Global health issues and shared state responsibility? The case of Ebola

Posted by: Schechinger Jessica

The current Ebola outbreak in West Africa is illustrative of a global health issue which requires collective global action. The rapid spread of the virus is alarming health experts. At the time of writing, the number of reported deaths has reached more than 3,338, and the virus could spread even further across borders. States that are most affected are Liberia, Guinea and Sierra Leone, but Ebola cases have also been reported in Nigeria, Senegal, and the Democratic Republic of the Congo.

Calls for concerted action and international assistance

Calls for concerted action to tackle the virus have been many. On 16 September 2014, President Obama called on states to speed up the global response to the current Ebola outbreak in West Africa. He warned that without the quick deployment of health care workers, treatment centres and medical equipment, the disease could result in hundreds of thousands of deaths. President Obama said during a meeting with doctors who had just returned from West Africa, that the world, ‘has the responsibility to act, to step up and to do more. The United States intends to do more.’ This statement is interesting, since it suggests that there is a responsibility resting on the international community, obliging each state to act (and do more than it currently does) in response to the present Ebola outbreak. However, it is doubtful that he referred to a legal obligation.

The calls for cooperation and collective action are warranted since a state alone cannot tackle this global problem. Even though the contribution announced by the United States (US) (deploying 3,000 military personnel – including physicians and nurses – medicine, and equipment to Liberia and Senegal)[1] could make a difference due to its significant scale, health officials considered a coordinated approach from other Western powers crucial in order to bring the virus under control. Jim Yong Kim, president of the World Bank and expert in infectious diseases, said for example that ‘[e]veryone realizes that no one group or one country or one organization is going to be able to tackle this’.

It can be argued that the UN has some sort of responsibility in this matter, which would probably at least entail to hold meetings, call upon states to act, and coordinate relief efforts.[2] The UN indeed appears to have done a lot in last couple of weeks.

On 8 August 2014, the World Health Organization declared the present Ebola outbreak in West Africa ‘a public health emergency of international concern’.[3] During the United Nations (UN) system-wide coordination meeting on 13 August, the UN Secretary-General called on the international community to respond to the shortage of medical staff, protective clothing etc. Furthermore, Ban Ki-moon issued an ‘international rescue call’ for more assistance, and vowed to mobilise the UN to respond to the outbreak, on 9 September. He urged the international community to provide the money needed to stop Ebola transmission in affected countries, and to prevent the further international spread of the virus. Reportedly USD 987.8 million is needed over the next six months for a large scaled response.

The UN Security Council unanimously adopted Resolution 2177(2014) at an emergency meeting on the outbreak in West Africa on 18 September. This Resolution declared the present Ebola outbreak a ‘threat to international peace and security’ in its Preamble.[4] Furthermore, it called on member states to ‘lift general travel and border restrictions’ and ‘provide urgent resources and assistance’. At the meeting, the Secretary-General announced the UN was going to deploy an international emergency health mission called ‘UN Mission for Ebola Emergency Response’ (UNMEER, the first-ever UN emergency health mission) with the aims to: first, stop the outbreak; second, treat the infected; third, ensure essential services; fourth, preserve stability; and fifth, prevent further outbreaks in other states. He added that its effectiveness is dependent on support from the international community. On 22 September, the UN has set up the ‘Ebola Response Multi-Partner Trust Fund’, seeking contributions from member states, but also e.g. businesses and individuals.[5] It also launched a website on the UN system’s global resonse to the Ebola outbreak.

On 19 September, the UN General Assembly underlined its commitment to respond to the outbreak ‘in a timely, effective and coordinated manner’ in Resolution GA/11552 (unanimously adopted). The Mexican representative considered the adoption to be ‘a clear testimony of international cooperation’.

At the ‘High-level Meeting on Response to the Ebola Virus Disease Outbreak’ on 25 September, Ban Ki-moon noted the ‘overwhelming international political momentum for the UN to play a leading role in coordinating the global response’.

