The Lima Climate Talks: On Track for a Global Deal in Paris?

In the early hours of 14 December 2015, after negotiations ran more than thirty hours overtime, the Twentieth Conference of the Parties (COP20) of the United Nations Framework Convention on Climate Change (UNFCCC) finally concluded with an agreement, the “Lima Call for Climate Action” (Lima Decision). Reaching an agreement was no mean feat. Progress had been so slow that eleven days into the meeting, delegates had only agreed on one paragraph of the final negotiating text for COP21 in Paris. This paragraph essentially states that countries should “intensify their high-level engagement” to accelerate action on climate change.

In typically carefully crafted and uninspired language, the Lima Decision is less of a call for action than a road map for what is likely to be a long journey towards COP21 in Paris, France. Under the auspices of the Durban Platform for Enhanced Action, an international agreement, whether by extending the existing Kyoto Protocol or adopting “another legal instrument or agreed outcome with legal force under the [UNFCCC]”, is to be adopted at COP21 for it to come into effect and be implemented from 2020 onwards.

This blog post looks at the key outcomes of COP20 and reflects on the meaning of the Lima Decision and its implications.

“Intended nationally determined contributions”

Since the 1995 Berlin Mandate and the 1997 Kyoto Protocol, the international climate change legal regime has placed legally binding obligations to cut greenhouse gas (GHG) emissions on the so-called Annex I countries only. These are primarily developed countries and the differentiation in treatment is justified by the principle of common but differentiated responsibility. That developing countries like China were not required to cut their GHG emissions was a key reason for US refusal to ratify the Kyoto Protocol. The 2011 Durban Platform for Enhanced Action sought to create a break with this past. It focuses on a pledge to include all parties within a common legal framework. In Lima, a significant step was taken towards fulfilling this commitment when parties agreed to a new structure in which all countries will declare (over the next six months) their GHG reduction targets, otherwise referred to as “each Party’s intended nationally determined contribution” (Para. 9, Lima Decision). The UNFCCC Secretariat will publish Parties’ “intended nationally determined contributions” on their website and, by 1 November 2015, prepare a synthesis report on the aggregate effect of these pledges (Para. 16, Lima Decision).

“If you can’t measure it, you can’t manage it”

That all member states are required to participate in the collective effort to mitigate climate change is a promising development. However, there are two shortcomings to be noted. First, the Lima Decision is silent on whether the UNFCCC Secretariat’s synthesis report will have weight at COP21. What if the synthesis report confirms what we already know – that there is a significant gap between the pledges made by member states under the Copenhagen Accord and what is needed to hold the increase in global average temperature below 2 degree Celsius above pre-industrial levels?

Secondly, and more importantly, paragraph 14 of the Lima Decision states that the information provided by the parties “may include, as appropriate, inter alia, quantifiable information on the reference point (including, as appropriate, a base year), time frames…scope and coverage” (emphasis added). The absence of the imperative “shall” is likely to result in disparity in the scope and depth of information provided by member states. This will hinder comparative evaluation of countries’ pledges to cut their GHG emissions. The aim of such comparative evaluation is not to name and shame, but to ensure that parties with more capabilities are doing more, in adherence to the notion that developed country parties take the lead “in accordance with their common but differentiated responsibilities and respective capabilities” (para. 3, Lima Decision). However, in Lima, some countries including the big oil producers and China, pushed for looser reporting guidelines and resisted efforts to have all countries’ pledges assessed and scrutinized before COP21 in Paris to ensure that countries were making fair and equitable contributions. This dispute threatened to derail COP20. Eventually, negotiators settled on the flexible reporting approach.

The lack of a formal review mechanism is a disappointment, especially as other actors such as sub-national governments and cities are already putting the Measuring, Reporting and Verification (MRV) principle (introduced in the Bali Action Plan) into practice. As current UN Special Envoy on Cities and Climate Change, Michael Bloomberg, puts it, ‘if you can’t measure it, you can’t manage it”. It can be argued that this hybrid model, combining “bottom up” “intended nationally determined contributions” and “top down” reporting requirements and synthesis reports by the UNFCCC secretariat, may well represent the most feasible approach for addressing climate change at the inter-state level and for reaching a meaningful agreement in Paris this year. However, this transition towards what amounts to a voluntary national pledge and review system, albeit with some accountability mechanisms in place, raises important questions on whether such a regime will be able to limit global warming.

Where’s the money going to come from?

After initial trepidation that the Green Climate Fund, set up to finance projects and programs in developing country parties, would not meet its USD10 billion initial capitalization goal, the Fund announced in Lima that this goal had been reached after receiving pledges from Australia and Belgium. This is, however, only the beginning as the Fund is intended to mobilize USD100 billion by 2020. It is not clear how this “mobilization” from both “public and private, including alternative sources” will occur. At COP20, no major decisions had to be taken on climate finance, but this simply rolls a difficult issue over to COP21 in Paris.

The Loss and Damage Mechanism

At COP19 in Warsaw, the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts was established as the main UNFCCC vehicle to implement approaches to address the loss and damage associated with climate change impacts in particularly vulnerable developing countries. Decision 2/CP. 19 recognizes that such a mechanism is necessary because mitigation and adaptation will not be able to entirely reduce the loss and damage caused by climate change, especially extreme events and slow onset impacts. Doelle argues that the Warsaw Mechanism unlocks discussions on loss and damage, but discussions are still far from seriously examining the issue of liability for the costs of adaptation and associated loss and damage. He further argues that the Warsaw mechanism has the potential to lift a major taboo – the reluctance by developed states to discuss liability. This emphasis on legal liability in the context of the Warsaw mechanism is arguably misplaced. It runs the risk of reducing the discussion on loss and damage to one of merely determining liability and financial compensation and sidelining some of the most salient issues that vulnerable developing countries are trying to bring to international attention such as climate-induced migration and internal displacement, loss of ecosystems and potential loss of statehood. It is therefore worth noting that the work of the Warsaw Mechanism will go beyond financial compensation and will include, inter alia, building expertise in approaches to address loss and damage, collecting and sharing information including gender-disaggregated data (thereby recognizing that women are more exposed to the adverse impacts of the changing climate than men) (para. 5, Decision 2/CP.19).  In Lima, the COP20 adopted the initial two-year work plan of the Warsaw Mechanism’s Executive Committee and finalized the composition of the committee.

A Challenging Year Ahead  

The US-China emissions pact and the Climate Summit in New York City provided critical momentum and boosted political will in the run-up to Lima. The US-China pact removes one of the long-standing obstacles to the conclusion of a global climate agreement. Countries can also no longer hide behind the Sino-US stalemate as an excuse for their own inaction. Public opinion was buoyant in the days leading to Lima. Sir David King, the UK foreign secretary’s special representative for climate change, said that the Sino-US climate agreement “means we are very likely to get an agreement in Paris in December 2015”.

However, it has become clear that the road to Paris will be far from an easy ride, with many major contentions associated with the divide between rich and poor countries (e.g. funding of the financial mechanisms). The Lima Decision itself is a succinct 4 pages, but the annex “Elements of a Draft Negotiating Text” contains nearly 40 pages and there is a menu of options for almost every clause! With the conclusion of COP20 in Lima, the hard work is just beginning.

Jolene Lin

 

Case C‑242/13, Commerz Nederland NV v Havenbedrijf Rotterdam NV

Port of Rotterdam

On September 17, 2014 the Court of Justice of the European Union gave a ruling in case C-242/13 involving the municipality of Rotterdam and the Havenbedrijf Rotterdam NV (HR) – port authority wholly owned by the municipality.

The origins of this dispute can be traced back to November 2003 when Commerz Nederland NV (Commerzbank) provided EUR 25 million credit to RDM Vehicles BV (RDM) – a company operating in the port of Rotterdam. The credit was intended to finance the manufacture of an armoured vehicle.  At the same time the director of HR agreed to act as guarantor for the credit. A few days after providing the credit Commerzbank received ‘legal opinions’ from a law firm, according to which the guarantees provided by HR, in respect of the credit provided to RDM, constituted ‘valid, binding and enforceable obligations’ as regards the guarantor. However, as it follows from the facts of the case, when providing the guarantees, the director of Havenbedrijf was acting arbitrarily, he kept the fact of the provision of the guarantees secret and he failed to seek the approval for the guarantees from the supervisory board of HR, i.e. the municipality of Rotterdam. Moreover, as it follows from the facts of the case, the municipality would have opposed the provision of those guarantees, had it be informed of them.

