Executive Authority Under the U.S. Constitution to Enter a Pandemic Treaty or Other International Agreement

Apr 8, 2022 | Content, Essays, Online Scholarship

Sam F. Halabi*

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Introduction

The devastating effects of the COVID-19 pandemic can be told in numbers. As of this writing, more than 4.5 million people worldwide have died, 219 million have been infected, and many face weeks, months, or years of “long COVID” recovery.^[1] For children, long COVID occurs for approximately ten to thirteen percent of cases, imposing potentially life-long disability.^[2] Economically, the productivity, job loss, and response costs exceed sixteen trillion dollars in the United States alone.^[3] The International Monetary Fund estimates that, through October 2020, the global cost stood at twenty-eight trillion dollars.^[4] Supply chain disruptions now vex every country in the world.

Nearly all governments agree that the numbers reflect a world that was poorly prepared when the new pathogen emerged and struggled to coordinate its response after the threat became clear. As a result, full recovery may be delayed by a decade or more.^[5] While vaccination rates have climbed to herd immunity thresholds in the wealthiest countries, ninety-five percent of the world’s population in low-income countries does not have access to a first dose.^[6] The World Health Organization (“WHO”) was disempowered from leading the global response and possessed few instruments to do so under the only existing international disease control agreement, the International Health Regulations (2005) (“IHR”), adopted after the global experience with SARS-CoV-1 in 2002–03.^[7]

Governments further agree that better coordination and communication between governments is necessary, but disagree on the form that improved coordination and communication should take. On March 30, 2021, the leaders of twenty-six countries, the WHO and the President of the European Council called for the World Health Assembly to consider the adoption of a pandemic treaty, given the glaring gaps in the national and global responses to the COVID-19 pandemic.^[8] In May 2021, the seventy-fourth session of the World Health Assembly took the extraordinary measure of calling a Special Session, scheduled for November 29–December 1, 2021, to consider precisely such a legal instrument.^[9] The United States has remained circumspect with regard to a formal treaty, publicly articulating support for a revision of the IHR (2005) and some improvements to governance, for example, more transparent decision-making about the declaration of emergencies and recommended measures, at the WHO, while remaining open to the development of a new international agreement.^[10] This Essay aims to clarify what the United States may and may not do under its domestic constitutional framework, both to inform its global partners and to shed light on how the U.S. Constitution structures international affairs during emergencies.

This analysis prioritizes what is possible. What the United States ultimately determines is in the interest of its citizens may differ. The United States, for example, may simply determine that a comprehensive and binding treaty is not in its interest. The issue of vaccine access has featured prominently in the global conversation leading to the declaration that a pandemic agreement may be necessary.^[11] Any visibility as to vaccine access and equity would cast the United States in a poor light, to say nothing of the substantive provisions of a treaty addressing vaccine access, which could affect the profitability and flexibility of companies based in the United States. Over the course of the pandemic, U.S.-based companies developed three of the four most successful vaccines and, in its contracts for their procurement, the U.S. government prohibited the possibility that doses might be shipped elsewhere, even to those countries that may be in desperate need.^[12] The United States may in fact favor the establishment of a new treaty, but insist on certain reforms at the WHO governance level before entrusting it with new and perhaps powerful authority to prevent, prepare for, and respond to, future pandemics.^[13] The United States may also be staking out a preliminary position of neutrality, so that even its willingness to join may secure benefits from its participation in negotiation.^[14]

Just as relevant is how the U.S. negotiating position will be shaped by its domestic constitutional framework. The U.S. Constitution charges the President with responsibility for serving as the voice of the country in international affairs, with an important role for Congress, and much less so the U.S. Supreme Court.^[15] Article I vests Congress with authority over most matters that require the raising and expenditure of revenues, the regulation of the armed forces, the definition of the content and relevance of international law, and the regulation of foreign commerce.^[16]

Article II vests authority with the President to negotiate treaties, although two-thirds of the Senate must concur with the treaty text in order for it to become law.^[17] Separately, Article II authorizes the Executive to “receive Ambassadors,” which is generally interpreted to mean that the President is entrusted with the authority to recognize foreign governments and relatedly, conduct diplomacy.^[18] The President is also the Commander-in-Chief, giving him independent authority with respect to national security.^[19]

With respect to the judiciary, Article III dedicates to the U.S. Supreme Court original jurisdiction over certain matters affecting foreign relations, but the Court largely plays a peripheral role in the formation and execution of foreign policy and avoids adjudication of “political questions” about foreign policy dedicated to Congress and the President.^[20] For example, the U.S. Supreme Court has determined that it is not competent to determine whether the U.S. Senate must concur with a President’s decision to exit a treaty, even though it is constitutionally clear they must do so in order to join the same treaty.^[21]

Despite the availability of a specific constitutional mechanism to govern treaty relations, the presidentially negotiated, Senate-confirmed treaty has fallen into desuetude. Since the Franklin D. Roosevelt administration, only six percent of international agreements have gone through the Senate ratification process.^[22] While the last Senate-confirmed treaty was the New START treaty with Russia, other agreements have been adopted through both chambers of Congress with the support of more than two-thirds of the Senate.^[23] It is clear from the composition and statements from current U.S. Senators that a pandemic treaty has no chance of achieving two-thirds concurrence of the chamber as it is now comprised.^[24]

Outside the treaty process, the President may nevertheless conclude agreements, including so-called congressional-legislative agreements accomplished with varying levels of assent by Congress, and sole executive agreements, concluded within the scope of the President’s Article II authority. These kinds of agreements have been used since the Founding and are the most likely routes to U.S. participation in an international pandemic agreement.

The United States has faced this situation before. It joined the Paris Climate Accords through negotiation by the President (through the Secretary of State) carefully crafting its legal position to fall within domestic authorities. The President enjoyed his widest authority for provisions governed by the U.N. Framework on Climate Change (which the Senate ratified in 1992) and the Clean Air Act (which Congress had adopted by large majorities in 1970).^[25] The President’s position was similarly strong with respect to provisions that affected information-sharing, which has been interpreted as authorized by Article II since the adoption of the U.S. Constitution.

The purpose of this Essay is to identify how the United States may join an international pandemic agreement, especially when both congressional chambers are so evenly divided, and one party has so clearly expressed its pessimism about a pandemic treaty as well as international agreements in general, leaving the most likely constitutional pathways presidential action based in existing statutory authorizations or the exercise of sole presidential authority under the U.S. Constitution.^[26]

I. The U.S. Constitutional Framework

This Part analyzes the constitutional framework for how the U.S. may enter into international agreements: the dedicated treaty process between the President and the Senate; explicit and implicit agreement between the President and both congressional chambers; and sole executive authority based on Article II powers.

A. Treaties

The U.S. Constitution authorizes the President to “make Treaties” provided that “two thirds of the Senators present concur.”^[27] Once properly adopted, treaties become binding federal law, just like statutes adopted through bicameral deliberation and signature by the President.^[28] While the importance of treaties as federal law is made clear in the constitutional text, especially the Supremacy Clause, the Founders never envisioned them as the exclusive means by which the United States would enter into international agreements. More importantly, the effect of treaties is legally divided between their internal effect, where they may impart individually enforceable rights, and their external effect, where they influence the relationship of the United States to international partners including both foreign governments and international organizations.^[29]

Because the Founders never intended for the Presidential-Senatorial treaty-making process to serve as the only channel for formalizing international commitments that could bind the United States internationally, they also addressed different forms of international agreement, particularly in Article I.^[30] The treaty process was intentionally arduous given the potential to create federal law without the House of Representatives.^[31] Agreements made with the consent of the Senate are historically rare. Nearly ninety percent of international agreements (approximately 15,000 agreements) that the United States has entered since World War II have been approved outside the constitutional treaty process.^[32]

B. Congressional-Executive Agreements

In addition to treaties, Article I, Section 10 of the U.S. Constitution speaks of “agreements,” “compacts,” “confederations,” and “alliances,” all of which the United States used from its earliest years as a constitutional republic. Fifty years from its founding, the United States concluded nearly thirty published executive agreements outside of the treaty process.^[33]

These other forms of approving international agreements fall into two general categories: congressional-executive (or legislative-executive) agreements and sole executive agreements, created under the President’s own constitutional authority to “take care” that the United States’ laws be faithfully enforced^[34] and pursuant to responsibilities collectively understood as the President’s foreign affairs power.^[35] Constitutionally, the President may enter into an executive agreement, which may be defined as a “treaty” under international law, even if it could not be used to justify enforceable rights vis-à-vis states or individuals within U.S. territory or as understood within the meaning of Article VI’s Supremacy Clause.^[36]

1. Current Statutory Authority

When Congress adopts statutes, they may and often do shape the President’s authority to conduct diplomacy, for example authorizing sanctions, or encouraging support of international organizations. Congress has adopted a number of statutory provisions that authorize the President to undertake broad coordinating action to advance global health. Current statutory authorizations include language that the President, Secretary of State, and Secretary of Health and Human Services may consult when deliberating the content of an international pandemic agreement.

For example, when Congress authorized the United States to join the WHO, it recognized the “widespread prevalence, debilitating effects, and heavy toll in human life” of the “diseases of mankind,” and declared “it to be the policy of the United States to continue and strengthen mutual efforts among the nations for research against [such] diseases.”^[37]

Moreover, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 directed the President to “establish[] a roadmap to link investments in specific disease programs to the broader goals of strengthening health systems and infrastructure and to integrate and coordinate HIV/AIDS, tuberculosis, or malaria programs with other health or development programs, as appropriate.”^[38] Similarly, the Pandemic and All-Hazards Preparedness Act of 2006 and the Pandemic and All-Hazards and Advancing Innovation Act of 2019 provided broadly worded congressional authorizations for the United States to engage and support international organizations and partners with respect to national security threats posed by infectious and anti-microbial resistant diseases.^[39] All of this language could be used to justify specific commitments under a pandemic treaty.

