Protecting the Arctic area – a responsibility of many?

 Posted by:Schechinger Jessica

On 16 December 2013, the fourth SHARES Debate entitled Protecting the Arctic area – a responsibility of the Netherlands? was held in Amsterdam. The panel consisted of three speakers: Louwrens Hacquebord, René Lefeber, and Daniel Simons. André Nollkaemper acted as moderator. This blog post highlights the main parts of the debate.

Background – changes and threats

Through the melting of the ice of the Arctic, as a consequence of global warming, new economic opportunities for states and businesses arise. Areas that until recently were covered in ice are now opening up, creating, for example, permanent navigational routes between Asia and Europe, and enabling the exploitation of oil and gas resources that had been previously located in inaccessible areas. The Netherlands, as well as companies incorporated in the Netherlands, are among the many actors that want to capitalise on these new opportunities. The increase of economic activities can pose significant risks to the fragile ecosystem of the Arctic. This raises a fundamental question: who is responsible for the management, use and protection of the Arctic area? In this complex situation, question arise over the role and responsibility of the Netherlands and other actors, including Dutch companies such as Van Oord, Boskalis and Shell.[1] The Netherlands’ policy framework concerning the polar regions (Beleidskader Nederland en de Poolgebieden 2011-2015) addresses the importance of the Arctic area for the Dutch industry, and describes the Arctic administrative system as a geographic and legal patchwork.

The role and rights of the Arctic states

A geological survey carried out by the United States revealed that there are (potential) substantial oil and gas reserves in the Artic area,[2] which has led some of the Arctic states to claim parts of the sea and seabed (for more information and a map on Maritime jurisdiction and boundaries in the Arctic region of the International Boundaries Research Unit of Durham University see here). As a result of increasing oil prices, multinationals have an increased interest in the Arctic area. The five states bordering the Arctic Ocean (the United States of America, Canada, Russian Federation, Norway and Denmark (including Greenland and the Faroe Islands) can exercise authority under the 1982 United Nations Convention on the Law of the Sea (LOSC) over most of the oil and gas resources. They therefore play an important role and are primarily responsible for managing and protecting the Arctic environment.

In 2008, the five states bordering the Arctic Ocean adopted the Ilulissat Declaration, claiming a stewardship role in protecting the Arctic Ocean.[3]

The most important international governmental forum in the Arctic is the Arctic Council, which is composed of the five aforementioned states and Sweden, Iceland and Finland (the latter three being Arctic states that do not border the Arctic Ocean). These Arctic Council member states cooperate and coordinate Arctic issues in this Council. An increasing number of ‘observer’ states participate in this forum, including the Netherlands.

The main applicable legal instrument for the Arctic area is the LOSC. The LOSC provides in Article 56(1)(a) that a coastal state has, in the exclusive economic zone (EEZ) ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds’.[4] However, these states also have obligations. Importantly, according to Article 192 LOSC, each state has the (general) obligation ‘to protect and preserve the marine environment’. In order to achieve this, Article 194(2) LOSC provides that states ‘shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment’. Further, ‘States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source’ (Article 194(1) LOSC). In the EEZ, coastal states have functional jurisdiction over the protection and preservation of the marine environment (Article 56(1)(b)(iii)). Article 56(2) LOSC moreover provides for the notion of due regard according to which coastal states need to consider the rights and duties of other states while exercising their rights and performing their duties under the LOSC.

Both Hacquebord and Simons emphasised that exploratory drillings and oil production are more and more conducted ‘offshore’ (away from the coast). These activities increasingly take place in the direction of the geographic north pole, leading to risk and disturbance for flora and fauna. A potential disaster would be more difficult to fight and could have severe environmental consequences for this area. Be that as it may, currently, all Arctic states have planned offshore exploratory drillings in the area. Gazprom is most advanced in offshore oil production.

The role of third states and the Netherlands

Besides the Arctic states, many other states have become involved in the discussion on issues related to the Arctic, including China, Japan, South-Korea and the Netherlands. These third states see economically viable opportunities, having for example an interest in permanent navigational routes between Asia and Europe. It needs to be emphasised that according to Article 192 LOSC, each state has the (general) obligation ‘to protect and preserve the marine environment.’ Therefore each of these states has a (subsidiary) responsibility for the protection and preservation of this unique and fragile area.

