Category Archives: Slider

Written by Joseph Blocher & Mitu Gulati

Written by Lea Brilmayer

Written by Kathleen Claussen

Written by Adam H. Bradlow

International Law in a Transcivilizational World by ONUMA Yasuaki, Cambridge University Press, 2017.

Reviewed by Richard A. Falk

On Civilizational Perspective

Professor ONUMA Yasuaki, long considered among the most eminent of international law scholars of our time, has made a clarion call in recent years for what he calls “a transcivilizational approach” to the study and appreciation of international law. Onuma san[*] is judicious in balancing the contributions of international law to a more humane world order against its limitations in regulating behavior from the perspective of peace, sustainability, and equity or justice. What Onuma san has given us in the book under review is a magisterial treatise that provides the best available pedagogic foundation currently available for the study of international law as a discipline. Although clearly written, it is demanding because of its jurisprudential sophistication, historically grounded doctrinal assessments, and comprehensive treatment of the major legal issues on the current global policy agenda.

A few years ago, in an apparent effort to reinforce his Japanese identity, Onuma san wrote to friends and colleagues, requesting that they address him as “ONUMA (or Onuma) san” in accord with Japanese protocol, and even if closely associated, refrain from the Western habit of calling friends by their first names, that is, “Yasuaki.” I suspect that this outstanding scholarly contribution is also an outgrowth of such a maturing of Onuma san’s psycho-political consciousness, resting on an insistence that the future legitimacy and effectiveness of international law will depend on whether it can overcome what Onuma san calls its West-centric bias and orientation.

For many years I worked rather closely with another leading, now deceased, Japanese scholar, Yoshikazu Sakamoto, in a multi-civilizational project, the World Order Models Project.[1]  What makes this reference relevant is that Sakamoto’s preoccupation, alone among the dozen or so participating scholars from around the world representing a wide range of legal traditions and policy priorities, was focused on “identity” as the prime world order challenge of the late twentieth-century post-colonial world. It makes me wonder now whether there is something about Japanese cultural sensitivity in the period since the end of World War II that seeks to find a distinctive path into the “lifeworld” (Habermas) that is authentically faithful to the Japanese national circumstance, yet (i) maintains its intellectual and emotional distance from the United States/Europe and China and (ii) possesses the transnational tools and accompanying outlook needed to solve the challenges facing what Onuma san calls “humankind,” which seems an apparent move in the direction of feminist political correctness, scrapping the more familiar terminology of “mankind.”

Onuma san appears somewhat anguished, not only by a keen awareness of the inherent “impossibility” of achieving a genuine transcivilizatonal approach, given the dominance of Euro-American civilization in the evolution of international law and world order, but also by his own intellectual formation. In his words, “I am just one of many modern persons whose intellectual personality has been constructed by modern European civilization.” He adds, “I am a hybrid being, only part of which is an Asian or Japanese” (p. 7). In another passage Onuma san, almost in a confessional idiom writes, “We are all children of Grotius, Kant and Marx, and therefore ‘Europeans’ in the figurative sense” (p. 13).[2]

He does modify this assertion by the observation that “contemporary members of humankind are also children of Buddha, Confucius, Mohammad, and many other non-Western thinkers.” (p. 13). I really do have some doubts about this unsubstantiated claim, which would seem to suggest that we are all, to some extent, transcivilizational without even realizing it. As a sympathetic reader, I find these non-Western influences hard to find either in Onuma san’s treatment of international law or in my own thinking about comparable issues. To be sure, there is presently a disposition toward humane solutions of global problems and the encouragement of peaceful approaches to international disputes and conflict situations, but such views seem similarly rooted in Western humanist traditions of thought and not necessarily a reflection the influence of non-Western philosophical wisdom.

One feature of Onuma san’s approach that cuts across the grain of typical international law theorizing is his insistence on understanding present reality by adopting a historical approach to international legal doctrine and norms. Onuma san lets us know rather starkly that he has “learned far more from modern European works published from the sixteenth century to the early twentieth century than from post-World War II theories” (p. 13). He does not engage directly with contemporary international law theorizing in the course of his seven-hundred-plus page book, which is somewhat puzzling, since Onuma san’s perspective focuses on the impact of recent events, especially the collapse of European colonialism, followed by the international participation and economic growth of the non-West, especially of Asian countries.  Onuma san strongly believes that these altered material conditions in the character of international relations must make some fundamental adjustments to the nature of international law if it is to gain the global legitimacy required to be effective (p. 53).

Such a concern seems particularly timely in view of the helplessness of the international order to bring peace and stability to the Middle East or to overcome the legal nihilism of a new crop of political leaders, highlighted by the lawlessness of the Trump presidency.

Reflecting personally on such concerns, I realize that I am less hybrid than Onuma san, although I completely agree with his aspirational insistence on transcivilizational authenticity for both historical and practical reasons. I suspect that I am less hybrid because my Western embeddedness takes for granted questions of identity and perspective, which has led my critical energies to express themselves as an internal critic of Western civilization. I am sure that this non-self-consciousness, when it comes to civilizational identity, also follows from the way international law is studied in the United States and Europe, employing an ahistorical jurisprudence rooted in Western values and universalizing pretensions, as well as resting on similar conceptions of the international political context. Although I have been a critic of the way Western policymakers continue to manipulate international law to rationalize a belligerent foreign policy, I have not thought of these dangerous shortcomings as projections of civilizational values but rather as a matter of indulging an insatiable geopolitical appetite.[3]

Turning to substance, Onuma san’s treatment of international law is convincingly grounded in the sociopolitical realities of our time, making it hard to dissent from the lessons he draws. Onuma san places stress on the fact that ninety percent of the world’s peoples are non-Western, and that power relations are changing in ways that favor Asia and diminish the political and economic dominance of the West on a material level. Yet—and here is where Onuma san’s call for change in approach and content becomes most relevant—he anticipates (in a rather complex and somewhat confusing manner) that there will be a continued dominance of Western ideational influence, which he believes will persist deep into the twenty-first century, even in the likely event that China becomes the world’s largest economy. Whether Onuma’s prediction will hold in the event that Trump’s policy of relinquishing global leadership persists is quite uncertain.

Conceptualizing International Law

Onuma san is very clear about how he understands basic issues bearing on the nature and effectiveness of international law. He blames what he calls “domestic model thinking” for a frequent underestimation of the effectiveness and importance of international law to the maintenance of an orderly world. In effect, the weak institutionalization of authority and lack of enforcement capabilities overlook the degree to which State actors and a variety of non-State actors benefit from a stable normative environment that encourages compliance, reliability, and moderation. Onuma san makes the frequently overlooked point that violations of domestic law are common without drawing into question the reality of the legal order. We must learn to evaluate international law in relation to the specific functions it performs given its State-centric modes of operation.

Unlike domestic law, international law is less focused on regulating behavior than in a series of other undertakings that Onuma san enumerates as “prescriptive, adjudicative, justificatory, legitimating, communicative,  rule declaratory, and constructive (or constitutive)” (pp. 30, 585). These functions have more to do with the conduct of statecraft, civic activism, and policy planning than they do with governmental adherence to rules. In this vein, Onuma san is critical of the parallel tendency of international jurists to emphasize adjudication in their presentation of the field. This emphasis exaggerates the relevance that tribunals and judicial decisions have to the diverse modes by which international law fulfills its various functions.

Not surprisingly, Onuma san credits this more existentially-grounded appreciation of international law to his work outside the classroom and library, mentioning specifically his work as “a human rights activist and as an advisor to a member of the Japanese cabinet” (p. 8). In effect, Onuma san wants us to understand that it is in these non-judicial settings of advocacy and advising that the guidelines associated with international law often make their most significant contribution. What Onuma san proposes for the study of international law is a less academically oriented understanding and more of a practitioners’ viewpoint.

Again I am struck by the tensions between Onuma san’s erudition and reliance on political philosophy (especially, Hobbes, Kant, Machiavelli, Karl Schmitt, even Marx), as well as early modern juridical works (especially, Grotius), which stand in contrast to his experiential unbookish insistence on comprehending the scope and functioning of international law by contact with the doing rather than by parsing the nuances of doctrine as enunciated by the judges of the International Court of Justice or the elaborate pontifications of leading jurists. In a similar spirit, Onuma san downplays the constraining role of international law, particularly relating to the behavior of major States, insisting that if a legal system works well, disputes are generally avoided, and behavioral guidelines are invisibly respected as a matter of course or to satisfy national interests.

