009, Strasbourg, 16 July 2004, p. 5. Cultural Autonomy for Minorities... 125 declared once again, in its opinion of 24 February 2005, that the law had various shortcomings – such as its limited scope of application – and was generally considered to be ineffective and impractical, again recommending that it be amended.97 Finally, in its latest (so far) opinion of 1 April 2011, when the Act remained unchanged and only two numerically small minorities (the Ingrian Finns and Swedes) had established cultural autonomy bodies, the Committee, after noting for a third time that the Act has been considered impractical and ineffective for years and that both governmental and non-governmental interlocutors agreed that it no longer conformed to the actual realities and the demographic situation of the country, again encouraged the authorities to consider reviewing their minority policy and enacting legislation in broader terms, rather than focusing their attention on amending the National Minority Cul- tural Autonomy Act.98 Using an analogous prism, the Committee on Economic, Social and Cultural Rights (CESCR) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) initially recommended (2002) to the Estonian Government that it revise the Law in order to provide “for the expedient and full recognition of the rights of minority groups”,99 while in its latest observations (2011) it recommended – after noting the “absence of a legislative framework recognizing the identities and the cultural rights of minorities in spite of the activities undertaken for their promotion” – the adoption of a comprehensive law to ensure the protection and promotion of the economic, social, and cultural rights of all minorities.100 It has been argued that all these shortcomings and inconsistencies represent a sharp contrast to 1925 Law,101 especially since the only two cultural autonomy bodies established so far “do not have any official status comparable to local governments, as they had in the 1920s and the 1930s.”102 In assessing such a comparison, however, one should keep in mind that the historical context was strikingly different in the inter-war period. In particular, until the time it was occupied by the Soviet Union Estonia was a relatively homogeneous country. The population figures, however, changed dramatically during the Soviet regime, owing mainly to mass immigration of non-ethnic Estonians to the area as a result of combined policies of industrialization and Sovietisation.103 The 2011 census clearly exemplifies the new demographic reality: the country’s population amounts to 1,294,455 inhabitants, of whom the main ethnic groups are Estonians

97 ACFC, Second Opinion on Estonia, adopted on 24 February 2005, ACFC/INF/OP/II(2005)001, paras. 8, 26, 68-69, 187. 98 ACFC, Third Opinion on Estonia, adopted on 1 April 2011, ACFC/OP/III(2011)004, paras. 12, 26, 63-65. 99 Concluding Observations of the Committee on Economic, Social and Cultural Rights, UN Doc. E/C.12/1/Add.85, 19 December 2002, para. 57. 100 Concluding Observations of the Committee of Economic, Social and Cultural Rights, UN Doc. E/C.12/EST/CO/2, 16 December 2011, para. 30. 101 For a different view,see Kössler & Zabielska, supra note 86, pp. 58-59. 102 Lagerspetz, supra note 79, p. 468. 103 D. Smith, The Restorationist Principle in Post Communist Estonia, in: C. Williams, T. D. Sfikas (eds.), Ethnicity and Nationalism in Russia, the CIS and the Baltic States, Ashgate, Aldershot: 1999, pp. 291-292. 126 Athanasios Yupsanis

902,547 (69.7%); Russians 326,235 (25.2%); Ukrainians 22,573 (1.8%); Belorussians 12,579 (1%); Finns 7,589 (0.6%); Tatars 1,993 (0.2%); Jews 1,973 (0.2%); Latvians 1,764 (0.1%); Lithuanians 1,727 (0.1%); Poles 1,664 (0.1%); Germans 1,544 (0.1%); and Armenians 1,428 (0.1%).104 As one can observe, Estonia has to integrate some 39% of its residents, while during the inter-war period the analogous percentage constituted no more than 12%.105 Furthermore, the composition of minorities has changed. In place of the Germans, most of whom have emigrated or been expelled, and the Jews, most of whom were exterminated by the Nazis, the main minorities are the Russians, Ukrai- nians, and Belorussians.106 The bulk of this “new” minority population thus belongs to the Russian ethnic group, which is perceived by (some of) the authorities as a “national enemy”.107 Apart from the vast differences in the historical context and the security and political concerns offered as justification for the non-implementation of the Act, Aidarov and Dreschler have suggested that from the beginning there may not existed a sincere intention to implement the obligations emanating from a literal interpretation of the Act, as it had rather a “performative” character aimed as serving other purposes than those explicitly stated, namely to advance the country’s human rights profile in order to gain international support and recognition and to signal its legal continuity with the “Golden Age” of the pre-World War II Republic, an era of economic prosperity, democratic ethnic pluralism, and national independence.108 Lagerspetz, on the other hand, argues that indeed goodwill existed on the part of the basic actors under the Act, but it was limited to the satisfaction of the cultural needs of the small minorities – and not of the large Russian one – notwithstanding the fact that the Act did not operate effectively even for them, as neither the Ingrian Finns’ nor the Swedes’ cultural autonomy bodies have a clearly defined status which would enable them to carry out their functions.109 In sum, the initial high expectations have vanished and the implementation of the Act (if not the Act itself) has been seen by several scholars as a failure.110 This conclusion can also be tacitly deduced from the views of the ACFC, which in its latest above-mentioned opinion avoided calling for, as it did in its previous opinions, the amendment of the 1993

104 See 2011 Population and Housing Censuses in Estonia, Latvia and Lithuania, supra note 44, p. 24. 105 R. R. Kionka, Estonia’s Minority Policy: Origins and Development, Estonian Ministry of Foreign Affairs Yearbook 31 (2007), p. 39. 106 V. Bogdanor, Forms of Autonomy and the Protection of Minorities, 126 Daedalus 65(1997), p. 83. 107 See O. Mertelsmann, How the Russians Turned into the Image of the “National Enemy” of the Estonians, 19 Pro Ethnologia 43 (2005), pp. 43-58. 108 See A. Aidarov, W. Dreschler, The Law and Economics of the Estonian Law on Cultural Autonomy for National Minorities and of Russian National Cultural Autonomy in Estonia, 12 Halduskultuur Administrative Culture 43 (2011), pp. 43-61. 109 Lagerspetz, supra note 79, pp. 458, 470. 110 M. Andeva, Non-Territorial Autonomy: European Challenges and Practices for Ethnic Conflict Resolution, 44 Political Thought 81 (2013), p. 85, who refers to Smith’s conclusion that cultural autonomy in Estonia “does not function in any meaningful sense”; Lagerspetz, supra note 79, pp. 457-458; Semjonov, supra note 70, p. 424. Cultural Autonomy for Minorities... 127

Act (thus admitting that it would make no difference), but instead emphasized that the Estonian government should reconsider its overall minority policy and legislation.111 2.4. The Russian Federation As Bowring commented, with a slight sense of amusing irony, the adoption of the Federal Law on National and Cultural Autonomy (FZ No.74)112 by the Russian Fed- eration on 17 June 1996 can be viewed as the “Austro-Marxism’s last laugh”, given the historically negative stance of the Bolsheviks towards the concept of national cultural autonomy.113 This stance changed partially with the gradual collapse of the Soviet regime and the parallel emergence of numerous public associations formed along ethnic lines, which created anxiety among the authorities that the disparate groups “had to be standarized and placed under control.”114 In this context, leading Russian scholars considered the national cultural autonomy scheme to be “the most plausible alternative to the Soviet territorial model”115 as a mechanism for addressing the centrifugal tendencies of the 1990s116 and managing the over 170 “nationalities” in the tapestry of the Russian Federation’s rich ethnic diversity.117 Thus the 1996 Law, which has been amended several times since its enactment, defines in its first article the notion of a national cultural autonomy (NCA) as a form of national and cultural self-determination constituting a public association of citizens [emphasis added] of the Russian Federation, identifying themselves with certain ethnic communities, based on their voluntarily chosen identity for the purpose of independently resolving the issues of their identity preservation and their linguistic, educational and national cultural development.118 Although this definition was later changed so as to exclude ethnic Russians from forming NCAs, its main textual content has remained intact, giving the impression

111 ACFC/OP/III(2011)004, supra note 98, para. 65. 112 The original form of the Law is available in English at: http://www.regione.taa.it/biblioteca/mi- noranze/russia3.pdf (accessed 30 May 2017). 113 B. Bowring, Austro-Marxism’s Last Laugh? The Struggle for Recognition of National-Cultural Autonomy for Rossians and Russians, 54 Europe-Asia Studies 229 (2002), pp. 238-239. 114 E. Fillipova, V. Filippov, National-Cultural Autonomy in Post Soviet Russia Over Two Decades: Concept and Institution, 1 Ethnicity 50 (2015), p. 51. 115 See Bowring, supra note 113, p. 240. 116 V. Zavenovich Akopyan, V. Pavlovic Ermakov, L. Ivanovna Milyaeva, The “Local” Form of the National and Territorial Autonomy and the Possibility of the Application of its Experience, 22 World Applied Sciences Journal 1080 (2013), p. 1080. 117 As the Russian government stated in its first report to the ACFC, theR ussian Federation “is one of the largest multinational states in the world, inhabited by more than 170 peoples, the total population being about 140 million.” On the whole minorities constitute approximately 20% of the total population, varying numerically from several million (the Tatars and the Ukrainians e.g.) to some thousands (the Khanti and the Mansi e.g.). See Report Submitted by the Russian Federation Pursuant to Article 25 Paragraph 1 of the Framework Convention for the Protection of National Minorities, 8 March 2000, ACFC/SR(1999)015, p. 4. 118 Second Report submitted by the Russian Federation pursuant to Article 25, Paragraph 2 of the Framework Convention for the Protection of National Minorities (received on 26 April 2005), ACFC/ SR/II(2005)003, p. 8. 128 Athanasios Yupsanis that the law treats the institution of NCA as “something we could probably define as a ‘social institute’ on ethnic belonging”,119 “a kind of voluntary society”,120 rather than a public law legal entity endowed with public powers to take binding decisions on cultural affairs.121 According to Article 2, NCAs are based on the principles of freedom of voluntary self-identification, self-organization and self-government, diversity of forms of internal organization, a combination of public initiative and state support, and respect for cultural pluralism.122 Furthermore, Article 4 proclaims that NCAs have, among other rights, the rights of preservation of their national identity, development of their native languages, preservation and enrichment of their historical and cultural heritage, promotion of respect for their national traditions and customs, revival and development of folk arts and trades, as well as the establishment of mass media, dissemi- nation of information in their own languages, setting up of educational and scientific institutions and cultural organizations, participation in the meetings and actions of international NGOs, and the establishment of contacts with citizens of foreign NGOs.123 Moreover, the Law recognizes, inter alia, the right of citizens who consider themselves to belong to minorities to receive basic education in their native tongue and also to choose their language of instruction (Article 10).124 Article 5 of the Law foresees three levels of NCAs – local (at the level of a city, district, village etc.); regional (at the level of the so-called “subject of federation”); and federal.125 It should be noted, however, that the Law lacks any provision for the establishment of a minority electoral register, not to mention for election procedures, as the original Austro-Marxist model stipulated. Instead, the selection of delegates who set up the local NCAs through general assemblies (conferences) is not based on voting but on (self)appointment by the national non-governmental minority associations (Article 6).126

119 C. Codagnone, V. Filippov, Equity, Exit and National Identity in a Multinational Federation: The ‘Multicultural Constitutional Patriotism’ Project in Russia, 26 Journal of Ethnic and Migration Studies 263 (2000), p. 279. 120 B. Povarnitsyn, Perm Oblast: Autonomies to Choose From, 9 Demokratizatsiya 243(2001), p. 253. 121 As Berg-Nordlie observes, the NCAs are not official organs and do not bear formal powers, M. Berg-Nordlie, Striving to Unite. The Russian Sami and the Nordic Sami Parliament Model, 2 Arctic Review on Law and Politics 52 (2011), p. 62. 122 European Roma Rights Centre, In Search of Happy Gypsies - Persecution of Pariah Minorities in Russia, Country Reports Series No 14, Budapest, 2005, p. 206, available at: http://www.errc.org/cms/upload/media/01/9A/m0000019A.pdf (accessed 30 May 2017). 123 Comments of the Government of the Russian Federation on the Third Opinion of the Advisory Committee on the Implementation of the Framework Convention for the Protection of National Minorities by the Russian Federation, GVT/COM/III(2012)004, Strasbourg, 25 July 2012, p. 5. 124 D. Badmatsyrenova, A. Elivanova, Language Policy in Russia: The Case Study of the Yakut Language, in: L. Heininen, K. Laine (eds.), The Borderless North, The Thule Institute, University of Oulu Northern Research Forum, Akureyri: 2008, p. 216. 125 I.S. Fatov, Public Associations of Russia Within the Framework of International Relations, 4 International Academic Magazine of the Russian Academy of Natural Sciences (2013), p. 88. 126 F. Prina, The Role of International Mechanisms in Promoting the Cultural Rights of National Minorities in a Changing Russian Federation (2000-2011), Thesis submitted to School of Slavonic andE ast European Cultural Autonomy for Minorities... 129

The delegates of the local NCAs can then establish, through conferences, a regional NCA and so on (Article 6). This pyramidal arrangement from the local to the federal corresponds roughly to the fact that the Russian Federation is a highly asymmetrical federal polity, characterized by a complex hierarchical structure which, according to Article 65 of its Constitution, comprised at the time of the Law’s enactment 89 constituent entities (subjects): 2 federal cities, 49 oblasts, 21 republics, 9 krais, an autonomous region, and 10 autonomous okrugs.127 Also, this system, in combination with the 2004 Russian Constitutional Court’s rule that only one local or regional autonomy per minority could be established in a municipality or a region, reflected the central government’s perception that each minority as a group would speak with one voice, an assumption based on the supposed minorities’ homogene- ity, distilling “core” messages and carrying them from the local sections up to the highest political institutions.128 This function would be done through the Consultative Council on the Affairs of National-Cultural Autonomy Bodies (NCAs) in the Government of the Russian Federation, created according to Article 7 of the Law and consisting of the representatives from each federal NCA.129 Additionally, the same article provides for the formation of consultative councils or other advisory bodies on the affairs of NCAs within the organs of executive power of the subjects of the Russian Federation.130 Finally, with respect to fiscal resources the original form of the 1996 Law stipulated in Article 16 that the financing of the activities related to the implementation of the rights of the national-cultural autonomy bodies would be provided at the expense of a) the NCAs, their establishments and organizations; b) private persons; and c) the federal budget, the budgets of the subjects of the Russian Federation, and local budgets. How- ever, as regards as the last provision, the 2009 amendment to Article 16 stipulates that the federal executive bodies may [emphasis added] provide financial support to federal national and cultural autonomy bodies (NCAs) at the expense of the federal budget; executive bodies of the subjects of the Russian Federation may [emphasis added] provide such support to regional and local NCAs at the expense of regional budgets; and local self-governing bodies may [emphasis added] provide financial support to local NCAs at the expense of local budgets.131

Studies, University College London, 2012, p. 269, available at: http://discovery.ucl.ac.uk/1357425/1/ PhD.FPrina.2012.Final%20after%20corrections.pdf (accessed 30 May 2017). 127 T. F. Kryaklina, National Culture Associations as Subjects of Crosscultural Communications in Altai Krai of the Russian Federation, 200 Procedia – Social and Behavioral Sciences 273 (2015), p. 276. 128 F. Prina, Power, Politics and Participation: The Russian Federation’s National Minorities and Their Participatory Rights, 30 Netherlands Quarterly of Human Rights 65 (2012), p. 84. 129 Fourteenth Periodic Reports of States Parties due in 1994: Addendum-Russian Federation, UN Doc. CERD/C/299/Add.15, 28 July 1997, para. 33. 130 S. Barbieri, National Cultural Autonomy in the Russian Federation: The Case of of the Tomsk Oblast, in: L. Salat, S. Constantin, A. Osipov, I. G. Székely (eds.), Autonomy Arrangements Around the World: A Collection of Well Known and Lesser Known Cases, Cluj-Napoca: 2014, p. 329. 131 Third Report submitted by the Russian Federation pursuant to Article 25, Paragraph 2 of the Framework Convention for the Protection of National Minorities (received on 9 April 2010), ACFC/SR/ III(2010)005, Strasbourg, 9 April 2010, pp. 104-105. 130 Athanasios Yupsanis

The Law was presented by the government as a masterpiece of theR ussian system of diversity management,132 and was at first enthusiastically accepted as a device for national rebirth by the elites of several national minorities, who saw in it an opportunity for gaining financial support from the state133 (though this expectation has never been realized, at least to the desired level), as well as for attaining a “higher” status and greater access to state powers.134 This “popularity” is still reflected in the growing number of NCAs, which according to the latest available official data granted by theR ussian government to the ACFC at the end of 2008 included 18 federal NCAs (established by the Armenians, Assyrians, Azeris, Belarusians, Chuvash, Germans, Jews, Karachais, Kazakhs, Koreans, Kurds, Lezghins, Lithuanians, Poles, Roma, Serbs, Tatars and Ukrainians), 208 regional and 501 local NCAs.135 As Bowring notes, the most active nationalities in setting up NCAs are the Tatars, the Jews and the Germans, who seem to assess this model as their best hope for organization and representation,136 further commenting that if the number of NCAs was a reliable guide, then the Law could be considered a success.137 The Law was also initially hailed by the ACFC as a development that could contribute to improvement in the protection of minority cultures.138 In a similar context, Torode has argued that the Law marked a historic departure in the treatment of ethnic minorities and had made a positive contribution in certain aspects by: a) consolidating the identity of specific groups, such as theR oma and the Jews, according to their own representatives’ statements; b) recognizing for the first time certain ethnic groups as beneficiaries of the promotion of their cultural rights, regulating at the same time their interaction with the state bodies; c) incorporating, at least to some degree, ethnic minorities into the central and regional government decision – making apparatuses; and d) performing an essential role in post-Soviet Russia of opening up the debate on the national question.139 Several elements, however, from the beginning attracted criticism by the ACFC and several scholars. Firstly, the Committee noted that Article 1 of the Law restricts the notion of national-cultural autonomy to citizens of the Russian Federation only, pointing out that the personal scope of application should be brought in line with an inclusive ap-

132 O. Protsyk, B. Harzl, Introduction, in: O. Protsyk, B. Harzl (eds.), Managing Ethnic Diversity in Russia, Routledge, New York: 2013, p. 6. 133 See e.g. R. Woronowycz, Russia’s Ukrainians Hold Second Congress, LXV The Ukrainian Weekly (1997), p. 1. 134 N. Torode, National Cultural Autonomy in the Russian Federation: Implementation and Impact, 15 International Journal on Minority and Group Rights 179 (2008), pp. 182, 187, 193. 135 A. Osipov, National Cultural Autonomy in Russia: A Case of Symbolic Law, 35 Review of Central and East European Law 27 (2010), pp. 42-43. 136 B. Bowring, Burial and Resurrection: Karl Renner’s Controversial Influence on the ‘National Question’ in Russia, in: E. Nimni (ed.), National-Cultural Autonomy and its Contemporary Critics, Routledge [Taylor and Francis e-Library], London and New York: 2005, pp. 171, 173. 137 Ibidem, p. 171. 138 ACFC, Opinion on the Russian Federation, ACFC/INF/OP(2003)005, Strasbourg 13 September 2002, para. 43. 139 Torode, supra note 134, pp. 188, 192-193. See also European Roma Rights Centre, supra note 122, pp. 223-224. Cultural Autonomy for Minorities... 131 proach so as to ensure that non-citizens belonging to the minorities concerned could also benefit from the Law.140 Secondly, the Committee observed that the Law, together with its 2002 amendments, has been generally understood to exclude political activities from the scope of the NCAs, commenting that since the activities aimed at the protection of minorities may also have a political dimension this exclusion should not be interpreted in a manner that hinders the legitimate activities of the NCAs.141 Thirdly, with respect to the consultative structures the Advisory Committee noted originally that the creation of the consultative councils at not only the federal but also at the level of the subjects of the federation, as envisaged in Article 7 of the Law on National-Cultural Autonomy, is an important element in the implementation of the principles of the law.142 However, in considering the established advisory councils for national minorities at the level of the subjects of the Federation, the Committee has repeatedly noted that they appear to rarely have opportunities to influence decision-making143 and are expected to implement rather than contribute to the preparation of minority-relevant legislation.144 Consequently, it opined that there is a need to improve the consultation opportunities of NCAs in the decision-making processes.145 TheG overnment not only did nothing to improve the situation but, as the Committee critically observed in its third opinion, in the 2009 amendment to the Law failed to reinstate the obligation to consult NCAs on issues of direct concern to them.146 Lastly, regarding the funding of the NCAs the Committee noted that according to the 2009 amendments to the Law, the municipal, regional and federal authorities may fund the NCAs, but they are not obliged to do so.147 Overall, the Commit- tee concluded that the Law does not create clear obligations on the part of the State with regard to the preservation of the cultural identity of minority persons and does not clearly mark the competencies that the creation of a NCA grants,148 and urged the authorities to provide more clarity on the legal status and competencies of NCAs and establish criteria and procedures for the allocation of funding.149 The Russian government, on its part, has very diplomatically admitted that in practice the wide opportunities provided by the Law “are not fully utilized in many instances”, but has attributed this deficiency merely “to inadequate institutionalization of persons belonging to national minorities,”150 deny-

140 ACFC/INF/OP(2003)005, supra note 138, para. 22; Bowring, supra note 136, p. 172. 141 ACFC, Second Opinion on the Russian Federation, adopted on 11 May 2006, ACFC/OP/II(2006)004, Strasbourg, 2 May 2007, para. 68. 142 ACFC/INF/OP(2003)005, supra note 138, para. 44. 143 ACFC/OP/II(2006)004, supra note 141, para. 23. 144 Ibidem, para. 90. 145 Ibidem, para. 172. 146 ACFC, Third Opinion on the Russian Federation, adopted on 24 November 2011, ACFC/OP/ III(2011)010, Strasbourg, 25 July 2012, para. 72. 147 Ibidem. 148 Ibidem. 149 Ibidem. 150 Comments of the Government of the Russian Federation on the Second Opinion of the Advisory Committee on the Implementation of the Framework Convention for the Protection of National Minorities 132 Athanasios Yupsanis ing in this way its own responsibilities for the inherent shortcomings and the inadequate implementation of the Law. Several authors have also been very critical toward the Law, for a variety of reasons. Some point out that the absence of procedures for the election of representatives in the NCAs results in the lack of a broad representative base for minorities, guaranteeing only a tenuous link of accountability between the NCA leaders and the “ordinary” minority members.151 Others focus on the issue of the status of NCAs, which has been reduced, especially after the 2004 amendment, “to the level of rank-and-file social organizations.”152 In this context some observe that there exist so many legal constraints to the establishment of an NCA that it is far easier, in order to serve the minorities’ cultural needs, to set up a conventional association (e.g. NGO) specializing in the cultural area than a NCA.153 This fact, in combination with the decentralization of governmental financial backing, which led to poor funding,154 has deprived the NCAs from any actual powers to develop educational or linguistic policies, making them hardly different from regular NGOs.155 Indeed, Osipov has further claimed that the NCAs are even a deterio- rated version of non-profit NGOs, since the former, in addition to all of their previously mentioned deficiencies, have fewer rights than the latter.156 He comes to the conclusion, as Semjonov did with respect to the cultural autonomy bodies in Estonia, that they are “ultimately useless, as ordinary NGOs can achieve all the goals and objectives that were intended for NCAs.”157 Viewed in this light, the only difference in practice between ordinary NGOs and the NCAs is that the latter constitute a type of NGO that enjoys a higher symbolic status.158 All these drawbacks led Bowring to argue that the Russian by the Russian Federation (received on 11 October 2006), GVT/COM/II(2006)006, Strasbourg, 2 May 2007, p. 4. 151 Prina, supra note 128, pp. 84, 87. 152 B. Bowring, The Tatars of the Russian Federation and National-Cultural Autonomy: A Contradiction in Terms?, 6 Ethnopolitics 417 (2007), p. 428; Torode, supra note 134, pp. 183-184, 192; Filippova and Filippov, supra note 114, p. 55. 153 A. Heinemann-Gruder, Federal Discourses, Minority Rights, and Conflict Transformation, in: C. Ross, A. Campbell (eds.), Federalism and Local Politics in Russia, Routledge, London: 2009, p. 66. 154 See B. de Villiers, Section 235 of the Constitution: Too Soon or Too Late for Cultural Self-Determination in South Africa?, 30(3) South African Journal of Human Rights 458(2014), pp. 481-482; Torode, supra note 134, pp. 188-189; Prina, supra note 128, p. 90; Osipov, supra note 135, p. 49; Filippova and Filippov, supra note 114, p. 56; European Roma Rights Centre, supra note 122, p. 218. 155 F. Prina, Protecting the Rights of Minorities and Indigenous Peoples in the Russian Federation: Challenges and Ways Forward, Minority Rights Group Europe and Youth Human Rights Movement, Report 2014, p. 14. 156 A. Osipov, The “People’ Congresses” in Russia: Failure or Success? Authenticity and Efficiency of Minority Representation, ECMI Working Paper, 2011, pp. 3-4, available at: http://www.academia.edu/11670761/ The_Peoples_Congresses_in_Russia_Failure_or_Success_Authenticity_and_Efficiency_of_Minority_ Representation._ECMI_Working_paper_No.48._August_2011 (accessed 30 May 2017). 157 Osipov, supra note 135, p. 53; Filippova & Filippov, supra note 114, p. 55. 158 M. Berg-Nordlie, Two Centuries of Russian Sami Policy: Arrangements for Autonomy and Participation Seen in Light of Imperial, Soviet and Federal Indigenous Minority Policy 1822-2014, 32 Acta Boeralia 40 (2015), pp. 50-51. Cultural Autonomy for Minorities... 133 model is “highly imperfect” and, compared to Renner’s idea, “half-hearted” as NCAs are not given taxing powers, or control over education, much less local administration.159 All in all, as with the Estonian paradigm most scholars evaluate the functioning of NCAs in Russia as a failed project that has brought no real benefits to minorities,160 justifying Bowring’s concluding observation that “we are witnessing the end of a fascinating but doomed experiment.”161 Yet, the increasing number of NCAs indicates that there maybe other reasons, not necessarily linked to cultural preservation, that lead the minorities – or to be more precise a segment of them – to accept this institution. These may include calculations over potential material benefits, personal prestige, political ambitions, access to public office, state support for demonstrating loyalty, etc.162

Concluding remarks

The examination of the existing cultural autonomy arrangements that have been enacted in some states of the former USSR after its demise clearly shows that they do not function properly. Contrary to the Austro-Marxists’ proposals and to the successful precedent of the inter-war Estonian example, the present minority cultural councils/ autonomies in Estonia and Russia have no clearcut legal status, competencies, law-making capabilities, no decisive authority in their field (cultural affairs), and they do not enjoy real financial autonomy. This situation leads to the suggestion that concerns other than the protection of the cultural rights of minorities constituted hidden motives for the introduction of the cultural autonomy schemes in these countries. For example, it has been pointed that in the case of Estonia the need to connect symbolically with the 1920’s “Golden Age” of democracy (the restitutional framework), which was seen as a commendable past in the early 1990s (“back to the pre-Communist good practices”),163 coupled with a strategic move to promote a democratic and multicultural external image in order to gain international recognition, formed the primary reasons for the enactment of its 1993 Law.164 In the case of Russia it is suggested that the introduction of the cultural autonomy scheme is designed mainly as an attempt to enhance the loyalty of those nationalities that lack territorial recognition165 through a “loose agreement” on “consulting” with their elites rather than the nationalities themselves.166 In this regard

159 Bowring, supra note 136, p. 173; Filippova & Filippov, supra note 114, p. 52. 160 K. Zamyatin, Russian Political Regime Change and Strategies of Diversity Management: From a Multinational Federation Towards a Nation State, 15 Journal of Ethnopolitics and Minority Issues in Europe 19(2016), p. 33; Prina, supra note 126, pp. 258-259; Filippova & Filippov, supra note 114, pp. 56, 59. 161 Bowring, supra note 152, p. 431. 162 Prina, supra note 128, p. 87; Filippova & Filippov, supra note 114, p. 57. 163 Osipov, supra note 49, p. 19. 164 Smith, supra note 1, p. 39. 165 Ibidem., p. 45. 166 J. Coakley, Introduction: Dispersed Minorities and Non-Territorial Autonomy, 15 Ethnopolitics 1 (2016), p. 15. 134 Athanasios Yupsanis the granting of cultural autonomy is a top-down process, in which the state authorities are mostly interested in pursuing their own strategic political agenda rather than ensuring the enjoyment of the minorities’ cultural rights. In striking contrast, it has been argued that in inter-war Estonia the demand for cultural autonomy came from the minorities themselves (mainly the urbanized, highly educated and relatively cohesive German minority), and that the granting of autonomy was not an outcome of oppor- tunist bargaining nor mainly the result of a careful balancing of political interests, but rather was based on principle.167 However, notwithstanding the fact that the cultural autonomy provisions/laws/regimes in the examined countries are considerably weaker than the original Austro- Marxist proposal and are practically toothless, one cannot overlook the fact that they constitute a “symbolic recognition” of the minority cultural identities, guaranteeing some (albeit few) cultural “goods”.168 This seems to please some of them, at least in the case of Russia (e.g. Tatars, Germans), as the increasing numbers (hundreds) of NCAs indicate. It would be reasonable then to suggest that a better functioning of these arrangements, in a spirit of goodwill on the part of governments,169 would enhance the enjoyment of minority cultural rights and contribute to stability, thus fulfilling the two main objectives of the model. In this respect useful guidance has been given by the ACFC. Specifically, notwithstanding the fact that the FCNM does not provide minorities with a right to cultural autonomy, the Committee has taken the opportunity to comment on the cultural autonomy arrangements which the examined states have established on their own initiative, and has offered some useful observations, mostly regarding the need for a more inclusive definition of the notion of “minorities” so as to include non-citizens, as well as for the enhanced participation of minorities in the decision-making processes. The ACFC, by finding in all cases that the cultural autonomy scheme is not working properly, has recommended that [w]here State Parties provide for such cultural autonomy arrangements, the corresponding constitutional and legislative provisions should clearly specify the nature and scope of the autonomy system and the competencies of the autonomous bodies. In addition, their legal status, the relations between them and other relevant institutions as well as the funding of the envisaged autonomy system should be clarified in the respective legislation.170 If one takes into account the facts that – on one hand none of the examined countries has ratified the Optional Protocol to the ICESCR, which would give their minority citizens the right to file a petition before the CESCR regarding potential violations of Article 15.1(a) of the ICESCR on the right to take part in cultural life (which re-

167 Zacharias, supra note 24, p. 329. 168 J. Coakley, Conclusion: Patterns of Non-Territorial Autonomy, 15 Ethnopolitics 166 (2016), p. 182. 169 K. Porter, The Realization of National Minority Rights, 3 Macquarie Law Journal 51 (2003), p. 66. 170 ACFC, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, adopted on 27 February 2008, ACFC/31DOC(2008)001, Strasbourg 5 May 2008, para. 136. Cultural Autonomy for Minorities... 135 cently has been interpreted by the CESCR to provide advanced protection to minority cultural rights);171 and that on the other hand the path of individual communications to the HRC for alleged violations of Article 27 of the ICCPR on the right of minority persons to enjoy their culture has so far been of more practical use to indigenous peoples than to minorities;172 then one can conclude that the ACFC’s observations might serve as useful guidelines for governments and minorities to pursue a mutually acceptable compromise. However, until such time as the ACFC’s recommendations become a reality it is highly improbable that the cultural autonomy arrangements, in their present forms in the examined countries, will meaningfully contribute to the effective enjoyment of cultural life by most members of minorities.

171 See A. Yupsanis, The Meaning of ‘Culture’ in Article 15 (1) (a) of the ICESCR - Positive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures, 55 German Yearbook of International Law 345 (2012), pp. 345-383. 172 See A. Yupsanis, Article 27 of the ICCPR Revisited – The Right to Culture as a Normative Source for Minority/Indigenous Participatory Claims in the Case Law of the Human Rights Committee, 26 Hague Yearbook of International Law 359 (2013), p. 405.

XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016g 2016 PL ISSN 0554-498X

Anna Karapetyan*

A Recurring Phenomenon: The Lawful Sanctions Clause in the Definition of Torture and the Question of Judicial Corporal Punishment under International Human Rights Law

Abstract: Despite the universal condemnation of torture, the prevention of appalling practices of ill-treatment has not been achieved in the 21st century. The repugnant practice persists and even increases because of the disingenuous interpretations of the definition of torture and the lack of effective enforcement mechanisms. Notwithstanding the cogency of the absolute and non-derogable prohibition of torture, particularly regarding the treatment of detainees, nowadays corporal punishment as a punitive measure is arguably a recurring phenomenon in several former Brit- ish colonies and in States where the legal system is based on Islamic Sharia. While several legally binding universal and regional instruments prohibit torture in general terms, with no specific definition, the scope of the Convention against Torture definition was narrowed down by the lawful sanctions clause. The universality of the definition has been undermined by the inclusion of this clause, since different States have different practices when it comes to lawful and unlawful sanctions. The intractable problem of the interpretation of the definition by the State-Parties and the lack of effective control mechanisms has perennially posed the greatest challenge with respect to compliance with International Human Rights Law. In light of the above, this article seeks to critically dissect the lawful sanctions clause within the context of corporal punishment.

Keywords: human rights, prohibition, torture, inhuman treatment, corporal punishment

Introduction

Despite the universal condemnation of torture, the prevention of appalling and persistent practices of ill-treatment has not been achieved during the second half of the 20th

* Bachelor (Yerevan State University, Armenia), Master of Law (LL.M.) in International Human Rights and Humanitarian Law (European University Viadrina, Germany). Current intern at the Office of the Legal Adviser at the Organisation for the Prohibition of Chemical Weapons in The Hague (The Netherlands). 138 Anna Karapetyan century and the beginning of the 21st century, a period which has been characterized as affected by a plague of torture. While torture is perceived as an aberration that must never be permitted to occur under International Human Rights Law (IHRL), nonetheless the repugnant practice persists and increases because of the disingenuous interpretations of the definition of torture and the lack of effective enforcement mechanisms. Notwithstanding the cogency of the absolute and non-derogable prohibition of torture, particularly regarding the treatment of detainees and prisoners, nowadays corporal punishment as a punitive measure is arguably a recurring phenomenon in a number of States. As a result of the significant obstacles to discovering information about the practice, including, inter alia, the fear to complain, the absence of independent witnesses given the intrinsic nature of such acts and their geographical isolation, the impossibility to obtain precise statistics – or even a rough picture of the ongoing prevalence of ill- treatment towards detainees – reliable information on the phenomenon is relatively low. However despite these hindrances Amnesty International has documented the occurrence of torture and other inhuman, cruel or degrading treatment in 141 countries between 2009 and 2013. The intractable problems of the deceitful interpretation of the definition by the States and the lack of effective control mechanisms have perennially posed the major challenge in relation to compliance with IHRL leading to pervasive detrimental effects and consequences for detainees. Furthermore, the relative priorities of the different limbs of the prohibition also enables States to argue that their impugned practices fall short of torture when it comes to the legal interpretation of the definition, while various States have nevertheless admitted that their conduct may amount to cruel, inhuman or degrading treatment, as a textualist reading of the United Nations (UN) Convention against Torture (CAT or the Convention) proffers that the absolute ban refers only to torture, and not to other forms of ill-treatment. While several legally-binding universal and regional instruments prohibit torture in general terms without specifically defining the term, the scope of the TCA definition

M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, Deutsches Institut für Menschenrechte, Kehl: 2005, p. 158. The use of the terms “detainee” or “prisoner”, either together or separately, refers to anyperson under the supervision of State officials. N. Rodley, M. Pollard, The Treatment of Prisoners under International Law, Oxford University Press, New York: 2009, p. 10. Amnesty International, Torture in 2014, Thirty Years of Broken Promises, Amnesty International, London: 2014, p. 10. F. L. Rouillard, Misinterpreting the Prohibition of Torture under International Law: The Office of Legal Counsel Memorandum, 21 American University International Law Review 9 (2005), p. 20. Convention against Torture (adopted 10 December 1984, entered into force 26 June 1987), 1465 UNTS 85. Article 2 of the CAT. A Recurring Phenomenon... 139 was narrowed down by the lawful sanctions clause contained therein. Whereas practices of torture are in clear violation of both domestic and international law, the lawfulness of corporal punishment persists in the penal codes of several States, particularly in States where the legal system is based on Islamic Sharia. The universality of the definition of torture within the CAT has therefore been undermined by the inclusion of the lawful sanctions clause, since different States have different practices when it comes to lawful and unlawful sanctions. In light of the above, this article seeks to critically dissect various aspects of the challenges surrounding the prohibition of torture and other forms of ill-treatment. The article will dwell upon and tackle the highly controversial lawful sanctions exception contained in the definition of torture set out in Article 1 of the CAT, viewing the issue in the context of corporal punishment.

1. The legal prohibition of torture and other forms of ill-treatment under IHRL

This section analyses the prohibition of torture contained in general universal human rights treaties, most notably the CAT, which is arguably the only multilateral torture-specific treaty that provides a definition of torture, thus creating a general -au thoritative guideline. It examines the definition contained in the CAT, focusing on the lawful sanctions clause. It also outlines the interpretation of the lawful sanctions clause by human rights treaty bodies at the international and regional levels to illustrate the amorphous points of the clause, which have permitted States to stray considerably from their obligations under IHRL, leading to the perpetuation of the practice of corporal punishment. It is argued herein that the lawful sanctions clause is not a carte blanche provided to the State-Parties, and that it must be interpreted in a manner consistent with the spirit of the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment (CIDTP or other forms of ill-treatment). 1.1. The international law approach Many aspects of IHRL in the modern world were formulated in response to the crimes committed during World War II. The adoption of the Universal Declaration of Human Rights (Declaration), arguably the principal achievement in the development of international human rights, heralds rights for individuals and includes a universal proscription of torture and CIDTP in Article 5, giving rise to the prohibition which pervades subsequent universal and regional human rights instruments.10

Rodley & Pollard, supra note 3, p. 45. Universal Declaration of Human Rights (adopted 10 December 1948), UN General Assembly Res. 217 A (III). 10 Rodley & Pollard, supra note 3, p. 45. 140 Anna Karapetyan

Following ample time devoted to drafting procedures, the General Assembly (GA) on 9 December 1975 adopted a resolution containing the Declaration on the Pro- tection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in order to provide more effective protection against torture.11 Notwithstanding the non-binding nature of the Declaration, it not only formulated a coherent set of rules, composed of 12 articles that sought to prohibit the commission of torture, but also provided the first definition of torture.12 Torture and CIDTP are explicitly prohibited in various binding international human rights treaties, with most setting up committees with mandates to monitor the compliance of State-Parties with their obligations under the respective instruments. All of the pertinent provisions enshrined in a number of universal and regional treaties are not only “non-derogable in times of war and emergency … [but] it is also ensured without any restriction whatsoever.”13 Due to the unconditional recognition of its prohibition by the international community, torture is widely regarded as a universally abhorrent practice prohibited by customary international law,14 which has acquired the status of jus cogens pursuant to Article 53 of the Vienna Convention on the Law of Treaties (VCLT).15 Furthermore, the prohibition of torture has also been entrenched in international law as an erga omnes obligation, meaning that the rights or obligations are owed by a State towards the international community as a whole.16 The International Covenant on Civil and Political Rights (ICCPR)17 was the first binding universal human rights treaty to outlaw the practice of torture and the CIDTP under Article 7, with the intention to protect the physical and mental integrity and dignity of individuals.18

11 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN General Assembly Res. A/RES/3452(XXX), (9 December 1975); See also O. Hathaway, Tortured Reasoning: The Intent to Torture under International and Domestic Law, 52 Virginia Journal of International Law 791 (2012), p. 798. 12 J. Herrmann, Implementing the Prohibition of Torture on Three Levels: The United Nations, the Council of Europe, and Germany, 31 Hastings International and Comparative Law Review 437 (2008), p. 441. 13 M. Nowak, Challenges to the Absolute Nature of the Prohibition of Torture and Ill-treatment, 23 (4) Netherlands Quarterly of Human Rights 674 (2005), p. 674; See also Article 5 of the UDHR; Articles 7 and 4(2) of the ICCPR; Articles 3 and 15(2) of the ECHR; Articles 5(2) and 27(2) of the ACHR; Article 5 of the ACHPR. 14 B. Simma, A. Philip, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, 12 Australian Yearbook of International Law 82 (1992), pp. 86-93; See also, M. Nowak, supra note 13, p. 674. 15 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980), 1155 UNTS 331. 16 Rouillard, supra note 5, pp. 14-17. 17 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), 999 UNTS 171. 18 Human Rights Committee (HRC), General Comment 20 (GC), UN Doc. HRI/GEN/1/Rev.1 (1992), para. 2. A Recurring Phenomenon... 141

At the regional level, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)19 was adopted by the Council of Europe in 1948. Similarly as with the ICCPR, the ECHR does not provide a definition of torture, however the European Commission of Human Rights (EComHR) and the European Court of Human Rights (ECtHR) have made significant contributions to the development of this substantive right and the establishment of a demarcation line between torture and other forms of ill-treatment. Other human rights treaties of regional applicability, such as the African Charter on Human and People’s Rights (ACHPR or the African Charter),20 the American Convention on Human Rights (ACHR),21 and the Revised Arab Charter on Human Rights (ArCHR)22 also prohibit torture and CIDTP, with minor variations in wording. The backbone of the international framework for combating torture was established with the creation of the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, based substantially on the Declaration against Torture, and the Optional Protocol to the Convention against Torture,23 for the specific purpose of defining, implementing, and enforcing the proscription of torture and other forms of ill-treatment. In 1985, the Organization of American States (OAS), reproducing major UN human rights instruments on the regional level, adopted the Inter-American Con- vention to Prevent and Punish Torture, which contains a broader definition in Article 2, encompassing more acts of coercion than the definition provided in the CAT.24 In order to reinforce the protection from torture, the Council of Europe adopted the European Convention for the Prevention of Torture and Inhuman or Degrading Treat- ment or Punishment (ECPT) in 1987.25 It applies a more stringent approach with regard to the implementation of the prohibition of torture and its monitoring body, the Committee for the Prevention of Torture (CPT), appears as an effective control mecha- nism26 which is authorized to carry out periodic visits and inspect detention centres and prisons of the Member States of the Council of Europe with the aim of protecting detainees from torture.27

19 European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 10 December 1948, entered into force 4 November 1950), 213 UNTS 222. 20 African Charter on Human and People’s Rights (adopted 27 June 1981, entered into force 21 October 1986), CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58. 21 American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978), 1144 UNTS 123. 22 Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008). 23 Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 18 December 2002, entered into force 22 June 2006), UN GA Res. A/RES/57/199. 24 Rodley & Pollard, supra note 3, p. 51. 25 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (adopted 26 November 1987, entered into force 1 February 1989), ETS 126. 26 Herrmann, supra note 12, pp. 445-446. 27 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, CPT Standards “Substantive” Sections of the CPT’s General Reports, Imprisonment (1992), 142 Anna Karapetyan

The prohibition of torture is also enshrined in other non-binding instruments specifically designated to deal with torture and other forms of ill-treatment. Such instruments include the Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment,28 and the Principles of Medical Ethics Relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.29 The latter instrument applies to those who function in roles as health personnel, and is particularly pertinent to physicians, as the prohibition of torture against detainees is a gross contravention of medical ethics.30 Other principles, rules, and manuals have reiterated the prohibition of torture (namely the Standard Minimum Rules for the Treatment of Prisoners31 and the Manual of the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, widely known as the “Istanbul Protocol”).32

1.2. The CAT and the Committee against Torture Despite the universal consensus in favour of outlawing torture, it remains a convo- luted and controversial concept under international law. Each perpetrator seeks to characterize his or her own conduct as a non-violation of the prohibition, and governments argue that their behaviour does not qualify as torture and is therefore not outlawed under international law.33 The relatively vague definition of the prohibition of torture seems to allow a remarkable degree of discretion to the signatory States in providing their own interpretation of the concept. It is therefore necessary to identify what constitutes torture, or what is meant by the prohibition of torture, so that State-Parties to the Convention are bound to a clearly shaped and constant standard, a uniform definition without any gaps that would allow them to circumvent the rules or create obstacles to the international community put- available at: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId =09000016806ce96b (accessed 30 May 2017); See generally A. Cassese, Current Development: A New Approach to Human Rights: TheE uropean Convention for the Prevention of Torture, 83 American Journal International Law 128 (1989). 28 General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment, UN Doc. A/RES/43/173 (1988). 29 General Assembly, Principles of Medical Ethics Relevant to the Role of Health Personnel in the Protection of Prisoners, UN Doc. A/RES/37/194 (1982). 30 H. J. Burgers, H. Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, Martinus Nijhoff Publishers, Dordrecht: 1998, p. 22. 31 Economic and Social Council (ECOSOC), Standard Minimum Rules for the Treatment of Prisoners, UN Congress on the Prevention of Crime and the Treatment of Offenders (1955), Resolutions 663 C (XXIV) and 2076 (LXII), (1957/1977). 32 United Nations High Commissioner for Human Rights (OHCHR), Istanbul Protocol, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment, HR/P/PT/8/Rev.1 (2004). 33 Rouillard, supra note 5, p. 20. A Recurring Phenomenon... 143 ting pressure on incorrigible governments so as to completely eradicate, prevent, and punish torture. While all international treaties forbid torture in absolute terms, they usually neither define it nor contain a definition of the CIDTP. Article 1 of the CAT is the first legally binding provision within international law to define the term “torture”. With 161 State-Parties, the CAT contains the most widely agreed-upon definition of torture.34 Article 1 of the CAT codifies the following criteria for an action to constitute torture: first, an intentional infliction of severe physical or mental pain or suffering; second, its commission for one of the purposes enumerated within the article; and third, with the involvement or acquiescence of a public official. Nevertheless, the scope of the TCA definition was narrowed down by the so-called “lawful sanctions clause”, which excludes “pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

1.3. The meaning of the lawful sanctions clause The Declaration againstT orture explicitly excludes pain and suffering arising from lawful sanctions, while providing that torture should be defined in accordance with the Standard Minimum Rules for the Treatment of the Prisoners (SMR).35 These rules provide, inter alia, a complete prohibition of corporal punishment for disciplinary offences, designating only the application of certain disciplinary measures below the threshold of corporal punishment.36 While the SMR are relevant for disciplinary sanctions and conditions of detention, it is difficult to argue that they apply to judicial sanctions, such as judicial corporal punishments, which do not directly result from incarceration.37 When drafting the CAT, some States proposed the deletion of the considerably criticized reference to a soft law instrument such as the SMR, which would ultimately be provided with a semblance of a legally binding force even though this was beyond the intention of the States participating in the drafting process.38 The draft Conven- tion proposed by the International Association of Penal Law (IAPL) referred in its definition to “lawful sanctions not constituting cruel, inhuman or degrading treatment or punishment”,39 while the Danish delegation proposed the wording “lawful sanctions consistent with international rules for the treatment of persons deprived of their liberty” without reference to any specific instrument.40 However, the Working Group

34 United Nations High Commissioner for Human Rights (OHCHR), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Status of Ratification Interactive Dashboard, http://indicators.ohchr.org/ (accessed 30 May 2017). 35 Article 1 of the Declaration against Torture. 36 Article 31 of the SMR. 37 Ibidem. 38 A. Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement, Martinus Nijhoff Publishers, Dordrecht: 1999, p. 28. 39 Burger & Danelius, supra note 30, pp. 34-39. 40 Economic and Social Council (ECOSOC), Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, in Particular Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Commission on Human Rights, UN Doc. E/CN.4/1314 (1978), para. 47. 144 Anna Karapetyan decided not to pursue those suggestions and accepted the revised Swedish draft, excluding the reference to a contextual element and in this way opening the door to diluting the prohibition.41 Thus while several legally binding universal and regional instruments prohibit torture in general terms with no specific definition, the scope of the TCA definition was narrowed down by the lawful sanctions clause, which excludes “pain or suffering arising only from, inherent in or incidental to lawful sanctions” without any reference to the SMR.42 While the ICCPR does not include any “sanctions clause” exception to the general rule, the Human Rights Committee (HRC) has found in its case law that certain types of sanctions are permissible, which it has assessed under both national and international law, the latter taking precedent in cases of conflict.43 The ECHR does not contain any similar clause concerning lawful sanctions, but it can be inferred from the ECtHR jurisprudence on this issue that it has drawn a distinction between lawful and unlawful sanctions.44 However, the concept of lawful sanctions does not give an unfettered right to States and must be consistent with the spirit of the absolute prohibition of torture and CIDTP.45 Similarly to the CAT, the IACPPT exempted lawful measures from the prohibition of ill-treatment, providing a narrower exception in its Article 2 by stating that the use of methods and performance of acts prohibited and referred to in the definition do not fall within the meaning of the clause. Article 5 of the ACHPR encompasses no explicit exclusion, however the African Commission has concluded that such treatment may be justified in certain circumstances, even though otherwise prohibited.46 Burgers and Danelius discerned the CAT “lawful sanctions” clause as an exception to the scope of torture, but it is unclear whether the sanctions must also be in compliance with international norms in order to be lawful.47 The resulting loophole raises the question of whether lawful sanctions under domestic law are excluded from Article 1 even if they give rise to severe suffering which would otherwise be qualified as torture. One could argue that certain forms of punishment, including corporal punishment, do not fall under the exception and are clearly in violation of IHRL, however

41 C. E. Coracini, The Lawful Sanctions Clause in the State Reporting Procedure Before the Committee against Torture, 24 Netherlands Quarterly of Human Rights 305 (2006), p. 309. 42 Article 1 of the CAT. 43 HRC, Osbourne v. Jamaica (App. No. 759/1997), UN Doc. CCPR/C/68/D/759/1997 (2000), para. 9.1; Antti Vuolanne v. Finland (App. No. 265/1987), UN Doc. CCPR/C/35/D/265/1987 (1989), para. 6.4. 44 ECtHR, Dedovskiy and Others v. Russia (App. No. 7178/03), 15 May 2008, paras. 80-86; ECtHR, Archip v. Romania (App. No. 49608/08), 27 September 2011, ECtHR, Thuo v. Cyprus(App. No. 3869/07), 4 April 2017, paras. 141-149. 45 ECtHR, Tyrer v. The United Kingdom (App. No. 5856/72), 25 April 1978, paras. 33-35. 46 Association for the Prevention of Torture (APT) & Center for Justice and International Law (CEJIL), Torture in International Law: A Guide to Jurisprudence, SRO-Kundig, Geneva: 2008, p. 138. 47 Burgers & Danelius, supra note 30, p. 122. A Recurring Phenomenon... 145 this view undoubtedly has not been shared by some Islamic States when it comes to forms of punishment derived from Sharia law.48 The absence of an indication in the definition of torture that lawful sanctions must be in accordance with the international standards has led to a conclusion that it leaves some leeway, at least to a certain extent, for national legislation to avoid the prohibition by sanctioning certain methods of punishment. Thus the uniformity and universality of the definition has seemingly been undermined by the inclusion of the lawful sanctions exception, since different States have different practices when it comes to lawful and unlawful sanctions. Yet such an interpretation seems contrary to the purpose of the CAT and to the mandate of the UN in strengthening international standards and promoting universal human rights.49 The clause also cannot be upheld in light of the general rules of interpretation envisaged in Article 31 of the VCLT (or the principle expressed in Article 27). The application of corporal punishment, particularly flogging, amputation, and stoning, are unquestionably unlawful during custodial interrogation and cannot simply be perceived as lawful due to authorization in a legitimate manner through national law, as this would otherwise lead to the acceptance of all punishments regardless of their cruelty.50 Ingelse opined that removing the reference to the SMR unforeseeably offered an opening to a number of States which were reluctant to adhere to the instrument on the basis that it may infringe upon the use of corporal punishment provided in Islamic law or Sharia and the wording of the second sentence secured the willingness of these States to ratify the Convention.51 Indeed, international instruments sometimes avoid using sharp language in order to achieve a higher degree of ratification, including in some instances “as a concession to certain Islamic States.”52 Nowak posits that the lawful sanctions clause should no longer be taken into account as it is a futile provision, devoid of any meaning.53 On the other hand, Rodley acknowledges the view that a broader term for lawful sanctions refers to the concept of deprivation of liberty through imprisonment by an independent and competent court or other sanctions accepted as legitimate in almost all penal systems and by the interna-

48 Ibidem; see generally General Assembly, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/60/316 (2005), para. 27; Economic and Social Council (ECOSOC), Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, in Particular Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report of the Special Rapporteur, Mr. Nigel S. Rodley, UN Doc. E/CN.4/1997/7 (1997), paras. 7-10 & UN Doc. E/CN.4/1997/7/Add.1 (1996), para. 435. 49 Article 1(3) of the UN Charter. 50 ECOSOC, supra note 48, para. 8. 51 C. Ingelse, The UN Committee against Torture: An Assessment, Kluwer Law International, The Hague: 2001, pp. 213-214. 52 M. Nowak, Recent Developments in Combating Torture, 19 SIM Newsletter 24 (1987), p. 25. 53 Nowak considers that “the lawful sanctions clause has no scope of application and must simply be ignored.” M. Nowak, E. McArthur, The United Nations Convention against Torture: A Commentary,Oxford University Press, Oxford: 2008, p. 84. 146 Anna Karapetyan tional community, insofar as they conform with the SMR.54 While it is difficult to see how lawful imprisonment could constitute torture as defined in Article 1 of the CAT, the mere imposition of a sentence may give rise to serious psychological consequences. Accordingly, it can be concluded that the lawful sanctions clause has not become completely unnecessary and useless, however the clause has no scope of application in the context of corporal punishment. Therefore it may be stated that the lawful sanctions clause is not acarte blanche given to States Parties to determine the lawfulness of sanctions under domestic law,55 and the clause cannot be invoked by the States in order to disguise continuous violence. Ac- cordingly, judicial sanctions ought to be exempt from this exclusion where they fail to comply with IHRL standards.

