Sanctioning Multinational Enterprises for Extraterritorial Human Rights Violations

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By: Martin Metz

 A recent and recurrent legal and political issue asks whether multinational enterprises (MNEs) are legally responsible for human rights violations that take place in foreign countries. Contemporary MNEs are commonly very powerful, as they dispose of important financial resources and potentially profit from conflicting nets of national legal systems. Consequently, MNEs may gain from globalization without being held liable for damage they cause.

Even if soft law mechanisms like the United Nations Guiding Principles of Business and Human Rights are improving, there are no enforceable international law mechanisms to sanction international law violations, as an article in Berkeley Law’s Travaux recently explained. Likewise, local remedies in the country where the injury occurred are frequently ineffective, as the host state itself may be involved in the human rights violation and the local legal systems are corrupt or ineffective. The most promising way to sanction MNEs and to compensate victims, therefore, is a civil lawsuit in the court of a developed country that can assert jurisdiction over the MNE. This approach is called human rights litigation. Due to its international political implications, this approach is especially vulnerable to case specific interpretations and substantive diminution.

I. Human Rights Litigation in the United States and Europe: Intent vs. Negligence

Put simply, intentionality and negligence currently distinguish the emphases of U.S. and European human rights litigation. On one hand, U.S. courts focus on intentional corporate wrongdoings, like killings or torture, which usually occur in cooperation with foreign state action. Similar claims have not yet been litigated in European courts and, if brought there, would face significant obstacles. On the other hand, European human rights litigation addresses negligent but physically harmful corporate behavior, enabling global enforcement of labor law and environmental law. To the contrary, conventional U.S. human rights litigation does not sanction negligent behavior, however harmful.

Two typical factual scenarios highlight the significance of this difference: those of Kiobel and Rana Plaza. In the Kiobel v. Royal Dutch Petroleum constellation, Royal Dutch Shell, a Dutch petroleum producer, allegedly intentionally helped the Nigerian government to kill and torture its citizens. In this setting, the victims sued Royal Dutch for damages in U.S. courts. In the Rana Plaza incident, an eight story commercial building, including a garment factory that manufactured goods for several international garment labels, collapsed in Bangladesh. Over 1,000 employees died and over 2,500 were injured. Victims in a case like Rana Plaza might seek compensation from the garment sellers who ultimately benefit from their negligent disregard for labor law standards.

II. Trend in the United States: The End of the Extraterritorial Regulation of Foreign Corporations

U.S. courts have long been trailblazers in the field of corporate human rights litigation but are currently taking a more conservative position. Claims for intentional human rights violations have frequently been litigated against U.S. and foreign corporations under the 1789 Alien Tort Statute (ATS). Special conflict of law rules, a long statute of limitations, and the structural advantages that U.S. rules of civil procedure bestow on plaintiffs bolstered ATS remedies.

However, the Supreme Court has recently punctuated the importance of the territoriality principle and considerably narrowed the applicability of the ATS with two decisions in the last two years. In the 2013 Kiobel decision, the Court held that the presumption against extraterritoriality applies to the ATS and that an ATS claim can only be brought in U.S. courts if it “touches and concerns the territory of the U.S. with sufficient force.” And in 2014, the Court decided in Daimler AG v. Bauman that a foreign corporation cannot be tried in the United States for something unrelated to its activities, because U.S. courts lack general jurisdiction over foreign corporations. To assume general jurisdiction, a corporation must be “essentially at home in the jurisdiction” where it is sued.

In the future, then, U.S. courts will not hear ATS claims for extraterritorial behavior brought against foreign corporations, and legal alternatives to the ATS do not mitigate this gap. The Kiobel decision made clear that a claim does not sufficiently touch and concern the U.S. territory in so-called “foreign cubed cases”—those that take place in a foreign country and involve a foreign plaintiff and a foreign defendant. Other federal statutes like the Torture Victim Protection Act or the Racketeer Influenced and Corrupt Organizations Act likewise provide no remedy, because they either do not apply to corporations at all or because they too have a limited territorial reach. Litigation under state tort law is not promising in these cases, because plaintiffs still must overcome the jurisdictional threshold Daimler established and face further substantial legal disadvantages, explored here in Part V.

Nonetheless, human rights litigation still seems viable if a plaintiff initiates a claim against a corporation whose parent resides in the United States rather than in a foreign country. After the Kiobel decision, it remains unsettled whether a claim brought against a U.S. corporation acting abroad sufficiently touches and concerns the U.S. territory, and circuit courts have already split over this issue. Furthermore, the question of whether the ATS includes corporate wrongdoings at all, which indeed triggered the Court’s grant of certiorari in Kiobel, remains unanswered as the Court subsequently ordered reargument and focused on concerns of territoriality.

III. Trends in Europe: Rising Awareness of the Responsibility of MNEs for Environmental and Labor Law Violations

Overseas, a new awareness of corporate responsibility has arisen, especially for negligent environmental and labor law violations that lead to physical harm. In 2013 and 2014, the European Commission and the European Parliament initiated a legislative proposal requiring corporations to publish their impacts with regard to environmental, social, employment, and human rights, as well as anti-corruption and bribery matters. Although ultimately unsuccessful, the Rana Plaza incident sparked legal proposals in Germany and France, which aimed to implement an enforceable legal duty for MNEs to prevent human rights violations worldwide. Moreover, courts in the Netherlands and in the United Kingdom already sanction MNEs for wrongdoings that occur abroad. For example, a Dutch court sanctioned Royal Dutch Shell for environmental pollution in Nigeria. The England and Wales Court of Appeals held that the asbestos mining company Cape PLC has a direct duty of care to an employee of one of its South African subsidiaries and that this duty of care was breached, because the corporation did not maintain a safe work environment. Each of these approaches focuses on negligent corporate behavior, showing a growing possibility of victims’ compensation for labor law standards and environmental law violations in Europe.

But intentional violations like killings and torture are less likely to lead to civil sanctions in European courts. This may be because it is extremely challenging to prove that subsidiaries or subcontractors intentionally violated human rights, and because it is difficult to attribute this intent it to the MNE. Even within a negligence framework, intentional human rights violations by employees are often considered to be “frolic” outside the scope of the employee’s work, and thus not attributable to the MNE. The breach of a corporate duty of care not to commit intentional human rights violations cannot easily be assumed.

Although claims of intentional human rights violations against MNEs often are unsuccessful, direct perpetrators are not necessarily spared, as European systems focus instead on criminal sanctions. The German Code of Crimes against International Law, for instance, incorporates the principle of universality and hence provides a means of punishment of natural persons who commit human rights violation anywhere in the world.

IV. Rationale for Differences Concerning the Intentional Commitment of Human Rights Violations: Procedure and Punitive Damages

Disparities in the viability of litigation in cases involving intentional human rights violations can be traced back to fundamental differences in the legal systems. The European court’s obstacles, which make it difficult to prove intentional violations, are not necessarily absent in U.S. procedures. However, procedural differences in the United States make these obstacles less important. Plaintiffs can rely on lower pleading standards, make use of pre-trial discovery and class actions, take advantage of contingency fee agreements, and avoid cost shifting. Unlike many European systems, the U.S. legal system allows for punitive damages, private attorney generals, and the combination of compensation and punishment in one procedure. This leads to a situation in which plaintiffs can more easily initiate rigorous procedures in U.S. courts, with the possibility of reaching settlement without needing to prove every element of a claim. In practice, few ATS cases end with a verdict against corporations—most are settled or dismissed. Such settlements occur with greater frequency in American rather than European forums.