Another feature of Onuma san’s approach is the avoidance of idealism and legalism in his assessment of what to expect with respect to the links between international law and justice: “[T]he work of international law is in an irrational world where voices seeking justice are often ignored. It is sad to recognize such a reality, but one should not escape from it” (p. 28). In this spirit, which seems more in keeping with a variety of skeptical twentieth-century European thinkers than with a manifestation of non-Western thinking, Onuma san describes himself as “a pessimist in approach” whose advice is “to doubt everything, including one’s own sense, intuitions, premises, and understandings, based on his or her past study and experience”(pp. 28-29).[4]

There are many thoughtful reflections offered by Onuma san as to the development of international law over time—and particularly the emergence of the territorially-oriented European system of sovereign states and its globalization in the past several decades. This transformation of international law reflects both the success of the anti-colonial movement—the greatest pushback ever experienced by the West as a global system—and the essential acceptance of this European way of organizing international relations by the newly independent States of Asia and Africa. This erosion and extension of Euro-centricism has made international law “less imperialistic, racist, male-centric” and hence more globally legitimate (p. 85). At the same time, there is much more to be done in the ideational sphere to attain Onuma san’s transcivilizational goals. He is acutely aware that most writings on international law continue to be reflections predominantly of the Western mentality. This civilizational provincialism will not be overcome until “global discursive space” exhibits a greater responsiveness to the civilizational outlook of the new demographic and normative balances that are heavily weighted in favor of non-Western peoples.

Onuma san’s views here do encourage greater self-reflection and self-criticism by those of us who are representative of the West, and this is good. In some ironic sense, for this reason I find Onuma san’s treatise potentially more valuable for Western readers than for others. I suspect that the Asian scholarly community, especially after twenty years of anti-Western critiques asserting the relevance of “Asian values,” needs no coaching by Onuma san as to the desirability of a transcivilizational perspective.

I also find that some confusion surrounds the post-Cold geopolitical appropriation of human rights, narrowly understood in the West as civil and political rights and invoked as a pretext for military interventions in such non-Western countries as Afghanistan, Iraq, and Libya. In other words, in the post-colonial and post-Cold War world, the West has sought to retain its global role by claiming the high moral ground, creating an entitlement to override non-intervention and self-determination norms that are given priority by most non-Western states.

This development raises two relevant concerns. First, the West claims that the human rights discourse is transcivilizational in character, by its linkage of rights to the generic quality of being “human,” even though its formulations are beholden to Western liberalism. Secondly, the relevance of the continued Westernized dominance of force projection, a salient material reality largely under the aegis of the United States, seems not sufficiently appreciated by Onuma san in his long final chapter on the strenuous efforts of international law—as set forth most authoritatively in the UN Charter—to restrict recourse by States to force. It would appear that this central feature of the global security system raises some serious unanswered questions about the material decline of the West. We still live in a world where all debates and practice pertaining to intervention continue to be discussions about whether the West should intervene in the non-West, and never the reverse.[5]

A Concluding Assessment

There are thoughtful and analytically rigorous chapters on the main themes of international law, each of which warrants extensive comments beyond the limits of this review. In general, rather than a transcivilizational view, what I find more consistently present is an interpretation of the substance of international law from a global perspective that privileges the human interest, yet is restrained by Onuma san’s form of pessimistic realism that is sensitive to the primacy of a State-centric world order that rests on the interaction of egoistic national interests.

To illustrate the accelerating pace of history, Onuma san’s treatise was published before the world was gripped by a populist backlash in politics that has reversed prior democratizing trends. This has produced a surge of chauvinistic nationalisms and a series of elected leaders with autocratic governing styles in some of the world’s most influential countries, including Russia, India, Japan, Brazil, Turkey, and the United States. In addition, the worst nuclear crises in fifty years have threatened catastrophe on the Korean Peninsula as well as in the Middle East with respect to Iran. Beyond this, the Trump presidency has deprived the world of leadership with respect to major issues requiring global cooperation, such as climate change, global migration and treatment of refugees, and famine conditions in several countries. These issues call for what might be considered a meta-civilizational approach that addresses current global challenges on the basis of shared human interests. In my view, Onuma san provides the outlook and understanding that would encourage such enlightened behavior, but it is only presented as a sub-text and is perhaps overshadowed by the less substantiated claim that this treatise provides a transnationalized approach to international law traditions that still prevail under the ideational hegemony of the West despite its partial loss of materialist leverage due to the rise of the non-West.

Despite my quibbles here and there, this is a great book that deserves study by all those concerned about the past, present, and future of international law. Every serious student of the subject can hardly get along without meeting the various challenges posed and interpretations offered by Onuma san in the course of this all-encompassing treatise.

Onuma makes a stirring final appeal that is worth pondering: “International law is an indispensable means for people to realize the material and spiritual well-being of humanity. As such, people should constantly press national governments, international organizations, and other subjects to respect and abide by it” (p. 666). I find this kind of profession of faith in the importance of international law to be a compelling conclusion, including its unexplained yet resonant reference to “spiritual well-being.” This may be the most indispensable element of all!

[*] Professor ONUMA Yasuaki has requested that his name appear, in keeping with Japanese tradition, as ONUMA or Onuma san.

[1] See On the Creation of a Just World Order: Preferred Worlds for the 1990s (Saul H. Mendlovitz ed., 1975).

[2] Elsewhere, Onuma san suggests that his intellectual personality was also formed by Buddhist and Confucian thought operating on an “unconscious level” (p. 7). I am puzzled by what is meant in this regard with respect to the concrete pattern of opinions and judgments offered in the course of this most comprehensive study of international law.

[3] My own approach to these issues is most recently set forth in Richard Falk, Power Shift: On the New Global Order (2016).

[4] Perhaps, as a gesture to a transcivilizational approach, Onuma san concludes this line of thought with the following quotation of Confucius: “[I]t should be a pleasure to learn and review constantly and repeatedly” (p. 29). I read such advice as not an expression of pessimism or wisdom from the East but, on the contrary, the near-universal view that learning should be a satisfying lifelong activity that allows ideas and opinions to remain alive so long as they do not become dogma.

[5] This persistence of Western dominance in the security domain does not alter my belief that the unlearned lesson of the Vietnam War is the declining capacity of Western military superiority to control the political outcomes in non-Western contexts. For discussion, see Revisiting the Vietnam War: The Views and Interpretations of Richard Falk (Stefan Andersson ed., 2017).

YJIL Forum is delighted to present this Symposium featuring three responses to Richard Albert’s Constitutional Amendment and Dismemberment, recently published in Volume 43.1 of the Yale Journal of International Law. YJIL Forum is sincerely grateful to Judge Bernal, Professor Landau, and Professor Roznai for their thought-provoking responses.

On Constitutional Dismemberment
Written by Carlos Bernal

Rescuing the Unconstitutional Constitutional Amendment Doctrine:
A Reply to Richard Albert
Written by David Landau

Constitutional Amendment and “Fundamendment”:
A Response to Professor Richard Albert
Written by Yaniv Roznai

Written by Richard Albert

Written by Suren Gomtsian, Annemarie Balvert, Branislav Hock, and Oğuz Kirman

Written by Mariana Pargendler

Written by Alexandra Perloff-Giles

Written by Hyun-Soo Lim*

Approximately two years ago, the Foreign Ministers of South Korea and Japan announced that they had “final[ly] and irreversibl[y]” resolved the issue of Japanese wartime sexual slavery.[1] In doing so, they were attempting to address one of the most serious human rights issues in East Asia and a major source of tension between the two countries. But after events last month, the talk of finality is in doubt. In this post, I explain the weaknesses that plagued the agreement from the start, and why it has come close to unraveling.

A Resolution that Wasn’t

In December 2015, the South Korean and Japanese foreign ministers appeared at a joint press conference to deliver a stunning announcement: the two countries agreed to “final[ly] and irreversibl[y]” resolve the issue of Japanese wartime sexual slavery (“the Announcement”). The Announcement consisted of four main elements: (i) an apology from the Foreign Minister on behalf of Prime Minister Abe to the South Korean victims of Japanese military sexual slavery; (ii) Japan’s promise to deliver more than $8 million to a support fund for survivors; (iii) South Korea’s assurance that it will address Japan’s concern over the “girl statue” placed in front of the Japanese Embassy in Seoul in honor of the victims; and (iv) a mutual agreement to refrain from accusing or criticizing each other regarding the issue in the international community.

After decades of activism by survivors, human rights groups, and international human rights bodies, the Announcement came as a surprise. Prime Minister Shinzo Abe had consistently justified Japan’s war crimes during World War II— and, on occasion, even denied that the women were forced into sexual servitude. The deal was so unlikely that some have suggested that the Obama administration had pushed the deal heavily, as the United States is vested in a stable relationship between its two major allies in the Pacific.

But the Announcement faced immediate backlash. Many survivors refused the Japanese payment, rejecting the Announcement on both substantive and procedural grounds: the negotiations had been conducted entirely in secret, without any input from the survivors or their advocates, and failed to acknowledge Japan’s legal responsibility. The U.N. Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) echoed the victims’ call for an official apology recognizing State responsibility, as well as adequate reparations that “protect and uphold the victims’ right to truth, justice and reparation.”

The critical sentiment was so strong that all candidates, across the political spectrum, in the South Korean presidential election in May 2017 promised to either nullify or renegotiate the agreement. South Korean President Moon Jae-in delivered on this promise in December 2017, acknowledging the agreement’s inadequacy and ordering a ministerial review of the negotiations process.

