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Taking Down One of the World’s Largest and More Profitable Criminal Industries: Trafficking in Persons (Part II: Libya and Central America)

May 13, 2021

Editorial note: This article is part of a series of blog posts on critical subject-matters for the progressive development and codification of International Criminal Law.

By: Frederika Schweighoferova[1]

Due to its limited jurisdiction over certain international crimes, the International Criminal Court (“ICC”) tends to be overlooked as an adequate tool to address many contemporary crises which entail grave violation of human rights. One such situation is the rampant crime of human trafficking, further exacerbated by the current migration crisis. Despite the efforts to curb it, the crime of human trafficking continues to represent the third largest and most profitable crime industry worldwide. While states parties to the United Nations (“UN”) Trafficking Convention are under the obligation to investigate and prosecute the crime, the current statistics worldwide demonstrate the insufficient capacity of domestic jurisdiction to address it effectively.

The ICC was created to fight against the impunity of those responsible for the gravest crimes when states are unable or unwilling to do so. While many consider trafficking in persons as being already encompassed under enslavement or other inhumane acts as crimes against humanity as defined in the Rome Statute, the crime of human trafficking contains certain elements that would fall short of the existing framework. Therefore, amending the Rome Statute to include human trafficking as either a separate underlying act of crimes against humanity, or a stand-alone crime, might be necessary to prosecute the crime effectively.

This article intends to demonstrate, by describing crimes committed against migrants in Libya and in the Americas, the need to, first, prioritize the prosecution of trafficking in persons under the existing Rome Statute framework and, second, to amend the Rome Statute to allow its complete and effective prosecution.

1. Prosecuting Human Trafficking under the Existing Rome Statute Framework

1.1. Prevailing Chaos in Libya and Vulnerable Migrants in Hands of Criminals

Irregular migrants and asylum seekers experience unimaginable suffering and exploitation during their time in Libya, waiting to be smuggled to Europe, or being locked up in detention centers under terrible conditions before being deported. The International Organization for Migration (“IOM”) estimated that as of 2019, there are between 700,000 and 1,000,000 migrants in the country. As the latest joint report of the United Nations Support Mission in Libya (“UNSMIL”) and Office of the High Commissioner for Human Rights (“OHCHR”) on the situation of migrants in Libya highlights:

“From the moment they step onto Libyan soil, they become vulnerable to unlawful killings, torture and other ill-treatment, arbitrary detention and unlawful deprivation of liberty, rape and other forms of sexual and gender-based violence, slavery and forced labour, extortion and exploitation by both State and non-State actors.”

The tragic consequences of detaining tens of thousands of refugees and migrants in an escalating war zone were demonstrated on July 2, 2019, where over 40 migrants and refugees were killed and around 80 injured following an airstrike on the Tajoura refugee detention center outside Tripoli. However, this is not the only danger these vulnerable persons are exposed to.

As a consequence of bilateral agreements concluded among Libya, the European Union, and Italy, followed by a series of measures taken unilaterally by the Italian government, departure attempts from the Libyan shores to Italy substantially decreased throughout 2018. While the number of migrants decreased, the death rate has increased sharply as traffickers have been taking more risk to avoid the reinforced surveillance exercised by the Libyan coastguards. This has led to exacerbation of the vulnerable position of migrants who have become fully dependent on the will of the smugglers. Armed groups and traffickers, reportedly working in tandem with the Libyan Government of National Accord (“GNA”) and Libyan Coast Guard, have seized this opportunity to make profits, turning the smuggling of migrants into one of the most profitable businesses in this region. As reported in an award-winning undercover report by CNN, one of the direct consequences was the creation of “slave auctions” in Libya.

Even though Libya is a party to the UN Trafficking Protocol, and therefore is obliged to prevent and combat trafficking in human beings, the lack of the institutional capacity and resources makes it difficult to pursue. However, even with more effort and resources allocated to this problem, with the alleged involvement of state officials as accomplices to this crime, it appears highly unlikely that a solution to this dehumanizing practice can feasibly be achieved at the domestic level.

1.2. ICC as a Tool to Address Accountability

Given the gravity and wide scale of human trafficking of migrants in Libya and the unlikelihood of addressing these crimes at the domestic level, the solution should be sought internationally. While Libya is not a party to the Rome Statute, the treaty that established the ICC, the UN Security Council referred the situation in Libya to the ICC granting it jurisdiction over crimes under the Rome Statute committed in Libya’s territory or by its nationals from February 15, 2011 onwards.

In May 2017, the ICC Prosecutor, Fatou Bensouda, indicated that the ICC may investigate migrant-related crimes in Libya. In her remarks to the UN Security Council, she noted that “[her] Office continues to collect and analyze information relating to serious and widespread crimes allegedly committed against migrants attempting to transit through Libya” including trafficking in persons, and “is carefully examining the feasibility” of opening an investigation into these crimes.

Nevertheless, despite the arrest warrants issued by the ICC for crimes against humanity and war crimes committed in Libya, there is no—at least no publicly known—arrest warrant relating to Libya’s migrant-related crimes.

1.3. Human Trafficking in Libya as a Crime against Humanity

The traffickers in Libya, including state officials who have allegedly aided and been involved in the illegal enterprise, could fall under the ICC jurisdiction.

Acts of trafficking against migrants in Libya have been long reported. Already in 2009, the U.S. Department of State’s human rights report on Libya indicated that approximately 1% of the estimated 1.5 to 2 million foreign residents in Libya have been trafficked to the country for commercial sexual exploitation and forced labor purposes with the direct involvement of government officials in the process. Since then, crimes against migrants have been regularly reported by UN Special Rapporteurs, NGOs, as well as the U.S. Department of State (2017; 2018; 2019). While the total number of victims of the crimes has not been publicly available, it is estimated that in 2019, around 48,000 people were enslaved in Libya, while between 5,000 and 6,000 refugees and migrants are held arbitrarily in Libya’s detention centers under the authority of the Ministry of Interior. As such, the figures available show the systematic commission of the acts over many years. This demonstrates their regular recurrence and large-scale nature in terms of the number of victims, likely satisfying the criterion of both “widespread” or “systematic” as required by the chapeau of the crimes against humanity provision in the Rome Statute.

Large groups of civilians—migrants and refugees who have not been members of armed forces or other legitimate combatants—have been a primary target of the continuous and multiple commission of acts of human trafficking, likely satisfying the “attack against civilian population” element.

Further, if established that Libyan officials consistently committed or abetted crimes against migrants, it would also to satisfy the “state policy” requirement. Numerous reports have documented GNA state officials abusing migrants and cooperating with traffickers. In particular, UNSMIL and the ICC Office of the Prosecutor (“OTP”) have indicated the complicity of some state actors, including local officials, members of armed groups formally integrated into state institutions, and representatives of the Ministry of Interior and Ministry of Defense, in the smuggling or trafficking of migrants and refugees, as a means of enrichment through exploitation of and extortion from vulnerable migrants and refugees.

The available information therefore suggests that the “systematic or widespread attack directed against a civilian population” and the “policy” requirements are satisfied, given the involvement of state officials in the commission of the acts, which, as the following part explains, amount to underlying acts under Article 7, and were committed following a regular pattern at least since 2009.

The information collected by the ICC OTP, further corroborated by the UN Refugee Agency (“UNHCR”), and media indicates that the migrants have been subjected to torture, rape, sexual exploitation, slavery, forced labor, and unlawful imprisonment throughout their journeys in both official and unofficial detention centers. UNSMIL and OHCHR have well-documented the deplorable conditions migrants have faced in prisons and detention centers run by the Libyan Ministry of Interior, militia, and armed groups. In addition to subjecting migrants to grave human rights abuses, including forced labor, they have also helped traffickers gain access to migrants, who were then sold for forced labor or prostitution in the slave auctions. As such, several underlying acts under Article 7(1) of the Rome Statute could be brought in the absence of the existence of a separate crime of human trafficking.

The information available strongly indicates the existence of the required mens rea, i.e., the intent and knowledge of the crimes by the Libyan officials, militia, and armed groups committed either in the detention centers or once handed over to traffickers. The detainees give chilling testimonies of labelling the detention centers as “stores for smugglers.”

While a more thorough analysis is required, it appears that even if the ICC does not have jurisdiction over human trafficking, the crimes committed in the context of the Libyan situation include constitutive elements that are associated with the existing Rome Statute crimes, such as enslavement, unlawful imprisonment, torture, rape, and sexual slavery. Alternatively, the residual provision under the Rome Statute on “other inhumane acts,” which are acts that inflict “great suffering, or serious injury to body or to mental or physical health,” and are of a similar “character” as Article 7(1) acts, could be equally applied.

Despite the nonexistent material jurisdiction over human trafficking, the ICC OTP could prosecute Libyan officials as well as militia and armed groups, either as direct perpetrators or under the modes of liability of aiding and abetting, for the crimes connected to human trafficking in Libya under the existing Rome Statute framework.

2. Prosecuting Human Trafficking under the Amended Rome Statute Framework

2.1. Human Trafficking in Central America

Mexico and Northern Triangle—comprised of El Salvador, Guatemala, and Honduras have for decades accounted for one of the world’s highest homicide rates. To flee gang violence and poverty, it is estimated that every year, around 300,000-376,000 people leave Mexico to enter the United States and between 400,000–500,000 people flee the Northern Triangle to endure a treacherous journey north through Mexico to the United States.

Victims tend to pay everything they have to a smuggler who promises them a better life in the United States. However, these smugglers, working directly with human traffickers as part of a mutually profitable business, hand them over to human trafficking networks, controlled by gangs, acting in collusion with state authorities, who force them into the forced prostitution or labor to pay off their debts for their journey north. All irregular migrants are at risk of abuse, but women and children—particularly unaccompanied children—are especially vulnerable.

Women and girls travelling north become subjected to exploitative labor, sexual exploitation, or begging, especially indigenous girls. There are estimates that for every reported case there are 30 hidden victims, which, according to the U.S. Department of State 2019 report, brings the estimated numbers of victims of human trafficking every year to 21,200 in Mexico, 11,130 in Guatemala, 2,200 in Honduras, and around 1,600 in El Salvador. In Mexico, the numbers have sharply increased in 2019 as a result of the controversial immigration policy, “Migrant Protection Protocols,” also called “Remain in Mexico,” implemented by the Trump administration. The policy requires asylum seekers to stay in Mexico until their court hearings in the United States, leaving them exposed to become easy prey for human traffickers and extortionists.

While states have acted to counter the trafficking through adoption of legislation and creation of designated institutions, they lack clear policies to address the crimes effectively, which is further exacerbated by the involvement of corrupt authorities in the commission of the crimes.

The next part will examine the practicality of prosecuting the above-mentioned crimes under a crime against humanity of human trafficking—if it existed under the Rome Statute—and as stand-alone crime under the Rome Statute, falling outside of the scope of crimes against humanity.

2.2. Human Trafficking in Central America as a Crime against Humanity

The above-mentioned crimes satisfy the previously listed requirements of an “attack against civilian population” given the multiple commission of acts of human trafficking against migrants who are not merely randomly selected individuals. Their magnitude, number of victims, and non-accidental repetition of similar criminal conduct on a regular basis would satisfy the requirements of “widespread or systematic.”

As stemming from the Rome Statute criterion of “state or organizational policy” requirement, crimes against humanity can be perpetrated by government forces, as well as by organized armed groups. Some criminal organizations in Mexico and Northern Triangle qualify as an “organization” under the Rome Statute due to their hierarchical structure, their control over territory, their capability to carry out widespread or systematic attack against civilians as well as having expressed an intention to launch such attacks, and having done so in fact (see OSJI, p. 89). Despite the governments’ genuine efforts to tackle the crimes, this element is further compounded by the involvement of some state authorities of Mexico in the commission of the crimes, demonstrating the organizations’ capability to control the territory, including, de facto, its state authorities.

Nevertheless, even if these chapeau elements of crimes against humanity might be satisfied, the shortcomings of effectively addressing human trafficking without amending the Rome Statute are demonstrated by the inability of covering all elements of the crimes committed. The crimes would only be limited to the prosecution under the crime of enslavement where the perpetrator exercised the right of ownership over the trafficked person, or in other way deprived the victims of their liberty. While most human trafficking may indeed satisfy this element, there are numerous situations where traffickers lure victims by abusing their vulnerable position without necessarily depriving them of liberty or exercising ownership over them. It is also unclear whether the brief Rome Statute reference to human trafficking would be sufficient to cover the exploitation purposes applicable in the present example—prostitution and forced labor.

For this reason, including a new act under Article 7 of the Rome Statute of human trafficking, which would follow the definition of the UN Trafficking Protocol, while still requiring the chapeau elements of crimes against humanity, would equip the ICC with the necessary tools to address the crimes committed by the organized networks.

However, much human trafficking is not committed by large organized networks, but rather by individual criminals or groups of criminals which would not reach the threshold of an organization under the Rome Statute. Consequently, these would not satisfy the requirement that an act must be committed pursuant to or in furtherance of an organizational policy. For this reason, a stand-alone crime under the Rome Statute, using the definition of the UN Trafficking Protocol, would offer the widest—and for the moment the only—legal avenue to investigate and prosecute human trafficking, irrespective of whether it satisfied the chapeau elements of crimes against humanity, in cases where states with primary jurisdiction would be unwilling or unable to do so genuinely.

Without the necessity of satisfying the chapeau elements of crimes against humanity, the ICC would dispose—as the only non-domestic judicial institution—of unique force to address these global and far-reaching crimes effectively and not only offer an appropriate remedy to victims of these crimes, but also to deter their future commission.

Conclusion

Both situations have demonstrated the need to explore a new mechanism to address the widespread crimes of human trafficking. The absence of effective responses at domestic and regional levels suggests the need to engage an international jurisdictional body to investigate and prosecute this widespread crime. Under the current international legal framework, the ICC represents the most viable option.

In Libya, given the continuing climate of impunity for crimes against migrants in Libya and the inability of Libyan authorities to address them, the ICC, even with certain material jurisdiction limitations, represents a viable mechanism to bring justice for victims and help to hold to account the state officials involved in human trafficking.

In the Americas, while the situation could satisfy the chapeau elements of crimes against humanity, the prosecution of the underlying crimes would be unsatisfactory under the existing Rome Statute framework. This could be partially remedied by adding a new underlying act under Article 7 of the Rome Statute of human trafficking, applicable to the crimes committed by organized criminal networks. However, to effectively address the multitude of human trafficking acts committed by criminals not reaching the organizational threshold, an inclusion of a stand-alone crime under the Rome Statute would represent the most practical and feasible solution.

The journey to such a development might still be far. Nevertheless, given the continuing glaring impunity enjoyed by human traffickers, these matters should be discussed with gravity and urgency to tackle the world’s third most profitable illegal business.

[1] Ms. Frederika Schweighoferova is a human rights lawyer from Slovakia, working at Parliamentarians for Global Action (PGA) as the Director of the Campaign for the Universality and Effectiveness of the Rome Statute of the International Criminal Court System and Senior Legal Officer of the International Law and Human Rights Programme.

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Taking Down One of the World’s Largest and More Profitable Criminal Industries: Trafficking in Persons (Part I)

May 13, 2021

Editorial note: This article is part of a series of blog posts on critical subject-matters for the progressive development and codification of International Criminal Law.

**By: Romina Morello[1] and Frederika Schweighoferova[2][*]**

Human trafficking is one of the gravest violations of human rights that affects every country of the world. With annual profit as high as $150 billion, it represents the world’s third largest and most profitable crime industry after illicit drug and arms trafficking.

According to the International Labour Organization and the United Nations (“UN”) Migration Agency, in 2016 alone, over 40 million people were victims of “modern slavery.” To break it down, more than 25 million have been victims of forced labor, including forced labor exploitation, forced sexual exploitation of adults, commercial sexual exploitation of children, and state-imposed forced labor and over 15 million people were victims of forced marriage. Of this 40 million, the report estimates, 71% of victims of “modern slavery” are women and girls, and one in four victims is a child.

The most widely accepted definition of human trafficking is included in the 2003 UN Trafficking Protocol (“Trafficking Protocol”), adopted by 178 states. According to Article 3(a) of the Protocol, to constitute trafficking in persons, three basic elements need to be established: an action (“recruitment, transportation, transfer, harbouring or receipt of persons”) by certain means (“threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”), for the purpose of exploitation (which “includes at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”).

This Protocol, which calls on states parties to establish policies to prevent and combat trafficking in persons, aims at creating consistency in domestic criminal systems around the world, rather than criminalizing the act internationally. However, the numbers given above indicate the insufficiency of the existing legal frameworks, and their enforcement, in curbing the crime effectively.

Under the current system, the only judicial body capable of adjudicating crimes beyond the remit of domestic jurisdictions is the International Criminal Court (“ICC”). While the crime of human trafficking is not criminalized under the Rome Statute, the founding treaty of the ICC, the inclusion of the crime could be warranted given the scale, gravity, and brutality of the crime.

This article explores the possibility of prosecuting human trafficking under (i) the current framework of the Rome Statute system; (ii) through amending the Rome Statute to include human trafficking as a separate underlying act of crimes against humanity, or (iii) through an amendment to the Rome Statute to include a new stand-alone core crime of human trafficking, as defined under the UN Trafficking Protocol.

1. “Premiers Responsables”: States

As a preliminary matter, before prosecution under any of the three avenues discussed in this article could take place at the ICC, the Court must first determine if it is able to exercise jurisdiction. As enshrined in paragraph 6 of the preamble of the Rome Statue, states have the primary duty to exercise jurisdiction over international crimes. Only when states are unable or unwilling to prosecute a crime can the ICC intervene. This is one of the core principles of the system created by the Rome Statute: the principle of complementarity.

As of February 2020, all but seven ICC states parties have ratified or signed the Trafficking Protocol, which requires states to adopt national legislation in line with the treaty so they can then prosecute human trafficking domestically. According to the 2018 Global Study on Trafficking in Persons from the UN Office on Drugs and Crime (“UNODC”), which covered 100 ICC states parties, most states have enacted human trafficking-related domestic legislation.

However, despite the increase in the adoption of comprehensive trafficking in persons in the domestic legislations in recent years and pronounced increasing trends in the numbers of convictions, many countries in Africa and Asia continue to have very low numbers of detection of victims and convictions for human trafficking. The inclusion of human trafficking as a new core crime under the Rome Statute would create individual responsibility independent of domestic legal systems and could serve not only as an additional prosecution channel, but also as a much-needed deterrent in light of the current climate of impunity.

2. Prosecuting Human Trafficking under Existing Provisions of the Rome Statute

Human trafficking is neither a core crime under the Rome Statute nor an underlying act under the existing core crimes: genocide, crimes against humanity, war crimes, and crime of aggression. The travaux préparatoires of the Rome Statute do not offer much insight into why human trafficking was not explicitly included in the Rome Statute. However, Article 7 of the Rome Statute on crimes against humanity may be read as encompassing human trafficking, whether under enslavement or as other inhumane acts, two of the underlaying acts of crimes against humanity.

