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A Vision for the Future of Private International Law and the Internet – Can Artificial Intelligence Succeed Where Humans Have Failed?

By Dan Jerker B. Svantesson

There are countless news stories and scientific publications illustrating how artificial intelligence (AI) will change the world. As far as law is concerned, discussions largely center around how AI systems such as IBM’s Watson will cause disruption in the legal industry.  However, little attention has been directed at how AI might prove beneficial for the field of private international law.

Private international law has always been a complex discipline, and its application in the online environment has been particularly challenging, with both jurisdictional overreach and jurisdictional gaps. Primarily, this is due to the fact that the near-global reach of a person’s online activities will so easily expose that person to the jurisdiction and laws of a large number of countries. Thus, online users ranging from individuals to the largest online companies are subject to unpredictable legal consequences when using the Internet. It also places stress on courts and regulators as jurisdictional claims frequently exceed relevant enforcement capabilities. Indeed, broad jurisdictional claims may force regulators to be selective in terms of targets to pursue, which will arguably undermine the rule of law principle that all are treated equally before the law. Despite intensive work by some of the world’s brightest legal minds, we are seemingly still far from solutions to these difficult situations.

This Post outlines the ways in which AI might help solve some of these challenges in private international law, as well as some issues that must be considered before getting to that stage. In doing so, the Post focuses explicitly on private international law as applied to Internet activities, though the general discussion is relevant to private international law more broadly.

What is AI?

The Council of Europe defines AI as “a set of sciences, theories and techniques whose purpose is to reproduce by a machine the cognitive abilities of a human being. Current developments aim, for instance, to be able to entrust a machine with complex tasks previously delegated to a human.”

The Council also notes the distinction between what has been termed “strong” AI, with the ability to “contextualize very different specialized problems completely independently,” and “weak” to “moderate” AI, with the ability to “perform extremely well in their field of training.”

“Strong” AI is generally beyond the reach of current technologies. Fortunately, none of the tasks outlined below that AI may perform for private international law require “strong” AI; thus, the required technology already exists. All that remains is to:

  1. construct suitable modeling of private international law;
  2. ensure access to the required data; and
  3. feed the modeling and data into an appropriate AI system.

While the idea sounds relatively simple on paper, clearly much work lies ahead.

Private International Law Modeling – Finding the “Correct” Point of Departure

For “weak” to “moderate” AI, the starting point for utilizing AI to help address the concerns expressed above is to create an appropriate model of private international law applicable to the Internet world. Like pioneering scholars such as Phan Minh Dung and Giovanni Sartor, I propose doing so based on modular argumentation:

“Modular argumentation offers itself as an appropriate platform for representing private international laws and different national laws as it allows knowledge to be split in separate modules. Moreover, it enables the different knowledge modules (which may represent legal systems or part of them) to be used by referring to each one of them specific issues. This is done by calling the relevant module and asking it to answer specific queries.”

The limited modeling that has been done of private international law has focused on assessing whether a given country can: (1) claim jurisdiction (and which domestic court is competent), and (2) apply its laws to a given scenario.  This approach is natural given that this is also very much the focus of private international law as a discipline (in addition to matters of declining jurisdiction, as well as recognition and enforcement). Yet it is not the emphasis of the task discussed here.

The number of laws a person is expected to comply with when engaging in online activities is not static; rather it varies depending on a range of factors and is context-specific. Imagine, for example, that person X in Canada sends an email to a person in China, relating to the activities of a person in Romania. In this example, primarily three countries’ laws (Canada, China, and Romania) are relevant. Imagine further that the same person X also posts information on a US social media site on which she has “friends” in 100 different countries. In the context of this latter activity, person X is exposed to the laws of a vast number of countries due to the great reach of the posting. Thus, for any specific activity, we can speak of a “contextual legal system” consisting of the norms of all relevant states’ laws that the person in question is expected to abide by.

Knowledge of the number of applicable laws can be a useful diagnostics tool to highlight situations of “hyperregulation” in which:

  1. the complexity of a party’s contextual legal system amounts to an insurmountable obstacle to legal compliance; and
  2. the potential for legal enforcement of (at least parts of) the laws that make up the contextual legal system is more than a theoretical possibility.

However, knowledge of the number of applicable laws does little to provide legal predictability unless we also know the countries to which the acting person is exposed. The obvious difficulties include accessing the relevant laws, getting over language barriers, and identifying which states’ laws may claim to be part of the relevant contextual legal system in the first place. Here, predictability requires nothing less than an examination of all the laws of all the states in the world, including their respective private international law rules – perhaps humanly impossible, but just the sort of task at which AI thrives.

As a clarifying point, there is a distinct difference between the domestic legal systems and the contextual legal systems discussed here. While the former typically seek to avoid contradictory norms, each contextual legal system is made up of norms from multiple states’ legal systems – norms that typically are neither coordinated nor harmonized. Thus, unsurprisingly, a contextual legal system to which a person is exposed may contain clashing norms; that is, the norms of one state may demand performance of actions that the norms of another state forbid, or the norms of one state may outline duties that directly contradict rights provided for by the norms of another state.

Where norms within a contextual legal system conflict with others, an advanced AI system could be equipped to prioritize some norms over others based on agreed criteria. A range of traditional private international law tools, such as forum non conveniens, might be applicable in this context. Other methods, such as recent work on value-consistency, will also prove valuable. Taken one step further, legal concepts from other fields of law such as competition law may prove useful in addressing clashes of norms.

In any situation involving clashing norms, it is not just a matter of determining which country’s laws shall be applied to the situation at the expense of all other laws, nor is it a simple matter of assessing whether a certain country’s laws apply to the situation. An advanced AI system could analyze a contextual legal system with norms stemming from several legal systems, all applying at once. After all, we should not restrict ourselves to something as crude as assessing whether a given country’s laws apply to the situation, because not all laws of a country are relevant in any given situation.

Imagine that legal person Y from state A enters into a purchase contract with natural person Z from state B. If state B wants to apply its consumer protection laws to the situation, those laws of state B need to have a substantial connection to the matter and state B must have a legitimate interest in applying those consumer protection laws. However, if state B, based on the same set of facts, wants to apply its corporate governance laws to Y, the connection is weaker and the interest in doing so is less legitimate. To take this example to the extreme, imagine that based on the mentioned scenario, state B wants to apply its marriage laws to all employees of legal person Y; then both the connection and the interest is non-existent.

Thus, any assessment of whether state B’s laws shall apply hinges on what norms that state seeks to apply. It is the applicability of individual norms of a certain state, rather than all its laws in their entirety, that should be in focus. This increased granularity ought to be reflected in private international law rules, and their modeling alike.

At the most basic level, the assessment of claims of jurisdiction, as well as the questions of which norms apply and how clashes between applicable norms are addressed should be guided by the following three criteria that may be seen as the jurisprudential core of the concept of jurisdiction, namely:

  1. Substantial connection – is there a substantial connection between, on the one hand, the matter and, on the other hand, the given state seeking to exercise jurisdiction and the norms it seeks to apply;
  2. Legitimate interests – does the given state seeking to exercise jurisdiction and apply some of its norms have a legitimate interest in the matter; and
  3. Interests balancing – is the exercise of jurisdiction and application of those norms reasonable given the balance between the state’s legitimate interests and other interests?

The modeling must take all of this into account.

The Data Needed and How to Get It

Not least due to the successes of the Free Access to Law Movement and the work, and international outreach, of organizations such as the Australasian Legal Information Institute (AustLII), a significant number of states make their laws available online, although often in their local languages.

For those states that currently do not make their laws freely available online, the laws can and ought to be digitized. This is an important step not just for the AI system envisaged here. It is arguably a necessity for any state wishing to have credibility in claiming that its laws apply to the online conduct of foreigners; after all, laws that cannot be accessed arguably are less legitimate. Further, accessibility is a prerequisite for the international influence of any given legal system.

Language differences, as well as differences in the meaning of legal concepts, will no doubt place heavy demands on any AI system constructed to meet the goals envisaged in this post. However, although in the past language barriers were substantial hurdles for humans seeking to access foreign laws, AI systems provide a promising chance to get over these barriers, now or in the near future.