V. Dogmatic Legal Differences: ATS vs. Common Torts

As American and European lawyers alike look for ways to replace the ATS as a core mechanism of transnational human rights litigation, they have focused on the use of common tort law as a legal alternative. To be sure, a regime that directly enforces human rights as well as protects the physical integrity of the victims has much more vigor than a regime that merely emphasizes the latter. However, the assertion of human rights as common tort violations—even if theoretically feasible—leads to important structural disadvantages for the plaintiffs.

First, because the ATS directly incorporates human rights as “U.S. law with international law,” U.S. courts follow a unilateral choice of law approach, which always leads to the application of U.S. law. On the contrary, the application of common tort law induces a bilateral conflict of law analysis in Europe as well as in the United States, which might lead to the application of a foreign tort regime. European courts would look to Art. 4 para 1 Rome II Regulation and apply the law of the country in which the damage occurred. As extraterritorial violations materialize in foreign countries, this rule may lead to the application of an inconvenient and possibly less protective foreign tort regime. Similarly, the multiple U.S. conflict of law approaches—at least in foreign cubed cases—leads to an application of foreign law.

Second, forum non conveniens, abolished under European law, impedes human rights proceedings in U.S. courts as the application of foreign law is a factor weighing in favor for a dismissal on forum non conveniens grounds. Third, a substantive disadvantage of common tort regime is that statutes of limitation are shorter and the rules of equitable tolling less likely to apply.

VI. Further Thoughts: Responsibility of the Home Countries

In the United States, the question is whether intentional human rights violations committed by U.S. corporations will still be sanctioned in the future and whether there has ever been sufficient awareness in cases involving corporate disregard for labor law and environmental standards. In Europe, the question is whether European corporations are unduly sheltered in cases of intentional wrongdoings. Whereas before, the U.S. legal system offered at least some recourse, European corporations can nowadays only be held liable for intentional human rights violations in rare circumstances that fit Europe’s more stringent requirements.

Overall, the issue of whether and how MNEs should be legally responsible for extraterritorial human rights violations remains an open hot topic, and we can expect further national and international developments addressing the important intersection of global business and human rights. To come to an effective and coherent process of sanctioning MNEs, home countries must assume responsibility and focus on the wrongdoings of their respective MNEs. The hope, then, is that the United States will not fully undermine the potential of the ATS and will bolster accountability mechanisms for U.S. corporate negligence. Likewise, the hope is for European countries to foster the sanctioning of intentional human rights violations committed by European corporations.

Martin Metz is a Ph.D. student at the University of Cologne and a Visiting Researcher at Berkeley Law. He is a student contributor to Travaux.

Book Review: Failed States and the Origins of Violence, A Comparative Analysis of State Failure as a Root Cause of Terrorism and Political Violence, by Tiffiany Howard

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By: Martin Meeùs
Terrorism and other forms of political violence are more present than ever in modern societies but are unequally spread around the globe. Why are some regions of the world “terrorist factories” while others are more moderate? In the view of Failed States and the Origins of Violence, by Tiffiany Howard, the FARC, Somali Al-Shabaab militants, Al-Qaeda, and the Tamil Tigers have at least one common characteristic: they were born in failing or failed states.

Howard’s study addresses the lack of consensus regarding the environmental conditions and breeding grounds that give rise to terrorism and political violence. To do so, the author tries to tackle the absence of empirical and quantitative research in the field. Her central hypothesis is that failed states are the roots of terrorism and political violence. The author insists on the novelty and uniqueness of her study, given her use of the “Global Barometer Project” to examine the reasons why certain individuals are more inclined to use political violence than others. Contrary to other macro-level studies on terrorism, not only does the author explain how weak states contribute to terrorism but also which precise features of these states encourage terrorist activities. Additionally, this study is not only descriptive but also predicative. Based upon her descriptive analysis, the author tries to determine which regions will be more inclined to give rise to terrorism and political violence in the future. The author makes ambitious predictions and goes as far as stating that sub-Saharan Africa may witness an uncontrollable level of violence never before seen.

In the first part of the book, Howard deconstructs all major existing studies on the subject of terrorist origins. She then discusses different world regions, beginning with the part of the world that encompasses the greatest number of failed states: sub-Saharan Africa. According to Howard, it is an ideal start to support her hypothesis. The second region discussed is the Middle East and North Africa, since it is the region most plagued by terrorist groups. She continues with South Asia and Southeast Asia, regions that are in-between in terms of failed states and terrorist groups. Finally, Latin America is discussed as a region that encompasses few failed states compared to the regions addressed but where violent extremism is still present.

For the four regions discussed, the author tries to empirically prove her hypothesis that failed states are breeding grounds for terrorism and political violence. The same precise and methodic approach is used in all four chapters dedicated to the four regions. First, she introduces the region at stake, its history of political violence, and the current situation. Then, she describes the variables used in order to apply her hypothesis to the particular region. These variables, which include the level of political violence, the presence of the state, or the level of security, are based upon interviews and specific questions asked of members of the population of the analyzed region. After that, she presents a logit model, which is a form of mathematical equation that evaluates the probability for individuals of each country to commit acts of political violence. Finally, she applies the logit model to the data and discusses the findings in the form of statistical results. In other words, she applies barometer survey data to logit models in order to assess the link between the failure of the states and the level of political violence.

Howard shares novel and interesting views. She argues that the promotion of democracy, modernization, and religious freedom in these regions should be addressed through state building rather than on individual bases. Regarding Islam, Howard states that there is nothing in the religion itself that favors radical ideologies and terrorism. Rather, the reason why Al-Qaeda, ISI, the Muslim Brotherhood, Fatah, or Hamas perpetrate acts of political violence is not related to the nature of Islam but rather to the inability of the governments to provide economical and social goods as well as security. Radical Islam is born with the failure of states and as a result of a repressive political climate and lack of economical development. Howard further argues that the use of political violence by an individual against Western societies and the United States, in particular, implies the support of political violence in his own state.

Thus, Howard makes interesting assumptions and hypotheses that merit discussion. However, the process employed by the author to reach these conclusions is difficult to understand. Indeed, the methodology she uses, which focuses on statistics and mathematical equations, is indigestible and unpersuasive. The reader is overwhelmed by variables, data, and numbers. Ultimately, the reader finds himself asking: is it really possible to address the relationship between state failure and terrorism through interviews that have been transformed into numbers and applied to mathematical equations?

When statistical findings do not entirely support her hypothesis, Howard tries to correct the discrepancy with more dogmatic and idealist arguments. She invokes the complexity of the states, possible cultural exceptions, or the fact that the sample used for interviews may not be representative. These are indeed crucial factors to take into account, and that is precisely the problem of this study. These are the questions that the reader wants to ask at the end of all chapters, for every region discussed. Are data from 2006 still relevant to address terrorism in South and Southeast Asia in 2014? Is a sample between 750 and 1,300 respondents from countries in the Middle East and North Africa sufficiently representative to construct a theory of the states? How can one reduce such complex societies to a couple of logit models? There are very few data sets available and the author tries her best to take the most out of them. But human sciences cannot be reduced to mathematical equations and confined to statistical data. The work is certainly unique, but the Howard’s desire for empiricism is too great and she fails to convince.

