(2019) 4 Perth International Law Journal a PERTH INTERNATIONAL LAW JOURNAL
ACADEMIC JOURNAL OF THE UNIVERSITY OF WESTERN AUSTRALIA INTERNATIONAL LAW SOCIETY
VOLUME 4
2019
b (2019) 4 Perth International Law Journal (2019) 4 Perth International Law Journal i PERTH INTERNATIONAL LAW JOURNAL
ACADEMIC JOURNAL OF THE UNIVERSITY OF WESTERN AUSTRALIA INTERNATIONAL LAW SOCIETY
Co-Editors Delaney Bruce Chelsea Francis Lloyd Hotinski
Advisory Board Professor Stephen Smith, Former Minister for Defence and Foreign Affairs Professor Erika Techera Assistant Professor Philipp Kastner Dr Fiona McGaughey Dr Jade Lindley Dr Juan He Dr Dominic Dagbanja Wygene Chong
The views and opinions expressed in the articles of this journal do not necessarily reflect the views and opinions of The University of Western Australia International Law Society or the editorial team of the Perth International Law Journal. All views and opinions expressed are solely those of the authors of the articles and all responsibility for the articles lies with them.
Cover design by James Earnshaw.
Cite Journal as Perth ILJ
ISSN 2208-8350 (Print) ISSN 2208-8369 (Online)
© UWA International Law Society © The Authors The research published in the journal is open access and reusable under the terms of the Creative Commons CC-BY license.
IV (2019) 4 Perth International Law Journal UWA INTERNATIONAL LAW SOCIETY
The University of Western Australia International Law Society (formerly the UWA International Law Club) is a UWA Guild affiliated student society for anyone interested in International Law. Founded in 2016, the society aims to promote the field of International Law in the university community through lectures, seminars, panel discussions, round-table discussions, and an annual international law journal.
2019 Executive Committee:
President Ian Tan Vice-President Jing Zhi Wong Secretary Chelsea Francis Treasurer Austen Mell
(2019) 4 Perth International Law Journal V Editors’ Foreword
It is with great delight that we present the Fourth Volume of the Perth International Law Journal. We are immensely grateful to every individual who has enabled this publication to come to fruition. Our thanks particularly extend to each contributor and peer reviewer who aided with this final product.
We are further grateful for the advice and oversight of our esteemed Advisory Board; the continued academic support from the UWA Law School is cherished.
Our vision is to inspire Australia’s legal minds to ponder matters of international law in the context of the increasingly globalised world. The articles published by this Journal are, therefore, selected on the basis of their contemporary relevance to matters of international law. Comparative law and its intersection with international law, international arbitration, and international environmental law are a few examples of the range of areas that this publication concentrates on.
Published in the middle of a global pandemic, it is blatantly evident that we operate in a Brave New Word that is governed by escalating globalisation. Accordingly, the growing incidence of multi-jurisdictional operations and the need for considerations in international law is undeniable. The significance of ‘soft law’, approaches to comparative legal methods, and the impact of international policy on global governance is explored within this volume.
We are honoured to have had the privilege of creating this volume. It is our hope that students and seasoned scholars alike are inspired by the subject matter discussed within this Journal. It is our expectation that readers will grow in their appreciation and understanding of the critical role international law has in the context of the contemporary world.
Delaney Bruce Chelsea Francis Lloyd Hotinski
Co-Editors May 2020
VI (2019) 4 Perth International Law Journal President’s Foreword
The Perth International Law Journal was established in 2016 with a focus on providing an accessible forum for university students to contribute to the international legal discourse. Since then, three volumes of the Journal have been published. This fourth volume of the Journal continues that tradition, carrying submissions from university students, academics, and legal practitioners on areas of significance.
At the onset of a new international order, Robert H. Jackson – then an Associate Justice of the US Supreme Court – stated in a 1945 speech that: “those who best know the deficiencies of international law are those who also know the diversity and permanence of its accomplishments and its indispensability to a world that plans to live in peace.” For over seven decades since, that rules-based international order has underpinned cooperation, security and trade on a global scale. However, recent times have made the deficiencies and frailties more pronounced as populism and nationalism gain prevalence. Notably, the Covid-19 pandemic has directly challenged the legitimacy and relevance of international law.
Jackson’s quote remains apt today. The Perth ILJ will continue to offer a medium for students, alongside members of the academia and legal profession, to offer their thoughts, perspectives and insights in their analysis and dissemination of these developments within international law. I have no doubt that the Journal will continue to be an important source of commentary, discussion, and erudition.
I wish to offer my thanks for the continued guidance and support extended to the Journal and the Society by our Advisory Board, our peer-reviewers and the UWA Law School. Jing Zhi Wong also deserves thanks for his continued guidance and support.
The Editors of this volume, Delaney Bruce, Chelsea Francis and Lloyd Hotinski, also deserve recognition for their dedication and hard work over many months to bring this volume to publication. Each are highly talented individuals from our UWA community and we can look forward to their many achievements in the future.
Ian Tan 2019 President UWA International Law Society May 2020
(2019) 4 Perth International Law Journal VII Errata to Volumes Two and Three
‘The Value of Treaty-Making with Indigenous Peoples in Australia’, by Aparna Jayasekera, Volume 3 (2018), pp 33-57 - ERRATUM
In the original publication of this article, there were a number of errors in the headings:
(p 45): “E Other Jurisdictions” ---> “B Other Jurisdictions” (p 51): “F Canada“ ---> “B Canada” (p 52): “G New Zealand” ---> “B New Zealand” (p 54): “H Canada” ---> “C Canada”
The publisher regrets this error.
‘Malaysia’s Application for Revision of the Pedra Branca Judgment: Case Note on the Question of Admissibility’, by Jing Zhi Wong, Volume 2 (2017), pp 62-78 - ERRATUM
In the original publication of this article, there was a spelling mistake:
(p 72): “ICJ Stature” ---> “ICJ Statute”
The publisher regrets this error.
VIII (2019) 4 Perth International Law Journal Contents
Preliminary Matter Editors’ Foreword ……………………………………………………………….. vi President’s Foreword ……………………………………………………………..vii Errata to Volumes Two and Three …………………………………………...... viii
Articles Platforms, Plastics and Parasites: International Law Responses to Contemporary Marine Pollution Issues Erika Techera…………………………………………………………………..…...1
Direct Participation in Hostilities: Between A Rock and a Hard Place Alessandro Silvestri………………………………………………………….…....13
Law or Not: Considering the Value of International Soft Law in Addressing Environmental Problems Alexander Anile…………………………………………………………….…...... 21
Shaky Foundations: ‘Killer Robots’ and The Martens Clause Marcus Hickleton……………………………………………………….…....…....31
The Exercise of Prerogative Powers and their Political Outcome Robert E Lindsay………………………………………………………….……....63
Comparative Legal Methodology and Its Relation to the Identification of Customary International Law Jing Zhi Wong……………………………………………………………….….....81
Judicialization of the Arbitral Process Bruno Zeller………………………………………………………………….…...111
(2019) 4 Perth International Law Journal IX An Overview and Consideration of De-Radicalisation In Malaysia Ian Tan………………………………………………………………………….....119
Geographical Indications Under the WTO/TRIPS Agreement Carla Sangiovanni………………………………………………………………...141
A Spying Scandal and a Border Dispute: Timor-Leste and Australia Samara Cassar………………………………………………………………….....155
Proceedings of the Society Proceedings of the UWA International Law Society……………………...... 173
X (2019) 4 Perth International Law Journal Platforms, Plastics and Parasites PLATFORMS, PLASTICS AND PARASITES: INTERNATIONAL LAW RESPONSES TO CONTEMPORARY MARINE POLLUTION ISSUES
ERIKA TECHERA*
ABSTRACT
Protecting ocean health is critical to ensure food security, marine conservation and sustainable use of our oceans, as well as the achievement of broader blue economy goals. Despite significant global attention, marine debris, waste and pollution continue to cause concern and cumulatively impact on marine and human health. Legal frameworks have been developed over the last half a century focused largely on preventing deliberate dumping of waste, or accidental environmental damage caused by marine pollution from ships. Several of these regimes were created when much less was known about the ocean and what activities impacted upon it, as well as the techniques and tools to prevent damage. It is therefore timely to re-visit the legal frameworks and explore whether they are able to address contemporary challenges. This paper will outline the current state of the international law drawing upon three case studies: in situ decommissioning of oil rigs and their disposal at sea, the cumulative impacts of plastics in the ocean and bio-security hazards created by alien invasive species. These challenges are all anthropogenic and this article will identify areas where further interventions are needed to better regulate and manage activities and prevent significant harm.
I INTRODUCTION From the earliest of times people have utilised marine areas for food, recreation, transport and exploration. While populations were low, waste products finding their way into the oceans had no significant negative effect on marine health. Across the centuries the impacts have increased as populations and activities have expanded, and pollution in the oceans has exceeded the oceans’ absorption and cleansing capacity. Marine pollution can arise from industrial activities in the ocean (such as seabed mining, and oil and gas exploration), from ships (either through daily operations or accidental spill events), from land-based sources (such as run-off) and from deliberate dumping of waste. Marine pollution has been a matter of significant global concern since the mid-twentieth century, and the international community has responded with a number of multi-national instruments, combined with regional and domestic laws. Nevertheless, substantial issues remain, and this article explores three specific areas, each of which is topical with challenges for law- and policy-makers, industry and other
(2019) 4 Perth International Law Journal 1 Erika Techera stakeholders. The first issue - the problem of plastics - is a cumulative one that can affect ecosystem quality, food safety and ultimately human health.1 The challenge is how to address the issue of marine plastic debris given that it emanates from multiple sources, involves various industries and myriad commercial and community uses. The second case study involves alien marine species that can be introduced into new environments in a number of ways with devastating consequences on local organisms and ecosystems.2 Again this is a complex area, involving all types of maritime transport, and one where there is unlikely to be any easy solutions. Whilst ballast water can be managed, in part, through the use of management systems and treatment facilities, bio-fouling is an inherent problem in all forms of shipping. Thirdly, concerns surround the safe disposal of redundant offshore infrastructure.3 Although many petroleum exploitation agreements include reference to the complete removal of infrastructure at the end of its field life, the cost, technical difficulty and potential marine impacts now suggest that this may not be the best option. Alternatives include partial or complete in situ decommissioning. Whilst this could provide ecosystem benefits in some situations, through the creation of artificial reefs, it comes with its own risks, will not be appropriate in all circumstances and may also be seen as a form of sanctioned dumping of waste in the ocean. This article explores three contemporary case studies as a lens through which to examine the effects on the oceans from expanding human activities and how environmental law must evolve to keep pace. The paper commences by examining the impacts of these global ocean-based problems, followed by the existing international legal frameworks to address marine pollution. The final section considers potential future developments to ensure that law remains efficient, effective and fit for purpose.
II THE IMPACTS A Plastics Plastic pollution is a subset of marine debris but its impacts are perhaps the fastest growing environmental challenge now facing our oceans, driven by the exponential growth in the use of this substance over the last 70 years. Plastics are versatile with properties that make them ideal for many applications. This has led to lifestyles where disposability, as opposed to recycling and re-use, remains attractive. It is estimated that around 50% of plastic is used just once and thrown away.4 We are now producing nearly 300 million tons of plastic every year, half of which is for single use.5 In 2010, it was estimated that 275 million metric tons of plastic waste was generated in 192 coastal
1 * Professor, UWA Law School and UWA Oceans Institute, The University of Western Australia. Gabrielle Weule, ‘Plastic and how it affects our oceans’,ABC Science, (Web Page, 27 February 2017)
2 (2019) 4 Perth International Law Journal Platforms, Plastics and Parasites countries, with 4.8 to 12.7 million metric tons ending up in the ocean.6 The extent of the problem is therefore clear. Plastics have been found in the coastal zone and far out to sea, as well as at different depths.7 They impact directly on marine species through entanglement and ingestion. Species affected include fish, seabirds, marine mammals, and reptiles such as turtles, as well as invertebrates, and in turn this affects human health.8 Negative effects on the environment have also been recorded through rafting, where species are transported across the ocean on plastic debris, and although plastics tend to float because of their low density, they have been found throughout the water column and on the seabed where they can smother living organisms.9 These impacts have been recorded for over 40 years but have become more prevalent with expanding human populations, plastic production and ubiquitous usage.10 Plastics found in the oceans originate from multiple sources, including inadequate waste management practices, resulting in land-based marine pollution and discard from ships. These pollutants can be macroplastics (e.g. plastic bags and water bottles), or primary (e.g. from cosmetic products) and secondary microplastics (fragments of original products). The complexity of the issues – from manufacturing, transport, commercial use, re-use, recycling and waste disposal – make legal regulation a challenge. To date, plastic debris has been regulated at the international level through treaties that prohibit the deliberate dumping of waste and accidental spills, as well as domestic laws which implement these obligations and manage the coastal zone and waste management regimes. However, no international law sets standards for land-based marine pollution and no existing regime covers the plastics lifecycle from production to consumption, including reducing, re-using and recycling materials. As will be explored below, recent research has suggested potential governance options.
B Parasites Marine pests are foreign organisms transported from one location to another unintentionally. Sometimes, they are relatively benign or die en route, others may be alien invasive species, impacting significantly on local wildlife, industries and human health.11 As noted above, non-indigenous species can drift on plastic marine debris, but other vectors include their transport as ‘hitchhikers’ adhering to the hulls of vessels (bio- fouling) or they may be released into foreign waters during the discharge of water taken on board to stabilise ships (ballast water). These invaders can be molluscs, crustaceans,
6 Jenna R Jambeck et al, ‘Plastic waste inputs from land into the ocean’ (2015) 347(6223) Science 768, 770. 7 MH Depledge et al, ‘Plastic litter in the sea’ (2013) 92 Marine Environmental Research 279, 279. 8 Juliana A Ivar do Sul, Monica F Costa, ‘The present and future of microplastic pollution in the marine Environment’ (2014) 185 Environmental Pollution 352, 352-364. 9 C&R Consulting for The Department of the Environment, Water, Heritage and the Arts, Impacts of plastic debris on Australian marine wildlife (Final Report, 19 June 2009). 10 Edward J Carpenter and KL Smith Jr, ‘Plastics on the Sargasso sea surface’ (1972) 175 (4027) Science 1240, 1241. 11 Nicholas Bax et al, ‘Marine invasive alien species: a threat to global biodiversity, Marine Policy 27(4) (2003) 313.
(2019) 4 Perth International Law Journal 3 Erika Techera worms, and algae or a variety of microorganisms. In order to reduce the accidental transport, anti-fouling strategies have been employed including the application of coatings to the underside of vessels. These too can have negative environmental impacts because of the biocides used in the products.12 Ballast water is a necessary part of global shipping as it is used to balance vessels and ensure safe transport. The discharge of ballast water has been a matter of concern for some time because of the species that can be taken up in water from one location and then discharged at another. In contrast to bio-fouling, ballast water management has received global legal attention, as will be explored below. As with other forms of marine pollution, such as plastics, the problems are complex and the governance approaches likely to be the same - preventing or reducing the transport of species, managing them once they have been found, eradicating introduced species and restoring species and environments that may have been damaged by them.
C Offshore infrastructure Marine pollution from oil spills is one area where positive developments can be highlighted. Whilst the movement of petroleum products by sea has continued to increase, oil spills have decreased both in terms of the number of accidents and the quantity of oil lost.13 The oil and gas industry not only faces financial and reputational risks from spills, but also the treatment of offshore infrastructure when it comes to the end of its field life. The petroleum industry first emerged in the US in the 1920s but much later in other countries such as Australia, where it was not until the 1970s that it really expanded.14 Much of this infrastructure is now aging and will shortly need to be decommissioned.15 Platforms are just one type of offshore infrastructure that needs to be decommissioned; offshore oil and gas extraction involves rigs, pipelines and platforms, all of which need to be disposed of during the decommissioning process. Although at the time the construction contracts for infrastructure were entered into their terms favoured complete removal at the end of life, more recently marine science has demonstrated that in some cases artificial reefs have formed around the legs of oil rigs and along pipelines, and these are providing ecosystem services.16 Their removal could be more harmful than beneficial. Furthermore, construction was assisted by gravity as structural elements were lowered to the ocean floor; reversing this process can be technically challenging and in some cases impossible. Contemporary research has also demonstrated the value of artificial reefs and decommissioned infrastructure could
12 Katherine A. Dafforn, John A. Lewis and Emma L. Johnston, ‘Antifouling strategies: History and regulation, ecological impacts and mitigation’ (2011) 62 Marine Pollution Bulletin 453. 13 Our World Data (Max Roser), Oil Spills,
4 (2019) 4 Perth International Law Journal Platforms, Plastics and Parasites be re-used for this purpose.17 End-of-life options therefore include not only complete removal, but also in situ decommissioning leaving the infrastructure in place, removal and relocation offshore, as well as partial removal.18 The international law in this area favours complete removal although, as will be explored below, there is a possibility for approval of in situ decommissioning and the re-use of end of life infrastructure. At the national level, varying approaches have been taken, with the US adopting a rigs-to-reefs approach, whereas in Europe offshore infrastructure must be removed and any artificial reefs can only be made from new materials.19 Therefore, unlike the issues of marine debris, there is the possibility of safely disposing of waste infrastructure at sea, allowing it to benefit rather than hinder marine ecosystems.
III LEGAL RESPONSES The three issues raised above are issues of waste disposal and each can lead to marine pollution. Although the legal responses to them differ considerably, the starting point is common - the UN Convention on the Law of the Sea (UNCLOS).20 UNCLOS includes a number of relevant provisions. Most significant is Part XII on the ‘Protection and Preservation of the Marine Environment’ which includes both general and specific obligations to prevent, reduce, and control pollution. In particular, Article 194 requires States to take all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using . . . the best practicable means at their disposal and in accordance with their capabilities. In order to meet this obligation, States have joined together to adopt global treaties, most significantly in terms of deliberate dumping of waste, accidental pollution from shipping, and more recently, ballast water management. Land-based marine pollution has not resulted in any binding multi-national legal instrument, and nor has the issue of bio-fouling and the resultant introduction of foreign organisms.
A Dumping UNCLOS Article 210 requires States to adopt laws, regulations and other measures to prevent, reduce and control pollution of the marine environment by dumping.
17 David Whitmarsh et al, ‘Marine habitat modification through artificial reefs off the Algarve (southern Portugal): an economic analysis of the fisheries and the prospects for management’ (2008) 51 Ocean & Coastal Management 463. 18 Paul Ekins, Robin Vanner, and James Firebrace, Decommissioning of Offshore Oil and Gas Facilities: Decommissioning Scenarios: A comparative Assessment Using Flow Analysis (Report, Policy Studies Institute, March 2005). 19 Erika Techera and John Chandler, ‘Offshore installations, decommissioning and artificial reefs: Do current legal frameworks best serve the marine environment?’ (2015) 59 Marine Policy 53. 20 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) (UNCLOS).
(2019) 4 Perth International Law Journal 5 Erika Techera
UNCLOS encourages States to adopt global rules, standards and procedures through competent organisations, and to prohibit dumping in national waters and EEZs without prior informed consent of the coastal State. The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) was adopted in response and promotes the effective control of all sources of intentional marine pollution, requiring all practicable steps to be taken to prevent pollution of the sea by dumping of wastes and other matter.21 It has been ratified by 87 State parties and therefore is binding on less than half the world’s nations. The more recent 1996 London Protocol prohibits the dumping of all waste unless listed as able to be disposed of at sea; only 48 States have ratified the Protocol.22 The regime operates to prevent the deliberate dumping of plastics and other waste, although ‘platforms’ and ‘organic waste of natural origin’ are included under Annex I of the London Protocol as being matter that may be considered for dumping provided floating material and anything capable of producing pollution has been removed. This regime may work to facilitate in situ decommissioning of offshore infrastructure for the benefit of the marine environment, but risks harm to the oceans with respect to dumping of waste containing organic alien species.
B Shipping UNCLOS also refers to pollution from ships, and Article 211 calls upon States to establish international rules and standards and promote routing systems to minimise threats. The 1978 Protocol to the International Convention for the Prevention of Pollution from Ships (MARPOL) has been the principal international response to accidental and incidental pollution from vessels (which includes fixed or floating structures as well as ships) through the establishment of discharge standards, vessel design standards and navigation restrictions.23 Annex V of MARPOL is critical in controlling sources of marine debris from ships as it restricts ‘at sea discharge of garbage and bans at sea disposal of plastics and other synthetic materials such as ropes and fishing nets, with limited exceptions’. Annex V also refers to ‘special areas’ where discharge regulations are far stricter. The question of adherence to the law is a vexed one with studies demonstrating widespread breaches.24 In order to enhance effectiveness, Annex V also requires States to provide adequate port reception facilities to allow for safe disposal of garbage, which may be challenging for many developing States.
C Land-based marine pollution In addition to the general obligation in Article 194, UNCLOS also refers specifically to land-based marine pollution. UNCLOS requires States to adopt laws, regulations and
21 Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter, opened for signature 29 December 1972, 1046 UNTS 120 (entered in force 30 August 1975) (London Convention). 22 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature 11 July 1996, 36 ILM 1 (entered into force 24 March 2006). 23 International Convention for the Prevention of Pollution from Ships (1973) and the 1978 Protocol are read as a single instrument known as MARPOL, opened for signature 17 February 1978, 17 ILM 246 (entered into force 2 October 1983). 24 For example, Madeleine M Jones, ‘Fishing debris in the Australian marine environment’ (1995) 30(1) Marine Pollution Bulletin 25.
6 (2019) 4 Perth International Law Journal Platforms, Plastics and Parasites other measures ‘to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures’.25 Furthermore, States are to adopt and enforce national laws and implement international standards ‘to prevent, reduce and control pollution of the marine environment from land- based sources’.26 Although two international conventions prevent dumping of garbage (including plastics) from ships,27 and regulate the transboundary movement of plastic waste,28 the only land-based marine pollution instrument remains soft law.29 The Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (1995) focuses on identifying the sources of pollution, priorities in any given context, management objectives, strategic options and impacts.30 In addition, national programmes of action are required. Regional Seas Programmes operate in different areas around the world, and the first regional land-based pollution agreement related to the Mediterranean was adopted in 1980: Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-based Sources.31 Others have since followed.32 Given that one of the most significant sources of marine debris is from the land, the lack of a global, binding treaty that would set standards for waste management and alternative disposal, and obligations to prevent land-based marine pollution, is concerning.
D Alien and invasive species Other relevant UNCLOS provisions include Article 196, which calls upon States to take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from … the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes. Again, this has resulted in domestic legal developments but no focused international instrument. Instead, the global community has adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (Ballast Water Convention), which is aimed at preventing the spread of harmful organisms by establishing standards and procedures for the management and control of ships’ ballast
25 UNCLOS Article 207 (n 20). 26 UNCLOS Article 213 (n 20). 27 London Convention (n 21). 28 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, opened for signature 22 March 1989, 1673 UNTS 57 (entered into force 5 May 1992) (Basel Convention). 29 Global Programme of Action for the Protection of the Marine Environment from Land-based Activities, 1995. 30 United Nations Environment Programme, ‘The Global Programme of Action for Protection of the Marine Environment from Land-based Activities’ (Presentation)
(2019) 4 Perth International Law Journal 7 Erika Techera water.33 Under the Convention, all international shipping is required to manage ballast water and sediments to a certain standard (phased in over time), applying a ship-specific ballast water management plan. All ships will also have to carry a ballast water record book and an international ballast water management certificate. Eventually, most ships will need to install an on-board ballast water treatment system, but initially ships will exchange ballast water mid-ocean. No such binding regime has emerged for alien invasive species in general, nor bio- fouling in particular. In addition to the UNCLOS provisions above, Article 8(h) of the Convention on Biological Diversity requires States as far as possible and as appropriate, to ‘prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species’.34 In addition, the IUCN has developed Guidelines that focus on raising awareness, identifying management options, implementing legal frameworks and undertaking further research on alien invasive species.35 Several other relevant instruments have been adopted, but the only binding law regulates the use of anti-fouling substances, rather than bio-fouling itself.36 This Treaty regulates anti-fouling systems on ships, and seeks to prevent negative impacts from the use of such systems and biocides, restricting the use of some substances which can leach into seawater and impact on marine species and/or enter the food chain. Whilst the International Maritime Organization (IMO) has adopted some relevant guidelines, again these are not legally binding.37 The Guidelines draw attention to the importance of implementing a biofouling management plan, including an anti-fouling system and operational maintenance to prevent biofouling. This mix of binding and non-binding instruments is neither comprehensive nor cohesive. There is clearly scope for international hard law to set standards and provide principles as a foundation for the development of domestic law and regional responses. E Platforms The matter of the disposal of offshore infrastructure at the end of its life has been treated slightly differently. UNCLOS Article 210, outlined above, applies to the deliberate disposal of infrastructure. In addition, Articles 206 and 208 have some application. More specifically, UNCLOS Article 60 provides that any infrastructure which is ‘abandoned or disused shall be removed … taking into account any generally accepted international standards established in this regard by the competent international organisation’. UNCLOS does therefore allow for partial removal of offshore installations through the adoption of international standards by the IMO. In 1989 the IMO developed soft law (non-binding) Guidelines and Standards for the Removal of Offshore Installations
33 International Convention for the Control and Management of Ships’ Ballast Water and Sediments, opened for signature 16 February 2004, IMO Doc. BWM/CONF/36 (entered into force 8 September 2017). 34 Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) (CBD). 35 International Union for Conservation of Nature, Guidelines for the Prevention of Biodiversity Loss Caused by Alien Species, approved by the 51st Meeting of the IUCN Council, Gland Switzerland, February 2000. 36 International Convention on the Control of Harmful Anti-Fouling Systems on Ships, opened for signature 5 October 2001, T.I.A.S. No. 12-11121 (entered into force 17 September 2008). 37 International Maritime Organization, Marine Environment Protection Committee, Guidelines for the control and management of ships’ biofouling to minimize the transfer of invasive aquatic species, Resolution MEPC.207(62), 15 July 2011.
8 (2019) 4 Perth International Law Journal Platforms, Plastics and Parasites and Structures on the Continental Shelf and in the Exclusive Economic Zone.38 Section 1.1 of the Guidelines repeats the UNCLOS position that offshore installations on any continental shelf or in any EEZ are to be removed, except where non-removal or partial removal is consistent with the Guidelines and Standards. Section 2.1 requires a case-by- case evaluation prior to any decision to allow offshore infrastructure to remain on the sea-bed. Significantly, the evaluation criteria also refer to ‘determination of a new use or other reasonable justification for allowing the installation or structure or parts thereof to remain on the sea-bed’. It would appear that where a ‘new use’ can be identified, State parties to UNCLOS are not obliged to remove all abandoned and disused offshore installations. Section 2.4 refers to the process for allowing an offshore installation or structure to remain in situ. Although a detailed process is not included, mention is made of specific plans ‘to monitor the accumulation and deterioration of material left on the sea-bed’. It is therefore clear that the international legal regime favours removal of obsolete infrastructure but does not prohibit in situ decommissioning.39
IV ANALYSIS The three case studies explored above all relate to a different waste management issue: plastics, alien and invasive species and end-of-life infrastructure. These issues all arise due to anthropogenic processes of globalisation, industrialisation and modernisation, and arguably are a product of the lack of holistic thinking. Too frequently, the law has reacted to an environmental challenge as it arose, rather than incorporating whole-of-lifecycle planning. The legal responses to the three case study challenges have each been different, none is completely satisfactory, and there are remaining gaps and challenges. Whilst it is clear that much less was known about the range and extent of negative impacts in the past, if the law is to keep pace with expanding activities and safeguard environmental health, it must evolve in response. It is clear that there is no regime governing plastics throughout their whole of lifecycle. Reduction, recycling and re-use is not mandated, and as plastics are cheap and durable their widespread utilisation has resulted in a major pollution problem affecting species, habitats and ultimately human health. Furthermore, the extent of the pollution risk has not been fully considered until recently and the polluter pays principle has not been applied effectively to the manufacturer, waste manager or consumer. Therefore, ways must be found to incentivise a reduction of production, as well as recycling and re- use, and to require those with responsibility for the problem to clean-up and restore the environment. International law has an important role to play here. For example, a global regime could address the governance gap in relation to land-based marine pollution and set standards for waste management more broadly. In addition, specifically responding to the problem of plastics, suggestions include the adoption of a modified version of the Montreal Protocol incorporating principles of prevention, precaution and the polluter
38 International Maritime Organization, 1989 Guidelines and Standards for the Removal of Offshore Installations and Structures on the Continental Shelf and in the Exclusive Economic Zone, IMO Resolution A.672(16), 19 October 1989. 39 Techera and Chandler (n 19).
(2019) 4 Perth International Law Journal 9 Erika Techera pays.40 As with ozone-depleting substances, the most concerning types of plastics may have substitutes, but industry needs time to invent them and developing countries need a phase-in period. Other options include the creation of a global fund to help governments finance legacy plastics issues,41 and/or a global extended producer responsibility scheme to engage industry and incentivise recycling.42 Alien species transported by vessels on their hulls or in ballast water can devastate local organisms and find their way into the human food chain. The initial responses to the problem, the application of anti-fouling materials to ships’ hulls, can create new environmental risks, so prevention of build-up of biological material needs to be encouraged and safe treatment of ballast water and hull maintenance ensured. The Ballast Water Convention only came into force in September 2017 and its effectiveness in preventing the introduction of alien species has yet to be seen. Arguably a more comprehensive response is needed which addresses both ballast water and bio-fouling.43 Given the recent adoption of the Ballast Water Convention, an enforceable treaty in relation to bio-fouling could also be developed. In particular, an international treaty could harmonise regional approaches, which are likely to remain important given the problem is largely driven by international shipping trade. Again, a more holistic approach could be taken that requires, for example, those responsible for the introduction of alien species to pay for removal and restoration costs. The end-of-life disposal of offshore platforms and pipelines were the subject of consideration at the time of approval for construction. Limited knowledge at that time indicated the best approach would require the operator to completely remove the structures, but it now appears that this may not be the best solution. Again, this is an area where law reform is needed, to incorporate new knowledge and novel options for legitimate disposal, including re-use and recycling. Decommissioned offshore infrastructure presents a unique opportunity rather than just being a growing pollution concern. Much offshore infrastructure in Australia and South East Asia is shortly to be decommissioned and, at one level, simply requiring its removal would not be catastrophic for the marine environment. However, given the complexity and cost, there is a risk that some infrastructure would not be removed at all, but left in place in a non- decommissioned state. This outcome is undesirable given the potential damage that may be caused by residual oil and other substances left in pipelines and unplanned erosion of infrastructure. Even where infrastructure is removed, there may be a lost opportunity to enhance the marine environment through partial decommissioning and re-use of equipment as artificial reefs. Therefore, enhanced governance would be valuable, providing greater guidance, more clarity and facilitating sharing of best practice. To deal with the legacy issue, standards could be adopted that set out the circumstances in which partial in situ decommissioning could be feasible, detailed processes to be adopted for any such activities and liability options should damage occur. For future offshore infrastructure projects (which could be petroleum or renewable energy-related)
40 Karen Raubenheimer and Alistair McIlgorm, ‘Is the Montreal Protocol a model that can help solve the global marine plastic debris problem?’ (2017) 81 Marine Policy 322. 41 Karen Raubenheimer and Alistair McIlgorm, ‘Can a global fund help solve the global marine plastic debris problem?’ (2018) 5(1) Journal of Ocean and Coastal Economics. 42 Karen Raubenheimer and Niko Urho, ‘Rethinking global governance of plastics – The role of industry’, (2020) 113 Marine Policy 103802. 43 Bax et al (n 11) 317.
10 (2019) 4 Perth International Law Journal Platforms, Plastics and Parasites standardised contractual arrangements and model clauses could also be developed. All three case studies highlight the need for action to address the legacy pollution problems, and to enhance forward planning and future-proofing. The challenges explored arise from industrialisation and utilisation of the oceans and the problems now faced are in part a reflection of the lack of whole-of-lifecycle planning. More holistic approaches would facilitate legal frameworks that are fit for purpose. All three areas have benefited from greater scientific and technological developments since the industries began, and legal frameworks must respond to this new information. Set out above are some options for law reform, but they all require concerted effort by the international community together with considerable political will on the part of national governments.
V CONCLUSION The three case studies considered above highlight current marine pollution and ocean waste problems. None of these issues are likely to dissipate in the near future and therefore the challenges must be addressed. These are global concerns caused by contemporary industries and modern lifestyles. Solutions will require action by governments, industries and consumers. Solutions are likely also to involve the development of new technologies, acquisition of marine scientific information, sociological research and innovative governance approaches. Although responses from multiple disciplines will be needed, there is a significant role for international law to play in preventing, managing and removing threats and risks, as well as setting new standards and incentivising behavioural change.
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12 (2019) 4 Perth International Law Journal Direct Participation in Hostilities
DIRECT PARTICIPATION IN HOSTILITIES: BETWEEN A ROCK AND A HARD PLACE
ALESSANDRO SILVESTRI*
ABSTRACT Modern trends of warfare have witnessed the increasing involvement of civilians in conflict dynamics. This rising phenomenon has sparked considerable discussion in the realm of International Humanitarian Law (‘IHL’), which has traditionally protected civilians from the dangers of warfare through the principle of distinction.1 The response of IHL to these trends is Direct Participation in Hostilities (‘DPH’), which foresees that civilian protection in warfare could be suspended ‘unless and for such time as’ a civilian takes a ‘direct part in hostilities’.2 This paper aims to unpack the theoretical and practical underpinnings associated with DPH and provide a snapshot of the issues that vex the practical application of DPH on the battlefield. Furthermore, this paper will critically explore the main attempt by the international community to address these issues, namely the 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities (‘Guidance’), which excelled in its logical and structured approach to the matter but ultimately failed in providing solutions to the problems it highlighted.
I INTRODUCTION International Humanitarian Law (‘IHL’) has developed throughout the years as the main instrument to find a balance between military necessity of belligerent parties during ongoing conflicts and ‘requirements of humanity’.3 One of the main pillars upon which this balance could be found is the ‘principle of distinction’, which forces belligerent parties to distinguish at all times between civilians and combatants, directing military attacks solely on the latter.4 However, trends of modern warfare have underlined how
1 * PhD Candidate in International Humanitarian Law at the University of Western Australia. International Committee of the Red Cross, ‘Customary IHL Database’, Rule 1: The Principle of Distinction between Civilians and Combatants, (Web Page)
(2019) 4 Perth International Law Journal 13 Alessandro Silvestri civilians are increasingly involved in conflict dynamics, blurring the line between civilians and combatants.5 The response of the international community is to be found in the first two Additional Protocols to the Geneva Conventions (‘API’ and ‘APII’), which state that civilians are protected under IHL ‘unless and for such time as they take a direct part in hostilities’.6 The concept of Direct Participation in Hostilities (‘DPH’), therefore, has gradually become the key to assess these modern trends of civilian participation and judge potential acts or behaviours that could temporarily suspend the general protection that IHL affords to civilians. The goal of this paper is to provide a snapshot of the subject and inform the reader of both the theoretical and practical underpinnings of civilian participation in hostilities, underlying potential issues and the efforts of the international community to address them, most notably the Interpretive Guidance on the Notion of Direct Participation in Hostilities (‘Guidance’). This scope will be achieved in two main sections. This paper will firstly explore the background of modern warfare that has witnessed a shift from isolated battlefields to urban settings, which resulted in an unprecedented mingling of civilians and combatants, with the former now being able to play pivotal roles in conflict dynamics. Second, this paper will introduce the concept of ‘Direct Participation in Hostilities’ and explore the legal and practical entailments that are associated with it. In particular, the grey areas stemming from the interpretation of the provision will be underlined, most notably the difficulty in identifying a line between ‘direct’ and ‘indirect’ participation. The final section will critically assess the most important effort to date by the international community to address this concept, the 2009 Guidance, emphasising its important role in structuring the issue in logical and thematic order but ultimately failing to provide solutions to move past the issues that it identified.
II CIVILIANS IN WARFARE Means and methods of warfare have considerably changed and evolved throughout the centuries. The old modalities of conflict, perhaps culminated in the World Wars, carried a clear distinction between actors involved in the ongoing hostilities – state combatants – and those who were not, most notably civilians.7 Furthermore, conflicts were fought between state armies in locations that were geographically distant from urban centres and civilian-populated areas, entailing it would have been difficult and unlikely to witness a mix of combatants and civilians on the battlefield.8 Therefore, this tapestry of warfare facilitated the application of the legal principle of distinction, which lies at the core of IHL. Distinction is the instrument that emanated from IHL to shield civilians from the dangers and brutality of warfare, forcing belligerent parties to distinguish at
5 Damien van der Toorn, ‘Direct Participation in Hostilities: A Legal and Practical Road Test of the International Committee of the Red Cross’s Guidance through Afghanistan’ (2010) 17 Australian International Law Journal 7. 6 API art 51(3); APII art 13(3). 7 Charles Garraway, ‘Changing Character of the Participants in War: Civilianization of Warfighting and the Concept of “Direct Participation in Hostilities”’ (2011) 87 International Law Studies U.S. Naval War College 177, 178; Cynthia Marshall, ‘Civilians with Skin in the Game: The Law of War Manual’s Rejection of the ICRC Guidance on Direct Participation in Hostilities’ (2017) 225(2) Military Law Review 259, 260. 8 Emily Camins, ‘The past as prologue: the development of the ‘direct participation’ exception to civilian immunity’ (2008) 90(872) International Review of the Red Cross 853, 853.
14 (2019) 4 Perth International Law Journal Direct Participation in Hostilities all times between combatants and civilians, and to direct all military operations solely against the former.9 The corollary of this IHL pillar is that ‘[t]he civilian population and individual civilians shall enjoy general protection against dangers arising from military operations’.10 The legal extension of protection to the civilian population, alongside with other IHL principles, namely proportionality and military necessity, has placed numerous constraints over the means and methods of warfare employed by belligerent forces, which have no carte blanche in their conduct of military operations and must account at all times for the presence of civilians.11 The moral and ethical assumption underpinning the principle of distinction is exemplified in the dual dichotomy – civilian-innocent and combatant-threat – which serves its purpose if the dichotomies are fulfilled. Means and methods of warfare, however, have transformed throughout the years. Among the many changes that conflicts have witnessed, it is the increasing permeation of civilians within the dynamics of warfare that has proven to be a true ‘revolution in military affairs’.12 In other words, contemporary warfare has seen the line between civilians and combatants blur, with civilians gradually playing more important roles in the conduct of military operations.13 In particular, the number of civilians taking up arms and participating in hostilities is rising, accompanied by the growing outsourcing of traditional military tasks, such as maintenance and operation of military equipment, to civilian contractors.14 It is then clear that the dual dichotomy of civilian-innocent and combatant-threat is no longer completely fulfilled according to the rules of modern warfare. This calls foran
9 International Committee of the Red Cross (n 2); Yoram Dinstein, ‘Distinction and the Loss of Civilian Protection in Armed Conflict’ (2008) 84 International Law Studies 183; Yoram Dinstein, ‘The Principle of Distinction and Cyber War in International Armed Conflicts’ (2012) 17(2)Journal of Conflict & Security Law 261; Igor Primoratz, Civilian Immunity in War (Oxford University Press, 2007). 10 API art 51(1); APII art 13(1); International Committee of the Red Cross, ‘Customary IHL Database’, Rule 5: Definition of Civilians (Web Page)
(2019) 4 Perth International Law Journal 15 Alessandro Silvestri appropriate exploration of the evolving role of civilians and the legal avenues that are available to address this growing phenomenon.
III DIRECT PARTICIPATION IN HOSTILITIES A Theoretical Snapshot To address the increasing civilian involvement in hostilities, the international community responded in 1977 with the legal instruments embedded in API and APII which explored new legal avenues for IAC and NIAC respectively. API states that: ‘Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities’.15 Civilian general protection is, therefore, conditional. The framework designed to shield civilians from the dangers of warfare can be suspended when and if civilians engage in acts or behaviours that amount to ‘direct participation’ and will be regained once these acts or behaviours cease.16 While the concept may appear straightforward, its practical implications on the battlefield could pave the way for interpretational issues. For instance, a civilian taking up arms and shooting at a combatant undoubtedly represents a lucid example of direct participation. However, driving a truck containing ammunitions that would be then used in the ongoing hostilities has divided experts and shows how fragile the line between direct and indirect participation could be.17 Furthermore, doubts also arise concerning the ‘unless and for such time as’ requirement contained in the provision. Specifically, it is unclear whether a civilian would immediately regain protection under IHL seconds after, for instance, detonating a bomb near a military base. The need becomes apparent, therefore, to explore whether the international community has agreed on criteria or guidelines that could be used to aid assessments of DPH acts or behaviours and translate law onto the battlefield. The short answer to this question is, unfortunately, a negative one. As stated by the Customary IHL Study of the ICRC, ‘a clear and uniform definition of direct participation in hostilities has not been developed in State practice’.18 There have been attempts by academics and experts to frame the concept and pinpoint the main issues that have prevented the international community from finding agreement on a comprehensive and universal definition of DPH.19 Most notably, some scholars have argued that the legal instruments of DPH contained in articles 51(3) API and 13(3) APII are not sufficiently equipped to deal with the bulk of civilian participation in modern warfare which, in turn, would explain why the international community has not been able to find common ground in the understanding of DPH.20
15 API art 51(3); APII art 13(3). 16 Nils Melzer, ‘Direct Participation in Hostilities: Operationalizing the ICRC’s Guidance’ (2009) 103 American Society of International Law Proceedings 299, 300 (‘Direct Participation’). 17 Michael N Schmitt, ‘“Direct Participation in Hostilities” and 21st Century Armed Conflict’ in Horst Fischer (ed), Crisis Management and Humanitarian Protection (Berliner Wissenschafts-Verlag, 2004) 510, 512. 18 International Committee of the Red Cross, ‘Customary IHL Database’, Rule 6: Civilians’ Loss of Protection from Attack (Web Page)
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B The Mixed Results of International Efforts – The Interpretive Guidance on the Notion of Direct Participation in Hostilities The growing unease of the international community vis-à-vis DPH has prompted the ICRC, traditionally the main actor in the field of IHL, to gather a group of leading scholars and task them with developing a framework for the understanding of DPH that resulted in the 2009 Guidance.21 While this document is non-binding by nature, it still carries a considerable degree of importance and influence across the globe due to the pivotal position of the ICRC in IHL and the involvement of leading scholars and experts in the field. Before exploring the main arguments of the Guidance, it is worth pointing out that this work has attracted significant animosity from scholars and experts in the field.22 However, the unprecedented and greatly underestimated success of the Guidance was the opportunity it presented to pinpoint the issues of DPH in clusters and direct the attention of the international community to these issues in a more pro-active manner. There had been no attempt before the Guidance to create a comprehensive work that listed and explored all the practical problems associated with DPH. In doing so, the Guidance was able to lay the groundwork for theorising potential solutions to these issues and de facto facilitating future studies and projects on the matter. In particular, there are three clusters of issues identified in the Guidance – legal definition of civilians, ‘direct’ participation (rather than indirect) and the temporal jurisdiction of DPH.
1 Who is considered a civilian for the purposes of the principle of distinction? As explored in the previous section, the line between civilians and combatants has increasingly blurred through the years. Furthermore, this problem is amplified in the context of NIAC, where members of organised armed forces lack a proper definition under IHL, creating a de facto legal limbo in the application of IHL to organised armed forces and their members.23 Therefore, there was a profound need to determine criteria to assess the legal status of all actors involved in conflict. The Guidance has responded to this issue by upholding the ‘mutual exclusiveness’ dichotomy between civilians and combatants and introducing the concept of ‘Continuous Combat Function’ as a criterion to distinguish between civilians who commit a DPH act and members of
21 Nils Melzer, International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Guidance, 2009) (‘Interpretive Guidance’). 22 Schmitt, ‘The Interpretive Guidance Critical Analysis’ (n 14); Michael N Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (2010) 42 International Law and Politics 697 (‘Deconstructing Direct Participation’); Kenneth Watkin, ‘Opportunity Lost: Organized Armed Groups and the ICRC Direct Participation in Hostilities Interpretive Guidance’ (2010) 42 New York University Journal of International Law and Politics 641; Marshall (n 7). 23 NIAC, by definition, are fought by at least one non-state party, entailing the presence of an organised armed group as a belligerent force in the conflict. Given the relatively recent rise of NIAC, the international community has not been able to properly define organised armed forces and their members. See Geoffrey Corn and Chris Jenks, ‘Two Sides of the Combatant Coin: Untangling Direct Participation in Hostilities from Belligerent Status in Non-International Armed Conflicts’ (2011) 33(2)University of Pennsylvania Journal of International Law 313.
(2019) 4 Perth International Law Journal 17 Alessandro Silvestri organised armed forces.24 These recommendations have been met with criticism by the international community, which considered them utterly unfeasible on the battlefield.25
2 What conduct amounts to direct participation in hostilities? The second cluster navigates the practical difficulties in drawing a line between direct and indirect participation in hostilities. Throughout the years, the international community had made a few suggestions with respect to specific acts or behaviours that amount to direct participation. For instance, using weaponry, serving as intelligence agents, or participating in sabotage missions are clear examples of DPH.26 Conversely, the sale of food supplies or medications, financial aids, and propaganda have traditionally been viewed as forms of indirect participation in hostilities.27 The Guidance has attempted to contribute to this debate by designing three cumulative criteria to assess civilian behaviours on the battlefield – threshold of harm, direct causation, and belligerent nexus.28 The international community has responded with uncertainty regarding the practical feasibility of these criteria and opposed the criteria with the argument that it entails an exaggerated degree of under-inclusiveness in assessing civilian DPH.29
3 What modalities govern the loss of protection against direct attack? Finally, the Guidance gathered key issues and questions such as conditions of onset and termination of DPH, consequences of regaining immunity, precautions in situations of doubt, and application of force against targets.30 The international community has met the recommendations advanced by the Guidance in this regard with fierce criticism. Parks, for instance, has stated these criteria have ‘no mandate, no expertise and [are] legally incorrect’.31 The majority of critiques, however, were advanced specifically against the Guidance’s recommendations on the loss of protection against direct attack. The international community expected the Guidance to solve the so-called ‘Revolving
24 For pragmatic reasons of word-limit, it falls outside of the scope of this paper to explore the concepts of ‘mutual exclusiveness’ and ‘Continuous Combat Function’. For further information, see Melzer, Interpretive Guidance (n 21) 9; Melzer, ‘Direct Participation’ (n 16) 300. 25 Watkin (n 22) 649; Bill Boothby, ‘And for Such Time as: The Time Dimension to Direct Participation in Hostilities’ (2010) 42 New York University Journal of International Law and Politics 741, 741-2; Schmitt, ‘Deconstructing Direct Participation’ (n 23) 697-8. 26 Prosecutor v Strugar (Public Judgement) (International Tribunal for the Prosecution for the Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Appeals Chamber, Case No IT-01-42-A, 17 July 2008) [177] (‘Strugar’); Public Committee v Government of Israel (Judgement) (Supreme Court of Israel, Israel, Case No HCJ 769/02, 13 December 2006) (‘Public Committee’) [34]. 27 Public Committee (n 26) [34]; Strugar (n 26) [177]. 28 Melzer, ‘Interpretive Guidance’ (n 21) 46-64. 29 Schmitt, ‘Deconstructing Direct Participation’ (n 22) 720; APV Rogers, ‘Direct Participation in Hostilities: Some Personal Reflections’ (2009) 48(1-2) Military Law and the Law of War Review 143, 146; Shannon Bosch, ‘The International Humanitarian Law Notion of Direct Participation in Hostilities - A Review of the ICRC Interpretive Guide and Subsequent Debate’ (2014) 17 Potchefstroom Electronic Law Journal 998. 30 Melzer, ‘Interpretive Guidance’ (n 21) 48. 31 W Hays Parks, ‘Part IX of the ICRC Direct Participation in Hostilities Study: No Mandate, No Expertise, and Legally Incorrect’ (2010) 42 New York University Journal of International Law and Politics 769.
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Door’ phenomenon, which is the legal gap that allowed civilians to routinely engage in DPH activities and cease them to regain protection, thus the revolving door metaphor.32 However, the Guidance’s claim that the ‘Revolving Door’ phenomenon was a necessity and not a malfunction of DPH generated harsh criticism and delegitimised the influence of the Guidance in the international community.33
IV CONCLUSION Direct Participation in hostilities has been a subject that has widely vexed scholars and experts in recent years. The increasing mingling of civilians and combatants on the battlefield has created the necessity for the international community to take stock and establish guiding and deciding criteria for DPH. The scope of this paper was to provide a snapshot of the growing civilian engagement in hostilities and explore the overarching legal framework regulating this phenomenon. Particularly, it was highlighted how the law paves the way for potential grey areas that demand more specific criteria to aid its practical application on the battlefield. The most notable attempt to tackle this issue was the 2009 Guidance, which was able to narrow down the main themes associated with DPH – the legal categorisation of civilians and combatants, the meaning of ‘direct’ participation as opposed to indirect, and the modalities governing the loss of protection under IHL – most notably, the temporal jurisdiction of DPH. The outcomes of this effort are mixed. The Guidance did a remarkable job in exploring the subject in a logical and structured manner, while arguably failing at providing feasible solutions to the problems that they underlined. Finally, the foundations laid by the Guidance will serve as a starting point for future studies, which, given the relevance and significance of the subject, are needed now more than ever.
32 van der Toorn (n 5); W Hays Parks, ‘Air War and the Law of War’ (1990) 32 Air Force Law Review 163; Boothby (n 25). 33 Melzer, ‘Interpretive Guidance’ (n 21) 40; Boothby (n 25); van der Toorn (n 5).
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20 (2019) 4 Perth International Law Journal Considering the Value of International Soft Law in Addressing Environmental Problems
LAW OR NOT? CONSIDERING THE VALUE OF INTERNATIONAL SOFT LAW IN ADDRESSING ENVIRONMENTAL PROBLEMS ALEXANDER ANILE*
ABSTRACT While more than 500 multilateral environmental agreements and 200 treaty-based institutions have been created in recent decades, there has also been the emergence and continued development of ‘soft law’. Soft law is a concept that jurists grapple with because the concept is ambiguous; this paper addresses this concern by defining the term. This paper then explores the function of soft law in the development of international environmental law by examining its role in the development of customary law, its role in the development of standards, and its flexibility. Some of the criticisms of soft law are raised; these are acknowledged and rebutted. Ultimately, it is concluded that soft law is extremely valuable in addressing environmental problems.
I INTRODUCTION Earth is a marvel; there are countless extraordinarily rare features of this rocky planet that have combined to produce the conditions that sustain life.1 Irrespective of one’s beliefs as to how these conditions materialised, Earth faces a long list of environmental problems.2 The United Nations Environment Programme, in considering environmental problems, notes that human activities are ‘increasing[ly] challeng[ing]…the planet, which will result in fundamental, unprecedented[,] and unpredictable changes in the [E] arth system…’.3 International law is one means through which environmental challenges are being addressed. While more than 500 multilateral environmental agreements and 200 treaty-based institutions have been created in recent decades,4 there has also been the emergence and continued development of ‘soft law’5. Soft law is a concept that ‘jurists feel uncomfortable analyzing…’ because the concept is ambiguous; 6 this paper addresses this concern by defining the term. This paper then details the function of soft
1 *Alexander is a Juris Doctor candidate at the University of Western Australia, he also holds a holds a Bachelor of Arts (Law and Society & Management) from the University of Western Australia. Ved Nanda and George Pring, International Environmental Law and Policy for the 21st Century (Martinus Nijhoff Publishers, nd2 ed, 2012) 3. 2 Ibid 4. 3 United Nations Environment Programme, 21 Issues for the 21st Century: Results of the UNEP Foresight Process on Emerging Environmental Issues (UNEP Foresight Process Biennial Report, 20 February 2012) 3. 4 Gaps in international environmental law and environment-related instruments: towards a global pact for the environment – Report of the Secretary-General, UN Doc A/73/419 (30 November 2018). 5 Pierre-Marie Dupuy, ‘Soft law and the International Law of the Environment’ (1991) 12 (Winter) Michigan Journal of International Law 420, 420. 6 Ibid.
(2019) 4 Perth International Law Journal 21 Alexander Anile law in the development of international environmental law, to conclude that soft law is extremely valuable in addressing environmental problems.
