EVAN J. CRIDDLE*

Abstract

Within the past year, members of Congress have introduced nearly a dozen bills to make Russia pay for its military aggression against Ukraine. This Essay argues that none of the bills are satisfactory because they would either violate international law or fail to deliver meaningful compensation to Ukraine. Instead, the Essay urges policymakers to use economic sanctions as leverage to compel Russia to make reparations through an international claims-settlement process.

Introduction

When Russia invaded Ukraine in February 2022, the international community launched a vigorous counteroffensive without firing a shot. Over thirty States imposed economic sanctions against Russia, including sweeping asset freezes, import bans, export controls, and investment restrictions.^[1] Russia lost access to nearly half of its central bank reserves, valued at roughly $300 billion,^[2] as well as its $10 billion sovereign direct investment fund.^[3] Foreign regulators targeted Russian officials and oligarch-allies of the Kremlin, seizing mega-yachts, helicopters, real estate, and artwork worth tens of billions of dollars, and blocking hundreds of millions of dollars in private bank accounts.^[4] These measures delivered a heavy blow to the Russian economy, but they failed to achieve their primary purpose: compelling Russian President Vladimir Putin to call off his ruinous “special military operation.”^[5] Rather than back down, Putin pressed forward with a brutal campaign that systematically reduced Ukrainian cities to rubble.

As this tragedy was unfolding, international observers began to inquire whether economic sanctions, which have failed so spectacularly to curb Russian aggression,^[6] might be repurposed to alleviate suffering in Ukraine. Some commentators urged the United States and its allies to confiscate and transfer Russia’s frozen assets to Ukraine as humanitarian aid.^[7] Others proposed using frozen assets to bankroll Ukraine’s national defense or to promote reconstruction after the war.^[8] Each of these suggestions found supporters in Congress, generating a flurry of bills to unlock Russia’s frozen assets for Ukraine’s benefit.

Part I of this Essay sorts through these legislative proposals to expose their legal and practical deficiencies. Most of these proposals would authorize the Executive Branch to confiscate Russian assets, violating international investment law and triggering duties of repayment under the Takings Clause of the Fifth Amendment and customary international law.^[9] Some members of Congress have called for abolishing Russia’s sovereign immunity as a way to deliver financial assistance to Ukraine,^[10] but this would violate the United States’ obligations under customary international law. Congress could authorize the forfeiture of private Russian assets linked to public corruption or other criminal activities, as some policymakers have proposed,^[11] but those assets are insufficient to bankroll Ukraine’s reconstruction. Thus, none of the bills introduced in Congress would secure substantial reparations for Ukraine while also respecting the rule of international law.

Part II outlines a better strategy for leveraging Russia’s frozen assets to secure reparations for Ukraine. Under international law, the United States and its allies may use asset freezes, trade and investment restrictions, and other economic sanctions to compel Russia to compensate Ukraine for the harm produced by its illegal invasion. The greater the injuries caused by Russian attacks, the greater Russia’s legal obligation to compensate Ukraine at the end of the war. For this strategy to work, however, the United States and its partners must remain patient and resolute, keeping Russian assets on ice and refusing to lift other sanctions until Russia compensates Ukraine. While this strategy will take time to bear fruit, it is realistic to expect that it will generate substantial (if imperfect) compensation for Ukraine without undermining international law.

I. Legislative Proposals

Russian aggression has inflicted catastrophic destruction and suffering in Ukraine. Missile and artillery strikes, aerial bombardment, and kamikaze drone attacks have devastated major cities, including Kharkiv, Kherson, Kyiv, Mariupol, and Severodonesk, inflicting trillions of dollars in damage.^[12] Thousands of Ukrainians have perished, many as victims of Russian war crimes.^[13] Many more have suffered serious mistreatment, including torture, at the hands of Russia’s military.^[14] Given the scale and gravity of these harms and Ukraine’s urgent need for financial assistance, it makes sense that sympathetic policymakers in the United States would explore every option to make Russia “pay a heavy price” for its aggression in Ukraine.^[15]

Unfortunately, recent congressional proposals to hold Russia financially accountable for its aggression have serious flaws. Nearly all of the bills proposed to date raise serious constitutional concerns, and most would violate the United States’ obligations under international law. Others are too limited in scope to move the needle on Ukraine’s relief and reconstruction.

Confiscation

In the first weeks of Russia’s invasion of Ukraine, members of Congress circulated a series of bills to empower President Biden to confiscate Russia’s frozen assets for the benefit of Ukraine. “Confiscation,” for these purposes, refers to extinguishing a party’s legal interests in assets and vesting title in the U.S. government.^[16] Authorizing the Executive Branch to confiscate Russia’s frozen assets could make hundreds of billions of dollars available to Ukraine, bolstering its national defense, alleviating suffering, and advancing its eventual reconstruction after the war.

Federal legislation does not currently allow the Executive Branch to confiscate Russian assets. The International Emergency Economic Powers Act (IEEPA) does empower the President to block transactions involving foreign assets during a national emergency,^[17] and President Biden has used this authority to immobilize Russian assets in the United States.^[18] However, IEEPA does not permit the Executive Branch to confiscate foreign assets unless the United States “is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals.”^[19] Thus far, these prerequisites for asset confiscation are not satisfied: the United States has not suffered an “attack” from Russia within the meaning of the IEEPA,^[20] and President Biden has declared that the United States “will not be directly engaged” in Ukraine’s self-defense “either by sending American troops to fight in Ukraine or by attacking Russian forces.”^[21] In recognition of these limitations, Treasury Secretary Janet Yellen has emphasized that confiscating Russian assets is “not something that is legally permissible in the United States.”^[22] IEEPA does not allow the Executive Branch to confiscate and transfer Russian assets to Ukraine.

Several bills would alter the status quo by empowering the President to confiscate Russia’s frozen assets.^[23] A representative example is the Asset Seizure for Ukraine Reconstruction Act (ASURA), introduced by Senator Sheldon Whitehouse and several colleagues.^[24] This draft legislation would empower the President to confiscate assets “valued in excess of $2,000,000” that are subject to U.S. sanctions based on “corruption, human rights violations, the malign influence of the Russian Federation, or conflicts in Ukraine.”^[25] Confiscated assets would “vest in the Government of the United States,” after which they could be liquidated or sold for Ukraine’s benefit.^[26]

ASURA quickly attracted constitutional objections. The American Civil Liberties Union (ACLU) argued that the bill would violate the Fifth Amendment’s Due Process Clause because it did not afford an opportunity for foreign asset holders to challenge confiscations in court.^[27] In response to this concern, Representatives Tom Malinowski and eighteen co-sponsors proposed a watered down version of ASURA in the House of Representatives.^[28] The House version does not purport to expand the President’s confiscation authority but instead merely expresses the “sense of Congress” that “[t]he President should take all constitutional steps to seize and confiscate assets . . . of foreign persons whose wealth is derived in part through corruption linked to or political support for the regime of Russian President Vladimir Putin.”^[29]

Even setting aside due process objections to ASURA, there are reasons to question whether Congress can and should authorize the President to confiscate Russian assets. For example, confiscating assets from Russia—a nominally “friendly” foreign power—without compensation would violate the Takings Clause, as the Supreme Court held nearly a century ago in Russian Volunteer Fleet v. United States.^[30] Thus, even if Congress were to expand the President’s statutory authority to confiscate Russian assets, the Constitution would prevent the President from using this authority to take Russian assets without compensation.

Confiscating Russian assets would also violate international law. Under customary norms of international investment law, the wholesale confiscation of Russian assets would constitute a wrongful expropriation, triggering a duty of compensation.^[31] If the United States unilaterally confiscated Russia’s frozen assets for Ukraine’s benefit, therefore, Russia could claim a right to reimbursement under international law.^[32]

Neither the Senate nor the House version of ASURA is currently on track to become law, and that is almost certainly for the best.^[33] As noted, the Senate version is unconstitutional and would violate the United States’ obligations under international law. The House version avoids these pitfalls, but only because it does not grant any new powers to the Executive Branch. Under both versions, the President is unable to confiscate Russia’s frozen assets without leading the United States into combat—a step that the White House has firmly ruled out. Thus, neither version of ASURA offers a workable solution for delivering financial assistance to Ukraine.

Forfeiture

Another option for unlocking Russia’s frozen wealth is asset forfeiture. Under current federal law, asset forfeiture takes three forms. First, some federal criminal statutes, such as the Racketeering Influenced and Corrupt Organizations Act (RICO), authorize the federal government to initiate in personam actions for criminal forfeiture of property connected to various illegal activities.^[34] Second, the federal government may seek civil forfeiture of property linked to certain designated crimes, such as embezzlement and money laundering, through in rem civil actions.^[35] Third, under the Tariff Act of 1930, the federal government may initiate administrative forfeiture proceedings in rem against certain types of personal property that have been seized under U.S. customs laws, including a “vessel, vehicle, aircraft, merchandise, or baggage” valued at $500,000 or less.^[36] Together, these three avenues for asset forfeiture offer opportunities for the Executive Branch to harvest the ill-gotten gains of Russian oligarchs and corrupt politicians for Ukraine’s benefit.

Recognizing the potential of asset forfeiture, the Biden administration in April 2022 proposed a “comprehensive legislative package” to “establish new authorities for the forfeiture of property linked to Russian kleptocracy.”^[37] The White House proposal would establish “a new, streamlined administrative process,” backstopped by expedited judicial review, to facilitate the administrative forfeiture of private assets belonging to sanctioned Russian nationals which are related to specified unlawful conduct.^[38] The White House plan would also facilitate criminal forfeiture by expanding RICO’s definition of “racketeering” to include sanctions evasion and by “making it unlawful for any person to knowingly or intentionally possess proceeds directly obtained from corrupt dealings with the Russian government.”^[39] Forfeited assets would then be earmarked “to remediate harms of Russian aggression toward Ukraine.”^[40] Several Senators have endorsed the White House plan and are collaborating across the political aisle to develop draft legislation that would expand the administration’s authority to pursue forfeiture against private Russian assets.^[41]

Expanding domestic forfeiture law in these ways could unlock hundreds of millions of dollars for Ukraine’s benefit,^[42] but Congress must first resolve some significant legal issues.^[43] As Professor Paul Stephan has observed, the White House proposal raises several due process concerns.^[44] First, applying new forfeiture legislation retroactively to Russian assets seized at the beginning of the war might infringe the Fifth Amendment’s Due Process Clause.^[45] Second, due process might also require that federal agencies strengthen procedural safeguards by giving foreign asset-holders individualized notice of forfeiture proceedings.^[46] Third, applying forfeiture to conduct that bears no meaningful connection to the United States might implicate due process concerns to the extent that it would extend the reach of U.S. law to transactions with no meaningful contact to the United States.^[47] If Congress wants to prevent Russia from challenging the White House plan successfully in court, any legislation it enacts must attend to these constitutional concerns.

Even if Congress manages to pass new legislation expanding the federal government’s forfeiture powers, this victory would be little more than symbolic when assessed against the backdrop of Russia’s financial accountability for the war in Ukraine. The harm Ukraine has suffered from Russian attacks—whether measured in lives lost, property damage, or the disruption of economic activity—is many orders of magnitude greater than the value of the yachts, planes, real estate, and other private assets that the United States and its partners have seized from Russian elites. The only way to make significant headway on Russia’s financial obligations to Ukraine would be to tap Russia’s massive central bank reserves and sovereign wealth funds. Yet, the White House’s “comprehensive legislative package” for asset forfeiture would not leave those sovereign assets untouched. Any serious effort to make Russia pay for Ukraine must therefore venture beyond asset forfeiture to find mechanisms for accessing Russia’s sovereign wealth.

Abrogating Sovereign Immunity

With these concerns in mind, some commentators have called for Congress to abrogate Russia’s immunity from civil litigation in domestic courts.^[48] At present, the Foreign Sovereign Immunity Act (FSIA) does not permit aggrieved parties to bring civil actions against foreign States, much less to execute judgments against foreign central bank reserves, based on injuries suffered in armed conflicts.^[49] This means that the federal government may not pursue forfeiture against Russia’s sovereign assets, and Ukrainian plaintiffs cannot sue Russia in U.S. courts for injuries caused by Russian attacks.^[50] If Congress were to eliminate Russia’s sovereign immunity under the FSIA, this would establish a powerful new mechanism to make Russia pay for its aggression against Ukraine.

Representatives Debbie Dingell and Fred Upton have introduced legislation to make this idea a reality. Their proposed Ukrainian Sovereignty Act would eliminate sovereign immunity for civil actions seeking money damages “for physical injury, including death, property damage, or loss of property caused by [a] foreign state’s invasion of another sovereign nation located in Europe . . . by or at the direction of the foreign state,” provided that the invasion was condemned by the U.N. General Assembly and both chambers of Congress.^[51] The Ukrainian Sovereignty Act also provides that the sovereign assets of an aggressor State—including central bank reserves—“shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by [an American] court.”^[52] These provisions would clear the way under domestic law for Ukrainian civilians to sue Russia in U.S. courts.^[53]

Whether the Ukrainian Sovereignty Act would pass muster under international law is another matter. In an influential 2012 judgment, Jurisdictional Immunities of the State, the International Court of Justice (ICJ) declared that customary international law entitles States to immunity from civil litigation in foreign courts for claims arising from war-related injuries.^[54] In particular, the ICJ held that war crimes committed by German armed forces against Italian civilians during World War II were covered by sovereign immunity because they involved the exercise of sovereign powers (acta jure imperii), rather than commercial activities (acta jure gestionis).^[55] According to the ICJ, sovereign immunity barred litigation in Italian courts as a threshold matter even if Germany’s war crimes violated peremptory norms of general international law (jus cogens).^[56] Although the ICJ’s opinion remains controversial^[57] and lacks the formal status of binding precedent under international law,^[58] it shapes how international lawyers understand the customary international law of State immunities today.^[59]

The ICJ’s analysis in the Jurisdiction Immunities case suggests that Russia also enjoys sovereign immunity in U.S. courts. Russia’s aggression, however contemptible, is a military campaign that entails the exercise of sovereign powers. Russia has not waived its sovereign immunity, nor is it likely to do so. Although Russia’s armed attacks violate jus cogensnorms, including the prohibitions of aggression, war crimes, and crimes against humanity, this would not diminish Russia’s immunity from litigation in foreign courts under the ICJ’s reading of customary international law. Consequently, if Congress were to abrogate Russia’s sovereign immunity, it could set the United States on a course to violate international law. If the United States wants to deliver the message that international law—including the prohibition against aggression, which Russia has so flagrantly violated— is worthy of respect, it would be a mistake for Congress to disregard Russia’s sovereign immunity under international law.

Members of Congress deserve praise for exploring every option to hold Russia accountable financially for its aggression in Ukraine. Russia’s brazen violation of Ukraine’s sovereign rights cries out for robust remedies. In the final analysis, however, there is little that Congress can do to hold Russia accountable within the constraints imposed by the Constitution and international law. Congress may strengthen the federal government’s authority to compel the forfeiture of private Russian assets, but this would produce only a tiny fraction of the funds needed for Ukraine’s relief and reconstruction. When it comes to Russia’s central bank reserves and other sovereign assets, the Constitution and international law afford Congress little room to maneuver. Thus, if U.S. policymakers want to make Russia pay for its war crimes in Ukraine, they would do well to look for solutions outside Congress.

II. How To Make Russia Pay

Fortunately, there is another way that the United States and its partners can make Russia pay for Ukraine: they can use asset freezes, trade restrictions, and other economic sanctions as leverage to compel Russia to deliver war reparations through an international claims-settlement mechanism. Unlike the flashy legislative proposals that have dominated public debates since the outset of the war, a strategy based on multilateral economic coercion could eventually succeed in delivering significant reparations to Ukraine without violating the Constitution and international law.

Russia’s Responsibility To Make Reparation

As a first step, the United States and its partners should put Russia on notice that it bears financial responsibility under international law for the catastrophic harm it has caused in Ukraine. An “essential principle” of international law is that every internationally wrongful act triggers a duty to provide “reparation.”^[60] As the Permanent Court of Justice explained in the Chorzów Factory case, this “reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”^[61] When restitution in kind is not possible or would be insufficient to compensate an injured State for their loss, international law requires the “payment of a sum corresponding to the value which a restitution in kind would bear” plus “damages for loss sustained which would not be covered by restitution in kind or payment in place of it.”^[62]  Since Russia’s invasion into Ukraine constitutes a manifest violation of the U.N. Charter,^[63] there can be no serious question that Russia bears responsibility under international law to compensate Ukraine in full for the grave injuries produced by its armed attacks. Ideally, the United States and its partners would seek additional resolutions from international institutions, such as the U.N. General Assembly, condemning Russia’s aggression and affirming Russia’s obligation to make full reparation to Ukraine.

Economic Sanctions as Countermeasures

Next, the United States and its partners should make clear that they are using asset freezes and other economic sanctions as countermeasures to compel Russia to satisfy its responsibility to compensate Ukraine.

Under international law, a “countermeasure” is an “act of non-compliance, by a State, with its obligations owed to another State,” taken “in response to a prior breach of international law by that other State and aimed at inducing it to respect its obligations.”^[64] To be permissible under international law, countermeasures may only be used to induce a recalcitrant State to comply with its international obligations.^[65] Moreover, countermeasures must, “as far as possible, be taken in such a way” that they can be reversed as soon as the recalcitrant State has resumed compliance with international law.^[66] States therefore may not use countermeasures to confiscate foreign assets, because this would result in a permanent deprivation.^[67] Instead, when a State freezes or seizes foreign property as a countermeasure, it must preserve the property so that the property can be returned intact when countermeasures end.

Ordinarily, only a State that has suffered injury from a breach of international law may use countermeasures against a responsible State. When an “obligation breached is owed to the international community as a whole” (erga omnes), however, any State may use countermeasures to compel “cessation of the internationally wrongful act” and “performance of the obligation of reparation . . . in the interest of the injured State or of the beneficiaries of the obligation breached.”^[68]

These features of international law would support efforts by the United States and its partners to use economic sanctions as countermeasures against Russia. Russia’s aggression in Ukraine violates an obligation erga omnes—the bedrock legal requirement to refrain from “the threat or use of force against the territorial integrity or political independence of any State.”^[69] In addition to the original act of invasion, Russia’s war crimes and crimes against humanity in Ukraine also violate obligations erga omnes.^[70] Accordingly, all States are entitled under international law to demand that Russia cease its belligerent conduct and make reparations, including though the payment of compensation.^[71] States may also use asset freezes, trade restrictions, and other economic sanctions as countermeasures to compel Russia to compensate Ukraine for its injuries.^[72] Although the United States and its partners may not confiscate Russian assets as a countermeasure,^[73] nothing would prevent them under international law from maintaining asset freezes for as long as it takes to convince Russia to compensate Ukraine.

The Long Road to Reparations

International economic sanctions rarely succeed in persuading States to call off armed conflict,^[74] so it should come as no surprise that asset freezes and other economic sanctions have not yet convinced Putin to pull out of Ukraine. This does not mean that economic sanctions cannot persuade Russia to provide redress after the war. In the past, the international community has used economic sanctions successfully on a number of occasions to make uncooperative States disgorge reparations. For instance, following the 1991 Gulf War, Iraq provided compensation to Kuwait through the U.N. Compensation Commission (UNCC) in exchange for relief from international economic sanctions.^[75] Similarly, in 2003, Libya abandoned its nuclear aspirations, dismantled its missile and chemical weapons programs, and compensated terrorism victims in return for sanctions relief.^[76] These examples demonstrate that economic sanctions can be powerful tools for extracting reparation even from rogue States ruled by obstinate autocrats.

Applying this strategy to Russia might seem unpromising because its success would depend on Putin’s willingness to make concessions in exchange for easing sanctions. Putin has staked his political reputation on thumbing his nose at foreign adversaries, such as the European Union and the United States. All signs suggest that he is settling in for a long campaign in Ukraine, wagering on Russia’s ability to outlast Ukrainian resistance and international outrage.^[77] Putin might win this bet; with energy prices surging and with weak Ukrainian grain exports threatening global food supplies,^[78] it is unclear how long world leaders will be able to sustain, let alone ratchet up, economic sanctions against Russia. Trade and investment restrictions are a double-edged sword, inflicting economic pain not only on Russia, but also on the European Union, the United States, and the broader global economy. Over time, economic and political pressures are likely to limit how long the United States and its partners can maintain costly trade and investment restrictions.

Even so, time is not necessarily on Putin’s side. As long as economic sanctions remain in place, Russia will find it difficult to promote economic growth, attract foreign capital, maintain liquidity, and buffer its economy against currency volatility. Moreover, as far as asset freezes are concerned, the United States and its partners can afford to be patient. Preventing Russia from accessing its frozen central bank reserves and other sovereign wealth imposes minimal costs on the United States and its partners. There is no way Russia can recover its sovereign assets and the frozen wealth of its ruling elite without cooperation from the United States and its partners. Hence, if Russia wants to reclaim any of its frozen assets, it will have no choice but to meet sanctioning States at the negotiation table. If history is any guide, Russia will eventually accept a deal on war reparations in exchange for normalizing trade relations, unblocking private assets, and reclaiming some portion of its sovereign wealth. When that day arrives, a comprehensive negotiated settlement on reparations could unlock a substantial percentage of Russia’s frozen assets for Ukraine’s reconstruction.

There are a variety of models for how Russian assets could be dispersed to the Ukrainian government and Ukrainian nationals. Russia could make a lump sum payment to Ukraine to resolve all war-related claims, perhaps paid in part from central bank reserves and other assets currently locked in offshore accounts. Russia and Ukraine could establish a bilateral claims-settlement body akin to the Iran-U.S. Claims Tribunal, which handled expropriation claims arising from the Iran Hostage Crisis.^[79] The United Nations could revive the recently shuttered UNCC to handle Ukrainian claims against Russia.^[80] Each of these models would present daunting administrative challenges.^[81] Those responsible for distributing reparations would have to take care to allocate funds prudently, efficiently, and equitably to advance relief and reconstruction while avoiding institutional corruption and weeding out fraudulent claims. Ultimately, however, all of these approaches offer practical mechanisms for delivering reparations to Ukraine.

Pending a comprehensive settlement on war reparations, the United States and its partners can leverage Russia’s frozen assets to assist Ukraine in other ways. Some U.S. officials have called for a new “Marshall Plan” to support Ukraine through international loans and other financial assistance.^[82] Were this proposal to become a reality, the United States could condition financial assistance on Ukraine’s agreement to repay international loans using Russian reparations. This debt repayment strategy could help to defuse domestic political opposition to international development assistance, while also strengthening the resolve of the United States and its partners to keep sanctions in place until Russia eventually relents on war reparations.

Conclusion

Congress’s problematic proposals to convert Russia’s frozen assets into reparations for Ukraine should serve as a cautionary tale about the legal limits of economic sanctions. Both domestic constitutional law and international law constrain how the United States may handle frozen assets. When deployed as countermeasures, asset freezes may be used only for limited purposes under international law. States may not use confiscate foreign assets, nor may they abrogate foreign sovereign immunity through asset forfeiture or civil litigation in domestic courts.

If Congress were to proceed down one of those legally proscribed paths, as some members of Congress have proposed, the costs for the United States would be high. Confiscating Russian assets or abrogating Russia’s sovereign immunity would undermine international norms that safeguard trillions of dollars in U.S. direct foreign investment abroad, potentially inviting retaliation from Russia and setting a dangerous precedent for future international disputes.^[83] These measures may also discourage foreign direct investment in the United States, threaten the dollar’s pole position as a favored currency for foreign central bank reserves, and weaken the United States’ ability to use economic sanctions to influence other States’ behavior in future crises. Moreover, responding to Russian aggression with illegal expropriations would play into Putin’s hands by eroding the rules-based international order. It would add fuel to Putin’s argument that Russia’s adversaries have equally dirty hands, so there is no meaningful difference between Russia’s “special military operation” and the sanctions other States have levied in response. The United States and its partners need not play into this false narrative. By adhering strictly to the law of countermeasures, they can compel Russia to compensate Ukraine while also upholding the rule of international law.

So far, the Biden administration has adhered to this playbook.^[84] The Treasury Department has kept Russia’s sovereign assets on ice, while the Department of Justice has sought opportunities to target Russian oligarchs for criminal, civil, and administrative forfeiture based on their personal criminal activities. These measures might appear feeble and ineffective in comparison to Putin’s ruthless military campaign, but it is still too early to assess their full impact. Viewed on a longer time horizon, the economic sanctions against Russia are laying the groundwork for a negotiated endgame in which Russia will pay dearly for its aggression—likely using assets that are currently frozen around the world. In the meantime, Congress would be wise to hold the course, resisting the temptation to enact hasty statutory shortcuts that would violate the Constitution and international law.

[*] Ernest W. Goodrich Professor, William & Mary Law School. This essay has benefited from conversation with Scott Anderson, Chimène Keitner, and Paul Stephan, as well as workshop participants at William & Mary Law School.

[1] See U.S. Dep’t of the Treasury, Treasury Prohibits Transactions with the Central Bank of Russia and Imposes Sanctions on Key Sources of Russia’s Wealth, (Feb. 28, 2022), https://home.treasury.gov/news/press-releases/jy0612; Elena Chachko & J. Benton Heath, A Watershed Moment for Sanctions? Russia, Ukraine, and the Economic Battlefield, 116 Am. J. Int’l L. Unbound 135, 135-36 (2022).

[2] New Financial and Trade Sanctions Against Russia, Cong. Res. Serv. (Mar. 17, 2022), https://crsreports.congress.gov/product/pdf/IF/IF12062#:~:text=Tightening%20Financial%20Sanctions.&text=3771%3B%20H.R.,entities%20incorporated%20in%20Russia%20(H.R..

[3] John Hyatt, How Putin Used Russia’s Sovereign Wealth Fund to Create a “State-Sponsored Oligarchy,” Forbes, Mar. 8, 2022, https://www.forbes.com/sites/johnhyatt/2022/03/08/sanctions-on-russian-fund-show-dashed-hope-of-moscows-cooperation-with-democracies/?sh=1a90fb99a431. 

[4] Fact Sheet: President Biden’s Comprehensive Proposal to Hold Russian Oligarchs and Elites Accountable, White House (Apr. 28, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/28/fact-sheet-president-bidens-comprehensive-proposal-to-hold-russian-oligarchs-accountable/ [hereinafter Biden Proposal].

[5] Andrew Osborn & Polina Nikolskaya, Russia’s Putin Authorizes ‘Special Military Operation’ Against Ukraine, Reuters (Feb. 24, 2022), https://www.reuters.com/world/europe/russias-putin-authorises-military-operations-donbass-domestic-media-2022-02-24/.

[6] Before Russia’s 2022 full-scale invasion of Ukraine, economic sanctions also failed to persuade Russia to withdraw from Crimea, which it had seized in 2014. See Anders Åslund & Maria Snegovaya, The Impact of Western Sanctions on Russia and How They Can Be Made Even More Effective (Atlantic Council 2021), https://www.atlanticcouncil.org/wp-content/uploads/2021/05/The-impact-of-Western-sanctions-on-Russia-and-how-they-can-be-made-even-more-effective-5.2.pdf (observing that “Western sanctions have not succeeded in forcing the Kremlin to fully reverse its actions and end aggression in Ukraine”).

[7] E.g., Simon Johnson & Oleg Ustenko, A Basic Income for Ukrainians, Paid for with Frozen Russian Assets, Politico (Mar. 2, 2022), https://www.politico.com/news/magazine/2022/03/02/frozen-russian-assets-humanitarian-relief-00013286.

[8] E.g., Laurence H. Tribe, “Does American Law Currently Authorize the President to Seize Sovereign Russian Assets?,” Lawfare, May 23, 2022, https://www.lawfareblog.com/does-american-law-currently-authorize-president-seize-sovereign-russian-assets; Philip Zelikow & Simon Johnson, How Ukraine Can Build Back Better: Use the Kremlin’s Seized Assets to Pay for Reconstruction, Foreign Aff. (Apr. 19, 2022), https://www.foreignaffairs.com/articles/ukraine/2022-04-19/how-ukraine-can-build-back-better.

[9] See Asset Seizure for Ukraine Reconstruction Act § 2(1), H.R. 6930, 117th Cong. (Apr. 28, 2022) [hereinafter House ASURA]; Asset Seizure for Ukraine Reconstruction Act, S. 3838, 117th Cong. (2022) [hereinafter Senate ASURA]; Oligarch Asset Forfeiture Act, H.R. 7086, 117th Cong. (2022); Make Russia Pay Act, H.R. 7083, 117th Cong. (2022); Repurposing Elite Luxuries into Emergency Funds for Ukraine Act, H.R. 7596, 117th Cong. (2022); Yachts for Ukraine Act, H.R. 7187, 117th Cong. (2022).

[10] See Ukrainian Sovereignty Act, H.R. 7205, 117th Cong. (2022).

[11] See Confiscating Corrupt Criminal Proceeds Act of 2022, H.R. 7015, 117th Cong. (2022).

[12] Paola Tamma, Payback Time: The West Studies How To Make Russia Foot the War Bill, Politico (Apr. 12, 2022), https://www.politico.eu/article/payback-time-west-make-russia-pay-war-ukraine-bill/.

[13] Ukraine: Civilian Casualty Update 27 June 2022, U.N. Office of the High Commissioner for Human Rights, June 27, 2022, https://www.ohchr.org/en/news/2022/06/ukraine-civilian-casualty-update-27-june-2022.

[14] Id.

[15] Remarks by President Joe Biden on the Assistance the United States Is Providing to Ukraine, White House, Mar. 16, 2022, https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/03/16/remarks-by-president-biden-on-the-assistance-the-united-states-is-providing-to-ukraine/.

[16] Cf. United Nations Convention Against Transnational Organized Crime art. 2(g), G.A. Res. 55/25, U.N. GAOR, 55th Sess, U.N. Doc. A/RES/55/25 (2001). (defining “confiscation” as “permanent deprivation of property by order of a court or other competent authority”).

[17] 50 U.S.C. § 1702(a)(1)(B) (2001).

[18] Fact Sheet: United States, G7 and EU Impose Severe and Immediate Costs on Russia, White House, Apr. 6, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/06/fact-sheet-united-states-g7-and-eu-impose-severe-and-immediate-costs-on-russia/.

[19] 50 U.S.C. § 1702(a)(1)(C); see also Trading With the Enemy Act of 1917, 40 Stat. 411, as amended 50 U.S.C. § 4305(b)(1) (providing that “[d]uring the time of war the President may” order the confiscation of enemy assets to “vest . . . in the interest of and for the benefit of the United States”); Scott R. Anderson & Chimène Keitner, The Legal Challenges Presented by Seizing Frozen Russian Assets, Lawfare (May 26, 2022), https://www.lawfareblog.com/legal-challenges-presented-seizing-frozen-russian-assets (explaining why the IEEPA does not permit confiscating Russia’s frozen assets).

[20] See Paul B. Stephan, Seizing Russian Assets, 17 Capital Mkts. L.J. (forthcoming). But see Tribe, supra note 7 (arguing that Russian cyberattacks should be considered sufficient to permit asset confiscation under IEEPA).

[21] Joseph R. Biden, Jr., What America Will and Will Not Do in Ukraine, N.Y. Times, (May 31, 2022), https://www.nytimes.com/2022/05/31/opinion/biden-ukraine-strategy.html.

[22] Transcript of Press Conference from Secretary of the Treasury Janet L. Yellen in Bonn, Germany (May 18, 2022), https://home.treasury.gov/news/press-releases/jy0793.

[23] See sources cited supra note 8.

[24] Senate ASURA, supra note 8.

[25] Id. § 2(a)-(b).

[26] Id. § 2(c).

[27] See Jeff Stein, ACLU Helped Defeat Plan To Seize Russian Oligarchs’ Funds for Ukraine, Wash. Post (Apr. 8, 2022), https://www.washingtonpost.com/us-policy/2022/04/08/aclu-ukraine-russia-oligarchs/ (discussing the ACLU’s pushback against the Senate’s ASURA).

[28] House ASURA, supra note 8.

[29] Id. § 2(2).

[30] See 282 U.S. 481, 491-92 (1931). In contrast, Congress may authorize the confiscation of “enemy” property without compensation during armed conflict. United States v. Chemical Foundation, 272 U.S. 1, 11 (1926).

[31] See G.A. Declaration on the Human Rights of Individuals Who Are Not Nationals of the Countries in Which They Live, A/RES/40/144, 13 Dec. 1985, Art. 9 (“No alien shall be arbitrarily deprived of his or her lawfully acquired assets.”).

[32] See Articles on Responsibility of States for Internationally Wrongful Acts art. 31, U.N. Doc. A/56/10, GAOR, 56th Sess., Supp. No. 10 (2001) [hereinafter ARSIWA] (“The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”).

[33] The House bill sailed through the House in a near-unanimous vote, only to languish in the Senate Foreign Relations Committee. See All Actions H.R. 6930—117th Cong. (2021-2022), https://www.congress.gov/bill/117th-congress/house-bill/6930/all-actions. The Senate version never made it out of the Senate Committee on Banking, Housing, and Urban Affairs. See Action Overview S.3838—117th Cong. (2021-2022), https://www.congress.gov/bill/117th-congress/senate-bill/3838/actions.

[34] 18 U.S.C. § 982 (2016).

[35] Id. §§ 981, 983-85.

[36] 19 U.S.C. §§ 1905-09; see generally Types of Federal Forfeiture, U.S. Dep’t of Justice, https://www.justice.gov/afms/types-federal-forfeiture#:~:text=Description,part%20of%20the%20defendant’s%20sentence (discussing these three varieties of forfeiture).

[37] Biden Proposal, supra note 4.

[38] Id.

[39] Id.

[40] Id. Consistent with the White House proposal, Representative Tim Burchett has introduced a bill in the House to encourage the use of civil forfeiture to strip assets from Belorussian and Russian nationals to fund humanitarian relief in Ukraine. See Confiscating Corrupt Criminal Proceeds Act of 2022, H.R. 7015, 117th Cong. (2022).

[41] See KleptoCapture: Aiding Ukraine Through Forfeiture of Russian Oligarchs’ Illicit Assets, Senate Judiciary Committee Hearing (July 19, 2022), https://www.judiciary.senate.gov/meetings/kleptocapture-aiding-ukraine-through-forfeiture-of-russian-oligarchs-illicit-assets (discussing these efforts).  

[42] Time will tell to what extent federal agencies will be able to establish the factual predicate for criminal, civil, or administrative forfeiture by connecting specific Russian assets to illegal activities in the United States or abroad.

[43] See Rishi Batra, Resolving Civil Forfeiture Disputes, 66 U. Kansas L. Rev. 399, 409-10 (2017) (observing that victim compensation is a traditional objective of civil forfeiture law).

[44] Statement of Paul B. Stephan, University of Virginia School of Law, Before a Hearing of the Senate Judiciary Committee on KleptoCapture: Aiding Ukraine through Forfeiture of Russian Oligarchs’ Illicit Assets, on July 19, 2022, at 5-12, https://www.judiciary.senate.gov/imo/media/doc/Testimony%20-%20Stephan%20-%202022-07-19.pdf.

[45] Id. at 6-8 (discussing the Supreme Court’s retroactivity analysis in Landgraf v. USI Film Prod., 511 U.S. 244, 267 (1994)).

[46] See id. at 11-12 (discussing this concern).

[47] See id. at 9 (expressing concern that expanding liability under the Foreign Corrupt Practices Act to transactions without substantial contacts to the United States would constitute an assertion of “universal jurisdiction over bribery and related corruption” everywhere in the world); see generally Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law, 48 Harv. Int’l L.J. 121, 123 (2007) (explaining how “constitutional limits—most notably those contained in the Fifth Amendment’s Due Process Clause— . . . restrict the ability of the United States to apply extraterritorially . . . U.S. code provisions outlawing conduct that is not subject to universal jurisdiction under international law”).

[48] See, e.g., Tim Hutchinson et al., How the US Can Make Russia Pay Ukrainians for Destroying their Country, CNN (Apr. 11, 2022), https://www.cnn.com/2022/04/11/opinions/ukraine-russia-monetary-damages-legislation/index.html.

[49] 28 U.S.C. §§ 1604-05. For an illuminating discussion of the FSIA’s application to frozen Russian assets, see Ingrid Wuerth, Does Foreign Sovereign Immunity Apply to Sanctions on Central Banks?, Lawfare, Mar. 7, 2022, https://www.lawfareblog.com/does-foreign-sovereign-immunity-apply-sanctions-central-banks.

[50] The FSIA does not bar plaintiffs from bringing civil actions against individual Russian officials or oligarchs, but some Russian officials could claim immunity ratione personae for their involvement in the Ukraine invasion. See Chanka Wickremasinghe, Immunities Enjoyed by Officials of States and International Organizations, in International Law 349, 362-69 (Malcolm Evans ed., 5th ed. 2018) (discussing these features of foreign official immunity under international law).

[51] Ukrainian Sovereignty Act, supra note 9, § 2(a).

[52] Id. § 2(b).

[53] The Biden administration would also have to permit individual claimants to access frozen Russian assets for the satisfaction of judgments, rather than keep them blocked to maintain leverage for future negotiations with Russia.

[54] Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), 2012 ICJ Rep. 99.

[55] Id. at 125, ¶ 60.

[56] Id. at 134-35, 140-42, ¶¶ 77, 92-97.

[57] See Simoncioni v. Repubblica Federale di Germania, Corte cost., 22 ottobre 2014 n. 238, Gazzetta Ufficiale [G.U.] (ser. spec.) n. 45, 29 ottobre 2014, I, 1, http://gazzettaaufficiale.it, translated at http://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S238_2013_en.pdf (declining to follow the Jurisdictional Immunities judgment); Claire E.M. Jervis, Jurisdictional Immunities Revisited: An Analysis of the Procedure Substance Distinction in International Law, 30 Eur. J. Int’l L. 105, 105 (2019) (critiquing the ICJ’s “sclerotic approach to the interaction between substantive and procedural law in the Jurisdictional Immunities case”); Kimberley N. Trapp & Alex Mills, Smooth Runs the Water Where the Brook Is Deep: The Obscured Complexities of Germany v. Italy, 1 Cambridge J. Int’l & Comp. L. 153 (2012) (exploring alternative approaches the Court could have taken to deciding the case).

[58] See Statute of the International Court of Justice art. 59 (“The decision of the Court has no binding force except between the parties and in respect of the particular case.”).

