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Redefining Jus Cogens. An Insight into the International Law Commission’s Discourse on Peremptory Norms of General International Law

Ana Srovin Coralli (Master in International Law from the Graduate Institute (Geneva) and Master in Law from the Faculty of Law (Ljubljana); ana.srovin@graduateinstitute.ch) &

Christian Bukor (Master student in Law, European Faculty of Law (Nova Gorica); cbukor@gmail.com)

 

Three months have passed since the 70thannual session of the International Law Commission (ILC) came to its conclusion in August 2018.[1]Perhaps it is no exaggeration to say that jus cogens was for the majority of the members, at least with respect to the meetings which took place in Geneva, the most intriguing topic scheduled on this year’s agenda. Indeed, the third report on peremptory norms of general international law, which resulted in 13 draft conclusions,[2]not only triggered significant interest from a great majority of the ILC members, but it also stimulated a vivid and provocative discussion among them.

 

Even though nowadays a special status of jus cogens in international law is beyond dispute, many controversies and disagreements surrounding the legal consequences and effects of peremptory norms still persist. Having this in mind, it is crystal clear that the Special Rapporteur Dire Tladi has been confronted with no easy task. Precisely because of the difficulty of the subject matter, it is important to note that the ILC members generally agreed on the quality of his third report, noting that it makes an important step forward in clarifying the consequences and the effects of the highest norms in international law.[3] This post provides a summary of the ILC’s discourse on the jus cogens debate in Geneva, with a focus on the most controversial aspects of the relevant report.

 

Overview of the report and the draft conclusions

 

At the outset, it should be explained that the ILC’s topics under consideration are mainly handled by the individual Special Rapporteurs, whose duties include the preparation of reports on the assigned topics and the proposition of draft conclusions, which could then potentially serve as guidelines or articles of a treaty. The present contribution will tackle both the newly-proposed draft conclusions on the topic of jus cogens and the yearly report of the Special Rapporteur on the same topic.

 

As a preliminary remark, it should be emphasized that the ILC generally promotes the idea of relying on the1969 Vienna Convention of the Law of Treaties(VCLT) when preparing draft conclusions on the topic of jus cogens. It has been agreed among the members that this was respected by Mr. Tladi, as his report clearly takes the VCLT into account.[4]It would, however, be premature to conclude that no concern was raised by the ILC members during the debate on the subject. Recalling that the VCLT was drafted with a particular subject in mind, namely the law of treaties, some of the members warned that the Convention should be considered with caution when adopting a new set of rules on a different topic.[5] This approach seems more correct, as it stresses that international law is an evolving and flexible system, although consistency between legal documents remains crucially important in law. It is for this reason that the ILC should consider other relevant sources and take into account the development of international law over time.

 

Another issue raised during the debates was whether it is appropriate to focus on certain consequences and effects of jus cogens.[6]Specifically, some of the members were reluctant to support the explicit reference to the United Nations Security Council (SC) resolutions and certain issues concerning international criminal law.[7]Noting that such references might be selective and consequentially problematic, the majority of members refused to include it in the draft conclusions. In so doing, an opportunity was missed to explore the consequences of jus cogens more widely, including the implications of a conflict with SC resolutions, and the impact of peremptory norms in international criminal law. There is furthermore a need for an explicit stipulation affirming that any principle or rule established through any source of international law, including general principle of law, may not be valid if it is in contrast with a norm of jus cogens nature.

 

Specific issues on the table

 

The effect of jus cogens on treaty relations has been acknowledged as one of the most uncontroversial aspects of the third report.[8]In the eyes of the ILC members, the Special Rapporteur managed to prove the inherent nature and non-derogability of jus cogens norms. Therefore, all treaties must be consistent with these norms.[9]Nevertheless, the remaining matter of controversy is the general rule on the non-severability of treaty provisions, when a provision is part of a treaty which was in conflict with jus cogens at the time of its conclusion.[10]Whereas some of the members agreed on this matter, the stability of treaty relations was prioritized by others, who claimed that the general rule of severability would be preferable. By taking the latter approach, the rule of non-severability would be presented as a special rule for cases relating to article 53 of the VCLT, which would, in effect, result in the prioritization of treaty relations without departing from the VCLT.

 

Another interesting question on the recommended dispute settlement procedure in case of invalidity of a treaty because of a conflict with jus cogens was pointed out during the debates.[11]More precisely, doubt was raised as to the immediate consequences following a decision by the International Court of Justice (ICJ) or by an arbitral tribunal; would such decision lead to the invalidation or termination of a treaty, or would it be merely declaratory in nature? In the view of the majority, the treaty would, in fact, become invalid immediately.

 

Furthermore, the draft conclusion 17 explicitly states that SC resolutions do not establish any binding obligations if they violate jus cogens norms. Recalling the aim of the presented draft conclusions, which is to formulate general rules, this approach was unwelcomed by the majority of the ILC members.[12]Indeed, as the legal order in international law now stands, it would be possible for a state to refuse the fulfillment of any obligation endorsed in SC resolutions on the basis of a conflict with jus cogens. It is nevertheless clear that if such a provision was adopted, this could not only result in political disturbances – it would be almost impossible to implement it in practice.

 

As for the responsibility of states, two draft conclusions concerning states’ obligation with respect to a situation conflicting with jus cogens have been brought into question by the ILC members.[13]To be exact, the bone of contention was whether it is justified to differentiate between the active and the passive state obligations, namely the “duty to cooperate” and the “duty not to recognize and assist”, depending on the gravity of breach of jus cogens norm. This approach conflicts with previous documents of the ILC (see article 41 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts). In spite of the departure from the wording used in the aforementioned article, it seems reasonable to support the Special Rapporteur’s insistence to differentiate between different states’ obligations. Imposition of a lower standard, namely, not to recognize and assist in any situation which resulted from a violation of jus cogens norms, should be regarded as a welcome novelty. Indeed, it would be completely absurd to consider the gravity of the breach of jus cogens in this situation and therefore give the impression that it is lawful to recognize and assist in situations where the breach of jus cogens norms is not considered “serious”.[14]

 

Yet, the real trigger for divergent opinions were the draft conclusions addressing specific aspects of jus cogens and international criminal law. They stipulated state obligation to prosecute in cases of commission of “jus cogens crimes”, i.e. crimes violating jus cogens norms, and the irrelevance of the immunity ratione materiae for those offences.[15]These findings involve a number of highly complex issues. Firstly, any suggestion on a universal agreement concerning the duty to exert universal jurisdiction for all jus cogens crimes is insufficiently proven. This is evidenced by the fact that many states have expressed a clear reluctance towards the existence of the aforementioned duty.[16]Secondly, the discussion on the (ir)relevance of immunity ratione materiae for jus cogens crimes has demonstrated a certain level of misunderstanding among the ILC members, e.g. concerning the difference between immunity from civil and criminal proceedings. More importantly, a clear line between state and personal immunity has not been emphasized sufficiently. As a result, the reference to the ICJ judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), as proof that there exists an exception to the rules on immunity,[17]appears inaccurate and unpersuasive. In this case, the ICJ has even explicitly stated that the only immunity in question is the immunity of a state, and that in any event, this should be considered without prejudice to the immunity of an official of the state.[18]

 

What comes next?

 

The ILC’s discussions on jus cogens are to be continued next year and many challenging questions will come into play again. According to the emphasis given to the issue, an illustrative list of jus cogens norms is to be expected sometime in the future.[19]Also, the need for a separate discussion on regional peremptory norms has been stressed on many occasions.[20]It would, therefore, be interesting to see how such norms could be subsumed under the current definition of jus cogens which stipulates them as “norms accepted and recognized by the international community of States as a whole.”[21]

 

Before concluding the present analysis, it is important to point out a core concern: it is evident that the ILC considers states’ consent and agreement to be crucial in all matters related to jus cogens. In this respect, it should be noted that the values protected by jus cogens are above states and their will, hence, their consent can never be the most relevant or the only decisive factor for their definition. Regardless of states’ perception of the peremptory norms, jus cogens should be perceived as principles which aim to protect the interests of the international community as a whole, and which therefore impose legitimate limitations to some other key principles of international law, such as stability of treaty relations, or the superior and binding nature of SC resolutions. While we do not wish to prejudge the accuracy of the ILC’s current approach, we wonder whether it is truly independent from state or political influence.

 

 

 

 

[1]The session ended on 10 August 2018 as provided by the UNGA Resolution 72⁄116 (7 December 2017) UN Doc A⁄RES 72⁄116, at para 14.

[2]For the full text of the proposed draft conclusions see ILC, ‘Third report on peremptory norms of general international (jus cogens) by Dire Tladi, Special Rapporteur’ (12 February 2018) UN Doc A⁄CN.4⁄714, at para 160.

[3]ILC, ‘Report of the ILC on the Work at its 70th Session (30 April–1 June and 2 July–10 August 2018) UN Doc A⁄73⁄10, at para 111.

[4]Ibid, at para 113.

[5]Apart from the individual ILC members, Mr. Tladi also raised similar concerns. Ibid, at para 153.

[6]See, e.g., ibid, at para 131.

[7]See full texts of draft conclusions 17, 22 and 23 in ILC, ‘Third report’ (n 2), at para 160.

[8]ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 154.

[9]See full text of draft conclusions 10 to 13 in ILC, ‘Third report’ (n 2), at para 160.

[10]ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 119.

[11]Ibid, at paras 123–124.

[12]Ibid, at para 132.

[13]See full text of draft conclusions 20 and 21 in ILC, ‘Third report’ (n 2), at para 160.

[14]This argument was also introduced by the Special Rapporteur. ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 159.

[15]See full text of draft conclusions 22 and 23 in ILC, ‘Third report’ (n 2), at para 160.

[16]Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the basic concept’ (2004) 2 JICJ 754. See also Dapo Akande’s response related to the topic: (…)“where universal jurisdiction is lawful the state exercising it will usually be permittedto prescribe globally. But it is not required to do so.” Galli Toma, ‘Universal Jurisdiction or Regional Lawfare’ (EJIL: Talk!, 1 June 2016)         <https://www.ejiltalk.org/universal-jurisdiction-or-regional-warfare/>  accessed 2 November 2018.