This is almost precisely how President Obama joined the Paris Climate Accords in in 2016 (and how President Biden anchored rejoining in 2021). In negotiating the Paris Agreement, the Executive Branch based its authority upon (1) the President’s plenary constitutional power in the foreign affairs field; (2) federal legislation, particularly the Clean Air Act; and (3) existing treaties, most importantly the 1992 Framework Convention on Climate Change, which the United States under President George H.W. Bush joined with relatively rapid Senate consent.^[40] The text of the Paris Agreement distinguishes between the mandatory “shall”—indicating binding legal obligations—and the precatory “should”—indicating non-binding political statements.^[41] The U.S. delegation succeeded in tailoring the text to the scope of the President’s constitutional exercise of his authority as it was then interpreted.^[42]

2. Advanced Congressional Authorization

Congress may also authorize the President’s conduct of diplomacy in advance. While current statutory authority provides one body of law through which the President may shape pandemic treaty provisions, an alternative route is to obtain advance authorization from Congress, by simple majorities, for broad authority leading to the pandemic negotiations.^[43] This is how trade agreements have been concluded for over a century.^[44] In 1890, Congress authorized the President to bargain over reciprocity in tariff reductions with foreign governments with no requirement of subsequent legislative implementation.^[45] In 1934, Congress authorized the President to not only bargain freely over tariff reductions, but to address other barriers to international trade and accomplish reductions through proclamation.^[46]

Congress could also adopt so-called fast-track authority used for more current international trade agreements. Fast-track authority is the delegation of authority by Congress ex ante so that the President may pick negotiating partners, set terms of accords, sign, and enter into them, draft implementing bills that advise the congressional process, limit debate, prohibit amendments, and abbreviate periods for up-or-down votes.^[47] This was the approach for the original North American Free Trade Agreement in 1993 and its revision as the United States-Mexico-Canada Agreement in 2018.^[48]

Such authority could be added to legislation currently circulating in Congress aimed at addressing pandemic preparedness and response. The Global Health Security Act of 2021 provides for activities to be conducted acting through the Director of the Centers for Disease Control and Prevention to combat SARS-CoV-2, COVID-19, and other emerging infectious disease threats globally, including efforts related to global health security, disease detection and response, health protection, immunization, and coordination on public health.^[49]

C. Sole Executive Agreements

Finally, the President enjoys authority under Article II to conduct foreign relations without any congressional authorization. Since at least 1996, the U.S. President has issued executive orders tying his authority over national security determinations to the threat posed by infectious diseases. In 1996, President Bill Clinton identified new and emerging infectious diseases as a national security threat and ordered interagency cooperation led by the U.S. Centers for Disease Control and Prevention.^[50] Most importantly, the order committed the United States to the revision of the IHR, at that time a relatively limited international instrument committed to the surveillance and quarantine of only six diseases.^[51]

On his first day in office, President Biden issued an executive order requiring the Assistant to the President for National Security Affairs (“APNSA”) to: “coordinate the Federal Government’s efforts to address such threats and to advise the President on the global response to and recovery from COVID-19, including matters regarding: the intersection of the COVID-19 response and other national security equities; global health security; engaging with and strengthening the World Health Organization; public health, access to healthcare, and the secondary impacts of COVID-19; and emerging biological risks and threats, whether naturally occurring, deliberate, or accidental.”^[52]

The United States joined the world’s most developed international infectious disease agreement, the IHR (2005), on the basis of its membership in the World Health Organization, and that body’s authority under Article 21 of its Constitution to adopt regulations in specific areas of international health delegated to it.^[53] Arguably, U.S. participation in the IHR included tacit authorization from Congress as well, but because Congress authorized U.S. entry into the WHO, there was no subsequent need for the President to independently seek congressional authorization for the IHR’s adoption.

Even had Congress not played a background role, the United States joined the IHR out of national security interests articulated by the Executive Branch. Over the course of the late 1990s and early 2000s, infectious disease threats to global security proliferated, as did efforts to hide or obfuscate them.^[54] The resurgence of cholera in South America, plague in India, and Ebola in Africa, as well as the emergence of HIV as a global pandemic, encouraged global unity in the belief that an international agreement was needed to address local infectious disease outbreaks that increasingly crossed international borders.^[55] In 2000, the U.N. Security Council recognized for the first time an infectious disease, HIV/AIDS, as an international peace and security matter.^[56] The precursor to the Security Council’s decision was the U.S. National Intelligence Council’s report emphasizing potential ramifications on international stability, which stated that “the persistent infectious disease burden is likely to aggravate and in some cases, may even provoke economic decay, social fragmentation and political destabilization in the hardest hit countries in the developing . . . world[].”^[57]

The President therefore possesses significant independent authority under the U.S. Constitution to address global disease threats to international security, although, as outlined above, he is limited with respect to his ability to dedicate financial resources. Indeed, the IHR itself does require commitments to strengthening the health system, advancing disease surveillance, and regulating of ports of entry, but the United States already had such systems in place when it joined.^[58] Outside of core disease detection and response capacities, the IHR largely committed the United States to information sharing, which has long been a proper source for sole executive action.^[59] The content and process of pandemic treaty negotiations will be shaped by current international agreements, including the IHR (2005), which the United States joined as a sole executive agreement through its accession to WHO authority.

II. The Content of the Pandemic Treaty and the Legal Pathways for U.S. Participation

The components of a pandemic treaty are still under intense negotiation. At the very least, such a treaty would include provisions related to surveillance for new and reemerging pathogens, access to vaccines, international biosafety, an international system for monitoring and compliance, and information sharing with respect to a number of classes of data including research on diagnostics, therapeutics and vaccines.^[60] Each of these aspects of the pandemic treaty will implicate a variety of sources of legal authority for the President to consult, if, as is likely, there is not sufficient support in the U.S. Senate for a binding treaty under Article II of the U.S. Constitution. The following issues have been frequently raised and, while not exhaustive, provide a representative list of issues the Executive will need to consider using the constitutional framework articulated above. The constitutional authorities described above will shape components of an agreement in the following ways.

A. Biosafety

The two leading theories regarding COVID-19’s origin are that the virus was transmitted from mammalian species to humans or through a leak from a biomedical research facility. Without engaging in the protracted debate as to origin of SARS-CoV-2 and prevention of future pandemics, an international agreement, even a non-binding one, may better prepare the world for the possibility of breaches in biosafety research with international ramifications. There are a finite number of research facilities worldwide that manage dangerous pathogens generally characterized as BSL-3 or BSL-4 in the laboratory context.^[61] Published international guidance documents governing biosafety practices, such as inspection and early warning technologies,^[62] could be codified in an international agreement.

With respect to U.S. participation, biosafety is an area where the President enjoys significant treaty and statutory authority. For example, the United States is already a party to the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, so any aspect of a pandemic treaty that implicated a dedicated corps of inspectors for so-called “dual-use” research would provide an independent source of authority for the United States to join.^[63] The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 similarly authorizes a number of measures the President, the Secretary of Health and Human Services, and the Secretary of Agriculture may take with international partners and organizations on biosafety matters.^[64]

B. Vaccine Access

The inequitable access to and distribution of COVID-19 vaccines constitutes the most important challenge facing the global COVID-19 response. Low- and middle-income countries asked to coordinate with wealthier countries and international organizations have lost nearly all trust in international legal instruments and actors as the investments they made in the IHR (2005) core capacities did not result in access to the most important medical intervention. Although both governments and public health professionals have confirmed that the world cannot fully reopen until the global population reaches herd immunity, wealthy countries continue to hoard vaccines and related technology.

The President’s authority over sharing finished vaccine doses, as opposed to the technology that makes them possible, is shaped by international agreements (although not Article II treaties) and existing statutory frameworks. The Defense Production Act authorizes the President, largely through executive orders, to direct private companies to prioritize orders from the federal government.^[65] The President is also empowered to “allocate materials, services, and facilities” for national defense purposes, and take actions to restrict hoarding of needed supplies.^[66] To bolster domestic production, the President may also offer loans or loan guarantees to companies, subject to an appropriation by Congress; make purchases or purchase commitments; and install equipment in government or private factories.^[67] As Rizvi and Kapczynski write, the scope of the DPA has expanded since its World War II origins to include “‘military or critical infrastructure assistance to any foreign nation,’ and ‘critical infrastructure assistance and protection’ (which includes systems and assets, the degradation of which would have a debilitating impact on ‘national public health’), as well as ‘emergency preparedness activities.’”^[68]

In 2011, the United States acceded to the Pandemic Influenza Preparedness Framework, which authorized the WHO to enter into agreements with academic institutions and pharmaceutical companies.^[69] In exchange for access to influenza samples submitted to the WHO’s Global Influenza Surveillance and Response System, companies agree to donate real-time production of vaccines.^[70] Currently, the agreement is limited to “pandemic influenza,” but part of the treaty negotiations may expand the agreement to include all pathogens with pandemic potential.^[71] As of 2021, seventy-one “standard material transfer agreements” (“SMTAs”) had been entered into by the WHO, twenty-nine of which promised benefits like real-time vaccine production.^[72] The United States could join other Member States to expand the PIP Framework to cover all pathogens with pandemic potential.

Not only could the United States join an Article 23 consensus expansion of the PIP Framework to all pathogens, as it did with the initial agreement, but it could use its statutory authority over technologies developed with its support to require that U.S.-funded biomedical companies share products or know-how with a global system. Pursuant to the U.S. Bayh-Dole Act of 1980, for example, inventions that receive federal funding belong to the U.S. government unless the recipients commit to commercialize the invention and agree to the government’s reservation of certain rights.^[73] These include rights to protect the public against non-use or unreasonable use of publicly funded inventions.^[74] One right is the government’s non-transferable right to royalty-free use of publicly funded inventions for or on behalf of the United States.^[75]

Under the Bayh-Dole Act, march-in rights are only to be used when (1) the contractor fails to take effective steps to achieve practical application of the invention or (2) they are necessary to alleviate health or safety needs which are “not reasonably satisfied.”^[76] No administration or executive agency has ever used these march-in rights and there has never been a successful petition for the use of march-in rights in the four decades of their existence.^[77] However, they may serve as a basis for U.S. support of such provisions in a new international agreement.^[78]

C. Intellectual Property

COVID-19 vaccines, especially the most efficacious of them produced in Europe and North America, are protected by a range of intellectual property protections: patents, trade secrets, and proprietary know-how essential to low-cost manufacturing elsewhere. The President enjoys wide authority, however, over the intellectual property protections that cover the ability to develop downstream diagnostics, therapeutics, and vaccines now concentrated in the wealthier countries in Europe, North America, and East Asia. One of the obvious ways to address intellectual property barriers to COVID-19 vaccine access is to, temporarily or permanently, do away with intellectual property protections for the technologies used to produce them. Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), the international agreement establishing high floors for intellectual property protection, for example twenty-year protections for patents, is one of the most important of these barriers.^[79]

When Congress authorized the United States to join TRIPS, it also allowed the President to waive provisions of the agreement without expressly requiring congressional action or approval before the U.S. Trade Representative (“USTR”) agreed to such waivers. If a proposed waiver “would substantially affect the rights or obligations of the United States under the WTO Agreement . . . or potentially entails a change in Federal or State law,” then the USTR must first seek advice from “appropriate congressional committees” before it votes on the waiver in the WTO.^[80] When the WTO approves a proposed waiver, the USTR submits a report describing the waiver to those congressional committees and consult with them regarding the report.^[81]

As such, the President is authorized under the current governing statute to issue broad waivers with respect to intellectual property protections for vaccine technologies. While there may be additional, complicating political factors, especially from domestic constituencies (for example, pharmaceutical companies), this aspect of U.S. engagement is already codified presidential authority.

D. Information Sharing

In order to even assess likely threats to national security and to perform functions envisioned by Article II, the President must have authority to gather, receive, and transmit information. The President has virtual plenary authority with respect to information necessary to inform national security decisions.^[82] Presidents also rely on other clauses to support their foreign policy actions, particularly those that bestow “executive power” and the role of “commander in chief of the army and navy” on the office. From this language springs a wide array of associated or “implied” powers. For instance, from the explicit power to appoint and receive ambassadors flows the implicit authority to recognize foreign governments and conduct diplomacy with other countries generally.^[83] From the commander-in-chief clause flows the power to use military force and collect foreign intelligence.^[84]

In United States v. Curtiss-Wright Corp., the U.S. Supreme Court held that President Franklin D. Roosevelt acted within his constitutional authority when he brought charges against the Curtiss-Wright Export Corporation for selling arms to Paraguay and Bolivia in violation of federal law.^[85] The President is “the sole organ of the federal government in the field of international relations,” Justice Sutherland wrote, on behalf of the Court.^[86] “[H]e, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of [national emergencies].”^[87] Thus, under Curtiss-Wright, the President’s authority under the Constitution during emergencies is plenary.