On January 9, 2018, South Korean Foreign Minister Kang Kyung-hwa reported the findings. To Japan’s dismay, the minister declared that the 2015 announcement does not, in fact, represent “a genuine resolution” of the issue, and added that South Korea would designate its own $8.8 million fund to care for the survivors and would continue discussions on what to do with the payment from Japan. Nonetheless, South Korea admitted that an official deal had been made and said it would not attempt to renegotiate it.

In other words, the South Korean government fell short of scrapping the deal altogether, but essentially backtracked on the “finality” and “irreversibility” of the agreement which Japan had persistently demanded. Prime Minister Abe immediately balked at this nuanced change in stance, dismissing the idea that Japan would issue additional statements acknowledging the war crime. Thus, the current standing of the Announcement, and the state of the “Comfort Women” issue, is far from clear.

Legal Standing of the Agreement

Dubious from the start

The nature of the 2015 agreement was puzzling from its inception. It was not only publicized at, but took the form of, a joint press conference by South Korean and Japanese foreign ministers. Moreover, it consisted of each foreign minister reading a separate statement on behalf of each country and making promises only for what each country would do on its own. There was no joint statement.

Some in the South Korean legal establishment immediately pushed back. The country’s judiciary demanded that the administration clarify the agreement’s legal nature, to which the executive branch responded that there “does not appear to be a treaty.” And in response to a FOIA-like request from South Korean lawyers, the Ministry of Foreign Affairs confirmed that there was no written text accompanying the Announcement.

The oral nature of the Announcement, the absence of an accompanying text, and the fact that there were two separate statements—not explicitly acceded to by the other party—are particularly relevant under international law: they pose serious obstacles to understanding the Announcement as a binding bilateral agreement.

Under international law, a legally binding bilateral or multilateral instrument is often referred to as a “treaty,” a generic term that could refer to a variety of accords or conventions.[2] It is uncontroversial that whatever the parties call the agreement is irrelevant to judging whether an international engagement has an obligatory character. But this also means that not all communications promising or pledging something amount to a “treaty,” or an internationally enforceable agreement.[3]

The 1969 Vienna Convention on the Law of Treaties (VCLT), the first inter-State codification of the rules governing treaties at a universal level, explicitly excludes oral agreements from the scope and definition of a treaty.[4] Nevertheless, the VCLT also recognizes that oral agreements may possess legal force.[5] This is consistent with customary international law, under which international agreements need not take a particular form.

So what matters? Intention of the parties, rather than form, is the central question in determining whether a treaty has been concluded. At a minimum, a treaty requires the contracting parties to have “intended to create legal rights and duties in the engagement they have concluded.”[6] As such, some scholars have pointed to the Announcement’s lack of conspicuously obligatory terms (e.g. A shall, B must), along with the absence of any clause defining a breach or its consequences, to argue that the statements were more of a gentlemen’s handshake than a legally binding treaty.[7]

The lack of an underlying text signed by both parties raises substantial doubt as to whether the parties ever came to an agreement at all. Fatally, Professor Seung Ju Bang has pointed out that not only do the statements read at the press conference differ from the outlines of the agreement posted on the foreign ministry websites of the two countries, the outlines also differ from each other.[8] Put simply, there are small but material differences in the South Korean and Japanese versions of the agreement.

For instance, at the press conference, both countries stated that the issue’s “final and irreversible resolution” depends on “above-mentioned measures” being steadily or faithfully implemented. The South Korean outline later posted on the Ministry of Foreign Affairs’ website also describes the precondition that “the above-mentioned measures stated by the Government of Japan [be] faithfully implemented” (emphasis added). But the outline posted by the Japanese Foreign Ministry phrases the premise as “the Government will steadily implement the measures specified in (2) above” (emphasis added). In other words, the Japanese text, unlike the oral announcement at the press conference, limits the premise of the implementation to a one-time contribution to the fund for survivors, rather than the entire statement. Yet, even the Japanese outline has the South Korean foreign minister stating that refraining from criticizing each other in the international community will happen “on the premise that the Government of Japan will steadily implement the measures it announced” (emphasis added), and not limited to the fund contribution. Therefore, it is ambiguous whether the two countries actually agreed on the exact premise upon which their agreement rested to resolve the issue. Indeed, Abe’s Deputy Chief Cabinet Secretary told journalists that the two countries “did not discuss point by point” whether the removal of the girl statue was a premise of the deal’s implementation.

Admittedly, many treaties are plurilingual, some of which do not have a “master” text with clear authority. When the translations conflict, international courts compare relevant texts in order to ascertain the intention of the parties. However, the issue here extends far beyond issues of translation. This lack of a single “official” or “authentic” text (even aside from translations) leaves the Announcement particularly vulnerable to the charge that the parties lacked the necessary intention. There was no common set of remarks, but only separate statements, with each foreign minister carefully refraining from officially “signing onto” the other’s remarks.

Preventing this kind of confusion is precisely why the International Law Commission decided to limit treaties to a written form while drafting the VCLT. The Commission recognized that the interests of clarity and simplicity would be better preserved in a written form. It anticipated that progress in telecommunications would only lead to a proliferation of unwritten promises or pledges, causing controversy over the exact definition of a legally binding agreement.[9] The Restatement (Third) of the Foreign Relations Law also reflects this concern, stating that the terms of an oral agreement, while no less binding, “may not be readily susceptible of proof.”[10]

Given these concerns of ambiguity and vagueness of an oral announcement with no accompanying text, it is difficult to believe that South Korea and Japan seriously intended the Announcement to function as a treaty. Both sides were fully aware of how contentious and sensitive this issue has been for the past twenty-six years. They also knew from experience that the South Korean public and survivors had in the past rejected similar expressions of apology and pledges of funding when they fell short of official acknowledgement of legal responsibility.

Furthermore, there was no practical barrier to discussing or concluding a treaty in its conventional sense, if that is what the parties had actually wished to do. The only probable explanation for their haphazard attempt at resolution, then, is that the Announcement was not meant to be binding at all. President Park Geun-hye could not consent to an irreversible deal before gauging the public reaction; the Japanese government reportedly wished to finalize an official document, but the Park administration wanted to delay drafting a written form out of “concerns for public opinion trends.”

A material breach?                                                                          

 Even if we were to assume that the Announcement was meant to be an agreement (albeit not a treaty), it is likely that there has already been a breach. The purpose of the so-called agreement is clear: to achieve a common understanding that there has been an adequate apology and compensation, and that the two sides have reconciled and moved beyond the past atrocity of military sexual slavery. Borrowing language from the law on treaties, any “violation of a provision essential to the accomplishment of the object or purpose of the treaty”[11] is a material breach, and “entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.”[12]

From South Korea’s perspective, it did not take long for Japan to arguably violate the spirit, if not the letter, of the Announcement. A central tenet of the Announcement was Japan’s “most sincere apologies and remorse to all the women who underwent immeasurable and painful experiences . . . as comfort women” and its recognition of (albeit ambiguous) “responsibilities.” Yet Prime Minister Abe contradicted his apology within three weeks of the Announcement, assuring the Japanese Parliament that there was no evidence of forced mobilization of the women.

Moreover, the Announcement stated that the two governments would “refrain from accusing or criticizing each other regarding this issue in the international community.” The application to South Korean criticism of Japan regarding its war crimes record is clear. But the clause also applied to Japanese criticism of South Korea: indeed, before the agreement, political and social leaders in Japan had accused South Korea of fabricating the forced nature of military sexual slavery for political aims. Yet Foreign Minister Kishida reinvoked Japanese revisionism, stating that the “Comfort Women” should not be described as “sex slaves” since “the term does not match the facts.” And Deputy Foreign Minister Sugiyama repeated Abe’s whitewashing of the crime at a major international forum a month later, arguing that Japan knew of no documents supporting that the women were “forcefully recruited.” These statements seem awfully close to breaching a promise to “refrain from accusing or criticizing” South Korea since they challenge the latter’s demonstration of the forced nature of sexual slavery.

Japan’s argument for a breach is possibly even stronger. Japan has noted the South Korean government’s failure to remove the girl statue in front of its embassy in Seoul. In fact, this symbol has been given greater potency as new “girl statues” are being erected across the country and abroad by civil society. Even though the parties technically agreed only to “strive to solve [the ‘girl statue’ issue] in an appropriate manner,” Japan appears to have interpreted this promise to mean that the South Korean government would put pressure on the public to remove the statues. (By contrast, the South Korean government stressed that it does not have the right to order removal of something set up by civic groups.) Most importantly, despite her insistence that South Korea has not abrogated and will not attempt to renegotiate the deal, South Korean Foreign Minister Kang Kyung-hwa’s recent declaration that the 2015 agreement cannot be a genuine solution to the “Comfort Women” issue seems to represent an additional breach. Indeed, it contradicts the finality and irreversibility that were at the heart of the Japanese demands.

