‘Left to die’ boat reveals collective failure to rescue migrants at sea

 Posted by: Heijer Maarten den

This week, a committee of the Parliamentary Assembly of the Council of Europe released a draft resolution and report on the fateful voyage of what has been dubbed the ‘left to die’ boat – a story that was first picked up by The Guardian. The tragedy involved a boat carrying 72 Sub-Saharan migrants who fled from the conflict in Libya in March 2011, but ran into trouble and, despite a distress call by satellite from the ship’s Ghanaian “captain” to an Eritrean priest living in Italy who alerted the Rome Maritime Rescue Coordination Centre (Rome MRCC), eventually washed up on the shores of Libya 15 days later. By then, only 11 people were still alive.

The story was made all the more rueful because of testimonies from the survivors that, while adrift somewhere between the Italian island Lampedusa and Libya, they had made contact with several boats (commercial fishing vessels and allegedly an aircraft carrier belonging to France, which was however denied by France and NATO) and even a military helicopter which had lowered down bottles of water and biscuits into the vessel and then flew away, never to return – but their calls for help were all but ignored.

The report finds that pretty much everything went wrong: there was a failure of NATO, the United Nations and individual States in planning the Libyan military operations and preparing for an expected exodus by sea; a failure of the Italian and Maltese authorities in coordinating the rescue and launching a rescue operation; communication misunderstandings; a failure of NATO vessels in the vicinity and commercial fishing boats to follow up on repeated navigational distress warnings. In short, the report concludes: a collective failure.

Although the report was unable to verify all allegations and leaves many questions – especially the legal ones – unanswered, it vividly uncovers how all kinds of dynamics (war, migration) and the sharing of responsibilities between States and international organizations may result in no-one actually undertaking any action.

For me, this is the Council of Europe at its best. Although mainly known for housing the European Court of Human Rights – the Parliamentary Assembly, but also the Committee for the Prevention of Torture (CPT), have often engaged in fact finding activities that later turned out to have major political repercussions. Think, for example, of the frequent CPT’s visits to the imprisoned PKK-leader Öcalan on Imrali island and very recently its visit to the detained former Ukrainian prime-minister Yulia Tymoshenko (see also here and here). Think also of the persistent efforts of Swiss senator Dick Marty and member of the Parliamentary Assembly, to uncover the spider’s web of extraordinary renditions and secret CIA prisons in Europe after 9/11. His efforts eventually lead, some five years after his first report and despite earlier denials, to evidence that such prisons had indeed existed in Europe.

As to the present report’s legal implications, one might expect that it would at least re-open the debate on necessary amendments to the maritime SAR framework (after the 2004 overhaul of the Annex to the International Convention on Maritime Search and Rescue). Some specific points mentioned in the report concern the distribution of responsibilities for coordinating and undertaking rescue operations (one obvious issue was the responsibility vacuum for Libya’s SAR zone), the question of how to enforce duties of rescue on the part of private shipmasters, and the interpretation of what constitutes a vessel in distress (should not any unseaworthy and overcrowded vessel with barely any supplies, navigational equipment and an untrained captain be considered to be in distress, regardless of whether it is still running on its engines? – something which according to the report was disputed by the Rome MRCC).

And then there is the question of distribution of responsibilities between NATO and its Member States. In a letter to rapporteur Ms. Tineke Strik from the Netherlands, NATO explained that it had forwarded all emergency alerts to NATO task force units under its operational control. It further succinctly referred to information provided by the Spanish and Italian authorities that their vessels in the vicinity at the time had often engaged in rescue operations and that they were well aware of their relevant obligations under maritime law. It is at least disturbing to see how readily NATO command discharges itself of any responsibility – and fails to announce for example, that it will try to get to the bottom of things.

Perhaps more than anything, the whole episode signifies how European authorities and societies have learned to look away from the constant flow of migrants packed in makeshift vessels trying to make their way to Europe. The foremost challenge to be confronted then, is reminding ourselves that international legal standards apply equally to all those who embark upon such fateful journeys. This very notion was recently underscored by the European Court in the case of Hirsi v Italy.

EU Aviation scheme as a countermeasure against other ICAO member states?

 Posted by: Nollkaemper André

The New York Times recently reported that China, the United States and two dozen other countries are looking at coordinated countermeasures against Europe — including putting pressure on European airlines and other industries — if the EU tries to enforce the EU Aviation Directive, that requires airlines to pay for their greenhouse gas emissions.

Much has been said on the legality of the Aviation Directive. Joshua Melzer just published a good analysis of the Directive and its WTO compatibility in the Journal of International Economic Law. In the ATA case, the ECJ considered its compatibility with customary international law (the principles of territoriality and of sovereignty), the Chicago Convention, and the Open Skies Convention, and eventually upheld the legality of the Directive (case C-366/10, Judgment of 21 December 2011).