The Netherlands, as a third state, has to strike a balance between the economic interests and gains involved and protecting the ecosystem of the Arctic. According to Hacquebord, because the Netherlands has a long tradition of being actively involved in scientific research in the area (starting 1882-1883 and going back to the time of Willem Barentsz at the end of the 16th century), it also has a responsibility for this area. The Netherlands currently also conducts research there. Because the Netherlands is connected via natural systems such as climate and migratory birds with the Arctic, sea level rise due to melting of the ice that occurs in that area also has consequences for the situation in the Netherlands as a low laying country. Although the ‘observer’ status of the Netherlands in the Arctic Council must not be overestimated, it can make a difference in the working groups of the Council (where policy on e.g. protection of the Arctic marine environment and sustainable development is being determined), through the Dutch researchers that are members of these working groups. For the PowerPoint presentation of Professor Hacquebord see here.

Lefeber, who recently represented the Netherlands at the International Tribunal for the Law of the Sea in Hamburg in the Arctic Sunrise case between the Netherlands and Russia, emphasised in his oral pleadings in this case the historical link of the Netherlands with the Arctic area (calling the account of Willem Barentsz and the other sailors part of the Dutch national cultural heritage). He mentioned that the Netherlands feels responsible to a limited extent for the Arctic area, since it recognises and respects the sovereignty of the Arctic states over the territory. The Arctic states have prescriptive jurisdiction and enforcement jurisdiction, also with regard to the adjacent maritime areas. However, the exercise of jurisdiction has to be in conformity with international law.

According to Simons, the role and influence of the Netherlands should not be overestimated, but it can however make a positive contribution to minimise environmental risks. As observer, the Netherlands can plead for strict and binding rules and thereby make investing in the oil/gas industry in this area costly and less attractive. Shell for example has conducted some exploratory drillings in the Arctic area, and Gazprom and Shell have recently established a joint venture. According to Simons, the Netherlands should exercise more restraint and look more critical to the long term interests it has as a low laying country.

The European Union

During the discussion with the audience the role of the European Union (EU) was discussed. The speakers noted that the EU is trying to become involved, a request for observer status is under continued consideration. The EU sees economic opportunities and invests for example in the Arctic programmes of the European Polar Board. However, currently there is not sufficient support to grant the EU such a status.

The role of NGOs

NGOs such as Greenpeace and the World Wide Fund for Nature are becoming more active in the protection of the Arctic area, occasionally leading to conflicts with both Arctic states and multinationals. The main aim of NGOs is to raise public awareness and try to affect change in policies of states and companies. Hacquebord drew attention to the fact that NGOs (together with the media) have changed our perception of the Arctic area, by portraying it as a fragile ice wilderness with special animals that belongs to all of humanity and which is being ‘invaded’ by oil companies.

---

[1] Unfortunately, none of the contacted companies was able or willing to participate in this debate.

[2] According to Simons, this survey has showed that there is (possibly) enough oil to meet world demand for about three years.

[3] ‘The Arctic Ocean is a unique ecosystem, which the five coastal states have a stewardship role in protecting. Experience has shown how shipping disasters and subsequent pollution of the marine environment may cause irreversible disturbance of the ecological balance and major harm to the livelihoods of local inhabitants and indigenous communities. We will take steps in accordance with international law both nationally and in cooperation among the five states and other interested parties to ensure the protection and preservation of the fragile marine environment of the Arctic Ocean.’

[4] Article 193 LOSC provides in general terms that: ‘Sovereign right of States to exploit their natural resources States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.’

Shared responsibility and the draft EU-ECHR Accession Agreement: some observations regarding attribution and the intervening role of the Court of Justice

 Posted by: Ryngaert Cedric

In this blogpost I reflect, from a shared responsibility perspective, on two issues arising under the draft EU-ECHR Accession Agreement: (1) the question of to whom EU member states’ acts implementing EU law are attributed, and why; (2) the intervening role reserved for the Court of Justice of the EU (CJEU) in proceedings brought before the European Court of Human Rights (ECtHR). The relevant provisions in the draft Accession Agreement are Art. 1(3), respectively Art. 3(6).

 

1. Issues of attribution

The draft Accession Agreement makes it clear that the attribution of responsibility may be a function of the relevant primary norms of international law, and their scope (the ECHR norms in the case) rather than of secondary rules that are applicable across-the-board. Questions of shared/exclusive responsibility are then conceived of differently with respect to the ECHR than, say, the World Trade Organization (WTO). In the former case, acts of EU member states implementing EU law are attributed to the member state rather than to the EU, whereas in the latter, such acts are attributed to the EU, the member states being mere agents or organs.

The somewhat idiosyncratic way of addressing responsibility issues at the ECtHR can be explained by the fact that the EU has not been a Contracting Party to the ECHR. As a result, the issue has always been whether a given individual fell within the jurisdiction of a (EU member) state that was an ECHR Contracting Party, and thus whether the impugned acts could be attributed to that state. In a second stage, the Court then went on to inquire whether the member state could (partially) escape its responsibility by hiding behind EU law. This is the well-known approach taken in Bosphorus v. Ireland (2005).