2. Is corporal punishment a permissible sanction under IHRL? The purpose of this section is to identify the challenges related to the use of the lawful sanctions clause for the most severe cases of corporal punishment. Furthermore, it discusses the authentic interpretations of the treaty bodies, adopted since the inception of their operation, in determining the legal status of corporal punishment and the CI- DTP. Ultimately, the question will be raised as to whether cultural relativity is a factor in the current interpretation of lawful sanctions. It is herein argued that all forms of judicial corporal punishment must be classified cruel, inhuman and degrading punishment, while certain cases, particularly the amputation of limbs, stoning, and flogging are manifestly incompatible with Article 1 of the CAT and must be qualified as torture, despite not being explicitly recognized as such by some human rights mechanisms. It is also argued that those substantive human rights which are listed as non-derogable rights and are considered jus cogens should be objectively enforced, regardless of the cultural peculiarities relative to a specific context. 2.1. State practices Whereas practices of torture are in clear violation of both domestic and international law, the lawfulness of corporal punishment is a “grey area”56 in international law and persists in the penal codes of several States, in particular in several former British colonies and in States where the legal system is based on Islamic Sharia.57

54 ECOSOC, supra note 48, para. 8; See also, Rodley & Pollard, supra note 3, pp. 30-31. 55 Association for the Prevention of Torture, The Definition of Torture, Proceedings of an Expert Seminar, APT, Geneva: 2001, p. 20. 56 C. Giffard, The Torture Reporting Handbook: How to Document and Respond to Allegations of Torture within the International System for the Protection of Human Rights, Human Rights Center of the University of Essex, Essex: 2000, p. 14. 57 Global Initiative to End All Corporal Punishment of Children, Reports on Every State and Territory, http://www.endcorporalpunishment.org/progress/country-reports/ (accessed 30 May 2017); see also Rodley & Pollard, supra note 3, p. 428. A Recurring Phenomenon... 147

While international law strongly rejects corporal punishment for disciplinary offences in several provisions, including its prohibition in Article 31 of the SMR, in the GA resolutions, and in the rulings of the IAComHR,58 international instruments lack any explicit reference to judicial corporal punishments, leaving it up to the treaty bodies to examine. The primary goals of corporal punishment involve causing pain and suffering for various purposes, e.g. for the rehabilitation of the offender, retribution, and general or specific deterrence.59 For most forms of corporal punishment, the outcome ranges from short term suffering to permanent injuries or disfiguration, which are supposedly directed not only at amending the behaviour of those punished but also to send a strong message to other potential offenders.60 In interpreting Sharia, Indonesia, Iran, Libya, Nigeria, Pakistan, Saudi Arabia, Ye- men and several other States have regarded corporal punishment as a normal penalty for a wide variety of offences, including flogging and whipping for adultery and drinking alcohol, and the amputation of limbs for theft.61 Yet most of these States have acceded to the CAT without any reservations, despite the existence of these forms of punishment in their legal systems.62

2.2 Interpretation of the international and regional bodies Since 1949 the UN GA has dealt with several instances of corporal punishment by adopting resolutions that considered such punishment inhuman and called for the immediate abolition of judicial and administrative corporal punishment, for example in Cameroon, New Guinea, Rwanda, Togoland, and several other States.63 In 1997, Special Procedures Mandate-Holder Rodley refuted the justification of procedurally legitimate forms of corporal punishment in reliance on domestic law and reported to the Commission on Human Rights that any form of corporal punishment is contrary to the prohibition of ill-treatment and may even amount to torture.64

58 See generally General Assembly, Abolition of Corporal Punishment in Trust Territories, UN Doc. 562/ VI (1952), para. 4; Organisation of American States (OAS), Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, Resolution OEA/Ser/L/V/II.131 Doc. 26 (2008). 59 T. Miethe, H. Lu, Punishment: A Comparative Historical Perspective, Cambridge University Press, Cambridge: 2005, pp. 33-34. 60 Ibidem, pp. 33-34. 61 Global Initiative to End All Corporal Punishment of Children, Reports on Every State and Territory, http://www.endcorporalpunishment.org/progress/country-reports/ (accessed 30 May 2017). See generally M. Abbakar, No More Cracking of the Whip: Time to End Corporal Punishment in Sudan, Redress Trust, London: 2012, pp. 21, 23; see also Miethe & Lu, supra note 59, pp. 15-17, 37, 180; M. Lawan et al., An Introduction to Islamic Criminal Justice: A Teaching and Learning Manual, Higher Education Academy, London: 2011, p. 74; R. Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, Cambridge University Press, Cambridge: 2005, pp. 153-174. 62 United Nations High Commissioner for Human Rights (OHCHR), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Status of Ratification, Interactive Dashboard, available at: http://indicators.ohchr.org/ (accessed 30 May 2017). 63 General Assembly, Social Advancement in Trust Territories, UN Doc. 323/IV (1949), paras. 2, 6. 64 ECOSOC, supra note 48, para. 6; General Assembly (2005) supra note 48, paras. 18-28. 148 Anna Karapetyan

The Committee againstT orture adopted an extremely cautious and silent approach, which prevailed during the debates on State-Parties’ reports.65 For instance, during the review of the report of Mexico, the Mexican delegation did not respond to the questions of the Committee against Torture concerning the exclusion of legitimate sanctions from the concept of torture provided by domestic law.66 A similar situation took place with regard to Article 16 of the CAT, when the Com- mittee questioned the factual existence of corporal punishment in Afghanistan and Tu- nisia, and once again the delegations left these questions largely unanswered.67 In both cases the Committee did not further insist on an answer or comment on the question. At the same time, the invocation of only Article 16 with regard to corporal punishment has, in certain cases, limited such punishment to merely cruel or inhuman punishment, possibly avoiding the application of the lawful sanctions clause under Article 1. An- other instance occurred in 1990, when the Netherlands asked the Committee members to explain the lawful sanctions clause, but did not obtain any reply.68 Only in the late 1990s and early 2000s did the Committee’s position towards the cessation of corporal punishment undergo a clear change. In its concluding observations on Namibia, the Committee against Torture recommended “the prompt abolition of corporal punishment.”69 Furthermore, in its consideration of the report of Zambia it found corporal punishment to be a clear violation of Article 16 regardless of the length of the cane used as specified in the Zambia’s Prison Act.70 An important debate on the issue of corporal punishment and the lawful sanctions clause developed when the Committee considered the report of Saudi Arabia, and the Saudi delegation stated that corporal punishment was exercised under judicial and medical supervision while taking into consideration the specific features of the victim, such as his or her state of health.71 The Committee concluded that corporal punishment, particularly the amputation of limbs and flogging, were incompatible with the CAT.72 In 2015, in its concluding observations on the report of Saudi Arabia, the

65 Ingelse, supra note 51, pp. 287-288. 66 General Assembly, Report of the Committee against Torture, UN Doc. A/44/46 Supp. 46 (1989), paras. 179-201. 67 General Assembly, Report of the Committee against Torture, UN Doc. A/45/44 Supp. 44 (1990), paras. 412, 424; See also, General Assembly, Report of the Committee against Torture, UN Doc. A/48/44 Supp. 44 (1993), paras. 58-59. 68 General Assembly (1990), supra note 67, para. 456. 69 General Assembly, Report of the Committee against Torture, UN Doc. A/52/44 Supp. 44 (1997), para. 250. 70 Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention (Zambia), UN Doc. CAT/C/SR.494 (2001), para. 34. 71 Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture (Denmark), UN Doc. CAT/C/SR.519 (2002), para. 24. 72 Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture (Saudi Arabia), UN Doc. CAT/C/CR/28/5 (2002), para. 4(b). A Recurring Phenomenon... 149

Committee again expressed its deep concerns that the State-Party continued to impose corporal punishment and reiterated that Saudi Arabia “should amend its legislation in order to abolish all such forms of corporal punishment as they amount to torture and cruel, inhuman or degrading treatment or punishment, in violation of the Conven- tion.”73 It will be interesting to see Saudi Arabia’s response, and possible adjustments in accordance with the Committee’s concluding observations, in its next periodic report, which is still pending. The Committee has been reluctant to clarify the scope of lawful sanctions and has made no clear proclamations concerning the issue of corporal punishment, restricting its direct engagement in the matter to the reviews of Member States’ reports. In its concluding observations, however, the Committee has gradually recognized that certain forms of severe punishment are illegal and condemned the practices of stoning and the amputation of limbs and flogging, stating that such sanctions were incompatible with the CAT. This issue has also been interpreted in the jurisprudence of international and regional courts and committees. The leading case before the ECtHR in this regard was Tyrer v. The United Kingdom,74 in which the ECtHR was faced with the question of the compatibility of judicially-ordered corporal punishment with Article 3 of the ECHR, as administrated under the penal law of a self-governing British Island, the Isle of Man. In this case, a fifteen year old school boy was sentenced to judicial birching, a sentence administered by the police officer whilst the applicant was forced to remove his trousers and underpants for the execution of the punishment,75 and as a result of which the applicant’s skin was sore for about ten days.76 The Court asserted that punishment has to attain a certain level of severity in order to amount to torture or inhuman punishment and indicated that judicial corporal punishment constitutes a violation of Article 3 of the ECHR as in most if not all cases humiliation of the victim is one of the effects of the judicial punishment, adding that the assessment is also dependent on the circumstances of the case.77 The Court pointed out that the elements of humiliation had reached a level of seriousness that amounted to degrading punishment based on aggravating circumstances, amongst them, the requirement that the applicant display his bare posterior, although it also stated that the bare posterior was not the only or decisive factor.78 The Court’s finding that degrading punishment had occurred concerned not only the specific circumstances of the case, such as the imposition of the punishment on the bare buttocks, but in addition the Court attempted to address all incidents of judicial

73 Committee against Torture, Concluding Observation of the Second Periodic Report of Saudi (Saudi Arabia), UN Doc. CAT/C/SAU/CO/2 (2016), para. 11. 74 ECtHR, Tyrer v. The United Kingdom. 75 Ibidem, paras. 9-10. 76 Ibidem, para. 10. 77 Ibidem, para. 30. 78 Ibidem. 150 Anna Karapetyan corporal punishment, as such punishment constituted institutional violence carried out against a victim, who is treated as an object in the power of the authorities, and thus constituted an assault on his or her dignity and physical integrity.79 Although not all forms of corporal punishment absolutely fall under the prohibition, as some may not be considered sufficiently severe to reach the level of degrading punishment, the permissibility of judicial corporal punishment appears now to have been officially ruled out by the ECtHR. In 2005, the IACtHR dealt with the matter of corporal punishment in the case of Caesar v. Trinidad and Tobago. For the crime of attempted rape, the applicant was sentenced to 20 years in prison and subjected to 15 strokes with a cat-o-nine tails.80 For the administration of punishment, Caesar was forced to lie naked while his head was covered and his hands and feet were harshly tied to a metal frame in the presence of a doctor in the room.81 Afterwards, he was taken to the infirmary where he spent two months.82 After canvassing all existing international practices, including the views of the HRC and the ECtHR in the Tyrer case, the IACtHR found corporal punishment to constitute a per se violation of Article 5 of the ACHR, stressing the inherently cruel, inhuman and degrading nature of corporal punishment and declaring “corporal punishment by flogging … as a form of torture.”83 The Court considered that the nature of this punishment reflects “an institutionalization of violence, which, although permitted by the law, is a sanction incompatible with the Convention.”84 The IACtHR examined the case not only in general terms, but also in light of the particular circumstances surrounding it, such as extreme humiliation resulting from the aggravating circumstances and the mental anguish from the undue delay in carrying out the punishment: factors that were also relevant for the determination of reparations.85 When it comes to the African system, the AComHPR was faced with the issue of judicially-ordered corporal punishment, namely whipping, in the case of Curtis Francis Doebbler v. Sudan, where university students were subjected to 25 to 40 lashes for violating public order based on immorality and improper apparel.86 The administration of the punishment, which consisted of whipping with a plastic whip, left permanent scars and was carried out in public without the presence of a doctor.87 The State argued

79 Ibidem, para. 33; see also D. M. Evans, R. Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Oxford University Press: New York: 1998, pp. 88-91. 80 IACtHR, Caesar v. Trinidad and Tobago, 11 March 2005 (judgment on the merits, reparations and costs), para. 3. 81 Ibidem, para. 49(27). 82 Ibidem, para. 49(30). 83 Ibidem, paras. 51(h), 70, 88; The Court further argued that the prison doctor breached his medical ethics by permitting the execution of such punishment. 84 IACtHR, Caesar v. Trinidad and Tobago, para. 73. 85 Ibidem, para. 88. 86 IAComHR, Curtis Francis Doebbler v. Sudan (236/2000) (2003), para. 30. 87 Ibidem, paras. 30-31. A Recurring Phenomenon... 151 that the corporal punishment was justified under the domestic criminal law in force in Sudan.88 The African Commission held that the imposition of physical punishment by the State was contrary to Article 5 of the ACHPR and called on Sudan to abolish the penalty of lashes from its criminal code.89 The African Commission further asserted that there is no right for the government of a country to apply physical violence to individuals for offences, since it would be considered “tantamount to sanctioning State sponsored torture under the Charter” and contrary to the very nature of the human rights contained in the Charter.90 The first opportunity for theR H C to consider the matter of the compatibility of judicially-imposed corporal punishment with the ICCPR occurred in the communication of Osbourne v. Jamaica, where the applicant was convicted for robbery and illegal possession of firearms, and consequently sentenced to 15 years in a prison andten strokes by a tamarind switch.91 At the time of the submission of the application, the punishment had not yet been carried out, however the HRC had knowledge of the infliction of such forms of punishment in Jamaica from another communication.92 The only argument Jamaica used as justification was that the imposition of this punishment was permissible under its Constitution.93 The HRC stated that regardless of the brutal nature of the criminal act, the imposition of corporal punishment was incompatible with Article 7 of the ICCPR and requested the State to refrain from administrating such a sentence.94 The RH C posited that the mere imposition of a sentence with a tamarind switch breached Article 7, whether or not the punishment was actually carried out.95 The HRC did not address any possible aggravating factors and instead issued a general view regarding the prohibition of corporal punishment as a violation of Article 7. The HRC has also held that certain forms of corporal punishment and disciplinary sanctions duly prescribed in domestic law were to be classified as torture based purely on the severity, purpose, and nature of the punishment.96 It also strictly condemned corporal punishment in a number of its concluding observations.97

88 Ibidem, para. 34. 89 Ibidem, paras. 42, 44. 90 Ibidem, para. 42. 91 HRC, Osbourne v. Jamaica (App. No. 759/1997), UN Doc. CCPR/C/68/D/759/1997 (2000), para. 2.1. 92 Ibidem. para. 3.3. 93 Ibidem. paras. 4.2-5.1. 94 Ibidem. paras. 9.1, 11; See also, HRC, Boodlal Sooklal v. Trinidad and Tobago (App. No. 928/2000), UN Doc. CCPR/C/73/D/928/2000 (2001), para. 4.6; Errol Pryce v. Jamaica (App. No. 793/1998), UN Doc. CCPR/C/80/D/793/1998 (2004), para. 6.2. 95 HRC, Higginson v. Jamaica (App. No. 792/1998), UN Doc. CCPR/C/74/D/792/1998 (2002), para. 4.6. 96 International Human Rights Institutions, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.7 (2004), paras. 130, 151. 97 HRC, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, Iraq, UN Doc. CCPR/C/79/Add.84 (1997), para. 12; Sudan, 152 Anna Karapetyan

While the provisions governing the prohibition of torture and CIDTP do not expressly contemplate the abolition of corporal punishment, the international and regional treaty bodies have recognized that such punishments are incompatible with the prohibition of torture and CIDTP under international law. Ultimately, corporal punishment ought to be qualified as torture due to evolving standards in IHRL as reflected in the ECtHR case law.

2.3. The line between torture and other forms of ill-treatment Notwithstanding the fact that almost all regional and international Courts and Committees have categorized corporal punishment as constituting either torture or CIDTP, the question of which category of the prohibition is breached by judicial corporal punishment remains unclear. Nowak pointed out that corporal punishment has a humiliating and degrading component, and argued that all forms of corporal punishment, without exception, must be considered CIDTP in violation of both customary and treaty law.98 First of all, the potential use of the lawful sanctions clause by a State-Party would not automatically make such practices compatible with the CAT as Article 16, which prohibits CIDTP, contains no exceptions clause. Accordingly, those practices fulfilling all the elements of torture, but exempt from Article 1 due to the lawful sanctions clause, would still amount to a violation of Article 16 in spite of the lawfulness of the sanctions under domestic law, and accordingly the State-Party would be in breach of its international obligations under the CAT.99 The consideration of CIDTP involved in the second part of the Convention’s title was deemed necessary, as a considerable number of obligations applied exclusively to torture according to the wording of the Convention. The creation of two categories has important legal repercussions with respect to the possibility of employing the various procedures and to the extent of the obligations binding on the State-Parties. Rodley stressed that the distinction is of cardinal importance as only torture appears “automatically to be crime under international law entailing the individual criminal responsibility of the perpetrator.”100 Notwithstanding the non-derogable nature of the overall prohibition of torture and CIDTP in a myriad of universal and regional human rights treaties, Article 2 of the CAT provides that no exceptional circumstances whatsoever may be invoked as a justification of torture, meaning that this restriction is limited only to torture, thereby

UN Doc. CCPR/C/79/Add.85 (1997), para. 9; Libyan Arab Jamahiriya, UN Doc. CCPR/C/79/Add.101 (1997), para. 11; Cyprus, UN Doc. CCPR/C/79/Add.88 (1998), para. 16, Lesotho, UN Doc. CCPR/ C/79/Add.106 (1999) para. 20; Sri Lanka, UN Doc. CCPR/CO/79/LKA (2003), para. 11; Yemen, UN Doc. CCPR/CO/84/YEM (2005), paras. 15-16. 98 General Assembly, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/HRC/13/39/Add.5 (2010), para. 209. 99 Coracini, supra note 41, p. 317. 100 Rodley & Pollard, supra note 3, p. 444. A Recurring Phenomenon... 153 expressly precluding CIDTP and putting into question the absolute nature of the prohibition of other forms of ill-treatment.101 Due to the blurred interpretation of the Convention with regard to the issue of the delineation between the two forms of treatment, a dilemma has been created for States concerning the obligation to prosecute perpetrators of ill-treatment. The Convention only requires States to punish torture under Article 4, without any reference to CIDTP, which tends to operate in favour of governments who attempt to circumvent the prohibition of torture by avoiding the requisite level of severity that amounts to torture.102 In addition, General Comment 2 also deals with the categorization of torture as a non-derogable and peremptory norm, while making no explicit indication as to other forms of ill-treatment.103 The Convention specifies that torture and CIDTP are not coextensive and addresses acts of a lesser severity in Article 16.104 Article 16 neither explicitly prohibits cruel, inhuman or degrading treatment nor defines the term, leaving the parameters of CIDTP open to interpretation.105 Rodley suggests that the Committee against Torture implicitly reintegrates other forms of ill- treatment into the same sort of status as torture via the preventive measures which must be applied, not only to torture but also to other forms of ill-treatment according to Article 16, and further postulates that while absoluteness is a matter of interpretation, it is impossible to read the Convention in good faith without reaffirming the absolute nature of all aspects of the rule.106 Shany stressed that the proposition that States Par- ties can invoke international provisions in order to derogate from the prohibition of ill-treatment falling short of torture is not an express reflection of lex lata,107 while Gaer considered that the prohibition of two degrees of illegality is an absolute human right.108 It thus appears that the non-derogability dimension applies pari passu to all aspects of the rule.109 In 2003, the Committee against Torture attempted to draw a line between Articles 1 and 16 of CAT with regard to corporal punishment, taking into account the purpose of its imposition. It declared that the infliction of flogging as punishment would amount to a violation of Article 1 if the purpose was to cause pain, and a violation of Article 16

101 Article 2 of the CAT. 102 J. Harper, Defining Torture: Bridging the Gap Between Rhetoric and Reality, 49 Santa Clara Law Review 893 (2009), p. 903. 103 Committee against Torture, General Comment 2 (GC), UN Doc. CAT/C/GC/2 (2008), para. 1. 104 Article 16 of the CAT. 105 J. Parry, Torture Nation, Torture Law, 97 Georgetown Law Journal 1001 (2009), p. 1037. 106 Rodley & Pollard, supra note 3, p. 354. 107 Y. Shany, The Prohibition against Torture and Cruel, Inhuman, and Degrading Treatment and Punishment: Can the Absolute Be Relativized under Existing International Law? 56 Catholic University Law Review 837 (2007), p. 858. 108 F. Gaer, Opening Remarks: General Comment No 2, New York City Law Review 187 (2008), p. 187. 109 N. Rodley, The Prohibition of Torture: Absolute Means Absolute, 34 Denver Journal of International Law and Policy 185 (2006), p. 185. 154 Anna Karapetyan if the purpose was the humiliation of the victim.110 This approach leaves unaddressed the issue of other forms of punishment with severely injurious manifestations that appear to per se meet the requirements of torture despite lacking an intent to cause pain and instead aiming at the humiliation of the victim. In regional systems, notably in Europe and the Americas, the severity of suffering is an essential factor for distinguish- ing torture from cruel, inhuman or degrading punishment.

2.4. Cultural relativism and the prohibition of torture This section addresses the issue whether “cultural defences” to allegations of violations of the prohibition of torture are accepted by the human rights treaty bodies. It argues that while international law must remain mindful of traditional and cultural differences, this does not mean that cultural traditions can serve as justification for the failure to comply with core human rights treaties. Cultural relativism ought to be a limited source of interpretation, as the idea of human rights of an exclusively local nature is incompatible with the existing international standards, and the misuse of traditions would have a destructive impact on the IHRL system. The acceptance of some forms of corporal punishment not only emanates from the lawfulness of sanctions in domestic criminal law, but also lies in the culture of a society.111 The process of the universalization of human rights has been challenged by the obstacle of the cultural and geographical peculiarities of certain States, which frustrate the equal implementation of human rights on a universal level. In particular, some States claim that their local cultural specificities are sine qua non conditions for establishing the scope and applicability of civil and political rights in a given society, leading to culturally relative norms and ignoring the existence of trans-boundary moral and legal standards.112 Thus relativists subscribe to the view that due to the absence of an absolute moral, ethnic or cultural truth, no universal norms exist, insisting that cultural practices cannot be judged by outsiders.113 In other words, a society may have a unique perception of what constitutes torture, and certain practices, despite being seen as amounting to torture or CIDTP by international bodies, may not be viewed as such within a given

110 Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention (Yemen), UN Doc. CAT/C/SR.583 (2003), para. 10. 111 O. Ruiz-Chiriboga, Indigenous Corporal Punishment in Ecuador and the Prohibition of Torture and Ill-Treatment, 28 American University International Law Review 4 (2013), p. 978. 112 E.g. The representatives of Saudi Arabia in the UN highlighted the role of the principle of cultural relativism in the promotion of human rights, underlining their cultural traditions as justification for a different interpretation of human rights standards. UN Doc. A/C.3/32/SR.43 (1977), paras. 11-13; see also J. Dudley, Human Rights Practices in the Arab States: The Modern Impact of Shari’a Values, 15 Georgia Journal of International & Comparative Law 55 (1981), p. 92. 113 E. Zechenter, In the Name of Culture: Cultural Relativism and the Abuse of the Individuals, 53 Journal of Anthropological Research 319 (1997), pp. 323-324, 332; see also C. M. Cerna, Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts, 16 Human Rights Quarterly 740 (1994), pp. 740-744. A Recurring Phenomenon... 155 society or even in the eyes of the victim subjected to such punishment.114 This gives rise to claims of legitimacy or justifications for alleged violations on the basis of cultural relativism.115 However, Zechenter stressed that if the universality of human rights is swallowed by a variety of competing legitimacies, and if human rights have different meanings in different societies, then the entire IHRL system would be undermined and rendered meaningless.116 Proponents of cultural relativism may argue that the doctrine generates a legal defence for States vis-à-vis their duty to observe human rights.117 Yet, no international human rights treaty allows for the modification of certain rights on the basis of local cultural traditions. Furthermore, all human rights treaties reiterate the possession of human rights equally by all individuals, based on the simple fact of being human.118 Only the ECHR provides, in Article 56(3), that “[t]he provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.”119 However, reading this provision as supporting the doctrine of cultural relativism has been rejected in the Tyrer case, where the ECtHR had stressed that in its determination of a violation of the ECHR it cannot be influenced by the domestic criminal law standards of the Member States.120 It also noted that judicial corporal punishment was not necessary for the maintenance of law and public order, regardless of the acceptance of such practices by local public opinion, as suggested by the British Government.121 Confirming the trans-boundary nature of human rights law, this judgment consequently supported the view that human rights are not negotiable and cannot be ignored or modified on the basis of cultural relativism. Even when it comes to customary international law, cultural relativists exclude legitimate criticisms by external authorities, arguing that the notions of non-intervention and self-determination are the legal bases for cultural relativism.122 However this is

114 L. A. Wendland, Handbook on State Obligations under the UN Convention against Torture, APT, Geneva: 2002, p. 25. 115 D. Donoho, Relativism Versus Universalism in Human Rights: The Search for Meaningful Standards, 27 Stanford Journal of International Law 345 (1999), p. 377. 116 Zechenter, supra note 113, p. 320. 117 J. Donnelly, Cultural Relativism and Universal Human Rights, 6 Human Rights Quarterly 400 (1984), p. 410. 118 T. Higgins, What is a Human Right? Universals and the Challenge of Cultural Relativism, 11 Pace International Law Review 107 (1999), p. 112. 119 The wording of “such territories” refers to colonial territories, as para. 4 of Article 56(3) extends to all or any of the territories providing that “[a]ny State which has made a declaration in accordance with paragraph 1 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court as provided by Article 34 of the Convention”; See generally F. Lenzerini, The Culturalization of Human Rights Law, Oxford University Press, Oxford: 2014, pp. 116-212. 120 ECtHR, Tyrer v. The United Kingdom, para. 38. 121 Ibidem. 122 F. Teson, International Human Rights and Cultural Relativism, 4 Virginia Journal of International Law 869 (1984-1985), pp. 879-880, 882. 156 Anna Karapetyan illusory, as the internal self-determination which underlies the obligation of the non- intervention principle requires respect for basic human rights of all individuals and the development of independent socio-economic, political, and cultural principles har- monized with IHRL standards.123 This reading of the principle is reflected in and supported by the Charter of the United Nations124 and was agreed upon by the European States in the Helsinki Accords.125 While considering both radical universalism and radical relativism as misguided and inappropriate, Donnelly allowed for a weak cultural relativism, an intermediate position mixing universalism and relativism in such domains as, inter alia, the right to political participation or determination of political mechanisms as well as several economic, social and cultural rights.126 Despite the cross-cultural variations, Donnelly argues that the principle of self-determination could not be a cloak or justification for despotism and threats against human dignity, including the prohibition of torture, and that a practice which arguably presents a practice of modern barbarism could not be an expression of local cultural traditions.127 Furthermore, the UN Special Rapporteur, Coomaraswami, on violence against women has indicated that when it comes to practices such as the amputation of limbs, stoning, and flogging, “cultural diversity should be celebrated only if those enjoying their cultural attributes are doing so voluntarily.”128 Another glaring deficiency of cultural relativism is that it fails to acknowledge culture as a dynamic historical process, whereby existing customs are not necessarily accepted by the majority of a community’s members.129 The debate regarding the universality of human rights and socio-cultural differences was in the limelight during the second UN World Conference on Human Rights. The Vienna Declaration and Programme of Action, which was adopted at this conference on 25 June 1993, repeatedly reaffirmed the universality of human rights. Paragraph 5 of the Declaration provided that human rights must be respected globally “in a fair and equal manner” and that “it is the duty of States, regardless of their political, eco-

123 Ibidem; see also C. Mojekwu, The African Perspective in International Human Rights, Law in: J. Nelson, V. Green (eds.), International Human Rights: Contemporary Issues, Human Rights Publishing Group, New York: 1980, p. 89; D. R. Gilmour, The Meaning of „Intervene” within Article 2 (7) of the United Nations Charter: An Historical Perspective, 2(16) International and Comparative Law Quarterly 330 (1967), pp. 330-351. 124 Articles 1 and 55 of the UN Charter; with regard to the non-intervention principle in Article 2(7) of the UN Charter, various scholars posit that criticism and discussion concerning to the enforcement of human rights does not constitute “intervention”. 125 Conference on Security and Co-Operation in Europe Final Act (Helsinki), Declaration on Principles Guiding Relations between Participating States (1975), I. Sovereign Equality, Respect for the Rights Inherent in Sovereignty & VIII. Equal Rights and Self-determination of People, pp. 4, 7. 126 Donnelly, supra note 117, pp. 401-402, 406-408. 127 Ibidem, pp. 413-414. 128 T. Franck, Are Human Rights Universal? 1(80) Foreign Affairs (2001), p. 198. 129 A. D. Renteln, Corporal Punishment and the Cultural Defense, 73 Law and Contemporary Problems 253 (2010), p. 256; see also Zechenter, supra note 113, p. 332. A Recurring Phenomenon... 157 nomic and cultural systems, to promote and protect all human rights and fundamental freedoms.”130 As to the qualification of the lawful sanctions clause, it can be perceived as subjective since the lawfulness of sanctions varies between States in light of their particular political, cultural, and religious traditions. Still, the notion of fundamental human rights to which everyone is entitled is prima facie universal and the prohibition of torture is absolute in a substantive part of treaty law and in addition in customary international law, which cannot be overridden by any particular cultural imperatives. Indeed, the invocation of cultural relativity in order to mask oppression is cynical,131 and such claims should at least meet the minimum standards of human dignity. Furthermore, maintaining respect for cultural identities and the value of diversity cannot deprive human rights law of its substantive core, as can be gleaned from both universal and international treaties, which tender a uniform articulation of the absolute prohibition of torture132 and those human rights which are listed as non-derogable rights and are considered jus cogens should, thus, be objectively enforced, regardless of peculiarities relative to a specific context. Lastly, there is no disagreement as to the absolute prohibition of torture as no State considers torture a form of cultural heritage.133 In fact, even when it comes to religious grounds for resorting to local practices, there is a general agreement of the importance of human dignity in Sharia as the basis of religious values.134 Thus cultural relativism cannot be used as a justification for corporal punishment based on the argument that human dignity can be tied to various cultural, philosophi- cal, or religious conceptions. Ultimately, the idea of punishment such as imprisonment is to restrain offenders from committing crimes and provide correctional treatment rather than to respond to criminal behaviour with further crimes under IHRL.

2.5. State Obligations This section illustrates in particular a number of relevant aspects associated with the implementation of internationally-prescribed principles of State responsibility, eluci- dating the relationship between principles of State responsibility and human rights, in

130 The Vienna Declaration and Programme Action (adopted 24 June 1993), UN Doc. A/Conf. 157/24 (Part 1), at 20-46 (13 October 1993); 172 States participated in the adoption of the Vienna Declaration. 131 A. An-Naim, Towards a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman and Degrading treatment or Punishment, in: A. Abdullahi (ed.), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, University of Pennsylvania Press, Philadelphia: 1995, p. 19. 132 Zechenter, supra note 113, pp. 320-321; see also Article 5 of the UDHR; Articles 7 and 4(2) of the ICCPR; Articles 3 and 15(2) of the ECHR; Articles 5(2) and 27(2) of the ACHR; Article 5 of the ACHPR. 133 B. Kausikan, An East Asian Approach to Human Rights, 2 Buffalo Journal of International Law 263 (1996), p. 265. 134 H. Bielefeldt, “Western” versus “Islamic” Human Rights Conceptions? A Critique of Cultural Essentialism in the Discussion of Human Rights, 28(1) Political Theory 90 (2000), p. 109. 158 Anna Karapetyan particular the prohibition of torture. At the international level, there are a number of specific provisions aimed at more effectively combating torture. Article 2(1) of the TCA states that “effective legislative, judicial and administrative or other measures [shall be taken] to prevent acts of torture in any territory under its jurisdiction.”135 The necessary measures enumerated in this provision are mandatory but not exhaustive, as indicated by the word “or”, while the mandatory nature of the requirement of effectiveness is emphasized.136 In its reports, the Committee against Torture has stated that non-effective legislative and administrative measures in preventing torture do not comply with the requirements set by the CAT, and effective measures have been interpreted as constituting all appropriate measures for the protection of a society from acts of torture.137 In order to provide full effect to the CAT, the Committee against Torture affirmed that the term “legislative measures” requires States to ensure the transposition and adoption of the definition as set out in the CAT.138 The definition must encompass all component factors of absolutely prohibited acts of torture, without any derogation in domestic criminal legislation, while also classifying torture as a general offence.139 While there is no explicit indication as to the timeframe for the implementation of effective measures, the Committee against Torture has generally required States to proceed with prompt amendments of domestic penal legislation.140 Nowak has asserted that the obligation to refrain from torture (obligation to respect), as implicitly stated in Article 2(1) of the CAT, is absolute and cannot be subject to progressive realization.141 The urgent measures must take effect immediately and States must bear in mind the absolute nature of the prohibition of torture at all times. Thus, a consistent understanding of States’ responsibilities with regard to torture involves the positive obligations to respect, protect and fulfil human rights142 by taking

135 Article 2(1) of the CAT. 136 Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention (Chile), UN Doc. CAT/C/SR.77 (1991), para. 22; (Morocco), UN Doc. CAT/C/SR.203 (1994), para. 51; (Columbia), UN Doc. CAT/C/SR.238 (1995), para. 35. 137 General Assembly, Report of the Committee against Torture, UN Doc. A/50/44 (1995), para. 71; Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture (Nepal), UN Doc. CAT/C/ NPL/CO/2 (2007), para. 13. 138 Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture (Congo), UN Doc. CAT/C/DRC/CO/1 (2006), para. 5. 139 Ibidem, para. 5; General Assembly, Report of the Committee against Torture, UN Doc. A/51/44 (1996), para. 114. 140 General Assembly, Report of the Committee against Torture, UN Doc. A/56/44 Supp. 44 (2001), para. 129. 141 Nowak & McArthur, supra note 53, pp. 115-116. 142 S. Marks, F. Azizi, Responsibility for Violations of Human Rights Obligations: International Mechanism, in: C. James et al. (eds.), The Law of International Responsibility, Oxford University Press, Oxford: 2010, p. 731. A Recurring Phenomenon... 159 immediate steps to ensure the transposition and adoption of the definition incorporating all component factors of absolutely prohibited acts of torture in domestic criminal legislation.

Conclusions

Despite the myriad of legally binding obligations on State-Parties envisaged in universal and regional human rights law instruments for the purpose of eradicating torture – generally acknowledged to be an atrocious violation of human dignity – the legal meaning of the term torture remains largely unclear. Disingenuous interpretations of the definition of torture by States and the lack of effective enforcement mechanisms have posed the biggest challenge in relation to compliance with IHRL. One of the most pressing issue is thus to strengthen the enforcement mechanisms of relevant human rights treaties, as State practices have demonstrated that even the existing provisions prohibiting torture are not strictly implemented in national systems. This non-compliance is the result of substantial deviation by States from the CAT definition of torture within their national legislation, diminishing the enforceability of States’ international obligations and the overall effect of the prohibition. At the same time, the CAT focuses mainly on defining torture but fails to do the same with respect to CIDTP. Furthermore, the recommendations and concluding observations of the Committee against Torture appears inconsistent in classifying an act as either torture or CIDTP. The combination of these facts operates to attenuate the concept of the prohibition of CIDTP. Thus, clarification of the concepts and the relationship between them and the development of stable international mechanisms for combatting torture and CIDTP remain pivotal. One of the most efficient ways of revealing the practices of torture is the establishment of National Preventive Mechanisms (NPM) through the ratification of the Op- tional Protocol to the CAT (OPCAT), which allows for inspections of local detention facilities and for the initiation of a constructive dialogue with competent authorities in order to initiate investigations into every single allegation of torture and other forms of ill-treatment and monitor the implementation of the Committee’s recommendations and proposals.143 While challenges associated with the functional independence of NPMs remain,144 the creation of such mechanisms can be seen as a step forward toward the local prevention of torture, in particular corporal punishment. The compliance body of OPCAT is the Subcommittee on Prevention of Torture (SPT), which having a particular resonance

143 Article 19(b) and (c) of the OPCAT; R. Murray, National Preventive Mechanisms under the Optional Protocol to the Torture Convention: One Size Does Not Fit All, 26 Netherlands Quarterly of Human Rights 487 (2008), pp. 503-505; see also M. Nowak, Fact-Finding on Torture and Ill-Treatment and Conditions of Detention, 1 Journal of Human Rights Practice 101 (2009), p. 103. 144 Murray, supra note 143, pp. 497-501. 160 Anna Karapetyan and encompassing complementary efforts works toward the prevention of torture by carrying out regular and transparent visits to places of detention, following up on the recommendations to the States Parties in the form of confidential reports.145 Neverthe- less, these reports may be published in case a State fails to cooperate or improve the situation in accordance with the recommendations.146 The effective protection of individuals and the worldwide eradication of torture will also likely be achieved through the operation of Article 21 of the CAT, which provides that “[a] State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention.”147 Thus the Committee againstT orture should not only enhance the complementary efforts of the SPT within the framework of close cooperation with the NPM and individual States for the prevention of torture, but also should encourage States Parties to the Convention to use the procedures enshrined in Article 21, which will strengthen the effective enforcement of the Convention’s provisions. The widespread eradication of physical chastisement is a manifestation of its rejection as a prohibited form of CIDTP and/or torture. Although corporal punishment has disappeared in large parts of the world, a number of States still adhere to the practice of rendering corporal punishment. However, gradual developments towards the universal abolition of corporal punishment are visible. For instance, following the concluding observations and recommendations of the Committee against Torture, Qatar amended its law regulating penal and correctional institutions and in 2009 abolished flogging as a disciplinary measure.148 Another notable development is related to the Islamic Republic of Pakistan, which initially lodged reservations to Article 7 of the ICCPR and several articles of CAT, stating that the provisions should be applied to the extent that they are not contrary to the constitution of Pakistan and Sharia law. Inasmuch as several States Parties objected to those reservations, emphasising that they gave rise to uncertainties and ambiguities in relation to Pakistan’s obligations under the respective treaties, Paki- stan yielded to the political pressure and partially withdrew its reservations in 2011.149 Ultimately, apart from the destructive effects of corporal punishment, embodying a grievous harm directed at a victim, the practice has broader consequences on the entire surrounding community. Besides physical injuries, other severe and permanent damage occurs, including but not limited to chronic psychological distress, feelings of shame

145 Article 16(4) of the OPCAT. 146 F. Ledwidge, The Optional Protocol to the Convention against Torture (OPCAT): A Major Step Forward in the Global Prevention of Torture, 17 Helsinki Monitor 69 (2006), pp. 73-75, 81. 147 Article 21 of the CAT. 148 Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention (Qatar), UN Doc. CAT/C/QAT/2 (2011), para. 27. 149 Pakistan, ICCPR Reservations and Declarations, http://www.bayefsky.com/pdf/pakistan_t2_ccpr. pdf; Pakistan, CAT Reservations and Declarations, http://www.bayefsky.com/pdf/pakistan_t2_cat.pdf (both accessed 30 May 2017). A Recurring Phenomenon... 161 and humiliation, inability to trust others, and severe insomnia and depression, resulting in aggressive behaviour by the victim towards others.150 Corporal punishment thus has devastating effects on the entire community, and it is rightly regarded as “an effective means of […] striking fear in society.”151 Corporal punishment must be prohibited in all circumstances; and no derogation, limitation, or relativisation ought to be permitted. The fight against torture, and in particular corporal punishment, is far from being effectively tackled on the international and regional levels and vigorous efforts must be undertaken for the eventual eradication of torture and other forms of ill-treatment. In particular, the human rights treaty bodies must initiate a constructive dialogue with competent authorities through the NPMs in order to urge State-Parties to abolish all forms of corporal punishment through legislative reforms, and to amend domestic law to bring it into conformity with the State Parties’ obligations under international human rights law.

150 S. Twiss, Torture, Justification, and Human Rights: Toward an Absolute Proscription, 29 Human Rights Quarterly 346 (2007), p. 358. 151 Abbakar, supra note 61, p. 43.

XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016h 2016 PL ISSN 0554-498X

Aleksandra Rychlewska**

The nullum crimen sine lege principle in the European Convention of Human Rights: the actual scope of guarantees

Abstract: The principle of nullum crimen sine lege expresses an old idea that only the law can prescribe a particular act as punishable. It is commonly understood as a requirement of sufficient definiteness of an offence, in particular – of a statutory description of an offence before it has been committed (lex scripta, lex praevia), and of clarity and precision in criminal provisions so as to enable an individual to conform with them (lex certa), as well as their strict interpretation (lex stricta). Nowadays the principle is an internationally recognized human right to foreseeable criminalization, guaranteed by, inter alia, Article 7 of the European Convention on Human Rights. However, the European Court of Human Rights seems to formulate two slightly different requirements on its basis, namely that the application of criminal law must be foreseeable for an individual and coherent with the “essence of an offence”. One may question whether this can serve as an adequate “shield” from arbitrariness on the part of State authorities. Nevertheless, the core aim of such a flexible approach is not to promote legal security for potential perpetrators, but to achieve better protection of human rights in general.

Keywords: ECHR, ECtHR, European Convention on Human Rights, European Court of Human Rights, nullum crimen sine lege

INTRODUCTION

The principle of nullum crimen sine lege, expressing the idea that only the law can prescribe a particular act as punishable, is one of the fundamental principles of modern criminal law. Derived from the era of Enlightenment, it is commonly understood as a requirement that an offence be sufficiently defined, but one can draw from it further postulates, namely: that an offence needs to be previously constituted in an act of par-

* Ph.D. candidate in the Department of Criminal Law, Jagiellonian University in Kraków (Poland). This article is part of a research project financed by the National Science Centre, Poland, granted pursuant to the Decision No. DEC-2014/2015/N/HS5/01852. 164 Aleksandra Rychlewska liament (lex scripta, lex praevia); that its legal basis should be clear and accessible to an individual (lex certa); and that judges cannot use analogy or a broad interpretation to the detriment of a perpetrator (lex stricta). It is, therefore, a directive addressed to state power (the legislative and judicial branches) to make proper laws and to apply them in a proper manner. On the other hand, it is also a guarantee to individuals that they will not bear criminal responsibility until they commit an act previously prescribed as punishable by a legal provision, or to put it differently, that they will havefair warning before being punished. This is the reason why the principle is said to be a part of the more general concept of the rule of law – the requirement of a legal basis for all activities of state authorities and, at the same time, the foreseeability of states’ use of coercive power. What is important from the point of view of this paper is that the nullum crimen sine lege principle also embodies an internationally recognized human right – the right not to be punished without a legal basis. In terms of the European system of human rights protection, this right is set out in Article 7 of the European Convention on Human Rights (ECHR or Convention), the first paragraph of which declares that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

S. Glaser, Nullum Crimen Sine Lege, 24 Journal of Comparative Legislation and International Law 29 (1942), p. 33; A. Zoll, in: A. Zoll (eds.), Kodeks karny. Część ogólna. Komentarz. Tom I [The penal code. General part. Commentary. Volume I], Wolters Kluwer, Warszawa: 2007, pp. 34-49. See also the judgment of Trybunał Konstytucyjny (the Constitutional Tribunal of Poland) of 5 May 2004, P 2/03, OTK-A 2004, No. 5, item 39. K.S. Gallant, The Principle of Legality in International and Comparative Criminal Law, Cambridge University Press, Cambridge: 2009, p. 15; M. Królikowski, R. Zawłocki, Prawo karne [Criminal law], Wydawnictwo C.H. Beck, Warszawa: 2015, p. 84. See generally J. Raz, The Authority of Law: Essays on Law and Morality, Oxford University Press, Oxford: 2009, pp. 210-232. D.J. Harris, M. O’Boyle, C. Warbrick, Law of the European Convention on Human Rights, Butterworth, London: 1995, p. 274; P. van Dijk, G.J.H. van Hoof, Theory and practice of the European Convention on Human Rights, Kluwer Law International, The Hague: 1998, p. 485; F.G. Jacobs, C. Ovey, R.C.A. White, The European Convention on Human Rights, Oxford University Press, Oxford: 2010, p. 296. See also B. Kunicka-Michalska, Projekt Kodeksu karnego w świetle art. 7 Europejskiej Konwencji o Ochronie Praw i Podstawowych Wolności Człowieka [The project of the Polish Penal Code in the light of Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms], in: T. Bojarski, E. Skrętowicz (eds.), Problemy reformy prawa karnego [Problems of criminal law reform], Lubelskie Towarzystwo Naukowe, Lublin: 1993, p. 82. The second paragraph of Article 7 provides that para. 1 “shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations,” which means, in general, that the prosecution of war crimes committed during the Second World War is not contrary to the ECHR. See J.G. Merrills, The development of international law by the European Court of Human Rights, Manchester University Press, Manchester: 1988, p. 207; M. Balcerzak, Zasada nullum crimen sine lege w kontekście ścigania zbrodni wojennych i zbrodni przeciwko ludzkości na tle orzecznictwa Europejskiego Trybunału Praw Człowieka [The principle of nullum crimen sine lege in the context of prosecution of war crimes and crimes The nullum crimen sine lege principle... 165

The importance of thenullum crimen sine lege principle in the ECHR system seems indisputable, as Article 15 of the ECHR provides that the right conferred by Article 7 cannot be derogated even in time of war or other public emergency. Bearing in mind that the State Parties to the ECHR are obliged to observe the engagements undertaken, the system created by the ECHR constitutes the minimum standard of human rights protection. This is especially true since the standard is recognised by the Courtof Justice of the European Union. Notably, the Constitutional Tribunal of Poland recognizes it as well. The European Court of Human Rights (ECtHR or Court) was established on the basis of Article 19 of the ECHR to ensure state’s compliance with its obligations. It has consistently confirmed the prominent place of the nullum crimen sine lege principle in the ECHR system. As pointed out in many rulings, “it should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.” It is worth noting that the ECtHR is the main institution entitled to construe the provisions of the ECHR (Article 32 of the Convention). Furthermore, it exercises its powers on a broad scale. One can say that the jurisprudence of the ECtHR is a good example of judicial activism, i.e. the judiciary developing law to achieve certain goals. A leading principle in this context seems to be that of effectiveness, i.e. to make the protection of human rights “practical and effective” and not “theoretical and illusory”.10 While the ECHR is a Charter of human rights, embodying principles rather than rules, it is openly acknowledged that the ECtHR is empowered with a wide range of discretion when applying it.11 As a con- against humanity in the light of the European Court of Human Rights case-law], in: T. Jasudowicz, M. Balcerzak, J. Kapelańska-Pręgowska (eds.), Współczesne problemy praw człowieka i międzynarodowego prawa humanitarnego [Contemporary issues in human rights and international humanitarian law], TNOiK Dom Organizatora, Toruń: 2009, pp. 440-441. P. Hofmański, in: L. Garlicki (ed.), Konwencja o Ochronie Praw Człowieka i Podstawowych Wolności. Komentarz do artykułów 1–18. Tom I [Convention for the Protection of Human Rights and Fundamental Freedoms. Commentary on Articles 1-18. Volume I], Wydawnictwo C.H. Beck, Warszawa: 2010, pp. 466-467. See also E. Brems, Human Rights: Minimum and Maximum Perspectives, 9 Human Rights Law Review 349 (2009), pp. 350-353. Case C-63/83 Regina v Kent Kirk [1984] ECR 2689, para. 22. See also B. de Witte, The use of the ECHR and Convention case law by the European Court of Justice, in: P. Popelier, C. Van De Heyning, P. Van Nuffel (eds.), Human Rights Protection in the European Legal Order: The Interaction Between the European and the National Courts, Intersentia, Cambridge: 2011, p. 17; Ch. Peristeridou, The Principle of Legality in European Criminal Law, Intersentia, Cambridge: 2015, p. 6, pp. 178-220. See the judgments of the Constitutional Tribunal of Poland of 18 October 2004, P 8/04, OTK-A 2004, No 9, item 92, and of 17 May 2012, K 10/11, OTK-A 2012, No 5, item 51. A. Mowbray, The Creativity of the European Court of Human Rights, 5(1) Human Rights Law Review 57(2005), p. 72; L.J. Clements, European Human Rights. Taking a Case under the Convention, Sweet & Maxwell, London: 1994, p. 155. See Merrills, supra note 4, p. 231. 10 K. Starmer, European Human Rights Law, Legal Action Group, London: 2000, pp. 155, 158-160. 11 Merrills, supra note 4, p. 34. This, of course, can be subject to criticism, since the danger of the ECtHR being a policy-making body is not unreasonable. In this respect, see ibidem, p. 80; M. Forowicz, 166 Aleksandra Rychlewska sequence, even though the ‘traditional’ rules concerning the interpretation of treaties, namely Articles 31 to 33 of the Vienna Convention on the Law of Treaties (Vienna Con- vention), are pertinent, the ECtHR still reads the ECHR in its own way. The doctrine of an “autonomous concept” provides a good example. In the context of Article 7 the Court has stated that in its interpretation of the concept of a “penalty”, it remains free to go behind appearances and to assess for itself whether a particular measure amounts in substance to a penal response to a “criminal offence”. In particular, a preventive detention order might be deemed as a penalty and, accordingly, falls within the protection of the nullum crimen (nulla poena) sine lege principle.12 On the other hand, one should distinguish between a penalty and other measures that concern its execution or enforcement. If one deals with a measure that in substance constitutes a penalty (or additional penalty), the ban on retroactive criminal law applies. However, if a measure only concerns the execution of a penalty that was applicable at the relevant time, then the guarantee enshrined in Article 7 does not apply. This is particularly true in relation to instruments that concern the remission of a sentence or a change in a regime for early release, and those that are merely of a preventive nature (like placement on a register of offenders).13 However even more prominent, from the point of view of the judicial activism, is the “living instrument” doctrine, which enables the ECtHR to match the content of the ECHR to changing circumstances by making use of evaluative interpretations. Inclusion of the lex mitior rule within the scope of Article 7 is a good illustration of this technique. TheE CtHR has departed over time from its previously established case-law14 by ruling that a defendant should be able to benefit from a subsequent criminal law (i.e. one enacted after an offence has been committed) providing for a more lenient penalty, as is expressed in Article 15 of the International Covenant on Civil and Political Rights, which was adopted after the ECHR.15 It is widely stated that Article 7 stands for the legal definitiveness of an offence and constitutes a ban on an overly broad construction of criminal provisions, in particular by analogy.16 The ECtHR requires, therefore, that both offences and penalties be clearly defined by law. Its role in this context is to verify whether, at the time when an

The Reception of International Law in the European Court of Human Rights, Oxford University Press, New York: 2010, p. 12. 12 ECtHR, M. v. Germany (App. No. 19359/04), 17 December 2009, paras. 120, 127-133. The judgment, as well as all other ECtHR judgments, is available at http://www.echr.coe.int. 13 See ibidem, paras. 121, 134-136; ECtHR, Gardel v. France (App. No. 16428/05), 17 December 2009, paras. 40-47. In this matter, see also I.C. Kamiński, Zakaz karania bez podstawy prawnej – orzecznictwo ETPCz za lata 2008–2010 [No punishment without law - case law of the ECtHR of 2008-2010], 11 Europejski Przegląd Sądowy 36 (2011), pp. 40-42. 14 X v. Germany, Commission decision of 6 March 1978, Decisions and Reports 13, para. 70-72 15 ECtHR, Scoppola v. Italy (no. 2) (App. No. 10249/03), Grand Chamber, 17 September 2009, paras. 106-109; see also Kamiński, supra note 13, pp. 36-37. 16 E.g. ECtHR, Kokkinakis v. Greece (App. No. 14307/88), Grand Chamber 25 May 1993, para. 52; ECtHR, Başkaya and Okçuoğlu v. Turkey (App. Nos. 23536/94 & 24408/94), Grand Chamber, 8 July 1999, paras. 42-43. The nullum crimen sine lege principle... 167 allegedly criminal act (or omission) was committed, there existed a binding legal provision making that act (or omission) punishable, and whether the imposed penalty did not exceed the limits determined by that provision.17 The term “law” as used in Article 7 is, however, grounded on the same concept as used elsewhere in the ECHR, namely it encompasses both statutory law and case-law and implies the qualitative requirements of accessibility and foreseeability.18 The ECtHR has pointed out that while “the law” is of general application, the wording of statutes is not always precise, especially due to some general categorizations that are commonly used in every legal system. Insofar as many terms used by a legislator are imprecise, an element of judicial interpretation, aimed at the elucidation of doubtful points and adaptation to changing circumstances, is inevitable.19 It is thus claimed that while certainty of law is highly desirable, its flexibility and ability to keep pace with reality is also of great importance. It is, therefore, the role of the courts to dissolve any interpretational doubts. The Court has declared that Article 7 cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.20 Moreover, the requirement of foreseeability is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable and what penalty he faces on that account.21 Consequently, on the basis of Article 7 the ECtHR has formulated two slightly different demands than lex scripta, lex praevia, lex certa, and lex stricta, namely that the application of criminal law must be foreseeable for an individual, and that such an application must be in accordance with the “essence of an offence”.22 Hence, the

17 E.g. ECtHR, Coëme and Others v. Belgium (App. Nos. 32492/96, 32547/96, 32548/96, 33209/96 & 33210/96), Grand Chamber, 22 June 2000, para. 145; ECtHR, Achour v. France (App. No. 67335/01), Grand Chamber, 29 March 2006, para. 43. 18 ECtHR, The Sunday Times v. the United Kingdom (App. No. 6538/74), 26 April 1979, para. 49. 19 E.g. ECtHR, Kafkaris, v. Cyprus (App. No. 21906/04), Grand Chamber, 12 February 2008, para. 141. 20 E.g. ECtHR, Khodorkovskiy and Lebedev v. Russia (App. Nos. 11082/06 & 13772/05), 25 July 2013, para. 780. 21 E.g. ECtHR, Kafkaris v. Cyprus, para. 140; ECtHR, Cantoni v. France (App. No. 17862/91), Grand Chamber, 15 November 1996, para. 29. 22 Starmer, supra note 10, p. 124; A. Bernardi, Nullum crimen, nulla peona sine lege between European law and national law, in: M.C. Bassiouni, V. Militello, H. Satzger (eds.), European Cooperation in Penal Matters: Issues and Perspectives, Cedam, Padova: 2008, pp. 101-102; Peristeridou, supra note 6, p. 96; T. Sroka, in: M. Safjan, L. Bosek (eds.), Konstytucja RP. Tom I. Komentarz do art. 1–86 [The Constitution of Poland. Volume I. Commentary on Article 1-86], Wydawnictwo C.H. Beck, Warszawa: 2016, p. 1014. But see B. Kunicka-Michalska, supra note 3. 168 Aleksandra Rychlewska human right which is enshrined in Article 7 can be called the right to foreseeable criminalization.23 This seems to be, however, less ‘shielding’ than the afore-cited principles. The requirement of a clear, unambiguous statutory provision, enacted beforehand and publicly accessible, was thought to enable an individual to foresee possible criminal responsibility just by reading the statute. If one must search for criminal law information elsewhere, then such foreseeability seems to be problematic. Since the ECtHR’s interpretation of the nullum crimen sine lege principle is said to follow “from its object and purpose”, one may rightfully wonder what this means in practice. In particular, the nullum crimen sine lege principle is used to stress the protective finality of criminal law, that is, protection of individuals against the arbitrary use of state power (the vertical dimension of human rights). Yet there is another aspect of personal security that needs to be taken into consideration when dealing with criminal policy – protection of individuals against each other (the horizontal dimension). This object is an element of the instrumental finality of criminal law, which is aimed, broadly speaking, at controlling social order and protecting legal assets.24 So one may ask: is the Court’s promotion of a flexible approach to the above-described legal principles aimed at attaining legal security for individuals, or more broadly at personal security for members of society? The following analysis of theE CtHR’s rulings examines the actual scope of guarantees enshrined in Article 7. It should be stressed at the outset that attention is primarily paid to the issue of the criminal conduct, whereas the matter of the penalty is raised only additionally. Having this in mind, the first part of the paper is aimed at investigat- ing the scope of protection of the foreseeability condition. The second part is devoted to the definition of the essence of an offence and its application in practice. In the third part, the objects and purposes of the ECHR and its role in this context will be examined.

