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[2010] COLR
Cork Online Law Review
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2010
[2010] COLR
Cork Online Law Review
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Board, Cork Online Law Review, UCC Accommodations Office, College Road,
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Email: [email protected]
This edition may be cited as [2010] COLR
© Cork Online Law Review 2010
2
[2010] COLR
Submissions
The Editorial Board of the Cork Online Law Review at University College Cork, Ireland,
would like to invite submissions for the 10th edition, due to be launched in March 2011.
All submissions should be on a legal topic, and be between 3,000 and 9,000 words in length.
Book reviews and case notes will also be considered.
The closing date for submissions is the: 12th December 2010.
All interested parties should submit their articles and enquiries to:
The Editor-in-Chief
[email protected]
3
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TABLE OF CONTENTS
Acknowledgements
Foreword
Editorial Board of the 9th Edition of the Cork Online Law Review 2010
1
Alternatives to Traditional Sentencing Methods – The Efficacy and
Constitutionality of Periodic Imprisonment in South Africa
Henry Rossouw.............................................................................................................10
2
The Criminal Justice (Surveillance) Act 2009: An Examination of the
Compatibility of the New Act with Article 8 of the European Convention
of Human Rights
John Barry....................................................................................................................26
3
Balancing Conflicting Interests during Pregnancy: Ultrasound v Reality
Anthanasia Hadjigeorgiou...........................................................................................42
4
In the Name of the Most Holy Trinity: Religious Anachronisms and the
Need for a Secular Constitution
Brian O‟Reilly ..............................................................................................................56
5
“The Perfect Storm” – Impact and Assessment of the Proposed Alternative
Investment Fund Managers Directive
Jennifer Hourihane......................................................................................................70
6
Designing Climate Change Law: A Comparative Analysis of the U.S.
and the E.U.
Glen Wright..................................................................................................................87
7
Scientific Uncertainty and the Precautionary Principle
Niamh O‟Sullivan.......................................................................................................114
8
Limiting the Potential for Bystander Apathy: On the Introduction of
a Duty to Rescue in International Law
Donna Lyons..............................................................................................................126
9
Rethinking the Mechanisms for Judgment Compliance in the Council
of Europe and Eliminating the “Legal/Political Gap.”
Anthanasia Hadjigeorgiou........................................................................................136
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Acknowledgements
The Editorial Board of the Cork Online Law Review wish to sincerely thank Dr Conor
O‘Mahony in the Law Faculty, University College Cork, for offering his continued guidance
and direction to the Law Review. Without his support this year‘s edition would not have been
a success. We also wish to extend our gratitude to the teaching and research staff of the Law
Faculty for reviewing articles shortlisted for publication. Their help and feedback has greatly
enhanced the professional standing of the Law Review since its foundation.
The Editor-in-Chief, in particular, would like to thank the Chief State Solicitor, Mr David
O‘Hagan, who was able to launch the 9th edition and the Attorney General, Mr. Paul
Gallagher SC, who wrote the foreword to this year‘s edition.
Last but not least, the Editorial Board wishes to express their gratitude to the law firm Arthur
Cox who generously sponsored this year‘s edition. In particular, the Editorial Board wishes to
acknowledge the guidance of Jane Babb who gave the Editorial Board invaluable information
on publishing and publicising the edition.
Hopefully, this edition builds on the achievements of past editions and that the Cork Online
Law Review will continue to go from strength to strength in the future.
Anna-Marie Brennan, BCL (Hons) (Law & Irish), LLB (Hons), LLM Candidate
Editor-in-Chief of the 8th and 9th Editions of the Cork Online Law Review,
March 2010
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FOREWORD TO THE NINTH EDITION
In Maguire v. Ardagh, Mr. Justice Hardiman said: ―I do not find appealing a line of argument
which sets up a distinction between a universally accepted state of fact in real life and a quite
contrary state of law.‖ It is indeed important that law, and analysis of the law, should be
rooted in reality. The articles in this Ninth Edition of the Cork Online Law Review reflect
this concern par excellence. The nine articles consider how to prevent human rights violation,
damage to the environment, crime and financial crisis and how to resolve legal problems
regarding pregnancy and religious belief. The disparate themes are united by a common
practical focus.
The approach taken to the resolution of a legal problem in a particular jurisdiction can
often spark debate in another. Noteworthy in this regard is the Edition's first article by Henry
Rossouw concerning periodic imprisonment – a phenomenon whereby a sentence which is
not mandatory can be served in short periods of time, for example on weekends. Rossouw
advocates a wider role for this sentencing option in South Africa than occurs at present. As
well as preventing the institutionalisation of prisoners, he argues that it promotes their rights
to dignity and has the potential to be economically efficient.
Moving from the punishment to the detection of crime, John Barry considers the
ECHR and surveillance. Describing the Criminal Justice (Surveillance) Act, 2009 as a major
development, he notes that prior to the Act certain Garda surveillance could have encountered
Convention difficulties on account of its lack of a legal basis. Nonetheless, Barry is critical of
certain aspects of the Act, such as the exclusion of cameras from the definition of
surveillance and the separate regime for tracking devices.
Anthanasia Hadjigeorgiou applies a philosophical overview of autonomy and
obligation to the practical context of difficult issues in pregnancy. Analysing whether a
pregnant drug addict ought to be punished for the death or injury of her child, she concludes
that punishment, rather than the provision of education and help, would serve the interests of
no one. She also proposes that once a competent patient provides a reason for refusing the
doctor's recommendation of a caesarean section such refusal ought to be respected.
The philosophical and practical are again mixed in Brian O'Reilly's argument for an
entirely secular Constitution in Ireland. Sketching the historical context of the religious
provisions in Bunreacht na hEireann, he argues that there is a difference between
constitutional neutrality as to religious belief and constitutional denial of such belief. He
singles out for criticism the Preamble and constitutional provisions providing variously for
the offence of blasphemy, oaths of a religious nature and the honouring of religion.
The crisis in global financial regulation forms the backdrop to Jennifer Hourihane's
assessment of the European Commission's proposed Alternative Investment Fund Managers
Directive. In the course of a detailed analysis she welcomes some aspects of the proposal
such as the cross-border passport, noting that it may bring about an EU-hedge fund brand, but
she stresses the need for proper account to be taken of the views of stakeholders.
Glen Wright examines how legal regulation can address a different topical and crucial
cross-border concern – namely the reduction of global carbon dioxide emissions. He
compares the EU's emissions trading scheme with the various regional arrangements entered
into among US States and Canadian provinces. Although he does not believe that either has
been overwhelmingly successful, the EU approach sets a good example and has better
prospects of success in his opinion.
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Environmental protection is also raised by Niamh O'Sullivan, noting as she does that
it gave birth to the precautionary principle in the EC Treaty. However she notes that with the
passage of time that principle has come to be applied more in the different area of human
health and safety. Examining the ECJ's approach to how much risk is or is not acceptable, she
observes that the precautionary principle appears to have been influential in at least one Irish
case, even if it was not expressly mentioned therein.
Donna Lyons examines the possibility of criminal sanctions for bystanders in the
event of mass atrocities, but argues that a UN Treaty declaring a duty to rescue would be
preferable. In an interesting psychological analysis, she notes that bystanders may often
interpret a human rights violation as legitimate because of official authorisation or the
ideological accentuation of differences. Where national legal systems have been uprooted, as
in instances of atrocities, she believes that international law can have an important role in
inculcating moral norms.
The importance of giving reality to legal protection is the underlying theme of
Anthanasia Hadjigeorgiou's second article in this edition, which concerns the Council of
Europe. She favours better cooperation with the EU and conferring standing on the European
Commissioner for Human Rights to lodge complaints to the Strasbourg Court. She also draws
on an interesting interview with a former judge of that Court.
I would like to pay tribute to the Editor Anna-Marie Brennan and the editorial
committee for their work on this Ninth Edition. I imagine that their task was Herculean in
light of the receipt of some 114 submissions emanating from five continents. The articles
selected for publication reflect the strong international dimension of those submissions. This
is particularly appropriate in the case of the Cork Online Law Review, the readily accessible
nature of which continues to permit particular scope for the free movement of ideas across
borders.
Paul Gallagher SC
Attorney General
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Editorial Board of the Ninth Edition of the Cork Online
Law Review 2010
Editor-in-Chief
Anna-Marie Brennan BCL (Hons) (Law & Irish), LLB (Hons), LLM Candidate
Deputy Editor-in-Chief
Julie Ahern BCL (Clinical) III
Ex-Officio
Rachel Hanly BCL (Hons), LLM (Hons)
House Style Editor
Samantha Ryan – BA, BProc, PDLaw, LLM Candidate, Attorney and Solicitor
Webmaster
Sinéad Heffernan BA (Hons), LLB (Hons), LLM (Criminal Justice) Candidate
Language and Article Editors
Barry Hennessy – BCL (Hons) (International), LLM Candidate
Alison Barry BCL (Law and French) 4
Recording Secretary
Aidan Burke – BCL (International) I
Public Relations Officer
Elisha McAuliffe – BCL II
Article Editors
Louise Forde – BCL (Hons), LLM (Criminal Justice)(Hons), LLM Candidate
Wayne Loftus – BSC (Hons), LLB (Hons), LLM Candidate
Cian O‘Sullivan – BCL (Hons), LLM. (Hons)
Aisling Sheehy LLB (Hons), LLM. (e-Law) Candidate
John Lombard LLB (Hons), LLM (e-Law) Candidate
Nicholas Liddane BCL I
Mark Scully BCL III
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ALTERNATIVES TO TRADITIONAL SENTENCING METHODS- THE EFFICACY
AND CONSTITUTIONALITY OF PERIODIC IMPRISONMENT IN SOUTH
AFRICA
Henry Rossouw *
ABSTRACT
This paper discusses the efficacy and constitutionality of periodic imprisonment as an
alternative to traditional, purely custodial sentences in the South African context. It is
submitted that periodic imprisonment is both effective when it comes to attaining the general
goals of punishment and also that it promotes a number of Constitutional rights, such as the
right to dignity is section 10 and the right not to be treated or punished in a cruel, inhuman
or degrading way in terms of section 12(1)(e). In the light of this, it is argued that courts
should look at applying periodic imprisonment as a sentence wherever possible and suitable,
and certainly more than is currently the case.
A
INTRODUCTION
The South African prison system, like many throughout the world, is a failing or failed
institution depending on how positive an outlook one chooses to adopt. Instead of being
bastions of rehabilitation and correction, prisons are often overrun by gangs.1 Some are
overcrowded and unsafe to the point of being constitutionally questionable.2 Furthermore,
prisons in South Africa play an increasingly diminishing role in ensuring that a prisoner is
any more able to operate in the outside world or that they will make any meaningful positive
contribution to the society upon release. It is for these reasons that alternative punishments
need to be used whenever possible, especially those that keep the offender out of prison.
This paper serves as an introduction to one such method: periodic imprisonment. This
is the process by which an offender who has committed a minor offence serves their prison
sentence in short stints, usually at the weekend only, allowing them to maintain their social
ties as well as any employment they might have, during the week. 3 The discussion focuses
first and foremost on the effectiveness of periodic imprisonment in the light of the
aforementioned goals of correction and rehabilitation, when compared to the more traditional
forms of punishment. Leading on from this discussion is a consideration of the
constitutionality of this form of punishment. Here, the impact of periodic imprisonment on
the right to dignity in section 10 of the Constitution and the right to freedom from cruel,
inhuman and degrading punishment in section 12(1)(e) will be explored. Indeed, despite the
*BBS in Management Studies with a Specialisation in Law from the University of Cape Town, South Africa.
1
Identified by the Judicial Commission of Inquiry into Allegations of Corruption, Maladministration and
Violence in the Department of Correctional Services (DCS), appointed in 2001, as one of the biggest problems
in South African prisons today, and one which is characterised by gaps in legislation and policy interventions.
See A Van der Berg ‗Summary and comment on the final report of the Judicial Commission of Inquiry into
Allegations of Corruption, Maladministration and Violence in the Department of Correctional Services: The Jali
Commission report‘ CSPRI Research Report 13 (2007).
2
E
Ellis
‗Jail
sentence
will
be
death
–
fraudster‘
IOL
News
<http://www.iol.co.za/index.php?art_id=vn20090531043324691C633392> (1 February 2010).
3
‗Minor offence‘ implies not subject to a minimum sentence in terms of the Criminal Law (Amendment) Act
1997.
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fact that this method may be lauded for its novelty and certainly for its potential efficacy, this
all means very little if it does not pass constitutional muster and would not survive if
challenged in court.
This paper is intended to provide a novel, thorough and cohesive introductory account
of this issue, suggesting that periodic imprisonment is both an effective and constitutional
alternative punishment method when it comes to minor crimes and that its application should
be much more widespread than it currently is.
B
PRISONS IN SOUTH AFRICA
The need for alternative sentencing methods to be used whenever necessary becomes clear
when one considers the dire state in which the current South African prison system finds
itself. If prisons are in such a bad state, and no longer fulfilling the purposes for which they
were introduced, it should be the aim of the judiciary during sentencing to send people there
only if absolutely necessary, especially when alternative methods do exist.
Originally, prisons were intended to serve a number of purposes: the punishment of
offenders, making society safer by removing dangerous individuals, deterring potential
offenders from committing crimes and rehabilitating and ‗correcting‘ offenders so that upon
release, they would lead productive, crime-free lives and contribute to society in a positive
way.4 However, the last one of these purposes has become increasingly overlooked and the
effectiveness of the first three has been brought into serious doubt in South Africa.5
In a country such as South Africa, literature and studies abound reiterating that the
thought of prison as a deterrent is quite impossible.6 With conviction rates as low as 6-18%
depending on the offence,7 potential offenders are certainly not going to be deterred from
committing a crime, if they know that they are unlikely to be caught. Even if they are caught,
they are unlikely to be prosecuted.8 Even if they are prosecuted there is the added problem
that life ‗inside‘ might actually be a better life for some than they would experience on the
'outside'. In South Africa, the average salary is around ZAR2500 per month9 and
4
M Sekhonyane, ‗Rehabilitation Starts with Alternatives to Prison‘ (2004) Crime Quarterly No 7
<http://www.iss.co.za/pubs/CrimeQ/No.7/Sekhonyane.htm> (1 February 2010).
5
See L Muntingh ‗Punishment and Deterrence: Don‘t Expect Prisons to Reduce Crime‘ (2008) Crime Quarterly
No 26 <http://www.iss.co.za/index.php?link_id=3&slink_id=7280&link_type=12&slink_type=12&tmpl_id=3>
(1 February 2010). He suggests that 200 years of history has shown that prisons do none of the three terribly
effectively; R Sommer The End of Imprisonment (Oxford University Press New York 1976) 171; A Liebling
and S Maruna (eds) The Effects of Imprisonment (Willan Books Cullompton 2005) 66.
6
See B Hudson Understanding Justice (2nd edn Open University Press London 2003) 24 for a detailed
discussion on why individual deterrence is not improved by sentencing measures; SS Terblanche The Guide to
Sentencing in South Africa (Butterworths Durban 1999) 179; D Beyleveld A Bibliography on general deterrence
(Ashgate London 1980); Blumstein et al (eds) Deterrence and Incapacitation (National Academy of Sciences
Washington 1978); S v Makwanyane 1995 2 SACR 1 (CC) 182; S v Skenjana 1985 3 SA 51 (A) 54I-55A; S v
Mhlakaza 1997 1 SACR 515 (SCA) 519g; S v Martin 1996 2 SACR 378 (W) at 385d; S v Sibeko 1995 1 SACR
186 (W) 191C-E; S v Mogora 1990 2 SACR 9 (T) 13i-j.
7
T Legget ‗South Africa‘s Conviction Rates in Perspective‘ (2003) Crime Quarterly No 5. Since 2003
conviction rates have only worsened. In 2007/08, the rate was 12.6% for murder and below 10% for most other
crimes
according
to
the
SAPS
annual
report.
<http://www.saps.gov.za/saps_profile/strategic_framework/annual_report/index.htm> (1 February 2010).
8
ibid.
9
R Burger and D Yu ‗Wage Trends in Post-Apartheid South Africa: Constructing an Earnings Series from
Household
Survey
Data‘
<http://www.reservebank.co.za/internet/Publication.nsf/LADV/C2B3236B2040DFF8422572250031AD86/$File
/LMFArt1Nov06.pdf> (February 2010).
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unemployment was at 23.6% in the second quarter of 2009.10 It is a sad but true indictment
on the desperate conditions in which a large percentage of the population lives, that the food
and shelter received inside a prison may actually be more than they would receive on the
outside. It is certainly not unheard of for people to commit offences in order to get into
prison for this reason. Once in prison, upon realising that their lives are, in fact, better than
before, the likelihood of reoffending upon release increases.11 It certainly becomes difficult,
when considering alternative sentencing methods in the context of such a collapsed society,
where going to prison (despite the inherent and serious problems which beset South African
prisons such as violence, intimidation, overcrowding and the risk of HIV infection) can be
seen by some as a positive thing. Clearly, prison should be a last resort; something to which
society only has to turn if all else has failed. However, in a situation where the society itself
is on the point of breaking down, this added problem certainly cannot be overlooked, as this
must also impact on the already waning deterrent effect of prisons.
It is a concern that it is not only the public perception of sentencing and prison in
general which holds that deterrence is still effective, but the judiciary are just as guilty of this
misconception. In the case of S v Visser,12 Van Heerden AJA for the majority notes: ‗ ... a
suspension of the entire period of periodical imprisonment would not serve as adequate
punishment for this appellant. Nor would it serve the deterrent purpose of sentencing, either
as regards the appellant or as regards other potential maintenance defaulters.‘13 The learned
judge is correct in asserting deterrence to be one of the purposes of sentencing, however it is
lamentable that, considering this case was decided as recently as 2004, the judge did not
suffix this statement with something alluding to the fact that sentencing has an ever
diminishing role to play in deterrence. That is not to say that there is no role at all for
deterrence when it comes to sentencing; indeed sentencing can still play a role in general
deterrence if it is fair and consistent.14 Unfortunately, this general deterrent at the sentencing
stage is weakened by the aforementioned problems of extremely low conviction rates versus
crimes committed. Furthermore, certain crimes will even continue to be committed inside the
prisons themselves, with assault, rape and drug dealing being the most commonplace.15
The problem of ‗institutionalisation‘16 has been much discussed in this context. This
refers to a process whereby both inmates and wardens become so used to their lives in prison
and their surroundings that they become a part of the system. They both know exactly what
is expected of them in terms of their functions and social roles. This means that prisoners
may go into prison feeling one way about themselves and their social role, but once they have
been inside for a while they are bound to think of themselves as prisoners and criminals,
incapable of reform. This has a considerably negative effect on any attempts at either
10
Statistics South Africa ‗Key Indicators‘ <http://www.statssa.gov.za/keyindicators/keyindicators.asp> (1
February 2010).
11
J Steinberg The Number - One Man's Search for Identity in the Cape Underworld and Prison Gangs
(Jonathan Ball Publishers Johannesburg 2004) 15.
12
S v Visser 2004 (1) SACR 393 (SCA).
13
ibid 13.
14
Terblanche (n 6) 178-185.
15
Steinberg (n 11).
16
E Goffman Asylums: Essays on the condition of the Social Situation of Mental Patients and Other Inmates
(Anchor Publishing New York 1961). See also JA Slosar Jr Prisonization, Friendship, and Leadership
(Lexington Books Lexington MA 1978) 3 where he describes the notion of prisoners going through the process
of ‗prisonization‘ whereby they start to form a completely alternate society from the outside world which
involves ‗the taking on in greater or lesser degree of the folkways, mores, customs and general culture of the
penitentiary.‘
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restorative justice or rehabilitation and leads to offenders leaving prison maladjusted to life
on the outside.17
Researchers such as Goffman have pointed out that prisons themselves have become
‗universities of crime.‘18 This is especially true of South African prisons, beset with
numerous prison gangs.19 Offenders may enter the prison having limited criminal acumen,
however upon leaving they will have gained significant additional insight into criminal life as
well as a broadened network of criminal contacts. This may in fact lead them to be more
inclined to commit crimes than would otherwise have been the case.20 This makes a mockery
of the idea of prisons as centres of rehabilitation and correction, explicitly stated in the Draft
White Paper on Corrections 2003 as the central goal of prisons in South Africa.21
Furthermore, in criminological terms, despite the awful conditions experienced inside
South Africa‘s prisons, for some members of society, prison is a place where they can
experience things which they simply cannot on the outside. Joining a gang, for example,
brings respect, power and authority – things which many of the most vulnerable and poor
members of society (who constitute the majority of prisoners) may never experience on the
outside; 22 although it must be said that, especially in the Western Cape, the opportunities to
join gangs would exist outside prison as well. However, at least on the outside there are other
distractions and activities which might lead a potential gang member away from joining a
gang. Inside prisons, especially in South Africa, there is very little else for a prisoner to do,23
to the point that it is also quite likely that South African prison conditions would likely not be
deemed constitutionally acceptable were they to be put under scrutiny. 24 Forced labour is no
longer permitted in South African prisons.25 Furthermore, voluntary remunerated labour is
thin on the ground, mainly due to lack of infrastructure, logistical boundaries and security
concerns.26 It is in this regard that recidivism comes into play. The ‗revolving door
syndrome‘ refers to the situation where offenders are let out, only to recommit crimes,27
either due to their newly acquired criminal acumen or in order to return to the ‗safe‘ and
familiar surroundings of the prison they have started to call home, or as a result of a
combination of both.28
17
Goffman (n 16); S Maruna and R Immarigeon (eds) After Crime and Punishment: Pathways to Ex-Offender
Reintegration (Willan Books Cullompton 2004) 3-7; Liebling (n 5) 33-40; Sommer (n 5) 172.
18
Goffman (n 16).
19
Steinberg (n 11); Van der Berg (n 1).
20
Goffman (n 16).
21
Draft White Paper on Corrections in South Africa
<http://www.info.gov.za/view/DownloadFileAction?id=68776> (1 February 2010).
22
S Pennington Action for a SAFE South Africa <www.safesouthafrica.org.za> (1 February 2010).
23
J Steinberg ‗Prison Overcrowding and the Constitutional Right to Adequate Accommodation in South Africa‘
<http://www.csvr.org.za/docs/correctional/prisoncovercrowding.pdf> accessed 1 February 2010; See also A
Dissel,
‗South
Africa's
Prison
Conditions:
The
Inmates
Talk‘
<http://www.csvr.org.za/wits/papers/papinmat.htm> (1 February 2010).
24
Steinberg (n 23) 3.
25
L Muntingh ‗Prisons in South Africa's Constitutional Democracy‘ (2007)
<http://www.csvr.org.za/docs/correctional/prisonsinsa.pdf> (1 February 2010).
26
Dissel (n 23) 3. A prisoner comments, ‗At the moment I am just sitting doing nothing. I applied for work in
the prison, but the Board told me that I can't work because I am serving a long sentence‘ Steinberg (n 23) 2.
27
Popularised by the 1988 United States Presidential Campaign advertisement; T Palmer The Re-Emergence of
Correctional Intervention (Sage Publications California 1992) 2.
28
Dissel (n 23) 3. The comments of the prisoners perfectly express this issue, ‗I don't do anything. We don't
have work here, there is no trade. We must learn something here so that when we leave we don't go back to car
hijacking ... I have learned nothing in prison: only how to kill people; how to stop an alarm; how to steal a car nothing I can teach a person. Most prisoners talk about how to commit another crime.‘
13
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It is therefore essential that offenders are kept out of the cycle of prison life as much
as possible. The Society for a Safe South Africa Initiative29 advocate early intervention into
the lives of vulnerable people who are more likely to grow up to be offenders. 30 Periodic
imprisonment is one way of keeping them out of the institutionalisation of prison; hopefully
long enough for them to change their ways.
In terms of the prisons themselves, it seems trite to mention the appalling state of
most of South Africa‘s prisons.31 Understaffed, to the effect of one warden to 100 inmates in
the case of prisons, like Pollsmoor in Cape Town,32 and effectively underfunded and underresourced, prisons have become the playground of prison gangs, for it is they who really
control many prisons, not the wardens.33 It is important to note in this regard that
Correctional Services gets a very large budget allocation,34 however it does not seem to filter
down to actual prison services or staff. It would seem, lamentably, that the majority is still
being spent on the construction of new prisons and it will always be possible to fill more and
more prisons.35
The threat of HIV infection from rape whilst in prison has even led the Australian
High Court to dismiss the extradition of an accused to South Africa, as this would amount to
cruel and inhuman punishment as the likelihood of becoming infected with HIV would be too
high.36 Add to this the further findings of the ‗Jali Commission‘ regarding overcrowding,
deaths in prison and lack of basic hygiene and exercise and it is clear to see just why people
should be kept out of prison as much as possible. 37
C
PERIODIC IMPRISONMENT
With the prison system in such a poor state, people should be kept out of prison as much as
possible. Alternative sentencing methods are one way of contributing towards this goal and
periodic imprisonment is one such method, unfortunately this is often overlooked by the
courts.
Periodic imprisonment is a form of imprisonment requiring the detention of prisoners
for a short period of time only (usually 24-48 hours at a time).38 This has tended to occur on
weekends, causing periodic imprisonment to be thought of as ‗weekend imprisonment‘.
However, imprisonment may take place at any time during the week. 39 Section 285 of the
29
Pennington (n 22).
It is not easy to predict exactly who will grow up to become a criminal, however, the Cycle of Crime and
Violence Model is a useful tool in identifying those most vulnerable people who are more likely to get drawn
into the criminal world due to their backgrounds and generally dysfunctional family situations.
31
See Judicial Commission of Inquiry into Allegations of Corruption, Maladministration and Violence in the
Department of Correctional Services (n 1); GM Ferreira and M Steyn, ‗The limitation of fundamental rights by
imposition of sentence‘ (2006) 21 SAPR 96 for a more detailed discussion of the dire state of South Africa‘s
prisons.; Steinberg (n 23) 3-6; L Muntingh ‗The Numbering of Days. Sentencing and Prison Population Growth
(2007) 20 SACQ 21; Steinberg (n 11); Steinberg (n 23).
32
According to a 2002 Law Society Human Rights probe which found Pollsmoor to be the worst prison in the
country. See R Kendal ‗Inside Pollsmoor: The Grim Reality‘ <http://news.iafrica.com/features/958657.htm> (2
February 2010).
33
M Minnie A Prins and E Van Niekerk ‗The Role of Prison Gangs as Precipitating the Spread of HIV/AIDS in
South African Prisons with Special Emphasis on Socio-Cultural Factors‘ (2002) 15 Acta Criminologica 51.
34
B Balfour ‗Budget Vote Speech‘ (Speech by the Minister of Correctional Services at Parliament Cape Town
18 May 2007) <http://www.info.gov.za/speeches/2007/07052210451002.htm> (2 February 2010).
35
Steinberg (n 23) 19.
36
Ellis (n 2).
37
Van Der Berg (n 1) 46.
38
JJ Joubert Criminal Procedure Handbook (8th edn Juta Cape Town 2007) 293.
39
ibid.
30
14
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Criminal Procedure Act40 states that a court may order a sentence of periodic imprisonment
for any offence other than one for which any law provides a minimum punishment.41 This
may be in lieu of any other punishment and must be for not less than 100 hours and not more
than 2000 hours.
This form of punishment has existed in our law since 1959, 42 and ever since has been
praised for still having a punitive element, but not disrupting the family and or work life of
the prisoner.43 Courts have since been prompted to use it as much as possible,44 yet in
practice it seems it is only applied very occasionally. Whilst it is available for all crimes with
no minimum sentence attached, courts generally seem to make use of it in cases of unpaid
maintenance claims,45 and the very occasional minor traffic offence case.46 This paper will
only consider periodic imprisonment as it may apply to adult offenders.
D
MEASURES OF SUCCESS
Periodic imprisonment‘s success in South Africa is somewhat difficult to measure. As
mentioned above, South African courts have been reluctant to impose this sentence, even
when it was applicable, which has led to a dearth of statistical data on the subject.
Comparative data from the UK, where ‗open imprisonment‘ as it is called, has experienced a
measure of success, can be considered. However, the UK has more differences than
similarities when compared to South Africa, especially when it comes to socio-economic
issues and constitutional law. In this regard, this data should merely serve as an indicator of
possible success and is by no means conclusive in the South African context.
In terms of measuring its success, the aforementioned purposes of imprisonment in
general should be considered: punishment, rehabilitation, correction and prevention or
reduction of recidivism. For the purposes of this paper, recidivism can be read simply to
mean re-offending, that is the commission of further crimes once having been released from
prison.47 The statistics currently available from the South African National Institute for
Crime Prevention and the Reintegration of Offenders (―NICRO‖) do not specifically detail
recidivism of prisoners who underwent periodic imprisonment.48 However, NICRO
programmes such as their 'Tough enough' scheme,49 have as their goals the reduction of
recidivism,50 and promote the same measures which seek to ensure better offender
reintegration with the community as periodic imprisonment.51 It can thus be inferred that
40
Criminal Procedure Act 1997.
In terms of the Criminal Law (Sexual Offences and Related Matters) (Amendment) Act 2007.
42
Criminal Law (Amendment) Act 1959.
43
Joubert (n 38) 293.
44
S v Botha 1970 (4) SA 407 (T).
45
S v Visser (n 12).
46
Rweqana v S (CA&R 154/07) [2009] ZAECGHC 28.
47
See A Vass Alternatives to Prison: Punishment, Custody and the Community (Sage Publications London
1990) 86-102 for a detailed discussion on the distinction between recidivism and desistance.
48
See National Institute for Crime Prevention and the Reintegration of Offenders <www.nicro.org.za> (2
February 2010).
49
D Lomofsky and G Smith ‗Final Report. Impact Evaluation of the Tough Enough Programme‘ an impact
evaluation prepared by Southern Hemisphere Consultants August 2003 <http://www.nicro.org.za/publications/>
(2 February 2010).
50
Lomofsky and Smith (n 49) 14.
51
Lomofsky and Smith (n 49) 2. The goals of strengthening and maintaining family and friend ties, enabling
personal and economic empowerment and dealing with or preventing stigmatisation are all also likely to result
from a sentence of periodic imprisonment. These aspects are discussed in more detail below.
41
15
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periodic imprisonment would likely have similar effects on recidivism rates as these
programmes.
In terms of the scope of the sentence, it is necessary to consider just what crimes
could fall within its ambit. Crimes to which no minimum sentences are attached are
relatively minor in nature and generally non-violent; typically, failure to pay maintenance,52
traffic violations, driving under the influence offences,53 have been considered as suitable for
periodic imprisonment sentences.
The argument can certainly be made for the more widespread use of periodic
imprisonment for a number of other, still minor, crimes. The fact that periodic imprisonment
can, in fact, be prescribed for any crime which does not have a prescribed minimum sentence
attached is something worth noting. There seems to be no reason for the courts not to
consider this sentence when dealing with other crimes falling within its ambit, other than the
typical maintenance claims and minor traffic violations and it is proposed that the courts
should indeed be encouraged to consider it whenever possible.
E
EMPLOYMENT RELATIONSHIPS
Periodic imprisonment represents a departure from perceptions of traditional sentences, and
as such has different consequences for the relationships between employed prisoners and
their employees. Under a normal custodial sentence, a prisoner would presumably simply
lose whatever employment they had at the start of their incarceration. Periodic imprisonment
can be used to prevent this being the norm. Not only is this economically sound but it also
promotes various constitutional rights of the prisoner, such as the right to dignity in section
10 of the Constitution.54
It is clear that requiring incarceration of a prisoner over the weekend only will have a
profound effect on maintaining that person‘s family ties whilst serving the sentence. This is
certainly commendable and necessary when it comes to minor crimes, and will be discussed
in more detail below. However, periodic imprisonment could also serve to preserve a
prisoner‘s work relationships. In a country with an unemployment rate varying between 24%
and 70% depending on industry and location,55 it is surely a good idea to attempt to allow
those that have jobs the opportunity to preserve them. This becomes paramount in a system
where remunerated voluntary prison labour simply does not exist, either due to logistical and
budgetary constraints or security concerns.56
At first glance, it may seem that there are some obvious problems with the idea of a
prisoner enjoying the luxury of having his or her employment protected to a certain extent.
The person whose job is being protected by only having to go to prison at the weekend, is,
after all guilty of a crime. From experience, this is likely to prove unpopular in terms of
public perception: the general public are still focussed on sentences being purely punitive and
do not take the time to consider what is to become of prisoners upon release.57 Surely there
52
S v Visser (n 12).
Rweqana v S (n 46).
54
This is discussed in detail below.
55
Statistics
South
Africa,
‗Quarterly
Labour
Force
Survey.
Quarter
1.
2009‘
<http://www.statssa.gov.za/publications/P0211/P02111stQuarter2009.pdf> (2 February 2010).
56
Dissel (n 23) 6.
57
M wa Mogoeng ‗Does the South African Judiciary Protect the Rights of the Victims and of the Offenders
Through the Available Sentencing Options?‘ (Key note address by the Judge President of the Mafikeng High
Court, Magoeng wa Magoeng on Human Rights Day Potchefstroom South Africa 21 March 2006)
<www.iss.co.za> (2 February 2010); M Schönteich, 'Sentencing in South Africa: Public Perception and Judicial
53
16
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should be more focus on attempting to reform and rehabilitate prisoners so that they do not
reoffend? Public buy-in in this regard will likely be difficult to obtain.
A number of factors speak in favour of periodic imprisonment in this regard and
against the likely public perception backlash. Firstly, the crimes for which periodic
imprisonment may be imposed are minor and typically non-violent in nature. As such, the
offenders will, for the most part, be petty, first time offenders (If this is not the case, the court
will surely take this into account during sentencing and tend away from periodic
imprisonment in any case according to the sentencing guidelines in the Criminal Procedure
Act). It is essential that they be given every opportunity to lead a life free of crime. The fact
that they already have a job, arguably shows a commitment of some kind towards living an
upstanding life and contributing to society, although clearly the opposite could also be
argued: the fact that even with a job a person still does not desist from crime could show a
disregard for law-abiding behaviour. It is nevertheless particularly these people, some of the
more vulnerable in society, but nevertheless with the potential for rehabilitation and reform,
which this measure correctly seeks to target. This is not to say that employment should be
seen as a prerequisite for a sentence of periodic imprisonment, and it is submitted that nor
should it be. Indeed, the courts have only taken employment into account when it comes to
imprisonment being for periods shorter than 24 hours.58
Instead, employment status should remain as it is now, a consideration of which the
court may take note, if the circumstances require when imposing sentence. 59 For example,
when it comes to a maintenance claim (or any other claim involving the failure to pay a debt
of some kind), it would seem illogical to require a person guilty of not making a monthly
maintenance payment to go to prison for an extended length of time; during this time they
would most likely have to give up any work which they might have had and certainly would
be unlikely to be able engage in any kind of remunerated work whilst in prison serving the
sentence. This can only further exacerbate the problem of lack of maintenance forthcoming.
If, on the other hand, periodic imprisonment were applied in this circumstance, then the
prisoner could continue to work or at least seek work during the week, which would enable
regular maintenance payments, whilst still having the punishment aspect of the sentence
fulfilled by having to go to prison at the weekend.
Certainly, in the light of the current economic climate, with South African officially
in recession for a large part of 2009,60 it could be argued that any measure that keeps people
in jobs, contributing to the economy and enabling them to take care of their family and
themselves should be praised and implemented as much as possible.
F
ATTITUDES OF EMPLOYERS AND PUBLIC BUY-IN
Thus far, the merits of periodic imprisonment have all been considered in a one-sided
manner, from the perspective of the prisoner. However, one must also consider the other side
of the coin. Assuming the prisoner is currently employed and receives a sentence of periodic
imprisonment, the role of his or her employer must not be forgotten. Will the average
employer be happy to have someone continue to work for them, who they know is still
serving their sentence for a crime they have committed (even a minor one)? Under what
Process' (1999) 43 Institute for Security Studies; Pennington (n 22) 31; J Wood and T Gannon, Public Opinion
and Criminal Justice (Willan Publishing London 2008) 167.
58
S v Visser (n 12) 7.
59
Terblanche (n 6) 227.
60
T Timse ‗South Africa enters Recession as Economy Shrinks‘
Yahoo! News,
<http://uk.biz.yahoo.com/26052009/323/south-africa-enters-recession.html > (2 February 2010).
17
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obligations are the employers to keep employing this person? Legally, employers are no
more or less obliged to continue to employ such a person than they are to employ anyone
else. Morally, there may be other issues that come to the fore. Once a person has served
their time under a normal custodial sentence, they are meant to be treated as any other person,
having served their debt to society and even hopefully having undergone some form of
rehabilitation while inside. While this may not actually be the case in practice, it might be
asking a lot of employers to be expected to continue to employ someone who is still actively
serving their sentence and has not gone through the above process. One would think that this
would depend on the type of crime that was committed and if it at all played any role in that
person‘s job as well as the employer's own commitment to the inherent value of the concept
for his employee and his employee's family.
Following on from this are concerns of public perception and buy-in on a larger scale.
The South African public tends to be reactionary and is obsessed by a notion of punitive
justice.61 Once a crime has been committed, the person guilty of that crime should be
punished. This punishment should entail a traditional prison sentence: the longer the better.
Rehabilitation is not a concern here. As it is, public perception is that courts generally hand
down sentences which are too lenient and that prisoners are not punished adequately, 62
highlighted by the fact that were it to be put to referendum, the majority of South Africans
would vote for the reinstatement of the death penalty;63 despite the decision in S v
Makwanyane.64
As such, the question remains, just how would the public react to more sentences of
periodic imprisonment being handed out? It is likely that the reaction would not be positive,
given the aforementioned attitudes. However, there are a number of points that can be raised
to counter this argument. First of all, the idea of a representative democracy such as South
Africa‘s is that people are voted into positions of power to make decisions on the electorate‘s
behalf, because these representatives are more experienced and have more knowledge and
expertise when it comes to important matters (like the death penalty).65 For this reason,
although public perceptions should always have a role to play in a participatory democracy,
too much power should not be vested in them.
Secondly, periodic imprisonment still has a strong punitive aspect – going to prison
every weekend for several months is certainly not going to be a pleasant experience. It is
hoped that this reality, coupled with the fact that it only applies to crimes with no prescribed
minimum sentence, will serve to appease the public‘s concerns that this measure is somehow
a ‗soft‘ one. This needs to be reinforced by a long-term commitment from the relevant
authorities to show the public the positive effects in some kind of meaningful and ongoing
manner – proper information can change minds.
G
LOGISTICAL AND BUDGETARY ISSUES
In terms of budgetary issues, as mentioned above, despite the criminal justice system itself
not being underfunded at all per se,66 much-needed funds do not filter down to the staffing
61
Schönteich (n 57).
ibid.
63
ibid. See also S Tau ‗Death Penalty Put on the Table‘ The Citizen (South Africa 3 June 2008)
<http://www.citizen.co.za/index/article.aspx?pDesc=59763,1,22> (2 February 2010).
64
S v Makwanyane (n 5).
65
It is interesting to note that in Makwanyane, when it came to deciding whether or not to allow the death
penalty, it was the unelected judiciary and not elected leaders who took the final decision.
66
Balfour (n 34).
62
18
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and running of prisons themselves. In this regard, any proposed sentencing measure should
be as less resource-intensive as possible. In the same vein as correctional supervision,67
periodic imprisonment programs would likely need some sort of support personnel, similar to
parole officers, to ensure that prisoners go into prison at the designated times and to complete
the necessary administration. Further resources should not then be necessary, which would
mean that a sentence of periodic imprisonment would actually free up much needed space
and resources inside a prison during the week, and when the prisoner completes his sentence
at the weekend, the prison‘s resources will be no more strained than they would have been
under a traditional custodial sentence.
Certainly, one has to consider potential issues of flight risk and the resources that
would be necessary to cope with this eventuality. However, this same problem exists with
people undergoing correctional supervision, which can be for more serious crimes than the
crimes for which periodic imprisonment may be awarded. Furthermore, due to the minor
nature of the crimes involved, as well as the fact that the whole idea behind the sentence is to
insure that the prisoner maintain ties with the community, family, friends and employers, it is
unlikely that these prisoners present a huge flight risk.
H
THEORY VERSUS PRACTICE
Since periodic imprisonment as an alternative sentence has been in existence since 1959 in
South Africa, it is amazing that it has been so little utilised. In this regard, the Judge
President of the Mafikeng High Court provides an enlightening look into why the practical
reality of the use of alternative sentencing methods differs so greatly from its theoretical
underpinning in his keynote address on Human Rights day in 2006.68 Interestingly, Mogoeng
Wa Mogoeng starts off by lamenting the South African public‘s mindset which ‗betrays an
"addiction" to retribution.‘69 He believes that the causes for this attitude can be traced to inter
alia the media‘s lopsided awareness campaigns and government officers (not members of the
judiciary) who make promises of tougher sentences to the public even before cases have
started.70 This then leads to the public becoming misinformed and misguided.
Mogoeng JP even goes so far as to suggest that this mindset influences judges when
deciding on sentencing. It is suggested that judges sometimes choose to give normal
custodial sentences so as not to be seen as insensitive to angry victims or even possibly
corrupt.71 It seems that this is a response to the beliefs held by many members of the public
that the legal system is set up in a way which favours the criminal far too much - this ‗penal
populism,‘72 assuming it exists, would certainly be addressed by the judiciary approaching
sentencing in this manner. However, this is quite a worrying proposal: not only does it go
against the idea of the impartiality of the judiciary (or at least the idea that the judiciary
should decide cases according to the law and not the public's or their own sentiment) but also
because when considering periodic imprisonment the crimes dealt with will necessarily be of
67
Often similar to being out on parole, with aspects of community service and characterised by no prison time at
all.
68
wa Mogoeng (n 57).
69
ibid 2.
70
ibid.
71
ibid 3.
72
See J Pratt Penal Populism (Routledge London 2006) 8 for a description of what this term means; A Freiberg
and K Gelb (eds) Penal Populism Sentencing Councils and Sentencing Policy (Willan Publishing London 2008)
15-31 for a description of the role of public opinion in sentencing across various jurisdictions; J Roberts et al
Penal Populism and Public Opinion: Lessons from Five Countries (Oxford University Press Oxford 2003) 2135.
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[2010] COLR
a minor nature; a factor of which the judiciary will hopefully take note. Mogoeng JP goes on
to suggest a broad mindset change among the public is necessary; the public need to
understand that they are allowed to vent their anger through protest action and other means
but they should not have any bearing on the sentence arrived at by the presiding officer.73
This would then be more likely to ensure that the public is more prepared for the verdict and
also preserve the court‘s integrity when it comes to protecting the rights of the offender as
well as the victim of a crime. Unfortunately, this will never be popular with politicians;
punitive justice and a promise of tougher sentences will always win many votes quickly.
Interestingly, in Mogoeng JP‘s discussion of the various alternatives to traditional
custodial sentences, periodic imprisonment is mentioned very briefly. This fact in itself goes
to highlight the concerning underuse of this method. A further key point which the learned
judge makes is that when it comes to sentencing procedures, not only are judges affected by
the public‘s ‗obsession‘ with retribution but they also lack basic understanding of how
measures like periodic imprisonment work in practice. This makes them even less likely to
grant their order.74
Mogoeng JP‘s proposals for reform align with the work of other researchers and
academics in the field: a paradigm shift is needed when it comes to sentencing procedures. 75
All branches involved, but especially the judiciary, need to be workshopped and taught the
purpose of and need for restorative justice.76 In this way, judicial officers will be able to
reacquaint themselves with these alternative methods, including periodic imprisonment, and
thus be much more likely to actually make use of them when handing out sentences in the
future. This will ensure the necessary protection of the rights and interests of the victim, the
accused and the community. It is of equal importance to get buy-in from the executive itself,
for it is they who will be tasked with running the necessary infrastructure.
One concern expressed especially about periodic imprisonment is that due to the small
number of cases which will fall under its ambit (those with no prescribed minimum sentence)
it will affect such a small number of people that its efficacy and constitutionality become
almost moot, as in the greater scheme of things, it will not have vast, measureable benefits for
society or prisoners on the whole. Drawing again on the research of the Action for a Safe
South Africa Initiative, despite the fact that their approach centres around crime prevention
and not crime reduction or containment, their strategy contains worthy ideas of early
intervention into potential offenders‘ lives in order to stop them later becoming criminals.
Once someone has reached the point where periodic imprisonment is being considered,
prevention methods are only appropriate in terms of preventing further offending. However,
it is important, especially for people guilty of minor crimes, that they are not immediately
cast into the prison system, from which they may never escape, and are instead given every
opportunity to avoid prison and still go on to lead fulfilling, law-abiding lives. In this regard,
preventing prisoners from becoming institutionalised at the first possible stage is integral.
Currently, the trend in South Africa is simply to punish the offender. Minor crimes result in
shorter sentences of imprisonment but they are sentences nonetheless; they carry with them
the same negative consequences that longer sentences of imprisonment do. Instead of this,
periodic imprisonment gives the judiciary the discretion to prevent a minor offender
becoming institutionalised and falling prey to the prison system.
73
wa Mogoeng (n 57) 3.
ibid.
75
B Meier ‗Restorative Justice - A New Paradigm in Criminal Law?‘ (1998) 6 European Journal of Crime
Criminal Law and Criminal Justice 125; Pennington (n 22) 40; I Brownlee Community Punishment: A Critical
Introduction (Longman London 1998) 35; A Snare (ed) Beware of Punishment: On the Utility and Futility of
Criminal Law (Pax Forlag Oslo 1995) 33.
76
wa Mogoeng (n 57) 12.
74
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I
CONSTITUTIONALITY
In the post-1996 constitutional era, it is essential that any sentencing method be scrutinised as
to its constitutionality. It must be ensured that the measure would survive a constitutional
challenge on the basis of any constitutional rights being infringed. Also, importantly, if the
method promotes any rights, then these should be celebrated.
J
RIGHT TO DIGNITY
The right to dignity in section 10 of the Constitution which simply reads 'Everyone has
inherent dignity and the right to have their dignity respected and protected' is also in the
Table of non-derogable rights in the Bill of Rights. The recognition of this right has been
consistent in many cases on this issue.77 Importantly, in the seminal case on the punishment
of prisoners, S v Makwanyane,78 the Constitutional Court stated that the rights to life and
dignity are the two pre-eminent rights which must be ‗demonstrated by the state in everything
it does, including the way it punishes criminals.‘79
Periodic imprisonment helps protect the prisoner‘s right to dignity in section 10 of the
Constitution by preventing that person from being detained for long periods in prisons. The
poor conditions of South African prisons make any custodial sentence more severe than
would otherwise be the case. The proportionality principle,80 also known as the idea of just
deserts,81 attempts to ensure that like cases are treated alike and that the punishment fits the
crime. In order for a custodial sentence not to be disproportionately severe when compared
with the seriousness of the offence, periodic imprisonment should be relied upon more.
If this is done, the right to dignity in section 10 and the right not to be treated or
punished in a cruel, inhuman or degrading way in terms of section 12(1)(e) would both be
protected. It is conceded that periodic imprisonment, by its very nature, still requires the
offender to spend time in prison, subject to just these potentially unconstitutional
conditions,82 however, this time is limited and the intervals between the periods should help
to ensure that the prisoner does not become ‗institutionalised‘83 to any great extent as well as
limiting the infringement of that person‘s constitutional rights and ensuring that the
disproportionate relationship between crime and punishment is kept to a minimum.
77
President of the Republic of South Africa v Hugo 1997 (4) SA 1; Ferreira v Levin NO 1996 (2) SA 621 (CC);
S v Makwanyane op cit (n5); Dawood and Another v Minister of Home Affairs and Others 2000 (3) SA 936
(CC).
78
S v Makwanyane (n 5).
79
ibid 144.
80
A Ashworth Sentencing and Criminal Justice (4th edn Cambridge University Press Cambridge 2005) 102;
Terblanche (n 6) 168.
81
See A Ashworth ‗Distangling Disparity‘ in D Pennington and S Lloyd-Bostock (eds), The Psychology of
Sentencing: Approaches to Consistency and Disparity (Centre for Socio-Legal Studies, Oxford 1987) 24-25 for
a discussion of this and J Braithwaite and P Pettit Not Just Deserts: A Republican Theory of Criminal Justice
(Oxford University Press Oxford 1990) for an interesting counter-point to this theory.
82
This paper does not allow the scope for a detailed discussion on the potential unconstitutionality of any
custodial sentence due to the dire state of South African prisons. For a detailed look at this aspect see Y Bass
‗Imprisonment in Crisis: Do the Current Realities of Violence and Overcrowding in Prisons in South Africa
Render the Sentence of Imprisonment Unconstitutional on the Basis of a Violation of Dignity and the Right not
to be Subjected to Cruel and Inhuman Punishment‘ (LLB Dissertation University of Cape Town 2009).
83
Goffman (n 16).
21
[2010] COLR
Tied in with the right to dignity is the section 12(1)(e) right of freedom and security of
the person. In this regard, everyone has the right not to be treated or punished in a cruel,
inhuman or degrading way. Importantly, despite what the public perception might be,
prisoners are not merely equally entitled to this right, but it is even more relevant to prisoners,
as they are the ones who are actually being punished.84 As was held in S v Dodo,85 the
deprivation of liberty is the extent of the punishment which prisoners are meant to suffer –
once that has been achieved, the 'residuum principle' applies: 86 prisoners are entitled to all the
rights of any other person which do not need to be curtailed as a direct result of
imprisonment, including, however controversially, the right to vote.87
In terms of what qualifies as cruel, inhuman and degrading, the court in S v Williams
states that this must be viewed objectively in the context of the times, 88 and that the State
must be foremost in upholding this.89 The court in S v Dodo90 states that all three forms,
cruel, inhuman and degrading punishment entail the denial of dignity.
In the light of the aforementioned rights, it could be argued that prison conditions in
South Africa are unconstitutional. Indeed, as mentioned in a previous section, in a recent
Australian case a man was not extradited to South Africa to face charges and prison time
here, because the court found that the conditions in prison and the chances of being infected
with HIV meant that such a finding would amount to cruel and inhuman punishment.91
Prisons are rife with problems of sexual abuse, violence and overcrowding;92 this is
well-known and is something of which judges should already take note when considering
what sentence to hand down.93 These conditions can lead at least to custodial sentences being
disproportionate to the crimes for which they are handed down.
The mere fact that the argument could be made for the unconstitutionality of prison
conditions in South Africa,94 and the undeniable reality of the inadequacy of the conditions
certainly gives weight to the fact that judges should consider sentences that avoid prison
detention as much as possible. In this regard, it is conceded that periodic imprisonment still
contains an element of imprisonment which cannot be avoided. As such, the constitutional
rights of the prisoner are likely to be infringed to some extent. One must however adopt a
pragmatic approach in this regard: prisons are likely to be with us for a long time to come,
thus any proposed measures should not sacrifice their practicality in favour of being groundbreaking or revolutionary.95 Taking a pragmatic approach to this problem, in the light of the
current situation, it is surely better to have these infringements limited where possible,
despite not being able to exclude them altogether. Indeed, increased use of periodic
imprisonment could actually contribute to lessening over-crowding. This would go a long
84
After all, a society can be judged by the way it treats its prisoners; an oft-used quote usually attributed to
Winston Churchill in 1910 cited in <http://www.highbeam.com/doc/1G1-93025869.html> (2 February 2010).
85
S v Dodo 2001(5) BCLR 423 (CC).
86
Muntingh (n 25) 9; Steinberg (n 23) 25.
87
Confirmed in August and Another v Electoral Commission and Others 1999 (4) BCLR 363 (CC) and Minister
of Home Affairs v National Institute for Crime Prevention (NICRO) 2004 (5) BCLR 445 (CC).
88
S v Williams 1995 (7) BCLR 861 (CC).
89
ibid 35.
90
S v Dodo (n 86) 35.
91
Ellis (n 2).
92
Van den Berg (n 1).
93
Despite not being an official consideration during sentencing. See Terblanche (n 6) 222-234 for a detailed list
of factors which the court should consider in mitigation of sentence.
94
Bass (n 83).
95
See Sommer (n 5) 172. Despite his book being promisingly entitled The End of Imprisonment, even he makes
absolutely clear that by this he concedes that detention will always be necessary in some form, however, current
norms of imprisonment should be questioned and reconsidered.
22
[2010] COLR
way to improving prison conditions, ensuring that constitutional rights are not infringed and
bringing more proportionality between the crime committed and the prescribed punishment.
Another argument can be made for the protection of the right to dignity. There is the
dignity of the prisoner to consider in terms of their not having to go into prison for an
extended stay. The fact that the prisoner is allowed to keep family and even work ties intact
whilst going to prison for short periods, generally at the weekends, greatly enhances the
chance that they will not become institutionalised and dehumanised whilst inside. For
example, instead of having to go into prison for six months in a row, for a minor offence of
some kind, and having to lose whatever employment they might have, as well as the ability to
provide for their family, the prisoner‘s dignity is protected when it comes to maintaining
these ties. At the end of the sentence, the prisoner should come out more rehabilitated (or
less institutionalised and less likely to reoffend) and more likely to lead an upstanding life
than would have been the case, if having been subjected to a normal custodial sentence.
In terms of the prisoner‘s family, the dignity argument still holds true. Instead of
having the shame and ignominy of having to visit their loved one inside prison over a long
period of time,96 and having the concern of how to provide for their family with a potential
breadwinner gone, family members and friends are free to interact with the offender as
normal during the week. Interestingly, one must not be too precipitate in writing this off as a
positive; there is the argument that a lot of prisoners would rather have a normal sentence of a
few months, and serve their time all at once, than have the ignominy of being ‗free‘ in the
week but in prison at the weekend. It remains to be seen whether this is the case in South
Africa. Surely, though, any embarrassment suffered would pale in comparison to the
suffering that would result were the person subjected to the conditions inside a prison for a
sustained period of time.
As mentioned above, the role of employed offenders and their employers is also
important here. One must not forget that the crimes for which periodic imprisonment can be
imposed are not grave in nature – it will not be the case that murderers and rapists are
allowed such a punishment alternative. It has, over the years, rather been utilised in unpaid
maintenance cases,97 and cases involving minor traffic violations (including drink driving).98
In the case of people with jobs, they are going to have jobs which they want to keep; jobs
which they are likely to lose if sentenced to a traditional custodial term. In this regard,
offenders can maintain their dignity by maintaining whatever job they had prior to
sentencing. In the same vein, someone who was searching for work prior to committing the
crime can continue to search.
K
THE CONSTITUTIONAL RIGHTS OF THE PUBLIC
The rights of the prisoner which this method of imprisonment protects have been discussed at
length; however, the consideration of the rights of the public must certainly not be
overlooked. It is trite to say that society has a right for justice to be done as well as the right
to be protected by the State from wrongdoers; however it is likely that an argument could be
96
Dissel (n 23) 6 - A prisoner remarks, ‗My people have refused to come and see me. They can only come on
the weekend. They have to park by the gates and catch a bus. By the time it gets here three quarters of an hour
has gone. Then they wait another fifteen minutes to see me, forty five minutes for the visit, and then another
forty five minutes to leave the prison again. I haven't had a visit for a couple of weeks. My visitors find it
demeaning.‘
97
S v Visser (n 12).
98
Rweqana v S (n 46).
23
[2010] COLR
made for the fact that these rights are not being adequately recognised when courts grant
seemingly ‗lenient‘ sentences such as periodic imprisonment. The thinking here would be
that the person has committed a crime and should be punished. The form of punishment
suitable is always a traditional prison sentence as this keeps this person away from society for
a prescribed period, presumably so that they cannot recommit similar or worse offences.99
The problems with this argument are myriad. As mentioned by Mogoeng JP,100 the South
African public‘s obsession with punitive measures of retribution as opposed to rehabilitation
and restorative justice when it comes to the punishment of prisoners, has led to a very onesided view as to what punishment should entail. Worryingly, it seems as if the judiciary is
influenced to a certain degree by this public sentiment, when it comes to handing down
sentences. This mindset needs to undergo a paradigm shift across the board, from the person
on the street to the High Court judge.
The rights of society and the law-abiding public are certainly paramount and therefore
clearly cannot be disregarded; however, this must be done in accordance and with cognisance
of the rights of the prisoner, which are equally important; they are after all also members of
the public.101 In this regard, the minor nature of the crimes committed by people undergoing
periodic imprisonment is crucial. In addition to this, it must not be forgotten that the punitive
measure of generally two days of prison every seven days cannot simply be overlooked,
when it comes to the public‘s need for justice. Furthermore, just because the public think
something is the best measure, does not make it so. Keeping people out of prison as much as
possible should actually make society safer, as offenders do not become institutionalised,
party to ‗universities of crime,‘ do not lose the will to lead a meaningful and law-abiding life
and upon completion of their sentences are more likely to be able to be more upstanding
members of the community than would have been the case had they just been released from a
traditional prison term.