II WHAT IS SOFT LAW? Dupuy defines ‘soft law [as]…not yet or not only law…’.7 In other words, soft law ‘falls outside the principal sources of law…’.8 Therefore, defining soft law requires an examination of the sources of international law.9 Although the Statute of the International Court of Justice (ICJ Statute) establishes the International Court of Justice, Article 38 has evolved into a generally accepted definition of the sources of international law.10 Article 38(1)(a) of the ICJ Statute lists ‘international conventions…[as]…establish[ed] rules expressly recognized by…states…’.11 Further, the Vienna Convention on the Law of Treaties defines a treaty as an ‘international agreement governed by international law…whatever its particular designation’.12 Therefore, it is generally accepted that a treaty is international law and is binding if the states intend it to be binding,13 states being the original actors in international law.14 Article 38(1) of the ICJ Statute lists ‘international custom…[,] the general principles of law recognized by civilized nations[, and]…judicial decisions and…teachings of…publicists…’ as three further sources of international law.15 While there are ‘[a]lmost as many definitions of soft law…as there are writers about it’,16 the significant peer support for Dupuy’s definition highlights its value and justifies its use.17 However, this definition cannot stand alone. Generally, ‘the “softness” ofan instrument corresponds to the “softness” of its contents. After all, the very nature of “soft” law lies in the fact that it is not in itself legally binding…’.18 Nevertheless, when analysing international law, it is necessary to distinguish between the content
7 Ibid. 8 Mark Drumbl, ‘Actors and law-making in international environmental law’ in Malgosia Fitzmaurice, David Ong, and Panos Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar Publishing, 2010) 3, 14. 9 Ibid. 10 Timo Koivurova, Introduction to International Environmental Law (Routledge Taylor & Francis Group, 2014) 60. 11 Statute of the International Court of Justice art 38(1)(a). 12 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 2(1)(a). 13 Andrew Guzman and Timothy Meyer, ‘International Soft Law’ (2010) 2(1) Journal of Legal Analysis 171, 188. 14 Timo Koivurova, Introduction to International Environmental Law (Routledge Taylor & Francis Group, 2014) 54. 15 Statute of the International Court of Justice art38(1)(b)-(d). 16 Joseph Gold, Interpretation: the IMF and international law (Kluwer Law International, 1996) 301. 17 See, eg, Mark Drumbl, ‘Actors and law-making in international environmental law’ in Malgosia Fitzmaurice, David Ong, and Panos Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar Publishing, 2010) 3, 19; Andrew Guzman and Timothy Meyer, ‘International Soft Law’ (2010) 2(1) Journal of Legal Analysis 171, 180; Stephen Toope, ‘Formality and Informality’ in Daniel Bodansky, Jutta Brunnee, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2008) 107, 121. 18 Pierre-Marie Dupuy, ‘Soft law and the International Law of the Environment’ (1991) 12 (Winter) Michigan Journal of International Law 420, 429.
22 (2019) 4 Perth International Law Journal Considering the Value of International Soft Law in Addressing Environmental Problems and the instrument of the law because these components are not always aligned.19 Firstly, there are examples of formally non-binding instruments where the content has been so precisely defined that, aside from the usage of certain modal auxiliary verbs, provisions could be easily integrated into a binding agreement.20 Secondly, and in contrast, there are many international agreements, binding on the parties through the operation of pacta sunt servanda,21 where the substance of the phrasing is such that ‘it seems impossible to consider them as creating a precise obligation or burden…’.22 A notable example is the Convention on Long-Range Transboundary Air Pollution where the parties’ ‘shall endeavour to limit and, as far as possible, gradually reduce…’ their pollution.23 Manifestly, defining soft law facilitates subsequent evaluation of instruments.
III FUNCTION OF SOFT LAW A Development Of Customary Law It is irrefutable that soft law has developed customary law to address environmental problems.24 Soft law’s development of customary law has occurred because states choose soft law ‘when they are uncertain…whether the rules they adopt today will be desirable tomorrow[,] and when it is advantageous to allow…states…to adjust expectations in…changed circumstances…’.25 Soft law can develop into customary law because the process of making customary law is the same in international environmental law as it is in general international law.26 At the risk of simplifying an extraordinarily complex process, the custom must enjoy state practice and recognition as being binding on states,27 which when considered with the express or tacit consent of states, must
19 Ibid. 20 Pierre-Marie Dupuy, ‘Soft law and the International Law of the Environment’ (1991) 12 (Winter) Michigan Journal of International Law 420, 429. See, eg, Report of the United Nations Conference on Environment and Development, UN Doc A/ CONF151/26(Vol.I) (12 August 1992) annex I (Principles 8, 9, 12, 14). 21 Peter Lawrence and Daryl Wong, ‘Soft law in the Paris Climate Agreement: Strength or weakness?’ (2017) 26(3) Review of European, Comparative & International Environmental Law 276, 282. 22 Pierre-Marie Dupuy, ‘Soft law and the International Law of the Environment’ (1991) 12 (Winter) Michigan Journal of International Law 420, 429. See, eg, Convention on Long-Range Transboundary Air Pollution, opened for signature 13 November 1979, 1302 UNTS 217 (entered into force 16 March 1983) arts 2-6. 23 Convention on Long-Range Transboundary Air Pollution, opened for signature 13 November 1979, 1302 UNTS 217 (entered into force 16 March 1983) art 2. 24 See also Gaps in international environmental law and environment-related instruments: towards a global pact for the environment – Report of the Secretary-General, UN Doc A/73/419 (30 November 2018) 5, 7. 25 Andrew Guzman and Timothy Meyer, ‘International Soft Law’ (2010) 2(1) Journal of Legal Analysis 171, 171. 26 Pierre-Marie Dupuy, ‘Formation of Customary International Law and General Principles’ in Daniel Bodansky, Jutta Brunnee, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2008) 449, 452. 27 Arnold Pronto, ‘Understanding the Hard/Soft Distinction in International Law’ (2015) 48(4) Vanderbilt Journal of Transnational Law 941, 947.
(2019) 4 Perth International Law Journal 23 Alexander Anile be sufficient for the creation of an international custom.28 This benchmark is achieved because ‘[s]oft law establishes shared understandings that [gradually] limit the practical ability [of states] to withhold consent…’.29 Arguably there are several examples, but the least contentious is the evolution of the prevention principle.30 The contemporary prevention principle can be traced to the Stockholm Declaration,31 although its origins in other forms predate this document.32 In the aftermath of the Stockholm Declaration, multiple treaties and soft-law documents were adopted concerning various areas of international environmental law; however, they all reaffirmed the prevention principle explicitly,33 or implicitly.34 Consequently, with time, because of relevant state practice in environmental treaties and this codification, the prevention principle evolved into a ‘well-established…customary norm of international law…’.35 Further, the ICJ has, on several occasions, recognised the customary grounding of the prevention principle.36 The historical contribution of soft law to the development of customary international law, in addition to the potential for this mechanism to continue to develop customary international law addressing environmental issues, demonstrates that it is extremely valuable.
B Development Of Standards Soft law, although non-binding, through the articulation of rules and principles leads
28 Pierre-Marie Dupuy, ‘Formation of Customary International Law and General Principles’ in Daniel Bodansky, Jutta Brunnee, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2008) 449, 454. 29 Stephen Toope, ‘Formality and Informality’ in Daniel Bodansky, Jutta Brunnee, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2008) 107, 122. 30 Gaps in international environmental law and environment-related instruments: towards a global pact for the environment – Report of the Secretary-General, UN Doc A/73/419 (30 November 2018) 11. 31 Report of the United Nations Conference on the Human Environment, UN Doc A/CONF48/14/Rev1 (12 August 1992) art II(Principle 21). 32 Leslie-Anne Duvic-Paoli and Jorge Vinuales, ‘Principle 2: Prevention’ in Jorge Vinuales (ed), The Rio Declaration on Environment and Development: A Commentary (Oxford University Press, 2015) 107, 108-9. 33 See, eg, Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature 29 December 1972, 11 ILM 1294 (entered into force 30 August 1975) preamble; Convention on Long-Range Transboundary Air Pollution, opened for signature 13 November 1979, 1302 UNTS 217 (entered into force 16 March 1983) preamble; United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) arts 192-4. 34 Leslie-Anne Duvic-Paoli and Jorge Vinuales, ‘Principle 2: Prevention’ in Jorge Vinuales (ed), The Rio Declaration on Environment and Development: A Commentary (Oxford University Press, 2015) 107, 109. See, eg, Convention for the Conservation of Antarctic Seals, opened for signature 1 June 1972, 11 ILM 251 (entered into force 11 March 1978); Convention for the Conservation of European Wildlife and Natural Habitat, opened for signature 1 June 1982, UKTS 56 Cmnd 8738 (entered into force 1 November 1983); Convention on the Conservation of Migratory Species of Wild Animals, opened for signature 23 June 1979, 19 ILM 15 (entered into force 1 November 1983). 35 Leslie-Anne Duvic-Paoli and Jorge Vinuales, ‘Principle 2: Prevention’ in Jorge Vinuales (ed), The Rio Declaration on Environment and Development: A Commentary (Oxford University Press, 2015) 107, 120. 36 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para 29; Gabcikovo-Nagymaros (Hungry/Slovakia) [1997] ICJ Rep 7, para 140.
24 (2019) 4 Perth International Law Journal Considering the Value of International Soft Law in Addressing Environmental Problems to a ‘beneficial educative effect and can open up avenues for future advocacy…’.37 That is, soft law addresses environmental problems through the development of standards. Academics describe this phenomenon in various formulations but, nevertheless, there is broad agreement that it occurs.38 For example, the Article 3 of the United Nations Framework Convention on Climate Change (UNFCCC) asserts that the ‘[p]arties should protect the climate system…in accordance with their common but differentiated responsibilities and respective capabilities…’.39 While the UNFCCC is a binding instrument, the ‘should’ ensures this provision is soft law. The UNFCCC was opened for signature on the first day of the United Nations Conference on Environment and Development, which ultimately produced the Rio Declaration on Environment and Development (Rio Declaration). The Rio Declaration further acknowledged that given historical contributions, ‘[s]tates have common but differentiated responsibilities… ’.40 Subsequently, the Kyoto Protocol was adopted to strengthen the commitments of primarily developed nations and operationalised the principle.41 The principle was later identified as a significant contributor to the failure of theKyoto Protocol. 42 Nevertheless, almost two decades later, the binding obligations of parties in the Paris Agreement are qualified by the requirement that commitments ‘reflect…[parties’] common but differentiated responsibilities…’.43 A similar evolution occurred with the concept of ‘sustainable development’. Sustainable development was originally introduced as humanity’s ‘capability to transform…surroundings…[because,] if…[resources are] used wisely…[, they] can bring to all peoples the benefits of development…’.44 It has
37 Stephen Toope, ‘Formality and Informality’ in Daniel Bodansky, Jutta Brunnee, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2008) 107, 118. 38 Ilhami Olsson, ‘Four Competing Approaches to International Soft Law’ (2013) 58 Scandinavian Studies in Law 177, 182, 185; Gunther Handl, William Reisman, Bruno Simma, Pierre-Marie Dupuy and Christine Chinkin, ‘A Hard Look at Soft Law’ (1988) 82 Proceedings of the Annual Meeting (American Society of International Law) 371, 380; Gregory Shaffer and Mark Pollack, ‘Hard versus Soft Law in International Security’ (2011) 52(4) Boston College Law Review 1147, 1165. 39 United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994) art 3(1). 40 Report of the United Nations Conference on Environment and Development, UN Doc A/CONF151/26(Vol.I) (12 August 1992) annex I (Principle 7). 41 Report of the Conference of the Parties on its third session, held at Kyoto from 1 December to 11 December 1997, UN Doc FCCC/CP/1997/7/Add1 (25 March 1998) 4; Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 162 (entered into force 16 February 2005) art 10, annex B (‘Kyoto Protocol’). 42 Stephen Toope, ‘Formality and Informality’ in Daniel Bodansky, Jutta Brunnee, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2008) 107, 118. 43 Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015, UN Doc FCCC/CP/2015/10/Add1 (29 January 2016) annex(art 2(2)). 44 Report of the United Nations Conference on the Human Environment, UN Doc A/CONF48/14/Rev1 (12 August 1992) arts I(3), II(Principles 2,3,5).
(2019) 4 Perth International Law Journal 25 Alexander Anile since been included in binding obligations45 and become normative.46 These are brief examples of how soft law brings legitimacy and expertise to eventually enforce ‘norms and standards’ addressing environmental problems,47 which demonstrates its value.
C Flexibility Soft law functions to address environmental problems by being ‘flexibl[e]… [and thus encouraging] widespread participation…[, and] speed…’,48 all of which demonstrate soft law’s value.49 This flexibility is important because ‘many reasons… exist…which prevent the conclusion of a formal treaty [or binding obligation but]… do not interfere with…’ soft law.50 The flexibility of soft law is evident in its ability to achieve the widespread participation of states. The Paris Agreement substantiates this; one of the core obligations, Article 4(2), states that ‘[p]arties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions…’.51 While ‘shall’ compels mitigation measures, the last clause, ‘with the aim of’, indicates this obligation is satisfied if action is taken aimed at achieving the mitigation measures rather than actually meeting the requirements of the mitigation measures. The Paris Agreement achieved 195 signatories. In contrast, the binding obligations of the Kyoto Protocol contributed to the participation of just 83 signatories.52 A further example of state participation due to soft law is the decision of the Fourth Meeting of the Parties to the Montreal Protocol to provide for a non-compliance procedure providing parties with discretion, through the word ‘may’, to choose whether to utilise the procedure.53 The flexibility of soft law is, therefore, valuable in addressing environmental problems.
45 See, eg, United Nations Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) preamble, arts 1, 2, 6; United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994) art 2; Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973 (entered into force 1 July 1975) art 2(1). 46 Resolution adopted by the General Assembly on 25 September 2015, GA Res 70/1, UN Doc A/Res/70/1 (21 October 2015) 44; United Nations Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) art 8(e). 47 Filippo Zerilli, ‘The rule of soft law: An introduction’ (2010) 56 (Spring) Focaal – Journal of Global and Historical Anthropology 3, 10. 48 Ilhami Olsson, ‘Four Competing Approaches to International Soft Law’ (2013) 58 Scandinavian Studies in Law 177, 188. 49 Kenneth Abbott and Duncan Snidal, ‘Hard and Soft Law in International Governance’ (2000) 54(3) International Organization 421, 434. 50 Remigiusz Bierzanek, ‘Some Remarks on Soft International Law’ (1988) 17 Polish Yearbook of International Law 21, 37. 51 Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015, UN Doc FCCC/CP/2015/10/Add1 (29 January 2016) annex (art 4(2)). 52 United Nations Treaties Collection, ‘Paris Agreement’, Status as at 28-01-2019 (Web Page, 28 January 2019)
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The flexibility of soft law further achieves widespread participation through greater participation of non-state actors. This is notable because ‘there exists a significant gap in international environmental law regarding effective participation by non-[s]tate actors…’.54 Emphasis on this is evident in the Rio Declaration and the report from the United Nations Conference on Sustainable Development.55 Lastly, the flexibility of soft law is evident in its speed. The Vienna Convention for the Protection of the Ozone Layer was negotiated and rapidly became legally binding, despite scientific disagreement because it established a framework of mechanisms to approach the issue,56 including soft law provisions.57 In contrast, the Third United Nations Conference on the Law of the Sea lasted almost ten years before negotiations of the United Nations Convention on the Law of the Sea were concluded.58 The advantages of soft law’s flexibility are especially significant when one considers ‘the future development of international environmental law is likely to require more, rather than less[,]…flexibility…’, which further corroborates the value of soft law in addressing environmental problems.59
IV THE VALUE OF SOFT LAW Despite the elucidated advantages of soft law facilitating the development of international environmental law, there are significant critiques of its value. The most prevalent criticism is that soft law generates a complex web of conflicting obligations with varying legal influence.60 This web of obligations results in actors no longer being sure what rules to apply, with what force they should be applied, and what consequences they face for violations. As such, the provision of order, predictability, and stability of the international legal order are lost.61 While the number of obligations has increased, this criticism appears hyperbolic. The emergence of soft law in international environmental law occurred almost fifty years ago and the international legal system arguably still
54 Gaps in international environmental law and environment-related instruments: towards a global pact for the environment – Report of the Secretary-General, UN Doc A/73/419 (30 November 2018) 5, 35. 55 Report of the United Nations Conference on Environment and Development, UN Doc A/CONF151/26(Vol.I) (12 August 1992) annex I(Principle 10); Resolution adopted by the General Assembly on 27 July 2012: the future we want, GA Res 68/288, UN Doc A/Res/66/288 (11 September 2012) annex I(1). 56 Geoffrey Palmer, ‘New Ways to Make International Law’ (1992) 86(2) American Journal of International Law 259, 273. 57 See, eg, Vienna Convention for the Protection of the Ozone Layer, opened for signature 22 March 1985, 1513 UNTS 293 (entered into force 22 September 1988) arts 2(1), 3(1)-(2). 58 Codification Division Publications, ‘Third United Nations Conference on the Law of the Sea’, Diplomatic Conferences (Web Page, 2019)
(2019) 4 Perth International Law Journal 27 Alexander Anile provides the international legal system with order, predictability, and stability.62 Similarly, the ability of soft law to develop norms and standards has been criticised because the use of vague language is contended to ‘create the illusion of agreement and resolution…’.63 Furthermore, there is a fear soft law allows ‘pseudo-norms…[to be] smuggl[ed]…into international law…’,64 because they are easier to adopt, especially if the requirements ‘for the creation of legally binding rules can be circumvented…’.65 Based on pseudo meaning ‘sham’ and ‘norm’ meaning ‘a standard’,66 this criticism is subjective. However, advocates of norms likely would not consider them to be a sham, and the subsequent incorporation of some soft law norms into binding international law; therefore, this criticism is of limited value. Lastly, soft law’s flexibility is disputed because the way states negotiate soft law instruments can be complex, time-consuming, and costly.67 While undoubtedly true for some negotiations, this point does not fault other advantages of soft law’s flexibility. Given the enormous advantages of soft law, criticisms such as the critical challenges of environmental issues, the urgency of action, and difficulties inherent in international law 68, can be refuted.
V CONCLUSION As explored, soft law is law that is ‘not yet or not only law…’. 69 Soft law functions to develop customary international law, which is binding as a source of international law. Further, soft law develops new norms and standards that address the causes of environmental problems, implementation, and effectiveness. Soft law is a mechanism that is extremely flexible, which achieves many important outcomes. Crucially, it enables widespread participation of states and non-state actors in international instruments. ‘Law is itself an expression of the values that we trust to shape a better world…’.70 Thus, the emergence and proliferation of soft law, first in international environmental law, reflects the trust and value humanity places in soft law in addressing environmental problems.
62 Gunther Handl, William Reisman, Bruno Simma, Pierre-Marie Dupuy and Christine Chinkin, ‘A Hard Look at Soft Law’ (1988) 82 Proceedings of the Annual Meeting (American Society of International Law) 371, 383; Monika Ambrus, ‘Between Pragmatism and Predictability: Temporariness in International Law’ (2014) 45 Netherlands Yearbook of International Law 1, 1; United Nations Environment Programme, Environmental Rule of Law: First Global Report (Report, 1, 24 January 2019) 380-1. 63 Jaye Ellis, ‘Shades of Grey: Soft Law and the Validity of Public International Law’ (2012) 25(2) Leiden Journal of International Law 313, 318. 64 Remigiusz Bierzanek, ‘Some Remarks on Soft International Law’ (1988) 17 Polish Yearbook of International Law 21, 39. 65 Jaye Ellis, ‘Shades of Grey: Soft Law and the Validity of Public International Law’ (2012) 25(2) Leiden Journal of International Law 313, 320. 66 Macquarie Dictionary (online at 29 January 2019) ‘pseudo’ (def 1); Macquarie Dictionary (online at 29 January 2019) ‘norm’ (def 1). 67 Gunther Handl, William Reisman, Bruno Simma, Pierre-Marie Dupuy and Christine Chinkin, ‘A Hard Look at Soft Law’ (1988) 82 Proceedings of the Annual Meeting (American Society of International Law) 371, 389. 68 Gaps in international environmental law and environment-related instruments: towards a global pact for the environment – Report of the Secretary-General, UN Doc A/73/419 (30 November 2018) 5. 69 Pierre-Marie Dupuy, ‘Soft law and the International Law of the Environment’ (1991) 12 (Winter) Michigan Journal of International Law 420, 420. 70 Stephen Toope, ‘Formality and Informality’ in Daniel Bodansky, Jutta Brunnee, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2008) 107, 124.
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Evidently, soft law is extremely valuable in addressing environmental problems. Although there are criticisms of soft law, these have been acknowledged and rebutted. The elucidated functions of soft law, as argued in this paper, demonstrate that soft law is invaluable in addressing environmental problems.
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30 (2019) 4 Perth International Law Journal Shaky Foundations: ‘Killer Robots’ and the Martens Clause
SHAKY FOUNDATIONS: ‘KILLER ROBOTS’ AND THE MARTENS CLAUSE
MARCUS HICKLETON1∗
ABSTRACT Widely hailed as representing the ‘third revolution in warfare’, lethal autonomous weapon systems (LAWS) — also known as ‘killer robots’ — are the subject of heated debate. Contributing to this debate, in August 2018, Human Rights Watch (HRW) and the International Human Rights Clinic (IHRC) at Harvard Law School published Heed the Call: A Moral and Legal Imperative to Ban Killer Robots. The following article counters Heed the Call in arguing that, contrary to the HRW/IHRC view, the Martens Clause does not justify a preemptive ban on this emergent technology. This is because the Clause’s dual prongs — the principles of humanity and the dictates of public conscience — are not independent sources of law. On the contrary, this article concludes that these principles and dictates are merely an aid to be considered when interpreting principles of international humanitarian law. Despite this article therefore demonstrating that the Martens Clause does not justify the proposed ban on LAWS, public opposition to these weapon systems nevertheless suggests that some form of regulation might be necessary. To that end, this article proposes that a moratorium on anti-personnel LAWS would address the legitimate concerns presented by these weapon systems while overcoming the greatest obstacles posed by a ban.
I INTRODUCTION In November 2019, the United Nations (UN) Secretary-General, António Guterres, described the prospect of lethal autonomous weapon systems (LAWS) taking human life as ‘politically unacceptable and morally despicable’.2 Guterres joins a line of prominent figures and organisations calling for a ban on the popularly termed ‘killer3 robots’, broadly defined as weapon systems ‘that can select … and attack … targets without human intervention’.4 The looming threat of such systems was dramatically brought to the world’s
1 ∗ LLM Student, University of Melbourne. 2 United Nations, ‘Amid Widening Fault Lines, Broken Relations among Great Powers, World “in Turmoil”, Secretary-General Tells Paris Peace Forum, Calling for New Social Contract’ (Press Release, SG/SM/19852, 11 November 2019)
(2019) 4 Perth International Law Journal 31 Marcus Hickleton attention in 2012 with the publication of Losing Humanity: The Case against Killer Robots.5 Drafted by Human Rights Watch (HRW) and the International Human Rights Clinic (IHRC) at Harvard Law School, the report draws on the terrifying notion — one long pervading science fiction — of malevolent robots perpetrating reckless slaughter.6 A furious debate has ensued in the intervening years, centred on whether such systems (which, by most definitions, do not yet exist)7 could be legally and ethically permissible. The latest shot in this debate was fired in August 2018 with HRW/IHRC’s publication of Heed the Call: A Moral and Legal Imperative to Ban Killer Robots.8 This report argues that the Martens Clause — a ‘unique provision of international humanitarian law that establishes a baseline of protection for civilians and combatants when no specific treaty law on a topic exists’ — justifies a preemptive ban on the development, production and use of LAWS.9 This is because LAWS ‘contravene [the two] prongs of the Martens Clause’ — the principles of humanity and the dictates of public conscience.10 This article will analyse Heed the Call in assessing whether the Martens Clause does indeed justify such a ban. The Martens Clause is subject to an array of interpretations. Whilst the precise parameters differ, three perspectives can be broadly identified.11 The first holds that the Clause is an interpretative aid, ensuring that humanity and the public conscience are considered in the interpretation of principles of international humanitarian law (IHL).12 On the second view, the Clause elevates the principles of humanity and the dictates of public conscience to independent sources of international law.13 The third view sees the Clause ‘merely as a reminder … that states should refer to customary international law when treaty law is silent on a specific issue’.14 Significantly, only the second view of the Martens Clause, promulgated by HRW/IHRC, could justify a preemptive ban on LAWS. As this article demonstrates, the HRW/IHRC view is largely unsupported by the jurisprudence and is rejected by a majority of commentators. The interpretative aid approach, by contrast, receives widespread judicial and academic support. Under the latter approach, conflicting interpretations of legal provisions concerning LAWS may be resolved in favour of the conclusion that best comports with humanity and the public conscience. Relatedly, the principles of humanity and the dictates of public conscience may bolster conclusions reached on other grounds that LAWS should be subjected to
5 Human Rights Watch and International Human Rights Clinic, Losing Humanity: The Case against Killer Robots (Report, 19 November 2012) (‘Losing Humanity’). 6 Ibid. This notion is encompassed in the very title, which describes ‘Killer Robots’. 7 See, eg, Michael N Schmitt and Jeffrey S Thurnher, ‘Out of the Loop: Autonomous Weapon Systems and the Law of Armed Conflict’ (2013) 4 Harvard National Security Journal 231, 234 (‘[A]n outright ban is premature since no such weapons have even left the drawing board’). 8 Human Rights Watch and International Human Rights Clinic, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots (Report, 21 August 2018) (‘Heed the Call’). 9 Ibid 1 (‘To comply with the Martens Clause, states should adopt a preemptive ban on the weapons’ development, production, and use’). 10 Ibid. 11 See, eg, ibid 14–15. 12 Antonio Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ (2000) 11(1) European Journal of International Law 187, 187, 189–190. 13 Ibid 190–192. 14 Heed the Call (n 8) 14.
32 (2019) 4 Perth International Law Journal Shaky Foundations: ‘Killer Robots’ and the Martens Clause legal regulation. However, as will be demonstrated, these dual prongs of the Martens Clause are decidedly not enough, in and of themselves, to delegitimise LAWS as a class of weaponry. As such, the Martens Clause cannot be held to justify a preemptive ban on LAWS. Part I outlines the characteristics of the relevant technology and contextualises the debate for and against LAWS. Part II analyses Heed the Call’s arguments about the Martens Clause and concludes that this provision does not justify a preemptive ban on LAWS. Part III dismisses the cases for a ban and for applying existing law to LAWS, proposing instead that this emerging technology be regulated. It is concluded that a moratorium on anti-personnel LAWS — and not a ban on LAWS more broadly — best addresses the legitimate concerns raised by this new technology.
II PART ONE A What Are Fully Autonomous Weapons? Before a ban on LAWS can be discussed, the nature (and even the existence) of the relevant technology must be canvassed. A major complication in the debate on LAWS is that they lack a generally accepted definition. Even the terminology used to describe LAWS varies widely. In accordance with the Convention on Certain Conventional Weapons (CCW) process,15 this article will employ the term ‘lethal autonomous weapon systems’ (LAWS) as being analogous to ‘(fully) autonomous weapon systems’.16 However, the terms ‘autonomous’, ‘lethal’, ‘robots’ and ‘weapon systems’ are regularly used interchangeably, leading only to confusion between existing weapon systems and those future systems subject to prospective bans.17 The result is a profound lack of clarity in international discussions on the future of LAWS.18 A full analysis of the merits and shortcomings of the proposed definitions is beyond the scope of this article.19 The definition given by the International Committee of the Red Cross (ICRC) will be highlighted as an example. The ICRC defines an ‘autonomous weapon system’ as: Any weapon system with autonomy in its critical functions. That is, a weapon system that can select (i.e. search for or detect, identify, track, select) and attack (i.e. use force against, neutralize, damage or destroy) targets without
15 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 10 April 1981, 1342 UNTS 137 (entered into force 2 December 1983). This process will be discussed further in Part I (C). 16 The distinction must nonetheless be drawn that the term ‘lethal’ connotes the taking of human life, which more broadly implicates anti-personnel than anti-material systems. 17 Rebecca Crootof, ‘The Killer Robots Are Here: Legal and Policy Implications’ (2015) 36 Cardozo Law Review 1837, 1843 (‘The Killer Robots Are Here’). 18 Chris Jenks, ‘False Rubicons, Moral Panic, & Conceptual Cul-De-Sacs: Critiquing & Reframing the Call to Ban Lethal Autonomous Weapons’ (2016) 44(1) Pepperdine Law Review 1, 13. 19 For a detailed analysis of the most prominent definitions, see generally Crootof, ‘The Killer Robots Are Here’ (n 17).
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further human intervention.20 Evidently, key to the definition of an ‘autonomous weapon system’ is the meaning of autonomy. This meaning, however, is particularly perplexing.21 Even basic reference to an ‘“autonomous robot” conjures up wildly different images, ranging from a household Roomba to a sci-fi Terminator’.22 A core part of the complexity is the fact that autonomy is used to refer to three separate concepts: ‘the human-machine command-and-control relationship; the complexity of the system; and the type of task being automated’.23
1 Technical Distinctions (a) Human-Machine Command-and-Control Relationship The human-machine command-and-control relationship is the most commonly discussed aspect of autonomy. An example is the classification of autonomy advocated by HRW, which distinguishes weapon systems based on their level of human interaction. HRW classes weapon systems as (1) Human-in-the-Loop; (2) Human-on-the-Loop; or (3) Human-out-of-the-Loop.24 Adopting a parallel system, the US Department of Defense classifies weapon systems as (1) Semi-Autonomous; (2) Human-Supervised Autonomous; or (3) (Fully) Autonomous.25 These three categories broadly correlate.26 In the first category, human controllers must approve the use of force.27 In the second, the weapon system can independently use force under the oversight of the human controller, who can override the system.28 In the third category, the weapon system can independently use force without any human oversight or intervention.29 Despite utilising the sensationalist term ‘killer robots’ in its title, Heed the Call generally employs the term ‘fully autonomous weapons’.30 Such weapons are defined in Losing Humanity as ‘both out-of-the-loop weapons and those that allow a human on the loop, but that are effectively out-of-the-loop weapons because the supervision is so limited’.31 HRW/IHRC contend that these weapons should be banned.32
20 International Committee of the Red Cross, Autonomous Weapon Systems: Implications of Increasing Autonomy in the Critical Functions of Weapons (Report, March 2016) 8 (‘Autonomous Weapon Systems: Implications’). 21 Jenks (n 18) 13. 22 Paul Scharre, ‘Autonomy, “Killer Robots”, and Human Control in the Use of Force – Part I’, Just Security (Web Page, 9 July 2014)
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(b) Complexity of the System Under this second meaning, autonomy is plotted on a spectrum of complexity ranging from ‘automatic’ to ‘automated’ to ‘autonomous’.33 At the simplest end of the spectrum are automatic machines, such as toasters or mines, which respond mechanically to environmental stimuli.34 Automated machines are those employing ‘rule-based systems’, such as self-driving cars.35 Autonomous machines, at the most complex end of the spectrum, ‘execute some kind of self-direction, self-learning … behavior that was not directly predictable from an inspection of its code’.36
(c) Type of Task Being Automated Finally, under the third meaning, autonomy could refer to functions as diverse as navigating or firing a projectile.37 However, as per the ICRC definition cited above, the functions of selecting and attacking targets are considered the most relevant to the discussion on the permissibility of LAWS.38
(d) Critique of Such Distinctions These three aspects of autonomy are often problematically conflated. Noting this point, Chris Jenks argues that the ‘in-’, ‘on-’ and ‘out-of-the-loop’ distinction ‘oversimplifies and misrepresents’, whilst the automatic-automated-autonomous spectrum ‘lacks practical utility’.39 Indeed, Lt. Col. Alan Schuller describes making distinctions on this latter spectrum as ‘a futile effort that attempts to paint over infinite shades of grey with a façade of order’.40 It is evident that, despite apparently clear categorisations, autonomy is a very complex notion. This complexity explains, at least in part, the lack of an internationally accepted definition of LAWS. It also explains recent efforts, discussed below in Part I (C)(2), to define LAWS based on the level of human control rather than on their technical characteristics.
2 Do Lethal Autonomous Weapon Systems Presently Exist? Most commentators contend that LAWS do not presently exist.41 Indeed, in 2012, Losing Humanity described LAWS as being 20 to 30 years away from development.42
33 Scharre, ‘Autonomy – Part I’ (n 22). 34 Ibid. 35 Ibid. 36 Ibid. 37 Ibid. 38 Ibid. 39 Jenks (n 18) 16. 40 Autonomous Weapon Systems: Implications (n 20) 27. 41 Ibid 41 (‘According to the definition of autonomous weapon systems used by the ICRC, “fully” autonomous weapon systems are still at the research stage’); Schmitt and Thurnher (n 7) 234; Tyler D Evans, ‘At War with the Robots: Autonomous Weapon Systems and the Martens Clause’ (2013) 41 Hofstra Law Review 697, 699 (‘truly autonomous weapons do not yet exist’); Jenks (n 18) 39 (‘fully autonomous weapons do not exist’). 42 Losing Humanity (n 5) 1.
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However, the question of whether LAWS exist or not naturally hinges on the definition employed. For example, Rebecca Crootof, in advocating a new definition of LAWS, argues that, ‘contrary to the nearly universal consensus, … autonomous weapon systems are not weapons of the future: they exist and have already been integrated into states’ armed forces’.43 Despite this definitional disagreement, what is clear is that more than 30 countries have deployed weapon systems with the capability to independently select and attack targets since 1980.44 Such systems include: missile- and rocket-defence weapons, such as Israel’s Iron Dome; anti-personnel ‘sentry’ weapons, such as South Korea’s Super aEgis; loitering munitions, such as Israel’s Harpy; and encapsulated torpedo mines.45 A key question, which Losing Humanity arguably fails to answer,46 is how to separate these current systems from the future systems that are so widely regarded as problematic.47 Some distinctions can be drawn between the LAWS of today and the hypothesised LAWS of tomorrow. Significantly, presently deployed LAWS ‘are designed to target material, aircraft, vessels at sea, and inbound missiles’.48 As such, despite their incidental targeting of the human crews, they are predominantly anti-material, and not anti-personnel weapons.49 Furthermore, a significant number of present systems are defensive, used only in simple environments, and operate autonomously for only limited periods.50 Future LAWS, by contrast, might be given increased scope to ‘operate outside tightly constrained spatial and temporal limits, and increased capacity to determine their own functions and targets’.51 Such systems do not yet exist. The crux of the debate on banning LAWS rests upon the projected capabilities of such future systems.
B Contextualising the Debate Arguments for and against LAWS pervade the academic literature. Given the fact that LAWS do not yet exist, advocates and critics of LAWS must build their cases on projections about the future state of the technology. These projections wildly oscillate from imaginings of ‘more-humane wars with fewer civilian casualties’ to visions of ‘calamity, with rogue robot death machines killing multitudes’.52 While a full analysis of these arguments is beyond the scope of this article, this section will provide context to the debate by highlighting the key claims advanced by authors on each side.
43 Crootof, The Killer Robots Are Here (n 17) 1837. 44 Jenks (n 18) 2. 45 Autonomous Weapon Systems: Implications (n 18) 72–76. 46 See, eg, Jenks (n 18) 23, 39. 47 See, eg, ibid 43. 48 Ibid 7. 49 Ibid 42. 50 Autonomous Weapon Systems: Implications (n 20) 72. 51 Ibid 77. 52 Paul Scharre, Army of None: Autonomous Weapons and the Future of War (W W Norton & Company, 1st ed, 2018) 347 (‘Army of None’).
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1 Arguments Against LAWS A number of legal, moral and practical criticisms have been levelled against LAWS, primarily by HRW/IHRC.53 The most common legal argument is that LAWS would be incapable of complying with fundamental principles of IHL; specifically, the principles of distinction and proportionality.54 Firstly, it is asserted that LAWS ‘would face great, if not insurmountable, difficulties’ in applying the principle of distinction.55 This is because distinguishing legitimate from illegitimate targets requires ‘the qualitative ability to gauge human intention’, a capability that LAWS are apparently unlikely to attain.56 Secondly, it is argued that a proportionality assessment, which involves the balancing of projected civilian harm with anticipated military advantage, is unlikely to be possible for LAWS.57 This is because this balancing of factors requires ‘distinctively human judgement’, which critics argue LAWS are unlikely ever to replicate.58 Three other legal arguments have been advanced. Firstly, LAWS’ critics declare that, despite recognised operational environments in which these IHL determinations would be less problematic — such as the desert, or on the high seas — the potential to use LAWS solely in these environments does not ‘legitimize’ them.59 This is due to the probability that LAWS would be deployed in other, less contained environments.60 Secondly, it is argued that a deployment of LAWS would result in an ‘accountability gap’, whereby neither the robot itself, nor the commander, programmer or manufacturer could be held civilly or criminally liable for violations of IHL. 61 Thirdly, and most relevantly to this article, some critics assert that LAWS contravene the principles of humanity and the dictates of public conscience, as upheld by the Martens Clause.62 This criticism will be dealt with in depth in Part II below. A number of moral and practical arguments can additionally be observed. Firstly, the Campaign to Stop Killer Robots claims that allowing the development of LAWS would be ‘abhorrent, immoral, [and] an affront to the concept of human dignity and principles of humanity’.63 On this view, granting machines decision-making power over human life and death is fundamentally unethical.64 Secondly, it is argued that LAWS’ lack of
53 See generally Losing Humanity (n 5); Human Rights Watch and International Human Rights Clinic, Making the Case: The Dangers of Killer Robots and the Need for a Preemptive Ban (Report, 9 December 2016) (‘Making the Case’); Human Rights Watch and International Human Rights Clinic, Mind the Gap: The Lack of Accountability for Killer Robots (Report, 9 April 2015) (‘Mind the Gap’). 54 Losing Humanity (n 5) 3. 55 Making the Case (n 53) 5. 56 Ibid 5. 57 Ibid. 58 Ibid 8, quoting United Nations Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc A/HRC/23/47 (9 April 2013) [72]. 59 Ibid 9–10. 60 Ibid 9. 61 Ibid 10–13; see generally Mind the Gap (n 53). 62 Making the Case (n 53) 14–17. 63 Campaign to Stop Killer Robots, ‘Majority Call For a New Ban Treaty to Retain Human Control over Force’ (Press Release, 3 September 2018)
(2019) 4 Perth International Law Journal 37 Marcus Hickleton human emotions, such as compassion, removes a significant barrier to killing.65 Thirdly, it is claimed that reviews of new weaponry conducted under Article 36 of Additional Protocol I to the Geneva Conventions are insufficient to counter the risks posed by LAWS, as ‘weapons reviews are not universal, consistent, or rigorously conducted’.66 In the international security sphere, critics also claim that LAWS will: (1) trigger an arms race;67 (2) lower the threshold for the use of force by reducing combatant casualties;68 (3) be vulnerable to hacking by irresponsible actors;69 (4) proliferate to terrorists and violent regimes;70 and (5) destroy confidence in the use of associated civilian technologies.71 In Making the Case, HRW/IHRC declare that advocates of LAWS who reject the above criticisms ‘depend on speculative arguments about the future of technology and the false presumption that technological developments can address all of the dangers posed by the weapons’.72 While technological advancement clearly cannot resolve all of the aforementioned issues, such advancement certainly can address some core concerns surrounding potential violations of IHL. Further, this argument by HRW/IHRC can be applied in reverse, as LAWS’ critics largely base their arguments on a pessimistic view of the future technology. A survey of the opposing views is necessary to bring balance to the debate.
2 Arguments For LAWS Addressing the fundamental legal question of LAWS’ compliance with IHL, Michael N. Schmitt and Jeffrey S. Thurnher distinguish the per se lawfulness of a weapon from its lawful use.73 They assert that LAWS ‘are not unlawful per se’,74 because their autonomy: has no direct bearing on the probability they would cause unnecessary
65 Ibid 25–27; Losing Humanity (n 5) 4. 66 Making the Case (n 53) 33; see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) art 36. 67 Group of Governmental Experts of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects,Report of the 2017 Group of Governmental Experts on Lethal Autonomous Weapons Systems (LAWS), held in Geneva from 13 to 17 November 2017, UN Doc CCW/GGE.1/2017/3 (22 December 2017) 8 (‘Report of 2017’); Group of Governmental Experts of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Report of the 2018 Session of the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, held in Geneva from 9 to 13 April 2018 and 27 to 31 August 2018, UN Doc CCW/GGE.1/2018/3 (23 October 2018) 6 (‘Report of 2018’). 68 Ibid; Mull (n 26) 471; Losing Humanity (n 5) 4. 69 Report of 2017 (n 67) 8; Report of 2018 (n 67) 6; Schmitt and Thurnher (n 7) 242. 70 Report of 2017 (n 67) 8; Report of 2018 (n 67) 6. 71 Report of 2018 (n 67) 7. 72 Making the Case (n 53) 4. 73 Schmitt and Thurnher (n 7) 243–244, 279. 74 Ibid 279.
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suffering or superfluous injury, does not preclude them from being directed at combatants and military objectives, and need not result in their having effects that an attacker cannot control.75 Regarding use in compliance with distinction and proportionality, Schmitt and Thurnher firstly highlight ‘likely developments in autonomous weapon systems technology’.76 As an example, they raise the prospect of ‘“military advantage” algorithms’ being paired with presently existing collateral damage algorithms, with the potential for LAWS to conduct lawful proportionality analyses.77 Going a step further, others even suggest that ‘in the future, [LAWS] could be more compliant with the principles of the [law of armed conflict] than human soldiers’.78 LAWS could ‘reduce misidentification of military targets, better detect or calculate possible collateral damage, or allow for using smaller quanta of force compared to human decision-making’.79 Secondly, Schmitt and Thurnher argue that — as with any weapon — LAWS could be permissibly deployed in some circumstances, but not in others.80 Kenneth Anderson and Matthew C. Waxman similarly acknowledge the ‘daunting legal and ethical hurdles’ in developing LAWS with human-level abilities, capable of deployment ‘in all battlefield circumstances and operational environments’.81 However, they argue that ‘the science- fiction problems … do not need to be solved in order to field “autonomous” weapons that are clearly lawful’.82 For instance, in the short-term, LAWS could be permissibly deployed in environments with few civilians or where there is minimal risk of civilian objects being destroyed.83 Such permissible uses counter sweeping claims that LAWS could never comply with IHL. In terms of the supposed accountability gap, some advocates of LAWS contend that there is none, since ‘the responsibility for the appropriate use of the systems will … remain with the human operators and commanders’, and ‘[o]rders to deploy the system and judgments about how to program it will come from a human’.84 Additionally, advocates contend that arguments about LAWS lowering the threshold for the use of force are ‘morally and practically misconceived’, as ‘deliberately foregoing available protections for civilians or soldiers in war, for fear that political leaders would resort to war more than they ought, morally amounts to holding those endangered humans as hostages’.85 It is also argued that an Article 36 review would not present an obstacle to the
75 Ibid. 76 Ibid 234. 77 Ibid 254–256. 78 Evans (n 41) 730. 79 Kenneth Anderson and Matthew C Waxman, ‘Law and Ethics for Autonomous Weapon Systems: Why a Ban Won’t Work and How the Laws of War Can’ (2013) Jean Perkins Task Force on National Security and Law 1, 15. 80 Schmitt and Thurnher (n 7) 279. 81 Anderson and Waxman (n 79) 12. 82 Ibid 14. 83 Ibid 6, 13. 84 Schmitt and Thurnher (n 7) 277–279. 85 Anderson and Waxman (n 79) 18.
(2019) 4 Perth International Law Journal 39 Marcus Hickleton legality of LAWS,86 as ‘the fact of autonomy itself … does not violate the law of armed conflict’.87 Advocates further argue that LAWS: (1) will be able to operate at speeds beyond human capabilities;88 (2) will not be susceptible to communications jamming like other unmanned systems;89 (3) could be programmed to accept greater dangers than humans would tolerate, allowing rules of engagement (ROE) to be crafted to better protect civilians;90 (4) will be better than humans at applying long, complex lists of ROE;91 and (5) may perform better than humans in the ‘fog of war’, owing to more powerful sensors and a lack of negative emotions such as anger or fear.92 Finally, regarding the foundational argument that it is immoral to delegate decisions over human life and death to a machine,93 LAWS’ advocates assert that ‘vague philosophical concerns should not — and will not — prevent [LAWS’] development and fielding’.94 Others argue that the more important moral issue is compliance with IHL, and the ‘“package” it comes in, machine or human, is not the deepest moral principle’.95 This central issue is presently being addressed as part of the CCW Group of Governmental Experts (GGE) process on LAWS.
C The Convention on Certain Conventional Weapons Process The Convention on Certain Conventional Weapons (CCW) aims to ‘ban or restrict the use of specific types of weapons that are considered to cause unnecessary or unjustifiable suffering to combatants or to affect civilians indiscriminately’.96 The CCW is the primary theatre in which the ban on LAWS is being discussed. Thus, the relevant CCW proceedings to date will be briefly outlined.
1 The Meetings Following informal Meetings of Experts in 2014, 2015 and 2016, the Fifth Review Conference of the CCW agreed to ‘establish an open-ended Group of Governmental Experts (GGE) related to emerging technologies in the area of [LAWS]’.97 This elevation of the LAWS issue to the GGE format was significant, as such a move carries expectations of a concrete result ‘such as a new CCW protocol’.98 Three GGE meetings
86 Schmitt and Thurnher (n 7) 276. 87 Anderson and Waxman (n 79) 11. 88 Schmitt and Thurnher (n 7) 238. 89 Ibid. 90 Gary Brown, ‘Out of the Loop’ (2016) 30(1) Temple International and Comparative Law Journal 43, 47–48. 91 Ibid 50. 92 Perspectives (n 4) 39. 93 Mull (n 26) 482. 94 Brown (n 90) 52. 95 Anderson and Waxman (n 79) 16. 96 United Nations Office at Geneva, The Convention on Certain Conventional Weapons
40 (2019) 4 Perth International Law Journal Shaky Foundations: ‘Killer Robots’ and the Martens Clause have been held to date, with the most recent occurring in August 2019, and further meetings scheduled for 2020 and 2021. A key question is what the CCW process on LAWS has achieved thus far. By one measure, progress has been limited. As noted above, after years of discussion, there is still no commonly accepted definition of what LAWS actually are — a major stumbling block to any future regulation of the systems.99 Furthermore, despite vociferous demands for a ban over a number of years,100 the CCW has agreed only to continue discussions in 2020.101 One significant measure of progress, however, is the declaration contained in the 2018 CCW GGE Report, and repeated in substance in the 2019 Report,102 that, ‘[h] uman responsibility for the use of force must be retained’.103
2 Meaningful Human Control Despite the considerable disagreement characterising most aspects of the LAWS debate, there is an ‘emergent consensus’ that some measure of human control must be retained over decisions to select and engage targets.104 This is often referred to as a requirement of ‘meaningful human control’.105 The precise meaning of that control, however, is still disputed.106 For example, LAWS’ critics are likely to consider meaningful human control to require a human in the loop, ensuring ‘informed human approval of each possible action of a given weapon system’.107 Advocates, by contrast, might consider the system’s programming by a human to be adequate, permitting actions where a human is out of the loop.108 Nevertheless, the consensus that some level of human control is required provides a foundation upon which future agreement may be built.109 Additionally, the concept allows states to sidestep definitions based on
99 Cf Making the Case (n 53) 42 (arguing that the lack of a definition is immaterial because a ‘common understanding of fully autonomous weapons … has already largely been reached…’). 100 See, eg, Losing Humanity (n 5). 101 Meeting of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects,Final Report of the Meeting of the High Contracting Parties to the Convention, held in Geneva from 13 to 15 November 2019, UN Doc CCW/MSP/2019/9 (13 December 2019) 5. 102 Group of Governmental Experts of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects,Report of the 2019 Session of the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, held in Geneva from 25 to 29 March 2019 and 20 to 21 August 2019, UN Doc CCW/GGE.1/2019/3 (25 September 2019) 13. 103 Report of 2018 (n 67) 6. 104 Perspectives (n 4) vi; see also United Nations Office for Disarmament Affairs, ‘Securing Our Common Future: An Agenda for Disarmament’ (Agenda, 2018), where the UN SG noted that ‘all sides appear to be in agreement that, at a minimum, human oversight over the use of force is necessary’; Peter Asaro, ‘Jus Nascendi, Robotic Weapons and the Martens Clause’ in Ryan Calo, Michael Froomkin and Ian Kerr (eds), Robot Law (Edward Elgar Publishing, 2016) 367, 382 (‘it seems quite clear that [in meaningful human control] we have something that looks very much like an emergent principle’). 105 See, eg, Heed the Call (n 8) 3. 106 Rebecca Crootof, ‘A Meaningful Floor for “Meaningful Human Control”’ (2016) 30 Temple International and Comparative Law Journal 53, 54 (‘A Meaningful Floor’). 107 Ibid. 108 Ibid. 109 Scharre, Army of None (n 52) 348.
(2019) 4 Perth International Law Journal 41 Marcus Hickleton the complex technological characteristics of autonomy and focus on the ‘unchanging element in war: the human’.110 In its quest for a ban on LAWS, HRW/IHRC’s Heed the Call describes this ‘emerging consensus for preserving meaningful human control’ as ‘effectively equivalent to a ban on weapons that lack such control’.111 A number of counter-arguments may be made. It should firstly be noted that this is only an ‘emerging’ consensus, and is not enshrined in any legally binding instrument on LAWS. Further, despite some claims to the contrary,112 an absence of the requisite levels of opinio juris and state practice means that the concept of meaningful human control does not constitute customary international law (CIL).113 At least at present, ‘[t]he laws of war do not specify what role(s) humans should play in lethal force decisions’.114 As such, the principle may provide a platform for a future ban on LAWS acting beyond meaningful human control, but does not justify such a ban at present. More central to Heed the Call’s contention, however, is the role of the Martens Clause in justifying a ban on LAWS.
III PART TWO A Interpretations of the Martens Clause 1 Introduction Whilst originally formulated at the Hague Peace Conference of 1899, the Martens Clause has since ‘found inclusion in most of the landmark treaties of modern [IHL], reaffirming its primacy in the field’.115 The formulation of the Martens Clause contained in Additional Protocol I to the Geneva Conventions states that: In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.116 The Martens Clause is subject to an array of conflicting interpretations.117 The narrow view, on which there is baseline agreement, is that the Clause ‘at the very
110 Ibid 357. 111 Heed the Call (n 8) 3. 112 Crootof, ‘A Meaningful Floor’ (n 105) 53–54 (‘Lack of opposition has led some to conclude that it is either a newly developed customary norm or a pre-existing, recently exposed rule of customary international law, already binding on all States’). 113 Opinio juris is one of the dual elements of CIL and constitutes a belief that particular practices are legally required. 114 Scharre, Army of None (n 52) 357. 115 Emily Crawford, ‘The Modern Relevance of the Martens Clause’ (2006) 6 Indian Society of International Law Yearbook of International Humanitarian and Refugee Law 1, 1–2, 16 (for example, the Clause is found in the 1907 Hague Convention IV, the Geneva Conventions of 1949, Additional Protocols I and II of 1977, and the Convention on Conventional Weapons of 1981). 116 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) art 1(2). 117 Rupert Ticehurst, ‘The Martens Clause and the Laws of Armed Conflict’ (1997) 37(317) International Review of the Red Cross 125, 126.
42 (2019) 4 Perth International Law Journal Shaky Foundations: ‘Killer Robots’ and the Martens Clause least’ ensures the continued applicability of customary law when a treaty leaves certain matters uncodified.118 The HRW/IHRC view, expressed in Heed the Call, resides at the other end of the interpretative spectrum. HRW/IHRC declare that, because LAWS would contravene both the principles of humanity and the dictates of public conscience, states ‘should adopt a preemptive ban on the weapons’ development, production, and use’ in order to secure compliance with the Clause.119 Implicit in such a claim is the notion that the Clause’s dual prongs constitute independent sources of law which are binding on states. This is the broad view of the Martens Clause.120 However, as will be demonstrated, such a proposition is profoundly controversial. Heed the Call is only the latest in a line of HRW/IHRC publications arguing that the Martens Clause justifies a ban on LAWS. In 2012, Losing Humanity asserted, somewhat equivocally, that LAWS ‘might contravene’ and ‘raise serious concerns under’ the Martens Clause’.121 In 2016, Making the Case declared that ‘concerns under [the principles of humanity and dictates of public conscience] weigh in favour of a ban on [LAWS]’.122 Published in August 2018, Heed the Call is the first HRW/IHRC report devoted exclusively to arguments on the Martens Clause. It utilises the strongest language yet in arguing that LAWS ‘would contravene both prongs of the Martens Clause’.123 The argument that the Martens Clause justifies a ban on LAWS is, therefore, relatively enduring. Relevantly, the International Court of Justice (ICJ) has stated that the Martens Clause ‘has proved to be an effective means of addressing the rapid evolution of military technology’.124 This article will address such claims, refuting the broad view by demonstrating that the Martens Clause does not justify a preemptive ban on LAWS.
2 Applicability As a preliminary matter, the question of the Martens Clause’s applicability to LAWS must be addressed. The formulation of the Clause adopted in Additional Protocol I expressly states that it applies ‘in cases not covered by this Protocol or by other international agreements’. As such, in order for the Clause to apply, HRW/IHRC must demonstrate that LAWS are not covered by existing international law. On this point, Heed the Call states that ‘[e]xisting [IHL] applies to fully autonomous weapons only in general terms’,125 and ‘does not contain specific rules for dealing with fully autonomous weapons’.126 This notion that LAWS are insufficiently governed by existing law is disputed. Crootof highlights the relevance of IHL and ‘many other treaty and customary
118 Theodor Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’ (2000) 94(1) American Journal of International Law 78, 87; see also ibid. 119 Heed the Call (n 8) 1. 120 Ticehurst (n 117) 126. 121 Losing Humanity (n 5) 30, 35. 122 Making the Case (n 53) 14. 123 Heed the Call (n 8) 1 (emphasis added). 124 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 [78]. 125 Heed the Call (n 8) 14 (citing the ‘core principles of distinction and proportionality’). 126 Ibid.
(2019) 4 Perth International Law Journal 43 Marcus Hickleton international legal regimes’ to LAWS.127 Schmitt and Thurnher similarly note the ‘rich fabric of treaty law [governing] the legality of weapon systems’.128 By way of example, they argue that the prohibition on cluster munitions, incendiary weapons and air-delivered antipersonnel mines ‘limit their employment on [LAWS] by States Party to the respective treaties’.129 However, such arguments are unpersuasive. At best, the highlighted legal regimes are of only marginal relevance to LAWS. As there are ‘indisputably no specific international legal instruments or positive law[s] that prohibit … LAWS explicitly’,130 the Martens Clause is applicable to the case of LAWS.
