The Shared Search for Missing Flight MH370

 Posted by: Irving Emma

With Malaysia Airlines Flight MH370 being officially declared lost at sea, and as the international search efforts hone in on the location of the aircraft, it is time to asses not only what this teaches us about aviation safety, but also the consequences of shared responsibility for international search and rescue operations.

Malaysia Airlines Flight MH370 went missing on the 8th March, losing communication around an hour after taking off from Kuala Lumpur on route to Beijing. The fact that the airplane was missing for a number of hours, and that its communication devices were mostly switched off, meant that from the outset it was unclear where it might have come down, if indeed it had come down at all. The initial suggestions were that the plane was off the coast of Vietnam, or further out in the China Sea. This was followed by information that it had made a sharp turn towards the Straight of Malacca, and thereafter might have followed either a broad northern or southern corridor. 

On the surface, the international search effort appeared to be a good example of different countries and agencies working together. The Malaysian authorities are purportedly coordinating the search effort, which involves a number of countries as well as agencies such as the FBI and Interpol. However, dig a little deeper and the cracks begin to emerge. Not only was the search effort hampered by persisting regional tensions and mistrust, which left some countries, China in particular, reluctant to share information, but the legal framework is ill-adapted to the shared responsibility context.

The duty to render assistance to persons in distress at sea is well established, both under customary law and under treaty law (Article 98 UNCLOS is one example). There are too, provisions on coordination between States in search and rescue operations. The International Convention for the Safety of Life at Sea 1974 (SOLAS Convention)[1] provides that governments must coordinate search and rescue services in their areas of responsibility, as well as in its own territorial sea.[2] The Convention demarcates which State has responsibility over which areas of water, including areas of the high seas. Similarly, the International Convention on Maritime Search and Rescue 1979 (SAR Convention) also links coordination responsibility with territory. These provisions therefore, are designed for situations where it is clear in which State’s area of responsibility the vessel or aircraft came down. Contrastingly, where an accident occurs in international waters, the International Civil Aviation Organisation (ICAO), which is part of the UN, has indicated that the State of the airline takes the lead. Both approaches however, still require knowledge of where the plane crashed, as it is this that determines the State with primary responsibility for coordinating the search. What this means for instances of shared responsibility, as with flight MH370, is that the legal framework for search and rescue can delay and hamper efforts by failing to identify a clear leader.

This need to link the crash site to a particular territorial area has also delayed efforts in setting up a formal investigation into the crash under the ICAO framework. The lack of formal powers for Malaysia under this framework means that it has no exclusive control over information, and no ability to centralise evidence from different sources, such as satellite images and eyewitness accounts. Rather, it must rely on the goodwill of other States involved, which has led to delays in the conveyance of information.

There has been then, a lack of a central point where all involved parties could come together and pool the information gathered by each. In the first stages of the search, it took a number of days for China to release satellite images of what they believed to be the plane. While these images turned out to not be related to the search, one might wonder whether a freer exchange of information might have reduced the time it took for the current state of affairs to be arrived at.

All the above being said, credit must be given where credit is due. Despite the massive search area, as well as the sheer number of entities involved, the search has been relatively well coordinated, and delays in finding the wreckage are now mainly due to poor weather. However, a clearer legal framework for situations involving multiple States, and for when the whereabouts of the plane is unclear, would surely contribute to more effective search and rescue operations.

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[1] This is the treaty to which all relevant States are parties.

[2] SOLAS, Chapter V, Regulation 7.

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.

Olympic Games turned Blame Games: Responsibility for Abuse of Migrant Workers in Sochi

 Posted by: Swerissen Isabelle

The 2014 Winter Olympics are in full swing. The games, which take place in the Black Sea coastal city of Sochi, should have been a prestige project of huge importance for Russia’s image at home and abroad. Instead, they are turning out to become the most criticized games ever. The controversies surrounding the Sochi games are many: flagrant discrimination against the gay community, forced evictions of homeowners to make way for Olympic venues and infrastructure, environmental destruction of the surrounding land and, of course, the staggering costs of the whole enterprise, totaling an estimated 50 billion dollars. An issue that has received far less media attention is the abuse of migrant workers on whose backs the Olympic sites are built.

The transformation of Sochi from a quiet subtropical resort into a winter sporting paradise required the influx of thousands of workers from Central Asia, the Caucasus and other places. Dozens of these migrant workers were subjected to a range of abuses and exploitation, or so Human Rights Watch (HRW) reports. It claims that “employers cheated workers out of wages, required them to work 12-hour shifts with few days off, and confiscated passport and work permits, apparently to coerce workers to remain in exploitative jobs”. Since a host of different actors was involved in construction activities in and around Sochi, this blog post inquires which of these actors can be held responsible for their part in violating the rights of migrant workers. Let the Blame Games begin!

