Apr 18, 2025 | Online Scholarship, Perspectives
*Zej Moczydłowski
1. Introduction
Regardless of one’s perspective, the case of Dominic Ongwen is one of the saddest in the history of the International Criminal Court (ICC). Even to those seeing him as a perpetrator of terrible war crimes, specifically of a sexual nature, it is undeniable that his abduction at a young age and subjection to the indoctrination of Joseph Kony’s Lord’s Resistance Army (LRA) is cause for sorrow. Meanwhile, those who focus on his dual status as not only a perpetrator—but also a victim himself—cannot deny the heinous, horrific, and sometimes unspeakable sexual and gender-based violence for which he was responsible.
Neither of these disparate views of Ongwen is wrong. Yet, those contemplating them have largely failed to consider their overlap and how the intersection should inform and influence the opposing view. This paper seeks to flesh out this issue, examine Ongwen from both sides and argue that the need to punish sexual and gender-based violence (SGBV)[1] caused the trial to largely ignore Ongwen’s status as a victim-perpetrator. It concludes by proposing how, in similar prosecutions, these views can be considered contemporaneously by creating a bifurcation of charges. In such cases, comparable defendants could face one prosecution for charges relating to SGBV—where defenses pertaining to their history as child soldiers would not be considered—and another prosecution for charges relating to all other aspects of warfare where defenses relating to their being a victim-perpetrator would be considered heavily.
Part 2 provides a general introduction to the LRA and Ongwen. Part 3 examines the case at large, focusing on two issues: the SGBV for which Ongwen is arguably best known and Article 31(a) problems arising from his having been a child soldier. Part 4.1 looks at the history of how SGBV has been previously addressed in international courts, while Part 4.2 considers the history of child soldiering and how claims of mental defects have previously been approached relative to their culpability in a person’s actions. The case is and, in part, ensuing academic discussions are critiqued in Part 5, primarily touching upon the significance of the novel prosecution of forced pregnancy and the dismissal of Ongwen’s Article 31(a) defense. Lastly, Part 6 proposes that in future such cases, the actions of victim-perpetrators such as Ongwen should be considered through an approach that considers SGBV separately from traditional conflict-related crimes.
2. General History
2.1 The Lord’s Resistance Army (LRA)
Formed in Uganda in 1986 as a political rebellion, over the subsequent decades, the LRA grew into a particularly vicious organization known for its use of enslaved child soldiers, as well as “its massacres, sexual-based violence, mutilations, pillage, and abductions.”[2] Led by Joseph Kony, the group operated in Uganda and was directly in conflict with the Ugandan People’s Defense Forces (UPDF), utilizing weapons varying from machetes and knives to machine guns and rocket-propelled grenades.[3]
In its earlier years, the LRA received support from Sudan through weapons, training, and base locations.[4] While fighting its own conflict in Uganda, it also fought on behalf of Sudan against the Sudanese People’s Liberation Army (SPLA).[5] However, after the terrorist attacks against the United States on September 11, 2001, the Sudanese government was persuaded to let Ugandan troops enter Sudan and rout the LRA from bases there, leading to several LRA units crossing back into Uganda and the events addressed in Ongwen.[6]
By 2006, the LRA was responsible for the displacement of over one million Ugandans, over 100,000 murders, and the abduction of tens of thousands of children. Many of these children were put on the front lines and forced to “kill, mutilate, and rape family members, schoolmates, neighbors and teachers.”[7]
2.2 Dominic Ongwen
While Dominic Ongwen’s exact age is unknown, it is believed that he was born in Northern Uganda around 1978 in Coorom and was abducted by the LRA around 1988, when he was somewhere around the age of ten or eleven.[8] During his abduction, “he was forced to watch the killing of a young relative by child soldiers; forced to participate in a reprisal attack on a village [ and] [] forced to skin alive a young abductee who had tried to escape.”[9]
The LRA abducted children because they were easier to indoctrinate and coerce through a system of physical and psychological abuse in which they “were forced to beat and/or kill other abductees… witness severe violence being inflicted on others… and constantly [face] physical violence or death if they broke LRA rules.”[10]
After his abduction, Ongwen rose through the LRA ranks. By 2002—the timeframe relevant to the charges—he had risen to the rank of Major and was a battalion commander.[11] By the end of 2004, he was promoted to Colonel and then Brigadier General.[12] In this command capacity, and sometimes as a direct perpetrator, he engaged in the conduct for which he was charged.
3. The Case
In December 2003, Uganda referred crimes allegedly committed by the LRA to the ICC, and in July 2004, the Prosecutor announced that an investigation was underway. On July 8, 2005, Pre-Trial Chamber II issued arrest warrants under Article 58 against Joseph Kony and members of the LRA leadership; Ongwen was one of five individuals named.[13]
A decade later, in January 2015, Ongwen voluntarily surrendered to U.S. Special Operations Forces and the UPDF, was transferred to authorities in the Central African Republic (CAR), and then—after confirming to CAR authorities that he intended to surrender to the Court willingly—custody was transferred to the ICC.[14] Ongwen appeared before Pre-Trial Chamber II on January 25, 2015; his case was severed from Kony et al. on February 6, 2015.[15] Despite the severance of Ongwen’s case from that of Kony and other LRA leaders, the Defense would go on record that they believed Ongwen became a stand-in for Kony in a case that examined all of the LRA’s atrocities. Ongwen attempted to distance himself from the LRA’s leader, but, in the eyes of his attorneys, the Chamber ignored him and ultimately “…treated [Ongwen] as a scapegoat.”[16]
The Chamber issued a decision confirming charges against Ongwen on March 23, 2016,[17] charging him with war crimes and crimes against humanity against Ugandan civilians between July 1, 2002, and December 31, 2005.[18] “The numbers in the Ongwen case [were] staggering. Mr Ongwen was charged with 70 counts and 7 modes of liability—the most of any single defendant at the ICC.”[19] The Chamber broke charges into three categories: crimes committed during four attacks against internally displaced persons (IDP) camps, SGBV perpetrated by Ongwen himself against women in his household, and “other sexual and gender-based violence and conscription and use in hostilities of children under the age of fifteen.”[20]
Relating to the attacks against IDP camps, Ongwen was charged in Counts 1–49 under various modes of liability for crimes against humanity and war crimes such as attacking civilians, murder, torture, cruel treatment, other inhumane acts, and political persecution.[21] These crimes, however, are not the focus of this essay and will not be expanded upon.
SGBV charges, as previously noted, were split into two categories. Counts 50–60 were related to acts committed by Ongwen himself (forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages against personal dignity).[22] Counts 61–68 were related to SGBV committed by others under his command (forced marriage, torture, rape, sexual slavery, and enslavement).[23] [24] This case was the first time in ICC history that forced marriage and forced pregnancy were charged as separate crimes.[25]
However, another novel issue brought up in Ongwen was the fact that he is believed to be the only former child soldier to face ICC charges.[26] This led to his Defense arguing: “[f]rom being a child, up to when he reached the time of 2002 up to now, given the history, a given his life-long experiences, he was forced into his situation against his will. He is a victim.”[27] Ongwen’s childhood abduction resulted in this being the first ICC case to argue for excluding criminal responsibility under Article 31(1)(a) and (d).[28]
Article 31(d) deals with duress, whose discussion is distinct from the theory of mental defect resulting from trauma endured as a child soldier. However, it should be noted that the Defense attempted to introduce a novel approach to mental duress, which overlapped with the mental defect defense. They argued that, rather than being faced with the traditional “gun-to-the-head” presentation of duress, Ongwen faced duress due to Kony’s abuse of spiritualism to control those under his command and “to cement his power over vulnerable child abductees.”[29] In fact, the Charging Documents against Kony flatly stated that “members of the LRA believed he had spiritual powers and was omniscient, beliefs which Kony perpetuated to exert control over the LRA.”[30] However, the Chamber rejected these arguments, arguing that at the point of the alleged crimes, Ongwen was so senior a member of the LRA that it would be difficult to suggest that he kept committing war crimes out of fear for Joseph Kony.[31]
Moving to Article 31(a), a person would not be criminally responsible if, at the time of their conduct, they suffered “from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.”[32]
Regarding this defense, Ongwen’s team introduced expert testimony. It concluded that Ongwen suffered from mental defect and disease due to “his forced abduction by the LRA around 1987, continued through his years in the LRA…”[33] They claimed these diseases destroyed “Ongwen’s capacity to appreciate the unlawfulness or nature of his conduct and capacity to control his conduct to conform to the requirements of law.”[34] The Defense argued that Ongwen’s mental development ceased at the “time he was abducted, and this ensured that throughout the LRA, and even today, he has a ‘child-like’ mind which is incapable of forming the required mens rea for crimes or determining right from wrong.”[35] Their argument was not that Ongwen should have been tried as a juvenile but that his stunted mental development prevented him from developing the requisite capacity to commit these crimes with intent.
The Chamber, however, was not convinced that an Article 31(a) defense existed. It “identified six issues relating to the methodology used by [the Defense experts] in carrying out their assessments.”[36] It stated that a “number of issues, in particular as concerns the methodology employed, [affected] the reliability of the evidence provided by [the Defense experts], to the extent that the Chamber [could not] rely on it.”[37]
Specific issues relating to the Defense experts included their having blurred the line between their roles as forensic experts and treating physicians,[38] having failed “to apply scientifically validated methods and tools for use as a basis for a forensic report,”[39] having used “diagnostic labels from an outdated international classification system,”[40] and “[failing] to take into account other sources of information… readily available to them.”[41]
On February 4, 2021, the Trial Chamber found Ongwen guilty of 62 of the 70 Counts with which he was charged.[42] The eight counts of which he was not guilty were all related to the attacks on IDP camps; he was found guilty of every SGBV crime with which he was charged.[43]
During sentencing, the Chamber said that under normal circumstances, the gravity of the crimes committed by Ongwen would have resulted in life imprisonment.[44] However, it also noted that it was confronted “with a unique situation of a perpetrator who willfully and lucidly brought tremendous suffering upon his victims, but who himself had previously endured grave suffering at the hands of the group of which he later became a prominent member and leader.”[45] Consequently, Ongwen was not sentenced to life imprisonment but twenty-five years.[46]
Judge Raul C. Pangalangan filed a Partially Dissenting Opinion in the sentencing, believing a thirty-year sentence—the maximum permissible under Article 78(3)—was more appropriate.[47] He argued that not imposing a life sentence already took into account Ongwen’s personal situation.[48]
The Defense appealed both the conviction and sentencing. While appealing the conviction, in grounds for appeal 27, 29, 31–32, and 37–41, they “alleged errors in the Trial Chamber’s rejection of the Defence Experts’ evidence.”[49] The Appeals Chamber decided that the Trial Chamber was correct in finding that it could not rely on the Defence Experts’ evidence.[50] It also rejected all other grounds for appeal of the conviction and confirmed both the conviction[51] and sentencing decisions.[52]
In February 2024, the Trial Court issued a Reparations Order, stating the “amount required to provide the reparations awarded in this case to the direct and indirect victims of the crimes… would be approximately €52,429,000 EUR.”[53]
4. Historical Context
4.1 SGBV
The history of warfare is sadly rife with sexual and gender-based violence. Evidence, both historical and anthropological, “suggests that rape in the context of war is an ancient human practice, and that this practice has stubbornly prevailed across a stunningly diverse concatenation of societies and historical epochs.”[54]
In modern contexts, SGBV is no less common. Examples include the rape and murder of Chinese women during the 1937 invasion of Nanjing, mass rapes of German women at the end of WWII, and mass rapes of women in “modern-day armed conflicts such as Vietnam, Bangladesh, Uganda, the former Yugoslavia, Rwanda, Sierra Leone, Timor-Leste, Peru, the Democratic Republic of Congo, [Darfur], Libya, Iraq, and Syria.”[55] In short, “all forms of sexual violence, including forced pregnancies, have been used as tools of oppression and control over women and girls from time immemorial. Historically, however, the rules and practices of international criminal law have often overlooked violations of reproductive rights.”[56] This truth is visible when one examines the evolution of international criminal courts, which only recently started addressing SGBV as a form of crime distinct from other war crimes and crimes against humanity.
For example, the earliest manifestation of a modern international court, the International Military Tribunal at Nuremberg (IMT), did not expressly prosecute SGBV despite having the ability to “punish the overwhelming number of sexual assault crimes that took place during World War II.”[57] The IMT just included SGBV “as evidence of the atrocities prosecuted during the trial.”[58] Meanwhile, in the International Military Tribunal for the Far East (IMTFE), “rape crimes were expressly prosecuted… albeit to a limited extent and in conjunction with other crimes.”[59] It is worth noting that “the inclusion of rape in the Tokyo indictments resulted in the first prosecution of the rampant sexual violence of World War II.”[60]
The approaches to SGBV in the IMT and IMTFE have historically been seen as too tangential. Critics point out that while steps may have been taken in the right direction, they were relatively unproductive because those tribunals largely ignored SGBV.[61] For example, at the IMT, “French and Soviet prosecutors introduced, ‘evidence of vile and tortuous rape, forced prostitution, forced sterilization, forced abortion, pornography, sexual mutilation, and sexual sadism.’ Despite this evidence, no defendants were explicitly prosecuted or convicted for sexual crimes before the Nuremberg Tribunal.”[62]
Decades later, subsequent criminal tribunal iterations began to tackle SGBV in the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Dianne Luping, a Trial Lawyer in the Prosecution Division of the Office of the Prosecutor at the ICC, points out that the ICTY statute referred explicitly to rape; in contrast, the ICTR statute referred expressly to rape and enforced prostitution.[63] She adds that the way both statutes classified rape as a crime against humanity was “ground-breaking.”[64] Another author argued that in the ICTY and ICTR, “crimes committed exclusively or disproportionately against women and girls… secured reluctant but nonetheless ground-breaking redress.”[65]
Rape was first charged as a war crime and crime against humanity in the ICTY during Prosecutor v. Gagovic.[66] There, “the prosecutor focused exclusively on sexual assault and qualified rape as a violation of the ICTY’s grave breaches provision, a violation of the laws and customs of war, as well as a crime against humanity.”[67] All three defendants were found guilty of war crimes and crimes against humanity of sexual violence.[68] Likewise, at the ICTR, Prosecutor v. Akayesu,[69] ruled for the first time “that rape and other forms of sexual violence were used as instruments of genocide… and crimes against humanity.”[70]
Progress continued with the creation of the ICC. The Rome Statute enumerated multiple sexual crimes and demonstrated “an unprecedented degree of gender sensitivity in international criminal law.”[71] This explicit criminalization was noteworthy because prosecuting crimes requires that they be defined. Previously, it had been possible to prosecute SGBV under more general provisions, but that ability had rarely been exercised.[72] Specifying the nature and elements of crimes made it easier for prosecutors to determine when they were applicable and push their inclusion on a list of charges.
Yet, despite these promising steps, in its first twenty years, the only convictions for sexual crimes in the ICC[73] have arguably been Prosecutor v. Ntaganda[74] and now Prosecutor v. Ongwen.[75] One author argues that “although an international court’s success cannot, and should not, be measured simply by its number of convictions, it is evident that the ICC has not fulfilled the objective of ending impunity for gender crimes under international criminal law.”[76]
In addition to the explicit criminalization in the Rome Statute, progress continues, and other successes have been seen despite a lack of convictions. For example, during Fatou Bensouda’s term, the Office of the Prosecutor published a policy for investigating and prosecuting SGBV and made progress in charging them.[77] That publication was then expanded upon in December 2023 by Bensouda’s successor, Karim Khan, whose Office published a new “Policy on Gender-Based Crimes.”[78]
Additionally, juxtaposing the Office of the Prosecutor’s approach to the Lubanga and Ongwen cases demonstrates a changing attitude towards SGBV. In Lubanga,[79] it was “alleged that female child soldiers in Lubanga’s group were routinely raped and used as domestic servants by their commanders;” it was then “argued that this sexual abuse fell within one of the charges that Lubanga was facing, namely, ‘using children to participate in hostilities.’“[80] However, the Prosecutor did not separately charge SGBV crimes, and a majority of the Trial Chamber “refused to determine whether the rape of child soldiers by their commanders would satisfy that test.” [81] As will be noted in Part 5.1, Ongwen marks a departure from that approach.