3 Varying Interpretations The Martens Clause is something of a contradiction. On the one hand, the Clause has been described as ‘particularly ambiguous’,131 ‘somewhat vague’, and of ‘indeterminate legal content’.132 On the other, the ICJ has stated that its ‘continuing existence and applicability is not to be doubted’.133 Thus, while indisputably of enduring legal significance, the Clause’s lack of clarity renders it subject to a variety of competing interpretations. Somewhat confusingly, different authors describe varying numbers of interpretations of the Martens Clause, ranging from Antonio Cassese’s three,134 to Michael Salter’s four,135 to Emily Crawford’s five.136 However, for the sake of clarity, this article will discuss the three most commonly expressed interpretations, described as the narrow, moderate and broad views.137
(a) The Narrow View As stated above, the narrow view is that the Martens Clause ‘serves merely as a reminder … that states should refer to customary international law when treaty law is silent on a specific issue’.138 On this view, the failure of the treaty to ‘expressly prohibit
127 Crootof, ‘The Killer Robots Are Here’ (n 17) 1881 (citing other regimes, including the law of the sea, the law of outer space, international human rights law and the law of state responsibility). 128 Schmitt and Thurnher (n 7) 275. 129 Ibid 276. 130 Mull (n 26) 494. 131 Cassese (n 12) 187. 132 Meron (n 118) 79. 133 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 [87]. 134 Cassese (n 12) 189. 135 Michael Salter, ‘Reinterpreting Competing Interpretations of the Scope and Potential of the Martens Clause’ (2012) 17(3) Journal of Conflict and Security Law 403, 403. 136 Crawford (n 115) 12–16. 137 Evans (n 41) 723–725. 138 Heed the Call (n 8) 14; see also Evans (n 40) 713, 723–724; Ticehurst (n 117) 126. Another even narrower approach was advanced by the Russian Federation in its submission on the Nuclear Weapons Advisory Opinion. On this view, ‘the Martens Clause has become a historical relic, and serves no purpose in modern [IHL]’: Crawford (n 115) 12.
44 (2019) 4 Perth International Law Journal Shaky Foundations: ‘Killer Robots’ and the Martens Clause a specific action’ does not mean that ‘the action is … automatically permitted’.139 It has been noted that treaty law is indeed silent on the question of LAWS. Nevertheless, under the narrow interpretation, LAWS could still be held to be illegitimate if they are precluded by CIL. Unfortunately for critics of LAWS, there is no such customary prohibition. It could be argued that the requirement for meaningful human control is a customary norm, and LAWS that lack such control would therefore be prohibited under CIL.140 However, as discussed above, this argument is unconvincing.141 As such, the narrow view of the Martens Clause cannot justify a preemptive ban on LAWS. The narrow interpretation of the Martens Clause is, in any case, legally unpersuasive. Firstly, this interpretation ‘states the obvious [that a matter not governed by treaty provisions can nonetheless be governed by custom] and is therefore pointless’.142 Secondly, it focuses on custom to the exclusion of the principles of humanity and dictates of public conscience.143 This renders the latter two ‘redundant’ and infringes the rule of legal interpretation by which all elements of a clause must be given meaning.144 Heed the Call reaches a similar conclusion, explicitly rejecting the narrow view as ‘unsatisfactory’.145 As a result, the narrow view is of little relevance to the present discussion.
(b) The Moderate View The moderate view, advocated by Cassese, holds that the Martens Clause provides ‘fundamental guidance’ when interpreting international legal provisions.146 In situations lacking clarity, such as where judges must decide between conflicting legal interpretations,147 international law ‘must be construed so as to be consonant with general standards of humanity and the demands of public conscience’.148 Heed the Call asserts that, under this interpretation, ‘[i]nternational law should … be understood not to condone situations or technologies that raise concerns under these prongs of the Martens Clause’.149 This statement, while partly true in the abstract, is overly broad and constitutes a de-facto argument for the broad approach. Under the moderate view, the Martens Clause is relevant in a judicial setting when dealing with conflicting interpretations of legal provisions. In such cases, conflicts may be resolved in favour of the conclusion that best comports with humanity and the public conscience.150 Or, relatedly, conflicts may be resolved on other legal grounds, with the Clause used
139 Heed the Call (n 8) 14; see also Evans (n 41) 713, 723–724; Ticehurst (n 116) 126. 140 See above Part I (C)(2). 141 Ibid. 142 Cassese (n 12) 192. 143 Heed the Call (n 8) 15. 144 Ibid. 145 Ibid 14. 146 Cassese (n 12) 212. 147 Salter (n 135) 413. 148 Cassese (n 12) 212. 149 Heed the Call (n 8) 15. 150 Salter (n 135) 413.
(2019) 4 Perth International Law Journal 45 Marcus Hickleton merely to ‘confirm or bolster the interpretation’ of these grounds.151 At a minimum, the moderate view of the Martens Clause requires a lack of clarity regarding particular rules of IHL. On this point, Salter notes that, under the moderate view, the Martens Clause is ‘essentially parasitic upon a pre-existing and clearly pertinent rule’.152 Where such rules are ‘either lacking or clearly inapplicable’, the Clause has no role to play.153 In assessing the moderate view’s relevance, one may question whether there are, in fact, any ‘clearly pertinent’ rules pertaining to LAWS. As explicitly stated in Heed the Call, ‘fully autonomous weapons present a case not covered by existing law’.154 Furthermore, the assortment of customary and treaty rules identified above by Crootof, Schmitt and Thurnher are only of marginal relevance to LAWS. However, it could be argued that it is precisely when dealing with rules of limited relevance that the Martens Clause is of greatest applicability. It is arguably in such situations that unclear interpretations or legal conflicts are most likely to occur. Even if it were countered that such rules must be ‘clearly pertinent’, a conflict could conceivably arise in relation to broad principles such as distinction or proportionality. Therefore, situations can be imagined — at least, in the abstract — in which an interpretative conflict could arise from rules pertaining to LAWS. A key question, for the purposes of this article, is whether conflicting legal interpretations could be resolved under the moderate approach in favour of a ban on LAWS. The answer is no, for a number of reasons. Firstly, scholarly opinion is weighted firmly against the ability of the Martens Clause to invalidate methods or means of warfare.155 Secondly, the majority of the relevant jurisprudence has employed the Martens Clause ‘to confirm or bolster the interpretation of other [rules of IHL]’.156 Most conclusions have therefore been reached on alternative legal grounds, with the Martens Clause merely providing additional support.157 As such, presuming this trend is to continue, the moderate interpretation of ‘the Clause could influence or strengthen a determination that a non-existent weapon violates [IHL], but the Clause alone would be insufficient to prohibit it’.158 Therefore, the moderate interpretation of the Martens Clause cannot justify a preemptive ban on LAWS. The Clause’s two prongs are, however, still of relevance. As will be demonstrated, a finding that LAWS offend either prong, while not legally binding, could nevertheless lead states to conclude that some form of regulation is necessary.
(c) The Broad View As stated above, Heed the Call adheres to the broad view of the Martens Clause,
151 Cassese (n 12) 202. 152 Salter (n 135) 419 (emphasis altered). 153 Ibid 419–420. 154 Heed the Call (n 8) 14. 155 See below Part II (A)(4)(b). 156 Cassese (n 12) 202. 157 Evans (n 41) 717. Or, in Cassese’s words, being used ‘primarily to pay lip service to humanitarian demands’: ibid 208. 158 Evans (n 41) 724 (emphasis in original).
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‘whereby the clause upgrades to the rank of sources of international law the “laws of humanity” and the “dictates of public conscience”’.159 However, this adherence is largely implicit. For example, while Heed the Call notes that ‘[e]xperts disagree on the precise legal significance of the Martens Clause’,160 it does not openly endorse one interpretation, and instead discusses the various views in an apparently objective fashion.161 Nonetheless, despite this apparent objectivity, Heed the Call goes on to build its case on the basis of the broad view. The implication underlying Heed the Call’s thesis is that, because LAWS ‘contravene’ the principles of humanity and the dictates of public conscience, they should be banned.162 This is a clear application of the broad view. Heed the Call’s adherence to the broad view is further exhibited when it suggests that a ban on LAWS is necessary to ‘ensure compliance’ with the two prongs of the Martens Clause.163 Other statements assert that the Clause ‘requires states’ to consider the principles of humanity and the dictates of public conscience, and describe the Clause as a ‘legal obligation on states’.164 Only under the broad view could compliance with the Martens Clause’s dual prongs be so required in every case.165 And only under the broad view could a preemptive ban on LAWS be justified. It could be argued that Heed the Call does not, in fact, adopt the broad view. Firstly, under the broad view, LAWS’ failure to comply with the principles of humanity or the dictates of public conscience could render them unlawful per se.166 If LAWS were unlawful per se, there would seemingly be little reason for the preemptive ban treaty sought by HRW/IHRC.167 However, Heed the Call clarifies that a treaty would ‘eliminate any uncertainty’ — seemingly referring to uncertainty about the legal status of LAWS.168 Secondly, Heed the Call, after objectively describing the three interpretations, states that, ‘at a minimum … the Martens Clause provides key factors for states to consider as they evaluate emerging weapons technology’.169 Whilst this statement could be seen as excluding the narrow approach — which focuses entirely on CIL at the expense of humanity and the public conscience — it could encompass both the moderate and broad approaches. Further, the statement (in Heed the Call’s final section) that humanity and the public conscience ‘serve as guides for interpreting international law’ could bolster this view through its seemingly clear reference to the moderate approach.170 However, despite HRW/IHRC’s numerous qualifying statements, Heed the Call’s central thesis, that a ban on LAWS is needed to ensure compliance with the Martens Clause, can only be justified by the broad approach. Thus, any determination that the broad view is not
159 Cassese (n 12) 187. 160 Heed the Call (n 8) 2. 161 Ibid 14–16 (merely stating, in the context of the broad view, that ‘[o]thers argue that the Martens Clause is itself a unique source of law’): at 15 (emphasis added). 162 Ibid 1. 163 Ibid 4. 164 Ibid 6. 165 Salter (n 135) 420 (‘On the [moderate] reading of the Martens Clause, the [Clause] can, at most, operate as a purely optional resource that judges … can simply ignore with impunity’) (emphasis in original). 166 Heed the Call (n 8) 15. 167 Ibid 44–45. 168 Ibid 44. 169 Ibid 2. 170 Ibid 44 (emphasis added).
(2019) 4 Perth International Law Journal 47 Marcus Hickleton supported by the jurisprudence would be fatal to Heed the Call’s argument for a ban.
4 Why the Broad View Is Unpersuasive, and the Moderate View Is the Best Reading of the Martens Clause This section will demonstrate that the broad view is an unstable foundation on which to build a case for a ban on LAWS. In fact, should it be proven that the broad view is incorrect, the central pillar underpinning Heed the Call’s analysis will have been removed. (a) Jurisprudence The relevant jurisprudence confirms the preeminence of the moderate interpretation. Although a full survey of the case law pertaining to the Martens Clause is beyond the scope of this article, five cases – which appear most consistently in the literature and are considered to be of greatest illustrative value – will be analysed. Significantly, both Salter — an advocate of the broad view — and Cassese — an advocate of the moderate view — agree that the moderate view has received considerable judicial support.171 However, the two scholars differ in their conclusions. Cassese declares that the case law has ‘primarily’ employed the Clause ad abundantiam ‘as a sort of general instruction concerning the interpretation of certain international rules’.172 Salter acknowledges that ‘some cases’ can be explained as such.173 Nonetheless, he concludes that, ‘in many others … [the Clause] has been deployed to support the argument that certain inhumane acts post-1899 violated the international law norms already expressed by the Clause’.174 Cassese expressly rejects this view.175 Both sets of arguments will be analysed below.
(i) Klinge (1946) Supreme Court of Norway The Klinge case concerned a former Gestapo member charged with committing acts of torture. On appeal, the defence claimed that the death sentence handed down breached the Norwegian Constitution, which prohibited the retroactive application of laws.176 The Supreme Court of Norway rejected this claim. It held that the acts of torture committed by Klinge were both forbidden under Norwegian law and violated the dual prongs of the Martens Clause.177 Salter describes this decision as upholding the broad view.178 Cassese acknowledges that, ‘[o]n the face of it’, this does appear to be the Supreme Court’s interpretation; however, he counters that such a holding would be ‘manifestly fallacious’ and ‘based
171 Salter (n 135) 416, 419; Cassese (n 12) 202. 172 Cassese (n 12) 208 (emphasis in original). 173 Salter (n 135) 430. 174 Ibid. 175 Cassese (n 12) 208. 176 Ibid 202. 177 Ibid. 178 Salter (n 135) 426.
48 (2019) 4 Perth International Law Journal Shaky Foundations: ‘Killer Robots’ and the Martens Clause on a … misconstruction of international law’.179 This is because torture of civilians was ‘implicitly prohibited’ by CIL rules arising from the Hague Regulations of 1907, and thus already constituted a war crime.180 The Supreme Court partly acknowledged this through its additional reference to Article 46 of the Hague Regulations, which contains the duty to respect the lives and rights of the inhabitants of occupied territories.181 As such, beyond bolstering the interpretation of Article 46 that rendered acts of torture a war crime, reference to the Martens Clause was unnecessary.182 On this ‘better interpretation’ of the case, Klinge supports the moderate view of the Martens Clause.183
(ii) Krupp (1948) United States Military Tribunal, Nuremberg In Krupp, the defendants were charged under Articles 46-56 of the Hague Regulations with exploiting German-occupied territories during the Second World War. 184 The United States Military Tribunal held that Articles 46-56 were binding upon Germany, ‘not only as treaty but also as customary law’.185 It then declared that: The preamble [to the 1899 and 1907 Hague Convention] is much more than a pious declaration. It is a general clause, making the usages established among civilized nations, the laws of humanity, and the dictates of public conscience into the legal yardstick to be applied if and when the specific provisions of the Convention and the Regulations annexed to it do not cover specific cases occurring in warfare, or concomitant to warfare.186 The Tribunal then added: ‘However, it will hardly be necessary to refer to these more general rules. The Articles of the Hague Regulations … are clear and unequivocal’.187 Both Salter and Cassese agree that the Tribunal convicted the defendants on the basis of Articles 46-56, and not the Martens Clause.188 Thus, the quoted section was clearly obiter.189 However, Salter argues that ‘it cannot … be denied that such judicial citations … clearly add weight to the [broad] interpretation’.190 Evidently, any judicial support does add some degree of weight to an interpretation. Nevertheless, it is clear that the Tribunal, in reaching its decision, merely used the Martens Clause as a supplementary source to bolster its finding on other grounds.191 This is an application of the moderate approach.
179 Cassese (n 12) 203. 180 Ibid. 181 Ibid. 182 Ibid. 183 Ibid. 184 Salter (n 135) 423. 185 Cassese (n 12) 203–204, quoting Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law (no. 10, vol. 9, Part II) 1340. 186 Ibid 204, quoting Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law (no. 10, vol. 9, Part II) 1341. 187 Ibid. 188 Ibid 204; Salter (n 135) 424. 189 Cassese (n 11) 204; Salter (n 135) 424. 190 Salter (n 135) 424. 191 Cassese (n 12) 203.
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(iii) Rauter (1949) Dutch Special Court of Cassation In Rauter, the appellant was accused of carrying out collective punishment of Dutch civilians. The Dutch Special Court of Cassation made two references to the Martens Clause.192 In the first, the Court noted that Article 50 of the Hague Regulations prohibits collective punishment, before adding that collective punishment also contravenes the dual prongs of the Martens Clause.193 However, this reference was ‘[p]lainly … made ad abundantiam and without attributing to the clause any particular legal value’.194 The second reference is more relevant for present purposes. In response to defence claims that Rauter’s death sentence contravened the principle of non-retroactivity,195 the Court made a number of arguments, one view of which is that: [B]y virtue of the Martens Clause, any conduct contrary to the ‘principles of humanity’ and the ‘dictates of public conscience’ was to be regarded as amounting to a war crime or to a crime against humanity, even where such conduct was not prohibited by any international rule.196 Salter endorses this view.197 Cassese rather unconvincingly states that, ‘[a]rguably the Court did not intend to go so far’.198 Instead, he asserts that the Court merely ‘relied upon the [Martens Clause] essentially to bolster its third argument [that the principle of non-retroactivity is not absolute], to which it probably attached decisive importance’.199 This argument is speculative and equivocal. Thus, the Rauter case can be seen as providing isolated support for the broad approach.
(iv) Legality of the Threat or Use of Nuclear Weapons (1996) International Court of Justice The ICJ’s 1996 Advisory Opinion made mention of the Martens Clause on three occasions.200 On the first, after referring to the ‘cardinal principles’ of protection of the civilian population and the prohibition of unnecessary suffering, the Court referred to the Martens Clause ‘in relation to these principles’.201 The Court then proceeded to state that the Martens Clause ‘has proved to be an effective means of addressing the rapid evolution of military technology’.202 Salter argues that this reference constituted a proclamation by the Court that the Martens Clause is the third cardinal principle of humanitarian law.203 He avers that, ‘[c]learly, this decision placed each of the three established principles on a par as substantive and directly applicable legal norms of
192 Ibid 204. 193 Ibid. 194 Ibid. 195 Salter (n 135) 424. 196 Cassese (n 12) 205. 197 Salter (n 135) 425. 198 Cassese (n 12) 205. 199 Ibid. 200 Ibid 206. 201 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 [78]. 202 Ibid. 203 Salter (n 135) 426–427.
50 (2019) 4 Perth International Law Journal Shaky Foundations: ‘Killer Robots’ and the Martens Clause international law’.204 However, this interpretation goes too far. A linguistic analysis of the relevant paragraph supports a narrower view. The Court stated that ‘the cardinal principles … are the following’.205 It then described ‘[t]he first’ and ‘the second principle’.206 By referring to the Martens Clause ‘in relation to these principles’, the relevant passage clearly distinguished the two principles from the Clause.207 As such, the Martens Clause is accorded a lesser significance. A far more likely meaning is the Cassese view, that ‘the clause has served as the inspirational force prompting states to humanize war and ban weapons that cause excessive suffering’.208 The second reference was a statement that the Martens Clause, ‘when adopted [in Additional Protocol I]’, was ‘merely the expression of the pre-existing customary law’.209 As such, it is binding on all states.210 Notably in this statement, the Court failed to ‘tackle the crucial issue: if the clause is binding upon all states, what are its legal effects?’211 As such, it provides no guidance on how the Clause should be interpreted. The ICJ’s final mention of the Martens Clause is similarly unenlightening. The Court pointed to ‘the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons’.212 Significantly, the reference was to ‘the principles and rules of humanitarian law’, and not the ‘principles of humanity and dictates of public conscience’.213 The Court thus avoided any endorsement of the broad view.214 It must be noted that, in his dissent, Judge Shahabuddeen did support the broad view.215 He stated that ‘the Martens Clause provide[s] authority for treating the principles of humanity and the dictates of public conscience as principles of international law’.216 However, as a dissenting opinion, Shahabuddeen’s statement is clearly not of binding authority. On balance, the ICJ’s three references to the Martens Clause add little to the interpretative debate. Despite clearly acknowledging the Clause’s significance for humanitarian law, the Court ‘did not resolve the principal controversies concerning its interpretation’.217
204 Ibid 427. 205 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 [78]. 206 Ibid. 207 Ibid. 208 Cassese (n 12) 206. 209 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 [84]. 210 Ibid. 211 Cassese (n 12) 206. 212 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 [87]. 213 Cassese (n 12) 206–207. 214 Ibid 206. 215 Salter (n 135) 427; Ticehurst (n 117) 128. 216 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 406 (Judge Shahabuddeen). 217 Meron (n 118) 87; see also Crawford (n 115) 10.
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(v) K.W. (1950) Conseil de Guerre de Bruxelles In the K.W. case, the defendant was accused of severely injuring a number of Belgian civilians who had resisted the German occupation. The Military Court noted that the Hague Regulations did not expressly forbid the perpetration of acts of violence or ill- treatment against the inhabitants of occupied territory.218 It therefore held that, under the Martens Clause, the Court could apply broad principles of international law based on humanity and the dictates of public conscience.219 In particular, these principles could be derived from the Universal Declaration of Human Rights.220 The Court held that the defendant’s conduct was contrary to Article 5 of the Universal Declaration — which prohibited torture and inhuman treatment — and thus violated the customs of war.221 Salter declares that this judgment is ‘perhaps the clearest example of a judicial decision that advances [the broad view]’.222 However, it seems evident that the Martens Clause was employed here as an interpretative aid.223 The human rights standards of the Universal Declaration, imported via the Martens Clause, were ‘used as guidelines for determining the proper interpretation to be placed upon vague or insufficiently comprehensive principles’ of the Hague Regulations.224 As such, this case supports the moderate view of the Martens Clause.
(vi) Conclusion on Case Law This survey of the jurisprudence reveals broad (but not universal) support for the moderate view of the Martens Clause. In a clear majority of cases, the Clause has been employed ‘implicitly or explicitly … as a sort of general instruction concerning the interpretation of certain international rules or as a means of better understanding the thrust of modern humanitarian law’.225 Applied to the specific context of LAWS, a variety of scholarly statements provide further support for the moderate approach.
(b) Scholarly Opinion While not all scholars expressly align themselves with an interpretation, a majority nevertheless reject, directly or indirectly, the broad view that the Martens Clause could be employed to delegitimise LAWS. For example, Schmitt and Thurnher question the very applicability of the Martens Clause to LAWS, asserting that the Clause ‘does not act as an overarching principle that must be considered in every case’.226 Michael A. Newton refers more explicitly to the possibility of the Martens Clause supporting a ban on LAWS. He states that
218 Cassese (n 12) 207. 219 Salter (n 135) 425. 220 Cassese (n 12) 207. 221 Ibid. 222 Salter (n 135) 425. 223 Cassese (n 12) 207. 224 Ibid. 225 Ibid 208 (emphasis in original). 226 Schmitt and Thurnher (n 7) 275.
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‘the Martens concept would be forced to bear a wholly unprecedented and unforeseen burden if it becomes the fulcrum for forcing a preemptive ban on a developing class of technology’.227 Still others focus on the Martens Clause’s general potential as a prohibitory tool. Crawford states that the Clause ‘cannot be used alone to outlaw certain methods or means of warfare, especially in contested or problematic cases’.228 Theodor Meron similarly asserts that, ‘[e]xcept in extreme cases, [the Clause] cannot, alone, delegitimize weapons and methods of war, especially in contested cases’.229 As the foregoing analysis has demonstrated, LAWS certainly qualify as such a contested case. Significantly, in employing the word ‘alone’, both authors imply that the Clause may be used to bolster conclusions reached on other grounds. Such an implication, combined with other revealing statements, 230 provides a strong ground for the argument that Crawford and Meron adhere to the moderate approach. Salter presents an exception to this position. While he does not specifically pronounce on the view that the Martens Clause could be used to delegitimise a class of weaponry, his assertion that the Clause’s dual ‘elements are best considered as substantive and free-standing legal norms’ could clearly be employed to underpin such a stance.231 Nevertheless, a clear trend in the relevant scholarship is to reject the aforementioned implications of the broad view.
(c) Conclusion A combination of the relevant jurisprudence and considered scholarly opinion weighs heavily against the broad interpretation of the Martens Clause. As such, Heed the Call’s argument that the Martens Clause constitutes a solid legal and ethical base on which to construct a ban on LAWS is demonstrably incorrect. Nevertheless, as stated above, a finding that LAWS offend the principles of humanity or the dictates of public conscience could still be practically, if not necessarily legally, relevant. Therefore, this article will proceed to analyse Heed the Call’s specific arguments on the Martens Clause’s two prongs.
B The Dual Prongs of the Martens Clause 1 What Is the Relevance of These Two Prongs under the Moderate Interpretation of the Martens Clause?
227 Michael A Newton, ‘Back to the Future: Reflections on the Advent of Autonomous Weapons Systems’ (2015) 47(1) Case Western Reserve Journal of International Law 5, 15–16. 228 Crawford (n 115) 17. 229 Meron (n 118) 88. 230 Ibid 87–88 (the Martens Clause ‘argues for interpreting [IHL], in case of doubt, consistently with the principles of humanity and the dictates of public conscience’); Crawford (n 114) 17 (‘The Martens Clause should be used as an interpretative tool … rather than have such general, albeit persuasive, principles serve as the preponderant source’). 231 Salter (n 135) 437.
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The foregoing analysis has demonstrated that the moderate interpretation of the Martens Clause is decisive. It has been additionally noted that the Martens Clause, although not an independent source of law, is of enduring significance in the field of humanitarian law. The principles of humanity and the dictates of public conscience, as the dual pillars of this important clause, must now be considered. Under the moderate view, the principles of humanity and the dictates of public conscience are aids in legal interpretation. Legal conflicts may be resolved by judges interpreting international law to comport with such principles and dictates. Therefore, for the purposes of the moderate view, the Martens Clause’s dual prongs are factors to be examined in the context of a particular legal conflict. Heed the Call, by contrast, analyses them as abstract and independent legal principles.232 However, Heed the Call’s analysis is still of relevance. As Meron notes, ‘weapons or means of warfare are seldom prohibited on the sole basis of their incompatibility [with the two prongs of the Martens Clause]’.233 Nevertheless, ‘a sense of abhorrence of a particular weapon can be an important factor in the development of treaty prohibitions’.234 Therefore, a finding that LAWS conflict with either of the Clause’s two prongs could still lead states to conclude that some form of regulation of LAWS is necessary.
2 Do LAWS Contravene the Principles of Humanity? The precise scope of the principles of humanity is variously described.235 For the purposes of this article, Heed the Call’s formulation will be employed. Heed the Call explains that the principles of humanity require three elements to be satisfied: (1) the humane treatment of others; (2) respect for human life; and (3) respect for human dignity.236 Heed the Call declares that LAWS, for a number of reasons, contravene all three.237 Firstly, humane treatment, which entails minimising the harm inflicted on others, is largely a by-product of the compassion and empathy that humans feel for one another.238 LAWS evidently lack such compassion.239 Secondly, respect for human life ‘entails minimizing killing’.240 LAWS lack both the legal and ethical judgement to prevent illegal killings and the ‘innate resistance to killing’ possessed by humans.241 Finally, because LAWS are ‘unable to appreciate fully the value of a human life and the significance of its loss’, they are unable to respect human dignity.242 As with many of the arguments levelled against LAWS, Heed the Call’s claims here reflect a pessimistic view of technological progress. The equally valid, yet more optimistic, position is that LAWS could eventually supersede human capabilities.243
232 Heed the Call (n 8) 19–27. 233 Meron (n 118) 83–84. 234 Ibid 84 (emphasis added). 235 See, eg, Crawford (n 115) 9–10; Ticehurst (n 117) 129. 236 Heed the Call (n 8) 2, 19. 237 Ibid 3 (“‘Fully” autonomous weapons would … violate the principles of humanity on all fronts’). 238 Ibid 2, 19–22. 239 Ibid 2, 21–22. 240 Ibid 2, 24. 241 Ibid 2, 25–26. 242 Ibid 2–3, 26. 243 Evans (n 41) 730; Anderson and Waxman (n 79) 15.
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Analysed through this more optimistic lens, the majority of Heed the Call’s relevant arguments are revealed to be baseless. Firstly, in regard to humane treatment, the requirement for harm minimisation could conceivably be programmed into LAWS. As noted above, LAWS could ‘reduce misidentification of military targets, better detect or calculate possible collateral damage, or allow for using smaller quanta of force compared to human decision-making’.244 Further, LAWS’ lack of human emotions is arguably negated by the fact that they are programmed by humans who do possess such emotions. Secondly, in regard to respect for human life, LAWS could not be legally deployed unless they were IHL-compliant. And, similar to the first argument, human resistance to killing could be replicated in LAWS that were programmed to act conservatively. Finally, it is near preposterous to argue that, for any killing where the value of the human life is not philosophically contemplated, the principles of humanity are breached. One might consider the case of an artillery strike, where the victims are not even within sight at the time of launch. It is difficult to understand how a victim’s humanity can be appreciated when the perpetrator is not even directly aware of the victim’s existence. In any case, the human commander who deployed the LAWS to a particular operational environment would appreciate the value of the lives against which he or she had directed the system. Overall, Heed the Call’s arguments on the principles of humanity are speculative and pessimistic. More importantly, they do not establish LAWS’ incompatibility with such principles.
3 Do LAWS Contravene the Dictates of Public Conscience? The dictates of public conscience are generally considered to encompass two factors: public opinion, and opinio juris.245 Heed the Call, in declaring that LAWS contravene these dictates of public conscience, describes ‘[i]ncreasing outrage’ and strong public objections to the development of such systems.246 Heed the Call cites public opinion surveys, non-governmental organisation (NGO) activity, statements from peace, faith, science and technology leaders, and declarations from industry as evincing ‘significant and spreading’247 global public opposition to LAWS.248 Heed the Call then focuses on government opinion, which it explains ‘can help illuminate opinio juris’.249 It declares that (as of April 2018) 26 nations from around the world support a preemptive ban on LAWS, while over 100 states are seeking a legally binding instrument.250 The use of public opinion as a measure of the public conscience has been subject to criticism. For example, it has been argued that analysts lack the means to effectively survey a global public and that, in any case, the general public is often insufficiently
244 Anderson and Waxman (n 79) 15. 245 Meron (n 118) 83; Crawford (n 115) 10. 246 Heed the Call (n 8) 1, 3. 247 Ibid 30. 248 Ibid 30–38. 249 Ibid 29. 250 Ibid 38.
(2019) 4 Perth International Law Journal 55 Marcus Hickleton informed.251 Heed the Call, in considering views from such a broad cross-section of global society, effectively responds to a number of these criticisms. However, HRW/ IHRC fail to address other crucial concerns. Firstly, Heed the Call simply ignores the wider criticisms of the public conscience as a factor for consideration in the limitation of means and methods of warfare. Public opinion, as a key pillar of the public conscience, has been described as ‘prone to endless fluctuations’252 as well as ‘malleable and controllable’; thus, it is a dubious ‘moral foundation for new law’.253 Public conscience more broadly has been criticised for its ‘vague’ nature.254 Such factors weigh even further against the broad approach, which advocates reliance on the public conscience as a source of law. Secondly, Heed the Call is correct in acknowledging that ‘polls, by themselves, are not sufficient measures of the public conscience, in part because the responses can be influenced by the nature of the questions asked and do not necessarily reflect moral consideration’.255 Nevertheless, Heed the Call goes on to rely heavily on a number of surveys in which the majority of respondents expressed concern about, or opposition to, LAWS.256 It is submitted that such surveys are completely inappropriate for the determination of the public conscience. One reason is that their results reflect ‘unfair prejudices’ against LAWS, derived from science fiction notions of killer robots.257 Demonstrating this point, in a number of 2016 survey experiments, Michael C. Horowitz determined that ‘public opposition to autonomous weapons is contextual’.258 For example, he found that while only 38% of the US respondents supported developing LAWS when asked in a vacuum, this increased to 61% of respondents when told that LAWS were more effective than alternatives in protecting US forces from 259 attack. This example raises serious questions about the reliability of the surveys used by HRW/ IHRC. It could also have even broader implications — calling into doubt other measures of the public conscience relied upon in Heed the Call. Despite Heed the Call demonstrating a convincing groundswell of support for some form of regulation of LAWS, this article is unable to conclude that LAWS infringe the dictates of public conscience. Heed the Call itself concedes that ‘public opposition to [LAWS] is not universal’.260 And, whilst universal opposition is clearly not required, the bar for establishing the public conscience must necessarily remain high. Any organisation seeking to argue that a technology or practice is contrary to the dictates of
251 Rob Sparrow, ‘Ethics as a Source of Law: The Martens Clause and Autonomous Weapons’, Humanitarian Law & Policy (14 November 2017)
56 (2019) 4 Perth International Law Journal Shaky Foundations: ‘Killer Robots’ and the Martens Clause public conscience bears the burden of affirmatively establishing that fact. With its public opinion surveys discounted, Heed the Call fails to discharge that burden. Nevertheless, the admittedly widespread public opposition to LAWS could serve as one ground justifying their regulation. Regulation will now be considered.
IV PART THREE A Why a Ban on LAWS Is Misconceived As established above, the Martens Clause does not justify a ban on LAWS. However, the dictates of public conscience do demonstrate public concern surrounding LAWS, of sufficient magnitude to suggest that some sort of regulation may be desirable. In addition, the key arguments against LAWS, which critics suggest justify a preemptive ban, have been described above. While a full analysis of these arguments was beyond the scope of this article, their description did reveal a number of broad concerns with LAWS. A combination of these two factors suggests that there is indeed a strong case for some form of regulation. Nevertheless, this section will demonstrate that calls for a ban on LAWS are misconceived. Heed the Call proposes that states should ‘adopt a specific international agreement’ that ‘take[s] the form of a preemptive ban on the development, production, and use of fully autonomous weapons’.261 However, while Heed the Call briefly critiques the more limited calls for regulation of LAWS, it does not justify its calls for a ban beyond highlighting LAWS’ supposed contravention of the Martens Clause.262 Relevantly, in this regard, Making the Case asserts that a ban treaty would ‘clarify states’ obligations’,263 create a stigma around LAWS,264 and ‘be more comprehensive than regulation’.265 Whilst these reasons may be valid, there are a number of strong arguments weighing against a ban. Firstly, and most crucially, calls for a ban are ‘premature since no such weapons have even left the drawing board’.266 As outlined above, LAWS do not yet exist, and opinions as to their future capabilities are sharply divided. Many hypothesise that LAWS may ultimately ‘mitigate suffering’ in war and provide greater protection for civilians,267 possibilities that would be completely undermined by a preemptive ban. Secondly, LAWS still lack a commonly accepted definition. As such, it would be ‘extraordinarily difficult’ for states to establish the required consensus on what to include or exclude from a ban.268 Any efforts to include extant anti-material systems within calls for a ban, which HRW/IHRC appear to have done,269 present a ‘staggering
261 Ibid 44. 262 Ibid 44–45. 263 Making the Case (n 53) 32. 264 Ibid. 265 Ibid 37. 266 Schmitt and Thurnher (n 7) 234. 267 Mull (n 26) 507; ibid. 268 Mull (n 26) 529. 269 Ibid; Jenks (n 18) 60.
(2019) 4 Perth International Law Journal 57 Marcus Hickleton obstacle’ to acceptance by states.270 Thirdly, Crootof’s analysis of the eight factors historically required for an effective ban on a weapon reveals that, in this case, only one factor — public concern and civil society engagement — supports the possibility of a successful ban on LAWS.271 The remaining seven factors ‘are either inconclusive or currently weigh against the likelihood of a successful ban’.272 As such, ‘states are unlikely to conclude – let alone comply with – a treaty banning [LAWS’] use, unless the ban is so narrowly tailored that it effectively defines [LAWS] out of existence’.273 Finally, although 30 states support a ban on LAWS,274 eight remain resolutely opposed to any new treaty.275 Significantly, these eight include militarily advanced states such as France, Israel, the Republic of Korea, Russia, the US and the United Kingdom (UK).276 This reality carries two practical implications. The first is that, in the face of this opposition, no ban could pass at the CCW, which requires decisions to be reached by consensus.277 The second is that any proposed ban would, in any case, be of little practical utility without the support of the states most actively engaged in this area.278 Ban advocates may nonetheless cite the moral value of such a prohibition, leading, as it may, to the stigmatisation and ultimate disappearance of such weapons. However, with LAWS’ future capabilities still so uncertain, and the case against these weapons therefore yet to be decisively made, such a ban cannot, at least at present, be considered warranted. Two key points emerge from this analysis. Firstly, banning LAWS before achieving a full appreciation of their humanitarian potential risks foregoing potentially life-saving technology. And secondly, any present attempt at such a ban carries a low likelihood of success. B Why Existing Law Is Insufficient Schmitt and Thurnher argue that ‘the law of armed conflict’s restrictions on the use of weapons … are sufficiently robust to safeguard humanitarian values’.279 On this view, existing law is sufficient to regulate the use of LAWS,280 as ‘illegal uses would, by definition, already be prohibited under IHL’.281 It is difficult to dispute this assessment. However, such a view presents only part of the picture. While IHL is indeed capable of regulating the use of new weapons, it fails to
270 Jenks (n 188) 60. 271 Crootof, ‘The Killer Robots Are Here’ (n 16) 1843, 1883–1891. 272 Ibid 1843. 273 Ibid 1894. 274 As of 11 March 2020. See Campaign to Stop Killer Robots, Country Views on Killer Robots (11 March 2020)
58 (2019) 4 Perth International Law Journal Shaky Foundations: ‘Killer Robots’ and the Martens Clause account for the less tangible moral concerns with such weapons. For example, while clearly not prohibited by IHL, the notion of machines taking human life is nonetheless deeply problematic to many. This is revealed by the above analysis on the dictates of public conscience. And, whilst the dictates of public conscience are not a legally binding source of law, these dictates are nonetheless a factor that may be considered in the regulation of means and methods of warfare.282 Relatedly, the argument has been made that Article 36 reviews will be sufficient to outlaw any LAWS that are incapable of complying with IHL.283 Indeed, Lt. Col. John Stroud-Turp of the UK Ministry of Defence asserts that ‘Article 36 reviews have been capable of dealing with advances in technology for close to 40 years’.284 Thus, ‘there is no reason to doubt their suitability for dealing with greater advances in autonomy’.285 However, Stroud-Turp himself acknowledges that, despite such reviews constituting a binding obligation on the 170 states party to Additional Protocol I,286 only approximately 25 states conduct them.287 Furthermore, Article 36 reviews focus only on the legality of a weapon as such,288 and thus fail to account for the moral concerns with LAWS. Therefore, when it comes to prohibiting LAWS that may be incompliant with IHL, existing law is largely fit for task. However, the application of this existing law fails to account for the groundswell of moral opposition to these emerging weapon systems.
C Why, and How, LAWS Should Be Regulated The foregoing analysis has conclusively demonstrated that the Martens Clause does not justify a ban on LAWS. Nonetheless, this does not mean that the Clause’s two prongs are irrelevant. Although HRW/IHRC’s arguments about the principles of humanity are unpersuasive, the dictates of public conscience reveal a widespread discomfort with LAWS. Such discomfort, while not legally binding, can still inform the ongoing debate about the best way forward for LAWS. While some suggest that existing law is sufficient to govern LAWS,289 few commentators take this approach. Most agree that states must do something.290 Given the insurmountable challenge of attempting a ban, at least at present, this article contends that regulation is the best means of dealing with the legal and ethical issues presented by LAWS. Various forms of regulation have been proposed, from a legally binding treaty to a non-binding political declaration setting out the need for human control.291 The content
282 Meron (n 118) 84. 283 Autonomous Weapon Systems: Implications (n 20) 59. 284 Ibid. 285 Ibid. 286 Mull (n 26) 492. 287 Autonomous Weapon Systems: Implications (n 20) 59. 288 Michael N Schmitt, ‘Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics’ (2013) Harvard National Security Journal Features 1, 32. 289 Schmitt and Thurnher (n 7) 233–234. 290 See, eg, Anderson and Waxman (n 79) 9 (arguing that ‘the wait-and-see view is shortsighted and faulty’). 291 Report of 2018 (n 67) 7; see also Crootof, ‘The Killer Robots Are Here’ (n 17) 1897 (proposing a regulatory treaty).
(2019) 4 Perth International Law Journal 59 Marcus Hickleton of any such regulation has also been variously described. It has been suggested that a regulatory treaty could: prohibit mobile LAWS, which are more likely to be used offensively; prohibit anti-personnel LAWS; require that LAWS only be used for non- lethal purposes, such as surveillance; or confine the use of LAWS to isolated and unpopulated areas, such as the high seas, outer space or the desert.292 This article adheres to Jenks’ 2016 proposal for a ‘moratorium on LAWS primarily designed to lethally target personnel’.293 Under this proposal, any party seeking to deploy LAWS must ask whether the system in question is: (1) primarily designed to lethally target personnel; and (2) capable of selecting and engaging targets without human intervention.294 If the answer to both questions is yes, then that system is included in the moratorium.295 A moratorium holds a number of advantages over a ban. Unlike a ban, a moratorium would not forever rule out systems that may eventually prove to be more compliant than humans with IHL.296 Further, this lack of finality is likely to significantly reduce the state opposition that could render any proposed ban practically ineffective.297 As it stands, some states (such as the US) have already prohibited their autonomous weapons from using lethal force.298 These factors suggest that support for the moratorium may be forthcoming. There are a number of persuasive reasons for a focus on anti-personnel weapons. Most crucially, the anti-personnel focus of this moratorium ensures that current anti- material systems — which have been widely deployed since 1980 — would not be tied up in the temporary prohibition.299 This proposal clearly distinguishes extant from future systems. The anti-personnel focus also addresses the moral issues arising from machines’ use of lethal force against humans.300 Additionally, anti-material weapons would, in most cases, present a lesser threat of misuse by terrorists or irresponsible state actors than anti-personnel weapons.301 As such, it is concluded that a moratorium on anti-personnel LAWS would best address the concerns posed by this emergent technology.
V CONCLUSION ‘Technology is a useful servant but a dangerous master’ – Christian Lous Lange LAWS are just the latest example of the inexorable advance of modern military
292 Crootof, ‘The Killer Robots Are Here’ (n 17) 1900. 293 Jenks (n 18) 2. 294 Ibid 61. 295 Ibid. 296 Ibid 66. 297 Ibid. 298 See, eg, Directive Number 3000.09 (n 25) 3 (‘Autonomous weapon systems may be used to apply non- lethal, non-kinetic force … against materiel targets’). 299 Jenks (n 18) 61. 300 Ibid 60. 301 Scharre, Army of None (n 52) 355.
60 (2019) 4 Perth International Law Journal Shaky Foundations: ‘Killer Robots’ and the Martens Clause technology. The dizzying pace of technological change in this area raises a number of pressing legal, ethical and practical questions. Perhaps most crucial is the question of the relationship that we, as a global society, wish to have with technology. In LAWS, many see a fundamental threat to the prevailing technological order, in which machines are currently harnessed to humankind’s collective benefit. The sensationalist term ‘killer robots’ both reflects and underpins this anxiety that the current equilibrium might be unbalanced. While such concerns are not unfounded, this is not a time for alarmism, nor for precipitous actions. Time could ultimately prove that a ban on LAWS is required. However, with its legal arguments on the Martens Clause refuted, Heed the Call fails to make that case. Nevertheless, the admittedly widespread public opposition to this emergent technology can still prove practically, if not legally, relevant. Combined with other broad concerns about LAWS, such opposition suggests that regulation is necessary. To this end, this article proposes that a moratorium on anti-personnel LAWS would address these legitimate concerns while overcoming the greatest obstacles posed by a ban.
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62 (2019) 4 Perth International Law Journal The Exercise of Prerogative Powers and their Political Outcome
THE EXERCISE OF PREROGATIVE POWERS AND THEIR POLITICAL OUTCOME
ROBERT E LINDSAY*
I INTRODUCTION The exercise of prerogative powers has influenced political debate and, in many instances, changed the course of political developments. In the last 50 years, the exercise of these prerogative powers on the national stage may be highlighted by what occurred in Australia in 1975; in the Pacific Island of Fiji in 1979; in the United Kingdom in two recent landmark Brexit cases; and in the United States under President Trump. In the instance of Trump, the exercise of prerogative powers under its Constitution was followed by an unsuccessful attempt by Congress to have him impeached. Aside from the United States, each of the countries at the relevant time were Constitutional monarchies exercising prerogative powers. Even those powers recently exercised by President Trump were derived from the powers of George III, the monarch in power in England at the time of the creation of the US Constitution.
II THE CONSTITUTIONAL CRISIS INVOLVING SIR JOHN KERR The best-known exercise of the prerogative in Australia was the dismissal of Prime Minister Gough Whitlam’s government in 1975 by the Governor General, Sir John Kerr, applying the prerogative powers the Governor General had under the Australian Federal Constitution. The Chief Justice, Sir Garfield Barwick, took the unusual step of proffering advice at the Governor General’s request and, subsequently, wrote about it in “Sir John Did His Duty”1 and in his autobiography “A Radical Tory: Garfield Barwick’s Reflections and Recollections”2. Under the Governor’s constitutional prerogative powers, he or she may summon, adjourn and dissolve Parliament. Typically, this is done on the advice of the Prime Minister of the day.
A Approval of Budget Legislation As Sir Garfield explains, Parliament controls the finances of the country and all revenues received are paid into a consolidated fund that cannot be drawn upon without Parliamentary authority. Each year, Parliament approves a budget submitted by the Ministry that specifies what receipts there will be, both by way of taxes and charges and by way of borrowings. If Parliament will not approve the annual budget, the Ministry
1 * Robert E Lindsay is an Australian barrister at the Sir Clifford Grant Chambers in Perth. He has a particular interest in areas of areas of constitutional, criminal, corporate, contractual, administrative, migration and employment law. (1983), Serendip Publications, Sydney, [1] – [129]. 2 (1995), Federation Press, 281-300.
(2019) 4 Perth International Law Journal 63 Robert E Lindsay must either resign or ask for the House of Representatives to be dissolved so that there will be a general election. The resignation of the Ministry occurs once Parliament rejects its budget and this is to avoid embarrassment to the Crown itself in having to dismiss the Ministry.3 The electorate chooses Parliament, although the Ministry to form the Executive government is not elected but appointed by the Governor General. The appointees are to hold office during the Governor General’s pleasure. The Ministry remains in office if it retains the confidence of Parliament. The Governor General’s power to choose and dismiss the Ministry is exercised in accordance with Parliamentary wishes. If Parliament does not support the Ministry, the Ministry must go to the people for their endorsement. In other words, the Governor General’s function is to see that Parliamentary wishes are met. If the Parliament will not support the Ministry, then dissolution by the Governor General is followed by the people electing a new Ministry. If there is a vote of no confidence by Parliament or a failure to pass a legislative proposal vital to the execution of a major policy, which would include a failure to carry the annual budget, then the Ministry is expected to resign and the Governor General is advised to dissolve the House of Representatives and call an election.4
B The Senate Sir Garfield saw the position as one where, in 1975, two States that filled casual vacancies in the Senate did not support the Ministry and, because of this, the control of the Senate passed out of the hands of the Ministry.5 In order for the Appropriation Bills setting out the budget to be passed into law, the concurrence of the Senate as well as the House of Representatives was required. The Senate, now in the control of the Opposition, deferred consideration of the Appropriation Bills and stated that the Prime Minister and his Government no longer had the trust and confidence of the Australian people. This was a resolution passed by the Senate, which Sir Garfield maintained attracted the operation of s57 of the Constitution. That section provides that if the Senate rejects or fails to pass a proposed law that had been passed by the House or, alternatively, it is amended so the House will not agree. Subsequently, after an interval of three months, the House of Representatives, again, passes a proposed law that is then rejected by the Senate. Correspondingly, the Governor General may dissolve the Senate and the House simultaneously.6 The Appropriation Bills were presented to the Senate on three occasions in 1975 and, on each occasion, the Senate did not give its approval. Sir Garfield Barwick took the view whether it was proper for the Senate to have used its legislative power to block supply; this action could not affect the legal validity of the action taken. Its failure to pass the bills was an exercise of the Senate’s legislative power.7 Sir Garfield maintains that some of the misunderstanding in 1975 came froma
3 Ibid [282]-[283]. 4 Ibid [283]. 5 Ibid [286]. 6 Ibid [283]. 7 Ibid [286]-[287].
64 (2019) 4 Perth International Law Journal The Exercise of Prerogative Powers and their Political Outcome failure to appreciate the effect that several elements of our Constitution differ from the Westminster elements. This is because of the dominance of the House of Commons in the Westminster system and its claim to be a popular House. The House of Lords, until recently, was composed of hereditary peers who were not elected or representative. This is a feature has no real counterpart in Australia, where the Senate is also an elected representative body. This failure to appreciate that the Senate is a representative body produced the outcry that the Senate could bring down what was said to be an “elected Government”. He maintains this was a misnomer, for the Ministry is appointed with no fixed term and only during the Governor General’s pleasure. This conveys that it may govern only for so long as it has the approval of both Houses and not merely the House of Representatives alone.8 When the budget was not passed for the third time in 1975, Sir Garfield said the danger loomed that there would be no funds to carry on Government. By 11 November, the private banks had indicated their unwillingness to fund the Government and the political leaders knew that because of logistic constraints – namely, due to the fact that a month must elapse between the calling of an election and the election itself, there was a danger that supply could expire before a new Ministry could be formed.9 Although, as a general rule, the initiative to set in train dissolution is taken by the Ministry, the Whitlam Government did not intend to do this but to “tough it out”. The Government of the day may have intended pressure to be put on Senators to defect from the opposition and vote to grant supply or, alternatively, if that did not work, to obtain private funding. Sir Garfield maintains the urgency of the need to provide funds to carry on government made for a waiting time of more than three months, envisaged by s57 of the Constitution inappropriate.10 Sir Garfield also felt obliged to address other arguments raised at the time: that Sir John Kerr, on November 11, ought not to have dismissed the Ministry and thereby allowed a general election to ensue. For example, Kerr had dismissed the Ministry without giving prior notice to Mr Whitlam of his intention to do so. Sir Garfield says had Kerr done so, it would then have put the Queen in an invidious position: particularly, given the possibility that Mr Whitlam may have then sought to have the Governor General dismissed before he was himself dismissed by the Governor General.11 The debate about the ‘correctness’ of the moral and legal stance taken by Sir John highlights the significance and impact the exercise of prerogative powers under the constitution may have at critical moments in a nation’s history. In this case, it brought about an election which saw the Coalition replace the Labour Party in government.
III CONSTITUTIONAL ISSUES THAT AROSE IN FIJI Just two years after Sir John Kerr acted on the advice received from Sir Garfield, Fiji had a constitutional crisis that also involved its Governor General. Fijian Governor General, Ratu Sir George Cakobau, who received advice from his Chief Justice Sir
8 Ibid [288]-[289]. 9 Ibid [293]. 10 Ibid [293]. 11 Ibid [298].
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Clifford Grant, was later to become Chief Magistrate in Western Australia. The issue on that occasion was to advise the Governor General as to whom the Governor General should ask under the Fiji Constitution to form the Government, since neither of the major parties were able to command an outright majority following a closely fought election. As with the case of Sir John Kerr, it was not open to the Governor General to take advice from the law officers of the Ministry since to take advice from Government law officers would invite accusations of partiality and therefore the Chief Justice was drawn into the political arena.
A The Assignment of Executive Control of Independent Governmental Offices The more usual position, as Sir Garfield points out, is for a Governor General to act on the advice of the Ministry when giving Royal Assent to Parliamentary legislation or issuing executive directives. In such cases, all acts of Government are done by the Governor General in council. The Governor General acts on the advice of a member of Government who, being a Member of Parliament, is responsible for the advice given and the action taken.”12 This occurred in Fiji in 1981 when the Fijian Governor General, acting on the advice of the Prime Minister, issued a directive that assigned responsibility for various independent offices under the Constitution to the administrative control of theFiji Attorney General. The offices were the judiciary, the Director of Public Prosecution’s office, the Auditor General’s office and various other offices. These included the Public Service Commission and the Judicial Legal Services Commission, which had independent status under the Fiji Constitution. The assignment of control to a politically appointed Attorney General followed a prosecution by the Fijian DPP which had uncovered corruption in the Fijian cabinet. The Governor General’s direction was challenged by the Fiji Director of Public Prosecutions and this direction was held unconstitutional by the Fijian Court of Appeal. The Ministry then appealed to the Privy Council who set aside the orders of the lower Courts. The Privy Council, who traditionally deliver an unanimous opinion for Her Majesty’s adoption, considered on a construction of the relevant Constitutional provisions that the directive was lawful. Although, the Court acknowledged such administrative control might give rise to abuse it was not to be presumed that this would occur. The assignment of responsibility did not purport to control the substantive functions of those offices, but only their administrative control. Administrative control was not constitutionally protected and, with loss of administrative control for their independent offices, the door to exert political influence by an unscrupulous government was left ajar. Several successive coups in Fiji, which began seven years later, might well have been attributable in part to the fact that these law enforcement entities had been much weakened by their loss of administrative control now vested in a politically appointed Attorney General.13 The actions of the Australian Governor General in 1975 and the Fijian Governor
12 Ibid [282]. 13 The Attorney General of Fiji v The Director of Public Prosecutions (Privy Council Appeal No. 37 of 1981) reported in [1982] UKPC 34.