L
CONCLUSION
The prison system in South Africa is in an appalling state and in dire need of reform.
Overcrowded and unsafe to the point of being constitutionally questionable, what once were
meant to bastions of rehabilitation and correction have devolved into universities of crime,
overrun by violence and beset by numerous violent gangs. The only goal of imprisonment
that is currently being attained by these institutions is that of punishment; rehabilitation,
deterrence and crime reduction have all taken a back seat to prison violence, sexual abuse and
drug dealing.
Taking a pragmatic approach, one has to concede that prisons are necessarily going to
be with us for some time into the future; we simple do not have the levels of financial,
institutional or psychological maturity to even start to contemplate a society completely
devoid of prisons. With this in mind, in light of the debilitating state of South African
prisons, when it comes to sentencing, prisons should be seen as a last resort of the courts and
wherever necessary criminals, especially those guilty of minor crimes, should be kept out of
the prison system for as long as possible.
Alternative sentencing methods facilitate this to a certain extent, and periodic
imprisonment is praiseworthy as it still contains the strong punitive element of having to
actually be in prison for short periods of time (compared to other alternative measures
99
Schönteich (n 57) 4.
wa Mogoeng (n 57).
101
Section 9(1) of The Bill Of Rights declares ‗everyone is equal before the law and has the right to equal
protection and benefit of the law.‘
100
24
[2010] COLR
completely without custodial attributes). Generally overlooked by judges during sentencing,
the option of periodic imprisonment should be used wherever necessary and certainly more
than it is at the moment.
The South African public's obsession with punitive justice, completely overlooking
the situation of the convicted person and without considering what that person is supposed to
do with themselves upon release, has meant that harsher and longer sentences have received
wide-scale public support. This has even lead to the possibility that some judges, when it
comes to sentencing, swayed by public outcries and general indignation, hand out even
harsher sentences so as not too appear too lenient. This mindset needs to undergo a paradigm
shift throughout, with the focus shifting to how best to (a) prevent people from becoming
criminals in the first place and (b) prevent them from reoffending once they have committed
their first crime (especially if it is a minor one). Periodic imprisonment helps to achieve this
by ensuring that prisoners are only subjected to the conditions inside a prison for short
periods of time, which means there is much less chance that they will become
institutionalised, join gangs, or reoffend upon release.
Periodic imprisonment allows prisoners to maintain important ties both with their
families and friends as well as with their employers. This not only aids them socioeconomically but also helps promote their right to dignity, enshrined in section 10 of the
Constitution. Only being subjected to conditions inside prisons for short periods of time
helps limit the infringement they suffer to their right to freedom from cruel and inhuman
punishment in section 12(1)(e) of the Constitution.
Thus, periodic imprisonment is not only constitutionally sound but actively promotes
a number of important constitutional rights. It is for these reasons that this alternative
sentencing method should be embraced by the judiciary and no longer relegated to the
occasional case of a maintenance claim or minor traffic violation. Applying this sentence on
a wider basis will not only ensure that prisons are less overcrowded during the week, but
should also go a long way to ensuring that first time offenders (especially those who
committed minor crimes) do not become 'institutionalised' at an early stage and as such
inextricably entangled in the prison system.
When one considers the myriad of positives which periodic imprisonment entails, it
should come as somewhat of a surprise that it is still currently implemented so rarely. It is
hoped that in future this will no longer be the case, and periodic imprisonment will enjoy
much more widespread implementation.
25
[2010] COLR
THE CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009:
AN EXAMINATION OF THE COMPATABILITY OF THE NEW ACT WITH
ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
John Barry *
ABSTRACT
Prior to the enactment of the Criminal Justice (Surveillance) Act 2009, there was no law in
this State regulating the power of the Gardai to conduct covert surveillance. Gardai
nevertheless undertook this type of surveillance and used the intelligence gained to assist in
the investigation of serious crimes. The enactment of the 2009 Act aims to bring the law on
covert surveillance in Ireland into line with that of many European countries.
Notwithstanding this fact, there are some parts of the 2009 Act that require detailed analysis
in order determine its compatibility with article 8 of the European Convention on Human
Rights (ECHR). The European Court of Human Rights (ECtHR) has been to the forefront in
ensuring that surveillance law in European Union states meets certain key standards. These
standards such as accessibility and foreseeability are addressed in detail in this paper in
order to determine whether the new Act will pass these judicial tests. Key issues such as the
lack of judicial control in issuing authorisations, the failure to define some of the main terms
such as State Security in the Act and the level of judicial oversight envisaged in the new Act
are all examined in this paper. These issues are analysed in detail and tested against the
case law of the ECtHR in order to see if the new Act complies with some of the keys decisions
of the ECtHR on covert surveillance.
A
INTRODUCTION
The term covert surveillance covers a wide variety of surveillance techniques from
intercepting phone calls to physically following suspects and monitoring their movements.
Modern surveillance techniques utilise various types of electronic surveillance technology.
Initial research for this paper highlighted the fact that there was no law governing the
activities of Gardaí undertaking certain types of surveillance. Gardaí could intercept phone
calls and postal communications under the Interception of Postal Packets and
Telecommunications Messages (Regulation) Act, 1993 (hereinafter the 1993 Act) but there
was no legislation governing electronic surveillance such as covert listening devices, tracking
devices and covert cameras. The Garda National Surveillance Unit (NSU) has been in
operation for many years using modern technology to monitor the activities of suspects.
Perhaps one of the reasons the activities of the NSU do not receive widespread attention is
that they have not used the material from their surveillance activities in direct evidence. For
example, if the Gardaí secretly monitored a conversation in a pub, they would use this
information to aid a certain investigation but they would not use the actual recording as
evidence in a criminal trial.
The European Court of Human Rights (ECtHR) has been a key proponent of change
in the area of surveillance law with particular reference to article 8 of the European
Convention
on
Human
Rights
(ECHR).
1
Irish law has to be compatible with the ECHR following the enactment of the European
Convention on Human Rights Act, 2003.2 An Garda Síochána undertakes surveillance in this
* BBS (UL), Solicitor, LLM Criminal Justice (UCC).
[2010] COLR
country to combat serious crime, drug trafficking and terrorist activity. Despite the fact that
there was no law in this jurisdiction governing certain types of surveillance, the Irish State
has not been before the ECtHR to justify this apparent legal vacuum in Irish surveillance law.
Notwithstanding that the Law Reform Commission had produced a report on this matter in
1998,3 it was events on the streets of Limerick, particularly the murder of Shane Geoghegan
that focused the mind of the current government and led to the enactment of the Criminal
Justice (Surveillance) Act, 2009 (hereinafter the 2009 Act). The jurisprudence of the ECtHR
in relation to the interception of communications and covert listening and monitoring brought
to the fore some potential legal deficiencies in Irish surveillance law notwithstanding the
introduction of the 2009 Act. The definitions of some of the key terms in the Act are
analysed and tested against the jurisprudence of the ECtHR. The absence of judicial
oversight is an issue in certain sections of the 2009 Act. Crucially, the question of who is
looking after the interests of the citizen in light of these new surveillance powers requires indepth analysis.
Article 8 of the ECHR guarantees a person‘s right to respect for his family and private
life4 and outlines how public authorities may only interfere with this right in specific
circumstances. Any interference must be in accordance with the law and necessary in a
democratic society in order to protect such interests as national security, prevention of crime
and public safety.5 Article 8 has been used by many EU citizens to challenge the use of
surveillance by member States to gather evidence against them. The ECtHR has examined
the legality of surveillance carried out by various public authorities within member States of
the European Union (EU). Irish citizens have been slow to challenge the legality of Garda
surveillance in the ECtHR unlike citizens of other EU States who have successfully
challenged the power of various public authorities to use surveillance to gather evidence. A
detailed analysis of the judgments will show how the lack of appropriate law in many
jurisdictions has resulted in breaches of article 8. The ECtHR has provided clear direction to
member States on the quality of the domestic legislation that is required in order for member
States to comply with article 8. In Klass v Germany,6 the ECtHR established the right of a
State to place its citizens under surveillance under certain specific situations. This case
related to a number of lawyers and a Judge who claimed that a German law, known as the
G10 Act,7 dealing with the monitoring of post and telecommunications was in breach of the
1
The European Convention on Human Rights (ECHR) sets forth a number of rights and freedoms such as the
right to life and the right to a fair trial. State parties to the convention undertake to secure these rights to
everyone within their jurisdiction. See Convention for the Protection of Human Rights and Fundamental
Freedoms, ETS. See n 4-5 for full definition of Article 8 of the ECHR.
2
The enactment of this Act obliged Ireland to adhere to the provisions of the European Convention on Human
Rights.
3
See Law Reform Commission LRC 57-1998 Report on Privacy: Surveillance and the Interception of
Communications (Dublin Law Reform Commission 1998).
4
Art 8(1) of the ECHR provides as follows; ―Everyone has the right to respect for his private life, his home and
his correspondence.‖
5
Art 8(2) of the ECHR provides as follows; ―There shall be no interference with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, 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.‖
6
Series A No 28 (1978) 2 EHRR 214 PC.
7
The applicants claimed that Art 10, para 2 of the Basic Law (Grundgesetz) and a statute enacted in pursuance
of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and
Telecommunications (Gesetz zur Bexchrankubg des Brief-, Post-underFernmeldegeheimisses) hereinafter
referred to as the ―G 10 Act‖ were contrary to the ECHR.
27
[2010] COLR
ECHR. The Court accepted the locus standi of the applicants even though they were not able
to show that they had been the subject of surveillance.8 It found that the power to carry our
surveillance lay under article 8(2),9 with specific reference to a State‘s right to safeguard
democratic institutions. The Court went on to highlight the danger of laws such as the G10
Act undermining democracy under the pretence of protecting it. The Court was not going to
allow States to use whatever measures they wanted to counteract terrorism and espionage.10
The Court required the surveillance to have adequate measures and protections against abuse.
Each case was to be judged on its merits and the Court would look at such issues such as the
grounds for ordering surveillance, the length and scope of the surveillance, the competence of
those permitting, carrying out and supervising the surveillance measures and the remedies
available at national law to those at whom the surveillance is directed.11 In acknowledging
the right of the German authorities to undertake surveillance, the Court sought to find a
‗compromise‘ between the rights of the individual and the need to defend a democratic
society.12 In this case, the Court found that the G10 Act was not in breach of article 8.
B
KEY PRINCIPLES UNDERLYING ARTICLE 8 OF THE ECHR
The Court has been particularly consistent in requiring that no laws breach the principles of
foreseeability and accessibility. Foreseeability means that the law must be laid out in enough
specific detail in order that individuals can regulate their conduct accordingly.13
Accessibility refers to the fact that the law must be readily available to the public at large and
not restricted to those who carry out the surveillance. The ECtHR has been consistent in its
rulings in this area and States whose legislation breached these principles were found not to
have complied with article 8 of the ECHR.
The general principles as to what constitutes ‗in accordance with the law‘ under
article 8(2) were set out in the case of The Sunday Times v United Kingdom (hereinafter the
Sunday Times case).14 The Court referred to three main principles. Firstly, the public
authority must have a legal basis for their action(s). Secondly, citizens must have access to
the law and this accessibility to the law must give them adequate guidance as to what
circumstances are covered by the law.15 Thirdly, the law must be constructed with sufficient
clarity to allow the citizen to be able to reasonably foresee how this law will affect him or her
should they act in a certain manner.16 This concept of foreseeability does not have to be
absolute but must be reasonable given the circumstances of the case. These principles were
cited with approval in Malone.17 In this case, the Court expanded on the principle of
foreseeability in relation to the interception of communications, by stating that this does not
mean that the individual under surveillance should be able to foresee when his
communications are likely to be intercepted, as this would allow him to change his
8
Klass v Germany (n 6) para 41.
ibid para 42.
10
ibid para 49.
11
Klass v Germany (n 6) para 50.
12
ibid para 59.
13
Covington & Burling ‗Memorandum of laws concerning the legality of data retention with regard to the rights
guaranteed
by
the
European
Convention
On
Human
Rights‘
[2003]
<http://www.privacyinternational.org/countries/uk/surveillance/pi_data_retention_memo.pdf> 8 (5 February
2010).
14
The Sunday Times v United Kingdom (1979-1980) 2 EHRR 245.
15
ibid para 49.
16
ibid.
17
Malone v United Kingdom Series A 82 (1984) 7 EHRR 14 PC para 66.
9
28
[2010] COLR
behaviour.18 The Court reiterated that the law must be clear as to the ‗circumstances‘ and
‗conditions‘ under which public authorities can initiate ‗this secret and potentially secret
surveillance.‘19 The Court found that the British authorities were in breach of article 8 on the
basis that the legal rules governing the interception of communications breached the principle
of foreseeability as these rules were internal guidelines and not available to the public at
large.20 The Court also stated that since surveillance measures are by their nature not open to
scrutiny by the public, the law must not be drafted in terms that gives the public authorities
‗unfettered‘ power and discretion and therefore the law must be clear on the limits of any
such discretion.21 In seeking to find the protection available to the individual under the
umbrella of ‗in accordance with the law‘ the Court differed from the judgment in Klass where
the Court in that case stated that the protection was to be under the confines of what is
‗necessary in a democratic society‘ under article 8(2) of the ECHR.
Subsequent decisions in Halford v United Kingdom,22 found that the absence of any
domestic legislation clearly breached the principle of foreseeability since the interception of
these communications had not been in accordance with the law and was in breach of article 8.
Similarly in Huvig v France,23 (hereinafter Huvig) which also dealt with the interception of
telephone conversations, the Court again focused on the issue of foreseeability. The Court
made the point that the law governing the monitoring of phone calls and other forms of
communication had to be precise in order to keep pace with the increasingly sophisticated
technology available to the authorities.24 The French Government referred to the fact that
they had in place a large number of safeguards to protect against arbitrary interceptions, some
of which were expressly laid down in the French Code of Criminal Procedure and others
stemming for Court judgments over the years.25 However, in some cases, the safeguards
were not clear and came from interpretations of the legislative provisions. It was not defined
who could have their phone tapped nor the offences which would allow such tapping.26 The
Court was also not satisfied that the procedures for the creation, transmission, storage, and
destruction of the intercepted conversations were sufficiently clear in French law. 27 The
Court found that French law was lacking in the legal certainty required for it to be compatible
with article 8 and thus found that the French authorities had breached this article.28
18
ibid para 67.
ibid.
20
Malone v United Kingdom (n 17) para 68. This was an administrative practice, which covered how the police
were to undertake surveillance. However, the internal guidelines governing this practice were not available to
the public.
21
ibid.
22
(1997) III; 24 EHRR 523.
23
(1990) 12 EHRR 528.
24
ibid para 32.
25
ibid para 32-33. The French Government listed seventeen protections which were provided for under
French Law such as;- the need for an investigating Judge, that is an independent judicial authority, to authorise surveillance;
- the latter‘s supervision of senior police officers and the possible supervision of the Judge himself by the
Indictment Division (chambre d‘accusation) of the Court of Appeal;
- the exclusion of any subterfuge or ruse consisting not merely of telephone tapping but in an actual trick,
trap or provocation;
- The duty to respect the confidentiality of relations between suspect or accused and lawyer.
26
Huvig v France (n 23) para 87.
27
ibid.
28
ibid para 64.
19
29
[2010] COLR
C
COVERT SURVEILLANCE PRIOR TO THE ENACTMENT
OF THE 2009 ACT
Prior to the enactment of the 2009 Act there was no law governing the use of covert
surveillance devices by Gardaí. In the absence of any law governing this type of activity,
Gardaí were able to use such devices to gather intelligence. This intelligence, while not used
as direct evidence in Court, was often nevertheless crucial in furthering criminal
investigations. It could be argued that since there was no basis in law for the use of these
surveillance devices, then any evidence that flowed from such use would have been not only
breach of the rules of evidence but also breached article 8 of the ECHR. Whilst no Irish
citizen challenged this legal vacuum, similar cases taken by individuals in other EU states
provide us with an insight into how the ECtHR dealt with the absence of a legal basis for
surveillance. In the case of Khan v United Kingdom29 (hereinafter Khan) the applicant visited
his friend‘s house in Sheffield, a Mr Bashforth. Sheffield police had installed a covert
listening device in Bashforth‘s house under authorisation from the Chief Constable of South
Yorkshire Police as they suspected he was dealing drugs and this was the only means by
which they could get the necessary proof. The police had not expected that Mr Khan would
visit Bashforth‘s house. As a result of the covert listening device, the police recorded a
conversation between the two men during which the applicant admitted to being a party to the
importation of drugs during the previous year. The applicant pleaded guilty once the trial
judge had allowed the evidence of the recording in during the voir dire and he was sentenced
to three years‘ imprisonment. His subsequent appeal went to the House of Lords, who
accepted that the evidence was obtained in breach of article 8. Nevertheless, the House of
Lords held that the evidence should not be excluded.
The matter came before the ECtHR. The applicant claimed that there was no
statutory basis for the use of covert listening devices in the United Kingdom and that the
recording of his conversations were not obtained ‗in accordance with the law.‘30 The United
Kingdom authorities accepted that the covert listening device did interfere with the
applicant‘s private life protected under article 8 (1), but claimed that this interference was not
in breach due to the fact that it was ‗in accordance with the law and necessary in a democratic
society to prevent crime.‘31 The authorities also claimed that foreseeability in the context of
covert surveillance was different to other areas of law and did not breach the convention
provided the scope of the discretion given to the authorities was clear and they referred the
court to the Home Office Guidelines which were accessible to the public, though not on a
statutory basis.32 The court emphasised the need to have clear domestic law so that
individuals could be aware of the circumstances in which the police could carry out covert
surveillance.33 The court did not accept that the Home Office Guidelines were accessible and
made the point that they were not legally binding which meant that the police actions lacked
any basis in domestic law. It was on these grounds that the court found the covert
surveillance to be in breach of article 8.
The United Kingdom authorities were again before the ECtHR in the case of PG &
JH v The United Kingdom.34 The police were investigating the possibility of a robbery taking
place involving the applicants and placed a covert surveillance device in the applicant‘s flat.
29
2000-V; 31 EHRR 1016.
ibid para 23.
31
ibid para 24.
32
ibid para. 24.
33
ibid para 26.
34
2001 – IX; 46 EHRR 51.
30
30
[2010] COLR
In relation to the covert listening device, the court held, citing Khan that there was no
domestic law governing the use of such devices at the relevant time and so this action was not
‗in accordance with the law‘ and a breach of article 8.35 Prior to the enactment of the 2009
Act, there appears to have been no basis in Irish law for the use of covert surveillance
devices. Therefore, intelligence obtained by the Gardaí using such equipment would have
been in breach of the principles of foreseeability and accessibility as required by the ECHR.
D
CLEARING THE HURDLES: THE 2009 ACT AND ARTICLE 8 OF
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Having due regard to some of the key principles already discussed, the 2009 Act is a major
development in the law in Ireland dealing with covert surveillance. The Act is arranged in 19
sections. The analysis of the Act will focus on some of the key provisions with some of the
more contentious sections requiring more detailed attention. Section 1 defines the key terms
in the Act. Surveillance is defined as monitoring, observing, listening to or making a
recording of a particular person or group of persons or their movements, activities and
communications, or (b) monitoring or making a recording of places or things by or with the
assistance of surveillance devices. Surveillance device means an apparatus designed or
adapted for use in surveillance but does not include binoculars, night vision equipment,
CCTV, or cameras used in public.36
1
Cameras, Videoing and Surveillance
The exclusion of cameras from the definition of a surveillance device may come under
judicial scrutiny particularly by the ECtHR. According to the Minister for Justice, Dermot
Ahern, cameras were purposely excluded as they are used as part of regular day–to-day
policing and the aim of this Act was to regulate electronic surveillance devices. 37 The
Minister sought to make a distinction between the use of cameras for ordinary everyday
policing and targeted surveillance.38 This distinction between ordinary and targeted
surveillance is somewhat difficult to reconcile with the definition of surveillance in that the
repeated and targeted monitoring and recording of people using cameras would come seem to
constitute surveillance. This is the viewpoint of the Irish Human Rights Commission (IHRC)
who advocated the inclusion of cameras as a surveillance device. 39 In excluding cameras, the
legislation attempts to allow Gardaí to continue using cameras as part of everyday
surveillance as they currently do without bringing this type of surveillance within the remit of
the Act. Minister Ahern has stated that he does not want to create a situation whereby Gardaí
would have to apply for a surveillance warrant every time they intended using cameras or
night vision goggles.40 The current situation is that evidence relating to this type of
monitoring by the Gardaí can be given as direct evidence in court. It is interesting to note
35
ibid para 38.
Under s 1(5) of the 2009 Act, surveillance device does not include (a) an apparatus designed to enhance visual
acuity or night vision, to the extent to which it is not used to make a recording of any person who, or any place
or thing that, is being monitored or observed, (b) a CCTV within the meaning of s 38 of the Garda Síochána
Act, 2005, or (c) a camera, to the extent to which it is used to take photographs of any person who, or anything
that, is in a place to which the public have access.
37
30 Dáil Debates (24 June 2009) 873.
38
ibid.
39
Irish Human Rights Commission Observations on the Criminal Justice (Surveillance) Bill 2009 May 2009 6.
40
30 Dáil Debates (24 June 2009) (n 37) 873.
36
31
[2010] COLR
that the Law Reform Commission in a report published on this area in 1998 had
recommended that cameras should be included in the definition of surveillance.41
In the context of the jurisprudence of the ECtHR, the use of cameras by the Gardaí
could amount to interference under article 8.42 One of the key issues is whether there is a
permanent record of the material obtained and whether the authorities have identified
individuals contained in these records.43 In a situation where the Gardaí photograph suspects
and then maintain these photos in a systematic manner, then this would seem to constitute an
interference with the private life of the individual.44 The European Commission for Human
Rights in Friedl v Austria45 examined a situation whereby Mr Friedl was photographed and
recorded by video recorder during the course of a demonstration. The demonstrators had
been informed prior to the action that they were in breach of Austrian law and had been asked
to leave the area. However, the Austrian authorities argued that the police did not seek to
establish the identities of the demonstrators who had been photographed nor did they enter
the photographs into any data processing system.46 The Austrian authorities paid
compensation to Mr Friedl and destroyed the photograph. As a result, the Commission
rejected a breach of article 8. However, this case occurred fourteen years ago and it remains
to be seen how the ECtHR would deal with such an issue today.
In Govell v United Kingdom,47 (hereinafter Govell), the applicant was subjected to
police surveillance. However, in this case, the police used covert listening and camera
equipment during the course of the investigation. The police drilled a hole into the
applicant‘s living room from the house next door, which would have enabled someone to
listen to the applicant from this house or to attach a listening device. The police also installed
camera equipment in the property next door.48 All these devices were installed under
authorisation of the acting Chief Constable of West Yorkshire Police who submitted that
these authorisations were issued under the appropriate Home Office Guidelines governing
surveillance.49 The applicant submitted that the surveillance was not ‗in accordance with the
law‘ as the Home Office Guidelines were not ‗sufficiently accessible.‘50 The Commission
noted that the UK authorities were in the process of drafting legislation to cover this type of
surveillance.51 However, this law, which would be known as the Police Act 1997, could not
be applied to this case. The Commission referred to the fact that the applicant had difficulty
obtaining the Home Office Guidelines, which in any case were not legally binding and for
this reason ruled that, the law was not sufficiently clear and was in breach of article 8.52 In
this situation, the ECtHR clearly stated that covert surveillance equipment including cameras
41
Law Reform Commission LRC 57-1998 Report on Privacy: Surveillance and the Interception of
Communications (Dublin Law Reform Commission 1998) 130. Surveillance is defined as follows; ―surveillance‖ includes aural (hearing) and visual (optical) surveillance, irrespective (emphasis added by author)
of the means employed.
42
n 4-5 regarding the definition of Art 8.
43
PG & JH v United Kingdom (n 34) paras 57-59.
44
ibid para 57. Private life issues only arise when a permanent or systematic record comes into existence.
45
Application no. 15225/89 26th January 1995.
46
ibid para 8.
47
Report of the European Commission of Human Rights 14th January 1998.
48
Report of the European Commission of Human Rights (n 47) para 87.
49
The Home Office Guidelines were guidelines put in place to cover the use of surveillance equipment by UK
police during surveillance operations.
50
In March 1994, the applicant had requested disclosure of the relevant Home Office Guidelines on the
authorisation for surveillance. However, West Yorkshire Police Authority refused disclosure on the basis that
the documents were covered by public Interest immunity. The applicant subsequently obtained a copy of these
guidelines through other means.
51
Report of the European Commission of Human Rights (n 47) para 59.
52
ibid paras 62 - 63.
32
[2010] COLR
requires a basis in law to comply with article 8. In light of this decision, the exclusion of
cameras from the 2009 Act may not comply with article 8 in this regard.
The question of whether the covert videoing of a suspect amounts to a breach of
article 8 was examined in the case of Perry v The United Kingdom53 (hereinafter Perry). Mr
Perry was a suspect in a robbery. Perry failed to turn up for an identification parade and the
police videoed him under authorisation while he was in a police custody area in order to get a
picture of him to show to witnesses.54 In order to get a clear picture of Perry, the police
regulated the camera in order to get clear footage of him. The still of this footage was
subsequently included in a photomontage, which was shown to witnesses. The video was
also shown in Court during Perry‘s trial. The ECtHR ruled that whilst the accused would
have expected and been aware that he was being filmed in the police station, the subsequent
use of the footage went beyond the normal expected use of the camera. The fact that the
footage was permanently stored and included in a montage constituted the processing and
collecting of personal data about Mr Perry.55 As a result, the Court ruled that there had been
an interference with the applicant‘s right under article 8. The Court also ruled that this
interference was not in accordance with the law, as the police had not complied with the code
of practice in relation to the aspects of the video recording and were therefore in breach of
article 8(2).56
In Perry, the ECtHR is making clear that where the material obtained from
recordings or cameras is collected and stored for further use, then this would be interference
under article 8 (1). This interference can only be justified under article 8 (2) if it is done in
accordance with the law. For example if the Gardaí place a person under surveillance,
photograph that individual, then process and store this material, then there would seem to be
a clear interference with that individual‘s privacy. Therefore, in excluding the use of cameras
from the 2009 Act, the government are not giving any basis in law as required by the ECtHR
to justify the use of cameras during surveillance. The three principles espoused in the Sunday
Times57 case, namely that there be a legal basis for the action, coupled with accessibly and
foreseeability would seem to be absent in this situation. Given that cameras are not included
in the legislation, there does not seem to be any available guidelines or code of practice in
operation governing what the Minister describes as ordinary surveillance in order to regulate
the behaviour of Gardaí undertaking this type of surveillance. Irish citizens therefore cannot
with any degree of certainty foresee when the Gardaí can use cameras to record them and
their activities, which would seem to be a breach under article 8.
2
Grounds for Undertaking Surveillance
One of the key provisions of the Act relates to the application for authorisation for a
surveillance warrant. Under section 4, a superior officer58 of the Garda Síochána may apply
to a judge of any District Court area for a surveillance warrant. 59 In order to obtain this
53
(2004) 39 EHRR 76.
ibid para 39.
55
ibid para 41.
56
ibid. para 47- 49.
57
Sunday Times v United Kingdom (n14).
58
Definition of a superior officer (n88).
59
s 4(1): ‗A superior officer of the Garda Síochána may apply to a judge for an authorisation where he or she
has reasonable grounds for believing that – (a) as part of an operation or investigation being conducted by the
Garda Síochána concerning an arrestable offence, the surveillance being sought to be authorised is necessary for
the purposes of obtaining information as to whether the offence has been committed or as to the circumstances
54
33
[2010] COLR
warrant, the surveillance must relate to the investigation of an arrestable offence 60 or
concerned with the security of the State61. The term security of the State, unlike the term
arrestable offence is not defined in the legislation. Senator Ivana Bacik makes the point that
surveillance and bugging has been authorised in Ireland in the past under the very vague
heading of ‗maintaining the security of the State.‘62 In Kennedy,63 the Supreme Court could
find no justification for the tapping of the applicant‘s phones. The fact that the intercepted
transcripts were passed on to the then Justice Minister added a clear political dimension to the
tapping. The ECtHR has stated that definitions within surveillance legislation must be
sufficiently clear in order for the citizen to regulate their behaviour accordingly. In Weber &
Savaria v Germany64 (hereinafter Weber), the ECtHR found that the citizen could foresee the
consequences of his actions, as the legislation was sufficiently precise and specified the
situations in which surveillance could take place. These included such events as an armed
attack on Germany, money laundering and arms trafficking.65 This is important in the
jurisprudence of the ECtHR in that the Court in this case was satisfied that German law
complied with article 8 of the ECHR. It should be noted that the ECtHR ruled that the phrase
‗national security‘ was too general a term.66 Weber was a German national and Savaria was a
Uruguayan national, both of whom lived in Montevideo, Uruguay. Weber worked as a
freelance journalist for various German media outlets, where she investigated, among other
things, arms trafficking. Savaria took messages for Weber while she was away working on
assignments. The applicants submitted that the German Fight Against Crime Act 1994,
which amended parts of the G10 Act,67 breached their rights under article 8 and could
possibly be used to place them under surveillance. It was their submission that technological
progress made it possible to intercept their communications anywhere in the world using
catchwords, which were secret.68 The key issues, which the applicants complained of, related
to the process of strategic monitoring of communications, the transmission of this data to the
various relevant authorities and the use of it by them, the destruction of this data and finally
the refusal to give notice on the restrictions on the secrecy of telecommunications.69 The
court here, as in many of the aforementioned cases, focused on the issue of foreseeability.
The court observed that the G10 Act specified the category of offences, which allowed the
relating to the commission of the offence, or obtaining evidence for the purposes of proceedings in relation to
the offence,
(b) the surveillance being sought is necessary for the purpose of preventing the commission of arrestable
offences, or
(c) the surveillance being sought is necessary for the purpose of maintaining the security of the State.‘
60
Under s 2 (1) of the Criminal Law Act 1997, an arrestable offence means an offence for which a person of full
capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment
for a term of five years or by a more severe penalty an includes an attempt to commit any such offence.
61
s 4(1) (n 59). See s 4(1) (c) dealing with security of the State.
62
23 Seanad Debates (2 July 2009) at 673. Senator Bacik refers specifically to the bugging of the phones of
journalists Bruce Arnold and Geraldine Kennedy in 1983.
63
Kennedy v Ireland [1987] IR 587.
64
(2008) 46 EHRR SE5.
65
Weber (n 64). A detailed list of events where surveillance is permitted is outlined in the German legislation.
66
ibid para 64.
67
G10 Act (n 8). In this situation, the applicants alleged that certain aspects of the Fight Against Crime Act
1994 which amended the G10 Act, disregarded their fundamental rights, notably the right to secrecy of
communications (Art 10 of the Basic Law), the right to self determination in the sphere of information (Arts
2(1) and 1(1) of the Basic Law), freedom of the press (Art 5(1) of the Basic Law) and the right to effective
recourse to the Courts (Art 19(4) of the Basic Law).
68
The G10 Act allowed for the monitoring of wireless telecommunications, which could be transmitted via
satellite, or radio relay links. Signals emitted from foreign countries are monitored from interception sites on
German soil and the data collected is used by the German authorities.
69
s 4(1) (n 61) para 74.
34
[2010] COLR
interception of communications, and these were detailed in section 3(1) of the G10 Act.70 It
also noted that the category of person who could have their communications monitored was
specified under section 3(1) and (2) of the G10 Act. The person concerned had to have taken
part in an international telephone conversation via satellite or radio and used certain key
words linking them with the offences outlined above.71 The court also set out the minimum
standards relating to surveillance that should be set out in statute; namely the nature of the
offences which may give rise to an interception order; a definition of the categories of people
liable to have their telephone tapped; a limit on the duration of telephone tapping; the
procedure to be followed for examining, using and storing the data obtained; the precautions
to be taken when communicating the data to other parties; and the circumstances in which
recordings may or must be erased or tapes destroyed.72 Having examined these procedures in
detail, the court was satisfied that the foreseeability element had been dealt with adequately
by the German authorities and ruled that the amended G10 Act was not in breach of article
8.73 This case highlighted the fact that terms such as ‗security of the State‘
were too vague. The lack of a precise definition of such terms in the 2009 Act may bring it
into conflict with article 8 of the ECtHR.
Similarly, the recent case of Liberty and Others v The United Kingdom74 (hereinafter
Liberty), is particularly relevant to the issue of covert surveillance and particularly the need to
have precise definitions of key terms such as national security. In this case, the applicants,
Liberty, British Irish Rights Watch, and the Irish Council for Civil Liberties alleged that the
British Ministry of Defence (MOD) operated an Electronic Test Facility (―ETF‖) in Cheshire,
which was built to intercept 10,000 simultaneous telephone channels coming from Dublin to
London and on to the Continent.75 Between 1990 and 1997, it was alleged that the ETF
intercepted all telephone, facsimile and e-mail communications carried on microwave radio
between two British Telecom radio stations in Wales and Cheshire. These links carried much
of Ireland‘s Telecommunications traffic. The applicants were in regular telephone contact
with each other during this time and would have passed on legal advice to people. They
allege that much of their telecommunications traffic would have been intercepted by the ETF.
The applicants alleged a breach of article 8 stating that this interception did not have a basis
in law and was not accessible and foreseeable.76 They also argued that the procedure for
issuing warrants under the Interception of Communications Act 1985 (hereinafter the 1985
Act), was unclear and the law did not specify how the authorities selected, disclosed, used, or
retained the information intercepted.77 This case, like Weber, involved what the court
described as ‗generalised strategic monitoring‘ or blanket monitoring of communications
traffic as opposed to the targeting of specific individuals.78 In other words, the authorities
had systems in place such as ‗catch words‘ which would trigger the surveillance. The court
70
s 3(1) of the G10 Act states: 1. An armed attack on the Federal Republic of Germany. (FDR); 2. The
commission of international terrorist attacks in the FDR; 3. International arms trafficking within the meaning of
the Control of Weapons of War Act and prohibited external trade in goods, data processing programmes and
technologies of considerable importance; 4. The illegal importation of drugs in substantial quantities into the
territory of the FDR; 5.Counterfeiting of money committed abroad; 6. The laundering of money in the context of
the Acts listed under points 3-5. Pursuant to s.3(1), third sentence, restrictions on the secrecy of
telecommunications could also be ordered for telecommunications via fixed telephone lines and for mail in
order to identify and avert the dangers listed in s.3(1), second sentence point 1.
71
Weber (n 64) para 97.
72
Weber (n 64) para 95.
73
ibid para 102.
74
(2009) 48 EHRR 1.
75
ibid para 5.
76
ibid para 45.
77
ibid.
78
ibid para 63.
35
[2010] COLR
in its judgment found that this blanket monitoring granted to the executive ‗unfettered
discretion‘79 as in theory everybody who received or sent communications within this time
could have had their communications intercepted. The court also found that the 1985 Act
was not specific as to what captured material was listened to or read. It found that such
terms, as ‗national security, and ‗preventing and detecting serious crime‘ were too general. 80
In relation to the ‗catch words‘ used, the British authorities had put in place ‗arrangements‘
governing the selection of material for examination and for the dissemination and storage of
intercepted material.81 However, these arrangements were not made public and thus seemed
to breach the principle of accessibility. The court then went on to cite with approval Weber
where the German authorities considered it prudent to include detailed provisions relating to
catch words.82 The court also referred to the fact that the G10 Act set out clear and detailed
rules regarding the storing, retention destruction and use of captured material.83
In an Irish context, the term security of the State could allow for the covert
surveillance of persons or political groupings based on their political beliefs. It is interesting
to note that during the Seanad debate on the legislation it was revealed that two members of
the Houses of the Oireachtas had been under surveillance.84 Independent TD for Mayo, Dr
Jerry Crowley suspected that his phone was being tapped and asked the complaint‘s referee85
to investigate the apparent official tapping of his telephone.86 Deputy Crowley has been
closely associated with the Shell to Sea campaign, which opposes the Corrib Gas pipeline
plans in Co Mayo. The grounds for interceptions by the State under the 1993 Act are unclear
to say the least. However, by not defining with sufficient clarity terms such as ‗security of
the State‘ in the 2009 Act, the potential for abuse becomes more likely. It would have been
prudent to define this term in the legislation to ensure that citizens would know with
sufficient clarity the types of actions that came under the umbrella of security of the State.
3
Judicial v Non – Judicial Authorisation of Surveillance
The question of the appropriate legal authority to issue a surveillance authorisation arises
under section 5 of the 2009 Act. The legislation allows for a judge of any District Court area
to issue an authorisation ex parte.87 However, under section 7(3) surveillance may be carried
out in certain situations without judicial authorisation and a superior officer88 may grant
79
ibid para 64.
ibid.
81
Liberty (n 74) para 66.
82
ibid para 68. The catchwords used by the German authorities had to be listed on the monitoring order. The
catchwords also had to be related to one of the specific offences, which they were investigating. See note 123
for a complete list of authorised offences. In contrast, the United Kingdom legislation did not require the
specific catchwords to be listed on the surveillance warrant.
83
Liberty (n 74) para 68.
84
30 Dáil Debates (30 April 2009) 560. This fact was revealed by Deputy Aenghus Ó Snódaigh of Sinn Féin
who told the Seanad that he was informed of this surveillance by a previous Minister for Justice, Equality, and
Law Reform in response to a question as to whether any member of the Houses of the Oireachtas was under
surveillance, electronic or otherwise.
85
Under s 9(3) of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993
a person who believes that a communication sent by him has been intercepted can apply to the Referee for an
investigation into the matter.
86
See Digital Rights Ireland <http://www.digitalrights.ie/category/mass-surveillance/page/3/> (28 August
2009).
87
See ss 5(1) (a) and (b) of the 2009 Act.
88
Under s 1(a) of the 2009 Act ‗superior officer‘ means in the case of An Garda Síochána, a member of An
Garda Síochána not below the rank of superintendent.
80
36
[2010] COLR
approval for the surveillance under certain circumstances such as the suspect absconding,
evidence being destroyed or if the security of the State is likely to be compromised. 89 This
approval has to meet the same criteria that a judicial authorisation would have to meet under
section 4 and lasts for a maximum period of 72 hours.90 The power of senior Gardaí to issue
warrants is available for offences under the Criminal Justice (Drug Trafficking) Act, 199691
and for certain offences under the Offences against the States Act, 1939.92 However, under
the 2009 Act, senior Garda officers can issue approval for surveillance for a wide variety of
offences found under the umbrella of arrestable offences and this warrant can last for 72
hours. It is the nature of policing that warrants may be required at speed in certain situations.
However, a period of 72 hours, which is three full days, would seem to be a generous time
period without judicial oversight. It has been suggested that a period of 24 hours would
allow all those involved to obtain judicial approval.93 Each District Court area has a judge on
call at weekends and over holiday periods to cover emergency court sittings in each district.
It would therefore seem realistic that these judges could deal with any applications for
surveillance warrants within 24 hours. The ECtHR makes it clear that they require a close
level of judicial supervision of any warrants issued as was highlighted in a number of rulings
by the ECtHR when it held that surveillance legislation lacked the appropriate judicial
supervision and therefore breached article 8.
This requirement for judicial authorisation is made clear in some key decisions of
the ECtHR. In Kopp v Switzerland,94 (hereinafter Kopp) the applicant, who was a lawyer and
a Swiss national, had his office phone lines monitored by the Swiss authorities in November
and December 1989. The applicant‘s phone lines were monitored as a third party, by the
authorities who were investigating the leaking of secret documents from a government
department. The applicant alleged a violation of article 8 on the grounds that Swiss law
prohibited the tapping of phones where the individual was a lawyer as these conversations are
considered privileged.95 The Swiss government claimed that his conversations as a lawyer
were excluded and that only the conversations that related to matters not related to his
profession were monitored. 96 The government explained that a specialist post office official
undertook the decision as to what conversations were relevant.97 The court emphasised the
necessity of ‗clear rules‘ again under the ambit of foreseeability and held that in this case the
law was not sufficiently clear as to by whom, and under what grounds, the distinction
between privileged and not privileged material was to be made.98 The court was particularly
concerned that an official of the postal service without supervision by an independent judge
was assigned to adjudicate on what conversations were relevant. 99 In light of this fact,
namely the lack of judicial oversight at this specific stage, the court found that there had been
a breach of article 8.
89
See ss 7(1) and 7(2) of the 2009 Act.
See s 7(8) of the 2009 Act.
91
s 8(1) of the Criminal Justice (Drug Trafficking) Act, 1996 amends s 26 of the Misuse of Drugs Act, 1977 so
as to allow a member of An Garda Síochána not below the rank of Superintendent to issue search warrant in
certain urgent situations.
92
Under s 29 of the Offences against the State Act, 1939, a member of An Garda Síochána, not below the rank
of superintendent can issue search warrants under certain conditions in relation to the commission of offences
under this Act or treason.
93
23 Seanad Deb. (30 June 2009) 433. Senator Ivana Bacik suggested a time period of 24 hours as being more
appropriate in situations of urgency.
94
1998-II; 27 EHRR 91.
95
ibid para 30.
96
ibid para 31.
97
ibid para 71.
98
ibid para 73.
99
Kopp (n 94) para 74.
90
37
[2010] COLR
The case of Valenzuela Contreras v Spain,100 (hereinafter Valenzuela), also focused
on among other areas the lack of judicial supervision. In this case, the applicant‘s phone was
tapped by police who were investigating threatening phone calls being made from an office
phone to a female. The police had established that the calls were coming from an office to
which the applicant had access. The applicant sought a declaration that his rights under
article 8 had been breached on the basis that the statutory basis in Spanish law for the
measure taken was not ‗sufficiently foreseeable and clear‘ and that the law was based on the
Spanish Constitution which was not clear on the powers available to the Spanish
authorities.101 The applicant also sought relief on the grounds that there was a lack of judicial
supervision of the surveillance system. The court, while recognising that the Spanish
authorities had in a general sense sought to ensure that the applicant was afforded the
maximum protection under the law in operation at the time, nevertheless was still of the
opinion that these protections were not clear from a reading of this legislation.102 The issue
of the foreseeability of the law was again a key reason for the court‘s decision to find that
there had been a violation of article 8, with the lack of clarity in both written and unwritten
law being a key component of this lack of foreseeability. All these cases make it clear that
the ECtHR will strike down legislation that does not have the necessary judicial supervision.
It is therefore clear that the three-day approval of a superior officer which in essence gives
judicial powers to the issuing officer may breach the court‘s direction in this area.
The issue of judicial supervision also arises under section 8 of the 2009 Act.103 This
section exempts tracking devices104 from the definition of a surveillance device. This means
that such devices are not the subject of the judicial authorisation. The legislation allows the
use of a tracking device for periods of up to four months.105 Tracking devices provide
location data about the objects they are attached to and Gardaí have successfully attached
these devices to cars in order to monitor the location of vehicles during covert surveillance
operations.106 However, the devices also provide information on the movement of
individuals in vehicles and as such would seem to come under the definition of surveillance
under section 1 the 2009 Act. It is not clear why the authorisation for the use of tracking
devices could not follow the same procedure for the granting of approval for surveillance
warrants under section 7 whereby a superior officer can grant approval in emergencies, which
would then be subject to judicial authorisation after a certain period. The argument by the
government in excluding tracking devices is twofold. Firstly, it is argued that the devices do
not record conversations and as such are less intrusive than other surveillance methods.107
Secondly, it is argued that the devices often need to be attached in cases of extreme urgency
100
(1999) 28 EHRR 483.
ibid para 43.
102
ibid para 57.
103
Under s 8 (1) of the 2009 Act, a member of An Garda Síochána may, for a period of not more than four
months or such shorter periods as the Minister may prescribe by regulations, monitor the movements of persons,
vehicles or things using a tracking device if that use has been approved by a superior officer in accordance with
this section.
104
Under s 1 of the 2009 Act, a tracking device means a surveillance device that is used for the purpose of
providing information regarding the location of a person, vehicle, or thing.
105
s 8 (1) of the 2009 Act (n 103).
106
J. Mooney and M. O‘Toole Black Operations: The Secret War Against the Real IRA (Meath Maverick House
Publishers 2003) 62-63. During operations against the Real IRA in the late nineties, the Garda NSU (National
Surveillance Unit) was able to take possession of cars that had been stolen by an informant on behalf of the Real
IRA. The NSU then attached tracking devices to these cars before the informant then passed the cars onto the
Real IRA. As a result, the Gardaí were able to track and intercept bombs, which had been placed in these cars.
107
23 Seanad Debates (2 July 2009) 684. See comments of Minister of State at the Department of Justice,
Equality, and Law Reform, Deputy John Curran.
101
38
[2010] COLR
and that a court application for warrants may cause undue delay.108 It is clear that the main
aim of the legislation is to focus on the covert recording of the activities of suspects and use
this material in criminal trials. In excluding tracking devices from the definition of a
surveillance device, the 2009 Act may run into difficulty, as tracking devices clearly appear
to constitute an interference with the right to respect to private life under article 8. The
ECtHR is very clear on the need for judicial supervision when the State is undertaking such
intrusive measures such as covert surveillance.109 Ashworth questions whether procedures
for authorisation by middle ranking officers will satisfy the ECtHR. 110 The grounds that the
government have put forward for the lack of judicial control of tracking devices does not
seem to reflect the clearly-stated requirement the ECtHR has for such judicial supervision.111
4
Is the 2009 Act Adequately Policed?
Section 12 of the 2009 Act makes provision for a High Court judge to review the operation of
the surveillance with particular reference to sections 4 to 8.112 This provision is similar to
section 8 of the 1993 Act. The function of the designated judge is extremely important in
ensuring that any surveillance undertaken complies with the legislation. The nature of covert
surveillance is such that those who are subjected to such surveillance will often not be aware
of it. This puts a particular onus on the designated Judge to ensure that these people are
protected. In cases where such surveillance does not comply with the law, it is the designated
judge who can bring this to light and take the matter further.113 The ECtHR in Klass requires
that surveillance laws must have adequate measures against abuse. 114 In the United Kingdom
the Communications Commissioner, who oversees the interception of communication in that
jurisdiction, produces a detailed report, which is presented to the House of Commons
annually.115 This comprehensive document gives specific details such as the number of
authorisations approved,116 the offences for which the authorisations were approved,117 and
the category of places where communications were intercepted.118 The report also gives
details on problems that have arisen such as poor auditing by senior management and a
108
See also Select Committee on Justice at Committee Stage ETC (11 June 2009) 15. The Minister for Justice,
Equality and Law Reform, Dermot Ahern made a similar argument to Deputy Curran for excluding tracking
devices from the legislation. His main arguments were that these devices were less intrusive and often have to
be attached at short notice and that a Court application might lead to ‗a delay that might hinder or jeopardise an
investigation.‘
109
Klass v Germany (n 6).
110
A Ashworth & M Redmayne ‗Gathering Evidence: Reliability, Privacy and Bodily Integrity‘ in The Criminal
Process (Oxford Oxford University Press 2005) 114.
111
D.Walsh Human Rights and Policing in Ireland (Dublin Clarus Press 2009) 175. Professor Walsh notes that
ideally there will be a judicial element in the sanctioning and supervision of surveillance.
112
s 12 (3) of the 2009 Act states that the functions of the designated judge are to (a) keep under review the
operation of ss 4 - 8, and (b) report to the Taoiseach from time to time and at least once every 12 months
concerning any matters relating to the operation of those sections that the designated judge considers should be
reported.
113
Under s 12(8) of the 2009 Act where a designated Judge investigates a case under ss (4) and is of the opinion
that it is in the interests of justice to do so, he or she may refer that case to the Referee for an investigation under
s 11(11).
114
Klass v Germany (n 6).
115
Annual Report of the Chief Surveillance Commissioner to the Prime Minister and to Scottish Ministers for
2008-2009 (London: The Stationary Office, 2009).
116
ibid. See app A, 21.
117
ibid. See app B, 22.
118
ibid. See app C, 23 which show whether the places were private homes, a business premises or other
location.
39
[2010] COLR
failure by those conducting covert surveillance to base their activity on what was authorised
as opposed to what was requested.119 Similarly, the report of the Interception of
Communications Commissioner for 2008 gives a detailed account of all intercepted
communications carried out by the various authorised bodies in the United Kingdom. 120 The
degree of interaction between the Commissioner and those involved in the surveillance is
ongoing and in-depth. For example, the Commissioner visits officers undertaking
interception work and goes through a sample of warrants to ensure they meet the required
standard.121 The Commissioner discusses various files with the officers concerned to ensure
that codes of practice have been followed.122
Mr Justice Iarfhlaith O‘Neill is the current designated High Court judge assigned to
oversee the operation of phone tapping under the 1993 Act and data retention under Criminal
Justice (Terrorist Offences) Act, 2005. His most recent report dated 5 December 2008 is a
one-page document.123 The document reports that Judge O‘Neill attended at Garda
Headquarters, Dublin and later on that day attended at McKee Barracks, Dublin and at the
offices of the Department of Justice, Equality, and Law Reform in Dublin on 4 December
2008. Justice O‘Neill states that he examined documents and records relating to the
operation of the above Acts and spoke with the persons with responsibility for the operation
of these Acts at each location. He concludes by declaring that he was satisfied that there was
compliance with the provision of the relevant Acts. This report lacks the detail of the similar
United Kingdom reports. Information relating to the number of intercepts authorised, internal
controls, storage, and security of the intercepted material are not addressed. The case law of
the ECtHR has clearly stated there should be sufficient guarantees against the risk of
abuse.124 It is far from certain that a visit once a year by the designated judge followed by a
one-page report on all surveillance undertaken in this jurisdiction will meet these guarantees
in light of the detailed material that is made available in other jurisdictions.
5
Surveillance and the Garda Síochána Ombudsman Commission
Section 17 of the 2009 Act amends section 98(5) of the Garda Síochána Act, 2005.125 The
Garda Síochána Ombudsman Commission (GSOC) is tasked with investigating complaints
against members of An Garda Síochána. This includes investigating arrestable offences
committed by Gardaí.126 It also includes the investigation of incidents where Gardaí are
involved and which have led to serious injury and death. 127 This amendment excludes the
(GSOC) from any of the provisions of 2009 Act. In other words, the GSOC is not legally
empowered to carry out surveillance as part of its investigation of complaints relating to An
119
ibid 13-14. See common causes of error.
See Report of the Interception of Communications Commissioner for 2008. Commissioner Sir Paul Kennedy
presented this report to the United Kingdom parliament pursuant to s 58(6) of the Regulation of the
Investigatory Powers Act 2000.
121
ibid 2.
122
ibid.
123
See Report of the Designated Judge pursuant to s 8(2) of the Interception of Postal Packets and
Telecommunications Messages (Regulation) Act 1993 and the Criminal Justice (Terrorist Offences) Act 2005.
124
Liberty, Klass, Valenzuela and Kopp discussed above.
125
s 98(1) of An Garda Síochána Act, 2005 states that a designated officer of the GSOC has all the powers,
immunities and privileges conferred and all the duties imposed on any member of the Garda Síochána by or
under any enactment or the common law. s 98(5) outlines exceptions to s 98(1) namely the Offences Against
the State Act 1939/1998 and the Interception of the Postal Packets and Telecommunications Messages
(Regulation) Act, 1993.
126
s 82(1) and s 98 of An Garda Síochána Act, 2005.
127
s 91 of An Garda Síochána Act, 2005.
120
40
[2010] COLR
Garda Síochána. The Minster for Justice, Equality, and Law Reform justified excluding the
GSOC from the provisions of the Act on a number of grounds. Firstly, on the basis that the
GSOC was a new organisation and that they needed some time to establish themselves before
it was considered prudent to consider giving them the surveillance powers contained in the
Act.128 Secondly, he made the point that the powers contained in the 2009 Act were focused
on targeting serious crime and terrorism129 and that these offences would not be the usual
focus of GSOC investigations.
There are a number of potential problems in excluding the GSOC from the 2009
Act. The first issue concerns the ability of the GSOC to investigate complaints against
Gardaí when it does not have the same powers. In situations where the GSOC has to
investigate serious crime, it will not have the power to carry out surveillance as defined in the
2009 Act. The ECtHR has clearly stated that where it is alleged that State authorities have
committed offences, the appropriate investigating authorities should have the same powers to
carry out investigations as the agencies of the State have in investigating offences committed
by members of the public.130 In the United Kingdom, the police investigations body namely
the Independent Police Complaints Commission (IPCC) has the power to issue authorisations
to carry out surveillance.131 It would have seemed prudent for the legislation to contain some
provision whereby the GSOC could request the Gardaí to carry out surveillance on their
behalf and under the direction of a senior member of the GSOC. It is clear that the GSOC
would not have the surveillance resources available to them in comparison to the Gardaí.
This measure would ensure that the legislation would be compatible with the jurisprudence of
the ECtHR in this matter and in line with best practices in other States.
E
CONCLUSION
From an Irish reader‘s viewpoint, the decision of the court in Liberty132 is important. In this
era of innovative technology, the ECtHR drew a line in the sand at mass surveillance and was
not prepared to accept terms such as State security as a legal basis for the monitoring of large
amounts of communications traffic. The decisions of the ECtHR have set out in a clear and
logical manner the requirements that authorities undertaking surveillance must adhere to.
The 2009 Act is a genuine attempt to bring Irish law in this area into line with other countries
in Europe. This paper sought to track the evolution of the law in this area focusing on the
ECtHR and 2009 Act. Prior to the 2009 Act being enacted there was a clear legislative
vacuum in relation to covert surveillance. However, it cannot be stated with any degree of
certainty that the 2009 Act in its entirety will pass the legal hurdles that both the Higher
Courts in Ireland and the ECtHR will present in light of the potential problems identified in
this paper.
128
30 Dáil Debates (11 June 2009) 26.
ibid.
130
Jordan v United Kingdom Judgment of 4 May 2001, Application no.24746/94 para 107.
131
Under s 4 of the Independent Police Complaints Commission (Investigatory Powers) Order 2004, senior
office holders of the IPCC can issue surveillance authorisations.
132
Liberty and Others v The United Kingdom (n 74).
129
41
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BALANCING CONFLICTING INTERESTS DURING PREGNANCY:
ULTRASOUND v. REALITY
Anthanasia Hadjigeorgiou *
ABSTRACT
The article examines whether it is morally correct and legally possible to police a pregnant
woman‟s behaviour in order to protect the foetus. The first part of the paper discusses
whether a pregnant woman should be forced to have a caesarean section; it proposes a
„modified competency test‟ which begins with the rebuttable presumption that the competent
woman can refuse the operation if she offers at least one reason for her decision. The second
part of the paper asks what should be the law‟s reaction in cases where the pregnant addict
causes serious injury or death to the foetus. There can be a criminal prosecution, civil
liability or taking the baby from the mother as soon as she gives birth. Finally, a „middle
solution‟ is proposed which encourages women to come forward so that they can be
rehabilitated. In both debates the pregnant woman should be the one who decides about her
own future and society should only have a residual role; only this method will adequately
protect both the mother‟s and the foetus‟ interests.
A
INTRODUCTION
The patient‘s right to control her body is so well established, at least in theory, that it has
almost become a mantra. If a paranoid, schizophrenic man can decide whether he wants his
leg amputated or not1 then all competent people have the right to decide whether anyone can
touch their body, no matter the consequences. This is both legally and morally correct;
however, does the same principle apply to pregnant women? In particular, should a pregnant
woman be able to deny a life-saving (for her and her foetus) caesarean section? The law on
the importance of patient autonomy seems settled; but as Lord Mustill stated in AG‟s
Reference (No.3 of 1994), 2 ‗[t]he relationship was one of bond, not identity.‘3 The mother
and the foetus were two distinct organisms living symbiotically, not a single organism with
two aspects. The mother‘s leg was part of the mother; the foetus was not. Clearly, autonomy
is not the only consideration to be taken into account in these circumstances.
The debate largely rests on whether a pregnant woman is the only person who can
decide what happens to her body or whether society, in the voice of the doctor or the judge,
has a say as well. The question is a difficult one: on one hand, pregnant women should not
be treated differently than anyone else. They make sacrifices for the foetus they carry inside
them that no one knows of. If they are not willing to make this ultimate sacrifice, that is their
right and they should not be morally blamed or legally punished. On the other hand, they
consented to the risks of pregnancy, including a caesarean section when they decided not to
have an abortion, thus establishing a moral obligation towards the foetus.
However, the question of a forced caesarean section cannot be seen in isolation from
other maternity questions. If society has the right to trespass the woman‘s right of autonomy
and self-determination during the delivery of the child, then it arguably has the right to
impose some limits on what she can do during the gestation period as well. This raises
another series of difficult issues: even though it is easy to say that a woman should not be
* LLB (Hons) (University College London), LLM Candidate (Cambridge University).