1. THE FORESEEABILITY OF LAW

In the case of Groppera Radio AG and Others v. Switzerland it was declared that “the scope of the concepts of foreseeability and accessibility depends to a considerable degree on the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed.”25 In each case the ECtHR must, therefore, determine objectively whether there exists, in national or international law,

23 Peristeridou, supra nota 6, passim. 24 See generally ibidem, pp. 132-134; A. Zoll, in: T. Bojarski (eds.), System prawa karnego. Tom II. Źródła prawa karnego [System of criminal law. Volume II. Sources of criminal law], Wydawnictwo C.H. Beck, Warszawa: 2011, pp. 241-255; J. Utrat-Milecki, The effects of the civilising process on penal developments in the European Union, in: J.B. Banach-Gutierrez, Ch. Harding (eds.), EU Criminal Law and Policy: Values, Principles and Methods, Routledge, London/New York: 2017, pp. 21-36. 25 ECtHR, Groppera Radio AG and Others v. Switzerland (App. No. 10890/84), 28 March 1990, para. 68. The nullum crimen sine lege principle... 169 a plausible legal basis for a criminal conviction; and determine subjectively whether, at the time of the alleged commission of the crime, it was reasonably foreseeable to the accused citizen that his or her conduct would make him/her responsible for such an offence. Bearing in mind the idea that underlies the nullum crimen sine lege principle, one can assume that within the field of criminal law the highest standard of foreseeability is required. The Kokkikakis v. Greece case was one of the first in which the ECtHR applied the foreseeability test in relation to the right guaranteed by Article 7. The case concerned a citizen of Greece, who, as a practicing Jehovah’s Witness, had been accused and convicted of the crime of proselytism. In his application to the ECtHR he maintained that the definition of proselytism was so broad that even the slightest discussion of religious subjects might be considered as an indirect attempt to illegally intrude on someone’s beliefs.26 Moreover, he claimed that it was not only the lack of definitiveness of the offence that was contrary to the ECHR, but also that the law was a violation of the freedom to manifest one’s religion guaranteed by Article 9 of the ECHR. In its ruling the ECtHR noted that criminal provisions on proselytism were an exemplification of laws “inevitably couched in terms which, to a greater or lesser extent, are vague”, the interpretation and application of which depend on existing practice. Since national case-law had already been settled and was such as to enable the applicant to regulate his conduct with respect thereto, the limitation of his right was found to be “prescribed by law” within the meaning of Article 9 of the ECHR and, from the point of view of Article 7, could serve as a valid basis for criminal responsibility.27 On the other hand, the Court held that there had been a violation of freedom of religion, since the conviction was not justified in democratic society by “a pressing social need” for criminalization.28 The Court offered a similar stance on foreseeability in the case ofFlinkkilä and Oth- ers v. Finland. The applicants were charged with spreading data depicting the private life of another person. They claimed it had not been clear from the penal provision that their conduct might be punishable, because the scope of private life was not clarified. Inasmuch as the provision constituted a restriction on the right to freedom of expression, they also argued, based on Article 10 of the ECHR, that the limitation was not “prescribed by law” and not “necessary in a democratic society”. The ECtHR noted, however, that although the legislation was not precise, the Guidelines for Journalists and the practice of the Council for Mass Media (which professional journalists like the applicants should have been aware of – even if they were not binding) provided even more strict rules than criminal law. For this reason the limitation was found to be

26 The definition reads as follow: “By ‘proselytism’ is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvete.” 27 ECtHR, Kokkinakis v. Greece, para. 52. 28 Ibidem, paras. 49-50. 170 Aleksandra Rychlewska

“prescribed by law” and, accordingly, coherent with the nullum crimen sine lege principle.29 At the same time, it was considered to be too excessive in a democratic society, especially due to the severe sanction imposed on the applicants. In other words, the Court found that “the domestic courts failed to strike a fair balance between the competing interests at stake.”30 It is clear from the foregoing that the scope of foreseeability, i.e. the measure of legal certainty, is not stricter for the right to foreseeable criminalization than that applied to other fundamental rights under the ECHR. In fact, one may posit that the protection of the freedom to manifest one’s religion or beliefs, the freedom of expression respectively, is even more far-reaching, since any restrictions on those rights need to meet more conditions than in case of “freedom from” an arbitrary conviction. While Article 7 requires only that a limitation to an individual’s freedom in general be “prescribed by law”, this is just the first requirement when dealing with other rights guaranteed by the ECHR. Limitation of them must be, additionally, justified with a legitimate aim and be necessary in a democratic society. On the other hand, the cases cited above show that Article 7 is an element of a wider approach to criminal justice, where the proportionality of criminalization, i.e. whether a particular conduct should be penalised in democratic society and how severe a sanction should be provided for its commitment, is also relevant. It must be borne in mind that every criminal provision restricts an individual’s freedom of action – it prohibits particular conduct under threat of penalty, so citizens are not free to exercise their autonomy. It can be claimed, therefore, that criminalization should not only be prescribed by law, but also justified by a need to protect those legal assets that are valuable in democratic society. This is another aspect of protection against the arbitrary use of criminal sanctions, namely – against arbitrary criminalization by the legislator.31 This is what is called the “material characteristic” of an offence, which is covered by the principle of nullum crimen sine periculo sociali (whereas the nullum crimen sine lege principle stands for a formal characterization). In Polish legal system one will say that the legislator is required to prescribe as punishable only such behaviours that are socially harmful (an abstract viewpoint). The judge, in turn, is not to impose punishment if the harmfulness of an alleged criminal conduct is negligible (a concrete viewpoint).32 Notably, such a supplemental guarantee is not enshrined in Article 7 itself, but stems from other provisions. If the applicant claims that the State Party has violated not only his right to foreseeable criminalization, but also other right guaranteed by the ECHR, precisely – one that is limited by a criminal provision, an additional charge must be made. Even though the ECtHR’s analysis of foreseeability is to assess whether a particular person has had the opportunity to recognize the legal consequences of an act under-

29 ECtHR, Flinkkilä and Others v. Finland (App. No. 25576/04), 6 July 2010, paras. 67-68, 94. 30 Ibidem, paras. 82-93. 31 L. Gardocki, Ponadustawowe i pozaustawowe standardy prawa karnego [Super-statutory and non- statutory standards of criminal law], 48 Studia Iuridica (2008), p. 331. 32 See generally Zoll, supra note 1, pp. 19-21. The nullum crimen sine lege principle... 171 taken, it is not the individual’s subjective viewpoint that matters. Since the law may satisfy the above-mentioned requirement if the legal consequences can be determined with a help of legal advisor, the standard that is applicable is that of someone who is a lawyer by profession and, for this reason, who is well acquainted with legal doctrine in the overall sense. Importantly, the ECtHR noted that “this is particularly true in relation to persons carrying on professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails.”33 However, at present such a “lawyer standard” is related not only to professionals. It serves as a general criterion of foreseeability – even if no professionals are involved. In particular, in Del Rio Prada v. Spain it was applied in relation to a person convicted of terrorist offences,34 in Ashlarba v. Georgia to a person convicted of being a member of a criminal syndicate,35 in Jorgic v. Germany and Vasiliauskas v. Lithuania to persons convicted of genocide.36 In these cases there was no legal basis to demand any special degree of knowledge and care from an individual, other than acquaintance with formally binding legal provisions, in assessing the risks of being subject of criminal responsibility. There are no reasons to require that ordinary citizens be familiar with established case-law (at least in continental legal systems), much less with the legal doctrine of both national and international criminal law.37 Taking into account public international law38 or “common knowledge”39 as the basis for foreseeability also creates some doubts. Never- theless, it is justifiable to demand from a lawyer that he or she will not get lost in such a “thicket of rules” and will be able to provide an individual with proper legal advice. Yet, does an individual have a duty to consult a lawyer in everyday life? This leads, consequently, to making criminal responsibility be more objective, as an individual’s subjective possibility to anticipate legal consequences, especially due to clear, unambiguous criminal provision, written in everyday language and thought to be interpreted literally, is not crucial. What is crucial, instead, is whether a decision to apply (criminal) law could be objectively expected in the “legal world”.40 Notably, one may claim that the requirement of a perpetrator’s awareness of unlawfulness must still be met. The problem of subjective foreseeability could be, therefore,

33 E.g. ECtHR, Cantoni v France, para. 34-35; ECtHR, Pessino v. France (App. No. 40403/02), 10 October 2006, para. 33. 34 ECtHR, Del Rio Prada v. Spain (App. No. 42750/09) Grand Chamber, 21 October 2013, paras. 79, 112. 35 ECtHR, Ashlarba v. Georgia (App. No. 45554/08), 15 July 2014, paras. 34, 40. 36 ECtHR, Jorgic v. Germany (74613/01), 12 July 2007, paras. 111-113; ECtHR, Vasiliauskas v. Lithuania (App. No. 35343/05), Grand Chamber, 20 October 2015, paras. 154, 156, and joint dissenting opinion of Judges Villiger, Power-Forde, Pinto de Albuquerque & Kuris, para. 30. 37 See ECtHR, Jorgic v Germany, para. 113, where the minority opinion was taken into account. 38 See ECtHR, van Anraat v. the Netherlands (65389/09), 6 July 2010, paras. 83-96; see also Kamiński, supra note 13, p. 40. 39 See ECtHR, Ashlarba v. Georgia, para. 40. 40 Peristeridou, supra note 6, p. 99. 172 Aleksandra Rychlewska relocated on the grounds of culpability.41 In this regard the case of Sud Fondi Srl and Others v. Italy is worthy of mention. In this case the applicant companies agreed on a building project with the municipality. Despite the fact that a planning permission had been granted to them, the public prosecutor commenced a criminal investigation, considering the development to be illegal. Subsequently a criminal court agreed with that point of view. Nevertheless, taking into account “inevitable and excusable error” in the interpretation of “vague and poorly formulated” regional regulations (which interfered with the national law) and, primarily, the granting of a planning permission, the accused representatives of the companies were acquitted owing to their lack of a “guilty mind”. However, at the same time the confiscation of all the land and buildings was ordered. In their complaint to the ECtHR, the applicants pleaded a violation of Article 7, referring to the close connection between the nullum crimen sine lege and nullum crimen sine cupla principles. The ECtHR (having found that the confiscation order constituted a “penalty” in terms of Article 7) noted that indeed there is a requirement of an intellectual connection (consciousness and will) to detect an element of responsibility in the perpetrator’s conduct, otherwise the penalty would not be justified. It also stressed that it would be incoherent to require an accessible and foreseeable legal basis and, conversely, to allow persons to be held “guilty” and punished in cases where they are not in a position to know the content of criminal law, owing to an error which could not be attributed to them. As a result, the imposition of the penalty in connection with a finding of no guilt violated Article 7.42 It seems from the above that the guarantee of nullum crimen sine culpa can also be derived from Article 7.43 However, comparing this case with those aforementioned the only conclusion one may draw is that if an individual acts based on the approval of authorities it cannot be argued he or she should have made a special effort to verify his/her legal position. In other words, in such a case – and probably in no others – the error of law cannot be attributed to an individual. Now the question arises whether the concept of the objective foreseeability of the application of law is enough to prevent arbitrariness? If a court decision is based on an already established construction of a particular offence, or at least if the opinion that a given behaviour falls within its scope is widely available to the “legal world” at the time of commission of the alleged offence, then the minimum standard of a fair warning guarantee would seem to be preserved. An individual has some objectively existing source of information about which acts are forbidden under threat of criminal penalty, and the reviewing court should also adhere to them. In this context the Kafkaris v. Cyprus case is noteworthy. Although the Cypriot Criminal Code was clear about the penalty of mandatory life imprisonment for pre-

41 See generally ibidem, pp. 61-63. 42 See ECtHR, Sud Fondi Srl and Others v. Italy (App. No. 75909/01), 20 January 2009, paras. 116- 117 (in French and Italian) and Information Note 115 concerning the case (in English); see also Kamiński, supra note 13, p. 42. 43 See generally G. Panebianco, The nulla poena sine culpa principle in European courts case law, in: S. Ruggeri (ed.), Human Rights in European Criminal Law, Springer, Cham: 2015, pp. 47-76. The nullum crimen sine lege principle... 173 meditated murder (which the applicant was convicted of), pursuant to the Prison Reg- ulations life prisoners were eligible for remission of up to a quarter of their sentence. Life imprisonment was defined merely as imprisonment for twenty years in this matter, but at the time in question there was a legal practice on the part of prison authorities to apply this length in each case of life imprisonment. The applicant had also been informed that he might qualify for earlier release with reference to his sentence of twenty years’ imprisonment. Importantly, the Prison Regulations were later declared unconstitutional and ultra vires. As the new regulation prevented life prisoners from applying for remission, the applicant was not released within the previously prescribed period.44 He argued before the ECtHR that the unforeseeable prolongation of his term of imprisonment on the one hand, and the retroactive application of the new legislation on the second hand, violated Article 7. Based on the fact that the penal provision had clearly provided for life imprisonment, the ECtHR did not agree with the argument of the retroactive imposition of a heavier penalty. It noted however that Cypriot law, taken as a whole, was not formulated with sufficient precision to enable the applicant to anticipate in a reasonable manner, even with appropriate legal advice, the scope of the imposed penalty. In this regard a violation of Article 7 was found.45 In consequence, the state authorities are not free to improve a misleading legal practice (which affects the clarity of law) to the detriment of a perpetrator in a retroactive manner. Interestingly, this ruling is said to be the first one in which the ECtHR applied the rule prohibiting the use of a more severe penalty by reference to criterion of the quality of law. Since in the context of Article 7 the “law” does not mean merely the “statute”, the claim that life imprisonment constituted, at the time in question, imprisonment for the remainder of the convicted person’s life is, in fact, incoherent. Given that, the lex severior retro non agit rule should have been applied in this case.46 In brief, although criminal law information is not easily available, those who want to obtain it can do so. As stems from the above, such a wide concept of law can be problematic not only for citizens, but also for state authorities. Nevertheless, there is another important aspect of nullum crimen sine lege principle, namely demarcation of the boundaries of human freedom. It is undeniable that the more vagueness there is within a legal system, the more restricted are the opportunities to apply a strict interpretation. This leaves room for judicial discretion. Accordingly, if the definition of a criminal act is full of imprecise terms, the boundary between its literal interpretation and an extensive one cannot be precisely delineated. The requirement of lex stricta would seem to be, in such cases, unfounded. Significantly, even if the case-law or legal doctrine can indicate the actual scope of criminalization, that scope may be extended over time in relation to what had been originally supposed to be punishable by a legislator. This is so especially because of scholars, who (in contrast to what the ECtHR postulates with reference to

44 See particularly ECtHR, Kafkaris v. Cyprus, paras. 12-23, 65-67. 45 Ibidem, paras. 148-150. 46 Kamiński, supra note 13, p. 38. 174 Aleksandra Rychlewska domestic courts) are not bound by the existing interpretations in their research studies. On the other hand, courts can also put forward some new ideas as a side note (within the common law system known as obiter dictum), with no direct effect on a particular decision. All these viewpoints can modify the existing scope of criminalization for future reference. From this point of view there is no stable ‘boundary of human freedom’. In this regard the Dragotoniu and Militaru-Pidhorni v. Romania case is worthy of mention. The applicants, employees of a private bank inT imisoara, were sentenced for taking bribes. In their applications to the ECtHR they indicated that their conduct did not constitute a crime because, according to Article 254 of the Rumanian Criminal Code, bribery could only be committed by a government official or an employee of state-owned company. Since they were employed in a private bank, they could not be held criminally responsible for such an offence. In its analysis the ECtHR drew attention to the fact the Rumanian Government did not reveal that in its national case-law the status of private banks’ employees had been equated, for purposes of criminal law, to that of a civil servant, nor that such a view was shared by scholars. For this reason, it was difficult, if not impossible, for the applicants to anticipate that their actions would entail such consequences. Accordingly, the nullum crimen sine lege principle was found to have been breached.47 Notably, the ECtHR seems to take the view that what is important is not the method of adjudication, nor, strictly speaking, the way in which the law is applied in a particular case, but their effects – whether a final decision on someone’s criminal responsibility was foreseeable or unforeseeable.48 The mere fact that a “forbidden” analogy or broader interpretation is employed is not decisive when dealing with the guarantee enshrined in Article 7. As stems from the Dragotoniu and Militaru-Pidhorni case, interpretation made by analogy (since the statute expressly narrowed the scope of criminalization to individuals with certain features) could constitute a basis for foreseeability if it were previously expressed in the legal doctrine, and the nullum crimen sine lege principle would not be infringed in such case. Remarkably, what the ECtHR nicely described as the “progressive development of law through judicial interpretation” can bring to one’s mind nothing more and nothing less than reasoning per analogiam. In this context an old German case concerning “stealing electricity” must be cited. The Supreme Court of Germany ruled that the liberal construction of the concept of a ‘thing’ (not just as a physical object that occupies a given space) would stand for the impermissible extension of criminal law by analogy. In its opinion the application of the criminal provision so as to cover new developments in living conditions was not possible without altering the statute.49 To sum up, the foreseeability requirement seems to provide some restrictions on judicial arbitrariness. Since a decision should be based on an already established in a

47 ECtHR, Dragotoniu and Militaru-Pidhorni v. Romania (App. Nos. 77193/01 & 77196/01), 24 May 2007, paras. 43-44. 48 See Peristeridou, supra note 6, p. 98. 49 W. Naucke, Interpretation and Analogy in Criminal Law, 3(2) Brigham Young University Law Review 535 (1986), pp. 535-536. The nullum crimen sine lege principle... 175

“legal world” line of interpretation, it cannot be said to be entirely arbitrary. However, the concept does not prevent a court from expanding the scope of criminalization set down by a legislator. Simultaneously, it will not thus prevent a court from narrowing the sphere of human freedom. TheE CHR standard of nullum crimen sine lege principle is not, however, dependent only on the condition of foreseeability in the application of criminal law. Another issue is whether the concept of “the essence of an offence” can be a satisfactory barrier to an extension of criminalization. In other words, does “the essence of an offence” preclude the criminal responsibility from being based on every view expressed in a “legal world”?

2. THE ESSENCE OF AN OFFENCE

The concept of the “essence of an offence” is, basically, not defined in the ECHR system. In many cases it is just proclaimed that Article 7 of the ECHR cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.50 The Commission of Human Rights has, however, shed some light on the matter in its decision in X Ltd and Y v. The United Kingdom. Namely, it indicated that Article 7 precludes such an extension of existing offences so as to cover facts which previously did not entail criminal responsibility. Specifically, “this implies that constituent elements of an offence such as e.g. the particular form of culpability required for its comple- tion may not be essentially changed, at least not to the detriment of the accused, by the case-law of the courts.”51 Nevertheless, as stems from the Ould Dah v. France case, such “constituent elements” might not be embodied in just one criminal provision. In this case, at the time in question “torture and acts of barbarity” constituted aggravating circumstances to the principal offence of murder, but at the time of conviction, after amendment of the applicable law, torture was classified as a separate offence. The new regulation was deemed, however, to be a “continuity” of the former one.52 Thus the statutory classification of factual elements that entail criminal responsibility for a particular act can change over time without changing the essence of an offence. Referring in this context to the Polish legal doctrine, it should be emphasized that the “essence of an offence” is a rather ambiguous issue. Without going into detail, it

50 E.g. ECtHR, K.-H.W. v. Germany (App. No. 37201/97), Grand Chamber, 2 March 2001, para. 85; ECtHR, Kononov v. Lithuania (App. No. 36376/04), Grand Chamber, 17 May 2010, para. 185. 51 X Ltd and Y v. the United Kingdom, Commission decision of 7 May 1982, Decisions and Reports 28, 77, para. 9. 52 ECtHR, Ould Dah v. France (App. No. 13113/03), 17 March 2009. Since the penalty imposed on the applicant did not exceed the maximum one carried by the former regulation, Article 7 has not been violated. See also Kamiński, supra note 13, p. 40. 176 Aleksandra Rychlewska can be understood as consisting of both the objective and subjective elements of an offence that determine its criminality (essence of a criminal act), or in broader sense, of each element that prejudge its unlawfulness (essence of an unlawful act). As regards the criminality only statutory elements are pertinent. This stands, simultaneously, for the nullum crimen sine lege guarantee. With respect to the unlawfulness however, some non- statutory elements of an offence should also be taken into account, as this “essence” is to determine whether a particular behaviour is contrary to the legal order as a whole.53 However, if we assume that a particular act cannot be prescribed as punishable unless it is unlawful,54 then the “non-statutory” scope of unlawfulness should not be wider than the one existing at the time of the alleged commission of the offence. In this respect German legal doctrine uses the term Garantietatbestand – the guarantee essence of an offence – to cover both its objective and subjective elements and, additionally, its unlawfulness and the culpability. Since all these elements determine the criminal liability, they cannot be changed retroactively to the detriment of a perpetrator.55 Referring to the ECHR system, the “essence of an offence” seems to be considered as a limitation on judicial discretion when existing penal provisions are being applied to “present-day conditions”. So long as the courts only clarify the statutory elements of an offense and “settle them in” new circumstances, no objection can be made.56 What should take place, then, is an analysis of what the statutory terms currently designate. The above thesis that the effect of a broad interpretation or analogy could constitute a prospective legal basis for conviction because of its “foreseeability” would be, therefore, unfounded. The decision to apply a law could not be accepted if it goes beyond the boundary determined by the existing elements of an offence, even if it were based on an already established precedent and could be considered foreseeable. On the other hand, the task of jurisprudence is, after all, to refine vague provisions of statutory law. Thus, it would be unfounded to make the claim that within the ECHR system the essence of an offense is determined by the constitutive elements embodied in criminal provisions that are yet undetermined. Hence these components must be rooted elsewhere. The concept of “unlawfulness” seems to be an attractive solution in this regard. One should bear in mind, however, that the boundary between lawfulness and unlawfulness is not necessarily reflected in binding legislation. In particular, the standard of care that is required in given circumstances is, as a rule, of a non-statutory character.57 Since “unlawfulness” does not have a purely normative character, it seems that it is rather a “social sense of

53 See generally R. Dębski, Pozaustawowe znamiona przestępstwa [Non-statutory element of an offence], Wydawnictwo Uniwersytetu Łódzkiego, Łódź: 1995, pp. 80-90, 96-106; A. Zoll, Okoliczności wyłączające bezprawność czynu (zagadnienia ogólne) [Circumstances excluding unlawfulness of an act (general issues)], Wydawnictwo Prawnicze, Warszawa: 1982, pp. 36-43. 54 See generally Zoll, supra note 1, pp. 25-28. 55 W. Beulke, J. Wessels, Strafrecht. Allgemeiner Teil. Die Straftat und ihr Aufbau, Müller, Heidelberg: 2012, p. 46. 56 Starmer, supra note 10, p. 224. 57 See generally Dębski, supra note 53, pp. 288-291. The nullum crimen sine lege principle... 177 unlawfulness” that is pertinent. This standpoint seems to be supported by theE CtHR’s conclusion in the Ashlarba v. Georgia case that the applicant could easily have foreseen which of his actions would make him criminally responsible, primarily “through common knowledge based on the progressive spread over decades of the subculture of the ‘thieves’ underworld’ over the public at large.”58 To clarify what the “essence of an offence” is in theE CHR system, the already cited case of Jorgic v. Germany and the ‘essence’ of genocide is noteworthy. The ECtHR observed that domestic courts had construed the “intent to destroy a group as such” based on the entire context of Article 220a para. 1 of the German Criminal Code, having regard particularly to the “imposition of measures which are intended to prevent births within the group” and the “forcible transfer of children of the group into another group.” These forms of annihilation did not necessitate a physical destruction. Such an interpretation was said to be adopted by a number of national and international scholars. Moreover, the ECtHR indicated that the United Nations General Assembly advocated for the wider interpretation of genocide in its resolution from December 1992. For these reasons it concluded that the so-called “ethnic cleansing” in the Doboj region, intended to destroy the Muslims as a social unit, could reasonably be regarded as falling within the ambit of genocide. Notably, it has been emphasized that the scope of the offence must, consistent with its essence, as a rule be considered to be foreseeable.59 The above illustrates that the essence of an offense is determined by both the wording of a statute and how it is understood in the national and international legal doctrine. Significantly, the indicated criteria are similar to those of the test of foreseeability. It seems, therefore, that the conformity of a particular act with the essence of a statutory offense is not considered as an objective state of affairs (status rērum), but rather as some form of social evaluation. The conclusion of theE CtHR that the applicant’s act “could reasonably be regarded as falling within the ambit of the offense of genocide” can be put forward as a confirmation of such a thesis.60 The case of Radio France and others v. France is also notable in this regard. The editor-in-chief of Radio France and its presenter had been charged with public defa- mation of a civil servant by giving erroneous information about his participation in the deportation of thousands of Jews in 1942. The legal basis for the charge was Ar- ticle 93-3 of the Audiovisual Communication Act of 29 July 1982, that prejudged the criminal responsibility of a publishing director as the principal offender if the content of the offending statement had been “fixed prior to being communicated to the public”, whereas the maker of the statement was to be prosecuted as an accessory. Before the ECtHR the applicants argued the criminal law had been over-extensively applied, since the courts had found the offending statement “prior-fixed” despite the fact that all news (the defamatory broadcast had been repeated sixty-two times) had been put

58 ECtHR, Ashlarba v. Georgia. 59 ECtHR, Jorgic v. Germany, paras. 104-109. 60 See Peristeridou, supra note 6, p. 154. 178 Aleksandra Rychlewska out live. They pointed out that the scholars had all agreed that the condition of “prior- fixing” excludes live broadcasts from the scope of Article 93-3. On the other hand, the French authorities explained that the conviction was not based on the first broadcast, the content of which could not have been known to the editor-in-chief, but on the subsequent ones, when the content could be deemed to have been already known and impliedly accepted. It was emphasized that such an interpretation of the given provision is rational and keeps up with the changing reality. Moreover, it was said to capture the essence of the offense, which came down to having the possibility of supervision by a publishing director whenever a statement is repeated – whether live-to-air or not. The French authorities argued that this constituted a “reasonable reflection of the way the offence had originally been framed.”61 In its ruling the ECtHR basically agreed with the French Government. In particular, it did not carry out any broader analysis of the essence of the alleged offense on its own, but relied in this respect on the opinion of the State Party.62 However, what is significant about that opinion is its argumentation. The Government did not indicate that nowadays some kinds of new methods of prior-fixing have been developed which force the courts to reinterpret that constitutive element of the offence. It argued instead that treating the first broadcast as a “prior-fixing” was in harmony with the underlying idea of the provision. It can be concluded that the essence of an offense can also be determined by the idea to which a legislator adhered when introducing particular provisions, the so-called ratio legis. With this in mind one should recall what analogy means in criminal law. Namely, it […] declares some acts actually outside the coverage of a statute to be criminal because they are like acts that are covered by the statute, in ways that are relevant to preventing the evil addressed by the Statute. In the traditional use of crime creation by analogy to a statutory text, one looks to see if the act involved bears close resemblance to an already forbidden act.63 Hence the question arises: Is the Radio France and others case an example of analogy? If “prior-fixing” already had a stable meaning, i.e. there was a consensus as to how the term was understood and what kind of activities it covered, then the answer would be in the affirmative. Another interesting case of a rather controversial nature is Vasiliauskas v. Lithuania. The applicant was a Lithuanian who, at the time of the SovietR ussian occupation regime, worked for the Ministry of State Security of the Lithuanian SSR. In 2004 he was found guilty of genocide on the basis of his participation in the killing of two partisans in 1953. The problem was that the definition of genocide in the new Lithuanian Criminal Code varied from that set out in the Convention on the Prevention and Punishment of the Crime of Genocide (Convention on Genocide). Specifically, it included political groups

61 ECtHR, Radio France and others v. France (App. No. 53984/00), 30 March 2004, paras. 17-19. 62 Ibidem, para. 20. 63 Gallant, supra note 2, p. 26. The nullum crimen sine lege principle... 179 within the range of groups capable of being victims of genocide. The applicant argued therefore that his conviction was based on the retroactive application of the Lithuanian Criminal Code, defining genocide in wider terms than the Convention on Genocide had. TheG overnment stressed, however, the applicant had been convicted of taking part in the extermination of partisans. The Soviet regime sought to annihilate the identity of the Lithuanian nation and eliminate it as a group, so the domestic court’s conclusion that the murdered partisans must be regarded as members of a national and ethnic group was proper.64 The ECtHR concluded, nonetheless, that the exclusion of political groups from the protected groups was, in light of the travaux préparatoires of the Con- vention on Genocide, intentional. They were considered to be a mobile group, whereas the Genocide Convention was intended to cover relatively stable and permanent ones. In addition, although the destruction of only a part of a protected group was relevant, it should be a “distinct” part – substantial in number, not just two members. TheE CtHR also noted, with reference to Article 31 of the Vienna Convention, that it was not obvious whether the ordinary meaning of “national” or “ethnic” in the Genocide Conven- tion covered partisans as a political group being part of the nation. Treating the victims as part of a protected group would mean, therefore, an analogous application of the criminal law to the detriment of the accused. Consequently, the applicant’s conviction of genocide could not have been regarded as consistent with the essence of that offence as defined in international law at the time of commission, and thus it could not have been foreseen.65 However, the decision was not unanimous. The main view expressed in dissenting opinions was that there were so many partisans fighting for the independence of Lithuania that they had to be perceived as a significant part of the nation.66 While the concept of foreseeability can be specified to some extent, the “essence of an offense” seems to be more intuitive. What the case ofVasiliauskas does confirm is that the legislator’s intent, expressed in the travaux préparatoires, is important in deciding intent. However, this still does not prejudge anything since the common interpretation of an offence, the one carried out in order to assess the scope of a law’s foreseeability, is also of relevance. For this reason the finding that a particular act falls within the ambit of an offence will lead to the finding of foreseeability (as in cases of Jorgic and Radio France), and conversely a finding of that an act falls outside the scope of the “essence of an offense” will lead to a finding of unforeseeability (as in theVasiliauskas case). In light of this convergence, the concept of the “essence of an offence” cannot serve as the effective tool to combat a too-broad interpretation of a law. It lacks the objectivity required to limit judicial discretion. A court may consider every source of information about the law that was available at the moment a particular act had been committed (as in cases of Jorgic and Vasiliauskas), or even interpret it on its own, precisely – agreed on its new interpretation applied by state authorities (as in the Radio France case). Depending on

64 ECtHR, Vasiliauskas v. Lithuania, paras. 121-146. 65 Ibidem, paras. 170-186. 66 See in particular the dissenting opinion of Judge Ziemele to ECtHR, Vasiliauskas v. Lithuania. 180 Aleksandra Rychlewska the Court’s interpretative point of view and the arguments put forward, other elements of a prohibited act might be deemed to be essential. TheVasiliauskas case is a very good example, since the dispute between the judges was related to the essence of the crime of genocide and whether an extermination of a political group representing a significant proportion of the Lithuanian nation fell within that essence. On the other hand, bearing in mind the culpability requirement of Article 7, if the judges disagree about the scope of criminalization, it is unreasonable to claim it was foreseeable (whether objectively or subjectively) for an individual.67 What is significant, however, is that while an unawareness of the unlawfulness of a particular act might exclude a finding of a “guilty mind”, an unawareness of the criminality will not do so.68 The cited case of Sud Fondi Srl and Others, where the granted building permission gave the appearance that the applicants’ activity was lawful (since the applicable criminal provision was not questioned), shows that the ECtHR is rather of the same view.

3. THE OBJECT AND PURPOSE OF THE ECHR

It is clear from the above that what stands behind the guarantee of nullum crimen sine lege is an objectively existing legal basis for conviction making the application of criminal law to a case potentially fall within the established “essence of an offence” possible to anticipate by an individual. Such a construction however fails to prevent the arbitrary use of a criminal sanction, as the concept of the essence of an offence still allows for a not necessarily foreseeable decision. In other words, the foreseeability of criminalization is not fully secured. One should emphasize at this point that the idea of depriving the the nullum crimen sine lege principle of its binding force has already been endorsed within international criminal law, especially in the context of transitional justice.69 This goes hand in hand with a general trend to eradicate impunity in relation to the most serious human right violations. However, within the ECHR system it is manifested mainly by an obligation to criminalize violations of the rights and freedoms protected by the ECHR, or – to put it more precisely – an obligation to provide criminal law protection “by putting in place effective criminal-law provisions to deter the commission of offences […], backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions”.70 In this respect one must be aware that within criminal law there is always a conflict of values.

67 See H. van der Wilt, Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability Test, 84 Nordic Journal of International Law 515 (2015). 68 Zoll, supra note 1, p. 465; Peristeridou, supra note 16, pp. 62-63. But see Dębski, supra note 49, pp. 27-29. 69 See Gallant, supra note 2, pp. 38-39. 70 ECtHR, Mahmut Kaya v. Turkey (App. No. 22535/93), 28 March 2000, para. 85. See also K. Holy, Prawo międzynarodowe publiczne wobec amnestii [Public international law and amnesty], Difin, Warszawa: 2015, pp. 75-77; A. Seibert-Fohr, Prosecuting Serious Human Rights Violations, Oxford University Press, Oxford: 2009, pp. 114-115. The nullum crimen sine lege principle... 181

In the law-making process there are, on the one hand, legal assets, the protection of which becomes a justification for the criminalization of a particular behaviour; while on the other hand are the rights of a perpetrator, his or her freedom and autonomy, which are limited by a prohibition under threat of criminal sanction. Conversely, with respect to the application of law, the value at stake is the right to legal certainty and security. For this reason, punishment should not be imposed in the absence of a valid legal basis, even if someone has committed an act of significant social harm. Nowadays however, it is hard to defend this tenet of legalism when the act interferes with basic human rights. One can argue that in the light of principles of equity and social justice, legal security should not be deemed as an absolute.71 Having this in mind, the conditions underlying the object and purpose of the ECHR give rise to the horizontal weighing of human rights that compete against each other in given circumstances. If the right to foreseeability conflicts with other human rights in the ECHR, what the ECtHR should do is to align the degree of foreseeability with the expected protection of the other right.72 It is worth recalling in this context that currently one can encounter invocation of the protection of socially valuable legal assets to justify a need to criminalize particular behaviours.73 This, however, not only means that the legislator cannot prohibit, under threat of criminal penalty, acts that lack any social harmfulness, but also that the legislator is obligated to provide a penalty when necessary to protect socially valuable assets. Accordingly, “criminal norms are not only a barrier to state arbitrariness, but also protect individual autonomy in its positive sense, i.e. they enforce standards of interpersonal activity.”74 Thus foreseeability is interpreted not in the light of the vertical relation between an individual and state authorities, but the horizontal dimension – interpersonal relationships. From this point of view some reasonable expectations of individuals with respect to each other, based on a legal system proper for democratic societies, are in need of protection. At this point one may wonder whether the ECtHR tries to help State Parties fulfil such a positive obligation. Recourse to the object and purpose of the ECHR (which the ECtHR attempts to ensure every time when settling an issue of respect for human rights) when deciding on a possible violation of Article 7 seems to be useful in this matter. The widely discussed cases of S.W. v. The United Kingdom and Streletz, Kessler and Krenz v. Germany are worth mentioning in this regard. The acts which the applicants had been convicted of constituted an outstanding example of the so-called crime mala per se, where a common sense of justice requires a perpetrator to be punished regardless of the principle of nullum crimen sine lege and, in these special cases, regardless of the degree of foreseeability of criminal responsibility.

71 M. Pieszczek, Zasada lex retro non agit w kontekście zbrodni wojennych - rozważania na tle orzeczeń ETPCz w sprawie Kononov v. Łotwa [The principle of lex retro non agit in the context of war crimes – a few comments on the case of Kononov v Lithuania], 6 Europejski Przegląd Sądowy 14 (2011), p. 14. 72 Peristeridou, supra note 6, p. 99. 73 Zoll, supra note 24, p. 234. 74 Peristeridou, supra note 6, p. 100. 182 Aleksandra Rychlewska

The first case involved a rape conviction with the perpetrator’s wife as a victim. The criminality of the rape was not in doubt, but in English common law there was an established so-called “marital immunity”, according to which a husband could not be found guilty of raping his wife. Since the penal provision sanctioned “unlawful sexual intercourse”, it was argued that sex within marriage was lawful as a rule. Although the recent jurisprudence has begun to provide for exceptions to this immunity, at the time in question it was still recognized. However, the State authorities claimed the immunity was already of doubtful validity, as this was an area where the law had been subject to progressive development and, if need be with help of legal assistance, the applicant could have foreseen that he would be charged.75 The ECtHR agreed with that reasoning, stating that “the decisions of the Court of Appeal and then the House of Lords did no more than continue a perceptible line of case-law development dismantling the immunity of a husband from prosecution for rape upon his wife.”76 It noted, furthermore, that the essentially debasing character of rape is so manifest that the result of the decisions of the Court of Appeal and the House of Lords - that the applicant could be convicted of attempted rape, irrespective of his relationship with the victim - cannot be said to be at variance with the object and purpose of Article 7 […], namely to ensure that no one should be subjected to arbitrary prosecution, conviction or punishment, and that ‘the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilized concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom.77 One must agree that the idea of the so-called marital immunity, negating the illegality of rape within a marriage, is glaringly inequitable in the era of equality between men and women and the wide protection of freedom of sexual self-determination. Nevertheless, it can be considered as doubtful whether a “perceptible line of case-law development” is a sufficient source of criminal law foreseeability.78 What is, however, significant is that the conditions of foreseeability and the essence of the offence (rape) were assessed with reference to “the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom”, not just to national law of a “lower standard”. In the second case, one should note at the outset that the applicants were high-ranking officials and law-makers in the German Democratic Republic (GDR) structures,

75 ECtHR, S.W. v. the United Kingdom (App. No. 20166/92), 22 November 1995, paras. 19-27. See also ECtHR, C.R. v. the United Kingdom (App. No. 20190/92), 22 November 1995. The second case involved conviction for attempted rape. 76 ECtHR, S.W. v. the United Kingdom, para. 43. 77 Ibidem, para. 44. 78 This decision was also criticized by the English legal doctrine. A. Ashworth, Principles of Criminal Law, Oxford University Press, Oxford: 2003, pp. 72-73. The nullum crimen sine lege principle... 183 and following the reunification ofG ermany they were convicted of incitement to murder many young people trying to escape to West Germany in the years 1971-1989. In their applications to the ECtHR they alleged that in giving such orders they had acted in accordance with the legal practise of that time and in the GDR they would never have been prosecuted for their actions. After a thorough analysis of the legal situation, the ECtHR ruled, nevertheless, that there was no violation of Article 7. It pointed out that as being high-ranking officials and, primarily, law-makers the applicants must have known not only the GDR’s Constitution and legislation on protection of human lives and its international obligations in this matter, but also have been aware of the criticisms of its border-policing regime.79 The Court’s conclusion was that due to the special status of the right to life in international human rights instruments, including the ECHR, the German courts’ strict interpretation of GDR law, detached from the legal practice that had been carried out, was not in violation of the nullum crimen sine lege principle. The ECtHR stressed that a legal practice which flagrantly infringes human rights and, above all, the right to life, cannot fall within the protection of Article 7. In other words, such a practice cannot be described as “law” within its meaning. The Court held that: “To reason otherwise would run counter to the object and purpose of that provision, which is to ensure that no one is subjected to arbitrary prosecution, conviction or punishment.”80 It follows from the above that persons charged with a crime cannot rely on established, foreseeable legal practice of state authorities in order to defend their interests unless such practice respects basic human rights, especially human dignity and freedom and the right to life. One might recall in this context the Radbruch formula of lex in- iusta non est lex. To plead for the protection of nullum crimen sine lege – in cases where the principle interferes with such values – can be recognised as something like an abuse of law. At the same time, inasmuch the ECtHR declares that this would run counter to Article 7, it can also argue that the lack of criminalization – when it is necessary to protect core values in democratic societies – falls within the ban on arbitrariness on the grounds of the ECHR. Significantly, the condition referred to here as “the object and purpose ofthe ECHR”, aimed at balancing human rights under protection, can also be derived from the requirement of foreseeability. The ECtHR has proclaimed that what is demanded it is not an absolute, but a “reasonable” foreseeability.81 This “rationalism” obviously leaves a great deal of room for judicial discretion. Moreover, the condition described is connected with the essence of an offence as well. Such a balancing approach might be applied especially when assessing whether a particular act corresponds – in reasonable manner – to the essence of the offence.T aking as an example the Vasiliauskas case,

79 ECtHR, Streletz, Kessler and Krenz v. Germany (App. Nos. 34044/96, 35532/97 & 44801/98), Grand Chamber, 22 March 2001, paras. 77-78. 80 Ibidem, paras. 87-88. 81 See especially ECtHR, The Sunday Times v. the United Kingdom; also Peristeridou, supra note 6, pp. 97-98. 184 Aleksandra Rychlewska regardless of whether the decision reached by the ECtHR was the right one, expression of some kind of a “social need to punish” is visible in the dissenting opinions. It was claimed that too much attention has been devoted to the protection of an individual’s right and too little to a specific collective right to the historical truth and fight against impunity for the most serious human rights violations (a line of reasoning which is a general trend in current international law82). Importantly, the ECtHR could have accomplished this in two ways – at the stage of the legal interpretation of genocide (i.e. that the extermination of a political group representing a significant proportion of the Lithuanian population falls within the ambit of genocide); and/or through factual findings (i.e. that the Lithuanian partisans that were to be exterminated constituted a significant part of the nation). As Judge Ziemele stated, While maintaining the rule-of-law standard that Article 7 provides, it is particularly important that this Court, at the level of the presentation of facts and the choice of methodology and issues, is guided by these broader principles regarding the right to truth and prohibition of impunity.83 At the same time, the case clearly illustrates that the assessment of whether the principle of nullum crimen sine lege has been violated is full of subjectivity. Depending on one’s personal view of what acts deserved to be punished “the presentation of facts and the choice of methodology and issues” can be different. Hence, the decision on the State Party’s compliance with Article 7 does not result from a mere legal syllogism, where the major premise is the proposition of a given law and the minor premise is the proposition of a given set of facts. Both the law and the facts are always matters of interpretation. The importance of factual findings in this context can be easily seen also in the Kononov v. Lithuania case. In its first ruling the ECtHR concluded, in a 4-3 vote, that the applicant could not have foreseen that the killings and the burning of buildings at Mazie Bati village amounted to a war crime under domestic and international law at the time. Since a clear definition of “protected group of non-combatants” was lacking, the victims, due to their engagement in collaboration activity, could not have been deemed as civilians (non-combatants).84 However, such a conclusion was changed by the Grand Chamber after re-examination of the case. While not referring to the exact status of the victims, the ECtHR ruled, by fourteen votes to three, that their mass execution without a trial was in any case contrary to the laws and customs of war, and consequently fell within the already established ambit of a war crime.85 It was stressed that

82 See Y. Naqvi, The right to the truth in international law: fact or fiction?, 88 International Review of the Red Cross 245 (2006), pp. 269-272; Holy, supra note 70, pp. 85-88. 83 The dissenting opinion of Judge Ziemele toVasiliauskas v Lithuania, supra note 36, para. 27. 84 ECtHR, Kononov v. Latvia (App. No. 36376/04), 24 July 2008, paras. 125-149. 85 See ECtHR, Kononov v. Latvia (Grand Chamber), paras. 125-254. For a summary of the Kononov case, see Kamiński, supra note 13, pp. 38-39; Pieszczek, supra note 64, pp. 16-19; Balcerzak, supra note 4, pp. 450-452. The nullum crimen sine lege principle... 185

having regard to the flagrantly unlawful nature of the ill-treatment and killing of the nine villagers in the established circumstances of the operation on 27 May 1944 […], even the most cursory reflection by the applicant would have indicated that, at the very least, the impugned acts risked being counter to the laws and customs of war as understood at that time and, notably, risked constituting war crimes for which, as commander, he could be held individually and criminally accountable.86 The case shows that, depending on subjective convictions, the same factual and legal bases can lead to opposite conclusions about the observance of Article 7. A parallel problem with the ECtHR’s possibility to assess the factual findings on its own took place in the case of Korbely v. Hungary. Similarly as in the Kononov case, revision of the status of the applicant’s victim from non-combatant to combatant led to the conclusion that there had been a violation of Article 7. However, the decision was made by eleven votes to six.87 What is important (and was criticized in some dissenting opinions88), the ECtHR deemed itself to be in a position to question the interpretation of law and facts made by national courts, and not only in the event that such an interpretation is manifestly arbitrary and undermines the rights and freedoms protected by the ECHR. It is also free to do so when the Convention itself refers to domestic law. Notably, in relation to Article 7 that would be the rule. It was explained that the ECtHR must be able to verify both the interpretation of the national and international law made by the domestic courts and their legal characterization of the factual description of the events. Otherwise Ar- ticle 7 would be rendered devoid of purpose.89

CONCLUSIONS

In characterising the principle of nullum crimen sine lege in the ECHR system it should be noted at the outset that the requirement of the statutory definitiveness of an offence is rather a declaration. The same is true with respect to the prohibition of a broad interpretation and analogy. From the point of view of individuals it must be stressed that on the basis of a legal provision they only get an outline of punishable acts, which is further developed in both the case-law and the legal doctrine. However, a decision that is not in line with the current interpretation can still be approved as the right one. This would be especially true if the negation of the criminalization would violate basic human rights. As a consequence, it is “more safe” for an individual to be

86 ECtHR, Kononov v. Latvia (Grand Chamber), para. 238. 87 ECtHR, Korbely v. Hungary (App. No. 9174/02), Grand Chamber, 19 September 2008. See also Kamiński, supra note 13, pp. 39-40; Balcerzak, supra note 4, pp. 447-448. 88 See the joint dissenting opinion of Judges Lorenzena, Tulkensa, Zagrebelsky, Fury-Sandström and Popovicia to ECtHR, Korbely v. Hungary. 89 ECtHR, Kononov v. Latvia, paras. 108-111. See also Z. M. Nedjati, Human Rights under the European Convention, North-Holland Publishing Company, Amsterdam: 1978, p. 133. 186 Aleksandra Rychlewska aware of the scope of unlawfulness rather than rely on the criminal legislation. In other words, it is not the criminal provision itself that demarcates the actual scope of criminalization, but the court is allowed to take into account established case-law and legal doctrine and, in addition, to construct the “essence” of a particular offence on its own so as to make it suitable to contemporary conditions. For this reason it is “safer” not to pay too much attention to criminal legislation – the boundaries of freedom it ought to provide are not decisive in legal practise. However, considering the requirement of the proportionality of criminal law, what should be decisive in this matter is a “pressing social need” for criminalization. Furthermore, assuming that the above-mentioned rule, according to which acts prohibited under threat of criminal penalties can only be acts contrary to the legal order, is an absolute principle in democratic societies, such a “pressing social need” for criminalization must refer to acts (or omissions) that have already been declared unlawful. One may claim, therefore, that an individual must keep up with the established legal order. However, it is not just legal norms, but also social ones that determine unlawfulness. For this reason individuals seem to be left with a “social sense of unlawfulness” that is applicable in modern democratic societies. One can recall in this regard the English principle of “skating on thin-ice”, according to which individuals who are not sure whether their behaviour will or will not be labelled as criminal, but get involved in it anyhow and risk being prosecuted, cannot escape liability by pointing out the vagueness of the law.90 If one understands the guarantee of “foreseeable” criminalization as something that should work in every case, i.e. that is “guaranteed”, this is not what the ECHR system ensures. At the same time, the concept of “unlawfulness” also fails to provide an individual with criminal law certainty, since in a particular situation it may not be certain whether a criminal punishment will or will not be imposed – this depends on the “pressing social need” for criminalization, which is a rather subjective matter. However, by preventing people from any and every potentially punishable unlawful behaviour, the reinforcement of personal security might be achieved. This seems to go hand in hand with what was posited at the beginning, that Article 7 is just one element of human rights protection. It cannot undermine other values enshrined in the ECHR, at least not when it is not justifiable. From this perspective, the flexibility of the nullum crimen sine lege principle within the ECHR system is aimed at ensuring that the fundamental social values, especially fundamental human rights, will not lack criminal law protection in the name of subjectively “foreseeable” criminalization. Consequently, the ECtHR promotes a balancing approach to human rights, which in the context of criminal law comes down to weighing the interests of both the accused and the “victim” and decide – taking into account the fundamental objectives of the ECHR by means of the “reasonable” foreseeability and the concept of the “essence of an offence” – which one prevails in a particular case.

