European Journal of International Law

Preliminary Reflections on the ICJ Decision in the Dispute between Chile and Bolivia Over the Status and Use of the Waters of the Silala

Chile and Bolivia, for the past six years, have engaged in a dispute before the International Court of Justice over the waters of the Silala. On 01 December 2022 the Court released its decision. This summary highlights some key facts and the outcome of the case, and raises a number of preliminary questions that the case presents about general international law and the law of international watercourses.

Background

The Silala waters originate in Bolivia near its border with Chile, at an altitude of 4000 metres. This is one of the driest parts of the planet and home to unique mountain wetlands known as bofedales. In 1928, the Silala was heavily canalized on the Bolivian side of the border. According to Chile, this was done to address water quality concerns. Bolivia argued that the purpose was to enhance the quantity of Silala water flowing downstream.

At the heart of the dispute is the “nature” and the “use” of the Silala. In a nutshell, Chile wanted the Court to “declare” the Silala an international watercourse entirely governed by customary international law, that its “use” was lawful according to international law, and that Bolivia’s recent proposals and efforts to use the Silala were unlawful. Bolivia presented counterclaims asking the Court to declare that it had sovereignty over both the infrastructure located in its territory and the enhanced portion of the surface flows, which benefitted Chile. Bolivia also sought a ruling that any future deliveries of enhanced flows to Chile had to be subject to an agreement.

Outcome

Chile had always considered the Silala as an international watercourse. Bolivia started the proceedings considering the Silala to be domestic springs from which water was diverted downstream into Chile by means of the artificial infrastructure. Scientific studies commissioned by Bolivia during the judicial process revealed that the waters of the Silala would have flowed on the surface into Chile even without canalization. Thus, the positions of the two sides eventually converged. The only disagreement was on the effect of the infrastructure on the Silala’s surface flows with Chile maintaining that it was minimal (1 to 3%) and Bolivia considering that it was more significant (11 to 33%). Hence, Bolivia maintained that the Silala was an international watercourse with unique characteristics due to the extensive canalization infrastructure that enhanced the Silala’s surface flows. Bolivia, however, agreed in the oral proceedings that the Silala was subject to customary international law.

In deciding Chile’s first claim, the Court acknowledged that the parties had reached an agreement over the nature of the Silala as an international watercourse and that both agreed that customary international law applied to all of its waters. As a result, the Court concluded that the claim no longer had any object and that it did not have to issue a decision (§59).

The Court reached the same conclusion on Chile’s second (§65), third (§76) and fourth (§ 86) claims. In the second claim, it emphasized that both Parties agreed that the principle of equitable and reasonable utilisation applied to all the waters of the Silala, and that both parties were entitled to such utilisation. In the third claim, the Court highlighted statements made by both sides that Chile was entitled to its current use of Silala water as a function of its right to equitable and reasonable utilisation, and that such use was without prejudice to any future equitable and reasonable use that Bolivia might make, including related to the dismantling of the canals and restoration of the wetlands. With regard to Chile’s fourth claim—related to the threshold of harm that States must avoid when using the waters of an international watercourse in a way that causes pollution—the Court concluded that because Chile clarified its position during the proceedings that the actionable level was “significant” harm, as Bolivia had consistently argued, there was no disagreement between the Parties. In each of these claims, the Court acknowledged the agreement, ruled that it was devoid of any object, and declined to issue a decision.

Where the Court identified a disagreement in law and facts was in relation to Chile’s last claim. Here, Chile asserted that Bolivia had breached several procedural provisions of international law, namely the obligation to notify and consult with respect to measures that may have an adverse effect on other watercourse States. Since neither State is a party to the 1997 United Nations Watercourses Convention (UNWC) (§54), the Court decided the case on the basis of customary international law. However, Chile argued that Articles 11 and 12 of the UNWC reflected customary international law related to notification and consultation obligations. The Court rejected Chile’s assertion related to Article 11, clarifying for the first time in its case law that there was no state practice to justify such a conclusion (§111). It also acknowledged that while the Parties and the Court agreed that Article 12 reflected customary international law Chile and Bolivia had divergent views on the threshold that triggers a violation. According to Chile, “significant adverse effect” was the relevant threshold when considering application of the obligation to notify and consult on planned measures, as well as when the results of an environmental impact assessment must be shared. In contrast, Bolivia argued that the obligations only arise where there was a risk of significant transboundary harm. Relying on its jurisprudence in the cases of Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and the Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), the Court sided with Bolivia. While it acknowledged that the Commentaries to the Draft Articles on the Law of Non Navigational Uses of International Watercourses prepared by the UN International Law Commission did refer to the lower threshold, it concluded that Article 12 of the UNWC “does not reflect a rule of customary international law relating to international watercourses that is more rigorous than the general obligation to notify and consult contained in its own jurisprudence” (§117). The Court then reviewed the facts in the case and concluded that Chile had failed to allege or demonstrate any harm resulting from Bolivia’s planned measures on the Silala (§127). As a result, it unanimously rejected Chile’s claim (§128).

Bolivia’s three counterclaims received a similar fate as had Chile’s claims. The Court ruled that the Parties had reached an agreement during the proceeding on the first two, rendering them without object and negating the need for a decision; it also rejected Bolivia’s third claim.

Bolivia’s first counterclaim requested a declaration recognizing its sovereignty over the infrastructure and Bolivia’s right to remove it. In its second counterclaim, a corollary of the first, Bolivia requested a declaration of its sovereignty over the enhanced flow generated by the infrastructure. Since Chile had fully accepted Bolivia’s first counterclaim in its pleadings and during oral argument, the Court concluded that it was without object and required no decision (§147). Similarly, the Court considered that the Parties had reached a consensus on the second counterclaim as it related to Bolivia’s right to dismantle the canals and diminish the flow of the surface water downstream into Chile (§155). Thus, it also declined to rule on this point. As to Bolivia’s final counterclaim—asking the Court to declare that any need by Chile to have Bolivia maintain the infrastructure and enhanced flows would be subject to an agreement— the Court rejected it on grounds that it presented a hypothetical future scenario (§162).

Questions

The Silala case raises unique questions both for general international law and international water law. For the former, a key question relates to the consequence of new evidence and the Parties’ evolving positions during the proceedings that bring them closer to an agreement on the substance of a claim. In such cases, should the Court issue a declaratory judgement or, as occurred in the Silala case, is it free to declare a claim void of object that requires no decision? In this regard, see the Declaration of Judge Charlesworth and the Separate opinion of Judge ad hoc Simma. Another question pertains to the use of experts by the Parties, the Court’s request for cross-examination of the experts during the hearing, and the lack of nearly any reference to the science or experts in the decision.

From an international water law perspective, the Silala case appears to provide some clarification on the procedural obligation to notify and consult under customary international law. Question will surely be asked as to whether it has done so in a progressive or regressive manner. However, less clarity emerges from the decision on the extent to which riparians must cooperate to fulfil their obligations to notify and consult, on the nature of an international watercourse, and on the need to take into account the “uniqueness” of such a watercourse in the context of applying the principle of equitable and reasonable use.

While the Silala decision is distinct in being one of the few ICJ pronouncements on a dispute involving an international watercourse, it is still too early to comprehend is full value. In addition to the above, other questions will likely arise from the case for both general international law and international water law. For now, we hope these are enough to begin the discussion.

Francesco Sindico, Laura Movilla and Gabriel Eckstein all served as Counsel for the Plurinational State of Bolivia in the ICJ Silala case. None of what is written here should be attributed in any way to the Plurinational State of Bolivia, and only represents the positions and opinions of the three authors in their personal capacities.

The MH17 Judgment: An Interesting Take on the Nature of the Armed Conflict in Eastern Ukraine

On 17 November 2022, some eight years after Malaysia Airlines Flight 17 (‘MH17’) was shot down in eastern Ukraine, the Hague District Court delivered a verdict against the four accused in the MH17 Trial: Igor Girkin, Sergey Dubinskiy, Leonid Kharchenko and Oleg Pulatov. The first three were found guilty of the charged crimes – viz., murder of 298 people (Article 289 of the Dutch Criminal Code, DCC) and intentionally causing the crash of an airplane (Article 168 DCC) – as (indirect) co-perpetrators. Each of them received a life sentence. The fourth accused, Pulatov, was acquitted of all charges as the judges held that there was “no evidence that Pulatov actually made any contribution to the deployment of the Buk-TELAR” missile system that was used to shoot down MH17. (own translation, the judgment is currently only available in Dutch, see MH17 Judgment, Section 6.3.5.3.) Although it is at present unlikely that Russia, where the three convicted persons are believed to be, would cooperate with the enforcement of the said sentences, the value of this verdict for all the victims and their relatives, for the Dutch state and for the international community is undeniable. (see here and here)

From a scholarly perspective, the MH17 Judgment offers valuable judicial analysis on various legal questions that will likely engage academic discussions in the months ahead. This contribution focuses on one particular legal issue to which the judges dedicated a very sizeable section of the judgment: the question whether the Dutch Prosecutor has a right to prosecute this case (‘ontvankelijkheid van de officier van justitie’), as required by Article 348 of the Criminal Procedure Code. The analysis that the Court provided on this matter contains some interesting findings. In particular, the Court’s conclusion is examined here that the downing of MH17 on 17 July 2014 took pace in the context of an international armed conflict between Ukraine and Russia, but that the armed forces which Russia used to wage that conflict – i.e., the separatist forces of the so-called Donetsk People’s Republic (‘DPR’) – were not entitled to combatant’s privilege (and immunity) under international humanitarian law (‘IHL’).

The Dutch Prosecutor’s right to institute criminal proceedings: establishing jurisdiction

The Court explained that in order to determine whether the Dutch prosecutor had a right to start criminal proceedings against the accused in the MH17 Trial, three questions must be answered: (i) whether the Dutch Criminal Code establishes jurisdiction over the conduct in question; (ii) whether international law provides any limitations, such as immunities, to prosecution; and (iii) whether serious procedural defects in the investigation and prosecution can be identified which could extinguish the Prosecutor’s right to prosecute this case. For brevity reasons, the Court’s analysis of how the last criterion applies in this case is not examined here.

With regard to the jurisdictional question, the Prosecutor had originally submitted that passive personality jurisdiction under Article 5 DCC extends both to the charge of intentionally causing an airplane to crash and to the charge of murder, because most of the victims who died in this incident (196 of the 298 persons on board of flight MH17) were Dutch nationals. I have previously analyzed this argument elsewhere (here, at 168-171) and submitted that the principle of passive personality jurisdiction cannot be extended to the killing of the non-Dutch nationals on flight MH17 just because their deaths occurred in the same factual circumstances that led to the deaths of the Dutch passengers. The MH17 judges also adopted this view. They concluded that passive personality jurisdiction applies to the crime of intentionally causing an airplane to crash because – even though MH17 flied under the Malaysian flag and was shot down by non-Dutch nationals on non-Dutch territory – Dutch nationals were among the victims of that crime. However, the judges found that the same logic does not apply mutatis mutandis for the murder (manslaughter) charges which they treated as effectively constituting 298 separate and distinct charges. They thus rightly concluded that charges concerning the killing of non-Dutch nationals do not fall within the scope of passive personality jurisdiction under Article 5 DCC. Instead, the Court held that jurisdiction over those charges can be established based on Article 8b DCC, which: (i) provides for delegated (transferred) jurisdiction, and (ii) applies in this case by virtue of a bilateral agreement that Ukraine and the Netherlands concluded to this effect back in July 2017. (MH17 Judgment, Section 4.4.2.) Naturally, passive personality jurisdiction then applies for the charges of murder vis-à-vis the Dutch nationals on board of flight MH17.

The Court’s findings on this point, and specifically on the scope of passive personality jurisdiction, should be welcomed: not only as valuable evidence of state practice that is in line with the approach taken by other states (see here, at 170) but also as a sensible limitation to the unbridled expansion of the titles of extraterritorial jurisdiction.

The question of ‘combatant’s immunities’: nature of the conflict in eastern Ukraine anno 2014

The Court’s analysis on the second criterion for determining whether the Prosecutor had a right to initiate criminal proceedings against the MH17 accused – i.e., whether international law bars such a prosecution – would be of particular interest to international humanitarian law experts. 

From the outset, the judges recognized that since the factual circumstances in this case occurred in the context of an armed conflict, there is one specific type of immunity under IHL that has to be addressed here: i.e., ‘combatant’s immunity’. (MH17 Judgment, Section 4.4.3.1) The Court recognized that lawful combatants have a right under IHL to use lethal force against valid military targets and that, as a corollary to that right, they must be afforded immunity from criminal prosecutions for such acts (even if those acts constitute crimes under the national laws of a state). The judges noted that none of the accused claimed such immunity, and that Pulatov in fact expressly refused to invoke this notion, but observed that if established it would lead to the conclusion that the Prosecutor has no right to prosecute this case under Article 348 CPC.

It is hardly surprising that the accused did not seek to invoke ‘combatant’s immunity’ in this case. As is well-known, this concept applies only in international armed conflicts. (see, e.g. Melzer, at 33, fn.52; Haque; for an argument that such immunity ought to be extended to NIACs, see Ohlin) This means that the accused would have had to argue that the DPR’s armed forces they commanded were de facto Russian proxy forces, engaged in an IAC against Ukraine at the time flight MH17 was shot down: a position that the Russian Federation has persistently denied.

Despite the lack of submissions by the Defence on this point, Article 348 CPC required the Court to enter a finding on this question of immunity. Thus, the judges first went to examine the nature of the conflict in eastern Ukraine back in July 2014, at the time MH17 was downed. Using the ‘overall control’-test from the ICTY Tadić Appeal Judgment, they sought to establish whether the prima facie NIAC between the Ukrainian government forces and the DPR’s armed forces had been internationalized by 17 July 2014: i.e., whether the Russian Federation played a role in: (i) ‘financing, training and equipping, or providing operational support to’ the DPR; and (ii) ‘organizing, coordinating or planning the military actions of’ the DPR in that conflict. (MH17 Judgment, Section 4.4.3.1.3) Wiretapped conversations between the DPR’s leadership and talks they had with senior members of Russia’s Presidential administration (including, for instance, Vladislav Surkov), were used by the judges to conclude that during the indicted period “multiple leaders of the DPR held close connections with the Russian intelligence services, the Presidential administration and advisors of the Kremlin”. (Ibid., own translation) Such contacts were used to request and obtain from the Russian Federation convoys of military weapons, as well as of manpower, salaries and other forms of financing that went through the city of Rostov. Next to these forms of material and operational support, the Court also found that there was an “abundance of evidence” that the Russian Federation coordinated the DPR’s military activities and in fact gave direct instructions to its leadership. (Ibid.) A wiretapped conversation that took place on 21 July 2014 between Alexander Borodai (then DPR’s Prime Minister) and a Russian number was cited, for instance, in which Borodai asked to speak with ‘the boss’ since he needed instructions on handling the aftermath of the MH17 disaster.

Relying on more such evidence, the judges reached the conclusion that “from mid-May 2014 until at least the shooting down of flight MH17, the Russian Federation exercised overall control over the DPR. In this way, the geographically non-international armed conflict became internationalized and is, thus, an international armed conflict.” (Ibid) This is a significant legal finding: to the best of my knowledge, it presents the first judicial determination that the nature of the armed conflict between Ukraine and the DPR’s armed forces is international, and indeed has been such since mid-May 2014. The ICC Office of the Prosecutor has previously indicated in its preliminary examination reports that it also possessed evidence of the Russian Federation exercising overall control over the DRP forces (see here, para 73 and here, paras 280-281), but most commentators have viewed that armed conflict as a NIAC (see here and here) because it was thought that there was insufficient evidence to satisfy the second limb of the Tadić ‘overall control’ test. The MH17 Judgment admittedly does not offer a most extensive analysis on this point – the section containing the judges’ deliberations on the extent to which Russia directed the military activities of DPR is just a page long – but it does discuss some potent evidence of DPR leaders reporting to and receiving instructions from Moscow in their conduct of military activities.

