The Casebook - Chapter 7

Transcription

VII. GLOBAL DIMENSIONS OF DEMOCRACY VII.A Promoting Democracy and Human Rights Globally VII.A.1 Explaining the Globalization of Democracy: Democracy and
the Diffusion of Markets Ingo Venzke 1. Introduction: Three Dimensions of the Globalization of
Democracy ............................................................................................... 11 2. Globalization and Domestic Democratic Governance ..................... 12 3. Globalization and the Democratic Justification of International
Public Authority ...................................................................................... 14 4. Globalization and the Spread of Democracy ...................................... 15 5. Concluding Observations ....................................................................... 19 6. References and Further Resources........................................................ 20 VII.A.2 The EU’s Enlargement Policy and the Promotion of
Democracy: The Case of Turkey Valentina Volpe 1. Background ............................................................................................... 22 2. Materials .................................................................................................... 24 3. Analysis: Fulfilling the Copenhagen Political Criteria: the
Turkey 2010 Progress Report................................................................ 25 4. Issues: An Additional Enforcement Mechanism: EU Political
Conditionality Implementing Council of Europe Democracy
Standards .................................................................................................. 28 5. Further Reading ....................................................................................... 31 2
GLOBAL ADMINISTRATIVE LAW: THE CASEBOOK
VII.A.3 The UN Fund on Democracy and the European Instrument
for Democracy and Human Rights: Causality or
Convergence? Bruno Carotti 1. 2. 3. 4. 5. Background ............................................................................................... 33 Materials .................................................................................................... 35 Analysis ...................................................................................................... 35 Issues.......................................................................................................... 38 Further Reading ....................................................................................... 41 VII.A.4 The OAS: Legalizing Norms of Democracy Giacomo Delledonne 1. 2. 3. 4. 5. 6. Background ............................................................................................... 43 Materials and Sources .............................................................................. 44 Analysis ...................................................................................................... 45 Promoting Democracy in the Americas: A Difficult Balance .......... 47 Similar Cases ............................................................................................. 48 Further Reading ....................................................................................... 48 VII.A.5 Foreign Aid and Democratization: The Case of Zambia Giulia Bertezzolo 1. 2. 3. 4. Background ............................................................................................... 50 Materials .................................................................................................... 52 Analysis ...................................................................................................... 53 Issues: Can Participation Be an Instrument of
Democratization? .................................................................................... 54 5. Further Reading ....................................................................................... 55 VII.A.6 Guaranteeing Electoral Democratic Standards: The Venice
Commission and “The Code of Good Practice in Electoral
Matters” Valentina Volpe 1. Background ............................................................................................... 57 VII. GLOBAL DIMENSIONS OF DEMOCRACY
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2. Materials .................................................................................................... 59 3. Analysis ...................................................................................................... 60 4. Issues: The Delicate Role of Global Technical Bodies in Setting
National Democratic Standards: the Venice Commission
between Téchne and Politeia ................................................................. 63 5. Further Reading ....................................................................................... 66 VII.A.7 Democracy and Human Rights: Reciprocally Fostering
and/or Restraining Concepts? Marco Pacini 1. 2. 3. 4. 5. Background ............................................................................................... 68 Materials and Sources .............................................................................. 69 Analysis ...................................................................................................... 70 Issues: Is There a Supranational Concept of Democracy? ................ 71 Further Reading ....................................................................................... 73 VII.A.8 UN Transitional Administrations: Kosovo, East Timor and
Iraq Elisabetta Morlino 1. Background ............................................................................................... 74 2. Materials: Norms and Relevant Documents ....................................... 78 3. Analysis ...................................................................................................... 82 3.1. The Convergence of Legislative, Administrative and Judicial Powers .... 82 3.2. Immunity ........................................................................................................... 88 4. Issues: Accountability of UN Interim Administrations ..................... 92 5. Further Reading ..................................................................................... 101 VII.A.9 C had - Petroleum Development and Pipeline Project: Human
Rights and the World Bank Mariarita Circi 1. Background ............................................................................................. 103 2. Materials and Sources ............................................................................ 103 3. Analysis .................................................................................................... 104 4
4. Issues: The “Step-by-Step” Approach to Human Rights
Implementation ..................................................................................... 105 5. Further Reading ..................................................................................... 106 VII.A.10 Thinking Human Rights Globally: The Ken SaroWiwa Case Emanuela Cocco 1. 2. 3. 4. 5. Background ............................................................................................. 108 Materials and Sources ............................................................................ 109 Analysis .................................................................................................... 111 Issues: Global Protection for Corporate Human Rights Abuse .... 113 Further Reading ..................................................................................... 115 VII.A.11 Socio-Economic Human Rights, National Constitutions and
National Courts: The Mazibuko Case Mariarita Circi 1. 2. 3. 4. Background ............................................................................................. 117 Materials and Sources ............................................................................ 118 Analysis .................................................................................................... 118 Issues: Socio-Economic Rights Implementation and Budgetary
Considerations ....................................................................................... 119 5. Further Reading ..................................................................................... 120 VII.B. Civil Society and Multinational Corporations VII.B.1 The United Nations Global Compact Yoav Meer 1. Background ............................................................................................. 121 2. Materials and Sources ............................................................................ 124 3. Analysis and Issues: The UN-ICC Partnership, Stakeholder
Compliance, and The GC’s Impact.................................................... 125 4. Further Reading ..................................................................................... 129 VII. GLOBAL DIMENSIONS OF DEMOCRACY
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VII.B.2 OECD Guidelines for Multinational Enterprises: The Aker
Kvaerner Case – Corporate Social Responsibility and Human
Rights at Guantanamo Bay Matthias Goldmann 1. 2. 3. 4. Background ............................................................................................. 131 Materials and Sources ............................................................................ 133 Analysis .................................................................................................... 133 Issues: Soft Horizontal Human Rights Obligations and Their
Limits ...................................................................................................... 134 5. Further Reading ..................................................................................... 135 VII.B.3 The Equator Principles: Voluntary Standards in Project
Financing Yoav Meer 1. Background ............................................................................................. 137 2. Materials and Sources ............................................................................ 140 3. Analysis and Issues: The Creation and Operation of a
Regulatory Instrument through a Public-Private Partnership ........ 141 4. Further Reading ..................................................................................... 148 VII.B.4 Does Civil Society Promote Democracy? The Arab Spring and
the EU’s “New Response to a Changing Neighbourhood” Valentina Volpe 1. 2. 3. 4. Background ............................................................................................. 149 Materials .................................................................................................. 150 Analysis .................................................................................................... 151 Issues: The Problematic “Mantra” of Civil Society Promoting
Democracy ............................................................................................. 154 5. Further Reading ..................................................................................... 156 6
VII.C. Media VII.C.1 WikiLeaks, Global Security and Democratic Control Edoardo Chiti 1. 2. 3. 4. Background ............................................................................................. 158 Materials .................................................................................................. 159 Analysis .................................................................................................... 159 Issues: Democratic Control and Executive Secrecy in the
Global Legal Space ............................................................................... 161 5. Further Reading ..................................................................................... 162 VII.C.2 The Google China Case Bruno Carotti 1. 2. 3. 4. 5. Background ............................................................................................. 163 Materials .................................................................................................. 164 Analysis .................................................................................................... 165 Issues........................................................................................................ 166 Further Reading ..................................................................................... 167 VII.C.3 Google Books: Copyright Law or Public Interest? Bruno Carotti 1. 2. 3. 4. 5. Background ............................................................................................. 168 Materials .................................................................................................. 169 Analysis .................................................................................................... 170 Accessibility: Towards the Public Interest ......................................... 172 Further Reading ..................................................................................... 175 VII.C.4 The Google – Vivi Down Case: Providers’ Responsibility,
Privacy and Internet Freedom Bruno Carotti 1. Background ............................................................................................. 177 VII. GLOBAL DIMENSIONS OF DEMOCRACY
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2. Materials .................................................................................................. 178 3. Analysis .................................................................................................... 178 4. Content Control and Freedom of Expression: the Quest for a
Balance .................................................................................................... 181 5. Further Reading ..................................................................................... 183 VII.C.5 Global Interactions: SpotCloud, a Market for Computing
Power Tomasz Koziel 1. 2. 3. 4. Background ............................................................................................. 184 Materials .................................................................................................. 185 Analysis .................................................................................................... 185 Issues: Navigating Law in the Cloud: Between Privacy and
Jurisdictional Questions ....................................................................... 186 5. Further Reading ..................................................................................... 187 VII.D Global Security VII.D.1 The Regulation of Global Security Operations: The Case of
the European Union’s Operation Artemis Edoardo Chiti 1. 2. 3. 4. 5. 6. Background ............................................................................................. 189 Materials and Sources ............................................................................ 190 Analysis .................................................................................................... 192 Issues: Transnational v. National Administrative Law .................... 193 Similar Cases ........................................................................................... 194 Further Reading ..................................................................................... 194 8
VII.D.2 Unilateral and Universalist Pressures, and the Limits of
Global Security: The United Nations, the Occupying
Countries, and the Reconstruction of Iraq Edoardo Chiti 1. 2. 3. 4. Background ............................................................................................. 196 Materials .................................................................................................. 197 Analysis .................................................................................................... 199 Issues: Unilateral and Universalist Pressures, and the Limits of
Global Security ...................................................................................... 200 5. Similar Cases ........................................................................................... 200 6. Further Reading ..................................................................................... 201 VII.D.3 Responsibility to Protect, Military Intervention and
Assistance in Rebuilding: The UN and the Libyan Crisis Edoardo Chiti 1. 2. 3. 4. Background ............................................................................................. 202 Materials .................................................................................................. 203 Analysis .................................................................................................... 204 Issues: The Legal Foundation of Military Intervention, and the
Limits of Assistance in Rebuilding ..................................................... 205 5. Similar Cases ........................................................................................... 206 6. Further Reading ..................................................................................... 206 VII.D.4 The Composite Regulation of Global Security Operations:
The Case of the European Union’s Operation Atalanta Edoardo Chiti 1. 2. 3. 4. Background ............................................................................................. 207 Materials .................................................................................................. 208 Analysis .................................................................................................... 211 Issues: The Regulation of Operation Atalanta between
Traditional Public International Law and Global
Administrative Law ............................................................................... 213 5. Similar Cases ........................................................................................... 214 6. Further Reading ..................................................................................... 214 VII. GLOBAL DIMENSIONS OF DEMOCRACY
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VII.D.5 Human Rights and Terrorism: The Use of Passenger Name
Records Maria Tzanou 1. Background: EU Airlines between a Rock and a Hard Place ......... 215 2. Materials .................................................................................................. 216 3. Analysis .................................................................................................... 218 3.1. The ECJ PNR judgment and the 2006 Interim PNR Agreement ..........218 3.2. The 2007 PNR Agreement ...........................................................................220 4. Issues........................................................................................................ 221 5. Further Reading ..................................................................................... 222 VII.D.6 Privacy and EU Counter-Terrorism Policy (European Data
Protection Supervisor Opinion no. 2011/C 56/02) Patrizio Rubechini 1. 2. 3. 4. Background ............................................................................................. 224 Materials .................................................................................................. 225 Analysis .................................................................................................... 226 Issues: The “Equilibrium” Between Security and Personal Data
Protection – “Ad Impossibilia Nemo Tenetur” (excepting the
EU)? ........................................................................................................ 228 5. Further Reading ..................................................................................... 230 VII.D.7 The Use of Financial Data to Fight Terrorism: The SWIFT
Case Maria Tzanou 1. 2. 3. 4. 5. Background: The ‘secret’ operations .................................................. 232 Materials .................................................................................................. 234 Analysis .................................................................................................... 238 Issues........................................................................................................ 239 Further Reading ..................................................................................... 241 10
VIII.D.8 An Indirect Challenge to the Security Council: Abdelrazik v.
Canada (Minister of Foreign Affairs) Abigail C. Deshman 1. 2. 3. 4. Background ............................................................................................. 242 Materials and Links ................................................................................ 244 Analysis .................................................................................................... 247 Issues: Inter-institutional GAL criticism and the emergence of
horizontal review ................................................................................... 250 5. Further Reading ..................................................................................... 252 VII. GLOBAL DIMENSIONS OF DEMOCRACY
VII.A Promoting Democracy and Human Rights Globally
VII.A.1 Explaining the Globalization of Democracy: Democracy and the
Diffusion of Markets
Ingo Venzke
1. Introduction: Three Dimensions of the Globalization of Democracy
Processes of globalization have affected the conditions and possibilities of
democratic governance, as well as our understanding of the very concept of
democracy itself. It may be helpful to distinguish three dimensions in this regard.
First, globalization and the diffusion of markets have challenged the capacities of
citizens within any single state to determine their own circumstances and fate
independently from others. Economic developments outpace changes in political
structures of governance while many layers of interdependence constrain any
individual state’s room for manoeuver. This affects democracy at the national
level. Second, processes of globalization have contributed to an increasing use of
international law and to the increasing authority of international institutions. This
again bears on the possibilities of democratic governance, and, indeed, on the
very concept of governance. Third, democracy has spread globally. In spite of all
difficulties, pitfalls and drawbacks, more and more states now boast democratic
forms of governance. While the precise relationship remains contested, processes
of democratization coincide with processes of economic liberalization.
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There are common underlying threads, or at least questions, that are visible
in these developments along all three dimensions of the globalization of
democracy: how do political processes respond to economic globalization? How
do they take up globalization’s normative challenge, and how does globalization
affect the conditions for, and the very concept of, democracy? The following
three sections will sketch answers to these questions. At all time this will imply
both an analytical as well as normative perspective. The following discussion
largely suggests that economic processes move ahead while political institutions
lag behind and adapt. While this is generally correct, it should be clear that
developments of political processes are also contingent on other factors, and in
no way do they follow a steady pattern. The direction of causality between
economic liberalization and democratization is not fixed either. Finally, both
economic liberalism and the idea of democracy certainly remain contested – for
both good and bad reasons.
2. Globalization and Domestic Democratic Governance
Processes of globalization affect the conditions of possibility of democratic
governance at the level of any single state. Because the concept of democracy is
so closely tied to the state, it is also in this context that challenges to and
developments of the very concept of democracy find their first clear expression.
In brief, the age of enlightenment (re-)introduced into political philosophy
the thought that citizens or people are the root of all legitimate authority – the
kernel of democracy. While the English and French revolutions turned this
thought into practice at the end of the 18th century, it remained imperfect and
opposed as an idea. But the fundamental thought has remained and transitionally
expressed itself in a claim to independence from outside interference (from the
church, the emperor, or from any colonial power). The notion of state
sovereignty translated this claim to independence into legal doctrine, but
bracketed the critical question of who was sovereign internally, the ruling person
or the people. With the first wave of democracy in North America and Western
Europe, citizens could at last make a categorical claim to self-government. While
there may be practical and legal constraints, the idea is that citizens of a
democratic polity are the only and exclusive source of legitimate authority. In any
single state, the argument goes, citizens form a society that provides the necessary
conditions, like a certain degree of social justice and solidarity, for meaningful
democratic processes. Participation in such processes has the recursive effect of
reinforcing the necessary conditions for these processes themselves to be
normatively meaningful. While any further account of a theory of national
VII. GLOBAL DIMENSIONS OF DEMOCRACY
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democracy certainly requires more nuance and is bound to run into protracted
controversies, the plain proposition is that citizens can and do claim an ultimate
say with regard to the way they are governed.
Processes of globalization and the diffusion of markets have undermined,
or at least challenged, this proposition. The challenges relate to the capacities of
individual states, to the impact of their decisions on others and to the sociological
conditions for meaningful democratic governance.
With regard to capacities, what has probably always been the case, except
for the most powerful states, is now plainly evident: the decision-making of any
individual state is situated in a world that is populated with other states and
therefore subject to constraints. There are legal constraints as well as more
fundamental structural constraints, which have widened and hardened with
processes of globalization and increasing interdependence. The intensifying
international repercussions of any number of domestic decisions are ever more
tangible – the division between domestic and foreign policy is crumbling.
Domestic regulations with regard to environmental protection or food safety are
almost certain to have an impact on trade or on the investments of foreigners.
Domestic regulation in such fields is certainly not impossible, nor is it in principle
illegal, but it does come with strings attached. Globalization has brought with it a
higher level of interdependence. At the same time, it is evident that certain policy
aims, such as dealing with a wide range of global challenges, can only be pursued
as part of a concerted effort. In general, the mobility of capital and factors of
production contribute to collective action problems, requiring co-ordination as
well as cooperation, and, in short, decrease the capacity of the citizens of any
individual state to independently determine their own circumstances and fate.
The flipside is that decisions taken within any single polity have an
increasingly significant effect on individuals outside that polity. It has always been
the case that, for instance, one state’s decision to build a dam on a river impacts
on the agricultural production and industry of all downstream states. Processes of
globalization have made more likely constellations in which the actions one of
one State impact others – for example, bad financial regulation or fiscal policy
within one country can induce unemployment in another, or even cause a global
crisis. From the perspective of democratic governance, at least if one considers
that those who are affected by a decision should have a say in its making, this
appears problematic.
A final challenge to the idea of the state as a kind of self-contained site of
democratic governance relates to the sociological conditions, such as a certain
degree of social justice and solidarity, that make democratic processes
normatively meaningful. The impact of globalization on these conditions is
controversial and differs across countries. It appears safe to say, however, that
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processes of economic globalization and market liberalism have had some part in
increasing disparities of wealth and income within states and, linking up with
decreasing capacities of action, have tested the functioning of welfare states.
While international economic liberalization suggests mutual gains for all
participating states, the aggregate gains are distributed unevenly internally and
usually result in losses for some. Here lies a challenge, but also the recognition
that the state remains an agent of distributive justice as well as a guarantor of
basic social needs.
3. Globalization and the Democratic Justification of International Public Authority
International institutions constrain decision-making at the domestic level. But it
would be wrong to see this as inherently problematic. Some have suggested that
international constraints on national democracies are ipso facto undemocratic. In
view of the considerations outlined above, this seems unconvincing. International
institutions rather offer responses to the challenges faced by domestic democratic
governance. While states can use international institutions to extend the reach of
their policies beyond national borders, they also agree to subject their individual
exercises of authority to international rules and procedures. Furthermore, in a
concerted fashion, states co-operate and coordinate with each other in order to
tackle global challenges that none could deal with alone. Finally, international
institutions may even improve the quality of processes of domestic governance.
Rather than a curse, they are part of the cure.
With any solution there come new problems. International institutions are
not only arenas in which state representatives interact, but also actors in their
own right. That international institutions have agency – in the sense of possessing
the qualities and attributes of independent actors – is almost inevitable. They
enjoy delegated authority and can draw on their own sources of authority such as
expertise, the appearance of rational administration, or appeals to moral
dispositions. One element of globalization is that international institutions have
become more powerful actors. The International Monetary Fund (IMF) and the
World Bank (WB) serve as examples, as does the World Trade Organization
(WTO). These institutions exercise international public authority – they condition
states and individuals directly or indirectly in the exercise of their freedom and
influence the possibilities of democratic governance at the domestic level. While
they are, as argued above, part of the cure, their exercise of international public
authority again requires democratic justification.
This indicates another manner in which processes of globalization
influence the very concept of democracy. Suggesting that the exercise of
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international public authority be democratically justified supposes that
democratic legitimacy can accrue from processes that transcend national borders
and go beyond any individual state. This assumption is still contested, both on
principled and empirical grounds: that only a “people” can produce democratic
legitimacy, and that only states can provide the social conditions necessary for
meaningful democratic processes. Years of learning within the European Union,
together with developments in democratic theory, strongly suggest that the
conceptual link between democracy and the nation-state can be loosened;
especially if one adopts an individual rather than holistic understanding of
democratic legitimation that places the citizen rather than the people at its center
(see, in particular, Habermas 2006). It is now a compelling view that governments
in the European Council represent the voice of their respective citizens, while the
European Parliament represents the voice of those same individuals as European
citizens. On any account, it is now hard to deny that the European Parliament –
which neither forms part of a state nor represents a European people –
contributes to democratic governance in Europe. Even if, however, the
conceptual challenge has been resolved, or nearly so, the empirical question
concerning social preconditions for meaningful democratic processes remains –
for the exercise of international public authority even more so than in the
European context.
Much research remains to be done with regard to identifying problems in
the exercise of public authority by international institutions. This is, after all, one
of the main ambitions of global administrative law: reacting to accountabilities
gaps in ways that also satisfy standards of democratic legitimation. One of the
persistent critiques of this ambition has been that it projects democratic ideas
onto the international level that are not at all shared across the board
domestically. A lack of democratic governance at the domestic level attenuates
international democratic justifications. This leads to a third dimension in which
globalization impacts upon democracy.
4. Globalization and the Spread of Democracy
Apart from changing the constellation of democratic governance within any
single state and influencing the emergence of international institutions, processes
of globalization have been a contributing factor in the spread of democratic
forms of domestic governance. At the outset of this section, it should be noted
that, in spite of all difficulties and setbacks, the overall trajectory of democratic
governance on the global level has been a positive one. Economic and political
liberalization have been defining features of the past two decades, even although
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at the moment more than 50 autocratic regimes continue to cling to power, even
although civil liberties and social justice suffer in otherwise consolidated
democracies, and even although populism and various forms of fundamentalism
remain unrelenting foes of the democratic project. It might again be helpful to
identify a number of interrelated but distinct ways in which globalization and
democratization might be linked in this third dimension relating to the
promotion and spread of democracy.
First of all, there is a traditionally strong argument that understands
democratic governance as a function of economic development. As early as 1959,
Seymour Martin Lipset argued that democracy follows economic growth and
wealth. Democratic reforms come on the heels of economic change. While there
might be some plausibility to this view, it has been challenged both empirically
and in principle. Ever since the argument was made, processes of
democratization have offered little evidence in support of it. Conversely,
however, policies aimed at development promotion have testified to the
importance of democratic governance structures. Armataya Sen, among others,
has provided the counterpoint by arguing that democracy is conducive to
economic development. Development aid should seek to create and sustain
political freedom and mechanisms of self-government. The link between
globalization and democratization is certainly more complex than any linear
relation would suggest.
Other elements of the explanation of the spread of democracy may be
summarized in terms of the main actors, the main mechanisms, and the main
structural causes involved. The first of these speaks to the impact of international
organizations, other governments, international non-governmental actors, and
domestic constituencies in driving reform. Mechanisms at work may include
coercion, competition, learning as well as emulation (Simmons et al. 2008), while
structural causes might, apart from economic developments, include regional
integration, technological improvements and demographic shifts. In what
follows, I will give a brief overview of these factors.
For a long time, international institutions were reluctant to embrace
democracy promotion as one of their tasks; and nor were they normally charged
with such a mandate by their constituents. The Charter of the United Nations
speaks of fundamental human rights, but not of democracy. The Charter is
bound to the tradition of an international order based on state sovereignty which
views questions of governance as part of the “internal affairs” (or “domestic
jurisdiction”, Art. 2.7 UNC) of its members. The International Bank for
Reconstruction and Development (IBRD) is explicitly prohibited from
interfering in the political affairs of any member. Nor is the Bank to be
influenced in its decisions by the political character of any member (Art. IV,
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section 10, IBRD Articles of Agreement). This stance has changed remarkably
since the 1990s. At that time, the World Bank (WB), the umbrella group that
includes the IBRD, coined the notion of “good governance” in order to
circumvent its own – rather clear – statutory limitations, thus broadening its
scope of action to include issues of domestic governance in its development
strategy. Both the IMF and the WB have since frequently made the provision of
their services conditional upon requirements ranging from combating corruption
to more controversial issues of implementing austerity, privatization, and
administrative reform programmes.
For the United Nations generally, the 1991 coup d’état in Haiti, which ousted
elected president Jean-Bertrand Aristide, provoked a series of relatively strong
reactions. The General Assembly stated that, “[g]iven the importance of support
from the international community for the development of democracy in Haiti”,
the legitimate authority should be restored in the country. This pattern has
repeated itself in other circumstances. It is both noteworthy and exemplary that
the United Nations Development Program (UNDP) has since the 1990s
significantly strengthened its focus on domestic political institutions as part of its
development agenda, and now works towards improving democratic governance.
Election monitoring has become commonplace under the auspices of the United
Nations and other organizations (see § VII.A.3 “The UN Fund on Democracy
and the European Instrument for Democracy and Human Rights: Causality or
Convergence?” by B. Carotti). Examples of democracy promotion abound at the
global level. It was also precisely in view of the reactions to the coup in Haiti that
Thomas Frank wrote his famous article in 1992 on “The Emerging Right to
Democratic Governance”.
Regional organizations have been more outspoken and demanding with
regard to democratic governance. The Conference (now Organization) for
Security and Cooperation in Europe was an important forerunner even during
the Cold War. Membership in the European Union is now clearly conditioned on
the requirement that states be democratic (see § VII.A.2 “The EU’s Enlargement
Policy and the Promotion of Democracy: The Case of Turkey” by V. Volpe). The
appeal of membership has contributed to transformations in East and South-East
Europe, helping to consolidate democratic institutions in new member states.
Even earlier, democracy began spreading through Latin America in the 1970s,
facilitated by the Organization of American States (OAS) (see § V.7 “The OAS
and the Inter-American Court of Human Rights: A Human Rights’ Framework
for the Americas” by B. Bonafini and § VII.A.4 “The OAS: Legalizing Norms of
Democracy” by G. Delledonne) whose statute provides that “representative
democracy is an indispensable condition for the stability, peace and development
of the region”. In 1991, the OAS called on its members to impose sanctions
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against Haiti in order to isolate the illegal rulers. Similar practices can be found,
albeit usually less lucid and with less bite, in other regional bodies like the African
Union or the Association of South-East Asian Nations.
Some regional organizations, and the EU stands out in this regard, engage
in active democracy promotion not only by way of holding out the carrot of
membership, but also by other mechanisms as part of their external policy. Trade
concessions and developmental aid might be linked to democratic performance;
and, within the framework of the European Neighbourhood Policy, the EU
works towards improving the levels of economic development and democratic
governance of its eastern and southern neighbors.
Democracy promotion has generally been advanced as a goal of foreign
policy. It may form part of developmental policies and has, as of late, in some
instances been subsumed within broader security strategies. The “securitization”
of democracy promotion is a Janus-faced development. Understanding the
promotion of democracy as part of a struggle for a more secure and peaceful
world may elevate its importance in the eyes of policymakers, and can improve
access to much-needed resources. Striving for a “democratic peace” has of
course been a lasting liberal credo. But subsuming democracy promotion under a
broader security paradigm might lead to a recalibration of policy preferences in a
way that can support the conclusion that less democracy is better (long-time
support for ruthless dictators has been a common feature of many (democratic)
states’ foreign policies). It may also tarnish democracy promotion by attaching it
to obviously strategic ends. The 2003 intervention in Iraq, saturated in the
rhetoric of bringing democracy to the Middle East, has probably done a
disservice to democracy promotion in general.
Finally, the work of many non-governmental organizations deserves
mention. The range of such bodies is enormous, encompassing relatively wellfunded organizations acting globally as well as struggling grass-root projects
(which might, within the context of their limited reach, be no less successful).
Sometimes they focus on a particular element of good (democratic) governance,
as in the case of Transparency International, for example; or they can contribute
to capacity building more generally.
With regard to the possible mechanisms at work in democracy promotion,
forceful military intervention, regime change by way of occupation and forms of
territorial administration are among the most coercive. IMF and WB
conditionality, linking unilateral development aid to good governance standards
or respect for human rights, and holding up the appeal of membership in
regional organizations are perhaps less incisive but nonetheless also very
powerful.
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In addition to such deliberate policies, the strategic preference of market
participants and investors to do business and invest in countries that respect the
rule of law might also account for the expansion in forms of democratic
governance. Competition between states in attracting foreign investments can
play a role in this. It has further been suggested that the protection of
investments by way of international law and treaty-based arbitration can ensure
that domestic governments are held to good administrative standards. Denials of
justice or unfair and inequitable treatment are often actionable violations of
investor protection rules. Conversely, it might be argued that international
investment law, just like other forms of involvement of international
organizations, serves not to promote but to replace democratic governance at the
domestic level.
With or without training from external actors, politicians might learn what
works; they may even simply be persuaded that, either for reasons of self-interest
or those of public interest, they should adopt more democratic practices. Finally,
market liberalization and democratization are such strong features of
contemporary discourse that states might be induced to emulate such processes
as they have occurred in other states.
The recent events of what has been termed the “Arab Spring” have
ultimately highlighted both structural factors and the unyielding struggle of
domestic constituents as additional explanatory factors in the spread of
democracy (see § VII.B.4 “Does Civil Society Promote Democracy? The Arab
Spring and the EU’s “New Response to a Changing Neighbourhood”” by V.
Volpe). Technological and demographic developments have a lot of explanatory
purchase in this context. The force of good ideas and the convictions that sustain
perseverance have probably done most to spread democracy. A demand for
human rights and the prospect of individual economic well-being are very strong
in this regard. It is to be expected that these developments will illustrate yet
another, a third, way in which the very concept of democracy itself has been
influenced by the processes of globalization. To the extent that democracy
spreads globally, domestic constituencies will appropriate and adopt democracy
within different contexts. Such processes can function as a feedback loop, thus
informing what democracy means globally.
5. Concluding Observations
Globalization and the diffusion of markets have unraveled the state as a selfcontained site of democratic governance and have pushed democracy out of its
original shell. It has had to adapt to new circumstances. I have identified three
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dimensions of this development. First, from the perspective of any single state, it
has become increasingly implausible to suggest that its citizens can in isolation
determine their own circumstances and fate. The problems outstrip capacities in
this regard. Interdependence also means that decisions in one state affect
individuals in others who do not have a say in the making of those decisions.
Second, international institutions offer responses to the challenges to democratic
governance at the domestic level, but they have themselves come to exercise
public authority, which is thus in need of democratic justification. Third,
democracy has spread globally. Together with a trend towards economic
liberalization, democratization is one of the defining features on the political
landscape of the past two decades.
In view of the events of 1989/91, Francis Fukuyama suggested at the time
that history had come to an end in the sense that any ideological struggle was
now finally resolved in favor of capitalism and democracy. But transformations in
East and South-East Europe as well as Asia were paralleled by increases in ethnic
conflict, genocide, populism and religious fundamentalism. While reality was
reluctant, ideology once again figured strongly in certain circles: economic
liberalism and democratic governance were advocated as the cure to all diseases,
at times with devastating outcomes. Powerful actors, governments of the political
West and some international organizations implored universal truths and used
them to impose their particular convictions – whether in benevolent good faith
or with strategic cunning. Democracy has force as a good idea, and those who
steadfastly face the barrels of authoritarian rule fuel its credentials. But the
globalization of democracy and the diffusion of markets, especially when backed
by powerful actors, bring looming dangers as well as promised gains.
6. References and Further Resources
a.
b.
c.
d.
E. ADLER, S. BERNSTEIN, “Knowledge in power: the epistemic
construction of global governance”, in M BARNETT, R DUVALL (eds.), Power
in Global Governance (2005), p. 294 et seq.;
J. D’ASPREMONT, “Post-Conflict Administration as Democracy-Building
Instruments”, 9 Chicago Journal of International Law 1 (2008);
U. BECK, What is Globalization?, Cambridge (2000);
A. VON BOGDANDY, “Globalization and Europe: How to Square
Democracy, Globalization, and International Law“, 15 European Journal of
International Law 885 (2004);
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
o.
p.
q.
r.
s.
t.
u.
v.
w.
x.
21
A. VON BOGDANDY, P. DANN, M. GOLDMANN, “Developing the
Publicness of Public International Law: Towards a Legal Framework for
Global Governance Activities”, 9 German Law Journal 1375 (2008);
T. CAROTHERS, “The Backlash Against Democracy Promotion”, 85 Foreign
Affairs 55 (2006);
S. CASSESE, “The Globalization of Law”, 37 New York University Journal of
International Law and Politics 973 (2005);
R. DAHL, On Democracy (1998);
T. FRANK, “The Emerging Right to Democratic Governance”, 86 American
Journal of International Law, 46 (1992);
J. HABERMAS, “Does the Constitutionalization of International Law Still
have a Chance?”, in The Divided West 113 (2006);
J. HABERMAS, “The Postnational Constellation and the Future of
Democracy”, in The Postnational Constellation: Political Essays 58 (Max Pensky,
transl. 2007);
D. HELD, Models of Democracy (2006);
R. HOWSE, “The End of the Globalization Debate: A Review Essay”, 121
Harvard Law Review 1528 (2008);
R. KEOHANE, J. NYE, Power and Interdependence: World Politics in Transition,
Little-Brown, Boston (1977);
S.M. LIPSET, “Some Social Requisites of Democracy: Economic
Development and Political Legitimacy”, 53 American Political Science Review
69 (1959);
R. MÜLLERSON, “Democratisation through the Supply-Demand Prism”, 10
Human Rights Review 531 (2009);
P.A. NOLLKAEMPER, M. ZÜRN, R. PEERENBOOM (eds.), Rule of Law
Dynamics: In an Era of International and Transnational Governance, Cambridge
(2012);
A. PRZEWORSKI, Democracy and the Market (1991);
A. PRZEWORSKI, “The Neoliberal Fallacy”, 3 Journal of Democracy 45 (1992);
C. SANTISO, “Good Governance and Aid Effectiveness: The World Bank
and Conditionality”, 7 Georgetown Public Policy Review 1 (2001);
A. SEN “Democracy as a Universal Value”, 10 Journal of Democracy 3 (1999);
B.A. SIMMONS, F. DOBBIN, G. GARRETT (eds.), “The Global Diffusion of
Markets and Democracy”, Annual Review of Sociology, (2007)
(http://scholar.harvard.edu/bsimmons/files/bsimmons_global_diffusion.
pdf);
R. TEITEL, Transitional Justice, Oxford (2000);
M. ZÜRN, Regieren jenseits des Nationalstaates, Frankfurt am Main (1998).
22
VII.A.2 The EU’s Enlargement Policy and the Promotion of Democracy:
The Case of Turkey
Valentina Volpe
1. Background
Turkey’s relationship with the European project has a long history. It has had an
Association Agreement with the European Economic Community (EEC) since
1963. Known as the “Ankara agreement”, it was signed in response to a Turkish
request for associate membership, submitted to the EEC in 1959 and it was
intended to be an interim measure which might later permit full accession: “[a]s
soon as the operation of this Agreement has advanced far enough to justify
envisaging full acceptance by Turkey of the obligations arising out of the Treaty
establishing the Community” (Art. 28).
The Association Agreement did not evolve into EEC membership, and in
April 1987, a few years after the European Community was enlarged to include
the Southern Mediterranean countries, Turkey applied for full membership on
the basis of article 237 of the EEC Treaty.
In 1989, the application was refused on the grounds of both the
institutional capacity of the EEC and the political situation in Turkey. In the
Commission’s words, “[a]lthough there have been developments in recent years
in the human rights situation and in respect for the identity of minorities, these
have not yet reached the level required in a democracy”.
The end of the Cold War and subsequent changes in the international
environment had a direct institutional impact on the European continent. In
particular, the adoption of the Maastricht Treaty in 1992 radically altered the
European approach towards democracy and human rights. For the first time,
seeking “to develop and consolidate democracy and the rule of law, and respect
for human rights and fundamental freedoms” became recognized external
objectives of the EU Common Foreign and Security Policy (Art. J.1.2).
This innovation needs to be seen alongside the results of the Council held
in Copenhagen the following year. On that occasion, the European Council
“agreed that the associated countries in Central and Eastern Europe that so
desire shall become members of the European Union” and that “[a]ccession will
take place as soon as an associated country [will be] able to assume the obligations of
membership by satisfying the economic and political conditions required” (emphasis added).
23
According to the Council’s conclusions, entrance to the European Union
must be contingent on respect for a set of political, economic and administrative
criteria, now known as the “Copenhagen criteria”. In particular, the political
criteria, requiring candidates countries to achieve “stability of institutions
guaranteeing democracy, the rule of law, human rights and respect for and
protection of minorities”, have been a powerful instrument in promoting
democracy and human rights beyond European borders. Since the adoption of
the Copenhagen criteria, the “carrot” offered by the European membership has
encouraged many states to accept the “stick” of the EU conditionality (through
which the Union imposes strict rules and standards on national legal orders), with
the ultimate hope of joining the EU (the process of “inclusion through
conditionality”).
In 1997, the Luxembourg European Council decided to open accession
negotiations with six countries, five of them formerly part of the communist bloc
(the Czech Republic, Estonia, Hungary, Poland and Slovenia, along with Cyprus).
On this same occasion, the Council introduced the Accession Partnership as a
key feature of the enhanced pre-accession strategy in order to “enable all the
applicant States […] to align themselves […] on the Union acquis prior to
accession”. Turkey, already part of a customs union with the EU since 1995, was
then declared eligible for membership.
Two years later, in December 1999, the Helsinki European Council granted
Turkey official candidate status on an equal footing with other applicant
countries. In the words of the Council: “Turkey is a candidate State destined to
join the Union on the basis of the same criteria as applied to the other candidate
States”.
The first Accession Partnership, fixing reform priorities for national
authorities, conditions and objectives for Turkey’s membership in the European
Union, was adopted in 2001 (and then revised in 2003, 2006 and more recently in
February 2008).
The decision to open the accession negotiations was made, on the basis of
a European Commission recommendation, by the Brussels European Council in
December 2004. “It decided that, in the light […] of the Commission report and
recommendation, Turkey sufficiently fulfils the Copenhagen political criteria to
open accession negotiations […]”. These were finally opened in October 2005.
Over the last ten years, on the urging of the European Union, Turkey has
undertaken a deep transformation of its legal system in order to meet the EU
requirements. The political conditionality applied in the Turkish accession
process has been a particularly influential instrument of democracy promotion
and human and minority rights improvement.
24
2. Materials
-
-
-
-
-
European Commission, Commission Staff Working Document, Turkey
2010 Progress Report, accompanying the Communication from the Commission to the
European Parliament and the Council, Enlargement Strategy and Main Challenges
2010-2011, SEC(2010) 1327, Brussels, 9 November 2010
(http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/tr_
rapport_2010_en.pdf);
Council of the European Union, Council Decision of 18 February 2008 on the
principles, priorities and conditions contained in the Accession Partnership with the
Republic of Turkey and repealing Decision 2006/35/EC, Official Journal L 051,
26/02/2008
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:051:0004:01:EN:
HTML);
European Council, Presidency Conclusions, Copenhagen, 21-22 June 1993
(http://europa.eu/rapid/pressReleasesAction.do?reference=DOC/93/3&f
ormat=HTML&aged=1&language=EN&guiLanguage=en);
European Council, Presidency Conclusions, Luxembourg, 12-13 December
1997
(http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/e
c/032a0008.htm);
European Council, Presidency Conclusions, Helsinki, 10-11 December 1999
(http://www.europarl.europa.eu/summits/hel1_en.htm);
European Council, Presidency Conclusions, Brussels, 16-17 December 2004
(http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en
/ec/83201.pdf);
Ankara Agreement, Agreement Establishing an Association Between the European
Economic Community and Turkey, Ankara, 1 September 1963
(http://www.abgs.gov.tr/index.php?p=117&l=2);
Commission of the European Communities, Commission Opinion on Turkey’s
Request for Accession to the Community, Brussels, 20 December 1989, SEC
(89)2290 final 2
(http://aei.pitt.edu/4475/1/4475.pdf);
Commission of the European Communities, Communication from the
Commission to the Council and the European Parliament: Recommendation of the
European Commission on Turkey’s progress towards accession, COM(2004) 656
final, Brussels, 6.10.2004
(http://eur-
-
-
25
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2004:0656:FIN:EN:P
DF);
Commission of the European Communities, Regular Report on Turkey’s
progress towards accession, 2003
(http://ec.europa.eu/enlargement/archives/pdf/key_documents/2003/rr_
tk_final_en.pdf);
Negotiating Framework EU - Turkey, Luxembourg, 3 October 2005
(http://ec.europa.eu/enlargement/pdf/turkey/st20002_05_tr_framedoc_e
n.pdf);
Parliamentary Assembly, Committee on the Honouring of Obligations and
Commitments by Member States of the Council of Europe, CoRapporteurs: Mrs Mady Delvaux-Stehres, Mr Luc Van den Brande, Report:
Honouring of obligations and commitments by Turkey, Doc. 10111, 17 March 2004
(http://assembly.coe.int//Main.asp?link=http://assembly.coe.int/Docume
nts/WorkingDocs/doc04/EDOC10111.htm).
3. Analysis: Fulfilling the Copenhagen Political Criteria: the Turkey 2010 Progress Report
Since 1998, the European Commission has reported regularly to the Council and
the Parliament on the political, economical and social developments taking place
in each of the candidate countries. The annual reports are intended to be an
instrument for monitoring the progress of the candidate states along the path
indicated by the European Union, in particular through the Accession
Partnership, towards the fulfilment of the Copenhagen criteria.
The Turkey 2010 Progress Report carefully analyses the situation existing in
the country and assesses progress in terms of the political and economic criteria
over a period of twelve months. It also assesses Turkey’s capacity to assume the
obligations of membership (the acquis communautaire expressed in the Treaties,
secondary legislation and policies of the Union).
In the report, the analysis of the Copenhagen “political criteria” (para. 2) is
divided into three sub-sections: “Democracy and the rule of law” (2.1); “Human
rights and the protection of minorities” (2.2.); and “Regional issues and
international obligations” (2.3.). In what follows, I will highlight, for each of these
sub-sections, the ways in which the EU’s “principles, priorities and conditions”,
contained in the revised Accession Partnership of 2008 have been able to modify
(or not, as the case may be) the Turkish legal order.
The most relevant innovation in the Turkish legal system with respect to
“democracy and the rule of law” is a wide-ranging constitutional reform package
adopted by Parliament in May 2010 and ratified by a popular referendum in
26
September of the same year. Among its key provisions are the restriction of the
authority of military courts, the introduction of the ombudsman service and the
explicit possibility of positive discrimination measures in favour of women,
children and the elderly.
The reform package, which the Commission called “a step in the right
direction”, addressed a number of priorities contained in the Accession
Partnership of 2008 and responded, at least to a certain extent, to some longstanding European concerns about Turkey. In particular, the constitutional
reform limited the jurisdiction of military courts to “military service and military
duties”.
Civilian courts are now competent to deal with crimes against state security,
the constitutional order and its functioning. If, on the one hand military courts
have already lost the right to try civilians (Progress Report 2003), the new reform
package would allow civilian courts to try several high-ranking military officers.
The amendments are in line with the EU requests to “[s]trengthen efforts to align
civilian control of the military in line with the practice in EU Member States,
[e]nsur[ing] that the military does not intervene in political issues and that civilian
authorities fully exercise supervisory functions on security matters […]”.
Reducing the influence of the military in the political public life of the
country and ensuring civilian oversight of security forces in the Turkish
constitutional order has been a persistent concern of the European Union. The
same can be said with regard to the improvement of the rights of those in socially
weaker categories, and, of women’s rights in particular. Beyond the abovementioned constitutional amendments, which provide the basis for the
introduction of positive discrimination measures in the future, the report
mentions a Prime Ministerial circular issued with the aim of promoting women’s
employment and equal opportunities, in particular in the labour market. The
circular also provides for the creation of “a national board for monitoring and
coordinating matters related to women’s employment, for involvement of social
partners and NGOs in the work of the board and for pursuit of gender equality
and gender mainstreaming in drafting and implementing legislation and policies”.
It reflects the short-term priority set out in the EU Accession Partnership
requiring Turkey’s authorities to “promote the role of women in society,
including through ensuring equal access to education and participation in the
labour market and in political and social life”.
The concrete appliance of the second sub-section of the Report’s political
criteria, “human rights and the protection of minorities” (2.2.), has mainly dealt,
in the Turkish case, with prevention of torture and ill-treatment, with better
protection of fundamental freedoms (especially freedom of expression, of
religion and of assembly) and with the improvement of Kurdish minority rights. I
27
will focus here on the latter issue, which is however, deeply intertwined with the
first two. The Kurdish minority, whose autonomous cultural identity has long
been taboo (the Treaty of Lausanne, which recognized the newly established
Turkish Republic, legally recognized only “non-Moslem minorities”), has
historically suffered serious violations of human rights in Turkey.
The improvement of the Kurds’ cultural and linguistic rights has been one
of the priorities of EU political conditionality towards Turkey. The Commission’s
report welcomes, in this area, the amendments introduced to the Law on
elections and electoral rolls that will allow, on a practical level, the use of
languages other than Turkish during electoral campaigns, as well as the
amendments to the Regulations on the Radio and Television Supreme Council
that will remove all restrictions on broadcasting in Kurdish and other languages
both by private and public channels at a local level. Little by little, Turkey is
trying to meet the EU Accession Partnership’s requirement of “improving the
situation in southeast Turkey, with a view to enhancing economic, social and
cultural opportunities for all Turkish citizens, including those of Kurdish origin.”
The third sub-section, “regional issues and international obligations” is
particularly delicate considering its aim of influencing the last reserved domain of
national sovereignty: foreign policy.
Since the adoption of the 2005 Negotiation Framework, the “Cyprus
problem”, this has been one of the most significant issues on the table in the EUTurkey access negotiations. The 2010 report does not record any improvements
in the directions indicated by the European institutions. Turkey has not fulfilled
its obligations of complete and non-discriminatory implementation of the
Additional Protocol to the Association Agreement; it has failed to remove the
obstacles to the free movement of goods to the country, and to relax its
limitations on direct transport links with Cyprus. It has also failed to make
progress in the normalisation of bilateral relations with the country and continues
to veto Cyprus’s membership of several international organizations.
EU political conditionality has thus directly affected the Turkish 2010
constitutional reforms. These reforms represented progress in the directions
recommended by the 2008 Accession Partnership. The amendments to electoral
law and the provisions favouring greater involvement of the Kurdish minority in
Turkish public life were also a result of the EU political conditionality.
Nonetheless, a shared solution to the Cyprus problem remains far off, and it
seems unlikely that EU political conditionality will be able to bridge that gap in
the near future.
28
4. Issues: An Additional Enforcement Mechanism: EU Political Conditionality
Implementing Council of Europe Democracy Standards
European political conditionality has proven itself to be, in general terms, one of
the most effective instruments of democracy promotion created by an
international organization – albeit a sui generis one like the European Union –
since the end of the Cold War. This strong form of “top down” influence,
capable of profoundly affecting the political behavior and legal choices of state
authorities, seems to raise various theoretical and practical questions.
First, is European political conditionality subject to the same standards of
democratic legitimacy and socio-political inclusiveness it aims to promote in
candidate countries? Second, considering the intrinsically intergovernmental
nature of political conditionality and its “top down” structure, is European
influence restricted to the formal legal framework of candidate countries without
affecting their “political, social and economic reality” (Progress Report, 2010)?
Will the pro-democratic European influence, which is exercised mainly during
the accession phase when the prospect of EU membership provides greater
leverage, also be able to secure new or candidate members from future antidemocratic backlashes? Finally, if EU accession is open, and consequently,
political conditionality potentially applicable to “[a]ny European State” (art. 49
TEU), is it therefore possible to imagine the borders of political Europe
coinciding with those of the larger, geographical Europe? And, on the other
hand, how effective will European democracy promotion be with respect to nonEuropean countries, who are by definition excluded from the benefits of
potential EU membership?
All these, and numerous other questions, deserve in-depth and independent
analysis. However, there is an additional, underdeveloped, secondary effect of
political conditionality, which I would like to focus on here.
In the section, I want to emphasise the fact that EU political conditionality
has progressively come to form an additional enforcement mechanism for the
legal standards adopted by another international organization: the Council of
Europe (CoE). The EU’s progress reports and Accession Partnership documents
in fact make frequent references to conventions, guidelines and judgments
adopted in the CoE framework as benchmarks to be fulfilled in order to meet the
EU’s own political conditionality requirements. This mechanism of direct recall
and overlap of standards adopted in a different legal framework seems to
inaugurate a new supranational and integrated system of protection for human
rights and democracy standards for the European continent.
Two examples of the EU capacity to enforce CoE’s standards in candidate
states, as a component of its own political criteria, deserve special mention: the
29
abolition of the death penalty in the Turkish legal system and the EU’s
supervision of compliance with judgments of the European Court of Human
Rights (ECtHR).
In 1996, the Council of Europe, at the request of the Parliamentary
Assembly, established a monitoring procedure in order to verify Turkey’s
compliance with CoE’s obligations and commitments, and to urge Turkey to
pursue reform in order to bring its legislation and practice into line with the
Council of Europe’s standards and principles of pluralist democracy, the rule of
law and human rights.
In 2004 the Rapporteurs observed that, in previous years, Turkey had
demonstrated its commitment and ability to fulfil its statutory obligations as a
Council of Europe Member State, and proposed that the monitoring procedure
be closed. In the words of the report: “Turkey has achieved more reforms in a
little over two years than in the previous decade”. The Assembly endorsed this
decision, confident that the Turkish authorities would apply and consolidate the
reforms it had set in motion, congratulating in particular the long-awaited
abolition of the death penalty from within the legal system of the country.
Turkey has been a member of the Council of Europe since 1949. It ratified
the European Convention on Human Rights (ECHR) in 1954, but declined to
ratify, in subsequent years, Protocols No. 6 (1983), abolishing the death penalty
in peacetime and No. 13 (2002) abolishing death penalty in all circumstances. The
monitoring activity and political influence of the EU played a fundamental role in
ensuring the consolidation of these reforms in Turkey in accordance with the
Council of Europe’s demands.
From its early reports onwards, the European Commission denounced the
continued existence of the death penalty in the Turkish legal order (although
unapplied since 1984) as inconsistent with European standards.
The EU Accession Partnerships of 2001 provided that the abolition of the
death penalty and signature and ratification of Protocol No. 6 of the European
Convention of Human Rights were among the key objectives that Turkey had to
fulfil in order to join the Union. In the revised version of the Accession
Partnership of May 2003, the ratification of Protocol No. 6, duly signed in
January 2003, was included among the priorities for the years 2003/2004.
The 2004 EU Turkey Progress Report, issued in October, registered the
ratification of Protocol No. 6 in November 2003, and the signature of Protocol
No. 13 in January 2004. The latter was finally ratified in February 2006, thus
abolishing the death penalty under all circumstances within the Turkish legal
order.
It is not possible to know whether Turkey would have ratified the CoE
Protocols abolishing the death penalty without European political conditionality
30
and the incentive represented by potential membership in the EU. It seems
undeniable, however, that EU conditionality, through its monitoring reports and
precise Accession Partnership demands, represented a strong additional
enforcement mechanism for Council of Europe human rights standards.
The EU accession documents also increasingly make reference to candidate
countries’ compliance with the judgments and case-law of the European Court of
Human Rights (ECtHR) as an element relevant to an assessment of adherence to
the Copenhagen political criteria.
The 2008 Accession Partnership recommends, for example, that Turkey
“[s]trengthen efforts […] to ensure that interpretation by the judiciary of
legislation related to human rights and fundamental freedoms is in line with the
European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR), [and] with the case law of the European Court of Human
Rights (ECtHR) […].” The 2008 EU’s reports clearly recognize ECtHR case-law
as an authoritative international legal standard, for example, in the domain of
freedom of expression. The Commission welcomed Turkey’s progress on the
execution of ECtHR judgments, noting nevertheless that “further efforts [were]
needed in this context”, and in particular that additional legislative reforms were
necessary in order “to ensure full respect of freedom of expression, in law and in
practice, in line with the ECHR and the ECtHR case law”.
Over the years, EU monitoring activity of candidate countries’ compliance
with the case-law of the European Court of Human Rights has become more and
more detailed, recording violations, pending cases, and obligations to fulfil. The
relevant section on “observance of international human rights law” of the 2011
Progress Report notes: “[d]uring the reporting period, the European Court of
Human Rights (ECtHR) delivered a total of 418 judgments finding that Turkey
had violated rights guaranteed by the ECHR. The number of new applications to
the ECtHR went up for the fifth consecutive year. Since October 2010, a total of
7,764 new applications have been made to the ECtHR. Most of them concern
the right to a fair trial and protection of property rights. In September 2011,
18,432 applications regarding Turkey were pending before the ECtHR. Turkey
has abided by the majority of ECtHR rulings, including payment of
compensation totalling €24.5 million in 2010. Some rulings have not been
followed up by Turkey for several years. The government’s announcement that it
would address these issues was not followed through.”
In this progressively more integrated system for the protection of human
rights and democratic standards, EU progress reports also follow the
implementation of important ECtHR judgments step-by-step, such as the case of
Cyprus v. Turkey (25781/94, 10 May 2001).
31
The EU accession process and related monitoring activities have become
powerful enforcement mechanisms for ECtHR judgments, and thus an additional
device for supporting the Committee of Ministers in its role of supervising the
execution of ECtHR judgments (Art. 46 ECHR).
Driven by the strength of European political conditionality, candidate
countries have undertaken profound transformations of their internal legal
orders. In using the effectiveness of its system of political conditionality to
supplement the enforcement of the CoE’s international instruments, the EU has
inaugurated a new supranational and integrated system for the protection of
human rights and democratic standards on the European continent.
5. Further Reading
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
C. ARVANITOPOULOS (ed.), Turkey’s Accession to the European Union: An
Unusual Candidacy, Berlin, Heidelberg (2009);
E. BARACANI, Unione europea e democrazia in Turchia, Soveria Mannelli (2008);
S. CASSESE, Il diritto globale: Giustizia e democrazia oltre lo Stato, Torino (2009);
EUROPEAN COMMISSION, Communication from the Commission to the European
Parliament and the Council, Enlargement Strategy and Main Challenges 2011-2012,
COM(2011) 666 final, Brussels, 12.10.2011
(http://ec.europa.eu/enlargement/pdf/key_documents/2011/package/str
ategy_paper_2011_en.pdf);
E. FAUCOMPRET, J. KONINGS, Turkish Accession to the EU: Satisfying the
Copenhagen criteria, London, New York (2008);
J.S. JOSEPH, “EU Enlargement: The Challenge and Promise of Turkey”, in
F. BINDI (ed.), The Foreign Policy of the European Union: Assessing Europe’s Role
in the World, Washington D.C. (2010), p. 155 et seq.;
P.J. KUBICEK, “The European Union and democracy promotion”, in P.J.
KUBICEK (ed.), The European Union and Democratization, London, New York
(2003), p. 197 et seq.;
P. LEVITZ, G. POP-ELECHES, “Why No Backsliding? The European
Union’s Impact on Democracy and Governance Before and After
Accession”, 43 Comparative Political Studies 457 (2010);
A. MAGEN, T. RISSE, M.A. MCFAUL (eds.), Promoting Democracy and the Rule of
Law: American and European Strategies, Houndmills, Basingstoke New York,
(2009);
E. ÖZBUDUN, Ö.F. GENÇKAYA, Democratization and the Politics of ConstitutionMaking in Turkey, Budapest, New York (2009);
32
k.
l.
m.
n.
G. PRIDHAM, “Change and Continuity in the European Union’s Political
Conditionality: Aims, Approach, and Priorities”, 14 Democratization, 446
(2007);
T.W. SMITH, “The politics of conditionality: the European Union and
human rights reform in Turkey”, P.J. KUBICEK (ed.), The European Union and
Democratization, London, New York (2003), p. 111 et seq.;
L. TUNKROVÁ, “Democratization and EU conditionality: A barking dog
that does (not) bite?”, in L. TUNKROVÁ, P. ŠARADÍN (eds.), The Politics of EU
Accession: Turkish challenges and Central European experiences, London, New
York (2010), p. 34 et seq.;
A.R. USUL, Democracy in Turkey: The impact of EU political conditionality,
London, New York (2011).
33
VII.A.3 The UN Fund on Democracy and the European Instrument for
Democracy and Human Rights: Causality or Convergence?
Bruno Carotti
1. Background
As political science has amply demonstrated, democracy is a highly complex
issue, subject to many very different conceptions. It clearly belongs to the class of
“essentially contested concepts”; ideas “the proper use of which inevitably
involves endless disputes about their proper uses on the part of their users”
(Gallie, 1956). Thought of as indispensable to peace, it is also used as a
justification for war.
Different kinds of ideas can constitute democracy’s conceptual framework:
first of all, a notion based on procedural participation; secondly, a liberal
definition, centred on human rights; thirdly, a social characterization, focused on
welfare and socio-economic rights. All of these conceptions must be explicitly
and careful considered for a comprehensive ‘global’ discourse of democracy.
In any event, the participation of the people in the exercise of public power
and in the management of public institutions seem to be core aspects of most
conceptions of democracy. Indeed, such participation is closely related to the key
notions of popular sovereignty and collective decision-making, a means of
ensuring that even the voices of “outsiders”, of those living at the margins of
society, are heard.
From a slightly different point of view, democracy has been understood
and measured on the basis of the economic development. This is an important
theme, as many political thinkers have argued that economic development is a
prerequisite for democracy: indeed, for some, democracy represents a mere
instrument for ameliorating economic conditions. However, even if it has been
demonstrated that economic prosperity fosters democratic participation, a focus
on the instrumental value of democracy could well lead to a narrower and less
ethically meaningful concept. It is in this sense that Amartya Sen has insisted that
democracy must be understood as an independent value in its own right, centred
on the wellbeing of individuals.
This notwithstanding, the idea of “promoting democracy” – transplanting a
socio-economic structure from a particular nation to another – remains a
34
profoundly controversial aspect of the globalization process. The level of success
of different efforts in this regard to date remains highly contested.
The principle of self-determination, one of the core principles of
international law, set out in Article 1(2) of the UN Charter and in Article 1(1) of
the International Covenant on Civil and Political Rights, was strongly reaffirmed
by the UN General Assembly in its Friendly Relations Declaration of 1970
(Resolution 2625 XXV). This Declaration indicated some of the (legal) limits on
the possibility to export “values” abroad, based on a general requirement – which
ranks among the core norms of international law – of respect towards those
living in other countries.
Is it still possible, in this context, to talk of promoting (or exporting)
democracy? As Marti Koskenniemi has pointed out, the principle of selfdetermination is Janus-faced: on one hand, it can be highly beneficial in fostering
the genuine participation of individuals in public debate and public life in general;
on the other, it can often serve to bolster nationalist and isolationist impulses
(quoted in Klabbers, 2006).
In terms of democracy-promotion at the supranational level, two key
instruments function in parallel, in two different institutions: the UN and the EU.
The first is the United Nations Fund for Democracy (UNDEF). Introduced as a
trust fund of the Secretary General in July 2005, and established in 2006, “the
UNDEF finances projects primarily carried out by civil society organizations as
well as by independent constitutional bodies, regional and international
organizations”. Projects may either take place in one country, in specified states
of a region or sub-region, or at the global level.
A roughly analogous mechanism has been established by the EU: the
European Instrument for Democracy and Human Rights (EIDHR). Aside from
the protection of human rights (a requisite for the accession of new countries to
the EU), the EIDHR fosters the promotion of democracy within third Countries
and, on occasion, also within EU Member States. To this end, the Commission
adopts specific project plans in which it sets out the basic elements of such
intervention.
Both instruments have adopted a similar approach, seeking to overcome
the difficulties encountered by national governments in taking their States down a
more democratic path. In particular, the fostering of civil society is viewed as key:
following Tocqueville, a thriving civil society is seen as key to providing the
necessary mediation between individuals and state institutions within a
functioning democracy. At the same time, however, there is a risk, in theoretical
terms, that external bodies imposing measures to overcome the deficiencies of
national governments may itself undermine the very democracy that it seeks to
35
promote, to the extent any changes should be driven by internal preferences if
they are to be understood as an expression of popular sovereignty.