Is there a legal obligation resting on states to cooperate in response to an outbreak elsewhere?

The question that arises is whether there exists a legally binding obligation to cooperate in relation to the Ebola crises under international law. Such an obligation might be inferred from the right to health.

General Comment No. 14 of the Committee on Economic, Social and Cultural Rights, elaborating on Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (the right to health) seems to be of importance. It provides in para. 40:

States parties have a joint and individual responsibility, in accordance with the Charter of the United Nations and relevant resolutions … to cooperate in providing disaster relief and humanitarian assistance in times of emergency … Each State should contribute to this task to the maximum of its capacities … Moreover, given that some diseases are easily transmissible beyond the frontiers of a State, the international community has a collective responsibility to address this problem. The economically developed States parties have a special responsibility and interest to assist the poorer developing States in this regard. (emphasis added)[6]

In this specific context, Article 44 dealing with ‘collaboration and assistance’ of the International Health Regulations (2005) provides that:

1. States Parties shall undertake to collaborate with each other, to the extent possible, in: (a) the detection and assessment of, and response to, events as provided under these Regulations; (b) the provision or facilitation of technical cooperation and logistical support, particularly in the development, strengthening and maintenance of the public health capacities required under these Regulations; (c) the mobilization of financial resources to facilitate implementation of their obligations under these Regulations. (emphasis added)

In addition, the Security Council Resolution S/RES/2177 (2014) emphasised in the Preamble that ‘the control of outbreaks of major infectious diseases requires urgent action and greater national, regional and international collaboration … stressing the crucial and immediate need for a coordinated international response’.

Do individual states have obligations?

Another question is whether some states have ‘special obligations’ to help affected states because of their status as for example former colonial power or developed state? Maybe the principle of common but differentiated responsibility applies in the context of global health?[7]

Such a ‘special responsibility’ would not necessarily only have to rest on economically developed states. The New York Times suggests that states with historical or colonial ties have a ‘special obligation’ to help the affected state in need. According to the newspaper, US administration officials urged the United Kingdom (UK) and France, which both have colonial ties to affected states, to come up with stronger responses. Thus far, France has sent USD 13 million to Guinea for medical equipment and the construction of medical centres, and USD 15.5 million and doctors to Ivory Coast and Senegal, both being former French colonies. Troops from the UK, are reportedly headed to its former colony Sierra Leone, in order to build and staff a 63-bed facility near Freetown. Such a ‘special responsibility’ does however not exist under current international law. Only a greater moral responsibility can be argued to exist for certain countries having ties with states that are in need of help.

The current Ebola crisis also shows why it will be difficult to develop such a ‘special responsibility’. There are many tough choices (e.g. which state(s) a state decides to help and which not) that seem hardly possible to be settled by law. Whenever a state helps a certain affected state, and does not help others, or to a lesser extent, this may be critically received. Some health experts for example said that Obama’s plan placed too much focus on Liberia, and not enough on Sierra Leone and Guinea. However, some six months after the start of the outbreak, Liberian authorities continue to be unable to carry out the most basic steps required to stop the spread of Ebola. In addition, President Ellen Johnson Sirleaf has written to President Obama and the leaders of China, Russia, as well as other states, directly asking for help. The focus of the US on Liberia seems justified because, besides Liberia’s historical ties to the US (Liberia was founded by freed US slaves in 1822), it has the highest number of Ebola infections, and it strongly needs help to deal with the problem on the ground.

Besides states having historical or colonial ties to an affected state, do neighbouring states have different or certain specific obligations if an outbreak occurs in an adjacent country? Is there an obligation to be solidary with, and provide assistance to, one’s neighbours? Or what about states in the region? Do they have a different type of responsibility compared to states that are located far away from an outbreak? An example of concerted action may be that West African states and international health organisations have adopted a new common strategy to fight Ebola on 3 July 2014. Member states especially of the region have been called on by the Security Council to ‘facilitate the delivery of assistance, including qualified, specialized and trained personnel and supplies’ at its meeting on 18 September. It is to be noted that the Council explicitly mentioned states in the region. However, also for these types of states an obligation does not seem to exist under international law.