[17]See, e.g., ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 161.

[18]Jurisdictional Immunities of the State (GermanyvItaly, Greece intervening), Judgment, ICJ Reports 2012 (3 February 2012), at para 91. See also para 87 of this judgment.

[19]Ibid, at para 150.

[20]Ibid, at para 151.

[21]Vienna Convention on the Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) art 53.Jus cogensJus cogensJus cogens

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In the Spotlight: The Legitimacy of the International Criminal Court

By Caleb H Wheeler

Lecturer in Law at Middlesex University, London

 and author of the recently published book The Right to Be Present At Trial in International Criminal Law (Brill 2018)

c.h.wheeler@mdx.ac.uk

 

Recently, the International Criminal Court (‘ICC’ or ‘the Court’) has increasingly found itself in the political spotlight. On 10 September John Bolton, a United States National Security Adviser, attacked the Court as ‘illegitimate’ and claimed that ‘for all intents and purposes, the ICC is already dead.’ Donald Trump reinforced those contentions in his address to the United Nations General Assembly on 24 September when he asserted that ‘the ICC has no jurisdiction, no legitimacy and no authority.’ This blog post will examine the context of Bolton and Trump’s statements about the legitimacy of the International Criminal Court in an effort to determine whether they were challenging its legitimacy vis-à-vis the United States or if they meant to question its overall legitimacy. It finds that the Court’s overall legitimacy is not in question but that it is very limited in how it can exert jurisdiction over the United States.

 

There is some basis for the argument that the International Criminal Court lacks legitimacy with regard to the United States. As a treaty-based legal institution, the International Criminal Court is limited to exercising authority only in the territory of those states that have consented to such an exercise of power. The United States is not a state party to the International Criminal Court and as such the Court can only apply jurisdiction over its populace in two situations. The first is if an American citizen commits a crime on the territory of a state that is a party to the Statute. The second would arise following a Security Council referral to the Court of a situation occurring in the United States. However, as a permanent member, the United States can veto any Security Council decision, making it functionally impossible that there ever will be such a referral. Further, The United States has negotiated over 100 bilateral agreements in which states parties to the Rome Statute have agreed that they will not surrender Americans found on their territory to the International Criminal Court. While it is not strictly true that the International Criminal Court can never exercise jurisdiction over Americans accused of international crimes, it can only happen under a narrow set of circumstances.

 

The context of Trump and Bolton’s statements may also suggest that they were specifically challenging the International Criminal Court’s legitimacy to act in relation to the United States. Trump’s comments were prefaced by the qualifier, ‘[a]s far as America is concerned…’ This statement can be interpreted in two ways. It could mean that the Court has no jurisdiction, legitimacy or authority when it comes to Americans or acts that take place on the territory of the United States. It could also mean that the United States rejects the jurisdiction, legitimacy, and authority of the Court in toto.

 

Bolton’s comments seem to confirm that American criticism of the International Criminal Court is largely focused on its perceived interference with state sovereignty. Not surprisingly, his comments are primarily designed to protect American interests, but he also argues against any possible interference by the Court with Israel’s construction of settlements in the West Bank. He also threatens sanctions against the Court if it attempts to initiate proceedings against ‘us, Israel or other US allies.’ While Bolton clearly dislikes the International Criminal Court as a whole, he is particularly concerned with the possibility that it might exercise judicial authority over citizens of states not party to the Court Statute. This is made clear in his summation in which he states, ‘an international court so deeply divisive and so deeply flawed can have no legitimate claim to jurisdiction over the citizens of sovereign nations that have rejected its authority.’ Although the United States is not directly mentioned, it is apparent that the possibility that the Court might try to exert authority over the United States, and to a lesser extent Israel, is foremost in Bolton’s mind. Ultimately it should come as no real surprise that the United States would prioritize protecting its citizens over the interests of justice. The late Cherif Bassiouni predicted that the interests of states and Realpolitik would be the ‘principle obstacles to the effectiveness of the ICC.’

 

A much more complicated question is raised if Trump and Bolton meant to suggest that the International Criminal Court is generally illegitimate. Bolton, speaking on behalf of the president, challenges the overall legitimacy of the Court by attacking its ‘unfettered powers’ and for being structured in a way that he believes is ‘contrary to fundamental American principles’. A superficial reading of this statement leads to the conclusion that Bolton is asserting that the International Criminal Court lacks legitimacy only in relation to the United States. However, when placed in its larger context it becomes apparent that Bolton’s statement could have been meant to attack the legitimacy of the Court as a whole. In a journal article published in 2000, Bolton specifically stated that ‘the Court and the Prosecutor are illegitimate’ and he directly tied their lack of legitimacy to the way in which the Court is structured.[1]Bolton expresses particular concern with what he characterises as the prosecutor’s ‘potentially enormous, essentially unaccountable powers’ that give her the ability to exercise jurisdiction over citizens of states that are not party to the Rome Statute. He also believes that the Court’s decision not to implement a tripartite structure, with three equal and co-extensive branches, means that it lacks the necessary checks and balances to adequately protect the liberty of individuals. Bolton further claimed, both in 2000 and 2018, that the Court’s Statute is so deeply flawed as to be irreparable. It is reasonable to believe that the comments made in September 2018 are a continuation of the position he first set out in 2000, and thus to conclude that the perceived problems with the Court’s structure and Statute impair its overall legitimacy. As Bolton was speaking in his official capacity as a national security adviser, and his comments were partially echoed by President Trump, one could infer that the United States believes that the International Criminal Court suffers from a fundamental lack of legitimacy.

 

Only weeks before Bolton’s speech, a group of 132 parliamentarians from five Southeast Asian states released a joint statement in which it called on the United Nations Security Council to refer Myanmar to the International Criminal Court for human rights abuses allegedly committed against the Rohingya ethnic group. That was followed on 25 September, a group of six South and North American states formally referredVenezuela to the International Criminal Court for international crimes allegedly being committed there. This referral and proposed referral act to contradict the United States’ position on the legitimacy of the Court. This is demonstrated by the fact that both groups believe that the International Criminal Court is the appropriate venue at which to prosecute the perpetrators of the crimes alleged. The Court’s legitimacy was bolstered by Canada’s president, Justin Trudeau when he asserted, ‘[t]he International Criminal Court has our full support and confidence.’ The Southeast Asian parliamentarians also implicitly recognized the legitimacy of the Court when they directly linked referral to the Court as the best pathway to accountability for the alleged perpetrators. These actions and statements leave no doubt that those nations involved still believe in the Court’s legitimacy.

 

Most importantly, the inherent legitimacy of the International Criminal Court is demonstrated by the fact that there are 123 states parties to the Court. This constitutes 64 percent of all members of the United Nations. Those 123 nations confirm their belief in the Court’s legitimacy by accepting the jurisdiction of the Court within their territory and over their nationals. Interestingly, Bolton tries to downplay this source of legitimacy in his remarks by suggesting that because 70 nations are not member states, and because of the large population of some of those states, ‘most of the world’ has rejected the Court.

 

The Court itself confirmed its own legitimacy in its recent decision on its jurisdiction over the crime against humanity of deportation as alleged against the government of Myanmar. In that decision, Pre-Trial Chamber I found that the International Criminal Court possesses ‘objective international personality’ as a ‘legal-judicial-institutional entity’ that is separate and apart from the legitimacy conferred upon it by the recognition of its states parties. That legitimacy is evidenced by the Court’s engagement and cooperation with both states parties and non-states parties alike. The United States is included amongst the non-states parties that have engaged and cooperated with the Court by virtue of its status as an observer state to the Assembly of States Parties of the International Criminal Court. In fact, at the most recent Assembly of States Parties the United States implicitly acknowledged the Court’s legitimacy when it identified the important role the International Criminal Court can play in ensuring that justice is delivered to the victims of international crimes.

 

The overall legitimacy of the International Criminal Court is not in doubt. Numerous international actors, including the government of the United States, have reconfirmed its legitimacy. Therefore, the comments made by Bolton and Trump must be viewed as a repudiation of the International Criminal Court’s ability to exercise jurisdiction over citizens of the United States. That being said, simply because the Court cannot exercise jurisdiction over Americans does not also mean it is illegitimate as far as the United States is concerned. What Bolton and Trump are really expressing is their disapproval with the manner in which the Court operates and their concern that it might exercise jurisdiction over American citizens in one of the small areas still open to it. In the end, these comments are really nothing more than rhetoric designed to achieve the political objective of undermining the Court at the expense of justice.

 

[1]John R Bolton, ‘The Risks And Weaknesses Of The International Criminal Court From America’s Perspective’ (2000) 64(1) Law and Contemporary Problems 167, 169blog

Photos courtesy: Spencer Platt/Getty Images: Andrew Harnik/AP Photo: The International Criminal Court

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The Concept of Abuse of Process in the Immunities Case between Equatorial Guinea and France before the ICJ

Dr. Eugenio Carli, Ph.D. (Research Fellow Political and International Sciences Department, University of Siena, eugenio.carli86@gmail.com)

 

Overview of the Dispute

On 13 June 2016 Equatorial Guinea (the Applicant) filed an Application instituting proceedings against France (the Respondent) before the International Court of Justice (ICJ or ‘the Court’) claiming that certain ongoing criminal proceedings in France against the Equatoguinean Second Vice-President – Mr. Teodoro Nguema Obiang Mangue – constituted a violation of the immunity from criminal jurisdiction he is entitled to under international law. The Application also claimed that the seizing of a building located in Paris used for the purposes of the diplomatic mission of Equatorial Guinea in France constituted a breach of the norm on the inviolability of the premises of diplomatic missions. The Applicant maintained that the ICJ had jurisdiction both on the basis of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Diplomatic Relations of 18 April 1961(the ‘Optional Protocol’)[1]and of Art. 35 of the United Nations Convention against Transnational Organized Crime of 15 November 2000(the ‘Palermo Convention’).[2]

In the third of its preliminary objections of 30 March 2017, France affirmed that the case’s referral to the ICJ is ‘completely artificial’ (para. 59), because ‘Equatorial Guinea links its claims to conventional provisions which, given the facts of the case, cannot be regarded as a credible basis for the exercise of the Court’s jurisdiction’ (para. 58) and, as claimed in the oral proceedings, ‘en l’absence manifeste de toute voie de droit’ (p. 48, para. 8) (i.e.through an abuse of process). France also upheld that the Application filed by Equatorial Guinea constituted an abuse of rights and should, therefore, be dismissed.