In April 2004 the Commerzbank cancelled the credit and demanded repayment of it, but that was refused by RDM Vehicles and, subsequently, by the HR. In response to that the Commerzbank decided to bring a legal action against the HR. By judgment of January 2007 the court in Rotterdam dismissed the action on the grounds that the guarantees were void pursuant to Article 3:40(2) of the Netherlands Civil Code as they constituted state aid within the meaning of European Union law, and more precisely, within the meaning of Art. 107 (1) of the Treaty on the Functioning of the European Union (TFEU). In the opinion of the court, the provision of the guarantees ought to have been notified to the European Commission in accordance with Article 108(3) TFEU. The Commerzbank unsuccessfully appealed to the regional court, and, subsequently decided to apply for cassation at the Dutch Supreme Court (Hoge Raad). The Supreme Court stayed the proceedings and asked the Court of Justice to clarify the European Union rules concerning state aid. More specifically, it asked whether guarantees as in the case at hand, even if given in secret and without the approval of the municipality, can be attributed to the public authorities and, thus, can be classified as state aid in the meaning of Art. 107 TFEU.

The Court of Justice held that in this case it is necessary to examine whether the public authorities were one way or another involved in the provision of the guarantees. Furthermore, the Court observed that the existence of organisational links between HR and the municipality tends to demonstrate that the municipality was involved or that it is unlikely that it was not involved in the provision of the guarantees, and that the fact that the director acted improperly does not exclude the involvement of the municipality. The Court observed that the effectiveness of the EU rules regarding state aid would be seriously weakened if their application could be excluded, merely because a director of a public undertaking disregarded that undertaking’s statutes. Finally, the Court ruled that it is for the national court, in this case the Dutch Supreme Court, to decide whether the involvement of the municipality of Rotterdam in the provision of those guarantees can indeed be excluded.

This case not only illustrates the intricacies of EU rules regarding state aid, but it also shows how EU law can affect seemingly simple contracts between private parties. The lawyers working for the Commerzbank should have been aware of the fact that the guarantees provided by HR might be in breach of EU state aid rules.

Urszula Jaremba

Natural gas transportation from production facilities in the Artic to Europe – Gas pipeline near Gazprom’s giant Bovanenkovo field in the Yamalo-Nenets  Autonomous Okrug, West Siberia.

Natural gas transportation from production facilities in the Artic to Europe – Gas pipeline near Gazprom’s giant Bovanenkovo field in the Yamalo-Nenets Autonomous Okrug, West Siberia.

Context
For about a decade, the European Union and the Russian Federation have been treating each other quite standoffishly. The current situation casts serious doubt on the foundations of post-Cold War cooperation. Events in Ukraine point to a reassessment of the security governance on the European continent, while a long-running conflict about aspects of EU market regulation is straining relations in the field of energy. These conflicts are pressing, as they impact peace and prosperity in Europe. Public international law and EU law pertain to both conflicts. This blog post illustrates why the regulation of natural gas trade is one of the most difficult conundrums in the relationship between Russia and the EU and indicates some recent changes in the gas relations that are key to re balancing its governance.

The aim of this blog post is twofold. First, it explains why mechanisms that WTO law and EU competition law provide are inadequate to guide the most important component of the Union’s economic relations with Russia. Second, it shows that it will be inevitable to boldly revise the tools that govern EU-Russia gas relations in order to establish a dependable long-term framework. Clearly, only a mutually agreed approach can pave the way for a resolution to the current impasse. The design of a future legal framework must have regard to the politico-economic legacy of the gas relations, diverging regulatory dynamics, and the interdependence between both gas sectors. Most importantly, this framework must help cultivate a process that encourages exchange at the highest political level about all issues related to the cooperation between Russia and the EU in the field of natural gas.

Legal battlegrounds

In late April 2014, the Russian Federation formally notified the WTO Secretariat about its request for consultations with the European Union with respect to the Union’s 2009 Third Energy Package. (At the moment of writing, neither side had taken any further steps.) The Third Energy Package is the latest effort to reorganise the EU natural gas and electricity sectors. In the 1990s, earlier legislation (Directives 96/92/EC and 98/30/EC) initiated the liberalisation of these sectors in the member states. In 2003, a second package (Directives 2003/54/EC and 2003/55/EC) followed that pushed for EU-wide competition and fully open electricity and gas markets. The gradual unbundling of utilities and gas companies aimed to restructure these sectors and enable the undertakings to operate in a competitive and increasingly integrated EU energy market.

The Third Energy Package contains two directives and three regulations. Directives 2009/72/EC and 2009/73/EC state the rules for the internal markets in electricity and natural gas. The regulations form the legal basis for utilities and gas companies to transmit electricity and natural gas across borders to customers in other EU member states. The establishment of the Agency for the Cooperation of Energy Regulators ensures the impartial implementation of these rules in all member states. The objective of this legislation with respect to the gas sector is to create an internal market in natural gas that is able to provide qualitatively high and affordable services, while also accounting for the security of gas supply and environmental concerns.

For Russia filing a dispute against the EU over this legislation seems to be a logic consequence of its long-held stance on the reorganisation of the EU energy sector. The WTO complaint focuses on EU decisions and member states’ legislation that affect the dealings of Gazprom – Russia’s monopolistic natural gas producer and exporter. The complaint relates to provisions that bar vertically integrated companies from accessing transport infrastructure. EU law prohibits energy companies that control transportation networks from owning production or retail enterprises in a certain energy chain. Further, the complaint touches upon problems that the Third Energy Package creates for already concluded long-term gas supply contracts between European companies and Gazprom. Generally, the document summarises and concretises the concerns that Russian officials and energy experts had already voiced before the Third Energy Package came into force. The debate about the Package has been straining Russia-EU gas cooperation for about half a decade. The obligation to separate ownership of transmission networks from the production and sale of gas as well as the interference with its long-term supply contracts complicate Gazprom’s business strategy in the EU.

Gazprom dominates the Russian gas sector and EU-Russia gas relations, as it produces 80% of Russia’s natural gas and monopolises gas exports by pipeline. The company’s business model and EU energy legislation are increasingly becoming incompatible. Moreover, Gazprom’s activities in the EU give rise to energy security concerns in several member states. Russia recently expanded its investments in the gas sectors of these states, while their dependence on Russian gas supplies is rising. In the last decade, Gazprom considerably strengthened its position in the European downstream market, by acquiring gas storage facilities and service units. The consequences of Gazprom’s growing involvement in more lucrative downstream activities in the EU gas sector constitute a previously overlooked aspect of the bilateral energy relations. This development forms a significant change in the scale of Russia’s presence in the EU gas sector as compared to previous decades (Milov, 2008).

For years, there has been growing unease about energy security issues related to Gazprom’s role in the EU gas sector, in particular with respect to the overdependence of central and eastern Europe on this gas supplier. In 2012, the European Commission formally started to investigate whether Gazprom is hindering competition in EU gas markets. This probe scrutinised Gazprom’s business practices in central and eastern European member states, such as restricting the re-sale of gas among member states, blocking competing suppliers, and price setting based on oil prices. The Commission wanted to clarify whether Gazprom’s dominant position in these markets was in breach of Article 102 Treaty of the Functioning of the EU.

The Commission’s investigation into Gazprom’s practices threatened the company’s revenues and market share in central and eastern Europe. Russian President Vladimir Putin swiftly responded to this antitrust probe with the presidential decree Ukase no. 1285, which explicates the responsibilities of Russia’s “strategic companies” such as Gazprom. Now, these companies, including their foreign subsidiaries, need prior approval of the Russian government in the event that they want to provide information about themselves, amend their contracts, and sell stakes in subsidiaries located abroad. With this decree, the Russian president directly interfered with the ongoing investigation and Gazprom’s room for manoeuvre. He pre-empted any possible solution to the alleged violation of EU competition law, such as the adoption of a commitment decision pursuant Article 9 of the Antitrust Regulation 1/2003. In a commitment decision, Gazprom could have made some concessions in order to meet the concerns of the Commission. After the issuance of the presidential decree, any move by Gazprom in this investigation would have needed the approval of the Russian government. The Commission suspended the investigation in September 2014. Yet, the new competition commissioner can still decide on further proceedings.