[59] See, e.g., Monica Hakimi, Constructing an International Community, 111 Am. J. Int’l L. 317, 334 (2017) (“The ICJ’s jurisprudence . . . limits the authority of international or national courts to enforce jus cogens norms.”).

[60] Factory at Chorzów (Pol. v. F.R.G.), 1928 P.C.I.J. (ser. A.) No. 17 (Sept. 13), at 47.

[61] Id.

[62] Id.

[63] See Aggression Against Ukraine, G.A. Res. A/RES/ES-11/1, Mar. 2, 2022, https://unwatch.org/wp-content/uploads/2022/05/A_RES_ES-11_1-EN.pdf (deploring “in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter”).

[64] Christian J. Tams, Enforcing Obligations Erga Omnes in International Law 20 (2005); see also Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports (1997) 1, ¶¶ 82-87; Air Services Agreement Case (France v. United States), 18 RIAA 416, ¶ 83 (1978); ARSIWA, supra note 32, ch. V (discussing circumstances precluding wrongfulness generally).

[65] ARSIWA, supra note 32, art. 49(1) (“An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations . . . .”).

[66] Id. art. 49(3).

[67] See Elizabeth Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures 15 (1984).

[68] Id. art. 48(1)-(2); see also Martin Dawidowicz, Public Law Enforcement Without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and Their Relationship to the UN Security Council, 77 Brit. Y.B. Int’l L. 333 (2007) (arguing that customary international law authorizes these “collective countermeasures”); Evan J. Criddle, Standing for Human Rights Abroad, 100 Cornell L. Rev. 269, 297-332 (2015) (explaining how States may apply countermeasures in the interests of foreign “beneficiaries”).

[69] U.N. Charter art. 2(4).

[70] See Barcelona Traction, Light & Power Co. (Belg. V. Spain), 1970 I.C.J. Rep. 3, 32, ¶¶ 33–34 (Feb. 5) (characterizing the prohibitions against aggression and genocide and “the principles and rules concerning the basic rights of the human person” as “obligations erga omnes”).

[71] See U.N. High Commissioner for Human Rights, Thematic Study of the Office of the United Nations High Commissioner for Human Rights on the Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights, Including Recommendations Aimed at Ending Such Measures, 7–8 ¶ 22, U.N. Doc. A/HRC/19/33 (Jan. 11, 2012), available at http://www.ohchr.org/ Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-33_en.pdf (“Where human rights or other obligations owed to the international community as a whole (obligations erga omnes) are concerned, any State may take lawful measures against the State that breached the said erga omnes obligation . . . .”); Mary Ellen O’Connell, The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement 245 (2008) (“[T]he weight of opinion supports the right of states to take countermeasures in cases of erga omnes obligations with a jus cogens character.”); Tams, supra note 58, at 249–51 (“[I]ndividual States are entitled to take countermeasures in response to systematic or large-scale breaches of obligations erga omnes.”).

[72] See Omer Yousif Elegab, The Legality of Non-forcible Counter-measures in International Law 64-65 (1988) (explaining that countermeasures may be used to seek compensation for internationally wrongful acts).

[73] See id. at 111 (“[N]o form of confiscatory expropriation will be acceptable as counter-measures.”); David J. Bederman, Counterintuiting Countermeasures, 96 Am. J. Int’l L. 817, 824 (2002) (“Whatever countermeasure a state selects has to be capable of being reversed.”); Evan Criddle, Rebuilding Ukraine Will Be Costly. Here’s How to Make Putin Pay., Politico, Mar. 30, 2022, (explaining that this principle applies to frozen Russian assets); Paul Stephan, Response to Philip Zelikow: Confiscating Russian Assets and the Law, Lawfare, May 13, 2022 (explaining why states under international law may seize, but not confiscate, foreign state assets under the international law of countermeasures). But see Philip Zelikow, A Legal Approach to the Transfer of Russian Assets to Rebuild Ukraine, Lawfare, May 12, 2022 (arguing that asset confiscation would be a lawful countermeasure).

[74] See Gary Clyde Hufbauer et al., Economic Sanctions Reconsidered 10 (3d ed. 2007) (finding that “most attempts at altering military adventures [through sanctions] have not been successful”).

[75] See Lea Brilmayer, Understanding “IMCCs”: Compensation and Closure in the Formation and Function of International Mass Claims Commissions, 43 Yale J. Int’l L. 273, 297-98 (2018).

[76] See Jonathan B. Schwartz, Dealing with a “Rogue State”: The Libya Precedent, 101 Am. J. Int’l L. 553 (2007) (discussing negotiations leading to this result).

[77] See Catherine Belton, Putin Thinks West Will Blink First in War of Attrition, Russian Elites Say, Wash. Post (June 3, 2022), https://www.washingtonpost.com/world/2022/06/03/russia-putin-economy-attrition-war/.

[78] See European Council, Infographic – Ukrainian Grain Exports Explained, https://www.consilium.europa.eu/en/infographics/ukrainian-grain-exports-explained/ (last visited Dec. 30, 2022) (explaining that Russian aggression has disrupted Ukrainian grain exports and impacted global grain prices); European Parliament, Briefing: Economic Repercussions of Russia’s War on Ukraine – Weekly Digest (Dec. 20. 2022), https://www.europarl.europa.eu/RegData/etudes/BRIE/2022/733754/IPOL_BRI(2022)733754_EN.pdf (discussing economic pressures on European countries resulting from regional sanctions against Russian oil and natural gas).

[79] See Brilmayer, supra note 68, at 296-97.

[80] See id. at 297-98.

[81] For example, if Russia were to make a lump sum payment to Ukraine, Ukraine would have to decide how to allocate these funds to ameliorate suffering and promote reconstruction. This might include establishing an institutional mechanism at the national level to distribute reparations directly to private claimants. Alternatively, Russia and Ukraine could establish an international claim-settlement mechanism, such as a bilateral claims-settlement body. In either scenario, the vast number of potential claimants would present enormous administrative challenges.

[82] See Kate Connolly, Pete Buttigieg Calls for a New Marshall Plan to Rebuild Ukraine, Guardian (May 24, 2022), https://www.theguardian.com/world/2022/may/20/pete-buttigieg-says-us-backs-new-marshall-plan-to-rebuild-ukraine.

[83] See Bureau of Economic Analysis, Direct Investment by Country and Industry, 2020, https://www.bea.gov/news/2021/direct-investment-country-and-industry-2020 (noting $6.15 trillion in U.S. direct investment abroad at the end of 2020).

[84] See Readout of Russian Elites, Proxies, and Oligarchs (REPO) Task Force Deputies Meeting, U.S. Dep’t of Justice, Sept. 30, 2022, https://www.justice.gov/opa/pr/readout-russian-elites-proxies-and-oligarchs-repo-task-force-deputies-meeting (“Together with our partners, the steps we have taken so far have immobilized Russian assets as one of several means to induce Russia to come into compliance with its international law obligations, including the obligation to pay reparations.”).

Image credit: chuttersnap, CC0 1.0: https://creativecommons.org/publicdomain/zero/1.0/deed.en

Kai M. Thaler*

[Click here for PDF]

The United States regularly criticizes and clashes with rivals over their relationships with armed groups, like Russia backing eastern Ukrainian rebels and Iran supporting militias in Iraq, but has its own long history of relationships with armed groups. There have recently been calls to increase U.S. reliance on armed group partners like rebel groups or militias to distribute the burden of great power competition with Russia and China. Relationships with armed groups are practically risky, however, and changes in international law around the crime of aggression and duty to ensure respect for humanitarian law have increased states’ liability for armed group partners. The United States should instead restrain itself from relying on armed groups and take greater responsibility for its armed group ties and wartime actions, a policy change that could help constrain violence against civilians, bolster the U.S.’s international reputation, and set an example for allies. Framing U.S. self-restraint as responding to international law could also provide a vital boost to the international justice system and ‘rules-based’ order if commitments are upheld.

Introduction

In February 2021, the Biden administration ordered its first known airstrikes since taking office, bombing targets in eastern Syria allegedly used for smuggling weapons into Iraq.[1] Department of Defense (DOD) spokesman John Kirby explicitly described the targets as being “used by a number of Iranian-backed militant groups.”[2] While less directly confrontational than the Trump administration’s assassination of Iranian Revolutionary Guard commander Qassem Soleimani in Iraq in 2020,[3] the strike in Syria was reportedly less about the targeted militias and more about signaling U.S. resolve to their Iranian backers.[4] In June 2021, the pattern continued, as U.S. drones attacked alleged weapons stores of “Iran-backed militia groups” along the Iraq-Syria border—attacks that the Iraqi government decried as violating their national sovereignty and international law.[5] The United States has designated Iran as a “state sponsor of terrorism” since 1984, and consistently criticizes Iran’s ties to prominent militant groups like Hezbollah, Hamas, the Taliban, the Houthis in Yemen, and al Qaeda, along with militias around the Middle East.[6] The United States used these relationships to justify the 2021 airstrikes.[7]

U.S. condemnation of Iranian armed group ties or Russian support for rebels in eastern Ukraine often rings hollow, however, given the its own history of outsourcing violence to rebels, militias, and other armed groups. Early colonial governments and post-independence U.S. expansions depended on relationships with informal settler militias and alliances with certain Indigenous nations.[8] This behavior continued, from the Bay of Pigs invasion and Cold War insurgencies in countries like Angola and Nicaragua to more recent U.S. relationships with rebel coalitions and militias in Afghanistan, Iraq, Libya, and Syria.[9] Following the withdrawal of U.S. ground forces from Afghanistan and the Taliban’s reassertion of control, there have been calls by newly-minted Afghan resistance leaders and by members of Congress to back anti-Taliban fighters, and Ahmad Massoud’s “National Resistance Front” set up a lobbying shop in Washington, D.C.[10] With Russia threatening to invade Ukraine in late 2021 and invading in early 2022, U.S. officials began planning for the possibility of supporting insurgents in the event that Russia toppled the Ukrainian government.[11]

Calls for renewing U.S. military, financial, and political aid to rebel groups clash with the Biden administration’s expressed goals of reestablishing U.S. leadership and global reputation, as well as strengthening a “rules-based international order” in the face of a rising China, resurgent Russia, and increasingly assertive Iran and Turkey.[12] To be an effective global leader, the United States must clean up its own act domestically with regard to issues of racism, political polarization, threats of violence, and voting restrictions.[13] Tackling human rights and democratic legitimacy issues at home and taking bold action to reinvent and revitalize the United States’ role in the world are mutually aligned goals, however, and can be pursued at the same time.[14]

Given the United States’ checkered history of covert interventions and other actions contravening international law,[15] one of the best ways for the United States to show actual fidelity to playing by the rules is by making a costly commitment and tying its hands when it comes to relationships with armed groups. Taking responsibility for the actions of U.S.-backed armed groups today can demonstrate the credibility of U.S. commitments to human rights and international law, and would show accountability to conflict-affected populations. The activation of the International Criminal Court’s (ICC) jurisdiction over the crime of aggression in 2018 and new International Committee of the Red Cross’s (ICRC) commentaries on the Geneva Conventions both provide a chance to increase state liability for armed group partners’ actions. Even if the United States remains wary of subjecting itself to international legal jurisdiction, active support for these legal shifts and proactive compliance with them would offer an opportunity for U.S. leadership among major powers and could help establish and enforce new norms of responsibility for armed group partners. Restricting relationships with armed groups could also constrain temptations to intervene in conflicts where there is little trust in local armed groups to protect civilians or de-escalate situations with rivals.

Taking options off the table is a tough sell when it comes to security policy, but reducing U.S. reliance on armed group intermediaries and accepting responsibility for relationships with armed groups are risks worth taking: for humanitarian reasons, to help restore the United States’ reputation abroad, and to set an example for allies. It is also a choice broadly embraced by the public and foreign policy elites, who prefer alliances with states, rather than armed groups.[16] Solidifying this strategic shift by embracing international law can provide stronger standing to pressure adversaries and allies alike about aggression and human rights abuses abroad, while also bolstering international law and international order when they are threatened or eroding.[17]

I. Understanding State-Armed Group Relationships

The United States and other countries engage with armed groups to pursue different goals, and with varying levels of cooperation and influence over armed group behavior. There is a long history of states outsourcing coercive actions to actors ranging from pirates and mercenaries before the 20th century, to rebel organizations, warlords, militias, and private military companies today.[18] States also sponsor armed groups for reasons not directly related to national security, such as ideological or identity affinity. In other instances, armed groups remain autonomous: independent of state influence or support, or equal to weak states in power and capabilities and engaging in relationships on their own terms. This Article focuses on the United States, but the arguments about the perils of state-armed group relations and their legal implications also apply to other major powers and U.S. allies. The United Kingdom and other North Atlantic Treaty Organization (NATO) allies, for instance, collaborated in Afghanistan with violent warlords and local militias who hastily rebranded themselves as security contractors; France backed Libyan rebels who committed atrocities during the war to overthrow Muammar Gaddafi, and has organized and allied with militias in Chad and Mali.[19]

Armed groups adopt forms, goals, and tactics intersecting categories used by analysts, and they shift over time. This makes it often unproductive to draw clean lines between, for instance, rebel groups, terrorist organizations, and criminal organizations, or—given the increasingly blurry lines between war and peace—to restrict typologies to wartime relationships.[20] State relationships with any sort of armed group, however, can be divided into three types: delegation, sponsorship, and autonomy.[21]

In a delegation relationship, a state either devolves coercive authority to an armed group or strengthens an armed group’s capabilities for it to advance the state’s core security goals, such as preserving territorial integrity, maintaining domestic political control, or countering threats from external rivals.[22] States may delegate to armed groups that project force in the domestic periphery, though this Article concentrates on delegation across national borders.[23] Delegation can be useful for states to reduce material and reputational costs, to take advantage of an armed group’s skills, or as a tool for domestic or interstate bargaining. Still, in delegation relationships, armed groups undertake tasks that states would pursue themselves absent the armed group’s collaboration.[24]

Delegation is a popular choice for invading or occupying forces without local knowledge or legitimacy. For example, the United States relied on local militias in the Sunni Awakening to retake Al-Anbar province from al Qaeda in Iraq.[25] States may also delegate across borders to attack rival states or foreign-based insurgents. For instance, the Reagan Administration helped organize and supported Contra forces to destabilize Nicaragua’s leftist Sandinista government in the 1980s, when there was not congressional or public will for direct intervention.[26] Another example is Algeria’s longstanding supplying and sheltering of Polisario Front rebels fighting against Morocco for Western Sahara’s autonomy.[27]

In sponsorship relationships, a state sees an armed group’s aims not as tied to its core security interests, but as compatible with broader national interests, usually due to ideological, ethnic, or other affinities.[28] For this reason, sponsorship tends to take place in countries beyond a state’s immediate neighborhood. Examples include North Korea’s support for leftist guerrilla movements around the globe during the Cold War, and Libya’s arming and training of Basque separatists Euskadi Ta Askatasuna (ETA) in Spain and the Irish Republican Army in Northern Ireland.[29] The United States sponsored right-wing rebels widely during the Cold War, from exiled Kuomintang fighters in Myanmar who continued the fight against China’s victorious communists in the 1950s,[30] to the formerly Chinese-sponsored National Union for the Total Independence of Angola (UNITA) in the 1980s and 1990s[31]—situations and tasks to which the United States was unwilling to commit its own forces.

An autonomy relationship involves an armed group that has independence in its decision-making and can survive without state support.[32] An autonomous armed group chooses whether to fight states, ignore them, or to engage in non-conflictual relationships with them. Autonomous groups have an approximate power symmetry or advantage relative to states in their areas of operations, such that they do not depend upon states for operational survival and could not be suppressed easily by the state in their base areas. This is, in part, why autonomous groups persist in areas of state weakness or collapse. The United States is most likely to work with autonomous groups through intelligence agencies and Special Operations Forces.[33] When there is a degree of U.S. cooperation with and material or intelligence support for an autonomous group, as with the Northern Alliance in Afghanistan up through 2001, legal obligations and liabilities can still apply to U.S. actors.[34]

An example of an autonomy relationship opposed by the United States would be the relationship between al Qaeda and the Taliban government in Afghanistan from 1996 to 2001. The Taliban used al Qaeda’s financial and military resources to help consolidate control throughout Afghanistan. Al Qaeda supported the Taliban in exchange for a territorial base, but maintained its strategic and operational autonomy.[35] Al Qaeda frequently acted against Taliban interests, but could not be held to account. Despite U.S. demands that the Taliban turn over al Qaeda’s leadership after the September 11 attacks, it is unclear the Taliban could have done so if they wanted to,[36] due to the power symmetry in the relationship and the Taliban’s incomplete control over Afghan territory. From the U.S. perspective, however, the Taliban government was liable for the actions of its armed group partner.

II. Who Is Liable for Armed Group Actions Under International Law?

Though armed groups control and affect areas populated by millions of people around the globe, international law was designed with states and interstate relations in mind. As a result, armed groups’ murky legal status has historically offered a loophole for their state backers to escape accountability for violating another state’s sovereignty or committing violence against civilians, even as legal enforcement has expanded to indict and try armed group leaders themselves.[37]

Delegating to armed groups to pressure external rivals is legally useful, since under the United Nations Charter sovereignty precludes states from invading each other’s territory except in self-defense,[38] and supporting an armed group offers potential plausible deniability if a state can keep the ties secret. Yet even when such ties are clear or “implausibly deniable,”[39] the international community has rarely legally punished state support for external armed groups. Powerful states have tended to escape accountability outside of diplomatic condemnations, while weaker states face financial or military consequences, but not legal action. For instance, Russia faced few consequences for its long support for South Ossetian rebels, which culminated in direct intervention and war against the Georgian government in 2008, and increased integration of South Ossetia into Russia.[40] African leaders and officials who have supported rebels and militias in the Democratic Republic of the Congo have faced some threats of sanctions, but little legal pressure.[41]

Recent advances in international legal standards and scholarship have created possibilities to close this gap, moving armed groups and their relations with states out firmly into the realm of international law, leading to some successful prosecutions. In 1977, the Geneva Conventions were expanded to cover armed groups fighting wars of national liberation against colonial powers as part of international conflicts,[42] while “other dissident armed groups” who control territory in non-international conflicts were also held to have obligations to abide by international humanitarian law.[43] Increasingly, international tribunals and national courts with universal jurisdictions have held armed group leaders subject to international criminal law on war crimes, crimes against humanity, genocide, piracy, and terrorism, which has restrained some armed group leaders in their decision making.[44] It is now generally accepted that armed groups have obligations to comply with international law, though only individuals, rather than entire organizations, can face legal claims.[45] Prosecuting individual armed group leaders or members may be useful for personal accountability, but it ignores armed groups’ collective nature and, crucially, does not address the problem of state support.[46]

In cases where a state delegates, using an armed group to pursue state aims, the armed group’s actions could be considered “adopted conduct” of the state if there is evidence that the state’s leaders considered the armed group to be acting on their behalf and approved of actions it took that violated international law.[47] Yet legal standards for attributing responsibility both to states and individual state officials have historically set high bars of state officials exercising direct operational control over armed groups, even for private military companies they contract with.[48]

The International Court of Justice (ICJ) in its 1986 Nicaragua ruling found clear evidence that the United States had financed, organized, and supplied the Contra rebel forces, which fought against Nicaragua’s revolutionary Sandinista government, by providing equipment, arms, training, and intelligence. U.S. intelligence agents even aided in operational planning and target selection.[49] Despite this, the court ultimately ruled that, to be liable, a state must have “effective control” over specific operations in which an armed group committed crimes.[50] The ICJ’s judges may have ruled narrowly in the Nicaragua case due to questions about the court’s legitimacy and U.S. non-cooperation.[51] The ICJ, however, upheld the effective control standard in its later Bosnian Genocide ruling.[52]

Customary law has since evolved, however, towards a standard of “overall control.” The International Criminal Tribunal for the Former Yugoslavia (ICTY) and then the Special Court for Sierra Leone (SCSL) have challenged the effective control standard and broadened the notion of state responsibility. In Tadić, the ICTY Appeals Chamber held that the standard for state liability need not be effective control over specific operations, but can be “overall control” resulting from “organising,  coordinating  or  planning  the  military  actions  of  the  military  group, in addition to financing, training and equipping or providing operational support to that group.”[53] The ICTY applied this standard to hold Federal Republic of Yugoslavia officials responsible for atrocities committed by their allied Serb armed groups in Bosnia-Herzegovina. It has since reaffirmed the overall control standard.[54]  This standard was then upheld by the SCSL in its case against former Liberian President Charles Taylor, who was convicted in 2012 of “aiding and abetting” atrocities committed by Revolutionary United Front rebels in Sierra Leone, with whom Taylor had a delegation relationship—though the SCSL also found Taylor liable for effective control of specific operations.[55]

Charles Taylor’s conviction established accountability for former heads of state (former Yugoslavian/Serbian leader Slobodan Milošević died during his ICTY trial before a verdict),[56] and a current proceeding will further test state leaders’ accountability for crimes committed by armed groups in delegation relationships. Sudan’s transitional government in 2020 pledged to turn over former President Omar al-Bashir and other officials to the ICC for prosecution of crimes against humanity in Darfur, including those committed by the Janjaweed militias that the ICC prosecutor’s office deemed “allied” with the government forces.[57] An October 2021 military coup that returned al-Bashir’s allies to power, however, may prevent his extradition any time soon.[58] The prosecutor’s office is also investigating the case of the anti-Rohingya ethnic cleansing campaign in Myanmar, in which the state security forces who are currently in power, with the support of the now-deposed civilian leaders, allegedly cooperated with communal and religious armed groups.[59]

Two changes in the making and interpretation of international law may further solidify state actors’ liability for conduct by armed groups with whom they are in delegation or sponsorship relationships—changes that would gain greater international legitimacy if the United States endorsed and abided by them. The first major shift was the 2010 Kampala Amendments to the Rome Statute, which now codify the crime of aggression,[60] an advance in international law long sought by jurists, scholars, and activists.[61] The crime of aggression not only includes direct state attacks undertaken aggressively, rather than in self-defense; it also prohibits “[t]he sending by or on behalf of a [s]tate of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another [s]tate,” thereby holding state leaders liable for actions delegated to armed groups.[62] Since 2018, the ICC has been empowered to enforce these amendments. However, debates remain about the extent of jurisdiction over states parties to the Rome Statute that have not ratified the Kampala Amendments, and currently the ICC cannot try individuals from non-party states for the crime of aggression.[63]

This limitation, for instance, means that even though Ukraine has now recognized the ICC’s jurisdiction over crimes committed within its territory, because neither Russia nor Ukraine is signatory to the Rome Statute (and as such have not ratified the Kampala Amendments), the ICC cannot prosecute Russian leaders for the crime of aggression for Russia’s 2022 invasion of Ukraine, let alone for stoking an insurgency and intervening in Eastern Ukraine since 2014.[64] This is why some legal scholars and practitioners have argued for the government of Ukraine to work with the UN General Assembly to, through a treaty, create a special international tribunal for the crime of aggression in the Russian war on Ukraine.[65]

The crime of aggression amendments focus on violations of sovereignty, seeking to punish governments for breaching the borders and rights of other states, and for unjustified killings in that process.[66] Specific state obligations to protect people under international humanitarian law may also be expanding. The ICRC’s 2016 commentaries on the Geneva Conventions, specifically around Common Article 1, suggest that states have not only a duty not to encourage armed group partners to violate humanitarian laws, but also a duty to “ensure respect” for the Geneva Conventions by the armed groups.[67] This standard is not binding and has not yet been applied by international courts, but it offers a potential avenue for accountability in the future if judges accept the ICRC’s interpretation.[68]

Ensuring respect would mean actively seeking to restrain armed groups with which states are in delegation or sponsorship relationships—where states are providing support to armed groups and have some leverage and influence over their behavior.[69] This standard would hold states accountable even if an armed group-state relationship does not meet effective or overall control standards for attribution.[70] The positive obligation to ensure respect is “particularly strong in the case of a partner in a joint operation,” over whom a state is likely to have significant influence and leverage.[71]

For example, selling weapons to a sponsored armed group when a state knows that they will likely be used to commit violations of international humanitarian law would breach the state’s duty to ensure respect. Many activists and politicians argue that the United States bears such a responsibility for selling its state partners Saudi Arabia and the United Arab Emirates weapons used to bombard civilians in Yemen.[72] While states might object that they can never truly control other actors and that violations of the Geneva Conventions may take place regardless of how they have approached a relationship, there are obligations to ensure respect both from the beginning of a partnership and after violations have occurred. The ICRC outlines a range of actions states may take to try to ensure respect for international humanitarian law from state or armed group partners, including diplomatic pressure, placing IHL-related conditions of joint activities or arms transfers, and referring illegal actions to international and domestic investigative and judicial bodies.[73] All of these options require states to prioritize compliance with international humanitarian law at all times in a relationship.

III. Perilous Partnerships

In relationships between states and relatively powerful autonomous armed groups, there is limited scope for states to sanction or punish armed groups for behavior they disapprove of. Yet even in delegation and sponsorship relationships, armed groups always have agency and pursue their own interests, creating risks and potential pitfalls even for powerful states like the United States. Alliances with other states hold similar risks, but interstate relations also offer greater transparency than relationships with armed groups and contain more diplomatic and economic levers to persuade or compel desired behavior.[74]

Armed group partners might disobey targeting instructions or commit counterproductive, resentment-provoking violence, which can anger civilian populations or other states. U.S. reliance on militia groups to help control rural Afghanistan bred backlash when groups like the Khost Protection Force committed atrocities against local populations, increasing support for the Taliban’s return.[75] The execution of thirteen Turkish workers in northern Iraq in February 2021, allegedly by the Kurdistan Worker’s Party (PKK), increased U.S.-Turkish tensions, since Turkey saw the United States as tacitly supporting the PKK due to U.S. sponsorship of Kurdish rebels in Syria.[76] Where multiple armed groups are being trained or supported by different military branches or government agencies, there is a risk of confusion among the public and armed group partners themselves about who they are fighting alongside or competing against for territorial control and resources. An example of such risk is the U.S. military and Central Intelligence Agency (CIA)’s backing of different rebels and militias in Syria.[77] Armed groups might also take advantage of state resources to develop their own power bases and then strike out on their own or even switch sides—for instance, when Kashmiri militant groups flipped against Pakistan and worked with Indian security forces.[78]

When delegating to an armed group to achieve foreign policy goals, states generally want to be confident that they can exert significant control over the group. If a state relies on an armed group to target a rival and then loses influence over the group, the state has lost a bargaining chip: it can no longer credibly commit to reducing armed group attacks on the rival state.[79] For example, the Mozambican rebel group Renamo was initially formed by the Rhodesian intelligence agency and then entered into a delegation relationship with South Africa after Zimbabwe shifted to majority rule. Over time, however, Renamo developed its own domestic constituency and legitimacy in Mozambique by playing on popular grievances. By the late 1980s, Renamo was increasingly independent of South African influence and could no longer reliably be used as a negotiating tool by South Africa’s apartheid government.[80]

A worse scenario for states is when an armed group abandons a cooperative relationship and attacks its erstwhile patron.[81] Pakistan offers prime examples. Domestically in the Federally Administered Tribal Areas, Pakistan empowered radical Islamist leaders who developed militia groups that the government thought would help control remote areas, but which then threatened the stability of the country as a whole.[82] Relationships with rebel agents in Jammu and Kashmir have sometimes backfired,[83] and Pakistani attempts to destabilize and balance against Afghanistan have had similarly negative effects. The mujahideen whom Pakistan supported in the 1980s Afghan War evolved into the Taliban and al Qaeda—actors who have contributed to regional instability, increased violence within Pakistan, and threatened the Pakistani government. This issue afflicts powerful states, too: the United States likewise regretted its support for the Afghan mujahideen in the long run, as Osama bin Laden formed al Qaeda and turned against his former sponsor.[84]

Blowback from state-armed group relationships can also occur when delegation or sponsorship leads a rival to directly escalate conflict with the state. Where a state or armed group knows or suspects it was attacked by a group supported by a rival state, it may retaliate against the rival state, regardless of attempts to deflect or deny responsibility. States may respond through escalating economic sanctions and diplomatic conflicts, as the United States did over Libyan links to the 1985 Rome and Vienna airport attacks.[85]  Alternatively, states may take military action, like when the United States unleashed airstrikes on Libya after the 1986 Berlin bombing[86] or launched cruise missiles at Sudan and Afghanistan following al Qaeda’s 1998 embassy bombings in Kenya and Tanzania.[87] More recently, U.S.-Russian tensions escalated after Wagner Group mercenaries, with ties to the Russian government, were involved in a 2018 attack on U.S. forces in Syria.[88]

IV. Reversing U.S. Resistance to International Legal Accountability?

There are, therefore, strong practical reasons for restricting U.S. relationships with armed groups abroad. Alongside the potential security policy benefits, following international law and citing it as an additional justification for U.S. self-restraint would send a signal of U.S. willingness to hold itself to emerging international legal standards, despite past resistance. The crime of aggression entering into force and shifts in international humanitarian law move us closer to a world of accountability for states delegating to or sponsoring armed groups. Yet they also come at a time when the legitimacy of the laws of war is threatened and challenged by powerful actors’ open defiance, allegations of anti-African bias at the ICC, persistence of the ICJ’s state-centric nature, and bungled ICC prosecutions.[89] Increased U.S. support for international law and compliance with it would greatly shore up the international legal system.

Although keen to criticize China and Russia for violations of international laws and “rules-based order,” the United States has been reluctant to accept international courts’ jurisdiction over its own behavior—Nicaragua is still waiting for reparations payments ordered by the ICJ.[90] In particular, the United States has a complicated and often adversarial history with the ICC.[91] The United States refused to ratify the Rome Statute, rejected ICC authority to investigate U.S. officials and security personnel, and was skeptical of the Kampala Amendments;[92] nevertheless, it has also supported ICC investigations and cases against rebel leaders, former Libyan leader Muammar Gaddafi, and ex-Sudanese leader Omar al-Bashir.

The lowest point in U.S.-ICC relations came in 2020, when the Trump administration issued an executive order that effectively criminalized the ICC’s investigation of conduct by U.S. military forces and intelligence agents in Afghanistan, barred the ICC’s staff from U.S. territory, and threatened to seize their assets.[93] Later, the Trump administration sanctioned the ICC chief prosecutor Fatou Bensouda and top prosecutorial official Phakiso Mochochoko.[94]

President Biden revoked President Trump’s anti-ICC executive order and sanctions in April 2021,[95] yet the Biden administration remains wary of the ICC. President Biden’s Department of State (DOS) rejected the ICC’s initial February 2021 ruling that the court had jurisdiction to investigate potential crimes committed in the Israeli-occupied Palestinian Territories, since the United States refuses to recognize Palestinian sovereignty and Israel is not a state party to the Rome Statute.[96] The Biden administration likewise criticized the Palestine investigation when the ICC officially announced it in March 2021.[97] Even in his statement withdrawing sanctions on Bensouda and Mochochoko, Secretary of State Antony Blinken emphasized that the administration still “disagree[d] strongly” with the Afghanistan and Palestine investigations—before proclaiming how much the United States supported the rule of law and justice for victims of atrocities.[98]

The Biden administration faces continuing choices about how to respond to the ICC under the new chief prosecutor, Karim Khan, and as the Afghanistan and Palestine investigations continue. Given the potential liability of some Biden administration officials and U.S. military and intelligence personnel for war crimes or torture in Afghanistan and possibly Iraq, and with limited congressional interest in subjecting the United States to accountability in The Hague, it seems highly unlikely that the administration will seek to ratify the Rome Statute to have the United States finally join the ICC and accept the court’s authority to prosecute U.S. officials and security force members. After the Trump administration’s aggressive stance, however, even simply allowing ICC investigations to proceed without interference would improve relations with the court. Cooperating with the Afghanistan investigation, though, and explicitly acknowledging U.S. responsibilities under the Kampala Amendments could send a powerful global signal that the United States is willing to subject itself to international law, rather than only holding others accountable.

The United States need not be a member of the ICC or accept its jurisdiction to take seriously and act upon its investigatory findings. The ICC is a court of last resort, designed only to prosecute cases when domestic courts are unable or unwilling to do so. To illustrate, the prosecutor’s office in December 2020 closed its inquiry into abuses by British forces in Iraq because it deemed that the United Kingdom government had not blocked or abandoned investigations into the allegations.[99] The United States could take that as a cue and conduct its own new investigations of anyone flagged by ICC prosecutors as likely having committed crimes in Afghanistan, rather than treating international investigations as threats.

Accepting U.S. responsibility for the actions of armed groups it delegates to or sponsors abroad would mean doing more to constrain human rights violations, punishing abusers, and compensating victims. While U.S. forces have been uneven and inconsistent in self-monitoring and holding their own accountable (and the CIA often rejects oversight and accountability),[100]  U.S. military forces themselves are bound at all times by the Uniform Code of Military Justice[101] and are required to report known violations of it.[102] These obligations remain during counterinsurgency operations with foreign state or armed group forces.[103] The “Leahy Laws” also restrict the DOS and Department of Defense (DOD) from training or equipping units of foreign security forces that have been credibly implicated in “gross violations of human rights” including torture, extrajudicial killings, forced disappearances, and rape.[104] However, “the [DOS] and DOD do not generally consider civilian harm incurred during the conduct of hostilities in a conflict as a gross violation of human rights, even if and when credible third parties have determined that the laws of armed conflict may have been violated,”[105] and the CIA remains conspicuously not subject to the Leahy Laws.[106]

There should be consistent and thorough follow-through in ensuring that not only state allies, but also armed group partners are obeying international legal standards. To that end, the United States should cease or reduce assistance and cooperation when it is clear that an armed group partner is unable or unwilling to restrain its forces and hold them accountable for abuses, and should turn over evidence of human rights violations to international investigators. In addition, compensating victims of abuses by armed group partners could, alongside legal accountability, reduce enmity towards U.S. forces and the U.S. government,[107] and would reflect an acknowledgment of U.S. obligations towards those directly affected by its security policies abroad. Accepting responsibility would also mean being honest about the use of U.S. power and resources and the types of relationships the United States engages in with armed groups—rather than cloaking military relationships and strategic aims in ambiguity and jargon like hybrid warfare and grey zone conflicts,[108] while criticizing rivals for similar things the United States has done.[109]

Russia withdrew from the Rome Statute in 2016 over the ICC prosecutor’s preliminary findings on Russian aggression in Crimea and Eastern Ukraine.[110] China faces allegations from independent international law experts of genocide against Uyghurs in Xinjiang.[111] There is an opportunity available to demonstrate President Biden’s desired moral leadership in foreign policy,[112] and for the United States to make a significant reputational gain by embracing international law more broadly and working to respect it in practice, whether or not U.S. leaders ever accept ICC membership and jurisdiction.[113]

Conclusion

Opting for self-restraint goes against much current strategic thinking about U.S. relationships with armed groups and shifting the costs of war to state and non-state allies.[114] With Russia delegating its territorial aspirations and border anxieties to rebels in eastern Ukraine before a direct invasion[115]  and as concern grows about potential direct or proxy conflicts with China,[116] there have been some calls for the United States to increase its reliance on armed groups to distribute the burden of great power competition and counterterrorism.[117] Military officers and policy professionals have even discussed reviving U.S. support for maritime privateers to attack Chinese merchant vessels and port facilities.[118]

The United States has relied on delegation to militias in Afghanistan and Iraq and sponsorship of Syrian rebel groups in recent years, along with private military contractors. With U.S. forces stretched thin after two decades of “forever war” in Afghanistan and Iraq, increasing direct competition with Russia and China would likely entail higher degrees of support for armed groups, which may generate protracted conflicts, and, importantly, higher risks of escalation. For example, delegation and some sponsorship relationships involve a heavy presence of state forces in a training or supervisory role, thus increasing the chances of confrontations that could easily escalate to larger crises.

Following Russia’s full-scale invasion of Ukraine in February 2022, debates emerged within the Biden administration about arming Ukrainian insurgents in the event that Russia toppled the Ukrainian government or occupied major portions of the country, with worries that doing so could lead to direct conflict with Russia.[119] This is a case in which Russia has violated the United Nations Charter and Rome Statute (which has applied to violence in Ukraine since 2013) by invading Ukraine without just cause and committing the crime of aggression,[120] and has violated international humanitarian law by committing indiscriminate violence using weapons including cluster munitions, attacking protected civilian sites like hospitals, and massacring civilians.[121] Ukraine’s legitimate, democratically-elected and internationally-recognized government requested military and humanitarian aid before and since the beginning of the invasion, offering a strong basis for continued support to Ukrainian insurgents if the government fell.[122] In this case, there would be a strong justification for arming Ukrainian insurgents. Just as it must try to do in supplying the sitting Ukrainian government,[123] to ensure respect for international humanitarian law the United States would need to be careful about where its weapons and aid were going and how insurgents were treating captured Russian fighters or suspected local collaborators, especially given the presence in the Ukrainian National Guard and volunteer forces of right-wing extremists.[124]

Russian atrocities in Ukraine and a desire to seek accountability for them have even led some U.S. policymakers to reconsider the U.S. relationship with the ICC and objections to the court’s jurisdiction over citizens of states not party to the Rome Statute—while still trying to avoid ICC jurisdiction over U.S. officials and security personnel.[125] Regardless of its stance on the ICC, if the United States accepts liability for the behavior of armed group partners, it will need to become more selective, only engaging in delegation or sponsorship relationships with groups it feels certain it can trust or ensure compliance from, in situations where relying on or supporting the armed group is the last, best option.[126] It is difficult to end relationships with armed groups once they have begun, even when dealing with unreliable or abusive actors like certain Afghan militias who took U.S. arms, money, and grants of local authority and then undermined regional security and U.S. aims.[127] Setting a higher bar for which armed groups the United States is willing to cooperate with could make it easier to avoid such counterproductive relationships in the future.

If the United States feels legally compelled to effectively monitor and sanction armed group partners, this would require more on-the-ground forces to manage the relationship. This increased burden to U.S. personnel, and many U.S. soldiers’ and marines’ reluctance to focus on advisory relationships,[128] could make the government less willing to get involved in conflicts with limited clear connection to protecting American lives and the country itself. This is in line with a broader realist and conservative strategy of restraint in terms of limiting interventions abroad and focusing only on conflicts in which U.S. core interests are at stake.[129] Surveys among both the general public and foreign policy experts also reveal preferences for alliances with states over those with non-state actors and greater trust in state partners,[130] so pulling back from relationships with armed groups should be broadly popular. Anchoring the strategic shift in international law and accountability, not only self-interest, can inject more actual liberalism into the beleaguered “liberal international order,”[131] while also aligning with progressive priorities of limiting intervention abroad and respecting human rights globally,[132] whether or not actors are U.S. allies. U.S. financial and military power remain undeniable,[133] but as the Biden administration is well aware, credibility and global leadership must be earned.[134] To have a rules-based order, the powerful must follow the rules, too.

