Apr 1, 2023 | Content, Online Scholarship, Perspectives
PATRICK MILLER & KABIR DUGGAL*
Introduction
Milton Friedman famously stated that a business has no purpose except to increase shareholder value. This approach is increasingly dying.[1] Most international commercial lawyers have a general sense of human rights law—though it is often dismissed as a collection of non-binding, aspirational pronouncements having little practical effect on the way business is conducted or how businesses advise their clients. Indeed, human rights law in international law is often understood as obligations of states in relation to humans with a limited role for business. As a result, businesses often have only a passing understanding of the legal regimes related to business and human rights (“B&HR”).
Businesses which are not steeped in these issues can be forgiven for assuming that regimes related to B&HR are limited to the non-binding, aspirational arena, particularly as this may have been true for a time. On the one hand, we see an increased focus on Environmental, Social, and Governance (“ESG”) obligations, although these tend to be non-binding or aspirational. At the same time, we notice the creation of hard law obligations which are enforced by national governments.
Inquiries into corporate misconduct in the 20th century rarely went beyond the question of whether corporations even had a duty to protect human rights. The international conventions described below were landmark milestones in setting out a coherent framework establishing the bounds of corporate conduct and the obligations that multinationals have to various stakeholders. These milestones laid a foundation for national governments to begin enacting “hard law” regulations.[2] We expect that ESG and B&HR obligations will take a firmer form in the years to come—although these changes will often be a result of political pressure, national priorities, and global initiatives.
This article traces the key recent developments in B&HR from international agreements to some of the leading national regulatory regimes.
I. The International Framework
International law has traditionally focused on the role of states. While the role of non-state actors has played a limited role, certain efforts to identify international obligations for businesses exist.
A. The UN Global Compact (2000)[3]
Conceived by former UN Secretary Kofi Annan, the UN Global Compact is a voluntary initiative where companies commit to implement universal sustainability principles and take steps to support UN goals. The UN Global Compact is “open to any company that is serious about its commitment to work towards implementation of the UN Global Compact principles throughout its operations and sphere of influence, and to communicate on its progress.”[4] Principle I requires a company to comply with all applicable laws and internationally recognized human rights while Principle 2 requires that companies are not complicit in human rights abuses.[5] The remaining eight principles provide specific provisions for labor, environment, and anti-corruption.[6] Even though the Compact is a voluntary initiative, by signing up, companies must produce an annual “Communication on Progress” (COP) that details their work to embed the ten principles in their activities. So far, 21,493 companies from 162 countries have signed up for the Global Compact.[7]
B. The (Draft) Norms on the Responsibilities of Transnational Corporations (2003)[8]
In 2003, a Working Group chaired by Professor David Weissbrodt submitted the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights” (the “Norms”) to the UN Sub-Commission on the Promotion and Protection of Human Rights. The Norms were the first attempt to create human rights norms specifically aimed at transnational corporations.
There were specific Norms addressing non-discriminatory treatment, security of persons, rights of workers, anti-bribery provisions, consumer protection, and environmental protection. The document also identifies 14 obligations and 5 provisions aimed at implementing the Norms. The Norms were subject to “periodic monitoring and verification” by the UN, including by existing mechanisms, and a mechanism to be created regarding the application of the Norms. Even though the Norms were regarded as a landmark step, they were not approved by the UN Commission on Human Rights because they faced opposition from several states and the business community.[9]
C. The UN Guiding Principles on Business and Human Rights (2011)[10]
Following the failure of the Norms, the former UN Secretary General Kofi Annan appointed Harvard Professor John G. Ruggie as a Special Representative on Business and Human Rights. This led to the creation of the UN Guiding Principles on Business and Human Rights (the “Guiding Principles”). The Guiding Principles are based on three pillars: (i) a state bears the duty to protect against human rights abuses within its territory, (ii) a corporation must respect human rights and address adverse human rights impacts with which they are involved, and (iii) a state has the primary responsibility to remedy any human rights abuses within its territory.
While the Guiding Principles do not have a formal accountability mechanism,[11] they envision that “effective grievance mechanisms” are available based on multi-stakeholder and other collaborative initiatives. As a largely voluntary initiative, the Guiding Principles are often invoked by parties in their international pleadings to argue the failure of due diligence (see Bear Creek Amicus Reply[12] or Guatemala Counter-Memorial)[13] or the need for human rights assessment (Metlife Amicus).[14]
D. Draft UN Legally Binding Instrument to Regulate Activities of Transnational Corporations (2021)[15]
Despite the failure of the Norms, since 2014, there have been efforts to create a Legally Binding Instrument to Regulate the Activities of Transnational Corporations and Other Business Enterprises (the “Instrument”). The Open-Ended Intergovernmental Working Group (OEIGWG) created by the UN Human Right Council drafted this Instrument. The Draft makes clear that the purpose of this Instrument is to clarify the human rights obligations of business enterprises and facilitate the implementation of these obligations (art. 2.1). The Instrument places primacy of obligation on state parties who are required to “regulate effectively the activities of all enterprises within their territory, jurisdiction or otherwise under their control” (art. 6.1).
Art. 16 provides that states shall take all “necessary legislative, administrative or other action including the establishment of adequate monitoring mechanisms” to ensure implementation. Indeed, the Instrument envisions the creation of an International Fund for Victims to provide legal and financial aid (art. 15.7).
II. Efforts within National Law
We see a nascent effort to move obligations from voluntary regimes to obligations in domestic law. At this stage, the obligations are limited; however, with greater pressures from the public and with concerns about climate change, we might see further action. Listed below are examples of human rights obligations on businesses.
A. US: Uyghur Forced Labor Prevention Act (UFLPA)
Since the 1930 Tariff Act, the US has had legislation prohibiting products created by forced labor from entry into the country. However, carveouts allowed nearly all products to escape inquiry by the Government.
Over the past few years, the US Government has sought to enforce its regulations prohibiting the import of goods produced using forced labor through its increasing use of Withhold Release Orders by the US Customs and Border Protection Agency (“USCBP”) and its implementation of the Uyghur Forced Labor Prevention Act (“UFLPA”).[16]
Many Guidance documents on complying with these regimes reference the Guiding Principles and other international best practices such as human rights due diligence as methods of ensuring that a company’s supply chains practices comport with their responsibilities under the law.
The UFLPA came into effect on 21 June 2022.[17] It expands the scope of the US Government’s approach to prohibiting goods which it suspects were produced using forced labor from entering the US market.[18] The enforcement plan for the UFLPA creates a rebuttable presumption that all goods (or component parts of such goods) imported into the US that have a nexus to the Xinjiang region of China, or a list of restricted entities that use Uyghur labor, were produced under conditions of forced labor.[19]
The enforcement guidance states that US Customs and Border Protection “will implement an enforcement plan that identifies and interdicts goods from high-priority sectors that are found to have a nexus to production in Xinjiang, subsidiaries and affiliates of Xinjiang Production and Construction Corps, and any other producing entity found to utilize forced labor via a government-labor scheme.”[20]
The UFLPA applies to all imports into the US and, importantly, does not contain a de minimis exception. Thus, even if one button on a jacket has a nexus to Xinjiang, this shipment would be prohibited from entry. It also applies to manufacturers that use Uyghur labor in other areas of China if they are on the list of restricted entities. Its geographical scope is broader than the Xinjiang region.
If USCBP determines that products are within the scope of the Act, the evidentiary burden to rebut the presumption of forced labor is extremely high. There have not yet been any reports of importers successfully rebutting the presumption of forced labor. Rather, importers have focused on demonstrating to the USCBP that the subject goods do not fall within the scope of the Act, i.e., they have no nexus to Xinjiang and/or Uyghur labor.
B. Due Diligence Regimes in EU Countries
The European Commission has recently proposed a prohibition on the import and/or export of products that were produced using forced labor.[21] Although some EU countries require multinationals of sufficient size to establish a human rights due diligence framework to identify and prevent human rights abuses, others, including Germany[22]and France,[23] have implemented human rights due diligence regimes for international supply chains.
Companies which are subject to the regulations by virtue of their size (e.g., employee numbers or revenue) must conduct their operations in accordance with governments’ expanding ESG priorities. These companies, for instance, should develop contractual frameworks with their counterparties that solidify these requirements as obligations, particularly when their counterparties are not subject to similar ESG-type regulation. For example, Section 6 of the German Due Diligence law discusses implementing: (i) contractual assurances that suppliers will comply with human rights obligations; and (ii) contractual control mechanisms when abuses are discovered.
In February 2022, the European Commission made public its Draft Directive on the proposed standard for due diligence on human rights and environmental issues (the “EU Draft Directive”).[24] The EU Draft Directives applies to EU companies which have either (i) more than 500 employees and a net worldwide turnover of EUR 150 million, or (ii) more than 250 employees and a net world turnover of more than EUR 40 million provided 50% of the net turnover was in a “high risk” sector (such as textiles, clothing and footwear, agriculture, forestry, fisheries, and extraction of mineral resources among others). It also applies to non-EU companies which have either (i) net turnover of more than EUR 150 million in the EU, or (ii) net turnover of more than EUR 40 million but not more than EUR 150 million, provided that at least 50% of its net worldwide turnover was in a “high-risk” sector (art. 2). The EU Draft Directives lay down rules (i) on obligations for companies regarding actual and potential adverse impacts on human rights and the environment with respect to their operation, their subsidiaries, and the value chain operations, and (ii) on liability for violations of the obligations. The EU Draft Directive will be enforced by Member States that create supervisory authorities. These supervisory authorities can take remedial action, including the imposition of sanctions. When pecuniary sanctions are imposed, they are based on a company’s turnover (art. 20).
Conclusion
ESG obligations at the international and regional level remain at a nascent stage. With increased public focus and efforts by both the UN and the EU, however, we will likely see the creation of binding obligations that companies managing international supply chains will have to consider.
[*] Patrick Miller is the Founding Attorney of Impact Advocates APC, a law firm focused on international commercial dispute resolution, responsible supply chains and ESG-related matters. He is a strong advocate for ESG & social businesses and passionate about assisting these companies when they encounter commercial disputes. Kabir Duggal is an SJD Candidate at Harvard Law School and a Lecturer-in-Law at Columbia Law School. The views expressed are personal and the authors reserve the right to change the positions stated herein.
[1] See Colin Mayer, Leo E. Strine Jr. & Jaap Winter, 50 Years Later, Milton Friedman’s Shareholder Doctrine Is Dead, Fortune (Sept. 13, 2020), https://fortune.com/2020/09/13/milton-friedman-anniversary-business-purpose/.
[2] Scholars have referred to a “Galaxy of Norms” which includes both international conventions and national ‘hard law’ obligations. See, e.g., Elise Groulx Diggs, Milton C. Regan & Beatrice Parance, Business and Human Rights as a Galaxy of Norms, 50 Geo. J. Int’l L. 309 (2019).
[3] The Ten Principles of the UN Global Compact, United Nations, https://unglobalcompact.org/what-is-gc/mission/principles.
[4] About the UN Global Compact: Frequently Asked Questions, United Nations Global Compact, https://unglobalcompact.org/about/faq.
[5] The Ten Principles of the UN Global Compact, supra note 3, at Principles 1 and 2.
[6] Id. at Principles 3 to 10, available at: https://unglobalcompact.org/what-is-gc/mission/principles.
[7] United Nations Global Compact Website Cover page, U.N. Global Compact, https://unglobalcompact.org/.
[8] U.N. Econ. and Soc. Council, Sub-Comm’n on the Promotion and Prot. of Hum. Rts., Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003), https://digitallibrary.un.org/record/501576?ln=en#record-files-collapse-header.
[9] Pini Pavel Miretski ¶ Sascha-Dominik Bachmann, The UN ‘Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’: A Requiem, 17 Deakin L.R. 5, 8-9 (2012) (“Such explicit support for the Norms was accompanied by often fierce opposition from various states and the majority of the business community. Such opposition arose from the moment the Norms were formally introduced as a discussion paper after their approval by the Sub-Commission. Most states expressed strong reservations, emphasizing their determination not to depart from the traditional framework of international law, which stresses the central and pivotal role of the state as a legal subject of public international law. The Norms were eventually abandoned in 2005 and the task of regulating transnational corporate accountability was transferred to other UN organs.”) (internal citation omitted).
[10] Guiding Principles on Business and Human Rights, U.N. Office of the High Comm’r For Hum. Rts. (2011),https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf.
[11] In contrast, the 2011 OECD Guidelines for Multinational Enterprises provides for “National Contact Points” “to further the effectiveness of the Guidelines by undertaking promotional activities, handling enquiries and contributing to the resolution of issues that arise relating to the implementation of the Guidelines . . .” as well as the “Investment Committee” that shall “periodically or at the request of an adhering country hold exchanges of views on matters covered by the Guidelines and the experience gained in their application.” See Procedural Guidance, OECD Guidelines for Multinational Enter. 68 (2011), https://www.oecd.org/daf/inv/mne/48004323.pdf.
[12] Bear Creek Mining Corp. v. The Republic of Peru, ICSID Case No. Arb/14/21, Bear Creek’s Reply to the Amicus Curiae Submissions of Dhuma and Dr. Lopez ¶ 18 (Aug. 18, 2016).