Buy Failed States and the Origins of Violence: A Comparative Analysis of State Failure as a Root Cause of Terrorism and Political Violence(affiliate link)

Martin Meeùs is a Belgian L.L.M. Candidate at Berkeley Law. He is a student contributor for Travaux.


Book Review: A Scrap of Paper: Breaking and Making International Law during the Great War, by Isabel V. Hull

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By: Christopher Casey

On August 28, 1913, Andrew Carnegie attended the inauguration of the Peace Palace in The Hague. Carnegie had given the funds to provide a new home for the Permanent Court of Arbitration, an institution that those in attendance hoped would further the development of international law and encourage the peaceful resolution of international disputes. A little less than a year later, on August 4, 1914, and a little more than one hundred miles from the Palace, the German army marched into neutral Belgium in violation of international law and fired the first shots of the Great War.

Isabel V. Hull reminds us that the age of the Great War was also an age of international law. Many of international law’s greatest modern publicists—Bluntschli, Rolin-Jaequemyns, Asser, Root, Westlake—produced their most important work in the decades prior to the outbreak of the war. Nor was this advance purely an intellectual exercise. The foreign offices of the Great Powers all had legal advisors or departments. Moreover, several major conferences were held and treaties signed, most notably at The Hague in 1899 and 1907, to codify the laws of war.

By engaging in a comparative analysis of Britain, France, and Germany, Hull attempts to demonstrate two things. First, “that international law was central to how and why the Great War was fought”. Second, that Germany was unique among the Great Powers for its emphasis on the doctrine of military necessity as a rationale for breaking both the customary and treaty-based laws of war.

Hull begins with a prologue entitled: “What We Have Forgotten,” in which she posits that the erasure of international law from the historical memory of the Great War was the result of inter-war revisionism and Weimar’s apologists. The narrative then starts with the German march into Belgium and the horrific massacre of Belgian civilians. She then proceeds topically with an assessment of Germany’s conduct as an occupier (it was poor) and its use of the new and devastating weapons developed during the conflict—zeppelins, submarines, poison gas, and flamethrowers. In each case, Hull awards lower marks to German officials than to their entente counterparts for the consideration and seriousness with which they took international law. Hull does explore Britain’s naval blockade, an act that led to the deaths of thousands of German civilians, but she provides ample evidence that Britain’s civilian and military officials consciously tread carefully and were concerned about compliance with international law or norms.

Hull’s explanation for why Germany was so different from its fellow belligerents is the only unsatisfying part of her otherwise wonderful study. In sum, Germany paid less attention to international law because of Prussian militarism. While she does not use that phrase explicitly, Hull does contend that the German civilian leadership had “assimilated the military [legal] arguments, which [was] not surprising given the military’s high status institutionally and in public opinion and its thorough penetration into German legal writing.”

But the Great War was fought on two fronts. The western war was waged between states. The eastern war was waged between empires.  By confining the study to Germany, France, and Great Britain, Hull set her gaze squarely on the Western Front with its wholesale slaughters in clearly delineated trenches and the battles at sea. Absent from her analysis are the mass deportations, ethnic massacres, and conflicts of national liberation and survival that characterized the eastern front for Russia, Austria-Hungary, and Germany. In the East and West, Germany was the only power to occupy vast swathes of enemy territory for much of the war, a position that had the consequence of making it subject to the international laws of war more often than the other powers. When Germany abused the civilian Russian population living in Russian territory, it was an international crime. When Russia abused the same population, it was a domestic affair. Shifting her gaze eastward would have complicated and enriched her explanation for why Germany was far more willing to cry “military necessity” than its Western opponents.

Hull’s masterful book is useful for scholars of international law, political science, and history.  She engages effectively with scholarship in all three arenas, going so far as to claim that the realist critique of international law within political science is itself a product of interwar German apologias. This is a fantastically interesting and important book for revitalizing the historical study of applied international law. In a departure from many histories that engage with complex international legal questions lightly, Hull instead goes heavily into the specifics of the important legal texts and government documents to bring together the publicists and practitioners. In doing so, she has successfully brought the law back into the narrative of the Great War. Thus, Hull’s work has opened, rather than closed, the subject of the Great War’s relationship to the many international legalities in which it was waged. For that, scholars of history, political science, and international law should be grateful.

Buy A Scrap of Paper: Breaking and Making International Law During the Great War, by Isabel V. Hull. (affiliate link)

Christopher Casey is a J.D. Candidate at the School of Law and Ph.D. Candidate in the Department of History at the University of California, Berkeley.  He is a student contributor to Travaux.


 

This Day in International Law – December 5th

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By: Liana Solot

On December 5th, 1978, the Soviet Union (USSR) signs a “friendship treaty” with the Democratic Republic of Afghanistan. This act was significant to international law, mostly because this treaty was later used as a pretext for the Soviet invasion. Major uprisings occurred regularly against the government led by members of the traditional establishment who lost their privileges in the land reform. The government responded with heavy military reprisals and arrested, and exiled and executed many Mujahideen (holy Muslim warriors). The Mujahideen belonged to a number of different factions, but all shared, to varying degrees, a similarly conservative ‘Islamic’ ideology. This led to the Soviet war in Afghanistan the following year, in December 1979, when the USSR organized a massive military airlift into Kabul. Soviet forces secured Kabul, against Darul Aman Palace. With Aman’s death, Babrak Karmal took place as Afghanistan’s new head of government.

 Liana Solot is an L.L.M. Candidate at Berkeley Law. She is a student contributor for Travaux.

November 28 in International Law

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By: Laurence Cromp-Lapierre

The right to vote is inextricably linked to democracy and to the protection of freedom and equality. Indeed, universal suffrage appears to be a self-evident right. However, some groups have encountered significant barriers preventing them from exercising such rights.

On November 28, 1893, New Zealand, then a self-governing British colony, granted women over 21 years old the right to vote at the general election. The elections for the Maori electorates occurred later, on December 20, 1893. The liberal party won and Richard Seddon became Prime Minister.

New Zealand’s recognition of women’s rights to vote has been followed by other countries and become entrenched in international law. Important international treaties, such as the International Covenant on Civil and Political Rights as well as regional agreements such as the American Convention on Human Rights, enshrine citizens’ claims to universal and equal suffrage.

Laurence Cromp-Lapierre is an LL.M. Candidate at Berkeley Law. She is a student contributor for Travaux. 

Fighting Impunity in Syria: The International Criminal Court

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By: Martin Meeùs

The Need for Accountability

Even though all countries acknowledge the atrocities committed by the Syrian regime and the rebels during the three-and-a-half-year civil war, a military intervention against Syrian President Bashar al-Assad and his regime seems to be ruled out by the international community. A few months ago, the emergence of the Islamic State in Iraq and the Levant (ISIS), an organization committing unprecedented acts of violence, pushed the United States and its “allies” to conduct air strikes but only against this particular organization and not against the Syrian regime.