The case is interesting because it confirms the tendency of the ICJ to not uphold claims by Respondent States aimed at asserting the commission of an abuse of process by the Applicant party, this time providing few more indications as to the scope of application of this principle.

 

The Notion of ‘Abuse of Process’ and the ICJ Case Law

The abuse of process can be defined, in general terms, as the use of a legal process to accomplish an unlawful purpose, by resorting to illegal, malicious, or perverted means.[3]As Kolb puts it, abuse of process ‘consists of the use of procedural instruments or rights by one or more parties for purposes that are alien to those for which the procedural rights were established, especially for a fraudulent, procrastinatory or frivolous purpose, for the purpose of causing harm or obtaining an illegitimate advantage, for the purpose of reducing or removing the effectiveness of some other available process or for the purpose of pure propaganda’.[4] The notion at stake can be considered as a corollary of the international law principle of good faith with which the former shares a certain degree of vagueness.

While the notion of abuse of process has become dangerously popular in international investment arbitration in recent years,[5]the same cannot be said with regard to the practice of the ICJ, which has not yet provided for a definition of abuse of process and have thus far rejected all claims concerning this particular conduct. One of the first cases where the ICJ was faced with this issue was the Arbitral Award of 31 July 1989, in which Senegal upheld that Guinea-Bissau’s Application was inadmissible since Guinea-Bissau was trying to misuse a declaration with the intention of casting doubts on the validity of the arbitral award. However, the judges rejected the argument affirming that ‘Guinea-Bissau’s Application [was] properly presented in the framework of its right to have recourse to the Court in the circumstances of the case’.[6]In Certain Phosphate Lands in Nauru Australia upheld that Nauru had failed to act consistently and in good faith in relation to rehabilitation of the phosphate lands at stake, but the judges concluded again that the Application by Nauru had been properly submitted and that its conduct did not amount to an abuse of process.[7]In Armed Activities in the Territory of the Congo Rwanda contended that the re-submission of the same application by Congo was a clear abuse of process, but the ICJ decided not to remove the case from its list, without giving any further explanation.[8]

These judgments show that abuse of process only concerns the preliminary phases of proceedings (not the merits) and is, in particular, linked to the admissibility of a claim. This is confirmed by the judgment on the Immunities Case, discussed below.

 

The Content of the Claim of ‘Abuse of Process’ made by France and the Position of the ICJ

As mentioned earlier, France claimed that the Application submitted by Equatorial Guinea should be rejected, constituting an abuse of process. More specifically, the Applicant allegedly reversed the ordinary procedural sequence, claiming breaches by the Respondent of its international obligations and requesting the Court to make a finding to that effect, but remaining ‘evasive’ and ‘cursory’ as to the basis for the exercise of the Court’s jurisdiction.[9]Therefore – as argued by France – the conduct of Equatorial Guinea is in contrast to the fundamental principle of international law, which provides that no State may be subject to the jurisdiction of an international court without its consent.[10]Moreover, according to the Respondent, the Application contained similar submissions to those articulated in a previous one, dated 25 September 2012, when France had not accepted the exercise of the ICJ’s jurisdiction, which has led Equatorial Guinea to find a strategy to devise that lack of consent in the present case. This strategy consisted, on the one hand, in acceding to the Optional Protocol – yet without specifying which provision of the Vienna Convention on Diplomatic Relations is at the origin of the dispute with France – and, on the other, in invoking the Palermo Convention, whose provisions, according to France, do not concern the present facts.

On its part, in its written statement, Equatorial Guinea contended that it had recourse to dispute settlement procedures in good faith and in accordance with the conditions and requirements laid down in the Optional Protocol and in the Palermo Convention. In particular, the Applicant maintained that seizing the ICJ, ‘even immediately after accepting its jurisdiction’, does not constitute an abuse of process and that under international law ‘there is no limitation period for invoking bases of jurisdiction’.[11]

In its judgment on Preliminary Objections of 6 June 2018, the ICJ first drew a distinction between the concepts of abuse of process and abuse of rights. While admitting that ‘the basic concept of an abuse may be the same’, the judges argued that consequences stemming from the two may be different.[12]After having mentioned earlier cases in which the ICJ had to deal with those issues, the judges tried to clarify the scope of application of the abuse of process, by saying that it ‘goes to the procedure before a court or tribunal and can be considered at the preliminary phase of these proceedings’.[13]In light of this, the Court concluded, by fourteen votes to one,[14]that ‘Equatorial Guinea, having established a valid title of jurisdiction, should [not] be barred at the threshold without clear evidencethat its conduct could amount to an abuse of process. It is only in exceptional circumstancesthat the Court should reject a claim based on a valid title of jurisdiction on the ground of abuse of process’ and this was not the case.[15]

 

Final Remarks

The ruling of the Court confirms that abuse of process only comes into play as a preliminary objection as to admissibility. The concept is defined in very narrow terms by the judges, so as to raise the threshold of application. Furthermore, a clear explanation of why the abuse of process did not occur in the present case is hardly substantiated. Judges seem to assert that when a valid title of jurisdiction is present, hardly ever an abuse of process can prevent the continuance of proceedings.[16]In so doing, the Court seems almost to put those two distinct concepts on a hierarchical scale of values, with the one corresponding to a valid title of jurisdiction prevailing.

Moreover, the way the Court deals with this aspect looks slightly dismissive. In particular, it remains uncertain what is to be meant as ‘clear evidence’ and what France should have proved for its claim to be upheld. Even analysing the Respondent’s arguments, the diversity and vagueness of the elements supporting the claim of an abuse of process against Equatorial Guinea seem to confirm the view that the content of this concept is still unclear in the context of international adjudication.[17]Yet this was a good (missed) opportunity for the Court to clarify the issue, in order to avoid applicant States to take advantage of this case law in the future. Eurgenio

 

 

 

[1]According to Art I of the Optional Protocol, ‘[d]isputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the [ICJ] and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol’.

[2]Art 35, par 2, of the Palermo Convention provides that ‘[a]ny dispute between two or more States Parties concerning the interpretation or application of this Convention that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court’.

[3]In the present post we will only deal with the concept of abuse of process– considered as an application of the abuse of rightsprinciple – having the ICJ ruled that the latter requires an examination of the merits of the case which has yet to be done at the time of writing. It is however interesting to note how the Court is extremely careful to keep the two concepts distinct from one another, probably with a view to raise the threshold for inadmissibility.

[4]R Kolb, ‘General Principles of Procedural Law’ in A Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary (Oxford University Press 2006) 831, para 65.

[5]See on this E Gaillard, ‘Abuse of Process in International Arbitration’ in ICSID Review(2017), pp 1-21.

[6]ICJ, Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, ICJ Reports 1991, p 53, para 27.

[7]ICJ, Certain Phosphate Lands in Nauru(Nauru v. Australia), Preliminary Objections, Judgment, ICJ Reports 1992, p 240, para 38.

[8]ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Reports 2006, p 6, para 25.

[9]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Preliminary Objections of the French Republic, 30 March 2017, paras 60-61.

[10]Ivi, para 75.

[11]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Written Statement of the Observations and Submissions of the Republic of Equatorial Guinea on the Preliminary Objections Raised by the French Republic, 31 July 2017, para 1.73.

[12]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Judgment, Preliminary Objections, 6 June 2018, para. 146.

[13]Ivi, para. 150.

[14]Judge Donoghue against.

[15]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Judgment, Preliminary Objections, 6 June 2018, para. 150 (emphasis added).

[16]Like the one owned by Equatorial Guinea on the basis of the Vienna Convention on Diplomatic Relations, having the Court found that it lacks jurisdiction under the Palermo Convention.

[17]Undue shortness and evasiveness of the question of the Court’s jurisdiction, lack of any conventional provisions binding the Parties to submit such a dispute to the Court, prior lack of consent by France to its exercise of jurisdiction, etc.

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Deportation of the Rohingya people as a crime against humanity and the territorial jurisdiction of the ICC

Alessandra M De Tommaso (PhD student in international law, Middlesex University (London); alessandra.detommaso@gmail.com)

  1. Introduction

On 9 April 2018, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC, or the Court) submitted a request pursuant to article 19(3) of the Rome Statute establishing the ICC (or the RomeStature, or the Statute) seeking a ruling on whether the Court may exercise its jurisdiction “over the alleged deportation of the Rohingya people from Myanmar to Bangladesh”. On 11 April 2018, the President of the Pre-Trial Division, Judge Antoine Kesia‐Mbe Mindua, assigned the matter to Pre-Trial Chamber I for further determination. On 7 May 2018, the Pre-Trial Chamber issued a decision inviting Bangladesh to submit its observations on the Prosecution’s request.

Article 19(3) of the Statute grants the Prosecutor the power to request a ruling from the Court on a question of jurisdiction or admissibility.[1]To date, this is the first time that the OTP submits a request pursuant to article 19(3).  In the case at hand, the need for such a ruling arises from the exceptional circumstances of the situation concerning the Rohingya people. Indeed, in this case, only the receiving State (Bangladesh) has accepted the ICC’s jurisdiction, while the originating State (Myanmar) has neither ratified the Rome Statute nor accepted the Court’s jurisdiction underarticle 12(3) of the Statute.

In its Request, the OTP addresses two legal issues: (i) the definition of deportation as a crime against humanity pursuant to article 7(1)(d) of the Statute; and (ii) the scope of the Court’s territorial jurisdiction under article 12(2)(a) of the Statute. This post provides a brief overview of the arguments submitted by the OTP, focusing in particular on the observations concerning the inherent transnational character of the crime of deportation and its implications on the territorial jurisdiction ofthe ICC.