In order for an act to amount to a crime against humanity, it must meet the requirements included in the chapeau of its definition. That is, it must be part of a “systematic or widespread attack against the civilian population” done “pursuant to or in furtherance of a state or organizational policy.”

The term “widespread” has mainly a quantitative meaning referring to the scale of the attack or to the number of victims. It covers situations involving a multiplicity of victims, as a result of the cumulative effect of a series of inhumane acts or the singular effect of one inhumane act of extraordinary magnitude.The term “systematic” refers to the “organised nature of the acts of violence and the improbability of their random occurrence.” An attack’s systematic nature can “often be expressed through patterns of crimes, in the sense of non- accidental repetition of similar criminal conduct on a regular basis.”

An attack under Article 7 of the Rome Statute does not have to be a military attack but can entail “a campaign or operation carried out against the civilian population,” “consist[ing] of a course of conduct involving multiple commission of acts referred to in article 7(1).” “Civilian population” refers to persons who are civilians, as opposed to members of armed forces and other legitimate combatants. The attack needs to be directed against the civilian population and not merely against randomly selected individuals.

The “state or organizational policy” requirement can be satisfied by circumstantial evidence showing that the “attack follow[ed] a regular pattern” and was not an “isolated act of violence.” The policy does not need to be formalized and it can be deducted from the “systematic” element.

a) Enslavement

Beyond the chapeau, one of the enumerated prohibited acts under Article 7 is the act of enslavement, defined in the Rome Statute as “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” The essential element under this article is the existence of a right of ownership over the trafficked persons acquired “by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.”

Prosecuting human trafficking under the already existing crime of enslavement as crime against humanity would not require an amendment to the Rome Statute. However, despite presenting the most feasible way to prosecute human trafficking at the ICC at this moment, this option would require that the act of human trafficking complies with all the elements of the definition of crimes against humanity in addition to the elements of the crime of enslavement.

b) Other Inhumane Acts

Another potential provision under which to prosecute human trafficking under the Rome Statute is Article 7(1)(k): “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” This provision covers acts which are “of a character similar to any other act” referred to in Article 7(1) of the Rome Statute.

The classification of trafficking in human persons as inhumane clearly does not require further discussion. The serious social, psychological, and physical harm human trafficking victims suffer is of comparable gravity to other Article 7(1) acts.

c) Practical Implications

Despite the overlap of the existing Rome Statute provisions with the crime of human trafficking crime, the current legal framework is insufficient to effectively address most human trafficking crimes.

Using the underlying acts of crimes against humanity would limit the prosecution to human trafficking that takes place in the context of “widespread or systematic attack against civilians,” “pursuant to or in furtherance of a State or organizational policy.” Even when most trafficking is committed by criminal networks, these, while organized, may not meet the requirements of “organizational policy” developed by the ICC jurisprudence for organized groups:

(i) whether the group is under a responsible command, or has an established hierarchy; (ii) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; (iii) whether the group exercises control over part of the territory of a state; (iv) whether the group has criminal activities against the civilian population as a primary purpose; (v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; (vi) whether the group is part of a larger group, which fulfils some or all of the abovementioned criteria.

Such interpretation suggests that only high-level organized criminal networks de facto governing a part of state territory, may satisfy the element of “organizational policy.” As such, the trafficking groups which, although not reaching the “organizational policy” threshold are nevertheless capable of committing systematic or widespread attacks against a civilian population, would not be prosecutable under the existing Rome Statute provisions.

Despite the overlap of the crime of enslavement and other inhumane acts with human trafficking and the corresponding jurisprudence of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and regional courts, which have used the crime of enslavement against human traffickers, these crimes are insufficient to cover all elements defined in the Trafficking Protocol.

In particular, the definition of enslavement under the Rome Statute would only cover the prosecution of acts resulting in the enslavement of the victim—which forms only one of the purposes of exploitation under the Trafficking Protocol. This would exclude the ability to capture other forms of exploitation which do not entail the right of ownership or deprivation of liberty as they are done by, e.g., abusing power or victim’s vulnerable position.

Further, as stemming from the Trafficking Protocol definition, trafficking actually does not require the exercise of any powers of ownership over the trafficked person as required under the crime of enslavement. While trafficking can serve as one of the vehicles for the exercise of a power attaching to the right of ownership of the kind required to constitute enslavement, in many instances, it will not give rise to the power of ownership. For instance, this could encompass the transportation of individuals—by, e.g., deception or other means in case of adult victims—for a service amounting to exploitation. The conduct in question may—but also may not—amount to the control of someone’s movement and/or psychological control over an individual, yet the difference is a matter of degree and an assessment of a person as another’s “possession” and “exercise of ownership.” In the above example, it could not be determined the victim is “enslaved” at that stage. Obtaining someone’s consent—to be transported/recruited/harbored etc.—by fraud, deception, abuse of power or of a position of vulnerability, does not equate to “exercising ownership” or “enslaving the person.”

Another important distinction lies in the element of consent. Trafficking requires a proof of “means”—coercive circumstances to demonstrate the adult victims’ lack of consent, whereas the slave trade/enslavement does not require such proof. Consent is neither an element nor a defense to the slave trade.

While it could be argued that the residual provision of “other inhumane acts” could compensate for these shortcomings, it would be an imperfect solution to addressing this grave widespread crime to simply call it “other inhumane act” and not accord it the qualification as required. Naming a crime is an essential part of criminal law which not only gives it the force, but also offers legal certainty to the defendants and victims. Or else we would not need to have any specific underlying acts of crimes against humanity whatsoever.

Finally, the absence of certain elements under the existing Rome Statute provisions, which form an integral part of human trafficking, would also limit the prosecution’s options in terms of applicable modes of liabilities. In particular, the acts of recruitment, transportation, transfer, harboring, or receipt would likely only be prosecutable under alternative modes of indirect perpetration liability (ordering, soliciting, inducing, aiding, abetting, or otherwise assisting in the commission of the crime) or contribution liability (“in any other way contribut[ing] to the commission or attempted commission of such a crime by a group of persons acting with a common purpose”) rather than under direct (co-) perpetration of the human trafficking—simply because the crimes of enslavement or other inhumane acts do not include these acts within their elements. This could, therefore, lead to shorter sentences in case of adjudication of criminal liability, potentially limiting the deterrence effect of the ICC for these crucial parts of the crime of trafficking in persons.

3. Amendment to the Rome Statute

None of the existing international or regional human rights treaties addressing human trafficking create a mechanism to establish individual criminal responsibility. Adding human trafficking as a new crime under the Rome Statute would allow for a precise definition of the offense which international law seeks to address. The inclusion of human trafficking under the Rome Statute as defined in the UN Trafficking Protocol could be pursued in two ways: through adding an underlying act of human trafficking under the existing provision of crimes against humanity, or as a new Article 5 core crime.

The first option would already expand the material jurisdiction of the ICC to the elements that the crime of enslavement or other inhumane acts would not cover. While potentially more likely to be accepted by states parties, the disadvantage of opting for an amendment expanding the underlying acts of Article 7 of the Rome Statute to acts of human trafficking are, as explained above, glaring: prosecuting trafficking as a crime against humanity would require the satisfaction of the core crime’s chapeau elements, limiting the ICC jurisdiction to human trafficking committed in a widespread or systematic manner pursuant to or in furtherance of an organizational policy. This would, as a result, disregard the majority of the crimes as the organized groups would not reach the organization threshold criteria required by the Rome Statute.

For this reason, a stand-alone crime under the Rome Statute would offer the widest—and for the moment the only—international legal avenue to investigate and prosecute human trafficking not limited to the required elements of crimes against humanity.

Creating a new core crime would allow the Court to pursue specific, tailored cases without needing to jump through jurisdictional hurdles or to cherry-pick facts to fit the existing crimes. Prosecutions would address the multiple and diverse stages of the crime of human trafficking, tailored to the specific elements of the crime. This guidance will not only aid the Prosecutor in developing the case, but will allow focused and effective investigations that target the key individuals in trafficking operations, rather than individuals whose actions best match the current existing crimes.

Gang leaders and heads of criminal organizations could be prosecuted in the same manner that commanders and armed forces leaders may be, including through the principle of command responsibility. Given the publicity and exposure of proceedings at the ICC, such prosecutions could deter traffickers and end the prevailing impunity.

The definition of trafficking in persons enshrined in the UN Trafficking Protocol could serve as the basis for an amendment to the Rome Statute, with its specificities added to the Elements of Crimes. This definition has not only achieved almost universal acceptance, as mentioned above, but has also been transposed into the domestic legislation of many states parties to the Rome Statute.

4. Conclusion

Given the widespread commission of trafficking in human beings, further exacerbated by the reported government complicity in several countries and regions, it is imperative to continue contemplating innovative solutions to enforce accountability on traffickers. The ICC, while limited through its resources and capacity to change the trafficking in human being’s landscape, nonetheless has the potential to contribute meaningfully to bringing justice for trafficking victims.

Whether and how the ICC should get involved with prosecuting trafficking in persons is a question that requires continued reflection and engagement on behalf of states impacted by human trafficking. Amending the Rome Statute to include human trafficking as a crime would nevertheless be a first step to cope with the reality of modern slavery.

Given the gravity of the crime and the absence of any other criminal jurisdiction willing or able of ending the current impunity enjoyed by traffickers in the face of voluntary or involuntary inaction by states and regional bodies, the debate on whether to establish a direct role for the ICC in prosecuting human traffickers is not only highly anticipated, but also very foreseeable.

[*] The authors would like to thank the following individuals, who as students at Harvard Law School contributed to the research and drafting of this article: Katerina Simonova, Jung Min (Jasmine) Shin, Samantha Lint, Emma Broches, Chetna Beriwala, Janet (Ji Soo) Park, Rebekah Carey, Isha Jain, Stephanie Gullo, Alexia Tizzano, Fraciah Muringi Njoroge, Sondra Anton, Celeste Kmiotek, and Matthew Farrell.

[1] Ms. Romina Morello holds the position of Regional Legal Advisor for the Americas at International Committee of the Red Cross. She contributed to writing this article in her capacity of supervising attorney for Harvard Law School’s Advocates for Human Rights. The views expressed herein are those of the author’s alone and do not reflect the views of the International Committee of the Red Cross.

[2] Ms. Frederika Schweighoferova is a human rights lawyer from Slovakia, working at Parliamentarians for Global Action (PGA) as the Director of the Campaign for the Universality and Effectiveness of the Rome Statute of the International Criminal Court System and Senior Legal Officer of the International Law and Human Rights Programme.

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In Defense of the Amazon Forest: The Role of Law and Courts

March 18, 2021

By: Luís Roberto Barroso¹

Patrícia Perrone Campos Mello²

Abstract: The Amazon Forest is approaching a point of no return from which it will enter an irreversible process of savannization, with the loss of most of the environmental services it provides to the world, and great damage to life quality on the Planet. According to environmentalists and scientists, Brazil is failing to combat deforestation, which has grown at an alarming rate in recent years. This essay demonstrates that ineffective legislative initiatives and a deficient legal framework are in part responsible for allowing this failure. It proposes solutions including: (i) a constitutional amendment to prohibit the regularization of public land invasions that favor land grabbers, (ii) strategies to confront executive inaction through the demarcation of conservation units and indigenous reserves, and (iii) improvement and better enforcement of laws punishing environmental crimes.

[Click here for PDF]

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Introduction

Any meaningful effort to mitigate climate change has to start with the Amazon Forest. The Amazon makes up 67% of the world’s tropical forest.^[1] It is the world’s largest, most biodiverse reserve, hosting a remarkable concentration of plants, animals, fungus, bacteria, and algae.^[2] Its role in capturing carbon, impact on rainfall patterns, and relevance as a source of fresh water all play a critical role in ensuring climate stability in the region and worldwide.

The Amazon is also the natural habitat to a wide variety of peoples and cultures. It covers 40% of South America^[3] and comprehends the territory of nine countries,^[4] although 60% of the Forest is in Brazil. Around 27 million Brazilians live in the so-called Legal Amazon (“BLA”),^[5] including dozens of indigenous peoples, some of whom are still uncontacted tribes.^[6] These indigenous peoples depend on the Amazon for the preservation of their culture, religion, nutrition, and health.

Deforestation began meaningfully in the 1960s with the onset of governmental initiatives, such as infrastructure construction and agricultural and settlement subsidies.^[7] From then onwards, it increased progressively until it reached its peak in 2004.^[8] After that, government initiatives kept deforestation in check until 2012,^[9] but with the loss of political will to protect the Amazon and Brazil’s economic downturn in 2015, deforestation levels started to rise again with each passing year. By 2015, the accumulated deforestation of the last 40 years added up to a total of 20% of the Brazilian Amazon,^[10] an area equivalent to the territories of Spain and Italy together. The situation turned dire in 2019 when deforestation^[11] increased by 34.4%,^[12] and indigenous lands and conservation units were affected to an unprecedented extent.^[13] Forest burning increased by 67.9% in 2019 compared to 2018.^[14] These numbers continued to grow in 2020, when deforestation increased by 9.5% and fires by 6.7% compared to 2019.

Deforestation can have unpredictable systemic consequences on the environment.^[15] Scientists estimate that if 40% of the forest territory is destroyed, we will arrive at an irreversible tipping point, with a significant portion of the region beginning to develop into a savanna-like area.^[16] The consequences of a world without the Amazon are catastrophic not only for Brazil, but for the planet we inhabit. Besides loss of animal and plant species, there would be a drastic reduction in rainfall levels, which are essential for Brazilian agribusiness and electric power generation.^[17] The water shortage would also impact industry, the supply of basic needs, and urban life.

According to a growing number of critics, the increase in deforestation is a byproduct of the Brazilian government’s lack of interest towards environmental protection^[18] and apparently debilitating public policies,^[19] which have been read as a green light for even more daring unlawful conduct.^[20] The oldest causes of deforestation, aggravated in recent years, point to the reduction of command-and-control actions,^[21] the expansion of livestock and agricultural activities, illegal logging and mining, the lack of economic alternatives for the poor, the unsatisfactory functioning of some relevant Brazilian institutions, corruption, and, finally, deficiencies in the legal framework.

The latter is precisely the object of this essay. It will demonstrate that ineffective legislative initiatives and obsolete legislation encourage illicit behaviors. It will also propose changes to the regulatory framework to address these problems. The essay attempts to fill an important gap in the literature. It seeks to make a comprehensive diagnosis of the different legal problems that interfere with the fight against deforestation and offers an original proposal (constitutional amendment), in addition to other relevant measures already explored by the literature,^[22] to discourage land grabbing in the Amazon.

I. Existing Legal Framework

Like many countries in Latin America, Brazil was under an authoritarian government between 1964 and 1985. In the process of re-democratization, the current Constitution of 1988 was promulgated. This Constitution restored the rule of law, the balance between powers, contemplated a wide range of rights—including the right to a healthy environment—and conferred broad powers to the judiciary to make it effective. It was responsible for a deep change in the way law is practiced in Brazil.^[23] Almost any question of relevance to the country can give rise to a constitutional debate and the environmental crisis follows this rule.

A. Public Land in Brazil

In order to understand the deforestation problem in Brazil, it is crucial to access the public land categories in the Amazon, principally conservation units, indigenous lands, and non-allocated lands. These classifications have different impacts on the greater protection or vulnerability of the forest, due to their different legal regime and to the infrastructure settled to protect them.

The creation of large conservation units^[24]—including national parks, biological reserves, national forests, and environmental protection areas—are an effective way of protecting the biodiversity and habitat of traditional communities. The conservation units can be (i) of full conservation, aimed at keeping ecosystems free of any human intervention;^[25] or (ii) of sustainable use, allowing for the exploitation of nature’s goods in a manner that ensures perpetuity of the resources and the environmental processes, in a socially fair and economically viable manner.^[26] According to the Brazilian Constitution, conservation units can only be suppressed or have their legal regime modified by law.^[27]

The indigenous lands^[28] formally belong to the federal government but, according to the Constitution, indigenous communities are entitled to the areas that they have traditionally occupied and have the right to their perpetual use and possession.^[29] It is the federal government’s responsibility to demarcate and protect these areas.^[30] As of 2019, 424 territories in the Brazilian Amazon were designated as indigenous land. The exploitation of hydraulic resources and hydroelectric potential as well as the search for and exploitation of mineral resources in these lands require (i) previous congressional authorization, (ii) consultation with the interested communities, and (iii) guaranteed sharing of revenues.^[31] The demarcation of these areas limits the uncontrolled advance of economic activities, protecting the life and immemorial rights of communities, and contributing to environmental conservation.

Areas that are not privately owned and that the government has not designated as indigenous reserves or conservation areas are referred to as “non-allocated public areas.” Approximately 45% of the Amazon’s territory falls into this category.^[32]

Deforestation is significantly lower in conservation units and demarcated indigenous reserves due to their constitutional and legal regimes, which make it impossible for a land grabber^[33] to acquire ownership of the land.^[34] In addition, conservation units^[35] and indigenous reserves^[36] are managed by governmental bodies specifically responsible for protecting their integrity. Indigenous lands also count on the presence and surveillance of indigenous peoples and each benefit from the shared monitoring of non-governmental organizations (“NGOs”).^[37] On the other hand, non-allocated public areas are vast tracts of land, very difficult to monitor, and are not submitted to any special legal regime or surveillance scheme. Worse than that, they are subject to mistaken public policy, as discussed below.