This international posture does not exclude the fact that serious international crimes must be punished and that perpetrators of these crimes must be held accountable in some way. When it comes to criminal accountability in the Syrian civil war, thus far, the International Criminal Court (ICC) has monopolized the debate. The High Commissioner for Human Rights has urged the United Nations Security Council (UNSC) several times to refer the situation to the ICC.  Ultimately, the ICC may not be the best solution.

Three Ways to the ICC

There are currently three ways in which Syria could be brought in front of the International Criminal Court. First, Syria signed the Rome Statute but did not ratify it. Although it seems unrealistic that al-Assad would ratify a treaty that could be highly damaging to his regime, it is not impossible. Indeed, diplomatic talks already led Syria to join the Chemical Weapons Convention (CWC) as a condition to avoid a military intervention from abroad. Similarly, the international community could use the ratification of the Rome Statute as a bargaining chip against Syria.  Second, the Syrian government could send a declaration to the Registrar of the Court, accepting its jurisdiction for this particular situation only. Such voluntary ad hoc submission also seems unlikely but is not altogether impossible given the CWC precedent.  Third, Article 13(b) of the Rome Statute allows the UNSC to refer any situation to the ICC, even if the targeted country is not party to the Rome Statute. The country’s consent would not necessarily be needed. This is seemingly the only path currently available for Syria to be brought to the ICC.

Significantly for Syria, the UNSC has referred two situations to the ICC in the past, though these have been rife with complications.  In 2005, the UNSC referred the situation in Sudan, and the Court initiated investigations against seven individuals, including against the President, Omar al-Bashir. After nine years, four individuals are still at large. This includes the president, who is still freely traveling in neighboring countries. Again, in 2011, the UNSC referred the Libyan conflict to the ICC. The court issued warrants of arrest against Abdullah Al-Senussi, former head of the military intelligence, and against Saif Al-Islam Gaddafi, Muammar Gaddafi’s son. Al-Senussi’s case was declared inadmissible by the court. As for Saif Al-Islam, despite urgent calls from the court and from the international community, Libya refuses to extradite him to The Hague on the basis of the complementarity principle. Both referrals are struggling to go forward and are considered as failures for the time being.

Despite these difficulties, not only is a UNSC referral the most likely option for the Syrian conflict, but there is also UNSC movement on this front.  On 14 January 2013, Switzerland sent a letter to the UNSC on behalf of more than fifty countries, asking to refer the Syrian civil war to the ICC. While the referral was signed by a diverse set of countries, three permanent members of the UNSC (the United States, China, and Russia) were hostile to the idea of a referral at this time, stagnating the process.  Seven months later, on 21 August 2013, the Syrian regime perpetrated chemical weapons attacks in the Ghouta region of Damascus. Al-Assad effectively crossed President Obama’s “red line”.  As a result, the United States changed its position and decided to support an ICC referral by the UNSC.  At this point, the project finally took off.

The shift in the US position is significant.  In early 2013, then-Secretary of State Hillary Clinton held the view that treating al-Assad as a war criminal would “complicate” the situation. The United States as a result chose not to co-sign the Swiss letter initiating the draft resolution. The United States only changed its position upon the release of the UN report confirming the regime had used chemical weapons against its civilians. The United States’ change in attitude was surprising as it went as far as lobbying at the UN for co-sponsorship of the resolution. This case illustrates a broader shift in the United States’ position, becoming less and less hostile towards the ICC.

Nearly a year after the chemical weapons attack, on 22 May 2014, France presented the draft resolution S/2014/348, co-sponsored by sixty-five countries, to the UNSC. With thirteen votes in favor and two vetoes (Russia and China), the resolution was set aside.

Russia and China vetoed the resolution for three principle reasons.  First, Russia and China invoked the principle of non-intervention in the internal affairs of a state to justify their veto. Their attachment to the principle of sovereignty is well known and often repeated. Second, Russia and China argued that the resolution is one-sided, focusing solely on al-Assad’s regime and not on the crimes committed by non-state actors. Third, Russia and China feel as though they were fooled by the recent Libyan resolution 1973, on which they both abstained. The countries that intervened in Libya acted beyond their mandate in order to depose Muammar Gaddafi. Russia and China are therefore likely to be much more prudent regarding all resolutions on Syria that could lead to any further unwanted actions such as al-Assad’s deposing.

Nevertheless, if the Russian veto was expected in May 2014, the Chinese position was more ambiguous.  Ultimately, it stemmed from the above stated reasons, as well as a reaction to France’s decision to submit the resolution. There were no illusions regarding an immediate ICC referral, but France had other reasons to submit the draft resolution to a vote. First, it embarrasses, alienates, and isolates Russia and China in the UNSC. Second, it sets the basis for the day when al-Assad’s regime will eventually fall. Third, it shows that most countries in the UNSC are still concerned by the Syrian situation and continue to fight against impunity.

 Potential Positive and Negative Effects of an ICC Action

ICC action could foment several positive and negative effects for both Syria and the Court.  From the Syrian perspective, an ICC referral would have symbolic importance, as it would affirm the commitment of the international community towards accountability in Syria. An intervention from the ICC may also have a deterrent effect on the individuals perpetrating crimes falling under the ICC jurisdiction.  For the ICC, the referral would have strategic benefits beyond the noble and primary objective of fighting impunity within Syria. A referral that would lead to successful trials would give the opportunity for the ICC to play a role and hopefully have an impact in a major conflict. It would also help to dispel the criticism that the Court’s sole focus is Africa.

From the negative perspective, for Syrians, international tribunals are extremely expensive and so will be an ICC action. It is not clear that this is where Syrians want to see the international money spent. Moreover, the ICC would only indict a very small number of defendants.  Finally, Syrians may prefer a national trial that could lead to the death penalty, rather than an ICC trial, which does not use the death penalty and has comparatively “comfortable” prison conditions in The Hague.  For the ICC, there is a great chance that a trial will never come to fruition. Al-Assad could remain President after the war, he could possibly negotiate for the charges to be dropped against him, or the Syrian population could refuse to extradite him to the Netherlands. Referring the Syrian situation to the ICC before the end of the war and thus without being able to fully assess if it is the most suitable forum may therefore be harmful for the Court.

The ICC May Not be the Best Solution Per Se

Even though an ICC referral would have significant symbolic and political effects, it may not currently be a suitable solution for either Syria or the ICC. Referring a case to the ICC while the country remains in conflict could prove to be too risky of a bet. Choosing which accountability process is the best suited is a highly important and sensitive decision that has to be made on a case-by-case basis. The factors to be taken into account are innumerable and can often not be known before the end of the conflict: will Al-Assad still be President at the end of the conflict? What role does the Syrian National Coalition intend to play? Will the next regime be able to objectively prosecute perpetrators of mass atrocities on both sides? Moreover, the Libyan and Sudanese precedents proved that referring a situation to the ICC, without the consent and therefore the guarantee of the full commitment of a country, is often not ideal.

Finally, among all of these other concerns, the increase in power of ISIS radically changed the situation. Now, al-Assad and the members of the UNSC share a common enemy. There is unlikely to be another draft resolution presented to the UNSC any time soon. For now, the most important actions to take are documenting crimes and collecting ample evidence for later prosecution. Drafting statutes for potential ad hoc or hybrid tribunals is also useful in order to prepare for the day when the circumstances will allow action to be made towards Syrian accountability. This is precisely what the independent International Commission of Inquiry on the Syrian Arab Republic, mandated by the UN Human Rights Council as well as some NGOs are doing.

