Shared Responsibility and the Federal State

 Posted by: Gleider Hernández

Federal States in international law

To the international lawyer at least, the idea of a federal State, which distributes its sovereign competences between different internal orders of government, is generally irrelevant: how a political community structures its internal relations has nothing to do with how its sovereignty as a State is exercised externally.

The classical international legal fiction is that a State is a ‘black box’: whatever internal arrangements may have been devised, the federal State alone is responsible for international relations, and alone is a subject of international law. The ‘black box’ metaphor is rooted in the very idea of State sovereignty, as the Permanent Court stated in its very first judgment, in the Case of the S.S. Wimbledon: the capacity ‘of entering into international relations is an attribute of sovereignty’.[1] But it is not merely a metaphor or fiction: the centralisation of the capacity to act externally has been constitutive of a great many theories about the nature of international law as a system, not least Article 27 of the Vienna Convention on the Law of Treaties, which precludes that a State may evade its international obligations by invoking its internal law.

Despite this, the research question arose: to what extent are the acts of a federated entity cognised at international law? The question is relevant from both municipal and international perspectives. There are indeed several federal States whose component entities act on the international plane. Certain federal constitutions, inter alia, those of Germany, Switzerland, Austria and Belgium, as well as the special arrangements for Macau and Hong Kong, allow for the autonomous international action of their component entities. To these one can add the international agreements entered into by the provinces of Canada and the states composing the United States and Australia; although these are not constitutionally recognised in those federal States, the federal order often enables or co-signs agreements entered into by its federated entities. There are hundreds of agreements (accords, ententes) between federated entities and third States, or between each other.

Relatively few third states are willing to recognise and respond to such arrangements autonomously, without the oversight or guarantorship of the federal State. With few exceptions, notably that of France in its relations with the Canadian province of Quebec,[2] third States variously demand accords-cadre (‘framework agreements’) through which the federal order recognises or guarantees the agreement between its federated entity and the third State. This consistent practice would seem to confirm that, on the international plane at least, the capacity of federated entities to contract international obligations remains a question requiring the intervention of the federal State, as the plenary subject of that legal order.

But what of responsibility? The classical legal positivist view would recall that, formally at least, federated entities are nothing more than ‘organs’ of federal states in the sense of Article 4, paragraph 1, of the ILC Articles on State Responsibility, to the effect that if they breach international law, the federal State alone is responsible. It is true that practice has been sparing with respect to the recognition by third States of the capacity of the sub-State entities of another State to enter into international agreements with it. But in cases where internal constitutional arrangements have received international recognition, can a federated entity be held internationally responsible for its acts which are in breach of that obligation so undertaken?

Concurrent or shared responsibility

The default rule in international law is that the federal State remains responsible for the acts of its federated entities, and its responsibility cannot be excluded, whatever the domestic constitutional arrangements might provide.[3] The interesting question is whether that default rule excludes the possibility of the international responsibility of federated entities; and research into practice suggests that the question is less clear-cut than it would seem. Although relatively few, certain States have readily entered into international agreements with federated entities, suggesting that they are at least prepared to assume the ‘risk’ of dealing with a non-State organ or entity. In such circumstances, where there is ex ante agreement from the third State, the better view is to see international law as neutral with respect to the domestic constitutional arrangements of a federal State. There is no rule of international law which precludes a third state from accepting the separate international legal personality of a sub-state entity on a given subject-matter, entering into relations with that sub-state entity, and claiming against that sub-state entity in the event of a breach.

Presuming, for a moment, that the third or foreign State has recognised the internal arrangements of a federal State, what forms of responsibility could be invoked by that third State in case of a violation of an international obligation? One way to approach responsibility could be to share it between the two layers of government in a federal State. An injured party could file proceedings against either level of government, and these could later determine between them how such responsibility should be apportioned. Although there is little practice under the shared responsibility paradigm, in Canada a number of ‘indemnity agreements’ ensure that, although the federal government retains primary responsibility to indemnify injured third parties for breaches of international law by its provinces under the accords-cadre, it may seek reparation against a province for its contribution to the breach. In Switzerland, the Confederation government negotiates agreements on behalf of its cantons, and accepts external responsibility for any breach, but retains internally a right to seek reparation from its cantons. Similarly, the Belgian federal government retains a ‘power of substitution’, where it may substitute with one of its communities or regions in order to comply with a ruling against one of these by an international or supranational court or tribunal, and then retains the power to seek reparation from them. In such situations, a third State does not regard itself at risk of being denied reparation, and the federal State has recourse against its federated entities. This limited practice suggests that a model of shared responsibility, although difficult to implement, is far from impossible.

