The 2013 Southeast Asia haze – a shared responsibility?

 Posted by: Schechinger Jessica

Last summer, hazardous levels of air pollution affected the health and lives of many people, the economy (e.g. disruptions of air traffic due to reduced visibility, decreased tourism and business activities) and the environment of multiple states.[1] In both Singapore and Malaysia, record breaking levels of atmospheric pollution were measured.[2] Large parts of Indonesia, Singapore and Malaysia were covered in smog, and the smoke haze[3] even spread to Thailand and Brunei.

Although it was at its worst in June 2013, the annual haze reportedly returned at the end of July 2013 (see here, here and here) and it might not be (completely) over for this year since most forest fires are set from August to October.

The haze of 2013 was not an isolated incident since forests and peatlands are regularly set on fire in Indonesia, especially on the island of Sumatra, in order to clear land for palm oil plantations and the pulp and paper industry. This has also resulted in the burning of habitat of endangered species such as orangutans, rhinos, elephants and tigers, which has even gone as far as clearing land of a National Park on Sumatra (see here for the 2013 WWF Report Palming off a National Park – Tracking Illegal Oil Palm Fruit in Riau, Sumatra). The remaining rainforests in Indonesia (on Borneo, Papua and Sumatra) are rapidly disappearing, mainly due to the fact that Indonesia is the world’s leading producer of palm oil, and a major actor in the pulp and paper industry (see here  and here).

Despite being formally prohibited by the Indonesian government, the illegal ‘slash-and-burn’ method is widely practiced as an efficient and cheap technique to clear land. These fires often get out of control, resulting in a thick smog that pollutes the air, which regularly spreads to neighbouring countries. The formal prohibition is poorly or not enforced at all, and widespread corruption in Indonesia (see here, here, here and here) enables forest degradation/land clearing which results regularly in transboundary smoke haze.

It has been however suggested that Singaporean and Malaysian corporations on Sumatra also bore ‘some’ responsibility for the haze since most fires on Indonesian territory are reportedly directly or indirectly caused by Malaysian and Singaporean owned companies. Currently, investors from Singapore and Malaysia – by using joint ventures with local corporations – are controlling more than two third of the entire palm oil plantation area of Indonesia. Moreover, some companies allegedly linked to fires are owned by (Malaysian) government-linked companies.

Therefore, this case of transboundary haze pollution is a prime example of a harmful outcome (e.g. the pollution level was harmful to public health) that was caused by several actors. A combination of lack of action on the part of Indonesia (the haze originated from fires on the island of Sumatra), and acts of companies and individuals have all directly or indirectly contributed to the fires, resulting in hazardous smog. This blog post will use a broad definition of responsibility, thereby including obligations to prevent transboundary environmental harm.

 

Applicable international law

The involvement of Indonesia might potentially trigger its responsibility in view of the applicable rules of international law. Under customary international law, a state must ensure that activities taking place in its territory do not cause transboundary harm. This ‘no harm’ principle is a fundamental principle of international environmental law, first established in the Trail Smelter case, and discussed in the International Court of Justice’s judgment in the Pulp Mills on the River Uruguay (Argentina v. Uruguay) case.

The ‘no harm’ principle is also part of the legal framework of the Association of Southeast Asian Nations (ASEAN). Although Indonesia is not yet a party to the 2002 ASEAN Agreement on Transboundary Haze Pollution (AATHP or agreement), Article 3(1) prohibits also the causing of ‘harm to human health of other States’. It has been argued in The Borneo Post, that the obligation to not cause transboundary harm, and the duty to compensate for the damage caused might not fully apply since they are ‘constrained by the rule of State sovereignty, reflected in the “Asean Way”, especially in developing a State responsibility and liability system at regional level, which is not a politically viable option.’ The argument that the obligation to not cause transboundary harm might not be fully applicable in the ASEAN context is a weak one, since this is a rule of customary international law, also applicable to ASEAN member states such as Indonesia.

The focus of this agreement is on the parties to cooperate in the development and implementation of measures to prevent, monitor and mitigate transboundary haze pollution. Parties cannot be sanctioned by the ASEAN in case they fail to comply with the provisions of the treaty. It seems that the ASEAN ‘is relying more on prevention and cooperation measures rather than establishing a liability regime or adopting formal legal instruments to protect the environment in addressing shared environmental problems’. The haze is considered to be a ‘common problem’ that should be solved ‘together in the spirit of Asean solidarity’ (see here or here). It can be noted that besides the AATHP, there is a history of environmental cooperation within ASEAN, including several haze related soft law instruments.[4] There is a Sub-Regional Ministerial Steering Committee, composed of ministers from the most affected states (Brunei, Indonesia, Malaysia, Thailand and Singapore), that addresses transboundary haze pollution. Indonesia has furthermore bilateral cooperation agreements with Malaysia and Singapore where the two latter help Indonesia to address transboundary haze issues such as fire prevention and capacity building. Indonesia also participates in the regional ASEAN Peatland Forest Project. Singapore attempted to raise the haze issue at the United Nations General Assembly in 2006, as it saw global implications, and thought international assistance and resources were needed. However, Indonesia intervened and stopped a joint ASEAN/Singaporean statement on the haze topic from being issued. Indonesia indicated that the haze was a domestic problem, and it did not wish any interference with their domestic affairs. According to Indonesia, the regional and bilateral arrangements to address the problem were enough, therefore the issue (remains) to be resolved at the ASEAN level, in the spirit of cooperation.[5]

Whatever its shortcomings, and the fact that Indonesia is not yet a party to the agreement (although it benefits from the treaty financially, through the Haze Fund), it is a positive sign that Indonesia reportedly seeks to ratify the AATHP by early 2014. Tommy Koh and Michael Ewing-Chow (see here or here) rightly observe that pending ratification, Indonesia is under the obligation to abstain from acts that would defeat the purpose of this agreement on transboundary haze pollution it has signed.

