Martijn Keeman on the Piracy Panel

In this blog post, Martijn Keeman (University of Amsterdam) looks at the panel discussions on the legal grounds for the fight against piracy as well as the argument (see link)  that Somali pirates are eco warriors/freedom fighters:



        Too high a Wave? Legal Grounds for the Fight against Piracy



The recent fight against the ‘17th century crime’ of piracy has set much in motion. It has united the United Nations P5 in operations for the first time since WWII, brought China's warships outside the Pacific for the first time in 600 years, and led to the establishment of the EU’s first naval operation, Atalanta. Next to these military operations, a string of UNSC Resolutions such as 1816 (2008) have been drafted providing Chapter VII power for combating piracy. In such a climate of co-operation and common grounds, it must be doable to reach a consensus on the legal grounds for the fight against piracy.


The ILA 2010 conference panel on the topic was composed of an interesting mix of academics and practitioners. Dr van Ginkel first set out the political and legal framework. She noted that in general, a lot of the modern Somali pirates are well-organized and well-equipped. Mr Kioko then made some interesting remarks on the view of the African Union (AU) on the problem.

On the question of where these pirates belonged in terms of prosecution, the AU had no problem with them being tried outside the continent. Although there have been memoranda of understanding signed by Western nations with countries such as Kenya and the Seychelles, for the transfer of pirates to the latter countries for prosecution, and there is interest on the part of  countries such as Tanzania in entering into such agreements, the AU takes a pragmatic stance on the actual place of prosecution.

ILA 2010 IN PICTURES

Chair of the 2010 Conference, Outgoing President of the Netherlands Branch and New President of the ILA, Prof. Nico Schrijver



                                                               

                                                                 Prof. Ernst Hirsch Ballin, Minister of Justice of the Netherlands

                                                                            

General Opening Session of the Conference

Dr. Sarah Nouwen delivering the contribution of the Programme Chairs

Conference dinner at the Ridderzaal (Hall of Knights)

Harp performance by Remy van Kesteren

                                            The Rt Hon Lord Mance, Chairman of the ILA Executive Council
                                               Conference dinner at the Ridderzaal (Hall of Knights)

Martijn Keeman Reports on the Climate Change Panel

Martijn Keeman (University of Amsterdam) has sent in the following report in which he analyses the panel debate and dwells on the complementary role of both the public and private sectors in solving the climate change dilemma. His emphasis on private sector initiatives mirrors the stress placed by some participants at the world financial crisis panel on the role of the private sector in averting another crisis.


Report by Martijn Keeman


The thread of this session was whether international law could steer a favourable outcome for the next conference in Mexico or even drive the effort to mitigate harmful climate change, as the outcome of Copenhagen is still crystallizing at best. When political leadership seems to be failing, can international law take the lead and promote or enforce policy changes?

Cancun (the next and 16th UN conference of parties to the Climate Change Convention scheduled for November and December 2010) was, of course, never intended to be the final stop on the road to tackling climate change, but the panellists shared the view that there was unfortunately little prospect of a global agreement on emission reduction emerging from the conference. Professor Murase already wished to look beyond Cancun for policy changes to come, and Professor Gupta concurred in that the momentum seemed to have halted after the Copenhagen conference.


The reality is that in states' parlance as of now, ‘E’ is for economy and not for environment.

Panel on Climate Change : Report by Prof. Lavanya Rajamani

Lavanya Rajamani (Professor at the International Law Centre for Policy Research, New Delhi and Chair of the ILA 2010 conference panel on Climate Change) has sent in this report of the panel discussions with an emphasis on the role of governments in addressing climate change:



An Afternoon Debating the Future of the Climate Change Regime and the Influence of Human Rights Approaches

An afternoon of conversations on climate change kicked off with a panel discussion featuring Professor Shinya Murase, Sophia University, Professor Joyeeta Gupta, Vrije University and Dr Margot Salomon, LSE. And, continued in the Open Working Session of the ILA Committee on the Legal Principles Relating to Climate Change.