Furthermore, while in an ideal world the AI system would be fed all the laws (including both primary and secondary sources) of all the countries in the world, a useful system could be devised with a considerably more limited dataset. For certain purposes, it may be sufficient that the AI system is fed a subset of laws of particular importance. These subsets may be identified in numerous ways, including by reference to specific states, specific areas of law (e.g. consumer contracting, defamation, or copyright), or specific sectoral needs (e.g. the laws particularly affecting social media or the laws particularly affecting online news publishers). At least for these more limited systems, work ought to commence immediately.

The Envisaged AI System and Its Uses

Once the modeling discussed above is completed, and the AI system has been fed the required data, the system will be capable of:

  1. Identifying the norms from multiple legal systems that together make up the relevant contextual legal system for a given activity; and
  2. Reconciling – or at least balancing – those norms in a manner that makes for a coherent system even where individual norms clash.

The question then arises of the specific uses for such a system. In answering that question there is no need to be prescriptive. However, it is possible to point to at least four such uses:

  • Predicting Legal Risks. An AI system such as that proposed above may help both natural and legal persons predict their legal risk exposure when engaging in online activities. In other words, it stands to benefit many different participants in the online ecosystem from the average Internet user to large companies such as Facebook, Google, Microsoft, and Apple.
  • Assisting lawyers and legal education. The AI system envisaged here may help lawyers construct informed and evidence-based arguments by, for example, highlighting clashes within their clients’ respective contextual legal systems. Such an AI system could also be used for legal education purposes: both as a tool for constructing and analyzing real legal cases, and for constructing hypothetical scenarios to which students have to apply their legal knowledge.
  • Law reform. An AI system such as that called for may further help law reform initiatives, of which there are many in the field of private international law (consider for example the work of numerous International Law Association Committees). The system could, for example, help identify instances of hyper regulation and propose formulations to minimize instances of conflicting laws.
  • Court support. At the extreme end of the scale, the type of AI system discussed may even be utilized by courts either to inform the court, or indeed, to directly or indirectly decide disputes.

It goes without saying that the requirements placed on the envisaged AI system, such as transparency, explainability, consistency, accountability, and fairness, may vary depending on the use to which the system is put. Clearly, for example, such factors would be paramount for a system used by courts.

Conclusion

Any time one writes about the future, the line between optimism and naivety is a thin one. On the one hand, one shouldn’t downplay the challenges of embarking on the mission to construct an AI-driven system to help revolutionize private international law. On the other hand, however, it would be a missed opportunity not to start envisioning what may be achieved when the technology makes such a mission more feasible.

Sufficiently advanced AI technology exists and is developing further at great speed. If humans are about to entrust their lives to AI as the driver of cars, and if AI is believed to have the ability to disrupt the legal industry, AI should also be utilized to solve some private international law challenges.

Professor Svantesson is a Professor in the Faculty of Law at Bond University in Australia. He is also an Associate at the Swedish Law & Informatics Research Institute and a Visiting Professor at Masaryk University in the Czech Republic.

Comment, Online Scholarship

Contracts, Treaties, and the Public Space

By Jérôme Sgard

[Click Here for PDF]†

Responding to Daniela Caruso, Non-Parties: The Negative Externalities of Regional Trade Agreements in a Private Law Perspective, 59 Harv. Int’l L.J. 389 (2018).

Daniela Caruso asks whether private law concepts may be instrumental in defending the interests of aggrieved third-parties to Regional Trade Agreements, or whether the former are doomed to remain ignored “non-parties.” This comment builds on her arguments and extends the discussion to the case of sovereign debts and IMF conditionality, where the parties also tend to act as “monadic,” realist, international agents. The hypothesis that emerges is pessimistic: in the absence of a developed jurisdictional order—a form of constitutionalization—third-parties and their interests are as difficult to identify as the broader public space where they should belong.

Introduction

In his 1927 doctoral thesis, Private Law Sources and Analogies of International Law, Hersch Lauterpacht contends that, being “a true offspring of the doctrine of sovereignty,” international law “was bound to reject any recourse to private law as concerned with interests deemed to be of an economic and lower order.”[1] He confronts this classical position and underlines, in particular, that “if the main distinction between private and public law is that the first regulates the relations of legal entities in a state of co-ordination, and the second the relations of those in a state of sub-ordination to one another, then, formally, international public law belongs to the genus private law.”[2] From this point onward, he explores a number of “analogies” that could be usefully drawn from the field of private law and put to use by international lawyers: contracts and quasi-contracts, to begin, but also torts and damages, arbitration, and bankruptcy.[3]

In her article, Daniela Caruso follows in the steps of Lauterpacht, although she does not mention him. And whereas her predecessor did not touch on commercial or economic matters—only on abstract legal conceptions—she considers the case of international trade agreements: can private law offer conceptual tools that might help account for the large negative externalities of Regional Trade Agreements (“RTAs”) on non-members (p. 393)? She thus echoes a long line of economic research that has tried for decades to measure the “diversion effects” of RTAs.[4] Moreover, as she draws on the private law vocabulary, she adopts a critical perspective vis-à-vis its laissez-faire expression, as predicated on formally neutral notions of privity, autonomy, and symmetry between the parties–a classic, nineteenth-century discourse which was, in fact, Lauterpacht’s implied reference. Caruso thus raises the political question of whether private law concepts, such as tort, may support a judicial strategy aimed at correcting uneven or unfair real-world economic relations (pp. 395, 409). She applies this questioning in particular to GATT Articles XXIII and XXIV and makes references to the Legal Realists’ progressive judicial strategy (pp. 421–26). She discusses in particular Oliver Wendell Holmes’s jurisprudence on labor relations (p. 416).

On the whole, and beyond the heuristic benefits of this comparison, the following conclusions of the Article are rather underwhelming: historically, the private law concepts have offered only partial and fragile support to aggrieved third parties; the two cited articles of the GATT Treaty are hard to leverage and their potential distributive outcomes are difficult to predict; and issues of jurisdiction add a further degree of uncertainty.

I. Which Jurisdiction?

A first limit of the overall argument is entirely pragmatic: Caruso’s corrective ambition regarding the present state of the world economy is premised on the existence of a final adjudicative body with the authority to identify and sanction negative externalities on “non-parties.” She underlines that the absence of a tax-and-transfer mechanism across countries is a key argument for drawing on private—rather than public—law concepts (p. 412). But she goes on to offer only vague suggestions regarding the judicial machinery that would be able to pass judgments and provide remedies: after raising doubts on the appropriateness of relying on the WTO Dispute Settlement Body (p.429), she mentions “arbitrators” without offering any more information on how they would have jurisdiction and guarantee execution of the judgment. In other words, we are back to square one: unless this dimension is fully considered, there are serious risks that the generic notion of a contract and the analogies it may be associated with become highly abstract and decontextualized, and thus inoperable. The debate may then rapidly flow back into the old natural rights discourse, where contracts are typically talked about as a self-contained and self-justificatory social institution.