 

The primary responsibility of Indonesia

At the end of June 2013, the President of the Republic of Indonesia eventually apologised to the people of Singapore and Malaysia, saying that ‘Indonesia had no intention to cause this. And we will continue to bear responsibility to overcome what has happened… Whether it is an Indonesian company or foreign company, the law will be applied firmly and fairly.’ President Yudhoyono gave ‘an assurance that action will be taken against errant plantation companies, whether based in Indonesia, Singapore or Malaysia or elsewhere.’ He furthermore stated that ‘We accept it is our responsibility to tackle the problem’ (see here, here) and here), and said ‘The fact is the haze was from Indonesia, so we take responsibility’, hereby accepting that Indonesia has the obligation to (ex ante) prevent activities that take place in its territory from causing transboundary harm and to (ex post facto) investigate incidents and in short, take action against the polluters.

As said by the Singaporean Minister for Foreign Affairs and Law, Kasiviswanathan Shanmugam, the primary responsibility for taking (legal) action against corporations lies with Indonesia. It would seem that Indonesia has on the basis of customary law (the ‘no harm’ principle), as well as its acceptance of responsibility and assurances the following obligations. First, before a haze occurs, the primary obligation to prevent the fires as much as possible (oversight of the government at the local level is in any case required); second, during a haze, the obligation to respond to fires by mitigating and controlling the escalation of fires and the subsequent spreading of smoke haze; and third, after a haze has occurred, Indonesia is responsible for law enforcement through legal action (criminal and or civil law suits) against corporations that are operating on its territory, but also against individual wrongdoers who (directly or indirectly) caused the fires on Sumatra.

It is reported that Indonesian investigators are working on criminal cases against eight corporations (all owned by Malaysian investors) that are suspected of being responsible for the fires causing the haze of June 2013 (see here and here). The latest news is that of these eight corporations, one Malaysian company has been charged with environmental damage, and four other companies are still investigated for alleged involvement in these fires (see here and here). It is furthermore reported that the police of the Riau province is investigating 19 cases which involve 25 individuals (although it is unknown whether they are independent farmers or employees of companies) and a Malaysian palm oil corporation for setting fires in June and July 2013.

 

The responsibility of Singapore and Malaysia

As an Indonesian official rightly suggested, Singaporean and Malaysian corporations in Sumatra also bore ‘some’ responsibility for the haze. This responsibility could be dealt with by Singapore and Malaysia through the (subsidiary) option of extraterritorial legislation, as suggested in an op-ed in The Straits Times and The Jakarta Post. In the op-ed, Tommy Koh and Michael Ewing-Chow argued that extraterritorial legislation against ‘such acts of pollution’ is an option for states such as Singapore and Malaysia in order to be able to prosecute plantation owners (who they consider to be ‘the main culprits’) for acts that harmed them and their people, but occurred outside their own territory (see here or here).

At present, investors from Singapore and Malaysia – by using joint ventures with local corporations – are controlling more than two third of the entire palm oil plantation area of Indonesia. A complicating factor is that the palm oil sector in Southeast Asia is ‘regionalised’, and ‘plantation companies cannot be easily identified with a specific national home base’.[6] For example, some companies that are under investigation in Indonesia are owned by government-linked companies in Malaysia. Malaysia and Singapore could deal with companies that are owned by investors having their nationality and companies that are incorporated in Malaysia or Singapore. This is important since evidence suggests that big plantation corporations ‘were systematically setting fire to both peatlands and other areas for land clearing’.[7] In addition, the question arises whether it can be argued that since reportedly Malaysian government-linked companies are involved in the fires leading to the haze, Malaysia has stronger obligations concerning this haze situation than for example Singapore.

Regarding Singapore, Minister Shanmugam said that extraterritorial legislation is being considered by the Attorney-General to tackle this recurring problem. He furthermore stated in July 2013 that: ‘As to whether Singapore-linked companies are involved, we have formally sought clarification through a diplomatic note, and have requested that Indonesia provide any evidence of wrong-doing that Indonesia has. We are awaiting Indonesia’s response.’ Furthermore, Singapore requested Indonesia to share land concession maps that might help to make plantation companies accountable for setting the fires that caused the smog haze in Singapore and Malaysia. Singaporean officials are reportedly considering legal action against two corporations.

 

Concluding remarks – the ASEAN approach to the transboundary haze problem

Although the costs of the haze were high, no legal action (e.g. of Thailand, suing a combination of states involved) on an interstate level is to be expected. Furthermore, Indonesia accepted its responsibility and apologised for the haze, which may qualify as a form of satisfaction under international law for the affected state(s).

In the ASEAN context, the focus is on cooperation between states, which is the ‘ASEAN Way’ of doing things. The transboundary haze pollution is considered to be a ‘shared environmental problem’ of the ASEAN member states. The haze is seen as a ‘common problem’ that should be solved ‘together in the spirit of Asean solidarity’ (see here or here). It remains to be seen whether such cooperation and information sharing will eventually lead to a determination of accountability of all actors who contributed to the haze.

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[1] Two people reportedly died in June 2013 due to the fires in the Riau province, Indonesia, see here. Contributions of natural causes to the haze (e.g. during El Niño years) will not be dealt with here.

[2] The Pollutant Standards Index (PSI) was some days far above the ‘hazardous’ level in both states. A record for Singapore was reached on 21 June 2013 when the level was 401 locally, and a PSI level of 495 was measured at Port Klang, Malaysia, see here, here, and here.