[13] Daniel W. Kappes and Kappes, Cassiday and Associates v. Republic of Guatemala, ICSID Case No. ARB/18/43, Guatemala’s Counter-Memorial ¶¶ 1, 152 (Dec. 7, 2020).
[14] MetLife, Inc., MetLife Servicios S.A. and MetLife Seguros de Retiro S.A. v. Argentine Republic, ICSID Case No. ARB/17/17, Amicus Curaie Submission (Mar. 30, 2021), ¶ 90.
[15] Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Transnational Corporations and Other Business Enterprises, U.N. Open-Ended Intergovernmental Working Grp. on Transnat’l Corps. and Other Bus. Enter. With Respect to Hum. Rts. (2021), https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/LBI3rdDRAFT.pdf.
[16] Forced Labor, U.S. Customs and Border Prot., https://www.cbp.gov/trade/forced-labor.
[17] Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China: Report to Congress, U.S. Dept. Homeland Sec. (June 17, 2022), at 8, https://www.dhs.gov/sites/default/files/2022-06/22_0617_fletf_uflpa-strategy.pdf.
[18] Id.
[19] Id. at v (“The UFLPA establishes a rebuttable presumption that goods mined, produced, or manufactured wholly or in part in Xinjiang or by an entity on the UFLPA Entity List are prohibited from U.S. importation under 19 U.S.C. § 1307.”).
[20] Id. at 19.
[21] Philip Blenkinsop, EU Proposes Banning Products Made With Forced Labour, Reuters (Sept. 14, 2022), https://www.reuters.com/markets/europe/eu-proposes-banning-products-made-with-forced-labour-2022-09-14/.
[22] See Lieferkettensorgfaltspflichtengesetz [LkSG] [Act on Corporate Due Diligence Obligations in Supply Chains], July 16 2021, https://www.bmas.de/SharedDocs/Downloads/DE/Internationales/act-corporate-due-diligence-obligations-supply-chains.pdf;jsessionid=71731FA3BE835852C39F24D5BEFF8C60.delivery1-replication?__blob=publicationFile&v=2.
[23] See French Duty of Vigilance Law – English Translation, Bus. and Hum. Rts. Res. Ctr. (Dec. 14, 2016), https://www.business-humanrights.org/en/latest-news/french-duty-of-vigilance-law-english-translation/.
[24] Just and Sustainable Economy: Commission Lays Down Rules for Companies to Respect Human Rights and Environment in Global Value Chains, Eur. Comm’n (Feb. 23, 2022), https://ec.europa.eu/commission/presscorner/detail/en/ip_22_1145.
Jan 19, 2023 | Content, Online Scholarship, Perspectives
SOFIA OLOFSSON
I. Introduction
In its judgement on 23 June 2022, the African Court of Human and Peoples’ Rights (the African Court) ruled that the Kenyan government must pay reparations for evicting Indigenous Ogiek people from their ancestral lands in the Mau Forest.[1] This landmark win for Indigenous Ogiek sets a precedent for other forcefully removed Indigenous people across Africa. Before diving into the significance of this judgement, an overview of the state of the law for the right to land contextualises the African Court’s decision.
II. The Right to Land
Many have drawn connections between the right to the land of Indigenous people and the right to life. Numerous cases from Africa support this notion. In the Democratic Republic of Congo, the population of the Batwa has halved in less than fifty years because its people cannot adapt to a lifestyle outside of their traditional forest-dwelling.[2] In Kenya, the life expectancy of the Ogiek has likewise significantly decreased due to difficulties adapting to a new way of life outside of traditional forest-dwelling.[3] In Tanzania, the Maasai “feel especially attached to the land”[4] because “without it, they cannot survive, especially since they do not also have the skill necessary for survival outside the pastoral sector.”[5]
According to human rights law instruments, the right to property encompasses land and land use. The Universal Declaration of Human Rights refers to the right to property, noting that “[e]veryone has the right to own property, alone as well as in association with others and no one shall be arbitrarily deprived of his or her property.”[6] Article 14 of the African Charter on Human and Peoples’ Rights (the African Charter) includes the protection of the legitimate expectation to obtain and peacefully enjoy the property of an individual, a group, and a people.[7] It also protects traditional custom and “land and other natural resources held under communal ownership” with imposed duties on the State to ensure the security of ownership to rural communities.[8] However, the protection of property is not absolute, and the State can give concessions in cases of public need or when it is in the general interest of the community.[9]
While the Indigenous and Tribal Peoples Convention 169[10] and the United Nations Declaration on the Rights of Indigenous Peoples recognize the indigenous right to land, the African Charter does not explicitly recognize it. Fortunately, though, the interpretation of other general rights in the African system helps deal with this lack of explicit indigenous rights. In recognizing the rights of Indigenous peoples, the collective rights to both wealth and resources in article 21[11] of the African Charter and the right to development in article 22,[12] as well as the right to property from article 14,[13] are of utmost importance.
This overview illustrates that the protection of Indigenous peoples’ right to land goes beyond the protection of property. If the right to land of Indigenous people closely relates to the right to life, this right should be non-derogatory and unable to be suspended in a state of emergency. Unfortunately, this is not the case: some states actively challenge Indigenous rights to land and forcefully-remove peoples to gain exclusive land ownership.
III. African Commission on Human and Peoples’ Rights v. Republic of Kenya
Since British colonial domination, the Ogiek have been forcibly displaced from their native grounds. Today, the Kenyan government asserts that evictions prevent deforestation of the Mau Forest, the largest remaining indigenous forest in Kenya, and that the land is under its authority for conservation purposes. The Mau Forest has been the subject of a 13-year legal dispute between the Indigenous Ogiek people and the Kenyan government over its ownership. In 2009, the community filed a petition to the African Commission on Human and Peoples’ Rights following a 30-day eviction notice.
In 2017, the African Court determined that Kenya breached seven articles of the African Charter due to evictions, namely: Article 1, Obligations of Member States; Article 2, The Right to Non-Discrimination; Article 8, The Right to Religion; Article 14, The Right Property; Article 17(2) and (3), The Right to Education; Article 21, Natural Resources; and Article 22, The Right to Development.[14] Finally, on 23 June 2022, the Court delivered its ruling on the issue of reparations.[15]
The African Court unanimously rejected the arguments of the Kenyan government and, in response to its 2017 ruling, ordered the State to compensate the Ogiek community $849,256 in moral damages[16] and $491,295 in material damages.[17] The Court refused to accept that forest protection justified eviction of the Ogiek. Rather, the Court found that the degradation of the Mau Forest resulted from other factors, including incursions, allocation to others, and logging.
This decision instructs Kenya to give the Ogiek community title to their land in the Mau Forest and consult with them on future development projects. Kenya must also work with the Ogiek to develop land-sharing and access agreements. This ruling emphasizes that the Kenyan government must “undertake an exercise of delimitation, demarcation, and titling to protect the Ogiek’s right to property. Securing their right to property, especially land, creates a conducive context for guaranteeing their continued existence.”[18]
Another significant milestone is the recognition of the Ogiek as an Indigenous people. The Court said that Kenya must take measures to guarantee the full recognition of the Ogiek as an Indigenous people of Kenya in an effective manner.[19]
Although the Court requested a report from Kenya on the implementation of its orders within 12 months, executing the ruling will be challenging, given that the Court does not have direct enforcement power over the Kenyan government.
IV. Practical Significance of the Case
The reparation judgement solidifies the historic verdict of 2017, which upheld the rights of the Ogiek over their ancestral land in Mau Complex. Considering the government-lead conservation practices that harm Indigenous peoples, this ruling also serves as a precedent for other pending cases.
The Batwa in the Democratic Republic of the Congo, the Maasai in Tanzania, and the Endorois in Kenya are only a few examples of Indigenous communities that have brought cases to the African Commission. All these cases concern violent evictions of Indigenous peoples from their lands to create protected areas, a global practice known as fortress conservation.
Despite victory in this case, there are many challenges ahead. The Maasai, for instance, can no longer directly access the African Court since Tanzania withdrew from it. Also, the experience of the Endorois illustrates enforcement challenges: 12 years after the African Commission ruling, the Endorois assert that Kenya has failed to follow through on the core recommendations of the Commission, including the right to land, access for ceremony and animal grazing and financial damages. [20]
The Court ruling indicates how governments should act to make amends to Indigenous populations. The Court made it clear that the survival of Indigenous people depends on safeguarding their rights to land and natural resources. Therefore, the Kenyan government must follow this decision and consult with the Ogiek in good faith and through their designated representatives to restitute the land, implement the remaining verdict, and restore the Ogiek’s rights.[21] Hopefully, this decision will provide a solid framework for analysing claims over Indigenous lands.
[1] The Matter of Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, Application No. 006/2012, ¶ 64 (June 23, 2022), https://www.african-court.org/cpmt/storage/app/uploads/public/62b/aba/fd8/62babafd8d467689318212.pdf.
[2] Albert Kwokwo Barume, Land Rights of Indigenous Peoples in Africa, IWGIA (2010), https://www.iwgia.org/images/publications/0002_Land_Rights_of_Indigenous_Peoples_In_Africa.pdf.
[3] Id.
[4] Id. at 56.
[5] Id.
[6] Universal Declaration of Hum. Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 17.
[7] Afr. Comm’n H.P.R., Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples Rights, ¶ 53
(1986).
[8] Id. ¶ 54.
[9] Id. ¶ 55.
[10] International Lab. Org., Indigenous and Tribal Peoples Convention, 27 June 1989, C169.
[11] Organization of Afr. Unity, Afr. Charter on Hum. and Peoples’ Rts., 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), art. 21.
[12] Id. art. 22.
[13] Id. art. 14.
[14] Organization of Afr. Unity, Afr. Charter on Hum. and Peoples’ Rts., 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), art. 8, 14, 17, 21, 22.
[15] Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, No. 006/2012, Decision, Afr. Comm’n H.P.R., ¶ 144-45 (May 26, 2017), https://www.escr-net.org/sites/default/files/caselaw/ogiek_case_full_judgment.pdf.
[16] Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, No. 006/2012, Afr. Comm’n H.P.R., ¶ 93 (June 23, 2022), https://www.african-court.org/cpmt/storage/app/uploads/public/62b/aba/fd8/62babafd8d467689318212.pdf.
[17] Id. ¶ 77.
[18] Id.¶ 115.
[19] Id. ¶ 126.
[20] Joseph Lee, Indigenous Endorois Fight for Their Land and Rights at UN, Grist (May 4, 2022), https://grist.org/global-indigenous-affairs-desk/indigenous-endorois-of-kenya-fight-for-their-land-and-rights-at-un/>.
[21] Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, No. 006/2012, Judgment on Reparations, Afr. Comm’n H.P.R., ¶ 144-45 (June 23, 2022), https://www.african-court.org/cpmt/storage/app/uploads/public/62b/aba/fd8/62babafd8d467689318212.pdf.
Cover photo: Doron, CC BY-SA 3.0 license.
Dec 24, 2022 | Content, Online Scholarship, Perspectives
PAVITRA KHAITAN & JVALITA KRISHAN*
I. Introduction
In the context of the rights of refugees within the framework of humanitarian and customary international law, the principle of non-refoulement is an essential form of protection. Non-refoulement “prohibits states from removing or transferring individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment, or other serious human rights violations.”[1] The 1951 Convention Relating to the Status of Refugees has enshrined the prohibition of refoulement in treaty law under Article 33. This provision bans a contracting party from returning a refugee in any manner to the borders of territories that are known to threaten the life and freedom of said refugee “on account of their race, religion, nationality, membership of a particular social group, or political opinion.”[2] Clause 2 of Article 33 provides for two exceptions if there are reasonable grounds for either regarding a refugee as a threat to the security of the country or the refugee as a danger to its community upon a final judgment convicting them of a serious crime.[3] This paper explores the importance of the non-refoulement principle and the complex ways in which states bypass its implementation. It also sets out to prove non-refoulement as an obligation erga omnes partes for state parties to the Convention. The resultant inference is that state parties to the 1951 Refugee Convention may bring a suit to the International Court of Justice (ICJ)[4] against any nation in violation of the principle of non-refoulement.
