US conservative opposition to international law can best be summarized in the words of John Bolton, former ambassador to the UN:

It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so — because, over the long term, the goal of those who think that international law really means anything are those who want to constrain the United States.

Such a perspective may be based in part on a belief in US exceptionalism — the idea that peremptory norms do exist, but that they should not bind the US — which is inherently at odds with the rule of law.[2] (Yes, torture is absolutely wrong, but we are not prohibited from using it since we only do so for the right reasons.) Yet, such aversion to international law ignores the very real ways in which the existence of an international legal framework can advance the interests of states which adhere to it. Not only because, as Goldsmith and Posner argue, paying lip service to international legal norms may be a low-cost means of gaining considerable reputational benefits, but because the norms themselves can serve as a tool for expanding, rather than constraining, state power.

Joseph Nye, of Harvard’s John F. Kennedy School of Government, champions the idea that a country’s power is contingent not only on concrete indicators such as population size, GDP, or military strength, but also, to no small extent, on that intangible element of attraction — the ability to win other states’ cooperation through an appeal to shared values — which he terms “soft power”.[3] The importance of soft power, particularly for a country with such far-reaching global interests as the United States, cannot be overestimated. When the US asks China to relax its censorship laws to allow for the distribution of American movies, or asks Turkey to allow passage to US troops en route to Iraq, or asks Canada to acquiesce to new import duties on softwood lumber, the ability to persuade is often more important than the ability to coerce.

International relations no longer occur in the normative vacuum which existed 200 years ago. With the growth of international trade and communications technology, along with the proliferation of states and international organizations, relations between countries have increasingly become legalized through treaties and formal mechanisms of dispute resolution that permeate all spheres of interaction. Certain treaties, such as the Geneva Conventions and the UN Charter, establish normative frameworks that can claim near-universality, while the crystallization of jus cogens and customary law purports to exactly that. Within the last decade or so, international law has supplanted the philosophical debates and Cold War rhetoric that dominated the latter half of the 20th century, and has become not only the dominant, but in many respects the sole, discourse on inter-state normativity. The perceived legitimacy of the US’ wars in Iraq and Afghanistan, for instance, hinged not on politicians winning converts to the moral imperative of spreading democracy, but rather on lawyers’ persuasiveness in justifying military action on the basis of art. 51 of the UN Charter. In today’s world, soft power derives principally from states’ success at invoking international law in pursuit of their interests.

The formation of international legal norms is a process which itself reflects the balance of power, both hard and soft. While the principle of sovereign equality ostensibly grants all states an equal role in the development of international law, in practice some states exercise far more influence over the process than others. For instance, many areas of international law, such as jus in bello, were largely developed in the first half of the 20th century, when the number of states in existence was but a fraction of that which exist today; this means that much of the world, especially of the developing world, had little say in the development of such areas of law.

Another example of the uneven role of states in shaping international law can be seen in the last decade with the assertion of legislative competence by the UN Security Council under Chap. VII of the UN Charter, which gives an inordinate amount of power to the Permanent Five members. This was first seen in UNSC Resolution 1373, passed in a three-minute meeting two weeks after September 11, 2001, which effectively imposed anti-terrorism treaty obligations on all UN member states without their acquiescence.

As a final illustration of major powers’ influence in the formation of international law, a number of scholars have noted that jus cogens and customary law seem to reflect American legal culture to a far greater extent than that of other nations. For example, Alston and Simma observe that the rights enumerated in the US Bill of Rights are generally recognized as customary norms under international law (such as the right to due process), while many of the social rights provided for in the Universal Declaration of Human Rights (such as the right to free primary-school education) are not.[4]

Thus, not only is resort to shared legal norms an essential means of bolstering the US’ soft power, but the US has considerable ability to influence the development of such norms with a view to promoting its own interests (such as spreading democracy, or authorizing military intervention against dictatorial regimes). From a realist standpoint, it therefore makes a great deal of sense for the US to expand its cooperation and engagement with international institutions — perhaps even at the expense of some short-term interests — despite the blow that this would deal to US exceptionalism.

[1] Goldsmith, J. and Posner, E. The Limits of International Law (Oxford University Press, 2005).

[2] See Thimm, J. “American Exceptionalism: Conceptual Thoughts and Empirical Evidence” (Internationale Politik, 2007). <http://politikwissenschaft.tu-darmstadt.de/fileadmin/pg/Sektionstagung_IB/Thimm-American_exceptionalism.pdf>

[3] Nye, J.S., “The Benefits of Soft Power” (Harvard Business School Archive, Aug. 2, 2004). <http://hbswk.hbs.edu/archive/4290.html>

[4] Simma, B. and Alston, P. “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1988) 12 Aust. YBIL 82. <http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/ayil12&div=9&id=&page= >

Investor-state disputes present essentially a hybrid between public international law and traditional fields of private law, such as contract and property. Relationships between investors and sovereign states come into existence when two or more states agree to a bilateral (or multilateral) investment treaty (BIT), or the provisions which are normally included in a BIT form part of a free trade agreement (FTA). Chapter eleven of the North American Free Trade Agreement (NAFTA), for instance, contains the relevant provisions concerning investor-state disputes in the context of North American investors operating in another NAFTA state. [2] The provisions in NAFTA essentially allow an investor to sue a sovereign state through the International Centre for Settlement of Investment Disputes (ICSID), a branch of the World Bank based in Washington D.C., in the event that its property was expropriated. BITs are ostensibly beneficial to both investors and the signatory states. Investors gain from the legal certainty which the BIT provides in knowing that its property and investments will not be expropriated by the local government without fair compensation. Conversely, the state in which the investment is being made benefits from the influx of foreign direct investment (FDI), which is generally beneficial to its economy. Since the state must abide by the terms of the BIT however, many have criticised these treaties as an affront to national sovereignty.