4.2 Child Soldiers and Related Mental Defect Claims
Many factors make children ideal targets for development into soldiers. They are “physically and psychologically [more] vulnerable than adults, making them easier” to coerce and manipulate, and they are “less demanding than adults,” requiring less logistical support and pay.[82] Consequently, “children are combatants in nearly three-quarters of the world’s conflicts,” posing an ethical and moral dilemma for the professional militaries they confront.[83]
While their use has become more widely known due to increased international coverage of conflicts where they are utilized, the issue of child soldiers was already being addressed in the 1977 Additional Protocols to the Geneva Conventions I and II, which both noted that children how had not attained the age of fifteen would not be recruited nor allowed to partake in hostilities.[84] However, the term “child soldier” crystalized in the 1997 Cape Town Principles, which shifted the minimum age of culpability to eighteen and provided a more precise definition of a child soldier:
A person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.[85]
This definition and age limit was reaffirmed in the United Nations (UN) Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which further stated that States Party to the protocol would “take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities” and “shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.”[86]
Since establishing this cutoff, few individuals taken into armed groups before turning eighteen have been prosecuted as adults for actions committed during their tenure as child soldiers. The issue first truly came to light at the international level after the creation of the Special Court for Sierra Leone. Due to the pervasive use of child soldiers in that conflict, the question of criminal culpability amongst juveniles was hotly contested.[87] However, in a report prepared for the UN Security Council, Secretary-General Kofi Annan set the tone for future discussions by noting that “although the children of Sierra Leone may be among those who have committed the worst crimes, they are to be regarded first and foremost as victims.”[88]
Local governments in Africa, while having considered the prosecution of child soldiers, have largely not done so. After the Rwandan genocide, over one thousand children were imprisoned for their actions, but few were ever tried.[89] In 2000, the Democratic Republic of Congo executed a fourteen-year-old child soldier, but when it sentenced four others the following year, NGOs intervened and stopped the executions.[90] In 2002, Uganda charged two former LRA child soldiers, but again, NGOs successfully stopped the proceedings.[91]
These examples focus primarily on regional and localized violence by armed groups in Africa. However, the UN has also noted that “owing to the expanding reach and propaganda of terrorist and violent extremist groups, child recruitment and exploitation is in no way limited to conflict-ridden areas.”[92] The imprisonment of Omar Khadr—a fifteen-year-old Al Qaida member charged as an enemy combatant by the U.S.[93]—demonstrates that conversations regarding the prosecution of child soldiers extend across the world and into other types of conflicts as well. The U.S. admission that it held twelve juveniles at Guantanamo Bay[94] shows that combatants under the age of eighteen have been prosecuted for participation in terrorist organizations.[95]
Despite increased attention and efforts to limit the use of those under the age of eighteen in warfare, child soldiering remains prominent and has posed a challenge for militaries tasked with engaging them.[96] With the development of international courts, child soldiers have also begun to pose an issue to those seeking to provide justice for victims of war crimes and crimes against humanity. The question that has arisen is whether child soldiers should “be prosecuted for their crimes.”[97] Standards have not crystallized. “Ongwen is believed to be the only former child abductee to face charges before the ICC,”[98] but—as will be discussed in Part 5—in Ongwen, they arguably largely ignored the problem.
However, considering Ongwen, academics have more deeply considered the issue and have proposed a variety of approaches that could be taken in future cases where a victim—a former child soldier—turned into a perpetrator. A prominent theory, and one which was introduced by the Defense, is that a child abducted at a young age and forced to endure unspeakable horrors has had their moral compass so wholly shattered that they are incapable of understanding the wrongness of their actions.
This theory resembles the “Rotten Social Background” defense raised in United States v. Alexander.[99] There, in an opinion concurring and dissenting in part, Judge Bazelon argued that a “trial judge erred in instructing the jury to disregard the testimony about defendant’s social and economic background. That testimony might well have persuaded the jury that the defendant’s behavioral controls were so impaired as to require acquittal, even though that impairment might not render him clinically insane.”[100]
Regarding international law, one argument presented by the Defense was that his abduction at a young age triggered the protections reserved for trafficked persons and that, as recommended by the Office of the United Nations High Commissioner for Human Rights, “children who are victims of trafficking should not be subject to criminal procedures or sanctions for offences which are related to their situation as trafficked.”[101] The Defense proposed that under this rationale, his enslavement and trafficking by the LRA provided a “basis for his non-liability and non-punishment.”[102] The Chambers dismissed this argument.
Further examining international law—and while acknowledging that there is no system of binding precedent in the ICC[103]—the primary case that has touched upon the issue of child soldiers is that of Prosecutor v. Lubanga.[104] The Chambers’ treatment of child soldiers under Lubanga’s command merits consideration. “It was essential to the Lubanga decision that the child soldier was contemplated in continuity—once someone was a child soldier, they would always be considered a child soldier through and through.”[105] In Lubanga, the Chamber considered the link between one’s “past as a child soldier and the present as a former child soldier as linear… the child soldiering experience was constructed as ongoing and assured: it rendered the children as victims damaged for life, with their reality today as derivative of their previous suffering.”[106]
Yet, because Lubanga himself was not a child soldier, the case does not precisely fit the facts of Ongwen and, therefore, does not answer an important question that arose there. Namely, at what point—if ever—does a former child soldier finally take the mantle of responsibility for their actions upon their shoulders? In short, does the “hunted… ipso facto become the hunter upon his eighteenth birthday?”[107]
5. Critique
5.1 Changes in Attitudes Regarding SGBV
In Ongwen, the Trial Chamber appears to have taken the ICTY and ICTR’s “ground-breaking”[108] approach towards SGBV and gone further. It approached SGBV more holistically than in any prior case, demonstrating a compassionate approach to the horrors endured by SGBV victims and, for the first time, charging a Defendant with forced marriage and forced pregnancy. Of course, such progress is not itself an end-state. It is just another step in the right direction.
Regarding the Ongwen court’s progressive handling of victims, this was most vividly seen in the treatment of witness “P-227,” a female allegedly abducted and forced into becoming one of Ongwen’s “wives.” “The defence challenged her testimony, noting that P-227 denied having been raped when she spoke with NGO workers directly after her escape, but then claimed she had been raped when interviewed by ICC investigators.”[109] P-227 would explain the discrepancy as being due to the recent nature of the trauma and the NGO workers being male.
The Pre-Trial Chamber, taking “into account her account of trauma and her stated preference for speaking with female investigators,” ultimately found her testimony reliable.[110] “In reaching that conclusion, the judges demonstrated an awareness of the gendered social context that makes it difficult for some women to disclose their experiences of sexual violence, especially when speaking to men.”[111] The Trial Chamber made a similar sensitive choice and agreed to accept the testimony of SGBV recorded at the pre-trial stage. “In making that decision, the Chamber recognized that calling the witnesses to give their evidence a second time would put them under unnecessary strain.”[112] These attitudes, if replicated in future cases, will help ensure that victims, understandably intimidated by the proposition of speaking about their experiences, will not lose their chance at justice simply because they are traumatized and afraid.
The other part of the Ongwen decision that must be noted in this critique is the decision to hold Ongwen responsible for the crime of forced pregnancy. As Julia Tétrault-Provencher notes, the “Ongwen Trial Judgment represents a landmark holding for the prosecution of crimes concerning reproductive rights. This judgment, read in conjunction with independent human rights experts’ scholarship, can shed light on the legal contours of this crime.”[113]
Article 7(1)(g) of the Rome Statute lists forced pregnancy as a crime against humanity when it is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[114] Article 7(2)(f) then defines forced pregnancy as “the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.”[115]
However, despite many circumstances since the creation of the Rome Statute where forced pregnancy occurred, Ongwen was the first time the ICC’s charging decisions accused a defendant of this crime. As a case of first impression, it served as a chance for the Court to elaborate on its interpretation of the relevant sections of the Rome Statute. The decision in the trial resulted in mixed feelings at the international level.
On the one hand, in Counts 58 and 59, the Chamber found Ongwen guilty of forced pregnancy[116] and, as such, for the first time, established this crime as one that a prosecutor could successfully charge. However, as pointed out by Tétrault-Provencher, the Chamber did not find Ongwen guilty simply for not giving these women “the free choice to decide whether to continue their pregnancy.”[117] Instead, it found Ongwen guilty because he had committed other crimes in connection with the forced pregnancy. Tétrault-Provencher argues correctly that “the requirement to prove that the perpetrator had the intent of committing another grave violation encourages victims to bring cases of forced pregnancies as the aggravating consequences of another grave violation…”[118] This, in turn, “fosters the idea that reproductive violence cannot be prosecuted on its own.”[119]
Two strategies could be utilized to enforce better the concept that reproductive violence is in and of itself severe enough for condemnation and prosecution. First, Article 7(2)(f) could simply be amended, and the “the unlawful confinement of a woman forcibly made pregnant” clause struck and replaced with a phrase akin to “the forcible impregnation of a woman.” Alternatively, courts could use a broader definition of the “unlawful confinement” clause found in Article 7(2)(f). To confine means “to limit an activity, person, or problem in some way,”[120] therefore, in the context of forced pregnancy, confinement need not focus on physical confinement but rather any unlawful limitation placed upon a woman’s freedom to choose the outcome of her pregnancy. The adoption of either approach would allow for the prosecution of not only those who forced women to bear children by limiting their ability to escape captivity but also those whose actions deprived women of access to reproductive care through other measures.
This issue aside, from a historical perspective, the Ongwen case arguably serves as the current high point in the international criminal treatment of SGBV. Due to its compassionate treatment of witnesses and willingness to pursue novel crimes previously disregarded by other prosecutions, it should be seen as progress in prosecuting particularly vicious crimes, typically against the most innocent victims. That said, the provisions in the Rome Statute that required forced pregnancy to be tied to other grave crimes remain a limiting factor.
5.2 Significance of Dismissal of Article 31 Claims
While Ongwen is believed to be the only former child soldier to face charges before the ICC, the Trial Chamber largely ignored this issue, with little consideration being paid to the arguments that his background as a child soldier left him incapable of differentiating between right and wrong. The Prosecutor was even more silent; her 285-page Pre-Trial Brief, “which details all the charges and Ongwen’s position of authority… makes no mention whatsoever of Ongwen’s background… it is totally (and ironically) silent with regards to the brutalities and coercion that Ongwen himself had endured.”[121]
Ongwen’s lawyers point out that—in their verbiage—the Chambers carved out an “Ongwen Exception” in which “the toxic, traumatic, and often lethal environment of the LRA affected all other abductees, except for Mr Ongwen.”[122] This argument is not without merit, especially when examining that the Chambers largely refused to consider the long-term consequences of the potential long-term psychological damage inflicted upon Ongwen during his childhood. This refusal is most clear in the Chambers’ conclusion regarding the mental defect defense, where it stated that expert witnesses “did not identify any mental disease or disorder in Dominic Ongwen during the period of the charges…”[123] The Chambers’ decision to only look at whether Ongwen demonstrated signs or symptoms of mental illness during the period of the charges underscores that it was largely dismissing Ongwen’s childhood as a mitigating factor.
The point at which the Chamber appears to have begun considering Ongwen’s background and tragic history was at sentencing. Given the ability to sentence Ongwen to life imprisonment, the Chamber declined to exercise that option, stating:
The Chamber is confronted in the present case with a unique situation of a perpetrator who willfully and lucidly brought tremendous suffering upon his victims, but who himself had previously endured grave suffering at the hands of the group of which he later became a prominent member and leader. The Chamber was greatly impressed by the account given by Dominic Ongwen at the hearing on sentence about the events to which he was subjected upon his abduction when he was only 9 years old…
The circumstances of Dominic Ongwen’s childhood are indeed compelling, and the Chamber cannot disregard them in the determination of whether life imprisonment represents the just sentence in the present case… By no means does Dominic Ongwen’s personal background overshadow his culpable conduct and the suffering of the victims – the Chamber wishes to emphasise this point again in the strongest terms. Nevertheless, the specificity of his situation cannot be put aside in deciding whether he must be sentenced to life imprisonment for his crimes.[124]
The Chamber sentenced Ongwen to twenty-five years imprisonment, and, as previously noted, Judge Raul C. Pangalangan filed a Partially Dissenting Opinion stating that he believed a thirty-year sentence was deserved.[125]
The choice to consider Ongwen’s history as a child soldier at sentencing, when viewed alongside the Chamber’s dismissal of claims regarding a 31(a) defense, creates a muddled view of the decision. During his trial, Ongwen’s abduction and childhood were ignored mainly due to the egregious nature of his conduct. Meanwhile, during sentencing, this history apparently played a significant role in the Chamber’s choice not to pursue the maximum allowed. It seems counterintuitive not to consider it more holistically during all trial phases.
From a practical perspective, the Court’s dismissal of the Article 31(a) defense regarding mental disease or defect formed due to Ongwen’s forced abduction[126] appears to have occurred primarily because of failures committed by the Defense’s expert witnesses. Yet, despite errors by the two physicians in question, the Chamber evidently saw past those errors during sentencing.
A question that arises is whether, if during its contemplation of an appropriate sentence, the Chamber was moved to consider the way that Ongwen’s abduction influenced his actions, why did it not also consider his childhood when considering his legal culpability and his ability to form the necessary mens rea for the crimes committed? If the expert testimony dismissed by the Chamber was insufficient to affect the decision on the charges, arguably, it had no place playing a role in the sentencing.
6. Conclusion
Reflecting upon the issues raised in Ongwen, this paper proposes that—when dealing with former child soldiers who are both victims and perpetrators—courts should consider crimes directly involved with warfare more holistically than crimes relating to SGBV. In effect, courts should bifurcate such cases and assess liability and defenses through a different lens based on the charges.
The Ongwen court started down this path when it decided that “the charges [could] be sub-divided into three main categories.”[127] The Chamber arguably recognized that the types of crimes committed in military attacks against the four IDP camps were different than the charges concerning SGBV directly perpetrated by Ongwen and other SGBV for which he did not directly perpetuate but for which he was still responsible.[128]
Drawing lines between military-related crimes and SGBV would also allow prosecutors to better navigate the troubled waters of cases like Ongwen’s, where a zero-sum[129] game of “child soldier” or “not child soldier” leads both prosecution and defense to ignore many subtleties that should be considered in the general pursuit of justice.[130] Such binaries are disruptive. If the Court is to cede that victim turned perpetrator is forever a victim, then those demanding justice against the new perpetrator shall never have their day. Meanwhile, if no consideration can be made of a childhood filled with violence and manipulation, then there is no justice for the child kidnapped against their will and coerced into becoming a killing machine.[131] Neither result should be acceptable.
Ongwen’s case includes details that support a proposition regarding the differentiation between military criminal acts and sexual/gender-based criminal acts. While it is incontrovertible that Ongwen learned extreme violence in warfare through his childhood indoctrination, his attitudes towards sexual relations appear less influenced.
Ongwen’s understanding of this realm is most clearly demonstrated through the juxtaposition of his treatment of different groups of women. For example, he “‘permitted’ several of his concubines to escape with his many children,” and one of his former “wives” was among those calling for him to be granted amnesty.[132] That wife, Florence Ayot, stated that Ongwen loved her son like his own children by other wives, was never “quarrelsome,” and had lived happily together.[133] However, this depiction of an apparently kind husband and father is in stark contrast to the testimony of those like P-227, one of Ongwen’s eight direct victims, who explained in graphic detail Ongwen’s vaginal and anal rape of her at gunpoint.[134]
Such disparate behavior suggests that when considering SGBV, Ongwen may have understood right from wrong as well as the desires and wants of those sexually victimized at his hands. This argument was supported by the testimony of the Prosecution’s expert witness, Dr. Gillian Clare Mezey, who noted that the evidence she examined demonstrated Ongwen generally had a sense of “moral awareness or an awareness of the difference between right and wrong.”[135]
This disputes the idea that his childhood abduction must be taken into consideration when deciding on culpability for actions related to SGBV. The psychological processes that turned the child Ongwen into a ruthless and violent military commander—one who may have truly believed that his forms of warfare were legitimate—may not have completely shattered his understanding of normal sexual and romantic relations. Thus, at some level, he may have known that at least those actions were wrong and should be culpable.
However, the idea that a victim-perpetrator’s responsibility for SGBV cannot be mitigated by their childhood abduction does not mean that their responsibility for other types of crimes cannot be mitigated. This fact is particularly applicable when it comes to situations like Ongwen’s, where war-related crimes are closely linked to the circumstances of his abduction and the types of acts he was forced to commit as a child.
Treating SGBV charges in cases like Ongwen’s differently from those related to military attacks would serve three purposes. First, by creating a differentiation, those whose backgrounds may necessitate that courts consider their history as victim-perpetrators could still be held strictly responsible for SGBV while having military-related crimes viewed through a lens that takes into consideration the military indoctrination they began at young ages. Second, by placing SGBV in a category where even mental defect and childhood brainwashing provide no defense, it would reinforce the fact that SGBV needs to be considered among the most heinous taboos in armed conflict, ensuring that future cases are presented with clear precedent condemning SGBV and demonstrating the ICC’s dedication to taking SGBV seriously. Lastly, with two distinct paths, prosecutors could demonstrate an unwavering commitment to getting justice for victims of SGBV while also showing compassion for defendants who were, at one point, victims.