2. Materials
-
-
-
United Nations Democracy Fund
(http://www.un.org/democracyfund/);
European Instrument for Democracy & Human Rights (EIDHR)
(http://ec.europa.eu/europeaid/how/finance/eidhr_en.htm);
Regulation (EC) No 1889/2006 of the European Parliament and of the
Council, of 20 December 2006, on establishing a financing instrument for
the promotion of democracy and human rights worldwide
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:386:0001:0011:en
:PDF);
Channel Research, Generating Impact Indicators European Initiative for Human
Rights
and
Democracy,
March
2005
(http://ec.europa.eu/europeaid/what/humanrights/documents/impact_indicators_channel_en.pdf);
European Instrument for Democracy and Human Rights (EIDHR)
Strategy Paper 2011-2013
(http://ec.europa.eu/europeaid/what/humanrights/documents/eidhr_strategy_paper_2011_2013_com_decision_21_ap
ril_2011_text_published_on_internet_en.pdf).
3. Analysis
The UNDEF is a “unique regulatory body”, established as part of a “strategy of
commonality of democracies”; its creation seeks to re-emphasize democratic
issues following the UN World Summit of 2005. It is based on the idea that the
financing of specific projects can enhance democracy (including dialogue,
constitutional processes, and civil society empowerment more generally) in
particular regions or countries.
Structurally, the UNDEF is steered by an Executive head, assisted by a
small team of experts. The Advisory Board helps the Secretary-General in
defining policies, programmes and criteria for funding.
36
Contributions are decided by States on a voluntary basis, which is a
potential weakness of the Fund (for the importance of funding in a related UN
context – the UNESCO, see § I.B.6 “Palestine Admission into the UNESCO: A
Case of Politics, and Finances”, by I. Paradisi). Today, there are seven major
donors (the US, India, Sweden, Germany, Spain, Australia, and France). Its
budget in 2010 amounted to around 110 million dollars, a result of contributions
from 39 donors.
With regard to assignments, in the fourth round of funding (2009-2010),
the UNDEF received 1,966 applications, of which 65 projects were selected for
an estimated total cost of $16.33 million. Geographically, distribution is uneven:
the Fund primarily contributes to projects in Africa (31% of the total in 2010)
and in the Asia-Pacific region (32%). Key activities include community
development (28%), fostering the emancipation of women (20%), and projects
related to the rule of law and human rights (17%). Activities aimed at
strengthening the tools of government were less common (14%).
No specific idea of democracy is endorsed by the Fund: its activity is
instead based on the general principles recognized by UN. It is thus vital to
identify which kinds of actions are compatible with these principles: as should be
clear, an equilibrium must be sought between external intervention in a particular
country and the above-mentioned principle of self-determination. It is for this
reason that the Fund does not “impose” any activity, insisting instead on a
cooperative basis for project funding.
The rule of law, the protection of minorities, and electoral participation all
seem to be inscribed within the “core values and principles of United Nations”.
Do these represent the heart of democracy, in the strategic vision of the
UNDEF? Put otherwise: if no specific model is chosen, what kind of
“democracy” does the Fund endorse through its funding choices?
It seems clear that there is indeed a “core” idea of democracy – based on
elements such as participation, the emancipation of women, electoral processes
and constitutional developments – underlying and directing the activities of the
UNDEF. This is also true of another important sphere of its activities: the
promotion of human rights, as will be discussed below.
In the European context, the EIDHR became operational in 2007, after the
adoption of Regulation no. 1889/2006. From an organizational point of view, it
is operated by the European Commission, and is a mechanism for the exercise of
the EU’s competences on external relations, as well as on cooperation and
development. For the period 2007-2013, it has a budget of 1104 million Euros.
The EIDHR is intended to “complement the various other tools for
implementation of EU policies on democracy and human rights, which range
from political dialogue and diplomatic demarches to various instruments of
37
financial and technical cooperation, including both geographic and thematic
programmes” (Regulation no. 1889/2006, Recital no. 11).
It is a “new, simplified political and administrative structure for the delivery
of the Community’s external assistance and cooperation programmes”, as well as
an “[i]nstrument for the promotion of democracy and human rights worldwide”
(Recital no. 1). Its key objectives are: the enhancement of the rule of law, human
rights and fundamental freedoms (both internationally and regionally); the
strengthening of the civil society’s role in promoting human rights and
democratic reform; the support of peaceful conciliation of interests groups; the
consolidation of political participation and representation; the fight against death
penalty, torture, children and armed conflicts and violence against women; the
promotion of reliability and transparency in democratic electoral processes, in
particular through the monitoring missions.
As with UNDEF, the financing of selected practices and projects is at the
core of the EIDHR’s activities. According to its website, the European fund
deals with “civil society organisations; public and private sector non-profit
organisations; national, regional and international parliamentary bodies, where the
proposed measure cannot be financed under a related Community external
assistance instrument; international and regional inter-governmental
organizations; natural persons, where their involvement is necessary for achieving
the aims of the EIDHR”.
The principal beneficiaries are developing countries. In some cases, the
EIDHR seems to have functioned effectively; in Morocco, for example, it
assisted various NGOs during the electoral process, operating as a kind of
counterbalance for the “irregularities” introduced by the regime (YOUNG 2010,
129). Moreover, Recital no. 1 of Regulation no. 1889/2006 explicitly affirms that
the EIDHR is a means of promoting promotes democracy “independent from the
consent of third country governments and other public authorities”. The EU has thus made a
choice to go act irrespective of the wishes of the governments of third countries
in certain cases, in pursuit of the “superior idea” of democratic governance. As
indicated in the introduction, however, this approach carries dangers of its own,
as – from a theoretical perspective at least – it risks a potential clash with the
recognized principles of international law and the very idea of democracy,
connected to the exercise of sovereignty by local people.
This notwithstanding, the EIDHR and UNDEF may still interact. At a
general level, there is an explicit reference in the Regulation establishing the
EIDHR to the “general principles established by the International Bill of Human
Rights, and any other human rights instrument adopted within the framework of
the United Nations”. In addition, EIDHR has structural connections to the
Office of the UN High Commissioner for Human Rights.
38
Generally speaking, the European Instrument also claims not to favour any
specific form of democracy over the others; rather, its democracy-promotion
activities remain closely bound up with its work in furthering human rights
protections.
4. Issues
These mechanisms provide us with an example of global are regional dimensions
of governance interacting in such a manner as to produce a sort of convergence
in the goals pursued and in the instruments used. Both funds have a similar modus
operandi: the provision of financial assistance to the activities of NGOs, interest
groups and, on some occasions, domestic public institutions. The existence of
mechanisms of this sort is something of a novelty, and raises three general issues.
The first relates to the scope of the “value” of democracy, which is an idea
that can contain a range of different objects, mechanisms and purposes. As noted
above, there can be differing conceptualizations of what constitutes
“democracy”, ranging from a proceduralist notion (focused on the participation
of, and contestation within, civil society); a liberal approach (which adds a
broader range of civil and political rights to the mix); and a welfare-based
understanding (which also encompasses social and economic rights). The
question of which of these is to be preferred remains unresolved within both the
EIDHR and the UNDEF; and, in general, some clarification of the core concepts
used, in order to ensure not merely improved representation and participation,
but also the protection of the basic rights of the individual, would be an
important step forward.
More generally still, the question remains of whether the desire to
ameliorate economic conditions through the promotion of democracy in fact
means that the latter is purely instrumental to the former, rather than an
independent value in its own right. Do the founding choices of the funds suggest
that certain economic conditions are to be seen as implicit “prerequisites” for the
establishment of democratic institutions? Is there an inherent connection
between democracy and economic or social development? Put otherwise, is there
a sense that there is a further, more fundamental value lying behind the choices
of the funds, which constitutes the ultimate goal of their activities and to which
the promotion of democracy is merely instrumental?
Another aspect of this first issue concerns the importance of “free and fair
elections” to the establishment of democracy. In this regard it is worth noting
that, while this is merely one of a range of policy goals pursued by the EIDHR, it
appears to be the central focus of the UNDEF (even where it also aims to
39
promote the rule of law and social development). Is, however, the existence of
free and fair elections a condition both necessary and sufficient to talk about the
successful establishment of a democratic political system? The EIDHR seeks to
go beyond such a “thin” perspective through its deployment of a range of
“indicators of change”, which are intended to help evaluate the effectiveness of
the EIDHR’s assistance, and which reveal the methodologies of democracypromotion it endorses. In order to increase their legitimacy, however, the
development of the indicators is outsourced to independent consultants; raising
further important questions in relation to who is to be entrusted with the crucial
task of thus “defining” democracy, and why their views are themselves legitimate.
A final challenge in this regard relates to the dichotomy between
democratization on one hand and security and order on the other (see also
Section VII.D “Global Security”). As indicated in a report by the Secretary
General, security is indeed “threatened” by the absence of democracy (Report of
the Secretary General on the work the Organization, 2008, p. 15). But who defines
“security”? Is, however, the concept of security flexible enough to accommodate
a robust notion of democracy? As history often teaches, a rigid notion of security
– coupled with a single-minded deployment of means to that end – often results
in the curtailing of the basic elements of democratic legitimacy (prime amongst
which is the participation of citizens in decisions relating to the collective
interest). It is, therefore, necessary to scrutinize closely the extent to which the
quest for security might serve to undermine basic democratic freedoms.
A second general issue is the role of human rights in democracy promotion.
Both the European and UN funds appear to consider this an essential
component (as the “liberal” conceptualization suggests), although this is
particularly marked in the activities of the EIDHR. The EU Charter of
Fundamental Rights (now in force), Article 6 of the Treaty on European Union,
and the forthcoming accession of the Union to the European Convention on
Human Rights combine to produce a strong commitment to the protection of
individuals in Union actions. Article 2(2)(a) of Regulation no. 1889/2006 affirms
this, indicating that the primary goal of the EIDHR is promoting the “respect for
and observance of human rights and fundamental freedoms, as proclaimed in the
Universal Declaration of Human Rights and other international and regional
human rights instruments”.
Nonetheless, from a conceptual and ontological perspective, there is a clear
distinction between these issues. As the Regulation affirms, “[h]uman rights are
considered in the light of universally accepted international norms, but democracy
has also to be seen as a process, developing from within, involving all sections of
society and a range of institutions, in particular national democratic parliaments,
40
that should ensure participation, representation, responsiveness and
accountability” (emphasis added).
There is thus apparent divergence in the general approaches of the two
mechanisms, a result of differing positions on the role of human rights in
democracy promotion. As indicated in the Kadi case before the ECJ (see § III.B.1
“The War on Terror and the Rule of Law”, by M. Savino), and in the Opinion of
Advocate-General Maduro in particular, the protection of human rights within
the European legal order has attained a significantly higher level of development
and specification than has its global counterpart, and must be considered binding
on EU institutions even where to do so would result in a violation of
international obligations. This aspect must be taken into account when
considering the interaction between the UN and EU mechanisms of democracy
promotion.
In general terms, indeed, “[d]emocracy in its essence is about the peaceful
redistribution and sharing of decision-making power […]. Human rights are
about placing limits on state power where it threatens the dignity, equality and
freedom of individuals and groups. It is about power inequalities, and the
treatment of the least powerful, marginalised members of society” (RIMMER
2010). The distinction, above all in conflict (where human rights are most at risk)
and post-conflict contexts (to which the majority of EU and UN funding in this
regard is directed), may be crucial in ensuring that reconstruction goals are
effectively achieved.
The third issue relates to administrative cooperation: it is intriguing, in this
regard, to find common elements between the two mechanisms. The goals of EU
are closely related to those of the UN; there is a mutual reference between the
Organizations (see, for example, Art. 2(2)(a) of Regulation no. 1889/2006,
quoted above). The presence of these well-defined, target-oriented structures,
and their operational modality, which actively seeks out the involvement of local
actors (associations, NGOs, etc.), indicates that both mechanisms seek to foster
the process of democratization indirectly, through facilitating the participation
and involvement of external subjects (i.e. local actors). Has, however, this
method proved effective in terms of developing a new, genuinely pluralistic
approach? Or does the preferential treatment accorded to certain local actors in
this regard raise issues of the objectivity and transparency of the selection
process?
We have learnt that participation may lead to a substantial absence of real
contestation, preparing the ground for the establishment of a “polyarchy” (Dahl,
1971). Participation can indeed be used as a shield by the public authority, for the
simple reason that it implies the recognition of that authority, and can lead to the
“taming” and colonisation of local interests through their being directed into
41
relatively weak institutional channels. Rather, then, than enhancing contestation,
formal participation rights can have the effect of undermining it. A real
democratic system, on the other hand, must ensure that genuine alternatives are
on the table, the there is real public control over the decisions adopted, that the
relevant officials are selected on the basis of a transparent and regularly recurring
process, and that the voices of all those affected are heard. The main question,
thus, seem to be the “quality” of democracy, understood as effective benefits to
citizens in terms of transparent and open decision-making process, free and fair
elections, protections of human rights, and amelioration of economic conditions.
All of these elements must converge in an overall concept of democratization
(for an overview on the relation between globalization and democracy, see §
VII.A.1 “Explaining the Globalization of Democracy: Democracy and the
Diffusion of Markets”, by I. Venzke; see also § VII.A.6 “VII.A.6 Guaranteeing
Electoral Democratic Standards: The Venice Commission and “The code of
good practice in electoral matters”, by V. Volpe).
Does this blurring of the underlying ideas and principles informing the
funding choices of the two mechanisms reveal that their methodologies are
ineffective, or insufficiently developed? What are the limits of the democracy
promotion activities of global or regional organizations – that is, to what extent
do they really promote the effective and free choice of the citizens? Does it even
make sense still to think of “democracy” as a unitary concept, or might instead
the two funds be operating according to quite different – even opposed –
understandings of that term?
5. Further Reading
-
B. BOWDEN, H. CHARLESWORTH, J. FARRALL (eds.), The Role of International
Law in Rebuilding Societies after Conflict: Great Expectations, Cambridge (2009);
J. KLABBERS, “The Right to be Taken Seriously: Self-Determination in
International Law”, 28 (1) Human Rights Quarterly (2006), pp. 186 et seq.;
T. KOMORI, K. WELLENS (eds.), Public Interest Rules of International Law:
Towards Effective Implementation, Farnham-Burlington (2009), pp. 117 et seq.;
A. MOLD, EU Development Policy in a Changing World: Challenges for the 21st
Century, Amsterdam (2007);
S. MARKS, The Riddle of all Constitutions: International law, Democracy, and the
Critique of Ideology, Oxford (2000);
E. NEWMAN, R. RICH (eds.), The UN Role in Promoting Democracy: Between
Ideals and Reality, Tokyo (2004);
42
-
-
S.H. RIMMER, Building Democracy and Justice After Conflict: Working Paper No. 3,
The United Nations Democracy Fund, March 2010
(http://www.cdi.anu.edu.au);
A. SEN, Democracy as a Universal Value, 10 (3) Journal of Democracy (1999), pp.
3
et
seq.
(http://www.unicef.org/socialpolicy/files/Democracy_as_a_Universal_Va
lue.pdf);
R. YOUNGS, The European Union and Democracy Promotion: A Critical Global
Assessment, Baltimore (2010);
Challeges to Democracy Building: Recommendations for a new Swedish policy on
democracy Building, International Institute for Democracy and Electoral
Assistance (2008)
(http://www.idea.int/publications/challenges_to_democracy_building/upl
oad/Challenges-Report-Web-2.pdf).
43
VII.A.4 The OAS: Legalizing Norms of Democracy
Giacomo Delledonne
1. Background
The Organization of American States (OAS) was established in April 1948 by the
Charter of Bogotá (see § V.7 “The OAS and the Inter-American Court of
Human Rights: A Human Rights’ Framework for the Americas” by B. Bonafini).
The Charter formalized the so-called Inter-American System which had been in
place since the 1st Inter-American Conference in Washington (1889-90). At the
very beginning, the Inter-American System mainly had commercial goals: its chief
body was an internal office of the U.S. Department of State, entrusted with
collecting information and statistical data on commerce, production and custom
tariffs of the American States. In the first half of the 20th century, the InterAmerican Conferences adopted recommendations and treaties concerning
consular and diplomatic relations, asylum, extradition, the treatment of foreign
nationals, conflict of laws, intellectual property, and scientific and cultural
cooperation. From the 1930s, the peaceful resolution of controversies and
collective security became the central business of the Inter-American System.
The Inter-American Treaty of Mutual Assistance (Rio de Janeiro 1947) was
a regional agreement for the preservation of security and peace, as envisaged
under Article 52 of the UN Charter. Following this, the OAS was established
with the goal of promoting the peaceful resolution of controversies (the Charter
of Bogotá of 1948). According to Article 1 of the Charter, the OAS is “a regional
agency … within the United Nations” – in fact, it is a fully autonomous
organization. The Preamble of the Charter of the OAS affirms that the American
States are convinced “that representative democracy is an indispensable condition
for the stability, peace and development of the region”. Among the goals of the
OAS, Article 2 of the Charter lists “to strengthen the peace and security of the
continent … to promote and consolidate representative democracy, with due respect for the
principle of nonintervention … to prevent possible causes of difficulties and to ensure
the pacific settlement of disputes that may arise among the Member States … to
provide for common action on the part of those States in the event of
aggression”, etc.
The principle of non-intervention and the Cold War were serious obstacles
to the real development of a new stage of inter-American cooperation, most of
44
all in the fields of democracy promotion and socio-economic cooperation. Thus,
the OAS has mainly acted as an organization tasked with protecting collective
security in the American area and, from the 1960s onwards, defending human
rights.
Only following a dramatic shift in the international order and some
traumatic events in Latin America did it become possible to enforce the
commitment to democracy set forth in the Charter of Bogotá. The collapse of
the Soviet Union and its satellites in Central and Eastern Europe was crucial in
enabling the drafting of Resolution 1080 of the General Assembly of the OAS, in
1991. The so-called “Santiago commitment” stressed the substantive duty of
democracy entrenched in the Charter, establishing procedural mechanisms for its
enforcement in the case of “sudden or irregular interruption of the democratic
institutional political process or the legitimate exercise of power by a
democratically elected government” in a given Member State. The first OAS
Election Observation Mission dates back to 1990, in Nicaragua.
On 11 September 2001, following the removal of Alberto’s Fujimori’s
(formally legal but in fact) authoritarian regime in Peru, the OAS adopted the
Inter-American Democratic Charter. Any States refusing to sign it would have
been suspended from the OAS (as was Cuba in 1962). In 2005, a subsequent
meeting of the OAS General Assembly – hosted in Fort Lauderdale, Florida –
adopted a Declaration on The Benefits of Democracy. During the last few years,
the OAS has been engaged in cooperation with the African Union for the
promotion of democracy and good governance.
2. Materials and Sources
-
-
Charter of the Organization of American States
(http://www.oas.org/dil/treaties_A41_Charter_of_the_Organization_of_American_States.htm);
The Inter-American Democratic Charter (11 September 2001)
(http://www.oas.org/charter/docs/resolution1_en_p4.htm);
Declaration of Florida: The Benefits of Democracy (adopted at the Fourth
Regular Session of the General Assembly of the OAS, Fort Lauderdale,
Florida, 7-8 June 2005)
(http://www.state.gov/p/wha/rls/47352.htm);
Declarations and Resolutions of the Twenty-First Regular Session of the
General Assembly of the OAS (Santiago, Chile, 3-8 June 1991)
(http://scm.oas.org/pdfs/agres/ag03805E01.pdf);
-
-
45
Resolution of the Thirty-Seventh Special Session of the General Assembly
of the OAS (AG/RES. 2 (XXXVII-E/09), Washington, D.C., 4 July 2009),
Suspension of the right of Honduras to participate in the Organization of American
States
(http://www.oas.org/consejo/GENERAL%20ASSEMBLY/37SGA.asp);
Resolution of the Permanent Council of the OAS (CP/RES. 986
(1806/11), 24 May 2011), Situation in Honduras
(http://www.oas.org/council/resolutions/res986.asp);
Organization of American States, Election Observation Missions of the
Department of Electoral Cooperation and Observation
(http://www.oas.org/es/sap/deco/moe.asp);
Model Inter-American Law on Access to Information
(http://www.oas.org/dil/access_to_information_model_law.htm).
3. Analysis
The Inter-American Democratic Charter seeks to go beyond a purely
international approach, in order to influence the political development of
signatory countries even in the absence of coups or other traumatic events. It
should not be forgotten that the most important factor in the drafting of the
Charter was the breakdown of Alberto Fujimori’s formally legal regime in Peru.
Thus, the Charter sets out how to react to “any unconstitutional alteration or
interruption of the democratic order in a state of the Hemisphere”, a situation that
presents “an insurmountable obstacle to the participation of that state’s
government in the Summits of the Americas process”.
Article 1 of the Charter states that “The peoples of the Americas have a
right to democracy and their government have an obligation to promote and
defend it”. According to Article 3, “Essential elements of representative
democracy include, inter alia, respect for human rights and fundamental freedoms,
access to and the exercise of power in accordance with the rule of law, the
holding of periodic, free, and fair elections based on secret balloting and
universal suffrage as an expression of the sovereignty of the people, the
pluralistic system of political parties and organizations, and the separation of
powers and independence of the branches of government”.
If a member of the OAS fails to uphold these essential elements of
democracy, the Charter allows a Member State or the Secretary General of the
Organization to ask for an immediate convocation of the Permanent Council of
the OAS to consider the facts, deploy diplomatic efforts, or use other forms of
political mediation. To date, the Charter has only been invoked in response to
46
coups in Venezuela (2002) and Honduras (2009). The latter country had its rights
as a Member State suspended between 2009 and 2011. Other developments, e.g.
in Venezuela, have been more difficult to scrutinize in the light of the Charter.
The Declaration of Florida is more interesting for the purposes of global
administrative law. In particular, the Secretary General of the OAS has been
tasked with preparing a review of the implementation of the Inter-American
Democratic Charter since 2001, and devising “proposals for timely, effective,
balanced, gradual initiatives for cooperation, as appropriate, in addressing
situations that might affect the workings of the political process of democratic
institutions or the legitimate exercise of power”. In 2006, the OAS Secretariat for
Political Affairs (SPA) was created in order to promote democracy and good
governance, and to manage political crises in the Americas. The SPA has a
tripartite structure: its internal branches are the Department of Electoral
Cooperation and Observation, the Department of Sustainable Democracy and
Special Missions, and the Department of State Modernization and Governance.
According to the OAS website, the SPA “coordinates the OAS electoral
missions, develops projects to consolidate democratic governance through
cooperative work with legislatures and government, political parties… and civil
society organizations”. It also “provides advice and assistance in the
modernization of electoral laws, civil and electoral registries, and civil
administration”. Finally, it cooperates with the countries in the region in the
management of crisis or post-conflict programmes.
Some other initiatives are worth recalling. The Inter-American Convention
against Corruption of 1996 expressed a strong commitment to “the combating of
every form of corruption in the performance of public functions” as a necessary
condition for representative democracy. A Mechanism for Follow-Up on its
Implementation (MESICIC) has been established. The Secretariat for External
Relations (SRE) has initiated an exchange of contacts and information with
American non-governmental organizations. The OAS Secretariat of Legal Affairs
(SAJ) has elaborated a collection of Recommendations on Access to Information,
which the Inter-American Court of Human Rights has characterized as a
fundamental human right (see the Claude Reyes case of 19 September 2006).
Following this, the Permanent Assembly of the OAS finally adopted a Model
Inter-American Law on Access to Information in June 2010, which contains
guidelines for legislators on the continent.
47
4. Promoting Democracy in the Americas: A Difficult Balance
The Inter-American Democratic Charter has played a crucial role in altering the
balance between promotion of representative democracy in the Americas and the
principle of non-intervention, both of which were founding principles of the
Inter-American System (think, for example, of Woodrow Wilson’s assumptions
about the American system, the Tobar doctrine of non-recognition of
governments installed by coups, and the anti-colonial heritage of the Americas).
The balance has shifted towards the promotion of democracy since the 1990s –
but in a problematic way.
The definition of democracy as a fundamental right and the decision to
treat coups and more subtle threats for democracy equally were very important
innovations. Moreover, democracy became a condition of OAS membership –
which, before the elaboration of the Charter, was much less clear.
Nevertheless, the Charter is remains somewhat vague on what an
“interruption” or an “alteration” of the democratic order is, and provides for
very weak enforcement mechanisms. Perhaps this is an ongoing effect of the
typically international framework in which it was drafted. Another possible
reason for this weakness of the OAS is the difficult coexistence of the United
States and the Latin American countries: the OAS General Assembly, for
instance, recently refused to adopt a proposal, advanced by the U.S., to create a
permanent body to monitor the state of democracy in Member States. That body
could have organized hearings with trade unions and civic groups in order to
collect information on the exercise of public power throughout the Western
Hemisphere. Thus, the organs of the OAS may adopt measures to combat
alterations of the democratic order in a Member State only if the other Member
States ask them to do so.
More encouraging signals can be found in the activity of some of the
internal divisions of the OAS, attempting to put in place the preconditions for
the establishment of democratic regimes by means of consultations with civic
groups, electoral missions, elaboration of model legislation, etc. These trends
seem to indicate that the principle of non-intervention in the internal affairs of
Member States has been significantly eroded.
As some scholars have noted, however, disagreement exists over what sort
of democracy citizens of the American States are entitled to. In the interim, the
international law tools devised in the Inter-American system should be limited to
the hard core of the elements of formal democracy set out in the Inter-American
Democratic Charter. The meaning of democracy was increasingly questioned in
the years after 2001: representative democracy and the independence of the
judiciary were both undermined by the rise of direct, plebiscitary participation
48
and strong elective executives. The actual effectiveness of the Inter-American
Democratic Charter will probably be challenged by the more recent
establishment of other regional organizations, e.g. the Bolivarian Alliance for the
Peoples of Our America or the Union of South American Nations (UNASUR).
Venezuela, which had objected to the characterization of democracy as a
representative regime in the Inter-American Democratic Charter, is the most
prominent member of the former organization. These differing views will
probably be a significant obstacle to full acceptance of the attempts by the OAS
to legalize some kind of democracy.
5. Similar Cases
-
African Charter on Democracy, Elections, and Governance of the African
Union (2007)
(http://www.africaunion.org/root/AU/Documents/Treaties/text/Charter%20on%20Democ
racy.pdf).
6. Further Reading
a.
b.
c.
d.
e.
“The Inter-American Democratic Charter: Charting a course to
irrelevance” 27 January 2011
(http://www.economist.com/blogs/americasview/2011/01/interamerican_democratic_charter);
R. ADAM, “Organizzazione degli Stati americani”, in Enciclopedia del diritto,
XXXI, Milan (1981), p. 164 et seq.;
N. ALLEN, “The Union of South American Nations, the OAS, and
Suramérica”, 1 ILS Journal of International Law 44 (2010);
D.S. BERRY, “Non-Democratic Transitions: Reactions of the OAS and
CARICOM to Artistide’s Departure”, 33 Syracuse Journal of International Law
and Commerce 249 (2005-2006);
M. CAMERON, “The Inter-American Democratic Charter and the
Evolution of Democracy in Latin America: Strengths, Weaknesses and
Recommendations” 9 September 2011
f.
g.
h.
i.
j.
k.
l.
49
(http://blogs.ubc.ca/cameron/2011/09/11/the-inter-americandemocratic-charter-and-the-evolution-of-democracy-in-latin-americastrengths-weaknesses-and-recommendations/);
S. CASSESE, “Global Standards for National Democracies?”, Rivista
trimestrale di diritto pubblico 701 (2011);
E. DANNENMAIER, “Trade, Democracy, and the FTAA: Public Access to
the Process of Constructing a Free Trade of the Americas”, 27 Fordham
International Law Journal 1066 (2004);
E. LAGOS, “Organization of American States”, International Encyclopedia of
Laws – Intergovernmental Organizations;
A.F. PEREZ, “Mechanisms for the Protection of Democracy in the InterAmerican System: Lockean vs. Aristotelian Constitutions”, The Catholic
University of America, Columbus School of Law, Legal Studies Series, WP
no. 2007-2;
T.D. RUDY, “A Quick Look at the Inter-American Democratic Charter of
the OAS: What Is It and Is It ‘Legal’?”, 33 Syracuse Journal of International
Law and Commerce 237 (2005-2006);
S.J. SCHNABLY, “The OAS and Constitutionalism: Lessons from Recent
West African Experience”, 33 Syracuse Journal of International Law and
Commerce 263 (2005-2006);
C. SCOTT, “A Perspective from Honduras’ Civil Society Truth
Commission: Speaking notes for a presentation to the March 9, 2011,
Hearing on Honduras Convened by the Standing Committee on Foreign
Affairs, House of Commons, Canada”
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1788572).
50
VII.A.5 Foreign Aid and Democratization: The Case of Zambia
Giulia Bertezzolo
1. Background
The Republic of Zambia, formerly named Northern Rhodesia, is a landlocked
country in the Sub-Saharan area which covers a territory of 752.614 km2 (making
it bigger than France or Texas) and has, like most African countries, an ethnically
mixed population. It became a democratic republic, independent from the United
Kingdom, on 24 October 1964.
In the aftermath of independence, the economy of Zambia was largely
dependent on foreign aid and expertise.
Despite its considerable mineral wealth, the country’s economy has grown
very little since independence and its governments have struggled to cope with
the strains of both rapid population growth and HIV-related issues on the
economy. Almost 60% of its population still lives below the recognised national
poverty line and 37% is considered in extreme poverty. Life expectancy at birth is
estimated to be around 48 years old.
However, since it benefited from Heavily Indebted Poor Country (HIPC)
status and the Multi-donor Debt Reduction Initiative (MDRI) in 2005 and 2006
respectively, Zambia’s economic management has improved and in 2010 it was
named by the World Bank one of the world’s fastest economically reforming
countries.
Since the 2000s the economy has stabilized, mainly due to foreign
investment in Zambia’s mining sector and higher copper prices on the world
market (copper exports have traditionally been the core business of Zambia).
Notwithstanding the global financial crisis, the economy grew by 6.3% in 2009
and by 7.6% in 2010.
The HIPC and the MDRI initiatives were launched by the World Bank and
the International Monetary Fund (IMF) in 1996 and 2006 respectively to address
the concern that debts accumulated by poor countries during the 1970s and
1980s were undermining poverty reduction efforts. The initiatives call for the
voluntary provision of debt relief by all creditors provided that the developing
51
countries that apply for it demonstrate concrete progress in attaining broad based
socio-economic development goals.
Among the conditions to qualify for the HIPC and the MDRI initiatives is
the requirement for the applying country to have a poverty reduction strategy
(PRS) in place. Country plans for economic and social reforms are set out in a
poverty reduction strategy paper (PRSP), a document prepared by governments
through a participatory process that involves civil society and development
partners, including the World Bank and the IMF.
Besides being a precondition for debt relief under the HIPC and MDRI
initiatives, the PRSP also serves as the basis for concessional lending. It is also
expected to be used as a framework for other donor assistance, with the goal of
coordinating foreign aid spending in the service of the development goals defined
by the strategy.
A key element of the PRSPs when introduced in 1999 was that they would
be country-driven. The aim was to empower governments to set their
development priorities and to push donors to align their assistance around the
priorities of recipient countries rather than their own. From the beginning of the
2000s onwards, this new approach to relations with low-income countries has
been further emphasized, putting developing countries’ commitments to improve
their governance and economy at the centre of all actions concerning poverty
reduction. At the Monterrey meeting of the International Conference on
Financing for Development of March 2002, more than 50 heads of state, along
with representatives of the World Bank, the IMF and the World Trade
Organisation (WTO), agreed on a landmark framework for international action
on global development in which developed and developing countries are called to
take joint action for poverty reduction (the so-called “Monterrey Consensus”).
The Monterrey Consensus is distinguished in particular by its recognition
of the need for developing countries to take responsibility for their own poverty
reduction and the need to involve civil society organizations and other key
national stakeholders in active partnership in order to set each developing
country’s priorities (i.e. the idea of “national ownership”). The idea behind the
principles put forward by the Monterrey conference is that positive outcomes of
development policies depend to a great degree on the potential for domestic
elected bodies and local interest groups to influence the content of the national
strategy and to be involved in its implementation and oversight.
The Paris Declaration on Aid Effectiveness (March 2005) and the Accra
Agenda for Action (September 2008) reaffirmed donor commitments to align
development support with recipient country-defined strategies and priorities.
Moreover, the Accra Agenda deepened the engagement between parties to
52
ensure that the contributions of civil society organizations and other
development stakeholders achieved their full potential.
In keeping with the commitments of the Monterrey Consensus, the IMF
and World Bank review of the PRS approach in 2005 emphasized the need for
institutionalized participation in the political framework and the political process
of a country.
On that occasion, Zambia was presented by the two international
organizations as a positive example for having delivered good results through
civil society involvement in the drafting of its own PRSP.
2. Materials
-
-
-
-
Zambia: Poverty Reduction Strategy Paper, 22 August 2007
(http://www.imf.org/external/pubs/ft/scr/2007/cr07276.pdf);
Zambia: Fifth National Development Plan (FNDP), 2006 – 2010
(http://www.undp.org.zm/joomla/attachments/033_zambia_fndp.pdf?8e
2474a80d13c9785641fc2923161380=wnpfzqni);
UN, The Monterrey Consensus on Financing for Development, 18-22
March 2002
(http://www.un.org/esa/ffd/monterrey/MonterreyConsensus.pdf);
OECD, The Paris Declaration on Aid Effectiveness, 15 March 2005
(http://www.oecd.org/dataoecd/11/41/34428351.pdf);
OECD, The Accra Agenda for Action, 4 September 2008
UN Economic Commission for Africa (UNECA), Economic report 2011.
Governing development in Africa - the role of the state in economic transformation,
Addis Ababa (Ethiopia), 2011
(http://www.uneca.org/era2011/ERA2011_ENG-fin.pdf);
World Bank, World Development report (2011), Conflict, security and
development, Washington DC, 2011
(http://wdr2011.worldbank.org/sites/default/files/pdfs/WDR2011_Full_
Text.pdf);
IMF and World Bank (WB), 2005 Review of the PRS Approach: Balancing
Accountabilities and Scaling Up Results, Washington DC, Sept. 2005
(http://siteresources.worldbank.org/INTPRS1/Resources/PRSPReview/2005_Review_Final.pdf);
Heavily Indebted Poor Country (HIPC) and Multi – donor Debt
Reduction Initiatives (MDRI)
-
53
(http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTDEB
TDEPT/0,,contentMDK:20260411~menuPK:64166739~pagePK:641666
89~piPK:64166646~theSitePK:469043,00.html);
Civil Society for Poverty Reduction, What is CSPR
(http://www.csprzambia.org/);
Civil Society for Poverty Reduction, An Easy Look at Zambia’s Poverty
Reduction Strategy Paper 2002-2004, Zambia, 2004
(http://www.sarpn.org/documents/d0000280/Zambia_PRSP_02-04.pdf).
3. Analysis
International financial support to Zambia dates back to the 1950s. However, past
national plans formulated in the context of foreign aid programmes failed to
deliver positive results for the poor. The country experienced a progressive
economic slowdown, moving from low-middle income status at independence to
being one of the poorest Sub-Saharan countries by the 1990s.
This deterioration in overall wellbeing and the rise in poverty levels
provoked sharp and widespread criticism of the management of foreign aid
programmes. For that reason, when the PRS initiative was launched in 2000 it
was perceived by Zambian civil society as an externally imposed burden with no
prospects of improving living conditions in the country.
A number of political and economic developments subsequently changed,
however, the way in which the initiative was seen. In the months leading up to
the 2001 elections, the incumbent President sought to change the constitution in
order to be allowed to run for a third term. This unpopular move, together with
the serious decline of living standards, led to the mobilization of civil society and
to the creation of many organized groups.
A coordinating association, called Civil Society for Poverty Reduction
(CSPR), was created in order to coordinate civil society groups’ input into the
PRS process. The CSPR is a network of civil society organizations made up of
over sixty non-governmental organizations (NGOs), trade unions and church
groups.
During the two-year planning process of the PRSP for 2002-2004, the
CSPR played a leading role, taking part in the working groups and consultative
forums organized to develop the national strategy paper.
Each key section of the PRSP was drafted by a working group that
included government ministries, NGOs, international organisations and donors,
churches and other relevant organisations. The consultation process has
integrated the views of 21 sector advisory groups (SAGs) made up of
54
government officials, representatives of cooperating partners, and representatives
of civil society organisations. Consultants were also hired to support the work of
the SAGs.
As reported in the Fifth National Development Plan (FNDP), the process
included the preparation of 72 district development plans that were approved by
the respective district level organs. After having been refined, these lower-level
plans were considered and approved by the provincial and district development
coordinating committees. The drafts were discussed at provincial consultation
workshops throughout the country, with local leaders, traditional chiefs, officers,
people working in the development field and individuals.
At the central level, the SAGs, chaired by the respective permanent
secretaries, were given revised terms of reference to enable them playing a
strategic role in the development of the plan.
According to the FNDP, the Ministry of Finance and National Planning,
through its Planning and Economic Management Department (PEMD) –
assisted by a team of consultants, took a leading role in facilitating the overall
PRSP process. A steering committee of permanent secretaries, chaired by the
secretary to the cabinet, oversaw the entire planning process.
As described in the FNDP, after publication, the draft plan and its
implications were discussed in a national stakeholders’ workshop. Based on the
draft and the input from the stakeholders’ conference, the national plan was then
approved by the cabinet and published in 2002.
4. Issues: Can Participation Be an Instrument of Democratization?
Zambia’s PRSP was prepared through an exemplary stakeholder participation
process which led to the successful implementation of development policies. In
the final year of the 2002-2004 PRSP, for example, the government released
100% of the amounts allocated to poverty reduction programs, as opposed to
only 24% and 50% in 2002 and 2003.
What is more, participation has not been a one-off achievement. Civil
society involvement in the PRSP drafting has brought about changes in citizen
awareness of national problems and led to a more active participation in
development policies in general. The CSPR and its members have performed a
watchdog role in monitoring the implementation process. Furthermore, with the
aim of fostering participation in all key policy areas, Zambia has integrated the
principle of participation into national planning mechanisms and documents.
55
Besides representing a good example of economic development and
governance improvement, the case of Zambia offers the opportunity to raise
some general questions on the role of participation in improving democracy.
First of all, as mentioned above, certain historical and social factors have
played an important role in civil society involvement in the drafting of the
Zambia’s PRSP. In the light of this, can participation be considered to be a
general instrument for improving development and governance in developing
countries? To what extent does the effectiveness of civil society participation
depend on the characteristics of an individual country? Are there some features
which can be identified as necessary to make participation work as a useful tool
for promoting development?
Secondly, participation in Zambia’s PRSP process has not been perfect. It
has been pointed out, for example, that the groups included were far from
representative of the whole population, since the most vulnerable members of
society were excluded. Such people have fewer assets and weaker networks
compared to non-poor and power elites in those countries. Moreover, donors
usually prefer to cooperate with well-structured NGOs, instead of dealing with
other social movements. Is the fact that only a segment of society’s interests are
represented though participation in conflict with the concept of democracy? Can
participation in decision-making be considered as an instrument to complement
and increase political participation more generally?
Finally, the formulation of the PRSP through a wide stakeholder
participatory process was a condition imposed on Zambia for accessing
concessional funds from the IMF and the World Bank. Participation rules were
thus set at supranational level and the assessment of civil society involvement in
the decision making process, as well as of the outcomes of the participatory
process, were carried out at the supranational level. Might this create a direct link
between national civil society and international bodies with the potential to
undermine the power of national institutions? Or can participation contribute to
ensuring the independence of developing countries independence from the
interference of donors? If so, what are the conditions for the achievement of that
goal?
5. Further Reading
a.
ACTIONAID, Making aid accountable and effective, Johannesburg (2008)
(http://www.actionaid.org.uk/doc_lib/making_aid_accountable_and_effe
ctive.pdf);
56
b.
c.
d.
e.
f.
g.
W. EASTERLY, Can Foreign Aid Save Africa?, Clemens Lectures Series (Saint
John’s University) 17, December 2005;
W. EBERLEI, Accountability in Poverty Reduction Strategies: The Role of
Empowerment and Participation, Social Development Papers, Paper 104/2007,
May 2007
(http://siteresources.worldbank.org/EXTSOCIALDEVELOPMENT/Re
sources/244362-1164107274725/31823701164201144397/Accountability_in_Poverty_Reduction_Strategies.pdf);
W. EBERLEI, M. PETER and M. FRED (eds.), Poverty Reduction in a Political
Trap? The PRS Process and Neopatrimonialism in Zambia, Lusaka (2005);
INSTITUTE FOR DEVELOPMENT AND PEACE, Participation in International
Development Discourse and Practice, University of Duisburg – Essen, 2008
(http://inef.uni-due.de/cms/files/report94.pdf);
J. SACHS, How aid can work, The NewYork Review of Books, 53, n. 20, Dec.
2006, 1-3;
V. SESHAMANI, The same old wine in the same old bottle? Content, process and donor
conditionalities of the PRSP, University of Zambia, 2005
(http://www.sarpn.org/documents/d0001178/P1307Seshamani_PRSP_March_2005.pdf).
57
VII.A.6 Guaranteeing Electoral Democratic Standards: The Venice
Commission and “The Code of Good Practice in Electoral
Matters”
Valentina Volpe
1. Background
Within the framework of Council of Europe (CoE) standard-setting activities,
more than 200 international treaties have been opened for signature in order to
harmonize the laws and legal systems of its member states in various fields.
Standard-setting through soft-law instruments has also been pursued by a
specialized body of the CoE, the European Commission for Democracy through
Law, better known as the Venice Commission (hereinafter, “the Commission”),
which has made a strong contribution, both outside and within the European
states’ borders, to the promotion of those “ideals and principles which are [the
CoE’s member states] common heritage” (Article 1, Statute of the Council of
Europe).
The Commission functions as the advisory body of the Council of Europe
on constitutional matters. Created in 1990, the Commission’s first aim was to
offer, by acting as a high-level forum for constitutional and legal dialogue,
technical support to the Central and Eastern European states, who were then
facing a delicate phase of democratic transition.
According to the revised Statute, the Commission’s “specific field of action
shall be the guarantees offered by law in the service of democracy”. In particular,
its efforts are aimed at “strengthening the understanding of the legal systems of
the participating states, […] bringing these systems closer; promoting the rule of
law and democracy; examining the problems raised by the working of democratic
institutions and their reinforcement and development” (Art. 1.1). The
Commission must give priority to work concerning “the constitutional, legislative
and administrative principles and techniques which serve the efficiency of
democratic institutions and their strengthening, as well as the principle of the rule
of law; fundamental rights and freedoms, notably those that involve the
participation of citizens in public life; the contribution of local and regional selfgovernment to the enhancement of democracy” (Art. 1.2).
The Commission was established in 1990 as a partial agreement of the
Council of Europe (just 18 members of the CoE participated in its creation).
58
Within a few years, the remaining states of the current 47 members of the
Council of Europe joined the Commission. In 2002, it became an “enlargement
agreement”, thus opening the door to membership for non-European countries
as well. Today, the Venice Commission is much more than a regional actor,
counting among its 58 members many non-European countries as Kyrgyzstan,
Chile, the Republic of Korea, Morocco, Algeria, Israel, Peru, Brazil, Tunisia,
Mexico and Kazakhstan.
Inspired in its work by the pillars of the Council of Europe and principles
of “Europe’s constitutional heritage” (i.e. democracy, human rights and the rule
of law), the three key areas of the Commission’s work relate to: constitutional
assistance; elections, referendums, and political parties; and co-operation with
constitutional courts and ombudspersons. The Commission’s activities, although
primarily focused on co-operation with single states, also includes transnational
activities, comparative studies and international seminars.
Consistent with its origins as a body dedicated to constitutional
engineering, the Venice Commission has since its creation been active in the
electoral field, in particular in assisting many Eastern European states during the
elaboration of their electoral legislation. Typically, national authorities submit
draft laws to the Council’s experts for evaluation before final adoption, in order
to receive advice during the elaboration phase and to reduce the likelihood of
criticism in the course of later monitoring. In this way, expert technical guidance
has helped ensure the consistency of Eastern Europe’s electoral laws with
European standards. Countries like Albania, Armenia, Azerbaijan, Georgia, and
Ukraine have regularly benefitted from the Commission’s assistance.
Since 2002, the active engagement of the Venice Commission in electoral
matters has been confirmed by the creation of the Council for Democratic
Elections (CDE), made up of representatives of the Venice Commission, the
Parliamentary Assembly of the Council of Europe (PACE) and the CoE’s
Congress of Local and Regional Authorities.
The first goal of the Council for Democratic Elections was to adopt a Code
of Good Practice in Electoral Matters, (complemented, since 2007, by a specific
Code of Good Practice on Referendums and since 2008, by a Code of Good
Practice in the Field of Political Parties). This document was intended to define
not only the fundamental standards of the European electoral heritage and
traditional constitutional principles of electoral law, but also the framework
conditions necessary for the implementation of those principles.
59
2. Materials
-
-
-
-
-
-
Venice Commission, Code of Good Practice in Electoral Matters: Guidelines and
Explanatory Report, Opinion no. 190/2002, CDL-AD (2002) 23 rev,
Strasbourg, 23 May 2003
(http://www.venice.coe.int/docs/2002/CDL-AD(2002)023rev-e.asp);
Venice Commission, Interpretative Declaration on the Stability of the Electoral
Law, Study No. 348/2005, CDL-AD(2005)043, Strasbourg, 20 December
2005
(http://www.venice.coe.int/docs/2005/CDL-AD(2005)043-e.pdf);
Venice Commission, Declaration on Women’s Participation in Elections, Study
No. 324/2004, CDL-AD(2006)020, Strasbourg, 13 June 2006
Venice Commission, Revised Interpretative Declaration to the Code of Good Practice
in Electoral Matters on the Participation of People with Disabilities in Elections, Study
No. 584/2010, CDL-AD(2011)045, Strasbourg, 19 December 2011
Committee of Ministers of the Council of Europe, Declaration on the Code of
Good Practice in Electoral Matters, 13 May 2004
(https://wcd.coe.int/ViewDoc.jsp?id=743357);
Venice Commission, Electoral law, Council of Europe Publishing,
Strasbourg (2008);
Venice Commission, Europe’s Electoral Heritage, CDL (2002) 7, Strasbourg,
22 February 2002
(http://www.venice.coe.int/docs/2002/CDL(2002)007-e.asp);
Committee of Ministers of the Council of Europe, Resolution (90)6, On a
Partial Agreement Establishing the European Commission for Democracy through
Law, Statute, 10 May 1990
(http://www.venice.coe.int/site/main/StatuteOld_E.asp);
Committee of Ministers of the Council of Europe, Resolution (2002) 3,
Revised Statute of the European Commission for Democracy through Law, 21
February 2002
(http://www.venice.coe.int/site/main/Statute_E.asp);
Venice Commission, web site
(http://www.venice.coe.int/);
Convention for the Protection of Human Rights and Fundamental Freedoms, CETS
No. 005, Rome, 4/11/1950, (as amended by Protocols Nos. 11 and 14),
Council of Europe Treaty Series, No. 5
(http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/ENG_CONV.pdf);
60
-
Convention on the Participation of Foreigners in Public Life at Local Level, CETS
No. 144, Strasbourg, 5/2/1992
(http://conventions.coe.int/Treaty/en/Treaties/html/144.htm).
3. Analysis
The Code of Good Practice in Electoral Matters (hereinafter, “the Code”) is –
along with the concise “right to free elections” contained in Article 3 of the first
Additional Protocol to the European Convention on Human Rights – the
reference document of the Council of Europe in this area. The Council for
Democratic Elections and the Venice Commission, following an explicit request
by the Parliamentary Assembly, adopted it in 2002.
The Code of Good Practice in Electoral Matters introduces into the CoE
legal framework the concept of “European electoral heritage”. This concept
stems directly from the notion of European Constitutional heritage (Venice
Commission, 1996) and consists of those principles and legal standards shared by
the constitutional traditions of the European countries in relation to electoral
matters. The definition of the “European electoral heritage” has helped to lend
some consistency to the general and often vague concept of “free and fair
elections” adopted in several international instruments.
The “Guidelines on elections” included in the Code are divided into two
sub-sections: the first is dedicated to the “Principles of Europe’s electoral
heritage”, and the second to the “Conditions for implementing these principles”.
The introductory sentence of the Guidelines, which captures the essence of
the European electoral heritage, states that: “[t]he five principles underlying
Europe’s electoral heritage are universal, equal, free, secret, and direct suffrage”,
to which is also added the principle of holding elections at regular intervals.
The universal suffrage rule states that, in principle, “all human beings have
the right to vote and to stand for election” (Art. 1.1). Conditions related to age,
residence, and nationality may be imposed, although the orientation of the
Commission is towards an inclusive idea of democracy not based on a strictly
national electorate. In line with the provisions contained in the Convention on
the Participation of Foreigners in Public Life at Local Level adopted in the CoE
framework in 1992, the Code advises allowing foreigners to vote in local
elections after a certain period of residence (note here that the essentially
“political” right to vote is treated as a human right tout court, enjoyment of which
is not limited, at least at the local level, to citizens alone).
61
According to the Code, the equal suffrage rule entails equality in voting
rights (the “one person-one vote” principle, Art. 2.1); equality of voting power
(seats must be fairly distributed between the various constituencies at least for the
lower house of parliament and for regional and local elections, with a partial
exception for the purpose of protecting national minorities, Art. 2.2); equality of
opportunity (equality before state authorities of candidates, including those with
disabilities, and parties, Art. 2.3); equality and national minorities (parties
representing national minorities must be permitted and can be subject to special
and more favorable rules of representation, Art. 2.4); and equality and parity of
the sexes (if foreseen by a constitutional provision quotas for candidates based on
gender should not be considered in contrast with the principle of equal suffrage,
Art. 2.5).
The rule of free suffrage (Art. 3) has two distinct and interconnected
aspects. On the one hand, it entails the voters’ right to freely form an opinion
before the elections; on the other, it outlines the means of expressing that opinion
through the electoral process. To fulfil the first of these conditions, the Code
imposes a general duty of neutrality on public authorities. The duty of abstention
has particular relevance with regards to the media, billposting, the right to
demonstrate, and funding of parties and candidates, areas potentially prone to the
influence of state authority. The Code further adds a non-exhaustive list of
positive obligations for the state to fulfil in order to allow voters to form their
opinions (e.g. to present the candidatures received to the electorate and to enable
voters to know the lists of candidates standing for elections; this also includes
adequate attention being paid to respecting the linguistic rights of minorities).
In order to ensure that voters are able to express their opinion through the
electoral process, voting procedures must be simple (Art. 3.2.i). The general rule
states that voters should be able to vote in a polling station (postal and electronic
voting should be used only if “safe and reliable”, while postal voting may be
limited to people who are hospitalized or imprisoned and to those electors
residing abroad). Polling stations must include representatives of a number of
parties and the presence of observers must be allowed during both the voting and
counting phases. During the latter, a media presence must be permitted. The
state has a positive obligation to punish any kind of electoral fraud (Art. 3.2.xv).
The fourth element of a democratic election is secret suffrage (Art. 4),
described in the Venice Commission’s Code as “a right but also a duty”, subject
to sanction in case of violation. Voting must be individual, and the exercise of
any form of control by one elector over another must be prohibited.
Furthermore, at least one of the chambers of the national parliament, as well subnational legislative bodies and local councils, “must be elected by direct suffrage”
(Art. 5).
62
The frequency of elections is clearly stated as an element of the European
electoral heritage. Elections must be held at regular intervals, which, for “a
legislative assembly’s term of office must not exceed five years” (Art. 6).
These six articles summarize the interpretation given by the Venice
Commission to “the European electoral heritage”. In the second part, the Code
suggests the necessary “Conditions for implementing these principles” in a more
active way.
The opening article of this second part recognizes “[r]espect for
fundamental rights” as a pre-condition for any viable democracy: “[d]emocratic
elections are not possible without respect for human rights, in particular freedom
of expression and of the press, freedom of circulation inside the country,
freedom of assembly and freedom of association for political purposes, including
the creation of political parties” (Art. 1.a). As in the corresponding provisions of
the European Convention on Human Rights (Arts. 10 and 11, and Art. 2 of
Protocol No. 4), any restrictions of these freedoms must have a basis in law, be
in the public interest, and respect the principle of proportionality.
Article 2 introduces the principle of the “stability of electoral law”. The
explanatory report that accompanies the Code describes the “[s]tability of the law
[as] crucial to [the] credibility of the electoral process, which is itself vital to
consolidating democracy”. Among the possible ways to implement this principle,
the Code suggests the option of enshrining the electoral system within the
Constitution.
However, it would seem that this solution was not universally accepted. Mr.
Lopez Guerra, a member of the Commission, in the initial comments on “le
patrimoine électoral européen”, pointed out that “a Constitution cannot be an electoral
Code”; and, even more interestingly, Georges Vedel, rapporteur at one of the
first UniDem (Universities for Democracy) seminars organized by the Venice
Commission in Istanbul in 1992, warned against the temptation to insert electoral
choices in Constitutions, especially in the case of young democracies: “Il serait
imprudent de donner au choix d’un mode de scrutin, même en principe, une valeur
constitutionnel. […] En raison de l’imprévisibilité’ des résultats conjoncturels et structurels […]
il faut se réserver la possibilité de corriger rapidement les « effets pervers » et donc inattendues du
système mis en place. C’est pourquoi […] il sera sage de laisser le mode de scrutin dans la
compétence du législateur ordinaire”. [“it would be imprudent to imbue the choice of
electoral system with constitutional value, even in principle. Indeed, because of
the unforeseeability of the cyclical and structural results […] it is essential to keep
open the possibility of rapidly correcting any ‘perverse’ and therefore unexpected
effects of the existing system. For this reason, it is wise to leave the electoral
system to the ordinary legislature.”]
63
“Procedural guarantees” complete the conditions for implementation of the
European electoral heritage (Art. 3): i.e. the impartiality of the body organizing
elections and applying electoral law, with specific reference to the central
electoral commission (Art. 3.1); the possibility for national and international
observers to participate in an election observation cycle (Art. 3.2); and the
presence of an effective system of appeal for electoral matters (Art. 3.3).
The Code concludes by stating: “[w]ithin the respect of the abovementioned principles, any electoral system may be chosen” (art. 4).
The Code was approved by the Parliamentary Assembly and the Congress
of Local and Regional Authorities of the Council of Europe in 2003.
The following year, the Code received the solemn endorsement of the
Committee of Ministers, who established the relevance of its standards within the
CoE framework: “[n]oting with satisfaction the adoption by the Venice
Commission of the Code of Good Practice in Electoral Matters and its
subsequent approval by the Parliamentary Assembly and the Congress of Local
and Regional Authorities of the Council of Europe”, the Committee recognizes
“the importance of the Code of Good Practice in Electoral Matters, which
reflects the principles of Europe’s electoral heritage, as a reference document for
the Council of Europe in this area, and as a basis for possible further
development of the legal framework of democratic elections in European
countries”; and “[c]alls on governments, parliaments and other relevant
authorities in the member states to take account of the Code of Good Practice in
Electoral Matters, to have regard to it, within their democratic national traditions,
when drawing up and implementing electoral legislation and to make sustained
efforts to disseminate it more widely in the relevant circles.”
4. Issues: The Delicate Role of Global Technical Bodies in Setting National Democratic
Standards: the Venice Commission between Téchne and Politeia
Since its creation, the Venice Commission has exercised the crucial function of
promoting constitutional harmonisation on the European continent. Particularly
during the transition phase in Eastern Europe, it has, through its constitutional
assistance activities, exercised significant influence over the internal legal orders
of the new member states, and has contributed to spreading standards of
democracy, human rights and the rule of law, based on the notion of the
“European constitutional and electoral heritage”.
Despite its undeniable success in improving the democratic and human
rights guarantees in the assisted countries, the role of the Venice Commission in
64
setting democratic standards, especially in the electoral and constitutional
domains, raises several questions.
Firstly, is it possible to affirm that setting national democratic and electoral
standards is purely a technical matter?
The Venice Commission has always been very careful in presenting its role
as a merely technical one. Those participating in the Commission are
“independent experts who have achieved eminence through their experience in
democratic institutions or by their contribution to the enhancement of law and
political science” (Art. 2, Revised Statute of the Venice Commission).
These elements of expertise and neutrality have been a trademark of the
Commission’s work and a strong component of its success. Nevertheless,
constitutional and electoral matters touch the sine qua non of any democracy, that
is to say, its legal foundation and decision processes. Assisting in the drafting of a
third state’s constitutional and electoral choices, or supervising the process of
adoption of these choices (which implies being in charge of suggesting which
constitutional or legislative solutions to adopt or exclude in a given legal order,
among all the acceptable options), are, by definition, activities that involve more
than mere “legal engineering” skills.
Secondly, is it possible to affirm that the principles and provisions
contained in the Code of Good Practice in Electoral Matters are irrefutable legal
standards?
In several sections, the Code sets forth detailed prerequisites for meeting
the requirements of the European electoral heritage; however, at least two of
these conditions appear more questionable than their presentation as legal
standards would suggest. The requirement of a constitutional provision for
making gender-based quotas legitimate and compatible with the principle of
equal suffrage, and the principle of “stability of electoral law” (in the section
suggesting the suitability of constitutional entrenchment of the electoral system)
are particularly controversial, and find as many critics as supporters among
European legal scholars. Furthermore, very different solutions to these issues can
be found in the national constitutional traditions of CoE member states.
The Code is not merely a catalogue of shared principles in electoral matters
prevailing on the European continent, but it also includes an important element
of de lege ferenda. However, the absence of wider consensus seems problematic in
relation to the Code’s goal of setting out the fundamental standards of the
European electoral heritage, i.e. those “standards recognized” in the European
continent. Is it still possible to speak of minimal, recognized, legal standards in
the absence of a clear, shared position on a given legal problem among the
nations involved, or within the diverse member states’ legal traditions?
65
Finally, is it not a paradox that, since its creation, a technical and nonrepresentative body like the Venice Commission has been charged with setting
constitutional and electoral standards for national governments aspiring to be
democratically accountable?
This is a tricky question. The contemporary tendency has been towards an
increased integration between the global legal space and national legal systems.
Globalization, which is increasingly blurring states’ borders, has made them
progressively more permeable to international and supranational influences,
weakening the classic dogmas of state sovereignty. Democracy stands in an
ambiguous relation to this process. On the one hand, over the course of history,
it developed in the political and legal framework of the nation-state, which
remains today its only viable (although considerably weakened) setting. On the
other hand, since 1989, democracy has acquired, in a “bottom up” process, an
ideal global dimension that has made it an increasingly “universal value” (Sen
1999). Since then, the presence of a democratic form of government has been
recognized as one of the better guarantees of human rights and international
peace, and as a key element of economic development. On this basis, in a “top
down” process, numerous states, international bodies and organizations have
included democracy promotion among their main external goals. This process,
given the absence of a “global scale democracy”, poses theoretical challenges to
classic democratic theory, and in particular to the principles of popular
sovereignty and self-government. Nonetheless, in the case of technical legal
bodies like the Venice Commission, this may be less of a problem in light of at
least two considerations.