This approach has also been incorporated in the Accession Agreement. Article 1(4) indeed attributes all acts that are allegedly contrary to the ECHR obligations and are not the acts, measure or omissions within the meaning of Article 1(3) for which the ECHR imposes obligations on the EU, to the member state. In essence, this means that all member states’ acts implementing EU law will normally be attributable to the member state itself. But as we know, Bosphorus allowed member states to get off the hook if they could convince the Court that the impugned EU acts were broadly speaking ECHR-compliant (equivalent protection principle). If they could not do so (in practice they always could), the member states would be held responsible. In no case could the EU be held responsible. The Accession Agreement now changes this approach somewhat, via the co-respondent mechanism (‘the EU can become co-respondent in a procedure directed against an EU member state, if the case calls into question the compatibility of a provision of Union law – both under TEU and TFEU secondary law – with the rights protected by the ECHR’). This mechanism enables the Court to eventually hold the EU responsible – possibly alongside the member state – although the act itself is not attributed to it (‘attribution of responsibility’). This is only fair, as a member state should not be solely held responsible when it does nothing more than implementing EU obligations (or in WTO terms: when it merely acts as the agent of the EU; in the WTO this has led to exclusive attribution to, and responsibility for the EU). Ultimately, allocating responsibility to an actor who cannot prevent or redress a wrongful act does not serve a purpose.

A question that may subsequently arise is whether the EU and the member state could incur joint responsibility under the new system. In itself, the Accession Agreement remains silent on how to precisely apportion responsibility between the EU and the member state. In my view, it is not inconceivable that the ECtHR might conclude to joint responsibility. This seems to follow from the application of the Bosphorus principle hitherto: a member state may ultimately be held responsible for failing to take measures to ensure that an international organization, to which the state has transferred competencies, adequately complies with human rights.

 

2. The intervening role of the Court of Justice of the European Union

A curious provision of the draft Accession Agreement, Art. 3(6), gives the CJEU a chance to express its opinion on the compatibility between Union (secondary) law and the ECHR, if it has not yet had the opportunity to do so. This allows the EU to exhaust its internal remedies so as to remedy a situation before the ECtHR steps in.

Art. 3(6) of the draft Accession Agreement appears to be particularly relevant in respect of failures of EU member state courts to request a CJEU preliminary ruling concerning an EU law question with human rights overtones (I elaborate on this in a forthcoming article in the European Law Review). The ECtHR has so far mainly dealt with EU member state courts’ decisions to refrain from requesting a preliminary ruling as cases arising under Article 6 ECHR: if such decisions are insufficiently reasoned and arbitrary, they may compromise the fair trial rights of the aggrieved individual. In the recent Michaud v. France (2012) case, however, which has set the stage for the aforementioned Art. 3(6), the ECtHR – rather than examining the reasons for the refusal – inquired whether the substantive legal issue at play in the proceedings was compatible with individual rights as protected by the ECHR. The Court notably reviewed whether the French implementation acts with respect to EU Directives on money laundering were compatible with the right to privacy (including professional secrecy) as laid down in Article 8 ECHR, without the CJEU having ruled on this matter.

This substantive approach to failures to request a preliminary ruling should at first sight follow the reasoning followed by the ECtHR: the French act of implementation suffices to bring the aggrieved individual within the jurisdiction of France (the first step in Bosphorus), while further ECtHR inquiry into the matter should be blocked on the ground that the EU provides equivalent rights protection (the second step in Bosphorus). However, what distinguished Michaud from Bosphorus, according to the Court, was that the CJEU had not yet examined the legal issue, neither in a preliminary ruling procedure concerning another case, nor in another procedure brought by a member state or an EU institution (para. 114). The ECtHR admitted that in principle, indeed, the CJEU provides equivalent rights protection, but that such protection does not mean much when the CJEU has not had the opportunity to actually examine the legal issue. When this is the case, the international mechanism which controls respect for human rights, ‘[n’]ait pu déployer l’intégralité de ses potentialités’, as a result of which the Bosphorus-based presumption of equivalent rights protection does not apply (para. 115).

This is certainly far-reaching, as the ECtHR is essentially taking the place of the CJEU in the preliminary ruling or other EU judicial procedure, thereby plugging the gaps in EU judicial protection and pre-empting the CJEU’s analysis of the subject matter. Still, it is of note that the ECtHR refrained from directly reviewing EU law, instead concentrating on the French law implementing EU law. This approach, aimed at respecting the autonomy of the EU legal order, was possible because the EU law relevant to the case consisted of EU Directives which are – unlike the EU Regulations at play in Bosphorus – only binding as to their result, and which thus leave the member state with some room for maneuvering.