One question that appears so far to have received very little attention is whether, even if the Directive would violate international law, it could not be justified as a response to the collective failure of the third states for setting standards for the airline industry.

The European measures are in part a response to the failure of the International Civil Aviation Organization (ICAO) to move quickly enough to establish standards and goals for greenhouse gases from aviation, as required under the Kyoto Protocol. Article 2(2) of the Kyoto Protocol stipulates that Annex I parties ‘shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively.’

Attempt to realize such limitations have come to nothing. It is true that the obligation is not formulated in very hard terms (‘shall pursue limitation’), and in the ATA Case the Court found that this provision ‘as regards its content, cannot in any event be considered to be unconditional and sufficiently precise so as to confer on individuals the right to rely on it in legal proceedings in order to contest the validity of Directive 2008/101’ (para 77). However, the fact that a provision does not meet the high criteria for direct effect of EU legislation does not mean that States cannot breach the obligation vis-à-vis each other. At one point, the lack of will and effort to adopt reductions in the framework of ICAO may suggest that states do not pursue such reductions.

Already in the Sixth Community Environment Action Programme (Decision No 1600/2002/EC), it was provided that the Community would identify and undertake specific actions to reduce greenhouse gas emissions from aviation if no such action were agreed within the ICAO by 2002. The EU Member States have consistently strived in the ICAO framework for global regulations — to no avail. Regional action now surely has a political legitimacy. Even if it would be in violation of other state’s rights (a proposition that was questioned by the ECJ) there is some ground in the argument that this is a timely response to a shared responsibility of the defaulting third states, intended to spur these states to action.

It might be argued that this construction encounters the problem that the obligation that would be breached, and that would legitimize the Aviation Directive, is the Kyoto Protocol, yet the intended action eventually would have to come from ICAO, which obviously is not a party to that Protocol. However, we could construe the measures as targeted at the states that are both party to Kyoto and ICAO, and that should fulfill their obligation under Kyoto by taking action in the framework of ICAO.

The construction nonetheless is not entirely without obstacles. One is that the EU measures appear to apply to all states, irrespective of their particular obligations under the Kyoto Protocol, and notably also irrespective of the principle of common and differentiated responsibilities — which may make the proportionality argument more difficult.

Another issue to be considered is whether the EU and its member states are actually injured by the lack of willingness of other states to perform the obligation under article 2(2), in a way that would entitle them to take counter-measures, However, it should be taken into account that the failure by the ICAO member states to adopt necessary measures that complied with article 2(2), in effect made it difficult for the EU member states to comply with their obligations under Kyoto. This point, made by AG Kokott (para 186 of her opinion) opens the door to an argument based on the exception of non-performance.  Whatever the status of this exception as an independent defense to wrongfulness (the ILC eventually left it aside), it does straddle into and support an argument based on countermeasures.

It may well be that eventually the EU has to bend for economic pressure from target states, that may hit European industries hard. But on its face, the EU measure has not only the moral but also the legal high ground.

From Nicaragua to R2P: Continuity and Change

 Posted by: Nollkaemper André

Cross posted on Opinio Juris

The ICJ’s decision in Nicaragua surely is one of its most cited judgments. It remains the leading authority on attribution of conduct of non-state actors and on (collective) self-defense. It also is a popular point of reference in analyses of the formation of customary law and on the jurisdiction of the Court. In his excellent The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, Marcelo Kohen points out that the Judgment also is a relevant source for understanding the concept of responsibility to protect (R2P), even though that concept only came into existence some twenty years after the judgment.

Kohen rightly argues that R2P, by placing emphasis on collective security and discounting unilateral action, has been placed firmly in the footsteps of – and is fully consistent with – Nicaragua’s holdings on non-intervention, and that there is nothing in the concept of R2P ‘allowing for a reversal of the principle of non-intervention or otherwise allowing states to intervene without SC authorization.’ (at 163).

It is hard to expect otherwise. The application of the concept of R2P continues to give rise to controversies between states and other relevant actors. The small step forward that appeared to be brought by SC Res 1973 (2011) proved to be two substantial steps backward, following the overly broad interpretation that led NATO to overthrow Gadaffi. The absence of consensus on meaning, scope and implementation at the political level obviously means the lack of a basis for a change in the relevant principles of international law, notably those on protection of human rights, non-intervention and the use of force.

Nonetheless, as Julia Hoffmann and I argued in our recent book, rereading Nicaragua in the light of the wide variety of controversial issues surrounding R2P makes sense. On the one hand, the US had based its support for the contras in part on the fact that Nicaragua had committed violations of human rights (eg par. 267), the same rationale that underlies the aspirations of many who relied on R2P in the context of Libya or Syria. On the other hand, the main ambition of the US was not so much to protect human rights as to (support the) overthrow of the regime. This may not be a generally accepted aim of R2P doctrine, but it certainly can be part of the agenda of R2P supporters. The middle way that the Court had to find between the laudable ambitions to protect human rights on the one hand, and the no-go area of allowing a state to support the overthrow of a foreign regime, is potentially relevant to the R2P debate.