The case of Pac Rim Cayman LLC v. The Republic of El Salvador involves a Canadian/American company (Pac Rim) in connection with its potential gold mining operations in El Salvador. [3] Pac Rim’s parent company is based in Vancouver, but the subsidiary involved in the dispute with El Salvador is incorporated in Nevada, thus rendering the Dominican Republic – Central America Free Trade Agreement (DR-CAFTA) applicable to the dispute. [4] Like NAFTA, DR-CAFTA requires disputes between investors and states to be resolved through ICSID-run arbitration. Pac Rim claims, inter alia, that it was induced by the El Salvadorian government to invest millions of dollars into exploratory costs for a potential gold mine to be developed in El Dorado, only to later be denied the requisite permits needed to exploit the site. The company also contends that the El Salvadorian government has given preferential treatment to local companies, thus violating substantive provisions of DR-CAFTA. For its part, the El Salvadorian government, as well as numerous civil society organizations supporting its cause, have cited uncertainties related to the company’s environmental impact assessment as the primary reason why permits have not been issued.

The Pac Rim case raises a number of interesting legal and policy issues which cannot entirely be addressed here. However, there are two overarching issues on which I would like to elaborate. The first resembles the question posed in takings (i.e. expropriation) cases in the domestic law context, namely, who should shoulder the loss when the government expropriates property from private individuals? The Fifth Amendment of the United States Constitution states that private property shall not be taken for public use without just compensation. [5] The Supreme Court of the United States has expanded the concept of a taking to include, in certain circumstances, government regulation which deprives owners of specific uses of their property. [6] Canada, on the other hand, has no explicit constitutional requirement for the state to compensate private individuals when property is expropriated. Despite the lack of a constitutional requirement however, the Canadian federal government usually provides compensation when property is expropriated. Is it desirable to have a requirement that the state compensate private individuals when its regulations deprive property owners of certain uses in their land? Or should the public good outweigh the private benefits conferred by property rights in certain circumstances? More importantly, how should these questions be answered in the international setting when foreign property holders are involved?

The second question which needs to be examined is whether investor-state arbitration is the most appropriate means to resolve disputes of this nature. Many of the arguments from groups which side with the El Salvadorian government seem to conflate the substance of the dispute with the arbitration process itself. [7] These criticisms seem to confuse the issue of who should win on the merits (Pac Rim or El Salvador) with whether investor state arbitration is the most appropriate means for resolving the dispute. As for the latter question, what alternatives exist outside of arbitration proceedings? Isn’t a forum where neutral decision-makers with no connection to the case the most appropriate means to resolve disputes of this nature? Without investor-state arbitration, would we return to situation where states would be required to practice self-help to advance economic objectives?

Investor-state arbitration is an emerging area which combines aspects of domestic and international law. The Pac Rim case highlights the complexities of the process, as well as difficulties which arise when political decisions conflict with legal obligations. The decision on the merits will likely be released within the next year; it will almost certainly contribute to the ongoing debate.

[1] Case concerning Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Rep 174.

[2] North American Free Trade Agreement Between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, Can TS 1994 No 2, 32 ILM 289 (entered into force 1 January 1994) [NAFTA].

[3] Pac Rim Cayman LLC v The Republic of El Salvador (ongoing), ICSID Case No ARB/09/12 (International Centre for Settlement of Investment Disputes).

[4] Dominican Republic – Central American Free Trade Agreement, 28 May 2004, 19 USC § 4011 (2005) [DR-CAFTA].

[5] US Const amend V.

[6] Lucas v South Carolina, 505 US 1003 (1992).

[7] See e.g. Katie Zaunbrecher, “Pac Rim Cayman v. Republic of El Salvador: Confronting Free Trade’s Chilling Effect on Environmental Progress in Latin America” [2010] 33:2 Hous J Int’l L 489; Krista Scheffey, Pac Rim v. El Salvador: the Perils of Free Trade in the Americas” Share the World’s Resources (16 August 2010), online: Share the World’s Resources <www.stwr.org>.

