Caleb Edward Chan is a Research Fellow at the International Finance Corporation of the World Bank Group. He holds an LL.M. in International Legal Studies from Georgetown University Law Center (Distinction and Dean’s List)

International organisations (IOs) enjoy immunity from execution. The doctrine – commonly found in IOs’ constituent instruments and formulated in absolute or near absolute terms – protects the assets of IOs from measures of constraint (see de Brabandere, 2018), meaning that IOs cannot be ordered to make payment out of their bank accounts (or any asset) in satisfaction of a court order.

In Supreme v. Supreme Headquarters Allied Powers Europe (SHAPE) (here, para. 3.11), the Dutch Court of Appeal ‘s-Hertogenbosch (CA or Court) opined that NATO’s military headquarters (SHAPE and JFCB) have absolute immunity from execution under its constituent instrument – the Paris Protocol (see here, Art. XI §2), and the narrowly defined treaty-based exceptions to immunity were inapplicable. Nonetheless, the Court went onto pronounce that IO immunity from execution is subject to derogation under customary international law (CIL).

This blog post analyses how the CA arrived at this view. I argue that the CA’s view is misplaced because, firstly, it erroneously applied a case law that merely addressed state immunity from execution (i.e., Morning Star v Gabon); secondly, it gave effect to self-declared CIL and failed to apply lex specialis when the relevant treaty is unambiguous; and thirdly, it conflated the teleological distinctions between state immunity and IO immunity.

While the CA’s view was erroneous, it was not challenged in cassation but was instead treated as an assumed fact (see here, para.1.17 and here, para. 3.4.3). Thus, as a matter of principle, future courts grappling with this issue should unreservedly reject the CA’s approach and reinstate the position that IO immunity from execution is exclusively treaty-based and non-derogable by CIL.

Supreme v. SHAPE: The Facts

In Supreme v. SHAPE, three fuel supply companies – Supreme Site Services GmbH, Supreme Fuels GmbH & Co KG and Supreme Fuels Trading Tze (together the “Plaintiffs”) – sued NATO’s military headquarters, SHAPE and JFCB, (collectively NATO) for alleged non-payment in the amount of $217 million (Claimed Amount) under the terms of the fuel supply contracts into which NATO entered to logistically support the military operation in Afghanistan. In 2015, the plaintiffs instituted proceedings before the Limburg District Court to recover the Claimed Amount from NATO, requesting a garnishee order on the balance of an escrow account that was owned and controlled by NATO.

A preliminary relief judge initially granted leave in favour of the plaintiffs. NATO later impugned the garnishee order on the basis of its immunity from execution. The Limburg District Court held in first instance that the execution of the garnishee order would violate NATO’s immunity from execution. The plaintiffs appealed.

Immunity from Execution before the Dutch Court of Appeal

While the Court confirmed that NATO have near absolute immunity from execution under the relevant constituent instrument, it went on to pronounce that there are exceptions (the Exceptions) to immunity from execution under CIL. These are when:

• the property is specifically in use or intended for use by the IO for other than government non-commercial purposes;
• the IO has expressly agreed to the taking of enforcement measures; and
• the property has been designated or reserved for the satisfaction of the claim in question (here, para. 3.12 – 3.14).

It should be noted that ultimately the CA did not deny NATO’s immunity based on the self-declared Exceptions because it found itself unable to apply them to the facts at hand. Nonetheless, the invention of a restrictive theory was faulty for the reasons below:

1. The CA erroneously applied Morning Star

In suggesting that there were CIL exceptions to NATO’s immunity, the CA applied Morning Star v. Gabon – a case it referred to in parentheses without elaborating on the case’s relevance. Morning Star is, however, a wrong reference point because it merely dealt with state immunity from execution.

In Morning Star, the Dutch Supreme Court (SC) for the first time invented and applied the Exceptions, but only to delimit state immunity from execution. In that case, the question was whether the immunity enjoyed by the Gabonese Republic would prevent enforcement of a garnishee order levied against its assets in the Netherlands. Crucially, because there was (and still is) no existing treaty governing the immunity of state from execution, the SC conducted a CIL identification exercise and formulated the exceptions for state immunity modelling verbatim on Article 19 of the 2004 United Nations Convention on the Jurisdictional Immunity of States and Their Property (the UN Convention). While the SC’s approach – declaring a treaty not entered into force to be CIL – is in itself unconventional, the point to note is that the SC in Morning Star only developed a restrictive theory for state immunity from execution, not IO immunity from execution.