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General in 1979 were exercises of the Royal prerogative by the Queen’s representative following advice by their respective Chief Justices in accordance with their interpretation of the provisions of the applicable Constitutions. On the other hand, the Privy Council case in which the Fiji Director of Public Prosecutions unsuccessfully challenged the executive direction assigning responsibility to the Attorney General was an attempt to distinguish the independent offices under the Constitution from the discretionary power exercisable by Ministers under the Royal Prerogative. Professor Dicey defined “Prerogative Powers” as “the remaining portion of the Crown’s original authority, and it is therefore… the name given to the residue of discretionary powers left at any moment in the hands of the Crown, whether such powers be in fact exercised by the King himself or his Ministers.”14
IV THE FIRST BREXIT CASE Neither the removal of Whitlam’s government nor the appointment of a new Fijian Government under the Royal Prerogative gave rise to litigation. Indeed, had it done so, the respective Chief Justices would undoubtedly have had to exclude themselves from sitting. However, the 2016 referendum in the United Kingdom, which voted to leave the European Union, did result in two major cases which define the scope of the Royal Prerogative. In January 1973, the United Kingdom (UK) became a member of European Economic Community (the EEC). In December 2015, the UK Parliament passed the European Union Referendum Act and the ensuing referendum on 23 June 2016 produced a majority in favour of leaving the European Union (the EU). Thereafter, Ministers of the Crown announced that they would bring UK membership of the European Union to an end, which raised the question whether a formal notice of withdrawal could lawfully be done by Ministers. The preceding was pursuant to prerogative powers, without prior legislation being passed in both Houses of Parliament and assented to by the Queen. The Government (the Ministers) argued that withdrawal from the EU could take place in the exercise of prerogative powers and did not require prior legislation to be passed for this to occur. A challenge was raised by two applicants, Gina Miller and Deir Dos Santos against the Secretary of State contending Parliamentary legislative approval was necessary. The proceedings were heard before the Chief Justice, the Master of the Rolls, and Lord Justice of Appeal who ruled against the Secretary of State15. The Ministers took the matter on appeal to the Supreme Court, who sat the full bench of eleven Judges and, who in January 2017, by a majority of eight Judges to three found that the Ministers’ appeal should be dismissed16. The case reviewed existing prerogative powers and the relationship between domestic law and international legislation.
14 House of Commons, Public Administration, 4th Report. 15 (R) (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768. 16 (R) on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5.
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A The EEC Treaties and UK Statute law The Ministers’ case was based on the existence of well-established prerogative powers of the Crown to enter and to withdraw from treaties. It was argued that Ministers are entitled to exercise prerogative powers in relation to withdrawal. In January 1972, Ministers signed a Treaty of Accession that provided that the United Kingdom would become a member of the EEC. Accordingly, it would be bound by the 1957 Treaty of Rome, which was the main treaty in relation to the EEC. A bill was then laid before Parliament, which received the royal assent when it became the European Communities Act 1972 (the 1972 Act) and the following day ratified the Accession Treaty on behalf of the United Kingdom. Section 2(1) of the 1972 Act provided that: “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly….”. Section 2(2) of the 1972 Act authorised and designated Ministers to make regulations for the purpose of implementing EEC (now EU) community obligations. In the past 40 years, over 20 treaties relating to the European Union were signed on behalf of Member States and, in the case of the United Kingdom, by Ministers. One of those treaties being the Treaty of Lisbon inserted Article 50, which provided that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. A Member State that decides to do so, notifies the European Council of its intention which will result in the European Council negotiating and concluding an agreement setting out the arrangements for withdrawal. The European Treaty shall cease to apply to the State from the date of entry into force of the withdrawal agreement, or failing that, two years after notification unless the European Council unanimously agrees in conjunction with the Member State to extend that period.
B International Law and the 1972 Act The general rule is that power to make or unmake treaties is exercisable without legislative authority and that the exercise of that power is not reviewable by the Courts. This principle rests on the so-called dualist theory, which is that international law and domestic law operate in independent spheres. The prerogative power to make treaties depends on two related propositions. The first is that treaties between Sovereign States have effect in international law and are not governed by the domestic law of any State. The second proposition is that although they are binding on the United Kingdom in international law, treaties are not part of the UK law and give rise to no legal rights or obligations in domestic law17. The 1972 Act authorised a dynamic process. Under this authorisation, without further primary legislation or domestic legislation, the EU Law took precedence over all
17 (R) (on the application of Miller & another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 [55].
68 (2019) 4 Perth International Law Journal The Exercise of Prerogative Powers and their Political Outcome domestic sources of UK Law including statutes. However, consistent with the principle of Parliamentary sovereignty, this “unprecedented state of affairs” only lasts so long as Parliament wishes, and the 1972 Act could be repealed like any other statute18. EU Law may take effect as part of the law of the United Kingdom in three ways. Firstly, the EU Treaties themselves are directly applicable by virtue of section 2(1) and some of the provisions of those treaties create rights and duties which are directly applicable in the sense that they are enforceable in UK Courts. Secondly, section 2(1) provides that the EU treaties are to have direct effect in the United Kingdom without need for further domestic legislation. Thirdly, section 2(2) authorises the implementation of EU Law by delegated legislation. This applies mainly to EU directives which are required to be transposed into National Law19. The majority considered that although the 1972 Act gives effect to EU Law, the 1972 Act is not itself the originating source of that law. It is only the “conduit pipe” by which EU law is introduced into UK domestic law. So long as the 1972 Act remains in force, its effect is to constitute EU Law an independent and overriding source of domestic law20. The 1972 Act, therefore, has a constitutional character. Following the 1972 Act coming into force, the normal rule is that any domestic legislation must be consistent with the EU Law; such EU Law has primacy as a matter of domestic law and legislation inconsistent with the EU Law is ineffective. However, legislation that alters the “domestic constitutional status of EU institutions or of EU Law” is not constrained by the need to be consistent with the EU Law. This is because of the principle of Parliamentary Sovereignty that is fundamental to the United Kingdom’s constitutional arrangements and EU Law can only enjoy a status in domestic law which that principle allows. It will, therefore, have that status only for as long as the 1972 Act continues to apply and that is a matter for Parliament21. The Government’s argument was that section 2(1) of the 1972 Act is ambulatory in that the wording that EU Law rights remedies etc. “from time to time provided for by or under the treaties” were “to be given effect or used in the United Kingdom” accommodated the possibility of Ministers withdrawing from the treaties without Parliamentary authority22. However, the majority considered there was a “vital difference” between changes in domestic law resulting from variations in the content of EU Law and changes in domestic law resulting from withdrawal by the United Kingdom from the European Union23. The latter involves unilateral action by the relevant constitutional bodies, which effects a fundamental change in the constitutional arrangements of the United Kingdom24. The majority concluded that they could not accept a major change to UK constitutional arrangements can be achieved by Ministers alone and it must be affected by Parliamentary legislation25.
18 Ibid [60]. 19 Ibid [63]. 20 Ibid [65]. 21 Ibid [67]. 22 Ibid [75]. 23 Ibid [78]. 24 Ibid. 25 Ibid [82].
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C The Dissenting View The leading judgment for the three dissentients was given by Lord Reed. He said that there is no legal requirement for the Crown to seek Parliamentary authorisation because the exercise of the power, except to the extent that Parliament, is provided by statute. Since there is no statute which requires the decision under Article 50(1) enabling withdrawal to be taken by Parliament, it follows that the decision can lawfully be taken by the Crown in the exercise of the prerogative. There is, therefore, no legal requirement for an Act of Parliament to authorise the giving of notification of withdrawal under Article 50(2)26. He accepted the importance in constitutional law of the principle of Parliamentary supremacy over domestic law, but that principle did not require that Parliament must enact an Act of Parliament before the United Kingdom can leave the European Union. That is because the effect which Parliament has given to EU Laws in domestic laws under the 1972 Act is inherently conditional on the application of the EU treaties to the UK and therefore the UK’s membership of the EU. The 1972 Act imposed no requirement and manifested no intention in respect of the UK’s membership of the EU. It did not, affect the Crown’s exercise of prerogative powers in respect of UK membership. The effect of the EU law in the UK is entirely dependent on the 1972Act 27. Referring to the words “from time to time” appearing in section 2(1), Lord Reed said that the rights, powers, liabilities, obligations, and restrictions arising under the EU treaties – as well as the remedies and procedures provided for under those treaties – alter from time to time. This demonstrates that Parliament has recognised that rights given effect under the 1972 Act may be added to, altered, or revoked without the necessity of a further act of Parliament. As to the majority of the Court drawing a distinction described as “a vital difference” between changes in domestic law resulting from variations in the content of EU law and changes resulting from withdrawal by the UK from the European Union, there is no basis in the language of the 1972 Act for drawing any such distinction28. The differences between the majority and minority views turned largely upon differing statutory constructions of the relevant legislation. However, there was general consensus about the nature and history of prerogative powers that the judgment discussed.
D The History of the Royal Prerogative Unlike Australia, the UK Constitution is unwritten and has been described as “the most flexible polity in existence”29. Originally, sovereignty was concentrated in the Crown that largely exercised all the powers of the State. Prerogative powers were progressively reduced as Parliamentary democracy and the rule of law developed. By the end of the 20th Century the great
26 Ibid [161]. 27 Ibid[177]. 28 Ibid[186]-[187]. 29 Albert Dicey, ‘Introduction to the Study of the Law of the Constitution’(8th Edition) (1915), 87.
70 (2019) 4 Perth International Law Journal The Exercise of Prerogative Powers and their Political Outcome majority of what had previously been prerogative powers, at least with respect to domestic matters, had become vested in the three principal organs of the State, the legislature (the two Houses of Parliament), the executive (Ministers and the Government more generally) and the judiciary (the Judges). Statutes such as the Bill of Rights (1689), the Act of Settlements (1701) in England and Wales, the Claim of Right Act 1689 in Scotland, and various Acts of Union in 1706 to 1707 formally recognised the independence of the judiciary. Under the preceding legal provisions, the role of the judiciary was to uphold and further the rule of law30 Sir Edward Coke CJ said that: “The King by his proclamation or in other ways cannot change any part of the Common Law, or Statute Law, or the customs of the realm”31. It had become established by the Bill of Rights of 1689 that the pretended power of suspending or dispensing with laws by the monarch was illegal32. The Crown’s administrative powers are now exercised by the executive being the Ministers who are answerable to the UK Parliament. However, the exercise of those powers must be compatible with legislation or the Common Law. The King in Council and any branch of the executive cannot prescribe or alter the law to be administered by Courts of Law and to do so is “out of harmony with the principles of our constitution”33. It is true that Ministers can make laws by issuing regulations, known as secondary or delegated legislation, but they can only do so if authorised by statute.
V THE SCOPE OF PREROGATIVE POWERS Today, the royal prerogative encompasses a residue of powers that remain vested in the Crown, exercisable by Ministers, provided that the exercise is consistent with Parliamentary legislation. It is “only available for a case not covered by statute”. Professor Wade described it as: “The residual prerogative is now confined to such matters as summoning and dissolving Parliament, declaring war and peace, regulating the armed forces in some respects, governing certain colonial territories, making treaties (though as such they cannot effect the rights of subjects) and conferring honours. The one drastic internal power of an administrative kind is the power to intern enemy aliens in time of war”34. Since the 17th Century, the prerogative has not empowered the Crown to change English Common or Statute Law. A prerogative power, however well established, may
30 (R)(on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5, 41- 42. 31 The Case of Proclamations (1610) 12, 74. 32 (R) (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5, 44. 33 As per Lord Parker of Waddington in The Zamora [1916] 2 AC 77, 90. 34 Professor HWR Wade: “Administrative Law” (1st Edition) (1961), p. 13 and at paragraph [47] of (R) (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5.
(2019) 4 Perth International Law Journal 71 Robert E Lindsay be curtailed or abrogated by statute. There are important areas of governmental activities even today essential to the effect of operation of the State, which are not covered by statute such as the conduct of diplomacy in war; these are viewed as best reserved to Ministers35. Although prerogative powers cannot change the domestic law, they may have domestic legal consequences. Firstly, where it is inherent in the prerogative power that its exercise will affect the legal rights or duties of others the Crown has a prerogative power to decide on the terms of service of its servants and it is inherent in that power that the Crown can alter those terms so as to remove rights, albeit such a power is susceptible to judicial review. The Crown also has a prerogative power to destroy property during times of war in the interest of national defence, although at Common Law compensation is payable. The exercise of such powers may affect individual rights, but it does not change the law because the law has always authorised the exercise of that power.36
A The Constitutional Principles: Accountability to Parliament for Prerogative Exercise The most significant area is the conduct of foreign affairs, but as Lord Oliver said in JH Rayner (Mincing Lane) Ltd v Department of Trade & Industry:37 “As a matter of the Constitutional Law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation.” Since treaty-making is outside the purview of the Courts because it is made in the conduct of foreign affairs, which is the prerogative of the Crown, this may be regarded as a necessary corollary of Parliamentary sovereignty because: “If treaties have no effect within domestic law, Parliament’s legislative supremacy within its own polity is secure. If the executive must always seek the sanction of Parliament in the event that a proposed action on the international plane will require domestic implementation, Parliamentary sovereignty is reinforced at the very point at which the legislative power is engaged”.38 A further constitutional principle was pointed to by Lord Carnwath, who also dissented with Lord Reed. He did not see the choice as simply one between Parliamentary sovereignty, exercised through legislation, and the untrammelled exercise of the prerogative by the executive. No less fundamental to the constitution is the principle of Parliamentary accountability. The executive is accountable to Parliament for its exercise
35 Ibid [48]-[50]. 36 Ibid at paragraph [52]. 37 [1990] 2 AC 418, 500. 38 Campbell McLachlan, ‘Foreign Relations Law’ (2014), 57, in (R) (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5
72 (2019) 4 Perth International Law Journal The Exercise of Prerogative Powers and their Political Outcome of the prerogative, including its actions in international law. That account is made through ordinary Parliamentary procedures. Subject to specific statutory restrictions they were matters for Parliament alone. The Court may not inquire into the methods by which Parliament exercises control over the Executive, nor their adequacy39.
VI THE SEQUEL TO THE FIRST BREXIT DECISION: THE WITHDRAWAL AGREEMENT Parliament responded to the first decision by passing the European Union (Notification of Withdrawal) Act 2017 authorising the Prime Minister to give notice of withdrawal from the EU. Parliament then proceeded with some of the legislative steps needed to prepare the United Kingdom law for leaving the EU. The European Union (Withdrawal) Act 2018 defined the ‘exit day’ but this allowed for an extension by statutory instrument if needed. It repealed the European Communities Act 1972 which Act had provided for entry into the EU (at that time the EEC). But Parliament did not now only legislate to trigger withdrawal from the European Union which was after all something which all the parties had promised in accordance with election manifestos. Crucially, section 13 of the 2018 Act now required parliamentary approval of the terms of any withdrawal agreement reached by the Ministers with the European Union. The machinery for leaving the European Union in Article 50 of the Treaty on European Union requires that the EU must negotiate and conclude an agreement with the member state “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. The European Union Treaty ceases to apply to that state when the withdrawal agreement comes into force or failing that two years after the notification unless the European Council unanimously agrees to extend that period. A withdrawal agreement with the European Union by the Ministers was concluded on the 25th of November 2018 but this agreement was rejected by the House of Commons three times. Following the voting down of the withdrawal agreement there was a change of Prime Minister with Mr Boris Johnson being chosen by the Conservative Party. He had been the leading light contending that Britain should leave the EU. However, a majority of the House of Commons would not support withdrawal from the EU without an agreement approved by Parliament and so, the European Union (Withdrawal) Act 2019 was passed, requiring the Prime Minister to seek an extension of three months from the EU if no withdrawal agreement had been approved by Parliament.
VII THE PROROGUING OF PARLIAMENT On the 28th of August 2019, members of the Privy Council attended a meeting of the Council held by the Queen at Balmoral Castle and an order in council was made that Parliament be prorogued on a day no later than the 14th of October 2019. After this, Parliament would reconvene for the Queens speech which was to set out the governments
39 Ibid [249].
(2019) 4 Perth International Law Journal 73 Robert E Lindsay legislative program. In approving the prorogation, Her Majesty was acting on advice of the Prime Minister who saw no merit in extending the deliberations of a Parliament. This is because the Parliament was now largely hostile to the United Kingdom leaving the EU without a withdrawal agreement to their liking. Some members were now calling for a second referendum to review the 2016 result. As it happened, the Prime Minister and his Ministers did get a modified withdrawal agreement with the EU but the government no longer commanded enough parliamentary support to get it approved. Accordingly, in an endeavour to secure an outright majority to pass his modified withdrawal agreement, the Prime Minister called an election for the 12th of December 2019. The result of this election has now enabled his conservative government to leave the EU on the 31st January 2020 with the modified withdrawal agreement. The framework for the future relationship with the EU is intended by the UK government is to be finalised by the 31st December 2020.
VIII THE SECOND BREXIT CASE40 As soon as the prorogation was announced, Mrs Gina Miller, who mounted the first Brexit challenge, launched proceedings in the High Court in England and Wales. Miller was seeking a declaration that the Prime Minister’s advice to Her Majesty to prorogue was unlawful. Those proceedings were heard by a divisional court, comprising the Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division. The preceding judges dismissed the claim on the ground that the issue was not justiciable. Similar proceedings were mounted in the Scottish Court of Sessions where initially the government succeeded but the Inner House, on appeal, held that the advice given to Her Majesty was justiciable, that it was motivated by the improper purpose of stymying parliamentary scrutiny of the Executive, and that the advice and the prorogation which followed it were unlawful and thus null and of no effect. There was then an appeal of both decisions to the Supreme Court which again sat all eleven members.
A The Principles in Question Firstly, the Supreme Court said that the power to order prorogation of Parliament is a prerogative power being a power recognised by the common law and exercised by the sovereign in person acting on advice in accordance with modern constitutional practice.41 Secondly, whilst the Court cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians or arises from a matter of political controversy has never been sufficient reason for the courts to refuse to consider it.42 For this, they gave the example of the Case of Proclamations43. This example outlined that an attempt to alter the law of the land by the use of the Crown’s prerogative was unlawful. The Court there holding that ‘the king hath no prerogative, but that which the law of the land allows him’ indicated that the limits of prerogative powers were set by law and were determined by the courts. Another example was Entick v Carrington
40 R (On the Application of Miller) v The Prime Minister & Others 2019 UKSC 41. 41 Ibid [30]. 42 Ibid [31]. 43 (1611) 12 Co Rep 74.
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(1765) 44 where the Court found that the Secretary of State could not order searches of private property without authority conferred by an act of parliament or the common law.45 Thirdly, the Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play. This is so because the effect of prorogation is to prevent the operation of ministerial accountability to Parliament during the period when Parliament stands prorogued. Further, a court has a duty to give effect to the law irrespective of the Minister’s political accountability to Parliament. Ministerial responsibility is no substitute for judicial review.46 Fourthly, if the issue before the court is justiciable deciding it will not offend against the separation of powers by ensuring the prorogation power is not used unlawfully. Indeed, the court will be giving effect to the separation of powers by ensuring the prorogation power is not used unlawfully.47
B Whether These Issues are Justiciable The Court saw the first issue as whether a prerogative power exists and its extent. Secondly, if accepted that a prerogative power existed and it has been exercised within its limits, the question then was whether a purported exercise of power was challengeable in the courts based on one or more of the recognised grounds of judicial review. In the Council of Civil Service Unions v Minister for the Civil Service (1985)48, the dissolution of parliament was seen by Lord Roskill as one of several powers whose exercise was – in his view – non-justiciable. It was important to appreciate that this argument advanced by the Government that prorogation is analogous with dissolution and is, therefore, an excluded category, only arises if the issue in the proceedings is properly characterised as one concerning the lawfulness of the exercise of a prerogative power within its lawful limits rather than as one concerning the lawful limits of the power and whether they have been exceeded. No question of justiciability can arise in relation to whether the law recognises the existence of a prerogative power. It further cannot arise in relation to its legal limits. These are, by definition, questions of law for the courts.49
C Deciding the Limits of Prerogative Power Whilst it is relatively straightforward to determine the limits of a statutory power, determining the limits of a prerogative power which is not constituted in any document is less straightforward. Nevertheless, every prerogative power has its limits and it is the function of the court to determine where they lie. The common law recognises prerogative power and that power must be compatible with common law principle that may illuminate where its boundaries lie.50
44 (1765) 19 State Trials 1029. 45 Ibid [32]. 46 Ibid [32]. 47 Ibid [34]. 48 [1985] AC 374 Lord Roskill mentioned at page 418. 49 Ibid [36]. 50 Ibid [38].
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Constitutional principles may be developed by the common law. For example, that justice must be administered in public and the principle of the separation of powers must exist. The principle may extend to the application of governmental powers including prerogative powers. For example, the Executive cannot exercise prerogative powers to deprive people of their property without the payment of compensation.51
D Sovereignty of Parliament is a Foundational Principle The Court said that the sovereignty of Parliament would be undermined as the foundational principle of our constitution if the Executive could use the prerogative to prevent Parliament from exercising its legislative authority. That would be the position if there was no legal limit on the power to prorogue Parliament.52 The longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government.53 A prerogative power is, therefore, limited by statute and the common law and will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of parliament to carry out its constitutional functions as the legislature and as the body responsible for the supervision of the Executive.54
E The Prime Minister’s Explanation for Prorogation The Government argued that there were no circumstances whatsoever in which the Court could review a decision to prorogue Parliament.55 However, it is a concomitant of Parliamentary sovereignty that the length of prorogation is not unlimited.56 The question then is whether the Prime Minister’s explanation for advising the Parliament should be prorogued was a reasonable justification. The Government argued that to declare the prorogation null and of no effect is contrary to Article 9 of the Bill of Rights of 1688 that states “the freedom of speech in debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. It is a principal role of the courts to interpret Acts of Parliament. However, in R v Chytor (2010)57 a prosecution of several members of Parliament for allegedly making false expenses claims was resisted. The grounds were that these claims existed as ‘proceedings in Parliament’ that ought not to be ‘impeached or questioned’ in any court. It was held unanimously by nine justices that MP’s expenses were not ‘proceedings in Parliament’. The case established that it is for the Court and not for Parliament to determine the scope of parliamentary privilege, whether under Article 9 of the Bill of Rights or matters within the exclusive cognisance of Parliament. The principle in Article 9 is directed to freedom of speech and debate. The prorogation
51 Ibid [40]. 52 Ibid [42]. 53 Ibid [48]. 54 Ibid [50]. 55 Ibid [43]. 56 Ibid [44]. 57 (2010) UKSC 52.
76 (2019) 4 Perth International Law Journal The Exercise of Prerogative Powers and their Political Outcome itself takes place in the presence of members of both houses but it cannot be sensibly described as a ‘proceeding in Parliament’. It is not a decision of either house but, rather, it is something that is imposed upon members of Parliament from outside58. The court was therefore not precluded by Article 9 or by any wider parliamentary privilege from considering the validity of the prorogation itself. The Prime Minister did not submit any evidence to the Court about what passed between him and the Queen when advising her to prorogue. However, the Court had three documents leading up to the advice, one of which contained the Prime Minister’s hand-written comments on a memorandum that said ‘the whole September session is a rigmarole introduced (words redacted) to show the public that MP’s were earning their crust, so I don’t see anything especially shocking about this prorogation.’59 The words redacted above were ‘by girly swot Cameron’,60 a reference to the former Prime Minister David Cameron who had been at Eton School with Johnson. The minutes of a Cabinet meeting held by conference call on the 27th of August, after the advice had been given, asserted that prorogation had not been driven by Brexit considerations. It had been portrayed as a means to prevent MP’s intervening to prevent the United Kingdom’s departure from the EU due on the 31st of October 2019 but it was contended that was not so. A Queen’s speech was to be delivered on the 14th of October and the Prime Minister sent a letter to MP’s setting out ‘…an ambitious and domestic legislative agenda for the renewal of our country after Brexit.’61
F The Legal Test of Unlawfulness However, the longer Parliament stands prorogued the greater the risk that responsible Government may be replaced by unaccountable Government.62 The relevant limit in this case upon the power to prorogue can be expressed thus: that the decision to prorogue Parliament will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its Constitutional functions as a legislature and as the body responsible for the supervision of the Executive.63 This was not a normal prorogation in the run up to a Queen’s speech. It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and the exit date from the EU set for the 31st of October 2019.64 Sometimes, this interruption may not matter but where a fundamental change was due to take place in the UK constitution on the 31st of October 2019 it was important65 There was no reason given for closing Parliament for five weeks on the pretext that
58 Ibid [68]. 59 Ibid [18]. 60 Stephen Sedley, ‘In Court’(2019) London Review of Books 16. 61 Ibid [21]. 62 Ibid [48]. 63 Ibid [50]. 64 Ibid [56]. 65 Ibid [57].
(2019) 4 Perth International Law Journal 77 Robert E Lindsay this time was needed for preparation of the Queen’s speech setting out the government’s program. The unchallenged evidence of Sir John Major, a former Prime Minister, that 4-6 days is sufficient for that purpose was accepted.66 It was impossible to conclude that there was any reason to advice a prorogation of five weeks.67 It was found therefore that the advice was unlawful because it was outside the powers of the Prime Minister to give it and therefore it was null and of no effect.
G The Political Consequences The two decisions of the Supreme Court have had political consequences well beyond the arcane points of law which the Court decided. Had the dissenting view of the three Judges succeeded in the first Brexit case, Theresa May’s government would have been able to implement the withdrawal agreement with the EU without recourse to Parliament for approval of that agreement. Accordingly, the United Kingdom would have left the EU long before now. It is because in the years following, the ousting of the Stuarts, the Crown ceased to govern through the Ministers. Thus, Ministers began to govern through the crown that an issue like the prorogation crisis addressed in the second Brexit case has been able to arise.68 The Bill of Rights 1688 – 89 created today’s constitutional monarchy, leaving in existence a range of prerogative powers that has been significantly reduced in their scope by the recent decisions. The first Brexit case affirmed the established proposition that prerogative powers do not allow for extending or altering laws which confer rights upon individuals where those are enjoyed under domestic law. Although the executive may make treaties under international law in exercise of the prerogative those powers have no effect upon the domestic law unless parliament legislates to adopt the treaty terms as part of the domestic law. The two Brexit cases demonstrated that Ministers may only govern as long as they have the confidence of parliament; that Ministers have an accountability to parliament for their conduct of both foreign and domestic policy; that an executive becomes rudderless where it does not have parliamentary support to pass legislation; and that the courts may hold an executive government to account for an unlawful exercise of its prerogative powers. It must be now doubted whether even the limited prerogative powers set out by Professor Wade and cited in the first Brexit case or those described by Lord Roskill in the Council of Civil Service Union case alluded to in the second Brexit case, are non- justiciable. Lord Roskill saw the prerogative powers free from challenge as the making of treaties; the defence of the realm; the prerogative of mercy; the grant of honours; the appointment of ministers; and the dissolution of government.69 The second Brexit case indicates that the judicial role to patrol both the boundaries
66 Ibid [59]. 67 Ibid [61]. 68 William Anson, ‘The Law and Custom of the Constitution’ (2019) LRB 16. 69 1985 AC 374 Lord Roskill , 418.
78 (2019) 4 Perth International Law Journal The Exercise of Prerogative Powers and their Political Outcome of political lawfulness and to scrutinise by judicial review political actions has been enlarged. This could be short-lived as Borris Johnson’s new Attorney General is reported to be seeking more control over the judiciary. However, the second Brexit case recognised that Constitutional principles may be developed by the common law and that this would include recognising the separation of powers. Judicial review remains a constitutionally recognised judicial obligation.
IX MR DONALD TRUMP’S PREROGATIVE POWERS The US President’s prerogative powers are given under Article II s1 of the US Constitution. In the recent unsuccessful impeachment of President Trump by the Democrats, the two articles of impeachment alleged abuse of office and obstruction of Congress. The President’s lawyers contended that neither the two articles constituted grounds for impeachment under the US Constitution which limited impeachment to “treason, bribery, or other high crimes and misdemeanours”. The President’s case was that his discussions with the Ukrainian President over foreign aid supplied by the United States accorded with his constitutional powers and did not fall within the definition for impeachment whilst the Democrats maintained that the definition included abuse or violation of public trust which did not necessarily amount to criminal misconduct.70 As Sir Henry Maine points out, under the US Constitution, the powers of the President reflected many of the prerogative powers of the Monarch George III. Maine added that the US constitution was a modified version of the British Constitution in existence between 1760 and 178771. He explains that just as George III refused to submit to his cabinet’s authority, so the framers of the US Constitution: “gave the whole of executive government to the President and they did not permit his ministers to have a seat or speak in either branch of the legislature. They limit his power and theirs, not however by any contrivance known to modern English constitutionalism but by making the office of President terminable at intervals of four years. Later the British King could not make treaties or even war save through the executive acts of his or her ministers, but the American President has retained the significant prerogative powers which existed in those earlier times”72. Unlike in the United States, the Brexit cases asserted the sovereignty of Parliament and placed severe limits upon the scope of executive prerogative action. That said, prerogative powers continue to play a vital role in quashing intractable political controversies such as when Sir John Kerr dismissed the Whitlam Ministry in 1975 and Ratu Sir George Cakabou installed a new ministry in in Fiji in 1979.
70 Alexander Hamilton, ‘US Judiciary Committee 1974 “Constitutional Grounds for Presidential Impeachment’ (2019), The Federalist, 65. 71 Henry Maine, Popular Government: four essays: I. Prospects of popular government; II. Nature of democracy; III. Age of progress; IV Constitution of the United States (J Murray, 1909) 253. 33 Ibid [213] – [214]. 72 Ibid.
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80 (2019) 4 Perth International Law Journal Comparative Legal Methodology COMPARATIVE LEGAL METHODOLOGY AND ITS RELATION TO THE IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW
JING ZHI WONG1♣
ABSTRACT The lack of clarity about the content and application of the relevant rules and principles relating to the identification of customary international law, as Professor Matthew Craven posits, stem from a failure to appreciate fully the conceptual problems that underlie the construction of doctrine in international law. Indeed, these difficulties broadly stem from the lack of any agreed theoretical structure through which knowledge could be understood and utilised. The solution, it is argued, boils down to methodology. This article argues that comparative legal methodology should be applied as an epistemology of legal reasoning to give the study of customary international law a framework through which its content and application could be better articulated, structured, appraised, and assessed.
I INTRODUCTION The lack of clarity about the content and application of the relevant rules and principles relating to the identification of customary international law, in Professor Matthew Craven’s view,2 stem from a ‘failure to appreciate fully the conceptual issues that underlie the construction of doctrine [of law] in international law’.3 Professor Craven further posits that the root of these issues is confusion arising from ‘the lack of any agreed theoretical structure’ as regards the analysis and understanding of the ‘creation, assumption [and] imposition of legal obligation in international law’.4 Indeed,
1 ♣ JD (Research by Invitation) Candidate, The University of Western Australia. BSc ’18 (W. Aust). Part of this article was based on research done by the author and his teammates in preparation for the 2020 Philip C Jessup International Law Moot Court Competition. The author would like to thank Professor Camilla Andersen, Emeritus Professor Peter Handford, Matthew Thompson, Adjunct Professor Holly Cullen, Dr Melanie O’Brien, Andrew Hanna, Ebony Back, Zaccary Molloy Menschelyi, Alexander Gibson, Aleasha Sanchez-Lawson, Thomas Coltrona, Tayu Wilker and Chansa Kalumba for useful discussion which informed this article in substantial ways. The author would also like to thank Emma Helsby, Fiona Alexander, Sandy Norman, Chloe Czerwiec, and Catherine Kafentzis of the Beasley Law Library for their invaluable assistance during the moot competition and the preparation of this article. The author would also like to thank the editors and the anonymous reviewer for their comments. This article was written after the conclusion of the moot competition. Responsibility for the views expressed remains solely with this author. ORCiD: [https://orcid. org/0000-0002-4361-7444] 2 Matthew Craven, ‘The Problem of State Succession and the Identity of States Under International Law’ (1998) 9 European Journal of International Law 142, 142. 3 Ibid 142–3. 4 Ibid 142–3. (2019) 4 Perth International Law Journal 81 Jing Zhi Wong as an illustrative example, the late Philip C Jessup in his book Transnational Law, some forty years earlier, opined that these difficulties ‘stem from the lack of agreement on the terminology [and vocabulary5] for the subject matter under examination’.6 The term ‘international law’ — as a purported placeholder term for the broad province of ‘transnational law’, ‘the law of nations’, or ‘droit des gens’ — is inexact and misleading since it obscures the true nature of the subject matter.7 ‘International law’, in the words of Jessup, is a study of not only the relations of one state to another or among states (inter- national law) but a study of ‘all law which regulates actions or events that transcend national frontiers’ (trans-national law).8 As will be demonstrated, the true nature of international law is obscured by confusion.9 This confusion makes it difficult to ascertain the character, nature, scope and content of international law. But far from setting down a fixed predetermined idea of what is ‘international law’, this article argues that some methodology or epistemology should be adopted in the identification of customary international law. In line with Professor Geoffrey Samuel’s view, it is argued that a comparative legal epistemology (or social science methodology10) should be applied to the study of customary international law to give it a framework through which its content and application could be better analysed and understood.11 This article briefly analyses Professor Samuel’s comparative methodology,12 and argues that his methodological approach to comparative law, as an epistemology of legal reasoning, facilitates better articulation, appraisal and assessment
5 Martti Koskenniemi, ‘What Use for Sovereignty Today?’ (2011) 1 Asian Journal of International Law 61, 68. 6 Philip C Jessup, Transnational Law (Yale University Press, 1956) 1–3, citing Georges Scelle, Precis de droit des gens (Recueil Sirey, 1932) pt 1, vii. 7 Jessup (n 6) 1–3; cf David Kennedy, ‘International Legal Education’ (1985) 26 Harvard International Law Journal 361, 373–6; cf Hart (n 174) 215. 8 Jessup (n 6); Roger Cotterell, ‘What is Transnational Law’ (2012) 37 Law and Social Enquiry 500. The ‘transnational’ view of ‘international law’ is particularly important, especially in an era where it has been emphasised that the future of international law is domestic, based on cooperation and integration. Out of an enormous literature, see especially Giacco (n 86) 27; Anne-Marie Slaughter and William Burke-White, ‘The Future of International Law is Domestic (or, The European Way of Law)’ (2006) 47 Harvard International Law Journal 1103; Andre Noellkaemper and Janne Nijman (eds), New Perspectives on the Divide Between National and International Law (Oxford University Press, 2007) 13; Eibe Riedel, ‘Standards and Sources: Farewell to the Exclusivity of Sourced Triad in International Law’ (1991) 2 European Journal of International Law 58, 58–9. Cf Gaetano Morelli Lectures (Lectures, Sapienza University of Rome, 29 May 2014 – 13 October 2018). 9 Out of an enormous literature, see Koskenniemi (n 5) 68; Craven (n 2) 142. 10 Cf Geoffrey Samuel, ‘Can Social Science Theory Aid the Comparative Lawyer in Understanding Legal Knowledge’ (2019) 14(2) Journal of Comparative Law 311. 11 Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Hart Publishing, 2014) 2, citing Olivier Corten, Methodologie du droit international public (Editions de l’Universite de Bruxelles, 2009) 12. See also Gaetano Morelli Lectures – 5th Edition (2018) – ‘Methodologies of International Law’ (Lectures, Sapienza University of Rome, 11–13 October 2018); Gaetano Morelli Lectures – 4th Edition (2017) – ‘Rethinking the Doctrine of Customary International Law’ (Lectures, Sapienza University of Rome, 26–27 May 2017). 12 Geoffrey Samuel, ‘Taking Methods Seriously (Part One)’ (2007) 2(1) Journal of Comparative Law 94; Geoffrey Samuel, ‘Taking Methods Seriously (Part Two)’ (2007) 2(2) Journal of Comparative Law 210. See also Geoffrey Samuel, ‘Is Law Really a Social Science’ (2008) 67(2)Cambridge Law Journal 288; Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Hart Publishing, 2014). Professor Samuel’s book An Introduction to Comparative Law Theory and Method presents the arguments and proofs in ‘Taking Methods Seriously (Part One)’ and ‘Taking Methods Seriously (Part Two)’ in a well-structured manner that is easy to follow. 82 (2019) 4 Perth International Law Journal Comparative Legal Methodology of doctrine in international law. Part II looks at some problems relating to the identification of customary international law. Part III, with reference to Part II, analyses the role of comparative legal methodology in relation to international law. It also argues that Professor Samuel’s methodological approach to comparative law, as an epistemology of legal reasoning, facilitates better articulation, appraisal, and assessment of doctrine in international law.
II PROBLEMS WITH THE IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW The difficulty with establishing the existence of customary international law arises, in part, because of the abundance of ways in which customary international law can be supported and founded.13 In the language of Sir Henry Maine, there exist a ‘substantive aggregate’ of sources from which materials can be used to support or evidence the existence or development of custom.14 This is because customary international law can be inferred, deduced, induced, or intuitively asserted from sources that evidence the internal motivation of states,15 such that it can be said that the ‘generality of subjects of international law accept [an asserted] rule as law’.16 These sources generally include treaties and ratifications of treaties,17 decisions of national courts, national legislation, municipal law,18 administrative statements and decisions of governments,19 opinions of national legal advisers, claims, declarations in abstracto,20 diplomatic correspondences, practice of international organisations,21 etc.22 However, despite the abundance of sources from which state’s internal motivations can be evidenced, the problem lies in the analysis and appraisal of these sources, as well as the criterion on which customary international law is found. First, finding material that actually and conclusively evidences a state’s internal motivations is an uphill task. As Judge Sørensen noted in the North Sea Continental Shelf Cases:23 [T]his is a problem of legal doctrine which may cause great difficulties in
13 Koskenniemi, From Apology to Utopia (n 26) 385; this is a problem of law’s intelligibility. 14 Maine (n 79) 11. 15 Koskenniemi, From Apology to Utopia (n 26) 363. Cf actions undertaken because of coercion, goodwill, or bargaining: Colombian-Peru Asylum Case (Judgment) [1950] ICJ Rep 266, 277, 286; Dispute Between the Government of Kuwait and the American Independent Oil Co (1982) 21 ILM 976 (Award). Cf ‘rule of force’ in Keeton (n 180) 45–6. 16 Koskenniemi, From Apology to Utopia (n 26) 384, citing Georg Schwarzenberger; Statute of the International Court of Justice art 38(1)(b). 17 Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Rep 4, 22–3; SS Wimbledon [1923] PCIJ Rep, Ser A, No 1, 25; Territorial Jurisdiction of the International Commission of the River Oder [1929] PCIJ Rep, Ser A, No 23, 27; Panevezys-Saldutiskis Railway [1939] PCIJ Rep, Ser A/B, No 76, 51–2 (Dissenting Opinion of Judge Erich); Hersch Lauterpacht, The Development of International Law by the International Court (Stevens & Sons, 1958) 377–8. 18 Case Concerning Certain German Interests in Polish Upper Silesia (Germany v Poland) [1926] PCIJ Rep, Ser A, No 7, 17 19 Ibid. 20 Michael Akehurst, ‘Custom as a Source of International Law’ (1975) 47 British Yearbook of International Law 1, 53. 21 See, eg, Chagos Archipelago Advisory Opinion (n 115) [150]. 22 (1950) II Yearbook of the International Law Commission 368 et seq. 23 North Sea Continental Shelf Cases (n 91) 246 (Dissenting Op of Judge Sorensen). (2019) 4 Perth International Law Journal 83 Jing Zhi Wong international adjudication. In view of the manner in which international relations are conducted, there may be numerous cases in which it is practically impossible for one government to produce conclusive evidence of the motives which have prompted the action and policy of other governments.24 Second, these sources have dual — sometimes competing — functions in the identification and classification of customary international25 law. They can be declaratory of existing customary international law or constitutive of the sources or the elements of developing new customary international law.26 As Judge Alvarez noted in the Reparations case,27 ‘it is quite impossible to say where the development of law ends and where its creation begins’.28 Third, there is difficulty in discerning whether there is sufficient support for an asserted rule of customary international law. As will be demonstrated below, the point at which the combination of state practice and opinio juris become customary international law is, at best, unclear. These difficulties, stemming from problems of substance and methodology,29 are apparent in the jurisprudence of the World Court. In relation to the identification of customary international law generally, and from general assembly resolutions specifically, this can be illustrated with reference to: a) different valid thresholds (strict versus flexible) and analytical approaches (induction versus deduction) adopted by the World Court in establishing customary international law (analysed in Parts II.B.1 & II.B.2 of this article); b) the rise of intuitive ‘assertion’ as an approach taken by the World Court in identifying customary international law (analysed in Part II.B.3 of this article).
A The Concept of Customary International Law At a conceptual level, ‘customary’ international law may be articulated with reference to a modified articulation of Professor Pocock’s description of English Customary Law:30 When a reasonable act once done is found to be good and beneficiall [sic]
24 Ibid. 25 These can be characterised as competing or complementary, depending on the context. Cf Li Chen, ‘Tracing Chinese Scholar Chen Tiqiang’s Pursuit of International Law Education and His Major Contribution to the Doctrine of Recognition’ (2020) 10 Asian Journal of International Law 68, 76. This dual function dichotomy is addressed in greater detail by Alvarez-Jimenez: Alberto Alvarez-Jimenez, ‘Methods for the Identification of Customary International Law in the International Court of Justice’s Jurisprudence: 2000-2009’ (2011) 60 International & Comparative Law Quarterly 681. 26 Nicaragua (n 115) 254-5 [70]; See also, Antonio Tzanakopoulos, ‘Domestic Courts in International Law: The International Judicial Function of National Courts’ (2011) 34 Loyola of Los Angeles International & Comparative Law Review 133, 135-6; Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Lakimiesliiton Kustannus, 1989) 5. 27 Reparations for Injuries Suffered in the Service of the United Nations (1949) ICJ Rep 174, 190 (Sep Op Judge Alvarez). 28 Ibid. 29 Eg, Craven (n 2) 142; See also, David Kennedy, ‘The Sources of International Law’ (1987) 2 American University Journal of International Law and Policy 1. 30 J G A Pocock, The Ancient Constitution and the Feudal Law: English Historical Thought in the Seventeenth Century (W W Norton & Co, rev ed, 1967). 84 (2019) 4 Perth International Law Journal Comparative Legal Methodology to [states], and agreeable to their nature and disposition, then do they use it [in the belief that it expresses the law] and practice it again and again, and so by often iteration and multiplication of the act it becometh a Custome; and being continued without interruption time out of mind [in the belief that it expresses the law], it obtaineth the force of a Law.31 As apparent from the above quote, customary international law realistically speaking, is based upon the common consciousness of plural states.32 As Savigny posits: [T]his existence is an invisible thing; by what means can we recognize it? We do so when it reveals itself in an external act when it steps forth in usage, manners, custom; in the uniformity of a continuing and therefore lasting manner of action we recognize the belief of [states] as its common root and one diametrically opposite to bare chance.33 Customary International Law consists of two components. These are an objective and a subjective element: ‘actual practice and opinio juris of states’ respectively.34 Customary international law ‘consist of rules of law derived from the consistent conduct of states (state practice) acting out of the belief that the law required them to act that way (opinio juris sive necessitatis)’.35 At the practical level, there are divergent approaches taken by the World Court in realising the conceptual articulation of customary international law. These divergent approaches stem from divergent understandings of the formation of doctrine in international law. But why, then, does this pose a problem? Granted that the jurisprudence of the World Court has no formal equivalent binding effect in the vein ofstare decisis,36 the unsettled state of affairs in this province of international law may pose practical difficulties. As Judge Tanaka posited in Barcelona Traction: previous decisions of the World Court must be considered as having a ‘tremendous influence upon the subsequent
31 Ibid 33 (emphasis added); In other words, this refers to ‘legal custom’ or ‘custom stricto sensu: See P J Fitzgerald, Salmond on Jurisprudence (Sweet & Maxwell, 12th ed, 1966) (‘Salmond’) 192-3; cf Stone Sweet (n 115): ‘dyads’ and ‘triadic dispute resolver’; Note that duration appears not as critical provided that the elements of consistency and generality are satisfied: North Sea Continental Shelf Cases (n 92) [74]: ‘passage of only a short period of time is not necessarily … a bar to the formation of a new rule of customary international law …’. 32 Savigny, System of the Modern Roman Law (n 42) 28; cf Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Arno Press, 1975) 443-5, 449-51, 470-1. 33 Savigny (n 42) 28. 34 Continental Shelf (Libyan Arab Jamahiriya/Malta) [1985] ICJ Rep 13, 29-30 [27]: The World Court noted that these elements as ‘materials of customary international law’ were ‘axiomatic’; Colombian-Peru Asylum Case (Judgment) [1950] ICJ Rep 266, 277, 286. 35 Shabtai Rosenne, Practice and Methods of International Law (Oceana Publications, 1985) 55; Asylum Case (n 34) 277. 36 Statute of the International Court of Justice art 59; cf Beamish v Beamish (1861) 9 HLC 274, 380 (Lord Halsbury). (2019) 4 Perth International Law Journal 85 Jing Zhi Wong course of the Court’s jurisprudence’.37 This is because decisions of the World Court are subsidiary sources of international law38 and have an informal binding nature: ‘binding’ in the sense that its judgments are taken to be the ‘correct expression’ of law; ‘correct’ in the sense that their reasons aid in ascertaining the correct state of the law.39 According to Professor Schwarzenberger, past decisions of the World Court have informal precedential value because they contain intrinsic arguments which strengthen the conclusion of their reasons.40 The divergent approaches taken by the World Court in identifying customary international law reflects confusion about the formation of doctrine within it. There is difficulty is ascertaining the ‘real’ state of international law.
B Different Conceptions of Custom and Different Thresholds for Establishing Customary International Law The World Court has taken several different approaches to establishing customary international law. It has adopted several different articulations of the thresholds at which sufficient actual practice and opinio juris of states may be described as providing enough support to conclude the existence of customary international law. This is partly due to the different conceptual understandings of customary international law, as well as different views about the ways in which its existence may be concluded from sources that evidence states’ internal motivations (ie, deduction, induction, and intuitive assertion).41 This conundrum can also be seen in the World Court’s approach to UN General Assembly resolutions.
1 Custom as Strictly Declaratory of International Law: Traditional Strict Induction As Savigny posits, the traditional view of customary international law is that it is
37 Barcelona Traction, Light and Power Company Limited (Preliminary Objections) (Judgment) [1964] ICJ Rep 6, 67 (Sep Op of Judge Tanaka); Separate and Dissenting opinions of the World Court are analogous to doctrinal views than to Court decisions. They belong to the teachings of the most highly qualified publicists of different nations mentioned in Art 38(1)(d): Alain Pellet, ‘Decisions of the ICJ as Sources of International Law’ (2018) 2 Gaetano Morelli Lecture Series 7, 21-2; cf Application for Review of Judgment No 333 of the UN Administrative Tribunal (Advisory Opinion) [1987] ICJ Rep 18, 45 [49]: ‘In order to interpret or elucidate a judgement it is both permissible and advisable to take into account any dissenting or other opinions appended to the judgement. Declarations or opinions drafted by members of a tribunal at the time of a decision, and appended thereto, may contribute to the clarification of the decision’. 38 Statute of the International Court of Justice art 38(1)(d). 39 Hersch Lauterpacht, ‘Westlake and Present Day International Law’ (1925) 15 Economica 307, 315; Diplomatic Protection (2760th Meeting), UN Doc. A/CN.4/529, sect.A, A/CN.4/530 and Add.1, A/CN.4/L.631 (2003) Yearbook of the International Law Commission 59; Succession of States in Respect of Treaties, UN Doc. A/CN.4/SR.1288 (1974) I Yearbook of the International Law Commission 212, 214 [29]; Tom Bingham, ‘Preface’ in Shaheed Fatima, Using International Law in Domestic Courts (Bloomsbury, 2005) xi; Antonio Tzanakopoulos and Christian Tams, ‘Introduction: Domestic Courts as Agents of Developments of International Law’ (2013) 26(3) Leiden Journal of International Law 531, 533; This view has support in domestic contexts, eg, Peter L Waller, ‘Transfer of Land – Mental Incapacity of Transferor – Voidability, But no Avoidance, of Instrument of Transfers’ (1957) 12 Res Judicatae 101, 102. 40 Georg Schwarzenberger, ‘The Inductive Approach to International Law’ (1947) 60(4) Harvard Law Review 539, 555. 41 Cf Giacco (n 86). See Anastasios Gourgourinis ‘General/Particular International Law and Primary/ Secondary Rules: Unitary Terminology of a Fragmented System’ (2011) 22(4) European Journal of International Law 993, 993-1003. 86 (2019) 4 Perth International Law Journal Comparative Legal Methodology ‘the badge, but not the origin, of positive [international] law’.42 Custom was merely declaratory of the sources of law but was not constitutive of law itself (ie, the finding of Custom was not a law-creating fact).43 The terms ‘customary international law’ and ‘custom’ refer to the unwritten state of international law. When analysed ‘bottom-up’,44 they are evidenced by a sufficient combination of state practice and accompanying opinio necessitatis. 45 In this sense, for a court to find the existence of customary international law, there must be a high degree of state practice and opinio juris to justify that conclusion. As a corollary, the approach to establishing customary international law must be one of enquiry, such that the case for the establishment of custom is built up and made out. On this view, customary international law could be seen as a source of international law but not because of the recognition given to it by an adjudicatory body.46 The recognition of its binding nature by adjudicatory bodies was merely a consequence of customary international law being a reflection of the unwritten state of extant international law. In its 1969 North Sea Continental Shelf Cases judgment, the World Court adopted this approach. The World Court took a strict, inductive, logical approach in fulfilling this traditional conception of customary international law.47 In doing so, the plurality prescribed a high benchmark, such that one could say there was clear support for the existence of a purported rule of customary international law. The World Court set down this high threshold criteria of ‘extensive and virtually uniform’ state practice,48 accompanied by general belief (opinio juris) amongst states that ‘the practice [adopted was] regarded … as mandatory and not because they thought it convenient’.49 In this way, customary international law was formed closely ‘on the back’ of state practice and accompanying opinio juris.50 Therefore, customary international law recognised by the World Court was declaratory: merely a reflection or description of the unwritten law that
42 Quoted by Hans Kelsen (n 57) 227, referring to Friedrich Karl von Savigny, System des Heutigen Romischen Rechts (1840) 35: ‘Gewohnheit [ist] das Kennzeichen des positiven Rechts, nicht dessen Entstehungsgrund’; cf judicial decisions: Kelsen (n 57) 237-8; see also, Friedrich Carl von Savigny, System of the Modern Roman Law, tr William Holloway (Hyperion Press, 1978) 28-9. 43 Kelsen (n 57) 227. 44 Gourgourinis (n 41) 1003. 45 Contra law-creating fact: Kelsen (n 56) 227-8. 46 ‘According to a positivistic theory of law, the source of law can only be law’: Kelsen (n 57) 233. 47 Alvarez-Jimenez (n 25) 686, 697; Talmon (n 148) 420; see also Arrest Warrant (n 97) [58]; The latest example of the application of this strict approach was in the 2008 judgment in the Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge [2008] ICJ Rep 12. For summary of the Pedra Branca case, see CG Lathrop, ‘Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)’ (2008) 102 American Journal of International Law 828. On recent developments on that case since 2008, see eg, Jing Zhi Wong, ‘Malaysia’s Application for Revision of the Pedra Branca Judgment: Case Note on the Question of Admissibility’ (2017) 2 Perth International Law Journal 62; Sienho Yee, ‘S. Jayakumar and Tommy Koh, Pedra Branca: The Road to the World Court’ (2017) 16(3) Chinese Journal of International Law 617. 48 North Sea Continental Shelf Cases (n 92) [74]. 49 Alvarez-Jimenez (n 24) 687, referring to North Sea Continental Shelf Cases (n 92). In relation to establishing regional or local custom, the test is similarly – ‘constant and uniform usage’: Colombian-Peruvian Asylum Case (Judgment) [1950] ICJ Rep 266, 276-7; Custom may also exist exclusively between two states, or on a specific subject matter, ie: a territorial regime of free passage:Case Concerning Right of Passage over Indian Territory (Merits) (Judgment) [1960] ICJ Rep 6, 39-40; cf Aaland Islands (1920) 3 League of Nations Official Journal Special Supplement 3. 50 Anthea Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2015) 60(1) International and Comparative Law Quarterly 57, 70. (2019) 4 Perth International Law Journal 87 Jing Zhi Wong existed amongst nations. This approach is consistent with the view that the true source of international law was the unwritten state of extant international law, evidenced by state practice and opinio juris.