Under this and related precedents, the United States operated within maximum Article II authority in the context of information sharing under the Paris Climate Accords. Many of the binding obligations in the Paris Agreement involve reporting of emissions, progress in implementation, and accounting for emissions.^[88] As explained above, exchanging information with other states is a Constitutional power of the President as Chief Executive and the United States’ top diplomat, or the “sole organ” of the Nation in dealing with foreign governments. Therefore, even in the absence of express statutory or treaty authority, the President may engage in information exchange and cooperation with foreign governments.^[89]

Conclusion

The outcome of the World Health Assembly for the United States will depend not only on the priorities given to certain weaknesses in the global legal framework leading to the COVID-19 pandemic, but the constitutional framework that shapes the legal possibilities for what the President is authorized to include. As this Essay has shown, a pandemic treaty, at least one achieved through presidential signature and two-thirds concurrence by the Senate, is not likely. However, a significant body of law dating back to the U.S. entry into the WHO and independent executive authority open up possibilities for the United States to contribute to, and one day join, a legally binding international agreement on pandemic prevention and response. The President may carefully analyze existing statutory authorities to shape the U.S. position on biosafety, intellectual property, and access to vaccines. With respect to the sharing of information, the President enjoys significant Article II authority to negotiate provisions without congressional authorizations. Together, these constitutional constraints will guide the U.S. position on one or more international agreements governing pandemics as well as the specific provisions within each of them.

[1] Daniel E. Slotnik, The World’s Known Covid Death Toll Passes Four Million., N.Y. Times (July 8, 2021), https://www.nytimes.com/2021/07/08/world/covid-death-toll-four-million.html; Total number of global cases of coronavirus surpasses 219 million, Inter Press News (Sep. 2, 2021, 10:17 AM), https://www.interpressnews.ge/en/article/115416-total-number-of-global-cases-of-coronavirus-surpasses-219-million.

[2] Dyani Lewis, Long COVID and Kids: Scientists Race to Find Answers, Nature (July 14, 2021), https://www.nature.com/articles/d41586-021-01935-7.

[3] David M. Cutler & Lawrence H. Summers, The COVID-19 Pandemic and the $16 Trillion Virus, JAMA (Oct. 12, 2020), https://jamanetwork.com/journals/jama/fullarticle/2771764.

[4] Larry Elliott, IMF Estimates Global Covid Cost at $28tn in Lost Output, The Guardian (Oct. 13, 2020), https://www.theguardian.com/business/2020/oct/13/imf-covid-cost-world-economic-outlook.

[5] Org. for Econ. Co-op. & Dev., Coronavirus (COVID-19) Vaccines for Developing Countries: An Equal Shot at Recovery 5, 10–11 (2021), https://read.oecd-ilibrary.org/view/?ref=1060_1060300-enj5o5xnwj&title=Coronavirus-COVID-19-vaccines-for-developing-countries-An-equal-shot-at-recovery.

[6] Anna Rouw et al., Tracking Global COVID-19 Vaccine Equity, Kaiser Fam. Found. (Jul. 21, 2021), https://www.kff.org/coronavirus-covid-19/issue-brief/tracking-global-covid-19-vaccine-equity/.

[7] Stephen T. Green & Lorenzo Cladi, Rapid Response: Should the WHO’s Chronic Disempowerment and Impecuniousness Concern Us?, BMJ (Apr. 27, 2020), https://www.bmj.com/content/369/bmj.m1502/rr-1.

[8] Lawrence O. Gostin, Sam F. Halabi & Kevin A. Klock, An International Agreement on Pandemic Prevention and Preparedness, JAMA (Sept. 15, 2021), https://jamanetwork.com/journals/jama/fullarticle/2784418.

[9] World Health Org. [WHO], Special Session of the World Health Assembly to Consider Developing a WHO Convention, Agreement or Other International Instrument on Pandemic Preparedness and Response, ¶ 3, A74/A/CONF./7 (May 25, 2021), https://apps.who.int/gb/ebwha/pdf_files/WHA74/A74_ACONF7-en.pdf.

[10] Anthony J. Blinken & Xavier Becerra, Strengthening Global Health Security and Reforming the International Health Regulations, JAMA (Aug. 31, 2021), https://jamanetwork.com/journals/jama/fullarticle/2783866.

[11] WHO, supra note 9, ¶ 1; The World Must Learn from COVID before diving into a Pandemic Treaty, 592 Nature 165, 65–66 (noting the prominence of vaccine access as one of four key areas the pandemic treaty must address).

[12] Katherine Eban, “We Are Hoarding”: Why the U.S. Still Can’t Donate COVID-19 Vaccines to Countries in Need, Vanity Fair (Apr. 6, 2021), https://www.vanityfair.com/news/2021/04/why-the-us-still-cant-donate-covid-19-vaccines-to-countries-in-need.

[13] U.S. Proposal on Targeted Amendments to the International Health Regulations, 2021 (policy position on file with author).

[14] It has been a long-held tactic of the United States to participate in treaty negotiations, even if it ultimately never joins the treaty it helped draft. See Antonia Chayes, How American Treaty Behavior Threatens National Security, 33 Int’l Sec. 45 (2008). The U.N. Convention on the Law of the Sea is an archetypal case of such behavior. Id. See also U.S. Signature to the 1998 Rome Statute of the International Criminal Court (Dec. 31, 2000) (noting that the United States was signing with the intention to further influence the drafting of the final text).

[15] See, e.g., United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–55 (1952) (Jackson, J., concurring).

[16] U.S. Const. art. I, § 8.

[17] Id. art. II, § 2.

[18] Id. § 3.

[19] Id. § 2.

[20] Louis Henkin, Foreign Affairs and the Constitution 26–27 (1972); Atlee v. Richardson, 411 U.S. 911 (1973), aff’g Atlee v. Laird, 347 F. Supp. 689 (E.D. Pa. 1972).

[21] Goldwater v. Carter, 444 U.S. 996 (1979). While the Court considered the case non-justiciable under the posture presented to it, Justice Powell suggested that a valid Senate resolution contesting the President’s action may be justiciable. See id. at 998–1001 (Powell, J., concurring). Under current law, there is no official ruling on whether the President has the power to break a treaty without the approval of Congress, but, relatedly, it is likely that any subsequent Court would find the matter dedicated to the political branches.

[22] Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate 39 (2001), https://www.govinfo.gov/content/pkg/CPRT-106SPRT66922/pdf/CPRT-106SPRT66922.pdf.

[23] See, e.g., Free Trade Agreement, S. Kor.-U.S., Jun. 30, 2007, https://ustr.gov/trade-agreements/free-trade-agreements/korus-fta.

[24] Elaine Ruth Fletcher, United States Holds Back on Bold Move Toward Pandemic Treaty, Health Pol’y Watch (May 21, 2021), https://healthpolicy-watch.news/exclusive-us-still-holding-back-on-bold-move-toward-pandemic-treaty/.

[25] 42 U.S.C. §§ 7401–7671.

[26] 22 U.S.C. § 290e (“The Congress of the United States, recognizing that the diseases of mankind, because of their widespread prevalence, debilitating effects, and heavy toll in human life, constitute a major deterrent to the efforts of many peoples to develop their economic resources and productive capacities, and to improve their living conditions, declares it to be the policy of the United States to continue and strengthen mutual efforts among the nations for research against diseases such as heart disease and cancer. In furtherance of this policy, the Congress invites the World Health Organization to initiate studies looking toward the strengthening of research and related programs against these and other diseases common to mankind or unique to individual regions of the globe.”).

[27] U.S. Const. art. II, § 2.

[28] Id. art. VI.

[29] See Asakura v. City of Seattle, 265 U.S. 332, 342–43 (1924).

[30] Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1137 (1987).

[31] In Missouri v. Holland, the U.S. Supreme Court validated the use of the treaty process to regulate state authority over migratory birds which had been determined to be impermissible as an overreach of federal authority when adopted pursuant to statute. Missouri v. Holland, 252 U.S. 416 (1920). That decision was left undisturbed by Bond vs. United States, although in that decision the Supreme Court concluded that there must be a clear statement from Congress if the intent is to disturb the otherwise settled boundary between state and federal authority. Bond v. United States, 572 U.S. 844, 858–61 (2014).

[32] Nigel Purvis, The Case for Climate Protection Authority, 49 Va. J. Int’l L. 1007, 1018 (2009).

[33] Peter L. Fitzgerald, Executive Agreements and the Intent Behind the Treaty Power, 2 Hastings Const. L.Q. 757, 758 (1975).

[34] U.S. Const. art II, § 3.

[35] See id. §§ 1–3; U.S. Dep’t of State, 11 Foreign Affairs Manual § 723.2-2(C) (2006).

[36] See Annotation 12 – Article II, FindLaw, https://constitution.findlaw.com/article2/annotation12.html (last visited Mar. 23, 2022).

[37] 22 U.S.C. § 290e.

[38] United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. 7604, § 101(a)(3).

[39] Pandemic and All-Hazards Preparedness Act, Pub. L. No. 109-417, 120 Stat. 2831 (2006); Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019, Pub. L. No. 116-22, 133 Stat. 905 (2019).

[40] David A. Wirth, Is the Paris Agreement on Climate Change a Legitimate Exercise of the Executive Agreement Power?, Lawfare (Aug. 29, 2016), https://www.lawfareblog.com/paris-agreement-climate-change-legitimate-exercise-executive-agreement-power.

[41] Id.

[42] Id.

[43] Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l. L. 247, 283 (2012).

[44] Wallace McClure, International Executive Agreements 41, 83–92, 173–89 (1941).

[45] Tariff Act of 1890, § 3, 26 Stat. 567, 612.

[46] See Trade Expansion Act of 1962, 19 U.S.C. § 1821; Trade Act of 1974, as amended, 19 U.S.C. §§ 2111, 2115, 2131(b), 2435.

[47] 19 U.S.C. §§ 2191–2194.

[48] Laura Wright, Trade Promotion Authority; Fast Track for the Twenty-First Century, 12(3) Wm. & Mary Bill Rts. J. 979, 987 (2004) (analyzing this authority for NAFTA); Lisa M. Richman, The Investment Treaty Arbitration Review: NAFTA and USMCA: The Next Stage of the Saga, The L. Revs. (June 18, 2021), https://thelawreviews.co.uk/title/the-investment-treaty-arbitration-review/nafta-and-usmca-the-next-stage-of-the-saga (analyzing the authority for USMCA).

[49] Global Health Security Act of 2021, H.R. 391, 117th Cong. (2021).

[50] Presidential Decision Directive on Emerging Diseases 2, 4, PDD/NSTC-7 (June 12, 1996), https://irp.fas.org/offdocs/pdd/pdd-nstc-7.pdf.

[51] Id. at 5.

[52] Exec. Order No. 13987, 86 Fed. Reg. 7019 (Jan. 20, 2021).

[53] Constitution of the World Health Organization art. 21, July 22, 1946, 62 Stat. 2679, 14 U.N.T.S. 185.