Conclusion

The modest theories on concurrent or shared responsibility put forward here depend on a reconceptualisation of federated entities not purely as organs or agents of the federal state, but rather as possessing limited international personality by virtue of their sovereign competence over various attributes of states, perhaps viewed in an overlapping or interlocked relationship with the federal government. It is the division or apportioning of sovereignty that is of wider interest in matters of shared responsibility in federal states. Such arrangements open exciting potential possibilities with respect to the role that federated entities can play in international relations, a dynamic role that can be accommodated within international law with some creativity.

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[1] Case of the S.S. Wimbledon (United Kingdom v. Japan), PCIJ, Ser. A., No. 1 (1923), 25.

[2] Even in that situation, which is marked by the constant debate over Quebec secession, the federal government of Canada insisted on exchanges of letters with France and a subsequent accord-cadre to validate Quebec-France agreements and assume international responsibility for any breach.

[3] See, e.g., Article 32 of the ILC Articles on State Responsibility, and LaGrand (Germany v. United States of America), Provisional Measures, ICJ Reports 1999, p. 9, at p. 16, para. 28.

A shared obligation to negotiate (and achieve?) nuclear disarmament

 Posted by: Nedeski Nataša

Every year since the International Court of Justice’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the UN General Assembly has adopted by a large majority a follow-up resolution. Each resolution reiterates that ‘the continuing existence of nuclear weapons poses a threat to humanity and all life on Earth’, and underlines ‘the unanimous conclusion of the International Court of Justice that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control’. The ICJ derived this obligation from Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which provides that

[e]ach of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

On 24 April 2014 the Republic of the Marshall Islands (RMI) instituted legal proceedings before the ICJ against nine nuclear weapons possessing states: France, India, Pakistan, the United Kingdom, the United States, Israel, China, Russia and North Korea. The Application states that their failure to pursue and conclude negotiations leading to complete nuclear disarmament amounts to a continuing breach of the obligations enshrined in Article VI NPT (to which five of these states are parties), as well as of identical obligations that exist separately under customary international law. Only Pakistan, the UK and India have accepted the compulsory jurisdiction of the ICJ (albeit with several reservations); the remaining six states have been requested to accept the jurisdiction of the Court.

Assuming that the potential barriers to jurisdiction and admissibility would be overcome, the initiation of these proceedings calls for some reflection on the substantive content of the shared obligation(s) arising from Article VI NPT (and, if they indeed exist, identical obligations under customary international law). As the total elimination of nuclear weapons cannot be achieved by any state in isolation, Article VI NPT requires all states parties to take part in overall disarmament efforts. But while it is clear that nuclear disarmament is a goal that can only be achieved through the combined action of all states, it remains uncertain what action is legally required of them. There exist a variety of conflicting views as to ‘what state behaviour is required to meet the nuclear disarmament obligation’.[1] Arguably, this lack of clarity has contributed to the overall failure of nuclear weapon states to take concrete steps towards the common goal of nuclear disarmament.

It has been argued that Article VI NPT ‘merely’ gives rise to an obligation to negotiate in good faith – a pactum de negotiando – which obliges individual duty-bearers to make a genuine effort towards coming to an agreement, but ‘does not imply an obligation to reach an agreement’.[2] However, in its Nuclear Weapons Advisory Opinion the ICJ has held that the legal import of Article VI NPT ‘goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith’[3]. It subsequently qualified Article VI NPT as giving rise to ‘a two-fold obligation to pursue and conclude negotiations’.[4] These passages have been used to support the argument that Article VI NPT gives rise to a pactum de contrahendo – an obligation of states parties to conclude an international agreement on complete nuclear disarmament.