This question about jurisdiction is illustrated by the way Caruso envisions the WTO trade regime. The Article seems to consider the GATT and WTO treaties as similar in nature to RTA treaties; this view is aligned with the large body of literature referenced in the Article that construes treaties as contracts between sovereigns.[5] The GATT and WTO treaties would simply present a broader, more inclusive or more comprehensive basis, though ultimately, the analogy with contracts would apply to both the GATT and WTO and the RTAs treaties in similar terms. Of course, this perspective raises a host of well-known questions, such as whether countries may adhere to multilateral treaties or conventions unilaterally after promulgation, without having been party to the drafting and without the drafters having a say. This dilemma raised became a serious obstacle as soon as multilateral agreements started to be negotiated upon at the League of Nations during the 1920s.[6]

The paradox is that, at the same time, Caruso also seems to suggest that the GATT and WTO regime is more akin to some kind of public or constitutional law, common to all sovereign states, because it establishes the “level playing field”—and a jurisdiction—on which fair and unified international markets should rest. From this viewpoint, RTAs may well be seen as specific, exclusive opt-outs—hence, as a contract-like private arrangement—while the WTO rules can be construed as a set of default rules. The broad policy debate on the various possibilities offered to post-Brexit Britain underlined this point quite well: a “no-deal Brexit” was taken to imply that Britain would only trade on the basis of WTO rules, until it enters a new generation of specific “contracts.”[7] In other words, there would be a hierarchy of norms, though no hierarchy of jurisdictions; the WTO and its Dispute Settlement Body have not established legal authority or jurisdiction over RTAs—or opt-out contracts—so the multiplication of RTAs and opt-out contracts has led to a non-hierarchic, or “anarchic,” international trade regime.[8] Hence, as Caruso rightly argues, the multiplication of RTAs fractures the global trade regime, destroys the underlying common good and leaves us with a more unfair, degraded (or “cannibalized,” p. 403) set of rules. But while she points to a broadly negative appraisal of the politics of the WTO, her overall perspective ultimately suggests that anything short of a return to fully-fledged, immaculate multilateralism would not work. At this point, private law tools may only offer to serve as a prop, at best.

II.  The Veil of Sovereignty

Moving beyond Caruso’s specific, trade-related discussion, we can take her discussion of private law analogies to other legal terrains. One problem that soon comes up is whether sovereignty is construed in terms that actually support the far-reaching contractual analogies that Caruso explores. To start with, when a country is exposed to negative externalities of an RTA to which it is not a party, those adverse effects are first perceived and recorded by private businesses whose trading conditions deteriorate. This chain of effects is significantly different than what occurs with military alliances, for instance. One should thus assume that the aggregation of these private resident agents results in a self-standing political body, with a capacity to contract with similar entities (or to sue them). But this step asks that we ignore the various underlying conditions and conflicts of interest among individual agents. The “Veil of Sovereignty,” or what economists call a “composition effect,” explains the difficulty of assessing the distributive effects of potential remedies.

Another question, following the contractual analogy as applied to sovereign, is what holds together the parties to a treaty-as-a-contract in a world without a credible adjudication and enforcement authority. The reference that Caruso makes to the “transactional” diplomacy of the Trump administration underlines the point and asks whether this new class of inter-state transactions rests on anything other than crude power relationships or strictly-aligned interests (p. 398). In other words, these “transactional” treaties would be self-enforceable. But in turn, we are prompted to ask, what was different about classic multilateral treaty-making? The fact that a major treaty member threatens to exit these treaties suggests that the latter do exercise a degree of practical constraints on the members’ discretion. Should we thus conclude that there are two classes of treaties, one of which is endowed with some kind of legal-contractual force and the other which might not?

The core question is therefore whether “contracting with a sovereign” is a proposition that makes any sense at all. Economists and specialists of International Relations have long underlined both the seminal and the problematic characters of this analogy.[9] Many economists, for example, defend that a sovereign debt contract does not rest on the “capacity to pay”—hence on a (private) notion of solvency—but on “the willingness to pay”—in other words, on the discretionary, unilateral decision of the sovereign. At this point, we are fully in the language of “the nation-state as a monadic actor” (p. 397), an animal that will only engage its peers in a self-interested, norm-free, realist mode.

A classic example in this discussion is to ask why there is such a thing as a sovereign debt market, if no rule and no court can ever bear on the behavior of a debtor country. The realist answer is that private institutions lend to sovereigns and rationally expect to be serviced because of the economic costs that a default would cause to the debtor: closed access to international finance, intense difficulties to finance foreign trade, a probable direct hit on the domestic banking sector. Debtor states would thus have a powerful incentive to protect their good reputations, which they should see as some sort of capital, the return of which would take the form of easy and cheap access to the capital markets. From this perspective, any support provided to a distressed debtor by a third party, like the International Monetary Fund, is doomed to reduce the incentives to serve the contract à la lettre and protect one’s reputation. Because such support would mitigate the costs of a possible default, it would inevitably make it more probable.[10] In other words, in a “transactional” or realist world—and contrary to the context described by Caruso—an institutional mechanism for crisis management and dispute resolution would become a source of moral hazard, and hence, of a structural decline of the market. Here, contractual discipline rests entirely on a logic of dissuasion, that is on a credible threat of retaliation. Powerful forces seem here to oppose any attempt at internalizing a concern for third-parties, or for externalities.

We may also refer here to a long list of historical or socio-legal contributions that explore how this microeconomic logic can sustain a variety of market structures. Examples include Avner Greiff’s analysis of the medieval Maghribi trade,[11] Lisa Bernstein’s classic study of New York diamond dealers,[12] or the broad literature on micro-credit or cases of privately-ordered market platform.[13] In all those cases, the exclusion of a delinquent party is loosely mediated or formalized, so that the legal character of the underlying transaction is generally narrow, if not dubious. The question from our present discussion is whether these private orders have a capacity to address the interests and grievance of non-members. And the presumptive answer is, as a rule, no.

III.  How the IMF Shapes Transactions with a Sovereign: Conditionality and Third-Parties

At the 1944 Bretton Woods Conference, the IMF received the mandate and the financial resources to support member-states at times of crisis. The problem was how the Fund could structure these financial operations to guarantee good policy outcomes and capital reimbursement. Remarkably, the solution was not found before 1953, under the form of the Stand-By Agreement (“SBA”), which was construed explicitly as neither a contract nor a treaty:[14] the father of the Fund’s legal doctrine, Joseph Gold, insisted many times that it should not be analogous to either a private bank loan nor a UN registered treaty like World Bank loans. The most visible correlate of this founding rule is that SBAs have been comprised, since then, of two separate unilateral commitments: one document is sent by the country to the Fund, where the country lists its policy commitments; and another one, issued by the Fund, then specifies that a specific amount of money will be made available to the country to use. In other words, the money is not explicitly lent—a step which would imply contractual language; it only “stands by.” More generally, no single document is ever signed by the two parties together during the whole life cycle of this proxy of a “loan.” Institutionalized rules of monitoring and enforcement (that is, conditionality) then add credibility to the word of the debtor country, in a well-structured, sequential, strategic game where both parties are expected to act in a means-end rational way.

In Joseph Gold’s writings, the rejection of the contractual language is first justified by the sheer complexity of all the variables that might affect the capacity—or indeed the willingness—of the sovereign government to remain faithful to its word. If a private law language had been adopted, breaking such contractual commitments would have proved too disruptive and therefore unhelpful.[15] Deviations over time are normal under an SBA and they should be the object of continuing discussion and negotiation, though under the ever-present threat that the whole program might be suspended or cancelled. But even at that point, the expectation built into the Fund’s rules of engagement is that negotiations should start again and a new transaction be entertained in the not-too-distant future. Membership to the IMF thus constrains how this relationship is imagined, if only because exclusion is not an option.

This strategic, non-contractual game comes with a significant correlate: the IMF has never asked that an SBA be voted on by the parliament of a crisis-country, submitted to a referendum, or be approved by a crisis-country’s highest court.[16] The Fund’s legal doctrine is also adamant that any dispute over the interpretation and execution of the initial two-way transaction should never be opened to a dispute-resolver, such as an international court or an arbitration panel; rather, it should remain entirely within the scope of the bilateral strategic discussion, which should thus be allowed to work as a self-contained forum where only two parties can enter: the IMF and the executive power of the member-country. Any extension of this discussion to a third party, even if it were affected by the agreement, is alien to this transactional logic. The logic of the realist, non-contractual SBA appears to thus confirm an emerging hypothesis, namely that in a post-multilateral trade regime, just as in a sovereign debt (or micro-credit) market, transactions between monadic borrowers remain possible. Legal engineers have designed viable models of transactions in which enforcement do not rest on a judicial authority with enforcement capacities. There is a suggestion, however, that there is no room here for third parties or for a recognition of their interests and claims.

