Monthly Archives: January 2019

A commentary on the African Court’s decision in the case APDF and IHRDA v Republic of Mali: why socio-cultural endemic factors of a society could never support arguments based on force majeure

Introduction

 

On 11 May 2018, the African Court on Human and Peoples’ Rights(ACtHPR, or ‘the Court’) has issued its judgement in the case of Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute For Human Rights and Development in Africa (IHRDA) v Republic of Mali.Mali, the respondent state, had submitted before the Court that they could not promulgate the 2009 Family Code which would have ended many discriminations between boys and girls under the age of 18 because of a ‘force majeure’, namely, ‘a mass protest movement against the Family Code [that] halted the process’. The Republic of Mali also claimed that ‘the State was faced with a huge threat of social disruption, disintegration of the nation and upsurge of violence, the consequence of which could have been detrimental to peace, harmonious living and social cohesion; that the mobilisation of religious forces attained such a level that no amount of resistance action could contain it’.[1]

This post focuses on the notion of force majeure under international law and argues that while the Court got it right in not recognising the events listed by Mali as constituting force majeure, they should have addressed the arguments based on this latter. Moreover, by definition, the notion of force majeure can never encompass socio-cultural factors that are endemic to the state and that already existed at the moment of the signature and ratification of a treaty.

 

The case

The applicants had submitted inter alia that Article 281 of the Malian law establishing the Family Code currently into force sets the minimum age for contracting marriage at eighteen for boys and sixteen for girls, while Article 6(b) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (also known as the Maputo protocol), which was ratified by Mali in 2005, sets that age at 18 for both. They further pointed out that the same law allows for special exemption for marriage as from fifteen years, with the father’s or mother’s consent for the boy, and only the father’s consent, for the girlThey also lamented that the Republic of Mali had not done enough to align itself other international treaty obligations, which included Article 1(3) of the African Charter on the Rights and Welfare of the Child,(also known as the Children’s Charter) according to which, ‘[a]ny custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the extent of such inconsistency, be discouraged’; and Article 21 of the same Charter which provides that ‘[s]tate Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular those customs and practices prejudicial to the health or life of the child; and those customs and practices discriminatory to the child on the grounds of sex or other status’ [emphasis added]. This notwithstanding the alarming data provided by the World Bank concerning child marriage (i.e., more than 59% of women between 18 and 22 got married under the age of 18),

Mali had submitted that they could not promulgate a new Family Code because of a mass protest movement and an irresistible resistance from religious forces in the country, which could justify their force majeure arguments before the Court.[2] While the Court held that Mali violated Articles 2 (2) and 6 of the Maputo Protocol, Articles 1 (3) and 21 of the Children’s Charter and Articles 5 (a), 6 and 10 of the Convention on the Elimination of all forms of Discrimination Against Women(CEDAW), they fully overlooked the argument about force majeure.

 

The reasons behind the Malian argument on force majeure

 

The arguments put forward by the respondent state could adequately be met by a typical derogation clause, such as that contained in article 15 of the European Convention of Human Rights.[3]While article 15 itself provides that this clause can only be invoked in time of war or other public emergencies threatening the life of the nation, the European Court of Human Rights has consistently recognised the existence of a wide margin of appreciation upon states. However, the Court has also held clearly that state parties do not enjoy unlimited power. In particular, the measures undertaken by the state should be strictly required by the situation and cannot be inconsistent with other obligations under international law. In the case at issue, these could for instance be those stemming from the CEDAW or the Children’s Charter.  However, the African Charter and, as a consequence, its Protocols, do not contain any clause of such a kind.  The same applies to the Children’s Charter and CEDAW. Hence, arguably, the respondent state’s attempt to rely on force majeure.