B. Crimes in the Amazon

1. Illegal Land Appropriation

The Brazilian Constitution provides that the ownership of public lands may not be transferred to private individuals based solely on claims that they have been using the land uninterruptedly and with no opposition, even if for a long period of time.^[38] Rather, the alienation of public lands typically depends on public bidding.^[39] Moreover, the invasion and/or exploitation of public lands is a crime.^[40]

Public land grabbing in the Amazon follows a pattern. First, invaders^[41] take over the land and convert it into pastures and plantations by extracting selective trees and burning and/or cutting the remaining plant cover. Next, they attempt to legalize land ownership. They do so by soliciting fake ownership deeds, in collusion with registry offices and public officers.^[42] Finally, they sell the land in allotments for agricultural use or cattle-raising. In short, the illegal appropriation of public lands typically initiates a vicious cycle that leads to deforestation and other crimes, such as illegal logging, burning, and forgery of public documents.^[43]

2. Environmental Crimes

Environmental crimes are currently listed among the most lucrative forms of transnational criminal activities, not least because of their low risk of punishment.^[44] When practiced on a large scale, they rely on well-structured criminal organizations and networks that include not only producers, but also intermediaries and buyers of gold, logging, cattle, meat, and agricultural products. They are often connected to other illegal activities, such as money laundering, corruption of government officials, smuggling, and slavery. The most important environmental crimes in the Amazon region and their criminal framework are presented below.

a. Deforestation

Deforestation without the permission of a public authority is a crime, leading to prison sentences of up to four years in regular public lands, and up to five years in the case of conservation units, plus fines.^[45] The main cause of deforestation in the Amazon Rainforest is cattle-raising.^[46]

b. Burnings

Burnings are typically the cause and consequence of deforestation. On the one hand, burnings enable the fast suppression of vegetation, clearing areas for the development of economic activities. On the other, deforestation exposes the soil and the remaining forest to sunrays, drying it up and increasing the risk of fires, deliberate or natural. Under Brazilian law, setting fire to woods and forests without public authorities’ permission is a crime that carries a sanction of two to four years in prison and fines. ^[47]

c. Illegal logging and trade

Illegal logging and trade is also a very common crime in the Amazon region.^[48] It accounts for an estimated 80% of timber production in Brazil.^[49] Illegal loggers typically hide the unlawful origin of the timber by paying bribes to obtain fake documents attesting that their timber was extracted from certified areas.^[50] Forest degradation occurs when illegal loggers select the most valuable trees in a given area for extraction. Its effects are very similar to deforestation effects.^[51]

d. Illegal mining

Illegal mining, especially of gold, occurs in nearly all the States of the BLA. It is a crime,^[52] the third most important cause of deforestation, after cattle-raising and logging, and further harms the environment by causing serious river pollution due to the use of mercury. Between 2005 and 2015, more than 90% of deforestation caused by mining occurred on illegal sites.^[53] Like illegal logging, illegal mining is also an activity that requires significant scale. There are currently 450 illegal mining areas in the BLA region. ^[54]

II. Problems with the Existing Framework

Problems of a different nature contribute to the persistence of deforestation in the Amazon, and may be grouped into: poor initiatives concerning rules applicable to public lands, deficiencies of the rules applicable to environmental crimes, and political, cultural, and contextual issues which interfere with the proper functioning and improvement of the legal framework. These are the main subjects addressed below.

A. Rules Concerning Public Lands

One of the primary incentives for deforestation and illegal appropriation of public lands in the Amazon comes from the government itself.^[55] Under pressure from land grabbers who are politically well-connected, the federal government from time to time pardons the criminal acts of invaders and allows for the regularization of public land appropriation with the transfer of their ownership. Examples of this practice include Laws n. 11.952/2009, during the presidency of Luiz Inácio Lula da Silva, and n. 13,465/2017, during the presidency of Michel Temer, and also Provisional Measure n. 910, issued on December 11, 2019, by current President Jair Bolsonaro.^[56]

These rules progressively extended the size limits of regularizable areas and the deadlines for lands occupied up until 2004 (Law n. 11.952/2009), 2008 (Law n. 13.465/2017) and, most recently, 2014 (2019 Provisional Measure).^[57]The Provisional Measure also removed the limits on the number of regularizable properties per person or entity.^[58] Fortunately, this last rule was not approved by the Congress and lost its effects.^[59]

These laws are indicative of a Brazilian logic whereby wrongdoings that have gradually become the status quo are subsequently legalized. More than merely legitimizing the appropriation of public lands, these practices translate into incentives for the continuity of land grabbing, fostering the vicious cycle of invasion, deforestation, and posterior legalization. The referenced 2019 Provisional Measure, similar to previous laws, intended to allow for the acquisition of lands through payments, notably set at sums significantly below market value,^[60] losing billions of Brazilian Reais to the federal government.^[61] It also fosters new invasions, for it confirms the expectation that these lands will eventually be legalized.^[62]

Finally, the progressive legalization practice leads to the concentration of lands in the hands of land grabbers and large landowners, as well as violence and disputes in rural areas. Although the Provisional Measure has not been approved by Congress, regularization is still possible for invasions up to 2008 and for very low prices, based on Law n. 13.465/2017.

Additionally, the current government openly refuses to demarcate indigenous reserves or to recognize the property of traditional communities over the land they occupy,^[63] despite it being their constitutional duty.^[64]

B. Rules Concerning Crimes

Impunity is also the general rule when it comes to crimes related to land grabbing and deforestation of the Amazon. As already mentioned, land grabbing and environmental crimes involve very low prison penalties. Therefore, they do not perform a strong deterrent function. Low penalties favor the extinction of criminal liability, since the statute of limitations is calculated based on the maximum penalty prescribed by law.^[65] They can also be replaced by alternative sanctions of social services to the community or to government entities,^[66] with less moral impact over the offender. Furthermore, only a very low percentage of the fines applied are actually enforced and collected.^[67]

Secondly, the identification of invasions of public land and/or of deforestation in the Amazon rely mainly on satellite images, which depend on climate conditions. Illegal logging is even more difficult to uncover because satellite monitoring only detects areas that have been fully cleared.^[68] In addition, these crimes often occur in dense forest areas, which are difficult to access by the police. Finally, there is a great deficiency in the infrastructure needed to uphold the State apparatus, with a lack of experts, inspectors, police, and prosecutors required for timely investigations, accusation and judgements, and a widespread perception of delay in the judicial response.^[69]

C. Lack of Political Will

As the above considerations already seem to point out, the fight against deforestation and other crimes in the Amazon lacks an essential element: the political will of the Brazilian government. Deforestation, illegal timber, and mining generate jobs in many regions with poor economic alternatives. Some towns have up to twenty illegal sawmills, responsible for the employment of hundreds of workers and their families. Because of the scale of these illegal operations, many perpetrators of environmental crimes are elected as mayors, town council members, and state assembly representatives, thereby shaping local politics.^[70]

When bribes do not work, illegal loggers and miners frequently resort to intimidation and employ armed militias to escape punishment.^[71] According to a Human Rights Watch report, out of three hundred murders of forest defenders recorded by the Pastoral Land Commission since 2009, only fourteen were taken to trial.^[72]

This reluctance is reflected in a common conception that tackling illegal logging and mining will create a social problem as a result of job losses. In this regard, the regularization of public land invasion is defended on the ground that it is necessary to officialize rural settlements^[73] for low-income people, who arrived in the region, following encouragement from the government at the beginning of its occupation during the seventies, and still lack formal access to their rural property.^[74] Likewise, it is also said that formalizing property stops deforestation because the owner becomes responsible for any environmental damage.^[75] However, regularizations are evidently not targeted to low-income families and the privatization of public lands encourages new invasions.

According to environmentalists and scientists, the current environmental policy of the federal government worsens the situation. It is characterized by: (i) an apparent dismantling of environmental institutions, including the suppression of environmental agencies,^[76] the alteration of the composition of collegiate environmental bodies in order to control their decisions,^[77] and the dismissal of civil servants committed to environmental protection;^[78] (ii) repeal of rules concerning the protection of areas for permanent preservation;^[79] (iii) alleged non-use of budgetary resources directed to public environmental policies;^[80] and, finally, (iv) alleged paralysis of funds responsible for financing actions against climate change and deforestation.^[81]

In fact, in 2019, the federal government did away with the Amazon Fund Steering Committee, which was responsible for establishing the criteria for the monitoring of the use of the fund’s resources.^[82] This measure deepened the diplomatic crisis between Brazil, on the one side, and Germany and Norway on the other, the two most important donor countries for conservation initiatives in the Amazon region, leading to the suspension of donations. The situation undermines the operation of the fund which was one of the main financiers of actions to protect the Amazon and aggravates the setbacks already experienced. Despite (but possibly because of) international pressure, new command-and-control operations in the Amazon have been recently triggered.^[83] However, it is important to measure its effectiveness in terms of reducing deforestation.

III. Solution

Although the proper conservation of the Amazon goes beyond merely reforming the existing legal framework, some changes in the Brazilian legal framework can contribute in a very relevant way to this objective. In the first place, a constitutional amendment should be passed establishing a prohibition against the regularization of any and all invasions of public areas that resulted in environmental damages, except for old and low-income occupations. This measure would remove from ordinary politics any possibility of professional land grabbing regularization and would limit it to old properties of low-income people.^[84] In addition, the latter should be subjected to a prohibition on transferring ownership or land exploration to third parties for an extended period of time, in order to avoid real estate speculation over the low-income areas. Constitutional amendments in Brazil depend on a qualified quorum of 3/5 of the votes of all Congress members and on a two-round voting procedure in the Chamber of Deputies and in the Senate.^[85] It is a process that is much tougher than the one to approve regular laws, but that already proved to be viable with adequate political coordination and mobilization.^[86] In the past, the Brazilian Congress had successfully passed measures designed to protect the Amazon, without which significant environmental setbacks might have been experienced.^[87] That being said, a robust amendment setting such protections on a constitutional footing would certainly face resistance from significant rural political forces in the parliamentary body. For this reason, international criticism will likely be an important influence for moving the agenda forward. In addition, any reversal of a constitutional amendment, once approved, would need the same qualified quorum and procedure, and any repeal would face high political costs on the international stage that any new government would seek to avoid.

The protection of public areas also depends on their legal destination as conservation units or as indigenous reserves. The government’s resistance to concluding demarcation processes is a grave problem, depending principally on the executive branch. Undoubtedly, it is not a matter of political whims, but a constitutional duty. In this regard, the Constitution allows for lawsuits to overcome government omissions that violate constitutional rights.^[88] In fact, most recently, lawsuits have been filed before the Brazilian Supreme Court, seeking to hold the executive to its constitutional duties, and to challenge ostensibly unconstitutional omissions of protective action.^[89] Additionally, the Constitution also provides for class action lawsuits that can be filed before trial level courts by an even broader group of representative entities in defense of the environment.^[90] Although the option for litigation is not ideal and should be understood as the last resort, absent other solutions, these lawsuits could challenge the government’s regrettable inactions.

Further, other essential reforms for tackling impunity include amending relevant laws to increase prison sentences for environmental crimes and crimes related to the invasion of public lands. The measure would not only impose more proportional penalties in view of the seriousness of the offenses, but also make it more difficult to extinguish criminal liability through statutes of limitation and replace prison sentences with alternative penalties. Finally, when the latter are inevitable, they must be related to damage restoration or environmental protection. It is possible to foresee a resistance from the rural parliamentary representation on this matter, but it can be overcome with adequate political mobilization and international interest. In fact, the attitude from the international community and consumer markets are likely to significantly weigh in on the matter.^[91]

IV. Conclusion

The Amazon forest is approaching its tipping point from which an irreversible process of savannization will take place, with immeasurable losses for the planet and for Brazil. There is no more time to be lost in its protection. Part of the problems faced in the fight against deforestation are related to: (i) laws that provide for the regularization of deforested public lands in favor of land grabbers; (ii) the omission of the federal government to conclude the demarcation of indigenous reserves and conservation units, legal destinations which have proved to reduce deforestation; and (iii) deficiencies in the legislation aimed at punishing environmental crimes and its enforcement.

This essay proposes to face this scenario by: (i) a constitutional amendment prohibiting the regularization of deforested public lands (except for old occupation of low-income people, who deserve a special treatment); (ii) judicial actions aimed at addressing unconstitutional omissions on the demarcation of indigenous lands and conservation units; and (iii) improvement and better enforcement of laws punishing environmental crimes.

Other initiatives concerning public policies should be associated with those proposed above to fully address deforestation in the Amazon. It is imperative to strengthen institutions dedicated to environmental protection, providing them with adequate personnel, resources and structure, and ensuring their independent performance. It is important to restore public policies of monitoring and command-and-control actions, and to commit with zero deforestation. Finally, it is necessary to produce an “economy of the forest” that offers sustainable jobs to the local population and technological support for small producers, develops the bioeconomy of the forest, and makes it more valuable to have the Amazon protected than destroyed. These are themes for a future essay, but the solutions proposed here will be an essential start to this journey.

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Luís Roberto Barroso: Justice at the Brazilian Supreme Court. Professor of Law at the Rio de Janeiro State University. L.L.M., Yale Law School. S.J.D., Rio de Janeiro State University. Post-doctoral studies as Visiting Scholar at Harvard Law School. Senior Fellow at Harvard Kennedy School.

Patrícia Perrone Campos Mello: Clerk at the Brazilian Supreme Court. Professor of Law at the University Center of Brasília – UniCeub. Visiting Researcher at the Max Planck Institute for Comparative Public Law and International Law. L.L.M. and S.J.D., Rio de Janeiro State University.

[1] A Amazônia em números, Imazon – Instituto do Homem e Meio Ambiente da Amazônia [Amazon Institute of People and the Environment] (Aug. 1, 2013), https://imazon.org.br/imprensa/a-amazonia-em-numeros/.

[2] The region hosts an estimated 60,000 plant species (of which 30,000 are superior plants and 2,500 are tree species), 2.5 million arthropod species (insects, spiders, centipedes, etc.), 2,000 fish and 300 mammal species. Sarita Albagli, Amazônia: fronteira geopolítica da biodiversidade, Parcerias Estratégicas, Sept. 2001, at 5, 10.

[3] Luiz C. Barbosa, Guardians of the Brazilian Amazon Rainforest 1 (2015).

[4] Bolivia, Brazil, Colombia, Ecuador, French Guiana, Guyana, Peru, Suriname, and Venezuela.

[5] The Brazilian government created the “Legal Amazon” (Amazônia Legal) which covers the Northern states of Brazil (Acre, Amapá, Amazonas, Pará, Rondônia, and Roraima), Mato Grosso and Tocantins (Midwest region), and the eastern part of Maranhão (in the Northeast). See Lei No. 5.173, de 27 de Outubro de 1966, Diário Oficial da União [D.O.U.] de 31.10.1966 (Braz.); Lei Complementar No. 124, de 3 de Janeiro de 2007, Diário Oficial da União [D.O.U.] de 4.1.2007 (Braz.). The region called Brazilian Legal Amazon (“BLA”) includes not only the tropical rainforest biome, but also the “Pantanal” and savanna areas.

[6] Out of a total of 170 indigenous peoples in the region, 46 are totally isolated or have limited contact with civilization. See Ricardo Abramovay, Amazônia: por uma economia de conhecimento da natureza 55 (2019).

[7] Danielle Celentano et al., Welfare Outcomes and the Advance of the Deforestation Frontier in the Brazilian Amazon, 40 World Development 850, 850 (2012).

[8] PRODES – Monitoramento do Desmatamento da Floresta Amazônica Brasileira por Satélite, INPE – Instituto Nacional de Pesquisas Espaciais [National Institute of Space Research] (Nov. 11, 2020), http://www.obt.inpe.br/_OBT/assuntos/programas/amazonia/prodes.

[9] A process of substantial reduction in resources to fight deforestation started in 2011. At the same time, developmental arguments have gained force. Projects with considerable environmental impacts have been approved, while sustainable initiatives that could serve local communities have been neglected. SeeThiago Bandeira Castelo et al., Governos e mudanças nas políticas de combate ao desmatamento na Amazônia, 28 Redibec. 125, 138 (2018).

[10] Beto Veríssimo, Let’s Cut Amazon Deforestation to Zero. Here’s How, Americas Quarterly (Nov. 9, 2015), https://www.americasquarterly.org/fulltextarti_cle/lets-cut-amazon-deforestation-to-zero-heres-how/.

[11] Deforestation implies the suppression of land cover by means of cutting vegetation, while forest burning is carried out by means of fire. There are three main types of fire in the Amazon: (i) fires to clear primary forest in order to prepare the area for agriculture and pasture; (ii) fires to rid pastures of weeds in areas that have been previously cleared as well as fires used in farm-fallow systems; and (iii) fires that invade standing forests, as a consequence of the loss of control over the other two types of fire. Jos Barlow et al., Clarifying Amazonia’s Burning Crisis, 26 Global Change Biology 319, 319 (2019).

[12] But see Desmatamento na Amazônia cresce 85% em 2019, DW (Jan. 14, 2020), https://www.dw.com/pt-br/desmatamento-na-amazônia-cresce-85-em-2019/a-52006186 (indicating a significantly higher volume).

[13] Destruição de áreas protegidas na Amazônia explode com Bolsonaro, ISA – Instituto Socioambiental [Social-Environmental Institute] (Dec. 22, 2020), https://www.socioambiental.org/pt-br/noticias-socioambientais/destruicao-de-areas-protegidas-na-amazonia-explode-com-bolsonaro.

[14] The percentage of forest burning is calculated based on squared kilometers of burnt areas officially reported by the Brazilian government. See Programa Queimadas, INPE – Instituto Nacional de Pesquisas Espaciais [National Institute of Space Research], http://queimadas.dgi.inpe.br/queimadas/aq1km/ (last visited Jan. 11, 2021).

[15] See Dalila Ventura, O grupo de cientistas que descobriu as regras que orientam a vida no planeta e mudou nossa visão do mundo, BBC News Mundo (Jan. 20, 2020), https://www.bbc.com/portuguese/geral-51092849.

[16] Carlos Nobre et al., Land-use and Climate Risks in the Amazon and the Need of a Novel Sustainable Development Paradigm, 113 PNAS 10759, 10763 (2016). In fact, there are two tipping points: the destruction of 40% of forest cover or a temperature increase around 4º C. However, new studies suggest that the Amazon tipping point could be reached earlier at 20-25% of deforestation. Thomas E. Lovejoy & Carlos Nobre, Editorial, Amazon Tipping Point, Science Advances, Feb. 2018, at 1.

[17] João Moreira Salles & Bernardo Esteves, O mundo sem a Amazônia, Piauí magazine (Oct. 17, 2019), https://piaui.folha.uol.com.br/o-mundo-sem-amazonia/.

[18] See Megan Darby, Brazil: Bolsonaro Threatens to Quit Paris Climate Deal, Climate Home News (Aug. 14, 2018, 6:09 PM), https://www.climatechangenews._com/2018/08/14/brazils-bolsonaro-threatens-quit-paris-climate-deal/ (reporting on public statements by the Brazilian president about abandoning the Paris Agreement); Ana Laura Stachewski, Bolsonaro mantém Ministério do Meio Ambiente, mas esvazia pasta, Época Negócios (Jan. 22, 2019), https://epocanegocios.globo.com/_Brasil/noticia/2019/01/bolsonaro-mantem-ministerio-do-meio-ambiente-mas-esvazia_-pasta.html (on the de facto dismantlement of the Ministry of the Environment); Pedro Rafael Vilela, Bolsonaro defendeu não realizar COP-25 no Brasil, Agência Brasil (Nov. 28, 2018), https://agenciabrasil.ebc.com.br/politica/_noticia/2018-11/bolsonaro-defendeu-nao-realizar-cop-25-no-brasil (on the country’s refusal to host the UN Conference on Climate Change (COP-25) in 2019). See also Abramovay, supra note 6, at 13 (stating that since January 2019, the federal government has been sending signals that are locally interpreted as a green light for the grabbing of public lands and as halts to governmental initiatives to combat those criminal practices).