 Conclusion

At least three salient and converging questions thus emerge from the present discussion: can private law concepts be leveraged in favor of third parties, or non-parties, in an environment devoid of a binding hierarchy of jurisdictions? Should the GATT and WTO treaties be envisaged as some kind of default rules, or indeed as the multilateral Grundnorm of international trade, that may potentially support “non-parties” in RTAs as they ask for redress? And does the self-contained structure of the IMF SBA illustrate a more general rule, whereby transnational legal orders may have strong, specific regulatory effects, although without ever being in a position to interact and negotiate formally with third parties?[17]

These three themes, in other words, all raise a question of constitutionalization, defined as a set of norms and norm-enforcing authorities that establishes the division between private and public, allowing for both a capacity to govern and for the defense of a set of basic rights. We know that these conditions are absent from today’s global world, where the public and the private are undifferentiated. Hence, the question that Caruso ultimately raises is whether the present state of third parties reflects the impossibility in general to identify, in legally effective terms, the notions of a public good and of a public space. Who are “non-parties,” if not the silent and invisible representatives of “the public”?

†    Suggested citation: Jérôme Sgard, Contracts, Treaties, and the Public Space, 59 Harv. Int’l L.J. Comment (Apr. 25, 2019), https://journals.law.harvard.edu/ilj/2019/04/sgard_contracts/.

[1] Hersch Lauterpacht, Private Law Sources and Analogies of International Law ix (1927).

[2] Id. at 81.

[3] See, e.g., id. at 253.

[4] See, e.g., Mian Dai, Yoto Yotov & Thomas Zylkin, On the Trade-Diversion Effects of Free Trade Agreements, 122 Econ. Letters 321 (2013); Christopher Magee, New Measures of Trade Creation and Trade Diversion, 75 J. Int’l Econ. 349 (2008).

[5] See Curtis J. Mahoney, Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties, 116 Yale L.J. 824, 834–38 (2007).

[6] See, e.g., Convention on the Execution of Foreign Arbitral Awards, Sep. 26, 1927, 92 L.N.T.S. 301.

[7] See Guidance: Existing Free Trade Agreements If There’s No Brexit Deal, Dep’t for Int’l Trade (Dec. 19, 2018), https://www.gov.uk/government/publications/existing-trade-agreements-if-the-uk-leaves-the-eu-without-a-deal/existing-trade-agreements-if-the-uk-leaves-the-eu-without-a-deal [https://perma.cc/H5SX-XHF9] (U.K.); see also What Would a No-Deal Brexit Mean for Trade?, Economist (Feb. 15, 2019), https://econ.st/2YZEI9qk [https://perma.cc/B4T5-DMW9].

[8] See, e.g., K. Kwak & G. Marceau, Overlaps and Conflicts of Jurisdiction between the World Trade Organization and Regional Trade Agreements, in Regional Trade Agreements and WTO Legal System (L. Bartels & F. Ortino eds., 2010); Armand C.M. de Mestral, Dispute Settlement Under the WTO and RTAs: An Uneasy Relationship, 16 J. Int’l Econ. L. 777 (2013).

[9] See, e.g., Eric Posner, The Perils of Global Legalism (2009); John J. Mearsheimer, The False Promise of International Institutions, 19 Int’l Security 5, 5 (1994).

[10] Jonathan Eaton, Sovereign Debt, Reputation and Credit Terms, 1 Int’l J. Fin. Econ. (1996); D. Gale & M. Helwig, Reputation and Renegotiation: The Case of Sovereign Debt, 30 Int’l Econ. Rev. 3 (1989); Roland Vaubel, The Moral Hazard of IMF Lending, 6 World Econ. 291 (1983).

[11] Avner Greiff, Contract Enforceability and Economic Institutions in Early Trade: The Maghribi Traders’ Coalition, 83 Am. Econ. Rev. 525 (1993).

[12] Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. Legal Stud. 115 (1992).

[13] Beatriz Armendariz & Jonathan Morduch, The Economics of Microfinance (2005); Jérôme Sgard, The Simplest Model of Governance Ever Seen? The London Corn Market (1885-1914), in Oxford Handbook of International Economic Governance (Eric Brousseau, Jean-Michel Glachant & Jérôme Sgard eds., forthcoming).

[14] Joseph Gold, The Interpretation by the International Monetary Fund of its Articles of Agreement II, 16 Int’l & Q. L. Rev. 289 (1967); Joseph Gold, The Law and Practice of the International Monetary Fund with Respect to “Stand-By Arrangements”, 12 Int’l & Comp. L.Q. 1 (1963).

[15] Joseph Gold, The “Sanctions” of the International Monetary Fund, 66 Am. J. Int’l L. 737 (1972).

[16] Id.

[17] Transnational Legal Orders (T. Halliday & G. Schaffer eds., 2015).

Essays, Online Scholarship

Human Rights, Diplomatic Wrongs

By Doug Cassel

The Inter-American Commission on Human Rights is one of several international human rights bodies actively undermined by the current U.S. Administration. Disrespect for the Commission is a gross miscalculation. It disserves both our values and our interests.

The Commission is the human rights watchdog of the Organization of American States. Its seven members are elected by the 34 participating governments of the OAS to serve in their personal capacities as experts. The Commission processes complaints; publishes hard-hitting reports; requests governments to adopt precautionary measures; refers and litigates cases against the 22 mostly Latin American States which accept the contentious jurisdiction of the Inter-American Court of Human Rights; facilitates friendly settlements; and issues press releases denouncing human rights reversals and lauding advances.

In recent months, for example, the Commission’s advocacy may have played a role in the release of one hundred protesters from prison in Nicaragua and was instrumental in securing a UN Human Rights Council resolution condemning serious human rights violations in that country.

With its wide-ranging powers collectively conferred by governments, the Commission is the most authoritative and credible human rights body in the Western Hemisphere. Past U.S. Administrations have nearly always supported it. They understood that encouraging respect for human rights in the Americas not only promotes our values, but also stimulates economic development, while helping to avoid wars, civil strife, and refugee flows.

Hence the United States funds most of the Commission’s regular budget. We nominate U.S. citizens for election by OAS member States to serve on the Commission. We urge other governments to participate in Commission proceedings.

But enter the current Administration. Its first step was to instruct our diplomats not to attend Commission hearings on two sensitive cases against the US. Our boycott put us in the company of only two other countries: Cuba and Nicaragua.

In June 2017 the candidate nominated by the State Department for election to the Commission (this writer) was defeated. Senior Department officials lifted nary a finger to win the election.

That same month, Republican Senators Ted Cruz and Mike Lee published an op-ed calling on the Trump Administration to reassess U.S. funding of the OAS, because of the Commission’s positions on abortion and gay marriage.

Later that year, the first budget under the Trump Administration was adopted. The United States paid its assessed quota of about $50 million toward the total OAS budget of about $83 million. However, because the regular OAS budget for the Commission is woefully inadequate (only about $5 million to $7 million annually), the Commission depends on additional voluntary contributions. In 2015, the US had voluntarily contributed an additional $2 million to the Commission; in 2016, $3.2 million; and in 2017, $2.7 million. In 2018, under the new Administration, the United States contributed zero.

In December 2018, Cruz, Lee and seven other anti-abortion Senators asked Secretary of State Mike Pompeo to cut off all US funding of the Commission, because of its support for women’s reproductive rights.

Whatever one’s position on that contentious issue, the Senators’ proposed remedy – a total cut-off of US funds – was grossly disproportionate. For example, of 259 press releases issued by the Commission in 2018, only one focused on abortion. In contrast, 41 focused on repression in Nicaragua, 12 on Venezuela, 12 on Guatemala, six on Honduras, and 43 on acts of murder or violence in other countries.

In March 2019 Secretary Pompeo responded to the Senators by firing what may be a warning shot at the Commission. The State Department announced a cut of $210,000 in funding for the OAS, equivalent to about 5% of US funding for the Commission.

Shortly before this announcement, in February, the United States again boycotted a Commission session. And in March the United States let pass the deadline without nominating a candidate to serve on the Commission.

At a time when human rights crises overwhelm several countries in the Americas, the Commission’s work is of critical importance. We must hope that future Administrations will once again appreciate the Commission’s vital role in our troubled hemisphere.