[54] Don Noah & George Fidas, The Global Infectious Disease Threat and its Implications for the United States, 99 Nat’l Intel. Estimate 1, 5 (2000), https://www.dni.gov/files/documents/infectiousdiseases_2000.pdf (“New and reemerging infectious diseases will pose a rising global health threat and will complicate US and global security over the next 20 years.”); David E. Bloom & Daniel Cadarette, Infectious Disease Threats in the Twenty-First Century: Strengthening the Global Response, 10 Frontiers in Immunology (Mar. 28, 2019), https://www.frontiersin.org/articles/10.3389/fimmu.2019.00549/full (“While rapid transmission of resistant pathogens is unlikely to occur in the same way it may with pandemic threats, the proliferation of superbugs is making the world an increasingly risky place.”).

[55] Sam Halabi, Rebecca Katz & Amanda McClelland, International Institutions and Ebola Response: Learning from the 2017 Outbreak in the Democratic Republic of Congo, 64 St. Louis U. L.J. 91, 94 (2019).

[56] U.N. GAOR, 55th Sess., 4087 mtg., U.N. Doc. S/PV.4087 (Jan. 10, 2000); S.C. Res. 1308, preamble (July 17, 2000).

[57] Nat’l Intelligence Council, NIE 99-17D, The Global Infectious Disease Threat and Its Implications for the United States 9 (2000), https://www.dni.gov/files/documents/infectiousdiseases_2000.pdf; see also Alex de Waal, The Art of Medicine: HIV/AIDS and the Challenges of Security and Conflict, 375 Lancet 22, 22 (2010).

[58] International Health Regulations, art. 5 (surveillance), art. 28 (points of entry), Annex I (core capacities encompassing health systems), May 23, 2005, 2509 U.N.T.S. 79.

[59] Id. arts. 6–7 (notification and information sharing).

[60] Gostin, Halabi & Klock, supra note 8.

[61] See generally World Health Org., Laboratory Biosafety Manual (3d ed. 2004), https://www.who.int/csr/resources/publications/biosafety/Biosafety7.pdf.

[62] Id.

[63] The Laws of Armed Conflicts: A Collection of Conventions, Resolutions, and Other Documents 137–42 (Dietrich Schindler & Jirí Toman eds., 3d ed. 1988).

[64] See, e.g., Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, § 335(a)(4), 116 Stat. 594, 680 (2002).

[65] Defense Production Act of 1950, as Amended, 50 U.S.C. §§ 4501–4568.

[66] 50 U.S.C. §§ 4511–4512.

[67] Anshu Siripurapu, What Is the Defense Production Act?, Council on Foreign Rels. (last updated Dec. 22, 2021), https://www.cfr.org/in-brief/what-defense-production-act.

[68] Zain Rizvi, Jishian Ravinthiran & Amy Kapczynski, Sharing The Knowledge: How President Joe Biden Can Use the Defense Production Act to End the Pandemic Worldwide, Health Affs. (Aug. 6, 2021), https://www.healthaffairs.org/do/10.1377/forefront.20210804.101816/full/.

[69] The PIP Framework was enacted through an Article 23 WHA Recommendation. Those are generally achieved through consensus. The U.S. joined this consensus. Nat’l Acads. of Scis., Eng’g, & Med., The Development of the PIP Framework: Global Lessons on Equity and Fairness for Pandemic Preparedness, in Exploring Lessons Learned from a Century of Outbreaks: Readiness for 2030 (A. Nicholson et al. eds., 2019), https://www.ncbi.nlm.nih.gov/books/NBK544063/.

[70] World Health Org., Pandemic influenza preparedness framework for the sharing of influenza viruses and access to vaccines and other benefits 34 (2nd ed. 2022); see also Sam F. Halabi, Viral Sovereignty, Intellectual Property, and the Changing Global System for Sharing Pathogens for Infectious Disease Research, 28(1) Annals Health L. 101, 124 (2019)

[71] See World Health Assembly, Pandemic Influenza Preparedness: Sharing of Influenza Viruses and Access to Vaccines and Other Benefits, Res. WHA60.28 (May 23, 2007), https://www.who.int/csr/don/archive/disease/influenza/A60_R28-en.pdf.

[72] Standard Material Transfer Agreements 2 (SMTA2), World Health Org., https://www.who.int/initiatives/pandemic-influenza-preparedness-framework/standard-material-transfer-agreement-2-(smta2) (last visited Mar. 23, 2022).

[73] Bd. of Trs. of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011); Jordan Paradise, COVID-IP: Staring down the Bayh–Dole Act with 2020 Vision, 7 J. L. & Biosciences 1, 6 (2020).

[74] See Stephanie Nolen & Gay Stolberg, Pressure Grows on U.S. Companies to Share Covid Vaccine Technology, N.Y. Times (Sept. 22, 2021), https://www.nytimes.com/2021/09/22/us/politics/covid-vaccine-moderna-global.html.

[75] William O’Brien, March-in Rights Under the Bayh-Dole Act: The NIH’s Paper Tiger?, 43 Seton Hall L. Rev. 1403, 1404 (2013).

[76] Id.

[77] Id. at 1404–05.

[78] See Roger Kuan, Lyric Stephenson & Joan Wang, Life Sciences Considerations Regarding Compulsory Licensing, March-In Rights, and the Defense Production Act During COVID-19, 33 Intell. Prop. & Tech. L.J. 11 (2021).

[79] See generally, Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299 (1994).

[80] 19 U.S.C. §3532(b) (1994).

[81] 19 U.S.C. §3532(c), (d) (1994).

[82] Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988); see also James A. Baker, Intelligence Oversight, 45 Harv. J. on Legis. 199, 202–03 (2008); James E. Baker, In the Common Defense: National Security Law for Perilous Times 146 (2007). But see Louis Fisher, Congressional Access to National Security Information, 45 Harv. J. on Legis. 219, 230–32 (2008).

[83] Jennifer Trejo, Note, In the Eyes of the President: Supreme Court Holds Executive Branch Has Exclusive Power to Recognize Foreign Sovereigns, 69 SMU L. Rev. 291, 291 (2016).

[84] Michael D. Ramsey & Steve I. Vladeck, Common Interpretation: Commander in Chief Clause, Nat’l Const. Ctr., https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/345 (last visited Mar. 23, 2022).

[85] United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936).

[86] Id. at 320.

[87] Id.

[88] See, e.g., Paris Agreement to the United Nations Framework Convention on Climate Change, art. 4(8), Dec. 12, 2015, T.I.A.S. No. 16-1104 (“In communicating their nationally determined contributions, all Parties shall provide the information necessary for clarity, transparency and understanding in accordance with decision 1/CP.21 and any relevant decisions of the Conference of the Parties serving as the meeting of the Parties to this Agreement.”).

[89] See, e.g., Memorandum of Intent Concerning Transboundary Air Pollution, Can.-U.S., Aug. 5, 1980, T.I.A.S. No. 9856.

* Senior Scholar and Visiting Professor, O’Neill Institute for National and Global Health Law, Georgetown University Law Center; Senior Associate Vice-President for Health Policy and Ethics, Colorado State University; Professor, Colorado School of Public Health, J.D. Harvard, MPhil Oxford (St. Antony’s College), B.A., B.S. Kansas State University.

Conversation with Tracy Robinson

Apr 8, 2022 | Content, Online Scholarship, She Leads

Tracy Robinson is the 2019 recipient of the Prominent Women in International Law Award by ASIL. Ms. Robinson is an expert on law and policies related to gender, sexuality, and human rights, especially in the Caribbean region. She is a senior lecturer and Deputy Dean of the University of the West Indies Faculty of Law at Mona, Jamaica, where she co-founded and co-directs the university’s Faculty of Law UWI Rights Advocacy Project (U-RAP). In 2020, she was appointed a member on the Independent Fact-Finding Mission on Libya newly established by the UN Human Rights Council. Ms. Robinson served as a Commissioner on the Inter-American Commission on Human Rights (IACHR) from 2012 to 2015, and the body’s president between 2014 and 2015. There, she also served as the Rapporteur on the Rights of Women and the first Rapporteur on the Rights of LGBTI persons. In 2016, she was appointed a Commissioner on the WHO/PAHO-led Independent Review of Equity and Health Inequalities in the Americas.

* This transcript was edited and condensed for a better reading experience. Scroll down to watch the thoughtful discussion between Ms. Robinson and ILJ’s board member Beier Lin.

I. Career as a Caribbean Human Rights Lawyer

“My work at home is the most valuable.”

You are a highly achieved human rights lawyer and you also call yourself a legal feminist. What brought you to a career in international human rights, and how did you become a legal feminist?

Maybe we can start by talking about my understanding of myself as a legal feminist. I wouldn’t describe it as a process of conversion. For me, feminism, the relationship between it and myself—is how I became who I am. It is very much a part of how I understand myself and have for all of my adult life.

Although there is not a single moment in which I became feminist, my year at Yale Law School was foundational. There I did courses with Vicki Schultz and Reva Siegel. Those courses were transformational and gave me an anchoring which helped me think about not only myself, but the work I wanted to do.

To turn to your question about human rights law, I wouldn’t think of myself as someone who has had a career in human rights law but more as someone who has had important opportunities in it. I exist in many spaces professionally including those in international human rights law, and that has always been valuable to me. But I am more outside of the space than I am in it, and I think that is true for an increasing number of international human rights actors.

What do you mean by being “more outside of it,” considering that you have spent such a successful and long career practicing in it?

My everyday work is teaching domestic law to Caribbean students. I primarily teach public law—in U.S. terms, constitutional law—and family law as well. I teach some international human rights principles, but often in the context of domestic courts. In that sense, I am not the primary teacher in that area. Beyond the classroom, a lot of my work is within the Caribbean region where we rely heavily on international human rights principles. But still, we are functioning and operating in domestic spaces and domestic courts, working with domestic judges and lawyers. That is what I mean that more of my work is in the domestic space than in the international human rights space.

You’ve taken a wide range of roles throughout your career: teacher, writer, litigator, partner with international organizations… Is there any particular role that is your favorite, or is there a particular project that you’re extremely proud of?

Working “at home” is the most valuable for me. Despite my work on issues related to the Americas and also Libya, the work within the Caribbean, and when I think of home I think of the entire Caribbean region—and working with colleagues who also teach public law and human rights in the Faculty of Law UWI Rights Advocacy Project—has been the most rewarding.

It is the most rewarding not simply because of what we end up doing. It is very much because of the process of working with colleagues and students who care equally about our shared goals. The work has been humbling and instructive. I have been guided slowly on how to work better with others and with communities.

Is my understanding correct that, it is the work that you’re currently doing, which is deeply rooted in the region with your colleagues and within your community, that values the most to you at this moment?

It is a good way of thinking about it. From another perspective, it is the work I have spent the longest time doing consistently. It is not necessarily that my work outside of the Caribbean is not equally important and valuable; but it is at home where I have been inhabiting with a community of others and serving the same communities for the longest period of time.

You have worked extensively both within the Caribbean region and also outside of it. Are there any differences in the type of work that you do? Do you tend to operate with different types of strategies, set different priorities, or adopt different style of advocacy when working in different spaces?

My roles have been different. At some point I was a consultant to international organizations. More recently I have been a part of independent mechanisms functioning within organizational spaces, for example, the new fact-finding mission in Libya or my time on the IACHR. When I am in the Caribbean, I often take a much more direct advocacy role, acting on behalf of or working very closely with NGOs and communities facing human rights violations.