EU energy market regulation and Gazprom’s business model, especially its proximity to the Russian state, have become irreconcilable. Thus far, exchange among technocrats in forums and frameworks for cooperation on energy, such as the EU-Russia Gas Advisory Council, the EU-Russia Energy Dialogue, and the Partnership and Cooperation Agreement, failed to resolve frictions and prevent legal disputes. The conflicts that underlie the Commission’s antitrust investigation and Russia’s WTO complaint can only be addressed by a mutually agreement. Without an overarching general framework, which lays down basic principles to govern EU-Russia gas relations, both parties will continue to file legal actions.

High stakes
Russia and the EU gain from trustful and reliable gas relations. Natural gas is used to provide heating and electricity. The supply of this commodity is the most complex and delicate part of EU-Russia energy relations, mainly because of the infrastructure that binds both sides. The installation of this vast gas supply infrastructure between West Siberia and Europe was a generation-long effort. Several pipelines stretch thousands of kilometres from the tundra through the European part of Russia, the Baltic Sea, Belarus, and Ukraine before they enter the EU. An overarching governance structure is needed to manage a wide range of technical, legal, financial, political, and transit matters as well as the underlying gas supply relations. Failing to properly address these issues can cause huge economic losses.

Neither side has an interest to jeopardise the gas relations. In 2013, Russian natural gas sent westwards amounted to US$73 billion, which was 14% of Russia’s entire export revenues. The 28 member states of the EU consume roughly 500 billion cubic metres natural gas annually. For about 66% of its entire annual gas consumption, the EU relies on imports (see for all EU-related percentages in this paragraph, European Commission, “EU energy in figures,” 2014, pp. 24, 22). As main suppliers, Russia and Norway contribute to the Union’s gas imports more than 30% each (p. 26). Despite recent efforts to decarbonise its energy production, three-fourths of the Union’s energy is still produced from fossil fuels (p. 40). From 1995 to 2012, the Union’s import dependency with respect to fossil fuels has increased from 43% to 53% (p. 24); and Russia became its most important supplier of all fossil fuels. Of the crude oil, coal, and natural gas that the EU imports, Russia supplies 34%, 26%, and 32%, respectively (p. 26). Energy imports from Russia are indispensable to the EU. Yet, more than two-thirds of Russia’s export revenues derive from oil and gas sales, mainly to customers in Europe. Hence, cooperative and constructive gas relations between Russia and the EU are a vital prerequisite for economic stability on the Eurasian continent.

Diverging dynamics
Unfortunately, the economic importance of EU-Russia gas relations is not reflected in the current governance structures. In fact, accounts of abandoned frameworks and emerging hedging strategies dominate the recent history. With the 1994 Energy Charter Treaty (ECT), attempts were made to institutionalise EU-Russia energy relations. This legal framework derived from the idea of complementary energy sectors. Energy cooperation, based on market relations, was seen as a means to overcome the economic division of the continent. The ECT primarily regulates investment, trade, and the transit of energy resources. This multilateral framework constitutes the main international legal document in the field of energy. It went into force in 1998. Due to their shared competences in rulemaking on energy, both the EU and all its member states are parties to the ECT. Russia signed the ECT and applied it provisionally for 15 years, but never ratified it for political reasons. After failing to gain support for a proposal for a new, albeit ECT-inspired, multilateral treaty, Russia terminated the provisional application of the ECT in 2009. Obviously, the ECT could not lay a lasting foundation for the gas cooperation between Russia and the EU.

Diverging regulatory dynamics in Russia and the EU have rendered the ECT outdated, at least with respect to the governance of the gas cooperation. After a decade of chaotic privatisation, the Russian state retook control of Gazprom in the early 2000s and subsequently regained its grip on the domestic gas sector. At the same time, the EU acquis communautaire in the field of energy with its focus on liberalisation and competition gradually emerged. Today, the EU energy aquis goes far beyond the ECT’s scope of market-based energy relations.

Russia’s and the EU’s foreign energy strategies mirror their different domestic approaches. The draft of Russia’s Energy Strategy until 2035 of January 2014 states that in the process of international rulemaking on energy it is vital to ensure the protection of energy exporting states, which includes guaranties for investments in production and transport infrastructure and for secure access to transport facilities. The “defence of Russia’s interests in the emerging system of the regulation of global energy markets” is thus seen as a “strategic task” (p. 23). The EU’s 2014 Energy Security Strategy concentrates on the Union’s import dependency. Security of supply should be realised through more coordination of national energy policies, a greater role of the European Commission in energy issues, and assistance among member states in case of supply disruptions. The Strategy thus seeks to clarify the competence of the Commission in the field of energy and the notion of energy solidarity, as stated in Articles 4 (2) and 194 (1) of the Treaty on the Functioning of the EU, respectively. The internal market for gas and electricity is the basis for these energy security measures.

The EU also applies the principle of solidarity to neighbouring states that are state parties to the 2006 Energy Community Treaty such as Ukraine. The Energy Community Treaty – a project of the EU and several neighbouring states – extents the application of the EU energy acquis to non-EU states in order to upgrade and reform the energy sectors in these states. Stability in Ukraine is of paramount importance, as almost 50% of Russia’s natural gas exports to the EU pass pipelines that traverse Ukrainian territory (IEA, March 2014). With the Energy Community Treaty, the EU effectively exported its energy policies – liberalisation and market integration – beyond its borders. Thus, the EU exceeded the initial approach of the Energy Charter Treaty with respect to its internal energy legislation and moved the application of the EU energy acquis eastwards to the borders of the Russian Federation as a result of the 2004 EU enlargement and the conclusion of the Energy Community Treaty. Today, EU energy sector regulation, due to the “exportation” of the energy acquis, extends to the Ukrainian-Russian border where important gas transportation infrastructure is located. This development seriously affects Gazprom’s dealings in the region. Despite the economic complementarity of their gas sectors, regulatory incompatibility impedes EU-Russia gas cooperation. A new legal basis for the gas relations is needed in order to avoid frictions and legal disputes in the future and to steady overall EU-Russia relations.

Revision
The construction of the large gas supply infrastructure from West Siberia to Europe, which commenced in the 1970s, was a crucial pillar of the subsequent political rapprochement between east and west (Höseglius, 2013). After the collapse of the Soviet Union a transitory phase began that lasted until the early 2000s. In this period, hopes were high that market reforms could provide a basis for cooperation. Russia’s energy sector went through an ad-hoc privatisation. At that time, efforts were made to institutionalise EU-Russia energy relations. Russia faced a severe economic crisis at the turn of the century. Then, the government reversed its course and re-established state control of the gas sector – the backbone of Russia’s economy. The governance of EU-Russia gas relations must mediate between the Union’s market-based regulatory approach and the structure of Russia’s state-controlled gas sector.

A new legal framework that steers EU-Russia gas relations must embed all abovementioned aspects, including the parties’ obligations under EU competition law and WTO law. Above all, it must facilitate consultations to manage the diverging dynamics in the development of the gas sectors. Moreover, the historically strong political component of the gas cooperation with Russia requires a meaningful transposition into a contemporary governance structure. Similarly, an overarching framework must attend to the reality of EU integration. Decades ago, the initiation of the natural gas trade was instrumental in reconciling former enemies. Likewise, reframing the gas relations ought to be central to ending the current standoff between Russia and the EU.

Susann Handke

References
Höseglius, Per. Red Gas: Russia and the Origins of European Energy Dependence. New York, NY: Palgrave Macmillan, 2013.
Milov, Vladimir. “Russia and the West: The Energy Factor.” CSIS/IFRI, July 2008.