[19] See Human Rights Watch, Máfias do Ipê (Sep. 17, 2019) at 10, https://www._hrw.org/sites/default/files/report_pdf/brazil0919pt_web.pdf (noting actions by the Bolsonaro Administration to limit enforcement of Brazil’s environmental laws). See also Ministério do Meio Ambiente reduz verba de combate à mudança climática, Exame (May 7, 2019), https://exame.com/brasil/ministerio-do-meio-ambiente-reduz-verba-de-combate-a-mudanca-climatica/ (on the statements of Carlos Nobre, an internationally known environmentalist, regarding the government’s lack of interest on the environment); André Borges, Ministério do Meio Ambiente quase zera verba de combate à mudança climática, Estadão (May 2, 2019), https://sustentabilidade._estadao.com.br/noticias/geral,ministerio-do-meio-ambiente-quase-zera-verba-de-com_bate-a-mudanca-climatica,70002818539/.

[20] Abramovay, supra note 6, at 13.

[21] Command-and-control actions relate to operations to prevent and combat deforestation and other criminal activities in the Amazon, involving the use of intelligence, several state bodies, and usually the Armed Forces.

[22] For examples of such literature see Brenda Brito et al., Stimulus for Land Grabbing and Deforestation in the Brazilian Amazon, Environmental Research Letters, June 2019, at 1, 7 (concerning the problems related to land grabbing regularization and the importance of allocating more areas for conservation);Helen Ding et al., Climate Benefits, Tenure Costs: The Economic Case for Securing Indigenous Land rights in the Amazon 4-5 (2016), https://files.wri.org/s3fs-public/Climate_Benefits_Tenure_Costs.pdf (regarding secure tenure of indigenous lands, achieved through demarcation, as a strategy to reduce deforestation); Paulo Barreto & Marília Mesquita, Imazon, Como prevenir e punir infrações ambientais em áreas protegidas na Amazônia? 39-40 (2009) (concerning the necessity of command-and-control operations and measures to make criminal prosecution more effective, among others); Carlos Nobre et al., Land-use and Climate Risks in the Amazon and the Need of a Novel Sustainable Development Paradigm, 113 PNAS 10759, 10764-10766 (2016) (proposing a new development model for the Amazon).

[23] Luís Roberto Barroso, Curso de Direito Constitucional Contemporâneo 383-84, 403-07 (2020); Patrícia Perrone Campos Mello, El Papel del Juez Transformador en Brasil: Ius Constitutionale Commune, Avance y Resiliencia (Max Planck Institute for Comparative Public Law and International Law, Research Paper No. 2020-05, 2020) (demonstrating how the new Constitution and a strong judiciary had a transformative role in Brazil), https://papers.ssrn.com/sol3/papers._cfm?abstract_id=3672658.

[24] Conservation units account for 22% of the BLA. See Elis Araújo et al., Imazon, Unidades de Conservação mais desmatadas da Amazônia Legal (2012-2015) 8 (2017), https://imazon.org.br/PDFimazon/Portugues/livros/UCS%20mais%20_desmatadas%20Amazonia_2012-2015.pdf.

[25] Lei No. 9.985, de 18 de Julho de 2000, Diário Oficial da União [D.O.U.] de 19.7.2000, arts. 7(I), 8-13 (Braz.) (The full conservation units are composed of ecological stations, biological reserves, national parks, natural monuments, and wildlife refuges, each one of them with specific features).

[26] Id. arts. 7(II), 14-21 (The conservation units of sustainable use are composed of areas of environmental protection, areas of relevant environmental interest, national forests, extractive reserves, fauna reserves, sustainable development reserves, and natural patrimony reserves).

[27] Constituição Federal [C.F.] [Constitution] art. 225(para. 1)(III) (Braz.).

[28] Indigenous lands account for 23% of the BLA. 98.25% of all Brazilian indigenous lands are located in the Amazon. See Localização e extensão das TIs, ISA – Instituto Socioambiental [Social-Environmental Institute] (Jan. 25, 2021), https://pib.socioambiental.org/pt/Localização_e_extensão_das_Tis.

[29] Constituição Federal [C.F.] [Constitution] art. 231.

[30] Id. Indigenous lands are recognized through an administrative demarcation process carried out by the federal government, which ends up with a formal act declaring the status and limits of those lands. See Decreto No. 1.775, de 8 de Janeiro de 1996, Diário Oficial da União [D.O.U.] de 09.01.1996, art. 5 (Braz.).

[31] Constituição Federal [C.F.] [Constitution] art. 231(para. 3).

[32] José Heder et al., Instituto de Pesquisa Ambiental da Amazônia [Amazon Environmental Research Institute], A Grilagem de terras públicas na Amazônia brasileira 17 (2006).

[33] Land grabbers are offenders who seek to appropriate lands by means of invasion and falsification of documents.

[34] Ding et al., supra note 22, at 4. See also Abramovay, supra note 6, at 55-56; Claudia Azevedo-Ramos et al., Lawless Land in no Man’s Land: the Undesignated Public Forests in the Brazilian Amazon, 99 Land Use Policy 1, 1-3 (2020); Oswaldo Braga, Invasores promovem maior desmatamento em Terras Indígenas em 11 anos, ISA – Instituto Socioambiental [Social-Environmental Institute] (Nov. 18, 2019), https://www.socioambiental.org/pt-br/noticias-socioambientais/invasores-prod_uzem-maior-desmatamento-em-terras-indigenas-em-11-anos (stating that only 1.3% of deforestation of the Brazilian Amazon takes place in indigenous lands, after examining 207 out of 424 of the mentioned lands).

[35] Lei No. 9.985, de 18 de Julho de 2000, Diário Oficial da União [D.O.U.] de 19.7.2000, art. 6(III) (Braz.).

[36] Lei No. 5.371, de 5 de Dezembro de 1967, Diário Oficial da União [D.O.U.] de 6.12.1967, art. 1(I), (II), (VII) (Braz.).

[37] Sue Branford, Brazil’s Bolsonaro Presses Anti-indigenous Agenda; Resistance Surges, Mongabay (Jun. 27, 2019), https://news.mongabay.com/2019/06/brazils-bols_onaro-presses-anti-indigenous-agenda-resistance-surges/.

[38] Constituição Federal [C.F.] [Constitution] art. 191 (stating that real public property may not be acquired by usucapio).

[39] Lei No. 8.666, de 21 de Junho de 1993, Diário Oficial da União [D.O.U.] de 22.6.1993, art. 17(I) (Braz.).

[40] Lei No. 4.947, de 6 de Abril de 1966, Diário Oficial da União [D.O.U.] de 11.04.1966, art. 20 (Braz.) (concerning public lands); Decreto-Lei No. 2.848, de 7 de Dezembro de 1940, Diário Oficial da União [D.O.U.] de 31.12.1940, art. 161(para. 1)(II) (Braz.) (concerning lands in general).

[41] Invaders are those who appropriate lands for their own use or for speculation and selling to third parties.

[42] Heder et al., supra note 32, at 17-19.

[43] The involvement of political and economic power makes it difficult to fight against such a system. Illegal activities generate jobs and help in the election of representatives, who ensure their permanence in power. See discussion infra section III(C). In addition, these activities involve strong networks of organized crime. See Human Rights Watch, Rainforest Mafias (Sep. 2019) at 30-39, https://www.hrw.org/_sites/default/files/report_pdf/brazil0919_web.pdf.

[44] Environmental Crimes Are on the Rise, So Are Efforts to Prevent Them, U.N. Environment Programme (Sep. 21, 2018), https://www.unenvironment.org/news-and-stories/story/environmental-crimes-are-rise-so-are-efforts-prevent-them (stating that environmental crimes rank most likely fourth among criminal activities in the world, behind drugs, counterfeiting and human trafficking, with an estimated annual income between $91 billion and $259 billion).

[45] Lei No. 9.605, de 12 de Fevereiro de 1998, Diário Oficial da União [D.O.U.] de 13.2.1998, arts. 38, 38-A, 50, 50-A (Braz.).

[46] See Ministério do Meio Ambiente [Ministry of the Environment], Plano de Ação para a Prevenção e Controle do Desmatamento na Amazônia Legal, Primeira Fase 10 (2004), http://redd.mma.gov.br/images/publicacoes/PPCDAM__fase1.pdf; Ministério do Meio Ambiente [Ministry of the Environment], Plano de Ação para a Prevenção e Controle do Desmatamento na Amazônia Legal, Segunda Fase 34 (2009–2011), http://redd.mma.gov.br/images/publicacoes/PPCDA_M_fase2.pdf.

[47] Lei No. 9.605, de 12 de Fevereiro de 1998, Diário Oficial da União [D.O.U.] de 13.2.1998, art. 41 (Braz.) (“To set fire on woods and forests. Sanction – two to four years of imprisonment, and fines”).

[48] Id. arts. 45, 46 and single paragraph. See Human Rights Watch, supra note 43 (concerning the crimes of illegal logging and trade).

[49] See INTERPOL-UNEP, Strategic Report: Environment, Peace and Security – A Convergence of Threats, p. 43 (Dec. 2016), https://www.unep.org/resources/report/_strategic-report-environment-peace-and-security-convergence-threats (download document). See also Elaíze Farias, Amazônia em chamas: 90% da madeira exportada é illegal, diz Polícia Federal, Brasil de Fato (Sep. 16, 2019), https://www.brasil_defato.com.br/2019/09/16/amazonia-em-chamas-90-da-madeira-exportada-sao-ilegais-diz-policia-federal/ (reporting higher estimates).

[50] See Human Rights Watch, supra note 43, at 35-36.

[51] Clara Roman, Na Amazônia, a destruição é muito maior do que conseguimos ver, ISA – Instituto Socioambiental [Social-Environmental Institute] (Nov. 22, 2019), https://www.socioambiental.org/pt-br/noticias-socioambientais/na-amazon_ia-a-destruicao-e-muito-maior-do-que-conseguimos-ver; Scott Wallace, Inside the Faltering Fight against Illegal Amazon Logging, National Geographic (Aug. 28, 2019), https://www.nationalgeographic.com/environment/2019/08/brazil-logging/.

[52] Lei No. 9.605, de 12 de Fevereiro de 1998, Diário Oficial da União [D.O.U.] de 13.2.1998, art. 44 (Braz.).

[53] Ana Ionova, Illegal Gold Rush Causing “Irreversible Damage” to Rivers in the Brazilian Amazon, Mongabay (Dec. 20, 2019), https://news.mongabay.com/2019/12/il_legal-gold-rush-causing-irreversible-damage-to-rivers-in-the-brazilian-amazon/.

[54] See id.

[55] Brenda Brito, Governo não deve premiar os ladrões de terra na Amazônia, El País Brasil (Sep. 9, 2019), https://brasil.elpais.com/brasil/2019/09/09/opinion/156_8042120_747554.html (reporting that regularization laws of invaded lands, upon payment of insignificant amounts, were passed by State legislative bodies of the States of Pará, Mato Grosso and Amazonas).

[56] Provisional measures are issued by the President, have the status of law, but have to be confirmed by Congress. If they are not confirmed within 60 days (extendable for another 60 days) they expire. See Constituição Federal [C.F.] [Constitution] art. 62(para. 3). Provisional Measure n. 910/2019 expired on May 19, 2020. As a result, the 2014 occupation deadline was not met. It is important, however, to take the rule into account in order to understand the broader picture described in this section. See Ato Declaratório No. 36, de 20 de Maio de 2020, Diário Oficial da União [D.O.U.] de 21.05.2020 (Braz) (regarding the expiration of Provisional Measure n. 910/2019).

[57] Lei No. 11.952, de 25 de Junho de 2009, Diário Oficial da União [D.O.U.] de 26.06.2009, art. 5(IV) (Braz.) (amended by Lei No. 13.465, de 6 de Setembro de 2017, Diário Oficial da União [D.O.U.] de 8.9.2017 and by Provisional Measure No. 910, de 10 de Dezembro de 2019, Diário Oficial da União[D.O.U.] de 11.12.2019). Law n. 11.952/2009 and Law n. 13.465/2017 were both object of lawsuits before the Brazilian Supreme Court. Law n. 11.952/2009 was held to be partially unconstitutional on the grounds that it permitted regularization without any kind of inspection or control over the lands. The problem concerning land grabbers was not addressed (S.T.F., Pleno, ADI 4,269. Relator: Min. Edson Fachin, 18.10.2017, Diário Oficial da União [D.O.U.] de 01.02.2019 (Braz.). In the second lawsuit plaintiffs argue that Law n. 13.465/2017 favors the illegitimate transfer of public goods on behalf of people of medium and high income, and is still pending judgement (S.T.F., Pleno, ADPF 708, Relator: Min. Luís Roberto Barroso, first petition of the plaintiffs (June 5, 2020).

[58] Lei No. 11.952, de 25 de Junho de 2009, Diário Oficial da União [D.O.U.] de 26.06.2009, art. 1 (Braz.).

[59] See supra note 56.

[60] Id. art. 12.

[61] The prices vary from 10% to 50% of the value attributed by government officials to the bare land value (“valor da terra nua”), i.e., the value of the land without vegetation.

[62] Brenda Brito et al., supra note 22, at 2.

[63] The current Brazilian president has declared that in his government he would not demarcate any centimeter of indigenous lands or of other traditional people lands. Demarcation is understood as an obstacle to the expansion of the agribusiness. See What Brazil’s President, Jair Bolsonaro, Has Said about Brazilian Indigenous Peoples, Survival, https://www.survivalinternational.org/articles/3540-Bolsonaro (last visited Jan. 11, 2021); Joelmir Tavares, Bolsonaro Reaffirms his Power over the Demarcation of New Indigenous Territories, Folha de São Paulo (Jun. 24, 2019, 1:34 PM), https://www1.folha.uol.com.br/internacional/en/brazil/2019/06/bolsonaro-reaffirms-his-power-over-the-demarcation-of-new-indigenous-territories.shtml.

[64] See supra section I(A).

[65] Decreto-Lei No. 2.848, de 7 de Dezembro de 1940, Diário Oficial da União [D.O.U.] de 31.12.1940, art. 109 (Braz.).

[66] Id.

[67] Tribunal de Contas da União [Federal Audit Court], Arrecadação de multas administrativas (2009) (reporting that between 2005 and 2009 less than 1% of the fines applied by Ibama were effectively collected), https://portal.tcu.gov.br/tcu/_paginas/contas_governo/contas_2009/ (click on the tab “Versao simplificada,” then click on “Arrecadação de multas administrativas” report on the top right corner). The situation has not improved much over time. See Bárbara Libório, Por que o IBAMA arrecada só 5% das multas ambientais que aplica, Aos Fatos (Jan. 31, 2019, 6:25 PM), https://aosfatos.org/noticias/por-que-o-ibama-arrecada-so-5-das-multas-ambientais-que-aplica/. Ibama – Instituto Brasile-_iro do Meio Ambiente e dos Recursos Naturais [Brazilian Institute for Environment and Natural Resources] is a federal environmental agency responsible for environmental licensing, authorization for the use of natural resources, and environmental inspection, monitoring and control. Lei No. 7.735, de 22 de Fevereiro de 1989, Diário Oficial da União [D.O.U.] de 23.02.1989, art. 2(II) (Braz.).

[68] Human Rights Watch, supra note 43, at 31.

[69] Paulo Barreto & Marília Mesquita, Instituto do Homem e Meio Ambiente da Amazônia, Como prevenir e punir infrações ambientais em áreas protegidas na Amazônia? 30 (2009).

[70] See Human Rights Watch, supra note 43, at 34-35.

[71] See Human Rights Watch, supra note 43, at 34.

[72] See Human Rights Watch, supra note 19, at 5-6.

[73] A rural settlement is formed by a set of independent agricultural units, installed by the government, generally favoring poor families, small farmers and/or rural workers who are unable to acquire rural property on their own, enabling their access to land. See Assentamentos, Ministério da Agricultura, Pecuária e Abastecimento [Ministry of Agriculture, Livestock and Food Supply] (Jan 28, 2020), https://www.gov.br/incra/pt-br/assuntos/reforma-agraria/assentamentos.

[74] Ministério da Agricultura, Pecuária e Abastecimento [Ministry of Agriculture, Livestock and Food Supply], Regularização Fundiária: cenário e legislação 1 (2020), https://www.gov.br/agricultura/pt-br/assuntos/noticias/cart_ilha-explica-processo-de-regularizacao-fundiaria-na-amazonia/regularizacaofundiari_acenariolegislacao.pdf.

[75] See id. at 10-11.

[76] Decreto No. 9.672, de 2 de Janeiro de 2019, Diário Oficial da União [D.O.U.] de 2.1.2019 (Braz.) (extinguished the Secretariat of Climate Change and Forest of the Ministry of Environmnet); Decreto No. 9.683, de 9 de Janeiro de 2019, Diário Oficial da União [D.O.U.] de 10.1.2019 (Braz.) (extinguished the Subsecretariat of Environment, Energy, Science and Technology of the Foreign Ministry). One year and a half later, Decreto No. 10.455, de 11 de Agosto de 2020, Diário Oficial da União [D.O.U.] de 12.8.2020 (Braz.) repealed Decreto No. 9.672, de 2 de Janeiro de 2019 (replacing the old Secretary of International Relations of the Ministry of Environment by a Secretary of Climate and International Relations). The concrete results of this measure are still unclear.

[77] Decreto No. 9.806, de 28 de Maio de 2019, Diário Oficial da União [D.O.U.] de 29.5.2019 (Braz.).

[78] Id.

[79] Resolução CONAMA/MMA No. 500, de 19 de Outubro de 2020, Diário Oficial da União [D.O.U.] de 21.10.2020 (Braz.).

[80] Suely Araújo, Observatório do Clima [Climate Observatory], (In)execução dos recursos orçamentários do MMA – Administração Direta (2020), at. 3, 20.

[81] S.T.F., ADPF 708, Relator: Min. Luís Roberto Barroso, first petition of the plaintiffs (June 5, 2020) (concerning the government’s omission to use the resources of the National Fund for Climate Change); ADO 59, Relator: Min. Rosa Weber, first petition of the plaintiffs (June 5, 2020) (regarding the paralysis of the Amazon Fund, whose purpose is to finance the fight against deforestation in the forest). Both lawsuits, yet to be decided, held public hearings with considerable visibility. At the public hearing of the first lawsuit, the government informed the release of the resources of the first fund.

[83] Operação Verde Brasil aplica cerca de R$ 142 milhões em multas e combate 1.835 focos de incêndio, Governo do Brasil (Oct. 30, 2019), https://www.gov.br/pt-br/noticias/meio-ambiente-e-clima/2019/10/operacao-verde-brasil-aplica-cerca-de-r-142-milhoes-em-multas-e-combate-1-835-focos-de-incendio.