First, the approach of the Commission towards public authorities is
typically a non-directive one. Its opinions are not legally binding on national
governments, and are mainly aimed at establishing a “persuasive dialogue”
between international experts and national authorities towards a shared sense of
the best constitutional, or legislative, result.
Second, on the European continent, the democratic principle has always
been interpreted in a counter-majoritarian sense. The “incomplete [democratic]
ideal” (Walker 2010) is enhanced and limited by human rights and rule of law
categories in the understanding of both the CoE and EU (to which their
democracy-promotion activities bear witness).
The Venice Commission seems, like many other technical international
bodies involved in setting democratic standards (especially in the electoral and
constitutional domains), destined to move between the realms of téchne and
politeia. However, the contemporary practice of technical bodies setting global or
regional standards for national authorities does not seem to represent a real threat
to democracy. On the contrary, global bodies, as the Venice Commission’s
66
experience demonstrates, often have the capacity to enhance citizens’
involvement in their own national decision-making processes and to harmonize
different legal traditions, favouring, in the final analysis, the empowerment of the
people.
5. Further Reading
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
S. BARTOLE, “Final Remarks: The Role of the Venice Commission”, 26
Review of Central and East European Law 351 (2000);
F. BENOÎT-ROHMER, H. KLEBES, Council of Europe law: Towards a panEuropean legal area, Strasbourg (2005);
G. BUQUICCHIO, P. GARRONE, “L’harmonisation du droit constitutionnel
européen: La contribution de la Commission européenne pour la
démocratie par le droit”, III Uniform Law Review/Revue de droit uniforme 323
(1998);
G. BUQUICCHIO, P. GARRONE, “Vers un espace constitutionnel commun? Le rôle de la Commission de Venise”, in B. HALLER et al. (eds.), Law in
Greater Europe: Towards a Common Legal Area: Studies in Honour of Heinrich
Klebes, The Hague (2000), p. 3 et seq.;
S. CASSESE, “Global Standards for National Democracies?”, 3 Rivista
trimestrale di diritto pubblico 701 (2011);
A. CHABLAIS, P. GARRONE, “European Commission for Democracy
through Law: Review of Recent Reports and Opinions Relevant to the
Protection of National Minorities”, in EUROPEAN CENTRE FOR MINORITY
ISSUES, THE EUROPEAN ACADEMY BOLZEN/BOLZANO, A. BLOED et al.
(eds.), European Yearbook of Minority Issues, Volume 5, 2005/6, The
Netherlands (2007), p. 305 et seq.;
R.S. DÜRR, “The Venice Commission”, in T.E.J. KLEINSORGE (ed.), Council
of Europe, The Netherlands (2010), p. 151 et seq.;
EUROPEAN COMMISSION, Compendium of International Standards for Elections,
Second Edition, Swede (2007)
(http://www.eulib.com/documents/compendium_en.pdf);
P. GARRONE, “Le patrimoine électoral européen: Une décennie
d’expérience de la Commission de Venise dans le domaine électoral”, 5
Revue du Droit Public 1417 (2001);
P. GARRONE, “The work of the Council of Europe’s Venice Commission
in the electoral field”, 7 Mundo electoral / Electoral World (2010);
(http://www.mundoelectoral.com/html/index.php?id=430);
k.
l.
m.
n.
o.
p.
q.
r.
s.
t.
u.
67
INTERNATIONAL INSTITUTE FOR DEMOCRACY AND ELECTORAL
ASSISTANCE (INTERNATIONAL IDEA), International Electoral Standards:
Guidelines for reviewing the legal framework of elections, Halmstad, Sweden (2002)
(http://www.idea.int/publications/ies/upload/electoral_guidelines-2.pdf );
R. KICKER (ed.), The Council of Europe: Pioneer and guarantor for human rights and
democracy, Strasbourg (2010);
L. LOPEZ GUERRA, Initial comments on “le patrimoine électoral européen”, CDL-EL
(2002) 4, Strasbourg, 26 February 2002
(http://www.venice.coe.int/docs/2002/CDL-EL(2002)004-e.asp);
G. MALINVERNI, “L’expérience de la Commission européenne pour la
démocratie par le droit (Commission de Venise)”, 7 Revue universelle des droits
de l’homme 386 (1995);
G. MALINVERNI, “La réconciliation à travers l’assistance constitutionnelle
aux pays de l’Europe de l’Est: le rôle de la Commission de Venise”, 10 Les
cahiers de la paix 207 (2004);
J. PETAUX, Democracy and human rights for Europe: the Council of Europe’s
contribution, Strasbourg (2009);
A. SEN, “Democracy as a Universal Value”, 10 Journal of Democracy 3(1999);
VENICE COMMISSION, Constitution Making as an Instrument of Democratic
Transition, Proceedings of the UniDem Conference organised in Istanbul on
8-10 October 1992 in co-operation with the Government of the Republic
of Turkey and the Turkish Democracy Foundation, CDL-STD (1992)003,
Science
and
technique
of
democracy,
No.
3
(http://www.venice.coe.int/docs/1992/CDL-STD(1992)003-e.asp);
VENICE COMMISSION, The Constitutional Heritage of Europe, CDLSTD(1996)018, Science and technique of democracy, No. 18, Montpellier,
22-23 November 1996
(http://www.venice.coe.int/docs/1996/CDL-STD(1996)018-e.asp);
VENICE COMMISSION, Guide to the Venice Commission’s Activities and Working
Methods, CDL(2010)109rev. Strasbourg, 31 January 2011, updated 18
January 2012
(http://www.venice.coe.int/docs/2010/CDL(2010)109rev-e.pdf);
N. WALKER, “Constitutionalism and the Incompleteness of Democracy: An
Iterative Relationship”, 39 Rechtsfilosofie & Rechtstheorie 206 (2010).
68
VII.A.7 Democracy and Human Rights: Reciprocally Fostering and/or
Restraining Concepts?
Marco Pacini
1. Background
Founded in 1983, Turkey’s Refah Party obtained 10% of the votes in the local
elections in 1989, 17% in the general election of 1991, 22% in the general
election of 1995, and 35% in the local elections in 1996. As a consequence of
these political successes, members of the Party were elected mayor in the five
main cities and as Members of Parliament, while in 1996 Refah formed a
coalition Government with the centre-right True Path Party. In 1997, the
Principal State Counsel at the Court of Cassation applied to the Turkish
Constitutional Court to have Refah dissolved on the grounds that it was a “centre
of activities contrary to the principles of secularism”. In support of the
application, he referred to acts and remarks by leaders and members of Refah,
who, among other things, i) advocated the wearing of Islamic headscarves in
State schools and public buildings; ii) made proposals for the institution of a
plurality of legal systems, reflecting the variety of religious faiths in the country,
within an overarching framework of general principles; iii) called on all Muslims
to join Refah, claiming that only it could establish the supremacy of the Koran
through jihad; iv) had called in speeches for the secular political system to be
replaced by a theocratic system, to be implemented by eliminating opponents,
where necessary by force.
In 1998, the Constitutional Court ruled that, although Article 69 of the
Constitution, taken together with Article 101 of the Law on the Regulation of
Political Parties, provided that for a political party to be considered a “centre of
activities contrary to the principles of secularism” its members had to have been
convicted of criminal offences, it was nonetheless empowered, following the
repeal of Article 163 of the Criminal Code (which had set out a set of criminal
offences particular to political parties) to dissolve political parties even in the
absence of such convictions. It therefore dissolved Refah on the ground that it
had become a “centre of activities contrary to principle of secularism”, and
stripped the five leaders of the Party of their status as MPs, and banned them
from joining other political parties for five years. In general terms, it held that
secularism was one of the indispensable conditions of democracy, which was
69
safeguarded by the Constitution on account of the country’s historical experience
and the specific features of Islam, and sharia law in particular, which was held
incompatible with democratic principles. The Court also held that the wearing of
headscarfs amounted to exerting pressure on persons who did not follow that
practice, and thus created discrimination on the ground of religion or beliefs; that
instituting a plurality of legal systems would imply dividing society into several
religious movements, in contrast with the principle of judicial unity; and that
Refah were intent on using democratic rights and freedoms in order to replace
the democratic order with a system based on sharia
Alleging that the dissolution of the Party and the temporary prohibition
barring its leaders from holding similar office in any other political party had
infringed their right to freedom of association, the Party and its leaders applied to
the European Court of Human Rights (ECtHR). Article 69 of the Turkish
Constitution provides that “the Constitutional Court shall give a final ruling on
the dissolution of political parties on an application by Principal State Counsel at
the Court of Cassation”, and that “a political party may not be dissolved on
account of activities contrary to [the independence of the State, the integrity of
State territory and of the nation, human rights, the principles of equality and the
rule of law, national sovereignty or the principles of a democratic, secular
republic] unless the Constitutional Court has held that the political party
concerned constitutes a centre of such activities”. According to Article 11 of the
European Convention on Human Rights (ECHR), on the other hand, “everyone
has the right to freedom of peaceful assembly and to freedom of association …
No restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms of
others …”.
-
Constitution of the Republic of Turkey – 7 November 1982
(http://www.anayasa.gov.tr/images/loaded/pdf_dosyalari/THE_CONST
ITUTION_OF_THE_REPUBLIC_OF_TURKEY.pdf);
Constitutional Court of the Republic of Turkey, Judgment 16 January 1998,
no. 1/1998, Party dissolution case (only in Turkish)
(http://www.anayasa.gov.tr/index.php?l=manage_karar&ref=show&actio
n=karar&id=2919&content=);
70
-
-
-
European Convention for the Protection of Human Rights and
Fundamental Freedoms - Rome, 4.XI.1950
(http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/ENG_CONV.pdf);
ECtHR, Third Section, Judgment of 31 July 2001, Application nos.
41340/98 ; 41342/98 ; 41343/98 ; 41344/98, Refah Partisi (The Welfare Party)
and Others v. Turkey
(http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59617) ;
ECtHR, Grand Chamber, Judgment of 31 July 2001, Application nos.
41340/98 ; 41342/98 ; 41343/98 ; 41344/98, Refah Partisi (The Welfare Party)
and Others v. Turkey
(http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-60936).
3. Analysis
Both the Third Section and the Grand Chamber of the ECtHR rejected the
applications on a number of different grounds. Firstly, the power of the
Constitutional Court to dissolve the Refah was “prescribed by law”. Despite the
amendments to the Criminal Code and the Regulation on Political Parties relating
to the notion of anti-secular activities, the power of the Constitutional court to
determine whether a political party constitutes a “centre of anti-constitutional
activities” and consequently to dissolve it were provided for by the Constitution
itself. Moreover, the applicants were able to reasonably foresee that the
Constitutional Court could take action to dissolve the Party. Secondly,
dissolution of the Refah had responded to a “pressing social need”. Given the
votes obtained in the previous election campaigns (from 22% in 1983 up to 35%
in 1996) and the forecasts for the following years (38% in 1997 and 67% in
2001), “at the time of dissolution Refah had the real potential to seize political
power”, which “would have enabled it to establish the model of society
envisaged” in its programme.
Further, the acts and speeches of the Party members were imputable to the
Party itself. Lastly, the contents of these acts and speeches were incompatible
with a “democratic society”, for three reasons. To begin with, “Refah’s proposal
that there should be a plurality of legal systems would introduce into all legal
relationships a distinction between individuals grounded on religion, would
categorise everyone according to his religious belief and would allow him rights
or freedoms not as an individual but according to his allegiance to a religious
movement”. Such a societal model would be incompatible with the ECHR. On
the one hand, “it would do away with the State’s role as the guarantor of
71
individual rights and freedoms and the impartial organiser of the practice of the
various beliefs and religions in a democratic society”; on the other, it would
“undeniably infringe the principle of non-discrimination between individuals as
regards their enjoyment of public freedoms, which is one the fundamental
principles of democracy”. Moreover, “it is difficult to declare one’s respect for
democracy and human rights while at the same time supporting a regime based
on sharia, which clearly diverges from Convention values, particularly with regard
to its criminal law and criminal procedure, its rules on the legal status of women
and the way it intervenes in all spheres of private and public life in accordance
with religious precepts”.
Lastly, the dissolution of Refah was held to be proportionate to the aim
pursued: beyond the fact that dissolution met a pressing social need, many
members of the Party continued to sit in Parliament and pursued their political
career normally, the Party’s assets devolved to the Treasury were very low-valued,
and the limits placed on the political activity of Party leaders was temporary.
4. Issues: Is There a Supranational Concept of Democracy?
The judgment mainly deals with three sets of questions. Firstly, what is the
relation between democracy and political parties? Democracy is a fundamental
feature of the European public order: on the one hand, effective political
democracy is understood as conducive to the maintenance and further realization
of human rights, while the ECHR was designed to maintain and promote the
ideals and values of a democratic society; on the other hand, restrictions upon
most rights and freedoms enshrined in the ECHR are only admissible in so far as
they are “necessary in a democratic society”. A major role in a democratic society
is played by political parties: they are a form of association essential to the proper
functioning of democracy. More specifically, political parties are often the only
bodies that can accede to power, thus having the capacity to influence the entire
regime in their country, including implementing an overall societal model that
they have put before the electorate. Democracy cannot exist without pluralism:
and, in view of their essential role in ensuring pluralism and the proper
functioning of democracy more generally, political parties are entitled to freedom
of opinion and freedom of assembly and association. So, are democracy and
human rights always on the same side? Under what circumstances should
democracy be restricted to protect human rights? And, conversely, when should
human rights to be restricted in order to protect democracy?
Secondly, is it always possible to reconcile democracy and religion within
the State? Following the ECtHR, freedom of religion is one of the foundations of
72
“democratic societies”. In democratic societies, in which several religions coexist,
it may be necessary to place restrictions on the freedom of religion in order to
reconcile the interests of the various groups and ensure that everyone’s beliefs are
respected. In this context, the role of the State is that of neutral and impartial
facilitator of the exercise of various religions, faiths and beliefs. In Turkey, the
principle of secularism is one of the fundamental principles of the State; and this
is seen as consistent with the rule of law and respect for human rights and
democracy. Therefore, any position that fails to respect that principle will not
necessarily be protected under the freedom of religion. In order to fulfil its
function, the state may decide to impose on current or future civil servants (who
will wield a portion of its sovereign power) a duty to refrain from participating in
Islamic fundamentalist movements whose goal and plan of action is to establish
the pre-eminence of religious rules. But what is intended by secularism? And how
– if at all – does it differ from the French notion of laïcité? In any event, are not
both philosophical beliefs? If so, why should they not be placed on the same
level as religious belief? Why should a State, in its role as a neutral-and-impartialfacilitator, give precedence to secularism over religion beliefs?
Thirdly, under what conditions and to what extent are restrictions upon
political parties admissible? According to the ECtHR, one of the principal
characteristics of democracy is the possibility it offers of resolving a country’s
problem through dialogue, without recourse to violence. Therefore, there can be
no justification for placing restrictions on a political association simply because it
seeks to debate in public the situation of a part of the State’s population, or to
participate in the political life of the nation in order to find, according to
democratic rules, solutions capable of satisfying everyone concerned. In this
sense, as the ECtHR notes, “a political party animated by the moral values
imposed by a religion cannot be regarded as intrinsically inimical to the
fundamental principles of democracy” as set forth in the ECHR. Nonetheless, a
political party may promote a change in the law or the legal and constitutional
structures of the State only on two conditions: “firstly, the means used to that
end must in every respect be legal and democratic, and secondly, the change
proposed must itself be compatible with fundamental democratic principles”. To
what extent is a democratically elected party permitted to modify the democratic
nature of a State? What are these “fundamental democratic principles” which
cannot be overturned even by democratically elected parties? Does a
transcendent and universal model of democracy exist, or are there rather as many
concrete and particular models as there are democratic States?
73
5. Further Reading
a.
b.
c.
d.
e.
f.
O. AKBULUT, “Criteria Developed by the European Court of Human
Rights on the Dissolution of Political Parties”, 34 (1) Fordham International
Law Journal 46 (2010);
P. HARVEY, “Militant democracy and the European Convention on Human
Rights”, 29 (3) European Law Review 407 (2004);
Y. KTISTAKIS, “Religious pluralism and tolerance in a (European)
democratic society”, 2 Annuaire international des droits de l’homme 253 (2007);
M.L.P. LOENEN, J.E. GOLDSCHMIDT (eds.), Religious Pluralism and Human
Rights in Europe: Where to Draw the Line?, Oxford (2007), p. 81 et seq.;
D. MCGOLDRICK, “Multiculturalism and its Discontents”, 5 (1) Human
Rights Law Review 27 (2005);
S. SOTTIAUX, “Anti-democratic associations: content and consequences in
article 11 adjudication”, 22 (4) Netherlands quarterly of human rights 585 (2004).
74
VII.A.8 UN Transitional Administrations: Kosovo, East Timor and Iraq
Elisabetta Morlino
1. Background
The concept of UN “direct administration” has been defined as the “governance
of a territory by an external entity on the authority of the United Nations Security
Council” [De Wet, 292]. The concept contains two terms, and thus comprises
both “directness” (in the sense of direct applicability to the domestic legal order
of decisions taken by an external entity), and “administration” (not to be
interpreted technically as distinct from the legislative and judicial branches, but
much more comprehensively as encompassing “lawful control over the affairs of
a political unit (as a nation)” [Webster’s Third New International Dictionary,
Unabridged, under the heading “administration”]). Such administrative power
can either be assigned in toto to the international entity or shared with local
institutions (commentators have spoken respectively of administration and coadministration in this regard). The adjectives “interim” or “transitional”, which
often accompany “administration” in this setting, refer to its temporary character,
as set out in the relevant international mandate (where one exists).
In the international arena, the evolution and practice of territorial
administration has gone through three phases, which can be distinguished from
each other on the basis of the type of administration established and the means
by which this was carried out.
a) The first phase. This initial stage ran from the immediate aftermath of the First
World War to the beginning of the Second World War. Examples from this
period are mainly (but not exclusively) connected to the outcomes of the
Versailles Treaty. Two examples, both ascribable to the League of Nations, are
particularly significant. From 1920 until 1935, in accordance with the Treaty of
Versailles, the League of Nations administered the Saar Territory. A specific
commission composed of representatives of both France and Germany was
entrusted with the government of the territory and vested with limited
administrative, legislative and (indirect) judicial competences. On the
administrative side, the Commission had “all-the powers of government […]
including the appointment and dismissal of officials, […] the creation of such
administrative and representative bodies as it may deem necessary”, and was
75
responsible for the operation of public services. With regard to the legislative
capacity, despite the fact that the territory legally remained under German
sovereignty and that the applicable laws and regulations were those already in
force in 1918, the Commission could, if necessary, introduce modifications after
consultation with the elected representatives of the inhabitants. Finally, the
judicial system was reorganized so that the existing civil and criminal courts were
maintained, but the Governing Commission had the power to establish and
manage a civil and criminal court to hear appeals from the lower local courts and
to decide matters for which these courts were not competent. The rights and
liberties of citizens were maintained and remained actionable in front of the
courts.
The Free City of Danzig was another example of early direct international
administration. After the First World War a dispute arose over this territory
between Germany and Poland. In signing the Treaty of Versailles, Germany
renounced all rights and title over the area in favour of the League of Nations.
Danzig was “free”, but under the protection of the League of Nations. The
distribution of powers was tripartite, between the Free City of Danzig, Poland
and the League of Nations. The main administrative and legislative powers were
granted to the Free City authorities. A Constitution was to be drawn up by
representatives of the Free City in agreement with a High Commissioner of the
League of Nations. The Polish Government was in charge of the foreign
relations of the City as well as of the diplomatic protection of its citizens; it had
also the right to improve infrastructures for postal, telegraphic and telephonic
communications. The League of Nations, apart from the administrative powers
explicitly directed at protecting and maintaining the “free” status of the city,
enjoyed legislative and some judicial powers. In conjunction with local actors, it
drafted the Constitution, and guaranteed it by retaining a veto power over future
amendments. Furthermore, the High Commissioner had the competence to settle
all disputes that could arise between Poland and the Free City of Danzig
regarding the interpretation of the Treaty and linked agreements. This last
function had a purely “international” character as the judicial function still
remained rooted in local courts.
The history of international relations before the Second World War
contains several other cases of territorial administration exercised by international
organizations. For example, the League of Nations administered the Colombian
town and city of Leticia between 1933-1934, and intervened in the formation of
governing institutions in Upper Silesia (appointing the president of the Upper
Silesia Mixed Commission in 1922) and in Lithuania (appointing the chair of the
Memel Harbor Board).
76
This first period of territorial administrations was thus characterized by the
acquisition by the League of Nations of limited powers: particular activities
within the civil administration were attributed to the international body, and
these usually remained narrowly defined as those necessary to protect or maintain
the status quo as established by a treaty. The legislative power was either exercised
at the margins of an already existing body of norms, or related to the very basis
of the legislative system itself (the Constitution), but in the latter case the process
of norm-formulation was shared with local authorities. Finally, judicial power was
never completely displaced from the national to the international level: local
courts remained the primary source of the administration of justice. Overall,
then, the three basic branches of government not concentrated in the same
hands; instead, they were fragmented, divided between different levels of
government over which the international body maintained only a supervisory
authority.
b) The second phase. The second period of international territorial administrations
was between the end of the Second World War and the late 1980s, with the
disintegration of the Communist block and the end of the Cold War. The
creation of the United Nations and the provisions on trusteeships contained in
Article 77 of the UN Charter made possible the involvement of the international
community in the administration of former colonies. In 1947, the Marshall,
Caroline, and Mariana Islands, formerly mandated to Japan, were placed under
the UN trusteeship system. Iran Jaya was administered by the United Nations
between 1962 and 1963 through the establishment of a United Nations
Temporary Executive Authority. This body was in charge of the transition from
Dutch colonial rule to Indonesian control, pursuant to an agreement between
Indonesia and the Netherlands. Between 1960 and 1964, the UN was present in
the Congo in order to fill a governmental vacuum. The UN Operation in the
Congo (UNOC) directly performed governmental – but not judicial – functions,
interpreting broadly a mandate which was originally only to provide technical
assistance. Finally, although authorized to administer Namibia, the UN failed to
do so due to the South Africa’s refusal to allow entry into the Namibian territory.
When later, in 1988, the UN Transitional Assistance Group (UNTAG) entered
Namibia, it limited itself to supervising and controlling the elections.
In this second phase, the role of the United Nations was therefore
grounded in the Charter, usually regulated by an agreement with the states
involved and typically amounted only to general supervision, while the actual
governance was carried out by the state granted the trusteeship.
77
c) The third Phase. It was after the end of the Cold War that a major change
occurred in the way of conceiving and performing temporary governmental
functions in member states. Since the beginning of the 1990s, the UN has
engaged in a third wave of interim territorial administrations whose
characteristics have differed substantially from previous ones, in particular that
they have included “substantial civil administration, including the administration
of justice and the rule of law” [Abraham]. In 1991, UN forces were authorized by
the Security Council to exercise administrative functions in Cambodia (from 1991
to 1992) and Western Sahara (never performed). In particular, the Agreement on
a Comprehensive Political Settlement of the Cambodia Conflict entrusted the
UN Transitional Authority in Cambodia (UNTAC) with key aspects of civil and
military administration. In 1993, the Security Council endowed the United
Nations Operation in Somalia II with a broad mandate which included the
reconstruction of the Somali police and justice system, the establishment of
regional councils, and the maintenance of law and order. Following the Basic
Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium (15
November 1995), in 1996 the Security Council approved a Resolution that
created the UN Transitional Administration for Eastern Slavonia (UNTAES).
The political objective was to prepare the local population for the full transfer of
authority to Croatian rule; for this purpose, UN bodies were put in charge of a
temporary police force, of the civil administration, and of public services.
The late 1990s witnessed an even greater expansion of functions of UN
interim administrations. Following the NATO bombing of the former
Yugoslavia, the Security Council authorized the establishment of a UN Interim
Mission in Kosovo (UNMIK) and put in place an “interim administration to
provide transitional administration while establishing and overseeing the
development of provisional democratic self-governing institutions” [Security
Council Resolution No. 1244 (1999), 10 June 1999, U.N. Doc.
S/RES/1244(1999), Annex 2, para.4]. A few months later, the Security Council
created a transitional administration in East Timor (UNTAET), entrusted with
similar powers. According to its mandate, the UN bodies were to provide
security, maintain law and order, establish an effective administration, and assist
in the development of civil and social services. Finally, in Iraq the Security
Council vested the Coalition Provisional Authority (CPA) with the tasks of
“promot[ing] the welfare of the Iraqi people through the effective administration
of territory, including in particular working towards the restoration of conditions
in which the Iraqi people can freely determine their own political future”
[Security Council Resolution No. 1483(2003), 22 May 2003, U.N. Doc.
S/RES/1483 (2003), para. 4].
78
The third wave operations – especially those carried out from the end of
the 1990s onwards – therefore involve not just merely individual elements of civil
administration, but rather have an all-encompassing approach to the different
aspects of governance. As made clear, in the Brahimi report, when such an
interim administration is established “no other operations must set or enforce
law, establish customs services and regulations, adjudicate property disputes and
liabilities for war damage, reconstruct and operate all public utilities, create a
banking system, run schools and pay teachers and collect the garbage […]. In
addition to such tasks, these missions must also try to rebuild civil society and
promote respect for human rights” [Panel on United Nations Peace Operations,
Report of the Panel on United Nations Peace Operations, 21 August 2000, A/55/305S/2000/809, 21 August 2000, para. 75].
Within this category of operations, however, a further distinction can be
drawn. Notwithstanding the wide number of functions performed, the room left
to local actors differs. While for the first operations (such as the UNTAC in
Cambodia, the UNSOM II in Somalia, and the High Representative in BosniaHerzegovina), the UN involvement existed alongside a domestic government still
possessing autonomous decision-making power in certain areas, the later
missions (the UNTAES in Eastern Slavonia, the UNMIK in Kosovo, the
UNTAET in East Timor, and the CPA in Iraq) can be characterized as “fullyfledged direct administrations” [De Wet, note 3, 297] with a barely inexistent role
left to local actors (the Iraqi case was even more peculiar, in that the fully-fledged
administration was delegated by the Security Council to two member states). In
this regard, some authors have referred to “co-administration” and “fully-fledged
administration”, respectively.
2. Materials: Norms and Relevant Documents
2.1.
-
General
Security Council Resolution No. 1037 (1996), 15 January 1996, U.N. Doc.
S/RES/1037(1996)
(http://daccess-ods.un.org/TMP/7792567.01469421.html);
Security Council Resolution No. 1244 (1999), 10 June 1999, U.N. Doc.
S/RES/1244(1999)
(http://daccess-ddsny.un.org/doc/UNDOC/GEN/N99/172/89/PDF/N9917289.pdf?Open
Element);
-
-
-
2.2.
-
-
-
-
79
Security Council Resolution No. 1272 (1999), 25 October 1999, U.N. Doc.
S/RES/1272(1999)
Element);
Security Council Resolution No. 1483 (2003), 22 May 2003, para. 4, U.N.
Doc. S/RES/1483 (2003)
Element);
Panel on United Nations Peace Operations, Report of the Panel on United
Nations Peace Operations, 21 August 2000, A/55/305-S/2000/809, 21 August
2000, para. 75
(http://www.un.org/peace/reports/peace_operations/).
Kosovo
Report of the Secretary-General on the United Nations Interim
Administration in Kosovo, 12 July 1999, U.N. Doc. S/1999/779
Element);
Regulation No. 1999/1 on the Authority of the Interim Administration in
Kosovo, 10 June 1999
(http://www.pict-pcti.org/courts/pdf/kosovo/Re1999_1.htm);
Ombudsperson Institution in Kosovo, Elife Murseli against The United
Nations Missions in Kosovo, Registration No. 122/01, 10 December 2001,
para. 37-49
(http://www.ombudspersonkosovo.org/?cid=2,4&date=2001-00-00);
Ombudsperson Institution in Kosovo, Special Report No.1 on the Compatibility
with Recognized international standards of UNMIK Regulation No. 47/2000 of 26
April 2001
(http://www.ombudspersonkosovo.org/repository/docs/E4010426a.pdf);
Ombudperson Institution in Kosovo, First Annual Report 2000-2001, 18
July 2001, Annex I
Ombudperson Institution in Kosovo, Second Annual Report 2001-2002, 18
July 2002, Annex I
80
-
-
-
2.3.
-
-
-
OSCE Report, Review of the Criminal Justice System, September 2001-February
2002;
OSCE Report, Review of the Criminal Justice System, March 2002-April 2003
UNMIK Regulation No. 2000/64, On Assignment of International
Judges/Prosecutors and/or Change of Venue, U.N. Doc. UNMIK/2000/64
(2000)
(http://www.unmikonline.org/regulations/2000/reg64-00.htm);
UNMIK Regulation No. 2001/18 On the Establishment Of A Detention Review
Commission For Extra-Judicial Detentions Based On Executive Orders.
(http://www.unmikonline.org/regulations/2001/reg18-01.pdf);
UNMIK Regulation No. 1999/24, para. 2, as amended by UN Doc.
UNMIK/REG/2000/59 (2000)
UNMIK, Regulation N. 2001/9, U.N. Doc. UNMIK/REG/2001/9 (2001)
UNMIK Regulation No. 2000/47, On the Status, Privileges and Immunities of
KFOR and UNMIK and their Personnel in Kosovo, U.N. Doc.
UNMIK/REG/2000/47
(2000)
UNMIK Regulation No. 2000/38, 30 June 2000, U.N. Doc.
UNMIK/DOC/2000/38
(http://www.unmikonline.org/regulations/2000/reg38-00.htm).
East Timor
Amnesty International, East Timor: Justice Past, Present and Future, Report, 27
July 2001, AI-Index ASA 57/001/2001 at 31
(http://www.amnesty.org/en/library/info/ASA57/001/2001);
UNTAET, Regulation No. 1999/1 On the Authority of the Transitional
Administration in East Timor, U.N. Doc. UNTAET/REG/1999/1 (1999),
entered into force 25 October 1999
(http://www.un.org/en/peacekeeping/missions/past/etimor/untaetR/etr
eg1.htm);
UNTAET Regulation No. 2000/17, 8 June 2000, U.N. Doc.
UNTAET/REG/2000/17
(http://www.unmit.org/legal/UNTAETLaw/Regulations%20English/Reg2000-17.pdf);
UNTAET Regulation No. 2000/19, 30 June 2000, U.N. Doc.
UNTAET/REG/2000/19
-
-
-
-
2.4.
-
81
UNTAET Regulation 2000/34, 16 November 2000, U.N. Doc.
UNTAET/REG/2000/34
U.N. Security Council, Report of the Security Council Mission to East Timor and
Indonesia, 9-17 November 2000, S/2000/1105
U.N. Secretary-General, Report of the Secretary-General on the United Nations
Transitional Administration in East Timor, U.N. Doc. S/2000/53, 26 January
2000
Element);
U.N. Secretary General, Report of the Secretary-General on the United Nations
Transitional Administration in East Timor, U.N. Doc. S/2001/983, 18 October
2001
U.N. Secretary-General, Report of the Secretary-General on the United Nations
Transitional Administration in East Timor, U.N. Doc. S/2001/42, 16 January
2001
(http://daccess-ddsny.un.org/doc/UNDOC/GEN/N01/213/11/IMG/N0121311.pdf?Open
Element).
Iraq
Coalition Provisional Authority, Regulation No.1, 16 May 2003, Sect. 1.2
(http://www.iraqcoalition.org/regulations/index.html#Regulations);
Coalition Provisional Authority, Historical Accomplishments
(http://www.iraqcoalition.org/pressreleases/20040628_historic_review_cp
a.doc);
Coalition Provisional Authority, Order No. 13, 22 April 2004
(http://www.iraqcoalition.org/regulations/index.html#Regulations);
Coalition Provisional Authority, Order No. 17, 26 June 2003
Coalition Provisional Authority, Order No. 48, Appendix A, The Statute of the
Iraqi Special Tribunal
Coalition Provisional Authority, Order No. 98, Iraqi Ombudsman for Penal
and Detention Matters, 27 June 2004
82
-
Amnesty International, Iraq. Memorandum on concerns relating to law and order,
23 July 2003, Sec. 7
(http://www.amnesty.org/en/library/info/MDE14/157/2003).
3. Analysis
The focus of the analysis will be on the most recent of the phases outlined above,
and in particular on those missions that gave rise to the strongest accountability
concerns, both as a result of the wide range of powers conferred on the
international administrations in question, and of their strategic political
importance more generally: the UNMIK, the UNTAET, and the CPA. The
following sections will analyse two basic features that were peculiar to these
missions: the unification of powers and immunity.
3.1. The Convergence of Legislative, Administrative and Judicial Powers
Interim Administrations in Kosovo, East Timor and Iraq have been
characterized by the presence of a single UN authority vested with legislative,
executive and judicial powers.
a) Kosovo. The UNMIK assumed responsibility for all three of these functions.
Security Council Resolution 1244 (1999) states that the objective of the mission is
“to establish an international civil presence in Kosovo in order to provide an
interim administration for Kosovo under which the people of Kosovo can enjoy
substantial autonomy within the Federal Republic of Yugoslavia, and which will
provide transitional administration while establishing and overseeing the
development of provisional democratic self-governing institutions […]” [Security
Council Resolution, 1999, para. 10]. The mandate comprises “all legislative and
executive powers, including the administration of the judiciary” [U.N. Doc.
S/1999/770, para. 35]. Regulation No.1999/1 on the Authority of Interim
Administration in Kosovo clarifies the means through which this should be
realized. The Special Representative of the Secretary-General (SRSG) has “all
legislative and executive authority with respect to Kosovo, including the
administration of the territory”. He in turn may appoint “any person to perform
functions in the civil administration, including the judiciary, or remove such
person” [UNMIK Regulation No. 1999/1, Section 1, para. 1 and 2]. The power
83
to organize the administration as a whole, then, was vested in the SRSG; and the
legislators, civil servants and judges were accountable to him.
The UNIMIK itself is the major source of the law in the area. In the
performance of its duties it issues legislative acts in the form regulations.
Moreover, the relations among sources of law are settled in such a way as to give
preference to the UNMIK regulations: previously existing laws are applicable
only insofar as they do not conflict with the mission’s objectives and regulations,
and with the internationally recognised human rights standards embodied in
Regulation No. 1999/1. Furthermore, the lack of attempts on the part of the
Security Council to give concrete meaning to these abstract principles left the
UNMIK room for interpretation and discretion.
The SRSG also has control over the appointment and functioning of the
judiciary. By the end of December 1999, the SRSG appointed over three hundred
local judges and prosecutors. In February 2000, following the occurrence of
demonstrations and other incidents in Mitrovica, the SRSG signed a regulation
authorizing the appointment of international judges and prosecutors. Although
“the[se] judicial appointments are aimed at easing pressure on the fledgling local
judiciary in order to prosecute quickly those suspected of inflaming violence in
Mitrovica” [UNMIK News Coverage Archives, February 2000] (although later
the appointment of international judges was no longer limited to the district of
Mitrovica), the regulation raises concerns related to the institutional as well as
functional independence of the judges. As made clear by the OCSE Review of the
Criminal Justice System in Kosovo, effective institutional autonomy implies that
“the exclusive functions of the judiciary are exercised by office-holders who
enjoy extensive and well-defined guarantees concerning appointment to and
removal from office, disciplinary accountability, and rules of case assignment”;
while “the principle of functional independence of the judiciary is based on the
idea that various state organs possess specific and exclusive competencies, and
thus, that non-judicial bodies can neither exercise nor interfere with judicial
functions”. The test for functional independence is mainly empirical: “the real
test of independence, beyond the legislative guarantees, is the practical interaction
between executive or legislative organs and the judiciary”.
The UNMIK has failed to ensure institutional independence for the
judiciary in Kosovo in at least three respects. First, international judges and
prosecutors are directly recruited and contracted by UNMIK within the regular
UN employment framework. This equates them to UN civil employees, giving
the executive authority ultimate control over the extension of contracts and the
power to sanction the judges for their decisions. Second, removal from office can
be justified on indeterminate grounds, such as “serious misconduct” and “failure
in the due execution of office”. Judges accused of such behaviour are not even
84
given the possibility of being heard by the SRSG before the removal decision is
taken. Third, according to UNMIK Regulation No. 2000/64, cases are not
assigned randomly, but upon approval of the SRSG.
Moreover, the UNMIK has not always ensured functional independence.
Independence of the judiciary “primarily entails that the executive and the
legislative authorities cannot give binding instructions to the courts in the
exercise of their functions”. The OCSE has pointed out that, on several
occasions, UNMIK has been guilty of excessive interference in the
administration of justice in this regard. Indeed, there have been incidents of both
executive interference (for example, the SRSG has issued Executive Orders
overriding judicial decisions) and legislative interference (UNMIK regulations
have, for example, deliberately changed the status of a criminal case pending
before a court). Furthermore, UNMIK Regulation No. 1999/24 on the Law
Applicable in Kosovo establishes a close link between the executive and the
judges, encouraging the former to request clarifications on implementation issues
from the SRSG.
Finally, the administrative bodies are appointed and supervised by UN
authorities. As noted above, UNMIK Regulation No. 1999/1 vests the SRSG
with the power of “appoint[ing] any person to perform functions in the civil
administration in Kosovo [...] or remove such person”. The administration in the
territory was initially carried out through a Joint Interim Administrative Structure
(JIAS) which was in place from February 2000 until May 2001, when the newly
promulgated Constitutional Framework for Provisional Self-Government
established the Provisional Institutions of Self-government (PISG). In general,
the administrative branch has been structured around two levels: the centre
(including the SRSG and his office; the oversight and advisory organs
representing Kosovo’s institutions and political groups, i.e., before May 2001, the
Interim Administrative Council (IAC); and all the Pristina-based administrative
departments) and the municipalities (which include the UNMIK municipal
administrators, the administrative councils representing local institutions and
parties, and the administrative boards responsible for local services). The SRSG
has final supervisory authority over the central and municipal bodies both in
terms of their formation and their operation, even with respect to those bodies
whose composition is mixed (comprising both UN and local officials) or where
the majority of members are local. In this regard, Chapter 12 of the
Constitutional Framework for Provisional Self-Government in Kosovo provides
that the SRSG has the authority to “overse[e] the Provisional Institutions of SelfGovernment, its officials and its agencies, and tak[e] appropriate measures
whenever their actions are inconsistent with UNSCR 1244(1999) or this
Constitutional Framework”. Furthermore, the police service remains solely a
85
UNMIK responsibility. The executive branch is highly centralized: its
organization is based on a strictly top-down conception of authority, which has
led to several objections, especially from local leaders..
b) East Timor. Despite the fact that the strong criticisms of the UNMIK mission
led UN authorities to adopt a more cautious approach in East Timor (especially
with regard to ensuring greater participation by the local population), the overall
governance framework the latter case was based on the UNMIK model, and led
to a similar concentration of powers in UN hands.
UNTAET Regulation No.1999/1 On the Authority of the Transitional
Administration in East Timor provided that “[a]ll legislative and executive
authority with respect to East Timor, including the administration of the
judiciary, is vested in UNTAET and is exercised by the Transitional
Administrator”..
Similarly to the UNMIK, the Transitional Administrator issued legislative
acts in the form of regulations. These remained in force for the length of the
transitional period (unless repealed by the Administrator himself). The
rulemaking procedures contemplated the consultation of local actors, but often
that participation was often cursory and had no relevant impact. The members of
the National Consultative Committee – later the National Council – were chosen
by the SRSG from among a restricted elite of East Timorese. Their role was
limited to the review of draft regulations produced by the UNTAET; however, it
seems that, in practice, this review never led to any substantial changes to a
proposal prior to the adoption of the final legislative act. The body of applicable
law was a complex hybrid system of old laws within the framework of new
UNTEAT regulations. In this regard, Section 3.1 of Regulation No. 1999/1
provided that “the laws applied in East Timor prior to 25 October 1999 shall
apply in East Timor insofar as they do not conflict with the standards referred to
in section 2, the fulfilment of the mandate given to UNTAET under United
Nations Security Council Resolution 1272 (1999), or the present or any other
regulation and directive issued by the Transitional Administrator” (emphasis added).
The functioning and organization of the judiciary was also left to the
UNTEAT. The SRSG appointed the first judges, prosecutors and public
defenders on 7 January 2000 for a period of two years. The decision to choose
nationals and to keep them in place for a pre-determined period was, however,
only a partial solution to the criticisms levelled at the Kosovo approach. The
preference for locals also had negative consequences in terms of the
independence of the judiciary. “The total absence of local capacity in this area”
(few Timorese had a degree in law and none of them had any prior experience of
working in the judicial or prosecutorial services) implied the need for training
86
from UN authorities and assistance from the UN CIVPOL. Police prosecutors
“mentored” the local prosecutors by guiding them and showing them how to
deal with their cases. Later, a separate mentoring program was formally
established (although never implemented as designed). And the pre-determined
period in office of two years did nothing to weaken the authority of the SRSG
over the judiciary. The Transitional Administrator retained the power of
appointing and removing judges, as well as of renewing their mandate upon
expiry. Similar concerns on the concrete links between the two branches of
government, the executive and the judiciary, and on the influence of the former
over the latter, can be expressed equally well in relation to UNTAET as to the
UNMIK. In this regard, the attempt to promote the participation of local actors
was a smaller achievement than it is usually thought to be, because it multiplied
the means of intervention and justified them on the grounds of the apparent lack
of capacity of the local professionals entrusted with judicial powers.
Finally, the UNTAET was responsible for public administration. It’s
objective in this regard was to create the administrative structures necessary to
implement public policy and to deliver essential services in main areas, such as
health, agricultural and economic policy, taxation, road repairs, water and
electricity. For these purposes the Transitional Administrator enjoyed ultimate
institutional and functional authority over the different branches of the
bureaucracy. By September 2001, the UNTAET had recruited around 9,500 East
Timorese civil servants and conducted seminars, workshops and courses with the
aim of training them. Furthermore, by the end of 2001, the civil administration
was still “highly reliant on international staff in both advisory and line positions”
and greatly dependent on UNTAET support. Finally, the Transitional
Administrator retained ultimate authority over the removal of judges.
c) Iraq. This centralization of powers is a characteristic feature of the Iraq
transitional administration as well. The Coalition Provisional Authority (CPA)
was the body who exercises government powers during the transitional period.
Regulation No.1 of the Coalition Provisional Authority of 16 May 2003 adopting
the same comprehensive formulation used for the UNMIK and the UNTAET
mandates: “[t]he CPA is vested with all executive, legislative and judicial authority
necessary to achieve its objectives, to be exercised under relevant U.N. Security
Council resolutions, including Resolution 1483 (2003), and the laws and usages of
war. This authority shall be exercised by the CPA Administrator”.
The legislative authority given to the CPA allowed it to design the
institutions of government, as well as to have a direct impact on citizens. It was
able to issue two kinds of legislative acts: Regulations and Orders (both of which
required the approval and signature of the Administrator). Through Regulations,
87
the CPA defined its institutional structures and powers. Orders, on the other
hand, are binding instructions or directives addressed to the Iraqi people that can
lead to penal consequences, or otherwise have a direct bearing on the way Iraqis
are regulated, including by amending Iraqi law. The Administrator could also
issue Memoranda on the correct interpretation or implementation of its
Regulations or Orders. Hence the applicable law is determined by the coexistence
of Iraqi law with the legislative acts issued by the CPA. Their reciprocal relations
were defined in terms of subordination of the former to the latter: laws in force
in Iraq as of April 2003 continued to apply only insofar as they did not conflict
with any Regulation or Order issued by the CPA and as long as they did not
prevent the CPA from exercising its rights and obligations. The Administrator
therefore has de iure and de facto powers to repeal any preceding law.
Similarly to the UNMIK and the UNTAET, the CPA exercised a powerful
influence on the judiciary. The institutional independence of judges was
jeopardized by several provisions. First of all, the CPA took over local tribunals
and established the Central Criminal Court of Iraq (CCCI). As pointed out by
Amnesty International and by some commentators, the establishment of
tribunals by occupying powers violates Art. 64 of the Fourth Geneva
Convention, which states that the tribunals of the occupied territory should
continue to function and that the establishment of tribunals by occupying powers
remains an exceptional measure. Hence, the founding act of the CCCI may be at
least questionable. Second, CPA Order No. 13 provided that judges of the CCCI
are be appointed by the CPA Administrator for a term of one year, renewable for
one more year by agreement. Renewable terms of appointment may not provide
sufficient security of tenure, and may thus violate the principle of judicial
independence. Third, the selection of judges of the Iraqi Special Tribunal was
made by the Iraqi Governing Council and for relatively short terms (5 years) with
the possibility of re-appointment.
The functional independence of the Iraqi judiciary under international
administration was also weak in many respects. In terms of the links between the
CPA and the courts, Order No. 13 granted the CPA Chief Administrator the
possibility of selecting the cases to be referred to the CCCI. The Court was also
able to accept cases on its own authority, but those referred by the Administrator
were to be given priority. The Administrator therefore had an important power
to determine and direct the Court’s activity. As to the links between the
Executive (narrowly conceived) and the judges, the Coalition Forces often failed
to implement decisions taken by Iraqi magistrates on issues such as the detention
or release of criminal suspects, nullifying the authority of the courts and de facto
limiting their decisional capacity. Moreover, some form of monitoring and
support of the Iraqi Special Tribunal by a vague category of “non-Iraqi
88
nationals”, appointed by the President of the Tribunal, was envisaged. The
observers not only provided assistance to the judges in their decisions with regard
to international law, but also oversaw the protection of due process standards.
Hence, the judges were subject to non-judicial oversight in the exercise of judicial
functions.
Finally, the CPA played a major part in the reconstruction of the entire
administrative machinery, directly contributing to the establishment of various
institutions.
3.2. Immunity
While horizontal accountability is impeded by the existence of the abovementioned system of unification of powers and by the institutional impossibility
of establishing checks and balances between the different branches of
government, vertical accountability, between citizens and their institutions, is
jeopardized by the peculiar immunity status granted to the UN and its staff.
The principle of immunity has been defined as “the oldest established rule
of diplomatic law” [E. Denza, Diplomatic Law: A Commentary on the Vienna
Convention on Diplomatic Relations, 1998, at 210] and in its original formulation was
intended to ensure that diplomats could fulfil their functions without the
interference from the State hosting them. State immunity was, in turn, justified by
the idea of sovereign equality between States (par in parem non habet imperium) and
consequently by the impossibility of forcing one State – in the person of its
representative – to submit to the national courts of another State. The principle
was founded on three premises: the presence at least two different States, the
consent of the host State to the presence of the foreign representative, and the
capacity/eventuality that one State might have acted against the representative of
the other.
These rationales and premises can be only partially transposed to
international organizations. International organizations enjoy legal personality
and are recognized by States (who are also members of the organizations
themselves). The immunity of international organizations is thus grounded not
on the concept of alterity and of equal status between different entities, but on the
concept of partial identity and functional diversity. While, therefore there is
partial identity between an organization and its constituent member States, this
cannot be allowed to jeopardize the fulfilment of the institutional mission of the
organization. Thus both independence from all States and immunity from their
courts is necessary to enable the proper functioning of international
organizations. As will be explained later in this section, this fundamental premise
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(functional diversity) is absent in interim administrations, thus rendering the
concept of immunity redundant and “overprotectionist” in that context.
Art. 105 of the UN Charter provides for the immunity of the Organization
as well of its members. It states: “1. [t]he Organization shall enjoy in the territory
of each of its Members such privileges and immunities as are necessary for the
fulfilment of its purposes. 2. Representatives of the Members of the United
Nations and officials of the Organization shall similarly enjoy such privileges and
immunities as are necessary for the independent exercise of their functions in
connexion with the Organization”. The Organization and its staff have immunity
to the extent that this is necessary to the fulfilment of their purposes. Immunity
is crucial for the UN to be able to exercise its functions without undue
interference by the member/host State in which the Organization is conducting
its operations.
The Convention on the Privileges and Immunities of the United Nations
defines in more detail the scope of the functional immunity granted by the
Charter. Article II, Section 2 provides that “the United Nations, its property and
assets wherever located and whomsoever held, shall enjoy immunity from every
form of legal process” (emphasis added). The Organization itself is therefore covered
by absolute immunity as a legal person and with regard to its own property. This
was never a matter of serious dispute. What has caused more controversy has the
nature of immunity enjoyed by officials. The Convention makes a distinction
according to the relationship that the specific individual has with the United
Nations. On the one hand, senior staff have absolute immunity. According to
Article V, Sections 18 and 19 of the Convention, the SRSG and his Deputies
enjoy full diplomatic immunity. On the other hand, the vast majority of UN
civilian staff has immunity from legal process “in respect of words spoken or
written and all acts performed by them in their official capacity”, therefore only
functional immunity. This is true also for “Experts on Missions” – including
Civilian Police – who are immune “in respect of words spoken or written and
acts done by them in the course of the performance of their mission”.
The Charter and the Convention, however, do not exhaust all the legal acts
that regulate the issue of immunity. If an operation is authorized by a Security
Council resolution under Chapter VII of the Charter, the Council has the power
to specify the level of immunity enjoyed by the staff taking part in the mission.
Indeed, this authority is implied in the power delegated by the Council to the
SRSG; and the Transitional Administration may in some cases issue the
regulations that it deems appropriate. In this manner, immunity may be expanded
with reference both to staff employed in the mission and to the military
personnel involved (who are not covered by the Convention).
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This was the case of UNMIK Regulation No. 2000/47. The Regulation
conferred wide immunities on UNMIK and KFOR personnel, establishing a
heterogeneous and differentiated system in this regard. In terms of the UNMIK,
Sect. 3 of the Regulation draws a distinction between institutions and individuals,
reproducing the same pattern found in the Convention On the one hand, the
“UNMIK, its property, funds and assets shall be immune from any legal process”
(i.e., the organization has absolute immunity); similarly the SRSG, his Deputies
and other high-ranking officials are “immune from local jurisdiction in respect of
any civil or criminal act performed or committed by them in the territory of
Kosovo” (again, senior staff have absolute immunity). On the other hand,
UNMIK personnel are “immune from legal process in respect of words spoken
and all acts performed by them in their official capacity” (i.e., only functional
immunity for less senior staff).
With regards to the KFOR, however, the Regulation went much further,
granting absolute immunity not only to institutions but also to a broader range of
individuals, and making a distinction between the immunities of between locally
recruited and international KFOR personnel. Sect. 2 provides that “ KFOR, its
property, funds and assets shall be immune from any legal process”; but also that
“[l]ocally recruited KFOR personnel shall be immune from legal process in
respect of words spoken or written and acts performed by them in carrying out
tasks exclusively related to their services to KFOR” (i.e., local personnel have
functional immunity), while “[international] KFOR personnel ... shall be immune:
from jurisdiction before courts in Kosovo in respect of any administrative, civil
or criminal act committed by them in the territory of Kosovo. Such personnel
shall be subject to the exclusive jurisdiction of their respective sending States; and
immune from any form of arrest or detention other than by persons acting on
behalf of their respective sending States” (that is, international personnel are
granted absolute immunity). The UNMIK therefore created a wide area of
impunity for UN and NATO personnel, and left individuals largely without
remedies against acts of the UNMIK or the KFOR.
An even stronger standard of immunity, with less internal differentiation,
was followed in Iraq under CPA. Order No.17 On the Status of the Coalition
Provisional Authority, MNF-Iraq, Certain Missions and Personnel in Iraq, which granted
absolute immunity to institutions and personnel in an all-encompassing formula:
“the MNF, the CPA, Foreign Liaison Missions, their Personnel, property, funds
and assets, and all International Consultants shall be immune from Iraqi legal
process”.
In East Timor, the UNTAET did not adopt any special regulations on the
matter, with Special Representative Vieira de Mello choosing not to make explicit
provision for immunity of UNTAET personnel. Regulations were issued in
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limited areas of law which allowed decisions of the Transitional Administration
to be challenged before the newly established Timorese judicial authorities. For
instance, UNTAET Regulation No. 2000/17 On the Prohibition of Logging Operations
and the Export of Wood from East Timor stated that “[p]ending the establishment of
adequate judicial procedures for administrative matters, a person or legal entity
may challenge a decision of the Deputy Transitional Administrator to uphold the
original decision adverse to their interests with the competent judicial authorities
in East Timor”. An identical formulation was used by Section 8.4 of UNTAET
Regulation No. 2000/19 On Protected Places. However, first of all, the possibility of
bringing claims against the Administration, where it existed, was always limited to
specific and non-core sectors. Second, only a very few regulations provided for
any sort of redress against the international administration. Third, absent any
regulation governing immunities, the Charter, the Convention on the Privileges
and Immunities and customary law continue to apply. As reported by Rawski, the
Principal Legal Advisor to the SRSG has indicated that the Convention applies
fully to the staff of UNTAET and that, therefore, “staff members have, at the
very least, a functional immunity from criminal process in the courts of East
Timor, and are immune from arrest by either UNCIVPOL or the Timorese
police force”. This was borne out in reality, as UNTEAT institutions and staff,
and personnel of Peacekeeping Force, generally enjoyed a high degree of
immunity in practice (although less so when involvement in serious criminal
activity was alleged).
The system of immunities has, thus, created a “state of exceptionalism”
which contravenes the basic principles of the rule of law and of human rights. As
the Ombusperson Institution in Kosovo has reported, norms such as UNMIK
Regulation No. 2000/47 fail to “protect the individual against the arbitrary
exercise of governmental authority and the provision of adequate control by
independent legislative and/or judicial authorities over the exercise of powers by
the executive”. In this way, the Regulation in question violates Art. 6 of the
European Convention of Human Rights, according to which “[i]n the
determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law”.
Given this pervasiveness, the justifiability of a system of immunities in
Transitional Administration is highly questionable. As stated above, one of the
elements justifying the granting of immunities to international organizations and
their staff is the concept of functional diversity: notwithstanding the fact that the
State hosting the international organization may be part of the organization itself
(partial institutional identity), the host State may, for instance, disagree with some
of the international organization’s policies and activities on its territory and
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hamper the fulfilment of the international organization’s objectives (functional
diversity). Hence it is necessary to protect the organization against unilateral
interference by host governments. However, in the context of contemporary
Transitional Administrations, any potential functional diversity is nullified by the
fact that the international “administration” actually encompasses the three
“branches” of State power: legislative, executive and judicial. The UN in Kosovo,
East Timor and Iraq acts not only as an “international organization”, but also as
the public governing authority of territorial entities. There is, in these cases,
functional identity between the UN administration and the host State: the
Organization is the host State either because the host State institutions have been
temporarily replaced, as in Kosovo or Iraq, or because there is no State, as in
East Timor. In this changed context, immunity, absolute or functional, loses the
objective for which it was conceived – to ensure effective action in emergency
cases by protecting against unilateral intervention by the host State – and
becomes instead an instrument for the uncontrolled and unjustified exercise of
power.
4. Issues: Accountability of UN Interim Administrations
These cases are illustrative of a specific issue key to much debate on international
governance: to what extent are international organizations made accountable to
the individuals upon whom their activities will directly impact? In other words:
do individuals have the means to hold international organizations accountable for
conduct which has a direct effect on their own sphere of rights and duties? In
this regard, the UN interim administrations offer a concrete and controversial
case study, being at once a subsidiary body of an international organization and a
territorial administration that regulates and administers – albeit it temporarily –
the behaviour of the local population.
At the domestic level, accountability can take various forms depending on
the different branches of power it is attached to. Accountability of the legislative
branch has two dimensions: a vertical and a horizontal one. The first is realized
through the electoral mechanism: the representative is vertically accountable to
the voter. The voter has the power to reward or to penalize the candidate or his
list confirming through his choices at the ballot box. This type of accountability
is characterized by periodicity, as elections are held at regular intervals, and by the
political disparity that exists between actors belonging to different political levels,
such as the representative of the collectivity, on one hand, and the individual on
the other.
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Horizontal accountability consists instead of the reciprocal control among
institutions at the same political level, of checks and balances among institutions
that, in a wide and non-technical sense, represent the community as a whole and
not merely certain private interests. This type of accountability is continuous –
not simply periodic – and takes places among equals. For instance, in the
domestic context, control over the executive is exercised by the Parliament
(through the opposition), the judiciary (e.g., the constitutional court) and by other
organs set in place to this end more generally.
The accountability of the executive can be defined in terms of the same
spatial metaphor. Here, however, vertical accountability can have a number of
different forms. While the vertical accountability of the legislative is only external
(in that the electoral process takes place outwith the institution itself), with
respect to the executive branch it can also be internal. Hierarchical and
supervisory accountability in fact involve purely internal organs. The first
operates when superiors (principals/masters) have the right to control and
evaluate the performance of subordinates (agents/servants) and to impose
sanctions (including dismissal for inadequate – or rewards for superior –
performance). In cases where subordinates have security of tenure – i.e.,
government civil servants – there are nevertheless usually procedures and
standards that must be adhered to, and a requirement to give reasons for action.
Supervisory accountability occurs when authority or resources are conferred by
one actor (the account holder) on another (accountee), but the relation is not a
strictly hierarchical one of master-servant. For example, when the executive
externalizes its functions by contracting them out to private, it maintains over the
contractor the authority to revoke or refuse to renew the capacities or resources
conferred, as well as, in some cases, the possibility to invoke legal liability. In the
international context, supervisory accountability may exist between states and the
international organizations of which they are members.
In a broad and more mediated sense, vertical and external accountability
mechanisms also for the executive branch of domestic governments. When
casting their vote, citizens directly elect a politician, but indirectly also all those
members of the bureaucracy that the politician in question appoints. Horizontal
accountability, on the other hand, is that exercised by the legislative and the
judiciary over the government and the executive more generally. The role of the
judiciary is particularly important, it provides an accountability mechanism that
can be triggered by individuals. An act or omission of the administration that
violated individual rights can be brought in front of a tribunal.
The accountability of the judiciary is somewhat lacking. There is vertical
internal accountability in the possibility of appealing the decisions of lower courts
and the initiative of it rests in the will of individuals and/or the public subject
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involved, but horizontal accountability is often weak or lacking except in rare and
exceptional circumstances.
The two basic premises on which a system of accountability is based are
consequently the existence of a tripartite set of powers, each of which is
separated from the others and can perform reciprocal checks and balances
(horizontal accountability), and the existence of vertical links between the
institutions and the citizens that enable a dynamic form of scrutiny by the former
over the latter and, more importantly for our purposes here, by the latter over the
former (vertical accountability). In other words, then, domestic governance is
characterized by an absence of immunity for institutions, or, where immunity
does exist – as in the case of members of national Parliaments – an alternative
means of ensuring accountability.
The UN transitional administrations considered here have lacked precisely
these two elements: they established a quasi-absolutistic unification of powers
which neutralize the possibility of checks and balances; and they provided
immunity to UN organs, thus breaking the link between institutions and citizens,
at least in the “bottom-up” direction (i.e., the capacity of citizens to control the
institutions).
The unification of powers and the special immunity status are the two main
obstacles to the construction of a system of accountability for UN Transitional
Administrations. The remainder of this analysis will therefore be dedicated to an
examination and assessment of the mechanisms that, these peculiar features
notwithstanding, have contributed to ensuring some form of accountability of
Transitional Administrations. Following the pattern set out above, one can
distinguish between the accountability of the three branches of government and,
within each of these, between vertical and horizontal accountability.