1
Re C [1994] 1 All ER 819.
2
[1998] AC 245.
3
ibid 255.
[2010] COLR
using heroin while pregnant, it is more difficult to consider an addicted woman who has been
turned down by the rehabilitation centre due to limited resources as morally culpable.
Moreover, if we decide that such behaviour is both immoral towards the foetus and society‘s
values, is it also worth punishing? If our aim is to punish the woman for failing to meet
society‘s standards, then post-delivery punishment might be legitimate; but if we are trying to
protect the foetus, punishment is simply unproductive, unless we accept that it could
potentially have a deterrent effect to future pregnant women. The first part of this essay will
deal with forced caesarean section and the second part with society‘s right to interfere during
the nine-month gestation period.
B
1
THE CAESAREAN SECTION DEBATE
The Pregnant Woman‟s Self-Determination
Following the case of St George‟s NHS Trust v S ,4 the law finally seems settled: everyone,
including a woman carrying a viable foetus, has the right to decide how her body is treated.
If that compromises hers and her baby‘s life, it is an acceptable price to be paid for ensuring
the patient‘s autonomy. As it was stated in Re MB (An Adult: Medical Treatment) ‗the
mother may indeed later regret the outcome, but the alternative would be an unwanted
invasion of the right of the woman to make a decision.‘5 There is no certain definition of
autonomy; all we can say is that it encompasses the right to determine by ourselves what we
want to happen to something as intimate as our body. In Sperling‘s words, the pregnant
woman scenario is the ‗test case for the protection of the woman‘s right of self-determination
in the eyes of the law.‘6 Even in the developed world, one in every 10,000 women dies as a
result of a caesarean section.7 20-45% of women who go through a caesarean section have an
operation-associated infection while the chances of suffering from pulmonary embolism and
dying are nine times higher than with normal vaginal delivery. 8 If a woman is not allowed to
decide whether to go through such risks, then the whole concept of autonomy must be unreal.
These statistics suggest that caesarean section is a risky operation; yet, it is the most
popular operation in the UK with women increasingly asking for it themselves.9 It is thus
likely that feminists exaggerate the dangers of the operation. As Dr. Kalakoutis states: ‗Yes
there is a risk in a [c]aesarean [s]ection, just like there is a risk in a normal delivery and just
like there is risk in a nail removal operation.‘10 Moreover, one could argue that a caesarean
section does not compromise the woman‘s autonomy since she considered these risks and
consented to them when she decided not to have an abortion: she made an informed choice in
keeping the baby and that included the chance of having to go through the operation to bring
the baby safe into the world. 16% of pregnant women who give birth in the UK have a
4
[1998] 3 WLR 936.
[1997] 2 FLR 426.
6
D Sperling Management of Post-Mortem Pregnancy, Legal and Philosophical Aspects (Ashgate Publishing
Hampshire 2006) 20.
7
Interview with Gabriel M Kalakoutis, Gynaecologist and Consultant at Aretaeio Hospital (Nicosia Cyprus 2
January 2009).
8
W Savage ‗Caesarean section: Who Chooses – The Woman Or Her Doctor?‘ in D Dickenson (ed) Ethical
Issues in Maternal – Foetal Medicine (Cambridge University Press Cambridge 2002) 264.
9
ibid 265.
10
Kalakoutis (n 7).
5
43
[2010] COLR
caesarean section and she could well have been one of them. 11 Therefore, the selfdetermination argument fails to capture the whole picture as ‗a unique situation: a situation
where there is a particular need to examine what is meant by autonomous choice, given that
the woman has made a decision to continue with the pregnancy.‘12 The traditional
understanding of autonomy, as the ‗trump card beating all the other principles,13 creates an all
or nothing approach and in an attempt to completely protect the woman‘s rights, it
completely ignores not only the foetal rights that are at stake, but society‘s duty to protect
human life in general.
Sperling14 mentions the possibility of a woman who did not impliedly consent to
caesarean section because she never really had a chance to have an abortion. She might have
kept the foetus not as a result of a deliberate choice but because of lack of access to
therapeutic abortion, cultural, social, familial and personal constraints. With due respect, this
author finds this argument insulting to all the women who have a legitimate reason for
denying a caesarean section: if Sperling‘s argument was accepted, it would lead to a double
tragedy. Just because the woman was unfortunate enough to be forced to go through a
pregnancy, that does not give her the right to kill the foetus at a later, in fact the latest, stage.
Two wrongs simply do not make a right and if she does not want the foetus, she can give it
up for adoption, not kill it by claiming that she has a right to do so by appealing to her selfdetermination as a human being.
Dworkin gives a useful example of the interaction between paternalism and
autonomous decisions. 15 Ancient Greek mythology said that when Odysseus was passing by
the island of the Sirens, he ordered his men to tie him to a pole and ignore all his later orders
to approach the island until they could no longer hear the Sirens‘ song. This is because their
song would lure him onto the island, where he would face definite death. It could be argued
that even if he had not given such an order, the sailors would be justified in acting
paternalistically and ignoring his orders because they would be protecting his life, thus
ensuring his long term autonomy. After all, ‗autonomy is of no value to a dead person.‘16
Although this is a good example where paternalism and autonomy align, it cannot be equated
with the pregnant woman scenario. It can be assumed that long term survival was part of
Odysseus‘ plan but in the case of the pregnant woman, the exercise of paternalism could
result in a quality of life that the woman considers insufficient in reflecting a satisfactory
understanding of herself.17 Arguably, survival is not worth much if you do not have
something worth surviving for.
2
The Discrimination Argument
The autonomy argument is supported by feminists who argue that pregnant women, like
every other human being, have a right to control their body and that forcing them to go
through the operation, is discriminatory.18 However, the discrimination argument is flawed
in that it ignores the fact that the pregnant woman is treated differently precisely because she
11
Sperling (n 6) 265.
ibid.
13
M Brazier ‗Do No Harm – Do Patients Have Responsibilities Too?‘ (2006) Cambridge Law Journal 65(2)
397, 400.
14
Sperling (n 6) 21.
15
G Dworkin The Theory and Practice of Autonomy (Cambridge University Press Cambridge 1988) 14.
16
S Glick ‗The Morality of Coercion‘ (2000) 26 Journal of Medical Ethics 393.
17
M Stauch ‗Court Authorised Caesarean Sections and the Principle of Patient Autonomy: Re MB (an Adult:
Medical Treatment)‘ (1997) 6 Nottingham Law Review 74.
18
R Roth Making Women Pay : The Hidden Costs of Foetal Rights (Cornell University Press Cornell 2000).
12
44
[2010] COLR
is different from everyone else. She carries a viable human being inside her and she has the
moral, if not legal obligation to protect it.
The classic feminist argument is that the law does not oblige a father to go through a
kidney transplant operation to save his child and neither should it oblige a woman to go
through an equally dangerous operation to deliver a foetus that is not even considered an
entity under the law.19 However, this is not a question of legal obligations but of moral ones.
The question that should be asked is: is a father morally obliged to give a kidney to save his
child‘s life? This depends on a number of factors: what are the risks of the operation, is there
anyone else to take care of his other children and bring money to the family while he is
recovering from the operation, what are the chances of the operation succeeding etc. Only he
can assess the advantages and disadvantages of such a decision because it reflects his
understanding of life as a human being and when he does, his decision is respected. One
wonders why a pregnant woman is to be treated differently. One could argue that the
pregnant woman and the father are not like situations. A father is not obliged to go through
the operation because he might have conflicting moral obligations and only he can decide
between them. A pregnant woman on the other hand, should have a legal obligation to
deliver the child because her reasons for not wanting to go through with the operation are
purely selfish: she is allowing her child to die because she is afraid of needles,20 because she
believes that a blood transfusion would compromise her religion21 or because believes in
nature taking its course.22 However, the picture is not always black and white: is the woman
who refuses to have a caesarean section because she will return to Nigeria where the
necessary equipment for a possible second caesarean section23 will not be available being
selfish, or merely exercising the right given by her very existence, to reproduce? The
argument of culpability being based on selfishness is unpersuasive because the pregnant
woman, like the father in this example, has to balance conflicting moral obligations. After
all, arguably the sacrifice of a child to prove one‘s devotion to God24 is anything but selfish.
Since there are situations where the pregnant woman will have to balance conflicting moral
interests as well, she should be given a chance to do so and her choice should be respected.
It has been argued that the biggest danger in treating women differently from anyone
else is fear of the slippery slope:25 once women are denied the right to refuse treatment at
delivery, there are logically no lengths to which doctors and courts can go to protect human
life. However, the caesarean section scenario does not include a slippery slope danger at all.
We are already at the bottom of the slope and the law can demand no more.26 This is not
necessarily a bad thing; after all, strict liability is not a foreign idea in the Anglo-American
legal system. Sperling27 argues that the standard of reasonable care is the only relevant
standard in the parent-child relationship and is a constant one. Since it is not a standard of
perfection, it cannot demand from a pregnant woman to risk her life for her baby. However,
19
ibid.
Re MB (An Adult: Medical Treatment) [1997] 2 FLR 426.
21
Re S (Adult: Refusal of Treatment) [1992] 4 All ER 671.
22
Re S (Hospital Patient: Court‘s jurisdiction) [1996] Fam 123.
23
These were the facts of Re S (Adult Refusal of Treatment) [1997] 2 FCR 541 CA. Medical evidence presented
to Court stated that it is likely that if the woman has a caesarean section in her first birth, she will need a
caesarean section for all her other births as well.
24
For example, in the case of a Jehovah‘s Witness refusing a caesarean section.
25
R Roth ‗At Women‘s Expense: The Cost Of Foetal Rights‘ in J Merrick and R Blank (eds) The Politics of
Pregnancy: Policy Dilemmas in the Maternal-Foetal Relationship (Kluwer Academic Publishers Netherlands
1993).
26
Strictly speaking this is not true; policing of pregnancy during the whole nine months can arguably be at least
as intrusive. A detailed discussion of this follows in the second part of the paper.
27
Sperling (n 6).
20
45
[2010] COLR
logically this argument must be wrong. The parent‘s obligation towards the child is affected
by the child‘s dependency on the parent. The parent might be able to leave a child to play in
the park alone when he is 12, but not when he is two; similarly, he might not have an
obligation to hold his 15 year-old son by the hand in a busy place but he has the obligation to
do so if the son is severely disabled or blind. One‘s responsibility is relative to the other‘s
dependency. If one accepts the argument that the foetus is the most vulnerable type of a child
(albeit morally if not legally), then caesarean section cannot be rejected on a slippery slope
argument: since the foetus is at its most vulnerable state, the mother cannot be asked to do
anything more than what she is being asked to do now.
3
The Foetus and the Law
A foetus is not considered a legal entity under the law, thus it does not possess any legal
rights. However, this does not preclude the possibility of the foetus being owed some moral
rights because it was given a moral personality by the pregnant woman when she decided to
carry on with the pregnancy. This counter-argument to autonomy is supported by a number
of judicial statements. Lord Justice Judge in St George‟s NHS Trust v S 28made this point
clearly when he said that ‗what else it may be, a 36 week foetus is not nothing: if viable it is
not lifeless and is certainly human.‘29 The most obvious example of the law recognising
some rights in the foetus is the prohibition of abortion in the majority of cases after the 24th
week of pregnancy.30 This is precisely because around the 24th week the foetus becomes
viable and society feels that it must protect the right to life of a future human being. If the
law is willing to trump the mother‘s autonomous decision in the context of abortion to protect
the foetus (unless her health is at risk or there is a significant risk that the foetus will be
severely handicapped), then it is at least arguable that it has the same right in the case of a
forced caesarean section. Additionally, if policy arguments can be used to vitiate a freely
given consent where harm is likely to occur,31 then one should at least consider the possibility
that society can sidestep the woman‘s non-consent on the same grounds.32 These arguments
are even stronger if we consider that we are not only protecting the moral interests of the
foetus but the future legal interests of the person that this foetus will become. As Dr.
Kalakoutis33 argues, ‗[i]sn‘t it the same as injuring someone in order to prevent him from
murdering a third person? My conscience is clean.‘34 Dr. Kalakoutis‘s reaction reflects the
argument that as technology progresses, so should our understanding of morality. When the
foetus is removed from the ‗secrecy of the womb‘35 through ultrasound, it not only acquires
social recognition, but it also enhances the doctor‘s perception that he is dealing with a
second patient. It will thus be my position throughout this essay that despite the fact that the
foetus‘ rights cannot always trump the rights of the mother, similarly it cannot be argued that
the mother can decide what she will do without consideration towards the foetus simply on
the basis of autonomy.
28
[1998] 3 WLR 936.
ibid 952.
30
Abortion Act 1967 s 1(1), as amended by the Human Fertilisation and Embryology Act 1990.
31
R v Brown [1993] 2 All ER 75.
32
A Maclean ‗Caesarean Sections, Competence and the Illusion of Autonomy‘ (1999) 1 Web Journal of Current
Legal Issues 4.
33
Kalakoutis (n 7).
34
ibid.
35
R Blank ‗Maternal Fetal Relationship: The Courts and Social Policy‘ in S Shirwan and B Parish (eds) Women,
Medicine, Ethics and the Law (Dartmouth Publishing Dartmouth 2002) 129.
29
46
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4
The Pregnant Woman‟s Perspective
The third argument frequently presented by feminists, is that a pregnant woman knows better
than her doctors; the intimate relationship she has developed with the foetus simply points to
the fact that a natural delivery would be the best way to go about things.36 Sperling also
argues that as a consequence of a forced caesarean section, the mother‘s relationship with her
future baby might be compromised because the baby ‗made‘ her do something she did not
want to or because it did not rise up to the expectation of the natural delivery she wanted to
have.37 However, both of these arguments are unpersuasive. Most of us would blame a
doctor for forcing a woman to have a mastectomy when he knows full well that she can have
chemotherapy instead, because it is a very personal decision that only impacts on her body.
But with the risk of sounding paternalistic, this is one of the situations where the doctor truly
knows best – if the umbilical cord is tied around the foetus‘ neck or if the foetus is not in the
right position in order to be delivered naturally, it is a question of fact and not of gut feeling.
As for the argument that the mother will be disappointed by her baby, this again cannot stand.
Parents sometimes expect things that their children simply cannot deliver: it‘s wrong for a
mother‘s relationship with her child to be negatively influenced because the child is not as
good an athlete as she wanted him to be; and it‘s preposterous to argue that a mother is
negatively predisposed against her child because as a baby it cried more than she expected.
Why is the mode of delivery any less absurd of an example?
Perhaps the most powerful argument against caesarean section is the consequentialist
argument. The phrase ‗forced caesarean section‘ has been repeated so many times, that it no
longer makes an impact, yet its effects are profound. The woman will presumably be
protesting strongly before the delivery and after it she will need time to recover from an
operation that not only injured her physically but also psychologically. It is important to bear
in mind what this process does to the woman‘s trust towards the medical profession. It is
thus likely that the next time she becomes pregnant; she will prefer to deliver the baby at
home, putting hers and the foetus‘ life at risk.38 It is perhaps easy to exaggerate this
argument: Dr Savage, in her 35 years as a doctor, only saw two cases in which the woman
absolutely refused caesarean section.39 Similarly, Dr. Kalakoutis in his 30 years of
experience in Cyprus only saw one such case. However, these numerically limited cases are
likely to be overexploited by the press, giving the impression that this is a frequent
phenomenon, thus frightening women away from hospitals. Dr. Savage gives an example of
the dangers inherent in such paternalist attitudes: the patient was a 16 year-old woman who
did not speak English and her husband (a devout Muslim) would not consent to a caesarean
section. When it became apparent that she could not deliver the baby naturally he agreed to
the operation but by that time the baby had died because it could not come out of her
unusually small pelvis. In the following years she delivered six healthy babies with
caesarean section. Dr. Savage concludes: ‗If we had gone to court, would he have tried to
have his wife deliver at home the next time and perhaps die from a ruptured uterus? An
unanswerable question.‘40 If he did, not only would the doctors have indirectly compromised
her life, but the life of every other pregnant woman in a similar situation who read the story.
36
Re AC 573 A2d 1235 (1990). This was one of the very first cases in the USA where a forced caesarean
section was ordered; it made the news and became known as the ‗Angela Carter‘ case.
37
Sperling (n 6) 24.
38
Kalakoutis (n 7).
39
ibid.
40
Kalakoutis (n 7) 279.
47
[2010] COLR
Therefore, even if one has the foetus‘s best interests in mind rather than the mother‘s, a
forced caesarean section is simply not the answer.
5
What Direction Should the Law Take?
As illustrated above, at the centre of all these arguments lie two conflicting interests: the
interest of the foetus to live and the interest of the mother to exercise her fundamental right as
a human being and determine her actions. The law today (at least in theory) sees autonomy
as the principle that should always prevail. However, ‗the current emphasis upon the need to
uphold autonomy is as dangerous as the previous emphasis upon the value of the unborn
child.‘41 This is because no principle can always be supreme over the other; a more subtle
test balancing the two principles is appropriate.
Both sides have equally strong ethical arguments but medical ethics have to be
applied in real world situations. Initially the argument whether a foetus lives or dies should
depend on the mother‘s reasons sounds appealing. However, it must be rejected both on
ethical and on practical grounds. If the test tries to determine whether the mother is being
selfish, as was suggested in the kidney transplant example, her right of autonomy is
completely ignored: autonomy is after all worth nothing if it is only exercised when it is
compatible with the doctor‘s, the judge‘s or the majority‘s opinion. On more practical
grounds, this criterion is problematic because it simply cannot be applied fairly. Most
women only find out that they must go through a caesarean section after the contractions
have started, when they are already exhausted from the long hours and the pain. A decision
will have to be taken quickly, sometimes over the phone, even more frequently with the
woman‘s opinion not even being heard because she does not have a lawyer. 42 In cases where
the woman‘s voice cannot be heard, the doctors are likely to give false or misleading
information, leading the judge to decide in favour of the forced operation. For example, St
George‟s NHS Trust v S 43 was heard during the lunch break and the court was falsely told
that the woman was in labour for 24 hours and that ‗every minute counted,‘44 This trend is
reflected in the fact that 86% of the cases that have been heard by a judge resulted in a
caesarean section.45 Dr. Kalakoutis‘s statement when asked what he would do when a woman
did not consent to the operation was clear: ‗I would go ahead with it, since I would be
protected by a court order.‘46 He did not even assume that the court might decide the other
way and this is possibly because the court will only hear the one side of the story.47
The vast majority of women consent to caesarean section. Those who do not,
presumably do so because they feel strongly about the whole procedure. Some are justified,
others are not. It is easy when you have all the time in the world to decide that the needle
phobia patient should have the operation because it protects her long term autonomy but the
Nigerian woman should not. Unfortunately, in such situations, time is not always available.
If we allow doctors to invade a woman‘s body when they feel they must, they will do so even
though the baby might be born unharmed by natural delivery as well. If we only allow
women to decide, then there will be deaths that could be prevented. None of the two
41
Dworkin (n 14) 300.
Savage (n 8). In 5 out of 7 cases were a court order was obtained the woman was not represented by a
barrister or a solicitor so her side was not heard.
43
[1998] 3 WLR 936.
44
ibid 947.
45
V Kolder, J Gallagher and MT Parsons ‗Court Ordered Obstetrical Interventions' (1987) The New England
Journal of Medicine 316, 29-54.
46
Kalakoutis (n 7).
47
This is so even though doctors in Cyprus follow the English guidelines on such issues.
42
48
[2010] COLR
solutions will prevent tragedies 100%, but by having all the ethical and practical
considerations in mind, it is safer to let the woman decide. This author is in agreement with
Herring48 that few pregnant women take a decision without taking into account the interests
of the foetus. However, objections can be raised to the solution he proposes: to ask what the
ordinary woman would want. Surely, this cannot be the solution. If we were dealing with
‗ordinary women,‘ we would not be in this dilemma because the majority of them are very
much willing to go through the operation to deliver a healthy child. Therefore, such a test
would completely ignore the woman‘s wishes as it would always find against her.
As Lord Justice Thorpe49 pointed out: ‗[i]t is perhaps easier for an appellate court to
discern principle than it is for a trial court to apply it in the face of judicial instinct, training
and emotion.‘50 This is apparent in another context as well: while the majority of scholars
reach the conclusion that the woman‘s autonomy should be protected, the majority of the
courts dealing with hard facts reach the opposite conclusion. It is much easier to talk of high
values such as autonomy and self-determination when you know that what you say will not
cost a human life. The problem with accepting that courts are at least excused in wanting to
protect the foetus‘s life when faced with the opportunity is that there is a pattern in the cases
where caesarean section is forced: Janet Gallagher quotes a survey: 81% of the women
subjected to court orders in the US were black, Asian or Hispanic, 44% were unmarried, 24%
did not speak English as their primary language and none was a private patient.51 This is
because these women are less capable of conveying the reasoning of their decisions because
of language barriers and cultural discrimination. If the courts are to be given an opportunity
to interfere, the test used must ensure that this is done fairly.
The proposed test therefore is to allow the woman to have the first and more
influential say in this. This is not because her autonomy is the paramount principle; on the
contrary, it is because she is the person who has created the strongest bond with the foetus. It
is thus much more likely that the woman will have balanced all the factors and reached a
better conclusion on what to do in such a difficult situation than a judge who has considered
the matter for 20 minutes and does not have all the facts in front of him. This test does not
imply that the woman‘s opinion will always prevail because we must not exclude the
possibility that she truly does not have the capacity to decide whether to go through with the
operation. An example of that is Norfolk and Norwich Healthcare NHS Trust v W.52 The
woman in this case was admitted to the hospital in a state of arrested labour but was denying
the fact that she was pregnant. The judge in this case correctly decided that she was not in a
position to decide whether she could have the operation. Nevertheless, in the majority of
cases, the woman will be competent, will have thought of the implications of her decision in
advance and her decision and justifications will have to be respected. This means that the
competence test will have to be applied to her just like it would be applied to any other
person, with one modification. The woman should not be able to refuse treatment for no
reason at all53 because that would suggest that she has not carried out the balancing exercise
this suggestion requires. However, if the woman provides a reason, that reason should be
respected. This would mean that some foetuses might die for reasons that the majority does
not understand and does not agree with. At the same time, the relationship between the
48
J Herring ‗Reproductive Technology and the Law: The Caesarean Section Cases and the Supremacy of
Autonomy‘ 2000 3 Law and Medicine Current Legal Issues.
49
‗A Woman‘s Freedom from Attack‘ The Times (8 July 1997).
50
ibid.
51
J Gallagher ‗Foetus as Patient‘ in S Cohen and N Taub (eds) Reproductive Laws for the 1990s (Humana Press
1989) 203.
52
[1996] 2 FCR 613.
53
Re T [1993] Fam 95, 102 (Lord Donaldson).
49
[2010] COLR
doctor and the woman must also be one of trust and not only of protection: the doctor must
trust that the woman took her decision responsibly, balancing not only the advantages for her
but her future child as well. Surely, no one can do this better than her.
C
1
THE POLICING OF WOMEN DURING PREGNANCY DEBATE
Arguments For and Against a Tougher Approach
Having decided that one cannot morally or legally impose an obligation on a woman to have
a caesarean section simply because she is pregnant, one needs to discuss whether she has any
obligations during the nine months of the pregnancy itself. The court in St George‟s NHS
Trust v S 54 stated that ‗while pregnancy increases the personal responsibilities of a woman, it
does not diminish her entitlement to decide whether or not to undergo medical treatment.‘55
If one agrees with the second part of the statement, it is not entirely clear what is meant by
the first. What added ‗personal responsibilities‘ exist in the case of a pregnant woman? In a
number of jurisdictions, courts have found third parties liable for harm done (even to nonviable) foetuses.56 It is thus at least arguable that the same responsibility should exist for the
primary carer of the foetus, the pregnant woman herself. However, this is a question where
ethics should determine the law and not the other way round. Thus, the question should not
be what the courts will decide, but what they should decide. Finally, one should consider, if
the woman has legally enforceable obligations during the gestation period, what sanctions
should attach on them?
By ‗personal responsibilities‘ one can mean any number of obligations: some doctors
believe that daily walking and listening to classical music helps the foetus develop into a
healthier baby,57 smoking and drinking alcohol are not illegal activities but they are strongly
recommended against by doctors58 and drug abuse is both illegal and destructive for the
foetus‘s health.59 Therefore, should pregnant women be policed in their actions and if so,
where do we draw the line? This essay will only deal with the most difficult issue: is a
pregnant woman who is addicted to drugs morally culpable and/or legally punishable for the
death or serious injury of her child?
In most cases, the critical period of the foetus‘s development is between the third and
the twelfth week of the pregnancy but some organs, including the brain, develop throughout
the nine months.60 One could argue that even though the infringement on the woman‘s
privacy in this case is much more prolonged than in the forced caesarean section situation,
her autonomy is not violated to the same extent. Justification for that is derived from
Dworkin‘s Odysseus example mentioned in the first section: in that case, paternalism and
Odysseus‘ long term autonomy were aligned. Similarly, in this case, it is in the best interest
of the woman to stop using drugs whether she is pregnant or not. The State already infringes
an addict‘s autonomy by criminalising such behaviour; now the law simply becomes more
restrictive because there is another life at stake. One should thus look at the policing of
54
[1998] 3 WLR 936.
ibid 957.
56
VO v France (2005) 40 EHRR.
57
J L Hopson ‗Foetal Psychology‘ (1998) 31 (5) Psychology Today 44.
58
S Higgins ‗Smoking in Pregnancy‘ (2002) 14 Current Opinion in Obstetrics and Gynaecology 14.
59
L Curet and C Andrew ‗Drug Abuse during Pregnancy‘ (2002) 45 Clinical Obstetrics and Gynaecology 73.
60
R Blank (n 33) 133.
55
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pregnancy debate not in terms of conflict between the mother and the foetus, but in terms of
shared interests and obligations owed by society to both of them.61
In a different context, Bonnie Steinbock62 argued that drink driving is always immoral
because even though the alcoholic has no control over his desire for the substance, he has
control on whether to drive a car. Here, it could be argued that a pregnant addict is not acting
as immorally as the alcoholic driver. Unlike her husband who can leave the room to have a
cigarette, or the alcoholic who can take a taxi, she cannot separate herself, thus her actions,
from the foetus. That does not mean that by taking drugs she is not acting immorally, it
merely suggests that not everyone is as culpable as our initial reactions would suggest.
Bewley63 suggests that the way to determine the culpability of the woman is to balance what
she is sacrificing against what harm she is preventing. She gives the example of soft cheese:
doctors believe that some soft cheese has adverse effects on the embryo. She thus argues that
a woman who fails to stop eating gorgonzola is much more morally culpable that a woman
who cannot get off her heroin addiction. Although this is persuasive on the facts of the
example, it can lead to problematic conclusions since it suggests that the same effort is
required from each individual to stop using drugs. In reality, two women who have been
taking the same drug for the same time will not behave in the same way during rehabilitation
because drug taking is largely connected with psychological and not only physical factors.64
Therefore, such a test for culpability would lead to the unfair situation of putting addict
women in groups of more and less blameworthy people depending on their emotional status
at the time.
The argument in favour of policing pregnancy is that the woman has impliedly agreed
that she would deliver the foetus not only alive, but to the best of her powers, healthy. As the
court put it in Smith v Brennan, ‗a child has a legal right to begin life with a sound mind and
body‘.65 She therefore has a moral obligation as a mother to stop possible harmful actions.
Coupled with that, is the argument that the same obligation is imposed on her by society
which has an interest in protecting its children and ensuring that they will suffer from the
minimum possible harm. The fact that the pregnant woman has already gone through
enormous sacrifices for the foetus should not matter; taking drugs is one of the factors that
makes her automatically morally liable for harming the foetus.
Having mentioned society‘s obligations towards the foetus however, one should not
forget that it also has obligations towards the woman. These include an obligation to protect
women‘s rights, rights that have only been recognised in the last part of the twentieth century
and are still not well cemented. Feminists are thus justifiably worried that policing
pregnancy will take us back to the days when ‗enslavement of women was justified as
biological destiny.‘66 If we can force women to stop taking drugs or smoking on policy
grounds, then an employer who fires a pregnant woman from a more risky working
environment on grounds of protecting the foetus might have an arguable case. Following
from that, it is not difficult to imagine a situation whereby women of child bearing age
(which is most of their life) are stopped from working in more dangerous environments. This
becomes even more discriminatory because studies show that long term exposure of a man to
hazardous conditions does not make him infertile as was originally thought, but can affect the
61
ibid 138.
B Steinbock ‗Drunk Driving‘ (1985) 14 Philosophy and Public Affairs 278-95.
63
S Bewley ‗Restricting the Freedom of Pregnant Women‘ in D Dickenson (ed) Ethical Issues in Maternal –
Foetal Medicine (Cambridge University Press Cambridge 2002) 141.
64
S Jones and P Heaven ‗Psychosocial Correlates of Adolescent Drug-Taking Behaviour‘ (1998) 21 Journal of
Adolescence 127, 134.
65
(1960) Ad 2497, 503.
66
Bewley (n 60) 130.
62
51
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quality of his sperm.67 Clearly a woman is more connected to the foetus than the man, but
both contribute it its health condition. Where is the line between protecting the foetus and
discriminating against the woman drawn?
2
What are the Possible Approaches the Law Could Take?
A right means nothing if it cannot be enforced. If the foetus has such a right, what actions
will the future child or society itself be able to take against the woman? There are a number
of options, but arguably the most effective punishment or deterrent will be the woman‘s
knowledge that she is hurting her child. One should therefore consider whether the threat of
going to prison for manslaughter could convince a woman to stop taking drugs. There are
already criminal sanctions against drug-taking but they have proven ineffective as deterrents.
After all, anyone who understands the situation in which a heroin addict is found, must know
that the woman does not really ‗want‘ to take the drugs, she ‗needs‘ to. She wants to save her
child but her need for heroin might be stronger. Similarly then, she might want to avoid
imprisonment, but that will not stop her from desiring the drug. In the words of Bewley, ‗a
woman who cannot give up drugs despite her best intent does not have a free will. This is a
double tragedy, as she harms her foetus against her will, and her will is not free and
autonomous.‘68
Moreover, it is questionable whether the threat of imprisonment hanging over the
head of a pregnant woman will have the desired effects. It is more likely to make her worried
and lead her to drugs once more for consolation. Also, if it becomes known that pregnant
addicts are prosecuted and imprisoned, women are more likely to avoid seeing the doctor in
the first place. This means not only that they will give birth at home without the help of an
expert, but also that the development of the foetus during the nine months will not be
monitored.69 Problematically, it is these vulnerable foetuses that need the most attention.
Thus, if our main aim is to protect the foetus rather than punish the woman, criminalising her
cannot be the solution. Nevertheless, it should not be excluded as an option. It should be
used as a last resort where there is evidence that the mother was offered adequate care for her
condition, yet she refused to use it accordingly.
Criminalising pregnant addicts is not only theoretically difficult to justify, but also
creates practical considerations in its application. Roth argues that a study of women in
Florida including private and public hospitals found that alcohol and drug abuse are common
amongst women regardless of their race and socioeconomic status.70 Despite this, black
women are nearly ten times more likely to be reported than white women and nearly all
women who were reported were of low socioeconomic status.71 Therefore, women in
minorities and of low socioeconomic status are more likely to be targeted, convicted and
further harmed in prison, creating a vicious circle of drug problems and troubled families in
specific sectors of society. A child whose mother is in prison or has been released but is still
addicted to heroin is more likely to be raised more poorly than a child in a normal family
unit. Sentencing therefore is not only harming pregnant women, but their babies as well, the
very people who we were trying to protect in the first place. A study for pregnancy and
67
C R Daniels ‗Between Fathers and Foetuses: The Social Construction of Male Reproduction and the Politics
of Foetal Harm‘ in D Dickenson (ed) Ethical Issues in Maternal – Foetal Medicine (Cambridge University Press
Cambridge 2002) 241.
68
Bewley (n 60) 126.
69
Savage (n 8) 279.
70
R Roth (n 24) 126.
71
ibid.
52
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alcohol use showed that women who consumed three drinks a day but ate a balanced diet, had
a foetal alcohol syndrome of 4.5% while those who drank the same amount but were
malnourished had a foetal alcohol syndrome rate of 71%.72 Daniels therefore persuasively
argues that since malnutrition ties directly to income, ‗Foetal alcohol syndrome is a measure
not only of maternal alcoholism but also of economic class.‘73 Clearly, punishing the woman
rather than providing help for her, except in the most exceptional circumstances, cannot be in
her best interests, her baby‘s, or society‘s.
A second type of remedy could be a civil action whereby the child would be able to
claim compensation for injuries induced during the gestation period due to the mother‘s drug
taking habits. An action in tort will have the advantage of the court deciding whether it is
‗fair, just and reasonable‘74 to award damages. This will again depend on the efforts put by
the woman to stop taking drugs and whether they were genuine or not. On the other hand, an
action for damages is unlikely to be very effective since a drug addict rarely has money to
pay for a potential law suit. Additionally, this action will not have protected the foetus
although, if the mother pays, it is likely that it will make the child‘s life easier in terms of
potential medical treatment he is likely to need due to the injuries induced. Therefore, such
an option should be available to the child although it is appreciated that it will only be
effective in exceptional circumstances.
The final remedy would be to take the child away from the mother immediately after
birth. Even thought this cannot prevent the original harm from happening, it will avoid any
further harm. However, the baby should not be automatically taken away from the mother
simply because she was using drugs during pregnancy. This should only be done in cases
where the baby is still in danger because the parent is still using drugs. This is a frustratingly
inadequate response: it is recognised that there will be cases in which children will be left in
the hands of parents who might go back to their drug-taking habits. However, the alternative
would be to prevent a woman who has stopped using drugs for the sake of her child from
raising it. The possibility of forcing a woman to stop taking drugs will not be discussed in
detail since no one can force an addict off such a habit unless the addict herself wants to. If
she does not want to stop taking the drugs herself, she will return back to her old habits as
soon as she leaves the rehabilitation centre and the State will have wasted money that could
have been used on a more willing woman instead.
3
The Middle Solution
It seems therefore, that the only adequate way to protect a foetus is through the education and
awareness-raising of its environment. If society can punish a woman because it has an
interest to protect the foetus, then some self-criticism is also necessary due to its failure to act
proactively to protect this interest. It needs to provide proper nutrition, counselling,
substance abuse and mental health services and more generally adequate health care. It is of
course much easier to blame someone else altogether rather than take partial responsibility
for a problematic situation. Sending a woman to prison is easier to implement than
proactively providing the necessary help for her. However, in the long run, such tactics will
work for the best interest of society. If incentives are given to addicts to come forward rather
than having to spend resources to track them down, prosecute and put them to prison, society
will not only be gaining the invaluable intangible benefits of prevention of a death, but
economic advantages as well. The Institute of Medicine in the USA concluded that for each
72
Daniels (n 64) 117.
ibid.
74
Caparo Industries Plc v Dickman [1990] 2 AC (HL) 605.
73
53
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dollar spent on prenatal care, $3.38 was being saved.75 Furthermore, arguments from both
sides make it appear that this is an either/or debate: either the mother‘s autonomy is protected
or the foetus‘s right to life. Unlike the caesarean section debate, this is not the case here.
Encouraging women to come forward on their own is the most appropriate middle solution.
Evidence suggests that even when prenatal care is available, many high risk pregnant
women avoid it.76 This derives partly from the fact that a number of drug addicts feel
rejected by society and are therefore less likely to trust the authorities. Another part of the
problem is that many women do not realise the extent to which they are hurting the foetus
and that something can be done to stop this. It is thus important that awareness-raising
campaigns take place and that the State carries out the appropriate marketing to attract
estranged women. Daniels77 criticises the US government for presenting discriminatory
advertisements because public health care warnings are often produced in Spanish, typically
show African-American and Latina women and are directed the at inner-city neighbourhoods.
However, arguably this is not discriminatory, just an effective way of targeting the most
appropriate audience. It is submitted that these minorities, especially the women, are less
likely to be aware of the advantages of appropriate healthcare due to language barriers and
because they do not have easy access to such information. Inner-city neighbourhoods are
where the majority of such high risk pregnant women live. A poster‘s aim is to make an
immediate impression on the person whom it tries to affect; that includes the person being
able to identify with the picture and understanding the words. At a time when conservative
estimations show 41,000 ‗crack babies‘ a year78 being born in the US alone, such criticisms
are deflecting our attention from the main issue of saving lives.
However, one criticism can be successfully be made about such awareness raising
campaigns: they exclusively target women. This discussion has so far only dealt with the
policing of pregnant women, but one should not forget that a pregnant woman does not live
in isolation from the rest of the world. One New Jersey public health advertisement showed a
pregnant woman holding a drink and warned that ‗A pregnant woman never drinks alone‘.
As Daniels points out however, ‗a pregnant woman also never drinks in isolation from the
effects of her home, her physical, social and political environment.‘79 Society cannot expect
pregnant women to quit smoking when it does not warn future fathers that their child could
be facing health problems due to the fact that their wife is a passive smoker during her
pregnancy. Similarly, it is unfair and discriminatory to talk of foetuses being ‗exposed to
illicit drugs in the womb‘80 when no one attributes fault to the male partner who could be
using drugs for years. This attitude is partly due to the fact that for many years it was
believed that if a man damaged his sperm by taking drugs he simply became infertile. This is
no longer the case.81 As our understanding of foetal development progresses so should our
responses towards it. If society is willing to police pregnant women on the grounds of public
policy, it should at least make men aware that they have roles and responsibilities before the
baby is born as well.82
75
n 33, 131.
ibid 141.
77
Daniels (n 64).
78
Daniels (n 64) 115.
79
ibid 117.
80
ibid 115.
81
ibid 141.
82
H Draper ‗Women, Forced Caesareans and Antenatal Responsibilities‘ (1996) 22 Journal of Medical Ethics
327.
76
54
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D
CONCLUSION
Ethical considerations are very important in the policing of pregnant women debate both
during and at the very end of the gestation period. However, practical considerations are
what make the difference. Pregnant women are treated differently not because they are less
human than everyone else, but because they choose to carry out the greatest gift their human
nature has given them. High values such as autonomy, right to life, self-determination,
privacy, come down to one thing: saving lives. A life however is not only destroyed when
one stops breathing; it is also destroyed when she feels she has sacrificed her religion for the
sake of her child or when she has sacrificed her child for the sake of drugs. Thus, a woman
should be able to decide whether to go through with the caesarean section or not as long as
she makes it clear that she has thought of the consequences of her decision for her and her
foetus. Only if this test is not satisfied should society be permitted to intervene. Similarly, if
the woman is an addict, she should be given the opportunity to ask for help and when she
does, it should be made available; only then should more coercive measures be used. Society
has an obligation to help its members; but it is often forgotten that pregnant women are as
much members of our society as future babies. The only feasible way to strike a balance
between society‘s two conflicting obligations is to give the woman the primary responsibility
and only act in extreme situations. This of course will not always be 100% satisfactory, but
no blanket rule either in favour of the mother or the child can achieve a better result.
55
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IN THE NAME OF THE MOST HOLY TRINITY: RELIGIOUS ANACHRONISMS
AND THE NEED FOR A SECULAR CONSTITUTION
Brian O‘Reilly *
ABSTRACT
This article critically analyses the religious references of the Irish Constitution, with
particular focus on the effect these references have in relation to equality. It briefly examines
the background to their inclusion in the text and, while conceding that this inclusion was both
understandable and inevitable in 1937, argues that a secular Constitution would be more
appropriate in the increasingly diverse Ireland of today. The article looks at various leading
opinions and commentaries on the topic, as well as adding the author‟s own views, proposing
that amendment or deletion of these religious references would be beneficial in the interest of
equality.
A
INTRODUCTION
They always say that time changes things, but you actually have to change them
yourself.
–Andy Warhol, The Philosophy of Andy Warhol1
We live in an increasingly secular society. In the 25 years from 1981 to 2006, the entire
population of the Republic of Ireland has increased by 23%, whereas the number of people
within that population professing ―no religion‖ has increased by an astonishing 371%.2
While still leaving the religious in the majority, this growing trend cannot be ignored. As
well as this change in demographic, the majority, those professing a Catholic faith, have
become much less publicly active in recent years. According to a ‗Red C poll conducted
between October 19th and 21st [2009], for the Catholic Iona Institute ... weekly church
attendance is now 46 per cent.‘3 As low as this figure is, it is in fact, unusually high when
compared with previous years and is likely to be related to the recent economic downturn. 4
There is a growing demand for more secular schooling in the State and this too illustrates the
change in public opinion, with even the Catholic Archbishop of Dublin, Diarmuid Martin,
saying that ‗[t]he current almost monopoly is a historical hangover that doesn‘t reflect the
realities of the times.‘5 However, does our legislation, and in particular our Constitution,
reflect these modern views? And does it afford due equality to those who choose to express
them?
*Brian O‘ Reilly is a First Year BCL (Law and German) student in University College Cork.
1
A Warhol The Philosophy of Andy Warhol (From A to B & Back Again) (Harcourt Brace Jovanovich New
York 1975).
2
Calculated from the 2006 census figures, Census 2006 – Volume 13 – Religion; Table 1
<http://www.cso.ie/census/census2006_volume_13.htm> (10 November 2009).
3
P McGarry ‗Mass Attendance in Ireland is Up‘ The Irish Times (Dublin Ireland 2 November 2009)
<http://www.irishtimes.com/newspaper/ireland/2009/1102/1224257901174.html> (10 November 2009). Based
on telephone interviews with a random sample of 1,000 adults aged 18 and over.
4
ibid.
5
G Carbery ‗Catholic Control of Schooling not Tenable, says Archbishop‘ The Irish Times (Dublin Ireland 17
June 2009) <http://www.irishtimes.com/newspaper/ireland/2009/0617/1224248982529.html> (29 November
2009).
[2010] COLR
With the recent amendments to the blasphemy laws, and the Murphy Report just
published, the place of religion in our society and in our law is on the lips and minds of the
people more than ever before. This article will firstly look into the reasons why our
Constitution contains so many allusions to religion. It will then analyse the various aspects in
which religion permeates the text of Bunreacht na hÉireann, with specific emphasis on the
issue of equality. Furthermore, this article will propose possible amendments, with reference
to national and international criticisms of the use of religion in legal texts, and set out the
reasons why, in this author‘s view, it would be beneficial for Ireland to have an entirely
secular Constitution. Judicial interpretations of the Constitution continue to reflect the
Catholic ethos of its text. Is amendment by referendum the next step? Is it time we changed
things ourselves?
B
WRITTEN FOR THEISTS: A BRIEF HISTORY
In order to properly understand the Ireland in which our Constitution was written, it is helpful
to look at the religious composition of the population at the time. According to the census of
1936, there was a total population of 2,968,420 people in Saorstát Éireann in the time running
up to the enactment of the Constitution of Ireland. Of these, 2,773,920 were Catholics. The
remaining 194,500 was made up of Protestant Episcopalians, Presbyterians, Methodists,
Jews, Baptists, and 7,290 ―Others‖. It is worth noting then, when considering the place of
―God‖ in the Constitution, that, at around the time of its enactment, at the very least, 99.75%
of the population were Judeo-Christian Monotheists.
This religious demographic was specifically recognised in the original text of the
Constitution, in article 44.1 which originally read as follows:
1. The State acknowledges that the homage of public worship is due to Almighty
God. It shall hold His Name in reverence, and shall respect and honour religion.
2. The State recognises the special position of the Holy Catholic Apostolic and
Roman Church as the guardian of the Faith professed by the great majority of the
citizens.
3. The State also recognises the Church of Ireland,6 the Presbyterian Church in
Ireland, the Methodist Church in Ireland, the Religious Society of Friends in
Ireland, as well as the Jewish Congregations and the other religious
denominations existing in Ireland at the date of the coming into operation of this
Constitution.7
The only denomination present in the census of 1936 which is not specifically named in
the original text of article 44.1 is that of the Baptists. This is probably due to their small
numbers, of only 715, in the country at the time. They are, however, obviously represented
under the term ‗other religious denominations.‘ The President at the time, Éamonn de
Valera, made specific reference to the importance of the religious demographic, concerning
the drafting of the Constitution. In June 1937, he stated:
There are 93 per cent of the people in this part of Ireland and 75 per cent of the people of
Ireland as a whole who belong to the Catholic Church, who believe in its teachings, and
whose whole philosophy of life is the philosophy that comes from its teachings.
6
An autonomous province of the Episcopal/Anglican Communion.
The Fifth Amendment of the Constitution Act 1972 deleted Article 44.1.2° and Article 44.1.3°. Article 44.1.1°
was correspondingly renumbered as Article 44.1.
7
57
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Consequently it is very important that in our Constitution that fact should be recognised.
... [N]evertheless the State recognises the liberty of every citizen to practise his religion
and to adore the Almighty in public and private.8
The question at the time then was not whether or not the Judeo-Christian God should
have a place in the Constitution, but, rather, precisely how prominent His place should be. In
May 1937, during the second stage of the Dáil debates on the Constitution, Deputy
Fitzgerald-Kenney argued that, as it suggested that the people had the authority to elect their
leaders, and ‗that all legislative, executive and judicial powers are derived from the people;‘9
the first statement of article 6.110 was ‗heretical,‘11 despite the fact that it contained the phrase
‗under God.‘ Demonstrating the level of certainty and conviction with which the
Constitutional references to ‗God‘ were made, Éamonn de Valera replied:
I want everybody to realise what this Constitution states about authority. In the Preamble,
and in the [a]rticle that refers to that, there is a clear, unequivocal statement that authority
comes from God. That is fundamental. It does not matter what view a group of Catholic
theologians may take as to how it comes to the immediate rulers. What we have here is
clear at any rate—that authority is from God. That is fundamental Catholic doctrine, and
it is here. It is true doctrine.12
It is clear from the language used in the Dáil Debates that the recognition of non-religious
citizens was not of concern to the drafters of the Constitution. It was simply not an issue at
the time, since the demographic was overwhelmingly religious. It is not difficult then to
answer the question of why references to ‗Almighty God‘ were originally included in the
Constitution. It is much more apt to ask; why are they still included? It falls to us, in this
increasingly diverse society, to make the recognition of non-religious citizens our own
concern, and to hope that legislation does not lag too far behind in its provision of equality
for all.
C
THE CONSTITUTION REVIEW GROUP
One invaluable source of opinion on the need for Constitutional reform, is the Report of the
Constitution Review Group.13 The Constitution Review Group (CRG) was established by the
government in 1995:
to review the Constitution, and in the light of this review, to establish those areas where
constitutional change may be desirable or necessary, with a view to assisting the all-Party
Committee on the Constitution, to be established by the Oireachtas, in its work.14
The review group was composed of 15 members,15 selected from varying backgrounds;
administration, economics, education, law, political science and sociology, with lawyers
8
Dáil Debates 4 June 1937 col 1890-1891.
Dáil Debates 13 May 1937 col 340-341.
10
Art 6.1 states that: ‗All powers of government, legislative, executive and judicial, derive, under God, from the
people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of
national policy, according to the requirements of the common good.‘
11
Dáil Debates 13 May 1937 col 340.
12
Dáil Debates 13 May 1937 col 416-417.
13
Constitution Review Group Report of the Constitution Review Group (Dublin Stationary Office 1996).
14
Dáil Debates 3 May 1995 col 481.
9
58
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being predominant. Their report, which was published in 1996, is viewed as one of the most
comprehensive and authoritative commentaries on the Constitution to date. It is a document
often cited by judges and legal commentators alike, specifically in reference to unclear or
undesirable provisions of the Constitution.
The Report of the CRG recommends that the religious references in the Constitution—
the Preamble, blasphemy, public worship, oaths, and minor references such as ‗under God‘ in
article 6.1—be heavily amended. In most cases the Report recommends deletion of these
references, and this has been endorsed by subsequent All-Party Committees. These
recommendations will be looked into in more depth in the relevant sections of this article.
D
THE PREAMBLE
The Preamble of the Constitution of Ireland is, perhaps, the most striking display of religious
bias which remains in the document today. When one is new to the text of the Bunreacht, the
explicit religiosity of the Preamble is likely to come as a surprise. The Preamble states as
follows:
In the Name of the Most Holy Trinity, from Whom is all authority and to
Whom, as our final end, all actions both of men and State must be referred,
We, the people of Éire,
Humbly acknowledging all our obligations to our Devine Lord, Jesus Christ, ...
Do hereby adopt, enact, and give to ourselves this Constitution.
As noted above, this form of wording is entirely understandable if read in the context of
the times in which it was written. However, problems arise when one is to read this in the
context of today‘s Ireland. A fairly blunt, but important, point to make is that, currently, a
substantial proportion of the ‗people of Éire‘ do not even believe in the ‗Most Holy Trinity,‘
nor would they acknowledge an ―obligation‖ to the ‗Devine Lord, Jesus Christ.‘ In 1972, Mr
Justice Walsh said that ‗[t]he preamble to the Constitution acknowledges that we are a
Christian people.‘16 And this it undoubtedly does. But are we? Maybe we were in 1972.
We certainly were in 1937. However, at the time of writing, almost an entire decade into the
twenty-first century, it seems clear that the people of Ireland do not fall neatly into this single
category.
Some would argue that the Preamble is separate from the Constitution, and as such it is
nothing more than a historical prelude making reference to the People as they were when it
was enacted, holding no legal weighting. This position does seem desirable, however as
noted by the CRG; ‗the Preamble has been cited in legal cases and has been taken into
account in judicial decisions,‘17 which brings us to the conclusion that it does in fact have
legal effect. The issue that follows from this is how the Preamble is interpreted in modern
courts. As Mrs Justice Denham has pointed out, ‗we must bear in mind that the Constitution
15
Namely: Dr T K Whitaker, Chairman, David Byrne SC, Dr Alpha Connelly, Mary Finlay SC, Dermot
Gleeson SC, James Hamilton BL, Mahon Hayes, Gerard Hogan FTCD, BL, Professor Áine Hyland, Dr Finola
Kennedy, Professor Michael Laver FTCD, Dr Kathleen Lynch, Diarmaid McGuinness BL, Dr Dermot Nally,
and Dr Blathna Ruane BL.
16
Quinn‟s Supermarket Ltd v Attorney General [1972] IR 1, 23.
17
Report of the Constitution Review Group (n 13) 4, citing McGee v Attorney General [1974] IR 284, The State
(Healy) v Donoghue [1976] IR 325, King v Attorney General [1981] IR 233, Norris v Attorney General [1984]
IR 36 and Attorney General v X [1992] 1 IR 1.
59
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is a living document. It falls to be construed in our times.‘18 However, it would seem that the
courts retain the more old fashioned, literal interpretation of the Preamble. One case which
epitomises this is Norris v Attorney General.19
In the Norris case, the plaintiff argued that the laws banning male homosexual acts20
were unconstitutional. It was submitted on his behalf that the relevant sections were
inconsistent with article 40.1‘s provision that ‗[a]ll citizens shall, as human persons, be held
equal before the law.‘ It was also argued that they were an infringement of the personal
rights of the citizen guaranteed by article 40.3. The case was dismissed by the High Court
and was appealed. The Supreme Court held, inter alia, in disallowing his appeal, that having
regard to the Christian nature of the State there was no inconsistency between any of the
terms of the impugned sections and the provisions of the Constitution.21 In his judgment,
O‘Higgins CJ states:
From the earliest days, organised religion regarded homosexual conduct, such as
sodomy and associated acts, with a deep revulsion as being contrary to the order of
nature, a perversion of the biological functions of the sexual organs and an affront both
to society and to God. ... [I]t remains the teaching of all Christian Churches that
homosexual acts are wrong. ... The preamble to the Constitution proudly asserts the
existence of God in the Most Holy Trinity ... It cannot be doubted that the people, so
asserting and acknowledging their obligations to our Divine Lord Jesus Christ, were
proclaiming a deep religious conviction and faith and an intention to adopt a Constitution
consistent with that conviction and faith and with Christian beliefs.22
Here we can see that the Preamble has been used to read a distinctly Christian ethos
into the Constitution and to validate the learned judge‘s personal homophobic view that ‗the
deliberate practice of homosexuality is morally wrong.‘23 Finlay P and Griffin J both agreed
with the Chief Justice‘s judgment, and added nothing further. It can be argued that a clear
problem arises when legislation can be used to back up the personal and subjective opinions
of judges. This problem was eloquently summed up by Thomas Jefferson in 1779, when he
wrote:
[T]o suffer the civil magistrate to intrude his powers into the field of opinion and to
restrain the profession or propagation of principles on supposition of their ill tendency is
a dangerous fallacy which at once destroys all religious liberty, because he being of
course judge of that tendency will make his opinions the rule of judgment and approve or
condemn the sentiments of others only as they shall square with or differ from his own.24
The above was later made law in the State of Virginia, and has since become a part of
the Virginia Constitution, ensuring that the religious beliefs of the judiciary can never
interfere with the course of justice, and that judgments shall not be biased due to a judge‘s
personal faith. However there has yet to be such a provision in Ireland despite the huge
change, and growth of diversity, in the ethos of our society.
18
The Hon Mrs Justice Susan Denham Leadership in Human Rights Law, Past and Future (Irish Human Rights
Commission and Law Society of Ireland Public Conference 16 October 2004).
19
Norris v Attorney General [1984] IR 36 [Hereinafter Norris].
20
Offences against the Person Act, 1861, ss. 61, 62, and Criminal Law Amendment Act, 1885, s. 11.
21
Henchy and McCarthy JJ. dissenting.
22
Norris v Attorney General (n 19) 61-64 (O‘Higgins CJ in argument).
23
ibid 65.
24
Virginia Act for Establishing Religious Freedom, 1787 (USA).
60
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Professor Gerard F Whyte, in considering the place of religious references in the
Preamble, notes that ‗there may not be any neutral territory for the State to occupy between
those who advocate the use of religious language in the Constitution and those who oppose
such use ...‘25 This view is echoed by Joseph HH Weiler, professor of law at New York
University, who has said that ‗[t]he preamble has a binary choice: yes to God, no to God.
Why, I ask, is excluding a reference to God any more neutral than including God?‘26
However, it is the opinion of this writer that the exclusion of such references is the neutral
ground. What the above commentators do not acknowledge is a third option. The
Constitution currently affirms a positive belief in God, but it could also expressly deny such a
belief. This would be the other extreme of the spectrum and would support an atheistic rather
than a religious ethos. Thus there are really three options; religious, atheistic, and secular.
The secular option is to neither affirm nor deny a belief in God, and as such is the middle
ground between the other two options.
The CRG notes that ‗the 1972 Irish Theological Association working party
unanimously agreed that ‗no one should be required, as a condition of citizenship, to endorse
a basic belief or tradition which he does not share‘ and was not satisfied that a religious
strand was necessary or desirable in a Preamble,‘27 and considers that the Preamble as it
stands is ‗inappropriate.‘28 Most of the members felt that ‗the language, reflecting the ethos
of the 1930s, is overly Roman Catholic ... in tone ... and would be objectionable to many in
Ireland today.‘29 The Group recommends ‗the replacement of the present Preamble by the
basic formula of enactment of the Constitution by the people of Ireland.‘30 This writer agrees
with their recommendation.
E
THE OFFENCE OF BLASPHEMY IN IRELAND: THE CONSTITUTION,
LEGISLATION AND THE COURTS
The legitimate powers of government extend to such acts only as are injurious to others.
But it does me no injury for my neighbour to say there are twenty gods, or no god. It
neither picks my pocket nor breaks my leg.
–Thomas Jefferson, Notes on the State of Virginia 31
Article 40.6.1º guarantees liberty for the exercise of ‗[t]he right of the citizens to express
freely their convictions and opinions.‘ However it is stated in the very same subsection that
‗[t]he publication or utterance of blasphemous, seditious, or indecent matter is an offence
which shall be punishable in accordance with law.‘ It would seem, then, that the Constitution
giveth, and the Constitution taketh away. Up until 1937, blasphemy was a common law
offence. The Constitution then explicitly made it an offence punishable by law. This offence
was not provided for by legislation until the Defamation Act, 1961, which stated in section
13(1) that ‗[e]very person who composes, prints or publishes any blasphemous or obscene
25
G F Whyte ‗The Role of Religion in the Constitutional Order‘ in Murphy and Twomey (eds) Ireland‟s
Evolving Constitution 1937-1997 (Oxford Hart Publishing 1998) 60.
26
Interview with Sara Ivry Nextbook 23 June 2004, quoted in Patrick Hannon „In God‘s Name, What Next?
Religion, the Constitution and the New Ireland‘ in Carolan and Doyle (eds) The Irish Constitution: Governance
and Values (Dublin Thomson Round Hall 2008) 475.