Essays, Online Scholarship

The Future of Planetary Defense and International Law

Editor’s Note: The following piece is a reflection from Georgetown Professor David Koplow on the space law panel he moderated at our International Law Symposium on March 9, 2019.

The panel on “The Future of Planetary Defense and International Law” addressed the provocative legal, scientific, and policy questions regarding what should be done if it is discovered that a large asteroid is on a collision course with Earth?

This problem is significant because: a) we know that asteroids do strike the planet all the time, although most of them are too small to notice or care about; and b) an impact by a large asteroid could, depending upon its size, composition, and other factors, cause devastation on a local, regional, or even global scale. At the moment, there is no known such threat on the horizon, but astronomers acknowledge that they are currently unable to detect, identify, and track a large number of potentially hazardous objects. Even more worrisome, humans have no tested, reliable, in-place capability for promptly and effectively responding to such a danger, especially if it were detected with little advance warning time.

In response, NASA and its counterpart space agencies in other countries have undertaken efforts to survey the population of near-Earth objects and to develop techniques that could be employed to deflect a dangerous intruder. Sophisticated experiments are underway or planned to study the nature and characteristics of asteroids and to explore mechanisms for altering their trajectories – but these are far from completion.

Although the subject of planetary defense lies overwhelmingly within the realm of science and technology, there are interesting and important legal aspects, too, and the panel addressed two of special note.

The first legal conundrum arises from the possibility that one conceivable technique for attempting to alter the trajectory of an oncoming asteroid would be to employ the vast power of a nuclear explosion on, inside, or near it.  Indeed, if the warning time were short, that may prove to be the only effective deflection technique. However, key provisions in some important, long-standing, and widely-adhered-to treaties stand in the way.  These instruments were crafted with problems vastly different from planetary defense in mind – they were designed to pre-empt a nuclear arms race in space, and they have proven remarkably successful in foreclosing what could otherwise have developed into a dangerous and destabilizing exoatmospheric competition. The difficulty in reconciling these very distinct types of objectives – dodging an oncoming asteroid and foreclosing additional military applications in space – may prove to be a severe international challenge.

A second principal legal issue arises from the possibility that an attempt to divert an asteroid might, unfortunately, prove to be only “partially” successful.  Suppose that the human intervention was unable to maneuver the asteroid sufficiently to make it miss Earth altogether, but did serve to alter its trajectory somewhat, so that it impacted Country X, instead of Country Y, where it would have struck if nothing had been done. Under applicable treaties, a country has “absolute” liability for damage caused on the surface of the Earth by its activities in space. That legal standard could result in an enormous exposure – the state(s) that in good faith exercised their best efforts to try to save the planet from an impact might incur an enormous financial responsibility for all the harm suffered by Country Y.

The most promising route considered by the panel for addressing both these legal issues is to exercise the powers of the United Nations Security Council. Under Chapter VII of the U.N. Charter, the Security Council holds a unique law-making ability, and possesses the authority to supersede the provisions of other treaties. If prompted by a genuine emergency, the Security Council could therefore authorize states to exert their best efforts for planetary defense, notwithstanding the provisions of the arms control treaties and it could likewise modify the usual liability standards. Of course, it will not be easy or automatic to draft suitable provisions that would deftly address the dangers and the costs without unleashing an unwanted arms competition and without leaving Country Y to fend for itself in response to a catastrophe.

 

David A. Koplow, Professor of Public International Law and National Security Law at Georgetown University Law Center

 

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The Case of Naït-Liman v. Switzerland Before the European Court of Human Rights: Where Are the Limits of the Global Fight Against Torture?

By Daniel Rietiker*

Introduction

On March 15, 2018, in the case of Naït-Liman v. Switzerland, the European Court of Human Rights (“ECtHR”) held that there had been no violation of the right to access a court within the meaning of Article 6, § 1 of the European Convention on Human Rights (“ECHR”). The case concerned the refusal by the Swiss courts to examine the applicant’s civil claim for compensation for the non-pecuniary damage arising from acts of torture allegedly inflicted on him in Tunisia in 1992.
I offer a critical discussion of this important case with an attempt to define the limits in the global fight against torture. In Part I, I present the facts of the case, as well as the reasoning and the main conclusions of the Court; in Part II, I critically assess the judgment from three different angles. In the final Part, I add several personal conclusions.

I. The ECtHR Decision

The applicant, Abdennacer Naït-Liman, born in 1962, is a Tunisian national who has acquired Swiss nationality during the proceedings before the Swiss tribunals.

He was arrested in April 1992 by the police in Italy and taken to the Tunisian consulate in Genoa. He was then taken to Tunis by Tunisian authorities. He alleges that, from April 25, 1992 to June 1, 1992, he was detained and tortured in Tunis in the premises of the Ministry of the Interior on the orders of A.K., the then-Minister of the Interior. In 1993, he fled Tunisia for Switzerland, where he was granted asylum in 1995.

On July 8, 2004, the applicant lodged a claim for damages with the courts of the Canton of Geneva against Tunisia and against A.K. This claim was not successful and rejected by all courts, in last instance by the Federal Supreme Court, which dismissed it on May 22, 2007. The latter court held that it lacked territorial jurisdiction and that the Swiss courts did not have jurisdiction under the “forum of necessity” in the case at hand, owing to the lack of a sufficient link between, on the one hand, the case and the facts, and, on the other, Switzerland. A forum of necessity is a subsidiary forum, enshrined in Article 3 of the Federal Law on Private International Law, which reads as follows:

Where the Act does not provide for any forum in Switzerland and proceedings abroad prove impossible or it cannot reasonably be required that they be brought, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection shall have jurisdiction.

On November 20, 2007, the applicant lodged an application with the Court, whose second section delivered a Chamber judgment on June 21, 2016, holding, by four votes to three, that there had been no violation of Article 6 of the ECHR. On November 28, 2016, a panel of five judges accepted a request to refer the case to the Grand Chamber.

Regarding the merits of the case, the Court applied the traditional test, namely whether the limitation of the access to a court pursued a legitimate aim and was proportionate. It identified several legitimate aims pursued by the restriction on the right of access to a court, which were all related to the proper administration of justice, particularly in terms of the problems in gathering and assessing the evidence, the difficulties linked to execution of a judgment, the State’s wish to discourage forum-shopping, the risk of attracting similar complaints, which could create an excessive workload for the domestic courts, as well as the risk of potential diplomatic difficulties entailed by civil jurisdiction in such circumstances.

With regard to the proportionality of the restriction on the right to access to a court, the Grand Chamber identified two concepts of international law that were relevant for the present case: universal jurisdiction and the forum of necessity.

With regard to a possible international custom in the field of universal jurisdiction, although the States’ practice was evolving, the prevalence of universal civil jurisdiction was not yet sufficient to indicate the emergence, far less the consolidation, of an international custom which would have obliged the Swiss courts to find that they had jurisdiction to examine the applicant’s action. As it currently stood, international treaty law, in particular Article 14 of the UN Convention Against Torture also failed to recognize universal civil jurisdiction for acts of torture, obliging the States to make available civil remedies in respect of acts of torture perpetrated outside the State territory by the officials of a foreign State.

The Court concluded that international law had not obliged the Swiss authorities to open their courts to Mr Naït-Liman on the basis of universal civil jurisdiction for acts of torture.

The Court had then to determine whether international law had imposed an obligation on the Swiss authorities to make a forum of necessity available to the applicant. As the forum of necessity was not generally accepted by the States, it could not be concluded that there existed an international custom rule enshrining the concept of forum of necessity. The Court further noted that there was also no international treaty obligation obliging the States to provide for a forum of necessity.

It followed that international law did not impose on the Swiss authorities the obligation to open their courts with a view to ruling on the merits of the applicant’s compensation claim. Therefore, Switzerland enjoyed a wide margin of appreciation in this area. In other words, its freedom to decide whether or not it considered appropriate to grant to the applicant access to court was not restricted by international law. In order to determine whether the Swiss authorities had exceeded their margin of appreciation in the present case, the Court was required to examine, in turn, Section 3 of the Swiss Federal Law on Private International Law and the decisions issued by the Swiss courts.

