International Law

Decision of the International Court of Justice in the Nuclear Arms Race Case

By: Maitê de Souza Schmitz

In the period of twenty months that I have served on this Court, I have been privileged to consider the interpretation and application of five treaties in cases before the Court. But I dare say that, were I to examine another fifty treaties in the rest of my term, none would be, by virtue of the existential threat to mankind posed by nuclear weapons, as critically important for the work of the Court and the interests of the international community as the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) that is the subject of the Marshall Islands v. United Kingdom case. (Judge Robinson, Dissenting Opinion)

Earlier this month, the International Court of Justice (ICJ) dismissed the cases submitted by the Marshall Islands on the Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament. With the narrowest possible majority (8-8, with the President’s casting vote), the ICJ concluded that there was no legal dispute between the Marshall Islands and the United Kingdom. The cases against India and Pakistan, which are not parties to the NPT, had slightly different voting patterns, but the same result and similar arguments and reasoning.

To dismiss the case, the majority departed from the Court’s previous case law on the definition of a legal dispute by introducing a new element to its analysis: the respondent’s “awareness” that “its views were positively opposed by the applicant”. What appears to be a simple technicality has in fact at least two systemic implications. Legally, it raises the bar for accessing the ICJ. Politically, it makes advancing the nuclear disarmament agenda through international litigation more unlikely.

The Case

In April 2014, the Republic of the Marshall Islands instituted proceedings against nine states for their alleged breach of obligations regarding the cessation of the nuclear arms race and nuclear disarmament. Of these nine states, three (India, Pakistan and the United Kingdom) had recognized the compulsory jurisdiction of the ICJ.

The Marshall Islands claimed that the United Kingdom was in breach of Art. VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which states that Parties have an obligation to negotiate in good faith “on effective measures” for the “cessation of the nuclear arms race at an early date” and nuclear disarmament. It added that India and Pakistan, though not party to the NPT, were bound by similar obligations as a matter of customary international law. The NPT is not new for the ICJ. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), the Court recognized the importance of Art VI and interpreted it as containing an “obligation to achieve a precise result – nuclear disarmament in all its aspects.” In the Marshall Islands cases, the ICJ had an opportunity to effectuate its prior dictum and revisit its position on nuclear weapons in light of developments in international law.

The dispute about having a dispute

Respondents converged on four major arguments in their preliminary objections to the case: i) the non-existence of a legal dispute; ii) the absence of “indispensable parties” in the proceedings; iii) reservations in their respective declarations accepting the Court’s jurisdiction; and iv) the lack of a practical consequence of a judgment on the merits. Pakistan also made an argument on the Marshall Islands’ lack of standing to pursue the claims.

It was unsurprising that respondents challenged the Court’s jurisdiction. It is a common litigation strategy, particularly in cases founded on optional declarations and compromissory clauses. The surprise, instead, was the reasoning adopted to dismiss the claim: non-existence of a dispute. The ICJ has well-established jurisprudence on the criteria for determining the existence of a legal dispute. In his Separate Opinion, Judge Owada refers to 19 Permanent Court of International Justice (PCIJ) and ICJ cases where the matter has been discussed. For those familiar with the Court’s jurisprudence on jurisdiction, it is a well-trodden path: start with the Mavrommatis definition of a dispute as being “a disagreement on a point of law or fact a conflict of legal views or of interests”, then add that a Party’s claim must be “positively opposed by the other” (South West Africa cases, 1962), and finally stress that this is “a matter for objective determination” (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, 1950). More recently, the ICJ has also clarified that the existence of a dispute is a matter of substance and not of form (Application of the International Convention on the Elimination of All Forms of Racial Discrimination, 2011).

The ICJ went a step further in the present case by introducing a subjective criterion: the respondent’s awareness of the existence of a disagreement. This is a major departure from previous case law, which focused solely on objective criteria. As Vice-President Yusuf points out, “the function of the Court is to determine the existence of a conflict of legal views on the basis of the evidence placed before it and not to delve into the consciousness, perception and other mental processes of States (provided they do possess such cerebral qualities) in order to find out about their state of awareness”. He adds that this “formalistic requirement” actually defeats the purpose of judicial economy, because it requires the applicant to file a new case now that the respondent is certainly aware of the dispute.

Though the majority does not give a detailed legal reasoning for this change, it mentions that “awareness” is “reflected in previous decisions of the Court” and cites two cases to support its view: Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (2016) and Application of the International Convention on the Elimination of All Forms of Racial Discrimination (2011). However, the references of the latter case do not contain any articulation of subjective awareness as they were essentially dealing with evidence to prove the existence of a dispute as traditionally understood by the ICJ – a disagreement on a point of law or fact with respect to the issue of the proceedings on the date of the Application (Paragraph 31). The same was true in the former case; the excerpt relied upon by the majority mentions “the specific circumstances” of the case and affirms that “[g]iven the public statements made by the highest representatives of the Parties, Colombia could not have misunderstood the position of Nicaragua over such differences” (Paragraph 73).