  1. Deportation as a crime against humanity under the Rome Statute

The first issue addressed by the Prosecutor concerns the definition of deportation as an independent crime against humanity distinct from the crime of forcibletransfer. The Rome Statute lists both crimes under article 7(1)(d), which reads as follows:

“For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

[…]

(d) Deportation or forcible transfer of population;”[2]

Although included under the same provision, deportation and forcible transfer should be interpreted as two separate offences.[3]Indeed, as argued by the Prosecutor, deportation requires that the victim is forced to cross a de factoor de jureinternational border, whereas forcible transfer refers to internal displacement.[4]Such a distinction has constantly been recognised in the copious jurisprudence of the ICTY on the matter.[5]To provide a recent example of that, in 2016, the Trial Chamber in Prosecutor v Radovan Karadzic observed:

‘488. The elements of deportation and forcible transfer are substantially similar. Deportation and forcible transfer are defined as: (i) the forced displacement of one or more persons by expulsion or other forms of coercion, (ii) from an area in which they are lawfully present, (iii) without grounds permitted under international law. There is an important distinction between the two crimes; for deportation, the displacement of persons must be across a de jureborder between two states or, in certain circumstances, a de factoborder, and for forcible transfer, the removal may take place within national boundaries.’[6]

Interestingly, it is from the case law of the ICC that some uncertainty may still arise on the legal standing of deportation as an autonomous crime. In the Rutocase, Pre-Trial Chamber II described ‘deportation or forcible transfer’ under article 7(1)(d) of the Statute a ‘unique crime’ with ‘two labels’, leaving any concrete determination on the distinction existing between the two labels to the Trial Chamber.[7]In recalling this precedent, the OTP contests that it was in the intention of the Pre-Trial Chamber II to conflate the two crimes and observes that in many other occasions the ICC Pre-Trial Chambers have implicitly recognised the distinct nature of the two crimes by confirming charges ‘onlyof forcible transfer and notdeportation’.[8]

Therefore, the OTP concludes that deportation under article 7(1)(d) of the Statute is anautonomous crime, requiring the forcible displacement of persons across an international border. It followsthat deportation has an inherently transnational component and ‘is not completed until the victim has been forced to cross a de jureor de facto international border’.[9]

  1. The scope of the territorial jurisdiction of the Court under article 12(2)(a) of the Statute

The transnational character of deportation implies that not all legal elements of the crime occur on the territory of a single State. By definition, indeed, the crime is established only when the victim crosses the border of the State where he or she lawfully resided, to enter the territory of a different State. No particular issues arise when both the originating State and the receiving State are Parties to the Statute. But what happenswhen only one of the two States has ratified the Rome Statute?

Pursuant to article 12(2)(a) of the Statute, the Court may exercise its territorial jurisdiction when ‘the conduct in question’ occurred on the territory of a State Party or of a State that hasaccepted the Court’s jurisdiction.[10]The Statute provides no guidance on how the term ‘conduct’ should be interpreted in the context of article 12(2)(a) of the Statute. Thus, the Court is left with the task of establishing whether the term ‘conduct’ refers only to the criminal conduct or includes also its consequences, and whether the provision applies to the partial commission of a crimeon the territory of a State Party or requires all the elements of the crime to occur on that territory.[11]Narrowly interpreted, the provision might restrict the Court’s territorial jurisdiction only to instances where the whole conduct (understood as the physical manifestation of the criminal act/omission) took place on the territory of a State Party, irrespectively of its consequences.

In its Request, the OTP firmly refuses such a narrow interpretation. First of all, the Prosecutor argues that the correct way of interpreting article 12(2)(a) of the Statute is to read the term ‘conduct’ as a synonymous of ‘crime’, so to include the criminal act/omission and its consequences.[12]The Prosecution then argues that the ‘conduct’ requirement under article 12(2)(a) of the Statute means that ‘at least one legal element of an article 5 crime must occur on the territory of a State Party’.[13]Indeed, the OTP submits that excluding the Court’s territorial jurisdiction when only some of the elements of a crime occurred on a State Party’s territory would be inconsistent with ‘the general and long-establishedapproach of the international community in exercising criminal jurisdiction’ and would go against the object and purpose of article 12(2)(a).[14]

Applying this interpretation of article 12(2)(a) of the Statute to the crime of deportation, the Prosecution submits that the ICC may exercise itsterritorial jurisdiction ‘eitherif the originating State is a State Party to the Court orif the receiving State is a State Party to the Court’.[15]In case of deportation, indeed, it is not relevant that the coercive acts took place only on the territory of a State not Party, ‘since the coercion and the movement of the victim [across the border] are distinct legal elements under article 7(1)(d)’.[16] In the Prosecutor’s own words:

“… in adopting the Statute as a whole, the drafters manifestly intended to grant the Court ‘jurisdiction over the most serious crimes of concern to the international community as a whole’. This expressly included the crime of deportation, which has an inherently transnational character. If it was understood arguendo that article 12(2)(a) jurisdiction was only established where all the elements of a crime were committed on the territory of a State Party, this would exclude the Court’s jurisdiction over deportation—which requires one element that always occurs beyond the territory of the victims’ State of origin—unless both States are Parties to the Rome Statute.”[17]

Thus, it is the Prosecutor’s conclusion that, in the situation concerning the Rohingya people, the circumstance that the receiving State (Bangladesh) is a State Party may trigger the Court’s territorial jurisdiction even though the originating State (Myanmar) is not a Party to the Statute.

  1. Conclusion

The Prosecution’s Request should be saluted as a positive attempt to bring justice to the Rohingya people.[18]From a more general perspective, the Request should also be welcomed for its interesting insights in the interpretation of the Court’s territorial jurisdiction in connection with those crimes which have an inherently transnational character. Even if the judges of the Pre-Trial Chamber will not adopt the broad interpretation of article 12(2)(a) of the Statute submitted by the Prosecution, the latter’s request may give them the opportunity to clarify one of the still untouched issues concerning the territorial reach of the Court’s jurisdiction. However, it is not unrealistic to suppose that the Pre-Trial Chamber may refrain from embracing the Prosecutor’s interpretation of article 12(2)(a), as a similar determination may stir complaints from States not Parties to the Statute, fearing  future ‘interventions’ by the Court.Rohingya

[1]Article 19(3) of the Rome Statute.

[2]Article 7(1)(d) of the Rome Statute.

[3]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para 13.

[4]Ibid., , paras. 15-2.7

[5]See e.g. Gotovina et al. case(Judgment) IT-06-90, 15 April 2001, para. 1740; Kristíc case (Judgment) IT-98-33-t, 2 August 2001, para. 521; Krnojelac case(Judgment) IT-97-25-T, 15 March 2002, para. 474; Karadžić case(Public Redacted Version of Judgment Issued on 24 March 2016 – Volume I of IV) IT-95-5/18-T, 24 March 2016, paras 488-490.

[6]Karadžić case(Public Redacted Version of Judgment Issued on 24 March 2016 – Volume I of IV) IT-95-5/18-T, 24 March 2016, para 488.

[7]Ruto case(Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09-01/11-373, 23 January 2012, para 268.

[8]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para 26 [emphasis in the original].

[9]Ibid., para 26.

[10]Article 12(2)(a) of the Rome Statute.

[11]See, on this regard, Michail Vagias, ‘The Territorial Jurisdiction of the International Criminal Court – A Jurisdictional Rule of Reason for the ICC?’ (2012) 59 Netherlands International Law Review 43, 44; Jean-Baptiste Maillart, Article 12(2)(a) Rome Statute: The Missing Piece of the Jurisdictional Puzzle, EJIL: Talk! https://www.ejiltalk.org/article-122a-rome-statute-the-missing-piece-of-the-jurisdictional-puzzle/(last accessed on 9 May 2018).

[12]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para46.

[13]Ibid., para 28.

[14]Ibid., paras 25 and 29.

[15]Ibid., para 28 [emphasis in the original].

[16]Ibid., para 28.

[17]Ibid.,para 49.

[18]See Human Right Watch, ICC Prosecutor’s Unprecedented Bid to Bring Justice to Rohingya, 10 April 2018, https://www.hrw.org/news/2018/04/10/icc-prosecutors-unprecedented-bid-bring-justice-rohingya(last accessed on 9 May 2018).

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The Criminality of the Catalan Independence Referendum

Michelle Coleman, PhD Student in International Law at Middlesex University (London)

 

On 1 October 2017 a referendum vote in the Catalan region of Spain devolved into violence when police officers deployed by the national government attempted to prevent people from voting. According to some reports almost 900 people, including voters and potential voters, were injured. While recognising that there are disputed versions, this post follows the critics of the Spanish police’s actions, as described by the main NGOs and other academic bloggers.

 

This referendum asked the people of Catalonia whether they wanted the region to gain independence from Spain. This blog post explores the potential criminality that has arisen from participating in the referendum by organisers, voters and potential voters. Specifically, it will argue that participating in the referendum was not a per se criminal act. Participants could be investigated for crimes that occurred in the course of their participation, but not for the participation itself. Moreover, the police should not have targeted potential voters, using disproportionate force, because this violated the freedom of expression and did not fulfil the police’s duties of crime prevention or investigation.

 

Referendum’s Background and Constitutional Court Decision

 

Catalonia is an autonomous region in Northeastern Spain. The region’s quest for independence has a long history that has become more active in recent years. In January 2016, Carles Puigdemont was sworn in as the President of the Government of Catalonia. A staunch supporter of independence, he ran his campaign on the platform that he would hold a referendum on whether the region should become independent. The Spanish government has always opposed Catalan independence and the Constitutional Court found a previous move for Catalan independence to be unconstitutional in 2010.

 

On 19 September 2017 the Spanish Constitutional Court declared the proposed referendum unconstitutional on the grounds that there is no legal mechanism within Spanish law to allow a region to secede. They also held that the public prosecutor could investigate the leaders of the Catalan Parliament, as organisers of the referendum, for any potential crimes committed by organising the referendum.

 

Participating in an Unconstitutional Referendum is Not a Per Se Criminal Act

 

The Constitutional Court’s decision that the referendum was unconstitutional does not make participating in the referendum a criminal act. The decision merely means that the question that the referendum was asking was unconstitutional because there is no constitutional provision that allows for succession by referendum. As provided by the nullum crimen sine lege principle, an action is not a crime without a law criminally prohibiting that action at the time the action was committed. In Spain, there is no criminal law specifically prohibiting unconstitutional referendums, and because it is a civil law country, this law cannot be created by the Constitutional Court. Thus, the act of participating in the unconstitutional referendum is not a per se criminal act.