Blatter

Allegations that bribery sealed Qatar’s selection as the host of the 2022 FIFA World Cup appear to have been substantiated in the past week. Even if the ensuing investigation by Michael Garcia reveals that no FIFA rules were explicitly broken, the process to select the 2022 FIFA World Cup host has lost the little legitimacy it had. The illegitimacy of the process may end up harming governments (which regulate sport and bid on, host, and pay for these events), sponsors (who also pay for these events), and other parties. As a result, a new host selection process for 2022 must be undertaken, but it must be done with public participation, to restore the legitimacy of the process.

The 2022 World Cup host selection was irregular. FIFA made the decision to select the 2018 and 2022 hosts at the same time. Although the premise was that both editions would be open to all interested bidders, FIFA President Sepp Blatter publicly insisted that the 2018 host should be European, greatly influencing the process. In addition, two FIFA Executive Committee officials, who would have voted for the World Cup host, were expelled from FIFA for attempting to take bribes in exchange for their votes. Although corruption will surely be discussed at length by others, one question remains unanswered: what should happen to the 2022 World Cup?

It has become clear that FIFA needs to select a new host for the 2022 FIFA World Cup. Not only has the initial host selection process been de-legitimated, the documented abuse of migrant workers and the Qatar organizing committee’s insistence that it cannot deliver the promised number of stadiums, show that simply going ahead with Qatar as the 2022 host is not a tenable option. Given a chance to host an event that does not require the infrastructure that a FIFA World Cup does, Qatar could likely put on a wonderful show. But, it has struggled to meet the significant challenges of hosting a FIFA World Cup, and as preparations for Brazil 2014 has shown, is not alone in this regard. FIFA must cut its losses, accept the loss of face, and select a new 2022 host.

Some advocate that FIFA should simply select a “safe” country that is already prepared to host the event and plonk the World Cup there. Options include Germany, host of the 2006 World Cup; England, which bid to host the 2018 World Cup; and the United States, which bid to host the 2022 World Cup. Of course, how FIFA would choose the host is not really discussed, and simply revisits the problem of FIFA being unaccountable to anyone for selecting where it plays its tournaments.

The better plan would be to re-run the vote for the 2022 World Cup, under the new FIFA rules that require the entire FIFA Congress, not just the 25-member Executive Committee to vote for the host. If a vote was held in 2015 or 2016, the winning nation would still have 6-7 years to prepare, which is just short of the standard time. In any event, after the problems of Brazil, Qatar, and the Sochi Olympics, the vote would likely be for a country that is already largely prepared.

While this would solve the immediate problem of the 2022 World Cup host, it does not address a larger problem, a lack of public participation. Recent history has shown that when given the option, citizens are increasingly likely to vote against hosting an event such as the World Cup or the Olympic Games. Referenda in the past year in Switzerland, Germany, and Poland, have seen citizens vote against hosting the 2022 Winter Olympic Games. Closer to home, the Atlanta Braves president admitted that the new stadium in Cobb County would not have gotten approved if the public knew of it in advance. Protests in Brazil have shown that public support, even if it existed in the first place, can rapidly erode. Yet, if there is a re-run of the 2022 host selection process, the decision to bid, and the structure of the bid would likely be undertaken by those in the national football associations, without public consultation, in order to avoid any embarrassing defeats. But, given the large sums of (often public) money that are spent on hosting the World Cup, allowing the football associations to do this without public input is not much better than the process that got us into this mess in the first place.

But so what? Why would FIFA care? Once kick-off takes place in São Paulo on June 12, billions of football fans will concern themselves more with who won, who lost, and which calls the referees missed. The same thing happened with the Sochi Olympics earlier this year: once the torch was lit, the criticism faded away. But, there is a golden chance right now for national football associations, and for governments who care about transparency and public participation, to pressure FIFA to do better. The half-hearted reforms it undertook in 2013, as documented by an organization that promotes good governance in sport, PlayTheGame, were not enough. This recent scandal has the opportunity to be the modern-day version of the International Olympic Committee’s Salt Lake City scandal of 1999, a chance for FIFA to look itself in the mirror, and make a change. But the pressure won’t come from fans, or from within. Governments, sponsors, and other interested actors will have to get serious about monitoring and keeping a watchful eye on the regulator of not just a game, but a multi-billion dollar industry, and one that is need of a serious clean-up. It’s time for FIFA, and those associated with FIFA, to care only about grassroots football, but also about grassroots public participation in World Cup host selection. By giving a voice to those at the bottom, maybe FIFA can prevent future problems at the top. 

On a lighter note, John Oliver gives a more irreverent take on the situation.

Ryan Gauthier, 04 June 2014

Greenpeace activists line up outside the Hungarian Foreign Ministry in BudapestThe legal amendments driven by the Hungarian Fidesz Government have shown the limits of the EU abilities in protection of rule of law. In a nutshell it has been criticised by the EP that these amendments weaken the protection of rule of law, and interfere with freedom of the press, independence of the judiciary, democratic governance through electoral reform, rights of minorities and freedom of religion.

Embracing for the infringement proceedings, the Hungarian government is reportedly adopting a law whereby if Hungary is deemed liable to pay penalty payments for the breaches of EU law, this would be levied as a special tax directly from the citizens.

While this seems shocking, yet, as always, it needs to be asked, what is the legal situation? The EU is bound by the principle of transferral of competence, and there is very little that it can do in cases of breaches of rule of law – or how a Member State organises the payment of EU fines. The protection of common values, fundamental rights, rule of law and democracy, while they are the “foundational values” that the Union and its Member States have promised to respect under Articles 2 and 6 TEU, are not Union policies themselves.

The only avenue available to punish a Member State for a breach of these foundational values is to use Article 7 TEU. And, in order to even initiate this procedure, four fifths of the Member States must agree that there exists a real risk of a serious breach of the rule of law or democracy. In the Union of now 28 Member States, there is a very small prospect of it actually being successfully triggered. Initiating Article 7 TEU proceedings have actually already been flagged to be used for the Hungarian case both by the Commission and the European Parliament; however, in response the Polish government and the Lithuanian parliament have voiced their support for Hungary.

The Institutions and some Member States have started to draft proposals on how to improve the EU action in protection of rule of law. While institutions generally agree that monitoring should be developed and, for instance, the EU Fundamental Rights Agency given a wider jurisdiction to review Member States in protection of rule of law, creating enforcement mechanisms has proven trickier.

The German, Dutch, Finnish and Swedish governments have proposed a new initiative to extend EU enforcement powers in rule of law matters. The planned measures would put the Commission at the centre of the proceedings, and introduce “a structured political dialogue, or concluding bilateral agreements between the Commission and the relevant Member State”.

This part of the proposal does not seem to create a terribly effective solution. There is no way to enforce a Member State to participate in a dialogue or even less to entice to conclude a bilateral agreement if the offending government is of the opinion that it is not breaching any norms (as the Hungarian government consistently claims), or considers that it is being picked by the Union.

Therefore, the Governments have also proposed “as a last resort” the suspension of EU funding. This is an interesting and wholly different approach to the Union enforcement. However, few procedural considerations need to be taken into account.

If the Council were to make the decision, again the question can be asked whether this could change much. Would the Member States representatives be more effective in the Council than under Article 7 TEU procedure?

If Commission was given the right to withdraw or suspend EU funding, this could be too easily be interpreted as a political witch hunt by the Member State – the Hungarian government has also this present case claimed that the Commission is driven by political, rather than legal, motives.

Therefore, the Court of Justice should be involved in the process, preferably at the stage of when getting permission for the suspension of funds. This is the only way to try to ensure that the Union is perceived acting impartially in this very sensitive field.

In addition, the Commission has been asked by the Member States to get involved with the drafting of new solutions. The Swedish Minister for EU Affairs, Birgitta Ohlsson, has written in the EUObserver that it is time for Barroso to deliver on his promises to bring new proposals, referring to Commission President Barroso’s 2012 and 2013 State of the Union speeches.

However, there is one more complication though. In the end, giving the Union stronger powers for enforcement needs to be brought to life by legislation before anything more can be done. And, here the Member States are essential actors, since most likely a Treaty amendment is needed. The Commission can create any new proposals, but if the Member States are not on board, the proposals do not go forward.

The Commissioner Reding in her recent speech indicated that the Commission is looking into traditional remedies, making Article 7 TEU procedure more efficient, and involving the Court of Justice in the proceedings. Change of a Treaty provision, thus.