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[1] Alex Ward, Biden launched airstrikes against Iran-backed militias in Syria to “send a message” , Vox (Feb. 26, 2021), https://www.vox.com/2021/2/25/22302197/biden-syria-iran-airstrike-military.

[2] U.S. Conducts Defensive Precision Strike, U.S. Dep’t of Def. (Feb. 25, 2021), https://www.defense.gov/Newsroom/Releases/Release/Article/2516518/us-conducts-defensive-precision-strike/.

[3] Luca Ferro, Killing Qasem Soleimani: International Lawyers Divided and Conquered, 53 Case W. Reserve J. Int’l L. 163, 166–83 (2021).

[4] Ward, supra note 1.

[5] Louisa Loveluck et al., U.S. forces come under fire in Syria hours after airstrikes target Iran-backed militias, Washington Post (June 28, 2021), https://www.washingtonpost.com/world/middle_east/iraq-condemns-us-militia-airstrikes/2021/06/28/c5f44b58-d80e-11eb-8c87-ad6f27918c78_story.html.

[6] Ofira Seliktar, Iran’s Geopolitics and Revolutionary Export: The Promises and Limits of the Proxy Empire, Orbis, Winter 2021, at 152, 155–65; shley Lane, Iran’s Islamist Proxies in the Middle East, Wilson Ctr. (May 20, 2021), https://www.wilsoncenter.org/article/irans-islamist-proxies; Asfandyar Mir & Colin P. Clarke, Making Sense of Iran and al-Qaeda’s Relationship, Lawfare (Mar. 21, 2021), https://www.lawfareblog.com/making-sense-iran-and-al-qaedas-relationship; Fatemeh Aman, Iran-Taliban growing ties: What’s different this time?, Atlantic Council (Feb. 16, 2021), https://www.atlanticcouncil.org/blogs/iransource/iran-taliban-growing-ties-whats-different-this-time/.

[7] U.S. Conducts Defensive Precision Strike, supra note 2; Ward, supra note 1.

[8] See, e.g., John Grenier, The First Way of War: American War Making on the Frontier, 32–43, 170–72 (2005).

[9] Erica Gaston, Practical Challenges and Hybrid Hypocrisy: Legal and Policy Dilemmas with the Hybrid Moniker, War on Rocks (Jan. 25, 2021), https://warontherocks.com/2021/01/practical-challenges-and-hybrid-hypocrisy-legal-and-policy-dilemmas-with-the-hybrid-moniker/.

[10] Ahmad Massoud, The mujahideen resistance to the Taliban begins now. But we need help., Washington Post (Aug. 18, 2021), https://www.washingtonpost.com/opinions/2021/08/18/mujahideen-resistance-taliban-ahmad-massoud/; Jack Detsch et al., ‘Charlie Wilson’s Playbook’: Lawmaker Pushes Biden to Back Anti-Taliban Resistance, Foreign Pol’y (Aug. 25, 2021), https://foreignpolicy.com/2021/08/25/charlie-wilson-playbook-biden-anti-taliban-resistance/; Lachlan Markay, Afghan resistance ups its U.S. lobbying, Axios (Oct. 27, 2021), https://www.axios.com/afghan-resistance-lobbying-0af8ad09-e44a-4015-bed9-b8c97fbcd546.html

[11] David Ignatius, The Biden administration weighs backing Ukraine insurgents if Russia invades, Washington Post (Dec. 19, 2021), https://www.washingtonpost.com/opinions/2021/12/19/biden-ukraine-insurgents-russia/; Jack Detsch & Robbie Gramer, Biden Administration Debates Legality of Arming Ukrainian Resistance, Foreign Pol’y (Feb. 24, 2022), https://foreignpolicy.com/2022/02/24/biden-legal-ukraine-russia-resistance/.

[12] Kai Thaler, Afghan Insurgents Are a Dead End, Foreign Pol’y (Nov. 23, 2021), https://foreignpolicy.com/2021/11/23/afghanistan-taliban-national-resistance-front/.

[13] Kelebogile Zvobgo, Foreign Policy Begins at Home, Foreign Pol’y (Jan. 15, 2021), https://foreignpolicy.com/2021/01/15/human-rights-foreign-policy-domestic/; Emma Ashford, America Can’t Promote Democracy Abroad. It Can’t Even Protect It at Home., Foreign Pol’y (Jan. 7, 2021), https://foreignpolicy.com/2021/01/07/america-cant-promote-protect-democracy-abroad/.

[14] William J. Burns, The United States Needs a New Foreign Policy, Atlantic (July 14, 2020), https://www.theatlantic.com/ideas/archive/2020/07/united-states-needs-new-foreign-policy/614110/; Sarah H. Cleveland, A Human Rights Agenda for the Biden Administration, 115 AJIL Unbound, 2021, at 57.

[15] See generally Michael Poznansky, In the Shadow of International Law: Secrecy and Regime Change in the Postwar World (2020); Lindsey A. O’Rourke, Covert Regime Change: America’s Secret Cold War (2021).

[16] On public opinion, see Sara Plana, ‘Proxies’ and the Public: Testing the Statist Bias in Public Support for Military Aid (MIT Political Sci. Dep’t Research, Paper No. 2020-9), https://dx.doi.org/10.2139/ssrn.3708305. On foreign policy elites’ view, see Sibel Oktay et al., Treaty Allies Matter for US Foreign Policy Experts — but They Are Not Indispensable, Chicago Council on Global Aff. (Aug. 3, 2021), https://www.thechicagocouncil.org/research/public-opinion-survey/treaty-allies-matter-us-foreign-policy-experts-they-are-not.

[17] On the struggles of the international legal regime, see, e.g., Ian Clark et al., Crisis in the laws of war? Beyond compliance and effectiveness, 24 Eur. J. Int’l Rel. 319 (2018); Eric A. Posner & Jack L. Goldsmith, The Limits of International Law Fifteen Years Later, 22 Chi. J. Int’l L. 110 (2021). On the state of international order, see, e.g., Rebecca Friedman Lissner & Mira Rapp-Hooper, The Day after Trump: American Strategy for a New International Order, 41 Wash. Q., no. 1, 2018, at 7; Michael Barnett, The End of a Liberal International Order That Never Existed, Global (Apr. 16, 2019), https://theglobal.blog/2019/04/16/the-end-of-a-liberal-international-order-that-never-existed/.

[18] See generally Irregular Armed Forces and their Role in Politics and State Formation (Diane E. Davis & Anthony W. Pereira eds., 2003); Alex Marshall, From civil war to proxy war: past history and current dilemmas, 27 Small Wars & Insurgencies 183 (2016); see also Waseem Ahmad Qureshi, The Ethics of Asymmetric Warfare, 4 Cardozo Int’l & Comp. L. Rev. 233, 234–36 (2020).

[19] Graham Cronogue, Rebels, Negligent Support, and State Accountability: Holding States Accountable for the Human Rights Violations of Non-State Actors, 23 Duke J. Comp. & Int’l L. 365, 376–83 (2013); Elke Krahmann, NATO contracting in Afghanistan: the problem of principal-agent networks, 92 Int’l Aff. 1401, 1404–12 (2016); Michael Shurkin, France’s War in the Sahel and the Evolution of Counterinsurgency Doctrine, Tex. Nat’l Sec. Rev., Winter 2020, at 35, 54–56.

[20] Revisiting the State Monopoly on the Legitimate Use of Force (Alyson Bailes et al. eds., 2007), https://www.dcaf.ch/revisiting-state-monopoly-legitimate-use-force; Sabine Otto et al., Capturing group alignments: Introducing the Government and Armed Actors Relations Dataset (GAARD), Res. & Pol., October 2020, at 1, 1–3; Paul Staniland, Ordering Violence: Explaining Armed Group-State Relations from Conflict to Cooperation (2021); Kai M. Thaler, Delegation, Sponsorship, and Autonomy: An Integrated Framework for Understanding Armed Group–State Relationships, 7 J. Global Sec. Stud. ogab026, 3–6 (2022).

[21] Thaler, supra note 20, at 5–13.

[22] Id. at 5–10; Daniel Byman et al., Trends in Outside Support for Insurgent Movements 9–40 (2001).

[23] In domestic settings, governments often rely on armed groups to control or defend remote and contested areas where they are unable or unwilling to project force, such as Uganda organizing militias in the country’s north or police collaborating with criminal organizations to keep neighborhoods out of gang control in Brazil. See, e.g., Enrique Desmond Arias, The Impacts of Differential Armed Dominance of Politics in Rio de Janeiro, Brazil, 48 Stud. Comp. Int’l Dev. 263 (2013) (discussing Uganda); Adam Branch, Neither Peace nor Justice: Political Violence and the Peasantry in Northern Uganda, 1986-1998, Afr. Stud. Q., Spring 2005, at 1 (discussing Brazil).

States also find domestic delegation relationships useful for technically illegal, but state-condoned, coercive actions. In some cases, state-armed group connections are opaque and there is a degree of plausible deniability, like the Assad regime’s use of local armed gangs to attack protesters in pre-civil war Syria. See Reinoud Leenders & Antonio Giustozzi, Outsourcing state violence: The National Defence Force, ‘stateness’ and regime resilience in the Syrian war, 24 Mediterranean. Pol. 157, 163–65 (2019).

[24] See generally Daniel Byman & Sarah E. Kreps, Agents of Destruction? Applying Principal-Agent Analysis to State-Sponsored Terrorism, 11 Int’l Stud. Persp. 1 (2010); Navin A. Bapat, Understanding State Sponsorship of Militant Groups, 42 Brit. J. Pol. Sci. 1 (2012); Idean Salehyan, Rebels without Borders: Transnational Insurgencies in World Politics (2009).

[25] Govinda Clayton & Andrew Thomson, The Enemy of My Enemy is My Friend … The Dynamics of Self-Defense Forces in Irregular War: The Case of the Sons of Iraq, 37 Stud. Conflicts & Terrorism 920, 924–31 (2014); Henning Tamm, The Invader’s Dilemma: Enlisting Rebel Groups, in The Governor’s Dilemma: Indirect Governance Beyond Principals and Agents 119, 106–08 (Kenneth W. Abbott et al. eds., 2020).

[26] See generally Robert Pastor, Not Condemned to Repetition: The United States and Nicaragua (2d ed. 2002).

[27] ‘Foreign manoeuvres’ in W.Sahara destabilising Algeria: PM, France 24 (Dec. 12, 2020), https://www.france24.com/en/live-news/20201212-foreign-manoeuvres-in-w-sahara-destabilising-algeria-pm.

[28] Thaler, supra note 20, at 10–11; see also Daniel Byman, Deadly Connections: States That Sponsor Terrorism (2005).

[29] On Libya, see Mark Devenport, Gaddafi death, the Eta ceasefire and Northern Ireland, BBC (Oct. 21, 2011), https://www.bbc.com/news/uk-northern-ireland-15403982. On North Korea, see generally Benjamin R. Young, Guns, Guerillas, and the Great Leader: North Korea and the Third World (2021).

[30] Patrick Winn, They were CIA-backed Chinese rebels. Now you’re invited to their once-secret hideaway., World (Aug. 28, 2019), https://www.pri.org/stories/2019-08-28/they-were-cia-backed-chinese-rebels-now-you-re-invited-their-once-secret-0.

[31] See, e.g., William Minter, The US and the War in Angola, 18 Rev. Afr. Pol. Econ. 135 (1991).

[32] Thaler, supra note 20, at 11–13.

[33] See Loch K. Johnson, Intelligence Analysis and Planning for Paramilitary Operations, 5 J. Nat’l Sec. L. & Pol’y 481 (2012); Richard M. Pious, White House Decisionmaking Involving Paramilitary Forces, 5 J. Nat’l Sec. L. & Pol’y 465, 467–74 (2012).

[34] Ahmed S. Younis, Imputing War Crimes in the War on Terrorism: The U.S., Northern Alliance, and ‘Container Crimes’, 9 Wash. & Lee Race & Ethnic Anc. L. J. 109, 117–23 (2003).

[35] Byman, supra note 28, at 200–10; see also Amin Saikal, The Role of sub-national actors in Afghanistan, in Violent Non-State Actors in Contemporary World Politics 239 (Klejda Mulaj ed., 2010).

[36] Byman, supra note 28, at 209–15; see also Alex Strick van Linschoten & Felix Kuehn, An Enemy We Created: The Myth of the Taliban-Al Qaeda Merger in Afghanistan (2012).

[37] See generally Noah Weisbord, The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats (2019); Oona A. Hathaway et al., Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors, 95 Tex. L. Rev. 539 (2017).

[38] U.N. Charter art. 2(4).

[39] Rory Cormac & Richard J. Aldrich, Grey is the new black: covert action and implausible deniability, 94 Int’l Aff. 477, 478 (2018).

[40] See generally Adam Sorenson, South Ossetia and Russia: The Treaty, the Takeover, the Future, 42 N.C.J. Int’l L. 223 (2016).

[41] Philippe Le Billon, Wars of Plunder: Conflicts, Profits and the Politics of Resources 163–70 (2012).

[42] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 1, ¶ 4, June 8, 1977, 1125 U.N.T.S. 3.

[43] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 1, ¶ 1, June 8, 1977, 1125 U.N.T.S. 609. On the evolution of international humanitarian law norms, see generally M. Cherif Bassiouni, The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Criminology 711 (2008).

[44] See, e.g., Hyeran Jo, Compliant Rebels: Rebel Groups and International Law in World Politics 41–50  (2015).

[45] Ezequiel Heffes & Brian E. Frenkel, The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules, 8 Goettingen J. Int’l L. 39, 46–55 (2017). In two notable examples, the ICC prosecutor brought cases against Congolese rebel leader Bosco Ntaganda and Lord’s Resistance Army leaders including Dominic Ongwen for war crimes and crimes against humanity. See Prosecutor v. Ntaganda, ICC-01/04-02/06-2359, Judgment (July 8, 2019); Prosecutor v. Ongwen, ICC-02/04-01/15-1762-Red, Trial Judgment (Feb. 4, 2021).

[46] Neal A. Pollard, Globalization’s Bastards: Illegitimate Non-State Actors in International Law, 11 Low Intensity Conflict & L. Enforcement 210, 227–29 (2002).

[47] Int’l Law Comm’n, Rep. on the Work on Its Fifty-Third Session, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2), at 52–54 (2001). For an application of the standard of adopted conduct to human rights violations by non-state actors with ties to states, see Jan Arno Hessbruegge, Human Rights Violations Arising from Conduct of Non-State Actors, 11 Buff. Hum. Rts. L. Rev. 21, 50–53 (2005).

[48] See generally Derek Jinks, State Responsibility for the Acts of Private Armed Groups, 4 Chi. J. Int’l L. 83 (2003); Hannah Tonkin, State Control over Private Military and Security Companies in Armed Conflict (2011); see also Hessbruegge, supra note 47, at 50–55.

[49] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, 50–55 (June 27).

[50] Id.

[51] The United States subsequently refused to pay reparations awarded for sabotage by U.S. operatives. Hathaway et al., supra note 37, at 548–50.

[52] Application of Convention on the Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. 43, ¶¶ 208–09, 400–01 (Feb. 26). For discussion of the effective control standard in this case, see Hathaway et al., supra note 37, at 550–52.

[53] Prosecutor v. Tadić, Case No. IT-94-1-A, Appeal Judgement, ¶ 137 (ICTY July 15, 1999).

[54] Prosecutor v. Delalic, Case No. IT-96-21-A, Appeals Judgment, ¶ 26 (ICTY Feb. 20, 2001); Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Judgment, ¶ 134 (ICTY Mar. 24, 2000).

[55] Prosecutor v. Taylor, SCSL-03-01-T, Judgment, ¶ 6994 (May 18, 2012). For a detailed discussion of the case, see Kai Ambos & Ousman Njikam, Charles Taylor’s Criminal Responsibility, 11 J. Int’l Crim. Just. 789 (2013).

[56] Prosecutor v. Milošević, Case No. IT-02-54 (ICTY). On the Milošević case and its implications, see, e.g., Scott Grosscup, The Trial of Slobodan Milosevic: The Demise of Head of State Immunity and the Specter of Victor’s Justice, 32 Denver J. Int’l L. & Pol’y 355 (2004); Hirad Abtahi & Grant Dawson, The anatomy of the Milošević trial (2001–2006), 1 J. Int’l Humanitarian Action, 2016, at 4.

[57] Case Information Sheet: The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC (July 2021), https://www.icc-cpi.int/CaseInformationSheets/AlBashirEng.pdf.

[58] Emma DiNapoli & Mohammed Hassan, Why the ICC’s First Trial on Darfur is About More Than Securing Justice, Just Sec. (Apr. 4, 2022), https://www.justsecurity.org/80920/why-the-iccs-first-trial-on-darfur-is-about-more-than-securing-justice/.

[59] Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ICC-01/19-27, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation (Nov. 14, 2019). In February 2021, military leaders seized power in Myanmar once again in a coup d’état, and they have resisted subsequent calls for accountability for violence against the Rohingya, now recognized by the United States as a case of genocide. See Lara Jakes, Myanmar’s Military Committed Genocide Against Rohingya, U.S. Says, N.Y. Times (Mar. 21, 2022), https://www.nytimes.com/2022/03/21/us/politics/myanmar-genocide-biden.html.

[60] International Criminal Court RC/Res. 6, The Crime of Aggression (June 11, 2010) [hereinafter Kampala Amendments].

[61] See generally M. Cherif Bassiouni, The History of Aggression in International Law, Its Culmination in the Kampala Amendments, and Its Future Legal Characterization, 58 Harv. Int’l L.J. Online 87 (2017); Claus Kreß, On the Activation of ICC Jurisdiction over the Crime of Aggression, 16 J. Int’l Crim. Just. 1 (2018); Weisbord, supra note 37.

[62] Kampala Amendments, supra note 60, Article 8 bis, ¶ 2.

[63] Dapo Akande & Antonios Tzanakopoulos, Treaty Law and ICC Jurisdiction over the Crime of Aggression, 29 Eur. J. Int’l L. 939, 940–43 (2018); Kreß, supra note 61, at 7–13. For a critical view of the Kampala Amendments’ practical limits, see, e.g., Andreas Zimmermann, A Victory for International Rule of Law? Or: All’s Well that Ends Well?: The 2017 ASP Decision to Amend the Kampala Amendment on the Crime of Aggression, 16 J. Int’l Crim. Just. 19 (2018).

[64] Ellen Ioanes, Here’s what the ICC can actually do about Putin’s war crimes, Vox (Apr. 9, 2022), https://www.vox.com/23017838/international-criminal-court-icc-putin-war-crimes.

[65] Alexander Komarov & Oona Hathaway, The Best Path for Accountability for the Crime of Aggression Under Ukrainian and International Law, Just Sec. (Apr. 11, 2022), https://www.justsecurity.org/81063/the-best-path-for-accountability-for-the-crime-of-aggression-under-ukrainian-and-international-law/; James A. Goldston, Model Indictment for the Crime of Aggression Committed against Ukraine, Just Sec. (May 9, 2022), https://www.justsecurity.org/81411/osji-model-indictment-for-the-crime-of-aggression-committed-against-ukraine/.

[66] See generally Tom Dannenbaum, Why Have We Criminalized Aggressive War?, 126 Yale L.J. 1242 (2017).

[67] Jean-Marie Henckaerts, Article 1: Respect for the Convention, in Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 35, ¶ 154 (2d ed. 2016)

[68] Hathaway et al., supra note 37, at 574–78.

[69] Thaler, supra note 20, at 5–11.

[70] Henckaerts, supra note 67, ¶¶ 125, 150–70.

[71] Id. ¶ 167.

[72] See, e.g., Robert Malley & Stephen Pomper, Accomplice to Carnage: How America Enables War in Yemen, Foreign Aff., March/April 2021, at 73; US: Suspend Saudi Arms Sales, Hum. Rts. Watch (Nov. 29, 2016), https://www.hrw.org/news/2016/11/29/us-suspend-saudi-arms-sales; Ben Hubbard & Shuaib Almosawa, Biden Ends Military Aid for Saudi War in Yemen. Ending the War Is Harder., N.Y. Times (Feb. 5, 2021), https://www.nytimes.com/2021/02/05/world/middleeast/yemen-saudi-biden.html. Such weapon sales violate the duty to ensure respect, as the ICRC’s 2016 commentaries state: “An illustration of a negative obligation can be made in the context of arms transfers. Common Article 1 requires High Contracting Parties to refrain from transferring weapons if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the Conventions.” See Henckaerts, supra note 67, ¶ 162.

[73] Henckaerts, supra note 67, ¶ 181.

[74] See, e.g., Marina E. Henke, Constructing Allied Cooperation: Diplomacy, Payments, and Power in Multilateral Military Coalitions 22–29 (2019); Barbara Elias & Alex Weisiger, Influence through Absence in U.S. Counterinsurgency Interventions? Coercing Local Allies through Threats to Withdraw, 22 Civ. Wars 512, 514 (2020).

[75] Toon Dirkx, The Unintended Consequences of US Support on Militia Governance in Kunduz Province, Afghanistan, 19 Civ. Wars 377, 388–93 (2017); Emran Feroz, Atrocities Pile Up for CIA-Backed Afghan Paramilitary Forces, Foreign Pol’y (Nov. 16, 2020), https://foreignpolicy.com/2020/11/16/afghanistan-khost-protection-forces-cia-us-pullout-taliban/; Anand Gopal, The Other Afghan Women, New Yorker (Sept. 6, 2021), https://www.newyorker.com/magazine/2021/09/13/the-other-afghan-women.

[76] Simon Lewis & Tuvan Gumrukcu, U.S. reassures Turkey over executions after Erdogan calls response ‘a joke’, Reuters (Feb. 15, 2021), https://www.reuters.com/article/uk-turkey-iraq-security-idUSKBN2AF0XV.

[77] Sam Heller, Are CIA-backed Syrian Rebels Really Fighting Pentagon-backed Syrian Rebels?, War on Rocks (Mar. 28, 2016), https://warontherocks.com/2016/03/are-cia-backed-syrian-rebels-really-fighting-pentagon-backed-syrian-rebels/.

[78] Milos Popovic, The Perils of Weak Organization: Explaining Loyalty and Defection of Militant Organizations Toward Pakistan, 38 Stud. Conflicts & Terrorism 919, 924–29 (2015).

[79] Bapat, supra note 24, at 16.

[80] See generally Carrie Manning, Constructing Opposition in Mozambique: Renamo as Political Party, 24 J.S. Afr. Stud. 161 (1998); Robert H. Davies, South African strategy towards Mozambique in the post-Nkomati period: A critical analysis of effects and implications (1985).

[81] See generally Milos Popovic, Fragile Proxies: Explaining Rebel Defection Against Their State Sponsors, 29 Terrorism & Pol. Violence 922 (2017).

[82] Yelena Biberman, Gambling with Violence: State Outsourcing of War in Pakistan and India 97–111 (2019); Kimberly Marten, Warlords: Strong-Arm Brokers in Weak States 31–63 (2012).

[83] Popovic, supra note 78; Byman & Kreps, supra note 24, at 9.

[84] See generally Saikal, supra note 35; Steve Coll, Ghost Wars: The Secret History of the CIA, Afghanistan, and Bin Laden, from the Soviet Invasion to September 10, 2001 (2005).

[85] Chronology of Libya’s Disarmament and Relations with the United States, Arms Control Ass’n (2018), https://www.armscontrol.org/factsheets/LibyaChronology (last reviewed Mar. 2021).

[86] Id.

[87] See generally Leah M. Campbell, Defending Against Terrorism:  A Legal Analysis of the Decision to Strike Sudan and Afghanistan, 74 Tul. L. Rev. 1067 (2000); Jules Lobel, The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan, 24 Yale J. Int’l. L. 537 (1999).

[88] Neil Hauer, Russia’s Mercenary Debacle in Syria: Is the Kremlin Losing Control?, Foreign Aff. (Feb. 26, 2018), https://www.foreignaffairs.com/articles/syria/2018-02-26/russias-mercenary-debacle-syria; Thomas Gibbons-Neff, How a 4-Hour Battle Between Russian Mercenaries and U.S. Commandos Unfolded in Syria, N.Y. Times (May 24, 2018), https://www.nytimes.com/2018/05/24/world/middleeast/american-commandos-russian-mercenaries-syria.html.

[89] On interconnected crises of legitimacy, compliance, and effectiveness in the IHL regime, see generally Clark et al., supra note 17. On potential problems with current ICJ jurisprudence, see Hathaway et al., supra note 37, at 552–554. On the ICC cases and relations with African states, see generally Oumar Ba, States of Justice: The Politics of the International Criminal Court (2020).

[90] Diane Desierto, Reopening Proceedings for Reparations and Abuse of Process at the International Court of Justice, EJIL: Talk! (Aug. 16, 2017), https://www.ejiltalk.org/reopening-proceedings-for-reparations-and-abuse-of-process-at-the-international-court-of-justice/.

[91] See, e.g., Kyle Rapp & Kelebogile Zvobgo, Biden reversed Trump’s sanctions on International Criminal Court officials. What happens now?, Washington Post (Apr. 5, 2021), https://www.washingtonpost.com/politics/2021/04/05/biden-reversed-trumps-sanctions-international-criminal-court-officials-what-happens-now/; Q&A: The International Criminal Court and the United States, Hum. Rts. Watch (Sept. 2, 2020), https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states; Charlie Savage, U.S. Weighs Shift to Support Hague Court as It Investigates Russian Atrocities, N.Y. Times (Apr. 11, 2022), https://www.nytimes.com/2022/04/11/us/politics/us-russia-ukraine-war-crimes.html.

[92] See generally Harold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 Am. J. Int’l L. 257 (2015).

[93] US Sets Sanctions Against International Criminal Court, Hum. Rts. Watch (June 11, 2020), https://www.hrw.org/news/2020/06/11/us-sets-sanctions-against-international-criminal-court.

[94] International Criminal Court officials sanctioned by US, BBC (Sept. 2, 2020), https://www.bbc.com/news/world-us-canada-54003527.

[95] Pranshu Verma & Marlise Simons, Reversing Trump, Biden Repeals Sanctions on Human Rights Prosecutor, N.Y. Times (Apr. 2, 2021), https://www.nytimes.com/2021/04/02/us/politics/biden-international-criminal-court-sanctions.html.

[96] Ned Price, Opposing International Criminal Court Attempts to Affirm Territorial Jurisdiction Over the Palestinian Situation, U.S. Dep’t of St. (Feb. 5, 2021), https://www.state.gov/opposing-international-criminal-court-attempts-to-affirm-territorial-jurisdiction-over-the-palestinian-situation/.

[97] Antony J. Blinken, The United States Opposes the ICC Investigation into the Palestinian Situation, U.S. Dep’t of St. (Mar. 3, 2021), https://www.state.gov/the-united-states-opposes-the-icc-investigation-into-the-palestinian-situation/; see also Sari Bashi, Biden Can’t Claim ‘Moral Leadership’ While Sanctioning the ICC, Foreign Pol’y (Mar. 3, 2021), https://foreignpolicy.com/2021/03/03/biden-cant-claim-moral-leadership-while-sanctioning-the-icc/.

[98] Antony J. Blinken, Ending Sanctions and Visa Restrictions against Personnel of the International Criminal Court, U.S. Dep’t of St. (Apr. 2, 2021), https://www.state.gov/ending-sanctions-and-visa-restrictions-against-personnel-of-the-international-criminal-court/.

[99] Owen Bowcott, ICC abandons inquiry into alleged British war crimes in Iraq, Guardian (Dec. 9, 2020), http://www.theguardian.com/uk-news/2020/dec/09/icc-abandons-inquiry-into-alleged-british-war-crimes-in-iraq.

[100] See generally Michael J. McNerney et al., U.S. Department of Defense Civilian Casualty Policies and Procedures: An Independent Assessment (2021), available at https://www.rand.org/pubs/research_reports/RRA418-1.html; Exception(s) to the Rule(s): Civilian Harm, Oversight, and Accountability in the Shadow Wars, Ctr. for Civilians in Conflict (Nov. 19, 2020), https://civiliansinconflict.org/wp-content/uploads/2020/11/CIVIC_US_Report_Drones_Final.pdf; Katherine Hawkins, Torture and the CIA’s Unaccountability Boards, Just Sec. (Feb. 5, 2015), https://www.justsecurity.org/19724/torture-cias-unaccountability-boards/.

[101] Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 801–946 (2020).

[102] 10 U.S.C. § 931c.

[103] U.S. service members are obligated to report any “possible, suspected, or alleged violation of the law of war, for which there is credible information, or conduct during any operation in the range of military operations that would constitute a violation of the law of war if it occurred during an armed conflict.” Dep’t of Army, FM 3-24/MCWP 3-33.5, Insurgencies and Countering Insurgencies, § 13, ¶ 45 (2014).

[104] Foreign Assistance Act of 1961 § 620M, 22 U.S.C. § 2378d (2020); 10 U.S.C. § 362 (2020).

[105] Daniel Mahanty, The “Leahy Law” Prohibiting US Assistance to Human Rights Abusers: Pulling Back the Curtain, Just Sec. (June 27, 2017), https://www.justsecurity.org/42578/leahy-law-prohibiting-assistance-human-rights-abusers-pulling-curtain/.

[106] Sarah Margon, The CIA’s grotesque secret: How it’s partnering with human rights abusers — and sparking blowback, Salon (Aug. 18, 2015), https://www.salon.com/2015/08/18/the_cias_grotesque_secret_how_its_partnering_with_human_rights_abusers_and_sparking_blowback/.

[107] Daniel Silverman, Too Late to Apologize? Collateral Damage, Post-Harm Compensation, and Insurgent Violence in Iraq, 74 Int’l Org. 853, 854–55 (2020).

[108] See generally Donald Stoker & Craig Whiteside, Blurred Lines: Gray-Zone Conflict and Hybrid War—Two Failures of American Strategic Thinking, 73 Naval War C. Rev. 12 (2020); Frank Hoffman, On Not-So-New Warfare: Political Warfare vs Hybrid Threats, War on Rocks (July 28, 2014), https://warontherocks.com/2014/07/on-not-so-new-warfare-political-warfare-vs-hybrid-threats/.

[109] Overt, rather than covert, support for armed groups can also help restrain armed group violence against civilians by increasing public scrutiny and the armed group’s awareness of it. See generally Arthur Stein, Committed sponsors: external support overtness and civilian targeting in civil wars, 28 Eur. J. Int’l Rel. 386 (2022).

[110] Robbie Gramer, Why Russia Just Withdrew from the ICC, Foreign Pol’y (Nov. 16, 2016), https://foreignpolicy.com/2016/11/16/why-russia-just-withdrew-from-icc-putin-treaty-ukraine-law/.

[111] The Uyghur Genocide: An Examination of China’s Breaches of the 1948 Genocide Convention, Newlines Inst. (Mar. 8, 2021), https://newlinesinstitute.org/uyghurs/the-uyghur-genocide-an-examination-of-chinas-breaches-of-the-1948-genocide-convention/.

[112] Remarks by President Biden on America’s Place in the World, White House (Feb. 4, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/02/04/remarks-by-president-biden-on-americas-place-in-the-world/.

[113] U.S. hypocrisy on matters of international law and human rights damages the country’s reputation and can undermine its credibility in criticizing abuses by other states and non-state actors. See generally Daryl Glaser, Does Hypocrisy Matter? The Case of US Foreign Policy, 32 Rev. Int’l Stud. 251, 261–67 (2006); Douglas A. Johnson et al., The Strategic Costs of Torture: How “Enhanced Interrogation” Hurt America, Foreign Aff., September/October 2016, at 121.

[114] See Andreas Krieg, Externalizing the burden of war: the Obama Doctrine and US foreign policy in the Middle East, 92 Int’l Aff. 97 (2016); Matthew Levitt, Rethinking U.S. Efforts on Counterterrorism: Toward a Sustainable Plan Two Decades After 9/11, 12 J. Nat’l Sec. L. & Pol’y 247, 257–65 (2022).

[115] Andrew S. Bowen, Coercive diplomacy and the Donbas: Explaining Russian strategy in Eastern Ukraine, 42 J. Strategic Stud. 312, 321–31 (2019).

[116] Dominic Tierney, The Future of Sino-U.S. Proxy War, Tex. Nat’l Sec. Rev., Spring 2021, at 49.

[117] Frank Hoffman & Andrew Orner, The Return of Great-Power Proxy Wars, War on Rocks (Sept. 2, 2021), https://warontherocks.com/2021/09/the-return-of-great-power-proxy-wars/; Remarks as Prepared for Delivery by Assistant to the President for Homeland Security, Dr. Liz Sherwood-Randall on the Future of the U.S. Counterterrorism Mission: Aligning Strategy, Policy, and Resources, White House (Sept. 9, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-assistant-to-the-president-for-homeland-security-dr-liz-sherwood-randall-on-the-future-of-the-u-s-counterterrorism-mission-aligning-strategy-policy-and-resources/.

[118] Brandon Schwartz, U.S. Privateering Is Legal, Proc., https://www.usni.org/magazines/proceedings/2020/april/us-privateering-legal (last visited July 5, 2020); Mark Cancian & Brandon Schwartz, Unleash the Privateers!, Proc., https://www.usni.org/magazines/proceedings/2020/april/unleash-privateers (last visited July 5, 2020); Christopher Booth & Walker Mills, Unfurl the Banner! Privateers and Commerce Raiding of China’s Merchant Fleet in Developing Markets, War on Rocks (Feb. 18, 2021), https://warontherocks.com/2021/02/unfurl-the-banner-privateers-and-commerce-raiding-of-chinas-merchant-fleet-in-developing-markets/.

[119] Detsch & Gramer, supra note 11.

[120] Hurst Hannum, International law says Putin’s war against Ukraine is illegal. Does that matter?, Conversation (Feb. 25, 2022), http://theconversation.com/international-law-says-putins-war-against-ukraine-is-illegal-does-that-matter-177438.

[121] See, e.g., Russia commits indiscriminate attacks during the invasion of Ukraine, Amnesty Int’l (Feb. 25, 2022), https://www.amnesty.org/en/latest/news/2022/02/russian-military-commits-indiscriminate-attacks-during-the-invasion-of-ukraine/; Ukraine: Russian Cluster Munition Hits Hospital, Hum. Rts. Watch (Feb. 25, 2022), https://www.hrw.org/news/2022/02/25/ukraine-russian-cluster-munition-hits-hospital; Amnesty International, Ukraine: “He’s not coming back”. War crimes in Northwest areas of Kyiv Oblast, Amnesty Int’l (May 6, 2022), https://www.amnesty.org/en/documents/eur50/5561/2022/en/.

[122] A similar argument could be made that supporting insurgents in Myanmar is justified and legal, given that the military toppled the elected government in a coup d’état and has since been engaging in widespread human rights violations, in addition to its prior genocide against the Rohingya Muslim minority. See generally Andrew Ong, Ethnic Armed Organisations in Post-Coup Myanmar: New Conversations Needed, ISEAS Yusof Ishak Inst. (June 11, 2021), https://www.iseas.edu.sg/wp-content/uploads/2021/05/ISEAS_Perspective_2021_79.pdf; Kaitlyn Robinson, To Support Democracy in Myanmar, Engage with Ethnic Armed Organizations, War on Rocks (Jan. 19, 2022), https://warontherocks.com/2022/01/to-support-democracy-in-myanmar-engage-with-ethnic-armed-organizations/.

[123] Katie Bo Lillis et al., What happens to weapons sent to Ukraine? The US doesn’t really know, CNN (Apr. 19, 2022), https://www.cnn.com/2022/04/19/politics/us-weapons-ukraine-intelligence/index.html.

[124] See generally Andreas Umland, Irregular Militias and Radical Nationalism in Post-Euromaydan Ukraine: The Prehistory and Emergence of the “Azov” Battalion in 2014, 31 Terrorism & Pol. Violence 105 (2019); Tim Hume, How a Far-Right Battalion Became a Part of Ukraine’s National Guard, Vice (Feb. 16, 2022), https://www.vice.com/en/article/3ab7dw/azov-battalion-ukraine-far-right.

[125] Christopher J. Dodd & John B. Bellinger III, How the U.S. can support a war crimes investigation into Russia, Washington Post (Apr. 5, 2022), https://www.washingtonpost.com/opinions/2022/04/05/us-international-criminal-court-russia-war-crimes-putin-ukraine/; see also Savage, supra note 91. Politicians presenting U.S. support for the ICC and assistance to it as an important step for protecting human rights could even help sway more Americans towards supporting joining the ICC. See Kelebogile Zvobgo, Human Rights versus National Interests: Shifting US Public Attitudes on the International Criminal Court, 63 Int’l Stud. Q. 1065, 1076–77 (2019).

[126] James Pattison, The Ethics of Arming Rebels, 29 Ethics & Int’l Aff. 455, 462–64 (2015).

[127] See generally Niklas Karlén, Turning off the Taps: The Termination of State Sponsorship, 31 Terrorism & Pol. Violence 733 (2019). On Afghanistan, see Dirkx, supra note 75, at 388–93.

[128] Kyle Atwell & Paul Bailey, Wanna Fight? Pushing Partners Aside in Afghanistan, War on Rocks (Oct. 11, 2021), https://warontherocks.com/2021/10/we-wanted-to-fight-incentivizing-advising-over-fighting-in-afghanistan-and-beyond/.

[129] See generally Barry R. Posen, Restraint: A New Foundation for U.S. Grand Strategy (2014).

[130] Plana, supra note 16; Oktay et al., supra note 16.

[131] See, e.g., Barnett, supra note 17; Friedman Lissner and Rapp-Hooper, supra note 17.

[132] See, e.g., Policy Roundtable: The Future of Progressive Foreign Policy, Tex. Nat’l Sec. Rev. (Dec. 4, 2018), https://tnsr.org/roundtable/policy-roundtable-the-future-of-progressive-foreign-policy/.

[133] See generally Michael Beckley, Rogue Superpower: Why This Could Be an Illiberal American Century, Foreign Aff., November/December 2020, at 73.

[134]  Remarks by President Biden on America’s Place in the World, supra note 112.