The majority argues that declarations cited by the Marshall Islands to support its claim are of “general content”, and not directed to the specific respondents. Hence, they conclude that none of the statements articulate an alleged breach by each of the respondents “of the obligation enshrined in Article VI of the NPT”. In the majority’s view, the respondent states could not be aware that the Marshall Islands were making a claim on their potential breach of obligations towards nuclear disarmament. Statements from Marshall Islands’ representatives in multilateral conferences, e.g., saying that “States possessing nuclear arsenals are failing to fulfill their legal obligations,” were not deemed sufficient. Nor was the fact that the parties held opposite views on the legality of the United Kingdom’s improvement and extension of its nuclear weapons system sufficient. In fact, regarding the United Kingdom, the majority disregarded one of the Marshall Island’s declarations because it was made in a conference on the humanitarian impact of nuclear weapons at which no British representative was present. It seems hard to believe that in a globalized world, with easy access of information, the United Kingdom would not become aware of this statement.

It is understandable that courts will be cautious about frivolous litigations. At the same time, they must balance this concern against the international community’s interest in providing access to justice and promoting the peaceful settlement of disputes. This is all the more important at the ICJ given how difficult it is to seize its jurisdiction. After this case, the Court has shifted from a “tradition of flexibility” (Judge Crawford, dissenting opinion) to a “formalistic approach” (Judge Cançado Trindade, dissenting opinion), adding another obstacle to accessing international adjudication.

The ICJ and nuclear weapons

One of the critiques made in the dissenting opinions is that the judgments failed to give persuasive reasons for departing from the ICJ’s jurisprudence on the characterization of a dispute. Some might wonder whether the subject matter of the case played any role in this shift.

The relationship between the ICJ and issues pertaining to nuclear weapons appears to be marked by firsts. In the Nuclear Test cases (1974), the Court for the first time gave binding effect to unilateral declarations made outside of a specific context (e.g., negotiation or litigation).[1] As a consequence, the ICJ refrained from deciding whether France’s nuclear tests in the South Pacific Ocean were consistent with international law following French public declarations stating its intention to abstain from future tests.

Some twenty years later, in another first, the World Court refrained from providing a definite answer on a crucial aspect of a legal question submitted to it by the UN General Assembly. In the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), the ICJ affirmed that it could not “conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense” (operative paragraph 2E). This controversial statement is the only declaration on non-liquet to date (i.e., the ICJ implied that there is no applicable law on the question).

Now, after another two decades, the ICJ again had the opportunity to decide on issues pertaining to nuclear weapons. And, again, the ICJ evaded the question. This majority’s novelty in assessing the existence of a dispute did not pass unnoticed by other judges. As highlighted by Judge Tomka in his Separate Opinion, “for the first time in almost a century of adjudication of inter-State disputes in the Peace Palace, the “World” Court (the Permanent Court of International Justice and the International Court of Justice) has dismissed a case on the ground that no dispute existed between the Applicant and the Respondent prior to the filing of the Application instituting proceedings”.

Just as the Nuclear Tests case is associated with the doctrine on unilateral declarations, so does the present dispute run the risk of being known solely for new requirements in determining the existence of a dispute. However, a more accurate reading might be to see the Marshall Islands cases as another instance in which the ICJ was asked to address the question of nuclear disarmament but found new technical arguments to avoid dealing with its substance.

In an enlightening post about the decision, Nico Krisch points out that six out of the eight judges who dismissed the case against the UK were nationals of nuclear weapons States, while the other two were nationals of countries that benefited from the cooperation of a nuclear weapon State. Could it then be that the dismissal of the cases resulted not from the willingness of the majority to reinterpret what a legal dispute is, but rather from their views on nuclear disarmament?

In 1927, the Committee of the PCIJ, while reviewing its Rules, made a strong argument on the powerful influence of nationality. In fact, debates as to whether nationality could influence a judge’s opinion feature prominently in the travaux preparatoires of the PCIJ Statute. The Procès-Verbaux of the meetings show that the need for each party to have a national judge on the bench was extremely controversial.