27
Report of the Constitution Review Group (n 13) 5.
28
ibid.
29
ibid 4.
30
ibid 6.
31
T Jefferson ‗Notes on the State of Virginia‟ (Lilly and Wait Boston 1832).
61
[2010] COLR
liable shall, on conviction thereof on indictment, be liable ...‘ The Act, however, did not
define the term ‗blasphemy,‘ and this lead to significant ambiguity in the law. This
ambiguity did not go unnoticed in the Dáil Debates on the matter. One particular exchange
between Mr Charles J Haughey and Mr Patrick McGilligan has been reproduced below,
which can at least be viewed as humorous, if rather frustrating at the same time.
Mr. McGilligan: There is no definition anywhere of blasphemy in this Bill. Is
there in any of the old Acts?
Mr. Haughey: Not so far as I am aware.
Mr. McGilligan: Where are we then? The offences take in various things,
including blasphemous libel. What does it mean?
Mr. Haughey: ―Blasphemy‖ is a common law term. It is defined by common law.
Mr. McGilligan: Has it anything to do with the established Church and does
nonconformity come into it?
Mr. Haughey: No.
Mr. McGilligan: Is there a definition of it?
Mr. Haughey: Blasphemy is a common law offence. There is no statutory
definition of it.
...
Mr. McGilligan: In any event, I understood the old common law definition was
that blasphemy was subversion of the established religion. Surely, we are getting
away from all that?
Mr. Haughey: It has nothing to do with the established religion.
...
Mr. McGilligan: What has it to do with?
Mr. Haughey: The common law concept of blasphemy.
Mr. McGilligan: Which was anything against the established religion.
Mr. Haughey: Not necessarily.
Mr. McGilligan: It was.
...
Mr. Haughey: Everybody knows what blasphemy is.
Mr. McGilligan: I should like to see that put into the definition section —
blasphemy is what everybody knows it to be.32
Due to this apparent reluctance to define ‗blasphemy,‘ the offence, in practice, proved
unenforceable. In 1999, in the case of Corway v Independent Newspapers (Ireland) Ltd.33 the
Supreme Court held that:
[T]he Defamation Act, 1961, assume[s] that the crime exists without defining it. It would
appear that the legislature has not adverted to the problem of adapting the common law
crime of blasphemy to the circumstances of a modern State which embraces citizens of
many different religions and which guarantees freedom of conscience and a free
profession and practice of religion. ... The task of defining the crime is one for the
legislature, not for the courts. In the absence of legislation and in the present uncertain
state of the law the [c]ourt could not see its way to authorising the institution of a
criminal prosecution for blasphemy.34
32
Dáil Debates 26 July 1961 col 1928-1929.
Corway v Independent Newspapers (Ireland) Ltd [1999] 4 IR 484.
34
ibid 501-502 per Barrington J [Hamilton CJ, Murphy, Lynch and Barron JJ agreeing].
33
62
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Since the Constitution provides that the publication or utterance of blasphemous
material is to be an offence ‗punishable in accordance with law,‘ the Supreme Court‘s ruling
that the offence was unenforceable left two options. Either the offence could be defined in a
new Act, or a referendum could be held to delete the constitutional reference to blasphemy.
Dermot Ahern, Minister for Justice, Equality and Law Reform, said, ‗[m]y personal position
is that church and state should be separate, but I do not have the luxury of ignoring our
constitution.‘35 Faced with choosing between a pricey referendum and reform which would
help judges address the 1999 Supreme Court ruling, he said, ‗I chose reform.‘36 It was
widely argued that the blasphemy referendum could conveniently have been held on the same
day as the second Treaty of Lisbon referendum, but this ultimately did not happen. Thus, the
offence of blasphemy in Ireland was finally defined in the Defamation Act, 2009, 72 years
after the Constitution had originally required it. Section 36(2) of the Act provides that:
For the purposes of this section, a person publishes or utters blasphemous matter if—
(a) he or she publishes or utters matter that is grossly abusive or insulting in relation to
matters held sacred by any religion, thereby causing outrage among a substantial number
of the adherents of that religion, and
(b) he or she intends, by the publication or utterance of the matter concerned, to cause
such outrage.
However, the Act also provides for new defences, such as the ‗defence of truth‘ in
section 13 and the ‗defence of honest opinion,‘ in section 20. This limits the offence of
blasphemy to cases where the sole intent was to cause ‗outrage.‘ In the opinion of this writer,
the protection of religious beliefs and sensibilities is best left to the provisions of the
Prohibition of Incitement to Hatred Act, 1989, which do not afford religious opinions a
special position above the opinions of the non-religious, or indeed opinions on non-religious
subject matter, but treat all opinions equally. A similar sentiment was expressed by Senator
David Norris during the Seanad Debates on the Defamation Act, 2009, where he stated:
On the question of blasphemy, my view is that God, assuming he or she exists, is quite
able to sustain slings and arrows of mere mortals in terms of his or her reputation. What
people are usually doing when talking about blasphemy is protecting their own feelings.
It is understandable that people have strong feelings, but this is covered by incitement to
hatred. A number of columnists in one of the main daily newspapers regularly incite
hatred against particular religious groups, particularly Muslims, but this can be covered
37
by incitement to hatred.
It is clear that the new blasphemy laws were brought in somewhat reluctantly, simply to
satisfy the text of the Constitution. Notwithstanding this reluctance, the legislation has
attracted international attention. Pakistan, on behalf of the Organisation of Islamic
Conference, submitted a proposal to the UN Ad Hoc Committee on the Elaboration of
Complementary Standards urging all UN member states to legislate against blasphemy.
Their proposal lifted the definition of blasphemy, verbatim, from the 2009 Act. Sweden ‗on
behalf of the European Union, The United States of America, Norway, Denmark, Poland and
France expressed their opposition to defamation of religion being regarded as a human rights
35
K Adam ‗Atheists Challenge Ireland‘s New Blasphemy Law with Online Postings‘ Washington Post Foreign
Service (3 January 2010)
<http://www.washingtonpost.com/wpdyn/content/article/2010/01/02/AR2010010201846.html> (24 January
2010).
36
ibid.
37
Seanad Debates 11th March 2008 col 1773.
63
[2010] COLR
legal concept, explaining that human rights were relevant to individuals but not religions.‘38
As one commentator has noted, ‗[i]t is ironic that the text to which the European Union is
opposed is extracted directly from the law of a Member State.‘39 The CRG are of the opinion
that ‗the retention of the present constitutional offence of blasphemy is not appropriate. ...
The contents of the offence are ... potentially at variance with guarantees of free speech and
freedom of conscience in a pluralistic society.‘40 They also agree with the Law Reform
Commission‘s views which state that they are ‗of the view that there is no place for the
offence of blasphemous libel in a society which respects freedom of speech.‘41
The Joint Committee on the Constitution, a select committee consisting of members of
both Houses of the Oireachtas, agreed with the recommendations of the CRG. In their first
report, in July 2008, they stated that ‗it is the Committee‘s view that the specific reference to
blasphemy should be deleted from the Constitution. ... Furthermore, the Committee is of the
view that in a modern Constitution, blasphemy is not a phenomenon against which there
should be an express constitutional prohibition.‘42 It would seem too that the People would
agree with this view. In a recent Irish Times poll, when asked ‗[w]ould you support a
referendum to remove the provision in the Constitution that makes the publication of
blasphemous statements a crime?‘ 64% of the respondents answered ―Yes.‖43
To summarise, the 1991 Law Reform Commission, the 1996 Constitution Review
Group and the 2008 All-Party Committee on the Constitution have all addressed the reference
to blasphemy in the Constitution. All three have recommended its deletion, and it would
appear that a majority of the People agree with this recommendation. This writer certainly
does.
F
THE HOMAGE OF PUBLIC WORSHIP BEING DUE TO ALMIGHTY GOD
Though the Fifth Amendment of the Constitution Act, 1972 has deleted the references to
specific religious denominations, article 44.1 still reads:
The State acknowledges that the homage of public worship is due to Almighty God. It
shall hold His Name in reverence, and shall respect and honour religion.
This provision has not received much judicial analysis, though Mr Justice Walsh has said that
this section ‗acknowledges that the homage of public worship is due to Almighty God but it
does so in terms which do not confine the benefit of that acknowledgment to members of the
Christian faith.‘44 However, the CRG notes that the reference to ‗Almighty God‘ does appear
to ‗refer to God in terms which confine the reference to adherents of monotheistic faiths.‘45
So what does article 44.1 mean? The CRG suggests that one possible meaning of the first
38
UN Human Rights Council ‗Draft Report of the Ad Hoc Committee on the elaboration of complementary
standards
on
its
second
session‟
(30
October
2009)
A/HRC/13/55
<http://www.article19.org/pdfs/publications/racism-racial-discrimination-xenophobia-and-all-forms-ofdiscrimination.pdfl> (24 January 2010).
39
National Secular Society ‗Irish Blasphemy Law being Used as a Lever by Islamic Countries‘ (8 January 2010)
< http://www.secularism.org.uk/irish-blasphemy-law-being-used-a.htmll> (24 January 2010).
40
Report of the Constitution Review Group (n 13) 297.
41
ibid 296.
42
Joint Committee on the Constitution First Report of the Joint Committee on the Constitution: Article 40.6.1.i Freedom of Expression (Stationery Office Dublin 2008) para 5.22 [emphasis in original].
43
<http://www.irishtimes.com/polls/index.cfm?fuseaction=yesnopoll&pn=6&lastID=224401&subsiteid=356&p
ollid=9174> (24 January 2010).
44
Quinn‟s Supermarket Ltd v Attorney General (n 16) Walsh J.
45
Report of the Constitution Review Group (n 13) 370.
64
[2010] COLR
sentence of the section is that ‗the State is under an obligation not only to permit but even to
participate in divine worship in public.‘46 Professor James Casey quantifies this, observing:
[T]here are many public manifestations of religion − such as ceremonies at defence
establishments, the daily broadcasting of the Angelus on radio and television − and these
many people find objectionable ... It seems probable that any action [to challenge such
practices] would fail, with the courts invoking [a]rticle 44.1 to uphold the impugned
47
provisions.
The CRG considers that ‗[i]n effect, this section imposes an obligation on the State to
refrain from engaging in what might loosely be termed ‗atheistic propaganda‘ and prevents
the State from adopting a policy which is actively hostile to religion.‘48 However, this writer
would go further. The State is explicitly required to hold the name of God in ‗reverence,‘ and
must ‗honour religion.‘ This does not merely prevent the State from being hostile towards
religion; it expressly prevents the State from being unbiased, impartial, non-discriminatory,
and neutral. The CRG states that this overall interpretation of article 44.1 ‗would be
objectionable to many,‘49 and that the second sentence ‗reflects views which are not now
universally held.‘50 A majority of the CRG is in favour of the deletion of article 44.1, or if
that is not deemed desirable, the rewording of the section to simply state: ‗The State
guarantees to respect religion.‘51 This proposed amendment would allow the State to conduct
itself in an unbiased and objective manner, without holding one belief system above another.
Dr. Oran Doyle addresses the issue of the currently present bias by contrasting article
44.1 with the considerably more neutral article 44.2.
Article 44 deals with religion, but its two provisions are markedly different from each
other. Article 44.2 contains a set of constitutional guarantees that would not appear out of
place in the constitution of any liberal democracy. The [a]rticle 44.2 guarantees can
loosely be divided into two types: freedoms of religion and freedoms from religion. ...
There is a rough balance between these two types of guarantee. On the one hand, people
should be free to be religious. On the other hand, the state should not get too involved in
religion. This suggests a neutrality between religions and non-religions.52
However, he states, article 44.1 ‗suggests a State that is decidedly non-neutral on the
question of religion.‘53 He argues that ‗the courts, in their interpretation of article 44, have
reflected the pro-religion ethos of article 44.1 and the Preamble, systematically privileging
the freedoms of religion over the freedoms from religion.‘54
It would seem, then, that the provisions of article 44.1 have marred the otherwise
balanced provisions to be found in article 44.2. Dr. Doyle notes that ‗[i]f article 44.2 existed
on its own, the balance therein between freedoms of religion and freedoms from religion
would, I suggest, require state neutrality as between religions and pointedly non-religious
46
ibid.
J Casey Constitutional Law in Ireland 2nd ed (Sweet & Maxwell London 1992) 557 quoted in Report of the
Constitution Review Group (n 13).
48
Report of the Constitution Review Group (n 13) 371.
49
ibid 377.
50
ibid 378.
51
ibid.
52
O Doyle ‗Article 44: Privileging the Rights of the Religious‘ in Carolan and Doyle (eds) The Irish
Constitution: Governance and Values (Thomson Round Hall Dublin 2008) 478.
53
ibid 479.
54
ibid.
47
65
[2010] COLR
world views.‘55 This neutrality can only be achieved through the deletion of article 44.1,
since currently, as Doyle concludes, the courts ‗are probably constitutionally required to
privilege the rights of the religious.‘56
G
RELIGIOUS OATHS OF THE PRESIDENT, THE JUDGES AND THE
COUNCIL OF STATE
In Ireland, the ordinary manner for swearing in a juror begins with the words ‗I swear by
Almighty God that ...‘57 However, in the case of a non-religious juror, it is provided that a
secular affirmation may be taken instead of an oath.58 In accordance with the Oaths Act,
1888, this affirmation begins ‗I, AB, do solemnly, sincerely, and truly declare and affirm ...‘59
This is an example of a perfectly reasonable legislative provision which strives to ensure
equality. Since the vast majority of jurors in this jurisdiction are likely to be Catholics, the
default oath is a Christian one, and alternatives are provided for jurors of other religions,60
and of no religion. It is also interesting to note the age of the Oaths Act, which predates out
Constitution, as this would have been quite a progressive provision in 1888, since the
population of non-religious people would have been far less substantial than it is today. It is
with this in mind that we must look the oaths, the declarations, of our Constitution.
The Constitution provides, in article 12.8, that the President of Ireland shall only enter
into office by ―taking and subscribing publicly‖ to a declaration which begins; ‗[i]n the
presence of Almighty God … ‘ and ends: ‗[m]ay God direct and sustain me.‘ The declaration
prescribed for judges, in article 34.5.1º, begins and ends with the same aforementioned
phrases, and is to be ‗made and subscribed … in open court.‘ Furthermore, article 34.5.4º
states plainly that ‗[a]ny judge who declines or neglects to make such declaration as aforesaid
shall be deemed to have vacated his office.‘ Finally, article 31.4 requires every member of
the Council of State (the body established to ‗aid and council the President‘) to ‗take and
subscribe a declaration‘ which begins in the same manner as the President‘s and the judges‘
declarations, but does not contain their religious suffix. One wonders why the Council of
State is not in need of God‘s direction and sustenance.
What, then, do these declarations imply in real terms? Let us take, for example, the
declaration to be made by a judge. Every judge is required to declare what amounts to a
belief in ‗Almighty God‘ and a wish to be directed by Him. This must be done in open court
and in the presence of the Chief Justice, or in the case of the Chief Justice; in the presence of
the President. This declaration is not optional, and a failure or refusal to make it deems the
judge to have ‗vacated his office.‘ The implication of this is severe. Nobody who does not
believe in an ‗Almighty God‘ can conscionably become a judge in Ireland, as it would require
making a declaration which they did not fully believe in. To do so would, in this writer‘s
view, be morally akin to perjury. This could effectively ban over 250,000 Irish citizens from
being eligible for the position of judge.61
This exclusion is clearly not in line with article 40.1‘s provision that all citizens are to
be ‗held equal before the law,‘ and this point has not gone unnoticed. As far back as August
55
ibid 488.
ibid, [emphasis added].
57
Juries Act 1976, s. 18(1).
58
Juries Act 1976, s. 18(2).
59
Oaths Act 1888, s. 2.
60
Juries Act 1976, s. 18(3).
61
Census 2006 – Vol 13 – Religion; Table 1 (n 2).
56
66
[2010] COLR
1993, the UN Human Rights Committee, in their report on Ireland, expressed their concern in
relation to this Constitutional inequality:
With respect to freedom of expression ... the Committee notes with concern that ... [t]he
Constitutional requirement that the President and judges must take a religious oath
excludes some people from holding those offices.62
This form of exclusion is expressly forbidden in many modern Constitutions. It
becomes clear, when comparing our Constitution to others currently in effect, that it falls
short of the expected level of equality. In particular, the Constitution of the United States of
America states:
The Senators and Representatives before mentioned, and the Members of the several
State Legislatures, and all executive and judicial Officers, both of the United States and
of the several States, shall be bound by Oath or Affirmation, to support this Constitution;
but no religious test shall ever be required as a qualification to any office or public trust
under the United States.63
The Constitution of Spain provides that: ‗[n]o one may be compelled to make
statements regarding his or her ideology, religion or beliefs.64 Finally, the Commonwealth of
Australia Constitution states:
The Commonwealth shall not make any law for establishing any religion, or for
imposing any religious observance, or for prohibiting the free exercise of any
religion, and no religious test shall be required as a qualification for any office or
public trust under the Commonwealth.65
In 1999, in their fourth progress report, the All-Party Oireachtas Committee on the
Constitution stated that ―[t]he majority of the committee ... takes the view that a judge should
have a choice between a religious and nonreligious declaration.‘66 The UN Human Rights
Committee reiterated their disquiet in 2008, advising that the Constitution should be amended
to allow for a non-religious declaration to be taken as well as a religious one.67 However in
the initial Report of the CRG it was stated:
A majority of the Review Group favours one declaration only without the religious
references. It does not appear desirable that a judge be required openly to choose
between two forms of declaration thereby indicating his or her religious beliefs. The
daily exercise of the judicial function requires that a judge‘s impartiality should not be
put in doubt by a public declaration of personal values. The same consideration does not
62
UN Human Rights Committee (HRC) UN Human Rights Committee: Comments: Ireland 3 August
1993 CCPR/C/79/Add.21 <http://www.unhcr.org/refworld/docid/3ae6b00c8.html> (12 November 2009).
63
Constitution of the United States of America Article VI (3) [emphasis added].
64
Constitución Española de 1978 Division 1 Section 16(2) [emphasis added].
65
Australian Constitution 1901 section 116 [emphasis added].
66
The All-Party Oireachtas Committee on the Constitution, Fourth Progress Report: The Courts and the
Judiciary (Stationery Office Dublin 1999) 13.
67
UN Human Rights Committee (HRC) Consideration of reports submitted by States parties under article 40 of
the Covenant: International Covenant on Civil and Political Rights: concluding observations of the Human
Rights
Committee:
Ireland,
30
July
2008, CCPR/C/IRL/CO/3,
<http://www.unhcr.org/refworld/docid/48c4ff452.html> (28 November 2009).
67
[2010] COLR
apply to the President, in regard to whom the Review Group suggests a choice of
alternatives.68
This author fully agrees with the CRG‘s original statement. The impartiality of the
judiciary is of the utmost importance, and it would not be in the interest of this impartiality to
require a judge to make any assertion of personal belief. Ideally, which judge presides over
which case should not be an issue. The introduction of a public declaration of faith, or lack
thereof, would introduce inherent presuppositions regarding any given judge‘s likely sway in
a particular case. Suppose then a case on abortion is presided over by a judge who has
publicly decided to take a religious declaration. It is likely that one side would request a new
judge; one who has chosen the non-religious affirmation. This would clearly cast a shadow
of doubt over judicial impartiality. A secular affirmation would ensure that nobody could be
excluded from the position of judge on the basis of their personal beliefs, while at the same
time ensuring that judicial impartiality is upheld, as no statement of personal, individual
opinion would be made.
As regards the positions of President and Member of the Council of State, this author
agrees that a choice, of religious declaration or non-religious affirmation, would be the more
appropriate option. Impartiality does not come into question in this situation, as these
positions are largely based upon personal opinion. Similar to the oaths or affirmations taken
by jurors in court, it would be appropriate for the President and members of the Council of
State to take whichever form of declaration held the most weight for them in accordance with
their own beliefs. It is this writer‘s view that the current declarations required by the
Constitution are the most overt of the provisions stipulating discrimination and inequality on
the basis of religious belief. As Professor Whyte has argued, ‗[s]uch a requirement inhibits,
for no good reason, non-believers from taking up these public offices and as such effects
religious discrimination.‘69 Amendment in the manner discussed above is necessary for the
equal treatment of all citizens.
H
CONCLUSION
This article has explored in depth the anachronistic religious aspects of the Constitution and
has come to the conclusion that reform is necessary, in many areas, in order to uphold the
fundamental right of equality for all citizens. One problem remains. When reforming the
constitution, a referendum is required. It is necessary, therefore, that the People, the majority
of whom still profess a religious faith, vote for the protection of the rights of the minority. In
a democracy, the majority will always rule, and it might seem a logical progression that all
must live by the decisions of that majority. However, that majority has the responsibility to
afford equal rights to all. Professor of Jurisprudence, HLA Hart summed up this point as
follows:
It seems feasibly easy to believe that democratic principles entails acceptance of what
may be termed moral populism: the view that the majority have a moral right to dictate
how all should live …The central mistake is a failure to distinguish the acceptable
principle that political power is best entrusted to the majority from the unacceptable
claim that what the majority do with that power is beyond criticism and must never be
resisted.70
68
Report of the Constitution Review Group (n 13) 179.
The Role of Religion in the Constitutional Order (n 25) 59.
70
H L A Hart Law, Liberty & Morality (Oxford University Press London 1963) 79.
69
68
[2010] COLR
Now, more than ever, it is essential that the People are given the chance to vote, and
moreover that they do vote, in favour of a secular Constitution; a Constitution which views
the religious and the non-religious as equals. Only then can all citizens, as human persons,
truly ‗be held equal before the law.‘
69
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“THE PERFECT STORM” – IMPACT AND ASSESSMENT OF THE PROPOSED
ALTERNATIVE INVESTMENT FUND MANAGERS DIRECTIVE
Jennifer Hourihane *
ABSTRACT
“Never let a good crisis go to waste”.
Since the advent of the financial crisis in 2007, many lessons have been learned, and an
overhaul of financial systems globally has been underway. Banks have been recapitalised,
toxic loans have been grappled with, and lending conditions have tightened. However further
and necessary remedial action to complement this is cited as the imminent need to
“strengthen regulatory regimes, prudential oversight, and risk management” of all actors
who deal with financial institutions and pose a systemic risk to the global financial system.
Such targets include actors within the alternative investment fund industry, with an estimated
€2 trillion in assets under management, and which currently do not come under any
structured regulatory umbrella in the EU. The Proposal for the Alternative Investment Fund
Managers Directive aims to alleviate this failing by providing a framework for effective
regulation of those who manage the industries activity. The Proposal is broadly welcomed
regulation for Europe, and could even present opportunities for Ireland‘s financial services
sector. However it is not completely without flaw- aspects of the draft legislation bear
significant and some perhaps unintended consequences for the industry it targets. This draft
legislation is critically assessed in the instant article, and its pros and cons, potential impact
and suggestions for its fine tuning are outlined.
A
INTRODUCTION
The financial crisis has exposed a series of vulnerabilities in the global financial system.1 It
highlighted how risks in one sector can be transmitted rapidly around the financial system,
with serious repercussions for all financial market participants and for the stability of the
underlying markets.2 One identified cause of the crisis was that policy-makers, regulators and
supervisors entrusted with the oversight of the financial system did not adequately appreciate and
address the risks building up in financial markets.3 The fallout politically, is a question of how
best to structure regulation and supervision of the financial sector in a way that would be
reactive to this problem. The recent famous observation of Rahm Emanuel comes to mind,
‗never let a good crisis go to waste.‘ Responding to the situation in November 2008, the G20
*Jennifer is a Fourth Year Law Student at University College Cork.
1 Directorate General Internal Market and Services ‗Working Document of the Commission Services (DG
Internal
Market):
Consultation
Paper
on
Hedge
Funds‘
2
<http://ec.europa.eu/internal_market/consultations/docs/hedgefunds/consultation_paper_en.pdf> (27 February
2010).
2 Explanatory Memorandum of the Proposal for a Directive of the European Parliament and of the Council, on
Alternative Investment Fund Managers and amending Directives 2004/39/EC and 2009/…/EC COM (2009) 207
final (30 April 2009) (Explanatory Memorandum).
3 The Group of Twenty (G-20) Finance Ministers and Central Bank Governors ‗Declaration Summit on
Financial Markets and the World Economy‘ 15 November 2008 <http://www.g20.org/pub_communiques.aspx>
(27 February 2010).
[2010] COLR
summit4 called for an international effort ‗to strengthen regulatory regimes, prudential
oversight, and risk management‘ in the global financial system.
In line with international G20 objectives, the European Commission has engaged in a
review of the regulatory and supervisory framework for all financial market actors in the
European Union that embed significant systemic risks to the financial system.5 In the course
of this review the need to design a comprehensive and efficient regulatory scheme for the
AIF industry was identified.6 It is necessary to look at some existing problems in the AIF
industry to identify the core reasons behind this conclusion.
This article will trace the impact and functional aspects of the legislation, and intends
to argue that the all-encompassing scope of the draft Directive,7 renders all AIF subject to the
same provisions despite their respective differences. The discussion will the look in detail at
each actor of the AIF industry potentially affected by the proposed legislation and highlight
the unique consequences that its implementation will have on each of these actors
respectively. Consequences of the legislation common to all actors the AIF industry will then
be outlined, including cost implications and potential consequences for non-EU countries and
Ireland respectively. Lastly, in the final analysis, possible ways in which the draft legislation
may be improved before its implementation will be submitted.
B
PERCEIVED PROBLEMS WITH HEDGE FUNDS AND THE AIF INDUSTRY
The High-Level Group on Financial Supervision in the EU and other expert groups entrusted
by the European Commission with the review of financial market actors, concluded that the
systemic risk embedded by AIF has not been regulated sufficiently by current rules and that
enhancement of regulatory measures in financial services, to ensure the safeguarding of
financial stability and the sustainability of economic growth is needed.8 The perceived risks
and existing modus operandi which prospective regulation will address are now discussed.
The AIF industry encompasses a diverse range of investment funds including hedge funds
and private equity, as well as real estate funds, commodity funds, infrastructure funds and
other types of institutional funds. These funds employ a variety of investment techniques,
investing in different asset markets and catering to different investor populations.9 Unlike
other structured investment vehicles which operate under consistent supervision by way of
4 ibid. See also: Commission Communication for the Spring European Council Commission calls on EU
Leaders to stay united against the crisis, move fast on financial market reform and show global leadership at
G20 Press Release IP/09/253 (4 March 2009) and Foundation for European Progressive Studies ‗Hedge Funds
and Private Equity Regulation - Assessment of the proposed AIFM directive and further proposals for a
comprehensive
legal
framework‘
(15
April
2009)
2
<http://www.fepseurope.eu/fileadmin/downloads/political_economy/090425_FEPS_RegulatingHFandPE.pdf> (27 February
2010).
5 Commission Communication for the Spring European Council Commission calls on EU Leaders to stay united
against the crisis, move fast on financial market reform and show global leadership at G20 Press Release
IP/09/253 (4 March 2009).
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/351&format=HTML&aged=0&languag
e=EN&guiLanguage=en> (27 February 2010).
6 Foundation for European Progressive Studies ‗Hedge Funds and Private Equity Regulation - Assessment of
the proposed AIFM directive and further proposals for a comprehensive legal framework‘ (15 April 2009) 2
<http://www.feps-europe.eu/fileadmin/downloads/political_economy/090425_FEPS_RegulatingHFandPE.pdf>
(27 February 2010).
7 The Directive encompasses all non UCITS regardless of legal form.
8 The de Larosière Group The High-Level Group on Financial Supervision in the EU Report (25 February 2009)
15 < http://ec.europa.eu/internal_market/finances/docs/de_larosiere_report_en.pdf> (27 February 2010).
9 (n 2) 1.
71
[2010] COLR
European regulation,10 no such framework exists for the AIF industry. Around two trillion
euro in assets is currently under management within the AIF industry. 11 Given the large
presence of the AIF industry on European financial markets, the need for official regulatory
engagement with the sector is definite.
Particular concerns surround the lack of regulation of hedge fund activity. Hedge
funds have grown fifty fold in terms of assets under management since 1990.12 These
investment vehicles use complex and high risk hedging techniques and flexible investment
strategies.13 Currently, a high level of uncertainty and an unsatisfactory level of transparency
subsist with regard to these practices.14 Hedge fund investment strategies typically involve a
high and systematic use of leverage – through borrowing, short-selling and derivatives
positions,15 and with the high use of leverage, is the attaching systemic risk.
The main reports expressing the need to extend a framework of regulation to the AIF
industry were in consensus that the individual and collective activities of large AIF
employing high levels of leverage amplify market movements and have contributed to the
instability of financial markets across the European Union.16 Particular concerns were raised
regarding the lack of transparency and oversight of AIF vis-à-vis systemically important
financial institutions.17 This is true particularly in relation to hedge funds, as hedge funds
embed significantly more leverage on the financial system than other AIF counterparts.18
The EU High-Level Group on Financial Supervision highlighted the cause for concern
surrounding the direct exposure of systemically important banks to AIF activity, stating that
large AIF, having no deposit base and often relying on leverage from the legitimate banking
system, can be very vulnerable when liquidity evaporates, leading to market turbulence.
Greater transparency with regard to hedge fund investment strategies and leverage levels is
called for on the basis that banks, the main source of leverage to hedge funds, need to be able
to get a global view of the risks they are engaging in. In recent years, trading by hedge funds
has accounted for over 50 percent of the daily trading volume in equities markets. 19 Given
this scale, it is conceivable that highly leveraged and high risk investment funds, directly
linked with the systemically important banking system, should be subject to stringent
oversight. As of yet there are no regulatory frameworks which would facilitate this by setting
10 Structured investment funds such as UCITS regulated under Directive 2009/65/EC of the European
Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative
provisions relating to undertakings for collective investment in transferable securities (UCITS) (recast) [2009]
OJ L 302/32.
11 (n 2) 1.
12 (n 1) 2.
13 Adrian Blundell-Wignall ‗An Overview of Hedge Funds and Structured Products: Issues in Leverage and
Risk‘
(2007)
1OECD
Journal:
Financial
Market
Trends
37
<
http://www.oecd.org/dataoecd/36/62/40972327.pdf> (27 February 2010).
14 The Technical Committee of the International Organization of Securities Commissions ‗Elements of
International Regulatory Standards on Funds of Hedge Funds Related Issues Based on Best Market Practices
Final Report‘ (September 2009) <http://www.iosco.org/library/pubdocs/pdf/IOSCOPD305.pdf> (27 February
2010).
15 (n 1).
16 The roots of existing systemic risk were exposed in the Report of the European Parliament with
recommendations to the Commission on hedge funds and private equity (A6-0338/2008) ('Rasmussen' report),
and European Parliament report with recommendations to the Commission on transparency of institutional
investors (A6-0296-2008) ('Lehne' report), the major cause of systemic risk was identified in these reports as the
impact of the activities of highly leveraged investment vehicles on the stability of the financial system.
17 (n 7).
18 The extent to which hedge funds embed leverage on the financial system and thus contribute to systemic risk
is discussed in more detail at text between (n 62) and (n 65).
19 (n 1).
72
[2010] COLR
down mechanisms for the gathering, pooling and analysing of information on these risks at
European level.20
1
Current Legal Position
Evidently the AIF industry has a large presence in the European financial system and has
grown significantly in recent years. However regulation and oversight of its activity has not
developed to match this growth. Unlike other funds operating under harmonised European
regulation, the activities of AIF industry in Europe are currently regulated by a combination
of national laws, company law, and corporate governance practices. This is supplemented in
some areas by industry-developed standards; however, levels of regulation can vary
significantly across the EU.
There is a cross-border dimension to the AIF industry. Investors, creditors and
trading counterparties of AIF can often be domiciled in different Member States. It has been
concluded that the financial crisis exposed serious failings in cooperation and consistency
between national supervisors, and that the currently fragmented and nationally-based
supervisory model for the AIF industry is not responsive to the reality of today's European
financial markets, in which many AIF operate across borders.21
C
FUNCTIONAL ELEMENTS AND IMPACT OF THE AIFM DIRECTIVE
In response to the existing problems, the European Commission proposed the Alternative
Investment Fund Managers Directive (‗the Proposal‘)22 on 19 April 2009.23 The Proposal
seeks to introduce a harmonised regulatory and supervisory framework for Alternative
Investment Fund Managers (‗AIFM‘) in the EU, with particular focus on the authorisation,
ongoing operation and transparency of AIFM.24
The Proposal follows from the
Commission‘s conclusion that effective monitoring and mitigation of the risks posed by
AIFM activities to their counter parties and, more generally, the financial system, requires
legally binding and enforceable measures to ensure a high standard of regulation and
oversight throughout the EU.25
The Proposal applies to all AIFM that manage, and market non-UCITS26 funds in the
EU, unless the assets of the alternative investment fund (―AIF‖)27 under management does
20 (n 1) 5.
21 Communication from the European Commission on European financial supervision, COM (2009) 252 final
(27
May
2009)
<http://ec.europa.eu/internal_market/finances/docs/committees/supervision/communication_may2009/C2009_715_en.pdf> (27 February 2010).
22 ―The Proposal‖ is also referred to in this document intermittently as ―the Directive‖.
23 Proposal for a Directive of the European Parliament and of the Council, on Alternative Investment Fund
Managers and amending Directives 2004/39/EC and 2009/…/EC COM (2009) 207 final (30 April 2009) (The
Proposal).
24 (n 2).
25 Commission Staff Working Document accompanying the Proposal: Executive Summary of the Impact
Assessment
(30
April
2009)
6
<http://ec.europa.eu/internal_market/investment/docs/alternative_investments/fund_managers_executive_summ
ary_en.pdf> (27 February 2010).
26 Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and
administrative provisions relating to undertakings for collective investment in transferable securities (―UCITS‖)
[1985] OJ L375.
27 The abbreviations of AIFM and AIF contain both singular and plural.
73
[2010] COLR
not exceed 100 million euro, or 500 million euro when the AIF under management are not
leveraged and have no redemption rights exercisable for a period of five years after the
incorporation of the AIF.28 The definition of AIF under the Proposal is extremely broad and
captures hedge funds, private equity funds, commodity funds, and real estate funds. The
fulcrum of the Proposal is the authorisation requirement for AIFM in order to operate in the
EU. Thus AIFM marketing or managing AIF to professional investors in the EU may only
do so with prior authorisation from the home Member State competent authority, which may
approve, restrict or reject an application by AIFM.
Authorisation pursuant to the Directive would allow AIFM provide management
services to funds established elsewhere in the EU and market its funds to professional
investors in other Member States, subject to a simple notification procedure.29 Notably, and
as will be discussed at a later stage,30 this new marketing passport will only be available to
non Member States three years after the transposition of the Directive, subject to stringent
compliance with regulation and supervision of an equivalent level to those laid out in the
Proposal.
The Proposal introduces capital requirements for AIFM31 of 125, 000 euro where the
value of the portfolios managed exceeds 250 million euro. Additional own funds of 0.02
percent of the amount in excess of 250 million euro must be provided. A Depository
nominated by AIFM must be an EU established credit institution, and an AIFM must appoint
an independent valuator for each AIF it manages. Additionally, in the interest of enhanced
transparency, the Proposal imposes annual and periodic reporting requirements on AIFM
towards the competent authority of their home Member State, including reports on the main
markets and instruments in which the AIFM trade, and the main categories of assets in which
the fund is invested. The AIFM must also provide investors with specific information
comprising of the valuation procedures, liquidity risk management, percentage of illiquid
assets, and periodic disclosure of risk profile of the fund. The Proposal also provides specific
reporting obligations for AIFM managing leveraged AIF, and those who acquire controlling
influence in companies.32
D
“BARKING UP THE WRONG TREE?”
Aside from legislative action at European level, the G20 objectives also sparked off expert
and political debate at the European Commission, which pre-empted the drafting of the
current Proposal. It is submitted that the all-encompassing regulatory approach of the draft
legislation does not sit squarely with the views of certain significant participants in that
debate. The European Commissioner for Internal Market Services spoke of the need for
caution in devising regulation specific to the AIF industry, and the need for targeted and
proportionate measures, stating that any regulatory action should distinguish between hedge
funds, private equity and other forms of alternative investment, on the basis that the vehicles
raise different issues which call for suitably differentiated responses.33
Furthermore, the all encompassing approach of the Proposal is not akin to the
Commission's initial approach; the Commission‘s consultation paper in the lead up to
28 (n 22) 6 art 2 of the Proposal.
29 ibid 31art 31 (2), (3) of the Proposal.
30 See full discussion at text after (n 76).
31 (n 22) 31 art 14 of the Proposal.
32 ibid 34 ch V of the Proposal; see further at text after (n 37).
33 Concerns voiced by Charlie McCreevy under whose aegis the Directive was drafted.
74
[2010] COLR
drafting the Proposal was premised on hedge fund issues.34 Similarly the EU High-Level
Group on Financial Supervision Report focused on concerns related to, and recommendations
specifically associated with hedge funds,35 and most importantly, it established that hedge
funds contributed to the systemic risks which both international and European regulators now
wish to target. On an international platform identical conclusions were drawn,36 and yet the
instant Proposal does not regulate hedge fund activity exclusively; rather, the entire AIF
industry falls within the remit of its measures.
A possible reason for this is that the Commission, in drafting the legislation, felt that
it would be too difficult to define a hedge fund, because of the diverse nature of investment
policies associated with such funds, and that any attempt to do so would make arbitrary
circumvention of the regulations possible. It is conceded that effort was made to incorporate
some differentiation into how the provisions are applied to different types of AIFM, for
instance those using leverage or those with controlling interests in companies.37 However the
hot topic prevailing is whether this effort to tailor provisions really cuts it for the AIF
industry, and what the consequences of an all-encompassing regulation will be for its various
actors.
E
“ONE SIZE DOES NOT FIT ALL”
The G20 statement of November 2008 insisted that regulatory advances towards enhanced
financial supervision should ‗ensure that all financial markets, products and participants are
regulated or subject to oversight, as appropriate to their circumstances.‘ The question in the
instant context is whether the proposed Directive as it stands will prove itself appropriate for
each respective player in a diverse industry. It is contended that the Commission may have
drafted legislation aimed ambitiously at an industry as a whole, without fine-tuning its
provisions appropriately for the particular ‗products and participants‘ within that industry.
The month following the foregoing G20 declaration, the Commission issued a
consultation paper,38 which served as the basis for the Proposal. Here, the Commission noted
that responses to the paper from interested parties, including from investors and the hedge
fund industry, would be indispensable - serving as the foundations for the Commission to
draw an appropriate regulatory initiative.39 This was also to be in line with the G20 action
plan, which foresees that private sector bodies that have already developed best practices for
private pools of capital and/or hedge funds should bring forward proposals for the movement
towards strengthened regulatory regimes. Thus, the Commission initially set out to allow
industry-developed standards have a role to play in informing and guiding the drafting of the
current Proposal, however this is scarcely evidenced in its provisions. This is also reflected
in the Commissions impact assessment of the Proposal, which fell short of either accurately
estimating or considering the ultimate consequence and cost of compliance for the AIF
industry.40 But the industry has spoken for itself on this issue.
34 (n 1).
35 (n 7).
36 Technical Committee of the International Organisation of Securities Commissions ‗Hedge Funds Oversight Final
Report‘
(22
June
2009)
which
emulates
G20
objectives
<http://www.iosco.org/library/pubdocs/pdf/IOSCOPD293.pdf> (27 February 2010).
37 (n 32).
38 (n 1).
39 ibid 3.
40 (n 24) 7.
75
[2010] COLR
The Alternative Investment Manager Association (―AIMA‖)41 response confirmed
that the Proposal had been drafted without anything like the usual standards of consultation
(with the AIF industry) normally expected from the Commission, and that as a direct
consequence the draft presumes a structure for the industry which does not resemble reality. 42
Similarly, the European Venture Capital Association, in its assessment of the Proposal,43
criticised the fact that whilst the Explanatory Memorandum of the legislation identifies the
different types of AIF and their associated risks, the Proposal itself imposes undifferentiated
provisions. The message at grassroots level is clear – throwing a blanket regulation on the
AIF industry may in theory cover the objectives which the Proposal intends to achieve, but in
practice has unintended consequences for each of the different sectors in the industry.
F
PRIVATE EQUITY – IMPACT AND CRITICISMS
It is established that the draft Directive should accommodate the significant differences
between the main types of AIF actors and their strategies. Private equity groups in particular
have levied trenchant criticism against certain aspects of the regulation on managers in their
sector, and feel that not enough has been done by the Commission to distinguish their sector
from hedge funds. Indeed it was unequivocally acknowledged that private equity and venture
capital sectors did not contribute to an increase in macro-prudential or systemic risk.44 As
will now be discussed, the private equity sector holds that it is in risk of being burdened by
disproportionate measures and submits that provisions should be tailored more precisely for
different investment strategies, particularly in certain areas relating to capital, disclosure and
depository requirements.
The Directive would require that private equity fund managers have a depository that
is an EU credit institution and provides that it shall be the task of the depositary to receive all
payments, book them on separate accounts and verify whether the fund or the AIFM on
behalf of the fund has obtained the ownership of all other assets invested in. EVCA argues
that such a principle does not justify a separate depositary to be appointed by the fund
manager. Before making an investment the private equity manager engages counsel to
proceed with a thorough due diligence to make sure that the fund obtains ownership in the
portfolio company. An additional exercise by the depositary would substantially increase the
costs for no investor benefit.45 It is further submitted that the disclosure requirements
imposed on AIFM in the proposed Directive46 may damage a process of engagement between
AIFM and investors, which is widely considered necessary and positive during the period of
marketing funds in private equity.47 The industry insists that any provision which imposes
prior approval of marketing material, and subsequent changes to marketing provisions, will
severely curtail the collaboration between manager and professional fund investors in
41 The International Association representative of the hedge fund industry and its managers.
42 Florence Lombard, Executive Director AIMA „Statement on European Commission Directive‘ (23April
2009) <http://www.aima.org/en/announcements/aima-statement-on-european-commission-directive.cfm > (27
February 2010).
43 European Private Equity & Venture Capital Industry ‗Response to the proposed Directive of the European
Parliament and Council on Alternative Investment Fund Managers‘ (26 June 2009)
<http://www.evca.eu/uploadedFiles/News1/News_Items/2009-06-26-ResponsepaperAIFM.pdf> (27 February
2010).
44 (n 2).
45 See further text after (n 92).
46 (n 22) 39 Article 31 of the Proposal.
47 (n 43) 6.
76
[2010] COLR
structuring and negotiating fund terms to meet the requirements of those investors.48 It is
recommended that regulation in this area should take into account the fact that the
commercial terms of venture capital funds are not ‗pre-packaged‘; rather, they are negotiated
contracts with professional investors that develop in the course of the interaction with that
investor.
On this point, EVCA highlight that the marketing of private equity funds is a complex
and time consuming process, and that the application of regulatory approvals in this area does
not address any identified risks, would impose a significant and unwarranted burden on home
authorities and firms, and would be quite unwelcome to the professional investors that the
proposed legislation intends to protect. It is recommended that the Proposal be amended so
that competent authorities would receive the documents required for disclosure from AIFM
only when the structuring and negotiating of fund terms with investors has reached
conclusion.49
Another significant provision of the Proposal that is targeted specifically at the private
equity sector imposes specific requirements for disclosure at the portfolio company level.50
The understood motive behind this requirement is that additional disclosure obligations
should be triggered when an increase occurs in the participation of funds or fund managers in
a company.51 The Directive imposes this requirement on a fund to report; through its annual
report, when it acquires control of 30 percent of a company‘s equity capital. This will apply
only if the relevant company is composed of more than 250 employees and a turnover in
excess of 50 million euro. The provision however has been criticised by the private equity
sector as it is perceived that the vast majority of companies encompassed in this definition are
not of any wider public interest, and that such requirements do not withstand cost/benefit
analysis.52
The glue knitting the foregoing arguments is the simple fact that private equity funds
are usually closed ended vehicles. The sector has expressed concerns that the introduction of
extra-costs, often borne by investors, after the funds launch, will result in a lower return for
these funds, which could in the worst case lead to an early termination of the funds if unable
to carry these extra costs.53 Such early terminations of funds, which are almost without
precedent, will imply investments to be realised prematurely, leading to value destruction for
investors and creating problems for the portfolio companies in sensitive stages of their
development.54 The argument that the instant Proposal leaves private equity and venture
capital firms being burdened by provisions disproportionate to the nature of their industry is
well quantified, particularly in light of the fact that private equity has not been held to present
systemic risk – when it is systemic risk which this legislative development initially wished to
target.
G
HEDGE FUNDS – ATTEMPT TO ESCAPE THE REGULATORY NET
It has been established that the Commission‘s initial target in legislating were actors within
the AIF industry who contribute to systemic risk, and most significantly, that hedge funds fit
this criteria. Of course it is right that systemically significant institutions should be subject to
48 ibid.
49 This being a reversal of what the Directive currently requires.
50 (n 22) 36 art 27 of the Proposal.
51 (n 6) 9.
52 (n 43) 6.
53 ibid 8.
54 ibid.
77
[2010] COLR
oversight. The premise of the hedge fund industries argument against such oversight is that
hedge funds did not play a crucial role in the crisis.55 However the causal links with the
emergence of the financial crisis are not strictly speaking the Commissions targets in this
regulation, rather those which pose a systemic risk to the global economy. It will be
contested that the hedge fund industry does in fact pose sufficient systemic risk to warrant the
regulation.
The premise of the AIMA argument subsequent to G20 statements and the Proposal‘s
inception was that the current crisis is a banking crisis whereas the hedge fund industry‘s role
was marginal.56 ALFI put forward a similar argument, suggesting regulatory initiative should
take into account that the financial turmoil originally started in the banking sector.57
Furthermore, the Turner review contested that only entities which provide banking services
should be regulated, and that the vast majority of hedge funds do not fall into this category.58
However as will now be discussed, there is an imminent need for enhanced supervision and
transparency on the part of hedge funds. This is especially true with regard to banks, because
banks are the main lenders to hedge funds, and their supervisors have thus far not been able
to obtain full view of the risks they were engaging in. 59 Losses incurred by hedge funds, and
the risk of their failure, are borne directly by investors and their immediate counterparties,
with the most direct risk-transmission channel from hedge funds to the wider financial system
being the banks.
One efficient way to achieve the necessary supervision is to ensure that front-line
regulators are in a position to monitor the build-up of risks in this sector by way of accurate
and timely judgment on the extent of aggregate leverage of hedge fund trades. The financial
crisis has revealed that the level of transparency towards regulators throughout the financial
markets in this regard has not been sufficiently high to allow timely judgments to be made
and corrective action to be taken.60
The introduction of a formal authority to register these funds, assess their strategies,
methods and leverage provides the perfect lens for necessary oversight.61 This is provided in
the Directive by way of provisions that target hedge funds by imposing obligations on AIFM
managing leveraged AIF.62 Where an AIFM manages an AIF, which employs ‗high levels‘
of leverage on a systematic basis, further reporting obligations to regulators and investors will
apply. For these purposes ‗high levels‘ of leverage means a debt to equity ratio in excess of
1:1 in two out of the previous four quarters. The competent authorities of Member States will
also be given express powers to impose leverage limits in the event of potential systemic risk,
and emergency powers to restrict the use of leverage in respect of individual funds and
managers in exceptional circumstances.
The foregoing is warranted and tailored to a specific purpose - the size of hedge fund
positions is amplified by the extensive use of leverage, and the larger the fund, the greater the
55 AIMA EC Directive does not deliver proportionate response Press Release (29 April 2009)
<http://www.aima.org/en/media_centre/press-releases.cfm/id/999D2189-AD87-40C4-86B1436063D19423> (27
February 2010).
56 AIMA ‗G20 reaction statement‘ (2 April 2009) <http://www.aima.org/en/announcements/aima-g20-reactionstatement.cfm> (27 February 2010).
57 ALFI contribution to the working document of the Commission Services (DG Internal Market) Consultation Paper on Hedge Funds.
58 Lord Turner, Chairman of The Financial Services Authority The Turner Review: A regulatory response to the
global banking crisis (Report) (March 2009)
<http://www.fsa.gov.uk/pages/Library/Corporate/turner/index.shtml> (27 February 2010).
59 (n 1).
60 ibid 5.
61 (n 7) 25 Recommendation 7.
62 (n 22) 34 art 22 of the Proposal.
78
[2010] COLR
systemic risk. According to the International Monetary Fund, average hedge fund leverage is
between 1.4 to 1.7 times the funds capital, although the level for some hedge funds may be
much higher depending on their investment strategy. There has also recently been a distinct
connection between high levels of leverage and large hedge fund failures. 63 In some cases,
leverage of the hedge fund may be two or three times the value of the fund‘s equity.64 Thus
the Proposal‘s provisions on leverage in AIF should be a welcomed development as it enables
the targeted monitoring of hedge funds, and their relationship with the banking system.
A more general move towards greater transparency and cross border oversight in
relation to hedge funds is also welcomed and required. Detailed recommendations were
made on an international platform, devised by the International Organisation of Securities
Commissions65 wherein the most significant recommendation was that hedge fund managers
should be registered and should supply information to regulators on investment strategies,
risk management mechanisms and capital requirements.
These international
recommendations are rightly and adequately realised in the Directive. In light of the
foregoing, it is submitted that the hedge fund industry insisting it should not be met with
regulation by virtue of the fact that it did not play a major role in the emergence of the crisis
does not pack a punch with the G20 goal to target systemic risk. It is undisputed that hedge
funds contribute to such risk, and the international support for hedge fund regulation
resonates.
H
COST – A COMMON GRIEVANCE
It has been argued by actors across the AIF industry that compliance with certain aspects of
the Directive would impose significant cost related burdens on AIF, that many of the
measures do not withstand cost benefit analysis, and that an adequate impact assessment of
the potential cost of compliance was not engaged by the Commission at its drafting stages.
According to the Commission, the current threshold triggering the application of the
Directive66 entails that around 30 percent of AIFM managing almost 90 percent of assets of
EU domiciled AIF.67 The AIF industry has estimated that the Directive in its current form
would present an approximate 2.5 percent reduction in returns that those AIF would deliver
under the Directive – largely due to leverage restrictions and increased compliance costs.68
The cost of compliance with regulation can impact upon smaller funds
disproportionately.69 It is argued that the thresholds as they stand do not provide an effective
safe harbour for small funds, and that such funds should be exempt because they do not have
63 (n 1) 5.
64 R Kiefer F Mattern and F Scholz ‗The state of the corporate board 2007: A McKinsey Global Survey‘ (June
2007)
<https://www.mckinseyquarterly.com/Governance/Boards/The_state_of_the_corporate_board_2007_A_McKins
ey_Global_Survey_2011> (28 February 2010).
65 (n 36).
66 The Directive will apply to all AIFM managing hedge funds above €100 million in value and private equity
funds of €500 million or more not using leverage.
67 This statistic refers to hedge funds, as the €500 million threshold applies mainly to private equity.
68 AIMA European Directive could cost European Pension Industry €25 billion annually Press Release (4
August
2009)
<http://www.aima.org/en/media_centre/press-releases.cfm/id/7B789862-0DD2-40C9A0547A7687F4C51D> (28 February 2010).
69 For example, in the U.S. during 2004 companies with revenues exceeding $5 billion spent 0.06% of revenue
on the Sarbanes Oxley regulation compliance, while companies with less than $100 million in revenue spent
2.55%. ‗Final Report of the Advisory Committee on Smaller Public Companies to the SEC‘ (23 April 2006) 3334 <.http://www.sec.gov/info/smallbus/acspc/acspc-finalreport.pdf> (28 February 2010).
79
[2010] COLR
a significant impact on the Internal Market.70 Rather, they are specialised in the financing of
small and medium sized firms at local, regional or national level, according to national
practices and rules or they are highly specialised in promising technological projects and
should therefore remain subject to national regulation.71 Yet certain groups maintain that any
de minimis exemption whatsoever would lead to a multiplication of small funds, jeopardising
the quality and accountability of their management.72
A workable balance needs to be struck between the foregoing conflicting viewpoints.
A viable solution could be to base any de minimis exemption on a revised application of the
subsidiarity principle73 protecting small funds with less systemic impact from overburdensome requirements. The Commission was clearly unsure of whether to apply this
principle, apparent from the fact that the College of Commissioners had difficulty deciding
on the thresholds for the application of the Directive. An initial proposal put the de minimis
exemption at 250 million euro. Nevertheless, the Commission yielded to political pressure in
Parliament to lower the exemption to that which is now contained in the Directive.74
It is submitted that the Commission should set the lowest threshold at 250 million
euro. It is desirable that only larger funds fall within the scope of the Directive, because the
larger the fund, the greater the systemic risk.75 Perhaps therefore the Commission should rule
on the de minimis thresholds with a lighter touch in order to make regulate in proportion to
risk and cost benefit analysis.
I
THIRD COUNTRIES GET THE SECOND-CLASS TICKET FOR EUROPE
Once authorised under the Directive, AIFM may market AIF to professional investors
throughout the EU subject to a simple notification procedure.76 The marketing of AIF in the
EU will only be allowed with this special marketing passport that the Directive creates. This
passport is said to be the reward for compliance with the Directive. It is argued that the
proposed benefits of unencumbered cross-border marketing of AIF are not sufficient to
outweigh the burden of compliance for some parties of the AIF industry. 77 This is
specifically the case for non-EU AIF, which face significant obstacles, and a lengthy spell in
the waiting room, before obtaining their passport to market in the EU, as will now be
discussed. Under the Directive, AIFM may only market an AIF domiciled in a non-EU
country (‗third country‘) to investors within the EU if the third country in which the AIF is
domiciled has been deemed compliant with requirements on regulation and supervision to an
equivalent level of those laid out in the Directive. In addition to the equivalence requirement,
the third country in which the AIF is domiciled must have signed an OECD-compatible
double taxation agreement with the Member State in which it wishes to market.78
70 (n 43) 2.
71 ibid 3.
72 (n 6) 5.
73 It is acknowledged that in drafting the Directive the Commission did take this into account - (n 6) ‗Legal
Elements of the Proposal‘ - but perhaps not sufficiently; see further text after (n 92).
74 Group of the Progressive Alliance of Socialists & Democrats in the European Parliament.
75 (n 1); See further, discussions of the existing model in the UK, (n 7) 24.
76 Pursuant to which relevant information is provided to the home competent authority by the AIFM and
transmitted to the competent authority of the Member State in which the AIF is to be marketed.
77 Julian Young, lead partner for the Ernst & Young European hedge funds practice.
78 In order to market a non-EU AIF the Third countries in question must sign an agreement with the Member
State in accordance with Article 26 of the OECD Model Tax Convention to ensure an effective exchange of
information on tax matters.
80
[2010] COLR
Additionally, and most significantly, even if all the foregoing were satisfied, the third
country AIF cannot obtain nor benefit from the marketing passport until at least three years
after the transposition of the Directive. This period of time has been set aside to allow the EC
to check whether the above regulatory equivalence is in place in the third countries where the
funds are domiciled. 79 This time stipulation will have major consequences for third country
AIF, which face a major loss of business in the EU. Funds outside the EU face being locked
out of the EU market for three years after the transposition of the Directive and this has
considerable impact upon all entities of a global AIF industry.80 For instance, the majority of
AIF such as hedge and private equity funds are domiciled in non-EU centres,81 and currently
a significant number of EU based AIFM manage such third country AIF. For example, many
third country AIF offered to professional investors in the EU have UK-based managers.82
However, at best, these managers will not be entitled to market those funds until the
expiration of three-years after the transposition of the Directive. As a consequence, European
institutional investors would face a distinct reduction in choice, and a corollary reduction in
returns. An interesting case study in this regard is the European pension funds industry.
It is estimated that the draft Directive could cost Europe‘s pension fund industry up to
25 billion euro a year if implemented in its current form.83 The total size of assets under
management by the European pension fund industry is 5 trillion euro, with an approximate
allocation to AIF of 20 percent. As previously discussed, if the Directive were implemented
in its current form investors could expect an approximate reduction in performance of 2.5
percent as a result of certain provisions; in the instant context, a reduced choice in
investments due to the three-year lockout period for non-EU funds. Therefore the estimated
reduction in returns the European pension fund industry would face is earmarked at
approximately 2.5 percent of one trillion euro, or 25 billion euro.84 This is an estimated
figure but it is illustrative of the scale of the impact the Directive may have were it to be
passed in its current form.