Il va sans dire que cet argument s’applique aux hommes d’État et leaders politiques. D’une part, la création de tribunaux spéciaux en ex-Yougoslavie (TPIY) et au Rwanda (TPIR) et les emprisonnements qui ont suivi ont contribué à miner la culture d’impunité qui régnait jadis chez certains hommes politiques assoiffés de pouvoir. D’autre part, comme l’ont démontré les succès électoraux de Vojislav Koštunica en Serbie et de Stjepan Mesic en Croatie lors des années 1990, il n’est désormais plus rentable sur les plans politique et économique d’être associé aux anciens leaders accusés ou condamnés pour crimes commis en temps de guerre[3]. En effet, malgré la pression de certaines franges endoctrinées souhaitant la réhabilitation d’anciens « héros » ultranationalistes, la crainte d’être isolé à l’échelle internationale suffit souvent à convaincre les leaders politiques de quitter les marges et de reconnaître la compétence des institutions judiciaires internationales telles que le TPIY et, plus récemment, la Cour pénale internationale (CPI).

Or, Akhavan ne limite pas son argument aux leaders politiques. Il prétend que même les seigneurs de guerre somaliens ou afghans ne peuvent plus être indifférents envers le lien entre l’acceptation internationale et leur survie[4]. Pourtant, l’isolation internationale et les représailles telles que la « guerre contre le terrorisme » ne semblent pas empêcher plusieurs seigneurs de guerre afghans d’agir en parfaite violation des principes les plus élémentaires du droit international. Au contraire, l’absence de justice pénale et les opérations militaires exécutées par l’OTAN semblent plutôt avoir pour effet d’exacerber les tensions et de motiver davantage les groupes terroristes et seigneurs de guerre dans leurs actions contre l’hégémonie occidentale.

Dans le même ordre d’idées, il semble également que le caractère « dissuasif » de la responsabilité criminelle individuelle soit inexorablement lié au degré de contrôle de l’État central. En effet, l’arrestation et la comparution des criminels de guerre se font beaucoup plus difficilement dans les pays où le contrôle de l’État central est affaibli, comme en Afghanistan, ou carrément inexistant, comme en Somalie. Dans ces pays, et dans plusieurs autres, de nombreux criminels de guerre pavoisent en toute impunité, à l’abri de la justice tant nationale qu’internationale. Pourtant, l’un des objectifs fixés par le Statut de Rome établissant la CPI est de suppléer les cours nationales lorsque celles-ci n’ont pas la volonté ou les ressources nécessaires pour poursuivre et juger les crimes les plus graves (art. 17)[5]. Il va donc sans dire que l’aspect « dissuasif » de la justice pénale internationale est beaucoup plus limité dans ces pays où la justice nationale est restreinte et où la justice internationale – qu’il s’agisse de tribunaux spéciaux ou de la CPI – est absente.

Finalement, une autre limite à l’argument de la « dissuasion » pourrait être soulevée : de nombreux pays refusent toujours de ratifier le Statut de Rome et d’ainsi reconnaître la compétence de la CPI. Parmi ceux-ci se trouvent des puissances internationales telles que les États-Unis, la Chine, la Russie et Israël. Malgré leur statut politico-économique, il devient plus difficile pour ces pays de se servir d’institutions judiciaires internationales pour inciter certains acteurs internationaux à respecter le droit international lorsqu’eux-mêmes refusent d’être soumis à la compétence de la plus importante cour de justice pénale internationale.

[2] Ibid., p. 12.

[3] Ibid., p. 14.

[4] Ibid., p. 12.

[5] Art. 17, Statut de Rome.

Borders are quite representative of the current state of international affairs: each state, as the supreme authority, decides who comes in and who gets to stay on its territory. Some countries are lucky, like Canada: being very attractive to most, Canada can pick and choose as it pleases. For immigrants, coming to Canada generally means an important improvement of living conditions and revenue. Thus, Canada has strict immigration policies that allow it to discriminate against immigrants that may not be as “desirable” for the Canadian society.

Now this raises the question: are borders and discriminatory immigration legitimate? Is it possible to administrate a country without borders? Does international equality require open borders? If a country suddenly changes its policy and opens its borders, will millions of people rush in?

The truth is that the world today is not equal, and there exist population migrations that are not necessarily two-ways. No matter which way it goes, inequalities between countries often also means inequalities between individuals belonging to those countries: a Westerner moving to a developing country does not do it in the same conditions as an individual leaving a developing country for a Western country would. Of course it depends on every situation. But if we look at the majority, immigrants in precarious situations very rarely come from Western countries; they usually want to get to Western countries.

Someone who immigrates with wealth is far less disposed to be in a precarious situation in his new country, thus far less disposed to require support from the state. Thus, rich states do not want poor immigrants, as politically incorrect as this may be. These inequalities are what make immigration laws necessary, for those who want to hold on to their social order as it is.

Some may wonder what would happen if a country opened its borders to all. In 2008, the new and progressive Ecuadorian Constitution recognised the principle of universal citizenship, hoping this policy would become part of the fight for equality between countries, especially between the North and the South[ii].

One could think that Ecuador being a developing country, it does not necessarily provide with the standard of living Canada would. Minimum wages are very low, finding a well-paying job is not all that easy. Neighbor countries do not have drastically different standards of living. One could thus conclude that the open-border policy would not change all that much.

But in fact it has. Ecuadorian authorities now have to deal with numerous refugee and human trafficking issues: Ecuador has become an open door to the American continent – more often than not to the US – for citizens from all over the globe[iii]. Ecuador is now the home of 53 342 refugees, more than any other Latin American country; in total 135 000 persons are in a situation of irregular immigration.