In practice, states such as Brazil, Canada, China, Cuba, Germany, India, Russia and Turkey, which at first sight do not seem to have (historical) ties to the affected states, have showed their solidarity by contributing, mostly by donating money, or sending medical staff, medicines or equipment to the affected states.[8]

Generally, the content of the legal obligations of states is not very clear in this context. Now seems to be the appropriate time to develop legal instruments, or elaborating upon existing ones, as states have shown the political will to assist the affected states in a meaningful way. Hopefully the ‘coalition’ of cooperating states currently involved in the fight against Ebola can effectively deal with this global challenge, without much more loss of lives.

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[1] The US military plan to build 17 treatment centres of 100 beds each in Liberia. Once constructed, the centres would be turned over to Liberia and staffed by local and international health care providers. In addition to the USD 175 million the Obama administration has already spent, an extra USD billion to fight Ebola is possible; see Juliet Elperin, ‘U.S. may spend up to $1 billion fighting Ebola, administration says’, The Washington Post, 16 September 2014.

[2] E.g. David Nabarro (formerly appointed in August as Senior UN System Coordinator for Ebola), was re-assigned to be the Secretary-General’s Special Envoy for Ebola. Anthony Banbury has been appointed as Special Representative and Head of UNMEER.

[3] According to the International Health Regulations (2005) this ‘means an extraordinary event which is determined, as provided in these Regulations: (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response’.

[4] Also Kristen Boon, ‘The UN Security Council Takes up Ebola’, Opinio Juris, 18 September 2014.

[5] Earlier, during the UNSC emergency meeting Mr Ban also called out to non-traditional donors, e.g. businesses, to contribute in certain sectors, for example transport, see ‘UN announces mission to combat Ebola, declares outbreak ‘threat to peace and security’.

[6] Para. 44 of CESCR General Comment No. 14 provides: ‘The Committee also confirms that the following are obligations of comparable priority: [i.e. core obligations mentioned in para. 43] (c) To take measures to prevent, treat and control epidemic and endemic diseases’.

[7] CESCR General Comment No. 14 suggests it does, e.g. para. 39: ‘if they are able to influence … by way of legal or political means … Depending on the availability of resources’; para. 40 (cited above); and para. 45: ‘particularly incumbent on States parties … in a position to assist’.

[8] See also Resolution GA/11552 for information on the contribution of several states.

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).

Facilitating drone strikes: sharing responsibility for sharing intelligence

 Posted by: Nedeski Nataša

The exchange of information between Dutch intelligence services and the United States National Security Agency (NSA) is no longer taking place entirely outside the public eye. After a graph published in German news magazine Der Spiegel in August 2013 initially seemed to suggest that the NSA had intercepted 1.8 million records of metadata from Dutch phone calls in the period of December 2012 to January 2013, it became clear this February that Dutch intelligence services had gathered these records themselves, and had subsequently shared them with the NSA. This information consisted of metadata records gathered in the context of anti-terrorism and military operations abroad.

A substantial share of Dutch intelligence efforts is directed towards Somalia, and millions of Somali phone calls have been intercepted from both the Dutch town of Burum and Dutch navy ship HMS Rotterdam. The Netherlands has been collecting this information in order to support the Dutch contribution to the navy missions combating piracy in the Gulf of Aden. The (meta)data is shared with the NSA (who do not have access to Somali telephone traffic) and in return the US has provided the Netherlands with technical support needed to intercept local telephone traffic from the HMS Rotterdam.[1]

But it appears that the US has been using this data for a different purpose. Since 2011 the US has been carrying out drone strikes in Somalia in the context of its war against terrorism, and on 8 March 2014 Dutch newspaper NRC Handelsblad revealed that it is likely that the United States is using Dutch data to support drone strike operations on (alleged) members of Al-Shahaab in Somalia. NRC Handelsblad bases this assertion on several Dutch and US documents made public by NSA whistleblower Edward Snowden, and reports that the Dutch Ministry of Defence cannot exclude that the metadata shared with the US is used in order to facilitate such targeted killings.