 

Just because there is no specific criminal law prohibiting unconstitutional referendums, does not mean that the act of holding or participating in such a referendum cannot result in a criminal charge. Holding or participating in the referendum may evidence a violation of an already existing criminal law. This is why the Constitutional Court stated that the public prosecutor could investigate the leaders of the Catalan Parliament; organising and holding the referendum may be evidence of treason, sedition, civil disobedience, misuse of public funds, and other crimes which already exist within Spanish criminal law. This is different however, from organising the referendum automatically becoming a criminal activity because the referendum’s topic has been held to be unconstitutional.

 

What About Voters or Potential Voters?

 

As explained above participating in the referendum itself is not a criminal offence. Further, while there is no fundamental right to vote in referendums, voting in a referendum is not in itself a criminal act, even if the referendum was held unconstitutional. Thus, voters and potential voters cannot be prosecuted for voting or attempting to vote in the referendum.

 

The situation for voters and potential voters is different from that of the organisers and Catalan leaders. Even without a right to vote in a referendum, voting itself is not a criminal act, it is merely an expression of opinion. Basically a referendum is someone is asking a question and someone else (a voter) providing their answer or opinion. This activity is protected under the right to freedom of expression. The fact that the referendum was declared unconstitutional does not change this; individual voters are still allowed to express their opinion on whether Catalonia should secede from Spain. Unlike organizing the referendum which could be evidence of crimes such as sedition, voting in the referendum does not have the same effect. Expressing an opinion against the Spanish government is not illiegal or criminal — people have been doing it for years. Thus, voters and potential voters merely participating in the referendum by stating their opinion are not committing a criminal act or providing evidence of a crime. They are exercising their right to express their opinions.

 

Of course, there can be some laws that were violated during the course of casting a vote. Among those crimes might be trespassing. Potential voters did not have proper permission to be on the property where the polling places were located. For example, many schools owned by the Spanish government. The Spanish government did not give permission for the public to use the school for holding an illegal referendum. Without proper permission, anyone entering the school for the referendum would be trespassing and could suffer criminal penalties. Whether trespassing occurred however was highly dependent on the situation. It would not occur in locations where the rightful owner of the property gave permission for the property to be opened to the public for the purpose of the referendum. Rightful owners have the ability to give permission for anyone to enter their property for any purpose they choose.

 

The Police Should Not Have Targeted Potential Voters

 

In an attempt to prevent the referendum from taking place, Spain’s paramilitary Civil Guard took charge of Mossos d’Esquadra (the Catalan police force). There were two ways for the police to prevent illegal elections from occurring: to focus on stopping the organisers and closing or preventing entry to any polling places or focus on potential voters and prevent them from entering a polling place or casting their vote. The first method focuses inward, on the referendum itself, while the second focuses outward on the general public. The police used both methods.

 

From the perspective of the Spanish government, closing or preventing entry to polling places may be a justified police action. The police are preventing crime by preventing an unconstitutional referendum, stopping individuals from trespassing in the polling locations, and perhaps even gathering evidence against organisers who may be liable. It is common to prevent property crime (such as trespassing) from occurring by protecting the property itself. This can be a legitimate method of suppressing an illegal action provided the police act within their normal powers. This can be done without focusing on potential voters outside of polling stations.

 

Police actions against voters and potential voters, who are not illegally inside polling locations, are not justified. Directing police actions toward potential voters wrongfully targets individuals who have not committed crimes. It punishes individuals by restraining them and restricting their movements and, at times, using violence against them. Essentially, targeting potential voters in the streets treats them in the same manner as those who are suspected of crimes. The result is not crime prevention or investigation but a stifling of freedom of expression. Yet, police officers may use force to restore public order. In that case, however, they should always comply with the necessity and proportionality requirements.

 

By focusing on the potential voters outside the occupied public buildings, the police acted as though they were the targets of crime prevention. The police took their crime prevention duties too far by targeting those whose actions were not criminal. In so doing the police exceeded the scope of their powers and reacted violently towards thousands of individuals who were merely expressing their fundamental right to freedom of expression. vote catalonia

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Time-Limitation Clause Against Private Litigants of the East African Court of Justice: A Call for a Purposive Interpretation of Article 30(2) of the East African Community

Dr. Ally Possi

Post-Doctoral Fellow, North-West University, South Africa; lecturer, the Law School of Tanzania

 

Introduction

This post exposes time-limitation obstacle facing private litigants in accessing one of the African regional economic community judiciaries: the East African Court of Justice (EACJ, or the Court). The EACJ is the judicial organ embedded to settle disputes in connection with the East African Community (EAC) integration activities. Comparatively, the EACJ is a replica of other regional economic community courts, currently in existence, such as the Court of Justice of the European Union.

Private litigants play a key role in modelling states’ behaviour to realise their integration ambitions. One of the operational principles of the EAC is the ‘people-centered’ co-operation form of integration (art 7(1)(a) of the EAC Treaty).[1] Therefore, it was not an oversight to permit individuals to account Member States before the EACJ, whenever there is an infringement of the EAC Treaty. However, article 30(2) of the Treaty restricts private litigants to lodge their complaints: within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant.

Following a significant level of silence on the stringent rule, this post is important considering the nature of the subject it tackles. Judges have been narrowly and strictly interpreting article 30(2) of the EAC Treaty, preventing private litigants to lodge their complaints to the EACJ with ease. Eventually, individuals are being denied access to justice. This post, therefore, argues that EACJ judges need to broadly and purposely interpret article 30(2) of the EAC Treaty, while at the moment the extension of the two months’ time window is denied on grounds that are contrary to the spirit of the EAC Treaty. Thus, this post provides some legal evidence for EACJ judges to stretch this interpretation.

East African Court of Justice

The Court is established pursuant to article 9 of the EAC Treaty, as one of the EAC organs bestowed with a mandate of interpreting and applying the EAC Treaty (see art 23, 27(1)). The Court is composed of two Divisions – the First Instance Division (FID), which has jurisdiction over most matters, and the Appellate Division (AD), where matters initially dealt by the FID are considered for appeal, as well as applications for advisory opinions. Worth a mention, accessibility to the EACJ by private litigants, challenging the acts of EAC Member States, is one of the most modern features in the catalogue of international and regional courts.

It is now about sixteen years after EACJ’s official inauguration on 30 November 2001. In 2005 the EACJ received its first case concerning a power struggle for enacting EAC laws between the Council and the East African Legislative Assembly (EALA). The turning point to the Court’s fortune was in 2007, when EAC Treaty was hastily amended as a means of retaliation from Member States,[2] due to a judgment by the Court faulting the manner in which members of EALA from Kenya were elected (see Anyang’ Nyong’o v AG of Kenya).

The process of amending the Treaty was, however, nullified in EALS v AG of Kenya & Others, of which the Regional Bar Association successfully challenged the amendment process by contending that EAC citizens were not consulted over the proposed amendment; a process required by the Treaty.[3] Thus, the EACJ found the amendment process was contrary to the letter and spirit of the EAC Treaty, of which one of its founding norms requires a people-centered driven form of integration. Despite of the EACJ decision, the amended Treaty retained its legal force. Perhaps, the nature of the EACJ’s decision, which was in a declaratory form, had something to do with its weak implementation; which is a matter of another academic debate. Nevertheless, it is important to point out that EAC Member States, as most African states, have the tendency of not complying with the decisions of international bodies. Be it as it may, it was through that illegal-pronounced amendment that article 30(2) was inserted.

EACJ’s approach on article 30(2)

The stance of the EACJ over article 30(2) EAC Treaty is appreciatively conservative; the article is strictly interpreted within its generic context. Consequently, many fresh cases are on the verge of facing dismissal, as it is unrealistic for private litigants to have a full case ready for court registration within sixty days. Case preparation takes time and demands resources. The EACJ has jurisdiction over a region where the majority of the people are least advantaged and under resourced. By being uncompromised to the two-months’ time draconian rule, judges are therefore denying individuals access to justice.

However, in the early EACJ cases, where article 30(2) EAC Treaty was at the focal point of dispute, the FID used to condone it. In IMLU v AG of Kenya, for instance, the applicant accused Kenya of violating the EAC Treaty, for failing to prevent or punish the perpetrators of the violence occurred at Mount Elgon during the 2007 general election. Kenya refuted such allegations by objecting the time in which the applicant’s complaint was lodged. In its decision, the FID stated (at p. 10):

It is our considered view, that the matters complained of are failures in a whole continuous chain of events from when the alleged violations started until the Claimant decided that the Republic of Kenya had failed to provide any remedy for the alleged violations. We find that such action or omission of a Partner State cannot be limited by mathematical computation of time.

The above reasoning was the FID’s stance in the early few cases with time-limit concerns.[4] When those cases reached the AD, however, they all were overturned on the grounds that the EACJ does not have any mandate to stretch time limits; and that arguments on the application of the doctrine of continuing violation cannot be sustained since EACJ is not a human rights court, where the doctrine is relevant (see AG of Uganda v Omar Awadh). As it stands, no flexibility is seen from the EACJ yet to at least liberally interpreting article 30(2) EAC Treaty.

The AD’s position came at a time when minds of all those affiliated with the EACJ were fresh from the suspicious 2007 Treaty amendment, of which the AD was created. It was also the first batch of AD appointed judges who presided on the above appealed time-limit cases. While there is no evidence of the then AD judges lacking impartiality, speculations on the AD’s verification role over FID cannot be shrugged-off with ease.

A call for a purposive interpretation

Article 30(2) EAC Treaty should be interpreted in light of its object and maiden purpose.[5] The following are reasons for the call. First, before the faulted 2007 Treaty amendment, article 30(2) was not inserted purposely to allow private litigants to have their share in playing a role within EAC integration without restrictions. After inserting article 30(2), individuals are now not able to access the EACJ with comfort. In fact, the provision was inserted in a discriminatory manner, as it is only applicable to private litigants and not to other potential applicants, such as the EAC Secretary General.[6] Therefore, strictly interpreting article 30(2) of the EAC Treaty is against the maiden spirit of the Treaty of allowing EAC citizens to have a say in the activities of their economic bloc.[7]

Second, private litigants are key in spearheading integration goals through litigation on matters directly associated with integration. By strictly applying article 30(2) EAC Treaty, applicants will not easily access the EACJ, eventually denying them access to justice and hindering them from playing a crucial role in shaping the integration. A society such as that of the EAC where most indigents are illiterate and legal services are scarce, a time-window of sixty days is minute. One would take about six months and above to gather evidence, jotting-down pleadings, and seeking legal assistance; let alone the time to be aware of legal procedures or even the existence of a court such as the EACJ. Thus, there is a need of applying the time limit rule with more logic.