Martin Meeùs is a Belgian L.L.M. Candidate at Berkeley Law. He is a student contributor for Travaux.

Five Issues To Watch on Climate Change Ahead of the Paris Summit

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By: Remi Moncel

These past weeks have been rich in announcements on climate change, and the next round of United Nations climate talks begins in Lima, Peru on December 1. That conference paves the way to a major climate summit in December 2015 in Paris, France. The coming year will be critical in the fight against climate change, an issue with wide-ranging impacts. Its effects on water availability and crop yields make climate change a livelihood and national security issue. The threat that sea-level rise poses to low-lying States makes it a human rights issue. The world’s necessary transition from fossil to renewable fuels makes it an energy and economic issue. Here are the highlights of recent developments and five issues to watch on the road to Paris.

The Science

 According to the National Oceanic and Atmospheric Administration (NOAA), 2014 is currently on track to be the warmest year ever recorded. The world’s leading scientists agree: humans cause climate change, our climate is already changing, and at the current pace the effects on people and the environment will be dire. The Intergovernmental Panel on Climate Change (IPCC) summarizes every four years the state of peer-reviewed climate change science. The IPCC’s latest report came out in 2014 and describes more clearly than any previous report “the likelihood of severe, pervasive and irreversible impacts for people and ecosystems.” It also highlights the greater risks posed “to disadvantaged people and communities in countries at all levels of development.” The U.S. National Academy of Sciences, the American Association for the Advancement of Science, the U.S. Global Change Research Program, and other countries’ science academies have come to similar conclusions.

Worse, our efforts to fix the problem are woefully inadequate. All countries’ current commitments to reduce greenhouse emissions, when added together, fall short of what we need to avoid the worst consequences of climate change. And it’s not even close. World leaders vowed in 2009 to limit an average rise in global temperatures to two degrees Celsius (3.6 degrees Fahrenheit) above pre-industrial levels. But every passing year without more serious cuts in emissions makes it more likely that we will miss that goal, with severe consequences for people and the environment. A new report by the United Nations Environment Program shows just how much ground we need to make up.

National and Local Action

Despite this bad news, it is not too late to correct course, but doing so will require aggressive policies. National emissions in some countries have started declining and some governments have made significant commitments. Grassroots movements, like the 400,000-person march in New York City this fall, may also signal a shift in public attitudes on the issue. Some businesses are also demonstrating climate leadership by going beyond what regulations require. And some mega cities around the world are taking proactive steps to reduce emissions and increase their resilience to climate change.

Five years ago, the United States, the world’s largest historical emitter of greenhouse gases, pledged to reduce its emissions by seventeen percent below 2005 levels by 2020, and just this month, President Obama announced a reduction goal of twenty-six to twenty-eight percent by 2025. Reaching these targets will depend on U.S. regulations and possibly new legislation. The Environmental Protection Agency has been rolling out a series of regulations tightening automobile fuel economy standards and allowable emissions from new and existing power plants.

The European Union is more ambitious than the United States, with planned reductions of twenty percent by 2020 below 1990 levels, at least forty percent by 2030, and eighty percent by 2050.

The developing world too is acting. China just pledged to peak its emissions of greenhouse gases around 2030 and possibly earlier, to cap its coal consumption in 2020, and to source twenty percent of its primary energy consumption from “non-fossil fuels” by 2030. India pledged to reduce the emissions intensity of its gross domestic product by twenty to twenty five percent by 2020 compared to 2005, and the country is expanding its renewable energy capacity. And Brazil enacted national laws to reduce deforestation.

Other countries are laggards. For example, Canada, a developed country that should be reducing its emissions, is actually projecting an emissions increase of thirty-eight percent by 2030. And Australia’s Prime Minister oversaw the repeal of a national carbon tax and has taken the defense of the coal industry.

Climate Diplomacy

The next major international milestone is the twenty-first Conference of the Parties to the United Framework Convention on Climate Change (UNFCCC) in Paris in December 2015. Countries are supposed to adopt “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties.” That carefully negotiated language means that the agreement will include commitments by all major economies, unlike the Kyoto Protocol, which required only some developed countries to make quantified reductions in greenhouse gases.

Over the next year, countries will put on the table their proposed climate commitments. Some have already started. President Obama and President Xi, in a historic move, jointly announced this month their countries’ respective opening offers. The two countries’ commitments are not bold enough, but they could be strengthened over time, and they represent a major breakthrough in an international process long crippled by an acrimonious divide between developed and developing countries. Now, the world’s two largest polluters and economies are starting to face their respective responsibilities and call on everyone to step up in time for the summit in Paris.

 Technology

Clean energy technology is critical to the world’s transition to a low-carbon economy. It determines how quickly and cheaply we can wean developed countries off fossil fuels. It also determines how easily we can decouple economic growth from a rise in greenhouse gas emissions, a particular concern for developing countries with legitimate economic and development aspirations.

For a long time, renewable energy was costly and only competitive with coal and natural gas thanks to expensive government subsidies. That is no longer true. The production costs of solar panels and wind turbines have plummeted in recent years. In several markets, the cost of electricity from renewable sources already rivals coal and natural gas.

Still, it will take time to retire existing coal power plants and source most of our power from clean sources. There are also political and institutional barriers to faster diffusion of clean energy technology. The fossil fuel industry retains greater access to political capitals than the nascent clean technology sector. For example, a recent report estimates that the fossil fuel industry, despite its healthy annual profits, receives $88 billion per year in subsidies from developed country governments. Banks and utilities around the world are also more hesitant to invest in clean technologies because they are less established and tested. That makes them more expensive to finance.

Finance

 The climate deal in Paris next year will include a financial component. Developing countries are looking for support to meet their growing energy needs through renewable rather than conventional fuels. They also need finance to build their resilience to the inevitable and growing impacts of climate change. The regions most affected by climate change are also the poorest and the least responsible for the problem. Developed countries can help finance so-called adaptation programs to respond to a wide array of impacts, including rising sea levels, droughts, floods, and decreasing crop yields.

In Copenhagen in 2009 and again in Cancún the following year, parties to the UNFCCC agreed to mobilize $100 billion per year starting in 2020 from a range of public and private sources. As part of this commitment, countries established the Green Climate Fund, based in South Korea. Countries have already pledged nearly $10 billion to the Fund, which is still being set up. For example, the United States pledged $3 billion, Japan $1.5 billion and Norway $1.3 billion. Several developing countries have also joined the effort, including South Korea, Mexico, Panama, and Indonesia. This first string of contributions is not enough, but it is a good start and perhaps indicates a collective desire to get serious about climate change.

On finance and on other issues, the climate conference in Lima provides the next big opportunity for countries to show real leadership. These past weeks’ announcements have provided some valuable momentum, but the gap remains large between where we are and where we need to be. The road to Paris over the next year will tell us just how serious world leaders are about bridging it.

Remi Moncel is a J.D. Candidate at Berkeley Law. He is the Co-Editor-in-Chief of the Berkeley Journal of International Law and a student contributor for Travaux.

Recent UN efforts on business and human rights: How can international law be enforced on private corporations?