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*       Kai M. Thaler is Assistant Professor of Global Studies at the University of California, Santa Barbara, and affiliated faculty in Political Science. He conducts research on civil conflict, political violence, global security policy, and statebuilding, especially in Africa and Latin America. He is grateful to Jennifer Jacobs, Zachary Taylor, Jeffrey Thaler, and the HILJ Online editors for helpful comments.

Sam F. Halabi*

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Introduction

The devastating effects of the COVID-19 pandemic can be told in numbers. As of this writing, more than 4.5 million people worldwide have died, 219 million have been infected, and many face weeks, months, or years of “long COVID” recovery.^[1] For children, long COVID occurs for approximately ten to thirteen percent of cases, imposing potentially life-long disability.^[2] Economically, the productivity, job loss, and response costs exceed sixteen trillion dollars in the United States alone.^[3] The International Monetary Fund estimates that, through October 2020, the global cost stood at twenty-eight trillion dollars.^[4] Supply chain disruptions now vex every country in the world.

Nearly all governments agree that the numbers reflect a world that was poorly prepared when the new pathogen emerged and struggled to coordinate its response after the threat became clear. As a result, full recovery may be delayed by a decade or more.^[5] While vaccination rates have climbed to herd immunity thresholds in the wealthiest countries, ninety-five percent of the world’s population in low-income countries does not have access to a first dose.^[6] The World Health Organization (“WHO”) was disempowered from leading the global response and possessed few instruments to do so under the only existing international disease control agreement, the International Health Regulations (2005) (“IHR”), adopted after the global experience with SARS-CoV-1 in 2002–03.^[7]

Governments further agree that better coordination and communication between governments is necessary, but disagree on the form that improved coordination and communication should take. On March 30, 2021, the leaders of twenty-six countries, the WHO and the President of the European Council called for the World Health Assembly to consider the adoption of a pandemic treaty, given the glaring gaps in the national and global responses to the COVID-19 pandemic.^[8] In May 2021, the seventy-fourth session of the World Health Assembly took the extraordinary measure of calling a Special Session, scheduled for November 29–December 1, 2021, to consider precisely such a legal instrument.^[9] The United States has remained circumspect with regard to a formal treaty, publicly articulating support for a revision of the IHR (2005) and some improvements to governance, for example, more transparent decision-making about the declaration of emergencies and recommended measures, at the WHO, while remaining open to the development of a new international agreement.^[10] This Essay aims to clarify what the United States may and may not do under its domestic constitutional framework, both to inform its global partners and to shed light on how the U.S. Constitution structures international affairs during emergencies.

This analysis prioritizes what is possible. What the United States ultimately determines is in the interest of its citizens may differ. The United States, for example, may simply determine that a comprehensive and binding treaty is not in its interest. The issue of vaccine access has featured prominently in the global conversation leading to the declaration that a pandemic agreement may be necessary.^[11] Any visibility as to vaccine access and equity would cast the United States in a poor light, to say nothing of the substantive provisions of a treaty addressing vaccine access, which could affect the profitability and flexibility of companies based in the United States. Over the course of the pandemic, U.S.-based companies developed three of the four most successful vaccines and, in its contracts for their procurement, the U.S. government prohibited the possibility that doses might be shipped elsewhere, even to those countries that may be in desperate need.^[12] The United States may in fact favor the establishment of a new treaty, but insist on certain reforms at the WHO governance level before entrusting it with new and perhaps powerful authority to prevent, prepare for, and respond to, future pandemics.^[13] The United States may also be staking out a preliminary position of neutrality, so that even its willingness to join may secure benefits from its participation in negotiation.^[14]

Just as relevant is how the U.S. negotiating position will be shaped by its domestic constitutional framework. The U.S. Constitution charges the President with responsibility for serving as the voice of the country in international affairs, with an important role for Congress, and much less so the U.S. Supreme Court.^[15] Article I vests Congress with authority over most matters that require the raising and expenditure of revenues, the regulation of the armed forces, the definition of the content and relevance of international law, and the regulation of foreign commerce.^[16]

Article II vests authority with the President to negotiate treaties, although two-thirds of the Senate must concur with the treaty text in order for it to become law.^[17] Separately, Article II authorizes the Executive to “receive Ambassadors,” which is generally interpreted to mean that the President is entrusted with the authority to recognize foreign governments and relatedly, conduct diplomacy.^[18] The President is also the Commander-in-Chief, giving him independent authority with respect to national security.^[19]

With respect to the judiciary, Article III dedicates to the U.S. Supreme Court original jurisdiction over certain matters affecting foreign relations, but the Court largely plays a peripheral role in the formation and execution of foreign policy and avoids adjudication of “political questions” about foreign policy dedicated to Congress and the President.^[20] For example, the U.S. Supreme Court has determined that it is not competent to determine whether the U.S. Senate must concur with a President’s decision to exit a treaty, even though it is constitutionally clear they must do so in order to join the same treaty.^[21]

Despite the availability of a specific constitutional mechanism to govern treaty relations, the presidentially negotiated, Senate-confirmed treaty has fallen into desuetude. Since the Franklin D. Roosevelt administration, only six percent of international agreements have gone through the Senate ratification process.^[22] While the last Senate-confirmed treaty was the New START treaty with Russia, other agreements have been adopted through both chambers of Congress with the support of more than two-thirds of the Senate.^[23] It is clear from the composition and statements from current U.S. Senators that a pandemic treaty has no chance of achieving two-thirds concurrence of the chamber as it is now comprised.^[24]

Outside the treaty process, the President may nevertheless conclude agreements, including so-called congressional-legislative agreements accomplished with varying levels of assent by Congress, and sole executive agreements, concluded within the scope of the President’s Article II authority. These kinds of agreements have been used since the Founding and are the most likely routes to U.S. participation in an international pandemic agreement.

The United States has faced this situation before. It joined the Paris Climate Accords through negotiation by the President (through the Secretary of State) carefully crafting its legal position to fall within domestic authorities. The President enjoyed his widest authority for provisions governed by the U.N. Framework on Climate Change (which the Senate ratified in 1992) and the Clean Air Act (which Congress had adopted by large majorities in 1970).^[25] The President’s position was similarly strong with respect to provisions that affected information-sharing, which has been interpreted as authorized by Article II since the adoption of the U.S. Constitution.

The purpose of this Essay is to identify how the United States may join an international pandemic agreement, especially when both congressional chambers are so evenly divided, and one party has so clearly expressed its pessimism about a pandemic treaty as well as international agreements in general, leaving the most likely constitutional pathways presidential action based in existing statutory authorizations or the exercise of sole presidential authority under the U.S. Constitution.^[26]

I. The U.S. Constitutional Framework

This Part analyzes the constitutional framework for how the U.S. may enter into international agreements: the dedicated treaty process between the President and the Senate; explicit and implicit agreement between the President and both congressional chambers; and sole executive authority based on Article II powers.

A. Treaties

The U.S. Constitution authorizes the President to “make Treaties” provided that “two thirds of the Senators present concur.”^[27] Once properly adopted, treaties become binding federal law, just like statutes adopted through bicameral deliberation and signature by the President.^[28] While the importance of treaties as federal law is made clear in the constitutional text, especially the Supremacy Clause, the Founders never envisioned them as the exclusive means by which the United States would enter into international agreements. More importantly, the effect of treaties is legally divided between their internal effect, where they may impart individually enforceable rights, and their external effect, where they influence the relationship of the United States to international partners including both foreign governments and international organizations.^[29]

Because the Founders never intended for the Presidential-Senatorial treaty-making process to serve as the only channel for formalizing international commitments that could bind the United States internationally, they also addressed different forms of international agreement, particularly in Article I.^[30] The treaty process was intentionally arduous given the potential to create federal law without the House of Representatives.^[31] Agreements made with the consent of the Senate are historically rare. Nearly ninety percent of international agreements (approximately 15,000 agreements) that the United States has entered since World War II have been approved outside the constitutional treaty process.^[32]

B. Congressional-Executive Agreements

In addition to treaties, Article I, Section 10 of the U.S. Constitution speaks of “agreements,” “compacts,” “confederations,” and “alliances,” all of which the United States used from its earliest years as a constitutional republic. Fifty years from its founding, the United States concluded nearly thirty published executive agreements outside of the treaty process.^[33]

These other forms of approving international agreements fall into two general categories: congressional-executive (or legislative-executive) agreements and sole executive agreements, created under the President’s own constitutional authority to “take care” that the United States’ laws be faithfully enforced^[34] and pursuant to responsibilities collectively understood as the President’s foreign affairs power.^[35] Constitutionally, the President may enter into an executive agreement, which may be defined as a “treaty” under international law, even if it could not be used to justify enforceable rights vis-à-vis states or individuals within U.S. territory or as understood within the meaning of Article VI’s Supremacy Clause.^[36]

1.     Current Statutory Authority

When Congress adopts statutes, they may and often do shape the President’s authority to conduct diplomacy, for example authorizing sanctions, or encouraging support of international organizations. Congress has adopted a number of statutory provisions that authorize the President to undertake broad coordinating action to advance global health. Current statutory authorizations include language that the President, Secretary of State, and Secretary of Health and Human Services may consult when deliberating the content of an international pandemic agreement.

For example, when Congress authorized the United States to join the WHO, it recognized the “widespread prevalence, debilitating effects, and heavy toll in human life” of the “diseases of mankind,” and declared “it to be the policy of the United States to continue and strengthen mutual efforts among the nations for research against [such] diseases.”^[37]

Moreover, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 directed the President to “establish[] a roadmap to link investments in specific disease programs to the broader goals of strengthening health systems and infrastructure and to integrate and coordinate HIV/AIDS, tuberculosis, or malaria programs with other health or development programs, as appropriate.”^[38] Similarly, the Pandemic and All-Hazards Preparedness Act of 2006 and the Pandemic and All-Hazards and Advancing Innovation Act of 2019 provided broadly worded congressional authorizations for the United States to engage and support international organizations and partners with respect to national security threats posed by infectious and anti-microbial resistant diseases.^[39] All of this language could be used to justify specific commitments under a pandemic treaty.

This is almost precisely how President Obama joined the Paris Climate Accords in in 2016 (and how President Biden anchored rejoining in 2021). In negotiating the Paris Agreement, the Executive Branch based its authority upon (1) the President’s plenary constitutional power in the foreign affairs field; (2) federal legislation, particularly the Clean Air Act; and (3) existing treaties, most importantly the 1992 Framework Convention on Climate Change, which the United States under President George H.W. Bush joined with relatively rapid Senate consent.^[40] The text of the Paris Agreement distinguishes between the mandatory “shall”—indicating binding legal obligations—and the precatory “should”—indicating non-binding political statements.^[41] The U.S. delegation succeeded in tailoring the text to the scope of the President’s constitutional exercise of his authority as it was then interpreted.^[42]

2.     Advanced Congressional Authorization

Congress may also authorize the President’s conduct of diplomacy in advance. While current statutory authority provides one body of law through which the President may shape pandemic treaty provisions, an alternative route is to obtain advance authorization from Congress, by simple majorities, for broad authority leading to the pandemic negotiations.^[43] This is how trade agreements have been concluded for over a century.^[44] In 1890, Congress authorized the President to bargain over reciprocity in tariff reductions with foreign governments with no requirement of subsequent legislative implementation.^[45] In 1934, Congress authorized the President to not only bargain freely over tariff reductions, but to address other barriers to international trade and accomplish reductions through proclamation.^[46]

Congress could also adopt so-called fast-track authority used for more current international trade agreements. Fast-track authority is the delegation of authority by Congress ex ante so that the President may pick negotiating partners, set terms of accords, sign, and enter into them, draft implementing bills that advise the congressional process, limit debate, prohibit amendments, and abbreviate periods for up-or-down votes.^[47] This was the approach for the original North American Free Trade Agreement in 1993 and its revision as the United States-Mexico-Canada Agreement in 2018.^[48]

Such authority could be added to legislation currently circulating in Congress aimed at addressing pandemic preparedness and response. The Global Health Security Act of 2021 provides for activities to be conducted acting through the Director of the Centers for Disease Control and Prevention to combat SARS-CoV-2, COVID-19, and other emerging infectious disease threats globally, including efforts related to global health security, disease detection and response, health protection, immunization, and coordination on public health.^[49]

C. Sole Executive Agreements

Finally, the President enjoys authority under Article II to conduct foreign relations without any congressional authorization. Since at least 1996, the U.S. President has issued executive orders tying his authority over national security determinations to the threat posed by infectious diseases. In 1996, President Bill Clinton identified new and emerging infectious diseases as a national security threat and ordered interagency cooperation led by the U.S. Centers for Disease Control and Prevention.^[50] Most importantly, the order committed the United States to the revision of the IHR, at that time a relatively limited international instrument committed to the surveillance and quarantine of only six diseases.^[51]

On his first day in office, President Biden issued an executive order requiring the Assistant to the President for National Security Affairs (“APNSA”) to: “coordinate the Federal Government’s efforts to address such threats and to advise the President on the global response to and recovery from COVID-19, including matters regarding: the intersection of the COVID-19 response and other national security equities; global health security; engaging with and strengthening the World Health Organization; public health, access to healthcare, and the secondary impacts of COVID-19; and emerging biological risks and threats, whether naturally occurring, deliberate, or accidental.”^[52]

The United States joined the world’s most developed international infectious disease agreement, the IHR (2005), on the basis of its membership in the World Health Organization, and that body’s authority under Article 21 of its Constitution to adopt regulations in specific areas of international health delegated to it.^[53] Arguably, U.S. participation in the IHR included tacit authorization from Congress as well, but because Congress authorized U.S. entry into the WHO, there was no subsequent need for the President to independently seek congressional authorization for the IHR’s adoption.

Even had Congress not played a background role, the United States joined the IHR out of national security interests articulated by the Executive Branch. Over the course of the late 1990s and early 2000s, infectious disease threats to global security proliferated, as did efforts to hide or obfuscate them.^[54] The resurgence of cholera in South America, plague in India, and Ebola in Africa, as well as the emergence of HIV as a global pandemic, encouraged global unity in the belief that an international agreement was needed to address local infectious disease outbreaks that increasingly crossed international borders.^[55] In 2000, the U.N. Security Council recognized for the first time an infectious disease, HIV/AIDS, as an international peace and security matter.^[56] The precursor to the Security Council’s decision was the U.S. National Intelligence Council’s report emphasizing potential ramifications on international stability, which stated that “the persistent infectious disease burden is likely to aggravate and in some cases, may even provoke economic decay, social fragmentation and political destabilization in the hardest hit countries in the developing . . . world[].”^[57]

The President therefore possesses significant independent authority under the U.S. Constitution to address global disease threats to international security, although, as outlined above, he is limited with respect to his ability to dedicate financial resources. Indeed, the IHR itself does require commitments to strengthening the health system, advancing disease surveillance, and regulating of ports of entry, but the United States already had such systems in place when it joined.^[58] Outside of core disease detection and response capacities, the IHR largely committed the United States to information sharing, which has long been a proper source for sole executive action.^[59] The content and process of pandemic treaty negotiations will be shaped by current international agreements, including the IHR (2005), which the United States joined as a sole executive agreement through its accession to WHO authority.

II. The Content of the Pandemic Treaty and the Legal Pathways for U.S. Participation

The components of a pandemic treaty are still under intense negotiation. At the very least, such a treaty would include provisions related to surveillance for new and reemerging pathogens, access to vaccines, international biosafety, an international system for monitoring and compliance, and information sharing with respect to a number of classes of data including research on diagnostics, therapeutics and vaccines.^[60] Each of these aspects of the pandemic treaty will implicate a variety of sources of legal authority for the President to consult, if, as is likely, there is not sufficient support in the U.S. Senate for a binding treaty under Article II of the U.S. Constitution. The following issues have been frequently raised and, while not exhaustive, provide a representative list of issues the Executive will need to consider using the constitutional framework articulated above. The constitutional authorities described above will shape components of an agreement in the following ways.

A. Biosafety

The two leading theories regarding COVID-19’s origin are that the virus was transmitted from mammalian species to humans or through a leak from a biomedical research facility. Without engaging in the protracted debate as to origin of SARS-CoV-2 and prevention of future pandemics, an international agreement, even a non-binding one, may better prepare the world for the possibility of breaches in biosafety research with international ramifications. There are a finite number of research facilities worldwide that manage dangerous pathogens generally characterized as BSL-3 or BSL-4 in the laboratory context.^[61] Published international guidance documents governing biosafety practices, such as inspection and early warning technologies,^[62] could be codified in an international agreement.

With respect to U.S. participation, biosafety is an area where the President enjoys significant treaty and statutory authority. For example, the United States is already a party to the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, so any aspect of a pandemic treaty that implicated a dedicated corps of inspectors for so-called “dual-use” research would provide an independent source of authority for the United States to join.^[63] The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 similarly authorizes a number of measures the President, the Secretary of Health and Human Services, and the Secretary of Agriculture may take with international partners and organizations on biosafety matters.^[64]

B. Vaccine Access

The inequitable access to and distribution of COVID-19 vaccines constitutes the most important challenge facing the global COVID-19 response. Low- and middle-income countries asked to coordinate with wealthier countries and international organizations have lost nearly all trust in international legal instruments and actors as the investments they made in the IHR (2005) core capacities did not result in access to the most important medical intervention. Although both governments and public health professionals have confirmed that the world cannot fully reopen until the global population reaches herd immunity, wealthy countries continue to hoard vaccines and related technology.

The President’s authority over sharing finished vaccine doses, as opposed to the technology that makes them possible, is shaped by international agreements (although not Article II treaties) and existing statutory frameworks. The Defense Production Act authorizes the President, largely through executive orders, to direct private companies to prioritize orders from the federal government.^[65] The President is also empowered to “allocate materials, services, and facilities” for national defense purposes, and take actions to restrict hoarding of needed supplies.^[66] To bolster domestic production, the President may also offer loans or loan guarantees to companies, subject to an appropriation by Congress; make purchases or purchase commitments; and install equipment in government or private factories.^[67] As Rizvi and Kapczynski write, the scope of the DPA has expanded since its World War II origins to include “‘military or critical infrastructure assistance to any foreign nation,’ and ‘critical infrastructure assistance and protection’ (which includes systems and assets, the degradation of which would have a debilitating impact on ‘national public health’), as well as ‘emergency preparedness activities.’”^[68]

In 2011, the United States acceded to the Pandemic Influenza Preparedness Framework, which authorized the WHO to enter into agreements with academic institutions and pharmaceutical companies.^[69] In exchange for access to influenza samples submitted to the WHO’s Global Influenza Surveillance and Response System, companies agree to donate real-time production of vaccines.^[70] Currently, the agreement is limited to “pandemic influenza,” but part of the treaty negotiations may expand the agreement to include all pathogens with pandemic potential.^[71] As of 2021, seventy-one “standard material transfer agreements” (“SMTAs”) had been entered into by the WHO, twenty-nine of which promised benefits like real-time vaccine production.^[72] The United States could join other Member States to expand the PIP Framework to cover all pathogens with pandemic potential.

Not only could the United States join an Article 23 consensus expansion of the PIP Framework to all pathogens, as it did with the initial agreement, but it could use its statutory authority over technologies developed with its support to require that U.S.-funded biomedical companies share products or know-how with a global system. Pursuant to the U.S. Bayh-Dole Act of 1980, for example, inventions that receive federal funding belong to the U.S. government unless the recipients commit to commercialize the invention and agree to the government’s reservation of certain rights.^[73] These include rights to protect the public against non-use or unreasonable use of publicly funded inventions.^[74] One right is the government’s non-transferable right to royalty-free use of publicly funded inventions for or on behalf of the United States.^[75]

Under the Bayh-Dole Act, march-in rights are only to be used when (1) the contractor fails to take effective steps to achieve practical application of the invention or (2) they are necessary to alleviate health or safety needs which are “not reasonably satisfied.”^[76] No administration or executive agency has ever used these march-in rights and there has never been a successful petition for the use of march-in rights in the four decades of their existence.^[77] However, they may serve as a basis for U.S. support of such provisions in a new international agreement.^[78]

C. Intellectual Property

COVID-19 vaccines, especially the most efficacious of them produced in Europe and North America, are protected by a range of intellectual property protections: patents, trade secrets, and proprietary know-how essential to low-cost manufacturing elsewhere. The President enjoys wide authority, however, over the intellectual property protections that cover the ability to develop downstream diagnostics, therapeutics, and vaccines now concentrated in the wealthier countries in Europe, North America, and East Asia. One of the obvious ways to address intellectual property barriers to COVID-19 vaccine access is to, temporarily or permanently, do away with intellectual property protections for the technologies used to produce them. Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), the international agreement establishing high floors for intellectual property protection, for example twenty-year protections for patents, is one of the most important of these barriers.^[79]

When Congress authorized the United States to join TRIPS, it also allowed the President to waive provisions of the agreement without expressly requiring congressional action or approval before the U.S. Trade Representative (“USTR”) agreed to such waivers. If a proposed waiver “would substantially affect the rights or obligations of the United States under the WTO Agreement . . . or potentially entails a change in Federal or State law,” then the USTR must first seek advice from “appropriate congressional committees” before it votes on the waiver in the WTO.^[80] When the WTO approves a proposed waiver, the USTR submits a report describing the waiver to those congressional committees and consult with them regarding the report.^[81]

As such, the President is authorized under the current governing statute to issue broad waivers with respect to intellectual property protections for vaccine technologies. While there may be additional, complicating political factors, especially from domestic constituencies (for example, pharmaceutical companies), this aspect of U.S. engagement is already codified presidential authority.

D. Information Sharing

In order to even assess likely threats to national security and to perform functions envisioned by Article II, the President must have authority to gather, receive, and transmit information. The President has virtual plenary authority with respect to information necessary to inform national security decisions.^[82] Presidents also rely on other clauses to support their foreign policy actions, particularly those that bestow “executive power” and the role of “commander in chief of the army and navy” on the office. From this language springs a wide array of associated or “implied” powers. For instance, from the explicit power to appoint and receive ambassadors flows the implicit authority to recognize foreign governments and conduct diplomacy with other countries generally.^[83] From the commander-in-chief clause flows the power to use military force and collect foreign intelligence.^[84]

In United States v. Curtiss-Wright Corp., the U.S. Supreme Court held that President Franklin D. Roosevelt acted within his constitutional authority when he brought charges against the Curtiss-Wright Export Corporation for selling arms to Paraguay and Bolivia in violation of federal law.^[85] The President is “the sole organ of the federal government in the field of international relations,” Justice Sutherland wrote, on behalf of the Court.^[86] “[H]e, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of [national emergencies].”^[87] Thus, under Curtiss-Wright, the President’s authority under the Constitution during emergencies is plenary.

Under this and related precedents, the United States operated within maximum Article II authority in the context of information sharing under the Paris Climate Accords. Many of the binding obligations in the Paris Agreement involve reporting of emissions, progress in implementation, and accounting for emissions.^[88] As explained above, exchanging information with other states is a Constitutional power of the President as Chief Executive and the United States’ top diplomat, or the “sole organ” of the Nation in dealing with foreign governments. Therefore, even in the absence of express statutory or treaty authority, the President may engage in information exchange and cooperation with foreign governments.^[89]

Conclusion

The outcome of the World Health Assembly for the United States will depend not only on the priorities given to certain weaknesses in the global legal framework leading to the COVID-19 pandemic, but the constitutional framework that shapes the legal possibilities for what the President is authorized to include. As this Essay has shown, a pandemic treaty, at least one achieved through presidential signature and two-thirds concurrence by the Senate, is not likely. However, a significant body of law dating back to the U.S. entry into the WHO and independent executive authority open up possibilities for the United States to contribute to, and one day join, a legally binding international agreement on pandemic prevention and response. The President may carefully analyze existing statutory authorities to shape the U.S. position on biosafety, intellectual property, and access to vaccines. With respect to the sharing of information, the President enjoys significant Article II authority to negotiate provisions without congressional authorizations. Together, these constitutional constraints will guide the U.S. position on one or more international agreements governing pandemics as well as the specific provisions within each of them.

[1] Daniel E. Slotnik, The World’s Known Covid Death Toll Passes Four Million., N.Y. Times (July 8, 2021), https://www.nytimes.com/2021/07/08/world/covid-death-toll-four-million.html; Total number of global cases of coronavirus surpasses 219 million, Inter Press News (Sep. 2, 2021, 10:17 AM), https://www.interpressnews.ge/en/article/115416-total-number-of-global-cases-of-coronavirus-surpasses-219-million.

[2] Dyani Lewis, Long COVID and Kids: Scientists Race to Find Answers, Nature (July 14, 2021), https://www.nature.com/articles/d41586-021-01935-7.

[3] David M. Cutler & Lawrence H. Summers, The COVID-19 Pandemic and the $16 Trillion Virus, JAMA (Oct. 12, 2020), https://jamanetwork.com/journals/jama/fullarticle/2771764.

[4] Larry Elliott, IMF Estimates Global Covid Cost at $28tn in Lost Output, The Guardian (Oct. 13, 2020), https://www.theguardian.com/business/2020/oct/13/imf-covid-cost-world-economic-outlook.

[5] Org. for Econ. Co-op. & Dev., Coronavirus (COVID-19) Vaccines for Developing Countries: An Equal Shot at Recovery 5, 10–11 (2021), https://read.oecd-ilibrary.org/view/?ref=1060_1060300-enj5o5xnwj&title=Coronavirus-COVID-19-vaccines-for-developing-countries-An-equal-shot-at-recovery.

[6] Anna Rouw et al., Tracking Global COVID-19 Vaccine Equity, Kaiser Fam. Found. (Jul. 21, 2021), https://www.kff.org/coronavirus-covid-19/issue-brief/tracking-global-covid-19-vaccine-equity/.

[7] Stephen T. Green & Lorenzo Cladi, Rapid Response: Should the WHO’s Chronic Disempowerment and Impecuniousness Concern Us?, BMJ (Apr. 27, 2020), https://www.bmj.com/content/369/bmj.m1502/rr-1.

[8] Lawrence O. Gostin, Sam F. Halabi & Kevin A. Klock, An International Agreement on Pandemic Prevention and Preparedness, JAMA (Sept. 15, 2021), https://jamanetwork.com/journals/jama/fullarticle/2784418.

[9] World Health Org. [WHO], Special Session of the World Health Assembly to Consider Developing a WHO Convention, Agreement or Other International Instrument on Pandemic Preparedness and Response, ¶ 3, A74/A/CONF./7 (May 25, 2021), https://apps.who.int/gb/ebwha/pdf_files/WHA74/A74_ACONF7-en.pdf.

[10] Anthony J. Blinken & Xavier Becerra, Strengthening Global Health Security and Reforming the International Health Regulations, JAMA (Aug. 31, 2021), https://jamanetwork.com/journals/jama/fullarticle/2783866.

[11] WHO, supra note 9, ¶ 1; The World Must Learn from COVID before diving into a Pandemic Treaty, 592 Nature 165, 65–66 (noting the prominence of vaccine access as one of four key areas the pandemic treaty must address).

[12] Katherine Eban, “We Are Hoarding”: Why the U.S. Still Can’t Donate COVID-19 Vaccines to Countries in Need, Vanity Fair (Apr. 6, 2021), https://www.vanityfair.com/news/2021/04/why-the-us-still-cant-donate-covid-19-vaccines-to-countries-in-need.

[13] U.S. Proposal on Targeted Amendments to the International Health Regulations, 2021 (policy position on file with author).

[14] It has been a long-held tactic of the United States to participate in treaty negotiations, even if it ultimately never joins the treaty it helped draft. See Antonia Chayes, How American Treaty Behavior Threatens National Security, 33 Int’l Sec. 45 (2008). The U.N. Convention on the Law of the Sea is an archetypal case of such behavior. Id. See also U.S. Signature to the 1998 Rome Statute of the International Criminal Court (Dec. 31, 2000) (noting that the United States was signing with the intention to further influence the drafting of the final text).

[15] See, e.g., United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–55 (1952) (Jackson, J., concurring).

[16] U.S. Const. art. I, § 8.

[17] Id. art. II, § 2.

[18] Id. § 3.

[19] Id. § 2.

[20] Louis Henkin, Foreign Affairs and the Constitution 26–27 (1972); Atlee v. Richardson, 411 U.S. 911 (1973), aff’g Atlee v. Laird, 347 F. Supp. 689 (E.D. Pa. 1972).

[21] Goldwater v. Carter, 444 U.S. 996 (1979). While the Court considered the case non-justiciable under the posture presented to it, Justice Powell suggested that a valid Senate resolution contesting the President’s action may be justiciable. See id. at 998–1001 (Powell, J., concurring). Under current law, there is no official ruling on whether the President has the power to break a treaty without the approval of Congress, but, relatedly, it is likely that any subsequent Court would find the matter dedicated to the political branches.

[22] Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate 39 (2001), https://www.govinfo.gov/content/pkg/CPRT-106SPRT66922/pdf/CPRT-106SPRT66922.pdf.

[23] See, e.g., Free Trade Agreement, S. Kor.-U.S., Jun. 30, 2007, https://ustr.gov/trade-agreements/free-trade-agreements/korus-fta.

[24] Elaine Ruth Fletcher, United States Holds Back on Bold Move Toward Pandemic Treaty, Health Pol’y Watch (May 21, 2021), https://healthpolicy-watch.news/exclusive-us-still-holding-back-on-bold-move-toward-pandemic-treaty/.

[25] 42 U.S.C. §§ 7401–7671.

[26] 22 U.S.C. § 290e (“The Congress of the United States, recognizing that the diseases of mankind, because of their widespread prevalence, debilitating effects, and heavy toll in human life, constitute a major deterrent to the efforts of many peoples to develop their economic resources and productive capacities, and to improve their living conditions, declares it to be the policy of the United States to continue and strengthen mutual efforts among the nations for research against diseases such as heart disease and cancer. In furtherance of this policy, the Congress invites the World Health Organization to initiate studies looking toward the strengthening of research and related programs against these and other diseases common to mankind or unique to individual regions of the globe.”).

[27] U.S. Const. art. II, § 2.

[28] Id. art. VI.

[29] See Asakura v. City of Seattle, 265 U.S. 332, 342–43 (1924).

[30] Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1137 (1987).

[31] In Missouri v. Holland, the U.S. Supreme Court validated the use of the treaty process to regulate state authority over migratory birds which had been determined to be impermissible as an overreach of federal authority when adopted pursuant to statute. Missouri v. Holland, 252 U.S. 416 (1920). That decision was left undisturbed by Bond vs. United States, although in that decision the Supreme Court concluded that there must be a clear statement from Congress if the intent is to disturb the otherwise settled boundary between state and federal authority. Bond v. United States, 572 U.S. 844, 858–61 (2014).

[32] Nigel Purvis, The Case for Climate Protection Authority, 49 Va. J. Int’l L. 1007, 1018 (2009).

[33] Peter L. Fitzgerald, Executive Agreements and the Intent Behind the Treaty Power, 2 Hastings Const. L.Q. 757, 758 (1975).

[34] U.S. Const. art II, § 3.

[35] See id. §§ 1–3; U.S. Dep’t of State, 11 Foreign Affairs Manual § 723.2-2(C) (2006).

[36] See Annotation 12 – Article II, FindLaw, https://constitution.findlaw.com/article2/annotation12.html (last visited Mar. 23, 2022).

[37] 22 U.S.C. § 290e.

[38] United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. 7604, § 101(a)(3).

[39] Pandemic and All-Hazards Preparedness Act, Pub. L. No. 109-417, 120 Stat. 2831 (2006); Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019, Pub. L. No. 116-22, 133 Stat. 905 (2019).

[40] David A. Wirth, Is the Paris Agreement on Climate Change a Legitimate Exercise of the Executive Agreement Power?, Lawfare (Aug. 29, 2016), https://www.lawfareblog.com/paris-agreement-climate-change-legitimate-exercise-executive-agreement-power.

[41] Id.

[42] Id.

[43] Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l. L. 247, 283 (2012).

[44] Wallace McClure, International Executive Agreements 41, 83–92, 173–89 (1941).

[45] Tariff Act of 1890, § 3, 26 Stat. 567, 612.

[46] See Trade Expansion Act of 1962, 19 U.S.C. § 1821; Trade Act of 1974, as amended, 19 U.S.C. §§ 2111, 2115, 2131(b), 2435.

[47] 19 U.S.C. §§ 2191–2194.

[48] Laura Wright, Trade Promotion Authority; Fast Track for the Twenty-First Century, 12(3) Wm. & Mary Bill Rts. J. 979, 987 (2004) (analyzing this authority for NAFTA); Lisa M. Richman, The Investment Treaty Arbitration Review: NAFTA and USMCA: The Next Stage of the Saga, The L. Revs. (June 18, 2021), https://thelawreviews.co.uk/title/the-investment-treaty-arbitration-review/nafta-and-usmca-the-next-stage-of-the-saga (analyzing the authority for USMCA).

[49] Global Health Security Act of 2021, H.R. 391, 117th Cong. (2021).

[50] Presidential Decision Directive on Emerging Diseases 2, 4, PDD/NSTC-7 (June 12, 1996), https://irp.fas.org/offdocs/pdd/pdd-nstc-7.pdf.

[51] Id. at 5.

[52] Exec. Order No. 13987, 86 Fed. Reg. 7019 (Jan. 20, 2021).

[53] Constitution of the World Health Organization art. 21, July 22, 1946, 62 Stat. 2679, 14 U.N.T.S. 185.

[54] Don Noah & George Fidas, The Global Infectious Disease Threat and its Implications for the United States, 99 Nat’l Intel. Estimate 1, 5 (2000), https://www.dni.gov/files/documents/infectiousdiseases_2000.pdf (“New and reemerging infectious diseases will pose a rising global health threat and will complicate US and global security over the next 20 years.”); David E. Bloom & Daniel Cadarette, Infectious Disease Threats in the Twenty-First Century: Strengthening the Global Response, 10 Frontiers in Immunology (Mar. 28, 2019), https://www.frontiersin.org/articles/10.3389/fimmu.2019.00549/full (“While rapid transmission of resistant pathogens is unlikely to occur in the same way it may with pandemic threats, the proliferation of superbugs is making the world an increasingly risky place.”).

[55] Sam Halabi, Rebecca Katz & Amanda McClelland, International Institutions and Ebola Response: Learning from the 2017 Outbreak in the Democratic Republic of Congo, 64 St. Louis U. L.J. 91, 94 (2019).

[56] U.N. GAOR, 55th Sess., 4087 mtg., U.N. Doc. S/PV.4087 (Jan. 10, 2000); S.C. Res. 1308, preamble (July 17, 2000).

[57] Nat’l Intelligence Council, NIE 99-17D, The Global Infectious Disease Threat and Its Implications for the United States 9 (2000), https://www.dni.gov/files/documents/infectiousdiseases_2000.pdf; see also Alex de Waal, The Art of Medicine: HIV/AIDS and the Challenges of Security and Conflict, 375 Lancet 22, 22 (2010).

[58] International Health Regulations, art. 5 (surveillance), art. 28 (points of entry), Annex I (core capacities encompassing health systems), May 23, 2005, 2509 U.N.T.S. 79.

[59] Id. arts. 6–7 (notification and information sharing).

[60] Gostin, Halabi & Klock, supra note 8.

[61] See generally World Health Org., Laboratory Biosafety Manual (3d ed. 2004), https://www.who.int/csr/resources/publications/biosafety/Biosafety7.pdf.

[62] Id.

[63] The Laws of Armed Conflicts: A Collection of Conventions, Resolutions, and Other Documents 137–42 (Dietrich Schindler & Jirí Toman eds., 3d ed. 1988).

[64] See, e.g., Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, § 335(a)(4), 116 Stat. 594, 680 (2002).

[65] Defense Production Act of 1950, as Amended, 50 U.S.C. §§ 4501–4568.

[66] 50 U.S.C. §§ 4511–4512.

[67] Anshu Siripurapu, What Is the Defense Production Act?, Council on Foreign Rels. (last updated Dec. 22, 2021), https://www.cfr.org/in-brief/what-defense-production-act.

[68] Zain Rizvi, Jishian Ravinthiran & Amy Kapczynski, Sharing The Knowledge: How President Joe Biden Can Use the Defense Production Act to End the Pandemic Worldwide, Health Affs. (Aug. 6, 2021), https://www.healthaffairs.org/do/10.1377/forefront.20210804.101816/full/.

[69] The PIP Framework was enacted through an Article 23 WHA Recommendation. Those are generally achieved through consensus. The U.S. joined this consensus. Nat’l Acads. of Scis., Eng’g, & Med., The Development of the PIP Framework: Global Lessons on Equity and Fairness for Pandemic Preparedness, in Exploring Lessons Learned from a Century of Outbreaks: Readiness for 2030 (A. Nicholson et al. eds., 2019), https://www.ncbi.nlm.nih.gov/books/NBK544063/.

[70] World Health Org., Pandemic influenza preparedness framework for the sharing of influenza viruses and access to vaccines and other benefits 34 (2nd ed. 2022); see also Sam F. Halabi, Viral Sovereignty, Intellectual Property, and the Changing Global System for Sharing Pathogens for Infectious Disease Research, 28(1) Annals Health L. 101, 124 (2019)

[71] See World Health Assembly, Pandemic Influenza Preparedness: Sharing of Influenza Viruses and Access to Vaccines and Other Benefits, Res. WHA60.28 (May 23, 2007), https://www.who.int/csr/don/archive/disease/influenza/A60_R28-en.pdf.

[72] Standard Material Transfer Agreements 2 (SMTA2), World Health Org., https://www.who.int/initiatives/pandemic-influenza-preparedness-framework/standard-material-transfer-agreement-2-(smta2) (last visited Mar. 23, 2022).

[73] Bd. of Trs. of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011); Jordan Paradise, COVID-IP: Staring down the Bayh–Dole Act with 2020 Vision, 7 J. L. & Biosciences 1, 6 (2020).

[74] See Stephanie Nolen & Gay Stolberg, Pressure Grows on U.S. Companies to Share Covid Vaccine Technology, N.Y. Times (Sept. 22, 2021), https://www.nytimes.com/2021/09/22/us/politics/covid-vaccine-moderna-global.html.

[75] William O’Brien, March-in Rights Under the Bayh-Dole Act: The NIH’s Paper Tiger?, 43 Seton Hall L. Rev. 1403, 1404 (2013).

[76] Id.

[77] Id. at 1404–05.