Thus, when the CA applied Morning Star, it in essence created a restrictive theory for IO immunity by reference to principles developed in the context of restrictive state immunity. Notably, the Exceptions are worded exactly in the same way as Article 19 of the UN Convention, only with the references to “States” replaced by “IOs”.

This is an erroneous application of Morning Star because the case merely decided on state immunity from execution, not IO immunity from execution.

2.     CA applied self-declared CIL in place of lex specialis treaty law

The CA made an outright declaration that the Exceptions to IO immunity are founded on CIL  and did not follow the ‘rulebook’ approach recommended by the International Law Commission (ILS) (see here p.119) to ascertain this position (which would have involved examining state practice and opinio juris). The sole reference to Morning Star suggests that the Court based its view entirely on a misapplication of Morning Star (see argument 1 above).

In any case, even if the Exceptions represent the current state of CIL, the CA should not have relied on it to derogate NATO’s immunity because the treaty position is unambiguous. As a matter of principle, CIL as general law should not repeal specific law (lex specialis) such as treaty when the two sources are in conflict with one another (unless the specific law in question is a jus cogens violation in which case the treaty is void). In this case, the Paris Protocol provides clearly that NATO enjoys near absolute immunity from execution. The language leaves no room for CIL to apply in a manner consistent with the treaty provision. In any event, the Dutch Constitution (here, Art. 94) stipulates that treaties (provided that they are self-executing) have priority over inconsistent domestic laws within the Dutch legal system. Thus, the Court should have simply applied the treaty; the inquiry into CIL was unnecessary.

• Development of IO immunity should not be linked to that of state immunity

By linking the development of IO immunity to state immunity, the Court conflated the teleological distinctions between the two. For IOs, immunity is a means to an end to ensure that they can discharge their functions independently and free of unwarranted state interference (see e.g., de Brabandere, 2018). This conceptual foundation is acutely different to the raison d’être of state immunity, which is historically extended on the basis of reciprocity and customs.

Additionally, IOs – as service agencies – are no power equal to states. For this reason, the ILC has previously recommended (here p.136) that IOs (referring particularly to the United Nations) be accorded with higher and more extensive protection than states, including absolute or near absolute immunity from execution. This was at the time seen necessary for IOs to perform their functions – a position still enshrined in many IOs’ constituent instruments to-date.  

Indeed, public perception surrounding immunity has changed since the ILC studied the issue (e.g., the perceived lack of accountability see Blokker, 2014). Yet, States’ commitment to preserving the immunity of IOs has not faltered. On at least two occasions, the Dutch government actively blocked the enforcement of court judgments rendered against IOs in order to preserve their immunity from execution (see here and here). 

What’s more, it needs to be recognised that IO immunity is less amenable to ‘judicial law-making’ than state immunity. This is due to the fact that IO immunity is mostly governed by treaties, in which case States ought to be the primary driver for deciding when and if the scope of immunity should be amended as per the relevant treaty amendment procedures. Treaty amendment is the preferred way to engender a restrictive theory for IOs (if at all), because the process necessitates robust discussions amongst State delegates about whether derogation ought to be pursued and if so, how may it be formulated to be consistent with the functionalist foundation of IO immunity. For this reason, the CA’s invention prejudged the outcome of these important conversations and effected substantive change to a treaty without adequate processes. 

Concluding Remarks

This blog post highlighted the way in which the CA interpreted the immunity of NATO’s military headquarters in Supreme v. SHAPE. It argued that the Court’s reasoning – which introduced a restrictive theory for IO immunity from execution by reference to restrictive state immunity – was founded on faulty premises. Despite its flaws, the CA’s approach was not challenged in cassation and was referred to as an assumed fact.

In practice, the Court’s invention is unlikely to change how the Netherlands implements its treaty obligations vis-à-vis IOs given the existing power to block any measure that infringes upon immunity (see Art 3a of the Bailiffs Act). Nonetheless, as a matter of principle, future courts should reject the erroneous reasoning and reinstate the position that IO immunity from execution is exclusively treaty-based and non-derogable by CIL. It is only through such a rejection that we can ensure that the wrong approach will not be sanctioned as state practice or influence the development of CIL going forward.