As in Michaud the ECtHR focused on domestic law rather than EU law, thereby concentrating on the member state’s implementation freedom, its intrusive effect on EU law should not be overstated. Nevertheless, this circumvention strategy has its obvious limits, as it may not always be self-evident to determine what is implementation freedom and what is not. Michaud, at any rate, demonstrates that the ECtHR is not actively isolating member state discretion for review purposes (in the case it reviewed all relevant French law, regardless of its origin, in light of Article 8 ECHR). And when there is no implementation freedom, such as in case of an EU Regulation, the ECtHR would directly review the ECHR compatibility of an EU legal instrument.

The draft Accession Agreement makes such a review possible – a very logical consequence of the EU joining the ECHR – but at least Art. 3(6) allows the CJEU to act as a first reviewer of the human rights compatibility of (the interpretation of) an EU legal instrument if it has not intervened yet. This provision is an acknowledgment that the EU system of judicial protection may be not watertight, and that individuals may be forced to apply to the ECtHR because of EU institutional failures, or lack of readily available internal EU remedies. But at the same time, its very existence may put pressure on EU institutions and their member states to provide more systematically for proper internal EU remedies, thereby preventing awkward applications from reaching the ECtHR for lack of an EU remedial avenue.

A shared responsibility trap: supplying weapons to the Syrian opposition

 Posted by: Nollkaemper André

Cross posted on EJIL: Talk!

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons.

Of course, delivering weapons to opposition groups that aim to overthrow the sitting government of the Republic of Syria is wrongful in itself, irrespective of any wrongs that may be committed by the opposition. This was discussed earlier by Dapo Akande at EJIL talk. Depending on their nature and purpose, such delivery can be contrary to the prohibition on the use of force (article 2(4) UN Charter). This will also hold for the military action needed to enforce a no-fly zone that is now being considered. It could be argued that arms deliveries that would have as their sole purpose the protection of civilians (which appears to have been the aim of the EU Ministers) need not be contrary to the prohibition on the use of force. But the assumption that such deliveries can be clearly distinguished from other deliveries and be limited to protection purposes seems doubtful. In any case, this would not make them lawful, as arms deliveries would remain contrary to the principle of non-intervention in the domestic affairs of Syria. Arms deliveries to the opposition in Syria moreover may be contrary to UN Security Council Resolution 2083 (2012), which prohibits supplying arms to persons or entities linked to Al-Qaeda. It has been reported that a recent supply of weapons to the Syrian rebels by Qatar, with US approval, ended up being used by groups linked to Al-Qaeda.

The exceptions that in other cases may remove the wrongfulness of arms deliveries do not lead to a different outcome in this particular factual context. There is neither a Security Council Resolution that allows for such deliveries, nor consent of the Assad government (which, to the dismay of many Western governments, still qualifies as the government of Syria). Weapons deliveries cannot be qualified as a lawful countermeasure, also taking into account that the true aim of such deliveries would appear to be the overthrowing of the Assad regime rather than only ending the wrongs. As pointed out by Dapo Akande, nor does the label ‘humanitarian intervention’, which was accepted by both the United Kingdom and the Netherlands as a potentially lawful option, provide a lawful exception. The fact that the US now throws chemical weapons into the equation does not make weapons deliveries lawful. Use of chemical weapons may lead to aggravated moral concerns, but there is no basis in international law for transforming a wrong into a right when chemical weapons are used.

All of this means that States supplying weapons will in principle be responsible for their own acts, quite irrespective of what the opposition does with such weapons.

However, the wrongs may become connected. It has been said (for instance, in Austria’s policy paper) that States that supply weapons to opposition forces may be complicit with the opposition forces. The argument is not an easy one to make. International law does not have a rule that provides for complicity of States for aiding non-state actors (unless perhaps a treaty provision applies, such as the Genocide Convention). The EU safeguards that have been built into the EU Code of Conduct on Arms Exports seek to prevent such complicity. They do not allow for trade in arms when there is a clear risk that the equipment might be used in the commission of serious violations of international humanitarian law, or where the export of weapons would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. Violation of this Code of Conduct does not lead to responsibility under international law.  

However, an assessment of the legal consequences of the supply of arms has to take a more long-term perspective. The ulterior motive would appear to be to secure the demise of the Assad regime and to propel the opposition into power. The Dutch government has outlined this scenario in a letter to the House of Representatives of 4 June. This states that ‘[t]he lack of legitimacy of the Assad regime, and the wide recognition of the [Syrian National Coalition for Opposition and Revolutionary Forces] as a legitimate representative of the Syrian people, has led the government to believe that supplying material to the [Syrian National Coalition for Opposition and Revolutionary Forces] in extraordinary situations and under specific conditions need not be contrary to public international law.’