II. Non-refoulement Compliance During COVID-19
The non-refoulment principle has been evaded by several states in recent years as governments halted migration procedures to prevent the spread of COVID-19. These policies left no exception for those seeking refuge.[5] For example, the Belgian government introduced measures effectively suspending refugees’ right to seek refuge on account of the coronavirus. It then created an online registration system that caused lengthy wait times for refugees seeking an appointment with concerned officials.[6] And several reports and interviews of asylum-seekers conducted by Human Rights Watch show that Greek law enforcement officials coordinated returns of asylum-seekers to Turkey, where they were then placed on small inflatable rafts and set adrift in Turkish territorial waters.[7] Both these countries are signatories to the Convention. The U.N. High Commissioner for Refugees (UNHCR) opined in its advisory capacity that non-refoulement constitutes a non-derogable provision of international refugee protection but that the application of the two categories of exceptions whereby the refugee is considered a danger to the security of the country or a final judgement convicting the refugee of a serious crime renders them a danger to the community of the country requires an individualised determination by each country in which the refugee seeks asylum.[8]
However, the exceptions do not extend to a pandemic circumstance that warrants a blanket policy of turning away all refugees without assessing their claims.[9] UNHCR declared that “the imposition of a blanket and indefinite measure against the admission of all asylum seekers, or of those of a particular nationality, could lead to a risk of the violation of the principle of non-refoulement.”[10] The UNHCR further added that in case of a confirmed public health crisis such as the ongoing pandemic, alternative available measures such as the implementation of quarantine and isolation to manage the safe arrival of asylum-seekers must be considered to continue safeguarding the right to seek asylum and the principle of non-refoulement.[11] Thus, states that are parties to treaties with provisions relating to non-refoulement such as the 1951 Refugee Convention and Protocol of 1967 relating to the Status of Refugees (which creates an obligation to process asylum claims) must prioritise compliance with their treaty obligations by ensuring that refugees are not returned to their countries of origin if such return would pose a threat to their well-being while also imposing pandemic health protocol measures.[12] The least a state under these obligations can do is grant the refugee temporary admission until states take on greater collective responsibility to share the role of the protection of refugees.[13]
III. General Methods to Evade Compliance
Mechanisms utilized by states to restrict the entry of asylum-seeking refugees do not only limit themselves to pandemics. Consider the track record of states that are parties to treaties containing a refoulement prohibition and refugee rights. Belgium in the 1990s had a ninety percent rejection rate of asylum-seekers at its borders and an extraordinarily high threshold of eligibility aimed at preventing illegal immigrants. These barriers were so severe that genuine refugees were discouraged from approaching the state through elaborate institutional mechanisms and preferred entering illicitly.[14] Similarly, members of the European Union (EU) have imposed unrealistic visa requirements for states that produce refugees such as Romania, Sri Lanka, and Iraq.[15] The Schengen Border Control (SBC) regulation which governs the border control of persons crossing the external borders of EU member states is silent on the definition of ‘refugees and persons seeking international protection.’[16] The effect of this is that refugees are assimilated into the general ‘third-country national’ category and are subjected to criterion under Article 6 of the SBC which include possession of valid travel documents and proof of their intention and ability to return to their country of origin prior to the expiry of their permitted duration of stay.[17] Such conditions imposed on refugees whose documentation status and departure from the country often remains indeterminable, results in the pre-emptive gatekeeping of persons of specific nationalities and their right to seek asylum. The phenomenon of refugees irregularly moving from the country where they have received protection to seek permanent settlement or asylum elsewhere came about owing to the unavailability of long-term educational and employment opportunities that promote local integration and resettlement of refugees.[18] The concept of “safe third country” was created to address the destabilising effect of such irregular movement on the organised international efforts to protect refugees[19] but conveniently denies the vetting of asylum requests due to the mere fact of such a refugee having previously transited a country deemed safe.[20] Germany’s policy is one such example that sent refugees back to the transit country without any verification of the existence of proper asylum procedures and protection of refugees.[21]
The “non-suspensive effect” is another problematic mechanism by which states like Austria, France, and Sweden absolve themselves of the responsibilities of integrating refugees into their jurisdiction. The non-suspensive effect arises because refugees who appeal the decision denying them entry cannot remain in the country during the pendency of the appeal, and are therefore forced to remain illegally as their lives are threatened in their country of origin.[22] States even go so far as to confine their interpretation of the definition of refugees to only include those facing persecution from the state,[23] when reality many asylum-seekers face life-threatening danger from non-state agents such militant extremist groups. The currently unrecognised de facto Taliban government that effectively reoccupied Afghanistan in 2021 is just one example.[24] Nowhere in Article 33 does the provision specify that the threat to the life and freedom asylum-seekers must emerge from state persecution alone. Such a restrictive understanding of the prohibition of non-refoulement is violative of a refugee’s right to seek asylum and find recourse in state parties to the convention. It is also inconsistent with the purpose of the Convention: to safeguard refugees’ rights.
State parties to the Convention bend their conduct to cater to versions of non-refoulement that favour their interests. This makes it crucial to ensure a level of compliance to prevent arbitrary violations of human rights. Before discussing whether the non-refoulement principle is an obligation erga omnes partes, it is essential to gain a clear understanding of the concept. In contrast to obligations erga omnes owed to the international community as a whole, obligations erga omnes partes are specifically confined to a group of states—typically state parties to a multilateral convention with a common interest.[25] The common interest implies that violations of such obligations create a legal interest in all other state parties to ensure the protection of the associated rights.[26]
IV. The Test to Establish an Erga Omnes Partes Obligation
In Belgium v. Senegal, the International Court of Justice laid down the test to determine whether an obligation is an obligation erga omnes partes.[27] The Court must consider whether being a state party to the Convention is sufficient for a State to be able to bring a claim to the court regarding the violation of an obligation of the treaty. Determining whether an obligation constitutes an obligation erga omnes partes requires ascertaining first, the object and purpose of the treaty; second, that the state parties have a common interest in compliance with the obligations laid down by the treaty; and third, whether the particular obligation in question was incorporated to fill this purpose of the treaty as determined.[28] We will now apply this test to the obligation of non-refoulement under the Refugee Convention.
First, the object and purpose of the Refugee Convention is to provide refugees with basic rights and freedoms. The Vienna Convention on the Law of the Treaties allows emphasis to be placed on the Preamble of a treaty whilst determining its object and purpose.[29] Inspecting the preamble to the Refugee Convention, it declares that all state parties to the Convention must endeavour to assure refugees the exercise of their fundamental rights. The object and purpose of the Convention is hence to assure the widest possible exercise of fundamental rights and liberties of refugees through international cooperation.[30] The adoption of this treaty was to guarantee the refugees these rights in human and equitable terms.[31] Further, the Vienna Convention allows us to place reliance on the preparatory material to the convention.[32] The Travaux Préparatoires of the Convention showed that there was a recognition that the foundation of the Convention is to place refugees on equal footing with the citizens of the countries of refuge.[33] The intention of the Convention includes the will of the state parties to be bound by the principle of non-discrimination with reference to the treatment of refugees.[34] The returning of a refugee to a nation where his life or freedom would be threatened on account of his race or religion would be equivalent to delivering him into the hands of his persecutors. We can thereby conclude that the object and purpose of the Refugee Convention is to provide refugees with their basic human rights and liberties.
Second, we must determine that state parties have a common interest in complying with the obligations laid down by the treaty. In Belgium v. Senegal, the International Court of Justice held that all parties to the Convention Against Torture have a “common interest” to comply with the obligation to prosecute alleged perpetrators of acts of torture even if the alleged torturer or victim have no connection with the state parties.[35] These states can be said to have a “legal interest” in these erga omnes partes obligations. The obligations in question are owed to all parties of the convention.[36] Applying the same reasoning to the Refugee Convention, states have a common interest in the protection of fundamental human rights thus including an interest to protect the fundamental rights and liberties of refugees. Human rights treaties are of such nature that a state has obligations to all state parties, notwithstanding their nexus to the State violating the treaty.[37] This provides state parties with an obligation to call upon state parties and demand compliance.[38] Human rights treaties are not concluded on the basis of reciprocity, instead they are “series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties.”[39] From this, one can conclude that all human right treaties are erga omnes partes in nature.[40]
Further, the International Court of Justice has previously compared the provisions of the Convention Against Torture to the Convention of the Prevention and Punishment of the Crime of Genocide since in both conventions “the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention.”[41] The same is true of the Refugee Convention, where the common interest element is the protection of fundamental human rights for refugees. This common interest to ensure that any violator who does not abide by the objective of the refugee convention does not enjoy impunity directly implies that obligations under the Convention are owed by each state party to all the other state parties.[42] Obligations created to protect the collective interest of a group of states are established with the intention of “transcending the ‘sphere of the bilateral relations of the State parties,’” thereby creating obligations of a multilateral nature.”[43] The common interest in compliance with the relevant obligations of the Refugee Convention gives rise to the entitlement of each state party to the Convention to invoke the responsibility of another state to make a claim concerning the cessation of an alleged breach by another state party.[44] Since no special interest is required for this purpose, the relevant obligations can be said to be of an erga omnes partes character.
Third, the obligation of non-refoulement can be incorporated to fulfil the purpose of the Refugee Convention. Obligations erga omnes partes are those obligations that are so integral to the subject and purpose of the treaty that no reservations or derogations are permissible.[45] The Refugee Convention is underpinned by the fundamental principle of non-refoulement.[46] Article 33 lays down this paramount obligation. And as per Article 42, no reservations or derogations are permissible to Article 33. It is so paramount that the UNHCR has noted that “the principle of non-refoulement is a norm of customary international law based “on a consistent practice combined with recognition on the part of nations that the principle has a normative character.”[47] The principle of non-refoulement is the cornerstone of asylum and of international refugee law.[48] As stated in Article 33, the Convention prohibits the return or expulsion of refugees (“refouler”) to a country where the refugee’s life or freedom is threatened.[49] The party States to the 1951 Convention and the 1961 Protocol have acknowledged that “the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement,” as embedded in customary international law.[50] The protection of the principle of non-refoulement is essential to defending the common interest of the exercise of basic fundamental rights as established in the Convention. If the principle is violated, there exists a “real and imminent risk of irreparable prejudice” of the values and interests advocated by the treaty.[51]
The object and purpose of the Refugee Convention may be frustrated by a breach of this principle by any one state. The fundamental nature of non-refoulement as a cardinal principal has been reaffirmed by the Executive Committee of the UNHCR and the United Nations General Assembly.[52] In 1980, the UNHCR Executive Committee [r]eaffirmed the fundamental character of the generally recognized principle of non-refoulement.’[53] Its 1991 conclusions reiterated ‘the primary importance of non-refoulement and asylum as cardinal principles of refugee protection’.[54] The vitality of non-refoulement within the aegis of refugee protection has also been express by the United Nations General Assembly in multiple resolutions.[55] The obligation of states to abide by the principle of non-refoulement and not send refugees back to the host nation when there exists danger to the refugee’s life is essential to fulfilling the aim of the Refugee Convention. Therefore, the principle is of the erga omnes partes nature insofar that all State parties ought to have a legal interest in others’ compliance with this obligation.[56]
V. Conclusion
The proving of non-refoulement as an obligation erga omnes partes in the capacity of the Refugee Convention automatically mandates that any nation party to the convention may bring a nation in violation of this obligation to the International Court of Justice. It confers on state parties to the convention, therefore, an obligation to not turn away any refugees seeking aslyum. With this establishment, the enforceability of non-refoulement obligations is thus enhanced, enabling a better likelihood of the safeguarding of persecuted refugees’ rights in the tumultuous global socio-political landscape.
[1]The Principle of Non-Refoulement Under International Human Rights Law, United Nations High Comm’r for Hum. Rts.,https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf .
[2] Convention Relating to the Status of Refugees 1951 Art 33, Apr. 22, 1954, 189 U.N.T.S 150.
[3] Id.
[4] Id. at Art. 38.
[5] See Oona Hathaway, Covid-19 and International Law: Refugee Law- The Principle of Non-Refoulement, Just Sec. (Nov. 30, 2020), https://www.justsecurity.org/73593/covid-19-and-international-law-refugee-law-the-principle-of-non-refoulement/.
[6] See id.
[7] Greece: Investigate Pushbacks, Collective Expulsions. EU Should Press Athens to Halt Abuses, Hum. Rts. Watch (Jul. 16, 2020), https://www.hrw.org/news/2020/07/16/greece-investigate-pushbacks-collective-expulsions .
[8] See Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, Advisory Opinion, United Nations High Commissioner for Refugees, (Jan. 26, 2007).
[9] See Hathaway, supra note 4.
[10] UNHCR Legal Considerations with Regard to the EU Commission´s Guidelines for Border Management Measures to Protect Health and Ensure the Availability of Goods and Essential Services, United Nations High Comm’r for Refugees (Mar. 18, 2020).
[11] Id.
[12] See Hathaway, supra note 4.
[13] See Salvo Nicolosi, Non-refoulement During Health Emergency, EJIL: Talk! (May 14, 2020), https://www.ejiltalk.org/non-refoulement-during-a-health-emergency/.
[14] See Christiane Berthiaume, Measures Imposed by European Governments to Stem the Tide of Illegal Immigrants are Threatening the Very Foundations of Asylum, Refugees, 1 Sept. 1995, https://www.unhcr.org/en-in/publications/refugeemag/3b543cb84/refugees-magazine-issue-101-asylum-europe-asylum-under-threat.html .
[15] See id.
[16] Juan Fernando López Aguilar, Humanitarian Visas, Eur. Parliamentary Rsch. Serv. (Jul. 2018)https://www.europarl.europa.eu/cmsdata/150782/eprs-study-humanitarian-visas.pdf 19.
[17] Id at 20.
[18] See Conclusions Adopted by the Executive Committee on the International Protection of Refugees, United Nations High Comm’r for Refugees (Dec. 2009) https://www.unhcr.org/en-my/578371524.pdf 77
[19] Id.
[20] See Nicolosi, supra note 13.
[21] Id.
[22] Id.
[23] Id.
[24] See Ben Saul, “Recognition” and the Taliban’s International Legal Status, Int’l Ctr. for Counter-Terrorism (Dec. 15, 2021) https://icct.nl/publication/recognition-talibans-international-legal-status/.