Meanwhile, the Union is bound by the limitations of Article 7 TEU procedure, and able to use mainly soft measures in enforcement. Against this background it should not be forgotten that the Council of Europe mechanisms are available to assess whether the Member States’ actions are really in conformity with the rule of law and human rights. And, with having only a limited power to act here, the Union, including the Member States, should support, rather than take the spotlight away from, the Council of Europe, creating less expectations for the Union action. Otherwise, there may be (yet another) disappointment coming of the Union’s abilities to solve problems regarding its Member States.

Helena Raulus

Ellen HeySydney, 26 August 2013

 

Dear Graduate of Erasmus School of Law and member of the class of 2013,

On behalf of the members of the Department of Public International and the Department of European Law I would like to address a few words to you on this very happy occasion.

Please allow us to congratulate you on your graduation in the Master in International and European Public Law. You have attained a remarkable milestone in your life and have spent this last year working very hard to get there. Besides congratulating you, we also let you know that we are honored that you have allowed us to guide you in this processes. Not only have we enjoyed the process, we have also learned during the processes, and we thank you for that opportunity.

Take a minute to think through who you are and who you where at this stage last year. What has changed? I suggest a lot. I also suggest that you have probably grown as a person and as a lawyer.

As to the future, we trust that you will continue to benefit from your education at Erasmus School of Law.  We wish you all the very best in the personal and working aspects of your life. We also hope that you will keep in touch through the department’s website.

I wish to add a short more personal note to this congratulatory message.

I very much regret not being present at your graduation. This feeling concerns all of you but even more in particular those of you whose master theses I supervised.

From Sydney, Australia, where I am on sabbatical, I congratulate all of you with your Master Degree in International and European Public Law and wish you all the very best!

For Dilyana, Sarah and Sophia I add, it was a great pleasure to supervise your master theses and thank you for allowing me to learn about the topics you engaged with.

Kind wishes to all of you

 

Prof Dr. Ellen Hey

Professor of public international law and coordinator of the Master IEPL

ICCWith both the International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR) moving closely towards ‘completion’ and the role of the International Criminal Court (ICC) becoming more and more important, the question inevitably rises whether there is still need for the establishment of temporary international criminal courts or tribunals (TICCT). Instead of focusing on the numerous possible weaknesses of these institutions in terms of attaining traditional objectives of domestic criminal punishment, this contribution addresses the usefulness of these traditional objectives as criteria for assessing the work of TICCT’s. After that, I shall argue for a relatively new criterion that allows for a more sophisticated appreciation of institutions in the field of International Criminal Law (ICL).

The traditional criteria

When comparing the success of the ICC with that of TICCT’s, for instance the ICTY, one needs to have items on which both institutes can score. There are long lists that name the often conflicting objectives of international criminal law. Since the ICC and TICCT’s deal with criminal justice, it is appealing to assume a natural link with national deontological (retribution) and teleological (deterrence, incapacitation and rehabilitation) objectives of punishment.

The deontological objective can be characterized as arising out of an act itself. While the primitive ‘an eye for an eye’ version of retribution is non-responsive to the context of the act, the widely recognized Kantian version of this objective allows for a more sophisticated system of justice. Although harshly criticized, retribution remains the main pillar on which most national criminal law systems are still based today. It seems therefore confusing that in multiple cases the ICTY has denied the Kantian reasons for punishment, especially when considering the motivation of the Security Council when it established the ICTR and ICTY.

Furthermore, the very existence of tribunals that have primacy over national courts can be seen as a grave violation of Kantian logic itself. Supremacy of (some) institutions in the field of international criminal law seems to be the ultimate denial of sovereign powers, in which Kant believed so much that he would not actively endorse any form of active rebellion. The ICC’s system of complementarity seems like a move away from the primacy principle. But the deontological criterion does not only fail when assessing TICCT’s. Concepts like a ‘universal jurisdiction’ and the jurisdiction over ‘the most serious crimes’ (art. 5(1) ICC Statute), which imply a certain measurement of the consequences of a crime, leave a very penetrating teleological odor to rise from the ICL institutions (Funk, 2010 & Musila, 2010). There are also more practical points of criticism with respect to the pursuit of deontological objectives by ICL institutions. One can think of the problems that the requirement of proportional reaction poses when convicting someone for international crimes like genocide (Drumbl, 2007, p. 150).

The above-mentioned may seem like a defense of other objectives like incapacitation, rehabilitation and especially deterrence, which is not the case. All three objectives incorporate utilitarian elements, making them by definition teleological. ICL does not seem to be focused on incapacitation given that its target is not primarily the active danger that certain individuals seem to pose on society. Also the principle of rehabilitation does not seem to play a big role in the statutes of the relevant institutions. The main perpetrators of international crimes are mostly not considered appropriate beneficiaries of rehabilitation either, although there are a few cases, such as Erdemović in which this objective is explicitly mentioned. With respect to deterrence, the majority of authors argue that it is the most important objective, especially in the period when the ad hoc tribunals were in their embryonic stage (see Alkhavan, 2001; Vinjamuri, L., 2010 & Damaška, 2008). But as the establishment of these tribunals did not succeed in preventing atrocities, this objective lost much of its power (Goldstone, 2000), the main tenets of which objective were formed during the Enlightenment by Cesare Beccaria. Beccaria’s approach distills three criteria on which the success of criminal punishment fully depends: the severity, likelihood, and celerity of the punishment. The fact that these three Western criteria are often at the heart of criticism of ICL makes our reliance on these traditional, and arguably unsuitable, criteria crystal clear (Bolton, 2001). I shall argue that in this very reliance lies a power which, if understood properly, can be used for an increased global acceptance of ICL.

A new criterion

Charles Taylor (the philosopher, not the president who was convicted for war crimes) argues in a paper written in 2002 that modern Western society is a product of specific developments during the Enlightenment. It was then that modern theories of a ‘productive’ society arose, refuting the class-based ones. These theories were founded on protestant work ethics, an insight which Taylor borrows from Max Weber. Taylor noted that cultural changes are constructed on the basis of the notion of a necessary order and come about through social imaginary, shaped by interaction. Rather than just being a theoretical idea of what it is to live in a society, Taylor tries to describe the daily rational behind all social activities of people interacting with each other. Hence, by openly debating theories of ICL, one can influence the social imaginary. From this follows that one of the central criteria of ICL is the ability to create an opportunity for communication with the offender, the victim and wider society about the nature of the wrong that has been done (Zedner, 2004, p. 109).

When comparing the ICC Statute with those of the TICCT’s from the perspective of this ‘communicative standard’, its superior clarity and elaborateness seems very clear. For instance, the modes of liability are far more structured in the ICC Statute (arts. 25 and 28) than in the ICTY Statute (art. 7). This is not surprising since almost all TICCT statutes had to be created in a relatively short time and in keeping with certain characteristics of relevant domestic legal regimes (Annual Report of the ICTY 1994, S/1994/1007, par. 34-36, 143-9; Annual Report of the ICTR 1996, S/1996/778, par. 12). Consequently, the ICC seems to be superior to the ICTY/R or many hybrid/internationalized courts when it comes to communicating the law, for it provides more elaborate reasons for the way in which the ICC operates. This approach will certainly have advantages when conveying ICL’s rationale. Also, the possibility for more than twelve TICCT’s to change legal definitions entails the risk of fragmentation of law i.e. could lead to different interpretations of law, which in turn leads to legal uncertainty and poses a risk to clarity.

However, one can also hardly deny the important role the TICCT’s played in the creation of the ICC statute and its offices, thereby contributing to its communicative standard. Rather than merely naming this contribution as a historical necessity without seeing the potential of TICCT’s an sich, I shall argue that there are at least two good reasons for the communicative necessity of the TICCT’s.

The communicative value of the TICCT’s

The best positivist account that takes the acceptance of law seriously is Herbert Hart’s concept of law. According to Hart (1961), there must be an internal motivational aspect to obeying the law. Merely forcing rules onto people will not only result in disobedience to the law, it will also result in the non-existence of this very law, as its inherent support is its ontological precondition. The above-mentioned Weberian mechanism is a highly persuasive approach to form the necessary social imaginary that is needed according to Hart. When one chooses this approach one might prefer to create a specific context instead of following more general principles, as is the case with the ICC. By stretching applicable norms too much, for example, the ICC, or any criminal court, could easily overplay its hand, thereby reducing the previously mentioned necessary internal motivation. In so doing, courts would diminish the very core of their legal body, which resolves to being merely a ‘rule of conduct’, as Hart puts it. This brings us to the second and closely related reason why TICCT’s are crucial to fulfill this communicative criterion.