The Court concluded that by introducing a forum of necessity with the criteria laid down in Section 3, the Swiss legislature had not exceeded its margin of appreciation. Moreover, it was reasonable to not to take into account the links to Switzerland that the applicant has created since he was awarded asylum in Switzerland because those links did not exist at the moment of the alleged acts of torture.

In conclusion, the Court considered that the Swiss courts’ refusal to accept jurisdiction to examine Mr Naït-Liman’s action seeking redress for the acts of torture to which he was allegedly subjected had pursued legitimate aims and had not been disproportionate to them. It followed that there had been no violation of the right of access to a court within the meaning of Article 6 of the ECHR.

Judge Wojtyczek expressed a partly dissenting opinion. Judge Dedov and Judge Serghides each expressed a dissenting opinion. The latter argued, inter alia, that the majority opinion had not sufficiently taken into account the principle of effectiveness, one of the key principles in the Court’s jurisprudence.

II. Assessment of the Judgment

In part II, I will critically assess the reasoning and main conclusions of the Court. The Part is divided into three sections. Section A will deal with the right of the victims of torture to remedy and reparation; Section B will be devoted to one aspect of the Court’s interpretation methodology in the present case, as well as to its impact on the proportionnality of the restriction to the right to access to court, and Section C, finally, will examine the question whether the erga omnes effect of the prohibition of torture compelled Switzerland to open its courts to the applicant.

A. Remedy and Reparation for Victims of Torture

Without doubt the most important achievement of the judgement lies in the fact that the Court, in several paragraphs, clearly confirmed and highlighted the right for victims of acts of torture to obtain appropriate and effective redress, and that States are encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are based on facts with occurred outside their geographical frontiers. The following paragraph is a quotation from the “general conclusions” of the Court’s judgment:

[¶] 218. [I]t should be reiterated that this conclusion does not call into question the broad consensus within the international community on the existence of a right for victims of acts of torture to obtain appropriate and effective redress, nor the fact that the States are encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are based on facts which occurred outside their geographical frontiers. In this respect, the efforts by States to make access to a court as effective as possible for those seeking compensation for acts of torture are commendable.

The Court further stated that the right to obtain such redress is firmly embedded in international law and, in particular, Article 14 of the UN Convention Against Torture, which had been ratified by Switzerland on December 2, 1986. Indeed, Article 14 states, “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”

In addition, the Court rightly referred to the UNGA Resolution 60/147, adopted on December 16, 2005, containing in its annex the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” which enshrine in their section VII the right of victims to equal and effective access to justice, adequate, effective and prompt reparation for harm suffered, as well as access to relevant information concerning violations and reparation mechanisms.

Furthermore, the Grand Chamber, in the logic of the ECHR as a “living instrument which…must be interpreted in the light of present-day conditions,” one of its most prominent interpretation principles, expressed the opinion that States are under the duty to follow the potential developments in this dynamic area of law and update their laws and practices accordingly:

[¶] 220. Nonetheless, given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it.

In other words, the Court accepted and reiterated without hesitation the existance of the right of victims of torture to redress and compensation and left open the door for future developments in the field. The exact scope of this right, however, and in particular the question whether States are obliged to guarantee this right even for acts of torture that were inflicted outside their territories by foreign officials, as the applicants submitted, was more disputed.

B. The Court’s Refusal to Read the ECHR as a Whole
and Its Impact on the Proportionality of the Restriction

Interpreting an international treaty is not a precise, mathematical exercise, but rather an art of identifying those rules among others whose application seems appropriate in a certain situation.† In the present case, the Court made strong use of the comparative element in order to determine the (broad) margin of appreciation on which Switzerland could rely. This comparative approach is appropriate and in line with international law, deriving from Article 31 § 3 (c) of the Vienna Convention of the Law of Treaties (“VCLT”), according to which “relevant rules of international law” have to be taken into consideration in treaty interpretation. On the other hand, other important interpretation principles, flowing directly from Article 31 § 1 of the VCLT, the so-called general rule of treaty interpretation prescribing that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,” are not mentioned in the legal analysis of the Grand Chamber.

In particular, the Court did not refer to the principle requiring a treaty provision to be interpreted in light of the entire text of the treaty, a principle raised by one of the third party interveners, Citizens’ Watch, and applied by the Court, inter alia, in ¶ 68 of Klass v. Germany and ¶ 48 of Stec v. United Kingdom (“The Convention must also be read as a whole…”). From my point of view, the lack of consideration of this method of interpretation had important repercussion on the proportionality of the restriction to the right to access a court for the following reasons.

In the instant case, a lot of energy has been used by the Court to determine the width of the margin of appreciation on which Switzerland could rely as a result of the absence of a consensus in this domain. If this is as such not wrong, that the margin of appreciation, as interpreted by the Court in ¶ 78 of Dickson v. United Kingdom and ¶ 68 of Emonet v. Switzerland in a given situation is not determined exclusively by the existence (or absence) of consensus of the Member States of the Council of Europe, but also by the nature and importance of the right at stake, the intensity of the interference, as well as the nature and importance of the aim pursued.

In particular, the Court did not consider the absolute nature of the prohibition of torture within the meaning of Article 3 of the ECHR, as a norm of jus cogens. In the leading case in the field of extraordinary rendition El-Masri v. the former Yugoslav Republic of Macedonia, the Grand Chamber of the Court held:

[¶]195. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation …. The Court has confirmed that even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ….

The Court chose not rely on this strong language, supposedly because the main question that it had to decide was whether Switzerland had committed a violation of the right to access a court within the meaning of Article 6 of the ECHR. In other words, not confronted with an explicit torture complaint within the meaning of Article 3 of the ECHR, the Court concluded almost automatically from the broad margin of appreciation in the instant case due to lack of consensus concerning universal civil jurisdiction and forum necessitatis to the proportionality of the restriction without pondering the competing interests at stake.

As a result, while the Court heavily—perhaps too heavily—considered how the questions of forum of necessity and universal civil jurisdiction for victims of torture was dealt with abroad, it took a narrow approach towards its own instrument, the ECHR, and did therefore not take into account the broader picture of the case, namely that Mr. Nait-Liman had endured serious acts of torture. From my point of view, this fact could have played a certain role in the question of whether the restriction of the applicant’s right to access a court has been proportionate.

C. The Erga Omnes Effect of the Prohibition of Torture
Did Not Compel Switzerland to Open Its Courts to the Applicant

The prohibition of torture is, as the Court itself has recognized in, for example, ¶ 61 of Al-Adsani v. the United Kingdom, one of the rare norms of jus cogens and an obligation erga omnes. The ICJ, in ¶ 33 of its Barcelona Traction Case, held that, by their very nature, certain obligations are the concern of all States and that, in view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omens. In ¶ 34 of the judgment, the ICJ gave some examples for such obligations, such as the outlawing of acts of aggression, and of genocide and to “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”

This has been confirmed later within the Articles on the Responsibility of States for Internationally Wrongful Acts. In accordance with their Article 48 § 1(b), “[a]ny State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if…the obligation breached is owed to the international community as a whole.” Moreover, paragraph 2(b) of the same provision adds that “[a]ny State entitled to invoke responsibility under paragraph 1 may claim from the responsible State…performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached” (emphasis added).

Within the ECHR, a special mechanism establishes, at least in theory, an erga omnes obligation allowing States Parties to file inter-State complaints. In accordance with Article 33 of the ECHR, “[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party” (emphasis added). It derives from the wording of this provision that a State Party to the ECHR does not have to be directly injured by a breach of the Convention rights in order to rely on this mechanism.

Practical and concrete examples, however, where States that were not directly affected by a violation of international law intended to invoke responsibility of another States for the safeguard of interests of the international community are very rare, if not inexistance. Antônio Augusto Cançado Trindade, former president of the Inter-American Court of Human Rights and now judge at the ICJ, argues that while the concept of obligation erga omnes has certainly entered in the international case-law, in particular the jurisprudence of the ICJ, that court had, in spite of those references, not yet extracted the consequences of the affirmation of the existence of the concept.‡

The same can basically be argued for the ECHR, where the examples of inter-State complaints, in particular the successful ones, are very rare. Moreover, the more recent applications do not contain an erga omnes logic, but have been filed by States Parties pursuing the protection of the interests of their own nationals, in the logic of the traditional “diplomatic protection” exercised by States in favour of their nationals. Examples include Georgia v. Russia I in 2014 and subsequent applications (all pending), and Ukraine v. Russia (several applications since 2014, all pending).