[78] See Roger Kuan, Lyric Stephenson & Joan Wang, Life Sciences Considerations Regarding Compulsory Licensing, March-In Rights, and the Defense Production Act During COVID-19, 33 Intell. Prop. & Tech. L.J. 11 (2021).

[79] See generally, Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299 (1994).

[80] 19 U.S.C. §3532(b) (1994).

[81] 19 U.S.C. §3532(c), (d) (1994).

[82] Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988); see also James A. Baker, Intelligence Oversight, 45 Harv. J. on Legis. 199, 202–03 (2008); James E. Baker, In the Common Defense: National Security Law for Perilous Times 146 (2007). But see Louis Fisher, Congressional Access to National Security Information, 45 Harv. J. on Legis. 219, 230–32 (2008).

[83] Jennifer Trejo, Note, In the Eyes of the President: Supreme Court Holds Executive Branch Has Exclusive Power to Recognize Foreign Sovereigns, 69 SMU L. Rev. 291, 291 (2016).

[84] Michael D. Ramsey & Steve I. Vladeck, Common Interpretation: Commander in Chief Clause, Nat’l Const. Ctr., https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/345 (last visited Mar. 23, 2022).

[85] United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936).

[86] Id. at 320.

[87] Id.

[88] See, e.g., Paris Agreement to the United Nations Framework Convention on Climate Change, art. 4(8), Dec. 12, 2015, T.I.A.S. No. 16-1104 (“In communicating their nationally determined contributions, all Parties shall provide the information necessary for clarity, transparency and understanding in accordance with decision 1/CP.21 and any relevant decisions of the Conference of the Parties serving as the meeting of the Parties to this Agreement.”).

[89] See, e.g., Memorandum of Intent Concerning Transboundary Air Pollution, Can.-U.S., Aug. 5, 1980, T.I.A.S. No. 9856.

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*    Senior Scholar and Visiting Professor, O’Neill Institute for National and Global Health Law, Georgetown University Law Center; Senior Associate Vice-President for Health Policy and Ethics, Colorado State University; Professor, Colorado School of Public Health, J.D. Harvard, MPhil Oxford (St. Antony’s College), B.A., B.S. Kansas State University.

Shaiba Rather*

[Click here for PDF]

This Note centers Kashmir as a case study to illuminate the ways in which the law can and cannot offer respite for those in settler colonial regimes. In particular, it highlights how the international community has failed to accept Kashmir as under occupation and thus refused to extend the protections of jus in bello to its civilians.  While Kashmiris have been pushed out of the protections from international law in the past, this Note presents settler colonialism as an analytical lens that can potentially offer respite. It acknowledges that international law does not explicitly prohibit settler colonial conduct but highlights how advocates can couple their “legal work” with the rights that are established in international law to build their own opportunities for relief outside of the law. This piece provides two contributions to existing literature: it advances the very limited discussion of the international law of settler colonialism and strengthens the current understanding of the modes of oppression that exist in Kashmir.

Introduction

On December 14, 1960, the U.N. General Assembly issued a solemn proclamation in Resolution 1514: that the “speedy and unconditional end [to] colonialism in all its forms and manifestations” was a “necessity.”^[1] For the “subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, [was and is] contrary to the Charter of the United Nations and [was and is] an impediment to the promotion of world peace and co-operation.”^[2] It was this proclamation that the global community fondly remembers as the start of the decolonization era. Despite the moment’s grandeur, the modern global political climate suggests that this declaration from 1960 was far too ambitious and perhaps altogether deceptive. Traditional colonial empires superficially collapsed. But their undercurrents—the need to dominate the “other”—lingered. The result was that colonialism of the past did not crumble but instead persisted, evolved, and re-clothed itself in nations both new and old.

Settler colonialism is the General Assembly Resolution 1514’s modern enemy. Settler colonialism is premised on the state’s recruitment of a class of settlers whose goal is to not only occupy the land of the Indigenous but also to eliminate the Indigenous who stand in their way.^[3] Settler colonialism and colonialism are distinct, yet intertwined, modes of oppression. While colonizers say, “you, work for me,” settler colonizers say, “you, go away.”^[4] Still, at the core of both projects are migration and a relationship of ascendency.^[5]

Since 1960, settler colonialism has wreaked havoc on a number of global communities: from Indigenous people across the Americas, New Zealand, and Australia,^[6] to the Palestinians.^[7] And unfortunately, the global expanse of settler colonial forces has not slowed down. With the 2019 abrogation of Jammu and Kashmir’s semi-autonomous status in India, some scholars now fear that India’s relationship with the region has transitioned into a fully settler colonial one. Some, as I have previously argued,^[8] contend that settler colonialism narratives in Kashmir have persisted since well before the abrogation.  Regardless of the starting point of India’s settler colonial project in Kashmir, the fears for the future are the same: that India will recruit a class of non-Kashmiri settlers to change the predominantly Muslim demographic of the region.

This Note centers Kashmir as a case study to illuminate the ways in which the law can and cannot offer respite for those in settler colonial regimes. Given a settler state’s interest in preserving itself, domestic law’s use as a shield appears unlikely.^[9] This piece thus asks: What, if anything, can we make of international law?

After presenting context on the situation in Jammu and Kashmir in Part I, Part II discusses the ways international law has failed the region in the past. In particular, it highlights how the international community has failed to accept Kashmir as under occupation and has thus failed to extend the protections of jus in bello to its civilians. This Note then proceeds in Part III to present the settler colonialism framework as one that can potentially offer respite for Kashmiris outside of the traditional jus in bello framework.  Although literature on the subject remains limited, the approach offered by Professor Natsu Taylor Saito is a helpful starting point for understanding what tools currently exist in international law. In the final Part, this Note examines the strengths and weaknesses of the existing international legal framework on settler colonialism. While it acknowledges that international law does not explicitly prohibit settler colonial conduct, it recognizes that advocates can couple their “legal work” with the rights established in international law to build their own opportunities for relief outside of the law.

I. The Legacy of Partition

In August 1947, the Indian subcontinent comprised not only the familiar nations of India and Pakistan but also more than 500 “princely states” foreign to modern maps.^[10] The princely system relied on nested sovereignty, where princes exercised near-autonomy while still heeding the title of the British monarchy.^[11] Each chiefdom confronted a challenging question with the onset of 1947: How would, and should, their future manifest in a free Indian subcontinent?

For the majority of the princely states, the answer to this question was bifurcated: join Pakistan or India.^[12] Although the Viceroy of India Lord Mountbatten successfully persuaded nearly all of the princely states to align based on geography or religious demography, three states remained unfettered. Of these three, the snow-capped, Himalayan-crested state of Kashmir stood tall.

At the time, the state of Jammu and Kashmir neared the physical size of the United Kingdom and had a population of just over four million people.^[13] The region was culturally and topographically heterogenous, including what is now the predominantly Hindu low-hilled region of Jammu, the majority Muslim Valley of Kashmir, and the Buddhist dominated high-peaked Ladakh.^[14] What could have been three distinct states in and of themselves were unified under the regime of Dogra Rajput, a clan who stretched the state’s borders from Afghanistan to Tibet.^[15] Together, the heterogenous region was a notable powerhouse in the subcontinent. Prized for its naturally rich land and strategic geographic location,^[16] Kashmir captured the interest of both the infantile India and Pakistan.

However, Kashmir did not fit neatly into the framework for alignment.^[17] The state was not only predominantly Muslim yet ruled by a Hindu king, Maharaja Hari Singh, but also uniquely abutted both Indian and Pakistani frontiers.^[18] The King’s own preference for an independent Kashmir only further muddled the region’s future.^[19] Thus, when confronted with the question of accession, the Maharaja opted instead for a “standstill agreement,” leaving Kashmir with free movement and transport across both India and Pakistan without ceding any sovereignty.^[20]

What comes next remains as disputed as Kashmir’s present-day story. What is clear however is that the so-called standstill did not last very long. The agreed upon facts are the following: in October 1947, a mass of armed men invaded the region from the north, made their way to the capital, and launched an invasion of an ill-defended Kashmir.^[21] Unsettled still, and hotly debated, is why and how these raiders came to Kashmir.^[22] Some accounts characterize the invasion as Pakistani-orchestrated to secure Kashmir; others present an independent group rushing to save subjugated Muslims suffering under an oppressive Hindu rule in Kashmir.^[23] Regardless, the invasion forced Maharaja Singh’s hand—fearing for his ill-equipped state army, he turned to India for defensive support. India conditioned its support on Kashmir signing the Instrument of Accession, and the Maharaja agreed.^[24] Critical to that signing, however, was an agreement between Lord Mountbatten and Maharaja Singh that although India would provide Kashmir with military aid given the invasion, “as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.”^[25]

Despite assurances for a plebiscite from the Viceroy and later, the United Nations,^[26] such an inquiry never took place. Instead, select Kashmiri political leaders continued their negotiations with the Indian national government, eventually crafting Article 370 of the Indian Constitution in 1950.

Article 370 crystallized Kashmir’s uniquely semi-autonomous status. Notably, Article 370 curtailed the application of the Indian Constitution and the national government’s powers to the domains specified in the Instrument of Accession: defense, external affairs, and communication.^[27] While it allowed for other constitutional provisions to discretionarily apply to Kashmir, it required not just the President’s notification but critically the approval from the “Constituent Assembly of the State.”^[28] Similarly, Article 370 could only be deemed inoperative with the state assembly’s recommendation.^[29] It was with the powers vested in Article 370 that Kashmir adopted Article 35A to the Indian Constitution,^[30] which empowered the state legislature to both define the “permanent residents” of the state and attach specific privileges, like the ownership of land, to such residency.^[31]

The region’s autonomy grew beyond Article 370, manifesting in the terms of its own state Constitution as well.^[32] These terms included the creation of Kashmir’s own Prime Minister-ship and a unique state flag.^[33] Ultimately, Kashmir’s legal regime empowered it to block the application of federal legislation in its own boundaries, limit the ownership of land to Kashmiri natives, and safeguard its Muslim majority demographic.^[34]

However, Kashmir’s promised autonomy was whittled to a legal fiction. From the reduction of Kashmir’s Prime Minister to a Chief Minister to the extension of a majority of the articles of the Indian Constitution to the state,^[35] Article 370 was more a symbol of Kashmir’s desired sovereignty than the sword championing it. This whittled autonomy, apexed by the Indian-rigged state elections in 1989,^[36] amplified a Kashmiri freedom struggle that had existed even before Partition.^[37] However, it also launched an intense counter-insurgency strategy from the Indian state, one which was facilitated by the deployment of hundreds of thousands of troops that secured Kashmir’s title as one of the most densely militarized zones in the world.^[38]

Almost two years ago, the Indian government delivered its final blow to Kashmir’s autonomy. On August 5th, 2019, the Indian government—under the leadership of the Bharatiya Janata Party (BJP)—abrogated Articles 370 and 35A of the Indian Constitution.^[39] This legal strike was not without an Indian-orchestrated brutal crackdown in Kashmir, including but not limited to: enforcing a curfew, blockading communications arbitrarily detaining civilians, limiting civilian access to basic necessities like medical care, disappearing civilians, and conducting torture and extrajudicial killings.^[40] The move both eliminated the region’s status as a state and overturned provisions that shielded Kashmir from land purchases made by non-Kashmiris. Post August 5th, Jammu and Kashmir was officially “for sale . . . .”^[41]

II. Kashimir’s History with International Law

The Third World Approaches to International Law (TWAIL) have highlighted international law’s impotence writ large. In particular, the school has critiqued the regime for its dubious origins: colonialism.^[42] Core to states’ imperial project and thus the creation of international law was a “civilizing mission,” where states justified their casting aside of “the other.”^[43] This dynamic has only been reproduced in a “supposedly non-imperial world” and its international order.^[44] The result—as seen by TWAIL scholars—is that international law is strapped by the sovereignty doctrine, where “states are the principal actors . . . bound only by that to which they have consented.”^[45]

The primacy of state sovereignty has been at the root of Kashmir’s tortured history with international law. Following the 1947 invasion, Kashmir was the first inter-state conflict discussed at the United Nations Security Council (UNSC).^[46] Brought through Article 35 of the UN Charter, India sought the aid of the UNSC in enforcing the withdrawal of Pakistani troops from “a State which acceded to the Dominion of India.”^[47] Pakistan responded with its own counter-claims, accusing India of waging a genocide against Muslims in parts of India and forcing Kashmir’s accession by fraud and violence.^[48] Pakistan made a number of requests of the UNSC, but of note, it asked that the UNSC coordinate a cessation of fighting, ordering the withdrawal of outsiders in Kashmir, and hold a plebiscite in Kashmir “as to whether the State shall accede to Pakistan or to India.”^[49] Thus, in the aftermath of decolonization, Kashmir was not its own sovereign but rather the home to a “dispute”^[50] between warring India and Pakistan.

From 1948 to 1971, the UNSC issued a series of increasingly watered-down resolutions on Kashmir.^[51] What began as a firm call for a “free and impartial plebiscite”^[52] ended with a jockey game between India and Pakistan over who erred first.^[53] Although the “India-Pakistan Question” remains on the UNSC agenda as a matter of which the “Security Council [is] currently seized,”^[54] it functions as nothing more than a placeholder. The “Kashmir dispute” is at best a bilateral issue and at worst, an internal one.^[55] To this day, no plebiscite has taken place.

Kashmir’s frayed relationship with international law does not stop with hollowed UNSC resolutions. Despite scholars robustly arguing for the application of the law of occupation to Kashmir,^[56] the international community has resisted such a classification. As Critical Kashmir Studies scholar Haley Duschinski explains, the stopping block is typically Kashmir’s partition history.^[57] Those unwilling to apply the occupation law reason that Kashmir, by way of signing the Instrument of Accession, is integral to the territory of the Indian state.^[58]

The denial of the application of international humanitarian law to Kashmir has been a large blow to its freedom struggle generally. The benefits of this regime are clear: unlike other areas of international law, the rules are bright lined and concretized.^[59] Without the recognition of the unlawful occupation of Kashmiri soil, India has been able to portray a different narrative on the ground. The intense military presence in Kashmir does not represent occupying powers but rather components of a necessary counter-insurgency strategy. Likewise, the use of force to suppress unrest is, once again, an internal matter rather than one of international import.  India, like other states, has resisted any classification as an occupying force and instead, has promoted what some scholars call a de facto occupational constitutionalism, where foreign dominance and control are legalized through domestic mechanisms.^[60] As a result, international law has largely left Kashmiris to fend for themselves within the bounds of the Indian state.

III. International Law’s Existing Tools Against Settler Colonialism

The lens of settler colonialism can shift the focus from Kashmir’s debated accession history to the less disputed threat to their land and people. Thus, where occupation law falters, the lens of settler colonialism can supplant. The question then arises—where are such protections in international law?

Unfortunately, articles discussing the protective value of international law in settler colonial regimes are limited. However, Professor Natsu Taylor Saito has discussed the application of international law as it relates to the settler colonial projects waged against Indigenous persons and people of color in the United States.^[61] This part builds on her analysis in the context of the Kashmiri struggle in India. Ultimately, international law, as it currently exists, does not prohibit “settler colonialism” by name. Yet, it does supply key legal principles that offer protections more expansive than those that typically exist within a nation. This part turns to a number of different areas of international law—first, key framing principles; then, the rights of the Indigenous; and finally, the right to self-determination—to present the existing tools available to those colonized in settler regimes today.

A. Framing principles

Human rights law operates with two key principles in the background: the preservation of human dignity and the prohibition on discrimination. Human dignity is often recognized as a precursor to the realization of other rights.^[62] This principle strikes at the core of the settler regime: “the coercive rule of one or the few over the many is incompatible with a due respect for the dignity of the person.”^[63]

International law explicitly creates a prohibition on discrimination and reaffirms that prohibition across conventions.^[64] In particular, the two core human rights treaties, the International Covenant on Civil and Political Rights (ICCPR)^[65] and the International Covenant on Economic, Social and Cultural Rights (ICESCR)^[66] bind India on this front by way of ratification.^[67] The anti-discrimination right extends to a broad category of persons.^[68] The ICCPR even goes so far as to enshrine rights protecting against the forced assimilation of minorities,^[69] reflecting concerns over erasure. More simply, the principle of anti-discrimination fights the creation of the Indigenous other.^[70]

B. Rights of Indigenous Peoples

Following several decades of robust advocacy, the UN passed the Declaration on the Rights of Indigenous Peoples (UNDRIP),^[71] which received India’s vote.^[72] While there is no authoritative definition of Indigenous populations in international law, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed the following indicators for indigeneity: historical continuity; distinctiveness; non-dominance; and a determination to pass their ancestral territories and culture to future generations.^[73] But above all, “self-identification as Indigenous or tribal” is the fundamental criterion.^[74] Kashmiris have not only consistently self-identified as a distinct political entity,^[75] but they have also organized around Kashmiriyat, a culture which is comprised of a “love of the homeland (kashir) and common speech (koshur).”^[76]

UNDRIP,^[77] although a non-binding declaration,^[78] rhetorically combats the logic of elimination driving settler colonial projects. It reinforces the right of Indigenous communities to maintain their cultures and prohibits forced assimilation and displacement,^[79] both of which, as Saito notes, are powerful for ensuring the protection of Indigenous resources and lands.^[80] However, the Declaration is most dilute as it relates to recognizing Indigenous sovereignty—recognizing the explicit right of self-determination for Indigenous people but failing to require the realization of such a right by states.^[81]

Although the Indigenous rights framework may not be as comprehensive as the laws of war governing occupation, they are “arguably more comprehensive than international legal instruments associated with minorities”^[82] and can therefore be an important resource for Kashmiri advocates. However, UNDRIP, notably, is a declaration and not a treaty, thus giving it no binding power under international law. While some persuasive arguments have been made to UNDRIP’s customary, and thus binding status, they are not widely accepted.^[83]

C. Right to Self-Determination

The right to self-determination—that is the peoples’ right to its own sovereignty—is arguably the most crucial element for release from a settler colonial regime. In some ways, international law has glorified this right the most, with its cardinal articulation as one of the “purposes” of the UN Charter itself.^[84] This purpose was given muster with the passage of the Declaration on the Granting of Independence to Colonial Countries and Peoples, which called for the “the speedy end [of] colonialism in all its forms and manifestations [to be a] necessity.”^[85]

This unabashed right to self-determination has narrowed in its scope since the “Decolonization Era.” Today, the right to self-determination is divided into internal and external forms. The more widely applicable form is the internal one, which entails guaranteeing socio-political rights to ensure autonomy for peoples within a state.^[86] External self-determination, where the result is the drawing of new international boundaries,^[87] has been limited to the extreme cases of “alien subjugation” and traditional colonial regimes as they existed in the past.^[88] Although some jurists suggest that the right may exist where self-determination is blocked internally,^[89] there has been no authoritative interpretation on this matter.

As a threshold matter, both internal and external rights to self-determination are limited to “peoples.” Similar to the definition of Indigenous peoples, “peoples” in the context of self-determination is not defined by an international treaty. It is generally accepted that the “peoples” determination is both subjective and objective, often including a shared belief in being a unit as well as actually sharing things like race, culture, and ethnicity.^[90] In defending themselves from claims to self-determination, settler states typically argue that the population is not a “people,” that only geographically distinct territories warrant decolonization, and that, regardless, these matters are internal affairs.^[91]  However, Saito, by looking at self-determination from the bottom-up, debunks these defenses.^[92]

Self-determination is arguably the most crucial element for release from a settler colonial regime. However, its dilution in the law is the product of the tension it straddles. The right to self-determination toes the line between respecting the rights of subjugated people and upsetting uti possidetis juris, the preference for the territorial status quo in the name of stability.^[93] Notably, and despite this friction, international law still emphasizes that it is only “by virtue of that right [to self-determination]” that other widely accepted human rights can have meaning.^[94]

IV. Working for Remedies

Given international law’s colonial origins,^[95] how can we expect the principles laid out above to protect against settler colonial projects? The answer is not an easy one, and it might in fact be we cannot.

Kashmiris, like many in settler colonial states, are trapped in oppressive domestic regimes. Their oppressor states spin narratives of “internal affairs,” escaping the protections and limitations of the law of occupation and jus in bello more generally. International legal principles, like the ones above, may dismiss settler conduct as normatively wrong but fail to provide any remedial bite. The result? Kashmiris and those similarly colonized by settler states have fallen through the cracks of international legal regime.

However, dismissing international law entirely may not be the answer either. While it may be limited due to its origins, the current international legal regime at least evinces this: native peoples combatting settler colonial states are empowered with rights recognized by the international framework. It is a framework that calls for decolonization and recognizes the right to self-determination of peoples. It is one that lifts up the shared culture, identity, and collectively-owned land and calls for their preservation. It is the vesting of these rights that shifts our original question to a more appropriate one—how can Kashmiris use these rights to not just resist but launch their decolonization? And perhaps, how can they reimagine a new regime altogether?

Decolonization of settler colonial states requires, then, what Professor Duncan Kennedy initially coined^[96] and Professor Noura Erakat later deploys in the context of Palestine,^[97] engaging in “legal work.” “Legal work,” at its core, entails an effort on the part of the worker to mold a legal regime to their benefit.^[98] At this stage, the existing international principles described above are embedded in a weak enforcement regime with little binding power.^[99] But with “legal work,” as Kennedy explains, the worker can “transform an initial apprehension of what the system of norms requires . . . so that a new apprehension of the system . . . will correspond to the extra-juristic preferences of the interpretive worker.”^[100]

While there is no “blueprint” for the decolonization of a settler regime, one thing is clear: it must be crafted from the hands of the oppressed.^[101] Kashmiris, by engaging in “legal work” with the principles laid out above, can reinvigorate their struggle at the international stage. For example, by organizing around these rights—of indigeneity and more generally peoplehood— advocates can better illuminate the parallels between the Kashmiri pro-freedom movement and that of the Palestinians or the Indigenous communities in Australia and New Zealand.^[102] Both of the movements have received more concretized legal support in the international order, like large recognition for their independent statehood^[103] and the benefits of the passage of UNDRIP respectively. Working within the settler colonialism framework can also shift conversations away from the law of occupation, which the international community has resisted.^[104] Principles of indigeneity can instead focus the discussion on the less disputed threat to Kashmiri land and people.

Activist can utilize these principles to imbue their work with a newfound sense of urgency. Taken to its end, the settler logic warns of a full, physical and violent elimination of the native. It is this elimination that UNDRIP itself explicitly warns and protects against.^[105] As a result, the question of genocide—prohibited by international law^[106]—lurks behind any discussion of settler colonialism.^[107] Kashmir itself is no stranger to these concerns, particularly in the aftermath of the abrogation.^[108]

By repositioning itself in the settler colonial narrative, the Kashmiri freedom movement can use the concerns articulated in UNDRIP to illuminate India’s seemingly normal actions as insidious. These principles provide the language for why emerging “neighborhoods” or changes in title may be problematic.^[109] Having this language can also illuminate new acts of resistance that may be necessary, like discouraging Indians from buying land in the region^[110] or larger Boycott, Divestment and Sanctions movements like in Palestine. Moreover, exposing this urgency—stopping the settler colonial project before it is too late—can itself “create[] the imperatives of decolonization.”^[111]

Conclusion

The fight against settler colonialism has been no stranger to the benefits of the “legal work” of the colonized. Indigenous movements have made great strides in decolonizing domestic legal spaces like those in Canada,^[112] and pushed international courts, like the Inter-American Court of Human Rights, to recognizing the principality of land to Indigenous communities as a “material and spiritual element.”^[113] In fact, it was only from several decades of intense advocacy that UNDRIP was even born.

Thus, the fact that international law does not itself carry explicit legal remedies may be secondary to the fact that it does vest Kashmiris with rights relevant to settler colonial realities. Indigenous communities do in fact have rights recognized by the law. “[T]aking up the struggle for freedom,” particularly around the framework of settler colonialism, is a fundamental way for Kashmiris to “assert [their] international personality,” and more fundamentally, their identity as people protected by international law.^[114] Whether India or other settler colonial states heed activism, their sovereignty, “inherent in every people,” will continue to exist regardless of whether India or the international order is willing to recognize them at this moment.^[115] Thus, although creating an international legal order that penalizes settler colonial states may require radical reimagination, creating an international legal order that acknowledges the wrongs of a settler regime and vests rights within the wronged requires much less.

However, as the settler colonized engage in “legal work” to reimagine their own relief, we should ask whether this is how we want our international legal system to operate. Without explicit remedies for settler colonial conduct in existing international law, those suffering under oppressive regimes now have the additional labor of crafting their own relief. They must engage in the legal work while also protecting their culture, their land, and their people. Are these cracks in the international legal system by design? Or the mere reality of true decolonization?

[1]      G.A. Res. 1514 (XV) (Dec. 14, 1960).

[2]      Id.

[3]      See Patrick Wolfe, Settler Colonialism and the Elimination of the Native, 8 J. Genocide Rsch. 387, 388 (2006).

[4]      Lorenzo Veracini, Introducing: Settler Colonial Studies, 1 Settler Colonial Stud. 1, 1 (2011).

[5]      Id.

[6]      See generally A. Grenfell Price, White Settlers and Native Peoples (1950) (comparing the effects of white settler colonialism on Indigenous populations of North America, New Zealand, and Australia).

[7]      See generally, e.g., Maxime Rodinson, Israel: A Colonial-Settler State? (1973); Nadim N. Rouhana & Areej Sabbagh-Khoury, Settler-Colonial Citizenship: Conceptualizing the Relationship Between Israel and Its Palestinian Citizens, 5 Settler Colonial Stud. 205 (2015).

[8]      See Note, From Domicile to Dominion: India’s Settler Colonial Agenda in Kashmir, 134 Harv. L. Rev. 2530 (2021).

[9]      See Natsu Taylor Saito, Settler Colonialism, Race, and the Law 167 (Ediberto Roman ed., 2020) (“States, as political constructs, have little if any incentive to recognize the rights of minority groups or peoples who are colonized, internally or externally.”).

[10]    Ramachandra Guha, India After Gandhi: The History of the World’s Largest Democracy 36–37 (2008).

[11]     Id.

[12]     See Neera Chandhoke, Contested Secessions: Rights, Self-determination, Democracy, and Kashmir 19 (2012).

[13]     See Guha, supra note 10, at 59.

[14]    See id. at 37.

[15]     Id.

[16]    See Chandhoke, supra note 12.

[17]     See Matthew J. Webb, Escaping History or Merely Rewriting It? The Significance of Kashmir’s Accession to Its Political Future, 20 Contemp. S. Asia 471, 477 (2012).

[18]    Guha, supra note 10, at 60.

[19]    Id. at 64.

[20]    See Webb, supra note 17.

[21]     The Maharaja’s Letter to the Governor-General of India, Lord Mountbatten (Oct. 26, 1947), reprinted in A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir 41–42 (2011).

[22]    Guha, supra note 10, at 64–65.

[23]    Id.

[24]    Note that the Maharaja’s signing of the Instrument of Accession is also contested, with scholars arguing that the accession was induced through false promises. See, e.g., Chandhoke, supra note 12, at 101.

[25]    Letters between Lord Mountbatten and Maharaja Singh suggest that although India would aid in Kashmir’s military aid given the invasion, “as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.” Letter from Governor-General, India, Delhi, to Maharaja Sahib (Oct. 27, 1947), reprinted in Noorani, supra note 21, at 43 [hereinafter Letter from Governor-General].

[26]    Infra Part II.

[27]     Constitution of India art. 370, cl. 1(a)–(b).

[28]    Id. cl. 3.

[29]    Id.

[30]    Ministry of Law, Constitution (Application to Jammu and Kashmir) Order, 1954, C.O. 48 (Issued on May 14, 1954).

[31]     Id. pt. 4, cl. (j). Other states in India have similar restrictions on land ownership as described in Vakasha Sachdev, Despite J&K Changes, You Still Can’t Buy Land in These States, The Quint (Oct. 29, 2020), https://www.thequint.com/news/india/jammu-kashmir-land-laws-amended-other-states-where-outsiders-cant-purchase-property-himachal-sikkim-arunachal-tribal-areas [https://perma.cc/N3ES-U6N9].

[32]    Constitution of Jammu and Kashmir Nov. 17, 1956, arts. 3–5.

[33]    Id. arts. 36, 144.

[34]    Haseeb A. Drabu, Modi’s Majoritarian March to Kashmir, N.Y. Times (Aug. 8, 2019), https://www.nytimes.com/2019/08/08/opinion/modis-majoritarian-march-to-kashmir.html [https://perma.cc/U9W5-W3ZM].

[35]    See Angana P. Chatterji, Kashmir: A Place Without Rights, Just Sec. (Aug. 5, 2020), https://www.justsecurity.org/71840/kashmir-a-place-without-rights [https://perma.cc/G4EB-8695].

[36]    See generally Sten Widmalm, The Rise and Fall of Democracy in Jammu and Kashmir, 37 Asian Surv. 1005 (1997) (detailing notable and perceived-as-rigged elections in Kashmir).

[37]    See generally Mridu Rai, Hindu Rulers, Muslim Subjects 224–87 (2019) (discussing Kashmiri political mobilization against the “Hindu State” under the ruling dynasty).

[38]    See Jammu Kashmir Coal. of Civ. Soc’y, Structures of Violence: The Indian State in Jammu and Kashmir 36–37, 75 (2015).

[39]    India Revokes Kashmir’s Special Status, Al Jazeera (Sept. 4, 2019), https://www.aljazeera.com/news/2019/09/india-revokes-kashmir-special-status-190904143838166.html [https://perma.cc/DN2H-FELR].

[40]    See Kashmir: Curfew-Like Restrictions Imposed on Movement of People, India Today (Aug. 5, 2019), https://www.indiatoday.in/india/story/jammu-and-kashmir-curfew-section-144-imposed-1577218-2019-08-05 [https://perma.cc/8LMP-2KAB].

[41]     Omar Abdullah (@OmarAbdullah), Twitter (Oct. 27, 2020, 4:06 AM), https://twitter.com/OmarAbdullah/status/1321015482544054273 [https://perma.cc/TSN7-994N].

[42]    See Antony Anghie, Core Imperialism, Sovereignty and the Making of International Law 3 (2005).

[43]    Id. at 311–12.

[44]    Id. at 310–11.

[45]    Id. at 33.

[46]    Rakesh Ankit, Britain and Kashmir, 1948: “The Arena of the UN”, 24 Dipl. & Statecraft 273, 273 (2013).

[47]    Stephen P. Westcott, The Case of UN Involvement in Jammu and Kashmir, E-Int’l Rels. 1, 4 (2020), https://www.e-ir.info/pdf/81046 [https://perma.cc/F2SC-DS2S].

[48]    Brian R. Farrell, The Security Council and Kashmir, 22 Transnat’l L. & Contemp. Probs. 343, 346 (2014).

[49]    Minister of Foreign Affs. of Pakistan, Letter dated Jan. 15, 1948 from the Minister of Foreign Affairs of Pakistan to the Secretary-General, U.N. Doc. S/646 (Jan. 15, 1948).

[50]    S.C. Res. 39 (Jan. 20, 1948).

[51]     See generally Farrell, supra note 48 (for a detailed history of Security Council action on Kashmir).

[52]    S.C. Res. 47 (Apr. 21, 1948).

[53]    See Farrell, supra note 48, at 354–55.

[54]    Ghulam Nabi Fai, Kashmir and the UN Security Council, Anadolu Agency (Sept. 12, 2020), https://www.aa.com.tr/en/analysis/kashmir-and-the-un-security-council/1971039 [https://perma.cc/N4BJ-3L29].

[55]    Geeta Mohan, Kashmir a bilateral issue, India tells US after Trump offers help, India Today (Jan. 22, 2020), https://www.indiatoday.in/india/story/kashmir-a-bilateral-issue-india-tells-us-after-trump-offers-help-1639126-2020-01-22 [https://perma.cc/YC3P-6SXU].

[56]    See generally Nosheen Ali et al., Geographies of Occupation in South Asia, 45 Feminist Stud. 574 (2019); Mona Bhan et al., “Rebels of the Streets”: Violence, Protest, and Freedom in Kashmir, in Resisting Occupation in Kashmir 1, 5 (Haley Duschinski et al. eds., 2019); Haley Duschinski & Shrimoyee Nandini Ghosh, Constituting the Occupation: Preventive Detention and Permanent Emergency in Kashmir, 49 J. Legal Pluralism & Unofficial L. 314 (2017).

[57]    Duschinski & Ghosh, supra note 56, at 315–16.

[58]    Id.

[59]    See Breven C. Parsons, Moving the Law of Occupation into the Twenty-First Century, 57 Naval L. Rev. 1, 5–8 (2009) (discussing the law of occupation’s robust treaty framework but noting how it’s been practically undermined).

[60]    Duschinski & Ghosh, supra note 56, at 318.

[61]    See generally Saito, supra note 9.

[62]    See International Covenant on Civil and Political Rights, preamble, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Covenant on Economic, Social, and Cultural Rights, preamble, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR] (“[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”).

[63]    Oscar Schachter, Human Dignity as A Normative Concept, 77 Am. J. Int’l L. 848, 850 (1983).

[64]    See U.N. Charter art. 1(3); ICCPR, arts. 2, 7; ICESCR, art. 2(2).

[65]    ICCPR, arts. 2(1), 26.

[66]    ICESCR, art. 2(2).

[67]    Ratification Status for India, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=79&Lang=EN [https://perma.cc/9BZZ-M8VW] (last visited May 2, 2021).

[68]    ICCPR, art. 26 (protecting “discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”)

[69]    ICCPR, art. 27 (“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”)

[70]    See Veracini, supra note 4, at 2.

[71]     G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples (Sep. 13, 2007) [hereinafter UNDRIP].

[72]    Ratification Status for India, supra note 67.

[73]    José R. Martinez Cobo (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Prot. of Minorities), Study of the Problem of Discrimination Against Indigenous Populations, U.N. Doc. E/CN.4/Sub.2/1986/7 and Adds. 1–4 (1987).

[74]    ILO Convention (No. 169) concerning Indigenous and Tribal Peoples Convention in Independent Countries, art. 1(2), June 27, 1989, 1650 U.N.T.S. 383.

[75]    Rattan Lal Hangloo, Kashmiriyat: The voice of the past misconstrued, in The Parchment of Kashmir 28 (N. Khan ed., 2012) (citing the use of revolutionary phrases — “choun desh meun desh, Koshur Desh! Koshur Desh! (Your country, my country, Kashmir! Our country, Kashmir!)” — well before 1975).

[76]    Id. at 38.

[77]    UNDRIP, arts. 5, 8–15.

[78]    While some persuasive arguments have been made to UNDRIP’s customary, and thus binding status, they are not yet widely accepted. See Office of the High Commissioner, Indigenous Peoples and the United Nations Human Rights System 8 (2013), https://www.ohchr.org/documents/publications/fs9rev.2.pdf [https://perma.cc/JLK8-3WGF].

[79]    UNDRIP, arts. 5, 8–15.

[80]    See Saito, supra note 9, at 173. The Inter-American Court of Human Rights has also stressed the importance of protecting Indigenous land in particular, noting that: “relations to the land are not merely a matter of possession and production but a material and spiritual element.” Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations, and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 79, ¶ 149 (Aug. 31, 2001).

[81]    UNDRIP, arts. 3–4.

[82]    See Office of the High Commissioner, supra note 78, at 3.

[83]    Id. at 8.

[84]    U.N. Charter art. 1(2).

[85]    The UN Charter includes guaranteeing respect for the “self-determination of peoples” as one of the UN’s core “purposes.” G.A. Res. 1514 (XV), supra note 1, preamble (emphasis added).

[86]    Reference re Secession of Quebec, [1998] 2 S.C.R. 217, ¶¶ 130–135 (Can.).

[87]    G.A. Res. 2625 (XXV) (Oct. 24, 1970).

[88]    Reference re Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 136.

[89]    Id. at ¶ 134; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403, 618, ¶ 16 (July 22) (separate opinion of Yusuf, J.).

[90]    Michael P. Scharf, Earned Sovereignty: Judicial Underpinnings, 31 Denv. J. Int’l L. & Pol’y 373, 373–79 (2003).

[91]    See Saito, supra note 9, at 192–93.

[92]    See id. at 193 (highlighting five principles: “Territorial integrity is a legal fiction;” “Peoplehood is constructed and defined by the people, not the state;” “Self-determination cannot be constrained by a paradigm of “universal” rights;” “States are not the only viable forms of political organization;” “Self-determination is a process and a continuing right.”).

[93]    Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J. 554, ¶ 20 (Dec. 22); see also id. ¶¶ 25–26 (“At first sight [uti possidetis juris] conflicts outright with another one, the right of peoples to self-determination.”).

[94]    ICCPR, art. 1; ICESCR, art. 1.

[95]    See Anghie, supra note 42, at 5–6.

[96]    Duncan Kennedy, A Left Phenomenological Alternative to the Hart/Kelsen Theory of Legal Interpretation, in Legal Reasoning, Collected Essays 158 (2008).

[97]    See Noura Erakat, Justice for Some 7 (2019).

[98]    See Kennedy, supra note 96.

[99]    See Daryl J. Levinson & Jack L. Goldsmith, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791, 1822–23 (2009).

[100]   Kennedy, supra note 96.

[101]   See Saito, supra note 9, at 202.

[102]   Stand with Kashmir, a prominent group of Kashmiri activists, protested with the First Nations peoples of Australia to “stand against the devastation and lasting impact of settler colonialism on Indigenous communities.” Stand with Kashmir, Facebook (Jan. 28, 2021, 11:27 AM), https://www.facebook.com/StandWithKashmir/posts/2183498138449673 [https://perma.cc/GJE9-EKSF]. While they mention settler colonialism, concretizing that framework through the law, as this Note attempts, can embolden their case and highlight the parallels for the international community.

[103]   139 UN members recognize Palestine as an independent state. See Permanent Observer Mission of The State of Palestine to the United Nations New York, https://palestineun.org/about-palestine/diplomatic-relations/ [https://perma.cc/R84M-MU9D] (last visited Jan. 15, 2021).

[104]   Those unwilling to apply the occupation law reason that Kashmir, by way of signing the Instrument of Accession, is integral to the territory of the Indian state. See Bhan et al., supra note 56 at 315–16.

[105]   UNDRIP, art. 7.

[106]   Convention on the Prevention and Punishment of the Crime of Genocide, art. 2, Dec. 9, 1948, 78 U.N.T.S. 277.

[107]   See Wolfe, supra note 3, at 387.