Jürgen Habermas gives us the most solid definition of a communicative order, which is remarkably similar to Hart’s concept of law. To successfully transmit normative concepts, one needs to seek for a rationality that arises in the current everyday language. Hybrid courts, such as the one in Sierra Leone or the internationalized tribunal for Lebanon are a relatively open forum for debating ICL. Also, TICCT’s may communicate more in line with the cultural context because of their local connection. By postulating extensive and closed definitions of crimes like ‘aggression’ the ICC is closing the necessary debate which is crucial for a successful transmission of rationality. The establishment of more context-sensitive courts to secure a hybrid position of ICL seems like the only solution to guarantee ICL’s acceptance and ultimately, its influence.

Conclusion

The possibility to create a new legal foundation in the form of a communicative rationality by aggressively competing with the already existing national powers is very difficult. Instead, it should stem from the self-interest of the actors involved, as if it were a social contract. To accomplish this there is a need for a much more subtle, ‘rational’ objective. Neither the deontological nor the traditional teleological criminal law objectives can match the communicative standard regarding this issue. The ICC does not have the means to evolve towards the communicative order necessary for this context-sensitive grounding of ICL. By creating TICCT’s, ICL runs a smaller risk of overplaying its hand, a risk that looms when laws are created too far from the public opinion. It also guarantees a ‘hybrid’ position; ICL needs its more sensitive roots to stay in touch with society. From there, it may grow its own deontological logic, but in order to reach that stage, ICL need multiple institutes to communicate.

Charles (T.) de Leau – Student of the Master course International Criminal Law (2013)

On February 18-20, 2013, the WTO opened (again) its doors to the public. The occasion has been the first hearing of the so-called Seal product dispute. The case, which attracted some publicity after the involvement of Pamela Anderson (the actress wrote to the Canadian Minister of International Trade to ask Canada to make all the submissions to the WTO publicly available; to read the letter click here), is the first in WTO history to revolve around the question of animal welfare.

The dispute is about a ban on the sale of seal products in the European market (for an overview of the European legal framework for trade in seals click here). Canada and Norway, who are among the biggest producers of seal products, oppose the ban and have challenged the European measure before the WTO dispute settlement (DS) mechanism. A Panel was established on 4 October 2012. (Information and documents on the case can be found here; a video about the case, posted by an NGO can be viewed here). The gist of the dispute is whether the ban is discriminatory and whether it is justifiable under WTO law. According to Brussels, the ban is necessary because there is no other way to halt the cruelty of the seal hunting practice; by contrast, Canada and Norway find that the European regulation is discriminatory and not justifiable under current WTO law. Among the contested dimension of the European scheme are three exceptions embedded in the regulation: the Indigenous Communities exception (by which seals products hunted by indigenous communities for subsistence purposes can be imported in the EU market, also referred to as ‘Inuit exception’), the Marine Resources Management (MRM) exception, and the travellers’ exception.

Given that the readers of this blog are not all WTO experts, I will not delve into WTO legal issues (such as the applicability of the TBT Agreement, or the various interpretations that can be given of Article III.4 GATT 1994 and Article XX (a) and (b) GATT 1994; for a brilliant discussion of the legal issues read this article Howse, R. L. and Langille, J., Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Permit Trade Restrictions Justified by Noninstrumental Moral Values (2011). Yale Journal of International Law, Vol. 37, 2012; for a piece more critical of the European measures read Fitzgerald, Peter L., ‘Morality’ May Not Be Enough to Justify the EU Seal Products Ban: Animal Welfare Meets International Trade Law (May 1, 2011). Journal of International Wildlife Law & Policy, Vol. 14, p. 85, 2011). I also refrain from providing an overall assessment on the merits of the dispute. I focus, instead, on a couple of questions, which may be of general interest in understanding the delicate relationship between WTO law and the goal of protecting animal welfare.

Policy coherence: are some animals more equal than others?

Tamara Perisin, Professor of International and European law at Zagreb University, has raised some concerns over the policy coherence of the European measure (for Professor’s Perisin full argument read her blog-post here). In a comment to the paper by Howse and Langille, who passionately defend the EC measure, Perisin writes:

‘The EU claims that the aims of the measures are animal life and health and/or concern for animal welfare which can be understood as part of public morals. These are undoubtedly legitimate aims, but I would like to open discussion on whether these are indeed the aims of the EU measures. Canada and Norway are likely to argue that the measures’ aim is not legitimate, but rather that it is protectionist. Indicative of protectionism (but certainly not conclusive proof of it) is the fact that the EU banned seal fur, which the EU itself does not really produce, while it remains the world’s largest producer of farmed fur (fox and mink), the world’s largest fur marketing company is based in the EU and the largest fur fair revolving mostly around the mink and fox trade is in the EU.’ (emphasis added)

The reasoning is captivating and it resonates with the critique George Orwell raised in Animal Farm: Are some animals more equal than others? While captivating, the reasoning is deceptive. Let us first look at the logic underpinning Perisin’s argument: The aim of the EU measure is to protect animal welfare. Europe, which is an important producer of fox and mink fur, does not ban fox and mink products. Foxes and minks are animals as much as seals are; ergo, the European measures cannot sincerely aim at animal welfare.

This reasoning is fallacious in two ways. The first (possibly crucial for the case) is that Europe argues, inter alia, that it is virtually impossible to hunt seals humanely, given the environmental conditions under which seals are hunted (e.g. in order to kill humanely, the hunter needs to hit the seal precisely; however, seals are a moving target; when shooting is involved, there are problems related to visibility and to the fact that boats are moving objects; the territory of the hunting is immense, which makes monitoring very difficult, etc.) (all the arguments by the EC can be found in the EC first written submission). By contrast other animals can be more easily killed in a humane way. The comparison, thus, is not between animals being all the same, but on the possibility of killing them humanely. From this perspective, Perisin’s deduction is flawed.

But let us bear with Perisin argument for a moment. Assume that Europe is protecting seals differently than foxes. Should this cast doubts on the true aim of the measure? And should the seal ban be considered to aim at animal welfare only if the sales of other animals’ products are regulated in exactly the same way?

Perisin reasoning seems to rest on the premise that total policy coherence is necessary for dispelling doubts about protectionism. This reasoning is extremely dangerous as total policy coherence is arguably impossible to achieve. A government has to start somewhere; regulating everything at the same time is unreasonable. If any measure on animal welfare would be faulted at the WTO because not all animals are treated equally, the domestic policy goal of animal welfare could never be attained. In other words, if the comparison between the treatment of different animals would guide the WTO judges in their assessment of the trade measure, it may well be the case that no animal welfare measures will always be judged compatible with WTO law.

This is not to say that a specific measure cannot be read in its broader regulatory context. Looking at policy coherence may indeed be meaningful in the context of a WTO analysis concerning animal welfare (and for that matter other social/environmental issues). But policy coherence is rather different than total policy coherence (and, of course, allowing some exceptions in a certain regime does not conflict with policy coherence but will surely collide with total policy coherence). In our case, looking at whether Europe defends values of animal welfare may be important. However, this is different than regulating the welfare of all animals and regulating all animals in the same way. Say that Europe would have no other measure (be it formal law or policy documents) on animal welfare, then the seal ban may look somewhat suspicious. But European law on animal welfare is rather broad (see Howse et al. quoted above for an overview of European animal welfare laws). It is within this context that the Seal ban can be better understood.

Emotions and Rationality at the WTO: on why it is rational to be on the side of the ‘cute’ seal

The argument of total policy coherence is conflated with another, possibly even more dangerous. Perisin raises the fundamental question of whether Panels should accept public morals justifications based on irrational attitudes:

‘… the second issue is whether the EU public is indeed worried about seals and, if it is concerned, why should this be so? There are numerous animal products available on the EU market and it is unclear what distinguishes those products from seal products, or those animals from seals. … Thus, if the only reason for banning seal products as opposed to other animal products is that seals are “cute”, then the Panel needs to decide whether it wants to accept public morals based solely on irrational, emotional attitudes’.