[3] Article 1(6) of the 2002 ASEAN Agreement on Transboundary Haze Pollution defines ‘haze pollution’ as follows: ‘smoke resulting from land and/or forest fire which causes deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment’. Article 1(13) defines ‘transboundary haze pollution’ as: ‘haze pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one Member State and which is transported into the area under the jurisdiction of another Member State’.

[4] For an overview see Koh Kheng-Lian, ‘A Breakthrough in Solving the Indonesian Haze?’, in Sharelle Hart (ed.), Shared Resources: Issues of Governance, IUCN Environmental Law and Policy Paper No. 72 (2008), para. 12.3.1-12.3.2, available here.

[5] Ibid., para. 12.5.6.

[6] Helena Varkkey, ‘Patronage politics as a driver of economic regionalisation: The Indonesian oil palm sector and transboundary haze’ 53(3) Asia Pacific Viewpoint (2012), pp. 314-329, at p. 321 and 315, available here.

[7] Ibid., p. 315.

The Legal Limbo Continues: Update on the Detained Witnesses at the ICC

 Posted by: Irving Emma

In October 2012 and January of this year the SHARES blog posted about the situation of Congolese witnesses detained at the International Criminal Court (ICC) in The Hague. Their detention continues, and while the resolution of their legal status is one step closer, it is also as illusive as ever, due to a decision of the Amsterdam District Court.

A detailed background to the situation can be found here, but can be briefly summarised as follows. Four individuals, detained in the Democratic Republic of the Congo (DRC) on charges relating to the on going armed conflict in the country, were transferred to the ICC detention unit in May 2011 in order to give evidence as witnesses. When the witnesses concluded their testimony, they applied for asylum in the Netherlands. Since that time they have remained detained and now find themselves in a legal limbo with neither the ICC nor the Netherlands willing to assume responsibility for their fate.

On 14 October 2013, the Amsterdam District Court ruled on an appeal against a decision to not grant refugee status to the witnesses. The Court held that the Secretary of State of the Department of Security and Justice did not err when he excluded the witnesses from the protection of the Refugee Convention. This was done on the basis on Article 1F, which states that persons suspected of involvement in crimes against humanity are not protected as refugees. The reason for their detention in the DRC prior to coming to the Netherlands was indeed the suspicion that they were implicated in the killing of UN peacekeepers (although they were never formally charged).

Despite not gaining the refugee status they sought, the Amsterdam District Court did provide some protection for the witnesses. In effect, it gave them the benefit of the complementary protection afforded by the European Convention on Human Rights (ECHR).

The Court found that if the witnesses were returned to the DRC, this would constitute a violation of Article 6 ECHR. They began by quoting the Othman case:

“It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country.”[1]

And go on to quote the following passage from Al-Moayad:

“A flagrant denial of a fair trial, and thereby a denial of justice, undoubtedly occurs where a person is detained because of suspicions that he has been planning or has committed a criminal offence without having any access to an independent and impartial tribunal to have the legality of his or her detention reviewed and, if the suspicions do not prove to be well-founded, to obtain release.”[2]

The District Court found that the detention of the witnesses in the DRC had been unlawful since 2007, because the basis for their detention was never renewed by the domestic courts. This, combined with the fact that they had never been formally charged with an offence, rendered the situation in the DRC a flagrant denial of justice. As such, their return to the DRC would be contrary to Article 6, and it is on this ground that the decision of the Secretary of State to return the witnesses was overturned.

It is interesting that the Court bases its decision on Article 6 of the ECHR. As reported previously on this blog, the European Court of Human Rights held in the Longa[3] case that the matter of the witnesses’ on going detention was outside the jurisdiction of the ECHR under Article 1, due to the fact that they are on ICC premises. The Amsterdam District Court, in the decision of 14 October, dealt with this by confining Longa’s applicability to claims brought under Article 5 ECHR. The rationale for this is grounded in the ‘equivalent protection’ doctrine[4] – as far as detention is concerned, the ICC is able to offer protection equivalent to that otherwise owed by the Netherlands under the ECHR. The same however cannot be said of the DRC; the ‘equivalent protection’ doctrine deals with international organisations, not states. It was found that the guarantees offered by the DRC as to the fair trial of the individuals were insufficient.

From the perspective of sharing responsibility for the human rights of the witnesses, the Amsterdam District Court appears to be saying that where the reach of the ICC ends, the role of the Netherlands must begin. In this way, there is no gap in the protection of the witnesses. The Netherlands is not free to claim that the witnesses are solely within the jurisdiction of the ICC, as the Longa case seemed to suggest. Rather, where the ICC involvement ends, so does the presumption of equivalent protection. At this point the obligations of the Netherlands are engaged under the ECHR.

It would have been interesting had the Amsterdam District Court addressed the possibility that time spent detained in the Netherlands may somehow have contributed to a violation of Article 6 ECHR, despite this not being raised by the parties. Instead the Court examines the issue entirely as a non-refoulement matter. There is no consideration of the prospect that the period of more than two years in the Netherlands was an element of the Article 6 violation. The quote from Al-Moayad used by the Court to define a flagrant denial of justice suggests that detention without access to review of that detention could be a violation of Article 6. The Court could not deal with the detention of the witnesses under Article 5 because of the Longa case, but it could have made the argument that the accumulation of periods of six years in the DRC and two years in the Netherlands was also an element of the flagrant denial of justice. This perhaps would have been a more accurate reflection of how multiple entities involved in the witnesses’ situation are responsible for the violation of Article 6.

The Amsterdam District Court may have protected the witnesses from an unfair trial in the DRC, but allowing them to remain in the Netherlands does not resolve the issue of their legal status. Now it is presumed, they will join the many others who find themselves on European territory protected by the ECHR, but excluded from refugee status. What remains to be seen is whether they will now be released from detention. The legal limbo continues on.

 

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[1] Case of Othman (Abu Qatada) v. the United Kingdom, Application no. 8139/09, Judgment, 17 January 2012, para. 258.