This controversy continued in the process of creating the ICJ. In the end, however, the Statute retained the traditional rules on this matter. The ICJ is composed of a body of independent judges who vow that they will act impartially and conscientiously. This does not necessarily mean that nationality will be irrelevant in considering a judge’s position. Previous empirical research indicated that national and ad hoc judges voted in favor of their own countries in 80% to 82% of the cases.[2]

In the ICJ’s 1996 Advisory Opinion, the distribution of votes on the most controversial holding (OP 2E) did not show a clear division between possessor and non-possessor states. In the view of the ICJ President at the time, this was “a mark of the independence of the Members of the Court” (Separate Opinion, Judge Bedjaoui). A reading of the individual opinions might give a different impression. Nationals of nuclear weapon states disagreed on the best approach for the Court to deal with the issue, not on the legality of the use of nuclear weapons.

It might be said that the split in the Court merely reflected divergent views of States on nuclear disarmament. However, if the ICJ’s composition proportionally reflected State positions on this matter, the vote would likely have tended against the legality of nuclear weapons and in favor of effective disarmament.

Given consistent failed attempts to seize the ICJ on this relevant and urgent matter, one might question whether international litigation is a viable strategy for nuclear disarmament. The Marshall Islands judgment provides insight about the majority’s views on this topic. When tracing the historic background and role of the United Nations in disarmament, the judgment enumerates three bodies with “a role in international disarmament efforts”: the UNGA, the UNSC, and the Military Staff Committee. Notably missing from this list: the ICJ itself.

Although the foregoing judgments expose serious limitations to addressing nuclear disarmament at the ICJ, resort to international tribunals could remain a viable option in the long run. A slightly different composition of the Court could have led to different results, as the votes were evenly split both in the 1996 Advisory Opinion (for OP2E) and in the case between the Marshall Islands and the UK. Nevertheless, international litigation should not be regarded as the main avenue to secure progress for nuclear disarmament. Instead, it should be seen as complimentary to multilateral negotiations. Since the ICJ decision, UN Member States adopted a landmark resolution to convene a multilateral conference in 2017 to negotiate a treaty that would prohibit nuclear weapons. This significant step in multilateral negotiations may have a much more far-reaching impact on disarmament than bilateral litigation.

* Maitê de Souza Schmitz is a 2017 LL.M. candidate at Harvard Law School and an Article Editor of the Harvard International Law Journal.

[1] The previous case on unilateral declarations (Eastern Greenland, PCIJ) was specific about declarations made in the context of a negotiation. See also Rubin, Alfred P., The International Legal Effects of Unilateral Declarations. The American Journal of International Law, 1 January 1977, Vol.71(1), pp.1-30. P. 4-7

[2] SAMORE, William. National Origins v. Impartial Decisions: A Study of World Court Holdings, Chicago-Kent Law Review, v. 34, 1956. p. 193; SUH, Il Ro. Voting Behavior of National Judges in International Courts. American Journal of International Law, v. 63, 1969, p. 224-236. p. 230.

Georgia’s Long Path to Europe Leads to New Human Rights Laws

Filed Under: Student Features

By Phillip Takhar*

Georgia has hoped, for some time, to join the European Union (EU). While progress towards this goal has been slow, Georgia has been working with the EU on a visa free travel agreement that is seen as an important step toward further integration with Europe. At the same time, the European Commission has used these negotiations to push for significant changes in certain areas of Georgian law. Specifically, the Visa Liberalisation Dialogue and Action Plan for Visa Liberalisation has led to significant liberalization of laws relating to stateless individuals and antidiscrimination. These legal changes, however, are only likely to last if the EU is willing to keep its side of the bargain and extend visa free travel to Georgians in a timely manner.

Background

Georgia, like other former Soviet Republics, is in a difficult geopolitical position. While the country would like to join the EU (although popular support is less strongly in favor than in the past), Russia vigorously opposes integration and has used propaganda, and other forms of soft power, to further diminish the idea’s popularity. For its part, Europe has been cautious about developing its relationship with Georgia so as to avoid provoking Russia. Some have argued that this may lead Georgia to move closer to the Kremlin. Pro-Russian groups have formed in Georgia over the last few years and, in 2016, even gained some seats in parliament. Still, the country’s reelection of the Georgia Dream, a pro-EU membership party, is an indication that pro-Russian sentiments have not yet met with widespread approval.

Georgia sees visa free travel status as a concrete step towards developing a stronger economic bond with Europe that will hopefully be part of its path to eventual EU membership. Georgia and the EU have been negotiating visa liberalisation since June 2012. As part of these negotiations, Georgia was required to implement an Action Plan for Visa Liberalisation (VLAP) which consisted of numerous legal, political, and bureaucratic reforms that needed to be undertaken in order for a visa agreement to be reached. Compliance with the VLAP has been assessed through four progress reports and focused on four areas: passport and travel document security, border management, internal security, and fundamental rights for its residents. Areas that have been of particular note include the status of stateless individuals and anti-discrimination against minorities in Georgia.