The difference between these two interpretations of Article VI NPT is far from negligible. An obligation to negotiate in good faith is generally considered to be an obligation of conduct, which entails that each duty-bearer can independently fulfil or breach its obligation by conducting or failing to conduct negotiations in good faith. It would be perfectly possible for one duty-bearer to fulfil its obligation by negotiating in good faith whereas another breaches its obligation by failing to do so (though how a state may demonstrate good faith will of course be up for discussion). In the end, whether or not negotiations bring about a certain result does not have a necessary bearing on the fulfilment (or breach) of the obligation to negotiate.

This seems to be different when it comes to the obligation to conclude negotiations and achieve the result of ‘nuclear disarmament in all its aspects’. If Article VI NPT indeed requires the achievement of such a result, the duty-bearers of this obligation will be highly dependent upon one another when it comes to complying with this requirement. The desired result of complete nuclear disarmament, whether or not through the conclusion of a multilateral treaty, cannot be brought about by a duty-bearer on its own; regardless of the amount of effort it puts in or the extent of good faith it displays (for example by unilaterally declaring that it will dispose of its entire nuclear arsenal). This would entail that the obligation cannot be fulfilled by any duty-bearer as long as the result of total nuclear disarmament has not been achieved. At the same time, it is not clear when this obligation would be breached, as no definitive timeframe has been set out within which negotiations should be concluded and/or complete nuclear disarmament should be achieved. Should a breach nevertheless be established, the question arises whether this would automatically result in shared responsibility for all duty-bearers.

The proceedings instituted by the RMI may provide the ICJ with an opportunity to clarify the substantive content of Article VI NPT. At first sight, the ICJ’s pronouncements in its Nuclear Weapons Advisory Opinion seem to support the argument that Article VI NPT gives rise to an obligation that goes beyond a ‘mere’ obligation to negotiate. But how far does that obligation go? Does it really require that the result of complete nuclear disarmament is achieved before duty-bearers can fulfil the obligation, regardless of the result achieved by each duty-bearer individually? Should nuclear disarmament necessarily be achieved through the conclusion of a multilateral treaty? And would a breach of the obligation to achieve nuclear disarmament entail that both nuclear weapon states and non-nuclear weapon states would share the resulting responsibility?

In the midst of these uncertainties, what does seem evident is that progress towards nuclear disarmament is occurring at a disturbingly slow pace. A clarification of what it is that states must do in order to comply with their legal obligations will make it more difficult to justify their inaction; hopefully bringing us one step closer to the collective goal of nuclear disarmament.

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[1] Legal Memorandum by the International Association of Lawyers Against Nuclear Arms and the International Human Rights Clinic Human Rights Program, Harvard Law School, Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons: Request for an Advisory Opinion from the International Court of Justice (International Human Rights Clinic Human Rights Program, Harvard Law School, Cambridge, 2009) at 4. Available at http://www.un.org/disarmament/education/docs/goodfaithnegs.pdf.

[2] Railway Traffic Between Lithuania and Poland, Advisory Opinion, 1931, P.C.I.J. Series A/B No. 42, p. 108, at p. 116.

[3] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at para. 99 (emphasis added).

[4] Ibid., at para. 100 (emphasis added).

Responsibility of the UK for detentions in Afghanistan: questions of attribution of conduct

 Posted by: Bérénice Boutin

In a decision of 2 May 2014, the British High Court of Justice held that the United Kingdom (UK) was responsible for the continued detention of an individual in Afghanistan, in violation of human rights law. The decision has already been commented on, notably here, here and here, focusing on the affirmation by the Court that the UK’s international human rights obligations applied to the non-international armed conflict in Afghanistan. This post will briefly address another important aspect of the decision, that of attribution of conduct.

The case was brought by Serdar Mohammed, an Afghan national who had been captured by British forces part of the NATO-led International Security Assistance Force (ISAF) in April 2010 on the suspicion of being a member of the Taliban. He remained detained without charges until July 2010, when he was transferred to Afghan authorities. He claimed compensation from the UK for a breach of his right to liberty under Article 5 ECHR.

Apart from finding that the detention was in breach of applicable human rights obligations, the Court engaged in a relatively extensive discussion of whether the disputed conduct was to be attributed to the UK (paras 158–187, pp 47–55), thereby adding a new stone to the debate on allocation of responsibility in international military operations.