Admittedly, this framework—where Ongwen would effectively face two trials—could have resulted in a total Article 31(a) defense on warfare-related crimes while still resulting in life imprisonment for SGBV crimes. On its face, the fact that a harsher sentence could occur may appear as a miscarriage of justice. However, it would more holistically evaluate a defendant for culpability. Such a result would help future courts avoid the pitfalls of having to choose absolutely whether to take into consideration a victim-perpetrator’s history as a child soldier. It would promote justice, not just for the obvious victims, but also for the child who was manipulated, threatened, and coerced into committing horrible crimes at the behest of others. Effectively, in a situation too complex for a simplistic approach, it would use two sets of properly calibrated scales instead of a single one through which a zero-sum calculation of guilt is necessary.
*Zej Moczydłowski
J.D. Candidate, Washington University School of Law (WashU Law); Sergeant First Class and Special Operations Combat Medic, U.S. Army Reserves. The views expressed are those of the author and do not reflect the official policy or position of the U.S. Army, U.S. Special Operations Command, U.S. Department of Defense, or the U.S. Government.
[1] The phrases “sexual and gender-based violence” (SGBV), “sexual and gender-based crimes” (SGBC), and “gender-based violence” (GBV) are all used, somewhat interchangeably, to reference the types of acts committed by Dominic Ongwen, the LRA, and similar individuals and groups. First, this paper uses SGBV rather than SGBC because, in a conversation regarding charges, calling something a crime at the outset may inadvertently cast an assumption of guilt upon the accused. Second, while the ICC Office of the Prosecutor is correct when it calls for a “gender perspective,” the exclusion of sexuality in “GBV” dismisses the way that such violence is often rooted in carnal desires pursued through violent, illegal, and non-consensual acts. When illegal conduct is rooted in the pursuit of sexual dominance and/or gratification, minimizing that particular aspect of the acts is to arguably—and incorrectly—ignore part of the motivation for their commission. See Office of the Prosecutor, Policy on Gender-Based Crimes, ICC-OTP (Dec. 2023), https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf (“Gender perspective refers to the understanding of differences in status, power, roles, and needs between men and women, including/and LGBTQI+ persons, and how gender inequality and discrimination on the basis of sex, gender identity or sexual orientation may impact people’s opportunities, interactions, and experiences in a given context. This understanding includes an awareness of how gender-related norms can vary within and across contexts”).
[2] Fact Sheet Counter Lord’s Resistance Army (C-LRA), ReliefWeb (Sept. 16, 2016), https://reliefweb.int/report/uganda/fact-sheet-counter-lord-s-resistance-army-c-lra.
[3] Prosecutor v. Kony, Case No. ICC-02/04-01/05, Document Containing the Charges, ¶¶ 3–4 (Jan. 19, 2024).
[4] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A, Appeals Judgment, ¶ 51 (Dec. 15, 2022).
[5] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 12 (Feb. 4, 2021).
[6] Id. at ¶¶ 13–14.
[7] Julia Brown, When Children are Trained to Kill: A Look at the Victim-Perpetrator Debate in the United States and Uganda, 38 Ariz. J. Int’l & Comp. Law 375, 376 (2022).
[8] Id. at ¶¶ 26–29.
[9] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Public Redacted Version of Corrected Version of Defence Closing Brief, ¶ 569 (Mar. 13, 2020).
[10] See Prosecutor v. Kony, Case No. ICC-02/04-01/05, Document Containing the Charges, ¶¶ 88–91 (Jan. 19, 2024).
[11] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶¶ 1014–16 (Feb. 4, 2021).
[12] Id. at ¶ 38.
[13] Id. at ¶ 15.
[14] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Report of the Registry on the Voluntary Surrender of Dominic Ongwen and His Transfer to the Court, ¶¶ 1–3 (Jan. 22, 2015).
[15] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 15 (Feb. 4, 2021).
[16] Charles A. Taku & Beth S. Lyons, The Ongwen Judgments: A Stain on International Justice, J. Int’l Crim. L. 1, 1–2 (2024) [hereinafter Taku & Lyons].
[17] See Prosecutor v. Ongwen, supra note 15, at ¶ 16.
[18] Id. at ¶ 32.
[19] Taku & Lyons, supra note 16, at 2.
[20]See Prosecutor v. Ongwen, supra note 15 at ¶ 10.
[21] Id. at ¶ 34.
[22] Id. at ¶ 35.
[23] Id. at ¶ 36.
[24] Counts 69–70 related to the conscription and use of children under the age of fifteen years and their use in armed hostilities but are also not relevant to this paper.
[25] Marina Kumskova, Invisible Crimes Against Humanity of Gender Persecution: Taking a Feminist Lens to the ICC’s Ntaganda and Ongwen Cases, 57 Tex. Int’l L.J. 239, 241 (2002).
[26] Q&A: The LRA Commander Dominic Ongwen and the ICC, Hum. Rts. Watch (Jan. 27, 2021), https://www.hrw.org/news/2021/01/27/qa-lra-commander-dominic-ongwen-and-icc [hereinafter Human Rights Watch].
[27] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Public Redacted Version of Corrected Version of Defence Closing Brief, ¶ B(i) (Mar. 13, 2020).
[28] Id.
[29] Taku & Lyons, supra note 16, at 4.
[30] Prosecutor v. Kony, Case No. ICC-02/04-01/05, Document Containing the Charges, ¶ 11 (Jan. 19, 2024).
[31] In session, the 16th Annual International Humanitarian Law Roundtable considered this issue at length. Ultimately, all parties in the debate appeared to agree that any attempt at an affirmative defense due to mental duress would have failed because, by the time of his surrender, Ongwen no longer faced the proverbial “gun to the head” required to demonstrate a fear of imminent retaliation against an individual who disobeyed their commander.
[32] Rome Statute of the International Criminal Court art. 31(a), July 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute].
[33] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Public Redacted Version of Corrected Version of Defence Closing Brief, ¶ 546 (Mar. 13, 2020).
[34] Id. at ¶ 537.
[35] Id. at ¶ 522.
[36] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A, Appeals Judgment, ¶ 1119 (Dec. 15, 2022).
[37] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 2527 (Feb. 4, 2021).
[38] Id. at ¶ 2531.
[39] Id. at ¶ 2527.
[40] Id. at ¶ 2533.
[41] Id. at ¶ 2545.
[42] Id. at ¶ 3116.
[43] Id.
[44] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Sentence, ¶ 386 (May 6, 2021).
[45] Id. at ¶ 388.
[46] Id. at ¶ b.
[47] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A, Partly Dissenting Opinion of Judge Raul C. Pangalangan, ¶¶ 16–19 (May 6, 2021).
[48] Id. at ¶ 15.
[49] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A, Appeals Judgment, ¶ 1277 (Dec. 15, 2022).
[50] Id.
[51] Id. at ¶¶ 1685–87.
[52] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A2, Judgment on the Appeal of Mr. Dominic Ongwen Against the Decision of Trial Chamber IX of 6 May 2021 Entitled “Sentence”, ¶ 373 (Dec. 15, 2022), (Judge Ibáñez Carranza partly dissented on one ground of appeal—the allegation of double-counting the factor of a multiplicity of victims—and would have reversed the twenty-five-year sentence and remanded to the Trial Chamber for it to determine a new sentence).
[53] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Reparations Order, ¶ 795 (Feb. 24, 2024).
[54] Jonathan Gottschall, Explaining Wartime Rape, 41 J. Sex Rsch. 129, 130 (2004).
[55] Nicola Henry, Theorizing Wartime Rape: Deconstructing Gender, Sexuality, and Violence, 30 Gender and Soc’y 45, 45 (2016).
[56] Julia Tétrault-Provencher, Replicating the Definition of ‘Forced Pregnancy’ from the Rome Statute in a Future Convention on Crimes Against Humanity: A Tough Pill to Swallow, 33 Hastings Women’s L.J. 105, 107 (2022) [hereinafter Tétrault-Provencher].
[57] Jocelyn Campanaro, Women, War, and International Law: The Historical Treatment of Gender-Based War Crimes, 89 Geo. L.J. 2557, 2562 (2001) [hereinafter Campanaro].
[58] Janet Halley, Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law, 30 Mich. J. Int’l L. 1, 43–44 (2008).
[59] Id. at 44.
[60] See Campanaro, supra note 57, at 2564.
[61] Kelly D. Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 288, 288 (2003) [hereinafter Askin].
[62] Dianne Luping, Prosecuting Sexual and Gender-Based Crimes Before Internationalized Criminal Courts: Investigation and Prosecution of Sexual and Gender-Based Crimes Before the International Criminal Court, 17 Am. U.J. Gender Soc. Pol’y & L. 431, 440 (2009) [hereinafter Luping].
[63] Id. at 445.
[64] Id.
[65] See Askin, supra note 61, at 317.
[66] Prosecutor v. Gagovic, Case No. IT-96-23-1, Indictment (Jun. 26, 1998).
[67] See Luping, supra note 62, at 446.
[68] Id.
[69] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement (Sep. 2, 1998).
[70] See Askin, supra note 61, at 318.
[71] Tanja Altunjan, Sexual Violence in International Criminal Law: The International Criminal Court and Sexual Violence: Between Aspirations and Reality, 22 German L.J. 878, 878 (2021) [hereinafter Altunjan].
[72] Id. at 881.
[73] Id. at 878.
[74] Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06, Judgment (Jul. 8, 2019).
[75] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment (Feb. 4, 2021).
[76] See Altunjan, supra note 71, at 884.
[77] Rosemary Grey, Gender and Judging at the International Criminal Court: Lessons from “Feminist Judgment Projects”, 34 Leiden J. of INT’L L. 247, 252 (2021) [hereinafter Grey].
[78] See Office of the Prosecutor, Policy on Gender-Based Crimes, ICC-OTP (Dec. 2023), https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf.
[79] Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Judgment (Mar. 14, 2012).
[80] See Grey, supra note 77, at 258.
[81] Id.
[82] Ally McQueen, Falling Through the Gap: The Culpability of Child Soldiers Under International Criminal Law, 94 Notre Dame L. Rev. Reflection 100, 103 (2019) [hereinafter McQueen].
[83] Eben Kaplan, Child Soldiers Around the World, Council on Foreign Rels. (Dec. 2, 2005), https://www.cfr.org/backgrounder/child-soldiers-around-world [hereinafter Kaplan].
[84] See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 77(2), June 8, 1977, 1125 U.N.T.S. 3. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 4(2)(c), June 8, 1977, 1125 U.N.T.S. 609.
[85] Cape Town Principles, U.N. Int’l Child.’s Emergency Fund (Apr. 30, 1997).
[86] G.A. Res. 54/263 (Mar. 16, 2001).
[87] See McQueen, supra note 82, at 115.
[88] U.N. Secretary General, Report of the Secretary General on the Establishment of a Special Court for Sierra Leone, U.N. Doc. 2/2000/915 (Oct. 4, 2000). See also, McQueen, supra note 83 (noting Secretary General Annan would go on to state that the court “would not necessarily exclude persons of young age from [its] jurisdiction.” However, the Prosecutor for the Court, David Crane, “quickly made it very clear that he would never prosecute anyone under the age of eighteen”).
[89] See McQueen, supra note 82, at 124.
[90] Id.
[91] Id.
[92] Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of the Justice System, U.N. Off. on Drugs & Crime (2017).
[93] Omar Khadr Charge Sheet, United States v. Khadr, 717 F. Supp. 2d 1215 (U.S.C.M.C.R. 2007), https://www.mc.mil/Portals/0/pdfs/Khadr/Khadr%20(AE001).pdf.
[94] Jennifer Turner, Pentagon Admits Number of Guantánamo’s Children is Higher than Originally Disclosed, ACLU (Nov. 17, 2008), https://www.aclu.org/news/national-security/pentagon-admits-number-guantanamos-children-higher-originally.
[95] Khadr’s case shows how the U.S. approach to child combatants or soldiers differs from international consensus because the U.S. appears to use the age of sixteen as the line of demarcation between a child and an adult for these purposes. Other juvenile combatants under the age of sixteen captured during U.S. operations in the same time frame were sent to Camp Iguana, accommodated separately from adults, and received not only schooling but also group therapy sessions. “The only reason for the difference between their and Khadr’s treatment . . . is that Khadr was only transferred to Guantanamo after his sixteenth birthday, despite the fact that he was originally detained when he was fifteen years of age.” See also Matthew Happold, Child Soldiers: Victims or Perpetrators?, 29 U. La Verne L. Rev. 56, 86 (2008).
[96] See Kaplan, supra note 83.
[97] See McQueen, supra note 82, at 101.
[98] Human Rights Watch, supra note 27.
[99] U.S. v. Alexander, 471 F.2d 923 (D.C Cir. 1973) (Bazelon, C.J., dissenting).
[100] Richard Delgado, Rotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation, 3 Minn. J.L. & Inequality 9, 20–21 (1985). See also U.S. v. Alexander, 471 F.2d 923, 961 (D.C Cir. 1973) (Bazelon, C.J., dissenting).
[101] Taku & Lyons, supra note 16, at 9.
[102] Id. at 10.
[103] Rome Statute, supra note 32, art. 21(2) (stating that the Court may—not must—”principles and rules of law as interpreted in its previous decisions”).
[104] Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Judgment (Mar. 14, 2012).
[105] Layal Issa, Avoiding the Third Tragedy: Evaluating Criminal Responsibility of Child Soldiers Under International Law, 34 Temp. Int’l & Comp. L.J. 61, 73–74 (2020).
[106] Mark A. Drumbl, Victims Who Victimise, 4 London Rev. Int’l L. 217, 242 (2016) [hereinafter Drumbl].
[107] Raphael L. A. Pangalangan, Dominic Ongwen and the Rotten Social Background Defense: The Criminal Culpability of Child Soldiers Turned War Criminals, 33 Am. U. Int’l L. Rev. 605, 619–20 (2018).
[108] Luping, supra note 62, at 445.
[109] See Grey, supra note 77, at 260.
[110] Id. at 261.
[111] Id.
[112] Id. at 263.
[113] See Tétrault-Provencher, supra note 57, at 114.
[114] Rome Statute, supra note 32, art. 7(1)(g).
[115] Id. at art. 7(2)(f).
[116] See generally Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 12 (Feb. 4, 2021).
[117] See Tétrault-Provencher, supra note 57, at 132.
[118] Id. at 133.
[119] Id.
[120] Meaning of ‘Confine’ in English, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/confine.
[121] Mark A. Drumbl, A Former Child Soldier Prosecuted at the International Criminal Court, OUP Blog (Sep. 26, 2016), https://blog.oup.com/2016/09/child-soldier-prosecuted-icc-law/.
[122] Taku & Lyons, supra note 16, at 3.
[123] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 2580 (Feb. 4, 2021).
[124] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Sentence, ¶¶ 388–89 (May 6, 2021).
[125] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A, Partly Dissenting Opinion of Judge Raul C. Pangalangan, ¶¶ 16–19 (May 6, 2021).
[126] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Public Redacted Version of Corrected Version of Defence Closing Brief, ¶ 536 (Mar. 13, 2020).
[127] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 33 (Feb. 4, 2021).
[128] Id.
[129] Drumbl, supra note 106.
[130] Id. at 242 (“If the defence presents Ongwen only as an innocent child, and the prosecution responds by redlining the fact that Ongwen had entered the LRA as a child and came of age in such a dismal setting, then the result will be to embed the binaries even further”).
[131] See Drumbl, supra note 106, at 217.
[132] Id. at 238.
[133] Dominic Ongwen: From Child Abductee to LRA Rebel Commander, BBC (May 6, 2021), https://www.bbc.com/news/world-africa-30709581.
[134] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Confirmation of Charges (Transcript), 41–42 (Jan. 1, 2016), https://www.icc-cpi.int/sites/default/files/Transcripts/CR2016_02436.PDF.
[135] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Hearing (Transcript), 47 (Mar. 19, 2018), https://www.icc-cpi.int/sites/default/files/Transcripts/CR2018_04200.PDF.
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Apr 11, 2025 | Online Scholarship, Perspectives
*Piotr Filip Parkita
I. Potential for colonizing Mars
In May 2024, Małgorzata Polkowska published an interesting article about projects for colonizing Mars and other celestial bodies. Special attention should be given to the legal considerations she offers within the framework of contemporary space law doctrine. The international community currently lacks adequately constructed legal regulations that would comprehensively address this subject. Denis Safronov, a Russian researcher, highlighted how the Outer Space Treaty of 1967 (OST) fails to account for the legal challenges arising from the exploration of space. There is indeed a legal gap in this area. The laws enacted in the last century are not adequate to address the challenges of modern industry and the ambitions for space development. The international community should take steps to regulate this issue.