2 Custom as Constitutive of International Law: Modern Flexible Deduction By contrast, in its 1986 Nicaragua decision, the World Court took a modern, deductive,51 and less strict approach to the establishment of rules of customary international law.52 By introducing deductive legal reasoning into the analysis — and, with that, the fictio of crystallisation of customary international law53 — the court increased the tolerances in which customary international law could be inferred and justified from various sources.54 Under this approach, the test was altered in two significant aspects. First, complete uniformity of state practice was no longer necessary.55 For the World Court to deduce or find the existence or crystallization of customary international law, the requirement was that state practice were ‘in general, consistent with such a rule’.56 In this respect, the World Court, consistent with the writings of Hans Kelsen some fifteen years earlier,57 held that ‘instances of State conduct inconsistent with a given rule should generally … be treated as breaches of that rule, not as indications of the recognition of a new rule’.58 Second, the World Court held that opinio juris may not only be inferred from states’ beliefs that they are complying with a mandatory precept,59 but also from State’s voting conduct in declarations and resolutions of the General Assembly.60 In this sense, by inverting the process of creation, the Nicaragua decision loosened
51 See verbatim text in Nicaragua (n 115) [186]; Talmon (n 147) 423-4 posits three methods of deduction, normative, functional, and analogical deduction. 52 Alvarez-Jimenez (n 25) 687-8; See also, Martti Koskenniemi, The Politics of International Law (Hart, 2011) viii, 9. 53 Nicaragua (n 115) [186], [207]; cf Michael Inwood’s commentary on c. cxv of Hegel’s Introductory Lectures on Aesthetics. Hegel (n 222) 195: ‘… [I]n Hegel’s view, crystallization, …, is relatively independent of gravitational force’. In this vein, the phenomenon of crystallization does not necessarily describe, as a matter of fact, sufficiently extant underlying state practice and opinio juris. 54 Talmon (n 148) 420, referring to Wilfred Jenks, The Prospects of International Adjudication (Stevens & Sons, 1964) 646; See also, Richard A Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification (Stanford University Press, 1961) 12 et seq, 16, 37: this allows ‘a conclusion [that] is justified [through] the process of justification’; Maksymilian Del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Hart Publishing, 2020) pt 1, ch 1. 55 Nicaragua (n 115) [186]. 56 Ibid. 57 Hans Kelsen, Pure Theory of Law (University of California Press, 1970) 88, 212-3: occasional transgression of a rule does not water down its validity, provided that the norm contained by that rule is reasserted by the international legal community from time to time. 58 Ibid; See also, Anthea Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’ (2001) 95)4) American Journal of International Law 757, 785; Nicaragua (n 115) [186], [207]. 59 Alvarez-Jimenez (n 25) 687-8; cf Paul Kahn, Origins of Order: Project and System in the American Legal Imagination (Yale University Press, 2019) 170. 60 Nicaragua (n 115) [188]: ‘This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’. 88 (2019) 4 Perth International Law Journal Comparative Legal Methodology the requirements for a finding of the existence of customary international61 law and privileged legal normativity over description.62 It was no longer necessary to build up a case to such a high degree, as under the traditional conception, in order for the World Court to conclude that custom existed and was factually justified. It was also no longer necessary to source the law in actual state practice. By adopting this approach, the World Court adopted the view that customary international law (‘custom’) was also constitutive, not merely declaratory, of the state of international law.63 To use the language of Hans Kelsen, custom, in this view, was considered to ‘[also] be a law-creating fact’.64 Because customary international law was could be both declaratory and constitutive of law65 — ie, both a factual conclusion that there was sufficient combination of state practice and accompanying opinio necessitates; and a fact that created law — differences in conclusions or finding as to the existence of customary international law could arise.66 Here, the competing difference between the traditional (inductive) and modern (deductive) conception of custom was that of the qualitative and quantitative thresholds of factual support at which the conclusion or finding of custom could be arrived at. Indeed, the World Court does not have to conclude using the traditional conception that, as a matter of fact, the purported rule of custom exists. It may, under the modern conception, opt to findor decide that international law shall contain such a rule.67 Under the latter approach, where the finding is not a conclusion that is open under the former approach, it necessarily follows that the World Court is filling in the gaps. Customary international law established this way obtains infallibility, not entirely because of it being an accurate description of the state of existing unwritten law amongst nations; rather, it is because of it being a combination of both that and the authoritative nature of the World Court.68 It follows that Nicaragua recognised the normative and functional value of opinio juris in the creation of customary international law and the gap-filling of lacunae in international law. Nicaragua also recognised the value that global governance and UN
61 Alvarez-Jimenez (n 25) 688, referring to O Schachter, ‘New Custom: Power, Opinio Juris and Contrary Practice’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubieszewski (Kluwer Law International, 1996) 531, 532. 62 Roberts (n 58) 762, referring to Martti Koskenniemi, From Apology to Utopia (n 26) 41. 63 See Kelsen (n 57) 227. 64 Kelsen (n 57) 227. 65 See, on a related note, eg, Antonio Tzanakopoulos, ‘Domestic Courts in International Law: The International Judicial Function of National Courts’ (2011) 34 Loyola of Los Angeles International & Comparative Law Review 133, 138-40; Helmut Aust, Alejandro Rodiles and Peter Staubach, ‘Unity or Uniformity? Domestic Courts and Treaty Interpretation’ (2014) 27 Leiden Journal of International Law 75, 75; Antonio Tzanakopoulos and Christian Tams, ‘Introduction: Domestic Courts as Agents of Development of International Law’ (2013) 26(3) Leiden Journal of International Law 531, 534; Richard Falk, The Status of Law in International Society (Princeton University Press, 1970) 433. 66 Akin to a sense of ‘alterity’ cf singularity in the law, as formulated by Pierre Legrand. See Lyombe Eko, American Exceptionalism, the French Exception, and Digital and Media Law (Rowman & Littlefield, ) 14- 15; Pierre Legrand, ‘On the Singularity of Law’ (2006) 47(2) Harvard International Law Journal 517, 527; Pierre Legrand, ‘Comparative Law’ in David Clark (ed), Encyclopedia of Law and Society (SAGE, 2007) 220, 220-3. 67 Salmond (n 31) 30. 68 Salmond (n 31) 185; See also, Richard Sparks, Study Guide to Jurisprudence (Sweet & Maxwell, 1967) 34: ‘the “infallibility” referred to by Salmond’s editor is a consequence of the authoritative status of the tribunal, not a characteristic of the type of reasoning involved’. (2019) 4 Perth International Law Journal 89 Jing Zhi Wong General Assembly resolutions have in norm-making69 and as a proxy of states’ internal motivations. It allowed for an inference (deduction) of the existence of customary international law to be made from opinio juris confirmed bysome state practice and not merely from uniform state practice supported by uniform opinio juris.70 It also allowed for the establishment of customary international law while ‘eschewing examination of primary materials establishing state practice and opinio juris’.71 In this way, new rules — based on some normative functional and analogical precept of what the state of international law should be — could be inferred from axiomatic principles of international law.72
3 Custom as a Tool of Assertion: The World Court’s Concept of Custom The identification of customary international law is further complicated bythe sociological view that customary international law is, ‘in essence … nothing but tacit agreement, as opposed to express agreement, which takes treaty form’.73 Agreement as to the law on a subject matter is found based on an abstraction of the evidence of individual states’ practice and accompanying opinio juris taken together.74 In a positivistic sense, it is judicial recognition from the World Court that makes ‘tacit agreement’ attract the force of a law and accrue the capacity of fulfillment or enforceability in a court of law.75 It may be that the World Court is concluding (under the traditional conception) or making a finding (under the modern conception) that such a rule exists; the better view is that the World Court is deciding that international law shall contain such a rule.76 In relation to the existence of customary international law established by the World Court, its infallibility is not entirely due to it being an accurate description of the state of existing unwritten law amongst nations, but rather, it is due to the authoritative nature of the World Court.77 It is the application of legal reasoning to social facts that makes customary international law. The identification of customary international law from material that evidences states’ internal motivations is not as straightforward. The apparent dichotomy (or trichotomy) in the approaches used to establish customary international law and the dichotomous (or trichotomous) conceptions of customary international law are prime examples of this difficulty.78 To use the language of Sir Henry Maine, it is ‘the unsatisfactory
69 North Sea Continental Shelf Cases (n 92) [72]. 70 Alvarez-Jimenez (n 25) 688. 71 Ibid, referring to Theodore Meron, ‘Revival of Customary Humanitarian Law’ (2005) 99 American Journal of International Law 817, 819. 72 Talmon (n 148) 423. 73 A Berriedale Keith, Wheaton’s Elements of International Law (Stevens & Sons, 6th English Edition, 1929) vol i, 11-2; cf Kelsen (n 57) 229. 74 Kelsen (n 57) 228-9. 75 Hermann Kantorowicz, The Definition of Law (Cambridge University Press, 1958) 79; Kelsen recognizes that judicial decisions and administrative acts can create legal norms: Kelsen (n 57) 227 et seq. 76 Salmond (n 31) 30. 77 Salmond (n 31) 185; See also, Richard Sparks, Study Guide to Jurisprudence (Sweet & Maxwell, 1967) 34: ‘the “infallibility” referred to by Salmond’s editor is a consequence of the authoritative status of the tribunal, not a characteristic of the type of reasoning involved’. 78 See Part II.B.1-2 above. 90 (2019) 4 Perth International Law Journal Comparative Legal Methodology condition [of] the science of [international law] jurisprudence’79 that has caused these complications. Judge Tanaka, perplexed by this complexity, opined in his Dissenting Opinion in the North Sea Continental Shelf Cases:80 [I]t is extremely difficult to get evidence of [the] existence [of opinio juris] in concrete cases. This factor, relating to internal motivation and being of a psychological nature, cannot be ascertained very easily, particularly when diverse legislative and executive organs of a government participate in an internal process of decision-making in respect of ratification or other State acts. There is no other way than to ascertain the existence of opinio juris from the fact of the external existence of a certain custom and its necessity felt in the international community, rather than to seek evidence as to the subjective motives for each example of State practice, which is something which is impossible of achievement.81 As the criterion for the formation of customary international law, Judge Tanaka maintained neither the plurality’s rigid sociological view of uniform state practice and opinio juris nor the strict dichotomy between induction and deduction (whilst arguably supporting the deductive approach). Rather, His Excellency stressed that the approach to establishing customary international law is, in reality, a normative, consequence- based, teleological approach,82 despite it being described at the conceptual level as a mere description of the unwritten law that existed amongst nations. Indeed, as Talmon posited some forty-five years later in an analysis of the World Court’s jurisprudence, the approach of the World Court in the North Sea Continental Shelf Cases and Nicaragua, which were labelled as inductive and deductive respectively,83 is imprecise84 and gives an incomplete or distorted picture.85 The true method behind what can be described as induction or deduction employed by the World Court is rather that of ‘assertion’,86 based on what it perceived as ‘necessity felt in the international community’.87 Indeed, as both Koskenniemi and Ammann succinctly posit: ‘law is not a social science. It is a normative practice’.88 Judges reason through the perceived needs of the case, rather than to attain a uniform standard.89 On this, there is a greater degree of assertion in the deductive approach.
79 Henry Maine, Ancient Law: Its Connection with The Early History of Society and Its Relation to Modern Ideas (John Murray, 1909) 3. 80 North Sea Continental Shelf Cases (Judgment) [1969] ICJ Rep 3, 176 (Dissenting Opinion of Judge Tanaka). 81 Ibid. 82 North Sea Continental Shelf Cases (n 92) 176; This would explain the shift of the World Court’s jurisprudence from an inductive approach in the North Sea Continental Shelf Cases to a deductive approach in Nicaragua. This is wide enough to explain the shift to ‘assertion’. 83 Alvarez-Jimenez (n 25) 686-8. 84 Talmon (n 148) 417. 85 For a more in-depth discussion, see Talmon (n 148) 434 et seq. 86 Talmon (n 148); See also, Kelsen (n 57) 80; cf Letizia Lo Giacco, ‘Swinging Between Finding and Justification: Judicial Citation and International Law-Making’ (2017) 6(1) Cambridge International Law Journal 27, 27. 87 North Sea Continental Shelf Cases (n 92) 176 (Dissenting Opinion of Judge Tanaka). 88 Martti Koskenniemi, ‘Law, Teleology and International Relations: An Essay in Counterdisciplinarity’ (2012) 26 International Relations 3, 19; Odile Ammann, ‘International Law in Domestic Courts Through an Empirical Lens: The Swiss Federal Tribunal’s Practice of International Law in Figures’ (2018) 28 Swiss Review of International and European Law 489, 492. 89 Pierre Legrand, ‘How to Compare Now’ (1996) 16 Legal Studies 232, 234-5, 237-40. (2019) 4 Perth International Law Journal 91 Jing Zhi Wong There can be no doubt that, in realising international law is practically consequence- based and teleological, the World Court’s method of assertion could explain its preference for a relatively more flexible deductive approach in cases decided after the North Sea Continental Shelf Cases.90 In the traditional inductive approach, assertion is applied insofar as it was necessary to declare the existence of extant unwritten international law. The move from this descriptively accurate inductive approach, which places an emphasis on uniform state practice, to a relatively more normative and teleological approach, which places an emphasis on opinio juris, perhaps recognises the evolving and non-static nature of international law.91 In this context, the modern deductive approach uses a higher degree of assertion to bridge gaps. The normative, consequence- based teleological approach of the World Court, therefore, appears apt in filling lacunae in international law,92 particularly when there is a paucity in state practice. The appeal to a method of assertion could also aptly explain the World Court’s trend of resorting to the deductive approach in cases after Nicaragua93 such as the cases concerning the Gulf of Maine,94 Jurisdictional Immunities,95 Black Sea,96 and Arrest Warrant97 — and generally in those like the Reparations case, where the World Court was ‘faced with a new situation’.98 However, the World Court’s appeal for a method of assertion goes much further than to imbue the recognition of customary international law with normative, teleological, or moral content. In this context, customary international law asserted to exist by the World Court does not attract its force because it is a description of the unwritten law of nations:
90 See, eg, as justification for this analysis: Richard Wasserstrom,The Judicial Decision (Stanford University Press, 1961) 21-2. 91 Eg, Okon Udokang, ‘The Role of New States in International Law’ (1971) 15(2) Archiv des Volkerrechts 145, 145; cf Michael Inwood’s commentary on c. lxxvii of Hegel’s Introductory Lectures on Aesthetics: Hegel (n 222) 145-6; cf Paul Kahn, Making the Case: The Art of the Judicial Opinion (Yale University Press, 2016) 84-7. 92 There are two opposing views as regards the World Court filling gaps in international law, though there appears to be more judicial support in the affirmative. Authorities for the World Court filling the gaps in international law include: Desgranges v International Labour Organization (1957) 20 ILR 523, 530: ‘One of the fundamental tenets of all legal systems is that no court may refrain from giving judgment on the grounds that the law is silent or obscure’; Mavrommatis Concessions Case [1924] PCIJ Ser A, No. 2, 16; North Sea Continental Shelf Cases [1969] ICJ Rep 3, [83], [88]-[91]; Authorities against this view include: SS Lotus [1927] PCIJ Ser A, No. 10, 18, 21, 31: what is not prohibited is permitted. See also, Amos Enabulele, ‘The Avoidance of non liquet by the International Court of Justice, the Completeness of the Sources of International Law in Article 38(1) of the Statute of the Court and the rile of Judicial Decisions in Article 38(1) (d)’ (2012) 38(4) Commonwealth Law Bulletin 617, 641; An Hertogen, ‘Letting Lotus Bloom’ (2016) 26(4) European Journal of International Law 901. 93 See generally, Talmon (n 148) 423-7; Though note that the World Court applied the strict inductive approach one again in the 2008 judgment of Pedra Branca/Pulau Batu Puteh; See also, Continental Shelf (Libyan Arab Jamahiriya/Malta) [1985] ICJ Rep 13, 33 [34]. 94 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) [1984] ICJ Rep 246, 300 [114]. In this case, practical methods for the delimitation of maritime boundary was inferred from lex specialis international law rules. 95 Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening) [2012] ICJ Rep 99, 123 [57]: the Court derived ‘the rule of state immunity … from the principle of sovereign equality of states’. 96 Maritime Delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ Rep 62, 96 [99]: new rules were inferred from customary law principles such as the ‘land dominates the sea’. 97 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3, [58] et seq; Talmon (n 148) 425 (n 53). 98 Reparations Case (n 27) 182, 190 (Judge Alvarez); 218 (Dissenting Op of Judge Krylov). 92 (2019) 4 Perth International Law Journal Comparative Legal Methodology there is a paucity of justification from uniform state practice.99 Rather, it acquires its force as law solely from the authority of the World Court.100 In the language of Stefan Talmon, the World Court is allowed to ‘simply assert the law as it sees fit’.101 Two main issues arise with the World Court’s adoption of assertion and deduction as approaches to establishing customary international law.102 First, as a matter of methodology, they are unsatisfactory for determining the rules of customary international law. They allow for inaccurate ‘findings’ of international law where, descriptively speaking, such findings cannot be supported by sufficient existing state practice. In other words, such ‘findings’ are not descriptions that originate in a recognised source of law. Rather, they are new legal fictions, created under the pretext of ‘finding’ existing customary international law. Methodologically, it is unsatisfactory and fallacious to have two supposedly valid but inconsistent concepts of customary international law — one at the traditional but conceptual level, and the other at the modern but practical level, where the latter does not appear to reconcile with the former. Second, as a matter of substance, approaches which utilise a high degree of assertion may potentially delegitimise international law. The appeal to approaches that emphasise the importance of opinio juris over state practice (ie deduction) is problematic. As Professor Roberts posits: [O]pinio juris is inherently ambiguous in nature because statements can represent lex lata (what the law is, a descriptive characteristic) or lex ferenda (what the law is, a normative characteristic). The Court has held that only statements of lex lata can contribute to the formation of custom.103 … Ideally, one should be able to distinguish between lex lata (fit) andlex ferenda (substance).104 The appeal to a normative,105 teleological, consequence-based approach (ie assertion) is equally problematic. As Professor O’Connell posits (in a passage cited by Judge Tanaka in the North Sea Continental Shelf Cases): He [who] looks to positiv[ist] (purely formalistic) practice without possessing the criteria for evaluating it, [is] … powerless to explain the mystical process of lex ferenda, which he is compelled to distinguish sharply, and improperly, from lex lata …106
99 Talmon (n 148) 434. 100 Salmond (n 31) 185; See also, Sparks (n 68) 34. 101 Talmon (n 148) 434. 102 Roberts (n 58) 763; See also, Loretta Chan, ‘The Dominance of the International Court of Justice in the Creation of Customary International Law’ (2016) 6 Southampton Student Law Review 44; Brad Bowden, ‘How to Kick Postmodernism’ (2018) 70(4) IPA Review 16, 20-2. 103 Ibid (footnotes omitted), referring to North Sea Continental Shelf Cases (n 92) 38. 104 Roberts (n 58) 775. 105 Cf concept of ‘qiya’ in domestic Islamic jurisprudence: Joshua Neoh, ‘The Legitimacy of the Common Law in post-Colonial Malaysia’ [2010] LAWASIA Journal 59, 81. 106 North Sea Continental Shelf Cases (n 92) 178-9 (Dissenting Opinion of Judge Tanaka), referring to D P O’Connell, International Law (Stevens & Sons, 1965) vol 1, 20-21. (2019) 4 Perth International Law Journal 93 Jing Zhi Wong These problems, which go to the heart of constructing international law doctrine,107 perpetuates a situation where lex ferenda is cloaked and passed off as lex lata.108 The highly political nature of states’ conduct and internal motivations are, in this sense, obscured by the World Court’s approach,109 favouring an open texture of law informed by what the World Court perceives to be ‘necessity felt in the international community’,110 as well as normatively or teleologically ‘fit’.111 In this context, it can be fairly said that the World Court is opportunistically ‘creating’ laws and rights which, under the traditional inductive approach, were not supported.112 Under these approaches, activist benches can expand international law beyond it being a descriptive ‘law amongst nations’, potentially delegitimising it. As a subsidiary source for ascertaining or identifying the content of law, it is unsatisfactory for the World Court to simply assert the law without first establishing the constitutive elements of it. As Professor Onuf aptly noted:113 The traditional commonsense meaning of custom has increasingly been stretched and distorted, first by the idea of its rapid, almost instantaneous creation and now by the idea of its creation through intentioned behavior.114 These problems reflect a confused understanding of the concept of customary international law and can be illustrated with reference to the World Court’s recent practice of establishing customary international law from General Assembly resolutions, as well as the literature about these practices.
C Problems in Establishing Custom from General Assembly Resolutions In relation to recent developments, there is increasing recognition, by both academics and the World Court, that the adoption of a General Assembly resolution
107 Nicholas Onuf, ‘International Legal Structure. By David Kennedy. Baden-Baden: Nomos Verlagsgesellschaft, 1987. Pp 294. DM 69’ (1989) 83(3) American Journal of International Law 630; cf David Kennedy, ‘Primitive Legal Scholarship’ (1986) 27(1) Harvard International Law Journal 1; cf James Boyle, ‘Ideals and Things: International Legal Scholarship and the Prison-house of Language’ (1985) 26 Harvard International Law Journal 327. 108 Roberts (n 58) 763; some support from a legal philosophy context can be seen in Peter Cane, ‘Consequences in Judicial Reasoning’ in Jeremy Horder (ed), Oxford Essays in Jurisprudence, Fourth Series (Oxford University Press, 2000) 41; cf W Michael Reisman, Jurisprudence: Understanding and Shaping Law (New Haven Press, 1987) 17. 109 Cf Bertrand De Jouvenel, Power: The Natural History of its Growth (Hutchinson & Co, 1947) 109; Tommy Thomas, Abuse of Power: Selected Works on the Law and Constitution (SIRD, 2016) 246-7, 276- 83; It is perhaps the language of global governance that makes obscuring the intensely political nature of international law desirable. 110 North Sea Continental Shelf Cases (n 92) 176 (Dissenting Opinion of Judge Tanaka). 111 Talmon (n 148) 434. 112 Kelsen opines that only the traditional conception of customary international law, ie: the declaratory view, ‘can claim validity because, and so far as, it is the reproduction of pre-existing law’. This conclusion, as Kelsen posits, is consistent with the theory expressed by the German Historical School that law is neither created by legislation nor by custom but only by Popular Spirit (Volkgeist), and French Sociological Theory with the difference that law is created, not by Volkgeist specifically, but solidarite sociale more broadly: Kelsen (n 57) 227; Chan (n 102) 68-70. 113 Onuf (n 125) 48. 114 Ibid; See also, Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford University Press, 2012) 52-5, cf 55. 94 (2019) 4 Perth International Law Journal Comparative Legal Methodology may be evidence of both elements of customary international law:115 state practice116 and opinio juris.117 With this, there may be a tendency to infer or deduce that, because resolutions adopted by international organisations represent ‘rule[s] believed to be
115 Alec Stone Sweet, ‘Judicialization and the Construction of Governance’ (1999) 32(2) Comparative Political Studies 147, 156-7 et seq; Bin Cheng, ‘Custom: The Future of General State Practice in a Divided World’ in Macdonald and Johnston (eds), The Structure and Process of International Law (Martinus Nijhoff, 1983) 513, 520; The World Court has affirmed that UN General Assembly resolutions may be evidence of existing customary international law: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) (‘Armed Activities’) [2005] ICJ Rep 168, 226 [162]: “[the provisions contained within the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations adopted by GA Res 2625 (XXV) are] declaratory of customary international law”; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (‘Nuclear Weapons’) [1996] ICJ Rep 226, 254-5 [70]: “General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris”; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) (Judgment) (‘Nicaragua’) [1986] ICJ Rep 14, 107 [204]: “[the adoption of a resolution of an international organization] testifies to the existence, and acceptance… of a customary principle [of international law] which has universal application”; This is also supported by the decisions of international arbitral panels, eg, Texaco Overseas Petroleum Company and California Asiatic Oil Company v The Government of the Libyan Arab Republic (1978) 53 ILR 389; 17 ILM 1, 27 (arbitral award of Professor Dupuy); cf British Petroleum v Libyan Arab Republic (Award)(Merits) (1973) (Judge Lagergren); See also, Stephen Schwebel, ‘The Effect of Resolutions of the UN General Assembly on Customary International Law’ (1979) 73 Proceedings of the Annual General Meeting (American Society of International Law) 301, 303-5; Rosalyn Higgins, Problems & Process: International Law and How We Use It (Clarendon Press, 1994) 24-28; In relation to treaties and multilateral conventions being declaratory of custom: Eg, Case Concerning the Gabcikovo-Nagymaros Project [1997] ICJ Rep 7, [46]-[47], [101]-[104], [123]; Namibia Advisory Opinion (n 116) 47; crystallizing effect: North Sea Continental Shelf Cases (n 92) 39; norm-generating effect: North Sea Continental Shelf Cases (n 92) 41. 116 Schwebel (n 115) 305, referring to the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion) (‘Namibia Advisory Opinion’) [1971] ICJ Rep 16, 31 and the Western Saharan Advisory Opinion [1975] ICJ Rep 12, 31-3; This is further supported by the 2019 Advisory Opinion of the World Court in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) (‘Chagos Archipelago Advisory Opinion’) [2019] ICJ General List No. 169, [150]-[152], [155], following and applying the dictum in Nuclear Weapons (n 115) 254-5 [70]. 117 Nicaragua (n 114) 99-100 [188], [189], 101 [191], where the Court held that the votes of UN GA resolutions can be evidence of opinio juris, in that ‘opinio juris may … be deduced from, inter alia, the attitude of the parties and the attitude of states towards certain General Assembly resolutions’ (at [188]). The Court noted that, in relation to Art 2(4) of the UN Charter, ‘the effect of consent to the text of such resolutions cannot be understood as merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves.’ (at [188]) Corollary, the ‘adoption by States of this text [of the resolution] affords an indication of their opinio juris as to customary international law on the question’ (at [191]). This was further affirmed in the Nuclear Weapons Advisory Opinion (n 115) 254-5 [70], and in the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] ICJ General List No. 169, [150]-[152]. (2019) 4 Perth International Law Journal 95 Jing Zhi Wong socially necessary or desirable’,118 ‘instant custom’119 may generally arise from them. Caution, however, must be had in determining whether such a resolution does indeed establish the existence of the constitutive elements of extant customary international law. As His Excellency James Crawford noted:120 ‘[I]n each case [of determination] there is a process of articulation, appraisal and assessment’.121 A corollary of this is that not all adoptions of resolutions evidence or constitute the elements of customary international law. What may be determinative in this assessment is, first, the character and meaning of the particular wording used in a given resolution (going to opinio juris)122 and, second, the legal significance of the adoption of the resolution (going both to opinio juris and state practice). As for the first criteria, the International Court of Justice articulated it clearly in the Nuclear Weapons Advisory Opinion,123 holding that ‘it is necessary to look at [the resolution’s] content and the conditions of its adoption; it is necessary to see whether an opinio juris exists as to its normative character’.124 Operationally, this means ‘verifying the presence of two structural characteristics that all general norm-creating resolutions must possess’.125 These are the generality of language and a declaratory format.126 For example, it is essential to examine whether the content is a result of actions done in the
118 Ted L Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’ (1985) 26(2) Harvard International Law Journal 457, 465; See also, Koskenniemi, From Apology to Utopia (n 26) 373. 119 Bin Cheng, who has been cited by the World Court on at least 15 occasions, posit a theory of ‘instant customary law’: Cheng (n 115) 520; Bin Cheng, ‘United Nations Resolutions on Outer Space: ‘instant’ Customary International Law?’ (1965) 5 Indian Journal of International Law 23, 26, 35-9; Benjamin Langille, ‘It’s “Instant Custom”: How the Bush Doctrine Became Law after the Terrorist Attacks of September 11, 2001’ (2003) 26(1) British Columbia International and Comparative Law Review 145. While this theory has, in principle, some support from the jurisprudence of the World Court, eg, Nicaragua (n 115) [184], [188]-[193], [203]-[211], [264], 184 [7] (Judge Ago), it is not without controversy. See H C M Charlesworth, ‘Customary International Law and the Nicaragua Case’ (1984) 11 Australian Yearbook of International Law 1, 11, 21-6; See also, Abi-Saab, Analytical Study on the Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order (1984) UN Doc. A/39/504/Add.1, 36-7. 120 Current Judge of the International Court of Justice. 121 James Crawford, ‘Chance, Order, Change: The Course of International Law’ (2013) 365 Recueil de Cours 90, 112; Nicaragua (n 115) 99-100 [188]: An undertaking that must be “carried out with all due caution”; see also. Martti Koskenniemi, ‘The Normative Force of Habit; International Custom and Social Theory’ (1990) 1 Finnish Yearbook of International Law 77, 149; cf Myres McDougal and W. Michael Reisman, International Law in Contemporary Perspective: The Public Order of the World Community (Foundation Press, 1981) 1193-4; See also, Chan (n 102) 62 et seq. 122 James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2013) 194-5; See also, Richard Falk, ‘On the Quasi-Legislative Competence of the General Assembly’ (1966) 60 American Journal of International Law 782, 785-6. 123 Nuclear Weapons (n 115) 254-5 [70]. 124 Nuclear Weapons (n 115) 254-5 [70]; This criteria is perhaps in recognition of the teleological and normative nature of customary international law. 125 Nicholas Onuf, International Legal Theory: Essays and Engagements 1966-2006 (Routledge-Cavendish, 2008) 44. 126 Ibid. 96 (2019) 4 Perth International Law Journal Comparative Legal Methodology belief that that was the expression of law, or if it was done under duress.127 As the World Court observed in North Sea Continental Shelf Cases: ‘There are many international acts, eg, in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty’. But even this examination alone is not adequate. As Professor Roberts noted: it is difficult to distinguish between an accurate description of existing customary international law and progressive development by simply examining the language of declarations and resolutions.128 As for the second criteria, Sir Michael Wood, in his Third Report on Identification of Customary International Law as Special Rapporteur for that topic, opined that circumstances surrounding the adoption of the resolution in question are relevant.129 As for opinio juris, these circumstances — including the method in which the resolution was adopted (by vote or by consensus), voting figures, and reasons furnished by states for their position — goes to the degree of support,130 as well as the enquiry of whether there is sufficient support, for the purposes of meeting the thresholds for the positive identification of customary international law.131 Even where the normative character has been ascertained, careful consideration must still be had as to whether the resolution can be used as a proxy for inferring the existence of underlying state practice and opinio juris.132 As for state practice in decolonisation, where there was sufficient other support in states’ actual conduct,133 General Assembly resolutions ‘represent[ed] a defining moment in the consolidation of State practice on decolonisation’.134 This was enunciated in the Chagos Archipelago Advisory Opinion on GA Res 1514 (XV). Implicit in this was the recognition that, where there is actual practice of states, General Assembly
127 Koskenniemi, From Apology to Utopia (n 26) 371 (n 117); In Dispute Between the Government of Kuwait and the American Independent Oil Co. (1982) 21 ILM 976 (Award), the ad-hoc tribunal noted that several agreements cited by Kuwait in support of their case of an existence of customary lex petrolea did not express any opinio juris, because they were the result of bargaining and not ‘inspired by legal motivations’: Colombian-Peru Asylum Case (Judgment) [1950] ICJ Rep 266, 277, 286; Contra ‘rule of force’ in Keeton (n 180) 45-6. 128 Roberts (n 58) 763. 129 Michael Wood, Third Report on the Identification of Customary International Law (2015) UN Doc. A/ CN.4/682, 31-40. 130 Ibid, [49]; See also Nuclear Weapons (n 115) 255 [71]. 131 North Sea Continental Shelf Cases (n 92); Nicaragua (n 115); See above Part II.A. These thresholds are categorical – ‘strict inductive’ and ‘flexible deductive’, in the sense that no set cut-off number has been posited. Guidance may be sourced in the writings of eminent publicists. Falk posits that the resolutions must be ‘adopted overwhelmingly, or at least by a two-thirds majority of all major powers and groups represented. This need not be the systematic and enduring practice required for the formation of customary law. Rather, the combination of frequent, favorable citation in forums such as the General Assembly and infrequent contrary practice would probably suffice’: Onuf (n 125) 44, referring to Richard Falk, ‘On the Quasi-Legislative Competence of the General Assembly’ (n 122) 787-90, 784-5; cf Anthony D’Amato, ‘On Consensus’ (1970) 8 Canadian Yearbook of International Law 104; On a related note, the World Court in the Reparations case (n 27) 185, that the consent of fifty out of fifty-eight states could make international legal rules affecting all states: ‘the Court’s opinion is that fifty States, representing the vast majority of the members ofthe international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claim’. 132 See, eg, in relation to cultural or customary practices in general as ‘law’, Michael Karayanni, ‘Adjudicating Culture’ (2009) 47(2) Osgoode Hall Law Journal 371, 384. 133 Chagos Archipelago Advisory Opinion (n 116) [150]. 134 Ibid. (2019) 4 Perth International Law Journal 97 Jing Zhi Wong resolutions (and all those of a plenary body) are ‘representative’ or ‘proxies’ of state practice. As Judge Schwebel opined some forty years earlier on decolonisation and the same GA resolution, albeit extra-curially:135 General Assembly’s declaration may, depending on its terms and content, be taken as a valid element and articulation of state practice provided that it finds sufficient other support in the actual conduct of states. This interpretation appears to be consistent with the advisory opinions of the International Court of Justice which afford weight in the development of international law to General Assembly declarations respecting non-self-governing territories (GA Res 1514 (XV) and 2625 (XXV)). As a corollary of this, the assessment can be reduced to a two-fold enquiry. First, whether the resolution is of a normative character: whether it illuminates the intent of Member States as to the legal significance or binding-ness of a resolution,136 or of its recommendatory nature.137 Second, the degree of actual support from states, in outward and internal manifestations of consciousness, for the norms contained within the resolutions.138 This additional step in the analysis is crucial, especially when these resolutions are proxies of evidence for state practice and accompanying opinio necessitatis. GA resolutions reduce individual states’ manifestations of agreement and disagreement to a number, which may be obscuring the analysis. Relying on sources that originate from the proceedings of global institutions and plenary bodies may, no doubt, have its benefits: it accelerates the formation of customary international law and, as a result of global participation in norm-making, takes into account the views of an increasing number of countries.139 However, as noted in Part B above, deference to these resolutions for evidence of state practice and opinio juris obscures the true state of international law and may delegitimise it. Deferring the quest of identifying customary international law solely to the authority of UN General Assembly resolutions is akin to deferring solely to the authority of an adjudicatory body in finding customary international law. At extremes, it allows the creation of law out of thin air. This does not, as a matter of fact, fulfil the conceptual understanding of customary international law. To preserve this understanding, a traditional inductive approach — a scientific, sociological, and descriptive approach — informed by comparative legal methodology is required.
III COMPARATIVE LEGAL METHODOLOGY A The Need for an Inductive Approach and Comparative Methodology As apparent from the preceding parts, there is confusion as to how customary
135 Schwebel (n 115) 305 (emphasis in italics added). 136 Crawford, Brownlie’s Principles of Public International Law (n 122) 194-5. 137 Higgins (n 115) 28; Focarelli (n 114) 55. 138 Michael Wood, Third Report on the Identification of Customary International Law (2015) UN Doc. A/ CN.4/682, [49]; cf Rossana Deplano, ‘Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law’ (2017) 14 International Organizations Law Review 227; Sufyan Droubi, ‘Institutionalisation of Emerging Norms of Customary International Law Through Resolutions and Operational Activities of the Political and Subsidiary Organs of the United Nations’ (2017) 14(2) International Organizations Law Review 254. 139 Roberts (n 58) 768. 98 (2019) 4 Perth International Law Journal Comparative Legal Methodology international law is formed and how, as a matter of practice, the concept of customary international law can be fulfilled. As is apparent from the preceding section (Part II.C), the literature, critically reflecting on the identification of customary international law from UN General Assembly resolutions, seems to suggest that a method of deduction or assertion is not satisfactory in justifying the finding of customary international law. As a corollary, there is the need for a shift towards a relatively more sociological, descriptive method in the construction of doctrine in international law. This is especially important in a time of globalisation, where the creation, practice, and development of international law occurs primarily under the auspices of global and multilateral institutions. Their championing peace, cooperation, and harmony may obscure the reality of international law as being highly contested and unsettled. According to Professor Koskenniemi,140 to develop greater understanding of the actual sources and ‘contested nature’ of international law,141 the literature must, ‘instead of becoming … more technical vocabulary of global governance amongst others, … become a platform on which … existing global decision-making [is made transparent] and … accountability of the professional classes to the communities affected by their (contentious) choices [is enhanced]’.142 In other words, when the emphasis is clearly put on the legal and political sources of an asserted state of international law, rather than the illusory authority of some apparently transcendent will,143 the legitimacy of that state of international law can be apparent from the experimental action of states and their consciousness.144 In this context, ‘[n]omos and exousia, [customary international] law and power [clearly] expose each other’.145 The state and condition of existing international law, thence, can be more accurately (and immanently) articulated. An appeal to the sociological and descriptive method would enable analyses of international law to be terser, pithier, and, most importantly, accurate. It allows for a closer examination of the nature of the relationship among sources of international law. As Professor Schwarzeberger notes: An international lawyer who applies the inductive (sociological, descriptive and enquiry-based) method in full awareness of the hierarchies of sources, law- determining agencies, and elements of such agencies will always have at his disposal reliable measuring rods for determining the significance of instances taken from state practice, of individual decisions of international and national
140 Professor Koskenniemi finalized the 2006 UN International Law Commission’s report on theFragmentation of International Law (2006) UN Doc. A/CN.4/L.702. 141 Koskenniemi, ‘What Use for Sovereignty Today?’ (n 5) 68. 142 Ibid; see also, Boyle (n 107) 330 et seq. 143 Carlo Grassi, ‘Jean-Luc Nancy or Justice as Ontology of the ‘With’’ in Jean-Luc Nancy, Dies Irae, ed Angela Condello, Carlo Grassi and Andreas Philippopoulos-Mihalopoulos, tr Cadenza Academic Translations and Angela Condello (University of Westminster Press, 2019) 1, 9; cf ‘structural bias’, Martti Koskenniemi, ‘Imagining the Rule of Law: Rereading the Grotian ‘Tradition’’ (2019) 30(1) European Journal of International Law 17, 18, 27. 144 Ibid. 145 Ibid; cf Kirsten Schmalenbach, ‘A Game of Powers’ (2017) 14(2) International Organizations Law Review 221; George Sheets, ‘Conceptualizing International Law in Thucydides’ (1994) 115(1) American Journal of Philology 51, 58. (2019) 4 Perth International Law Journal 99 Jing Zhi Wong courts, and of the writings of the most highly qualified publicists.146 Quite apparent from this excerpt is that appraisals of a comparative nature are intrinsic to an international lawyer’s task, who must appraise and analyse the hierarchies of the sources of international law. Comparative methodology, in this context, may be useful to an international lawyer by providing him or her with the tools or ‘measuring rods’ for ‘estimating, criticising, [critiquing], … classifying’147 and appraising the sources of state practice and opinio juris between different states.148 Comparative legal methodology would allow for a more descriptively accurate identification of customary international law as the law amongst nations.149 In the view of Professor Sarfatti: [T]he science of comparative law … [allows one] to penetrate the historical origin of the [sources of law] under examination, … to study its evolution and to draw from it the fundamental principles, always keeping in view the reciprocal analogies and differences.150 In the context of analyses of international law, comparative law methodology allows one to appreciate the differences and nuances in its sources and, consequently, analyses. To do so, however, ‘it is necessary to know the juridical atmosphere in which to consider the state of the law at a given moment on a special problem’.151 In a similar vein, Professor Samuel posits that it is necessary for an author to be aware of not just his or her orientation (subject matter) but equally of his or her theoretical and methodological frameworks.152 Thus, an international lawyer undertaking comparative appraisals of state practice and opinio juris across jurisdictions must thus have ‘a profound knowledge of the literature on general theory of comparative law so as to be able to inform the readers of his or her final thesis on what methodology, orientation,
146 Georg Schwarzenberger, ‘The Inductive Approach to International Law’ (1947) 60 Harvard Law Review 539, 568; Gourgourisnis (n 40) 1003; Chong (n 195) 11; cf, in a functional context, Professor Ehrlich’s position that ‘[i]n order to understand the actual state of the law we must institute an investigation as to the contribution that is being made by [international] society itself as well by [existing international law], and also as to the actual influence of [existing international law] upon social law’: Ehrlich (n 32) 504-5. 147 Mario Sarfatti, ‘Comparative Law and Its Relation to International Law’ (1936) 22 Transactions of the Grotius Society 83, 90; See also, Mario Prost, ‘Sources and the Hierarchy of International Law: Source Preferences and Scales of Values’ in Samantha Besson and Jean d’Aspremont, The Oxford Handbook of the Sources of International Law (Oxford University Press, 2017) 640, 655-8; Harlan Grant Cohen, ‘Finding International Law: Rethinking the Doctrine of Sources’ (2007) 93 Iowa Law Review 65. 148 Sarfatti (n 147) 90-1; See also, Stefan Talmon, ‘Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion’ (2015) 26(2) European Journal of International Law 417, 417; cf Kirchner, ‘Thoughts about a Methodology of Customary International Law’ (1992) 43 Austrian Journal of Public and International Law 215, 215; cf Adolf Schule, ‘Methoden der Volkerrechtswissenschaft’ (1959) 3 Berichte der Deutschen Gesellschaft fur Volkerrecht 1, 1. 149 This is perhaps what Professor Samuels was alluding to when he posited that ‘to teach the methodology of international law is not to teach international law itself’: Samuel, An Introduction to Comparative Law Theory and Method (n 11) 2; See also David Kennedy, ‘A New Stream of International Law Scholarship’ (1988) 7 Wisconsin International Law Journal 1, 10 et seq; As Professor Ehrlich aptly observes, ‘… of course our knowledge in this sphere will always remain full of gaps, and unsatisfactory, and doubtless it is much easier and much more pleasant to study a few codes together with illustrative material and explanatory notes than to ascertain the actual state of the law. But it certainly is not the function of science to seek easy and pleasant tasks but great and productive ones. We know in part, and the science of law is no exception to this; the more truly scientific it will become, the more perfect it will be.’: Ehrlich (n 32) 505. 150 Sarfatti (n 147) 95. 151 Ibid. 152 Samuel (n 11) 27. 100 (2019) 4 Perth International Law Journal Comparative Legal Methodology and epistemological foundation he or she has adopted’.153 Failure to appreciate the importance of analytical skills, in Professor Samuel’s opinion, ‘often result[s] in just another descriptive and intellectually uninformative piece of work’;154 it can ‘be fatal to a serious research project [and] result in work that is pretentious and ridiculous and (or) full of errors’.155 It follows that there is a need for a methodological approach.156
B The Need for Methodology: Comparative Methodology as Social Science Methodology In a domestic system, methodology is dictated by an epistemological approach premised upon ‘authority’157 (eg formalism and positivism).158 In line with the doctrine of stare decisis, it is often satisfactory to state the law as municipal courts state it. In the international legal sphere, such approaches are not satisfactory.159 What there needs to be is an epistemological approach (methodology) premised upon ‘enquiry’, or social science, and a method based on this epistemological approach. In Professor Samuel’s view, ‘the comparative lawyer cannot do without knowledge of social science methodology … there is no science without method[ology], for every scientist needs to be able to distinguish analysis from synthesis’.160 Once an understanding of this methodology is achieved, one can decide on a method of analysis. As Professor Samuel posits: ‘What links [analysis and synthesis] is the scheme of intelligibility (methods of comparative analysis) whose purpose is to relate the experience of the real world to an abstract scheme of elements and relations’.161 In Professor Samuel’s view, there would be no axioms or scientific laws, and no substantive knowledge, without this two-way process.162 The scheme (or method of comparative analysis) employed, in turn, gives meaning to the facts.163 Professor Samuel’s methodology is, however, not immune from criticism. Applying social science methodology to analyses of the sources of law, which has its roots in domestic legal systems, appears to attract the ‘amateurism’ that Professor Riles observes.164 Professor Riles posits that comparative legal methodology is
153 Ibid 43-4. 154 Ibid 44; Clarity and adequacy of analysis and reasoning, are central to the judicial functions of many democracies around the world. Clear and well-crafted writing can be of great assistance. See, eg, Thorne v Kennedy [2017] HCA 49, [61]; Wainohu v New South Wales (2011) 243 CLR 181, [54] (French CJ & Kiefel J); see also, Re Lord Goldsmith Peter Henry PC QC [2013] SGHC 181; Practice Note [1983] 1 WLR 1055; Practice Note [1991] 3 All ER 609. 155 Samuel (n 11) 35; 156 Samuel (n 11) 22-3; See also, Geoffrey Samuel, ‘Can Social Science Theory Aid the Comparative Lawyer in Understanding Legal Knowledge? (2019) 14(2) Journal of Comparative Law 311. 157 Samuel, ‘Taking Methods Seriously (Part One)’ (n 12) 94, 98-9. 158 Annelise Riles, ‘Encountering Amateurism: John Henry Wigmore and the Uses of American Formalism’ in Annelise Riles (ed), Rethinking The Masters of Comparative Law (Hart Publishing, 2001) 94, 125-6. 159 For justification, see Part II. 160 Ibid 98-9. 161 Samuel (n 11) 21. 162 Samuel, ‘Taking Methods Seriously (Part One)’ (n 12) 99. 163 Samuel (n 11) 21. 164 I owe this thought to Matthew Thompson. (2019) 4 Perth International Law Journal 101 Jing Zhi Wong amateurish for its failure to analyse scientifically.165 Indeed, law is a sociological, man-made construct166 that aligns itself along society’s perceived needs,167 not logic or natural science.168 Law is often taken for an axiom and has the propensity to be circular and fallacious.169 However, the pitfalls of comparative law methodology that Professor Riles posits should not arise when it is applied in analyses of international law. Comparative legal methodology, as a theory of method of appraising the sources of law and their content, assists in making this analysis clearer.170 This is because, by applying comparative legal methodology, the analysis is not strictly confined to formalist epistemological approaches premised upon ‘authority’.171 Greater tolerance is allowed for scientific and enquiry-based approaches.172 By adopting comparative legal methodology in their international law analysis, an international lawyer is able to analyse173 and, with that, operate in three different dimensions. Firstly, they are able to operate within the ‘authority’ dimension of analysis and appreciate the ‘internal’ view of the sources of international law (ie domestic legal systems).174 Secondly, they are able to operate in another legal system and appreciate their ‘internal’ view as an outsider or foreigner.175 Thirdly, they will be able to function outside the ‘authority’ tradition, making use of the full range of reasoning methods, schemes of intelligibility, paradigms, and epistemological approaches employed across the social sciences.176
165 Riles (n 158) 125-6. 166 Pierre Legrand, ‘Negative Comparative Law’ (2015) 10(2) Journal of Comparative Law 405, 406. 167 Esin Orucu,’Developing Comparative Law’ in Esin Orucu and David Nelken (eds), Comparative Law: A Handbook (Hart Publishing, 2007) 43, 58; See also, Eugen Ehrlich, Fundamental Principles of the Sociology of Law, tr Walter Moll (Harvard University Press, 1939) xv; cf Martti Koskenniemi, ‘Law of Nations and the “Conflict of The Faculties”’ (2018) 8 History of the Present 4. 168 Samuel, ‘Taking Methods Seriously (Part One)’ (n 12) 99-100; Samuel (n 11) 21; Referring to Riles, Professor Samuel acknowledges that his ‘method’ is open to the criticism that ‘formalism that defines all legal knowledge … looks amateuristic within the context of comparative law’. Indeed, Professor Samuel accepts that the formalistic idea of ‘comparative-law-as-method’ is untenable. The dichotomy between scientific enquiry and method is ‘epistemologically dangerous’. However, Professor Riles’ view, if and when it is directed to Professor Samuel’s ‘method’, is misconceived. This is because Professor Samuel’s ‘method’ is to be understood in a more profound sense as being of a methodology – epistemology of methods that champions the formulation of problem-specific intermediary jurisprudence – rather than a fixed method that could attract that ‘amateurism’. In any case, Professor Samuel’s methodology is consistent with Professor Kelsen’s notion of law as a normative science: Kelsen (n 57) 75-81. 169 Samuel, ‘Taking Methods Seriously (Part One)’ (n 12) 118. Eg: in a domestic system laws are premised on authority, yet ‘their authority is rooted in the evidence arising out of the methods of enquiry’. 170 Cf Georg Schwarzenberger, ‘On Teaching International Law’ (1951) 4 International & Comparative Law Quarterly 299, 304-5: Sociology of International Law; see also, Philip Allott, ‘Language, Method and the Nature of International Law’ (1971) XLV British Yearbook of International Law 79; See footnote 149 above, where Professor Ehrlich posits, ‘the more truly scientific [the analyses] will become, the more perfect it will be’. 171 Samuel, ‘Taking Methods Seriously (Part Two)’ (n 12) 236. 172 Samuel, ‘Taking Methods Seriously (Part One)’ (n 12) 94, 98-9. 173 Riles (n 158) 125-6. 174 Samuel, ‘Taking Methods Seriously (Part Two)’ (n 12) 236; See also, HLA Hart, The Concept of Law (Clarendon Press, 2nd ed, 1994); Brian Bix, Jurisprudence: Theory and Context (Sweet & Maxwell, 7th ed, 2015) 41-5. 175 Samuel, ‘Taking Methods Seriously (Part Two)’ (n 12) 236. 176 Ibid. 102 (2019) 4 Perth International Law Journal Comparative Legal Methodology Applying comparative legal methods and methodology to international law177 allows an international lawyer to operate outside the authority paradigm (ie, operate in the enquiry paradigm), and the comparison aspect of his task escapes amateurism.178 Importantly, this approach places emphasis on examining the sources of law, and it is consistent with the (preferred) inductive approach to international law. Professor Samuel’s sociological-jurisprudential approach, when applied to international law, resonates with Judge Tanaka’s plea in the North Sea Continental Shelf Cases. His Excellency emphasised that the appraisal of factors and sources evidencing or declaring custom must be ‘relative to the circumstances’ and preferably of a sociological approach.179
C Employing Professor Samuel’s Comparative Legal Methodology 1 Navigating Professor Samuel’s Methodology Recognition of a standard or true method of comparative legal analysis has always been a bone of contention. Several eminent jurists champion a formal technique or method of comparative analysis as the technique or method to comparative legal analysis. These include functionalism (the functional method),180 neo-functionalism,181 legal culture,182 legal diffusion,183 structuralism (the structural method),184 the hermeneutical
177 For a formal treatment of the distinction between method and methodology, see Reza Banakar and Max Travers, ‘Method versus Methodology’ in Reza Banakar and Max Travers (eds), Theory and Method in Socio- Legal Research (Hart, 2005) 27-31. 178 Samuel, ‘Taking Methods Seriously (Part Two)’ (n 12) 236. 179 North Sea Continental Shelf Cases (n 92) 176 (Dissenting Opinion of Judge Tanaka). 180 Eg, Konrad Zweigert and Hein Kotz, An Introduction to Comparative Law (Oxford University Press, 3rd ed, 1998); Gunter Frankenberg, ‘Critical Comparisons: Re-thinking Comparative Law’ (1985) 26 Harvard Journal of International Law 411, 436; See Samuel (n 11) ch 4; Van Hoecke (n 200); In relation to international law, see eg, discussion in George W Keeton, ‘International Law and the Future (A Plea for a Functional Approach)’ (1941) 27 Transactions of the Grotius Society 31, 44-58; Nicholas Onuf, ‘Do Rules Say What They Do – from Ordinary Language to International Law’ (1985) 26 Harvard International Law Journal 385, 410. 181 Also known as contextualism. It is claimed that neo-functionalism is a contextual understanding of functionalism and has its roots in literature about the regional integration of laws. Van Hoecke calls this the ‘law-in-context method’ or ‘historical’ method. See Van Hoecke (n 200); See also, Ernest Haas, ‘Regional Integration: The Joys and Anguish of Pre-Theorising’ (1970) 24 International Organizations 691; Ernest Haas, ‘Turbulent Fields and the Theory of Regional Integration’ (1976) 30 International Organizations 173; Christopher Whytock, ‘Legal Origins, Functionalism, and the Future of Comparative Law’ [2009] (6) Brigham Young University Law Review 1879; For criticisms of functionalism, see Joseph Frankel, Contemporary International Theory (Oxford University Press, 1973) 48-61; Milja Kurki, Causation in International Relations: Reclaiming Causal Analysis (Cambridge University Press, 2008) 30-9; Jaakko Husa, ‘Farewell to Functionalism or Methodological Tolerance?’ (2009) 67(3) Rabels Zeitschrift fuer auslaendisches und internationales Privatrecht 419; Oliver Brand, ‘Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies’ (2007) 32 Brooks Journal of International Law 405; Keeton (n 180). 182 Eg, David Nelken, ‘Using the Concept of Legal Culture’ (2004) 29 Australian Journal of Legal Philosophy 1; See also, Mario Sarfatti, ‘Comparative Law and Its Relation to International Law’ (1936) 22 Transactions of the Grotius Society 83, 86 [3]. 183 Eg, William Twining, ‘Diffusion of Law: A Global Perspective’ (2006) 1(2) Journal of Comparative Law 237 184 Eg, Samuel (n 11) 81, ch 6; Van Hoecke (n 200); On Historical methods, see, eg, Ehrlich (n 32) 472 et seq; Martti Koskenniemi, ‘What is Critical Research in International Law? Celebrating Structuralism’ (2016) 29(3) Leiden Journal of International Law 727. (2019) 4 Perth International Law Journal 103 Jing Zhi Wong method,185 legal transplants,186 and abstract relativism.187 Professor Samuel’s ‘method’ to doing comparative law is, however, not strictly a formal technique or method of comparative legal analysis, but it is a theory about comparative legal analysis. In this context, Professor Samuel refers to ‘method(s)’ in a more profound sense.188 In Professor Samuel’s view, the ‘method’ to doing comparative analysis is a method of research.189 As Professor Samuel posits, comparative law method, as a research method, should be viewed as an epistemology:190 a methodology (or scientific study) of the different methods of comparative analysis. It describes ‘route[s] to follow’, or ‘methodological roadmap[s]’, to navigate the differentmethods of comparative analysis in order to achieve a result for a particular research goal.191 As Professor Samuel posits: ‘[J]ust as one uses different maps in different situations, … the comparatist should employ different methodologies to reveal different kinds of knowledge’.192 As a corollary of this, by selecting, combining, and applying different formal techniques or methods of comparative analysis193 to a comparative appraisal in order
185 Eg, Pierre Legrand, Le Droit Compare (Presses Universitaires de France, 3rd ed, 2009) 50-73; Samuel (n 11) ch 6. 186 Eg, Alan Watson, ‘Comparative Law and Legal Change’ (1978) 37(2) Cambridge Law Journal 313; Esin Orucu, ‘Law as Transposition’ (2002) 51 International and Comparative Law Quarterly 205. 187 A concept fabricated to allow comparison. It is a conceptual or structural framework or prototype created, through which qualitative and normative analyses can be brought. Abstract relativism may employ the use of a tertium comparationis: TP van Reenen, ‘Major Theoretical Problems of Modern Comparative Methodology (1): The Nature and Role of the tertium comparationis’ (1995) 28 Comparative International Law Journal of South Africa 175, 198-9; TP van Reenen , ‘Major theoretical problems of modern comparative legal methodology (2); the comparability of positive legal phenomena’ (1995) 28(3) Comparative International Law Journal of South Africa 407, 408, 420-1; John Reitz, ‘How to Do Comparative Law’ (1998) 46(4) American Journal of Comparative Law 617, 623; Brand (n 181); See also, Eibe Riedel, ‘Standards and Sources: Farewell to the Exclusivity of the Sources Triad in International Law?’ (1991) 2 European Journal of International Law 58, 77-8. Riedel posits that the Topics school of thought allows ‘mediation between fixed [conceptual] definitions and real-life facts by means of standards, themselves rooted in normal prototype conduct. Topics shares this method of comparison with general hermeneutics as a precondition for the legal process of subsuming norms and facts. Standards may thus serve as a tertium comparationis’; Abstract relativism may also be thought of as a ‘second-order language’ of pluralist understanding that describes the concepts that constitute the different legal systems compared. See Van Hoecke (n 200) 27-8; Qualitative standards such as ‘coherence’ and ‘consistency’ may be used to compare the effectiveness of laws between two jurisdictions: Andrew Fell, ‘The Concept of Coherence in Private Law’ (2018) 41(3) Melbourne University Law Review 1. 188 Samuel (n 11) 20; Corollary, Professor Samuel’s method does not attract the amateurism Professor Riles posits. 189 Ibid i; See also, Charles J Ten Brink, ‘A Jurisprudential Approach to Teaching Legal Research’ (2004- 2005) 39 New England Law Review 307, 309-11; P Ziegler, ‘A General Theory of Law As a Paradigm for Legal Research’ (1988) 51 Modern Law Review 569; Terry Hutchinson, ‘Taking Up the Discourse: Theory or Praxis’ (1995) 11 Queensland University of Technology Law Journal 33, 38 et seq. 190 Geoffrey Samuel, ‘Comparative Law and Jurisprudence’ (1998) 47(4)International and Comparative Law Quarterly 817, 827. 191 Samuel (n 11) i, v, 173-9. 192 Samuel, ‘Taking Methods Seriously (Part Two)’ (n 12) 236. 193 See footnotes 180 to 187 above. 104 (2019) 4 Perth International Law Journal Comparative Legal Methodology to achieve a set research goal,194 Professor Samuel’s ‘method’ of doing comparative analysis is a ‘method’ of developing one’s own intermediary jurisprudence.195 Taking methods seriously is, therefore, paramount. However, it is not the method of comparative analysis per se that the focus should be on. Rather, to make good choices about the method or combination of methods they will employ to get to their goal, the international lawyer undertaking comparative appraisals must understand what his or her needs and wants are. Put in layman terms, the comparatist must know how to utilise the methods of comparative analysis well. That is because, without knowing how to use and adapt methods of comparative analysis for the comparatists’ purposes, the comparatist risks creating work that ‘is pretentious and ridiculous and (or) full of errors’196 or, in Professor Craven’s view, ‘confused and resistant to simple exposition’.197 Consistent with Orucu,198 Glanert,199 and Van Hoecke,200 Professor Samuel does not disclaim the proposition that the comparative method is not one single method of comparative analysis; rather, he claims that it is methods of comparative analysis,201 or a combination of those methods.202 In fact, he posits that there is ‘no singular way of modelling society’ and the rules, standards, principles, and habits that society lives by.203 There is, instead, interdisciplinarity.204 Quoting Legrand,205 Professor Samuel insists that ‘law does not exist in a vacuum’.206 ‘It is a social phenomenon … because it operates within society’.207 He argues that there are different reasoning methods,208 schemes of intelligibility or grilles de lectures (Professor Samuel uses this term to refer to ‘methods of comparative analysis’), and paradigm orientations (different and particular tracts of views, as well as levels of observation) that can be used to model society.209 As Professor Samuel aptly observes: ‘[I]t is the choice of a combination [of methods, schemes and paradigms] which constitute a school [of thought] in any given discipline or between disciplines’.210 Implicit in Professor Samuel’s ‘method’ to doing comparative law is
194 For an example of the application of an intermediary jurisprudence, see Wygene Chong, ‘Harmonisation in Comparative Law: Lessons in Diplomatic Immunities’ (2017) 2 Perth International Law Journal 1, 3; See also, Julian Wyatt, Intertemporal Linguistics in International Law (Hart, 2019); For well-articulated methodology, see eg, Joshua Neoh, ‘Jurisprudence of Love in Paul’s Letter to the Romans’ (2016) 34(1) Law in Context: Law and Love 7, 10-11. 195 A fiction, concept or ‘epistemological attitude’ providing a knowledge framework for rethinking a topic. See, eg, James Penner, ‘Rethinking Legal Reasoning. By Geoffrey Samuel. [Cheltenham: Edward Elgar, 2018. 466 pp. Hardback £95. ISBN 978-17-84712-60-0.]’ (2019) 78(2) Cambridge Law Journal 450, 450. 196 Samuel (n 11) 35. 197 Craven (n 2) 143. 198 See Peter de Cruz, Comparative Law in a Changing World (Routledge-Cavendish, 3rd ed, 2007) 241; Orucu, ‘Methodology of Comparative Law’ (n 211). 199 Sliding Scale of methods; Simone Glanert, ‘Method?’ in Giuseppe Monateri (ed), Methods of Comparative Law (Edward Elgar Publishing, 2012) 61. 200 Toolbox of methods; Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) 12 Law and Method 1; Samuel (n 11) 19. 201 Samuel (n 11) 2. 202 Ibid. 203 Samuel, ‘Taking Methods Seriously (Part One)’ (n 12) 99. 204 Samuel (n 11) 23-4. 205 Pierre Legrand, ‘How to Compare Now’ (1996) 16 Legal Studies 232, 238. 206 Samuel (n 11) 23. 207 Ibid. 208 Not to be confused with ‘methods of comparative analysis’. 209 Samuel, ‘Taking Methods Seriously (Part One)’ (n 12) 99; Samuel (n 11) 7, 153; 210 Samuel, ‘Taking Methods Seriously (Part One)’ (n 12) 99. (2019) 4 Perth International Law Journal 105 Jing Zhi Wong the recognition that there can be multivalent truths, levels of abstraction, classification, languages of comparison and measurement, problems of translation, and cross-cultural terminology.211 Like Glanert’s and Van Hoecke’s method, Professor Samuel’s method to doing comparative analyses has the potential to mitigate criticisms of methods of comparative analyses, such as ethnocentric assumptions or predispositions.212
2 Taking Methods Seriously in International Law In Professor Samuel’s view, the correct comparative law method is a method of research: a methodology of methods. For Professor Samuel, methodology refers to ‘roadmaps’ for navigating and choosing between the different reasoning methods, schemes (methods of comparative analysis), and paradigms that are reasonably appropriate and adapted to serve as an intermediary jurisprudence for a particular comparative research task. As Professor Samuel appositely asserts, the focus is on the process of utilising the well-established213 methods of comparative analysis to develop an intermediary jurisprudence adequately appropriate for a research task. This is a very important process. In relation to its application to international law, comparative methodology stimulates thought about how analyses in international law should be approached. Method and methodology must be distinguished from the substance of a discipline.214 As Professor Samuel posits: ‘[T]o teach the methodology of international law is not to teach [the content of] international law itself’.215 It is to teach the skills that inform the construction of international law doctrine. It does not come as a surprise that the title of Professor Samuel’s papers on comparative law methodology, ‘Taking Methods Seriously’, is reminiscent of the title of the late Professor Ronald Dworkin’s book, Taking Rights Seriously.216 Professor Dworkin’s ‘rights thesis’ was not on the substance or specifics of rights, but it wasabout the framework of rights and rights in society more generally. To understand Professor Dworkin’s substantive thesis, that ‘rights are more
211 Eg, Esin Orucu, ‘Methodology of Comparative Law’ in Jan Smits (ed), Elgar Encyclopedia of Comparative Law (Edward Elgar Publishing, 2006) 442, 447-51. 212 Ethnocentrism is a common problem in anthropology - ‘the researcher uses his or her own bias while problematizing, concluding, reasoning or systemizing the study of another culture’; see Vernon Palmer, ‘From Lerotholi to Lando: Some Examples of Comparative Law Methodology’ (2004) 4(2) Global Jurist Frontiers 1, 9 (n 24); Samuel (n 11) 6. 213 Professor Samuel gives a summary of these in his book and in ‘Taking Methods Seriously (Part Two)’. See Samuel (n 11) ch 4-7; Samuel, ‘Taking Methods Seriously (Part Two)’ (n 11); See also Van Hoecke (n 200), who summarizes some important comparative methods of comparative analysis. 214 Samuel (n 11) 2. 215 Ibid; See also, Bin Cheng, ‘Custom: The Future of General State Practice in a Divided World’ in R St J Macdonald and Douglas Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (Martinus Nijhoff, 1983) 513, 513-50. 216 Professor Samuel engaged extensively with Professor Dworkin’s work in his book Epistemology and Method in Law (Ashgate, 2003), criticizing Professor Dworkin for claiming epistemological exclusivity for his hermeneutical account of law and ignoring that law should be understood as a function of society, and that it is necessary to look outside of comparative law literature and to look at social science. See also, Maksymilian Leskiewicz, ‘Epistemology and Method in Law, Geoffrey Samuel’ (2005) 24(1) University of Queensland Law Journal 225; Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977); Samuel (n 11) 22-3; See also, Raef Zreik, ‘Ronald Dworkin and Duncan Kennedy: Two Views of Interpretation’ (2019) 32(1) Canadian Journal of Law & Jurisprudence 195, 195 (n 2). 106 (2019) 4 Perth International Law Journal Comparative Legal Methodology fundamental than rules’,217 we must first have a proper (Dworkinian) understanding of the framework or nature of law and legal practice in which rights operate. In relation to international law, the application of comparative legal methodology to it provokes thought about the construction of doctrine in a particular area of law — eg the grundnorms, character, nature, structure, framework, historical developments, evolution, theory, etc of that area of law — and allows the international lawyer to make informed decisions about the method he or she should formulate to conduct his or her research. It enables the international lawyer to ask the right, or suitably right, questions.218 In this thought process, comparative methodology will inform the international lawyer about the ‘tools’ in his or her subject matter critical for his or her research task. It will inform the international lawyer about the need to have the proper understanding and be aware of the theory of international law that informs the substance and construction of doctrine in it (ie the ‘hierarchies of sources, law-determining agencies, and elements of such agencies’219 in international law). In turn, this informs the international lawyer about formulating the right intermediary jurisprudence, using a method of comparative analysis or a combination of those methods.220 When this is done, the international lawyer will be able to employ ‘reliable measuring rods for determining the significance of instances taken from state practice, of individual decisions of international and national courts, and of the writings of the most highly qualified publicists’.221 Succinctly put, it is the choice of approaches to critique that defines the rigor of analysis. In the process of formulating an intermediary jurisprudence, the international lawyer is compelled to formulate a scientific222 understanding of his subject matter and understand how doctrine in that area of law is formed. In turn, this leads to a method of analysis that is informed by that understanding of doctrine creation less likely to be ‘marred by blind spots when we completely surrender to a particular method’.223 In the Foucauldian definition of critique, the process of formulating an intermediary jurisprudence is a useful exercise in ‘pointing out on what kinds of assumptions, what kinds of familiar, unchallenged, unconsidered modes of thought the practices we accept rest’.224 It is also useful in enabling the international lawyer to convey that understanding in his or her writing. Such an approach is consistent with the views of Professor Craven, who posits that similar exercises would resolve problems surrounding ‘largely confused’ areas of international law, such as the law of state succession to treaties.225 Granted that even if the application of such methodology would result in an outcome that does not fulfil the sociological or inductive approach in international
217 Dworkin (n 216). 218 Or, to formulate the right research questions; Samuel (n 11) ch 2. 219 Schwarzenberger, ‘The Inductive Approach to International Law’ (n 40) 568. 220 Brink (n 189). 221 Georg Schwarzenberger, ‘The Inductive Approach to International Law’ (1947) 60 Harvard Law Review 8 222 Scientific in the legal sense, eg, Hermann Kantorowicz, ‘Legal Science – A Summary of its Methodology’ (1928) 28(6) Columbia Law Review 679; cf Georg Hegel, Introductory Lectures on Aesthetics, ed Michael Inwood, tr Bernard Bosanquet, (Penguin Books, 2004) 17 et seq. 223 Jerusha Asin, ‘‘South Africa is not an accused’: State (non) co-operation with the ICC and the case of the arrest warrants for President Omar Al-Bashir’ (2017) 3 Strathmore Law Journal 157, 158-9. 224 Michel Foucalt, ‘Practicing Criticism’ in L Kritzman (ed), Politics, Philosophy, Culture: Interviews and Other Writings 1977-1984 (Routledge, 1990) 154-5. 225 Craven (n 2). (2019) 4 Perth International Law Journal 107 Jing Zhi Wong law,226 the benefit of adopting some structured and methodological approach allows the reader to better discern the methodical approaches utilised by the author. In turn, this leads to a better understanding of the content of law preferred by the author and, with that, greater transparency and understanding of the state of affairs in international law.227 This enables the development of a enquiry-based sociological or inductive approach in the identification of customary international law.