The first thing I always try to do is to figure out what my role is, because that role changes. The role may be clearly defined somewhere in a constitutive instrument, including about what I am expected to do. But invariably, there is more to what is expected that you have to carefully discern, from your environment, from the dialogue you have with others about why you are there and the importance of it. The thing I have taken to every part of my work is the business of listening very keenly and early: this idea of making sense of who you are in a particular place, what you are meant to do, what really matters in the very finite time, and what are the interests at stake, you have to listen.

It is very difficult to listen when you are talking. Often it does require some discipline to engage in the practice of quiet learning through listening. I found it helpful, even when I am expected to hit the ground running right away. I have often stopped and paused to learn enough to be able to contribute meaningfully. Because, you are always being asked to function in new environments and there is a humility you have to bring to the work because, despite there always being a skill which you have and some knowledge which you will bring, there is always a gap—and a big part of your role is discerning and responding to the gap. That takes some quiet time and some careful understanding of the new space first.

To listen, to fully observe, and to understand what is really going on, is this something that you would recommend every junior professional or every student to acquire as an important skill?

Listening is the key. I think of my former role in the IACHR often as listening to the victims. I have a deep responsibility to faithfully listen to—not only hear but represent through some process in the Inter-American system—what happened to them and what it required to repair the violation. It is an integral part of many parts of human rights work.

I would say listening is more suited to my personality –– I am truly an introspective person. I have met and worked with a range of persons who are ready to offer their thoughts early. But I have benefited from the quietness. It is disarming, including for you, as well as others who are waiting to hear from you. Therefore, you may want to spend a moment to make sense, though it cannot be a long moment.

Do you think the ability to listen is something that female lawyers tend to do relatively well?

I don’t know and don’t want to suggest whether women have a natural instinct for this. However, I might suggest the reason for such perception, which is not an entirely happy one: many of us as women have to find our way. We have to clear space to be able to function and work, and some of that space-clearing work is quiet work. At other times it cannot be quiet work because we don’t always meet spaces which intend to, or wish to, treat women as equals. Thus, learning your environment is a responsiveness to environments which have not always happily included women or many other minorities as equals.

II. Working as a Woman in International Law

“You choose the community.”

Do you think there are any distinct opportunities or challenges offered by the field of international human rights for women lawyers? Do you think there is anything that is distinct about this field that you would want to flag or highlight as a female lawyer?

There is a lot that is not distinct, which comes as a surprise to many women and minority lawyers. By that I mean that institutions that work on human rights issues, that are committed to addressing these issues, may not themselves be either just or egalitarian spaces. The expectation is that, since you work in a place committed to human rights, therefore it must also be one that embodies these norms in the sets of human rights policies and rules which apply at the workplace. Sadly, many encounter a workplace that is not just or equal. As a result, women and persons of color spend their time not only working to advance human rights externally and on behalf of others in the region. They are also pressing for policies aimed at promoting equality and accountability within the work space, which was certainly the case during my time at the Inter-American Commission.

The structure of many human rights institutions does not lend themselves to equality. There is often a strong professional class and staff working full time within the organization. And there is another class, the “commissioner class,” composed by members of treaty bodies—special rapporteurs, commissioners, experts—who operate in a slightly different space within the same organization. This structure produces hierarchies which can lead to double standards or the absence of robust standards for everybody working in the organization. It also produces elitism, in respect of which there is a real need to push back in order to promote the overall goals of human rights. This idea that one has to also engender equality inside of human rights spaces sometimes takes others by surprise.

How do you think we should tackle these challenges that are baked into the institutions within this field?

Not with silence. There is a temptation to not speak about the problems aloud publicly, and to see if we can ultimately resolve them quietly, so that the institution maintains its “strong” image. But I think openness, forthrightness, and the addressing by many of us who hold privileges in some spaces, even if we face discrimination in others, are all important. The expert group has the responsibility to call for accountability and to be accountable ourselves.

Moreover, thinking only about one aspect of lack of diversity and inequality and not others is deeply disruptive and damaging to the organizations themselves. For example, having spent four years in the Inter-American system, I was very much struck by the absence of indigenous people and people of color—in a region strongly populated by both communities. I certainly noted that the institution had to work through machismo, an environment in which women were not always respected or treated as equals, and the struggles around women’s leadership. Still, an organization cannot have credibility when working on the issues of others while the organization has not yet come to terms with them itself. And the questions of racism and colonialism are certainly big ones for international human rights law to still come to terms with.

Are there any opportunities unique for us in the human rights field to try to change that?

Yes, and I saw the example of that with women in the Inter-American Commission who, in the face of a crisis around allegations of sexual violence within the institution, rallied around the creation of policies to address all of the issues we just discussed in the context of work. Many of us see through our work, either at the activist level or institutionally, the value of working together. And I certainly saw the value of the community of women and men who said it was time for change, it was time to strengthen the institutional policies, and have insisted that the credibility of the institution requires both inward looking and outward looking.

I talk about the Inter-American system because I spent most time there, but this is true throughout international organizations with the human rights mechanisms. Therefore, I see opportunities, particularly for professional lawyers working within these organizations, to say it is time to end the dissonance between who we are to the outside and who we are internally.

Are there any important role models who have helped you navigate through all of this? Are there any lessons that you learned from the people who are pushing for changes, or from the women who were there before you?

I have been well mentored, guided, and cared for by communities of women, and that has been foundational. But those women, even the older ones, are my friends. For me, one of the foundational lessons is the lifelong partnerships I have developed with others who are like minded, who share my goals, who support and who guide, and who will sometimes agree with me and sometimes not, but who share a closely-knit and supportive space throughout. That notion of family extends in multiple directions, even to some who are younger than me. The community of similarly committed persons who are willing to work together is the most productive and transformative in providing the mentorship, which in turn has allowed me to do the things I have managed to.

Do you think that mentorship and community is important for other women and other marginalized groups?

Yes. When you are doing human rights work, look for decent, generous, committed persons who you want to work with, not who you want to work for. Many of us, regardless of who our nominal “boss” is, have had a community of persons over decades who have walked—not in front of, not behind, but often together with ourselves. You may not always be in the same place working on the same project; but you may connect on other things at various points. I think of human rights work as involving lifelong partnerships with others. Those communities are especially important for women and others who find themselves in places where they do not always belong, but have important work to do.

And you choose the community. It is not a community picked for you, but one you pick for yourself and slowly develop and acquire.

III. International Law to Promote Women’s Voices

“Empowerment is even more important than litigation.”

If you have to pick one most important issue faced by women at this moment, what would that issue be? How does your current work attempt to address or intersect with this issue?

When I heard that question, I thought about, where are the gaps, where are there serious violations? But at the same time, I think of one of the things I have said often to myself, that I want to know what are our, women’s, imagined lives? I recognize that the harms we face are debilitating, and I have worked around many of those harms. The combined impact of violence, poverty, and conflict have damaged women’s ability to choose and to have, as we would say in the Inter-American system, “their own life project.” But increasingly for me it is less about the issue and more about empowerment or elevation of voice. In the end, what has been the most valuable for me as a Caribbean feminist is the possibility that the work I do, regardless of the topic, can contribute to women’s empowerment and women’s increased ability to decide for themselves and to have more of what they wish for their lives possible.

I think of the work which we did over a decade with trans women in Guyana, who faced criminalization in the Georgetown area and were discriminated in the health, educational, and housing sectors, and in simply walking on the streets. I think about not simply our work but how those women created alongside us their own movement and community of activists, which sometimes coalesced with ours but certainly developed its own agenda. To me, that empowerment is even more important than the successful and important litigation we pursued, which ended up before the highest court of appeal for Guyana, the regional Caribbean Court of Justice. I hope the process of our work can create more space for different groups of women who face hardships and vulnerabilities in our societies to determine who they are and who they want to be in our societies.

Creating more space for local women to empower themselves.

Absolutely. Movements will determine what communities are valuable to them. The trans community, for example, are working cross borders in the Caribbean, in Latin America, and globally. But for so many of us, we have become who we are in community. Sometimes we need to engender a space of stepping back, not forward, so that others can have space to build the communities which are valuable to their own transformation. That is a critical part of the work that I care about.

Do you think the current domestic, regional, and international human rights is sufficient in offering and protecting this space of empowerment?

There are limitations. Like Kenji Yoshino says, “law will never fully apprehend us.” We cannot expect or hope that legal structures are going to make sense of our entire humanity. Nevertheless, law still has its value. Those structures in the name of human rights institutions and domestic courts have had value in giving voice to some and creating more space for dialogue for some. However, it is important to appreciate that the overall work that we must engage in has to go beyond legal structures and human rights institutions.

Are there any particular trends and challenges in the human rights field that you are seeing right now, especially in light of recent events and global situations? How have you seen activists responding to those trends and challenges, especially when the tools we have are often not very sufficient?

In the wake of the Black Lives Matter movement, if you are in the United States or Brazil or the Caribbean, you may ask questions, as many feminists have, about the use of criminalization to address gender inequalities. One of the major questions raised by contemporary feminism is: has criminalization served the ends of gender justice well? That is an important question as we are attempting to advance gender justice and often working with templates with strong criminalization elements.

However, there are distinctions between places in which criminalization is not working well because of the over incarceration of, for example, Black men in the United States, and places in which it is not working well because there is no accountability—no one is being criminalized. There is a need to think more about how the debates take shape in some places where criminalization has materialized in the form of incarceration that are deeply unequal and racialized, and other places in which the State does little or nothing. I am not suggesting that these are entirely different spaces; but the criminalization debate forces us to ask how is law working in diverse spaces. I don’t know the answer to that. It is an ongoing question that many more of us in the Global South need to be a part of.

If you have a young woman lawyer who is very passionate about using their skill sets to do something, for example, to fight against incarceration based on a person’s race, color, or ethnicity, what advice would you give to that person starting out in this field?

It might be to say that you are likely to meet a surprisingly hierarchical field. If you are a junior, you are going to walk into spaces where seniority means something. In some cases, one has to contest them and challenge the ways in which those hierarchies are detrimental to you as a young professional. But my advice is what I gave earlier: to focus not only on who you work for but who you work with; to build vibrant, long-lasting, diverse communities of persons who share your goals but don’t have the exact same ideas as you do. Communities that through your joint and collective initiatives and efforts, you can see your way from one challenging moment to another, from one opportunity to another. I am thinking of folks who will be supportive of you, guide you and will be with you in what for many will be a lifelong project of work.

And to listen and to observe, but also to take space when necessary.

Absolutely. Sometimes when you are listening and observing you might be talking separately to your community and receiving guidance and wisdom, so the space of listening is a dynamic one. It is not a static space of absolute silence and no movement. It is one in which one takes care and learns from others in one moment and in one place, where one speaks in another space and makes noise as needed, and where one carefully works through and determines what strategy and action to take. Strategic work often requires thoughtful quiet moments.

Thank you so much, Ms. Robinson. I am sure our broad readership will find your experience, your insights, and your advice extremely helpful.