The colonization of Mars is not a distant concept; it should be considered realistically. Mars possesses numerous resources that might facilitate human colonization. The existence of water ice is essential for supplying drinking water as well as agricultural purposes. Additionally, water can be separated into hydrogen and oxygen. These elements are vital for rocket fuel and breathing. Polkowska, for example, cited the ongoing Artemis program, which is an exciting step in human’s journey to Mars (this program is being implemented by NASA, ESA, and JAXA, among others). Artemis consists of several key elements that are expected to play a crucial role in the success of the mission, including the expansion of the Gateway station and the establishment of the Artemis Base Camp on the lunar surface.
Private enterprises are intimately involved in this domain: Elon Musk, the CEO of SpaceX, projected in 2022 that his company’s inaugural manned mission to Mars might commence as soon as 2029. These plans presently seem rather ambitious. However, it is evident that the concept of colonization continues to captivate the imagination, presenting an escalating array of challenges to humanity. One of these challenges is the accurate legal classification of such activities, which necessitates a robust regulatory framework specifically addressing these ventures. Abu Rayhan noted that while “significant technological, health, ethical, and legal hurdles remain, ongoing advancements and international collaboration could make human settlement of other planets a reality in the coming decades.”
II. Problems arising from the Outer Space Treaty
Given the accelerating advancement of entities within the space industry, including those collaborating with governmental agencies, it is essential to formulate appropriate legal frameworks to facilitate the objective categorization of these activities. These entities are subject to the jurisdiction of multiple nations, which complicates the process of achieving legal harmonization. The legal regime governing the potential colonization of Mars is regulated by the OST. Other legal acts related to outer space include the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, also referred to as the Rescue Agreement. These instruments are intended to ensure the peaceful exploration and use of outer space.
The OST is a legal instrument adopted in 1967, with 115 states as its parties. It failed to consider the issues that would arise from rapid technological advancement and the increasing presence of activities such as space tourism. Despite the fact that Mars colonization is a plausible concept that could become a reality in the near future (within the next decades or so), I refer to it as the “tomorrow for which we are not prepared.” The OST, in its current form, is not equipped to regulate actions supporting the concept of Mars colonization, which is increasingly emerging within the international community. A thorough analysis of the articles of this document (I, II, VI, VIII, IX) is necessary.
As John Clayton rightly notes, nations can withdraw from the OST with a one-year notice period, after which they are no longer constrained by the provisions of this legal instrument. This would allow states to make claims over certain areas of outer space and use them according to their national interests without restriction. Such an option appears particularly advantageous for countries with superior technological and budgetary resources, especially P5 countries on the UN Security Council. Opposition to their actions would likely be ineffective, given that the strategic advantages of space exploitation would surpass any temporary negative effects on these countries’ international relations. The P5 countries vested with veto power on the UN Security Council are China, France, Russia, the United Kingdom, and the United States of America — leading players in the space race with equipment and technology far more advanced than those of other treaty members.
Thus, it is necessary to develop appropriate solutions that can secure the interests of smaller nations with less advanced technology in the future, allowing them to participate on more even footing in space colonization.
III. The premises undergirding colonization in the context of the Outer Space Treaty
Article I of the OST establishes a fundamental principle for the exploration and use of outer space: all such activities “shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” This principle implies that any benefits derived from activities in outer space, including those associated with colonization or the establishment of human settlements on celestial bodies like Mars, must be shared equitably. The concept of “the province of all mankind” emphasizes that outer space is a domain where no state or entity can claim exclusive rights to the fruits of exploration, thus framing space as a collective heritage and resource.
This principle introduces a critical constraint: colonization must be universally advantageous, accessible to all countries, and cannot be exploited solely for the individual benefit of the state or private entity that initiates such efforts. This stipulation directly opposes the historical model of Earth-based colonization, where the colonizing power often derived unilateral benefits, primarily through the extraction of natural resources and the establishment of exclusive economic zones. Any space colonization must adhere to a model that prioritizes shared benefits, consistent with the spirit of global cooperation embedded in the OST.
From this perspective, the logical approach to space colonization would be through collaborative missions involving multiple countries, all of which are parties to the OST. Such joint endeavors would help ensure that the outcomes of space exploration and resource use align with the principle of the common good. Collaborative missions would facilitate the sharing of technology, scientific knowledge, and resources, thereby minimizing the risk of any single state monopolizing the advantages of space colonization.
However, the practical realization of these principles presents challenges, especially when considering the concept of terra nullius. While Mars qualifies as terra nullius (nobody’s land) under international law, the limited and non-renewable nature of its resources could eventually lead to competition and exclusive claims by states or private entities that undertake colonization efforts.
Furthermore, the historical context of Earth-based colonization demonstrates a pattern of competitive exploitation of natural resources and territory. Although space colonization differs fundamentally — given the absence of indigenous human populations and the unique legal status of outer space — the risk remains that individual states may seek to secure preferential, or worse yet, exclusive access to Martian resources in the long term. This could manifest through the construction of infrastructure, the establishment of research stations, or through long-term resource extraction activities. Such actions, if not carefully regulated, would be at odds with the cooperative framework required by Article I of the OST.
Therefore, any approach to space colonization must not only focus on technical feasibility and scientific advancement but also address these legal and ethical considerations. It must balance the interests of pioneering states with those of the broader international community, maintaining compliance with the OST’s overarching goal of ensuring that space remains a domain where benefits are equitably shared and where activities are conducted for the collective good of humanity.
A possible solution would be the introduction of a separate legal act defining the scope and possibility of claims, similar to the approach taken in the case of Antarctica, where such arrangements were adopted for a specific period. Initially, potential Martian colonies can be similar in concept to polar stations, such as the President Eduardo Frei Montalva Base, along with the inhabited outpost Villa Las Estrellas, which the Chilean government considers as part of the commune Antártica (“commune” being the smallest administrative subdivision in Chile), and thus, de facto, a part of Chilean territory. It should be noted, however, that in the case of the Antarctic Treaty, no prohibition of claims was included. In fact, this treaty somewhat “suspended in time” the claims that had already been made, for the duration of the agreement.
Particularly important is Article II of the OST: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” This article is arguably the most problematic in this regard. A colony is a territory controlled by an independent country, but considered part of that country for relations with other countries. A colony is a territory under the jurisdiction of an independent state that maintains a relationship with that state. Puerto Rico offers a contemporary example, as it holds the status of an unincorporated territory and serves as a dependent territory of the United States.
Colonization of Mars, by its inherent definition, would inherently contradict the stipulations of Article II of the OST. Even if the colony were to lack sovereignty, or if a country were to establish a Martian colony without asserting sovereignty or national jurisdiction, it would be difficult to argue that this would not meet the threshold of “use” or “occupation” per the treaty. The establishment of a permanent or semi-permanent human settlement on Martian soil would inevitably involve the utilization of land, resources, and potentially infrastructure development, thus creating a conflict with the Article’s text.
Theoretically, establishing and maintaining a colony does not necessarily imply the appropriation of a given territory by a single state — one can look at the issue of oil platforms on the high seas, which are not subject to appropriation according to the United Nations Convention on the Law of the Sea. It is only the activities of a state concerning such a colony that may raise objections, for instance, if a state were to declare a Martian colony as its extraterrestrial territory.
While a colony may not constitute a direct claim of sovereignty by a nation-state, its presence might still be seen as an indirect exercise of control or jurisdiction, thus conflicting with the non-appropriation principle enshrined in the OST. The ambiguity in the phrase “by any other means” further complicates this interpretation, as colonization could encompass a wide range of activities beyond traditional state claims, potentially including private or corporate initiatives that result in sustained presence or control over specific areas on Mars. This raises significant legal questions regarding the compatibility of a Martian colony with the OST’s intent to preserve outer space as a domain free from national appropriation and exploitation.
According to Article VI of the OST, “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.” States are further responsible for the activities of private entities under their jurisdiction, meaning that private colonization cannot serve as a viable solution.
This legal framework implies that even if a private company or entity attempts to establish a colony on Mars, the state under whose jurisdiction that entity operates would still be liable for ensuring that their activities adhere to international space law. Thus, a state’s obligations under the OST cannot be circumvented through privatization or the delegation of space activities to non-state actors. The responsibility extends to supervising and authorizing the activities of private actors to ensure that their actions do not amount to prohibited appropriation or occupation of outer space, thereby maintaining compliance with the non-appropriation principle of Article II.
It is additionally essential to refer to Article VIII: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth…” This Article outlines the principle of exercising jurisdiction over an object placed (constructed) on a celestial body, such as Mars. A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, while it is in outer space or on a celestial body, as well as ownership of objects that have been constructed on a celestial body. This may refer to constructions (objects, buildings) built on a celestial body that are significant for the colony.
Moreover, a State Party to the Treaty retains jurisdiction and control over the personnel aboard an object launched into outer space when it is in outer space or on a celestial body. This raises the issue of colonists and their legal status. The problem arises when colonists come from different countries with varying legal systems. It is undeniable that people living together, tasked with building the foundations of a Martian society, may, for instance, commit certain types of crimes or find themselves in civil law conflicts. Transporting such individuals back to the Earth solely for conducting a trial would be impossible. Given the differences in legal systems, it would be worth considering the establishment of a common Martian legal system and laying the groundwork for a jurisdictional apparatus that allows for the swift and efficient resolution of legal disputes among colonists. The considerations regarding the status of a colonist can be narrowed to three main points.
First, the regulation of the status of colonists based on Article V of the OST involves adopting the definition of a colonist as an “envoy of mankind” (similar to astronauts), thereby obligating colonists from different State Parties to provide all possible assistance to colonists from other State Parties.
Second, developing a separate regulation of the status of colonists, by creating an individual legal definition would allow for the introduction of a universally accepted law intended to apply on Mars, effectively making the colonists “citizens of Mars,” subject to those planetary laws. However, this would require the creation of a quasi-state apparatus, entirely under the authority of the United Nations. This apparatus would be responsible for overseeing the administration of laws. Additionally, it would need to foster cooperation among various State Parties to ensure that the legal system is equitable and respects the rights of all colonists, regardless of their country of origin.
Third, the complete lack of regulation on this matter creates a significant legal gap, leaving important questions unresolved. This approach may be seen as appropriate, as it allows for flexibility in adapting legal frameworks to the evolving nature of Mars colonization. Defining the status of colonists too rigidly could be problematic, given the diversity of legal systems involved and the complex, shifting circumstances of space exploration. By leaving a legal gap, the international community can avoid prematurely imposing restrictive laws that might not align with future developments. Additionally, it helps preserve the sovereignty of individual states and protects against overly centralized definitions that could lead to conflicts. This open-ended approach allows for a gradual and more inclusive development of a legal system as the colonization process progresses.
The OST’s limitations also arise from Article IX, which underscores the obligations of states in the exploration and use of outer space. According to Article IX, states must adhere to the principles of cooperation and mutual assistance, ensuring that their activities are carried out with “due regard to the corresponding interests of all other States Parties to the Treaty.” This provision implies a duty to consider the interests and rights of other states during space activities, including on celestial bodies like Mars.
Moreover, Article IX emphasizes the necessity of avoiding “harmful contamination” of outer space and preventing “adverse changes in the environment of the Earth” that could result from the introduction of extraterrestrial matter. States are thus required to take measures to avoid activities that might harm the space environment or impact the Earth’s ecosystem. This provision suggests that any activity, including colonization or extensive use of Martian resources, must be conducted in a manner that does not jeopardize the integrity of the Martian environment or lead to negative consequences for the Earth.
Additionally, this provision mandates that states engage in “appropriate international consultations” if they believe that their activities, or those of their nationals, could cause “potentially harmful interference” with the activities of other states. This requirement further complicates the prospect of private or unilateral colonization efforts, as it requires transparency and collaboration with the international community to avoid conflicts or interference with the peaceful exploration and use of outer space by other states. If a state believes that another state’s planned activities may be harmful, that state has the right to request consultations, ensuring that potentially disruptive actions are subject to international scrutiny before proceeding.
These obligations, derived from Article IX, reinforce the notion that space activities must prioritize cooperation, environmental preservation, and the interests of the broader international community, rendering unilateral or private colonization efforts legally and practically unrealistic under the framework of the OST.
IV. Conclusion
The conditions set forth in the OST effectively constrain any potential concept for colonizing Mars. These constraints arise from the existing framework of international law, which places significant limitations on the ways states and private entities can engage in activities on celestial bodies. While the current legal framework aims to preserve outer space as a common heritage of humanity, it also presents obstacles to the practical realization of long-term human colonization of Mars.
Given the rapid advances in space exploration and technology, a reassessment of the OST may be necessary. The changing landscape of space activities, especially the prospect of human colonization beyond the Earth, suggests that the current legal provisions may not adequately address the complexities and challenges posed by such endeavors. There is a growing need to develop new and tailored frameworks for regulating the colonization of Mars while maintaining the principles of international cooperation and equity that underpin the OST.
The international community should engage in a comprehensive dialogue to establish new legal and regulatory frameworks for the colonization of Mars. These frameworks should be designed with a focus on sustainable development, ensuring that the exploitation of Martian resources does not lead to environmental degradation, either on Mars or through potentially adverse impacts on Earth. Additionally, any revised legal regime should safeguard the human rights of the “colonizers,” ensuring that their well-being and safety are protected under international standards.
These regulations should aim to balance the interests of pioneering states with those of the broader international community. This includes ensuring equitable access to resources and opportunities in space, as well as protecting the Martian environment from harmful contamination. Such measures would require clear rules regarding resource extraction, waste management, and ecological preservation, as well as mechanisms for resolving disputes that may arise from conflicting claims over resources or territory on Mars.
The revision of the OST and the creation of new legal frameworks should aim to align with the core principles of the treaty, while adapting to the new realities of space exploration. By fostering international collaboration and focusing on the principles of sustainable and responsible space exploration, the global community can work towards a future where Mars colonization, if undertaken, is conducted in a manner that benefits all of humanity and respects the inherent value of the Martian environment. This process would ensure that any future settlements on Mars do not repeat the mistakes of past terrestrial colonization, but rather, set a new standard for ethical and sustainable human presence beyond the Earth.
* Piotr Filip Parkita is a law student at the Faculty of Law and Administration of the University of Lodz (Poland).
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Apr 11, 2025 | Online Scholarship, Perspectives
*Muhammad Siddique Ali Pirzada
I. Introduction
The nations comprising the African Union (AU) jointly affirmed their endorsement for the Protocol on Investment (the Protocol), an integral part of the broader agreement that underpins the African Continental Free Trade Area (AfCFTA). The Protocol marks a significant shift in Africa’s investment landscape by terminating intra-African BITs and adopting a state-centric framework that fundamentally reshapes the continent’s approach to investment regulation. The Protocol, as of January 2023, has been made publicly accessible for examination and review. As prescribed in Article 48, the Protocol is presently available for ratification, and accession by the parties to the AfCFTA. As per Article 23 (2), “The Protocols on Investment, Intellectual Property Rights, Competition Policy and any other Instrument within the scope of this Agreement deemed necessary, shall enter into force thirty (30) days after the deposit of the twenty second (22nd) instrument of ratification.” Though the specific status of ratification is not publicly disclosed, it is apparent that the requisite procedures are diligently progressing.
This piece endeavors to elucidate three pivotal ramifications that are likely to arise from the imminent commencement of the Protocol: (a) the abrogation of the majority of intra-African bilateral investment treaties (BITs); (b) diminished protections for investors and the imposition of new duties on them, alongside an effort to establish extraterritorial liability for their actions; and (c) the strong likelihood that the Protocol’s stance on dispute resolution will exclude provisions for Investor-State Dispute Settlement (ISDS).
Finally, this piece adopts a more panoramic view, highlighting two primary, overarching inferences from this unfolding development. First, the Protocol’s tangible influence is likely to be limited, given the modest scale of intra-African foreign direct investment (FDI) relative to the far greater influx of extra-African FDI into the continent, which also aligns with the fact that most ISDS claims against African states to date have been initiated by non-African investors. Second, while protections under BITs for AU investors within AU member states are poised to erode, the safeguards granted to non-African investors in these same jurisdictions will remain largely intact.
II. Reevaluating Investor Protections: The Shift in Existing Intra-African Investment Agreements
Presently, African states have entered into a total of 173 intra-African BITs, excluding those previously abrogated or rendered void. Of this corpus, 145 BITs are between AU member states, with approximately a quarter still in effect. In accordance with the provisions of Article 49(1) of the Protocol, all BITs executed between the Parties to the Protocol are unequivocally destined for termination within a period of five years from the Protocol’s promulgation. Consequently, the aforementioned 145 BITs are scheduled for termination within this stipulated five-year period following the Protocol’s effective date. Furthermore, Agreement for the Termination of All Intra-EU Bilateral Investment Treaties serves as a significant parallel to the approach reflected in Article 49(1) of the Protocol, which aligns with the collective strategy adopted by the European Union.