They are given a legal status if they are declared refugees; but the suddenness of the issue has not allowed the country to prepare those who work closely with the immigrants. The police generally does not know what to do with suspect foreigners without papers, and detention is a common solution. The whole process often takes months, during which the detention is not reviewed. The other ones will probably stay with no legal status, or go home.

In September 2010, Ecuador has changed its policy, stating that visas would be necessary for citizens of countries like Afghanistan, Bangladesh, Eritrea, Ethiopia, Kenya, Nepal, Nigeria, Pakistan and Somalia[iv]. The migration from these countries had significantly increased since 2008, and was linked to criminal organisations and illegal immigration to the US.

Even though they are not in fact overrepresented in jails (refugees who were detained for having committed crimes only represent 0.6 % of the total refugee population), the immigrants are seen as responsible for the rise of security issues in Ecuador, which has increased social tension and xenophobia. They increase the informal labour market, and their illegal status makes them very vulnerable to multiple types of abuse. The Ecuadorian government has not taken sufficient measures to ensure the protection of their human rights, and even though the constitution guarantees equality, they are discriminated against in most public services.

Ecuador is not the only state affected by their open-border policy: many immigrants aim at making their way up until the US. Some countries from Central America have thus complained about the open-borders policies in South America, as they also find themselves with numerous immigrants without legal status. Some continue their way to the US, but others decide to stop on the way. The governments then have to find ways to regularize their situation and support them, even if they have never officially let them in[v].

By opening its borders without being ready to welcome the immigrants, Ecuador has in fact opened the door to discrimination and poor living conditions for the most vulnerable populations. As long as fundamental inequalities remain, worldwide open borders seem quite unlikely to succeed.

[ii] « Propugna el principio de ciudadanía universal, la libre movilidad de todos los habitantes del planeta y el progresivo fin de la condición de extranjero como elemento transformador de las relaciones desiguales entre los países, especialmente Norte-Sur. » Section 416 (6). Electronic resource:

http://www.asambleanacional.gov.ec/documentos/Constitucion-2008.pdf

[iii] Opinion de Diario HOY, Correccion de la politica de fronteras abiertas, 9th September 2010. Electronic resource:

http://www.hoy.com.ec/noticias-ecuador/correccion-de-la-politica-de-fronteras-abiertas-429148.html

[iv] El Mercurio, Cancillería exige visa para gente proveniente de varios países, 7th September 2010. Electronic resource:

http://www.elmercurio.com.ec/250790-cancilleria-exige-visa-para-gente-proveniente-de-varios-paises.html

[v] La Estrella, Director de Migración reconoce preocupación por política de fronteras abiertas, 3rd of August 2011.

http://www.laestrella.com.pa/online/noticias/2011/08/03/director_de_migracion_reconoce_preocupacion_por_politica_de_fronteras_abiertas.asp

A Public Statement on the International Investment Regime, signed by a group of forty eight academics from around the world, has added, “We have a shared concern for the harm done to the public welfare by the international investment regime, as currently structured, especially its hampering of the ability of governments to act for their people in response to the concerns of human development and environmental sustainability”. [2] It argues, inter alia, that investment treaty arbitrations are unfair and unbalanced,[3] and that states should withdraw from investment treaties.[4] International investment law has even been described by a distinguished academic as “a law of greed”.[5]

Although perhaps somewhat exaggerated, these critiques are certainly not baseless. Several recent developments, most notably the disputes between tobacco giant Philip-Morris and the governments of Australia and Uruguay, indeed demonstrate how foreign investors can abuse the system of international investment law. But, as previously argued in this blog,[6] it could well be that these critics overlook the possibility that this system can also support sustainable development goals.

An alternative perspective of the ‘regulatory chill’

While the above mentioned critics often claim that investment treaty law restricts governments’ regulatory flexibility and their ability to adopt stricter environmental and social laws, it should be noted that similar ‘restrictions’ can also stop governments from reducing their standards on these very issues. For example, in recent investment arbitration a Canadian investor, who invested in an eco-tourism facility in Barbados, argued that Barbados authorities’ failure to enforce environmental laws and commitments, on which he legitimately relied, led to the pollution of his site.[7] The prospect of paying compensation in such cases can ‘chill’ governments’ will to  lower environmental standards, and thus support environmental objectives.

Similar claims can also be made with respect to climate change policies. Investment in low-carbon technologies, for example, often requires governmental support. This is partly due to market distortions like those resulting from high fossil fuels subsidies.[8] Another reason is the immature state of these technologies that often renders them unprofitable in strictly financial terms. Therefore, without state support many investors may choose other, more profitable alternatives. Indeed in order to promote climate-friendly investment, many states have adopted support schemes so as to cover the existing ‘gap’ between the public need for private investment in this field, and the current unprofitability of these technologies.