[2] Mohammed Ali Hassan Al-Moayad v. Germany, Application no. 35865/03, Decision on Admissibility, 20 February 2007, para. 101.

[3] Bède Djokaba Lambi Longa v. the Netherlands, Application no. 33917/12, Decision on Admissibility, 9 October 2012.

[4] As developed initially in the Bosphorus line of cases (Case of Bosphorus v. Ireland, Application no. 45036/98, Judgment, 30 June 2005).

The Legal Limbo Continues: Update on the Detained Witnesses at the ICC

Posted by:

Irving Emma

In October 2012 and January of this year the SHARES blog posted about the situation of Congolese witnesses detained at the International Criminal Court (ICC) in The Hague. Their detention continues, and while the resolution of their legal status is one step closer, it is also as illusive as ever, due to a decision of the Amsterdam District Court.

A detailed background to the situation can be found here, but can be briefly summarised as follows. Four individuals, detained in the Democratic Republic of the Congo (DRC) on charges relating to the on going armed conflict in the country, were transferred to the ICC detention unit in May 2011 in order to give evidence as witnesses. When the witnesses concluded their testimony, they applied for asylum in the Netherlands. Since that time they have remained detained and now find themselves in a legal limbo with neither the ICC nor the Netherlands willing to assume responsibility for their fate.

On 14 October 2013, the Amsterdam District Court ruled on an appeal against a decision to not grant refugee status to the witnesses. The Court held that the Secretary of State of the Department of Security and Justice did not err when he excluded the witnesses from the protection of the Refugee Convention. This was done on the basis on Article 1F, which states that persons suspected of involvement in crimes against humanity are not protected as refugees. The reason for their detention in the DRC prior to coming to the Netherlands was indeed the suspicion that they were implicated in the killing of UN peacekeepers (although they were never formally charged).

Despite not gaining the refugee status they sought, the Amsterdam District Court did provide some protection for the witnesses. In effect, it gave them the benefit of the complementary protection afforded by the European Convention on Human Rights (ECHR).

The Court found that if the witnesses were returned to the DRC, this would constitute a violation of Article 6 ECHR. They began by quoting the Othman case:

“It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country.”[1]

And go on to quote the following passage from Al-Moayad:

“A flagrant denial of a fair trial, and thereby a denial of justice, undoubtedly occurs where a person is detained because of suspicions that he has been planning or has committed a criminal offence without having any access to an independent and impartial tribunal to have the legality of his or her detention reviewed and, if the suspicions do not prove to be well-founded, to obtain release.”[2]

The District Court found that the detention of the witnesses in the DRC had been unlawful since 2007, because the basis for their detention was never renewed by the domestic courts. This, combined with the fact that they had never been formally charged with an offence, rendered the situation in the DRC a flagrant denial of justice. As such, their return to the DRC would be contrary to Article 6, and it is on this ground that the decision of the Secretary of State to return the witnesses was overturned.

It is interesting that the Court bases its decision on Article 6 of the ECHR. As reported previously on this blog, the European Court of Human Rights held in the Longa[3] case that the matter of the witnesses’ on going detention was outside the jurisdiction of the ECHR under Article 1, due to the fact that they are on ICC premises. The Amsterdam District Court, in the decision of 14 October, dealt with this by confining Longa’s applicability to claims brought under Article 5 ECHR. The rationale for this is grounded in the ‘equivalent protection’ doctrine[4] – as far as detention is concerned, the ICC is able to offer protection equivalent to that otherwise owed by the Netherlands under the ECHR. The same however cannot be said of the DRC; the ‘equivalent protection’ doctrine deals with international organisations, not states. It was found that the guarantees offered by the DRC as to the fair trial of the individuals were insufficient.

From the perspective of sharing responsibility for the human rights of the witnesses, the Amsterdam District Court appears to be saying that where the reach of the ICC ends, the role of the Netherlands must begin. In this way, there is no gap in the protection of the witnesses. The Netherlands is not free to claim that the witnesses are solely within the jurisdiction of the ICC, as the Longa case seemed to suggest. Rather, where the ICC involvement ends, so does the presumption of equivalent protection. At this point the obligations of the Netherlands are engaged under the ECHR.

It would have been interesting had the Amsterdam District Court addressed the possibility that time spent detained in the Netherlands may somehow have contributed to a violation of Article 6 ECHR, despite this not being raised by the parties. Instead the Court examines the issue entirely as a non-refoulement matter. There is no consideration of the prospect that the period of more than two years in the Netherlands was an element of the Article 6 violation. The quote from Al-Moayad used by the Court to define a flagrant denial of justice suggests that detention without access to review of that detention could be a violation of Article 6. The Court could not deal with the detention of the witnesses under Article 5 because of the Longa case, but it could have made the argument that the accumulation of periods of six years in the DRC and two years in the Netherlands was also an element of the flagrant denial of justice. This perhaps would have been a more accurate reflection of how multiple entities involved in the witnesses’ situation are responsible for the violation of Article 6.

The Amsterdam District Court may have protected the witnesses from an unfair trial in the DRC, but allowing them to remain in the Netherlands does not resolve the issue of their legal status. Now it is presumed, they will join the many others who find themselves on European territory protected by the ECHR, but excluded from refugee status. What remains to be seen is whether they will now be released from detention. The legal limbo continues on.

 

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[1] Case of Othman (Abu Qatada) v. the United Kingdom, Application no. 8139/09, Judgment, 17 January 2012, para. 258.

[2] Mohammed Ali Hassan Al-Moayad v. Germany, Application no. 35865/03, Decision on Admissibility, 20 February 2007, para. 101.

[3] Bède Djokaba Lambi Longa v. the Netherlands, Application no. 33917/12, Decision on Admissibility, 9 October 2012.