Article 49(1) of the Protocol decrees that, following the cessation of existing BITs, “their survival clauses shall also be extinguished.” This stipulation fundamentally subverts the very essence of sunset clauses, which are traditionally intended to preserve a modicum of stability by ensuring the continued applicability of certain provisions for a defined period post-termination. Such a stipulation is poised to provoke intense debate regarding the extent to which investors have secured inviolable entitlements under international law and whether sovereign nations possess the prerogative to unilaterally rescind these rights once bestowed.
Article 49(3) of the Protocol further enjoins the signatories to exert their utmost endeavors in scrutinizing and amending the regional investment accords forged by the African Regional Economic Communities (RECs) — a body of 12 treaties incorporating investment provisions, including those of RECs recognized by the AU — with the overarching goal of securing seamless “alignment” with the Protocol within a timeframe of five to ten years from its inception.
While certain RECs incorporate provisions that echo those in the Protocol, they appear to fall short of embracing its transformative ethos. The Protocol’s ambiguously worded mandate regarding RECs raises concerns about the potential dilution of investor protections across the continent, fostering uncertainty and indeterminacy, as it provides little clarity on what precisely constitutes “alignment.”
III. The Investment Protocol: Erosion of Investor Protections
Unpacking the Carve-Outs
Article 3(3) of the Protocol meticulously delineates a series of exclusions from its ambit, which include: (a) government procurement activities; (b) subsidies or grants provided by State Parties; (c) fiscal measures relating to taxation; and (d) preferential treatment extended by development finance institutions. Additionally, Article 3(3) unequivocally precludes from the Protocol’s purview investments undertaken by State-Owned Enterprises, alongside those “derived from capital or assets of illegal origin.” Though other International Investment Agreements (IIAs) may also exclude certain areas, the Protocol’s treatment of investments with an “illegal origin” is especially unconventional. Notably, the phrase “illegal origin” remains undefined within the Protocol itself, rendering it ambiguous and subject to a wide range of interpretations. This lack of clarity opens the door to a potentially sweeping and unpredictable scope of exclusion.
Fair and Equitable Treatment Exclusion
In redefining investor protections, Article 17 of the Protocol substitutes the former concept of Fair and Equitable Treatment (FET) with the more circumscribed and judiciously defined standard of Administrative and Judicial Treatment. Through this shift, signatories are obligated to guarantee that investors and their investments are not subjected to any form of treatment amounting to a flagrant miscarriage of justice, a manifest violation of due process, arbitrary caprice, or discriminatory animus on the grounds of gender, race, religion, or other similarly protected characteristics.
Moreover, Article 17(2) unequivocally clarifies that such treatment shall not be construed as synonymous with the former standard of fair and equitable treatment, but rather as a minimum threshold of protection — a safeguard against the egregious maltreatment of investors within both administrative and judicial domains. This recalibration represents a deliberate shift towards a more measured approach to investor protection, emphasizing procedural rectitude and the avoidance of unjust, arbitrary, or unduly prejudicial actions in state-administered legal processes.
This articulation signifies a purposeful divergence from the traditional and expansive contours of FET, as exemplified by Article 2 of the 2006 Egypt-Ethiopia BIT, which unambiguously asserts that capital allocations “shall at all times be accorded fair and equitable treatment” while refraining from imposing any constraints on the breadth of FET’s application. In contrast, the Protocol explicitly invokes the minimum standard of treatment (MST). Notably, Article 17(2) categorically ostracizes FET from its ambit. The pragmatic consequences of this shift may bear a striking resemblance to the way arbitral tribunals have construed FET clauses in treaties that unequivocally tie them to the MST. This is particularly evident in the case of Article 14.6 of the USMCA, where the interpretations of FET provisions have often aligned with the MST framework.
A Hollow Guarantee
Articles 12 to 16 of the Protocol, which enshrine the principles of National Treatment (NT) and Most-Favored Nation (MFN), afford substantially less robust protections than conventional NT and MFN provisions. A case in point is Article 4 of the 2009 Burundi-Kenya BIT. The protections offered by Article 12 and 14 of the Protocol are confined to the post-establishment phase of investments, explicitly excluding the pre-establishment stage from their scope. In Article 12(2), a comprehensive set of factors is outlined to assess “like circumstances,” purposefully shifting the focus from the investor’s interests and the impact on the investment to broader societal concerns and the regulatory framework.
Article 13 of the Protocol provides several exceptions to the NT provision, including measures for public interest, national development, and support for disadvantaged groups or regions. It also allows states to adopt NT exceptions for sectors or regions of strategic importance—though these exceptions are vaguely defined—granting states broad discretion to implement such measures without prior notice to investors.
Moreover, the MFN provision enshrined in Article 14(3) of the Protocol narrows the scope of “treatment” by expressly excluding dispute resolution mechanisms, provisions governing admissibility and jurisdiction, as well as substantive commitments embedded in other IIAs. This restriction significantly curtails the safeguard against discriminatory practices for investors from third-party states, diverging from the broader, more traditional formulations of MFN clauses typically found in other IIAs, which customarily encompass these elements with greater breadth and inclusivity.
Compensation Rights – Scarcity of Redress
Compared to the typical expropriation clauses in most IIAs, such as Article V of the 1997 Egypt-Malawi BIT, the expropriation provisions enshrined in the Protocol establish a notably more stringent and narrowly defined framework. Article 20(2) of the Protocol limits the definition of expropriation by excluding “non-discriminatory regulatory measures . . . aimed at safeguarding legitimate public policy objectives.” This aligns with provisions in recent IIAs, such as Annex 8-A(3) of the 2014 Comprehensive Economic and Trade Agreement (CETA), which similarly exempt regulatory actions from expropriation claims.
Articles 19 and 21 of the Protocol impose unconventional restrictions on compensation for expropriation. Notably, instead of the traditional requirement that compensation be “made without delay“ or “without undue delay” as seen in Article 5(3) of the 2006 Gambia-Morocco BIT, the Protocol replaces this traditional requirement with the more ambiguous phrasing “paid within a reasonable period of time.”
The Protocol also departs from the traditional standard of “prompt, adequate, and effective compensation” as exemplified in Article 6 of the 2009 Mauritius-Tanzania BIT. It conditions compensation on the host state’s domestic laws (Article 19(1)(d)), while also requiring a fair balance between public interest and the rights of affected parties (Article 21(2)), and various other factors come into play, including the investment’s market value, purpose of expropriation, profitability, investor conduct, and duration.
The Case for Limited Security – A Constrained Approach?
In a departure from customary practice, Article 18 of the Protocol notably deviates from established norms by subtly constraining the conventional application of Full Protection and Security (FPS), a time-honored pillar in the lexicon of IIAs. Consider, for instance, Article 4(3) of the 2019 BIT between the Central African Republic and Rwanda explicitly guarantees that investments made by investors from either state shall be accorded “full protection and security” within the territories of the other. However, the Protocol curtails the breadth of protection by restricting it to “physical” security, deliberately omitting the term “full” from its language. In doing so, it narrows the scope of safeguards afforded to investments, deliberately excluding not only legal protections but also any broader interpretations of FPS that might encompass elements beyond the mere physical safeguarding of investments. This shift signifies a deliberate move toward a more limited and restrictive understanding of FPS, contrasting with the traditionally more expansive and inclusive standards.
Moreover, Article 18 of the Protocol introduces an additional layer of limitation by tethering the obligation of physical protection and security to the “capabilities” of the State Party. Specifically, it invokes the “obligation of due diligence” that a State must uphold within its own borders, in alignment with the principles of Customary International Law. In doing so, this provision recalibrates the level of protection afforded to investors, linking it to the host state’s practical capacity. This creates a flexible framework that undermines the traditionally steadfast FPS standard, lowering the threshold of protection that investors might otherwise anticipate and introducing an element of variability based on the state’s resources and capabilities.
Chapter 5 of the Protocol sets out a comprehensive array of investor duties, encompassing adherence to the legal framework of the host state; the upholding of rigorous ethical standards in business conduct, labor practices, human rights, and corporate governance; the safeguarding of environmental integrity and the rights of indigenous communities; the prohibition of corrupt activities and interference in the internal affairs of the host state; and the active promotion of sustainable development. These obligations reflect a commitment not only to legal compliance but also to the ethical, social, and environmental imperatives that underpin responsible investment.
In an innovative extension of investor obligations, Article 47 of the Protocol introduces the concept of extraterritorial liability. It specifies that investors and their investments may be subject to civil actions in their home state’s judicial system for any acts, decisions, or omissions related to their investment in the host state that result in harm, personal injury, or loss of life. This provision represents a pioneering attempt within an IIA to address competence obstacles, such as issues of territoriality and forum non conveniens, among others. While a full examination of its practical ramifications and enforcement complexities is beyond the scope of this discussion, the provision will likely provoke significant opposition from investors who could face such legal actions.
IV. Dispute Settlement in the Investment Protocol: A Shift Away from ISDS
Initially, the signatories to the Protocol aimed to conclude the Annex on dispute settlement within one year of the Protocol’s adoption, as enshrined in Article 46(3). Yet, the Annex remains incomplete to this day. The Draft Annex, spanning Articles 5 to 21, sets forth the framework for Investor-State Dispute Settlement (ISDS). Notably, Article 6 grants investors the flexibility to pursue arbitration under the ICSID Rules, the UNCITRAL Rules, or, intriguingly, “any other arbitration framework or set of rules of their choosing.” This exceptional flexibility allows investors to select the arbitration mechanism that best aligns with their preferences, thereby expanding the range of available dispute resolution options.
The Protocol’s endorsement of traditional ISDS mechanisms starkly contrasts with its broader shift away from established investor protection standards. This adherence to the conventional framework also fails to reflect the growing skepticism within certain African nations—South Africa in particular—toward the continued application of ISDS. This signals a deliberate move towards alternative, more balanced approaches to resolving investment disputes, diverging from the entrenched ISDS model. Given this precedent, one might reasonably expect that the final iteration of the Protocol’s Annex on dispute settlement would notably refrain from incorporating provisions that compel host states to grant prior consent to ISDS mechanisms. Furthermore, it would be surprising if the Annex were to include a standing, unilateral offer permitting investors to unilaterally elect the arbitral rules under which to advance their claims.
V. Conclusion
The Protocol’s reforms, while ambitious, are likely to have a limited impact, predominantly altering protections for intra-African FDI under existing BITs, while leaving safeguards for non-African investors largely intact. In 2022, the bulk of FDI into Africa came from outside the continent, with the Netherlands (USD 109 billion), France (USD 58 billion), and the United States and United Kingdom (USD 46 billion each) leading the charge. South Africa continued to be the primary origin of intra – African FDI totaling (USD 33 billion). Thus, while the Protocol may reshape intra-African investment dynamics, its effect on the broader flow of external FDI—which defines Africa’s investment infrastructure—will remain negligible.
The majority of ISDS disputes lodged against the member states of the AU have predominantly stemmed from investment treaties involving African and non-African counterparts, rather than from intra-African agreements. According to the 2023 UNCTAD Investment Dispute Settlement Navigator, African investors represent a mere fraction—below 10%—of ISDS cases pursued against African nations. Should current trajectories continue, this Protocol appears poised to exert minimal influence on roughly 90% of potential ISDS claims that might emerge post-ratification.
In this context, investors from the AU—particularly those from South Africa—appear to be in the best position to benefit from the limitations imposed by the Protocol. This contrasts sharply with the dissolution of intra-EU BITs, which, despite their termination, left European investors protected under the EU’s robust legal framework. By comparison, while the Protocol curtails protections for AU investors under intra-African BITs, it fails to establish equivalent safeguards to compensate for these losses.
* Mr. Muhammad Siddique Ali Pirzada is a final-year LL.B. (Hons.) candidate at the University of London (Pakistan College of Law – PCL), currently serving as Managing Editor of LEAP, President of the PCL Study Circle Society, and a YIAG member. Additionally, he has competed as an Oralist in the Philip C. Jessup International Law Moot Court Competition. He has authored numerous articles for prestigious global publications and gained work experience at Al Tamimi & Co. (DIFC), Bhandari Naqvi Riaz, Mohsin Tayebaly & Co., and The Supreme Court of Pakistan, focusing upon: International Litigation & Dispute Resolution, Commercial Litigation & Advisory, Constitutional Law and Corporate Governance.
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Apr 4, 2025 | Online Scholarship, Perspectives
*Sankari B
I. Introduction
Recently, the World Trade Organization’s (“WTO”) Agreement on Fisheries Subsidies (“AFS”) was adopted during the 12th Ministerial Conference in 2022. Being the first multilateral agreement to achieve the Sustainable Development Goal (“SDG”), AFS was considered a milestone in environmental objectives and ocean sustainability. The AFS primarily deals with eliminating fisheries subsidies to regulate illegal, unreported and unregulated fishing (“IUU Fishing”), which is contained within SDG 14.6.
Fisheries subsidies are considered to have damaging effects on “trade, environment and sustainable development” according to Chen in Fisheries Subsidies under International Law. They create competitive disadvantages and restrict market access for non-subsidized fish and fish products. Further, they incentivize overfishing, which has a direct impact on ocean sustainability. The latest data on fisheries subsidies indicate that USD 35.4 billion was spent on fisheries subsidies across the globe, with China, the US, and the Republic of Korea, paying the highest on them. This issue has caught attention since the 2001 Doha Ministerial Conference. It has finally culminated in the AFS, which offers a skeletal framework for removing fisheries subsidies. However, as evident from Article 12, the AFS is still being negotiated, and the current agreement would stand terminated if comprehensive disciplines are not adopted within four years since the AFS entered into force.
Despite the pernicious nature of fisheries subsidies, developing and least-developed countries (“LDCs”) (collectively, the “Global South”) have raised several concerns ranging from the livelihoods of small-scale fishermen to food security issues in countries, which are heavily reliant on fish for nutrition. While the existing literature on AFS discusses its potential benefits, its impact on indigenous communities and the nature, scope and implications of the agreement, there is a limited understanding of how the Global South shaped (or did not shape) the formulation of the AFS.
In this context, this perspective seeks to examine the AFS through the Third World Perspectives on International Law (“TWAIL”) and unpack the voices of the Global South in the negotiations and formulation of the AFS. It argues that the AFS significantly suppressed these voices and could have drastic implications on small-scale and artisanal fishing communities in the Global South.
II. Unpacking TWAIL in the Context of Trade and Environment
BS Chimni, in his Critical Theory and International Economic Law: Third World Approach to International Law (TWAIL ) Perspective, argued how mainstream international economic law perceives international economic law as “ahistorical,” ignoring the relationship between countries arising from colonialism, neo-colonialism and global imperialism. In the same vein, sustainable development also ignores the intrinsic link between capitalism, imperialism, and nature. The concept can be manipulated by powerful nations and corporations to promote their interests and fails to acknowledge the historical relationship between imperialism and prevalent environmental challenges. Thus, it is argued that neoliberal definitions of international economic law do not ensure sustainability.
The WTO’s Agreement on Agriculture (“AoA”) illustrates the TWAIL perspective concerning the intersection of trade and environment. The implied promise of agricultural trade liberalization under the AoA is to ensure market access to developing countries and to remove subsidies contributing to the over-exploitation of land through the indiscriminate use of fertilizers and pesticides. However, none of these objectives were truly achieved with the developed nations (collectively, the “Global North”), which employed liberalization, development, and environmental justice to cement their hegemony.
First, the AoA led to an increase in food imports, along with a decrease in food production, adversely impacting food security, poverty, development and the environment. Such an increase in imports had a domino effect on the Global South, including a threat to key agricultural sectors crucial for food supply, employment, poverty alleviation and economic development, and environmental damage in developing countries due to chemical-intensive and monocultural modes of agricultural production.
Second, the AoA has institutionalized power imbalances between the Global North and the Global South. It permits past users (the Global North) to maintain export subsidies (subject to minimal reductions) while prohibiting the introduction of new subsidies by developing countries. It has unfairly deprived the Global South of the policy tool to build their agro-export revenue from domestic food production and made the countries therein increasingly import subsidized goods.
III. Uncovering the Global South Voice in the AFS Negotiations
During the AFS negotiations, the Global South had a host of concerns that were brought up during the negotiations. First, the Special and Differential Treatment (“SDT”) for the Global South. SDT was especially highlighted in the Hong Kong Ministerial Conference, wherein it stressed the vitality of the fisheries sector for the Global South, especially for poverty alleviation, livelihood, and food security concerns. Small and vulnerable economies have called for an expansive understanding of SDT, including flexibilities for industrial and semi-industrial fishing, length of time to implement the agreement, greater opportunity to consult before any Dispute Settlement Body cases, and technical assistance and capacity building.