Begging the Question: Lăcătuş v. Switzerland and the European Court of Human Rights’ Recognition of Begging as a Human Rights Issue

Apr 6, 2022 | Content, Online Scholarship, Perspectives

DANIEL RIETIKER & MARY LEVINE*

INTRODUCTION

On January 19, 2021, the European Court of Human Rights (ECtHR) held in Lăcătuş v. Switzerland,^[1] that an outright ban on begging in public places violated Article 8 of the European Convention on Human Rights (“the Convention”), suggesting that certain means of survival are encompassed under the Article’s protection of “private life.”^[2] Furthermore, the court concluded that Switzerland’s interference with that protection was not “necessary in a democratic society.”^[3] This Article reviews the novelty of the ECtHR’s approach in this new field and analyzes some of the judgment’s shortcomings. In Part I, we present the facts of the case along with the reasoning and main conclusions of the court; in Part II, we critically assess the judgment and its implications.

I. Lăcătuş v. Switzerland

A. Factual Summary

The applicant, Violeta-Sibianca Lăcătuş, is a Romanian national born in 1992, and living in Romania.^[4] After failing to find work in 2011, she resorted to begging for change on the streets of Geneva.^[5] Despite Lăcătuş using begging as a means of survival, the Geneva Criminal Law Act (“Geneva Act”), section 11A, made it a criminal offense to beg in public places.^[6] The law mandated that,

“1. Anyone who begs will be punished by a fine;

2. If the perpetrator organizes the begging of others or if he is accompanied by one or more minors or dependents, the fine will be at least CHF 2,000.”^[7]

Accordingly, on July 22, 2011, while Lăcătuş was begging on the streets of Geneva, the local police confiscated 16.75 Swiss francs (CHF), equivalent to 18.35 U.S. dollars, from her, conducted a full body search, and ordered her to pay a fine of CHF 100 (USD 109.54).^[8] Over the next two years, she was placed in police custody twice for over three hours, and she was additionally fined CHF 100 eight times.^[9] In an attempt to provide an alternative to the monetary punishments, the authority offered Lăcătuş one-day custodial detention for each fine she was unable to pay.^[10]

B. Procedural History

Consequently, Lăcătuş appealed her penal orders.^[11] On January 14, 2014, the Police Court of the Canton of Geneva denied her appeal and found her guilty of begging under the Geneva Act, thereby confirming the police’s confiscation and full-body search.^[12] The court further ordered her to pay a fine of CHF 500 (USD 547.71) or face a five-day custodial sentence.^[13] Lăcătuş then appealed the court’s order to the Criminal Appeals and Review Division of the Court of Justice of the Canton of Geneva.^[14] On April 2, 2014, the appeals court dismissed her appeal, and on September 10, 2014, the federal court likewise dismissed her appeal.^[15]

Because her federal appeal was dismissed and she remained unemployed, she was thereafter detained from March 24–28, 2015, at the Champ-Dollon Remand Prison for failure to pay her fines.^[16]

With no domestic remedy, on March 17, 2015, Lăcătuş — now the applicant — lodged a complaint with the ECtHR, insisting that the Swiss ban on begging violated Article 8 of the Convention (right to respect for private and family life), Article 10 (freedom of expression), and Article 14 (prohibition on discrimination).^[17] The applicant argued that the Geneva statute banning begging constituted an interference with her private life, as it deprived her of a means to survive.^[18] Moreover, she argued that the prohibition on begging prevented her from asking for charity, and further, that the Act discriminated on the basis of financial status and Roma descent.^[19]

C. The Court’s Judgment

On January 19, 2021, the ECtHR issued a chamber judgment, unanimously holding that the Geneva Criminal Law Act violated Article 8 of the Convention.^[20] Consequently, the chamber declined to consider Lăcătuş’s Article 10 and 14 claims.^[21]

The court noted that the Swiss government did not dispute its interference with the right to respect for private life under Article 8; rather, the government argued that it had a legal basis for this interference under the Geneva Act.^[22] The Swiss government asserted that the Geneva Act had a legitimate aim because it provided public order and safety, promoted the economic well-being of the country through tourism, and further protected the rights and freedom of others, such as patrons at restaurants, shoppers, and so on.^[23] The court recognized these as legitimate government aims; however, the court ultimately found that because the Geneva Act was a blanket prohibition on begging — in other words, an outright ban on a certain type of conduct — the state required a strong justification, and the court needed to apply rigorous scrutiny considering the interests at stake.^[24]

Using this framework, the court first assessed the applicant’s demographics and characteristics as a person of manifest vulnerability.^[25] The court noted that the applicant came from an extremely poor family, was illiterate, unemployed, and received no social benefits from the Swiss government.^[26] Therefore, since begging was her exclusive means of survival, the court determined that Lăcătuş “had the right, inherent in human dignity, to be able to express her distress and to try and satisfy her needs by begging.”^[27]

The court then reviewed the nature and severity of the penalty.^[28] First, the court acknowledged that the five-day sentence was a severe sanction, particularly given that the sanction was not justified by a sound public-interest rationale.^[29] Moreover, the court reasoned that this deprivation of liberty would likely aggravate the applicant’s distress and vulnerability.^[30] The court rejected the Swiss government’s assertion that it lacked less restrictive means, relying upon an assessment of similar international legislation.^[31] The court reviewed begging legislation in the Council of Europe’s forty-seven member states and found that the Swiss ban on begging was more restrictive and harsher than many other countries’ criminal begging statutes.^[32]

As a result, in balancing the interests of the parties, the court determined that a five-day sentence for Lăcătuş was not proportionate to the aim of combatting organized crime and protecting the rights of passersby.^[33] Accordingly, the Geneva Act infringed on Lăcătuş’s human dignity, and thus “impaired the very essence of the rights protected under article 8.”^[34] She was therefore awarded just satisfaction of nonpecuniary damages under Article 41 in the amount of 922 euros.^[35]

II. ASSESSMENT OF THE JUDGMENT

This Part is divided into three sections: Section II.A discusses the novelty of the ECtHR’s approach toward begging. Section II.B evaluates the judgment’s resulting diminished margin of appreciation, both through its use of international materials and given its heightened proof requirements for legitimate government interests. And section II.C examines the court’s failure to analyze Lăcătuş’s Article 10 and Article 14 claims.

A. Scope and Novelty of the Court’s Approach Toward Begging

The novelty of Lăcătuş stems primarily from the court’s recognition that begging might be a human rights issue. By holding that begging falls within Article 8, the court created a quite expansive definition of “private life.” The court explicitly reasoned in its admissibility assessment that “private life” under Article 8 is a “broad concept, not susceptible of an exhaustive definition.”^[36] It can sometimes embrace aspects of the physical and social identity of an individual.”^[37] Moreover, the court noted that human dignity is encompassed under the protections of Article 8, further deeming a person’s means of subsistence as a foundational component in her own human dignity.^[38]

Some judges critiqued this expansion, suggesting that the facts of Lăcătuş do not clearly establish that the applicant was obliged to beg in order to survive and escape poverty. Judge Ravarani noted that the scope of “human dignity” must be fleshed out even more, indicating that an applicant must do everything possible to avoid the criminalized act in order for human dignity to be invoked.^[39]

B. Switzerland’s Diminished Margin of Appreciation

1. Application of International and Comparative Interpretations

While Lăcătuş focused mainly on expanding the scope of Article 8 protections, the court also applied a comparative law analysis of legislation adopted by member states and considered the relevance of international treaties and sources.^[40] This was necessary due to the Swiss government’s argument that bans and restrictions of begging existed in other Council of Europe member states and that, as a result, they enjoyed a considerable margin of appreciation in this domain.^[41] The margin of appreciation is the leeway given to a state in determining the necessity of an interference into the right at stake in a given situation, including the proportionality of the impugned measure.^[42] It is the expression of the principle of subsidiarity that imposes on the court the duty to apply a certain restraint in assessing the domestic tribunals’ decisions and to limit its own control (the so-called “European control”) to the question of whether a fair balance has been struck between the private interests of the applicant, on the one hand, and the public interests of society, on the other.^[43] In other words, as long as the conclusions of the domestic tribunals do not appear arbitrary or manifestly unreasonable, it is not up to the court to replace the considerations by the domestic tribunals by its own assessment.^[44]

In coming to its conclusions, the court reviewed various member states’ criminal acts related to begging and the judicial interpretations of this legislation, including opinions by the Constitutional Court of Austria, the Belgian Council of State, the Hungarian Constitutional Court, the High Court of Ireland, and the Italian Constitutional Court. After its review of member states’ judicial interpretations, the court thereafter found that the Swiss ban was comparatively too far reaching.

In particular, the court found that nine of the thirty-eight member states^[45] the legislation of which the court examined, did not consider it necessary to ban begging at all.^[46] In the eighteen member states that provided rules on the national level, six have banned only aggressive or intrusive forms of begging,^[47] seven have otherwise restricted the scope of such legislation,^[48] and only five have less nuanced laws in place, prohibiting begging more generally.^[49] Finally, in the eleven states where begging laws existed only on the local (regional) level, such as in Switzerland, the scope of the legislation was generally limited too, in particular to aggressive or intrusive forms of begging.^[50] In other words, whereas no consensus existed among the member states on the question of banning or restricting begging, it nevertheless turned out that most other member states had only limited restrictions on begging, whereas the Swiss ban on begging was comprehensive. This outright ban on begging, paired with Lăcătuş’s dire need to beg, informed the court’s decision to conclude that Switzerland’s margin of appreciation was limited.^[51]

Furthermore, the court assessed relevant international treaty provisions. For example, the court invoked Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (“EU Human Trafficking Convention”), suggesting that Swiss authorities inappropriately punished individuals for engaging in unavoidable conduct. In particular, the EU Human Trafficking Convention’s monitoring group has noted that begging is one of the unavoidable behaviors that states should not punish.^[52]

2. Rejecting Switzerland’s “Legitimate” Government Interest

Not only did the court inform itself by relying on international materials, but the court also expressly limited the margin of appreciation in its assessment of the Swiss government’s interests. As mentioned previously, one of the most decisive points to the court was the disproportionate balancing of interests between the applicant and the state. The court found that the Swiss ban on begging was too absolute, and that the sanction was too harsh given the circumstances. Instead of providing Switzerland with a (broad) margin of appreciation to criminalize begging in absolute terms, the court indicated that disproportionate interests would implicate a violation under the Convention. In their discussion, the court cited Parrillo v. Italy,^[53] which held that a margin of appreciation may be restricted when a particularly important aspect of an individual’s existence or identity is at stake.^[54] As such, the court again diminished state sovereignty in the name of protecting minorities historically targeted by the state.

Thus, even though Article 8 is not an absolute right under the Convention, the court’s high standard for Article 8 assessments suggests that state-imposed restrictions will have limitations under the Convention. The court cited the United Nations Special Rapporteur on Extreme Poverty and Human Rights, who argued that the state interest in keeping the town clean and attractive for tourists cannot result in an absolute ban on conduct, particularly conduct that relates to the applicant’s identity and means of survival.^[55] This reliance on the Special Rapporteur’s critique of a state regulation limits state sovereignty and reinforces the court’s commitment to ensuring that impoverished people receive appropriate protection.