The Way Forward

In sum, South Korea’s nuanced change of stance regarding the “Comfort Women” agreement of December 2015 reflects the reality that the agreement had fatal flaws both legally and politically. The agreement’s failure to properly consult with the victims and to follow international guidelines on settlement of war crimes has severely—and in my view, rightfully—undermined it.

Regardless of Japan’s persistent denial of legal responsibility, the survivors’ persistence will sustain the issue’s importance in bilateral relations and the international community. Yet with only thirty-one “grandmother” survivors remaining in South Korea, time is running out on the opportunity for serious inclusion of victims’ voices in a Japanese-South Korean reconciliation project. If the two governments wish to resolve their differences in a sustainable manner, they should work together to heed the wishes of the survivors and the recommendations from the international human rights community—and they would do well to put their agreement into writing. A politically expedient compromise that papers over disagreements and lacks the blessing of survivors will simply not endure.

_______

*Yale Law School, J.D. Candidate, 2018

[1]The term “Comfort Women” refers to as many as 400,000 women who were deceived, trafficked, or forced into Japanese military sexual slavery in the 1930s and the Second World War. The vast majority of “Comfort Women” came from Korea (then under Japanese colonial rule), but the victims came from almost every country under Japanese influence in Southeast and Northeast Asia. The victims were held prisoners in army bases or prostitution houses throughout Asia, where they were repeatedly raped and abused daily, some for years. Most women were between the ages of eleven and twenty.

[2] Denys P. Myers, The Names and Scopes of Treaties, 51 Am. J. Int’l L. 574, 574-605 (1957).

[3] For instance, the International Court of Justice held that a letter sent by Nicaragua to the Organization of American States was a “political pledge” only, without legal effects, because it contained no concrete commitments. The concept of “agreement” therefore needed some sort of bilateral communication regarding a commitment. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 261 (June 27) (“However, the Court is unable to find anything in these documents, whether the resolution or the communication accompanied . . . from which it can be inferred that any legal undertaking was intended to exist.”)

[4] Vienna Convention on the Law of Treaties art. 2(1)(a), May 23, 1969, 1155 U.N.T.S. 331; 8 I.L.M. 67 [hereinafter VCLT].

[5] Id. art. 3(3) (“The fact that the present Convention does not apply . . . to international agreements not in written form … shall not affect: (a) the legal force of such agreements . . . .”).

[6] P.K. Menon, The Law of Treaties between States and International Organizations 10 (1992).

[7] See, e.g., Choung Jaemin, The Relationship between the Decision of the Constitutional Court of Korea and the Intergovernmental Agreement with respect to the “Comfort Women” Issue, 61 Korean J. Int’l L. 189, 213 (2016) (Choung, a district court judge in South Korea, does not believe that the Announcement has any legal force); Cho Shi-hyun, Legal Meaning of the 2015 Korea-Japan Agreement, 60 Democratic Legal Stud. 79, 97 (2016).

[8] Seung Ju Bang, Constitutionality of the Agreement between the Foreign Affairs Ministers of the Republic of Korea and Japan on the Issue of “Comfort Women” on 28 December 2015, 10 Vienna J. on Int’l Const. L. 400, 419-20 (2016).

[9] Int’l Law Comm’n, Commentary to art. 3 of the Vienna Convention on the Law of Treaties.

[10] Restatement (Third) of the Foreign Relations Law of the United States, § 301 cmt. b (1986) (suggesting that it would be difficult to prove the terms of the agreement where there is no text to ascertain the existence of specific terms).

[11] VCLT, supra note 4, art. 60(3)(b).

[12] Id. art. 60(1).

Written by Josh Macey, Paul Strauch, Mitzi Steiner & Nathaniel Zelinsky†

Just over a month ago, a Swedish court became the first court anywhere to convict an individual associated with the Assad regime for war crimes committed during the current Syrian conflict. The conviction highlights a stark reality. With peace negotiations stalled and Assad’s future seemingly secure, war crime prosecutions conducted abroad have become the only feasible means of holding the Assad regime accountable for war crimes committed during the Syrian civil war. Yet Russia’s Security Council veto makes an internationally-sanctioned war crime tribunal a pipe dream. As a result, domestic prosecutions in European courts remain the only immediately available mechanism for bringing perpetrators of the conflict to justice.

The Swedish conviction builds on a handful of prosecutions that have already taken place. Of the numerous obstacles to prosecuting Syrian soldiers for war crimes, one of the greatest challenges is marshalling the evidence necessary to sustain a conviction. The problem is not simply that the evidence does not exist. It is also that much of the available evidence remains siloed among numerous non-governmental organizations (NGOs) and domestic war crime prosecution offices across Europe. And, because so much of that evidence was disclosed in confidence, these groups are reluctant to share the information they do have. As a consequence, the process of assembling diffuse pieces of evidence can be prohibitively labor intensive for domestic European prosecution units, which are often under-resourced and under-staffed.

This Forum essay proposes a solution. By creating a secure, centralized database that allows war crimes evidence from disparate NGOs to be organized in one centralized electronic platform, prosecutors can more efficiently gather evidence of Syrian war crimes. As noted by a recent Human Rights Watch report, prosecutors’ offices in Germany, Sweden, and the Netherlands have already begun to work together. This essay suggests that a war crimes “Wiki” would more effectively allow countries to gather evidence of war crimes. This Wiki should facilitate interaction with NGOs, promote contributions by war crime victims, and enable individual jurisdictions to selectively redact information that they determine they are unable to share. Ultimately, the Wiki could help jumpstart new prosecutions by significantly reducing the up-front costs of gathering evidence. The project would thereby support long-term efforts to establish accountability for perpetrators of Syrian war crimes. And, by allowing individual prosecutorial offices to input information themselves, it would do so without exposing informants to retribution.

(1) The Problem: The Diffuse Holding of War Crimes Evidence

Numerous NGOs and individual actors have worked hard to find and preserve evidence of war crimes committed in Syria. The Caesar photos, smuggled out of the country by an ex-military police officer, have been referred to by Stephen Rapp, former U.S. Ambassador at Large for War Crimes, as “the best evidence that I’ve seen in my career.” Various NGOs, including the Commission for International Justice and Accountability (CIJA), the Syria Justice and Accountability Center (SJAC), REDRESS, and smaller local European organizations hold physical evidence such as regime documents and testimony from victims that can stand up in criminal court. Between these various evidence sources, Rapp believes that “when the day of justice arrives, we’ll have much better evidence than we’ve had anywhere since Nuremberg.”

Suspected Syrian war criminals have, and might in the future, enter European jurisdictions through the mass refugee flow in an attempt to seek asylum. Other war criminals could be European citizens themselves who traveled to Syria, or militants from Syria who have found another way to enter Europe. Equally, the refugee flow may prove critical in the accumulation of evidence, as some refugees may help provide eye-witness accounts of crimes and useful leads regarding alleged perpetrators. Given this, domestic prosecutions, undertaken through universal jurisdiction and domestic statutes become a promising means of ensuring accountability. According to Géraldine Mattioli-Zeltner, advocacy director of the Human Rights Watch’s International Justice Program, “national prosecutions . . . [are] the only kind of accountability we have.” Indeed, the aforementioned Syrian war crimes perpetrator recently prosecuted in Sweden was himself a refugee, who had arrived three years prior in Sweden.

European courts have a credible history of bringing foreign war criminals to justice. The successful convictions of high-level Rwandan genocidaires such as Pascal Simbikanga in France and the Vincent Ntezimana in Belgium illustrate that domestic prosecutions are feasible. This model could be duplicated to bring some measure of justice to Syria. In fact, many EU member States have already begun investigating Syrian war criminals. France is currently analyzing the Caesar photos as the basis for prosecutions of members of the Assad regime for crimes against humanity. Germany has had three successful prosecutions in the last two years, and the German police have launched investigations of Syrian refugees. The Dutch have acknowledged finding thirty suspected war criminals, including ten Syrians, among their refugee flow in 2015 alone. Sweden has successfully prosecuted two members of the Syrian opposition, and has arrested other suspects charged with committing international crimes in Syria.

However, the prosecution units of EU member States are struggling to piece together cases on Syrian war crimes. Interviews with several executives of data-gathering NGOs working in Syria revealed that evidence of Syrian war crimes is diffusely held among a broad set of domestic prosecution units, NGOs, and individuals and is therefore difficult to assemble. NGOs may be disinclined to share information, partly due to a need to protect their value in the eyes of donors. As noted by one NGO executive, “this is a very competitive market. The human rights documenting field is overcrowded.”[1] Further, the NGOs involved possess different organizational mandates, which limits the degree to which they naturally coordinate. Some NGOs focus on accountability for low-level officials, which requires information such as photos of bodies to prove the nature of a crime. Meanwhile, other NGOs such as CIJA focus on “linkage evidence,” which contextualizes crimes and ties particular atrocities to high-level officers and Assad himself. NGOs also gather data in different regions within Syria, forcing prosecutors to contact separate organizations for region-specific information. Equally, prosecution units may have difficulty locating evidence held by less established NGOs, with which they do not have a preexisting relationship. Specifically, smaller NGOs tend to share information only with the authorities from their own national jurisdictions.