 

Force majeureunder Public International Law

 

The International Law Commission (ILC)’s 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts includes force majeure among the circumstances excluding wrongfulness. Pursuant to its article 23 (1), ‘[t]he wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible forceor of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation[emphasis added]’. In its Commentary relating to this article, the ILC states ‘[f]orce majeure differs from a situation of distress (art. 24) or necessity (art. 25) because the conduct of the State which would otherwise be internationally wrongful is involuntary or at least involves no element of free choice.’  Moreover, the ILC expressly notes that ‘[f]orce majeure does not include circumstances in which performance of an obligation has become more difficult, for example due to some political or economic crisis’.  This was also the view of the Arbitral Tribunal set up by an agreement between France and New Zealand, in the famous Rainbow Warrior case, when the Tribunal held that ‘New Zealand is right in asserting that the excuse of force majeure is not of relevance in this case because the test of its applicability is of absolute and material impossibility, and because a circumstance rendering performance more difficult or burdensome does not constitute a case of force majeure’.[4]

Coming to the case at issue, while it is evident that the mass protests and the religious forces were –by the admission of Mali- ‘socio-cultural realities’ of Mali,[5]and therefore could not be seen as an unforeseen event, theoretically they could, however, represent an ‘irresistible force’. Yet, the respondent state should have proved that the events would not make it simply difficult for the State to promulgate the law, but actually impossible. Otherwise, the lack-of-free-choice requirement provided by Article 23 of the 2001 ILC’s Draft Articles could not be met. Most importantly, the very same word ‘occurrence’ suggests that the event at stake should happen after the relevant state signs and ratifies the treaty. It is therefore quite obvious that a socio-cultural factor, such as the presence of conservative religious forces in the territory of a state, cannot trigger any argument based on force majeure. To the contrary, claiming that the decision was taken under force majeure would run counter article 26 of the Vienna Convention on the Law of the Treaties (VCLT), which reads as follows: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’.

Furthermore, article 61(1) of the VCLT provides that ‘[a] party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.’ Yet, the ILC has clarified that while force majeure applies to the single obligation arising from the treaty, supervening impossibility results in the suspension of the treaty as a whole.[6]Thus, unless Mali wanted to suspend the treaty as such, this route could not constitute an option.

 

Conclusion

 

In the case Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute For Human Rights and Development in Africa (IHRDA) v Republic of Mali, Mali had submitted before the African Court on Human and Peoples’ Rights that they could not comply with their treaty obligations because of force majeure.  In particular, Mali argued that religious forces in the country were resisting the adoption of a new Family Code that would eliminate all discrimination against girls when it came to marriage. This post has investigated the reasons why Mali might have turned into force majeure arguments and concluded that this might depend on the fact that the international instruments that were invoked by the applicants do not include any derogation clause. The Court completely overlooked the arguments based on force majeure and concluded that Mali had violated its treaty obligations arising from CEDAW, the Children’s Charter and the Maputo Protocol. However, the arguments based on force majeure could not be considered admissible, as socio-cultural ‘realities’ of a country could not be seen as unforeseen events, nor could they represent new factors ‘occurring’ after the signature and ratification of the relevant treaties.    

 

 

[1]Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute For Human Rights and Development in Africa (IHRDA) v Republic of Mali(ACtHPR, 11 May 2018), at 64.

[2]ibid.

[3]See, also, American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), art 27.

[4]Rainbow Warrior affair, UNRIAA, vol. XX (Sales No. E/F.93.V.3), p. 215 (1990), p. 253 [emphasis added].

[5]Ibid (1), at 66.

[6]ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) The Yearbook of the International Law Commission, 2001, vol. II, Part Two, as corrected, at page 71.au

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Towards a Tort of Political Negligence: Political Deceit, Political Misrepresentation and the Brexit Conundrum

Dr Hamiisi J Nsubuga

PhD (Law), LLM, PGDL, LLB. 

Lecturer in Law, Law School, Middlesex University London, UK.

 

Introduction

The tort of negligence can be defined as negligentlyor carelessly causing damage or injury to someone, who may in turn hold the perpetrator liable for such injury or damage. In 1932, the historical case of Donoghue v Stevenson[1]marked the birth of the modern tort of negligence. In this case, the House of Lords (HL) had identified that the doctrine of privity[2]in contract lawprevented Mrs Donoghue from initiating a claim against the defendant in contract, hence, the formulation of the neighbour test (discussed below) and the tort of negligence.

 

To initiate a claim for negligence, the claimant must satisfy the test that was established in Donoghue namely:

 

  1. Defendant owed victim a Duty of care
  2. Defendant breached that Duty of Care
  3. Causation – the defendant’s breach of duty of care in factor legally, caused the claimant’s damage or harm.