The Status of Stateless Individuals

In 1961 the United Nations signed the Convention on the Reduction of Statelessness to give stateless individuals certain rights to establish nationality. Most European Union member states are signatories of the Convention and the European Commission used the Convention as a standard for Georgian reform in the VLAP.

Given that Georgia shares a border with Turkey, it receives around one hundred asylum seeking applications every year. There are currently an estimated 770 stateless individuals in the country, a number that has been reduced from around 1670 over the past seven years. While the issue of statelessness is clearly important in Georgia, prior to the VLAP the President would only grant asylum to stateless individuals in “exceptional cases.”

In the first VLAP progress report, the Commission noted approvingly that Georgia’s Commission on Migration Issues Working Group on the Reduction of Statelessness had prepared a draft law on Georgian citizenship that used the 1961 UN Convention as a benchmark. Georgia had not yet signed the 1961 UN Convention, but it was considering doing so.

In the second progress report the Commission reported that Georgia had passed the Law on the Legal Status of Aliens and Stateless Persons, which recognized rights and established legal guarantees for stateless individuals in compliance with the VLAP. In particular, this legislation created a process for stateless individuals to obtain residence permits and temporary identification cards. It also guaranteed equal legal protection for stateless individuals. In addition to these domestic reforms, Georgia also resolved to ratify the 1961 United Nations Convention on the Reduction of Statelessness and passed a Law on Georgian Citizenship to match the Convention’s principles.

The third and fourth progress reports noted that these reforms fulfilled Georgia’s VLAP benchmark for freedom of movement for aliens and stateless individuals.

Anti-Discrimination against Minorities

The European Commission also used the VLAP to change Georgian anti-discrimination law. Georgia has long had issues with protection of minority rights. After the Soviet Union fell, feelings of nationalism, a lack of political representation and protection for ethnic minorities, and massive poverty created a dire situation for the Kurdish, Armenian, Azeri, and other minorities in Georgia. Unfortunately, employment and education discrimination, as well as more general public xenophobia, has historically been acceptable in Georgia. While the country did eventually create anti-discrimination laws, they did not apply to private parties. In a 2010 report, the European Commission against Racism and Intolerance stated that there were no recorded cases in which an individual was legally compensated for suffering racial discrimination.

In the first VLAP progress report, the European Commission noted that Georgia was working on a new piece of legislation intended to combat discrimination based on several categories in line with Council of Europe recommendations, including race, sex, citizenship, nationality, and religion. The Commission noted, however, that it was unclear whether the law would apply only to the public sector.

In the second progress report, the Commission reported that the Law on the Elimination of All Forms of Discrimination had been passed. This law implemented the previously noted features and was very broad in scope. It contained protections for both direct and indirect discrimination and introduced proactive measures to enhance gender equality. Despite concern that the law might only apply to government action, these protections were also extended to the private sector. In addition, this law gave the Public Defender of Georgia the responsibility to monitor issues related to discrimination for the purpose of eliminating it. The Public Defender has a number of enumerated duties, including working with international organizations and increasing awareness of the anti-discrimination law amongst those who could use it to protect their rights.

While the third progress report noted that the Anti-Discrimination law was an important step, it asserted that more work had to be done. It particularly recommended continued efforts to raise awareness of the law among its citizenry and civil servants and train legal professionals in the new law’s provisions.

In the fourth progress report, the Commission noted that the Public Defender had started an information campaign to fulfill part of its responsibility under the Anti-Discrimination Law. This campaign used a variety of media to educate the public about diversity and equality, in line with the Commission’s third progress report recommendations. Additionally, Georgia adopted a Strategy for Civic Equality and Integration that aimed to politically empower ethnic minorities. Assessing these developments as a whole, the Commission concluded that Georgia’s anti-discrimination benchmark had been achieved.

Aftermath of the Visa Liberalisation Action Plan

The fourth VLAP progress concluded that Georgia had met its benchmarks in every area of concern. It remarked that, while there would still be a need to continually monitor implementation of new laws and policies, Georgia had made remarkable progress in the areas of rule of law and justice reform.

However, despite achieving these benchmarks, Germany, France, and Italy voted against granting Georgia visa free travel status at an EU ambassador’s meeting in June of this year. Germany argued that the number of burglaries in Georgia needed to be investigated further before allowing unrestricted travel into the EU and requested that a suspension mechanism be put into any visa free agreement with Georgia, allowing the EU to freeze the agreement if it were abused by individuals staying in EU member states pass the 90-day limit.