[84] As for the latter group, as well as in cases of land reform in favor of low-income groups (“reforma agrária”), which are not the object of this paper, specific public policies need to be developed. These are groups whose families have been encouraged by the government to migrate to the region in the past and/or who are in irregular situations in part due to poverty and lack of government support. See supra section II(C), concerning low-income settlements.

[85] Constituição Federal [C.F.] [Constitution] art. 60(para. 2).

[86] The Brazilian Constitution has undergone 116 amendments in the 32 years that it has been in force.

[87] As an example, it rejected a Provisional Measure that provided for the transfer of the authority to demarcate indigenous lands from the National Indian Foundation (“FUNAI”) to the Ministry of Agriculture, which is in charge of agribusiness interests. See Congresso cancela trecho de MP que pôs demarcação de terra indígena na Agricultura, Câmara dos Deputados [Chamber of Deputies] (Jun. 26, 2019), https://www.camara.leg.br/noticias/560846-congresso-cancela-trecho-de-mp-que-pos-demarcacao-de-terra-indigena-na-agricultura/. It also approv-_ed the Paris Agreement, the Biologic Diversity Statute and the National Policy on Climate Change. See Decreto Legislativo No. 140, de 16 de Agosto de 2016, Diário Oficial da União [D.O.U.] de 17.08.2016, art. 1 (Braz.); Lei No. 13.123, de 20 de Maio de 2015, Diário Oficial da União [D.O.U.] de 14.05.2015 (Braz.); Lei No. 12.187, de 29 de Dezembro de 2009, Diário Oficial da União [D.O.U.] de 30.12.2009 (Braz.).

[88] Constituição Federal [C.F.] [Constitution] arts. 102(para. 1), 103(para. 2); Lei No. 9.868, de 10 de Novembro de 1999, Diário Oficial da União [D.O.U.] de 11.11.1999, arts. 12-A, 12-B (Braz.); Lei No. 9.882, de 3 de Dezembro de 1999, Diário Oficial da União [D.O.U.] de 6.12.1999, art. 1 (Braz.).

[89] See supra note 81. Recently, a BBC News report denounced that plots of the Amazon Forest located in indigenous lands were being sold through Facebook. See João Fellet & Charlotte Pamment, Amazon Rainforest Plots Sold via Facebook Marketplace Ads, BBC News (Feb. 26, 2021),https://www.bbc.com/news/technology-56168844. The justice rapporteur of the related constitutional lawsuit determined to the Attorney General’s Office and to the Ministry of Justice and Public Security to investigate the facts. S.T.F., Pleno, ADPF 709, Relator: Min. Luís Roberto Barroso (March 2, 2021). This lawsuit is also pending final judgement.

[90] Constituição Federal [C.F.] [Constitution] art. 129(III); Lei No. 7.347, de 24 de Julho de 1985, Diário Oficial da União [D.O.U.] de 25.07.1985, arts. 1(I), 3, 5 (Braz.).

[91] For examples of the strength of the international community on the matter, it is worth noting the cases related to the soy and beef moratorium, in which the international pressure has led to the execution of agreements by means of which soy and meat producers committed themselves to abolish deforestation from their production chains. See Holly Gibbs et al., Brazil’s Soy Moratorium, 347 Science 377 (2015); Daniel Nepstad et al., Slowing Amazon Deforestation through Public Policy and Interventions in Beef and Soy Supply Chains, 344 Science 1118 (2014); Christian Brannstrom et al., Compliance and Market Exclusion in Brazilian Agriculture: Analysis and Implications for “Soft” Governance, 29 Land Use Policy 357 (2012).

Editors: Celia Reynolds & Trinidad Alonso Quiros

Forum, Online Scholarship

Legal Disruption in Dispute Resolution in the Age of COVID-19

February 4, 2021

Editorial note: This article is part of the ILJ Forum series “International Cooperation and Global Governance in the Era of COVID-19 and Beyond.”

By: Lance Ang

I. Introduction

The term “disruption”, inasmuch as it has become overused today, could not be more apt to describe the inflection point in dispute resolution that marked the year 2020. The COVID-19 pandemic has posed a substantive challenge to contractual doctrine and court procedure, and more broadly, to the rule of law and administration of justice. COVID-19 has presented further potential ramifications in respect of two issues of particular importance in cross-border commercial dispute resolution:[1]

(a) transaction risk—to what extent should contractual default due to COVID-19 be left to be negotiated between the parties themselves?

(b) venue risk—should the jurisdiction agreement be enforced notwithstanding the lack of capacity or difficulties by the court with remote hearings in the chosen venue?

The manner in which these two issues are resolved going forward would determine how the fallout from cross-border contractual defaults may be properly mitigated, and consequently the impact on commercial certainty and the disruption of global supply chains. In this article, I consider the impact that the pandemic has had on commercial dispute resolution, focusing on how courts in Asia, with Singapore and China as case studies, have responded to this changing landscape, and the potential responses to enhance global governance in transnational commercial dispute resolution beyond the pandemic.

II. Contractual Defaults

Back in March 2020, the U.K. Lord Chief Justice warned about “the inevitable backlogs and delays that are building in the system.” The wide use of the common law as the proper law in cross-border transactions is attributed to the commercial certainty stemming from the traditional reluctance to interfere with the parties’ contractual arrangements and discharge a party from contractual performance even when circumstances have changed. In light of COVID-19, however, such an approach has risked a surge in contractual defaults and insolvencies, generating such a backlog of cases as feared and the disruption of supply chains. To mitigate this, the Singapore Parliament introduced a “legal circuit breaker” by legislating a moratorium of contractual claims for a limited category of contracts affected by the pandemic. This temporary relief, however, does not necessarily apply to cross-border agreements and preserves the parties’ rights to continue proceedings after a sunset period.[2] This stands in stark contrast with the Chinese civilian approach. The Supreme People’s Court (“SPC”), the highest court in China, issued a series of “guiding opinions” to mitigate the rise in contractual disputes arising from the pandemic.[3] They provide that Chinese courts may order the “modification” of the contract where continuing performance would cause “manifest unfairness” or for the parties to “share losses.”[4]

III. Digital Courts

Fears of delays in court proceedings were certainly magnified when the onset of the virus led to rapid court closures and the adjournment of hearings arising from the imposition of lockdowns across jurisdictions that affected up to 50% of the global population in early 2020. Yet, such delays were at least partially mitigated when courts and arbitral institutions across a broad swath of jurisdictions promptly instituted new procedures for hearings to be conducted virtually through video conferencing and other forms of remote technology. “Remote courts” were reported to be operational in at least 56 countries by July 2020. Such a development followed the preceding digitization of courts and reinforces the growing move towards “online dispute resolution” to enhance efficiency and facilitate access to justice.[5] When the country went into lockdown, the Singapore Parliament promptly passed legislation in April 2020 to liberalize the use of remote communication for court proceedings where there are sufficient administrative and technical facilities and arrangements in place, and it is “in the interests of justice to do so”. This followed the earlier work of the Singapore judiciary towards the model of an “online court” in a justice system constructed on the principles of “accessibility,” “proportionality,” and “peacebuilding”.

Likewise, for a country whose rule of law otherwise invites broad skepticism, China stands at the forefront in this development and has leapfrogged other jurisdictions in its significant investment in cutting-edge technologies as part of the concept of “smart courts”implemented by the SPC in 2015. This includes the roll-out and development of artificial intelligence (“AI”) tools for adjudication processes and case management, and novel technologies such as blockchain, distributed ledgers, cloud computing, and smart contract solutions in several local and specialized courts. The establishment of “internet courts” in Hangzhou, Beijing, and Guangzhou is emblematic of this fascinating development, in which the entire litigation process for millions of e-commerce disputes may be conducted online, including through the use of a “mobile court” app that can be downloaded on WeChat.

Importantly, notwithstanding the rapid paradigm shift toward remote hearings during COVID-19, 71.5% of lawyers surveyed by the Civil Justice Council in England and Wales were positive about their experiences for civil hearings that were mostly conducted in May 2020, even though 63.9% felt that video hearings were slightly worse or worse than physical hearings due to technical difficulties and communication problems.

IV. Responses

With respect to transaction risk, the case may be made that it would be best to leave the matter of contractual defaults to be resolved by the market. On this view, the parties should bear the risks and losses as allocated between themselves of their choice of proper law in the contractual bargain, not least in view of the importance of maintaining commercial certainty and the sanctity of contract beyond the pandemic. If the contrasting common and civil law approaches towards attributing losses discussed above are any indication, this calls for commercial certainty that the validity and effect of the choice of law agreement will be duly upheld in the event of a dispute. This would allow parties to mitigate their transaction risk and litigation costs by, for example, determining for themselves the extent to which force majeure, material adverse change and other doctrines for the discharge of contractual performance may be invoked under the proper law. Yet, arguably this approach only holds true where any failure of contractual performance is the result of events within the control of the contracting parties and which could have been reasonably foreseen. In exceptional situations such as an uncontrolled pandemic, a measured form of state intervention may be called for in respect of transactions entered into prior to and materially affected by such situations. For such contracts, short of a wholesale revision of contractual doctrine and reallocating the parties’ losses without due regard to the parties’ intentions, the courts should aim in the first instance to facilitate the continuation or re-negotiation of a viable contract rather than bringing it to an end. Where the parties’ intentions with respect to such situations have not been adequately addressed in the agreement, the courts (or the legislature, as may be preferable) should strive to allow for just and equitable solutions to enforce the parties’ legitimate expectations as to how their losses should be allocated in light of current circumstances. This may provide the basis for business confidence to facilitate an eventual economic recovery without undermining commercial certainty by rewriting the parties’ bargain on which business confidence relies. It must be emphasized, however, that such state intervention may be a necessary but blunt instrument that is unlikely to address the specific circumstances of each case, nor should such interventions (if enacted at all) be expected to last beyond than the immediate term. It ultimately falls on the parties which are best positioned to mitigate the impact of similar crises through appropriate contractual risk management.

Where venue risk is concerned, the imposition, lifting, and possible re-imposition of lockdowns across jurisdictions at different times in different phases and the uneven technological capacities and safeguards in domestic courts (with some evidently more advanced than others) pose the question as to whether the default position of giving effect to the parties’ autonomy pursuant to the jurisdiction agreement should hold. Under Article 6(d) of the Hague Convention on Choice of Court Agreements, the non-chosen court has very limited discretion to accept jurisdiction where the parties have agreed for proceedings to take place in another court exclusively. As an exception, the non-chosen court may do so if “for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed.” This exception is intended to set a very high threshold equivalent to the frustration of the agreement and only applies where it would be near to impossible to bring proceedings before the chosen court, such as in the case of war or “where the chosen court no longer exists.” A similarly high threshold exists in the common law requirement of “strong cause” under which factors of procedural inconvenience are disregarded. Arguably, as with transaction risk discussed above, the current circumstances should privilege the objective of ensuring that proceedings occur in the optimal forum to ensure the effective resolution of disputes in accordance with the legitimate expectations of the parties, particularly where the procedural disadvantages arising from COVID-19 in the chosen venue were reasonably unforeseeable by the parties at the time of contracting. A less pedantic approach in the current circumstances would serve to mitigate procedural delays, litigation costs, and uncertainty of parties in pursuing or defending a claim.

If anything, COVID-19 is likely to catalyze further investment in online dispute resolution and AI, for better or worse, to enhance procedural efficiency and possibly level the playing field. It is likely to accelerate the competition between courts and alternative dispute resolution tribunals as service providers, and presages the move toward Frank Sander’s concept of a “multi-door courthouse”[6] in terms of providing an array of procedural options which meet the needs of disputants as consumers depending on the requirements of their dispute at hand. One should also not discount the possibility of adjudicators with autonomous cognitive abilities (i.e. “robot judges”), as Richard Susskind suggests. The digitization of dispute resolution is certainly not unprecedented and is a long time coming. AI is already embedded in legal practice and dispute resolution processes in the form of tools to analyze voluminous amounts of data and documentation and perform routine tasks. Data analytics and algorithms are already employed in the United States to predict litigation outcomes. Looking ahead, AI-driven data analysis—including machine learning, predictive coding and blockchain—have the potential to enable parties to anticipate, identify and predict outcomes and automate processes during different stages of a dispute, and contribute to early settlement while saving time and costs.

Such novel technologies are, of course, not without risks, and should be the subject of further detailed discussion. Such risks include the lack of transparency, ethical concerns, algorithmic bias, machine error with respect to such processes, and, most importantly, the potential impingement on procedural fairness and due process depending on the manner in which online dispute resolution is conducted and whether each party is able to present or defend its case effectively or secures undue procedural advantages over the other. Broader concerns include regulatory safeguards for confidentiality, data protection and cybersecurity, along with restructuring of the legal profession. A solution may be to permit the use of such technologies for routine lower-value non-complex claims, such as debt recovery. For more complex higher-value claims, the parties may be allowed to opt-in to such mechanisms by default subject to judicial supervision. It also calls for better understanding of the limitations of AI and the extent to which certain processes may be fully digitizable depending on how fit for purpose the technology is, particularly with respect to matters which call for value judgment, for example. To encourage innovation in experimental technologies and identify the regulatory safeguards required, selected courts may be allocated as sandboxes to test such technologies for wider adoption, similar to what the Dubai International Financial Centre courts introduced recently.

V. Concluding Thoughts

As noted by the World Bank, judicial efficiency and quality, and access to courts affect firms’ productivity, minimize transaction costs and improve economic development. COVID-19 has shown that the potential of disruptive technologies is not the enemy but the handmaiden of the rule of law, provided that the risks of such technologies are identified and managed accordingly. At a basic level, it is necessary to identify what the underlying requirements of the rule of law and administration of justice are in light of changing circumstances, the extent to which such technologies may serve as an enabler to meet such requirements, and the regulatory oversight required to manage the concomitant risks and costs. After all, justice should not only be done, but should manifestly and undoubtedly be seen to be done. To support cross-border commercial dispute resolution in the new normal as we emerge from the pandemic, one may hope for the prospect of further investment towards new interoperability technologies to facilitate digital connectivity between courts across borders, which may form the basis of a future global platform for the online resolution of disputes.

[1] Richard Fentiman, International Commercial Litigation 14 (2d ed. 2015).

[2] Author’s note: As of the time of writing, the sunset period ends in October 2020 but may be further extended.

Editor’s note: The Ministry of Law of Singapore has extended the relief period. See here for a summary of the relief periods for various kinds of contracts.

[3] SPC, “Guiding Opinion I on Lawfully and Properly Adjudicating Certain Issues Regarding Civil Cases Involving the COVID-19 Pandemic” [2020] No. 12, issued and effective as of Apr. 16, 2020; SPC, “Guiding Opinion II on Lawfully and Properly Adjudicating Certain Issues Regarding Civil Cases Involving the COVID-19 Pandemic” [2020] No. 17, issued and effective as of May 15, 2020.

[4] Id. See Qiao Liu, COVID-19 in Civil or Commercial Disputes: First Responses from Chinese Courts, 8(2) Chinese J. Comp. L. 485, 488–93 (2020).

[5] See generally Richard Susskind, Online Courts and the Future of Justice (2019).

[6] See generally Frank E.A. Sander, Varieties of Dispute Processing: Address Before the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, 70 F.R.D. 111 (1976).

Executive Editor: Yixian Sun

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Essays, Online Scholarship

How to Do Research in International Law? A Basic Guide for Beginners

January 25, 2021

By: Eliav Lieblich*

[Click here for PDF]

Introduction

So, you want to do research in international law? Good choice. But it can be difficult, especially in the very beginning. In this brief guide for students taking their first steps in legal research in international law, I will try to lay down the basics—just enough to nudge you towards the rabbit-hole of research. This guide is about how to think of and frame research questions, primary sources, and secondary sources in the research of international law. Or, to be precise, it is about how I think about these things. It is not about how to write in the technical sense, how to structure your paper, or about research methods (beyond some basic comments). This guide also focuses mostly on questions that are especially pertinent when researching international law. For this reason, it does not address general questions such as how and when to cite authorities, what are relevant academic resources, and so forth.

As you begin your work, you will find that legal research in international law is both similar to and different from legal research in domestic law. Research in international law and domestic law are similar in their basic requirements: 1) you need a research question, 2) you need to understand the problem you are approaching (both in terms of the legal doctrine and its underlying theory), 3) you need a method to answer your question. and 4) you need to rely on primary and secondary sources. Research in international law is different because international law, in its quest to be universal, is practiced everywhere. There is no “single” international law, and for this reason it is an area of law that is almost always contested. Furthermore, international law is not hierarchical unlike most domestic legal systems, and many times, several legal frameworks might apply to one single question (“fragmentation”).[1] Additionally, international law’s sources include customary law, which is notoriously difficult to pinpoint.^[2] This makes describing “the law” as an object of research much trickier. This guide attempts to give you the initial tools to navigate this terrain, but rest assured that it is also difficult for experienced researchers.

The guide is structured as follows. Section 2 is about research questions. It first offers a simplified typology of research question, including a few words on theory and method, and then suggests some thoughts about thinking of and framing your question. Section 3 is about secondary and primary sources in the research of international law. It includes some advice about the way to approach international legal scholarship in a world of hegemony and information overflow. The guide then becomes a bit more technical, offering tips about finding primary sources relevant for the research of international law.

A caveat is in order. This guide does not seek to offer the most theoretically robust or comprehensive introduction to international legal research. Rather, it should be viewed as practical advice to help you take your first steps into the field. The guide, of course, reflects my own understanding. Other researchers might approach these issues differently.

I. Research Questions

A. Types of Research Questions: Descriptive, Normative, and Critical

Finding a research question will be one of the most important and challenging parts of your research. Every research has a question at its foundation. The research question is simply the question that your research seeks to answer. In all fields of legal scholarship, there are basically three families of research questions: 1) descriptive research questions, 2) normative research questions, and 3) critical research questions. Very broadly speaking, descriptive questions seek to tell us something about the legal world as it is. Normative questions ask what ought to be the state of things in relation to law. Critical questions seek to expose the relations between law and power, and, as I explain later, are somewhat in the middle between descriptive and normative questions. In truth, there is a lot of interaction between all three types of questions. But for our sake, we keep it simple, and as a starting point for research, it is better to think about research questions in these terms. Thinking clearly about your research question will help you frame your work, structure your paper, and look for relevant sources.