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By: Liana Solot

On June 27, 2014, the United Nations (UN) Human Rights Council reaffirmed its 2011 endorsement of the UN Guiding Principles on Business and Human Rights. This resolution was adopted by consensus, following the June 26 resolution establishing an open-ended Inter-Governmental working group to negotiate a legally binding international instrument on transnational businesses with respect to human rights. This represents one of the many recent efforts towards promoting international corporate social responsibility standards.

The 2011 Guiding Principles established a global standard for addressing business activities’ adverse impacts on human rights. They promote a three-pillar framework: (1) the State duty to protect human rights; (2) the corporate responsibility to respect human rights; and (3) access to a remedy for victims of human rights abuses. Collectively, this framework is known as Protect, Respect, and Remedy (PRR). The Guiding Principles require companies to proactively take steps to prevent, mitigate and, where appropriate, remediate their adverse impact on human rights. However, finding ways to enforce these non-legally binding principles has been a difficult task.

The issue of how to make transnational corporations liable under international human rights law has become increasingly urgent for activists and scholars, but is still a huge legal challenge. Historically, international human rights law has been considered a way to protect individuals from states’ arbitrary use of power, not from private entities, while corporate law has traditionally been treated as a domestic matter. For many, the idea of shifting the responsibility to protect human rights from governments to businesses may seem odd at first, but today, individual corporations can have as much power and influence as entire countries, and should therefore be held liable for violations. Unfortunately, there is still a legal gap to be filled with the development of international legal obligations that can effectively be imposed on corporations, with the additional possibility of applying extraterritorial legislation.

In most cases, businesses make decisions to pursue profits without regard for potential human rights violations resulting from their activities. Labor and environmental rights are more prone to abuse by transnational corporations. According to the 2014 Walk Free Foundation index, almost 36 million people live in “modern-day slavery” conditions, mostly from human trafficking, forced and child labor, and hazardous work environments. Recent reports demonstrate the proliferation of “sweatshops” and horrifying work conditions in developing countries, mostly where giant international brands seek contractors for low-cost labor. Desperate pleas for help from Asian workers have been found hidden in products sold by giant brands like Primark and Kmart. Furthermore, Zara was involved in a slave labor scandal in Brazil, where it had illegal factories staffed with Bolivian and Peruvian immigrants working in slave-like conditions. Mechanisms must be created to require foreign retailers to ensure that factories involved in their garment supply chain are safe places to work.

The UN’s Guiding Principles alone will definitely not bring these and other human rights violations to an end, but they will serve as a foundation for developing better enforcement mechanisms and possibly binding standards of good practice. One of these positive developments could be the upcoming working group, created by the June 26 resolution, to negotiate an legally binding international instrument. This working group is expected to start its deliberations in mid-2015 and will hopefully focus on effective ways to implement the UN Guiding Principles.

The Sustainable Development Goals (SDGs) are also expected to be launched in 2015, representing another opportunity for businesses to take an active role in the humane development of society. During the Rio+20 United Nations Conference on Sustainable Development in Rio de Janeiro, Brazil in June 2012, UN Member States decided to develop a set of SDGs for the post-2015 development agenda. Goal No. 12.6, specifically, seeks to “encourage companies, especially large and trans-national companies, to adopt sustainable practices and to integrate sustainability information into their reporting cycle”. However, the definition of “sustainable practices” needs to be more clearly defined, using convincing good practice standards for companies to follow. This will depend on a global partnership with the active engagement of governments, civil society, and the private sector.

Despite these efforts, it may still take many years before companies actually take human rights standards and goals seriously and adopt them not only through theoretical corporate policies made available on their websites, but also by taking concrete actions to prevent violations or remedy eventual damages. Businesses will naturally resist binding international obligations placed upon them, so how will they be convinced that protecting human rights can also be a beneficial corporate policy? Why would some states that do not even accept all international human rights standards domestically, for example, agree to subject their companies to such standards under international law? The idea is that these standards should be enforced on all companies, even where national laws are poorly enforced, or not at all.

Since establishing the Guiding Principles, the UN has been trying to create ways to operationalize the principles and promote corporate responsibility internationally. The UN Secretary-General’s Special Representative for Business and Human Rights, John Ruggie, made an important advance in this direction by providing an interpretative guide to the principles and providing assistance for companies to construct human rights due diligence regimes. The fact that companies and governments have been discussing this issue is a huge achievement. However, the question of how to implement the Guiding Principles, establish due diligence rules, and create the requisite enforcement mechanisms remains controversial.

Changing businesses’ internal culture will be difficult. The first requirement will be to have businesses incorporate social responsibility standards in their internal corporate policies and structure. In turn, this will demonstrate how taking concrete actions and creating due diligence regimes to prevent human rights abuses can decrease risks and expenses (i.e. brand reputation, labor lawsuits, penalties for environmental damages, etc.). One possible step in this direction may be to promote sustainable development and responsible management in business schools and higher education institutions. The idea of aligning business management education with sustainable development best practices seems like an effective way of promoting awareness in the world’s future business leaders.

Because it is evident that the private sector will be critical to achieving the SDGs, the UN Global Compact has called on business schools to promote the Principles for Responsible Management Education (PRME). In October 2014, participants at the “Third Global Forum for Business as an Agent for World Benefit” workshop issued a call for action for management education and engagement to advance the SDGs. Today there are over 500 business schools from around the world that have adopted the PRME in their academic curricula and research institutions.

Another UN initiative in this context will be the upcoming annual UN Forum on Business and Human Rights, which will take place in Geneva, Switzerland, from December 1 through 3, 2014. It is open to states, business enterprises and associations, civil society organizations, trade unions, victims, academics, students, the media, and any other relevant stakeholder. This forum represents another attempt to promote the widespread dissemination of the “Protect, Respect and Remedy” framework and to discuss national action plans for implementation.

Although it may still take many years, these combined efforts, global principles, guidelines, and goals may soon transcend the theoretical discussions and workshops to become concrete corporate practices. Hopefully, with the efforts of the international community, the new generation of business leaders and executives are better prepared to address the prevention, or at least minimizing, of human rights violations resulting from corporate activities. Unfortunately, until this change in corporate culture occurs and effective enforcement mechanisms are created, the world can expect to see many more incidents of human rights violations as globalization promotes international expansion of harmful business practices.

Liana Solot is an L.L.M. Candidate at Berkeley Law. She is a student contributor for Travaux.

Settlements & Borders: Palestine, Israel, and the International Criminal Court

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By: Aaron Murphy

Will Palestine join the International Criminal Court? The 2012 installment of Palestine as a “non-member observer state” at the United Nations has reignited a caustic debate on the merits of Palestinian accession to the Rome Statute. ICC involvement in Gaza and the West Bank offers the alluring promise of ostensibly impartial judicial oversight, the potential modicum of justice for alleged war crimes and crimes against humanity committed on Palestinian territory, and a deterrent against the eruption of future violence. For the Court itself, an investigation into the Israeli-Palestinian debacle could offer a chance to divest itself of its spotty early history and start anew at the nexus of international criminal law, state sovereignty and relevant world affairs. Is there more to the issue?