The complex ways in which evidence of Syrian war crimes is stored present a significant obstacle to domestic prosecution offices. For these offices, interactions with NGOs is often ad hoc. It can be difficult to identify the information that the NGOs do possess. For example, the Netherlands currently pursues Syrian war crimes cases by looking to publically available sources of evidence, such as YouTube and Facebook; war crimes prosecutors gather information without knowing beforehand whether they will be able to establish jurisdiction over evidence of particular crimes. The process of sifting through the vast amount of available information to target specific cases is labor and resource intensive. As a result, prosecutors end up with more information than they can process and in some cases may be cultivating evidence that another unit has already collated. Since prosecutors do not necessarily know where to turn for appropriate evidence, many war crimes cases that could be brought with readily available evidence may go unprosecuted.

(2) The Solution: A War Crimes Wiki to Facilitate Domestic Prosecutions

A Wiki database would help to solve these evidentiary gaps. A database would serve to collate and organize the enormous amount of evidence that already exists in the hands of domestic prosecution units, NGOs, and Syrian victims. Once established, a Wiki could help prosecutors looking to build a case by allowing them to search through these various data holdings. At the earliest stages of case development, a Wiki database could help prosecutors identify where to devote their limited resources and enhance their ability to bring a greater number of successful prosecutions. As Nerma Jelacic, Deputy Director of CIJA, pointed out, “before prosecutors select a case it could be useful for them to understand what existing evidence might already be in the possession of NGOs.”[2] According to Wieger Veldhuis, a prosecutor in the international crimes division of the Dutch national public prosecution service, “a database that we could search in to see if there is relevant data or if there are witnesses that can talk about the things we are investigating . . . would be really helpful.”[3] By reducing the time required to identify where evidence might be held, a centralized and searchable database could help prosecutors identify winnable cases. According to a recent HRW interview, Germany has already initiated the idea of a database to help overcome these challenges.

A war crimes Wiki could also help prosecutors identify the kind of evidence needed to link crimes to specific perpetrators. Imagine, for instance, that a prosecutor wishes to bring a case against a Syrian helicopter pilot for dropping barrel bombs. The prosecutor would need to link the pilot to a specific act of bombing and also prove that victims died; over time, the prosecutor could also construct a larger narrative of how barrel bombing has led to the wholesale slaughter of civilians throughout the war. At present, at various stages in the prosecution, a prosecutor may need to personally liaise with different NGOs and prosecution offices to identify which organization possesses useful information for the case.

With a war crimes Wiki, the prosecutor of the hypothetical pilot could use targeted database searches to identify whether these various forms of evidence are held by NGOs or fellow prosecution units and to locate the best version of that evidence available. This would expedite the MLA process between prosecution offices, since units would know what evidence to request, as opposed to needing to prod peer units to determine whether they have relevant information. In addition, prosecution units could indicate whether they currently have an investigation into a particular individual underway, which could help aid peer countries in determining whether to pursue a case. The database could thus help both at the preliminary stages of an investigation, when prosecutors are determining whether to bring a case forward, and at latter stages, once prosecutors are determining the scope of an ongoing prosecution.

To ensure the success of a Wiki, and to overcome the inclination of NGOs to house evidence separately, it would be critical that the Wiki be coordinated by a trusted and centralized party. Already, the war crimes units of European States are engaging in meaningful collaboration about ongoing and potential trials through Eurojust, a judicial cooperation unit initiated by the European Council. In particular, within Eurojust, the Genocide Network serves as a contact point for collaboration by European national authorities investigating and prosecuting genocide, crimes against humanity, and war crimes. At Genocide Network meetings, prosecutors share not only views and strategies, but also have the opportunity to engage in a “who has what” analysis regarding where various pieces of evidence sit. The Wiki will embolden and hasten this process. Thus, Eurojust or EUROPOL, which coordinates international investigations across the EU, could serve as the institutional home for the Wiki and provide monitoring functions regarding information posted to the database.

Beyond deciding who would operate the platform, NGOs and prosecution units must delineate the terms of a Wiki, including how evidence should be tagged, who would have secure access, and who could contribute information. For example, evidence could be tagged by cross-referencing the location of an incident, the nature of the crime, the names of perpetrators, or other key categories. To be sure, as a practical matter, any database of this kind must be designed to ensure compliance with domestic and European privacy laws and norms. European privacy laws are stringent, restricting what information both governmental and non-governmental affairs can share. Further, some NGOs refrain from sharing evidence with countries that cooperate with the Syrian intelligence apparatus or who use evidence to exclude asylum-seekers generally. As a result, an NGO might be comfortable sharing evidence with a Swedish prosecution unit, but not with its German counterpart. A well-constructed database would limit which countries could search a particular NGO’s information and under what circumstances.

Further, the Wiki need not provide prosecutors with immediate access to all available evidence. Prosecutorial units will still retain ultimate say over whether information in their exclusive possession should be made available. For example, NGOs could decide to post summaries of the information they have available on particular individuals or atrocities, rather than post all of their evidence, to protect the identity of witnesses. As Ambassador Rapp suggested in an interview with the authors, the use of “abstracts” to summarize evidence could help overcome much of the confidentiality concerns. Certainly some evidence may be too sensitive to describe even in summary form. For this more sensitive material, the database could inform prosecutors of the NGO holding the evidence without providing specifics that could potentially implicate informants and at-risk civilians. In effect, rather than act as an encyclopedia of Syrian war crimes, the Wiki could serve as an index to help domestic prosecutors find the sources most useful to them. Prosecutors would then be able to contact NGOs or offices with specific questions about discrete issues, places, regions, or perpetrators.

Conclusion

Domestic courts in countries offering asylum to Syrian refugees remain the most practical forum for bringing some measure of justice to victims of Syrian war crimes. The success of these prosecutions depends on the ability of prosecutors to gather evidence held by NGOs, individual actors, and domestic prosecution units. A war crimes Wiki would provide officials with a credible platform through which to organize and collect evidence, thus lowering the costs of trial preparation and prosecution. Moreover, once consolidated, evidence could beget more evidence, as prosecutors are able to flip low-level officers and witnesses are brought into court. In addition, members of the Assad regime, fearful of being held accountable, might volunteer testimony in exchange for leniency. As noted by CIJA’s founder Bill Wiley, “justice for core international crimes in Syria is coming, and it’s coming a lot sooner than I think most people maybe realize.” Thus, while the international prosecution of high-level Syrian war crime perpetrators may remain a far-off goal, a Wiki could help domestic courts facilitate and realize accountability in the Syrian conflict today.

† The authors would like to thank Professor Harold Koh and Ambassador Stephen Rapp for invaluable guidance regarding the idea of a War Crime Wiki. We are also grateful to the NGO representatives, war crimes experts, and European prosecutors we interviewed over the course of our research.

[1] From interview conducted by authors.

[2] Id.

[3] Id.

The Child in International Refugee Law by Jason M. Pobjoy, Cambridge University Press, 2017.

Reviewed by Marina Sharpe*

Human rights give legal expression to our most foundational shared precepts of justice. It is therefore always surprising to reflect on the relative recentness of their entry into the corpus of international law. The International Covenant on Civil and Political Rights (ICCPR)[1] and the International Covenant on Economic, Social and Cultural Rights[2] only entered into force in the latter half of the 1970s, more than two decades after the 1951 Convention relating to the Status of Refugees (“1951 Refugee Convention”) became effective.[3] This gap of over twenty years explains in large part why the scholarly project to join up human rights with refugee law remains ongoing. It would even be fair to say that prior to the publication of Jason Pobjoy’s The Child in International Refugee Law,[4] the effort was in its infancy. Indeed, Hathaway’s treatise articulating refugee rights as derived from the 1951 Refugee Convention and the ICCPR was only published in 2005,[5] and McAdam’s book on the ambit of human rights-based non-refoulement came out as recently as 2007.[6] As the first legal treatise to focus on the relationship between human rights and refugee law in the context of a specific class of individuals—the works of Hathaway and McAdam focus on refugees or persons in need of international protection generally—Pobjoy’s contribution has moved the literature on the relationship between human rights and refugee law into its next phase of development, and not a moment too soon.

There are currently more refugees in the world than at any time since World War II, and a large proportion of them are children. All children have special needs, as recognized by international law in the Convention on the Rights of the Child (CRC).[7] Because they lack the protection of their State of origin and, in some cases, of a parent or guardian, refugee children are particularly vulnerable. Yet until the publication of The Child in International Refugee Law, the toolbox that lawyers and other advocates, scholars, and judges could draw upon in this context was nearly empty. In addition to contributing to scholarship on the relationship between human rights and refugee law, The Child in International Refugee Law’s analysis of how the CRC should inform the interpretation and application of the 1951 Refugee Convention’s refugee definition makes a major contribution to this toolbox.