When applied to transitional administrations, this framework highlights
multiple gaps. With reference to the legislative branch, no kind of vertical or
horizontal accountability seems present. Vertically, the institutions governing the
missions are not democratically elected. Attempts have being made, especially by
the UNTAET, to give a concrete meaning to the requirement to “consult and
cooperate closely” with the local population; however, even there the decision to
include representatives of the local population within institutions fell some way
short of a democratic election – indeed, these representatives were chosen and
appointed by the Administrator. Furthermore, while this initiative did make some
contribution to increasing legitimacy, it had no impact whatsoever on horizontal
forms of accountability; and it lacked one of the key elements of vertical,
electoral accountability: periodicity. The temporary character of the consultative
non-elected councils undermined any real possibility to object to policies with
which citizens were dissatisfied.
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A mild form of vertical (“top-down”) control over the exercise of
legislative power has been exercised by the Secretariat, which supervises the
adoption of legislative acts elaborated by the SRSG. The role of the Secretariat is,
however, more to provide technical support. The UN Legal Counsel, Hans
Corell, has clarified that the Secretariat assists UNMIK “by reviewing the
constitutional elements of the legislation” and in particular by ensuring that the
UNMIK regulations conform to the UN Charter, to the mandates of the Security
Council, and to other the internationally recognized standards.
Institutional accountability was completely absent in two of the cases under
consideration here, characterised by a total lack of any court with the capacity to
challenge regulations or other legislative acts issued by the transitional
administrations. While, for instance, in the territorial administration of Bosnia
and Herzegovina, the Constitutional Court was competent to examine the
compatibility of laws enacted by the High Representative with the constitutional
provisions and human rights guarantees under the Dayton Peace Agreements, in
Kosovo and East Timor the Administrative Authorities were the final judges of
the lawfulness of their own legislation, without possibility of judicial review. As
already noted, such legislation was to remain in force until repealed or superseded
by a further act of the UNMIK or the UNTAET.
The accountability of the exercise of executive power has proved in some
respects more developed. In each of the three cases considered here, the
Administration itself provided the local population with one means of horizontal
accountability: the ombudsperson. In September 1999, the Secretary-General, in
a report on the protection of civilians in armed conflict, recalled the necessity of
compliance by UN personnel with international standards, and recommended the
establishment of a public “ombudsman” to deal with complaints from the
general public about the behaviour of UN Peacekeepers. Although the
recommendation referred specifically to peacekeeping operations and to gross
violations of humanitarian and human rights law, the idea of granting the
population some mean of redress was also incorporated, in a limited manner at
leasr, into the framework of the transitional administrations.
UNMIK Regulation No. 2000/38 established the Ombudsperson
Institution in Kosovo (OIK), with the mandate to investigate complaints against
UNMIK and the local public administration. The final goal was to “promote and
protect the rights and freedoms of individuals and legal entities and ensure that
all persons in Kosovo are able to exercise effectively the human rights and
fundamental freedoms safeguarded by international human rights standards”.
Hence, he had jurisdiction to “receive and investigate complaints from any
person or entity in Kosovo concerning human rights violations and actions
constituting an abuse of authority by the interim civil administration or any
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emerging central or local institution”. To this end, the Ombudsperson was made
independent from the other institutions of the administration, and granted
immunity from suit.
The activity of the Kosovo Ombudsperson has been fairly intense varying,
from a minimum of 344 cases provisionally registered in the year 2000 to a
maximum of 590 of 2001. Around half of these were declared inadmissible and
thus rejected on formal grounds. Furthermore, in the period between 2000 and
2005, statistical data shows that the majority of complaints against the UNMIK
succeeded, while only a very small number were similarly successful against
KFOR. The complaints brought concerned mainly property related rights,
employment issues, fair hearing rights, and rights to liberty.
In East Timor, an Ombudsperson was appointed in September 2000 and
became operational in May the following year. However, as repeatedly reported
by Amnesty International, there was no formal regulation establishing its legal
status and defining its powers and authority. It was, therefore, unclear on what
legal basis the Ombudsperson was operating, what processes it would apply to its
work and what authority it would have to make recommendations and ensure
that they were acted upon. In general, this lack of clarity coupled with a lack of
institutional support have contributed to a widespread perception of its
ineffectiveness.
In East Timor, the Ombudsperson was not, however, the sole “watchdog”.
In November 2000, an Office of Inspector General was created, charged with the
task of verifying the use of funds from the Trust Fund for East Timor,
administered by the Word Bank. A senior East Timorese lawyer was appointed to
lead the unit. The body investigated a wide range of issues, from allegations of
malfeasance in the recruitment of schoolteachers, misappropriation of fuel,
misuse of funds in the Department of Justice, to the purchase of faulty
computers. As reported by Chesterman, however, the majority of its activity was
without concrete consequences, consisting mainly in general dissemination
activities, such as producing pamphlets on nepotism, bribery and other
widespread misconduct.
In Iraq, the decision to create an ombudsperson was taken late and had
limited impact. CPA Order No. 98 established an Ombudsperson for penal and
detention matters. Recognizing the “necessity of an independent mean of
investigating complaints of abuse and [...] to promote the protection of human
rights” the CPA vested this body with the authority to receive and examine
complaints against any person (including a public authority) relating to the
conduct of a detaining authority and in certain instances to investigate conduct
regardless of whether a complaint has been filed. However, the institutional and
functional independence of the Ombudsperson was very limited. He was
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appointed by the CPA and considered as an officer of the Ministry of Justice,
with a salary “at a level commensurate with the duties and responsibilities of the
office”. In the deployment of his functions he was under the strict control of the
CPA: on request by the Minister of Justice, he had to consult the Minister on the
conduct of an investigation; and prior to publishing a report he had to inform –
and, if so requested, consult with – the Minister of Justice. Furthermore, despite
the fact that the Order came relatively late (it was one of the last issued by the
CPA), the Ombudsman could not investigate any matter that occurred prior to
the establishment of his position.
In general, the Ombudsperson was regarded as a minimum, but not
sufficient, means to hold the transitional administrations accountable. Indeed,
there were at least three structural flaws in this institution. Firstly, there was the
issue of a possible lack of independence. The Ombudspersons were established
by an authoritative act of the Administration; their status was that of an officer of
the transitional administration; and in exercising some of its functions they had to
seek authorization from the transitional Administrator. Secondly, the jurisdiction
of the Ombudsperson was often limited or uncertain, and applicable only over a
short period of time. Thirdly, and most importantly, there was no mechanism
through which the decisions of these Ombudspersons could be enforced. As
Chesterman points out, in seeking to address the accountability problem through
the establishment of an ombudsperson, the misuse of power was regarded first
and foremost as a political rather than a legal problem, and thus no provision was
made to grant their decisions legal effect. For instance, it is remarkable in this
respect that, among the statistical data made public in the annual reports issued
by the Kosovo’s Ombudsperson, there is no reference to the compliance rates of
the respondent authorities.
Finally, the vertical accountability of the exercise of executive power was
realized to some degree at least through weak hierarchical controls. Each mission
was obliged to report to the Security Council. According to Security Council
Resolution 1244 (1999), the UNMIK – including “the leaderships of the
international civil and security presences” – had to “report at regular intervals”.
This was done every three months. Similarly, Security Council Resolution 1272
(1999) requested the Secretary-General to report every six months on the
progress made by the UNTAET towards the implementation of the Resolution.
However, reports to the Security Council are taken often “at face value”, unless
more core issues such as political disagreements or budgetary questions arise.
A comprehensive picture of accountability mechanisms available in
transitional administrations reveals more blank spaces that full ones,
demonstrating that accountability under transitional administrations is based
upon a somewhat fragile and underdeveloped model.
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This analysis has shown that the lack of accountability in transitional
administrations is a multi-dimensional problem, and that in none of these
dimensions has accountability reached a level of development comparable to that
of the State. This comparison is useful – indeed, necessary – because the primary
character of such administrations is as a territorial governing authority; their
nature as international organizations is secondary in this regard.
A number of reasons have been put forward to justify this lack of
accountability, none of which seem fully convincing or resistant to objections.
The efficiency argument is perhaps the most common. It is said that the primary
objective of transitional administrations is to act in a timely and efficient manner
in emergency situations. For these purposes, centralized authority and wideranging immunities are deemed necessary. Building upon Schmidt’s theory of
emergency powers and on its critique of the “minimal state” (Minimalstaat) –
which in order to function requires a peaceful, secularized environment – this
justification is theoretical, ambiguous and readily open to abuse. At least three
objections might be raised.
Firstly, transitional administrations are usually established in territories
undergoing domestic turmoil and change. However, one goal of such
administrations is precisely that of political and social stabilization. Indeed, the
presence of a transitional administration can be protracted for several years, as in
the case of Kosovo, and the administration itself goes through significant
changes, possibly passing from more serious emergency governance in the initial
phases to a relatively calm and normalized approach at the end of its mandate.
The emergency argument, therefore, undermines itself, because it is inevitably
coupled with its exceptional and temporary character. If the emergency lasts too
long, this means that the transitional administration is failing to effectively pursue
its goals.
Secondly, fundamental human rights and rule of law principles constitute
the bulk of legal norms that transitional administrations should seek to establish
in the territory. Therefore, on one hand, an objective analysis of events should
bring even the most radical supporter of the emergency justification to the
conclusion that serious crimes – such as rape, murder or genocide – can never be
“functional” to an administration’s mission; and, similarly, that institutional
abuses of various kinds – such as unlawful detentions or expropriations, denials
of the right to an hearing or to a reasonably expeditious trial – should not
generally be seen as furthering the purposes of the administration, and should at
the very least be subjected to very strict control. On the other hand, a general
lack of accountability is incompatible with the mandate of the mission.
Transitional administrations should encourage locally the emergence of a human
rights and rule of law culture, and create mechanisms by which it may be held
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accountable to the local population for its conduct as a territorial governing
institution.
Thirdly, the emergency argument tends to equate accountability with the
impossibility of taking action: in other words, it is claimed that institutions or
officers might be limited in the fulfilment of their duties by the presence of
accountability mechanisms. However, in practice this is not the case. For
instance, a court investigating the alleged misconduct of an institution or an
officer need not impede them in the conduct of their activities until the charges
have been verified. And even where such allegations are substantiated, this need
not lead to detention or removal from office, but may simply impose other forms
of redress, such as monetary compensation.
In light of these counter-arguments, what proposals may be made for
enhancing the accountability of transitional administrations? Would a more
flexible and tailored approach help to achieve such a goal? In transitional
administrations, the level of accountability is determined at the beginning of the
mission through legislative acts such as regulations and orders. Thus, one of the
common features of the systems of accountability elaborated in Kosovo, East
Timor and Iraq was their fixed character. It may be argued, however, that the
extreme upheavals typical of such environments require instead a progressive and
highly flexible approach to governance in general, and accountability in
particular.. What if competent authorities could develop a differentiated structure
of accountability mechanisms in accordance with the particular programme that
the administration intends to follow, and distinguishing between the opening
phase of an operation – in which emergency needs may require a more restrictive
approach to accountability – and the following stages of normalization, where the
value of holding institutions and single officers to account would gain increasing
prominence as the state of emergency recedes?
During the normalization phases, therefore, stronger mechanisms of
accountability could be established, addressing the two elements identified above
as the major obstacles to accountability (i.e., the centralization of powers and
immunity). These two are closely connected, as it would not be possible to
address the former without at the same time altering, in part at least, the latter.
It seems clear that, in the later phases at least, a greater division of powers
is desirable. In particular, the institutional independence of the judiciary should
be guaranteed in the appointment procedures through a competitive and
transparent selection of the most qualified candidates, and judges should not
have the status of UN civil servants. Furthermore, functional independence
should be ensured: each judge should maintain his office for the whole period of
the mission at least; the adoption of disciplinary measures, such as removal or
suspension from office, should be decided by an independent body composed by
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members of the judiciary elected by the judges themselves; and all rules requiring
the strict supervision or further authorization of the decisions of judges should
be limited, if not eliminated entirely. Finally, a supreme court, with jurisdiction to
revie the legislative acts of the transitional administration, could be created
Is the establishment of an ombudsperson an acceptable substitute in this
regard? Would it be sufficient to compensate for the absence of a qualified and
independent judiciary? The very idea of creating an ad hoc body, outwith the
judiciary, examining and investigating charges against the international
administrations is questionable. Moreover, the lack of institutional and functional
independence and, above all, of enforcement capacity, renders such bodies
scarcely effective. How, then, might the Office of the Ombudsperson be
reformed in order to overcome these weaknesses? There are many ways in which
such bodies could be strengthened by enhancing their independence and
effectiveness. However, there are two difficulties with this: firstly, making such
changes may well turn the Ombudsperson into a de facto duplicate judge; and
secondly, any progress made in this regard may serve to undermine the important
task of reforming the judiciary – if there is an effective Ombudsperson in place,
the task of securing an independent and effective judiciary seems less urgent. An
alternative view might then be to look at the ombudsman as an institution whose
activity is limited to the initial phases of a mission, in which the state of
emergency requires a more restricted approach to accountability. The
ombudsperson should then itself have a transitional character and a short-term
mandate, ending when the situation shows signs of sufficient normalization, and
enabling the judiciary to carry out its duties with effectively and independently.
This picture is complicated, however, by the strong political pressure
emanating from the member states to maintain a strong system of immunities.
The need to rethink the approach to immunities in relation to the most recent
transitional administrations has been argued above. The logic traditionally
underling the concept of functional immunity – the risk that the host state will
interfere with the activities of the international organization in question – simply
does not apply to situations in which the international administration itself
exercises, or supervises the exercise of, all sovereign functions. It is also true,
however, that this issue is closely connected to the possibility of securing an
institutional division of powers: if a higher level of institutional differentiation is
realized, thus granting the judiciary greater independence and enforcement
capacity, it is unlikely that member states would consent to any major
restructuring of the immunities regime. In attempting to square the circle, might
an intermediate solution, in which the jurisdiction of ad hoc courts is expanded to
include investigations of complaints against the UN and its staff be imagined?
This would mean a dismantling of immunities, but would ensure that judges are
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selected from among independent and qualified international law experts, rather
than from the local population?
Finally, further attempts may be made to combine supervisory
accountability with the involvement of the local population, instead of leaving
everything to the administration itself through the – relatively weak – periodic
reporting requirements. As recalled by Chesterman, under the Trusteeship
System, the Trusteeship Council could draft questionnaires to be answered in
reports and – perhaps most importantly – could accept petitions from local
inhabitants in so doing. A reprise of this formula might be to create a mechanism
that would allow the Security Council (or, perhaps more likely, to a specialized ad
hoc committee thereof) to directly accept individual petitions, and then require the
transitional administration to respond to these in its report.
5. Further Reading
a.
b.
c.
d.
e.
f.
g.
h.
E. ABRAHAM, “The Sins of the Savior: Holding the United Nations
Accountable to International Human Rights Standards for Executive
Order Detentions in its Mission in Kosovo”, 52 American University Law
Review 1291 (2003);
M. G. BRAND, “Institution-Building and Human Rights Protection in
Kosovo in the Light of UNMIK Legislation”, 70 Nordic Journal of
S. CHESTERMAN, You, The People: The United Nations, Transitional
Administration, and State-Building, Oxford University Press (2004);
A. DAY, “No Exit Without Judiciary: Learning A Lesson From UNMIK’s
Transitional Administration in Kosovo”, 23(2) Wisconsin International Law
Journal 185 (2005);
E. DE WET, “The Direct Administration of Territories by the United
Nations and its Member States in the Post Cold War Era: Legal Bases and
Implications for National Law”, 8 Max Planck Yearbook 292 (2004);
J. KUHN BLEIMAIER, “The Legal Status of the Free City of Danzig 19201939: Lessons to Be Derived from the Experience of a Non-State Entity in
the International Community”, 69 Hague Yearbook of International Law 70
(1989);
S. LINTON, “Rising From The Ashes: The Creation Of A Viable Criminal
Justice System In East Timor”, 5 Melbourne University Law Review 8 (2001);
D. MARSHALL, S. INGLIS, “The Disempowerment of Human Rights-Based
Justice in the United Nations Mission in Kosovo”, 16 Harvard Human Rights
Journal 95 (2003);
102
i.
j.
k.
l.
m.
n.
o.
p.
q.
r.
s.
t.
u.
v.
M.J. MATHESON, “United Nations Governance of Post Conflict Societies”,
95 American Journal of International Law 76 (2001);
R. MUHARREMI, L. PECI, L. MALAZOGU, V. KNAUS, T. MURATI,
Administration and Governance in Kosovo: Lessons Learned and Lessons to Be
Learned, Centre for Applied Studies in International Negotiations,
Pristina/Geneva 2003
(http://www.isn.ethz.ch/pubs/ph/details.cfm?v21=107367&lng=en&id=
20287);
S. PRITCHARD, “United Nations Involvement in Post-Conflict
Reconstruction Efforts: New and Continuing Challenges in the Case of
East Timor”, 24 University of New South Wales Law Journal 188 (2001);
C. STAHN, “Territorial Administration in the Former Yugoslavia: Origins,
Developments and Challenges Ahead”, 61 Heidelberg Journal of International
Law 107 (2001);
C. STAHN, “Accountability And Legitimacy In Practice: Lawmaking By
Transitional Administrations”, paper presented at the Geneva Research
Forum, European Society of International Law, 2005
(www.esil-sedi.eu/english/pdf/Stahn.PDF);
C. STAHN, “Governance Beyond the State: Issue of Legitimacy in
International Territorial Administration”, 2 International Organization Law
Review 11 (2005);
C. STAHN, “Justice under Transitional Administration: Contours and
Critique of a Paradigm”, 27 Houston Journal of International Law 332 (2005);
H. STROHMEYER, “Collapse and Reconstruction of a Judicial System: The
United Nations Missions in Kosovo and East Timor”, 95 American Journal
of International Law 46 (2001);
H. STROHMEYER, “Policing The Peace: Post-Conflict Judicial System
Reconstruction In East Timor”, 24(1) University of New South Wales Law
Journal 171 (2001);
L. VON CARLOWITZ, “UNMIK Lawmaking between Effective Peace
Support and Internal Self-determination”, 41 Archiv des Volkrrechts 336
(2003);
J. WERZER, “The UN Human Rights Obligations and Immunity: An
Oxymoron Casting a Shadow on the Transitional Administration in
Kosovo and East Timor”, 11 Nordic Journal of International Law 105 (2008);
R. WILDE, “From Danzig to East Timor and Beyond: The Role of
International Territorial Administration”, 95 American Journal of International
Law 3 (2001).
103
VII.A.9 Chad - Petroleum Development and Pipeline Project: Human
Rights and the World Bank
Mariarita Circi
1. Background
Even if the World Bank (WB) has, since 1998, adhered to the principle that
“creating the conditions for the attainment of human rights is a central and
irreducible goal of development”, no specific WB Operational Directive or Policy
on this matter exists. Therefore, assessing the status of human rights in general
does not fall within the mandate of the World Bank Inspection Panel (WBIP, for
further reading on the WBIP see § III.B.6 “The World Bank Inspection Panel:
The Indian Mumbai Urban Transport Project Case” by M. Circi).
Nevertheless, at the specific request of private citizens concerned about
certain issues, the WBIP has in certain cases decided that it would be appropriate
to examine whether human rights violations were such as to impede the
implementation of particular projects in accordance with WB policy. One
particularly important decision, in accordance with an emerging movement
within the international community of a human rights-based approach to
development cooperation, related to an examination of the Petroleum
Development and Pipeline Project in Chad.
-
-
-
Chad - Petroleum Development and Pipeline Project
(http://web.worldbank.org/WBSITE/EXTERNAL/EXTINSPECTION
WBIP/0,,contentMDK:22515234~pagePK:64129751~piPK:64128378~th
eSitePK:380794,00.html);
WBIP Annual Reports
(http://web.worldbank.org/WBSITE/EXTERNAL/EXTINSPECTION
WBIP/0,,contentMDK:20311664~menuPK:64129472~pagePK:64129751
~piPK:64128378~theSitePK:380794,00.html);
WB and Human Rights
(http://web.worldbank.org/WBSITE/EXTERNAL/EXTSITETOOLS/0
,,contentMDK:20749693~pagePK:98400~piPK:98424~theSitePK:95474,0
0.html).
104
3. Analysis
The aim of the Chad Petroleum Development and Pipeline Project was to
provide assistance to Chad for the development of its oil fields, and for the
construction of a pipeline across Cameroon to the Atlantic Ocean. The project
was part of the WB’s assistance strategy to support Chad’s central development
objective of reducing poverty by transforming oil revenue wealth into direct
benefits for the national economy, and public investments in health, education
and basic infrastructure. Being the largest construction venture in Sub-Saharan
Africa, with massive private sector investment (the WB Group contributed only
4% of the total expenses, the vast majority of which were covered by a
consortium of ExxonMobil, Petronas and Chevron), the controversial project
provoked many debates around the world, shedding light on the human rights
situation in Chad, and leading to a request for an examination of the situation by
the WBIP. The request was submitted on March 22, 2001 by a private citizen
acting on his own behalf, and on behalf of around 100 other residents living near
three oil fields.
The requester alleged that the WB had failed to comply with its own policy
and procedures on environmental assessment (OD 4.01) which included “respect
for human rights, proper governance, and just and equitable compensation for
persons adversely affected by pipeline routes”; involuntary resettlement (OD
4.30); natural habitats (OP/BP 4.04); pest management (OP 4.09); poverty
reduction (OD 4.15); indigenous peoples (OD 4.20); forestries (OP 4.36);
disclosure of operational information (BP 17.50); economic evaluation of
investment operations (OP 10.04); project monitoring and evaluation (OD
10.70); project supervision (OD 14.05); and management of cultural property in
WB-financed projects (OPN 11.03). The requester pointed out that, since 1990,
Chad had ignored a number of directives requiring respect for human rights; and
that the Project, if allowed to continue, would lead to further harms such as
human rights violations, pollution, environmental degredation, expropriation
without compensation, and a lack of respect for local usages and customs.
The WB Management submitted its response to the WBIP on 20 July 2001,
stating, with regard to human rights, that no violations had occurred as a result of
a failure by the WB failure to apply its own policy, noting instead that the
preparation process had eased the dialogue between Government and civil
society in Chad. Nevertheless, Management acknowledged that the WB “is
concerned by human rights in Chad as elsewhere” even if “its mandate does not
extend to political human rights”. However, in the view of Management, only if
105
human rights issues have “significant direct economic effect” on a WB financed
project do they become a matter of concern for the WB; this, it claimed, was not
the case in Chad.
Although the WBIP, in its Investigation Report, recognized that “it is not
in its mandate to assess the status of human rights in Chad”, for the first time in
this regard it “felt obliged to examine whether the issue of human rights violation
in Chad was such to impede the implementation of the project in a manner that
was incompatible with WB’s policies”. The WBIP, after having examined several
reports addressing the human rights situation in Chad as well as the extensive
exchange of correspondence between the WB Management and local and
international NGOs, concluded that the situation was “far from ideal”, raising
“questions about compliance with WB’s policies, in particular those that relate to
informed and open consultation”. Moreover, the WBIP’s Chairman affirmed,
during the presentation of the case to the WB’s Board of Executive Directors,
that it was the WBIP’s strong belief that “the human rights situation in Chad
exemplifies the need for the WB to be more forthcoming about articulating its
role in promoting rights within the countries in which it operates”. Furthermore,
he hoped this case would lead to further study of the wider implications of
human rights violations, as these were related to “the overall success or failure of
policy compliance in future WB-financed projects”.
This hope was, in fact, realized some years later. On 27 January 2006, the
“Legal Opinion on Human Rights and the Work of the World Bank” by the
former Senior Vice-President and General Counsel Roberto Dañino, confirmed
that human rights “may constitute legitimate considerations for the WB where
they have economic ramifications or impacts” reaffirming “the facilitative role
the Bank may play in supporting its members to fulfil their human rights
obligations”.
This represented a major revision of the two earlier WB legal opinions,
published in 1990 and 1995, in which the General Counsel had inferred from the
prohibition of political activity in the WB’s work an obligation not to interfere in
the political human rights situation of a country as long as this has no
demonstrable effect on the country’s economy.
4. Issues: The “Step-by-Step” Approach to Human Rights Implementation
This and other similar cases (see in particular China – Western Poverty Reduction
Project, 2000; and Honduras – Land Administration Project, 2007) shed light on how
human rights have become part of the mandate of the WB. Thanks to activities
of the WBIP in this regard, the WB has been forced to accept the principle of
106
interpreting its mandate dynamically, which has led from the initial near-exclusion
of human rights concerns to them being considered as “an intrinsic part of the
Bank’s mission” (2006).
From a different perspective, this approach leads to stronger and deeper
forms of collaboration between global players – both international organizations,
like the UN, and NGOs – that are called upon to fulfil a range of roles on a
number of different levels: international, regional and national, formal and
informal.
This outcome is particularly interesting because it relates to the area of
human rights, and especially socio-economic human rights, in which
implementation is often lacking. But how common is this “step-by-step”
approach within the global arena, and how far can it go? Do examples of it exist
in other sectors? Could it be applied universally?
5. Further Reading
a. J.M. ACKERMAN, “Human Rights and Social Accountability”, Social
Development Papers, No. 86 / May 2005, The World Bank
(http://portals.wi.wur.nl/files/docs/gouvernance/HumanRightsandSoci
al0AccountabilityFINAL.pdf);
b. G. BRODNIG, “The World Bank and Human Rights: Mission
Impossible?”, Harvard University, Carr Center for Human Rights Policy
Working
Paper
T-01-05
(http://www.hks.harvard.edu/cchrp/Web%20Working%20Papers/Brod
nigHR&WorldBank.pdf);
c. D. BRADLOW, “The World Bank, the IMF and Human Rights”, 6
Transnational Law and Contemporary Problems 47 (1996);
d. D.L. CLARK, “The World Bank and Human Rights: The Need for
Greater Accountability”, 15 Harvard Human Rights Journal, 205 (2002)
(http://www.law.harvard.edu/students/orgs/hrj/iss15/clark.shtml);
e. S. HERZ, A. PERRAULT, “Bringing Human Rights Claims to the World
Bank Inspection WBIP”, Ciel, 2009
(www.bicusa.org/en/Document.101841.aspxSimilar);
f. J.K. INGRAM, D. FREESTONE, “Human Rights and Development”,
(http://siteresources.worldbank.org/EXTSITETOOLS/Resources/Ingr
amDevtOutreach.pdf);
g. D. KAUFMAN, “Human Rights, Governance, and Development: An
Empirical Perspective”
107
(http://siteresources.worldbank.org/EXTSITETOOLS/Resources/Kau
fmannDevtOutreach.pdf);
h. D. KAUFMANN, “Human Rights and Governance: The Empirical
Challenge”, in P. ALSTON, M. ROBINSON (eds.), Human Rights and
Development: Towards Mutual Reinforcement, Oxford (2005);
i. THE INTERNATIONAL BANK FOR RECONSTRUCTION AND
DEVELOPMENT, Development and Human Rights: The Role of the World Bank,
Washington (1998)
(http://www.fao.org/righttofood/KC/downloads/vl/docs/HR%20and
%20devlopment_the%20role%20of%20the%20WB.pdf);
j. A. PALACIO, “The Way Forward: Human Rights and the World Bank”
(http://siteresources.worldbank.org/EXTSITETOOLS/Resources/Pala
cioDevtOutreach.pdf);
k. L.H. PIRON, T. O’NEIL, Integrating Human Rights into Development, Overseas
Development Institute, 2005
(http://www.odi.org.uk/resources/docs/4403.pdf);
l. S. SCHLEMMER-SCHULTE, “The World Bank Inspection WBIP: A Record
of the First International Accountability Mechanism and Its Role for
Human Rights, Human Rights Brief Center for Human Rights and
Humanitarian Law”, American University - Washington College of Law,
1999.
108
VII.A.10 Thinking Human Rights Globally: The Ken SaroWiwa Case
Emanuela Cocco
1. Background
The region of the Niger Delta has been targeted for crude oil extraction since the
1950s, and for decades has suffered serious environmental damage due to
indiscriminate oil waste dumping. Within the region of the Niger Delta,
Ogoniland, in Southern Nigeria, is one of the areas where oil drilling had the
most devastating impact on the environment.
Ken SaroWiwa, a Nigerian author and playwright, led, originally as
spokesperson and then as President of the Movement for the Survival of the
Ogoni People (MOSOP), a non-violent campaign against the environmental
degradation of land and waters of Ogoniland as a result of the activities carried
out in the region by multinational oil companies, including Shell.
Royal DutchShell began using land in Ogoniland for oil production in
1958. Pollution resulting from oil production has contaminated water supply and
agricultural land, and killed fish, where local economies are based largely on
farming and fishing. Moreover, Royal DutchShell cooperated with the Nigerian
military regime to suppress all demonstrations that were carried out in opposition
to the oil corporation’s activities, also providing the Nigerian police with
monetary and logistical support.
In 1995, the corporation and its subsidiary colluded with the Nigerian
government to bring about the arrest and execution of a group of nine activists
better known as the “OgoniNine” (among whom was Ken SaroWiwa), who were
finally executed by hanging on November 10, 1995 after a trial before a special
military tribunal. Human rights groups and political leaders around the world
condemned both the executions and the lack of due process that was accorded to
the victims in connection with the trial before a special tribunal created for the
purpose.
Apart from the OgoniNine, a number of other people were also victims of
torture and wrongful detention: Owens Wiwa, Ken SaroWiwa’s brother, was
detained for more than a year under false charges to prevent him from
protesting; Michael Vizor was beaten by the police in front of his children, since
he did not want to confess a false charge, and was further tortured and denied
medical assistance during his wrongful detention; Uebari N-nah was shot and
109
killed in October 1993 near a Shell flow station; a number of Ogoni people were
attacked by troops summoned by Royal DutchShell during a peaceful
demonstration against Shell and the Nigerian military regime for bulldozing
farmland for a pipeline; and KaraloloKogbara was shot by Nigerian soldiers while
she was speaking out against the bulldozing of her crops.
The above mentioned events form the background to three lawsuits (Wiwa
v. Royal Dutch Petroleum, Wiwa v. Anderson and Wiwa v. Shell Petroleum Development
Company, all known as Wiwa v. Shell) brought before the United States Federal
Courts under the Alien Tort Claims Act (ATCA, also known as Alien Tort
Statute, ATS) and the Torture Victim Protection Act (TVPA).
All lawsuits were filed by the Center for Constitutional Rights (CCR), acting
on behalf of relatives of murdered activists who had participated in the struggle
for human rights and environmental justice in Nigeria.
The defendants were the Royal Dutch Petroleum Company, Shell
Transport and Trading Company, Brian Anderson (the head of the Nigerian oil
operation) and Shell Petroleum Development Company (the Shell Nigerian
subsidiary). They were charged with complicity in human rights abuses against
the Ogoni people, including summary execution, crimes against humanity,
torture, inhumane or degrading treatment, arbitrary arrest, violation of the rights
of life, liberty and security of person and peaceful assembly and association,
wrongful death, assault and battery, intentional or negligent infliction of
emotional distress, and negligence.
-
-
United States Alien Tort Claims Act (ATCA), 1789
(http://codes.lp.findlaw.com/uscode/28/IV/85/1350);
United States Torture Victim Protection Act (TVPA), 1991
(http://codes.lp.findlaw.com/uscode/28/IV/85/1350/notes);
United States District Court for the Southern District of New York,
Original Complaint, Wiwa v. Royal Dutch Petroleum Company N.V. and Shell
Transport and Trading Company p.l.c., November 8, 1996
(http://ccrjustice.org/files/11.8.96%20%20Wiwa%20Complaint.pdf);
United States Court of Appeals for the Second Circuit, Wiwa v. Royal Dutch
Petroleum Company N.V. and Shell Transport and Trading Company p.l.c.,
Decision, September 14, 2000
(http://ccrjustice.org/files/9.00%20%20second%20circuit%20opinion.pdf);
110
-
-
-
-
-
-
-
-
-
Original Complaint, Wiwa v. Brian Anderson, March 5, 2001
(http://ccrjustice.org/files/Wiwa_Complaint_03_01.pdf);
Second Amended Complaint, Wiwa v. Brian Anderson, June 16, 2003;
(http://ccrjustice.org/files/9.12.03%20Second%20%20Amended%20Com
plaint%20Anderson.pdf);
United States District Court for the Southern District of New York, Fifth
Amended Complaint, Wiwa v. Royal Dutch Petroleum Company N. V. and Shell
Transport and Trading Company p.l.c., March 16, 2009
(http://ccrjustice.org/files/3.16.09%205th%20Amended%20Complaint.pd
f);
United States District Court for the Southern District of New York, Denial
of Defendants’ Motion to Dismiss, Wiwa v. Royal Dutch Petroleum Company
N. V. and Shell Transport and Trading Company p.l.c., April 23, 2009
(http://ccrjustice.org/files/Wiwa%20v%20Shell%20Denial%20of%20Mot
ion%20to%20Dismiss%20April%2023%202009.pdf);
Scheduling Order, Wiwa v. Royal Dutch Petroleum Company N. V. and Shell
Transport and Trading Company p.l.c. and Wiwa v. Brian Anderson, May 26, 2009
(http://wiwavshell.org/documents/May_26_Wood_Order.pdf);
United States District Court for the Southern District of New York, Order,
Wiwa v. Royal Dutch Petroleum Company N. V. and Shell Transport and Trading
Company p.l.c. and Wiwa v. Brian Anderson, June 3, 2009
(http://wiwavshell.org/documents/June_03_Cancelled_Hearing.pdf);
Presentation of Report to United Nations (Human Rights Council) by
Professor John G. Ruggie in Geneva, May 30, 2011
(http://www.business-humanrights.org/media/documents/ruggiestatement-to-un-human-rights-council-30-may-2011.pdf);
United Nations Human Rights Council, Guiding Principles on Business and
Human Rights
(http://www.business-humanrights.org/media/documents/ruggie/ruggieguiding-principles-21-mar-2011.pdf);
United Nations Human Rights Council, Resolution on June 16, 2011
(http://www.business-humanrights.org/media/documents/un-humanrights-council-resolution-re-human-rights-transnational-corps-eng-6-jul2011.pdf);
Petition for writ of certiorari, Kiobel v. Royal Dutch Petroleum, June 6, 2011
(http://ccrjustice.org/files/KiobelPetitionforwritFinal.pdf);
-
-
111
Center for Constitutional Rights, international human rights organizations
and international law experts, Brief of amici curiae on the petition for writ
of certiorari, Kiobel v. Royal Dutch Petroleum, July 13, 2011
(http://ccrjustice.org/files/FINAL%20Kiobel%20Amicus.pdf);
United States Supreme Court, Certiorari Summary Disposition, Kiobel v.
Royal Dutch Petroleum, October 17, 2011
(http://www.supremecourt.gov/orders/courtorders/101711zor.pdf).
3. Analysis
In Wiwa v. Shell the plaintiffs alleged that Royal DutchShell had conspired with
the Nigerian military regime to commit wrongful and tortious acts which resulted
in injury to the Ogoni people.
As a direct and proximate result of the defendants’ unlawful conduct, the
plaintiffs claimed to have suffered significant physical injury, pain, extreme and
severe mental anguish and emotional distress and thus asked for “general and
compensatory damages in amounts to be proven at trial” (together with punitive
damages and costs).
Above all, and notwithstanding the merits of the claims, Wiwa v. Shell raised
the fundamental question of whether the United States Federal Courts can
exercise jurisdiction over claims relating to human rights abuses brought by nonUnited States citizens under the ATCA and the TVPA.
Specifically, the ATCA of 1789 grants jurisdiction to United States Federal
Courts over “any civil action by an alien for a tort only, committed in violation of
the law of nations or a treaty of the United States”(28 U.S.C. § 1350); the TVPA
of 1991 allows individuals to claim for damages for torture or extrajudicial killing
regardless of where the violations took place, on condition that the plaintiffs,
whether United States citizens or not, demonstrate that local remedies have
already been exhausted and are thus no longer available (28 U.S.C. § 1350).
Indeed, the TVPA not only confirms that United States Courts have jurisdiction
over claims brought by aliens alleging torture under the law of a foreign nation,
but also clarifies that the remedy is available to any “individual” and not
exclusively to “aliens”, as originally maintained under the ATCA, thus covering
United States citizens as well.
In response to the original complaint on November 8, 1996 against Royal
Dutch/Shell/Shell Transport and Trade before the Southern District Court of
New York, the defendants filed their motion to dismiss the case on the basis of
the forum non conveniens doctrine. The motion to dismiss was granted on
September 30, 1998 by the District Court, stating that England would be an
112
alternative forum to adjudicate the case. This decision was appealed by the
plaintiffs to the Second Circuit Court of Appeals, which reversed the District
Court’s decision on the grounds that the United States was a proper forum
because two of the plaintiffs were US residents. Therefore, the defendants asked
the United States Supreme Court to review the Court of Appeal’s decision, but
on March 26, 2001 the writ of certiorari was rejected.
Meanwhile, in March 2001 the plaintiffs also filed a lawsuit against Brian
Anderson, former managing director of Royal DutchShell’s Nigerian subsidiary,
and even in this case the defendants filed a motion to dismiss the case due to lack
of jurisdiction. This time, on February 22, 2002, the District Court denied the
defendants’ motion to dismiss and stated that the plaintiffs were entitled to bring
their suits under the ATCA and the TVPA.
While the Wiwa v. Shell cases were going on, on August 15, 2005 the
District Court rejected the defendants’ motion to dismiss a related case, Kiobel v.
Royal Dutch Petroleum. Accordingly, Royal Dutch/Shell filed a brief challenging the
validity of the human rights claims in Wiwa v. Shell, pursuant to the rule
established by the Supreme Court in Sosa v. Alvarez-Machain, according to which a
private defendant could not be sued for arbitrary arrest in the absence of a
governmental action for corporate criminal liability. As a result, in September
2006 the District Court dismissed the claims relating to summary execution,
forced exile and the rights to life, liberty and personal assembly, but allowed the
claims for aiding and abetting liability in general, as well as the claims relating to
crimes against humanity, torture and prolonged arbitrary detention.
The Wiwa v. Shell trial was finally about to begin when, on June 8, 2009, on
the eve of trial, the parties agreed a settlement for the three lawsuits, providing
for a total of 15.5 million dollars compensation to the plaintiffs, which were used
to establish a trust in favour of the Ogoni people.
Nonetheless, the related case of Kiobel v. Royal Dutch Petroleum has continued
along a different path. On September 17, 2010 the Second Circuit of Court of
Appeals dismissed the plaintiffs’ claims relating to human rights violations,
holding that corporations cannot be sued under the ATCA because they are not
subject to liability under customary international law. Therefore on October 15,
2010, the CCR and other international human rights organizations filed an
amicus brief in Kiobel v. Royal Dutch Petroleum arguing that corporations can be
liable under the ATCA, that international law is primarily enforced through
domestic remedies and that domestic federal law allows suit against corporations.
On June 6, 2011 plaintiffs in Kiobel v. Royal Dutch Petroleum filed a writ of certiorari
before the Supreme Court, where the CCR and other international human rights
organizations have also filed an amicus brief.
113
Specifically, the Supreme Court was addressed the following questions: (i)
“whether the issue of corporate civil tort liability under the Alien Tort Statute
(“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all
courts prior to decision below, or an issue of subject matter jurisdiction”; (ii)
“whether corporations are immune from tort liability for violations of the law of
nations such as torture, extrajudicial executions or genocide, or if corporations
may be sued in the same manner as any other private party defendant under the
ATS for such egregious violations”.
Finally, on October 17, 2011 the Supreme Court granted certiorari in Kiobel
v. Royal Dutch Petroleum and announced that the case is to be argued in tandem
with the Mohamad v. Rajoud case, where the question presented is “whether the
Torture Victim Protection Act of 1991 permits actions against defendants that
are not natural persons”.
The Supreme Court’s decision –not yet issued at time of publication– will,
whatever the result, undoubtedly be viewed as the new landmark ruling in the
field of international corporate legal liability for human rights violations under
the ATCA and the TVPA.
4. Issues: Global Protection for Corporate Human Rights Abuse
The Wiwa v. Shell cases represented for many years the symbol of the struggle for
global redress for international human rights violations committed by
multinational companies. However, as they ended with an extrajudicial
settlement, the central issue relating to the establishment of corporate civil tort
liability under the ATCA has never been expressly decided by the Court, and no
precedent has been firmly set.
For decades the ATCA has been a widely used expedient for those who
want to get national Courts to use international human rights law against
multinational companies. Anyway, in the around sixty cases so far, the plaintiffs
have gained a lot of publicity, but none of them have achieved a real victory, as
the most important cases have been settled out of Court.
The ATCA confers federal subject-matter jurisdiction when the following
three conditions are satisfied: (i) the claim is brought by an alien; (ii) the claim is
brought for a tort; (iii) the alleged tort has been committed in violation of the law
of nations. The law of nations derives from different sources, all listed in Article
38 of the Statute of the International Court of Justice (ICJ): (a) international
conventions, whether general or particular, establishing rules expressly
recognized by the contesting States; (b) international custom, as evidence of a
general practice accepted as law; (c) the general principles of law recognized by
114
civilized nations; (d) judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the
determination of the rules of law.
The Wiwa v. Shell cases were grounded on ATCA claims for a breach of
customary international law. Pursuant to the rule established under the Sosa v.
Alvarez-Machain case, in order to give rise to an ATCA claim, a customary
international law provision must be compliant with three criteria: (i) it must be
universally accepted by the civilized world; (ii) it must be defined with a
specificity comparable to the 18th century provisions regarding piracy, the right of
safe passage and offences against ambassadors (which are the historical origins
for the ATCA); (iii) it must be abided by or acceded to by States out of a sense of
legal obligation and mutual concern.
On this basis, in Kiobel v. Royal Dutch Petroleum the Second Circuit Court of
Appeals rejected the proposition that corporations can be punished through a
tort action under the ATCA for conduct that violates customary international
law, on the premise that there is no basis in international law for holding
corporations legally liable. However, the Court did not assess whether the legal
basis for corporate liability can be found in another source of international law,
i.e. the general principles of law recognized by civilized nations. This is the
central argument of the amicus brief recently filed in the case by the CCR and
other international human rights organizations, which emphasizes that
“corporate conduct is regulated under all national legal systems [so that] while the
form of punishment for egregious acts which constitute violations of law,
including international law, may vary, corporate liability for such conduct is
indeed a recognized principle of law”.
This might be a valid argument to ground corporate liability under the
ATCA. Indeed, general principles of law recognized by civilized nations have
been codified as a source of international law not only in the above mentioned
ICJ Statute, but also in other international treaties, such as the Rome Statute of
the International Criminal Court of 1998 (Article 21(1)(c)), the International
Covenant on Civil and Political Rights of 1966 (Article 41(1)(c)) and the Basel
Convention on the Control of Transboundary Movements of Hazardous Wastes
and Their Disposal of 1989 (Article 9).
Moreover, it is worth noting that among the four sources of international
law listed above codified in the ICJ Statute, only the last – judicial decisions and
the teachings of the most highly qualified publicists – is identified as a “subsidiary
means for the determination of rules of law”. Therefore general principles of law
recognized by civilized nations can actually be considered as primary sources of
international law.
115
Should the Supreme Court, in the forthcoming decision in Kiobel v. Royal
Dutch Petroleum, accept said thesis and recognize corporate tort liability for
violations of the law of nations such as torture, extrajudicial executions or
genocide under the ATCA, a form of global redress for international human
rights violations committed by multinational companies would be definitively
affirmed. On the contrary, should the Supreme Court deny corporate liabilities
under international law, human rights suits against businesses in the United States
would suffer a serious setback.
Nonetheless, even if the United States will close the path followed so far to
sue multinational companies, other countries might offer alternative means. In
fact, European Courts, especially in the Netherlands and in Great Britain, have
recently been more active in punishing firms for misdeeds abroad.
Last but not least, the “Guiding Principles on Business and Human
Rights”, presented by John Ruggie – the special representative for the United
Nations Secretary General on business and human rights – and endorsed by the
United Nations Human Rights Council on June 16, 2011, set out important
principles to ensure effective redress for human rights violations perpetrated by
business enterprises. These Guiding Principles expressly recognize corporate
liability for human rights violations and clarify its scope, establishing (in
paragraph 11) that “the responsibility of business enterprises to respect human
rights refers to internationally recognized human rights – understood, at a
minimum, as those expressed in the International Bill of Human Rights and the
principles concerning fundamental rights set out in the International Labour
Organization’s Declaration on Fundamental Principles and Rights at Work” and,
above all, that “the responsibility to respect human rights becomes a global
standard of expected conduct for all business enterprises wherever they operate”.
The latter statement could, it is hoped, represent a valid and persuasive
argument also for the Supreme Court in Kiobel v. Royal Dutch Petroleum, in order to
definitively affirm corporate liability for human rights abuse under the ATCA.
5. Further Reading
a.
b.
M. HAMBLETT, Allegations of Corporate Crimes Against Humanity Going to Trial,
New York Law Journal, May 7, 2009
(http://www.newyorklawjournal.com/PubArticleNY.jsp?id=12024305047
80&slreturn=20120625041043);
A. LONGSTRETH, Cravath to Defend Shell in Alien Tort Claims Trial, The
American Law Litigation Daily, May 5, 2009
116
c.
d.
e.
f.
g.
h.
i.
(http://www.americanlawyer.com/digestTAL.jsp?id=1202430457586&Cra
vath_to_Defend_Shell_in_Alien_Tort_Claim_Trial&slreturn=2012062504
1413);
N. MATHIASON, Shell in Court over Alleged Role in Nigeria Executions, The
Observer, April 5, 2009
(http://www.guardian.co.uk/business/2009/apr/05/shell-saro-wiwaexecution-charges);
G. MONBIOT, Shell: Corporate Impunity Goes on Trial, The Guardian, April 7,
2009
(http://www.guardian.co.uk/environment/georgemonbiot/2009/apr/07/s
hell-trial-saro-wiwa-nigeria);
E. PILKINGTON, 14 years after Ken Saro-Wiwa’s death family points finger at Shell
in Court, The Guardian, May 27, 2009
(http://www.guardian.co.uk/business/2009/may/27/ken-saro-wiwa-shelloil);
Trial trails, The Economist, October 9, 2010
(http://www.economist.com/node/17199924);
J. VIDAL, Shell: Clean-up goes on for Niger Delta and oil company's reputation, The
Guardian, February 3, 2011
(http://www.guardian.co.uk/business/2011/feb/03/shell-nigeria-analysisenvironmentalist-criticisms);
J. VIDAL, Niger delta oil spills clean-up will take 30 years, says UN, The
Guardian, August 4, 2011
(http://www.guardian.co.uk/environment/2011/aug/04/niger-delta-oilspill-clean-up-un);
United Nations Environment Programme, Environmental assessment of
Ogoniland - Full report, August 4, 2011
(www.unep.org/nigeria/).
117
VII.A.11 Socio-Economic Human Rights, National Constitutions and
National Courts: The Mazibuko Case
Mariarita Circi
1. Background
The South African Constitution (1996) provides, in Section 27 (1, 2), that
everyone has the right of access to sufficient water (para. 1) and that “the State
must take reasonable legislative and other measures, within its available resources,
to achieve the progressive realisation of this right” (para. 2).
On the other hand, in the international arena, the clear, broad and explicit
recognition of the right to water as a human right is much more recent, having
occurred only in 2010. Before 2010, the International Covenant on Economic,
Social and Cultural Rights (CESCR), a multilateral treaty adopted by the United
Nations (UN) General Assembly (GA) on 16 December 1966 and entering into
force in 1976, only recognizes the right to water in implicitly Articles 11 and 12
(the right to adequate standard of living, and to “highest attainable standard of
physical and mental health”, respectively). Other specific international human
rights conventions –for instance, the 1979 Convention on the Elimination of
Discrimination against Women and the 1989 Convention on the Rights of the
Child – declare the States parties’ obligation to take appropriate measures to
provide a water supply; however, a detailed definition of the right to water was
only formulated in 2002 by the UN Committee on Economic, Social and Cultural
Rights, the body of eighteen experts that monitors the CESCR. In its General
Comment 15, the Committee asserted that “the human right to water entitles
everyone to sufficient, safe, acceptable, physically accessible and affordable water
for personal and domestic uses”.
However, it was only on July 28, 2010, that the UN GA, adopting
Resolution 64/292, recognized the right to safe and clean drinking water and
sanitation as “a human right that is essential for the full enjoyment of life and all
human rights.” Then, on 24 September, 2010 the UN Human Rights Council
affirmed for the first time that the human right to water and sanitation was legally
binding, stating that “the human right to safe drinking water and sanitation is
derived from the right to an adequate standard of living and inextricably related
to the right to the highest attainable standard of physical and mental health, as
well as the right to life and human dignity”.
118
Finally, on 18 March, 2011 the UN Human Rights Council encouraged the
ad hoc Special Rapporteur, to “promote the full realization of the human right to
safe drinking water and sanitation by, inter alia, continuing to give particular
emphasis to practical solutions with regard to its implementation (…) following
the criteria of availability, quality, physical accessibility, affordability and
acceptability”.
-
South African Constitution
(http://www.info.gov.za/documents/constitution/1996/index.htm);
UN Resolutions
(http://www.un.org/News/Press/docs/2010/ga10967.doc.htm);
Documents related to Mazibuko right to water case
(http://www.wits.ac.za/academic/clm/law/cals/basicservices/11193/mazi
buko.html);
Mazibuko case bibliography
(http://www.wits.ac.za/academic/clm/law/cals/basicservices/11192/publ
ications.html).
3. Analysis
The Mazibuko case concerned the fundamental right to access to sufficient water
in South Africa, as established by the national Constitution.
The case, brought by four residents of Phiri, a township in Soweto
(Johannesburg) with poorly piped water infrastructure, involved the lawfulness of
the installation of pre-paid water meters in the township which charged
consumers for use of water in excess of the 6 kilolitre per household monthly
free basic water allowance. In 2001, the City of Johannesburg and Johannesburg
Water agreed to provide every household with 6 kilolitres of free water per
month per household/account holder. However, the residents of Phiri were to
have their 6 kilolitre free water per month dispensed by a prepaid meter system,
only implemented in 2004. In terms of that system, once the 6 kilolitres had been
consumed, the water supply to the stand was automatically cut off. The affected
account holder then had to purchase water credits in order to be provided with a
continued supply of water until he/she became entitled to the next month’s 6
kilolitres of free water.
119
On 30 April 2008, the applicants succeeded with their case before the
Johannesburg High Court, which judged that the prepay meters should be
considered unlawful and unfair since they caused an automatic shut-down when
the free basic water allocation was exceeded, and a household may have
insufficient funds to purchase water. The Court argued that the right to water
had to be interpreted within the context of the Bill of Rights as contained in the
Constitution. It was interconnected and interrelated with all the other socioeconomic rights, being a common denominator to most rights in the Bill of
Rights and for this reason it could not be subjected to a restrictive interpretation.
The Supreme Court of Appeal overturned this judgment on 25 March,
2009; the applicants then appealed to the Constitutional Court.
On 8 October 2009, the Constitutional Court held that the obligation to
provide sufficient water for everyone established in Section 27 of the
Constitution requires the State “to take reasonable legislative and other measures
to seek the progressive realisation of the right”. Therefore, the Court concluded
against the applicants that neither the water policy adopted by the City of
Johannesburg nor the introduction of pre-paid water meters in Phiri constituted a
breach of Section 27 of the Constitution because these measures were consistent
with the progressive realisation of the right to water.
4. Issues: Socio-Economic Rights Implementation and Budgetary Considerations
This case illustrates the problematic implementation of socio-economic human
rights, such as the right to water, not only at global level but even when they are
entrenched in national constitutions.
This case highlights some important issues. The first concerns the
effectiveness of the right to water.
Although the South African Constitution of 1996 is strongly committed to
socio-economic rights and the South African Court has ruled that these rights are
justiciable, and there are many examples of judicial enforcement of socioeconomic rights in that jurisdiction (see e.g., South Africa v. Grootboom, Minister of
Health v. Treatment Action Campaign, Soobramoney v. Minister of Health, Khosa v.
Minister of Social Development, to quote the most relevant), some concerns have
emerged about the implementation of these rights and the right to water in
particular. From this perspective, how is it possible to combine the progressive
realization of the right to water with its present implementation?
The second concern pertains to the binding force of this right whether it is
proclaimed by international or national legal systems. The guaranteeing of the
right to water, as with the guaranteeing of economic, social and cultural rights in
120
general, requires financial resources, and this can be frustrated by budgetary
considerations – not only at global level, but even in a national legal system, like
the South African one, in which these rights are justiciable. Does this mean that
in the case of socio-economic human rights what matters is budgetary
accountability over and above the legal system, both globally and nationally? In
other words, is budgetary analysis more capable of ensuring that these rights are
implemented and legally binding because it helps to evaluate the compliance of
governments’ decisions regarding human rights?
5. Further Reading
a.
b.
c.
d.
e.
f.
g.
h.
i.
H. CHOMA, “Constitutional Enforcement of Socio-economic Rights: South
African Case Study”, I, Jun. 2009, Volume 6, No.6 (Serial No.55)
(http://www.airiti.com/CEPS/ec_en/ecjnlarticleView.aspx?jnlcattype=0&
jnlptype=0&jnltype=0&jnliid=3427&issueiid=84654&atliid=1669737);*
J. DUGARD, “The Phiri water case (Mazibuko and Others v City of
Johannesburg and Others): Can human rights traverse the
commercialization of water in South Africa?”, 2008
(http://www.nottingham.ac.uk/shared/shared_cssgj/Documents/smp_pa
pers/Dugard.pdf);
N. JHEELAN, “The Enforceability of Socio-Economic Rights”, 2 European
Human Rights Law Review 146 (2007);
A. KOK, M. LANGFORD, “The right to water”, in D. BRAND, C. HEYNS
(eds.), Socio-Economic Rights in South Africa, Cape Town (2005); p. 191 et seq.;
J.C. MUBANGIZI, Prospects and Challenges in the Protection and Enforcement of
Socio-Economic Rights: Lessons from the South African Experience (2007)
(http://www.enelsyn.gr/papers/w13/Paper%20by%20Prof.%20John%20
Cantius%20Mubangizi.pdf);
J.C. MUBANGIZI, “The Constitutional Protection of Socio-Economic
Rights in Selected African Countries: A Comparative Evaluation”, 2 (1)
African Journal of Legal Studies 1 (2006);
I. WINKLER, “Judicial Enforcement of the Human Right to Water – Case
Law from South Africa, Argentina and India”¸1 Social Justice & Global
Development Journal (2008)
(http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2008_1/winkler/).
121
VII.B. Civil Society and Multinational Corporations
VII.B.1 The United Nations Global Compact
Yoav Meer
1. Background
The Global Compact (“GC”) was announced by Secretary-General Kofi Annan
in the World Economic Forum in Davos, Switzerland in 1999. The main premise
of the GC is the attempt to convince TNCs that they can do well (in business) by
doing good (with the globe). Doing good in the eyes of the GC means voluntarily
adhering to ten basic ethical principles. These principles cover four core subjects:
Human rights, the environment, labor, and anti-corruption. The GC was part of
a larger UN scheme called the Millennium Development Goals (launched in
September 2000). Specifically, the Global Compact was associated with the
Eighth Millennium Development Goal. The Eighth Goal recognized the
potential contribution of foreign direct investment and transnational trade to
less-developed nations and called for the launch of a global partnership for
development. Unlike previous UN operations, the GC addresses non-state
actors, such as businesses, NGOs, and global civil society. In part, this course of
action was derived from a UN realization that states may be unable to manage
complex issues or provide solutions to them independently. Diverging from the
traditional state-based approach, the UN began approaching international
organizations, NGOs, local governments, and corporations. Aware that the GC
is bypassing domestic regulatory systems, GC authors chose the “learning
network” approach, rather than creating a regulatory instrument in the traditional
sense. Through the “learning network” the GC founders were hoping to achieve
a ratcheting-up effect. To their dismay and despite their sincere hopes, that did
not occur.
During Kofi Annan’s Secretary-Generalship, the International Chamber of
Commerce (“ICC”) became one of Annan’s favorite interlocutors in his attempt
to bring the global business community in line with the UN’s goals. The ICC was
122
established in 1919 and has been a prominent actor in world business ever since.
Its historical roots go back to the local chambers of commerce that grew in the
19th century. Based in Paris, the ICC became an international organization after
World War I, connecting national chambers of commerce and coordinating their
efforts through expert committees that covered different areas of concern.
Historically, the ICC is one of the oldest international organizations still active,
outliving the League of Nations, and preceding the UN.
Since its commencement, the ICC has assumed different capacities and has
engaged with various issues: protecting trade, providing a deliberative forum for
world business, creating an epistemic community of businesspeople, and
facilitating international networks. The ICC often involved itself in high-level
politics and diplomatic efforts and has attempted to partner with other
international organizations, most notably the International Labour Organisation
(ILO) in the 1920s. The ICC was also involved in the early drafts of the General
Agreement on Tariffs and Trade (GATT). Throughout its operation, the
organization has interacted with local governments, civil society, and
international organizations. Its partnership with the UN began in 1946 when the
ICC was given a consultative status with the UN Economic and Social Council
(ECOSOC). In recent decades, however, public perception of the ICC has begun
to change. The economic growth and prosperity of the developed countries on
the one hand, and the stagnation in developing countries along with the rise of
transnational conglomerates that have squeezed out domestic firms on the other,
has made the public more antagonistic to TNCs. TNCs are also seen as posing
threats to health, biodiversity, and sustainability. Frequently, allegations regarding
abuses of people in less-developed countries and of their natural resources for
the benefit of TNCs have been made. Accordingly, the reputation of the ICC,
which was seen as representing the interests of those TNCs, has suffered in equal
measure.
In 1998, the UN and the ICC issued a joint press release, stating that “there
is great potential for the goals of the United Nations – promoting peace and
development – and the goals of business – creating wealth and prosperity – to be
mutually supportive […] The United Nations and the business community
should work jointly.” From this cooperation between the ICC and the UN, the
GC was conceived. The GC originally included nine principles, all derived from
well-recognized international documents: The Universal Declaration on Human
Rights, the Rio Declaration on Environment and Development, and the
International Labour Organisation’s Fundamental Principles on Rights at Work.
A tenth principle was added in June 2004, after the UN adopted the Convention
against Corruption. By contrast to other forms of regulation, the GC does not set
any express requirements, nor does it include a rigid code of conduct or
123
enforcement and compliance mechanisms. Operating under the learning network
theme, the GC is entirely voluntary and it is intended to facilitate learning and
information sharing. Each GC participant submits reports that include case
studies and reports of its operations, and how it has dealt with problematic
issues. That information is then made available to other participants (and in some
cases is available online) in order for them to learn from it. The reports include
examples of commitments under the GC being translated into concrete corporate
practices. Ultimately, the information network created is intended to generate
consensus-based definitions of what is considered good practice.
Principle 1 and Principle 2 of the GC are about human rights. Principle 1
stipulates that “businesses should support and respect the protection of
proclaimed human rights.” Under Principle 2, companies pledge to ensure that
they are not complicit in human rights violations. Principles 3-6 cover basic labor
issues, including the protection of the freedom of association, collective
bargaining, a prohibition on child and forced labor, and “discrimination in
respect of employment and occupation.” Principles 7-9 incorporate basic
environmental standards. Participants take it upon themselves to “support a
precautionary approach,” “promote greater environmental responsibility,” and
encourage the development and diffusion of environmentally friendly
technologies. Pursuant to Principle 10, businesses should work against all forms
of corruption, including extortion and bribery.