According to research done by The Intercept metadata play a crucial role in US targeted killings. This places the Netherlands in a tedious position, as the legality of targeted killing by drone strikes remains highly controversial. Assuming that these attacks can at least in some circumstances be qualified as breaches of international law, the Netherlands could be contributing to internationally wrongful acts committed by the US. And it is in good company: the United Kingdom, Germany and Australia have all been accused of involvement in US drone strikes through intelligence-sharing.

A variety of actors appears to be involved in the US’ wrongful acts, including not only states but also individuals. The question that inevitably arises is the following: can these international actors be held internationally responsible for sharing intelligence that facilitates the commission of wrongful acts by the US?

State responsibility for aid or assistance

The obvious place to start in answering this question would be article 16 of the ILC Articles on State Responsibility, which provides that a State can be held internationally responsible when it aids or assists another State in the commission of an internationally wrongful act. When applied to our scenario, it needs to be established that the conduct in question would be internationally wrongful, if it were to be committed by the Netherlands. It is indeed arguable that this would be the case. Moreover, the Netherlands must have had knowledge of the circumstances of the wrongful act. While it is unclear whether the Netherlands was initially aware of the fact that their intelligence might be used to facilitate US drone strikes, it should surely know now (which is relevant as long as the Dutch keep sharing intelligence).

However, it may prove to be more difficult to meet the requirements mentioned in the ILC’s commentaries, which clarify that knowledge is not enough; the Netherlands should have intended to facilitate the US drone strikes in Somalia.[2] Establishing a State’s intent remains a daunting task, which becomes even more difficult in situations that are characterised by such a remarkable lack of transparency.

Moreover, it is not entirely clear what threshold aid or assistance should reach in order to result in responsibility. The ILC’s commentaries at one point state that the aid or assistance should have ‘contributed significantly to the act’, but at another point assert that it ‘may have been only an incidental factor in the commission of the primary act’.[3] In any case, chances are that the extent in which Dutch intelligence has facilitated US drone strikes will remain uncertain. The Dutch Ministry of Defence has stated that revealing the extent in which intelligence contributes to a specific mission would reveal the mode of operation of Dutch intelligence services, which it cannot do as this would endanger both the operation and the lives of soldiers.

Individual criminal responsibility for complicity in war crimes

NGOs Reprieve and the Foundation for Fundamental Rights (FFR) have chosen to address this question from a different angle. On 19 February 2014 they submitted a communication to the International Criminal Court (ICC), requesting the Prosecutor to investigate the role of the UK, Germany, Australia and other NATO allies in US drone strikes in Pakistan. One commentator has already pointed out the difficulties that might arise in establishing the ICC’s jurisdiction.

While the US and Pakistan are not parties to the Rome Statute, the communication argues that the ICC has jurisdiction because a) the drone strikes are launched from Afghanistan, which is a party to the Rome Statute, and b) nationals of the UK, Germany and Australia (which are all parties to the Rome Statute) are potentially facilitating these drone strikes through intelligence sharing. Reprieve and FFR would like to see these individuals be held criminally responsible by the ICC for their complicity in US war crimes. Though there seems to be far less information available on US drone attacks in Somalia, theoretically speaking a similar argument could be made regarding the role of Dutch nationals in targeted killings on Somali territory.