Testing The Waters

The Palestinian Authority, led by Chairman Mahoumad Abbas, has long wielded the threat of ICC jurisprudence as leverage in negotiations with Israel. Until the General Assembly upgraded Palestine’s status, Abbas’s warning carried little heft. A Palestinian attempt to accept ICC jurisdiction in 2009 was denied after the Office of the Prosecutor determined that, for the purposes of the Court, Palestine was not a state. A promotion at the United Nations, though, carries with it a wide range of benefits. Vested with the raiments of newfound statehood and mired in yet another round of unfruitful negotiations with Israel, Palestine marshalled plans to join some sixty international organizations this year in a bid to solidify its legitimacy as a sovereign player on the international stage. The full-court push prompted a renewed flurry of speculation on Palestinian intentions towards the ICC.

In August 2014, Palestinian representatives met with ICC prosecutors at the Hague to ponder donning the Rome Statute’s legal cloak. The lead Prosecutor, Fatou Bensouda, penned a Guardian op-ed synthesizing the ICC’s process and laying out the options for the newly minted non-member observer state. Bensouda explained that the ICC “can only investigate and prosecute actions committed on the territory or by the nationals of states that have joined the ICC statute or which have otherwise accepted the jurisdiction of the ICC through an ad-hoc declaration” pursuant to Article 12(3) of the Rome Treaty. According to Bensouda, both accession and its ad-hoc counterpart (the nucleus of Palestine’s failed 2009 jurisdictional bid) are now within Palestine’s reach. Until Palestine comes knocking, however, the Court will refrain from diving into the imbroglio that is Gaza and the West Bank.

Despite this public invitation, the prospect of ICC involvement in the Palestinian crisis presents a veritable grab-bag of slippery issues and fascinating quandaries. Two such problems are particularly difficult to unravel.  First, how should the ICC approach the question of Israeli settlements in the West Bank? Second, how should the Court address the surfeit of novel jurisdictional issues a Palestinian probe would likely encounter?

Settling Scores With The Settlements

When one applies the language of “war crimes” or “crimes against humanity” to the conflict in Palestine, it is easy to summon headline-worthy visions of bombed-out UN charter schools and sizzling rockets descending towards the concrete roofs of Tel Aviv. Lurid, technicolor atrocities such as these make it easy to overlook a problem that is arguably more pressing, a problem the ICC will likely have to address if it ever enters the long-running fray: the legality of Israeli settlements in the West Bank.

Long characterized by much of the international community as a flagrant violation of international law, the settlements at first glance seem to present a clear-cut case.

Article 8(2)(b)(viii) of the Rome Statute gives the ICC jurisdiction over war crimes involving “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.” The established interpretation of this provision, which has deep intellectual ties with Article 49(2) of the Fourth Geneva Convention, forbids Israeli settlements in occupied Palestine. Indeed, it was this very provision that earned the Rome Statute an Israeli “no” vote in 1998. If the matter is prosecuted before the Court, however, the dispute will prove anything but straightforward.

An action on the settlement question would be a case of first impression for the ICC. No country has ever been criminally charged under the transfer provisions of the Rome Statute and the Fourth Geneva Convention. To date, the Court has confined the scope of its proceedings largely to addressing past war crimes by African warlords and toppled former presidents. It has yet to consider a claim of such complexity, defined by such ingrained institutional conduct. In the course of unraveling such a claim, the Court would be forced to journey into the unknown, devoid of the benefits of precedent. The lack of substantive direction on such an issue could make the Court reluctant to tackle the matter in any meaningful way.

Since the ICC is structured as a court of last resort, an investigation into the settlements would indicate that the Israeli legal system is unwilling or unable to do so itself (see Article 17 of the Rome Statute). This reality, termed the complementarity principle, could invoke a firestorm of protest from Israel and its allies. Since the settlement issue is unique to Israel, ICC actions against those settlements would be roundly criticized for failing to account for war crimes committed by Palestinian actors such as Hamas, who might be vulnerable to indictment on other counts. An accusation of imbalance and politics masquerading as impartiality could put a hefty dent in the ICC’s already tenuous public reputation, further draining the court of the legitimacy it desperately needs to fulfill its mandate.

The  unfamiliar and highly uncertain nature of an action against Israel under Article 8(2)(b)(viii), coupled with the very real threat of political blowback, could render the Court reluctant to take up the question of Israeli settlements, even if Palestine enters the fold of member states.

Bewildering Borders

Palestinian accession to the Rome Statute is simply the opening volley in what is likely to be a nasty, contentious debate on the limits of ICC jurisdiction. The boundaries of ICC influence have always brushed against the sharply defended limits of national sovereignty, and the Court’s ability to litigate the conduct of non-member state nationals has proved a perennially controversial subject. Because Israel is not a member of the Court, the ICC must confine its reach only to conduct which “occurs on the territory of Palestine” in accordance with Article 12 of the Rome Statute. This stipulation masks a difficult question: What exactly constitutes Palestinian territory?

In a delightfully meticulous article on the topic, Northwestern Law professor Eugene Kontorovich argues that to exercise jurisdiction, the ICC would have to literally draw the borders of Palestine and Israel. Control over a defined territory is integral to the very notion of a sovereign state, yet the conundrum of delineated Palestinian borders remains as opaque as ever. As Kontorovich points out, the General Assembly’s resolution on Palestinian statehood abdicated the question entirely, treating the borders as an “outstanding issue” in search of a solution. Statehood appears to have vested Palestinians with some territory somewhere, but no one is in a hurry to clarify the details.

This baffling territorial quandary could have alarming consequences for ICC jurisdiction. With no binding guidelines to adhere to, the Court would find itself in the uncomfortable position of drawing national borders for the purposes of legal inquiry. The pitfalls are obvious. For one, the International Court of Justice’s decision in Monetary Gold means that the ICC cannot “determine the legal rights and duties” of a non-consenting state not party to a particular case. Adjudicating the reach of Palestinian territory would necessarily determine the boundaries of Israeli lands as well, a development Kontorovich succinctly terms “as clear a violation of the Monetary Gold principle as one could imagine.” Additionally, Palestinian accession to the Rome Statute implicitly relinquishes territorial and criminal jurisdiction to the Court on certain issues. It is by no means clear that Palestine has such jurisdiction to give, governed as it is by what remains of the Oslo Accords. This discrepancy becomes particularly glaring when discussing the capacity of the ICC to address the legality of Israeli settlements. All West Bank settlements lie within an area over which Israel has full territorial control and complete criminal jurisdiction. To put the issue bluntly: How can Palestine reassign jurisdiction it does not have? Assuming it attempts that very thing, how can the ICC accept jurisdiction of such questionable legitimacy?

An ICC investigation of the Palestinian situation takes the Court into dangerous waters. Such an inquiry, according to Kontorovich, “will win the enmity of all non-state parties” and ultimately render the Court “less able to fulfill its mandate.” While such a dire prediction may overstate the issue, it is certain a Palestinian signature on the Rome Statute will thrust the ICC into perplexing territory indeed.

Treading Softly

The potential role of the International Criminal Court in the conflict between Palestine and Israel is an intriguing one. Adherents to the high ideals of transnational justice weave tapestries of international accountability, cross-border dispute resolution, and deep wounds sutured by the balanced hands of impartial justice. Dogged policy realists proffer doom-laden specters of altered power balances, hamstrung sovereignty, and cataclysmic political fallout. While the actual results remain impenetrable, it is useful to remember the complexities of potential ICC involvement in one of history’s most intractable conflicts. The Court does not offer anything resembling a complete solution. To pretend otherwise is disingenuous.