[25] See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgement, 2012 I.C.J 422 ( Jul. 20).
[26] See id.
[27] Id.
[28] Id.
[29] See Vienna Convention on the Law of the Treaties art. 31, May 23, 1969, 1155 U.N.T.S 331.
[30] See Economic and Social Council Res. 1950/319 (Aug. 16, 1950).
[31] See U.N. ESCOR, 11th Sess., 158th mtg., U.N. Doc. E/AC.7/SR.158 (Aug. 15, 1950).
[32] See Vienna Convention on the Law of the Treaties, supra note 29.
[33] See Paul Weis, The Refugee Convention, 1951, The Travaux Préparatoires Analysed with a Commentary by the Late Dr. Paul Weis (1995).
[34] Id.
[35] Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), supra note 25.
[36] Id.
[37] See H.R.C. General Comment No. 31, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004), ¶2; Dinah Shelton, The Oxford Handbook of International Human Rights Law 510 (2013); Walter Kälin and Jörg Künzli, The Legal Nature of Human Rights Obligations, in The Law of International Human Rights Protection (2d. ed., 2019) 86.
[38] See id.
[39] Jean S. Pictet, The Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: Int’l Comm. Of the Red Cross ed., 1958), comments on common Article 1.
[40] Erika de Wet, The International Constitutional Order 55 (Cambridge University Press ed., 2008).
[41] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, 1951 I.C.J. Rep 15, ¶ 23 (May 28).
[42] See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), supra note 25.
[43] Linos-Alexander Sicilianos, The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility, 13 Eur. J. Int’ L. 1127, 1135 (2002).
[44] See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), supra note 25.
[45] Vienna Convention on the Law of Treaties art. 19(c), May 23, 1969, 1155 U.N.T.S 331; Pok Yin Stephenson Chow, On Obligation Erga Omnes Partes. 52 Georgetown J. Int’l L. 469 (2020).
[46] Weis, supra note 33.
[47] Commentary on The Refugee Convention 1951 Articles 2-11, 13-37, United Nations High Comm’r for Refugees (1997).
[48] United Nations High Comm’r for Refugees, Note on the Principle of Non-refoulement, U.N. Doc EC/SCP/2 (23 August 1977).
[49] Refugee Convention 1951 art 33, Apr. 22, 1954, 189 U.N.T.S 150.
[50] Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva, Switzerland, 12-13 Dec. 2001, U.N. Doc. HCR/MMSP/2001/09, (16 Jan. 2002).
[51] Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Provisional Measures, 2017 I.C.J. Rep. 104, ¶ 63 (Apr. 19).
[52] UNHCR EC Conclusion No.79 ¶ (i) (1996); G.A. Res. 51/75, ¶ 3 (Feb 12, 1997).
[53] UNHCR EC Conclusion No.17 ¶ (b) (1980).
[54] UNHCR EC Conclusion No. 65 ¶ (c) (1991).
[55] See G.A. Res. 48/116, ¶ 3 (24 Mar., 1994); G.A. Res., 49/169 ¶ 4 (Feb. 24, 1995); G.A. Res. 50/152, ¶ 3 (Feb. 9, 1996); G.A. Res. 51/75, ¶ 3 (Feb. 12, 1997).
[56] See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), supra note 25.
Cover photo: Mstyslav Chernov/Unframe, CC BY-SA 4.0 license.
May 24, 2022 | Content, Online Scholarship, Perspectives
ANOUSH BAGHDASSARIAN*
I. Introduction
One year ago, on April 24th, 2021, President Biden did what no U.S. President had done before and recognized the atrocities committed against the Armenian population by the Ottoman Empire in 1915 as genocide. Descendants of Armenian Genocide survivors living in the United States, scholars, attorneys, and others close to the Armenian community, saw this acknowledgement as a step towards accountability.[1] Not only did this recognition place political pressure on Turkey[2] and offer a moral sense of redress through the recognition of the victims’ dignity, but it also opened doors for strategic litigation in U.S. courts that had been closed previously. Before Biden Administration’s recognition, many claims brought in U.S. courts seeking redress for harms suffered in connection to the Armenian Genocide were unsuccessful because the executive branch had not clearly designated the 1915 events as genocide. Without this designation, the judiciary often cited the “act of state doctrine”[3] or similar principles of deferring to the executive with regard to matters of foreign affairs, to dismiss Armenian Genocide cases before reaching their merits. Now that this obstacle to Armenian Genocide litigation has been removed with U.S. official recognition, litigants can try to bring Armenian Genocide claims again in U.S. courts with hope to reach the merits stage. Even without guarantee to win on the merits, the ability to reach this stage gives litigants both a greater chance of success as well as a sense of fairness in that their claims will be decided on the basis of their strength in law and will be less influenced by geopolitics.
Through an examination of the trajectory of Armenian Genocide litigation in the United States, this Article addresses the legal significance of U.S. genocide designations, a particularly timely analysis. In just the past year the United States has officially declared three atrocities genocide: the Ottoman Empire’s Genocide of the Armenians,[4] China’s Genocide of the Uyghurs,[5] and Myanmar’s Genocide of the Rohingya.[6] Not only is such recognition important for upholding human dignity and signaling the United States’ intolerance for impunity, but it also opens possible avenues for accountability and redress in the United States. Even if litigation for the Armenian Genocide may be limited given the fact that over a century has passed since its perpetration and evidence may be stale, lacking, or inadmissible, a review of the ways in which recognition for the Armenian Genocide could have propelled failed cases forward shed light on the importance of recognition for other potential genocide-related litigation in the United States for ongoing genocides today.
II. History of U.S. litigation involving the Armenian Genocide: “Impermissibly Intruding on Foreign Affairs”
For the past 100 years, creative lawyers have attempted to bring cases in the United States for descendants of Armenian Genocide survivors, mostly against banks or life insurance groups. Oftentimes those cases would fail: without the executive branch’s recognition (or even after the legislative branch’s recognition in 2019[7]), the judiciary hesitated to deem the killings of 1915 a genocide through its decisions. Courts would often decide that the nature of the 1915 events was not yet fully settled by the executive and fell outside the judicial powers, thereby hindering certain avenues for justice for descendants of those affected in the Genocide. This Section reviews some of those failed cases implicating lack of U.S. recognition of the Armenian Genocide as one of the reasons for dismissal, in order to better understand the legal implications of President Biden’s designation of the 1915 massacres of 1.5 million Armenians as genocide.
Courts have long recognized that foreign affairs are a matter to be left to the executive branch. The Constitution reserves exclusively to the federal government the power to make and resolve war, including the power to legislate restitution and reparations claims.[8] Within the ambit of the executive’s foreign affairs power is the legal designation of a mass killing as genocide. In Sarei v. Rio Tinto, PLC, the dissenting judge articulates the broad scope of this power:
“The political branches may choose to take no action against terrible evils to preserve essential alliances, as they did with respect to the Soviet Union during World War II; to avoid entanglements that would cost blood and money despite the justice of the cause, as with the Rwandan genocide; to avoid giving offense to regimes whose votes are useful to us in the United Nations or whose disinvestment in treasury securities would damage our economy; and to avoid ejection of our military bases from foreign territory if we characterized their history in an offensive manner, as with the Armenian genocide by Turkey. These political decisions are not pretty, but they are an integral part of the management of foreign affairs, and this task is for good reasons not assigned to the judiciary.”[9]
The court’s concern of impermissibly intruding into foreign affairs is what has stopped many U.S. cases related to the Armenian Genocide before they could reach an assessment on the merits. This Part will review four cases: Deirmenjian v. Deutsche Bank A.G.;[10] Bakalian v. Central Bank of Republic of Turkey;[11] Movsesian v. Victoria Verischerung A.G.;[12] and Davoyan v. Republic of Turkey.[13]
A. Deirmenjian v. Deutsche Bank A.G.
In Deirmenjian, California residents of Armenian descent filed a putative class action against German banks operating in Turkey, alleging that the banks withheld money from Armenian account holders following the Armenian Genocide.[14] The defendants claimed that “as a matter of Turkish … and international law the Republic of Turkey is the successor state of the Ottoman Empire,” and it “has not disavowed its acts.”[15] As a consequence, the defendants argued, adjudication of the action could interfere with the United States’ relations with Turkey. The court engaged in a choice of law analysis and decided that Turkish law would apply to the claims, rather than U.S. or, more specifically, California law.[16] The choice of law analysis is consequential. California Code of Civil Procedure poses no statute of limitation on actions brought to recover money or other property deposited with any bank.[17] Thus, under California law, the plaintiffs’ claims would likely not have been time-barred. Conversely, under Turkish law, the claims were time-barred after ten years, and thus the plaintiffs found no recourse.[18]
The choice of law analysis included a governmental interest test. First, the court examined each jurisdiction’s interest in applying its own law to the particular case to determine whether a true conflict existed.[19] Then, the court evaluated and compared the nature and strength of each jurisdiction’s interest to determine whose interest would be more impaired if its policy was subordinated.[20] In carrying out this analysis, the court worried whether its decision would disrupt U.S. relations with Turkey. To prove the possibility of disruption, the defendants cited the fact that in 2000, several former executive officials wrote to the Chairman of the House Committee on International Relations and urged the defeat of a bill that would have officially categorized the Armenian tragedy as genocide.[21] The appellate court ultimately decided that Turkey’s interests in applying its laws to conducts that occurred within its borders and in regulating companies doing business there predominated over California’s interests in applying its law.[22] This finding only served to reinforce judicial hesitation in ruling on cases regarding redress for the Armenian Genocide.
B. Movsesian v. Victoria Verischerung A.G.
Not only are federal courts presumed to relegate any foreign affairs matters to the executive, but states are too.[23] Under the Supremacy Clause, the Constitution and acts of Congress preempt state law.[24] State law therefore must yield to federal law where: (1) an express provision for preemption is included in federal law; (2) federal law was intended to occupy the relevant field; or (3) state law conflicts with federal law.[25] Under this formulation, a state law that interferes with foreign affairs may be unconstitutional if it “may disturb foreign relations.”[26] However, a state law with no more than an “incidental or indirect effect in foreign countries” would be valid.[27] This is known as the “incidental effects test,” whose application the Supreme Court[28] and several circuits have addressed, one example of which is Movsesian.
In Movsesian, the Ninth Circuit held that a California statute vesting state courts with jurisdiction over insurance actions by Armenian Genocide victims and extending the statute of limitations for victims’ claims was unconstitutional. It found that the statute at issue had “more than some incidental or indirect effect” on foreign affairs because it established “a particular foreign policy for California — one that decrie[d] the actions of the Ottoman Empire and [sought] to provide redress for ‘Armenian Genocide victims’ by subjecting foreign insurance companies to lawsuits in California.”[29] Ultimately, the Ninth Circuit held that the California Armenian Genocide insurance statute impermissibly intruded on foreign affairs by “impos[ing] the politically charged label of ‘genocide’ on the actions of the Ottoman Empire (and, consequently, present-day Turkey),” and by requiring courts to make a “highly politicized inquiry” into whether a policyholder “escaped” the Ottoman Empire “to avoid persecution”.[30] The court further said,
“The passage of nearly a century since the events in question has not extinguished the potential effect of section 354.4 [of the California Code of Civil Procedure: Armenian Genocide victims; insurance policy claims; waiver of statute of limitations] on foreign affairs. On the contrary, Turkey expresses great concern over the issue, which continues to be a hotly contested matter of foreign policy around the world.”[31]
Later cases have cited Movsesian as a representative case for the principle that a state could be deemed to have intruded impermissibly on foreign affairs by “express[ing] a distinct point of view on a specific matter of foreign policy” and “send[ing] a political message on an issue of foreign affairs by providing relief and a friendly forum to a perceived class of foreign victims.”[32] However, when the federal government designates an atrocity as genocide, such concerns of intruding impermissibly on foreign affairs cease to exist because the act of state defense does not extend to acts of genocide — which constitute a “‘clear and unambiguous’ violation of the law of nations.”[33] Thus, the California statute in Movsesian might not have been preempted had the genocide designation been in place at the time.
C. Davoyan v. Republic of Turkey
Davoyan, a case brought around the same time as Movsesian, furthered this hesitancy to reach the merits of Armenian Genocide-related cases absent of U.S. designation of the atrocities as genocide. In Davoyan, grandchildren of Armenians and former Turkish citizens brought a putative class action against the Republic of Turkey and Central Bank of the Republic of Turkey, alleging that their grandfathers were deprived of citizenship, deported, and had their property seized and expropriated by Turkey or its predecessor government under the Ottoman Empire.[34] Similar to Movsesian, the Davoyan court declines to decide this case because they did not wish to answer the question of whether the events of 1915 were genocide. The court concluded,
“In either case, [referencing Movsesian], allowing the lawsuit to proceed would involve judicial interference in foreign relations—here because establishing that ‘genocide’ occurred is a jurisdictional prerequisite. In light of the political question doctrine and analogous Ninth Circuit precedent, this Court cannot resolve such an inherently political question that our Constitution reserves for the other two coordinate branches of government. Therefore, this lawsuit must be dismissed.”[35]
It is clear that a case like Davoyan would have been able to move further along had the genocide designation already been in place.