C. The Court’s Failure to Assess Articles 10 and 14

In Lăcătuş, the European Roma Rights Center (ERRC) filed a third-party intervention outlining historical and modern “antigypsyism” and its resulting statistical increase on poverty for Roma citizens.^[56] The ERRC explained that this increased occurrence of poverty has led to a false narrative of Roma as inherent “criminals.”^[57] The ERRC report also analyzed various Council of Europe jurisdictions and demonstrated that the criminalization of begging exacts a disproportionate impact on Roma.^[58] Particularly, the report showed that in the development of the Geneva Act on begging, the legislators showed clear discriminatory intent, including one legislator saying “there is begging tourism, which is practiced by travellers — all those gypsies who settle in camps just outside our borders, who hold out their hands by day and, by night, brandish the screwdrivers and crowbars they use to rob our homes.”^[59]

From our point of view, it is rather surprising that, in spite of these very precise and explicit submissions by a well-recognized NGO, the court did not want to engage in an analysis of the alleged breach of Article 14.^[60] This is particularly surprising considering that the court has identified in the past many situations in which Roma suffered serious violations of their human rights, including instances of discrimination.^[61] Moreover, the court, within its examination of the applicant’s Article 8 complaint, clearly and rightly acknowledged her particular vulnerability due to her Roma origin.

While the Geneva Act did not specifically target the Roma community, Roma citizens were disproportionately impacted by the criminalization of begging due to their disproportionate degree of vulnerability and poverty. It is worth mentioning that the court shaped its “indirect” discrimination doctrine in a different case involving alleged discrimination against Roma. In D.H. and Others v. The Czech Republic,^[62] Roma children were disproportionately allocated to “special schools” delivering inferior education. While a chamber of the court held that the same educational test was applied to all Czech pupils, the grand chamber reversed, finding that the statistical data gave rise to a strong presumption of “indirect” discrimination, which meant that it was up to the government to prove that the differential impact was the result of objective factors not connected to the racial origins of the applicants. In D.H., the government was unable to provide satisfactory evidence, and the grand chamber found a violation of Article 14 taken in conjunction with the right to education within the meaning of Article 2 of Protocol 1 to the Convention.^[63] It would be interesting to know if, in Lăcătuş, the court had used the theory of “indirect” discrimination, whether there would have existed enough evidence, including statistical data, for a sufficiently strong presumption of discriminatory treatment of Roma citizens by the Geneva police and, as a result, whether the court would have reached, mutatis mutandis, the same conclusion as the grand chamber in the case against the Czech Republic.

Finally, the court did not address the question of whether the applicant’s situation also falls under freedom of expression within the meaning of Article 10 and whether there was a violation of this guarantee. In its judgment, the court referred to a June 2012 decision of the Austrian Constitutional Court, in which a Salzburg public security law prohibiting begging on public grounds was considered contrary to freedom of expression.^[64] It would have been interesting to know whether the court considers begging an “expression” within the meaning of Article 10 and whether this provision was infringed in the case of Lăcătuş. Having however already found a violation of Article 8, the court did not feel compelled to pronounce an additional ruling under Article 10. Judge Keller, in her separate opinion, expressed the view that begging is a form of expression falling under the scope of Article 10 and that the court should have declared this complaint admissible.^[65] She shared, however, the opinion of the majority that it was not necessary, after having found a violation of Article 8, to examine the question of whether there had been a violation of that provision in the present case.^[66] It is our understanding that, even if such an approach would not have changed the outcome of Lăcătuş, the finding that begging can be considered an “expression” under Article 10 could have been significant for potential future cases.

CONCLUSION

Lăcătuş v. Switzerland is a leading case for the protection of vulnerable people, and there is no doubt that, judging by the detailed and balanced reasoning, the court wanted to adopt several principles in this new area.

The court wanted to demonstrate that it does not act in a vacuum. To that end, it used many diverse external resources, such as the case law of the Inter-American Court of Human Rights and the African Commission of Human Rights, legal opinions of United Nations experts, and domestic laws and practice. This wide range of external sources indicates that the court considers it important to ground its opinions in international consensus or trends. In Lăcătuş, the comparative analysis allowed the court to show that the canton of Geneva’s solution went further than what was the trend in the majority of member states of the Council of Europe.

We are of the opinion that the judgment expresses considerations of humanity that meet the expectations in a regional human rights court. One of the most remarkable aspects is the use of the notion of human dignity in order to bring into play the right to respect for private life under Article 8, rather than relying upon Article 3 (prohibition of torture and other ill treatment).

A criticism that can be made against the judgment is the court’s choice not to engage in the examination of Articles 10 and 14 once it found a violation of Article 8. Despite the fact that this approach reflects the normal practice of the court and can be justified by the principle of procedural economy, these complaints would have been worth pursuing, in particular the discrimination allegation. In this regard, it must be recalled that the applicant, of Roma origin, belongs to one of the most vulnerable groups in Europe, a group that has suffered and continues to suffer discrimination and ill treatment on a daily basis, as recognized by the Court in its examination of the Article 8 complaint.

In light of what precedes, and in spite of the fact that the judgment does not resolve the fundamental issues underlying the case — namely poverty, marginalization, and discrimination — it nevertheless constitutes a significant step forward in the recognition of human rights.

[1] App. No. 14065/15 (Jan. 19, 2021), https://hudoc.echr.coe.int/eng?i=001-207377. The judgment is available only in French.

[2] Id. ¶ 92.

[3] Id. ¶ 116.

[4] Id. ¶ 2.

[5] Id. ¶ 4.

[6] Id. ¶ 5.

[7] Id. ¶ 16 (unofficial translation).

[8] Id. ¶ 5.

[9] Id.

[10] Id.

[11] Id. ¶ 6.

[12] Id. ¶ 7.

[13] Id.

[14] Id. ¶ 8.

[15] Id. ¶¶ 9–11.

[16] Id. ¶ 14.

[17] Id. ¶¶ 50, 118, 121.

[18] Id. ¶ 50.

[19] Id. ¶¶ 118, 121.

[20] Id. ¶ 116.

[21] Id. ¶¶ 118–23.

[22] Id. ¶¶ 76–79, 94–95.

[23] Id. ¶¶ 76–79.

[24] Id. ¶¶ 96–97, 101–02.

[25] Id. ¶ 107.

[26] Id.

[27] Id.

[28] Id. ¶ 108.

[29] Id. ¶¶ 108–10.

[30] Id. ¶ 109.

[31] Id. ¶ 114.

[32] Id.

[33] Id. ¶ 115.

[34] Id.

[35] Id. ¶¶ 124–27.

[36] Id. ¶ 54.

[37] Id.

[38] Id. ¶ 56.

[39] Id. (Ravarani, J., concurring and dissenting), ¶ 7.

[40] Id. ¶ 19.

[41] Id. ¶ 103.

[42] Id. ¶ 99.

[43] Id.

[44] Id. ¶ 100.

[45] The Council of Europe has forty-seven member states, but it is rather rare that comparative studies, which are conducted by the research division of the court, cover all the members.

[46] Id. ¶ 20 (Albania, Andorra, Finland, Georgia, Greece, Moldova, Portugal, Slovakia, and Ukraine).

[47] Id. ¶ 22 (Estonia, France, Ireland, Italy, Serbia, and Slovenia).

[48] Id. (Azerbaijan, Croatia, Liechtenstein, Luxembourg, Poland, Romania, and San Marino).

[49] Id. (Cyprus, Hungary, Montenegro, United Kingdom, and Turkey).

[50] Id. ¶ 23 (Germany, Austria, Belgium, Bosnia and Herzegovina, Spain, Russia, Latvia, Lithuania, Netherlands, Czech Republic, and Sweden).

[51] Id. ¶ 105.

[52] Id. ¶¶ 39, 112.

[53] App No. 46470/11, ¶ 109 (Aug. 27, 2015), https://hudoc.echr.coe.int/eng?i=001-157263.

[54] Id. ¶ 103.

[55] Id. ¶ 113.

[56] Third-Party Intervention, ¶¶ 8–12, Lăcătuş, App. No. 14065/15.

[57] Id. ¶¶ 13–17.

[58] Id. ¶¶ 18–24.

[59] Id. ¶ 25.

[60] Judge Lemmens’s concurrence in Lăcătuş touches on these issues. See id. (Lemmens, J., concurring and dissenting), ¶ 2.

[61] See, e.g., Moldovan v. Romania (No. 2), App. Nos. 41138/98 and 64320/01, 2005-VII Eur. Ct. H. R. 167 (extracts) (concerning destruction of houses and possessions); Hirtu v. France, App. No. 24720/13 (May 14, 2020), https://hudoc.echr.coe.int/eng?i=001-202442 (concerning forced evictions); Nachova v. Bulgaria, App. Nos. 43577/98 and 43579/98, 2005-VII Eur. Ct. H. R. 1 (concerning police brutality); V.C. v. Slovakia, App. No 18968/07, 2011-V Eur. Ct. H. R. 381 (extracts) (concerning forced sterilisation); Lakatošová v. Slovakia, App. No. 655/16 (Dec. 11, 2018), https://hudoc.echr.coe.int/eng?i=001-188265 (concerning shooting spree at Roma family’s home); Ctr. for Legal Res. v. Romania, App. No. 47848/08, 2014-V Eur. Ct. H. R. 1 (concerning death in a medico-social institution); R.B. v. Hungary, App. No. 64602/12 (Apr. 12, 2016), https://hudoc.echr.coe.int/eng?i=001-161983 (concerning verbal abuse and threats).

[62] App. No. 57325/00, 2007-IV Eur. Ct. H. R. 241; see also Oršuš v. Croatia, App. No. 15766/03, 2010-II Eur. Ct. H. R. 247.

[63] G.A. Serghides, The Prohibition of Discrimination Under the European Convention on Human Rights: Interpretation, Application and Mechanism, 31 Hague Y.B. Int’l L. 117, 133–34 (2018).

[64] Lăcătuş, App. No. 14065/15, ¶ 27.

[65] Id. (Keller, J., concurring), ¶¶ 3–13.

[66] Id. ¶¶ 14–17.

* Daniel Rietiker, PhD, is a Senior Lawyer at the ECtHR (Strasbourg), an international law lecturer at Lausanne University, and a member of the adjunct faculty of Suffolk University Law School (Boston). He was a visiting fellow at Harvard Law School in 2014. The views expressed in this piece are strictly personal. Mary Levine is a Law Student at Suffolk University Law School.

Uniting for Peace: The Emergency Special Session on Ukraine

Apr 1, 2022 | Content, Online Scholarship, Perspectives, Ukraine

MICHAEL RAMSDEN*

In the days following Russia’s invasion of Ukraine the United Nations (UN) General Assembly convened an Emergency Special Session under its Uniting for Peace mechanism. The initiation of this session was prompted by the exercise of the veto power by Russia, thereby impeding the Security Council from adopting a resolution on the situation. The Security Council took the unusual step (by majority vote) of deciding to call an Emergency Special Session given that Russia’s veto had “prevented it from exercising its primary responsibility for the maintenance of international peace and security.” For the first time since 1997, the General Assembly convened an Emergency Special Session on a new situation, broadcast live around the world, in which state diplomats joined together in large numbers to express their collective disapprobation of Russian aggression. It resulted in the adoption of Resolution ES-11/1 by a large majority (141 for, five against and 35 abstentions). This Article discusses the legal significance of this resolution and revisits the powers available to the General Assembly in supporting the maintenance and restoration of international peace and security. It shows that, moving forward, there are various legal solutions open to the General Assembly, some creative, to mitigate the Security Council’s failures to act on the Ukraine situation.