Descriptive research questions are questions about the state of things as they are. Much of traditional international legal scholarship is descriptive in the sense that it seeks to describe “the law” as it is, whether in abstract (e.g., “what is the content of the Monetary Gold principle in international adjudication?”) or in relation to a specific situation. For instance, in their excellent writing on Yemen, Tom Ruys and Luca Ferro look at the Saudi-led intervention in the Yemeni Civil War and ask whether that intervention is lawful.^[3] From a theoretical standpoint, this type of research can be broadly described as positivist, in the sense that it looks only into legally relevant sources (the lex lata), as autonomous bodies of knowledge. We can call such questions descriptive doctrinal research questions since they seek to analyze and describe the doctrine from an internal point of view. Of course, some doubt whether it is at all possible to describe authoritatively what the law “is,” beyond very basic statements, without making any normative judgments about what “the law” should be. It could even be said that the mere decision to discuss law as an autonomous sphere is a value-laden choice. These and related critiques have been levelled against doctrinal scholarship for over a century by legal realist and critical approaches, both domestically and internationally.^[4] This resulted in the gradual marginalization of such research questions, at least in the United States. Yet, from a global perspective, doctrinal research into international law remains a central strand of research.

Doctrinal questions are not the only type of descriptive research questions. Descriptive questions can also follow the tradition of law and society approaches. This type of research looks at the law from the outside and is mostly interested in law’s interaction with society, rather than in legal doctrine per se. Historically, the emergence of this way of thinking relates to the insight, first articulated by legal realists, that law does not exist in an autonomous sphere and gains meaning only with its actual interaction with society. Research questions of this type might ask whether and when law is effective, how people think about the law, or how judges make decisions. For instance, in her recent book, Anthea Roberts asks whether international law is truly “international” by looking at how it is studied in different parts of the world.^[5] This type of scholarship can also seek to explain law from a historical point of view. For example, Eyal Benvenisti and Doreen Lustig inquire into the interests that shaped the origins of modern international humanitarian law (“IHL”) and argue that the law was shaped more by the interests of ruling elites than by humanitarian impulses.^[6] For the purposes of this guide, these are socio-legal research questions.

Normative research questions, in general, ask what the law ought to be, whether in general or in a specific instance. For example, in “The Dispensable Lives of Soldiers,” Gabriella Blum asks what ought to be the rules for the targeting of combatants in armed conflict.^[7] As she suggests, these rules should consider the specific threat they pose and not only their legal status as combatants. The difficulty in normative questions—and from my own experience, this is one of the major challenges for students in their first research papers—is that to answer them, we need external parameters for assessing law. In other words, we need a theory on what is considered “good,” in light of which we can present an argument about what the law should be. Otherwise, we run into a classic problem: we cannot draw from facts alone (what law “is”) what ought to be (what law should be).^[8] It is here where theory plays a key role. Normative legal theories are there to help us articulate our benchmarks for assessing what law should be. Returning to Blum’s article as an example, she uses insights from ethics to consolidate her point. She argues from an ethical, extra-legal vantage point, that since soldiers’ lives have moral worth, law should be understood in a manner that best reflects this moral idea.

Now, there is a myriad of normative approaches to international law, which I will not address here. A good place to start on theories of international law, including normative ones, is Andrea Bianchi’s excellent and accessible book on international legal theories.^[9] Just to give you a sense of things, older natural law theories would simply identify law with morality and would inquire into morality—either as handed down by God or as exposed by reason—in order to ascertain law.^[10] In newer scholarship, it is much more common to use ethics as a way to criticize positive law or to read moral standards into the interpretation of law itself—in accordance with the moral theory to which we subscribe.^[11] This, for instance, is Ronald Dworkin’s approach, when he urges to interpret law “in its best light.”^[12] In international law, for instance, a notable example for such thinking is Thomas Franck’s theory of legitimacy and international law.^[13] Franck—although careful not to frame his theory in explicitly moral terms—argues that legal rules should have certain characteristics, such as clarity and coherence, in order to enjoy a “compliance pull” that induces state compliance. If, for example, we were to adopt Franck’s theory, we would assess law in light of his standards of legitimacy.

Normative theories can also be utilitarian. The best known example for such way of thinking, of course, is law and economics.^[14] Another family of instrumental normative theories can be roughly described as policy approaches to international law. In the simplest sense, policy approaches ask what the law should be, in terms of its ability to bring about good policy consequences. The New Haven School of International Law, for instance, analyzed international law from the point of a global standard of human dignity.^[15] It is safe to say that almost all current scholarship on international law, especially in the United States, utilizes policy approaches, even if not explicitly.^[16] To sum this point, when framing normative research questions, we should be aware that at some point, we will need to commit to a yardstick through which to assess our normative conclusions.

Critical research questions inquire into the power relations that shape law or into the relations between law and politics in the broad sense of the term. In this sense, they aim to be descriptive: they seek to describe law as a product of power relations and expose the manner in which law conceals and neutralizes political choices.^[17] Like normative scholarship, critical research questions also rely on theories (“critical theories”). For example, Martti Koskenniemi seeks to describe how the structure of the international legal argument collapses into politics, using insights from Critical Legal Studies (“CLS”).^[18] Aeyal Gross inquires whether the application of international human rights law might harm rather than benefit Protected Persons in occupied territories, on the basis of theoretical tools from CLS and Legal Realism.^[19] Anthony Anghie asks how colonialism shaped the origins of international law, on the basis of postcolonial theory (and specifically in international law, Third World Approaches to International Law).^[20] Ntina Tzouvala considers whether and how the 19th century standards of civilization in international law continue to live on in the international system through its capitalist underpinnings, by applying Marxian analysis.^[21] From a feminist approach, Fionnuala Ní Aoláin explores what are the gendered aspects of the law of occupation.^[22] It should be emphasized that critical research questions are also normative in the deeper sense: by seeking to expose power relations, they imply that something is wrong with law. Some critical research proceeds, after exposing power dynamics, to offer solutions—and some simply conclude that the project of law is a lost cause.

It is crucial to understand that both normative and critical research questions usually have descriptive sub-questions. For instance, Blum’s normative claim is that the current rule on targeting combatants is no longer tenable and should be changed. But to do so, she first has to give a proper account of the current understanding of law. And that is, of course, a descriptive question. The same applies to critical questions. Good critical scholarship should give a valid account of its object of critique. For example, in Tzouvala’s piece, a significant part offers a description of the standards of civilization, before the main critique is applied.

B. A Note about Theory and Methods

The term theory has been used quite liberally in the previous section. Now, there are several ways to understand this term. Here, theory is used in the sense of the general intellectual framework through which we think about law or a certain legal question. It is our view on the world, if you will—the prism through which we analyze or assess a question. The term theory must be distinguished from method. Methods, in legal research, encompass at least two meanings. The first, more common in descriptive socio-legal research, refers to the way in which we seek to find and arrange the information required to answer our question. For instance, if my question is “do judges in international courts cite scholarship from the Global South,” my method would be the manner in which I gather and arrange the data about judges’ citation practices. Do I search all relevant decisions for citations and create a large dataset (empirical quantitative methods)? Do I conduct interviews with prominent judges and extrapolate from their positions (qualitative methods)? Descriptive doctrinal research, too, has its version of methods in this sense. When we analyze treaties, legislation, state practice, or case law, we apply a method of collecting, analyzing, and categorizing this information.

The second manner in which the term method is used, is more pertinent in normative and critical legal research. For example, in an American Journal of International Law symposium on methods in international legal research, “methods” were defined as “the application of a conceptual apparatus or framework—a theory of international law—to the concrete problems faced by the international community”.^[23] Meaning, methods are defined here as the way in which we apply theory to specific instances—or in other words, as applied theory. It is in this sense that you will hear terms like “feminist methods” or “critical methods” used.

In truth, much of legal research—with the exception of certain strands of law and society research—is quite loose in its awareness to methods and in its use of them. This is perhaps because most of us are socialized, in our earliest days as law students, into the general method of doctrinal approaches to law—legal interpretation, case analysis, analogy, and allusions to consideration of “legal policy” in order to solve dilemmas. The extent to which you will be required to be strict about methods in legal research, would probably differ between instructors and their own backgrounds.

C. Framing and Finding Your Research Question

What is expected from a research question, at least in the initial stage of your work? Of course, this differs between instructors and advisors. Here, I offer some insights that I think are generally applicable, with specific reference to international law.

First, a lot depends on the stage of your studies. In most seminars at the J.D. or LL.B. level, instructors do not necessarily require that your question be entirely novel, in the sense that no one has asked it before. Of course, most instructors value originality and would be happy if you come up with a reasonably original question (provided that you can answer it, but more about that in a bit). On the Master’s or Ph.D. levels, this might be very different. Framing a question that would be “an original contribution to the field” is one of the crucial parts of writing a dissertation at that level. But since this is a beginners’ guide, do not worry about that.

Second, a research question must be tailored to the scope of your work, or in other words, it must be a question that you can reasonably answer within the space you have been given. Most seminar papers are around 10,000 words, inclusive of footnotes. This length suits a question like “should the duty to take precautionary measures under IHL require risking soldiers’ lives?” but probably not “the legal history of proxy wars during the Cold War.” The unfortunate nature of seminars is that you will usually have very limited time to think of a research question, and since you are new in the field, you would probably have trouble figuring out whether your question fits the scope of your paper. Most instructors (I hope) would be happy to let you know if your question is too wide.

Third, a research question should be one that you are capable of answering with the skills you have, or with skills—the methodological proficiency –that you have the time to reasonably acquire during your research (whether independently or with the assistance of your instructor). By the time students write seminar papers, most have a reasonable grasp of how to do legal reasoning from an internal-legal point of view and accordingly have the basic skills to answer descriptive doctrinal questions. Concerning most normative and critical research questions, the basic skills required—at least at the level required in seminar papers in most law schools—can be acquired during your research: to me, learning new theories and the ways to apply them is precisely what seminars should be about! The trick is to find the question and the normative or critical approach that you would like to explore. However, things get much trickier if you select a descriptive socio-legal question. These require, sometimes, research methods that most law students do not possess at this stage. If you are thinking about such questions, consult with your instructor to see whether she can or is willing to instruct you about the method you need.

But wait! We said nothing about how to actually find your research question. Here, I might disappoint you: there is no way around some of the difficulties we encounter when looking for a question. Finding a research question is hard, in particular when you are just starting out and have a limited grasp on the field. In truth, there is no one way—if there is even a way—to find a research question. A research question begins from an idea, and we cannot really control how our ideas emerge. Even the most experienced researchers will probably tell you that they get their ideas serendipitously when taking a shower, walking the dog, or folding the laundry. “Eureka” moments rarely pop-up when we summon them. So rather than attempting to give (a futile) account on a sure-shot way to find your research questions, I suggest ways that might be conducive to spark the creative thought process needed to get a good idea.

First, ask yourself what interests you, in the most intuitive way, in terms of specific fields of international law. If you are enrolled in a thematic course, such as International Trade Law, or International Criminal Law, then this narrows your selection of course. But even within fields, there are numerous sub and sub-sub fields and questions. In international criminal law, for example, there is a world of difference between questions of jurisdiction and theories of punishment. Start by opening a general textbook in the field. Scan the contents. See the types of issues and dilemmas that arise. See what direction triggers your interest. Most textbooks will highlight controversial issues. Ask yourself whether any of these issues both interest you and can be phrased as a research question that conforms to the requirements discussed above.

Second, follow blogs in the field. There are many high quality blogs on international law, which offer good analysis on current events and legal dilemmas. These blogs can help you to map burning and interesting questions. Leading blogs such as EJIL: Talk!, Just Security, Legal Form, Opinio Juris, and Lawfare are good places to start. For those of you really willing to take the plunge, there is a very vibrant community of international law scholars on Twitter (although it might lead you to question the general sanity of the field). International legal institutions and organizations also maintain active Twitter profiles, and so do states.

Third, it is ok to begin with a somewhat general or imprecise research question, and narrow it down and refine as you go. For instance, let’s assume that you begin with “should the duty to take precautionary measures under IHL require risking soldiers’ lives.” As you read, you will find that there are several different precautions under IHL. Depending on the scope of your research, you might want to refine your question to something like “should the duty to give advance warning to civilians require exposing soldiers to potential harm?” In other words, it is perfectly fine to make adjustments to your question as you go.

Fourth, be proactive in your communications with your instructor. There are different types of instruction on the seminar level, but most instructors would be happy to participate with you in a ping-pong of ideas on your research question—as long as you have done some thinking and come with ideas to discuss, even if these are half-baked.

II. Secondary and Primary Sources in International Legal Research

A. General

Once we have the research question, we need information to answer it. This information is found in research sources. In academic research, it is common to differentiate between primary and secondary sources. In simple terms, primary sources comprise raw information or first-hand accounts of something. By way of example, these include diary entries, interviews, questionnaires, archival data, and meeting records. In basic legal research, primary sources can include black letter law, rulings, and so forth. Another way to look at primary sources is that they give you direct, unmediated access to the objective of your research. Secondary sources, conversely, are writings about primary sources: they interpret primary sources for you. These include primarily academic books, book chapters, and journal articles. Of course, there are dialectics between primary and secondary sources. Sometimes, secondary sources can become primary sources, depending on our perspective. If, for example, I want to write about the international legal philosophy of Hans Kelsen, then Kelsen’s writings become my primary sources. Other people’s writings about Kelsenwould be my secondary sources. Similarly, a judicial decision can be a primary source when we study what the law “is,” but it can also be secondary source when it describes other things, such as facts, opinions, or ideas.

In international law, there is another idiosyncrasy. If we want to know what the law “is,” secondary sources might be considered primary, to an extent, because according to international law itself, “the teachings of the most highly qualified publicists” are subsidiary means to determine the positive law.^[24]

B. The Intricacies of Secondary Sources of International Law: Managing Hegemony and Information Overload

Is there something special that we need to know about secondary sources in international legal research? On its face, secondary sources on international law are not much different from such sources in any other field. For this reason, I will not get into questions that are relevant to all fields of research, such as how to account for newspaper stories, the value of Wikipedia for research (very limited), etc. Rather, I will point out some things that are especially important to consider when approaching secondary sources in international law.

First, since international law presumes to apply everywhere, there might be relevant literature on your question in any language you can imagine. At the seminar paper level, most instructors will expect you to rely on literature in languages reasonably accessible to you. In more advanced levels of research, things might be different. As a rule of thumb, if you cannot access writings in at least English or French, your research will unfortunately be limited. Of course, we can criticize this situation in terms of the hegemony it reflects;[25] however, this is the reality as it stands. A possible exception is if your question focuses on the application of law in a specific jurisdiction. But here, too, you will be limited since without access to literature in other languages, your comparative ability will be diminished.

Second—and this is an understatement—there are differing perceptions of international law, both in general and on specific questions, across different legal cultures. Risking pandering to stereotypes, U.S. scholarship tends to be more inclined towards policy approaches to law, while continental European scholarship might be more positivist.^[26] Scholarship from the Global South might view law from postcolonial perspectives. It is crucial to be aware of these differences, in the sense that no single perspective can give you the entire picture. This is not to say that you cannot focus on one specific legal culture—depending on your research question—just be aware that you might be getting a particular point of view.

Third, even within a specific legal culture, there are interpretive “camps” on most questions of international law. Very roughly speaking, writers affiliated with state institutions might interpret law in a manner more permissive of state action, while others might be more suspicious of states and approach law from a more restrictive perspective. For instance, in the field of IHL, David Luban identifies “two cultures” of interpretation—military and “humanitarian” lawyers—that differ almost on every legal question.^[27] You will find comparable divisions on international trade, investment arbitration, and international environmental law—and in any other field for that matter. Here, too, it is very important to be aware of the “camp” of the author you are reading. You will not get a complete view if all of your secondary sources belong to this or that camp.

Fourth, be aware and critical of hierarchies. Traditionally, secondary sources of international law were organized around major treatises (which are textbooks that deal systematically with an issue), such as Oppenheim’s international law.^[28] This tendency derives from the special status that major scholarship enjoys in the formation of international law, as mentioned above. Of course, major “classic” textbooks are still invaluable tools to get into the field and at least to understand its mainstream at a given moment. However, many canonical treatises—to be blunt—have been written by white western men from major empires, with certain perspectives about the world. Often, these writers went in and out of diplomatic service and might be generally uncritical of their states’ legal policies. Many newer versions of these textbooks internalize these critiques and are much better in terms of incorporating diverse authors and views. Nonetheless, in order to get the fuller picture on your question, diversify your sources.

Fifth, and notwithstanding the need to take into account the problem of hierarchies, it is still important to get a good grasp of the “important” writings on your research question, in order to understand the predominant views on the issue. In an age of information overload, this is particularly difficult to do. There are, however, several (imperfect) ways to mitigate this problem. One way to do so is by using Google Scholar and Google Books as entry portals into your subject. These search engines allow you both to search for titles and specific phrases within titles. They are free, simple and fast, and Google Books even allows you to preview most books. Google Scholar and Books also present a citation count for each source. Citation counts refer to the number of times a work has been cited by other authors, which gives you a rough measure of the centrality of the work. However, Google’s search engines should be taken with a grain of salt. Google is a data-for-profit company, and its effects on academic research have been criticized.^[29] The basic problem is that nobody knows how Google arranges its results and what interests it serves by doing so. In other words, Google creates a new hierarchy of sources, and we do not know exactly how to account for it.

Another way to get a sense of the important writings relating to your question is to look at general, introductory works on your subject. These textbooks usually provide a good overview of the major discussions and dilemmas relating to the fields they cover, and when doing so, they present the central views on these questions. See which writings they discuss and cite. A good place to start, in order to gain access to initial secondary (and sometimes primary) sources on a specific question, is the Max Planck Encyclopedias of International Law or the Oxford Bibliographies of International Law.

Still, always be mindful that the “central views” on a question are not necessarily the best views. For instance, many times, citation practices simply reproduce geographic, institutional, racial, or gendered hierarchy. They are not meaningless, but be critical about them. After you get the “central views” on the question go to more “neutral” search engines such as your library’s general database or commercial databases such as Hein and Westlaw that arrange scholarship in a more transparent manner. One radical suggestion is to visit your library physically (!) and go to the relevant shelf. Libraries are nice, and you will often find titles that you missed in your electronic search.

C. Primary Research Sources of International Law: What are They and Where to Find Them

What are the primary sources for research in international law? The answer, of course, flows from the type of your research question. The sources for doctrinal research questions would generally follow material that would be relevant for the study of the legal sources of international law, namely those found in Article 38(1) of the Statute of the International Court of Justice (“ICJ”): 1) treaties, 2) state practice and opinio juris (as elements of customary law), 3) general principles of law, and 4) as subsidiary means, judicial decisions and scholarly work.

However, even when conducting doctrinal research, not everyone subscribes to an exclusively formalist understanding of legal sources. For instance, there are many forms of formal and informal regulation in various global governance frameworks. Non-binding resolutions of international organizations, for example, and instruments of “soft law” can also be viewed as part of the doctrine, broadly speaking.^[30] Additionally, legal realists might argue that whatever is perceived by international actors as authoritative and controlling in specific instances can be analyzed as a legally relevant source.^[31] The important takeaway is that the primary sources for doctrinal research follow the author’s approach to the sources relevant for international law, and this changes between legal formalists and realists. This complicates your work, but even as a beginner, you would need to decide which way to go in terms of identifying relevant primary sources. If you are confused about this, consulting with your instructor is probably wise here.