90 Ashworth, supra note 78, pp. 70-75. XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016i 2016 PL ISSN 0554-498X

Petra Bárd*

Scrutiny over the Rule of Law in the European Union

Abstract: The European Union is founded on a set of common principles of democracy, the rule of law, and fundamental rights, as enshrined in Article 2 of the Treaty on the European Union. Whereas future Member States are vetted for their compliance with these values before they accede to the Union, no similar method exists to supervise respect of these foundational principles after accession. This gap needs to be filled, since history proved that EU Member State governments’ adherence to foundational EU values cannot be taken for granted. Against this background this article assesses the need and possibilities for the establishment of an EU Scoreboard on EU values; viable strategies and procedures to regularly monitor all Member States’ compliance with the rule of law on an equal and objective basis; and the nature of effective and dissuasive sanction mechanisms foreseen for rule of law violators.

Keywords: democracy, European Union, fundamental rights, Hungary, Poland, rule of law

Introduction: Problem setting

The European Union (EU), and its area of freedom, security and justice (AFSJ), is founded on a set of common principles comprised of democracy, the rule of law, and fundamental rights. This is enshrined in Article 2 of the Treaty on European Union (TEU) which lists “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities” as the shared values in which the Union is rooted. With the entry into force of the Lisbon Treaty, the EU became officially equipped with its own bill of rights in the form of the Charter of Fundamental Rights. Moreover, the national constitutional traditions of the EU Member States, the ECHR, and the jurisprudence of the Strasbourg court (ECtHR) are also constitutive elements of EU law.

* Dr. habil., LLM, Ph.D., Associate Professor, Eötvös Loránd University, Faculty of Law, Budapest; Visiting Professor, Central European University, Legal Studies Department, Budapest (Hungary). 188 Petra Bárd

Future member states are filtered for their compliance with these values before they accede to the Union (Article 49(1) TEU). The so-called “Copenhagen criteria”, established in 1993, are designed to ensure that all new EU Member States are in line with the Union’s common principles before joining the EU. In addition, the Union exports these values, which are a fundamental component of the Union’s international relations (Articles 21, 3(5) and 8 TEU). That notwithstanding, no similar method exists to supervise adherence to these foundational principles after accession. Thus a gap has emerged between the EU’s proclamation of these fundamental rights and foundational values and principles, and their actual enforcement. Whereas before accession the most severe sanction can be imposed on a prospective member country – namely, that its disregard of EU values might result in not being able to join the EU – there is no coun- terpart to such scrutiny after accession. This has been referred to by Viviane Reding, Vice-President of the European Commission, as the “Copenhagen dilemma”. Against this background, Commissioner Reding’s call to stop applying a double- standard when it comes to respect for the rule of law – one for those outside the EU and another for those already in the EU – should be seen as an important initiative. “Whereas it is the duty of domestic legal systems to uphold the Treaties, including EU objectives, rule of law matters are no longer a ‘domain reservé’ for each Member State, but are of common European interest.” This lack of monitoring, evaluating, and supervisory mechanisms would not constitute a problem if Member States would continue to adhere to these principles after accession too. This is a very unlikely hypothetical scenario though. As James Madison put it, “if angels were to govern men, neither external nor internal controls on government would be necessary.” But governments comprised of human beings, including EU Member State governments, may – and do – violate foundational principles, and they do so in at least two ways. In the first place, concepts such as the rule of law and fundamental rights are fluid concepts. Member States may violate them by violating the letter of the law or by sticking to their black letter law or jurisprudence instead of responding to the changed social circumstances (e.g. maintaining the criminalization of homosexuality, non-criminalization of domestic violence, or lack of reasonable accom- modations are just illustrative and obvious examples). Second, a country may straightforwardly turn against its own previously-respected principles of democracy, the rule of law, and fundamental rights. This latter scenario may happen in a narrow field, but in a gravely injurious manner, which is typically the case with regard to fundamental rights, like for example the Roma crises in France in 2010-2013, the Italian Ponticelli

“Once this Member State has joined the European Union, we appear not to have any instrument to see whether the rule of law and the independence of the judiciary still command respect”. European Parliament, Plenary debate on the political situation in Romania, statement by V. Reding, 12 September 2012. See also V. Reding, The EU and the Rule of Law: What Next?, speech delivered at CEPS, 4 September 2013. Reding (The EU and…), supra note 1. J. Madison, The Federalist No. 51. The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, Independent Journal, 6 February 1788. Scrutiny over the Rule of Law in the European Union 189 incident, or the mass surveillance of EU citizens by the British GCHQ intelligence service in collaboration with the United States NSA. Alternatively, a country may make a U-turn on the rule of law path, systematically eliminating – at least in the domestic setting – channels for various kinds of internal dissent, i.e., diminishing the potentialities of criticism by the voters by, for example, controlling the media, gerrymandering, or restricting civil society by cutting funds and systematically harassing NGO representatives; and doing the same with respect to state institutions by weakening the powers of the constitutional court, by influencing the judiciary, by eliminating ombudsman’s offices, etc., thereby deconstructing effective checks and balances. At the time of writing this present article Member States illustrat- ing such systemic threats currently include, according to one or more EU institutions, Hungary and Poland, and the number of other potential candidates is rising. Typically, depreciation of one fundamental value triggers depreciation of others as well. For example, the discrimination against the Roma went hand in hand with arbitrary determinations of a state of emergency by various Italian state and local administration organs. Also, the unlimited surveillance in the UK was possible due to a lack of transparency and democratic accountability. Any systematic deconstruction of the rule of law results in violations of fundamental rights in a variety of possible ways. Since democracy, the rule of law, and fundamental rights are co-constitutive, throughout the present article they will be discussed together, with due regard to their triangular relationship.

See e.g. for more on the French and Italian cases, Commissioner for Human Rights, Human rights of Roma and Travellers in Europe, Council of Europe, Strasbourg: 2012; for the latter see also Fundamental Rights Agency, Incident Report: Violent attacks against Roma in the Ponticelli district of Naples, Italy, 2008, available at: http://fra.europa.eu/sites/default/files/fra_uploads/196-Incid-Report-Italy-08_en.pdf (accessed 30 May 2017). D. Bigo, S. Carrera, N. Hernanz, J. Jeandesboz, J. Parkin, F. Ragazzi & A. Scherrer on behalf of the European Parliament, National programmes for mass surveillance of personal data in EU Member States and their compatibility with EU law, 2013, available at: http://www.europarl.europa.eu/RegData/etudes/ etudes/join/2013/493032/IPOL-LIBE_ET(2013)493032_EN.pdf (accessed 30 May 2017). European Parliament resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130(INI)), commonly called “the Tavares Report” after its Rapporteur. See College Orientation Debate on recent developments in Poland and the Rule of Law Framework, Brussels, 13 January 2016, available at: http://europa.eu/rapid/press-release_MEMO-16-62_en.htm (accessed 30 May 2017). Fundamental Rights Agency, Incident Report: Violent attacks against Roma in the Ponticelli district of Naples, Italy, 2008, available at: http://fra.europa.eu/sites/default/files/fra_uploads/196-Incid-Report- Italy-08_en.pdf (accessed 30 May 2017). S. Carrera, E. Guild and N. Hernanz, The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU, Towards an EU Copenhagen Mechanism, CEPS 2013, available at: http://www.ceps.eu/system/files/Fundamental%20Rights%20DemocracyandRoL.pdf; the original study done for the Directorate General for Internal Policies of the European Parliament, PE 493.031; 2013, is available at: http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/493031/IPOL-LIBE_ ET(2013)493031_EN.pdf; S. Carrera, E. Guild and N. Hernanz, Rule of law or rule of thumb. A new Copenhagen mechanism for the EU, CEPS policy brief, 2013, available at: http://www.ceps.eu/system/files/ 190 Petra Bárd

1. Rationale of the EU’s Rule of Law scrutiny

1.1. Upholding the Rule of Law in the EU and the Member States As Samuel P. Huntington famously claimed “[e]lections, open, free and fair, are the essence of democracy, the inescapable sine qua non. Governments produced by elections may be inefficient, corrupt, shortsighted, irresponsible, dominated by special interests, and incapable of adopting policies demanded by the public good. These qualities make such governments undesirable, but they do not make them undemocratic. Democracy is one public virtue, not the only one, and the relation of democracy to other public virtues and vices can only be understood if democracy is clearly distinguished from other characteristics of political systems.”10 A challenge facing any rule-of-law debate at the EU level relates to its conceptual vagueness. The notion of rule of law is elusive and controversial. The thematic contributions composing the CEPS report on “The triangular relationship between Fundamental rights, Democracy and Rule of law in the EU – Towards an EU Copenhagen Mecha- nism”11 revealed that there is an “embeddedness” of the term “rule of law” in specific national historical diversities of a political, institutional, legal, and even imaginary nature. In addition, legal theory distinguishes between various concepts of the “rule of law”, although there are also some uncontroversial common elements. Both the “thin” and “thick” concepts of the rule of law require more than rules created by an elected majority.12 Even the thinnest understanding, claiming that any law that a democrati- cally-elected Parliament passes can be the foundation for the rule of law, presupposes a minimum element: that people retain the right of expressing their discontent at least at the next democratic, i.e. free and fair, elections.13 Raz prescribes “(1) that people should

No%20303%20Copenhagen%20Mechanism%20for%20Fundamental%20Rights_0.pdf (all accessed 30 May 2017). Cf. also Council of Europe (Parliamentary Assembly), Report of the Committee on Legal Affairs and Human Rights: The Principle of the Rule of Law, 11343, (2007), para. 5. 10 S. P. Huntington, The Third Wave: Democratization in the Late Twentieth Century, University of Oklahoma Press, Norman: 1991, pp. 9-10. 11 Carrera, Guild & Hernanz (The Triangular Relationship…), supra note 9. 12 Adherents of a formal theory, while emphasizing the distinction between rule of law and other values, go beyond legitimacy through majority rule and look into the authority of the lawmaker, procedure, form, clarity and stability of the norm, and the temporal dimension of the law, i.e. the prohibition of retroactivity; an independent judiciary; access to the courts; and the requirement that norms should be based on clear rules and the discretion left to law enforcement agencies shall not be allowed to undermine the purposes of the relevant rules. Even those who emphasize the legitimizing power of majority rule as the cornerstone of all political order maintain that dissatisfied citizens reserve a lasting right to revolution. See J. Raz, The Autority of Law: Oxford University Press, Oxford: 1979, p. 210; J. Locke, Second Treatise, § 240. See also N. Luhmann, Legitimation durch Verfahren, Suhrkamp, Frankfurt: 1983. Proponents of substantive rule of law requirements focus on the content, i.e. substance of the laws, which in their views must reflect certain values such as justice, equality, or human rights. For a summary, see B. Z. Tamanaha, A Concise Guide to the Rule of Law, in: G: Palombella and N. Walker (eds.), Relocating the Rule of Law, Hart Publishing, Portland: 2009, p. 4. 13 J. A. Schumpeter, Capitalism, socialism, and democracy, Harper Collins, New York: 1950. Scrutiny over the Rule of Law in the European Union 191 be ruled by the law and obey it, and (2) that the law should be such that people will be able to be guided by it.”14 Fuller identifies a number of principles, such as generality, publicity, prospectivity, clarity, consistency, the possibility of compliance, constancy, and faithful administration of the law.15 Before going on to examine further potential constituent elements, Krygier’s warning should be borne in mind: it is impossible to list the prerequisites of the rule of law in anatomical terms; instead it should be seen as a teleological notion.16 Weber brings us closer to the desired objective: Although they have good chances to survive, neither traditional nor charismatic authority will render a system legitimate without adhering to some minimum element of rationality,17 which is often formulated as salus populi suprema lex esto,18 the good of the people as the supreme law. A social contract can never be rewritten in a way that does not respect at least this minimum requirement.19 Dworkin straightforwardly rejects the value of majoritarianism as a legitimizing force,20 and searches for the substantive value behind majority rule, which he traces in political equality.21 Along these lines he argues for an alternative concept of democracy, which he calls the partnership conception,22 meaning “government by the people as a whole acting as partners in a joint-venture of self-government.” In the same vein, Sajó argues23 that the majority – and even more the supermajority – of MPs in

14 Raz, supra note 12, pp. 212-213 15 L. Fuller, The Morality of Law, Yale University Press, New Haven: 1969, p. 43. 16 According to Krygier, the rule of law is “concerned with the morphology of particular legal structures and practices, whatever they turn out to do. For even if the structures are just as we want them and yet the law doesn’t rule, we don’t have the rule of law. And conversely, if the institutions are not those we expected, but they do what we want from the rule of law, then arguably we do have it. We seek the rule of law for purposes, enjoy it for reasons. Unless we seek first to clarify those purposes and reasons, and in their light explore what would be needed and assess what is offered to approach them, we are bound to be flying blind.” M. Krygier, Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares?, Talk delivered as the 2010 Annual Lecture of the Centre for Law & Society, University of Edinburgh, 18 June 2010, UNSW Law Research Paper No. 2010-22, available at SSRN: http://ssrn.com/abstract=1627465 (accessed 30 May 2017). 17 M. Weber, Politik als Beruf, Duncker & Humblot, München und Leipzig: 1919. 18 Originally mentioned by Marcus Tullius Cicero, de Legibus (book III, part III, sub. VIII), as ollis salus populi suprema lex esto, also referenced by Locke in the Second Treaties and Hobbes in his Leviathan, believing that it is rationality that makes men abandon the natural state of mankind, i.e. the state of bellum omnium contra omnes. For a summary, see P. Costa, The Rule of Law. A Historical Introduction, Springer, Dordrecht: 2009, pp. 73-74. 19 Cf. V. Orbán, Új társadalmi szerződés született (A new social contract was born), Demokrata, 25 May 2010, available at: http://www.demokrata.hucikk/orban_uj_tarsadalmi_szerzodes_szuletett/ (accessed 30 May 2017). 20 R. Dworkin, What Is Democracy, in: G. A. Tóth (ed.), Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law, CEU Press, Budapest: 2012, pp. 25-34, 31. 21 Ibidem, at 29. 22 Ibidem, pp. 26 and 31. 23 A. Sajó, Courts as representatives, or representation without representatives, speech delivered in Yerevan, Armenia at the conference on TheE uropean standards of rule of law and the scope of discretion of powers in the Member State of the Council of Europe, 3–5 July 2013. 192 Petra Bárd so-called representative democracies might subvert a rule of law, first by not representing the majority of voters, i.e. by not fulfilling the promises made during the election campaign,24 and second, by becoming too responsive to popular wishes, denying the rule of law to the powerless, mainly those who do not constitute part of the electorate. Joseph Goebbels infamously held that “[i]t will always be one of the best jokes of democracy that it gives its deadly enemies the means to destroy it.”25 Against this background, in order to prevent this weakness of democracies, the concept of “militant democracy”26 was introduced, which refers to the capacity of modern constitutional democracies to defend themselves against domestic political challenges to their existence as democracies.27 In a militant democracy, societal norms are based on the rule of law, and built-in correction mechanisms compensate for the deficiencies of a majoritarian government: in the first scenario it makes good the consequences of departing from identity politics, whereas in the second it compensates for the weaknesses of identity politics, either by granting participation to those groups who have been excluded from “we the people” or by representing their interests while being excluded.28 In this sense international correction mechanisms can be seen as a means of militant democracy, operating along the logic of constitutional law by inserting precautionary measures into democratic systems to protect them against a future potential government acquiring and retaining power at all costs, i.e. by superseding constitutional government through populism and emotional politics.29 If militant democracy fails in the domestic arena, it means that all elements of a constitutional rule of law are jeopardized, whichever understanding of the term one adheres to.30 Even the thinnest understanding of the rule of law, requiring only that democratic elections are regularly held, is hampered. In a country where domestic checks fail, the only thing left is the control mechanism of international law, including international courts protecting the rule of law.31 Accordingly we regard international and EU norms

24 A. Sajó is arguing about the need for the representatives to be responsive to popular demands. H. F. Pitkin, The Concept of Representation, University of California Press, Los Angeles: 1967. 25 Cited by S. Holmes in his review of A. Sajó (ed.), Militant Democracy, Eleven International Publishing, 2004. p. 262 (4(3) International Journal of Constitutional Law 586 (2006)). 26 For a full description, see K. Loewenstein, Militant Democracy and Fundamental Rights, 31 American Political Science Review 417 (1937). 27 A. Sajó (ed.), Militant Democracy, Eleven International Publishing, Utrecht: 2004. 28 Sajó, supra note 23. 29 For more on international mechanisms correcting the failure of domestic law to protect minorities, see e.g. A. Verdross, Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung, Mohr, Tübingen: 1923. 30 See e.g. Z. Fleck, A bizonytalan jövő, (The uncertain future), Norman, 15 July 2013, available at: http://www.galamuscsoport.hu/tartalom/cikk/315230_a_bizonytalan_jovo (accessed 30 May 2017). 31 Cf. In contemporary Europe, some of the most important institutional checks on power are those exercised by the EU and the broader international community, rather than anything within Hungary itself. F. Fukuyama, Do Institutions Really Matter? The American Interest, 23 January 2012, available at: http:// blogs.the-american-interest.com/fukuyama/2012/01/23/do-institutions-really-matter/#sthash.DOa5ys3f. dpuf (accessed 30 May 2017). Scrutiny over the Rule of Law in the European Union 193 and enforcement mechanisms as external tools of militant democracy whereby the unrepresented – whether an unrepresented majority or an oppressed minority – are granted protection against their substandard representatives when all domestic channels of criticism have been effectively silenced and all domestic safeguards of democracy have become inoperative – in short, when the rule of law has been effectively deconstructed in the national setting.

1.2. Upholding the specificities of the EU and EU law For the first time in EU history, the Lisbon Treaty expressly referred to Union values, replacing the previous, less extensive principles. Article 2 TEU makes clear – this time via means of positive law – that the EU is a Wertegemeinschaft,32 a community based on common values. TheE U views the rule of law as one of its raisons d’être, and recognizes the rule of law as being one of the interrelated trinity of concepts already referred to above. These values were reinforced with the entry into force of the Charter of Fundamental Rights. When asked about the values that characterize the European Union the best, peace, human rights, democracy and the rule of law are placed at the top of the list by EU citizens. For individual Europeans personally, peace, human rights and respect for human life are the values that matter most.33 However, the EU lacks an enforcement mechanism to ensure that these fundamental values are respected. The challenge underlying enforcement lies at the heart of the debates about the conferral of powers and national sovereignty, and subsidiarity and proportionality, i.e., about the vertical separation of powers between the EU and its constitutive elements. Member States, with special concern for purely internal affairs, repeatedly question the legitimacy of EU interference into domestic affairs. But there would be something paradoxical about confining the Union’s possibilities of action to the areas covered by Union law, and asking it to ignore serious breaches of its basic values in areas subject to national jurisdiction. If a Member State breaches the EU’s fundamental values, this is likely to undermine the very foundations of the Union and the trust between its Member States, regardless of the field in which the breach occurs.34 Beyond harming the nationals of a Member State, Union citizens residing in that state will also be detrimentally affected. A lack of limitations on “illiberal practices”35

32 See e.g. K. Adenauer’s address on 7 December 1951 at the Foreign Press Association in London, in: Bulletin des Presse- und Informationsamtes der Bundesregierung No. 19/51, p. 314. 33 See Eurobarometer 82 for autumn 2014. 34 European Commission (2003), Communication on Article 7 of the Treaty on European Union - Respect for and promotion of the values on which the Union is based, COM(2003) 606 final, 15 October 2003, p. 5. 35 The term “illiberal democracy: was coined long ago, but it gained practical relevance in the EU after Hungarian Prime Minister praised it in his speech given in Tusnádfürdő on 25 July 2014. The original speech is accessible in video format via https://www.youtube.com/watch?v=PXP-6n1G8ls (accessed 30 May 2017). Cf. Frans Timmermans’ speech: “There is no such thing as an illiberal democracy”. FransT immermans, EU framework for democracy, rule of law and fundamental rights, Speech to the European Parliament, Strasbourg, Speech/15/4402, 12 February 2015. 194 Petra Bárd may encourage other Member States’ governments to follow suit, and subject other countries’ citizens to an abuse of their rights. In other words, violations of the rule of law may, if there are no consequences, become contagious.36 Moreover, all EU citizens will to some extent suffer due to the given state’s participation in the EU’s decision- making mechanisms, or at the very least the legitimacy of the Union’s decision-making process will be jeopardized. Thus a state’s departure from the rule of law standards and the European consensus will ultimately hamper the exercise of rights of individuals EU-wide. Here one should also address an important specificity ofE U law, namely the nature and future faith of instruments covering the AFSJ. As long as fundamental rights are not enforced in a uniform manner throughout the Union, and for as long as a Mem- ber State cannot take the judicial independence of another Member State for granted, mutual trust and mutual recognition based on instruments in the AFSJ will be jeopardized.37 As long as certain Member States are worried about their citizens’ basic rights and respect for their procedural guarantees due to different fundamental rights standards, they leave short-cuts in their legislation so as not to enforce EU law, and at the same time will interpret EU law in a restrictive way.38 And as long as the Member States – with or without good reason – have no faith in each others’ human rights protection mechanisms, the administration of EU criminal justice will remain cumbersome39 and the Member States may invoke the protection of basic human rights in order to permit exemptions from the principle of the primacy of EU law, which could potentially have fatal consequences to the EU legal system.40 The CJEU has accepted that the presumption of EU Member States’ compliance with fundamental rights may be rebuttable.41 If EU Member States cannot properly

36 V. Orbán: The conservative subversive, Politico 28, 2015, pp. 12–15, 15. 37 As the CJEU has recently stated “…the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law.” Opinion 2/13 on the compatibility of the draft agreement on the EU accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) with the EU and TFEU Treaties of 13 December 2014, CJEU, para. 191. 38 G. Vermeulen, W. De Bondt, Ch. Ryckman (eds.), Rethinking international cooperation in criminal matters in the EU. Moving beyond actors, bringing logic back, footed in reality, Maklu, Antwerpen, Apeldoorn, Portland: 2012, 269–270. 39 W. Van Ballegooij, P. Bárd, Mutual Recognition and Individual Rights: Did the Court Get It Right? 7 New Journal of European Criminal Law 439 (2016). 40 See the seminal Solange cases of the German Federal Constitutional Court: Solange I, BvL 52/71, BVerfGE 37, 271, 29 May 1974; Solange II, 2 BvR 197/83, BVerfGE 73, 339, 22 October 1986. 41 The Court of Justice of the European Union, in Joined Cases C-411/10 and C-493/10, N.S. and M.E., 21 December 2011, para. 80, states that: “it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter, the Geneva Convention and the ECHR”, and para. 104 states, “[i]n those circumstances, the presumption underlying the relevant Scrutiny over the Rule of Law in the European Union 195 ensure an efficient, human rights-compliant and independent judiciary to carry out the task of ensuring compliance, how could the principle of mutual recognition possibly stand in EU JHA law?42 The establishment of a uniformE U human rights regime might be the answer to this problem. The heads of states and governments reached the same conclusion in the Stockholm program, which is surprisingly candid regarding the principle of mutual recognition. The Stockholm program expresses a straightforward criticism that mutual trust, which was the alleged cornerstone of several third pillar documents adopted after 11 Sep- tember 2001, was in reality absent, and offers a program aimed at establishing it. In order to remedy the problem and create trust, the multi-annual program proposes legal harmonisation. “The approximation, where necessary, of substantive and procedural law should facilitate mutual recognition.”43 By 2012 several important EU laws were passed to this effect, for instance on the right to interpretation and translation in criminal proceedings, the right to information in criminal proceedings, and the establishment of minimum standards on the rights, support and protection of victims of crime – issues all covered in the Justice chapter of the Charter of Fundamental Rights.44 The development of judicial cooperation as illustrated above supports the neo-func- tionalist explanation of the evolution of European integration. At the early stage of integration, Members States declined each and every rudimentary formal criminal cooperation. The free movement of persons within the area of freedom, security and justice, in addition to the formation of subjects of legal protection at the Community level, ne- cessitated common criminal investigations and cooperation in European decision-making (the first spill-over effect).45 The initially stalling of criminal cooperation and the Member States’ fear of losing a considerable part of their national criminal sovereignty resulted in the formation of norms that were highly influenced by politics, difficult to legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable”, and para. 106 reads, “Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.” 42 S. Carrera, E. Guild, Implementing the Lisbon Treaty Improving the Functioning of the EU on Justice and Home Affairs, European Parliament, Brussels: 2015. 43 Stockholm Programme, Section 3.1.1. 44 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings; Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings; Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council framework decision 2001/220/JHA. 45 E. B Haas, Beyond the Nation-state, Stanford University Press, Stanford: 1964; P. C. Schmitter, Three Neo-functional Hypotheses About International Integration, 23(2) International Organization 161 (1969). 196 Petra Bárd enforce, and represented lower levels of cooperation: instead of legal harmonisation the adopted provisions complied with the principle of mutual recognition. However, in the face of a lack of adequate, communautarised, enforceable minimum procedural guarantees and human rights mechanism, such provisions were unable to operate effectively. Currently we are witnessing how due process guarantees comple- ment existing provisions, and how an EU criminal procedural law system evolves, as a second spill-over effect, in order to maintain and promote effective cooperation in criminal matters. This is how a minimum harmonisation of due process guarantees or, in other words making fundamental rights justiciable, permits mutual recognition- based laws to survive. Beyond the political costs of the democracy, rule of law, and fundamental rights deficits, the social and economic costs should also be mentioned. When discussing social costs, the point of departure must be the deficiency of democracies, which results in the depreciation of the other two values. Namely, the elected legislative branch suffers from some shortcomings concerning representativeness. They might turn against those who elected them, not fulfilling their promises in the electoral campaign, but also – and for our purposes more importantly – they may exclude certain groups of people from representation. On the one hand these might be those groups which voted against the representatives, but on the other might include those who are excluded altogether from any political representation. They are denied even the most fundamental, first generation human right, namely the right to vote. These are the groups that are traditionally called – depending on the jurisdiction in question – insular or vulnerable minorities, such as children, individuals living with mental disabilities, and certain groups of foreigners. Lacking political rights, they are typically protected by the judiciary, first and foremost by the apex courts.46 Depreciation of the rule of law thus hits these individuals much harder than those capable of influencing electoral processes to some extent. Finally, a state based on democracy, the rule of law, and fundamental rights creates an institutional climate that is a determinant for economic performance. Especially in times of financial and economic crises, solid state institutions based on commonly shared values play a key role in creating or restoring confidence and fostering economic growth. The impact of national justice systems on the economy has been demonstrated in many cases by the International Monetary Fund, the European Central Bank, the OECD, the World Economic Forum and the World Bank.47

46 A Sajó, supra note 23. 47 The 2015 EU Justice Scoreboard, Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions, COM(2015) 116 final; Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions, The 2014 EU Justice Scoreboard, COM/2014/0155 final; cf. also European Commission, The Economic Impact of Civil Justice Reforms, Economic Papers 530, September 2014; What makes civil justice effective?, OECD Economics Department Policy Notes, No. 18 June 2013 and The Economics of Civil Justice: New Cross-Country Data and Empirics, OECD Economics Department Working Papers, No. 1060. Scrutiny over the Rule of Law in the European Union 197

2. EU attempts at monitoring and enforcing the Rule of Law

History and recent events have proven that the Copenhagen dilemma is currently a very vivid one in the EU. It exists despite the fact that the EU, under the current treaty configurations, is already a rule-of-law actor, relying on a set of policy and legal instruments, assessing (to varying degrees) Member States’ compliance with democracy, the rule of law, and fundamental rights.48 The dilemma exists because these mechanisms constitute a scattered and patchwork set of Member States’ EU surveillance systems as regards their obligations enshrined in Article 2 TEU and the Charter of Fundamental Rights. The only “hard law” with a treaty basis is Article 7TE U. Article 7 consists of a preventive arm (determining a clear risk of a breach), and a corrective arm (determining a serious and persistent breach). The scope of its application is remarkably broad and has the clear advantage that, as compared to other mechanisms, it is not only limited to Member States’ actions when implementing EU law, but also covers breaches in areas where they act auto nomously. It also provides for more or less clear sanctions: if there is a serious and persistent breach by a Member State of the values referred to in Article 2, this Member State might be sanctioned and even be suspended from voting at the Council level. However, Article 7 has never been activated in practice due to a number of political and legal obstacles. There are otherE U-level instruments for evaluating and monitoring (yet not directly supervising) Article 2-related principles at the Member-State level. These include, for instance, the Cooperation and Verification Mechanism (CVM) for Bulgaria and Ro- mania, the EU Justice Scoreboard, the EU Anti-Corruption Report, as well as the Eu- ropean Semester, Annual Reports on Fundamental Rights published periodically by the European Commission, the European Parliament and the Fundamental Rights Agency (FRA), Commission infringement procedures (Articles 258 and 259 of the Treaty on the Functioning of the European Union, TFEU), peer reviews in accordance with Article 70 TFEU, and European Parliament resolutions. One should also take into account UN processes and procedures, and the Council of Europe, including the Venice Commission reports. Furthermore, there are ample available data from other sources as well. But all these mechanisms present a number of methodological challenges. First, they constitute ‘soft policy’, because they are not legally binding, relying on the use of benchmarking techniques, exchanges of “good practices”, and mutual learning processes between Member States. Second, they are strongly affected by politicisation, and as a consequence make use of non-neutral and subjective evaluation methodologies. Third, many of these mechanisms are characterized by a lack of democratic accountability and judicial control gaps, with a limited or even nonexistent role for the European Parlia- ment and the Court of Justice of the European Union.49

48 Ibidem. 49 J. Mortensen, Economic Policy Coordination in the Economic and Monetary Union: From Maastricht via the SGP to the Fiscal Pact, CEPS Working Document No. 381 (2013), Centre for European Policy Studies, Brussels. 198 Petra Bárd

In response to these deficiencies,E uropean institutions have called for reforms. The European Parliament initiated the establishment of a clear and detailed EU mechanism on democracy, the rule of law, and fundamental rights:50 it called for an EU mechanism for compliance with and enforcement of the Charter of Fundamental Rights and the Treaties – embracing all the values protected by Article 2 TEU – relying on common and objective indicators; and for carrying out regular assessments on the situation of fundamental rights, democracy and the rule of law in all Member States.51 It was proposed to establish a scoreboard on the basis of common and objective indicators by which democracy, the rule of law and fundamental rights could be measured. Its indicators should reflect the Copenhagen political criteria governing accession and the values and rights laid down in Article 2 of the Treaties and the Charter of Fundamental Rights, and be drawn up on the basis of existing standards. The previous European Commission published a Communication in March 2014 on a New EU Framework to Strengthen the Rule of Law.52 According to this document, the purpose of this new EU Framework would be to enable the Commission to find a solution with a given Member State in order to prevent the emergence of a systemic threat to the rule of law in that Member State that could develop into a “clear risk of a serious breach” within the meaning of Article 7 TEU, which would require the mechanisms provided for in that Article to be launched. TheE U Framework would be triggered in situations where EU Member States are adopting measures or tolerating situations which could be expected to systematically and adversely affect, or constitute a threat to, the integrity, stability and proper functioning of their institutions in securing the rule of law. This would include issues related to constitutional structures and separation of powers, the independence or impartiality of the judiciary, or the system of judicial review.53 In those cases where there would be clear indications that there is a “systematic threat” to the rule of law in one Member State, the EU Framework would allow for the initiation of a formal “structured exchange” between the Commission and the given Member State. This exchange would be organized in three stages: first, a Commission assessment, where it would issue a “rule of law opinion” substantiating its concerns and granting the EU Member State the possibility to respond; second, a Commission “rule of law recommendation”, would be issued in cases where the controversy is not resolved, and which would provide a fixed time limit for addressing the concerns and specific indications on ways and measures to address them; and third, a follow-up or monitoring of the rule of law recommendation which, if not satisfactorily addressed, could create the possibility for activating the Article 7 TEU mechanism. As regards the

50 P8_TA-PROV(2015)0227. 51 Ibidem, para. 12. 52 European Commission, Communication, A New EU Framework to Strengthen the Rule of Law, COM(2014)158, 11.3.2014. 53 Ibidem, p. 7. The Communication states: “[t]he Framework will be activated when national ‘rule of law safeguards’ do not seem capable of effectively addressing those threats.” Scrutiny over the Rule of Law in the European Union 199 role of the Parliament and the Council, the Communication highlights that they would be kept “regularly and closely informed of progress made in each of the phases.” While the EU Framework to Strengthen the Rule of Law can be seen as a step in the right direction, it has a number of limitations. First, the monitoring dimension is rather weak in nature. It does not provide for a comparative and regular/periodic assessment, by relevant thematic area (corresponding with the fundamental rights enshrined in the EU Charter), for each individual EU Member State so as to have a country-by-country assessment on the state of the rule of law in each Member State.54 Second, the ways in which the Commission would use existing information and knowledge on specific EU Member States’ practices, and whether it would launch a “rule of law opinion” or a “rule of law recommendation” remains rather discretionary. The assessment would not be carried out by fully independent academic experts who would ensure the full impartiality of the findings. Nor does it provide for any judicial and democratic accountability method (i.e. there are no specific roles for the Parliament or the CJEU) in order for the Commission to take further steps in any of these stages. Third, theE U Framework does not propose any specific model, internal strategy, or policy cycle55 for EU inter-institutional coordination of the findings resulting from the Commission’s rule of law assessment and those from other EU monitoring or evaluation processes of EU Member States’ performances, such as the European semester cycle and soft economic governance.56 The Communication was acknowledged at the General Affairs Council meeting of 18 March 2014.57 But since then it has not been followed up on by the Coun- cil. Instead, EU Member States’ representatives have raised several institutional and procedural questions regarding the Commission’s initiative, which were examined and addressed by the Council Legal Service (CLS) in an Opinion issued in May 2014.58 The CLS emphasized that “respect of the rule of law by the Member States cannot be, under the Treaties, the subject matter of an action by the institutions of the Union irrespective of the existence of a specific material competence to frame this action, with the sole exception of the procedure described in Article 7 TEU.” It concluded that Ar- ticle 7 TEU cannot constitute the appropriate basis to amend this procedure, and that the Commission’s initiative was not compatible with the principle of conferral. It also stated that there is no legal basis in the Treaties empowering the institutions to create a new supervisory mechanism additional to what is laid down in Article 7 TEU with respect to the rule of law in the Member States, nor to amend, modify, or supplement the

54 See Carrera, Guild & Hernanz (The Triangular Relationship…), supra note 9. 55 As proposed by European Parliament, Resolution on the situation of fundamental rights in the EU (2010-2011), P7_TA(2012)0500, Rapporteur: Monika Flašíková Beňová, 22 November 2012. 56 See also European Parliament, Draft Report on the situation of fundamental rights in the European Union (2013-2014), (2014) 2254 (INI), Rapporteur: L. Ferrara, 6 March 2015. 57 Press Release, Council meeting, General Affairs, 3306th, Brussels, 18 March 2014. 58 Council of the EU, Commission’s Communication on a new EU Framework to strengthen the Rule of Law: Compatibility with the Treaties, 10296/14, Brussels, 27 May 2014. 200 Petra Bárd procedure set forth in Article 7. “Were the Council to act along such lines, it would run the risk of being found to have abased its powers by deciding without a legal basis.” The CLS suggested as an alternative the conclusion of an intergovernmental international agreement designed to supplement EU law and to ensure the respect of Article 2 TEU values. This agreement could envisage the participation ofE uropean institutions, and the actual ways by which EU Member States would commit to drawing appropriate conclusions from a ‘review system’. Kochenov and Pech have expressed concerns about the CLS Opinion and rightly argued that … since the Commission is one of the institutions empowered, under Article 7 TEU, to trigger the procedure contained therein, it should in fact be commended for establishing clear guidelines on how such triggering is to function in practice. In other words, a strong and convincing argument can no doubt be made that Article 7(1) TEU already and necessarily implicitly empowers the Commission to investigate any potential risk of a serious breach of the EU’s values by giving it the competence to submit a reasoned proposal to the Council, should the Commission be of the view that Article 7 TEU ought to be triggered on this basis. Moreover, given the overwhelming level of interdependence between the EU Member States, and the blatant disregard for EU values in at least one EU country, the Commission fulfilled its duty as Guardian of the Treaties by putting forward a framework that would make Article 2 TEU operational in practice.59 The General Affairs Council of 16 December 2014 adopted Conclusions on ensuring respect for the rule of law.60 The Council committed itself to establishing a dialogue among all EU Member States to promote and safeguard the rule of law “in the framework of the Treaties”. The Conclusions underline that this “dialogue” will be based on the principles of objectivity, equality and non-discrimination between EU Member States, and it will be driven by an evidence-based and non-partisan approach. The Council also agreed that this dialogue will take place once a year in the Council General Affairs configuration and be prepared by RECO PER (Presidency), and consideration is given to launching debates on thematic subject areas. By the end of 2016, the General Affairs Council was to evaluate the experience.61 It is not clear what actual outputs such a dialogue will produce or the ways in which the principles of objectivity, an evidence-based approach, and non-politicisation will be guaranteed in practice. Such an inter-governmental framework of cooperation cannot be conducive to effectively addressing the current rule of law challenges across the Union. In any case, without the Council ever expressing its approval, the Commission’s initiative for an EU Framework to Strengthen the Rule of Law is being tested at the time of writing the present article. TheE U Framework – commonly known as the pre-

59 See D. Kochenov and L. Pech, Upholding the Rule of Law in the EU: On the Commission’s Pre-Article 7 Procedure as a Timid Step towards the Right Direction, EUI Working Papers, RSCAS 2015/24, Florence, p. 11. 60 See www.consilium.europa.eu/en/meetings/gac/2014/12/16. 61 Council of the European Union, Rule of Law: Evaluation of mechanism, 13980/16, Brussels, 9 November 2016. Scrutiny over the Rule of Law in the European Union 201

Article 7 procedure – was triggered against Poland.62 The application of the pre-Article 7 EU Framework procedure raises numerous questions. The triggering of theE U Rule of Law Framework against one Member State, i.e. Poland, but not another, namely Hungary – where constitutional capture happened much earlier – may call into question the objectivity and impartiality of the EU rule of law system, and the principle of equal treatment of all Member States.63 The case for criticising EU institutions is particularly strong because the problems in Hungary and Poland are very similar and closely interrelated; in fact, it seems as if the latter was mimicking the former. Thus it seems as if the Commission acted arbitrarily and in an unequal manner, or worse, as if it was influenced by political bias, i.e. the Hungarian governing party Fidesz, belonging to the large party family of the European Peoples’ Party, seems to have been given more leeway in departing from EU values than the Pol- ish Law and Justice Party, which is affiliated with the less influential group Eof uropean Conservatives and Reformists.64 Apart from the issues surrounding the objectivity of the process and the equal treatment of Member States, the actual use of the EU Rule of Law Framework vis-à-vis Po- land also raises numerous questions concerning the procedure’s effectiveness. Uphold- ing and promoting European values may follow a “‘sunshine policy’, which engages and involves rather than paralyses and excludes”, or a “value-control which is owned equally by all actors”65 – but only if the Member State in question is playing by the rules, i.e. if it accepts the validity of European norms and values and the power of European institutions to supervise these. “Since the success of such a positive approach is very much dependent on the willingness of the recipients to adhere to the concept of cooperative constitutionalism, it will not work when a state systematically undermines democracy, deconstructs the rule of law and/or engages in massive human right violations. There is no reason to presume the good intentions of those in power to engage in a sunshine approach involving a dialogue and soft measures to make the entity return to the concept of limited government – a notion that those in power wished to abandon in the first

62 See http://ec.europa.eu/news/2016/01/20160113_en.htm where it is stated that “[t]he College agreed to come back to the matter by mid-March, in close cooperation with the Venice Commission of the Council of Europe. Echoing what President Juncker said last week, First Vice-President Timmermans underlined after the College meeting that this is not about accusations and polemics, but about finding solutions in a spirit of dialogue. He underlined his readiness to go to Warsaw in this context.” See also http://europa.eu/rapid/press-release_MEMO-16-62_en.htm. 63 For immediate criticism, see D. Kochenov, The Commission vs. Poland: The Sovereign State Is Winning 1-0, 25 January 2016, available at: http://verfassungsblog.de/the-commission-vs-poland-the-sovereign- state-is-winning-1-0/; G. Gotev, Tavares: Discussing rule of law in Poland separately from Hungary will lead ‘nowhere’, 13 January 2016, available at: http://www.euractiv.com/sections/justice-home-affairs/tavares- discussing-rule-law-poland-separately-hungary-will-lead (both accessed 30 May 2017). 64 Gotev, supra note 63. 65 G.N. Toggenburg and J. Grimheden, The Rule of Law and the Role of Fundamental Rights: Seven Practical Pointers, in: C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union, Cambridge University Press, Cambridge: 2016. 202 Petra Bárd place.”66 Indeed, instead of deliberation and discourse, the procedure vis-à-vis Poland has turned into a “dialogue of the deaf”.67 Inasmuch as the negotiations between the Commission and the Polish government remained fruitless, the Commission formalised its concerns in its Opinion of 1 June 2016.68 These again remained without echo, so the Commission went on to issue its Rule of Law Recommendation of 27 July 2016 with regard to the decisions and con- stellation of the Polish Constitutional Tribunal, with a deadline set to expire on 27 Oc- tober 2016.69 Knowing the stance of the Polish government, it was unsurprising that the Recommendation did not have any effects. Instead the governing Law and Justice party (known as PiS, the Polish acronym for Prawo i Sprawiedliwość) called into question the power of the Commission to issue such a recommendation,70 and continued to systematically limit the independence of and worsen the overall situation within the Constitutional Tribunal of Poland.71 Even European Commission President Jean- Claude Juncker became ever more skeptical about the effectiveness of the EU Rule of Law Framework.72 Nevertheless, instead of launching an Article 7 TEU procedure, in a pathetic attempt to gain more time a complementary recommendation was adopted

66 P. Bárd, S. Carrera, E. Guild, D. Kochenov, An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights, Center for European Policy Studies (CEPS), Brussels: 2016, p. 41. See also D. Kochenov, L. Pech, Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality, 11(3) European Constitutional Law Review 512 (2015). 67 K. L. Scheppele, L. Pech, Poland and the European Commission, Part I: A Dialogue of the Deaf?, 3 January 2017, available at: http://verfassungsblog.de/poland-and-the-european-commission-part-i-a-dialogue-of-the-deaf/ (accessed 30 May 2017). 68 See http://europa.eu/rapid/press-release_MEMO-16-2017_en.htm, for the full text and its analysis see L. Pech, Commission Opinion of 1 June 2016 regarding the Rule of Law in Poland: Full text now available, 19 August 2016, available at: http://eulawanalysis.blogspot.de/2016/08/commission-opinion-of-1-june- 2016.html (both accessed 30 May 2017). 69 Commission Recommendation regarding the rule of law in Poland, 27 July 2016, C(2016) 5703 final 70 “If the Commission continues to press its unprecedented rule of law procedure against Poland, the country could issue a challenge to the European Court of Justice ‘at any time,’ warned Jarosław Kaczyński, leader of the ruling Law and Justice party and Poland’s most powerful politician, adding that the inquiry was ‘dreamed up’ and went beyond what is allowed by EU treaties.” Jan Cienski and Maïa de La Baume, Poland and Commission plan crisis talks. Warsaw warns it could challenge the Brussels rule of law probe in the EU’s highest court, 30 May 2016, available at: http://www.politico.eu/article/poland-and-commission- plan-crisis-talks/ (accessed 30 May 2017). 71 See e.g T. Koncewicz, Constitutional justice in Handcuffs? Gloves are off in the Polish Constitutional Conflict, 3 September 2016, available at: http://verfassungsblog.de/constitutional-justice-in-handcuffs- gloves-are-off-in-the-polish-constitutional-conflict/; T. Koncewicz, Constitutional Capture in Poland 2016 and Beyond: What is Next?, 19 December 2016, available at: http://verfassungsblog.de/constitutional- capture-in-poland-2016-and-beyond-what-is-next (both accessed 30 May 2017). 72 J. Kuczkiewicz, Juncker au «Soir»: «Il y a un sérieux problème de gouvernance en Europe», Le Soir, 5 November 2016, available at: http://www.lesoir.be/1360084/article/actualite/union-europeenne/2016-11- 04/juncker-au-soir-il-y-un-serieux-probleme-gouvernance-en-europe. For an assessment of Mr. Juncker’s statement, see L. Pech, K. L. Scheppele, The EU and Poland: Giving up on the Rule of Law?, 15 November 2015, available at: http://verfassungsblog.de/the-eu-and-poland-giving-up-on-the-rule-of-law/ (both accessed 30 May 2017). Scrutiny over the Rule of Law in the European Union 203 by the Commission on 21 December 2016,73 giving the Polish government another two months to comply with the recommendation. That deadline will soon expire, and one does not need an oracle to foresee that the PiS government will fail to comply. What is more, the postponement of the deadline allowed the PiS government sufficient time to entirely capture the Constitutional Tribunal. As Professors Scheppele and Pech put it: “The Commission’s new Recommendation was therefore dead on arrival, since the events it tried to forestall had already come to pass. The Commission’s delay and continued reluctance to start the sanctions process will make it harder for any external pressure to undo the damage.”74 As the Polish Human Rights Commissioner Adam Bodnar laconically put it: “The struggle for the independence of theT ribunal is lost.”75 As a result, the Commission is increasingly losing face and credibility in the eyes of the public by its investment of time and energy into avoiding the launch of Article 7 TEU. The fact that the Parliament and the Council are continuing with their own rule of law agendas, often in conflict with the Commission’s positions, can be seen as further evidence proving that the Commission is incapable of fulfilling its function and enforcing the Treaty provisions on EU values or representing the European interest. The Commis- sion could, however, benefit from these debates by giving thoughtful consideration to other European institutions’ responses. TheE uropean Parliament initiated a Legislative Own-Initiative Report on the establishment of an EU mechanism on democracy, the rule of law, and fundamental rights (EU Rule of Law mechanism). Building on several past EP resolutions,76 but mainly on the Resolution of 10 June 2015 on the situation in Hungary,77 the Legislative Own-Initiative Report was initiated based on the attempts to establish an EU mechanism on democracy, the rule of law and fundamental rights in order to present recommendations to the Commission as regards an EU mechanism as a tool for compliance with and enforcement of the Charter of Fundamental Rights and the Treaties, relying on common and objective indicators. In its Resolution adopted in a Plenary session on 8 September 2015,78 the Parlia- ment called on the Commission to draft an internal strategy on the rule of law

73 Commission Recommendation regarding the rule of law in Poland, complementary to Commission Recommendation (EU) 2016/1374, Brussels, 21 December 2016, C(2016) 8950 final. 74 K. L. Scheppele, L. Pech, Poland and the European Commission, Part II: Hearing the Siren Song of the Rule of Law, 6 January 2017, available at: http://verfassungsblog.de/poland-and-the-european-commission-part-ii-hearing-the-siren-song-of-the-rule-of-law/ (accessed 30 May 2017). 75 M. Steinbeis, Is the EU Commission’s Rule of Law Fight about Poland already lost?, 17 October 2016, available at: http://verfassungsblog.de/is-the-eu-commissions-rule-of-law-fight-about-poland-already-lost/ (accessed 30 May 2017). 76 See e.g. European Parliament resolution of 27 February 2014 on the situation of fundamental rights in the European Union (2012), European Parliament resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012), European Parliament resolution of 12 March 2014 on evaluation of justice in relation to criminal justice and the rule of law. 77 P8_TA-PROV(2015)0227, para. 12. 78 P8_TA-PROV(2015)0286. 204 Petra Bárd

accompanied by a clear and detailed new mechanism, soundly based on international and European law and embracing all the values protected by Article 2 TEU, in order to ensure coherence with the Strategic Framework on Human Rights and Democracy already applied in EU external relations and render the European institutions and Member States accountable for their actions and omissions with regard to fundamental rights. The tools mentioned include the establishment of a scoreboard on the basis of common and objective indicators by which democracy, the rule of law and fundamental rights will be measured; constant monitoring, based on the established scoreboard and a system of annual country assessment; empowering the Fundamental Rights Agency to monitor the rule of law situation in Member States; issuing a formal warning if the indicators show that Member States are violating the rule of law or fundamental rights; and improvement of coordination between the EU institutions and agencies, Member States, the Council of Europe, the United Nations and civil society organizations.79 The European Parliament in October 2016 passed a Resolution calling upon the Commis- sion to initiate legislation on a comprehensive rule of law, democracy, and fundamental rights Scoreboard.80

2.1. TheS coreboard As a first step, the EU could monitor the situation of the rule of law, democracy and fundamental rights by taking into account the many assessments, country-reports, checklists, and indicators developed to measure and monitor countries’ adherence to democracy, the rule of law and fundamental rights outside the EU framework, while simultaneously developing its own Scoreboard. These assessments and instruments include, but are not limited to: the Worldwide Governance Indicators (WGI) project,81 the United Nations Rule of Law Indicators,82 the World Justice Project Rule of Law Index,83 and the Venice Commission’s checklist for evaluating the state of the rule of law in individual states.84 Country reports and monitoring provided by actors such

79 Ibidem, para. 10. 80 European Parliament resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), P8_TA-PROV(2016)0409; W. van Ballegooij, T. Evas, An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights, Interim European Added Value Assessment accompanying the Legislative initiative report (Rapporteur Sophie in ‘t Veld), European Parliamentary Research Service, October 2016, PE.579.328; Annex I, L. Pech, E. Wennerström, V. Leigh, A. Markowska, L. De Keyser, A. Gómez Rojo and H. Spanikova, Assessing the need and possibilities for the establishment of an EU scoreboard on democracy, the rule of law and fundamental rights; Annex II, P. Bárd, S. Carrera, E. Guild and D. Kochenov, with a thematic contribution by W. Marneffe,Assessing the need and possibilities for the establishment of an EU Scoreboard on democracy, the rule of law and fundamental rights. 81 See http://info.worldbank.org/governance/wgi/#home (accessed 30 May 2017). 82 See. http://www.unrol.org/doc.aspx?d=3061 (accessed 30 May 2017). 83 See http://worldjusticeproject.org/rule-of-law-index/ (accessed 30 May 2017). 84 See http://www.eods.eu/library/VC.Report%20on%20the%20rule%20of%20law%20english.pdf (accessed 30 May 2017). Scrutiny over the Rule of Law in the European Union 205 as the Commissioner for Human Rights of the Council of Europe, the Parliamentary Assembly of the CoE, and other relevant UN human rights bodies and rapporteurs also constitute fundamental sources on the state of play of the triangular relationship between fundamental rights, democracy, and the rule of law in EU Member States. Additionally, case law from the European Court of Human Rights, together with its implementation, provides us with a first-hand assessment of rule of law deficits. Points of potential reference for monitoring purposes by the EU should be highlighted. The current and future role of the FRA should also be carefully considered. The sine qua non of any Scoreboard is its efficiency. In this regard the mechanism suggested should put an emphasis on a contextual understanding of the problem, instead of only quantifying it. A one-size-fits-all approach with rigid numerical indicators might well result – due to the methodological deficits inherent in existing indicator-based methodologies – in substandard outcomes. It should be closely scrutinized what these indicators indicate in reality, and whether that corresponds to the objectives foreseen. The narrow focus and one-dimensional approach of many of the indicators calls into question their consideration with respect to the triangular relationship of EU values, and it is doubtful whether the militant democracy approach is reflected in the normative evaluation. Qualitative and context-specific evaluations are difficult to auto- mate, and therefore there should be a heavy reliance on expert knowledge. This should go hand-in-hand with issues of their objectivity, academic excellence, and the question concerning how the scientific rigour, transparency and accountability of the Scoreboard will be enforced.