Investors rely on these governmental support schemes when deciding whether to invest in new low-carbon technologies. Governments’ ability to ‘fulfill their promises’ of support is therefore crucial for investors. When these promises are not kept after an initial heavy investment has been made, investors’ discontent can be understood. Even more troubling, at least from the public’s point of view, is that ‘un-kept promises’ can also discourage investors from making similar investments in the future.[9]

In light of the above, it can be argued that (to use the Guardian’s words) the existence of such a “legal weapon that gives corporations the edge on government”, may not necessarily be a bad thing. Having the option of claiming compensation in cases of governmental ‘betrayal’ can reduce the risks of relying on governmental promises, and encourage investors to invest in low-carbon technologies.

Recent developments:

Lately this present discussion has become a reality. On November 2011 a group of fourteen foreign investors filed a notice of arbitration against the Spanish government (based on the Energy Charter Treaty), following the latter’s substantive cuts in its feed-in tariffs (“FIT”) scheme. The cut in the FIT scheme was made due to the financial hardships Spain is currently facing.[10] The exact legal arguments raised by the foreign investors in this case are unknown to the author,[11] but a legal brief prepared by a certain leading law firm suggests that they may have relied on the “fair and equitable treatment” and “national treatment” standards of protection, as well as on the protection from expropriation, as stipulated by the Energy Charter Treaty.[12]

The Spanish example, however, reveals also the other side of this story. Spain is currently facing a difficult financial crisis. The solar industry, according to several publications, received 2.6 billion Euros in subsidies in 2010 alone,[13] and it is doubtful whether a state in such a condition should be forced to allocate these amounts to, of all things, renewable energy.

On the other hand, it is also discouraging that when facing financial difficulties, environmental causes are too often the first to be sacrificed. It can also be added that while Spain’s admittedly difficult financial situation should perhaps be considered when resolving this dispute, other, less ‘financially challenged’ states, like the UK, are making similar cuts.

In the author’s view, investment treaty law’s role in such cases is not necessarily negative. It provides assurances that in light of the low priority environmental considerations often receive, especially in times of financial turbulence, environmental ‘promises’ may still be respected. This is important for the prospect of green technologies, and for the future of our planet. This, however, is not to say that the system is flawless. Struggling states such as Spain should be allowed some flexibility when facing economic crises. And as demonstrated by several investment awards decided in the past against Argentina, it is possible that many investment treaties are simply not suitable for dealing with these situations. But, and this is important to remember, the arbitrations against Argentina and the mentioned case against Spain involve financial crises of historical proportions. This may not, usually, be the typical case in future claims.

Conclusion:

The prospects for the UN ‘green-economy’ vision depends on the successful fusion between private commercial interests and public environmental and social goals. Providing the private sector with the ability to efficiently claim compensation from states that do not live up to their environmental commitments, does not conflict with this vision. This is especially true in the case of low-carbon technologies, in which the private sector’s involvement is crucial.

Those criticizing the investment regime should continue to do so. This system, like many others, is not perfect. At the same time the benefits of this system should not be overlooked, especially when the voices calling for its revision grow ever-louder.

[2] Public Statement on the International Investment Regime, 31 August 2010, online: Osgood <http://www.osgoode.yorku.ca/public_statement/documents/Public%20Statement.pdf> [Public Statement].

[3] Public Statement, supra note 10 at para 8.  These critiques mostly claim that investment treaties represent only the commercial interests of foreign investors, and ignore public interests of states.

[4] Public Statement, supra note 10 at para 14.

[5] M. Sornarajah, ‘A Law for Need or a Law for Greed?: Restoring the Lost Law in the International

Law of Foreign Investment’, Int. Environ. Agreements 123 (2006): 329 [Sornarajah, ‘A Law for Need or a Law for Greed?] at 331.

[6] “Environmental exceptions in the future EU investment policy. Perhaps more than meets the eye?”, Legal Frontiers, June 10.

[7] Peter A. Allard v. The Government of Barbados, (Notice of Dispute) 8 September, 2009 online: Graemehall <http://graemehall.com/legal/papers/BIT-Complaint.pdf> [Allard].

[8] Ben Sills, “Fossil Fuel Subsidies Six Times More Than Renewable Energy”,  Bloomberg, 9 November 2011, online: Bloomberg <http://www.bloomberg.com/news/2011-11-09/fossil-fuels-got-more-aid-than-clean-energy-iea.html>.

[9] In a statement made by the UK Solar Trade Association following the U.K. government’s decision to modify its FIT scheme it was argued: “Such deep cuts to the tariff would kill the UK solar industry stone dead.” The UK Renewable Energy Association has added: “The renewables industry is really not confident at all. These changes undermine confidence across all energy-related investments, even CCS [carbon capture and storage] and nuclear, as we need to be confident that the government will honour their commitments and not chop and change.” See Uk Parliament Briefing Paper, Elena Ares, Oliver Hawkins and Paul Bolton, Science and Environmental Section, “Feed-in Tariffs: Solar PV”, online: UK Parliament <www.parliament.uk/briefing-papers/SN06112.pdf> at 14, and Damian Carrington, Feed-in tariff cuts ‘will kill solar industry stone dead’”, The Guardian, 31 October 2011, online: The Guardian <http://www.guardian.co.uk/environment/2011/oct/31/feed-in-tariff-cuts-industry>.