According to Pobjoy, children face two principal challenges in applying for refugee status. He terms the first their “invisibility”: the failure of legal systems or decision-makers to consider children as refugees in their own right. Invisibility affects both unaccompanied or separated as well as accompanied children, though the former can now often apply for refugee status. An accompanied child, however, usually cannot submit her own claim; her status is often based entirely on that of her parent or guardian, regardless of any independent basis of refugee status. The second challenge faced by refugee children is “incorrect assessment”: the failure of decision-makers, when they do hear children’s claims, to consider the applicant’s childhood. Immaturity, for example, may affect the applicant’s ability to describe the risk she would face if returned.

Pobjoy suggests that there are three principal ways in which the CRC can contribute to remedying these two challenges. First, in Chapter 2, Pobjoy explores the CRC as a source of procedural guarantees not otherwise available, which may address the challenge of “invisibility.” Specifically, he argues that the CRC’s Article 12 protection of the child’s right to express her views freely in all matters affecting her and to be heard in judicial and administrative proceedings affecting her may be violated if a child is removed without having had her claim independently examined. He further argues that the CRC’s Article 9 duty of non-separation may be violated in asymmetrical jurisdictions that allow parents to extend status to children but do not allow the opposite, because this asymmetry may make parents reluctant to advance their child’s claim separately.

In the next three chapters, Pobjoy explores the second principal role of the CRC: as an aid in interpreting the 1951 Refugee Convention’s Article 1(A)(2) refugee definition, in which context the CRC may address the challenge of “incorrect assessment.” Chapter 3 focuses on the refugee definition’s well-founded fear requirement. Pobjoy critiques the bipartite understanding of well-founded fear that requires the claimant to establish both objective risk and subjective trepidation, because a child will often be unable to identify or articulate a prospective risk of harm. This argument made in the specific context of the refugee status of children is nonetheless consistent with cutting-edge refugee scholarship.

Chapter 4 continues to address how the CRC should inform the interpretation of the 1951 Refugee Convention’s definition of refugee, here in relation to the identification of persecutory harm. The definition’s “being persecuted” element is now widely understood in line with Hathaway’s conceptualization: “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”[8] Pobjoy explains how, in the claims of children, such human rights violations should be understood with reference to the CRC, which identifies child-specific forms of harm and strengthens particular rights when the rights-holder is a minor. Here again, Pobjoy’s presentation is based on a sophisticated understanding of contemporary scholarship around the “being persecuted” element of the refugee definition, which his analysis marshals and even advances. Chapter 4 also covers four child-specific forms of persecution in depth: domestic child abuse, the denial of the right to education, family separation, and psychological forms of harm.

Chapter 5 further expands on how the 1951 Refugee Convention’s Article 1(A)(2) refugee definition should be interpreted with reference to the CRC in claims involving children. It focuses on the definition’s nexus criterion—the requirement that persecution be “for reasons of race, religion, nationality, membership of a particular social group or political opinion”—with emphasis on the grounds most relevant to children: the last two plus religion. Again, Pobjoy relates general debates to his focal area, in this case whether the applicant must demonstrate that the perpetrator intended to persecute her for a 1951 Refugee Convention ground, or whether it is sufficient to establish a causal link between a Convention ground and the applicant’s situation. Pobjoy argues that this latter “predicament approach” is more appropriate for children than the former intention-oriented approach, because a child’s heightened vulnerability is often the reason why she is susceptible to persecution.

Pobjoy identifies in Chapter 6 the third way in which the CRC can contribute to the protection of refugee children: as an independent source of status, beyond that available under the 1951 Refugee Convention. Pobjoy builds on the foundation laid by McAdam,[9] developing the argument that Articles 6 (right to life, survival, and development) and 37 (right to liberty and freedom from torture and cruel, inhuman, or degrading treatment) of the CRC, and perhaps even Article 38 (prohibition of underage military recruitment), give rise to child-centric complementary protection from refoulement. He then goes on to address Article 3 (the best interest principle), which is increasingly precluding the removal of children who do not qualify for refugee status under the 1951 Refugee Convention. Pobjoy reviews State practice, academic commentary, and soft law in this regard, finding that Article 3 is increasingly being invoked to protect children—who do not qualify for refugee status but who would nevertheless face harm if removed—from refoulement.

In addition to these issue-specific contributions, the book makes at least two major overarching contributions: one to the international refugee law literature, and the other to public international law more generally. First, while it is not the only work to consider children in the refugee status determination (RSD) process and the role of the CRC in this context,[10] The Child in International Refugee Law is the first book-length study to focus on the role of the CRC in the refugee claims of children generally, as opposed to unaccompanied children specifically. This lays the foundation for further work on the post-recognition standards of treatment owed to all child refugees. This important avenue for future research would be responsive to Hathaway’s call to “build upon” his analysis, grounded in the 1951 Refugee Convention and the two international human rights covenants, to “define the entitlements of sub-groups of the refugee population entitled to claim additional protections.”[11]

The right to education, particularly secondary education, illustrates the importance of such further research. Both the 1951 Refugee Convention and the CRC protect the right of all children to public primary education.[12] Regarding public secondary education, the 1951 Refugee Convention requires only that States parties accord refugee children treatment no less favorable than that accorded to aliens generally in the same circumstances.[13] The CRC, by contrast, requires States parties to make general and vocational secondary education available and accessible to every child.[14] Refugee children thus have greater rights to secondary education under the CRC than they do under the 1951 Refugee Convention, a critical point as refugee children are at particular risk of missing out on secondary school.

The book’s public international law significance relates to treaty interpretation. Article 31(3)(c) of the Vienna Convention on the Law of Treaties mandates the consideration of any “relevant rules of international law applicable in the relations between the parties” in the process of treaty interpretation.[15] This exhortation reflects the principle of systemic integration, which requires that treaties be interpreted against the background of other international legal principles. Article 31(3)(c) is, however, far from clear. It raises three questions: the meaning of “rules of international law,” which rules are “relevant,” and who “the parties” are. Pobjoy parses these issues, ultimately establishing the permissibility of interpreting the 1951 Refugee Convention in light of the CRC. An emerging authority on the law of treaties agrees with this conclusion.[16] In establishing the CRC as “relevant” to the interpretation of the 1951 Refugee Convention and in producing doctrine that proceeds in this regard, Pobjoy has effectively provided a case study that advances understanding of systemic integration, a challenging public international law issue.[17]

Throughout the book, Pobjoy’s analysis is grounded in national jurisprudence from the developed English-speaking—and hence common law—world (principally Australia, Canada, New Zealand, the U.K., and the U.S.). While Pobjoy cites an impressive range of such case law, language barriers presumably prevented him from considering civil law jurisprudence. A useful avenue for future research would be for multilingual lawyers to address the same issues considering non-Anglophone or civil law jurisprudence. Future research might also analyze case law from major refugee hosting states in the developing world, where most of the world’s refugees reside. Such additions would make the commonalities that emerge across municipal jurisdictions more readily generalizable to the international plane.

The Child in International Refugee Law is written concisely, but with a view to reader-friendliness. Its central argument—that the CRC should inform refugee status decisions relating to children—develops along a logical arc and is supported by meticulous and wide-ranging research, drawing on historical and contemporary scholarship, Anglophone jurisprudence, treaty law, and soft international law. The argument is also grounded in a firm understanding of relevant refugee and public international law debates, and as a result the book represents a major contribution not only to the critical topic of refugee children, but also to the broader issues of the relationship between international human rights and refugee law, as well as to the issue of the systemic integration of international law. Every personal bookshelf and institutional library with a refugee section, a human rights section, or a public international law section should include it.

* BA, LLB, BCL (McGill); MSc (LSE); DPhil (Oxon); Visiting Fellow, Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University.

[1] International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171.

[2] International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 993 U.N.T.S. 3.

[3] Convention Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 150 [hereinafter 1951 Refugee Convention].

[4] Jason M. Pobjoy, The Child in International Refugee Law (2017).

[5] James C. Hathaway, The Rights of Refugees under International Law (2005).

[6] Jane McAdam, Complementary Protection in International Refugee Law (2007).

[7] Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

[8] James C. Hathaway, The Law of Refugee Status 104–05 (1991).

[9] See Pobjoy, supra note 4, ch. 5; see also Jane McAdam, Seeking Asylum under the Convention on the Rights of the Child: A case for Complementary Protection, 14 Int’l J. Child. Rts. 251 (2006).

[10] See, e.g., Jacqueline Bhabha, Seeking Asylum Alone: Treatment of Separated and Trafficked Children in Need of Refugee Protection, 42 Int’l Migration 141 (2004); Mary Crock, Seeking Asylum Alone: The Treatment of Unaccompanied and Separated Children Seeking Refugee Protection in Australia, 42 Austl. Child. Rts. News 1 (2006); Jacqueline Bhabha, Mary Crock, Nadine Finch & Susan Schmidt, Seeking Asylum Alone—A Comparative Study: Unaccompanied and Separated Children and Refugee Protection in Australia, the U.K., and the U.S. (2007).

[11] Hathaway, supra note 5, at 8.