[4] As developed initially in the Bosphorus line of cases (Case of Bosphorus v. Ireland, Application no. 45036/98, Judgment, 30 June 2005).

Forgotten Weapons: The Syria Rebels’ Arms Pipeline

 Posted by: Lundahl Katarina

While all eyes are on chemical weapons in Syria and the permanent five are toasting over Resolution 2118, a clandestine international arms pipeline is quietly supplying the opposition forces with sophisticated weapons.

After The New York Times first reported in June on an unregistered arms pipeline delivering weapons to the rebels through a network of multiple state participants, news reports have continued to add more actors to the supply chain. In addition to a wide array of important US allies in the region, the involvement of the CIA itself and the Sudan has been alleged. Private smuggling and arms procurement networks further facilitate the movement, overlooked by sympathetic state authorities and sidelined by the focus on chemical weapons. An independent Syrian writer described the multitude of actors involved as the equivalent of supplying 100 million corner stores rather than a supermarket.

Meanwhile, aside from quiet voices of disapproval from Moscow, no one is making noise at the pipeline or claiming questions of responsibility are at play. The multitude of public and private players involved in the trafficking chain makes it difficult to designate responsibility within existing international law. Moreover, as the conflict in Syria has evolved from anti-government protests into a global proxy war with dirty hands on both sides, few actors are eager to cast the first stone and raise claims of state responsibility. In situations of civil war with a government of waning legitimacy, states do not consider the non-intervention principle as holy as could be assumed.

Reports (here and here), citing rebel and official sources supported by flight data, indicate that Turkey, Qatar and Saudi Arabia have provided weapons to the opposition and coordinated deliveries since 2012 in a covert alliance. Flight data cited in the reports shows that the airlift, which began on a small scale in early 2012, expanded into a steady flow in the fall of 2012, by then amounting to a ‘cataract of weaponry’, according to an anonymous former US official. The Wall Street Journal suggested last fall that these states formed a secret joint operations room in early 2012 to control the weapons flow to the rebels. The NYT report from June this year further described an elaborate distribution system created by the Syrian opposition with the support of Qatar and Turkey.

Besides regional US allies, also less likely sympathizers have been implicated in the chain. In August this year, the NYT reported that Sudan had sold weapons, including Chinese anti-tank missiles, to Qatar that then arranged for them to be delivered to the Syrian opposition forces through Turkey on Ukrainian-flagged aircraft. Besides planes from Qatar and Saudi Arabia, also Jordanian aircraft has been used for the transfers. The CIA has allegedly helped organize the transfers, albeit ‘mostly in a consultative role’ and facilitated arms purchases by the Arab governments, including a large procurement from Croatia. Some sources have even claimed that the CIA itself was engaged in arms smuggling from Libya to Syria during the 2012 Benghazi embassy attack.

These reports paint a picture of an extensive and well-coordinated arms trafficking chain, operated and facilitated by multiple state actors that continue to deny involvement as no one is asking questions. If the reports are accurate, the US and its key allies in the region are actively facilitating the illegal trafficking of arms to the rebels, motivated by their shared fear of seeing a victory for the Assad regime and, by extension, its Shiite ally Iran. The US is undoubtedly sympathetic to the goals of its Gulf allies in this regard and has little leverage over states like Qatar that are needed for pursuing other US interests in the region. Syria would not be the first instance where a sympathetic US has silently given its blessing to illegal activities of its Gulf allies. The UN Panel of Experts on Libya concluded in March this year that Qatar violated the UN arms embargo by supplying weapons to the Libyan opposition during the conflict in 2011, and the Obama administration secretly approved these deliveries.

Libyan weapons stockpiles are now considered to be the main source of the Syrian rebels’ weapons, which are then trafficked through Turkey or Northern Lebanon into Syria. The UN Panel of Experts on Libya concluded that the significant size of shipments from Libya towards Syria and the involved logistics suggest that Libyan authorities have been aware of the transfers, if not actively involved in them. Two years after the fall of the Gaddafi regime, most Libyan stockpiles are still under the control of non-State actors, while border control management and security remain significant challenges. Despite the embargo, Libyan stockpiles continue to fuel conflicts not only in Syria, but in the Sahel, Egypt and Gaza; for Syria, provided by the courtesy of the Qatar Emiri Air Force.

Russia has so far been the only state asking questions of the covert trafficking chain. In July this year, Russia attempted to have the weapons transfers by Qatar from Libya scrutinized by the UNSC Sanctions Committee established pursuant to Resolution 1970 (2011), which also placed an open-ended arms embargo on Libya. Although the embargo was amended by Resolution 2009 (2011) and Resolution 2095 (2013) to allow for limited exceptions, the embargo on exports is still in place making any state involvement in transfers from Libya a violation of UN sanctions. The Russian call was reportedly not supported in the Committee because some members of the Committee expressed doubts over the wisdom of probing the transfers solely on the basis of media reports.

The Committee however has the mandate to examine and take appropriate action on information regarding alleged violations of or non-compliance with the established sanctions. One can only speculate why the Committee has apparently chosen not to exercise its mandate on allegations regarding Qatar, Turkey and Libya, but its inaction adds yet another blind eye to the global reaction. In the absence of a UN probe, it remains up to individual states to bring responsibility claims and, so far, such claims have not been forthcoming. In the face of chemical weapons use by the Syrian government forces, more states are likely to become sympathetic with the rebels’ cause and thereby more inclined to continue to turn a blind eye to the illegal arms pipeline supplying the opposition.

Regardless of the origin of the weapons being trafficked through the pipeline (whether a state under embargo or not), and irrespective of what the rebels do with these weapons, supplying weapons to an opposition group seeking the overthrow of a sitting government is difficult, if not impossible, to justify under international law in these circumstances. The states participating in different roles in the illegal arms transfers are therefore responsible for their respective wrongful acts in the chain. Since most of these states are, in one way or another, supporting illegal acts, they have very little interest in creating or enforcing a more stringent rule of complicity.