None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.

Theme: International Law and Technology

Deadline: 15th December 2021.

Public international law has been redefined by the advancement of technology in the 21^st Century in every way. Whether it’s trade, armed conflict, space exploration, or human rights, international law has had to grapple with and embrace technological advancements. Jus Cogens: The International Law Blog happily invites authors to send in their submissions for our new series in which we focus on the broadly interpreted topic of International Law and Technology. We particularly encourage submissions from early-career scholars, undergraduate and graduate students, and policymakers from the Global South.

Examples of topics that can be discussed include:

• The Role of Autonomous Weapons under International Humanitarian Law
• The Law of Cyber Operations
• The Transformation of International Trade and Economic Regulation
• The Challenges and Perspectives of Artificial Intelligence under International Law
• Human Rights in the Digital Age
• The New Frontiers of Space Law
• The Use of Computational Methods in International Legal Research
• Recent Developments in International Law and Technology

Submissions should be no longer than 1500 words and contain hyperlinked sources. Submissions can be sent to juscogensblog@gmail.com.

We are also delighted to announce that the authors of the top two submissions in response to this Call will receive an invitation to discuss their research on a special episode of the Jus Cogens International Law Podcast.

The deadline for this call-for-submissions is 15 December 2021. For our full guidelines, please check our submission guidelines.

Happy Writing!

by Ahmed Farooq with assistance from Zaina Awan

Ahmed Farooq is a graduate of the University of London, Harvard Law School and the University of Cambridge. He is an incoming law clerk at the Kenai Superior Court and the Federal District Court of Massachusetts. Zaina Awan is a history major at NYU Abu Dhabi.

Introduction – Genocide Anniversaries

Described as a site where ‘…scenes from hell [were] written on the darkest pages of human history’, Srebrenica is known to be host to one of the most horrific events to have occurred in Europe, second perhaps only to the calamities of World War II. In the late 20^th century, while the conflict in Bosnia and Herzegovina raged on, Srebrenica—an enclave where thousands of Bosnian Muslims had fled to for shelter—was declared a UN safe zone. A few months down the line, approximately 8000 Muslim men and boys were killed there by Serb forces.

The early days of July 2021 marked the 25^th Anniversary of the Srebrenica genocide. It was an occasion when individuals from all quadrants of the world expressed solidarity with the survivors of the genocide and the families of those who had fallen victim to the massacre. The Srebrenica genocide is not alone, however, in its day of remembrance. Almost every major man-machinated cataclysm marks a solemn annual occasion for commemoration, be it the Holocaust, the genocides in Rwanda and Armenia, or the killing fields in Cambodia. One may wonder though, why are genocides memorialized in such a manner? Below, I explain this culture through two fundamental reasons.

Genocide in Memory

When the victims of mass atrocities find that their plight is at the risk of minimization or worse, denial, genocide documentation and memorialization become extremely effective counters. 

There are times when genocide victim groups face obstacles in having their struggles recognized. Rather esoterically, the sheer horror of mass atrocities creates in people a desire to either feign ignorance of or to deny atrocities altogether. For example, Professor Lasson, in his article on Holocaust denial, recounted:

Inmates at concentration camps testified that they were frequently taunted by their captors: “And even if some proof should remain and some of you survive, people will say that the events you describe are too monstrous to be believed; they will say that they are the exaggerations of Allied propaganda and will believe us, who will deny everything, and not you.”

In essence, the devastatingly evil nature of mass atrocities is a potential undoing of genocidal historiography. The incomprehensible scope and gravity of the crime often garners reactions of incredulity—genocides either didn’t take place, or they didn’t transpire on the scale they are professed to. 

The passage of time also naturally constitutes a hindrance to genocide memory. People who were not direct or indirect witnesses to mass atrocities as they occurred are forced to rely on knowledge garnered through the predominant political climate of their generation. And the fact is, genocides are largely topical subjects, so they flutter in and out of the public domain. When in 1971, forces from Pakistan launched a military operation against the Bengali population in the country’s geographically segregated eastern section to suppress independence movements, the atrocities that ensued received intense coverage for about a year, following which global interest in the conflict largely declined. Consequentially, genocide memory became a major part of the political identity of Bangladesh. The world was quick to forget the events of 1971; Bangladesh couldn’t. 