[12] 1951 Refugee Convention, supra note 3, art. 22(1), 189 U.N.T.S. at 168; Convention on the Rights of the Child, supra note 5, art. 28(1)(a), 1577 U.N.T.S. at 53.

[13] 1951 Refugee Convention, supra note 3, art. 22(2), 189 U.N.T.S. at 168. Regarding contingencies such as this one in the 1951 Refugee Convention, see Marina Sharpe, The 1951 Refugee Convention’s Contingent Rights Framework and Article 26 of the ICCPR: A Fundamental Incompatibility?, 30 Refuge 5 (2014).

[14] Convention on the Rights of the Child, supra note 5, art. 28(1)(b), 1577 U.N.T.S. at 53.

[15] Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.

[16] Eirik Bjorge, Treaty Interpretation and The Child in International Refugee Law, Eur. J. Int’l L. Blog (Aug. 30, 2017), https://www.ejiltalk.org/treaty-interpretation-and-the-child-in-international-refugee-law.

[17] See, e.g., Campbell McLachlan, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 Int’l & Comp. L.Q. 279 (2005).

Written by Roncevert Ganan Almond.

Just a few weeks ago, tech titan Elon Musk announced his lofty intention to send the first colonists to Mars by 2024.  The precise estimate may be ambitious, but technological advances and commercial interest will soon transform human exploration and use of space, triggering a host of novel legal and political questions.  If we are to answer these questions successfully and peacefully, scholars, practitioners, and policymakers need to begin thinking about them now.

This will be no small task, particularly because much of the legal framework governing space is decades old, developed during a different era.  Indeed, this year marks the 50^th anniversary of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“Outer Space Treaty”).  Despite limitations set forth in the Outer Space Treaty, leading space-faring countries such as the United States are increasingly approaching space as a common domain for strategic competition.

Even as technology can propel us beyond the boundaries of our earthly domain, we cannot escape our human nature and the attendant consequences.  However, the international community can learn from and improve upon our history by anticipating the coming legal and geopolitical debates in outer space.  Below, I argue that recent experience in the South China Sea dispute may be instructive in anticipating the challenges ahead.  In particular, I argue that the dispute suggests five key lessons about domains beyond national boundaries—lessons that are directly applicable to outer space.

1) Increased Proprietary Claims, Facilitated by Technological Advancement

First, we can expect the propagation of proprietary claims in shared domains, despite (and to the detriment of) legal norms to the contrary.  These claims will be driven by the exercise of the freedoms of use and exploration, as well as the increased utilization of shared domains, as enabled by technological advancement.

The high seas freedoms, like navigation, and the prohibition on sovereign appropriation of the high seas, have long been recognized as customary international law.  But these norms have been subject to contestation.  During the Western age of exploration, Grotius, Freitas, Selden and others debated whether high seas freedoms were fundamental, or whether the increased capacity of States to exert control at sea permitted sovereignty claims over “territory” traditionally thought to be beyond national jurisdiction. These debates were made possible by advanced technology—the ocean-fairing ships, the chronometer and the cannon—that allowed States to exert dominance and control in the high seas.

The United Nations Convention on the Law of the Sea (UNCLOS) represents a historic attempt to resolve this tension between technologically-enabled use of the seas and attempts to preserve the “common heritage of mankind”; the South China Sea dispute reflects that tension’s endurance.  After decades of negotiation, UNCLOS, with its 1994 supplement, was adopted as a “constitution for the oceans” in order to “settle all issues relating to the law of the sea,” including in relation to sovereign rights beyond national boundaries.

On January 22, 2013, the Philippines commenced arbitration proceedings under Annex VII of UNCLOS to challenge China’s territorial claims, based on historic title, to nearly the entirety of the South China Sea.  After lengthy deliberations, on July 12, 2016, the arbitral tribunal ruled that China’s so-called “nine-dash line” claim was contrary to the Convention, which “superseded any historic rights, or other sovereign rights or jurisdiction in excess of the limits imposed therein” (para. 278).  In effect, the tribunal upheld the bargain on the allocation of rights to maritime areas negotiated by States Parties to UNCLOS—which include China and the Philippines (but not the United States, despite the strategic benefits of U.S. treaty ratification).

From a substantive legal perspective, this aspect of the arbitral award was an easy one.  The UNCLOS regime codifies the progressive development of the law of the sea, provides a highly-detailed structure of maritime entitlements, and reflects an accepted—if tenuous—political consensus, notwithstanding China’s exceptional claims in the South China Sea.

By contrast, it is difficult to imagine a comparably straightforward legal answer based on the Outer Space Treaty.  Its terms—which similarly seek to enable and constrain human activity in a shared domain—are sparse, dated, and increasingly contested.  The Outer Space Treaty, for instance, broadly establishes the freedoms of exploration and use of outer space, while banning any claims of national appropriation in outer space, including with regard to the Moon and other celestial bodies.  But these general “principles” were drafted relatively quickly, within a decade of Sputnik-1’s launch, at the beginning of the Cold War’s space race.  Overall, the Treaty’s principles lack the qualities leading to “compliance pull” as described by the legal scholar Thomas Franck, particularly with respect to determinacy (clarity in terms), adherence (interpretation and implementation through secondary rules), and symbolic validation (a deep-rooted, history-conferring status).

The indeterminate guidelines of the Outer Space Treaty will likely prove insufficient to address evolving proprietary claims driven by emerging “new space” technology.  The persistence of China’s claims, despite comparatively clear legal principles in the context of UNCLOS, is instructive.  We can confidently predict that the freedoms of exploration and use will encroach upon legal norms designed to preserve outer space as a global commons, such as the prohibition on national appropriation.

2) Novel Legal Claims Arising From Legal Uncertainty

Second, resolving legal uncertainty arising from new and competing claims in shared domains will require the fresh negotiation of defined sovereign and economic rights.  This deliberation must begin sooner rather than later.

Among other findings, the tribunal in the South China Sea arbitration determined that China unlawfully interfered with the enjoyment and exercise of the Philippines’ sovereign rights with respect to the living (fishing) and non-living (extractive) resources of its exclusive economic zone (EEZ) and continental shelf, as defined under UNCLOS.  These maritime zones reflect a compromise between maritime powers and coastal States, as noted by the tribunal in the South China Sea arbitration.

Specifically, UNCLOS’ maritime zones resulted from efforts to mitigate the “unregulated propagation of claims to maritime rights and jurisdiction” and “the prospect that technological developments would rapidly enable the greater exploitation of the resources of the seabed, which would fall to those States most capable of claiming them” (para. 249).  The legal certainty and rights in the traditional high seas gained by coastal States came with conditions.  Functional jurisdiction in the EEZ, for example, is subject to limitations, such as respect for the freedoms of navigation and overflight of other States.

As the South China Sea dispute indicates, these issues are not completely resolved, in part because maritime disputes are linked to land disputes.  Maritime zones are based on the principle of “la terre domine la mer” (the land dominates the sea), as noted by the International Court of Justice (ICJ) in the North Sea Continental Shelf Cases.  For example, the EEZ extends no farther than two-hundred nautical miles from the coastal State’s baseline from which the breadth of the territorial sea (twelve nautical miles) is measured, so controlling the land means controlling the rights at sea.  But what “land” counts?

During the South China Sea arbitration, the tribunal concluded that none of the Spratly Islands were “fully-entitled islands” generating maritime zones like EEZs.  As such, the Philippines’ EEZ did not overlap with a competing Chinese EEZ in the South China Sea.  In reaching this decision, the tribunal performed a technical analysis of whether certain Chinese-claimed maritime features were naturally formed “islands” or mere “rocks” unable to sustain “human habitation” or “economic life.”  In effect, Chinese-claimed “land” in the South China Sea could not trump Philippine maritime entitlements under UNCLOS.

One can easily envision similar definitional debates with regard to human activity on celestial bodies like asteroids.  But what will be the terms of this debate?  If the land dominates the sea in maritime law, how will the Earth dominate space in space law?  In other words, what methodology will we employ to address the unregulated propagation of claims to outer space and its resources?  These questions are no longer theoretical.

In November 2015, for example, President Barack Obama signed into law the Space Resource Exploration and Utilization Act, which created new property “rights” for U.S. citizens to space and asteroid resources.  Planetary Resources, the asteroid mining venture funded by Silicon Valley giants like Google’s Larry Page, has called the U.S. law the “single greatest recognition of property rights in history.”  During his tenure, President Obama actually put America first in an unprecedented manner.  Other States are following this example.  In July, Luxembourg enacted an asteroid mining law that builds upon the U.S. example.  At the recently-convened International Astronautical Congress (IAC), ispace Europe, S.A., based in Luxembourg, described its goal of establishing exclusive “safety zones” on celestial bodies to ensure a return on investment.  Traditional energy powers like Saudi Arabia and the United Arab Emirates are also considering asteroid mining laws.

These novel legal claims seek to maneuver through a perceived loophole in the Outer Space Treaty’s ban on national appropriation, which would only prohibit sovereign “occupation” of celestial bodies, as opposed to private “extraction” of their resources.  Based on the South China Sea dispute and debate over maritime zones, it is doubtful that such legal schemes will reflect the ultimate political consensus on exploitation of space resources.  This conclusion is even more evident in light of the potential wealth and strategic benefits at stake.   