IV CONCLUSION Given the highly contested nature of international law, it is inevitable that international lawyers — and, indeed, the World Court — would take vastly different methods in identifying the content of ‘customary international law’ (inductive, deductive, assertion, etc). However, the understanding of how doctrine in international law is formed should not be obscured by what individual international lawyers, or the World Court, desire to be custom. As can be seen from the preceding parts, the problems of identifying customary international law is marred by problems with the articulation of what the practical approach to fulfilling the conceptual understanding of custom should be. The World Court adopts, as the literature suggests, three approaches: induction, deduction, and intuitive assertion. These represent three different articulations of what is perceived to fulfil the conceptual understanding of customary international law. As Professor Kennedy aptly posits: People inhabit the interactive, articulative or performative aspect of global power with varying degrees of clarity about where they are and how things works. Strongly held myths about how the society operates can feel like incontrovertible facts. We might think we live in a ‘nation,’ held together by a ‘constitution’, setting the mandate, institutional form and jurisdictional reach of public authority; legitimate when representative, in the public interest but not when harnessed to private interest. At some point, the ‘constitution’, like the ‘international legal order’ or ‘international community’ or ‘global market’ becomes a cargo cult. People accept it as real, a thing with needs, necessities, limits — the point is only to articulate what they are.228 It is argued that, in identifying the content of customary international law, a shift towards a scientific, sociological, and descriptive approach of analysis is highly
226 As Judge Tanaka in his Dissenting Opinion in the North Sea Continental Shelf Cases (n 92) 178 held: ‘The attitude which one takes vis-à-vis customary international law has been influenced by one’s view on international law or legal philosophy in general. Those who belong to the school of positivism and voluntarism wish to seek the explanation of the binding power of international law in the sovereign will of States, and consequently, their attitude in recognizing the evidence of customary law is rigid and formalistic. On the other hand, those who advocate the objective existence of law apart from the will of States, are inclined to take a more liberal and elastic attitude in recognizing the formation of a customary law attributing more importance to the evaluation of the content of law than to the process of its formation’. 227 Such an approach is consistent with the ‘requirement of publicity’ in Lon Fuller’s 8 desiderata of law. While this comment posits that this ‘would’ occur, it is unlikely global institutions would adopt such a methodology; See also, Martti Koskenniemi, ‘What Use for Sovereignty Today?’ (n 5) 68. 228 David Kennedy, A World of Struggle: How Power, Law and Expertise Shape Global Political Economy (Princeton University Press, rev ed with Afterword, 2018) 286-98 (emphasis in italics added), especially 289; cf Wittgenstein, whom Fuller quotes as saying “The limits of my language are the limits of my world”: Lon Fuller, The Morality of Law (Yale University Press, rev ed, 1969) 186. 108 (2019) 4 Perth International Law Journal Comparative Legal Methodology desirable. It is shown that comparative legal methodology, being a theory of method of appraising the sources of law and their content, does this and is highly appropriate for this task. Adopting comparative legal methodology in international law analyses, in turn, allows the international lawyer to formulate an intermediary jurisprudence that is jurisprudentially sound in both the ‘authority’ and ‘enquiry’ paradigms. This allows for more accurate and clearer analyses of the sources of international law. Comparative legal methodology, as an epistemology of legal reasoning, facilitates better articulation, appraisal, and assessment of doctrine in international law, fulfilling the conceptual understanding of customary international law. Even if such methodology is not adhered to, thinking about one’s methodology for examining the evidence of custom can facilitate clearer and more accurate identification and articulation of customary international law.229
229 In Wittgenstein’s words: ‘The ideal, as we think of it, is unshakable. You can never get outside it; you must always turn back. There is no outside; outside you cannot breathe. – Where does this idea come from? It is like a pair of glasses on our nose through which we see whatever we look at. It never occurs to us to take them off. … We predicate of the thing what lies in the method of representing it. Impressed by the possibility of a comparison, we think we are perceiving a state of affairs of the highest generality.’: Ludwig Wittgenstein, Philosophical Investigations, tr G E M Anscombe (Basil Blackwell & Mott, 2nd ed, 1958) 45-6; See also, Del Mar (n 54).
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110 (2019) 4 Perth International Law Journal Judicialization of the Arbitral Process JUDICIALIZATION OF THE ARBITRAL PROCESS BRUNO ZELLER*
ABSTRACT This paper will critically investigate the issue of judicialization of arbitration. Specific issue, such as length complexity and cost of proceeding, will be analysed. It will conclude that a balancing of party autonomy and fairness will assist in resolving the criticism. In effect, a move towards a best practice framework will minimise the trend. The issues of the seat as well as the incidence of setting aside and enforcing arbitral awards are specifically discussed with the view of finding judicial “creep”.
I INTRODUCTION Commercial arbitration has undoubtedly progressed to a point where the question needs to be asked: what next? The point of progression is arguably the strengthening of arbitral rules to keep up with changes in economic activities. One example is the change in the ‘Hong Kong Rules’ to be able to enforce foreign judgment in China.1 There is always a tension between national laws and arbitration considering that national laws attempt to preserve what might be termed “sacred cows”. National laws indeed have and must establish new “and perhaps abbreviated domestic priorities for the 21st century.”2 The new “talking point” evolves around the issue of judicialization of the arbitral process. It is interesting to note that Carbonneau borrowed the words of David Stewart, who noted regarding this issue as: “manifest destiny, manifest disregard, or manifest error.”3 What is uncontested is that arbitration has always been attractive due to its commercial expedience and, importantly, its functional pragmatism.4 The point is that arbitration has offered a process which - not completely removed from the judicial system – was still faster, less costly and produced results that were “innovative.” However, as Carbonneau has noted, “arbitration has passed from the state of nature to life in civilized society and, in the process, has acquired many of the trappings of the dysfunctional judicial trial.”5 This has been pointed out by a survey conducted by Queen Mary University of London in 2013, which pointed to “‘judicialization of arbitration’ as the single greatest concern
1 * Dr. Bruno Zeller is a Professor of Transnational Law in the Law School at the University of Western Australia, Perth, Adjunct Professor, School of Law, Murdoch University – Perth, Fellow of the Australian Institute for Commercial Arbitration, Panel of Arbitrators – MLAANZ, Visiting Professor Stetson Law School, Florida, Humboldt University Berlin and Aalborg University Denmark. Hong Kong International Arbitration Centre (HKIAC), SECTION V. AWARDS, DECISIONS AND ORDERS OF THE ARBITRAL TRIBUNAL, (Web Page, 2018) < https://www.hkiac.org/arbitration/rules-practice-notes/ administered-arbitration-rules/hkiac-administered-2018-2>. 2 Thomas Carbonneau, ‘Carbonneau on International Arbitration: Collected Essays’ (2011) Juris Net 125. 3 Ibid. 4 Ibid [126]. 5 Ibid at [127]. (2019) 4 Perth International Law Journal 111 Bruno Zeller in the future of commercial arbitration and one of its most damaging obstacles. “6 Stipanovich also urged arbitrators to not follow lawyer-made “monolithic” procedures.7 In addition, Justice Moreno from the California Supreme Court noted that: “arbitration is intended to be an efficient, fair, and inexpensive avenue for resolving complex disputes but I’ve seen a trend lately where it is becoming ‘judicialized’, with the courts getting more and more involved.” 8 In essence, it has been argued that arbitration is only a step parties must undertake before litigation.9 Recently, several arbitrators have conducted interviews and sent out questionnaires investigating whether legalism or judicialization is infecting arbitration.10 Arguably, this criticism is directed where arbitration and the judicial system – due to national laws – must meet. The point is that arbitrators cannot acquire judicial functions as this is the reserve of national laws and the legal process itself. The courts will always exercise an oversight over the arbitral process and specifically in the area of setting side or enforcing awards the national law of a state will direct the process. The UNCITRAL Model Law on International Commercial Arbitration in Articles 34 and 36 and the New York Convention in Article V have regulated this issue. However, the point is that only nations where the two instruments have been adopted will potentially exhibit a harmonisation. It follows that the choice of the seat is important in order to at least have a harmonised and hence relatively predictable approach in the process of judicial oversight. Arguably, the problem of judicialization can be grouped into an ‘internal’ problem and into an ‘external’ problem. The internal problem, in effect, is driven by arbitrators that are primarily retired judges who bring their experience of the running of a trial into the management of the arbitration. Unfortunately, this simply creates extra cost and is not timely because the arbitration is more akin to a trial. Phillips also remarked: “One arbitrator attributed the problem to lack of arbitrator training, citing many retired judges who have become arbitrators who simply do in arbitration what they did in court. However, many respondents said that lawyers too “fall back on methods they know” and “have difficulty getting out of the litigation paradigm.”11 Horvath further notes that failure to abandon judicialization of arbitration may
6 Bruno Zeller and Camilla Andersen, ‘Discerning the Seat of Arbitration – An Example of Judicialisation of Arbitration, Vindobona Journal of International Commercial law and Arbitration’(2015) 192, 195. 7 Thomas Stipanowich, ‘Arbitration: The “New Litigation”’ (2010) University of Illinois Law Review, 1, 1-60. 8 LEGAL NEWSLINE, Justice Moreno: Arbitration Becoming ‘Judicialized’, (Web Page, 18 February 2010)
II IS THERE JUDICIALIZATION? Undoubtedly, there are elements of judicialization within arbitration. As noted above, arbitrators themselves have contributed to it by prolonged formalistic procedures of judicialization within arbitration. Additionally, large companies engage senior lawyers to prepare for hearings and they are using the same tactics used in litigation and, hence, prepare lengthy briefs while searching for legal intricacies in making or responding to claims. Flannery suggests that 85% of costs are party costs due to hiring lawyers and experts.14 It is unsurprising that Gerbay’s study reveals that arbitration has not suddenly become judicialized but, instead, only perceptions of the process draw this picture.15 The driving factor is the observation that costs and the duration of arbitrations have made arbitration less attractive. However, the issue as Gerbay noted is that little research has been conducted and empirical data is scarce.16 Thus, the issue of judicialization rests on anecdotal evidence. It rests mainly on the argument as advanced by Fali Nariman, who noted: “[international commercial arbitration] has become indistinguishable from litigation, which it was at one time intended to supplant.”17 Even if that was true, it can also be argued that arbitration has become more sophisticated and, accordingly, more procedurally formalized. The fact that most institutional rules are constantly updated to take note of developments in the field speaks for itself. As arbitration is getting “older” it can also become more sophisticated; hence, a certain similarity between litigation and arbitration is inevitable. In most cases, there is only one “best practice” formula to deal with procedures. The fact that there are still
12 Günther Horvath ‘The Judicialization of International Arbitration : does the Increasing Introduction of Litigation-Style Practices, Regulations, Norms and Structures into International Arbitration Risk a Denial of Justice in International Business Disputes?’ (2011) International Arbitration and International Commercial Law: Synergy, Convergence and Evolution 251, 271. 13 Trakman (n 9) 406. 14 Louis Flannery and Benjamin Garel, ‘Arbitration Costs Compared: The Sequel’, (2013) Global Arbitration Review 8.1, 4. 15 R. Gerbay, ‘Is the End Nigh Again? An Empirical Assessment of the “Judicialization” of International Arbitration’ (2014) 25(2) The American Review of International Arbitration 223, 226-7. 16 Ibid. 17 Fali Nariman, ‘The Spirit of Arbitration-The Tenth Annual Goff Lecture’ (2011) Arbitration International 16, 262. (2019) 4 Perth International Law Journal 113 Bruno Zeller significant differences between arbitration and litigation, such as confidentiality, indicates that the two systems are not identical. It follows that the issue of cost and increased time is not to be confused with judicialization. Cost and delays are a consequence of complex commercial issues. This is confirmed by Gerbay and others. They have found that there is no evidence to support that international arbitration has become more judicialized but that commercial disputes are increasingly larger and more complex. Thus, such disputes are procedurally complicated, which increases costs and time.18 A good example is the recent Yukos dispute dealing with an award of 38 billion Euros.19 Simply put, it was a claim of indirect expropriation that was brought by three shareholders against the Russian Federation. It follows that courts are increasingly asked to assist in matters that are beyond the scope of the agreement or not within the competence of the arbitrators. It must always be remembered that, whether we deal in litigation or arbitration, an adjudicator cannot gloss over material facts, wrongly apply the relevant law, or exclude expert witnesses. This is exactly the reason why the model law and the New York Convention allow a review if justice has not been served. It is simply not possible to exclude courts from the arbitral process. This is not a recent phenomenon. Indeed, the Model Law and the New York Convention have recognised this issue long time ago. Arguably, courts intervene in relation to the seat and enforcement; setting aside awards has long been recognised and enshrined in the relevant rules. What can be said is that there is select judicialization within arbitration; however, whether it is detrimental to the progress and continued success of arbitration is yet to be seen. Gerbay offers a good definition, namely: the term ‘judicialization’ is used to refer to the phenomenon by which international arbitration procedure increasingly resembles domestic litigation, as a result of an increase in procedural formality/sophistication and litigiousness.20 Each of these reasons, namely increased formality and litigiousness, need to be examined. Gerbay, in his sample study, isolated the issue of challenges to arbitrators. The unsuccessful challenges and inter-party agreement on the number of arbitrators reflected the litigiousness of the arbitral process.21 His conclusion was that “the empirical evidence examined does not offer clear proof, as it might have been expected, of an increase in the litigiousness of international arbitration proceedings.”22 The issue of increasing formality and sophistication is more difficult to determine. “[T]he “inflation” of the procedural rules published by arbitral institutions, in the sense of an incremental expansion of institutional rules in both length and detail”23, is often taken as an indicator of judicialization. Just because rules are expanded does not in itself constitute a good indicator. A better view is that “judicialization depends on the actual substance of such rules.”24 Again, the evidence is not convincing. Some rules, such as Article 22(1) of the ICC Rules (2012), which states: “the arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute”, fosters simplicity.
18 Trakman (n 9) 408. 19 Yukos Universal Limited (Isle of Man) v The Russian Federation (2005) PCA 4. 20 Ibid (n 10) [230]. 21 Ibid [233]. 22 Ibid [235]. 23 Ibid [236]. 24 Ibid. 114 (2019) 4 Perth International Law Journal Judicialization of the Arbitral Process Additionally, there is a drop in the awarding of partial awards that also speaks against procedural formalism and judicial heaviness. Yet, the only indicator “that does support the idea that arbitration has become judicialized is the frequency of three-member tribunals as opposed to sole arbitrators.25 The debate in relation to judicialization arguably looks at “the way we did business” ten or twenty years ago and proceeds to compare it with today’s global trade. Indeed, disputes that are more complicated involve more money and are the result of disputes between international corporations that have grown in complexity and size. The world - as the saying goes - does not stand still for anybody; this includes arbitration. It is only natural that arbitrations are more sophisticated and more complex. Gerbay observed that: “In this respect, comparing the statistical information about the types of cases referred to ICC arbitrations 20 years ago and today is fascinating. It illustrates how globalization has reshaped the arbitration industry. The categories of disputes that featured prominently in the early 1990s have become much less important than some of the new categories (which often did not feature in the early statistical reports). … trading disputes represent a fraction of the ICC’s arbitrations. In 2012, the proportion of trading disputes had fallen to a mere 6% of the ICC’s caseload. In the same period, M&A disputes have become significantly more frequent at the ICC”.26 The conclusion that can be drawn is that arbitration has become more sophisticated and complex. Arguably, therefore, the question of judicialization needs to be distinguished from the effects of the maturing of a system that is keeping pace with the issues of globalisation. Put simply, what matters is not that arbitration proceedings be quick and simple, but that they be appropriate considering the particular needs of the case-- needs which may include, as the case may be, sophistication and lentor.27 It appears that a degree of cross purpose has entered the debate. If the ability to resolve complex and difficult disputes, which do take longer than just a quick fix, is an expression of judicialization then arbitration has seen a degree of judicialization. However, the better view is that arbitration has risen to the challenge of twenty-first century disputes where major international corporations expect arbitral solutions. This is because the benefit of finality and the limited reasons to either set aside an award or refuse recognition is an important feature. It is interesting that a survey of arbitrators suggested that “the cure is in [the arbitrators] hands, and that they must control and better manage the process” and “that the arbitrator set a business-like tone in the beginning. “Counsel then will readily fall in line.”28 The problem, as highlighted above, is that imbedded under the current heading of ‘judicialization’ is a rhetorical simplification of the state of arbitration today. If any judicialization has taken place – which is debatable - it would be in areas where court interference is most prevalent when dealing with the seat of arbitration and the enforcement process.
25 Ibid [237]. 26 Ibid [240]. 27 Ibid [246]. 28 Phillips (n 10) [40]. (2019) 4 Perth International Law Journal 115 Bruno Zeller
A The Seat of Arbitration – an Example of Judicialization of Arbitration? As noted above, arbitration cannot function properly in a legal vacuum. Kerr LJ in Bank Mellat v Helliniki Techniki SA already noted in 1985: Despite suggestions to the contrary by some learned writers under other systems, our jurisprudence does not recognise the concept of arbitral procedures floating in the transnational firmament, unconnected with any municipal system of law.29 This is true whether we operate in litigation or arbitration, but the difference is that the plaintiff has the option to choose a legal system if there is a connecting factor under ligation. In effect, he can choose several, as long as there is a connecting factor. This is not the case in arbitration. The only determinate factor to a seat is a contractual clause in the contract to that effect or, at least, the nomination of an institutional rule. If there is no choice in this regard, current case law suggests that a court will determine a seat taking account of all the surrounding circumstances. The key question here is: is that necessary? A valid argument can be made. First, there is no legal block to nominate and appoint arbitrators even if no seat has been nominated. Accordingly, arbitrators “need to have the confidence to make sound business judgements about issues like an applicable law and how their decisions are guided which do not need to conform to rigid procedural rules.”30 Institutional rules have already made this change, hence recourse to a court is not necessary. As an example, the Singapore Arbitration Rules (2016) note in Article 21: The parties may agree on the seat of the arbitration. Failing such an agreement, the seat of the arbitration shall be determined by the Tribunal, having regard to all the circumstances of the case.31 However, not all arbitrations rely on procedural rules that allow the arbitrators to nominate the seat. Therefore, recourse to courts will still be an unfortunate feature where no judicial inference is realistically necessary. The New York Convention supports this view because there is nothing in the Convention requiring the seat to be found, nor is the lack of it any obstacle to enforcement that can take place anywhere. It is also not bound to a seat. The problem is that: Arbitrators fear non-enforcement, and Courts fear non-transparent regulations. So – at the danger of oversimplifying a complex process: if Courts embrace that enforcement of commercial arbitral awards arbitration enforcement is not pre-requisite on formalities and procedures and transparency of regulation, but embraces the promise of flexible commercial justice (as they ideally should) then arbitrators can let go of their fear of non-enforcement and everyone can focus on the outcome of the dispute. 32 Once the issue moves to setting aside or enforcing the award court, interference
29 [1984] QB 291. 30 Bruno Zeller and Camilla Andersen (n 6) 210. 31 SIAC: Singapore International Arbitration Centre, SIAC Rules 2016, (Web Page, 1 August 2016)
B Setting Aside and the Enforcement Process In these circumstances, the argument changes as “ courts enforcing arbitral decisions need not insist on the transparency of regulations and procedure found in litigation.”33 The enforcement process is not a rehearing of the case; it is entirely out of the arbitral process. The only connection is that the actual decision was reached by arbitrators, not judges, and that reason for not enforcing an award is only found in “arbitration law.” Accordingly, judicialization is not a feature in this process which in effect is only needed if parties to an arbitration have not honoured the award.
III CONCLUSION This paper has demonstrated that judicialization is not an issue; rather, it is a misconception. Since “arbitration is a consensual process crafted by the parties, generally through their attorneys, they are in the driver’s seat when it comes to the process that they get.”34 However, in focusing on the need for increasingly cheap and efficient arbitral awards, commentators and arbitration practitioners risk the danger of searching for the ‘El Dorado’ of arbitration. In this instance, every arbitral award is quick, efficient, and streamlined. Trakmanet all argued correctly: Rather than support overbroad and general contentions that [International Commercial Arbitration] ICA is inherently flawed for being ‘judicialized’ or arguing that ICA arbitrators consistently fail to focus sufficiently clearly on material issues, commentators and practitioners alike need to realize that the quality of an ICA award relies on many factors.35 This paper has demonstrated that such qualities are desirable only in some cases. Such qualities should not portray simplicity in arbitral decision-making as an end in itself, in disregard of the potentially diminished quality of those decisions.36 It appears that it is not the arbitral ‘system’ that gives rise to excessive formalism but, rather, the participants in the process; namely, clients, arbitrators and lawyers. In the end, it is the arbitrator who must “take charge and not live in fear of an appeal to overrule their award.”37 What is needed is a critical and contextual analysis of the normative attributes of arbitration globally, beyond the narrow critique of undue legal formalism.38
33 Zeller and Andersen (n 6) 211. 34 Phillips (n 10) [38]. 35 Trakman (n 9) 432. 36 Ibid [406]. 37 Philips, (n 9) [42]. 38 Trakman (n 9) [407]. (2019) 4 Perth International Law Journal 117 Bruno Zeller
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118 (2019) 4 Perth International Law Journal An Overview and Consideration of De-Radicalisation in Malaysia
AN OVERVIEW AND CONSIDERATION OF DE- RADICALISATION IN MALAYSIA
IAN TAN*
ABSTRACT It is only in the last decade that the concept of de-radicalisation has gained prominence to encompass the strategies needed to rehabilitate and reintegrate extremists and radicals back into mainstream society. This article briefly traces the emergence of this discourse before exploring the concepts of radicalisation and de-radicalisation at a theoretical and conceptual level. The context and backdrop of Malaysia’s de-radicalisation program is reviewed before an in-depth overview of the program is given. Different considerations are also explored, including the effectiveness of Malaysia’s de-radicalisation program, as well as efforts at an international level in the area of de-radicalisation.
I INTRODUCTION In 2017, the United Nations (UN) Security Council adopted Resolution 2396: a broad resolution which, among other measures, called on member states to do more towards the rehabilitation and reintegration of returning foreign fighters, as well as those who were demonstrating signs of radicalisation towards violence.1 A year later, in a statement to the UN’s High-Level Conference on Counter-Terrorism, Malaysia’s Permanent Representative to the UN, Ambassador Muhammad Shahrul Ikram Yaakob, said that ‘[c]ounter terrorist measures are more effective with a de-radicalisation program’. 2 The importance of such rehabilitation and reintegration programs was also emphasised by other nations in attendance at the conference.3 This underscores the growing prominence of de-radicalisation within the counter-terrorism discourse and the importance that is placed on it by individual member states as part of their ‘countering and preventing violent extremism’ (CPVE) policies. Before considering this concept further, it is worthwhile to consider how the radicalisation and de-radicalisation discourse emerged. Prior to the September 11 attacks
1 * Ian Tan graduated from the University of Western Australia (UWA) with a Bachelor of Arts in 2019, majoring in Political Science & International Relations and History. He is currently completing his Master of Teaching (Secondary) at UWA, specialising in Humanities and Social Sciences. United Nations, SC Res 2396, UN SCOR, 8148th mtg, UN Doc S/RES/2396 (21 December 2017). 2 Muhammad Shahrul Ikram Yaakob, ‘Statement to the United Nations High-Level Conference of Heads of Counter-Terrorism Agencies of Member States’ (Speech, United Nations High-Level Conference on Counter Terrorism, 27 July 2018)
(2019) 4 Perth International Law Journal 119 Ian Tan in 2001, the word ‘radicalisation’ was more synonymous with the far-right and Nazism4 and was loosely used to refer to an individual’s shift towards a more radical view, one outside of the mainstream form of politics.5 Similarly, the term has also been used — as far back as the early 1970s — to denote the process of escalation, in both form and intensity, by social movements into violent and covert groups.6 It was only around 2004 and 2005 when the meaning of radicalisation began to evolve. Attacks in Madrid, in 2004, and London, in 2005, by home-grown terrorists — as well as the rise of counter-insurgency in Iraq by Al-Qaeda forces following the fall of Saddam Hussein — highlighted the need for a change in strategy by Western governments, away from its current approach of hard, physical, and repressive force.7 In May 2005, the Bush administration shifted its counter-terrorism efforts, away from solely targeting Al-Qaeda leaders, towards a wider strategy against violent extremism and radical Islam.8 This approach became known as the ‘hearts and minds’ strategy. They contended that the ‘battle of ideas’ would be just as important as the battle for physical territory by physical force; they also contended that the fight against radical Islam would be both cultural and preventative.9 Thus, it was around this time that the term radicalisation came to symbolise, and become associated with, the shift towards more radical and extremist views of Islam.10 This shift has allowed the concept of radicalisation, and by extension de- radicalisation, to emerge as a way of analysing and explaining the process and reasons behind a person becoming radicalised, as well as what preventative strategies can be used beyond hard, physical force.11 While the discourse surrounding this field remains relatively young, de-radicalisation as a term now denotes the approach that is used in tackling violent extremism and has formed a core part of CPVE efforts.12
4 Arun Kundnani and Ben Hayes, ‘The globalisation of Countering Violent Extremism policies: Undermining human rights, instrumentalising civil society’ (Research Paper, Transnational Institute, February 2018) 4
120 (2019) 4 Perth International Law Journal An Overview and Consideration of De-Radicalisation in Malaysia
II RADICALISATION A Definition The emergence of the radicalisation discourse has allowed for a renewed conversation over the different economic, political, psychological, and social forces which underpin terrorist and political violence.13 However, to provide a concise definition of radicalisation is problematic, given the lack of universality as to what it entails. As many as seven different definitions of radicalisation have been identified, with a general consensus emerging that it encompasses an escalating process leading towards, and ultimately concluding in, the use of violence.14 It is important to note that not all radicalisation necessarily leads to violence or acts of terrorism. Radicalisation centres around two foci: the pursuit of societal change — to achieve a particular or specific goal— through largely peaceful means, or through the use of violence.15 The terms ‘behavioural radicalisation’ and ‘cognitive radicalisation’ have emerged to highlight this dimension. While behavioural radicalisation (‘violent extremism’) refers to the use of extremist behaviour, such as violence or violent means, cognitive radicalisation (‘cognitive extremism’) refers to the emphasis of holding radical views outside of the mainstream.16 There is debate over whether holding such radical views can be considered as being radicalised, as well as whether there is a relationship between holding radical views and committing acts of extremist behaviour.17 While not all cognitive extremists end up becoming violent extremists, most, if not all, violent extremists start off as cognitive extremists.18 After all, when distinguishing between violent extremists and more moderate leaders, the former are those ‘who are the most optimistic about the usefulness of violence for achieving goals that many, and often most, support’.19 The Australian Government’s official definition of radicalisation states that it is the ‘process by which individuals come to accept violent extremism as a legitimate means of pursuing their political, ideological or religious goals’, with violent extremism defined as the willingness or support of other people in using violent means towards achieving their goals.20 The following definition has been offered by the former Malaysian Home Affairs Minister, Dr Ahmad Zahid Hamidi: ‘[T]he process whereby individuals (and
13 Peter R Neumann, ‘Introduction’ (Conference Paper, The First International Conference on Radicalisation and Political Violence, 17–18 January 2008) 4
(2019) 4 Perth International Law Journal 121 Ian Tan even groups) develop over time, a mindset that can — under the right circumstances and opportunities — increase the risk that he or she will engage in violent extremism or terrorism’.21 Both these definitions highlight the wide dimension over what constitutes radicalisation. While the Australian Government sets a higher threshold of radicalisation at those who are seeking to advance radical views through violence, the Malaysian Government considers those who are just holding radical views as being radicalised.
B Radicalisation As A Process There is a broad consensus that radicalisation is not an overnight occurrence, but rather an incremental process that may develop quickly within an individual.22 In 2004, the Dutch intelligence service became the first Western intelligence agency to publicly depict radicalisation as an ideologically-driven process that could be home- grown and self-nurtured without the recruitment of a non-state actor.23 The process of radicalisation is initiated and influenced by different social and psychological factors as commitment towards an extremist political and religious ideology increases, leading to a change in attitudes and behaviour.24 Even if views differ on the length and complexity of the process, most major theories of radicalisation all accept that it is a process and a progression over time, with violent extremism being the ultimate end-point.25 One of the earliest models on radicalisation was developed by the New York City Police Department (NYPD). This model employs a linear progression of radicalisation from cognitive radicalisation to violent extremism.26 The model has four stages: pre- radicalisation, the stage prior to embarkation onto the path of radicalisation; self- identification, where individuals begin to be exposed to radicalised teachings and adopt it as their own; indoctrination, the third stage, marked by an intensification of radicalised beliefs towards the conclusion that violent extremism is required to advance the cause thereof; and lastly, jihadization, where radicalised individuals take up the cause of the jihad, which includes the planning, preparation, and execution of a violent act.27 It is important to note that this theory was written from the lens of Islamic radicalisation, though it could easily be applied to any radicalised individual. Another similar model to Silver and Bhatt’s is the ‘Typology of Radicalism’ model
21 Ahmad Zahid Hamidi, ‘Malaysia’s Policy on Counter-Terrorism and Deradicalisation Strategy’ (2016) 6(2) Journal of Public Security and Safety 1, 11. 22 Veldhuis and Staun (n 15) 6. 23 Kundnani and Hayes (n 5) 6. 24 John Horgan, Walking Away from Terrorism: Accounts of Disengagement from Radical and Extremist Movements (Routledge, 2009) 152 (‘Walking Away from Terrorism’); Neumann (n 16) 874; Veldhuis and Staun (n 15) 6. 25 Neumann (n 16) 874. See Fathali M Moghaddam, ‘The Staircase to Terrorism: A Psychological Exploration’ (2005) 60(2) American Psychologist 161; Clark McCauley and Sophia Moskalenko, ‘Mechanisms of Political Radicalization: Pathways Toward Terrorism’ (2008) 20(3) Terrorism and Political Violence 415; Zeyno Baran, ‘Fighting the War of Ideas’ (2005) 84(6) Foreign Affairs 68. 26 Guhl (n 18) 197. 27 Mitchell D Silber and Arvin Bhatt, ‘Radicalization in the West: The Homegrown Threat’ (Research Report, New York City Police Department, 2007) 6–7
122 (2019) 4 Perth International Law Journal An Overview and Consideration of De-Radicalisation in Malaysia developed by a Malaysian academic. Developed in the context of Malaysia, the model outlines a pyramid with six different stages of radicalisation, each stage signifying incremental increases in the strength and consistency of the adherence, understanding, and application of Islam.28 Due to its restrictive religious laws, which seek to preserve the dominance of Islam in the country, most Malaysian Muslims are segmented into the nominal believers stage — an identity rooted in secular and Western lifestyles, but still identifying religiously as a Muslim.29 Those falling into the occasional and activist stages, the exact boundaries of which can be blurred, are identified by an increased level of devoutness and a clearer identity rooted in Islam, which includes attending prayers, believing in the importance of living an Islamic lifestyle, and striving towards performing the Hajj at least once.30 Progression onto the fourth extremist stage is marked by those who are ‘more enthusiastic about their faith’, with Islam being strongly embedded in their daily life. This stage includes belief in the practising of Sharia principles, making jihad31 a key part of their life and the pilgrimage to Mecca a centrepiece of their faith.32 Aslam’s use of the word ‘extremist’ at this stage can cause some misguidance. A more appropriate word to describe individuals in this stage is ‘fundamentalist’, denoting those who hold a strict, literal interpretation of the Quran. The fifth and sixth stages — radicals and militants respectively — represent the most concerning stages. Radicals are marked by a fierce opposition towards Western attitudes and lifestyles, believing that their role is to help others, and the country, seek contentment from Allah.33 A dim view is held against those who do not oppose Westernisation, and fellow Muslims are encouraged to take an active role in Islamic activities, organisations, and pressure groups.34 Parallels of this stage can be drawn with cognitive extremists. According to Aslam, militants are the radicals who subscribe to an extremist interpretation of the Quran and have ‘grown impatient with the pace of change’, resorting to violence as a means of redressing ills in society and bringing about change.35 Such models have been criticised as not being truly reflective of the radicalisation process.36 It is argued that there is no singular theory or model which can adequately explain why people radicalise; it is also argued that models which place an emphasis
28 Mohd Mizan Mohammad Aslam, ‘A Critical Study of Kumpulan Militant Malaysia, its Wider Connections in the Region and the Implications of Radical Islam for the Stability of Southeast Asia’ (PhD Thesis, Victoria University of Wellington, 2009) 30
(2019) 4 Perth International Law Journal 123 Ian Tan on the development of ideological beliefs as a justification for violent extremism only provide one pathway into radicalisation.37 Drawing on proceedings from the 2006 conference, ‘Paths to Global Jihad: Radicalisation and Recruitment to Terror Networks’,38 Randy Borum writes that ‘[d]ifferent pathways and mechanisms operate in different ways or different people at different points in time and perhaps in different contexts’. 39 Other factors which may contribute to an individual’s radicalisation include a loss of belonging or voice and socioeconomic inequality or repression; those who become violent extremists are driven by fear, adventure, vengeance, or hostility, as well as material enticements.40 Building on the different factors of why people radicalise, twelve different mechanisms have been identified which detail, more specifically, how a group or an individual becomes radicalised, as well as their transition from cognitive radicalisation to behavioural radicalisation.41 While groups or masses of people are more likely to be triggered by conflicts against another party, group, or state, at a general level, radicalisation is triggered by personal grievances and identity.42 The twelve mechanisms or triggers towards radicalisation are segmented into mass radicalisation, group radicalisation, and individual radicalisation.43 While triggers for mass radicalisation occur when a large group of people are in conflict with an out-group — driven by either hate, martyrdom, or jujitsu politics — group radicalisation is triggered by people within a like-minded group who, under isolation or threat, are competing for the same base of support, against a state power, or within a group.44 Radicalisation for individuals is triggered by personal or political grievances, through self-persuasion of the importance of the group’s goals, and by the lure of belonging and acceptance.45
III DE-RADICALISATION A Definitions In 2008, Time Magazine attributed the concept of reverse radicalisation (more commonly known as de-radicalisation) as one of ten ideas changing the world.46 Like radicalisation, the discourse surrounding de-radicalisation remains vague and with
37 Randy Borum, ‘Radicalization into Violent Extremism I: A Review of Social Science Theories’ (2012) 4(4) Journal of Strategic Security 7, 8. 38 See Laila Bokhari et al, ‘Paths to Global Jihad: Radicalisation and Recruitment to Terror Networks’ (Seminar Proceedings, Norwegian Defence Research Establishment, 15 March 2006). 39 Borum (n 37) 8. 40 James Khalil, ‘Radical Beliefs and Violent Actions Are Not Synonymous: How to Place the Key Disjuncture Between Attitudes and Behaviors at the Heart of Our Research into Political Violence’ (2014) 37(2) Studies in Conflict & Terrorism 198, 200. 41 Chuck Crossett and Jason A Spitaletta, Radicalization: Relevant Psychological and Sociological Concepts (Report, September 2010) 39
124 (2019) 4 Perth International Law Journal An Overview and Consideration of De-Radicalisation in Malaysia ambiguities; however, in its simplest form, it can be described as a reversal of the radicalisation process.47 This does not occur overnight. As a ‘social and psychological process’, de-radicalisation is used to reduce ‘an individual’s commitment to, and involvement in, violent radicalization … to the extent that they are no longer at risk of involvement and engagement in violent activity’.48 Similarly, Hamidi referenced the use of different methods and strategies that ‘undermine and reverse the completed radicalisation process’.49 De-radicalisation can also have strategic uses, underscoring its growing prominence among CPVE strategies. The first is that it breaks the potential cycle of violence, whereby a violent attack is met with a strong counter-response, which leads towards the alienation and radicalisation of more individuals; the second is that it distinguishes a softer approach away from the hard, repressive measures deployed in the aftermath of the September 11 attacks; the third is that de-radicalisation can occur spontaneously and without the need for intervention; and the fourth is that de-radicalisation mostly involves the cognitive side of radicalism, specifically the attitudes, values, and beliefs which affect and drive behaviour.50 It is important to note that the fourth point assumes that radical ideology is an indicator of extremist behaviour, which is not always necessarily the case.51 It is important to differentiate between de-radicalisation and disengagement — two terms which are often used interchangeably within the discourse. Disengagement centres on the behaviour and actions of a radicalised individual: it pertains to their renunciation or abandonment of physical violence as a means for advancing their agenda.52 This does not mean that there has been a moderation or reduction in their ideological support or beliefs.53 An extremist can still hold on to their radical beliefs but no longer believe in using violent means to advance their ideology. De-radicalisation, on the other hand, centres on an individual’s cognition: it is noticeably harder to achieve than behavioural disengagement54 and involves the moderation or abandonment of radical ideas, values, aspirations, and beliefs.55
B De-radicalisation As A Process There is a lack of precision, clarity, and consensus over what elements constitute the actual process of de-radicalisation.56 Unlike radicalisation, the field of de-radicalisation remains underdeveloped and less explored, with little published empirical research
47 Della Porta and LaFree (n 6) 7. 48 Horgan, Walking Away from Terrorism (n 24) 152. 49 Hamidi (n 21) 105. 50 Mark Dechesne, ‘The strategic use of de-radicalization’ (2014) Journal Exit-Deutschland 177, 179–180. 51 Guhl (n 18) 206. 52 Elshimi (n 12) 209. 53 Ibid 209; John Horgan, ‘Disengaging from Terrorism’ in David Canter (ed), The Faces of Terrorism: Multidisciplinary Perspectives (Wiley-Blackwell, 2009) 257, 270. 54 Dechesne (n 50) 180. 55 Ibid 181; Horgan, ‘Disengaging from Terrorism’ (n 53) 264. 56 Della Porta and LaFree (n 6) 7; John Horgan and Kurt Braddock, ‘Rehabilitating the Terrorists?: Challenges in Assessing the Effectiveness of De-radicalization Programs’ (2010) 22(2) Terrorism and Political Violence 267, 268.
(2019) 4 Perth International Law Journal 125 Ian Tan conducted in this field.57 The reasons why an individual may be motivated to begin the process of radicalisation may be completely different to the reasons why they seek to disengage or de-radicalise.58 Indeed, different factors and characteristics help influence the motivation to exit from radical and extremist activity.59 The trigger point for exiting extremism is not an overnight occurrence. It begins with the radicalised having a ‘cognitive opening’ to alternative worldviews and viewpoints as a result of a variety of factors.60 This may include experiencing personal trauma, disillusionment with the group leadership, wishing to return back to a normal lifestyle, or pressure from family and friends.61 In an Australian study of 22 former members of violent and non-violent extremist groups, disillusionment with the group leadership and fellow group members, along with burnout and dissatisfaction with violence and radical methods, were cited as the most common reasons for exiting an extremist group.62 Building on the NYPD radicalisation model, a trajectory of terrorism has been opined which suggests that, with disengagement from extremist activity, the process of de-radicalisation follows.63 Indeed, this is generally seen as a necessary step before de-radicalisation.64 It is also important to note that disengagement does not necessarily lead to a change or moderation in radical and extremist ideas.65 When interviewing former terrorists between 2006 and 2008, Horgan argued that, ‘[though] almost all interviewees could be described as disengaged, not a single one of them could be said to be “deradicalized”’.66 Ambiguity still surrounds many parts of the de-radicalisation process. Some of the questions posed have centred around involuntary disengagement (especially at a group level) and its potential impacts,67 why extremists disengage, and what is needed to be done to reintegrate former extremists back into society.68 The term de-radicalisation
57 Anja Dalgaard-Nielsen, ‘Promoting Exit from Violent Extremism: Themes and Approaches’ (2013) 36(2) Studies in Conflict & Terrorism 99, 100. 58 Fathali M Moghaddam, ‘De-radicalization and the Staircase from Terrorism’ in David Canter (ed), The Faces of Terrorism: Multidisciplinary Perspectives (Wiley-Blackwell, 2009) 281. 59 John Horgan, ‘Deradicalization or Disengagement? A Process in Need of Clarity and a Counterterrorism Initiative in Need of Evaluation’ (2008) 2(4) Perspectives on Terrorism 3, 5 (‘Deradicalization or Disengagement?’). 60 Naureen Chowdhury Fink and Ellie B Hearne, Beyond Terrorism: Deradicalization and Disengagement from Violent Extremism (Report, October 2008) 3
126 (2019) 4 Perth International Law Journal An Overview and Consideration of De-Radicalisation in Malaysia itself has come to encompass other terms, including (among others) rehabilitation, reintegration, amnesty, de-mobilisation, and dialogue.69 While these terms do highlight potential stages of a de-radicalisation process, they have not been precisely defined, which has hindered the acceptance of a general framework of what such a process may look like. There are further ambiguities over what the successful endpoint of the process should look like.70 Thus, greater conceptual clarity between de-radicalisation and disengagement is required to enable a greater understanding of the discourse.