The main relevance of the judgment for R2P does not lie so much in the parts dealing with use of force – what R2P has to say on this is clear: nothing in R2P envisaged any change in the established rules on the use of force. Rather, the judgment is of interest for what it does (not) say on policy measures that seek change (or protection) in a foreign state, short of the use of force.

Kohen rightly points out that the Court’s key holdings on this point are of continuing relevance for R2P: even an argument based on the alleged need to protect human rights cannot justify interventionist policies, whether these are carried out by use of force or short of the use of force (such as funding the contras) (par. 268). If we consider the agenda of western states in regard to Libya and now Syria, in particular their aim to support insurgents, this is a message that bears repetition. The surge in attention for human rights protection since Nicaragua has not really changed the cardinal rule that such support may lead to a breach of the prohibition of intervention.

But this is about as far as Nicaragua goes. Beyond this, it hardly helps our understanding of the legality of policies that seek to protect civilians against repressive government that may qualify as international crimes (and thus trigger R2P). The key question is not so much whether intervention is or is not prohibited (clearly it is), but what does and what does not amount to intervention. Unsurprisingly given the facts that were before the Court, there is to be a wide gap between what the Court had to say in Nicaragua on the one hand, and the variety of policy questions that may be considered in applying the principle of R2P. Moreover, it is not in all respects clear that the sometimes strict wording of the Court has survived the passage of time.

In particular two fundamental questions stand out. One is what is and what is not covered by the prohibition of intervention. The other is how otherwise prohibited intervention may be justified by the nature of the acts to which R2P related policies respond.

As to the first question, the Court did not proceed much beyond the often quoted definition that ‘A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely… Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention’ (par. 205). One problem here is the term ‘free’. Surely it would not be contended that human rights policies are ‘free’ ones. Yet we cannot assume that the Court meant that in regard to such policies there can be no prohibited intervention (see below on the link with countermeasures).

Leaving this aside, the two most concrete clues that the Court provided as to what constitutes intervention, were that funding contras is not covered by use of force, but is covered by the prohibition of intervention (par. 228), and that economic sanctions are not covered by prohibited intervention (par. 245). Kohen provides a few other examples (at 161, another article of relevance can be found here), but the spectrum of policy measures that have been considered as part of R2P is very diverse. Does the prohibition of intervention prohibit the setting up of ‘safe zones along the Turkish-Syria and Jordan-Syria border with humanitarian corridors leading up to them’, as proposed by some European politicians? Does it prohibit support to NGOs who campaign for freedom? Does it prohibit humanitarian assistance, through local or transnational NGOs? On the latter question, the Court suggested that this would be allowed (par. 242), but added, by referring to the principles adopted by the Red Cross, that such assistance should make no discrimination as to political opinions. Yet, it would seem that humanitarian assistance in Libya was channeled primarily to victims among the insurgents, rather than to the wounded on the side of the government forces. We cannot really say that Nicaragua is of much help in distinguishing what is prohibited intervention and what is not. In this respect, a fresh look at recent state practice is likely to yield more clues than the Court provided.

The second question is what is the legal relevance of the fact that the conduct to which R2P-based policies respond, constitute wrongful acts (as far as the state is concerned) and international crimes (as far as individuals are concerned). The judgment is less than clear here. The Court suggested that human rights monitoring was a task of international institutions rather than states (par. 267), but then noted that ‘the use of force could not be the appropriate method to monitor or ensure such respect’ (par. 268), perhaps suggesting that measures short of the use of force could be justified. But it did not explore this in terms of counter-measures. This link between (non-)intervention and countermeasures was also hinted at in the already cited rather confusing sentence that ‘A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely.’ (par. 205) This cannot be right as a general proposition. Even if states are not permitted to decide freely, for instance by committing large scale human rights abuses, intervention surely still can be prohibited. But one way to make sense of it is by linking intervention to (collective) countermeasures. It then could be argued that if a state is no longer to decide freely on human rights protection, and would carry out policies that contravene the limits that international law set to that freedom, other states might be entitled to take countermeasures. The Court expressly confirmed the ban on armed countermeasures in this context (par. 211, par. 249) and otherwise suggested to embrace a ban on third-state countermeasures (par. 249). This latter position remains of course contentious (cf Art. 54 of the Articles on State Responsibility), but it is not necessarily clear here that the rather strict wording of the Court is in keeping with the practice of R2P related policies – and the response thereto.