The question of ‘combatant’s immunities’: the status of the DPR forces

Having found that the DPR’s armed forces were engaged (as a Russian proxy) in an IAC against Ukraine, the judges thus arrived at the burning question of whether the accused, as leaders of the DPR forces, were ‘combatants’ under IHL, enjoying the privileges and immunities attached to that status. (MH17 Judgment, Section 4.4.3.1.4) Here, the Court correctly referred to Article 43 of Additional Protocol I of the Geneva Conventions to explain the two requirements that an armed group must satisfy in order for its members to be considered lawful combatants, namely that the said group is: (i) ‘under a command responsible to that Party’ to an IAC, and (ii) ‘subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict’. (Article 43 of AP I)

The Court’ application of that legal framework to the case facts would likely raise some debates amongst IHL experts. In particular, the judges held that:

the DPR was not part of the official armed forces of the Russian Federation but – as established above – acted under the overall control of the Russian Federation. However, that finding of overall control is in itself insufficient to conclude that the DPR functioned under a command responsible to the Russian Federation. For that, the Russian Federation must also accept the DPR as belonging to it and take responsibility for the behavior and actions of the combatants (under the command) of the DPR. (MH17 Judgment, Section 4.4.3.1.4, own translation)

Put simply, the Court found that condition (i) of Article 43 AP I was not satisfied because the Russian Federation (and also the accused) have continuously and to present day denied that the DPR functioned under a command responsible to Russia. On this basis, the judges held that the DPR’s forces, and the four accused in particular, did not enjoy the status of lawful combatants during the indicted period and cannot, thus, invoke combatant’s immunity.

The Court’s reasoning on this point adopts a view which the Prosecution has maintained in this case (see here) and which I have already criticized elsewhere (here, at 178-180). In short, while the commentaries to the Geneva Conventions do indeed state that a Party (i.e. Russia) to a conflict must “accept both the fighting role of the group and the fact that the fighting is done on its behalf” (see here, para 1005), they also expressly recognize that this acceptance does not have to be formal and express. Indeed, such acceptance can also be demonstrated by evidence that the Party to an IAC ‘controls’ the said armed group. (see here, para 1008 and here, at 23) Authors studying the DPR’s forces legal status as combatants who may be entitled to prisoner-of-war status and combatant’s immunity have, thus, standardly focused on examining the level of control that the Russian Federation must exercise over those forces, not on whether Russia formally accepted them as its de facto agents in Ukraine. (Reeves and Wallace, at 399-400) As a more general observation, the Court’s findings on the conflict in eastern Ukraine in mid-2014 construct an asymmetric situation where two states were engaged in an IAC in that region, yet only the forces of one of those states were privileged combatants. As a result, if e.g. a Ukrainian soldier was captured by the DPR’s forces, they will be obliged to treat him as a prisoner of war and afford him all the rights and protections enshrined in Geneva Convention III. Failing to do so would result in inter alia state responsibility for Russia, as the controlling state. By contrast, if a DPR soldier is caught by the Ukrainian army, he could be prosecuted as a common criminal, even for the very use of lethal force against Ukrainian soldiers. This does not seem like a very tenable outcome.

The ‘immunity’-challenge could have more convincingly dealt with by focusing on the point that combatant’s immunity only extends to lawful acts of hostility, which the shooting down of a civilian aircraft is certainly not. The problem is, however, that the judges would have been pushed to engage in complicated factual analyses about the extent to which the downing of MH17 was an accident caused by the perpetrators’ genuine belief that they were shooting at a Ukrainian military aircraft (which they would have had the right to do, had they been lawful combatants under IHL). The decision to altogether reject combatant status for the DPR, based on Russia’s denials that this group is fighting on its behalf is, in this respect, a pragmatic way out of this conundrum. It subsequently allowed the judges to find in the section discussing the criminal responsibility of the four accused that it is legally irrelevant that the direct perpetrators of the missile attack on MH17 – i.e. a DPR unit stationed nearby the town of Pervomaiskyi and under the direct command of Kharchenko (who was in turn subordinate to Dubinskiy) – thought that they were shooting at a Ukrainian aircraft. (MH17 Judgment, Section 6.3.5.3) As the Court explained:

where in the execution of a crime a wrong target is accidentally hit, the physical perpetrator of the crime is still held responsible for that crime. The reasoning here is that for the crime of murder intent to kill another person with premeditation is required, whereby if it turns out afterwards that not the intended person, but another person was killed, the offense description is still met, namely that a person was intentionally killed. In the court’s opinion, this also applies to the intentional and unlawful crashing of an aircraft. If afterwards it turns out that a different type of aircraft was shot down than the intended type of aircraft, the offense description is still met. The premise here is that, in the absence of combatant privilege, it is, of course, as punishable to kill a soldier as it is to kill a civilian, and it is as punishable to shoot down a military aircraft as it is to shoot down a civilian aircraft. If the intention was to shoot down a plane that could not have been shot down, and a plane was indeed shot down that could not have been shot down, then at the very least the substantial likelihood of killing people who should not have been killed either has been accepted. Legally, there is no difference between the two planes, nor the status of the occupants. Therefore, the mistake does not negate either intent or premeditation. (Ibid., own translation and emphasis).

This line of reasoning is, of course, perfectly sound but also entirely conditional on the initial finding that the DPR fighters which shot down flight MH17 were not lawful combatants. This is not to say that I believe a different outcome would have necessarily transpired in this case if combatant’s privilege was recognized for the DPR armed forces. As the judges point out in the said “mistake scenario” section, the deployment of a Buk-TELAR system in an area with high civilian air traffic and without an additional system (e.g., a Target Acquisition Radar) to verify additionally the nature of targets, indicates that risks were taken that day. (Ibid.) Whether these risks were known to the crew operating the Buk-TELAR system, however, or they were instead negligent and genuinely believed they were shooting at a Ukrainian aircraft, and to what extent their hostile actions were, thus, not covered by ‘combatant’s privilege/immunity’, are questions that would have required a different kind of analysis. 

Conclusion

The Dutch Prosecution recently announced that it would not appeal the Hague District Court’s verdict. None of the three convicted persons have reacted and filed an appeal either. We have, thus, likely seen the last chapter of the MH17 Trial: a case that attracted a lot of attention, both in the Netherlands and globally, and that took place at an intersection of Dutch and international law. The present contribution has zoomed in on just one aspect of this case, namely the manner in which the Court addressed the possible application of IHL in this trial, offering some critical reflections on the reasoning that the judges’ adopted to define the DPR armed forces in eastern Ukraine as unlawful belligerents participating in an IAC. It does credit to the Dutch judges that, in the absence of submissions by any of the four accused on the issue of combatant’s immunity, they went on to examine in such great detail the extent to which this notion could bar the Dutch prosecution from exercising its right to prosecute this case. That section of the MH17 Judgment provides a very stimulating analysis on the nature of the conflict in eastern Ukraine, in general, and on the conditions for lawful belligerence, in particular. Although the somewhat formalistic manner in which the Court rejected a combatant’s status for the DPR’s forces – i.e., by invoking Russia’s formal denials that the DPR functioned under a command responsible it – can indeed be subject to some criticism, this does not detract from the fairness of the verdict and the justice it does to the victims of the MH17 disaster.

Image: Dietmar RabichDülmen, Wildpark — 2017 — 6075-81CC BY-SA 4.0

J.I. v. Croatia: Violence against Roma women – discrimination not an issue?

J.I. v. Croatia (8.09.2022) is the first European Court of Human Rights case arising from domestic violence against a Roma woman and the second related to sexual violence against a Roma girl. Police were neglectful. The intervener exposed systemic police normalisation, and disregard of, Roma intra-community violence against women. 

A procedural violation of Article 3 ECHR was found: repeat victimisation through death threats by a rapist father was not investigated. Recognising J.I.’s ‘particular vulnerability as a Roma woman and a victim of serious sexual offences’, the Court acknowledged that leaving her to fear further assaults was inhuman treatment.

Yet, the Court undermined its intersectional vulnerability recognition by disclaiming discrimination as an issue. It declined to examine whether the victim was neglected based on ethnicity. In a summary fashion characteristic of its covert discrimination jurisprudence, the Court disallowed any issue under Article 14 ECHR without sufficient reasoning. While the judgment is commendable in important respects, it is nevertheless symptomatic of a general fault – discretionary gate-keeping of Article 14, marginalising equality issues.

Facts

J.I. survived multiple rapes by her father. He was imprisoned. Extremely traumatised, suicidal and self-harming, J.I. changed her name, appearance, and domicile.

While on leave, her abuser threatened to kill her, through relatives. J.I. repeatedly asked for police protection. None was provided; no investigation ensued. Officers were dismissive. J.I. reported police misconduct. They persisted not investigating the threats, breaching domestic law.

Third party

ERRC submitted that Roma girls/ women are disproportionately targeted for violence against women, while police and other institutions normalise their abuse as inherent to their communities, failing to protect them. Evidence of such police bias is rare. “[B]ecause stereotypes meant that gender-based violence against Roma girls and women was largely ignored, comprehensive data about police failures to protect them would be even harder to produce’. A hypothetical comparator is needed: police withhold the response they would give non-Roma victims. (§74-9)

Judgment

The Court acknowledged J.I. as ‘a highly traumatised young woman of Roma origin […] the victim of appalling sexual abuse by a close family member at a very early age’. (§86) The death threats were psychological violence. Despite not being direct, they caused a vulnerable victim intense fear. (§88) Considering her excessive trauma and feelings of powerlessness facing repeat victimisation, her treatment was inhuman under Article 3. (§89)

A form of domestic violence, the threats triggered investigation duties. (§91) Instead of discharging those, existing also under domestic law, police maintained they could do nothing unless the abuser confronted J.I. (§92) No comprehensive analysis, required in domestic violence cases, was attempted. (§99) No prosecutor was informed, no investigation opened, despite J.I. reporting threats thrice. (§95-6, 100)

The Court did not rule on the failure to protect J.I. from repeat victimisation: there was ‘no need’ to. (§101)

Regarding discrimination, ‘neither the circumstances as submitted, nor any relevant evidence such as statistical data, substantiate the allegation’. (§97) Despite J.I.’s ‘particular vulnerability on account of her sex, ethnic origin and past traumas’ and the police’s ‘failure to perceive the seriousness of [her] allegations’ being ‘in blatant disregard’ of domestic law, there was ‘no separate issue under Article 14’. (§108)

EUR 12,000 was awarded for non-pecuniary damages.

Dissents

Judge Wojtyczek contested the violation: the authorities’ assessment of J.I.’s allegations as ‘[in]sufficiently substantiated’ was possibly correct.

Judge Derenčinović considered a ruling on the protection failure necessary. Duties to prevent domestic violence applied particularly to repeat victimisation. ‘[N]ot a single measure of victim protection was taken’, severely impacting J.I. and possibly encouraging domestic violence. The authorities knew J.I. faced a real and immediate risk, and did not manage it as required: no risk assessment, no proactivity, no inter-agency cooperation. Personnel were dismissive, ignoring the perpetrator’s serious-offender profile and the victim’s vulnerability.

Comment

The judgment is respectable – victim-responsive, gender-sensitive to repeat victimisation, recognising the threats amounted to violence despite being mediated. Few other judgments qualify DV as inhuman treatment: Volodina v. Russia (§75), Eremia v. Moldova (§54), Mudric v. Moldova (§45). In all those, victims were caused to fear repeat victimisation. The Court is mindful of such intimidation’s impact on DV victims. There may be no other violence against women judgments (outside detention contexts) specifying treatment was inhuman. J.I. is victim-centered, validating J.I.’s experience, articulating the distress and defencelessness inflicted. Significant compensation is awarded.

The Court reiterates its strong stance on DV, stipulating authorities must comprehensively investigate such threats, heeding the history of abuse. It acknowledges J.I.’s heightened vulnerability as intersectional, ethnicity as central as gender and severe early-age victimisation.

Yet, it limits vulnerability implications to investigation duties, withholding an Article 3 substantive breach discussion. J.I.’s exposure to non-protection warranted that, as Judge Derenčinović argued. The Court should have scrutinised the authorities’ failure to: consider whether to grant the perpetrator leave in the same (part of) town where J.I. lived; inform her of his leave; caution him to abstain from (indirectly) contacting her; instruct police to be responsive should J.I. report concerns; appoint gender-sensitivity trained officers as her contact; warn the perpetrator after his first threats; inform J.I. of that and of her victim rights.

Importantly, instead of being perceptive of J.I.’s vulnerable identities as a likely inequality factor, the Court dispatches her discrimination allegations. It discounts any Article 14 issue merely because the alleged inequality is covert, absent a racist utterance (‘neither the circumstances as submitted […] substantiate the allegation’) and statistics on police neglect of such victims.

Yet, covert discrimination is as real as, and more common than, overt discrimination. Open bias should not be required to apply Article 14. Statistics are not required to find discrimination (ex., Oršuš and Others v. Croatia, §75). The intervener documented a context of police neglect of victims like J.I. and a dearth of proof. Such findings by an established organisation amount to qualitative equality data. Such data, together with the case fitting the inequality pattern, the victim’s vulnerability, the police omission’s blatant unlawfulness (Court-recognised), and the lacking explanation for it suffice for Article 14 application, if not for a prima facie case.

In this context, the hypothetical comparator the intervener suggested would strengthen an inference of discrimination: an average (non-Roma) victim would not be treated as poorly. A ‘would-be-treated’ comparator is an established direct discrimination instrument (ex., Article 2.2.a, Directive 2000/43). (It has been integral to UK equality legislation since the 1970s.) The Court has never referenced it.

A hypothetical comparator does not require evidence pertaining to a particular individual but instead relies on legitimate generalisations/ assumptions, such as, for example, that police would not normally withhold the response to criminal threats they are legally required to have. 

It is rational to expect the State to refute thusly inferred discrimination by showing a race-neutral reason for the failure, rather than expecting the victim to prove bias:

“[B]ecause people rarely advertise their prejudices and may not even be aware of them, discrimination has normally to be proved by inference rather than direct evidence. Once treatment less favourable than that of a comparable person […] is shown, the court will look to the alleged discriminator for an explanation. The explanation must […] be unrelated to the race or sex […]. If there is no, or no satisfactory explanation, it is legitimate to infer that the less favourable treatment was on racial grounds.” (House of Lords – Regina v. Immigration Officer at Prague Airport, 2004)

In discrimination law, it is standard to use inferences as affirmative proof rather than expect direct evidence:

“Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances. […] Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination.” (House of Lords – Swiggs and Others v. Nagarajan, 1999)

In leading jurisdictions, it has been settled jurisprudence for decades that different treatment (including compared to how another would be treated) and racial difference indicate possible racial discrimination. In such circumstances, adjudicators expect the respondent to convincingly explain. Unless they do, discrimination is legitimately inferred, as a matter of “almost common sense”. (May L.J. in North West Thames Regional Health Authority v Noone: CA 1988) Such a conclusion should be reached “on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination.” (Neill L.J. in King v. Great Britain-China Centre [1991] I.R.L.R. 518, cited by House of Lords – Strathclyde Regional Council v. Zafar, 1997)

(While some of these judgments pertain to employment, the principles are equally valid for service provision and many other areas under EU law. There is no reason not to apply them to all non-criminal cases.)  

The Court has yet to adopt these standards. It routinely recalls it is hard for States to prove racial motives in crime (ex., M. and Others v. Italy and Bulgaria, §176), but has not recognised it is harder for victims, for non-criminal acts too. In J.I., the Court does not mention the shifting burden of proof, which should invariably apply in discrimination cases. It ignores the intervener’s hypothetical-comparator suggestion and the systemic issue – authorities tending to disregard violence against women amongst Roma.

The Court overlooks its jurisprudence as a source on this general issue. In M. and Others (cited), the respondents defended their omission to investigate alleged rapes of a Roma girl within a Roma family, referencing a ‘specific’ ‘context of a Roma marriage’ involving payment for the bride in exchange for ‘consummation’. (§§92-3, 123, 135, 137) The Court explicitly discarded this ‘Roma custom’ justification, finding an Article 3 procedural violation. (§105-7) In J.I., it drew no conclusions from that illustration of official tendencies to normalise rather than investigate intracommunity Roma girls’ abuse attributed to Roma culture.  

Contemporary discrimination law expects to lack direct evidence, validating a claimant’s inability to adduce it rather than using that against her. Inferences, shifting the burden of proof, hypothetical comparators and other tools apply by default to offset this objective evidentiary shortage. The use of those tools should be standard practice under Article 14. The absence of direct proof should not prevent Article 14 application.   

In M. and Others (cited), the Court took an analogical approach, mutatis mutandis, to the sexual violence complaint, addressing it despite the lack of medical evidence: it was logical that the applicant should not have such evidence as she was allegedly held captive. (§101) Therefore, such evidence could not be expected from her. Her testimony and the seriousness of her allegations before the authorities sufficed for a reasonable suspicion that she was ill-treated as alleged. (id.) Article 3 was applied.

The seriousness of J.I.’s ill-treatment – inhuman – and the ensuing seriousness of her allegation that it was identity-based should have similarly resulted in applying Article 14.        