D. Bakalian v. Central Bank of Republic of Turkey
Most recently in Bakalian, grandchildren of Armenians and former Turkish citizens brought a putative class action against two Turkish national banks, similarly seeking compensation for property taken from their ancestors. They brought the case under the Foreign Sovereign Immunities Act (FSIA), which establishes the limitations on whether a foreign sovereign nation may be sued in U.S. courts.[36] While foreign sovereigns enjoy jurisdictional immunity by default, exceptions exist under the FSIA.[37] One of these exceptions is the expropriation exception, which grants U.S. courts jurisdiction over foreign states in cases where rights in property taken in violation of international law are at issue.[38]
Although the court in Bakalian did not reach the substantial legal questions concerning FSIA jurisdiction, it did raise an important question, of whether the judiciary could be the first branch to decide that a genocide has occurred. The court rested its decision “on a straightforward statute of limitations determination” and found that the plaintiffs’ claims were time-barred.[39] Otherwise, the court further elaborated, it would have had to decide “a complex issue of first impression: whether the FSIA necessarily authorizes the judiciary to decide in the first instance whether a genocide has occurred even if a foreign state denies that it has.”[40] The genocide determination was critical in this case because it was necessary to allow the cause of action to properly fall within the expropriation exception. For many years, including when Bakalian was decided, there was a judge-made exception to the FSIA in which courts had interpreted the expropriation exception to incorporate international human rights law. Thus, some courts held that a state’s systematic expropriation of its nationals’ property in conjunction with an alleged genocidal scheme could establish jurisdiction under the FSIA’s expropriation exception.[41]
While this legal path could have been available for descendants of Armenian Genocide survivors just a few months prior to President Biden’s official recognition, it is unfortunately cut off by a quiet ruling by the Supreme Court in February 2021.[42] In Germany v. Philipp, the Court held that the expropriation exception to the FSIA does not cover expropriations of property belonging to a country’s own nationals, on the reasoning that the expropriation exception is tied to the international law of expropriation specifically, and does not incorporate broader international law, including human rights law.[43] Under international human rights law, including laws prohibiting genocide, there might be a cause of action against a sovereign in a foreign court; by contrast, under the international law of expropriation, a foreign sovereign’s taking of its own nationals’ property — that is, a domestic taking — remains a domestic affair.[44] Thus, descendants of those Armenians who were citizens of the Ottoman Empire and whose property was taken by the Ottoman Empire would not be able to use this exception to hold the Turkish government or its instrumentalities accountable for their ancestors’ loss of property since the Supreme Court held that the expropriation exception excludes domestic takings.
III. Conclusion
While the expropriation exception of the FSIA may no longer be a viable litigation avenue, there are still available paths for genocide litigation in the United States through civil federal statutes like the Alien Tort Statute,[45] possible criminal prosecution under the Genocide Statute,[46] and both primary and secondary liability state law tort claims, including negligence per se, intentional infliction of emotional distress, unjust enrichment, conspiracy, aiding and abetting of wrongful death, assault, battery, and more. In each of the four cases discussed above, an official genocide designation by the United States would have likely helped the cases go further and preserved the plaintiffs’ day in court.
This can be seen in one comparative case currently being litigated in New York, Kashef v. BNP Paribas. The plaintiffs brought this case against a French corporation for aiding and abetting the Sudanese regime in its perpetration of genocide and raised twenty tort claims under New York law.[47] The atrocities that took place in Sudan are widely known and have been condemned by the United States as genocide.[48] The Second Circuit held that the act of state doctrine does not apply,[49] because “international law does not recognize an act that violates jus cogens as a sovereign act.”[50] In other words, acts of genocide and other atrocities allegedly committed by the Sudanese government violated jus cogens norms[51] and thus could not be considered “official acts” of Sudan.[52]
Kashef demonstrates how genocide recognition can help defeat the act of state doctrine defense. According to the district court, the act of state doctrine also bars claims against private entities if an inquiry into “the motives of [a] foreign government” is necessary to determine whether the defendant’s alleged conduct caused the plaintiff’s injury.[53] Thus, to impose secondary liability on BNP Paribas, the court held that it would need to conclude that the Sudanese government engaged in tortious conduct within its territorial boundaries against its own people, and having an official genocide determination is certainly one way to do that.[54]
The Kashef case demonstrates a way forward for accountability for jus cogens violations through state tort law against corporations or banks operating within and beside those sovereign states. In this scenario, foreign sovereign immunity might not pose a bar. To the extent that banks or corporations are not agents or instrumentalities of the state, they are not immune from jurisdiction in the United States. Even for national banks which are considered to be state agents or instrumentalities, the commercial activities exception under the FSIA might help absolve that immunity. The commercial activities exception applies when a cause of action is based on (1) a commercial activity carried on in the United States by the foreign state; (2) an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or (3) an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.[55] Numerous foreign banks and corporations have been held to lack immunity through this exception, and it is reasonable to expect the same exception to continue to apply in similar situations.[56] Thus, with ways around immunity and the act of state doctrine, genocide litigation has a foreseeable path forward in the United States.
While the same reasoning may well be true for litigation of Armenian Genocide claims, the United States perhaps does not intend the recognition to implicate any FSIA exceptions. Tellingly, the State Department said that “[t]he President’s recent statement was not intended to impact Turkey’s sovereign immunity from the civil jurisdiction of United States courts.”[57]
However, as Davoyan demonstrated, new statutes can be written to preclude the statute of limitations from another country, and state courts are bound by their state law unless the statute is unconstitutional. Now this specific California statute might be favored over foreign law because it may not raise as many red flags as before the recognition. Movsesian would have moved further without the determination of a “highly politicized inquiry” of the genocidal nature of the 1915 events. The same was true for Bakalian.
Just the idea that the official genocide recognition could open legal avenues that were closed due to the lack of genocide designation, is a striking testament to the importance of political will in order for certain legal avenues to be available. Official genocide designations have a value and significance that can be felt tangibly within the law, in addition to the intangible added political pressure along with the catharsis in feeling a sense that the victims and survivors’ dignity has been at least partially restored.
Official U.S. recognition/designation is particularly important for the ongoing human rights abuses and genocides in Myanmar and China today, as recourse to those countries’ legal systems are clearly unavailable and any complicity that can be litigated in U.S. courts can help provide some form of redress to those affected by the conflicts in real time. In recent history, such designations have been retroactive, leaving little recourse for those who suffered and only opening narrow avenues for litigation after the fact. However, designations as the crimes are happening are critical to stopping them and preventing more harm while we still can. In the field of U.S. human rights litigation, legal avenues are often blocked in the absence of political will. Hence, it is important to note the legal significance that comes from designations of ongoing genocides to identify how U.S. litigation can be a valuable avenue for efforts of redress and accountability today and in the future.
[1] See, e.g., Miriam Berger, What it means for the U.S. to recognize massacre of Armenians as genocide, Washington Post (Apr. 24, 2021), https://www.washingtonpost.com/world/2021/04/22/armenia-genocide-recognize-biden-turkey/.
[2] See, e.g., Natalie Longmire-Kulis, Recognizing the Armenian Genocide Marks a Historic Turning Point in American Foreign Policy, Just Sec. (Apr. 25, 2021), https://www.justsecurity.org/75881/recognizing-the-armenian-genocide-marks-an-historic-turning-point-in-american-foreign-policy/.
[3] The act of state doctrine prohibits courts from sitting in judgment of another government’s acts. See generally, John Harrison, The American Act of State Doctrine, 47 Geo. J. Int’l L. 507 (2016).
[4] Statement by President Joe Biden on Armenian Remembrance Day, The White House (Apr. 24, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/24/statement-by-president-joe-biden-on-armenian-remembrance-day/.
[5] Fadel Allassan, Biden signs historic bill punishing China for Uyghur genocide, Axios (Dec. 23, 2021), https://www.axios.com/biden-signs-uyghur-forced-labor-bill-f4280bcb-adc4-4a7e-87e9-36307e29f83a.html.
[6] Secretary Antony J. Blinken on the Genocide and Crimes Against Humanity in Burma, U.S. Dep’t of State (Mar. 21, 2022), https://www.state.gov/secretary-antony-j-blinken-at-the-united-states-holocaust-memorial-museum/.
[7] Anoush Baghdassarian, Congressional Recognition of the Armenian Genocide – 104 years of Denial, Harvard Hum. Rts. J. (Dec. 27, 2019), https://harvardhrj.com/2019/12/congressional-recognition-of-the-armenian-genocide-104-years-of-denial/.
[8] See, e.g., Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 965–66 (9th Cir. 2010).
[9] Sarei v. Rio Tinto, PLC, 671 F.3d 736, 815–16 (9th Cir. 2011).
[10] Deirmenjian v. Deutsche Bank A.G., No. CV 06-00774 MMM CWX, 2006 WL 4749756 (C.D. Cal. Sept. 25, 2006).
[11] Bakalian v. Cent. Bank of Republic of Turkey, 932 F.3d 1229 (9th Cir. 2019).
[12] Movsesian v. Victoria Verischerung A.G., 670 F.3d 1067 (9th Cir. 2012).
[13] Davoyan v. Republic of Turkey, 116 F. Supp. 3d 1084 (C.D. Cal. 2013).
[14] Deirmenjian, 2006 WL 4749756, at *1.
[15] Id. at *24.
[16] Deirmenjian v. Deutsche Bank A.G., 548 F. App’x 461, 463–66 (9th Cir. 2013).
[17] Cal. Civ. Proc. Code § 354.45 (West).
[18] Deutsche Bank A.G., 548 F. App’x at 466.
[19] McCann v. Foster Wheeler LLC, 225 P.3d 516, 524 (Cal. 2010).
[20] Id. at 527.
[21] Deirmenjian v. Deutsche Bank A.G., No. CV 06-00774 MMM CWX, 2006 WL 4749756, at *26 (C.D. Cal. Sept. 25, 2006).
[22] Deutsche Bank A.G., 548 F. App’x at 466. It is interesting to note, though, that the district court was not completely without favor towards California’s interests in adjudicating the case. For example, earlier in the litigation, when presented with a motion to dismiss the case from U.S. courts on grounds of forum non conveniens (that is, the U.S. being a comparatively inconvenient forum), the court held that California had a local interest in resolving the controversy as “California is home to the largest populations of Armenians in the world outside the Republic of Armenia…California has expressed strong localized interest in ensuring that Armenian residents obtain relief for claims arising out of or related to the Genocide.” Deirmenjian, 2006 WL 4749756, at *16–17. In response to the defendant’s arguments that Germany has a strong interest in monitoring the activities of its banks, the court agreed but held that “Germany’s interest is outweighed by the interest of the United States and California in ensuring that residents are able to obtain adequate redress for their grievances.” Id. at *16. Lastly, the court held that “in the absence of any similar public sentiment in the European forum under consideration in this case, or a more tangible present-day connection to this subject matter of plaintiffs’ claims, this forum has the stronger public interest in adjudication of plaintiffs’ claims.” Id. at *17. These quotes are important because they demonstrate that perhaps with enough public policy reasons to support the decision in one forum, a foreign country’s interests can be outweighed.
[23] Deutsch v. Turner Corp., 324 F.3d 692, 714 (9th Cir. 2003) (“In the absence of some specific action that constitutes authorization on the part of the federal government, states are prohibited from … modifying the federal government’s resolution of war-related disputes.”).
[24] Const. art. VI, cl. 2.
[25] See generally Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000).
[26] US Awami League, Inc. v. City of Chicago, 110 F. Supp. 3d 887, 892 (N.D. Ill. 2015) (citing Zschernig v. Miller, 389 U.S. 429, 434–41 (1968)).
[27] Id.
[28] See generally Zschernig v. Miller, 389 U.S. 429 (1968). The Court struck down an Oregon law it deemed to be an “intrusion by the State into the field of foreign affairs” because it required judges to determine the overlap of rights protected by foreign law and Oregon law. The Court distinguished this from an earlier decision of its regarding a California law, reiterating the fact that state laws with only “some incidental or indirect effect in foreign countries” do not intrude on the federal domain. Id. at 432–33.
[29] Movsesian v. Victoria Verischerung A.G., 670 F.3d 1067, 1076 (9th Cir. 2012).
[30] Id.
[31] Id. at 1077. To demonstrate this political turmoil, the Court referred to New York Times and BBC articles that discussed Turkey’s retaliatory response to the French bill that criminalized Armenian Genocide denial, and President Obama’s circumvention of the use of the word so as not to anger Turkey. Id.
[32] Id.; Cassirer v. Thyssen-Bornemisza Collection Found., No. CV 05-3459-GAF (CTX), 2012 WL 12875771, at *17 (C.D. Cal. May 24, 2012), aff’d in part, rev’d in part, 737 F.3d 613 (9th Cir. 2013) (citing Movsesian).
[33] See, e.g., Filartiga v. Pena-Irala, 577 F.Supp. 860, 862 (E.D.N.Y. 1984).
[34] Davoyan v. Republic of Turkey, 116 F. Supp. 3d 1084, 1090–93 (C.D. Cal. 2013).
[35] Id. at 1104.
[36] 28 U.S.C. § 1604 (“Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.”).
[37] 28 U.S.C § 1605 (General exceptions to the jurisdictional immunity of a foreign state).
[38] 28 U.S.C. §1605(a)(3).