Thus the draft Directive provisions regarding third countries as they currently exist
have the potential to hamper the competitiveness of the European financial services sector or
indeed the economies of Europe as whole.85 It must be noted however, that this timeframe is
a stipulation to obtaining the passport, and that the passport, of itself, bears significant
potential benefits for the AIF industry more generally. It is submitted that in some European
quarters the passport is a welcomed development, and sufficient reward for compliance with
the Directive. ALFI participated in consultation and examination of the main issues
surrounding regulation from a hedge funds perspective.86 It acknowledged that hedge funds,
as non-harmonised products, currently do not benefit from a passport, and that such an
innovation, allowing AIFM to manage and market funds throughout the EU either directly or
via a branch, without having to comply with each country's particular legislative
requirements- would be desirable.
79 The Commission will decide through the comitology procedure on the equivalence of the relevant third
country legislation and on comparable market access.
80 AIMA AIMA warns of the global impact of the EU AIFM Directive Press Release 27 July 2009
<http://www.aima.org/en/media_centre/press-releases.cfm/id/6D509933-0F03-4D6B-B193ECB26D844F36>
(28 February 2010).
81 (n 6).
82 57% of the European Private Equity industry is located there.
83 (n 68).
84 ibid.
85 ibid.
86 (n 57).
81
[2010] COLR
J
THE PROPOSAL – IRELAND‟S OPPORTUNITY?
The Proposal if implemented will have overbearing consequences on non-EU AIF, namely
the three-year marketing lock out period, and the connected regulatory equivalence
requirements. It is established that this will in turn increase costs and reduce returns for AIF,
and especially those ran from non- EU, ―offshore‖ centres. When this happens it can make
more sense for funds in these circumstances to domicile onshore.87 For example, domiciling
a management company in Ireland, as an EU Member State, would then allow AIFM to
benefit fully from the flexibilities of the Directive in terms of product and distribution;
namely the marketing passport created in the Directive.
Recently the Irish Government enacted legislation which will enable existing offshore
fund companies to re-domicile to Ireland. The Companies (Miscellaneous Provisions) Act
2009 was recently enacted and aims to improve efficiency in the process of funds migrating
into Ireland and reduces regulatory burdens on the migrating company. 88 This is a positive
step in the right direction towards Ireland becoming a favourable destination for non-EU AIF
wishing to domicile in EU shores to position themselves well to deal with the potential
challenges presented by the AIFM Directive.89 As the foregoing would highlight, elements
of the Proposal could spark domiciliation of AIF in Ireland which is undoubtedly a good
thing from a financial services perspective. However it is established that the Proposal is not
without flaw and attention must still be drawn to possible ways to make provisions of the
Proposal more balanced and compliance with it more workable for the AIF industry as a
whole, without negating the key objectives of the legislation.
K
REVIEW OF THE PROPOSAL – AN INJECTION OF COMPROMISE?
In order for the Directive to become law, it needs to be approved by the European Parliament
and the European Council. The Economic and Monetary Affairs committee (―ECON‖) has
been assigned to review the Proposal, devise and agree amendments, and prepare a report for
political approval. The European People‘s Party (―EPP‖) has overall responsibility for this
report and will steer it to ultimate conclusion, where the final draft of the Directive will be
put to vote, with the first vote in plenary taking place in early 2010. The EPP remains
ambiguous in its view of the legislation; it labelled the existing Proposal as ‗good but not
good enough‘. The political debate taking place on the Directive could therefore go either
way. With the review of the legislation underway experts from the twenty-seven finance
ministries of the EU are currently making line-by-line amendments to the Proposal, and a
considerable level of political lobbying from AIF industry groups in search of an injection of
compromise to its most contested provisions has been underway since the draft legislations
inception. The impact of this will only come to fruition when the ECON report is drawn to
conclusion and the final draft is put to vote.
87 The European Journal ‗The Commission‘s proposal on Alternative Investment Funds Managers is bad for
British‘s businesses‘ (13 May 2009) < http://europeanjournal.typepad.com/my_weblog/2009/05/thecommissions-proposal-on-alternative-investment-funds-managers-is-bad-for-britishs-businesses.html>
(28
February 2010).
88 The Companies (Miscellaneous Provisions) Act 2009, enacted on 23 December 2009
<http://www.irishstatutebook.ie/2009/en/act/pub/0045/print.html> (February 28 2010).
89 (2010) 82 (1) AIMA Journal <http://www.aima.org/en/document-summary/index.cfm/docid/234CC5A2A424-49F3-9CCD983A01CF17CC> (28 February 2010).
82
[2010] COLR
L
REGULATION TO FIT ALL – THE NATURE OF COMPROMISE CALLED
FOR AND THE LIKELIHOOD OF THIS BEING RECOGNISED IN THE
DIRECTIVE‟S FINAL DRAFT
The AIF industry is not blankly opposed to regulation, rather it realises the potential benefits,
and wishes to suggest material changes that would make such regulation a more workable
prospect for the industry as a whole. It is noted that appropriate, proportional and risk
adequate regulation is supported by all sectors of the AIF industry, and it is furthermore
argued that the draft Directive in its current form would not be conducive to achieving these
goals.90
The scope of the Directive affects a vast spectrum of actors across the AIF industry.
In this context it is pertinent that the points of criticism and corresponding solutions put
forward by the AIF industry should be taken into account by the Commission before the
legislation is approved and all AIF are taken to Brussels for regulation in the one bag. One of
the major changes called for is a revision of the provisions regarding third countries. It has
been suggested that the Directive makes it so difficult and costly for non-EU funds to access
the EU market that it is protectionist in effect, if not in intent.91 On this point it is has been
strongly recommended that non-EU funds be granted immediate market access in the EU
when complying with the requirements contained in this Directive, so as to avoid prejudice
and protectionism; it has been argues that there is no regulatory justification for the three-year
delay of the EU marketing passport for AIF domiciled in third countries.
Aside from this time factor in obtaining the passport, it is submitted that the
Commission also miscalculated the difficulty and cost inherent in reaching the regulatory
equivalence essential to obtaining it, and furthermore that it could prove virtually impossible
for some non-EU AIF to reach such equivalence. A significant hurdle for third countries in
this regard is the requirement that depositories nominated by AIFM to take custody of assets
for each AIF it manages must be EU established credit institutions. This would imply that
delegation to depositaries outside the EU is not possible. Such provision would make it very
difficult for certain third countries where local custody is a requirement to reach the
equivalence standard, thereby locking them out of the EU market.
Attention has also been drawn to the Directives provision on the liability and tasks of
depositories, which refers to depository liability as ‗failure to perform its obligations pursuant
to this Directive.‘92 It is recommended that clarification is needed as to what ‗failure‘ means
exactly, in order not to impose unlimited liability on the depositary. 93 In addition, the burden
of proof with regard to liability lies with the depository pursuant to the draft Directive,
thereby unnecessarily changing the UCITS concept of liability. There is concern that the
foregoing provisions would create a situation where it would be difficult to get a depositary,
with fees becoming untenably high.94 A significant increase in the cost of custody is a price
that would ultimately be borne by investors. This is surely an unintended consequence from
90 M Thommen and Dr MD Otter ‗Swiss Funds Association Position Paper on the Draft AIFM Directive‘ (11
August
2009)
<http://www.swissalternativeinvestments.ch/user_files/press/SFAPositionPaper_AIFM_090811.pdf>
(28
February 2010).
91 ibid; AIMA The Global Impact of EU AIFM Directive Press Release (27 July 2009)
<http://www.aima.org/en/media_centre/press-releases.cfm/id/6D509933-0F03-4D6B-B193ECB26D844F36>
(28 February 2010).
92 (n 22) 30 Article 17(5) of the Proposal.
93 (n 89); It is argued that the depositary should only be held liable if it did not undertake appropriate due
diligence and regular monitoring. This standard is reasonable and enshrined in national legislation of many
Member States.
94 (n 43) 5.
83
[2010] COLR
the Commissions point of view. It is argued that the provisions governing UCITS on the
foregoing issues have proven their worth and ensured prudent investor protection, and that
the provisions relating to depositories in the Directive should be brought more in line with the
UCITS regulation. It is strongly advocated that the provisions on AIF depositaries should be
negotiated and finalised by Member States and the European Parliament in their review of the
Directive only after the publication of the outcome of the Commission‘s consultation on
UCITS depositaries.95
These calls for certain aspects of the Directive to be made more consistent with
existing UCITS regulation, is in line with the principle of subsidiarity96 – the appropriate
application of which would have a significant impact in reducing the cost of compliance with
the Directive.97 It is acknowledged that regulation of AIF is not unwarranted and it must be
accepted that some compliance costs will be incurred. The impact of the cost of compliance
with the Directive has already been highlighted. It is argued by some that the weight of this
impact on smaller funds is largely due to exemption thresholds provided in the Directive that
are too low and therefore do not fully take into account the principle of subsidiarity.98
To remedy this it is suggested that existing thresholds should be modified so that the
Directive would impact exclusively on larger funds that could properly afford compliance,
and exempt smaller funds, since these are unlikely to give rise to important systemic risks or
to be a threat to orderly markets. A revised threshold of 250 million euro would capture 36
percent of managers of non-UCITS and 96 percent of the assets invested in these funds.99
Most importantly, such a threshold would ensure most managers in niche businesses,100 for
whom the new requirements could be overly burdensome, are not caught by the Directive.
The Commission has stated that the choice of a Directive as the legal instrument represents
adequate application of the subsidiarity principle,101 and makes a ‗sensible trade-off between
harmonisation and flexibility.‘102 The choice of a Directive as legal instrument does allow
Member States a degree of flexibility in deciding how to adapt their national legal orders to
the new framework.103 Yet in some instances a Directive can actually spell out its objective
in such detailed terms as to leave the Member States with scant room for manoeuvre.104 The
Commission are adamant that the choice of Directive as implementing instrument leaves
sufficient room to manoeuvre regarding the thresholds, therefore it remains to be seen if they
will modify them in their review.
95 EFAMA EFAMA Welcomes Commission Public Consultation on the UCITS
Depository
Function
Press
Release
(3
July
2009)
<http://www.efama.org/index2.php?option=com_docman&task=doc_view&gid=1000&Itemid=35>
(28
February 2010).
96 A principle to be applied to areas of regulation where the Community does not have exclusive competence;
The principle delineating areas where the Community should and should not act, as laid down in art 5(2) of the
Treaty Establishing the European Community.
97 It is recognised that funds who invested in compliance with both UCITS and MIFID regulations are now too
fall under the remit if the Directive.
98 (n 43) 3.
99 The Commission‘s analysis of data from Morningstar.
100 For example, start-up and venture capital.
101 (n 2).
102 ibid.
103 A directive is binding on the Member States as regards the objective to be achieved but leaves it to the
national authorities to decide on how the agreed Community objective is to be incorporated into their domestic
legal systems.
104 This has occurred in the case of directives on technical standards and environmental protection; see further
Dr
K-D
Borchardt
The
ABC
of
Community
Law
<http://ec.europa.eu/publications/booklets/eu_documentation/02/txt_en.pdf> (28 February 2010).
84
[2010] COLR
The marketing passport provided for in the Directive, is essentially the dangling carrot
in exchange for compliance, but also indirectly for tax compliance. The Directive permits the
marketing of non EU AIF if the country of domicile has entered into an agreement on
effective exchange of information on tax matters based on article 26 of the OECD Model Tax
Convention with the Member State on whose territory the AIF shall be marketed. This shall
ensure that national tax authorities may obtain all information from the tax authorities of the
third countries activities that are necessary to tax domestic professional investors investing in
offshore funds. The vast majority of AIF were incorporated in offshore jurisdictions with the
Cayman Islands being the most popular;105 this is because offshore centres offer a
combination of privacy and zero tax regimes for non-citizens. It has been proven that in such
cases voluntary compliance with tax codes falls to below 50 percent.106 Addressing the tax
issue is therefore critical.107 The Directive achieves this by introducing a strong incentive for
compliance with the OECD Tax code. In light of the foregoing, this innovation is welcomed,
and helps implement a policy-mix that can best achieve the objectives of the G20 to enhance
the transparency and the quality of regulation in off shore financial centres.108
While the private equity and venture capital sectors accept the objectives of the draft
Directive, amendment of the text through the EU legislative process is requested which
would account for the specificities of its industry and the critical contribution it plays in
financing the European economy.109 In the likely case that the Directives all-encompassing
scope will not be retracted, leaving private equity within its remit, the current threshold
applicable for private equity – the 500 million euro exemption threshold will most likely
remain unchanged.110 However provisions in need of revision in the context of private
equity, as discussed by EVCA and in previous sections, are undoubtedly in the area of
disclosure and depository requirements.
A degree of cost must be incurred by those AIF posing the greatest systemic risk.
This gauge ensures the cost of compliance is proportionate. As previously discussed, large
hedge funds fall into this bracket. The industry itself agrees with provision of systemically
significant information by large hedge fund managers to their national regulators.111 The
revision of the de minimis exemptions has been discussed as an appropriate way of achieving
this. A threshold of 250 million euro would capture 15 percent of hedge fund managers,
managing 76 percent of assets of EU domiciled hedge funds.
However revision of exemption thresholds is not synonymous to an overhaul of the
Proposal‘s existing provisions to meet the hedge fund industries taste. 112 The hedge-fund
industry has a symbiotic relationship with the banking sector. As a result, the risk exposures
of the hedge-fund industry may have a material impact on the banking sector, resulting in
new sources of systemic risks.113 Large hedge funds high and systematic use of leverage is
105 Cayman Islands hold 63% of global Hedge Fund assets.
106 (n 6). Statistics proven by the United States Department of the Treasury; Internal Revenue Service.
107 (n 2) 7.
108 European Commission document Directive on AIFM: Frequently Asked Questions (29 April 2009) 4
<http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/211&format=HTML&aged=0&language
=EN&guiLanguage=fr> (28 February 2010).
109 (n 43) 2.
110 The EVCA suggestion is €1 billion; this is unrealistic and may be too high a tide line for private equity
firms to skim under, a result that is not desired by the Commission.
111 (n 56).
112 N Pettifer ‗We do have a Clear Plan‘ (2009) 27 (7) International Financial Law Review 16-17 in which
AIMA stated that ‗manager authorisation protects investors and transparency protects markets… what more
could you want‘. This approach was criticised as being unrealistic.
113 N Chan and others ‗Systemic risk in Hedge Funds‘ in Mark Carey and René M Stulz (eds) The Risks of
Financial Institutions (University of Chicago Press Chicago and London 2006).
85
[2010] COLR
often identified as one of the most notable risks to financial stability. 114 Therefore existing
leverage restrictions provided in the Directive as previously discussed are a crucial
component of targeting systemic risk and need to remain and apply, in tandem with revised
exemption thresholds.
M
CONCLUSION
It must be remembered that, in the aftermath of the recent financial crisis and scandals,115
investors and actors in the financial markets are looking for more regulation, and it has been
established the Proposal achieves this. However it is imperative that an EU regime for AIF
remains flexible enough to make it competitive vis-à-vis offshore centers and the
international nature of the alternatives industry. Yet, as discussed, certain aspects of the
Directive fall short of realising essential international facets of the AIF industry.
There are aspects of the Directive clearly aimed at changing the very structure of the
industry, for example the introduction of an EU regulated, yet universally liable depository.
The passport created in reward for compliance with the Directive has potential and should be
welcomed. However on this innovation the Commission struck the wrong cord past
harmonisation and instead paved the way for a Europe in which investors, managers and
custodians are confined to a life within its borders, or outside them. Such possibly
unintended consequences of the Directive can be avoided if the opinions, arguments, and
recommendations of all the relevant actors, as illustrated throughout the instant discussion,
will be taken into account during the review of the legislation currently underway.
The Directive has been hailed by some of its most trenchant critics as the perfect
regulatory storm – born out of economic crisis and considerable political will yet drawn from
the slightest of consultation with the relevant actors. It is equally recognised that ‗an open
single market in fund management must be a major opportunity for Europe and we must all
do our bit to ensure we deliver the best possible result for EU investors and for the future of
the EU funds industry.‘116 However this will only be achieved if the relevant actors in the
AIF industry seize the eye in the storm and engage with EU Parliamentarians throughout the
political review of the Directive. It may be the last chance saloon to securing appropriate
regulation for the industry, not just in Europe, but also around the globe.
114 European Fund and Asset Management Association (‗EFAMA‘) ‗Response to the Commission‘s
Consultation
on
Hedge
Funds‘
<http://www.efama.org/index.php?option=com_docman&task=doc_details&gid=946&Itemid=-99>
(28
February 2010).
115 (n 7) 26; The ‗Madoff‘ case in particular has illustrated the importance of better controlling the quality of
processes and functions in the case of funds, funds of funds and delegations of responsibilities.
116 The UK Financial Services Secretary to the Treasury ‗AIMA Breakfast Address on the Alternate
Investment
Fund
Management
Directive‘
(7
July
2009)
<http://www.hmtreasury.gov.uk/speech_fsst_070709.htm> (28 February 2010).
86
[2010] COLR
DESIGNING CLIMATE CHANGE LAW: A COMPARATIVE ANALYSIS OF THE
US AND THE EU
Glen Wright *
ABSTRACT
As evidence of anthropogenic climate change mounts there is a growing concern with, and a
pressing need for, legal regimes to curtail the problem. This concern culminated in the
recent climate change conference in Copenhagen. The US and the EU, as two of the largest
contributors to the problem and as entities wielding significant political power, have a
pivotal role to play in the creation and development of these regimes. With this in mind, this
paper provides a brief survey of the measures taken in the respective jurisdictions to date to
combat climate change. Starting with the Kyoto Protocol, the divergent approaches of the
two jurisdictions will be noted and the effectiveness of the two regimes discussed, both in
terms of emissions reduction and intangible benefits that have arisen. Some „best practice‟
principles for the design of climate change law will be discerned, suggesting ways in which
future climate change law can be more effective.
A
INTRODUCTION
The Intergovernmental Panel on Climate Change (‗IPCC‘)1 has stated that ‗warming of the
climate system is unequivocal.‘2 According to the IPCC
Global Greenhouse Gas (GHG) emissions due to human activities have grown
since pre-industrial times, with an increase of 70% between 1970 and 2004…
Most of the observed increase in global average temperatures since the mid-20th
century is very likely due to the observed increase in anthropogenic GHG
concentrations.3
Both the US4 and the EU5 agree with this statement, repeating it almost verbatim. In addition,
most scientists,6 including the national academies of science of many major industrialized
nations,7 are also convinced of the validity of the science of climate change. Thus, most of
*Final year LLB student in the University of Nottingham.
1
‗The IPCC is a scientific intergovernmental body set up by the World Meteorological Organization (WMO)
and by the United Nations Environment Programme (UNEP).‘ It is mandated to ‗provide the decision-makers
and others interested in climate change with an objective source of information about climate change.‘
<http://www1.ipcc.ch/about/index.htm> (27 February 2010).
2
IPCC Climate Change 2007: Synthesis Report, Summary for Policymakers.
<http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf> (27 February 2010).
3
ibid.
4
‗Most of the warming in recent decades is very likely the result of human activities.‘ US Environmental
Protection Agency: Climate Change Basic Information
<http://www.epa.gov/climatechange/basicinfo.html> (27 February 2010).
5
‗The warming of the climate system is unequivocal... Most of the warming that has occurred over the last 50
years is very likely to have been caused by human activities.‘ ––‗Climate Change‘ EUROPA
<http://ec.EUROPA.eu/environment/climat/home_en.htm> (27 February 2010).
6
Doran and Zimmerman ‗Examining the Scientific Consensus on Climate Change‘ (2009) 90(3) Eos,
Transactions American Geophysical Union.
7
Joint Science Academies, Climate Change Adaptation and the Transition to a Low Carbon Society Royal
Society, 06/2008.
[2010] COLR
the world is now at an agreement and, as a starting point, the two entities which are the
subject of this paper are in agreement as to the science of global warming.
According to the UN, the US currently contributes 22.2% of global Carbon Dioxide
emissions8 and the EU contributes 14.7%.9 While these figures were collected in 2004 and
are now somewhat inaccurate,10 they certainly indicate the large scale of the contribution of
the US and the EU.
The US, as a ‗superpower‘,11 and the EU, which bears, or may come to bear, the same
12
title, are entities of similar economic size,13 and hold a great deal of influence in the
international political sphere; influence which could be wielded in the battle against global
warming. Thus, it is difficult to understate the importance of these two entities both acting
and leading in the battle against climate change.
It has been noted that both the US and the EU are in agreement as regards science,
that both contribute significantly to CO2 emissions, and that both are entities of substantial
power. This paper, then, will provide a broad survey of the regimes for abating climate
change in both the US and the EU, federally and regionally, focusing on legally binding and
compulsory laws, schemes and policies. It will critically assess which of the operational
measures, if any, have been effective in reducing emissions and providing other benefits, and
assess, compare and evaluate the design of the measures, with a view to determining the
potential for, and likelihood of, their success. This analysis will suggest the best design
practice for future climate change laws and policies. Finally, this paper will provide a brief
insight into the future of climate change regulation.
B
1
FEDERAL LEVEL MEASURES
The EU
A fundamental difference between the regulatory regimes of the US and the EU is the Kyoto
protocol.14 The US signed,15 but did not ratify,16 the protocol. As opposed to this is the EU,
8
The Official UN Site for the MDG Indicators: Carbon dioxide emissions (CO2), thousand metric tons of CO2
(CDIAC) <http://mdgs.un.org/unsd/mdg/SeriesDetail.aspx?srid=749&crid> (27 February 2010).
9
ibid.
10
This is largely due to the vast increase in China‘s emissions over the ensuing years. Sources now suggest that
China has in fact superseded the US as the largest emitter of CO2. Netherlands Environment Agency Climate
Change Dossiers ‗China now no. 1 in CO2 emissions; USA in second position‘
<http://www.pbl.nl/en/news/pressreleases/2007/20070619Chinanowno1inCO2emissionsUSAinsecondposition.h
tml> (27 February 2010).
11
Though not the only power, as it operates in ‗a strange hybrid [international political system], a uni-multipolar
system with one superpower and several major powers.‘ Huntington ‗The Lonely Superpower‘ (1999) 78(2)
Foreign Affairs 35.
12
M Leonard ‗Europe: the New Superpower‘ The Irish Times (Dublin Ireland 18 February 2005); P Khanna The
Second World; Empires and Influence in the New Global Order (Random House 2008).
13
Posen ‗Fleeting Equality: The Relative Size of the US and EU Economies to 2020‘ [2004] US-Europe
Analysis Series (The Brookings Institution) <http://www.brookings.edu/fp/cuse/analysis/posen20040901.pdf>
(27 February 2010).
14
Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December
1997, entered into force 16 February 2005).
15
Then Vice-President Al Gore signed the Protocol, but indicated that ratification would not be sought. ––
‗Clinton Hails Global Warming Pact, But early Senate ratification is unlikely‘ CNN
<http://edition.cnn.com/ALLPOLITICS/1997/12/11/kyoto/> (27 February 2010).
16
The US Senate passed (by a unanimous 95–0 vote) a resolution stating that ‗the United States should not be a
signatory to any protocol‘ that did not mandate emissions caps for developing nations and that may harm the US
88
[2010] COLR
whose then 15 Member States,17 each ratified the protocol. The Kyoto protocol commits each
state to a reduction in GHG emissions against 1990-levels by 2012, but the EU decided to
meet its cuts collectively; an 8% reduction in GHG emissions across all Member States.18
(a)
GHG Emission Allowance Trading
The EU‘s primary means19 of meeting its reduction target is the GHG emissions trading
scheme.20 This came into effect in January 2005 and includes a number of installations and
activities,21 accounting for 40% of the EU‘s total emissions.22 This makes it the ‗largest
multi-country, multi-sector Greenhouse Gas emission trading scheme world-wide.‘23 It is a
‗cap-and-trade‘ system, setting a maximum level of emissions and allowing parties to trade in
allowances. The first trading period (‗phase one‘) included all then 15 Member States and set
caps based on National Action Plans (‗NAPs‘), which were reviewed by the European
Commission.
Phase two is ‗crucial‘ as it coincides with the Kyoto compliance period. 24 Emissions
caps have been reduced by 6.5% overall as compared to the phase one caps, in order to
ensure Kyoto compliance.25 In addition, the scope of the Emissions Trading Scheme (‗ETS‘)
has been broadened to accommodate joint implementation and the clean development
mechanism,26 two of the ‗flexibility mechanisms‘ of the Kyoto Protocol, and include the
participation of three non-EEA Member States.27
economy. Byrd-Hagel Resolution, Senate Res 98 (105 Cong 1st Session) <http://www.nationalcenter.org/
KyotoSenate.html> (27 February 2010).
17
The fifteen Member States were Belgium, France, Italy, Luxembourg, Netherlands, Germany, Denmark,
Ireland, United Kingdom, Greece, Portugal, Spain, Austria, Finland and Sweden.
18
––„EU-15
on
target
for
Kyoto,
despite
mixed
performances‘
EEA
Pressroom
<http://www.eea.europa.eu/pressroom/newsreleases/eu-15-on-target-for-kyoto-despite-mixed-performances>
(27 February 2010).
19
Ellerman and Buchner ‗The European Union Emissions Trading Scheme: Origins, Allocation, and Early
Results, Review of Environmental Economics and Policy‘ (2007) Review of Environmental Economics and
Policy 66.
20
Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance
trading within the Community and amending Council Directive 96/61/EC.
21
The scheme covers ‗above certain capacity thresholds, power stations and other combustion plants, oil
refineries, coke ovens, iron and steel plants and factories making cement, glass, lime, bricks, ceramics, pulp,
paper and board.‘ MEMO/08/35 Questions and Answers on the Commission's proposal to revise the EU
Emissions Trading System.
22
ibid.
23
––‗Emission
Trading
System
(EU
ETS)‘
EUROPA
<http://ec.europa.eu/environment/climat/emission/index_en.htm> (27 February 2010); Ellerman and Buchner (n
19).
24
MEMO/08/35 (n 21).
25
‗...the Commission has capped national emissions from EU ETS sectors at an average of around 6.5% below
2005 levels.‘ ibid.
26
Directive 2004/101/EC of 27 October 2004 amending Directive 2003/87/EC establishing a scheme for
greenhouse gas emission allowance trading within the Community, in respect of the Kyoto Protocol's project
mechanisms.
27
––‗Iceland, Norway, Liechtenstein to join EU emissions trading system‘
EU business
<http://www.eubusiness.com/Environ/1193418125.05> (27 February 2010).
89
[2010] COLR
(b)
Effectiveness
When assessing the effectiveness of the EU scheme, it is convenient to analyse the data in
terms of the phases of operation of the ETS.
The EU itself acknowledged that, as the first period of trade under the ETS, phase one
was a ‗learning by doing‘ exercise,28 and noted a number of issues with the system. The main
criticism levelled at,29 and addressed by, the EU was that ‗the environmental benefit of the
first phase may [have been] limited due to excessive allocation of allowances by some
Member States.‘30 This resulted from the NAP procedure; there being no harmonised rules
for establishing caps and allowances, most States did not set a cap sufficiently low as to
achieve an emissions reduction.31 When verified emissions data was published, this excess
became clear, market prices dropped significantly.32 This ‗underlin[es] the need for verified
data, [and shows] that greater harmonisation within the EU ETS is imperative‘ for the
effective operation of the ETS.33 Despite these issues, the EU remained confident that the
ETS ‗proved that trading in greenhouse gas emissions works‘34 and that the ETS made crucial
infrastructural and methodological advancements.
The figures show that the EU increased its overall emissions by 1.9% in phase one,35
but that only a 0.68% increase occurred between 2006-7, well below the 1.9% increase in
GDP,36 which suggests that the system started to become effectual. Sixty-eight facilities
failed to surrender sufficient allocations to cover their emissions, but these only accounted for
an insignificant amount of total allocations (<0.08%).37
The slight increase in emissions in phase one ‗underline[d] the need for the tighter
emission caps.‘38 This need was met by the Commission who, in considering whether to
adopt Member States‘ NAPs as submitted or to amend them, adopted decisions designed to
send a ‗strong signal‘ of the EU‘s commitment to Kyoto39 and ‗iron out‘ the disparities
caused by the lack of a harmonised NAP procedure. 40 This resulted in a lowering of the
28
MEMO/08/35 (n 21).
Climate Action Network Europe National Allocation Plans 2005-7: Do They Deliver? Key Lessons For Phase
II of the EU ETS (2006).
30
MEMO/08/35 (n 21).
31
According to the National Allocation Plans 2005-7 (n 29), only 2 States, the UK and Germany, actually set a
cap which resulted in an emissions cut as compared to 1990 levels.
32
MEMO/08/35 (n 21).
33
ibid.
34
ibid.
35
––‗ Emissions trading: 2007 verified emissions from EU ETS businesses‘ EUROPA
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/787> (27 February 2010).
36
ibid.
37
ibid.
38
ibid.
39
––‗ Emissions trading: Commission adopts decision on Italy's national allocation plan for 2008-2012‘
EUROPA
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/667&format=HTML&aged=0%3Cuage=EN&
guiLanguage=en> (27 February 2010).
40
‗The Commission is assessing all national plans in a consistent way to ensure equal treatment of Member
States.‘ ––‗Emissions trading: Commission decides on second set of national allocation plans for the 2008-2012
trading
period‘
EUROPA
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/51&format=HTML&aged=0&language=EN>
(27 February 2010).
29
90
[2010] COLR
proposed cap and the application of a more stringent target in a number of cases, 41 sometimes
involving a very substantial reduction.42
It will not be known for sure whether these decisions have had the desired impact on
emissions until verified data is submitted following the end of phase two in 2012. However,
some pessimistic preliminary assessments have been made. One such initial assessment
concluded that there is a significant disparity between States‘ quoted business as usual
(‗BAU‘) scenario and the BAU scenario as independently assessed, thus leading, once again,
to NAPs with higher allowance allocations than would be required for States to effect
emissions reductions.43 Despite some uncertainty as to the correctness of these results, 44 the
conclusion that ‗the level of a number of caps is not ambitious enough to put Member States
on a path to reach their Kyoto target without Government purchase of JI/CDM credits‘ seems
to stand. On the other hand, the inclusion of the CDM itself may become a problem; the
investment in CDM products could risk causing an ‗oversupply of tradable CO2 emissions...
resulting in a significant downside price risk.‘45 Other sources suggest that, as in phase one,
the allocation system could result in windfalls, especially in the power sector.46
Most recently, carbon prices have once again dropped to a very low level, 47 which
raises similar concerns as to the effectiveness of the scheme raised in phase one. While it is
clear that the jury is still out on the efficacy of phase two, it is equally clear that the ‗learning
by doing‘ has not yet ended, and that significant challenges to the effectiveness of the ETS
remain.
(c)
The Future of the EU ETS: Phase Three
The Commission have acknowledged that the NAP approach has ‗generated significant
differences in allocation rules, creating an incentive for each Member State to favour its own
industry, and has led to great complexity.‘48 Thus, in January 2008, the Commission
proposed an amending directive49 as part of the EU Climate and Energy Package, which was
41
ibid.
An example is Estonia, whose NAP proposed cap was reduced by nearly 48%. ––‗Emissions trading:
Commission adopts decision on Estonia's national allocation plan for 2008-2012‘ EUROPA
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/613> (27 February 2010).
43
Ecofys Initial Assessment of National Allocation Plans For Phase II of the EU Emission Trading Scheme
<http://www.ecofys.com/com/publications/documents/Ecofys_Summary_InitialNAP2_Assessment.pdf>
(27
February 2010).
44
ibid. Note that this assessment was conducted based on the NAPs as they were pre-approval. The
Commission, MEMO/08/35 (n 21), reduced the caps for phase two by 6.5%. The assessment suggests a 2.5%
surplus in allowances when based on the independent BAU analysis.
45
––‗CER imports pose risk of EUA oversupply in EU Emissions Trading Scheme Phase II‘ Wood Mackenzie
Press
Releases:
Energy
<
http://www.woodmacresearch.com/cgibin/corp/portal/corp/corpPressDetail.jsp?searchStr=concludes&oid=872278&origSessionID=@@@@15119707
31.1262177774@@@@&origEngineID=cccdadejeleleklcflgcegjdffjdgih.0> (27 February 2010).
46
Point Carbon EU ETS Phase II – The Potential and Scale iof Windfall Profits in the Power Sector,
Commissioned
by
WWF
<http://assets.panda.org/downloads/point_carbon_wwf_windfall_profits_mar08_final_report_1.pdf> (3 March
2010).
47
––‗EU
carbon
price
hits
record
low
for
2008-12‘
Reuters
<http://www.reuters.com/article/idUSTRE5123IJ20090203> (27 February 2010).
48
MEMO/08/35 (n 21).
49
COM(2008) 16 final 2008/0013 (COD) Proposal for a DIRECTIVE amending Directive 2003/87/EC so as to
improve and extend the greenhouse gas emission allowance trading system of the Community.
42
91
[2010] COLR
subsequently adopted in December 2008.50 This directive will come into force for the third
phase of the ETS and will make considerable changes designed to finally enable the ETS to
be a fully functioning carbon market. These changes include a longer trading period,
replacement of the NAPs caps with an EU (federal) level cap, reducing the number of free
allocations and increasing the level of auctioning.51
In late 2006 it was proposed that aviation should be included in the ETS.52 After much
consultation53 and negotiation,54 a directive was passed in November 2008 to effect this
proposal.55
2
The US
The US has not signed the Kyoto Protocol56 and recent administrations have largely relied on
voluntary initiatives to reduce the growth of greenhouse gas emissions57 − of the fifty or so
measures detailed in the US‘s Fourth Climate Action Report,58 only seven were described as
‗regulatory‘.59 US measures include the Energy Policy Act of 2005 which, ‗in addition to
R&D programs, has a number of provisions designed to accelerate market penetration of
advanced, clean-energy technologies‘,60 and the Renewable Fuel Standard61 which is
‗intended to double the amount of renewable fuel usage by 2012.‘62 The Energy
Independence and Security Act of 2007 does include provisions specifically on climate
change, including requirements for the use of renewable fuels, 63 and the establishment of an
office64 to implement research on mitigating the causes and addressing the effects of climate
change on transportation.65 However, these provisions are transport-centric and do not pertain
to wider climate change related regulation.
50
––‗Climate change: Commission welcomes final adoption of Europe's climate and energy package‘ EUROPA
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1998> (27 February 2010).
51
See COM(2008) (n 49).
52
COM(2006) 818 final 2006/0304 (COD) Proposal for a directive amending Directive 2003/87/EC so as to
include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community.
53
––‗Climate change: public consultation underlines support for tackling aviation‘s contribution‘ EUROPA
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/05/1024&format=HTML&aged=1&language=EN
&guiLanguage=fr> (27 February 2010).
54
For passage of the directive generally see 2006/0304 (COD), Monitoring of the decision-making process
between institutions <http://ec.EUROPA.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=195168#383040>
(27 February 2010).
55
Directive 2008/101/EC of 19 November 2008 amending Directive 2003/87/EC so as to include aviation
activities in the scheme for greenhouse gas emission allowance trading within the Community.
56
Byrd-Hagel Resolution (n 16).
57
Congressional Research Service Report prepared for Members and Committees of Congress
Climate Change: Federal Laws and Policies Related to Greenhouse Gas Reductions
<http://www.cnie.org/NLE/CRSreports/06Mar/RL31931.pdf> (27 February 2010).
58
Bureau of oceans and International Environmental and Scientific Affairs Fourth Climate Action Report to the
UN Framework Convention on Climate Change 2006 <http://www.state.gov/g/oes/rls/rpts/car/> (3 March
2010).
59
Congressional Research Service Report (n 57).
60
Bureau of Oceans Report (n 58). Though these provisions are only ‗indirectly related to greenhouse gas
emissions‘ ibid.
61
Under the Energy Policy Act of 2005, the Environmental Protection Agency is responsible for promulgating
regulations to ensure that gasoline sold in the United States contains a specific volume of renewable fuel.
62
Bureau of Oceans Report (n 58).
63
Energy Independence and Security Act of 2007 (US) s 202.
64
Office of Climate Change and Environment in the Department of Transportation.
65
ibid.
92
[2010] COLR
The lack of federal legislation comes at the expense of concerted efforts by a number
of Congress persons to effect such legislation. A number of bills have been introduced into
Congress, attempting various levels of climate change regulation, and reaching equally varied
levels of the legislative process. In the 110th Congress alone there were ‗more than 235 bills,
resolutions, and amendments specifically addressing global climate change and greenhouse
gas emissions‘,66 including no fewer than 10 proposals for an economy-wide cap-and-trade
system, most of them aiming for either a reduction to 1990 levels by 202067 or a percentage
reduction on 2005 levels by 2020.68 None of these comprehensive cap-and-trade bills were
passed.69
The failure of the US government to take a robust and vigorous approach to climate
change regulation spurred the environmental movement into action, leading a number of
cases to the Supreme Court in the hope of strengthening action on climate change. These
cases have included claims of public nuisance70 and arguments against States being
preempted from regulating to stricter standards than those promulgated by the Federal
Government.71 Perhaps the most important, as a victory for environmental activists, and wellknown of these cases is Massachusetts v EPA.72 In this case, the Supreme Court held that the
petitioners had standing,73 that the EPA has the authority to regulate tailpipe emissions of
carbon dioxide and, finally, that the EPA‘s rationale for not regulating such emissions was
inadequate. It was held that it must be reviewed and either a new, reasonable rationale for
inaction be articulated, or regulation implemented. These challenges, however, have achieved
mixed results and have not necessarily been favorable to the furtherance of climate change
regulation.74 This strategy of litigation can be seen to be an ineffective substitute for a Federal
program of regulation, where litigation would be a mechanism of enforcement, rather than a
means of attempting to incorporate climate change into existing legal enactments and
doctrine.
66
––‗Climate Action in Congress, US Climate Change Legislation‘ Pew Center on Global Climate Change
<http://www.pewclimate.org/what_s_being_done/in_the_congress> (27 February 2010).
67
ibid.
68
ibid.
69
For a brief discussion of the politics see Cohen ‗Is the latest climate change bill getting warmer? LiebermanWarner proposal is a centrist compromise looking for bipartisan support‘, The Wall Street Journal Digital
Network: Market Watch <http://www.marketwatch.com/story/is-the-latest-climate-change-bill-getting-warmer>
(28 February 2010).
70
California v General Motors Corp 2007 WL 2726871 (ND Cal 2007); Connecticut v American Electric
Power Company 406 F Supp 2d 265 (SDNY 2005).
71
Central Valley Chrysler-Jeep v Witherspoon No CV-04-6663 (ED Cal 2006); Center for Biological Diversity
v NHTSA No 06-71891 (9th Cir filed 12 April 2006).
72
Massachusetts v Environmental Protection Agency 549 US 4917 (2007).
73
States: California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York,
Oregon, Rhode Island, Vermont and Washington; Cities: New York, Baltimore, and Washington DC; the
territory of American Samoa; Organizations: Center for Biological Diversity, Center for Food Safety,
Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth,
Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources
Defense Council, Sierra Club, Union of Concerned Scientists, and US Public Interest Research Group.
74
In the nuisance cases (n 70), the cases failed on the ground that the question of CO2 emissions is of a political
nature and is properly decided by the legislation. The pre-emption cases are, as yet, undecided. In Central Valley
Chrysler-Jeep (n 71), proceedings were stayed pending a decision in Massachusetts v Environmental Protection
Agency (n 72). Presumably, given the outcome in that case, the State will not be held to be pre-empted.
93
[2010] COLR
(a)
Effectiveness
The lack of a clear cause and effect link (such as linking the cap in the EU system with
reductions in emissions), owing to the indirect nature of the provisions, makes determining
whether any emissions cuts made were a result of Federal measures inherently difficult.
Further difficulty arises from the lack of availability of statistics after the enactment of the
2007 Act. However, there are a number of self-evident observations that may be said to
impact on the effectiveness of the US legal effort. The main criticism of the US regime is
that there is a lack of a broad, overarching and cohesive policy aimed at reducing emissions.
This has resulted in piecemeal advancement of climate regulation and the spread of climaterelated provisions across a number of acts. A further criticism is that there are few measures
of a compulsory nature. While encouraging technological advancements through a freemarket system may be an admirable goal, industry and businesses may be reluctant to invest
in unproven technologies. Measuring how effective such voluntary measures are is inherently
difficult and they have, thus far, only been ‗subject to quite limited evaluation.‘75 Where such
evaluation exists, it tends to suggest that the impact of voluntary programs is very small.76
Reports suggest that the total US emissions had increased by 15% on 1990 levels by
77
2006, encompassing a 1.1% drop in emissions between 2005-200678 but a 1.4% increase
between 2006-2007.79 The Bush administration‘s goal had been to focus on the reduction of
carbon intensity,80 81 yet the 0.6% decrease in carbon intensity between 2006-2007 was one of
the smallest decreases yet to be recorded.82
The Energy Information Administration (‗EIA‘) predicts decreases of 1.8% and 1.1%
between 2007-2008 and 2008-2009 respectively, but a 10% increase from 2009 levels by
2030.83 While these predictions are lower than were expected,84 it is clear that the figures do
not represent the kinds of emissions reductions thought to be needed to avert the worst effects
of climate change.
These figures, despite some uncertainty, seem to show that the current Federal climate
change regime has failed to effectively reduce emissions. Furthermore, although regulatory
75
Pizer Morgenstern and Shih Resources for the Future Discussion Paper 08-13 Evaluating Voluntary Climate
Programs in the United States
<http://www.rff.org/rff/documents/rff-dp-08-13.pdf> (28 February 2010).
76
For example, after subjecting the US EPA‘s ‗Climate Wise‘ and the US Department of Energy‘s ‗Voluntary
Reporting of Greenhouse Gases‘ programs to rigorous statistical analysis, Pizer et al, ibid, conclude:
In contrast to the claims of relatively large emissions reductions reported by the sponsoring
agencies, our analysis suggests that more modest reductions are attributable to the programs
studied. Overall, we find that that the effects of [the programs] on fuel and electricity expenditures
were no more than 10 percent and probably less than 5 percent. We found no evidence of
reductions in direct emissions from fossil fuels attributable to the voluntary programs.
77
US Department of Energy Office of integrated Analysis and Forecasting Annual Energy Review 2007
<http://www.eia.doe.gov/emeu/aer/contents.html> (3 March 2010).
78
US Environmental Protection Agency Inventory of US Greenhouse Gas Emissions and Sinks: 1990-2006
Figure ES-2 p ES-4 <http://www.epa.gov/climatechange/emissions/downloads/08_CR.pdf> (28 February 2010).
79
Yacobucci and Parker US Department of Energy: Energy Information Administration Emissions of
Greenhouse
Gases
in
the
United
States
2007
1
<ftp://ftp.eia.doe.gov/pub/oiaf/1605/cdrom/pdf/ggrpt/057307.pdf> (28 February 2010).
80
Measured as metric tons carbon dioxide equivalent emitted per million dollars of gross domestic product. ibid.
81
––‗Analysis of President Bush's Climate Change Plan‘ Pew Center on Global Climate Change
<http://www.pewclimate.org/policy_center/analyses/response_bushpolicy.cfm> (28 February 2010).
82
US Department of Energy: Emissions of Greenhouse Gases in the United States 2007 (n 79).
83
Based on US Department of Energy: Energy Information Administration Annual Energy Outlook 2009 Early
Release with Projections to 2030 <http://www.eia.doe.gov/oiaf/aeo/pdf/0383(2009).pdf> (28 February 2010).
84
––‗US
carbon
output
slower
than
thought
by
2030:
EIA‘
Reuters
<http://www.reuters.com/article/idUSTRE4BG4HW20081217> (28 February 2010).
94
[2010] COLR
measures are only a ‗small subset‘ of the US effort, it has been said that they ‗account for a
large share of greenhouse gas emission reductions achieved over the past decade-and-ahalf.‘85 Thus it is likely that the figures would be worse if not for the modest regulatory
efforts made, and that the problem lies in the heavy reliance on technology innovation
incentives and voluntary, non-compulsory programs.
C
1
REGIONAL MEASURES
The EU
Under the pseudo-federalist EU system, each Member State is responsible directly for
reducing its emissions to meet its Kyoto target. This has resulted in varied measures and
policies across Member States,86 including the promotion of energy efficiency and renewable
energy sources, and changes in tax provisions and educational programs, such as promoting
cycling and walking. Even looking beyond Kyoto, some States are moving toward further,
and more stringent, national measures to curb climate change.
(a)
The UK Climate Change Act 2008
It is in this regard that the UK is worthy of particular consideration. In November 2008, the
UK parliament passed the Climate Change Act,87 heralded as the ‗world‘s first long term
legally binding framework to tackle the dangers of climate change‘.88 The Act places a duty
on the Secretary of State ‗to ensure that the net UK carbon account for the year 2050 is at
least 80% lower than the 1990 baseline.‘89 The Secretary of State must set carbon budgets for
five year periods with a view to meeting this overall goal; 90 each budget must represent a
decrease in emissions of at least 26% on 1990 levels.91 The Committee on Climate Change92
has now published its first recommendations,93 for the first set of budget periods,94 ahead of
the Secretary of State‘s own deadline of June 2009.95 The Committee proposed two
recommendations for each period; an ‗interim‘ budget, for emissions reductions pending an
international agreement, and an ‗intended‘ budget, with an increase in reductions in the event
of such an agreement. The intended budgets represent an emissions reduction of 42% in
2020, relative to 1990.96
85
US Department of Energy: Emissions of Greenhouse Gases in the United States 2007 (n 79).
For actions of Member States generally, see ––‗Greenhouse gas monitoring and reporting: Country profiles,
Climate Change‘ EUROPA <http://ec.europa.eu/environment/climat/gge_country.htm> (28 February 2010).
87
Climate Change Act 2008 (UK).
88
Defra website <http://www.defra.gov.uk/ENVIRONMENT/climatechange/uk/legislation/> (28 February
2010).
89
Climate Change Act (n 87).
90
ibid s 4.
91
ibid s 5.
92
Established under the Climate Change Act, Part two. The Committee is charged with advising the Secretary
of State on the level of the carbon budget for each period.
93
Committee on Climate Change Building a low-carbon economy – The UK‟s contribution to tackling climate
change <http://www.theccc.org.uk/reports/building-a-low-carbon-economy> (28 February 2010).
94
Climate Change Act (n 87) s 4(2)(a).
95
ibid.
96
Committee on Climate Change (n 93).
86
95
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Given that the UK Act is new, it is impossible to determine any effect thus far.
However, what is clear is that the UK Act is a strong, legally binding commitment to
reducing emissions.
2
The US
As well as inviting litigation, the inaction of the Federal Government may well have
prompted the apparent enthusiasm of States, cities, and even Mayors 97, 98 of the US, to take
action on climate change. In the absence of strong federal measures, it appears that this array
of regional developments will be responsible for reducing the level of US emissions. A
number of States have now enacted legislation which expressly seeks to cap emissions at a
given level, some have entered into regional climate change agreements, and many have
initiated climate action plans.99
(a)
State-Level Targets
The States of California, Connecticut, Maine, Massachusetts, Minnesota, New Jersey,
Hawaii, Oregon and Washington100 have all taken the legislative route, giving legal weight to
emissions reduction targets; five other State Governors have issued executive orders to a
similar effect.101
While it is clear that these legislative targets send a strong message, their success will
depend on the actions taken in their pursuit. To this end eight of the nine States with
legislative targets have acceded to one of the regional arrangements discussed below –
Hawaii being the only State not to have done so. 102 Thus, they have a State legislative target,
as well as a target under an intergovernmental agreement. With both of these in place, it is
clear that the curbing of global warming has significant legal and political weight. Of the five
97
The US Mayors Climate Protection Agreement (As endorsed by the 73rd Annual US Conference of Mayors
meeting Chicago 2005) urges the Federal Government to ‗enact policies and programs to meet or beat the target
of reducing global warming pollution levels to 7 percent below 1990 levels by 2012;‘ calls on Congress to ‗pass
bipartisan greenhouse gas reduction legislation that includes clear timetables and emissions limits, and a
flexible, market-based system of tradable allowances among emitting industries;‘ and states that ‗[w]e will strive
to meet or exceed Kyoto Protocol targets for reducing global warming pollution by taking actions in our own
operations
and
communities.‘
Available
at
<http://www.usmayors.org/climateprotection/documents/mcpAgreement.pdf> (28 February 2010).
98
As of 28 February 2010, 1017 mayors from all 50 States, the District of Columbia and Puerto Rico,
representing 86,652,633 citizens, have signed the list. See List of Participating Mayors Climate Protection
Center Website <http://www.usmayors.org/climateprotection/list.asp> (28 February 2010).
99
As of August 2008, 32 States had implemented climate action plans; six were in the process of formulating
plans.
Climate Change Action Plan, State Planning and Measurement, EPA Website,
<http://www.epa.gov/climatechange/wycd/stateandlovalgov/state_planning.html> (2 November 2009).
100
Global Warming Solutions Act 2006; House Bill 5600 2008; Act to Provide Leadership in Addressing the
Threat of Climate Change 2003; Global Warming Solutions Act 2008; Next Generation Energy Act 2007;
Global Warming Response Act 2007; Global Warming Solutions Act 2007; House Bill 3543 2007; Engrossed
Substitute Senate Bill 6001 2007.
101
Arizona (Executive Order 2006-13); Colorado (Executive Order D-004-08); New Mexico (Executive Order
2005-033); Florida (Executive Order 07-127); Virginia (Executive Order 59).
102
The per capita emissions rate in Hawaii is less than half that of the US generally. Alber (ed) Inventory of
Hawaii greenhouse gas Emissions: Estimates for 1990 (State of Hawaii, Dept. of Business, Economic
Development, and Tourism, Energy, Resources, and Technology Division, and Dept. of Health, Clean Air
Branch 1997).
96
[2010] COLR
States issuing executive orders, two are part of a regional agreement. 103 Thus in total, 10
States have given ‗dual weight‘ to the goal of reducing emissions. The remaining three States
with targets, but no accession to a regional agreement, all have climate action plans.104
D
1
REGIONAL AGREEMENTS
The Regional Greenhouse Gas Initiative of the Northeastern States („RGGI‟)
The RGGI is a cap and trade system, participated in by 10 States,105 and is the ‗first
mandatory cap-and-trade program in the United States for carbon dioxide‘106 and covers
certain ‗fossil fuel fired‘ power generation plants107 (approximately 225 in total).108 It begins
by capping emissions from included facilities at 2009 levels initially, 109 and then reducing
these emissions 10% by 2018;110 meaning a 2.5% annual decrease in emissions for 20152018. The RGGI implemented an auctioning system of allocation from the outset. This was
likely made easier by the fact that the target at the time of the first auction, as stated above,
was merely to cap emissions, so many businesses did not need to buy allowances as their
emissions were not going to increase.111 That said, at the first auction of allowances, held in
September 2008,112 demand for allowances exceeded supply by more than four to one.113 The
average price of an allowance was $2.77.114 The second auction, held in December 2008,115
created a demand of 3.5 to 1, with the average price of allowances increasing to $3.38.116
Procedurally the RGGI has taken a big step in ‗flawlessly‘ administering117 the
world‘s largest ever carbon auction118 and, with regards emissions reduction, it seems very
likely that the modest targets will be met, given that
103
The States are Arizona and New Mexico.
Pew
Center
on
Global
Climate
Change
List
of
All
State
Initiatives
<http://www.pewclimate.org/docUploads/AllStateInitiatives-01-27-09-a.pdf> (28 February 2010).
105
The participating states are Maine, New Hampshire, Vermont, Connecticut, New York, New Jersey,
Delaware, Massachusetts, Maryland, Rhode Island. The RGGI also has five observers: Pennsylvania, District of
Columbia, and the Canadian provinces of Québec, New Brunswick and Ontario.
106
Regional
Greenhouse
Gas
Initiative
Executive
Summary
<http://www.rggi.org/docs/RGGI_Executive_Summary.pdf> (28 February 2010).
107
ibid. The definition of ‗fossil fuelfired‘ varies
depending on when a unit commences operation. A unit that commences operation on or after
January 1, 2005 is considered fossil fuelfired provided that fossil fuel comprises more than 5% of
its total annual heat input. A unit that commenced operation prior to January 1, 2005 is considered
to be fossil fuelfired if fossil fuel comprises more than 50% of its total annual heat input.
108
ibid.
109
Regional Greenhouse Gas Initiative Overview of RGGI CO2 Budget Trading Program
<http://www.rggi.org/docs/program_summary_10_07.pdf> (28 February 2010).
110
ibid.
111
Regional Greenhouse Gas Initiative Reports on First Auction: ‗Prices were kept low, due in part to the high
cap level set by the RGGI. The cap of 188 million tons per year was above pollution levels from last year, so
only companies that are increasing emissions in the short term have high motivation to purchase permits.‘
112
Memorandum: Auction 1 Post Settlement Report Potomac Economics.
113
ibid.
114
ibid.
115
Regional Greenhouse Gas Initiative RGGI States‟ CO2 Auction Continues Strong Performance
<http://www.rggi.org/docs/Auction_2_Release_Final_08_12_19c.pdf> (28 February 2010).
116
ibid.
117
J Harvey quoted in ‗Designing and Implementing the First US Carbon Allowance Auction‘ [2008]
WorldEnergy.
104
97
[2010] COLR
[pre-compliance] auctions, combined with quarterly auctions to be held in the
first compliance period,...will ensure an ample opportunity for bidders to obtain
the [allowances] they will need for compliance across the entire 10-state
region.119
This success may, paradoxically, also reveal a fundamental failure of the RGGI, which
somewhat impacts its success as a scheme of emissions reduction – its unambitious reduction
target and it‘s under inclusiveness. If the targets are such that the auctions, while competitive,
allow all participants to meet their needs, and at a low allowance cost, then there is little
incentive to drastically reduce emissions. Furthermore, the RGGI only includes the power
sector, whereas the IPCC‘s reports, as noted above, would suggest that a stabilisation of
emissions across all sectors is desirable.120 Despite this criticism, it is true that the RGGI,
when contrasted with the lack of federal level regulation, is an important symbolic initiative,
as well as one that will achieve some reductions in emissions and will likely set an example
for other such initiatives and for the federal government. 121
Aside from these achievements, the RGGI is set to provide further benefits through
the participants‘ redistribution of the income received from allowance auctions. In a
Memorandum of Understanding,122 States have agreed to allocate a 25% minimum of
allowances to support consumer benefit programs.123 It is up to the individual States to decide
how to allocate the remaining 75%, but the ‗clear trend‘ is to dedicate all, or most, of the
proceeds to support consumer benefits or strategic energy purposes. This redistribution ‗leads
to lowering of electricity demand, reducing the overall compliance costs of the RGGI
program and its impact on electricity ratepayers.‘124
2
The Midwestern Greenhouse Gas Accord („MGGA‟)
The MGGA is an agreement to implement a cap and trade system, entered into by six States
and one Canadian province.125 The MGGA signatories agreed to ‗establish targets for GHG
emission reductions and time-frames‘ and complete development of ‗[a] proposed cap-andtrade agreement.‘126 The advisory group of the MGGA, charged with ‗making
118
F Salmon ‗Cap-and-Trade in the US‘ Portfolio <http://www.portfolio.com/views/blogs/marketmovers/2008/10/07/cap-and-trade-in-the-us/> (28 February 2010).
119
Regional Greenhouse Gas Initiative (n 115).
120
IPCC Climate Change 2007 (n 2).
121
Regional Greenhouse Gas Initiative Executive Summary (n 106): ‗Innovative aspects of RGGI design are
already being incorporated into congressional cap-and-trade proposals and may influence the future direction of
the EU ETS and other programs under development.‘
122
Memorandum of Understanding, 20 December 2005).
123
ibid. Consumer benefit or strategic energy purposes include the use of the allowances to
promote energy efficiency, to directly mitigate electricity ratepayer impacts, to promote renewable
or non-carbon-emitting energy technologies, to stimulate or reward investment in the development
of innovative carbon emissions abatement technologies with significant carbon reduction
potential, and/or to fund administration of this Program.
124
Regional Greenhouse Gas Initiative Overview of RGGI CO2 Budget Trading Program (n 109).
125
The States are Minnesota, Wisconsin, Illinois, Iowa, Michigan, Kansas, and the Canadian Province of
Manitoba. The MGGA also has three observers: Indiana, Ohio, and South Dakota.
126
The Midwestern Greenhouse Reduction Accord 2007 <http://www.midwesternaccord.org/news.html> (3
March 2010).