2.2. Procedure As a second step, a procedure for a rule of law scrutiny should be considered. Trans- parency and accountability should be enforced, while EU principles such as conferral of powers, subsidiarity and proportionality, as well as inter-institutional arrangements must all be respected. Criminal lawyers and criminologists are well aware of the fact85 that it is not the gravity of the (criminal) sanction, but its inevitability and proximity to the crime committed that has a deterrent effect. The same applies to sanctions against states. Transferring this wisdom to the situation at hand, it is regrettable that the EU has used such a relatively slow mechanism to respond to violations of its own fundamental principles. The often irreversible and severe harms done in the meantime should also be taken into account with regard to the speed of the response. A range of potential solutions have been offered by individual politicians, scholars, authors, and other experts to strengthen the rule of law and its enforcement across the EU – with or without Treaty amendments.86 They include an extension of the scope

85 At least since C. Beccaria wrote his famous work 250 years ago. For an English language version, see C. Beccaria, On crimes and punishments, Bobbs-Merrill, Indianapolis: 1963 86 For a recent overview the EPRS briefing Member States and the rule of law Dealing with a breach of EU values, available at: http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/554167/EPRS_ BRI(2015)554167_EN.pdf (accessed 30 May 2017). 206 Petra Bárd of Article 7 TEU and/or abolishing Article 51 of the Charter of Fundamental Rights, so that all Charter rights become directly applicable and justiciable in the Member States.87 Other suggestions, such as the Heidelberg proposal on a rescue package for EU fundamental rights,88 the numerous scholarly responses to that attempt,89 a “swift and independent monitoring mechanism and an early-warning system”,90 and a systemic infringement action91 are all options worthy of consideration. Some scholars have argued that it is possible to establish a binding rule of law mechanism, which they have called the “Copenhagen mechanism”, within the current Treaty framework, by an inter- institutional agreement with the contribution of independent academic experts in the process of monitoring Member States’ compliance with Article 2 TEU.92

2.3. Sanctions Promotion of the rule of law, as foreseen in the Treaties with respect to current93 and prospective Member States,94 is closely correlated with the possibility to effectively sanction “rule of law” violations – especially if they are systemic, persistent or serious.95 As is apparent from the state of the art and the depreciation of rule of law values, enforcement is the weak side of the existing legal framework for overseeing European values – including the Article 7 mechanism or general infringement procedures according to Articles 258–260 TFEU. A lack of enforcement with effective sanctions is also the weak side of suggestions by EU institutions and academic proposals.96 The highly probable failure of both “naming and shaming” as well at the more positive discursive approach

87 Reding (The EU and…), supra note 1. 88 A. von Bogdandy, M. Kottmann, C. Antpoehler, J. Dickschen, S. Hentrei, M. Smrkolj, A Rescue Package for EU Fundamental Rights – Illustrated with Reference to the Example of Media Freedom, 15 February 2012, available at: http://www.verfassungsblog.de/en/ein-rettungsschirm-fur-europaische-grundrechte- dargestellt-am-beispiel-der-medienfreiheit/#.Upqk2zmRjzJ (accessed 30 May 2017). 89 See the online symposium at http://www.verfassungsblog.de/en (accessed 30 May 2017). 90 Tavares Report, proposing a new mechanism to effectively enforce Article 2TE U (supra note 6). 91 K. L. Scheppele, What Can the European Commission Do When Member States Violate Basic Principles of the European Union? The Case for Systemic Infringement Actions, November 2013, available at: http:// ec.europa.eu/justice/events/assises-justice-2013/files/contributions/45.princetonuniversityscheppelesys- temicinfringementactionbrusselsversion_en.pdf (accessed 30 May 2017). 92 Carrera, Guild & Hernanz (The Triangular Relationship…), supra note 9; Carrera, Guild & Hernanz (Rule of law…), supra note 9. 93 See especially Article 3(1) TEU: “The Union’s aim is to promote peace, its values and the well-being of its peoples”; and Article 13(1) TEU: “The Union shall have an institutional framework which shall aim to promote its values.” 94 See Article 49(1) TEU. 95 It should be clarified whether the different languages of Article 7 TEU referring to a “serious and persistent breach” and the Commission’s proposal addressing instances of “systemic threat to the rule of law”, as well as Barroso’s reference to situations of “serious, systemic risks” to the rule of law are identical, and if not, the extent to which they overlap. (José Manuel Durão Barroso, State of the Union Address 2013, European Parliament, 11 September 2013, Speech/13/684). 96 D. Kochenov, L. Pech, Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality, 11(3) European Constitutional Law Review 512 (2015), p. 528. Scrutiny over the Rule of Law in the European Union 207 should be acknowledged: an illiberal state is unlikely to be persuaded to return to EU values by means of diplomatic attacks, political criticism, discussions, and dialogue. Proposals for “adding bite to the bark”97 thus typically start with quasi-economic sanctions, such as the suspension, withholding or deduction of EU funds.98 Such an approach would also put an end to the paradox of building authoritarian regimes, in denial of EU values, using EU money.

Conclusions

One should not view the enforcement of fundamental EU values, particularly that of the rule of law, as a spill-over effect of market integration, nor accept the attempts to deconstruct the triad of democracy, the rule of law and human rights by disguising it as an alternative national constitutional identity. When a state is departing from the rule of law, it is not a case of clashes over constitutional identities. Deconstruction of the rule of law is typically a project of a governing elite, as opposed to mirroring the wish of the people. Such an attempt can become successful if all means of militant democracy fail in a nation state. The dividing line is thus not between various constitutional identities, as is often contended by illiberal forces, but is still – as in 1941, when Altiero Spinelli authored his Manifesto – between those who conceive the essential purpose and goal of struggle as being the ancient one, the conquest of national political power, and who, albeit involuntarily, play into the hands of reactionary forces, letting the incandescent lava of popular passions set in the old moulds, and thus allowing old absurdities to arise once again; and those who see the main purpose as the creation of a solid international State, who will direct popular forces towards this goal, and who, even if they were to win national power, would use it first and foremost as an instrument for achieving international unity.99

97 W. Sadurski, Adding Bite to the Bark: The Story of Article 7, E.U. Enlargement, and Jörg Haider, 16 Columbia Journal of European Law 385 (2009). 98 K. L. Scheppele, Enforcing the Basic Principles of EU Law through Systemic Infringement Procedures, 2015, available at: http://www.law.nyu.edu/sites/default/files/upload_documents/Kim%20Lane%20Sche ppele%20SIP%20revision%20clean.pdf; K. L. Scheppele, The EU Commission v. Hungary: The Case for the “Systemic Infringement Action”, Assizes de la Justice, European Commission, November 2013, available at: http://ec.europa.eu/justice/events/assises-justice-2013/files/contributions/45.princetonuniversityscheppe- lesystemicinfringementactionbrusselsversion_en.pdf and K. L. Scheppele, Making Infringement Procedures More Effective: A Comment on Commission v Hungary, Case C-288/12, Eutopia, 29 April 2014, available at: http://eutopialaw.com/2014/04/29/making-infringement-procedures-more-effective-a-comment-on- commission-v-hungary-case-c-28812-8-april-2014-grand-chamber/. Building on the above suggestions, see also J. Müller, Why the EU Needs a Democracy and Rule of Law Watchdog, Aspen Review 2015, available at: http://www.aspeninstitute.cz/en/article/2-2015-why-the-eu-needs-a-democracy-and-rule-of-law- watchdog/ (all accessed 30 May 2017). 99 A. Spinelli, For a Free and United Europe – A Draft Manifesto, Ventotene (1941). 208 Petra Bárd

One should therefore bear in mind that attempts to undermine the rule of law typically go against the social consensus of the nation state in question. In addition to intra-state concerns, rule of law backsliding100 harms the nationals of the Member State in question, as well as EU citizens as a whole. It deconstructs the mutual trust on which instruments in the area of freedom, security and justice are based; it entails economic, social and political costs for the EU; and it diminishes EU credibility in external affairs, especially in terms of promoting the rule of law, democracy and human rights in third countries. The current initiatives by EU institutions should therefore be welcomed, for what is at stake is the rule of law, a foundational European value and the sine qua non of European integration. Without its safeguarding and enforcement, the EU as we currently know it would cease to exist.

100 J. Müller, Safeguarding democracy inside the EU. Brussels and the future of the liberal order, Transatlantic Academy Paper Series, 2012-2013, No. 3, p. 9. XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016j 2016 PL ISSN 0554-498X

Joanna Ryszka*

“Social Dumping” and “Letterbox Companies” – Interdependent or Mutually Exclusive Concepts in European Union Law?

Abstract: This article investigates two interesting phenomena which exist within the framework of the European Union (EU) integration process, i.e. “social dumping” and “letterbox companies”. Taking into account recent EU legislative changes and commentaries in the available legal literature, it contends that the EU’s institutions and its Member States are aware of some negative effects that these phenomena may have for attaining one of the EU’s basic aims, that of a “highly competitive social market economy”, as provided in Article 3(3) (ex 2, as amended) of the Treaty on the European Union. The EU should be understood as being not only focused on the implementation of the Internal Market freedoms, but also the protection of social rights. “Social dumping”, and to a certain extent also “letterbox companies”, reduce the level of this protection. Posting of workers is a good example of an EU integration area where “social dumping” and “letterbox companies” occur on a quite large scale and create some real practical problems. If we can clearly understand the concepts underlying these phenomena and their possible relationships, it would be easier to find a solution to reduce their negative effect on the protection of social rights. This article researches these issues and presents possible solutions to problems they give rise to.

Keywords: EU Internal Market freedoms, letterbox companies, minimum wages, posting of workers, social dumping

Introduction

Economic integration within the context of the EU was originally focused on creating a common market with free movement of goods, persons, services and capital. Social issues did not receive much attention in this context. There was however a danger that

* Assistant professor, Chair of International and European Union Law, Faculty of Law and Administra tion, University of Opole, Poland ([email protected]). The research for this paper has been supported financially by the Polish National Science Centre (decision no. 2015/17/B/HS5/00419). 210 Joanna Ryszka

“social dumping” could occur, whereby Member States “with inferior employment conditions gained an unfair advantage in the common market.” “Social dumping” is regarded as an abusive practice within the framework of today’s EU Internal Market, by which some countries, or companies in some countries, in order to gain a competitive advantage, undercut or evade existing labour and social standards. Sometimes such abusive practices are initiated by “letterbox companies”, which do not carry out a real economic activity in a Member State of registration, and therefore evade its regulations on labour law, tax law or social security systems. Such undertakings clearly use the difference in these regulations as a competitive element, which at first sight may seem to be normal in a market economy. However, if such activities are not controlled, this can lead to deterioration in the level of protection of social rights and to so-called “social dumping”. The question arises: who should be responsible for carrying out such controls – the “host” or “home” Member State, or maybe both of them? It can be argued that effective control will certainly require action on the part of both of the above-mentioned states. One can assume – or at least try to suggest – that such an effective control would decrease the occurrence of “letterbox companies” in the Internal Market, and that as a result labour and social standards would not be evaded and “social dumping” would cease to exist. But perhaps this argument should be put in a different way: If differences in social standards between Member States did exist, “social dumping” would also not occur. So there would be no reason to set up “letterbox companies” in order to evade labour and social standards. Does this mean that “social dumping” and “letterbox companies” are two interdependent and interrelated concepts in EU law? “Social dumping” can have two aspects. One is connected with the so-called “race to the bottom” and regulatory competition between Member States, and the second concerns the competition between employees taking place within each Member State’s regulatory framework. Member States may, however, choose not to relax their labour standards, thus avoiding any such race to the bottom. Significant differences in labour and social standards can, in effect, lead to a situation whereby host-state companies will not depend on local workers, but rather on posted workers, which may put pressure on the wage scale and working conditions in this state. Thus one should begin by trying to answer the question whether the causes of “social dumping” really have their roots in a weak national enforcement of EU labour law, or with weak control over the activities of “letterbox companies”.

R. Hyman, Trade Unions, Lisbon and Europe 2020: From Dream to Nightmare, 28(1) The International Journal of Comparative Labour Law and Industrial Relations 5 (2012), p. 20. With respect to the current scale of those two phenomena, compare for example: Commission Staff Document: Impact Assessment, Revision of the legislative framework concerning the posting of workers in the context of the provision of services, SWD (2012)63; and Report from the Commission to the European Parliament and the Council on the State of the Union Road Transport Market, COM(2014) 222 final. H. Verschueren, The European Internal Market and the Competition Between Workers, 6(2) European Labour Law Journal 128 (2015), p. 134. ETUC, Free movement, yes! Social dumping, no! Workers in Europe are suffering from social dumping, 2015, available at: http://www.etuc.org/sites/www.etuc.org/files/publication/files/flyer_social_dump- ing_en_06.pdf (accessed 30 May 2017). “Social Dumping” and “Letterbox Companies”... 211

In this article three issues will be discussed. Firstly, the problem with definitions of “social dumping” and “letterbox companies” under EU law will be set out and possible sources of confusion will be analyzed. Secondly, one specific area of theE U integration has been chosen to illustrate the kinds of practical problems those phenomena create. Attention will be focused on the posting of workers, where “social dumping” and “letterbox companies” occur on quite a large scale and bring about some real practical problems. Thirdly, the most important EU legal activities in the field are set out, the main aim of which is to prevent and counter “social dumping” and “letterbox companies”. A thorough knowledge of these issues, both from the theoretical and practical points of view, allows for identification of the possible linkages between them. Finally, in the conclusions some considerations are presented in order to determine whether we can treat these phenomena as interdependent and interrelated, or as mutually exclusive, and whether this is relevant to the process of is prevention, i.e. does combating one of them help fight against the other?

1. What a “letterbox company” means for the EU Internal Market participants

In order to determine what should be understood by the term “letterbox company” it is necessary to analyze the notion of “establishment” in the EU Internal Market, which is important for answering the question whether “letterbox companies” are covered by the freedom of establishment provisions. This section will demonstrate that if a company wants to be protected by the provisions of the freedom of establishment clause it must provide a real and genuine activity in one of the EU Member States. Hence it is necessary to define a “letterbox company” in order to determine if its activities are covered by EU law on the Internal Market.

1.1. The concept of a “letterbox company” – is there a legal definition? At the outset it must be stressed that there is no legal definitionper se of a “letterbox company”. In the legal literature we can find that “letterbox company” is a company which carries out very little or no activity in the place where it is registered, and is often associated with activities that are, if not criminal, then at least dubious. Recital 37 of the preamble of the European Parliament and the Council Directive 2006/123/EC on services in the Internal Market states only that “a mere letterbox company does not constitute an establishment.” From the EU institutional perspective, the European Commission understands “letterbox companies” as “companies established in a Mem-

K.E. Sørensen, The fight against letterbox companies in the Internal Market, 52(1) Common Market Law Review 85 (2015), p. 87; P. Paschalidis, Freedom of Establishment and Private International Law for Corporations, Oxford University Press, Oxford: 2011, pp. 2-41. [2006] OJ L 376. 212 Joanna Ryszka ber State for tax purposes, where they do not carry out their administrative functions or commercial activities (…).” As we can see, the main and common element in these definitions is the lack of “actual pursuit of an economic activity” in the state of incorporation. The Court of Justice of the European Union (CJEU) seems to understand “brass-plate companies” as companies which lack any “real connection with the State of formation”. In the context of cases on taxes the CJEU refers to “wholly artificial arrangements” aimed at circumventing the application of the legislation of the Member State concerned. The “wholly artificial arrangement” means companies with no “real connection with the state of formation”, that is, a company “not carrying out any business in the territory of the Member State in which its registered office is situated”,10 characterized by a “fictitious presence”.11 Taking into account the above-mentioned considerations a “letterbox company” is a company formed in accordance with the law of the Member State where it has its registered office, central administration, or principal place of business, but without carrying out any economic activity in the place where it is registered. So it seems that its activity is not forbidden by EU law unless its activities take the form of abusive practices. It should therefore be underlined that although not forbidden, “letterbox company” activities are generally doubtful as to their morality and compliance with the spirit of the relevant legal rules, for example tax or social regulations.

1.2. The notion of “establishment” inEU law Freedom of establishment is provided for in Article 49 of the Treaty on the Func- tioning of the European Union (TFEU) (ex 43, as amended), but there is no legal definition of the concept of “establishment”. Therefore, we have to use the CJEU case law to understand the notion. The CJEU has emphasized that the concept of establishment should involve “the actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period.”12 The CJEU further stated that the concept of establishment should be understood as allowing EU natural and legal persons to participate “on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration within the Community (…).”13 As we can see,

Report from the Commission, supra note 2, point 16. Case C-167/01 Inspire Art [2003] ECR I-10155, points 95-96, 102 and 137-139. Case C-196/04 Cadbury Schweppes [2006] ECR I-7995, point 51; Case C-311/08 Societe de Gestion Industrielle [2010] ECR I-00487, points 65-66. 10 Case C-341/04 Eurofood [2006] ECR I-3813, point 35. 11 Case C-73/06 Planzer Luxembourg [2007] ECR I-5655, points 62-63. 12 Case C-221/89 Factortame II [1991] ECR I-3105, point 20. However, it has been stressed that the situation of letterbox companies is different than that resulting from the Factortame case, because it refers to the pursuit of an economic activity in another member state for an indefinite period (presumably, therefore, the host state). Letterbox companies concern rather companies that do conduct an economic activity in another Member State, and the problem is they conduct no activity in their home state. 13 Case C-55/94 Gebhard [1995] ECR I-4165, point 25. “Social Dumping” and “Letterbox Companies”... 213 the concept of establishment is generally characterized by the following features: cross border, permanence, and actual pursuit of an economic activity. The CJEU argued further that actual establishment should be understood as meaning that the company should have not only its own premises, but also some level of staff and equipment, as well as commercial activity connected with the establishment.14 It is worth noting that in the road transport sector ‘an effective and stable establishment’ also means premises in which companies keep core business documents, as well as premises, where they have at their disposal vehicles registered in conformity with the legislation of that Member State.15 To find out which companies are covered by Article 49T FEU (ex 43, as amended) it is necessary to refer also to Article 54 TFEU (ex 48, as amended), which states that in order to benefit from the freedom of establishment, “companies or firms” have to be formed in accordance with the law of a Member State and have their registered office, central administration, or principal place of business within the Union. Article 49 TFEU (ex 43, as amended) contemplates two forms of establishment. The first one, called “primary establishment” is understand as the right to set up and manage an undertaking in another Member State. The second one, called “secondary establishment”, means the right to set up agencies, branches or subsidiaries by nationals of one Member State in the territory of another Member State.16 Some practical problems arise when a company wishing to open a branch in another Member State is not commercially active in the State in which it was formed, but instead plans to be active in the Member State in which its branch is to be located. The main question in such cases is whether such a company is still covered by the Treaty provisions on the freedom of establishment. Another issue is connected with the question of a host Member State’s powers to register such companies. We can mention here such famous cases as C-212/97 Centros or C-167/01 Inspire Art.17 In Centros, the CJEU had to answer the question whether a refusal to register a branch of a private limited company registered in the UK, where it did not trade (its intention was to trade in Denmark), was an obstacle to the exercise of the freedom of establishment. According to Danish authorities the sole purpose of the company’s formation was to circumvent the application of Danish national law governing the formation of private limited companies, and therefore it constituted abuse of the freedom of establishment. The CJEU held that it is immaterial that the company was formed in one Member State only for the purpose of establishing itself in a second Member State where its business is to be conducted. The fact that the company was formed in a particular Member State for the sole purpose of enjoying the benefit of more favourable legislation does not constitute abuse, even if that company conducts

14 Case C-196/04 Cadbury Schweppes [2006] ECR 7995, point 67. 15 Article 5 of Regulation 1071/2009 of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator, [2009] OJ L 300. 16 C. Barnard, The Substantive Law of the EU. The Four Freedoms, Oxford University Press, New York: 2013, p. 307. 17 Respectively: [1999] ECR I-1459; [2003] ECR I-10155. 214 Joanna Ryszka its activities entirely or mainly in the second State.18 The CJEU stated that the host Member State is not allowed to deny a registration, but is able to exercise supervision over companies that are providing economic activities on their territory.19 The host Member State is not therefore allowed to refuse registration of a company’s branch just because this company does not conduct any business in another Member State in which it has its registered office. In Inspire Art, the Dutch authorities did not refuse to register a company’s branch that was formed in the UK, but they did however require this branch to record its description in the Dutch commercial register as a “formally foreign company”. Dutch law imposed further conditions on such “formally foreign companies” such as, for example, the minimum share capital and directors’ liability.20 This was treated by the CJEU as an unjustified barrier to the freedom of establishment.21 The issue of setting up a secondary establishment has caused same practical problems connected with the genuine activities of companies in the state of incorporation. If those companies are acting with a view to circumvent legal, social, or fiscal regulations and the existence of abuse or fraudulent conduct can be proved, such companies are denied the right to benefit from the provisions on freedom of establishment.22 Such a conduct can be dangerous not only for the functioning of the Internal Market as such, but also for its social dimension. When companies’ activities concern the circumvention of social conditions, this can lead to deterioration in the protection of worker’s rights. It can therefore become one of the premises of, or reasons for, the occurrence of “social dumping” in the Internal Marker, which will be discussed further in this article. This article also indicates specific interrelations between “social dumping” and “letterbox companies”, which should prove that they are not mutually exclusive concepts. The question of the scope of protection of Article 49 TFEU (ex 43, as amended) has been also discussed by the CJEU in case C-210/06 Cartesio, and in the more recent judgment in case C‑378/10 VALE.23 They are, however, quite different in nature thanCentros and Inspire Art, because they did not concern secondary establishment but a cross-border conversion.24 The CJEU stated that in order to be covered and protected by the freedom of es-

18 Case C-212/97 Centros, points 17-18. 19 Ibidem, point 39. 20 Case C-167/01 Inspire Art, points 22-33. 21 Ibidem, points 104-105 and 135-140. 22 Ibidem, point 134. 23 Respectively: [2008] ECR I-9641, published in the electronic ECR. 24 Practical problems connected with the transfer of a company’s head office to another Member State can also be seen in such CJEU cases as: 81/87 Daily Mail [1998] ECR I-5483; C-208/00 Überseering [2002] ECR I-9919 or C-371/10 National Grid Indus [2011] ECR I-12273. See also: P. Craig, G. De Búrca, EU Law. Text, Cases and Materials, Oxford University Press, New York: 2008, p. 807; S. Weatherill, Cases & Materials on EU Law, Oxford University Press, New York: 2012, p. 394; E. Wymeersch, The Transfer of the Company’s Seat in European Company Law, 40(3) Common Market Law Review 661 (2003); P. Dyrberg, Full free movement of companies in the European Community at last?, 28 European Law Review 528 (2003); O. Mörsdorf, The Legal Mobility of Companies within the European Union through Cross Border Conversion, 49(2) Common Market Law Review 629 (2012); T. Biermeyer, Shaping the Space of Cross-border Conversions in the EU, 50(2) Common Market Law Review 571 (2013). “Social Dumping” and “Letterbox Companies”... 215 tablishment, the re-incorporation of a company must be connected with the intention of having an establishment in the host Member State.25 As we will see, there will be no establishment and therefore no protection under Article 49 TFEU (ex 43, as amended) if a company is formed without any activities in the relevant Member State.26

2. What “social dumping” means for the EU Internal Market participants

In order to find out whether “letterbox companies” and “social dumping” are interrelated or mutually exclusive, we need to also look at the concept of the latter. This section discusses the different definitions of “social dumping” that can be found in the legal literature and in EU institutions’ legal acts, in order to find out if they are similar or if they differ from each other. Separate attention is devoted to the overall pattern of EU integration, e.g. the principle of mutual recognition and its potential impact on “social dumping”. The question is whether the application of mutual recognition in the area of social or labour law is possible, and if it could lead to “social dumping”. This section will also consider whether the EU enlargement process may be associated with some concerns connected with the occurrence of “social dumping”. Particular attention will be devoted to specific factors that can influence the occurrence of this negative phenomenon.

2.1. The concept of “social dumping” It must be stated at the outset that there is no legal definition of “social dumping” in EU law. TheE uropean Commission understands “social dumping” as “the gaining of unfair competitive advantage within the Community through unacceptably low social standards.”27 The European Parliament understands “social dumping” as “a situation where foreign service providers can charge less than local service providers because their labour standards are lower.”28 If we look for a definition in the legal literature, the one from M. Bernaciak is worth quoting. She defines “social dumping” as a “practice undertaken by self-interested market participants of undermining or evading existing social regulations with the aim of gaining a competitive advantage.”29 She also sees it as “a strategy geared towards the lowering of wage or social standards for the sake of enhanced competitiveness, prompted by companies and indirectly involving their employees and/or home or host

25 Case C-210/06 Cartesio, point 109; case C‑378/10 VALE, points 34-35. 26 Sørensen, supra note 5, p. 93. 27 The European Commission Green Paper on European Social Policy, COM(93) 551 final, point 6. 28 Posting of workers – part of the expected Labour Mobility Package, European Parliamentary Research Service, September 2015, point 9, available at: http://www.europarl.europa.eu/RegData/etudes/ BRIE/2015/558784/EPRS_BRI(2015)558784_EN.pdf (accessed 30 May 2017). 29 M. Bernaciak, Social dumping and the EU integration process, ETUI Working Paper, 2014/6, p. 5. 216 Joanna Ryszka country governments, and has negative implications in the social sphere.”30 It must be pointed out that according to this meaning the notion of “social dumping” relates also to the issue known as the “race to the bottom”.31 It may occur when in an area of free movement, one or more Member States unilaterally lower its/their social standards in an attempt to attract business from other states. This situation should be thus seen as a form of state policy, and not as a strategy of a single company.32 According to J. Cremers “social dumping is an ideal way to save money, as it allows lowering of social security costs and avoidance of taxes. It means no employee costs for the original employer, no health and safety services, no wage indexation (…) and no trade union involvement.”33 This of course will only be the case if those standards are abandoned altogether, rather than just lowered. T. Krings points out that “especially in times of economic crisis, it may be tempting for firms to resort to dumping practices in order to save on costs. Such strategy would, however, be quite (…) detrimental to (…) long-term economic development.”34 It has to be stressed that such a strategy is very likely to be detrimental to workers’ social rights as well. “Social dumping” can lead, for example, to growing unemployment, company bankruptcies, lowering of wages and working conditions in the host country, as well as the erosion of social standards in both the home and host countries.35 As we can see, “social dumping” can be understand as a form of state policy, but this is not the only possibility. It can also take the form of a strategy of a single company to take advantage of differentials in the social, labour or tax fields just to become more competitive. We have to bear in mind, however, that competitiveness is also one of the principles of the Internal Market, and it is quite natural “that rational profit-maximiz- ing firms search for efficiency and lower costs at all times.”36 It is worth noting that “social dumping” should also be understand as practices/actions which are undermining the level of protection of the host Member States’ workers, even if they are not

30 M. Bernaciak, Social dumping: political catchphrase or threat to labour standards?, ETUI Working Paper, 2012/6, p. 6. 31 C. Barnard, Social Dumping Revisited: Some Lessons from Delaware (Lecture at the ECSA’s Sixth Biennial International Conference, 2-5 June 1999, Pittsburgh, USA), available at: http:/aei.pitt.edu/id/ eprint/2222 (accessed 30 May 2017). 32 C. Barnard, Regulating Competitive Federalism in the European Union? The case of EU Social Policy, in: M. Shaw (ed.), Social Law and Policy in an Evolving European Union, Hard Publishing, Oxford-Portland: 2000, p. 57; B. Bercusson, The Lisbon Treaty and Social Europe, ERA Forum, 2009/10, p. 103; T. Krings, Varieties of social dumping in an open labour market: The Irish experience of large-scale immigration and the regulation of employment standards, ETUI Policy Brief. European Economic, Employment and Social Policy, 2014/6, p. 1; K. Maslauskaitė, Social competition in the EU. Myths and realities, Studies & Reports, 2013/6, p. 20. 33 J. Cremers, Letter-box companies and abuse of the posting rules: how the primacy of economic freedoms and weak enforcement give rise to social dumping, ETUI Policy Brief. European Economic, Employment and Social Policy, 2014/5, p. 3. 34 Krings, supra note 32, p. 4. 35 Bernaciak, supra note 30, pp. 22 and 24. 36 Maslauskaitė, supra note 32, p. 325. “Social Dumping” and “Letterbox Companies”... 217 connected with unfair (economic) competition.37 The question therefore concerns the extent to which such competition should be allowed to persist, and how much of a minimum “floor” should be in place to protect social rights. “Social dumping” seems to occur when companies’ advantages result from such adverse practices as, for example, circumventing labour taxation, providing poorer working conditions, or paying lower wages.38 Taking into account that such adverse practices could also be used by “letterbox companies” we should not treat such companies and “social dumping” as mutually exclusive. We can rather observe here a specific interrelationship.

2.2. “Social dumping” and application of the principle of mutual recognition The main idea underlying the principle of mutual recognition is that “one can pursue market integration, while respecting ‘diversity’ amongst the participating countries.”39 This was set out by the CJEU, within the framework of the free movement of goods, in case C-120/78 Cassis de Dijon.40 More recently, this principle has been also established in the field of free movement of services.41 The case law of the CJEU indicates that mutual recognition reduces the scope of application of the host state legislation and strengthens the importance of home state legislation.42 One can get the an impression that applying mutual recognition in the area of social law can lead to “social dumping”. If a posted worker has his or her social rights protected in his or her home state, the host state’s legislation must be applied only to the level of the minimum working conditions of the home state, as provided in Article 3(1) of the European Parliament and Council Directive 96/71/EC concerning the posting of workers in the context of the provision of services.43

37 T. Van Peijpe, Collective Labour Law after Viking, Laval, Rüffert, and Commission v. Luxembourg, 25(2) The International Journal of Comparative Labour Law and Industrial Relations 81 (2009), p. 103. 38 Maslauskaitė, supra note 32, p. 46. 39 J. Pelkmans, Mutual Recognition: economic and regulatory logic in goods and services, Bruges European Economics Research Papers, 2012/24, p. 2; Ch. Janssens, The Principle of Mutual Recognition in EU Law, Oxford University Press, New York: 2013, p. 33. 40 Case C-120/78 Cassis de Dijon [1979] ECR 649, point 14. 41 For example: Case C-355/98 Commission v. Belgium [2000] ECR I-1221, point 37; or case C- 288/89 Mediawet [1991] ECR I-4007, point 13. See also: M. Horspool, M. Humphreys, European Union Law, Oxford University Press, New York: 2014, p. 277. 42 Case C-445/03 Commission v. Luxembourg [2004] ECR I-10191, point 21; case C-244/04, Commission v. Germany [2006] ECR I-00885, point 31; and case C-168/04 Commission v. Austria [2006] ECR I-09041, point 37. 43 [1997] OJ 1997 L 18. Those terms and conditions entail: a) maximum work periods and minimum rest periods; b) minimum paid annual holidays; c) the minimum rates of pay, including overtime rates; (this point does not apply to supplementary occupational retirement pension schemes); d) the conditions of hiring-out of workers, in particular the supply of workers by undertakings providing temporary employment; e) health, safety and hygiene at work; f) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children, and of young people; g) equality of treatment between men and women and other provisions on non-discrimination. A quite strict interpretation of its application has been provided by the CJEU, for example, in case C-346/06, Rüffert [2008] ECR I-1989, point 33, and in case C-319/06 European Commission v. Luxemburg [2008] ECR I-4323, points 31-32. 218 Joanna Ryszka

If however there are no such regulations and the home state social standards are poorer than those of the host state, this could lead to a situation whereby those standards would be pushed to the lowest common denominator. The protection of workers from the host country would therefore be weakened. Such lower social standards could encourage the activities of such “letterbox companies”, which would be interested in reducing labour costs by hiring workers whose level of social protection is weak. These workers would thus become victims of such “letterbox companies”, because the protection of their labour and social rights could be reduced. Its activities could therefore further “social dumping:, that is, the practice of undermining or evading existing social regulations with the aim of gaining a competitive advantage. This situation indicates that ‘social dumping’ and ‘letterbox companies’ are not mutually exclusive and can be interrelated to each other. We may here recall the thesis of the CJEU’s judgment in C-49/98 Finalarte, that the application of the host state regulations will be permitted when it provides an additional protection conferring a real benefit, which significantly adds to workers’ social protection.44 The question is, however, what the scope of this ‘additional protection’ should be? Should the host Member State be able to apply all of its labour regulations if it would “significantly add to workers’ social protection”? This would probably prevent “social dumping”, because the standards of social protection of the host and home country will be at a comparable level. On the other hand, one of the most important differences between “migrant worker” and “posted worker” could be affected, that is the scope of labour law regulation applied to them. Migrant workers are subject to the labour law regulations of the host Member State in the same way as its citizens. This is because Article 45T FEU non-discrimination principle is applied to them. Posted workers are mainly subject to the home-country labour law regulations, apart from host state’s minimum working conditions referred to in Article 3(1) of Di- rective 96/71/EC. So not all labour regulations are to be applied, even if this would be more beneficial for the posted workers.45 The situation would seem to be different if the above mentioned provision were modified according to the principle “equal pay for equal work in the same place”, as proposed by the European Commission.46 However it also seems that even if this principle were applied, there would still be a difference in the scope of application of the home and host states’ national provisions with respect to “migrant workers” and “posted workers”. According to Article 12(1) of the European Parliament and Council Regulation No 883/2004 on the coordination of social security

44 Joined cases C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte and Others, points 45 and 53. For a more recent case, see C-396/13 Sähköalojenammattiliitto, point 45. 45 Article 3(1) of the Directive 96/71/EC has been interpreted by the CJEU as a ceiling rather than the floor in, for example, the Rüffert case (“that provision cannot be interpreted as allowing the host Member State to make the provision of services in its territory conditional on the observance of terms and conditions of employment which go beyond the mandatory rules for minimum protection”, Rec. 33). Cf also Van Peijpe, supra note 37, p. 99. 46 Proposal for a directive of the European Parliament and of the Council amending Directive 96/71/ EC of TheE uropean Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, COM(2016) 128 final, submitted on 8 March 2016. “Social Dumping” and “Letterbox Companies”... 219 systems,47 posted workers continue to be subject to the legislation of the home Member State, provided that the anticipated duration of such work does not exceed twenty-four months and that he or she is not sent to replace another person. Taking into account the above-mentioned considerations, application of the mutual recognition principle in the framework of social and labour law can lead to “social dumping”, unless we are talking about posted workers and minimum working conditions under Article 3(1) of Directive 96/71/EC. This however would not be the case if the host Member State will be able to apply its social and labour law if it “significantly adds to workers’ social protection”. As we can see, different approaches should be taken into account in any discussion of “social dumping” and “letterbox companies”. Not only is it important that the above-mentioned companies are “searching for competitiveness”, but so too is the scope of national power to pursue socio-economic goals in the shaping of labour relationships.

3. Does the EU enlargement process have an influence on the occurrence of “social dumping” and “letterbox companies”?

It should be emphasized that the EU enlargement process may be associated with some concerns connected with instances of “social dumping”. This is mainly related to the fact that candidate countries are usually characterized by a lower level of economic development than the Member States. This can lead to quite large differences between the national labour laws and social security systems of the respective states. This was also the case in the extensive EU enlargement involving the accession of Central and East- ern European Countries (CEECs). The Introduction of transitional periods as a result of this enlargement, restricting the access of the candidate countries’ workforce to the labour markets of the then-fifteen Member States, can be treated as one of the manifestations of a fear of “social dumping” in the EU. Those transitional periods constituted a kind of temptation to circumvent these regulations through the use of the posting of workers in the framework of provision of services.48 In order to avoid fears of “social dumping”, the minimum working conditions had to be applied to those workers, as provided in Article 3(1) of the Directive 96/71/EC. Natural differences in the level of economic development between “new” and “old” Member States translate generally into differences in the amount of remuneration. A further levelling of salaries in Member States should, however, be the result of the

47 [2004] OJ 2004 L 166. 48 It is worth mentioning that following the enlargement of the EU in 2004, the institution of posted workers has gained in importance, which has aroused much concern in terms of wage competition among ‘the then fifteen’. J.E. Dølvik, J. Visser, Free movement, equal treatment and worker’s rights: can the European Union solve its trilemma of fundamental principles?, 40(6) Industrial Relations Journal 491 (2009), pp. 492 and 497. 220 Joanna Ryszka

EU’s gradual economic development. Scientific research indicates that the CEECs have achieved a great deal of progress in terms of GDP growth and the “Europe- anisation of national labour laws”. At the same time, they have lost their competitive advantage as relocation choices for firms in search of lower labour costs. Some of the new Member States have not only lost their status as a cheap labour destination, but have also become more expensive than, for example, the UK, Ireland, or Luxembourg. This is mainly because of the “low amounts of taxes and social security contributions withheld”.49 The 2004 enlargement process can provide a clearcut date upon which to consider whether the level of wages influences the actual organisation of business in the EU. The point is that lower wage levels may be an indicator of “social dumping” and thus in some way encourage the setting up of “letterbox companies”. To determine whether this is the case one must take into account statistics on how easy it is to start a business in such countries. The question arises: Is it possible that there could be a dumping of labour standards without any consequent impact on company law standards? This can be ascertained by checking the procedure for starting a business in host Member States with low wages and comparing it with other Member States. In the first place we should analyze the level of minimum national wages in the EU.50 EU Member States can be divided into three groups based on the level of their minimum wage (Denmark, Italy, Cyprus, Austria, Finland and Sweden are the excepted, as they do not establish a minimum wage). The first group includes countries whose minimum wages were lower than EUR 500 a month (Bulgaria, Romania, Lithuania, Hungary, the Czech Republic, Latvia, Slovakia, Croatia, Estonia and Poland). The second group is comprised of five EU Member States (Portugal, Greece, Malta, Spain and Slovenia) with an intermediate level of minimum wages, defined as between EUR 500 to EUR 1,000 per month. The third group, which includes seven EU Member States (France, Germany, Belgium, the Netherlands, the United Kingdom, Ireland and Luxembourg), have a national minimum wage of EUR 1,000 or more per month.51 We can compare this data with that available from Word Bank Groups’ ranking on Starting Business 2016, which covers analysis of the procedures, time, cost and paid-in minimum capital when opening a business in 185 countries of the world.52 The higher the rank, the easier it is to set up company in the country.

49 Maslauskaitė, supra note 32, pp. 28 and 53. 50 According to Article 3(1g) of the Directive 96/71/EC “(…) the concept of minimum rates of pay (…) is defined by the national law and/or practice of the Member State to whose territory the worker is posted’, ‘but only in so far as that definition, as it results from the relevant national law or collective agreements or from the interpretation thereof by the national courts, does not have the effect of impeding the freedom to provide services between Member States.” See also C-396/13 Sähköalojenammattiliittory, point 34. 51 Available at: http://www.ec.europa.eu/eurostat/statisticsexplained/index.php/Minimum_wage_sta- tistic (accessed 30 May 2017). 52 Available at: http://www.doingbusiness.org/rankings (accessed 10 May 2016). “Social Dumping” and “Letterbox Companies”... 221

Table 1. Level of wages and the actual organisation of business in the EU53

The level of minimum wages From EUR 500 Lower than Ease in setting Lack of to less than EUR 1.000 or EUR 500 up a company minimum wage EUR 1.000 more per month a month a month Lithuania 8 Portugal 13 Estonia 15 Sweden 16 The United 17 Kingdom“ Slovenia 18 Belgium 20 Ireland 25 Latvia 27 The Netherlands 28 Denmark 29 France 32 Finland 33 Romania 45 Italy 50 Bulgaria 52 Greece 54 Hungary 55 Cyprus 64 Slovakia 68 Luxembourg 80 Spain 82 Croatia 83 Poland 85 Czech 92 Austria 106 Germany 107 Malta 132

* On 23 June 2016 a referendum was held, to decide whether the UK should leave or remain in the European Union. Leave won by 52% to 48%. The referendum turnout was 71.8%, with more than 30 million people voting. According to Article 50 TFEU the EU and the Great Britain have two years to conclude an agreement for its withdrawal, taking account of the framework for its future relationship with the Union.

53 Own study based on data available on the websites listed supra in notes 51 and 52. 222 Joanna Ryszka

As we can see, only two Member States from the first group (Lithuania andE stonia) are higher in rank than those in which the national minimum wage was EUR 1,000 or more per month. This can suggest that lower wages do not influence changes in the law in order to make setting up a company easier, and do not influence the actual organisation of business in host Member States with low wages. It can also suggest that while the level of wages is an important indicator of “social dumping”, it does not however any consequent impact on company law structures. This should, however, not be understood to mean that the level of wages is not necessarily relevant for setting up “letterbox companies”. Instead, it should rather indicate that EU Member States with low wages do not have legislation which would facilitate the establishment of a business on their territory. We can therefore observe that the enlargement could indeed create some fears of “social dumping”, which is generally caused by differences between the level of economic development of Member States. This seems, however, be a problem only until such time as the new Member States achieve progress in terms of GDP growth and the Europeanisation of national labour laws. The studies mentioned above indicate that the level of wages as such does not influence the actual organisation of business in Member States. This means that not only is the level of wages important for an entrepreneur in deciding to open a company in another Member State, but also the complexity of procedures in opening a company or the taxes that should be paid. Lower wages seem not to influence changes in law in order to make setting up a company easier, nor for example, to encourage the creation of “letterbox companies” just for hiring workers and posting them to another Member State. It should also be underlined that in 2014 there were 1.92 million posted workers in the EU, and the number of these workers increased by 44.4% between 2010 and 2014. Among the Member States sending the highest number of posted workers we can mention Poland, Germany and France. From the other side, the Member States receiving the highest total number of posted workers are Germany, France, and Belgium.54 Hence the level of wages does not seem to be so important in the intensity of the posting of workers. Two of the three Member States with the highest total number of posted workers, as mentioned above, have a national minimum wage of EUR 1,000 or more per month.

4. “Letterbox companies”, “social dumping” and the posting of workers

Both “social dumping” and “letterbox companies” are particularly encountered, in the area of EU integration, with respect to the posting of workers. It should be noted that those two phenomena in this area of integration are in some situations interrelated, as will be shown in this section. Based on these considerations, some possible solutions

54 European Commission, Posted workers in the EU, press release IP/16/466. “Social Dumping” and “Letterbox Companies”... 223 to prevent and combat the occurrence of “letterbox companies” and “social dumping” are presented. It will be stressed that the legal activities of EU institutions in this area often refer to both of these issues simultaneously, which can lead to an assumption that they are interrelated.

4.1. Some examples of potential interrelationships between “social dumping” and “letterbox companies” To understand the problem of “letterbox companies” and “social dumping” we should look at the examples presented by J. Cremers, one of which is described below. The reason why this example has been chosen is to show how difficult the legal situation of an employee working for such a “letterbox company” can be. The example concerns “a truck driver who was fired by his employer (…); a week later he received a confirmation from the Cypriot intermediary that he was no longer needed. The confirmation letter was typed on stationery of another ‘letterbox company’ based in Luxembourg, posted with a Dutch stamp, using a Belgian standard form to notify him of his dismissal.”55 One can see that for such an employee it is not easy to derive his employment rights based on the lex loci laboris principle, unless his contract specified the applicable law of the agreement. The posting of workers within a framework of free provision of services is an exception to this principle, because such posted workers are mainly subject to the legal regime of the home-country. As has been mentioned above, the host-country’s labour regulations apply to them only with respect to the minimum terms and conditions of employment, as provided in Article 3(1) of Directive 96/71/EC. The problem occurs if the employer – a service provider – has no real activities in a Member State it claims to be established in. It seems that in this situation such an employer should apply in full the legislation of the Member State where the workers have been posted.56 This is because such a host Member States is in reality the place where a company’s genuine activities are provided. Owing to the weak oversight of compliance with the minimum standards of labour law applicable to posted workers, many companies exploited the differences in wage levels between Member States.57 We can imagine that as a kind of response to these “social dumping practices”, companies from countries with high labour costs established a company in a country with low labour costs for the express purpose of employing and delegating employees to the parent company. This can be seen in the following example: “Registered and operating in the German construction sphere, company X SERVICE GmbH executes in Germany a contract to build a school. As part of the

55 Cremers, supra note, 33, p. 2 and 4. 56 Sørensen, supra note 5, p. 97. 57 The need to strengthen the monitoring of compliance with Directive 96/71/EC, and measures in the event of failure to comply, has been pointed out by the European Commission in its Communication - Guidance on the posting of workers in the framework of the provision of services, COM(2006) 159 final, 10-11; and in its Recommendation of 31 March 2008 on enhanced administrative cooperation in the context of the posting of workers in the framework of the provision of services, [2008] OJ C 85. Currently the issue is regulated by the directive 2014/67, discussed in point 3.2 of this article. 224 Joanna Ryszka contract, the services of a subcontractor X SERVICE POLAND SP. z o.o. are engaged, to whom it commissions various construction work. The register of the companies shows that the owner and management board member of both companies is one and the same person.”58 As we can see here, there is a real possibility of both such adverse circumstances, i.e. “letterbox companies” and “social dumping”, in the posting of workers simultaneously in a sector. Lower social standards in one Member State can encourage setting up “letterbox companies” for the sole purpose of posting workers and therefore gaining competitive advantages in another Member State. The level of protection of workers’ social rights is presumably reduced and “social dumping” becomes a reality.

4.2. Possible solutions to prevent and combat cases of “letterbox companies” and “social dumping” As mentioned above, by providing minimum working conditions applicable to posted workers, Directive 96/71/EC was aimed, among other things, at preventing “social dumping”. According to the European Commission the minimum standards should be treated as “a bulwark against using low social standards as an instrument of unfair economic competition and protection against reducing social standards to gain competitiveness.”59 It has to be underlined that the minimum wage in the host Member State is one of those conditions that should take into account in applying the principle of proportionality, which requires that some conditions to be met. The ECJ U lists Among those conditions the duration of the provision of services, their predictability, and whether the employees have actually been sent to work in the host Member State, or continue to be attached to the operational base of their employer in the Member State in which it is established.60 For example, there have been some doubts whether the German Minimum Wage Law (GMWL), which entered into force on 1 January 2015, meets those conditions. It established a minimum rate of 8.5 euro per hour for all employees in Germany. This provision in particular affected other Member States’ undertakings providing transport services. On 19 May 2015 the European Commis- sion decided to launch an infringement procedure against Germany, concerning the application of the GMWL to the transport sector.61 Whilst fully supporting the intro-

58 S. Schwarz, Zapobieganie obchodzeniu przepisów o delegowaniu przez spółki-skrzynki pocztowe w projekcie dyrektywy wdrożeniowej w zakresie delegowania (Preventing circumvention of the rules on posting by letterbox companies in the draft of the implementation of the directive on the posting of workers), available at: http://www.inicjatywa.eu/wp-content/uploads/2013/06/Opinia-na-temat-definicji- sp%C3%B3%C5%82ek-skrzynek-pocztowych-Inicjatywa-Mobilno%C5%9Bci-Pracy2.pdf (accessed 30 May 2017); The posting of workers in the framework of the provision of services, Opinion of the Committee of the Regions, point 8 (2013/C 17/12). 59 The European Commission White Paper on European Social Policy – A Way Forward for the Union, point 19, COM(94) 333 final. 60 Case C-165/98 Mazzeloni [2001] ECR I-02189, p. 38. 61 European Commission, Press release: Transport: Commission launches infringement case on the application of the German Minimum Wage law to the transport sector, available at” http://www.europa.eu/rapid/ press-release_IP-15-5003_en.htm (accessed 30 May 2017). “Social Dumping” and “Letterbox Companies”... 225 duction of a minimum wage in Germany, the Commission stressed that the application of German measures to transit and certain international transport operations could not be justified, as it creates disproportionate administrative barriers which prevent the Internal Market from functioning properly.62 It seems that according to the principle of proportionality Germany can implement the minimum wage, but not to everybody while in Germany. This would, for example, be the case of transit, where we can hardly talk about the provision of services in Germany.63 Owing to the lack of suitable cooperation between host and home country adminis- trations (as provided by Directive 96/71/EU), further legislative steps have been taken to prevent and counter “social dumping” and “letterbox companies”.64 These took the form of Directive 2014/67/EU of the European Parliament and of the Council on 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.65 Article 4(2) of the Directive provides a definition of a “genuine posting”, It indicates that in order to determine whether an undertaking genuinely performs substantial activities, these activities should constitute more than just purely internal management and/or administrative activities,66 and any such assessment should take into account such factual elements as, for example, the place where the undertaking has its registered office and administration, uses office space, pays taxes and social security contributions, or the place where the undertaking performs its substantial business activity. As we can see the main approach of those provisions is to “reconnect” service providers with the country in which their operations are most closely connected. If the problem of “letterbox companies” were to be solved by this “reconnection”, national controls should be systematic and effective. Absent

62 J. Barcz, The German Minimum Wage Act (MiLoG) and international transport in the light of EU law, Expert Opinion Prepared at the Request of the Employers Association: Transport & Logistics Poland (2015), available at: http://tlp.org.pl/wp-content/uploads/2015/07/barcz_ekspertyza_wersja-zewnetrzna_ ENG1.pdf (accessed 30 May 2017). 63 The European Commission has recently decided to start an infringement procedure also against France. On 16 June 2016 it sent a letter of formal notice to France owing to the consequences of the application of its minimum wage legislation in the road transport sector (European Commission, Press release’, IP/16/2101). 64 ETUC position on the implementation of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, Brussels, 14-15 March 2006, available at: http://www.etuc.org/documents/etuc-position-implementation-directive-9671ec-concerning-posting-workers-framework (accessed 30 May 2017). 65 [2004] OJ L 159. 66 It is worth noting that “purely internal management activities”, in connection with checking whether companies are genuine undertakings, has already been alluded to in EU regulations concerning the coordination of social security systems. Article 14(2) of the the European Parliament and of the Council Regulation No 987/2009 laying down the procedure for implementing Reg. (EC) No 883/2004 on the coordination of social security systems ([2009] OJ L 284) states that, when it comes to the posting of workers to another Member State by an employer “which normally carries out its activities” in its Member State, it should be understood that this employer “ordinarily performs substantial activities, other than purely internal management activities, in the territory of the Member State in which it is established, taking account of all criteria characterizing the activities carried out by the undertaking in question.” 226 Joanna Ryszka this, the situation would not seem to improve. It should be noted that in order to combat “letterbox companies” it is very important that not only home-state, but also the host-state is capable of checking if the company posting their workers is a genuine undertaking pursuing economic operations in its country of incorporation.67 This can be done, for example, by identification of the natural or legal person who is responsible for posting workers and stands behind a potential “letterbox company”.68 According to recital 42 of Directive 2014/67/EU, they can bear responsibility for the infringement of Directive 96/71/EC, because Member States “should investigate the matter further in order to establish the identity of the natural or legal person responsible for the posting.” We can see here, however, that they only should take appropriate actions, not that they must, which is a shortcoming of this provision. The other circumstance which could discourage host countries from carrying out effective controls could lay in the Com- mission’s fairly restrictive approach to the fight against the “administrative burdens” to the realization of the Internal Market freedoms. It is quite active in initiating infringement procedures in the event that Member States create restrictions or barriers to those freedoms.69 It could therefore be stated that without good intentions on the part of both host- and home country to provide effective controls, the situation seems hardly able to be changed. We may however look for another possible solution, and consider for example the establishment of European labour inspectors, whose task could be the identification of and keeping a register of “letterbox companies”.70 The problem of “social dumping” was also the subject of discussion by the CJEU in its judgments concerning the tension between social rights and the freedom to provide services (including freedom of establishment), especially the Court’s famous judgments in Laval, Rüffert, and Luxembourg.71 All of them concerned working standards, together with remuneration and the national labour legislation applicable to posted workers. J. Cremers rightly points out that “the primacy accorded to the freedom to provide services and the freedom of establishment actually encourages ‘social dumping’, because the Internal Market directly interferes with national regulatory frames and the lex loci laboris principle”.72 Also the European Trade Union Confederation (ETUC) has expressed concerns about the above-mentioned judgments, which in its opinion have created major social unrest. On the other hand, employer’s organizations expressed the opinion that these rulings have not affected the relationship between fundamental social rights and Internal Market freedoms, “not making either of them subordinate to

67 Cremers, supra note 33, p. 2-3. See also provisions of Chapter III of Directive 2014/67/EU. 68 Sørensen, supra note 5, p. 144. 69 Report from the Commission. Monitoring the application of European Union law 2015 Annual Report, COM(2016) 463 final. 70 European Parliament resolution of 14 January 2014 on effective labour inspections as a strategy to improve working conditions in Europe, point 40, P7_TA-PROV(2014)0012). 71 Respectively: case C-341/05 Laval [2007] ECR I-11767; case C-346/06 Rüffert [2008] ECR I- 01989; case C-319/06 European Commission v. Luxemburg [2008] ECR I-4323. 72 Cremers, supra note 33, p. 1. “Social Dumping” and “Letterbox Companies”... 227 the other”, based on use of the principle of proportionality.73 This difference of opinion between the social partners is also seen in the context of the current deliberations on the revision of Directive 96/71/EC, led by the European Commission working on a Mobility Package. One part of the deliberations concerns discussions on a “targeted review” of Directive 96/71/EC in the context of preventing “social dumping” and abuse of the free movement of services.74 We can see a division of opinion between the Mem- ber States and social partners over a suggestion concerning revision of the “posting of workers” principles. On the one hand we have nine Member States (Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia) and Business Europe who think that introduction of the principle of “equal pay for equal work in the same place” would be incompatible with a genuine Internal Market, in which sustainable economic development is driven by efficient, innovative, and competitive enterprises in a market underpinned by robust regulatory arrangements. They consider accusations about the occurrence of “social dumping” unfounded, because companies from those countries do not provide services by posted workers below their costs. Full implementation of lex loci labori would then mean, in their opinion, the definitive end of posting in theE U.75 On the other side we can mention seven Member States (Luxembourg, Belgium, France, Germany, Nederland, Sweden, Austria) and the ETUC. They strongly advocate a change of Directive 96/71/EC in order to introduce the principle of “equal pay for equal work in the same place”, which they think would, in addition to preventing “social dumping”, also “take away the incentive to circumvent posting provisions, inter alia through ‘letterbox companies’, because the principle of equal pay would apply regardless of the existence of the posting situation”.76 Taking into account the current discussion over the Directive 96/71/EC review and the suggestions of particular Member States as to which direction changes should take, one can propose a kind of a mixed solution. A minimum wage system seems to be a good measure to

73 ETUC response to ECJ judgments Viking and Laval. Resolution adopted by the ETUC Executive Committee, available at: http://www.etuc.org/sites/www.etuc.org/files/ETUC_Viking_Laval_-_resolu- tion_07038_2.pdf (accessed 30 May 2017). 74 Proposal of a directive of the European Parliament and of the Council amending Directive 96/71/ EC of TheE uropean Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, COM(2016) 128 final, submitted on 8 March 2016. On 10 May 2016 national parliaments exercised their powers under Article 5(4) TFEU and its Protocol (2) on the application of the principles of subsidiarity and proportionality, and gave the Commission a so-cold “yellow card”. On 20 July 2016 the European Commission decided that the posting proposal does not breach the subsidiarity principle (European Commission-Press Release. Posting of workers: Commission discusses concerns of national Parliaments, IP/16/2546). 75 Letter to the European Commission on the position of nine Ministers of the Member States opposed to the revision of the basic directive on the posting of workers, available at: http://www.inicjatywa.eu/wp-content/ uploads/2015/11/STANOWISKO-Stanowisko-ministrów-9.-państw-członkowskich-sprzeciwiające-się- rewizji-dyrektywy-podstawowej-o-delegowaniu-pracowników.pdf (accessed 30 May 2017). 76 Letter to the European Commission on the position of seven Ministers of the Member States opposed to the revision of the basic directive on the posting of workers, available at: http://www.zmpd.pl/aktualnosci_pliki/f- GLOWNY-921-1126-6673.pismo_7_ministrow.pdf (accessed 30 May 2017). 228 Joanna Ryszka counter “social dumping”, but appropriate steps should be taken to enhance access to information on its application in each Member State, and there should be cooperation between the suitable authorities of Member States, especially labour inspectors. Effec- tive information about working conditions and adequate supervision of compliance with them would seem not only to serve the protection of employees’ rights, but would also facilitate the freedom to provide services under the terms provided in Treaty provisions.