When a participant joins the GC, it takes upon itself three major
commitments: First, to promote the GC in its statements, public reports, and all
other publicly-issued correspondence; second, to submit an annual report to the
GC website; and third, to take part in other related UN projects. The core of the
GC, it seems, is the second requirement, often referred to as the annual
Communication on Progress (“COP”). GC members are required to submit a
COP, which is intended to guarantee and intensify their commitment to the GC,
whilst still preserving the integrity of the global initiative. Failure to comply with
the COP requirement results in online “grey listing.” Companies that sign up for
the Compact are given an initial adjustment period of a year, in which they are
not required to submit any reports. After the first year and for the first five years,
businesses are only required to report on their treatment of two out of four core
subjects (human rights, the environment, labor, and anti-corruption). After five
years of participation, reports should include all four subjects. Should a company
fail to meet the COP requirement, it becomes “non-communicating”. A year
later, if it still has not communicated the report, it is termed “inactive”.
Additionally, GC members are invited to affiliate themselves with various UN
organizations, as well as international labor, environmental, and human rights
organizations. Overall, the GC offers participants several engagement
124
mechanisms: leadership (independent initiatives to promote the GC); dialogues
(policy discussions with other GC members); learning (the dissemination of
knowledge between participants through the sharing of case-studies), and
regional or local networks (which provide a platform for lower-scale partnerships
and dialogues). In addition to its global operation, the Compact also operates
through approximately sixty local networks. Essentially, these mirror the role of
the GC Office at the local or regional level. Some local networks are selfsustaining, whereas others are still in the early stages of their development. These
local networks have proven to be an important platform for implementation.
The GC’s internal administration is comprised of three main organs: The
Executive Board, the GC Office, and a UN interagency team. The GC Board
includes representatives from the business community, labor organizations, and
civil society. They are appointed in their personal capacities by the SecretaryGeneral, who also acts as the Chairman of the Board. The Board is responsible
for overseeing the GC’s operations and members’ implementation through
various measures, including the COP requirement. Additionally, the Board
provides guidance to the GC Office in relation to broad strategic matters.
The second important organ is the Office, which connects all the different
stakeholders in the GC. It supports the expansion of the GC and advocates for it
in various fora. The Office’s Executive Director is appointed by the SecretaryGeneral and reports directly to him. The Office is responsible for the overall
operation of the Compact, including participation-management and COPs. Its
actions may be reviewed by the governments that fund the GC and by the
General Assembly. Despite the absence of a direct reporting line between the
two bodies, the Office has a close relationship with the Board. It responds to the
Board’s requests and acts as a secretariat for different Board decisions.
The third GC-organ is the interagency team. It is composed of staff
members from related UN organizations. These staff members influence the
Compact’s operation and support its implementation through the work of their
respective agencies.
-
United Nations Global Compact home page
(http://www.unglobalcompact.org/);
UNGC’s Ten Principles
(http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/inde
x.html);
-
125
UNGC participants and stakeholders
(http://www.unglobalcompact.org/ParticipantsAndStakeholders/index.ht
ml);
International Chamber of Commerce homepage
(http://www.iccwbo.org/)
ICC public announcement on the GC, Global Compact Leaders Summit,
June 2004, New York
(http://www.iccwbo.org/policy/society/id1185/index.html);
Joint statement regarding the GC by the ICC and the Secretary-General of
the UN
(http://www.iccwbo.org/id406/index.html);
UN Millennium Development Goals
(http://www.undp.org/mdg/goals.shtml);
Joint statement on common interests by the Secretary-General of the
United Nations and the International Chamber of Commerce, Feb. 1998
(http://www.iccwbo.org/id383/index.html);
United Nations Global Compact Annual Review 2008
(http://www.unglobalcompact.org/docs/news_events/9.1_news_archives
/2009_04_08/GC_2008AR_FINAL.pdf);
Kofi Annan’s address to World Economic Forum in Davos, Feb. 1998
(http://www.un.org/News/ossg/sg/stories/statments_search_full.asp?stat
ID=22);
Policy for the “Communication on Progress” (COP)
(http://www.unglobalcompact.org/docs/communication_on_progress/C
OP_Policy.pdf);
Global Compact Governance
(http://www.unglobalcompact.org/docs/about_the_gc/governance_updat
e2008.pdf).
3. Analysis and Issues: The UN-ICC Partnership, Stakeholder Compliance, and The GC’s
Impact
The GC was the result of a UN-ICC partnership. What led these two bodies to
partner with each other and create the Compact? For the UN, the partnership
was an entry ticket to the business world, an environment in which its influence
was very weak. Given the UN’s bad relationship with the business world, UN
executives believed that in order for the GC to work, an alliance must be created
with the ICC. Additionally, the ICC had some experience with similar initiatives
and has worked in cooperation with other international organizations.
126
Furthermore, in the post-Cold War years, the UN was struggling to “re-invent”
itself, in order to maintain its status and standing. The launch of the GC also
endowed the UN with financial gains that came in form of corporate
philanthropy and corporate investment in UN-related development projects.
From the ICC’s point of view – struggling to find a proper balance between the
private interests of its members and an increasingly informed and aware public –
the UN was an important promoter and supporter of regulatory frameworks for
globalized business. The ICC’s partnership with the UN seemed natural
considering its close partnerships with national governments and supranational
bodies (most notably the European Union). The UN-ICC partnership branded
the Compact as morally right and allowed the ICC to maintain its role as a global
actor, representing all business entities worldwide. The UN’s involvement was an
important contribution to the ICC’s advocacy for free trade and capitalism and it
allowed the ICC to make a plausible claim that trade can assist with the
protection of human rights. Moreover, the partnership provided both
organizations with arguments as to why these issues (and similar ones) should not
be addressed by competing IOs, such as NAFTA, the EU, the World Bank, the
IMF, the OECD, and the WTO.
Why do corporations join the GC? The most obvious reason is “blue
washing”, a company’s desire to create a good image and to present itself as a
valued global corporate citizen, often in an attempt to recover a bad reputation or
improve an average one. Second, it is quite possible that corporations join the
GC to honestly learn. They perceive the UN and its agencies as epistemic
communities that acquire broad bodies of knowledge and experience. By signing
the GC, companies are given access to those valuable resources. Likewise,
through the GC network, companies can learn from each other. Third,
partnering with the UN provides companies with access to new markets, under
the auspices of the UN or with its support. Fourth, by joining the GC, businesses
create the impression that their operation is in line with internationally agreed
upon standards or norms. They indicate to national regulators that they are in
compliance with recognized standards and that no further intervention is
necessary. The stamp provided by the UN creates the often unjustified
impression that a particular business is acting in good faith and is accordingly less
likely to be in breach of domestic or other regulations. Moreover, when a
corporation wishes to act in compliance with domestic regulations, the GC may
function as a capacity building exercise. Fifth, when a company “does good”, its
conduct is likely to have an effect on its employees as well. Presumably, they will
be happier, more productive and will be appreciative of their employer’s efforts.
The premise seems to be that businesses are not likely to partner with the UN for
philanthropic reasons only. TNCs presumably join the initiative based on their
127
belief that they have, first, a direct interest in joining, and second, that it will assist
in the achievement of their long-term goals. They assume that the GC would
promote their interests through transfer of knowledge, increased awareness by
civil society, capacity building, opening up resources and opportunities (and
occasional spin-offs such as new business partnerships), developing new
products, entering new markets, and so on.
Thus far, I have explained what the GC is. At this point, it is important to
stress what it is not, and why. The GC was never intended to become a commandand-control regulatory instrument. It does not include an explicit code of
conduct, performance criteria, or monitoring and compliance mechanisms. Why,
then, did the UN choose this path? First, the Secretary-General doubted that the
General Assembly would adopt a meaningful code. Member-States would have
seen the GC as challenging, bypassing, overriding, or preempting their national
regulatory schemes. Similarly, if the UN were to unilaterally stipulate a code of
conduct, the business community would likely react negatively and strongly reject
the idea. Second, creating a command-and-control mechanism would have
imposed a huge financial burden on the UN. The organization would have had to
invest huge amounts of money first in developing precise, measurable standards,
and then in monitoring compliance and seeking enforcement of suggested
norms. According to some UN officials, they believed that many of the GC
principles cannot be quantified, nor can they be defined with the precision
required of a command-and-control regime. The hope was that with the network
provided by the GC, these definitions would be elaborated through collective
learning, trial and error, and the sharing of individual experience. Furthermore,
because technology and corporate practices change so quickly, it would have
been difficult to include all possible criteria and practices into a code. The
premise was that the GC will become a learning forum, and will operate as a
dynamic, ever-evolving instrument. Companies will learn from each other, thus
reacting to the changing external conditions more efficiently and in an
expeditious manner. The creators of the GC hoped that, in time, a greater
demand for codification would arise, based on learning and experience. The
assumption was that corporate leaders, wishing to maintain their competitive
advantage, would push towards more explicit definitions of best, rather than
merely good, practices.
Further criticisms of the GC suggest that it is inappropriate– both
institutionally and normatively – for the UN to be involved with profitmaximizing corporations. To these critics, profit-maximization on the one hand,
and human rights and environmental protection on the other, cannot be
reconciled altogether. Moreover, in the absence of any independent monitoring
and reviewing of participants’ conduct, the GC seems to be lacking any serious
128
oversight mechanisms. Nor does the GC include any penalties in case of breach
(other than de-listing). Thus, its practical influence has been called into question.
Critics also point to the fact that US companies have not joined the Compact in
great numbers as an indicator of its limited success.
With respect to its substance, it has been argued that the Compact is an
uncertain document that lays down undetermined goals. The Principles are vague
and set out in very broad definitions. What the Compact intends to become in
the future, and whether it is intended to replace or rather complement other
regulatory approaches, is equally unclear. Its vagueness and generality are
counter-productive in at least two ways: first, companies interested in “blue
washing” will abuse the Principles, easily circumventing or complying with them,
without doing anything to promote the GC’s main goals. It is easier for GC
participants to claim that their conduct is consistent with the GC when there are
no clear definitions for substantive compliance. Consequently, the GC does not
increase (in any meaningful way at least) public or legal liability. The vagueness of
the GC makes it harder to claim that participants have breached it. Second, an
honest corporation acting in good faith may find the language not directive
enough for implementation.
However, it is possible that the choice to construct the GC as a set of
substantive norms may be the reason for its popularity. A set of procedural
requirements would have been very costly for participants. It would have meant
bigger adjustment and compliance costs. Accordingly, actors would have been
deterred from joining, as they may have been unwilling or unable to bear such
costs. This is particularly true for the many small businesses that today constitute
a large part of the GC enterprise. Additionally, because of the ambiguity of the
GC Principles, each participant can work with its own interpretation. One might
argue that this increases the chances of striking the optimal balance in the
conduct of each business. A company executive often has the best information
and is best-suited to make decisions regarding his company’s operations.
Presumably, his decisions will be well-informed and using a cost-benefit analysis
he will reach an optimal outcome. The vague GC standards allow for individual
interpretation, which may take account of the size of the company, the industry
to which it belongs, and so on. This ambiguity also means that there are no
definitive standards. Under the learning network approach, bad practices will
improve, through iteration and reiteration, and ultimately the mutual learning
experience will lead businesses to arrive at the best solution for them. By
communicating ideas to each other and learning from the mistakes of their peers,
companies take part in a “marketplace of ideas”.
Despite its many drawbacks, the GC has made some noteworthy
contributions. It was important in establishing the now widely-held view that
129
other transnational regulatory efforts (e.g., the OECD Guidelines for
Multinational Enterprises), and/or corporate self-regulation, are insufficient to
address the misbehavior of TNCs. Moreover, the influence of GC Principles is
constantly expanding and reference to them is often made by other regulatory
instruments. For instance, the Norwegian government-operated pension fund
“aims to follow […] the Global Compact”. Presumably, it will not only seek to
run its own operations in compliance with the GC, but will also invest only in
businesses that are likewise inclined. In similar fashion, some corporations will
only purchase products or associate with GC members. The GC’s effectiveness
may be assessed through this optic. Moreover, GC membership allows TNCs to
liaison with NGOs, local governments, and other stakeholders, in a way unseen
before. Members may scrutinize the COPs lodged by others, engaging in dialogue
with each other, and ultimately influencing each other’s actions. Another
significant aspect of the GC is that it is a milestone contract between the UN and
corporations. This is significant as it is a recognition of the global role that
corporations play, or seek to play, in international law. On the flip side, it is also a
recognition made by TNCs of the UN’s global role.
A further major achievement has been the introduction of the idea of
corporate social responsibility (“CSR”) to Brazil, Russia, India, and China
(“BRIC”). In the past, companies in those countries, as well as civil society, were
not aware of the concept of CSR. Through the overarching development of
regional networks in BRIC, a multi-stakeholder discourse was achieved for the
first time. Perhaps the key to evaluating the Compact’s success lies in seeing it
not as a regulatory instrument, but rather as a supplementary tool to domestic
regulation. The Principles assist corporations with the implementation of
domestic regulation, acting as a moral compass. Corporations may learn what is
good practice through participating in the learning network. Through these
practices, executives are presumed to feel more strongly obligated to the
Principles as they are socialized into believing in them. Reiteration, repeated
practice, and peer-review are all measures of implementation taken of which the
GC makes use.
4. Further Reading
a.
O.A.J. BRENNINKMEIJER, “Business and Civil Society Partnerships with the
United Nations: Public Policy Challenges under the Impact of
Globalization and Implications for International Order”, in Y.A.
STIVACHTIS (ed.), International Order in a Globalizing Order (2007) p. 15 et seq.;
130
b.
c.
d.
e.
f.
g.
h.
S. DEVA, “Corporate Complicity in Internet Censorship in China: Who
Cares for the Global Compact or the Global Online Freedom Act?”, 39
Geo. Wash.Int’l.L.Rev. 255 (2007);
S. DEVA, “Global Compact: A Critique of the U.N.’s “Public-Private”
Partnership for Promoting Corporate Citizenship”, 34 SYRACUSE
J.Int’l.L.&Com. 107 (2006);
D. ELSON, “Human Rights and Corporate Profits”, in L. BENERIA, S.
BISNATH (eds.), Global Tensions: Challenges and Opportunities in the World
Economy (2004) p. 45, 51;
J. GERRARD RUGGIE, “The Theory and Practice of Learning Networks:
Corporate Social Responsibility and the Global Compact”, 5 J. Corp.
Citizenship 31 (2002);
B. HOCKING, D. KELLY, “Doing the Business? The International Chamber
of Commerce, the United Nations, and the Global Compact”, in A.F.
COOPER, J. ENGLISH, R. THAKUR (eds.), Enhancing Global Governance:
Towards a New Diplomacy, Tokyo, New York, Paris (2002) p. 203, 206;
E. OSHIONEBO, “The U.N. Global Compact and Accountability of
Transnational Corporations: Separating Myth from Realities”, 19 Fla.J.Int’l
L. 1, 30 (2007);
T. SAGAFI-NEJAD, J.H. DUNNING, “The UN and Transnational
Corporations: From Code of Conduct to Global Compact”, 196 (2008).
131
VII.B.2 OECD Guidelines for Multinational Enterprises: The Aker
Kvaerner Case – Corporate Social Responsibility and Human
Rights at Guantanamo Bay
Matthias Goldmann
1. Background
The OECD Guidelines for Multinational Enterprises (the Guidelines) are one of
the most important international instruments for the regulation of corporate
social responsibility. They date from 1979 and have since been revised several
times, most recently in 2011. The purpose of the Guidelines is to establish a
minimum standard for the conduct of business activities abroad in order to
establish a level playing field, prevent harmful regulatory competition among host
countries in search of competitive advantages, and provide a safeguard against
weak law enforcement. The Guidelines consist of several chapters setting out
rules for business conduct in areas such as human rights, employment and
industrial relations, environment, corruption, competition, consumer interests,
and taxation. As far as human rights are concerned, they are consistent with the
UN Guiding Principles on Business and Human Rights endorsed in 2011 by the
UN Human Rights Council.
The Guidelines are a soft law document. They do not stipulate binding
obligations for states or companies. However, the Guidelines are accompanied by
a decision of the OECD on implementation procedures for the Guidelines which
is binding for the member states of the OECD as well as for a number of other
states, mostly emerging economies, which have declared their adherence to the
Guidelines. The decision on implementation procedures obliges states to
establish National Contact Points (NCP) in their jurisdiction. NCPs are not only
responsible for the promotion of the Guidelines, but also for a non-binding form
of dispute settlement and public interest litigation concerning their application.
Thus, affected persons or interest groups such as NGOs and trade unions may
file “specific instances” with the NCP of the host or home state of a company. If
the NCP deems that the issues raised merit further consideration, it will bring the
parties together and try to find an agreed solution. If successful, the NCP will
issue a report on the agreement reached. If not, the NCP will issue a statement in
which it will make recommendations as to how the Guidelines should be
implemented. States have some leeway regarding the establishment and
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composition of their NCP. Usually, it is affiliated with a government ministry,
but it may also include representatives from the business community and trade
unions.
The Aker Kvaerner case of 2005 is one of only few instances in which a
such a complaint has been brought against a company for human rights
violations. In June 2005, the Norwegian NGO consortium “Forum for
Environment and Development” (ForUM) filed a specific instance against
Norwegian company Aker Kvaerner for an alleged breach of the OECD
Guidelines. It submitted that Aker Kvaerner had carried out construction works
at the US military base at Guantanamo Bay through its fully-owned US-American
subsidiary Kvaerner Process Services Inc. (KPSI) since 1993. After Guantanamo
Bay began being used as a prison for suspected terrorists in the course of the war
of the US and its allies against Afghanistan, KPSI allegedly engaged in the
construction of basements for the detention facilities, and the construction and
maintenance of electricity and water supplies and the sewage system.
ForUM pointed out that the prison at Guantanamo Bay violated the rights
of the detainees, submitting reports by the International Committee of the Red
Cross and several human rights NGOs as evidence. Accordingly, the detention at
Guantanamo Bay violated the international prohibition of arbitrary arrest and
detention (Art. 9 of the Universal Declaration of Human Rights, Art. 9(1) of the
International Covenant on Civil and Political Rights), as well as the prohibition of
torture through deprivation of sleep and the use of violence (Art. 7 of the
International Covenant on Civil and Political Rights, Art. 2 of the UN
Convention Against Torture). ForUM concluded that Aker Kvaerner violated the
detainees’ human rights by “contributing to a prison system that abuses
international law and core human rights”.
Aker Kvaerner submitted that it did not engage in human rights violations.
Also, its activities at Guantanamo Bay were subject to continuous ethical
evaluations. In addition, the detention facility had been built long after the
beginning of its activities. It further emphasized that its activities would end in
2006 because the contract had not been prolonged.
The Norwegian NCP, which consists of representatives of the ministries
for foreign affairs and trade and industry as well as confederations of enterprises
and unions, conducted meetings of the parties to the specific instance at which
no agreement was reached.
133
-
OECD Guidelines for Multinational Enterprises (2011 edition)
Complaint against Aker Kvaerner by ForUM
(http://oecdwatch.org/files/forum-complaint-aker-kvaerner);
Statement by the Norwegian NCP
(http://www.oecd.org/dataoecd/43/29/48004323.pdf).
3. Analysis
On 29 November 2005, the Norwegian NCP issued a statement in the specific
instance submitted by ForUM, in which it discussed the alleged violation of
human rights by Aker Kvaerner through its subsidiary KPSI. It first emphasized
that the case was not about Aker Kvaerner violating human rights. Human rights
were binding on states, not on companies. But companies might become
accomplices to, or profit from, human rights violations.
The NCP then went on to establish that the prison at Guantanamo Bay
violated several human rights and standards of humanity, including the
prohibition of torture and cruel punishment as well as basic rule of law
guarantees. The NCP based these findings on NGO reports. It went on to
establish that Aker Kvaerner through its subsidiary contributed to the
maintenance of infrastructure such as electric power and water supply and that
the operation of the prison depended on this infrastructure. Therefore, the NCP
concluded that Aker Kvaerner had to bear accessorial responsibility for the
human rights violations.
In addition, the NCP was critical of Aker Kvaerner for failing to provide
sufficient information about the scope of its activities at Guantanamo Bay, even
though this would have been possible without a violation of its duties of
confidentiality. Therefore, the exact nature and extent of its activities remained
unclear. The NCP further complained that Aker Kvaerner had provided no
documentation about the ethical assessments which it allegedly carried out, no
information about any involvement of its executive board in these assessments,
and no precise information about the standards applied, other than admitting that
the OECD Guidelines had not been among them. The NCP found that Aker
Kvaerner, in the course of its application for a renewal of the contract due to
expire in 2006, and thus after the installation of the prison at Guantanamo Bay,
should have undertaken a documented evaluation of the ethical implications of
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its continuing involvement at the site. It concluded by urging the company to
establish ethical guidelines for its foreign operations.
4. Issues: Soft Horizontal Human Rights Obligations and Their Limits
The Aker Kvaerner case raises at least three issues of general significance in the
context of the debate about business and human rights. First, it contains a
questionable statement of the extent of the human rights obligations of
multinational enterprises; second, it raises the issue of the limits of accessory
responsibility for human rights violations, in particular in case of socially
adequate activities; and third, it confronts the issue of under which circumstances
NCPs can decide on the legality of acts of foreign states.
Regarding the human rights obligations of multinational enterprises, the
premise of the NCP that human rights were addressed to states only and that
companies may only incur accessory responsibility raises some doubts. In fact,
the Guidelines of 2000 in force at the time of the case at hand establish a nonbinding duty for companies to respect the human rights obligations applicable in
the host state in the conduct of their own activities. Para. 4 of the commentary to
the 2000 Guidelines on “General Policies” (the chapter dealing inter alia with
human rights) clearly states that “while promoting and upholding human rights is
primarily the responsibility of governments, where corporate conduct and human
rights intersect enterprises do play a role, and thus multi-national enterprises are
encouraged to respect human rights […]”. One could therefore say that the
guidelines themselves establish a soft “horizontal” effect for human rights
obligations, imposing on companies a non-binding duty to respect human rights
in their operations. Thus, by focusing too much on the fact that human rights
impose binding obligations only on states, the NCP overlooked that the
Guidelines, according to the commentary on General Policies, establish
“standards of behaviour of a non-legal character”. Thus, human rights
obligations under the Guidelines go beyond accessory responsibility.
The 2011 version of the Guidelines confirms the non-accessory character
of human rights obligations of companies. According to para. 1 of Chapter IV of
the Guidelines on human rights, companies should respect “internationally
recognized human rights” in their operations. It thus goes beyond the reference
to the international human rights obligations of the host state, establishing a
global standard of human rights for companies of its own. By contrast, para. 2
deals with the issue of accessory responsibility, stipulating that companies should
135
not contribute to human rights violations committed by a state. If para. 2 is to be
meaningful, para. 1 must be read as going beyond accessory responsibility.
Regarding the second issue about the limits of accessory responsibility, the
Aker Kvaerner case raises the question as to when an apparently socially adequate
activity, like the construction or maintenance of water supply systems, may
amount to complicity in human rights violations. The NCP argued that the
running of the prison “depended” upon the works carried out by Aker
Kvaerner’s subsidiary. This does not appear to be a meaningful criterion. On the
one hand, it seems underinclusive. There may be activities on which the
operation of the prison does not depend, but which nonetheless appear ethically
dubious (e.g., the provision of ice cream to the staff). On the other hand, it also
seems overinclusive. The operation of the Guantanamo Bay prison might well
depend on an infrastructural element of the US government or military, such as
an IT system, which has no direct relationship with the prison alone, but is
instead used all over the country. An overly wide take on accessory responsibility
might make it difficult for companies to cooperate with governments which do
not fully respect human rights in all cases, even though the cooperation as such
might also have positive effects on human rights. Therefore, it seems advisable to
limit accessory responsibility to activities standing in close temporal, local, or
functional proximity to human rights violations.
Thirdly, the case raises the question of the extent to which NCPs may
assess the policies of foreign states. Not being a legal review mechanism in the
strict sense, state immunity according to the doctrine of “par in parem non habet
iudicium” does not apply. However, this case was not concerned with a purely
Norwegian affair either, but in essence dealt with acts of the US government.
Procedural means might be employed to mitigate any ensuing diplomatic or legal
problems. The implementation procedures recommend that NCPs, if needed,
consult with other NCPs, in particular those of the host state. This might open a
procedural avenue for giving foreign governments a say in specific instances
which put their acts under review.
5. Further Reading
a.
b.
J. LETNAR CERNIC, “Corporate Responsibility for Human Rights: A Critical
Analysis of the OECD Guidelines for Multinational Enterprises”, 3 Hanse
Law Review 71 (2008);
S.R. RATNER, “Corporations and Human Rights: A Theory of Legal
Responsibility”, 111 Yale Law Journal 443 (2001);
136
c.
d.
G. SCHULER, “Effective Governance through Decentralized Soft
Implementation: The OECD Guidelines for Multinational Enterprises”, in
A. VON BOGDANDY, R. WOLFRUM, P. DANN, J.VON BERNSTORFF, M.
GOLDMANN (eds.), The Exercise of Public Authority by International Institutions
(2010), p. 197 et seq.;
M. ULBRICH, “Enforcing Core Labour Rights through the OECDGuidelines for Multinational Enterprises? Reflections on the Guidelines’
Conciliation Process and the Current Linkage Discussion”, 18 Zeitschrift für
ausländisches und internationales Arbeits- und Sozialrecht 366 (2004).
137
VII.B.3 The Equator Principles: Voluntary Standards in Project Financing
Yoav Meer
1. Background
In 2002, the International Finance Corporation (IFC, part of the World Bank) set
up a meeting with heads of the world’s largest financial institutions in Greenwich,
England. The declared aim of the meeting was to discuss the environmental and
social impacts involved in project finance. Together, they created an industry
code of conduct that was launched in 2003. The Equator Principles (“EP”) are a
voluntary framework for environmental and social risk-management, in respect
of project finance. They are based to a large extent on the World Bank
Guidelines, IFC Performance Standards, and OECD policies, all expressly
referred to within the Principles. The Principles apply to all project finance
transactions and project advisory services with a total capital cost of more than
USD 10 million. By now, the EP have been signed by more than fifty financial
institutions, jointly responsible for about 80% of Foreign Direct Investment
(“FDI”) globally.
There are ten “Equator Principles”. Essentially, they are arranged
chronologically: The first two principles require a review of the proposed project,
its potential social and environmental risks, and their possible implications. Then,
the project is categorized according to criteria provided for by the IFC. Category
A projects are considered to have “potential significant adverse social or
environmental impacts that are diverse, irreversible or unprecedented.” Category
B is defined as “projects with potential limited adverse social or environmental
impacts that are few in number, generally site-specific, largely reversible and
readily addressed through mitigation measures.” Category C refers to projects
with “minimal or no social or environmental impacts.” Following this
categorization, the borrower will perform a social and environmental impact
assessment (“EIA”). The EIA should contain ways for mitigating or managing
the possible adverse effects in a way appropriate to the nature and scale of the
project, and “to the EPFI’s [Equator Principles Financial Institution’s]
satisfaction.” Principle 3 creates a distinction between different groups of
countries. For projects located elsewhere than in OECD high-income countries
(i.e., countries that are not OECD members, or alternatively, those that are
OECD members but are not defined as “high income” states), the EIA is to be
138
conducted with reference to the IFC Performance Standards and the Industry
Specific Environmental, Health, and Safety (“EHS”) HS Guidelines. The EIA
must demonstrate compliance with the Standards and the Guidelines, or provide
a justification for any deviation from them. As for high income OECD countries,
based on the presumption that “[T]he regulatory, permitting and public comment
process requirements… generally meet or exceed the requirements of the IFC
Performance Standards… and EHS Guidelines”, the EP require a much less
rigorous EIA. This lower standard is designed “to avoid duplication and
streamline EPFI’s review of these projects”. In respect of projects carried out in
high income OECD countries, the successful completion of an EIA or
equivalent procedure under the local law is considered to be an acceptable
substitute for the IFC Performance Standards, EHS Guidelines, and all other
requirements provided for in Principles 4-6. Essentially, projects that take place
in high-income OECD countries are excluded from major aspects of the EP.
Under Principle 4, for a Category A or B project, the borrower must come
up with an Action Plan. The Plan must address the findings of the EIA and
include a description and a prioritization of the actions needed to mitigate,
monitor, and manage the risks identified in the Assessment. Borrowers are also
required to “build on, maintain, or establish a Social and Environmental
Management System that addresses the management of these impacts, risks and
corrective actions required to comply with applicable host country social and
environmental laws and regulations, and requirements of the applicable
Performance Standards and EHS Guidelines”. Furthermore, Principle 4
stipulates that when operating in high-income OECD countries, EPFIs have the
option of requiring the borrower to develop an Action Plan “based on relevant
permitting and regulatory requirements, and as defined by host-country law”.
Principle 5 provides that all Category A projects, and Category B projects
located elsewhere than in OECD high income countries, are required to provide
for a large degree of “Consultation and Disclosure”. The national government,
the borrower, or any third party experts involved in the project are asked to
consult with “project-affected communities” in a “structured and culturally
appropriate manner”. With regard to the affected communities, the Consultation
and Disclosure process seeks to “ensure their free, prior and informed
consultation and facilitate their informed participation as a means to establish, to
the satisfaction of the EPFI, whether a project has adequately incorporated
affected communities’ concerns”. The Action Plan should be made available to
the public by the borrower. It must remain available for a reasonable time, in the
relevant local language, and in a culturally appropriate manner. While proceeding
with the project, the borrower is required to take account of the consultation and
make records of it, including the outcomes of the consultation. When necessary,
139
disclosure of relevant facts to the EPFI is to be made early in the assessment
process (in any event before the project construction commences), and on an
ongoing basis.
Under Principle 6, for all Category A projects, along with Category B
projects elsewhere than in OECD high income countries, the borrower must
establish a grievance mechanism as part of its management of the project.
Furthermore, the borrower must inform the local communities of the existence
of the grievance mechanism, and ensure that “the mechanism addresses concerns
promptly and transparently, in a culturally appropriate manner, and is readily
accessible to all segments of the affected communities”. Principle 7 suggests that
for Category A projects, and when appropriate for Category B ones as well, an
independent expert will be appointed. The expert will review the EIA, Action
Plan, and other related documents, and on that basis will assist the EPFI with its
due diligence and EP compliance assessments.
According to Principle 8, for all Category A and B projects, the borrower
must undertake to comply with the host country’s social and environmental laws,
as well as with the Action Plan, in all “material aspects”. Moreover, the borrower
must provide periodic reports (the frequency of the reports should be
proportionate to the severity of the impacts, or as required by law, but not less
than once a year). The reports must include a record of compliance with the
Action Plan and provide evidence of compliance with relevant local, regional, and
national social and environmental laws, regulations and permits in the host
country. Furthermore, the borrower must undertake to decommission all
facilities, where applicable and appropriate, in accordance with a
“decommissioning plan”. Upon a breach of this Principle, EPFIs will “work with
the borrower to bring it back into compliance to the extent feasible”. If the
borrower fails to re-establish compliance, “EPFIs reserve the right to exercise
remedies, as they consider appropriate”.
Principle 9 establishes a discretionary independent monitoring and
reporting mechanism. For all Category A projects, and where appropriate also for
those in Category B projects, EPFIs may insist that the borrower retain “qualified
and experienced external experts to verify its monitoring information”. In turn,
that information will be shared with other EPFIs. Finally, Principle 10 orders the
EPFIs to publish an annual report containing information regarding the
“implementation processes and experience, taking into account appropriate
confidentiality considerations”. As a footnote to Principle 10 explains, “Such
reporting should at a minimum include the number of transactions screened by
each EPFI, including the categorisation accorded to transactions (and may
include a breakdown by sector or region), and information regarding
implementation”. Importantly, the EP end with a disclaimer: “these Principles do
140
not create any rights in, or liability to, any person, public or private. Institutions
are adopting and implementing these Principles voluntarily and independently,
without reliance on or recourse to IFC or the World Bank”. Notably, most duties
and obligations under the EP are imposed on the borrowers, especially those
operating in less-developed countries (those not classified as OECD high income
States).
Additionally, parties to the EP are expected to adopt their own internal
policies and procedures in order to better implement the general EP framework.
Each FI is meant to include the Principles in its operations, including risk
management and legal processes, in a manner consistent with its organizational
structure. Many EPFIs have made significant steps towards the implementation
of the EP, and some have adopted new policies that go beyond the EP.
-
Equator Principles homepage
(http://www.equator-principles.com/);
The Principles
(http://www.equator-principles.com/resources/equator_principles.pdf);
The Equator Principles page on Banktrack
(http://www.banktrack.org/show/pages/the_equator_principles);
The Equator Principles Strategic Review
(http://www.ep-strategic-review.com/);
Baku-Tbilisi-Ceyhan oil pipeline on Banktrack
(http://www.banktrack.org/show/dodgydeals/baku_tbilisi_ceyhan_oil_pi
peline);
Paper pulp mill case on Banktrack
(http://www.banktrack.org/show/dodgydeals/botnia_pulp_and_paper_m
ill);
IFC Guidelines
(http://www.ifc.org/ifcext/sustainability.nsf/Content/EHSGuidelines);
IFC Performance Standards
(http://www.ifc.org/ifcext/sustainability.nsf/Content/PerformanceStanda
rds);
OECD Website
(http://www.oecd.org/);
WB Website
(http://www.worldbank.org/);
-
141
WWF-UK and BankTrack, “Shaping the Future of Sustainable Finance:
Moving the Banking Sector from Promises to Performance”
(http://www.wwf.org.uk/filelibrary/pdf/sustainablefinancereport.pdf);
Bank Trak “Bold Steps Forward Towards Equator Principles that deliver
to people and the planet” Nijmegen, Netherlands, January 14 2010
(http://www.banktrack.org/download/bold_steps_forward_towards_equa
or_principles_that_deliver_to_people_and_the_planet/100114_civil_societ
y_call_equator_principles.pdf).
3. Analysis and Issues: The Creation and Operation of a Regulatory Instrument through a
Public-Private Partnership
The first issue is the conception of the EP. The principles were created by some
of the world’s biggest financial institutions and the IFC. It is an interesting casestudy of a public-private partnership. From the perspective of the banks, there
were several reasons behind the agreement reached at the Greenwich meeting. In
large part, they were acting in accordance with the general trend of corporate
social responsibility, in reaction to increasing reputational risks and growing
potential liabilities associated with environmentally and socially irresponsible
projects. Some EPFIs saw the EP as an improved risk-management method and
as a way to protect their strong interests in the successful completion of projects.
A project that leads to environmental degradation or negative social outcomes
exposes the lender to possible liability, and jeopardizes the successful fulfillment
of the project. Even if the project is completed, it might only occur after
domestic courts or the government impose sanctions on the FIs, or require them
to initiate a remedial plan. Through the EP, EPFIs have improved their ability to
ensure that a project is a secure investment and, as a result, likely to raise
revenues in the foreseeable future. Another reason for the banks’ willingness to
join the EP was their desire to distinguish themselves from non-EPFIs.
Presumably, the EP label enables them to brand themselves as socially and
environmentally responsible. Lastly, as the EP are largely considered an industry
code, they remove bargaining power from borrowers. Now that banks are
required to act in adherence to the EP, borrowers may no longer use their
bargaining power to make banks waive or lower environmental impact
assessment or other requirements. The EP allowed banks to solve a collective
action problem: as noted above, they all had an interest in higher standards, but
they had a coordination problem. It was very difficult to create a standard,
negotiate its terms, and receive approval from all FIs. By adopting the EP with
the sponsorship of the IFC, the banks overcame this problem. Research,
142
negotiation, and coordination had already been carried out – to a large extent –
by the IFC. In order to fully understand the banks’ inclination to accept the EP,
one should bear in mind that EPFIs act as a de facto oligopoly. Some experts even
go further and indicate that the EPFIs should be seen as a tacit, de facto, cartel.
They consist of a small number of actors that together control 80% of all FDI.
The sustainability of the oligopoly is supported by the EPFIs’ ability to predict
and monitor each other’s behavior. Through the EP, they conduct peer-review
and peer-enforcement. For every major project several EPFIs will act as lenders.
In these cases, the information is shared among the EPFIs. Review and
enforcement are done per individual project, rather than as part of an overall
scheme. In an oligopoly such as the EPFIs, costs are largely shifted to the
consumers. Considering that all banks carry comparable costs, no individual
participant gains a competitive advantage over the others, and by way of tacit
collision, costs are externalized to the end-consumer. By adopting the EP, the
EPFIs created a globally-equal regulatory framework. Presumably, the EP have
the greatest impact in less-developed countries, where they are likely to supersede
domestic regulation if such exists. This means an equally flat playing field for all
EPFIs with regard to FDI in those countries. The new playing field means
smaller adjustment costs and mroe predictability, stability and security for the
banks. Moreover, the EP pose a significant entry barrier for those FIs that are
unable to comply with them due to their size or available equity. Smaller banks,
unable to comply with the EP, have been removed from the competition.
Similarly, the EP have also created an exit barrier for signatories: when an EPFI
withdraws from the scheme, other EPFIs or NGOs may publicly shame the
withdrawing EPFI, seeking public accountability. Considering that the EP are
often seen as an industry standard, the withdrawal may be used to induce legal
accountability as well.
The IFC played a significant role in the orchestration and facilitation of the
EP. Its involvement with the EP was mostly incentivized by its desire to position
itself as an industry leader and to increase its legitimacy and credibility. Another
reason for the IFC’s involvement is that in some situations it operates in
competition with the big banks. This provided further incentive for the IFC to
assist with the creation of the EP. By making sure that the banks will operate
according to the same standards, the IFC leveled the playing field. The fact that
all of its potential competitors were now subject to the same policies meant it
would not suffer a competitive disadvantage by adhering to stricter policies or
operating under less permissive guidelines.
The founders of the EP sought the IFC’s involvement because of its vast
experience with risk management in project finance. They viewed it as a source
of knowledge and as an epistemic community, and were in the main accepting of
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its suggestions. It is not surprising then that the IFC Policies and Guidelines were
incorporated to a large extent into the EP. Presumably, since most EPFIs come
from developed countries, the OECD and other adopted policies were consistent
with the EPFIs’ interests. Further, by choosing existing policies, the EPFIs
avoided the costs of researching, drafting, negotiating and selecting appropriate
measures. Negotiations between the banks were made easier as there was already
a suggested draft on the table, which they were all familiar with and which was
created by an expert body. Hence, transaction costs were significantly reduced
and no individual bank was in a stronger bargaining position or held a
competitive advantage over the others. Moreover, by adopting standards that
were similar to the IFC’s, the banks made it easier for the borrowers. In almost
every significant project there was more than one EPFI lending the money, along
with the IFC. Now that all FIs, including the IFC, were operating under the same
standards, borrowers had to adhere to only one set of rules and perform only one
EIA.
From the client-borrower’s perspective, the EP bring several benefits. In a
large-scale project, a borrower is likely to receive loans from more than one
EPFI. By maintaining the same standards and requirements, EPFIs
accommodate the borrower. Instead of a series of EIAs each tailored to a specific
lender, the borrower is now required to perform only one EIA. Moreover, clients
are led to think that non-EP banks must be acting recklessly, thus exposing
themselves (and the borrower) to possible liability, negative publicity, reputational
damage, and ultimately, the termination of the project. Accordingly, an EPapproved EIA becomes more attractive.
The second issue is the content of the EP; or, more specifically, the
question of why the drafters chose to develop the EP as a set of procedural rules,
rather than substantive standards. The EP are well-defined, ex ante, procedural
guidelines. As such, they offer predictability, stability, and security to those who
adopt them. Their application and implementation is presumably easier as there is
less ambiguity regarding their content. Their meaning is clear and interpretation is
easily comprehended. Accordingly, they offer improved risk-management tools
to the EPFIs. Moreover, the procedural rules contained in the EP allow for
better monitoring between competing EPFIs as breaches are more likely to be
detected. When rules are well-defined and well-structured, their meaning
becomes clear. Any deviation from them may be (relatively) easily observed by
peer-EPFIs. Conversely, ambiguous standards are harder to monitor. It is often
difficult to define their content, and accordingly, to claim that a breach has
occurred. Likewise, there is less room for subjective interpretation by the
different EPFIs. If the EP had been drafted as substantive standards,
implementation would have been more subjective, and would have allowed more
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independence for each participant. Transaction costs would have been higher as
each FI would have needed to do its own research and create individual
implementation strategies. Accordingly, competition would have become harder
and some EPFIs might have lost their competitive advantage. Being accurately
defined, rules are assumed to be equally applicable to all participants and to have
an largely similar effect on them.
Another effect of the EP’s procedural nature is the limited exposure to
legal and public liability. Broad categories, such as human rights or anti-bribery
norms, might be too detrimental to EPFIs’ business operations. The adoption of
such standards would have created a wider basis for litigation. NGOs would have
been able to use them as basis for public “name and shame” campaigns.
Procedural rules are well-suited to meet the goals drafters of the EP had in mind.
Adopting a set of substantive norms would not have achieved the desired
outcome and would have resulted in broader liabilities, stronger competition, and
increased costs. It would have made peer-review and peer-enforcement much
harder, if not impossible. Also, it would not have been as useful in terms of riskmanagement. Not only do substantive standards fail to offer the predictability
and accuracy of procedural rules, they may in fact increase risks rather than
minimize them.
The third issue is the scope and potential influence of the EP. Given their
voluntary nature, no sanctions can be imposed on participants for breaching the
agreed framework. Nevertheless, the EPFIs are peer-reviewed and peer-enforced.
Big infrastructure projects are usually financed by a syndicate of banks. These
banks are either already involved in the project or desire to be. At least some of
them will be signatories to the EP. In such a project, the borrower will perform
one EIA and produce one set of reports. These reports will be distributed to all
lenders (and potential lenders) equally. The lenders will then base their decisions
on them. Assuming all EPFIs potentially involved in the transaction act in
accordance with the EP, it is an “all or nothing” situation. They either all lend the
money to the borrower or no one does (assuming of course that at this point,
they are all interested in providing the loan and there are no unresolved issues
related to credit, liquidity, and so on). If, for instance, all except one refuse to
lend, then the one maverick-EPFI that has agreed to give the money is presumed
to be operating in breach of the EP. Its alleged departure from the EP might
expose it to public shame campaigns and perhaps even legal liability. Moreover,
lenders in such projects will be able to collect information about each other,
either directly or indirectly. Their engagement with each other will allow them to
monitor the other’s conduct and its overall operation. Thus, a substantial breach
of the EP is unlikely to go unattended. Since costs are for the most part shifted
to the end-consumer, EPFIs have no strong incentives to breach the EP.
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Furthermore, in some large-scale projects, the lenders act as a group, with each
one playing a different role. One of the banks may be an “environmental bank,”
in charge of performing an EIA. The borrower will perform one EIA, which will
be delivered only to the environmental bank for review. This mechanism,
operating under a presumption of policy-harmony between the EPFIs, reduces
transaction costs for the potential lenders. Only one bank is required to review
and assess the environmental and social risks involved with the project. The
environmental bank may execute discretion, but its decision is contractually
binding upon all the other banks. Since all EPFIs follow the same standards, the
environmental bank’s decision will be acceptable to the other lenders. Once the
environmental bank has made a decision, all other lenders are likely to follow it.
Under such contractual arrangements, non-EP lenders will be compelled to
follow the EP as well. Notably, these peer-review and peer-enforcement
mechanisms are deficient in two respects. First, these monitoring and
enforcement mechanisms are only applicable with regard to certain projects, and
any remedies potentially executable by one EPFI over another, are limited to a
given project. However, as the EPFIs are a small oligopoly, there are numerous
instances of reiteration, in which relationships in one project are repeated in
another. Therefore, enforcement and review may be more effective if considered
as a set of iterations rather than isolated incidents. Second, as said, these
enforcement and review mechanisms are entirely peer-based. Almost no material
information is disclosed to the public.
The fourth issue is the IFC’s overarching influence vis-à-vis the EP. By
incorporating IFC policies, the EP have greatly expanded the influence of the
IFC. The scope of the IFC Directors’ decisions – regarding Performance
Standards and other guidelines – is now much greater as it effects not only IFC
operations but also all EPFIs. In this regard, the IFC’s normative framework has
reached far beyond its own institutions, indirectly affecting the vast majority of
global FDI. In a large scale project, it is unlikely that a borrower would be able to
raise money without the involvement of at least one EPFI. As a result, in almost
any big infrastructure project conducted worldwide, the EP are considered the
governing protocol. Furthermore, the IFC’s role in the drafting of the EP raises
questions regarding its accountability and legitimacy. It seems that the scope of
its actions go beyond the powers provided to it by the World Bank (and Member
States). Another possible criticism of the IFC is that, in some environmental
disputes, it plays a quasi-judicial role. When it finds that a project complies with
its Safeguards, other EPFIs may find that ruling satisfactory for their purposes as
well. Often, then, they will follow the IFC ruling and act accordingly. As the IFC
review process is mostly procedural, some have questioned its legitimacy and its
ability to prevent environmental and social harm. In the Baku-Tbilisi-Ceyhan
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pipeline project, for instance, which was the first Category A project to apply for
EPFI financing, NGOs made records of numerous violations of IFC Guidelines.
The IFC, however, did not accept their analysis. EPFIs involved in the project
did not withdraw from it, although they did agree to introduce some changes.
In the Paper Pulp Mill case (see § III.B.2 “Sustainable Development,
Environmental Impact Assessments and the Obligation to Consult: Pulp Mills on
the River Uruguay” by E. Fromageau), an Argentinean NGO (the Center for
Human Rights and Environment, hereinafter: “CEDHA”) took advantage of the
EP in its campaign to stop the financing of the paper pulp mill in neighboring
Uruguay. CEDHA argued that the provision funds to the project was in direct
violation of the EP and should therefore be halted immediately. CEDHA was
thus able to use the EP to publicly shame the EPFIs involved and expose them
to increased public pressure and liability. Additionally, since the EP incorporate
IFC Safeguards, CEDHA was able to bring a claim before the IFC’s independent
recourse mechanism, the Compliance Advisory Ombudsman (“CAO”). In
response to CEDHA’s complaints, the CAO reviewed the project’s compliance
with the Safeguards and issued a report that highlighted several procedural
deficiencies, all of which were easily remedied by the FIs. When the project had
been approved by the CAO and the IFC, Calyon – an EPFI who was involved in
the project – used the CAO’s involvement as a counterargument against all
criticisms by NGOs of its involvement with the paper pulp mill.
This outcome suggests that while the EP offer NGOs access to disputesettlement bodies, the holdings of those bodies may be limited, narrow in scope,
and inadequate to address the NGOs’ environmental concerns. This is partially
due to the procedural nature of the EP: as long as procedures are followed
correctly, little oversight is exercised in relation to the EPFIs’ actions and their
consequences. The Paper Pulp Mill case further shows that individuals and
NGOs may not rely solely on the EP to impose liability on EPFIs or affect their
behavior. The voluntary nature of the Principles and the absence of observable
enforcement or review mechanisms have proved to be insufficient in terms of
preventing or mitigating environmental and social harm. In the Paper Pulp Mill
case, once the IFC found that the project conformed with its Policies, Calyon
could take this as an assurance that its involvement was consistent with “good
practice” and thus immune from other forms of liability.
Conversely, changes made by several EPFIs to their policies have been
often attributed to their adherence to the EP. Perhaps this proves that banks do
take the EP seriously, and that the Principles do have some effect. Moreover,
EPFIs are currently in the process of revising the EP, in response to various
claims from civil society. In a recent “Strategic Review Meeting”, they set out
their vision for the EP. The meeting involved 13 participants, including EPFIs’
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representatives, key stakeholders, civil society leaders, and the IFC. During the
drafting meetings, EP members promised to incorporate a notice-and-comment
mechanism, limited participation, and a limited form of reason giving.
The harmonization process of project finance has not escaped all criticism.
It has been suggested that harmonization is actually synonymous with loss of
creativity and dogmatic thinking. The EP create certain requirements, but it is
quite possible that other methods of operation will be more efficient. Also, some
core matters have been omitted from the EP, most notably human rights.
Further criticism suggests that in order to avoid the strict application of the EP,
EPFIs are invited to participate in a project after its inception and once it has
already reached a critical point. At that stage, an EIA cannot be done without
causing significant delay to the project or shutting it down entirely. Other critics
suggest that there is an inherent conflict of interest in the operation of the banks.
The EPFIs have a strong interest in the successful completion of the project
within a given timeframe. More often than not, they will be reimbursed only after
the project is up and running. Therefore, it is in their interest to ignore additional
due diligence requirements or acts of non-compliance by borrowers and project
companies. Furthermore, various NGOs have advocated for greater
transparency, access to information, participation, and public disclosure. These
NGOs have also argued that the EP must include accountability mechanisms,
such as a complaint mechanism, dispute settlement procedures, review boards,
delisting options, and increased public scrutiny. Ultimately, the absence of
accountability and disclosure mechanisms in the EPFIs’ operations makes it
impossible to truly evaluate the impact of the EP. The scope of their
implementation by the banks and their application to FDI is uncertain. A
comprehensive evaluation is practically impossible due to both the lack of
transparency and the failure to disclose information regarding EPFIs’
implementation methods.
As more banks join the EP, the Principles may become a global standard
for project finance. From a GAL perspective, this process seems deficient.
Relevant stakeholders were not involved in the drafting of the EP and the
process lacked transparency. No notice-and-comment mechanisms were offered
during the drafting of the EP. Thus, meaningful inputs from potential
stakeholders were denied. Arguably, the drafters of the EP lack the accountability
and the legitimacy to promulgate such an extensively influential industry-code.
Furthermore, banks’ operation under the EP is for the most part, nontransparent. Very little information is released to the public. The extent to which
EPFIs follow the EP and their implementation efforts is unknown. There is no
independent complaint mechanism that deals with alleged violations of the EP,
no possibility of external review, and no outside monitoring.
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4. Further Reading
a.
b.
c.
d.
e.
N. AFFOLDER, “Cachet Not Cash: Another Sort of World Bank Group
Borrowing”, 14 Mich.St.J.Int’l.L. 141 (2006);
A. HARDENBROOK, “The Equator Principles: The Private Financial
Sector’s Attempt at Environmental Responsibility”, 40 Vand.J.Transnat’l.L
197 (2007);
D.B. HUNTER, “Civil Society Networks and the Development of
Environmental Standards at International Financial Institutions”, 8
Chi.J.Int’l L. 437 (2008);
V. LEE, “Enforcing the Equator Principles: An NGO’s Principled Effort to
Stop the Financing of a Paper Pulp Mill in Uruguay”, 6
Nw.U.J.Int’l.Hum.Rts. 354 (2008);
L. SCHREVE, “The Equator Principles: A Voluntary Approach by Bankers”,
in K. BASTMEIJER, T. KOIVUROVA (eds.), Theory and Practice of Transboundary
Environmental Impact Assessment (2008) p. 327 et seq.
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VII.B.4 Does Civil Society Promote Democracy? The Arab Spring and the
EU’s “New Response to a Changing Neighbourhood”
Valentina Volpe
1. Background
At the end of December 2010, a wave of protests and mass demonstrations
demanding better economic conditions and democratic reforms began to spread
across the Arab world. From Tunisia, popular protests spread throughout Egypt,
Libya, Syria, Yemen, Algeria and Morocco, affecting, by mid-March 2011,
virtually all Middle East and North African countries.
In the same month, the European Commission and the High
Representative of the Union for Foreign Affairs and Security Policy issued the
joint communication “A Partnership for Democracy and Shared Prosperity with
the Southern Mediterranean”, providing the EU’s first political response to the
democratic uprising known as the “Arab Spring”.
It was, however, on May 25th, 2011, with the adoption of the new strategy
paper “A New Response to a Changing Neighbourhood”, that the EU fully
developed and revised the priorities and operational guidelines of its European
Neighbourhood Policy (ENP).
The ENP was created in 2004 with the purpose of preventing potential
cleavages between the newly-enlarged Europe and its neighbours, promoting at
the same time “stability, security and well-being for all”. The ENP is in fact
addressed to those countries of Eastern Europe, the South Caucasus and the
south shore of the Mediterranean who share at least one border with the EU and
who want to improve their level of co-operation with the latter in both the
political and economic areas. Nevertheless, the European Neighbourhood Policy
remains clearly distinct from the enlargement process, and does not offer the
possibility of accession to participant countries.
The sixteen countries that have been offered partnership status under the
ENP framework (Algeria, Armenia, Azerbaijan, Belarus, Egypt, Georgia, Israel,
Jordan, Lebanon, Libya, the Republic of Moldova, Morocco, the Occupied
Palestinian Territories, Syria, Tunisia and Ukraine) have the opportunity to work
on a joint Action Plan, and can look forward to enjoying substantial benefits in
the form of technical assistance, political support, and financial aid, in accordance
with the provisions introduced by the Lisbon Treaty: “[t]he Union shall develop a
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special relationship with neighbouring countries, aiming to establish an area of
prosperity and good neighbourliness, founded on the values of the Union and
characterised by close and peaceful relations based on cooperation” (Art. 8.1
TEU); and, in order to achieve these ends, “the Union may conclude specific
agreements with the countries concerned” (Art. 8.2 TEU).
The origins of the ENP can be traced back to the European Security
Strategy approved in 2003. This document, warning of the risk of creating “new
dividing lines” in Europe as a result of the modification of the EU’s external
borders in 2004, sets a pro-democratic political agenda for the Union: “[o]ur task
is to promote a ring of well governed countries to the East of the European
Union and on the borders of the Mediterranean with whom we can enjoy close
and cooperative relations”. “Spreading good governance, supporting social and
political reform, dealing with corruption and abuse of power, establishing the rule
of law and protecting human rights are the best means of strengthening the
international order”. And “[t]he best protection for our security is a world of
well-governed democratic states”.
2. Materials
-
-
-
European Commission - High Representative of the European Union for
Foreign Affairs and Security Policy, Joint Communication to the European
Parliament, the Council, the European Economic and Social Committee
and the Committee of the Regions, A New Response to a Changing
Neighbourhood, COM(2011) 303, Brussels, 25.05.2011
(http://ec.europa.eu/world/enp/pdf/com_11_303_en.pdf);
European Commission, European Neighbourhood Policy, website
(http://ec.europa.eu/world/enp/welcome_en.htm);
European Commission – High Representative of the Union for Foreign
Affairs and Security Policy, Joint Communication to the European Council,
the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions, A Partnership for Democracy
and Shared Prosperity with the Southern Mediterranean, COM(2011) 200 final,
Brussels, 08.03.2011
(http://eeas.europa.eu/euromed/docs/com2011_200_en.pdf);
Commission, European Neighbourhood Policy: Strategy Paper, COM(2004)373
final, Brussels, 12.05.2004
(http://ec.europa.eu/world/enp/pdf/strategy/strategy_paper_en.pdf);
-
-
151
Commission to the Council and the European Parliament, Wider Europe —
Neighbourhood: A New Framework for Relations with our Eastern and Southern
Neighbours, COM(2003) 104 final, Brussels, 11.03.2003
(http://ec.europa.eu/world/enp/pdf/com03_104_en.pdf.);
European Council, European Security Strategy: A Secure Europe in a Better World,
Brussels, 12 December 2003
(http://www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf);
European Instrument for Democracy and Human Rights (EIDHR), Strategy
Paper 2007 – 2010
(http://ec.europa.eu/europeaid/what/humanrights/documents/eidhr_strategy_paper_2007-2010_en.pdf).
3. Analysis
The Strategy Paper seeks to define a new comprehensive approach for the EU in
its relations with neighbouring countries. As with the earlier document in 2004,
the paper was released at a critical historical moment, and addresses some of the
most important challenges, resulting from the emerging geopolitical dynamics,
that the European Union has been called upon to face.
Although not exclusively addressed to the neighbouring countries affected
by the revolutionary changes of the “Arab Spring”, the events unfolding
throughout the Southern Mediterranean have been one of the main factors
driving the review of the European Neighbourhood Policy. The document
openly admits that “[r]ecent events […] have shown that EU support to political
reforms in neighbouring countries has met with limited results”; for this reason, a
“new approach is needed to strengthen the partnership between the EU and the
countries and societies of the neighbourhood: to build and consolidate healthy
democracies, pursue sustainable economic growth and manage cross-border
links”.
The “new approach” supports inclusive and sustainable economic and
social development, strengthens the Eastern Partnership and the Southern
Mediterranean regional initiatives (in areas such as trade, energy, transport or
migration and mobility) and provides mechanisms and instruments to fulfil these
objectives.
However, one of the most interesting aspects of the Strategy Paper is its
strong political dimension: “[t]he new approach must be based on mutual
accountability and a shared commitment to the universal values of human rights,
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democracy and the rule of law”. The document recommends EU support that is
tailored to the unique situation of each neighbouring country but conditional
upon certain requirements being met, envisaging also the possibility of negative
measures in this regard. For example, “[f]or countries where reform has not
taken place, the EU will reconsider or even reduce funding”. In particular, the
EU will apply negative conditionality to those governments “engaged in
violations of human rights and democracy standards”.
In like manner, increased EU support will depend on the engagement of
the neighbouring countries in “building and consolidating democracy and respect
for the rule of law”, and on the pace of their progresses.
In particular, the EU aims to provide “greater support to partners engaged
in building deep democracy” (emphasis added), which is defined as “the kind that
lasts because the right to vote is accompanied by rights to exercise free speech,
form competing political parties, receive impartial justice from independent
judges, security from accountable police and army forces, access to a competent
and non-corrupt civil service”. The EU will evaluate the progress of each
neighbouring country against these benchmarks, adjusting the levels of its
support accordingly.
In constructing this inclusive idea of democracy, great emphasis is placed
on the promotion of civil society as an effective instrument for democratic
reform in the neighbouring countries.
The second section of the chapter “To support progress towards deep
democracy” is aptly entitled “A partnership with societies”, and sets out a fourpoint agenda for improving the level of EU collaboration with civil society
organizations in neighbouring countries.
The EU’s first objective in this area is to: “establish partnerships in each
neighbouring country and make EU support more accessible to civil society
organisations through a dedicated Civil Society Facility”. This Civil Society
Facility could contribute to the creation of a “structured dialogue”, supported by
in-country EU delegations, between civil society organizations and governments
of partner countries, on the most important aspects of co-operation with the EU.
Furthermore, the EU will openly support civil society organizations in developing
their advocacy capacity, their ability to monitor reform and their role in
implementing EU programs. Presumably, the European Union will be able to
select those organizations which it believes will better comply with its political
priorities and interests (women’s and minority rights, environmental protection,
and “resource efficiency” are mentioned in the paper as key areas), exerting in the
process potentially significant influence on its neighbouring countries.
Under the second objective, the EU shall support the creation of a
“European Endowment for Democracy” in order to help political parties,
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NGOs, trade unions and other relevant social partners to promote democratic
reforms. The explicitly-recognized possibility of supporting political parties, and
consequently, parties opposing the government in power in third states, is quite
remarkable. It seems that this provision can be read in conjunction with the
EIDHR (European Instrument for Democracy and Human Rights; see § VII.A.3
“The UN Fund on Democracy and the European Instrument for Democracy and
Human Rights: Causality or Convergence?” by B. Carotti), and, in particular, the
section referring to its capacity to intervene in third countries by financing civil
society organizations “without the need for government consent”.
The third objective mentioned in the paper invites the EU to promote
information and media freedom by supporting unrestricted access to the internet
and the use of other electronic communications technologies for civil society
organizations. This provision reflects the role played by the internet and its
correlated social networks as tools for political and social change during the
uprisings of the Arab Spring; in addition, the provision introduces the possibility
of developing further instruments (alongside the EIDHR) to assist civil society
organizations in this specific field.