To sum up this section, whereas the ECHR is very tough on States Parties when they commit torture on their own territory, States Parties to the ECHR and the Court seem to care less when the impugned facts happen abroad, without obvious link to one of the States Parties to the ECHR. This is understandable and justifiable considering the weakness of the concept of obligation erga omnes in international law, which remains ineffective in practice. The result reached by the ECHR also expresses the clear quantitative difference between a well-integrated regional system of human rights protection, such as the ECHR system, on the one hand, and a universal system, where the same solidarity between members and strong institutions are often lacking, on the other.

Conclusion

Having regard to what precedes, the detailed and well researched judgement explains, in general, convincingly why there was no violation of the right to access a court. It contains some very positive aspects, in particular the confirmation of the existence of the right of victims of torture to remedy and compensation. Moreover, the Court did not shut the door for similar claims in the future by emphazising that this area is dynamic and subject to change and, in the same logic, by inviting the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture.

As a result, it can be argued that the Court struck a defendable balance between the arguments and interests at stake. In particular, even if the concept of obligation erga omnes is more than wishful de lege ferenda, it is not a reality on the global scale yet. As a result, Switzerland, as a State Party to the ECHR, was not compelled, based solely on the prohibition of torture as an obligation erga omnes, to open its tribunals in the sense claimed by the applicant, who had been tortured in Tunisa by Tunisian officilas and who had only Tunisian nationality at the material time.

On the other hand, I argue here that, once it concluded that Article 6 ECHR is applicable to the present case, the Court had certain elements to consider the restriction to the applicant’s right to access a court disproportionate. In terms of judicial policy, it could have done so in a narrow, case-specific manner, without admitting a general duty to establish universal jurisdiction for all future cases of civil actions for reparation of torture. A broader and effective interpretation of Section 3 of the Swiss Federal Law on Private International Law, in light of the special nature of the prohibition of torture in international law (jus cogens), would not have constituted a revolutionary development, but could have enabled the applicant to seek remedy and reparation for the crimes that he had endured in Tunisia. In the same time, it would have constituted a discrete, but significant step for the rights of future victims of torture. To recall and stress the right to an effective remedy and to reparation in favor of victims of torture, on the one hand, but not to find a violation of Article 6 ECHR in the very particular situation of the applicant, on the other, looks, from my point of view, somehow half-hearted and runs at odds with the—generally—very effective and practical protection of human rights guaranteed by this unique Court that has, in the past, so much contributed to the peace and rule of law on the European continent.

*     PhD., Senior Lawyer at the ECtHR (Strasbourg), international law lecturer at Lausanne University, member of the adjunct faculty of Suffolk University Law School (Boston MA). He was a visiting fellow at Harvard Law School in 2014. The views expressed in this post are strictly personal.

†     See Int’l Law Comm’n, Rep. on the Second Part of Its Seventeenth Session 3–28 January 1966 and on Its Eighteenth Session 4 May–19 July 1966, U.N. Doc. A/6309/Rev.1, at 50, cmt. 4 (1966).

‡    A.A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium 313 (2nd ed., 2010).

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The Justice Conundrum: Africa’s Turbulent Relationship with the ICC


By Jon Silverman

In Volume 59 of the Harvard International Law Journal, authors Courtney Hillebrecht and Alexandra Huneeus, with Sandra Borda, argue in “The Judicialization of Peace” that the International Criminal Court (“ICC”) and the Inter-American Court of Human Rights, in their positive engagements with Colombia’s long-running internal conflict, have “facilitated and hastened a change in the settled norms around transitional justice.” They posit that this hastening has been achieved through a long series of dialogues between courts—both internal and international—and government, and among non-state actors, such as NGOs, the media and academia. The authors use the term “shadow effect” to describe the engagement of the courts, particularly the ICC, with the peace process in a way which nurtured transition within a framework of legal accountability.

The authors point out that this outcome confounded expectations because, during four years of negotiations, many had predicted that the involvement of the two courts would impede the peace process. The Colombian experiment is certainly instructive, but can it be seen as a blueprint for changing “the settled norms of transitional justice?”  As the authors of the article point out, “Colombia has more stable institutions and a stronger domestic judiciary than any other situation before the ICC.” This post will query whether any of the lessons from Colombia are applicable to sub-Saharan Africa, where the ICC has focused all of its prosecutions, and whose states, in the main, suffer from weak institutions and destabilizing ethnic contestation.

I have drawn this post from qualitative research, funded by the British Academy, into the engagement of the ICC with two East African states, Kenya and Uganda, where the court has been seen as anything but a midwife of accountability. My research included some thirty semi-structured interviews with civil society representatives, including judges and advocates, about the ICC and the so-called “impunity gap” in Africa. I supplement this ethnography with more general observations about the performance of the ICC’s Office of the Prosecutor (“OTP”) over a decade and a half.

Sparring with the ICC

A plethora of explanations have been offered for Africa’s growing disaffection with the ICC. Mueller suggests that initial support for the court was strong as long as its investigations centered on non-state actors such as the Lord’s Resistance Army, but when the focus shifted toward ex-heads of state and even serving presidents, self-preservation became the dominant response. This ICC challenge to the principle of immunity from prosecution for leaders and senior officials for genocide, war crimes and crimes against humanity is anathema to the African Union (“AU”) and was condemned by the Assembly of the AU, meeting in Equatorial Guinea in July 2014.

For Evelyne Owiye Osaala, primary responsibility lies with the UN Security Council (“UNSC”) for being “selective in the recognition and waiver of immunities for international crimes in favour of the interests of its permanent members.” This argument is commonly voiced on the African continent by those who believe that U.S. President George W. Bush and U.K. Prime Minister Tony Blair should have been held to account legally for the invasion of Iraq in 2003. For many, the thesis that the UNSC demonstrates partiality was strengthened by the capture of the former Ivory Coast president, Laurent Gbagbo, by French and American troops in 2011 when Paris and Washington demonstrably threw their weight behind Gbagbo’s election opponent, Alessane Outtara.                 

By contrast, Nel and Sibiya point out that the ICC has opened preliminary investigations in Iraq, Colombia, Afghanistan and Georgia, “thereby dispelling the myth that the ICC only focuses on situations in Africa.”

The Bashir Effect

All of these assessments have merit, but the real issue is whether a subtler approach by the OTP, relying on a “shadow effect” rather than confrontation, might have done more to challenge long-cherished presumptions of the inviolability of presidents on the continent. It is undeniable that the March 2009 issuing of an ICC warrant for the arrest of Sudanese president, Omar al-Bashir, began the process of framing the court as an instrument of Western colonialism, a viewpoint summed up by the Gambia’s then Information Minister, Sheriff Baba Bojang, who reportedly called the ICC “an international Caucasian court for the persecution and humiliation of people of colour, especially Africans.”

The indictment did not deter Bashir from successfully testing the concept of impunity by visiting Nigeria for an African Union summit in 2013 and South Africa in 2015. The visit which provided the impetus for this research study was Bashir’s visit to Uganda in 2016, when he attended the re-inauguration of President Museveni. At the ceremony, the Ugandan leader’s attack on the ICC as “a bunch of useless people”, provoked a walkout by the ambassadors of the US and Canada.

Like South Africa, Uganda had once been a proponent of the ICC and, indeed, was the first country to refer a case—that of the Lord’s Resistance Army leader, Joseph Kony—to the court, after it came into being in 2002. Announcing the referral, Museveni and the ICC Prosecutor, Luis Moreno-Ocampo appeared at a joint press conference in London, which an opposition member of parliament in Uganda criticized as a misstep because it gave the impression that the OTP was doing the bidding of the Ugandan president. As if to assert his independence, Ocampo followed this up with a visit to Kampala at which he declared that he would “interpret the referral as concerning all crimes under the Rome Statute committed in Northern Uganda, leaving open the possibility of investigating alleged atrocities by government forces.”