[108]   See Gregory Stanton, Genocide Alert for Kashmir, India, Genocide Watch (Aug. 15, 2019), https://www.genocidewatch.com/single-post/2019/08/15/genocide-alert-for-kashmir-india [https://perma.cc/9M89-JUGK].

[109]   See Veracini, supra note 4, at 31 (“This is why merely calling settlements ‘neighborhoods’ or ‘communities’ and ensuring that settlements look like neighborhoods can never be enough. The necessary normalization cannot proceed unless these ‘neighborhoods’ become fully integrated in their surroundings and the relationship of opposition between settler and Indigenous collectives is erased or superseded, which for the reasons noted above is not possible.”)

[110]   Kashmir for Kashmiris, Stand with Kashmir, https://www.standwithkashmir.org/kashmir-for-kashmiris [https://perma.cc/45AR-UHZR] (last visited Apr. 30, 2021).

[111]    See Saito, supra note 9, at 175.

[112]   Kristy Gover, The Potential Impact of Indigenous Rights on the International Law of Nationality, 115 AJIL Unbound 135, 135 (2021) (“Love-Thomas and Desautel extend this idea by establishing that the relevant connection can endure across state boundaries irrespective of state law and international law on nationality, as a constitutional right vested in Indigenous non-citizens.”).

[113]   Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations, and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 79, ¶ 149 (Aug. 31, 2001).

[114]   Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion ,1971 I.C.J. 16, ¶ 2 (June 21) (separate opinion of Ammoun, J.).

[115]   See id. (“Sovereignty, which is inherent in every people, just as liberty is inherent in every human being, therefore did not cease to belong to the people subject to mandate. It had simply, for a time, been rendered inarticulate and deprived of freedom of expression.”)

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*       Shaiba graduated from Harvard Law School in 2021 and is now clerking in the Central District of California. She has precious experience working in India and Myanmar and hopes to continue her work in international law going forward.

Silja Aebersold*

[Click here for PDF]

The Inter-American human rights system, which has been the region’s driving force for extensive land rights protection of indigenous peoples, has failed to effectively protect Afro communities’ collective land claims. While it has identified Afro-descendants as tribal peoples and vulnerable groups to afford them the same land rights as indigenous peoples, these two qualifications have numerous limitations. To overcome these weaknesses and strengthen Afro communities’ land rights protection, this essay proposes a community-based approach.

Introduction

Latin America is characterized by the world’s most unequal distribution of land ownership. The land distribution inequality is particularly extreme in Colombia where two-thirds of the agricultural land is in the hands of only 0.4 percent of the farms.^[1] Data from Brazil, Chile, Paraguay, and Venezuela show similar patterns.^[2] This inequality exacerbates poverty and contributes to the displacement of rural communities that lack land security, as these communities cannot provide for themselves and are forced to migrate to impoverished urban centers for employment. In the 1950s and 60s, many Latin American states undertook agrarian reforms to grant ownership to those who physically work the land. However, the reforms did not substantively alter land distribution, and subsequent military dictatorships and armed conflicts reversed much of the progress made.^[3] After the fall of the authoritarian regimes in the 1990s, Latin America witnessed the rise of indigenous rights movements, reviving the public debate on land distribution. Across the region, indigenous peoples demanded, inter alia, recognition of their existence and access to the lands where they traditionally inhabited. Afro communities, made up of descendants of enslaved Africans brought to the region during colonial times, joined the indigenous rights movements, raising similar land-related demands in many countries. In response, most Latin American states took steps towards titling lands of indigenous peoples and, to a lesser extent, Afro communities, partially remedying these communities’ restricted access to property. At the international level, the Inter-American human rights system, including the Inter-American Commission on Human Rights (Inter-American Commission) and Inter-American Court of Human Rights (Inter-American Court), supported and accelerated the states’ efforts by developing an extensive human rights framework on collective land rights and corresponding state obligations in favor of indigenous peoples. According to a 2015 survey, indigenous and Afro communities now own or control 1.7 percent of the total territory in Costa Rica, Guatemala, and Honduras, and 20 percent of the total territory in Argentina, Bolivia, Brazil, Chile, Colombia, Guyana, Peru, Suriname, and Venezuela.^[4]

Land rights remain one of the most contentious issues in Latin America. Many communities, particularly those of African descent, still lack access to and control over their lands. In Colombia, only 2 percent of the Caribbean coastal lands occupied by Afro communities are formally titled in the communities’ names,^[5] and the government refuses to grant collective land ownership to Afro communities residing on lands designated for mining and other extractive industries.^[6] Afro-Brazilians have experienced similar delays in the land titling process after the government cut the budget of the competent authority, the National Institute for Agrarian Reform and Colonization, by over 90 percent between 2012 and 2018.^[7]

In addition, several states have rolled back the legal land protection once granted to Afro communities to attract investors and large-scale development projects. Peru implemented a series of legislative changes to facilitate expropriation of collective land titles belonging to non-indigenous communities, including Afro and other peasant communities, to promote private and public investment.^[8] Colombia recently withdrew a collective land title from an Afro community under a flimsy legal pretext. Local authorities and lawyers assume that the real motivation behind the withdrawal is to pressure the community into clearing the way for a tourism project on its land.^[9]

Activists and lawyers have risked their lives in an effort to reverse or mitigate these developments and advance land rights protection for their communities. In 2020, 264 human rights defenders were reportedly killed in Latin America, over 100 of whom pursued causes related to land, indigenous peoples, and environmental protection.^[10] Most of these killings occurred in a climate of impunity.

An adequate legal framework to protect Afro communities’ land rights claims is important from a legal and practical perspective. Cases involving collective land rights protection of Afro communities are pending before the Inter-American Court and require a sustainable solution that is consistent with recognized international and national legal principles. For instance, the Afro-Honduran community of San Juan has filed a petition against Honduras for failing to issue a collective ownership title over the community’s entire ancestral land, among other allegations.^[11] Honduras has allegedly awarded part of the ancestral land to third parties, including hotel businesses, without previously consulting the community. If the allegations are true, the Court could use this case to set a precedent for stronger land rights protection for Afro communities across the region than under the limited concepts of tribal peoples and vulnerable groups. Practically, enhanced land rights protection would help ameliorate the immense land inequalities in Latin America by allowing more Afro communities to access land. Additionally, studies have shown that communities thrive economically after obtaining collective land titles.^[12] Legally secured land ownership affords communities the stability to invest in their land and community life by removing fear of displacement. Thus, land rights protection also contributes to the economic integration of a historically marginalized population group.

The current international human rights framework is, however, limited in its ability to strengthen the land rights protection of Afro communities. Binding international human rights instruments do not explicitly address Afro-descendants’ legal protections, let alone recognize them as a separate category of rightsholders. Human rights bodies and legal scholarship have debated whether Afro-descendants can be qualified as indigenous or tribal peoples, vulnerable groups, racial and ethnic minorities, or individual rightsholders.^[13] Two dominant approaches have emerged. The Inter-American human rights system has qualified several Afro communities as “tribal peoples,” affording them collective land rights if they are able to demonstrate certain cultural characteristics considered “tribal.” The Inter-American and United Nations (UN) human rights bodies as well as human rights practitioners have qualified Afro communities as vulnerable groups to grant them enhanced land rights protection.

This essay argues that the tribal peoples and vulnerable group approaches offer insufficient land rights protection for Afro communities. It proposes an alternative approach that requires Afro communities to fulfill three criteria in order to benefit from collective land rights in the Inter-American human rights system: (1) adherence to a community-based organizational structure; (2) self-identification as being of African descent; and (3) ancestral occupancy of the land they claim ownership over. These criteria are already being applied by several Latin American states, including Brazil, Colombia, Nicaragua, and Honduras, and are consistent with other domestic and international legal principles and supported by practical considerations.

This essay first outlines the current understandings of Afro-descendants’ land rights protection, including the tribal peoples and vulnerable group approaches. Next, the essay presents the weaknesses of these approaches and proposes an alternative solution to Afro communities’ land rights based on domestic and international law principles as well as practical considerations.

I. Current International Human Rights Protection of Afro-Descendants’ Land Claims

The dominant approaches to Afro communities’ land rights protection in international human rights law are the qualification of Afro-descendants as tribal peoples and vulnerable groups.

A. The Tribal Peoples Approach

The Inter-American human rights system primarily bases the land rights protection of Afro communities on the concept of tribal peoples as stipulated in the International Labor Organization Convention No. 169 (ILO Convention No. 169). This convention defines tribal peoples as population groups who (1) exhibit social, cultural, and economic characteristics different from other population groups; (2) regulate their status wholly or partially by their own customs, traditions, or special rules; and (3) self-identify as tribal members.^[14] Applying this concept to Afro-descendants is appealing because it contains elements of collectivity and self-regulation that resonate with Afro communities.^[15] Moreover, unlike the definition of indigenous peoples, it does not require a community to live on a given territory prior to colonization or the establishment of state boundaries.^[16] The former is crucial given that Afro-descendants arrived as enslaved people during the European colonization of Latin America and therefore have not lived on their lands since before the colonization. Rather, they were present on the territory of Latin American states at the same times as these states were established.

All Inter-American human rights cases dealing with Afro communities apply the terminology of tribal peoples.^[17] For instance, in Saramaka People v. Suriname, the Inter-American Court addressed the land rights of the Afro-descendant Saramaka people and their battle against mining and logging companies, which had received concessions from the Surinamese state to carry out activities on the Saramaka’s land without prior consultation.^[18] When discussing the legal scheme applicable to the Saramaka, the Court held that the Saramaka is a tribal people “because of their special relationship with their ancestral territories, and because they regulate themselves, at least partially, by their own norms, customs, and/or traditions.”^[19] In more recent jurisprudence, the Inter-American Court has abandoned the distinction between indigenous and tribal peoples altogether. In the 2015 case, Garifuna Community of Triunfo de la Cruz and its Members v. Honduras, the Court dealt with the question of whether the Honduran state’s urban development projects that extended into the ancestral land of the Afro community of Triunfo de la Cruz violated the community’s land rights under the American Convention on Human Rights.^[20] To determine the nature and scope of these land rights, the Court discussed whether the community qualifies as an indigenous people, tribal people, or neither. It first analyzed the community’s history, relationship to the traditional land, economic activities, language, and internal organization.^[21] The Court then simply stated that it would consider “the indigenous or tribal nature”^[22] of the community, as both indigenous and tribal peoples enjoy the same land-related rights.

In Saramaka and Garifuna Community of Triunfo de la Cruz, the Court looked for cultural characteristics similar to those attributed to indigenous peoples to determine whether a specific community qualified as tribal. For example, it analyzed whether the community has a unique language, observes folkloric elements of culture, such as traditional dances and music, relies on the ancestral land for its cultural, spiritual, and material survival, and engages in traditional economic activities, including fishing, hunting, and agriculture.^[23] In evaluating the folkloric elements criteria, the Court relied on testimonies of anthropologists, historians, and other experts on cultural features of these communities. This approach requires Afro-descendants to show cultural elements to gain the right to collective land ownership, natural resources, prior consultation, and a healthy environment.^[24] Legal scholars have coined this understanding “the cultural approach” because it obliges communities seeking protection under the concept of tribal peoples to prove certain cultural characteristics.^[25]

The Inter-American human rights system’s rationale for its tribal peoples approach is that Afro-descendant communities adhere to a traditional lifestyle akin to that of indigenous peoples and thus should be able to prove the same cultural features to benefit from the collective land rights protection.^[26] Unlike the majority population, Afro communities rely on their ancestral land to survive as a community and maintain their ancestors’ way of life. The Inter-American human rights system also argues that granting legal protection of their lands supports the communities’ cultures, an integral part of a democratic and pluralist society.^[27] Based on these considerations, the Inter-American human rights system has granted far-reaching land rights to Afro communities that qualify as tribal.

B. The Vulnerable Groups Approach

The reference to Afro-descendants as a vulnerable population group is based on the understanding that they have historically been discriminated against and have not enjoyed the same opportunities as the rest of the population. Their vulnerability is a result of “poverty, underdevelopment, social exclusion and economic inequalities that are closely linked to racism, racial discrimination, xenophobia and related intolerance.”^[28] By identifying Afro communities as vulnerable groups, the international human rights bodies and scholars seek to push for enhanced State protection and expand the scope and content of state obligations. States should take measures to overcome the communities’ exclusion and discrimination and ensure their cultural survival.^[29]

Several UN and Inter-American human rights bodies and practitioners have referred to Afro-descendants as a vulnerable group. While the legal protection derived from this concept is less specific than that derived from the categorization of Afro-descendants as tribal peoples, it provides the benefit of commanding states to remedy the vulnerability that prevents communities from claiming their rights.

The concept of vulnerable groups emerged from the practice of UN and regional human rights treaty bodies. It is not explicitly mentioned in binding international human rights instruments. The UN Committee on Economic, Social, and Cultural Rights, the UN Committee on the Elimination of Racial Discrimination, the Inter-American human rights system, and the European Court of Human Rights, among others, have employed the term “vulnerable” or “disadvantaged” to refer to a group of persons that are more susceptible to human rights abuses than others due to their social or economic conditions, exposure to structural discrimination, or inability to seek judicial protection.^[30] Yet they have frequently used the terms “vulnerable” and “disadvantaged” interchangeably without providing a consistent or clear definition of either term.^[31] And the human rights treaty bodies apply the concept of a vulnerable group on an ad hoc basis to a variety of population groups. These groups have included women, children, persons with disabilities, persons deprived of liberty by the state, asylum seekers, persons of low economic status, indigenous peoples, and Afro-descendants.^[32] The lack of definition and broad application of the terms raise the question of who qualifies as vulnerable or disadvantaged and whether this is a permanent classification.

With regards to Afro-descendants, scholars and human rights treaty bodies have referred to the population’s vulnerability to advocate for enhanced legal protection.^[33] For instance, the UN Working Group of Experts on People of African Descent has repeatedly stated that Afro-Latin Americans are a vulnerable group and States should take special measures to combat the poverty, discrimination, and inequalities they suffer.^[34] Similarly, the Inter-American human rights system has ordered states to implement measures for Afro (and indigenous) communities that go beyond the content of ordinary state obligations for individuals.^[35] Such special measures are temporary in nature and seek to achieve substantive equality vis-à-vis the rest of the population, leveling the playing field for all members of society.

The Inter-American human rights system has also employed the vulnerability terminology to shed light on specific circumstances that might prevent Afro communities from enjoying their fundamental rights. This use of the vulnerability concept becomes evident in Punta Piedra Garifuna Community and its Members v. Honduras, in which the Inter-American Court addressed Honduras’ failure to prevent third parties from interfering with the Afro community’s traditional land despite knowing of the interferences.^[36] The Court ruled that Honduras did not provide the community an effective domestic recourse to address these interferences.^[37] It held that the decisions of the Honduran courts “should be executed without obstacles or undue delays in order to achieve their objective in a quick, easy, and integral manner. This is particularly important in cases on indigenous matters given the special situation of vulnerability that these peoples could be in, which by itself could impose obstacles not only to access justice but also to achieve implementation of the adopted decisions.”^[38] Without defining the term “vulnerability,” the Inter-American Court concluded that the state should design its judicial avenues to provide easier access for indigenous and tribal peoples.^[39] Thus, the Court used the vulnerability concept to inform the scope and content of specific State obligations, highlighting that Afro-descendants are particularly susceptible to human rights abuses.

II. Weaknesses in the Tribal Peoples and Vulnerable Group Approches to Afro Communities’ Land Rights Protection

While the Inter-American human rights system’s tribal peoples and vulnerable group approaches have helped some Afro communities gain collective land rights and contributed to enhanced legal protection of these communities, both approaches have several weaknesses. The tribal peoples approach overemphasizes folkloric cultural aspects and reinforces socio-economic inequalities and negative stereotypes. The vulnerable group approach fails to resolve ambiguities in the legal understanding of vulnerability. Both approaches neglect the land’s economic dimension, raise challenges with third party rights, and risk paternalizing Afro communities.

A. Overemphasis of Folkloric Cultural Aspects to the Exclusion of Most Afro Communities

The tribal peoples approach strongly emphasizes folkloric elements of culture, including a unique language, religious practices, and traditional economic activities. These elements are present in only a very small number of Afro communities, such as the Garifuna people in Central America or the community of San Basilio de Palenque in Colombia.^[40] Slavery and the century-long assimilationist policies of Latin American States have caused the vast majority of Afro-descendants to lose touch with their ancestral languages or religions.^[41] Most Afro communities speak the language of their territorial states, adhere to Christian beliefs, and do not exclusively engage in agriculture, fishing, or hunting. While these communities may still raise collective land claims, they do not possess the required cultural characteristics to qualify as tribal peoples. As a result, they lack any protection of their land claims under the tribal peoples framework of the Inter-American human rights system.^[42]

The communities that still follow some unique rituals and customs are forced to essentialize their cultures if they seek qualification as tribal peoples and enjoyment collective land-related rights. This prevents them from developing or adjusting their way of life.^[43] For instance, to enjoy continuous legal protection under the tribal peoples’ framework, Afro communities are required to maintain traditional economic activities. If they carry out different economic activities, they risk losing the ability to claim collective land title.^[44] In Saramaka, for example, the Inter-American Court ruled that the community’s right to use and enjoy natural resources is only protected if the natural resources are “found on and within the […] territory” and “essential for the survival of [the community’s] way of life.”^[45] The Court concluded that the Saramaka people have traditionally used timber but not the gold resources on their land and consequently have a right to use and enjoy only timber.^[46] This leads to the paradoxical situation that multinational companies may obtain a license to extract natural resources from ancestral community lands, but the Afro communities living on the land may not engage in such activities if they want to maintain their collective land rights.

B. Reinforcement of Socio-Economic Inequalities and Negative Stereotypes About Afro Communities

The tribal peoples approach fails to acknowledge that land claims of Afro-descendant communities are the result of social and economic inequalities that have persisted since colonial times.^[47] Across Latin America, many Afro-descendants live in poverty and have only limited access to quality education, health care, and sanitary installations.^[48] The tribal peoples approach further entrenches these undesirable socio-economic structures by encouraging the communities to focus on their cultural characteristics. Afro-descendants enjoy land ownership only to preserve their traditional cultural identity while the dominant, racially mixed population has unlimited access to land. As a result, the Inter-American human rights system prevents Afro communities from pursuing economic development, which perpetuates the image that they are poor and underdeveloped.^[49] This approach reduces the communities to their cultural features.

C. Ambiguous Concept of Vulnerability in the Law

The fact that U.N. and Inter-American human rights bodies have not adopted a working definition of the term “vulnerability,” renders the concept vague and leads to many ambiguities. While the Inter-American Court has referred to the vulnerability of Afro communities in its cases, it is unclear whether all Afro communities would be included in this concept. Would a community lose its enhanced legal protection if its living conditions improve such that it no longer qualifies as “vulnerable”? The precise scope and content of the enhanced legal protection a “vulnerable” community would enjoy is equally unclear. The concept of vulnerability by itself does not impose a specific framework of legal protection similar to the indigenous or tribal peoples schemes. This makes the land rights-related protection granted to Afro communities under the concept of vulnerability ambiguous. While this concept might be suitable to highlight the difficult socio-economic living conditions of many Afro communities, it is an insufficient basis for the legal protection of their land rights.

D. Neglect of the Land’s Economic Dimension

Both the tribal peoples and vulnerable group approaches disregard the economic value of the Afro communities’ ancestral lands. In Garífuna Community of Triunfo de la Cruz, the Inter-American Court held that indigenous and tribal communities enjoy collective property rights under Article 21 of the American Convention on Human Rights (ACHR) to “continue living their traditional way of life” and respect and protect “their cultural identity, social structure, economic system, customs, believes, and distinctive traditions.”^[50] The Inter-American Court clarified that such conditions were necessary to ensure the communities’ physical and cultural survival.^[51] This reasoning reveals that the Inter-American human rights system views land as a mere cultural commodity, ignoring the economic dimension of lands.^[52] This reduction prevents Afro communities from freely deciding their own way of life and economic development.

The failure to recognize the economic value of communal lands further contradicts the Charter of the Organization of American States (OAS Charter), the cornerstone of the Inter-American human rights system.^[53] While the OAS Charter does not explicitly mention human rights norms,^[54] it states that land rights and control over natural resources are essential tools to overcome poverty and achieve a just society.^[55] It also recognizes the importance of securing land rights to ensure economic survival.^[56] States should, inter alia, modernize rural life and implement an equitable and efficient land tenure system.^[57] These references demonstrate the importance of ownership, use, and control over land to ensure the economic existence of all people, including Afro communities.

E. Challenges with Third-Party Land Rights

The Inter-American human rights system’s existing case law on indigenous and tribal peoples indicates challenges with the rights of third parties over community lands. The Afro communities’ land rights (based on cultural features and vulnerability considerations) do not necessarily override the rights of third parties to the community land.^[58] Instead, if non-community members have an interest in the communal lands, the Inter-American human rights system conducts a proportionality test according to which restrictions must be established by law, necessary, proportional, and have a legitimate goal in a democratic society.^[59] This puts Afro communities in a disadvantageous position in land disputes with non-community members because the communities can only claim a cultural relationship with their land while third parties’ claims are not subject to any limitation. If the communities’ interest in their land becomes primarily economic because assimilationist policies have cause them to lose their unique cultural features, they risk losing legal protection of their traditional lands.

F. Risk of Paternalizing Afro Communities

With the current approaches to Afro communities’ land rights claims, the Inter-American human rights system risks determining the communities’ way of life on their behalf. In all cases involving Afro communities, the Inter-American Court places strong emphasis on the expert testimonies of anthropologists and other experts,^[60] who are mostly not citizens of the territorial State in question. For instance, in Saramaka, the Inter-American Court heard seven expert witnesses testifying on the different aspects of the Saramaka people’s culture; the six community member witnesses primarily testified on human rights abuses and their efforts to remedy these abuses.^[61] While the experts undoubtedly have knowledge in their respective fields, they might not be familiar with the cultural nuances of specific communities. By relying heavily on their testimonies, the Court risks adopting a top-down determination that cultural characteristics are not present in a case where the experts misinterpret the Afro communities’ way of life. Such result would challenge the legitimacy and influence of the Inter-American human rights system at the local level.

III. The Way Forward: A Community-Based Approach to Land Rights Protection

To counter the weaknesses in the tribal peoples and vulnerable group approaches and strengthen the land rights protection of Afro communities in Latin America, this essay proposes a community-based approach based on three criteria. If a community fulfills these criteria, it is entitled to collective land rights under the Inter-American human rights system. This community-based approach is based on domestic and international legal principles and practical considerations.

A. Three Criteria for Collective Land Rights Protection Under the Community-Based Approach

First, to benefit from collective land rights protection under international human rights law, the Afro community should possess a certain internal organization. This can include a community council, assembly, board, or other self-governance entity that is competent to decide and act on the community’s land issues. This criterion ensures that the group of people seeking collective land rights protection actually constitutes a community with a shared interest in accessing and using their traditional lands.

Second, the community in question should self-identify as being of African descent. This criterion helps limit the collective land claims to those groups who have historically been marginalized and prohibited from owning property. It also mitigates the risk that the relevant human rights bodies assessing the community’s land claims take a top-down approach, imposing their own views of who is and what it means to be of African descent.

Lastly, the Afro community should have ancestral occupancy of the land to which they claim to be entitled. Information indicating the existence of early settlements, such as church or other official records, testimonial accounts, maps, or the presence of historical sites, can serve as proof. This criterion ensures that the community has existed over a prolonged period without forcing it to adopt folkloric cultural features or limiting its economic, social, or cultural development. It also mitigates the risk that a community falsely self-identifies as Afro-descendant for the sake of improved land rights protection, as the community still needs to prove its prolonged existence in a specific location.

B. Legal and Practical Foundations of the Community-Based Approach

From a domestic law perspective, the community-based approach – or at least some elements of it – is already being applied by several Latin American States. In Brazil, Afro communities are entitled to collective land rights under federal law if they self-identify as “quilombolas,” who are broadly defined as employing “practices of resistance for the maintenance and reproduction of their characteristic way of life,”^[62] and present a technical report that draws the boundaries of their land.^[63] Brazil’s definition of quilombolas allows Afro communities to obtain land rights protection while freely determining their preferred lifestyle. Some state laws, such as those of the state of Para, only rely on the criterion of self-identification for Afro-Brazilians’ collective land rights.^[64] In Colombia, Law No. 70 of 1993 states that only Afro communities with certain folkloric cultural features enjoy collective land rights,^[65] but authorities have broadened the law’s scope. They grant collective land ownership to Afro communities if the communities have a community council, self-identify as Afro-descendants, and can prove ancestral occupancy of their land.^[66] Similarly, the Honduran and Nicaraguan laws focus on the communities’ ancestral occupancy of their lands.^[67] In Nicaragua, Afro communities are additionally required to form a community council prior to initiating the land titling process.^[68]

The concept of the social function of property, which is reflected in the constitutions of many Latin American States,^[69] further supports collective land rights of Afro communities. This concept states that private property ownership should not be exercised in a way that causes harm to others but should benefit the collective.^[70] Private property may also invoke an obligation to use productive land to cultivate food and other goods for society. For example, arable land should not be left unused or for speculation. Restricting collective property rights to the few Afro communities with specific cultural features contradicts the social function principle because it leaves most communities without access to land that they could use for the benefit of their members and the society at large.

From an international human rights perspective, the community-based approach comports with the principle of self-identification. This principle establishes that communities and their individual members can freely choose to identify as indigenous or tribal.^[71] Third parties, including State actors, international human rights bodies, anthropologists, legal scholars, and other experts, may not determine the identity and way of life of communities or their members. Outside the context of indigenous and tribal peoples, the principle of self-identification is implied in the right to participate in one’s cultural life enshrined in Article 15(1)(a) of the International Covenant on Economic, Social, and Cultural Rights.^[72] According to the current interpretation of this provision, “[t]he decision by a person whether or not to exercise the right to take part in cultural life individually, or in association with others, is a cultural choice and, as such, should be recognized, respected and protected on the basis of equality.”^[73] Thus, the self-identification principle is consistent with the community-based approach because both approaches refrain from imposing a particular culture on communities. Instead, they emphasize the preferred lifestyle and views of the communities and their members, irrespective of whether the communities identify as indigenous, tribal, or neither.

The community-based approach resolves existing challenges in the Inter-American human rights system’s jurisprudence on the rights of third parties to community land. Currently, the cultural relationship of indigenous and tribal peoples to their land does not necessarily trump third parties’ claims over the same land. While third parties can base their claims on any given justification, indigenous and tribal peoples are limited to claiming a cultural relationship to their land. The community-based approach removes this limitation as Afro communities can claim an economic link to their ancestral lands, just like third parties. This places Afro communities on an equal footing with third parties in land rights disputes. Lastly, the community-based approach grants land rights protection to a greater number of Afro communities than the tribal peoples or vulnerable group approaches, as more communities are likely to fulfill the three above-mentioned criteria. It therefore contributes to a more equal land distribution in Latin America and helps overcome existing inequalities as more Afro communities gain access to land that allows for economic, social, and cultural flourishing.

Conclusion

Land rights of Afro communities are one of the most disputed issues in Latin America. The Inter-American human rights system, the region’s driving force for extensive land rights protection of indigenous peoples, has failed to effectively protect Afro communities’ land claims. It has granted Afro-descendants collective land rights under the concepts of tribal peoples and vulnerable groups, but these concepts have numerous weaknesses. While the tribal peoples approach excludes most Afro communities based on an inability to demonstrate the cultural features of tribal peoples, and reinforces socio-economic inequalities, the vulnerable group approach is vague, neglecting to specify a set of rights for Afro communities. Further, both approaches fail to consider the economic value of Afro communities’ lands, which paternalizes such communities and places them in a disadvantageous position in property disputes with third parties. To overcome these weaknesses, this essay proposes a community-based approach. Afro communities who (1) have some sort of internal organization, (2) self-identify as being of African descent, and (3) have ancestral occupancy over the land, should be entitled to collective land rights protection in the Inter-American human rights system. This approach is based on existing domestic and international legal principles and practical considerations.

While this change in the framing of Afro communities’ land rights is necessary to strengthen land rights protection under international human rights law, it needs to be combined with efforts to enhance enforcement of international human rights norms at the domestic level. This can be achieved by, inter alia, improving the implementation of the Inter-American human rights system’s decisions on the ground, providing effective remedies for violations of the communities’ land rights, and holding those who threaten or even kill land rights defenders accountable before the law. The design of these measures is a topic that is ripe for future research.

 

[1]      Oxfam, Unearthed: Land, Power and Inequality in Latin America 23 (2016), https://www-cdn.oxfam.org/s3fs-public/file_attachments/bp-land-power-inequality-latin-america-301116-en.pdf.

[2]      Id.

[3]      Solon L. Barraclough, The Legacy of Latin American Land Reform, NACLA Magazine (Sept. 25, 2007), https://nacla.org/article/legacy-latin-american-land-reform; Thomas Griffiths, Indigenous Peoples, Land Tenure and Land Policy in Latin America, Land Reform: Land Settlement and Cooperatives, Jan. 2004, at 46.

[4]      Rights and Resources Initiative, Who Owns the Land in Latin America?: Formal Recognition of Community-Based Land Rights in Latin America 3 (2005), https://rightsandresources.org/wp-content/uploads/FactSheet_English_WhoOwnstheLandinLatinAmerica_web.pdf.

[5]      Id. at 4.

[6]      Maria Monica Monsalve, Las 401 solicitudes de títulos colectivos afros que están sin resolver [The 401 Afro Petitions for Collective Land Titling That Have Not Been Resolved], El Espectador (June 29, 2021), https://www.elespectador.com/ambiente/las-401-solicitudes-de-titulos-colectivos-afros-estan-sin-resolver/.

[7]      Oswaldo Braga de Souza, What Changes (or What’s Left) for the Quilombos with President Bolsonaro’s Reforms?, Instituto Socioambiental (Feb. 1, 2019), https://www.socioambiental.org/en/noticias-socioambientais/what-changes-or-whats-left-for-the-quilombos-with-president-bolsonaros-reforms.

[8]      Luis A. Hallazi Mendez, Situación de las tierras y territories indígenas en Perú [Situation of the Indigenous Lands and Territories in Peru], Servindi (Feb. 20, 2019), https://www.servindi.org/19/02/2019/situacion-de-las-tierras-y-territorios-de-los-pueblos-indigenas-en-el-peru.

[9]      Cartagena impugnerá fallo que anula título colectivo de La Boquilla [Cartagena will appeal the decision annulling the collective land title of La Boquilla], El Tiempo (Sept. 9, 2020), https://www.eltiempo.com/colombia/otras-ciudades/cartagena-impugnara-fallo-que-anula-titulo-colectivo-de-la-boquilla-536799.

[10]    Front Line Defenders, Global Analysis 2020, at 20 (2021), https://www.frontlinedefenders.org/sites/default/files/fld_global_analysis_2020.pdf.

[11]     Caso comunidad garífuna de San Juan y sus miembros vs. Honduras [Case of the Garifuna Community of San Juan and its Members vs. Honduras], Inter-American Court of Human Rights, https://www.corteidh.or.cr/docs/tramite/garifuna_de_san_juan_y_sus_miembros.pdf (last visited Aug. 26, 2021).

[12]     Ximena Peña et al., Collective Property Leads to Household Investments: Lessons from Land Titling in Afro-Colombian Communities, 73 World Dev. 27, 27 (2017).

[13]     E.g., Leonardo Reales, Ethnic Minorities and Human Rights Violations: The Afro-Colombian Case, 22 Rev. Latinoamericana de Derechos Humanos 153, 157–58 (2011).

[14]    ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (I.L.O. No. 169), art. 1(a),  June 27, 1989, 1650 U.N.T.S. 383 [hereinafter ILO Convention No. 169].

[15]     See Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 86 (Nov. 28, 2007).

[16]    See ILO Convention No. 169, art. 1(b).

[17]     See Inter-Am. Comm’n on Human Rights, Indigenous and Tribal People’s Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter‐American Human Rights System, ¶ 34, OEA/Ser.L/V/II. Doc. 56/09 (Dec. 30, 2009).

[18]    Saramaka, supra note 15.

[19]    Id. ¶ 84.

[20]    Garifuna Community Triunfo de la Cruz and its Members v. Honduras, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 305 (Oct. 8, 2015); American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 143 [hereinafter ACHR].

[21]     Garifuna Community of Triunfo de la Cruz, id., ¶¶ 46–56.

[22]    Id. ¶ 57. The Inter-American Court reached the same conclusion in Punta Piedra Garifuna Community and its Members v. Honduras. Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 304, ¶ 91 (Oct. 8, 2015). This case deals, inter alia, with the question of whether the Honduran State incurred an obligation to clear the Garifuna community’s traditional lands from interferences by third parties. The Court held that the community was indigenous or tribal in nature and therefore enjoyed collective land rights under Article 21 ACHR. Id. ¶¶ 83–90, 168.

[23]    Punta Piedra Garifuna Community, id., ¶¶ 85–91; Garifuna Community of Triunfo de la Cruz, supra note 20, ¶¶ 49–57; Saramaka, supra note 15, ¶¶ 80–84.

[24]    Inter-Am. Comm’n on Human Rights, supra note 17, ¶¶ 3, 194. For example, the Inter-American Court granted the Saramaka people the rights to natural resources and prior consultation because of its tribal characteristics. Saramaka, supra note 15, ¶¶ 121, 129.

[25]    Ariel E. Dulitzky, When Afro-descendants Became “Tribal Peoples”: The Inter-American Human Rights System and Rural Black Communities, 15 UCLA J. Int’l L. & Foreign Aff. 29, 32 (2010).

[26]    Saramaka, supra note 15, ¶ 79.

[27]    Kaliña and Lokono Peoples v. Suriname, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 309 (Nov. 25, 2015).

[28]    Robert Rojas Davila, Afro-Descendants as Subjects of Rights in International Human Rights Law, SUR Int’l J. on Hum. Rts., Dec. 2018, at 151, 159.

[29]    Saramaka, supra note 15, ¶ 103; Maya Indigenous Communities of the Toledo District v. Belize, Case 12.053, Inter-Am. Comm’n H.R., Report No. 40/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 ¶ 95 (2004); Int’l Labour Org., Indigenous and Tribal Peoples’ Rights in Practice: A Guide to ILO Convention No. 169, at 35 (2009).

[30]    Jo M. Pasqualucci, The Right to a Dignified Life (Vida Digna): The Integration of Economic and Social Rights with Civil and Political Rights in the Inter-American Human Rights System, 31 Hastings Int’l & Comp. L. Rev. 1, 17–22 (2008).

[31]     Audrey R. Chapman & Benjamin Carbonetti, Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights, 33 Hum. Rts. Q. 682, 683 (2011).

[32]    Id. at 683–84.

[33]    Claudia Martin, The Moiwana Village Case: A New Trend in Approaching the Rights of Ethnic Groups in the Inter-American System, 19 Leiden J. Int’l L. 491, 498 (2006).

[34]    Human Rights Council, Rep. of the Working Group of Experts on People of African Descent: Visit to Peru, ¶¶ 99–141, U.N. Doc. A/HRC/45/44/Add.2 (Aug. 21, 2020); Human Rights Council, Rep. of the Working Group of Experts on People of African Descent: Visit to Ecuador, ¶¶ 69, 71, U.N. Doc. A/HRC/45/44/Add.1 (Aug. 21, 2020); Human Rights Council, Rep. of the Working Group of Experts on People of African Descent: Visit to Peru, ¶¶ 28, 42, U.N. Doc. A/HRC/42/59/Add.2 (Aug. 14, 2019).

[35]    Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125, ¶¶ 63, 163 (June 17, 2005); Inter-Am. Comm’n on Human Rights, supra note 17, ¶¶ 48–54.

[36]    Punta Piedra Garifuna Community and its Members v. Honduras, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 304, ¶¶ 189, 372 (Oct. 8, 2015).

[37]    Id. ¶ 251.

[38]    Id. ¶ 249 (emphasis added).

[39]    Id.

[40]    The community of San Basilio de Palenque is an Afro-descendant community in Colombia’s Caribbean coast that was established by escaped slaves about four centuries ago. Its inhabitants have preserved unique cultural characteristics rooted in African traditions, such as the Palenque language, music expressions, medical practices, and distinct social practices. In 2005, the UNESCO listed the community as intangible cultural heritage of humanity. Cultural Space of Palenque de San Basilio, UNESCO Intangible Cultural Heritage, https://ich.unesco.org/en/RL/cultural-space-of-palenque-de-san-basilio-00102 (last visited Aug. 26, 2021).

[41]    Tanya Kateri Hernandez, Racial Subordination in Latin America 34–38 (2013).

[42]    Dulitzky, supra note 25, at 45.

[43]    Id. at 42–43, 46–48.

[44]    Id. at 42.

[45]    Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 123 (Nov. 28, 2007).

[46]    Id. ¶ 155; Dulitzky, supra note 25, at 48.

[47]    Dulitzky, supra note 25, at 63.

[48]    World Bank, Afro-descendants in Latin America: Toward a Framework of Inclusion 65 (2018), https://openknowledge.worldbank.org/handle/10986/30201.

[49]    See, id. at 100.

[50]    Garifuna Community Triunfo de la Cruz and its Members v. Honduras, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 305, ¶ 102 (Oct. 8, 2015).

[51]     Id.

[52]    Cf. Dulitzky, supra note 25, at 61, postscript.

[53]    Charter of the Organization of American States, Apr. 30, 1948, O.A.S.T.S. No. 61, 119 U.N.T.S. 47 [hereinafter OAS Charter]. The OAS Charter created the Organization of American States (OAS), which has adopted numerous human rights treaties, and established the Inter-American Commission of Human Rights. OAS Charter, art. 106.

[54]    The OAS Charter also does not impose obligations that member States have towards their individual citizens.

[55]    OAS Charter, art. 34.

[56]    OAS Charter, art. 30.

[57]    OAS Charter, art. 34(d).

[58]    Inter-Am. Comm’n on Human Rights, supra note 17, ¶ 116; Dulitzky, supra note 25, at 52.

[59]    Inter-Am. Comm’n on Human Rights, supra note 17, ¶ 117.

[60]    See also Dulitzky, supra note 25, at 43.

[61]    Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶¶ 64–65 (Nov. 28, 2007).

[62]    Sue Branford & Mauricio Torres, Brazilian Supreme Court Ruling Protects Quilombola Land Rights for Now, Mongabay (Feb. 13, 2018), https://news.mongabay.com/2018/02/brazilian-supreme-court-ruling-protects-quilombola-land-rights-for-now/.