[10] Tim Webb, “Spain’s financial crisis claims another victim: the solar power industry” The Guardian, 30 March 2011, online: The Guardian <http://www.guardian.co.uk/world/2011/mar/30/new-europe-spain-solar-power>. Please note that other states, like the U.K., have also modified their FIT schemes for similar reasons. In the U.K. these measures were legally challenged (successfully, for the moment) by solar industry. See Energy Efficiency News, “High court rules UK government’s solar feed-in-tariff cuts are illegal”, 22 December, 2011, Energy Efficiency News, online: <http://www.energyefficiencynews.com/i/4745/>.

[11] To the best of the author’s knowledge, these have not been published yet.

[12] See a brief prepared by Freshfields Bruckhaus Deringer, “Tariff changes for photovoltaic solar power in Spain” March 2011, online: <http://www.freshfields.com/publications/pdfs/2011/mar11/29871.pdf>.

[13] Tim Webb, “Spain’s financial crisis claims another victim: the solar power industry” The Guardian, 30 March 2011, online: The Guardian <http://www.guardian.co.uk/world/2011/mar/30/new-europe-spain-solar-power>.

On November 30, the Montreal resident was finally removed from the United Nations Security Council 1267 List. The blacklist imposes an asset freeze, travel ban and arms embargo on alleged associates of Al Qaida and the Taliban.

But despite his new freedom, Abdelrazik’s fight is far from over.

Still outstanding are a $27-million lawsuit against the Canadian government, a constitutional challenge to the legislation implementing the 1267 list sanctions, and an apology from the Canadian government for its role in Abdelrazik’s almost decade-long saga that could have been written by Kafka.

Arriving in Canada as a refugee, Abdelrazik was given Canadian citizenship in 1995. He returned to Sudan, where he is a dual citizen, to visit his sick mother in 2003. There he was arrested, imprisoned, interrogated, and tortured. He was never charged with any crime and was eventually cleared by both the Sudanese government and Canada’s RCMP and CSIS of any criminal wrongdoing.

However the Canadian government refused to issue Abdelrazik a passport to return to Canada, using the 1267 List as an excuse. Abdelrazik’s name had been added to the list in 2006 at the request of the United States.

Abdelrazik spent the next 14 months sleeping on a cot in the Canadian embassy. Finally in 2009, Federal Court of Canada judge Russel Zinn ordered the Canadian government repatriate him immediately.  Zinn found Abdelrazik’s rights had been violated and that CSIS was complicit in his detention by Sudanese officials.

The government reluctantly obeyed, but imposed the asset freeze sanctions on Abdelrazik when he got back to Canada. Under the regime, he was unable to travel or apply for a job and simple tasks such as withdrawing money from the bank were laborious.

After CSIS and the RCMP cleared him of allegations of terrorism in 2007, the Canadian government applied to the UN to have Abdelrazik removed from the list but the request was denied.

When Abdelrazik applied again last January, the Canadian government refused to support him. However, the list’s new ombudsperson recommended he be delisted, which then received the necessary unanimous approval from the Security Council, the same group that adds people to the list in the first place.

The 1267 List has been widely criticized for its lack of transparency and oversight. Council of Europe Commissioner for Human Rights Thomas Hammarberg said, “Blacklisting’ is indeed a striking illustration of how human rights principles have been ignored in the fight against terrorism.”

There have been some improvements to the original regime including the right to appeal and the introduction of an ombudsperson.  The list however remains a secret list based on secret evidence.

In his judgment ordering Abdelrazik’s repatriation, Justice Zinn provided the following stinging criticism:

“I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or de-listing procedure that recognizes the principles of natural justice or that provides for basic procedural fairnesss …. It can hardly be said that the 1267 Committee process meets the requirement of independence and impartiality when, as appears may be the case involving Mr. Abdelrazik, the nation requesting the listing is one of the members of the body that decides whether to list or, equally as important, to de-list a person.  The accuser is also the judge.”

Abdelrazik’s lawyer, Paul Champ, compares the list to McCarthyism and notes there are many innocent people still on the list who haven’t benefited from Abdelrazik’s support network. He urged the international community to push for an abolishment of the blacklist.

At the same time, Abdelrazik is still waiting for his justice from the Canadian government.

“You abandoned me for seven years – and you caused me all this suffering,” he said after learning he was removed from the 1267 list.

“Now I am a free person. Not because of your support, but because of the support of Canadians,” he said, acknowledging the outpouring of support from people who have risked imprisonment to provide him financial assistance and who have lobbied and supported his struggle for justice.

The shameful actions of the Canadian government must be acknowledged by giving Abdelrazik at least the very basic things he is asking for and deserves: an apology, compensation, and the abolishment of the unjust regime that has caused him unthinkable suffering.

Les plaintes déposées à la CPI proviennent généralement d’États. L’avocat a ainsi présenté une plainte avec l’objectif que Luis Moreno Ocampo, le Procureur en chef de la CPI, ouvre une enquête selon son pouvoir discrétionnaire de le faire (art. 15 du Statut de Rome). Le Procureur devra donc évaluer le sérieux de la preuve, et s’il est d’avis qu’il dispose de bases raisonnables pour ouvrir l’enquête, il devra demander une autorisation de la Chambre préliminaire. Celle-ci se prononcera également sur la base raisonnable de la demande.