The Ultimate Crime   

The factor that is perhaps the most powerful driving force behind calls of genocide recognition has to do with the nature of the crime of genocide itself. Genocide is the ultimate crime – the crime of crimes – from both a purely legal denomination and at a general level of appreciation. This hierarchical classification influences the actions and demands of victim groups, as we shall discuss below.

Legally, the supremacy of genocide over other international crimes has been averred to be scholars and jurists almost from the very inception of the Genocide Convention.  Lemkin, the scholar responsible for coining the neologism ‘genocide’, himself advocated that “genocide must be treated as the most heinous of all crimes. It is the crime of crimes, one that not only shocks our conscience but affects deeply the best interests of mankind.” Numerous other scholars and international lawyers have echoed the same proposition (Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 1997; Yearbook of the International Law Commission 1994, vol. I, 214, para. 21). William Schabas (2009), in Genocide in International Law: The Crimes of Crimes, for example, contends that in the hierarchy of crimes, genocide “belongs at the apex of the pyramid.” Benjamin Whitaker, in the Report on the Prevention and Punishment of Genocide, referred to genocide as the “ultimate crime.” Furthermore, in Volume I of the 1994 Yearbook of the International Law Commission, genocide was called the “worst of all crimes.” In the same vein, towards the end of the twentieth century, the International Criminal Tribunals for Rwanda and for the former Yugoslavia too, in various judgements, crystallized genocide’s status as a crime greater than all others (Prosecutor v. Akayesu, Case No. ICTR-96-4-T; Prosecutor v. Akayesu, Case No. ICTR-96-4-T; Prosecutor v. Blaskic, Case No. IT-95-14-T).

Even in common parlance, genocide is understood to be the greatest evil that humans can muster. The power of the word has, like no other before it, occupied the minds of not only lawyers and judges, scholars and jurists, but also gripped those of historians, diplomats and heads of states, all the way down to the common citizen. Genocide, in every sense, is a global phenomenon. It is a term unquestionably characterized by a disposition that uniquely transcends the bounds of the law. Despite being a juridical term that only entered our vocabulary relatively recently, it has evolved to wield immense influence, incite fierce emotion, serve as a vessel for closure, a portal for the recognition of group strife, and at times, has proven to be a pretext for murder, inaction, and war (Yearbook of International Law Commission Vol I. 214 41).

So why is the label of a genocide so vital to the recognition of the suffering of mass atrocity victims, and what does it have to do with genocide being the crime of crimes? Genocide is, in itself, a form of recognition for a victim group. In a very real, very practical sense, colouring an egregious mass atrocity by the legal imposition of a political crime—war crimes, crimes against humanity, or genocide—situates conflicts in a unique historical narrative. It allows for an epilogue, one that rests on the unification of entire peoples based initially on “a moral consensus that the past was evil” and then eventually on political consensus that the past was evil.^” The ritual structure of a trial separates the past from the present morally, politically, and legally (Michael Humphrey, ‘The Individualising and Universaling Discourse of Law: Victims in Truth Commissions and Trials’ in Victims of International Crimes: An Interdisciplinary Discourse, 2013). It allows for closure and paves the path for growth. 

That, however, is only half the story, because while the legal imposition of any given international crime shares some commonalities with a finding of genocide, the situation isn’t entirely equivalent. Referring to an atrocity as genocide is to allocate to a peoples’ plight the classification of persecution of the absolute extreme—it is, after all, the ultimate crime. With genocide having taken on a life of its own in the popular mind, the recognition of it would be the recognition of the zenith of all suffering. A denial of genocide would be a denial of the tribulations of entire peoples; a finding of anything other than genocide, be it war crimes or crimes against humanity, has the tendency of making victims of almost all massacres feel cheated, as though their travail was not at par with the standard of the ultimate evil. For this reason, victim groups tend to equilibrate on a call for genocide recognition, and take active steps towards memorialization, even if that comes with the exclusion of other international crimes.