The second element of state responsibility, attribution, is even more problematic. With an astonishing multitude of states and other actors facilitating the supply chain in various ways, it would be extremely difficult to establish sufficient causation for the purposes of responsibility. This poignantly illustrates the inability of international law lex lata to offer solutions to deal with situations involving a complex web of actors with highly differentiated contributions.

In the euphoria generated by the diplomatic victory of avoiding a military intervention in Syria and reaching a deal on Syria’s chemical weapons, topped of by the Nobel Peace Prize awarded to the OPWC last week, few seem to remember that conventional weapons, pumped into Syria by the clandestine pipeline, keep fueling a war that has already claimed the lives of more than 100,000 people.

Clarifying the content of climate change mitigation obligations

 Posted by: Nedeski Nataša

On 27 September 2013, Dutch NGO Urgenda announced it will institute legal proceedings against the Dutch state in order to address its allegedly failing climate change policy. This announcement was made on the same day that Working Group I of the International Panel on Climate Change (IPCC) published its fifth report on climate change, concluding amongst others that scientists are 95 per cent certain that humans are the ‘dominant cause’ of global warming since the 1950s. Urgenda has published the draft court summons on its website (Dutch only), which may still be subject to revision. The final court summons will be presented to the Dutch state on 23 October 2013. Claimants will ask the Court:

1. To declare that the Netherlands would be acting wrongfully by not ensuring that Dutch greenhouse gas emissions are reduced by 25-40 per cent in 2020 compared to 1990 levels;
2. To order the Netherlands to ensure that Dutch greenhouse gas emissions are reduced by 25-4 per cent in 2020 compared to 1990 levels;
3. To order the Netherlands to inform its population about the risks of climate change.

Claimants do not argue that a wrongful act has already occurred as a result of the Dutch climate change policy, and do not (yet) claim compensation for harm arising from global climate change. Rather, they focus on the impending wrongful act under both Dutch law and international law that they believe is bound to ensue if the Netherlands does not alter its climate change policy in the near future. By taking a closer look at the arguments made by claimants, it will be illustrated that these legal proceedings may be seen as a call for the clarification of the content of climate change mitigation obligations, as well as a call for the fulfilment of said obligations.

Climate change mitigation is the archetype of a collective (in)action problem, requiring an aggregate effort of multiple actors. But as is the case with any collective action problem, it is the individual failure of individual actors that in the end facilitates a collective failure. Interestingly, in this case claimants focus specifically on the individual role of the Netherlands and the individual obligations incumbent upon it. By doing so they aim to preclude the Netherlands from hiding behind a potential collective failure.[1]

The existence of an (individual) obligation to contribute to preventing dangerous climate change

The main argument put forward by the claimants seems to be that the Netherlands is under an obligation to contribute to preventing dangerous climate change; the focus is placed on dangerous climate change only and not on the occurrence of climate change as such. Because states have generally endorsed the scientific view that the increase in average global temperature should not exceed 2°C in 2050 in order to prevent dangerous anthropogenic interference with the climate system (e.g. in the Copenhagen Accord and the Cancun Agreements), claimants define dangerous climate change as an increase in global temperature that exceeds 2°C.

Claimants argue that the Dutch contribution to dangerous climate change will constitute a wrongful act/tort under Dutch law as soon as such dangerous climate change materializes. They note that Dutch case-law has recognized that the emission of gases and substances can constitute a wrongful act/tort when adverse consequences arise for others as a result thereof. Claimants compare the Dutch contribution to global greenhouse gas emissions to the contribution of the French company Mines de Potasse d’Alsace (MDPA) to the overall salinity level of the river Rhine, which was the subject of the ‘Kalimijnen’ case before the Dutch Supreme Court (NJ 1989, 743). In this case, the Supreme Court considered that the MDPA was acting wrongfully towards Dutch cultivators that utilized the Rhine for the watering of their crops, despite the fact that the overall salinity level of the Rhine did not result solely from the company’s dumping of salts into the river but had additional (both natural and industrial) causes.[2] The question whether damage would have occurred also in the absence of dumping by the MDPA was deemed to be irrelevant, and the amount of compensation that it was ordered to pay was proportionate to its share in the total salinity of the river. By applying these considerations to the current case, claimants argue that the Netherlands will eventually be proportionately responsible for the harm arising from dangerous climate change and that it is therefore obliged to preventatively reduce its share in overall global emissions.

While claimants rely primarily on Dutch law, they refer to international law in order to further substantiate their claims. They refer to article 2 of the UN Framework Convention on Climate Change (UNFCC), which states that the ultimate objective of the UNFCC is to achieve ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’ and, in addition, argue that it follows from the no-harm rule in international law that states are obliged to take the necessary measures to prevent that emissions from their territory cause serious harm outside its territory (or in other words, contribute to dangerous climate change).[3]

Finally, claimants discuss the adverse effects of dangerous climate change on the enjoyment of human rights such as the right to life and the right to health, and argue that the Netherlands has the positive obligation to take the necessary measures to prevent violations of human rights law, by not contributing to dangerous climate change.[4]

In essence, all of these points come down to the argument that it follows from various obligations to prevent harm under both Dutch law and international law that the Netherlands is obliged to contribute to the prevention of serious harm arising from dangerous climate change.