This vote was a disappointing delay for Georgia, which had met the EU Commission’s legal requirements and hoped for a positive resolution of the issue this summer. Nevertheless, Georgian Prime Minister Kvirikashvili stated that Georgia had made impressive progress and was still committed to the visa liberalisation process and, more generally, eventual EU membership. In September, the European Parliament Committee on Civil Liberties, Justice and Home Affairs, approved visa free travel liberalisation, and this past month the European Commission approved Georgia’s bid. Georgia now must wait for the European Parliament to agree on an appropriate suspension mechanism before the visa agreement can take effect. It is expected that the plan will be approved by the end of the year.

Conclusion

The Law on the Legal status of Aliens and Stateless Persons and the Law on the Elimination of All Forms of Discrimination are both major developments in Georgian law. However, these changes are resisted by some Georgians who would prefer to turn back towards Russia. Progressive laws can only be maintained in the face of this opposition if there is stability in Georgia’s regional partnership with the EU. The EU’s goal of promoting human rights in the region would be well served by encouraging the continuation of these Georgian laws. Though Georgia has been in compliance with VLAP benchmarks since last December, implementation of the visa liberalisation agreement has already been delayed by four months. Hopefully, the EU won’t delay much more in rewarding Georgia for its efforts.

* Phillip Takhar is a 2019 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal.

International Legal Interpretation as a Game: A Compelling Analogy?

Filed Under: Book Reviews, Student Features

A review of Interpretation in International Law. Edited by Andrea Bianchi, Daniel Peat and Matthew Windsor. Oxford: Oxford University Press. 2015. Pp. 432. $120.00.

By Odile Ammann

The interpretation of international law poses a myriad of challenges: interpretative authority is dispersed, the sources of international law are non-hierarchical, and its norms are often highly indeterminate—be it because they are designed to apply to many different legal orders, result from compromises, or are unwritten, like customary international legal norms and general principles. Moreover, States are often simultaneously the creators, subjects, primary interpreters, and enforcers of international legal norms, which may cast doubt on their interpretative objectivity.

This book is one of the latest scholarly works tackling the issue of interpretation in international law. Its primary theme is the claim that interpretation in international law is analogous to a game with rules, players, and a goal that can be achieved through different strategies. The contributors illuminate the topic from a range of different theoretical perspectives, such as rhetoric (Iain Scobbie), literary theory (Michael Waibel, René Provost), comparative law (Anne-Marie Carstens), textualism (Fuad Zarbiyev), Nietzschean philosophy (Jens Olesen), the theory of speech acts (Jens Olesen, Ingo Venzke), legal sociology (Martin Wählisch), and linguistics (Ingo Venzke). Three chapters, written by Daniel Peat and Matthew Windsor, Andrea Bianchi, and Ingo Venzke, closely scrutinize the similarities and differences between international legal interpretation and games.

Daniel Peat and Matthew Windsor start with the observation that the current “state of play” of international legal scholarship and interpretive practice suffers from several shortcomings: it is often confined to treaty law and to the “rules” of the Vienna Convention on the Law of Treaties (“VCLT”); it myopically focuses on the international legal realm instead of looking to other legal and extra-legal interpretative practices; and it fails to address and theorize the broader purpose and “mechanics” of interpretation on the international plane. The editors’ aim is to offer “a set of tools for deeper reflection on interpretation in international law.” In this project, the game serves as a “heuristic framework,” illuminating the fact that international law is a social practice and that the constraints within which its interpretation operates open up a space of interpretative freedom.

Andrea Bianchi unpacks the shared characteristics of games and interpretation in international law. The object of the game is to convince others of the correctness of one’s interpretation. While some of the players, including international courts and especially the ICJ, are “more equal than others,” as Orwell would put it, a wide range of participants are involved in the game of interpretation, including NGOs, professional associations and even the research assistants of academics. The game also involves cards, mostly contained in the VCLT, which are often “twisted and bent.” Bianchi then turns to the players’ strategies, that is, the plans designed to help them achieve their aims. In international law, interpreters often use rhetorical tools to increase the persuasiveness of their reasoning, especially when their solution departs from the general rule or from previous cases. Another facet of the game is the question of why players play “the game of game playing.” It pertains, in other words, to the “meta-discourse” about the game. Bianchi espouses a view close to Duncan Kennedy’s description of adjudication as “a work with purpose“: interpreters, Bianchi argues, approach their task with a specific goal in mind and try to make their interpretations conform with it. “Why is the game worth the candle?” Bianchi finally asks. Like the lottery, playing is the only way of winning. Yet unlike what happens in a game of chance, the interpreter of international legal norms can try to influence the game itself. Playing the game through accepted moves gives the players a sense of belonging and strengthens the game’s “coherence and stability,” undermining criticisms of the game’s legitimacy.