 

The HL established in Donoghue that some professionals or classes of peoples owe a duty of care to other people who are proximate to them or their services. For example, medical professionals owe a duty of care to their patients,[3]employers owe a duty of care to their employees, [4]manufacturers owe a duty of care to customers / consumers,[5]as well as occupiers to patrons[6]among others. This begs the question, do politicians owe a duty of care to voters or electorates?

 

This post discusses the current political debate born out of Brexit and the plethora of discontent voiced by voters.[7]It will conclude by calling for the introduction of the tort of political negligence such that politicians, like other professionals can be held liable in tort of negligence for bad faith misstatements, misrepresentation of facts or political lies they make during political campaigns that influence voters to vote in favour of their political ambitions.

 

Do Politicians Owe a Duty of Care to Voters (Society at Large)?

 

One may argue that politicians do not owe a duty of care to voters, as there’s no valid established duty of care arising out of either case law or statute. However, in Caparo v Dickman,[8]the HL established a 3 Part test that must be satisfied if a duty of care is to be established.

 

  1. Reasonable foreseeability of the damage / harm.
  2. Proximity.
  3. Fair, just & equitable to impose liability.

 

In light of the above test, three questions need answering in order to support a claim for the introduction of the tort of political negligence. In order to inform context, the “three – part test” established Caparo is applied to the ‘Brexit’ conundrum as a case study below:

 

The Brexit Conundrum: The “three – part test”

 

  1. Was it reasonably foreseeable that the statements (factual / false) from the leave campaigners would influence the voters during the Brexit campaign to vote in their favour?
  2. How close / proximate i.e., (in terms of trust / influence) were the voters and the leave campaigners?
  3. Would it be fair, just and equitable to hold the leave campaigners liable for negligently misleading / influencing the voters?

 

Reasonable Foreseeability of the Harm arising out of Negligent Statements

 

The reasonable foreseeability element(also known as the ‘neighbour’ principle’) in the tort of negligence relates to the rule that ‘you must not injure your neighbour’. But who then, in law, is my neighbour? ‘Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question’.[9]This entails ensuring that you maintain the standard of care expected of you as a ‘reasonable person’.

 

It should be noted that the standard of care in negligence cases is objective; that is, the reasonable man test first formulated in Blyth v Proprietors of the Birmingham Waterworks.[10]Therefore, the court may consider several factors, such as the magnitude of the risk or likelihood of harm.[11]On this note, the question that follows on is that: Did the leave campaigners fall below the standard of care expected of them towards their voters through false / nonfactual statements?

 

Since the referendum results were announced, followed by the triggering of Article 50 of the Treaty of the European Union by the Prime Minister that officially commenced the withdrawal proceedings of the UK from the EU, several concerns via political platforms, whistleblowing platforms,[12]among other platforms have been voiced. These relate especially to the authenticity of the literature, funding sources, advertisements and campaign manifesto used by leave campaigners.

Among those concerns was the fact that the Leave Campaigners relied more on the amount of money (i.e., £350 Million sent to Brussels on a weekly basis by the UK Government), yet actual figures were not authenticated in any certified reports.[13]From the above concerns, reasonable foreseeability of harm in the tort of negligence may be inferred. Arguably, the Leave Campaigners ought to have contemplated that false, nonfactual and uncertified statements in their campaign adverts, may be relied upon by some voters to in favour of their political opinions.

 

Proximity – Closeness between Politicians and Voters: (Trust and Influence)

 

Negligent misrepresentation is a type of misrepresentation at common law that if proven amounts to the tort of deceit. In Derry v Peek,[14]Lord Herschell established that:

 

‘Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth or (iii) recklessly, whether it be true or false.’

 

Moreover, unreasonableness provides evidence of dishonesty on the part of the maker of the false statement. In Polhill v Walter,[15]the representor knew that his statement was false but his motive in making the false statement was to benefit his principal not himself; yet, despite his intentions, he was liable in the tort of deceit.

 

In Hedley Byrne v Heller,[16]the House of Lords widened the scope of liability for negligent misrepresentation. One of the approaches to analysing this wider scope is via the concept of a ‘special relationship’ between the claimant and the defendant, which has been argued, to be the key to Hedley Byrne. This ‘special relationship’ is premised on the notion of voluntary assumption of responsibility by the defendant and foreseeable detrimental reliance by the claimant.