Although climate change is at the top of the international agenda, and tremendous political capital has been expended on it in the recent past, a solution to this vexing problem is far from sight. The United Nations Framework Convention on Climate Change (FCCC), 1992, and its Kyoto Protocol, 1997, contain emissions reduction commitments that are both inadequate and inadequately implemented. Negotiations scheduled to arrive at an “agreed outcome” at Copenhagen in December, 2009, are still ongoing. The non-binding Copenhagen Accord arrived at in December 2009 among heads of states of 28 Parties to the FCCC, takes but a limited step forward.

Panel on the Responsibility of the International Lawyer for Legal Advice that Leads A Government to Violate International Law

From the Editor

In the build up to NATO’s military intervention in the Balkans, as NATO countries sought to justify their plans for a military intervention in the Former Yugoslavia without Security Council approval, Madeleine Albright (US Secretary of State under the Clinton Administration) is famously alleged  to have replied as follows, when her British counterpart complained of problems getting UK government lawyers to sign off on the intervention: “get new lawyers”.

Whether or not NATO’s bombing of the Former Yugoslavia was legal remains a subject of debate in academic and political circles. Regardless, the Albright anecdote aptly underscores the role of the government legal advisor in justifying governmental action which might constitute a breach of international law.

It is this role that formed the subject of the ILA 2010 panel on the responsibility of the international lawyer for advice that leads his/her government to violate international law. As the decision of a government to prosecute an illegal war, torture prisoners, violate an investment treaty or act in any other manner that is in breach of international law may be based on the advice of a legal advisor, the question arises as to what responsibility should be borne by the legal advisor for such advice.

As a preliminary point, it is worth noting that there are two senses in which the term “responsibility” may be understood here: first in terms of a duty of conduct that attaches to the role of legal advisor; and second, in the - more controversial - sense of (civil or criminal) accountability of the legal advisor for advice that contributes to a government’s violation of international law. Though there had been some discussion (and spirited exchanges) at the conference on responsibility, understood in the second sense (see below), the panel had focused mainly on responsibility in the first sense – in the sense of a duty of conduct (a duty of care) that attaches to the role of legal advisor.


Both Daniel Bethelehem (Legal Advisor, Foreign and Commonwealth Office of the UK) and Liesbeth Lijnzaad (Legal Advisor, Ministry of Foreign Affairs, The Netherlands) had referred to the responsibility of the government legal advisor to advice with candour, confidence and courage and to be prepared to tell government officials things they may not be willing to hear. They had also stressed the importance of “pre-emptive” advice: the need for the legal advisor to be involved in the shaping of policies from the onset. Such “pre-emptive” participation would enable a legal advisor to alert the relevant authorities on time as to the legal implications of their proposed policies. Both panelists also acknowledged that the extent to which a legal advisor is able to fulfil these roles is dependent on how much access (s)he has to the key decision makers and the process of decision making. As Lijnzaad pointed out, what happens in some cases is that the advisor is presented with the end product of policy deliberations. Bethlehem  had additionally noted that access also means the conditions must be such that the advisor is able to advice in an unrestricted and frank manner. Besides personal access, the advisor has to have the trust and confidence of her or his  principal.

There was some discussion on whether it was better for controversial legal advice to be contracted out to private lawyers, who because of their independence from the government may be better positioned to give honest and objective legal opinions. Howard Morrison (Chair of the panel and Judge of the International Criminal Tribunal for the Former Yugoslavia), however, pointed out that private lawyers are not necessarily free from the same constraints that may plague government lawyers. It was not unknown, he said, for a private lawyer to bend over to give a client advice (s)he believes the client would like. In other words, the "get a new lawyer” problem (the problem of a government retaining a legal advisor whose advice is tailored solely to what the government wants to hear)  may not be exclusive to government lawyers.