Conclusions

Posting of workers is the sphere of EU integration within which the interrelationship between “social dumping” and “letterbox companies” operations can be best observed. On one hand, when work is to be performed in the host Member State it must be ensured that appropriate working conditions are maintained in order not to hinder competition between companies and weaken the protection of workers’ rights. On the other hand, when services are to be provided by foreign companies in the host Member State they should not be allowed to avoid its national tax, labour or social rules. That means that the service provider posting his workers to the host Member States must be a real company, actually engaged in economic/business activity in its country of incorporation. “Letterbox companies” and “social dumping” should be treated as interdependent and interrelated, rather than mutually exclusive, concepts in EU law. The operations of “letterbox companies” may in fact be initiated in response to the occurrence of “social dumping”. In the first stage, companies from countries with low labour costs post their workers to countries with high labour costs, which implicates “social dumping”. In the second stage, companies from countries with high labour costs establish a company in a country with low labour costs, only to employ and delegate employees to the parent company, which implicates the operation of “letterbox companies”. Even if there are no legal definitions of “social dumping” or “letterbox companies” in the EU legal order, it is not true that the EU remains passive about their existence. There are many legal instruments (especially Directive 96/71/EC and Directive 2014/67/EU) and initiatives of EU institutions indicating an interest in resolving this problem (for example, the European platform of labour inspectors). Effective labour inspection, especially in the sphere of posting of workers, can undoubtedly be one of the measures suitable for combating ‘social dumping’ and “letterbox companies”. The Prevention and countering of “social dumping” and “letterbox companies” appears to be a matter of concern for both interested sides of industry, i.e. both workers (employees) and entrepreneurs (acting as employers). The former can feel that their rights are threatened, and the latter can feel that fair business competitiveness is endan- gered. When workers see their working conditions deteriorating they may lose motiva- tion and begin to work less productively. On the other hand, their reduced productiv- “Social Dumping” and “Letterbox Companies”... 229 ity can lead to a reduced business results for their employer-entrepreneur. It should be stressed that not only posted workers are affected by the negative consequences of “social dumping” and “letterbox companies”. A large number of poorly-paid employees may indeed lead to a situation whereby host-state companies will not depend on local workers and may put pressure on the wages and working conditions in their state.77 This is why countering “social dumping” and “letterbox companies” on the EU level is also of great interest to social partners, especially those representing the interests of employees within the framework of the ETUC, which provides EU institutions with many suggestions and recommendations, the main aim of which is to strengthen the social dimension of the Internal Market. As an example we can mention the ETUC’s demands for a directive setting minimum standards for labour inspection at the EU level, based on relevant International Labour Organization Conventions and Recom- mendations, and/or the coordination of collective bargaining in the case of trans-border situations.78 The increased use of “letterbox companies: began as a result of the Centros case and continued through the most extensive EU enlargement in 2004, and up until 2007- 2008. From this time forward, however, this trend seems to have diminished, which was essentially due to reforms of national company laws.79 Another reason for this change could be the EU institutions’ increased awareness of the existence of “letterbox companies” and subsequent legal measures taken to prevent this problem. It is also interesting that all of these measures were generally aimed at simultaneously preventing and combating both “social dumping” and “letterbox companies”, which could be seen as a premise to treat those concepts as interdependent and interrelated. It seems possible that if a suitable way can be found to prevent “social dumping”, the incidence of “letterbox companies” will also be lower. One of the reasons for establishing these companies will disappear, unless of course the main reason for such a “letterbox company” is to benefit from differential tax rates, in which case measures counteracting “social dumping” are unlikely to have much effect.

77 S. Tans, Case Report on Laval, 18 December 2007 (Case C-341/05) and Viking, 11 December 2007 (Case C-438/05), 10 European Journal of Migration and Law 249 (2008), p. 251; Bernaciak, supra note 29, pp. 5, 12 and 22. 78 ETUC action program 2015-2019’, point 150 and 306, available at: http://www.etuc.org/sites/www. etuc.org/files/other/files/20151007_action_programme_en-consolidated_0.pdf (accessed 30 May 2017). 79 Sørensen, supra note 5, p. 94.

XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016k 2016 PL ISSN 0554-498X

Dominik Horodyski, Maria Kierska*

ENFORCEMENT OF EMERGENCY ARBITRATORS’ DECISIONS UNDER POLISH LAW

Abstract: One of the most significant changes in modern arbitration rules is the adoption of emergency arbitrator proceedings. These proceedings were introduced in order to provide a party in need of urgent interim measures before the constitution of an arbitral tribunal with an additional option besides going to state courts. In emergency arbitrator procedures such a party may seize an emergency arbitrator to grant the requested urgent relief. This article provides the Polish perspective on the effectiveness of emergency arbitrator proceedings, given that the Polish law is silent on the institution of emergency arbitrator and the possible recognition and enforcement of the decisions of an emergency arbitrator. The article analyses the Polish regulations on interim measures, together with their enforcement, by comparing the relationship, similarities and divergences between an arbitral tribunal, a state court, and an emergency arbitrator. This brings us to the conclusion that the existing legal framework as to the enforcement of interim measures issued by an arbitral tribunal provides a solid foundation for drawing an analogy to the recognition and enforcement of such orders granted by an emergency arbitrator. Thus, the provisions on enforcement of arbitral tribunal’s orders per analogiam allow for the recognition and enforcement of emergency arbitrators’ decisions on interim measures in Poland.

Keywords: civil procedure, commercial arbitration, emergency arbitrator, arbitral tribunal,

Introduction

The recent proliferation of emergency arbitrator’s E( A) provisions in different arbitration rules has opened up to parties an additional mechanism for securing their claims at the pre-arbitral stage in cases submitted to arbitral proceedings. Despite the

* Ph.D. candidate, Jagiellonian University of Kraków (Poland), attorney admitted to the Polish Bar; Ph.D. candidate, Jagiellonian University of Kraków (Poland), attorney – trainee admitted to the Polish Bar. See generally C. Caher, J. McMillan, Emergency Arbitration: The Default Option for Pre-Arbitral Relief?, in: The International Comparative Legal Guide to: International Arbitration 2015 (12th ed.), Global Legal Group, London: 2015, p. 2; R. Bose, I. Meredith, Emergency Arbitration Procedure: A Comparative Analysis, 15(5) International Arbitration Law Review 186 (2012), p. 186; I. Welser, Fast Track Proceedings, 232 Dominik Horodyski, Maria Kierska fact, that the new provisions on EA have been approved worldwide by the arbitral community and practitioners, it is still difficult to predict their effectiveness, in part owing to the fact that emergency procedures were created as an initiative coming directly from arbitral institutions, with the goal of improving the functioning of their rules and assist- ing parties in need of urgent interim relief prior to the constitution of an arbitral tribunal. Given the contractual nature of institutional arbitration rules, they cannot provide for any coercive tools or enforcement mechanisms of EA decisions. Moreover, there is no multilateral enforcement agreement covering court-ordered, arbitral tribunal or EA-granted interim measures. Therefore the key to recognition and enforcement ofE A decisions involves examination of the relevant local legislation in order to determine how it responds to, or can be adapted to respond to, the introduction of EA. Three legal paths to the enforcement of EA decisions can be identified in the global practice: (i) national law clearly provides for the enforcement of EA decisions, which is the case in the Netherlands, Singapore and Hong Kong; (ii) enforcement under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, which is invoked in the USA; (iii) by applying the existing provisions for recognition and enforcement of interim measures granted by arbitral tribunals to EA decisions by analogy. The purpose of this article is to analyse the Polish regulations as well as potential Polish court practices with respect to the possibilities of enforcing EA decisions granting interim

Expedited Procedure and Emergency Arbitrator – Pros and Cons, in: B. Gessel-Kalinowska vel Kalisz (ed.), The Challenges and the Future of Commercial and Investment Arbitration, Court of Arbitration Lewiatan, Warszawa: 2015, pp. 220-222. E.g. the 2015 International Arbitration Survey: Improvements and Innovations in International Arbi tration, available at: http://www.whitecase.com/sites/whitecase/files/files/download/publications/qmul-int ernational-arbitration-survey-2015.pdf (accessed 30 May 2017), p. 29, according to which 93% of respondents favor the inclusion of provisions on EA in institutional rules; D. Horodyski, M. Kierska, Enforcement of emergency arbitrator’s decisions – legal problems and global trends, 1(33) Kwartalnik ADR Arbitraż i Mediacja 19 (2016), pp. 37-38. See also Caher & McMillan, supra note 1, pp. 1-2, where the authors state that an increasing number of parties have made use of EA. Also a survey is presented that shows the number of emergency arbitrator applications received as of March 2015 by an illustrative list of arbitral institutions. As to the growing popularity of EA proceedings, see generally F.G. Santacroce, The emergency arbitrator: a full-fledged arbitrator rendering an enforceable decision?, 31(2) Arbitration International 213 (2015), p. 284; Bose & Meredith, supra note 1, p. 193. The Dutch Code of Civil Procedure, Article 1043b(2); Singapore’s International Arbitration Act (as amended in 2012) Sec. 2(1), Sec. 19; Hong Kong’s Arbitration Ordinance (as amended in 2013) Sec. 22B(1) and 22B(2). However, this path is especially troublesome, since the New York Convention applies primarily to final arbitral awards, hence extending it to interim measures is based on the precondition of finality of such orders. Without an express definition of a final arbitral award in the New York Convention, the US case law contends that the finality requirement should be understood broadly to allow the enforcement of arbitral tribunal’s and EA’s interim orders. See Santacroce, supra note 2, pp. 304-305. For a more thorough analysis of the different national legal systems’ approaches towards the enforcement of EA decisions, see Horodyski & Kierska, supra note 2, pp. 33-35; Caher & McMillan, supra note 1, pp. 2-3. Enforcement of Emergency Arbitrators’ Decisions... 233 measures of protection. Given the fact that the Polish Code of Civil Procedure (CCP) has not been changed to adjust to these new regulations, it lacks provisions explicitly enabling the court to recognize or enforce EA decisions. Therefore, we argue that the third path leading towards enforcement might be followed in Poland. In abovementioned context, it is vital to review the Polish regulations in order to establish the legal status of EA decisions and subsequently determine whether it will be possible to enforce such decisions before a Polish court by using the existing legal framework on recognition and enforcement of interim measures granted by arbitral tribunals per analogiam. This question is particularly pertinent since the efficiency of arbitral proceedings, and in particularly the enforcement of arbitral tribunals’ awards or orders, still tends to be the most important factor influencing the popularity and at- tractiveness of arbitration as an alternative to state judicial systems. This article is composed of two parts. The first part provides an analysis of the Polish regulations on interim measures by comparing the relationship, similarities and divergences between an arbitral tribunal and state courts, and between an EA proceeding and an arbitral tribunal. The second part examines the enforcement of interim awards by an arbitral tribunal and a state court, as well as by an EA and a state court. As a result, it holistically illumi- nates the problem of interim measures in arbitration, making it possible to detect possible legal problems under Polish law when parties choose to seek interim relief in arbitration. This is vital from the perspective of examining the effectiveness ofE A proceedings, since it is up to the parties to decide upon the forum in which to seek interim protection.

1. Polish regulations on interim measures in arbitration

1.1. Arbitral tribunals and state courts Polish regulations follow the path established by the UNICTRAL Model Law of 1985

Kodeks postępowania cywilnego [The Code of Civil Procedure: CCP], Offcial Journal (Dz. U.) 2016, No. 1822 as amended; accessible in Polish at: http://isap.sejm.gov.pl/DetailsServlet?id=WDU196404302 96 (accessed 30 May 2017). The Polish regulation on domestic and international arbitration is contained in part 5 of the CCP. See the 2015 International Arbitration Survey, supra note 2, p. 29, according to which an important factor influencing the choice of forum between state court and arbitral tribunal in the context of an emergency award is the enforceability of any decision rendered. See also Ch. Brown, The Enforcement of Interim Measures Ordered by Tribunals and Emergency Arbitrators in International Arbitration, in: A. J. van den Berg (ed.), International Arbitration: The Coming of a New Age?, ICCA Congress Series No. 17, Singapore: 2013, pp. 289-290, where the author stresses the importance of enforceability of arbitral tribunals’ and EA decisions on interim measures for the efficiency of international arbitration as an legitimate method of settling international commercial disputes. Moreover, this is consistent and fulfills the purpose of an arbitration agreement. Polish law, under the Article 1166 and Article 1181 § 1 of CCP, leaves it open for the parties to decide upon the forum in which to seek interim protection. This concept is developed further in the article. The UNCITRAL Model Law on International Commercial Arbitration of 1985 (original version), available at: http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf (accessed 234 Dominik Horodyski, Maria Kierska and provide for two ways to seek interim measures in arbitration. On one hand, the competence to decide on this matter is bestowed on state courts. Article 1166 of the CCP provides that the fact that a dispute has been brought before an arbitral tribunal does not impair the possibility to have the claim(s) secured by a state court. It affirms the general competence of a state court to decide upon interim relief even though the case is submitted to arbitration and an arbitral tribunal has been constituted. It should also be noted that according to Article 1166 § 2 of the CCP Polish courts have jurisdiction over interim measures in arbitration even if the place of arbitration is outside of the territory of Poland, or the place of arbitration is not stipulated. In such a case the general rule stating that the jurisdiction of Polish courts over interim measures is dependent upon their jurisdiction on the merits of the case is suppressed.10 On the other hand, Article 1181 of CCP authorizes an arbitral tribunal to decide on interim measures. It states: § 1. Unless the parties have agreed otherwise, the arbitral tribunal, at the request of the party who substantiated his claim, may decide to apply such security as the arbitral tribunal deems reasonable considering the matter at issue. When issuing a relevant decision, the arbitral tribunal may condition its enforcement on the provision of relevant security. § 2. At the request of a party, the arbitral tribunal may change or set aside a decision issued pursuant to § 1. § 3. An order of the arbitral tribunal to apply an interim security measure shall be enforced after the court has issued a writ of execution for that decision. The provisions of Article 1214 § 2 and 3 and Article 1215 apply accordingly. It should be pointed out that the solution adopted by the Polish legislator reflects the development of arbitration practice and provides parties with wider autonomy in deciding their cases, and also strengthens the efficiency of legal protection rendered by arbitral tribunals.11 The parties therefore have a choice between a state court or an arbitral tribunal with respect to seeking interim relief.12 At the same time, giving each party a free and unrestricted choice between either forum might create the problem of concurrent jurisdiction and a possible conflict between an arbitral tribunal’s and state court’s prerogatives, which has led some authors to postulate the introduction of coordination mechanisms, impeding parties from using both methods of securing claims

30 May 2017). 10 W. Głodowski, Zabezpieczenie roszczeń dochodzonych przed sądem polubownym [Securng claims lodged before the arbitral tribunal], 1(5) Kwartalnik ADR Arbitraż i Mediacja 97 (2009), p. 102. 11 Ibidem, p. 99. 12 See T. Ereciński, Postępowania o stwierdzenie wykonalności zagranicznego wyroku arbitrażowego (zagadnienia wybrane) [Proceedings towards the declaration of enforceability of a foreign arbitration award (selected issues)], 5(1) Kwartalnik ADR Arbitraż i Mediacja 66 (2009), pp. 68-73; Głodowski, supra note 10, pp. 98-99; A. W. Wiśniewski, M. Hauser-Morel, Postępowanie zabezpieczające [Securing procedures], in: A. Szumański (ed.), System Prawa Handlowego, Arbitraż Handlowy Tom 8, CH Beck, Warszawa: 2010, pp. 484. Enforcement of Emergency Arbitrators’ Decisions... 235 simultaneously, or one method after another.13 The introduction ofE A and its growing popularity exacerbates the problem by providing a third forum when it comes to seeking interim protection.14 Moreover, Polish law, in Articles 730 – 757 of CCP, sets forth a detailed procedure as to court-ordered interim measures. In certain circumstances it might turn out to be burdensome, especially for foreign parties. This is due to the fact that there is no separate procedure for court-ordered interim measures in aid of arbitral proceedings; the court simply follows the same procedure as for interim measures in aid of state court proceedings.15 The first problem that arises is choosing which court is authorized to review the motion. According to Article 1158 § 1 of CCP, each reference to “a court” means a court which would be competent to hear the case if the parties had not implemented an arbitration clause. Hence, the requesting party needs to establish which court has jurisdiction (as to the subject matter of the case) to hear the case under Polish law, and apply to that court to seek interim protection.16 Secondly, Article 7301 § 1 of CCP requires the requesting party to substantiate not only a claim, which is also required pursuant to Article 1181 of CPP in the procedure for seeking interim relief before an arbitral tribunal, but also its legal interest in obtaining the security for a claim. A legal interest in securing a claim exists if the lack of such a measure impedes or significantly hinders the enforcement of a ruling issued in a given case, or otherwise impedes or seriously hinders satisfaction of the purpose of the proceedings in the case.17 In order to substantiate a claim or a legal interest the party does not need to prove them in a legal manner – it is sufficient to establish prima facie grounds justifying their existence.18 Whereas, the majority of arbitration rules do not establish any explicit requirements or guidelines for the arbitral tribunal’s discretion to grant interim measures. The rules merely state that the arbitral tribunal/EA may grant such measures as it considers appropriate.19 Nevertheless, Article 1181 § 1 of CCP pro-

13 See A. Zieliński, Komentarz do art. 1181 Kodeksu postępowania cywilnego [Commentary to article 1181 of the Code of Civil procedurę], in: A. Zieliński (ed.), Kodeks Postępowania Cywilnego Komentarz, CH Beck, Warszawa: 2016, p. 1819. 14 For a more thorough analysis of the concept of concurrent jurisdiction and its consequences, see D. Horodyski, M. Kierska, Concurrent jurisdiction and its consequences in context of enforcement of interim measures of protection in arbitral proceedings, 3(35) Kwartalnik ADR Arbitraż i Mediacja 19 (2016). 15 Excluding Articles 753, 754 and 755 § 1 of CCP in terms of the arbitrability requirement. 16 Głodowski, supra note 10, p. 100. 17 A. Jakubecki, Komentarz aktualizowany do Art. 730(1) Kodeksu postępowania cywilnego [Updated Commentary to article 730(1) of the Code of Civil procedurę], in: A. Jakubecki (ed.), Komentarz aktualizowany do ustawy z dnia 17 listopada 1964 r. Kodeks postępowania cywilnego (LEX/el.: 2016). 18 Zieliński, supra note 13, p. 488. 19 E.g. para. 36.1. of Lewiatan Court of Arbitration Rules; Article 28.1. of ICC Arbitration Rules; Article 25.1. of LCIA Arbitration Rules; and Rule 26.1. of SIAC Arbitration Rules. For a more thorough analysis of the grounds to order interim measures of protection in arbitral proceedings, see D. Horodyski, M. Kierska, Przesłanki orzekania o środkach zabezpieczających w arbirażu handlowym [Prerequisites condi- tioning the security measures in commercial arbitration], 3(283) Przegląd Prawa Handlowego 51 (2016), 236 Dominik Horodyski, Maria Kierska vides that the arbitral tribunal may grant interim measure if a requesting party substantiated the grounds for the claim. Therefore, if the recognition or enforcement of interim measures in Polish courts is anticipated, it is advisable for the arbitral tribunal/EA to refer to that prerequisite. Thirdly, when it comes to the protection of monetary claims, the requesting party is obliged to choose the interim relief from the list provided in Article 747 of CCP.20 Thus the parties are limited to seeking a specific type of interim measures, and the state court can only issue interim relief that is both listed in the relevant provision and is sought by the party,21 while the arbitration rules generally allow for an open catalogue when it comes to the types of interim measures sought in arbitral proceedings.22 Fourth, according to the Polish procedure, the court may order an interim measure ex parte,23 i.e. without notifying the enjoined party, which might be beneficial for the requesting party.24 In addition the court, unlike the arbitral tribunal, might decide on interim measures not only inter partes but also as to third parties’ obligations.25

1.2. Emergency arbitrator and an arbitral tribunal Prior to the introduction of EA proceedings, in cases where an arbitral tribunal had not yet been established parties could only wait for the constitution of the arbitral tribunal or seek interim relief before the state courts. Under Polish law, interim relief ordered by a state court at the pre-arbitral stage is subject to the same CCP provisions pp. 51-59. 20 Article 747. Monetary claims shall be secured by means of: 1) attachment of movable property, remuneration for work, money in a bank account or other amounts due or property rights; 2) mortgaging the obligor’s immovable property; 3) prohibiting the selling and/or encumbering of immovable property which does not have a land and mortgage register or whose land and mortgage register has been lost or destroyed; 4) mortgaging a ship or a ship under construction; 5) prohibiting the sale of a cooperative title to premises; 6) compulsory administration over the obligor’s enterprise or agricultural farm, or a plant comprising part of the enterprise, or a part of the enterprise or the agricultural farm. 21 Jakubecki, supra note 17. 22 E.g. Para. 36.1. of Lewiatan Court of Arbitration Rules and Article 28.1. of ICC Arbitration Rules. But see Article 26.2. of UNCIRAL Arbitration Rules. 23 While, the arbitral tribunal must decide inter partes on interim measures, due to the clear meaning of Article 1183 of CCP, which sets forth the obligation to treat parties equally and to provide parties with the right to be heard and to present their allegations; see A. Sidor, K. Dąbrowska, Zabezpieczenie wykonalności wyroku sądu polubownego w kontekście nowego regulaminu Sądu Arbitrażowego Lewiatan [Securing the enforceability of an arbitration award in the context of the new rules of the Lewiatan Court of Arbitration], 3-4(10-11) e-Przegląd Arbitrażowy 36(2012), p. 46. 24 Although pursuant to Article 733 of CCP, when granting interim measures prior to the commence- ment of proceedings the court shall determine a time limit, not exceeding two weeks, within which an initial pleading (request for arbitration) should be filed. If the requesting party fails to file the request for arbitration within this period, the interim measure shall be cancelled. 25 Głodowski, supra note 10, p. 103. Enforcement of Emergency Arbitrators’ Decisions... 237 as interim relief issued by a state court after constitution of the arbitral tribunal. This means that the parties need to follow the procedure set out in Articles 730–757 of CCP, which is subject to the same challenges as described above. The Polish legislator has not yet introduced provisions that would directly regulate the institution of an EA procedure and its competences to issue interim measures of protection in arbitral proceedings, which puts into question the effectiveness of EA decisions on interim relief. Article 1181 of CCP directly refers to an arbitral tribunal only as a body authorized to deal with interim measures. Thus a legal problem arises whether, in light of the lack of a direct regulation as to the EA itself, and consequently as to the enforcement of EA orders, this lacuna may be filled by the analogous regulation on the competence of arbitral tribunals to order interim measures, and subsequently on the provisions allowing the enforcement of such orders granted by arbitral tribunals. To answer this question, it appears necessary to compare these two institutions and verify if the similarities between them justify such a thesis. It should be noted that an EA cannot be viewed simply as an arbitral tribunal because its position, method of appointment and competences are different.26 The first difference regards the composition of both bodies. In contrast to an arbitral tribunal, which might act as a collegial body, the function of EA is always fulfilled by a sole arbitrator.27 When it comes to its duties, the EA appears in arbitration proceedings only inciden- tally, to deal with a specific claim – a request for interim protection. The obligation of an EA is thus to provide a decision on interim measures in a quick and effective manner, without pre-judging the substance of the case in dispute. As to his or her appointment, the EA is in different position than an arbitral tribunal. While the arbitral tribunal is composed of arbitrators nominated by the parties, the EA is appointed by the arbitration institution.28 On one hand, such a method of appointment might be considered as a limitation on the parties’ autonomy and therefore may put into question the legitimacy of an EA procedure. On the other hand, the institution of EA is designed to act in urgent circumstances, prior to the constitution of an arbitral tribunal, thus awaiting the parties’ joint appointment could make the role of EA largely ineffective. In addition, an EA independence is strengthened by the fact that he or she cannot be subsequently appointed as an arbitrator. In fact the relationship between the parties and the EA is much weaker than the relationship between the parties and the arbitrators, which are nominated by them. Unlike arbitrators nominated by parties, an EA is

26 See also M. Asłanowicz, Arbiter doraźny [Emergency arbitrator], 8(782) Przegląd Ustawodawstwa Gospodarczego 18 (2013), pp. 18-22, where the author clearly states that an interim order granted in EA is enforceable under Article 1181 § 3 of CCP. However, such a thesis fails to take into account the differences between an EA and arbitral tribunal. 27 Of course, more similarities exist when the case is determined by a sole arbitrator. 28 For instance, under ICC Arbitration Rules, Appendix V – Emergency Arbitrator Rules, Article 2 the President of the ICC Arbitration Court should appoint an emergency arbitrator; according to Article 9.6. of LCIA Arbitration Rules, an emergency arbitrator shall be appointed by the LCIA Court; pursuant to § 4(1) of Appendix II to the Lewiatan Court of Arbitration Rules, the President of the Arbitration Court appoints an emergency arbitrator. 238 Dominik Horodyski, Maria Kierska not inclined to satisfy “his/her party” in order to get another appointment. In this context the position of an EA might paradoxically be considered as more independent than the position of an arbitral tribunal. The arbitral tribunal, which conducts the entire proceedings until final determination of the case, might be reluctant to decide upon interim measures for fear of revealing its point of view on the substance of the case.29 As to the competences of an EA compared to an arbitral tribunal, it might be observed that an EA is given broad powers to conduct the proceedings in the manner she/he considers appropriate, taking into account the principles of urgency and due process.30 Interestingly, such provisions give EA greater leeway than an arbitral tribunal, since the latter is generally required to consult with the parties and follow any agreement the parties may reach.31The EA also enjoys the discretion as to the requirements for granting provisional measures, and is empowered to order any measure he or she considers appropriate, similarly to the powers of arbitral tribunal.32 In practice, the existence and acceptance of EA by the arbitration community is associated with the core feature of arbitration, which is trust in the arbitrators and arbitration institutions in terms of their professionalism and independence. This tends to be universally shared in the arbitration community, since the results of recent surveys show that the overwhelming majority of respondents (93%) favour the introduction of EA provisions into arbitration rules.33 Taking into account above-mentioned characteristics and qualities of EA and its proceedings, it seems that despite the apparent differences in the appointment of an EA in comparison to an arbitral tribunal, these should not hinder the state courts from recognizing the judicial nature of EA proceedings and consequently – the enforceability of its decisions.34

29 Of course, this does not impair the general obligation of impartiality and independence that is common both for EA and an arbitral tribunal. See R. Schütze, Institutional Arbitration: Article-by-Article Commentary, Beck, Munchen: 2013, pp. 144-145. 30 E.g. Lewiatan Court of Arbitration Rules, Appendix II, para. 5.1.; ICC Arbitration Rules, Appendix V, Article 5.2. 31 J. Fry, S. Greenberg, F. Mazza, The Secretariat’s Guide to ICC Arbitration, ICC Publication 729, Paris: 2012, p. 298. 32 E.g. SIAC Arbitration Rules Schedule 1 – Sec. 5, 6, 11; para. 5 and para. 6 of Appendix II to the Lewiatan Court of Arbitration Rules. 33 The 2015 International Arbitration Survey, supra note 2, p. 29. See also: M. Grando, The Coming of Age of Interim Relief in International Arbitration: A Report from the 28th Annual ITA Workshop, Kluwer Arbitration Blog, 20/07/2016, available at http://kluwerarbitrationblog.com/2016/07/20/the-coming-of- age-of-interim-relief-in-international-arbitration-a-report-from-the-28th-annual-ita-workshop/ (accessed 30 May 2017), where the author concludes that the system of interim measures in arbitration is mature and has become routine, which is a significant development that has undoubtedly strengthened the arbitral system and allowed it to evolve into a more sophisticated and self-standing system of dispute resolution. This is a welcome development for the users of international arbitration, who are getting closer to the ideal of being able to resolve disputes entirely at the international level. 34 See generally R. Werdnik, The enforceability of emergency arbitrator’s decisions, Austrian Yearbook on International Arbitration (2014), p. 274. For a detailed definition and analysis of EA’s role, see also Enforcement of Emergency Arbitrators’ Decisions... 239

In addition, the right to seek interim measures granted by EA is consistent with the intent of parties and results from the direct provisions of applicable arbitration rules. If the arbitration rules have been agreed on before the adoption of EA provisions, the parties should give explicit consent to the application of EA provisions to make them binding.35 Thus the intent of parties should prevail. Moreover, both the arbitral tribunals and EA decisions share the same goal, which is securing the interests of a party seeking urgent and effective interim relief, even if at different arbitral stages. Therefore, even though the decision of an EA cannot be treated simply as an interim measure rendered by an arbitral tribunal, they might by treaded analogously because the conditions under which they are issued and the aim they serve are parallel to orders issued by arbitral tribunals.36

2. Polish regulations on the enforcement of interim measures in arbitration

2.1. Arbitral tribunals and state courts Enforcement of interim measures issued by arbitral tribunals and state courts differ significantly. When it comes to the procedure before state courts, enforcement is granted automatically pursuant to Article 743 § 1 of CCP, which states that if an order on interim relief is enforceable by execution, provisions on execution proceedings apply accordingly to the enforcement of that order, provided that the court issues a writ of execution ex officio to the decision to grant security. An order on interim relief issued by a state court is hence enforceable from the date of its issuance, which constitutes a meaningful advantage for the requesting party and is probably the most important benefit of seeking interim relief before a state court. Additionally, the possibility of obtaining an enforceable interim relief order before filing a request for arbitration, as well

Santacroce, supra note 2, pp. 292-302. 35 E.g. Article 29 (5) ICC Arbitration Rules; Article 9.14. LCIA Arbitration Rules. However, see also Y. Burova, Interim Relief Against the Host State: Analysis of Emergency Awards against Moldova, CIS Arbitration Forum, 28/07/2016, available at: http://www.cisarbitration.com/2016/07/28/interim-relief- against-the-host-state-analysis-of-emergency-awards-against-moldova/ (accessed 30 May 2017), where the author refers to the two most recent SCC emergency arbitration awards (Evrobalt and Kompozit v. Moldova), wherein both emergency arbitrators agreed upon the applicability of the 2010 SCC Arbitration Rules, while the Treaty containing the offer to arbitrate was signed in 1998. Neither did the 1998 SCC Arbitration Rules, in force at that time, provide for emergency interim measures, nor did the subsequent 1999 and 2007 versions. Therefore, the question arose whether Article 10 of theT reaty could encompass the 2010 version, including emergency arbitration rules. Both emergency arbitrators found the 2010 version prima facie applicable; firstly, because under the Preamble to the 2010 version, any reference to the SCC arbitration in the arbitration agreement “shall mean the rules in force on the date of the filing of an application for emergency arbitration”; and secondly, had the contracting parties wished to freeze any applicable version of the SCC Rules, they would have provided for it in the Treaty. In the absence of such a specific declaration, it was concluded that the 2010 Rules were within the reasonable contempla- tion of the parties. 36 See Asłanowicz, supra note 26, pp. 18-22; Horodyski & Kierska, supra note 2, pp. 35-37. 240 Dominik Horodyski, Maria Kierska as without notifying the enjoined party, should be considered as another incentive to use Polish state jurisdiction rather than an arbitral tribunal.37 The enforcement of an arbitral tribunal’s decision (both in the form of an order and an award) under Polish law is subject to the recognition or enforcement procedure prescribed in Articles 1212 – 1217 of CCP. Article 1212 § 1 of CCP states that a judgment of an arbitral tribunal has the same legal effect as a court judgment upon its recognition or enforcement by the court. This requirement is repeated in Article 1181 § 3 of CCP, which may be treated as lex specialis from the general norm of Article 1212 § 1 of CCP with respect to orders for interim protection. Article 1181 § 3 of CCP states that an order of an arbitral tribunal granting an interim measure of protection shall be enforced after the court has issued a writ of execution for that decision. The second sentence of Article 1181 § 3 of CCP provides that Article 1214 § 2 and § 3 of CCP, as well as Article 1215 of CCP, shall apply accordingly, with respect to the enforcement of interim measures if the seat of arbitral proceedings is located in Poland, and to foreign interim measures respectively. The requirements for confirmation or enforcement are the same for both interim measures and final awards issued by arbitral tribunals.38 According to Article 1214 § 2 of CCP the court issues a writ of execution to enforce an order on interim measures that is enforceable by execution. Article 1214 § 3 of CCP sets forth the premises upon which the court is prohibited from granting enforcement.39 The first criterion is the arbitrability of the case, which means that the case could not be submitted to arbitration (pursuant to Article 1157 of CCP, unless otherwise provided for by specific regulations the parties may bring disputes involving property rights or disputes involving non-property rights which can be resolved by a court settlement, except maintenance cases, before an arbitration court).40 Second, enforcement cannot be granted if it would be contrary to the basic principles of the legal order of the Republic of Poland (the public order clause).41 Article 1215 of CCP sets forth additional exceptions which apply only to the enforcement of interim measures issued abroad. These exceptions are as follows: (i) there was no arbitration agreement, the agreement is invalid, ineffective or has expired; (ii) the party was not given proper notice of the appointment of an arbitrator, of the arbitral proceedings, or was otherwise unable to present its case before the arbitral tribunal; (iii) the award deals with a dispute not contemplated by or beyond the scope of the arbitration agreement; (iv) the composition of the arbitral tribunal or the arbitral procedure was inconsistent with the parties’ agreement, or where no agreement had been con-

37 E.g. Głodowski, supra note 10, p. 105; Sidor & Dąbrowska, supra note 23, pp. 36-37. 38 See Sidor & Dąbrowska, supra note 23, pp. 43-44. 39 In that context, it is worth mentioning that Article 1214 § 3 of CPP differs from Article V(2) of the New York Convention, which defines two grounds (arbitrability and public policy) upon which a state court may, on its own motion, refuse recognition and enforcement of an award. Hence the New York Convention provides a state court with discretion, instead of obliging the court to refuse recognition or enforcement of the arbitral award in the above two instances. 40 See M. Łaszczuk, J. Szpara, Postępowanie postarbitrażowe [Post arbitrary proceedings], in: Szumański (ed.), supra note 12, pp. 669-670. 41 Ibidem, pp. 670-671; Zieliński, supra note 13, pp. 1850-1851. Enforcement of Emergency Arbitrators’ Decisions... 241 cluded – inconsistent with the law of the country in which the arbitration proceedings took place; (v) the order has not yet become binding on the parties or has been set aside or suspended by a court of the country in which that award was rendered. The party opposing the enforcement or recognition of an interim measure must raise and formulate these exceptions in order for the court to consider them. This means that, contrary to the grounds for refusal of recognition and enforcement formulated in Article 1214 § 3 of CCP, which are taken into account by the court ex officio, the party against whom the decision is invoked needs to raise them and prove them before the court. In this respect, it should be stressed that the Polish framework for recognition and enforcement of an arbitral tribunal’s interim measures, as provided for in Article 1181 § 3, Article 1214 § 2 and § 3 and Article 1215 of CCP, concerns both domestic and foreign decisions. In other words, parties are allowed to seek recognition or enforcement of such measures in Polish courts, even if the seat of arbitration is not in Poland. This is favourable to claimants, since most jurisdictions merely deal with enforcement at the seat of arbitration.42 Since the seat of arbitration is usually chosen by the parties due to its neutrality or geographical convenience, often neither party has any assets in that country. Thus the fact that Polish law in this respect does not differentiate between foreign and domestic interim measures is noteworthy, since it fosters the circulation of such orders and provides a comprehensive environment for the protection of legal claims. This is particularly true if the practice of Polish courts allows for the recognition and enforcement of interim measures ordered in EA, by applying Article 1181, Article 1214 and Article 1215 of CCP, per analogiam. 2.2. Emergency arbitrators and state courts When it comes to the enforcement of interim measures issued by a state court at the pre-arbitral stage, the Polish regulations apply the same provisions as for the protection of claims procedures (stipulated in Articles 730–757 of CCP). State courts are authorized, pursuant to Article 743 § 1 of CCP, to issue a writ of execution ex officio, which seems to be the fastest way of obtaining the enforceability of an interim measure, in particular if the place of arbitration is in Poland. In fact, the interim measures issued by a Polish court at the pre-arbitral stage share the same pros and cons as those issued in judicial proceedings or as the interim measures ordered after the constitution of an arbitral tribunal. The Polish CCP requires fulfilment of the same prerequisites in order

42 A. Yesilirmak, Provisional Measures, in: J.D.M. Lew, L.A. Mistelis (eds.), Pervasive Problems in International Arbitration, Kluwer Law International, New York: 2006, p. 199. See also e.g. Article 176(1) of the Swiss Federal Act on Private International Law, under which the provisions of this chapter apply to any arbitration if the seat of the arbitral tribunal is in Switzerland and if, at the time when the arbitration agreement was entered into at least one of the parties had neither its domicile nor its habitual residence in Switzerland. Similarly by virtue of Sec. 2(1) of the English Arbitration Act of 1996, the provisions of Sec. 42(1) allowing for enforcement of arbitral tribunal orders, apply only when the seat of arbitration is in England, Wales or Northern Ireland. The German Code of Civil Procedure, under the Sec. 1025(1) also allows for enforcement of arbitral tribunal’s interim measures only if the venue of the arbitration proceedings is located in Germany. 242 Dominik Horodyski, Maria Kierska to grant an enforceable interim measure before and after constitution of an arbitral tribunal, which makes the procedure universal in these two scenarios. As to the enforcement of interim measures issued in an EA proceeding, it has already been pointed out that the Polish CCP does not contain provisions that refer expressly to EA decisions. It appears unquestionable that the decisions issued by an EA can be confirmed by the court and become legally enforceable, however in the current legal framework this can be the case only if the courts would treat EA as an arbitral tribunal and apply per analogiam the relevant regulations pertaining to the enforcement of arbitral tribunals’ orders, as postulated above. In such a case the EA decisions will be subject to the same procedure and treated accordingly by the Polish courts. As has already been mentioned, this will also allow for recognition and enforcement of foreign EA decisions on interim measures, which is vital for parties engaged in an international dispute. An additional problem that might arise at the recognition or enforcement stage concerns the form of an interim measure issued by an EA. In different arbitration rules the interim measure decisions have different labels (e.g. an “order” in the ICC (International Chamber of Commerce) Arbitration Rules and Polish Court of Arbitra- tion at the Confederation of Lewiatan; an “order or award” in HKIAC (Hong Kong International Arbitration Center) and LCIA (London Court of International Arbitra- tion) Arbitration Rules; and a ‘decision’ in SCC (Stockholm Chamber of Commerce) Rules).43 The form of decision might be important because Article 1181 § 3 of CCP refers to “an order” (in Polish: “postanowienie” – DHMK), and not a decision or an award. Therefore, it could turn out that the court will deem a decision coming fromE A to be incompatible with the formal requirements contained in CCP, and set aside an application for recognition or enforcement of such a decision.44 With reference to this problem it might be pointed out that the court should recognize the principle of ‘substance over form’, which means that the merits of the ruling at issue should be taken into consideration rather than its label.45 This argument is strengthened by the UNCITRAL Model Law on International Commercial Arbitra- tion, with amendments as adopted in 2006. Article 17 (2) clearly states that: “[a]n interim measure is any temporary measure, whether in the form of an award or in another form (…).” This suggests that according to the UNCITRAL Model Law interim measures do not require any particular form to be enforceable and effective. What’s more, this issue might be of less importance in practice, since in many arbitration rules the form of interim measures is universal both for arbitral tribunals and EA.46 Hence

43 But cf. M. Scherer, The New Emergency Arbitrator Provisions and Other Options for Urgent Relief Under the 2014 LCIA Rules, 1(4) European International Arbitration Review 81 (2015), pp. 99-100, where the author states that even though under LCIA Arbitration Rules the EA can decide freely whether the decision should take the form of an order or award, given the temporary nature of an award on interim measures, it is unlikely that such an award could fall under the enforcement regime of the New York Convention. 44 See Łaszczuk & Szpara, supra note 40, p. 669. 45 Werdnik, supra note 34, p. 275; Horodyski & Kierska, supra note 2, p. 31. 46 E.g. Article 28(1) and Article 29(2) of ICC Arbitration Rules; Article 25.2. and Article 9.8. of Enforcement of Emergency Arbitrators’ Decisions... 243 when it comes to the form, the EA decision should not be divergent from the same decisions issued by an arbitral tribunal, and thus should not prevent a Polish court from enforcing them. At the same time, it should be pointed out that, as was already mentioned above, monetary claims shall be secured by a state court through one of the types of interim measures provided in Article 747 of CCP, which is of a mandatory character. Hence it would be advisable for an EA to adhere to this catalogue if the enforcement of such measure is to be sought in Poland. Nevertheless, given that the EA is authorized to secure a claim as he/she deems fit, in our view the enforcement of such orders should not be hindered by the fact that they provide for a method of securing a claim which is not listed in Article 747 of CCP, so long as the chosen type of interim relief is not contrary to the Polish public order clause. The mere fact that the type of interim relief is incompatible with state law does not constitute grounds for a public policy rule.47 As a result, an order on interim measures providing for a method of securing a claim that is not contained in Article 747 of CCP should be enforced by Polish courts.

Conclusions

Due to the recent, significant development of arbitration practice worldwide, the Polish law on interim measures in the sphere of arbitration is becoming outdated. Nev- ertheless, the fact that provisions regarding the institution of EA and the legal grounds for recognition and enforcement of EA interim measures have not yet been incorporated into the Polish CCP might be justified by the novelty ofE A proceedings in the international domain. In this context it should be stressed that the Polish legal framework is a bridge between the UNCITRAL Model Laws of 1985 and 2006. Despite the fact that it is generally based on the UNCITRAL Model Law of 1985, Polish law directly provides not only for recognition and enforcement of arbitral tribunal’s orders on protective measures, but also allows for recognition and enforcement of interim measures irrespective of the country in which they were issued. That was not the case in the original text of the UNICTRAL Model Law, since Article 17 merely granted the arbitral tribunal the power to order interim measures, without referring to the possibilities of recognition and enforcement. Hence it may be said that the Polish law established a more advantageous framework for the enforcement of interim measures of protection

LCIA Arbitration Rules; § 36(3) of Lewiatan Court of Arbitration Rules; and § 6.1. Appendix II to Lewiatan Court of Arbitration Rules. 47 According to the Polish Supreme Court, the meaning of public policy is narrow since it encompasses the constitutional norms and those of fundamental importance for the legal system. Hence, not all norms of a mandatory character fall within the scope of the public policy domain. See wyrok Sądu Najwyższego [judgment of the Supreme Court], dated 9 September 2010, I CSK 535/09, published in Rzeczpospolita, PCD 2010/214/2 and wyrok Sądu Najwyższego [judgment of the Supreme Court), dated 30 September 2010, I CSK 342/10, unpublished. See also T. Ereciński, K. Weitz, Sąd arbitrażowy [Court of Arbitration], LexisNexis, Warszawa: 2008, chapter VI, point 3.3.1. 244 Dominik Horodyski, Maria Kierska than the UNICITRAL Model Law, until its amendment in 2006. The recognition and enforcement of arbitral tribunal’s measures is now provided for in Arts. 17H and 17I of the UNCITRAL Model Law of 2006. Nevertheless, the absence of both a multilateral enforcement agreement covering arbitral tribunals – and interim relief granted in an EA proceeding – as well as direct statutory regulation, does create a lacuna with respect to the recognition and enforcement of EA orders on interim protection, which could possibly lead to undesired and divergent court practices. The growing popularity of EA proceedings worldwide exacerbates any potential problems.48 In our view, analysis of the existing Polish legal framework as to the enforcement of arbitral tribunal orders on interim measures of protection provides a solid foundation for drawing an analogy between such orders and those granted in an EA proceeding. We thus argue that Article 1181, together with Article 1214 § 2 and § 3 and Article 1215 of CCP, can be viewed as establishing per analogiam grounds for the recognition and enforcement by Polish courts of EA decisions on interim measures. Moreover, the views and legal reasoning supporting the possibility of enforcing EA decisions as arbitral decisions under Polish law proposed in this article may be applicable to other states’ legislation which does not expressly provide for enforcement of EA interim measures, but allows for the recognition and enforcement of arbitral tribunal’s orders. This is the case, for example, in England, Switzerland and Germany, as well as in other countries that based their law on the UNCITRAL Model Law on International Commercial Arbitration, with amendments, as adopted in 2006, such as Belgium, Ireland, Australia and New Zealand.49 Nevertheless, given the legal uncertainty as to the enforcement of EA decisions, it should be stressed that since the existence of EA proceedings have no effect on the avail- ability of judicial interim measures, from the Polish perspective it might be still advisable to seek interim protection at the pre-arbitral stage from the state courts.

48 See J. Lundstedt, SCC Practice: Emergency Arbitrator Decisions, Arbitration Institution of the Stockholm Chamber of Commerce, Stockholm: 2013, pp. 25-26, where the author states that given that the most prominent arbitral institutions have already introduced EA proceedings into their rules, the trend is clear that these types of provisions are here to stay. 49 Swiss Federal Act on Private International Law, Article 183(2), under which if the party so ordered does not comply with interim relief and conservatory measure voluntarily, the arbitral tribunal may request the assistance of the competent court. TheE nglish Arbitration Act of 1996 in Sec. 42(1) provides that the court may make an order requiring a party to comply with a peremptory order made by the tribunal, however under Sec. 42(3) the court shall not act unless it is satisfied that the applicant has exhausted any available arbitral process with respect to failure to comply with the tribunal’s order. TheG erman Code of Civil Procedure states, in Sec. 1041(2), that the court may permit the enforcement of an arbitral tribunal’s provisional measures or measures serving to provide security. The United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration 1985, with amendments, as adopted in 2006, Article 17H(1) provides that an interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued; see also Horodyski & Kierska, supra note 2, pp. 55-56.

XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016l 2016 PL ISSN 0554-498X

Dorota Pyć*

COMPLIANCE WITH AN ENFORCEMENT OF MARITIME LABOUR CONDITIONS – THE POLISH LEGAL PERSPECTIVE

Abstract: The Maritime Labour Convention (MLC 2006) entered into force in 2013. The MLC 2006 aims at creating a single, coherent global instrument, consolidating existing Interna- tional Labour Organisation conventions, and as well constitutes one of the main international maritime instruments of the International Maritime Organization, together with the International Convention for the Safety of Life at Sea (SOLAS), the International Convention for the Prevention of Pollution From Ships (MARPOL) and the Internation- al Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW). Seafarers are entitled to lodge complaints on board a ship in case of non-compliance with the legal standards, procedures, or guidelines set forth in the MLC 2006, including seafarers’ human rights. The complaint system must include safeguards against victimisation. In 2015, the regulations of the MLC 2006 were implemented into a new Polish Act on Maritime Labour (MLA 2015). One of the most innovative aspects of the MLA 2015, as far as ILO Conventions are concerned, is the certification of seafarers’ living and working conditions on board ships, regulated in Chapter 8 of the Act (entitled: MLC documents and inspections and controls of the ship), as well as the on-board complaint procedure described in a detailed manner in Chapter 9 of the new Act.

* Associate Professor, Department of Maritime Law, Faculty of Law and Administration, Gdańsk University. Text of the Maritime Labour Convention, 2006, as amended (MLC, 2006), available at: http://ilo. org/global/standards/maritime-labour-convention/lang--en/index.htm (accessed 30 May 2017). 1 M.L. McConnell, D. Devlin, C. Doumbia-Henry, The Maritime Labour Convention, 2006: A Legal Primer to an Emerging International Regime, Martinus Nijhoff Publishers, Leiden-Boston: 2011, pp. 37-62. F. Piniella, J.M. Silos, F. Bernal, Who will give effect to the ILO’s Maritime Labour Convention, 2006?, 152(1) International Labour Law 61 (2013); J. Whitlow, R. Subasinghe, The Maritime Labour Convention, 2006: A model for other industries?, 7(1-2) International Journal of Labour Research 118 (2015). D.B. Stevenson, Maritime Labour Law, in: M. Fitzmaurice, N. M. Gutiérrez, I. Arroyo, E. Belja, (eds.), The IMLI Manual on International Maritime Law, Vol. II, Shipping Law, Oxford University Press, Oxford: 2016, pp. 209-212. 248 Dorota Pyć

Keywords: certification system, MLC inspections and penalties, Polish Act on Mari- time Labour, on-board complaint procedures

INTRODUCTION

The Act of 5 August 2015 on Maritime Labour (MLA 2015) consists of thirteen Chapters. The eight main Chapters (numbered 2 to 9) follow theR egulations and Stan- dards set out in fiveT itles of the Maritime Labour Convention (MLC 2006). The MLC 2006 comprises three different but related parts: the Articles, the Regulations, and the Code. The Articles and Regulations set out the core rights and principles and the basic obligations of Members ratifying the MCL 2006. The Code contains the details for the implementation of the Regulations. It comprises Part A (mandatory Standards) and Part B (non-mandatory Guidelines). The provisions ofT itle 1 (Minimum requirements for seafarers to work on a ship) are covered by Chapters 2 and 3 of the MLA 2015. The provisions ofT itle 2 (Conditions of employment) are contained in Chapter 4. The provisions of Title 3 of the Convention (Accommodation, recreational facilities, food and catering) are included in Chapter 5. The provisions ofT itle 4 (Health protection, medical care, welfare and social security protection) are contained in Chapters 6 and 7 of the Act. The final provisions of the Convention, contained inT itle 5, (Compliance and enforcement), are included in Chapters 8 and 9 of the MLA 2015. The MLA 2015 regulates: the rights and duties of the parties to an employment relationship on board seagoing ships of Polish nationality; job agency for people looking for jobs on seagoing ships; requirements as to documentation related to work on seagoing ships; conditions of life and work of seafarers on seagoing ships of Polish nationality; and protection of health and social security protection of seafarers (Article 1.1). The MLA 2015 contains a few new subjects, particularly in the area of occupational safety and health aimed at meeting contemporary concerns, such as the effects of noise and vibration on workers or other workplace risks, but in general the Act aims at maintaining the standards provided for in the current instruments (ILO Conventions) at their present level. The provisions relating to flag State inspection, including the use of recognized organizations, are built upon the existing ILO maritime labour inspection Convention (No. 178). The potential for inspections in foreign ports (port State control) in Chapter 8 of the MLA 2015 is based on applicable maritime Conventions, in particular Convention No. 147 – the Merchant Shipping (Minimum Standards) Convention of 1976 and the Conventions adopted by the International Maritime Organization (IMO) and the regional port State control agreements (PSC MOU). However, the MLA 2015 builds upon them to develop a more effective approach to these important issues, consistent with other international maritime Conventions that

Ustawa o pracy na morzu [Maritime Labour Act], Official Journal (Dz. U.) 2015, Item 1569. See www.imo.org. Compliance with and Enforcement... 249 establish standards for quality shipping with respect to issues such as ship safety and security and protection of the marine environment. The MLA 2015, in its final provisions, contains a system of penalties for breaching the provisions adopted in the Act, to ensure they are implemented and to give the MLC 2006 full and complete effect.