IV MALAYSIA: A CASE STUDY A Background Of Malaysia Malaysia is a multi-ethnic, multi-religious nation located in Southeast Asia, bordered by Thailand in the north, the Sultanate of Brunei and Indonesia in the east, and Singapore in the south. It has a population of over 32 million people, made up mostly of ethnic Malays and local indigenous groups, with ethnic Chinese and Indians making up sizeable minorities. The official language remains Bahasa Malaysia, although English, Chinese Mandarin, Hindi, and other local Chinese dialects and indigenous languages are spoken as well. Islam remains the dominant religion in Malaysia, practised by 61.3% of the country — most of whom who are ethnic Malays.71 Freedom of religion is guaranteed under Article 11 of the Malaysian Constitution;72 however, in most states, it is against the law to evangelise to those who profess the Islamic faith. Islam has also been designated as the official religion of Malaysia,73 allowing it to occupy a ‘special and effectively privileged’ status within the country.74 Controversy over the demolishment of Hindu temples, and restrictions over the use of the word ‘Allah’ to denote God by Christians, continue to highlight how religion remains a contentious issue in Malaysia.75 Apostasy laws also prohibit Malays from renouncing the Islamic faith and converting to another religion.76 While a pathway for renouncing Islam does exist, it is a difficult and lengthy process, further limiting and coercing existing Muslims to continue practising Islam.77 The issue of whether Malaysia is a secular or an Islamic state remains contentious, with the former Prime Minister, Dr Mahathir Mohamad, declaring in 2001 that Malaysia is an ‘Islamic fundamentalist state’ — a statement at odds with the secular wording of the Malaysian Constitution.78
69 Horgan and Taylor (n 63) 175. 70 Horgan and Braddock (n 56) 268. 71 Central Intelligence Agency, ‘People and Society: Malaysia’, The World Factbook (Web Page, 27 June 2019)
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B Past Experience From 1948 until the signing of a peace accord in 1989, communists — largely made up of the ethnic Chinese minority — waged a long-running insurgency of assassinations, sabotage, and attacks in an attempt to overthrow the ruling government and take control of the country.79 It was this insurgency, and the subsequent response by the British colonial authorities, that would lay the crucial groundwork for Malaysia’s de-radicalisation program and influence the emergence of the wider radicalisation discourse. In order to counter the rising insurgency, Field Marshal Sir Gerald Templer — appointed High Commissioner of Malaysia by the United Kingdom Government in 1952 — believed that the answer laid not in physical force but in capturing the ‘hearts and minds’ of the Malaysian citizenry.80 Temple is quoted as saying: ‘The answer [to the uprising] lies not in pouring more troops into the jungle, but in the hearts and minds of the people’.81 This approach sought to capture the confidence of the people rather than the potential alienation that would arise from continued use of physical force. This force, with the mass incarceration of Guantanamo Bay as an example, initially dominated how Western governments responded to violent extremism prior to the broader shift in thinking in 2005.82 To counter the rise of radicalisation, the Government moved villagers away from communist strongholds and invested in regional development projects to stem discontent.83 Several other counter-radicalisation methods and initiatives were also deployed to undermine communist propaganda, which led to the eventual signing of the 1989 peace accord. Many of these initiatives are still prevalent today within Malaysia’s de-radicalisation program, including the focus on moderating ideological beliefs and reintegration by providing wellbeing support after completing the program.84 As Mahathir wrote in 2003, the communist insurgents had surrendered because the Malaysian Government fought them with physical force and initiated a campaign to win the hearts and minds of the Malaysian people: They laid down arms because the Government of Malaysia did not just fight them with arms … We carried out a campaign to win the hearts and minds of the people so as to ensure that the terrorists lost their civilian support. We studied the causes of the disaffection of these terrorists and their supporters and took remedial action.85
79 Hamed El-Said, ‘De-Radicalising Islamists: Programmes and their Impact in Muslim Majority States’ (Research Paper, The International Centre for the Study of Radicalisation and Political Violence, January 2012) 25
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In 2001, authorities uncovered a domestic extremist group — the Kumpulan Mujahidin Malaysia (KMM) — which had links to Jemaah Islamiyah (JI), a more prominent and prolific extremist group that operated in the wider Southeast Asian region.86 Members of KKM were mostly young; many of them had become radicalised after attending religious schools in Pakistan and training with the Taliban. Many also held membership with the opposition Pan-Malaysia Islamic Party (PAS), an ultra- Islamist party.87 KKM had sought to weaken the national government and stir up racial and religious tension in the pursuit of a purist Islamic society.88 It was also associated with a string of armed robberies, attacks on Christian and Hindu places of worship, and assassinations, including the murder of a Christian state assemblyman in Penang.89 Multiple attacks against the US Navy were also planned but were not followed through with for logistical reasons, highlighting the willpower to attack but not to become a martyr in the process.90
C The Internal Security Act Though a ‘hearts and minds’ approach was deployed to contain the communist insurgency, this did not mean that hard and repressive force was not also used. In 1957, in response to the communist threat, the British colonial government enacted emergency regulations that allowed for detention without trial — a regulation retained by the Malaysian Government after independence in 1957 as the Internal Security Act 1960 (ISA). Under the ISA, police could hold those who were deemed a national security threat for an initial 60 days without warrant, trial, or access to legal counsel. Following this initial period, the Minister of Home Affairs could authorise further detentions of two-year terms, renewable indefinitely. Malaysia’s first Prime Minister, Tunku Abdul Rahman, commented in an October 1987 affidavit, following the arrest of political scientist Dr Chandra Muzaffar, that [t]he ISA introduced in 1960 was designed and meant to be used solely against the communists … My Cabinet colleagues and I gave a solemn promise to Parliament and the nation that immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent.91 On closer analysis, use of the ISA contravened Malaysia’s domestic law — as well as international human rights obligations — through arbitrary arrest, failure to provide access to legal counsel, lack of habeas corpus and review of evidence, torture, and inhumane conditions which detainees were kept in.92 The ISA has also been used to arrest and silence opposition figures and critics, discouraging participation in the
86 Aslam, ‘A Critical Study of Kumpulan Militant Malaysia’ (n 28) 149. 87 El-Said (n 79) 26. 88 Aslam, ‘A Critical Study of Kumpulan Militant Malaysia’ (n 28) 97. 89 Ibid 142. 90 Ibid 149. 91 Therese Lee, ‘Malaysia and the Internal Security Act: The Insecurity of Human Rights after September 11’ [2002] (July) Singapore Journal of Legal Studies 56, 59. 92 Nicole Fritz and Martin Flaherty, ‘Unjust Order: Malaysia’s Internal Security Act’ (2002) 26(5) Fordham International Law Journal 1345, 1350.
(2019) 4 Perth International Law Journal 129 Ian Tan political process.93 In 1987, the ISA was used in a major crackdown on opposition and activist figures, which, under the pretext of preventing a potential race riot, saw the incarceration of over 100 people as part of Operation Lalang.94 In 2012, as part of a wider transformative program to improve democracy in Malaysia, the ISA was officially repealed by the administration of Najib Razak and replaced by the Security Offences (Special Measures) Act 2012 (SOSMA).95 SOSMA was heralded by Najib as a vast improvement over the ISA, highlighting that the initial period of detention was cut to 28 days, so long as an active investigation by the police was in place, and that no one could be arrested on the basis of their political affiliation or political association.96 However, like its predecessor, SOSMA has been prone to abuse by the Government, including the detention of Maria Chin Abdullah, a reform activist and now Member of Parliament, who was held for 10 days in solitary confinement under SOSMA in 2016.97 In 2015, as the Najib administration moved towards countering extremism within Malaysia, SOSMA was supplemented with the enactment of the Prevention of Terrorism Act 2015 (POTA).98 POTA allowed for the detention of those accused of being a potential terrorist for an initial period of up to two years,99 with the ongoing possibility of extension,100 the use of an electronic monitoring bracelet,101 and justification of a restriction order to limit the areas where a released detainee may travel.102 Indeed, it would not be wrong to argue that POTA is a second re-incarnation of the abolished ISA, sharing many similar characteristics and features. This background of the ISA, as well as SOSMA and POTA, is important as it is under these legislations which those accused of extremism were arrested. POTA is the primary legislation used for the arrest of those who are accused of supporting or engaging in terrorist acts.103 Following an initial period of remand at Bukit Aman, the police headquarters in Kuala Lumpur, detainees are then transferred to Kamunting Detention Centre for the de-radicalisation program. For a brief period following the abolishment of the ISA, the program took place at Simpang Renggam Special Detention Centre in the state of Johor (for male detainees) and Machang Special Detention Centre in the state of Kelantan.104 However, as noted later, Kamunting will once again house the de-radicalisation program. There is no specific time limit for a detainee to complete
93 Ibid. 94 ‘Mahathir vows to repeal security law’, The Straits Times (online, 24 July 2018)
130 (2019) 4 Perth International Law Journal An Overview and Consideration of De-Radicalisation in Malaysia the de-radicalisation program, with POTA allowing indefinite renewals, and much of it depends on how responsive detainees are to the program.
D De-radicalisation Program Malaysia’s de-radicalisation program is a multi-pronged affair that draws together a number of government agencies, including the Department of Home Affairs, the Prisons Department, the Department for Islamic Development, and the Royal Malaysian Police.105 At its core, it is centred on correcting radical interpretations of Islam through re-education, with the ultimate goal of rehabilitating detainees and reintegrating them back into mainstream society.106 The bulk of the de-radicalisation program takes place at Kamunting Detention Centre, a prison located at the township of Taiping in the state of Perak, roughly 250 kilometres north of Kuala Lumpur. Today, the prison houses detainees accused of political and religious extremism and those with communist sympathies.107 Figures released in 2014 showed that nearly 2,800 people have been incarcerated at Kamunting for offences which threatened national security, including 1,702 for being perceived communists, and 193 on terror-related charges.108 The latest available statistics from the Home Affairs Department suggest that five people, four Malaysians and one non-Malaysian, were admitted into the de-radicalisation program.109 Kamunting also houses a special centre which is focussed solely on de-radicalisation and rehabilitation. Concerns were raised in 2017 over the accommodation of extremists in a singular location, with the ‘very dangerous’ dispersed across other prisons.110 During their incarceration, detainees are offered a range of recreational activities, as well as opportunities to gain new skills. Staff members identify their core mission as helping detainees become ‘good citizens’, with their treatment of detainees guided by humanitarian values.111 A range of recreational activities are offered in prison, including libraries, educational classes, physical exercise, lectures, debates, and concerts.112 To aid the reintegration process, there is also a focus on helping detainees gain new skills and opening up different career pathways after release.113 A points-based system is used
105 Parliament of Malaysia, Oral Questions (Parliamentary Reply No 18, 29 March 2017) < 106 Mohd Mizan Aslam, Iffah Bazilah Othman and Nur Aqilah Khadijah Rosili, ‘De-Radicalization Programs in South-East Asia: A Comparative Study of Rehabilitation Programs in Malaysia, Thailand, Indonesia & Singapore’ (2016) 4 Journal of Education and Social Sciences 154, 157. 107 ‘Taiping Shelter’, Malaysian Prisons Department (Web Page)
(2019) 4 Perth International Law Journal 131 Ian Tan for detainees who demonstrate good behaviour during their detention, with rewards and benefits including increased frequency of face-to-face family visits, the ability to buy extra food, and access to television.114 Overall, to help facilitate an environment conducive to effective rehabilitation, the living conditions for detainees in thede- radicalisation program has been made better than for other prison inmates in jail.115 A detainee’s time at Kamunting is built around three distinct phases. The first is an orienting phase, lasting around three months, where the detainee becomes acquainted with the running of the centre and receives, along with religious counselling, an initial exposure to the programme. This follows an initial phase, whereby the detainee is arrested and held for questioning at Bukit Aman, the police headquarters. In this phase, more intel is elicited from the detainee and it is determined which legislation to remand them under.116 If a detainee begins to show a positive response towards rehabilitation in the first phase, they are progressed onto the second, personality enhancement phase, where the correction of the detainee’s radical ideology intensifies.117 The Department of Islamic Development (JAKIM) plays an active role through the provision of counsellors and clerics;118 however, the Malaysian Prisons Department also actively seeks volunteers to contribute as religious speakers.119 The modules of the de-radicalisation program are available in four languages — Malay, English, French, and Arabic120 — and focus on building self-acceptance, building up social skills, the responsibilities associated with being a Malaysian citizen, and religious considerations, including a more moderate way to interpret Islam.121 The scope of the de-radicalisation program has also expanded beyond just ideology to include other contributing factors, such as politics, international relations, living in a multi-cultural society, and other global issues.122 The process of correcting a detainee’s ideology can also be measured in stages. Following the first stage of identifying the misinterpretation of Islam, counsellors face the challenging task of correcting detainees, who are eager to defend their interpretations.123 According to Aslam, ‘[c]ounsellors must counter this with smart answers, using clear and deep knowledge of Islam, because the terrorist detainees would at first argue that the counsellors are infidels’. By the third and final stage, as teachings about Islam and other global issues intensifies, a detainee’s misinterpretations will be replaced by correct, more moderate interpretations.124 It is important to note that the focus is predominantly on abandoning the behavioural
114 Harrigan (n 83) 151. 115 Ibid 150. 116 Mohd Mizan Aslam, ‘A model of deradicalisation in Malaysia’ in Rohan Gunaratna and Sabariah M Hussin (eds), International Case Studies of Terrorist Rehabilitation (Routledge, 2018) 90, 94. 117 Harrigan (n 83) 151. 118 Ibid 152. 119 ‘Community Service’, Malaysian Prisons Department (Web Page, 2012)
132 (2019) 4 Perth International Law Journal An Overview and Consideration of De-Radicalisation in Malaysia component of the radicalisation process and not necessarily on the ideology.125 In 2017, there was controversy over the decision by the Malaysian Home Affairs Department to retain a controversial Islamic cleric, Zamihan Mat Zin, as a religious counsellor within its de-radicalisation program, despite him being stripped of the right to preach in the state of Selangor.126 Zamihan courted controversy after publicly criticising the Johor Sultan, a member of Malaysia’s royal family, for barring a Muslim-only launderette in the state of Johor, as well as making disparaging comments against the ethnic Chinese minority.127 The Government defended the department’s decision to retain the cleric, arguing that Zamihan was an asset to the program because of his successful record in correcting the faith of Muslims associated with extremism.128 The third and final stage of detention in Kamunting is focussed on rehabilitation. Detainees continue to be counselled by religious counsellors as they engage in other programs which aid their reintegration back into society, including courses on anger management, parenting, emotional management, and, to equip them with new skills to enter a career after their release, vocational training.129 An agricultural program has also been established at Kamunting, with the aim of establishing self-sufficiency at the centre in the production of vegetables, cattle, and fish.130 However, Malaysia’s de-radicalisation program goes beyond the walls of a prison. To alleviate the chances of potential recidivism, detainees are monitored and placed under surveillance following their release.131 A detainee may be released unconditionally after completing the program; however, most have restrictive orders placed on them, which limit where they can travel freely, and are placed under strict supervision and monitoring by the police.132 This has included the use of electronic monitoring devices (EMDs), which, according to the former Home Affairs Minister, released detainees have to wear ‘for a certain period of time’.133 Support and continued counselling are also given by case officers and ex-detainees.134 Family also plays an important role in the de-radicalisation process. The potential for marginalisation by society, and for indoctrination by extremist groups as families turn to them for support, highlights the prominence that families have in the process.135 While the Malaysian Government provides financial assistance to families whose breadwinner is detained within the program, the Royal Military Police (along with the Social Welfare
125 Harrigan (n 83) 152. 126 Laili Ismail, ‘Controversial preacher Zamihan to continue public service of reforming religious militants - Deputy PM Zahid’, New Straits Times (online, 9 November 2017)
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Department and other agencies) helps cover the costs of living, including books and uniforms for children, jobs for family members, and, sometimes, even healthcare costs.136 Great care is also taken to prevent the aggravation of families whose members have been incarcerated, including a special education program, which highlights the wrong interpretations of Islam, as well as explanations of why the detainee has been arrested, the legal procedures, and other related information.137
V CONSIDERATIONS A Effectiveness The Malaysian Government has enabled a high level of state backing to their ‘resource intensive’ de-radicalisation program, with religious counselling seen as central to the program’s success.138 However, the lack of statistics makes it difficult to assess and evaluate the effectiveness of Malaysia’s de-radicalisation programme. The success rate has been pegged at around 97%,139 though it is unclear what benchmark it is being measured against. According to the Royal Malaysian Police, the program has a 95% success rate, with 240 detainees completing the program between 2001 and 2011 and only 13 cases of detainees relapsing back into ‘their old antics’.140 Leading scholars have argued that Malaysia’s program is more focussed on disengagement and desistance from terrorism rather than actual de-radicalisation.141 It is also worth noting that, in the past, the state apparatus has used coercion to ensure compliance, which was described as being an effective and conducive way to prevent re-engagement.142 While the introduction of EMDs may have negated this, past detainees have spoken of how government officials used threats against them and their families if they re-engage with militants and/or anti-state activities.143 The coercive nature of this program exemplifies the emphasis on disengagement rather than de-radicalisation.144 Malaysia’s bold claim of success is difficult to corroborate. It is implied bythe Royal Malaysian Police that the success rate of Malaysia’s de-radicalisation program is based on recidivism. Indeed, the rate of recidivism is said to be the most practical way
136 Hamidi (n 21) 13; Harrigan (n 83) 153. 137 Harrigan (n 83) 153. 138 Ibid 155. 139 Hamidi (n 21) 10; ‘97 per cent success rate for Malaysia’s deradicalisation programme, says Nga’, Bernama (online, 1 October 2019)
134 (2019) 4 Perth International Law Journal An Overview and Consideration of De-Radicalisation in Malaysia to assess the success of de-radicalisation programs.145 Many countries do not explicitly state the criteria by which they measure success, nor is there data available which can independently verify it.146 While some independent studies have been conducted on Europe’s de-radicalisation programs, it is unlikely that this will extend to nations in Southeast Asia and the Middle East due to political and security sensitivities.147 This lack of publicity makes it difficult to assess the effectiveness of de-radicalisation programs and to review their negative aspects.148 Lauding its de-radicalisation program as ‘the best in the world’,149 Malaysia has expressed an open willingness to share its program with other nations. The program has been translated into four languages — Malay, Arabic, English, and French — for the purpose of sharing it with other countries.150 Dr Kumar Ramakrishna, from Singapore’s S Rajaratnam School of International Studies, is quoted as saying that: ‘There is a continual exchange of ideas on de-radicalisation and rehabilitation both within and outside government with neighbouring Southeast Asian countries as well as partners further afield’.151 Nations including India and New Zealand have also approached the Malaysian Government for advice and insight into de-radicalisation programs.152 This eminence placed on Malaysia’s de-radicalisation program by the international community does provide an endorsement of the program’s strength and effectiveness.
B International Efforts Towards De-radicalisation Considering the nature of radicalisation and terrorism, which has become increasingly de-centralised and diffused, it follows that there is no single, one-size- fits-all de-radicalisation program.153 De-radicalisation efforts ‘must take account of the culture, mores, traditions, history, and rules and regulations of each country’ and be developed in a way that is consistent with the attitudes on rules and regulations, as well as what is acceptable and unacceptable, in their societies.154 De-radicalisation programs must be closely aligned with countries’ culture, values, and priorities in order for it to
145 Marisa L Porges, ‘Reform School for Radicals’, The American Interest (online, 1 July 2011)
(2019) 4 Perth International Law Journal 135 Ian Tan be successful.155 As individual nations developed their own de-radicalisation programs, it highlighted deep variations over approaches, levels of structure, and formalisation, as well as outcomes and what constitutes success.156 Compared to Southeast Asian and Middle Eastern countries, who view the correction of wrongful interpretations of Islam as being the most effective way of rehabilitation, de-radicalisation programs in Europe have generally placed less emphasis on ideological re-education.157 Instead of re-education, countries in Europe have focussed more on providing economic assistance, welfare, and counselling, with success measured by disengagement from extremism.158 Some programs, like in Saudi Arabia, are more structured, formal, and well-funded; in other countries, they are more informal, less structured, and driven by private individuals.159 These variations show that de-radicalisation programs are often context-specific and highlight the cultural, political, and linguistic factors which underpin them.160 For example, Saudi Arabia’s de-radicalisation program has been characterised as a ‘Saudi solution to a Saudi problem’.161 The program, much like Malaysia’s, draws on the use of clerics and scholars to provide religious counselling and re-education, involves family members in the process, and gives vocational support, including a stipend and employment after release.162 However, such a program would be difficult to implement elsewhere, especially in Western nations, due to the structure of the program and the requirement for a high number of theologically-sound clerics and scholars.163 Furthermore, the Saudi program has been refined and adapted based on its history and past experiences, which leads to a warning of caution as to what can be learnt and taken from them.164 The dominant focus at a global level has been on rehabilitation and reintegration, as well as ensuring that programs comply with human rights and international law. The most comprehensive work done on de-radicalisation was in 2008, when the United Nations Counter-Terrorism Implementation Task Force (CTITF) published a report that mapped out the different counter-radicalisation and de-radicalisation initiatives employed across 34 countries, including Malaysia.165 This was driven by countries looking to learn from the past experiences of other nations and is a reflection of the unknown territory many
155 Ban Ki-moon, Activities of the United Nations System in Implementing the United Nations Global Counter- Terrorism Strategy, UN Doc A/70/286 (12 April 2006). 156 John Horgan and Mary Beth Altier, ‘The Future of Terrorist De-Radicalization Programs’ (2014) 13(2) Georgetown Journal of International Affairs 83, 85. 157 Dalgaard-Nielsen (n 57) 100. 158 Ibid. 159 Horgan and Altier (n 156) 85. 160 Ibid; Horgan and Taylor (n 63) 175. 161 Christopher Boucek, ‘Extremist re-education and rehabilitation in Saudi Arabia’ in Tore Bjørgo and John Horgan (eds), Leaving Terrorism Behind: Individual and Collective Disengagement (Routledge, 2008), cited in Horgan and Altier (n 156) 85. 162 El-Said (n 79) 38–39. 163 Ibid 47. 164 Horgan and Altier (n 156) 85. 165 Counter-Terrorism Implementation Task Force, First Report of the Working Group on Radicalisation and Extremism that Lead to Terrorism: Inventory of State Programmes (Report) 3
136 (2019) 4 Perth International Law Journal An Overview and Consideration of De-Radicalisation in Malaysia governments face, as well as the infancy of the de-radicalisation discourse.166 Though it has been more than a decade since its publication, it still marks one of the largest inventories of non-coercive, soft counter-radicalisation and de-radicalisation programs that are employed across the world.167 Building on a desire for the UN to take a greater role in the prevention of crime and criminal justice, the United Nations Interregional Crime and Justice Research Institute (UNICRI) was established in 1968. Their mission is to build support for the rule of law and to build up just and efficient criminal justice systems, as well as an understanding of crime-related issues.168 Part of their work today has evolved to include working alongside the CTITF in implementing strategies and initiatives that prevent and counter violent extremism, a part of which includes rehabilitation and reintegration.169 CTITF, as part of the Global Counter-Terrorism Coordination Compact, is a task force composed of 37 UN entities and Interpol, established with a mandate from the General Assembly to ensure that there is a common and consistent response by UN agencies to CPVE.170 This compact, signed in 2018, is an embodiment of an ‘All-of-United Nations’ approach, demonstrating the need for collective, multifaceted responses by the UN in countering, and responding to the whole life-cycle of, terrorism — from radicalisation, financing, and travelling to conflict zones, rehabilitation, and reintegration.171 The work of UNICRI has centred around the Fourth Pillar of the Global Counter- Terrorism Strategy in ensuring that human rights are respected and the rule of law upheld as ‘the foundation for the fight against terrorism’.172 Part of this work has included helping to plan, develop, and establish rehabilitation and reintegration programmes for member states who request assistance,173 with the UNICRI having worked with Indonesia, Jordan, Kenya, Mali, Morocco, the Philippines, and Thailand.174 The United Nations Office on Drugs and Crime (UNODC), an entity to the Global Counter-Terrorism Coordination Compact, developed a comprehensive handbook for offering practical guidance on how to manage violent extremist prisoners, preventing radicalisation in prisons, and different programs and strategies for disengagement, de-radicalisation, and social reintegration.175 Malaysia’s de-radicalisation program was one of the case studies featured in the handbook. Central to the UNICRI and UNODC’s work is ensuring that prisoners are treated according to the United Nations Standard Minimum Rules for the
166 Ibid 4. 167 Ibid 3. 168 Nöel Klima, ‘Overview of the UN Counter Terrorism Architecture’ in Strengthening Efforts to Prevent and Counter Violent Extremism: Good Practices and Lessons Learned for a Comprehensive Approach to Rehabilitation and Reintegration of VEOs (United Nations Interregional Crime and Justice Research Institute, February 2018) 11
(2019) 4 Perth International Law Journal 137 Ian Tan
Treatment of Prisoners (the Nelson Mandela Rules). This involves ensuring the dignity and value of detainees; protection from torture or degrading treatment; ensuring basic living conditions, including hygiene and sanitation, health care and drinking water; and support post-release to ensure continued rehabilitation and reintegration into society.176 The UNICRI, along with the International Centre for Counter-Terrorism based at The Hague, also contributed towards the development of the Rome Memorandum on Good Practices for Rehabilitation and Reintegration of Violent Extremist Offenders 2012, which was adopted by the Global Counter-Terrorism Forum (GCTF) in 2012. The GCTF is a multilateral institution founded in 2011 by 29 countries and the European Union to provide a forum for exchanging ideas and experiences, with a goal of achieving a ‘strategic, long-term approach to counter terrorism and the violent extremist ideologies that underpin it’.177 Malaysia itself is not a party to the GCTF; however, the Association of Southeast Asian Nations (ASEAN) is. The UNICRI considers the Rome Memorandum to be the first ‘international soft law instrument’ that is geared towards addressing de-radicalisation, especially within prison settings.178 Though non- binding, it sets out the guidelines by which countries should incorporate and underpin their programs for rehabilitation, disengagement, or de-radicalisation.179 The 25 different Good Practices outlined in the Rome Memorandum have a particular focus on rehabilitation and reintegration in prison settings, including the use of scholars and psychologists, eliciting the support of family members, the use of monitoring after release, and the development of aftercare programs.180
VI CONCLUSION While there continues to be ambiguity surrounding the concepts of radicalisation and de-radicalisation, there is a broad consensus that de-radicalisation programs must be established and framed by the different political, cultural, and social circumstances of individual nations. What works in Malaysia will not necessarily work in India or New Zealand, or Saudi Arabia for that matter. Because of this, a one-size-fits-all approach to de-radicalisation is impractical, hence why multilateral efforts have focused more on guiding principles rooted in respect for human rights, the rule of law, and humane treatment of extremists in detention. For Malaysia, this has meant developing a comprehensive de-radicalisation program which incorporates a number of elements listed in the Rome Memorandum, including the use of religious counsellors to help correct misinterpretations, involvement of family members, and skill training to aid reintegration back into society. However, the secrecy with which the de-radicalisation program is conducted under makes it difficult to independently verify the success rate the Government espouses; it also makes it difficult to assess whether the program complies with international law andhuman
176 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), GA Res 70/175, UN Doc A/RES/70/175 (8 January 2016). 177 ‘Background and Mission’, Global Counterterrorism Forum (Web Page, 2019) < 178 ‘Preventing and Countering Violent Extremism’ (n 170). 179 Rome Memorandum on Good Practices for Rehabilitation and Reintegration of Violent Extremist Offenders (n 153). 180 Ibid.
138 (2019) 4 Perth International Law Journal An Overview and Consideration of De-Radicalisation in Malaysia rights standards. The fields of radicalisation and de-radicalisation involve more than just psychology — they involve religion, sociology, politics, and law. To help guide future multilateral efforts, and ensure that a nation’s way of CPVE complies with human rightsand international law, further development should build upon the Nelson Mandela Rules and Rome Memorandum. Greater research should also be directed towards clarifying the different objectives and aims of de-radicalisation programs worldwide, especially on what countries hold as being successfully de-radicalised. The continued evaluation and assessment of de-radicalisation programs, both individually and comparatively, will allow for greater knowledge and insight on what strategies could or could not work. This will provide valuable lessons and assistance for national governments, along with a continual exchange of ideas and experiences at an international level, whether in informal forums or more formal settings. Malaysia has expressed an open willingness to share its ideas and experiences — an offer other nations should consider accepting.
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140 (2019) 4 Perth International Law Journal Geographical Indications Under the WTO/TRIPS Agreement GEOGRAPHICAL INDICATIONS UNDER THE WTO/ TRIPS AGREEMENT: A CRITICAL ASSESSMENT OF THE EXTENSION OF THE ADDITIONAL PROTECTION (ARTICLE 23) BEYOND WINES AND SPIRITS
CARLA SANGIOVANNI*
ABSTRACT The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) provides in Article 22 a standard level of protection for Geographical Indication (GI) applicable to all products, while Article 23 provides an enhanced level of protection for GI for wines and spirits. This paper analyses the ongoing discussion within the World Trade Organization (WTO) regarding the extension of GI to products other than wines and spirits. The debate over this issue has polarised between US on one side and the European Union on the other side, which do not appear open to a constructive dialogue towards a consensus. The paper culminates with some observations and offers some suggestions regarding how to deal with this controversial issue.
I INTRODUCTION According to Article 22 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO), Geographical Indications (GIs) are place names used to ‘identify goods as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to its geographical origin.’1 GIs add value to the natural riches of a region or the skills of its population, giving a product a distinct identity.2 Well-known GIs include ‘Parmigiano- Reggiano’ cheese (Italy), ‘Basmati’ rice (India and Pakistan), ‘Champagne’ sparkling wine (France) and ‘Hereke’ (Turkey) or ‘Bukhara (Uzbekistan) carpets.3 If properly used and well protected by domestic laws that assure the quality control of the local
1 *Carla Sangiovanni holds a Master of International Law degree from the University of Queensland (Australia), and a Bachelor of Law degree from the Federal University of Bahia (Brazil). Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex IC (‘Agreement on Trade-Related Aspects of Intellectual Property Rights’), Article 22, (‘TRIPS Agreement’). 2 Lionel Bently and Brad Sherman, Intellectual Property Law (Oxford University Press, 3rd ed, 2008) 977. 3 Felix Addor and Alexandra Grazioli, ‘Geographical Indications beyond Wines and Spirits’ (2002) 5(6) The Journal of the World Intellectual Property 865, 866. (2019) 4 Perth International Law Journal 141 Carla Sangiovanni product, GIs can become a marketing tool of great value.4 Therefore, in a context where multinational corporations dominate the global market with their powerful brands,5 local brands that attribute to their products the features of local environmental factors are able to sustain a market share.6 Internationally, the abovementioned Article 22 of the TRIPS Agreement provides a standard level of GIs’ protection applicable to all products. Wine and spirits, however, are entitled to a higher or enhanced level of GI protection, according to the exceptions set out in Article 23.7 Meanwhile, Article 24 specifies the situations where geographical indications do not have to be protected or the protection can be limited, such as when a name has become the common term or when a term has already been registered as a trademark.8 Domestically, WTO member states are free to establish their national systems for interested parties to register and enforce GIs.9 Yet, Article 22(4) of the TRIPS Agreement still requires them to follow the general WTO rules on national treatment and non-discrimination when doing so.10 At the 2001 WTO Ministerial Conference in Doha, a coalition of WTO members11 led by the EU challenged the differential regime of GIs under the TRIPS Agreement in which higher protection is given only to wines and spirits.12 At the Fifth Ministerial Conference of Cancun (2003) this group of countries proposed that the TRIPS Agreement should extend the higher level of protection given to wines and spirits to all agricultural products, making it a global standard of protection.13 However, the request for amendments was received with hostility by countries led by the US,14 who have little to gain from these changes.15 In July 2008, another group of WTO members interested in the resolution of the conflict called for a new round of negotiation, with no positive outcome.16 Due to the polarisation and impasse among WTO members, no consensus was reached and the debate is lively within the WTO’s Doha agenda.17
4 Doris Estelle Long, ‘Branding the land: creating global meaning for local characteristics’ in Irene Calboli and Edward Lee (eds), Trademark Protection and Territoriality Challenges in a Global Economy (Edward Elgar Publishing, 2014) 103. 5 Ibid 100. 6 Ibid 102. 7 World Trade Organization, ‘Background and the current situation’, TRIPS: Geographical Indications (Web Page, November 2008)
II GEOGRAPHICAL INDICATIONS UNDER THE TRIPS AGREEMENT GIs’ protection was subject matter in the 1883 Paris Convention for the Protection of Industrial Property,18 the 1891 Madrid Agreement for the Repression of False or Deceptive Indications19 and the 1958 Lisbon Agreement on Appellations of Origin.20 However, according to Ruth Okediji, the TRIPS Agreement is the first treaty that has formally invented GIs as a category of international intellectual property rights.21 The GIs’ inclusion into the TRIPS Agreement is considered part of the European Union (or Communities at that time)’s strategy to protect the symbols of their agricultural producers from increasing US consumerism and mass marketing.22 On the other side, the US posed strong resistance to the inclusion of geographical indications. In this context, the tension between the two most powerful WTO members had led to the adoption of a dual scheme where only wines and spirits received enhanced protection.23 Article 22 of the TRIPS Agreement defines geographical indication and sets standard protection applicable to all products, including agricultural products or foodstuff. 24 The TRIPS Agreement imposes duties on all WTO members, including that member states shall provide the legal means for interested parties to prevent the use of GIs by producers not located in the region designated by the particular geographical indication.25 Also, it establishes that GIs’ protection shall prevent ‘any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967)’. 26 Meanwhile, Article 23 of the TRIPS Agreement provides enhanced protection exclusively to wines and spirits.27 WTO members shall provide the legal means for interested parties to prevent the use of a geographical indication identifying wines and
18 Paris Convention for the Protection of Industrial Property, opened for signature 20 March 1883, 161 ConTS 409 (entered into force 7 July 1884) art 1(2), revised at Stockholm 14 July 1967, 21 UST 1583, 828 UNTS 305, amended 28 September 1979. 19 Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods, opened for signature 14 April 1891, as revised at Lisbon 31 October 1958, 828 UNTS 165. 20 Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration, opened for signature 31 October 1958, as revised at Stockholm 14 July 1967, 923 UNTS 197. 21 Ruth L Okediji, ‘The International Intellectual Property Roots of Geographical Indications’ (2007) 82(3) Chicago-Kent Law Review 1329, 1354. 22 Ibid 1348. 23 Ibid 1350. 24 Bently and Sherman (n 2) 980. 25 TRIPS Agreement (n 1) art 22(2)a. 26 TRIPS Agreement (n 1) art 22(2)b. 27 Bently and Sherman (n 2) 980. (2019) 4 Perth International Law Journal 143 Carla Sangiovanni spirits not originating in the place indicated by the geographical indication,28 or even if it shows the exact origin of a good but includes a GI with the qualification ‘kind’, ‘style’, ‘imitation’ or ‘the like’.29 Additionally, it allows Members ex officio or at the request of an interested party to refuse or invalidate the registration of a trademark for wines or spirits that contains or consists of a geographical indication identifying wines or spirits.30 With this higher protection, a producer is prohibited from labelling a product as ‘sparkling wine in the style of champagne, produced in Chile’ or ‘Napa Valley Wine of France’, for instance. Conversely, following the standard protection, other products beyond wine and spirits can receive designations such as ‘Roquefort cheese, produced in Norway’ or ‘Bukhara carpets, made in the US’31 Raustiala and Munzerr describe GIs as intellectual property rights that attach to particular goods made by producers from a specific region.32 According to the authors, GIs transmit the idea that certain product qualities cannot be replicated elsewhere because there is an essential link between the area and the product (climate, geography, natural features of a location).33 Notably, the geographical indication is generally registered by a group of producers of the relevant product in a particular area rather than by a single holder of a private business.34 GIs apply to a specific region or locality within a given state and they are used as a consumer signal that the exceptional quality of the products is attributable to their place of origin.35 Therefore, producers outside this area could not be allowed to use its place name in marketing and on labels of their products.36 With these basic concepts in mind, some countries have been arguing that GIs have been illegitimately used by producers and manufacturers who are outside the designated region. They argue that this situation can cause considerable loss of reputation and long- term income for producers and manufacturers within their territories.37 Therefore, the extension of the GIs’ protection raises the interest of several developed and developing members of the WTO, because of the importance of the remunerative marketing of their agricultural, handicraft and artisan production.38 These countries, convinced of the economic benefit and great trade potential of GIs, are actively working within the WTO to extend the existing enhanced protection set out in Article 23 of the TRIPS Agreement to all products, not only to wine and spirits. 39
28 James Otieno-Odek, ‘The Way Ahead – What future for Geographical Indications?’ (Conference Paper, Worldwide Symposium on Gerographical Indication, 27 June 2005) 5. 29 Raustiala and Munzerr (n 9) 343. 30 Otieno-Odek (n 28) 5. 31 Bently and Sherman (n 2) 879. 32 Raustiala and Munzerr (n 9) 341. 33 Raustiala and Munzerr (n 9) 338. 34 Long (n 4) 109. 35 Dev Gangjee, ‘Quibbling Siblings: Conflicts between Trademarks and Geographical Indications’ (2007) 82(3) Chicago-Kent Law Review 1253, 1255. 36 Raustiala and Munzerr (n 9) 338. 37 Addor and Grazioli (n 3) 866. 38 Ibid. 39 Blakeney (n 12) 32 [2.87]. 144 (2019) 4 Perth International Law Journal Geographical Indications Under the WTO/TRIPS Agreement III THE BENEFITS OF ENHANCED PROTECTION FOR ALL PRODUCTS In the aftermath of the Second World War, there was an increase in global trade of GI-related products. Several factors prompted this growth such as the improvement of technologies, the drop in costs of long-distance transportation and international trade agreements that lowered tariffs. Additionally, there was an increased economic demand on the part of consumers in wealthy countries for GI-marked products.40 These factors have led to a higher transnational flow of goods and created global markets in a borderless environment. In this scenario, traditional artisanal products started to compete more directly with newer variants in other countries (champagne and Australian sparkling wines; Roquefort and Iowa blue cheese; and Russian caviar and California paddlefish roe).41 With a long and rich agricultural tradition, the EU established in 1992 a community- wide registration scheme for the Member States through the Council Regulation (EEC) nº2081/92 of 14 July 1992, later amended by the GI Regulation (510/2006).42 This GI Regulation allows EU Member States to register GIs for agricultural foodstuffs when there is an essential link between the quality, reputation, or other characteristics attributable to a particular geographical origin and product.43 Also, the producer needs to demonstrate that the production, processing, or preparation of the good takes place in that specific geographic area (a region, a particular place, or, exceptionally, a country).44 These EU laws regulate geographical denominations for a range of agricultural foodstuffs including meat, cheese, bread and olives.45 However, this level of enhanced protection offered by EU laws is still not granted worldwide. For this reason, the European Union has been at the forefront of the WTO Trade Negotiations Committee to discuss the extension of the GI protection, together with Albania, China, Croatia, Georgia, Guinea, Jamaica, Kenya, Liechtenstein, Madagascar, Sri Lanka, Thailand, Turkey, and Switzerland.46 They claim that there are no commercial, economic, or legal reasons to provide a higher level of protection for wines and spirits.47 Therefore, the enhanced protection should be extended to all products.48 When these WTO members called for the extension of the protection, they suggested that Article 23 of the TRIPS Agreement should be extended to all products by simply eliminating the reference to ‘wines and spirits’ in this provision.49 They claim that products such beer, tea, rice, or cheese, as well as manufacturers of certain ceramics,
40 Raustiala and Munzerr (n 9) 348. 41 Ibid. 42 Council Regulation (EEC) nº2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural foodstuffs [1992] OJ L 208/1 later amended by the GI Regulation (510/2006). 43 Michael Handler, ‘The EU’s geographical indication agenda and its potential impact on Australia’ (2004) 15 Australian Intellectual Property Journal 173, 175. 44 Bently and Sherman (n 2) 982. 45 Handler (n 43) 176. 46 Draft Decision to Amend Section 3 of Part II of the TRIPS Agreement, WTO Docs TN/C/W60 (19 April 2011) (Draft Decision). 47 Otieno-Odek (n 28) 3. 48 Issues Related to the Extension of the Protection of Geographical Indications Provided for in Article 23 of the Trips Agreement to Products other than Wines and Spirits, WTO Docs WT/GC/W/546 and TN/C/W/25 (18 May 2005)(Report by the Director-General) 9. 49 Addor and Grazioli (n 3) 891. (2019) 4 Perth International Law Journal 145 Carla Sangiovanni glass, watches, and textiles have a legitimate interest in obtaining the same level of protection as wines and spirits.50 Thus, the draft of the extension in this article has been presented to the WTO as such:51 Article 23 - Additional Protection for Geographical Indications for Wines and Spirits Each Member shall provide the legal means for interested parties to prevent use of a geographical indication for goods which are identified by the geographical indication, if such goods do not originate identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like. These countries argue that the different minimum standards represented a political compromise among member states at the time of the Uruguay Round. During that round of negotiations, the EU accepted a general unfair competition standard for GIs while the US (in exchange for securing European support in other areas such as trade in agriculture) acceded to the EU demands for enhanced protection for wine and spirits.52 However, this coalition now claims that there was no legal justification for the dual level of protection between wines and spirits and other products. GIs are IP rights as much as trademarks, designs or patents, which do not discriminate among categories of products in providing effective protection. Additionally, they claim that the review of Article 23 of the TRIPS is part of the WTO’s Doha agenda.53 Supporters of the extension also argue that an enhanced level of GI protection for all products is a way to improve the marketing of their products by distinguishing them more effectively from their competitors.54 They claim that other countries are exploiting their product names and the low protection offered by Article 22 of theTRIPS Agreement decreases the value of GIs. 55 This article has been seen as insufficient for stopping existing GIs from becoming generic terms.56 This low protection makes GI products lose their economic value and discourages higher quality and niche products from being put on the global market.57 Such law is also seen as detrimental, not only to producers and manufacturers in all countries but also to consumers who are often misled with unclear labels that mistakenly identify a traditional quality of certain products. 58 The advocates of the extension explain that the standard protection does not offer the apparatus against producers who wrongfully use a GI to exploit the reputation of the geographic origin of a product.59 As a consequence, producers lose their investment into
50 Addor and Grazioli (n 3) 884. 51 World Trade Organization (n 46) (emphasis and strikethrough in original). 52 Handler (n 43) 182. 53 Handler (n 43) 184. 54 World Trade Organization (n 7). 55 Addor and Grazioli (n 3) 866. 56 Handler (n 43) 189. 57 Addor and Grazioli (n 3) 866. 58 Ibid. 59 Addor and Grazioli (n 3) 881. 146 (2019) 4 Perth International Law Journal Geographical Indications Under the WTO/TRIPS Agreement developing and promoting the products identified by the GI. Likewise, consumers are misled into thinking they are buying products from a certain area with particular features but they are instead buying an imitation.60 Due to the weak protection, the ability to develop a strong competitive market based on GI remains limited.61 According to proponent countries, a general protection cannot be invoked unless the public is being misled by the illegitimate use of the GI or if the use of the GI constitutes an act of unfair competition. Therefore, to avoid misleading the consumer and breaching the law, the competitors from outside the region identified by the GI can usurp the reputation of a GI by simply adding an indication of the true origin of the product, for example, ‘Murano glass made in Turkey’ rather than Italy. Certainly, the competitor will divert a considerable share of the market away from legitimate producers and manufacturers. Consequently, a GI risks becoming a generic name, freely used by anyone, as presently occurs with Bermuda shorts or frankfurter sausages for instance.62 Finally, under Article 22(2)(a) of the TRIPS Agreement, in cases of litigation within a domestic court of a WTO member, the legitimate producer needs not only prove the illegitimate use of the GI but also that such use misleads the public or constitutes an act of unfair competition within the terms of Article 10bis of the Paris Convention (1967). Addor and Grazioli explain that the proof required by Article 22 allows wide judicial discretion, particularly regarding the demonstration that the public has been misled. This situation leads to inconsistent decisions, as consumer perception changes from country to country and so too the perspective of national courts. These facts, coupled with the time-consuming nature and high costs of litigation based on Article 22, prevent legitimate producers from pursuing competitors.63 Ultimately, these impediments and legal uncertainty make those legitimate producers hesitant to make investments and export their legitimate products.64 In this context, producers of wines and spirits receive not only with the standard protection set in Article 22 but also the higher protection set in Article 23 of the TRIPS Agreement. The latter is considered more effective protection because it prevents the illegitimate use of a GI to identify a product in the same category, regardless of whether the public is being misled or whether there is an act of unfair competition.65 To prove the illegitimate use, the producers of wines and spirits must only prove that the GI has been used on a product not originated in the geographic area identified by its indication.66 A classic example is the term ‘tequila’ that is used for spirits produced in Venezuela, rather than Mexico.67 Meanwhile, all other producers will have to pursue the proof of the subjective element, as mentioned, and might present considerable variations according to the perception of consumers and national courts. Therefore, the extended protection to all products would secure the rights of legitimate producers against the commercial activities of rivals located outside the designated geographic area. Thus, it guarantees market shares for products that have
60 Handler (n 43) 189. 61 Long (n 4) 112. 62 Addor and Grazioli (n 3) 881. 63 Ibid 882. 64 Ibid. 65 Long (n 4) 111. 66 Long (n 4) 111. 67 Addor and Grazioli (n 3) 882. (2019) 4 Perth International Law Journal 147 Carla Sangiovanni the sole right to be identified by the GI.68 They would enjoy protection against piracy and unfair competition and, consequently, be encouraged to invest in the production of quality local products.69 Advocates of the enhanced protection claim that advances in this area would benefit not only the EU but also developing countries dependent on primary commodity exports.70 In African countries, for example, African producers would be able to unlock the value of their products by promoting their origins. Some regional products would benefit from the enhanced protection and would be better preserved at an international level, including Mt. Kenya coffee and Gathuthi tea (Kenya), Kilimanjaro coffee and Gabon sweet potato (Tanzania), and Mananara vanilla (Madagascar).71
IV ASSESSING NEGATIVE IMPACTS OF THE EXTENDED PROTECTION The main opponents of the enhanced protection to all products are Argentina, Australia, Canada, Chile, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, New Zealand, Panama, Paraguay, the Philippines, Chinese Taipei, and the US.72 Initially, they argue that absolute protection was a result of the historical situation and specific circumstances of the wine sector at the time ofthe Uruguay Round. If a different level of protection is a problem, then the proponent countries should negotiate the removal of extended protection in Art 23, rather than an extension to other products.73 In short, this coalition of WTO members claims that the proposal to extend the protection has not addressed the extra costs and burdens in terms of administration costs, trade implications for producers, and potential confusion for consumers.74 Also, they argue that the standard level of protection is adequate and extended protection would disrupt legitimate marketing practices.75 Further, they explain that the extension involves substantial alteration of trademark and unfair competition laws as well as greater policing of the labelling of all goods. These convey a substantial impact for developing countries.76 Opponents of the extension argue that the enhanced protection to all products could result in a concentration of market power and anti-competitive practices to the detriment of consumers who would be required to pay higher prices. It would not be necessary for GI producers to increase quality (because there is no competition) and consumers would have diminished choices in term of quality, prices, and process of similar products.77 Additionally, according to Handler, extended protection does not acknowledge the fact that there may be countervailing reasons for not affording absolute protection over the use of GIs.78
68 Addor and Grazioli (n 3) 883. 69 Bently and Sherman (n 2) 982. 70 Addor and Grazioli (n 3) 886. 71 Otieno-Odek (n 28) 4. 72 World Trade Organization (n 7). 73 World Trade Organization (n 46) 9. 74 Blakeney (n 12) 33 [2.89]. 75 World Trade Organization (n 7). 76 Handler (n 43) 191. 77 World Trade Organization (n 48) 62. 78 Handler (n 43) 192. 148 (2019) 4 Perth International Law Journal Geographical Indications Under the WTO/TRIPS Agreement Some terms that identify GIs in certain parts of the world are understood differently. For example, in Australia, ‘Greek yoghurt’, ‘Danish salami’, or ‘parmesan cheese’ describe certain product varieties but the geographical component of these terms does not convey to consumers a specific area where the product was made, but, rather, to the type or ingredient of the food. 79 Therefore, due to the subjectivity and cultural contingency of language, absolute protection over GIs’ use would lead to the disappearance of certain product names and even more consumers’ confusion. Using the example of parmesan, producers would have to create new names for their cheeses and educate the consumer to identify them as ‘Italian hard cheese’.80 When dealing with this argument, advocates of the enhanced protection to all products argue it would benefit consumers, who have the right of information.81Ultimately, consumers would not confuse goods from a specific origin with those illegitimately labelled by producers outside this area.82 In other words, once consumers have access to accurate and precise information about the origin of the product, the initial confusion would reduce. Producers of GIs goods would have more mechanisms to prevent the irregular use of the indication and consumers would learn to associate some products only with specific producers from certain areas.83 When it comes to the effects of extension on producers, the opponents of the enhanced protection say that not all GI owners worldwide would gain from the extended protection. In the same area of the GI, it constitutes a new barrier to compositional and processing innovation because even producers offering cost or nutritional advantages would be prevented from using the benefits of the special registration.84 They argue that the EU would benefit the most as its countries have monopolies over a considerable number of goods’ descriptions that could not be used by the rival traders. 85 Also, many EU GI owners are already well-known and well-regarded in many foreign markets. This does not occur among many other GI owners, especially those in developing countries. 86 Opponents argue that such a scenario would be a type of non-tariff barrier to trade because GI owners with an unestablished global reputation would have to make significant investments for their GIs to become marks of commercial value on the foreign market.87 On the other hand, supporters of the enhanced protection claim that it would indeed benefit producers and trade worldwide. Initially, extended protection would foster the development of local communities and promote fair global trade by rewarding the reputation and investment of those producing goods with specific characteristics from a certain geographic localisation.88 Additionally, it would restrict trade in imitation goods that illegitimately enjoy such reputation and investment. Last, GI owners would obtain greater access to foreign markets, especially in those where rival traders are
79 Ibid. 80 Ibid. 81 Blakeney (n 12) 46 [2.141]. 82 Bently and Sherman (n 2) 983. 83 Handler (n 43) 192. 84 Bently and Sherman (n 2) 984. 85 Handler (n 43) 193. 86 Ibid. 87 World Trade Organization (n 48) 45. 88 Ibid 44. (2019) 4 Perth International Law Journal 149 Carla Sangiovanni currently enjoying the illegitimate GIs.89 This last argument raises special concerns among the opponents because it has the potential impact on producers of foodstuffs and consequently, on foreign market access and international trade.90 Further, opponents say that the complexity of GIs’ protection could be used by producing countries to block imports.91 In countries where the GI terms have become generic, some producers would have to re-label and re-package their products, and develop new methods of marketing to being able to trade under those product names.92 To illustrate, Australia exports ‘parmesan cheese’ to countries such as Japan and the Republic of Korea. With the extended protection, Australia would have to create alternative ways to describe their products in these markets because only certain producers from provinces of Parma, Reggio Emilia and Bologna would be able to use the geographic indication. Therefore, the extended protection is likely to act as a barrier to trade for certain Australian exporters of agricultural foodstuffs.93 Regarding the administrative and financial burden for governments to implement the extension within their internal legislation, opposition countries argue that they would have to implement a new system that protects a wide variety of products and may have to change their laws.94 Also, new statutory authorities under the Article would have to be given to agencies that currently deal with the standard GI protection, adding greater costs to the governments. Finally, they would have to amend the traditional trademark standards and legislation relating to agricultural product standards, which might be inconsistent with Article 1 of the TRIPS Agreement.95 Against those arguments, EU and other advocates contend that the extension would not require new or significative modifications of the domestic legislation because all Members are already obliged to protect GIs according to Articles 22 and 23 of the TRIPS Agreement. This, in practice, means reduced administrative costs for the expansion.96 For example, Brazil, Costa Rica, Cuba, Peru, Paraguay, India, Uruguay, and the Bangui Agreement African countries have already provided the extension in their domestic legislation, and consequently, the extra costs do not exist.97 Along the same line, they argue that the burden on governments to maintain the GI protection system already exists and more applications for GIs would enhance the revenue flows to the government.98 Finally, the countries also discuss the impact of extension on the relationship between trademarks and geographical indication. Opponents explain that under Article 16 of the TRIPS Agreement, owners of registered trademarks should be able to prevent unauthorised third parties from using identical or similar signs for identical or similar goods if such use would be confusing. This includes geographical indications set out in Article 22. For the opponents, enhanced protection of GIs would create a problem for trademarks because trademark owners would have to cease using their trademarks or
89 Long (n 4) 122. 90 Handler (n 43) 190. 91 Otieno-Odek (n 28) 6. 92 World Trade Organization (n 48) 47. 93 Handler (n 43) 194. 94 World Trade Organization (n 48) 66. 95 World Trade Organization (n 48) 65 96 Handler (n 43) 191. 97 World Trade Organization (n 48) 65. 98 World Trade Organization (n 48) 67. 150 (2019) 4 Perth International Law Journal Geographical Indications Under the WTO/TRIPS Agreement be unable to prevent manufacturers from using similar terms that confuse or mislead the customer.99 For example, in Mexico, the term ‘Parma’ has been used as a trademark and leading brand for sausages and ham for decades. If the designation can no longer be used because of the GI of Italian manufacturers producing prosciutto, this trademark can no longer be used, will eventually be cancelled and respective priorities will be lost.100 Opponents further argue that the trademark owner could have the trademark application refused if it coincides with a place name somewhere in the world, even in cases where such a name does not qualify as a geographical indication set out in Article 22 of the TRIPS Agreement.101 However, supporters maintain that the extension would facilitate the examination of trademarks by the respective administrative authorities when deciding whether to refuse or invalidate the registration of a trademark for products not originating in the indicated region. Also, trademark holders or applicants would have a clear vision of whether a trademark containing a geographical indication could be used or not. Additionally, supporters say that prior trademarks would continue to benefit from the exception in Article 24.5 of theTRIPS Agreement. As a matter of fact, amongst the supporters, no GI had been used as the basis for the removal of a trademark. However, they were open to exceptions adjusting the entry into force of the extended protection if necessary (e.g. explicitly provide an exception for trademarks applied for and registered in good faith for products covered by the extended protection).102 Opponents of the extension claim that with extended protection, the continuation of the production by immigrants and their successors who use skills which they had brought from their home countries would no longer be possible.103 However, the argument has been defeated by a favourable solution for immigrants that was found during the negotiation of additional protection for wines and spirits. Article 24.4 of the TRIPS Agreement safeguards the rights of wine and spirits producers who have had a long tradition in using a particular GI ‘in a continuous manner with regard to the same or related goods or services in the territory of that Member for at least 10 years preceding the TRIPS Agreement signature or in good faith preceding that date’.104 The provision, also known as a grandfathering exception, would be extended to all products, allowing the preservation of the cultural identity of those who have migrated and taken with them traditions of their places of origin.105 Notably, a distinction must be made between rivals located outside the designated geographic area and immigrants that have continued to make the same products. The latter use the same names to identify those products in other parts of the world, but they have been using them in good faith.106
V OBSERVATIONS AND CONCLUSION The ongoing debate within the WTO regarding the extension of the protection set
99 World Trade Organization (n 48) 55. 100 Burkhart Goebel, ‘Geographical Indications and Trademarks – The Road from Doha’ (2003) 93(4) Trademark Reporter 964, 991. 101 Ibid 992. 102 World Trade Organization (n 48) 54. 103 Addor and Grazioli (n 3) 885. 104 TRIPS Agreement (n 1) art 24(4). 105 World Trade Organization (n 48) 9. 106 (2019) 4 Perth International Law Journal 151 Carla Sangiovanni out in Article 23 of the TRIPS Agreement for wine and spirits to all products divides the WTO members into two major groups. The supporters of the extension, led by the EU, do not intend to create a new level of protection, but to equalise the enhanced protection currently given to wine and spirits to all products. Meanwhile, opponents led by the US argue in favour of the maintenance of the dual level of protection or even the reduction of the enhanced protection for wine and spirits. From the research, it appears that the EU seeks to transform the standard set within the EU Regulation into a global standard. On the other hand, the US centred the debate on the lack of meaningful return and the high costs such an extension would bring to WTO members. Thus, the EU and US sustain the polarisation and do not appear open to achieving an equilibrium regarding GIs within the TRIPS Agreement. However, beyond the tension between the two central forces, it is necessary to hear the voices of the other WTO members and how the enhanced protection to all products beyond wine and spirits would benefit or harm them. On the one side, opposition countries argue that the extension would involve an extra cost for their governments (burden of implementation), producers (trade and production interruption) and consumers (confusion regarding origin and label of the product). Also, they fear GI protection could be used by producing countries to block imports or as a barrier to trade (i.e. close markets or impact the production of certain products). Further, they argue that it would harm the rights of migrants who in good faith continue to produce and identify the same products as they do in their countries of origin. On the other side, supporters of the enhanced protection beyond wines and spirits argue that the differential approach has no basis in legal reason. Products such as beer, tea, rice, or cheese, as well as manufacturers of certain ceramics, glass, watches, and textiles have legitimate interest in obtaining the same level of protection as wines and spirits. In short, local brands would benefit from this legal instrument for the protection of their traditional products linked to a specific geographic region. Additionally, improved protection would prevent the exploitation of a GI reputation and would protect producers from piracy and unfair competition. Finally, it would ensure better market access by creating a niche for GI products in the global market. Also, it would correctly inform consumers of the quality and origin of the product. The doctrinal analysis of the topic shows that the GI has proven to be a relevant intellectual property right in this scenario of international trade without barriers. Therefore, in a world of mass consumption dominated by powerful global trademarks, GI has appeared as an IP right that offers protection for tradition and locality. In other words, GI is a tool that protects brands that honour the local environment and traditions where the goods are produced. Moreover, the dual level of protection does not find a legal explanation that justifies its maintenance. Thus, the TRIPS Agreement should be amended to provide the same level of enhanced protection to all products, not only wines and spirits. Despite the existence of negative effects of this extension of the high protection beyond wines and spirits, the research shows that the costs (for government, producers and consumers) can be managed by WTO members, as they have the tools and legal mechanisms for changing the domestic laws, supporting producers and informing consumers. However, it appears that the extension must be set in a manner that does not violate the IP rights of previous trademarks owners or the continuation of the production
152 (2019) 4 Perth International Law Journal Geographical Indications Under the WTO/TRIPS Agreement by immigrants. Therefore, Article 24(5) will need to be amended to explicitly provide an exception to prior trademarks registered. Also, Article 24(4), known as a grandfathering exception, shall need to be extended to all products, allowing the preservation of the cultural identity of those who have migrated and taken with them traditions of their places of origin.