[39] Bakalian v. Cent. Bank of Republic of Turkey, 932 F.3d 1229, 1235–36 (9th Cir. 2019).
[40] Id.
[41] Cases in Seventh, Fifth, and Ninth Circuits demonstrated this exception. See, e.g., Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 675 (7th Cir. 2012), aff’d sub nom. Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847 (7th Cir. 2015). Additionally, the 7th circuit observed that all U.S. courts to consider the issue recognize genocide as a violation of customary international law. Id. The Ninth Circuit stated that it is settled that genocide violates international law. See, e.g., Sarei v. Rio Tinto, PLC, F.3d 736, 759 (9th Cir. 2011).
[42] Federal Republic of Germany v. Philipp, 141 S. Ct. 703, 705 (2021).
[43] Id. at 714.
[44] Id. at 705.
[45] 28 U.S.C. § 1350.
[46] 18 U.S.C. § 1091.
[47] Kashef v. BNP Paribas S.A., 925 F.3d 53, 55 (2d Cir. 2019).
[48] Steven R. Weisman, Powell Declares Genocide in Sudan in Bid to Raise Pressure, N.Y. Times (Sept. 9, 2004), https://www.nytimes.com/2004/09/09/international/africa/powell-declares-genocide-in-sudan-in-bid-to-raise.html.
[49] Kashef, 925 F.3d at 61–62.
[50] Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir. 1992).
[51] “A jus cogens norm, also known as a peremptory norm of international law, is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Id. at 61.
[52] Id. at 60.
[53] Kashef v. BNP Paribas S.A., 316 F. Supp. 3d 770, 774 (S.D.N.Y. 2018), vacated and remanded, 925 F.3d 53 (2d Cir. 2019) (quoting O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449, 453 (2d Cir. 1987)).
[54] Kashef, 925 F.3d 53. While the district court was concerned that it would be impermissibly intruding on the foreign affairs powers of the other branches in issuing this decision, the Second Circuit reversed and said that applying the act of state doctrine would actually contradict the legislative and executive branches since they have already made clear that they believe atrocities have been committed in Sudan. See Brief of Members of Congress as Amici Curiae at *1, Kashef, 925 F.3d 53 (No. 18-1304).
[55] 28 U.S.C. § 1605(a)(2).
[56] See, e.g., United States v. Turkiye Halk Bankasi A.S., 16 F.4th 336 (2d Cir. 2021), petition for cert. pending, No. 21-1450 (filed May 17, 2022).
[57] Michael Hernandez, Biden’s 1915 events move to not affect legal status, Anadolu Agency (Apr. 30, 2021), https://www.aa.com.tr/en/americas/bidens-1915-events-move-to-not-affect-legal-status/2225900.
* Anoush Baghdassarian is a JD Candidate at Harvard Law School. She has a Master’s in Human Rights Studies from Columbia University, and a Bachelor’s in Psychology and Genocide Studies from Claremont McKenna College. She is Co-founder of the Rerooted Archive, documenting over 200 testimonies from Syrian-Armenian refugees who have fled Syria in the last ten years. She has a career focus on transitional justice and international criminal law and some of her work experiences include interning as an advisor to the Armenian Permanent Mission to the UN, an intern at the UN Office of the High Commissioner for Human Rights, and serving as an upcoming visiting professional at the International Criminal Court.
May 24, 2022 | Content, Online Scholarship, Perspectives
QERIM QERIMI*
Introduction
Protest is an inherent part of human history. The process of formation and transformation of democratic polities, old and new, is rooted in protest. † Every new human discovery or technology has exerted its impact and transformed protest, not so much its substance as much as its manifestation. From Gutenberg’s printing press and its impact on the Protestant Reformation; to the role of radio during the People Power Revolution in the Philippines, which ousted the Ferdinand Marcos regime and restored the country’s democracy; to the mobile phone-enabled “Text-Messaging Revolution”—the People Power II Revolution in the Philippines—which allowed information on former President Joseph Estrada’s corruption to be shared widely and, ultimately, deposed him from power; and to the role of “Facebook revolution” during the Arab Spring, human invention has been at the forefront of protest and its many faces, testifying to both the perpetual validity of protest and its indispensable power for change. In all these circumstances, however, technology has either complemented or enhanced, but never (completely) replaced or substituted physical protests.
What we have now, a trend most prominently exposed during the Covid-19 pandemic, is an all-virtual protest, standing in absolute autonomy from the classic physical gatherings. Advances in digital innovation have enabled the creation of a radically new and different space for critique, creativity, community, consensus, conflict, control and common civility. Faced with an unprecedented situation dictated by a lately unforeseen pandemic, many governments took measures encompassing restrictions on a number of internationally guaranteed human rights and fundamental freedoms, including the right to peaceful assembly—the common formal denomination of the notion of protest in international legal discourse.
In many countries, critical voices have emerged in relation to the broad scope of restrictions on people’s right to assemble or the implementation of such restrictions, or other public concerns. Where physical protests were suspended or cancelled, protests were then transferred to online spaces. Environmental activists assembled around Fridays for Future moved their assemblies online. In Hungary, civil society put in place the first online protest on social media to oppose the Hungarian “corona law” and attracted nearly 40,000 viewers. The protest was shut down after half an hour. In Poland, human rights advocates protested virtually against the new abortion bills during Covid-19 lockdown by posting selfies with the #ProtestAtHome hashtag. In the United States, a Pew Research Center analysis of tweets found that the #BlackLivesMatter hashtag on Twitter had been used roughly 47.8 million times between May 26 and June 7, 2020, a hitherto unprecedented figure. According to another survey conducted by Pew Research in June 2020, 54 percent of social media users of ages 18 to 29 responded that they had used social media platforms in the last month to look for information about protests or rallies happening in their area. This indicative list of online protests depicts an inescapable trend of the future. An essential by-product of real life problems, law comes as the next natural step. This Article seeks to contribute to this discussion by delimiting and defining the status and contents of a right to protest online on a global scale.
I. International Legal Foundations of the Right to Peaceful Assembly
In 1948, the Universal Declaration of Human Rights (UDHR) recognized everyone’s right to freedom of peaceful assembly and association (art. 20, § 1). Article 21 of the International Covenant on Civil and Political Rights (ICCPR) reaffirmed and elaborated on this right, as well as set out exceptions to it:
“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”
A number of regional human rights instruments complement this broader international framework, enabling direct enforceability in national jurisdictions, notably the European Convention on Human Rights (ECHR) (art. 11), American Convention on Human Rights (art. 15), American Declaration of the Rights and Duties of Man (art. XXI), African Charter on Human and Peoples’ Rights (art. 11), and Arab Charter on Human Rights (art. 24).
Given the interdependent nature of rights generally and the contents of the right to peaceful assembly specifically, this right is inextricably intertwined with other rights, primarily freedom of association and freedom of expression. Indeed, some of the international instruments such as the ECHR treat assembly and association as part of a singular legal right, secured in article 11, whereas others, such as the ICCPR, provides for two separate rights, codified in articles 21 and 22, respectively. Moreover, the very notion of assembly or protest would be meaningless if stripped of the conditioning cause, dissent, or displeasure which it seeks to express. As stated by the European Court of Human Rights (ECtHR), one of the aims of freedom of assembly is to secure a forum for public debate and the open expression of personal opinions (Ezelin v. France, ¶ 37). The link between the two rights is most apparent where the national authorities’ intervention against an assembly or protest is at least in part related to the “views held or statements made by participants.” (Stankov v. Bulgaria, ¶ 85).
The rights of assembly, association, and expression share a common element of necessary and tolerable critique for democracy and human beings to continue to progress:
“Freedom of expression constitutes one of the essential foundations of a [democratic] society, one of the basic conditions for its progress and for the development of every man. … [I]t is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the [s]tate or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means … that every “formality”, “condition”, “restriction” or “penalty” imposed … must be proportionate to the legitimate aim pursued.” (Handyside v. United Kingdom, ¶ 49).
Likewise, freedom of assembly protects a demonstration that may “annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote.” (Platform Arzte fur das leben v. Austria, ¶ 32).
II. The Case for the Right to Protest Online
To begin with, there is no express articulation in the existing binding corpus of international instruments of a right to protest online. At the same time, there is no prohibition of it. Indeed, the very phrasing of the relevant provisions in the international instruments referenced above is neutral as to the form of manifesting protest. These provisions do not limit the freedom of assembly or the corresponding freedom of association or expression only to physical presence, encounter, or expression. To recall article 21 of the ICCPR: “[t]he right of peaceful assembly shall be recognized;” and article 11 of the ECHR: “[e]veryone has the right to freedom of peaceful assembly and to freedom of association with others…” Given the growing magnitude of digital interaction, one might observe a higher degree of association happening online than offline.
In any event, the relevant judicial praxis, as evidenced by judgments of international courts, has set no bar to applying these rights to events occurring in, or disputes emerging from, the online sphere. For instance, ECtHR jurisprudence has routinely applied the rights and freedoms guaranteed in the ECHR to the internet and new technologies. While no case has been brought to the ECtHR on the specific right to protest online, there are numerous judgments on the right for private and family life, including right to respect for correspondence. Indeed, it would be truly incomprehensible to think of the right to privacy and correspondence as limited to classic, physical context only, which is overshadowed by online interaction. The same is true with regard to the freedom of expression. As observed by the ECtHR, “the nternet has now become one of the principal means by which individuals exercise their right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest.” (Yildirim v. Turkey, ¶ 54). Any interference from national authorities will constitute a breach of the protected right unless it is prescribed by law, pursues a legitimate aim, and is required to achieve the aim in a democracy (¶ 56). This jurisprudential approach represents a naturally evolved application of the ECHR rights to online contexts. The same standard would be equally applicable to the right to protest online, such as in the scenario when internet service providers and intermediaries can potentially restrict online assemblies or the privacy of participants.
III. Existing Practice and Trends in U.N. Bodies
At a global context, on 6 July 2018, the U.N. Human Rights Council, a 47-member body, adopted by consensus a resolution on “the promotion and protection of human rights in the context of peaceful protests.” The resolution makes clear that, unlike the way it has been understood by some, an assembly does not require a physical gathering of people. Rather, “human rights protections, including for the rights to freedom of peaceful assembly, of expression and of association, may apply to analogous interactions taking place online.” The Human Rights Council expresses concern about undue restrictions that hinder internet users from gathering or sharing information at important political moments, thereby impairing their ability to organize and participate in assemblies. It recognizes that the safe and private usage of communications technology under the protection of international human rights law is essential for the realization of the freedom of expression and the right to peaceful assembly. Hence, the resolution calls on all states to stop or refrain from measures aimed at blocking internet users from obtaining or distributing information online. Although a soft law instrument by formal characterization, the resolution is a significant normative development because it is adopted by consensus under the umbrella of a U.N. organ.
The U.N. General Assembly has subsequently endorsed the Human Rights Council’s position. In a resolution adopted on 17 December 2018, the General Assembly called upon all states to ensure that “the same rights that individuals have offline, including the rights to freedom of expression, of peaceful assembly and of association, are also fully protected online,” in particular by holding back from internet shutdowns and content regulation in a manner that violates international human rights law. The resolution was adopted by a significant 154 votes in favor, none against, and 35 abstentions, yet it failed to pass without a vote.
The U.N. Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has also recognized that digital technology forms an integral part to the exercise of the rights of peaceful assembly and association. The Human Rights Committee, the treaty body that monitors implementation of the ICCPR, has affirmed that the right to peaceful assembly extends to online sphere. In its General Comment No. 37 on article 21 of the ICCPR, the Committee clarifies that this provision “protects peaceful assemblies wherever they take place: outdoors, indoors and online; in public and private spaces; or a combination thereof.”
Although all the instruments discussed above fall under the notion of “soft law” rather than representing legally binding obligations, they are nonetheless authoritative and unanimous in conceiving the application of relevant “hard law” framework to the rights to freedom of peaceful assembly and association online. Therefore, international law ought to protect the right to protest online.
IV. Process, Prospects, and Problems of the Realization of a Right to Protest Online in Real-Life Settings
Despite the existence of a clear and strong international legal protection of the right to peaceful assembly, this right is not absolute. In law and reality, it means that the right is subject to limitations. Such limitations, although clearly expressed in legal terms, provide space for potential contention and abuse. The general international human rights standard requires any restriction be (1) prescribed by law; (2) necessary in a democratic society; and (3) in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights or freedoms of others. Similarly in the digital context, the freedom to access and use digital technologies for purpose of exercising the right to freedom of peaceful assembly constitutes the default, with limitations being the exception. Whenever such exceptions are invoked, it is incumbent upon states to demonstrate the necessity of the restrictions and implement them only to an extent proportionate to the pursuance of legitimate aims. In no case can a restriction be applied or invoked in a manner that would result in the impairment of the essence of the right (Human Rights Committee, General Comment No. 31).