As a matter of international law, this is a doubtful legal basis for considering the delivery of weapons to be lawful. Neither the legitimacy of a sitting regime nor the recognition of opposition forces as the legitimate representative of the people of Syria are relevant for the assessment of lawfulness of arms deliveries to the opposition (perhaps this may be different in the context of self-determination, as discussed by Dapo Akande).

But the letter does provide an interesting insight into the preferred, and perhaps expected, trajectory. The thought appears to be that in the process of eroding the legitimacy of an incumbent regime, and prior to the rise of a new regime that is considered to be the representative of the State, a grey zone exists in which providing support to rebels need not be contrary to public international law. In the abstract, this is not an unreasonable position. However, a State that concludes that the process has indeed made sufficient progress and supplies weapons faces a double risk.

If the Assad regime does survive, which is increasingly likely, arms deliveries will be considered unlawful. In that case, the argument that the regime was at some moment no longer legitimate will not be a valid one under public international law. Weapons deliveries will then be wrong, aside from how the opposition uses the weapons.

But if the opposition forces do prevail, as is hoped by the States now considering the supply of weapons, another risk presents itself. No one will complain that the supply of arms has breached the principle of non-intervention. But the supply of arms may well result in a shared responsibility. Syria, as a State, can, on the basis of the principle laid down in article 10 of the Articles on the Responsibility of States for Internationally Wrongful Acts, be held responsible for wrongful acts committed by the then opposition groups.

This scenario exposes the shared responsibility trap. Driven by moral concerns that lead them to abandon their bystander role, States may start to supply weapons to the opposition, propelling the opposition to victory. But once that victory has been achieved, those States may share the responsibility for the acts of what were once the opposition forces.

Transfer of vulnerable asylum seeker to Italy not in violation of ECHR

 Posted by: Heijer Maarten den

The European Court of Human Rights declared inadmissible a complaint brought against Italy and the Netherlands of an asylum seeker whose transfer to Italy was ordered by the Dutch authorities pursuant to the EU Dublin Regulation (Mohammed Hussein a.o. v the Netherlands and Italy). The Court’s rigorous scrutiny of the treatment of asylum seekers in Italy suggests that it aimed to set a standard for similar cases.

After the European Court had declared the intra-EU transfer of an asylum seeker to Greece in violation of the European Convention on Human Rights in January 2011 (the case of M.S.S., see also here), litigation in several Member States shifted to other allegedly unsafe countries for asylum seekers, in particular Italy. Some NGOs highlighted failures in the Italian protection system and advised to refrain from deporting asylum seekers to Italy (see here and here). Information of the Court shows that in 2012, the European Court accepted seven requests for interim measures to the effect of suspending expulsions from the Netherlands to Italy. Presumably, these are all Dublin transfers. The Court also refused 22 of such requests however. The cases in which it did order an interim measure concerned particularly vulnerable asylum seekers, such as minors and mothers with young children. It appears that this is the first case in which the Court substantially deals with a Dublin transfer to Italy.

The complaint was brought by a mother from Somalia with two young children. She arrived by boat from Libya in Italy in 2008 where she stayed for eight months before travelling onwards to the Netherlands (because, so she told the Dutch immigration authorities, she had heard that it was safe there and ‘the people nice’). Her two children were both born during her stay in the Netherlands. After her transfer to Italy was ordered and national remedies exhausted, she applied to the European Court, which issued an interim measure suspending her transfer.

Because Italian reception conditions have been debated for some time now, the Court could rely on much material. It considers on the basis of the reports and the relevant Italian law that the situation in Italy differs considerably from that in Greece. Despite some shortcomings, there is no systemic failure to provide support to asylum seekers or persons with refugee status. The Court finds this corroborated by the story of the mother. After having arrived in Italy, she was placed in a reception facility where her asylum application was processed and indeed granted after five months. She was also provided with medical care once it became known that she was pregnant. Her previous stay in Italy did therefore not attain the minimum level of severity required for treatment to fall within the scope of Article 3 of the European Convention. The Court further concludes that there are no indications that the applicant will not be able to invoke the assistance of the Italian authorities once she returns there with her children.

Because the complaint is declared manifestly ill-founded, the decision seems to bring an end to the debate whether Dublin transfers to Italy are possible. It might be recalled however, that the European Court had also displayed initial restraint in cases concerning Dublin-transfers to Greece (see K.R.S. v the United Kingdom). It was only after a complaint had been brought by an asylum seeker who had actually been transferred to Greece and had not been provided with any assistance whatsoever (as was the case in M.S.S.), that the Court was forced to change its position. It does seem that the chances that that will happen in Italy are much smaller however.