Ingo Venzke takes the metaphor of “the language of international law” seriously and analyzes it jointly with the “game analogy.” Applied to international legal interpretation, the language metaphor has at least three dimensions: the language of interpretation is a way to resist the powerful, a standard against which their actions can be appraised; it facilitates communication, especially in situations of disagreement and conflict; and it offers a tool by which interpreters can influence the interpretative result. Venzke notes that international legal interpretation is a performative, law-creating act, and that the success of an interpretation is determined not by the rules, but by the practice of international law. Thus, Venzke is not ready to concede that international legal interpretation is comparable to a game, at least not a game of chess where the players’ moves leave the rules of the game intact. In legal interpretation, “as in language, we make up the rules ‘as we go along.’”

The game analogy on which the contributors rely raises four questions on which it is worth pondering. First, how to deal with the wide range of different games the comparison may elicit? Second, what are the stakes involved in international legal interpretation, and is interpretation necessarily adversarial? Third, can players shape the “rules” of the game? Lastly, what work is the game analogy really doing when applied to international legal interpretation?

What kind of game?

While the book cover displays a game of chess, the editors refrain from choosing a particular game. Their aim is to explore both the potential and the limits of the game analogy. The multifaceted nature of games opens up many interesting parallels, but also creates difficulties. Is international legal interpretation comparable to some games only? Can games as a category provide more than a very thin conceptual tool? If Venzke is right that the “rules” of the game of interpretation change with time, do some games drop out of the analogy? Another difficulty pertains to the normative value of playing the game. Are some games (or certain aims of the players) bad, and according to which criteria? When does an activity stop being a game? Likewise, are some interpretations legally or morally wrong? And what is a legally or morally compelling (as opposed to a merely rhetorically convincing) interpretation?

What are the stakes?

The language of games can also trivialize international legal interpretation—most games do not affect our legal rights and obligations. An unhappy ending to the game of Russian roulette can trigger (if one dare say so) criminal and civil responsibility; yet one may wonder if such an activity has not ceased to be a game. The editors caution against overestimating the “recreational” aspect of games. Yet few games involve stakes as high as those commonly associated with international legal interpretation. The game analogy could also disparage the importance of the legal constraints interpreters must observe and, thereby, encourage unilateralism and self-serving interpretations violating international law. As Venzke writes, in international law, “we make up the rules ‘as we go along’”. Yet if the referee of a soccer game informs the players that they can use their hands to pass the ball around and eventually score, are they still playing soccer? Moreover, on this alleged flexibility of the rules governing the game, it is worth noting, as Hart does in The Concept of Law, that even a sports game is not equivalent to playing “scorer’s discretion,” where the scorer is not bound by any rules.

Another related issue is that games connote an adversarial activity. Even if they often involve teams and can be cooperative, as the editors explain, there is at least one (real or virtual) opponent against whom the player wins or loses. Thus, whether a common interest truly exists in games is open to doubt. While the question also arises in international law, which is governed by the principle of auto-interpretation by states, at least some international legal instruments deal with global common goods or with the relationship between the state and its citizens and, arguably, do not fit this adversarial logic.

How to shape and identify the rules of the game?

A third set of questions pertains to the rules of the games and to their stability. International legal norms often display a high degree of vagueness and need to be made more precise in order to be applied to particular cases. Yet the contributors do not analyze in great depth the process by which the “rules of the game” are changed. The distinction between rules establishing rights and obligations (Hart’s primary rules) and rules stating how primary rules are to be identified, changed and adjudicated (secondary rules) would deserve further analysis, especially given the unequal contribution the different “players” make to the primary and secondary norms of international law and the difficulty for a player to change secondary norms unilaterally. The domestic courts in one state, for example, must be able to “team up” with other international and domestic institutions if their interpretations are to create or change international law—via customary international law or other means.

One may also wonder whether the term “rule” is appropriate in international law. In international human rights law, it might be more accurate to speak of primary and secondary principles instead of rules, given the margin of appreciation states usually enjoy to implement these norms domestically. Since the contributors deplore the “rule-based” approach in international legal practice, it would be worth inquiring whether games can be governed by principles requiring further interpretation.

Lastly, while treaty interpretation is undoubtedly of high practical importance, few contributors think outside the VCLT box to clarify how unwritten norms of international law—for instance, customary international legal norms and general principles of international law—ought to be ascertained. The appropriate methods of identification of customary international law, in particular, are currently at the heart of scholarly debates due to the current work of the International Law Commission (“ILC”) on the matter. Whether customary norms also exist in the world of games, and how the players can identify them and make them evolve, would be questions worth asking in order to contribute to the ILC’s efforts.

What are the analogy’s normative implications?