Conclusion

The memorialization of genocides is as logical as it is important. Genocide anniversaries serve to reignite rightful anger at the evils of the past while simultaneously offering a method for victims to find a degree of resolution and closure. Their documentative value is considerable as well—annual commemorations of past atrocities keep events that otherwise risk historical degeneration alive in the present political climate. They are reminders of the evil that humans have faced. They are reminders of the evil that humans perpetrated. They are reminders of the evil that humans failed to prevent. 

By Anh Nguyen

[Anh Nguyen is a law graduate of the University of Vienna and trainee in international dispute resolution at Knoetzl Haugeneder Netal, currently completing her judicial clerkship in the Vienna Circuit. She tweets at @mikanguyen27. Her previous article on Jus Cogens can be found here]

On 10th May the High Court of Évry dismissed Ms. Tran To Nga’s lawsuit against Agent Orange manufacturers, amongst them Dow Chemicals and Monsanto. Ms. Tran sought compensation for the severe cross-generational illnesses and diseases, and environmental destruction caused by Agent Orange, which the defendants produced for the US military as part Operation Ranch Head. From a modern perspective, this would likely constitute an act of “ecocide”, which was previously discussed on this blog here. The High Court of Évry reasoned that the manufacturers were acting “on orders” of the US military, whose “wartime conduct” was part of its “politique de défense”, for which the US enjoys sovereign immunity before French courts. Ms. Tran has announced her intention to appeal the court’s jurisdictional dismissal. 

This blog post will examine the French court’s implicit finding that private actors benefit from a “sovereign immunity shield”, as well as the tension between domestic courts’ “judicial abdication” in relation to states’ “political acts” and the imperative of access to justice and victim redress for jus cogens violations. 

The Applicability of the UN Convention on Jurisdictional Immunities of States and Their Property 

While the full text of the High Court of Évry’s decision has not been made public, the president of the court issued a communiqué, which reveals the court based its decision on Art 5 of the UN Convention on Jurisdictional Immunities of States and Their Property (2004) (hereinafter UNCJIS). While France is party to the UNCJIS, the Convention has yet to enter into force. Commentators have noted that the UNCJIS does not cover “such issues as State immunity in respect of human rights violations, the notion of jus cogens and its possible effect on State immunity”, since they were and still are subject of intense debate and controversy. Readers will recall that the ICJ held in the Jurisdictional Immunities case that the question of state immunity is “a question entirely separate from whether the international responsibility of that State is engaged and whether it has an obligation to make reparation” (para. 100).

Furthermore, upon finalisation of the UNCJIS’s draft Chairman of the Ad Hoc Committee, Gerhard Hafner noted that military activities were not covered by the Convention, which “did not affect the question of diplomatic immunities or situations involving armed conflicts”. Such situations would instead continue to be governed by customary international law. Given that the French court found  the matter to concern “wartime conduct”, express reference to Art 5 UNCJIS seems to be on shaky ground. 

Sovereign Immunity of Private Actors Acting on Orders Related to Wartime Conduct 

Notwithstanding the inapplicability of the UNCJIS as a legal instrument, various articles in the convention are codification of rules of customary international law on sovereign immunity, Art 5 being one of such rules, setting out that a state enjoys immunity from the jurisdiction of the courts of another state. The notion of “state” in Art 5 UNCJIS refers to “all types or categories of entities and individuals so identified which may benefit from the protection of State immunity” (Cf 1991 Commentaries to the Draft Articles for UNCJIS). 

Sovereign immunity is one of the areas of international law whose case law has largely been developed by domestic courts. To determine which entities befit from a sovereign immunity shield courts have generally relied on the rules of attribution according to the ILC Articles of State Responsibility (“ARISWA”). In relation to private actors, two modes of attribution are most common: (1) the entity is entrusted with public authority (Art 5 ARISWA) or (2)

 the entity’s conduct carried out upon direction of or control by the State (Art 8 ARISWA). In the latter case courts must further distinguish conduct falling under acta jure imperii and acta jure gestionis, which is not covered by immunity. 