Indeed, lacking proof of discrimination should be held against respondents where (partly) due to their not investigating. In M. and Others, the Court noted ‘the lack of investigation by the Italian authorities has led to little evidence being available to determine the case’. (§152) In Volodina (cited), it faulted Russia for Volodina’s inability to present data showing discrimination – the authorities failed to collect such data. (§118) In J.I., had the authorities addressed her police misconduct complaint, there might have been information to support or refute an inference of bias against her. The Court omitted that.

J.I. is no departure from the Court’s discrimination jurisprudence. Deciding it differently – addressing inequality – would require the jurisprudence to expand, incorporating the above standards. 

Conclusion

J.I. is a creditable judgment, demonstrating violence against women victimhood awareness.

Less strong on victim protection standards, it also reflects deficits in handling discrimination allegations. Scholars recognise ‘political uses of the international human rights evidence system, including dismissals of politically sensitive complaints on the pretext they are not sufficiently evidenced by the victim.’

Roma women’s structural inequality is not a non-issue. Their discrimination allegations should be contextually analysed, using established instruments to compensate for bias obfuscation, not blaming victims for it, yielding well-reasoned responses they are entitled to.

Two Weeks in Review, 20 November – December 4

New Issue of EJIL (Vol. 33 (2022) No. 3)

The latest issue of the European Journal of International Law  (Vol. 33 (2022) No. 3) is now out. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Read the table of contents
Read the Editorial by Associate Editor Ana Luisa Bernardino
Read the Editorial by EJIL Review Editor Christian Tams

Related posts 

In her post, On My Way In III: It’s Not All About Me: Writing a Cover Letter for an Academic Position, Sarah Nouwen reflects on the cover letter as a genre of academic writing. Nouwen notes that many cover letters miss a key point: the opportunity to make a case for a fit between an individual and a place. Meaning, effective cover letters show the applicant’s consideration of the needs of the hiring institution and how he or she would meet those needs. Nouwen refers to this understanding as ‘job first, applicant second.’

Read the full post here.

Ukraine

Gaiane Nuridzhanian examines control in the context of the war in Ukraine and questions of jurisdiction under the ECHR. Following the Court’s finding on the five-day war in Georgia, Nuridzhanian notes, that the court has jurisdiction over specific events that took place prior to 16 September 2022, when Russia ceased being a party to the ECHR. In the six months, before Russia withdrew from the ECHR, there have been clear instances of Russia’s armed forces or Russia-controlled armed groups exercising effective control on parts of Ukrainian territory, as were cases of members of these forces exercising physical control over individuals’ life and personal liberty in Ukraine. She asserts that:

‘The documentation of the conflict by domestic and international actors should facilitate the task of establishing circumstances of such territorial or personal control at least in most, if not all, potential cases. The Court should therefore take a case-by-case approach to examination of the complaints stemming from the war in Ukraine. A general conclusion that the Convention does not apply to Russia’s actions during its full-scale war in Ukraine, similar to the Court’s finding on the five-day war in Georgia, would be against its well-established jurisprudence on the spatial and personal bases for states’ extraterritorial jurisdiction.’

Read the full post here.

Tomas Hamilton, examines the prospect of corporate accountability for Iranian drones used in Ukraine during the war. Hamilton asserts that the production and transfer of Iranian drones present one of the most compelling scenarios of corporate complicity in Ukraine since 2014. In particular, the sanctions on military support to Russia identify specific individuals and appear to establish a clear factual link to indiscriminate Russian attacks against civilians. He notes, that this close causal nexus, combined with the undeniable awareness of alleged war crimes, may provide fertile grounds for an important and expressive criminal prosecution.

Read his full analysis here.

Natia Kalandarishvili-Mueller explores the protection afforded to civilians under GC IV 1949, in the context of the Russian filtration camps in Ukraine. The author asserts that while IHL does not contain the term filtration, this does not signify that IHL allows the setting up and existence of such camps. Although IHL permits civilian internment in times of International Armed Conflict, it does so under very specific and protective rules set out in GC IV. Kalandarishvili-Mueller concludes that:

‘Russia is not providing any competent and adequate periodic reviews to those protected under GC IV who are in its hands. Instead, a handful of Russian soldiers execute the so-called filtration process. Witnesses who have endured those camps detail traumatic and distressing treatments such as torture, malnutrition, humiliation and interrogations (herehere and sources above). Therefore, Russia’s filtration camps for Ukrainians are a flagrant violation of the accepted rules on internment set out by the GC IV. Filtration camps are to be considered a grave breach of Article 147 GC IV because Russia is engaged in “torture or inhuman treatment … unlawful deportation or transfer or unlawful confinement of a protected person(s)”. Running and maintaining such camps also violates Article 75 of AP I, especially §2, 3, and 6. Finally, Russia organising, administering, and continuing with the filtration camps is a war crime under Article 8 of the ICC Statute.’

Read the full post here.

In the wake of the popular votes organized by Russia in the occupied Ukrainian regions, Daniel Moeckli and Nils Reimann examine the notion that sovereignty referendums are a tool to legitimize territorial claims. The authors argue that the most important requirements for referendums under international law is that they be held in a peaceful environment; civil and political rights must be effectively protected; voter qualification must be based on reasonable criteria; the referendum question must be clear; and compliance with these requirements should be monitored by international observers. The two specifically stress the importance of the voters freely expressing their will, and assert that holding a referendum is the best way of giving people a say in sovereignty issues.

Read the full post here.

More posts

Following Turkey’s withdrawal from the Istanbul Convention, Başak Çali and Laurence Helfer examine the notion that unilateral treaty withdrawals are sovereign decisions that are not subject to legal scrutiny. they assert that the Council’s response to Turkey’s withdrawal from the Istanbul Convention reinforced the consensual view of treaty exit, missing an opportunity to develop the distinctive understanding of human rights agreements that the ECtHR and other international courts have developed and that states subsequently followed. The authors highlight two approaches to evaluating the exit from human rights treaties, the ‘lex specialis’ view, and the ‘gendered’ view.

Read the full post here

In their post, On Binaries, Blind Spots, and Shades of Gray: The UN Report on LGBTQ+ Persons in Armed Conflict, María Cecilia Ercole and Abadir M. Ibrahim, examine the new UN report, presented to the General Assembly at its 77th session. The report concludes that the current international regime is not effective in fully protecting LGBTQ+ persons during armed conflict. In their post, Ercole and Ibrahim explore some of the salient issues raised in the report, expand upon them, and probe some areas for improvement in the field of IHL, in particular regarding Common Article 3 of the Geneva Conventions and IHL special protections. 

Read their full analysis here.

In his post, Project 2100—Is the International Legal Order Fit for Purpose?, Sir Daniel Bethlehem KC, argues the legal order as it stands today is no longer fit for purpose. In his analysis, he mentions the struggles the legal order faced in the past decades, Covid, the global financial crisis of 2007-8, climate change, national security threats, the war in Ukraine and others. He notes:

The international legal system has struggled to cope with these challenges. There has been affirmation, innovation and resilience.  But we are patching and re-engineering and re-upholstering a heavily worn vehicle rather than asking ourselves whether we need a more fundamental overhaul for the next leg of the journey.’

Read the full post here

Joseph Weiler shares his pick of ‘Good Reads’ from the books he read in 2022. Amongst others, these include Moshe Halbetal and Stephen Holmes, The Beginning of Politics: Power in the Biblical Book of Samuel (Princeton University Press, 2017), Jean-Philippe Toussaint, La Salle de bain (Les éditions du minuit, 1985), The Bathroom (transl. Nancy Amphoux and Paul De Angelis, Dalkey Archive Press, 2008), Tommaso Pavone, The Ghost Writers (Cambridge University Press, 2022), and Ferdinand von Schirach, The Collini Case (Penguin 2013). See his full post 

Read the full post here.

In his post, Is there a Right to be Protected from the Adverse Effects of Scientific Progress and its Applications?, Andrew Mazibrada examines the scope of the right to protection from the adverse effects of scientific progress and its applications. Under the interpretation of Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights, an entitlement to access the benefits of scientific progress and its applications, particularly technology, is almost certainly settled content of the right to science. Mazibrada argues that entitlement to protection from adverse effects can be properly interpreted from Article 15 as a whole, but the scope of its application and the nature of the duties and obligations it creates are complex and require careful analysis if that interpretation is to be accepted and implemented.

Read the full analysis here.

 

All recent Events and Announcements can be found here.

The European Journal of International Law has new advanced articles and advanced reviews available to read online.

Announcements: CfA Emile Noël Fellowship Program; CfA Global Fellows Program; CfA Visiting Doctoral Researcher Program; Postdoctoral Research Grant Vacancy; CfP The Global South and Liberal Values; CfP American Review of International Arbitration; UN Audiovisual Library of International Law; CfP Entanglements in Refugee and Migration Law; Migrations, Rule of Law and European Values Workshop

1. Call for Applications: Emile Noël Fellowship Program. New York University School of Law is currently accepting applications for the Emile Noël Fellowship Program. Deadline 15 January 2023. The principal objective of the Emile Noël Fellowship program is scholarship and the advancement of research on the themes prioritized by the Jean Monnet Center for International and Regional Economic Law & Justice, which include the following overarching areas: European Integration, general issues of International (principally WTO), and Regional Economic Law and Justice and Comparative Constitutional Law. The Jean Monnet Center at NYU School of Law currently offers fellowship opportunities for scholars in the following categories: 1.  Global & Senior Global Emile Noël Research Fellows; 2. Global Emile Noël Fellows from Practice and Government; and, 3. Post-Doctoral Global Emile Noël Fellows. For an overview of Program eligibility and other guidelines and to apply, visit the Emile Noël Fellowship Program Overview page. Questions about the Emile Noël Fellowships should be directed to: JeanMonnet {at} nyu(.)edu.

2. Call for Applications: Global Fellows Program. New York University School of Law is currently accepting applications for the Global Fellows Program. Deadline 15 January 2023. The Global Fellows Program offers an opportunity for academics, practitioners, government officials and post-doctoral scholars from around the world to spend a semester or academic year in residence at NYU School of Law.  The principal objective of the Global Fellows Program is the production of scholarship through the advancement of research. Fellows are welcome to participate in academic activities such as fora, lectures, colloquia, seminars and conferences. They are also invited to various social events, including some organized specifically for Global Fellows and others aimed at the broader community. The Global Fellows Program currently offers fellowship opportunities for scholars in the following categories: 1. Global and Senior Global Research Fellows; 2. Global and Senior Global Fellows from Practice & Government; and, 3. Post-Doctoral Global Fellows. For an overview of Program eligibility and other guidelines and to apply, visit the Global Fellows Program Overview page. Questions about the Global Fellows Program should be directed to: law.global {at} nyu(.)edu.

3. Call for Applications: Visiting Doctoral Researcher Program. New York University School of Law is currently accepting applications for the Visiting Doctoral Researcher Program. Deadline 15 February 2023. Visiting Doctoral Researchers are doctoral candidates enrolled in a doctoral degree program at another institution abroad who wish to benefit from spending one year of their research at NYU School of Law. They will be fully integrated into the JSD program as far as is relevant. The JSD program invites approximately five to six Visiting Doctoral Researchers each academic year to contribute to the Visiting Doctoral Researcher position. The Visiting Doctoral Researchers are actively integrated into the Law School community through various academic and social programs, including an invitation to participate in the JSD Colloquium where they may present their research. For an overview of Program eligibility and other guidelines and to apply, visit the Visiting Doctoral Researcher Program Overview page. Questions about the Visiting Doctoral Researcher Program should be directed to: jsdcoordinator {at} nyu(.)edu.

4. Postdoctoral Research Grant (2 years) in International Law, Bocconi University. The successful candidate, who will be responsible to Prof. Roger O’Keefe, will be required to conduct research and to contribute to institutional activities (including moot courts) in the field of public international law, including international criminal law. Details, including how to apply, are available here.

5. Call for Papers: The “Global South” and Liberal Values in the Historiography of Human Rights. As part of the Cluster of Excellence “Contestations of the Liberal Script” (SCRIPTS), Tobias Berger (Freie Universität Berlin), Anna Holzscheiter (Technische Universität Dresden), and Thomas Risse (Freie Universität Berlin) are organising a workshop to be held in Berlin on 4-5 May 2023. The workshop aims to discuss the place of liberal values in twentieth-century contestations over human rights, and it is intended as a first step towards a joint publication. Scholars working in the social sciences – including but not limited to IR and legal scholars, historians, and political scientists – are invited to submit a 300/500-word abstract and a short bio as a single file by 6 January 2023 to Prof. Tobias Berger (tobias.berger {at} fu-berlin(.)de). Expenses for attending the workshop will be covered by the organisation. Find the full call for papers here.

6. Call for Papers: American Review of International Arbitration at Columbia Law School. The American Review of International Arbitration at Columbia Law School, a leading international dispute resolution journal, is soliciting manuscripts of Articles and Notes for possible publication in Volume 34, no. 2 (winter 2023) – Special Issue: Russian-Ukraine War. They welcome Articles by scholars, practitioners, and other professionals, as well as Notes by law students, with especial encouragement for authors from communities traditionally underrepresented in international arbitration scholarship and practice. While submissions related to the Russian-Ukraine war are especially encouraged, they welcome manuscripts on other topics. Manuscripts should be submitted as an email attachment in Microsoft Word format to aria {at} law.columbia(.)edu, with “Submission for Review [last name]” as the subject line, by 15 January 2023. ARIA also accepts manuscripts of Blog Posts relating to recent developments in international arbitration for potential online publication on a year-round basis. Direct any questions to ARIA’s Student Editor-in-Chief, Olivia Lu, who can be reached at osl2102 {at} columbia(.)edu.

7. New Additions to the UN Audiovisual Library of International Law (AVL). The Codification Division of the Office of Legal Affairs recently added the following materials to the Mini-Series of the UN Audiovisual Library of International Law: A new lecture entitled Self-Defence and “Unwilling or Unable” Statesby Mr. Said Mahmoudi, Professor of International Law at Stockholm University and two lectures entitled The Legal Status of Cyberspace under International Law and The Use of Force in Cyberspace by Mr. Nicholas Tsagourias, Professor of International Law at the University of Sheffield. The Audiovisual Library of International Law is also available as an audio podcast on Apple, Google and SoundCloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.

8. Call for Papers: Entanglements in Refugee and Migration Law, Celebrating Forty Years of the Nordic Asylum Law Seminar. The Nordic Asylum Law Seminar is an international conference for scholars, practitioners, and civil society. The conference is open to papers covering issues in international refugee and migration law in the Nordic region and beyond. This year the conference takes a specific focus on the intersections, or entanglement, between refugee and migration law and other fields of international, regional and national law. This edition marks the fortieth anniversary of the conference and will feature keynote presentations from international scholars and high level debates between practitioners and academics.  The Nordic Asylum Seminar will take place on 23 – 24 May 2023 at the University of Copenhagen, and is organised by the Nordic Institute for Migration and the Center of Excellence for Global Mobility Law. Further information and the call for papers is available here.

9. Workshop for Young Researchers: Migrations, Rule of Law and European Values. Hosted by University of Salerno IT. Interested young researchers are invited to send, by 15 February 2023, an abstract written in Italian or in English (between 1.500-3.000 words), together with a CV, to slsg {at} unisa(.)it. Proposals will be selected by the Scientific Committee. The outcome of the selection – which is going to be conducted on the basis of the relevance to the themes of the call, the originality, and diversity of the subjects – will be announced by email no later than 20 March 2023. See here and here for more information.

10 Good Reads 2022

Here is my pick of ‘Good Reads’ from the books I read in 2022. I want to remind you, as I do every year, that these are not ‘book reviews’, which also explains the relative paucity of law books or books about the law. Many excellent ones have come my way in 2022, as in previous years, but an excellent law book is not always, in fact rarely is, a ‘good read’ in the sense intended here: curl up on the sofa and enjoy a very good read, maybe even as a respite from an excellent law book. I should also point out that some of these ‘good reads’ are not necessarily literary masterpieces – and yet, still, they are very good reads.

Moshe Halbetal and Stephen Holmes, The Beginning of Politics: Power in the Biblical Book of Samuel (Princeton University Press, 2017)

Inspired by this wonderful volume, which analyses the Book of Samuel, I recently gave a talk entitled ‘Politics, Power and Authority? Forget Machiavelli – It Is All in the Book of Samuel’. Alongside King David, Machiavelli’s Prince is a mere apprentice. Machiavelli taught ‘Never do an enemy a small injury’. David could have said (but was smart enough to keep this counsel to himself) ‘Never leave an enemy alive’. He was also smart enough to leave the killings to his lackeys and then wash his hands of it. (He did spare Saul’s life, caught with his pants, literally, down – a smart move by a smart political operator).