In sum, while Kohen correctly observes that there is nothing in the concept of R2P that leads to a reversal of the principle of non-intervention, it also is true that the contents of (non-)intervention, as well as the exceptions that are based on prior crimes, was left ambiguous by the Court and that it is precisely in these two areas that R2P relevant practices (whether or not based on express reference to R2P) reduce the continued relevance of Nicaragua.

The Responsibility to Protect: Why Libya but not Syria? – Panel Discussion and Book Launch

 Posted by: Have Nienke van der

On the 8 March, the book “The Responsibility to Protect: From Principle to Practice” was launched at Spui25 in the center of Amsterdam. The launch could not have been more timely in light of the continuing reports of atrocities being committed in Syria and the discussions surrounding the inaction of the United Nations Security Council (UNSC). Appropriately so, the topic for discussion was: Why Libya but not Syria? The panel consisted of Prof. André Nollkaemper, Prof. Ko Colijn and Frank Majoor and was moderated by Juurd Eijsvoogel.

Opening the panel discussion, Prof. André Nollkaemper described how the responsibility to protect (R2P) has quickly descended from its finest hour in March 2011 to its deepest crisis in 2012. The intervention in Libya was based on widespread agreement that the threats posed by Colonel Moammar Gadhafi warranted a forceful response. The question is why Syria has not attracted similar attention based on collective action. Given the widespread use of sanctions, the true question for this meeting boils down to why there has been no military intervention. The use of force can only be allowed by the UNSC under Chapter VII of the United Nations Charter. This is somewhat paradoxical, because sometimes unilateral action is the only way to prevent or halt atrocities; a point forcefully made by Daniel Goldhagen in the book. Under current positive international law it cannot be said that the UNSC is obliged to use force. Even though the vetoes of China and Russia were strongly condemned in the political arena, they still have to be characterized as legal.

Consequently, the matter comes down to the question of why the UNSC has not allowed the use of force in this particular case. According to André Nollkaemper, the main political explanation can be found in the fact that the R2P concept was abused in the case of Libya. The NATO used the mandate to protect civilians to secure regime change, despite efforts of the African Union and neighbouring states to come to a negotiated solution. Overthrowing a government can be legal under international law, but in this particular case those conditions were not satisfied. Western Europe and the United States mistook the widespread support for the R2P for support for installing a Western-style democracy. The tragedy in this course of events is that the UNSC’s monopoly on the use of force was bolstered, while political support for military intervention based on the R2P concept has waned.

Frank Majoor continued the discussion by describing the concept of the R2P as a ‘game-changer’ on its way to becoming a legal norm. He stressed that military intervention based on a resolution of the UNSC is only to be used as a last resort and is not a flexible basis for intervention. The more innovative and important contribution of the R2P is the focus on prevention and assistance efforts. According to Frank Majoor, the objective of the NATO in Libya was not on regime change. It was merely the practical result. He stated that military operations, when started, must end in a successful manner. This does not mean that there is no possibility to negotiate about intermediary solutions.

The selectivity critique with which the R2P is now faced is, in his opinion, not completely well-founded. Syria is simply a different case when compared to Libya and lacks the wide regional and public support for military intervention. An active process is still being undertaken under the banner of the R2P. Of those, the diplomatic mission under leadership of former Secretary General Kofi Annan is most likely to lead to some form of success. Whether the ultimate stage of military intervention will be reached remains to be seen. According to Frank Majoor, selectivity is always part of reality, but not an excuse for absolute inaction.

Finally, Ko Colijn illustrated with a compelling set of figures that the classic inter-state war is fading and intra-state conflicts are on the rise. The R2P is one of the ways of responding to this reality, by attempting to strike a balance between neo-colonialism and non-intervention. However, the international community is reluctant to acknowledge it as a legal norm because it is to some degree still seen as illegitimately meddling with a state’s internal affairs. The claim that the R2P has been stretched in the case of Libya to make regime change possible leads to the very complicated discussion of when and which governments can legitimately be toppled. Therefore, the R2P was, from the start, doomed to become a responsibility to select. This is difficult to explain to the world’s population, as expectations have been set high. Nevertheless, the R2P has shifted the burden of evidence from the countries which are in favor of intervention in large scale atrocities to those who are not. This is illustrated by the strong criticism that Russia and China had to endure after their vetoes.

The question remains whether the R2P also contains a responsibility to succeed. Tied in with this is a question which was raised by a member of the audience: whether it is still possible to wage an “old-fashioned civil war”. According to Ko Colijn, the protection efforts should always be targeted at the whole population, which almost inherently means that you support the opposition. It was added that the level of government control is indeed another important difference between Libya and Syria. The discussion focused on several other interesting matters, such as the concrete measures which could be taken in Syria at the moment, whether other international organizations could take action in the future and whether a reform or institutionalization of the decision making process could help properly implement the R2P.