98
[2010] COLR
recommendations for the establishment of targets [a and cap and trade scheme]‘,127 made its
first preliminary recommendations in November 2008,128 followed by updated
recommendations in December 2008.129 Applying these recommendations, the MGGA would
require reductions of 15-25% below 2005130 levels by 2020 and 60-80% by 2050.131 The
scoping subgroup, whose suggestions are included in the preliminary recommendations,
‗recommends that the electric power sector, large industrial boilers and processes,
transportation fuels, and landfills be included in the cap-and-trade program,‘132 as well as
phasing in residential, and other emissions later on in the program.133, 134
A key observation of the MGGA135 is that the ‗government has the obligation to
establish a policy framework for reducing emissions.‘ It further notes the importance of
‗national leadership‘.136 Thus, as well as being a scheme that addresses emissions, the MGGA
also attempts to act as an example. The MGGA acquires further significance for being the
only regional agreement to include more than one US top-ten greenhouse gas emitter.137 The
advisory group for the MGGA recommended that the ‗distribution of allowance value be
limited to climate-related purposes,‘138 thus, hopefully, achieving similar benefits to those
mentioned above.139
3
The Western Climate Initiative („WCI‟)141
Much like the preceding two systems, the stated purpose of the WCI is to set an overall
regional emissions goal and reduce emissions by developing ‗a design for a regional marketbased multi-sector mechanism, such as a [cap and trade] program.‘142 The WCI also seeks to
promote ‗development and use of clean and renewable energy,‘ increase energy efficiency
and advocate ‗regional and national climate policies that reflect the needs and interests of
127
Premlinary
Recommendations
of
the
MGGA
Advisory
Group
<http://www.midwesternaccord.org/Meeting%20material%20pages/GHG-meeting-7/draft_rec_changes.pdf > (3
March 2010).
128
ibid.
129
ibid.
130
ibid.
131
ibid.
132
Minnesota Climate Change Advisory Group (MCCAG) Cap and trade Recommendations Undated part of
Scops Subgroup Conference Call Materials (6 February 2008).
133
ibid
.The MCCAG also recommends that the program include municipal waste incinerators, large
confined animal feeding operations, and other large agricultural operations where it is practical
to measure emissions beyond some de minimis level. The MCCAG favors the inclusion of fossil
fuel for residential and commercial use..
134
„The Advisory Group proposes to phase in heating fuels for residential, commercial and industrial buildings
in the second three-year compliance period of the program.‟ Preliminary recommendations, supra(n132).
135
Being the third order of business in the preamble, after the recognition of the effects of global warming and
the acknowledgement that action should be taken.
136
ibid.
137
Damassa „The Midwest Greenhouse Gas Accord by the Numbers‟ World Resources Institute
<http://www.wri.org/stories/2007/11/midwest-greenhouse-gas-accord-numbers> (28 February 2010).
138
„Including: 1) accelerating transformational investment; 2) mitigating transitional adverse impacts of the
program; and 3) addressing harmful impacts due to climate change.‟ Preliminary recommendations, supra
139
Regional Greenhouse Gas Initiative Overview of RGGI CO2 Budget Trading Program (n 109).
140
Greenberg ‗Ontario to sign cap-and-trade climate plan‘ <http://www.dose.ca/news/story.html?id=9ff531b51a6e-4864-8256-466a637b128f> (28 February 2010).
141
Western Regional Climate Action Initiative 2007.
142
ibid.
99
[2010] COLR
western States.‘143 The agreement is between 11 States and four Canadian provinces,144
making it the ‗largest cap and trade program in North America.‘145 The WCI set a goal of
reducing emissions 15% below 2005 levels by 2020,146 and has subsequently published
design recommendations for its cap-and-trade system,147 which will cover ‗nearly 90% of the
region‘s emissions.‘148
The WCI is similar to the RGGI on the issue of the distribution of allowance
proceeds; it requires a portion of income ‗will be dedicated to one or more [public purposes]
expected to provide benefits region wide.‘149
E
1
COMPARATIVE ANALYSIS
Federal Level Measures: Relative Efficacy to Date
As the federal level policies have been in place long enough for data on their impact to be
available, it is possible to compare them in terms of actual emissions reductions, rather than
just the relative strength of the targets and provisions they contain.
A brief glance at the respective approaches to climate change reveals that they are in
stark contrast; the EU creating a Federal-level carbon market and regulatory scheme and the
US implementing minimal and piecemeal regulation in favor of encouraging technological
advancement and voluntary emissions reduction. Yet, neither the EU nor US schemes have
been overwhelmingly successful. The EU scheme resulted in a 0.68% increase in emissions
in 2006-2007,150 compared to the US scheme, which resulted in a 1.4% increase over the
same period.151 When considered in terms of carbon intensity, the figures show decreases of
1.22%152 and 0.6%153 respectively. While these figures do not represent the level of emissions
reductions suggested to be necessary by the IPCC,154 they do show that the EU‘s growth in
143
ibid.
The States include Arizona, California, Montana, New Mexico, Oregon, Utah, Washington, and the Canadian
provinces of British Columbia, Manitoba, Ontario, and Quebec. The WCI also has 14 observers: Alaska,
Colorado, Idaho, Kansas, Nevada, Wyoming, the Canadian province of Saskatchewan (which, along with
Alberta, opposes a cap and trade system) and the Mexican states of Baja California, Chihuahua, Coahuila,
Nuevo Leon, Sonora and Tamaulipas.
145
Representing ‗approximately 73% of Canada‘s economy [and] 20% of America‘s economy.‘ ––‗Ontario
Joins
Largest
North
American
Climate
Collaborative‘
Port
of
Entry
<http://www.portofentry.com/site/root/resources/industry_news/6740.html> (28 February 2010).
146
Western
Climate
Initiative
Statement
of
Regional
Goal
<http://azclimatechange.gov/download/082207_statement.pdf> (28 February 2010).
147
Western Climate Initiative Design Recommendations for the WCI Regional Cap-and-Trade Program
<http://www.pewclimate.org/docUploads/WCI%20Design%20Recommendations_23Sep%20complete_0.pdf>
(28 February 2010).
148
––‗US States, Canadian Provinces Announce Regional Cap-and-Trade Program to Reduce Greenhouse
Gases‘
Pew
Center
on
Global
Climate
Change
<http://www.pewclimate.org/docUploads/Sept%2023%20PR_0.pdf> (28 February 2010).
149
Energy efficiency and renewable energy incentives and achievement, R&D (particular focus on carbon
capture technologies), promotion of reductions from uncapped sources, adaption to climate change. Western
Climate Initiative Design Recommendations (n 147).
150
––‗ Emissions trading: 2007 verified emissions from EU ETS businesses‘ EUROPA
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/787> (27 February 2010).
151
US Department of Energy Emissions of Greenhouse Gases in the United States 2007 (n 79).
152
(n 150).
153
US Department of Energy Emissions of Greenhouse Gases in the United States 2007 (n 79).
154
IPCC Climate Change 2007: Synthesis Report, Summary for Policymakers.
<http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf> (27 February 2010).
144
100
[2010] COLR
emissions was half that of the US in 2006-2007. Looking at a longer time frame, the EU
appears to be on track to meet its Kyoto commitments; however, it has been observed that
this slower emissions growth rate may not be down to the efficacy of the ETS itself, but to
large ‗one off‘ reductions which were to take place regardless – namely the UK‘s switch from
coal to newly exploited natural gas, and the closure of inefficient East-German facilities
following reunification.155,156 This, as well as suggesting one factor contributing to the US‘s
non-ratification of the Kyoto Protocol,157 casts serious doubt on the efficacy of the EU ETS.
By comparison, the US EIA estimates a steady increase in emissions under a business as
usual scenario.158
Despite these minimal reductions in actual emissions, the relative efficacy of the
systems may be seen differently in terms of future potential. The EU scheme has navigated
unchartered territory and has had to be adapted and altered based on experience; the changes
made to the ETS, as documented above, along with the promised unilateral 20% cut in
emissions on 1990 levels by 2020 (30% if an international post-Kyoto agreement is
reached),159 seem to be indicative of the culmination of a ‗coming of age‘ process. By
contrast, the current US system does not appear to have great future prospects for emissions
reductions unless it is changed.
It will also be obvious that other benefits can arise from these regimes that may not
directly or contemporaneously reduce emissions. For instance, a regime that has failed to
reduce emissions directly may at least show political will or leadership, or incentives to drive
technological advancement may only become effective upon the arrival at some technological
or scientific breakthrough that cannot yet be foreseen. The former is true of the EU‘s ETS; it
would be unfair to dismiss the EU ETS, the first system of its kind in terms of form, scale and
ambition, based on its negligible effect on emissions reductions, as it has been a strong
showing of international leadership, in the face of attempts to stall action. The latter example
is true of the US, though placing such faith in potential for future reductions, which are
necessarily uncertain and unproven, may be dangerous given the urgency of the global
warming situation. Acknowledging that technological advancement is best used as a
supplementary measure, the EU has initiated a number of programs, similar to those of the
US, to encourage technology and research, such as directives on carbon capture and
storage160 and strong research and development.161
155
Harrison and Sundstrom ‗The Comparative Politics of Climate Change, Multi-Level Reinforcement:
Explaining European Union Leadership in Climate Change Mitigation‘ (2007) 7(4) Global Environmental
Politics.
156
Schreurs and Tiberghien ‗Multi-Level Reinforcement: Explaining European Union Leadership in Climate
Change Mitigation‘ (2007) 7(4) Global Environmental Politics.
EU leadership was made possible in part because of changing underlying conditions in the three
biggest polluter states (Germany, the UK, and Italy) that meant that even under business as usual
scenarios there would be significant cuts in their emissions. It would not have been possible,
however, without European Community-wide acceptance of the principle of differentiated
obligation.
157
Harrison and Sundstrom (n 155) note that the ‗true‘ reductions targets of the Protocol, assessed by comparing
the stated target to the projected business as usual scenarios, placed a far greater burden on the US, their real
target in this sense being a 31% reduction, as opposed to the 7% stated reduction. The EU, by contrast, due to
their already planned reductions, had a real target amounting to a reduction between 3-9%.
158
US Department of Energy: Energy Information Administration Annual Energy Outlook 2009 Early Release
with Projections to 2030 <http://www.eia.doe.gov/oiaf/aeo/pdf/0383(2009).pdf> (28 February 2010).
159
ibid.
160
COM (2008) 18, 2008/0015/COD Proposal For A Directive Of The European Parliament And Of The
Council On The Geological Storage Of Carbon Dioxide And Amending Council Directives 85/337/EEC,
96/61/EC, Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC And Regulation (EC) No 1013/2006.
161
For example the Institute for Prospective Technological Studies, part of the European Commission's Joint
Research Centre, conducts a considerable amount of research into climate change related technologies
101
[2010] COLR
Commentators have suggested that the leadership of the EU is not genuine or
sustainable.162 A detailed discussion of this assertion is outside the scope of this paper and
merely makes for an interesting political sidenote; whether or not it is true, it does not detract
from what is, arguably, the most significant achievement of the ETS: its role as an
experiment and a model of how such a cap and trade system can work. By starting the ETS
and reviewing its effectiveness, the EU has offered the international community an invaluable
source of information and ideas. This can be seen, for example, in the preamble to the
MGGA, where the ETS is cited as a working instance of a trading scheme. In addition to
setting an example to others, with the knowledge the EU has acquired, it has been able to
make its own assessments of the system and make changes to it. As noted earlier, these
changes now seem to be approaching a ‗critical mass‘, whereby inefficiencies and bars to
efficacy are lifted and the ETS becomes a powerful mechanism for emissions reduction
scheme.
Notwithstanding the damning indictment of the US approach, there is certainly some
truth in the assertion that, whatever the intention of the US federal government, the laissezfaire approach has ultimately been successful. This is so in that it has led to initiatives at the
state and regional levels, such as the creation of small, manageable cap and trade systems,
and greater experimentation with possible measures, such as the varying provisions of the
regional agreements (whereas the EU is limited in the extent it can experiment by only
having one system with which to experiment). In the words of the Governor of Maine: ‗in the
absence of any [federal] leadership… states must continue to be the laboratories for policy
implementation.‘163 Though this statement, while supporting the above proposition, itself
acknowledges that these ‗laboratories‘ are only necessary in the case of federal inaction, an
opinion shared by others.164 In addition, while the States taking part in the RGGI, MGGA and
the WCI collectively account for 37% of US emissions (10%, 14% and 13% respectively), it
is likely that some States will not be moved to act by a lack of federal intervention.165 The
number and variety of calls for a federal policy would seem to suggest that the national and
international community believes that there are benefits to be gained from implementing a
federal scheme which are greater than those gained from the present system of
experimentation. Such calls have come from all directions and actors, including Governors of
States involved in regional agreements,166 think tanks,167 influential foreign figures,168
NGOs169 and the EU.170
<http://ipts.jrc.ec.europa.eu/activities/> (28 February 2010), and the Johannesburg Renewable Energy Coalition,
which eponymously focuses on research into renewable energy technologies. For the EU‘s research and
development strategy generally, see European Commission EU action against climate change: Research and
development to fight climate change <http://ec.europa.eu/environment/climat/pdf/brochures/research_en.pdf>
(28 February 2010).
162
Schreurs and Tiberghien (n 156).
163
However he notes that the RGGI, on which he was commenting, ‗can serve as a model for a 50‐state federal
cap-and-trade system.‘ Baldacci „Comments on the Regional Greenhouse Gas Initiative‘
<http://www.rggi.org/docs/Comments_on_the_Regional_Greenhouse_Gas_Initiative_2_.pdf> (28 February
2010).
164
Governor Jim Doyle of Wisconsin stated, when referring to the WCI, ‗in the absence of strong federal
climate change policy, Wisconsin and many other states have led by example.‘ Vigue ‗Governor Doyle, Fellow
Governors Offer Climate Change Partnership with President Obama‘ Office of the Governor Jim Doyle
<http://www.wisgov.state.wi.us/journal_media_detail.asp?locid=19&prid=3926> (1 March 2010).
165
Coal-centric states, such as Pennsylvania, who chose only to be an observer to the RGGI, rather than make
solid emissions reduction commitments.
166
See Baldacci (n 163) and Doyle (n 164).
167
For example McCrea and Kendall who state‗[t]here can be little doubt that the US needs a strong carbonpricing system, such as a cap-and-trade program, to help combat global warming.‘ Grist
<http://www.grist.org/article/Part-I-President-Obamas-roadmap-to-cap-and-trade/> (1 March 2010). Another
102
[2010] COLR
Overall then, it seems fair to conclude that the EU approach has proven to be more
effective, if not at reducing emissions in real terms, at least in the production of indirect and
supplementary benefits such as leadership and example-setting, and has better prospects for
success in the future.
2
The EU ETS and US Regional Cap and Trade systems: Evaluation and
Comparison
Given that only one of the three regional initiatives (RGGI) is currently operational (and only
recently so), there is not yet sufficient data available to enable a determination of whether
these systems are effective. Also, given the significant changes due to be made to the EU
ETS, as discussed above, a comparison to the US regional schemes (whose design has had
the advantage of hindsight, partly by looking to the failures of the ETS) based on its results to
date is likely to do it a disservice and paint an unrealistically bleak picture of its prospects.
In the absence of clear, long-term data, an evaluation and comparison of system
designs is necessary to assess the potential for, and likelihood of, emissions reductions. A
number of factors must be addressed in evaluation; some of these are found in the agreements
discussed, such as the respective program‘s coverage and scope, use of offsets, allowance
allocation and revenues. Aldy and Pizer171,172 suggest further key policy consideration:
mechanisms to address competitiveness concerns and complementary research and
development policies. The Sierra Club, and a number of other organisations,173 advocates the
discussion of similar design elements,174 including the cap itself and linkage provisions.
Using these considerations, individual evaluations and a comparative analysis can be made as
between the four cap and trade systems documented in this paper.
F
TARGETS
The target of a system is obviously crucial; an insufficiently low target will not produce
sufficient reductions, whereas an overly ambitious target may set the system up to fail.
Comparing the targets directly in terms of total emissions reduction is a difficult task due to
the differing baseline years and scopes of the schemes. The EU ETS aims to cut total
example
is
the
Constitutional
Accountability
Center,
guest-writing
for
Grist.org
<http://gristmill.grist.org/story/2009/1/29/231324/472/> (1 March 2010).
168
‗A US cap and trade program is both possible and beneficial.‘ Tony Blair quoted in Baldacci (n 163).
169
A cap and trade program is ‗the kind of smart energy plan that the [US] needs.‘ Frances Beinecke quoted in
Baldacci (n 163).
170
Traynor ‗EU calls on America to create transatlantic carbon trading scheme‘ The Guardian (London 28
January 2009) <http://www.guardian.co.uk/environment/2009/jan/28/carbon-trading-us-europe> (1 March
2010).
171
Aldy and Pizer Resources for the Future Discussion Paper 08-20 Issues in Designing US Climate Change
Policy <http://www.rff.org/documents/RFF-DP-08-20.pdf> (1 March 2010).
172
Though Aldy and Pizer‘s, ibid, discussion paper eponymously refers to US domestic policy, there is nothing
to suggest that their questions and suggestions for analysing the design of cap and trade systems cannot apply to
such systems generally; though some details of their analysis may be confined to US domestic policy
173
California Interfaith, Energy Independence Now, the Pacific Forest Trust, Californians Against Waste,
Environment California, Union of Concerned Scientists, Coalition for Clean Air and the Natural Resources
Defence Council.
174
Sierra
Club
California
Cap
and
Auction
Design
Position
Paper
<http://www.sierraclubcalifornia.org/Cap%20and%20Auction%20Design%20Position%20Paper%202%2025%
20081.pdf > (1 March 2010).
103
[2010] COLR
emissions 14% by 2020, assessed against a 2005 baseline.175 The WCI also uses a 2005
baseline and aims for a cut of 15% by 2020. The MGGA similarly aims for a 15-25%
reduction on 2005 levels by 2020. The RGGI, while offering an 18% reduction of powersector emissions by 2018, only offers a forecasted target of a 2.33% reduction in total
emissions by 2020 when adjusted to a 2005 baseline. This is because it only regulates
electricity generation176 and sets its baseline at a later year (2009)177 than the other schemes.
A further factor in comparing these targets arises from the envisaged effects of
supplementary measures. The EU, for example, also has a direct R&D policy, the only such
policy among the schemes. The RGGI, as a power-sector-centric system does not mention
supplementary policy.
The EU ETS, MGGA and WCI have similar targets, though the possibility that the
ETS and MGGA targets will increase makes them stronger. The RGGI, while seen to have
been innovative in terms of procedure, provides a target so low as to be virtually ineffectual
when viewed in terms of total emissions reductions.
The coverage and scope of the schemes may also affect the perceived strength of the
targets. Where the cap-and-trade scheme covers the whole of the economy, reductions are
cheaper as the costs of making them can be spread across more sources. 178 Thus the target of
an all-encompassing scheme could reasonably be expected to be made stronger. Whereas the
ETS, MGGA and WCI include supplementary reductions in the target, the RGGI while only
making a tiny contribution to overall emissions reductions, makes an 18% reduction in the
emissions of very narrow range of emitters. Viewed in this light, the target looks less weak.
G
PROGRAM COVERAGE AND SCOPE
As a general design principle, the Union of Concerned Scientists 179 believes that ‗it is
simpler, faster, and ultimately more efficient to include all major emitting sectors‘ and that
‗extending a hard cap over a larger part of [the] economy increases the likelihood of
achieving economy-wide reduction targets.‘180 In this regard, the MGGA and the WCI have
made the best commitments. The EU takes the ‗middle road‘ and the RGGI has the narrowest
scope of the schemes discussed; only covering about 25% of the region‘s total emissions.
Aldy & Pizer suggest that it is best to include as wide a range of sources as possible
from the outset as attempts to include further sources later on are likely to be met with
resistance. It seems likely that the particularly narrow scope of the RGGI may cause
difficulties in expansion as other industries can make the argument that the RGGI was never
intended for such expansion, whereas the other agreements are framed as general cap and
trade systems that are to evolve and expand. There is a further, perhaps unforseen, conflict
arising from this under-inclusiveness: a lawsuit181 has been filed by one power company,
175
MEMO/08/35, Questions and Answers on the Commission's proposal to revise the EU Emissions Trading
System.
176
MGGA (n 127).
177
ibid.
178
Union of Concerned Scientists Comments of the Union of Concerned Scientists to the Midwestern
Greenhouse
Gas
Reduction
Accord
Advisory
Group
<http://www.midwesternaccord.org/Comments/Union%20of%20Concerned%20Scientists.pdf> (1 March 2010)
– a wide scope ‗allow[s] market forces to help determine which sectors can provide the cheapest emission
reductions‘ – and Aldy & Pizer (n 171) – ‗economic theory recommends making a cap-and-trade program as
broad as possible in order to seek out the cheapest abatement opportunities.
179
Union of Concerned Scientists (n 178).
180
ibid.
181
The suit ‗challenges the legal authority of New York‘s agencies to create the cap-and-trade system‘ - it
should be noted that the possibility of bringing this suit may be unique to New York, as it is the only state to
104
[2010] COLR
complaining that the limited scope of RGGI means that the ‗regulations arbitrarily
discriminate against a few‘ emitters and ‗levies a [tax] on electric generators.‘182
This observation does not appear to apply so strongly to EU measures; for instance,
the EU ETS is successfully being expanded to include further industrial activities183 and
aviation184 (which is particularly significant as aviation is an area known for its resistance to
regulation185 and its lobbying power).186 The fact that the EU overcame such resistance from
the aviation lobby may also suggest that it is not the advent of resistance itself that is
important, but the strength of political will to overcome it. In this regard, the political
intricacies of the US may mean it is essential for a US cap and trade scheme to be inclusive
from the beginning, whereas the EU can tolerate a little more flexibility.
In the US, the propensity for strong resistance goes beyond a mere reaction to
expansion of existing systems, and seems to permeate every stage of cap and trade
implementation.187 For example, the WCI received strong comments regarding the inclusion
of aviation in the initiative, asserting that its inclusion would be unbeneficial and, moreover,
illegal.188 Similar opposition came from the gas,189 oil,190 and cement191 industries.192
implement the RGGI through executive, and not legislative, action. Kate Galbraith ‗Lawsuit Filed in Northeast
Carbon Trading Scheme‘ New York Times (New York 29 January 2009).
182
ibid.
183
For example aluminum and ammonia production. COM(2008) (n 49).
184
ibid.
185
In the present case, the inclusion of aviation was ‗bitterly opposed by the airline industry.‘ ––‗Airlines
Prepare for EU Carbon Trading Scheme‘ EurActiv <http://www.euractiv.com/en/transport/airlines-prepare-eucarbon-trading-scheme/article-179059> (1 March 2010).
186
For an extreme example of the power of the aviation lobby in the UK, see Toby Helm ‗Fury at airport lobby
links to No 10‘ The Observer (18 January 2009), reporting on the close ties between the British Government
and the aviation industry. In the US, air transport companies spent $90,961,831 on lobbying in 2008. The Center
for Responsible Politics <http://www.opensecrets.org/lobby/indusclient.php?lname=M01&year=a> (1 March
2010).
187
For a particularly strong opposition, Kaminsky who states that ‗cap-and-trade, when it arrives, will either be
as damaging as possible to consumers, will accomplish none of its stated goals, or, most likely, both.‘ R
Kaminsky
‗Potential
Costs
to
America
From
Cap-and-Trade‘
Human
Events
<http://www.humanevents.com/article.php?id=26621> (1 March 2010).
188
Air Transport Association Comments on Western Climate Initiative Draft Program Scope Recommendations
and Air Transport Association Comments on Western Climate Initiative Draft Design Recommendations on
Elements of the Cap-and-Trade Program (n 147).
189
See American Gas Association Comments of the American Gas Association on WCI Draft Recommendations
<https://www.aga.org/NR/rdonlyres/6C7BC6EE-D8A1-407F-9CCA36D0767DAA60/0/0806WCIFINALCOMMENTS.pdf> (1 March 2010) – ‗AGA urges WCI to cover
residential and commercial natural gas customers through enhanced energy efficiency programs rather than by
including them under an emissions cap-and-trade system at this time.‘ Also see Carbon Offset Providers
Coalition RE: Comments on WCI Draft Recommendations – ‗we oppose the inclusion of residential and
commercial natural gas customers in a cap-and trade system.‘ However, some gas companies were not entirely
opposed to inclusion: see Avista Joint Comments to the WCI on its Draft Recommendations on Elements of the
Cap-And-Trade
Program
<http://www.aga.org/NR/rdonlyres/C9CEFD67-E8C3-4058-90BA04283F904ADC/0/0805WCISCOPENJCOMMENTS.pdf> (1 March 2010) – ‗We recommend bringing large
customers into a regional cap and trade market, but do not support bringing small natural gas customers
([commercial and residential]) into that same cap and trade market at this time.‘
190
In a letter to Ms Janice Adair, Chairman of the Western Climate Initiative, Marty Bitter, Manager of State
Government Affairs of Chevron Corporation stated: ‗[I]t is the wrong time to take the unprecedented action to
combine
transportation
fuels
in
a
cap-and-trade
program.‘
<http://www.westernclimateinitiative.org/Draft_Proposals_Comments.cfm> (1 March 2010).
191
Comments on Draft Design Recommendations, Ash Grove Cement Company, 06/06/2008, suggesting that
some emissions in this industry „cannot be impacted whatsoever by efficiency or other improvements in the
process‟ and thus „strongly oppos[ing] the inclusion of [such emissions].‟ Available at:
<http://www.westernclimateinitiative.org/Draft_Proposals_Comments.cfm> (1 March 2010)
105
[2010] COLR
H
OFFSETS193
A general consensus that offsets are a desirable element of a cap and trade system may be
inferred from their inclusion in all of the discussed regimes. Offsetting can be used to
counter-balance emissions that are impossible to reduce (for instance, cement production
emissions),194 or those that are not covered by the cap and trade system. It can also reduce the
cost of compliance, offsetting emissions that are covered, but costly to reduce, by making
cheaper reductions elsewhere. While useful, it is submitted that there are a number of
potential issues with offsets that schemes must work hard to address: the reductions may not
be ‗real‘ – the reduction may ‗not represent a truly additional effort to mitigate emissions‘195
or it may have taken place anyway – or their extent may be difficult to measure; true changes
in behavior may be discouraged196 and the secondary benefits of the reduction – for example,
better immediate air quality – will not be felt locally. In addition, transaction costs may be so
high as to make the cost-saving effect of the offset minimal.197 In order to ensure the integrity
of offsets, the Sierra Club suggests that they must be ‗real, quantifiable, additional,
permanent, subject to independent third-party verification and enforceable.‘198 These may
serve as principles, or guidelines, for assessing offset provisions. In addition, they need to
ensure changes in behavior indicates that offsets should only represent a limited portion of
the compliance obligation, be discounted where appropriate to compensate for loss of local
benefits and uncertainty, and aim to minimize transaction costs.
Offsets under the EU ETS are obtained through the use of two of the Kyoto flexibility
mechanisms:199 joint implementation200 and the clean development mechanism.201 The
prolific rulemaking pertaining to these offsetting mechanisms202 warrants a discussion paper
in itself. Here, it suffices to merely take a cursory glance at these rules and instead focus
instead on an assessment of how positive a contribution offsetting has made to the ETS. With
192
These industries ‗believe their situation warrants special consideration—competition from abroad,
vulnerability to price volatility, or security.‘ Aldy & Pizer (n 171).
193
‗The theory is simple: projects that reduce emissions are granted credits equal to the volume of reductions...
Firms regulated by the cap-and-trade program [use the credits] to offset some of their emissions.‘ ibid.
194
Comments on Draft Design Recommendations (n 191).
195
Aldy & Pizer (n 171). As an example, they refer to the contention that the CDM of the Kyoto Protocol has
mostly been used to destroy HFC-23 creating a subsidy to open factories for this purpose. New Scientist noted
that ‗it is very wasteful to use the CDM to ensure destruction of HFC 23, when it would be far cheaper to simply
give the factories the money to install the equipment to destroy the gas.‘ —„Kyoto Protocol 'loophole' has cost
$6 billion‘ New Scientist <http://www.newscientist.com/article/dn11155-kyoto-protocol-loophole-has-cost-6billion.html> (1 March 2010).
196
‗[T]he danger is that [offset projects] will distract attention from the broader effort to curb global warming
gases, and that the lure of quick profit will encourage short-term fixes at the expense of fundamental, long-run
solutions.‘ Bradsher ‗Outsize Profits, and Questions, in Effort to Cut Warming Gases‘ The New York Times
(New York 21 December 2006) <http://www.nytimes.com/2006/12/21/business/21pollute.html> (1 March
2010). George Monbiot states: ‗Any scheme that persuades us we can carry on polluting delays the point at
which we grasp the nettle of climate change and accept that our lives have to change. [Offsetting] undermin[es]
the necessary political battle to tackle climate change at home.‘ Monbiot ‗The trade in carbon offsets is an
excuse for business as usual‘ The Guardian (London 18 October 2006).
197
„The US experience with project-based trading shows that high transaction costs can eliminate most of the
potential cost-savings of trading.‘ Aldy & Pizer (n 171).
198
Sierra Club California Cap and Auction Design Position Paper (n 174) parenthesis omitted.
199
Kyoto Protocol (n 14) Articles 6 and 12.
200
‗[C]overing projects carried out in countries with an emissions reduction target under the Protocol‘
MEMO/08/35 Questions and Answers on the Commission's proposal to revise the EU Emissions Trading
System.
201
‗For projects undertaken in developing countries.‘ ibid.
202
For join implementation rules, see the JI website <http://ji.unfccc.int/Ref/Docs.html> (2 March 2010). For
CDM rules see the CDM rulebook <http://www.cdmrulebook.org> (1 March 2010).
106
[2010] COLR
regard to the CDM, in order to ensure that emissions reductions are ‗real, measurable, and
[offer] long-term benefits related to the mitigation of climate change‘ and that they are
‗additional to any that would occur in the absence of the certified project activity.‘ 203 The
Conference of the Parties204 has provided for verification and monitoring to ensure that the
criteria of Article 12 are met. Similar provisions exist for joint implementation.205, 206
As the majority of JI and CDM projects are implemented by EU Member States,207, 208
it will be obvious that any criticism or praise levelled at the mechanisms generally will be of
particular significance to the ETS. A look at the numbers suggests that the mechanisms are
functional and their use is growing. By 2012 it is estimated that there will be 515 JI209 and
more than 4200 CDM210 projects, accounting jointly for a reduction of more than 2.9 billion
MtCO2e, 211 much of which, as noted, will have come from the EU.
One early criticism of the CDM was the ‗perverse incentives‘ argument relating to
HFC-23,212 which has now been partly addressed by governments,213 and partially addressed
by a UN COP decision, which ‗encourages parties… to provide funding from sources other
than the clean development mechanism for the destruction of HFC-23.‘214, 215 A more present
major criticism is that, while the bare statistics suggest success, in reality additionality is
lacking, to the point that ‗much of the current CDM market does not reflect actual reductions
in emissions.‘216 A further investigation of the statistics does seem to bolster this criticism:
‗almost three-quarters of projects were already complete at the time of approval.‘217Assessing
whether the reality is as disappointing as the criticism suggests is itself difficult. On the one
hand there are strict rules and requirements to ensure additionality. However, critics suggest
that, in practice, ‗judging additionality has turned out to be unknowable and unworkable.‘218
203
Kyoto Protocol (n 14) Article 12.
Conference of the Parties to the United Nations Framework Convention on Climate Change, serving as the
Meeting of the Parties to the Kyoto Protocol.
205
Note that the potential for spurious emissions reductions of JI projects has been less of a concern than with
CDM projects, as JI occurs in countries which have an emission reduction requirement.
206
As a starting point, see Report of the Conference of the Parties serving as the meeting of the Parties to the
Kyoto Protocol on its first session: Decision 9/CMP 1 Guidelines for the implementation of Article 6 of the
Kyoto Protocol.
207
For statistics on JI, see United Nations Environment Program Division of Technology Industry and Economy
Session 5: Kyoto and Joint Implementation, Applying Cleaner Production to Multilateral Environmental
Agreements: A Training Kit <http://www.unepie.org/scp/publications/details.asp?id=DTI/0899/PA> (2 March
2010).
208
‗Buyers based in Europe (41% in 2004, 56% in 2005) and Japan (36% versus 38%) dominate the market for
project-based transactions.‘ ibid Session 6.
209
ibid.
210
ibid.
211
JI: 268 MtCO2e (Kyoto and Joint Implementation (n 207)). CDM: > 2,900,000,000 CERs. One CER is
‗equal to one metric tonne of carbon dioxide equivalent‘ <http://cdm.unfccc.int/Statistics/index.html> (2 March
2010).
212
Aldy & Pizer (n 171).
213
‗[A]wareness of the HFC-23 problem has grown and governments have tried to clamp down on these
projects.‘ Wara and Victor Program on Energy and Sustainable Development Working Paper A Realistic Policy
on International Carbon Offsets <http://iis-db.stanford.edu/pubs/22157/WP74_final_final.pdf> (2 March 2010).
214
Only partially because the decision does not mandate that the CDM not be used. The Conference of the
Parties serving as the meeting of the Parties to the Kyoto Protocol Decision 8/CMP.1: Implications of the
establishment of new Hydrochlorofluorocarbon-22 facilities seeking to obtain certified emission reductions for
the destruction of hydrofluorocarbon-23 <http://cdm.unfccc.int/Reference/COPMOP/08a01.pdf#page=100> (2
March 2010).
215
ibid.
216
Wara & Victor (n 213).
217
The fact that projects were already completed clearly suggests that capital was not needed, and that the
reductions had already taken place. ibid.
218
McCully ‗Kyoto Carbon Trading Strategy Discredited‘ The Guardian (London 21 May 2008).
204
107
[2010] COLR
Overall it seems impossible to know with any degree of certainty how effective the
EU offsetting regime has been. While the experience, at best, suggests a need for great
caution, it may also suggest that offsets should not be used at all, 219 or that they should not be
used to meet the compliance target, but be encouraged for the secondary benefits.220
All three of the US regional agreements have adopted almost this exact wording of the
Sierra Club when referring to the criteria that should apply to offsets. However, given the
difficulty experienced by the EU in ensuring these criteria are met, even where extensive
regulations exist, it is hard to think that anything short of a revolutionary new method of
implementing offsets would be sufficient to achieve the real reductions needed for offsets to
be a valuable part of an emissions trading scheme. It may be said that the failure lies with the
CDM specifically, rather than offsets generally, but this overlooks the fact that the key
problem with the CDM is verifiability; it is obvious that this problem can apply to any system
that requires emissions to be measured. In this regard, Wara & Victor ‗counsel against many
of the popular ―solutions‖ to problems with offsets‘ when designing US policy, including
even the imposition of restrictions on their use.221
Taking this stern warning into account, it is concerning that the WCI allows a huge
49% of total compliance to be met by offsets, and the RGGI allows 3.3%, with the possibility
of an increase.222 The MGGA notes that use of offsets should be constrained, but is not yet
specific.223 Worryingly, the MGGA and the WCI also envisage the use of the CDM and JI. 224
While limitation on use does not solve the problems with offsets, it is still an important
consideration. Offsets, on their face, have an attractive appeal and are, in theory, a legitimate
and useful method of reducing emissions. Imposing a limit on their use allows a system to
take advantage of the political and theoretical appeal of offsets, and attempt to develop a
reliable mechanism, while also offering some measure of ‗damage limitation‘ – for example,
if offsets prove to be impossibly unworkable, a system limiting their use to 3.3% of a
compliance obligation will be less disrupted than a system only limiting to 49%.
I
REVENUES AND ALLOWANCE ALLOCATION
The issue of revenues made through cap and trade systems and the allocation of allowances is
‗one of the most formidable questions.‘225 The EU has proposed an increased level of
auctioning following the experience with the NAP system. Under these proposals, electricity
generation allowances will be fully auctioned from 2013; other sectors will approach full
auctioning gradually, starting at a level of 20% and arriving at 100% auctioning in 2020.226,227
219
McCully, ibid, goes as far as saying that ‗we cannot risk one of [climate policy‘s] central planks being a
programme that is so fundamentally flawed. In the short term, the CDM must be radically reformed. In the long
term it must be replaced.‘
220
Further reduction in emissions beyond the stated target. Note that the CDM is also intended to aid third world
countries; a ‗secondary‘ benefit to that of meeting the compliance targets.
221
‗Offset caps as envisioned in the Lieberman-Warner draft legislation, for example, do little to fix the
underlying problem of poor quality emission offsets.‘ Wara & Victor (n 213).
222
ibid.
223
„The use of offsets should be constrained to provide for reductions from the covered sectors. The specific
constraint on offsets use will be determined after review of the modelling results.‘ MGGA Draft
Recommendations (n 128).
224
‗States and provinces should consider incorporating the Clean Development Mechanism (CDM) and Joint
Implementation (JI) programs.‘ WCI Draft Recommendations.
225
Aldy & Pizer (n 171).
226
COM(2008) 16 final 2008/0013 (COD) Proposal for a DIRECTIVE amending Directive 2003/87/EC so as to
improve and extend the greenhouse gas emission allowance trading system of the Community.
227
‗[I]t is estimated that, at least two thirds of the total quantity of allowances will be auctioned in 2013.‘ ibid.
108
[2010] COLR
The EU has also suggested that a portion of revenue be dedicated to mitigation and adaption,
with 20% being proposed.228 As previously noted, the RGGI has had some success with its
auctioning system, and has led to an agreement to use at least 25% of revenues for climate
change related purposes.229 The MGGA draft recommendations note that the ‗decision on
whether to auction or allocate allowances resides ultimately with the jurisdictions,‘ but does
place conditions on free allocation230 and auctions. The WCI design recommendations would
require a portion of revenues be allocated for climate change related purposes also.
There are significant benefits to using auctions. The vast revenues generated could be
used in a variety of ways. Most importantly, from the environmental perspective, they could
be used to increase the effectiveness of climate change abatement by funding further
measures, as is the case in all of the above systems. From a different point of view, it is
submitted that the revenue could allow a reduction of other taxes. This would certainly help
overcome some of the political problems with climate regulation. Revenues may further be
used to overcome the ‗regressivity‘ of climate change policy.231
J
ADDRESSING COMPETITIVENESS CONCERNS
The imposition of a fee for emissions historically released at no cost may reduce
competitiveness of regulated entities with similar entities internationally, or inter-state. While
this is, taken at face value, a concern of considerable weight, closer inspection somewhat
lessens its importance. Competition with other developed nations is unlikely to be affected as
all nations of the OECD have comparable environmental regulation232 and some analyses233
suggest that only the most energy intensive industries ‗face any kind of economically and
statistically meaningful competitiveness threats.‘234
Some concerns remain, and Aldy and Pizer suggest that ‗coordinating policy efforts
with other countries, using allowance allocations and/or exemptions as means to mitigate
adverse impacts on industry, and regulations or taxes on imports‘ could address these
concerns.
The EU uses the first technique; the cost of doing business is the same in any of the
27 countries. It may be that the three regional agreements of the US have the opposite effect;
it could be cheaper for a business to operate in a different state, where the price per ton of
carbon is less, or there is no regulation (‗the Delaware effect‘ or ‗race to the bottom‘). Some
228
ibid.
a certain percentage of the proceeds from the auctioning of allowances should be used to reduce
greenhouse gas emissions, adapt to the impacts of climate change, fund research and
development, develop renewable energies, for the capture and geological storage of greenhouse
gases, to contribute to the Global Energy Efficiency and Renewable Energy Fund, for measures to
avoid deforestation and facilitate adaptation in developing countries, and for addressing social
aspects such as possible increases in electricity prices in lower and middle incomes.
229
ibid.
230
For example, receipt of free allowances must be contingent upon the implementation of energy efficiency
programs and upon historical emissions.
231
Metcalf Distributional Considerations with Carbon Pricing (Director‘s Conference On Climate Change 16
November 2007) <http://www.cbo.gov/communications/advisory/2007-11-16-climatechange/metcalf.pdf> (2
March 2010)
232
Ederington Minier and Levinson ‗Footloose and Pollution-Free‘ (2005) 87(1) Review of Economics and
Statistics.
233
Morgenstern Aldy Ho and Pizer Resources for the Future: Competitiveness Impacts of Carbon Dioxide
Pricing Policies, in Assessing US Climate Policy Options.
234
Aldy & Pizer (n 171).
109
[2010] COLR
research speculates, however, that despite originating in different systems, the price of carbon
begins to converge over time, thus reducing the competitive burden.235
While the EU began with free allowances, it will now join the other regional
agreements in using auctions. Free allowances do address the competitiveness concern.
However, the revenue to be gained from auctioning are clearly extremely valuable, and
appear to have outweighed the minimal concern over competitiveness. It may be observed
that the traditional dichotomy of choosing either auctions or free allocation has now been
blurred and, although it seems to remain with the four agreements discussed, future cap and
trade systems may choose to allocate allowances freely to industries that are most likely to
suffer adverse effects.
The discussed systems do not mention taxes of the kind envisaged here; it is likely
that such adjustments will be left to the federal government to make as necessary.
Much evidence suggests that the most desirable, and possibly necessary,236 step that
should be taken to reduce competitiveness effects is to have a global system of carbon
trading, or many regional systems that link together.237 This would mean that the burden is on
businesses and entities everywhere, so that the competitiveness of one particular country,
state, or business, is not affected appreciably more than another. Senator Barbara Boxer, a
proponent of cap and trade systems, affirms this notion in her Principles for Designing Global
Warming Legislation, saying that legislation should ‗ensure a level global playing field, by
providing incentives for emission reductions and effective deterrents so that countries
contribute their fair share.‘238 From this viewpoint, the issues of linking of systems, discussed
at the end of this section, and future international agreement take on additional importance.
K
COMPLEMENTARY R&D POLICIES
R&D is important to climate change abatement and adaption in a similar way to the
distribution of allowance revenues; it supplements the primary goal of a physical reduction in
emissions. By researching and developing new technologies, the level and/or pace of
reduction and adaption can be bettered, and/or the costs of compliance may overall be
reduced. While some innovation can be expected as a result of the increased costs of business
due to a cap and trade system, incentives for investment may still be weak because of the
nature of the research; ‗creating knowledge through R&D generates benefits that the
innovator cannot fully appropriate.‘239 Furthermore, there is a need for governmental
intervention as many projects that need to be undertaken are too high-risk, and are therefore
unlikely to be taken on by private investors.240 In order to fill this gap, it is clear that a federal
level policy is needed.
235
Aldy ‗Divergence in State-Level Per Capita Carbon Dioxide Emissions‘ (2007) 83(3) Land Economics.
A global agreement is ‗a necessary step toward equalizing costs to different countries.‘ Harrison and
Sundstrom ‗The Comparative Politics of Climate Change‘ (2007) 7(4) Global Environmental Politics.
237
‗Global implementation… would reduce the competitiveness effects of a national-level policy.‘ Morgenstern
et al Issue Brief : Competitiveness Impacts of Carbon Dioxide Pricing Policies on Manufacturing
<http://www.rff.org/rff/Publications/upload/31811_1.pdf> (3 March 2010).
238
Boxer
Principles
for
Global
Warming
Legislation
<http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=14dc734d-74c9-4fb3-8bf26d5d539226d1> (2 March 2010).
239
Aldy & Pizer (n 171).
240
‗[Failure] is the outcome expected from the high-risk, forward-looking research investment portfolio that the
private sector is unlikely to undertake and therefore should be maintained by the federal government.‘ Chow and
Newell A Retrospective Review of the Performance of Energy R&D, (Washington RFF) 05/2004
236
110
[2010] COLR
The US R&D policy, as noted, is not supplemental, but is the core of US federal
policy. A review of the literature suggests that, overall, the return on US federal level
investments is generally high, both economically and environmentally241 albeit that the main
benefits arise from only a handful of projects.242 The R&D policy of the EU has been
similar.243
As the three regional agreements are just that, regional, it may reasonably be expected
that they would choose not to address the issue of R&D, instead leaving it to the federal
government and using existing R&D policies to supplement their efforts. In fact, the regional
agreements themselves have indirectly facilitated R&D by stipulating the uses that may be
made of revenues. For instance, the MGGA‘s first legitimate use is for ‗accelerating
transformational investment‘, while the WCI includes ‗research, development,
demonstrations, and deployment‘ as one of the public purposes to which proceeds can be
contributed.244
L
LINKING AND INTERACTION BETWEEN SYSTEMS
The International Emissions Trading Association notes that linking is desirable for two key
reasons:245 first, it is ‗inherently more efficient, liquid, and competitive‘ and, secondly,
‗provides a broader pool and greater variety of abatement [opportunities].‘ As the systems
discussed are all relatively young, it is unsurprising that collaboration is also young. Yet,
already there are positive signs of co-operation between different systems. The MGGA draft
recommendations explicitly advise ‗the participating States and province seek to link the
Accord‘ to the other three systems, as well as ‗other mandatory greenhouse gas reduction
programs as appropriate‘ and the WCI, most ambitiously, states that ‗the WCI Partner
jurisdictions will seek linkages with other cap-and-trade systems so that those allowances and
allowances issued by WCI Partner jurisdictions would be fully fungible.‘ While the RGGI
does not include provisions relating directly to linkage, it has begun an informal advisory
relationship with the WCI; they ‗talk on a regular basis... to see what they found worked and
what to do differently.‘246 The EU‘s linking directive means that that three non-EU Member
States are now part of the ETS, and, in a more unusual act of co-operation, the state of
California and the UK have forged a Climate Change and Clean Energy Collaboration to
‗evaluate and implement market-based mechanisms‘ and ‗share best practices.‘247 It may be
advisable that, given the emergence of cap and trade systems, future proposals should include
more detailed provisions regarding linkage.
241
‗The literature typically finds that federal energy R&D investments have on the whole yielded both
substantial direct economic benefits as well as external benefits such as pollution mitigation and knowledge
creation.‘ ibid.
242
ibid.
243
See EU action against climate change, Research and development to fight climate change <
http://ec.europa.eu/environment/climat/pdf/brochures/research_en.pdf> (3 march 2010).
244
MGGA (n 127).
245
International Emissions Trading Association Linking the EU ETS with emerging emissions trading schemes
<http://www.ieta.org/ieta/www/pages/getfile.php?docID=2419> (2 March 2010).
246
J
Adair
Interview
in
Energy
Advantage
<http://www.emeraldinsight.com/Insight/ViewContentServlet?Filename=Published/EmeraldFullTextArticle/Art
icles/0560230409.html> (3 March 2010).
247
UK-California Climate Change and Clean Energy Collaboration.
111
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M
CONCLUSION
It is now clear that cap and trade systems ‗have emerged as the preferred national and
regional instrument for reducing emissions of greenhouse gases throughout the industrialized
world‘248 This is not only backed up by the four agreements discussed here, but also by the
number of US proposals for such a system in the past, the calls for one in the future, and the
recent call from the US president himself.249
An analysis of these agreements suggests some directions for the future of cap and
trade systems. As noted, a good starting point is a strong target. Both the ETS and RGGI have
started with strong targets (though the RGGI is limited by its narrow scope), and have both
made progress toward these targets: ‗the EU250 and most Member States are on track to
deliver on their Kyoto Protocol commitments‘251 and RGGI has resulted in advances in
auctioning procedure.252 The agreements suggest that it is desirable for the scope of a
program to be as wide as possible from the outset for a number of reasons. A narrow scheme
may make the target insignificant when looking at the bigger picture, or may invite claims of
unfairness or discrimination, which are both demonstrated by RGGI. A fairly broad program,
such as the ETS, MGGA and WCI, may be more open to later expansion, if it is the perceived
intention of the scheme. However this is likely to be met with some resistance, possibly
substantial, which does cause inefficiencies. An analysis of the use of the CDM suggests that
verifiability may be a problem that is either impossible to conquer, too costly to rectify
economically, or too risky environmentally. At best there is a need for extreme caution,
which, as yet, does not appear to have been headed. It is submitted that future proposals, as
well as existing systems, should tread very carefully in this area. Auctions have emerged as
the preferred method of allocation, with some of the proceeds going to climate-related
projects. However, it is submitted that further good could be done if a greater percentage of
the revenues were allocated in this way, or if the systems provided that the revenues be partly
used in aid of preventing competitiveness problems. As to competitiveness concerns, the
strong concerns expressed by some253 seem largely unfounded. Future proposals for cap and
trade systems, however, should consider further breaking from the auction/free allocation
dichotomy in order to alleviate the remaining competitiveness concerns. Governments may
also intervene with import taxes to further alleviate concerns if necessary. In the event of an
international agreement, these problems are likely to be negated. Complementary R&D
248
Jaffe and Stavins The Harvard Project on International Climate Agreements: Linkage of Tradable Permit
Systems
in
International
Climate
Policy
Architecture
<http://belfercenter.ksg.harvard.edu/files/StavinsWeb6.pdf> (3 March 2010).
249
Office of Management and Budget A New Era of Responsibility: Renewing America's Promise, United States
Federal
Budget
for
Fiscal
Year
2010
<http://www.whitehouse.gov/omb/assets/fy2010_new_era/a_new_era_of_responsibility2.pdf> (3 March 2010).
The budget proposes a 10-year investment of US $15 billion per year, generated from the auction of emissions
credits.
250
Referring to the 15 Member States signing the Kyoto Protocol.
251
––‗Climate change: projections show EU on track to meet Kyoto emission targets‘ EUROPA
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1534&format=HTML&aged=0&language=EN
&guiLanguage=en> (3 March 2010).
252
‗The RGGI auction design is serving as a model for CO2 cap-and-trade programs under consideration in
other regions and in the US Congress.‘ Regional Greenhouse Gas Initiative Executive Summary (n 106).
253
See Congressional opposition to cap and trade on this basis. ‗[M]any Republicans in Congress remain deeply
sceptical about adopting a market-based mechanism to cut carbon emissions, fearing it may hit the
competitiveness of US firms and products on global markets.‘ Obama confident US will have cap-and-trade
law,
American
Free
Press,
03/25/2009
<http://www.google.com/hostednews/afp/article/ALeqM5haAGggDzdMTlhFb28AECt2BEFHbw> (3 March
2010).
112
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policy is of great importance, given the limited investment incentives for private actors; both
of which the EU and the US provide. While some linking and interaction between systems
has taken place, it is suggested that further, and more formal, co-operation needs to be
established.
Overall then, the analysis of the systems above suggests the desirability of an
overarching, federal-level scheme to deal with climate change; a preference for a cap and
trade model, with a strong target, broad scope; a hybrid system of auctioning and allocation;
and provision for linking to other systems. The analysis also suggests that no one system is
quite yet at this, possibly unattainable, level of advancement. However, encouraging are the
actions of the EU ETS and the RGGI in leading the way and implementing cap and trade
systems, and the in-depth planning process of the later MGGA and WCI agreements; both
seeking to take into account the issues documented in this paper and begin their respective
systems with a strong design. Further optimism can be gleaned from the knowledge that the
regional systems are already using such a comparative analysis and are looking to each other
for advice and ideas.
(a)
The Future of EU and US Climate Change Regulation
As has been seen with the ETS, the EU has led to date but the true extent of leadership is
questionable, as is the true extent of the efficacy of the ETS. Future US leadership and
participation may well be necessary to international climate agreements.254 However, the
pessimism of these comments is somewhat counteracted by the fact that support ‗continues to
build for federal action‘255 and there is ‗clear evidence that momentum toward a Federal
GHG emissions trading system is building rapidly‘256 amid various calls for such action. The
EU maintains that it will continue to play a leading role, stating that ‗the EU is ready to play
its full part. We have put our bold commitments on the table.‘257
International agreement remains key to the future of EU and US climate change
measures and to the issue generally. According to the Bali Roadmap,258 a post-Kyoto plan is
to be agreed at the 2009 meeting in Copenhagen. It has been suggested that ‗Europe and the
United States must start working together in the field of climate change.‘259 As to this
required collaboration, the EU Commissioner responsible for environmental policy stated that
he is ‗encouraged by the message of change‘ of the new administration and will ‗welcome an
ambitious US seeking to provide international leadership on this crucial challenge.‘
254
Schreurs and Tiberghien (n 156) note that„leadership will be harder… for Europe to sustain in the future.‘
Aldy and Pizer (n 171) commenting on the multitude of congressional cap and trade bills.
256
International Emissions Trading Association Linking the EU ETS with emerging emissions trading schemes
(n 245).
257
Dimas An ambitious Copenhagen agreement is not a choice, it is a must (High Level Segment of the
Fourteenth Conference of the Parties to the United Nations Framework Convention on Climate Change Poznan
11 December 2008).
258
Decision -/CP.13 Bali Action Plan (Adopted at the United Nations Climate Change Conference Bali 2007).
259
Dimas (n 257).
255
113
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SCIENTIFIC UNCERTAINTY AND THE PRECAUTIONARY PRINCIPLE
Niamh O‘Sullivan *
A
INTRODUCTION
The relationship between law and science can be said to be an uneasy one, beset by conflicts
of both method and objective.1 Despite this, however, the science-law relationship is often of
considerable importance. Nowhere is this more evident than in relation to environmental
law. Through scientific disciplines such as ecology, chemistry, physics, geosciences and so
on, scientific knowledge is developed which is then used to form the basis of environmental
protection laws. Indeed, scientific research is often initiated with the primary aim of
facilitating the making of law and policies.2 Of course science also plays another role: that of
innovation and the creation of new techniques, methods and technologies, which can impact
the environment, often in a negative way. Thus a symbiotic relationship is established
whereby science not only is needed to inform the law but also is necessarily regulated by it.
The overwhelming reliance on science in developing environmental law has given
rise to difficult issues however. One such issue is how the law can or should regulate risk in
the face of scientific uncertainty. In modernist thought, science was regarded as a higher
universal domain of thought containing ultimate truths and capable of giving definitive,
certain answers. Today, given the massive increase in technologies, methods and forms of
knowledge it has long since been recognised that this is not always the case. 3 Despite the
leaps and strides that scientific knowledge has taken in recent years, there is still much we are
uncertain about, and even more but which we are entirely ignorant.4
In environmental law one devise that has developed to deal with situations where it is
clear that we do not know enough, or are not certain enough, is the precautionary principle.
This principle can be seen as part of a rejection of the modernist science-law paradigm, in
*BCL(Hons) Student, University College Cork.
1 MA Berger & LM Solan ‗The Uneasy Relationship Between Science and the Law: An Essay and
Introduction‘ (2008) 73(3) Brooklyn Law Review 847 <http://works.bepress.com/lawrence_solan/70> (2 March
2010). Such conflicts can commonly be seen, for example, where the level of certainty scientists can offer falls
far below the level needed for proving causation in legal arenas. For a more detailed discussion of the
relationship between scientific evidence and environmental law see Biondi and others (eds) Scientific Evidence
in European Environmental Rule-Making: The Case of the Landfill and End-of-Life Vehicles Directives
(Kluwer Law International New York 2003).
2 One example relates to the obligation on producers or manufacturers of certain products, who have to prove
their substance is not hazardous before it can be authorised by the relevant competent authority. Thus the
impetus for researching the characteristics and properties of that substance is the regulatory requirements rather
than pure scientific interest.
3 For a critique of science in modernity and the postmodern incredulity towards metanarratives, see JF Lyotard
The Postmodern Condition: A Report on Knowledge (Manchester University Press Minneapolis 1984).
4 CFCs and asbestos are good examples of ignorance and uncertainty in the past. Scientific uncertainty played a
large part in the late reaction to claims of the dangers of asbestos (made as early as 1898) which we now know
only too well are well-founded; asbestos is the main cause of mesothelioma, a very rare cancer of the chest or
abdomen lining, and is also a cause of lung cancer. In relation to ignorance, the effect of chlorofluorocarbons
and their damage to the ozone layer were not even contemplated prior to 1974, having been considered safe to
use before then. The confirmation of the hole over the Antarctic in 1985 was essentially by accident. See
discussion of these issues and other ‗acting too late‘ scenarios in European Environmental Agency‘s Report Late
lessons from early warnings: the precautionary principle 1896 – 2000 (2002) Environmental Issue Report No.
22 < http://www.eea.europa.eu/publications/environmental_issue_report_2001_22> (4 May 2009).
[2010] COLR
favour of a post-modern approach, which embraces the reality that science is not omniscient.5
Where circumstances arise in which the scientific knowledge available is not capable of
ruling out adverse effects or fully identifying all possible risks, the precautionary principle
allows public authorities to act without conclusive evidence, as waiting for full information it
may ultimately be acting too late.6
The aim of this article is to analyse the nature of the precautionary principle as a
means of dealing with scientific uncertainty in risk analysis. To set the scene, the origin and
aim of the principle will be looked at briefly. The scope of the principle and the type of risks
which attract precautionary measures will then be considered, along with some of the
principle‘s limitations. Finally, the way in which the principle has been applied by courts and
competent authorities will be reviewed with a view to determining what legal effects the
principle has had and may potentially have.