Third, looking at the nature of cases received by the EACJ since its inception, the Court has been failing to attract traders due to its remedial powers and other related pitfalls.[8] In having a two months’ time limit for lodging a complaint, traders in the region will keep-on boycotting the Court and find other more favourable avenues to solve their disputes. Thus, by harshly interpreting article 30(2) EAC Treaty, the Court does not help its course of making traders bring commercial-related disputes before it.

Fourth, Rule 4 of the EACJ Rules of Procedure allows the Court to extend time in all procedural matters. Time-limits are also matters of procedure that judges should take note of and apply the rule for the benefit of individual litigants. It is somewhat surprising to find EACJ judges not toiling enough to broadly interpret article 30(2).

Fifth, there is evidence that the doctrine of continuing violation is commonly used in other legal matters, including tort and environmental law.[9] It is unfound for the Court to declare that the doctrine of continuing violation is only relevant to courts with human rights jurisdiction. Looking at matters concerning contracts, clearly, their nature of violation can be continuous. Being a regional economic community court, it is expected that trade and contractual related matters will be handled to the Court. By strictly interpreting article 30(2) of the EAC Treaty, to the extent of not upholding the continuing violation doctrine, the Court might not receive many critical cases, and in this respect it might fail to attract traders.

Sixth, using the same thread of reasoning from EACJ judges that the EAC Treaty does not explicitly confer the Court with a mandate to extend the restrictive time-limit, one can advance an argument that the Treaty also does not prevent EACJ judges from extending time-limits. Even more so, another glance to article 30(2) finds a phrase ‘within the article’, meaning that the rule is only determined upon weighing all circumstances at present. Thus, the EACJ can extend time for lodging complaints depending on the situation at hand.

Conclusion

Article 30(2) EAC Treaty is a hurdle to private litigants before the EACJ. By maintaining and conservatively applying the provision, genuine intention of having direct individual access to the EACJ becomes meaningless. A more recent attempt disputing article 30(2) proved futile (Steven Dennis v AG of Burundi & Others), when FID held that article 30(2) EAC Treaty conforms established Community norms. Understandably so, the FID cannot rule contrary to the AD. This latest decision has dashed private litigants’ hopes of getting rid of the draconian time-limitation rule. Therefore, it is submitted that, in the future, the EACJ should provide an interpretation of article 30(2) EAC Treaty based on its object and purpose, as established in the Vienna Convention on the Law of Treaties (art 31(1)).

 

 

 

 

[1] For a general understanding of the EAC principles, see: KC Kamanga and A Possi, ‘General principles governing EAC integration’ in E Ugirashebuja et al (Eds), East African Community law: Institutional, substantive and comparative EU aspects (Brill-Nijhoff, Leiden 2017) at 202-216.

 

[2] Henry Onoria, ‘Botched-up Elections, Treaty Amendments and Judicial Independence in the East African Community’ (2010) J. Afr. L. 74-94.

[3] Art 150 read together with art 7(1)(a) of the EAC Treaty.

[4] IMLU v AG of Kenya Ref No. 3/2010 of (29 June 2011); Rugumba v AG of Rwanda Ref No. 8/2010 (30 November 2011).

[5] Art 31 of the Vienna Convention on the Law of Treaties, 1969.

[6] See arts 28,29 and 30 of the EAC Treaty.

[7] Art 7(1)(a) of the EAC Treaty.

[8] James Gathii, ‘Variation in the Use of Sub-Regional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice’ (2016) Law & Contemp. Probs. 37-62.

[9] AC Lin ‘Application of the Continuing Violations Doctrine to Environmental Law’ (1996) 23 Ecology Law Quarterly 713-777; Elad Peled 2004-2005 ‘Rethinking the Continuing Violation Doctrine: The Application of Statutes of Limitations to Continuing Tort Claims’ (2004-2005) 41 Ohio Northern University Law Review 343-388. Ally

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Trump’s Travel Bans and Extreme Vetting: How They Violate Basic Human Rights

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

One of Donald Trump’s first actions as president of the United States was to issue an Executive Order banning the citizens of seven Muslim majority countries, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a period of 90 days. He justified the ban on the grounds that it would be detrimental to the United States if citizens of those states were permitted to enter the country while a review was being conducted of the existing screening and vetting procedures utilized to determine whether a person should be issued an entry visa. The implementation of the ban was halted by the issuance of temporary restraining orders by multiple federal district courts, and on 9 February, the Ninth Circuit Court of Appeals refused to stay enforcement of those temporary restraining orders. Unperturbed, President Trump issued a second executive order on 6 March in which he sought to ban citizens from six of the seven countries identified in the first ban (having removed Iraq from the original list) from entering the United States. That executive order was also challenged in Court, and federal district courts in Hawai’i and Maryland again prevented its implementation through the issuance of restraining orders. While much of the attention given to the travel bans focuses on the discriminatory effects they have on Muslims from certain countries, considerably less consideration has been given to the types of screening and vetting procedures the administration wishes to impose and the potential effects these new measures would have on the rights of all travelers to the United States. This blog post will demonstrate that policies requiring foreign travelers to reveal private electronic data are impermissible under United States’ domestic law and international law and should be avoided.

 

Both bans are titled ‘Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States’ and have the stated purpose of improving “the screening and vetting protocols and procedures associated with the visa-issuance process”. The goal of these improvements is to identify those individuals seeking to fraudulently enter the United States, and those that support terrorism, violent extremism, acts of violence towards any group of people within the United States or who prevent a risk of causing harm following entry. A number of specific techniques have been suggested to promote the proper identification of individuals falling into these categories, including: in-person interviews, the creation of a database of identity documents and amending application forms so as to better identify fraudulent answers. More general methods have also been proposed involving the development of mechanisms to determine whether applicants are not misrepresenting their identities, whether they may commit, aid or support violent terrorist acts after entering the United States and a catch-all category permitting the government to use “any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility”.

 

It is these latter, more general, categories that cause consternation, particularly in light of recent media reports suggesting that the new screening and vetting requirements could require foreign visitors to reveal their mobile phone contacts, social media passwords and financial data before gaining entry to the country. According to a senior Department of Homeland Security official, the goal of collecting mobile phone contact information is to learn the identities of those individuals who potential visitors are communicating with. Additionally, the secretary of the Department of Homeland Security previously stated that the purpose of demanding that people reveal their passwords is to allow the United States government to “see what they do on the internet.”

 

These proposals raise significant national and international right to privacy concerns. Domestically, the Fourth Amendment of the United States Constitution prohibits the unreasonable search and seizure of a person’s property and requires that search warrants be supported by probable cause. In 2014, the United States Supreme Court held in Riley v California that the police need a warrant to search the information contained on a mobile phone confiscated during a lawful arrest. That decision was based on a finding that mobile phone owners have a privacy interest in the data contained therein that can only be intruded upon through a valid warrant. Recently introduced bills in the Senate and House of Representatives seek to extend the warrant requirement set out in Riley v. California to searches of “electronic equipment and online accounts” occurring at the United States’ borders. The bills specifically state that there is a reasonable expectation of privacy about a persons’ digital content of their electronic information and online accounts and that it is unreasonable under the Fourth Amendment to permit border agents to access electronic equipment without a warrant. The bills do explicitly limit that right to privacy to “United States Persons” as described in 50 U.S. Code § 1801, a designation which encompasses citizens of the United States, lawful aliens with permanent residence and corporations incorporated in the United States. Despite this limitation, the general proposition remains that the right to privacy limits access to information contained on mobile devices. Further, the Fourteenth Amendment of the Constitution entitles non-citizens to equal protection under the law and the Supreme Court has specifically granted non-citizens the right to challenge government actions infringing on rights delineated in the Constitution. Therefore, any measures requiring individuals to produce that information would be unlawful.

 

International law also invalidates any argument that the right to privacy only extends to American citizens and other lawful residents. Article 17 of the International Covenant on Civil and Political Rights (ICCPR, or ‘the Covenant’), which the United States ratified in 1992, explicitly forbids the arbitrary or unlawful interference with an individual’s privacy. When delineating what sort of information States Parties must put in their reports to the Human Rights Committee, interference was described as unlawful when it does not comply with the laws of the State seeking to interfere with an individual’s privacy, and it is arbitrary when it does comply with the State’s laws, but where those laws are not in accord with the provisions, aims and objectives of the Covenant. The Committee goes on to find that interference with the right to privacy must be reasonable under the particular circumstances and should only be authorised to the extent that it is essential to the interests of society that such information is disclosed. This is a high bar to clear, and requires a case-by-case inquiry into each situation. Therefore, even if it could be shown that the information sought is essential to the interests of the United States, that it is reasonable to infringe on the right to privacy and that the right to privacy as it is understood in the United States does not prevent access to the information, a blanket demand that all foreign visitors provide contact, password and financial information will fail as it will not comply with the required fact specific inquiry.

 

In a 2013 resolution, the General Assembly of the United Nations clarified the parameters of the right to privacy as it pertains to digital information. The General Assembly specifically indicated that it was “deeply concerned” about the collection of personal data and its impact on the exercise and enjoyment of civil rights and emphasised that the unlawful or arbitrary collection of personal information is a highly intrusive act that violates the right to privacy. It called upon all states to respect the right to privacy and to establish measures meant to implement their human rights obligations. Although non-binding, this resolution indicates a rejection by the world community of the sort of measures the Trump administration hopes to impose. The General Assembly resolution also requested that the United Nations Commissioner for Human Rights submit a report addressing the right to privacy in the digital age. Although the resulting report primarily focused on information accumulated through mass surveillance programmes, it did clarify that, in addition to the requirements set out by the Human Rights Committee, any limitation on the right to privacy has to comply with other human rights and must not render the right meaningless. Limitations failing to meet these criteria are considered unlawful and/or arbitrary.