The content of the individual obligation to contribute to preventing dangerous climate change

Generally, obligations to prevent harm from arising are considered to be obligations of conduct (or ‘due diligence obligations’) in the sense that it is not necessarily required for the fulfilment of such an obligation that the harm is in fact averted. Rather, it is required that all necessary measures within the duty-bearer’s power are taken to prevent that harm from occurring. Surely the Netherlands is not in the position to ensure that dangerous climate change will not occur by its individual conduct only. But then what is it that the Netherlands must do exactly in order to fulfil its individual obligation? Are current Dutch efforts at greenhouse gas emission reduction sufficient, or is the Netherlands legally obliged to do more? In other words, what should the Dutch share be in the reduction of global emissions?

The Netherlands has committed itself to reduce its emissions with 16 per cent by 2020 compared to levels in 1990. This target is derived from the European Union’s pledge to reduce its overall emissions with 20 per cent by 2020. However, according to the IPCC a reduction of 25-40 per cent by 2020 would be required of all developed states (classified as such by Annex I to the UNFCC) in order to have a 50 per cent chance at limiting global temperature rise to 2°C in 2050, and thus to have a real chance at preventing dangerous climate change. These calculations take into account the principle of common but differentiated responsibilities (CBDR), placing a heavier burden upon the shoulders of developed states. The claimants subscribe to the IPCC’s findings and use them to argue that the obligation to contribute to preventing dangerous climate change in both Dutch law and international law effectively entails that the Netherlands, as a developed state, is bound to ensure that its emissions are reduced with 25-40 per cent by 2020.[5] Whereas obligations to prevent harm are generally considered to be obligations of conduct, this specific obligation might better be qualified as an obligation of result. Even though the prevention of climate change as such is not required for the fulfilment of this obligation, it does require the achievement of a very clear result: an emission reduction of 25-40 per cent by 2020.

It is generally accepted that there exists an obligation to prevent serious environmental (transboundary) harm in international law and that climate change can indeed cause such harm. As collective action is required in order to have a real chance at preventing dangerous climate change, it seems that individual states can do no more than contribute to this prevention. Even if we accept that these individual obligations constitute obligations of result the key question remains: which state is bound to achieve what (individual) result? While some indeed argue that an answer to this question must be informed by the CBDR principle, others have expressed doubts as to the extent in which this principle should guide the distribution of climate change mitigation obligations (the latter doubts may be supported by a recent report published in Climate Change, which reveals that developed states may not bear the overwhelming responsibility for climate change). In this regard, one might agree with the claimants at the very least on the point that uncertainties with regard to the content of individual obligations may eventually allow states to hide behind a collective failure.

It is for this reason that the question key to Palau’s campaign to secure an advisory opinion from the International Court of Justice (ICJ) on climate change focuses on clarifying the content of individual climate change mitigation obligations:

What are the obligations under international law of a State for ensuring that activities under its jurisdiction or control that emit greenhouse gases do not cause, or substantially contribute to, serious damage to another State or States?

In the face of the imminent risks posed by climate change, an answer to this question by the ICJ would be a more than welcome step. Unfortunately, two years after Palau announced its plans to seek an advisory opinion, the issue has not been put to the vote before the General Assembly and it seems that Palau’s campaign has not (yet) garnered sufficient support amongst states. Interestingly, it now seems that domestic courts might have a role to play in contributing to the clarification of the content of climate change mitigation obligations.

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[1] See para. 119 and para. 162 of the draft court summons.

[2] See paras. 165-171.

[3] See paras. 203-214.

[4] See paras. 215-236.

[5] See paras. 130-141.

Sharing Risks, Sharing Liability: Environmental and Health Risks of the Destruction of Syrian Chemical Weapons

 Posted by: Nollkaemper André

On 11 October 2013, the UN Security Council authorised the establishment of a Joint Mission of the Organisation for the Prohibition of Chemical Weapons (OPCW) and the United Nations (UN) to oversee the destruction of Syria’s chemical weapons. The Council endorsed the proposal formulated by Ban Ki-moon in a letter to the Council of 7 October (S/2013/591), pursuant to a request by the Security Council in Resolution 2118 (2013).

While all attention now focusses on the completion of the Joint Mission’s goal (the elimination of Syrian chemical weapons), it is not too early to plan for contingencies. The destruction of the chemical weapons will entail significant risks for the environment and human health. These risks will arise in particular in the third phase of the Mission. As outlined in Ban Ki-moon’s letter of 7 October, from 1 November 2013 to 30 June 2014, the Joint Mission is envisaged to support, monitor and verify the destruction of a complex chemical weapons programme involving multiple sites spread over Syria which by then is likely to be still engulfed in violent conflict. This involves approximately 1,000 metric tons of chemical weapons, agents and precursors that are dangerous to handle, transport and to destroy.

Even in normal situations, destruction of chemical weapons is a high-risk undertaking. The OPCW is mindful of environmental and health risks of such destruction, see for instance here. In Syria the risks surely are higher than normal. The time period is shorter than what otherwise would be allowed under the Convention, and the context will be incomparably less secure than any other instance in which chemical weapons have been destroyed. As Ban Ki-moon wrote in his letter of 7 October, ‘During phase III, the OPCW/United Nations Joint Mission will seek to conduct an operation the likes of which, quite simply, has never been tried before.’ He recognised that ‘In the extant circumstances, the pressures associated with the destruction timelines will not only enhance operational and security risks, but also potential public health and environmental risks.’

In this situation, it has to be considered what will be the legal consequences when things do not go according to plan, and harm to human health or the environment results. In particular, who would be liable (a term more appropriate here than responsibility, in view of the fact that major harm could be caused even if no wrongful act may be committed under international law) for such harm?

The Chemical Weapons Convention does not include a provision on liability for harm resulting from the destruction of chemical weapons. But it seems clear that if a state destroys its chemicals weapons and harm to public health or the environment occurs, it is exclusively that state (and not, for instance, the OPCW) that would be confronted with any legal consequences of such harm. Depending on the circumstances, the state may then be responsible towards other state parties (for instance if it failed to set or enforce proper standards as required by the Convention), or towards injured individuals (possibly under human rights law, if no proper precautions were taken). It also may be liable for environmental harm – though it is not obvious that such liability will arise under international law, unless transboundary effects occur.