From Halbertal and Holmes’ book you will learn (a lot), become wiser (a lot) and derive pleasure (a lot). The book is not only a profound study of the building blocks of politics, but also a masterly exercise in literary analysis. And without compromising its scholarly depth, it reads so well.

In fact, this recommendation is a ‘two for the price of one’, for after reading The Beginning of Politics you will not need my exhortation to go and read the Book(s) of Samuel. And for those who have read it before, you will read it with new eyes.

‘Samuel?’, you may be thinking, ‘is it not just one of those turgid biblical repetitive narrations of that inimitable skill of the Israelites to frustrate the Almighty, generation after generation?’ Think again. As story and drama it has it all: the tale of the House of Saul and the House of David has not only palace intrigues, bloody wars both internal and external with exquisite drama (think of David and Goliath as mere appetizer), there is also fratricide, murder, rape, incest.  If Netflix were to ask me which Old Testament Book would make for the best series, it would have to be Samuel. It would leave Game of Thrones and its prequel in the dust. (I am not sure how much of a recommendation this is!).

Jean-Philippe Toussaint, La Salle de bain (Les éditions du minuit, 1985), The Bathroom (transl. Nancy Amphoux and Paul De Angelis, Dalkey Archive Press, 2008); L’appareil photo (Les éditions du minuit, 1989), Camera (transl. Matthew B. Smith, Dalkey Archive Press, 2008)

If Halberal and Holmes made it to the top of the saggistica list, Toussaint makes it to the top of the Belles Lettres. Reading his first (1985) novel (La Salle de bain) and his second (1989) (L’appareil photo) I kept thinking with remorse – better late than never. For how could I have been oblivious to such genius for almost 40 years? And of course, since reading (and rereading) these two slim volumes I have been working my way through the remainder of his work. I consoled myself, in the self-deceiving manner of the aging and aged, that maybe it was an advantage to come to him later in life.  

You can already sense that I am writing about Toussaint with the same enthusiasm I have towards, say, Sebald. And there are some parallels, parallels which go to style rather than content.  There are very good novels. And then there are very good novels, which at the same time change the way we think about The Novel. A little bit like, say, those who pioneered a New School in painting. Toussaint belongs to this rare second category.

Prepare yourself for a little shock when beginning to read Bathroom. But please, please do not be put off. It takes a little while to get the hang of it, but then it just sweeps you in. The books are short, but unlike say, Von Schirach about whom I write below, not to be read in one gulp. For fun I read the Italian, Spanish and English language editions (the choice of graphics for the covers amused me). The translations are, commendably, fine.

What are the books about? It is not the case here of not wanting to risk a spoiler. It is just so difficult actually to explain or even describe what they are ‘about’. You will understand when you read them. But here, too: do not be put off. Bear with it and you will be seduced. I will give you one teaser: L’appareil photo is possibly the most delicate love story I have ever read.

Tommaso Pavone, The Ghost Writers (Cambridge University Press, 2022)

My generation of European Law lawyers are hopelessly Court-centric. That’s what we know (or think we know). That is what interests us. European Law is about the Court of Justice of the European Union. Already years ago, Jo Shaw inveighed against this narrow view, which tends to leave out the main corpus of the law – legislation. She was right. You cannot write knowledgeably about the state of health of a country by simply visiting its hospitals. But there is another blind spot (more a black hole than a spot) in the Court-centric view of European law: the role of lawyers – in bringing cases, in arguing cases, in strategizing litigation, in virtually putting words in the mouth of the judges. Indeed, oftentimes the judgments we admire most are not the result of the genius of the judges but of the lawyers. I suppose the fundamental role of the Commission (and its Legal Service) have received attention, recognition (and critique), already going back to Eric Stein. But Pavone stretches his canvas far wider and he does so with verve and brilliance. The book has a thesis – almost conspiratorial in nature – which you might find at times overstated. I did, but this did not, and does not, detract from my high opinion of the book. For innovators, a modicum of exaggeration is a virtue, an indispensable virtue. Be that as it may, you are unlikely to think of Integration through Law in quite the same way as you did after reading this stimulating book. And by the nature of the enterprise, the book is attuned to the political and social context of European law, which has come to impact our lives in so many ways.

The underlying normativity of the book was not always clear to me, but that might be my own shortcoming and, in any event, even if I am right and it is not clear, here too, I regard this as a virtue. Last but not least, and this is what explains its appearance in this year’s list, it is a very good read.

Ferdinand von Schirach, The Collini Case (Penguin 2013)

Von Schirach is a prominent German criminal law lawyer. He is also a best-selling author (translated into a million languages), several of whose books have been made into films. His life as a lawyer and some of the cases in which he acted provide the background (and at times much more) of his stories and novellas. For example, he recounts in Crime and Guilt (which I read years ago) his very first case – a harrowing tale of gang rape (the ‘gang’ in question being a group of the most respectable citizens of a small town in Germany – in which he acted as defence attorney and in which he (and his fellow attorneys) got the culprits off the hook on a procedural technicality. It was, in his own words, the ‘loss of innocence’ in his new profession. It will stick in your mind forever.

Although The Collini Case is one of his most famous, I got to it only this year. It is the epitome of a Good Read. Von Schirach is introspective and thoughtful, and getting the guilty acquitted is balanced by getting the wrongly accused acquitted. His conscience thus remains pure (I say this tongue in cheek). The stories and novellas are not truly profound, but are always thought-provoking. But what makes him such a good read and, justly, such a popular and best-selling author is his remarkable storytelling talent. You can intuit why he is such a successful lawyer, though the reverse relationship does not often work …

The Collini Case is a case in point. I want to avoid spoilers, but the manner in which he weaves his tale (based on a real-life prominent and notorious case) draws you ineluctably in. It is the kind of book, short, which you will read in one afternoon without putting it down. And even though the twist at the end is foreseeable early on, you will still not be able to put the book down. Von Schirach is, too, an acute social observer of contemporary Germany. Not great literature, a very good read.

Signe Rehling Larsen, The Constitutional Theory of the Federation and the

European Union (Oxford University Press, 2021)

I am sure that the title alone will evoke a yawn or grimace of the ‘not again’ genre. Can we not put behind us the EU identity navel-gazing? So I thought. Then I heard a talk by the author at the ICON-S Annual Meeting in Wroclaw this year and decided I must take a look at the book. If you are an EU scholar, I think you should too. It’s not some blinding insight that will strike you, nor will you agree with everything. Well, how could you? Three European scholars means four opinions on ‘what the EU is’. Instead, it is not only refreshing to revisit the old debates (speaking as one of the General Editors and authors of Integration through Law – Europe and the American Federal Experience of 80s vintage.) But Larsen is judicious and insightful in what she deals with, and manages to make the discourse relevant, very relevant to contemporary debates (and hand-wringing) about our beloved Union. And, crucially, it’s of very manageable proportions and a good read.

P.D. James, An Unsuitable Job for a Woman (Faber & Faber, 1972)

As a crime/detective writer, P.D. James is second to none. I think years back I must have read all her Adam Dalgliesh novels and watched the excellent BBC TV series – way before series became the preferred genre of the big studios. They are still available on YouTube. But somehow, I was oblivious to the Cordelia Gray novels. (And please don’t jump to facile conclusions.) An Unsuitable Job for a Woman is the first of these and having finally read it I discovered to my regret that she apparently only wrote one more. It is vintage P.D James – a compelling page turner. But Cordelia Gray is not simply a female Adam Dalgliesh. He, experienced, poetry lover, melancholic at times, and almost at the point of burnout. She, young (22), accidently takes a job with a failed (but very wise) private detective whose agency is at the point of bankruptcy and who commits suicide at the beginning of the tale (this is not a spoiler), leaving her to tackle on her own her first independent case. She did ‘read’ (as they say in British university circles) English lit. at college, a fact that plays an important part in the story. Indeed, it is a very ‘Cambridge’ tale. P.D. James not only tells a very good story, but is a keen observer of the human and social condition. It is a ‘one day, one gulp’ book, but a satisfying read at that.

Bruno Schulz, Collected Stories (transl. Madeline G. Levine, Northwestern University Press, 2018)

If you read David Grossman’s first novel, See Under: Love, you will have come across Bruno Schulz in a fantasy chapter ‘dedicated’ to him. The circumstances of his death are as harrowing as they are grotesque. When in Operation Barbarossa the Germans took over Drohobych (in the Lviv area) from the Soviets (who had occupied that part of Poland), a ghetto was established – a one-way road to the Belzec extermination camp. But Schulz, a resident of Drohobych, was a gifted painter as well as an extraordinary writer (he won the Polish Academy of Literature Golden Laurel award in 1938 – at the very end of those 20 culturally golden years of post WWI Polish independence) and was offered protection – as his ‘personal Jew’ – by one Landau, a German Gestapo officer, in exchange for painting for him. In 1942 Schulz was shot in the street by another German Gestapo officer, one Guenther, as an act of revenge. Apparently, Landau had murdered Guenther’s ‘personal Jew’, so here was payback. Schulz was 50 years-old at the time of his murder.

He was not prolific, and important parts of his writing did not survive. He is most famous for Sklepy Cynamonowe (1934), translated into English as The Street of Crocodiles. I read some Schulz when I was far too young, and it left no impression on me. But seeing that a new translation appeared (in 2018), I read it again this year. It is a masterpiece. It is a series of short stories relating to his local habitat. If you read it, you will understand why it so impressed the literary world then and now. It has one of the characteristics of a classic since it is at one and the same time minutely focused in space and time, and yet it is universal in space and is timeless. Even in translation (the Polish original defeated me, sigh), his descriptive powers as regards smell, colour and the normal objects and goings on of daily life, not to mention his acute observation of his human subjects, is close to mesmerizing. Schulz (like Olga Tokarczuk) also gives lie to the usual well-meaning (and foul-meaning) descriptions of relations between Jews and Poles. In Schulz there are no Polish Jews, but Jewish Poles, and their relationship to their fellow Catholic Poles covers the whole gamut of sociality, as one would expect if one could rid oneself of the habitual stereotypes.

Schulz had a dark view of life in general, so do not expect cathartic moments. But you will find big words, an additional gloss on the human condition – where the universal can only be grasped through the local. Great writer – good read.

Benito Pérez Galdós, Trafalgar (Edicn de José Andrés Álvaro Ocáriz) (Desiréediciones, 2017)

If you think Trafalgar, or for that matter Waterloo, and if you have grown up in the English-speaking world, you might normally think of the genius and bravery of Nelson and the strategic brilliance (and luck) of Wellington. You (or at least I) do not give much thought to the vanquished.

Trafalgar, first of Benito Pérez Galdós’ (1843-1920) 19  Episodios Nacionales of Spanish history, is a classic correction to such. It is written in novelistic form, from the perspective of a young, inexperienced sailor (Gabriel), who joins the Spanish/French Armada on the eve of the famous battle. (In this he is reminiscent of the young Fabrice del Dongo, he of Stendhal’s La Chartreuse de Parme, who experiences Waterloo as a foot soldier and only catches a glimpse from the muddy field of Napoleon’s gown passing by on his horse.)

It is by no means a revisionist history, nor an apologetic account – though he does express his (historically justified) disgust at the French Admiral Villeneuve, who botched the battle for the Spanish-French alliance.

From a literary point of view, the book belongs to the 19th-century school of realism – and is really rather good as such – though by no means, in and of itself, is it a ‘great’ novel. Its importance is that in the genre of fictionalized history, it is not a history of kings and heroes – an Upstairs tale – but gives the view from Downstairs. And that, of course, gives it a human touch, which is helped by a good dose of humour and irony and which never deteriorates to self-lacerating despair and cynicism, such as one finds in, say that other true masterpiece of the vanquished All Quiet on the Western Front. But it shares with Remarque a revulsion to war. I suppose we must be grateful to authors of the vanquished to debunk the glorification of armed conflict.

If you are interested in the historicity of the battle as well as the novelistic, I recommend the Critical Edition of 2017 by José Andrés Álvaro Ocáriz, himself a gifted poet and author.

Fernando Aramburu, Los peces de la amargura (Tusquets Editores, 2009)

This is a collection of short stories by Aramburu (he of Patria fame). I think this is a perfect introduction to this gifted author, though written after some of the novels that made his name. It has become somewhat à la mode in certain Spanish circles to critique Aramburu as ‘not really deep’ and similar such characterizations. Pay no attention. Pure jealousy, which is the usual lot of serious authors whose work gains a popular appeal, is made into movies, and the like.

I had not before this year read any short stories by him – I am not even sure if he has other short story collections. The transition from novel to short story is neither obvious nor always successful, as is the case with the transition from short story to novel. (Think Maupassant, with the possible exception of Bel Ami, or Cheever – masters of the short story, mediocre novelists). Aramburu is as good a short story author as he is a novelist. The collection ends with a story in the form of a play, Después de las Llamas. It is a jewel. And I can say with some confidence that no matter your taste in Belles Lettres you will find this collection a very good read.

Alda Merini, Vuoto d’amore (Einaudi, 1991)

This anthology of Merini’s poetry was a present, which collected dust on my shelves since 2018, and finally it (and I) found redemption. Another ‘better late than never’ – with a vengeance.

The poetry is essential, exquisite and at times shattering. Merini had a difficult life, including a period of psychiatric hospitalization, reflected in her 1984 collection La Terra Santa – personal and intense, some of which is included in this volume. But let that not deter you. The pain is never lachrymose, the suffering never self-pitying. And in quite a few of the poems, love letters in the form of poems, there is a subtle and delicate humorous irony, including self-irony. It is, too, the poetry of a ferociously strong woman.

This is the poem that opens this anthology:

Lo sguardo del poeta

Se qualcuno cercasse de capire il tuo sguardo

Poeta difenditi con ferocia

il tuo sguardo son cento sguardi che ahimè ti hanno

               guardato tremando

A Short ‘Theological’ Epilogue

Among my friends, my passion for literature is well known. ‘How do you find the time? What is your secret?’, I am so often asked. And yes, I believe that I am as busy an academic as the next one. We all know that the moment we are appointed to an academic position, we can wave goodbye to La Vita Contemplativa. It is a life of juggling teaching with research and writing and with the endless other commitments of academic citizenship. There is always a deadline looming, a paper for which you begged ‘…one more weekend please, Monday morning, no fail’.

It is a form of slavery to our work (the charitable view) or (the less charitable view) to our ambition.

What, then, is ‘my secret’?

In Mark 2:27 Jesus famously said, ‘The Sabbath was made for man, not man for the Sabbath.’ ‘Yes, but’, replies this Pharisaic Jew… (you expected this ‘Yes, but’). My view, for what it is worth, is that only if one accepts in the deepest sense that man was made, so to speak, for the Sabbath, will the Sabbath end up being made for man.

During the 25 hours of the Sabbath, there are no emails or WhatsApps, no computer or TV, no work-related activities (that Monday deadline notwithstanding), no shopping, no use of vehicles. It is a time out of time. And ritual commitments fulfilled, one can turn to other spiritual activities of which reading Belles Lettres surely is. Add to the Sabbaths the various Holy days (not holidays, I fear) and one ends up with quite a lot of time for non-work-related reading each year.

Two caveats are in order: first, if this reads like some form of Jewish evangelizing – ‘become a Jew and observe the Sabbath’ – perish the thought. I would not wish such even on my enemies (well, maybe on one or two I would). But assigning to yourself a day a week that takes you out of the normal rhythms of daily life, of work and ambition may be worth a thought.

Second, Judaism, alongside the other monotheistic religions, is notorious for some aspects of its attitude towards women, Sabbath observance being one such case. Partly in law, partly in custom, household chores and childcare are left to women, and thus the guys can have a rewarding spiritual time. There are, of course, egalitarian ways of sharing the burden and for some time now there have been vibrant forms of egalitarian Judaism trying to address among many other issues that too.

Previous Good Reads

(2014)

Moshe Halbertal, Maimonides: Life and Thought (Princeton: Princeton University Press, 2013); Robert Howse, Leo Strauss, Man of Peace (Cambridge: Cambridge University Press, 2014); Norman Davies and Roger Moorhouse, Microcosm. A Portrait of a Central European City (London: Pimlico, new edition, 2003); Gregor Thum, Uprooted: How Breslau Became Wroclaw during the Century of Expulsions (Princeton: Princeton University Press, 2011); Klemen Jaklic, Constitutional Pluralism in the EU (Oxford: Oxford University Press, 2014); Nick Barber, The Constitutional State (Oxford: Oxford University Press, 2012); Wistawa Szymborska, Here (Boston: Mariner Books, 2012); Wistawa Szymborska, Poems New and Collected (Boston: Mariner Books, 2000 (or any other collection of her poems)); Michael S. Pardo and Dennis Patterson, Mind, Brains, and Law: The Conceptual Foundations of Law and Neuroscience (New York: Oxford University Press, 2013); Maria Aristodemou, Law & Literature: Journeys from Her to Eternity (Oxford: Oxford University Press, 2000); Thomas D. Seeley, Honeybee Democracy (Princeton: Princeton University Press, 2010); Jürgen Tautz, The Buzz about the Bees: Biology of a Superorganism (Heidelberg et al.: Springer Verlag, 2008).