Both panelists had also pointed to a rather important distinction between legality and wisdom as it concerns legal advice. The fact that a given course of action is lawful does not necessarily mean that it is wise and vice versa. As Bethlehem noted, law and legal opinion has been known to be used to shut down discussion on issues meriting further consideration. The same point was emphasized and elaborated on by the Koji Tsuruoka (Director General, Legal Department Ministry of Foreign Affairs, Japan). In an incisive presentation in which he had fully addressed responsibility in the two senses of a duty of conduct and of legal accountability, Tsuruoka had identified two approaches that can be adopted by the legal advisor in carrying out his duties. There is, first, the conservative approach, in which what the advisor looks at is not the legal permissibility of a given course of action, but whether it is flawless or beyond questioning from the perspective of international law. Then, there is the creative approach, which looks at how law can be shaped to serve humanity. The creative approach was in his view an approach called for in the 21st century, a period in which international law and the structures of the international legal system are in a process of rapid change and evolution. Since law is by nature conservative, it can, he pointed out, constitute an obstacle to policies which while they may make the world a better place, may nonetheless be considered illegal. It is at such moments of fluidity that an international lawyer should be creative in his/her advice and find ways of legitimising actions which serve the ultimate goals of the international order.

As it concerns the issue of accountability of the legal advisor, Daniel Bethlehem had referred the audience to the extensive treatment of the question in the United States. (In the U.S, two government lawyers had been found guilty of professional misconduct for advice to the Bush administration which justified waterboarding and other treatment of Al Qaeda prisoners found to amount to torture. (See New York Times Report). Lijnzaard, on the other hand, emphasizing the need for a clear distinction between an advisor’s advice and how that advice is used, had concluded that a legal advisor could not be responsible for policies taken based on his advice. She had, in particular, noted that a declaration by a politician that his policies are supported by the law does not necessarily mean this is the conclusion to be drawn from the legal advice provided by the legal advisor.

It is worth bearing in mind that Lijnzaard’s views seemed focused on the responsibility of the legal advisor for policies developed relying on his advice. Assuming one agreed there should be no responsibility in that context (since as Bethlehem rightly pointed out, the sole role of the advisor is to advice, (s)he does not make policy) such agreement still leaves unanswered the question whether the legal advisor should be responsible for the advice itself, as opposed to policies based thereon.

It is this issue that was squarely addressed by Tsuruoka. He had addressed it mainly from the perspective of international legal responsibility (as opposed to political responsibility and responsibility for breach of professional codes of conduct which the other panelists had mainly focused on). Though he considered such responsibility to be theoretically possible before the International Criminal Court (ICC) and even human rights courts, he expressed doubts as to whether legal advisor responsibility was envisaged in international law, and in particular by the ICC Statute. This view, he noted, was without prejudice to the position that a legal advisor is, as a servant of the government, in any case accountable to his masters, and based on international law which is what he is called to serve.

Tsuruoka had also discussed the appropriateness or otherwise of holding a legal advisor responsible for his legal advice. He noted that such responsibility might be questioned on the basis that in rendering legal advice, a legal advisor is acting as an officer of the State, and is not - can be presumed not to be - giving his/her personal opinions. Several conference participants, however, disagreed with this idea of the legal advisor disappearing behind the impersonal inscrutable face of the State. They felt the buck of responsibility should not stop at the feet of the political leaders who rely on  legal advice to violate international law.

Whether or not the legal advisor should be responsible in international law is certainly an interesting question because though the general international law rules on responsibility could be said to provide for responsibility for conduct of government advisors (regardless of whether or not their actions are tainted by private motives), those general rules are concerned solely with the responsibility of the State itself. They were not intended to govern the separate question whether an advisor is personally responsible for his advice, alongside the State itself. This is a question to be determined by international criminal law (and any other specialised field that might evolve to provide for individual as opposed to State responsibility). With respect to international criminal law, one can speculate that the conduct of a legal advisor could well be covered by Art 25 of the ICC Statute. That provision provides for the responsibility of persons who induce, aid, abet or otherwise assist in the commission of a crime governed by the Statute. 

REGIONAL ORGANIZATIONS AT THE CONFERENCE

ILA 2010’s general opening session was unique as it was the first time six regional and sub regional organizations were all represented at the conference. The panel at that session was made up of leading officials of African, American, Asian, European and Latin American regional associations of international law, as well as the president of the French Society of International Law. The session was also an occasion to discover that the African Foundation of International Law had been unseated as the youngest regional society of international law by…the Latin-American Society of International Law. The Latin-American Society of International Law will be holding its first congress from 8 -9 September 2010.