The final element of the new European strategy for constructing a
“partnership with societies” in neighbouring countries relates to protections of
human rights and fundamental freedoms. Similar to the requirements established
by the EU for its candidate countries, the Strategy Paper includes ratification of
international and regional instruments, and full compliance with their provisions,
among the important elements of the partnership framework. With the intent of
reinforcing human rights dialogues, the paper recommends enhanced
cooperation between the neighbouring countries and the Council of Europe as
an additional means of promoting compliance with international standards. The
document notes, moreover, the role played by women in the recent events in
Southern Mediterranean countries stressing in particular the importance of
respect for women’s rights and a commitment towards increasing gender equality.
The need to sustain democratic progress in the countries neighbouring the
EU, by means of the wide array of political and economic instruments (including
the enhanced “partnership with societies”) available under the ENP, is explained
in the conclusions of the Strategy Paper. “What we are aiming for together is a
democratic, prosperous and stable region where more than 800 million people
can live, work and shape their own country’s future, confident that their freedom,
their dignity and their rights will be respected.” “It is in the EU’s own interest to
support these transformation processes, […] [and] to anchor the essential values
and principles of human rights, democracy and the rule of law, a market
economy and inclusive, sustainable development in [neighbouring countries’]
political and economic fabric”.
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4. Issues: The Problematic “Mantra” of Civil Society Promoting Democracy
The European Union – like numerous other regional and global institutions
active in the field of democracy promotion – seems increasingly to rely on the
notion of “civil society” as the key factor for successful democratization
processes. Today, virtually all major international actors are involved in programs
of civil society assistance, with the ultimate aim of promoting democracy.
However, this reliance on civil society seems to raise a number of different
problems from both theoretical and practical points of view.
The first concerns the nebulous character of the definition of “civil
society”, and the resultant problems in operationalizing this definition; the
second relates to the difficulties involved in linking civil society promotion to
effective democratic transition (or consolidation), and the resulting issue of how
to measure the real impact of the former on the latter.
At the core of the first problem lies the precise meaning of “civil society”.
In general terms, it is possible to say that this is the space made up of
associations and groups, between the individual, the basic family grouping, and
the State. The strictly economic and political spheres are excluded from the
notion of civil society. Beyond this broad definition, the concept of civil society
remains highly disputed in the literature, and its “border categories” remain
uncertain (are, for example, trade unions part of the civil society or of “political
society”?).
Given the lack of consensus on the meaning of the term, it is the donors
who ultimately define civil society (and consequently the entitled recipients) in
the framework of their own democracy promotion activities; and, as a result,
many different normative definitions of civil society, generally functional to
donors’ interests, exist in the various international frameworks (the EU, the WB,
the CoE, etc.).
Thus far, in the donors’ eyes, “civil society”, has been largely synonymous
with advocacy non-governmental organizations (NGOs). It was the practical
need for structured organizations to finance and the political interest in funding
actors that shared donors’ values and interests that made NGOs (and especially
transnational advocacy NGOs), the donors’ preferred beneficiaries.
NGOs are considered capable of fostering a kind of bottom-up process of
democratization, and of effectively promoting the value of “social capital” in
transitional and weak democracies. Social capital, as conceived by Robert
Putnam, refers to “features of social organization, such as trust, norms and
networks, that can improve the efficiency of society by facilitating coordinated
actions”. Concrete examples are “[n]etworks of civic engagement, like the
neighbourhood associations, choral societies, cooperatives, sports clubs […]”
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(Putnam, 1993). It is worth noting, however, that these kinds of Tocquevillian
civil society organizations will rarely be the recipients of international funding, in
the same way that “a women’s group that opposes abortion, a citizens group
working to have the death penalty instituted, or a business association seeking
relaxed environmental laws” (Carothers, 1999) will not readily receive support
from the international community.
An additional example of the selective attitude taken by donors in funding
“civil society”, relevant for the Southern Mediterranean countries, is the
widespread exclusion of religious groups of Islamic inspiration from civil society
support programs, despite the fact that traditionally, religious groups have been
widely recognized as a component of civil society.
The question of the impact that civil society actually has on promoting
political democratization is the other critical issue. How is it possible to measure
the effectiveness of democracy promotion through strengthening civil society? A
general observation is that civil society, in addition to promoting democracy,
actually presupposes democracy – or, at least, the enjoyment of some basic
fundamental freedoms (e.g. of expression, conscience and assembly). Thus civil
society promotion might, at the same time, strengthen and consolidate
democratic standards in transitional democracies, yet have the opposite effect in
full dictatorships.
Furthermore, the efficacy of such programs can only be assessed over a
long period of time, during which many other variables intervene as possible
explanations of democratic progress.
Stressing the role of civil society in transitional states raises yet another
problematic issue. Civil society organizations are private groups and therefore, by
definition, democratically unaccountable. The role that they are called upon to
play is to act as watchdogs of the public authorities in their countries, which are
often, at least to a certain extent, democratically elected. This tension could lead,
especially in transitional democracies, to entrenched public distrust towards
political institutions, while a democratic state needs a certain level of public
confidence in its political system if it is to survive.
These considerations counsel a more cautious approach towards support
for “civil society” in international democracy promotion activities than the
current enthusiasm displays.
During the Arab Spring, as many commentators recognized, external
factors played a very limited role. Equally, the ENP, “whose [past] actions were
largely supporting the status quo” (Emerson, 2011), was of no particular merit in
this process. However, with the outcome of this democratic “revolution” still
uncertain, civil society has been reaffirmed, albeit to a lesser degree than in other
transitional processes, as a fundamental element of democratic political change.
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The various societal networks existing in the Southern Mediterranean countries,
(e.g. trade unions, students’ organizations and women’s groups) played an
important role in the democratic demands for reform. Ironically, among the
more active and grassroot components of Arab societies demanding political
change there were Islamic groups and organizations; sectors of civil society that
would hardly have been candidates for recognition and support from
international donors in recent years.
If there is a lesson to be learned from past democratic transitions, it is that
civil society, understood in the inclusive, Tocquevillian sense, remains a
fundamental element of any viable democracy. Further reflection seems to be
necessary for this awareness to be translated effectively into practice by
international donors.
5. Further Reading
a.
b.
c.
d.
e.
f.
g.
h.
i.
E. BARBÉ, E. JOHANSSON-NOGUÉS, “The EU as a modest ‘force for good’:
the European Neighbourhood Policy”, 84 International Affairs 81 (2008);
F. BINDI (ed.), The Foreign Policy of the European Union: Assessing Europe’s Role
in the World, Washington D.C. (2010);
T. CAROTHERS, Aiding Democracy Abroad: The Learning Curve, Washington
D.C. (1999);
J.L. COHEN, A. ARATO, Civil Society and Political Theory (1992), Cambridge,
Massachusetts, and London, England (1994);
M. CREMONA, “The European Neighbourhood Policy: More than a
Partnership?”, in M. CREMONA (ed.), Developments in EU External Relations
Law, Oxford (2008) p. 245 et seq.;
K. EL-DIN HASEEB, “On the Arab ‘Democratic Spring’: lessons derived”, 4
Contemporary Arab Affairs 113 (2011);
M. EMERSON, Review of the Review – of the European Neighbourhood Policy,
Centre for European Policy Studies, CEPS Commentary, 8 June 2011
(www.ceps.eu/ceps/download/5723);
EUROPEAN COMMISSION – HIGH REPRESENTATIVE OF THE EUROPEAN
UNION FOR FOREIGN AFFAIRS AND SECURITY POLICY, Joint
Communication to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions,
Delivering on a new European Neighbourhood Policy, COM(2012) 14 final,
Brussels, 15.05.2012
(http://ec.europa.eu/world/enp/docs/2012_enp_pack/delivering_new_en
p_en.pdf);
A. HAWTHORNE, “Is Civil Society the Answer?” in T. CAROTHERS, M.
OTTAWAY (eds.), Uncharted Journey: Promoting Democracy in the Middle East,
j.
k.
l.
m.
n.
o.
p.
q.
r.
s.
t.
157
Carnegie Endowment for International Peace, Washington, D.C. (2005), p.
81 et seq.;
M. MASCIA, La società civile nell’Unione Europea: Nuovo orizzonte democratico,
Venezia (2004);
L. O’DOWD, B. DIMITROVOVA, “Promoting Civil Society Across the
Borders of the EU Neighbourhood: Debates, Constraints and
Opportunities”, 16 Geopolitics 176 (2011);
M. OTTAWAY, T. CAROTHERS, “Toward Civil Society Realism”, in M.
OTTAWAY, T. CAROTHERS (eds.), Funding Virtue: Civil Society Aid and
Democracy Promotion, Washington D.C. (2000), p. 293 et seq.;
R.D. PUTNAM, Making Democracy Work: Civic Traditions in Modern Italy,
Princeton (1993);
K. RAIK, Promoting Democracy through Civil Society: How to Step up the EU’s Policy
towards the Eastern Neighbourhood, Centre for European Policy Studies, CEPS
Working Document, No. 237, February 2006
(http://www.ceps.eu/book/promoting-democracy-through-civil-societyhow-step-eus-policy-towards-eastern-neighbourhood);
M. SAKBANI, “The revolutions of the Arab Spring: are democracy,
development and modernity at the gates?”, 4 Contemporary Arab Affairs 127
(2011);
M. SCHULZ, “The role of civil society in regional governance in the Middle
East”, in D. ARMSTRONG, V. BELLO, J. GILSON, D. SPINI (eds.), Civil Society
and International Governance: The role of non-state actors in global and regional
regulatory frameworks, London, New York (2011), p. 166 et seq.;
N. TOCCI, J.P. CASSARINO, Rethinking the EU’s Mediterranean Policies Post –
1/11, IAI Working Papers 11/06, March 2011
(http://www.iai.it/pdf/DocIAI/iaiwp1106.pdf);
VENICE COMMISSION, Opinion on the prohibition of financial contributions to
political parties from foreign sources, Opinion No. 366/2006, CDLAD(2006)014, Strasbourg, 31 March 2006
(http://www.venice.coe.int/docs/2006/CDL-AD(2006)014e.asp?PrintVersion=True);
M. WALZER, “The Civil Society Argument”, in R. BEINER (ed.), Theorizing
Citizenship, Albany (1995), p. 153 et seq.;
R. YOUNGS, “Europe’s Uncertain Pursuit of Middle East Reform”, in T.
CAROTHERS, M. OTTAWAY (eds.), Uncharted Journey: Promoting Democracy in the
Middle East, Washington D.C. (2005), p. 229 et seq. 158
VII.C. Media
VII.C.1 WikiLeaks, Global Security and Democratic Control
Edoardo Chiti
1. Background
On 5 April 2010, WikiLeaks released classified US military documents from a
series of attacks, on 12 July 2007 in Baghdad, by a US helicopter that killed 12-18
people, including two Reuters staff. A 22-year-old US Army intelligence analyst,
Bradley Manning, was arrested for having leaked the Baghdad airstrike video and
260,000 classified US embassy cables, including 11,000 documents marked secret.
Allegedly, Manning had downloaded tens of thousands of diplomatic cables from
November 2009 to April 2010 and passed those records on to WikiLeaks.
On 25 July 2010, WikiLeaks released to several newspapers over 92,000
documents related to the war in Afghanistan between 2004 and 2009. The
publication of these documents was considered by several commentators as
having endangered the lives of Afghan military and civilian informants.
WikiLeaks replied that 15,000 unreleased documents were in the process of being
reviewed line by line in order to remove the names of “innocent parties who are
under reasonable threat”. The Australia Defence Association (ADA) stated that
Julian Assange, founder and spokeperson of the organization, could have
committed a serious criminal offence in helping an enemy of the Australian
Defence Force, and that WikiLeaks was not authorised in international or
Australian law to judge whether open publication of such material risks the
safety, security, morale and legitimate objectives of Australian and allied troops
fighting in a UN-endorsed military operation.
In October 2010, several news organizations received almost 400,000 Iraq
war documents from WikiLeaks. On 28 November, WikiLeaks reported that it
had been the subject of a massive attack on its computer resources, and
announced a new release of cables and documents via certain prominent media
outlets. The US Government forbade all unauthorized federal government
employees and contractors from accessing classified documents publicly available
159
on WikiLeaks. US Secretary of State Hillary Clinton stated that “this disclosure is
not just an attack on America’s foreign policy; it is an attack on the international
community, the alliances and partnerships, the conventions and negotiations that
safeguard global security and advance economic prosperity”. The US Justice
Department opened a criminal investigation into Assange’s activities. In early
December 2010, several companies severed their relations with WikiLeaks: for
example, Amazon.com stopped providing infrastructure services to WikiLeaks,
alleging a violation of its terms of service; the payment processor PayPal cut off
the account of the Foundation that had been redirecting donations to WikiLeaks;
and Visa and Mastercard suspended payments to WikiLeaks. They all denied
acting under the political pressure of the US government.
WikiLeaks reacted against what it called a “financial blockade”. However,
fundraising remained highly problematic and WikiLeaks was substantially
prevented from continuing to act as a publishing venture. The last important
leaks were those of April and May 2011, when WikiLeaks released about 800 US
Department of Defense documents relating to detainees at the Guantanamo Bay
detention camp.
2. Materials
-
-
US Department of State, Remarks by Secretary Clinton (2011, February
15), Internet rights and wrongs: Choices and challenges in a networked
world
(http://www.state.gov/secretary/rm/2011/02/156619.htm);
US Open Government Initiative (2009, January 21)
(http://www.whitehouse.gov/open);
Open Government Partnership
(http://www.opengovpartnership.org);
Extractive Industries Transparency Initiative
(http://eiti.org);
WikiLeaks
(http://www.wikileaks.org).
3. Analysis
WikiLeaks describes itself as “a not-for-profit media organisation” and as “an
uncensorable system for untraceable mass document leaking”. It is a non-national
160
organization having no official headquarters. Its website is available on multiple
servers located in Sweden, Iceland and other disclosure-friendly jurisdictions.
National governments’ response to WikiLeaks disclosures has been only
partly a legal one. In order to limit the damage and, in particular, to deter future
releases, the US has mainly relied on political pressure, ranging from threatening
prosecution to campaigning against WikiLeaks as a menace to global security and
economic prosperity. The main legal step taken by the US Government has been
the opening of a criminal investigation into Assange’s activities. Yet, it is not clear
whether the US can seek to try Julian Assange in its own courts, or on what
charge it might do so: the Department of Justice has considered charges under
the 1917 Espionage Act as well as for trafficking in stolen government property.
Moreover, all unauthorized US federal government employees and contractors
have been forbidden from accessing classified documents on WikiLeaks.
Even the conflict between WikiLeaks and those private companies that
once provided it with infrastructure services has not been brought before courts.
Yet, together with DataCell, an Icelandic company, WikiLeaks has lodged an
antitrust complaint with the European Commission, arguing that Visa and
Mastercard are unlawfully colluding against them.
Beyond the WikiLeaks dispute with the US and other western
governments, several international initiatives are in the process of being
developed that bring new attention to the culture and practice of institutional
openness.
One example is provided by the Open Government Partnership (OGP).
The OGP was launched in September 2011 as an international initiative through
which several States embrace “principles of transparency and open government
with a view toward achieving greater prosperity, well-being, and human dignity in
our own countries and in an increasingly interconnected world”. Any country
that meets some basic standards of openness, such as publishing a draft State
budget, can join. Current members include the US, Brazil, the United Kingdom,
Indonesia, Mexico, Norway, the Philippines and South Africa.
A second example is that of the Extractive Industries Transparency
Initiative (EITI). Launched in October 2002, the EITI encourages oil and gas
companies to publish the details of what they pay to governments, with the aim
of mitigating political instability caused by opaque governance, improving the
economic environment and making governments more accountable vis-à-vis the
citizens and the public at large. These and other international initiatives reflect
the growing interest for regulating, at the supranational level, the openness of
national governments and an increasing desire to develop a common culture of
institutional transparency and accountability.
161
4. Issues: Democratic Control and Executive Secrecy in the Global Legal Space
The underlying issue is the conflict between democratic oversight and executive
secrecy. In democratic polities, openness, transparency and publicity are
fundamental principles for ensuring democratic decision-making and oversight.
However, some policies may be effectively carried out only under conditions of
secrecy. How can such conflict be successfully addressed? What is a reasonable
balance between openness and secrecy? For example, is it appropriate to delegate
to the executive itself the assessment of the harm that disclosure of information
might cause in the conduct of policies such as counter-terrorism or security? Or
are other mechanisms of mediation, such as parliamentary or specialised
oversight bodies, preferable?
In the case of the clash between WikiLeaks and several western national
governments, however, the conflict between democratic oversight and executive
secrecy takes place in a particularly complex context. First, WikiLeaks discloses
secret documents of national governments with the purpose of bringing
important news and information to the public, but it is a non-national
organization, without official headquarters in any State and operating in the
cyberspace through a website available on multiple servers: the quest for
transparency and democratic oversight over national governments comes from
an actor that is external to the national legal systems whose secrecy it is
challenging. Second, WikiLeaks presents itself as a news organization, but it is a
news organization of a novel type, different from traditional news media in terms
of the quantity of information that it is able to release, the peculiar way in which
this information is acquired and accessed, and the way in which information is
presented. Third, the documents released concern crucial issues of global
security, human rights protection and the foreign policy of many western States,
including the US.
Does the clash between WikiLeaks and the relevant national governments
represent a purely national issue, to be resolved through the legal instruments
available in national legal orders, such as prosecution and trial? Or do global
regulatory systems provide further instruments through which the tension
between democratic oversight promoted by non-national news organizations and
the secrecy defended by national executives can be mediated? For example, are
the OGP and the EITI capable of regulating or influencing States’ decisions over
the appropriate balance between openness and secrecy? Do these and other
public global initiatives interact with each other? If so, do they tend to reinforce
each other through linkages and cross-implementation? How do they coexist
with the private initiatives for ensuring increased transparency in public action?
162
And in what ways do they interact with the national schemes for public
government?
On a more general level, what mechanisms should be put in place to
mediate between the conflicting exigencies of democratic control and executive
secrecy in an age in which national policies, such as security and foreign affairs,
are increasingly framed by supranational regulation and defined in close
connection with the protection of human rights? In particular, how should the
underlying rationale for executive secrecy be reconceived in this context? And
how can transparency projects be effectively oriented towards political
accountability? Admittedly, transparency mechanisms must be designed in such a
way as to allow citizens and the public at large to turn their criticisms into real
political pressure. What rules and practices might achieve such a result? In what
ways, for example, could open government projects be linked to the procedural
regulation of political and administrative action? And should such instruments of
mediation be developed at the national level only, or also with regard to global
organizations involved in military operations, such as the UN and NATO?
5. Further Reading
a.
b.
c.
d.
e.
f.
g.
Y. BENKLER, “A Free Irresponsible Press”, 46 Harvard Civil Rights-Civil
Liberties Law Review 311 (2011);
M.A. CHENIN, “Secrecy and Democratic Decision”, 27 Quinnipiac Law
Review 1 (2009);
D.M. CURTIN, Top Secret Europe, Amsterdam (2011);
C. HOOD, “From FOI World to WikiLeaks World: A New Chapter in the
Transparency Story?”, 24 Governance 635 (2011);
R. MACKINNON, “Internet freedom” in the age of Assange, (2011)
(http://www.foreignpolicy.com/articles/2011/02/17/internet_freedom_i
n_the_age_of_assange?page=full).
D. POZEN, “Deep Secrecy”, 62 Stanford Law Review 257 (2010);
R. SAGAR, “On Combating the Abuse of State Secrecy”, 15 The Journal of
Political Philosphy 404 (2007).
163
VII.C.2 The Google China Case
Bruno Carotti
1. Background
In 2002, Chinese users found that they could no longer rely on the best-known
American search engine, Google. Searches often turned up no results,
connections were slow and, as a consequence, users began turning to other
search engines.
The restrictions enforced by Chinese government led the US company to
reconsider its policy. Until that moment, Google had based its server (and, thus,
the functioning of its famous algorithm) in the United States: a solution that
required the observance of American law alone. Now this option seemed no
longer available: information on servers based outwith Chinese territory was no
longer accessible to Internet users within that State.
How did this happen? The flow of information from “external” servers
had been blocked by technical arrangements put in place by the Chinese
authorities in an attempt to block access by residents to uncensored information.
Perhaps most famously in this regard, a search for “Tiananmen Square” outwith
China will turn up images of victims and brutal suppression, while the same term
within Chinese territory leads to pictures of young smiling people and of sunny
tranquillity. Searches for terms such as “Falun Gong”, “Dalai Lama” or “Tibet”
are similarly restricted.
The modern “Chinese wall” is composed of around 30,000 policemen
employed by the government to control the content of the information (blogs,
emails, instant messages, and so on) placed online by Chinese users. As recently
underlined in public advertisement in China, the Internet must be used with
caution. Chinese Internet connections rely on three main fiber-optic pipelines
running through the national territory. The routers at the end of these pipelines
must be configured in order to permit the desired surveillance: these are the new
headquarters of censorship.
The Chinese Government also requires Internet providers to monitor
information transmitted and to block access to listed sites – or at least, those
parts thereof considered subversive. For example, the Government did not
restrict
access
to
the
entire
university.edu
site;
merely
the
university.edu/tiananmensquare.htm page. This highly selective approach differs from
164
the institution of a general firewall, preferring instead a targeted model focusing
on particular material and content.
In this way, the Internet – that worldwide and revolutionary “networks of
networks” that has reinvented the way in which we communicate with each other
– was confronted with governmental authority: the openness of the web was
undermined by the filtering of data deemed subversive. The irony here is that this
form of control was made possible by the sophisticated technology developed
and applied by an American company, Cisco.
After much preparation, Google finally moved onto Chinese territory and,
in 2006, the new google.cn site became active. “Don’t be evil”, the well-known
philosophy of Google co-founders Page and Brin that had guided the company
since its inception, appeared to have been thrown by the wayside, resulting in
vociferous and wide-ranging criticism of the US giant.
In 2010, after years of compliance with the requirements of the Chinese
Government, Google announced its decision to leave, saying that it was “no
longer willing to continue censoring” information; it would no longer act as a
filter in the delivery of content to Chinese users. After a period of inactivity, it
finally abandoned its server in China, seeking instead to move and redirect its
content to a new serve, based in Hong Kong. Here again, it had to submit to
local authorities, as it did not manage to automatically readdress the information
requested by users from Google.cn towards the newly selected server; the
‘authorization’ of local authorities was indeed necessary in order to fulfil the
implementation of the new communication system. Finally, on the basis of a new
ISP authorization by Chinese government, it moved to Hong Kong, where its
new offices are located. Google.cn no longer functions, redirecting instead to
google.com.hk.
2. Materials
-
Google. A New Approach to China, 12 January 2010
(http://googleblog.blogspot.com/2010/01/new-approach-to-china.html);
Google. An Update on China, 28 June 2010
(http://googleblog.blogspot.com/2010/06/update-on-china.html);
Google Transparency Report. China
(http://www.google.com/transparencyreport/governmentrequests/CN/?
p=2010-12);
U.S.-China Economic and Security Review Commission, Report To
Congress, 2009, p. 286 et seq.
(http://www.uscc.gov/annual_report/2009/09_annual_report.php).
165
3. Analysis
Google’s goal of keeping its servers in the US was driven by its desire to be
bound, in the conduct of its activities, by US law alone. In this way, by providing
Chinese users with access to google.com (from the “outside”), it could avoid the
heavy restrictions put in place by the Chinese Government. The latter responded,
in 2002, by closing this “hole” in its own net, blocking the free flow of
information to foreign servers. In doing so, it ensured that any company seeking
to operate in the “Chinese Internet” would be forced to observe its own rules
and regulations. The possibility of evading Chinese sovereignty had been
removed.
A clash between national regulations is at stake here. Normally, a company
located in one jurisdiction cannot operate in the territory of another without the
consent of local authorities and showing respect for local rules. Indeed, such
local rules themselves appear as legal sources of global regulation, as they are
often applied to a “global phenomenon”. Global forms of regulation are often
diffuse, lacking in the effective enforcement (or even legal authority) to overcome
national differences. Globalization therefore exists side by side with local norms.
It should, furthermore, be noted that the redirection from the Chinesebased server to the Hong Kong one was possible only with the agreement of the
Chinese government. This aspect is quite strange for an instrument, such as the
Internet, that is intended to operate globally. This reveals the ongoing importance
of national public authorities in conditioning the forms of globalization.
From an economic perspective, it might be said that States are attempting
to set up and protect their own “markets”, dividing the Internet into different
“parts” that coincide with their political borders. One consequence of this is a
higher level of protection for local operators: success in a particular (national)
market is closely related to respect for and compliance with local norms and
institutions, which may, in turn, provide preferential treatment to their
“favourite” economic actors.
Political borders have become the new limits of the Internet, undermining
its “open” nature and very significant differences in the content of the data that
can be accessed, depending on the territory concerned.
166
4. Issues
The fact that globalization, from a legal point of view, does not necessarily lead
to the development of common rules is clearly demonstrated by the case of
Google in China. Globalization does not offer a unique answer to legal regulatory
issues: multiplicity and nonalignment still prevails.
In other sectors, it is, of course possible to witness the formation of
common principles in the global arena, which then pervade national legal orders.
The general respect of the rule of law and, specifically, for procedural
participation, for instance, can lead to the reversal of national administrative
decisions, thus providing an instrument to check national powers and provide
strong and effective protection to the different actors affected. (see, for example,
the World Bank cases dealt in §§ III.B.6 “The World Bank Inspection Panel: The
Indian Mumbai Urban Transport Project Case” and III.B.7 “The Vlora Thermal
Power Plant in Albania: a Multiplication of Global Standards?” both by M. Circi;
see also III.B.8 “Participation of Indigenous People: The Guatemala Marlin Gold
Mine” by G. Sgueo).
In this case, however, the will of the national government prevailed: entry
on to the Chinese market is subject to the strict observation of national norms.
Here, the process of globalization seems to have been brought to an abrupt
halt. The “global” element of the Internet is, of course, most obviously manifest
in its infrastructure – and, in particular, in the way in which it operates, spreading
information worldwide by means of an specific method for sending data (referred
to as “packet switching”).
The limits of this “global” nature seem, however, equally obvious: a
relevant part of the activities on the Internet are regulated by different national
norms, and controlled by different national authorities. There has been no
successful definition of common ground in this regard: each State sets its own
rules and principles to be obeyed; and no State can be compelled to respect any
“general principles” of Internet regulation (such as commonly-agreed limits on
the content that can be transmitted) by another State or by an international
organization. Internet regulation remains by and large a matter of national
competence; and there is no real suggestion of any convergence in this regard to
date.
In this sense, it is down to private operators to choose which system to
operate within, and therefore which rules and principles to subject themselves to.
But can such choices themselves contribute to the innovation or development of
national (or local) legal systems? In the present case, for example, did Google
manage to contribute to the protection of human rights? Was it able to pursue a
coherent and efficient strategy in this regard? Or did it simply surrender to the
167
requirements of market entry that confronted it own the basis of economic
considerations, acquiescing in the process to the violation of fundamental rights
such as the freedom of expression?
In this context, economic and ethical imperatives seem to collide, raising a
number of questions. Is it possible to pursue ethical business practices in the
context of globalization, when national rules will be applied in any event? And,
more generally, can the Internet really be considered as “transcending” national
borders and eliminating territorial differences?
There are (as yet) no general principles that can overcome this problem.
Even the implementation of basic international human rights law is lacking in
efficacy, and the global regulation of the web seems neither affordable nor
desired. Even in that most global of contexts – the Internet, once considered as
‘borderless’ – the control of States remains hugely important; meaning that even
here, local forces as expressed in national regulation, are protected and sustained.
5. Further Reading
a.
b.
c.
d.
e.
f.
g.
F.B. CROSS, R. LEROY MILLER, The Legal Environment of Business: Text and
Cases: Ethical, Regulatory, Global, and Corporate Issues, Mason, South Western,
2009, p. 179-180;
K.E. MARTIN, Google, Inc., in China, Institute for Corporate Ethics, Case
BRI-1004
(http://www.darden.virginia.edu/corporate-ethics/pdf/BRI-1004.pdf);
J. MATHIASON, Internet Governance. The New Frontier of Global Institutions, New
York, (2009), p. 64 et seq.
Open Net Initiative, Web Filtering, Report on China, 15 June 2009
(http://opennet.net/research/profiles/china-including-hong-kong);
C. WILD, S. WEINSTEIN, N. MACEWAN, N. GEACH, “Electronic and
Mobile Commerce Law: An Analysis of Trade, Finance, Media and
Cybercrime in the Digital Age”, Hatfield, University of Hertfordshire
(2011), p. 343 et seq.;
K. WILSON, Y. RAMOS, D. HARVEY (Under the supervision of Professor W.
Norman – Edited by Professor C. MacDonald), “Google In China: ‘The
Great Firewall’”, The Kenan Institute for Ethics, Duke University, 2007
(http://www.duke.edu/web/kenanethics/CaseStudies/GoogleInChina.pdf);
Wikipedia, Google China
(http://en.wikipedia.org/wiki/Google_China).
168
VII.C.3 Google Books: Copyright Law or Public Interest?
Bruno Carotti
1. Background
In 2010, it was estimated that around 130 million books exist in the world.
Thanks to undertaking seven-year long – and still ongoing – project, Google
should complete its collection of them by the end of the present decade. What
does this mean?
In 2004, Google began a project involving the scanning, conservation and
diffusion of printed materials. Scanned books are stored in its third-level domain
website. Once there, users can search inside the texts; and the possibility to view
the content inside particular windows (snippets) is also exists. To date, Google
has scanned some 15 million books in the course of the project.
Google has pursued a two-pronged approach in this regard. On one hand,
it has concluded agreements with the main publishers; on the other, it has done
the same with certain institutions – in particular the most important libraries,
such as the New York Public Library, the Universidad Complutense of Madrid, the
Bodleian Library of Oxford, and that of the University of Keio.
The purpose of the project appears honorable, even noble: the diffusion of
knowledge and the spreading of culture. Yet, it is not difficult to discern the
presence of an economic aspect within it. The contrast between these two
elements makes clear what is at stake: the potential clash in particular, between
the public interest (in a general and accessible diffusion of culture that is without
precedent in history) and the interests of copyright holders (which might prefer
not to include their works into the new system). Even if it is not possible to view
or download the entire text of the book, a number of problems have arisen as a
direct result of Google’s decision to pursue its project in a particular way: that is,
without seeking the prior consent of the copyright holder to inclusion of the
work.
In 2005, a number of publishing associations initiated a class action suit
alleging infringement of copyright. Some of these reached a settlement agreement
in October 2008. On the back, however, of a number of criticisms made by the
US Department of Justice’s (relating to potential violations of antitrust law), the
original agreement was modified and, in November 2009, the parties signed an
Amended Settlement Agreement (ASA).
169
The ASA was then presented to the court. Under Rule 23 of the Civil
Procedure Act, any such agreement must be evaluated from the perspective of
the class action, and, in particular, in terms of its representativeness of and
correspondence to the interests of the entire class (and not just to some members
thereof). The requirements for a group to be considered a “class” for the
purposes of such a lawsuit are as follows: numerosity (the number of the
interested subjects involved must be so high that a joinder of all of them is not
practicable), commonality (the presence of a question of fact or law affecting all
or a substantial number of the class members) and typicality (the “common
ground” between the claim or defense of the plaintiff and the rest of the class).
On March 22, 2011, Judge Denny Chin of the District Court of New York
refused the motion for the approval and required the parties to modify the ASA,
considering it not fair, reasonable, and adequate. “While the digitization of books
and the creation of a universal digital library would benefit many, the ASA would
simply go too far” (U.S. District Court – Southern District of New York, Authors
Guild et al. v. Google Inc., p. 1).
To “go too far”: the nature of the ASA could not be reconciled with Rule
23(e); the interest of the “class” and the provisions of the putative settlement
were too far apart for the latter to be accepted by the court.
Google’s project will not, of course, stop there. The opinion of the Court
seems to invite the parties to refine certain elements of the ASA in order for it to
pass muster. Its relevance in general terms, as project of the utmost innovation
and importance, was set out in a letter sent to the Court by the National
Federation of the Blind: “[t]his is a watershed event and can serve as a catalyst for
the reinvention of education, research and intellectual life”.
2. Materials
-
-
Authors’ Guild, Class Action Complaint, case 05 CV 8136, of September 20th,
2005
(http://www.authorsguild.org/advocacy/articles/settlementresources.attachment/authors-guild-vgoogle/Authors%20Guild%20v%20Google%2009202005.pdf);
U.S. District Court – Southern District of New York, The Authors Guild et
al. v. Google, Inc., 05 CV 8136, 22 March 2011
(http://www.sne.fr/img/pdf/Actualit%C3%A9s/CourtOrderREjectingSet
tlement.pdf);
170
-
Amended Settlement Agreement (Asa), 9 November 2009
(http://www.googlebooksettlement.com/intl/it/Amended-SettlementAgreement.zip).
3. Analysis
Different categories of books are involved in the Google Books project. Works
no longer under copyright can be fully displayed; copyrighted works are scanned
and inserted into the system, unless the author requires their removal; in such
cases, Google must comply within a period of thirty days. The third category is
the so-called orphan books. It is the most important one, as it involves those works
for which permission cannot readily be sought; cases in which the copyright
holder cannot be identified or located.
Google did not ask for permission to introduce the texts in his search
engine. It did so unilaterally. The opinion of the Court is critical on precisely this
point. In the words of Judge Chin, “it is incongruous with the purpose of the
copyright laws to place the onus on copyright owners to come forward to protect
their rights when Google copied their works without first seeking their
permission” (Authors Guild et al., § 4). Instead of an opt-out, the approached
preferred by Google, an opt-in mechanism should be rather established.
Google’s system thus actually envisages a form of “expropriation”.
Copyright acts as a guarantee to authors; they need not engage in any continuous
activity in order for this protection to exist. The Copyright Act – § 106, no. 1 and
3, 17 U.S. Code – is clear: exclusive rights to make and to authorize any
reproduction, preparation of derivative works, distribution of copies to the public
(by sale or other transfer of ownership, or by rental, lease, or lending), belong to
the owner of copyright in all cases, with the limitation of fair use (see infra).
“Under the ASA, however, if copyright owners sit back and do nothing,
they lose their rights” (Authors Guild et al., § 4). This sort of “sanction”, which can
under Google’s approach be a result of simple inactivity, is not consistent, in the
opinion of Judge Chin, with the law: in allowing it to continue, then, the ASA
failed to be adequately representative of class members’ interests – the specific
requirement of Rule 23.
This element was held particularly important in terms of orphan works, as
in such cases the copyright holder cannot be contacted and thus, by definition,
permission cannot be sought. As argued during the hearing, Google’s attitude in
this regard was not collaborative, but unilateral; it’s business plan involved simply
collecting texts irrespective of authorial consent, and saying “so, sue me”. The
management of the digitized orphan books as proposed under the ASA was held
171
to constitute “a de facto monopoly” in Google’s favor; in addition, “Google’s
ability to deny competitors the ability to search orphan books would further
entrench Google’s market power in the online search market” (Authors Guild et
al., § 5). A delicate argument was introduced as for the unique ability of Mountain
View to treat the orphan works: the substantial absence of competitors in this
field could generate profits from no-cost or low cost activities, thus multiplying
gains and creating a situation of market leverage (even if the concrete risk of such a
situation has already been contested: see Leonard, 2010).
A crucial point concerned future releases. While the class action suit sought
to address Google’s previous conduct, the ASA went much further than thus and
also granted the right to scan new books and include them in its database,
limiting and reducing, at the same time, its legal responsibility in this regard. This
was not merely a problem of future “claims” (related to past events), but also an
issue in which of future conduct was implicated: in other words, the ASA
represented not only a limitation of responsibility for the previous actions (the
already digitized books), but also an attempt to regulate future behaviour. The
“factual predicate doctrine”, crystallized in the District Court decision in WalMart Stores, was thus applied: in essence, the ASA sought to “release” future
claims that would be based on an underlying “factual predicate” different to the
one of the dispute at hand, and as such could not be accepted.
Another problem discussed was the system of revenue sharing that the
ASA would have established. In particular, it provided for the establishment of a
Book Rights Registry, charged with the maintenance of a rights-holders’ database, as
well as the administration of revenues from future sales. Managed by a Board
consisting of an equal number of Authors and Publishers’ representatives, it
would initially operate on the basis of funds provided by Google, who would also
provide 70% of the net revenue from future sales and advertising to the Registry
on behalf of rights holders. In addition, an Unclaimed Works Fiduciary would have
assumed responsibility for issues concerning unclaimed works. Although the
Court did not hold these aspects unfair per se, it did find there was a problem
when connected to the “opt out” approach that Google proposed. A related
problem of price-fixing was also identified, as the basis on which they would be
set was unclear.
A number of specific issues relating to international law were also raised.
The German and French Governments contested the possible violation of
copyright owners’ rights in their own countries, as these authors would be
affected by an agreement approved under a particular legal order, out with any
common international framework.
In this case, the chosen solution constitutes a form of “institutional
deference” as it was decided that Congress was the body best placed to resolve
172
the issues in question. The Court’s view was that it was for the legislature to
define a common strategy through an appropriate balancing of competing
interests. This opens the door to a range of different issues: on the one hand, it
explicitly recognizes the importance of coordination between the international
legal order and the national one (a number of foreign Governments objected, for
example, to the absence in the ASA of any respect for the international legal rules
and principles relating to copyright); on the other, it endorses a traditional
approach to matters international, affirming that only the legislature can
legitimately pass laws relating to international relations. The views of Congress
should, according to the Court, take precedence in this regard over different
mechanisms of governance, such as arrangements and partnerships between
private and public actors – which are becoming important legal instruments in
addressing regulatory misalignments.
Finally, the Court did highlight potential privacy issues as a further area of
concern, in particular with regard to Google’s collection of data relating to the
books and particular content searched for by users. While this was not
considered a central or even particularly relevant point in the present case, such
privacy concerns have been picked up by and discussed in depth by scholars
writing in the field.
4. Accessibility: Towards the Public Interest
“The benefits of Google’s book project are many. Books will become more
accessible. Libraries, schools, researchers, and disadvantaged populations will
gain access to far more books. Digitization will facilitate the conversion of books
to Braille and audio formats, increasing access for individuals with disabilities.
Authors and publishers will benefit as well, as new audiences will be generated
and new sources of income created. Older books – particularly out-of-print
books, many of which are falling apart buried in library stacks – will be preserved
and given new life” (Authors Guild et al., cit., § A).
The importance of such a project can be easily perceived by any internet
user: Google’s efforts have made a huge amount of texts readily available online.
The potential benefits of this were highlighted by the Court and by opponents of
the ASA alike.
At the same time, Google’s unique role raised many concerns. From the
perspective of the domestic legal order, problems arose, as noted above, in terms
of the Civil Procedure Act.
There is also a profoundly international aspect to all this: when presented
with one of the paradigm examples of globalization (the internet and the new
173
ways challenges it brings in terms of protecting intellectual property rights), the
Google Books project displays some interesting particularities; the most
prominent of which relates to the nature of the interests involved.
Should a private enterprise be allowed to pursue a project of undoubtedly
public relevance? Can the diffusion of culture be “left” in the hands of a private
subject? Is it rather necessary, on the contrary, to recognize the public interest in
a service granting worldwide accessibility to a vast range of texts? In this case,
should a public authority oversee the provision of such a service?
Google has shown incredible technical capacities. Public services often
begin life with a private subject being entrusted with a public mission (think, for
example, of the famous case of the coastal service provider Hurtigruten).
Globalization may indicate that private and public sectors can work side by side,
and it is difficult to distinguish a clear border between them. Lines of
demarcation tend to blur.
Nonetheless, public intervention in this field could ensure that the public
good of access to these works is pursued independently of any profit motive. A
relevant comparison in this regard has been drawn with the development of
collective management methods for copyrighted works. On particular example is
provided by the Norwegian Kopinoor project: the Government, on the basis of an
agreement with rights-holders, is seeking to deliver public access to the entire
collection of Norwegian books (Samuelson 2011). Another effort is made by the
Berkman Center for Internet and Society at Harvard University, which is developing
the so-called Public Library Project, aimed at granting full access to its books
throughout the entire country.
From a slightly different point of view, it is possible to question the
applicability of the “fair use” exception (§ 107 of the Copyright Act) to Google
Books. The “fair use” has been considered as applicable to the display of partial
content of the volumes (the so called “snippets”). The US Supreme Court has
clearly stated that the purpose of the constitutional protection of copyright is to
protect the general interest and the fostering of creativity, not – or not only – to
provide benefits to individuals (United States v. Paramount Pictures, Inc., 9 February – 3
May 1948, 334 U.S. 131). It should be emphasized that the problems related to the
recognition of a “fair use” exception can also arise in those legal systems in which
no such exception is provided for by positive law (e.g., in Italy)
A curious problem of uniformity also emerges from the Google Books
project and the attempted ASA, and in particular from the capacity of the
internet to provide worldwide access to Google’s database and search function.
Had it been successful, Google would in effect have been exporting a unique
form of copyright protection to the whole globe, despite the fact that every legal
order has developed its own particular responses to these issues. Google’s
174
approach could thus clash with the different national rules in place; and, indeed,
this is precisely what happened in France. In December 2009, a Parisian Court
found that the Google project violated French copyright law, and ordered the
company to pay damages to the French publisher La Martinière. Following this
judgment, the project was brought to a halt within France; in particular, French
users – connecting from French territory– were no longer able to access the
service. A recent deal seems to have enabled books to be sold using Google’s
platform again, thanks to new contractual agreements and, in particular, through
a procedure for splitting revenue from the sales between the relevant actors. A
unitary phenomenon is thus visibly fragmented, a result of the division of the
internet and the “nationalization” of the relevant rules (i.e. what is permitted for
American users is forbidden to the French: see also the § VI.B.2 “Jurisdiction
over Cyberspace: YAHOO! in the French and American Courts” by M.
Benedetti).
Arguments in favor of a global governance framework for the protection
of intellectual property rights, which could overcome national fragmentation, are
therefore understandable. A common framework, both regulatory and
institutional, establishing some overall principles, could work in parallel with the
diversity of individual legal orders. In this way, it could preserve a basic degree of
uniformity together with a multi-polarity of regulations. Leaving aside the already
mentioned relations between rules, it may also be worth investigating “differing
degrees of normativity” (Chon, 2011) through general but “soft” forms of
institutional supervision, of the kind that could be provided by the World
Intellectual Property Organization (WIPO).
Finally, it is clear that the development of the internet and the web-related
challenges fostered by various forms of innovation require a rethink of the
structure of copyright law. Diffusion encourages creativity; protection must be
limited, and not granted on a never-ending basis. As many have argued, there is a
risk that “code” will receive excessive, unlimited protection; a level of protection
that will hamper, rather than facilitate, the cultivation of the transformative
possibilities of the internet era. A balance must be struck in order to enable new
forms of – legally protected – creativity to grow. Examples include the collective
management systems mentioned above; and the preference expressed by
academics intervening in the judgment under consideration here for genuinely
open access forms of publishing and distribution, in order to maximize the
diffusion of ideas.
It has been recognized, in this sense, that cooperative contributions to
culture can enhance societal development and further the general interest
(Benkler, 2011; Lessig, 2004). A new culture-related transformation is defining
different methods of culture distribution: “[t]he networked information economy
175
makes it possible to reshape both the ‘who’ and the ‘how’ of cultural production
relative to cultural production in the twentieth century. It adds to the centralized,
market-oriented production system a new framework of radically decentralized
individual and cooperative nonmarket production” (Benkler, 2006).
What kind of balance should be struck to regulate the different positions of
the actors involved? Which is the most favorable to society?
5. Further Reading
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
Y. BENKLER, The Penguin and the Leviathan: How Cooperation Triumphs over SelfInterest, New York (2011);
Y. BENKLER, The Wealth of Networks: How Social Production Transforms Markets
and Freedom, New Haven-London (2006);
M. CHON, “Global Intellectual Property Governance (Under
Construction)”, 12 Theoretical Inquiries in Law 349 (2011);
D. GERVAIS, “The Google Book Settlement and the TRIPS Agreement”,
Stanford Technology Law Review (2011)
(http://stlr.stanford.edu/pdf/gervais-google-books-and-trips.pdf);
J.A. HAUSMAN, J.G. SIDAK, “Google and the Proper Antitrust Scrutiny of
Orphan Books”, 5 Journal of Competition Law & Economics 411 (2009);
(http://www.criterioneconomics.com/pdfs/Google%20and%20the%20Pr
oper%20Antitrust%20Scrutiny%20of%20Orphan%20Books.pdf);
Y. JI, “Why the Google Book Search Settlement Should Be Approved: a
Response to Antitrust Concerns And Suggestions For Regulation”, 21
Albany Law Journal of Science and Technology 231 (2011)
(http://www.albanylawjournal.org/articles/Ji_3.pdf);
G.K. LEONARD, “The Proposed Google Books Settlement: Copyright,
Rule 23, and DOJ Section 2 Enforcement”, 24 Antitrust 26 (2010)
(http://www.nera.com/nerafiles/PUB_Google_Books_Settlement_0710.pdf);
G.K. LEONARD, “District Court Rejects the Google Books Settlement: A
Missed Opportunity?”, in The Antitrust Source, April 2011
(http://www.americanbar.org/content/dam/aba/publishing/antitrust_sou
rce/apr11-leonard_4-20f.authcheckdam.pdf);
L. LESSIG, Free Culture, New York (2004)
(http://www.free-culture.cc);
L. LESSIG, Code and others Laws of Cyberspace, New York (1999);
S. VAIDHYANATHAN, “The Googlization of Everything and the Future of
Copyright”, 40 University of California Davis Law Review 1207 (2007)
176
l.
m.
n.
(http://lawreview.law.ucdavis.edu/issues/Vol40/Issue3/DavisVol40No3_
Vaidhyanathan.pdf);
P. SAMUELSON, “Legislative Alternatives to the Google Book Settlement”,
34 Columbia Journal of Law & the Arts (2011) (forthcoming)
(http://people.ischool.berkeley.edu/~pam/GBS.html);
ID., “Academic Author Objection to the Google Books Search
Settlement”, 8 Journal of Telecommunications and High Technology 217 (2010)
(http://stlr.stanford.edu/pdf/gervais-google-books-and-trips.pdf);
E. STROMBERG, R. SHETH, W. NORMA (Supervisor), “Google Books:
Liberating the World’s Information, or Appropriating It?”, Kenan Institute
for Ethics, Duke University, 2011
(http://www.duke.edu/web/kenanethics/CaseStudies/GoogleBooks.pdf).
177
VII.C.4 The Google – Vivi Down Case: Providers’ Responsibility, Privacy
and Internet Freedom
Bruno Carotti
1. Background
On May 24th, 2006, three teenagers bullied an autistic boy in a school in Turin,
Italy. A fourth stood with a camera, while others watched without intervening.
The perpetrators attacked the boy, insulted him, and struck him with thrown
objects. Explicit reference was made to the organisation “Vivi Down”, which
supports scientific research and the care of people affected by Down syndrome.
In fact, the victim was autistic and suffered from hearing and visual impairment,
and was bullied as a result of this.
Having recorded their deeply unpleasant behavior on video, the offenders
posted a three-minutes lasting video on the website http://video.google on
September 8th, 2006. The video became highly ranked in the “funny video”
category, reaching more than five thousand downloads. Through the use of
Google Ad-Words services, some specific terms began to be associated with the
video: advertising posts thus appeared beside the images. An act of violence and
crude disrespect thus apparently turned into a business affair.
Some commenters were strongly critical of the video. Having been officially
contacted – on November 6th, 2006 – by the police, who had received a
significant number of complaints, Google removed the video the next day. It had
been available to the general public for two months. Vivi Down lodged a
complaint, requesting that criminal charges be brought (including for criminal
defamation). The victim’s father insisted that to the Prosecutor that Google
should also be held responsible, protesting against the lack of control over the
contents displayed on its website.
Google reached an agreement with the victim (acting through his father) to
settle the dispute out of court. Nevertheless, the complaint by Vivi Down led the
Prosecutor’s office to bring criminal charges against four Google managers,
David Drummond, George De Los Reyes, Peter Fleisher and Arvin Desikan. On
the 24th of February 2010, Judge Oscar Magi of the Fourth Section of the
Ordinary Milan Tribunal convicted the first three defendants, sentencing them to
six months’ imprisonment, suspending the sentence. The judgment was
published on April 12th, 2010; it is currently under appeal.
178
The offenders, identified on the basis of the data collected by the Google’s
video service, had already been convicted, in a separate process, for assault and
slander.
2. Materials
-
-
-
Monocratic Milan Ordinary Tribunal, 4th Criminal Section, Repubblica
Italiana v. Drummond, De Los Reyes and Fleischer, Decision no. 1972/2010, of
April 12th, 2010
(http://www.giurcost.org/casi_scelti/Google.pdf);
Legislative Decree of June 30th, 2003, no. 196, Codice in materia di
protezione dei dati personali (Privacy Code), available (in Italian language) at
(http://www.normattiva.it);
Directive 2000/31/EC of the European Parliament and of the Council, of
8 June 2000, on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market (Directive on
electronic commerce), O.J. L 178, July 17th, 2000, p. 1 et seq.
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:178:0001:0001:E
N:PDF);
ViviDown Association
(http://www.vividown.org).
3. Analysis
The Italian court principally addressed the issue as a violation of privacy, which
constitutes a criminal offence. The defamation claim in relation to the victim was
disbarred as a result of his voluntary settlement with Google. However, it was
allowed to proceed in relation to Vivi Down, which was found to hold a distinct
and autonomous interest in the matter.
The Court first evaluated the scope of Article 40.2 of Italian Criminal Code,
under which a failure to prevent an event that the subject in question had a legal
duty to prevent is considered equivalent to causing that event (responsibility for
omissions).
The Court found the Google managers not guilty in this regard, as the
defamation complained of could not have been avoided. “Ad impossiblia nemo
tenetur”: the Court’s findings on this point are summarized at page 93 of the
179
judgment: effectively that there was no way in which Google could exercise
effective control over the thousands of videos (and other materials) uploaded to
the web every day. Existing Italian law does not, the Court found, oblige Google
to exercise such preventive control over internet content; and Google did not
owe the kind of “duty of care” (posizione di garanzia) required for Article 40.2 of
the Criminal Code to come into play. It is noteworthy that in judge’s opinion, the
adoption of a specific norm, aimed at regulating such cases, might be desirable
(see p. 107).
The Court did find the accused guilty, however, of the more serious crime
set out in Article 167 of Legislative Decree no. 196 of 2003 (the “Privacy Code”),
which protects personal data and sets a sentence of up to three years’
imprisonment in case of violation. The Court found that Google’s managers had
violated this law by failing to provide an adequate level of protection of personal
data.
As a preliminary matter, the Italian Privacy Code was held applicable to the
conduct even if the servers were located in the United States. The reason given
by the Court was that Google had established a partner company in Italy (Google
Italia). The reasoning on this point does not seem entirely sound, however, as it
failed to provide an overall examination of the jurisdictional issues (it is worth
noting, for example, that some of the content oversight was performed by
Google’s Irish subsidiary).
In a little more detail, the Court’s argument was that Google’s behavior
could be qualified as a form of voluntary damage. This “conclusion” was inferred
from certain characteristics of Mountain View’s advertising system. According to
Sartor and Cunha (p. 363), in particular, “Google Italy takes part in a commercial
process that also includes the processing of the videos uploaded in Italy. It does
so by promoting the Google Videos service and the related advertising (through
Google AdWords). Thus, it can be seen as (indirectly) participating in this
process, even though the servers processing the videos are located outside Italy
and run by Google Inc. So, according to the judge, Google Italy was involved in
the processing of the Italian videos in the US.” In other words, the potential for
significant income that its intervention in the Italian video market represented –
an argument particularly stressed by the Prosecutors, less so by the Court –
meant that Google had to adopt a more cautious attitude to content that was
more attentive to privacy concerns.
In the Court’s view, in particular, Google should have inserted into the
contractual conditions of service an explicit and readily visible warning about the
possibility that content might violate the rights of third parties. By failing to do
so, and thus failing to make the content uploader aware of the potential
180
consequences of his or her action, Google became liable for the damage that
resulted.
By not making a clause of this nature prominent (it was considered
“hidden” by the Court), Google assumed responsibility for the risk that personal
data could be transmitted unlawfully under Italian law – precisely what was
alleged to have occurred in this case. The ex post possibility for users to “flag”
content as objectionable was held to be insufficient in this regard; and the Court
found that the resources dedicated within Google’s Italian subsidiary to the task
of ensuring compliance with Italian data protection law to have been seriously
lacking – itself revealing an attitude of superficial compliance with – if not
outright disrespect for – the national legal order.
This element of the Court’s reasoning is not entirely consistent, as it
acknowledged that liability could in some cases remain even where Google had
taken steps to ensure that warnings relating to possible violations of the rights of
third parties were explicitly and prominently contained in the terms and
conditions. The Court therefore found, on the one hand, the Google managers
guilty for failing to clearly inform users about these potential risks; on the other
hand, however, it held that perhaps even having taken such action would have
been insufficient to avoid liability completely. It should be noted that Google was
defined in the judgment as a “content provider”, and not merely as a “host
provider”. The former carries a much heavier burden, as it implies responsibility
for the content uploaded to the web, while the latter means that the company in
question merely provides space on a particular server. The former category
therefore brings with it obligations to exercise a much higher degree of control.
This definition was not entirely coherent; indeed, it is based upon the
functioning of the Ad-Words service (the indexing of certain terms and their
correlation to particular content). Even although the judge acknowledged the
risks and challenges of tightly controlling web content (at no point suggesting
that the responsibility of providers should be unlimited in this regard), he
nonetheless did advocate legislative reform in order to clarify the difference
between “host” and “content” providers. This solution might help to address, on
the one hand, the legal and technological challenge of ensuring robust control
over the contents distributed online and in defining, on the other hand, the exact
roles of the actors involved. The decision seems indeed to fall in something of a
grey area, relying on uncertain terms such as “active host” to describe Google’s
activity (see p. 95 and 101 of the judgment), which should at least be clearly
explained.
The judgment appeared to focus on economic considerations. The applied
scheme seems to be the following: given that the new service generates huge
revenues, a form of responsibility should exist in relation to that activity. The
181
practice of profiting from the Internet without accepting any form of
responsibility within the national legal order seems to have been the judge’s main
target in this case.
4. Content Control and Freedom of Expression: the Quest for a Balance
The judgment raised many eyebrows – in Italy and beyond – and has received
much criticism, in particular for its potential effect on the core functioning of the
Internet. As the US Ambassador pointed out, the material was certainly
reprehensible and necessitated immediate removal but “[t]he fundamental
principle of internet freedom is vital for democracies which value freedom of
expression and is protected by those who value liberty”.
In general terms, the clear identification and definition of the roles of the
different actors operating in the “information society” is at stake. While it is
worthy and honorable to defend human dignity and individual rights, protecting
vulnerable people and acting against terrible conduct, it seems unsatisfactory at
best – and dangerous at worst – to do so on the basis of legal actions and
reasoning of questionable rigor that have the potential to affect the basic
functioning of the internet.
It is important to underline three different elements in this regard. First,
European Directive no. 2000/31/EC, on Electronic Commerce, provides that
Member States shall ensure that the service provider is not liable for the
information stored at the request of a recipient of the service, under the
condition that it “does not have actual knowledge of illegal activity or
information” and that it “acts expeditiously to remove or to disable access to the
information” (art. 14). In addition, “Member States shall not impose a general
obligation to monitor the information [transmitted], nor a general obligation
actively to seek facts or circumstances indicating illegal activity” (art. 15).
Specific provisions are also set out in the Italian Legislative Decree (no.
70/2003) that implemented the Directive (Arts. 16 and 17). The Court did not
apply the Decree, as it considered that the scope of intellectual property rights
(IPR) legislation is different, and not relevant to the case before it. The
transmission of sensitive personal data (regarding the health conditions of the
victim) was at issue here, not the protection of IPR.
As noted above, Court characterized Google not as a simple service
provider, but as a content provider or an “active host”. The defending counsel
sought to argue that Google operated only as an intermediary – without success,
as this thesis was rejected by the Court.
In fact, the European Court of Justice has made it clear that the Directive
exempts providers (namely, Google and eBay) for trademark violation committed
182
by their users unless they play an “active role” in the unlawful activity. While this
decision might seem to pave the way to an affirmation of a very high level of
responsibility on providers, the ECJ set out precisely what is to be considered an
“active role”: it certainly appears a higher level of involvement than the automatic
indexing of videos, as it refers to the promotion of the material for sale, or the
awareness that the conduct (or product, as the case may be) is unlawful.
The first main issue that can be raised in this context is, then, the question
of whether there should be any normative connection between the areas of IPR
and sensitive personal data protection. Should a coherent and comprehensive
legal framework for all such activities be established?
The second issue relates to the fragmentation of web regulation into the
different national legal orders, which is once again shown by this case to be
inevitable, given the desire of public authorities to intervene in this field. Internet
governance encounters a range of different challenges, relating not only to
technology and infrastructure, but also to the services and content provided.
It is worth noting, in this regard, that, in September 2010, Google and Vivi
Down developed a contractual arrangement that provides the latter with a new
and faster privileged mechanism for flagging offensive videos, which will ensure a
prompt response by the former. Such instruments face regulatory problems in
seeking to strike a balance between the interests involved, delineating the
responsibilities of the actors and ensuring, at the same time, a high level of rights
protection.
Does, then, this case support the idea that the regulation of globally
relevant phenomena, such as the internet, should rely on a mixture of private and
public intervention? Should there be a new method of self-regulation, or rather
stricter forms of public control?
The third issue, from a more general perspective, concerns the best way to
solve legal problems generated by the development of new technologies. Does
this necessitate a parallel evolution in the legal concepts that will be applied? The
Google – Vivi Down case actually seems to raise a slightly different issue: if not a
different concept or a different regulatory output, perhaps a different
interpretative attitude must be sought; one that avoids possible
misunderstandings of the burdens imposed on the actors operating in the
information society (which is, of course, constantly changing and developing).
The establishment of some framework principles, which must be respected
by domestic administrations, is nonetheless highly desirable in this field. Such a
convergence of basic norms would serve to avoid the situations of dangerous
uncertainty in which the three Google managers found themselves.
In conclusion, it must be borne in mind that that, while action must be
taken against the posting of the illicit material online, and the provider must
183
cooperate fully with local authorities in order to confront criminal conduct,
subjecting the internet as a whole to various forms of supervision and control is a
different question, and could easily descend into a form of pervasive and
unpredictable censorship. It must be recognized that a more general good is at
stake: the freedom of information on the web, as originally conceived by its
founders.