(2015)

Michaela Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism (Oxford University Press, 2015); Vittoria Barsotti, Paolo Carozza, Marta Cartabia and Andrea Simoncini, Italian Constitutional Justice in Global Context (Oxford University Press, 2015); Sabino Cassese, Dentro La Corte. Diario di un Giudice Costituzionale (Il Mulino, 2015); Moshe Hirsch, Invitation to the Sociology of International Law (Oxford University Press, 2015); Jürgen Kurtz, The WTO and International Investment Law: Converging Systems (Cambridge University Press, 2016); Dorte Sindbjerg Martinsen, An Ever More Powerful Court? The Political Constraints of Legal Integration in the European Union (Oxford University Press, 2015); W.G. Sebald, On the Natural History of Destruction (Modern Library, 1999); Pio Baroja, El Arbol de la Ciencia (first published 1911); Patti Smith, M Train (Alfred A. Knopf, 2015); Miguel de Unamuno, San Manuel Bueno, mártir (first published 1930).

(2016)

Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (Knopf, 2016); Mario Vargas Llosa, Travesuras de la niña mala (Alfaguara, 2006); Patrick Pasture, Imagining European Unity Since 1000 AD (Palgrave Macmillan, 2015); Ricardo de Ángel Yágüez, ¿Es Bello el Derecho? (Civitas, 2016); Olivier Dupéré, Constitution et droit international (Institut Universitaire Varenne, 2016); David Bellos, Georges Perec: A Life in Words: A Biography (D.R. Godine, 1993); Monica Garcia-Salmones Rovira, The Project of Positivism in International Law (Oxford University Press, 2014); Julio Ramón Ribeyro, La palabra del mudo (Seix Barral, 2010); Marise Cremona, David Kleimann, Joris Larik, Rena Lee and Pascal Vennesson, ASEAN’s External Agreements: Law, Practice and the Quest for Collective Action (Cambridge University Press, 2015); Mary Oliver, Felicity: Poems (Penguin Press, 2015).

(2017)

Robert Caro, The Years of Lyndon Johnson, 4 Volumes (Alfred A. Knopf, 1982–2012); Ludovic Hennebel and Hélène Tigroudja, Traité de droit international des Droits de l’homme (Editions Pedone, 2016); Lauri Mälksoo, Russian Approaches to International Law (Oxford University Press, 2015); Aldo Schiavone, Ponzio Pilato: Un enigma tra storia e memoria (Einaudi, 2016); Pontius Pilate: Deciphering a Memory (transl. Jeremy Carden, Liveright, 2017); Eduardo García de Enterría, Fervor de Borges (Editorial Trotta, 1999); Guy Fiti Sinclair, To Reform the World—International Organizations and the Making of Modern States (Oxford University Press, 2017); Matthew Saul, Andreas Follesdal and Geir Ulfstein (eds), The International Human Rights Judiciary and National Parliaments (Cambridge University Press, 2017); Bernard E. Harcourt, Exposed—Desire and Disobedience in the Digital Age (Harvard University Press, 2015); María Elvira Roca Barea, Imperiofobia y Leyenda Negra—Roma, Rusia, Estados Unidos y el Imperio español (Siruela, 2016); Claudio Rodríguez, Alianza y Condena (Ediciones de la Revista de Occidente, 1965); Alliance and Condemnation (transl. Philip W. Silver, Swan Isle Press, 2014).

(2018)

Marcel Reich-Ranicki, The Author of Himself: The Life of Marcel Reich-Ranicki (Princeton University Press, 2001); Louis Dumont, German Ideology: Essays on Individualism: Modern Ideology in Anthropological Perspective (University of Chicago Press, 1986); Louis Dumont, German Ideology: From France to Germany and Back (University of Chicago Press, 1994); Yishai Beer, Military Professionalism and Humanitarian Law: The Struggle to Reduce the Hazards of War (Oxford University Press, 2018); Hilary Mantel, Wolf Hall (Fourth Estate, 2009); Hilary Mantel, Bring Up the Bodies (Fourth Estate, 2012); Dennis Marks, Wandering Jew: The Search for Joseph Roth (Notting Hill Editions, 2016); E. B. White, Here Is New York (The Little Bookroom, 1999; Harper, 1949 (1st ed.)); Charles Leben (ed.), Droit international des investissements et de l’arbitrage transnational (Editions A. Pedone, 2015); Benjamin D. Sommer, Revelation and Authority: Sinai in Jewish Scripture and Tradition (Yale University Press, 2015); Miguel Beltrán de Felipe and Daniel Sarmiento Ramírez-Esudero, Un Tribunal para la Constitución (Registradores de España, 2017); It Stays With You (Documentary film, produced and directed by Cahal McLaughlin and Siobhan Mills, 2017, available at https://vimeo. com/222497700).

(2019)

Anthony Julius, Trials of the Diaspora—A History of Anti-Semitism in England (Oxford University Press, 2010); Julio Baquero Cruz, What’s Left of the Law of Integration? Decay and Resistance in European Union Law (Oxford University Press, 2018); Julio Baquero Cruz, El árbol Azul (Cuadernos de Langre, 2018); Francisco J. Urbina, A Critique of Proportionality and Balancing (Cambridge University Press, 2017); Ilenia Ruggiu, Culture and the Judiciary: The Anthropologist Judge (Routledge, 2018); Karen J. Alter and Laurence R. Helfer, Transplanting International Courts—The Law and Politics of the Andean Tribunal of Justice (Oxford University Press, 2017); Javier Marias, Corazon Tan Blanco (A Heart So White) (Editorial Anagrama, 1992; transl. Margaret Jull Costa, Harvill Press, 1995); Magda Szabó, The Door (transl. Len Rix, Harvill Press, 2005); Richard Ford, The Sportswriter (followed by Independence Day, The Lay of the Land, Let Me Be Frank with You) (Vintage, 1995); Kalypso Nicolaidis, Exodus, Reckoning, Sacrifice: Three Meanings of Brexit (Unbound, 2019); Hanoch Levin, The Labor of Life: Selected Plays (Stanford University Press, 2003).

(2020)

Olga Tokarczuk, The Books of Jacob (Księgi Jakubowe albo Wielka podróż przez siedem granic, pięć języków i trzy duże religie, nie licząc tych małych) [The Books of Jacob, or a Great Journey Through Seven Borders, Five Languages and Three Major Religions, Not Counting the Small Ones] (Wydawnictwo Literackie, 2014); Harry Mulisch, The Discovery of Heaven (transl. Paul Vincent, Penguin, 1997); Olivier Corten, Le discours du droit international—Pour un positivisme critique (Pedone, 2009); Janusz Korczak, Bankructwo Małego Dżeka (Krajowa Agencja Wydawnicza RSW “Prasa- Książka-Ruch”, 1979); Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (Cambridge University Press, 2015); Witold Gombrowicz, Bacacay (transl. Bill Johnston, Archipelago, 2006); William Phelan, Great Judgments of the European Court of Justice: Rethinking the Landmark Decisions of the Foundational Period (Cambridge University Press, 2019); Robert Massie, Dreadnought—Britain, Germany and the Coming of the Great War (Ballantine Books, 1992); Andoni Luis Aduriz y Daniel Innertarity, Cocinar, Comer, Convivir—Recetas para pensar con los cinco sentidos (Ediciones Destino, 2012); Josef Hen, Nowolipie Street (transl. Krystyna Boron, Dl Books Llc, 2012).

(2021)

Robert Seethaler, The Tobacconist (Transl. Charlotte Collins. Picador, 2017) (Der Trafikant (Kein & Aber, 2012)); Irwin D. Yalom, When Nietzsche Wept (Basic Books, 1992); Hans Küng, Freud and the Problem of God (Transl. Edward Quinn. Yale University Press, 1990); Yosef Hayim Yerushalmi, Freud’s Moses (Yale University Press, 1993); Dorothy Parker, The Portable Dorothy Parker (Penguin Classics Deluxe Edition, second revision, 2006); Andrew Clapham, War (Oxford University Press, 2021); Charlotte Allen, The Human Christ – The Search for the Historical Jesus (The Free Press, 1998); Alicja Sikora, Constitutionalisation of Environmental Protection in EU Law (Europa Law Publishing, 2020); Doreen Lustig, Veiled Power, International Law and the Private Corporation 1886-1981 (Oxford University Press, 2020); Adam Zagajewski, Mysticism for Beginners (Poems) (Transl. Clare Cavanagh. Farrar Straus & Girou, 1997). Honourable Mentions:  Wolfgang Borchert, The Man Outside (A Play) (New Directions, revised edition 1982); Joachim Fest, Not I – Memoirs of a German Childhood (Transl. Martin Chalmers, Other Press, 2012).

Are sovereignty referendums but a tool to legitimize territorial claims of the powerful?

This is the impression one could be left with in the wake of the popular votes organized by Russia in the occupied Ukrainian regions of Donetsk, Kherson, Luhansk, and Zaporizhzhia. This impression might be reinforced by the fact that, as recently shown by Sze Hong Lam on these pages, these were by far not the first referendums to be (mis)used to justify the reallocation of sovereignty. Invocations of popular self-determination to legitimize annexations of territories can be traced back to the time of the French Revolution.

The wider picture

Considering that more than 600 referendums on sovereignty have been held across the world, it can, however, hardly come as a surprise that some of them should have been manipulated by those with the power to do so. As with any other instrument, one cannot do justice to the sovereignty referendum by focusing exclusively on its misuses. That voters are forced at gunpoint to cast their ballot is the exception, not the rule.

Instead of Donetsk, Kherson, Luhansk, and Zaporizhzhia (2022) or, for that matter, Crimea (2014), one could point to Eritrea (1993), Montenegro (2006), Scotland (2014), or Bougainville (2019). In fact, one does not need to look further than Ukraine itself to find a rather uncontroversial example of a legitimate referendum: its existence as a sovereign state is rooted in the approval of independence from the Soviet Union in a popular vote held in 1991.

These, and numerous further, referendums allowed the inhabitants of the territories concerned to freely and genuinely express their will regarding their political, economic, social, and cultural destiny. This is, after all, what, according to the International Court of Justice, the application of the right to self-determination requires. Holding a referendum is the most obvious method of consulting people on questions relating to self-determination, as it gives them the opportunity to directly express their opinion on a specific proposed course of action.

The importance of procedure

Thus, a referendum may be a perfectly appropriate – and, we would argue, in many instances the only appropriate – means to decide on the territorial contours of a polity. However, for this to be the case, the conduct of a given referendum must meet a number of requirements that follow, in particular, from the guarantees of universal, equal, and secret suffrage and the freedom of voters to form and express an opinion set forth by Article 25(b) of the International Covenant on Civil and Political Rights.

What these guarantees entail, has been spelled out in more detail by the Venice Commission in its Revised Guidelines on the Holding of Referendums. To highlight only some of the most important requirements under international law: referendums need to be held in a peaceful environment; civil and political rights must be effectively protected; voter qualification must be based on reasonable criteria; the referendum question must be clear; and compliance with these requirements should be monitored by international observers.

A necessary condition for secession

In cases of secession, respect of these procedural requirements has proven to be decisive when it comes to international recognition. An analysis of international practice since 1990 demonstrates that recognition only followed in cases where secession was backed by popular support and, more specifically, where this popular support was expressed in a referendum conducted in accordance with international standards. As a consequence, a rule of customary international law has crystallized: a (successful) referendum on the question of independence that meets the requirements described above has come to be regarded as a necessary condition for achieving statehood.

The international response to the referendums in Russian-occupied territories of Ukraine arguably gives further impetus to such a norm of customary international law. In the case of the referendum held in Crimea in 2014, states and international organizations in unison declined to recognize the result, citing reasons such as military intimidation, a manipulated media environment, implausibility of the results reported, and the lack of credible international observation. The UN General Assembly passed Resolution 68/262, underscoring the invalidity of the referendum and calling on states not to recognize any alteration of Crimea’s status on its basis. Similarly, the popular consultations in Donetsk, Kherson, Luhansk, and Zaporizhzhia were widely decried as farce that could not be considered as the free expression of the will of the people living in these regions. On 12 October 2022 the Assembly condemned Russia’s organization of the ‘illegal so-called referendums’, declared them to have ‘no validity under international law’, and called on states not to recognize any alteration of the status of any of these regions (Resolution ES-11/4). While already the resolution on Crimea was adopted by a large majority of states (100 in favour, 11 against, 58 abstentions), support for this year’s resolution was overwhelming (143 in favour, 5 against, 35 abstentions).

Assuming that most states will abide by these resolutions and refuse to recognize the changes in sovereignty sought by Russia, this can be considered a continuation of previous state practice. States’ reactions to sovereignty referendums contribute to the formation of customary international law standards for their conduct. Seen in this light, the referendums in Russian-occupied regions of Ukraine, rather than giving reason to question the usefulness of sovereignty referendums, reinforce the importance of upholding due process standards in their organization to ensure voters’ freedom to express their will.

Fears of disintegration

Suspicion of sovereignty referendums seems to be mainly prompted by fears that they will lead to the disintegration of the established international order. These fears are unfounded. Giving people a say in the determination of their political future need not result in instability.

First, once actually given a genuine opportunity to express their wishes, voters will often enough reject changes in sovereignty and opt for continuity instead, as shown, for instance, by the referendums held in Quebec (1995), Scotland (2014), and New Caledonia (2018/2020/2021).

Second, a successful referendum is a necessary but not a sufficient condition for reallocations of sovereignty. In addition, these also depend on the recognition by the international community. Considering the recent practice described above, one can be reasonably confident that changes in territory will only be recognized if they were approved in popular votes that were mutually agreed upon by the key actors involved in a conflict.

Third, and importantly, the democratic exercise of the right to self-determination by way of a popular vote may in fact help to defuse or even resolve long-standing conflicts. A prominent case in point are the referendums held in Northern Ireland and Ireland on the Good Friday Agreement of 1998 that were instrumental in putting an end to decades of violent conflict. Further examples that could be referred to in this context are the independence referendums in East Timor (1999), Montenegro (2006), and South Sudan (2011). What may be regarded as anecdotal evidence has recently been bolstered by political science: A study found that self-determination referendums, at least when they are mutually agreed by the relevant minority and majority groups, tend to foster peace.

Giving people a say

Many existing territorial boundaries are the product of arbitrary decisions or, worse, violence. Denying people democratic ways of challenging such boundaries, or of otherwise having a say on questions concerning sovereignty, will not prevent conflict but, on the contrary, is in many cases its very source. That those affected are involved in such decisions is what is required by the rights to self-determination and political participation. As long as it is ensured that voters can freely express their will, holding a referendum is the best way of giving people a say in sovereignty issues.

Civilians are Protected Under GC IV 1949: The Illegality of Russian Filtration Camps under IHL

This piece examines the illegality of Russian filtration camps considering International Humanitarian Law (IHL). Filtration camps are set up by Russia for Ukrainian civilians implicated in Russia’s war against Ukraine. The illegality of such camps is to be presumed in IHL rules on civilian internment contained in Geneva Convention IV 1949 (GC IV). While IHL does not contain the term filtration, this does not signify that IHL allows the setting up and existence of such camps. Although IHL permits civilian internment in times of an International Armed Conflict (IAC), it does so under very specific and protective rules set out in GC IV. This contribution argues that IHL does not allow for filtration camps. Creating and maintaining such camps cannot be justified based upon IHL.

A first question is how to define filtration. So far, what can be deduced from Russia’s practice is that filtration is a process intended to single out those civilians who can acculturate into Russian society, and remove those who won’t. This process is perilous for the life of those implicated. IHL does not allow for such a process to be inflicted upon either POWs or civilians. Civilian internment rules contained in GC IV also do not allow for torture, degrading treatment or any other form of humiliation, let alone starvation and keeping internees in inhumane conditions. Such practices also violate Article 75 on fundamental guarantees of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts 1977 (AP I). The post concludes with the assessment that Russia running such filtration camps is a grave breach of GC IV 1949.