Les violations auxquelles il réfère sont traduites par Global Voices, un blogue francophone : « Nous réclamons que la Cour enquête sur les disparitions, le recrutement d’enfants de moins de 15 ans, sur les exécutions sommaires opérées par des soldats, sur la mutilation en tant que forme d’intimidation, sur les attaques perpétrées contre la population civile, sur les déplacements forcés, sur le viol des femmes et des filles, sur les actes de torture perpétrés et tolérés par l’Armée, sur les attaques ciblant les centres de désintoxication et sur l’enlèvement, la vente et l’asservissement des migrants par les autorités mexicaines des services de l’immigration. »

L’avocat souhaiterait que ces violations soient reconnues comme crimes de guerre ainsi que crimes contre l’humanité. La catégorisation de crimes de guerre est intéressante juridiquement, considérant que le Mexique n’apparait pas nécessairement comme un pays en proie à un conflit armé. Quoiqu’à l’heure de la « guerre internationale contre le terrorisme », pourquoi pas la guerre contre les cartels de la drogue ? C’est déjà plus limité géographiquement. Les cartels de la drogue seraient donc des groupes armés reconnus comme parties au conflit, quoiqu’ils n’aient aucune autre ambition que de poursuivre impunément leur trafic de stupéfiants? À premier abord, on pourrait penser qu’il s’agit plutôt de « law enforcement » que d’un conflit armé. Cela soulève des questions intéressantes.

La qualification de crimes contre l’humanité semble à première vue plus adéquate pour traiter de la question : les crimes doivent s’inscrire « dans le cadre d’une attaque généralisée ou systématique lancée contre toute population civile » (art 7 du Statut de Rome). Les crimes contre l’humanité semblent être plus précisément l’utilisation généralisée de torture, esclavage, disparitions forcées, meurtre, viol, esclavage sexuel et prostitution forcée; et ce dans le cadre de la lutte contre les narcotrafiquants.

La Cour suprême du Mexique a été sollicitée le 25 mai 2011 afin qu’elle use de son pouvoir d’enquête sur ces violations massives des droits de la personne, mais elle n’a encore pas pris position. Le Mexique n’a d’ailleurs pas adopté de loi pour mettre en œuvre le droit international contre les crimes de guerre et les crimes contre l’humanité. Netzai Sandoval fait également valoir que les organes judiciaires mexicains ne sont pas en mesure de juger ces violations, ceux-ci n’étant pas assez indépendants pour mener un véritable procès sur de hauts-fonctionnaires.

La plainte vise Felipe Calderón, le Président mexicain, ainsi que  Joaquín “El Chapo” Guzmán, l’homme le plus puissant des cartels de la drogue au Mexique, mais également le cabinet de sécurité fédéral ainsi que les cartels de la drogue eux-mêmes. Il s’agit ainsi d’un autre aspect intéressant : il s’attaque à un chef d’État au pouvoir actuellement, ce qui cause toujours beaucoup d’émoi, ainsi qu’à un des plus puissants membres du crime organisé au monde.

David contre Goliath?

To respond effectively to Austin and Henkin, it is necessary to consider not only whether international law is possessed of “teeth”, but also the extent to which these teeth operate consistently and independently of political intervention. I will focus here on what I consider to be the two most significant developments in international criminal law over the last two decades: the creation of the International Criminal Court (ICC) through the Rome Statute of 1999, and the rise and fall of the doctrine of universal jurisdiction across various national legal systems. In many respects, both appear to have been rather successful in promoting individual accountability. For the first time, there exists a permanent and independent entity at the global level capable of prosecuting individuals charged with grave violations of international humanitarian law. Similarly, at the national level, many individual states have begun asserting the authority to prosecute such violations that occurred outside their borders.

The ICC has many shortcomings, including the inability to exercise territorial jurisdiction in states which have not ratified the Rome Statute. This conceptually precludes the court from being truly “universal”, but it is a difficult obstacle to surmount due to the primacy of sovereign equality in our international legal order. Far more practical to address are the legislative measures taken by individual states with regard to universal jurisdiction, and the discrepancies between states’ pronouncements on the topic and their concrete actions.

By way of example, Canada prides itself on being the “first country to [have incorporated] the obligations of the Rome Statute into its national laws” through the Crimes Against Humanity and War Crimes Act of 2000.[3] This far-reaching piece of legislation actually goes beyond the scope of the Rome Statute in many respects, for example by incorporating elements of universal jurisdiction and retroactive applicability. Yet, despite having had numerous occasions to prosecute individuals for war crimes over the last decade – authorities just recently published the names of 30 alleged war criminals living in Canada[4] – only two prosecutions under the Act have been initiated.[5]

In a prominent ongoing case, accused Serbian war criminal Branko Rogan faces revocation of his Canadian citizenship and deportation rather than a trial,[6] even though the ostensible purpose of the Act is to enable war criminals to be brought to trial in Canada. Jillian Siskind, the president of Canadian Lawyers for International Human Rights, notes that Canada’s preference for deporting accused war criminals rather than prosecuting them means that such people will usually never face trial due to a lack of will or capacity in their home countries, and may in some cases face the risk of torture.[7] The reason war crimes cases are rarely tried domestically in Canada can be found in art. 9(3) of the Act, which requires “the personal consent in writing of the Attorney General or Deputy Attorney General” for a prosecution to commence. This requirement makes the process inherently political. War crimes trials are expensive and often politically inexpedient;[8] but should political expedience trump the pursuit of justice? Amnesty International argues that it should not. The organization is one of several to have presented credible arguments in favour of indicting George W. Bush for war crimes on his recent visit to Canada.[9] Regardless of its judicial merit, it is difficult to imagine many Canadian politicians – much less a Conservative cabinet member – signing off on such a move (and no less difficult to imagine a former US president standing trial in his own country on such charges).