 

Therefore, it is important to examine whether limitations to the right to privacy also impact other human rights. In this instance, the proposed new screening and vetting requirements could act as an infringement on the First Amendment right to free speech. The First Amendment prevents the government from abridging the freedom of speech and allows people to make political statements critical of the government without fear of punishment, unless such statements are meant to incite imminent lawless action or constitute a legitimate threat to the president’s life. Knowing that their private statements could be subject to scrutiny by the United States’ government, and possibly act as a barrier to their entry into the country, could prevent individuals from speaking freely out of fear of the possible repercussions. This is particularly true where, as here, a person can enter the United States is left to the discretion of an individual Customs and Border Protection officer, and entry can be denied even if the traveler possesses a valid visa.

 

The ICCPR also forbids the infringement of free speech, although it characterizes it as two rights: the freedom of expression and the freedom of opinion. The freedom of opinion, as set out in Article 19, is not subject to any exception or restriction, meaning the government is not permitted to infringe upon it in any way. By comparison, the freedom of expression, which includes any type of dissemination of ideas, can be limited for national security reasons. Therefore, the proposed screening and vetting cannot limit a person’s ability to hold an opinion but they can limit whether the person can express that opinion. However, the standard for implementing such a restriction is high and they will only be found lawful if they are necessary to protect national security and are not overbroad so as to exceed their protective function.

 

Screening and vetting procedures that require foreign visitors to disclose private digital information raise First Amendment and Fourth Amendment concerns and are of dubious constitutionality. Further, even if these significant Constitutional issues can be overcome, such measures are also impermissible under international law. That is unlikely to act as much of a impediment on President Trump’s attempts to implement these procedures as he has demonstrated hostility towards international human rights law during his presidency. The best hope to avoid this proposed widespread violation of the Constitution is for the Federal Courts to continue to play their important role in upholding the rights of individuals.

*Picture courtesy of usa.gov

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The International Criminal Court Summer School 2017 19 to 23 June 2017, NUI Galway, Ireland

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.

This year’s ICC Summer School will include a topical special session on Corporate Crimes and the International Criminal Court.

The list of speakers at the 2017 ICC Summer School includes the following: Professor William Schabas (Irish Centre for Human Rights/Middlesex University); Professor James Stewart (University of British Columbia); Dr. Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University);  Professor Ray Murphy (Irish Centre for Human Rights); Dr. Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr. Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University);  Dr. Noelle Quenivet (University of the West of England); Dr. Nadia Bernaz (Middlesex University); Dr. James Nyawo (INTERVICT, Tilburg University); Dr. Nadia Bernaz (Middlesex University); Mr. Richard J. Rodgers (Global Diligence LLP); Mr. John McManus (Crimes Against Humanity and War Crimes Section, Canadian Department of Justice); Dr. Noelle Higgins (Maynooth University); Dr. Shane Darcy (Irish Centre for Human Rights).

The registration fee of €450 includes all conference materials, all lunches and refreshments, a social activity and a closing dinner. The registration fee also includes a complimentary copy of Professor William Schabas’ book ‘An Introduction to the International Criminal Court‘. The closing date for registrations is 1 June 2017.

To register and for more information regarding the 2017 ICC Summer School, please visit their website  and follow them on Facebook or Twitter.

Should you have any queries, please email them.

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The ECB imposes a new strategy on the management of NPLs: a first analysis of the “Draft Guidance to Banks on Non-performing Loans”

Daria Sartori, PhD, Trainee Lawyer, Mercanti Dorio e Associati; Giulia Ferrari, PhD, Attorney-at-Law, Mercanti Dorio e Associati

Introduction

In general terms, non-performing loans (NPLs) are bank loans which are considered as unlikely to be paid back because of the debtor’s delay in paying the agreed instalments or interest for a certain amount of time.[1] When a loan is non-performing, banks must set aside capital on the assumption that the loan will not be paid back, thus reducing their capacity to provide new loans.[2] When banks are overburdened by NPLs, the entire economy suffers, one of the consequences being that privates will face difficulties in having access to credit.

Within the EU, the issue of NPLs has been a substantial one since the outbreak of the financial crisis of 2007-2008. At a macroeconomic level, the significant upward trend of NPLs has reflected the consequences of heightened unemployment, depreciated currency and tight financial conditions.[3] At bank level, the excessive amount of NPLs has been linked to poor loan underwriting, monitoring and control.[4]

NPLs are now specifically addressed by the “Draft guidance to banks on non-performing loans” (the Guide), drafted by the European Central Bank (ECB) and open to public consultation from 12 September to 15 November 2016. The Guide collects a number of best practices identified by the ECB in the course of its supervisory functions and relating to the issue of NPLs, defined as all exposures of banks which are held to be at risk of non-repayment according to EU standards.[5] While the Guide is not, technically speaking, a binding instrument, non-compliance with its standards may trigger the imposition of supervisory measures for credit institutions which, pursuant to Regulation n. 468/2014 of the European Central Bank of 16 April 2014, fall within the ECB’s scope of supervision (so-called “Significant Institutions”, or SIs).

The present contribution provides an overview of the Guide and highlights the main issues relating to the problem of NPLs at bank level.

Banking supervision within the EU

Following the financial crisis of 2007–2008, EU institutions have called for the creation of a “banking union”, ensuring the safety and soundness of the European banking system thorough increased financial integration and stability. The first step towards a banking union has been the creation of a Single Supervisory Mechanism (SSM), comprising the European Central Bank (ECB) and the national supervisory authorities of the participating countries. The SSM’s task is to ensure that EU policies and rules on the prudential supervision of credit institutions are implemented in a coherent and effective manner.

The ECB’s supervisory functions are exercised in accordance with the EU Capital Requirements framework, i.e. the Capital Requirements Regulation[6] and Capital Requirements Directive.[7] These instruments transpose into EU law the standards elaborated at international level by the Basel accords, and they confer on supervisory authorities the power of imposing measures.

With regard to the ECB, these measures range from less stringent (such as the power “to impose additional or more frequent reporting requirements”, pursuant to Article 16 of the Capital Requirements Regulation) to substantial ones (such as the power to impose pecuniary sanctions for non-compliance with ECB regulations or decisions, pursuant to Council Regulation (EC) No 2532/98 of 23 November 1998).

Whereas the Draft guidance to banks on non-performing loans is not an instrument allowing the ECB to impose sanctions, its standards represent the ECB’s supervisory expectation for the future and non-compliance may trigger supervisory measures,[8] such as those articulated by Article 16 of the Capital Requirements Regulation. Thus, the standards of the Guide can be considered as de facto binding for SIs, who should plan ahead interventions on their internal organization and policies in order to be able to meet the requirements by the time the Guide’s final version will be publicly available.

The ECB Draft guidance to banks on non-performing loans

On 12 September 2016 the ECB has launched public consultation on the “Draft guidance to banks on non-performing loans”. The consultation has been closed on 15 November 2016 but the comments received by the ECB have not been published yet, and the Guide itself is still in its draft version.

As mentioned above, the Guide collects a number of best practices relating to the issue of non-performing loans. It includes seven Annexes, providing samples of criteria and practices relating to every phase of the NPL life cycle.

The term “non-performing loans”, as used by the Guide, refers to non-performing exposures (NPE), as defined by the European Banking Authority (i.e., exposures satisfying either or both the “90 days-past-due” and “unlikely-to-pay” criteria),[9] as well as to foreclosed assets and performing exposures with an elevated risk of turning non-performing.[10]

According to the Guide, SIs must develop a specific NPL strategy, on the basis of a comprehensive assessment of the operating environment, i.e. of internal capabilities (self-assessment) and external conditions. The strategy thus elaborated must include targets relating to the development of operational capabilities and projected NPL reductions over the short (indicative 1 year), medium (indicative 3 years) and long-term line horizons. An operational plan must be developed accordingly, approved by the management body and reviewed at least annually. Credit institutions with high levels of NPLs are expected to report their NPL strategy and operational plan to the banking authority in the first quarter of each calendar year.

The strategy and plan must be embedded in processes at all levels of organization, and human resources must be organized accordingly. Thus, for instance, the NPL Guide requires the creation of separate NPL workouts units (WUs), dealing with NPLs along their life cycle and composed by staff members with dedicated NPL expertise and experience. Technical resources must be also implemented, including automated monitoring processes of the loan status, with early warning signals and reporting.

Credit institutions must implement effective and efficient control processes for the NPL workout framework, involving three lines of defence. The first line of defence comprises control mechanisms within the NPL workout units, ensuring that the NPL policy is adequately embedded in daily processes. The second line must ensure that the first line of defence operates effectively: it comprises risk management and compliance functions and requires continuous monitoring and reviewing of NPL operating model’s performance. The third line comprises the internal audit function, which must conduct regular (i.e., at least annual) assessments to verify adherence of the NPL framework to the NPL policy. Annex 5 to the Guide provides key elements of NPL framework-related policies (such as arrears management policy, forbearance policy, debt recovery/enforcement policy) that should be implemented by high NPL banks.

An entire chapter of the Guide is dedicated to NPLs secured by immovable property held as collateral.[11] In the past, delays in assessing the decline of real estate value have proved to affect substantially credit institutions’ balance sheets. In fact, a high number of NPLs is secured by immovable property, and the value of the latter may significantly change over time. The Guide requires regular monitoring and reviewing of the valuations for collaterals, carried out by independent and qualified appraisers in accordance with the requirements set forth by Article 208(3) of the Capital Regulation Directive. It emphasizes the importance of maintaining the valuations for collaterals in line with market changes: thus, while establishing a minimum regular interval for updates (one year for commercial immovable property, three years for residential), it also requires credit institutions to carry out more frequent valuations where the market is subject to substantial negative changes and/or where there are signs of significant decline in the value of the individual collateral. In this last regard, banks are also required to establish their own criteria for determining whether a “significant decline” has taken place.

With regard to NPL impairment measures and write-offs, the Guide encourages credit institutions to align consistently with the standards set out by the Capital Requirements Regulation and Capital Requirements Directive, even when the institution is part of a group and some units of the group are not located in the EU.