Civilians as key targets in Russia’s war against Ukraine

According to IHL, when it comes to civilian protection, all the warring parties must ensure that the civilian population is not made the object of attacks, and acts or threats of violence that aim to spread terror among the civilian population are prohibited under IHL (see Article 51, AP I). It has been almost nine months since Russia unleashed its brutal war on Ukraine. Most civilian casualties in this war are from deliberate Russian airstrikes, targeting and destroying residential buildings in Chernihiv, Kharkiv, Kherson, Mariupol, and Kyiv (here and here). Russia has consistently targeted civilian infrastructure and essential objects for civilian survival across Ukraine, too. Water and electricity plants are intentionally destroyed by Russia, leaving the population in severe cold and without drinking water (here, here and here). Ukrainian civilians are thus a primary target of the Russian Federation (here, here and here). Russia’s actions are directly geared towards inflicting suffering on Ukrainians. Those Ukrainian civilians who happen to fall under Russian control are further subjected to Russian filtration camp procedures. It appears that the entire idea behind Russian filtration program is to discern whether Ukrainian civilians are loyal to Ukraine and to erase their Ukrainian identity. Via filtration camps Russia identifies civilians who they believe can assimilate into Russian culture and remove those who won’t.

When Russian forces invaded Ukraine this year, and started establishing control over villages and towns in eastern Ukraine in early March, it soon became known that Ukrainian civilians were forced to undergo humiliating identity checks and often violent questioning before being allowed to leave and travel to areas still under Ukrainian control – or so they assumed, because in reality at the end of the day they were sent to Russia proper. The first Report on Violations of International Humanitarian Law and Human Rights Law, War Crimes and Crimes Against Humanity Committed in Ukraine Since 24 February 2022 raised the issue of Russia forcibly deporting Ukrainian civilians into its own territory (at pp. 23–24). The follow-up second report of 14 July 2022 flags the issue of filtration. It mentions, for instance, the plight of civilians held in a tent camp in Glushkovo, Russia, and in a prison in Kursk, some 400 kilometers from the Ukrainian border. According to the report, the interviewees shared harrowing accounts of treatment, involving violence and humiliation, labelling the detention centre “a living hell” (at 24, see also at 30, at 68-70, at 107).

Russia is accused of setting up filtration camps, where Ukrainian civilians fleeing the fighting are placed in detention, subjected to torture, beatings, humiliation and are held in inhuman living conditions (here, here, here). There are reports of detainees undergoing mock-executions too. It is reported that such centers were set up across towns and villages mostly concentrated in the DNR, including Novoazovsk, Mangush, Bezimenne and Nikolske. During the UN Security Council 9126th meeting held on 7 September 2022, some country representatives expressed their concerns over accounts that the Russian Federation was detaining, processing and deporting Ukrainian men, women and children in filtration camps and detention centers.

Because IHL is regarded as a lex specialis applicable in times of armed conflicts (ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion 9 July 2004, § 106), the question is whether setting up and maintaining such facilities is in accordance with IHL rules on internment.

Russian ‘filtration’ camps are a violation of IHL rules on internment

The term “filtration” does not appear in GC IV 1949. Rules 41 to 43 as well as Rule 78 of GC IV pertaining to assigned residence and internment contain no such term. Internment and assigned residence, in turn, do not mean filtration. The commentaries to these articles offer no such suggestion. It is submitted that GC IV condones no practice of filtration, as the spirit of GC IV is based on the notion of respect for the human person and the principle of humane treatment. (B. Oswald and L. Iapichino, Treatment of Internees, in A. Clapham et al. (eds.), The 1949 Geneva Conventions Commentary (Oxford University Press, 2018) 1349-1371, at 1351)

Considering the GC IV, internment and assigned residence come forth as measures of last resort which a person protected under GC IV may be subjected to (see ICTY, Prosecutor v. Delalić et al. (Judgment), Case No IT-96-21-T, Trial Chamber 1998, §572). The internment of civilians needs to be done on an individual basis. Internment can be explained as deprivation of liberty, in contexts of armed conflicts. It can be ordered by the executive branch, without criminal charges against the internee. According to Article 42 (§1) GC IV, contained in section II, titled “Aliens in the territory of a party to the conflict”, the rule is to be applied to the own territory of the belligerent party. According to this article, the following is accepted:

“The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.”

Article 78 of GC IV, in section III titled “Occupied territories”, says that internment is possible if the occupant considers:

…it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.

The language of those two articles is not identical. Nevertheless, the commonality lies in both using a similar formulation: Article 42 contains “security of the Detaining Power makes it absolutely necessary”, Article 78 “necessary, for imperative reasons of security”. These terms are to be viewed as synonymous, requiring the person to be posing a significant danger to the “internal or external security of the detaining power that cannot be adequately addressed by less intrusive measures than his or her internment”. (N. Melzer, International Humanitarian Law, ICRC 2016, at 190)

Security concerns can be explained by instances and examples of direct participation in hostilities, assisting the enemy, membership in organizations causing disturbances, or carrying out subversive acts within the territory of the detaining power (ibid., at 190–191). The mere fact of being an enemy national cannot be regarded as a security matter or imperative reason of security (ibid.). The internment of a person should be reviewed by an appropriate court or an administrative board, and not by an individual judge or military officer (ibid., at 191). In other words, those interned should be subject to periodical review, every six months, by a competent body which should provide sufficient guarantees of impartiality, fairness, and shielding from arbitrariness. Such reviews should take place in frequent intervals to ensure that any person who does not fall in the categories of persons for internment as per IHL is released without delay (Hassan v. United Kingdom, Grand Chamber Judgment, Ap no. 29750/09 (2014) §106 and 104).

Conclusion

Russia placing civilians in filtration camps is a violation of the above-mentioned rules. Furthermore, Russia is not providing any competent and adequate periodic reviews to those protected under GC IV who are in its hands. Instead, a handful of Russian soldiers execute the so-called filtration process. Witnesses who have endured those camps detail traumatic and distressing treatments such as torture, malnutrition, humiliation and interrogations (here, here and sources above). Therefore, Russia’s filtration camps for Ukrainians are a flagrant violation of the accepted rules on internment set out by the GC IV. Filtration camps are to be considered a grave breach of Article 147 GC IV because Russia is engaged in “torture or inhuman treatment … unlawful deportation or transfer or unlawful confinement of a protected person(s)”. Running and maintaining such camps also violates Article 75 of AP I, especially §2, 3, and 6. Finally, Russia organising, administering, and continuing with the filtration camps is a war crime under Article 8 of the ICC Statute.

Image: ‘Barbed wire with wire tensioners’, by Reinhold Möller (Creative Commons Attribution-Share Alike 4.0 International).

Is there a Right to be Protected from the Adverse Effects of Scientific Progress and its Applications?

An entitlement to access the benefits of scientific progress and its applications, particularly technology, is almost certainly settled content of the right to science. It has traditionally been interpreted from Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights, but probably inheres in a broader interpretation of Article 15, particularly following General Comment No. 25 of the Committee on Economic, Social and Cultural Rights (the Committee) in 2020.

Yet, commentators seem convinced that the right to science also guarantees protection from the adverse effects of scientific progress and its applications, although it is not altogether clear why this is the case. Where does this interpretation of Article 15 come from?

It’s an important question that has received little doctrinal treatment and significant tensions in this interpretation have been overlooked and under-elaborated. For instance, if an entitlement to access the benefits of a technology exists at the same time as an entitlement to be protected from the adverse effects of that same technology, how is a conflict between those two entitlements to be resolved? We can envisage scientific progress that benefits some yet simultaneously harms others – inherent biases in algorithms, for instance; or technologies that have both benefits and adverse effects for all concerned, where some rashly preference short-term benefits over long-term harms but their choice has unavoidable effects for those that elect otherwise. Further, benefits may recede for some communities (or even global society as a whole) becoming outweighed by adverse effects, yet remain essential for others – fossil fuel needs in the developing world contrasted with their continuing impact on global climate offers a valuable lens for analysis of how nuanced such a balancing exercise would be, how complex and harrowing its ethical considerations, and how transboundary and extraterritorial considerations predominate. Finally, adverse effects may be obscured or minimised through deliberate misinformation and manipulation of scientific uncertainty to create doubt as to the need for restriction and regulation.

I suggest an entitlement to protection from adverse effects can be properly interpreted from Article 15 as a whole, but the scope of its application and the nature of the duties and obligations it creates are complex and require careful analysis if that interpretation is to be accepted and implemented.

The Provenance of Adverse Effects Protection

In the 2009 Guidelines issued by the Committee to assist States in their compliance reporting, paragraph 70 asks States parties to indicate:

a) the measures taken to ensure affordable access to the benefits of scientific progress and its applications for everyone, including disadvantaged and marginalized individuals and groups; and

b) the measures taken to prevent the use of scientific and technical progress for purposes which are contrary to the enjoyment of human dignity and human rights.

This broadly appears to correlate to Article 15(1)(b) and, alongside paragraphs 71 to 74, sets out the form of State reporting on measures adopted and the progress made in achieving observance of the right to science.

However, the formulation in paragraph 13(c) of the Venice Statement, an influential contribution to elaborating the content of the right of science, also in 2009, is “protection from abuse and adverse effects”. It is unclear if this formulation, adopted by the few commentaries that sparsely touch on this area, is coterminous with paragraph 70(b), which appears to be narrower. There may conceivably be ‘adverse effects’ that are not contrary to identifiable human rights, or even to whatever ‘human dignity’ envisages: where intergenerational equity or environmental harms are concerned, for example, ‘adverse effects’ might be preferable to the paragraph 70(b) formulation.

Most importantly, what each formulation actually entails remains underexplored. Few of the individual elements in either have been fully elaborated doctrinally. How do we define ‘use’ and by whom? Are ‘purposes’ restricted to intended or as-designed purposes, or something wider? What defines ‘adverse effects’; potential or actualised, to whom, for how long, what severity? These questions barely scratch the surface of the definitional problems.

Adverse Effects Protection and Treaty Interpretation

Above, I say ‘appears to correlate to Article 15(1)(b)’ because the Committee does not refer to its 2009 Guidelines in General Comment No. 25. This is significant because, as this article has suggested, a thorough doctrinal analysis of adverse effects protection reveals conceptual, interpretive, and implementation challenges which potentially render such an entitlement problematic.

Importantly, it is not at all clear from where the idea of ‘protection from adverse effects’ is derived. Does it come, e contrario, from an ordinary reading of Article 15(1)(b) – “the right to enjoy the benefits of scientific progress and its applications” or from a systematic and teleological interpretation that considers not only the rest of Article 15, but the entirety of both Covenants? Fully engaging with the Vienna Convention regime can lead to this interpretation, but is also open to counterarguments. Adverse effects protection might be interpreted as a limitation on scientific freedom instead (Article 15(3)) which would alter its application considerably.

General Comment No. 25 interprets “scientific progress” to include scientific knowledge which also changes the nature of adverse effects protection: conceptualised from the perspective of the ‘right to enjoy the benefits of scientific knowledge’, the entitlement must inhere also in benefitting from the purpose to which that knowledge is put. Inadequately considering scientific knowledge in policymaking might be a violation, irrespective of a requirement to demonstrate identifiable adverse effects of a given use (or abuse).

In fact, I suggest the interpretation inheres quite properly in all of the above. Unfortunately, General Comment No. 25 does not consider any of these matters directly. It does not mention its Guidelines, or the formulations set out in paragraph 70(b) and paragraph 13(c), and offers no direct guidance to States parties on how to implement obligations to protect rights holders from the adverse effects of scientific progress.

Moreover, there are concerns that the General Comment innovates too far and purports to give science itself a purpose, which it is argued was explicitly rejected by the drafters of both the UDHR and the Covenant. That purported purpose (“the development of science in the service of peace and human rights should be prioritized by States over other uses”) may bear on the legitimacy of adverse effects protection. There are powerful arguments to reject such concerns which a longer treatment could develop fully.

Doubtless there was a need to innovate in the General Comment, thanks to the paucity of State and Committee practice, and it must be viewed as intended to engender that practice, and to generate authoritative reference points for interpretive discourse, rather than the Committee’s final words on interpretation. This is particularly the case for adverse effects protection which existed conceptually long before the Venice Statement. The original 1991 Guidelines on State reporting followed a 1990 study commissioned by the United Nations Human Rights Commission (in Resolution 1986/9) on the relationship between Human Rights and Scientific and Technological Development. Put simply, the beneficial and detrimental impacts of science and technology on society have long been conceptualised as two sides of the same coin.

General Comment No. 25 and the Nucleus of a Valuable Idea

Whatever the General Comment’s weaknesses, its approach to adverse effects contains the nucleus of a valuable but underdeveloped idea. Although not explicit – it does not set out clear analysis of what ‘protection from adverse effects’ might entail in terms of Core Obligations, or in its discussion of General Obligations to Respect, Protect, and Fulfil, or as part of the Normative Content of the right; nor does it even use that terminology – the General Comment devotes an entire section to ‘Special Topics of Broad Application’. In paragraphs 53 to 57 (Participation, Transparency, and the Precautionary Principle) and paragraphs 72 to 76 (Risks and Promises of New Emerging Technologies), for instance, it sets out topics that together may represent some of the elements of adverse effects protection.

The idea the General Comment begins to develop is that adverse effects are best addressed through “a culture of active citizen engagement with science, particularly through a vigorous and informed democratic debate on the production and use of scientific knowledge, and a dialogue between the scientific community and society.” (paragraph 54, citing the Venice Statement, paras. 5(c) and (g)). Further:

“[p]articipation also includes the right to information and participation in controlling the risks involved in particular scientific processes and its applications. In this context, the precautionary principle plays an important role. … Technological and human rights impact assessments are tools that help to identify potential risks early in the process and the use of scientific applications.” (paragraph 56).

Adverse effects protection inheres in anticipation, prediction, discussion, and participation.

This approach mirrors and complements my doctoral research which seeks to elaborate, contextualise, and ameliorate the interpretive gaps, intrinsic conflicts, and exigent balancing exercises outlined above. If the right to science includes adverse effects protection, I argue, this may not inhere in restrictions on research and technology directly, but in an entitlement to contribute in an informed way to transparent public debate and to the policy-making that is derived from, and addressed to, scientific progress. Rather than requiring demonstration of particularised adverse effects, a ‘procedural’ conceptualisation of the entitlement envisages transparent and accountable review mechanisms; it asks if there has been adequate provision for discourse between all relevant and interested parties as to relevant potential consequences for existing and future rights holders; it asks whether that discourse has been properly contemplated by policymakers and whether measures taken to mitigate that risk or those harms are adequate.

This implicates relationships with other rights – in particular Articles 19 and 25 of the International Covenant on Civil and Political Rights; and other areas of international law – the precautionary principle, due diligence in the sense of transboundary harms, and intergenerational equity. It requires increased transparency of research, access to information, and perhaps most importantly, direct measures to reduce the potential for, and effectiveness of, scientific misinformation. It must function at the domestic level, but also at the international level, where the rich and fast-evolving analyses captured by global administrative law will be fundamental. International co-operation is specifically envisaged by Article 15(4).

Conclusion

A full analysis of adverse effects protection must deal with the historical context of international instruments that, although not concerned with the interpretation of the right to science directly, are nevertheless crucial in the context of adverse effects. It must fully reverse what I call the early ‘commodification’ of the right – conceptualising ‘scientific progress’ as inhering in a form of property right the ownership of which, and access to which, was the principal focus of early commentaries. While an understandable emphasis, concretising the right to entitle access to desperately needed vaccines, for example, and pushing back against intellectual property claims, normative conceptions of the right as concerning scientific knowledge, a global public good that was more than simply its applications, were marginalised.

Adverse effects protection cannot be understood purely in the sense of technologies, but in the scientific knowledge that leads to them. Benefitting from that knowledge, through identification of risks of potential harms, through discourse rights, and through policymaking that takes appropriate account of it, is what adverse effects protection is truly about.

Project 2100—Is the International Legal Order Fit for Purpose?

It is in the darkest moments that we must ask the hardest questions and peer through the gloom in an attempt to see the light.

The events to the east of us raise stark questions—about the current world order; about the place and effectiveness of the United Nations; about what the U.S. long-term assessment of global trends has called “a more contested world”.

We have become used to talking about the international legal system, about the rules-based international order.  But we are increasingly confronted with the sense that what we have is only an international order; a rules-based international system—the implicit acknowledgement being that we cannot rely on what we have known, and tried so hard to develop, maintain and advance over the past 75 or so years.

And in the shadows is a more worrying question still—certainly in the near-to-medium term but perhaps in the longer term as well. Can we conceive of a functioning multilateral, global, rules-based international order in the period to come or do we need to look to other modalities of inter-State engagement?

My response to this question is that we cannot assume a functioning multilateral, global rules-based international order in the near-to-medium term, whether as reality or as reasonable aspiration. There is no line of continuity from Bretton Woods, the Havana Charter and San Francisco that will see us, the global community, safely through to 2100­—the start of the next century.