As discussed earlier on, normative and critical research questions tend to have descriptive doctrinal sub-questions. For the doctrinal parts in normative and critical research, the above primary sources are relevant also. The normative and critical parts of such research, conversely, would usually rely on the application to the descriptive findings of theory found in secondary sources (and recall the definition of method as applied theory, suggested in the AJIL symposium).^[32]

For socio-legal research questions, primary sources can extend much wider, depending on the specific research method selected. Since the challenges of identifying sources for socio-legal research are not unique in the context of international legal research and require treatment beyond this limited guide, I do not address them here.

After clearing that up (hopefully), we now move to a more technical part: where can we find primary sources for doctrinal research in international law (or doctrinal parts within otherwise non-doctrinal research)? Of course, there are virtually endless options. Here, I seek only to give an overview of some of the best ways to look for such sources, or at least, those that I prefer. Note, that I do not get into the nitty-gritty of each search engine or database, such as how to run searches and where to click. They are usually quite easy to get a handle on, and if not, most law school libraries have very capable personnel to assist in the more technical aspects of things. In the same vein, I do not get into the specifics of document indexing systems of various institutions (see, for instance, here).

1. Curated Collections of Important Primary Sources

Before delving into specific primary sources and where we can find them, it is good to know that some publications select especially important sources and publish them with commentary. These publications do not include all primary sources, but if you want to search for especially pertinent sources on your subject, they can be helpful. For example, International Legal Materials (“ILM”) is a publication of the American Society of International Law that periodically selects important primary sources, with expert commentary. Although ILM is a very old publication, it is fortunately online, and you can search its database.

2. Treaties and Treaty Bodies

Moving on to treaties. In general, you can access the text of almost every treaty directly from any internet search engine. For comprehensive research, however, the United Nations Treaty Collection (“UN Treaty Collection”) has a sophisticated search page, allowing you to find treaties by title, signatories, dates, and many other categories. When you click on a treaty, you can also find the list of state parties, including reservations, declarations, etc. Take note of that the UN Treaty Collection includes only treaties registered with the United Nations. The most important treaties are indeed registered. Those that are not might be found in secondary sources, in governmental websites, and so forth. Last, Oxford Historical Treaties is a great source for older treaties.

Treaties can also be found in the homepages of relevant international organizations. For instance, the World Trade Organization website includes all of the organization’s founding agreements and other relevant treaties. Regional organizations, also, mostly follow this practice. The International Committee of the Red Cross (“ICRC”) website has an index of all historical and in-force IHL treaties. These are only examples.

For the purpose of your research, you might want to look at the travaux préparatoires—which include the official negotiation records of the treaty, its drafting history, and other preparatory documents. These are important both to interpret and understand the history and rationales of the treaty. There is no single way in which these records are published. Many times, they can be found in official volumes, whether online or in hardcopy. For example, the travaux of the European Conventions of Human Rights can be found online here. You can find more information about finding travaux at the UN Library on this page.

Many treaties establish organs that oversee their execution or interpret their provisions (“treaty bodies”). These organs, in turn, create their own documents, decisions, and comments. This is a particularly important feature of international human rights law treaties. Luckily, the UN keeps a searchable treaty body database in which you can search for virtually any type of document produced by these bodies. For example, you can find various reports submitted to these bodies by states; you can also find decisions (“jurisprudence”) of treaty bodies, as some of them are empowered to decide on individual and interstate claims. For more information about research in human rights law, Georgetown Law produced this great guide (on both secondary and primary sources).

3. Judicial Decisions

Judicial decisions constitute important primary sources in international legal research like in any legal research. However, as opposed to domestic jurisdictions, the terrain of international legal tribunals is heavily fragmented.^[33] As you probably know by now, there is no “supreme court of the international community” to which all other courts are subject. Most tribunals are limited in their jurisdiction to a certain subject matter or to a certain group of states or individuals. To make things even more complicated, domestic courts also frequently rule on international legal questions or refer to international law in their decisions. A crucial point when conducting your research is to figure out whether there is an international tribunal that might have jurisdiction over issues relating to your question and whether these issues were addressed in a substantial way by domestic courts.

Fortunately, there are search engines that allow us to search for specific things across many international tribunals and dispute settlement mechanisms. The Oxford Reports on International Law, for instance, allows you to search across virtually all international tribunals and arbitration mechanisms (as well as treaty bodies). It includes not only ICJ rulings, but also rulings and decisions of subject-area specific dispute settlement mechanisms such as the International Tribunal on the Law of the Sea (“ITLOS”) and others. Furthermore, the search engine allows you also to look for domestic rulings that apply international law in many jurisdictions. Be mindful, however, that the database on domestic rulings is not comprehensive, and many times does not include the newest rulings since it takes time for the regional reporters to report them. The Cambridge Law Reports is another very reputable and established source for international case law and domestic rulings relating to international law.

It should be noted that in addition to these databases, most tribunals have their own websites. Just by way of example, the ICJ, the European Court of Human Rights, the International Criminal Court (“ICC”), and the WTO Dispute Settlement mechanism all have very helpful sites with their own advanced search engines. Similarly, the International Center for Settlement of Investment Disputes (“ICSID”) allows you to search for decisions in investment-state arbitrations. Many other tribunals and dispute settlement arrangements have similar systems. The added value of the tribunals’ own sites is that they usually include not only decisions, but also oral and written proceedings and other documents of interest for in-depth research. Moreover, it might be that they are updated faster with new decisions.

Note, however, that many questions are never resolved by any tribunal. International law is more of an ongoing process than a system of adjudication,^[34] and the fact that a dispute or dilemma has not been formally addressed by courts does not mean that it is not important or that there are no highly relevant primary sources on the issue. Ironically, often the opposite is true: some important questions do not come up for adjudication precisely because actors do not want to risk losing in adjudication.

4. United Nations Documents

Documents produced by the different organs of the UN—as well as by states when interacting in and with the UN—are of special importance for international legal research. Resolutions by the UN Security Council (“UNSC”) can be binding; resolutions by the UN General Assembly might reflect the international consensus, can be declarative of customary international law, or crystallize into binding law as time passes. Reports by the UN Secretary General and by Special Rapporteurs are also important in this sense, not to mention the work of the UN International Law Commission (“ILC”). Letters by states and their statements in various UN fora are also crucial as sources for state practice and opinio juris. Fortunately, The UN’s Official Document System allows you to run searches into the majority of publicly available UN documents. Additionally, the UN Library provides another, more guided, entry point to the universe of UN documents.

Sometimes, if you know the specific type of document you need, it can be helpful to head to the website of the relevant UN organ. For example, the UNSC’s site has all of the UNSC’s resolutions, presidential statements, reports and meeting records by year (as well as documents relating to sub-organs such as Sanctions Committees). You can find, for instance, a specific meeting and its full verbatim records (what states said). The same holds for the UN General Assembly, Human Rights Council and other organs of interest. These websites are generally self-explanatory, although they might be clunky sometimes, and the UN tends to move pages around for mysterious reasons. Explore a bit, and you will usually find what you need.

Last, sometimes you would want to get a general picture about how a specific incident, event, or issue was dealt with across the UN in a specific time. The best place to get this information is the Yearbook of the United Nations. Just look in the specific yearbook for the year in which your event of interest took place, and you will find summaries of the discussion of the issue across the UN. A huge bonus is that the yearbooks include an index of documents for each issue or event that you can then retrieve—using the document’s symbol—from the UN’s Official Document System. Note, however, that unfortunately the Yearbook is only published several years after the relevant year. As of 2020, the 2015 Yearbook hasn’t been released yet.

5. Practice and Statements

State practice and statements are important in order to ascertain customary international law, but also to understand general international approaches towards your question. At least for the latter purpose, the same holds with regard to practice and statements by international organizations and NGOs. Now, since state practice and statements can manifest in endless forms—from Twitter rants to official statements by heads of states (which are, nowadays, sometimes one and the same)—there is no one-stop shop for this type of primary source. Much can be found in UN documents, but this is by no means a comprehensive source because a lot of relevant interactions take place outside of the UN.

Nevertheless, some publications and other databases collect important pieces of (mainly state) practice. Just by way of example, each issue of the American Journal of International Law has a section on contemporary U.S. practice on international law. The U.S. State Department compiles an annual digest on U.S. State Practice, accessible here. German practice in international law can be found here (in English). Some other digests of state practice are listed by the Institute of Advanced Legal Studies library.

Additionally, after you select a research question, it is helpful to run a search and see if there is a subject-matter digest of practice relating to your question. For example, the Journal on the Use of Force and International Law includes, in each issue, a digest of practice on the use of force, divided by regions. The ICRC Customary Law Study website contains an updating database of practice on IHL. But again, these are only examples.

Unfortunately, a lot of relevant material is not compiled or indexed anywhere, and you will have to look for it in other places. Beyond the UN databases, you can find states’ positions in their governmental websites (typically the ministry of foreign affairs). NGO reports can be found in the specific organization’s website. A lot of information can be found in trustworthy media outlets (and we leave the discussion of what is “trustworthy” for another day). The New York Times’ searchable archive is a formidable tool for finding different positions of various actors in relation to current and historical events. For delving deeper, access into institutional archives might be needed.

Furthermore, sometimes, to gain access to relevant practice, you will need to search domestic legislation and rulings, beyond those found in the general databases mentioned above (such as the Oxford databases). Domestic legislation and rulings are especially pertinent when looking for “general principles of law,” which form a part of the sources of international law.^[35] There is no single way to look for sources in domestic jurisdictions: each jurisdiction has its own system and databases. For instance, for English-speaking jurisdictions, Westlaw and Lexis are leading databases.

Last, nowadays, it is important not to neglect social media. For better or for worse, states and other international actors often share positions (and, ahem, insults) on Twitter.^[36] These might also be relevant for your research.

III. Conclusion

All in all, there is no single way to think about any of the issues discussed in this guide. Some researchers will contest many of the definitions and suggestions offered here. This just serves to emphasize that determining the “best” way to approach research has a strong individual component. At least in legal research, beyond strict methodological requirements that might apply in socio-legal research, each researcher develops her own way and understandings as she gains knowledge and experience. I hope that this guide helps you to begin to find your own.

* Associate Professor, Tel Aviv University Buchmann Faculty of Law.

[1] See, e.g., Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden J. Int’l L. 553 (2002).

[2] Compare Monica Hakimi, Making Sense of Customary International Law, 118 Mich. L. Rev. 1487 (2020) with Kevin Jon Heller, Customary International Law Symposium: The Stubborn Tenacity of Secondary Rules, Opinio Juris (Jul. 7, 2020).

[3] Tom Ruys & Luca Ferro, Weathering the Storm: Legality and Legal Implications of the Saudi-Led Military Intervention in Yemen, 65 Int’l & Comp. L.Q. 61 (2016).

[4] Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935).

[5] Anthea Roberts, Is International Law International? (2017).

[6] Eyal Benvenisti & Doreen Lustig, Monopolizing War: Codifying the Laws of War to Reassert Governmental Authority, 1856–1874, 31 Eur. J. Int’l L. 127 (2020).

[7] Gabriella Blum, The Dispensable Lives of Soldiers, 2 J. Leg. Analysis 115 (2010).

[8] For an explanation, see Scott J. Shapiro, Legality 47–49 (2011).

[9] Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (2016).

[10] See Emmerich de Vattel, The Law of Nations, bk. I, ch. IV, §§38–39 (Béla Kapossy & Richard Whatmore eds., 2008) (1758).

[11] See, e.g., Adil Ahmad Haque, Law and Morality at War (2017).

[12] Ronald Dworkin, Law’s Empire (1986).

[13] Thomas M. Franck, Legitimacy in the International System, 82 Am. J. Int’l L. 705 (1988)

[14] Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis of International Law, 24 Yale J. Int’l L. 1 (1999).

[15] W. Michael Reisman, The View from the New Haven School of International Law, 86 Am. Soc’y Int’l L. Proc. 118 (1992).

[16] See Harlan Grant Cohen, Are We (Americans) All International Legal Realists Now?, in Concepts on International Law in Europe and the United States (Chiara Giorgetti & Guglielmo Verdirame, eds., forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3025616.

[17] Martti Koskenniemi, What Is Critical Research in International Law? Celebrating Structuralism, 29 Leiden J. Int’l L. 727 (2016).

[18] Martti Koskenniemi, The Politics of International Law, 1 Eur. J. Int’l L. 4 (1999).

[19] Aeyal M. Gross, Human Proportions: Are Human Rights the Emperor’s New Clothes of the International Law of Occupation?, 18 Eur. J. Int’l L. 1 (2007).

[20] Antony Anghie, Francisco de Vitoria and the Colonial Origins of International Law, 5 Soc. & Leg. Stud. 321 (1996); see also Sundhya Pahuja, The Postcoloniality of International Law, 46 Harv. J. Int’l L. 459 (2005).

[21] Ntina Tzouvala, Civilization, in Concepts for International Law: Contributions to Disciplinary Thought 83 (Jean d’Aspremont & Sahib Singh eds., 2019).

[22] Fionnuala Ní Aoláin, The Gender of Occupation, 45 Yale J. Int’l L. 335 (2020).

[23] Steven R. Ratner & Anne-Marie Slaughter, Appraising the Methods of International Law: A Prospectus for Readers, 93 Am. J. Int’l L. 291, 292 (1999).

[24] Statute of the International Court of Justice, Art. 38(1)(d), June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 933.

[25] See Justina Uriburu, Between Elitist Conversations and Local Clusters: How Should we Address English-centrism in International Law?, Opinio Juris (Nov. 2, 2020), https://opiniojuris.org/2020/11/02/between-elitist-conversations-and-local-clusters-how-should-we-address-english-centrism-in-international-law/.

[26] See Cohen, supra note 15. See also William C. Banks & Evan J. Criddle, Customary Constraints on the Use of Force: Article 51 with an American Accent, 29 Leiden J. Int’l L. 67 (2016).

[27] David Luban, Military Necessity and the Cultures of Military Law, 26 Leiden J. Int’l L. 315 (2013); see also Eyal Benvenisti, The Legal Battle to Define the Law on Transnational Asymmetric Warfare, 20 Duke J. Comp. & Int’l L. 339, 348 (2010).

[28] 1 Lassa Oppenheim, International Law: A Treatise (1912).

[29] Jake Goldenfein, Sebastian Benthall, Daniel Griffin & Eran Toch, Private Companies and Scholarly Infrastructure — Google Scholar and Academic Autonomy (Oct. 28, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476911.

[30] See, e.g., Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 Int’l Org. 421 (2000).

[31] For this type of thinking, see Hakimi, supra note 2.

[32] See Ratner, supra note 23.

[33] See Koskenniemi, supra note 1.

[34] Harold Hongju Koh, Is there a “New” New Haven School of International Law?, 32 Yale J. Int’l L. 559 (2007).

[35] See, e.g., M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law”, 11 Mich J. Int’l L. 768 (1990).

[36] Francis Grimal, Twitter and the jus ad bellum: threats of force and other implications, 6 J. Use of Force & Int’l L. 183 (2019).

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Forum, Online Scholarship

Fireside Chat with Ms. Kate Gilmore and Prof. Kathryn Sikkink: Human Rights Governance in the Era of COVID-19 and Beyond

January 9, 2021

Editorial note: This exchange is part of the ILJ Forum series “International Cooperation and Global Governance in the Era of COVID-19 and Beyond.”

Ms. Kate Gilmore is a Fellow with Harvard Kennedy School Carr Center for Human Rights Policy. Her leadership and advocacy for the advance and application of human rights standards and norms extends over more than three decades. Ms. Gilmore has served the United Nations at a senior level, first as Deputy Executive Director for Programmes with the United Nations Population Fund (UNFPA) and, from 2015 to 2019, as the UN Deputy High Commissioner for Human Rights. Previously she was National Director of Amnesty International Australia and then Executive Deputy Secretary General of Amnesty International.

Professor Kathryn Sikkink is the Ryan Family Professor of Human Rights Policy at the Harvard Kennedy School. Professor Sikkink works on international norms and institutions, transnational advocacy networks, the impact of human rights law and policies, and transitional justice. Her most recent publications include The Hidden Face of Rights: Toward a Politics of Responsibilities; Evidence for Hope: Making Human Rights Work in the 21st Century; and The Justice Cascade: How Human Rights Prosecutions are Changing World Politics.

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In your eyes, are there any important human rights mandates or projects that have been ignored or lost priority due to the COVID-19 pandemic? If so, can you provide one example and share your concerns? In your view, what are the necessary steps to put these projects back on the agenda?

Kate Gilmore:

The COVID-19 pandemic infects a world already afflicted by many contagions. Historic levels of failed progression and intentional regression plague the application of global norms and standards in general, and of human rights norms and standards specifically.

The COVID-19 pandemic also comes in the midst of rising catastrophes. Environmentally? We are in an ever-deepening and yet largely unchecked climate crisis. Economically? In the aftermath of this century’s first financial crisis, inequality has been allowed to broaden and deepen to critical levels for millions. Demographically? Wealthier populations are aging at unprecedented levels, bringing with them not the wisdom of experience it seems, but even louder expressions of fear, anxiety, and, from many, of old-fashioned bigotry. The world’s poorest, meanwhile, have never been younger: it is the largest generation of young adults in human history that today populates global poverty.

Technologically? Breathtaking, accelerated meta-change is driven by micro algorithmic innovations whose bytes and pixels call into question even the very idea of the “human.” Socially? The echoes heard around the world of the Black Lives Matter and #metoo movements; the outpouring of public protest against government treachery from Belarus to Iraq to Chile to Hong Kong. It is the brave human rights activists who, often at risk to their own safety, beg us to recognize that for millions, their lives have reached critical levels of discontentment.

So, whatever neglect, lost priority or under-performance may be said to characterize important UN human rights mandates or projects over the course of 2020, that was well in the making long before the pandemic took hold. Don’t give the coronavirus all the credit.

The Venn diagram of rejectionism of a science-based, public health policy response to the pandemic and rejectionism of human rights-based responses to global crises makes for an almost perfect overlay. President Trump walked the United States away from the World Health Organization (“WHO”) in the midst of a pandemic; but he earlier abandoned the Paris Climate Agreement in the midst of climate crisis and deliberately imperiled sexual and reproductive health and rights globally, just as the world’s largest generation ever of adolescents most needed that. And, of course, he ended U.S. membership of the UN Human Rights Council in the midst a rising nativist populism that is driving the toughest contest over global values that our generation has seen.