Séverine Menétrey Reports on the Panel on Forum State Limitations to Choice of Law in International Contracts

Séverine Menétrey (Université de Nice) has sent in the following report on the Commercial Arbitration panel at the Conference:



Enhancing Party Autonomy and the Limits thereto: Choice of Forum and Choice of Law in International Contracts
Chair: Karl-Heinz Böckstiegel
Panelists: Alex Mills and Jiri Valdhans

The aim of the panel was to identify the extent and possible limitations of the freedom of parties to an international contract to select the law governing their transaction. How do choice of forum agreements interact with the choice of applicable law?


Alex Mill (Lecturer in International Law, University of Cambridge) addressed the question of choice of law and its limits in a transnational context. The justification for party autonomy is individual freedom, but freedom is not the same when parties chose arbitration within a given national jurisdiction. While the freedom of choice of law is progressively won in international commercial relations, in some jurisdictions limitations to party autonomy or freedom persist. The parties may under certain conditions choose the law governing their contract, but the law has to be the law of a state. In that case, party autonomy is a limited choice: no law beyond the state even if there is a (r)evolution with European contract law. 

The choice of a non-state forum for arbitration remains very important since in such arbitration, party autonomy is upheld (except sometimes when the public interest is at stake). Escaping state law is possible through arbitration where the choice of non-state regulation (example, lex mercatoria and the UNIDROIT principles) is permitted. Private regulations and private mechanisms of dispute resolution co-exist with national laws and jurisdictions.

As it concerns the issue of enforcement, we know that arbitral awards based on UNIDROIT principles or on lex mercatoria are recognised all around the world by national jurisdictions. Though courts refuse to apply non-state regulation, they recognise awards based on private regulations. According to Alex Mill, this makes sense for political reasons and it is a first step in the direction of the recognition of a legal pluralism beyond the state.


Jiri Valdhans (Assistant Professor of Law, Masaryk University Brno, Czech Republic) addressed the same question of choice of law and its limits from the perspective of national law. He raised the question whether the international element is a legal ground for choice of law by the parties. Looking at Czech law, he noted that there is no definition of the international element. This situation has lead to a clash between two theories pertaining to the law chosen by the parties:


- party reference
- incorporation : chosen law is of contractual character.

This constitutes a problem because a Czech judge might have to apply foreign law ex officio and might have to find out the content of foreign law ex officio. Concerning the international element, he noted that the parties’ choice of foreign law only creates an artificial international element, as parties cannot in the first place chose any foreign law if there is no international element. He felt, therefore, that a presumption of conflict of laws is necessary for a choice of law by the parties.

Karl-Heinz Böckstiegel (Former President, Iran/US Claims Tribunal and the London Court of International Arbitration) brought a different perspective to the debate by referring to the facilities provided by arbitration. He referred to Article 4 of the ICSID Convention, Article 28 of the UNCITRAL Model Law, Article 35 of the UNCITRAL Arbitration Rules (new version released July 2010) and Article 17 of the ICC Arbitration Rules. All these provisions use the terms “rules of law designated by the parties”, that is to say not only national laws. He added that in arbitration, from a practical perspective, the issue of applicable law is not really a question, or is a question that remains relevant only in very limited respects (for example as it relates to prescription). He concluded that forum selection is very important for the parties: the extent and scope as to the choice of law depending on the forum chosen by the parties.

Séverine Menétrey

Open Working Session of the Working Group on Feminism and International Law

From the Editor

The Working Group on Feminism and International Law was one of the working groups of the ILA to hold an open working session at the conference. Annette Lansink (Rapporteur of the Working Group and Dean of the School of Law at the University of Venda, South Africa) had begun the session by introducing the purposes of the working group. The working group, while it acknowledges the insights of various feminist theories, is not concerned with the study of feminist theories and their influence in international law. Rather, its aim is to give women a voice within the law (taking into account the social and economic context), and to work towards transforming the law so that it can ensure substantive equality of women.