The institutions and bedrock rules and principles that are at the heart of the international legal order that we know today—conceived in their current form in 1944-45, although rooted in 1919-22—are not fit for purpose.  When we cast our eyes to the future, as our forebears did in Versailles and San Francisco, looking to the turn of the next century, can we really say that the framework of institutions and rules and principles that we have fought to create and preserve over the past 75 and more years will see us safely through to 2100?

This is not an appreciation that arises solely from the events in Ukraine, although these events necessarily inform the analysis.

Before February 2022, the global community was facing the acute challenges of Covid. Before that, we had the global financial crisis of 2007-8. In parallel, there is the looming challenge of climate change. There are global national security threats, and more.

The international legal system has struggled to cope with these challenges. There has been affirmation, innovation and resilience.  But we are patching and re-engineering and re-upholstering a heavily worn vehicle rather than asking ourselves whether we need a more fundamental overhaul for the next leg of the journey.

To be sure, I do not mean to imply that core rules and principles and institutions should be discarded.  On the contrary, the United Nations, Article 2(4) of the UN Charter, the network of global specialised agencies and other institutions, are and will remain cornerstones of the architecture of international cooperation in the period to come.  But we need to ask more searching questions than those we have been asking to this point—and contemplate more fundamental answers.

Let me pause for a moment and focus on what is happening today in Ukraine—events that are shocking to us all, to the conscience of humanity, a body-blow to key pillars of the international legal system.

Before we ask ourselves whether the United Nations can survive, we must step back a moment and try to bring current events into wider perspective.

Ukraine is a European country.  It has a long and proud history.  In emerging from the Soviet Union, it gravitated towards the values of democracy, a free market, individual rights.  Its progress on that journey has not always been free from difficulty and challenges.  But that is the road that it chose.

Russia is a European country, at least to its west.  It has been a member of the Council of Europe.  The European historical narrative includes Russia at the heart of so many of the stories—the wars, the peace, the formulation of rules.  The St Petersburg Declaration of 1868, outlawing exploding bullets, began the quest for an international humanitarian law.

The end of the Cold War, and the collapse of the Soviet Union, in the early 1990s, ushered in a period in which the vision of the founders of the United Nations 45 years before at last came into closer focus.  The use of the veto fell.  International criminal justice became a realisable goal.  The WTO was established.  There was multilateral cooperation over the former Yugoslavia.  Shamed in Rwanda, shared efforts were made to find shared solutions.  It was not a golden age, by any means, but there was a shared commitment to multilateralism.

The Russia of Vladimir Putin stopped that train.  There were other causes, to be sure—a fracturing of consensus over Iraq amongst them—but a sense of European rapprochement and progress increasingly ground to a halt as we moved further through the 21st century, including with the Russian annexation of Crimea in 2014.  And now we have the events in Ukraine starting in February 2022.

The dismay and sorrow and anger at what we see in Ukraine today goes beyond the Russian invasion and the terrible individual atrocities.  In public discourse in the west, it is fuelled by a sense, often expressly articulated in these terms, of “how could this happen in Europe?”.  It is fuelled by a loss of innocence.  It is fuelled by a loss of virtue.  It is fuelled by an outrage that what we have built is being torn down.

I don’t know, as I am a European speaking about the vision of others, but I would wager a good deal that, viewed from the perspective of the people of Darfur, viewed from the perspective of the people of central and eastern DRC, viewed from the perspective of the Uighurs, viewed from the perspective of the down-trodden and oppressed and brutalised around the world, the questions may well be a little different.  What did the United Nations ever do for us?  Where was the rules-based international legal order when we needed it?  Where were the multilateral rules on human rights, and international humanitarian law, and international criminal accountability, when we needed saving?

And there is something in these questions.  We cannot simply look away.  We cannot simply say that we did what we could; that we tried.  We cannot simply say that we delivered humanitarian aid and worked through international institutions to try to make things better.

In Ukraine, there has been a loss of virtue; a loss of innocence—our virtue and our innocence.  The shortcomings of the system that we created, that we championed, that we have struggled to preserve, have been laid at our doorstep.

We have, though, still not quite lost our innocence, our virtue, when it comes to the looming challenges of climate change or of pandemic cooperation or of food security.  We continue to turn to multilateral rules and institutions in our search for solutions to these challenges.

And we must, because it is in such rules and institutions—shared endeavours—that lie our only hope of enduring and effective solutions.

But let us not kid ourselves that these vehicles—the institutions, rules and principles—on which we are riding into the future, are robust and nimble enough to see our children and grandchildren, and their children and grandchildren, to 2100.

There is a need for an effort of renewal and re-conception and reinvigoration.

In 2014, I published an article entitled The End of Geography: The Changing Nature of the International System and the Challenge to International Law.  The piece focused on six areas of challenge to the international system, and to international law, arising from the changing place of geography in the international system.  These were:

the international environment, shared spaces, the atmosphere, and the global commons;
the movement of people, both forcibly displaced and voluntarily migrant, and the economic and financial flows, and challenges of civil and social integration, that go with them;
the challenges to human, animal and plant life and health, and to global food security, that comes from a growing and already massively interdependent world and the migratory movements of both people and animals;
the enormous and increasing growth in global trade and financial flows and the symbiotic interconnectedness, and potential for systemic vulnerability, of the global economic system;
the dramatic increase in the global use of the electromagnetic sphere and the practical challenges and risks, and opportunities, that this presents; and
the transboundary challenges to security that arise from the activities of non-State actors that operate across boundaries and beyond the control of States.

Faced with these challenges, I suggested areas that were ripe for reform, to better equip the rules-based international system to address the challenges faced by the international system, including:

international institutional reform—in the areas of representation, decision-making, accountability, and focus [on international dispute settlement reform, see further here];
reconceiving notions of jurisdiction—who is entitled to regulate what, where and how;
law-making and legal reform—law-making, though treaties and custom, is egregiously cumbersome. There are no adequate rules of change.  We struggle often with a dead-hand on the law-making tiller, and with debates about what the relevant and applicable international law is rather than only about its interpretation and application to the facts;
the subjects of international law—States are increasingly only the intermediaries of private transactions of transboundary character rather than principal actors in their own right. But the law only addresses private actors inadequately and peripherally;
the sources of international law—the need to reconceive the sources of international law to better address the challenges of law-making, legal reform and the subjects of international law.

These are big challenges—and we do not as yet even have a shared view of the problem.

In a piece that will be published shortly, written with Don McRae [at chapter 41], we address some of the deeply-rooted shortcomings of the international trading system: unfairness and disparities with respect to developing countries; the fracturing of multilateral rules by regional blocs; the limitations and fault-lines increasingly evident in the philosophy underpinning the rules; sectoral issues; the challenges that come with a more contested world.

In this area too we cannot rest on the achievements of the past—the current rules, the current philosophy underpinning them, the current workings of the institutions we have, will not carry us, and those who follow us, happily into the future.

The events in Ukraine, the rise of China, the fracturing of American democracy and leadership, the indecision and bureaucracy of Europe, the growth of the disaffected and displaced and deprived of the world, pose huge challenges going forward.

And the bigger question, with which I began, remains—in a multipolar world, in a more contested world—is there a place for multilateral solutions?  Is there a multilateral vision that is likely to be workable in the near-to-medium term?

I hope so—because it is only in the truly multilateral that solutions will be found to many of the common challenges that we face, climate change being the standout, but not the only, example.

But, and it is a big but, we cannot rely on the multilateral.  We need also to conceive of, and take forward, a workable model of variable geometry where we do multilaterally what can be done multilaterally but are also prepared—proactively, not simply as a last resort—to do regionally or bilaterally or thematically or sectorally what can be done by such means, even if the effect of such action may only be to move the issue partway forward.  A highly contested multipolar world is going to require different tools to address global challenges.

Let me conclude with some thoughts about the United Nations.

The events in Ukraine have laid bare the effectiveness, or ineffectiveness, of the Security Council to address threats such as those posed by Russia.  These threats and challenges are not new, but they have come into sharper focus.

Anyone who has watched the debates in the Security Council over the past few months will have come away profoundly disturbed and depressed.

It is a saving grace—a small but nonetheless important saving grace—that the Council has at least been a forum and a pulpit for shining a light on what has been happening.  As the motto of the Washington Post reminds us: Democracy Dies in Darkness.

But we need to redouble our efforts to reform the United Nations.  It is not just the Security Council, and the use of the veto, that is in need of reform.  It is the attitude of those who sit in that chamber—exercising a sacred trust—that needs to change.

And it is also the Purposes and the Principles of the Organisation that warrant scrutiny.  Article 2(4) of the Charter, prohibiting the threat or use of force, is and must continue to be a cornerstone of a rules-based international system going forward, but it is not enough.  Article 2(4) is the provision that links 1945 to 2022, but new threats and challenges also need to be placed firmly on the Council’s agenda.

These remarks are not intended to depress.  Law—international law—is operational, but it is also strategic.  It is about the way in which we choose to organise and regulate our society into the future.

Legislative moments do not only emerge in moments of calm.  They also emerge from trauma—the League of Nations, the United Nations, the Permanent Court and the International Court of Justice, the Geneva Conventions, the Universal Declaration of Human Rights, and more.  But for there to be change, for there to be evolution, there needs first to be vision—a vision that lifts the gaze beyond tomorrow or the day after or the year after that, to the longer-term.

International policymakers, international strategists, international lawyers, need a Project 2100—something to challenge us into a longer-term vision for our world and the world of our children.

On Binaries, Blind Spots, and Shades of Gray: The UN Report on LGBQ+ Persons in Armed Conflict

“I’d prefer it if you shoot me in the head.”

These were the words of a young gay man in Syria in 2015 who knew his fate was to be thrown from the roof of a high-rise building after being convicted by ISIS for sodomy. The persecution, targeting and rape of lesbian, gay, bisexual, trans, queer and plus (LGBTQ+) persons in some provinces in Colombia was systematic and, often, part of a tactic of social control. In 2017, in the Eastern parts of Ukraine, LGBTQ+ persons have been persecuted and forced to flee their homes and in 2022 there have also been reports of Ukrainian transgender women who have been prohibited to leave their war-torn country during martial law as they were marked as men. In other conflicts and situations of violence, including in Yemen, Libya, Myanmar and Afghanistan, LGBTQ+ persons have been subjected to rape and other forms of gender-based violence.

These and many other examples could be marshalled to illustrate that LGBTQ+ persons are deliberately targeted in armed conflict. But does the current global governance regime have the necessary tools to prevent, or properly respond to, such violence and discrimination?

A new UN report grapples with this question and sheds some light on what appear to be some blind spots and shades of grey in a number of international legal and policy frameworks regarding the protection of LGBTQ+ persons in armed conflict. On 28 October 2022, the UN Independent Expert Sexual Orientation and Gender Identity (IESOGI), Victor Madrigal-Borloz, the current mandate holder and a Senior Visiting Researcher with the Human Rights Program at Harvard Law School, presented this report to the General Assembly at its 77th session. The IESOGI concludes that the current international regime is not effective in the face of the continued failure of states and non-state actors to fully protect LGBTQ+ persons during armed conflict.

In this post, we will explore some of the salient issues raised in the report, expand upon them, and probe some areas for improvement in the field of IHL, in particular regarding Common Article 3 of the Geneva Conventions and IHL special protections.  

Seeking nuance inside an evidentiary blind spot

While each armed conflict presents its own peculiarities, the invocation and exacerbation of pre-existing prejudices, and the rise of violence that distinctively, and in some contexts disproportionately, affects LGBTQ+ persons is becoming increasingly noticeable. However, it is also becoming clear that it is difficult to document and investigate violence motivated by sexual orientation and gender identity (SOGI).

Whereas the IESOGI report seeks to fill a gap by introducing a new surge of empirical evidence on the gendered dimension of violence in contexts of conflict (para. 1), an undertaking that is supported through the findings of UN fact-finding missions or commissions of inquiry (e.g., Yemen and Libya) and through input from civil society, states and UN agencies, one of its findings is that this is a field in which there is much ground to cover. As a whole, the report stands inside of and highlights an evidentiary blind spot when it comes to documenting the impacts of armed conflict on LGBTQ+ persons. How can one comprehensively gather evidence of violations and abuses against LGBTQ+ individuals in countries torn by conflict where practices based on SOGI were criminalized or even punished with the death penalty before conflict the erupted?  Can this be done without exposing LGBTQ+ individuals, who often cannot find safety in their communities and closed circles due to societal prejudice and stigma, to new risks and violations?

The IESOGI identifies one specific area in the international policy framework which, if reformed, could prove to diminish this evidentiary blind spot and corresponding implementational modalities. In this vein, the IESOGI report gives special attention binary and heteronormative nuances reflected in the UN’s “women, peace and security architecture” established under the UN Security Council resolution 1325 (2000). The report’s critical valuation of the UNSCR 1325 regime and its implementation in domestic law (paras.27-36) laments the exclusion of LGBTQ+ individuals when it utilizes a narrow understanding of gender in terms of sex, for instance “using the expressions women and gender interchangeably” (para. 33). This leaves the international institutions dealing with conflict incapable of fully capturing the complexities of armed conflict, thereby making the global regime ill-equipped to provide appropriate responses to conflict and violence.

LGBTQ+ invisibility: Lost in the shades of grey of Common Article 3

One of the overarching conclusions of the IESOGI report is that international humanitarian law (IHL) “seems to fall behind in recognizing the differentiated experiences that people endure in conflict based on gender and sexuality” (para.7). IHL lays out a binary construct that may have been contributing to the creation and deepening of implementation gaps regarding the protection of LGBTQ+ persons in armed conflict—thereby leading to the reduction of their protection on the ground.

Although a close analysis of Common Article 3 of the Geneva Conventions was not the focus of the IESOGI report, this provision offers a good example of how the protection of LGBTQ+ persons can be hampered by their invisibility even though the law may, in theory, afford them protections. Common Article 3 obliges parties to a conflict to treat persons humanely “without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” SOGI are not included expressly as a ground for protection under Common Article 3.

This ‘indirect’ type of protection does not happen exclusively in IHL. The prohibitions of discrimination provided in international and regional human rights instruments, such as the ICESCR, ICCPR, and the American, African, European regional treaties, contain similar wording that does not expressly mention SOGI. However, international human rights law has been progressively incorporating SOGI as grounds for protection. This has been happening both through soft-law developments, such as the Yogyakarta Principles and the YP+10, and through an interpretative process carried out by judicial and quasi-judicial bodies. The ground-breaking decision Toonen v. Australia by the UN Human Rights Committee back in 1994 and the 2006 NGO Forum v. Zimbabwe decision of the African Commission on Human and People’s Rights are good examples. A more recent addition, Rojas Marín v. Peru, issued by the Inter-American Court of Human Rights in 2020, has pushed the boundaries of protection by developing the concept of violencia por prejuicio (“violence motivated by prejudice”) and expanding the purposive element of torture to include discrimination based on SOGI. Since the entirety of international human rights law does not cease to apply in armed conflict, these interpretations and progressive developments should provide some protection to LGBTIQ+ persons during armed conflict.

One of the differences between international human rights law and IHL regarding LGBTQ+ protection is that there has not yet been any formal interpretative process of IHL provisions (p. 13), in particular of Common Article 3, by international adjudicative bodies clarifying that SOGI is included in the non-exhaustive lists of grounds for protection under non-discrimination provisions. It is, therefore, unfortunate that the ICRC, given its role in promoting progressive developments in IHL,  has missed the opportunity to interpret Common Article 3, or other IHL non-discrimination provisions, in a way that expressly includes SOGI as grounds for protection. For instance, the ICRC’s  Commentary to the Geneva Conventions for Common Article 3, only contains a footnote which mentions the Humanitarian Charter as a text that includes SOGI as grounds protected from discrimination, and only regarding the right to receive humanitarian assistance.

Paradoxically, very recently, in June 2022, the ICRC published the “Gendered impacts of armed conflicts and implications for the application of IHL” claiming that proactive clarification is needed:

Sexual orientation and gender identity are not grounds for exclusion from IHL’s category-based protections. At times, this protection has been overlooked or misinterpreted – it is an example where the ICRC’s silence has been perceived by some as the view that IHL excludes these individuals from protection, and this merits proactive clarification that all persons are protected under the relevant group categories. In other words, gender-neutral protections should be actively clarified to be gender-inclusive so as to deepen the application of existing protections (p. 37).

IHL’s special protections: Another shade of grey?