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154 (2019) 4 Perth International Law Journal A Spying Scandal and a Border Dispute: Timor Leste and Australia
A SPYING SCANDAL AND A BORDER DISPUTE: TIMOR- LESTE AND AUSTRALIA SAMARA CASSAR1♣
I INTRODUCTION The delimitation of the maritime boundary between Australia and the Democratic Republic of Timor-Leste (‘Timor-Leste’) has become quite complex and has caused significant tension between the two States. Boundary disputes are often fraught with complexity and especially so where there are large deposits of oil and gas at issue, which is the case here. Indeed, at the Third United Nations Conference on the Law of the Sea maritime boundary delimitation between coastal states ranked amongst the most difficult and contentious issues. The difficulties experienced by Timor-Leste to evolve from a Portuguese colony into an independent nation State have been considerable and the settlement of this maritime boundary has only been further complicated by the Australian government’s conduct. This article summarises the steps that have been involved to reach the present situation. It is structured to deal with the various issues chronologically by setting out the colonisation by Portugal, the annexation by Indonesia and the eventual independence of Timor-Leste. It then deals with the lengthy negotiations and agreements between the two countries and concludes by describing the current situation and the pending prosecution of the people who revealed the Australian government’s misconduct. The article only gives an overview of the steps in how the maritime boundary and the sharing of the oil and gas deposits have been agreed between Australia and Timor-Leste in the Timor Sea. Much detail has been omitted because of time and space limitations.
(continued overleaf)
1 ♣ LLB (Hons) and BA Law student at the University of Queensland, Australia. I am indebted to Dr Michael White OAM QC for his mentorship and editorial assistance.
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II PORTUGUESE TIMOR COLONISATION
Figure 1: Map of Timor-Leste including islands of Atauro and Jaco, and exclave Oecussi Ambeno. Solid line demarcates the country’s Exclusive Economic Zone.2 Timor-Leste consists of the eastern half of the island of Timor, along with Atauro and Jaco Islands and the enclave of Oecussi in West Timor. The Island is situated 600 kilometres off the north-west coast of Australia. The eastern part of the island of Timor was colonised by Portugal around 1515, while the western part of the island was occupied by the Netherlands. In 1893, a treaty between Portugal and Holland established the borders between West and East Timor.3 There were numerous primary commodities exploited by both the Portuguese and Indonesia during their colonial rule in Timor-Leste. In Colonial times, life was hard for the national people as military control in Portuguese Timor saw the imposition of forced labour regimes and the confiscation of land from indigenous Timorese.4 The cultivation of primary commodities, mainly coffee and sandalwood,5 were part of the greater subordination to the imperial regime.6 Shepherd and McWilliam explain how Portuguese authorities characterised the Timorese as ‘indolent native peoples’ whose flawed native character could only be rectified through the ‘civilising benefits of forced labour’.7 The more modern Portuguese colony in the
2 Dirk Zeller and Sarah Harper (eds) Fisheries Catch Reconstructions: Islands (University of British Colombia, 5th ed, 2009) 39. 3 Paul Elliott, ‘The East Timor Dispute’ (1978) 27 The International Comparative Law Quarterly 238. 4 Clive Schofield, ‘A ‘Fair Go’ for East Timor?: Sharing the Resources of the Timor Sea’ (2005)Contemporary Southeast Asia 27(2) 257. 5 James Dunn, Timor: A People Betrayed (Jacaranda Press, 1983) 20-21. 6 Joseph Nevins, ‘Restitution over Coffee: Truth, Reconciliation, and Environmental Violence in East Timor’ (2003) Political Geography 22(1) 644, 689. 7 Christopher Shepherd and Andrew McWilliam, ‘Cultivating Plantations and Subjects in East Timor: A Genealogy’ (2013) Journal of the Humanities and Social Sciences of Southeast Asia 169(2) 330.
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1970s was described by a former Timorese leader, Jose Ramos-Horta, as a Porteguese ‘colony…only maintained as a symbol of empire’.8 On 25 April 1974, the political regine in Portugal was overthrown by a peaceful coup and later, in 1976, the new Portuguese government amended its Constitution. Article 293 recognised the right to self-determination of its colonies. In the meantime, Timor- Leste had simultaneously declared itself independent from Portugal on 28 November 1975. However, this independence was short-lived. Nine days later, on the 9 December 1975, Timor-Leste was invaded and occupied by neighbouring Indonesia.
III INDONESIAN OCCUPATION;TRANSITION TO INDEPENDENCE A Indonesian Occupation 1975-1999 On 12 December 1975 the United Nations General Assembly passed Resolution 3485 (1975) which called upon all States to ‘respect the inalienable right of the people of Portuguese Timor to self-determination, freedom and independence’ and urged the Government of Portugal to ‘find a solution by peaceful means’, to institute the ‘orderly exercise of the right of self-determination by the people of Portuguese Timor’.9 Repeated international condemnation10 between 1976 and 1982 followed, but Indonesia persistently refused to comply with both Security Council and General Assembly Resolutions.11 The following quarter of a century saw chaos, political instability, and a bloody war of resistance which resulted in the death of between 120,000 and 200,000 Timorese.12 On 2 August 1979, the Australian Council for Overseas Aid reported the misuse of aid by the Indonesian military. By April 1982 the International Red Cross Committee (ICRC) instituted an emergency food programme in Timor-Leste.13 The shooting of at least 250 pro-independence demonstrators (referred to as the Dili massacre) occured on 12 November 1991. When the Timor-Leste people’s voted for independence on 30 August 1999 the pro-integration militias, with the support of elements of the Indonesian army, inflicted violence, looting and arson on the country.
B United Nations Administration 1999-2002 The international community responded. Resolution 1246 (1999) by the Security Council authorised the establishment of the United Nations Mission in East Timor to
8 FUNU: The Unfinished Saga of East Timor (1987) page 14; Counter-Memorials of Australia, page 15 – Portugal v Australia ICJ. 9 Question of Timor, GA Res 3485 (XXX), UN Doc A/10426 (12 December 1975). 10 See, eg, Question of East Timor, UN Doc A/RES/34/40; Question of East Timor, UN Doc A/RES/36/50 (24 November 1982); Question of East Timor, UN Doc A/RES/31/53 (1 December 1976); Question of East Timor, UN Doc A/RES/37/30 (23 November 1982). 11 Elliot (n 3) 240 - 241. 12 Ben Kiernan, ‘The Demography of Genocide in Southeast Asia: The death tolls in Cambodia, 1975-79, and East Timor, 1975-80 (2003) 34(4) Critical Asian Studies 585 – 597. 13 Michael Kelly, Timothy McCormack, Paul Muggleton and Bruce Oswald, ‘Legal Aspects of Australia’s Involvement in the International Force for East Timor’ International Committee of the Red Cross, (Blog Post, 31 March 2011)
(2019) 4 Perth International Law Journal 157 Samara Cassar restore peace and security.14 One month later the Security Council Resolution 1272 (1999) established the United Nations Transitional Administration in East Timor (UNTAET) as a multidimensional peacekeeping operation for the administration of Timor-Leste during its transition to independence. Resolution 1972 instructed UNTAET to provide security and maintain law and order, to ensure the coordination and delivery of humanitarian assistance and to support capacity-building for self-governance.15 In October 1999 the UNTAET multinational force took over the military peacekeeping and administrative roles for Timor-Leste. They set about establishing systems of administration and governance and rebuilding the physical infrastructure of the country. The Australian Defence Force formed the largest part of the military aspect, and indeed constituted the largest overseas deployment of Australian forces since the Vietnam War.16 UNTAET concluded its administraton in 2002 when its functions passed to the independent Timor-Leste government.
IV AUSTRALIAN AND INDONESIAN MARITIME BOUNDARY A Introduction Turning now to maritime boundaries. The story starts with the Australian boundary with Indonesia. The Australian and Indonesian governments negotiated their maritime boundary over many years, reaching an alleged conclusion in 1972. However, a gap was left opposite the East Timor coastline because Portugal - the colonial power at the time - declined to participate in formal boundary negotiations with Australia, intending to wait until the law of the sea negotiations (which led to UNCLOS) were concluded.17 The part of the boundary that remained unresolved was called the ‘Timor Gap’.
14 SC Res 1246, UN Doc S/RES/1246 (11 June 1999). 15 SC Res 1272, UN Doc S/RES/1272 (25 October 1999). 16 Felicity Rogers, ‘The International Force in East Timor – Legal Aspects of Maritime Operations’ (2005) 28(2) UNSW Law Journal 566, 566. 17 Peter Glover, ‘The Strength of the Timor-Leste Case and Section 51 of the Constitution’ (2005) 24(3) Australian Resources and Energy Law Journal 307, 308.
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Figure 2: Maritime Boundaries in the Timor Sea18 A Timor Gap Treaty 2002 After Indonesia occupied Timor-Leste in 1975, Australia recognized the de facto situation of the Indonesian government being in control of Timor-Leste and a maritime boundary treaty was negotiated to cover the Timor Gap. This area included much oil and gas in its seabed and sub-soil. In 1989 the Treaty between Australia and the Republic of Indonesia on the zone of cooperation in an area between the Indonesian province of East Timor and Northern Australia (‘Timor Gap Treaty’)19 was concluded. The Joint Petroleum Development Area (JPDA) included a Zone of Cooperation in three zones whereby the two countries agreed to different shares in royalties from the oil and gas fields after production by the oil companies had already begun. Importantly for the oil companies, they now thought that this treaty settled the Sovereign Risk issues so they could now confidently go ahead and spend huge sums of money in the development of these fields. However, this was not so. In 2002, the newly emancipated and independent Timor-Lese government wished, of course, to negotiate its own treaty.
18 Robert King, Submission No 6 to the Joint Standing Committee on Treaties on the Australia-Timor Leste Treaty Establishing Their Maritime Boundaries in the Timor Sea, 2018 (April 2018) 6. 19 Australian Treaty Series 19, online at http://www.austlii.edu.au/au/other/dfat/treaties/1991/9.html.
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B International Court of Justice Case 1995 Shortly after the Timor Gap Treaty came into force, Portugal on behalf of Timor- Leste, instituted proceedings against Australia in the International Court of Justice (ICJ)20 challenging the lawfulness of Australia entering into the Timor Gap Treaty. The ICJ declined to adjudicate the dispute on the well-settled principle that to do so would require the court to rule upon the lawfulness of Indonesia’s annexation of Timor-Leste to which Indonesia was not a party.21 Judge Skubiszewski provided a critical dissent. His Honour condemned this ruling stating that the court’s strident commitment to legal correctness and a ‘too narrow an interpretation of the principles governing competence restrains justice’.22 Critically, his Honour further held that Timor-Leste ‘has not been well served by the traditional interests and sovereignties of the strong, hence the importance of the Court’s position on the Territory and the rights of its people’.23
V AUSTRALIAN AND TIMOR-LESTE MARITIME BOUNDARY With Timor-Leste achieving independence in 2002 one of the major issues facing it was to settle its maritime boundary and the oil and gas sharing revenue with Australia. Following years of hardship and exploitation, and having no tax base to reinforce its already undeveloped economy, Timor-Leste badly needed this source of revenue. In addition, during the period between 1975 – when the Timor Gap Treaty was negotiated - and 2002 international law had changed, which complicated the matter even further.
A Change in International Maritime Boundary Law; Internal Tensions The negotiations between Australia and Indonesia had been mainly based on the issue that the natural prolongation of the continental shelf gave the coastal state (Australia) priority to a claim. This was particularly so when the adjoining country (Indonesia) had a major trench not so far offshore so that its natural prolongation ended there (the Timor Trench off Timor Island). Australia argued that delimitation should be determined on a continental shelf ‘natural prolongation’ approach,24 a principle endorsed by the ICJ in the North Sea Continental Shelf Cases.25 Indonesia argued for the median line and in the end the Australian and Indonesian negotiating teams largely settled on a boundary mid-way between the two contentions: midway between the Australian continental shelf abutting the Timor Trench and the median line between the two countries. Over the years since 1972, however, the median line approach gained ground and by the time of Timor-Leste’s independence in 2002 it held sway. This change was
20 East Timor (Portugal v Australia) (Judgement) [1995] ICJ Rep 90. 21 Ibid 101 [26]. 22 East Timor (Portugal v Australia) (Judgement) [1995] ICJ Rep 90, 237-238 [43] (Judge Skubiszewski). 23 Ibid 238 [45]. 24 Gillian Triggs and Dean Bialek, ‘The New Timor Sea Treaty and Interim Arrangements for Joint Development of Petroleum Resources of the Timor Gap’ (2002) 3 Melbourne Journal of International Law 322, 324; Schofield, n 5, 262. 25 North Sea Continental Shelf (Federal Republic of Germany v Denmark) [1969] ICJ Reports 3 [19].
160 (2019) 4 Perth International Law Journal A Spying Scandal and a Border Dispute: Timor Leste and Australia supported by Article 83 of UNCLOS and several ICJ judgments26 which explained that when determining maritime boundaries between States the median line approach should be preferred because it conforms to the equitable solution required by Article 83. This approach was substantiated at the Third Convention of the UNCLOS negotiations and delimitation provisions were codified in Article 76. However, the median line between Australia and Indonesia and also between Australia and Timor-Leste put all of the major oil and gas fields totally within those other countries’ Exclusive Economic Zones (EEZ) - which was not to Australia’s liking. Justin O’Byrne told Parliament of the importance of these oil and gas fields in that the Timor Sea was potentially one of the ‘richest hydrocarbon empires in the world’ containing ‘gas and oil in quantities that could match even the fabulous riches of the Middle East’.27 If the maritime boundary were to be drawn in accordance with the median line approach, the Greater Sunrise gas field, which has an estimated worth of at least $30 billion, would fall entirely in Timor-Leste waters.28 This situation has been corroborated by others, including Schofield,29 Rothwell,30 and Bugalski.31 Rothwell summarized the situation in that the ‘potential oil and gas reserves’ made Australia ‘reluctant to agree upon a permanent maritime boundary because of the potential loss of access to resources revenue’.32 The fact that the Australian government pressed for a continental shelf prolongation approach rather than a median line approach was seen by many Australians as selfish and short-sighted and caused a deal of internal discussion and tension. For instance, the Minister for National Development, Hon David Fairbairn, unsuccessfully argued in a November 1965 Cabinet Submission in favour of prioritising the median line approach.33 Fairbairn reasoned that ‘the time will almost certainly come when…[i]t will be possible to argue that there is a common continental shelf between Australia and Timor and that therefore the applicable international rule is the median line’.34 One may note that while this maritime dispute was occurring as between Timor- Leste and Australia, Australia successfully established a maritime boundary between
26 See, eg, North Sea Continental Shelf Case (Federal Republic of Germany/Netherlands) (Judgement) [1969] ICJ Rep 46 [83]; Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgement) [1982] ICJ Rep 78 [108]; Territorial and Maritime dispute between Nicaragua and Honduras in the Carribean Sea (Nicaragua v Honduras) (Judgement) [2007] ICJ Rep 741 [272]; Case Concerning Delimitation of the Maritime Boundary in the Gulf of Main Area (Canada v United States of America) (Judgement) [1981] ICJ Rep 261, 261 [1]-[3]; 330 [205]. 27 Kim McGrath, Crossing the Line: Australia’s Secret History in the Timor Sea (Redback Publications, 2017) 58. 28 Natalie Bugalski, ‘Beneath the Sea: Determining a Maritime Boundary between Australia and East Timor’ (2004) 29(6) Alternative Law Journal 289, 289. 29 Schofield (n 4) 255. 30 Donald Rothwell, Submission No 8 to the Joint Standing Committee on Treaties on the Australia-Timor Leste Treaty Establishing Their Maritime Boundaries in the Timor Sea, 2018 (20 April 2018). 31 Bugalski (n 28) 289. 32 Rothwell (n 30) 3 [4]. 33 Robert King, Submission No 6 to the Joint Standing Committee on Treaties on the Australia-Timor Leste Treaty Establishing Their Maritime Boundaries in the Timor Sea, 2018 (April 2018) 6. 34 Cabinet Submission No. 1165, ‘Off-Shore Petroleum’ 25 November 1965, National Archives of Australia NAA A1838/1, 752/1/23, pt. 1, 8 – 9 (emphasis added) cited in Robert King, Submission No 6 to the Joint Standing Committee on Treaties on the Australia-Timor Leste Treaty Establishing Their Maritime Boundaries in the Timor Sea, 2018 (April 2018) 6.
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New Zealand in the Tasman Sea and adjacent areas of the south-western Pacific Ocean.35 Paradoxically, in that instance Australia accepted a median line boundary. However, a clear point of difference was that there was no untapped oil or gas fields complicating the treaty arrangement.36 In short, one could surmise that Australian government’s attitude to its northern maritime boundary in the Timor Sea was driven by its wish to retain the royalties revenue from the oil and gas fields and nothing else.
B Timor Sea Treaty 2002 and Joint Petroleum Development Area By 20 May 2002, a new Treaty was renegotiated between Australia and Timor-Leste to replace the Timor Gap Treaty, called the Timor Sea Treaty between the Government of East Timor and the Government of Australia (‘Timor Sea Treaty 2002’). Under this arrangement, a Joint Petroleum Development Area was agreed which broadly shared oil and gas reserves in the JPDA and also the straddling Greater Sunrise field. This treaty was enacted into Australian domestic law in 200337 and into Timor-Leste law the following year. The treaty outlined the arrangements for a JPDA, as shown in the map, below. Under the treaty, the JPDA is jointly managed and controlled by Timor- Leste and Australia.38 Each State decided on sharing the taxing rights (royalties) on production in the JPDA with a split as to 90% to Timor-Leste and 10% to Australia.39 The regime was to last for 30 years, or until the earlier settlement of a permanent maritime boundary.40 As the large Greater Sunrise field straddled the north eastern boundary of the JPDA it was desirable to have a Unitisiation Agreement so the operators were not competing to pump the most product to their side and damaging efficient extraction from the field. This was done in Annex E, Article 9(b) of the treaty which provided: that Australia and East Timor agree to unitise the Sunrise and Troubadour deposits (collectively known as ‘Greater Sunrise’) on the basis that 20.1% of Greater Sunrise oil and gas lies within the JPDA and the balance outside it in the Australian EEZ. It followed that royalty revenues from production from Greater Sunrise would be distributed on the basis that 20.1% is attributed to the JPDA and Timor-Leste and 79.9% is attributed to Australia. In short, this 2002 Treaty was an agreed sharing of the oil and gas resources and revenues but, of course, it did not establish any permanent (or indeed equitable) maritime boundary.
35 See Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries, New Zealand-Australia, signed 25 July 2004 NZTS 1 (entered into force 25 January 2006). 36 The Hon Alexander Downer, MP Former Minister for Foreign Affairs Australia, Archived Material: Treaty between the Government of Australia and the Government of New Zealand establishing Certain Exclusive Economic Zone and Continental Shelf Boundaries (Web Page, 2004) < https://foreignminister.gov.au/releases/2004/fa112a_04_bg.html>. 37 Petroleum (Timor Sea Treaty) Act 2003 (Cth). The treaty is to be found as Timor Sea Treaty [2003] ATS 13. 38 Timor Sea Treaty, Art 3. The DFAT website is
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Figure 3: Map of Timor Sea41
C CMATS Treaty 2006 The Timor Sea Treaty 2002 between Australian and Timor-Leste dealt in the main with the JPDA area and its oil and gas deposits and the Unitisation of the extraction from the Greater Sunrise field but this still left a final agreement to be made about the Greater Sunrise field oil ands gas field itself. As mentioned, the Greater Sunrise issuewas linked to the broader debate over the appropriate positioning of the permanent maritime boundary. Ordinarily, a dispute over maritime boundaries could be compulsorily resolved by the ICJ or the International Tribunal for the Law of the Sea (ITLOS). This option became unavailable, however, because Australia suddenly withdrew its recognition of this compulsory jurisdiction for its seaboundary delimitations in March 2002, as codified in article 298 of UNCLOS. Accordingly, the permanent maritime boundary needed to be settled by negotiations. Quite naturally Timor-Leste criticised the Australian decision to withdraw from the compulsory dispute resolution mechanisms of the ICJ and ITLOS. And, it was not alone in this criticism.42 Talks between Australia and Timor-Leste over a permanent boundary were conducted in various stages for several years but no agreement was reached on this issue until 2006.43 In these negotiations, the Australian government argued for keeping the maritime boundary where it had been agreed with Indonesia.44 However, the Timor- Leste government argued for the maritime boundary to be based on the median line.45 The entire Timor Sea Treaty area and the Greater Sunrise, Buffalo, Corallina and Laminiara fields were all on the Timor-Leste side of the median line and so Timor-Leste would
41 The Australian, The 40-year battle over Timor’s Oil
(2019) 4 Perth International Law Journal 163 Samara Cassar then be entitled to exploit these resources and obtain these revenues. The uncertainty over the Greater Sunrise field and the maritime boundary more generally jeopardised the willingness of the relevant oil companies to invest the huge sums of money required to exploit the Greater Sunrise field. Woodside Petroleum was the joint venture coordinator of the grup comprised of Royal Dutch/Shell Group, ConocoPhillips and Osaka Gas Co. Understandably, all work by the Joint Venture group stopped until the two governments gave them certainty.46 Then, after extensive negotiations, on 12 January 2006 Australia and Timor-Leste agreed on the main terms for the Treaty on Certain Maritime Arrangements in the Timor Sea 200647 (CMATS 2006).48 In conjunction with the 2003 International Unitisation Agreement, the CMATS established a framework for the exploration and exploitation of the Greater Sunrise gas and oil field and extended and built on the Timor Sea Treaty 2002.49 The fundamental terms of the CMATS Treaty 2006 were: 1. the treaty would remain in force until 50 years after its entry into force (Art 12) and the Timor Sea Treaty 2002 was amended to be in force for the duration of the CMATS Treaty 2006 (Art 3); 2 the treaty was without prejudice to Timor-Leste or Australia’s rights to the future delimitation of their respective boundaries (Art 2) and there was a moratorium on claims to sovereign rights, jurisdiction or maritime boundaries for the period of the treaty (Art 4); 3 the (royalty) revenues arising from the upstream petroleum production in the Greater Sunrise field were to be shared equally (Art 5); and 6 the CMATS Treaty, Timor Sea Treaty, Sunrise International Unitisation Agreement, and any future agreement between the countries, was to determine the obligations and rights between the countries governing the exploration and exploitation of petroleum resources (Art 7).
VI AUSTRALIAN GOVERNMENT ESPIONAGE MATTERS A Permanent Court of Arbitration Proceedings 2013 to Set Aside CMATS The Timor Sea Treaty 2018 was a good step forward but one needs to step back five years in time to understand what underpinned it. On 23 April 2013 Timor- Leste had instituted proceedings in the PCA seeking to set aside the CMATS Treaty of 2006. Timor-Leste claimed that Australia’s intelligence operations during the CMATS Treaty negotiations vitiated any resulting agreement because Australia had spied on and unlawfully listened in to the Timor-Leste negotiations. Timor-Leste claimed that by this
46 Ibid. 47 [2007] ATS 12. 48 Department of Foreign Affairs, “Media Release: Australia and East Timor Sign Treaty on Maritime Arrangements in the Timor Sea” (12 January 2006). 49 In March 2006, the Australian and East Timorese governments agreed on the Petroleum Mining Code and Model Production Sharing Contract so these agreements, along with other cooperative steps, are sound steps along the road to providing companies, investors and business with some certainty of the conditions under which they could operate.
164 (2019) 4 Perth International Law Journal A Spying Scandal and a Border Dispute: Timor Leste and Australia espionage, Australia had disregarded its duty to negotiate the treaty in good faith and had obtained an unfair advantage such that the resulting CMATS Treaty was null and void.50 In Timor-Leste’s opening submissions the Timor-Leste’s counsel and former President of Timor-Leste, Xana Gusmao, said: we were not aware at the time (of the CMATS negotiations), that under the cover of an Australian program renovating Timor-Leste’s government offices, Australia installed listening devices to spy on the Timorese officials to maximise and advance their commercial interest [sic].51 This espionage claim was made possible after a former high-ranking Australian security agent, ‘Witness K’, revealed that he had been in the team in 2004 to place numerous listening devices in the Timor-Leste government premises, and most poigently in the room in which discussions on the boundary negotiations took place. This installation was made possible under the guise of an Australian Aid Project. The obligation to perform a treaty in good faith is codified in Article 26 of the Vienna Convention on the Law of Treaties but it is no great leap to say it would also apply to pre-treaty negotiations.
B Australian Police Raid on Timor-Leste’s Lawyers; ICJ Proceedings As if the espionage in 2004 was not bad enough, the situation was compounded on the night before the first hearing of the PCA application at the Hague. The Australian Federal Police at the behest of the Australian security agency raided the office of Timor Leste’s lawyer in Canberra, Mr Bernard Collaery. They seized documents, including privileged internal legal advice for Timor-Leste and cancelled the passport for Witness K so he could not give evidence at the hearing in the Hague.52 Needless to say the government using its police to raid the lawyers acting for the other country in an international dispute and cancelling the passport of a witness was regarded as outrageous amongst many of the informed community in Australia.53 The Australian government defended its action on national security grounds and relied on the Australian Federal Police Act 1979 (Cth) to excuse its conduct. The Australian Attorney-General released a statement that the Australian officials executed the search warrants, seizing ‘documents and electronic media’ on ‘the grounds that the documents contained intelligence related to security matters’. Mr Bernard Collaery reported, however, that the security agents provided no search warrant. Timor-Leste demanded the return of their documents but the Australian Government
50 Arbitration under the Timor Sea Treaty (Timor-Leste v Australia) (Procedural Order No 1) (Permanent Court of Arbitration, Case No 2013-16, 6 December 2013) 1. 51 Conciliation between The Democratic Republic of Timor-Leste and The Commonwealth of Australia (Presentation for Timor-Leste’s Opening Statement) (Permanent Court of Arbitration, 29 August 2016) 18-19. 52 ‘Verbatim Record’, Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Provisional Measures), International Court of Justice, General List No 156, 20 January 2014, 18; Timor-Leste v Australia Conciliation (Opening Session Transcript) (Permanent Court of Arbitration, Case No 2016-10, 29 August 2016) 32. 53 See for example the News ‘Australia Defends Raid on E.Timor Lawyers’, online at https://news.yahoo. com/australia-defends-raids-e-timor-lawyer-whistleblower-085353793--finance.html
(2019) 4 Perth International Law Journal 165 Samara Cassar officials refused,54 so Timor-Leste commenced proceedings in the ICJ claiming, inter alia, that such conduct violated lawyer-client privilege.55 The ICJ ordered provisional relief in that ‘Australia shall not interfere in any way in communications between Timor-Leste and its legal advisers in connection with the ongoing arbitration, future negotiations or the present ICJ proceedings’.56 Australian then returned the documents and Timor-Leste terminated the ICJ case.57 Counsel for Timor-Leste had to be right when he said that this ‘handling of the Timor Sea question will colour [Australia’s] reputation for many years’.58
VII COMPULSORY CONCILIATION PROCESS IN 2016; TIMOR SEA TREATY 2018 A Compulsory Conciliation Process 2016 As mentioned above, Australia relied on Article 298 to withdraw its consent to ITLOS and ICJ jurisdiction over boundary delimitations. However, Article 298 goes on to provide that in such cases the parties are bound to accept the dispute settlement provisions set out therein. Accordingly on 11 April 2016, pursuant to Article 298(1) (a)(i) and Annex V of UNCLOS, Timor-Leste initiated compulsory conciliation proceedings against Australia in the Permanent Court of Arbitration. It seems that this was the first case of its kind under this provision. The PCA stated that ‘Article 298 embodies a compromise on dispute settlement between those States which favoured compulsory and binding settlement procedures and other States which sought to exclude even non-binding dispute settlement procedures’.59 In effect, dissimilar to an Arbitral Tribunal or Court which may respectively render an Award or an Order, the Conciliation Commission provided a non-binding alternative to resolving the dispute.60 At first instance, Australia opposed the case and submitted that such a process is beyond the jurisdiction of the Conciliation Commission. Also, the CMATS Treaty 2006 contained a provision with the practical effect of halting negotiations over a permanent maritime boundary for fifty years. At face value, Australia had a strong basis to argue that this clause prohibited Timor-Leste from instituting the conciliation proceedings before the Commission. Timor-Leste contended that the changed geo-political situation necessitated a revaluation of the maritime boundary. This was based on Article 62 of the Vienna Convention on Treaties which provides that a treaty can only be terminated or withdrawn if there is a ‘fundamental change of circumstances’ – namely, an event has occurred
54 ‘Memorial Submitted by Australia’, Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (International Court of Justice, 28 July 2014) 141. 55 Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Order of 3 March 2014) [2014] ICJ Rep 147, 148 [1]; 153 [27]. 56 Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Order of 3 March 2014) [2014] ICJ Rep 147, 557 [3]. 57 Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Order of 11 June 2015) (Discontinuance) 573-574. 58 Timor-Leste v Australia Conciliation (Opening Session Transcript) (Permanent Court of Arbitration, Case No 2016-10, 29 August 2016) 36. 59 Arbitration under the Timor Sea Treaty (Timor-Leste v Australia) (Procedural Order No 1) (Permanent Court of Arbitration, Case No 2013-16, 6 December 2013) 1, 16 [66]. 60 Ibid 6 [28].
166 (2019) 4 Perth International Law Journal A Spying Scandal and a Border Dispute: Timor Leste and Australia which was not foreseen by the parties. However, Article 62(2)(a) of the VCLT also provides: ‘A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty if the treaty establishes a boundary’ (emphasis added). One of the arguments advanced by Australia was that because States operate in a rule- based global order, the inviolability of international boundaries is paramount. Stability and certainty demand fixed and immutable Treaties. Indeed, the fundamental principle of the stability of boundaries has been codified in Article 26 of the VCLT and repeatedly emphasised by the ICJ.61 One Australian commentator said that the ‘Commission should not disregard our treaties simply because one party has changed its mind’.62 It was further pleaded that to ‘[w]alk away from our treaty commitments’63 would be contrary to a treaty’s purpose; namely, to provide a stable and certain framework for the joint- development of resources in the Timor-Sea. In the end, however, the conciliation process was vindicated in 2018 when the parties entered into the Timor Sea Treaty.
B Timor Sea Treaty 2018 The 2018 Timor Sea Treaty signed in New York between Australia and Timor-Leste on 6 March 2018 provided a pathway for the parties to agree on a final settlement of the maritime boundaries between the countries and sharing royalties over future oil and gas production. 64 However, not all issues were settled and so the saga continues. One continuing issue related to the the Greater Sunrise field which straddles the boundary in the northeast of the JPDA. The then four Greater Sunrise joint venturers all had legal interests in their Joint Venture agreement that needed to be taken into account - so Woodside, Shell, Conoco Phillips and Osaka Gas all had to be consulted. The agreement about the Greater Sunrise field required that the eastern lateral boundary be redrawn so that approximately 70% of the field is on the Timor side of the boundary. Because the oil companies will be drawing oil and gas from both sides of the common pool, a unitisation agreement also had to be negotiated. Another key issue is Indonesia’s attitude about its maritime boundary with Australia. The current maritme boundary favours Australia by extending Australia’s sovereign rights north of the median line into the Timor Sea. The boundary line to the west towards the Indian Ocean touches on the 1997 Perth Treaty governing the continental shelf and EEZ to the south of Java and further west into the Indian Ocean. Indonesia may well seek to reopen negotiations with Australia over the terms of the Perth Treaty to seek a more equitable Australian–Indonesian maritime boundary in light of Australia’s significant
61 See generally Case Concerning the Territorial Dispute (Libyan and Arab Jamhiriya/Chad) (Judgement) [1994] ICJ Rep [72]-[73]; Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep [34]. 62 Timor-Leste v Australia Conciliation (Opening Session Transcript) (Permanent Court of Arbitration, Case No 2016-10, 29 August 2016) 58. 63 Ibid 59. 64 This descriptiion of the 2018 Treaty onews much to the entry by Professor Don Rothwell ‘Australia and Timor-Leste: the 2018 Timor Sea Treaty’, Australian Strategic Policy Institute, ‘The Strategist’ online at https://www.aspistrategist.org.au/australia-timor-leste-2018-timor-sea-treaty/.
(2019) 4 Perth International Law Journal 167 Samara Cassar concessions to Timor-Leste in the Timor Sea. Yet another issue is that two connecting lateral lines to the east and west of the JPDA run north to intersect with the 1972 Australia–Indonesia maritime boundary lines. In a novel departure from traditional maritime boundary practice, the outer limits of the east and west lateral lines may be adjusted pending the outcome of future maritime boundary negotiations between Timor-Leste and Indonesia. Such an adjustment would only occur after the boundary between those two countries is finalised. As mentioned above, Timor-Leste is very keen to have the processing plant sited in its country to benefit from the extra business, to train its own workforce and to secure the general downstream benefits. The oil companies do not agree because the engineering difficulties in building a pipelone across the Timor Trench are enormous and the risks of a subsequent pipeline break and oil spill are high. The Australian government is neutral on the point. To accommodate this issue the 2018 Treaty has a flexible revenue split arrangement. In the instance that there is an onshore plant in Timor-Leste the decided ratio is 70/30 favouring Timor-Leste 70/30. The ratio is increased to 80/20 if there is an onshore plant in Australia. A floating LNG platform was very much in favour by the oil companies for a while but it seems that this option has now been abandoned.
F
Figure 4. Map of Timor Sea Treaty 2018 Area65 The Timor Sea Treaty 2018 has rightly been praised as a significant breakthrough,
65 Map of Timor Sea Treaty 2018: Lowy Institute, ‘Timor Gap’ Available at: https://www.lowyinstitute.org/ the-interpreter/timor-gap-response-senator-xenophon.
168 (2019) 4 Perth International Law Journal A Spying Scandal and a Border Dispute: Timor Leste and Australia but there are still a number of critical issues to be resolved before the Australian and Timor Leste maritime boundaries in the Timor Sea are finally settled and exploitation of the oil and gas can be commenced.
VIII AUSTRALIAN GOVERNMENT PROSECUTION OF ESPIONAGE ‘WHISTLEBLOWERS’ As mentioned above, the Australia–East Timor spying scandal began in 2004 when the Australian Secret Intelligence Service planted covert listening devices in the Timor- Leste Cabinet Office at Dili to obtain information in the negotiations with Timor-Leste over the Timor Gap. Even without this the Timor-Leste negotiations were hostile. The first Prime Minister of Timor-Leste, Mari Alkatiri, bluntly accused the Australian Government of plundering the oil and gas in the Timor Sea and the Australian Foreign Minister responded that this was not the right tactic to settle the matter. Witness K - a former senior intelligence officer who had been involved in the bugging operation - revealed in 2012 that the Australian Government had bugged Timor-Leste’s rooms during sensitive discussions and exploited this in bad faith during negotiations on the Timor Sea Treaty.66 Six years later, in 2018, the Commonwealth Director of Public Prosecutions (CDPP) instituted criminal proceedings against Witness K and the Timor-Leste lawyer Mr Bernard Collaery, alleging that they committed a criminal act when they ‘blew the whistle’ on Australia’s illegal espionage operation. The prosecution relies on section 39 of the Federal Intelligence Services Act 2001 (Cth) which criminalises the unauthorised disclosure of certain information about the Australian Secret Intelligence Service. The maximum prison term for this offence is two years. At the end of 2018 the CDPP sought from the court and obtained orders to restrict certain material in the brief of evidence being disclosed to the accused’s legal representatives and for a closed hearing at all times. Chief Magistrate Walker explained that ‘[t]he effect of [a closed court] is that the defendants and their legal representatives may not be entitled to be present during part of the hearing’67 and that this would be ‘clearly potentially prejudicial to the defendants’.68 This is problematic given that an open court is regarded as essential in the administration of justice and the defendant’s right to a fair trial. Further, this arguably contravenes the prosecution’s own CDPP Guidelines to uphold the public interest.69 On one view the government wants to understandably deter similar behaviour in the future and for it not to be publicly revealed who the parties involved in this espionage were or how they conducted it. However, there is a lot to be said for the point that the government should not impede whistleblowers who expose government misconduct.
66 See for example Andrew Greene and Lucy Sweeney, ‘‘Witness K’ and lawyer Barnard Collaery charged with breaching intelligence act over East Timor spying revelations’, ABC News (Web Page, 28 June 2018)
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On balance, since whistleblowers act as a check and balance on maintaining the rule of law in a healthy democracy, there is strength and justification to the indignation and public criticism of the Commonwealth’s conduct in the case.70 Indeed, there is a strong argument that intelligence organisations and bodies that propound to protect national security are not effective unless they themselves are law-abiding. But, legality and morality are not conterminous. The fact that these treaty negotiations involved a poor nation’s quest for justice, as against a developed state’s struggle for corporate benefit has only further fueled the public’s condemnation of the state of affairs. The circumstances surrounding the arrest, trial and punishment of Witness K raises serious questions for civil liberties and freedoms in Australia. Human Rights Watch reported that Australia’s national security laws are open to misuse and ‘shouldn’t be used to intimidate the media or those holding the government to account’.71 In its annual report, Human Rights Watch relied on several instances – including Australia’s treatment of Witness K72 – to contend that the ‘government seems intent on sending a message to officials not to share information with journalists’.73 At the time of writing – January 2020 – this matter remains unresolved, and is an ongoing criminal matter in the Australian Capital Territory Magistrate’s Court.74 Under Australia’s national security laws, likely under s 27(5) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), the court will first need to hold a special hearing to ascertain whether the information is of such significance to national security that the case ought to be heard in a closed court. Irrespective, it remains the fact that since Witness K and Bernard Collaery have been charged with conspiring to reveal classified information about the 2004 secret operation, little has been made publicly available. This further mires the incident behind a cloak of secrecy.
IX ANALYSIS OF AUSTRALIAN GOVERNMENT CONDUCT Australia has already mined three Timor Sea fields to depletion: Buffalo, Laminaria and Corallina. Timorese human rights organisation spokesman La’o Hamutuk reported that the Laminaria-Corallina area alone, located outside of the JPDA and significantly closer to Timor-Leste, has produced 203 million barrels of oil since 1999. This has reportedly earned Australia more than $US2.2 billion in revenue. Yet, ‘Timor-Leste has not received one cent’.75 And, it must be recalled that Australia was initially reluctant to engage in the compulsory conciliation process and has dragged out proceedings where it could.
70 See news reports published in The Guardian, available online at
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Hindsight suggests that the better course of action for Australia would have been to adopt a more moderate path, signing a treaty which was balanced and more equitable to Timor-Leste the first-time round. Indeed, doing so would have avoided the quagmire of events that have since followed. Supporters of Australia’s conduct would contend that Australia has provided an impressive amount of humanitarian and military support to Timor-Leste since 1999. However, this must be considered in the context of Australia’s commercial gains from the disputed areas in the Timor-Sea. For instance, it is estimated that by 2001 Australia had received $80 billion in earnings from oil and gas production in the disputed area in the Timor Sea.76 The Timor-Leste Government and civil society groups insist that the maritime boundary dispute transcended a quest only for revenue but included fairness and justice. President Gusmao insisted that the maritime dispute was a ‘matter of life or death, a question of being continually poor, continually begging, or to be self-sufficient’.77 Prime Minister Mari Alkatiri supplemented this view for justice, contending that ‘Timor-Leste does not claim these resources because we are poor. Timor-Leste claims these resources because it is our international legal right’.78 Looking at it from an international perspective, Australia’s drive to retain the major share of oil and gas reserves in the Timor Sea may have blinded it from appreciating the long-term international implications. Australia has opposed China’s expansive claims in the South China Sea to maritime territories where China lacks any foundation in international law. Like Australia, China has done so owing to its vastly greater power relative to its maritime neighbours. However, transcending the standalone question of how to carve up oil and gas reserves, China’s claims in the South and East China Seas pose a serious security threat to the broader Pacific region, including Australia. One could infer that the Australian government’s failure to historically uphold international law and the principle of good faith in international relations with Timor-Leste may well have weakened its moral standing on issues in the South China Sea. When it comes to China’s redrawing of South China Sea boundaries it is likely that Australia’s influence and capacity to rely on its commitment to a rule-based international order will be weakened by virtue of its track record of ‘playing dirty’79 with Timor-Leste. More than a year passed before the Timor Sea Treaty 2018 was ratified by both states. This delay meant that tens of millions of dollars’ worth of oil royalties continued to be paid to Australia which probably should have been shared with Timor-Leste. L’ao Hamutuk has claimed that the lost revenue would total more than $76 million by the time Australia’s Parliament sat after the 2019 federal election. This translates to an amount that ‘would have covered the health costs of the entire Timorese population’.80 The sum also equates to almost two-thirds of the $96.1 million in foreign aid Australia provided in 2017-2018.
76 Robert King (n 18) 47. 77 Bugalski (n 28) 289. 78 Mari Alkatiri, ‘Keynote Address’ (Speech, South East Asia Australia Offshore and Onshore Conference, 9 June 2004). 79 Greg Barns, ‘The Prosecution of Bernard Collaery and Witness K: International and Regional Implications’, International Law Association (Blog Post, 15 August 2018)
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X CONCLUSIONS For over 50 years the maritime boundary and the oil and gas deposits in the Timor Sea has been a core issue for the three countries involved: Australia, Indonesia and Timor-Leste. The fact that Australia and Timor-Leste have the Timor Sea Treaty 2018 has rightly been praised as a historic breakthrough. However, the long-term success of this arrangement remains uncertain. With so many issues still to be settled, there is no final resolution yet in sight. Even after the governments do finalise the maritime boundary and revenue sharing issues, there will still be no economic benefit until the oil companies are satisfied that they can safely commit billions of dollars to building infrastructure for the exploitation of the oil and gas fields. From an international law point of view, there has at least not been any militarism. While the negotiations may have lacked good faith, they have at least been peaceful. There is much to be said for the capacity for two states to set aside intractable disagreements to negotiate peacefully towards a maritime boundary. So too for following the lead of some of the South American countries by submitting maritime boundary disputes to the ICJ or ITLOS early and resolving them promptly.
172 (2019) 4 Perth International Law Journal Proceedings of the UWA International Law Society
PROCEEDINGS OF THE UNIVERSITY OF WESTERN AUSTRALIA INTERNATIONAL LAW SOCIETY
2019 Academic Year
ANNUAL GENERAL MEETING The 4th Annual General Meeting was held on 24 October 2019 at the Guild Council Meeting Room, UWA Guild, The University of Western Australia. Ian Tan, the outgoing President of the Society, presided at the meeting.
ELECTION OF EXECUTIVE OFFICE BEARERS OF THE COMMITTEE The following Members of the Society, having been nominated under Article 11 of the Society’s Constitution, were elected to the Committee for the 2020 Academic Year on 24 October 2019: President Austen Mell, BA (W. Aust) elected Senior Vice-President Chelsea Francis, BCom (W. Aust) elected Publications Vice-President Ian Tan, BA (W. Aust) elected Secretary Riley Klug elected Treasurer Roberto Vitali-Lawn elected
APPOINTMENT OF ORDINARY COMMITTEE MEMBERS The following Members of the Society were appointed to the Committee as Ordinary Committee Members on 15 April 2020 for the 2020 Academic Year: Lucas Roosendaal, DipModLang BA (W. Aust) appointed Jing Zhi Wong, BSc (W. Aust) appointed Vacant Vacant
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APPOINTMENT OF FIRST YEAR REPRESENTATIVES The following Members of the Society were appointed to the Committee as First Year Representatives on 15 April 2020 for the 2020 Academic Year: Maxwell Hinch appointed Manev Patel appointed
APPOINTMENT TO THE JOURNAL’S EDITORIAL ADVISORY BOARD Mr Wygene Chong, JD BCom (W. Aust) DELF (France) was appointed to the Perth International Law Journal’s Editorial Advisory Board on 4 August 2019. Wygene is an Honorary Research Fellow at the UWA Law School. He completed his JD in 2017 and BCom in 2014. In 2018, he was awarded the David De Barran Cullen Prize for achieving the highest mark in the World Trade Organization Law unit - a reflection of Wygene’s strong interest and passion for international law. Wygene previously served as Research Assistant to The Honourable Robert French AC, the former Chief Justice of the High Court of Australia and Chancellor of UWA, as well as Professor Natalie Skead, the Dean of the UWA Law School. He has also held various administrative and research appointments within the UWA Law School and the UWA Oceans Institute. Wygene’s papers has been published across numerous peer-reviewed journals including Polar Record (Cambridge University Press), the University of Western Australia Law Review and the Perth International Law Journal. Wygene previously served as an Editor of the UWA Law Review 2017-18. Wygene has a long association with the Society, including serving as a member of the Society’s committee and as an Editor of the Society’s blog JusT Cogens, from 2016 to 2017.
MEETINGS OF THE SOCIETY The Society met on 3 occasions during the year: (a) Special General Meeting on 19 March 2019 at the Club Collaborative Zone, UWA Guild, The University of Western Australia. (b) Ordinary General Meeting on 15 August 2019 at the Guild Council Meeting Room, UWA Guild, The University of Western Australia. (c) 4th Annual General Meeting on 24 October 2019 at the Guild Council Meeting Room, UWA Guild, The University of Western Australia.
EVENTS Four events were held during the year: (a) ILC does O-Day 2019, held on 22 February 2019 on James Oval during the University’s Orientation Day.
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(b) Members Welcome, held on 19 March 2019 at the Club Collaborative Zone, UWA Guild, The University of Western Australia. (c) Perth International Law Journal – Launch of Volume 3. This was held at the Courtyard of the UWA Law School on 7 May 2019 with light supper and drinks. This was well attended, and well received by society members, faculty members of the UWA Law School and the reading public. (d) Perth International Law Journal – Information Session. This was held at the Guild Council Meeting Room, UWA Guild, The University of Western Australia, on 1 August 2019.
LECTURES Four lectures were delivered to members and their friends: (a) Jing Zhi Wong gave a lecture on an ‘Introduction to International Law’. The lecture explored the relationship between international law and national sovereignty; international law’s influence on Australian law; the relevance of influential ‘soft’ norms (cf legal rules) as a tool for compelling obedience towards some standards of behavior; and harmonizing action and laws between states. This was held on 17 April 2019 at the Simmonds Lecture Theatre, UWA. This was followed by pizza lunch. (b) Ian Tan gave a lecture on ‘LGBT Rights In International Law’, focusing on a broad overview of LGBT rights around the world in context of international law as well as an exploration of landmark cases including Toonen v Australia and Joslin v New Zealand. This was held on 15 May 2019 at the Simmonds Lecture Theatre, UWA, and was followed by pizza lunch. (c) Lloyd Hotinski gave a lecture on ‘On Euthanasia and International Law’, focusing on the issue of Euthanasia and its relation to international law. A review of key terms and terminology associated, including ‘euthanasia’, ‘good medical practice’ and ‘palliative care’ were explored. Current legislation and proposed bills within Australia and overseas were discussed, with emphasis on human rights. This was held on 15 August 2019 at the Cheryl Praeger Lecture Room, UWA. This was followed by pizza lunch. (d) Chelsea Francis gave a lecture on ‘Religious Freedom and International Law’. In light of the Religious Freedom Discrimination Bill (Cth), the lecture explored contemporary issues of religious freedom within the sphere of international law. In particular, the lecture discussed Article 18 of the Universal Declaration of Human Rights and its wider applications in international law since 1948. This was held on 10 October 2019 at the Blakers Lecture Theatre, UWA. This was followed by pizza lunch.
IAN TAN JING ZHI WONG CHELSEA FRANCIS
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AUSTEN MELL 2019 Executive Office Bearers
DANIELLE TAN 2019 Social Media Manager
DAVID SEONG 2019 Events Manager
YIFEI LI ANTON LUKAS JESSICA BENNETT 2019 Ordinary Committee Members
ROBERTO VITALI-LAWN RILEY KLUG 2019 First Year Representatives
DELANEY BRUCE LLOYD HOTINSKI CHELSEA FRANCIS 2019 Perth International Law Journal Co-Editors
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