The French Cour de cassation affirmed in the National Iranian Gas Corporation case that foreign states, as well as bodies acting under their instructions or on their behalf, enjoyed jurisdictional immunity for acts of sovereign power (“puissance public”). The Cour de cassation ruled in Gouvernement espagnol v. Casaux that absolute immunity was granted for the purchase of boots for the Spanish army. In Hanukiew v . Ministere de l’Afghanistan the Cour de cassation again affirmed this position and granted immunity for claims arising out of a contract concluded between the Government of Afghanistan and a private company for the supply of arms, thus qualifying the sales of arms as a “puissance public”. Thus, it is not surprising that the High Court of Évry ruled similarly in the present case, since the defendants manufactured Agent Orange and herbicide as part of a procurement agreement with the US military. 

On the point of military procurement, under US domestic law the contractor and US government can raise a “government contract” defence (if procurement design requirements are met) and “derivative sovereign immunity” defence against damages, and injury claims. These defences were affirmed in the class action lawsuits of In re “Agent Orange” Product Liability Litigation case brought by Vietnam War veterans and the Vietnam Association for Victims of Agent Orange (VAVA) v. Dow Chemical Co. case. (VAVA has recently declared to be supporting Ms. Tran in her appeal). However, it is interesting to note that US courts hold that a foreign government’s purchase of military equipment or for military purposes falls under the commercial activity exception under §1605 (a)(2) Foreign Sovereign Immunities Act (FSIA). Thus, such acts, unlike their domestic counterpart, do not enjoy sovereign immunity. (See e.g. McDonnell Douglas Corp. v. Islamic Republic of Iran, Republic of Argentina. v. Weltover, Inc.; before the passing of the FSIA US courts did grant sovereign immunity to foreign governments purchasing arms in Aerotrade, Inc. v Republic of Haiti)

Reconciling Prudent Judicial Abdication with the Imperative of Victim Redress

The traditional rationale for granting sovereign immunity is based on the courtesy of the forum State, which acts upon “grace and comity” to not exercise its jurisdiction over another sovereign state in order to ensure good foreign relations. However, such reasoning does not seem to hold water in the face of crimes “shocking the conscience of mankind”. 

This tension is exemplified in the legal reasoning of the late Judge Ruth Bader Ginsburg (former SCOTUS Justice) and the late Judge Patricia Wald (former ICTY Judge) in the case of Princz v Germany before the DC Circuit. The point in dispute was whether the violation of jus cogens by the Third Reich constitutes an “implied waiver” of sovereign immunity under the FSIA. Judge Ginsburg held in the Opinion for the Court that no such waiver could be construed under the wording of the FSIA, elaborating the following on the need for judicial abdication (para 1175):

“We think that something more nearly express is wanted before we impute to the Congress an intention that the federal courts assume jurisdiction over the countless human rights cases that might well be brought by the victims of all the ruthless military juntas, presidents-for-life, and murderous dictators of the world, from Idi Amin to Mao Zedong. Such an expansive reading of § 1605(a)(1) would likely place an enormous strain not only upon our courts but, more to the immediate point, upon our country’s diplomatic relations with any number of foreign nations. In many if not most cases the outlaw regime would no longer even be in power and our Government could have normal relations with the government of the day — unless disrupted by our courts, that is.

Like Judge Wald, we recognize that this suit may represent Mr. Princz’s last hope of reparation. Still, we cannot responsibly make the inferential leap that would be required in order to provide him with the federal forum he seeks.” 

(emphasis mine)

As indicated, Judge Wald held in her Dissenting Opinion that an implied waiver must exist for jus cogens violations, while weaving in the history of the interaction between notions of jus cogens and state sovereignty within relations between nations (para 1181 et seq) – notice her comments of what should constitute judicial abdication and good foreign relations: 

The principle of nonderogable peremptory norms evolved due to the perception that conformance to certain fundamental principles by all states is absolutely essential to the survival of the international community […] Thus, to preserve the international order, states must abdicate any “right” to ignore or violate such norms. […] 

The Nuremberg trials thus permanently eroded any notion that the mantle of sovereign immunity could serve to cloak an act that constitutes a “crime against humanity,” even if that act is confined within the borders of a single sovereign state. […]

[…]The rise of jus cogens norms limits state sovereignty “in the sense that the “general will” of the international community of states, and other actors, will take precedence over the individual wills of states to order their relations.” [here citing Philippe Sands]” […]