[63]    Article 2 of the Decreto No. 4.887, de 20 de Novembro de 2003, Diário Oficial da União [D.O.U.] de 21.11.2003 (Braz.).

[64]    Rapoport Delegation on Afro-Brazilian Land Rights, Between the Law and Their Land: Afro-Brazilian Quilombo Communities’ Struggle for Land Rights 27 (2008), https://law.utexas.edu/wp-content/uploads/sites/31/2016/02/brazil-eng.pdf.

[65]    Articles 2(5), 4 of the L. 70/93, agosto 31, 1993, D.O. (Colom.).

[66]    Juan Carlos Betancur & Sergio Coronado Delgado, Observatorio de Territorios Etnicos [Observatory of Ethnic Territories], Derechos territoriales de las comunidades negras: una mirada desde la Diferencia [Territorial Rights of Black Communities: A Differential Perspective] 14 (2012).

[67]    Article 93 of Decreto No. 82-2004, 15 June 2004, Ley de Propiedad [Property Law], D.O., 29 June 2004 (Hond.); Articles 39-40 of Ley No. 445, 13 Dec. 2002, Ley de Régimen de Propiedad Comunal de los Pueblos Indígenas y Comunidades Étnicas de las Regiones Autónomas de la Costa Atlántica de Nicaragua y de los Ríos Bocay, Coco, Indio y Maíz [Ley de Propiedad Comunal] [Law of the Communal Property Regime of the Indigenous Peoples and Ethnic Communities of the Autonomous Regions of the Atlantic Coast of Nicaragua and the Rivers Bocay, Coco, Indio, and Maíz], L.G., 23 Jan. 2003 (Nic.) [hereinafter Law of Communal Property].

[68]    Article 40 of the Law of Communal Property.

[69]    Danilo Bonilla & Sheila Foster, The Social Function of Property: A Comparative Law Perspective, 80 Fordham L. Rev. 1003, 1008 (2011).

[70]    Id. at 1004–05.

[71]     Inter-Am. Comm’n on Human Rights, supra note 17, ¶ 31.

[72]    International Covenant on Economic, Social, and Cultural Rights, art. 15(1)(a), Dec. 16, 1966, 993 U.N.T.S. 3.

[73]    Comm. on Econ., Soc. & Cultural Rights, General Comment No. 21: Right of Everyone to Take Part in Cultural Life (Art. 15, para. 1(a), of the International Covenant on Economic, Social and Cultural Rights), ¶ 7, U.N. Doc. E/C.12/GC/21 (Dec. 21, 2009).

---

*       Silja Aebersold is a Swiss lawyer with a doctorate in law from American University Washington College of Law. Her doctoral thesis focused on human rights claims of Afro-descendant and indigenous communities in Latin America and their protection at the intersection of legal orders, identifying a model framework for improved rights implementation on the ground. For the past seven years, Ms. Aebersold has worked in civil society in Europe, Latin America, the Middle East, and the US. She currently serves as legal advisor to the Syrian Initiative at American University Washington College of Law. In this capacity, she leads research projects on legal issues in conflict and post-conflict situations and delivers trainings and lectures on international human rights, humanitarian, and criminal law.

By: Agnes Binagwaho and Richard Freeman[*]

 

[Click here for PDF]

Introduction

Communities around the world are organizing to confront structural violence and its enduring consequences. As the COVID-19 pandemic, caused by a deadly respiratory virus, disproportionately affects historically oppressed communities, protestors rally around cries of “I can’t breathe,” the dying words of black men and women killed by police.[1] In Africa and in Europe, the global movement has found expression in the struggle against unresolved injustices of colonial and post-colonial violence. Activists worldwide have converged on a common tactic, as they topple statues and monuments that honor racist historical figures. Symbolic in nature, the powerful action carries real import: it transforms the space, norms, and discourse within which we accept to live together.

For post-colonial societies, this article demonstrates Rwanda’s experience in extending the movement beyond the realm of symbolism and into substantive policy reform. The country has taken the unprecedented step of systematically eradicating the legal roots of historic inequality and structural violence at the very heart of post-colonial society. Rather than toppling statues, Rwanda toppled its colonial statutes.

In a previous article published in this Journal, we advocated for Rwanda to initiate a public debate and to take bold action to abolish the barriers that colonial laws still presented to health, human rights, and development.[2] Staying true to its trailblazer reputation, Rwanda acted swiftly. As it commemorated 25 years since the end of the 1994 genocide against the Tutsi—the culmination of European colonial divisionism—Rwanda laid down a new milestone in the liberation of its legal institutions.

Namely, on July 15, 2019, the Parliament historically proclaimed an end to all colonial laws:

All legal instruments, brought into force before the date of independence of Rwanda, are repealed.[3]

That is a victory for social justice. As discussed in our previous article, the persistence of colonial laws, originally designed to oppress, continued to exert harm. These legal vestiges can jeopardize the rule of law, causing delays in policy implementation and unjust outcomes.[4] In health policy, the consequences can mean the difference between life and death.[5] Especially today, at a time of a global pandemic, when every moment counts to control the spread of a highly lethal infectious disease, there is no room for interference from the ghosts of colonial oppressors.

No doubt, Parliament’s bold stroke will surface some questions about how to interpret certain laws, or how to adjudicate in the absence of certain now-abolished statutory rules. But the country’s modern legal institutions are resilient; they have the tools and capability to resolve those questions. These challenges are minor when compared to the malignancy that has finally been excised from the code. As Rwanda moves into the future on a more just and dignified legal foundation, it now has an opportunity to inspire other post-colonial countries in Africa and beyond to consider doing the same.

I. A World Ready To Dismantle Colonialism: From Statues To Statutes

Globally, societies have mobilized to reject historic instruments of oppression. What began as nationwide protests against institutionalized racism in America, especially its manifestation in police brutality against black civilians, has ignited a wave of actions across the world. While Americans tear down statues of Confederate generals who fought for the institution of slavery in the country’s south, elsewhere in the world protestors have set their sights on “statues glorifying men made famous or rich by the slave trade and colonialism.”^[6] In Europe and Africa, the movement has revived an overdue reckoning with the unfinished business of decolonization. Rwanda’s reform coincides with this global context of introspection, activism, and change.

Among these international reactions, a public debate has emerged around Belgium’s violent colonial legacy—the same evil past that continues to haunt communities in both Europe and Africa, including Rwanda. Across Belgium there has been “a wave of support for the removal of all monuments built to honour [King Leopold II,] the former king, who brutalised Congolese people.”^[7] In a particularly powerful instance, a fourteen year old boy of Congolese descent launched a viral petition demanding the City of Brussels remove all statues of Leopold II.^[8] As the sixtieth anniversary of the Democratic Republic of the Congo’s independence approached last year, monuments to Belgian colonialism were removed in Antwerp, Ghent, and Ixelles.^[9] Even as far away as Western Australia, on July 3, 2020, the local government changed the official name of the King Leopold Ranges to the aboriginal name, Wunaamin Miliwundi Ranges, finally rejecting the tyrant’s “grievous atrocities, brutal oppression and the enslavement of African people.”^[10] The response is not unique to the Belgian colonial legacy: other European communities have also toppled monuments to their own slave traders and colonialists too.^[11]

To its credit, the Belgian government has also taken a few steps. It invited experts from the United Nations Office of the High Commissioner for Human Rights (“U.N. Human Rights”) to visit Belgium for an independent assessment of concerns about human rights and racism.^[12] In 2019, their report concluded that the “public discourse does not reflect a nuanced understanding of how institutions may drive systemic exclusion” and inequity.^[13] The experts “note[d] with concern the public monuments and memorials that are dedicated to King Leopold II and Force Publique officers.” But, looking deeper, they also advised “finally confront[ing] and acknowledg[ing] King Leopold II’s and Belgium’s role in colonization and its long-term impact on Belgium and Africa.”^[14] As the expert report recognized, removing statues is important, but true healing must reach institutional reforms.

A year later, on July 17, 2020, Belgium’s Chamber of Representatives responded: it established a special commission to examine King Leopold and the Belgian state’s colonial past in Congo, Rwanda, and Burundi, including the role of the Catholic church and other non-state actors.[15] The commission will not only assess “symbolic actions” to promote reconciliation – such as “the withdrawal . . . of statues honoring or having honored the protagonists of colonization”[16]—but it is also charged to advise Parliament on substantive policy options.[17] This is a positive step, but to result in change, the commission must be well constituted, it must produce constructive guidance, and the government must finance and implement appropriate recommendations. Otherwise, it will risk falling short of the urgent mandate to reform the institutional legacy of colonialism.

In Africa, the Black Lives Matter movement has also found expression in the anticolonialism struggle, in former colonies of all stripes. Ugandan feminist, Rosebell Kagumire, describes how “[p]rotests ignited by Black Lives Matter action have gone beyond solidarity to put a spotlight on the work that remains unfinished at home.”^[18] In some instances, such as the #EndSARS movement in Nigeria, the call for social justice has demanded an end to police brutality in African societies too. But as in other parts of the world, many actions have targeted symbolism and discourse.

For example, Kagumire cites an initiative to rename Ugandan streets bearing the names of colonizers, which attracted little attention in 2017 but which now is gaining traction,^[19] and petitioners seeking to remove colonial monuments in Cabo Verde.^[20] Indeed, long before the Black Lives Matter movement arrived, African activists were calling for the removal of colonial monuments. Students at the University of Cape Town in South Africa, after lengthy protest, achieved the removal of the school’s iconic statue of Cecil Rhodes in 2015.^[21] Further north, a Cameroonian activist, André Blaise Essama, told the press, “I have decapitated Leclerc’s head seven times and toppled the statue at least 20 times.”^[22]

However, as scholars of contested monuments note, in the “long-term, the question remains: what does the removal or erasure of a statue or monument accomplish? . . . Without structural changes in justice, policing, social, and educational systems, removal will be a Pyrrhic victory, a purely symbolic act.”^[23]

As post-colonial societies explore avenues for channeling the movement into something deeper, targeting structural change, they may take interest in Rwanda’s recent legal reform. Few others have addressed Belgian colonialism so profoundly. To be sure, law is not the only source that perpetuates colonial injury: some of the structural damage is also embedded in persistent economic inequality and harmful social norms. But the laws and institutions designed by colonial regimes remain in place in many countries. Those legal malignancies should also be excised.

This past year, Rwanda offered the world an example of a bold step. With a single wholesale repeal, the country once colonized by Germany and Belgium abolished all colonial laws that remained in force.

II. Rwanda’s Path to Legal Emancipation and Its Achievements

A. The Context: Persistent Legal Barriers to Health, Human Rights, and Development

In our article, The Persistence of Colonial Laws, we made a case for repealing all colonial laws in Rwanda.[24] Drawing upon first-hand experience, we described a number of ways in which these entrenched tools of the former oppressor perpetrate injustices against all citizens. Specifically, they perpetuate inequality through both the discriminatory policies that such laws were crafted to promote and their real discriminatory effects in practice.[25]

We pointed out colonial laws’ wide-ranging deleterious effects on health, including a history of problematizing the public health response in outbreaks.[26] This is not a surprise—laws governing health were no exception to colonialism’s perverse motives and prioritized a deliberate policy to subjugate, divide, and control African societies over their actual health and well-being. As described by Anne Cornet, a historian of Belgian colonialism, “the activities that were rolled out for a real health objective at the same time converged toward the colonial system’s control, as a whole (State, missions, private sector), over the local populations.”[27] They reflected a racist occidental vision of African society, “a world where whites and blacks lived in parallel, but not together, a world where African society was essentially perceived as divided into social and ethnic groups.”[28]

Colonial health laws continued to interfere in governance through recent years. For example, we described how they delayed the Ministry of Health’s ability to implement international recommendations to address malnutrition, which in turn perpetuated harm to the health of people living in Rwanda.[29] We also detailed how they impaired the rule of law and separation of powers in Rwanda’s government by inviting officials to selectively enforce some colonial provisions but not others, damaging the health of the country’s modern institutions.[30]

We described the extraordinarily onerous task of locating antiquated laws, which would be impossible for some.[31] Especially in a post-conflict setting, obscure, hard-to-find laws are only accessible to people with the greatest resources, further reducing access to justice for the poor.[32] And we also highlighted the broader normative problem of building a more just system on a legal foundation that is discriminatory, incomplete and scattered.[33] Perhaps most importantly,

[a]s a matter of social justice, human rights, and due process, no Rwandan should ever be subjected to a decree of a colonial governor or even wonder if she might be. Even if a court correctly refuses to enforce a colonial law, the damage is already done: no citizen … should be subjected to the indignity of standing before a judge to defend herself against a colonizer’s decree, brought into the court by a creative opponent.[34]

In addition to the public policy concerns, we addressed legal problems presented by these colonial vestiges. “Across the board, every colonial law . . . is in conflict with certain provisions of Rwanda’s Constitution,” including problems relating to the country’s independent sovereignty; unconstitutional objectives promoted by colonial laws; discriminatory effects of keeping such laws on the books; the unconstitutional effect on the rule of law; and procedural defects inherent to laws not promulgated in accordance with the mechanisms permitted by the Constitution.[35]

Contemporaneously, the Chief Justice of Rwanda at that time, Professor Sam Rugege—a supporter of law reform in the country—also lent his voice to the cause. In his speech to open the new judicial year on October 10, 2017, he urged the government to consider the issue:

It is not normal that after more than fifty years of independence, we still have on our statute books, laws promulgated by the King of Belgium and the Governor of Rwanda-Urundi which are obviously not in sync with the times and which sometimes are used capriciously in our courts. Competent institutions should examine whether it is not high time that Rwanda discarded these laws.[36]

To resolve this, we proposed several options to remove colonial statutes.[37] The country could wait for a revised code of Rwandan law to be completed, though lengthy delays were certain with that approach.[38] Alternatively, a task force could be created to review only the obsolete health laws, singled out as uniquely problematic, but we noted the costs and inefficiencies associated with that incomplete solution. We suggested that the most ambitious and effective approach would be a wholesale repeal of all colonial laws—a view supported by the Chief Justice as well.[39] Under that scenario, we noted the option to enumerate specific exceptions that might be saved. Finally, if legislative efforts fail, we identified grounds on which the Supreme Court could invalidate all colonial laws at once.

Rwanda went for the most ambitious option. In fact, the government did not even advocate for any enumerated savings.[40] If the law was imposed by a colonizer, it was out – no exceptions.

B. The Rwanda Law Reform Commission Takes on the Fight Against Colonialism

The Rwanda Law Reform Commission (“RLRC” or the “Commission”) coordinated the effort to topple colonial laws. The Chairman of the Commission at that time was Aimable Havugiyaremye. A legal academic who frequently lectures at the University of Rwanda, Havugiyaremye once led the country’s training programs for legal practitioners as the rector of the Institute of Legal Practice and Development. But as a former investigator of the Gendarmerie Nationale, who today serves as the country’s Prosecutor General, he would prove to be a formidable protagonist for prosecuting the case against the laws of Rwanda’s former oppressors.[41]

Havugiyaremye dispatched a team led by Alain Songa, Head of the Department of Research and Reform, to dig up all of the colonial laws they could possibly find. Well before the pandemic, the team donned face masks to descend into the dusty chambers of the Ministry of Justice’s basement. They emerged from the excavation having unearthed over 1,000 pre-independence laws.[42] Indeed, the Commission confirmed that “some [were] still being used in court, like the law of 1888 related to contracts and conventions.”[43]

Despite the Commission’s extensive efforts, the lawyers could not verify that there were no colonial laws they may have missed; more could be lurking in other basements, in a Belgian archive, or even in the Stanford Law Library’s depository in the United States.[44] “It was difficult,” Havugiyaremye recalls, “you could find a list of the title of the laws, but . . . could not find the content.”[45]

This became an important consideration in Havugiyaremye’s decision to prepare a wholesale repeal of all pre-independence laws, rather than recommending that Parliament only repeal the list of laws that were retrieved.[46]Havugiyaremye later recounted, “the reason we had to repeal all colonial laws is that even though we were able to identify [over a thousand] colonial laws, the list is not exhaustive.”[47] For example, “because the colonial powers subjected Rwanda to all criminal laws in Congo Belge, there could still be more laws that one could invoke and say [they are] applicable in Rwanda, even though we are not even aware of [them].”[48]

Nevertheless, drafting the repealing law without saving any exceptions was a daring decision, especially as some stakeholders felt that colonial statutes were still of value. Legal advisors for the Ministry of Health, for example, were hesitant and had informed RLRC that they would like to retain several colonial-era laws.[49] The Commission decided not to endorse such requests, preferring to encourage ministries to propose new or revised laws wherever colonial rules were in use.[50] Asked why RLRC recommended a categorical approach, leaving no exceptions behind, Havugiyaremye shared that a primary motive was because “Rwandans were not the ones to pass those laws, so we don’t even know what was the intention behind [them].”[51] Further, he explained, “we have to find our own solutions to our own problems, instead of relying on others’ thinking about how we should solve our problems.”[52]

“Most of the matters that were provided for by colonial laws are now provided for by recent new laws,” the Law Reform Commission determined; therefore, any “gaps in terms of written laws are really very few.”[53] In any event, as we had argued before and as Havugiyaremye agreed, if statutory “gaps” appear, the system has an ability to handle them: “we do have a legal basis for filling the gaps . . . when something is not provided for by written laws. The basis for that is the provision in the civil code.”[54] Indeed, where a matter is not addressed in a parliamentary statute, Rwandan procedure allows judges to decide cases based on “the rule they would have enacted, had they to do so, guided by judicial precedents, customs and usages, general principles of law and written legal opinions.”[55] In an interview with The New Times, Havugiyaremye described the Commission’s view that “our legal system now has sufficient legal instruments to regulate both civil and criminal matters,” citing judges’ ability to employ “logic, legal precedents, and common sense” to interpret the law where a statute may be silent.[56] In the event that such solutions would be needed, the Commission even saw a potential benefit for the further development of Rwanda’s hybrid legal system:

In the civil law system, it’s as though nothing can be done if there isn’t a written law behind it. Now judges will have to develop their legal thinking instead of only applying the law that is written . . . Laws should be considered as tools that can help you to solve problems or to render justice, but they aren’t the only ones. There is [also] equity, in terms of what is just for society.[57]

Once the Commission prepared the draft law, it was presented to the President’s cabinet, which approved its submission to Parliament. The public debate began.

C. The End of Colonial Laws

With the cabinet’s endorsement, local media reported: “​​It is here that the interesting debates will occur, as interested parties battle for complete removal of some laws. In other countries, such a process to repeal colonial laws has seen heated debates especially on laws of free expression and assembly, and women rights.”[58] A local outlet, The Chronicles, laid out the stakes: “Rwanda will either be still in bondage” or freed from the “legacy of the ‘colonialists’—often accused of setting in place the infrastructure that led to the 1994 genocide against the Tutsi.”^[59]

The Rwanda Law Reform Commission found that feedback from lawyers, in general, was less disturbed by the law’s colonial legacy. “[Lawyers] were used to citing even entire books of law,” without questioning the integrity of what lay within, Havugiyaremye says, describing how some attorneys broadly cite “‘civil law book one,’ but when you look at the actual law itself, you realize it was a [colonial] royal decree. Which means we were somehow blind.”[60] He suggests that full emancipation also requires a transformation in legal education so that lawyers are taught to think more critically about legal institutions, both those they inherit and those they themselves develop: “The way we were taught laws, lawyers kept a colonial mentality.”[61]

On the other hand, the Commission found that “the [general] population . . . couldn’t even believe that we . . . still use the colonial laws,” and most “comments and responses [expressed] surprise that we had not already repealed these laws.”[62]

In an editorial published in The New Times, the Rwandan newspaper warned, “[from] a legal point of view, the country could be sitting on a ticking time bomb. An example is the zoning law that reserved some neighbourhoods for whites only. Therefore, there is legal ground to evict some of the residents of upper Kiyovu.”[63] The press highlighted “[a]nother ridiculous law . . . enacted in 1930 [that] forbade bars from selling alcoholic drinks on credit,” which if enforced, could leave the proprietor with “no legal recourse in case someone defaulted.”[64] The paper cautioned that some colonial laws may “seem harmless, but it is prudent not to leave any loose ends . . . repealing all those colonial laws and orders is long overdue.” [65]

The media also cited a commonly discussed example: the Catholic Church’s “massive land grab,”[66] which made it “the biggest landowner in Rwanda” under a 1943 Belgian law transferring large tracts of land to its control.[67]Notwithstanding this expropriation, the Rwanda Law Reform Commission clarified that the Church is not obliged to surrender its property in Rwanda, “an acquired right under the country’s laws.” But RLRC identified the example to illustrate that colonial laws were not enacted with Rwandans’ interests in mind: “[they] were enacted in favour of some colonialists themselves or missionaries.”[68]

The proposed repeal came before the parliamentary standing committee on political affairs and gender in the Chamber of Deputies, the first step before being considered by the full Chamber. There, the State Minister for Constitutional and Legal Affairs, who at that time was Evode Uwizeyimana, exclaimed: “These are not laws that we should be proud of keeping.”[69]

Unsurprisingly, one Belgian legal advisor to the former genocidal regime (which had retained the colonial laws), responded by writing to a Rwandan newspaper to dispute the repeal. He even encouraged keeping some of the colonial laws. He admonished that “it would be wise to review them one by one” and better to wait to “replace them by new legislation if and where necessary.”[70]

That approach had already been considered and rejected by the Commission. RLRC wanted to avoid what had happened in India.[71] In 2014, the Indian government renewed a stalled process to identify and review colonial laws one-by-one before repealing them. The process led to delays over many years.[72] India’s inefficient and torpid approach attracted a great deal of public criticism, including in the international press, which drew attention to colonial laws that were still being enforced in Indian courts during the multi-year, protracted reform process.[73]

On July 15, 2019, the final debate took place in the Lower House of Parliament. The chairperson of the Political and Gender Equality Committee (the “Committee”), Emma Furaha Rubagumya, advocated on behalf of the Committee to lead the attack against “legal colonialism.”[74] Rubagumya, a first-term Member of Parliament, was born in Tanzania in 1967, after her parents had fled ethnic violence in Rwanda.[75] Safeguarding her education, her family reportedly sent her to school over her grandfather’s conservative objections.[76] Now recognized as part of a generation of women lawmakers fighting for equity and progress,[77] Rubagumya took aim at the colonizer. She argued that so long as these laws remain on the books, Rwandans “are in an endless colonialism.”[78] She then pointed to examples of other jurisdictions that had already enacted a wholesale repeal of all pre-independence laws.[79] “[T]he best option,” she argued, was that “used . . . in other countries such as the United States of America, [where] Virginia . . . and New Jersey . . . repealed all the laws enacted by the British using one law.”[80]

Rubagumya advanced a broadside attack against the entire system of colonial laws, arguing that such “laws are inconsistent with the principles set out in the Constitution of the Republic of Rwanda as some of those laws are found to be based on discrimination.”[81] She acknowledged the impracticality of enforcement of some colonial laws that would now be deemed unconstitutional.[82] Rubagumya also maintained that the Constitution leaves no room for “laws enacted for the territory called Rwanda-Urundi or Belgian Congo” and “no sound justification . . . for application in a fully independent nation.”[83] She conveyed that the Rwanda Bar Association had confirmed “that these laws are outdated and do not address issues faced by Rwandan citizens.”[84] The Committee found additional reassurance from the Private Sector Federation, which “indicated to [the Committee] that, as private operators, they do not see any problem in repealing [the colonial] laws.”[85]

To assuage doubts about potential gaps in the statutory law, the Committee pointed to the civil procedure provisions that “grant[] the judge the power to adjudicate according to the rules that he/she would establish if he/she had to act as a legislator for matters not provided for by the law,” as a means for resolving issues “not . . . provided for by the laws enacted after . . . Independence.”[86] The Committee also pointed to the tools described by Havugiyaremye to manage any potential gaps, such as “the possibility to rely on case law (precedents), customs, general principles of law and doctrine” to interpret statutes or to reach equitable solutions.[87]

As the parliamentary debate unfolded, it primarily centered around the possible unintended effects that a wholesale repeal might have on the legal system. Parliamentarians considered whether there could be a destabilizing effect on the larger statutory regime in which colonial laws were integrated, on settled jurisprudence, or even on matters of international law. Those arguments were ultimately defeated by counterarguments that either refuted the risk of such hypothetical, unintended consequences or that asserted normative and deontological principles that the dignity of a sovereign society outweigh any possible negative effects of the repeal.[88]

Specifically, the debate ultimately focused on four concerns. First, one Member of Parliament questioned repealing all colonial laws when the inventory of retrieved laws was not exhaustive. He suggested additional laws “[could] be found in countries that once colonized Rwanda if only sufficient time had been [taken] . . . [T]hey must be hidden somewhere.”[89] Encouraging an extraterritorial expedition to find laws still enforceable in Rwanda, he cautioned, “we may find ourselves having repealed legal instruments that could be of certain importance to the country.”[90] Rubagumya responded that the difficulty of accessing such laws was precisely the reason why the Committee recommended a wholesale repeal: “because there is no method of accessing all those laws . . . [that] is now the reason” for “using one law to repeal [them] all.” The Committee made clear that it indeed had considered but rejected the MP’s proposed approach of reviewing laws one-by-one, noting the inefficiency other countries faced using that method.[91]

The then State Minister for Constitutional and Legal Affairs, Evode Uwizeyimana, pointed to the arguments that enforceable colonial laws are in tension with the rule of law because they are not readily accessible, except for the privileged few who have the resources to scour the earth. He noted the absence of a reliable database or repository of the primary texts that had once been imposed in African colonies.[92] He challenged the MP, “what is then the point if those laws are not available? Where does the person using those laws get them from?” Defending the need to abolish (rather than search for and exhaustively inventory) “any law that the colonialist took with him [or] her in his [or] her bag,” the former State Minister went on, “[h]e may still be keeping it in Belgium and will later come back. If ever he comes back, it is our duty to tell him that the law is among those we have repealed.”[93]

Second, another Member of Parliament, Deputy Nyirarukundo, questioned the impact that repealing colonial statutes would have on prior judicial opinions, issued in reliance on those laws.[94] Uwizeyimana asserted that jurisprudence would not be invalided just by virtue of the fact that the laws it addressed were repealed, because the decisions were issued by lawfully constituted courts of an independent Rwanda.[95] Furthermore, he assured Parliament, “anything that was done pursuant to the law in force at that time” will remain valid even if Parliament subsequently repeals the law.[96] To illustrate the example, he argued: “[M]ost of you may have attended . . . the former National University of Rwanda,” which has been replaced by the University of Rwanda; “Should we say that degrees of those who attended the National University of Rwanda are not valid these days? The answer is simply no.”[97]

Third, Deputy Nyirarukundo also suggested, in passing, that some of the colonial laws may be harmless. The comment inspired a forceful refutation from those in favor of wholesale repeal. Rubagumya cited the example of land reform that had been considered during the development of the legislation.[98] When a new land law was promulgated several years ago, one of the issues it had to resolve was a colonial holdover from a 1920 law which assigned ownership to whomever held title to the land, even when such title had been obtained through fraud. Uwizeyimana added, “[T]hose who worded the article are the very ones who came and obtained ownership title, but . . . citizens at that time were not aware.”[99] Though Parliament had already done away with that particular land provision, Rubagumya and Uwizeyimana took aim at the whole lot.[100] Uwizeyimana argued, “these laws pose a serious problem because they take us back into the colonial era. Of course they cause a problem . . . because we are a sovereign country . . . that recovered its political independence and . . . [enjoys] legislative autonomy.”[101] He elaborated:

We have royal decrees which are in force in a country which has no kingdom, but [in] a country with a republic. I do not think anyone has an explanation [for] this . . . As of today, what does “Ruanda-Urundi territory” stand for? As of today, what does “the Belgian Congo territory” stand for? Who rules over this territory? . . . We should not even start a debate over these issues because we would even feel ashamed to see committee clerks taking minutes of debates over those issues![102]

Fourth, the debate addressed questions about the effect on international law in Rwanda. One MP sought clarification as to whether international treaties previously ratified would be affected by the repeal of colonial laws.[103] Another raised concerns about territorial integrity. Pointing to “the Berlin Conference of 1885, which established boundaries,” the MP asked if, by repealing pre-independence laws, “we would be removing boundaries.”[104] The Committee reassured the Chamber that international treaties would not be affected because they are excluded from the definition of repealed “legal instruments.”[105] Additionally, Rubagumya responded that “issues related to repealing international treaties, are channeled through another process . . . conducted with the assistance of the Ministry of Foreign Affairs.”[106] The country’s boundaries would not be affected, she asserted, because they are also defined by Rwanda’s constitution.[107] Uwizeyimana concurred: “[T]his issue is beyond the jurisdiction of this Parliament . . . [which] cannot remove those boundaries.”[108]

Parliament’s debate about the persistence of colonial laws depicts a moment in the country’s history where society grappled with questions about its modern identity. As Rwanda marked the twenty-fifth anniversary of the genocide that had once torn it apart, its elected representatives continued to reach further back in time, taking aim at the colonial roots of the country’s past conflict. They emerged from the debate with a resounding decision that those relics have no place in Rwanda’s future: with 56 votes in favor and no votes against, the law repealing all colonial laws passed.[109]

The repeal was signed into law by the President of the Republic on August 22, 2019, and on September 23, 2019, the Official Gazette published Law Nº 020/2019 of 22/08/2019 Repealing All Legal Instruments Brought into Force Before the Date of Independence.[110] The many dangers outlined in The Persistence of Colonial Laws were finally laid to rest: There would be no more searching high and low for missing statutes. No more wondering how to adapt the law’s written references to the colonial gouverneur général or to les indigènes.[111] No more ministers or prosecutors contemplating whether or not to enforce this one or that one. No more time spent postulating the intention of a policy behind the colonizer’s law. No one in Rwanda ever again asked for her defense against King Leopold’s decree.

D. The Path Ahead

With the repeal executed, the anticipated trade-offs will now become real. Courts will need to consider how to resolve conflicts that were once governed by a colonial rule that no longer applies. Reliance on other applicable rules, precedents, or even considerations of equity may need to provide a bridge to new rules. With time, if any such new rules crystalize, once established they should become easier to anticipate.

So far, there have not been formal complaints related to how to fill “gaps”; the legal system seems to be adapting. No doubt, some will express frustration by the uncertainty of the new approach. One question that has already arisen in legal circles in the months following the repeal is a question about how to interpret laws that were enacted after independence, but which refer to colonial laws. For example, Law N°45/2011 of 25/11/2011 Governing Contracts provides that the Decree of 30/07/1888 on contracts or conventional obligations applies for certain “no[n-]contractual obligations, special contracts, civil liabilities, [and] limitations.”[112] Legal practitioners have expressed uncertainty about how to understand the “gap” left by abrogation of the colonial decree.

For statutory interpretation problems such as these, other law reforms that are underway may help. The RLRC has been working to identify and fill any statutory gaps in need of new legislation. A planned interpretation act may also help: Draft Law N°………. Of ……….. Governing Interpretation of Laws had already been prepared by the Commission prior to repealing the colonial laws. If it is eventually passed, that draft law provides basic rules for interpreting references to repealed or substituted laws.[113] It would also codify a general savings provision, which would preserve accrued rights and obligations when laws are repealed (much like the rule the Commission’s statement referenced regarding land the Church expropriated).[114]

Conclusion: An Example for Other Post-Colonial Countries

Rwanda’s action may have come just in time. Eradicating all colonial public health laws just a few months before the emergence of the COVID-19 pandemic, Rwanda may have spared itself from costly delays. Liberated from having to navigate through any colonial rules, Rwanda has been able to respond with remarkable agility to a public health emergency of international concern. Gone are the days when government agencies had to seek presidential-level decisions to supersede the obsolete minutiae of colonial decrees, such as those once required by the Ministry of Health to implement international recommendations to combat malnutrition.[115] The old morass of laws, which had to be circumvented in modern times, had even provided for discriminatory treatment between white Europeans and black Africans when imposing quarantine and isolation rules.[116] Describing the country’s COVID-19 epidemic response to the World Health Organization, the Minister of Health acknowledged, “[a]ny health system is only as strong as its weakest link.”[117] That includes its legal underpinnings. Rwanda’s effective response has even attracted international media attention, as some ask what other countries might learn from it.[118]

By contrast, in India—where the country has undertaken a prolonged investigation into colonial laws before repealing them in piecemeal fashion—not only has the approach been criticized for the reasons described above, but despite the noble effort, the colonial laws continue to impact health. While the government urgently fights an outbreak that has expanded into one of the world’s largest COVID-19 epidemics, critics have argued that a colonial law, the Epidemic Disease Act of 1897, may be hindering the central government’s ability to implement and enforce control measures.[119] The law, which has been described by critics as “the most draconian colonial legislation,” was originally enacted by British authorities to combat an outbreak of bubonic plague. On one hand, some claim it does not allow the central government sufficient authority to coordinate an agile and effective response to the pandemic.[120] On the other hand, it is also criticized by those who feel that it hands unchecked power to state governments, failing to account appropriately for human rights and civil liberties.[121]

Other post-colonial countries might find a valuable example in Rwanda’s experience. For example, colonial mental health laws, vagrancy laws, and witchcraft laws are among the many relics across the region that perpetuate structural violence and even abusive policing. Some have already taken notice.

In another part of Africa, in Côte d’Ivoire, one presidential candidate in the recent election initiated the debate in that country, citing Rwanda’s repeal as an inspiration for Côte d’Ivoire to consider doing the same^[122]:

I applauded last month when I saw President Kagame of Rwanda denounce, and commit to change, a thousand laws that had been issued during the colonial period. That’s enormous for Rwanda. A thousand laws that defined everything and they were still there [in the country] after the colonizers departed, and [those laws] continued to preserve the colonial system. That’s what we are doing here [in Côte d’Ivoire] . . . [w]ith monetary affairs, as well as with property affairs, military affairs, educational affairs, administrative affairs, judicial affairs, socio-cultural affairs, sporting affairs, and we should look at these texts and throw all that away and conserve those texts which match our needs, which match our orientation, which match the direction that we want to take. And that is what will bring independence . . . it’s with that rupture that we should truly commit to our independence.^[123]

Moreover, even if the suggestion is raised by a politician, it does not need to become a partisan one. Rwanda’s experience shows that colonial laws can be abolished without unwinding all rights previously accorded to one group or another.[124] If disagreements happen to arise about specific laws that some groups wish to preserve—especially any which may be particularly sensitive in the national context—then compromising to save a list of exceptions need not stand in the way of removing all the rest. Those few exceptions could be managed later, through different reform processes, and on their own timeline. In the meantime, to confront inequality and structural violence in post-colonial societies, the general validity of colonial legal instruments, in aggregate, deserves to be debated as an important normative and non-partisan matter.

Alice Wairimu Nderitu, an expert on the Kenyan National Committee for the Prevention and Punishment of the Crime of Genocide, War Crimes, Crimes Against Humanity and All Forms of Discrimination, applauded Rwanda’s decision to “repeal[] laws left over from German and Belgian colonial rule era, designed with one central purpose to separate the races, particularly the white and black people, and to subjugate the latter.”[125] She too has encouraged others to do away with laws “designed to subjugate Africans [that] still lurk in some African statutes.”[126]

However, like Aimable Havugiyaremye,[127] Nderitu also points to education reform as an essential component of achieving emancipation from colonial law. She suggests “[t]he thoroughness of the colonial enterprise’s educational systems forms part of the reason post-independence governments are not getting rid of colonial laws.” Such reform, she argues, is necessary for future generations to “challeng[e] hateful beliefs” embedded in colonial laws, which can “lead to targeted violence[,] such as understanding the importance of not only knowing why almost one million people were killed in the Rwandan Genocide Against the Tutsi [sic] but more importantly, why ordinary people were convinced it was okay to kill.” [128] Indeed, the story of Rwanda’s reform shows that scholarship can contribute to supporting real world changes.

Education and scholarship will also be essential for Rwanda and other countries to more fully heal from those harms that cannot be resolved by eradicating the colonial laws. Though legal reform is important to remove the harms lurking in old laws, education and scholarship is necessary to prevent the next generation of policymakers from inadvertently perpetuating colonial objectives through the recycling of the same colonial policies in newly drafted laws.[129] In addition, education and scholarship is necessary for understanding what, if any, prior practices and solutions were destroyed through colonial legislation but which might warrant restoration in today’s context.[130]

Reflecting on Rwanda’s experience, Aimable Havugiyaremye says, “sovereignty should be understood even in the context of making laws. We are a sovereign country, we know our problems, we should be the ones to solve our problems. In the process of making laws, you are addressing your issues, so you should be the one to make those laws. [Our experience] should even be a lesson for other countries.”[131] As communities continue to challenge institutional violence and racism all around the world, perhaps other post-colonial countries will find inspiration in Rwanda’s decision to not only topple the monuments, but to also tear down the legal structures of past oppression.

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[*]       Agnes Binagwaho, M.D., M(Ped), Ph.D. is a pediatrician, Senior Lecturer in the Department of Global Health and Social Medicine at Harvard Medical School, Vice Chancellor of the University of Global Health Equity in Rwanda, and Adjunct Clinical Professor of Pediatrics at Dartmouth College’s Geisel School of Medicine. She served for 14 years in senior government positions in Rwanda’s health sector and served as Rwanda’s Minister of Health from 2011 to 2016. Richard Freeman, J.D., M.P.P. works in Rwanda as an Advisor of the Rule of Law Program at Stanford Law School.

[1]        See Mike Baker et al., Three Words. 70 Cases. The Tragic History of ‘I Can’t Breathe.’” N.Y. Times (June 29, 2020), https://www.nytimes.com/interactive/2020/06/28/us/i-cant-breathe-police-arrest.html [https://perma.cc/446Z-NR6Y] (“Mr. Floyd’s dying words have prompted a national outcry over law enforcement’s deadly toll on African-American people, and they have united much of the [U.S.] in a sense of outrage that a police officer would not heed a man’s appeal for something as basic as air . . . Over the past decade, The New York Times found, at least 70 people have died in law enforcement custody after saying the same words—‘I can’t breathe.’”).

[2]       See Agnes Binagwaho, Richard Freeman & Gabriela Sarriera, The Persistence of Colonial Laws: Why Rwanda is Ready to Remove Outdated Legal Barriers to Health, Human Rights, and Development, 59 Harv. Int’l L. J. Online 45 (2018), https://harvardilj.org/2018/06/the-persistence-of-colonial-laws-why-rwanda-is-ready-to-remove-outdated-legal-barriers-to-health-human-rights-and-development/ [https://perma.cc/4XAN-FG3X] [hereinafter Persistence of Colonial Laws].