1. CERTIFICATION SYSTEM

A maritime labour certificate, complemented by a declaration of maritime labour compliance (DMLC Parts I and II), is considered to constitute prima facie evidence that the ship has been duly inspected by the flag State’s competent authority and that the requirements of the MLC 2006 relating to working and living conditions of the seafarers have been met to the extent certified. As was also explained before, the MLC 2006 does not specify the legal form for implementation of the system to be established under Title 5. However the language of the MLC 2006 provisions, for example “shall require”, combined with the nature of labour inspection and certification, indicates that the form should be mandatory under the national legal system. The main requirements addressed are as follows: − ships must carry a valid maritime labour certificate and the associated two-part DMLC, if the ship is 500 gross tonnage or over and is engaged in international voyages, or if it operates from a port, or between ports, of another country (or for ships under 500 gross tonnage or operating only on domestic voyages, if requested by the shipowner); − the maritime labour certificate must certify that the working and living conditions of the seafarers on the ship have been inspected and meet the requirements of the country’s laws or regulations or other measures implementing the Convention. Un- like in the case of an interim maritime labour certificate, a DMLC must be attached to the maritime labour certificate. Part I of the DMLC, which is to be drawn up by the competent authority, identifies the national requirements in 14 areas listed in the MLC 2006 Appendix A5.1; Part II, which is drawn up by the shipowner and certified by the competent authority or recognized organization, identifies the measures adopted to ensure ongoing compliance with those national requirements; − the inspections related to issuance of the maritime labour certificate have to be carried out and, in prescribed circumstances, the certificate ceases to be valid or must be withdrawn. Article 89 of the MLA 2015 states that the ship’s compliance with the requirements of the Act and MLC 2006 with respect to working and living conditions of seafarers is certified by a maritime labour certificate. This certificate shall be issued, upon the shipowner’s request, by the director of the maritime office competent for the ship’s home port, for a period not to exceed five years. The certificate shall be issued based on positive inspection results of the working and living conditions of seafarers on the ship, undertaken by the inspection authority. A refusal to issue the certificate shall be 250 Dorota Pyć based on an administrative decision. The certificate’s validity shall be confirmed by the director of the maritime office competent for the ship’s home port, upon the inspection referred to in Article 94. According to Article 89(6), the certificate shall be declared invalid when: − the inspections of working and living conditions of seafarers, referred to in Article 94, did not take place on time; − the validity of the certificate has not been confirmed; − the ship changed its nationality; − the shipowner ceased to be responsible for the ship’s operation; − the ship’s construction or equipment have been significantly changed, affecting the working and living conditions of seafarers. The competent director of the maritime office may invalidate the certificate if the ship does not comply with the requirements of the Act or MLC Convention provisions and the shipowner did not undertake the required corrective measures. When taking a decision on invalidating the certificate, the type and nature of irregularities detected and the frequency of their occurrence should be taken into consideration. According to Article 90 of the MLA 2015, an Interim Maritime Labour Certificate is issued for a ship which: is newly built, after placed into operation; changed its nationality; on which the shipowner took over the responsibility for its operation. The director of the maritime office competent for the ship’s home port shall issue, upon the shipowner’s request, a temporary certificate for the period required to obtain a certificate, but for no longer than six months, which period may not be exceeded. The interim certificate may be issued when: − the inspection of working and living conditions of seafarers on the ship, undertaken by the director of the maritime office, gave positive results; − the shipowner demonstrated that the procedures applied on the ship are appropriate and in accordance with the requirements of the Act and MLC Convention; − the ship’s master is aware of the MLC Convention requirements referring to the working and living conditions of seafarers on the ship and the obligations connected with their implementation; − the director of the maritime office competent for the ship’s home port received necessary information which enables the preparation of a declaration of maritime labour compliance. A refusal to issue an interim certificate shall be based on an administrative decision. The interim certificate shall become invalid under the circumstances referred to in -Ar ticle 89(6)(1) and Article 89(6)(3)-(5). Article 91 of the MLA 2015 provides that a declaration of maritime labour compliance must confirm that the following provisions are complied with on the ship: provisions on the minimum age to be employed on the ship; medical certificates; professional qualification of seafarers; a seafarer employment agreement; job agency, time of work and rest, composition of the ship’s crew; conditions of accommodation, food and meals preparation; on-board recreational facilities; health and safety at Compliance with and Enforcement... 251 work; medical care; payment of remuneration and other benefits; as well as complaint procedures. This declaration shall consist of the following elements: − Part I – prepared by the director of the maritime office competent for the ship’s home port, containing a confirmation that the ship complies with the requirements of the MLC Convention and of the MLA 2015 with respect to working and living conditions of seafarers on the ship, with an indication of appropriate provisions in the national law or solutions principally equal, or exemptions granted by the competent body to a given ship; − Part II – prepared by the shipowner and stipulating the measures established in order to ensure compliance with the requirements determined in Part I of the declaration. The declaration shall be issued, upon the shipowner’s request, by the director of the maritime office competent for the ship’s home port, after verifying the information provided by the shipowner in Part II of the declaration, based on the positive results of an inspection concerning the working and living conditions on the ship. The declaration shall be annexed to the certificate and kept on board the ship. According to Article 92, a ship of a gross tonnage (GT) of at least 500 GT, involved in international shipping or shipping between ports of another country, shall have a certificate or an interim certificate and a declaration. For a ship of a gross tonnage of less than 500 GT, the certificate, the interim certificate and the declaration shall be issued upon the shipowner’s request. The certificate, the interim certificate and the declaration shall be issued in Polish and in English and, along with a copy the other language version, be shown in a visible place available for seafarers on the ship. The original of the certificate or the interim certificate and the declaration shall be kept with other documents of the ship and made available upon request of the competent authorities or upon the request of employers and employees organisations. A fee shall be charged for the inspection and the issuance of the certificate, the interim certificate, and the declaration. The fee shall constitute state budget revenue. The minister responsible for maritime economy shall issue, by way of regulation, a specimen of the certificate, the interim certificate, and the declaration (Parts I and II), taking into account the requirements provided for in this respect in the MLC 2006.

2. ON-BOARD COMPLAINT PROCEDURES

The MLC 2006 sets out the flag State’s obligation to establish a system related to the receipt of complaints by the competent authority. The MLC 2006 covers two areas of dealing with complaints: − the requirements for an on-board complaint procedure for seafarers to use; − the requirements for a port State to receive a complaint from a seafarer.

MLC, Section 5.1.5. 252 Dorota Pyć

Compliance with the MLC 2006 requirements is a matter for ship inspection and certification. The flag States require ships to have “on-board complaint- proce dures.” A formal and appropriate complaint procedure for the fair, effective and expeditious handling of seafarers’ complaints shall be made available on board by the shipowner. The procedures must allow seafarers to lodge complaints about any breach of the requirements of the MLC 2006, including, inter alia: − ships must have on-board procedures for the fair, effective and expeditious handling of seafarers’ complaints alleging breaches of the requirements of the Con- vention; − all seafarers must be provided with a copy of the on-board complaint procedures applicable on the ship; − the procedures must seek to resolve complaints at the lowest level possible, but seafarers must have the right to complain directly to the master and to appropriate external authorities; − victimization of seafarers for filing complaints must be prohibited; − seafarers must have the right to be accompanied or represented during the complaint procedure. In order to ensure that complaints may be resolved at the lowest possible level, the Polish MLA 2015 provides an appropriate complaint procedure. According to Article 96 of the Act seafarers have the right to lodge complaints about the non-provision of adequate conditions of life and work on a ship. Taking any actions against seafarers in connection with their complaints is prohibited. The person to whom a seafarer lodged a complaint must ensure the confidentiality of the source of the complaint. Article 97 specifies that a complaint may be lodged by a seafarer personally, through an authorised person, or a representative of ship’s crew if one is delegated. A seafarer can lodge a complaint to his/her immediate superior or to the ship’s master. The seafarer’s immediate superior shall examine the complaint forthwith. If the decision on the complaint by the immediate superior is not satisfactory to the seafarer, he/she shall be entitled to lodge a complaint to the ship’s master. The ship’s master shall examine the complaint within 14 days from the date of receipt. If settlement of the complaint on the ship is impossible, the ship’s master shall immediately forward the complaint to the shipowner. The shipowner shall examine the complaint within 30 days from the date of receipt. Records of complaints shall be kept on ship (Article 98). Regardless of the seafarer’s right to lodge a complaint to his/her immediate superior or to the ship’s master, the seafarer may also lodge a complaint to the inspection authority in the port at which the ship calls, and to the employment agency through which the seafarer was employed on the ship. When a seafarer lodges a complaint to the inspection authority, the inspector from the flag state inspectorate shall take action with a view to initial assessment of the complaint. The inspector from the flag

Ibidem, Section 5.1.3 and 5.1.4. Ibidem, Regulation 5.1.5. Compliance with and Enforcement... 253 state inspectorate shall not disclose that the inspection is carried out as a result of the complaint. The preliminary assessment of a complaint shall, depending on its nature, include verifying whether complaint procedures provided for in the MLC 2006 had been applied on the ship. The inspector from the flag state inspectorate shall make every effort to examine the complaint on board the ship. If a complaint is not resolved on the ship and the ship’s master fails to forward the complaint to the shipowner in accordance with Article 97(6), the inspection authority shall immediately inform the shipowner, specifying the time limit for the shipowner’s response and provision of a corrective action plan. If it is not possible to resolve a complaint as a result of the measures taken in accordance with Paragraph 6, the inspection authority may, by way of administrative decision, detain the ship in port and notify competent organisations of shipowners or seafarers, respectively, and the State Labour Inspectorate or the State Sanitary Inspection of the complaint. If a complaint is lodged with the employment agency, the agency shall explain the complaint with the shipowner, and if it is impossible to clarify the complaint, if it contains information referred to in Article 24(1)(1) or (3), the agency shall notify the director of the maritime office. The director of the maritime office shall check how the employment agency explains the complaints lodged by seafarers during the audits referred to in Article 18(4) and (5).

3. MLC INSPECTIONS

According to the Article 94(1) of the MLA 2015, a ship of a gross tonnage of at least 500 GT involved in international shipping or shipping between ports of another country must have a maritime labour certificate, and ships which are not obliged to have such a certificate but on the request of the owner have received it, shall be subject to the following inspections: − initial – carried out to obtain either the certificate or the interim certificate for the first time; − periodical – carried out to confirm the validity of the certificate between the second and the third anniversary date, referred to in Article 5(22) of the Act on Maritime Safety; − renewal – carried out in connection with the expiration of a certificate, in order to issue a new one, no later than 3 months before the expiration of the certificate; − ad hoc – carried out for an additional verification of the working and living conditions of seafarers on the ship. All of these inspections are carried out by the Flag State Control inspectors. So far the Polish maritime administration (i.e. the minister competent for the maritime

Most of the above provisions apply to the port State inspectors. These provisions are included in Article 56a of the Polish Act of 18 August 2011 on Maritime Safety (Official Journal 2016, Item 281). 254 Dorota Pyć economy) has not delegated its responsibilities and has not authorized any recognized organization to carry out, on its behalf, inspections or issue certificates. It is fully responsible for the inspection and certification of the working and living conditions of the seafarers concerned on ships that fly the Polish flag. In the case of the ad hoc inspections, when the results of the inspection are not satisfactory - which means that the working or living conditions of seafarers on the ship do not comply with the requirements of the provisions of the MLC 2006 as well as the MLA 2015 - the FSC inspector may, by way of an administrative decision, detain the ship in port.10

4. PENALTIES

According to Standard A5.1.4 (Inspection and enforcement) of the MLC 2006, which provides in its point 17 that “Adequate penalties and other corrective measures for breaches of the requirements of this Convention (including seafarers’ rights) and for obstructing inspectors in the performance of their duties shall be provided for and effectively enforced by each Member”, Article 110(2) point 3 of the Polish MLA 2015 states that a ship’s master who violates provisions on the examination of complaints with respect to work and life conditions of the seafarers on a ship shall be liable to a fine whose amount does not exceed 20 times the average salary in the national economy for the preceding year, as published by the President of the Central Statistical Office in the Official Journal of the Republic of Poland “Monitor Polski” for pension purposes. Moreover, Article 115 (1) of the MLA 2015 in its point 4 provides that whoever, being a shipowner or acting on the shipowner’s behalf, violates the provisions concerning procedures for examining seafarer’s complaints referred to in Article 97 and Article 99 shall be liable for a fine ranging from PLN 1,000 to PLN 30,000.

CONCLUSIONS

Under international law States are obliged to fulfil their international legal obligations laid down in the treaties to which they are parties. The elements of international maritime law influence the internal effect and application of international maritime labour law in domestic laws. International law, and international human rights in particular, play an important role at the national level and have a clear impact on the domestic law. There is also a vast and comprehensive literature on the relationship between international maritime law and human rights. This has important implications for all national authorities.

10 Article 57 (1) of the Act of 18 August 2011 on Maritime Safety [Ustawa o bezpieczeństwie mors- kim], Official Journal 2016, Item 281. Compliance with and Enforcement... 255

The implementation of the Maritime Labour Convention in national legislation was effected by the entry into force of the new Polish Act on Maritime Labour (MLA 2015) and the regulations issued on its basis. The Polish system for the inspection and certification of maritime labour conditions ensures that the working and living condition for seafarers on board Polish flagged ships are compliant with the standards of the MCL 2006, as well as that the national requirements will be compliant with and follow the measures laid down in the Declaration of Maritime Labour Compliance. Conse- quently, the MLA 2015 provides that complaints will be handled confidentially and analysed immediately according to an established on-board complaint procedure.

XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016m 2016 PL ISSN 0554-498X

Grzegorz Wierczyński*

The Polish practice regarding the promulgation of international agreements between 1945 and 2017

Abstract: This article presents the Polish practice of promulgation of international agreements since the end of World War II. It shows that the practice is at variance with the law and makes it difficult to determine the current legal situation vis-à-vis international agreements in Poland. In the conclusions the author puts forward de lege ferenda proposals which could improve the Polish promulgation practice.

Keywords: promulgation, international agreement, Polish practice, international law

Introduction

In Poland, promulgation is a prerequisite for a normative act to enter into force, a principle introduced in Poland over 500 years ago. For more than 200 years now, promulgation has been done by means of publication in official journals. As regards international agreements, two spheres must be distinguished. In terms of international law, the promulgation of an international agreement by the contracting parties is of secondary importance. Under Article 24 of the Vienna Convention on the Law of Treaties of 1969, “[a] treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.” In the Polish legal system, however, in order to become directly effective, in other words to have the capacity to confer rights and obligations derived from it on individuals, an international agreement must be officially promulgated. Therefore, while promulgation of an international

* Associate Professor, Faculty of Law and Administration, University of Gdańsk (Gdańsk, Poland). 1 See the constitution De constitutionibus novis per proclamationem publicandis, passed by the Sejm of the Kingdom of Poland on 3 May 1505. Journal of Laws (Dz. U.) of 1990, No. 74, Item 439. See e.g. A. Wyrozumska, Umowy międzynarodowe. Teoria i praktyka [International agreements. Theory and practice], Wydawnictwo Prawo i Praktyka Gospodarcza, Warszawa: 2006, pp. 563–566 and K. Dzia łocha in: L. Garlicki (ed.), Konstytucja Rzeczypospolitej Polskiej. Komentarz [Constitution of Poland. 258 Grzegorz Wierczyński agreement in Poland is not required to make it binding on the State, it does determine its effectiveness within the Polish legal system. The authors of the currently applicable Polish Constitution of 2 April 1997 took this distinction into account. Under the Constitution, proper promulgation is a prerequisite for the entry into force of acts of domestic law (statutes, regulations and enactments of local law). As regards international agreements, the Constitution only stipulates that “international agreements ratified with prior consent granted by statute shall be promulgated in accordance with the procedures required for statutes” and that “the principles of promulgation of other international agreements shall be specified by statute.” At the level of statutory law, in turn, the rules of promulgation of international agreements are not covered by the Act of 20 July 2000 on Promulgation of Normative Acts and Some Other Legal Acts and instead are regulated in the Act of 14 April 2000 on International Agreements and in the Regulation of the Council of Ministers of 28 August 2000 on the Implementation of Some Provisions of the Act on International Agreements. Pursuant to these laws, ratified international agreements, as well as related executive and amending agreements, are promulgated in the Journal of Laws of the Republic of Poland (Dziennik Ustaw Rzeczypospolitej Polskiej). Other agreements are promulgated in the Official Gazette of the Republic of Poland (Dzien- nik Urzędowy Rzeczypospolitej Polskiej Monitor Polski). Apart from these two official journals, information on the international agreements concluded by Poland can be found in the online database of treaties maintained by the Polish Ministry of Foreign Affairs: the Internet Treaty Base (Internetowa Baza Trakta- towa). While the database is incomplete, it nonetheless includes many more international agreements than those promulgated in the official journals.

1. Promulgation of international agreements in Poland between 1945 and 1989

During the communist period (1945–1989), international agreements were not considered legitimate sources of law, and the practice of publishing them in official journals illustrates this very well. The InternetT reaty Base contains 2561 international agreements concluded between 1945 and 1989, and only 862 of them were published in the Journal of Laws or in the OfficialG azette. This means that only 33 per cent of the international agreements concluded by the Polish People’s Republic were announced in the relevant official journals.

Commentary], vol. I, Wydawnictwo Sejmowe, Warszawa: 1999, commentary to Article 88 (p. 10) and to Article 91 (pp. 2-3). Journal of Laws (Dz. U.) of 1997, No. 78, Item 483, as amended. Journal of Laws (Dz. U.) of 2016, Item 296, as amended. Journal of Laws (Dz. U.) of 2000, No. 39, Item 443, as amended. Journal of Laws (Dz. U.) of 2000, No. 79, Item 891. Accessed 30 May 2017. The Polish Practice... 259

The Articles of Agreement of the International Bank forR econstruction and Devel- opment concluded in Bretton Woods on 22 July 1944 are a good example of the problems that result from this practice of promulgating only a few selected international agreements. The Polish authorities ratified the Articles of Agreement on 24 February 1946. The act of ratification and the text of the agreement were published in the Jour- nal of Laws, alongside a relevant government statement.10 In 1950, Poland withdrew from the International Bank for Reconstruction and Development, and again a relevant government statement was published in the Journal of Laws.11 In 1986, Poland once again became party to the Articles of Agreement of the International Bank for Recon- struction and Development, but no information of this fact was published in any of the Polish official journals. Furthermore, no amendments to the said agreement were ever promulgated. Official information would therefore suggest that Poland is not party to the agreement in question. And even if one was to learn from some other sources that Poland has in fact rejoined it, the Polish official journals do not contain the current version of the provisions in force; therefore, one can only access the original, outdated version.

2. Promulgation of international agreements in Poland after 1989

After 1989, there was generally some improvement in the Polish practice of promulgating international agreements. There were even attempts to make up for some of the neglect in the previous period. For example, the agreement between the governments of the Polish People’s Republic and the Hungarian People’s Republic on international road transport, concluded in Budapest on 18 July 1965, was promulgated in the Of- ficial Gazette in 2003.12 The InternetT reaty Base contains 2262 international agreements concluded after 1 January 1990, but only 1448 of them (64%) were published in the Journal of Laws or in the Official Gazette.13 While this constitutes a substantial improvement compared to the previous period, in terms of what is actually required by the applicable law this practice should be subjected to criticism. Among the agreements that have never been promulgated, there is a significant group of agreements concerning the binding force of the existing international agreements. Generally speaking, the majority of these agreements were concluded in the 1990s, but only a very small number of them were properly promulgated. A major example of such non-promulgated agreements would be the one concluded by the governments

Journal of Laws (Dz. U.) of 1948, No. 40, Item 292. 10 Journal of Laws (Dz. U.) of 1948, No. 40, Item 293. 11 Journal of Laws (Dz. U.) of 1950, No. 23, Item 207. 12 OfficialG azette of 2003, No. 4, Item 36. 13 Accessed 30 May 2017. 260 Grzegorz Wierczyński of Poland and Germany on the expiry of the international agreements between Poland and the German Democratic Republic. This agreement was signed in connection with Article 12 of the Treaty on the Final Settlement with Respect to Germany (between the Federal Republic of Germany and the German Democratic Republic, France, the Soviet Union, the United Kingdom and the United States; so called the Two Plus Four Agreement). In the former agreement, the two parties declared that 114 agreements between Poland and the German Democratic Republic expired, and subsequent agreements added another 10 prior agreements to that number. A dozen or so of these rescinded agreements had been promulgated in the Journal of Laws,14 but the relevant rescinding agreements were not promulgated in any official journal in Poland. For some unknown reason they are not even available in the Polish Internet Treaty Base, while Germany, in turn, has published these agreements in the relevant edition of its own official journal – theBundesgesetzblatt .15 Shortly after the unification of Germany, another of Poland’s neighbours, namely Czechoslovakia, split into two independent countries. This development was naturally accompanied by negotiations concerning the validity of existing international agreements signed by Czechoslovakia. The protocol of 29 March 1996 on the succession of bilateral agreements and the revision of the system of treaties between Poland and the Czech Republic, concluded by the governments of Poland and the Czech Republic, rescinded 11 agreements. This protocol however was not promulgated in any Polish official journal.16 The same is true of the protocol of 8 July 1993 concluded by the governments of Poland and Slovakia on the validity of bilateral international agreements between Poland (Republic of Poland, Polish People’s Republic) and Czechoslovakia (Czechoslovak Republic, Czechoslovak Socialist Republic, Czech and Slovak Federal Republic) between 1918 and 1992 in the relations between the two countries,17 under which 15 agreements concluded by Poland and Czechoslovakia were dissolved with respect to relations between Poland and Slovakia.

14 Including, for example, the Agreement between the Polish People’s Republic and the German Democratic Republic on legal proceedings in civil, family and criminal matters, signed in Warsaw on 1 February 1957, Journal of Laws (Dz.U.) of 1958, No. 27, Item 114. 15 See Bekanntmachung über das Erlöschen völkerrechtlicher Übereinkünfte der Deutschen Demokratischen Republik mit Polen vom: 21. Juni 1993, Bundesgesetzblatt Teil II of 1993, p. 1180; Bekanntmachung über das Erlöschen völkerrechtlicher Übereinkünfte der Deutschen Demokratischen Republik mit Polen vom: 16. Dezember 1993, Bundesgesetzblatt Teil II of 1994, pp. 249, 320; 15. April 1994, Bundesgesetzblatt Teil II of 1994, p. 725; 16. Februar 1995, Bundesgesetzblatt Teil II of 1995, p. 322; Bekanntmachung der deut- sch-polnischen Vereinbarung über das Außerkrafttreten der Vereinbarung mit der Deutschen Demokratischen Republik über die gegenseitige Verleihung von Nutzungsrechten an Grundstücken zum Zwecke der Errichtung von Gebäuden für Generalkonsulate beider Staaten vom 6. Januar 1998, Bundesgesetzblatt Teil II of 1998, p. 101; and Bekanntmachung über das Außerkrafttreten völkerrechtlicher Übereinkünfte der Deutschen Demokratischen Republik mit Polen vom 5.August 1998, Bundesgesetzblatt Teil II of 1998, p. 2596. 16 The protocol is available in the Internet Treaty Base (https://traktaty.msz.gov.pl/getFile.php?action =getfile;0&iddok=6859; accessed 30 May 2017). 17 Available at: https://traktaty.msz.gov.pl/getFile.php?action=getfile;0&iddok=7705 (accessed 30 May 2017). The Polish Practice... 261

In the first half of the 1990s, similar agreements were also concluded with China18 and Mongolia,19 and these were also not promulgated in any Polish official journal. One of the few examples of the proper promulgation of such agreements is the agreement between Poland and Latvia concerning the bilateral agreements of 1922– 1938, concluded in Warsaw on 10 February 1997, which was in fact promulgated in the Journal of Laws.20 Another large group of agreements of this type are those concluded with the countries which emerged after the dissolution of Yugoslavia. The agreements concluded during the first period, in the 1990s, were not promulgated in any Polish official journal, and include, inter alia: − Agreement of 1 March 1995 on succession in the relations between Poland and Slovenia of the bilateral agreements concluded by Yugoslavia and Poland between 1922 and 1991,21 which upheld 17 agreements and rescinded 7; − Agreement of 13 April 1995 between Poland and Croatia on succession of bilateral agreements,22 which upheld 18 agreements and rescinded 4; − Agreement of 15 November 1996 between Poland and the government of Yugo- slavia (presently the Republic of Serbia) on the agreements that remain in force,23 which upheld 23 agreements. The agreements concluded during the next period (2006 – 2009) were promulgated and include, inter alia: − Agreement between the government of Poland and the Council of Ministers of Bosnia and Herzegovina on the legal succession of Bosnia and Herzegovina with regard to the agreements concluded between Poland and the Socialist Federal Re- public of Yugoslavia, signed in Sarajevo on 22 December 2006;24 − Agreement between Poland and the Republic of Macedonia regulating bilateral treaty relations, signed in Warsaw on 9 May 2007;25 − Agreement between Poland and Montenegro regulating bilateral treaty relations, concluded in Podgorica on 23 April 2009.26

18 See the Agreement between Poland and the People’s Republic of China on the revision of the bilateral agreements concluded before 31 December 1993, which rescinded 4 agreements between the two countries (available at: https://traktaty.msz.gov.pl/getFile.php?action=getfile;0&iddok=13918; accessed 30 May 2017). 19 See the Agreement between Poland and Mongolia on the validity of agreements concluded by Poland and Mongolia between 1954 and 1994, which rescinded 7 agreements (available at: https://traktaty.msz.gov.pl/getFile.php?action=getfile;0&iddok=7314, accessed 30 May 2017). 20 Journal of Laws (Dz.U.) No. 127, Item 819. 21 Available at: https://traktaty.msz.gov.pl/getFile.php?action=getfile;0&iddok=7796 (accessed 30 May 2017). 22 Available at: https://traktaty.msz.gov.pl/getFile.php?action=getfile;0&iddok=17640 (accessed 30 May 2017). 23 The agreement is available in the InternetT reaty Base, but for unknown reasons it is in the database of archival agreements (https://traktaty.msz.gov.pl/getFile.php?action=getfile;2&iddok=7234; accessed 30 May 2017). 24 OfficialG azette of 2008, No. 52, Item 462. 25 Journal of Laws (Dz.U.) of 2009 No. 27, Item 163. 26 OfficialG azette of 2011, No. 74, Item 739. 262 Grzegorz Wierczyński

The last large group of agreements concerning the validity of earlier agreements were those concluded as part of the process of preparation for Poland’s accession to the Euro- pean Union. Here we can clearly see the lack of consistency in the activity of the Polish Ministry of Foreign Affairs: the agreements between Poland and the Czech Republic27 and between Poland and Lithuania28 were not promulgated in any official journal in Poland, while a similar agreement between Poland and Slovakia29 was promulgated. The following case of an Armenian citizen staying in Poland in the late 1990s provides an excellent example of the problems that may arise from the lack of generally available information on the loss of binding force of an international agreement. Un- til the dissolution of the Soviet Union, citizens of Armenia coming to Poland did so under an agreement between the Polish People’s Republic and the Soviet Union on visa-free travel for citizens of both countries, signed on 13 December 1979 in War- saw.30 In June 1997, the embassy of the Republic of Armenia in Moscow sent a note to the Polish embassy in Moscow stating that Armenia did not consider itself a suc- cessor of the former Soviet Union in international relations. In April 1999, the Pol- ish embassy responded by acknowledging the declaration. In this way the agreement on visa-free travel was deemed to have expired in the relations between Poland and Armenia. Based on this state of affairs, one of the voivodes issued a decision on the deportation of Ms Karina G., a citizen of the Republic of Armenia, and the decision was upheld by the Minister of Internal Affairs and Administration. However the Supreme Admin- istrative Court of Poland revoked both decisions, arguing31 that public announcement, in a manner prescribed by law, of information on the content of a government statement concerning the loss of binding force of an international agreement is the basic prerequisite of a democratic state governed by the rule of law, the condition of its applicability and the fundamental requirement for determining whether a foreign citizen legally resides in the territory of the Republic of Poland. The Court emphasised that both at the time the contested decision was issued and at the time of the hearing, no information on the loss of binding force of the said agree-

27 See the agreement in the form of diplomatic notes exchanged by the governments of Poland and the Czech Republic on the expiry of the agreements listed in the appendix to these notes, under which 6 agreements concluded by Poland and the Czech Republic and Czechoslovakia were rescinded (available at: https://traktaty.msz.gov.pl/getFile.php?action=getfile;0&iddok=15634; accessed 30 May 2017). 28 See the agreement in the form of diplomatic notes exchanged by the governments of Poland and Lithuania on the expiry of the agreements listed in the appendix on the day of Poland and Lithuania’s accession to the European Union (available at: https://traktaty.msz.gov.pl/getFile.php?action=getfile;0&id dok=14503; accessed 30 May 2017). 29 See the agreement between Poland and Slovakia on the expiry of some agreements concluded by Poland and Slovakia, Official Gazette of 2004, No. 21, Item 370. 30 Journal of Laws (Dz.U.) of 1980, No. 13, Item 41. 31 Judgement of the Supreme Administrative Court of Poland of 7 December 1999, V SA 726/99, Central Database of Administrative Court Rulings (available at: http://orzeczenia.nsa.gov.pl/doc/ 9C76AC5ACC; accessed 30 May 2017). The Polish Practice... 263 ment on visa-free travel in relations between Poland and Armenia had been published, and therefore the decisions on deportation lacked a valid legal basis. The relevant information on the rescission of the agreement was only published in the Journal of Laws as late as over a year after this judgement.32 The above-discussed judgement thus caused the authorities to realize that it was necessary to terminate certain agreements in the relations with countries that actually were successors to the above-mentioned 1979 international agreement concluded with the Soviet Union. As a result, agreements were terminated with Azerbaijan,33 Georgia,34 Kirghizstan,35 Tajikistan,36 Turkmenistan37 and Kazakhstan.38 In the relations between Poland and the Russian Federation, the agreement was rescinded on 1 October 2003 under Article 21 Section 2 of the Agreement between Poland and Russia on the conditions of travel of Polish and Russian citizens, signed in Warsaw on 18 September 2003.39 In the relations with Ukraine, the agreement was rescinded under Article 15 of the Polish–Ukrainian agreement on visa-free travel of 25 June 1996.40 The latter was not promulgated in any Polish official journal, and there is also no information on -re scission of the agreement in question in the relations with Belarus.41 Another fairly common infringement on the binding provisions concerning the promulgation of international agreements is that these agreements are often promulgated only when they have already entered into force. The promulgation of the Con- vention on Mutual Assistance in Criminal Matters between the Member States of the European Union, concluded in Brussels on of 29 May 2000, and a protocol to this Convention, concluded in Luxembourg on 16 October 2001, is good example of such belated publication. The President of Poland ratified the Convention and the protocol to it on 11 June 2005, and they became binding for Poland on 26 October 2005, but

32 See the government statement of 7 February 2001, Journal of Laws (Dz. U.) of 2001, No. 15, Item 156. 33 See the government statement of 9 October 2000, Journal of Laws (Dz. U.) of 2000, No. 87, Item 978. 34 See the government statement of 9 October 2000, Journal of Laws (Dz. U.) of 2000, No. 87, Item 979. 35 See the government statement of 9 October 2000, Journal of Laws (Dz. U.) of 2000, No. 87, Item 980. 36 See the government statement of 9 October 2000, Journal of Laws (Dz. U.) of 2000, No. 87, Item 981. 37 See the government statement of 9 October 2000, Journal of Laws (Dz. U.) of 2000, No. 87, Item 982. 38 See the government statement of 7 February 2001, Journal of Laws (Dz. U.) of 2001, No. 15, Item 157. 39 OfficialG azette of 2003, No. 51, Item 800. 40 Available at: https://traktaty.msz.gov.pl/getFile.php?action=getfile;2&iddok=7981 (accessed 30 May 2017). 41 The Agreement between the Government of the Republic of Poland and the Government of the Republic of Belarus on individual traffic, signed in Minsk on 26 August 2003 (Official Gazette of 2003, No. 49, Item 754), does not affect previous agreements. 264 Grzegorz Wierczyński they were promulgated in the Journal of Laws only on 27 July 2007.42 As a result, for two years the agreement was not applied in Poland because it had not been properly promulgated. Such delays constitute violations of international commitments and thus of Article 9 of the Polish Constitution, according to which: “[t]he Republic of Poland shall respect international law binding upon it.” Another group of irregularities in the promulgation of international agreements in Poland are the shortcomings regarding information on the scope of application of a given agreement between individual countries. For example, as regards the Rome Statute of the International Criminal Court, adopted in Rome on 17 July 1998, the only information published in Poland was that of the parties to this agreement (and the declarations made by them) as of July 2002. At that time, 76 countries participated in the agreement. Information on the accession of additional countries has not been promulgated in the Polish official journals. Failing to promulgate information on the ratification or termination of an international agreement, as well as failing to publish information on the reservations and objections submitted by each country, has led to a situation in which official journals cannot be used as a basis to correctly determine the scope of application of an international agreement. When analysing the contemporary practice of promulgation of international agreements in Poland, yet one more technical problem needs to be highlighted. Since 1 Janu- ary 2012, Polish official journals (including the Journal of Laws and the OfficialG azette) are published in electronic form. The aforementioned Act of 14 April 2000 on Interna- tional Agreements stipulates, however, that it is the original document in printed form that constitutes the basis for the promulgation of an international agreement, together with the relevant government statements and, if necessary, a translation into Polish. The editors of the Journal of Laws and the Official Gazette implement this provision by publishing international agreements in the form of image files instead of text files. The texts of documents published in this form cannot, however, be read automatically, which means that they are not indexed by Internet browsers and that specialised software for the blind cannot read them either. It is rather paradoxical that this is also how Poland promulgated the Convention on the Rights of Persons with Disabilities, adopted by the United Nations in New York on 13 December 2006,43 which in Article 49 clearly states: “[t]he text of the present Convention shall be made available in accessible formats.”

Conclusions de lege ferenda

The findings presented above lead to the conclusion that the Polish practice of promulgating international agreements is in many cases at variance with the binding legal standards. The provisions concerning the promulgation of international agreements

42 Journal of Laws (Dz. U.) of 2007, No. 135, Item 950. 43 Journal of Laws (Dz. U.) of 2012, Item 1169 (see http://dziennikustaw.gov.pl/du/2012/1169/ D2012000116901.pdf; accessed 30 May 2017). The Polish Practice... 265 quoted in the introduction to this paper make it clear that the relevant bodies of government administration are required to promulgate international agreements. Promul- gation of a ratified international agreement in the Journal of Laws takes place upon the order of the President, and promulgation of other agreements in the Journal of Laws is ordered by the President upon request of the Minister of Foreign Affairs. In these cases the law does not provide for any exceptions to the requirement of promulgating an international agreement. Publication of other international agreements (in the Official Gazette) is ordered by the Prime Minister upon request of the minister heading the relevant branch of government administration. In this case, the law provides for an exception: in exceptional circumstances and for reasons related to a significant state interest, especially to national defence or security of the state and its people, the Prime Minister may, upon request of the relevant minister, refrain from promulgating the agreement in question in the Official Gazette. What follows from the cited provisions is that the original responsibility for performing the obligation of promulgating an international agreement lies with the Presi- dent (for ratified international agreements) or the relevant minister (in other cases). The President executes this duty by ordering the promulgation of the given agreement in the Journal of Laws. The ministers, in turn, either send a request for promulgation to the President or Prime Minister or a request to refrain from promulgation. From this moment on, the responsibility for the promulgation rests with the President or the Prime Minister, who perform their obligation by issuing a directive ordering the promulgation of a given agreement (or a directive on refraining from promulgation). Once the directive is issued, the responsibility for the promulgation of the document rests with the government body that issues the relevant official journal (for both the Journal of Laws and the Official Gazette the Prime Minister is the relevant authority). The available reasons for refraining from promulgation of an international agreement should be set out in more details, for example by providing reference to provisions on the protection of confidential information. Other than that the applicable laws properly define the responsibility for the promulgation of international agreements. The problem is therefore in the enforcement of these provisions. In this respect, there is a gap in Polish law. Promulgation of international agreements has been entrusted to the government administration, but the law does not provide for any procedure for filing a complaint with an administrative court concerning an administrative body’s failure to act. The Supreme Administrative Court of Poland ruled on one occasion that promulgation of an international agreement belongs to the category of public administration acts and activities to which an action for failure to act applies,44 but the dominant position is that this is not the case.45 A de lege ferenda proposal should therefore be put

44 The Judgement of the Supreme Administrative Court of Poland of 29 May 2003, II SAB 419/02 (available at: http://orzeczenia.nsa.gov.pl/doc/5242B6E8FA; accessed 30 May 2017). 45 See the judgments of the Supreme Administrative Court of Poland of 16 September 2004, OSK 247/04 (http://orzeczenia.nsa.gov.pl/doc/F0222759F3) and OSK 250/04 (http://orzeczenia.nsa.gov.pl/ doc/5C65FECB25; both accessed 30 May 2017). 266 Grzegorz Wierczyński forward to include in the applicable laws a procedure for filing complaints with the administrative court concerning a failure to act by public administration with regard to the obligation to promulgate international agreements. A de lege ferenda proposal should also be put forward with regard to the technical issue described in the final part of this study. Both the provision under which only the original document in printed form is the basis for the promulgation of an international agreement as well as the promulgation practice in Poland should be changed – the Pol- ish language versions of international agreements should be promulgated in the same format as all the other normative acts. XXXVi POLISH Yearbook of international law DOI 10.7420/pyil2016n 2016 PL ISSN 0554-498X

Agata Kleczkowska*

Judgment of the Supreme Court, dated 17 February 2016 (Ref. no. WA 16/15)

Abstract: In its Judgment of 17 February 2016, the Polish Supreme Court adjudicated the case of Polish soldiers accused of crimes committed in the village of Nangar Khel in Afghanistan in 2007. Ultimately, the Supreme Court found that Polish soldiers were guilty of, inter alia, breach of Article 318 of the Polish Penal Code, which stipulates that a soldier commits a crime even when executing an order if he is aware of this crime. However, the part of the judgment devoted to the problem of unlawful orders is very limited and almost completely lacks references to international law. The Supreme Court could have referred to a number of international legal acts, starting from the beginning of 20th century and up to the more recent regulations, including those in the Rome Statute. Moreover, the Supreme Court did not use international case law. As a result, the argumentation of the Supreme Court should be assessed as limited and unconvincing.

Keywords: blind bayonets, international criminal law, Penal Code, Polish Supreme Court, unlawful order

1. Thesis

Article 318 of the Polish Penal Code (PPC) does not completely exempt a soldier from criminal liability when he is executing orders. Instead, an exception to this general exemption takes place when the soldier, while executing the order, intentionally commits a crime. The Polish legislator did not recognize the theory of “blind bayonets”, which refers to the necessity for soldiers to execute superiors’ orders under any circumstances, regardless of their lawfulness.

* Ph.D. candidate, Institute of Law Studies of the Polish Academy of Sciences, Warsaw (Poland). 1 The Judgment in Polish is available at: http://www.sn.pl/sites/orzecznictwo/Orzeczenia3/WA%2016- 15.pdf (Polish Supreme Court judgment) (accessed 30 May 2017). 268 Agata Kleczkowska

2. Factual Background

The Polish Supreme Court judgment concerns events which took place in Nangar Khel, an Afghan village, during the period when the Polish Armed Forces were sta- tioned in Afghanistan. On 17 August 2007, a subdivision of the Polish Army, under the command of sub-lieutenant Ł.B., received orders from major O.C. The orders in- structed the soldiers to go to a place where one of the Polish military vehicles was attacked in order to reinforce the Polish and American soldiers who were close to Nangar Khel; to search the nearby hills where the attackers could have been hidden; and in case of danger, to engage in combat with the attackers and if necessary to use mortar fire. Consequently, as the order clearly defined the tasks of the subdivision under the command of sub-lieutenant Ł.B., it was not allowed to shell objects and could use mortar only in the event of a direct threat. However, when the soldiers arrived in the area near Nanghar Khel, they opened mortar fire against buildings in the village, without previous reconnaissance, in a situation wherein they did not face any direct danger. Warrant officer A.O. ordered staff sergeantT .B. to open fire using mortars, andT .B. followed this order by commissioning this task to the personnel responsible for the mortars. In the meantime, sub-lieutenant Ł.B., of the highest rank in the group, who was aware of the illegal action of his subordinates, neither reacted to the situation nor changed the order, even though under Polish law he could have done so. As a result of the shelling, six civilians were killed and several others were seriously injured. In addition to the factual background, the procedural history of this case needs to be briefly summarized as well. Initially the case was adjudicated by the Military Cir- cuit Court in Warsaw in 2011, which acquitted all defendants. Because the Prosecutor appealed the judgment, the case was moved to the Military Chamber of the Supreme Court, which decided that the case required partial re-examination in the Military Cir- cuit Court. As a result, the Military Circuit Court decided, in 2015, that the soldiers had failed to properly execute the order which they received. The Military Chamber of the Supreme Court in 2016 upheld this position in the Judgment discussed herein.

3. Supreme Court’s reasoning

In its reasoning, the Supreme Court did not elaborate much on the thesis of the Circuit Court judgment concerning unlawful orders. It mostly reiterated it, pointing out again that Article 318 of the PPC does not always exempt a soldier from criminal liability when the soldier is following orders. An exception takes place when the soldier intentionally commits a crime. According to the Supreme Court, that was the case of the subdivision under the command of sub-lieutenant Ł.B. This result was based on the fact that under Polish law the so-called “blind bayonets” theory is not

Ibidem, paras. 37-40. Judgment of the Supreme Court... 269 recognized. This theory refers to the rule that a soldier is obliged to follow a superior’s order in any circumstances, regardless of whether the order is lawful or not. The Court also referred to the previous Supreme Court judgment of 14 March 2011, issued in this same case. In the earlier judgment, the Supreme Court referred to the General Regula- tion of the Armed Forces of the Republic of Poland, which includes the obligation to follow orders by subordinates. Consequently, the Supreme Court came to the conclusion that if the soldiers are convinced that it is absolutely necessary to follow orders, and they are not aware of the fact that following orders would amount to a crime, they have not committed a crime. The Supreme Court also referred to international legal regulations while discussing the charges against the defendants, that is Article 23(b) and Article 25 of the Regula- tions concerning the Laws and Customs of War on Land; Article 3(1)(a) of the Fourth Geneva Convention relating to the Protection of Civilian Persons in Time of War; as well as Article 4(2)(a) and Article 13(1) and (2) of the Protocol Additional II to the Geneva Conventions. However, the Supreme Court did not elaborate more on these

Ibidem, para. 49. Decyzja Nr 445/MON z dnia 30 grudnia 2013 r. w sprawie wprowadzenia do użytku Regulaminu Ogólnego Sił Zbrojnych Rzeczypospolitej Polskiej, Dziennik Urzędowy Ministra Obrony Narodowej, 2013.12.30, poz. 398. – załącznik [Decision No. 445/MON of December 30, 2013, Official Journal of the Minister of National Defense, 2013.12.30, item 398. – annex]. Polish Supreme Court judgment, para. 2. Article 23(b) provides “[i]n addition to the prohibitions provided by special Conventions, it is especially forbidden (…) (b) to kill or wound treacherously individuals belonging to the hostile nation or army; Article 25: “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.” International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, available at: http://www.refworld.org/docid/4374cae64.html (accessed 30 May 2017). Article 3(1)(a): “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (…) (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” The Geneva Conventions of August 12, 1949, International Committee of the Red Cross, Geneva, pp. 153-221. Article 4(2)(a): “Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever: (a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment.” Article 13(1): “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances.” Art. 13(2): “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian popula- 270 Agata Kleczkowska regulations, nor did it mention any international legal regulations specifically concerning unlawful orders.

4. Discussion of the Court’s reasoning

Taking into account the issue of the regulation of acts of international humanitarian law (IHL) enumerated in the charges against the defendants, the Court seems to have acknowledged that the alleged crimes it was adjudicating were committed in the course of a non-international armed conflict, although it did not make such a clear statement. However, despite such findings the Supreme Court referred only to the PPC and did not discuss any international legal regulations concerning unlawful orders. Moreover, the Court did not elaborate more on the theory of “blind bayonets”. It would seem that such references were necessary, not only because of the argument that the international legal rules concerning the unlawful orders form a customary norm, but also because of the long history of international regulations with regard to unlawful orders. Conse- quently, since the Supreme Court was ruling on alleged crimes committed during an armed conflict, regulated by IHL, it should have discussed these issues and related its conclusions with regard thereto to the case before it. Article 318 of the PPC states that “A member of the armed forces who commits a prohibited act in carrying out an order does not commit an offence unless, while carrying out the order, he commits an offence intentionally.” Thus the only element which constitutes an exception to the exculpation of guilt is the soldier’s awareness that the execution of the order would amount to a crime. In other words, if the soldier receives the order and is convinced that the order is lawful, but nevertheless, by executing it he commits a crime, he makes an error facti, since he considered that the consequences of the execution of the order would not result in the commission of a crime. This reasoning is meant to apply to a specific situation whereby a soldier receives the order and does not have the opportunity to analyze whether following it would amount to the crime or not, but acts in obedience to the superior who issued the order.10 At the same time, when a soldier recognizes that the order is a crime, he should refuse to execute it, since the PPC does not require absolute obedience under such circumstances. This is so because, as the Supreme Court rightly observed, Article 318 of the PPC tion, are prohibited.” International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609, available at: http://www.refworld.org/docid/3ae6b37f40. html (accessed 30 May 2017). Translation after: International Committee of the Red Cross, Practice Relating to Rule 155. Defence of Superior Orders, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule155 (accessed 30 May 2017). 10 D. Szeleszczuk, Artykuł 318 [Article 318], in” A. Grześkowiak, K. Wiak (eds.), Kodeks karny. Komentarz [Penal Code. Commentary], CH Beck, Warszawa: 2016, p. 1286. Judgment of the Supreme Court... 271 does not support the theory of blind bayonets (i.e., “silent bayonets”, or passive obedience). The theory of blind bayonets is the oldest doctrine concerning the issue of soldier’s obedience to the orders of superiors, and assumes an absolute obedience of orders, regardless of their content. Under this doctrine, a soldier is not entitled to assess the legality or legitimacy of the order but needs to “blindly” comply with it. The theory assumes that military discipline is a supreme value, which soldiers are required to adhere to in all circumstances. What’s more, it is based on the assumption that a superior’s order cannot infringe legal rules. The “blind bayonets” theory was used mainly in cases of crimes committed by totalitarian regimes, where the assumption was made that the soldier was not permitted to think independently, and he was considered to be only a tool in hands of his superiors.11 An example of this can be seen in the disciplinary regulations of the Soviet Red Army, pursuant to which, “a superior’s order constitutes a law for the subordinate; the order should be carried out without reservations and on time. Failure to carry out the order constitutes a crime.”12 Taking into account the state of Polish regulations in this respect, one can say that they rather follow the theory of “thinking bayonets”, which assumes that the soldier, as an intelligent human being, may assess the legality of the order and in extreme cases refuse to execute it.13 National case law from different States has dealt with the problem whether an order was lawful or not for over a century. One can mention, inter alia, the case of Lieuten- ants Dithmar and Boldt, adjudicated by the Second Criminal Senate of the Imperial Court of Justice, which was ruling on the alleged war crimes committed during the First World War. The trial concerned the case of an attack against a ship hospital and its sailors. In its judgment, the Court came to the conclusion that a subordinate (…) is liable to punishment, if it was known to him that the order of the superior involved the infringement of civil or military law. (…) It is certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law.14 Next worthy of mention are the Nuremberg Trials, before the International Military Tribunal in Nuremberg, which adjudicated the cases of the major war criminals. As the

11 K. Smolarek, Analiza historyczno-prawna wyłączenia odpowiedzialności karnej podwładnego działa- jącego na rozkaz przełożonego w prawie karnym [Historic and legal analysis of the exemption from criminal liability of a subordinate acting upon a superior’s order in criminal law], 2(168) Zeszyty Naukowe Wyższej Szkoły Oficerskiej Wojsk Lądowych 57 (2013); M. van Vordeen, Rozkaz wojskowy jako instytucja prawa karnego: podstawowe zagadnienia [Military orders as an institution of the criminal law - fundamental issues], 23 Studia Prawnoustrojowe 56 (2014), p. 67. 12 K. Karski, The Katyn Crime under Nuremberg Principles, in: M. B. Szonert (ed.), Katyn: State- Sponsored Extermination, Libra Institute, Cleveland: 2012, p. 29. 13 van Vordeen, supra note 11, p. 67. 14 German War Trials: Judgment in the Case of Lieutenants Dithmar and Boldt: Hospital Ship ‘Llandovery Castle’ Rendered July 16, 1921, 16(4) The American Journal of International Law 708 (1922), p. 722. 272 Agata Kleczkowska

Tribunal observed, most of the defendants claimed that in doing what they did they were actually acting under the orders of Hitler, and therefore could not be held responsible for the acts they committed in carrying out these orders.15 However, Article 8 of the Charter of the International Military Tribunal stated that: “The fact that the Defen- dant acted pursuant to an order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”16 This rule was also reiterated in the Nuremberg Principles.17 The Tribunal held that: “The provisions of this article are in conformity with the law of all nations”,18 based on the state of international legal regulations (and presumably of customary international law) in 1945. Moreover, it ruled that it “is not the existence of the order, but whether moral choice was in fact possible” which decides whether the superior’s order could constitute a mitigating circumstance.19 As a result, the Tribunal noted that many of the defendants “made a mockery of the soldier’s oath of obedience to military orders”, since they used the circumstances of a superior’s order as a tool for their defense, and not as a commitment which really influenced their behavior.20 TheT ribunal also observed that: “superior orders, even to a soldier, cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly, and without military excuse or justification.”21 When it comes to the more recent international legal regulations on unlawful orders, they can be divided into four groups. Firstly, some of these regulations exclude that exculpation from criminal liability is possible at all, regardless of whether the soldier acted intentionally or not. For example, Article 2 of the Convention against Torture,22 Article VIII of the Inter-American Convention on the Forced Disappearance of Persons,23 and Article 6(2) of the Convention on Enforced Disappearance24 all state that an order cannot justify the commitment of the offences stipulated by these conventions. Secondly, there are international legal acts which state that it does not matter whether or not the perpetrator was aware that the order would result in a crime, but nevertheless

15 Judgment in the Trial of the Major War Criminals before the International Military Tribunals, Nuremberg 14 November 1945 – 1 October 1946, Nuremberg 1947, p. 223 (Nuremberg Judgment). 16 D. Schindler, J. Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, Leiden/Boston: 1988, pp. 912-919. 17 Principle IV: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”, Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Yearbook of the International Law Commission, 1950, vol. II, para. 97. 18 Nuremberg Judgment, p. 223. 19 Ibidem, p. 224. 20 Ibidem, p. 278. 21 Ibidem, p. 291. 22 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85. 23 O.A.S. Treaty Series No. A-60. 24 International Convention for the Protection of All Persons from Enforced Disappearance, 2716 UNTS 3. Judgment of the Supreme Court... 273 the fact that he was following an order can be considered in mitigation of punishment. Such regulations are included in statutes of many international tribunals, for example the Special Tribunal for Lebanon (Article 3(3) of the Statute25), the Special Court for Sierra Leone (Article 6(4) of the Statute26), the International Criminal Tribunal for the former Yugoslavia (ICTY) (Article 7(4) of the Statute27) and the International Criminal Tribunal for Rwanda (Article 6(4) of the Statute28). Among this group of regulations, one should mention also Article 77(2) of the draft Additional Protocol I to the Geneva Conventions29 which contains a regulation similar to Article 318 of the PPC, since it states that [t]he mere fact of having acted pursuant to an order of an authority or a superior does not absolve an accused person from penal responsibility, if it be established that in the circumstances at the time he knew or should have known that he was committing a grave breach of the Conventions or of this Protocol. It may, however, be taken into account in mitigation of punishment. Moreover, as this group includes the majority of statutes of international criminal courts and tribunals, it is indispensable to refer at least to the Erdemović case, adjudicated by the ICTY, which is one of the most discussed cases concerning unlawful orders. Dražen Erdemović was a member of the 10th Sabotage Unit of the Bosnian Serbs Army when the massacre in the Pilica farm took place. He claimed that when he received orders to kill Bosnian Muslims transported to the farm, he initially refused to do so, but then he was threatened that he would be killed as well if he refused to carry out the orders. Consequently, at the end he executed the order, killing about 70-100 people in one day.30 Trial Chamber I decided that the criminal liability of the accused, taking into account the fact that he was following orders, should be assessed using the following criteria: the existence of any imminent physical danger that threatened the accused, the rank held by the soldier giving the order and by the one receiving it, as well as the circumstances surrounding how the order was given and how it was received.31 However, at the end of the trial Chamber I decided that the superior’s order did not constitute a mitigating circumstance in the

25 Statute of the Special Tribunal for Lebanon, S/RES/1757 (2007) – attachment. 26 Statute of the Special Court for Sierra Leone http://www.refworld.org/docid/3dda29f94.html (accessed 30 May 2017). 27 Updated Statute of the International Criminal Tribunal for the Former Yugoslavia http://www.icty. org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf (accessed 30 May 2017). 28 Statute of the International Criminal Tribunal for Rwanda (as last amended on 13 October 2006) http://www.refworld.org/docid/3ae6b3952c.html (accessed 30 May 2017). 29 Draft Additional Protocols to the Geneva Conventions of August 12, 1949, Commentary, Geneva 1973, p. 97. Ultimately, the regulation on the unlawful orders was not included in the final text of the Additional Protocol I. 30 The Prosecutor v. Drazen Erdemovic, Sentencing Judgment, 29 November 1996, Case IT-96-22-T, paras. 78, 80-81. 31 Ibidem, paras. 18-19. 274 Agata Kleczkowska

Erdemović case.32 When the case was remitted to Trial Chamber (The Appeal Chamber found that the guilty plea by Erdemović was not informed), Trial Chamber II again found that despite the fact that Erdemović was initially reluctant to execute the orders, in the end he used a Kalashnikov automatic rifle and continued to kill victims for most of the day. What’s more, the Tribunal took into account the magnitude of the crime and the scale of the accused’s role in it.33 The Tribunal also observed that, even though the accused was acting under duress, in similar morally difficult situations he discussed before the Tribunal he was nevertheless capable of taking positive actions.34 As a result, it can be concluded that the ICTY decided that the mode of committing the crime, his consent to do so, the general circumstances, as well as the possibility of making a moral choice should be taken into account when evaluating the mitigating circumstances of a crime committed in the execution of an illegal order. Thirdly, some international regulations refer to morality and a choice of conduct by a soldier. For instance, Principle IV of the Nuremberg Principles mentioned above states that the fact that the soldier followed an order does not relieve him of responsibility “provided a moral choice was in fact possible to him.”35 The International Law Commission Draft Code of Offences against the Peace and Security of Mankind refers to situations whereby “in the circumstances at the time, it was possible for him not to comply with that order” (Article 4).36 Finally, a majority of the international and national legal regulations introduce the element of a “manifestly unlawful” order as a criterion of assessment of a soldier’s conduct. The most important example of this group would be Article 33(1) of the ICC Statute,37 which states that: [t]he fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful.38

32 Ibidem, para. 111. 33 The Prosecutor v. Drazen Erdemovic, Sentencing Judgment, 5 March 1998, Case IT-96-22-Tbis, para. 15. 34 Ibidem, para. 17. 35 Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Yearbook of the International Law Commission 1950, vol. II, para. 97. 36 Draft Code of Offences against the Peace and Security of Mankind, Yearbook of the International Law Commission 1954, vol. II. 37 Rome Statute of the International Criminal Court, 2187 UNTS 3. 38 However, it should be noted that, despite the existence of such a regulation, until now the ICC has not applied it in any of its adjudicated cases, including in the situation in the Central African Republic in the Case of Prosecutor v. Jean-Pierre Bemba Gombo, which relates to the problem of the superior’s responsibility over his subordinates (Amicus Curiae Observations on Superior Responsibility Submitted Pursuant to Rule 103 of the Rules of Procedure and Evidence, 20 April 2009, ICC01/0501/08). Judgment of the Supreme Court... 275

Consequently, Article 33(1) combines the element of a “manifestly unlawful” order with the element stipulated by the PPC, i.e. the soldier’s awareness of the unlawful nature of the order.39 However, what does a “manifestly unlawful” order mean? The idea that it matters whether the order carried out was “manifestly unlawful” or not was applied for the first time by the Austrio-Hungarian Military Court in 1915, when it determined that a subordinate may be found liable for his action when following orders only when his behavior is “manifestly in conflict not only with criminal law but also with the customs of war of civilized peoples.”40 Even though the International Committee of the Red Cross (ICRC) summary on unlawful orders mentions at least several national legisla- tions and national court judgments which refer to “manifestly unlawful orders”, none of them elaborate what “manifestly unlawful” means, how it can be determined, and when the unlawfulness of an order is “manifest”. In its Rules on Customary Interna- tional Humanitarian Law, the ICRC reiterates this criterion (Rule 154), but again does not explain its meaning.41 At the same time, it is hard to determine the meaning of a “manifestly unlawful” order in the abstract, without reference to a specific situation or set of facts.42 Lauterpacht has pointed out that a manifestly unlawful order is one which should be “obvious to a person of ordinary understanding”.43 Moreover, one can argue that circumstances which the average person would not be aware of are irrelevant when assessing whether an order was plainly contrary to the legal order.44 At the same time, the “unlawfulness” should also refer to international law, not to the domestic legal orders, which implies that the unlawfulness needs to fall within an average person’s knowledge of international law.45 To sum up, the Supreme Court should have referred to the wide range of international legal acts and case law, starting from the early 20th century, in order to properly adjudicate the issue of the unlawful orders issued by Polish officers which prompted the massacre in Nangar Khel. While it is understandable that the Supreme Court referred first and foremost to the PPC regulation, nonetheless bearing in mind that the case concerned crimes committed during a non-international armed conflict, the Supreme Court could have referred at least to Additional Protocol II to the Geneva Conventions,

39 The summary of all international legal regulations on the unlawful orders can be found at: Practice Relating to Rule 155. Defence of Superior Orders, supra note 4. 40 P. Gaeta, The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law, 10 European Journal of International Law 172 (1999), p. 175. 41 ICRC, Rule 154, Obedience to Superior Orders, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule154 (accessed 30 May 2017). 42 G. D. Solis, The Law of Armed Conflicts: International Humanitarian Law inWar, Cambridge University Press, Cambridge: 2010, p. 359. 43 After: A. Zimmermann, Superior Orders, in: A. Cassese, P. Gaeta, J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Volume II, Oxford University Press, Oxford: 2002, p. 970. 44 Ibidem. 45 Ibidem. 276 Agata Kleczkowska which binds Poland, and consequently, the Polish armed forces as well. As a result, the Supreme Court’s judgment is very hermetic, and the argumentation used by the Su- preme Court is very limited. It is hard to assess whether a more profound reference to international law would have changed the final ruling of the Court in the Nangar Khel case, but bearing in mind that the Supreme Court adjudicated alleged crimes committed by the Polish Armed Forces in a foreign State and which breached international legal norms, this should have been sufficient reason for the Supreme Court to consider something more than just the Polish regulations. Thus, one can call for wider and more eloquent Supreme Court rulings in cases involving international law in the future, since not only Polish statutes, but also international legal norms are part of the Polish legal order as well.