Some room for improvement in IHL may lay in the fact that it does not provide special protection for LGBTQ+ persons, as it does for other groups, such as women, children, old people, workers, the sick and wounded. These groups are granted special legal protection because IHL recognizes that they are exposed to higher risks and vulnerabilities, or because conflict impacts them in distinctive ways. For example, IHL not only grants specific protections to women who are prisoners of war, or to women who are pregnant or nursing, but also to workers, protecting them in particular from the artificial creation of unemployment or underemployment by occupying powers. Notably, while the protections of women have a broader historical basis, the protection of workers under Article 52 of Geneva Convention IV developed, in part, as a response to certain measures taken by occupying powers during the Second World War.

Similar to the IESOGI report which notes that LGBTQ+ persons are distinctively, and in some contexts also disproportionately, affected by conflict-related violence on the basis of SOGI, the ICRC also acknowledges that sexual and gender minorities face much higher rates of sexual violence compared to the general population of incarcerated persons. It seems, then, that LGBTQ+ persons may prove to be in the next candidates for inclusion in ‘special protected person lists’ in future reformulations and restatements of IHL. Such progressive developments may not, at least in the short term, lead to immediate compliance. They will, however, make IHL more reflective of the realities of war and bring light to a minority group that is suffering behind multiple shades of invisibility.

Conclusion – the wound is where light enters

In a poem in which he likens the unilluminated heart to a wound, Rumi points out that one cannot see the ugliness of one’s wound. The IESOGI report, limited as it is to 10,700 words as per the UN Editorial Manual, can be compared to Rumi’s skilled healer who helps shine light on some of the global governance regime’s blind spots and shades of grey. The report can, however, only briefly shine a faint light on the most important issues.

In this post we have shed additional light on LGBTQ+ invisibility in the context of Common Article 3 and the exclusion of LGBTQ+ persons from special legal protections. We invite others to delve into the details of many of the issues raised with a view to responding to the call to heal the wound of the many who are suffering in the shadows of impunity.

The Gender of Treaty Withdrawal: Lessons from the Istanbul Convention

In the early hours of 20 March 2021 the Turkish Official Gazette announced—in a one sentence statement that offered no explanation—that the President Erdoğan had decided to withdraw from the Istanbul Convention, the Council of Europe treaty on preventing and combating violence against women. Two days later, the Communication Directorate of the President offered this justification: “The Istanbul Convention, originally intended to promote women’s rights, was hijacked by a group of people attempting to normalize homosexuality – which is incompatible with Türkiye’s social and family values.” The precipitous and unexpected unilateral presidential decision at the start of a weekend triggered outrage, protests, and litigation by women’s rights groups in Turkey. Outside of the country, the response by the organs and member states of the Council of Europe was mostly handwringing and commiseration—but no meaningful challenge to the denunciation’s legality.

This post evaluates the responses to the nearly unprecedented exit from a major European regional human rights agreement, one that establishes comprehensive legal standards to effectively implement women’s right to be free from violence by building on existing legal obligations of non-discrimination in other international instruments, in particular the European Convention on Human Rights (Article 14 and Protocol No. 12) and CEDAW. We argue that the Council of Europe’s legal position—that nothing could be done to counter Turkey’s precipitous action—was and is not a persuasive interpretation of positive international law. Instead, this position reflects the orthodox “consensual view” that unilateral treaty withdrawals—including from human rights conventions—are sovereign decisions that are not subject to any meaningful international legal scrutiny.

The post highlights two other approaches to evaluating exit from human rights treaties—namely, the “lex specialis” view and the “gendered” view—that the Council of Europe could have pursued as a matter of positive international legal doctrine. Our analysis is timely, since future potential withdrawals loom large, not only from the Istanbul Convention (which Poland is now considering), but also from the European Convention on Human Rights (a possibility being debated in the UK).

In what follows, we first explain how the Council’s response to Turkey’s withdrawal from the Istanbul Convention reinforced the consensual view of treaty exit, missing an opportunity to develop the distinctive understanding of human rights agreements that the ECtHR and other international courts have developed and that states have subsequently followed. We then analyze other legal doctrines and sources that would have supported either a lex specialis or a gendered view of positive international law—approaches that would have enabled a more robust challenge to Turkey’s problematic action.

The Council of Europe chooses the consensual view of treaty withdrawal

The immediate aftermath of Erdoğan’s announcement was replete with expressions of disappointment but devoid of legal objections. On 21 March 2021, the Chair of the Council of Europe’s Committee of Ministers and the President of the Parliamentary Assembly expressed deep regret about “the decision of the President of Turkey to withdraw from this Convention widely supported in the country, without any parliamentary debate.” The Council’s Secretary General characterized the withdrawal as “devastating news” and “a huge setback” for “the protection of women in Turkey, across Europe and beyond.” National political leaders also deplored the decision and expressed their support for the Convention.

In April 2021, the Parliamentary Assembly of the Council of Europe (PACE) linked the denunciation to ongoing debates about the decline of democratic institutions in Turkey. PACE Resolution 2376 highlighted two especially problematic aspects of the decision: the lack of any parliamentary debate and basing the decision on “misleading narratives” and “politically motivated misconceptions and myths” that “run counter to the very objective of the Istanbul Convention”—an implicit reference to the justification quoted in the first paragraph of this essay. Characterizing “the ratification and denunciation of treaties are a matter of national sovereignty,” the resolution nevertheless invited the Venice Commission—the Council of Europe’s advisory body on constitutional matters relating to democracy, human rights and the rule of law—“to prepare a comparative study and possible guidelines” on the standards that should govern joining and leaving Council of Europe conventions “beyond the minimal legal and constitutional conditions.”

The Venice Commission published its ninety page report “On the Domestic Procedures of Ratification and Denunciation of Treaties” in April 2022. The report reviewed the domestic legal frameworks for ratification and denunciation in Europe and elsewhere. It found that various forms of parliamentary involvement are required for both acts in 29 out of 47 Council of Europe member states and is compulsory only for joining treaties in 18 states. The report ultimately concluded that although involving national parliaments in treaty withdrawals was normatively desirable, it was not (yet) required by positive international law (see paras. 287-291).

The reactions of the Council of Europe’s institutions, its member states, and the Venice Commission reinforced the traditional, consensual view of treaty withdrawal under international law. This approach has three main features.

First, it conceptualizes withdrawal as a right of sovereign states. Because states enter into treaties only with their express consent, they are presumptively free to leave treaties by withdrawing that consent. Under this view, the type of treaty from which a state withdraws, its reasons for doing so (or the lack thereof), and the government actor(s) who carry out the withdrawal are all legally irrelevant.

Second, the international validity of withdrawal under the consensual view turns on whether a state has respected any restrictions included in the treaty itself, such as time limits specified in a denunciation clause. The legal basis for this is Article 54(a) of the Vienna Convention on the Law of Treaties (VCLT)—a provision also regarded as codifying customary international law—which provides that “the withdrawal of a party may take place … in conformity with the provisions of the treaty.” In the case of the Istanbul Convention, for example, a party may denounce the treaty “at any time” simply by notifying the Secretary General of the Council of Europe. The withdrawal does not take effect, however, until approximately three months after the notification is received. The Convention contains no other substantive or procedural restrictions on unilateral exit.

Third, the consensual view focuses only on what is communicated on the international plane. It does not assess whether the actor that initiates the withdrawal has the authority to do so. Even if, for example, the executive flouts a constitutional mandate that parliament approve a treaty withdrawal, this has no effect on the legality of the denunciation under international law. In the case of the Istanbul Convention, domestic litigation challenging the constitutionality of Turkey’s withdrawal did not stop the clock on the notice period at the international level. The Council of Europe thus officially removed Turkey as a state party on July 1, 2021, even though more than 220 domestic suits asserting the illegality of Erdoğan’s action were (and are) pending.

The consensual view also helps to explain the collective statements of commiseration that followed Turkey’s withdrawal. Under the consensual view, if a state communicates its withdrawal in a procedurally proper manner—even from a human rights treaty—not much can be done but expressing feelings of sadness, regret or outrage.

In its April 2022 report, the Venice Commission, too, found that international law’s hands were tied. The Commission first investigated whether the consensual view’s indifference to the domestic procedures followed for exiting treaties had been modified through customary international law. It did so by head-counting how each country’s law regulates withdrawal. This simple head count, curiously, placed Turkey in the group that does not require parliamentary involvement, despite strongly reasoned objections from leading constitutional law experts and pending litigation before Supreme Administrative Court as to whether the Turkish Constitution requires the Parliament to approve withdrawal from a human rights convention. The report identified a “clear trend” toward parliamentary involvement—reflected in 62% of Council of Europe member states (29 out of 47 countries)—but no binding regional custom “which demands that a state’s legislature is involved in the denunciation of an international treaty” (para. 287). The report thus concluded that “the question … remains one within the sphere of domestic political preference, and international law leaves this choice to the sovereign discretion of each individual state” (para. 291).

The Venice Commission then explained that the trend toward greater parliamentary involvement is normatively desirable to promote democracy, human rights, and the rule of law. But the Commission said nothing about whether international law should recognize the unilateral decision of a president or prime minister to denounce a human rights treaty in violation of a domestic law requirement of parliamentary involvement or approval.

The road not taken: Special rules for human rights treaty withdrawals  

The Council of Europe could have taken a very different view of positive international law. In particular, it could have followed the path seminally trod by the ECtHR (and followed by regional human rights courts in Americas and Africa and UN treaty bodies) that have developed specialized interpretive canons and doctrines for human rights conventions. The core of this lex specialis approach is that these conventions “come with the presumption that protection of human rights has priority to sovereign rights,” a presumption that creates affects numerous areas of treaty law and practice, including reservations, interpretation, implementation, and enforcement.   

Whilst the ECtHR and the former European Commission on Human Rights have led the way in developing the lex specialis view since the 1960s, the fullest expression of this approach as applied to treaty withdrawal appears in a 2020 Advisory Opinion of the Inter-American Court of Human Rights (IACtHR). In its detailed analysis of the obligations of states that have denounced human rights conventions adopted by the Organization of American States (OAS), the IACtHR reiterated the established lex specialis view that human rights treaties are distinct from other international agreements. They not only create horizontal promises between states but also vertical obligations between governments and individuals (para. 51), who are “in an asymmetrical position in relation to the power of the State” and thus require special protection (para. 58). Human rights treaties also imply a “collective guarantee” of the “internationalization, codification and progressive development of” fundamental rights (para. 53).

These principles, according to the IACtHR, limit a state’s power to exit from human rights conventions, including treaties on violence against women. International law is not, under the lex specialis approach, confined to assessing whether a state has satisfied the minimal procedural requirements in a treaty’s denunciation clause. Nor is international law indifferent to the domestic procedures governing withdrawal. The IACtHR, like the Venice Commission two years later, surveyed OAS member states and tallied which branches of government participate in treaty withdrawals in each country. But unlike the Commission, the Court did not view the diversity of state practice as a constraint on what positive international law requires. Instead, the IACtHR held that:

regardless of the different domestic procedures for denouncing treaties in the region, the denunciation of a human right treaty … must be subject to a pluralistic, public and transparent debate within the States, as it is a matter of great public interest because it implies a possible curtailment of rights and, in turn, of access to international justice (para. 64).

Further, the Court concluded that the regional human rights system’s collective guarantee requires both OAS institutions and member states to take “swift, collective action to address possible denunciations,” and to “contain a government’s impulse to extricate itself from its international human rights obligations” (paras. 170, 171). Such actions include a review of “the context and formal conditions in which the decision to denounce is taken at the domestic level and its correspondence with the established constitutional procedures” as well as “an assessment of the democratic nature of the decision” (paras. 171, 172). In sum, the IACtHR did not—in striking contrast to the Venice Commission—posit an artificial distinction between positive law and normative desirability; instead, it employed well established canons of treaty interpretation under Article 31 of the VCTL to ground the lex specialis approach to human rights treaty withdrawal.

Consider how the Council of Europe could have responded to Turkey’s denunciation of the Istanbul Convention under the lex specialis view. The Council’s organs and member states, acting both individually and collectively, could have challenged the Turkish President’s action as legally suspect on multiple grounds: the sudden, non-deliberative nature of the decision; the lack of notice to or consultation with—let alone approval of—the Parliament; and the domestic outrage and litigation by women’s rights groups. Such a forceful and multifaceted response might have led Erdoğan to reconsider his precipitous act. If it did not, the Council of Europe Secretariat could, with the support of other member states, have cited the pending domestic court challenges in Turkey to freeze the three-month notification period until the domestic legal system delivered a final determination as to the constitutionality of the withdrawal.

Gendering human rights treaty withdrawal

In addition to ignoring lex specialis rules for human rights treaty law, the Council of Europe also failed to consider the gendered and manifestly discriminatory dimensions of Turkey’s withdrawal—an act in blatant disregard of important equality gains under both treaties and customary international law. Here too, an alternative path was readily available but inexplicably overlooked: the response of the CEDAW Committee.

In a statement issued on 01 July 2021, the CEDAW Committee considered the legal basis and the practical impact of Turkey’s action. In its legal assessment, the Committee linked the withdrawal from the Istanbul Convention to the UN women’s rights treaty. It characterized the denunciation as “a deliberately retrogressive measure” that was “inconsistent with Turkey’s due diligence obligation under” CEDAW to prevent and protect women and girls from violence. But the act of “disengaging from its international commitments” went further, “undermin[ing] the recognition of peremptory norms of international law (jus cogens) such as the prohibition of torture, femicide and other grievous forms of [gender-based violence], as well as the guarantees of substantive equality and non-discrimination.”

The CEDAW Committee also underscored the real-world harms of Turkey’s action. The treaty body had previously sounded the alarm about increased levels of gender-based violence during the COVID-19 pandemic; Turkey’s denunciation had “the potential to deepen th[at] protection gap ….” In addition, the Committee asserted that the withdrawal had no “valid ground [or] justification”—a statement echoing the Parliamentary Assembly’s earlier reference to the “politically motivated misconceptions and myths” that motivated the decision. Taken together, the legal deficiencies and practical consequences led the treaty body to take a step that the Council of Europe had not: urging Turkey to reconsider “as a matter of highest priority” its decision to leave the Istanbul Convention.

The CEDAW Committee’s analysis reveals that a gendered objection to withdrawing from a human rights treaty goes deeper than challenging the lack of parliamentary deliberation or approval. It underscores the peremptory status of gender discrimination and reinforces efforts to move positive international human rights law away from consensual frameworks and toward the peremptory status of non-discrimination in international law. Under this approach, the act of stripping human rights from women—especially by male Presidents and male-dominated parliaments—requires, at the very least, heightened interrogation.

A gendered view also requires scrutinizing not only whose rights are taken away but for what reasons. Turkey justified its withdrawal from the Istanbul Convention using hostile rhetoric against LGBTQ individuals, as shown by the Communication Directorate statement quoted above. Yet as civil society groups and scholars have documented, authoritarian and populist politicians often mischaracterize “efforts to expand rights for women and LGBTQ people as radical, dangerous impositions designed to eliminate all sex differences.” This dual targeting, often made under the banner of “gender ideology,” is part of broader campaigns to roll back human rights protections for minorities, weaken democratic institutions, and undermine the rule of law.

Seen from this perspective, a treaty withdrawal that undermines not only the peremptory norm of non-discrimination but also challenges the rights of LGBTQ individuals to live as equal members of society should have led the Council of Europe to consider whether Turkey acted in bad faith. Yet the gendered consequences of the withdrawal are strikingly absent from the Venice Commission’s report—not only in its narrow view of positive international law, but also in its recommendations for how international norms should evolve in the future. The report argues for norms that strengthen democracy, human rights, and rule of law, but the consequences for women and the LGBTQ community—more than half of a country’s citizens—are left entirely out of the picture.

Conclusion: Rethinking the positive law of treaty withdrawal

Our analysis of international legal doctrine shows that the Council of Europe provided a politically tepid and legally inadequate response to Turkey’s withdrawal from the Istanbul Convention. The Venice Commission, well known for its defence of constitutionalism, the rule of law and fundamental rights, offered an especially disappointing report that entirely overlooked the lex specialis and gendered approaches to scrutinizing unilateral exit from human rights conventions under international law.

In this response, we have shown that one does not need to be orthodox consensualist to offer a positivist analysis of human rights treaty withdrawal. We have mapped two alternative legal pathways, one of which the Council of Europe could—and should—have pursued. These alternatives draw upon the sustained practices of global and regional human rights systems and peremptory status of non-discrimination under general international law.  In these challenging times, marked by credible threats to exit the human rights treaties of the Council of Europe, the orthodox consensual view—that human rights treaty withdrawals are carried out at the whim of domestic political leaders and all but immune from international scrutiny—needs to be reconsidered and challenged, not reaffirmed.