[3]       Law Nº 020/2019 of 22/08/2019 Repealing All Legal Instruments Brought into Force Before the Date of Independence, Art. 3 (Rwanda), https://www.rlrc.gov.rw/fileadmin/user_upload/LawsofRwanda/Laws%20of%20Rwanda/1._Fondamental/1.1.%20National%20Instruments/1.1.12._Repealing_laws_adopted__before_the_independence/1.1.12.1._Repealing_Laws_of_before_independance_Law_no_020_of_2019.pdf [https://perma.cc/5FR6-RECJ] [hereinafter Law Repealing All Legal Instruments Brought into Force Before the Date of Independence].

[4]       See Persistence of Colonial Laws, supra note 2, at 45.

[5]       See Persistence of Colonial Laws, supra note 2, at 45.

[6]       John Campbell & Jack McCaslin, George Floyd’s Murder Revives Anti-Colonialism in Western Europe, Council on Foreign Rel. (June 16, 2020), https://www.cfr.org/blog/george-floyds-murder-revives-anti-colonialism-western-europe [https://perma.cc/A5K3-2D9B].

[7]       Maïthé Chini, Burned Leopold II Statue Removed from Antwerp Square, Brussels Times (June 9, 2020), https://www.brusselstimes.com/all-news/belgium-all-news/115940/burned-leopold-ii-statue-moves-to-antwerp-museum/ [https://perma.cc/Z4MD-RJHT].

[8]       See Enlever toutes les statues Léopold II – Alle Léopold II standbeelden verwijderen [Remove all Leopold II statues], Change.org, https://www.change.org/p/ville-de-bruxelles-enlever-toutes-les-statues-en-hommage-%C3%A0-l%C3%A9opold-ii [https://perma.cc/Q972-E3UQ]; Scott McClean & Sebastian Shukla, Belgium’s King Leopold II Has a 21^st Century Nemesis. He’s 14 Years Old, CNN (June 25, 2020), https://edition.cnn.com/2020/06/25/europe/belgium-king-leopold-statue-petition-colonialism-intl/index.html [https://perma.cc/4FMG-A2X7].

[9]       In early June 2020, local authorities removed one such statue from the marketplace in Antwerp, after protestors had burned it. See Chini, supra note 7; Monika Pronczuk & Mihir Zaveri, Statue of Leopold II, Belgian King Who Brutalized Congo, Is Removed in Antwerp, N.Y. Times (June 9, 2020), https://www.nytimes.com/2020/06/09/world/europe/king-leopold-statue-antwerp.html [https://perma.cc/5GPM-LQ3D]. Days later, on June 30, 2020, the city council of Ghent removed a bust of King Leopold II from a park. See Leopold II Bust Removed in Ghent on Congo’s Independence Day, Brussels Times (July 1, 2020), https://www.brusselstimes.com/all-news/belgium-all-news/119467/leopold-ii-bust-removed-in-ghent-on-congos-independence-day/ [https://perma.cc/MT4N-DH7C]. The mayor of Ixelles announced that the municipality would remove a monument to Leopold’s general, Émile Storms. See Gabriela Galindo, Ixelles Will Remove Bust of Leopold II’s ‘Ruthless’ Colonial General, Brussels Times (July 1, 2020), https://www.brusselstimes.com/belgium/119374/ixelles-will-remove-bust-of-leopold-iis-ruthless-colonial-general/ [https://perma.cc/D8NV-QVPL] (“Doulkeridis first announced the removal of the statue in May, as decolonisation activists in Belgium, galvanised by massive anti-racism protests in the US, renewed calls for the removal of colonial monuments in Belgium, and namely of statues to Leopold II.”). Unfortunately, not all authorities have followed this movement. Some local Belgian authorities have even continued to clean and restore Leopold monuments that protestors repeatedly deface with graffiti. See, e.g., Leopold II statue defaced again after clean-up, Brussels Times (June 22, 2020), https://www.brusselstimes.com/brussels/117936/leopold-ii-statue-defaced-again-after-clean-up-trone-stop-cleaning [https://perma.cc/V2S6-YLBW].

[10]     Gov’t of W. Austl., Media Statement: King Leopold Ranges Renamed to Honour Aboriginal Culture (July 3, 2020), https://www.mediastatements.wa.gov.au/Pages/McGowan/2020/07/King-Leopold-Ranges-renamed-to-honour-Aboriginal-culture.aspx [https://perma.cc/R5K8-TZGD].

[11]      For example, in England, “a bronze statue of Edward Colston, a 17th-century slave trader, was toppled into Bristol Harbor . . . And a statue of Robert Milligan, an 18th-century slave trader, was taken down in London.” Pronczuk & Zaveri, supra note 9. See also Mark Lander, ‘Get Rid of Them’: A Statue Falls as Britain Confronts Its Racist History, N.Y. Times (June 8, 2020), https://www.nytimes.com/2020/06/08/world/europe/edward-colston-statue-britain-racism.html [https://perma.cc/G8WJ-BY2P] (“[W]hen these demonstrators dumped the monument of Colston into Bristol Harbor with a splash, they also forced Britain to consider how to confront its racist history at a moment when many of the same questions are being asked in the United States . . . Colston’s ignominious fate may not bode well for a statue of Cecil Rhodes that sits uneasily at the Oxford University college where he studied. Students have campaigned for years to pull down the statue of Rhodes, whose white supremacist views are considered by some to be a precursor to apartheid.”).

[12]      See U.N. Off. of the High Comm’r for Hum. Rts., Statement to the Media by the U.N. Working Grp. of Experts on People of Afr. Descent, on the Conclusion of Its Off. Visit to Belgium, 4-11 Feb. 2019 (Feb. 11, 2019), at ¶¶ 1-3 [hereinafter U.N. Hum. Rts. Statement], https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24153&LangID=E [https://perma.cc/8SXC-PNJ5].

[13]      Id. ¶ 13.

[14]     Id. ¶ 14; see also id. ¶ 45 (“We welcome the renaming of the former Square du Bastion to Patrice Lumumba Square in June 2018 . . . and encourage . . . the removal of markers of the colonial period.”).

[15]      Belgian Parliament, Chambre des Représentants de Belgique, Doc 55 1462/001, Commission Spéciale Chargée d’Examiner l’État Indépendant du Congo (1885-1908) et le Passé Colonial de la Belgique au Congo (1908-1960), au Rwanda et au Burundi (1919-1962), Ses Conséquences et les Suites qu’Il Convient d’y Réserver [Special Commission to Examine the Independent State of the Congo (1885-1908) and the Colonial Past of Belgium in the Congo (1908-1960), Rwanda and Burundi (1919-1962); Their Consequences, and  Actions That Should Be Taken], §§ 3.1, 3.2 (July 17, 2020).

[16]      Id. § 4.2 (author’s translation).

[17]      See id. § 4.1 (building a more truthful historical record, the promotion of academic research on colonialism, and opening up and improving access to archives of colonialism in Belgium, Congo, Rwanda, and Burundi); id. § 3.6 (communications and trainings for the police and military to reduce racist and xenophobic violence); id. § 4.2 (financial support for related public initiatives, restitution of stolen patrimony, and the inclusion of victims in such processes (including when there are potential legal or financial consequences)).

[18]      Rosebell Kagumire, Black Lives Matter Resonates with Africans Pushing for Decolonisation, Glob. Reporting Ctr., Ideas (June 29, 2020), https://globalreportingcentre.org/ideas/black-lives-matter-resonates-with-africans [https://perma.cc/RS5D-STJ6].

[19]      See id. (“[I]n the wake of Black Lives Matter protests, a petition to change the street names has gained more than 5,000 signatures. It reads, ‘we believe that the removal of visible vestiges of a colonial hegemony from public spaces is a crucial part of a process of decolonisation and ending an era of domination and impunity.’”). See also Kampala, Uganda’s Capital, is Littered with ‘British’ Roads, 55 Years Since Independence, Storyteld, https://storyteld.net/kampala-ugandas-capital-is-littered-with-british-roads-55-years-since-independence/ [https://perma.cc/NU7T-CX5Q] (cited by Kagumire). See, e.g., id. at 1:54 (“55 years on, can we really claim we have independence if our capital city is littered with reminders of our former bosses”).

[20]     See Gilson Varela Lopes, Remoção de monumentos pró-escravagistas e coloniais em Cabo Verde [Removal of pro-slavery and colonial monuments in Cape Verde], Petição Pública, https://peticaopublica.com/pview.aspx?pi=PT100526 [https://perma.cc/XFE2-E7YX] (“[V]enho por este meio, solicitar a Vossa Excia. que se julgar competente na matéria, que ordene a retirada imediata da estátua de Diogo Gomes sita no Plateau, mesmo nas imediações do Palácio da Presidência, bem como os bustos/estátuas de exploradores coloniais como Alexandre Albuquerque (Plateau), Serpa Pinto (Fogo), Sá da Bandeira, Diogo Afonso e Sá da Bandeira em São Vicente (Mindelo).” [“I hereby request that your Excellency, deemed to have authority over the matter, order the immediate removal of the statue of Diogo Gomes located on the Plateau, in the vicinity of the Presidential Palace, as well as the busts / statues of colonial explorers such as Alexandre Albuquerque (Plateau), Serpa Pinto (Fogo), Sá da Bandeira, Diogo Afonso and Sá da Bandeira in São Vicente (Mindelo).”]).

[21]      See UCT Council Votes in Favour of Removing Rhodes Statue, Univ. of Cape Town, Newsroom (Apr. 8, 2015), https://www.news.uct.ac.za/article/-2015-04-08-uct-council-votes-in-favour-of-removing-rhodes-statue [https://perma.cc/CE3P-FTCU] (“UCT Council has voted in favour of removing the Cecil John Rhodes statue from UCT’s upper campus, at a special sitting held on 8 April 2015. This follows a month–long series of protests by UCT students which foregrounded the debate around statues, symbols and the impact these have on the climate of inclusiveness on the UCT campus.”).

[22]     Dickens Olewe, André Blaise Essama: The Cameroonian Waging War Against a French War Hero’s Statue, BBC (July 1, 2020), https://www.bbc.com/news/world-africa-53148608 [https://perma.cc/XMK5-8744].

[23]     Marie-Louise Ryback Jansen & Steven Stegers, Who Will Deal with the Real Issues Once the Statues Are Out of Sight?, Euroclio (June 11, 2020), https://www.euroclio.eu/2020/06/11/who-will-deal-with-the-real-issues-once-the-statues-are-out-of-sight/ [https://perma.cc/R4SX-F9T4]. See also U.N. Hum. Rts. Statement, supra note 12, ¶ 13 (“Credible efforts to counter racism require first overcoming” the “inequalities [that] are deeply entrenched because of structural barriers that intersect and reinforce each other.”).

[24]     See Persistence of Colonial Laws, supra note 2.

[25]     See Persistence of Colonial Laws, supra note 2, at 57.

[26]     See Persistence of Colonial Laws, supra note 2, at 50.

[27]     Anne Cornet, Politiques de Santé et Contrôle Social au Rwanda: 1920-1940, at 462 (Karthala 2011) (authors’ translation) (“[L]es activités déployées dans un objectif sanitaire bien réel convergeaient en même temps vers des emprises par le système colonial dans son ensemble (État, missions, secteur privé) sur les populations locales.”).

[28]     Id. (authors’ translation) (“La separation des malades en divers groupes lors des consultations, traitements et hospitalisations est rélévatrice de la vision colonial de la société par les autorités médicales occidentales: un monde où la société africaine était elle aussi perçue comme divisée en groupes sociaux et ethniques.”).

[29]     See Persistence of Colonial Laws, supra note 2, at 46.

[30]     See Persistence of Colonial Laws, supra note 2, at 57.

[31]      See, e.g., Persistence of Colonial Laws, supra note 2, at 51-53.

[32]     See Persistence of Colonial Laws, supra note 2, at 56 (“As our team’s hunt for colonial statutes demonstrates, only those who have significant resources can dig up antiquated laws, which are hard to find. A government minister or a Stanford lawyer can deploy the resources to search the world and find one, but that access is not possible for most ordinary citizens. Yet an ordinary citizen could find herself defending against one such law in a court of law, where ignorance of the law is no defense. The effect is discriminatory, as it privileges some people who can cite laws that others cannot access.”).

[33]     See Persistence of Colonial Laws, supra note 2, at 56-57.

[34]     Persistence of Colonial Laws, supra note 2, at 57.

[35]     Persistence of Colonial Laws, supra note 2, at 57-58.

[36]     Chief Justice Sam Rugege, Address Delivered at the Launch of the Judicial Year (Oct. 10, 2017) (Kigali, Rwanda) [hereinafter October Speech] (unpublished translation provided by Chief Justice Rugege, on file with authors).

[37]     See Persistence of Colonial Laws, supra note 2, at 58-62.

[38]     The Chief Justice agreed that “[t]o reform or to replace them through the normal process can take an inordinately long time.” October Speech, supra note 36.

[39]     In his October Speech, the Chief Justice advised, “Rwanda can abrogate them immediately and replace them progressively as the need arises. This path would not create a vacuum because our law provides for what a judge must do in case of nonexistence of a law that deals with a particular issue. This method of getting rid of colonial law was applied in some countries like the United States and Singapore.” October Speech, supra note 36.

[40]    Compare Law Repealing All Legal Instruments Brought into Force Before the Date of Independence, supra note 3, with Application of English Laws, Act § 5.1 (1993) (Sing.) (“Except as provided in this Act, no English enactment shall be part of the law of Singapore”). See Persistence of Colonial Laws, supra note 2, at 60 (describing Singapore’s approach, which “repealed all British statutes at once, except for just a few that were expressly singled out for preservation”).

[41]     See Newly Appointed Prosecutor General Commit to Fulfilling Responsibilities, Igihe (Dec. 4, 2019), https://en.igihe.com/news/newly-appointed-prosecutor-general-commit-to [https://perma.cc/QE7T-WQ44].

[42]     Based on the author’s discussions with Alain Songa and Aimable Havugiyaremye in December 2018, Kigali, Rwanda. The retrieved legal instruments are listed in the annex to Law Repealing All Legal Instruments Brought into Force Before the Date of Independence, supra note 3.

[43]     Interview with Aimable Havugiyaremye, Chairperson, Rwanda L. Reform Comm’n, in Paris, France (July 14, 2019) [hereinafter July 2019 Interview with Aimable Havugiyaremye].

[44]    Based on author’s conversations with the Rwanda Law Reform Commission. See Persistence of Colonial Laws, supra note 2, at 51-52 (describing the authors’ discovery of colonial laws in the Stanford Law Library’s off-site depository).

[45]     July 2019 Interview with Aimable Havugiyaremye, supra note 43.

[46]     Interview with Aimable Havugiyaremye, Chairman, Rwanda L. Reform Comm’n, in Kigali, Rwanda (Dec. 21, 2018).

[47]     July 2019 Interview with Aimable Havugiyaremye, supra note 43.

[48]     July 2019 Interview with Aimable Havugiyaremye, supra note 43; for a brief discussion of merits of repeal despite these supposed “gaps” that could result, see Persistence of Colonial Laws, supra note 3, at 60-61.

[49]     Based on author’s conversations with the relevant team at the Rwanda Law Reform Commission during their review of the excavated colonial statutes.

[50]     Based on the author’s discussions with Alain Songa and Aimable Havugiyaremye in December 2018 in Kigali, Rwanda.

[51]      July 2019 Interview with Aimable Havugiyaremye, supra note 43.

[52]     July 2019 Interview with Aimable Havugiyaremye, supra note 43.

[53]     July 2019 Interview with Aimable Havugiyaremye, supra note 43.

[54]     July 2019 Interview with Aimable Havugiyaremye, supra note 43.

[55]     See Persistence of Colonial Laws, supra note 2, at 61 (describing Law N° 21/2012 of 14/06/2012 Relating to the Civil, Commercial, Labour and Administrative Procedure, Art. 6, now codified at Law N° 22/2018 of 29/04/2018 Relating to the Civil, Commercial, Labour and Administrative Procedure, Art. 9).

[56]     Eugène Kwibuka, Inside Colonial Laws: Among Other Things, Serving Alcohol for Free or on Credit Was Illegal, New Times (July 1, 2019), https://www.newtimes.co.rw/news/inside-colonial-laws-among-other-things-serving-alcohol-free-or-credit-was-illegal [https://perma.cc/L8X4-6NBH].

[57]     July 2019 Interview with Aimable Havugiyaremye, supra note 43. Rwanda inherited a civil law tradition from German and Belgian colonizers, but subsequently introduced elements of common law traditions as it has crafted a hybrid legal system of its own design. The judiciary continues evolving in this “hybrid” direction, as the use of common law reasoning becomes more common.

[58]     Rwanda Begins Repealing ALL Pre-Independence Laws, The Chronicles (Apr. 4, 2019), https://www.chronicles.rw/2019/04/04/rwanda-begins-repealing-all-pre-independence-laws/ [https://perma.cc/7CFM-43XV].

[59]     Id.

[60]     July 2019 Interview with Aimable Havugiyaremye, supra note 43. The Commission also determined that the constitutionality of those laws was suspect: Article 95 of the constitution describes the hierarchy of laws, and it does not mention royal decrees. No such royal decrees were issued pursuant to the process described in the Constitution, and the Constitution did not provide for any such exceptions. See Constitution of the Republic of Rwanda of 2003 Revised in 2015, Art. 95, https://primature.gov.rw/fileadmin/user_upload/documents/Official%20Gazettes/2015%20Official%20Gazettes/Official_Gazette_no_Special_of_24.12.2015.pdf

[61]      July 2019 Interview with Aimable Havugiyaremye, supra note 43.

[62]     July 2019 Interview with Aimable Havugiyaremye, supra note 43.

[63]     Editorial, Editorial: How Did Colonial Laws Survive This Long?, New Times (July 2, 2019), https://www.newtimes.co.rw/opinions/editorial-how-did-colonial-laws-survive-long [https://perma.cc/7XV6-NT82].

[64]     Id. See also Kwibuka, supra note 56 (“Under that law of 1930, alcoholic drinks consumed on the spot of their sale had to be paid for at the bar and traders were not allowed to sell the alcoholic drinks on credit or provide them for free. One of the legal analysts at the Law Reform Commission told this newspaper that since that law on prohibition to sell alcohol on credit was never officially abolished; some stubborn revellers can still drink to their thirst and refuse to pay debts.”).

[65]     Editorial, supra note 63.

[66]     Kwibuka, supra note 56 (“[A] massive land grab by the Church was made possible by a decree.”).

[67]     Editorial, supra note 63; see also Kwibuka, supra note 56.

[68]     Kwibuka, supra note 56.

[69]     Kwibuka, supra note 56.

[70]     Filip Reyntjens, Comment to Editorial, supra note 63.

[71]      See July 2019 Interview with Aimable Havugiyaremye, supra note 43; Persistence of Colonial Laws, supra note 2, at 59-60 (additional comparative examples of other countries’ experiences repealing colonial law). In addition to the comparative examples from other countries that are contained in Persistence of Colonial Laws at 59-60, RLRC’s internal research documents included analysis of how the application of colonial laws was terminated in various U.S. states, Singapore, and Ireland, along with India’s prolonged, piecemeal approach to repealing colonial laws. Materials on file with author.

[72]     See L. Comm’n of India, Obsolete Laws: Warranting Immediate Repeal, at ii (Interim report) (Sept 2014) (acknowledging delays); id. at 4-5 (describing “methodology [for] . . . collating, classifying and . . . grouping [a] huge gamut of laws spread in vast corpus of enactments”); id. at 6 (“253 laws despite having been recommended for repeal in [1998] still exist on the statute-books [in 2014].”); id. at 8 (describing process of examining “more than a thousand statutes,” categorizing them, and then “exhaustively study[ing] the statutes” before identifying “candidates for repeal”). Much as in Rwanda, the Law Commission of India identified discriminatory laws that were still on the books and long overdue to be repealed. See, e.g., id. at 14 (describing the Sonthal Parganas Act, Act 37 of 1855, which referred to a tribal population as an “uncivilized race of people,” language which the Law Commission of India stated “has no place in the modern era” and “runs contrary to the spirit of the Constitution”). See also Anu Anand, Indian Government Plans to Repeal Hundreds of Pre-Independence Laws, The Guardian (Oct. 29, 2014), https://www.theguardian.com/world/2014/oct/29/indian-government-repeal-pre-independence-laws [https://perma.cc/4ZQ7-WSLR] (“If India’s new government has its way . . . legal relics of British rule . . . could soon be repealed in what may prove to be the biggest cull of laws since 1947, when India won its independence. “Some of the laws on our books are laughable. Others have no place in a modern and democratic India,” India’s law minister, Ravi Shankar Prasad, said.”); but see id. (citing one Indian advocate who contends, “The government is simply picking low-hanging fruit to give the perception that they are bringing change. What they should be doing is reforming the penal code.”).

[73]     See Justice in India: Dropping the Scales, The Economist (May 21, 2016) (“[Lawmakers] were arguing that a 156-year-old statute that holds defamation to be a criminal offence is both unconstitutional and a danger to free speech (which it is). The petition failed. A two-judge panel’s 268-page ruling on May 13th upheld the colonial-era law.”); Government Plans to Repeal Archaic Laws Pertaining to MHA, Times of India (Apr. 11, 2016), https://timesofindia.indiatimes.com/india/Government-plans-to-repeal-archaic-laws-pertaining-to-MHA/articleshow/51782460.cms [https://perma.cc/789X-LCZP] (describing government’s “embarrassment” when it lost track of its own process, presenting archaic laws for repeal that had already been repealed at its request); Government’s Plan to Repeal Over 1,000 Archaic Laws Stuck in Rajya Sabha, Econ. Times (Dec. 27, 2015), https://economictimes.indiatimes.com/news/politics-and-nation/governments-plan-to-repeal-over-1000-archaic-laws-stuck-in-rajya-sabha/articleshow/50340866.cms [https://perma.cc/SE2V-33X8] (describing same “embarrassment”); L. Comm’n of India, supra note 72 (describing how “logjam[s]” in the parliamentary process have resulted in prolonged delays for getting multiple, separate repeals enacted).

[74]     Transcript of Parliamentary Debate, Chamber of Deputies of Rwanda (July 15, 2019) (English translation, on file with authors) [hereinafter Parliamentary Debate]; Daniel Sabiiti, MPs to Scrap the Law that Annexed Rwanda to Congo-Belge, KT Press (July 16, 2019), https://www.ktpress.rw/2019/07/mps-to-scrap-the-law-that-annexed-rwanda-to-congo-belge/ [https://perma.cc/GN9F-LS4C] (describing proposal to repeal colonial laws tabled before the Lower House of Parliament and quoting Rubagumya’s denouncement of “legal colonialism”).

[75]     See Biography of Emma Furaha Rubagumya, Republic of Rwanda, Parliament, https://www.parliament.gov.rw/index.php?id=125&width=650&detailId=410 [https://perma.cc/MK26-3D8M] (last visited Aug. 23, 2020); Rania Abouzeid, How Women Are Stepping Up to Remake Rwanda, Nat’l Geographic(Oct. 15, 2019) (describing Rubagumya’s upbringing).

[76]     See Abouzeid, supra note 75 (describing Rubagumya’s upbringing).

[77]     See Abouzeid, supra note 75 (describing Rubagumya as part of a generation of Rwandan women advocating for progress and quoting her vision for the future: “We have the frameworks, we have policies, we have laws, we have enforcement mechanisms . . . We’ve walked a journey, we’ve registered good achievements, but we still need to go further to make sure that at some point we shall be totally free of all imbalances.”).

[78]     Sabiiti, supra note 74.

[79]     See Sabiiti, supra note 74.

[80]     Parliamentary Debate, supra note 74. See also Persistence of Colonial Laws, supra note 2, at 59 (“One wholesale repeal of all pre-independence statutes would be efficient and definitive. The choice is not unprecedented. The former American colonies continued using British statutes for a period of time after independence, while developing a legal tradition of their own. In time, however, states responded to the growing need for certainty about the body of valid positive law in their jurisdictions. That need led to the repeal of all British statutes that had not been affirmatively re-enacted after independence: in 1788, for example, just 12 years after declaring independence from England, the New York legislature repealed all British statutes. Virginia did the same in 1792. As did New Jersey in 1799. And more followed.”). See also Sabiiti, supra note 74 (“MP Rubagumya defended the proposal saying that similar initiatives have been done in the USA in the states of New Jersey for example and this can happen in Rwanda with a single law decreeing scrapping of colonial laws.”).

[81]      Parliamentary Debate, supra note 74; see also Persistence of Colonial Laws, supra note 2, at 57 (“Across the board, every colonial law, no matter the content, is in conflict with certain provisions of Rwanda’s Constitution, just by virtue of its ignoble provenance.”).

[82]     See Parliamentary Debate, supra note 74; Persistence of Colonial Laws, supra note 2, at 57 (describing problems with enforcement of colonial laws).

[83]     Parliamentary Debate, supra note 74; Persistence of Colonial Laws, supra note 2, at 57 (“[L]aws imposed by foreign sovereigns . . . reflect an unconstitutional infringement on the Republic’s sovereignty by a past colonial power.”).

[84]     Parliamentary Debate, supra note 74.

[85]     Parliamentary Debate, supra note 74.

[86]     Parliamentary Debate, supra note 74. See also Law N° 22/2018 of 29/04/2018 Relating to the Civil, Commercial, Labour and Administrative Procedure, Art. 9 (“A judge adjudicates a case on the basis of relevant rules of law. In the absence of such rules, the judge adjudicates according to the rules that he/she would establish if he/she had to act as legislator, relying on precedents, customs, general principles of law and doctrine.”). See also supra p. 10 and note 48; Persistence of Colonial Laws, supra note 2, at 61 (describing Law N° 21/2012 of 14/06/2012 Relating to the Civil, Commercial, Labour and Administrative Procedure, Art. 6. (Article 9 of the 2018 revision)).

[87]     Parliamentary Debate, supra note 74.

[88]     See Parliamentary Debate, supra note 74.

[89]     Parliamentary Debate, supra note 74 (statement of Deputy Nyirahirwa).

[90]     Parliamentary Debate, supra note 74.

[91]      See Parliamentary Debate, supra note 74 (“As for us, we have [considered] the approach of proceeding with one law after the other which is the approach opted for by the Republic of India and I think [that] country is still using the same approach . . . we have specifically opted [to] us[e] one law to repeal all [colonial] laws” so as not to fail “to repeal certain laws simply because we do not know those laws did exist.”).

[92]     See Parliamentary Debate, supra note 74 (“There is no related database” for colonial legal texts that are hard to locate.); Persistence of Colonial Laws, supra note 2, at 53 (“[I]n the absence of a gazette publication of such law” there remains “a degree of uncertainty” about “the content of the law . . . and about what . . . provisions may otherwise still resurface another day.”).

[93]     Parliamentary Debate, supra note 74; see also Persistence of Colonial Laws, supra note 2, at 53 (“So long as the colonial era laws continue to be recognized as possibly valid and enforceable, we cannot rule out the possibility that other problematic health laws will emerge at an inopportune moment. Nor can we pronounce with certainty what the body of positive law is that governs health in Rwanda.”). Nevertheless, Deputy Nyirahirwa was among the very few MPs to remain unpersuaded. He continued to insist on the need to first pursue a Sisyphean task of creating an exhaustive inventory of all these hard-to-find colonial laws. Parliamentary Debate, supra note 74 (statement of Deputy Nyirahirwa) (“This is exactly where we still find the gap because we do not yet know the inventory of those laws.”).

[94]     See Parliamentary Debate, supra note 74 (statement of Deputy Nyirarukundo) (“[I]f a judge cannot invoke a law of that period, he/she shouldn’t either use as a reference, any decision made pursuant to that law. This means that we will also consider repealing those decisions.”).

[95]     See Parliamentary Debate, supra note 74 (“[The] decisions were made by the Courts of Rwanda. These are constitutional courts.”).

[96]     Parliamentary Debate, supra note 74.

[97]     Parliamentary Debate, supra note 74.

[98]     See Parliamentary Debate, supra note 74 (“[E]ven after . . . independence and recently, many laws were enacted aimed at addressing issues facing Rwandan society as it is depicted nowadays, such as issues related to privileged use of land.”).

[99]     Parliamentary Debate, supra note 74.

[100]   See Parliamentary Debate, supra note 74 (Rubagumya: “We no longer need laws dating back to the colonial era.”).

[101]    Parliamentary Debate, supra note 74.

[102]   Parliamentary Debate, supra note 74.

[103]   See Parliamentary Debate, supra note 74 (statement of Deputy Nyirarukundo).

[104]   Parliamentary Debate, supra note 74 (statement of Deputy Mussolini).

[105]   Parliamentary Debate, supra note 74 (“[Among] terms listed for definitions under this law, the term ‘international treaties’ was not part of the definitions.”); see also Law Repealing All Legal Instruments Brought into Force Before the Date of Independence, supra note 3, Art. 2.1 (defining “legal instruments” as laws, decree laws, decrees, legislative ordinances, law-ordinances, ordinances, ordinances of Ruanda-Urundi, royal orders, decrees of the Governor General, orders of the Resident and Special Resident, regulations, presidential orders, ministerial orders, edicts and declarations”).

[106]   Parliamentary Debate, supra note 74.

[107]   See Parliamentary Debate, supra note 74 (“[T]here is a new law determining boundaries of the territory of the Republic of Rwanda and . . . it is in article five on boundaries of the country which is determined by the Constitution of the Republic of Rwanda.”) (citing Constitution of the Republic of Rwanda of 2003 Revised in 2015, Art. 5).

[108]   Parliamentary Debate, supra note 74.

[109]   See Parliamentary Debate, supra note 74 (“The Law repealing all the laws established before the Independence date is voted for by 56 Deputies, nobody voted against, no abstention, two invalid votes, the law is therefore passed.”).

[110]    Law Repealing All Legal Instruments Brought into Force Before the Date of Independence, supra note 3.

[111]     See Persistence of Colonial Laws, supra note 2, at 46 (“This legal arrangement, still in force until 2012, was created by a colonial precedent: prior legal instructions regarding micronutrients had been signed by the Governor of Congo-Rwanda-Burundi in 1940.”).

[112]    Law N°45/2011 OF 25/11/2011 Governing Contracts, Art. 162 (Official Gazette nº 04bis of 23/01/2012), https://gazettes.africa/archive/rw/2012/rw-government-gazette-dated-2012-01-23-no-4%20bis.pdf [https://perma.cc/8G8S-EGHP].

[113]    The text will become available upon passage. See Draft Law N°………. Of ……….. Governing Interpretation of Laws, Art. 39.

[114]    See supra pp. 12-13.

[115]    See Persistence of Colonial Laws, supra note 2, at 46-47 (describing the need for the Ministry of Health to seek presidential orders to supersede colonial laws in order to implement changes in vitamin fortification); id. (describing colonial laws that codified discriminatory practices in the control of infectious diseases and outbreak response).

[116]    See Persistence of Colonial Laws, supra note 2, at 50 (describing examples of discriminatory rules for isolation and infection control).

[117]    COVID-19 in Rwanda: A Country’s Response, World Health Org.: News Story, (July 20, 2020), https://www.afro.who.int/news/covid-19-rwanda-countrys-response [https://perma.cc/K34T-5BNY].

[118]    Such successes are of course not attributable only to legal reforms alone; importantly, there have been concerted investments in strengthening the health system over many years. See, e.g., Why Rwanda Is Doing Better Than Ohio When It Comes to Controlling COVID-19, Nat’l Pub. Radio, at 00:04 (July 15, 2020), https://www.npr.org/sections/goatsandsoda/2020/07/15/889802561/a-covid-19-success-story-in-rwanda-free-testing-robot-caregivers [https://perma.cc/W3BB-R6DE] (“[O]ne country on the [African] continent, Rwanda, has managed to keep the virus in check”); id. at 03:34 (suggesting Rwanda’s response can serve as “an example to other low-income countries.”); How Rwanda Is Successfully Dealing with Coronavirus, CNN, at 00:01 (July 22, 2020), https://edition.cnn.com/videos/world/2020/07/22/rwanda-africa-coronavirus-covid-19-pandemic-testing-tracing-technology-busari-lkl-intl-ldn-vpx.cnn [https://perma.cc/KV3G-7CEB] (“Although Rwanda is the mostly densely populated country in mainland Africa, with limited resources as a low income country, it is emerging as one of the few nations that has effectively managed coronavirus and contact tracing”). See also COVID-19 in Rwanda: A Country’s Response, supra note 117 (describing control measures).

[119]    See Shantanu Nandan Sharma, How India Is Fighting Coronavirus with a Colonial-Era Law on Epidemics, Econ. Times (Mar. 22, 2020) https://economictimes.indiatimes.com/news/politics-and-nation/how-india-is-fighting-coronavirus-with-a-colonial-era-law-on-epidemics/articleshow/74752473.cms[https://perma.cc/WDR5-7V74] (“The main legal weapon the government possess today is the Epidemic Disease Act of 1897, a hurriedly drafted short legislation to stonewall the bubonic plague that devastated life in Bombay in 1896 . . . [T]he law does not bestow the [central government] any power beyond issuing advisories and coordinating. It cannot even regulate the transfer of biological samples.”); Gov’t of India, Nat’l Disaster Mgmt. Auth., National Disaster Management Guidelines: Management of Biological Disasters, § 3.1 (July 2008) (“The Epidemic Diseases Act was enacted in 1897 and needs to be repealed . . . It has to be substituted by an Act which takes care of the prevailing and foreseeable public health needs including . . . cross-border issues, and international spread of diseases. It should give enough powers to the central and state governments and local authorities to act with impunity, notify affected areas, restrict movement or quarantine the affected area, enter any premises to take samples of suspected materials and seal biological sample transfer, biosecurity and biosafety of materials/laboratories.”). But see Rituraj Tiwari et al., Covid-19: Antique Laws Return to Fight a Modern Disease, Econ. Times, (Mar. 21, 2020),https://economictimes.indiatimes.com/news/politics-and-nation/covid-19-antique-laws-return-to-fight-a-modern-disease/articleshow/74741315.cms [https://perma.cc/P63N-ZJMG] (“The Covid-19 outbreak has breathed life into antiquated laws, including a 19th century colonial statute that gives [state-level] authorities extraordinary powers to do just about anything to anybody to combat a contagious disease while offering no legal remedy . . . The 1897 law, introduced by the British to combat Bubonic Plague, has been described by historians as the most draconian colonial legislation.”).

[120]   See, e.g., Sharma, supra note 119.

[121]    See, e.g., Tiwari et al., supra note 119.

[122]    Mamadou Koulibaly, a presidential candidate, proposed the reform during a web address on October 10, 2019. See Mamadou Koulibaly, Jeudi, c’est Koulibaly! Le Bon Tyran et l’Abrogation des Lois Coloniales, YouTube, at 05:33 (Oct. 10, 2019), https://www.youtube.com/watch?v=5K5WMX2VMnk[https://perma.cc/DBP5-V53X]. See also Mamadou Koulibaly, Appelle à l’Abrogation des Lois Coloniales en Côte d’Ivoire, Abidjan.net (Oct. 10, 2019), https://news.abidjan.net/h/664558.html [https://perma.cc/XF7P-XEL4] (“L’opposant ivoirien Mamadou Koulibaly a appelé jeudi à Abidjan les autorités ivoiriennes à abroger ‘complètement’ toutes les lois colonials encore en vigueur dans le pays, estimant que ‘nous avons eu l’indépendance sans rompre avec le droit colonial’”) [“The Ivorian opposition candidate, Mamadou Koulibaly, on Thursday called on the Ivorian authorities in Abidjan to ‘completely’ repeal all the colonial laws still in force in the country, arguing that ‘we had independence without breaking with colonial law’”].

[123]    Koulibaly, Jeudi, c’est Koulibaly!, supra note 122, at 05:33 (authors’ translation) (“J’ai applaudi le dernier mois quand j’ai vu le Président Kagame du Rwanda dennonçait et s’engageait à modifier un millier de lois issues de la periode coloniale. C’est énorme pour le Rwanda. Mille lois qui definissaient tous et puis ils étaient là dedans depuis les colons sont partis et eux continuaient à persévérer le système colonial. C’est ce que nous faisons ici . . . Aussi bien pour les questions monétaires, les questions foncières, les questions militaires, les questions scolaires, les questions administratives, les questions judiciaires, les questions socio-culturelles, les questions sportives, et [il nous faut] regarder ces textes et puis virer tout ça et conservoir des textes correspondants à nos besoins, correspondants a notre oreintation, correspondants à la direction que nous voulons prendre. Et c’est ça que sera l’indépendance . . . c’est avec cette rupture que nous devons vraiment engager notre indépendance.”).

[124]   See supra p. 13; text accompanying supra note 66 (describing the rationale to not revoke the Catholic Church’s historic “land grab” and other property rights accrued under colonial laws).

[125]    Alice Wairimu Nderitu, None But Ourselves Can Free Minds from Mental Slavery, East Afr. (Oct. 10, 2019), https://www.theeastafrican.co.ke/tea/oped/comment/nderitu-none-but-ourselves-can-free-minds-from-mental-slavery-1429086 [https://perma.cc/QN36-UXKR].

[126]    Id.

[127]    July 2019 Interview with Aimable Havugiyaremye, supra note 43.

[128]    Nderitu, supra note 125.

[129]    For example, scholars have pointed to how the colonial authorities’ eugenics agenda has been carried over into modern legislation on mental health. See, e.g., Mohamed Ibrahim & Marina Morrow, Weaning Off Colonial Psychiatry in Kenya, J. Ethics Mental Health (Special Theme Issue I), at 2-3 (June 17, 2015), https://jemh.ca/issues/v9/documents/JEMH_Open-Volume_Article_Theme_Colonization_Weaning_June2015.pdf [https://perma.cc/7SZA-VT7Y], (describing eugenics policies carried over into Kenya’s 2014 Marriage ACT and Mental Health ACT of 1989).

[130]   See, e.g., id. at 3 (“The French doctors saw Moroccan midwives as a threat to their privilege and power over the dominance of women bodies . . . [The French colonial administration] regulated and disbanded the traditional Moroccan midwifery practices and finally outlawed them.”).

[131]    July 2019 Interview with Aimable Havugiyaremye, supra note 43.