XXXVi POLISH Yearbook of international law 2016 PL ISSN 0554-498X

William H. Boothby, Weapons Law and The Law of Armed Conflict (2nd ed.), Oxford University Press, Oxford: 2016, pp. 422

ISBN 978-0-19-872850-4

Modern battlefields, as well as our daily lives are gradually becoming filled and controlled by cutting edge and disruptive technologies. Contrary to previous trends, this time it is civil industry that is inspiring military research centres and diffusing novel technologies. While national governments are debating new laws regulating self-driving cars or unmanned aerial vehicles delivery, the most advanced armies of the world are acquiring and developing new technologies in order to bolster their military capability in modern asymmetric armed conflicts and in the war on terror. Even though a quick list of the most “interesting” innovations – including cyber attacks, “killer robots”, human enhancement and “invisibility cloaks” – can easily give rise to moral panic, one should be reassured that the legal framework is not leaving them in a regulatory vacuum. Despite the rather low speed of legal developments, especially international negotiations of new arms control treaties, the general principles of the international law of armed conflict continue to apply in a number of matters, offering tentative answers to questions such as: Is it legitimate to put a sign of equality between an armed attack and a computer network attack? Does it activate the right of a State to self-defence? Are so-called LAWS (lethal autonomous weapon systems) new to military commanders? Is it forbidden to take human life based solely on the result of an artificial intelligence decision? Can we translate legal norms into a computer code? Is giving narcotics to soldiers in order to enhance their strength acceptable? Is it possible that our air space is regularly disturbed by invisible aircraft? Can we modify human DNA and make a specific group of people extinct? These and more questions can and should not only be answered by the international community, but also discussed in open public debates, not in the context of science-fiction scenarios but in relation to the moral and legal standards that are in line with the public conscience of modern societies. Both in the cases of technological innovations as well as when it comes to classical military acquisition processes, decision-makers, engineers, and analysts are looking for a comprehensive study on weapons law, and perhaps surprisingly they do not have a lot of choices, because in spite of the long and rich history of this branch of international law, the scholarly book market contains few relevant works. It was only with the contribution of William H. Boothby that the existing knowledge on regulations relating to the means of warfare has been structured and framed into a comprehensive “Bible” of the law relating to weaponry, which has now lived to see its second edition in 2016. 280 Book review

The author is particularly well-placed to present the topic, given his thirty years of experience as a member of the Legal Branch of the Royal Air Force, retiring as its Deputy Director in 2011 with the rank of Air Commodore. What’s more, he also led the joint service team of lawyers at the Joint Doctrine and Concepts Centre in the United King- dom, which initiated and implemented the UK system for the legal review of weapons (described in Chapter 19 of his book). The nd2 edition of the book embraces the relevant changes in the law, technology and doctrine that have emerged over the past seven years. The most important update applies to new disruptive technologies and addresses the legal implications of technical developments in the fields of cyber weapons, remotely-controlled and autonomous weapon systems, electromagnetic microwave counter-IED weapons, nanotechnology, and metamaterials. Insofar as the notion of “weapons law” is not widely used or accepted by learned scholars, the author explains that only the relevant norms of the law of armed conflict are discussed, leaving aside arms control treaties, and therefore the focus is put on legal norms that “essentially prohibit certain weapons or associated technologies and restrict the circumstances in which other weapons or technologies may lawfully be used” (p. 3). Hence the title of the book: Weapons Law and The Law of Armed Conflict. The book is divided into 20 chapters which comprise a comprehensive analysis of all relevant factors, thus offering a “reference book” for a variety of audiences (negotiators, government officials, industry representatives, and also, albeit to a lesser extent, academics and students). The opening chapters 2, 3 and 4 on the evolution, components, and the use of weapons under the international law of weaponry and targeting provide a proper introduction to the topic. Given the small amount of literature which touches upon all aspects and perspectives of development of the law of weaponry, the author’s approach – to concisely review all the relevant, but perhaps not always crucial to the topic, notions of the law of armed conflict, as well as present the body of relevant treaties – is highly commendable. Thanks to this the reader becomes seamlessly embedded in the subject and can focus on the crucial substantive matters. Moreover, the introductory chapters reveal the author’s unique facility for explaining the most fundamental theoretical constructs in a highly intelligible way, thus providing readers with the requisite understanding of the legal framework. In his next three chapters, the author presents the leading customary principles of the law of weaponry: the superfluous injury and unnecessary suffering principle; the principle of discrimination; and the rules on environmental protection in armed conflicts. In this way the author underscores the importance of a correct understanding of the fundamental principles with respect to the legitimacy of a weapon per se, although not necessarily the legitimacy of its use. A reviewer of a weapon has to take into consideration the dangers arising from the “effect-based” assessments of the legality of weapon, as it is the “designed purpose” of a weapon, and not its “possible effects”, which should be reviewed in the context of the legal obligations of a State. Other- wise an ill-judged attack or a simple misuse of a perfectly legal weapon may lead to a Book review 281 false assumption concerning its legality. Moreover, the author meticulously points out barely noticeable linguistic discrepancies between different formulations of the same principles in international treaties (i.e. “calculated to cause” vs. “of a nature to cause”), and deftly depicts their consequences, not without invoking clever metaphors (i.e. the example of the barking dog on page 49). The following ten chapters are devoted to particular types of weapons: conventional weapons, poisoned weapons, biological and chemical weapons, firearms, bullets and analogous projectiles, mines and booby-traps, non-detectable fragments, incendiary weapons, laser weapons, nuclear weapons, missiles, blast weapons, directed energy weapons, herbicides, flechettes, depleted uranium, white phosphorus, non-lethal weapons, cyber weapons, remotely controlled weapon systems, automated and autonomous weapons, nanotechnology, metamaterials, cluster munitions, and maritime and outer space weapons. This lengthy enumeration well reflects the bulk of the book and the underpinning consideration that “there is no ‘shortcut’ to be achieved by the means of analogy argument” (p. 147). The author meticulously examines all the relevant treaties, as well as their amendments, and identifies the twists and possible pitfalls in their interpretation – starting from the travaux préparatoires until the adoption of the text. Having reference to the case of the United Kingdom, he discusses the relevant State statements on ratification and eventual reservations to finally outline their practical importance, reflected in military manuals and international jurisprudence (which are not always of a legal character but provide useful indicators of contemporary expert thinking). Rather than compiling a simple summary of the existing body of treaties, he focuses on the contents and significance of resulting legal norms. In addition, he quite appropriately uses footnotes to highlight practical examples and cases, allowing the reader to follow his impeccable legal analysis. Whenever possible, the author discusses relevant customary rules, carefully analysing the ICRC Report on Customary International Humanitarian Law, and underlines the need for revision of its wording, which sometimes generates incorrect conclusions, such as in the case of explosive bullets, where the criterion is formulated as “foreseeable use” instead of the “usual or normal effect of the weapon when used for its design purpose and in the designed or intended manner” (p. 137). By juxtaposing the customary rules with their treaty counterparts, the author rightly notes that even if the former are less restrictive, they attract near universal endorsement, which eventually proves their significance. In the last part of the book, the author deals with the law applicable in non-international armed conflicts, compliance issues, and with factors especially influencing this branch of law: technology and humanitarian concerns. Again, in a very concise and thoughtful way the author explains the incentives, multipliers, and facts which have a specific impact on weapon regulations. In doing so he voices the need for the balanced inclusion, in the process of political decision making, of clearly competing aspects, like

International Committee of the Red Cross (ICRC), Customary International Humanitarian Law, 2005, Volume I: Rules, available at:http://www.refworld.org/docid/5305e3de4.html (accessed 30 May 2017). 282 Book review military spending and humanitarian concerns or military necessity and the principle of humanity. Interestingly, by doing so he casts a shadow on generally praised actors (i.e. non-governmental organisations and campaigns), explaining the rational behaviour of the “boys to blame” (i.e. military powers). In fact, the last chapter is the most interesting, since it may be perceived as an attempt to equalise the balance between the positivist approach stemming from the previous chapters and natural law theory. If any critique could be made it would be that the author, while representing a positivist paradigm, refrains from presenting his stand on the issue of novel military technologies and leaves the reader with the somewhat unsatisfactory feeling that future decisions on relevant regulations will belong to State actors. It is a pity that a person with such experience as a military lawyer and deep understanding of this branch of international law does not present his de lege ferenda proposals. Some readers may be disappointed that the author restrains from taking a clear position on the role of morality in the assessment of the legality of weapons, especially when it is regularly invoked in international discussions as one of the key factors (i.e. at the CCW meetings of experts on LAWS). As was stated at the outset, this book is directed rather to governmental officials and weapons reviewers, thus contributing more to the concept of legal certainty than its agility. It can be argued that this is a drawback, but at the same time it may be proof of a healthy rationality. While drawing alternative scenarios of law-making processes, the author makes an argument that the most ambitious and far-reaching treaties are not always the best solutions and may result in unsatisfactory outcomes (i.e. a disregard for international law), a point on which he agrees with father of international humanitarian law, Jean Pictet. It is hard to find fault in such an approach, given that the aim of weapons law is to regulate the relationship between the threat, the military advantage, and the humanitarian danger that the technology involves, and not to end armed conflict. The author does not write as a pacifist because he knows that armed conflicts will persist and that States will have to be able to defend themselves. Therefore, in order to mi- nimise suffering caused to the participants of armed conflict and to improve their protection without prejudicing the security of a State, the effective implementation and development of the law of weaponry must be continued. Meanwhile, since the book presents fundamental considerations in the struggle for a safer (although not war-free) world – i.e. the need for balance, compromise, sensitivity and understanding – Weapons Law and The Law of Armed Conflictshould become compulsory reading for all treaty negotiators.

Kaja Kowalczewska* DOI 10.7420/pyil2016o

ICRC, Conference of Government Experts on the Use of Certain Conventional Weapons (Second Session, Lugano, 28.1.-26.2.1976), Geneva, 1976, p. 78. * Ph.D. candidate at the Faculty of Law and Administration at the Jagiellonian University in Kraków (Poland). Book review 283

M. Ruffert, C. Walter, Institutionalised International Law, C.H. Beck, Hart Publishing, Nomos Verlagsgesellschaft, Baden Baden: 2015, pp. 339

ISBN 978-3-8329-7204-2

Anybody studying the law of international organizations is now in a far better situation than several decades ago. The gap was first filled when Sir Derek Bowett published his seminal book The Law of International Institutions. Since then several editions of this masterpiece have been released (most recently the sixth, edited by Philippe Sands and Pierre Klein in 2009). In the meantime, numerous other examinations of the topic in English have been provided, with perhaps the most obvious work being the monu- mental treatise International Institutional Law by Henry G. Schermers (continued now by Niels M. Blokker), which has been found to be indispensable in any serious legal library. Several other authors (including most notably C.W. Jenks, F. Seyersted, N. White or J. Klabbers) have presented their own expositions of the problem, in many respects offering a fresh look at the issues under examination. The need for a comprehensive analysis was also recognized by The Hague Academy of International Law, which decided to prepare its own bilingual textbook under the auspices of UNESCO: Manuel sur les organisations internationales = A handbook on international organizations, with R.-J. Dupuy as an editor. In this regard one might be tempted to also include a reference to the comprehensive volume on the subject published in French, edited by Evelyne Lagrange and Jean-Marc Sorel, providing yet another vision for approaching the complex matter. The reasons for such a proliferation of textbooks are largely known. The growing importance of the law, the training of law students, and the increased need for interdisciplinary research also provide the impetus underlying the reviewed book, as the authors themselves acknowledge at the outset (p. 3). The book under review is a translation of a textbook originally published inG erman by two leading German international lawyers. As such, making this work available to an English readership is a most welcome step. It offers a perspective developed by constant reliance on the continental experience, which is evidenced by the systematic references mainly to the doctrinal views held by the German-speaking scientific community. In the view of its authors the book is designed to offer the basis for a scientifically sound work on the law of international organisations. The target audience is primarily students of international law and international relations, as well as practitioners and interested lawyers. By putting emphasis on the decisive link between substantive and institutional issues and their treatment in public international law (p. 5), the authors have attempted to avoid offering yet another catalogue of institutional developments. Instead, they offer a carefully structured, concise, and in most cases accurate reference book, which may be 284 Book review considered an invaluable aid for any student of the law of international organizations. The structure of the book is seminally clear and reflects the intention of the authors to combine the institutional and substantive aspects. The text has been divided into four parts. It starts with “Fundamentals”, including the conceptual, theoretical and historical bases of the law of international organizations and placing them in the larger context of the constitution of the international community. The second part deals with problems of common interest, thus forming a “general part” in developing this autonomous area of law, as is reflected by the title: “General Principles and Rules of the Law of International Organizations”. In a natural way it starts with the creation (and extinction) of international organizations and examines their legal personality and powers. Issues of responsibility and liability are dealt with separately. The authors synthesize the current trends, although references to the concept of accountability are extremely minimal. Bearing in mind the more in-depth reference to governance and global administrative law (in the concluding part 4), such restraint is rather surprising. When dealing with the responsibility of States which are Member States of such international organisations, a more direct exposition would be helpful with respect to piercing the corporate veil (Durchgriffshaftung), again reflecting the most intriguing concept of the autonomy of international organizations from their members. In a classic manner, separate chapters are devoted to membership and then to the organs charged with decision-making. The concluding chapter of part 2 deals with finance and personnel. For reasons of space the proposed analysis is rather condensed, if not laconic. Still, it provides a reader with all indispensable information, sometimes even illustrated with a table of approved budgets for recent years (1996-2011), which insofar as it concentrates exclusively on the UN family might have been omitted, if only for the sake of retaining the abstract character of the analysis. The third part deals with “Substantive Legal Regimes” and carries out the main assumption of the authors. The first chapter of this part is devoted to peace and security and to a large extent is dominated by the respective provisions of the UN Charter. The analysis of this traditional legal framework is appropriately thorough and includes the majority of its current challenges. Lesser attention is paid to the issue of maintaining peace and security through regional organizations. Unfortunately, apart from contextu- alizing them vis-à-vis the universal UN system, too little reference is made to the means of coordination between the various (regional) initiatives to protect peace and security. Another attempt to combine institutional and substantive matters relates to the protection of human rights and its institutional organization. While the analysis of this field of law as an organizational challenge comes as no surprise, the book helps clarify the underlying problems. With regard to universal protection, the authors offer not only an overview of the existing mechanisms (with particular emphasis on the Commission on Human Rights and the Human Rights Council, the treaty bodies, and the procedural possibilities), but also draw the readers’ attention to their respective deficits and weaknesses. When examining human rights protection at the regional level, Book review 285 the textbook concentrates on the European mechanisms and only cursory attention is given to the Inter-American and African contexts. All of them are, however, neatly juxtaposed. In addition, separate consideration is given to the respective institutional developments at national levels. The protection of human rights is also presented in the context of international criminal law, which in and of itself merits appreciation. Without doubt the creation of a system of international criminal justice is closely interrelated with the international protection of human rights. The subject-matter jurisdiction of international criminal courts and tribunals encompasses gross human rights violations, which is underlined (albeit implicitly) by the authors. While I can subscribe to this view without any major problems, I nevertheless find it problematic to contextualize this subchapter within the general framework of part 3. What is missing here is the law-in-action element, which would seem to fall within the general goal of analyzing the mutual influences between institutional and substantive international law. More attention could have been paid to the contribution of international criminal courts and tribunals to the development of substantive rules of international criminal law, thereby offering convincing proof that criminal proscription becomes the ultima ratio modality of the international protection of human rights. In addition, it might have been demonstrated that human rights protection is necessary in defining the procedural rules before the international criminal tribunals. Instead, the authors of the textbook preferred to offer a more cursory vision. In my opinion the most interesting and needed observations in the book relate to the protection of human rights against the acts of international organizations. The authors offer a clear-cut presentation of the emerging perspective, so crucial not only from the point of view examined in the sub-chapter but in general. The final chapters of part three are devoted to the economy and development and to environment. In addition to examining the universal economic organisations (e.g. the International Monetary Fund, the World Bank Group, the International Labour Organisation, and of course the World Trade Organisation), some other forms of cooperation at the universal level (the G8, the Paris Club) as well as the Organisation for Economic Co-operation and Development are also surveyed. Unfortunately there is no reference to commodity agreements, and regional cooperation is treated in a very cursory manner, without any mention of UNASUR. This is perhaps the price to be paid for the conciseness of the analysis. The above conclusion might be drawn also for other parts of the book, wherein the authors concentrate on references to developments while refraining from commenting on them or providing the reader with their own stance(s). This is especially noticeable in the concluding fourth part of the book, entitled “Perspectives”. It refers to the governance debate and the concept of international/global administrative law. In this context the role of international organizations in both contexts could have been presented in a more detailed manner. Without doubt the law of international organizations is no longer a new field of law, but it nevertheless remains a rapidly developing one. If only for this reason it deserves 286 Book review careful attention. The book under review seems to provide very reliable assistance for any student of this domain. Its clear and concise form facilitates its examination of all the main areas. The authors have managed to offer an original combination of institutional aspects together with their contribution to substantive law, successfully scrutiniz- ing the “law in action”. In sum, the volume under review constitutes a very accurate, up-to-date and well- structured guide to the examination of international institutional law. It is, quite simply, a comprehensive piece of work, reflecting the current state of affairs of the discipline and additionally providing a stimulating incentive or a convenient departure point for further studies in the given field. It should be recommended for all international lawyers.

Bartłomiej Krzan* DOI 10.7420/pyil2016p

* Associate Professor of Public International Law at the University of Wroclaw, Faculty of Law, Administration and Economics, Wrocław (Poland). * Associate Professor of Public International Law at the University of Wroclaw, Faculty of Law, Administration and Economics, Wrocław (Poland). Book review 287

Robert Kolb, Peremptory International Law – Jus Cogens: A General Inventory, Hart Publishing, Oxford/Portland: 2015, pp. xvii + 137

ISBN: 978-1-78225-727-1

The subtitle of the reviewed book well conveys its character. “Inventory” is more accurate than “introduction”, because the main aim of the book is to present and discuss key problems within the international jus cogens phenomenon. Professor Robert Kolb seeks to fill two gaps that are present in the mainstream treatment of the concept ofjus cogens, which he labels as the “value-orientedness” of peremptory laws. First, the book aims to explore this “value-oriented approach”, which is not simply rejected by Kolb, in terms of a proper underlying legal construction. The author is convinced that it is not sufficient for a lawyer to speak about fundamental values. According to him, lawyers must proceed to give these values and the legal constructs that underlie them a precise setting in legal technique. The second gap explored by Kolb concerns the legal literature on jus cogens. The current literature limits the concept of jus cogens to so-called “public order” norms, that is, those embodying the fundamental interests of a given society. This explains, at least to some extent, the common limitation of the analysis of jus cogens to, at best, Articles 54 and 64 of the Vienna Convention on the Law of Treaties (VCLT), which Kolb assesses as “utterly narrow and therefore imprecise” (p. vi). His book is aimed at giving a full account of peremptory norms in international law beyond the usually-described “public order” phenomena rooted in the VCLT. Professor Kolb attempts to define the concept of jus cogens so that it remains compatible with the legal certainty necessary for the proper functioning of the international legal order. At the same time, his book is neither a full-fledged treatment of the issue, nor a review of basic knowledge. Kolb underlines that it is a book aimed at reflection. This is why it is worth reviewing. The book consists of eight parts. The first part concerns definitional issues and the functions of jus cogens. Part two presents views of the adversaries of peremptory norms. The third part offers critical comments on theories justifyingjus cogens. The fourth part seems to be especially important, because it offers original views on the legal construction of international jus cogens. The author’s disquisition deals especially with the types of peremptory norms, their extension, and the gist of peremptoriness. Sources of jus cogens are analysed in fifth part, whereas practical problems connected with effects of peremptory norms and conflicts between them are discussed in parts six and seven. The final part consists of a short conclusion. Professor Kolb rightly underlines that perhaps only the concept of sovereignty is a greater source of uncertainty in international legal scholarship than the concept of jus cogens (p. 7). Indeed, there is a huge divergence of opinions on both concepts. For this reason, a clearly established core of jus cogens is a primary task for those who wish to present the practical effects of jus cogens within international law, and its legal 288 Book review significance. The key issue of “peremptoriness” will be a point of reference for further remarks. Kolb discloses his standpoint on the nature of jus cogens at the very outset of the book. According to him, the issue of “non-derogability” is the proper domain of peremptory norms because the common root of the jus cogens phenomena is exactly their non-derogability (p. 8). Thus, jus cogens is a legal technique which enhances the unity of a legal order by its refusal to apply the rule lex specialis derogat legi generali. As a legal technique, jus cogens protects against the fragmentation of the law, including international law, into a plurality of separately applicable legal regimes. In other words, the aforementioned collision rule is, in the case of jus cogens, replaced by an opposite rule: lex specialis non derogat generali cogentis. Jus cogens as a legal technique erases the conflicts between norms at their roots, since a particular norm which is in conflict with a peremptory general one is voided. Kolb strongly underlines that jus cogens is “only” the quality of a norm, not the norm itself. As such, it is neither a substantive provision nor a source of law in itself (pp. 2-3). These inspiring views on the nature of jus cogens shape, on the one hand, his arguments in further parts of the book, while on the other they raise some doubts. Thus they require critical examination. Kolb rejects the “natural law” justification ofjus cogens (pp. 31-32). He clearly posits that jus cogens, as a legal technique, should not be confused with natural law. He does not support the predominant theory today, namely, the “public order of the international community”, because jus cogens cannot confine itself solely to public order. Ac- cording to Kolb, there are different types of jus cogens, not limited only to those which protect the fundamental values of the international community. Besides, jus cogens as a legal technique is hierarchically neutral. Peremptory norms are concerned with the relationship lex generalis/ lex specialis, and not with the relationship lex superior/lex inferior, says Kolb (p. 35). He doubts whether the hierarchical argument is strong enough to justify jus cogens. Kolb considers this argument as misleading from the point of practice, since it is not true that a superior norm will enjoy priority of application simply because of its superiority. This is a rather controversial view and it does not sound convincing enough. Kolb partly supports the concept of jus cogens as rules of international constitutional law which amount to fundamental general principles and are the minimum necessary for the existence of the international legal order. However, he states that theories of international constitutional law themselves are too narrow to adequately explain jus cogens, because peremptory norms do more than just protect the most important principles of a legal system. First and foremost, they are a legislative tool that can be used on any normative plane to protect the integrity of a legal order (pp. 38-39). In this way, Professor Kolb comes back to his definition of jus cogens as a legal technique inherent in law, which can be defined by its effect, i.e. non-derogability. Thus,jus cogens is general law from which no derogation is permitted. This definition, based on effect, is a formal one, indicating rather the legal process of creation than the end product. The basic question which it raises here is namely: What is the normative status of jus cogens in the international legal reality? After all, Kolb emphasizes that it is not a substantive Book review 289 rule, but “only” a legal technique inherent in a general rule. But what does this mean? Is it a formal procedural rule or a necessary consequence of legal thinking, or maybe a mandatory presupposition of that thinking? Is such an understanding of jus cogens really grounded in positive law? One can look for answers to these question in parts four and five of the reviewed book. Professor Kolb explains that jus cogens as a legal technique does not have an absolute and monolithic nature. On the contrary, it remains highly contextual, variable, and multi-faceted (p. 45). Indeed, it is a variable and quite open explanation. Non-derogability is the “unifying umbrella” of Kolb’s construction of jus cogens. But what is the source of non-derogability, and thus of jus cogens itself? Kolb indicates three formal sources: treaties, customs, and general principles. However, another question arises concerning the source of those formal sources, or – so to speak – the ‘meta-source’ of jus cogens. Kolb does not give a convincing response to this principal question. While he seems to be right in positing that Article 53 of the VCLT can hardly be considered an exclusive expression of all international jus cogens, his other views on the sources of jus cogens and their justifications are rather incomplete. In this way he himself confirms his view that the question of what sources of international law underlie jus cogens norms is the vague and confusing one (p. 89). In my opinion, Kolb’s position leads to a fragmentation of normativity of jus cogens. According to him, jus cogens can be based on sources of both general and particular international law. The “public order” aspect of jus cogens will, he accesses, more often be embodied in the sources of general international law, whereas its “public utility” aspect is based on particular international laws. Besides, Kolb emphasises the relativity of jus cogens in the domain of legal technique, which means that a given norm can be technically jus cogens and yet not bind all States (p. 95). This raises some doubts; namely, whether the relativity of jus cogens does not injure their peremptoriness? Kolb singles out three types of jus cogens, or three reasons which may lead to a norm being non-derogable (pp. 46 ff). The first comprises “public order jus cogens”, that is, fundamental norms which protect basic values for the international community and which as such are non-derogable. The second comprises ‘public utilityjus cogens’ which are not linked to basic values or fundamental norms but to norms where the legisla- tors have a common interest in maintaining an unaltered, integrated and efficiently functioning legal system. The best examples of this type of jus cogens are the constitutive treaties of international organisations or organs. In this context special attention is given to the Statute of the International Court of Justice. The third type of jus cogens consists of “logical jus cogens”. These encompass, according to Kolb, the principlespacta sunt servanda and good faith (p. 56). Yet, the distinction between these three types of jus cogens seems to be artificial, and, as a consequence, the actual justification for non-derogability rather unclear. In particular, there is no need to distinguish between logical jus cogens and the other two types. Neither pacta sunt servanda nor bona fides can be derogated without falling into a contradiction in every legal order, since they are primary general principles of law. By this I mean, firstly, “meta-principles” which 290 Book review are tantamount to Hart’s secondary rules and, secondly, general collision rules. Such an understanding of general principles lies at the core of peremptoriness in law, including international law. It follows that jus cogens is primarily embodied in general principles. The non-derogability of any rule or principle cannot be justified without pacta sunt servanda, bona fides and estoppel. In other words, jus cogens as a quality of a norm is something more than a mere legal technique and logical jus cogens. It is more than just a tool for international legal rules and principles. In this context one may ask why some substantive rules and principles connected with fundamental values are recognised as peremptory norms, while others are not. Kolb does not delve into detail on this crucial problem, which concerns the issue of legitimacy of international law, and especially the significance of the consent of States within it. At the same time however, his book inclines readers – in fact it “forces” them - to rethink rudimentary problems of international law. Indeed, Kolb’s work is a real book for reflection in every sense of the word. It proves that one can put much into a short book.

Roman Kwiecień* DOI 10.7420/pyil2016q

* Full professor of law at Cracow University of Economics, Faculty of Finance and Law (Kraków, Poland), Chair of Public International and European Law (e-mail: [email protected]). Book review 291

Eugene Kontorovich, Francesco Parisi (eds.), Economic Analysis of International Law, Edward Elgar Publishing, Cheltenham: 2016, pp. 304

ISBN: 978-0-85793-015-6

Economic Analysis of International Law. Or is it?

1. International law practitioners’ complex

Going back to the anecdotal roots of law and economics (L&E), one may refer to professor Garry Becker’s race against the clock. He had to choose between violating a parking ban next to his university building, or driving to a parking lot further down and increasing his already late arrival. While assessing the cost of receiving a parking ticket against the value of reducing his tardiness, the later Nobel economic prize laure- ate was struck by the fact that the same analysis could have been conducted by both a criminal pondering her career path, or a municipal legislator interested in harnessing a parking frenzy. Thus was born the study of the efficiency of law. Since then we have witnessed a continuous development of law and economics, covering ever more and newer fields, including, inter alia: the impact of sexual discrimination on the labour market; challenges to the efficient management of companies posed by the divergent interests of managers and shareholders; acknowledgement of the fact that trade in pollution li- cences may contribute to a cleaner environment; and complex strategies for fighting criminal organisations. One field orphaned by this exhilarating scientific boom was public international law (PIL). Twice in fact. Until relatively recent times, PIL struggled to be recognised as a fully-fledged area of law, mainly due to the never-ending disputes concerning its shortage of enforcement mechanisms. From that stage it appears to have moved directly to a post-national era of governance, where the need for global regulatory cooperation is not questioned, however, the “international” denominator becomes increasingly blurred. Paradoxically, the Economic Analysis of International Law, edited by Francesco Parisi and Eugene Kon- torovich, reflects both existential dilemmas of PIL. On one hand Francesco Parisi and Daniel Pi suggest – as is echoed by Parisi together with the other editor of the volume Eugene Kontorovich – that PIL “lagged behind compared to other areas of law in benefiting from the influence of economic analysis of law”, due to its informal rules and weak enforcement mechanisms. Although such a suggestion seems somewhat surprising (in light of the interest in L&E in, e.g., the informal creation of property rights, analysis of criminal organisations, or the grey 292 Book review economy), it does voice the above-mentioned complex felt by PIL scholars. On the other hand, contrary to the optimistic forecast by Eric Posner in the book’s cover, the book appears more as a nail in the coffin of the merger between EL& of international and domestic law, rather than laying the “foundations for the work in years to come”. While not rushing to conclusions, several points deserve to be mentioned.

2. State of the Art

In comparing the various definitions of L&E, one recurring regularity is the distinction between theoretical approaches (i.e. studies of normative efficiency, whether in its descriptive or normative meaning) and practical ones (focusing on incentives and people’s reactions thereto). It also appears that whereas theoretical analysis constitutes a departure point, as analyses of particular substantive fields of L&E mature practical approaches gain in popularity. However, seen from this perspective the volume seems to imply that economic studies in the area of PIL at best aspire to the theoretical level. Let’s refer to two chapters, arguably the most interesting ones: “The emergence and evolution of customary international law” by Francesco Parisi and Daniel Pi (Ch. 6); and “The interaction between domestic and international law” byT om Ginsburg (Ch. 8). Francesco Parisi and Daniel Pi tackle the topic of international customary law from the perspective of a fragile equilibrium between short-sighted opportunism traded off for the long-term goal of efficient rules. Following general references to the games theory and cooperation surplus, the authors share several observations concerning the opti- mal effort level (for respecting a customary norm), and the interplay between subjective scope (group size) and effort incentives. References are made to the free-rider problem and reputational costs. Their paper offers several elegant formulas establishing ratios between elements such as costs, benefits, and discount rates to describe the situation under which a state, in accordance with the rational choice theory, would support or object to the establishment of a new customary law. However the factors considered, while undoubtedly interesting, are hardly quantifiable, hence the results are far from reaching the level of even strategic, not to mention practical, application. And this is without even taking into account the methodological disclaimers, such as the exclusion from the customary law analysis of reputational costs… The authors themselves acknowledge that the chapter “introduces exemplars” that ought to “provide groundwork for future research” (p. 156). Tom Ginsburg invites readers to question the reductionist vision of the relationship between international and domestic legal orders (no matter whether one adheres to the realist school of international relations or to the communitarian tradition of a unitary

See e.g. B. E. Butler, Law and Economics, in Internet Encyclopedia of Philosophy, available at: http:// www.iep.utm.edu/law-econ/; or P.H. Rubin, Law and Economics, The ConciseE ncyclopedia of Economics, available at: http://www.econlib.org/library/CEE.html (both accessed 30 May 2017). Book review 293 legal system). Ginsburg sketches the great complexity of this situation. On one hand, international compliance may be a function of domestic structures and preferences. On the other hand, transnational interest groups may transfer the centre for aggregation of interests to another level. The author notes that nuances in this relationship were not subjected to systematic scrutiny until 2002, and that the literature thereon remains scare - apart from a single, loosely related, work of 2012, references do not reach beyond 2009. The subsequent general overview of pertinent topics – including nested jurisdictions, public goods, and agency costs – is certainly interesting. However, just as the reader becomes intrigued by the introductory combination of general (and well established) theories … the paper ends. The fact that the paper halts right at the point where reader would expect to actually dive into actual L&E is not limited to this particular paper. What is, however, striking is its confirmation of the above-described premise that just at the time international law matured enough to receive equal attention, it seemed to vanish into the blurred reality of the nascent post-state international order. This chapter also confirms the conclusion concerning the state of the (L&E) art in the field of international law: it does not go beyond rather modest conceptual considerations. Unlike the two papers mentioned above, some others deserve much less credit, such as The economics of state emergence and collapse by Bridget Coggins and Ishita Kala. If one eliminates the 32 pages of “technical background” (some general theories of state emergence and legal personality, case-studies, and other issues subsidiary to the research question), the actual analysis is limited to roughly 3.5 pages. Interestingly, while the entire book appears as an homage to Goldsmith and Posner (Amazon search engines suggest 50 references to the latter in only 10 chapters), Coggins and Kala dedicate five pages to discussing the seminal work The Limits of International Law(2005). This is by no means to undermine significance of that work. The question is, however, as the two authors did not engage in actual law & economics, was the actual aim of the volumi- nous 32 pages to prove that “rational choice approaches have great unrealized potential regarding the most fundamental dynamics of international law” (p. 72); i.e. supposing that nothing changed since the last quoted paper of 2011? Indeed, claims from the early 2000s appear firmly established today.

3. What Is It Not? What Actually Is It?

The filling in of the gaps in the economic analysis of international law is eagerly await- ed by numerous scholars, who jump with excitement at each such promise, usually to their disappointment. Such is the case of this book, which is all the more disappointing given that the disillusionment is more due to its unfortunate title than to its contents. So, what is the Economic Analysis of International Law not about? As suggested above, one will not find actual economic analysis, in the sense of either a methodology consistently applied throughout a specific branch of law, or a volume consisting of analysis of its specific area. It rather is an Anthology. 294 Book review

As also described above, it certainly is not a practical approach to L&E. Even at the theoretical level, most articles mainly review generalities in the relevant theories of law and economics and public international law, hardly contributing any new syntheses. Accordingly, it rather is An Anthology of Law & Economics: Sketches. As for the international law denominator, the Table of Contents speaks for itself. The book is divided into four parts: –Building Blocs of International Law (about states); Sources of Law (namely treaty law, customary law and soft law); Enforcement (consisting of a chapter on enforcement and another on interactions between domestic and international law); and the last part, consisting of one substantive analysis (related to IHL regimes) and one methodological paper (behavioural economics). Again, rather than speaking of an ‘Analysis of’ International Law, the term Anthology seems a more appropriate title. According to the promises made in the book cover, the volume is supposed to provide “original and incisive contributions” and, from the cover review, “innovative essays”. Obviously academic work consists of an accumulation of experiences, thus the ample references to the literature of 1970s and 1980s is fully understandable. However, the fact that the frugal references dating from 2010 onwards are rather exceptional not only undermines the claim concerning “the catching up of L&E with other fields” and “providing a path through recent literature”, but makes one wonder whether the field has actually stagnated in the last decade. Finally, it seems on numerous occasions (e.g. Chapters 1, 8, 9) that if one changed the title term “economic analysis” to “political economy” the contents could still be presented unaltered. Having said that, an Anthology of Essays on the Economic Analysis of International Law is an interesting proposition, which invites readers to re-examine some long-established notions of international law and open themselves up to fascinating insights from other sciences that may fundamentally alter our understanding of the legal environment, as in the arguably most interesting chapter, Chapter 10, which introduces elements of the concept of behavioural economics. It allows economists to grasp some basic notions of public international law, and lawyers to become acquainted with basic economic theories applied to law. Finally, it is a useful overview of the available literature on international law and economics. Put simply, in this case do not judge the book by its cover.

Marcin Menkes* DOI 10.7420/pyil2016r

Behavioral economic analysis of international law, authored by A. van Aaken & T. Broude, pp. 249-275. * Ph.D., Assistant professor at the Warsaw School of Economics, Collegium of Management and Finance, Warsaw (Poland). Book review 295

Marc-William Palen, The ‘Conspiracy’ of Free Trade: The Anglo-American Struggle Over Empire and Economic Globalisation, 1846-1896, Cambridge University Press, Cambridge: 2016, pp. 334

ISBN: 978-1-10710-912-4

1. Surrounded by Conspiracies

Most of us accept, at least on some level, the constructivist notion of the social world as a cultural and linguist construct. That the world is a social construct seems most evident from its dark side. The unknown spurs the imagination, rendering a threatening situation even more sinister. Such heuristic simplifications tend to be particularly efficient whenever one needs to quickly fill in gaps in one’s understanding of the world. Conspiracy theories, feeding on insecurity, can thus be traced throughout human history, from ancient mythologies to contemporary technological and medical myths. Even in law – arguably the most linguistically-embedded of social realms – it is rare to witness anyone capable of altering this structure beyond amplifying our deeply embedded beliefs, or the dexterous reframing of a dispute. However, occasionally we come across works that change our perception of the world. Such, for instance, was the case of How- ard Zinn’s A People’s History of the United States. Whether one agrees with any of its di- verse critics or not, Zinn managed to bring the ugly, underdog narrative of US history to general attention. Such rare occasions should be particularly cherished by lawyers, as they remind us to question the assumptions upon which normative claims are constructed. The ‘Conspiracy’ of Free Trade. The Anglo-American Struggle Over Empire and Eco- nomic Globalisation, 1846-1896 by Marc-William Palen deserves just such particular attention. Inasmuch as the author challenges the reductionist oversimplifications of still- valid globalisation dilemmas, the book could, hopefully, immunise public discourse against irrational fears and the current surge of populism dictated by ignorance. This is important given that conspiracy patterns seem all too easily applied to the “sinister ways” of the (global) economy, notably to alleged secret alliances between the proponents of free-trade and the beneficiaries of neo-imperialism. The problem seems ever more pressing since the 2008 global financial crisis, as we are currently witnessing the questioning of the very foundations of liberal democracy and market economy (not to be confused with debates concerning needed reforms). Frantic news cycles have exacer-

D. Kahneman, Thinking Fast and Slow, Penguin Books, London: 2012. Popular Mechanics, 9 Top Tech Myths Debunked, available at: http://bit.ly/2p8W8AR (accessed 30 May 2017). BBC, Medical Myths, available at: http://bbc.in/2oAX51c (accessed 30 May 2017). H. Zinn, A People’s History of the United States, Harper & Row, New York: 1980. A. Domosławski, Dzieje na nice wywrócone, 22 Polityka 2016. M.-W. Palen, The “Conspiracy” of Free Trade. The Anglo-American Struggle Over Empire and Economic Globalisation, 1846-1896, Cambridge University Press, Cambridge: 2016. 296 Book review bated the deprivation of a subjective sense of security experienced by Western societies, which are struggling with the complexities of the global economy as well as the expectation that every subsequent generation will live a better life. Hence the turn from the expectations of liberty to quick-fixes vis-à-vis security. On one hand, this has given rise to a legitimacy crisis of the current political set-up and, even more so, of international organisations, which embody incomprehensible threats to cosy, local security. On the other hand, insecurity creates fertile grounds for populism, which has swept across political scenes, from Hungary (Victor Orban) to Poland (Beata Szydło/Andrzej Duda) to the UK’s Brexit and Donald Trump presidency in the U.S. From the perspective of public international law, multilateral economic treaty talks – including the general backlash against TTIP, CETA or ACTA – have suf- fered from perfect storm conditions, combining the legitimacy crisis and populism. The culprit? Blame liberalism and a corporate conspiracy. Economic globalisation has obviously created space for numerous problems, from tying national economies to the caprices of international capital flows to allowing the misuse investment protection in order to derail public regulation. This should not, however, pave the way from insecurity to conspiracy theories with respect to the international economic order. Accordingly, the recurrent theme of the Anglo-American debates concerning free-trade should resonate well with today’s economic globalisation belligerents and conspiracy theorists: Does globalisation entail the “universal eman- cipation of mankind” and serve as a “tool for civilising less advances societies”?; or has “premature free trade kept societies in a barbaric uncivilised state” and “enslaved domestic manufacturers and labourers to foreign markets”?

2. Post-bellum Recast of the Neo-imperial Free-trade Agenda As Marc-William Palen demonstrates, the dominant perception of the inseparability of open-door imperialism and free trade is a “post-bellum recast”. For the greater part of the 19th century however, “free-traders” were the most vocal critics of American empire- building and should rather be perceived as “imperial anti-colonialists.”10 It was only at the end of the century that American Listian nationalists guided the Republicans towards state-supported, even coercive, market expansion, while Great Britain shifted towards imperial protectionism (not the ‘free-trade nightmare’ of conspiracy theorists).11 “Open- door imperial interpretation stems from […] depiction of the American late nineteenth century as a laissez-faire […] debunking the myth of laissez-faire at home allows for a

F. A. Hayek, The Road to Serfdom, University of Chicago Press, Chicago: 1994; Z. Bauman, Liquid Modernity, Polity, Cambridge: 2000. Palen, supra note 6, p. XXIX. Ibidem, pp. XXIX-XXX. 10 Ibidem, p. XXXV. 11 Ibidem, p. XIX-XX. Book review 297 much-needed reconceptualization of […] American imperialism abroad”.12 By doing just this, Palen identifies the driving powers behind the imperial demand for foreign markets, to some extent replicating English cosmopolitism, as well as both the domestic and global push-back against this policy. He questions the revisionist argument of a bi-partisan open-door or free-trade imperial consensus13 by addressing three questions:14 • How did Victorian free-trade cosmopolitanism influence American domestic politics and foreign relations? • How did economic nationalism oppose the liberal agenda in the U.S. and in the British Empire? • How did these conflicting ideologies shape Anglo-American relations, imperialis- tic yearning, and economic globalisation?

3. Cobdenism v. Listian natonalism

Although notions of both protectionism and free-trade can be traced back centuries, their substantive meanings continually evolved. It was only during the nascent globalisation of the Victorian period that two fierce disputants,R ichard Cobden and Friedrich List, hand-in-hand moulded both notions into their contemporary sense (even though the terms of free-trade or reciprocity, and resulting presumptions concerning the political goals of both camps, can still be very misleading15). It was a clash between, on one hand, the concept of global free trade, non-interventionism and anti-imperial market expansion, and on the other the perception of a perpetual global conflict entailing nationalism, protectionism, and coercive expansion.16 Accordingly, free-trade policy can be traced back to Cobdenism, a political and economic doctrine developed by the Richard Cobden, a Victorian advocate of peace, withdrawal from the European competition for balance of power, and free trade. On this basis, Victorian liberals argued against the U.S. protectionist approach.17 In the U.S. Cobdenism peaked during the presidencies of Grover Cleveland (1885-1889 and again in 1893-1897), which are crucial for Palen’s book . As for the Republican agenda, it can be traced back to Alexander Hamilton, and even earlier to Friedrich List. Based on the economic German school, “Listian natonalism” opted for the protection of infant industries, while pursuing an imperial foreign policy, including the acquisition of foreign markets by force. American Cobdenites’ campaign for free trade, which coincided with the alleged English interest, led the Republicans – “realists of international relations” – to the belief that Cobdenism was

12 Ibidem, pp. XXX-XXXI. 13 Ibidem, p. XXXII. 14 Ibidem, pp. XVIII-XIX. 15 Ibidem, pp. XXII-XXIV. 16 Ibidem, p. 267. 17 Ibidem, p. XIX. 298 Book review in fact a pro-British conspiracy designed to stunt America’s growth.18 Unsurprisingly, this approach evolved into “Anglophobic paranoia”.19

4. Why does this matter for international law scholars in the 21st century? It seems that Palen’s book, which provides a thorough chronological study of the positions and clashes between Cobdenites and Listians, is a precious resource for economic and imperial historians. Palen analyses an array of sources, from official documents to academic opinions to personal communications between the most prominent stakeholders to press narratives. It covers the Grover Cleveland and Benjamin Harrison presidencies (Chapters 5, 7, 9). We also find an analysis of the 1890 McKinley Tariff (Chapter 8). Although perhaps it falls short of author’s own “universalistic ambitions”, the book also provides some insight into third states’ reactions to this debate in Austra- lia and Canada (Chapter 6). Whether the proof for the conspiracy argument is satisfactory or not from the strictly historical perspective,20 this book constitutes a source of inspiration to those interested in international law, international relations, and international economics. By showing “how ideas have helped shape local and global history”,21 it reminds readers that a coherent narrative describing the linear development of law or politics is always a product of posterity, thus filtering past actions, events and opinions through one’s own experiences.22 Firstly, it compels readers to critically reassess what is taken for granted in the discussion on international economic regulation, which is especially pertinent in times when even the IMF, the World Bank and the WTO are cautiously re-examining their long-standing regulatory philosophies. Secondly, whereas conspiracy believers are hardly the type to be convinced by rational arguments it may be reassuring to see, at least for the simplified general discourse about economic globalisation, how similarly unfounded fears already framed debates in the 19th century. Whereas a lecture consisting of over 300 pages of dense historical analysis is not a quick read or an easy supplement to one’s legal studies, for anyone hoping to gain broader understanding of the globalisation debate this book deserves, at the very least, a careful read-through.

Marcin Menkes* 23 DOI 10.7420/pyil2016s

18 Ibidem, p. XV. 19 Ibidem, p. XX. 20 Review by D. Kölling, in: 2 Global Histories 96 (2016). 21 Palen, supra note 6, p. 268. 22 L. Stomma, A jeśli było inaczej... Antropologia historii [If it was otherwise… Antropology of history], Wydawnictwo Sens, Trzebaw: 2008. * Ph.D., Assistant professor at the Warsaw School of Economics, Collegium of Management and Finance, Warsaw (Poland).