 

It may be argued that from this formulation in Hedley Byrne, politicians assume voluntary assumption of responsibility when they take political offices. Consequently, they are expected to discharge their duties of representing the electorates at different levels of political spectrum with honesty and fairness. This is a form of fiduciary relationship, which in turn creates an implied duty of care arising out of the ‘special relationship’ which ought to be maintained by not falling below the standard of care expected of them.

 

Due to proximity between politicians and voters, issues of trust and influence are key to persuading the electors to vote in a certain way or the other. Therefore, it may be argued that leave campaigners’ relationship (closeness) to their voters may have influenced the voters due to trust and influence underpinnings yet based on negligent, non factual statements.

 

 

 

Would it be fair, just and equitable to Impose Liability for Political negligence?

 

The role of liability in tort is either deterrent or punishment. Where liability is imposed, the main remedy is damages. However, injunctions are also remedies in tort. The argument is therefore, that where the court is satisfied that liability should be imposed for tort of political negligence / deceit, either prohibitory injunctions or mandatory injunction may be granted to the victims. Prohibitory injunctions would prevent politicians from continuing the course of their conduct of falsely misleading voters. Mandatory injunctions would require politicians to rectify the situation (perhaps by telling the voters that they were misled during campaigns). This may arguably bring fairness and justice to the voters whose decisions to vote in one way or the other were influenced by political misrepresentation of facts or misstatements.

 

Policy Considerations – Potential Floodgates Argument

 

Sometimes courts are concerned with opening the floodgates of litigation. They are reluctant to impose liability where doing so might encourage large numbers of claims on the same issue. This would ‘flood’ the courts, possibly to such an extent that the courts could not cope. In Ultramares Corporation v Touche, Niven & Co,[17]the court was of the view that “the law should avoid imposing ‘crushing liability’: …liability in an indeterminate amount for an indeterminate time to an indeterminate class.”From this point of view, it may be a concern that if courts were to impose liability in tort for political negligence / deceit, numerous claims from voters may be initiated, especially in the aftermath of Brexit.

 

Of course making it too easy to sue may make us a litigious society. However, as per the opinion in Smolden v Withworth and Nolan,[18]the benefits of imposing a duty of care for future conduct might lead to people being more careful in the future. The floodgate argument is the least morally justifiable argument under judicial policy consideration as sometimes, it constricts fundamental underpinnings of justice and fairness. Therefore, to avoid future political conundra such as Brexit, we should consider the introduction of the tort of political deceit / negligence via common law and statute to regulate politicians in our societies as they are key to the direction of societal governance and other social welfare imperatives.

[1]Donoghue v Stevenson[1932] UKHL 100.

[2]The doctrine of privity of contract is a common law principle which provides that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract.

[3]Montgomery v Lanarkshire NHS Board[2015] UKSC 11.

[4]Wilsons & Clyde Coal Co v English[1938] AC 57.

[5]Grant v Australian Knitting Mills[1936] AC 85.

[6]Glasgow Corp v Muir[1943] AC 448.

[7]For example, T. Sampson, ‘Brexit: The Economics of International Disintegration’ (2017) 31(4) Journal of Economic Perspectives, 163 – 184.

[8]Caparo v Dickman[1990] UKHL 2.

[9]Per Lord Atkin in Donoghue v Stevenson[1932] UKHL 100 at [580].

[10]Blyth v Proprietors of the Birmingham Waterworks(1856) 11 Exch 781.

[11]This test was applied in the cases of Bolton v Stone[1951] AC 850 HL and Miller v Jackson[1977] QB 966 (CA).

[12]See, for example,John Lichfield, “Boris Johnson’s £350m claim is devious and bogus” The Guardian, 18 September 2017 at  <https://www.theguardian.com/commentisfree/2017/sep/18/boris-johnson-350-million-claim-bogus-foreign-secretary> (accessed December 2018).

[13]Ibid.

[14]Derry v Peek [1889] 14 App Cas 337.

[15]Polhill v Walter [1832] 3 B & Ad 114.

[16]Hedley Byrne v Heller [1964] AC 465.

[17]Ultramares Corporation v Touche, Niven & Co, 159 F2d 169 (2 CiR 1947.

[18]Smolden v Withworth and Nolan[1997] PIQR PL133.political negligence

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