Being “one of the foundations” of a democratic society, the right to freedom of peaceful assembly should not be interpreted restrictively, unless in gatherings where the organizers and participants have violent intentions, actually incite violence, or otherwise reject the foundations of a democratic society. In order to avert the risk of a restrictive interpretation, the ECtHR has “refrained from formulating the notion of an assembly, which it regards as an autonomous concept, or exhaustively listing the criteria which would define it.” (Navalnyy v. Russia, ¶ 98). However, in its relevant jurisprudence, the ECtHR has clarified that the right to freedom of assembly covers “both private meetings and meetings in public places,” and can be exercised by “individual participants and by the persons organising the gathering.” (Kudrevičius v. Lithuania, ¶ 91). It is of distinct significance that a violation of, or interference with, the right to freedom of peaceful assembly does not need to amount to an outright ban of assembly, be it legal or de facto, but can consist in various other measures imposed by public authorities. The existing case law of the ECtHR has provided several examples (Kudrevičius v. Lithuania, ¶ 100), which could apply and be equally valid to an online context. A prior ban can create a chilling effect on those who may plan to participate in a protest and thus arise to the level of interference, even if the protest subsequently proceeds without obstruction from the authorities. A prior ban of an online platform intended to serve as a venue of protest can likewise have a chilling effect on those planning to participate in that protest. A refusal to permit individuals to travel with the goal of attending a meeting—which in the digital context could translate into blocking an individual’s access to the internet—amounts to an interference with the right to freedom of peaceful assembly. So do the measures taken during the protest, such as dispersal of the meeting, apprehension of participants, or other punishments inflicted upon protesters—the same measures can be equally applicable to participants and organizers of an online protest.
It has been increasingly common for states to shut down access to the internet and communication services during public protests, alternatively known as “blackouts” or “kill switches.” According to data collected by Access Now and the #KeepItOn coalition, one of the most commonly observed causes of internet shutdowns in 2019 was protests. Consequently, “when a government says it is cutting access to restore ‘public safety,’ in reality it could mean the government anticipates protests and may be attempting to disrupt people’s ability to organize and speak out, online or off.” When “a government claim that a shutdown is necessary to fight ‘fake news,’ hate speech, or incendiary content,” it “could be an attempt to hide its efforts to control the flow of information during periods of political instability or elections.” Indeed, internet shutdowns—the most frequent tool employed by governments to suppress online dissent and protest—is impermissible under international human rights law, even in times of conflict or other emergencies. As stated by four Special Rapporteurs on the field of freedom of expression respectively appointed by the U.N., the Organization for Security and Co-operation in Europe, the Organization of American States, and the African Commission on Human and Peoples’ Rights in a Joint Declaration on Freedom of Expression and responses to conflict situations, web content filtering and complete shutdown of communication systems “can never be justified under human rights law.” (¶ 4.c.). To substantiate this statement, it must be noted that whereas the rights to freedom of expression and freedom of assembly and association are not qualified as normatively absolute rights in the sense that they are subject of legally prescribed limitations, such limitations must be necessary and proportionate, and “must be narrowly interpreted.” (Kudrevičius v. Lithuania, ¶ 142). However, a complete internet shutdown is more analogous to a complete denial of the rights than a narrowly qualified limitation.
As the U.N. Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has explained, the right to freedom of peaceful assembly not only imposes a negative obligation on the state to not interfere with the enjoyment of the right; it also creates a positive obligations on public authorities to secure and facilitate the effective enjoyment of this right. States must therefore act in consonance with their international obligation to protect the right to freedom of peaceful assembly online by permitting protesters to peacefully gather online. In other words, states should ensure that access to the internet is not blocked, censored, restricted, or shut down entirely; that the privacy of those peacefully participating in an online assembly is respected; and that they face no actual or subsequent consequences for participation or organization of an online protest, such as arrest, detention, or imposition of penalties. The primary responsibility of states for the realization of the right of peaceful assembly also entails the responsibility to prevent non-state actors, including businesses, from unduly interfering with individuals’ freedom of peaceful assembly. According to Human Rights Council, states should “ensure effective remedies for human rights violations, including those related to the internet.”
Conclusion
Those who undertake to imagine the future of online protests or digital dissent on earth or in space can do so not only on the basis of their power of imagination but also knowing that the byproduct of that imagination is protected by law. As many tragic events in human history that have given rise to new legal and institutional inventions (to name a few, the United Nations, the Universal Declaration of Human Rights, and the Genocide Convention after Second World War), the Covid-19 pandemic and the subsequent governmental limitations on peaceful assembly have brought the right to protest into a new light. However, while the analysis here reveals the existence of legal foundations and safeguards of a right to protest online, including its composite principles, it nonetheless points to a demand for the development of a universally agreed framework and its enforcement. One out of many possible courses of action—at least as an initial step—could be the adoption by heads of state and government at the next U.N. General Assembly plenary of a joint declaration that affirms the right to protest online. In operational practice, courts are the obvious natural candidates to recognize and implement the right to protest online.
* Qerim Qerimi is a professor of international law, international law of human rights, and international organizations at the University of Prishtina. He is also a visiting professor and member of the Law and Development Research Group at the University of Antwerp Faculty of Law. Additionally, he is a member of Council of Europe’s European Commission for Democracy through Law (Venice Commission) and chair of its sub-commission on the protection of national minorities, and serves as Rapporteur for Oxford International Organizations (OXIO). He has pursued postdoctoral research at Harvard Law School on a Fulbright scholarship.
† See generally, Cass R. Sunstein, Why Societies Need Dissent (2005); Josiah Ober, Political Dissent in Democratic Athens: Intellectual Critics of Popular Rule (2001).
Apr 6, 2022 | Content, Online Scholarship, Perspectives
DANIEL RIETIKER & MARY LEVINE*
INTRODUCTION
On January 19, 2021, the European Court of Human Rights (ECtHR) held in Lăcătuş v. Switzerland,[1] that an outright ban on begging in public places violated Article 8 of the European Convention on Human Rights (“the Convention”), suggesting that certain means of survival are encompassed under the Article’s protection of “private life.”[2] Furthermore, the court concluded that Switzerland’s interference with that protection was not “necessary in a democratic society.”[3] This Article reviews the novelty of the ECtHR’s approach in this new field and analyzes some of the judgment’s shortcomings. In Part I, we present the facts of the case along with the reasoning and main conclusions of the court; in Part II, we critically assess the judgment and its implications.
I. Lăcătuş v. Switzerland
A. Factual Summary
The applicant, Violeta-Sibianca Lăcătuş, is a Romanian national born in 1992, and living in Romania.[4] After failing to find work in 2011, she resorted to begging for change on the streets of Geneva.[5] Despite Lăcătuş using begging as a means of survival, the Geneva Criminal Law Act (“Geneva Act”), section 11A, made it a criminal offense to beg in public places.[6] The law mandated that,
“1. Anyone who begs will be punished by a fine;
2. If the perpetrator organizes the begging of others or if he is accompanied by one or more minors or dependents, the fine will be at least CHF 2,000.”[7]
Accordingly, on July 22, 2011, while Lăcătuş was begging on the streets of Geneva, the local police confiscated 16.75 Swiss francs (CHF), equivalent to 18.35 U.S. dollars, from her, conducted a full body search, and ordered her to pay a fine of CHF 100 (USD 109.54).[8] Over the next two years, she was placed in police custody twice for over three hours, and she was additionally fined CHF 100 eight times.[9] In an attempt to provide an alternative to the monetary punishments, the authority offered Lăcătuş one-day custodial detention for each fine she was unable to pay.[10]
B. Procedural History
Consequently, Lăcătuş appealed her penal orders.[11] On January 14, 2014, the Police Court of the Canton of Geneva denied her appeal and found her guilty of begging under the Geneva Act, thereby confirming the police’s confiscation and full-body search.[12] The court further ordered her to pay a fine of CHF 500 (USD 547.71) or face a five-day custodial sentence.[13] Lăcătuş then appealed the court’s order to the Criminal Appeals and Review Division of the Court of Justice of the Canton of Geneva.[14] On April 2, 2014, the appeals court dismissed her appeal, and on September 10, 2014, the federal court likewise dismissed her appeal.[15]
Because her federal appeal was dismissed and she remained unemployed, she was thereafter detained from March 24–28, 2015, at the Champ-Dollon Remand Prison for failure to pay her fines.[16]
With no domestic remedy, on March 17, 2015, Lăcătuş — now the applicant — lodged a complaint with the ECtHR, insisting that the Swiss ban on begging violated Article 8 of the Convention (right to respect for private and family life), Article 10 (freedom of expression), and Article 14 (prohibition on discrimination).[17] The applicant argued that the Geneva statute banning begging constituted an interference with her private life, as it deprived her of a means to survive.[18] Moreover, she argued that the prohibition on begging prevented her from asking for charity, and further, that the Act discriminated on the basis of financial status and Roma descent.[19]
C. The Court’s Judgment
On January 19, 2021, the ECtHR issued a chamber judgment, unanimously holding that the Geneva Criminal Law Act violated Article 8 of the Convention.[20] Consequently, the chamber declined to consider Lăcătuş’s Article 10 and 14 claims.[21]
The court noted that the Swiss government did not dispute its interference with the right to respect for private life under Article 8; rather, the government argued that it had a legal basis for this interference under the Geneva Act.[22] The Swiss government asserted that the Geneva Act had a legitimate aim because it provided public order and safety, promoted the economic well-being of the country through tourism, and further protected the rights and freedom of others, such as patrons at restaurants, shoppers, and so on.[23] The court recognized these as legitimate government aims; however, the court ultimately found that because the Geneva Act was a blanket prohibition on begging — in other words, an outright ban on a certain type of conduct — the state required a strong justification, and the court needed to apply rigorous scrutiny considering the interests at stake.[24]
Using this framework, the court first assessed the applicant’s demographics and characteristics as a person of manifest vulnerability.[25] The court noted that the applicant came from an extremely poor family, was illiterate, unemployed, and received no social benefits from the Swiss government.[26] Therefore, since begging was her exclusive means of survival, the court determined that Lăcătuş “had the right, inherent in human dignity, to be able to express her distress and to try and satisfy her needs by begging.”[27]
The court then reviewed the nature and severity of the penalty.[28] First, the court acknowledged that the five-day sentence was a severe sanction, particularly given that the sanction was not justified by a sound public-interest rationale.[29] Moreover, the court reasoned that this deprivation of liberty would likely aggravate the applicant’s distress and vulnerability.[30] The court rejected the Swiss government’s assertion that it lacked less restrictive means, relying upon an assessment of similar international legislation.[31] The court reviewed begging legislation in the Council of Europe’s forty-seven member states and found that the Swiss ban on begging was more restrictive and harsher than many other countries’ criminal begging statutes.[32]
As a result, in balancing the interests of the parties, the court determined that a five-day sentence for Lăcătuş was not proportionate to the aim of combatting organized crime and protecting the rights of passersby.[33] Accordingly, the Geneva Act infringed on Lăcătuş’s human dignity, and thus “impaired the very essence of the rights protected under article 8.”[34] She was therefore awarded just satisfaction of nonpecuniary damages under Article 41 in the amount of 922 euros.[35]
II. ASSESSMENT OF THE JUDGMENT
This Part is divided into three sections: Section II.A discusses the novelty of the ECtHR’s approach toward begging. Section II.B evaluates the judgment’s resulting diminished margin of appreciation, both through its use of international materials and given its heightened proof requirements for legitimate government interests. And section II.C examines the court’s failure to analyze Lăcătuş’s Article 10 and Article 14 claims.
A. Scope and Novelty of the Court’s Approach Toward Begging
The novelty of Lăcătuş stems primarily from the court’s recognition that begging might be a human rights issue. By holding that begging falls within Article 8, the court created a quite expansive definition of “private life.” The court explicitly reasoned in its admissibility assessment that “private life” under Article 8 is a “broad concept, not susceptible of an exhaustive definition.”[36] It can sometimes embrace aspects of the physical and social identity of an individual.”[37] Moreover, the court noted that human dignity is encompassed under the protections of Article 8, further deeming a person’s means of subsistence as a foundational component in her own human dignity.[38]
Some judges critiqued this expansion, suggesting that the facts of Lăcătuş do not clearly establish that the applicant was obliged to beg in order to survive and escape poverty. Judge Ravarani noted that the scope of “human dignity” must be fleshed out even more, indicating that an applicant must do everything possible to avoid the criminalized act in order for human dignity to be invoked.[39]
B. Switzerland’s Diminished Margin of Appreciation
1. Application of International and Comparative Interpretations
While Lăcătuş focused mainly on expanding the scope of Article 8 protections, the court also applied a comparative law analysis of legislation adopted by member states and considered the relevance of international treaties and sources.[40] This was necessary due to the Swiss government’s argument that bans and restrictions of begging existed in other Council of Europe member states and that, as a result, they enjoyed a considerable margin of appreciation in this domain.[41] The margin of appreciation is the leeway given to a state in determining the necessity of an interference into the right at stake in a given situation, including the proportionality of the impugned measure.[42] It is the expression of the principle of subsidiarity that imposes on the court the duty to apply a certain restraint in assessing the domestic tribunals’ decisions and to limit its own control (the so-called “European control”) to the question of whether a fair balance has been struck between the private interests of the applicant, on the one hand, and the public interests of society, on the other.[43] In other words, as long as the conclusions of the domestic tribunals do not appear arbitrary or manifestly unreasonable, it is not up to the court to replace the considerations by the domestic tribunals by its own assessment.[44]
In coming to its conclusions, the court reviewed various member states’ criminal acts related to begging and the judicial interpretations of this legislation, including opinions by the Constitutional Court of Austria, the Belgian Council of State, the Hungarian Constitutional Court, the High Court of Ireland, and the Italian Constitutional Court. After its review of member states’ judicial interpretations, the court thereafter found that the Swiss ban was comparatively too far reaching.