From a northern lookout at least, Trump often appears as the highest profiled, but the current U.S. President is far from alone among world “leaders.” He has no monopoly on efforts to trump scholarship, evidence, human rights norms, and international law the better to accrue unaccountable political power. Just take a look at Xi Jinping’s policies on Hong Kong; his cruelty to his country’s Uyghur and Tibetan communities. Consider Putin’s intervention in Ukraine; his enabling of the Syria conflict and his cruel targeting of political opposition figures. See how the faltering wheels of Johnson’s Brexit have been so casually oiled by cruel slicks of xenophobia and nativism. And France? Not much comfort from the government of Macron for the “gilets jaunes.”

Should we move our gaze then, beyond the quality of the human rights “leadership” of the Permanent Five (“P5”) members of the UN Security Council to look elsewhere instead? Perhaps to Bolsonaro’s Brazil? Orbán’s Hungary? Buhari’s Nigeria? Modi’s India? Yes, for sure, Ardern’s New Zealand is truly inspiring, but, come on now, it is no counterbalance.

My point is that there is nothing in the mandate, form, function, or membership of the international human rights mechanisms that is designed to shield them from the contagions of today’s global eco-system. To the contrary, one can argue that what is today most desired of the UN human rights system by a majority of powerful UN member states and many with the UN itself, amounts to poor and inconsequential human rights performance.

After all, it truly is a system run on the cheap. Provided the smallest proportion of the UN’s paltry income, the UN human rights system is absolutely dependent on expert volunteers and overly dependent on the generosity of a shrinking number of largely Northern states. Its influence and courage are impeded internally by senior UN people who should know better, and its external voice is stifled.

Perhaps we should be amazed that any authoritative human rights contribution at all emerges from the UN human rights bodies and mandates, given this milieu. But thankfully, the international human rights system, more often, outright fails to fail outright. And in pandemic times, despite lock downs, it has continued to turn up for human rights defence.

That said, what the 2020 pandemic has revealed, in a harsh light, is just how unwilling and ill-equipped the world’s systems of power, including those housed and hosted by the UN, are to confront and address the ongoing injuries of historical inequalities. COVID-19 poses again interrogations long awaiting conclusive answer. What will we do about the palpably unsustainable environmental and social costs of our greed and selfishness? When will we comprehensively end our tolerance of intimate and public hatefulness and violence? When will we definitively say enough already with the imposts of prejudice and bigotry? How can we end the power-hunger games of leaders willfully playing politics with global norms, universal values, and incontrovertible evidence?

To help us rise to those challenges, human rights will never be enough. Yet, as law, norms, standards, and guiderails to underpin factual, fair, just, and humane public policy and response to any number of contagions, human rights are simply essential. And as universal values for our common humanity? Exactly, what would be the acceptable alternative to the core proposition of the Universal Declaration of Human Rights (“UDHR”), on which the UN Charter also stands, that bears we all are free and equal in dignity and rights?

Kathryn Sikkink:

First let me agree with Kate on the magnitude of the multiple crises facing us, and the observation that many of these were underway well before the pandemic began. I also agree that human rights will not be enough, not in the Sam Moyn way as if human rights were somehow part of the problem, but rather to suggest that this crisis requires activation of a broad range of global governance and foreign policy actions beyond human rights. But our expertise is on rights, so I want to focus on the contours of a human rights and responsibilities approach to the pandemic.

In my recent book published before the pandemic: The Hidden Face of Rights: Toward a Politics of Responsibility, I argued that to more fully implement human rights, we need to place more emphasis on the responsibility of all actors, and not just states, to take action together to make sure rights are enjoyed. This argument has turned out to be particularly relevant to the COVID-19 pandemic. Even if all governments were taking efficient action, but many other actors, including corporations, international organizations, and individuals did not also do their share, the crisis could not be addressed. Pharmaceutical corporations, for example, have responsibilities to make sure the vaccine is produced, priced, and distributed in such a way that it can reach the greatest number of people. But, as we are seeing in the United States, unless individual people believe that they have a responsibility to protect their own health and the health of others by actually agreeing to be vaccinated, the pandemic will continue. And not only that, but the science deniers are using arguments about rights to justify their decisions not to wear masks, not to social distance, and not to vaccinate. In other words, today the language of rights has become so powerful that it is being used to deny any responsibility to protect the rights of others.

Building on the work of Iris Marion Young, in The Hidden Face of Rights, I argue that all actors socially connected to structural injustice and able to act, need to take action to address the injustice. One problem with the word responsibility is that people often use it in the common legal meaning focused on who is to blame or liable. This is what Iris Young has called backward-looking responsibility or the liability model. But instead of talking about legal responsibility, I am focusing instead on ethical and political responsibility that is forward-looking. This kind of responsibility asks not “who is to blame,” but “what should we do?” Forward-looking responsibility is necessary to address the COVID-19 pandemic and to think about what we should do in the world after the pandemic.

This framework is useful in the context of the COVID-19 crisis because it involves both a range of rights and responsibilities of many actors. Our right to health, but also rights to liberty, freedom of movement, to education, to information, to food and shelter are all at stake. States have found themselves trying to exercise their responsibilities to protect the right to health at the same time as they balance it against these other human rights. This balancing of rights is foreseen in the UDHR, which speaks of limiting rights to “respect the rights and freedoms of others.” The UDHR goes further, however, and recognizes that each of us has “duties to the community,” and its preamble calls on all of us to promote rights. The drafters were keen to highlight that realizing the full potential of the UDHR was a collective effort. To protect our collective right to health, we may need to recognize that we have a right to freedom of movement, but also a responsibility not to travel in certain circumstances; a right to education, but a responsibility to accept that it may be suspended temporarily or delivered online.

Some states are doing a far better job at exercising responsibility than others. The U.S. case is especially worrisome, where the national and global dangers of a narcissistic nationalist leader hostile to science and facts could not be more apparent. I was fortunate to spend the first half of this year in Uruguay, where I was able to live under a very different set of policies, where state policy was led with science and built upon decades of efforts to provide health care and education to all. Uruguayans voluntarily complied with government policy and cases and deaths stayed at a low point for the region, compared to very high levels in Uruguay’s close neighbors, Brazil and Argentina.

A forward-looking rights and responsibilities approach suggests we need more well-coordinated national and international responses. More and better global governance is necessary for solving the COVID-19 crisis and the economic recession that has grown out of it. The election of the Biden/Harris administration promises a more responsible and cosmopolitan approach from the United States. The fact that Moderna, the company that has currently developed one of the two most advanced COVID-19 vaccines, has said that it won’t enforce the vaccine patents during the pandemic is another promising sign, as are the WHO COVID-19 technology access pool, and some of the multi-stakeholder initiatives around vaccines, such as Gavi, the Vaccine Alliance. Some diverse actors are stepping forward to take responsibility to implement the right to health.

Kate Gilmore:

The COVID-19 pandemic, being both universal and exceptional in the pace of its impact, is a truly global crisis. But one wonders how might its gravity and urgency have been assessed—were it “merely” rampaging through the Global South and not also through the Global North? Were it not also reaching (albeit with less grave implications) the wealthy and the powerful, but instead only those who, having the fewest resources, can least well withstand its burdens? Those who are without the health insurance to manage the catastrophic costs of sudden illness? Those without the personal financial reserves to manage the catastrophic loss of income? Those without a home to retreat to during lockdown, or whose housing makes the idea of social distancing laughable, or for whom, because of intimate violence, the home is no haven?

It is bad. It is a life-threatening pandemic. Yet the COVID-19 pandemic brings many more into touch, albeit all so lightly, with that which for years, in far, far graver forms, has been the daily experience of the peoples of conflict-ridden Yemen and Syria, of Iraq and Afghanistan: daily fear for the wellbeing of loved ones; daily impediments to freedom of movement; daily deprivations of free exercise of the rights to work, to income, to education, to health. Such is the daily plight too of the Dalit, the Uyghur, and the Rohingya. And, of multiple indigenous peoples, the world over. A gravity too for those adolescent girls who, being pregnant after sexual assault, are not merely abandoned but actively punished by the state—deprived of their right to education, to information, and to choice.

My point is that not only has COVID-19 flourished amidst known (i.e. entirely foreseeable) inequalities and long-unsolved crises, but the massive public push for a vaccine-based “solution” to it, as life-saving as we hope that will prove to be, shows also how narrow the narrative is about the “answer” and why we might be wise to be skeptical of claims that a COVID-19 recovery will see a world “built back better.”

It also reveals nonetheless that extraordinary public-private cooperation can be commandeered, when the powerful wish it to be and invest so that it can be. This also begs the question: why are some problems of global scale and deep human injury deemed worthy of intensive even global cooperation—all-hands-on-deck—solutions while others are not?

In other words, as Kathryn so rightly underscores, the shaping of the world’s COVID-19 response and recovery efforts is a time to be expansive in our human rights expectations, such that both private and public actors are challenged to meet human rights demands more holistically and, as she has argued, such that the many other dimension of human rights claims are engaged for the sake of our future, rather than rely solely on (retrospective) legal accountability as the only or primary way in which human rights are relevant.

With regards to corporate actors, to some extent, the UN human rights system has paved the way already. The UN Working Group on Business and Human Rights, a special procedures mandate, has helped foster the annual UN Forum on Business and Human Rights into the world’s largest gathering on business and human rights, bringing hundreds of companies into oft-times robust conversations with hundreds of human rights experts each year.

Open-ended working groups reporting to the UN Human Rights Council on such as an international regulatory framework for private military and security companies and on transnational corporations and other business enterprises with respect to human rights show there is some appetite among member states for strengthening the application of normative frameworks to business. The UN Global Compact, enjoying its 20^th anniversary, calls on businesses to voluntarily align their strategies and operations with human rights. Today it has sign-up from nearly 12,000 companies the world over. The UN Guiding Principles on Business and Human Rights further elaborate the measures that business enterprises, as specialized organs of society, should take and these have been detailed specifically for companies’ commitment to LGBTI equality .

The UN Treaty Bodies, Special Rapporteurs and independent experts on human rights—through their various thematic and country mandates—have also identified a range of ways, topics and settings in which corporate actors have—and should be judged as having—human rights responsibilities. Their recommendations are forward-looking and future-oriented.

From the evolving duties of digital giants (i.e., Committee on the Rights of the Child; Special Rapporteur on Freedom of Expression) to companies’ responsibilities in respect of toxic waste; from the condemnation of commercial actors wrongly rendering housing merely a financial commodity to the call for strong regulation of military arsenal production given leap frog advances in armed drones; from questions of trade and investment to the general comment by the UN Committee on Economic, Social and Cultural Rights on the role of the state parties in regulating business, the UN human rights system has been working to break ground on the roles and responsibilities of business. Even the big pharma has been addressed. As early as 2008, the Special Rapporteur on the Right to Health set out Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines. And, this year alone at the time of writing (November 2020), those many mandates have issued 117 press releases, 13 tools, and 18 reports on COVID-19 alone.

However, for all that effort, attention, and activity, for all that socializing of human rights among the corporate actors as values, principles, and good practices, still we have not been led far enough, quickly enough. As the CEO and Executive Director of the Global Compact, Sanda Ojiambo, explained to the 9th Annual UN Forum on Business and Human Rights, held just this month— November 2020—“relying solely on voluntary measures simply will not get us where we need to be.”

We need urgently more effective legislation, more relevant jurisprudence, and more authoritative efforts by legal experts if we are to bring human rights into fuller application to corporate actors, including to those involved in the production, testing, and dissemination of vaccines.

Kathryn Sikkink:

If we really were having a chat in person, Kate, I would have so many questions for you about your experience at the Office of the High Commissioner in these momentous times. I read your first intervention as a survey of the human rights problems that have been brought urgently to your attention, that predate the pandemic, but are nevertheless exacerbated by it. The editors asked us to provide one example in particular of human rights mandates or projects that have lost priority, but it seems as if it is almost impossible to choose one among so many issues.

Your second intervention begins to take on another question: do we think that the Covid-19 situation could also be an opportunity to push forward reforms or projects that are critical but did not attract enough attention before? You suggest that the pandemic could bring many more people in the Global North in touch with the daily experiences of people in conflict ridden and repressive societies around the world, which in turn could contribute to positive change. This suggestion is supported by a literature on ideas and norms in world politics that argues that change is often more likely in the wake of crisis and failure. The UN itself and its human rights system were born out of the tragedy of WWII and the Holocaust. But crisis alone is not sufficient of course, and we also need leadership and new ideas, qualities currently in short supply from most states.

You also argue that the pandemic reveals that “extraordinary public-private cooperation can be commandeered, when the powerful wish it to be and invest so that it can be.” But you suggest that only issues of concern to the Global North are deemed worthy of intensive global cooperation. The rapid development of vaccines gives this impression at the moment, but I do not think the history of the pandemic to date reveals that powerful actors cooperate only when their interests are at stake. In my Global Governance course this semester, in fact, we used the COVID-19 as an example of failures in governance. In an early class, we asked why global cooperation and governance had been so much more effective in the case of malaria, a leading killer in low income countries, than it had to that point for COVID-19. Approximately 400,000 people in the world die annually from malaria, compared to the 1.7 million who have now died from COVID-19. A very concerted global campaign against malaria involving extraordinary public-private cooperation helped avert 7.6 million malaria related deaths since 2000. Indeed, some of the rapid vaccine development for COVID-19 builds on earlier ongoing vaccine research for other diseases, including SARS and MERS. The Oxford team that has developed one of the key COVID-19 vaccines was in a position to move ahead quickly because they geared up after the Ebola crisis “to tackle the next big one.”

The final paragraphs of your second intervention list a whole series of recent initiatives that are a testament, in fact, to the ongoing dynamism and resilience of human rights movements and human rights institutions, despite all the problems you so correctly identify in your first intervention—lack of adequate funding, lack of leadership and political will from most states, and direct attacks from other states.

In my 2017 book, Evidence for Hope: Making Human Rights Work in the 21^st Century, I argued that there was an “epidemic” of pessimism about human rights. This was written well before the COVID-19 pandemic. But I refer to this book to remind us that human rights work, since its inception, has always been about struggle. There is no golden age in the past where human rights work was easy and well accepted. The period between the end of the Cold War and the start of the so-called war on terror has been identified as a high point for consensus on human rights norms, and yet during this period mass atrocities were perpetrated in the Balkans and in Rwanda. But even that momentary period of consensus was the exception, not the rule. Yet, over the longer term, these often weak, underfunded and sometimes vilified human rights movements and institutions have contributed to human rights progress, including a decline in genocide, a shrinking number of people killed in war, decreasing use of the death penalty, and improvements in poverty, infant mortality, and life expectancy, as well as advances in gender equality, the rights of sexual minorities, and the rights of people with disabilities. Even as I write this, I know that many readers will not believe it. I encourage you to read the data and analysis I provide in Evidence for Hope.

I do not argue that people should have hope right now in this moment of the pandemic. COVID-19 has been the deadliest infectious disease since the Spanish Flu pandemic of 1918. It is killing people all over the world, with increasingly severe impact on vulnerable people and people in the developing world, especially in Latin America. But why is it that well before the pandemic so many people believed that human rights violations in the world were getting worse rather than better? The short answer is that we think the world is worse off because we care more and know more about human rights than ever before. The media and human rights organizations have drawn our attention to an increasingly wide range of rights violations around the world. Their success in doing so sometimes inadvertently causes people to think that no human rights progress is occurring.

In Evidence for Hope, I use this history and data to tell not a triumphalist history, but what Albert Hirschman would call a “possibilist” one, focusing not on what was probable, but on what, with commitment and struggle, was eventually possible. It is exactly because of the work of people like you, Kate, and the many many other human rights advocates around the world that such change has been possible, and could continue to be possible in a post-pandemic future. Thank you.

Author name: bakcan

Taking Down One of the World’s Largest and More Profitable Criminal Industries: Trafficking in Persons (Part II: Libya and Central America)

By: Frederika Schweighoferova[1]

1. Prosecuting Human Trafficking under the Existing Rome Statute Framework

1.1. Prevailing Chaos in Libya and Vulnerable Migrants in Hands of Criminals

1.2. ICC as a Tool to Address Accountability

1.3. Human Trafficking in Libya as a Crime against Humanity

2. Prosecuting Human Trafficking under the Amended Rome Statute Framework

2.1. Human Trafficking in Central America

2.2. Human Trafficking in Central America as a Crime against Humanity

Conclusion

More articles from the series:

Taking Down One of the World’s Largest and More Profitable Criminal Industries: Trafficking in Persons (Part I)

By: Romina Morello[1] and Frederika Schweighoferova[2][*]

1. “Premiers Responsables”: States

2. Prosecuting Human Trafficking under Existing Provisions of the Rome Statute

a) Enslavement

b) Other Inhumane Acts

c) Practical Implications

3. Amendment to the Rome Statute

4. Conclusion

More articles from the series:

In Defense of the Amazon Forest: The Role of Law and Courts

Introduction

I. Existing Legal Framework

A. Public Land in Brazil

B. Crimes in the Amazon

1. Illegal Land Appropriation

2. Environmental Crimes

a. Deforestation

b. Burnings

c. Illegal logging and trade

d. Illegal mining

II. Problems with the Existing Framework

A. Rules Concerning Public Lands

B. Rules Concerning Crimes

C. Lack of Political Will

III. Solution

IV. Conclusion

Editors: Celia Reynolds & Trinidad Alonso Quiros

Legal Disruption in Dispute Resolution in the Age of COVID-19

By: Lance Ang

I. Introduction

II. Contractual Defaults

III. Digital Courts

IV. Responses

V. Concluding Thoughts

Executive Editor: Yixian Sun

How to Do Research in International Law? A Basic Guide for Beginners

By: Eliav Lieblich*

Introduction

I. Research Questions

A. Types of Research Questions: Descriptive, Normative, and Critical

B. A Note about Theory and Methods

C. Framing and Finding Your Research Question

II. Secondary and Primary Sources in International Legal Research

A. General

B. The Intricacies of Secondary Sources of International Law: Managing Hegemony and Information Overload

C. Primary Research Sources of International Law: What are They and Where to Find Them

1. Curated Collections of Important Primary Sources

2. Treaties and Treaty Bodies

3. Judicial Decisions

4. United Nations Documents

5. Practice and Statements

III. Conclusion

Fireside Chat with Ms. Kate Gilmore and Prof. Kathryn Sikkink: Human Rights Governance in the Era of COVID-19 and Beyond

In your eyes, are there any important human rights mandates or projects that have been ignored or lost priority due to the COVID-19 pandemic? If so, can you provide one example and share your concerns? In your view, what are the necessary steps to put these projects back on the agenda?

Kate Gilmore:

Kathryn Sikkink:

Kate Gilmore:

Kathryn Sikkink:

**By: Romina Morello[1] and Frederika Schweighoferova[2][*]**