B
ORIGIN
As is characteristic of principles of law, the precautionary principle has developed in an
incremental fashion.7 The precautionary principle is said to have its origins in the German
concept „Vorsorgeprinzip,‟ a concept which is literally translated as the ‗precaution‘ or
‗foresight‘ principle and which has been employed in German regulations since the 1970s.8
It has been both an express and implicit part of numerous international treaties and
conventions on environmental law since the 1980‘s.9 In the European context, the principle
is enshrined in article 174(2) of the EC Treaty, which states that:
Community policy on the environment shall aim at a high level of protection taking into
account the diversity of situations in the various regions of the Community. It shall be
based on the precautionary principle and on the principles that preventative action should
be taken, that environmental damage should as a priority be rectified at source and that the
polluter should pay.
Article 174(2) is addressed to Community institutions and requires that community policy on
the environment be made in light of the principles set out therein. The exact legal force of
that provision has been much debated however. In one view, it is contended that the strong
wording of article 174(2) –―shall be based on‖- indicates that the provision is legally binding,
placing an obligation on Community institutions to apply the principles when developing
environmental policy.10 It is accepted that this obligation can, in certain circumstances, be
departed from however.11 It is this possibility for exemptions and derogations that leads
Krämer to voice the opposing view that principles are not legally binding in nature, being
merely ―general guidelines for Community environmental policy.‖12 However, as one
commentator points out, while the principles in article 174(2) may be too indeterminate to be
5 For an analysis of the precautionary principle as a postmodern approach to law see N de Sadeleer
Environmental Principles; From Political Slogans to Legal Rules (Oxford University Press Oxford 2005).
6 ibid n 4.
7 G Winter ‗The Legal Nature of Environmental Principles in International, EC and German Law‘ in M Rory ed
Principles of European Environmental Law (Europa Law Publishing 2004).
8 For example the ‗Vorsorgeprinzip‟ can be seen in Germanys Clean Air Act, 1974.
9 See, inter alia; Montreal Protocol on Substances that Deplete the Ozone Layer, 1987; The Rio Declaration on
Environment, 1992; Cartegena Protocol on Biosafety, 2000.
10 de Sadeleer (n 5) 321.
11 ibid 322.
12 L Krämer EC Environmental Law 4th ed (London Sweet and Maxwell 2000) 10.
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relied on as the basis for a claim relating to an omission to act, ―the EC Courts have already
demonstrated that there is a possibility to review secondary legislation according to article
174(2) principles.‖13 A number of these cases will be considered. First, however, it is
necessary to set out the rationale behind the precautionary principle.
C
AIM
It may be said that the aim of the precautionary principle is to facilitate decision-making in
the face of uncertainty. Put simply, it allows public authorities to choose the ‗better safe than
sorry‘ option. It should be noted that, although the introduction of precaution provides more
freedom for decision-makers, under article 174(3) Community institutions are still obliged to
have regard to, inter alia, available scientific and technical data and to take account of the
potential costs and benefits of choosing to act or not.14 Thus the precautionary principle
doesn‘t give authorities a carte blanche under which scientific knowledge can be ignored or
disproportionate measures taken.15 However, the principle does essentially ensure that a lack
of conclusive evidence regarding possible threats to health or the environment is not relied on
as the reason for not taking action to prevent harm.16 This objective was the exact foundation
upon which the European Court of Justice (ECJ) formed its decision in Case C-180/96 United
Kingdom v Commission, (the ‗BSE case‟); a case which is lauded as being the first in which a
precautionary approach adopted by a Community institution was upheld on the basis of
article 174(2) (ex Art 130r).17 The case concerned a decision of the Commission to take
emergency measures banning the export of beef and beef products from the UK in response
to the ‗mad cow disease‘ crisis. The UK contested the decision on a number of grounds,
including that the Community had misused its powers, that the ban was an unjustified
restriction of the free movement of goods within the Community and that the measures taken
by the Commission were in breach of the principle of proportionality. 18 However, the court
did not agree, holding that ―[w]here there is uncertainty as to the existence or extent of risks
to human health, the institutions may take protective measures without having to wait until
the reality and seriousness of those risks become fully apparent.‖19 Although the ECJ never
referred explicitly to the principle of precaution, it explained that the approach it took was
borne out of article 130r EC Treaty (now article 174(2)), in which the principle of precaution
is set down.
D
SCOPE
There is no doubt that the precautionary principle is now well established as a relevant
principle of Community environmental law. However aside from its brief mention in article
174(2), the precautionary principle is not further referred to or defined in the EC Treaty.
Thus the true nature and scope of the precautionary principle from a European perspective is
13 de Sadeleer (n 5) 322-3.
14 S Tromans ‗High Talk and Low Cunning: Putting Environmental Principles into Legal Practice‘ (1995)
JPEL 779, 782.
15 ibid.
16 E Fisher ‗Is the Precautionary Principle Justiciable?‘ (2001) 13(3) JEL 315, 316.
17 Case C-180/96 United Kingdom of Great Britain and Northern Ireland v Commission of the European
Communities ECR I-2265. See also Case C-157/96 National Farmers Union and Others [1998] ECR I-2211
18 Case C-180/96 United Kingdom of Great Britain and Northern Ireland v Commission of the European
Communities [1998] ECR I-2265, para 31.
19 ibid para 99.
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to be discerned by looking at the principle in context and analysing how it has been applied
by both the judiciary and the legislature. This analysis is usefully supplemented by the
Commissions Communication in 2000, which shed some light on what the principle means
by offering definitions and guidelines for its application.20 According to the Commission the
application of the precautionary principle is envisaged:
where scientific evidence is insufficient, inconclusive or uncertain and there are indications
through preliminary objective scientific evaluation that there are reasonable grounds for
concern that the potentially dangerous effects on the environment, human, animal or plant
health may be inconsistent with the chosen level of protection.21
As can be seen from the above quote, the scope of application of the principle extends
beyond the strictly environmental sphere as set down in article 174(2), encompassing effects
on human and animal health also. This extension is said to be validated by article 6 EC
Treaty which calls for the integration of environmental protection requirements into the other
policies and activities of the Community.22 Consequently, the precautionary principle has
been relied on in a number of cases concerning human health, including the aforementioned
BSE case and cases concerning the use of antibiotics as additives in animal feed. 23 In an
express recognition of this more expansive interpretation of the precautionary principle, the
Court of First Instance (CFI) has declared that ‗the precautionary principle can be defined as
a general principle of Community law requiring the competent authorities to take appropriate
measures to prevent specific potential risks to public health, safety and the environment.‘24 - a
pronouncement which shows how the principle‘s scope now extends far beyond its original
settings.
E
APPLICATION
The precautionary principle is applied in the general framework of risk analysis.25 Whether
the principle applies purely to the risk management element of risk analysis or to the whole
process, including risk assessment, has been the subject of some debate. 26 However it seems
clear that, at the very least, the precautionary principle operates as a risk management tool,
relied on by decision-makers in deciding whether or not to act and what measures to take,
once the factors triggering the principle have been established.27 According to the
20 European Commission, Communication from the Commission on the Precautionary Principle, COM (2000)
1. (Hereafter referred to as the ‗Commission‘s Communication‘).
21 ibid 8.
22 Case T-13/99 Pfizer Animal Health SA v Council of the European Union [2002] ECR II -3305, at 114. See
also Douma Wybe ‗Fleshing out the Precautionary Principle‘ (2003) 15(3) JEL 372, 398.
23 BSE cases: C-157/96 National Farmers Union and Others [1998] ECR I-2211; Case C-180/96 United
Kingdom of Great Britain and Northern Ireland v Commission of the European Communities. Antibiotic Cases:
Case T-13/99 Pfizer Animal Health SA v Council of the European Union [2002] ECR II -3305; Case T-70/99
Alpharma Inc v Council of the European Union [2002] ECR II-3495.
24 Joined Cases T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00 and T-141/00 Artegodan GmbH v
Commission [200] ECR II-4945, para 184.
25 Commission‘s Communication (n 20) 13.
26 Compare the opinion of the Commission that the precautionary principle has nothing to do with risk
assessment (Commission‘s Communication p 13), with the views expressed by Fisher (n 16) and de Sadeleer (n
5) 186. De Sadeleer in particular opposes the Commissions stance that the precautionary principle applies
narrowly to risk management alone, arguing that the principle influences, or at least should influence the
methodology of risk assessment also.
27 (n 20) 13 ff.
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Commission, these factors include the initial identification of a potential hazard, followed by
a scientific evaluation of that hazard including an assessment of risk, which aims to set out
the probability of adverse effects and the severity of those effects. This risk assessment is to
be as comprehensive as possible, consisting of hazard identification and characterisation,
appraisal of exposure and risk characterisation.28 Finally some scientific uncertainty must
exist, for example a gap in data or disputes over existing data, which makes it impossible to
determine with sufficient certainty the risk in question.
It is this uncertainty, establishing a potential risk, which is the ‗triggering factor‘ for
the precautionary principle. 29 Uncertainty, however, is of course inherent in the concept of
risk; where the slightest doubt exists as to whether an event will occur, risk is present. Thus,
in order to prevent the precautionary principle from becoming inoperable, efforts have been
made to create classification systems to distinguish various types of risks and to better clarify
the type of risk the precautionary principle applies to.
F
RISK THRESHOLD – UNCERTAINTY
There are numerous theories in existence which attempt to elaborate the concept of risk. One
such formulation categorises risk in terms of dangers or certain risks, uncertain risks and
residual risks.30 In this model, certain risks are risks which are certain to the extent that their
impact and probability are known, however they are still classifiable as ‗risks‘ as it is not sure
exactly when the impact will happen.31 Where a certain risk is at issue, preventative
measures are justified under the principle that preventative action should be taken, leaving no
need for recourse to the principle of precaution. At the other end of the scale are residual
risks, which have been described as ―risks resting on purely speculative considerations
without any scientific foundation.‖32 The rate of scientific development and research today
has given rise to an abundance of new risks, so that it is hard to know which risks are real and
which are hypothetical.33 To allow every risk of mere hypothetical or speculative nature to
be subject to precautionary measures would surely stifle innovation and scientific progress.
Thus residual risks do not attract either the principle of precaution or prevention; they must
simply be tolerated by society.34 Finally, falling somewhere in between the above two
extremes are uncertain risks, neither hypothetical nor fully known. It is this category to
which the precautionary principle applies.35
The various categories of risk and their significance to the precautionary principle
have also been considered by the European judiciary, although not necessarily using the same
terms of classification.36 Earlier decisions, such as the BSE case, stating only that
Community institutions do not need to wait until the reality and seriousness of the risk are
fully apparent before taking measures, made for a somewhat ambiguous guide to what is
required by way of risk, allowing decision-makers an almost unlimited discretion as to the
28For definitions of the various components of risk assessment see the Commission‘s Communication 29.
29 (n 20) 13.
30 de Sadeleer cites A. Reich, Gefahr-Risiko-Restrisiko (Werner Düsseldorf 1989) as one source for the
distinction between ‗Dangers‘ (Gefahren), ‗Residual Risks‘ (Restrisiko) and ‗Risks‘ (Risiko) upon which his
own theory is based; (n 5) 156.
31 ibid 158.
32 ibid.
33 ibid 152.
34 ibid 157-8.
35 ibid 157.
36 The CFI have preferred to distinguish ‗risks‘, ‗hazards‘ and ‗hypothetical risks.‘ See, for example, Case T13/99 Pfizer Animal Health SA v Council of the European Union [2002] ECR II -3305.
118
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kind of risks against which they could take precautionary measures. However, the issue has
since been more fully discussed, most notably in the important case of Pfizer Animal Health
SA v Council.37 That case arose out of the Council‘s decision to ban the use of the antibiotic
virginiamycin in animal feed. 38 Concern had been growing that the use of such antibiotics
was increasing resistance to those antibiotics in humans, based on the assumption that
resistance in animals is transmissible to humans.39 The decision was taken on a
precautionary basis, as it was common ground that at the time the measure was adopted
neither the reality nor the seriousness of the risk had been scientifically proven.40 Pfizer
contested the decision, arguing, inter alia, that it was a misapplication of the precautionary
principle, as the Council did not correctly assess the risk and applied an illegitimate ‗zero
risk‘ test.41 Further, it was argued that the measures were adopted without proper scientific
basis, as, according to Pfizer, the current scientific knowledge on the matter was ‗either
totally absent or inadequate‘.42 Interestingly, when asked at the hearing what amount of
proof would suffice before authorisation could be withdrawn, Pfizer stated: ―It would be
proven with the first dead man. It would be proven with the first infection, or with the first
proof of colonisation, or the first proof of transfer in a human.‘43
Unsurprisingly, any idea that Community institutions have to wait until people are
dying or at least harmed before they can ban a substance was categorically rejected by the
CFI.44 In delivering its judgment, the court began by confirming the decision in the ‗BSE
case‟ that, on the basis of the precautionary principle the Community institutions did not have
to wait until the reality and the seriousness of the risks were fully apparent before taking
preventative action.45 However it went on to state that precautionary measures ―cannot
properly be based on a purely hypothetical approach to the risk, founded on mere conjecture
which has not been scientifically verified.‖46 It follows that this judgment appears to have set
down slightly higher threshold for judging whether the principle can apply than the cases
preceding it. Relying on the Commission‘s Communication, the CFI made it clear that before
any preventative action can be taken a risk assessment is necessary, which involves first
determining the degree of risk acceptable - which cannot be at ‗zero-risk‘ level - and then
37 Case T-13/99 Pfizer Animal Health SA v Council of the European Union [2002] ECR II –3305.
38 Council Regulation (EC) No 2821/98 of 17 November 1998 amending, as regards withdrawal of the
authorisation of certain antibiotics, Directive 70/524/EEC concerning additives in feedingstuffs, [1998] OJ
L351/4.
39 The fear was that the heightened resistance of humans to the antibiotics they were exposed to after
consuming the animals would decrease the effectiveness of those antibiotics when used to fight bacteria in
humans and thus give rise to complications in the treatment of disease which could ultimately be fatal to
humans. There was also concern about ‗cross-resistance‘; a phenomenon whereby ‗a bacterium resistant to one
member class of antibiotics may also become resistant to other antibiotics of the same class‘. See Case T-13/99
Pfizer para 32.
40 Case T-13/99 Pfizer para 113.
41 ibid para 32.
42 ibid para 50.
43 ibid para 379. However the first sentence of that quote has since been removed from the judgment, at the
request of Pfizer, and so is not to be found on the website at present. See case analysis by Wybe Douma, ibid (n
22) 399.
44 Case T-13/99 Pfizer para 388.
45 ibid para 139.
46 ibid para 143. On this point, see also Case T-70/99 Alpharma Inc v Council of the European Union [2002]
ECR II-3495, para 156. Although issued a year earlier, the Commission‘s Communication appears to be in line
with these decisions as it states that the precautionary principle may be applied where ‗reasonable grounds for
concern‘ exist; a requirement which effectively rules out hypothetical or speculative risks. See Commission‘s
Communication (n 10) 8.
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conducting a scientific assessment of the risks.47 Although conclusive evidence is not
required, the court stated that the risk must be ―adequately backed up by the scientific data
available at the time when the measure was taken.‖48 Accordingly, where there is ‗basic
scientific knowledge‘ on which to ground the risk, although the data has not yet been fully
validated, the risk is ‗uncertain‘ in terms of the classification mentioned earlier and the
precautionary principle can apply. 49
The requirement for precautionary measures to have some basis in available scientific
data raises questions regarding the comparative weight of different scientific opinions and
forms of data and the level of freedom competent authorities enjoy in choosing one opinion
over another. Crucially, it would appear that the scientific knowledge forming the basis for
concern about a potential risk need not be the majority view on the subject. 50 As noted in the
Commission‘s Communication, due account is to be taken of scientific opinions that have the
support of only a minority fraction of the scientific community, with the important proviso
that ―the credibility and reputation of this fraction are recognised.‖51 On a similar note, the
CFI has emphasised the broad level of discretion enjoyed by Community institutions in
taking decisions on precautionary measures, and it was held in Pfizer that the Council was
free to follow an opinion other than that of their scientific advisory body, SCAN, once
specific reasons were given.52 However, the expert scientific evidence that is relied on
instead must be the result of a proper and impartial examination, meeting the requirements of
―excellence, independence and transparency.‖53 Ultimately, it appears that the most
important factor will be that a given measure is taken in light of ―the best scientific data
available and the most recent results of international research.‖54 These safeguards
purportedly justify the wide discretion then left to Community institutions and the limited
scope of review of decisions, which will only be overturned on grounds of manifest error,
misuse of powers or where the bounds of discretion have been clearly exceeded.55
G
RISK THRESHOLD – DEGREE OF DAMAGE REQUIRED
In addition to the uncertainty thresholds mentioned above, another threshold that may be
applied to delineate the scope of the precautionary principle, relates to the degree of damage
that is foreseen as a result of the potential risk. Thus a precondition to the application of the
principle may be that the impact resulting from the risk be significant, severe or persistent or
irreversible.56 The precautionary principle in international law often comes with such words
of qualification. For example the 1992 Rio Declaration on Environment and Development
states at principle 15 that: ―Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing cost-effective measures to
47Case T-13/99 Pfizer, para 149. The CFI cites the Commissions Communication as the source for its
description of what risk assessment involves.
48 ibid para 144.
49 Nicolas de Sadeleer ‗The Precautionary Principle in EC Health and Environmental Law‘ (2006) 12(2) Env
Law Journal 139, 148.
50 (n 20) 17.
51 ibid.
52 Case T-13/99 Pfizer, para 199.
53 ibid paras 158, 159 and 268.
54Case T-70/99 Alpharma, para 171 and 175 ; Case C-192/01 Commission of the European Communities v
Kingdom of Denmark, ECR I-9693 para 51.
55 Case T-13/99 Pfizer para 169; Case T-70/99 Alpharma para 180.
56 See discussion by de Sadeleer ( n 5) 161-167.
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prevent environmental degradation‖57 (emphasis added). Similarly, the 1992 UN Convention
on Biological Diversity anticipates a precautionary approach where there is a threat of a
significant reduction or loss of biodiversity.58
As article 174(2) doesn‘t define the precautionary principle, it comes as no surprise
that it does not set down comparable words of qualification. In the absence of an express
guideline, it appears from the case law that the question that must be asked is; ‗what level of
risk is acceptable for society?‘ In Pfizer, the court made it clear that ―it is for the Community
institutions to determine the level of protection which they deem appropriate for society‖
against which the acceptableness of risks is measured.59 Determining the degree of risk that
is unacceptable may involve looking at the severity of the impact were the risk to occur, the
persistence of the impact. 60 Ultimately, the decision is political in nature, and the kind of
risks deemed to require precautionary measures will be ―influenced by prevailing social and
political values.‖61
H
PRINCIPLES OF APPLICATION
The Community institutions‘ broad discretion in setting standards of protection can be said to
be due to the fact that such institutions are under an obligation to ensure a high level of
protection for both the environment (article 174(2) EC Treaty) and human health (article
152(1) EC Treaty). However, a zero-risk approach is clearly untenable. Risks exist in
everyday life; if we were to only proceed where we could be guaranteed no risks at all we
would be very limited in our actions. Moreover, as noted above, the CFI in Pfizer expressed
the view that a ‗zero-risk‘ test is not an appropriate test for a public authority to apply.
Similarly, the Commission has stated that aiming at ‗zero-risk‘ would not be compatible with
the principle of proportionality, a long-standing general principle of Community law that
applies to all risk management measures.62 The principle of proportionality is one of a
number of general principles of risk management, which the Commission maintains should
always apply when precautionary measures are taken.63 Other principles include that of nondiscrimination, consistency and a cost/benefit analysis of action or inaction. It should be
noted, however, that this cost/benefit analysis is to be viewed in the light of the decisions of
the European judiciary, which make it clear that the protection of public health takes
precedence over economic considerations.64
The Commission‘s Communication goes on to state that measures based on the
precautionary principle should be ―capable of assigning responsibility for producing the
scientific evidence necessary for a more comprehensive risk assessment.‖65 One way this is
done is by shifting the burden of proof so that responsibility for producing evidence
demonstrating the safety of a particular substance or product lies with the producer,
manufacturer or importer.66 This is the case where prior approval schemes exist, under which
certain substances (eg pesticides, drugs or food additives) are deemed initially to be
57 Rio Declaration Environment and Development, adopted during the United Nations Conference on the
Environment and Development (UNCED) 1992.
58 Preamble to the 1992 UN Convention on Biological Diversity.
59 Case T-13/99 Pfizer, para 151.
60 ibid para 153.
61 (n 20) 10.
62 (n 20) 18.
63 ibid.
64 Case T-13/99 Pfizer para 456.
65 (n 20) 4.
66 ibid 21.
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hazardous substances until the contrary is proven.67 So, for example, the new REACH
regulation on chemicals requires that those proposing to manufacture or use certain chemicals
must demonstrate that they can be used safely before they will be authorised by the
authorities.68 This wholly reverses the burden of proof as, previously, the onus was on
regulatory authorities to demonstrate that a chemical was unsafe before its use could be
restricted.
I
PRECAUTIONARY ACTIONS OF MEMBER STATES
It is clear from the discussion above that the Community institutions play a large role in
setting the standards for acceptable risks in society. However, where a matter is not subject
to harmonisation at EU level it would appear that it is for Member State(s) themselves to
determine the level of protection appropriate for their citizens and the level of risk they are
willing to accept.69 This can be quite controversial as, often, the measures taken by a
Member State in response to perceived risks can be tantamount to an obstruction of the free
movement of goods in the internal market. This was the case in Case C-473/98
Kemikalieinspektion v Toolex, where the ECJ upheld Sweden‘s decision to ban the industrial
use of the toxic substance trichloroethylene on the basis of the precautionary principle.70 It
was accepted that the ban amounted to a restriction of free trade contrary to article 28 EC
Treaty. However, the ECJ took account of the evidence submitted by Sweden concerning
links between the use of trichloroethylene and the development of cancer in humans. In
particular, it noted the fact that it was not possible at present to determine the threshold level
above which exposure to the substance would pose a serious health risk to humans.71 As
there were no Community rules harmonising the use of trichloroethylene, the court held that
article 30 of the EC Treaty was applicable, under which the ban was justified on the grounds
of protection of health and life of humans, animals or plants.72
Toolex is to be contrasted with the situation in Case C-6/99 Association Greenpeace
France v Ministére de l‟Agriculture et de la Péche however. There, the ECJ had to consider
whether interpreting certain provisions of Directive 90/220/EEC in such a way as to oblige
Member States to give consent to a product that has received a favourable opinion from the
Commission would be to disregard the precautionary principle. 73 The court noted that the
approval of the product at issue (genetically modified organisms (GMOs)) was the subject of
harmonised legislation, which already reflected the precautionary principle in a number of its
provisions.74 As such, once the provisions of the Directive have been complied with Member
States were not allowed to refuse consent on the basis of the precautionary principle.75
Toolex and Greenpeace both concerned situations where national competent
authorities elected to take precautionary measures. However, the imperative nature of the
67 ibid.
68 REACH Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December
2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH).
69 de Sadeleer (n 49) 163.
70 Case C-473/98 Kemikalieinspektion v Toolex Alpha AB [2000] ECR I-5681.
71 ibid para 45.
72 ibid para 49.
73 Case C-6/99 Association Greenpeace France v Ministere de l‟Agriculture et de la Peche [2000] ECR I-1651.
74 ibid para 41-47. Amongst others, the Court referred to art 12(4) which sets down an obligation to inform the
Commission of new information regarding risks and the safeguard clause in art 16 which allows Member States
to provisionally prohibit or restrict the use or sale of a product on its territory where it has justifiable reasons to
suggest that it constitutes a risk to human health or the environment.
75 Case C-6/99 Greenpeace, para 42, 43 and 44.
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precautionary principle at domestic level (ie how and when Member States can be obliged to
take precautionary measures) is somewhat uncertain. It is clear that the principle may be
relied on in national courts to challenge decisions taken on the basis of EC legislation
incorporating the principle, either expressly (for example in the 2001/18/EC Directive on
deliberate release of GMOs) or implicitly (for example Habitats Directive 92/43/EEC76).
One recent example is the case of Downs v Secretary of State for the Environment, Food and
Rural Affairs.77 That case concerned a claim that the domestic regime for crop spraying in
the UK was failing to comply with EC Directive 91/414/EEC concerning the placing of plant
protection products (pesticides) on the market.78 One of the requirements of the directive was
that Member States ensure that a pesticide is not authorised unless it is established that it has
no harmful effect on human or animal health, directly or indirectly. Collins J interpreted this
to mean a prohibition of any harm that was more than merely transient or trifling, whether
chronic or not.79 Moreover, the judge stressed that ―the fundamental requirement that human
health be not harmed must … require that the precautionary principle is to be applied.‖80
Thus, as the claimant had proffered solid evidence showing that residents had suffered harm
to their health, or at the very least, raised doubts as to the safety of the pesticides, it was
considered that the precautionary principle must clearly apply. It was held that the current
controls on crop spraying did not meet the requirements of the Directive and that the
Government had to ―reconsider what needs to be done.‖81
However in the absence of EC legislation either expressly or implicitly setting out
the precautionary principle, article 174(2) does not of itself impose any particular obligation
on Member States. A leading case on this matter is R v Secretary of State for the
Environment, ex parte Duddridge82, where it was held that Article 130r (now Article 174(2))
did not impose an obligation on the Secretary of State to apply the precautionary principle
when carrying out his duties under the Electricity Act 1989. According to Smith J, the
principles in article 174(2) are merely intended to ―underlie the Community‘s environmental
policy‖ and article 174(2) was not intended to in itself create an obligation upon a Member
State to take a specific action.83 In coming to this decision, the decision of the ECJ in Case
C-379/92 Peralta was referred to, in particular at paragraph 57 where it was stated that
―Article 130r confines itself to defining the general objectives of the Community in
environmental matters‖ - a judgement which has been described as being ―fatal to an
argument that [a]rticle 130r could have direct effect.‖84
Fisher remarks that in considering the precautionary principle not to have direct
effect, the decision could be interpreted as regarding the precautionary principle in article
174(2) to be non-justiciable.85 However Fisher goes on to note that although there has been
some reluctance by national courts to accept arguments based on the precautionary principle
alone, there has been less reluctance to uphold precautionary decisions taken by public
76 The ECJ held has held that the precautionary principle underlies the Habitats Directive, although it is not
explicitly mentioned therein. See Case 127/02 Waddenzee [2004] Env LR 14.
77 Downs v Secretary of State for the Environment, Food and Rural Affairs [2008] EWHC 2666.
78 The requirements of EC Directive 91/414/EEC were applied domestically by the Plant Protection Products
Regulations 2005 (SI 2005 No. 1435).
79 [2008] EWHC 266 para 24.
80 ibid para 23.
81 ibid para 70.
82 R v Secretary of State for Trade and Industry, ex parte Duddridge, (1994) Queen‘s Bench Division, 7 JEL
224.
83 ibid 234.
84 David Hughes ‗The Status of the ‗Precautionary Principle in Law‘ (1995) 7 JEL 224, 243.
85 ibid (n 16) 323.
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bodies.86 In other words, the courts seem more willing to allow the principle to be used as a
shield rather than as a sword. However, in the more recent UK case of R v Tandridge District
Council,87 it was accepted that ―the existence of objectively unjustified fears in the locality
could, in some circumstances, be a legitimate factor for a local authority to take into account
when dealing with an application.‖88 Although the court ultimately held that it had not been
shown that the authority had not taken such local fears into account, an action may lie in
situations where an authority had simply dismissed such fears without consideration.
Turning briefly to Ireland, it may be said that there has been very little discussion
of the precautionary principle by our national courts. Nevertheless, the principle has been
influential in certain cases, without being expressly mentioned. For example, the case of
Szabo (a minor) v ESAT Digifone Ltd which concerned an application for an injunction
against the erection of the defendant‘s mobile phone base station and mast beside the
plaintiff‘s primary school on the grounds that it was dangerous to their health.89 Being a quia
timet action, the application was not based on harm actually suffered, but the threat of future
harm to plaintiffs. Unusually for an interlocutory hearing, Geoghegan J considered the
scientific evidence submitted by the parties in great detail. This was due to the highly
contested nature of the scientific evidence offered by the parties and the fact that the granting
of an injunction would be highly detrimental to the defendant‘s business. In the event,
however, Geoghegan J was not persuaded by the plaintiff‘s expert witnesses, whose methods
and sources were subject to sharp criticism by the other party‘s scientists. He stated that as
there was no ―proven substantial risk of danger‖ and it was ―highly improbable at the very
least‖ that any injury would be caused to the plaintiff pending the hearing, the application
was dismissed.90
J
CONCLUSION
The above analysis has looked at the precautionary principle in terms of the type of risk it
applies to, competent authorities‘ obligations and discretions in taking precautionary
measures and some of the effects these measures may have. Since the precautionary
principle has been in operation, it has been relied on on numerous occasions, not only at EU
level, but at domestic level also. It may be said that the principle has been put to greater use
in the areas of human health and safety than the environment, despite the latter being the area
from which it emerged.91 This is most likely due to the fact that, as noted above, the decision
to take precautionary measures is a political one and one that depends on the risks that society
are willing to tolerate.
Although the Commission‘s Communication has been useful in better defining the
precautionary principle and outlining guidelines for its application, it is submitted that the full
capacity of the principle has not yet been seen. This is an inherent difficulty with abstract
legal principles, which refer forward to the possibility of their application in a given case and
when applied in a case, refer back to their abstract meaning, so that their meaning is always
deferred.92 While this allows for greater flexibility it also creates uncertainty as to the use to
which the principle will next be put. In relation to the precautionary principle, while its exact
86 ibid 324.
87 R v Tandridge District Council and another, ex parte Al Fayed [2000] 1 PLR 58.
88 ibid 61.
89 Szabo (a Minor) v ESAT Digifone Ltd [1998] 2 ILRM 102.
90 [1998] 2 ILRM 102, 110 and 112.
91 de Sadeleer (n 49).
92 Renowned philosopher Jacques Derrida coined the term ‗deterrence‘ to describe this phenomenon.
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contours and implications are still being worked out, concerns remain that it may be used to
stifle innovation and dampen scientific progress. However, it is undeniable that in today‘s
world of fast-paced technological and scientific advances such a principle is necessary.
Socrates famously expressed wisdom to be in knowing that you do not know. The
precautionary principle can be said to reflect this philosophical position by allowing us to
accept the limitations of our knowledge and make wiser choices in light of them.
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LIMITING THE POTENTIAL FOR BYSTANDER APATHY: ON THE INTRODUCTION
OF A DUTY TO RESCUE IN INTERNATIONAL LAW
Donna Lyons *
ABSTRACT
You could read on the faces of the passers-by that we were written off as doomed. The
people of Lemberg had become accustomed to the sight of tortured Jews and they
looked at us as one looks at a herd of cattle being driven to the slaughter house. At such
times I was consumed by a feeling that the world had conspired against us and our fate
was accepted without a protest, without a trace of sympathy.
Simon Wiesenthal1
I am only one,
But still I am one.
I cannot do everything,
But still I can do something;
And because I cannot do everything
I will not refuse to do the something that I can do.
Edward Everett Hale2
A
INTRODUCTION
This article examines the concept of Good Samaritanism in national law, and contrasts this
with the recent attempts of the International Criminal Tribunals for Rwanda and Yugoslavia
to introduce the duty via international criminal law. The author assesses such developments,
in light of the psychological factors underlying the practice of bystander apathy during
periods of mass human rights violations, and consequently argues for the introduction of a
general duty to rescue in international law, separate and apart from the international criminal
justice system. In cases of mass atrocity, silence wins the day all too often. Vetlesen points
out that ‗[m]ost often, in cases of genocide, for every person directly victimized and killed
there will be hundreds, thousands, perhaps even millions, who are neither directly targeted as
victims nor directly participating as perpetrators.‘3 Widespread and systematic human rights
abuse requires malicious intent by a small number of organised and powerful individuals.
However, evil only flourishes with the indifference of the masses. Local resistance serves the
purpose of seriously damaging the success of a project of human rights abuse. Conversely,
silence legitimises. In order to counteract this phenomenon, the author argues for the
introduction of a general duty to rescue in international law. The duty at national law will be
*LLB (Dub), LLM (International Legal Studies) (NYU). The author would like to thank Mattias Kumm for
helpful comments on an earlier draft of this article. Special thanks also go to Christopher Gosnell and William
Byrne for their inspiration and support during the author‘s term at the ICTY .
1
S Wiesenthal The Sunflower: On the Possibilities and Limits of Forgiveness (Schocken Books New York
1998) 19.
2
E E Hale ‗Lend a Hand ‘ in James Dalton Morrison (ed) Masterpieces of Religious Verse (1984) 416.
3
A J Vetlesen ‗A Case for the Responsibility of the Bystander ‘ (2000) 37 Journal of Peace Research No 4 515,
520.
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analysed, followed by an examination of the psychological processes involved in bystander
apathy. The author highlights the extent the which the duty has been advocated for within
key UN institutions, in concluding that while international criminal law is not the most
appealing arena for the concept‘s introduction, it nevertheless warrants formal introduction
within our current international law framework.
B
THE DUTY TO RESCUE AT NATIONAL LAW
What is the Good Samaritan duty to rescue all about? Black‘s Law Dictionary defines Good
Samaritanism as ‗[a] law that requires a person to come to the aid of another who is exposed
to grave physical harm, if there is no danger of risk of injury to the rescuer.‘4 In short, it is a
law which requires innocent bystanders to act altruistically in situations of peril. The
doctrine is employed by a number of jurisdictions globally. France5 and Germany,6 like many
of their civil law counterparts,7 have codified a general Good Samaritan duty to assist, absent
any prior personal or legal relationship. As one author notes, in such systems:
[t]he law makers have decided that the evil of indifference to another‘s danger and consequent
failure to extinguish it is more serious than possible infringements on liberty which the
requirement of action might entail.8
Indeed, Schiff reports that ‗almost every civil law jurisdiction, in Europe, as well as in Latin
America, recognizes various types of duties to rescue…‘9 Despite the concept‘s prominence
in such systems, it is essential to note that sentences imposed for failing to rescue are lenient
in comparison to sentences imposed for perpetrating a given crime.10
The common law stands on the other side of the divide.11 Vranken points out that ‗the
common law has never really accepted the existence of a common law duty to go,
proactively, to the assistance of needy members of the general public.‘12 English law remains
essentially the same as Sir James Fitzjames Stephen described it in 1883:
[A] number of people who stand round a shallow pool in which a child is drowning, and let
it drown without taking the trouble to ascertain the depth of the water, are no doubt
shameful cowards, but they can hardly be said to have killed the child.13
4
Black‟s Law Dictionary (Thomson West St Paul Minnesota 2004).
French Criminal Code Article 223-6. Obstructing Measures of Assistance and Omission to help.
6
German Criminal Code s 323c Failure to render assistance.
7
Other civil law jurisdictions employing the concept include Italy, Spain, The Netherlands, Belgium, Norway,
Finland, Denmark, Greece, Portugal and Austria.
8
Note ‗The Failure to Rescue: A Comparative Study‘ (1952) 52 Columbia Law Review 631, 646.
9
D Schiff ‗Samaritans: Good, Bad and Ugly: A Comparative Law Analysis‘ (2006) 11 Roger Williams
University Law Review 77, 79. Jewish law also recognises a duty to assist by law.
The Torah states that ‗[thou] shalt not stand against the blood of thy neighbour.‘ Lev 19:16.
See generally, Besser and Kaplan, ‗The Good Samaritan: Jewish and American Legal Perspectives‘ (1994) 10
Journal of Law and Religion 193, 211.
10
See for example, the German Criminal Code, s 49.
11
There are but a small number of exceptions to the common law rule that strangers are under no legal
obligation to assist victims in peril, for instance, the Northern Territory of Australia, and a small subset of states
in the US (Hawaii, Minnesota, Rhode Island , Vermont, Wisconsin).
12
M Vranken ‗Duty to Rescue in Civil Law and Common Law: Les Extrêmes se Touchent?‘ (1998) 47 The
International and Comparative Law Quarterly 934, 935.
13
See Ashworth and Steiner ‗Criminal Omissions and Public Duties: The French Experience‘ (1990) 10 Legal
Studies 153,153 referring to J.F. Stephen, History of Criminal Law (1883) Volume III, 10. Despite recent
parliamentary debates in Ireland on the issue of introducing a general duty to rescue, the Law Reform
5
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What is to be made of the common law approach in comparison to jurisdictions which
encourage Good Samaritanism? There is no doubt that law, by and large, has a role to play in
shaping human conduct.
However, this only rings true in reality, it is suggested, where a basic moral framework
does not already encourage the behaviour in question. That is, a criminal prohibition on
failing to perform will have little effect where strong moral standards already dictate that
performance. Indeed, Hyman argues against the introduction of a duty to rescue since figures
in the US indicate that regardless of the law, individuals do come to the rescue of others in
time of need. He therefore concludes that ―although the no-duty rule presents a vital
intellectual puzzle for law professors, judges, and philosophers, it has no detectable influence
on the behaviour of ordinary people.‖14 The author suggests that the reason for this anomaly
is that, in practice, community morality renders the law unnecessary. It is ultimately the
existence of a set of societal norms, whatever their origin, which creates the likelihood of
altruistic behaviour. These societal norms, more often than not, are simply reflected by law
and ultimately, it is simply a lack of necessity which dictates the common law passivity.
It is this important observation which adds complexity to the debate concerning the
introduction of Good Samaritanism on an international plane. Should community morality
break down, giving rise to a lack of emphasis on local moral conditioning, the law would
become significant since it would serve the purpose of stepping in to replace the resultant
void, and to thereby reshape the behaviour of its citizens. In cases of mass atrocity, both the
legal and moral order find themselves uprooted, altered, even destroyed. Therefore, it is not
sufficient to promote the introduction of Good Samaritan laws at a national level, but rather,
to encourage their development internationally so that a higher normative system exists to
guide citizens in the midst of gross human rights abuse. This will be explored in more depth
below, following an examination of the introduction of the theory via international criminal
law.
C
DEVELOPMENTS IN INTERNATIONAL CRIMINAL LAW
The author argues that the ad hoc criminal tribunals15 have slowly and subtly begun to
introduce the doctrine of Good Samaritanism into international criminal law. 16 In such a
setting, however, liability for failing to rescue can possess a number of different labels,
leading to a dangerous situation whereby omission becomes synonymous with commission,
and unduly burdensome sanctions are handed down as a result.
International law criminalises omissions in a number of ways, the most prominent of
which are the doctrines of command responsibility and joint criminal enterprise (JCE). It will
be argued that a number of cases dealt with by the ICTR and the ICTY have stretched the
definition of these doctrines in order to cater for a general duty to rescue in international
criminal law. Cassese points out that international crimes ‗tend to be expression of collective
Commission has reported that ‗[t]here should be no reform of the law to impose a duty on citizens in general, or
any particular group of citizens, to intervene for the purpose of assisting an injured person or a person who is at
risk of such an injury.‘-Consultation Paper on Civil Liability of Good Samaritans and Volunteers (Nov 2007)
(LRC CP47-2007) 127.
14
ibid 716.
15
The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal
Tribunal for Rwanda (ICTR) in particular.
16
While many prominent UN actors have advocated for Good Samaritan-type laws as between states (the
doctrine of ―Responsibility to Protect,‖ for instance), it is the international criminal tribunals which have
vindicated its application at an individual level.
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criminality…When such crimes are committed, it is extremely difficult pinpoint the specific
contribution made by each individual participant in the criminal enterprise.‘17 JCE holds
individuals equally responsible for a criminal action if they (i) participate in the action,
whatever their position and the extent of their contribution; and in addition (ii) intend to
engage in the common criminal action. Therefore they are all to be treated as principals.18
Cassese suggests that such individuals must share liability whatever their role because (i)
each of them is indispensable for the achievement of the final result; and on the other hand
(ii) it would be difficult to distinguish the degree of criminal liability as between each, except
for sentencing purposes.19 The defendant need not have materially participated in the
commission of the crime, but must substantially contribute to its facilitation. However, the
notion of ―substantial contribution‖ has been broadly interpreted by the courts. Indeed, Zahar
and Sluiter note that what such contribution requires remains unresolved.20
In the case of Kvočka21 it was held that a person may be considered as part of a JCE
based on his or her intent as well as a substantial contribution to the system, even if that
person had no previous links with the system. It has also been held that an individual who is
a member of a JCE can be held responsible for acts which are committed by other members
which do not constitute part of the initial plan. Therefore, in the 2006 case of Karemera et
al22 the ICTR Appeals Chamber held that this notion can encompass crimes in vast criminal
enterprises; where crimes are geographically or structurally remote from the accused. This
same view was taken by the ICTY in its 2007 case of Brđanin.23 Cassese aptly points out
that ‗[t]his broadening of the notion under discussion is excessive and raises doubts about its
consistency with the nullem crimen principle and the principle of personal responsibility.‘24
The flexibility with which the doctrine of JCE is applied raises serious questions
regarding the scope of personal responsibility for those peripherally involved in the collective
perpetration of mass atrocity. Much of the determination for inclusion in the JCE turns upon
the intent of the defendant: after this is established, ―substantial contribution‖ appears to
require very little. Therefore, it would seem that negative sentiments, in addition to a failure
to display resistance to the crimes of others, is activity enough to be placed within the sphere
of JCE. This approach suggests that the tribunals are seeking to prohibit behaviour which
facilitates mass atrocity, rather than directly causing it. This said development is particularly
relevant to the doctrine of command responsibility.
Cassese points out that command responsibility has developed into a customary rule
(i) imposing on military commanders as well as civilian leaders the obligation to prevent or
repress crimes by their subordinates if they knew or should have known that the troops were
about to or were committing or had committed crimes; and (ii) criminalizing the culpable
failure to fulfil this obligation, albeit without clearly outlining the mental element of such
criminal liability.25 The doctrine originates in articles 7(3) and 6(3) of the Statutes of the
ICTY and ICTR respectively, as well as article 28 of Rome Statute of the International
Criminal Court. The conditions for liability consist of (a) the commission of international
crimes by troops or subordinates; (b) effective command and control over those subordinates;
17
A Cassese International Criminal Law 2nd ed (Oxford Oxford University Press, 2008) 189.
ibid 190. Italics in original.
19
ibid 191.
20
Zahar and Sluiter International Criminal Law: A Critical Introduction (New York Oxford University Press
2008) 241.
21
Kvočka et al (Judgement) ITCY-98-30/1 (28February 2005).
22
Karemera et al (Judgment) ICTR-98-44-T.
23
Cassese (n 17) 211.
24
ibid 195.
25
ibid 241.
18
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(c) knowledge (or constructive knowledge) or breach of obligation to acquire such
knowledge, and (d) a failure to act.26
The doctrine has been expanded to include non-military commanders: in Delalić27 it
was held that liability could accrue simply where the individual in question had a ‗material
ability to prevent and punish the commission of offences‘28 even where that person was not a
military superior. In Nahimana et al29 the ICTR found that the defendants were guilty of
public incitement to commit genocide for their supposed superior-subordinate relationship to
the radio station RTLM, whose broadcasts allegedly instigated genocide, despite the fact that
the defendants were absent for the majority of the period under examination.30 Zahar and
Sluiter therefore cogently argue that the tribunals have pushed the doctrine ‗beyond its
limits.‘31
In Blaškić32 the doctrine of command responsibility was expanded to impose a duty
on superiors to safeguard the welfare of those under the control of one‘s subordinates.
Failure to adhere to this requirement, according to Blaškić, would result in liability for the
commission of crimes under article 7(1) of the Statute of the ICTY.33 This constitutes a very
wide interpretation of article 7(1), insofar as omission is sufficient to ground its operation. In
Jean Mpambara34 the Trial Chamber of the ICTR rejected this conclusion,35 stating that
liability for failure to prevent or punish is a wholly separate category of liability from that of
simple commission. However, as Rana questions:
[I]t is still not clear whether omission of failure of duty to prevent or punish will be
considered as part of [a]rticle 6(1) of the statute as done by the other trial chambers
[Blaškić] or will it be considered as a different species of crime as concluded by the trial
chamber in this case?36
In the recent ICTY case of Mrksic, the Appeals Chamber held that failure to fulfil
the obligation to safeguard prisoners in one‘s custody can also be described as ‗aiding
and abetting by omission,‘ expanding the traditional definition of aiding and abetting
significantly.37
In the case of Popovic et al.,38 currently before the Trial Chamber of the ICTY, the
prosecution has gone further by claiming, independent of the defendant‘s alleged culpability
under the doctrines of JCE and command responsibility, that he had a legal duty to protect
26
ibid 247-249.
Delalić (Judgment) IT-96-21-T (16 November 1998).
28
ibid.
29
Nahimana et al (Judgment) ICTR-99-52-A (28 November 2007).
30
Cassese (n 17) 266.
31
ibid 271.
32
Blaškić (Judgment) IT-95-14-T (17 June 1996).
33
Art 7(1) of the Statute of the International Criminal Tribunal Yugoslavia provides thus:
‗A person who planned, instigated, ordered, committed or otherwise aided and abetted in the
planning, preparation or execution of a crime referred to in arts 2 to 5 of the present Statute, shall be
individually responsible for the crime.‘
34
Jean Mpambara (Judgment) ICTR-2001-65-I (11 September 2006).
35
ibid para 39 ‗[b]y conflating these two tests, the Prosecution comes perilously close to equating the failure to
prevent or punish a crime with the commission of that same crime through a joint criminal enterprise. The
Chamber emphatically rejects this approach. Failure to prevent or punish a crime cannot be characterized as a
form of commission of that same crime.‘
36
Rajat Rana ‗The Jean Mpambara Case: Outlining ‗Culpable Omissions‘ International Criminal Law‘ (2007)
6(2) Chinese Journal of International Law 439.
37
Mrkšić et al (Judgment) IT-95-13 para 49 (5 May 2009).
38
Trbić (Indictment) IT-05-88 (18 August 2006).
27
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prisoners of war from harm ―from his own troops and others‖39 even if the defendant did not
necessarily have a pre-existing duty to come to their assistance within the remits of traditional
legal doctrine.
Such recent developments suggest that the ad hoc tribunals are eager to find a way of
imposing liability for failure to intervene in individual cases of human rights abuse. Should
this become a regular occurrence, there is no reason to doubt that the International Criminal
Court would also follow suit. Creating such a concept via this avenue is dangerous, however,
on the basis that the sanctions imposed are unduly burdensome. Therefore, it is suggested
here that in order to avoid the further arbitrary expansion of the concept, an explicit decision
ought to be taken by states to introduce the doctrine formally at an international level.
D
WHITHER?
In order to propose developments for this crucial area of international law, it is important to
first understand how the practice of bystander apathy occurs in the first place. Therefore, this
section examines the psychological factors involved in the failure to rescue, and in turn
suggests the most desirable route for international law to take to tackle the phenomenon at a
grassroots level.
1
Understanding Bystander Apathy from a Psychological Perspective
Those who now learn of these events ask themselves why those who knew did not speak;
they affirm that silence became complicity; they suspect that silence is as awful as the
discoveries about those dreadful years that come to light day after day.40
Why is it an all too common occurrence that vast numbers of people are capable of
indifference while their fellow human beings are assaulted, tortured, raped and killed? The
instinctive answer to this question is that fear inhibits resistance. However, while the
instillation of fear may be a feature of oppressive regimes, the widespread failure to object is
commonly the result of more complex psychological processes. A number of common
psychological factors will be explored here, which serve to explain the prevalence of
bystander apathy in the face of mass atrocity.
According to Latane and Darley,41 the fulfilment of five steps is required before a
person will render assistance to another in time of emergency. The bystander must (1) notice
that something is happening; (2) interpret the event; (3) decide that he has a responsibility;
(4) decide what form of assistance to render; and (5) decide how to implement the assistance.
Stohl notes that social scientific research subsequent to this study has solely served the
purpose of confirming its findings.42 In the case of widespread and systematic human rights
abuse, steps (2) and (3) are the primary obstacles to intervention. As a result of mass
communication, step (1) is not difficult to accomplish, both locally and internationally.
Furthermore, where (2) and (3) are left unfulfilled, steps (4) and (5) are rendered
inconsequent. Therefore, it is the interpretation of the event in question and the assumption
39
ibid 92 (emphasis added).
J Timerman ‗Return to Argentina‘ The New York Times Magazine (New York, United States of America 11
March 1984) 39.
41
B Latane & JM Darley ‗Bystander Apathy‘ (1969) 57(2) American Scientist 244.
42
M Stohl ‗Outside of a Small Circle of Friends: States, Genocide, Mass Killing and the Role of Bystanders‘
(1987) 24(2) Journal of Peace Research 151, 159.
40
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or otherwise of responsibility which requires attention. The typical bystander fails to
overcome these critical hurdles for a number of reasons – reasons which will be analysed in
what follows.
First, ideology, frequently employed as a powerful tool in oppressive regimes, serves
to create a differentiation between two groups of individuals: us and them.43 Tajfel has
produced important work in this area, revealing that humans will favour their ‗own‘ over
others on the basis of minimal categorisation.44 Categorisation allows individuals to
strengthen their self-concept and to introduce power and harmony into the group. This is
frequently learnt as part of family and community life and, according to Staub, ‗having learnt
to make differentiations between ingroups and outgroups, people will naturally create them
under novel circumstances.‘45 The downside of this tendency is the fact that the other
becomes devalued, blamed for conditions which are not necessarily attributable to him, and,
in the extreme, dehumanised. It is therefore unsurprising that where ideology is proliferated
by those in power, with negative intentions, it is often accepted without significant resistance.
If the other, the enemy, is not considered human, any interpretation of the enemy‘s
victimisation is warped, and an assumption of responsibility is not considered necessary.
Even if the social images are alarming to the onlooker at first, dehumanisation coupled with
routinisation dispels this alarm over time. Sheleff reports that ‗to relate to such victims
requires that spatial barriers and social differences be discounted, and that the victims, for all
their anonymity and distance, be seen essentially in human terms.‘46 This identification is
lost where ideology serves to dehumanise the targeted group, and thus hurdles (2) and (3)
automatically impede the likelihood of intervention.
Second, the mind‘s inherent need to rationalise negative acts often leads individuals to
conclude that such acts are, in some sense, justly imposed. From the perspective of
bystanders, therefore, victims are often considered to be constructively liable for their own
fate. Lerner refers to this enigma as ‗just world thinking.‘47 Staub claims that while this is a
common phenomenon, it can be counteracted by providing information to onlookers
regarding the innocence of victims.48 If just world thinking is allowed to prevail without
evidence to the contrary, however, hurdle (3) will not be surpassed because responsibility
will not be taken for those who have purportedly contributed to their own misfortune.
Third, obedience to authority and to normative pronouncements is a natural
psychological tendency. It is easier to obey authoritative statements than to pragmatically
and morally evaluate individual situations. As Staub suggests:
[S]ocial reality is much less clear than physical reality, and we accept others‘ definition of it
even more easily, particularly if cultural values or an ideology or devaluation of the
persecuted support it.49
43
Staub refers to these groups as the ―ingroup‖ and the ―outgroup‖. See Ervin Staub The Roots of Evil: The
Origins of Genocide and Other Group Violence (Cambridge Cambridge University Press 1992).
44
For instance, the like or dislike of a certain painter was enough for individuals to favour their own group.
Staub(n 44). See also: Tajfel, H., Billig, M., Bundy, R. P. & Flament, C Social Categorization and Intergroup
Behaviour‘ [1971] European Journal of Social Psychology, 2 and Tajfel ‗Social Psychology and Intergroup
Relations‘ [1982] Annual Review of Psychology, 33.
45
Staub (n 44) 66.
46
Sheleff The Bystander (Lexington Lexington Books 1978) 192.
47
Lerner and Simons Observer's Reaction to the ‗Innocent Victim‘: Compassion or Rejection?‘ [1966] Journal
of Personality and Social Psychology, 4, 203-10. See also: Lerner and Simmons The Belief in a Just World: A
Fundamental Delusion (New York Plenum Press 1980).
48
Staub (n 44) 67.
49
Staub (n 44) 78.
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In short, we are all too willing to accept authoritative ‗clarifications.‘ Indeed, social scientific
studies point to the fact that ‗altruistic behaviour is dictated by societal norms.‘50
Kelman reports that three factors give rise to the silencing of the masses:
authorisation, routinisation and dehumanisation.51 The latter two factors have been discussed
to above. Authorisation plays a pivotal role in the proliferation of violence and the failure of
resistance because individuals have a natural tendency to obey instruction rather than taking
personal initiative in ambiguous situations. As a result of authorisation, therefore, resistance
is less likely to occur because the bystander interprets the event as legitimate, and
consequently assumes little or no responsibility for the situation.
The work of Milgram is noteworthy in this regard.52 Milgram constructed
experiments whereby unexceptional, well-intentioned individuals obeyed directions to
administer increasingly painful electric shocks to actors posing as students. Approximately
one third of participants refused to continue the experiment at the administration of 150 volts
where the actor showed clear signs of pain as well as a desire to be freed. By the end of the
experiment, at 450 volts, an additional 10-15% of participants had refused to continue.53 This
study has been analysed by Packer,54 who reports that those who left after the 150 volt mark
did so on the basis that the student‘s right to stop trumped the right of the scientist to proceed.
Therefore, human rights analysis provided a framework for evaluation where authoritative
directions conflicted with the intuition of the participant. This is the danger of harbouring a
weak conception of human rights: where rights are ambiguous, inhumane treatment may
easily ensue.
The experiment has been replicated by Burger in more recent times.55 Burger has
discovered that those who refused to continue after 150 volts, when the student expressed a
desire to stop, were those who considered themselves responsible for the acts, rather than
attributing responsibility to the director of the experiment. Therefore, it was a perception of
personal accountability which rendered them unwilling to go on. The importance of these
findings cannot be overestimated, because they serve to prove that when an individual has a
firm conception of human rights as well as a sense of individual accountability for wrong
done, both of which are concepts capable of overriding the authoritative directions
administered on the ground, he will be far more likely to display resistance to the inhumane
treatment of others.
In cases of mass atrocity, the local legal and moral order is too often subject to
collapse, resulting in normative ambiguity for its subjects. Where authoritative directions
replace moral norms, with no possibility of refuge in concepts such as individual human
rights or personal responsibility, a majority of individuals will naturally obey direction,
giving rise to acceptance and reducing the possibility of resistance to gross human rights
abuses. Therefore, if a higher system of norms were to be available at an international level,
this would hinder the success of novel directions by ceasing to allow rights and duties to
become ambiguous in the first instance. The preceding analysis demonstrates that where
Latane & Darley‘s third step (an assumption of personal responsibility) is fulfilled, resistance
to authority is far more likely to obtain. Utilising the foregoing analysis, the author will
examine the merits and demerits of introducing a duty to rescue in international law.
50
Note ‗The Duty to Rescue in Tort Law: Implications of Research on Altruism‘ (1980) 55 Ind. L.J. 551.
Kelman, Herbert, ‗Violence Without Moral Restraint: Reflections on the Dehumanization of Victims and
Victimizers,‘ Journal of Social Issues, vol 29, no 4.
52
S Milgram ‗Behavioural Study of Obedience‘ (1963) Journal of Abnormal and Social Psychology 371. See
also http://www.nytimes.com/2008/07/01/health/research/01mind.html (2 March 2010).
53
ibid.
54
D Packer ‗Identifying Systematic Disobedience in Milgram‘s Obedience Experiments: A Meta-Analytic
Review‘ (2008) 3(4) Perspectives on Psychological Science.
55
J M Burger ‗Replicating Milgram: Would People Still Obey Today‘ (2009) American Psychologist.
51
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2
The Duty to Rescue in International Law
As emphasised above, there is little doubt that introducing a general duty to rescue via
international criminal jurisprudence is dangerous and to be avoided. However, what that
discussion also highlighted was that there exists a vacuum currently in this area: the
international community would benefit from the introduction of Good Samaritan laws in a
formal setting in order that local intervention in mass atrocity is encouraged and further that a
clear distinction may be drawn between penalties for commission of a crime and penalties
imposed for failing to rescue.
The debate concerning Good Samaritan laws frequently draws dissenters who are of
the view that a legal requirement to act is an unnecessary restriction of personal liberty.
However, the author suggests that liberty is restricted via the law all the time: this particular
question concerns how far the law may go in requiring us to become enablers for one
another. The further the law‘s reach, the weightier our obligations, and thus the more rapidly
our quality of life decreases. However, once maintained within reasonable limits, the
obligation to rescue need not be unduly onerous. Despite this, it is essential that the scope of
the law would nevertheless be mapped out in order for it to provide clear behavioural
guidance. How would this anomaly be resolved? It is suggested here that the closer we are
to the emergency, the greater our duty to that particular victim is.56 Indeed, the author agrees
with Schmidtz to the effect that the phenomenon of selective focus should be adhered to. In
short, that in order to live happy lives we must be granted the liberty to choose which
injustices we desire to remedy, and thereby to sacrifice other legitimate concerns in the
process.