5. Further Reading
-
-
-
-
-
-
R. DONADIO, “Larger Threat Is Seen in Google Case”, The New York Times,
February 24th, 2010
(http://www.nytimes.com/2010/02/25/technology/companies/25google.
html?pagewanted=all);
European Court of Justice, Grand Chamber, Google France SARL, Joined
Cases C-236/08 to C-238/08, March 23rd, 2011
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0236:EN:H
TML);
European Court of Justice, Grand Chamber, L’Oréal and Others v. eBay and
Others, C-324/09, July 21st, 2011
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:269:0003:0005:E
N:PDF);
Google Blog, “Serious threat to the web in Italy”, February 24th, 2010, at
(http://googleblog.blogspot.com/2010/02/serious-threat-to-web-initaly.html);
R. MENDEZ, “The Google Case in Italy”, 1, 2, International Data Privacy Law
137,
(http://idpl.oxfordjournals.org/content/1/2/137.full.pdf);
See also the Masters Thesis
(http://www.chiefprivacyofficers.com/uploads/2/6/6/5/2665080/thesis.
pdf);
G. SARTOR, M. VIOLA DE AZEVEDO CUNHA, “The Italian Google-Case:
Privacy, Freedom of Speech and Responsibility of Providers for UserGenerated Content”, 18 International Journal of Law and Information Technology,
356 (2010)
(http://ijlit.oxfordjournals.org/content/18/4/356.full.pdf);
Statement by Ambassador David Thorne: Ruling in Google Court Case,
February 24th, 2010
(http://italy.usembassy.gov/news-events/google.html).
184
VII.C.5 Global Interactions: SpotCloud, a Market for Computing Power
Tomasz Koziel
1. Background
Cloud computing emerged at the very beginning of the 21st century as an
alternative to existing models of computing, such as cluster and grid computing.
It allows data to be moved from an on-site PC to a central storage unit, often
administered by third parties (the so-called “cloud”). Applications or documents
available in the cloud can be accessed from PCs, mobile phones, tablets, etc. This
is possible through creation of virtual machines to which users connect from
these devices. The difference between cloud and traditional computing resides
mainly in the fact that very little data can be stored on devices serving as
terminals allowing access to cloud applications. Cloud is frequently praised for its
potential to transform computing into a utility. This would fulfil the prophecy of
Leonard Kleinrock, who predicted in 1969 that computing would become a basic
element of everyday’s life, just like electricity and the telephone.
The functionality and reliability of a cloud depends on performance of the
system. The main factor determining successful offering of cloud services is
safety and speed of data transfer. Moreover, it requires high storage capacity
which would be sufficient to host applications, data and profiles for a great
number of users. The resulting necessity to accumulate large amounts of data in
one location may give rise to two sets of problems. On the one hand, building up
own storage capacity may result in substantial expenses related to the cost of
servers, software and maintenance services. This may constitute a financial
barrier to companies with limited resources, as well as those that have only a
irregular interest in cloud applications. On the other hand, large users operating
their own storage facilities may frequently be confronted with the problem of
unused capacity. For instance, a film studio may be using dozens of servers to
produce a new animated movie. This capacity is freed once the work is done and
the movie released to theatres. As a result, both a demand for and supply of short
term capacity is created. This was spotted by Enomaly, a Toronto based
company which decided to launch a marketplace for trading short-term cloud
capacity – SpotCloud.
SpotCloud works as a contact platform for users or brokers (buyers) and
capacity providers (sellers) which trade cloud capacity like a commodity. Potential
185
buyers may bid for offers of storage capacity based on their performance, price,
technology and location. Although SpotCloud is frequently referred to as a
clearinghouse, the way it works has to be distinguished from traditional clearing
services offered for other commodities. The difference resides mainly in the fact
that SpotCloud does not offset transactions, which results in a higher risk for the
parties should the contract not be fulfilled. The idea of trading cloud capacity is
interesting, especially in the context of the development of cloud computing and
the attempts by regulators to harness the benefits it may produce for society in
general.
2. Materials
-
-
-
European Network and Information Security Agency, Cloud Computing:
Benfits, risks and recommendations for the information society, November 2009
(http://www.afei.org/events/0A02/Documents/Cloud%20Computing%2
0Security%20Risk%20Assessment%5B1%5D.pdf);
Final Report prepared for Unit F.5, Directorate General Information
Society and Media, European Commission, 30 November 2010, The Cloud:
Understanding the Security, Privacy and Trust Challenges, RAND Europe, time.lex
(http://cordis.europa.eu/fp7/ict/security/docs/the-cloud-understandingsecurity-privacy-trust-challenges-2010_en.pdf);
European Commission, Digital Agenda Assembly, June 2011, Towards a
cloud computing strategy for Europe: Matching supply and demand
(http://ec.europa.eu/information_society/activities/cloudcomputing/docs
/daa-ws18-cloudcomptuing-finalreport.pdf).
3. Analysis
The market can be described as a place, be it real or virtual, where supply meets
demand. This simple idea underpinned the creation of SpotCloud. It allows those
who need additional computing capacity to register in a virtual marketplace and
search for an appropriate offer. Potential buyers would see fees charged to their
account for using storage capacity on hourly basis (a “pay as you go” system).
Moreover, the offer displays information about available space. Interestingly,
sellers may opt not to disclose their identity. By doing that, they may avoid
cannibalization of SpotCloud offers on their premium services available
elsewhere. However, such anonymous offers may appear less attractive for
186
buyers for whom safety considerations are particularly important. In that regard,
the European Commission has noted that the issue of trust is among the major
obstacles to the development of cloud computing services. To resolve that
problem, the Directorate General Information Society and Media (DG Infso) of
the European Commission envisages a long-term strategy which would improve
the safety of computing in the cloud and foster its utilization.
However, the attractiveness of cloud capacity trading resides precisely in
the simple nature of spot markets. This simplicity translates into reductions in
search costs which the sellers would otherwise incur in finding buyers for its
services. These costs could be so high as to discourage them from otherwise
renting out spare capacity. The benefits for small and medium-size companies
acting as buyers is an alternative to investing in their own infrastructure or using
premium services (such as Amazon Elastic Compute Cloud). The resulting
societal gain is obvious, as excessive supply of otherwise unused cloud capacity
can be effectively accommodated. In return for operating the market, SpotCloud
charges a commission ranging from 10% to 30% of the value of a deal.
In addition to the aforementioned information, the sellers also indicate in
their offers the technology used and location of servers. This is supposed to give
buyers an idea of the quality of the service, as well as the legal regime applicable
to the content stored on the servers. It seems, however, that despite these
improvements, the service is rather unlikely to attract high profile customers
dealing with sensitive data. To the contrary, as the creator of SpotCloud put it,
the trade in cloud capacity is rather meant for those who will not incur significant
damage and “do not mind starting all over again if something goes wrong.”(see,
statement by Raven Cohen in an article from The Economist, “Cloud computing: A
market for computing power”, accessed on 2 October 2011 at:
http://www.economist.com/node/18185752).
4. Issues: Navigating Law in the Cloud: Between Privacy and Jurisdictional Questions
The ease with which a platform for trading cloud capacity was created owes to
the regulatory lacunae in this field. This lack of regulation may, however, pose
certain risks for users. To fully understand their nature, one has to realize that it
is not the trade in the commodity itself which may be problematic. In fact, most
controversies arise in relation to the activity which follows the deal, i.e.
transferring and storing data in a remote location. Such concerns are, in principle,
shared with those relating to cloud computing more generally, and include
privacy issues, data safety, and questions of jurisdiction. However, the above
187
mentioned features of a spot market make the potential risks related to cloud
computing even more imminent.
Due to limited available information, customers may not know how safe
their data and how reliable the service is. In this respect, a report for the
European Commission entitled “The Cloud: Understanding the Security, Privacy
and Trust Challenges”, pointed out that standardized data safety technology and
increased transparency in offering cloud services should mitigate these problems.
However, subordinating capacity providers to onerous regulatory supervision
may well mean the end of a spot market for cloud capacity. This is because, for a
company offering its excessive capacity only occasionally on the market, the cost
of regulatory compliance may offset profits from sale. As a result, supply may
considerably shrink, leaving potential customers with less alternatives.
Regarding jurisdictional issues, the lack of clarity on the rules governing
cyberspace or, for instance, personal data, may render the laws applicable to the
cloud less transparent. This may result in an overlapping application of multiple
legal regimes, based on personal jurisdiction, territorial jurisdiction or the effects
doctrine. On the other hand, the ease of migrating data from one cloud to
another, coupled with the predominantly short-term nature of transactions, may
facilitate the commission of cybercrime.
Similar concerns were voiced with respect to contractual relations between
the parties, and in particular to personal data protection issues. For instance, in
the EU, the processing personal of data is subject to strict regulation. In this
respect, the European Commission has pointed out that the question of privacy
is one of the most problematic aspects of cloud computing. This is not
surprising, bearing in mind the grave and possibly irreversible consequences of
mishandling personal data, as opposed to trading traditional commodities.
Therefore, the EU, which is at the forefront of the attempts to regulate
cloud computing, prepared a comprehensive strategy addressing many of the
above-mentioned issues. If these efforts finally yield results, one may reasonably
expect the new regulatory framework to affect the trading of cloud capacity.
Hopefully, this will not lead to a fragmentation of the global market on which
cloud capacity is currently being traded. Otherwise, it would increase the very low
costs related to the transfer of data, and deprive the market of one of its most
attractive features.
5. Further Reading
a.
P. LANOIS, “Caught in the Clouds: The Web 2.0, Cloud Computing, and
Privacy?”, 9 Northwestern Journal of Technology & Intellectual Property 29 (2010);
188
b.
c.
d.
e.
J. D. REIDENBERG, “Technology and Internet Jurisdiction”, 153 University
of Pennsylvania Law Review 1951 (2005);
Y. A. TIMOFEEVA, “Worldwide Prescriptive Jurisdiction in Internet
Content Controversies: A Comparative Analysis”, 20 Connecticut Journal of
P. VAN EECKE, “Online Service Providers and Liability: A Plea for a
Balanced Approach”, 485 Common Market Law Review 1455 (2011).
M. H. WITTOW, D. J. BULLER, “Cloud Computing: Emerging Legal Issues
for Access to Data”, Anywhere, Anytime, 14 Journal of Internet Law 1 (2010).
189
VII.D Global Security
VII.D.1 The Regulation of Global Security Operations: The Case of the
European Union’s Operation Artemis
Edoardo Chiti
1. Background
Since 1999, an armed conflict between local ethnic groups and foreign backers
such as Uganda and Rwanda has ravaged the Ituri region of the Democratic
Republic of Congo. In the absence of effective control by the national authority,
the conflict has directly involved the civilian population, and ethnic massacres,
rape and torture have been documented by the United Nations. In May 2003,
following the withdrawal of Ugandan troops from the region, Lendu militias and
the Union of Congolese Patriots attempted to maintain control of the town of
Bunia, provoking a serious humanitarian crisis.
In response to the crisis, the Security Council, acting under Chapter VII of
the Charter of the United Nations, adopted Resolution N° 1484 on May 30,
2003. This Resolution authorized the temporary deployment of an Interim
Emergency Multinational Force in Bunia, “to contribute to the stabilization of
the security conditions and the improvement of the humanitarian situation in
Bunia, to ensure the protection of the airport, the internally displaced persons in
the camps in Bunia and, if the situation requires it, to contribute to the safety of
the civilian population, United Nations personnel and the humanitarian presence
in the town”. Following contact with the French President and the EU SecretaryGeneral/High Representative, the Secretary-General of the United Nations asked
EU Member States to provide a temporary stabilization force in the Ituri Region
in implementation of the mandate provided in Resolution 1484. On June 5, 2003,
the Council of the European Union adopted Joint Action 2003/423/CFSP,
which provided for and regulated an EU military operation in the Democratic
Republic of Congo, codenamed “Artemis”, in accordance with the mandate set
out in Resolution 1484. The European force was made up of 1100 troops. France
190
acted as the “framework nation” of the operation, and was the main contributor
of military personnel (800 troops). In addition to France, Sweden and the United
Kingdom provided personnel to the force, together with some (at that time at
least) non-EU contributors (Brazil, Canada, South Africa and Cyprus; Hungary
provided personnel to the operational headquarters in France). The operation
ended in September 2003.
The legal framework was laid down by a number of provisions and
measures: Articles 39-54 of the Charter of the United Nations; Resolution 1484;
Articles 11-28 of the Treaty on European Union; the EU measures establishing
and regulating Operation Artemis, such as EU Council Joint Action
2003/423/CFSP, EU Council Decision 2003/432/CFSP (on the launching of
the European Union military operation in the Democratic Republic of Congo),
Political and Security Committee Decisions DRC/1/2003, DRC/2/2003,
DRC/3/2003 (on the acceptance of third States’ contributions to the EU military
operation in the Democratic Republic of Congo, and the setting up of the
Committee of Contributors).
Several bodies were involved in the operation: the Security Council and the
Secretary-General of the United Nations; the European Union bodies competent
in the field of the European security and defense policy (i.e. the Council of the
European Union, the Political and Security Committee, the Military Committee
of the European Union, and the Military Staff of the European Union); the
European Union bodies set up in connection with the Artemis operation, such as
the Operation Commander, the Force Commander, the Committee of
Contributors, and the multinational force; governments and military
administrations of the European Union Member States as well as those of the
third countries participating in the operation; and, lastly, the Government of the
Democratic Republic of Congo, the Congolese population and the Governments
of Uganda and Rwanda, which were involved in the conflict.
-
Charter of the United Nations, Articles 39-54
(http://www.un.org/aboutun/charter/index.html);
Treaty on the European Union, Articles 11-28
(http://eur-lex.europa.eu/en/treaties/index.htm);
United Nations Security Council Resolution 1484 (2003), 30 May 2003
(http://www.consilium.europa.eu/uedocs/cmsUpload/UNresolution1484.
pdf);
Council Common Position 2003/319/CFSP of 8 May 2003 concerning
-
-
-
-
-
-
191
European Union support for the implementation of the Lusaka Ceasefire
Agreement and the peace process in the Democratic Republic of Congo
and repealing Common Position 2002/203/CFSP, in OJEU 2003 L 115
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003E
0319:EN:HTML);
Council Joint Action 2003/423/CFSP of 5 June 2003 on the European
Union military operation in the Democratic Republic of Congo, in OJEU
2003 L 50
(http://www.consilium.europa.eu/uedocs/cmsUpload/Joint%20action%2
05.6.03.pdf);
Council Decision 2003/432/CFSP of 12 June 2003 on the launching of the
European Union military operation in the Democratic Republic of Congo,
in OJEU 2003 L 147
(http://www.consilium.europa.eu/uedocs/cmsUpload/Decision%2012.06.
03.pdf);
Political and Security Committee Decision DRC/1/2003 of 1 July 2003 on
the acceptance of third States’ contributions to the European Union
military operation in the Democratic Republic of Congo, in OJEU 2003 L
170
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003D
0500:EN:HTML);
Political and Security Committee Decision DRC/2/2003 of 11 July 2003
on the setting up of the Committee of Contributors for the European
Union military operation in the Democratic Republic of Congo, in OJEU
2003 L 184
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003D
0529:EN:HTML);
Political and Security Committee Decision DRC/3/2003 of 31 July 2003
amending the Political and Security Committee Decision DRC/1/2003 on
the acceptance of third States' contributions to the EU military operation in
the Democratic Republic of Congo, in OJEU 2003 L 206
(http://eurlex.europa.eu/LexUriServ/site/en/oj/2003/l_206/l_20620030
815en00320032.pdf);
Peacekeeping Best Practices Unit Military Division, Operation Artemis. The Lesson of
the Interim Emergency Multinational Force, October 2004
(http://www.un.org/Depts/dpko/lessons);
A Secure Europe in a Better World, Javier Solana, EU High Representative for
the Common Foreign and Security Policy, European Council, Thessaloniki,
20 June 2003
(http://ue.eu.int/ueDocs/cms_Data/docs/pressdata/en/reports/76255.pd
192
-
f);
Communication from the Commission to the Council and the European
Parliament, The European Union and the United Nations: The Choice of
Multilateralism, COM (2003) 526
(http://ec.europa.eu/external_relations/un/docs/com03_526en.pdf).
3. Analysis
The law governing Operation Artemis stemmed from the combination of a
number of different UN, EU and national decisions.
The UN regulation provided the general framework for the operation.
Security Council Resolution 1484 (2003) defines the mandate of the multinational
force; it assigns political responsibility for the operation to the Security Council,
to be assisted by the Secretary-General; and it confers the strategic, operational
and tactical responsibility upon the Member States that have expressed their
intention to participate in the operation.
The EU regulation set forth the details of the operation, governing the
organization and functioning of the relevant EU bodies and national armed
forces. The management of the operation relied on the establishment of
hierarchical relationships between the various levels of command, from the
bodies responsible for the political and strategic assessment (the EU Council, the
EU Political and Security Committee, assisted by the EU Military Committee and
the EU Military Staff) to the offices responsible for the technical and operative
command (the Operation Commander of the operation and the Force
Commander). The Operation Commander and the Force Commander are at the
top of the command chain of the Rapid Reaction Force, which here took the
form of a multinational force made up of all of the States that agreed to
contribute at the Force Generation Conference, and whose concrete functioning
was regulated by European Council measures (for example, the “operation
plan”), the EU Political and Security Committee and the Committee of
Contributors.
National law, by contrast, regulated the service relationship between
soldiers and national administrations. As a matter of fact, EU law gives EU
commanders general powers concerning operational and tactical command and
control (i.e. the powers to carry out the operation). Yet, within the command and
control chain, national commanders’ retain responsibility for, for example, the
exercise of disciplinary powers, and other aspects of the soldiers’ service
relationship.
Thus, the transnational regulation in this case “leaned” on national law.
193
The latter constituted the only source of regulation of the authoritative powers of
national administrations that participated in the Operation. But the exercise of
the authoritative powers of national administrations took place within the context
of a njormative framework that was defined, at least in its general contours, by
transnational regulation. In structural terms, the emerging discipline may be
represented as a “binary” regime, in which a common level, established by
transnational regulation, coexists with a particular level, characterized by the
variety of national regimes. This overall design, however, is complicated by the
fact that the transnational administrative law in this context was itself a
“composite” regulatory regime, deriving from the combination of UN and EU
law.
4. Issues: Transnational v. National Administrative Law
The underlying issue is the relationship between national administrative law and
transnational administrative law in an area of the global legal space that had
traditionally been reserved to State action.
Considered as a whole, the law resulting from the interconnection between
non-State lawmakers, and between them and national lawmakers, could be
analyzed according to the traditional interpretative schemes of public
international law. Several features would support such an approach: the
combination of national and non-national regulation; the genuinely administrative
character of the national regulation, and the function of the non-national
regulation as coordinating interstate action; and the use of conventional
intergovernmental measures as the primary source of law. Yet is the public
international law approach fully satisfactory in this context? Would it not be
preferable to analyze this regime instead as a branch of the emergent “global
administrative law”, taking into consideration the essentially unitary character of
that regime; its reliance on sources other than exclusively conventional ones; and
its main function of regulating, by means of administrative tools, the combined
action of a plurality of different public powers, both national and non-national, in
a specific sector of the global legal order?
What would be the distinguishing features of this emerging branch of
global administrative law? The law under examination here reflects a central
element of global administrative law: the establishment of executive processes in
which national administrations and non-national administrations, far from being
separate, engage in a relation of mutual interdependence. But do these executive
processes also display any relevant particularities? What is the relevance, for
example, of the fact that the joint action of national and non-national
194
administrative bodies is achieved through organizational arrangements rather
than procedural mechanisms?
Finally, does this institutional design serve to ensure that the polycentric,
but interconnected, administration responsible for the execution of this operation
will function well and efficiently? Does this design result only from an uneasy
compromise among conflicting exigencies, or might it also serve the ordered
exercise of administrative action, in so far as it can exploit the traditional
advantages of both national and international administrative law (i.e. the
authoritative force of the former and the coordination potentialities of the latter)?
Or does this regulatory scheme also display some shortcomings? For example,
might the retention of national autonomy over tactical command actually weaken
strategic and operational command, or affect its substantive content? And can
one really assume the ability of ultra-state administrative law to effectively fulfil
its organizational function?
5. Similar Cases
Operation Artemis may be usefully compared with other EU military operations,
such as EUFOR – Althea, conducted in Bosnia and Herzegovina, in conformity
with United Nations Security Council Resolution 1551 (2004). It may also be
compared with United Nations peacekeeping operations, such as the UNFICYP
mission in Cyprus, in which the multinational force acts under the authority of
the Security Council.
6. Further Reading
a.
b.
c.
L. BALMOND (ed.), “Chroniques des faits internationaux”, Revue générale de
droit international public 719 (2003);
B. CARRIÓN RAMÍREZ, “Tres operaciones PESD: Bosnia i Herzegovina,
Macedonia y República Democrática de Congo”, Documento de trabajo
del Instituto Universitario de Estudios Europeos, Universidad San Pablo,
n. 3, Madrid, mayo de 2004
(http://www.idee.ceu.es/index.php?item=383&lang=esp);
F. FARIA, “Crisis management in sub-Saharian Africa: The role of the
European Union”, Occasional paper of ISS, n. 51, April 2004, Paris, p. 41
et seq.
(http://www.iss-eu.org);
d.
e.
f.
195
A. MISSIROLI, “The European Union: Just a Regional Peacekeeper?”, 8
European Foreign Affairs Review 493 (2003);
C. NOVI, La politica di sicurezza esterna dell’Unione europea, Padova (2005);
K. VON WOGAU (ed.), The Path to European Defence, Antwerp (2004).
196
VII.D.2 Unilateral and Universalist Pressures, and the Limits of Global
Security: The United Nations, the Occupying Countries, and the
Reconstruction of Iraq
Edoardo Chiti
1. Background
On March 20, 2003, a multinational coalition, made up mainly of US and UK
forces, invaded Iraq and launched Operation Iraqi Freedom. Following the defeat
of the Iraqi forces, the coalition established a transitional government provided
with executive, legislative and judicial powers, the Coalition Provisional
Authority. This opened a new phase of Operation Iraqi Freedom, in which the
coalition sought to promote the political, social and economic development of
the country.
On May 22, 2003, the United Nations Security Council, in Resolution 1483
(2003), recognized “the specific authorities, responsibilities, and obligations
under applicable international law of these states as occupying powers under
unified command”, and laid down a working program for the reconstruction of
the country. On August 14 of the same year, in Resolution 1500 (2003), the
Security Council established a United Nations Assistance Mission for Iraq
(UNAMI) to support the Secretary-General in the fulfilment of his mandate
under resolution 1483. On October 16, in Resolution 1511 (2003), the Security
Council affirmed the sovereignty and territorial integrity of Iraq and emphasized
that the Coalition Provisional Authority’s powers would expire “when an
internationally recognized, representative government established by the people
of Iraq is sworn in and assumes the responsibilities of the Authority”. On June 8,
2004, in Resolution 1546 (2004), the Security Council endorsed the formation of
a sovereign Interim Government of Iraq and, upon its formal request, reaffirmed
the authorization for the multinational force under unified command. On June
28, 2004, the Coalition Provisional Authority transferred national sovereignty to
the Iraqi Interim Government, which began the process towards holding open
elections. In January 2005, direct democratic elections for the Transitional
National Assembly took place. The Transitional National Assembly was called to
draft a constitution, which was subsequently ratified on October 15, 2005. On
December 15, 2005, the first elections for the members of the Iraqi National
Assembly were held. In May 2006, the Government of Iraq succeeded the Iraqi
197
Transitional Government. The UNAMI was maintained even after the
establishment of the new Government of Iraq, in order to support the Iraqi
people and Government, to strengthen institutions for representative
government, to encourage political dialogue and national reconciliation, and to
promote the protection of human rights and judicial and legal reform.
The legal framework was laid down by the provisions of Articles 39-54 of
the Charter of the United Nations and by Security Council Resolutions 1483
(2003), 1500 (2003), 1511 (2003), 1546 (2004), 1551 (2004), 1557 (2004), 1618
(2005), 1619 (2005), 1637 (2005), 1700 (2006), 1723 (2006), 1762 (2007), 1770
(2007), 1790 (2007), 1830 (2008), 1883 (2009), 1936 (2010) and 2001 (2011).
Several actors were involved in this phase of the Iraqi conflict: from the
United Nations, the Security Council, the Secretary-General, the Special
Representative for Iraq appointed by the Secretary-General, and the UNAMI;
many other international bodies were also involved, such as the Development
Fund for Iraq and its the International Advisory and Monitoring Board; coalition
bodies such as the Coalition Provisional Authority and the Multinational Force
operating under unified command; and the transitional Government of Iraq, the
Government of Iraq and the Iraqi people.
2. Materials
-
-
-
United Nations, Situation in Iraq
(http://www.un.org/apps/news/infocusRel.asp?infocusID=50&Body=Ira
q &Body=inspect);
United Nations Assistance Mission for Iraq
(http://www.uniraq.org);
United Nations Security Council Resolution 1483 (2003), 22 May 2003
Element);
United Nations Security Council Resolution 1500 (2003), 14 August 2003
Element);
United Nations Security Council Resolution 1511 (2003), 16 October 2003
198
-
-
-
-
-
Element);
United Nations Security Council Resolution 1546 (2004), 8 June 2004
(http://www.uniraq.org/documents/Resolution1546.pdf);
Element);
United Nations Security Council Resolution 1637 (2005), 8 November
2005
Element);
2006
Element);
Element);
(http://www.uniraq.org/FileLib/misc/Resolution1770.pdf);
United Nations Security Council Resolution 1790 (2007), 18 December
2007
-
199
United Nations Security Council Resolution 2001 (2011), 28 July 2011
(http://www.uniraq.org/FileLib/misc/Resolution2001.pdf).
3. Analysis
The Iraqi transition and its reconstruction after the coalition’s military success in
April 2003 was the subject of several United Nations Security Council
Resolutions.
These Resolutions identify three main objectives of the post-conflict
process, closely connected with and aimed at guaranteeing the “welfare of the
Iraqi people” (Resolution 1483, §4): (i) the restoration of conditions of security
and stability; (ii) the promotion of economic reconstruction, development and
prosperity; and (iii) the establishment of a democratic order. The first two
objectives were laid down by Resolution 1483 (2003), §§4 and 8, and reaffirmed
by several subsequent Resolutions. The objective of a democratic order was
variously articulated as the right of the people of Iraq to a representative and
internationally recognized government, as well as, more generally, the right to
participate in free and fair elections (Resolution 1511, §3); the right of the people
of Iraq freely to determine their own political future and take control of their
own financial and natural resources (Resolution 1511, §3); the recognition of the
independence, sovereignty, unity, and territorial integrity of Iraq (Resolution
1546, Preamble); and respect for the rule of law (Resolution 1546, Preamble).
These Security Council resolutions also conferred the responsibility for the
achievement of the above objectives in the first phase of the transition and
reconstruction process on the Coalition Provisional Authority. The Authority
had to act under the direction and co-ordination of the Secretary-General and the
Special Representative for Iraq, supported by the UNAMI. Thus, the Authority
had to work with the United Nations, to which it was connected through the
organizational relationship envisaged in the Security Council authorizations. In
the second phase of the transition and reconstruction process, some of the
powers initially conferred on the Coalition Provisional Authority were transferred
to the Iraqi Government. The Coalition Provisional Authority had an interim
nature, as it was provided that a representative and internationally recognized
Iraqi Government would assume the Authority’s responsibilities when it had
fulfilled its function. The Government of Iraq was assisted by the UNAMI,
whose mandate was extended several times (most recently on 28 July, 2011, until
July 2012).
200
4. Issues: Unilateral and Universalist Pressures, and the Limits of Global Security
The United Nations Security Council Resolutions exemplify the tension between
the role of the United Nations and the conduct of a coalition of States, as well as
the ambiguities of an intervention which is not just a coercive reaction to an
illegal national act, but also a peacekeeping and nation-building operation.
Looking more closely at this tension, does the conduct of the occupying
forces represent straightforward opposition, gradually developed in the 1990’s, to
the putatively exclusive role of the United Nations in providing military security
to the international community? Or is it a more complex development, at least
partially complementary to the UN’s functional design, to the extent that security
is defined on a global scale and in close connection with the protection of human
rights? And what influence does the United Nations have on the activities of the
coalition? Did the Security Council’s intervention allow the United Nations to
take effective control of the coalition and achieve its objectives? To what extent
does the Security Council intervention reflect the Anglo-American initiative and
to what extent does it express the needs of the UN itself? And what is the
position of the new Government of Iraq vis-à-vis the coalition and the UN?
Turning to the ambiguities of the intervention, what are the limits in
pursuing the goal of global security? Through an increasingly broad interpretation
of the notions of a “threat to the peace, breach of the peace or act of
aggression”, the UN has gradually developed a view of global security not only as
bringing of hostilities between warring parties to an end, but also as
encompassing the pursuit of further goals, in particular the restoration of
international legality and the protection of fundamental rights. Yet does such a
broad purpose include the establishment of a democratic order? Is it possible to
export democracy by means of military force, or must its development be the
result of an internal process? If the former is true, which specific form of
democratic order may be exported by military force? And when may such a goal
be considered achieved?
5. Similar Cases
Operation Iraqi Freedom may be compared to the United Nations Transitional
Administration in East Timor (UNTAET). This mission, launched by the
Security Council in October 1999, established a transitional government to
pursue, even through the use of military force where necessary, political, social
and economic objectives, as well as to facilitate the development of an
201
independent State, which was realized in 2002. Operation Iraqi Freedom may
also be compared to the implementation of the UN Security Council resolutions
on the 2011 Libyan crisis (see § VII.D.3 “Responsibility to Protect, Military
Intervention and Assistance in Rebuilding: The UN and the Libyan Crisis” by E.
Chiti).
6. Further Reading
a.
b.
c.
d.
e.
f.
g.
h.
K. BANNELIER, T. CHRISTAKIS, O. CORTEN, P. KLEIN (eds.), L’intervention
en Iraq et le droit international, Paris (2004);
E. BELLIN, “The Iraqi Intervention and Democracy in Comparative
Historical Perspective”, Political Science Quarterly 595 (2005);
M.J. GLENNON, “Why the Security Council Failed”, 82 ForeignAffairs
(2003);
K.H. KAIKOBAD, “Problems of Belligerent Occupation: The Scope of
Powers Exercised by the Coalition Provisional Authority in Iraq,
April/May 2003 - June 2004”, 54 International and Comparative Law Quarterly
253 (2005);
S.D. MURPHY, “Security Council Recognition of US Post war Role in Iraq”,
97 American Journal of International Law 681 (2003);
E. PAPASTAVRIDIS, “Interpretation of Security Council Resolutions Under
Chapter VII in the Aftermath of the Iraqi Crisis”, 56 International and
Comparative Law Quarterly 83 (2007);
C. QUIDENUS, “The Continued Presence of the Multinational Force on
Iraqi Request”, 10 Austrian Review of International and European Law 147
(2005);
S. WHEATLEY, “The Security Council, Democratic Legitimacy and Regime
Change in Iraq”, 17 European Journal of International Law 531 (2006).
202
VII.D.3 Responsibility to Protect, Military Intervention and Assistance in
Rebuilding: The UN and the Libyan Crisis
Edoardo Chiti
1. Background
Protests against the Qaddafi regime erupted in Benghazi and other cities on
February 15, 2011. They were repressed by security forces with heavy weapons,
and the Libyan government incited supporters to commit acts of violence against
demonstrators. Protests became fights, and several barracks and supply-points
along the eastern coast fell to the opposition. Rebels claimed to be part of a
countrywide liberation movement, rather than a separatist movement, and
created a National Transitional Council. As Qaddafi’s forces increasingly targeted
civilians, the Arab League, the African Union, and the Secretary General of the
Organization of the Islamic Conference condemned the serious violations of
human rights and international humanitarian law that were being committed in
the Libyan Arab Jamahiriya. On February 26, 2011, the United Nations Security
Council, in Resolution 1970 (2011), recalled “the Libyan authorities’
responsibility to protect its population” and decided to refer the situation in the
Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the
International Criminal Court.
On March 12, 2011, the Council of the League of Arab States decided to
call for the imposition of a no-fly zone on Libyan military aviation and to
establish safe areas in places exposed to shelling as a precautionary measure
allowing the protection of civilians. On May 17, the United Nations Security
Council, in Resolution 1973 (2011), established a “ban on all flights in the
airspace of the Libyan Arab Jamahiriya in order to help protect civilians”, and
authorized Member States that had notified the Secretary-General and the
Secretary-General of the League of Arab States, acting nationally or through
regional organizations or arrangements, to take “all necessary measures” to
enforce compliance with the ban on flights. The bombing campaign started two
days after the Resolution as an international military operation under US
command, and continued afterwards under NATO command as Operation
Unified Protector.
After around a six-month struggle, rebels seized power and entered Tripoli.
On September 16, 2011, the United Nations Security Council, in Resolution 2009
203
(2011), emphasised the need for the transitional period to be underpinned by “a
commitment to democracy, good governance, rule of law and respect for human
rights”, and established a United Nations Support Mission in Libya (UNSMIL) to
support the National Transitional Council in its efforts to promote unity, national
reconciliation and justice. On October 27, 2011, after the demise of Muammar
Qaddafi and the National Transitional Council’s “Declaration of Liberation” of
23 October, the United Nations Security Council, in Resolution 2016 (2011),
brought to an end the imposition of the no-fly zone on Libyan military aviation.
The relevant legal framework was laid down by the provisions of Articles
39-54 of the Charter of the United Nations and by Security Council Resolutions
1970 (2011), 1973 (2011), 2009 (2011) and 2016 (2011).
2. Materials
-
-
-
-
United Nations Support Mission in Lybia
(http://unsmil.unmissions.org/);
International Commission on Intervention and State Responsibility, The
Responsibility to protect, December 2001
(http://responsibilitytoprotect.org/ICISS%20Report.pdf);
United Nations Security Council Resolution 1970 (2011), 26 February 2011
Element);
United Nations Security Council Resolution 1973 (2011), 17 March 2011
Element);
United Nations Security Council Resolution 2009 (2011), 16 September
2011
Element);
Element).
204
3. Analysis
The Libyan crisis was the subject of several United Nations Security Council
Resolutions. These Resolutions identified two main objectives of the UN
intervention: (i) to protect the civilian population from the “widespread and
systematic attacks” by the authorities of the Qaddafi regime in the Libyan Arab
Jamahiriya, (ii) and to lead the effort of the international community in
supporting the Libyan-led transition and rebuilding process aimed at establishing
a democratic, independent and united Libya.
These two objectives gave rise to different institutional constructions and
involved different actors.
The first objective was based on the fundamental assumption that the
Libyan authorities bore the responsibility to protect the Libyan population, and
that parties to armed conflicts should take all feasible steps to ensure that
civilians are adequately protected. Moreover, the Security Council considered that
the attacks by Libyan authorities against the civilian population could amount to
crimes against humanity. In order to protect the civilian population, the Security
Council, in Resolution 1973 (2011), established a complex legal framework. First,
it authorized Member States, “acting nationally or through regional organizations
or arrangements, and acting in cooperation with the Secretary-General, to take all
necessary measures to protect civilians and civilian populated areas under threat
of attack in the Libyan Arab Jamahiriya”, while refusing to permit a foreign
occupation force of any form on any part of Libyan territory. Member States of
the League of Arab States were formally requested to cooperate with other
Member States in the implementation of this task. Second, the Security Council
considered that the establishment of a ban on all flights in the airspace of the
Libyan Arab Jamahiriya constituted “an important element for the protection of
civilians as well as the safety of the delivery of humanitarian assistance and a
decisive step for the cessation of hostilities in Libya”. It therefore established
such a zone and again authorized Member States, “acting nationally or through
regional organizations or arrangements, to take all necessary measures” to
enforce compliance. The primary actors in this UN intervention were the US ledinternational military coalition, NATO, the UN Secretary-General, the League of
Arab States, the Libyan official authorities and the Libyan civilian population.
The second objective was identified only after the demise of the Qaddafi
regime. It was intended to support “a future for Libya based on national
reconciliation, justice, respect for human rights and the rule of law” (Resolution
2016, Preamble). And it led to the establishment of an UN mission – the
UNSMIL – tasked with supporting Libyan national efforts to restore public
205
security, promote national reconciliation, embark upon the constitution-building
and electoral process, extend state authority, protect human rights, and initiate
economic recovery. The actors involved in this phase of the UN intervention
were the UN mission, the Member States participating in the Mission, the Special
Representative of the Secretary- General, the National Transitional Council and
the new Libyan authorities.
4. Issues: The Legal Foundation of Military Intervention, and the Limits of Assistance in
Rebuilding
The United Nations Security Council Resolutions on the Libyan crisis raise two
uneasy issues, one related to the legal foundation of the military intervention
through which the Qaddafi’s regime was prevented from committing mass
atrocities in Libya, the other concerning the process of rebuilding after the
demise of Qaddafi.
With regard to the first, can the United Nations Security Council authorize
military intervention for the purposes of human protection, in accordance with
the concept of a “responsibility to protect”? This idea emerged in the 2001
Report of the International Commission on Intervention and State
Responsibility. Following that source, it is usually articulated in two main
doctrines: (i) “State sovereignty implies responsibility, and the primary
responsibility for the protection of its people lies with the state itself”; (ii) “where
a population is suffering serious harm, as a result of internal war, insurgency,
repression or state failure, and the state in question is unwilling or unable to halt
or avert it, the principle of non-intervention yields to the international
responsibility to protect”. Yet, what are the foundations of the responsibility to
protect? Under what conditions can the United Nations Security Council rely on
this responsibility as the basis for military intervention? And what are the precise
boundaries of the concept? For example, does it seek to ensure simply the
protection of civilians and the safe delivery of humanitarian assistance? Or does it
also include the training and arming of rebels? Is it limited to reaction or does it
imply the proactive and preventive protection of civilians under threat of attack?
And what institutions have the supervisory powers to ensure that military means
are actually used within these limits, whatever they may be?
In terms of the second issue, closely related to the first, does the
responsibility to protect also include a responsibility to provide, in the aftermath
of military intervention, support and assistance with recovery, reconstruction and
reconciliation? If so, might such a responsibility to rebuild imply a specific
commitment to establish an inclusive political dialogue and to embark upon a
206
constitution-building and electoral process? Is such intervention intended purely
to support the new national authorities? Or is instead intended to orient the new
national authorities towards the setting up of a democratic system? And when
may the goal of the establishment of a new political order be considered
achieved?
5. Similar Cases
The UN management of the Libyan crisis may be compared to Operation Iraqi
Freedom, both in terms of the legal foundation of military intervention and for
the objectives and features of assistance in rebuilding after following such
intervention (on this second aspect, see § VII.D.2 “Unilateral and Universalist
Pressures, and the Limits of Global Security: The United Nations, the Occupying
Countries, and the Reconstruction of Iraq” by E. Chiti).
6. Further Reading
a.
b.
c.
d.
A.J. BELLAMY, Responsibility to Protect: The Global Effort to End Mass Atrocities,
Cambridge (2009);
P. PICONE, “Considerazioni sulla natura della risoluzione del Consiglio di
sicurezza a favore di un intervento ‘umanitario’ in Libia”, 5 Diritti Umani e
Diritto Internazionale 213 (2011);
N. RONZITTI, “Quale legittimità per le operazioni Nato e italiane in
Libia?”, Affari internazionali, September 2011
(http://www.affarinternazionali.it/articolo.asp?ID=1859);
M. MANCINI, Report of the Conference “New Conflicts and the Challenge of the
Protection of the Civilian Population”, Istituto Affari Internazionali, Documento
IAI 11/03, 2001
(http://www.iai.it/pdf/DocIAI/iai1103.pdf).
207
VII.D.4 The Composite Regulation of Global Security Operations: The
Case of the European Union’s Operation Atalanta
Edoardo Chiti
1. Background
Since the early 21st century, violent acts of piracy and armed robbery against
vessels have been taking place on the high seas off the coast of Somalia.
Incidents have included attacks upon and hijackings of commercial vessels and
vessels operated by the World Food Program. They have endangered vessels,
crew, passengers and cargo, precluded the safe delivery of humanitarian
assistance to the people of Somalia, and exacerbated the civil war in that country.
In 2005, the International Maritime Organization (IMO) provided evidence of
ongoing piracy and armed robbery. In 2007, it strongly urged Governments to
increase their efforts to prevent and repress, within the limits of international law,
acts of piracy and armed robbery against vessels irrespective of where such acts
occur.
In response to the crisis and given the lack of capacity of the Transitional
Federal Government of Somalia (TFG) to deal with the pirates and to secure
Somalia’s territorial waters, the United Nations Security Council, acting under
Chapter VII of the Charter of the United Nations, adopted Resolution 1816 on
June 2, 2008. This resolution encouraged States interested in the use of
commercial maritime routes off the coast of Somalia to increase and coordinate
their efforts, in cooperation with the TFG, to deter acts of piracy and armed
robbery at sea. Moreover, it authorised States cooperating with the TFG “to
enter the territorial waters of Somalia for the purpose of repressing acts of piracy
and armed robbery at sea and to use, in a manner consistent with relevant
international law, all necessary means to repress acts of piracy and armed robbery
at sea”. These authorizations were renewed in several subsequent Resolutions,
and were complemented by efforts to establish a comprehensive response to the
problem piracy, including measures to promote the investigation and punishment
of those who illicitly finance, plan, organize, or unlawfully profit from pirate
attacks.
The various Security Council Resolutions were followed by a number of
initiatives carried out by individual countries, such as China, India, the Islamic
Republic of Iran, Japan, Malaysia, the Republic of Korea, the Russian Federation,
208
Saudi Arabia, and Yemen. With regard to the European Union (EU), on
December 8, 2008, the Council decided to contribute to the implementation of
the relevant Security Council Resolutions by establishing a Operation Atalanta.
Atalanta, the first EU naval operation, was launched within the framework of the
European Security and Defence Policy (ESDP). It was scheduled for an initial
period of twelve months, until 13 December 2009, and then extended by Council
Decision 2010/766/CFSP of 7 December 2010 until December 2012.
Participation of non-EU Member States such as Croatia, Montenegro, Norway
and Ukraine was welcomed, and several cooperative arrangements were
established with other naval forces deployed in the region, such as NATO and
units from China, India, Russia and other countries. The funding of Operation
Atalanta amounted to EUR 8.4 million for 2010 and EUR 8.05 million for 2011.
The legal framework was laid down by a wide range of provisions and
measures: Articles 39-54 of the Charter of the United Nations; several Security
Council Resolutions, in particular Resolutions 1814 (2008), 1816 (2008) and 1838
(2008); Articles 23-46 of the Treaty on European Union; and the EU measures
establishing and regulating Operation Atalanta, such as Council Decision
2008/918/CFSP of 8 December 2008, Council Decision 2010/766/CFSP of 7
December 2010, and Political and Security Committee Decision Atalanta/1/2010
of 5 March 2010.
Several actors were involved in the operation: the Security Council and the
Secretary-General of the United Nations; the EU institutions and bodies
competent in the field of ESDP, such as the Council, the Political and Security
Committee and the Military Committee; the EU bodies set up specifically in
connection with Operation Atalanta, such as the Operation Commander; the
governments and military administrations of the EU Member States as well as
those of the third countries participating in the operation; and, lastly, the Somali
TFG.
2. Materials
-
-
Treaty on the European Union, Articles 23-46
N:PDF);
(http://www.consilium.europa.eu/uedocs/cmsUpload/N0836177.pdf);
-
-
-
-
-
-
209
United Nations Security Council Resolution 1846 (2008), 2 December 2008
United Nations Security Council Resolution 1851 (2008), 16 December
2008
United Nations Security Council Resolution 1863 (2009), 16 January 2009
2009
Element);
United Nations Security Council Resolution 1918 (2010), 27 April 2010
Element);
2010
Element);
United Nations Security Council Resolution 1976 (2011), 11 April 2011
Element);
Council Joint Action 2008/749/CFSP of 19 September 2008 on the
European Union military coordination action in support of UN Security
Council resolution 1816 (2008) (EU NAVCO), in OJEU 2008 L 252
N:PDF);
Council Joint Action 2008/851/CFSP of 10 November 2008 on a
European Union military operation to contribute to the deterrence,
prevention and repression of acts of piracy and armed robbery off the
Somali coast, in OJEU 2008 L 301
N:PDF);
210
-
-
-
-
-
-
Council Decision 2008/918/CFSP of 8 December 2008 on the launch of a
Somali coast (Atalanta), in OJEU 2008 L 330
N:PDF);
Council Decision 2009/29/CFSP of 22 December 2008 concerning the
conclusion of the Agreement between the European Union and the Somali
Republic on the status of the European Union-led naval force in the
Somali Republic in the framework of the EU military operation Atalanta, in
OJEU 2009 L 10
N:PDF);
Political and Security Committee Decision Atalanta/2/2009 of 21 April
2009 on the acceptance of third States' contributions to the European
Union military operation to contribute to the deterrence, prevention and
repression of acts of piracy and armed robbery off the Somali coast
(Atalanta), in OJEU 2009 L 109
N:PDF);
Political and Security Committee Decision ATALANTA/3/2009 of 21
April 2009 on the setting up of the Committee of Contributors for the
N:PDF);
Commission recommendation of 11 March 2010 on measures for selfprotection and the prevention of piracy and armed robbery against ships, in
OJEU 2010 L 67
N:PDF);
March 2010 amending Political and Security Committee Decision
ATALANTA/2/2009 on the acceptance of third States’ contributions to
-
-
-
211
the European Union military operation to contribute to the deterrence,
Somali coast (Atalanta) and Political and Security Committee Decision
ATALANTA/3/2009 on the setting up of the Committee of Contributors
for the European Union military operation to contribute to the deterrence,
N:PDF);
Council Decision 2010/766/CFSP of 7 December 2010 amending Joint
Action 2008/851/CFSP on a European Union military operation to
contribute to the deterrence, prevention and repression of acts of piracy
and armed robbery off the Somali coast, in OJEU 2010 L 327
N:PDF);
June 2011 on the appointment of an EU Operation Commander for the
N:PDF).
Communication from the Commission to the Council and the European
Parliament, The European Union and the United Nations: The Choice of
Multilateralism,
COM
(2003)
526
(http://ec.europa.eu/external_relations/un/docs/com03_526en.pdf).
3. Analysis
The law governing Operation Atalanta stems from the combination of a number
of different UN, EU and national decisions.
UN law provides the general framework of the operation. Security Council
Resolutions 1814 (2008), 1816 (2008) and 1838 (2008) authorize States
cooperating with the TFG to enter the territorial waters of Somalia for the
purpose of repressing acts of piracy and armed robbery at sea and to use, in a
manner consistent with relevant international law, all necessary means to achieve
212
that goal; they assign the political responsibility for the exercise of such authority
to the Security Council, to be assisted by the Secretary-General; and they
welcome the decision taken by the EU on 10 November 2008 to launch a naval
operation to protect maritime convoys bringing humanitarian assistance to
Somalia, and other vulnerable ships, and to repress acts of piracy and armed
robbery at sea off the coast of Somalia.
The EU regulations set forth the details of Operation Atalanta, governing
the organization and functioning of the relevant EU bodies and national armed
forces. The management of the operation is structured around the establishment
of hierarchical relationships between the various levels of command, from the
bodies responsible for the political and strategic assessment (the Council, the
High Representative of the Union for Foreign Affairs and Security Policy, and
the EU Political and Security Committee, assisted by the EU Military Committee
and the EU Military Staff) to the offices responsible for the technical and
operative command (the Commander of the Operation and the Commander of
the naval force). The Commander of the Operation and the Commander of the
naval force head a multinational force made up of all the Member States that
have agreed to contribute and of third countries invited to participate in the
Operation. The force’s concrete functioning is regulated by several measures,
such as the “operation plan” and “the rules of engagement”, mainly adopted by
the Council and the EU Political and Security Committee.
National law, by contrast, regulates the service relationship between
military staff and national administrations. EU law gives EU commanders general
powers concerning operational and tactical command and control (i.e. the powers
to carry out the operation). Yet, within the command and control chain, national
commanders’ retain responsibility for, for example, the exercise of disciplinary
powers, and other aspects of the soldiers’ service relationship.
Thus, EU administrative regulation “leans” on national law. The latter
constitutes the only source of regulation of the authoritative powers of national
administrations that participate in the Operation. But the exercise of the
authoritative powers of national administrations takes place within the context of
a regulatory scheme that is defined, at least in its general contours, by EU
regulation. In structural terms, the emerging framework may be characterized as a
“binary” regime, in which shared norms, established by EU regulation, coexists
with particular differences, characterized by the variety of national regimes. This
overall design, however, is complicated by the circumstance that EU
administrative law in this context is itself framed by UN Resolutions.
213
4. Issues: The Regulation of Operation Atalanta between Traditional Public International
Law and Global Administrative Law
The underlying issue is the relationship between national administrative law and
administrative law beyond the State in an area of the global legal space that had
traditionally been reserved to State action.
Considered as a whole, it would be possible to analyse the regulatory
framework governing Operation Atalanta and resulting from the interconnection
between non-State lawmakers, and between them and national lawmakers, simply
using the traditional interpretative schemes of public international law. Indeed,
several features of this Operation might seem to suggest that this would be
appropriate: the combination of national and non-national regulation; the
genuinely administrative character of the national regulation, and the function of
the non-national regulation as coordinating interstate action; and the use of
conventional intergovernmental measures as the primary source of law. Yet is the
public international law approach fully satisfactory in this context? Would it not
be preferable to analyze this regime instead as a branch of “global administrative
law”, taking into consideration the essentially unitary character of that regime; its
reliance on sources other than exclusively conventional ones; and its main
function of regulating, by means of administrative tools, the combined action of
a plurality of different public powers, both national and non-national, in a
specific sector of the global legal space?
If so, what would be the distinguishing features of this emerging branch of
global administrative law? The Operation under examination here reflects a
central element of global administrative law: the establishment of executive
processes in which national administrations and non-national administrations, far
from being separate, engage in a relation of mutual interdependence. But do
these executive processes also display any relevant particularities? What is the
relevance, for example, of the fact that the joint action of national and nonnational administrations is achieved through organizational arrangements rather
than procedural mechanisms?
Finally, does this institutional design serve to ensure that the polycentric,
but interconnected, administration responsible for the execution of this
Operation will function well and efficiently? Does this design result only from an
uneasy compromise among conflicting exigencies, or might it also serve the
ordered exercise of administrative action, in so far as it can exploit the traditional
advantages of both national and international administrative law (i.e. the
authoritative force of the former and the coordination potentialities of the latter)?
Or are there also some shortcomings to this regulatory scheme?
214
5. Similar Cases
Operation Atalanta may be usefully compared with other EU military operations,
such as EUFOR – Althea, conducted in Bosnia and Herzegovina underUnited
Nations Security Council Resolution 1551 (2004), and Operation Artemis, carried
out in the Democratic Republic of Congo in accordance with the mandate set out
in United Nations Security Council Resolution 1484 (2003). Operation Atalanta
may also be compared with United Nations peacekeeping operations, such as the
UNFICYP mission in Cyprus, in which the multinational force acts under the
authority of the Security Council.
6. Further Reading
a.
b.
c.
d.
e.
f.
G. GREVI, D. HELLY, D. KEOHANE (eds.), European Security and Defense
Policy: The First Ten Years (1999-2009), EU Institute for Security Studies,
2009
(http://ddata.over-blog.com/xxxyyy/2/48/17/48/Fichierspdf/Europe/ESDP_10-web.pdf);
S.J. HANSEN, “Piracy in the Greater Gulf of Aden :Myths, Misconception
and Remedies”, Norwegian Institute for Urban and Regional Research
Report 2009:29
(http://www.nibr.no/uploads/publications/26b0226ad4177819779c2805e
91c670d.pdf);
J. HOWORTH, Security and Defence Policy in the European Union, New York
(2007);
A. MISSIROLI, “The European Union: Just a Regional Peacekeeper?”, 8
European Foreign Affairs Review 493 (2003);
C. NOVI, La politica di sicurezza esterna dell’Unione europea, Padova (2005);
K. VONWOGAU (ed.),The Path to European Defence, Antwerp (2004).
215
VII.D.5 Human Rights and Terrorism: The Use of Passenger Name
Records
Maria Tzanou
1. Background: EU Airlines between a Rock and a Hard Place
In the aftermath of the September 11 terrorist attacks in 2001, the US
Government adopted legislation requiring airlines flying into US territory to
transfer to designated US authorities data relating to passengers and cabin crew,
contained in the so-called “Passenger Name Record” (PNR).
A PNR is a computerized “record of each passenger's travel requirements
which contains all information necessary to enable reservations to be processed
and controlled by the airlines”. PNR data sets may be composed with as many as
60 data fields, including name, address, e-mail, contact telephone numbers,
passport information, date of reservation, date of travel, travel itinerary, all forms
of payment information, billing address, frequent flyer information, travel agency
and travel agent, travel status of passenger (such as confirmations and check-in
status), ticketing field information (including ticket number, one-way tickets and
Automated Ticket Fare Quote), date of issuance, seat number, seat information,
general remarks, no show history, baggage information, go show information,
OSI (Other Service-related Information), and SSI/SSR (Special Service
Information/Special Service Requests) A PNR can also contain information on
individuals who are not travelling by air, such as, for instance, the details (e-mail
address, telephone number) for a contact person (e.g. a friend or a family
member). PNR data may reveal religious or ethnic information (for example from
the meal preferences of the passenger), affiliation to a particular group, as well as
medical data (for example medical assistance required by the passenger, or any
disabilities or health problems that are made known to the airline). According to
the relevant US legislation, the purpose for collecting the data was to identify
individuals who may pose a threat to aviation safety or national security. Air
carriers’ failure to forward the information required or forwarding incorrect or
incomplete information was punishable with loss of landing rights and the
payment of a fine of up to $6000 per passenger whose data had not been
appropriately transmitted.
On the other side of the Atlantic, European airlines had to face EU data
protection legislation, and in particular Article 25(1) of the Data Protection
216
Directive which, in principle, prohibits the transfer of personal data to third
countries that do not ensure an “adequate level of protection”. European airline
companies were, thus, caught between “a rock” (if they followed Community
law, they were liable to US sanctions) and “a hard place” (if they gave in to the
US authorities’ demands, they fell foul of EU data protection requirements), and
the European Commission had to enter the scene.
The Commission and the US administration entered into negotiations to
reach a compromise, and on 14 May 2004 a decision, on the basis of Article 25(6)
of the Data Protection Directive, confirming the adequate protection of personal
data contained in the Passenger Name Record of air passengers transferred to the
United States’ Bureau of Customs and Border Protection. Upon the
Commission’s decision on the adequacy of the protection of personal data in the
US, the Council adopted, on 17 May 2004, a decision authorising the conclusion
of an agreement between the EC and the US on the transfer of PNR data by air
carriers to the US Department of Homeland Security (DHS), Bureau of Customs
and Border Protection (CBP). The Agreement was concluded on 28 May 2004
and entered into force the same day. The Commission’s adequacy decision was
based on forty-eight CBP Undertakings, annexed to it, that set out how the US
authorities would use the PNR data. In particular, the Undertakings, in
Commission’s words, “represent a serious and well considered political
commitment on the part of the DHS” and include provisions of substantial
nature that regulate in essence the details of the DHS data processing.
2. Materials
PNR I Documents:
-
-
Commission Decision 2004/535/EC of 14 May 2004 on the adequate
protection of personal data contained in the Passenger Name Record of air
passengers transferred to the United States’ Bureau of Customs and Border
Protection (notified under document number C(2004) 1914),
OJ L 235 , 06/07/2004, 11
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004D0535:EN:
HTML);
Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an
Agreement between the European Community and the United States of
America on the processing and transfer of PNR data by Air Carriers to the
217
United States Department of Homeland Security, Bureau of Customs and
Border Protection, OJ L 183, 20/05/2004, 83
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004D0496:EN:
HTML).
ECJ case-law:
-
Joined Cases C-317/04 and C-318/04, European Parliament v. Council and
Commission (PNR), Judgment of the Grand Chamber of 30 May 2006,
[2006] ECR I-4721.
TML).
Provisional PNR Documents:
-
-
-
Letter to the Council Presidency and the Commission from the
Department of Homeland Security (DHS) of the United States of America,
concerning the interpretation of certain provisions of the undertakings
issued by DHS on 11 May 2004 in connection with the transfer by air
carriers of PNR data, (2006/C 259/01), OJ C 259/1 of 27/10/2006.
N:PDF);
Council decision 2006/729/CFSP/JHA of 16 October 2006 on the
signing, on behalf of the European Union, of an Agreement between the
European Union and the United States of America on the processing and
transfer of passenger name record (PNR) data by air carriers to the United
States Department of Homeland Security
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:298:0027:01:EN:
HTML);
Agreement between the European Union and the United States of America
on the processing and transfer of passenger name record (PNR) data by air
carriers to the United States Department of Homeland Security, signed 16
October 2006
N:PDF).
218
PNR II Documents:
-
-
EP Resolution of 12 July 2007 on the PNR Agreement with the US
P6_TA-PROV(2007)0347
(http://www.statewatch.org/news/2007/jul/ep-pnr-resolution-jul-07.pdf);
Council decision 2007/551/CFSP/JHA of 23 July 2007 on the signing, on
behalf of the European Union, of an Agreement between the European
Union and the United States of America on the processing and transfer of
Passenger Name Record (PNR) data by air carriers to the United States
Department of Homeland Security (DHS) (2007 PNR Agreement), OJ L
204/16 of 4.8.2007
N:PDF);
on the processing and transfer of Passenger Name Record (PNR) data by
air carriers to the United States Department of Homeland Security (DHS)
(2007 PNR Agreement), OJ L 204/18 of 4.8.2007
N:PDF).
3. Analysis
3.1.
The ECJ PNR judgment and the 2006 Interim PNR Agreement
On 27 July 2004, the European Parliament filed an action of annulment of the
Commission’s adequacy decision (Case C-318/04), and of the Council’s decision
on the conclusion of the Agreement (Case C-317/04) based, inter alia, on the
allegation that they infringed fundamental rights, and in particular the right to
privacy.
The ECJ delivered its judgment in the PNR case on 30 May 2006. Instead of
engaging in an assessment of the rights to privacy and data protection, the Court
decided to examine another claim of the Parliament alleging that the legal basis
used by the Commission and the Council was incorrect. With rather uninspired
reasoning, the Court found that the Commission’s adequacy decision was not
219
adopted on the correct legal basis, because the transfer of PNR data to CBP did
not constitute processing necessary for a supply of services, but data processing
regarded as necessary for safeguarding public security and for law-enforcement
purposes, and therefore did not fall within the scope of the Data Protection
Directive, pursuant to Article 3(2).
The ECJ reached the same conclusion concerning the Council’s decision.
Exercising remarkable verbal economy, it decided that Article 95 EC could not
justify Community competence to conclude the Agreement, because this related
to “the same transfer of data as the decision on adequacy and therefore to data
processing operations which [...] are excluded from the scope of the Directive.”
The ECJ therefore annulled both the Commission’s adequacy decision and the
Council’s decision on the conclusion of the Agreement.
The decision of the Court has been characterised as a “Pyrrhic victory” for
the European Parliament. The annulment of the Community instruments as a
basis for the PNR transfer meant that the Agreement had to be renegotiated
within the framework of the (former) third pillar, with all of the consequences
that entailed, including the much more limited role for the European Parliament
itself.
Following the Court of Justice decision, the Council and Commission had
only one course of action available to them: the denunciation of the 2004
Agreement. Indeed, on 3 July 2006, the Council and the Commission notified the
US government that the PNR Agreement had to be terminated with effect from
30 September 2006, and on 27 June 2006, the EU entered a second round of
negotiations with the US administration to conclude a new provisional PNR
Agreement, this time under the (former) third pillar The Agreement was signed
on behalf of the US at Washington DC on 19 October 2006. It would remain
into force until 31 July 2007.