The Court answered the question of attribution in two steps: first, it determined to whom the conduct of ISAF should be attributed as a matter of principle, and then asked whether the detention itself should be considered an act of ISAF or whether it actually was an act of the UK. A number of scholars have considered such a two steps method appropriate to implement the test of effective control: they have suggested to first identify which entity is presumably responsible in view of command arrangements before enquiring whether a specific conduct was actually controlled by the troop-contributing State.[1]

The Court wrongly concluded that the conduct of ISAF was in general attributable to the UN because it possessed ‘ultimate authority and control’, but correctly held that the specific detention of Serdar Mohammed was to be attributed to the UK. These two parts of the reasoning of the Court on attribution are explained below.

Grounding once again its argument in the Behrami and Saramati cases, the UK had contended that since British forces in Afghanistan were operating as part of the ISAF – a NATO force that was authorised by the UN – the conduct should be attributed to the UN. If courts in Al-Jedda could distinguish the situation in Iraq from the one in Kosovo on the facts, the Court was here bound to recognise the close similarity of the case at hand with the detention of Mr Saramati by the NATO-led KFOR:

177. […] It seems to me that the chain of delegation of command for ISAF is essentially similar to the chain of delegation and command for KFOR, as described in the judgment of the European Court in the Behrami and Saramati cases.

The British Court did not dismiss Behrami and therefore held that, prima facie, the conduct of ISAF was attributable to the UN:

178. In these circumstances, although I do not find the question easy, I consider that the UN Security Council has “effective control” (and “ultimate authority and control”) over ISAF in the sense required to enable conduct of ISAF to be attributed to the UN. Thus, if the detention of [Serdar Mohammed] had been authorised by [ISAF] […], I would expect the European Court to hold that the detention was not attributable to the respondent state, applying the same analysis as it did in the Behrami and Saramati cases.

As often denounced with regard to the Behrami decision, holding the UN responsible for the conduct of forces over which it has no control makes little sense and is not in line with the established test of effective control. Under this test, the conduct of ISAF should rather have been prima facie attributed to NATO which was vested with operational command over the force. The UN only authorised the deployment of ISAF and did not have operational control over its activities in the field. The conduct of ISAF should therefore not have been considered as a conduct of the UN.

While the argument on attribution of ISAF conduct to the UN is weak, the Court nonetheless reached a reasonable conclusion in the second step of its reasoning. It analysed the distribution of authority between NATO, ISAF and the UK, and demonstrated that the detention of Serdar Mohammed was exclusively under the authority of the UK.

Indeed, the Court showed that, as far as detention operations were concerned, the UK was acting independently from ISAF, according to its own policies and through its own channels. Under ISAF’s rules, individuals could be detained for up to 96 hours after which they had to be transferred to Afghan authorities. Considering that ‘detaining individuals beyond 96 hours can yield vital intelligence’, the UK decided to adopt a different policy allowing longer detentions by its troops. As a result, detention operations by British troops in Afghanistan have been conducted under the direct authority of the British Ministry of Defence:

180. […] the chain of command for authorising detention set out in the MOD Standard Operating Instruction J3-9 shows that the detention authority is the Commander of Joint Force Support (Afghanistan) (“Comd JFS p(A)”), who reports directly to the UK Permanent Joint Headquarters (“PJHQ”), which in turn reports to the MOD. By contrast, the chart shows that the relation between the UK detention authority and the ISAF chain of command is one of liaison and coordination only.

Considering that the disputed ‘detention was authorised and reviewed exclusively by UK officials and Ministers’, the Court held that the conduct was attributed to the UK which actually exercised authority over this part of the operation, and not to the UN and NATO.

In effect, the Court demonstrated that the specific disputed conduct was under the effective control of the UK which concretely exercised authority over its troops in detentions matter. The conclusion of the case is therefore in line with the principle enshrined in Article 7 ARIO.

Like in Nuhanovic, attribution of conduct of international forces to the contributing State is justified by a clear link between specific government’s decisions over operational matters and the disputed conduct. In Nuhanovic, the Dutch government was in close contact with the contingent commander and had directly instructed to evacuate the compound. In the case at hand, the direct control of the UK government over detentions justified to attribute the conduct to the State.

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1. See eg: A Sari, ‘UN Peacekeeping Operations and Article 7 ARIO: The Missing Link’ (2012) 9(1) International Organizations Law Review 7; M Zwanenburg, Accountability of Peace Support Operations (Martinus Nijhoff, Leiden, Boston, 2005) at 100.