Waldron echoes this sentiment: ‗where I am on the spot, and where help, if it is to
come at all, can only come from me, the demands of morality are compelling.‘ 57 Our
instrumentality alters the nature of our obligation and thus location is highly significant. In
this context, then, the duty would have to be limited to direct confrontation with emergency,
so that individual welfare is not diminished through excessive obligation to causes which we
have not chosen to support. The duty to rescue would thus entail an obligation to report an
emergency, and an obligation to assist where there is no significant physical risk posed to the
rescuer. A normative value such as this would provide bystanders in morally corrupt legal
and political systems with a form of back-up morality; a guide to behaviour which otherwise
would remain absent.
The author suggests that the most effective method of introducing the duty to assist
under international law would be the drafting of a United Nations treaty through the
negotiation of member states. Rather than framing the obligation in criminal terms, the duty
would simply constitute an international legal obligation, violation of which would give rise
to declaratory responsibility simpliciter rather than punitive sanctions. International law
shapes human behaviour, independent of the existence of punitive sanctions. The ICESCR,
for instance, acknowledges clearly its status as an advisory document with progressive
realisation at its heart.58 Despite this important limitation, it has nevertheless had a powerful
impact on the way states, and indeed individuals, have regulated their affairs over the past
thirty years. This provides an important view of international law, not as sanction-based, but
as behaviourally normative. An international treaty concerning Good Samaritan laws would
operate in a similar manner, with the important exception that it would be aimed primarily at
56
See generally D Schmitdz ‗Islands in a Sea of Obligation: Limits of the Duty to Rescue‘ (2000) 19 Law and
Philosophy 683.
57
ibid 1075.
58
Art 2 International Covenant on Economic Social and Cultural Rights 1966 available at:
http://www2.ohchr.orh/english/law/cescr.htm (2 March 2010).
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individuals in their interaction with one another, in order to enhance bystander resistance and
to thereby reduce the potentiality for further human rights abuses across the globe.
E
CONCLUSION
Where legal and moral normative systems collapse, it is imperative that individuals can refer
to a higher set of norms in their place, in order to possess behavioural guidance in the midst
of moral crisis. Where this situation ensues, the significance of silent bystanders in the
facilitation of mass atrocity cannot be overestimated. As Vetlesen sharply points out:
[T]he bystander is the one who decides whether the harm wrought by the aggressor is permitted
to stand unrectified or not…So whereas for the agent, bystanders represent the potential of
resistance, for the victims they may represent the only source of hope left.59
Even where legal sanctions are not administered for failing in one‘s duty to rescue,
developing a moral compass regarding obligations to one‘s fellow man would be a truly
positive step towards the eradication of widespread and systematic human rights abuses. To
borrow Staub‘s words, ‗one of the very important things that we can do, as individuals and as
groups, is to make a response, to take a stand, to express ourselves to perpetrators both at
home and in other countries…‘ so that the peace and security of mankind is not threatened
further by the frailty of local moral standards.
59
Vetlesen (n 3) 529.
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RETHINKING THE MECHANISMS FOR JUDGEMENT COMPLIANCE IN THE
COUNCIL OF EUROPE AND ELIMINATING THE „LEGAL/POLITICAL GAP‟
Anthanasia Hadjigeorgiou *
ABSTRACT
This article examines the mechanisms through which the Committee of Ministers ensures that
the Council of Europe Member States comply with the decisions of the European Court of
Human Rights. It then offers new ideas as to how these mechanisms can be improved and
evaluates the organisation‟s attempt to deal with non-compliance problems through Protocol
14. It concludes that only by eliminating what has been termed the „legal/political gap‟, will
the organisation be truly effective in policing human rights abuses in Europe. This should be
done through a series of changes, namely a more dynamic approach by the Committee,
greater involvement of the court in the implementation process and better cooperation with
the European Union and the European Commissioner for Human Rights. The organisation‟s
nature has changed from a group of self-policing States to largely a training centre for new
democracies. The Council needs to adapt quickly: unless its authority is firmly established in
this new state of affairs, its ineffectiveness will encourage further non-compliance by the
newer Member States.
A
INTRODUCTION
The Council of Europe is the most renowned human rights organisation worldwide.
Nonetheless, following its enlargement in the 1990s and its failure to adapt accordingly, its
reputation and effectiveness in terms of judgment compliance are being compromised daily.
The Council has traditionally relied on a combination of legal and political pressures for the
implementation of judgments. The legal mechanisms include the influence of the European
Court of Human Rights1 in domestic legal systems and the fact that the European Convention
on Human Rights has been nationally implemented by all Member States, while political
mechanisms mostly rely on pressure from the Committee of Ministers and national
organisations. The court and the Committee function independently from each other, both
formally and behind the scenes; however, implementation mechanisms can only achieve their
true potential if the gap between the organisation‘s legal and political bodies is reduced as
much as possible. By drawing a clear dividing line between the legally binding judgments of
the ECtHR and the political statements of the Committee, the system is downplaying the
importance of the latter and harms the organisation‘s overall efficiency. This article does not
focus on the Committee or on the ECtHR in particular; its aim is to discuss the relationship
between the two bodies and suggest ways in which their cooperation can be improved.
The paper begins by examining the Council‘s characteristics which transformed it into
a uniquely respected organisation and questions whether they remain helpful in the post-1990
era. It then proposes necessary reforms to avoid the organisation‘s decline: greater
involvement of the ECtHR in the execution process and a more robust attitude against
violators in the Committee. Only by making the Council‘s bodies more aware of their
common goals and their relationship to each other and to other international organisations,
can the currently failing implementation mechanisms regain their effectiveness.
*LLB (Hons) Univeristy College London and currently pursuing the LLM degree at Cambridge University.
1
Henceforth, ‗ECtHR‘ or ‗Court‘.
[2010] COLR
B
THE WORKING MECHANISMS OF THE COUNCIL OF EUROPE
Unlike most types of international treaties, human rights treaties are non-reciprocal: the State
has no incentive to abide by the limitations on its sovereign power apart from good will since
other Member States have no reason to force it to do so.2 Thus, most human rights bodies are
unknown to the general public and their decisions are largely ignored by governments,3 a
situation which can be contrasted with the European Union or the World Trade Organisation,
organisations whose primary concern is the States‘ economies. The exception to this is the
Council of Europe: it consists of 47 Member States, yet it is compared to the German Federal
and US Supreme Courts rather than other international bodies.
Despite the well accepted recognition of the Council‘s effectiveness, if its aim is truly
to secure ‗the universal and effective recognition and observance of the Rights therein
declared,‘4 the statistics show a less satisfactory picture. The more ‗rapidly general measures
are taken by States to execute judgments, the fewer repetitive applications there will be,‘5 yet
60% of the court‘s judgments concern violations already condemned in the respondent State.6
This is at a time when cases reaching the ECtHR have increased by 15% between 2006 and
2007 and just 4 States generate half of the court‘s case load (Russia, Romania, Turkey and
Ukraine).7 That is partly because of the individual complaints procedure, but it must also
indicate that the Committee is in some ways failing its task. If the Council is to avoid the
‗ultimate asphyxiation of the system and a steady, painful loss of credibility,‘8 its working
procedures must be reconsidered.
The organisation‘s legal and political processes are largely distinct: on the legal level,
the ECtHR decides whether a violation has taken place, and if it has, the case is sent to the
political body of the Council, the Committee of Ministers, through which diplomatic pressure
is exerted on the respondent State.9 The gap between these two procedures (what will be
termed in this article as the ‗legal/political gap‘) determines the effectiveness of the
organisation as a whole. It affects each State to a different extent, since pressure for
implementation works not only on a European, but on a national level as well. However, the
smaller the gap, the less likely a State is to take advantage of it and stray from its
responsibilities. It is suggested that the mechanism operating in the Committee ensures that a
small individual improvement in compliance by many States cumulatively increases the
overall pressure on those few non-compliant Parties. However, bridging the gap by
unilaterally increasing the powers of only one body is impossible in an organisation that
works by unanimity. Thus, all mechanisms need to be slightly modified, since the change has
to be subtle enough for the States to agree to, but effective enough to make a difference in
compliance. The next four sections will discuss the existing mechanisms of the Council, the
extent to which they are helpful today and how they can be improved. The mechanisms are:
2
R Provost ‗Reciprocity in Human Rights and Humanitarian Law‘ (1994) 65 British Year Book of International
Law 383.
3
For example, the European Committee for the Prevention of Torture, carried out as of 2/12/2008 260 visits in
all Member States and published 210 reports, but does not mention in how many situations action was taken
following the report http://cpt.coe.int/en/ (2 March 2010).
4
European Convention of Human Rights, preamble para 3.
5
Explanatory Report of Protocol 14 para 16.
6
ibid para 68.
7
M Boyle ‗On Reforming the Operation of the European Court of Human Rights‘ (2008) European Human
Rights Law Review 1, 4.
8
ibid.
9
E Lambert-Abdelgawad The Execution of Judgments of the ECHR (Human Rights Files No 19 2002); E
Lambert-Abdelgawad The Execution of Judgements of the ECHR (2nd edn Human Rights Files No 19 2008).
137
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the ECtHR‘s credibility, the Committee‘s diplomatic pressure, the effect of the Council‘s
relationship with the EU and the mechanism of indirect national pressure.
1
The Legal Mechanism of the Council and the Credibility of the Court
The first mechanism, the credibility of the ECtHR, is achieved through the court‘s transparent
reasoning.10 The fact that almost every case has dissenting judgements shows that the
proportionality test is not merely a tactic for the court to protect the applicant, but a tool
which helps it reach the fairest result.11 This great success has led to a debate that is dividing
the court: should it deliver individual or constitutional justice? Those in favour of individual
justice, mainly most NGOs, argue that the court‘s responsibility under the Convention is to
provide redress for every violation.12 However, a court with 800 million potential applicants
can never achieve this goal, making constitutional justice the only viable alternative.
‗Constitutional justice‘ has two different meanings: the first is that the court should interpret
the Convention and by giving guidance to national courts act as the Supreme Court of
Europe, what has been termed ‗Embeddedness‘.13 The second interpretation suggests that the
ECtHR should deal with serious violation cases and not necessarily with those that have a
general point to make.14 The problem with this suggestion is that the court will focus on
article 2 and 3 violations at the expense of other articles and more compliant States.
Secondly, it has become clear that the Committee does not have the teeth to implement gross
and systematic violations. Consequently, this interpretation will not only harm the
organisation‘s reputation, but will arguably fail to deliver any justice. Instead, by giving
guidance to the national courts and shifting some responsibility to their shoulders through
Embeddedness, national courts become active participants and are more likely to play by the
ECtHR‘s rules. This will have a positive effect not only in terms of implementation of
decisions, but also in the coherence of the law. Hefler argues that Embeddedness faces two
problems: firstly, national Supreme Courts are willing to apply ECtHR‘s guidelines, this
willingness is reduced in lower courts where most cases are dealt with.15 This can only be
solved by educating lawyers and judges, not only on a European level, but most importantly
domestically through the National Human Rights Institutions.16 The second problem is that
in some countries, it is the courts themselves that are refusing to cooperate and are lacking
impartiality.17 The solution to this is a more rigorous approach on the international level, a
suggestion that will be elaborated in the second part of the paper. Despite these difficulties,
Embeddedness is a necessary development for better implementation of judgments.
10
Boyle (n 7).
S. Palmer ‗A Wrong Turning: Article 3 ECHR and Proportionality‘ (2006) 65 Cambridge Law Journal 438,
447. ‗Proportionality is assessed by balancing the importance of the interference against the seriousness of
interfering with a fundamental right.‘
12
For example, Amnesty International ‗Amnesty International‘s Comments on the Interim Activity Report:
Guaranteeing the Long Term Effectiveness of the European Court of Human Rights‘ (Report) (February 2004)
AI Index IOR 61/005.
13
L Hefler ‗Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of
the European Human Rights Regime‘ (2008) 19 European Journal of International Law 125, 128.
14
Interview with ex- ECtHR Judge Loukaides, Nicosia (2 February 2009).
15
Hefler (n 13) 134.
16
Henceforth ‗NHRIs‘.
17
For example, in Shamayev v Georgia and Russia (App No 36378/02) a fact finding mission was organised by
the Council in Russia in September 2003. The Council was notified a month later that the Stavropol Regional
Court refused to grant the Court delegation access to the applicants.
11
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2
The Political Mechanism of the Council and the Workings of the
Committee of Ministers
The Committee of Ministers is a forum where Member States‘ representatives (either the
Foreign Minister or his Strasbourg based deputy) put pressure on the respondent State to
remedy the violation and prevent further ones from taking place. The Committee reviews
each case every six months and issues interim resolutions on the State‘s progress, until the
decision has been fully implemented and a final resolution is published. Most States take this
process seriously: for example, the Cypriot government employed Lord Lester of Herne Hill,
QC to represent it in the Committee on the Turkish occupation issue, showing that it
considers the Committee an effective medium through which it can present its case.18
However, perhaps due to the different levels of democratic maturity in the
organisation, the Committee has been inconsistent in what it will accept as an effective
execution of a judgment. Sometimes it is not satisfied with merely a draft proposal and waits
for the enactment of the legislation and in others, bringing the judgment to the domestic
authorities‘ attention is enough.19 Where an amendment in the legislation is unnecessary
because national courts will prevent similar violations, the Committee requires proof through
judicial practice.20 Again, the time period for which this is monitored varies.
This flexibility, arguably an inherent characteristic of the political negotiation process,
might have been acceptable when membership was restricted and expectations from States
were more predictable, but this is no longer the case. If deviation from ECtHR standards due
to political exploitation of the Committee‘s processes is inevitable, more power should be
transferred to other bodies of the organisation. Therefore, a dilemma lies before the Council:
the court can either expand its role to match its increasing significance in Europe, or it can
restrain it, to match the capabilities of the Committee for the sake of a more internationally
coherent organisation. Solutions to this ‗legal/political gap‘ problem are discussed in section
three.
3
The Vague Relationship Between the Council of Europe and the European Union
A number of the Council‘s most committed Members are also key players in the EU context,
creating a relationship of cooperation and respect between the two organisations. It is
suggested that this could work to the Council‘s advantage by creating an added incentive for
Member States to implement the ECtHR‘s decisions. However, despite its potential, the EUCouncil relationship remains underdeveloped and hinders the organisation‘s wellfunctioning. Following the drafting of the EU Charter of Fundamental Rights and ‗the
emergence of significant «conflicts of loyalties»‘ 21 the legitimacy of both systems is
potentially compromised. This was illustrated in Mathews v. UK22 which found the UK liable
for violating the right to vote during the Euro-elections and forced it to decide between
ignoring an ECtHR or a European Council decision.
18
Cyprus v Turkey (App No 25781/94) (2002) 35 EHRR 30. Memorandum prepared by the Secretariat of the
Department for the Execution of judgments of the ECHR (DG-HL).
19
S Greer The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge
Cambridge University Press 2006) 158 (Henceforth, ‗The ECHR: Achievements‟).
20
For a more detailed discussion of this and examples, see Lambert-Abdelgawad (n 9) (2008).
21
R Harmsen ‗National Responsibility for European Community Acts under the European Convention of
Human Rights: recasting the accession debate‘ (2001) 7 European Public Law 625, 644.
22
(App no 24833/94) (1999) 28 EHRR 361.
139
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The vague relationship between the two organisations is also reflected in the language
of the Copenhagen criteria,23 the EU accession criteria for new Member States. They require
that the applicant countries have stable institutions, are able to guarantee democracy, the rule
of law, human rights, respect and protect minorities. These undefined principles partly
depend on ECtHR compliance, but it is unclear to what extent.24 Thus, Member States can
use such vague requirements to keep candidate States out of the EU and protect their national
interests, without harming their good international relations. Following its accession
application, Turkey made a number of domestic changes 25 which were considered
unsatisfactory by the EU. Conversely, although some differences were noted in minorities‘
protection in Eastern Europe, the European Commission used virtually identical language to
describe the situation in each country.26 Despite concerns over its poor human rights record,
Slovakia joined the EU in 2004 while Turkey is waiting (arguably in vain) for an accession
date. Following the Commission‘s Report ‗The Europe Agreements and Beyond: a Strategy
to Prepare the Countries of Central and Eastern Europe for Accession‘,27 the EU has
politically and financially supported these States, while Turkey has only received criticism.
This makes sense politically: Turkey‘s has a high birth rate and a population of 76
million people28 making it the largest country in the EU, which translates into an influential
minority in the Parliamentary Assembly. Concurrently, the poor living conditions Turks live
in, make countries such as Germany (with a Turkish population of 6 million people) worried
of mass immigration as soon as Turkey receives full membership.29 These factors undeniably
affect Turkey‘s accession prospects, but they cannot be openly admitted, turning human
rights into a useful scapegoat. When asked whether this is a problem, the ex-ECtHR Cypriot
Judge Loukaides stated: ‗A violation is a violation. The fact that the EU is using human
rights as a tool for its political objectives does not change a simple fact.‘30 However, one
should disagree31: this approach makes the Turkish population disillusioned with human
rights as they are portrayed as hurdles to a better European life, undermining their
significance and popularity.32 Unless the Council is to become another ‗intra-EU politics
«toy»,‘33 it must keep up with the political realities in Europe and aim for a clearer
relationship with the EU.
4
The Indirect National Pressure for Compliance
The fourth and most complex mechanism for compliance is indirect pressure in each State.
This pressure arguably comes from the State‘s constitution, NHRIs, ‗elite opinion‘ and to a
23
European Council in Copenhagen, Conclusions of the Presidency, 21-22 June 1993, (SN 180/1/93 REV 1).
H Arikan ‗A Lost Opportunity? A Critique of the EU‘s Human Rights Policy Towards Turkey‘ (2002) 7
Mediterranean Politics 19, 22.
25
For example, it amended the penal code and did not ratify 200 death sentences.
26
Arikan (n 24) 32.
27
Commission (EC), ‗The Europe Agreements and Beyond: A Strategy to Prepare the Countries of Central and
Eastern Europe for Accession‘ COM (94) 320 final, 13 July 1994.
28
Central Intelligence Agency ‗The World Factbook‘ <https://www.cia.gov/library/publications/the-worldfactbook/geos/tu.html> (25 February 2010).
29
C Kassimeris and L Tsoumpanou ‗The Impact of the European Convention for the Protection of Human
Rights and Fundamental Freedoms on Turkey‘s EU Candidacy‘ (2008) 12 International Journal of Human
Rights 329 (Henceforth, ‗The impact of the ECHR on Turkey‘s EU candidacy‘).
30
Interview with ex- ECtHR Judge Loukaides, Nicosia (2 February 2009).
31
Kassimeris (n 29).
32
ibid.
33
S Stavrides ‗The Parliamentary Forum of the Euro-Mediterranean Partnership: An Assessment‘ (2002) 7
Mediterranean Politics 30, 43.
24
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lesser extent, general public opinion. It is the interaction between these factors and their
varying influence in each country that makes each State‘s record and attitude towards specific
rights unique. Ideally, these factors push for the implementation of ECtHR decisions on a
national level, downplaying the inherent weakness of international pressure mechanisms and
alleviating the non-reciprocity of human rights treaties. However, because the newer, less
compliant Member States lack one or more of the pressure mechanisms, a more
internationally robust attitude, the subject matter of the next part of this paper, is necessary.
Each State has incorporated the Convention in its own legal system and pressure to
abide by national legislation is in most cases sufficient to ensure compliance. Thus, the
litmus paper for compliance is found in the controversial cases, which are usually not
supported by the general public and have no direct political consequences.34 What is
necessary to induce compliance in such cases therefore, is pressure from the ‗elite opinion‘,
for example, academics and human rights organisations. Generally, the mutual interlocking
pressure from these internal factors can influence compliance. For example, if the UK
Parliament decides to violate a human right, it has to pass a law expressly stating this. This
law would be lobbied against by ‗elite opinion‘ groups which would argue that this violates
the Human Rights Act 1998, imposing political prices (such as the division of the governing
party) that the government might be reluctant to pay. Even if this fails, the courts can issue a
declaration of incompatibility, sending the law back to Parliament.35 At this stage, ‗elite
opinion‘ will become more forceful and general public opinion will be engaged since the
Act‘s opponents might use the media to influence the political climate – few governments are
willing to risk being labelled ‗anti-human rights‘. NHRIs, whose main role is to educate the
public about their human rights, will also participate in this process.
It is therefore vital that some respect for human rights exists before the State joins the
Council so that these internal mechanisms can play their role. It is submitted that if human
rights protection does not meet a minimum threshold nationally, European pressure, which is
largely residual, remains ineffective. The EU is uniquely important in this respect because
despite its international position the doctrine of direct effect allows it to initiate change from
within. The fact that existing respect for human rights is lacking in a number of the newer
Member States should have been anticipated by the Council. When the new States were
admitted in the organisation, the argument was that they would gain more as insiders rather
than outsiders.36
However, when the Council was transformed from a ‗club of
37
democracies‘ into partly a ‗training centre‘38 for new Member States, it failed to act as an
‗adjudicator of transition‘39 and guide the new Members to meet the required standards.
Additionally, the Council should have maintained some minimum standard in its accession
requirements. For example, Russian politicians did not keep their anti-human rights
sentiments a secret and it is questionable whether they understood the obligations they
undertook at the time.40 Recently, in Shamayev v. Russia and Georgia41 the Russian
34
An example of such a controversial decision, which the Member State complied with is McCann v United
Kingdom (1996) 21 EHRR 97.
35
As happened for example in Bellinger v Bellinger [2003] UKHL 21.
36
R Harmsen ‗The European Convention on Human Rights After Enlargement‘ (2001) 5 International Journal
of Human Rights 18, 28 (Henceforth, ‗The ECHR After Enlargement‘).
37
F. Surde ‗La Commmunauté Européenne et Les Droits Fondamentaux Apréx le Traité D‘Amsterdam: Ves un
Nouveau Système Européen de Protection des Droits de l‘Homme? (1998) La Semaine Juridique 9, 9.
38
ibid.
39
Harmsen (n 36) 29.
40
For example, Sergei Stepashin, the Russian Minister of Justice, stated in a public newspaper in 1994: ‗I am in
favour of human rights violations if this human being is criminal‘ (Found in B Bowring ‗Russia‘s Accession to
the Council of Europe and Human Rights: Compliance or Cross Purposes?‘ (1997) European Human Rights
Law Review 628.
141
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authorities refused to allow the applicants‘ representatives to contact their clients and
cancelled the fact-finding mission organised by the Council.42 Problematically, the Council
was not only prepared to turn a blind eye to violations before accession, but it maintains a
similar attitude after it.
Apart from dissimilar levels of political willingness to comply with judgments,
Member States differ culturally and economically. For example, Moldova might want to
follow the court‘s decisions, but it lacks the resources to do so. Simultaneously, Azerbaijan
faces significant human rights problems, yet it sends very few cases to the court, because the
majority of its citizens lack the education and its lawyers the expertise to take this step.
Consequently, fewer people are aware of their human rights and less prepared to press for
their implementation on the national level. Greer outlines seven main reasons why States fail
to meet their Convention obligations: ‗political problems, the daunting scale of reforms
required, legislative procedures, budgetary issues, public opinions, conflicting EU obligations
and bureaucratic inertia.‘43 Each country faces at different times all, some or none of these
problems. At the other end of the spectrum, Germany has a good compliance record but
rarely uses the ECtHR as it usually protects civil liberties through its domestic system.44
These ranging national attitudes suggest that it is illusionary to assume that a single tactic will
successfully boost compliance rates or that we can universally rely on the national processes
for implementation; the Committee‘s flexible mechanisms are therefore necessary for the
well-functioning of the organisation. Nevertheless, if such flexibility is allowed without
more specific guidance from the court, the factors outlined by Greer will become a fertile
ground for accommodating excuses from less compliant States.
C
SUGGESTIONS FOR MORE EFFICIENT WORKING PROCEDURES IN
THE COUNCIL OF EUROPE
The Council‘s working mechanisms might have been efficient in the 1990s, but following its
expansion, they must be developed further to fill the growing gap between the legal and the
political processes of the organisation. Despite the increasing chances of Protocol 14‘s nonratification due to the Russian veto, it still merits consideration as it includes the Council‘s
most recent proposals on this matter. Nonetheless, Protocol 14 was only intended to be a
short to medium term solution so new proposals would be necessary shortly following its
unlikely ratification. The following sections will examine the Protocol‘s solutions and any
suggestions that could have been included but were not. Most of the suggestions are of a
general nature, but two of them (exclusion from the Council and better cooperation with the
EU) will be examined in light of the State they aim to affect the most (Russia and Turkey
respectively).
1
A More Proactive Approach by the Council as a Whole
Rather than dealing with the compliance issue independently, Protocol 14 was primarily
concerned with the overburdening of the court; in this respect therefore, it is a lost
opportunity. A long overdue change that was not suggested is the translation of case law and
41
(App no 36378/02) [2005] ECHR 233.
L Zwaakand and Y Haeck ‗Council of Europe‘ (2008) 26 Netherlands Quarterly of Human Rights 125, 126.
43
Greer (n 19) 158.
44
For a comparative analysis between Germany and the other Member States, see European Court of Human
Rights Annual Report 2008 (Strasbourg Registry of the European Court of Human Rights 2008) 132.
42
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interim resolutions in the official languages of the Member States. Many decisions concern
the administrative authorities rather than the legislature and not every State official can read
English or French. Decisions are binding on the respondent State, leaving the majority of
Germans or Russians to be governed by a law which they do not understand. Ironically, it is
the translation of documents into many languages that will unify the Council of Europe. If
the judgment is available in the State‘s formal language, it is more easily considered as part
of the national law and implemented due to rule of law pressures. Finally, the Council should
endorse the Group of Wise Persons‘ suggestion that translated material ‗should be distributed
as widely as possible, particularly within public institutions such as courts, investigative
bodies, prison administrations, and non-state entities such as bar associations and
professional organisations. Law faculties should also figure among the most important
recipients of these publications.‘45 These bodies possess what has been previously called
‗elite opinion‘; translating judgements makes it more likely that indirect national pressure
will push for their execution.
Translation becomes increasingly important if States are granted an erga omnes right,
one of Greer‘s suggestions for improved compliance rates.46 An erga omnes right can be
litigated by every country and not only by the victim. It is thus possible, that one day
Norway could bring a claim against Turkey for failing to meet its obligations, sending the
message that systematic violators will not be tolerated. Despite the tremendous advantages of
this right, it is unlikely that it will ever be used since Norway has no interest in ruining its
relations with Turkey, wasting time and money without itself benefiting from it. Greer
himself explains that the underutilised inter-state procedure rests on a naive contradiction:
‗the belief that litigious animosity between States will promote greater unity and respect for
shared values.‘47 Why is the erga omnes procedure any different? Therefore, more realistic
and effective suggestions are needed.
2
A More Dynamic Approach by the Committee against Non-Compliant States
Article 8 of the Statute of the Council of Europe makes possible the exclusion of a
systematically non-compliant State from the Council. This has never been used; it was
contemplated only once during the seven-year Junta in Greece, but the Generals withdrew
before the Council had taken any action.48 It has been threatened indirectly once, when the
Committee stressed ‗the compulsory jurisdiction of the court and the binding nature of its
judgments‘ and asked the States ‗to ensure, with all means available to the Organisation,
Turkey‘s compliance with its obligations.‘49 This goes to the root of Kamminga‘s criticism
that the ‗the more serious and widespread the violations, the less adequate has been the
response.‘50 States are much less likely to remedy systematic and gross violations because
they know that the threat of exclusion, aiming to prevent exactly these, will never be used.
The example that will be used in this discussion is Russia, a uniquely problematic State, not
only because of its numerous violations, but mainly because of its consistent lack of political
willingness to improve. Thus, such aggressive use of the Council‘s powers should only be
45
Council of Europe ‗Report of the Group of Wise Persons to the Committee of Ministers‘ (CM 2006 203) para
74 (Henceforth, ‗Wise Persons‘ Report‘).
46
Greer (n 19) 280-281.
47
ibid 317.
48
Lambert-Abdelgawad (n 9) (2008).
49
Committee of Ministers, Interim Resolution ResDH (2001) 80 paras 6 and 8.
50
M Kamminga ‗Is the ECHR Sufficiently Equipped to Cope with Gross and Systematic Violations?‘ (1994) 12
Netherlands Quarterly of Human Rights 153, 163.
143
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made where national pressure mechanisms are completely ineffective, rendering other forms
of pressure in the Committee futile.
Harmsen argues that the Committee ‗will have to hold States strictly to account for
their implementation of court decisions – taking such actions as are necessary, up to and
including suspension from the Council itself.‘51 Before contemplating whether this is
advantageous, the Council should clarify that membership is not something that States of an
(albeit low) democratic status can take for granted; it is a privilege they must keep earning.
Today, Eastern European States with little experience in human rights protection, the rule of
law and democratic institutions have no incentive apart from their good will to comply with
the court‘s decisions.52 The fact that they form a significant part of the organisation makes
the Committee‘s pressure even less significant. Had the Council demanded substantial
improvements before their accession, the Committee‘s task would have been much simpler.
Notably, a number of these States have recently joined the EU, emphasising that a closer
relationship with the EU, including clarification of the Copenhagen criteria, would have been
to the Council‘s advantage. As things stand however, the only remaining tool in the
Committee‘s hands is the threat of exclusion.
The strongest argument against exclusion is that some protection is better than no
protection, which will be the outcome if a State is excluded from the Council.53
Problematically, only one country will be penalised for its actions, as others (equally
deserving the same fate) will swiftly comply in order to avoid the punishment. This country
will also be the one with the most violations and in the greatest need for the Council‘s
guidance. Nevertheless, some countries are compromising the Council‘s reputation and using
its money and time with no visible improvement. For example, Mr Putin has suggested that
Russia‘s non-ratification of Protocol 14 is a reaction to the judgment in Ilaşcu and Others v.
Moldova and Russia.54 With attitudes dangerously resembling blackmail, one wonders what
the Committee will accept before considering exclusion. The court in Ilaşcu had asked for
the prisoner‘s immediate release, but five years and four interim resolutions later, this has still
not happened. As Mark Janis predicted, ‗the same political importance of Russia that has
prompted the Council of Europe to accept its admittance, will make it especially difficult for
Strasburg to force the Russian Government to comply with adverse findings.‘55 Arguably,
only Russia has this sort of power. However, more than 50% of the courts‘ decisions
ordering compensation are not executed at all or not within a reasonable period.56 This is
partly due to a lack of political willingness to comply, and not only Russia‘s. Slovenia,
Georgia and Moldova had in 2008 the most violations per person,57 becoming Russia‘s
potential allies in defying the court.
A further issue is whether the article‘s use should be discretionary or whether it
should depend on a predefined test, considering that its discretionary use so far has failed to
convince of its success. Understandably, no country is willing to step up first and ask that a
violator is excluded. If article 8 kicked in automatically and the Committee merely had to
decide whether to execute its power, its use would not be so unlikely. Thus, an accurate test
with time limits and number of violations is necessary to make the threat of exclusion a real
51
Harmsen (n 36) 35.
P Leach ‗Strasbourg‘s oversight of Russia – an increasingly strained relationship‘ (2007) Public Law 640.
53
Lambert-Abdelgawad (n 9) (2002, 2008).
54
(App no 48787/99) (2005) 40 EHRR 46.
55
M. Janis ‗Russia and the ―Legality‖ of Strasbourg Law‘ (1997) European Journal of International Law 93, 98.
56
European Commission for the Efficiency of Justice ‗Examination of problems related to the execution of
decisions by national civil courts against the State and its entities in the Russian Federation‘ (CEPEJ 2005 (8) 9
December 2005) para 11.
57
European Court of Human Rights ‗Annual Report 2008: Provisional Edition‘ (Strasbourg Registry of the
European Court of Human Rights 2008) 140-141.
52
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one. This suggestion however, raises more questions than it answers: will exclusion follow
automatically if the test is satisfied or will some discretion be left to the Committee? Will the
test catch countries with serious violations, numerous violations or both? Italy faces
enormous article 6 problems, but it should not receive the same penalty as a systematic
violator of articles 2 and 3. On the other hand, a systematic violator of article 10 is
intentionally downplaying the Council‘s biggest tool, national pressure, and should be
punished. Finally, as the Russian veto on Protocol 14 suggests, an amendment to article 8
will be politically next to impossible. Despite article 8‘s appeal in increasing the
Committee‘s power, albeit due to lack of a better alternative, a number of loose strings must
be brought together before it becomes an effective tool.
3
Suggestions for More Involvement of the Court
A third suggestion for the minimisation of the legal/political gap is expanding the court‘s
functions and actively involving it in the implementation procedure, thus supplementing the
Committee‘s work. If the court is to preserve its role as Europe‘s human rights guarantor, ‗it
will have to demonstrate a more acute awareness of its connections to the wider institutional
system [of] which it is part.‘58 Traditionally, the respondent State chooses ‗subject to
supervision by the Committee of Ministers, the general and/or, if appropriate, individual
measures to be adopted in its domestic legal order to put an end to the violation.‘59 Although
this suggests that only the State can choose the most appropriate measure, it should not stop
the ECtHR from providing non-binding suggestions.60 Since court judgments receive more
publicity than Committee resolutions, such suggestions would put implementation measures
in the spotlight and encourage national pressure. The fact that this suggestion was not
included in Protocol 14 was fortunately not perceived by the court as a sign towards a more
reserved approach and in Panovits v. Cyprus61 it argued that the court should take measures
to ‗facilitate the Committee of Ministers‘ task in discharging these functions.‘62 The court‘s
thinly argued jurisprudence and the lack of suggestions to remedy the violation are significant
factors leading to the political exploitation of the Committee‘s procedures, one of the factors
identified in the previous section as contributing to the non-enforcement of decisions. This
problem is heightened in cases where it is unclear why a violation was found in the first
place, such as in Chorherr v. Austria63 where the ECtHR did not give a reasoning at all;
unsurprisingly, the whole decision is only 18 paragraphs long. Finally, greater involvement
is consistent with the court‘s attitude in increasingly recommending the reopening of
domestic legal procedures and with the relatively precise criteria it has set in the calculation
of just satisfaction.
A reason for the obscurity of ECtHR‘s decisions is the margin of appreciation, which
despite its frequent use, is applied inconsistently. It has been used both to avoid expressing
an opinion on a controversial issue and to extend the width of the exceptions under which the
State can justify the violation.64 Consequently, a significant part of the case law is sent to the
Committee with little guidance, allowing for more negotiation and a more watered down
58
Harmsen (n 36) 34.
Ilaşcu v Moldova and Russia (App no 48787/99) (2005) 40 EHRR 46 para 487.
60
Steering Committee for Human Rights ‗Guaranteeing Long-Term Effectiveness of the Control System of the
European Court of Human Rights‘ (Report) CDDH 2003/006, 35-36.
61
(App no 4268/04).
62
ibid, Joint Concurring Opinion of Judges Spielmann and Jebens para 17.
63
(App no 13308/87).
64
G. Letsas ‗Two concepts of the margin of appreciation‘ (2006) 26 Oxford Journal of Legal Studies 705
59
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outcome. Admittedly, the margin is facilitating the organisation‘s effectiveness by giving
States more autonomy in deciding how much international interference to accept in their legal
systems. However, it is the Committee and not the court that should take into account such
political considerations, so as to avoid the risk of creating a two-tier structure through which
the newer democracies might distance themselves from the Council‘s expected standards.
The reasoning behind the ECtHR‘s refusal to offer specific guidelines is that it does
not know the national situation to such an extent so as to make a suggestion to the
legislature.65 This argument should not be taken lightly; the ECtHR is an international court
providing guidance, but the main players are the States themselves. However, these
difficulties can be overcome by making the court‘s suggestions non-binding and by informing
it of the State‘s situation through a well organised system of annual reports. The court has
overridden the subsidiarity principle before, when it started acting as a first instance court
when this was done inadequately by the respondent State. This was supported on the basis of
necessity: had the ECtHR not taken this step, justice would not be delivered. The court finds
itself in a similar dilemma today; hopefully it will be as pioneering as the last time.
Offering guidance to States (which is supported by the interpretation proceedings in
Protocol 14), implies that the ECtHR should deliver more detailed judgments, something
which is not necessarily incompatible with the court‘s role as Europe‘s Constitutional Court.
If the ECtHR is to acquire constitutional status, it must deliver its judgments in more general
terms66, but this should not stop it from providing specific guidelines to the respondent State
after that. This will make the judgments longer, but it will be beneficial in the long term
since it will be easier for the Committee to monitor objectively whether the judgment has
been complied with. Additionally, the increasing guidance and responsibility given to
national courts will result in fewer cases reaching the ECtHR, since most will be adequately
dealt with domestically.67 This however, presupposes the independence of the judiciary and a
developed rule of law, which begs the question once again: can States of such different values
and democratic maturity form an efficient international organisation?
Discussion of the court‘s contribution would be incomplete without mentioning the
pilot judgments procedure. This allows the court to find the violation only once, freeze cases
with identical facts and send them back to be tried by national courts.68 Even though this is
probably effective in saving the court‘s time, it is less so in terms of compliance.
Theoretically, the procedure shows to the respondent State the systematic violation, so action
is taken; however, in almost all of these cases the State is aware of the problem and merely
ignores it. The assumption is that the domestic system will deal with the violations, but
unless there is political willingness and an independent judiciary, this cannot happen. Pilot
judgements do not solve cases, they merely hide them. Finally, the procedure seems to be in
contrast with another tactic of the court, namely giving priority to systemic violation cases. It
is still unclear from the court‘s jurisprudence how it decides between these two methods,
potentially undermining the court‘s credibility. Despite the persuasiveness of these
arguments the court has recently used the mechanism in Burdov v. Russia (No. 2).69 It
remains to be seen whether pilot judgements will prove effective in the Russian context.
65
ibid 721-722.
Harmsen (n 36) 37.
67
Amnesty International ‗Amnesty International‘s Comments on the Interim Activity Report: Guaranteeing the
Long Term Effectiveness of the European Court of Human Rights‘ (Report)(February 2004) AI Index IOR
61/005, para 7.
68
Case Comment ‗Pilot judgments: applications raising the same issue‘ (2008) 2 European Human Rights Law
Review 279, 279.
69
(App no 59498/00) (2004) 38 EHRR 29.
66
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4
The Micro Level: Cooperation Between the Constituent Bodies of the Council
(a) The Infringement Proceedings
The infringement proceedings, suggested in article 16(4) of Protocol 14, are to be used when
the Committee wants to emphasise a State‘s consistent failure to meet its obligations and will
be available following a formal notice issued by a two thirds majority. The Committee will
use this power discretionarily, increasing the risk of being accused by the respondent State as
motivated by aims other than human rights protection and endangering the Council‘s
reputation as an impartial organisation. This is especially problematic with respect to Russia
which has already made such allegations.
Underlying this mechanism is an unfounded assumption that the sheer fear of the
proceedings will encourage compliance. However, if pressure from the Committee has failed
so far, why should it succeed now? What new factor motivates the State to act that did not
exist before? Additionally, the court cannot reopen the question of whether a violation has
occurred; it will merely rule on whether the State has taken the required measures following
its last judgment. Consequently, either the court will find that the obligation has been
discharged (contradicting the Committee‘s findings) or that it has not, sending the case back
to the Committee. Unless the Committee uses article 8, its only other alternative is to
continue with diplomatic pressures as before. Thus, apart from exceptional circumstances,
the procedure will merely highlight the organisation‘s weaknesses as a whole rather than
achieve anything substantial.
The court itself has made its reservations towards the infringement proceedings clear,
further undermining their potential effectiveness:
What would be the procedural rights of the respondent State? What form
would the decision finding a violation take? Who would represent the
Committee of Ministers before the [c]ourt? What would be the basis for
making a finding of violation? Would this not raise questions of
interpretation of the initial judgment?70
The problem is not that the procedure blurs the distinction between the legal and
political organs of the organisation, but that it has not been thought through properly, leading
to possible conflict rather than cooperation between them. If and when the Council is given
an opportunity to rethink the Protocol‘s successor, article 16(4) merits reconsideration.
(b) The Interpretation Proceedings
Another suggestion in Protocol 14 is the interpretation proceedings through which the
Committee (again, with a two thirds majority) will send the case to the court for further
clarification if it considers that the ‗execution of a final judgment is hindered by a problem of
interpretation‘.71 Since a factor for non-compliance (or more dangerously, only superficial
compliance) is lack of clarity in the court‘s reasoning, the Committee will in time clarify the
extent and type of guidance it expects from the ECtHR.72 The mechanism will encourage
70
Steering Committee for Human Rights ‗Response (2 February 2004) of the European Court of Human Rights
to the CDDH‘s Interim Activity Report‘ CDDH-GDR 2004/001, s 29, 30.
71
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended)(ECHR) Protocol 14, art 16(3).
72
S Greer ‗Protocol 14 and the future of the European Court of Human Rights‘ (2005) Public Law 83.
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dialogue between the Committee and the court, thus limit the gap between the two bodies.
Furthermore, the proceedings will be useful in universalising the interpretation of the
Convention. Concerns about added workload overburdening the court are exaggerated as the
procedure will be confined to isolated cases where the court has not had an opportunity to
clarify its case law through a subsequent judgment.73 The mechanism will also separate
States which truly require further judicial guidance from those which are camouflaging their
political unwillingness with difficulty to act due to lack of clarity in the decision. The court
should not wait for the ratification Protocol 14 to use the proceedings, as it has already
recognised their validity and desirability: in Ringeisen v. Austria74 the question was whether
the court could deliver a further judgement by way of interpretation. Austria argued that this
was impossible without a Convention amendment because under article 52 judgements are
final. The court unanimously rejected this since the object of the article was to exclude the
possibility of appeals; interpretation of a judgment is not an appeal as it is delivered by the
same court. Admittedly, the Protocol mechanism is broader than the Ringeisen interpretation
process because it gives the court the opportunity to interpret general points of law, not just
specific judgments. Nevertheless, the court‘s reasoning remains persuasive for the
interpretation proceedings as well and could be expanded to operate as a remedy to one of the
Council‘s classic problems.
(c) The European Commissioner for Human Rights
Another body which could play a more prominent role in the better implementation of
judgments is the Commissioner for Human Rights. The Commissioner‘s responsibilities
include identifying possible shortcomings in national laws, facilitating the activities of
NHRIs and providing advice and information regarding human rights protection across the
region.75 Despite all these, it remains marginalised in the implementation procedure. Under
the Council umbrella, there are a number of bodies generally unknown to the public which
have similar functions between themselves, resulting either in duplication of their work or
conflicting proposals on the same issues.76 These bodies individually ask for annual
governmental reports, making the task look like a bureaucratic obligation rather than a useful
exercise of self-criticism. The integration of the work of these bodies through the
Commissioner‘s office could be to the advantage of both the States and the Council.
The States would deal with a single, influential body and send only one annual report,
enabling the Commissioner to monitor and evaluate their progress as a whole and
encouraging the States themselves to take their reporting obligation more seriously. The
Commissioner should lay down specific requirements, including the avoidance of media
reports and academic opinions in reporting as they give the government considerable scope to
only include favourable comments.77 Furthermore, reporting would be taken more seriously
if the Commissioner had the power to carry out organised and ad hoc investigations to ensure
that the reports were accurate, a power that could not be granted to the numerous Committees
since that would be an unacceptable infringement of state sovereignty. The gathering of
73
Steering Committee for Human Rights, ‗Guaranteeing Long-Term Effectiveness of the Control System of the
European Court of Human Rights‘ (Report) (April 2003) CDDH 2003/006.
74
(App no 2614/65).
75
Committee of Ministers Res (99)50 (1999) On the Council of Europe Commissioner for Human Rights, art 3
76
For example, the Forum for the Future of Democracy is in danger of duplicating the work of the Venice
Commission.
77
V Dimitrijevic ‗The monitoring of human rights and the prevention of Human Rights violations through
reporting procedures‘ in A Bloes, L Leicht, M Nowak, A Rosas (eds) Monitoring Human Rights in Europe:
Comparing International Procedures and Mechanisms (Kluwer Academic Dordrecht 1993).
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reports would enable the Commissioner to act as an easy access point to information, an
integrated library for the States and the Council. The Commissioner could give the ECtHR a
more detailed understanding of each country‘s problems and legitimise judgments containing
general solutions for systematic violations. Its position as the Council‘s Library would also
make it unnecessary for the ECtHR to act as a first instance court, thus saving the court even
more time and further protecting its credibility since the information before it will have been
provided by an independent body. Furthermore, the reports would help the court identify
systematic violations more easily and would be a useful tool for the Council to determine
whether the suggestions outlined above are indeed effective. Finally, the Commissioner‘s
library should also include information on the national reforms for better enforcement of
decisions. Ukraine and Italy have recently made such reforms78; the next State to do this
could have access to them and might avoid having to reinvent the wheel.
The integration would make the Committees more aware of the workings of other
bodies and their conclusions would acquire added weight due to the support of a more
influential body. However, this suggestion brings with it the danger of a ‗one size fits all‘
approach which could ignore less traditional rights, such as social rights, and will be
vigorously opposed by the relevant Committees.79 Therefore, they should be given a strong
say in what questions are being asked and if the information provided is inadequate, States
should be made aware of this. Notably, a number of social rights and equality issues are
addressed in the EU context as well, making the case for closer cooperation between the two
organisations even stronger, and the need for an integrated body within the Council more
necessary.
The Parliamentary Assembly‘s suggestion to allow the Commissioner to lodge
complaints to the ECtHR80 was rejected due to fears of increasing the court‘s workload;
however, the process would arguably have had the opposite result as similar cases would be
brought together in group actions. The Commissioner could focus on cases which are
unlikely to be brought to justice by the victims themselves, carrying out the bulk of his work
in the newer democracies where people are generally poorer and more reluctant to take action
to secure their rights.81 This will be an important part of a coordinated approach by the
Council to bring newer democracies up to the standard expected by the organisation.
Furthermore, national reforms on a more general scale (for example, legislative amendments)
will only need to be made once, as one case will deal with different issues of the same
violation. It is more likely that Parliaments will remedy a grave violation rather than many
less serious ones, partly because national pressure will be motivated more easily for a big
change than a small one.
Leach persuasively argues that concerns that the Commissioner‘s power to bring
claims will compromise its advisory role behind the scenes are unfounded.82 In fact, if the
power is used selectively, it might enhance the Commissioner‘s position as it will strengthen
his soft law functions. Finally, giving standing to the Commissioner will alleviate the
shortcomings of the erga omnes approach which has a similar purpose, but which no State is
likely to use due to political considerations. The Commissioner‘s more prominent role
78
P. Leach ‗Strasbourg‘s Oversight of Russia – An Increasingly Strained Relationship‘ (2007) Public Law 640,
652-653.
79
This is an assumption made by the author deriving from the observation that when the Commission for Racial
Equality (CRE), the Disability Rights Commission (DRC) and the Equal Opportunities Commission
(EOC) were combined to form the Equality and Human Rights Commission, similar objections existed.
80
Committee of Ministers, Parliamentary Assembly Recommendation 1606 (27 June 2003).
81
European Court of Human Rights Annual Report 2008 (Strasbourg Registry of the European Court of Human
Rights 2008) 142. For example, despite Azerbaijan‘s serious human rights violations, it has one of the lowest
rates of applications to the ECtHR per 10,000 people.
82
P Leach ‗Human Rights Hotspots and the European Court‘ (2004) 154 New Law Journal 183, 183.
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bridges the gap between the organisation‘s legal and political procedures as the integrated
reporting process provides tools and information to the Committee to adopt a more robust
attitude against violators. Simultaneously, it strengthens existing mechanisms such as the
ECtHR‘s credibility and integrated national pressure and provides a medium through which
the relationship between the Council and the EU can develop further.
4
The Macro-Level: The Council‟s International Relationships – Better
Cooperation with the European Union
Today, neither the EU nor the Council can go forward with accession, but such a step would
be beneficial to both parties. If the EU is to justify its move towards a European
‗citizenship‘,83 genuine human rights protection is a necessary ingredient. Also, accession
will show to Member States that the EU can adequately protect human rights, thus avoiding
another constitutional rebellion like the one led by Germany in the 1990s.84 Finally, the EU
will acquire the right to defend itself in proceedings rather than having to rely on one of its
Member States.85 Simultaneously, the Council will formally become the supreme human
rights body in Europe, overriding conflicting interpretations of the EU Charter on
Fundamental Rights and reinforcing the need to transform the ECtHR into a constitutional
court. Judge Loukaides suggested86 that the significance of accession will largely be
theoretical because only in very rare cases will the ECtHR review the actions of EU
institutions. In fact, the ECJ will have to make fundamental changes to its interpretation of
article 230(4) (individual petition to the ECJ) if it wants to avoid article 6 violations. An
improved individual petition procedure will impact on the ECJ‘s jurisprudence and could
enhance cooperation between EU States, resulting in stronger alliances and more robust
attitudes in the Committee.
The common arena in which the two organisations work, which calls for greater
cooperation between them, is illustrated through the case of Apostolides v. Orams.87 The
issue was whether Apostolides, a Greek Cypriot owning a house in the occupied area, could
demand from the Orams, who had illegally acquired its title from a Turkish Cypriot, to vacate
the house and pay damages. He obtained a ruling from a Cypriot court88 that this was
possible and sought to enforce it in the UK under Regulation No 44/2001 which ensures the
free movement of judgments. The Court of Appeal asked the ECJ whether such a ruling was
enforceable in the UK, despite the Cypriot government‘s non-effective control in the
occupied area. The court ruled that the judgment was enforceable, making the ECJ a relevant
court in the Turkish/Cypriot issue, even though Turkey is not an EU Member State.
Although the ECtHR had recently held that the compensation regime introduced by the
‗Turkish Republic of Northern Cyprus‘ is in principle sufficient to meet the damage claims 89
and despite the fact that Apostolides had not applied to the Commission, damages were
payable. Following this decision, Greek Cypriots whose property has been sold to EU
citizens have a (more effective and quicker) alternative remedy to the ECtHR. Notably, had
an ECtHR judgment on this specific property claim existed, he would not have had recourse
83
Treaty Establishing the European Community art 17(1).
This culminated in the Solange cases delivered by the Bundesverfassungsgericht (the German Federal
Constitutional Court).
85
Interview with ex- ECtHR Judge Loukaides, Nicosia (2 February 2009).
86
ibid.
87
Case C-420/07, [2009] ECR 00.
88
Judgments dated 9 November 2004 and 19 April 2005 of the Nicosia District Court in the Republic of Cyprus.
89
Xenides-Arestis v Turkey, (App no 46347/99).
84
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to the ECJ, putting at a disadvantage those who sought redress through the Council. Finally,
Advocate General Kokott discussed whether her judgment would ‗undermine the efforts of
the international community to find a solution to the Cyprus problem,‘90 a matter which
should have arguably been dealt with by a political body, such as the Committee of Ministers.
The judgment might confer individual justice to Mr Apostolides, but it also emphasises that
the vague relationship between the two organisations is not to the Council‘s advantage.
Despite Protocol 14 making provisions about EU accession in the Council,91 it does
not include any other steps to clarify the relationship between the two organisations. Such
clarification would put pressure on existing and aspiring Members States, most significantly
Turkey. States such as Russia will remain largely unaffected, but the underlying theory
behind most of the suggestions in this paper is that a specific approach to smaller groups of
countries is more effective than a general tactic for all States. It has already been argued that
the Copenhagen criteria are vague and easily manipulated. The Council and the EU could
form a Joint Committee which could assess each EU Applicant State‘s improvement, bearing
in mind its national situation and resources. The Joint Committee should work with clear
criteria, untainted by political considerations as much as possible. Its suggestions could
indicate to the EU whether the State can become a Member and to the Council whether the
execution procedure is working effectively. Although these indications should not be
binding, they could justify and legitimise decisions of both organisations.
Nevertheless, the argument that the vagueness of the criteria is deliberate and
preferable to the alternative has its merits. No one can predict what will happen if Turkey is
told that it can never join the EU, but its efforts for human rights protection could
immediately stop. On the other hand, if it is given a definite date, it might lose its incentive
for improvement. However, for how long will human rights language be used as the EU‘s
scapegoat, compromising the Council‘s efforts? Arguably, if Turkey was to join the EU in its
current state, it would have to be excluded from the organisation the next day since it would
fall below the EU‘s internal human rights standards. Turkey might be unique in this respect
today, but this will not be the case for long. Numerous applications from Bosnians being
discriminated against by Eastern European States are going through the ECtHR at the
moment. In five to seven years, the human rights records of these States will resemble
Turkey‘s current record, but unlike Turkey they will be full Members of the EU. If the EU is
genuinely interested in protecting human rights, it will have to react to this – either through
exclusion or strong public criticism of their record. Had the Copenhagen criteria been
properly followed, both organisations would have avoided this situation.
Judge Loukaides92 suggested that a mechanism should exist whereby if a Member
State falls below ECtHR standards, it should automatically be excluded from both
organisations, creating a direct link between the EU and the Council and encouraging States
to work towards improving their human rights record even after they join the Council.
Penalties will range from a simple interim report to non-participation in the Committee and
finally exclusion from the organisations. However, this seems not only an unattainable but
also an undesirable suggestion. The two organisations are distinct and separate and should
remain as such, especially for such deeply political and controversial decisions. For example,
the EU cannot be expected to exclude Italy, due to article 6 violations, especially since Italy
also has a poor EU Directive enforcement record, yet this has never led to suggestions for its
exclusion from the EU. Clearly, part of the solution for ECtHR compliance is making the EU
adopt a more robust stand towards human rights violations. However, this can be achieved
90
Opinion of AG Kokott para 101.
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended)(ECHR) Protocol 14 art 17.
92
Interview with ex- ECtHR Judge Loukaides, Nicosia (2 February 2009).
91
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through subtler means instead of a direct (and unequal) relationship of dependence between
the organisations. For example, at the moment, the Fundamental Rights Agency produces a
report of violations from Members States, yet this report has not received considerable
attention by the media. Instead, the report could be published by the European Commission,
generating enough publicity to motivate States into action, through the usual national
pressure mechanisms.
D
CONCLUSION
The Council is the most effective human rights organisation worldwide; this does not
necessarily mean that it is good enough. Its failure to notice that in the last decade its
jurisdiction has expanded considerably, has led to inadequate steps for reform. The
Explanatory Report‘s conclusion that supervision generally works well93 is not based on any
empirical data. In fact, in 2003, 520 new cases were sent to the ECtHR and 3540 decisions
were pending consideration in the Committee; in 2007, the numbers went up to 718 and 6017
respectively.94 Since ‗the acid test of any judicial system is how promptly and effectively
judgments are implemented,‘95 effectiveness should not be determined by how many cases
are being tried every year, but how many of these result in the stopping of a violation.
Responsibility for this rests with the Committee, yet it receives minimal attention compared
to the ECtHR. We must stop paying lip service to the effectiveness of the court and look at
the organisation as a whole.
Over the years, the Council‘s judicial branch has developed to such an extent that it
can only be compared with the ECJ and national supreme courts. Yet, its political branch
remains largely underdeveloped, failing to keep up with the responsibility the court‘s success
has imposed on it. The inconsistency in these two branches‘ development, what has been
termed ‗the legal/political gap‘, has grave consequences for the organisation‘s future. As a
matter of political reality however, the workings of the Committee cannot change
considerably and arguably this is for the better. Ultimately, international law, especially
human rights, comes down to politics and diplomacy and the Committee should remain the
forum where these come into play. However, although the Committee is the protagonist in
the implementation procedure, it cannot lift the entire burden on its own. If a more robust
approach is impossible, then some of the responsibilities which traditionally fell within its
ambit should be allocated to other Council bodies. A more coordinated approach, both within
the Council and internationally can adequately overcome the Committee‘s limitations while
maintaining its advantages.
History has shown that either international organisations become stronger and acquire
their position in the world scene or they become victims of their stronger Members‘ whim.
Fifty years after its creation, the Council is at its crossroads: unless it takes a step forward
soon, events will supersede it and it will inevitably be left a step back. Arguably a change in
a single working mechanism will be politically impossible to agree to and ineffective due to
the range of different problems it will have to address. A more in depth understanding of the
incompliance of Member States, shows that systematic violators have diverse reasons for
their attitudes, which require different solutions. Only by adopting this seemingly
93
Explanatory Report of Protocol 14 para 17.
Council of Europe ‗Human Rights and Legal Affairs.‘
<http://www.coe.int/t/e/human_rights/execution/04_statistics/StatisticsExecutionJudgments_July07.asp#TopOf
Page> (26 February 2010).
95
Steering Committee for Human Rights ‗Guaranteeing Long-Term Effectiveness of the Control System of the
European Court of Human Rights‘ (Report) (April 2003) CDDH 2003/006, 34 para 1.
94
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fragmented approach can vastly different States be effectively united under a single
organisation.
153