3) Militarization and Enforcement

Third, States will rely on military power in order to enforce contested claims and competing rights in shared domains.  A related corollary is that security interests soon follow economic interests.

One of the key issues in the South China Sea arbitration was China’s extensive island-building activities.  The tribunal’s analysis of China’s land reclamation and fortification efforts was revealing.  In order to retain jurisdiction, the tribunal relied on Beijing’s assertions that its actions were for civilian purposes.  Given the potential dual-use nature of aircraft runways and other installations, this was a credible, if thin, line of reasoning.  At the same time, the tribunal took Beijing to task for escalating construction activities in response to the proceedings and for permanently altering features within the Philippines’ EEZ.  It was evident to all that in the face of a legal challenge, China was willing to resort to the threat of force to impose its claims.

In return, the United States has stepped up the pace and depth of its military maneuvers to challenge excessive maritime claims in the South China Sea.  These Freedom of Navigation operations (FONOPs) implement Washington’s long-standing policy of exercising and asserting its freedom of navigation and overflight rights in international waters and airspace, respectively.  For instance, on May 24, 2017, the U.S. Navy destroyer USS Dewey conducted a FONOP within twelve nautical miles of Chinese-controlled Mischief Reef in the Spratly Islands.  This exercise was clearly “non-innocent”—involving military maneuvers—and effectively enforced the arbitral tribunal’s finding that the aptly-named Mischief Reef was a “low-tide elevation” and, therefore, was not entitled to a twelve nautical mile territorial sea under UNCLOS.

In both instances, China and the United States are seeking to protect their respective economic interests in the region.  For Beijing, the military build-up serves as an armed defense of Chinese fishing interests and the prospective extraction of oil and natural gas from the sea bed below.  For Washington, force projection in the South China Sea ensures that the world’s most important trading lane remains open for business.  This all occurs in the face of clear terms in UNCLOS reserving maritime domains for peaceful purposes.

The Outer Space Treaty similarly attempts to reserve outer space for “exclusively” peaceful purposes.  The Treaty prohibits weapons of mass destruction, weapons testing, military installations, or military maneuvers in outer space.  But if the economic interests of great powers are challenged—like in the instance of competing rights for space resources—such rules will fall by the wayside.  And given the dual-use nature of space technology, the militarization of space may occur under the color of civilian purposes.

The United States is increasingly approaching outer space as a new sphere for strategic and economic competition.  Earlier this year, President Donald Trump issued an executive order reviving the National Space Council, which had become dormant following the end of the Cold War.  On October 5, 2017, U.S. Vice President Mike Pence convened a meeting of the Council and called for space to be included within U.S. warfare doctrine in light of the growing space threats from China and Russia.  This doctrine will include economic interests: one of the four pillars of a new strategic framework for space warfare outlined by National Security Advisor H.R. McMaster is ensuring that U.S. commercial space companies remain preeminent.  As part of the 2018 National Defense Authorization Act, Congress is debating a proposal to establish a new uniformed service—the “Space Corps”—fully dedicated to addressing emerging threats to U.S. national security in space.  U.S. Secretary of the Air Force Heather Wilson observed that space will no longer be a benign environment; soon it will be a “common domain for human endeavor” and U.S. strategy must respond accordingly.

4) Environmental Impact

Fourth, the expanded use and exploitation of shared domains—and actions to enforce these interests—unavoidably lead to environmental impact.  Norms of State responsibility and due regard are insufficient to prevent this outcome.

The South China Sea arbitration found that China violated its obligation to protect and preserve the marine environment under UNCLOS.  As the tribunal noted, the Convention’s obligations apply to “all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it” (para. 940).  The tribunal found that China’s land reclamation and construction of artificial islands, installations, and structures in the South China Sea had “caused severe, irreparable harm to the coral reef ecosystem” (para. 1203).

For example, the tribunal observed that prior to Chinese actions, Fiery Cross Reef was mostly submerged in its natural state, with a rock exposed at high tide.  By November 2015, however, approximately 2,740,000 square meters of land had been created at Fiery Cross Reef, with sand and rock dredged from the seabed, covering virtually the entire platform of the southwestern reef flat.  This vast complex includes a three-kilometer runway, a 630,000-square-meter harbor, and related installations to support China’s enforcement of its claims in the Spratly Islands.

Moreover, the tribunal found that China knowingly tolerated, protected, and failed to prevent Chinese flagged vessels from “harvesting endangered species on a significant scale” in instances that were “severely destructive of the coral reef ecosystem” (para. 1203)  In holding China responsible, the tribunal cited the Fisheries Advisory Opinion, issued by the International Tribunal for the Law of the Sea, which clarified that the flag State must ensure its fishing vessels are not involved in activities which will undermine a flag State’s environmental responsibilities under the Convention.

The Outer Space Treaty sets forth standards of due regard and State responsibility for environmental harm, including with respect to continuing supervision of non-governmental actors, similar to those of UNCLOS.  If the South China Sea dispute offers any clues, these norms are unlikely to prevent adverse changes to the environment of outer space and celestial bodies.  Thus, practical tasks for developing space law will involve determining what environmental changes we are willing to tolerate in outer space and identifying the scale to measure the related damages and liability.  The human footprint has already reached the Moon and will soon expand to near-Earth objects.

5) Peaceful Dispute Resolution

Fifth, formal dispute resolution mechanisms are important in order to institutionalize conflicts involving shared domains, but we should expect challenges of jurisdiction, competency, and efficacy.  Ultimately, the peaceful resolution of disputes beyond national boundaries is unlikely without political will.

China refused to participate in the South China Sea arbitration and vigorously challenged—through the publication of a “Position Paper” in December 2014 and in other official statements—the jurisdiction of the tribunal.  The tribunal rejected Beijing’s arguments that the dispute was actually about territorial sovereignty or the delimitation of overlapping maritime zones.  Such subjects would have made the matter beyond the concern of UNCLOS or excluded it from dispute resolution due to a declaration filed by China under the Convention.

As a technical matter of treaty interpretation and construction, the tribunal was correct that the arbitration was not about sovereignty.  However, as I have noted, the tribunal’s supposedly technical conclusions on the status of Chinese-claimed features in the South China Sea seriously damaged China’s sovereignty claims.  As such, Chinese objections, as a political protest against the competency of the arbitral tribunal to practically resolve the dispute, were prophetic.  And yet, these legal setbacks did little to actually restrain China.  Within days following the Philippines’ unilateral instigation of the arbitration, China initiated its large-scale land reclamation and construction program.

In response, the tribunal ruled that China’s “intensified construction” of artificial islands during the course of its proceedings had “unequivocally aggravated the disputes between the Parties” in violation of international legal norms of good faith, non-aggravation, and peaceful dispute resolution (para. 1177).  Having “permanently destroyed evidence on the natural status of features” China had “undermined the integrity” of the arbitral proceedings (para. 1179).  Nevertheless, the tribunal was forced to acknowledge that Beijing’s actions had “created a fait accompli” in portions of the South China Sea, even if in violation of international law (para. 1177).  The UNCLOS tribunal process, therefore, helped to clarify and institutionalize political conflict—even as it ultimately failed to resolve that conflict in accordance with law.

Without significant changes, we can expect even less institutionalization of space disputes.  The Outer Space Treaty still leaves ample room for further development of dispute resolution procedures.  The Treaty does not include any formal dispute resolution mechanism but instead provides for discretionary “consultations.”  Parties are expressly required by the Treaty to act in accordance with the United Nations Charter, which mandates peaceful dispute resolution under Article 2(3).  The UN Charter also provides an array of options, such as negotiation, mediation, conciliation, arbitration, and judicial settlement, with the potential for Security Council intervention or referral to the ICJ.

The institutionalization of territorial and proprietary disputes will be important for identifying key interests, defining legal issues, developing technical expertise, and providing an international spotlight to hold parties accountable.  However, as the South China Sea arbitration shows, formal dispute resolution mechanisms and legal norms of restraint may prove powerless when great powers resort to unilateral action in pursuit of their own national interests.

In short, political will is the critical ingredient.  If we remain clear-eyed about human nature—even amidst the stars—we may yet apply the lessons of history, both recent and decades-old.  That history, and the five principles identified above, will prove crucial in building a durable international legal consensus to govern rapid developments in space.

Roncevert Ganan Almond is a partner at The Wicks Group, based in Washington, D.C.  He has advised the U.S.-China Economic and Security Review Commission and counseled government authorities in Asia, Europe, the Middle East, Africa, and Latin America on issues of international law.  He serves on the Editorial Board of The Air & Space Lawyer and as a contributor to The Diplomat.  This article is based on his remarks and presentation at the 60^th International Institute of Space Law Colloquium on the Law of Outer Space at the 68^th International Astronautical Congress in Adelaide, Australia.  The views expressed here are strictly his own.