Internal organization and timely intervention on NPLs

The Guide stresses the importance of adequate internal organization and coherent NPL policies, allowing timely intervention on NPLs. These aspects are particularly significant when it comes to dealing with high value NPLs, whereby the sums involved are significant (usually, because the loan is granted to enterprises/corporations). In this case, a good management of NPLs can affect both the bank’s capacity to conduct businesses profitably and the good functioning of the overall economy.

With regard to high value NPLs, measures aiming to restructuring are more appropriate than enforcement measures. However, in order to be effective, restructuring must be timely and conducted by staff with adequate expertise and experience. Restructuring is a process to which banks frequently turn too late (when the exposure has significantly worsened, making it more difficult for the borrower to repay the entire debt). For this reason, the Guide’s focus on the organization of human resources and on the timely recognition of NPLs should be appreciated: an increased attention by credit institutions to these aspects can positively affect the economic growth.

Conclusion

In the light of the best practices collected by the ECB in the Draft guidance to banks on non-performing loans, credit institutions subject to the Single Supervisory Mechanism must tackle NPLs by assessing the operating environment, developing and implementing a specific NPL strategy and an operational plan.

The Guide’s focus on internal organization and timely intervention on NPLs is particularly appreciated, as it favours solutions to the main issues contributing relating to the problem of NPLs at the bank level.

Whereas the Guide is not a binding instrument, compliance with its standards may trigger the imposition of supervisory measures by the ECB on Significant Institutions. For this reason, SIs should plan ahead interventions on their internal organization and policies in such a way as to be compliant with the Guide’s standards by the time its final version will be publicly available.

[1] For a technical definition of NPLs, infra sub n. 7 and 8

[2] For a general overview of the topic, see the ECB’s explanation at: https://www.ecb.europa.eu/explainers/tell-me/html/npl.en.html

[3] IMF Working Paper of the European Department Non-Performing Loans in CESEE: Determinants and Macroeconomic Performance, by Nir Klein, March 2013, p. 3 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2247224)

[4] ibid., p. 5

[5] Draft guidance to banks on non-performing loans, sub par 1.3

[6] Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, OJL 176, 27.6.2013, p. 1–33

[7] Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, OJL 176, 27.6.2013, p. 338–436

[8] Draft guidance to banks on non-performing loans, sub par 1.2

[9] See paragraph 145 of Annex V to the “Implementing Technical Standards on Supervisory Reporting” (ITS)

[10] Draft guidance to banks on non-performing loans, sub par. 1.3

[11] Draft guidance to banks on non-performing loans, sub par 7, “Collateral valuation for immovable property”

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Trump, torture and the United States’ obligations under international law

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

Introduction

            Donald Trump’s election as the next president of the United States has cast doubt on whether the United States will continue to comply with a variety of its different international human rights obligations. One issue in particular, Trump’s attitude towards the use of torture, could significantly diminish the United States’ compliance with its international treaty obligations.  This blog post examines the United States’ international obligations with regard to torture, and whether Trump’s policies as proposed through his campaign statements conform to those obligations.  It concludes that they do not and that if the United States reauthorises the use of torture it will be in violation of its international commitments.

Trump’s statements on torture

Donald Trump’s election as the next president of the United States has cast doubt on whether the United States will continue to comply with a variety of its different international human rights obligations. While significant post-election attention has been paid to how Trump’s proposed policies comport with domestic human rights law, it is also important to analyse whether his positions comply with international law.  One issue in particular, Trump’s position on the use of torture, could significantly diminish the United States’ compliance with its international (treaty) obligations.

Trump’s campaign rhetoric was fraught with contradictory and troubling statements regarding the use of torture. His initial statement on torture came on 25 November 2015, when, at a campaign rally he stated “[w]ould I approve waterboarding? You bet your ass I would. In a heartbeat. I would approve more than that.”On 17 February 2016, Trump asserted that “torture works”, that he believed in the efficacy of waterboarding and that the United States should employ “much stronger” types of torture than waterboarding when questioning suspected terrorists. On 4 March, Trump appeared to back away from that statement when he told the Wall Street Journal that, if elected, he would not order members of the military to violate international law. He almost immediately changed course again indicating on 6 March 2016 that the United States should expand its laws to authorise the use of greater forms of torture. Trump returned to the topic of torture at the end of June when he reaffirmed his affection for waterboarding as an interrogation technique and suggested that he “[doesn’t] think it is tough enough.”

Trump’s declaration that as president he would not ask American troops to violate international law appears anomalous when placed in the context of his other assertions on the issue of torture.  This is particularly true when one considers that he repeatedly advocated in favour of changing domestic law so as to permit a more expansive use of torture as an interrogation technique. However, United States’ law comprehensively bans the use of torture and it would be difficult for Trump to unilaterally alter those provisions.

The United States’ obligations

The prohibition against torture has its roots in the Eighth Amendment of the United States Constitution, which bans the use of cruel and unusual punishment, although there is an ongoing debate as to whether the Eighth Amendment is applicable in all situations involving torture. United States’ law also contains several different explicit prohibitions against torture. 18 U.S.C. §2340A forbids torture if it occurs outside of the United States and the perpetrator is either an American national or can be found in the United States following the alleged criminal act. Additionally, one of Barack Obama’s first acts after becoming president was to issue an executive order in which he specified that individuals detained in an armed conflict were to be treated humanely, were not to be subjected to torture and restricted all interrogation techniques to those discussed in the Army Field Manual 2-22.3. That executive order was reinforced by the McCain-Feinstein Amendment to the National Defense Authorization Act for FY 2016 which made the Army Field Manual 2-22.3 the single and standard guide for all interrogations conducted by American personnel or at American facilities of individuals detained during armed combat. The passage of this Amendment is significant as it eliminates the possibility of Trump unilaterally overruling President Obama’s Executive Order, necessitating Congressional action before torture could be authorised. These protections, together with the 2005 Detainee Treatment Act, which forbids the use of cruel, inhumane or degrading treatment or punishment against detainees, but stops short of banning torture outright, will make it difficult for Trump to permit the renewed use torture.

If Trump were to somehow re-authorise the use of torture under domestic law, those actions would violate the United States’ international obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture.  Article 7 of 1966 the International Covenant, which the United States ratified in 1992, unequivocally states “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This prohibition against torture was strengthened and made specific through the 1984 Convention Against Torture.  Signed by the United States in 1988 and ratified in 1994, the Convention Against Torture was introduced to combat the use of torture and inhuman or degrading treatment in recognition of the inherent dignity of human beings and the obligation to promote universal respect for human rights found in Article 55 of the Charter of the United Nations.

If taken at face value, always a danger when considering Trump’s statements, his policy regarding the use of torture would conflict with all three subsections of Article 2 of the Convention Against Torture.  Article 2(1) requires each State Party to the Convention to enact effective legislation, laws and administrative rules to prevent acts of torture from occurring in territory under its control. Trump’s statements propose just the opposite as he advocates in favour of laws designed to accommodate and encourage harsher forms of torture. Therefore, not only would Trump’s suggested policies not comply with Article 2(1), they would be directly contradictory to it as they would involve enacting laws and legislation designed to facilitate acts of torture.

Article 2(2) does not allow assertions of exceptional circumstances, including war, threat of war, public emergency or domestic political instability, to justify the use of torture. Trump’s statements make clear that he believes that expanding the laws relating to torture are justified to the extent that doing so is necessary in the context of the United States’ conflict with Islamic State. This is akin to invoking exceptional circumstances based on a state of war as Trump has essentially argued that the vicious tactics employed by Islamic State justify similar brutality on the part of the United States.  Therefore, his position does not comply with Article 2(2).

Article 2(3) of the Convention Against Torture forbids the invocation of orders from a superior officer as a justification for committing acts of torture. If Trump were to enact his stated policies regarding torture, the laws of the United States would not correspond to international law and the United States would find itself in breach of Article 2(3). That is because American service members are subject to the United States’ Uniform Code of Military Justice, Article 90 of which makes it a crime, sometimes punishable by death, to disobey the lawful command of a superior officer. If torture were legal under the laws of the United States, an order to commit torture would be a lawful command as it would be an order that is consistent with the law.  By making torture legal the United States will also legitimise superior orders as a justification for committing torture as the a member of the military will be required to carry out the commanded act as part of his her obligation under Article 90 of the Uniform Code of Military Justice.

To the extent that the United States is engaged in an armed conflict with Islamic State, any change to the United States’ practices regarding torture would also result in the violation of numerous provisions of the Geneva Conventions. The Geneva Conventions and their Additional Protocols outlaw torture in most instances involving armed combat.  Further, acts of torture as described in the Geneva Conventions and the Additional Protocols are considered grave breaches of each convention and, under Article 85 of the First Additional Protocol, those grave breaches can become war crimes. As a result, the decision to commit torture under any of these circumstances would violate the respective convention and might also be considered a war crime.

Above and beyond the United States’ treaty obligations is the fact that the prohibition against torture is considered jus cogens. As such, it is non-derogable and assumes a rank above treaty law and rules of ordinary customary international law. The classification of the prohibition against torture would have a two-fold effect on the United States.  First, it would serve to delegitimise any judicial, legislative or administrative act authorising torture on a national level. Second, those engaging in torture under relevant domestic laws would be exposed to prosecution in international jurisdictions or by a subsequent regime in the United States. This could result in potential repercussions against citizens of the United States that authorise or commit acts of torture, even if done under the pretext of positive national law.

Conclusions

Any change to American policy expanding the use of torture would be in direct contravention of jus cogens and its international treaty obligations.  Unfortunately, Trump has signaled a willingness to modify or opt out of treaty commitments that he believes do not directly benefit the United States and it is unlikely that he would allow the jus cogens nature of the prohibition against torture to constrain his actions as president. Although Trump has stated that he would not direct American troops to violate international law if elected president, his oft-repeated desire to expand the use of torture under domestic law weakens any argument suggesting that he might comply with international law on this issue.  Hopefully, Congress will resist any attempt by Trump to re-authorise the use of torture and the United States will continue to comply with the applicable international human rights standards.

Khalid Sheik Mohammed

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