It is true that Ocampo’s dealings with Colombia also opened up the possibility that the army, as well as the FARC rebels, might come under investigation from the court but crucially, the Colombian government eschewed a strategy of confrontation with the OTP for one of “judicial diplomacy.” This entailed cooperating with all requests for information and for meetings with the OTP during field visits and in 2009, adopting the Rules of Evidence and Procedure of the ICC and ratifying the Agreement on the Privileges and Immunities of the Court.

This deft legal courtship between Colombia’s institutions and the OTP made it unnecessary for one side to be seen as a supplicant and the other as a potential punisher. By contrast, in East Africa, a civil society with far shallower roots used the ICC indictment against Sudan’s Bashir to lock horns with leaderships determined to uphold the immunity of heads of state, with predictable consequences. When Bashir made a return state visit to Uganda in November 2017, the Uganda Victims Foundation could have had little hope of success when filing an application at the International Crimes Division of the High Court for enforcement of the outstanding arrest warrants. The court duly declined to issue a provisional warrant and instead fixed the hearing to a later date, “effectively quashing any attempts to arrest the Sudanese president.”

The Kenyatta/Ruto Prosecution

As the “Judicialization of Peace” makes clear, the OTP could plausibly present the opening of a preliminary investigation in Colombia as a means of facilitating and nurturing the peace process. In Kenya, by contrast, the OTP failed to persuade the then-government to voluntarily refer the post-election violence of 2007 to the ICC and so the prosecutor, for the first time in the court’s history, had to use his proprio motu powers to initiate an investigation. The danger of thus “owning” the intervention—which led to indictments against President Uhuru Kenyatta and his deputy, William Ruto—was that the OTP would be as much on trial as were the defendants.

In 2007, Kenyatta and Ruto were bitter opponents and their tribal communities—Kenyatta’s Kikuyu and Ruto’s Kalenjin—engaged in bloodshed which led to more than one thousand deaths, mainly in the Rift Valley. But, for the 2013 election, while under indictment from the ICC, they formed an alliance which effectively subverted the notion of “victim-centered justice,” so central to the ICC’s mandate. A report by the civil society alliance, Kenyans for Peace with Truth and Justice, put it like this:

In a strange ironical reversal, Mr Kenyatta and Mr Ruto now presented themselves as victims, the hapless targets of an imperialistic plot against Africans. A plot, moreover, that would ultimately undermine democracy in Africa by blocking reconciliation efforts, such as those that the political alliance headed by Uhuru, representing the Kikuyus, and Ruto, representing the Kalenjins was purportedly trying to achieve. In turn, the ICC was cast as the pliant tool of a Western conspiracy against Kenya’s sovereignty.

The Weakness of the Office of the Prosecutor

When the trial began in The Hague, it became apparent early on that the OTP was struggling. The prosecutor, Fatou Bensouda, later complained that over half the witnesses in the case against William Ruto withdrew or retracted their initial testimony, and others were killed or bribed in the Kenyatta case:

The level of interference with those witnesses was such that it started before; it was maintained throughout the cases; and even after. My office was trying to find various ways to protect and preserve the evidence and bring it before the judges This was a huge challenge, including their own protection as well as that of most of their families. We were having to protect witnesses even against their own communities; it became very complicated in the end. Not only were the witnesses pulling away from the case, but there were even attempts at interfering with their family members.

Lawyers interviewed for this research argue that the OTP should have expected this level of non-cooperation, which makes its determination to go ahead with the prosecution all the more surprising (a similar interpretation can be made about the case against Laurent Gbagbo which also collapsed at trial in early 2019). Here again, by exercising its “shadow effect,” the ICC may have a more potent, if less showy, weapon than by prosecuting. After all, faced with an unwillingness to cooperate by a state, the OTP has none of the resources available to a domestic prosecutor, such as subpoenas, surveillance and policing, and cannot visit the scenes where the crimes were perpetrated without the acquiescence of national state authorities.

In the Kenyatta case, requests for information from the Kenyan authorities went unanswered and the Attorney-General refused to hand over phone, land and asset records. But lawyer Gary Summers, who was part of the Kenyatta defense team from August 2011 onwards, believes the OTP can’t escape blame for the failure of the prosecution:

It was amateurish. You can’t just rely on human rights NGOs to find witnesses and interview them.  You needed trained investigators on the ground in Kenya to check the sources of some of the allegations. The OTP relied far too heavily on the report of the Waki Commission [the commission set up by the Kenyan government in 2008 to investigate the post-election violence of the previous year] to find witnesses. Indeed, the case against Kenyatta started with a single informant, Witness, no 4. The ICC needs a prosecutor who is ruthlessly focused on the target. This wasn’t the case with either Ocampo or Fatou Bensouda

(Interview with author, October 29, 2016).

Edigah Kavulavu of the International Commission of Jurists, Kenya Section, supported the prosecutions but remains disappointed by the way they turned out:

The general mood here was that we would get justice through the ICC. And that the Kenyan case would be an example to the rest of the world. But the OTP only had a small outreach office in Nairobi, from where witnesses were interviewed. And there was no proper profiling of victims. The OTP based its judgements about witnesses/victims almost entirely on information from civil society NGOs. And when the case finally opened in court, it was obvious that Ocampo was not trial-ready

(Interview with researchers, November 1, 2016).

Searching for any positive legacy of the Kenyatta/Ruto prosecution, it should be noted that it was the catalyst for discussions leading to the setting up of an International Crimes Division in Kenya’s High Court to make good on the promise of complementarity.

Likewise in Uganda, following the 2008 Juba Peace Agreement between the government and the Lord’s Resistance Army, a war crimes division was established in the High Court (later rebranded, when Uganda adopted the International Criminal Court Act, as the International Crimes Division). Nevertheless, the performance of the ICC in Africa has been a poor one, as it continues to grapple with the ongoing geo-political turbulence of internecine and inter-state rivalries.

The Individual or the Community?

This post has sought to examine the fractious relationship between the ICC and Africa through the prism of the “judicialization of peace” achieved in Colombia. It has pointed out the significant differences between a state with relatively stable institutions underpinned by a self-confident civil society and countries where the impunity of leaders may have been challenged but not overturned. But there is another distinction which has to be considered.

The ICC was established to try crimes committed by individuals rather than states, and in prosecuting Uhuru Kenyatta, the ICC addressed his individual criminal liability for crimes committed during the 2007 post-election violence rather than putting the state of Kenya on trial. However, within Kenyan society, Kenyatta’s individuality is intimately bound up with a heritage of Kikuyu patrimonial obligations. Historically in this patron-client arrangement, there is “a shared understanding of the appropriate relationship between leaders and their communities that gave rise to complex moral economies in which rulers were expected to provide for their followers in return for their support.”

In Uganda, Museveni, from the Bahima tribe, is seen as a bulwark against the “troublesome” Acholi of the northern region (from which the Lord’s Resistance Army sprang). In other words, in these East African countries, a criminal prosecution of the patron can be presented as an attack on the clan, raising the possibility of all those dependent on the patron being deprived of material benefits and political influence if he is brought down. In these circumstances, it was all too easy for the embattled Kenyatta to make a case that, as the representative of the largest ethnic group, he embodied the nation, standing resolute against an alien, Western-backed institution, the ICC. With the African Union implacably opposed to the court, the post-Enlightenment notion of individual responsibility and culpability is steadily being reinterpreted on the African continent as a concept of collective condemnation and the ICC made to look like the cuckoo in the nest.

Jon Silverman is Professor of Media and Criminal Justice at the University of Bedfordshire (UK), where his research projects have included media coverage of war crimes trials in Sierra Leone and Liberia and the relationship between the International Criminal Court and Africa. He is about to embark on research into the impact of social media on ethnic relationships in Sierra Leone and Liberia. In 2017, he was an international election observer on behalf of the National Democratic Institute for the second round of the Liberian presidential election.

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