Second, non-actionable subsidies. It was contended that some subsidies that do not adversely impact trade and sustainability (“non-actionable subsidies”) should not be removed, like subsidies involving infrastructural development, the prevention and protection against diseases, scientific research and training, or any other rehabilitative facilities for fishermen. Others include subsidies for conservation and regional development and social security, such as subsidies for natural disasters at sea, subsidies for the off-season, unemployment fees, early retirement funds and subsidies for fishermen’s re-education, re-training and alternative employment assistance.
Third, the capacity to develop fishing resources. It was argued that the prohibition of measures increasing fishing in a more sustainable way would unduly impede the ability of the Global South to use their fisheries resources for food security, poverty alleviation, and sustainable development. Further, there has been some skepticism regarding the link between subsidies and fisheries depletion, since the evidence has been based on data from the Global North with large-scale industrial fleets.
Fourth, the protection of small and vulnerable coastal states and artisanal fishing. There have been calls to exclude subsidies to artisanal and small-scale fishing from the definition of fisheries subsidies while providing small and vulnerable coastal states with SDT or classifying such activities as non-actionable subsidies. Small and vulnerable coastal states proposed to exclude subsidies granted to assist their development from the purview of discussion.
Fifth, addressing the harms of non-specific fuel subsidies. There have been contentions surrounding the reduction of non-specific fuel subsidies. It has been argued that fuel subsidies constitute twenty-two percent of the fisheries subsidies provided, and largely cover non-specific fuel subsidies. This obscurity of non-specific fuel subsidies is detrimental to ocean sustainability, because it continues to incentivize unsustainable fishing practices.
Sixth, sufficient transition period. Developing countries like India have also requested a twenty-five-year moratorium imposed on Distant Water Fishing Nations to provide any subsidy for fishing or fishing-related activities beyond their Exclusive Economic Zones (“EEZ”). Further, it was argued that subsidies should not be prohibited for developing nations and LDCs during this period. This would allow the nascent fisheries sectors in these countries to thrive.
Seventh, unequal comparison of subsidies between developed and developing nations. The Global South argued that the comparison of subsidies should be based on “per-fisher subsidy.” Given the larger fishing population in the Global South vis-à-vis the same in the Global North, the per-fisher subsidies are much lower in the Global South vis-à-vis those in the Global North. To illustrate this, in India, the per-fisher subsidy is estimated to be $15 per fisher, while the Global North countries, such as Denmark, provide per-fisher subsidies as high as $75,000. Thus, without considering per-fisher subsidies, the comparison between the Global South and Global North has been unfair.
IV. Assessing the AFS through a TWAIL Perspective: The Case Study on India’s Fisheries Sector
This section analyzes AFS through a TWAIL perspective, keeping in mind the seven blocks of concern examined in Part III. This analysis is performed with the Indian fisheries sector as the case study. The reason behind contextually analyzing a country is to demonstrate the needs and concerns of one nation distinct from others. This offers a larger critique of the AFS for homogenizing countries, without understanding the unique concerns of the Global South.
i. Contextual Analysis of India’s Fisheries Sector
Fisheries is a crucial sector for India socio-economically; it contributes 1 percent of India’s Gross Domestic Product and exports INR 46,662.85 worth of crore, while providing food security and securing livelihood for around 3.77 million people. Of the fishing-dependent population, about 67 percent of the families are under the Below the Poverty Line (“BPL”) category, around 16 percent belong to marginalized backgrounds and 48.7 percent are women. Only 25.8 percent of Indian fishing vessels are mechanized, while the rest are non-mechanized or motorized fishing crafts.
India provides INR 2225 crore approximately towards supporting fisheries as of FY 2019. Fuel subsidies are the most significant support, amounting to 32 percent of the subsidies provided, and are rapidly increasing with a growth rate of 142 percent. The second most key category of subsidies is those promoting deep-sea fishing, mariculture and vessel modernization. The third most crucial type of support is relief from disaster and other social security nets.
Existing studies and accounts demonstrate the flawed structure and distribution of fisheries subsidies in India. Firstly, these subsidies may not truly benefit the most vulnerable fishermen as they predominantly aid the better-off fishermen. Further, there are additional developmental needs (such as safety in the sea) that remain unaddressed through these support programs. The Indian experience with fuel subsidies has demonstrated that they are inefficient in transferring benefits, prone to leakages and manipulated by middlemen, who resell the fuel at higher prices. Secondly, most of the subsidies are focused towards fuel, modern fishing gear, ice plants, and marketing since India is promoting aquaculture. For instance, in Karnataka, of the eighteen subsidies listed in 2018-19, only two were dedicated towards welfare, and thirteen focused on marketing and inland fisheries development and aquaculture. This does not provide any incentive or support for small-scale and vulnerable fishing communities. Thirdly, a study conducted in Southern Karnataka shows that only select fisherfolk receive welfare subsidies on a first-come-first-served basis. Further, many fishers are not aware of the schemes available to them. Thus, the fisheries subsidies in India require reformation.
ii. TWAIL Critique of AFS and the Implications on India’s Fisheries Sector
This segment presents a TWAIL critique of AFS and analyzes the implications on the Indian fisheries sector, offering recommendations to India and other developing nations and LDCs.
1. The AFS under-regulates subsidies harmful to ocean sustainability. They are used to subsidize vessels’ increased fishing capacity and fishers’ fishing expenses, such as fishing gears, capital costs, and fuel subsidies. These subsidies account for 60 percent of the global fisheries subsidies and are constantly increasing, most of which are provided by the developed countries. India pointed out the lack of recognition of non-specific fuel subsidies. This suggestion was rejected by the majority of the members.
Recommendation: The AFS negotiations should identify subsidies that are detrimental to achieving ocean sustainability. Article 5 should accordingly contain guidance regarding identifying “harmful” subsidies.
2. The categories of “developed” and “developing” countries are obsolete. The self-declaratory mechanism to recognize developing status allows some large economies to maintain the footing of developing nations. In the context of fisheries subsidies, this is more problematic. Specifically, China dominates distant-water fishing with large and modernized vessels but continues to enjoy SDT benefits as a developing nation.
Recommendation: To address over-generalization of developing nations, the self-declaratory mechanism must be transformed. There should be further classification within developing nations, based on fishing fleet size, mechanization or catch capacity to fairly distribute SDT benefits.
3. The de minimis requirement was notified as an explanatory note in December 2023. Reading this requirement along with Article 4.3 of the AFS carries adverse implications for the Global South. The note specified that while the twenty largest subsidy providers would be subject to the strictest scrutiny, LDCs and developing countries with a global share of marine catch not greater than 0.8 percent would be excluded from the prohibition on fisheries subsidies. Countries not within these categories are mandated to demonstrate sustainability as per Article 4.3. This is fallacious because the Global North with large industrial fleets have the capacity and the regulatory regime to show compliance. This would then incentivize them to provide prohibited subsidies to their historically large industrial fleets. In contrast, developing countries like India, which fall under neither of the categories, lack the capacity to engage with onerous requirements and paperwork to demonstrate sustainable fishing and cannot provide the necessary support for their nascent fisheries sectors to grow.
Recommendation: The requirements of sustainability under Article 4.3 must be defined in a manner that allows for contextual interpretation based on the needs of the Global South.
4. The twenty-five-year transition period sought was rejected and would have detrimental implications on livelihood and food security. Given the socioeconomic background of Indian fishing communities and food security concerns, there is a pressing need to address these issues before phasing out subsidies. Appallingly, the AFS provides merely two years to transition for the Global South. However, this is not the case in other WTO agreements. For instance, the AoA has a transition period of ten years. Short transition puts the livelihoods of fishing communities and the food security of developing countries like India at risk.
Recommendation: In further negotiations, there must be a strong push for extending the transition period and providing more robust SDT provisions that impose concrete obligations on developed nations.
5. There exists no definition for artisanal and small-scale fishing, which are the most vulnerable groups within the fisheries sector. Without such a definition, the AFS cannot proceed in carving out exceptions for them. The lack of a sufficient transition period coupled with the absence of any exceptions for BPL-fishers would further push them into poverty. Thus, the interests of vulnerable communities in the Global South have been compromised, despite the incessant demands to meet their interests during the negotiations.
Recommendation: There must be a push for defining and protecting small and vulnerable coastal states and traditional and artisanal fishers. The prohibitions on subsidies must be lifted for these categories.
6. Article 7, which provides for a voluntary funding mechanism for developing countries, is inadequate because it does not obligate developed nations to provide income support or offer technical know-how to develop sustainable fishing practices. Further, the fund excludes other crucial disciplines, including poverty reduction, disaster recovery, alternative employment for fishers and technology transfer. All these requirements were put forth during the negotiations by the Global South but were neglected in the AFS.
Recommendation: The voluntary fund mechanism should be made mandatory for a specific number of years to assist the Global South during their transition phase. There must also be a call for more technological transfers that would aid the Global South to develop sustainable fishing practices.
7. The use of sustainability to institutionalize Global North hegemony is evident in the AFS and its negotiations. There is a complete lack of historical responsibility by the Global North with large industrial fleets, who have contributed to the current overfishing crisis. They have employed the United Nations Convention on the Law of Seas (“UNCLOS”) to exploit deep-sea fishing beyond the EEZs, the common heritage of mankind. This was effectively achieved through Fisheries Access Agreements (“FAAs”), drawn up by the EU, the US, Russia and Japan. The FAAs, along with the UNCLOS, affected small and traditional fishers and provided incentives to larger corporations to fish beyond limits. Thus, the institutionalized sustainable objectives may stifle the growth of fisheries in the Global South by denying them a reasonable way of providing income and rehabilitative support to vulnerable fishers.
Recommendation: The Global North must acknowledge its responsibility for the overfishing crisis. Suitable amendments also must be made to the FAAs to incorporate ocean sustainability and SDT provisions for the Global South.
These recommendations must be supplemented with reforms in India’s (and other developing countries’ and LDCs’) subsidies distributive mechanisms. India must phase out fuel subsidies, given its link to unsustainable fishing and instead redistribute such harmful subsidies in a positive manner. This includes support for traditional fishing practices, sustainable fishing, research and development, fisheries management, social security nets, disaster relief, and poverty alleviation.
The article unpacks the complexities of approaching the issue of fisheries subsidies and ocean sustainability. A one-size-fits-all approach, as in the case of the AFS, is grounded in institutionalizing power imbalances between the Global North and the Global South. This negatively impacts the latter and their small-scale, nascent and vulnerable fishing sector. Further, the AFS is not efficacious in achieving ocean sustainability since it does not dismantle the root causes of overfishing: non-specific fuel subsidies and FAAs. Thus, going forward, the Global South must push for measures that protect their fisheries sector and ameliorate ocean sustainability concerns.
* Sankari B is a final year undergraduate student studying at the National Law School of India University, Bangalore (NLSIU).
Cover image credit
Mar 28, 2025 | Online Scholarship, Perspectives
Michael Jacobson* & Stephen Finan**
The Charming Betsy canon of interpretation, articulated by the U.S. Supreme Court in 1804, states that “[a]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” The Supreme Court has never caveated or altered this longstanding canon of interpretation. And yet, various court decisions in recent years have taken different approaches to interpreting and applying this canon in cases involving international law.
In the past, courts’ potential application of the Charming Betsy canon in cases arising out of government agency action may have come into conflict with the Supreme Court’s standard of deference to agencies’ interpretations of ambiguous statutes under Chevron v. NRDC. However, last year the Supreme Court overturned Chevron deference and replaced it with a new standard in Loper Bright Enterprises v. Raimondo. Now, “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority” irrespective of an agency’s interpretation. The Supreme Court explained that lower courts shall read an ambiguous statute “[as] if no agency were involved” and determine “the best reading” “after applying all relevant interpretive tools.”
This sea change in administrative law compels courts to stop deferring to strained agency interpretations of law when a better reading exists. Courts are now likely to lean more on traditional forms of statutory interpretation. In doing so, the Charming Betsy canon elevates the importance of reading statutes in a manner that is in accordance with relevant international law as courts determine the best reading of a statute.
In this article, we explore the future of the Charming Betsy canon of interpretation in a post-Loper Bright world. This issue is particularly timely as the Trump Administration has announced new trade-restrictive actions relying upon novel legal authorities. The new administration imposed tariffs on Canada and Mexico (following a 30-day pause) for the stated purpose of stemming immigration and fentanyl flows into the United States before removing and delaying those tariffs again, imposed additional new tariffs on China for the same reason, imposed expanded tariffs on imported steel and aluminum, and took initial steps to implement “reciprocal” tariffs to “correct longstanding imbalances in international trade and ensure fairness across the board.”
Trade-restrictive measures are commonly implemented through agency action, and thus reviewing courts may be applying the Loper Bright standard of statutory interpretation. In doing so, the courts may need to assess how best to apply the Charming Betsy canon of interpretation as they seek the best meaning of a statute.
This article proceeds as follows. First, we provide a brief summary of the Charming Betsy canon of interpretation, including its scope and usefulness to courts’ statutory interpretation. Next, we examine different instances where courts have recently applied (or not applied) the Charming Betsy canon under various types of international law. Then, we look back to the Solar Safeguards case involving imports from Canada, which arose out of one of the first trade-restrictive measures imposed by the Trump Administration, in early 2018. This case provides an example of a court’s decision to disregard Charming Betsy arguments and uphold the government’s action, despite on-point international law that disallowed such action. Indeed, an international tribunal later read the relevant international law in a manner that led to a reversal of the underlying agency decision. We then look ahead to Charming Betsy’s increased pertinence following the Loper Bright decision. Finally, we set forth a step-by-step guide to applying the Charming Betsy canon that courts should consider employing in a post-Chevron world.
I. A Summary of the Charming Betsy Canon of Interpretation
The Charming Betsy canon of interpretation states that “[a]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” There are a few key elements to this canon of interpretation for courts to consider when applying it.
Crucially, this canon only applies when there is a “law of nations”—or international law—that is relevant to the case. Although the Supremacy Clause of the Constitution elevates treaties as the “supreme Law of the Land” on par with federal statutes (and enacted with signature of the President and agreement of two-thirds of the Senate), other sources of international law are equally applicable under the Charming Betsy canon as “laws of nations.” One important category of international agreements that applies under Charming Betsy are trade agreements which are enacted under U.S. law as Congressional-Executive Agreements. These agreements are signed by the President and voted into law by both the House and the Senate. Prominent trade agreements enacted as Congressional-Executive Agreements include, for example, the North American Free Trade Agreement (“NAFTA”) and the subsequent United States-Mexico-Canada Agreement (“USMCA”) between the United States, Canada, and Mexico, as well as the Agreements of the World Trade Organization (“WTO”). There are also other sources of international law that might be relevant to a Charming Betsy analysis and that require less involvement of Congress, such as Executive Agreements (which do not require congressional action) and customary international law. For example, the Vienna Convention on the Law of Treaties has never been enacted by the United States but is a widely accepted source of customary international law that is used to interpret treaties and may be relevant in the Charming Betsy context.
Additionally, the Charming Betsy canon advises courts to avoid conflict between U.S. federal law and international law wherever possible. The 1988 U.S. Foreign Relations Restatement Section 115 explains the need to “reconcile[]” acts of Congress with international law and that courts “will endeavor to construe them so as to give effect to both.” Courts are tasked to read international law in congruence with U.S. law. The best reading of a statute is one that does not violate international law.
It is possible that there are rare instances in which no possible construction of a statute allows it to be read in congruence with international law. For example, if a statute is clear—previously known as Chevron “Step 1”—then courts may choose to apply that clear meaning irrespective of international law. In addition, statutes could expressly provide for a means of interpretation or context to avoid ambiguity. However, where statutes are ambiguous, Charming Betsy should apply.
II. Although courts generally apply the Charming Betsy canon, different federal judges have taken divergent approaches to how they apply it.
More than 200 years after the Supreme Court’s decision in Charming Betsy, courts across the federal system continue to find this interpretative canon applicable. “[D]eeply embedded in American jurisprudence,” Charming Betsy is “a rule of statutory construction sustained by an unbroken line of authority.” As the Supreme Court noted in 1988, Charming Betsy “has for so long been applied by this Court that it is beyond debate.” In fact, Justice Neil Gorsuch cited approvingly to the doctrine in a 2023 dissenting opinion. Similarly, Justice Amy Coney Barrett expressed approval of the doctrine prior to taking the bench as a helpful tool for textualist jurists.
Despite widespread acceptance of this canon, courts have not applied the canon in a uniform manner. Below we review the various ways the doctrine has been interpreted and applied by the courts.
a. Federal courts regularly apply Charming Betsy in cases not involving international trade agreements.
Judges readily apply Charming Betsy to interpret statutes in accordance with international obligations, particularly in non-trade contexts. If a statute is ambiguous, courts generally employ Charming Betsy as an interpretative tool to determine the best meaning of the statute.