Many countries which recognize the principle of universal jurisdiction impose political constraints similar to Canada’s on its invocation. During the 1990s, a number of European states implemented extremely broad legislation asserting universal jurisdiction over a wide range of crimes, while the subsequent decade saw these measures drastically scaled back.[10] The UK, which asserted universal jurisdiction over certain war crimes as early as 1988, recently amended its procedure to require applicants seeking an arrest warrant for such crimes to gain approval from the director of public prosecutions (a political appointee). This reform came in the wake of repeated attempts to indict Israeli military and political leaders in British courts, which the government deemed harmful to its foreign policy interests.[11]

Universal jurisdiction is even more politically constrained in the United States: expansive anti-terrorism statutes have allowed US courts to exercise universal jurisdiction over crimes committed by the governments of North Korea and Iran, but the same courts declined to pass judgment on alleged crimes committed by US-ally Israel in deference to the executive branch.[12]

Although the US, UK, and Israel have all invoked universal jurisdiction domestically,[13] it is perhaps a striking illustration of power politics that despite their high levels of belligerency nationals of those countries have never faced prosecution before foreign or international tribunals for war crimes. The US and Israel in particular have taken aggressive legislative and diplomatic measures to prevent the doctrine from being applied against their citizens.[14]

While recognizing that the efficient conduct of international relations likely necessitates some sort of barrier (along the lines of diplomatic immunity) to prevent citizens from spuriously enmeshing foreign officials in legal proceedings, serious reforms should be advocated to depoliticize international criminal law and thereby bolster its credibility. Legal norms for invoking universal jurisdiction should be standardized across states, and barriers to initiating proceedings should be strictly judicial in nature rather than overtly political. Measures such as these would restore faith in international law by further advancing the positive trend toward individual accountability while at the same time clearly conveying the message that the same standards apply to the powerful and weak alike.

[2] Ibid. at 3.

[3] Canada’s Crimes Against Humanity and War Crimes Act, Implementing the Rome Statute (Retrieved 24 October 2011), online: Foreign Affairs and International Trade Canada <http://www.international.gc.ca/court-cour/war-crimes-guerres.aspx?lang=eng&view=d>.

[4] Paola Loriggio, “Feds Ask for Public’s Help to Catch Alleged War Criminals in Canada Illegally” 680 News Radio (22 July 2011), online: 680news.com < http://www.680news.com/news/national/article/256714–feds-ask-for-public-s-help-to-catch-alleged-war-criminals-in-canada-illegally>.

[5] Successes, War Crimes (Retrieved 24 October 2011), online: Department of Justice Canada <http://www.justice.gc.ca/warcrimes-crimesdeguerre/successes-realisations-eng.asp>.

[6] Adrian Humphreys, “The Cost of Being Stripped of Citizenship” National Post (10 October 2011), online: nationalpost.com <http://news.nationalpost.com/2011/10/10/the-cost-of-being-stripped-of-citizenship/>.

[7] Catherine Solym, “A Presumption of Guilt” Montreal Gazette (26 November 2011), p. B1.

[8] The only war crimes trial to have been successfully concluded in Canada to date, that of Desire Munyaneza, cost an estimated $4 million.

[9] Olivia Ward, “Canada Urged to Arrest George W. Bush on B.C. Visit” Toronto Star (13 October 2011), online: thestar.com <http://www.thestar.com/news/article/1069594>.

[10] See e.g. “European States Confronted with Impunity: Report on Universal Jurisdiction in Europe” (Alkarama, 2010), online: scribd.com < http://www.scribd.com/doc/30232948/Report-on-Universal-Jurisdiction-April-2010-Alkarama>. Representative of this trend, Belgium for example implemented some of the most far-reaching legislation in 1993 but effectively repealed it 10 years later.

[11] Universal Jurisdiction, Ministry of Justice Press Release (15 September 2011), online: UK Ministry of Justice <http://www.justice.gov.uk/news/press-releases/moj/pressrelease150911a.htm>.

[12] Daniel Haboucha, “Waging Lawfare” Canadian Lawyer Magazine (1 November 2011), online: canadianlawyermag.com < http://www.canadianlawyermag.com/Waging-lawfare.html>.

[13] The US and UK as discussed above, and Israel in its 1961 prosecution of Adolf Eichmann.

[14] See e.g. the American Servicemembers’ Protection Act, described by various NGOs as “anti-ICC legislation”, discussed in Sean D. Murphy, Principles of International Law (Thomson West, 2006) at 428.