A last question raised by the game analogy is what work this analogy does, and especially what its normative implications are. The editors argue that the game metaphor has “more than an ornamental value,” yet what purpose the metaphor is intended to serve remains unclear. “[I]f metaphor is the dreamwork of language, then analogy is the brainstorm of jurists’-diction,” Scott Brewer writes. Analogical reasoning is compelling if the analogy-warranting rule and the analogy-warranting rationale, as Brewer calls them, are convincing. While the former clarifies the logical relationship between the characteristics shared by the two items that are being compared and an additional characteristic both items are inferred to possess, the latter justifies why this logical relationship should have legal consequences. It would be useful for the reader to know what to infer from the shared characteristics between games and international legal interpretation, and to learn more about the legal consequences—if any—of the game analogy and its normative justification.

Lastly, given the gap that still exists in legal theory and legal philosophy with regard to the interpretation of international legal norms, the game analogy would perhaps benefit from an explanation as to why the interpretation of international law specifically is relevantly similar to a game. This would contribute to filling a jurisprudential vacuum, as many legal scholars and philosophers have referred to games in their work without mentioning international law.

Interpretation in International Law is an original and thought-provoking edited volume dealing with a challenging issue of international legal theory, an issue that has a bearing on the way international legal interpretation is understood and ultimately conducted. Although the volume leaves open several questions as well as its specific implications for legal practice, the contributors further stimulate the international legal debate through the game analogy – and this move is, without doubt, very well worth the candle.

The AMEDD Five Years On: Trends in Enforcement Actions and Challenges Facing the Enforcement Landscape

Filed Under: Online Scholarship

It has been five years since the multilateral development banks (MDBs) adopted a new initiative, the Agreement for Mutual Enforcement of Debarment Decisions (AMEDD). The AMEDD enables the MDBs to recognize and enforce the sanctions decisions of other institutions participating in the AMEDD, thereby multiplying the effect of one institution’s sanctions on a debarred party. The AMEDD has been subject to legal tests that have called into question the sanctions processes of the MDBs. This article assesses challenges faced by the MDBs when implementing the AMEDD, the range of sanctions actions taken, enforcement trends, and the impact of sanctions—particularly cross-debarment—on corporate entities and individuals. In the past five years, the MDBs have faced significant challenges to their sanctions regimes while attempting to combat fraud and corruption and to increase good governance practices and investments in their MDB programs and economies. Given the lofty goals of the AMEDD, it is timely to consider whether it has met these goals and what its achievements have been.

Read full article (PDF).

Can a Corporation Be a Criminal Enterprise?

Filed Under: Content, Op-Ed, Student Features

By Marissa Florio

Under international and U.S. law, individuals can be prosecuted for membership in criminal enterprises. But what do we mean by “criminal enterprise”? The FBI defines a criminal enterprise as “a group of individuals with an identified hierarchy, or comparable structure, engaged in significant criminal activity.” Typically, we think of drug cartels, racketeering enterprises, or even the Gestapo. But what about corporations? They have shown themselves to be capable of egregious and criminal behavior: insidiously evading regulations or instigating and carrying out violent acts. Corporations should likewise be eligible to be labelled as criminal enterprises, as they are groups of individuals with an identified hierarchy that can engage in significant criminal activity. Corporate directors and officials could thus then be found guilty for the corporation’s bad acts much more easily, which I find appropriate.

Both international law and U.S. domestic law provide for criminal liability for membership in a criminal enterprise. Simply being a member in such a group is enough to warrant prosecution, without further evidence that a specific individual committed any other crime. Domestically, membership in an enterprise that participates in racketeering activity is penalized under the Racketeer Influenced and Corrupt Organizations Act (RICO). Internationally, at the Nuremburg trials, the Gestapo was declared a criminal enterprise and all members were automatically penalized. Similarly, in the ICTR, a defendant can be found guilty for the acts of others under the theory of extended joint liability for a joint criminal enterprise. What would it take for a corporation to be deemed a “criminal enterprise”?

Domestic Law

In Doe I v. Unocal Corp., the Ninth Circuit assessed whether there was a genuine issue of material fact as to whether Unocal, as a corporation, aided and abetted the Myanmar military’s perpetration of forced labor, murder, and rape. The Myanmar military was providing security and other services for Unocal’s project of producing, transporting, and selling natural gas deposits off the nation’s coast. Allegedly, the military was committing human rights violations in connection with the project, forcing men to work on the project under threat of violence, killing those who tried to escape from the forced labor program, and torturing their families:

“For instance, Jane Doe I testified that after her husband, John Doe I, attempted to escape the forced labor program, he was shot at by soldiers, and in retaliation for his attempted escape, that she and her baby were thrown into a fire, resulting in injuries to her and the death of the child. Other witnesses described the summary execution of villagers who refused to participate in the forced labor program, or who grew too weak to work effectively. Several Plaintiffs testified that rapes occurred as part of the forced labor program. For instance, both Jane Does II and III testified that while conscripted to work on pipeline-related construction projects, they were raped at knife-point by Myanmar soldiers who were members of a battalion that was supervising the work.”