For example, in Weinberger v. Rossi, the Supreme Court reviewed a statute that prohibited employment discrimination against U.S. citizens at overseas military installations, “unless such discrimination [was] permitted by a ‘treaty’ between the United States and the host country.” At the time of the statute’s passing, the U.S. had an existing agreement with the Philippines to provide Filipino citizens with preferential treatment for employment. The question before the Supreme Court was whether the term “treaty” should be understood as it appears in the Constitution or whether it also encompasses executive agreements like the Base Labor Agreement between the U.S. and Philippines. The Supreme Court ultimately applied the Charming Betsy canon to interpret the statute in a manner that avoided conflict with U.S. international obligations under the executive agreement.
There are several other examples. In a case involving international tax law, the Court of Federal Claims applied the Charming Betsy canon to “to interpret [a domestic statute] not to conflict with the provision of a foreign tax credit under paragraph 2(b) of Article 24 of the 1994 Treaty.” In a case involving intellectual property rights, Fox Television Stations, Inc. v. Aereokiller, LLC, the Ninth Circuit applied the Charming Betsy canon to conclude that interpreting § 111 of the Copyright Act so as to include Internet-based retransmission services would risk putting the U.S. in violation of certain treaty obligations. And, in a case involving terrorism and UN agreements, United States v. Palestine Liberation Organization, the U.S. District Court for the Southern District of New York strained to find an unambiguous statute ambiguous, applying the Charming Betsy canon to interpret the statute in a manner that did not conflict with U.S. international obligations. The Court unequivocally stated: “this court is under a duty to interpret statutes in a manner consonant with existing treaty obligations.”
Clear and consistent application of this canon appears to be uncontroversial and consistent when trade agreements are not the source of international law.
b. Charming Betsy is not useful where the statute is clear.
Most courts also agree as to when Charming Betsy does not apply—where the statute is clear, international law will not override that clear meaning. In Nippon Steel Corp. v. United States, the U.S. Court of International Trade (“CIT”) concluded that “[t]he Charming Betsy canon is a canon of statutory interpretation—not a matter of constitutional law—and therefore it is ‘not [a] mandatory rule[].’ Congress is free to override the canon via legislation.” Nippon Steel’s arguments failed because Congress had spoken. Similarly, in Government of Quebec v. United States, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) concluded that the statutory language is clear and therefore, Charming Betsy was inapplicable. This rule of application stems from the understanding that Charming Betsy “acts as a rebuttable presumption that Congress did not intend to place the United States in breach of international law” and to rebut that presumption, Congress must provide an “affirmative expression of congressional intent.” Where congressional intent to diverge from international obligations is clear, Congress has rebutted the presumption against breach.
c. The CIT and the Federal Circuit have applied Charming Betsy in different ways in various cases involving trade agreements.
Different cases before the federal courts that hear issues involving tariffs and trade measures—the CIT and the Federal Circuit—have taken varied approaches to the Charming Betsy canon.
For example, in Federal-Mogul, the Federal Circuit faithfully applied the Charming Betsy canon in a case involving antidumping duties. The court found that where “the Act presented [the agency] with a choice between methodologies for calculating dumping margins” and “[t]ax-neutral methodologies clearly accord with international economic understandings,” the court should not read a violation of an international obligation into the statute and should interpret the statute in a manner consistent with those international obligations.
However, the Federal Circuit in Allegheny Ludlum Corp. v. U.S. took a somewhat different approach. In that case, the court was tasked with determining whether the sale of a steel company’s assets from the French government to private individuals could extinguish pre-sale subsidies. In determining that 19 U.S.C. § 1677(5)(F) does not distinguish between an asset sale and stock sale, the Federal Circuit found that the “trial court correctly grounded its judgement in the statute and this court’s precedent,” however went further and concluded “[a]nother consideration also supports the trial court’s analysis . . . Section 1677(5)(F) ‘must be interpreted to be consistent with [international] obligations.’” The court found that disparate treatment under [Commerce’s] methodology would contravene a WTO appellate body report “specifically reject[ing] the argument that sales of assets should be treated differently from sales of stock for assessing countervailing duties.” The court thus recognized Charming Betsy as a “guideline that supports the trial court’s judgment.”
In addition, Judge Restani of the CIT in a law review article took a somewhat different view of how to apply Charming Betsy principles to statutory interpretation. She argued that Charming Betsy should be used as a means to interpret legislative intent: “If the statute is unclear, but the international agreement is clear, it likely should aid the court’s interpretation, but perhaps not based upon the Charming Betsy principles, as they have been understood. Rather, the statute is intended to implement the agreement, and the relevant WTO agreement may be viewed as secondary legislative history.”
Other court decisions have taken the approach of seeking to point out conflict between U.S. law and international agreements under Charming Betsy analyses as a basis to disregard the international law, rather than to seek harmony between statute and international law as the age-old canon entails. For example, in Nippon Steel v. United States, the CIT cites 19 U.S.C. § 2504(a) of the Trade Agreements Act of 1979, which states that “[n]o provision of any trade agreement approved by the Congress . . . which is in conflict with any statute of the United States shall be given effect under the laws of the United States” to conclude that where “the GATT and a federal statute collide, the statute governs, sinking the Charming Betsy canon in the process.” The Federal Circuit made a similar finding in Corus Staal BV v. Department of Commerce.
However, the Charming Betsy canon, as articulated by the Supreme Court, requires that the statute is interpreted to be consistent with the international obligation, when such “possible construction remains.” The canon is not designed to find conflict, but instead to find harmony between statute and international law. As one commentator explains, the canon should be invoked to “evaluat[e] the proper U.S. stance toward [international law]” rather than give international law positive legal force. Indeed, in the Federal-Mogul Corp. v. United States decision, the Federal Circuit acknowledged the 19 U.S.C. § 2504(a) requirement not to give effect to a provision of a trade agreement that conflicts with statute, but noted “GATT agreements are international obligations, and absent express Congressional language to the contrary, statutes should not be interpreted to conflict with international obligations.” It is not incongruent to read statutes consistently with trade agreements. In particular, 19 U.S.C § 2504, a standard provision commonly found in U.S. trade agreements’ implementing legislation, does not restrict courts’ ability to read statutes congruently with trade agreements, but rather reflects a core tenet of the Charming Betsy canon—that clear statutory language controls, and that the trade agreement should be read to be consistent with statute.
III. A Case Study: The Solar Safeguards Case
Some of the very first trade-restrictive measures imposed by the first Trump Administration were the global safeguard measures on solar cells and modules. Leveraging authority under Section 201 of the Trade Act of 1974, President Trump signed a presidential proclamation resulting in an initial 30% tariff and an annual 2.5-gigawatt tariff-free quota. This was the culmination of the first safeguards investigation in the United States since 2001 and implicated a massive amount of annual trade, primarily imports from Southeast Asia and South Korea. This is a useful case for a post–Loper Bright Charming Betsy analysis for two reasons. First, it involves a major trade measure imposed by the first Trump Administration and subsequent legal challenges, which gives a window into what might be ahead. Second, it offers a useful natural experiment on the Charming Betsy canon, where a reviewing court sets aside Charming Betsy arguments in its statutory interpretation, and later, an international tribunal came to a contrasting conclusion, interpreting the statute’s best meaning through the lens of the USMCA, a source of international law. This case shows how courts that seek the best meaning of a statute in light of the Charming Betsy canon might come to a different conclusion than if they were to give deference to the government’s reading or to read the statute without regard to international law.
a. Overview of the Solar Safeguards case
The statutory scheme for global safeguard measures can be found in Sections 201–204 of the Trade Act of 1974. Global safeguards investigations begin before the U.S. International Trade Commission (“USITC”), which investigates the market through detailed questionnaire submissions, a public, full-day hearing, and briefs from interested parties; makes a binding determination on whether to authorize safeguard measures; and then issues a nonbinding recommendation to the President on what measure(s) to impose. Then, the statute grants the President the authority to impose (or not impose) safeguard measures as he or she chooses, with some specific statutory limitations and constraints.
Separately, the NAFTA Implementation Act provided for a distinct and specific legal test for imposition of global safeguard measures on imports from Canada and/or Mexico. That legal test also can be found in the text of the NAFTA and parallel text in the subsequent USMCA, although there are important differences between the NAFTA/USMCA and their implementing legislation, as addressed below.
In the Solar Safeguards case, the USITC made affirmative findings for global imports, thereby authorizing the President to impose safeguard measures on a global basis—which he did. However, the USITC in a 3–1 vote made negative findings for imports from Canada because the Commission found that imports from Canada were not a substantial share of imports nor did they contribute importantly to the serious injury caused by global imports under the NAFTA Implementation Act’s separate test. In every other global safeguard case prior, a negative finding from the USITC ended the matter for imports from Canada (or Mexico). However, for the first time ever, in this case President Trump disregarded the Commission’s negative findings and imposed safeguard measures on Canada in the same manner as were imposed on all other imports.
b. U.S. court litigation arising out of the Solar Safeguards case
The President’s imposition of safeguard measures on imports from Canada led to litigation before the CIT, which was then appealed to the Federal Circuit.
Three Canadian solar panel producers/exporters and a U.S. affiliated importer requested an injunction to halt application of the safeguard measure as applied to imports from Canada. Plaintiffs (supported by the Canadian Government as an amicus curiae) argued that the NAFTA Implementation Act was ambiguous in certain aspects and that international law—the NAFTA—made clear the proper interpretation of U.S. law in this case. Notably, Article 802.5(b) of the NAFTA expressly provides that “[n]o Party may impose restrictions on a good in [a safeguard] action . . . that would have the effect of reducing imports of such a good from a Party below the [recent] trend of imports.” Plaintiffs argued that Charming Betsy should lead the court to read the statute as preventing application of safeguard measures on Canada, at least in the manner that was done in this case.
The CIT upheld the safeguard measure on imports from Canada, irrespective of these Charming Betsy arguments. The CIT instead found that the plain meaning of the statute did not require interpretation in light of the international law on point. The Federal Circuit affirmed.
c. The USMCA panel reached different conclusions under international law.
Separately from the court cases brought by Canadian solar producers, the Government of Canada brought a NAFTA dispute against the United States on the basis that the solar safeguards measures on imports from Canada violated NAFTA Articles 802–803.
Because of the difficulty of forming an international panel under the NAFTA, which plagued NAFTA state v. state dispute settlement for many years, no panel was ever formed. Soon after the USMCA entered into force in 2020, Canada brought a USMCA dispute on the same basis. Due to fixes to the panel formation process in the USMCA, a USMCA panel was quickly formed and heard this case.
In February 2022, the USMCA panel unanimously ruled in favor of Canada on all counts—finding that the safeguard measures violated the USMCA. The USMCA panel explained that multiple aspects of the safeguard measures as applied to Canada were contrary to the text of the USMCA (which paralleled the text of the NAFTA).
Several months after the USMCA panel’s decision, the United States and Canada entered into a memorandum of understanding (“MOU”) that included removal of the safeguard tariffs on imports from Canada. Following this MOU, imports of solar panels from Canada were permitted to enter without regard to any safeguard—four and a half years after they were imposed in a manner that was upheld by the CIT and Federal Circuit, but ultimately found to be in violation of the USMCA.
d. Takeaways from the Solar Safeguards dispute
The solar safeguards dispute is a prominent example of the importance of the Charming Betsy canon in assisting U.S. courts to find the best meaning of a statute. If the courts had applied the Charming Betsy canon and read the NAFTA Implementation Act in concert with the on-point international law contained in the NAFTA, the courts may have come to a different conclusion and avoided several years of application of an unlawful measure and irreversible economic damage.
IV. Chevron and Charming Betsy
Until June of 2024, courts had long applied Chevron’s two-step analysis when reviewing agency interpretations of statutes. Generally, where an agency advocated a statutory construction that comported with the relevant international obligation, “Charming Betsy and Chevron simply reinforce[d] each other.” When courts reviewed agency interpretations that conflicted with clear international obligations, courts typically applied Chevron, at the expense of the Charming Betsy doctrine. Below, we review how courts interpreted ambiguous statutes that conflicted with international obligations under Chevron and then look at how their methods of interpretation may change, now unbridled by the defunct Chevron deference doctrine.
a. Some courts found that Charming Betsy should be read in conjunction with Chevron.
Some courts read the two doctrines “in tandem” by generally incorporating the Charming Betsy canon into Chevron’s Step 2 analysis. While Chevron states that a court should normally defer to an agency’s reasonable interpretation, the CIT has found that “where international obligations arise, the reasonability of the agency’s interpretation must be gauged against such obligations.” When applying Charming Betsy, courts have generally imported the canon into Chevron Step 2 as an aid to determine whether the agency’s interpretation is reasonable. If the agency’s interpretation conflicts with a clear international obligation, courts have found the agency’s interpretation of the statute to be unreasonable.
b. Some courts found that Chevron took precedence over Charming Betsy.
Some courts and commentators alike have advocated for an approach where, even in the face of clear conflicting international obligations, an agency’s interpretation of an ambiguous statute takes primacy over Charming Betsy. In Suramerica de Aleaciones Laminadas, C.A. v. United States, the Federal Circuit held that “[if] Commerce’s interpretation of its statutory power falls within the range of permissible construction . . . that ends our inquiry . . . [E]ven if we were convinced that Commerce’s interpretation conflicts with the [General Agreement on Tariffs and Trade], which we are not, the GATT is not controlling.” Other courts have been hesitant to upset Chevron deference “unless the conflict between an international obligation and Commerce’s interpretation of a statute is abundantly clear.” Both the Tenth Circuit and First Circuit chose not to apply the Charming Betsy canon where it arguably could have, ultimately resolving the matter on Chevron grounds. Indeed, the First Circuit noted the majority’s “failure to adequately consider the Charming Betsy question and the tension between the agency’s interpretation in this case and U.S. treaty commitments.” Similarly, Professor Cass Sunstein and Judge Eric Posner have posited that, as an “international relations doctrine,” Charming Betsy should yield to Chevron deference when interpreting statutes related to foreign relations because the executive “is in the best position to balance the competing interests” of the nation and has “better information about the consequences of violating international law.” International Law Scholar and Professor Curtis Bradley, who has written extensively on Charming Betsy, has also prioritized Chevron, arguing that Charming Betsy “should not trump Chevron deference, at least where there is a ‘controlling executive act.’” Justice Kavanaugh as a judge on the D.C. Circuit (who joined the majority in Loper Bright in overturning Chevron) had previously taken the view that Chevron should be given priority.
c. Applying Charming Betsy in a post-Chevron world
On June 28, the Supreme Court uttered the already infamous words: “Chevron is overruled.” The decision was premised on a separation of powers argument that “the Framers crafted the Constitution to ensure that federal judges could exercise judgment free from the influence of the political branches.” The Court’s holding repeatedly points to Marbury v. Madison, which concluded that it is the province of the courts to say what the law is, but it also looked to Section 706 of the Administrative Procedures Act which “codifies for agency cases the unremarkable, yet elemental proposition . . . that courts decide legal questions by applying their own judgment.”
The Loper Bright decision rids courts of the need to defer to agencies when conducting their independent judicial review of questions of law. In addition to these signals, the Court presses lower courts to “apply[] all relevant interpretive tools” to determine the “best” interpretation of the statute.
Courts typically employ five types of interpretive tools to “say what the law is.” In a post-Chevron world, all five interpretative tools become more important and will be increasingly relied on. First, courts may look to the statutory text to determine a term’s ordinary meaning—“what the text would convey to a reasonable English user in the context of everyday communication.” Judges may leverage dictionaries or books to better understand the word’s ordinary usage. Second, courts may turn to the broader statutory context of the law, including how the term is used elsewhere in the statute or how the statute is structured. Third, courts can review the statute’s legislative history to decipher congressional intent. Fourth, courts may consider past practices or future scenarios. More specifically, a court could look at how an agency enforced a law previously or how a particular statutory interpretation may operate in the future. Fifth, and most important for our purposes, judges may choose to leverage various canons of construction—presumptions about how courts should read the text of a statute that “have been touted for centuries as neutral rules of thumb for reliably interpreting statutes.”
Unbridled by Chevron, courts will increasingly rely on substantive canons like Charming Betsy to interpret the “best” meanings of statutes. Charming Betsy requires courts to harmonize an ambiguous statute with U.S. international obligations whenever possible. Charming Betsy says the “best” interpretation of the statute is the one that does not conflict with international law. When interpreting ambiguous statutes, which courts are often called to do, they should turn to canons of interpretation including the Charming Betsy canon as a first step in determining the “best” reading of the statute.
Substantive canons have “long been a prominent feature of American, as well as English, statutory interpretation” and “have been and continue to be routinely invoked by federal and state courts.” However, substantive canons are not without their critics. Professor Bradley argues that there are three principal criticisms of canons: 1) canons do not effectively constrain judicial decision-making; 2) canons do not always represent likely congressional intent and 3) canons promote judicial activism as judges may use them to ignore the plain meaning of statutes.