The 2006 Interim Agreement comprises seven points, and would have
appeared to add little to its 2004 predecessor had it not been for Point 1, which
stated: “In reliance upon DHS’s continued implementation of the
aforementioned Undertakings as interpreted in the light of subsequent events, the
European Union shall ensure that air carriers operating passenger flights in
foreign air transportation to or from the United States of America process PNR
data contained in their reservation systems as required by DHS.” The phrase “as
interpreted in the light of subsequent events” refers to the letter sent by Stewart
Baker, Assistant Secretary for Policy at the DHS, to the Presidency and the
Commission “concerning the interpretation of certain provisions of the
undertakings issued by DHS on 11 May 2004 in connection with the transfer by
air carriers of PNR data (the “Baker letter”). The letter is intended to set forth
the US administration’s “understandings with regard to the interpretation of a
220
number of provisions” of the 2004 PNR Undertakings, since, according to the
US administration “things have changed in Washington in the last couple of
years.” The Baker letter in essence introduced a number of unilateral changes to
the 2004 Undertakings, which meant that the commitments of the United States
under the Interim Agreement are markedly different from those under the 2004
Agreement.
3.2. The 2007 PNR Agreement
With the Interim PNR Agreement due to expire on 31st July 2007, the EU had to
start a new round of negotiations with the United States for a new and this time
more permanent agreement. The new Agreement was signed on 23 July 2007.
Following the general pattern of the previous PNR Agreements, the 2007
Agreement is not contained in a single document. In the words of Commissioner
Franco Frattini, “the agreement is divided into three parts. First, an agreement
signed by both parties. Second, a letter which the United States sent to the EU in
which it set out assurances on the way in which it will handle European PNR
data in the future. And third, a letter from the EU to the United States
acknowledging the receipt of assurances and confirming that on that basis it
considers the level of protection afforded by the US Department of Homeland
Security to be adequate for European PNR data.” This form, while not new in
the PNR context (see, e.g. the letter of Undertakings in the first PNR, and the
Baker letter in the Interim PNR Agreement), raises concerns, especially with
regard to the legal nature of the DHS letter, and its relationship with the
Agreement.
In terms of substance, the 2007 Agreement seems imbalanced; obligations
are imposed on the EU side only; the US authorities provide mere “assurances”
on the use of the data. The DHS letter, which is “intended to explain how the
United States Department of Homeland Security handles the collection, use and
storage of PNR”, constitutes the most important part of the 2007 Agreement.
The EU’s reply to the DHS letter forms part of the 2007 Agreement, but
does not itself add anything of substance. It merely notes that “the assurances
explained in [the DHS] letter allow the European Union to deem [...] that DHS
ensures an adequate level of data protection.” The same verbal economy applies
to the agreement, which contains only nine Articles.
From a fundamental rights’ point of view, the 2007 PNR Agreement could
not be more disappointing. It has markedly weakened the safeguards provided
for under its predecessors, which were already considered weak themselves, and
contains too many emergency exceptions and other shortcomings.
221
4. Issues
The EU-US PNR saga is fraught with conflicts: security versus privacy, US antiterrorist legislation versus EU data protection law, EU versus US legal privacy
regimes, European Parliament versus Council and Commission, the “commercial
processing” of data versus “law enforcement processing”, data protection versus
data mining.
The present case gives rise to a number of different legal issues. A first
valuable point that arises from the observation of the three – until now – EU-US
PNR Agreements is that they all display an asymmetry of power or some form of
“unilateralism”. It is evident that neither of the Agreements refers to the
exchange of PNR data between the EU and the US; instead, they all aim to
regulate somehow the one-way access by US government agencies to European
data. This problem is further mirrored in the drafting of the Agreements: the EU
is always bound by the obligation to transfer the relevant data to the US
Department of Homeland Security, the US, on the other hand, merely provides
“undertakings”, or “assurances” on elements of its processing. This means that
obligations are not equally binding between the two parties. The extent to which
such an arrangement can be characterised as an international agreement therefore
remains questionable.
A second important issue concerns the substantive data protection
provisions of the PNR. It is quite surprising that those become weaker with each
Agreement, with the 2007 Agreement appearing the most problematic of all. This
is for instance seen in the period of data retention, which rises from 3.5 years in
the first PNR Agreement to 15 years in the 2007 one. Other EU fundamental fair
information principles, such as the purpose limitation principle, are clearly
disregarded. Data initially collected for commercial purposes, namely the
purchase of the ticket, are used for wholly different purposes in order to fight
terrorism. What is most concerning, though, is that PNRs are used pro-actively
to “identify individuals of interest who are planning to travel to the United
States.” This means that PNR data is mainly used for trend analysis and creation
of fact-based travel and general behaviour patterns, through profiling and
datamining. The effectiveness of such methods has been seriously questioned in
the US, and their implications for fundamental rights are far from minimal. Why,
therefore, are the US authorities still insisting on their use? Why does the EU
want to establish its own PNR system if the effectiveness and the necessity of
such a programme is far from proven?
222
Furthermore, within the EU, the use of PNR data has been the object (and
the victim) of inter-institutional and inter-pillar litigation. The ECJ’s PNR
judgment has been criticized for creating new problems instead of solving them:
problems for the EU’s external relations, as the judgment and the cross-pillar
conflicts affected the coherence of the EU’s policy in its international relations;
problems from the point of view of fundamental rights, as not only the question
of their potential violation remained unanswered by the Court, but also their
protection in the new Agreement was significantly weakened; and finally,
problems also for security, according to allegations from the other side of the
Atlantic, as the United States would lack an important tool in combating crime
and terrorism. Is the EU pillar architecture ultimately to be blamed for such a
bad judgment? Would the new situation under the Lisbon Treaty make a
difference? The answer to this question is not as straightforward as it seems.
While the Lisbon Treaty introduced developments with the abolition of the pillar
structure, the applicable data protection legal framework would probably remain
the same.
Finally, even after the Lisbon Treaty, the PNR saga is far from resolved. Not
only does a new Agreement with the EU have to be negotiated, but the EU is
aspiring to develop its own PNR system. This is somewhat puzzling, taking into
account the EU criticisms when the system was initiated by the US.
Unfortunately, it seems that “spillovers of security” are here to stay, even for
highly controversial measures.
5. Further Reading
a. F. BIGNAMI, “European versus American Liberty: A Comparative Privacy
Analysis of Antiterrorism Data Mining”, 48 Boston College Law Review 609
(2007);
b. E. DE BUSSER, “EU data protection in transatlantic cooperation in
criminal matters: Will the EU be serving its citizens an American meal?”,
6 Utrecht Law Review 86 (2010);
c. E. GUILD, E. BROUWER, “The Political Life of Data: The ECJ Decision
on the PNR Agreement between the EU and the US”, CEPS Policy Brief
No. 109 (2006);
d. I. NTOUVAS, “Air Passenger Data Transfer to the USA: the Decision of
the ECJ and latest developments”, 16 International Journal of Law and
Information Technology 73 (2007);
223
e. M. NINO, “The protection of personal data in the fight against terrorism.
New perspectives of PNR European Union instruments in the light of
the Treaty of Lisbon”, 6 Utrecht Law Review 62 (2010);
f. M. OZCAN, F. YILMAZ, “Pendulum Swings in between Civil Rights and
Security: EU Policies against Terrorism in the Light of the PNR Case”, 1
USAK Y.B. Int'l Pol. & L. 51 (2008);
g. V. PAPAKONSTANTINOU, P. DE HERT, “The protection of personal data
in the fight against terrorism: New perspectives of PNR European Union
instruments in the light of the Treaty of Lisbon”, 46 CMLR 885 (2009);
h. R. RASMUSSEN, “Is International Travel per se Suspicion of Terrorism?
The Dispute between the United States and European Union over
Passenger Name Record Data Transfers”, 26 Wis. Int'l L.J. 551 (2009);
i. J. RIJPMA, G. GILMORE, “Joined Cases C-317/04 and C-318/04,
European Parliament v. Council and Commission, Judgment of the
Grand Chamber of 30 May 2006, [2006] ECR I-4721”, 44 CMLR 1081
(2007);
j. A. RIZER, “Dog Fight: Did the International Battle over Airline
Passenger Name Records Enable the Christmas-Day Bomber?”, 60 Cath.
U. L. Rev. 77 (2010).
224
VII.D.6 Privacy and EU Counter-Terrorism Policy (European Data
Protection Supervisor Opinion no. 2011/C 56/02)
Patrizio Rubechini
1.
Background
Terrorism and terrorists represent, on one hand, a significant and actual threat
for the European Union, in particular since 9/11 in the US and the attacks in
Madrid and London; and, on the other hand, a phenomenon that is constantly
monitored and studied by the European institutions in order to prepare initiatives
and strategies to combat it effectively.
With the 2010 communication entitled “The EU Counter-Terrorism
Policy: main achievements and future challenges”, the European Commission
aims to provide several core elements of the current EU counter-terrorism
strategy. This strategy, initiated by the European Council in 2005 and consisting
of four strands – Prevent, Protect, Pursue and Respond – as an answer to the
international terrorist threat, is now a fundamental part of a broader EU internal
plan to ensure the security of people and infrastructures.
The EU Internal Security Strategy (ISS), adopted by the Council in
February 2010, actually establishes a common European security model within
the new boundaries of the Lisbon Treaty, and following on from the 2009
Stockholm Programme which set out a five-year plan (2010 – 2014) for the
development of the EU’s Area of Freedom Security and Justice (AFSJ;
introduced by the Amsterdam Treaty in 1999 and originally covering the old
EU’s “first pillar” and “third pillar”).
According to the Stockholm Programme (Art. 4.5), European action must
respect the rule of law, fundamental rights and freedoms, envisaging an
important role for the EU Counter-Terrorism Coordinator “in ensuring
implementation and evaluation of the counter-terrorist strategy, coordinating
counter-terrorist work within the Union, and fostering better communication
between the Union and third countries”.
Moreover, the cornerstones of the Stockholm Programme included better
control by the competent European bodies of the new methods used for the
dissemination of terrorist propaganda (including the internet), the promotion of
increased transparency and responsibility for NGOs (in order to ensure
compatibility with Special Recommendation no. VIII of the Financial Action
225
Task Force, limiting their potential use as vehicles to finance terrorism), and
finally greater attention to new payment methods in the elaboration and updating
of measures aimed at combatting terrorist financing.
All of these targets, fitting within the four key elements of the strategy
(Prevent, Protect, Pursue, Respond) developed by the Council for anti-terrorism
measures, obviously and necessarily imply an intensive and wide-ranging use of
personal data both by the competent European bodies and the police forces of
individual Member States.
Processing and subsequent analysis of the personal data collected, in fact,
have now become the central and crucial phases in the prevention of terrorist
attacks (and of criminal activities more generally) within the EU as well as
globally, allowing authorities to track the movements, habits, and financial flows
of suspected individuals and organizations and, thus, to intervene before the
threat becomes effective.
2. Materials
-
-
-
-
EDPS - Opinion of 14 January 2011 on the Communication from the
Commission to the European Parliament, the Council, the Economic and
Social Committee and the Committee of regions – “A comprehensive
approach on personal data protection on the European Union”
(http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/D
ocuments/Consultation/Opinions/2011/11-0114_Personal_Data_Protection_EN.pdf);
EESC - Hearing of the European Economic and Social Committee on
Counter-Terrorism Policy and Data Protection - 9 February 2011
(http://www.edps.europa.eu/EDPSWEB/webdav/shared/Documents/E
DPS/Publications/Speeches/2011/11-02-09_Counter_terrorism_EN.pdf);
EDPS - Opinion of 24 November 2010 on the Communication from the
Commission to the European Parliament and the Council concerning the
EU Counter-Terrorism Policy: main achievements and future challenges
ocuments/Consultation/Opinions/2010/10-11-24_EU_counterterrorism_EN.pdf);
Council of the EU, Draft Internal Security Strategy for the European
Union: Towards a European Security Model, Brussels, 23 February 2010,
5842/2/10
(http://register.consilium.europa.eu/pdf/en/10/st05/st05842re02.en10.pdf);
226
-
-
-
-
-
European Council - The Stockholm Programme — An open and secure
Europe serving and protecting citizens - 2010/C 115/01
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:115:0001:0038:e
n:PDF);
Communication from the Commission to the European Parliament and the
Council - Overview of information management in the area of freedom,
security and justice
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0385:FIN:EN:H
TML);
EDPS - Opinion of 17 December 2010 on the Communication from the
Commission “EU Internal Security Strategy in Action: Five steps towards a
more secure Europe”
ocuments/EDPS/Publications/Speeches/2010/10-1217_Internal_Security_EN.pdf);
Financial Action Task Force (FATF) - Special Recommendation no. 8 on
non-profit organizations (2012)
(http://www.fatfgafi.org/topics/fatfrecommendations/documents/fatfrecommendations20
12.html);
Council of the EU – The European Counter Terrorism Strategy (2005)
(http://register.consilium.eu.int/pdf/en/05/st14/st14469-re04.en05.pdf).
3. Analysis
European institutions consider protection of personal data as a fundamental
element of the integration process between Member States. In fact, there are
many references to this form of protection within the official instruments that
constitute and govern the EU: first of all the TFEU, which under art. 16 provides
that “Everyone has the right to the protection of personal data concerning
them”, a norm further specified also in the Charter of Fundamental Rights of the
European Union, in particular at Art. 7 (Respect for private and family life) and
Art. 8 (Protection of personal data).
Also European secondary law has contributed to a better specification of
the boundaries of data protection, both from the point of view of individual
stakeholders through Directive 95/46/EC of the European Parliament and of
the Council of October 24, 1995 (on the protection of individuals with regard to
227
the processing of personal data and on the free movement of such data) and
institutionally through Regulation (EC) No 45/2001 of the European Parliament
and of the Council of December 18, 2000 (on the protection of individuals with
regard to the processing of personal data by the Community institutions and
bodies and on the free movement of such data), in particular its Article 41 which
establishes the European Data Protection Supervisor.
The European Data Protection Supervisor (hereinafter EDPS) is an
independent supervisory authority in charge of monitoring and ensuring, with
regard to the processing of personal data, respect for the fundamental rights and
freedoms of natural persons, and in particular their right to privacy, by the
Community institutions and bodies.
According to Articles 46 and 47 of Regulation (EC) No. 45/2001, the
EDPS has specific duties and powers relating to three main fields of activity:
supervision of personal data processing in order to ensure compliance with
established rules (by pre-checking processing operations against specific risks
(Art. 27), or by receiving complaints and conducting enquiries), consultation with
and provision of advice to the European Commission, Parliament and Council
on legislative proposals and other matters related to data protection (Art. 28), and
finally cooperation with national data protection authorities in order to
strengthen data protection in the EU (Arts. 29 and 30). In order fulfilling these
functions, the EDPS adopted, in February 2011, Opinion 56/02 aiming to make
a contribution to EU counter-terrorism policy choices in an area where the use of
personal data is considered “crucial, massive and particularly sensitive”.
The Opinion focuses on and defines the four elements already identified by
the Communication: “prevent” includes several activities ranging “from
preventing radicalisation and recruitment to dealing with the way terrorists use
the internet”; “protect” relates to both people and infrastructures, and covers a
broad range of initiatives relating to border security, transport security, control of
explosive precursors, protection of critical infrastructure and strengthening of the
supply chain; “pursue” refers to information gathering, police and judicial
cooperation and combating terrorist activities and financing; and finally
“respond” is related to the capacity to deal with the consequences of a terrorist
attack (both in terms of victims and material damage).
However, all of the tasks outlined above often involve both general
collections of personal data – that is, of all citizens rather than only suspects –
and the duplication of work, effort and instruments (e.g. in the case of Terrorist
Finance Tracking Program Agreement (TFTP II) between the EU and the US,
where questions arose over the extent of the agreement, and whether it was
necessary to achieve the desired results, or whether these could instead be
obtained by other, less privacy-intrusive, means, such as those already laid down
228
by the existing EU and international legal framework). In order to address these
issues, the EDPS recommended in its Opinion that particular attention be paid to
large-scale data processing, highlighting the need, in cases where data is to be
processed for purposes other than those driving its initial collection, for such
activities to be limited by the principle of necessity (for example, where
authorities seek access to the information on the Eurodac system for purposes of
law enforcement, rather than migration control). The Opinion of the EDPS also
comments on the use of restrictive (asset-freezing) measures towards specific
countries and suspected terrorists. In this area, where the Court of Justice (see
the Kadi I case) has already confirmed that the respect of citizens’ rights and due
process requirements are critical in the fight against terrorism, the Opinion
highlights the need for further improvements, “especially with regard to the right
of information and of access to personal data, a clear definition of restrictions to
these rights, and the availability of effective judicial remedies and independent
supervision”, and agrees with the Communication that “one of the future
challenges in the area of counter-terrorism policy will be the use of Article 75
TFEU”. In this Article, the Lisbon Treaty allows for the introduction of assetfreezing measures against natural or legal persons; the Opinion of the EDPS
“recommends that this legal basis be used also to lay down a framework for asset
freezing which is fully compliant with the respect of fundamental rights”.
Finally, the Opinion emphasizes the need to ensure that adequate measures
with regard to data sharing with third countries and international organisations, in
order to guarantee a minimum level of privacy protection also in the context of
international cooperation with the EU’s external partners in the field of
combating terrorism.
4. Issues: The “Equilibrium” Between Security and Personal Data Protection – “Ad
Impossibilia Nemo Tenetur” (excepting the EU)?
Both at the EU and the global level, all counter-terrorism strategies are based on
prospective risk assessments, which implies a “preventive” approach to the use
of large amounts of personal information on non-suspected citizens (e.g. by
internet screening, e-borders and security scanners).
This data, increasingly, is obtained thanks to partnerships between law
enforcement authorities and private companies (e.g. internet service providers,
financial institutions, commercial companies), for the exchange of sensitive
information. In particular, there has been a very significant increase in the use of
personal data originally collected by private companies for commercial purposes
by public authorities for very different purposes.
229
These “preventive” procedures involve real risks of facilitating
discrimination: the collection and processing of personal data relating to broad
categories of individuals, unrelated to any specific suspicion and often coupled
with data-mining techniques, may lead to the flagging of innocent people as
suspects due only to the coincidence between their personal profile (age, sex,
religion, etc.) or behavioural patterns (travelling) with those of terrorists or
suspected terrorists (think, for example, of those of Arab ethnicity who travel
regularly to the US or the UK).
Even if these risks, often justified on the basis of the need for a rapid
response to terrorist incidents, may be initially considered and temporarily
allowed as a form of “collateral damage”, the issues become much more
problematic when such measures turn into structural or there is a systematic use
of them by police forces and authorities, given the risks they create of increased
racism and xenophobia.
In this way, the need for a balance between security and fundamental rights
protection emerges in the field of counter-terrorism.
Are, then, these values incompatible?
According to EU law, both security and data protection are common
values among Member States, and so the focus moves from outright mutual
exclusivity to a more realistic need for balance, which must be constant and
meticulous. Terrorism in general – not only in the EU – is a particularly complex
phenomenon, and the response to it must be flexible and capable of fine-tuning
on a daily basis, often in response to particular incidents (e.g. the body scanner
case). Furthermore, counter-terrorism policy must be decidedly transversal in
nature, both because there are different actors involved, from the public (police,
independent authorities, judiciary) and private (individuals, commercial
companies, NGOs) sectors, at both the national and the international level; and
because the resulting implications impact upon a large swathe of EU policy, from
police and judicial cooperation in criminal matters to the Internal Security
Strategy and the Common Foreign and Security Policy.
Moreover, data protection and respect for fundamental rights are functions
still strongly rooted at the national level; it is, therefore, often the role of
individual Member States to identify and sanction violations, possibly after
having been informed of their existence by the relevant EU institution.
There are, therefore, two elements key to grasping and – it is hoped –
developing a possible solution to the problem. The first is to establish and
enforce a common requirement of transparency across the fragmented counterterrorism policy framework, in order to improve stakeholder knowledge of the
guidelines in existence and provide them with – to the extent possible – a clear
description of the data processing involved. The second is the need to link this
230
strategy, at every stage of its development, with an effective policy on
fundamental rights protection (through constant use of the principles of necessity
and proportionality both in adopting legislative measures and in their
enforcement, by reducing general presumptions of suspicion in favour of those
with a basis in individual evidence, and by establishing an adequate system of
judicial remedies and sanctions).
When achieved, these two requirements will contribute to the
establishment of a shared European policy on data processing in relation to
counter-terrorism that is no longer reactive and emergency-based in nature, but is
rather characterized by a systematic approach that coheres fully with existing
European law (in particular, in this regard, Article 16(2) TFEU and Article 39
TEU), and is equipped with tools that are fit-for-purpose.
Finally, a periodic and independent evaluation of the effectiveness of
legislative and organizational measures introduced, as well as an accurate
cost/benefit analysis, will be necessary to decide which should be retained, which
jettisoned and which developed further.
5. Further Reading
-
-
-
-
R. BOSSONG, “The EU’s Mature Counterrorism Policy: A Critical Historical
and Functional Assessment”, LSE Challenge Working Paper (2008)
(http://www2.lse.ac.uk/internationalRelations/centresandunits/EFPU/EF
PUpdfs/EFPUchallengewp9.pdf);
EDPS, Annual Report 2010: an increased effort is required to ensure effective data
protection in practice
ocuments/EDPS/Publications/Annualreport/2010/AR2010_EN.pdf);
E. GUILD, S. CARRERA, Towards an Internal (In)Security Strategy for the EU?,
CEPS Liberty and Security in Europe Publication Series (2011)
(http://ssrn.com/abstract=1756734);
C. KAUNERT, Towards supranational Governance in EU Counter-Terrorism? - The
Role of the Commission and the Council Secretariat, (2010)
(http://kms1.isn.ethz.ch/serviceengine/Files/ISN/117561/ipublicationdo
cument_singledocument/84ad793f-296f-4e1f-96dcafda71758754/en/WholeIssue_1.pdf);
S. LEONARD, The Use and Effectiveness of Migration Controls as a CounterTerrorism Instrument in the European Union (2010)
(http://kms1.isn.ethz.ch/serviceengine/Files/ISN/117561/ipublicationdo
-
-
231
cument_singledocument/84ad793f-296f-4e1f-96dcafda71758754/en/WholeIssue_1.pdf);
Council of EU, Decision 2010/412 of 13 July 2010 on the conclusion of
the Agreement between the European Union and the United States of
America on the processing and transfer of Financial Messaging Data from
the European Union to the United States for the purposes of the Terrorist
Finance Tracking Program
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32010D0412:EN:H
TML);
TE-SAT 2011, EU Terrorism situation and trend report
(https://www.europol.europa.eu/sites/default/files/publications/tesat2011.pdf).
232
VII.D.7 The Use of Financial Data to Fight Terrorism: The SWIFT Case
Maria Tzanou
1.
Background: The ‘secret’ operations
Shortly after the attacks of September 11, 2001, the US President, relying on the
International Emergency Economic Powers Act of 1977 (IEEPA) and on the
United Nations Participation Act of 1945 (UNPA), issued Executive Order
13224. The Order, as implemented through the Global Terrorism Sanctions
Regulations, established the Terrorist Finance Tracking Program (TFTP), under
which the United States Department of the Treasury (UST) was authorized to
require any person to furnish financial transaction data in connection with an
economic sanctions-related investigation. The purpose of the Program was to
identify, track, and pursue terrorists and their networks by unraveling their
money flows.
Under the TFTP, the US Treasury Department, seeking information on
suspected international terrorist networks, started issuing administrative
subpoenas to the US operations center of the Society for Worldwide Interbank
Financial Telecommunication (SWIFT). SWIFT is a cooperative limited-liability
company governed by Belgian law that operates a worldwide messaging system
used to transmit financial transaction information. In particular, SWIFT supplies
its customers, who are banks or other financial institutions, with automated,
standardized messaging services and interface software aimed at transmitting
financial messages between financial institutions from all over the world. At the
time, SWIFT had two operation centers located in SWIFT branches, one in
Europe and one in the United States. All messages processed by SWIFT were
stored and mirrored at both operation centers for 124 days, as a “back-up
recovery tool” for customers in case of disputes between financial institutions or
data loss. After this period the data was deleted.
Under the TFTP, UST addressed multiple administrative subpoenas very
broad in nature to the US SWIFT operation center requiring information on
transactions which related or might relate to terrorism, related to x number of
countries and jurisdictions, on y date, or “from … to …” (with dates ranging
from one to several weeks). The geographical scope of the subpoenas was also
very wide, covering messages of inter-bank transactions within the US, those to
or from the US, and even those with no territorial connection to the US, such as
233
messages exchanged within the EU. In order to comply with the subpoenas,
SWIFT delivered the data to a so-called “black box” owned by the US and
retained at UST facilities. Subsequently, the US Treasury Department would
perform its searches on the data transferred to the “black box”.
The scheme was revealed by a series of media reports at the end of June
and beginning of July 2006 and caused a wave of criticism in the EU. In
particular, the European Parliament, the Article 29 Data Protection Working
Party and the European Data Protection Supervisor voiced serious concerns
regarding the Program’s compliance with the fundamental rights to privacy and
data protection. In its Resolution of 6 July 2006, the European Parliament
stressed that it strongly disapproved of any secret operations on EU territory that
affect the privacy of EU citizens and that it was deeply concerned that such
operations were taking place without the citizens of Europe and their
parliamentary representatives having been informed. Concerning the TFTP, the
Parliament noted that access to data managed by SWIFT could reveal
information on the economic activities of the individuals and countries
concerned, with the risk that this could amount to “large-scale forms of
economic and industrial espionage.” Along the same lines, the Belgian Data
Protection Authority found, in its Opinion of 27 September, that SWIFT had
made a “hidden, systematic, massive and long-term violation of the fundamental
European principles as regards data protection.” In its Opinion of 22 November
2006, the Article 29 Working Party severely criticized SWIFT for failing to
comply with its obligations under the Data Protection Directive, in particular
with the requirement to notify the subjects that their data had been shared, and
the obligation to provide an appropriate level of protection in order to meet the
Directive’s requirements for international transfers of personal data. Regarding
the TFTP, the Working Party held that the lack of transparency and adequate and
effective control mechanisms that surrounded the whole process of transfer of
personal data first to the US, and then to the UST, represented a serious breach
in light of the Data Protection Directive.
In order to address these concerns, the European Commission entered into
negotiations with the US Treasury Department in an effort to place the TFTP
scheme under some kind of legal framework and ensure a minimum of
safeguards for the transfer of EU citizens’ financial transaction data to the US.
On 28 June 2007, UST sent a letter to the EU containing a set of unilateral
representations which described the controls and safeguards governing the
handling, use and dissemination of data under the Treasury Department’s
Terrorist Financing Tracking Program. Noting that the TFTP “represents exactly
what citizens expect and hope their governments are doing to protect them from
terrorist threats”, the UST went on to explain why the Terrorist Finance Tracking
234
Program was “grounded in law, carefully targeted, powerful and successful, and
bounded by privacy safeguards.” The UST invited in its letter the EU to appoint
in consultation with the Treasury Department “an eminent European person” to
confirm that the program was in fact implemented as represented in order to
verify that the protection of EU-originating personal data was adequate. On 7
March 2008, the Commission announced the designation of Judge Jean-Louis
Bruguière as the SWIFT/TFTP “eminent European person.” Judge Bruguière
produced two Reports on TFTP in December 2008 and January 2010, in which
he found that the program was respecting, in general, the safeguards set out in
UST’s representations.
2.
Materials
-
Eric Lichtblau & James Risen, Bank Data Is Sifted by U.S. in Secret to
Block Terror, The New York Times, June 23, 2006
(http://www.nytimes.com/2006/06/23/washington/23intel.html?pagewa
nted=all);
European Parliament resolution on the interception of bank transfer data
from the SWIFT system by the US secret services P6_TAPROV(2006)0317
(http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P
6-TA-2006-0317&language=EN&ring=B6-2006-0393);
Belgium Privacy Commission Opinion No. 37/2006 of 27 September 2006
on the transfer of personal data by the CSLR SWIFT by virtue of UST
(OFAC) subpoenas
(http://www.steptoe.com/assets/attachments/2644.pdf);
Article 29 Data Protection Working Party Opinion 10/2006 on the
processing of personal data by the Society for Worldwide Interbank
Financial Telecommunication (SWIFT)
(http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2006/wp128
_en.pdf)
EDPS Opinion on the role of the European Central Bank (ECB) on the
SWIFT case, 1 February 2007
ocuments/EDPS/PressNews/Press/2007/EDPS-20071_SWIFT_EN.pdf);
Letter from United States Department of the Treasury regarding
SWIFT/Terrorist Finance Tracking Programme (2007/C 166/08), 28 June
2007
-
-
-
-
-
-
-
-
-
-
235
N:PDF);
Processing of EU originating Personal Data by United States Treasury
Department for Counter Terrorism Purposes – “SWIFT”(2007/C166/09)Terrorist Finance Tracking Program - Representations of the United States
Department of the Treasury, 28 June 2007
(http://eurlex.europa.eu/LexUriServ/site/en/oj/2007/c_166/c_16620070720en0018
0025.pdf);
Reply from European Union to United States Treasury Department SWIFT/Terrorist Finance Tracking Programme (2007/C 166/10), 20 June
2007
N:PDF);
Commission press release announcing the designation of Judge Jean-Louis
Bruguière as the SWIFT /TFTP “eminent European person” IP/08/400, 7
March 2008
(http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/400&f
ormat=HTML&aged=0&language=en&guiLanguage=en);
Summary of the First Annual Report on the Processing of EU Originating
Personal Data by the United States Treasury Department For Counter
Terrorism Purposes, Terrorist Finance Tracking Programme, Judge JeanLouis Bruguière
(http://www.statewatch.org/news/2011/apr/eu-usa-tftp-swift-1st-report2008-judge-bruguiere.pdf);
Second Report on the Processing of EU-Originating Personal Data by the
US Treasury Department for Counter-terrorism purposes, TFTP, Judge
Jean-Louis Bruguière
(http://www.statewatch.org/news/2010/aug/eu-usa-swift-2nd-bruguierereport.pdf).
TFTP I Documents:
-
SWIFT announces plans for system re-architecture, 15 June 2007
(http://www.swift.com/about_swift/legal/compliance/statements_on_co
mpliance/swift_announces_plans_for_system_re_architecture.page);
European Parliament resolution of 17 September 2009 on the envisaged
international agreement to make available to the United States Treasury
236
-
-
-
Department financial payment messaging data to prevent and combat
terrorism and terrorist financing P7_TA(2009)0016
(http://www.europarl.europa.eu/sides/getDoc.do?pubRef=//EP//TEXT+TA+P7-TA-2009-0016+0+DOC+XML+V0//EN);
on the processing and transfer of Financial Messaging Data from the
European Union to the United States for purposes of the Terrorist Finance
Tracking Program, 30 November 2009
N:PDF);
LIBE Committee Recommendation on the proposal for a Council decision
on the conclusion of the Agreement between the European Union and the
United States of America on the processing and transfer of Financial
Messaging Data from the European Union to the United States for
purposes of the Terrorist Finance Tracking Program (05305/1/2010REV
– C7-0004/2010 – 2009/0190(NLE)), 5 February 2010
(http://www.europarl.europa.eu/sides/getDoc.do?language=EN&referenc
e=A7-0013/2010);
European Parliament legislative resolution on the proposal for a Council
decision on the conclusion of the Agreement between the European Union
and the United States of America on the processing and transfer of
Financial Messaging Data from the European Union to the United States
for purposes of the Terrorist Finance Tracking Program (05305/1/2010
REV 1 – C7-0004/2010 – 2009/0190(NLE)) P7_TA(2010)0029, 11
February 2010
(http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P
7-TA-2010-0029&language=EN).
TFTP II Documents:
-
European Parliament resolution of 5 May 2010 on the Recommendation
from the Commission to the Council to authorise the opening of
negotiations for an agreement between the European Union and the
United States of America to make available to the United States Treasury
Department financial messaging data to prevent and combat terrorism and
terrorist financing P7_TA(2010)0143
(http://www.europarl.europa.eu/sides/getDoc.do?pubRef=//EP//TEXT+TA+P7-TA-2010-0143+0+DOC+XML+V0//EN);
-
-
-
-
-
237
Council Decision 2010/411/EU of 28 June 2010 on the signing, on behalf
of the Union, of the Agreement between the European Union and the
United States of America on the processing and transfer of financial
messaging data from the European Union to the United States for the
purposes of the Terrorist Finance Tracking Program
N:PDF);
European Union to the United States for the purposes of the Terrorist
Finance Tracking Program, 28 June 2010
N:PDF);
Recommendation on the draft Council decision on the conclusion of the
Finance Tracking Program (11222/1/2010/REV 1 and COR 1 – C70158/2010 – 2010/0178(NLE)), 5 July 2010
(http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&refere
nce=A7-2010-0224&language=EN);
European Parliament legislative resolution on the draft Council decision on
the conclusion of the Agreement between the European Union and the
United States of America on the processing and transfer of Financial
Messaging Data from the European Union to the United States for the
purposes of the Terrorist Finance Tracking Program (11222/1/2010/REV
1 and COR 1 – C7-0158/2010 – 2010/0178(NLE)) P7_TA(2010)0279
(http://www.europarl.europa.eu/sides/getDoc.do?pubRef=//EP//TEXT+TA+P7-TA-2010-0279+0+DOC+XML+V0//EN).
Council Decision 2010/412/EU of 13 July 2010 on the conclusion of the
Finance Tracking Program
N:PDF).
238
3.
Analysis
Following the criticisms of the Belgian Data Protection Authority and the Article
29 Working Party that found SWIFT to be in breach of its EU Data Protection
obligations, the Belgian-based company announced in 2007 that it would
restructure its messaging architecture. The new architecture, which was expected
to be operational as of 1 January 2010 would store the EU originating financial
data solely in Europe, thus excluding them from being targeted with subpoenas
from the US Treasury Department under the TFTP.
Following US administration requests highlighting that “an important
security gap” might arise if European financial transactions were not available to
UST for terrorism investigations under the TFTP, the Council authorized the
Commission at the end of July 2009 to begin negotiations with UST for the
conclusion of a short-term Agreement allowing the transfer of EU originating
SWIFT data to the US. On 30 November 2009, one day before the entry into
force of the Lisbon Treaty, the Council signed an Agreement between the EU
and the USA on the processing and transfer of Financial Messaging Data from
the European Union to the United States for purposes of the Terrorist Finance
Tracking Program. The Agreement would apply provisionally from 1 February
2010 and expire at the latest on 31 October 2010.
Things were not so simple, however. With the entry into force of the
Lisbon Treaty the following day, 1 December 2009, a new procedure for the
conclusion of international agreements applied, under which, according to Article
218 of the Treaty on the Functioning of the EU (TFEU), the European
Parliament’s consent would be required for the formal conclusion of the TFTP
Agreement. Noting on the one hand, that the Council had in effect breached the
spirit of inter-institutional cooperation laid down in Article 218 TFEU by
undermining the legal effect and the practical impact of the Parliament’s decision
in the consent procedure; and, on the other hand, that the Agreement violated
the basic principles of EU data protection law, the Parliament decided to
withhold its consent to the conclusion of the TFTP Agreement. The Agreement,
therefore, never entered into force.
This meant that the Commission and the Council had to open a new round
of negotiations with the US for a second TFTP Agreement, this time paying due
respect to the role of the European Parliament. On 28 June 2010, the Agreement
between the EU and the USA on the processing and transfer of Financial
Messaging Data from the European Union to the United States for the purposes
of the Terrorist Finance Tracking Program (TFTP II) was signed. The Parliament
gave its consent to the conclusion of the Agreement on 8 July 2010, and TFTP II
239
entered into force on the 1st of August 2010. The Agreement is envisaged to
apply for five years, unless otherwise determined by the Parties.
4. Issues
The SWIFT case raises several complex issues in a number of different legal and
policy fields: counter-terrorism, fundamental rights, financial transactions law,
European law inter-institutional power-sharing balances, the role of commercial
entities in the law enforcement context, and EU-US relations.
These can be grouped into four main sets. The first major problem that
arose in the SWIFT case was that its initial operational stage was characterized by
high levels of secrecy. From 2001 to 2006, EU financial data were processed by
the US Treasury Department for the purposes of detecting terrorist financing
routes without any meaningful attempts to inform the data subjects, the EU
institutions, or the Member States. The scheme was disclosed only through media
reports. The question was raised, therefore, of how the EU can cooperate
effectively with its transatlantic partner under such circumstances. More
importantly, secret State schemes, whatever their purpose, cannot be tolerated by
a democratic entity operating under the rule of law. The initial phase of the
SWIFT affair goes against the basic principle stressed numerous times by the
European Court of Human Rights that limitations of fundamental rights should
be ‘in accordance with the law.’ This means that there must be a legal basis for
the interference that is accessible and foreseeable to individuals. What was the
legal basis for the transfer of EU financial transactions’ data to the US? Was it
accessible to EU citizens and their representative institutions? Could the US
measures be challenged before national or supranational courts? After the
disclosure of the secret scheme by the media in 2006, was the solution adopted
by the US, of the making of unilateral Representations, satisfactory from a
human rights’ point of view? Can a set of unilateral Representations be regarded
as “law”, as this is understood by the Strasbourg Court?
The second set of issues concerns the role of SWIFT. SWIFT does not
enter into direct contractual relationships with the clients of banks who wish to
make a financial transaction; rather, it has a relationship with the financial
institutions that use its messaging structure for the transmission of the messages
of their clients. This does not mean, however, that SWIFT does not bear
contractual obligations and responsibilities. The transmission of financial data to
the US Treasury Department to be searched for counter-terrorism purposes
constitutes a purpose entirely incompatible with the one for which the data were
initially collected, namely the provision of the messaging service. This clearly goes
240
against the purpose limitation principle, which constitutes the keystone of EU
data protection law. SWIFT was under the obligation to inform at least its
customers, i.e., the banks, that the data of their clients could be searched by UST
for counter-terrorism purposes. But this is not the only violation of the EU Data
Protection Directive to be found in SWIFT’s policies. The Directive clearly
establishes a number of limitations for the transfer of data to third countries. In
general, data flows outside the EU are permissible when the third country
provides for an “adequate level” of data protection. In this context, SWIFT
should have at least notified the transfers of data to the US to the Belgian Data
Protection Authority, which would have advised it on the steps to be taken to
make the transfers compatible with EU law. Starting from SWIFT’s involvement
in the present case, one needs to reflect, more generally, on the role of private
companies in the fight against terrorism. Can information be used for counterterrorism just because it is available in commercial databases for commercial
purposes? How did private entities become “Big Brother’s little helpers” and
what are the implications of this for the fundamental rights of privacy and data
protection of their customers?
The third set of questions is more focused on the EU, and balance of – and
competition for – power between its institutions. Why did the Council choose to
conclude the TFTP I Agreement one day before the entry into force of the
Lisbon Treaty? Was it because the conclusion of the Agreement was an urgent
matter or was it an attempt to circumvent the Parliament? What were the
implications of this after the entry into force of the Lisbon Treaty? Why did the
Parliament withhold its consent from TFTP I? While TFTP II introduces some
improvements, from a substantive fundamental rights’ point of view it is equally
problematic as TFTP I; perhaps even more so. Why did the Parliament,
therefore, decide to vote in favor of such an Agreement? Are fundamental rights
being placed on the back-burner due to inter-institutional conflicts within the
EU?
The fourth set of issues runs throughout the SWIFT case. It concerns the
rights of privacy and data protection in the context of the fight against terrorism.
What are the permissible limitations on fundamental rights in the fight against
terrorism? Does the SWIFT case present a necessary and proportionate
interference with the rights to privacy and data protection of individuals? In
particular, does the bulk transfer of financial data to UST constitute a
proportionate limitation of the right to data protection in the name of fighting
terrorism? Are there effective means of redress in place for the protection of
these data subjects?
241
Finally, it should be noted that the second EU-US TFTP Agreement has
far from resolved the matter. Problems have already arisen at the operational
level of the Agreement and the role that has been assigned to EUROPOL.
Notwithstanding all these issues, the Commission has already tabled a
proposal for the development of an EU Terrorist Finance Tracking System
(TFTS). It seems, therefore, that there remain many acts of the SWIFT drama to
be played out yet.
5. Further Reading
a.
b.
c.
d.
e.
P. CONNORTON, “Tracking Terrorist Financing Through SWIFT: When
U.S. Subpoenas and Foreign Privacy Law Collide”, 76 Fordham L. Rev. 283
(2007)
(http://ir.lawnet.fordham.edu/flr/vol76/iss1/7/);
M. CREMONA, “Justice and Home Affairs in a Globalised World:
Ambitions and Reality in the Tale of the EU-US SWIFT Agreement”,
Institute for European Integration Research, Working Paper No. 4/2011;
J. MONAR, “Editorial Comment: The Rejection of the EU-US TFTP
Interim Agreement by the European Parliament: A Historic Vote and its
Implications” 15 European Foreign Affairs Review 143 (2010);
W. HUMMER, “Die SWIFT- Affaire US-Terrorismusbekämpfung versus
Datenschutz” 49 Archiv des Völkerrechts 203 (2011);
J. SANTOLLI, “Note: The Terrorist Finance Tracking Program: Illuminating
the Shortcomings of the European Union’s Antiquated Data Privacy
Directive”, 40 The Geo. Wash. Int’l L. Rev. 553 (2008).
242
VIII.D.8 An Indirect Challenge to the Security Council: Abdelrazik v.
Canada (Minister of Foreign Affairs)
Abigail C. Deshman
1. Background
Over the past decade a strong, elaborate international framework has emerged to
combat transnational terrorism. A primary branch of this international regime is a
series of Security Council Resolutions that designate mandatory sanctions for
specific listed individuals and entities. The regime has its origins in Resolution
1267, adopted by the United Nations Security Council in 1999. Resolution 1267
demanded that the Taliban, which at the time controlled Afghanistan, hand
“Usama bin Laden” over for prosecution on terrorism charges. The Resolution,
which was issued under Chapter VII of the UN Charter, also ordered sanctions
against the Taliban. All States were required to deny take-off or landing
permission for any unapproved Taliban aircraft, to freeze funds and financial
resources directly or indirectly controlled by the Taliban, and to “bring
proceedings against persons and entities within their jurisdiction” that violated
the sanctions. The Security Council also created a committee (the ‘1267
Committee’) that would identify aircraft and funds controlled by the Taliban and
consider any requests for exemption from the sanctions. One year later
Resolution 1333 was passed, which extended the sanctions beyond the Taliban to
include individual members of Al-Qaida.
Over the next decade the Security Council adopted over a dozen
Resolutions that reaffirmed and enhanced these initial sanctions (collectively, the
“1267 sanctions regime”). By 2009, in addition to those who were direct
members of the Taliban and Al-Qaida, the 1267 Committee also had the ability
to list those who were “associated with” these entities. Resolution 1617 (adopted
in 2005) had elaborated an extremely broad and vague definition of “associated
with” which included:
(a)
(b)
(c)
(d)
participating in the financing, planning, facilitating, preparing, or
perpetrating of acts or activities by, in conjunction with, under the
name of, on behalf of, or in support of;
supplying, selling or transferring arms and related materiel to;
recruiting for; or
otherwise supporting acts or activities of;
243
Al-Qaida, Usama bin Laden or the Taliban, or any cell, affiliate, splinter
group or derivative thereof.
By 2009, over 500 individuals and entities were included on the 1267 list.
Listed individuals and entities were subject to an asset freeze, a travel ban
and an arms embargo. States were required to freeze all assets of listed persons,
and ensure that neither these funds “nor any other funds, financial assets or
economic resources are made available, directly or indirectly, for such persons’
benefit”. There were exemptions for funds that were deemed to be “necessary
for basic expenses” such as food, rent and legal expenses, but only when such an
exemption was first requested by a state and then approved by the Committee.
The travel ban required that states prevent listed individuals from traveling
through or entering onto their territories. There were some exceptions to the
travel ban, including travel to fulfill a judicial process, and exemptions that could
be granted on an ad hoc, case-by-case basis if the Committee determined “that
entry or transit is justified.” Resolution 1390 (2002), which expanded the travel
ban to all listed individuals, also stipulated that “nothing in this paragraph shall
oblige any State to deny entry into or require the departure from its territories of
its own nationals.”
Initially there were almost no procedural protections for individuals or
entities that were being considered or had been listed by the 1267 Committee.
Listing decisions were initiated by a single state (the “designating state”) and
taken in secret; if there was disagreement on a listing request within the
Committee, the Security Council would take a final decision. Individuals were not
informed that they were being considered for listing, and as a result did not have
the opportunity to present submissions to the Committee. Initially there was no
public information regarding why the various individuals and entities had been
placed on the list. Moreover, if a person felt they had been listed in error, there
was no way to petition the Committee directly. Delisting requests could only be
made by an individual’s home state, and final decisions were left entirely up to
the discretion of the Committee and the Security Council. Decisions were made
by consensus, meaning that any single member of the Committee or Security
Council could block a delisting petition.
Gradually some basic procedural elements were introduced. The listing
procedure, and the information provided regarding the reasons for the listing,
were gradually elaborated. Resolution 1617 (2005) encouraged governments to
notify listed individuals “to the extent possible,” while simultaneously reaffirming
that confidential information provided to the 1267 Committee would not be
released without the state’s consent. Resolution 1735 (2006) set out the details
states should disclose to the Committee when nominating an individual for
244
listing, but again affirmed that this information would only be shared publicly or
the impacted individual with the petitioning state’s consent. Finally, Resolution
1822 (2008) required the 1267 Committee to post narrative summaries of the
reasons for listing on the Committee’s website.
The de-listing process was also reformed over the course of several years.
In 2006, the 1267 Committee was ordered to adopt delisting guidelines that
would take into account possible mistaken identity, death or changed
circumstances relevant to the listing criteria. The Security Council also created a
“focal point” that would be able to receive delisting requests directly from
impacted individuals, thus eliminating the requirement that such requests to be
brought by a person’s home state or country of residence. Ultimately, however,
either the designating government, the government of citizenship or residence, or
one of the Committee members had to recommend delisting. If no state took up
the delisting petition, the request would be denied. It was only in 2009 that the
Security Council created an Ombudsman that would receive delisting requests,
consult with all relevant parties, and prepare a report for the 1267 Committee.
Even after this reform, however, the Ombudsman still did not have mandatory
access to classified or confidential information, and final decisions on delisting
were still made by the 1267 Committee on a confidential, consensus basis.
Canada directly implemented the 1267 sanction regime through the United
Nations Al-Qaida and Taliban Regulations. The Regulations implement the assets
freeze, travel ban, and arms embargo mandated by the Security Council, and
directly import the persons and entities included on the 1267 list. They also set
up a procedural mechanism that allows any Canadian or person in Canada to
petition the Canadian government in order to be delisted by the 1267 Committee.
The Canadian Regulations, however, do nothing to alter the delisting process that
has been established by the Security Council.
2. Materials and Links
Main case:
-
Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 FCR
267
(http://canlii.ca/t/2421r);
245
United Nations Security Council Resolutions:
-
-
-
-
-
-
-
-
United Nations Security Council Resolution 1267, U.N. Doc. S/RES/1267
(1999)
Element);
United Nations Security Council Resolution 1333, U.N. Doc.
S/RESS/1333 (2000)
Element);
(2001)
Element);
(2002)
Element);
(2002)
Element);
United Nations Security Council Resolution1455, U.N. Doc. S/RES/1455
(2003)
Element);
(2004)
Element);
(2005)
246
-
-
-
-
-
-
Element);
(2006)
Element);
(2006)
Element);
(2008)
(http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/1822%20(
2008);
(2009)
Element);
(2011)
Element);
(2011)
Element).
Canadian legislation and regulations:
-
United Nations Act, R.S.C. 1985, C U-2
(http://canlii.ca/t/7vm5);
United Nations Al-Qaida and Taliban Regulations, SOR/99-444
(http://canlii.ca/t/80xc)
247
Similar cases:
-
-
-
-
United Nations Human Rights Committee, Communcation No.
1472/2006, UN Doc. CCPR/C/94/D/1472/2006 (Dec. 29, 2008)
(http://www1.umn.edu/humanrts/undocs/1472-2006.pdf);
Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International
Foundation v. Council of the European Union and Commission of the European
Communities, [2008] ECR I-6351,
TML);
Joined cases C-399/06 P and C-403/06 P, Hassan v. Council of the European
Union and Commission of the European Communities, [2009] E.C.R. I-11393
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006CJ0399:EN:
HTML)
Case T-85/09, Kadi v. European Commission, [2010] E.C.R. I-2729
(http://curia.europa.eu/juris/celex.jsf?celex=62009TJ0085&lang1=en&typ
e=NOT&ancre=) (currently under appeal – see also
N:PDF) and
N:PDF));
HM Treasury v. Ahmed, [2010] UKSC 2
(http://www.supremecourt.gov.uk/decidedcases/docs/UKSC_2009_0016_Judgment.pdf).
3. Analysis
Abousfian Abdelrazik is a dual Canadian-Sudanese citizen who traveled to Sudan
in March 2003. In September of that year he was arrested by Sudanese authorities
and spent the next three years in and out of Sudanese detention centres. Mr.
Abdelrazik was never charged with any offence, and after each period of
detention he attempted to return to Canada but was never able to board a plane.
On July 20, 2006, the day of his final release from Sudanese prison, he was
designated by the United States Treasury Department for his “high level ties to
and support for the Al-Qaida network.” On July 21, the United States
248
Department of State listed him as “a person posing a significant risk of
committing acts of terrorism that threaten the security of U.S. nationals and the
national security.” By the end of that month he had been listed by the 1267
Committee as an associate of Al-Qaida.
In October 2007, Abelrazik’s lawyer petitioned the Canadian government
to request that the 1267 Committee remove his name from the list. The
government requested information from Canadian authorities, who confirmed
that there was no current, substantive Canadian intelligence or law enforcement
information linking Mr. Abdelrazik to criminal activity or Al-Qaida. The Minister
of Foreign Affairs submitted a delisting request to the 1267 Committee. The
request was denied without reasons on December 21, 2007.
In April 2008, fearing for his safety and potential re-incarceration by
Sudanese authorities, Mr. Abdelrazik sought refuge in the Canadian Embassy in
Khartoum. In March, 2009 he succeeded in securing a paid flight from
Khartoum to Toronto, scheduled to leave on April 3. Despite many previous
assurances that emergency travel documentation would be provided, however,
two hours before the flight the Canadian government refused to issue him an
emergency passport and he was unable to board the plane.
On April 14, 2009, Mr. Abdelrazik brought an application to Canadian
Federal Court claiming a violation of his mobility rights under the Canadian
Charter of Rights and Freedoms. S. 6(1) of the Charter states that “[e]very citizen of
Canada has the right to enter, remain in and leave Canada.” Like most of the
rights provided for in the Canadian Constitution, Canadian citizens’ mobility
rights are subject “only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.” The Federal Court
found that Canada had violated Abdelrazik’s constitutional rights through a series
of actions, starting with the government’s involvement in his initial detention in
Sudan and culminating in its refusal to issue an emergency passport. In the
course of the judgment, the Court strongly criticized the 1267 sanctions regime.
The lack of procedural rights and due process protections for listed individuals
was a central concern:
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
fairness. Unlike the first Canadian security certificate scheme that was rejected
by the Supreme Court in Charkaoui v. Canada (Citizenship and Immigration), 2007
SCC 9 (CanLII), 2007 SCC 9, [2007] 1 S.C.R. 350, the 1267 Committee listing
and de-listing processes do not even include a limited right to a hearing. 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.
249
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.
With regards to delisting, the presiding judge wrote:
For a person such as Mr. Abdelrazik who asserts that he never met the [1267
listing] criteria and was wrongly listed in the first instance, it is difficult to see
how he can provide the requested justification, particularly when he has no
information as to the basis for the initial listing. Subparagraph 7(g)(iii) of the
Guidelines further provide that if the request for de-listing is a repeat request
and if it does not contain any information additional to that provided in the first
request, it is to be returned to the petitioner without consideration. It is difficult
to see what information any petitioner could provide to prove a negative, i.e. to
prove that he or she is not associated with Al-Qaida. One cannot prove that
fairies and goblins do not exist any more than Mr. Abdelrazik or any other
person can prove that they are not an Al-Qaida associate. It is a fundamental
principle of Canadian and international justice that the accused does not have
the burden of proving his innocence, the accuser has the burden of proving
guilt. In light of these shortcomings, it is disingenuous of the respondents to
submit, as they did, that if he is wrongly listed the remedy is for Mr. Abdelrazik
to apply to the 1267 Committee for de-listing and not to engage this Court. The
1267 Committee regime is, as I observed at the hearing, a situation for a listed
person not unlike that of Josef K. in Kafka’s The Trial, who awakens one
morning and, for reasons never revealed to him or the reader, is arrested and
prosecuted for an unspecified crime.
Ultimately, however, these strong criticisms were obiter and did not form part of
the operative holding of the judgment. Rather, the Court interpreted Canada’s
international obligations in such a way that permitted the government to not only
issue an emergency passport, but actively facilitate Mr. Abdelrazik’s repatriation.
The Court’s interpretation of the 1267 sanctions regime, as set out by the
Security Council Resolutions, was central to the resolution of the case. Canada
had argued that it could not issue Mr. Abdelrazik an emergency passport.
Although the 1267 regime allowed individuals to enter their home countries,
Canada argued that in order to reach Canada Abdelrazik would have to fly over,
and therefore transit through, the territory of other states. Because transit
through other countries was prohibited, by issuing a passport Canada would be
facilitating a breach of the Security Council’s orders. The judge dismissed this
argument, finding that air space did not necessarily form part of a country’s
‘territory’ and that interpreting the provisions in this manner would lead to the
illogical result that a person could only re-enter his or her country of origin if he
or she was literally standing on the country’s border. Canada was not prohibited
from providing its own citizens emergency passports and the Government was
ordered to issue the required documents.
250
The Court also ordered the Government to actively facilitate Mr.
Abdelrazik’s return by paying for his flight if credit from his original cancelled
ticket was insufficient. Paying for a listed individual’s flight could arguably be
seen as a direct violation of the Security Council’s resolutions on financial
assistance and the freezing of assets. The Federal Court found, however, that
there was an exception to the travel ban and asset freeze when necessary for the
“fulfillment of a judicial process”. Citing Canadian case law, the Court ruled that
a “judicial process” was broad enough to include an extradition order or, in the
case at hand, a judicial order remedying a constitutional violation. Thus, the
Court’s final judgment required the Canadian government to not only issue a
travel document, but also ordered that Mr. Abdelrazik appear before the Court
and that the government arrange, and potentially pay for, transportation so that
Mr. Abdelrazik could return to Canada within 30 days. The Court retained
jurisdiction over the case to oversee the implementation of the judgment and
issue any further orders necessary to ensure Mr. Abdelrazik’s safe return to
Canada, but the matter was disposed of without any further substantive rulings:
on June 27, 2009, Mr. Adelrazik returned to Canada.
4. Issues: Inter-institutional GAL criticism and the emergence of horizontal review
As this and other similar cases establish, domestic courts have taken an active
role in reviewing individual cases affected by the operation of the Security
Council’s 1267 sanction regime. In Abdelrazik, the Canadian Federal Court found
that Canada could facilitate the return of its citizen without violating its
international commitments – and indeed was required to do so to remedy
constitutional rights violations. Although the Court strongly criticized the process
established by the Security Council, ultimately the case was resolved by
interpreting Canada’s international obligations in a way that allowed for an
effective remedy. Was the Court’s interpretation of the Security Council’s
resolutions correct, or did it gloss over some difficult points?
In similar cases before the United Kingdom and the European Court of
Justice, courts have directly reviewed and invalidated portions of national and
regional schemes implementing the 1267 sanctions. Although all of the decisions
clearly affirm the supremacy and binding nature of Security Council Resolutions,
the implications of these invalidations for the Security Council and national
compliance with international obligations have remained ambiguous. Is there any
reason why European courts might approach Security Council resolutions from a
slightly different perspective than Canadian courts? For the UK Supreme Court,
for example, the case squarely raised division of power questions, going not only
251
to the question of the appropriate role of the courts, but also the democratic
balance of power between the parliamentary and executive branches of
government. Consider the statement by Lord Hope at paragraph 45:
As Lord Brown says in para 194, the full honouring of these obligations [to
implement Security Council resolutions] is an imperative. But these resolutions are
the product of a body of which the executive is a member as the United
Kingdom’s representative. Conferring an unlimited discretion on the executive as
to how those resolutions, which it has a hand in making, are to be implemented
seems to me to be wholly unacceptable. It conflicts with the basic rules that lie at
the heart of our democracy.
After the UK and ECJ decisions were handed down, the European Court
of Human Rights decided Al-Jedda v. the United Kingdom, which dealt directly with
the interaction between Security Council resolutions and human rights
obligations. Could the Court’s statements at paragraph 102 – in which it held that
“there must be a presumption that the Security Council does not intend to
impose any obligation on Member States to breach fundamental principles of
human rights”, so that “[i]n the event of any ambiguity in the terms of a Security
Council Resolution, the Court must therefore choose the interpretation which is
most in harmony with the requirements of the Convention and which avoids any
conflict of obligations –be used as a basis for stronger judicial review of the 1267
sanctions regime at the domestic level?
Abusfian Abdelrazik launched a direct challenge to Canada’s
implementation of the 1267 sanctions regime shortly after his return to Canada.
On November 30, 2011, Mr. Abdelrazik was removed from the Security
Council’s list after he again petitioned for removal and the Ombudsman
supported his application. On January 17, 2012, the parties notified the Federal
Court that the court case had been resolved and that a Notice of Discontinuance
would be filed.
In June 2011 the Security Council issued Resolutions 1988 and 1989,
splitting the 1267 list into two – one targeting Al-Qaida and the other relating to
the Taliban. Members of the 1267 Committee have stated that Resolution 1989
strengthens the mandate of the Ombudsperson and enhanced the listing and
delisting process. Is this the case? How does the Resolution change the
procedures of the Committee? Have the decisions of the domestic and regional
courts had an impact on the revisions adopted by the Security Council? And will
the procedural changes introduced be sufficient to address the concerns that have
been raised by domestic courts?
252
5. Further Reading
a.
b.
c.
d.
e.
f.
E. BENVENISTI, “Bottom-Up Constitutionalization of International Law:
The Targeted Sanctions Regime as a Case Study”, 104 Am. Soc’y Int’l L. Proc.
462 (2010) 462;
E.A. DOSMAN, “For the Record: Designating ‘Listed Entities’ for the
Purposes of Terrorist Financing Offences at Canadian Law”, 62 U. Toronto
Fac. L. Rev. 2 (2004);
C. FORCESE, K. ROACH, “Limping into the Future: The U.N. 1267
Terrorism Listing Process at the Crossroads”, 42 Geo. Wash. Int’l L. Rev. 217
(2010),
J. GENSER, K. BARTH, “When Due Process Concerns Become Dangerous:
The Security Council’s 1267 Regime and the Need for Reform”, 33 Boston
College Int’l & Comp. L. R. 1 (2010);
A. TZANAKOPOULOS, “United Nations Sanctions in Domestic Courts:
From Interpretation to Defiance in Abdelrazik v. Canada”, 8 J. Int. Criminal
Justice 249 (2010);
G.L. WILLIS, “Security Council Targeted Sanctions, Due Process and the
1267 Ombudsperson”, 42 Georgetown J. Int’l L. 747 (2011).

The Casebook - Chapter 7

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