But even though the practice of intelligence sharing gives rise to a variety of potential shared responsibility scenarios, there is one main problem that stands in the way of determining responsibility: the complete lack of transparency surrounding drone strikes and intelligence sharing. It appears that there is currently no international obligation that would require states to disclose such information. Unfortunately, this will more often than not entail that rather than establishing shared responsibility, we are simply left with no responsibility.

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[1] See NRC, ‘The secret role of the Dutch in the American war on terror’, by Steven Derix and Huib Modderkolk, available at http://www.nrc.nl/nieuws/2014/03/05/the-secret-role-of-the-dutch-in-the-american-war-on-terror/.

[2] International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001 (A/56/10), at 66, para. 5

[3] Ibid.; also p. 67, para. 10.

“Everyone does it”: NSA Spying and International Law

 Posted by: Gibney Mark

Seemingly lost in the daily revelations uncovering massive levels of National Security Agency (NSA) surveillance – wiretapping and metadata collection alike – is the issue of who is responsible for these violations of the human right to privacy. The quick and ready answer is the United States and certainly no other country is anywhere near as well placed (or, apparently, as intent) on gathering information on what literally billions of people in the world are doing each day – whether it be who they talk to and email, where (physically) these individuals might happen to be at any given time and who is with them, and finally, what people say, believe and perhaps even think.

Yet, although the U.S. should shoulder the lion’s share of (moral) blame and (legal) responsibility, matters are not nearly as simple as this. For one thing, one of the common refrains, at least by defenders of such surveillance programs, is that “everyone” does it, which seems to suggest that the United States is no different from any other country.

Under this scenario, the United States spies on Germany – but Germany also spies on the United States. In that way, if all are responsible no single country could, or should, bear special responsibility. Setting aside the question whether there is any likelihood that the German government was able to eavesdrop on the conversations of Presidents Bush and Obama over the past decade in the same manner in which the NSA listened in on Chancellor Merkel, still there is at least some logic in this formulation. In addition, perhaps governments really do not have any legitimate expectations of privacy. Thus, the real problem comes when governments spy on ordinary citizens who have shown absolutely no proclivity towards, or sympathy with, international terrorism.

Yet, beyond the obvious issue of privacy, NSA spying raises some important questions concerning international law itself. One involves the meaning of “state sovereignty” in the sense that the United States has been able to systematically operate in a host of other countries over an extended period of years and has done so with impunity. The second way that the principle of state sovereignty gets called into question is that the domestic governments of these spied upon countries apparently made little, if any, attempt to protect the privacy rights of their own citizens. The point is that this is nothing like how state sovereignty is generally conceptualized.

Beyond this, NSA spying casts serious doubt on the dominant interpretation of two of the most vexing terms in international law: “jurisdiction” and “territory.” With regard to the former, there has been a repeated tendency to restrict the meaning of this term to nothing more than “effective control” over a particular individual or an area of land. Yet, the various NSA spying programs show how limited this view of jurisdiction happens to be. At a minimum, we now know that the United States has exercised some form of jurisdiction – there is no other term for it – over at least half of the people living on this planet.

A country’s “territory” does not change. However, what needs to change is our notion that a human rights violation – privacy in this case – necessarily occurs in the country where a person happens to be located. Rather, a person who is in one state can send an email message that can be intercepted in another state and this data can be transferred to additional states. Where, exactly, has the human rights violation taken place?

But to return to the issue of state responsibility, it is important to note that the U.S. has not acted alone. For one thing, some states have served as listening posts for the NSA, oftentimes from their embassies in foreign lands. In addition, data has been shared across national borders, especially when domestic constraints, or at least the fear of domestic backlash, has restricted states from spying on their own citizens. The easy solution, or so it seems, is to rely on the U.S. to do the spying for these states, much in the way that under extraordinary rendition programs the United States has outsourced much of its dirty work to other countries.