Certain elements of the Charming Betsy canon insulate it from criticisms in a post-Chevron world. First, as Professor Curtis Bradley notes, many of these historical critiques have been countered by recent “academic and judicial support” finding that normative canons like Charming Betsy “represent value choices by the [c]ourt” that are “defensible . . . to the extent that good substantive and institutional arguments can be advanced on their behalf.” Similarly, Justice Barrett has acknowledged that a textualist’s obligation of faithful agency to Congress is qualified by substantive canons which serve to uphold constitutional values. Charming Betsy represents a canon that is applied not to further policy prerogatives but rather to reinforce institutional values. The canon is “a means of both respecting the formal constitutional roles of Congress and the President and preserving a proper balance and harmonious working relationship between the three branches.”
Second, Charming Betsy is a doctrine as old as the Republic. In Loper Bright, Justice Gorsuch seemed to challenge the dissent’s implication, that with overruling Chevron, the Court was getting rid of all substantive canons, by differentiating the deference doctrine from other “interpretative rules that have guided federal courts since the Nation’s founding.” While the Supreme Court formally announced the Charming Betsy canon in 1804, the principles underlying the Court’s thinking trace back much further. Professor Bradley believes Chief Justice Marshall could have found support for the canon in a pre-constitutional case, argued by none other than Alexander Hamilton, where a New York court read a state law in a way that comported with the Treaty of Paris and the law of nations. In addition, English law employs a similar canon and Professor Louis Henkin has found “numerous statements” where the Supreme Court as early as the late 1700s referred to the law of nations being incorporated into the “common law.” In fact, the principles underpinning the doctrine, known as the “law of nations” or jus gentium, find their roots in ancient Roman law.
Third, the Charming Betsy canon has been a feature in our judicial system for a long time and in that time, it has elicited no controversy or reaction from the political branches. It has become a critical “component of the legal regime defining the U.S. relationship with international law” and is even “enshrined in the black-letter-law provisions of the influential Restatement (Third) of the Foreign Relations Law of the United States.” Congress has long legislated with Charming Betsy as a backdrop and is on notice that it should speak clearly when it intends for a statute to violate international obligations. This argument follows the Supreme Court’s understanding that “Congress legislates with knowledge of our basic rules of statutory construction.”
V. Peering Through the Spyglass: A Step By Step Guide to Use of Charming Betsy Going Forward
Consistent with Supreme Court precedent, courts should apply the Charming Betsy canon when interpreting statutes that overlap with international law. Courts have even broader discretion to do so in a post-Chevron world. Below, we propose a three-phase approach that courts should employ when reviewing agency interpretations of statutes where international law is at play.
a. Step 1
First, courts should determine whether a statute is clear. If the statute lacks ambiguity, in particular if Congress expressly declared its intention to legislate in a manner that contradicts an international obligation, courts should apply the statute as written, irrespective of international law. Where Congress has clearly spoken, Charming Betsy is inapplicable.
b. Step 2
Second, if the statute is ambiguous, courts should look to international law to guide their interpretation of the best meaning of the statute. In accordance with Charming Betsy, courts should interpret the domestic statute in a manner that comports with the United States’s international obligation, with the goal of avoiding conflict between domestic law and international law wherever possible. This interpretive exercise should take precedence over agency interpretation of a statute, in accordance with the Supreme Court’s clear directive in Loper Bright that courts should seek the best meaning of a statute, irrespective of agency interpretation. Courts have long applied Charming Betsy as an aid in the statutory interpretation process in this way. Unbridled by Chevron, Charming Betsy should be a primary tool employed to interpret ambiguous statutes where coinciding international obligations exist.
c. Step 3
Third, if applicable international law is too ambiguous to guide the interpretation of an ambiguous statute, only then should courts give agencies’ interpretations “respect” to the extent they have the “power to persuade.” Notably, the Supreme Court in Loper Bright “warmly embraced Skidmore v. Swift & Co., which calls not for deference, but for respectful attention to the views of the relevant agency.” The Court held that interpretations “‘made in pursuance of [an agency’s] official duty’ and ‘based upon . . . specialized experience,’ ‘constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,’ even on legal questions.” Courts should use the Skidmore factors to weigh whether the agency’s interpretation is entitled to such “respect.” Factors for a court to consider include the “thoroughness evident in [the agency’s] consideration, the validity of [the agency’s] reasoning, [the interpretation’s] consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Under this approach, courts can fulfill their duty to interpret statutes, while relying on agencies’ expertise as a guide when both the statute and applicable international law present true ambiguity, in line with the standard established in Loper Bright.
VI. Conclusion
Charming Betsy has been applied by the Supreme Court for over 200 years. While the substantive canon of interpretation has sometimes come into conflict with the Chevron doctrine, diminishing its applicability and influence, the Loper Bright decision requires courts to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority,” “applying all relevant interpretive tools” to determine the “best” interpretation of the statute. With courts now unmoored from Chevron, courts can, and should, more actively leverage Charming Betsy to harmonize agency interpretations of ambiguous statutes with international law.
*Michael Jacobson is a Partner at the law firm Hogan Lovells US LLP in the firm’s International Trade and Investment practice, based in Washington, DC.
**Stephen Finan is a student at the American University Washington College of Law.
All views, positions, and conclusions expressed in this article should be understood to be solely those of the authors in their personal capacity.
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Dec 20, 2024 | Online Scholarship, Parella Symposium, Perspectives
Editor’s Note: This article is part of a four-piece symposium that examines Kishanthi Parella’s work, “Enforcing International Law Against Corporations: A Stakeholder Management Approach,” featured in Volume 65(2) of the HILJ Print Journal.
*Monika U. Ehrman
I. Introduction
Corporate secrecy is not a new phenomenon. Companies routinely take steps to ensure that prized information is secured and kept from competitors. Securing intellectual property as trade secrets keeps the information confidential for as long as the owner employs reasonable measures to guard the information—unlike patents, which offer term protection of certain types of intellectual property in exchange for public registry. Geographical and geological location data are especially lucrative for mining and petroleum companies, which target mineral resources for extraction and production. So, it is not unexpected that space mining companies would want to do the same. But should they be able to do the same is another question.
In December 2023, AstroForge, a private company, announced a proposed launch to surveil an asteroid for commercial mining. Formed from the remains of planetary and other debris following the creation of the solar system over 4.5 billion years ago, asteroids are small outer space objects that orbit the Sun. Not only do they contain insightful information about the birth of our planet and the possible origins of life, but they may also be financially valuable. Some asteroids contain high ore content of minerals that are rare or critical to modern technologies. So, it is not surprising that AstroForge wants to mine an asteroid. Which one? We do not know—the company does not want its competitors to find out.
Why should it matter that AstroForge will not disclose its intended extractive target? Because its target is in outer space—the province of all humankind. As such, does everyone on Earth own what AstroForge and extraction companies like it mine? That part is not clear to everyone. However, what is more clear is that any disputes over these asteroids or other outer space bodies are governed by international law, including such landmark treaties as the Outer Space Treaty and the Moon Agreement. And international law governance prevails where state actors carry out various duties in the international forum. In the case of space, almost all major actions are performed by governmental entities. But that is about to change.
Private entities, such as AstroForge, represent a new brand of space explorer—they are private sovereigns. They hold loyalty not to the nation, but to the investors. And therein lies the challenge with international law as the primary mechanism to govern private sovereign behaviors. Professor Kishanthi Parella explains, “Many corporate actors do not abide by international law because the international legal order lacks adequate mechanisms to ensure their compliance.” So how can one control the behavior of extraction companies in outer space? In her innovative Harvard ILJ article, Enforcing International Law Against Corporations: A Stakeholder Management Approach, Parella proposes we apply principles of corporate stakeholder governance to international law, by using non-state actors as a mechanism to force good corporate behaviors. This innovative approach offers success in challenging hybrid environments such as outer space.
II. Current Authority to Govern Potential Space Mining Activities
Scholars generally analyze outer space governance under the existing rubric of international law, which mainly consists of the: (i) 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”), (ii) 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the “Rescue Agreement”), (iii) 1972 Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention”), (iv) 1976 Convention on Registration of Objects Launched into Outer Space (the “Registration Convention”), (v) 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Agreement”), and (vi) 2020 Artemis Accords.
While multilateral approaches were once favored as a traditional mechanism to govern outer space, individual state action is on the rise, largely in part because of increased identification of resource potential—namely, the availability of precious minerals. Creation of an international agency or granting the United Nations authority over outer space resources is highly unlikely; and the creation of individual state agencies, while more tenable, does not address the international, cooperative governance required for the global commons. The third option thus prevails as the most likely scenario—states assert that each has the unilateral authority to extract resources. As state actors continue to embrace this strategy, other state actors have little choice but to follow the same approach, decreasing the likelihood of multilateral agreements. Thus, Parella’s framework offers a realistic governance overlay, allowing for oversight and changemaking without the niceties of formal international law.
III. The Necessity for Layered Approaches to Governance
International lawyers often express confidence in the rigor of international law to govern activities in space, but there are high tensions over the acceptance of multilateralism in an era of trending isolationism, exceptionalism, and non-interventionist stances. The political fluctuations of these policies may provide reassurance that multilateralism and international cooperation survive and endure. However, in those multilateral lulls and lows, there is an increased risk of private companies or isolationist States establishing extraction customs in outer space. Once established and ensconced, it becomes difficult to reject those practices and law often evolves around them.
The other major challenge is the physical and temporal distance of outer space regions to the Earth. Outer space resources—hidden resources—are far beyond the sight of Earth-bound observers, a physical manifestation of the saying, “out of sight, out of mind.” Control of outer space resources may still be manageable due to the restricted number of available commercial launch facilities; however, States make independent decisions with respect to launches and the number of space launch sites will only increase. Although commercial launch capabilities are now restricted to a few global centers, the privatization of commercial space transport will no doubt continue as entry costs decrease.
While international law remains an important foundation to govern space mining activities, it should not be the sole mechanism and, indeed, cannot. During a meeting of the SMU Subsurface Resources Research Cluster on April 29, 2024, Dr. Guillermo Garcia Sanchez described the energy legal process as a system of interconnected phases which only partly consist of the laws and contracts that govern exploration, discovery, development, production, and reclamation. These legal processes also include public and private law, in addition to industry customs and practices and other norms. The substantive laws and contracts operate in conjunction with the law of the resource situs—the law of the jurisdiction in which the resource is located. For example, offshore petroleum deposits are generally located in State waters (either in the Continental shelf or Exclusive Economic Zone), where the law of the State applies. In much of the rest of the world, the State, as sovereign, owns all mineral resources. However, States may invite or open resource development to firms outside the State, which then introduces international law to the transaction via the relationship between State and non-State firm(s). But where the resource is located beyond State boundaries, such as the high seas or outer space, international law also applies where recognized by consenting States—like those who are parties to the United Nations Convention on the Law of the Sea and the Outer Space Treaty.
What happens then when space mining actors disregard the law, whether out of principle or for convenience? Yet, that firm belief in the absolute resolve of international law fails to consider the lessons of historical import. Space mining is just an old story in a new realm. During the Gold Rush of the late 1800s, immigrant miners from diverse lands, including England, Germany, Mexico, and South American nations, ventured to the American West to make their fortunes. Most all those ancestral miners came from countries where the sovereign owned all mineral resources and, critically, paid a royalty—the regalian right—to the State. The miners were not fond of such sovereign ownership and payment and had no intention of deliberately instituting the same in these new American mines. So, they borrowed those helpful traditions and customs of their native mining districts, such as free access and the extralateral right, while denying others, such as reporting production and provisioning a royalty. Subsequently, though the Western mineral deposits were primarily located on federal lands, the miners implemented their own desired customs, later codified by Congress into the General Mining Law of 1872—which still applies today.
Why then were these miners able to keep ownership of mines and the produced minerals? Arguably because of a governance vacuum. Though there were applicable laws on ownership of the land—“there was no law governing the transfer of rights to these minerals from public ownership to miners.” The miners took advantage of such regulatory absence.
IV. Governance Vacuums and the Parella Stakeholder Governance Model
Many believe the question of asteroid space mining to be settled—that States may not claim ownership of asteroids, but they can own what they extract. From a property perspective, I contest this distinction. I believe that the action of extraction of the part is by its nature an assertion of ownership of the whole. But while legal uncertainty increases the corporate firm’s transactional risk, it also increases the availability of first mover advantage and, arguably, the opportunity for innovation. High risk-high reward companies, like venture-capital backed space mining companies, may prefer operating in governance vacuums, where property right legal uncertainty abounds. Enter Parella’s stakeholder governance model. Parella’s model provides greater stability where a weak system of ownership exists and some stability where no framework exists.
The main benefit of applying Parella’s model to space mining ventures is that it applies to both public and private companies. A central challenge in space extraction companies is a lack of transparency due to their often-private nature. Five of the largest companies—AstroForge (U.S.), Karman+ (U.S.), TransAstra (U.S.), Origin Space (China), and Asteroid Mining Company (U.K.) are all privately-held companies backed by venture capital. Before it was acquired by blockchain company, ConsenSys, Planetary Resources was a U.S. privately-held company, whose backers included billionaires Ross Perot Jr., then Google Chief Executive Officer Larry Page and Chairman Eric Schmidt, and former Goldman Sachs Group Inc. Co-Chairman John Whitehead. Neither corporation nor unincorporated publicly-traded company, these private companies have lesser built-in corporate accountability measures, like traditional shareholder governance. Further, there is not systematic financial reporting and mandatory disclosure of metrics like those on environmental, social, and governance goals; there may not be rigorous oversight for investors by federal agencies, such as the U.S. Securities and Exchange Commission. Here is where Parella’s framework shines. Instead of relying on formal mechanisms to govern or shape company behavior, Parella looks to stakeholder management to pressure corporate actors to: “frequently align their behavior to conform to the values and expectations of a range of non-state actors—corporate stakeholders—such as consumers, employees, insurers, financial institutions, investors, industry organizations, and NGOs, among others.” She theorizes that “[t]hese stakeholders can address important gaps in the international legal order by offering incentives that nudge corporate actors toward compliance with international law.”
Moreover, Parella’s model is also practical, relying on enforcement by a variety of norm entrepreneurs and not just on a single State actor. Of particular interest to me is her meticulous, tabular identification of various stakeholder enforcement mechanisms, one of which is “monitoring.” Monitoring that is akin to an audit function will be crucial to space mining governance due the physical distance of potential mining sites from Earth observation—the main asteroid belt (between Mars and Jupiter) lies between 111.5 and 204.43 million miles from Earth. Because of the lack of physical visual site and a (cost-effective) method to visit the operation, the distant extraction community of miners, subcontractors, and other support tools/machines, can conduct operations without actual, observable oversight. Even the transmission of data to and from the mining site requires time, as a function of the distance. Although many missions and operations are conducted at great physical distances—for example, China’s recent unmanned mission to the far side of the Moon, the opportunity to disregard international law and custom or for malfeasance or misconduct increases without monitoring and the ability to audit.
Mining on planetary or lunar bodies is more complicated. As opposed to the Outer Space Treaty, there are fewer signatories to the Moon Agreement, and even fewer to the Artemis Accords. Notably, the major space exploring States, Russia and China, have signed neither. But whereas the potential for asteroid mining is great due to the millions of bodies surveyed, Martian and lunar mining sites are arguably more difficult—the property rights are more complicated. The difficulty arises with respect to the resource location. Minerals are not scattered among planetary crust in even fashion. They accumulate due to varying geologic and geomorphologic conditions and events over great periods of time. If one company establishes a mining location on Mars or the Moon, that location may preclude others from economically accessing the resource without disturbing the original company’s operations. Establishing, protecting, and defending mining operations could easily accelerate into risky, geopolitical situations. Parella’s model can diffuse future tensions by establishing cooperative frameworks, best practices in supply chain and operational management, and provide labeling of sourced minerals to help purchasers and end-users identify those minerals that are “conflict-free” or ESG compliant. The possibilities to apply Parella’s model are endless; and the potential to reduce threats is significant.
V. Conclusion
Natural resources are beset with antiquated legal doctrine. The lumbering laws governing mining arose from customs that primarily benefited the mining communities who formed them. Current congressional tensions hinder the passage of new natural resource legislation, though the Biden Administration has made good efforts to identify possible reforms to the 1872 General Mining Law. The incoming Trump Administration is likely to advance mining and space resource extraction, as it previously did during its first term. As always, science and technology has advanced far faster than the law and policy to govern them. And therein lies the power of Parella’s stakeholder management approach—it relies on an existing discipline that has had great success influencing corporate behaviors. International law is still the foundation of outer space activities. Applying stakeholder management principles, in addition to private contract and insurance, adds security to the business and mitigates the risk of failure.
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