Judge Giorgio Gaja on Shared Responsibility of EU

 Posted by: Boon Kristen

On 11 April, Judge Gaja gave a SHARES lecture entitled “The relations between the European Union and its member states from the perspective of the ILC Articles on Responsibility of International Organizations.” In his remarks, Judge Gaja discussed various aspects of the European Union’s relationship to the Articles, including its plea for special status, the implications of the EU’s forthcoming accession to the European Court of Human Rights, and the application of Articles 14 – 17 to international organizations generally.

Of particular note were his remarks on shared responsibility and the EU.  Under the Articles, the EU responsibility might arise if it breaches an international obligation by act or omission.  Judge Gaja used the Chile v. European Communities case based on dispute between Chile and Spanish fishermen fishing swordfish outside of the EEZ of Chile as an example of a situation where the EU might have been found responsible for failing to achieve a certain result, in this case the preservation of swordfish. Although the case settled, the EU has exclusive competence for the conservation of maritime resources and consequently there is little question it would have been responsible for any breach (see Hoffmeister’s article here).

Judge Gaja hypothesized that the EU might also have ancillary responsibility under international law if it fails to prevent a certain result, or is found to contribute to the harm. Using the example of genocide, and drawing on the ICJ’s decision in the Genocide case, he stated that if the EU has the capacity to prevent acts of genocide and does not, it could be internationally responsible. In other words, there is an ancillary duty to prevent in international law that may at times extend to international organizations.

Finally, Articles 14, 15 and 17 of the Articles on IO Responsibility establish situations under which IOs might be found responsible for aiding and assisting, directing and controlling, coercing, or circumventing obligations through IO decisions that bind members that would be internationally wrongful for the IO itself. Of particular note were Gaja’s observations that EU Mixed Agreements might create a basis for responsibility under Article 14.

The Question and Answer period focused on questions of lex specialis under Art. 64 of the Draft Articles. This provision states that the draft articles do not apply where special rules of international law apply.  Special rules can be derived from an organization’s founding treaty, decisions, resolutions and other acts of the treaty, and by practice. Audience members commented on the difficulty of ascertaining the scope of this provision, including the problematic case of determining which body of specialized law, between for example the EU and WTO would be more specialized. Moreover, the importance of practice, and the implications of the lex specialis provision for third states arose. Judge Gaja’s lecture will be published as a SHARES working paper in the near future.

Shared responsibility after EU accession to the ECHR revisited

 Posted by: Lock Tobias

After almost three years of negotiations a final draft agreement on the accession of the EU to the European Convention on Human Rights has been published (here). I considered it therefore appropriate to revisit some of the criticisms I made on an earlier draft in this blog (here). In line with this blog’s remit, I shall again focus on the issue of shared responsibility and will in particular aim to explain the workings of the co-respondent mechanism, which is the agreement’s central innovation.

As explained in my previous post one of the key challenges for the negotiators of the accession agreement was to create, as required by Protocol 8 to the Lisbon Treaty, ‘the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.’ The background to this is that it is chiefly the EU’s Member States which apply European Union law. Thus where a provision of EU law is (allegedly) in violation of the ECHR, a claimant will be confronted with an act by a Member State authority and will consequently seek remedies in the courts of that Member State. If these remedies are unsuccessful, the claimant can file an individual application with the European Court of Human Rights (ECtHR). The respondent in such a case would be the Member State. Yet the actual cause for the violation lies in EU law and can only be remedied at EU level (e.g. by amending the piece of legislation in violation of the ECHR). In my previous post I remarked that the solutions found in an earlier draft of the accession agreement were not entirely satisfactory for two reasons: 1) that there was no explicit exclusion of a defence raised by a Member State that it was not responsible for the violation as the violation was rooted in its obligations under EU law; 2) the voluntary character of the co-respondent mechanism. Both flaws have now been removed.

Article 1 (4) of the accession agreement provides that an act or omission of organs of a Member State shall be attributed to that Member State even where it implements EU law. This provision therefore expressly excludes the defence of not being responsible for a violation rooted in EU law. This provision already shows the way in which the accession agreement envisages the primary responsibility to be distributed between the EU and its Member States. The decisive question is which entity has acted vis-à-vis the applicant. If it was an EU institution (e.g. the European Commission fining a company in cartel proceedings) the EU is the correct respondent. If it was a Member State authority (e.g. the Home Secretary freezing the applicant’s assets) it is the Member State, no matter whether the legal basis for the Member State action was rooted in EU law or whether it was purely domestic in nature.