The Circuit court assessed Unocal’s knowledge that the Myanmar military was allegedly committing human rights violations in connection with this project. The court found there to be sufficient evidence of knowledge to withstand summary judgment. The court stated,

[E]ven before Unocal invested in the Project, Unocal was made aware – by its own consultants and by its partners in the Project – of this record that the Myanmar Military might also employ forced labor and commit other human rights violations in connection with the Project. And after Unocal invested in the Project, Unocal was made aware – by its own consultants and employees, its partners in the Project, and human rights organizations – of allegations that the Myanmar Military was actually committing such violations in connection with the project.

The parties in Unocal settled shortly after this ruling on summary judgment. However, had the case gone to trial, could plaintiffs have presented an argument that Unocal was a criminal enterprise?

In domestic cases, the answer is no. The Ninth Circuit held that RICO could not be argued, as the statute did not apply extraterritorially. (For more on the presumption against extraterritoriality in U.S. domestic law, see also EEOC v. Arabian American Oil Co.)

International Law

Could international law be applied in these types of cases to hold a corporation as a whole liable as a criminal enterprise, and therefore extending criminal liability to its officers without proving personal involvement in specific acts? Several international tribunals do just that.

The Nuremburg Charter provides: “At the trial of any individual member of any group or organisation the Tribunal may declare . . . that the group or organisation of which the individual was a member was a criminal organisation.” This declaration is final and cannot be challenged in subsequent cases against other members of the same organization: “In cases where a group or organisation is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organisation is considered proved and shall not be questioned.”

The Nuremburg Tribunal is not the only international tribunal that can find a group to be a criminal enterprise in this fashion. A recent International Criminal Tribunal for Rwanda (ICTR) ruling could lay the groundwork for the International Criminal Court (ICC) to similarly use the theory of a criminal enterprise to find greater liability for a corporation’s wrongdoing. (The ICTR rulings can have some precedential value for the ICC under the Rome Statute.)

In Edouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, the ICTR found two politicians culpable under a seldom-used theory of liability, whereby the defendants were found guilty for the acts of others, because they participated in a scheme that had a plausible consequence of certain human rights violations. The ICTR found two high-ranking politicians from Rwanda’s 1994 interim government liable for human rights atrocities during the Rwandan genocide, specifically the mass rape, mutilation, and sexual assault of thousands of Tutsi women and girls. There was no evidence that either defendant personally perpetrated rape, mutilation, or sexual assault, or even that either politician ordered such acts to be committed. They were convicted on the grounds of extended liability for joint criminal enterprise. Id.

Under extended liability for joint criminal enterprise, a defendant must be found liable for participating in a “basic” joint criminal enterprise (here, the destruction of the Tutsi people) and significantly contributing therein. The defendant can then be found liable for a crime outside of the purpose of the basic joint criminal enterprise that was committed by another joint criminal enterprise member, so long as it was “foreseeable that the extended crime was a possible consequence of the implementation of the basic [joint criminal enterprise].” A defendant could similarly be found liable for the acts of a non-member of the original joint criminal enterprise if: (1) the non-member has the requisite intent to participate in and significantly contribute to the joint criminal enterprise, (2) it was foreseeable that the non-member would commit the extended crime in the execution of the common purpose of the joint criminal enterprise, and (3) the defendant knew the extended crime was a possible consequence of the implementation of the common purpose of the joint criminal enterprise and he willingly took the risk it would be committed.

Were this same theory to be applied to a corporation, a corporate official could be found liable for participating in such a joint criminal enterprise, such enterprise being the corporation. Therefore, even if a corporation were being prosecuted as a person/entity independent of its officers, as in Unocal, the corporate structure could still be used as a framework around which to build cases against individual officers, specifically in establishing duties to know and act, and knowledge of improper actions.

Moving Forward

International law thus appears to be better suited than U.S. domestic law to finding that a corporation is a criminal enterprise, since Ninth Circuit precedent now blocks RICO from applying in all cases where the bad acts occurred outside of the United States. If a case with facts similar to Unocal did emerge and the corporation therein was declared to be a criminal enterprise under an international tribunal, would this be a move in the right direction? Should the U.S. defer to the jurisdiction of international tribunals in cases like Unocal, making it possible to penalize corporate officers? Could the U.S. defer jurisdiction? How far could this theory go: could all employees of a corporation become criminally liable, regardless of their involvement or personal knowledge of the extent to which the corporation was involved in illegal activities? Is this just?

Marissa Florio is a 2016 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal Online.