It is by no means clear how responsibility under these various scenarios would be assigned or the forum where such claims could be pursued. However, perhaps the real question is whether NSA spying will serve as yet another example of the impotency of international law to address important “global” problems, or whether the unseemly and illegal practices of NSA surveillance can only be reined in by this law.

Tags: NSA, Spying, US

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.

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.

Obligations of the UK in respect of a Pakistani national detained by the US in Afghanistan

 Posted by: Nollkaemper André

At Lawfare, Robert Chesney notes an decision of the UK Court of Appeals (Civil Division) of 14 December that raises interesting questions of shared responsibility. The case is Yunus Ramhmatullah v. Secretary of State for Foreign and Commonwealth Affairs et ano. The Court, by an opinion of the Master of the Rolls, held that a Pakistani man (Yunus Rahmatullah) held by the US military in Afghanistan may pursue a habeas corpus petition against the UK’s Secretary of State for Defence and for Foreign and Commonwealth Affairs.

Yunus Rahmatullah was captured in Iraq by British forces in 2004 and then transferred to US custody. In 2004 the US moved Yunus Rahmatullah from Iraq to Afghanistan. Despite the fact that a US Detainee Review Board determined in 2010 that the applicant was not an enduring security threat, he remains at Bagram, which, as noted by the lower court, was said to be ‘notorious for human rights abuses’. In May 2010, the applicant’s cousin learned that he was detained at Bagram, and filed the writ of habeas corpus that led to the present judgment.

The ‘SHARES’ aspect of the case is that under international law, the UK maintain obligations vis-à-vis Yunus Rahmatullah, even after he was handed over the US.

In case of Rahmatullah not being treated in conformity with the Geneva Conventions, both under the Third (Article 12) and the Fourth (Article 45) Geneva Convention, the UK had the obligation to take effective measures to correct the situation or request his return.

At the time, the UK certainly was aware of this obligation. To ensure US willingness to protect persons transferred by the UK to the US, and their return if so requested, in 2003 a Memorandum of Understanding was concluded between the UK and the US Governments. This provided that the transfer of persons will be implemented in accordance with the Geneva Conventions, that detainees transferred by the UK to the US would be returned to the UK without delay upon request by the latter, and that the rendition to territories outside Iraq of transferred detainees ‘will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power.’

The combined effect of the Geneva Conventions and the MoU, thus, is that the UK retained obligations vis-à-vis Yunus Rahmatullah, even after he was handed over the US. The UK retained the obligation to secure his return and through this end any breach of his rights at the hands of the power to which he had been transferred. In other words, these provisions both form the basis of a possible shared responsibility of the UK and the US, and a procedural means for the UK to avoid breaching its own obligations.

Based on these provisions, Yunus Rahmatullah now applied for a writ of habeas corpus – in effect asking the UK to exercise its rights under the Geneva Conventions and the MoU. The Secretary of State argued that Yunus Rahmatullah was under the  control of the US Government and that the writ  should be rejected.

The Court found otherwise. It held that in the light of the Geneva Conventions and the MoU, there was ‘a substantial case for saying that the UK Government is under an international legal obligation to demand the return of the applicant, and the US Government is bound to accede to such a request.’ It found that the Government had provided insufficient evidence to conclude that such action could not be effective.

Interestingly, the Court found it unnecessary (and ‘inappropriate’) to address the question ‘whether, by not taking that course, it might, conceivably, be said that as a result of the combination of Section 1 of the 1957 Geneva Conventions Act and Article 130 of Geneva III, the UK Government could be aiding or abetting a “grave crime”’ (the Court here presumably referred to Geneva III). The question may indeed be premature, but the scenario is not entirely unrealistic and indeed may induce the negotiation of  agreements such as the MoU in question that enable states to exercise their responsibility vis-à-vis detained persons.

The case illustrated how states, through the Geneva Conventions and, as added security, the MoU, ex ante make sure that they retain the rights necessary to perform obligations incumbent on them. In addition it demonstrates how responsibility may continue, even after control is transferred.