Aaron Murphy is a J.D. Candidate at Berkeley Law. He is a student contributor for Travaux.

Repealing the Human Rights Act: United Kingdom leadership in European Human Rights Law

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By: Jian Yang Hoh

“This is the country that wrote the Magna Carta . . . the country that time and again has stood up for human rights . . . whether liberating Europe from fascism or leading the charge today against sexual violence in war.”

UK Prime Minister David Cameron’s recent speech at the Conservative (Tory) Party Conference 2014 was filled with allusions to the great British tradition of upholding human rights. Strangely enough, this high rhetoric was marshalled to justify repealing the Human Rights Act 1998 (HRA), a piece of domestic legislation that, among other things, makes it unlawful for any public body to act incompatibly with the European Convention on Human Rights (ECHR), an international human rights treaty that has been signed and ratified by the United Kingdom. Should the Conservatives retake power in the upcoming election, Cameron envisions a new British Bill of Rights that will return sovereignty to the United Kingdom, allowing British judges to make judgments for British people. Yet the recent strategy paper released by Justice Minister Chris Grayling suggests that the text of this new Bill of Rights will be identical to that of the ECHR. Any clear explanation for this behaviour must be by reference to the wider debate on the United Kingdom’s sovereignty concerns, and the political context that surrounds it. This post will first explain the way the European Court of Human Rights (ECtHR) works with regard to the United Kingdom, and detail the reasons for their strained relationship. It will then describe how Conservative plans for human rights reform are significantly motivated by politics, and argue that those plans would have deleterious domestic and international consequences.

Background: Politics, Sovereignty, and Euroangst

The United Kingdom has been subject to the jurisdiction of the European Court of Human Rights (ECtHR) since 1951. Membership is compulsory for all members of the Council of Europe, an advisory international organization promoting co-operation on law, culture, and development in the region. The ECtHR, based in Strasbourg, hears complaints from any individual who feels that his or her rights as enumerated in the ECHR have been violated by a Member State, and all judgments are binding on the States concerned. In 1998, the UK Parliament signed into legislation the HRA, which allows human rights cases to be decided in British courts in accordance with the ECHR, and requires judges to take into account ECtHR jurisprudence as persuasive authority. Ultimately, however, an individual who has had his case tried in the UK courts may still appeal to the Strasbourg Court for a final, binding decision.

Recent judgments of the Strasbourg Court have clashed with the Conservative government’s policies on crime and national security. In Hirst v. United Kingdom (No 2), the ECtHR ruled that the United Kingdom’s blanket ban on prisoner voting was incompatible with the ECHR, arguing that the government had failed to provide specific and convincing reasons to depart from the principle of universal suffrage. Similarly, the ECtHR’s refusal to allow the UK government to deport alleged Al-Qaeda affiliate Abu Qatada in Othman (Abu Qatada) v. United Kingdom on grounds that he would face torture back in Jordan was not met with felicity by the Conservatives. Qatada was eventually deported (and acquitted in Jordanian courts) after the United Kingdom signed a treaty with Jordan obtaining explicit assurances that he would not face torture, but not before prominent Conservative politicians and newspapers emphasized the high cost to the British taxpayer of keeping the alleged terrorist in the country, inflaming public outrage.

This conflict is exacerbated by the Strasbourg Court’s history of making high-profile reversals of decisions by British judges. In Smith & Grady v. United Kingdom, the ECtHR overturned judgments by British courts that held that the executive branch of government had not acted illegally in investigating and discharging members of the Navy on grounds of their homosexuality, sparking a sea change in policy on sexual orientation in the armed forces. More recently, in Al-Skeini v. United Kingdom, the ECtHR disagreed with the adjudication of the UK Supreme Court on the extraterritorial application of ECHR rights, and held that British soldiers have human rights obligations even while fighting in Iraq. This decision was highly unpopular in the United Kingdom, and has been held up by Cameron as an example of unacceptable interference by the ECtHR.

Much of this hue and cry is highly political. The Conservatives’ need to distance themselves from anything European has been made all the more urgent by the meteoric rise of the United Kingdom Independence Party (UKIP), a right-wing populist party whose charismatic leader, Nigel Farage, has run on a platform of strong Euroscepticism with great success. Although UKIP did not succeed in carrying any of its party members into Parliament in the last election, recent polls have them at around a stable 15-18%, gaining on the Tories’ low 30s, and nearly twice the percentage of the Liberal Democrats, who currently share power in a coalition government with the Conservatives. Cameron is not just faced with the prospect of losing right-wing vote share to Farage—a string of recent Tory defections to UKIP indicates that he is in danger of losing party members as well. If the Conservatives appear weak on crime, national security, or sovereignty, support will likely flow to the more hard-line UKIP.

Ill-advised Proposals and Consequences

The problem with promoting the repeal of the HRA as a headline act of an incoming Conservative government is that the Tories will have to go much farther to achieve any meaningful reform. Removing the HRA will fail to solve the problem of the ECtHR’s ultimate jurisdiction over the United Kingdom, only prevent Convention rights from being directly enforceable in domestic UK law, and result in more costly and protracted referrals (on average costing £30,000 [≈47600 USD] and taking an average of 5 years) to the Strasbourg Court. To effect real change, the United Kingdom will have to sever from the ECtHR completely. This would be a drastic step. It would remove the United Kingdom from the Council of Europe, which would place it in lonely company with Belarus and Kazakhstan as the third European state not party to the organization. This would worsen the United Kingdom’s already fractious relationship with the European Union (EU), not least because a treaty approving the accession of the EU itself to the ECHR is currently under discussion. Cameron has maintained that staying in the EU under some renegotiation would be best for the United Kingdom. Rejecting the jurisdiction of the ECtHR will further underscore the United Kingdom’s alienation from the rest of the EU, and add to the growing list of factors that may ultimately lead to a British exit.

Much criticism of the Strasbourg Court centres on the fact that its unelected judges may decide matters of contentious policy, and is therefore undemocratic. Yet deference to the particular socio-political context of each Member State is at the core of the ECtHR’s jurisprudence—the  margin of appreciation, a concept applied uniformly across all cases relevant to the ECHR, makes substantial provision for each member state to interpret the text of the Convention differently. In A, B, and C v Ireland, the European Court declined to rule on the legality of Ireland’s anti-abortion laws, holding that there was insufficient consensus on the matter within Europe to be justiciable. Further, democracy does not always work well with fundamental rights, as exemplified by reference to the parliamentary record of the House of Commons debate on prisoner voting: less than one page was devoted to substantive discussion of the issue at hand, and over thirty were focused on frustration with regard to Strasbourg competence creep. When the persons whose rights are under threat are unpopular, and when legislative bodies are infected with politicking, it falls to principled forums like the ECtHR to act as the ultimate watchdog.

Britain has a long and storied history of leadership in the area of fundamental rights. It is precisely that reputation that would make severance from the ECtHR such a disastrous move; if the United Kingdom will not comply with the ECHR, how could Russia or Turkey be compelled to do so? Europe is at a pivotal moment in its history of collective human rights enforcement—if the Conservatives take power again, one wrong step could mark the beginning of the United Kingdom as a leader in all of the wrong ways.

Jian Yang Hoh is a L.L.M. Candidate at Berkeley Law. He is a student contributor for Travaux.