 

Russia and Olympstroy

The first competitors in the Blames Games are Russia and its state corporation Olympstroy. Olympstroy was created in 2007 to realize the Program of Construction of Olympic venues and infrastructure. According to HRW, it has made “some important public commitments” regarding labor protection on sites falling within the Olympic program and requires contractors engaged in construction activities to respect labor rights. To that end, a department of inspection control was established in 2010 to cooperate with the regional labor inspectorate to monitor adherence to workers’ rights on Olympic sites. Unfortunately, the consistent patterns of abuse listed in the HRW report strongly suggest an inability and/or unwillingness to take all steps necessary to guarantee the rights of migrant workers.

Russia must ensure that its state company Olympstroy does not violate the rights of migrant workers. There are several legally binding instruments relating specifically to the protection of migrant workers, which can be found here, here, here and here. However, Russia has not signed any of these instruments nor can they be said to reflect customary international law. Many of these instruments are part of a comprehensive body of international labour law, developed under the auspices of the International Labour Organization. The latter has identified eight conventions as “fundamental”, containing rights which apply to all human beings at work, irrespective of nationality. Since Russia has ratified all eight of these conventions, it is responsible for violations of the basic protections contained therein.

There are several broader human rights standards that Russia is also obliged to observe. The International Covenant on Economic, Social and Cultural Rights, in Article 7, recognizes “the right of everyone to the enjoyment of just and favourable conditions at work”. In addition, the European Social Charter, which is the social rights instrument of the Council of Europe, also sets out in some detail rights concerning conditions at work. These instruments, which have both been ratified by Russia, are generally applicable to all human beings under Russia’s jurisdiction, without any distinction as to nationality. But as the situation in Sochi has demonstrated, migrant workers nonetheless see their human rights violated, triggering Russia’s responsibility.

 

Private companies

The second competitors are private companies, some of which are subcontractors of Olympstroy. A number of these companies have explicitly recognized to respect human rights, including migrant workers’ rights, or have adopted policies and procedures in that regard. Engeocom Association, the general contractor for the Central Olympic Stadium, has for example stated that it works “in strict adherence to the legislation of the Russian Federation and international legal acts … regulating  protection of migrant workers’ rights”. At the time of the construction, it claimed to undertake regular “inspections of the respect for rights of migrant workers”. Sadly, it was one of the few companies to act in this way, explaining the frequent occurrence of complaints about abuse.

Although Russia carries the primary responsibility to promote and protect the rights of migrant workers, the idea that private companies should also respect those rights and human rights in general is increasingly recognized. This is reflected in the elaboration of various soft law instruments, most notably the Guiding Principles on Business and Human Rights. The Guidelines, which implement the ‘Protect, Respect and Remedy’ Framework, were endorsed by the UN Human Rights Council in 2011 (with Russia interestingly acting as a core sponsor of the resolution). They specify that business enterprises of all sizes must exercise due diligence to identify, prevent, mitigate and account for the impact of their activities on human rights. In case of insufficient due diligence efforts, private entities may be responsible for failing to respect migrant workers’ rights.

The Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises are also relevant, since some of the companies engaged in construction activities were registered abroad (e.g. Botta Management Group in Switzerland, STRABAG in Austria). The Guidelines, which are recommendations jointly addressed by governments to multinational enterprises, call on such enterprises to “respect human rights, which means they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved”, including by carrying out “human rights due diligence”. Depending on the steps taken to prevent adverse impacts on the rights of migrant workers, multinational companies can possibly incur responsibility.

 

International Olympic Committee

The third and final competitor is the International Olympic Committee (IOC), which is “the supreme authority of the Olympic Movement”. As such, it includes promoting the Olympic ideal of “preservation of human dignity” among its goals. And yet, the IOC has not always seen a clear role for itself in addressing human rights issues in the context of or during Olympic Games. This changed after the controversial 2008 Summer Olympics in Beijing, when the IOC elaborated on its objective to preserve human dignity by including a commitment to intervene at the level of the host country’s National Olympic Committee in the event of serious abuse, such as “abuse of migrant workers at Olympic venue construction sites”. Alas, this was not enough to keep such abuses from happening again in Sochi.

The IOC, thanks to relentless efforts by HRW, was well informed of the abusive treatment of migrant workers. In fact, HRW first raised its concerns as early as 2008. The IOC responded by contacting the Sochi 2014 Organizing Committee for further information regarding the alleged abuses. It wasn’t until February 2014, after “an investigation of more than 500 companies”, that the IOC finally pressed the Russian authorities to investigate persistent claims of non-payment of wages to migrant workers. This is probably the most that can be expected in terms of IOC action on the matter. In any case, its legal status as an NGO and the fact that it was several layers removed from what happened on the ground, make it unlikely that the IOC itself will be held responsible for violations of the rights of migrant workers.

 

And the winner is…

In this blog post, I’ve discussed the various actors that may be held responsible for their role in violating the rights of migrant workers in the run-up to the Olympic Games in Sochi. The enormous scale of the games has made it clear that no actor can alone attempt to realize their organization. Russia, its state company Olympstroy, several subcontractors, many other businesses, and of course the IOC were all, to a greater or lesser extent, involved in construction activities and thus had a part in the labor rights´ violations that built Sochi – quite literally. If medals were awarded for the greatest blame in those violations, Russia would most likely be the winner. However, when it comes to migrants working in abusive and exploitative conditions, there really are no winners, only losers.