The nature of the Uniting for Peace mechanism has been extensively analyzed, such that only a brief outline of its key features is necessary here. In response to Security Council deadlock on continued UN military action in Korea, the General Assembly adopted Resolution 377A on 3 November 1950. The resolution stipulates that either the General Assembly or Security Council can initiate an Emergency Special Session where, due to a “lack of unanimity of the permanent members,” the Council “fails to exercise its primary responsibility for the maintenance of international peace and security.” In this case, the Assembly “shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.” In the ten prior Emergency Special Sessions, the Assembly took and recommended a variety of measures. It has condemned violations of international law and called for cessation of these breaches. It has recommended the imposition of sanctions against offending states. It has established peacekeeping forces with host state consent. Perhaps most famously associated with the Uniting for Peace mechanism, in 1951 the Assembly called upon states to support continued UN military action in Korea, including to repel Chinese aggression, a feat that it has not repeated since.

The output of the first meeting of the Emergency Special Session on Ukraine, Resolution ES-11/1, did not go as far as some of these prior resolutions, but it did return to a legal characterization that it has long avoided: aggression.^† It deplored “in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the [UN] Charter” and condemned Russia’s declaration as to the necessity of this “‘special military operation.’” It demanded Russia to “cease its use of force against Ukraine” as well as to “immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders.” It also condemned “all violations of international humanitarian law and violations and abuses of human rights,” demanding that parties to the conflict “fully comply with their obligations under international humanitarian law to spare the civilian population.” It recalled the obligations under Article 2(2) of the UN Charter, that all member states, “in order to ensure to all of them the rights and benefits of membership, shall fulfil in good faith the obligations assumed by them in accordance with the [UN] Charter.”

Resolution ES-11/1 is unlikely to be the General Assembly’s final word on the Ukraine situation. The Emergency Special Session is now adjourned, but can be resumed in the future upon requests from member states. Although it is impossible to predict how this unfolding crisis is resolved, it is worthwhile considering the legal options open to the Assembly in seeking to secure peace and, in time, justice for the victims of aggression and other international crimes. To what extent is the Assembly able to take action or otherwise recommend measures to the membership that would be legally analogous to that taken by the Security Council?

This question comes back to the debate on the scope of the General Assembly’s powers and the effect of its resolutions. A commonly held view is that the Assembly, being a deliberative body, is lacking in legal authority to impose its will on states; its powers in Articles 10 to 14 are merely recommendatory. Rather, it is the Security Council that is vested with the powers to bind and coerce the membership, including to justify the use of military force and the imposition of economic sanctions. Furthermore, it is clear from past Assembly practice that it is not necessary for them to act in an Emergency Special Session in order to condemn member states or the Security Council in failing to meet its responsibilities under the UN Charter; it has become routine practice in regular sessions to do so.^‡ An Emergency Special Session under Uniting for Peace, on this view, is symbolic, in creating the bracing optics of an urgently convened session to address shocking events, but does not give the Assembly any more power than it possesses under the UN Charter. Yet, even if one accepts that Uniting for Peace does not add to the Assembly’s legal powers, this view ignores the important role that the General Assembly’s solemnly worded resolutions in an emergency situation possess in crystallising a series of legal claims by the community of nations that can be used to support future actions. In this context, the use of the Uniting for Peace mechanism is a symptom of the UN’s institutional failure, with the many (i.e. the 193 members of the Assembly) attempting to do through a process of collective legal interpretation what the few have failed to do through Chapter VII decisions (i.e. the 15 members of the Security Council). The Assembly can legally support future actions against Russia in a variety of ways.

Its finding in Resolution ES-11/1 that Russia has committed aggression in Ukraine provides the first such internationally authoritative determination that this conduct occurred. Prior Assembly findings of this nature in other situations have been used to augment legal action taken by other bodies, including the International Criminal Court’s (ICC) exercise of jurisdiction and the ordering of provisional measures in the International Court of Justice (ICJ). Most relevantly, Resolution 68/262 (2014), which declared Russia’s annexation of Crimea to be of “no validity” was used by the ICC Prosecutor to support the opening of an investigation, on the basis that Crimea was Ukrainian territory. Indeed, in the recently initiated case, Ukraine v Russia, the ICJ drew upon Resolution ES-11/1 to support the ordering of provisional measures to protect the rights of Ukraine from being subject to the use of force by Russia based upon false allegations of genocide under the Genocide Convention.

The General Assembly can also take into account the Russian aggression as a factor in those internal operational matters in which it is empowered to make decisions. Its finding in Resolution ES-11/1 that the “rights and benefits” of membership entail good faith obligations provide a hook for future claims that the Russian government has not acted in accordance with the expectations incumbent on a UN member state. One route is via Article 5 of the UN Charter, which provides that “a member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council.” The obvious impediment here is that Russia would not support its own suspension from the UN when voting on the matter in the Security Council. However, this does not preclude the membership from forming a view as to whether a representative possesses the credentials to represent a state in the Assembly. Normally this is a formality in approving the governmental representatives of a state, but there is precedent for the General Assembly to factor in a regime’s fidelity to the UN Charter in assessing whether to accept or reject credentials. The credentials of the South African apartheid regime were thus rejected by the Assembly due to its “flagrant violation” of the UN Charter. Whether isolating Russia in this way is politically wise is another matter. Yet, it is open to member states to object to the Russian representative based on the South Africa precedent, thereby triggering a consideration of its credentials by the UN Credentials Committee.

Another way in which the General Assembly’s legal determinations might assist in the Ukraine situation is in supporting the legal justification for the imposition of sanctions against Russia. Sanctions raise complex questions of legality, particularly when taken unilaterally outside an international institutional framework. Within the text of the UN Charter, the power to sanction is textually the reserve of the Security Council, which, pursuant to Article 41, are able to take measures to restore or maintain international peace and security. Still, there is a body of Assembly practice in calling upon members to impose sanctions against offending states, including the breaking of diplomatic relations; closure of sea and air ports; trade boycotts; severance of cultural relations; targeted sanctions against individual perpetrators; and arms embargoes. The difference in the Ukraine situation is that states have been quick to impose sanctions without the need for encouragement or endorsement from the Assembly. Still, there is a role, moving forward, for the Assembly to evaluate the legality of sanctions against Russia by, for example, certifying that the conditions for the valid invocation of the law of countermeasures have been met. These conditions, according to Article 49 of the International Law Commission’s Draft Articles on State Responsibility, include proportionality, proper purpose (aimed at inducing Russia’s compliance), and temporal limitation to the period of the breach. While an Assembly resolution would not automatically release states from its various treaty obligations to Russia, the involvement of the Assembly in certifying that these conditions have been met can serve to alleviate concerns regarding abuse that might arise in a single state, or a small group of states, determining the legality of sanctions unilaterally. Furthermore, closer coordination of sanctions through the Assembly would give effect to the international obligation on states to cooperate through international institutions (such as the UN) to bring to an end breaches of peremptory norms (such as the prohibition on aggression).

The General Assembly can also empower judicial or quasi-judicial bodies to address the legal implications arising from Russia’s aggression and its conduct in Ukraine. Resolution 377A noted it to be one of the Assembly’s responsibilities under the Uniting for Peace mechanism to “ascertain the facts and expose aggressors.” The Assembly can advance this purpose most obviously by creating a commission of inquiry with a mandate to collect and evaluate evidence to ascertain violations of international law. The recent precedent set in the Syria situation takes the Assembly’s powers a step further to allow commissions to prepare individual case files of persons suspected of committing international crimes, thereby facilitating future investigations and prosecutions at a domestic or international level. In 2016, Russia sought to resist this innovation as ultra vires but failed. A quasi-prosecutorial mechanism of this nature in turn enhances the Assembly’s ability to meet its responsibility under the Uniting for Peace mechanism to “expose aggressors” in the Ukraine situation. In this respect, it is noteworthy that the Assembly’s subsidiary organ, the Human Rights Council, has established a commission of inquiry to investigate a broad range of violations arising from the Russian aggression. This will, in turn, serve to not only ensure that an international investigation is conducted into these violations, but also provide the Assembly with information to underpin its future findings and legal characterizations on the Ukraine situation.

Furthermore, the General Assembly, acting under Article 96 of the UN Charter, could request an advisory opinion from the ICJ. Ukraine has already initiated proceedings against Russia which, given the latter’s limited acceptance of the ICJ’s jurisdiction, is confined to arguments concerning the application of the Genocide Convention. This provides a hook for the judicial consideration of the reasons purporting to support the invasion, but the Assembly might also confer jurisdiction on the ICJ on a broader basis through a request for an advisory opinion. The ICJ has the power to consider “any legal question” which has been construed broadly to include the conduct of individual states. As the Emergency Special Session on Israel shows, the Assembly has used the Uniting for Peace mechanism to request an advisory opinion on the legal consequences of Israel’s construction of the wall in the Occupied Palestinian Territory. Similarly, the Assembly could ask the ICJ to address the legal consequences arising from Russian conduct on a broader basis, both in February 2022 as well as in relation to earlier incursions into Ukrainian territory, such as its 2014 annexation of Crimea.

Finally, a more radical suggestion is for the General Assembly to create an ad hoc criminal tribunal to try suspects accused of international crimes, including aggression, in relation to the Ukraine situation. A group of leading figures have called for a Special Tribunal for Aggression to be established to prosecute Russia’s aggressive acts. While it has been the Security Council who has established ad hoc tribunals in the past, their failure to act on the Ukraine situation would arguably support the creation of an analogous tribunal by the Assembly under the Uniting for Peace mechanism. This view has gained some traction in UN practice, with the commission of inquiry report on North Korea noting the possibility for states to pool their combined sovereign powers over criminal jurisdiction to empower an Assembly created ad hoc tribunal. Although the Prosecutor of the ICC has initiated an investigation into the Ukraine situation, there are limitations to this Court’s jurisdictional reach, particularly over the crime of aggression. As Russia is not an ICC state party, and the Security Council is unable to make a referral of the situation due to Russia’s veto, the crime of aggression cannot be prosecuted at the ICC in this situation. The establishment by the Assembly of an ad hoc tribunal over the crime of aggression represents one legal option to redress this impunity gap.

The overview of legal options open to the General Assembly says nothing about the sizeable challenges in operationalizing these various options, especially in trying the incumbent Russian leadership for the crime of aggression. Nor has it sought to predict the geopolitical winds of change that might make these options more or less viable as a matter of international politics. However, as states and other actors coordinate their activities and strategize in forging creative solutions to overcome misuses of the Security Council veto, it is the General Assembly, now as in 1950, that can step into the breach. Resolution ES-11/1 has made a start.

† Michael Ramsden, International Justice in the United Nations General Assembly 133–36 (2021).

‡ Id. at 114–45.

* Michael Ramsden is an associate professor at the Faculty of Law, The Chinese University of Hong Kong and a barrister door tenant at 25 Bedford Row, London. Michael also previously worked in the Appeals’ Division of the International Criminal Court and at United Nations Assistance to the Khmer Rouge Trials. He has published extensively in the areas of international criminal law, international human rights law and international institutional law, including a monograph, International Justice in the United Nations General Assembly, published by Edward Elgar Publishing in 2021.