Cognitive psychologists have amply shown that rationality is not just about analytical reason, but also about ‘emotions’. In a seminal study, neurologist Antonio Damasio concluded that without affect and emotions, it is almost impossible for human beings to behave rationally (A.R. Damasio, Descartes’ Error: Emotion, Reason, and the Human Brain, New York: Avon, 1995). The main issue is that, in many circumstances, action is triggered by emotions. As put by cognitive psychologist Paul Slovic and his colleagues, ‘[a]ffect is essential to rational action’ (P. Slovic, M.L. Finucane, E. Peters and D.G. MacGregor, ‘Risk as Analysis and Risk as Feelings: Some Thoughts about Affect, Reason, Risk, and Rationality’, Paper presented at the Annual Meeting of the Society for Risk Analysis (New Orleans, Louisiana, 10 December, 2002). An important insight from this body of scientific work is that emotions are often essential for human beings to take actions. The lack of what is termed ‘affect heuristic’ may explain why, as societies, we failed to act to stop genocide (P. Slovic, ‘Numbed by Numbers’, (2007) Foreign Policy) or to mitigate environmental problems. (For an analysis of the relevance of this body of scholarship for risk regulation see Arcuri (2013), ‘Reimagining risk regulation: from reason to compassionate reason?’ in Law and Technology: The Challenge of Regulating Technological Development (eds. E. Palmerini and E. Stradella, RoboLaw Series directed by E. Palmerini, R.E. Leenes, K. Warwick and F. Battaglia, Pisa University Press).

If we apply this reasoning to the seal case, it may turn out that, if the ‘cuteness’ of the seal played some role in getting the ban approved, this was rational indeed. The emotional involvement of citizens may have pushed a process that the ‘unemotional’ regulators may have never initiated. And yes you may call the measure emotional, but not for that reason, irrational! (Incidentally, this blog-post does not touch upon the fact that the measure has been adopted following a democratic process. Also in the light of the democratic process underpinning the measure, some caution should be used before suggesting that WTO judges should be deciding on the supposed ‘rationality’ of the public morals of its Members; for some work discussing the question of democracy and risk regulation see K. Shrader-Frechette, Risk and Rationality: Philosophical Foundations for Populist Reforms, Berkeley: University of California Press, 1991 and D.M. Kahan, et. Al., ‘Fear of Democracy: A Cultural Evaluation of Sunstein on Risk’, (2006) 119 Harvard Law Review 1071)

Interestingly, during the public hearing a shocking video about the cruelty of seal hunting was shown (for other videos on the methods of seal hunting click here). Arguably, such video may ‘affect’ the perceptions of judges, as already evidenced by the sarcastic statement of one of the Panelists during the hearing: ‘The video does not encourage me to have a meat dish tonight – instead I’ll opt for raclette’ (you can read more about the public hearings here and here). Hopefully these few notes are sufficient to indicate why bringing ‘emotional’ evidence at the WTO does not entail the abandonment of the rational predicate upon which the organization rests (in case someone would be tempted to argue so).

Alessandra Arcuri

The very recent Horvath and Kiss v Hungary case of the European Court of Human Rights (Court) concerns a complaint under Article 2 of Protocol No. 1 (right to education) read in conjunction with Article 14 (right to equal treatment) of the European Convention on Human Rights (ECHR). In the applicants’ view ‘the improper shunting of Roma children into special schools constituted indirect discrimination’ (para. 90), as ‘Roma were uniquely burdened by … the wrongful placement in special schools’ (para. 91). They argued that ‘the tests used for placement had been culturally biased and knowledge-based, putting Roma children at a particular disadvantage’ (para. 92). The Court concluded that

‘[s]ince it has been established that the  relevant legislation, as applied in practice at the material time, had a disproportionately prejudicial effect on the Roma community, and that the State, in a situation of prima facie discrimination, failed to prove that it has provided the guarantees needed to avoid the misdiagnosis and misplacement of the Roma applicants, the Court considers that the applicants necessarily suffered from the discriminatory treatment’ (para. 128, emphasis added).

In the Court’s view, the statistical data showing the overrepresentation of Roma children among pupils in special schools reveal ‘a disproportionately prejudicial effect on the Roma’ (para. 110), which can be qualified as indirect discrimination (para. 111). The judgment can, indeed, be praised for embracing the concept of indirect discrimination and admitting statistical evidence as a form of proof (see also D.H. and Others v The Czech Republic). However, the qualification of the ‘violation’ at stake as indirect discrimination and thus the Court’s approach towards this form of discrimination might be challenged on several grounds, in particular on the basis of using the language of direct discrimination (less favourable treatment, bias in past placements) or of the language of systemic discrimination (past discrimination, systematic misdiagnosis, dominant trend). (For related comments on this case see: Horvath and Kiss Judgment on Roma education and Horvath and Kiss v. Hungary: a strong new Roma school segregation case). Not only this qualification itself, but the manner in which the Court dealt with another important segment of discrimination law, that is the allocation of the burden of proof, can also be up for debate – and will be the subject of the present analysis.

Discrimination law has developed to a great extent through the jurisprudence of the European Court of Justice (ECJ, now Court of Justice of the European Union, CJEU), which jurisprudence also had impact on the approach of the European Court of Human Rights. The ECJ has noticed the difficulties applicants face when proving their complaints related to discrimination, so it has devised special rules on the allocation of the burden of proof, which were later adopted in several directives – among which the most well-known ones are the Racial Equality Directive (43/2000/EC) and the Framework Equality Directive (78/2000/EC). Pursuant to these rules as soon as the applicant has established a presumption of discrimination, it is for the respondent to prove that there has been no discrimination (see e.g. Article 8 of the Racial Equality Directive). Accordingly, two phases can be distinguished in coming forward with evidence: the so-called prima facie phase (presumption) and the refutation phase. The refutation phase can be interpreted as including two steps: the respondent can first negate the presumption, and second he can also try to justify the less favourable treatment (direct discrimination, see e.g. Article 2(2)a) of the Racial Equality Directive) or the disparate impact by a seemingly neutral measure (indirect discrimination, see e.g. Article 2(2)b) of the Racial Equality Directive). Negation means that the respondent bears the burden of proving that there has been no less favourable treatment/disparate impact. When it comes to justification, the respondent already accepts that the treatment is less favourable for an individual/group or that a neutral measure disparately impacts a particular group of people, but the state tries to argue that it has good reasons for applying the particular treatment or for adopting the particular measure. The grounds of exceptions are very limited in cases of direct discrimination, while the concept of indirect discrimination incorporates an open form of justification. Irrespective of the ‘shift’ in the burden of proof, it is always the respondent who bears the burden of proof with regard to the justification, which is a form of legitimate limitations (see e.g. the second paragraphs of Articles 8-11 ECHR). It is generally accepted that in order to ensure effective enforcement of one’s right to equal treatment, these special rules on the allocation of the burden of proof should be applied by each (quasi-)judicial body in cases of alleged discrimination.

It is to be welcomed that the Court has tried to apply this ‘shift’ in the burden of proof in the Horvath and Kiss case. When it elaborated on the general principles, it laid down that it is ‘prima facie evidence the applicant is required to produce’ (para. 107). In other words, the Court accepts that the applicant ‘only’ has to establish a presumption of violation. Even more explicit, the Court explains that ‘[w]here an applicant alleging indirect discrimination establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden of proof shifts to the respondent State. The latter must show that the difference in treatment is not discriminatory’ (para. 108, emphasis added). This language implies as if the Court refers to either negation or to the whole refutation phase (negation and justification). Based on the actual application of these general rules to the complaint of Horvath and Kiss, the Court, however, makes clear that it actually only referred to justification. In the Court’s view, proving the non-discriminatory nature of the treatment equals the lack of ‘objective and reasonable justification’ (para. 111).