The co-respondent mechanism is designed to address the issue that in the case of the EU and its Member States attribution and responsibility may not coincide. Where the Member States acts because of an obligation under EU law, the act is attributed to the Member State, but in fact the EU may be truly responsible for the violation. In order to allow for the EU to be brought into the proceedings, the mechanism allows the EU to join them not only as a third party intervener, but as a co-respondent. This means that the EU will become a party to the proceedings alongside the Member State so that the judgment will be binding on the EU as well.[1] The precise conditions under which the co-respondent mechanism will be triggered are not exactly straightforward. For the situation in which a Member State is named as the main respondent, Art. 3 (2) of the draft accession agreement provides that:

Where an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of European Union law, including decisions taken under the TEU and under the TFEU, notably where that violation could have been avoided only by disregarding an obligation under European Union law.

This means that an applicant must claim that a provision of EU primary or secondary law or a decision by the EU institutions is in violation of the ECHR. In my previous blog post I criticised that the co-respondent mechanism as foreseen in the then available draft was voluntary. Thus the mechanism did not ensure that responsibility between the EU and the Member States in such cases is attributed correctly since there was no guarantee that the EU would actually join the proceedings. The draft agreement itself has not been amended in this respect. However, in Annex II to the draft agreement the European Union makes a declaration promising to ensure that it will request to become a co-respondent in cases where the above conditions are met. Thus while the draft agreement itself does not compel the EU to become a co-respondent, the Union has voluntarily agreed to become a co-respondent whenever this is possible. This is a more than welcome development ensuring an effective protection of the human rights contained in the Convention.

Interestingly, the Member States do not appear to have undertaken a similar obligation in the reverse case where the EU is the main respondent. In such a case the Member States may become co-respondents if the violation is rooted in primary EU law (i.e. the Treaties). This is because violations of the ECHR rooted in primary law can only be removed by way of a Treaty amendment, which all Member States must ratify. In such cases the co-respondent mechanism would only really make sense if all the Member States became co-respondents since the EU’s treaties can only be amended unanimously. It remains to be seen whether the Member States will undertake the same commitment as the Union. Given that Protocol 8 to the Lisbon Treaty obliges them to ensure that applications are correctly addressed, this would certainly be appropriate.

Finally it is worth mentioning that the draft agreement does not provide rules for the distribution of responsibility between the EU and the Member State(s) in case the Court finds a violation. Article 3 (7) merely states that they should be jointly responsible, but it also allows the Court to rule that only one of them should be responsible. If the Court finds the Union and the Member State(s) to be jointly responsible and awards damages to the applicant, the EU and its Member States will have to come to an agreement as to who will ultimately have to pay. This brings us to the next stage of the EU accession negotiations. Now that an agreement has been drafted, the EU will have to adopt internal rules. Apart from the question of who will have to pay, the internal rules will need to lay down the procedure for the involvement of the European Court of Justice (ECJ) in (some) co-respondent cases, address the representation of the Union before the ECtHR and many more details. Once the internal rules have been agreed, they together with the draft agreement will be presented to the ECJ for an Opinion as to their compatibility with the EU’s treaties. If the ECJ gives a green light, the ratification process can finally commence.

---

[1] Art 3 (1) of the draft agreement.

Sharing responsibility? The co-respondent mechanism and EU accession to the ECHR

 Posted by: Lock Tobias

The negotiations on accession by the EU to the ECHR have recently entered their final stage. Representatives of the EU and of the forty-seven parties to the ECHR (the so-called Group 47+1, which has published the reports of its first and second meeting) are scheduled to meet twice this autumn to agree on a final accession agreement. It is likely that it will largely be based on the draft agreement on EU accession, which was made publicly available last year. Once final agreement has been reached, it is very likely that the Court of Justice of the EU (CJEU) will be asked for an Opinion on whether the agreement is compatible with the EU Treaties. Should the CJEU give the agreement a green light, the ratification process can begin.

This blog entry asks whether the co-respondent mechanism provided for in the draft agreement leads to a sensible allocation of responsibility between the EU and its Member States for violations of the Convention post-accession.[1] By introducing the co-respondent mechanism, the drafters aimed to resolve the problem that after accession both the EU and its Member States will be parties to the ECHR. Since it is mainly the EU’s Member States which implement obligations laid down in EU primary and secondary law, an applicant will usually hold the implementing Member State responsible in the European Court of Human Rights after having exhausted the domestic remedies in that Member State’s legal order. The problem is that the violation of human rights may not necessarily be the Member State’s fault as it may well have been contained in a provision of EU law. Thus even if the Member State is convicted in Strasbourg, it will be unable to remedy the violation since it lacks the competence under EU law to do so. In such cases it would therefore make sense to involve the EU in proceedings and thus to extend the binding reach of the judgment to it. The same is true in the reverse situation where the EU is held responsible for alleged violations contained in its primary law (mainly the EU’s Treaties). In such a case it would make sense to make the Member States join the proceedings as it is only they which can agree on a Treaty change.