In the case of Syria, a different outcome seems justified. While much will depend on the circumstances in which harm may occur, it is a compelling proposition that it should not necessarily be only Syria that has to face the legal consequences of such harm.

This proposition can be grounded on the fact that the OPCW Executive Council and the Security Council have pushed Syria (respectively in a decision of the OPCW Executive Council of 27 September, and in Security Council Resolution 2118 which endorses this decision) to engage in the destruction of chemical weapons in a time-frame that is shorter than what is prescribed by the Convention, and that would have to occur in a volatile situation in which no other state would ever think of engaging in such high risk activities.

In the published documents there is nothing to suggest that the OPCW and/or the UN would assume (co-)liability if things would go wrong. The proposal by the UN Secretary-General that is now endorsed by the Security Council maintains that ‘all destruction of chemical weapons facilities, stocks and associated material is the responsibility of the Government of the Syrian Arab Republic. Neither OPCW nor the United Nations is mandated to conduct actual destruction activities’. The suggestion appears to be that, as in normal times of peace, only the state actually carrying out the destruction will be liable if things go wrong.

In view of the role of the OPCW Executive Council and the UN Security Council in the process that Syria is now embarking on, as a general proposition this outcome seems unreasonable. Pushing a state into actions that in all other situations would be considered unsuitable, even if the aim is a noble one, should come with some responsibility if things go wrong.

Such a potential (co-)liability does not obviously flow from existing rules of international law. In the case of environmental harm it may be doubtful whether an obligation binding on the OPCW or the UN can be identified that would allow for a construction of a wrongful act. Moreover, the conditions of the principles on responsibility of international organisations adopted by the International Law Commission, in particular those pertaining to aid or assistance, direction and control, coercion, and circumvention (Articles 14-17) appear to be set too high to be relevant here. In any case they are unhelpful in situations where the problem appears more one of engaging in high-risk activities than of wilful commission of wrongs.

In fact, the proper ground of liability for environmental harm or harm to human health may not so much lie in the law of international responsibility for wrongful acts, but rather in the notion of liability for harm arising out of hazardous activities. The principles that the ILC drafted on this topic only apply to states, and surely there is insufficient practice to warrant the development of similar rules for international organisations. But in particular situations, the principle that an actor that creates a risk of harm by engaging in a hazardous activity should bear (part of) the loss is a sound starting point. Other than with states, for international organisations there is no reason to limit such a principle to transboundary situations. Nor is there any ground to shift liability to private operators. Liability is to be taken by those who contribute significantly to the risk – in this case a combination of Syria, the UN and the OPCW.

While thus neither the principles on responsibility for wrongdoing nor those on liability for creation of risks would easily support a (co)liability of international organisations, the question is whether the UN and the OPCW should profit from gaps in international law, so as to enable them to leaving it to Syria alone to face the consequences of risks that the UN and the OPCW, jointly with Syria, have created. A lesson from the fate of recent liability claims against the UN, for instance in the case of Haiti or Srebrenica, is that it is not necessarily a recommendable strategy for the UN (and the same would hold for the OPCW) to exploit all legal avenues so as to secure that others have to deal with the legal consequences of events in which the UN had a decisive role. While we have to come to accept that for states it is normal to seek gaps in the law to prevent claims, from the UN something more is to be expected.

Three additional points should be noted. First, the question can be asked whether there also may be a potential co-liability of the UN and the OPCW as a result of the acts of the Joint Mission itself. This appears unlikely. While the Joint Mission will play a critical role in guiding and overseeing the destruction, it is not easy to envisage a situation where environmental harm or harm to human health results from the acts of the Joint Mission itself. Theoretically interesting questions about the relationship between the jointness of the mission, and the shared nature of liability between the OPCW and the UN for conduct or omissions of the mission, are unlikely to become practically relevant (though it is not excluded that they arise).

Second, it may be said that the OPCW Council (and the Security Council afterwards) only have rubber stamped what the United States and the Russian Federation had agreed beforehand, and that any liability for high risks should be borne (also) by those states, rather than by the OPCW and the UN alone. As a matter of international law that argument is not an easy one, however. It certainly is not supported by the ILC Articles on the responsibility of international organisations. Again, the standards of the relevant Articles here (Articles 58-61) are high and not really applicable to what in essence is a situation of the creation of risks. It also can be said that the role of the United States and Russia was overtaken by later collective decisions in the Executive Council and the Security Council.

Third, it may be argued that any liability for the UN and the OPCW would not be appropriate should be rejected since it was Syria itself that has created the problem in the first place. The argument that for this reason is would be only for Syria to face the consequences is not compelling, however. The mere possession of chemical weapons by Syria was not a wrong. Its accession to the Convention would normally have given Syria a more flexible time period for destruction, were it not for the intervention by the OPCW Executive Council and the Security Council. The illegality of the use of the gas does not affect any questions of liability for destruction of the weapons.

In conclusion, then, it would seem a sound position that in the event that human health or environmental harm would occur, the UN and the OPCW should not leave all questions of liability to Syria. Given that the rules of international law as laid down in the ILC Articles on the responsibility of international organisations are unlikely to be of much help in construing a shared responsibility in the event that harm would occur, and in view of the absence of established principle on liability of international organisations, the sensible thing to do it to make proper arrangements in advance. One option may be to include this in the tripartite status-of-mission agreement between the UN, the OPCW and the Government of the Syrian Arab Republic, but there will be other options. It is not too late to make arrangements for a shared responsibility in the case of harm that reflects the unique shared nature of this operation.