Why is this approach problematic from the perspective of the Court’s assessment of the Horvath and Kiss case? The negation step essentially concerns denying the causal link between the protected group and the harm suffered as well as the causal link between the treatment/neutral measure and harm. While in case of direct discrimination there is a clear causal link between, e.g., someone’s ethnic origin and the harm (e.g. she/he was not employed because of her/his Roma origin), such an evident causal link does not exist in indirect discrimination cases which focuses on the effect of a certain measure that is formulated in neutral terms on a particular group. The negation of the causal link between the treatment/measure and harm is more likely to be invoked in indirect discrimination cases (e.g. the disparate impact was not caused by the rule at stake) than in case of direct discrimination. Arguably, the respondent tried to negate this causal link when it argued that the ‘[d]isproportionate representation of Roma children in special education was explained by their disproportionate representation in the group deprived of the beneficial effects of modernization on the mental development of children’ (para. 96., see also para. 110., last sentence). Put differently, the respondent state tried to show (even though not very convincingly) that the disparate impact was not caused by the testing, rather by other social factors. This argument is not part of the justification narrative, as it essentially states that even though there is a disparate impact on a particular group this cannot be attributed to the measure at stake.

Although implicitly, the Court seems to have realized the different nature of this argument, and thus the distinction between negation and justification, as it first assessed the actual negation of the link (para. 110), and only thereafter it stated that there is a ‘prima facie case of indirect discrimination’ (para. 110). It continued by saying that for this reason, it falls on the state to prove that there is an objective and reasonable justification for the measure adopted (paras. 111-112). It is much appreciated that the Court, at least implicitly, included the step of negation in the assessment. However, the wording of the judgment gives the impression that in the Court’s view there is a prima facie case of discrimination only when the respondent cannot negate any of the causal linkages. Conceptually, this approach cannot be regarded as correct, given that it has already been proven (presumption and failed negation) that there is an interference with the right to equal treatment, which is more than a mere presumption. In other words, if the Court equates a prima facie case of discrimination with the need to prove an interference with one’s right not to be discriminated against, this could lead to a higher standard of proof for the applicant, and thus to the non-application of the special rules on the allocation of the burden of proof.

All in all, it seems that understanding the ‘refutation’ phase as merely including ‘objective and reasonable justification’ made the Court put the establishment of a presumption of discrimination on equal footing with the proof that there has been an interference with one’s right to equal treatment. Although it might just be a question of formulation, given the binding nature of the judgment as well as the power of precedents, this might be a risky misspeaking.

Mónika Ambrus

‘The Secret Drone War’ was the title of a recent widely-seen short documentary film by the BBC that reveals an officially ‘secret’ but altogether public affair: the reality and the extent of damage inflicted by United States’ counter-terrorism operations using Unmanned Aerial Vehicles (commonly called ‘Drones’) in tribal areas of North-Western Pakistan (see map). The documentary unveils a grim picture as it follows individual stories of drone attack-victims such as an 8 year old Nabila who lost her grandmother, a young Kaleem who was injured by a follow-up drone attack when he rushed to his grandmother who was just blown to pieces by the first round bombing, and a sports-celebrity-turned-politician Imran Khan who organizes public rally with the motto ‘No More Drones!’.

It is commonplace to suspect that official governmental accounts of civilian casualties during military operations, conveniently labeled ‘collateral damages’, are usually doctored to modest appearance. But the US counter-terrorism drone attack had scored exceptional public relations success in terms of imprinting that laser-sharp, pin-point precision vehicle in the public imagination – in fact, the main selling point of drone operations, particularly to the American public, was its minimum civilian casualty feature (In the words of John Brennan, President Obama’s chief counterterrorism advisor, drones function with ‘astonishing’ and ‘surgical’ precision).

Well, reputable sources reported a couple of years ago that the label of ‘low-civilian casualty’ could not be farther from the truth. To the contrary, it is suggested that up to 98% of drone inflicted death are  civilians; for every militant killed, 50 civilians are also killed (David Kilcullen and Andrew McDonald, ‘Death from Above: Outrage from Below’. The dramatic discrepancy as between these figures and those near-zero estimates (exact figures are never given!) insisted upon by the US government has been a puzzle.

A recent joint report by the Law Schools of NYU and Stanford University titled ‘Living under Drones’ bridges exactly this gap. The report suggests that the epic discrepancy between the two sets of figures is attributable to the use of sub-standard method by the US government in determining whether a person is civilian or militant. This method is straightforward: every adult male is presumed to be a militant, unless proven otherwise – posthumously! This method, by simply converting civilians en mass in to ‘militants’, absent exonerating evidence, makes all the difference in counting casualties.

As alarming a picture as these findings paint – and perhaps representing gross violations of international legal norms on human rights and the use of force to say the least – the search for legal accountability is even more distressing due to the fact that neither of the two states involved in the case, the US and Pakistan, are interested in bringing the matter to the public light. In the case of the US, the government never officially acknowledged it conducts drone attack, despite admittance to that effect repeatedly provided by several top officials, including President Obama (See a speech by John Brennan defending the efficacy and ethics of drone attacks). This is, indeed, rightly dubbed as a policy of ‘secrecy for the purposes of accountability, but not for credit-claiming’.  Deriving from this policy of secrecy, there is no publicly accessible US government document as to the legal basis used for drone attacks, or as to the process through which a decision is made to kill a particular ‘militant’, or as to the extent of attacks and casualty.

On the part of Pakistan, the government has no political interest in exercising international inter-state judicial (or non-judicial for that matter) mechanisms to hold the US to account for the violations on Pakistan’s sovereignty or the rights of its people. The Pakistani government has allowed the use of its air space by the US, implicitly approving any aerial activity conducted by the US, including drone attacks. US diplomatic cables from 2008, revealed by Wikileaks, quote Prime Minister Yousaf Raza Gillani: ‘I do not care if they [the US] do it as long as they get the right people. We will protest in the National Assembly and then ignore it’. Moreover, ‘the drone program appears to have expanded to include the targeted killing of members of Pakistani insurgent groups, individuals selected as targets by the Pakistani government and others’(FOIA Request, ACLU ).

In the face of manifest disinterest for legal accountability on the part of the traditional actors in international law, states, new actors seem to rise to the occasion.  United Nations’ human rights bodies and civil society organizations in the US are crying accountability, at the international and domestic levels respectively. While expressing his resolve to investigate the matter, the UN Special Rapporteur on human rights in counter-terrorism said ‘if the relevant states are not willing to establish effective independent monitoring mechanisms…then it may in the last resort be necessary for the UN to act’ (The Guardian, 25 Oct. 2012).

The American Civil Liberties Union (ACLU) on its part is already exhausting domestic judicial remedies in the US: it first requested the relevant US government agencies for the disclosure of information regarding, inter alia, ‘the legal basis in domestic, foreign, and international law for the use of drones to conduct targeted killings’; upon a non-disclosure response from the agencies, the ACLU instituted a proceeding at the D.C. District Court (ACLU v. DoJ, DoD, DoS, CIA, Case No. 10-cv-0436) requesting injunctive relief for the release of information, but the court ruled in favor of the US government. The ACLU has since appealed to the D.C. Circuit Court of Appeals (ACLU v. CIA, Case No. 11-5320), which has yet to render decision on the case. During the oral proceedings held before this appellate court in September 2012, the judges seemed to be unmoved by the government counsel’s claim that information regarding drones is classified and should be withheld; Judge Merrick Garland rhetorically asked the government counsel, ‘…aren’t you asking us to say that the emperor has clothes even when the emperor’s bosses [top officials including the President] say it doesn’t?”. If the remarks of the appellate court judges are any indication, modest victory seems near for those challenging the ‘secrecy’ that shields the business of targeted killing.

Nathanael Tilahun Ali

Erasmus School of Law

In een werkstad als Rotterdam is arbeidsrecht elke dag onderwerp van discussie. Een in arbeidsrechtelijke vraagstukken gespecialiseerde sectie kan dan ook niet ontbreken binnen Erasmus School of Law te Rotterdam. De sectie Arbeidsrecht is een jong en dynamisch team van arbeidsrechtspecialisten. Blijf op de hoogte van de wervelende dynamiek binnen dit wetenschappelijke vakgebied en het praktische werkveld: het arbeidsrecht volgens de Rotterdamse school!

Decaan ESL

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