Unlike formal equality, which is concerned with the status of persons as equal bearers of rights, substantive equality - which forms the focus of the working group’s activities - requires the law to ensure “equality of outcome” in the treatment of men and women. Generally speaking, the work of the working group addresses the reality that international law is not a gender neutral system : that the lens though which the law is viewed is affected by the viewer’s preferences and prejudices, including gender (as well as national, geo-political, racial, ethnic and class) prejudices.


The main focus of the open session of the working group was the presentation and adoption of its final report on Women and Immigration. (See report on the ILA 2010 website).

Panel on The World Financial Crisis

From the Editor

The main focus of this highly insightful panel was identifying the nature and structure of regulatory frameworks that would be effective for averting or dealing with a financial crisis. Also discussed was an issue of specific relevance to lawyers: the complicity of the legal profession in the events leading up to the recent financial crisis and the role lawyers can play in averting a future crisis.

Panels on Intergrating Human Rights in Civil Cases

From the Editor

The two panels on integrating human rights in civil cases had examined the use of human rights norms in both national and international courts.

Piers Gardner (Monkton Chambers, London) had discussed the human rights of companies in the context of commercial disputes brought before the European Court of Human Rights (ECHR). Among the cases he looked at was the case brought by Yukos, the defunct Russian oil company, against the Russian Government before the ECHR.


Timothy Nelson (Counsel, Skadden Arps, New York) had focused on the use of human rights standards in international investment litigation. He had discussed cases brought before tribunals of the International Centre for the Settlement of Investment Disputes (ICSID) and the Southern African Development Community Tribunal, by Zimbabwean farmers deprived of their lands under the Zimbabwean Land Acquisition Act.

The International Criminal Court Panels

Is the ICC truly a court of last resort? Can peace and justice be simultaneously achieved at the ICC?


From the Editor

The first of the two conference panels on the ICC dealt with whether the ICC in practice (and as intended by the drafters of the Rome Statute) operates as a court of last resort - a court which complements rather than usurps the primary responsibility of States to prosecute international crimes.

John Dugard (Professor of Public International Law, Leiden University) had identified bases on which one could conclude that the Court is not operating in accordance with the complementarity principle. First, the existence of the ICC, he pointed out,  had not had the effect envisaged by the drafters. Instead of being an incentive for States to prosecute cases or risk having them taken over by the ICC, the tendency was that states were unwilling or unable to prosecute. The result was that the ICC has been left with no choice but to prosecute cases that should be handled by domestic courts. Second, the Court in a bid to justify its existence - inorder to “survive” - had assumed jurisdiction over situations which may not have been envisaged by the drafters. An example of this, he noted, was the recent electoral violence in Kenya, which the Court had assumed jurisdiction over by giving an expansive interpretation to the term “crimes against humanity” in the ICC Statute.

ILA 2010 OPENS ON AN INSPIRATIONAL NOTE From the Editor

The ILA 2010 conference has started off on an inspirational tone. The speakers at the formal opening panel had set out to emphasize the broader social context in which the conference is taking place and how this should shape one’s understanding of the goals of the conference.

As Eduardo Grebler, the outgoing president of the ILA pointed out, the meaning of the theme of the conference: De Iure Humanitatis (The Law of Humanity): Peace, Justice and International Law had to be understood against the background of the present state of international affairs, which he considered to have - frankly speaking - worsened since the last ILA conference in Rio in 2008.

From “Law of Nations” to Law for Humanity? : International Law, Peace and Justice for All

Introduction by the Blog Editor

International law is in a process of transformation which no one can ignore. Since its origins as law governing relations between sovereigns, international law has within the past few decades transformed itself into law governing relations between a wide variety of actors. Today, not only States but also individuals, corporations, inter-governmental organizations and non-governmental organizations are holders of rights and obligations under international law.

The various manifestations of this development, the problems it raises and most importantly, the opportunities it provides for promoting peace and justice within – and not just between - States form the subject of this year’s ILA Conference aptly titled De Iure Humanitatis: Peace, Justice and International law.