As a solution to this problem, Article 3 of the draft accession agreement introduces the co-respondent mechanism. It provides that where a Member State is taken to the ECtHR and it appears that the alleged violation of the ECHR calls into question the compatibility with Convention rights of a provision of EU law, the EU may become co-respondent. The same is true in the reverse situation. Where the EU is respondent in proceedings before the ECHR and it appears that the allegation calls into question the compatibility with Convention rights of a provision of EU primary law, the Member States may become co-respondents.

The status of co-respondent will be unique in the ECHR legal order. Its main features are that the co-respondent becomes a party to the proceedings so that the judgment is also binding on it. The key difference to the status of an ordinary respondent is that the applicant does not need to exhaust the domestic remedies in the co-respondent’s legal order. Procedurally, it therefore reduces the burden for the applicant and is to be welcomed.

The main flaw of the mechanism, as laid down in the draft agreement, is that the co-respondent cannot be forced to join proceedings. Rather, the status is voluntary. This calls into question the main rationale behind the mechanism, which is the ‘correct’ attribution of responsibility between the EU and its Member States. From the perspective of EU law, this attribution cannot be undertaken by the European Court of Human Rights since it would violate the autonomy of European Union law if a court other than the EU’s Court of Justice made such an assessment (for details see here). The rationale for the voluntariness of the co-respondent status given in the explanatory report is that a party cannot be forced into proceedings where it was not named in the initial application. Yet this argument is based on a mere technicality and is hardly convincing. There is no reason why an applicant should not ask another party to join proceedings at a later stage provided that the procedural rights of that party are respected, especially regarding their right to be heard. In addition, the draft appears to contradict the rationale for the co-respondent mechanism. According to the explanatory report, the main reason for its introduction is to avoid gaps in the participation, accountability and enforceability in the Convention system. But a voluntary mechanism leads to exactly such gaps. The EU or a Member State may well decide to steer clear of proceedings even though they would be responsible for the alleged violation. The fact that the applicant can nominate both from the outset does not remedy this problem since it would force the applicant to exhaust domestic remedies in all legal orders concerned, which is not only costly but also time-consuming. It should especially be borne in mind that an applicant before the ECtHR does not need to be represented by a lawyer so that she may not even be remotely aware of these requirements. It follows that the current draft only achieves sub-optimal results regarding the efficiency of human rights protection for individuals.

This is coupled with the danger that a Member State raises the defence that it was not responsible for the violation as the violation was rooted in its obligations under EU law and it had no discretion. If such a defence were possible, neither the EU nor the Member State would be responsible in the ECtHR[2], which would defeat the whole purpose of EU accession. The draft and the explanatory report are silent regarding this possibility. It is important that the ECtHR would not accept such a defence. Otherwise, the human rights protection as regards EU law would risk being less effective than it is now. It is suggested that the draft presupposes that no such defence should be possible. It is therefore suggested that the responsibility in such situations should generally be joint. Neither the Member State nor the EU should have a possibility to escape it. This seems to have been recognised by the EU as it tabled an amendment to the draft accession agreement during the first meeting of Group 47+1, which states that acts of the EU’s organs remain attributable to the Member States even where they occur when the Member States are implementing their EU law obligations.[3]

It would therefore be welcome if the on-going negotiations on EU accession revisited this issue and came to a more convincing solution. The co-respondent mechanism is generally a good solution to balance the interest of the EU and its Member States in not allowing an external court to decide who was internally responsible with the interest of a potential victim of a human rights violation to get an effective remedy. But the co-respondent mechanism can only work if it leads to truly shared responsibility before the ECtHR. Otherwise, there is a risk of thwarting the overall aim of EU accession to the ECHR, which is the improvement of human rights protection in Europe.

For a more detailed version of the arguments made in this blog post see my forthcoming article “End of an epic? The draft agreement on the EU’s accession to the ECHR” in the Yearbook of European Law 2012. A pre-edited version of that article can be found here.

---

[1] This blog post repeats part of the argument I made at my SHARES lecture on 4 October on EU accession to the ECHR and the co-respondent mechanism. It is limited to explaining the main rationale for the co-respondent mechanism and to criticising its voluntary character. Other issues of shared responsibility could not be addressed (e.g. the question of who should have to pay ‘just satisfaction’ where the co-respondent mechanism applies).

[2] This argument assumes that in most cases an applicant would not be able to bring a case against EU legislative acts directly against the EU since it would lack the status of a victim required by Article 34 ECHR.

[3] Meeting report 47+1(2012)R02, page 15.