In particular, the court found that nine of the thirty-eight member states[45] the legislation of which the court examined, did not consider it necessary to ban begging at all.[46] In the eighteen member states that provided rules on the national level, six have banned only aggressive or intrusive forms of begging,[47] seven have otherwise restricted the scope of such legislation,[48] and only five have less nuanced laws in place, prohibiting begging more generally.[49] Finally, in the eleven states where begging laws existed only on the local (regional) level, such as in Switzerland, the scope of the legislation was generally limited too, in particular to aggressive or intrusive forms of begging.[50] In other words, whereas no consensus existed among the member states on the question of banning or restricting begging, it nevertheless turned out that most other member states had only limited restrictions on begging, whereas the Swiss ban on begging was comprehensive. This outright ban on begging, paired with Lăcătuş’s dire need to beg, informed the court’s decision to conclude that Switzerland’s margin of appreciation was limited.[51]
Furthermore, the court assessed relevant international treaty provisions. For example, the court invoked Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (“EU Human Trafficking Convention”), suggesting that Swiss authorities inappropriately punished individuals for engaging in unavoidable conduct. In particular, the EU Human Trafficking Convention’s monitoring group has noted that begging is one of the unavoidable behaviors that states should not punish.[52]
2. Rejecting Switzerland’s “Legitimate” Government Interest
Not only did the court inform itself by relying on international materials, but the court also expressly limited the margin of appreciation in its assessment of the Swiss government’s interests. As mentioned previously, one of the most decisive points to the court was the disproportionate balancing of interests between the applicant and the state. The court found that the Swiss ban on begging was too absolute, and that the sanction was too harsh given the circumstances. Instead of providing Switzerland with a (broad) margin of appreciation to criminalize begging in absolute terms, the court indicated that disproportionate interests would implicate a violation under the Convention. In their discussion, the court cited Parrillo v. Italy,[53] which held that a margin of appreciation may be restricted when a particularly important aspect of an individual’s existence or identity is at stake.[54] As such, the court again diminished state sovereignty in the name of protecting minorities historically targeted by the state.
Thus, even though Article 8 is not an absolute right under the Convention, the court’s high standard for Article 8 assessments suggests that state-imposed restrictions will have limitations under the Convention. The court cited the United Nations Special Rapporteur on Extreme Poverty and Human Rights, who argued that the state interest in keeping the town clean and attractive for tourists cannot result in an absolute ban on conduct, particularly conduct that relates to the applicant’s identity and means of survival.[55] This reliance on the Special Rapporteur’s critique of a state regulation limits state sovereignty and reinforces the court’s commitment to ensuring that impoverished people receive appropriate protection.
C. The Court’s Failure to Assess Articles 10 and 14
In Lăcătuş, the European Roma Rights Center (ERRC) filed a third-party intervention outlining historical and modern “antigypsyism” and its resulting statistical increase on poverty for Roma citizens.[56] The ERRC explained that this increased occurrence of poverty has led to a false narrative of Roma as inherent “criminals.”[57] The ERRC report also analyzed various Council of Europe jurisdictions and demonstrated that the criminalization of begging exacts a disproportionate impact on Roma.[58] Particularly, the report showed that in the development of the Geneva Act on begging, the legislators showed clear discriminatory intent, including one legislator saying “there is begging tourism, which is practiced by travellers — all those gypsies who settle in camps just outside our borders, who hold out their hands by day and, by night, brandish the screwdrivers and crowbars they use to rob our homes.”[59]
From our point of view, it is rather surprising that, in spite of these very precise and explicit submissions by a well-recognized NGO, the court did not want to engage in an analysis of the alleged breach of Article 14.[60] This is particularly surprising considering that the court has identified in the past many situations in which Roma suffered serious violations of their human rights, including instances of discrimination.[61] Moreover, the court, within its examination of the applicant’s Article 8 complaint, clearly and rightly acknowledged her particular vulnerability due to her Roma origin.
While the Geneva Act did not specifically target the Roma community, Roma citizens were disproportionately impacted by the criminalization of begging due to their disproportionate degree of vulnerability and poverty. It is worth mentioning that the court shaped its “indirect” discrimination doctrine in a different case involving alleged discrimination against Roma. In D.H. and Others v. The Czech Republic,[62] Roma children were disproportionately allocated to “special schools” delivering inferior education. While a chamber of the court held that the same educational test was applied to all Czech pupils, the grand chamber reversed, finding that the statistical data gave rise to a strong presumption of “indirect” discrimination, which meant that it was up to the government to prove that the differential impact was the result of objective factors not connected to the racial origins of the applicants. In D.H., the government was unable to provide satisfactory evidence, and the grand chamber found a violation of Article 14 taken in conjunction with the right to education within the meaning of Article 2 of Protocol 1 to the Convention.[63] It would be interesting to know if, in Lăcătuş, the court had used the theory of “indirect” discrimination, whether there would have existed enough evidence, including statistical data, for a sufficiently strong presumption of discriminatory treatment of Roma citizens by the Geneva police and, as a result, whether the court would have reached, mutatis mutandis, the same conclusion as the grand chamber in the case against the Czech Republic.
Finally, the court did not address the question of whether the applicant’s situation also falls under freedom of expression within the meaning of Article 10 and whether there was a violation of this guarantee. In its judgment, the court referred to a June 2012 decision of the Austrian Constitutional Court, in which a Salzburg public security law prohibiting begging on public grounds was considered contrary to freedom of expression.[64] It would have been interesting to know whether the court considers begging an “expression” within the meaning of Article 10 and whether this provision was infringed in the case of Lăcătuş. Having however already found a violation of Article 8, the court did not feel compelled to pronounce an additional ruling under Article 10. Judge Keller, in her separate opinion, expressed the view that begging is a form of expression falling under the scope of Article 10 and that the court should have declared this complaint admissible.[65] She shared, however, the opinion of the majority that it was not necessary, after having found a violation of Article 8, to examine the question of whether there had been a violation of that provision in the present case.[66] It is our understanding that, even if such an approach would not have changed the outcome of Lăcătuş, the finding that begging can be considered an “expression” under Article 10 could have been significant for potential future cases.
CONCLUSION
Lăcătuş v. Switzerland is a leading case for the protection of vulnerable people, and there is no doubt that, judging by the detailed and balanced reasoning, the court wanted to adopt several principles in this new area.
The court wanted to demonstrate that it does not act in a vacuum. To that end, it used many diverse external resources, such as the case law of the Inter-American Court of Human Rights and the African Commission of Human Rights, legal opinions of United Nations experts, and domestic laws and practice. This wide range of external sources indicates that the court considers it important to ground its opinions in international consensus or trends. In Lăcătuş, the comparative analysis allowed the court to show that the canton of Geneva’s solution went further than what was the trend in the majority of member states of the Council of Europe.
We are of the opinion that the judgment expresses considerations of humanity that meet the expectations in a regional human rights court. One of the most remarkable aspects is the use of the notion of human dignity in order to bring into play the right to respect for private life under Article 8, rather than relying upon Article 3 (prohibition of torture and other ill treatment).
A criticism that can be made against the judgment is the court’s choice not to engage in the examination of Articles 10 and 14 once it found a violation of Article 8. Despite the fact that this approach reflects the normal practice of the court and can be justified by the principle of procedural economy, these complaints would have been worth pursuing, in particular the discrimination allegation. In this regard, it must be recalled that the applicant, of Roma origin, belongs to one of the most vulnerable groups in Europe, a group that has suffered and continues to suffer discrimination and ill treatment on a daily basis, as recognized by the Court in its examination of the Article 8 complaint.
In light of what precedes, and in spite of the fact that the judgment does not resolve the fundamental issues underlying the case — namely poverty, marginalization, and discrimination — it nevertheless constitutes a significant step forward in the recognition of human rights.
[1] App. No. 14065/15 (Jan. 19, 2021), https://hudoc.echr.coe.int/eng?i=001-207377. The judgment is available only in French.
[2] Id. ¶ 92.
[3] Id. ¶ 116.
[4] Id. ¶ 2.
[5] Id. ¶ 4.
[6] Id. ¶ 5.
[7] Id. ¶ 16 (unofficial translation).
[8] Id. ¶ 5.
[9] Id.
[10] Id.
[11] Id. ¶ 6.
[12] Id. ¶ 7.
[13] Id.
[14] Id. ¶ 8.
[15] Id. ¶¶ 9–11.
[16] Id. ¶ 14.
[17] Id. ¶¶ 50, 118, 121.
[18] Id. ¶ 50.
[19] Id. ¶¶ 118, 121.
[20] Id. ¶ 116.
[21] Id. ¶¶ 118–23.
[22] Id. ¶¶ 76–79, 94–95.
[23] Id. ¶¶ 76–79.
[24] Id. ¶¶ 96–97, 101–02.
[25] Id. ¶ 107.
[26] Id.
[27] Id.
[28] Id. ¶ 108.
[29] Id. ¶¶ 108–10.
[30] Id. ¶ 109.
[31] Id. ¶ 114.
[32] Id.
[33] Id. ¶ 115.
[34] Id.
[35] Id. ¶¶ 124–27.
[36] Id. ¶ 54.
[37] Id.
[38] Id. ¶ 56.
[39] Id. (Ravarani, J., concurring and dissenting), ¶ 7.
[40] Id. ¶ 19.
[41] Id. ¶ 103.
[42] Id. ¶ 99.
[43] Id.
[44] Id. ¶ 100.
[45] The Council of Europe has forty-seven member states, but it is rather rare that comparative studies, which are conducted by the research division of the court, cover all the members.
[46] Id. ¶ 20 (Albania, Andorra, Finland, Georgia, Greece, Moldova, Portugal, Slovakia, and Ukraine).
[47] Id. ¶ 22 (Estonia, France, Ireland, Italy, Serbia, and Slovenia).
[48] Id. (Azerbaijan, Croatia, Liechtenstein, Luxembourg, Poland, Romania, and San Marino).
[49] Id. (Cyprus, Hungary, Montenegro, United Kingdom, and Turkey).
[50] Id. ¶ 23 (Germany, Austria, Belgium, Bosnia and Herzegovina, Spain, Russia, Latvia, Lithuania, Netherlands, Czech Republic, and Sweden).
[51] Id. ¶ 105.
[52] Id. ¶¶ 39, 112.
[53] App No. 46470/11, ¶ 109 (Aug. 27, 2015), https://hudoc.echr.coe.int/eng?i=001-157263.
[54] Id. ¶ 103.
[55] Id. ¶ 113.
[56] Third-Party Intervention, ¶¶ 8–12, Lăcătuş, App. No. 14065/15.
[57] Id. ¶¶ 13–17.
[58] Id. ¶¶ 18–24.
[59] Id. ¶ 25.
[60] Judge Lemmens’s concurrence in Lăcătuş touches on these issues. See id. (Lemmens, J., concurring and dissenting), ¶ 2.
[61] See, e.g., Moldovan v. Romania (No. 2), App. Nos. 41138/98 and 64320/01, 2005-VII Eur. Ct. H. R. 167 (extracts) (concerning destruction of houses and possessions); Hirtu v. France, App. No. 24720/13 (May 14, 2020), https://hudoc.echr.coe.int/eng?i=001-202442 (concerning forced evictions); Nachova v. Bulgaria, App. Nos. 43577/98 and 43579/98, 2005-VII Eur. Ct. H. R. 1 (concerning police brutality); V.C. v. Slovakia, App. No 18968/07, 2011-V Eur. Ct. H. R. 381 (extracts) (concerning forced sterilisation); Lakatošová v. Slovakia, App. No. 655/16 (Dec. 11, 2018), https://hudoc.echr.coe.int/eng?i=001-188265 (concerning shooting spree at Roma family’s home); Ctr. for Legal Res. v. Romania, App. No. 47848/08, 2014-V Eur. Ct. H. R. 1 (concerning death in a medico-social institution); R.B. v. Hungary, App. No. 64602/12 (Apr. 12, 2016), https://hudoc.echr.coe.int/eng?i=001-161983 (concerning verbal abuse and threats).
[62] App. No. 57325/00, 2007-IV Eur. Ct. H. R. 241; see also Oršuš v. Croatia, App. No. 15766/03, 2010-II Eur. Ct. H. R. 247.
[63] G.A. Serghides, The Prohibition of Discrimination Under the European Convention on Human Rights: Interpretation, Application and Mechanism, 31 Hague Y.B. Int’l L. 117, 133–34 (2018).
[64] Lăcătuş, App. No. 14065/15, ¶ 27.
[65] Id. (Keller, J., concurring), ¶¶ 3–13.
[66] Id. ¶¶ 14–17.
* Daniel Rietiker, PhD, is a Senior Lawyer at the ECtHR (Strasbourg), an international law lecturer at Lausanne University, and a member of the adjunct faculty of Suffolk University Law School (Boston). He was a visiting fellow at Harvard Law School in 2014. The views expressed in this piece are strictly personal. Mary Levine is a Law Student at Suffolk University Law School.