(emphasis mine)

While the ICJ’s isolation of the procedural and substantive dimensions of sovereign immunity and ius cogens violations in the Jurisdictional Immunities case may make doctrinal sense, it nevertheless unsettles us. As one barrister frames it “Arguably, then, there is no substantive content in the procedural plea of state immunity upon which a jus cogens mandate can bite” (Fox, 2002, p.525). Consequently, this “toothlessness” of a substantive claim for ius cogens violations (e.g. Germany never denied this point before the ICJ) crystalizes into a serious problem of access to justice and victim redress. However, on this point the ECtHR has consistently held that while sovereign immunity is a restriction on the right of access to a court, it nevertheless pursues a legitimate aim of “grace and comity”. Therefore, it cannot be regarded as disproportionate, as it reflects a generally recognised rule of public international law. (See e,g, Al-Adsani v. the United Kingdom, Grosz v. France). 

This will prove a significant challenge, even if after exhaustion of local remedies in France the path to the ECtHR were open to Ms. Tran. Commentators have nevertheless noted that that the ECtHR relied on state practice (as the ICJ did) on sovereign immunity and jus cogens. Thus, its proportionality finding was only superficial (Cf Uerpmann-Wittzack, 2014). We are left to wonder if the ECtHR were to conduct a true proportionality test, would positions such as Judge Wald’s turn the tide? After all, unlike the ICJ majority of 12-13 in Jurisdictional Immunities, the ECtHR was split 9-8 in Al-Adsani on sovereign immunity overriding jus cogens. We can only stay optimistic. 

Concluding Remarks

Realistically, we must steel ourselves for the possibility that be Ms. Tran’s lawsuit will ultimately fail in obtaining a legal judgement, which does justice to the long-term and severe suffering endured by Agent Orange victims. The fight to attain such redress in both the legal and political area is thankless, especially when wins secured (if any at all) and awareness raised is only incremental. Yet, this may be the only path to achieve justice for Agent Orange victims. Reparations will not depend on the US’s good will, but on reconciliation with the Vietnam War’s fraught legacy, which has been left searing on US foreign policy and national conscience.

By Tomas Marozas

[Tomas Marozas lectures international humanitarian law at the Institute of International and European Union Law of the Law School of Mykolas Romeris University (MRU). He is also a PhD candidate at MRU and his research interests involve legality of targeting satellites under jus in bello and directly related subfields such as environmental protection of outer space under legal regime of armed conflict.] Twitter   / LinkedIn

More than half of all Earth orbiting spacecraft serve military purposes (Maogoto, 2015, p. 31). The military significance and calculable trajectories of the orbiting satellites induce states to continuously develop anti-satellite (ASAT) technologies. The last three successful kinetic ASAT weapon tests conducted by China, USA and India raised concerns on the inevitable effects these weapons cause. The kinetic collision between China’s kinetic kill vehicle and the satellite generated an orbital ring of space debris spread from the altitude of 175 km to as high as 3 600 km. That was and still is the largest debris cloud ever generated by a single event in Earth’s orbit. This incident has happened in peacetime, but who knows when the armed conflict might move to space? The question of legality of targeting satellites during armed conflict has been raised multiple times, however, relatively little emphasis has been given to the substantive question whether ‘outer space’ actually forms part of ‘natural environment’ under the Law of Armed Conflict (LOAC). Only if it does, the whole legal
spectrum of LOAC environmental preservation requirements would be applied to outer space and, accordingly, legal tools be available to mitigate space debris formation during armed conflicts. The increasing number of space debris makes this brief analysis a relevant interdisciplinary topic.

The two main international legal instruments establishing rules of protection of natural environment during armed conflict are 1977 I Additional Protocol to Geneva Conventions (API) and 1977 Environmental Modification Convention (ENMOD Convention).

Article 35(3) of the API prohibits the employment of means and methods of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. Article 55 similarly requires to care and protect the natural environment against widespread, long-term and severe damage, however, adds “This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” This added sentence in Article 55 shaped a two-fold understanding of LOAC environmental preservation rules.

According to the first understanding (called anthropocentric), natural environment is not protected per se, since damage is only relevant to the extent that it negatively affects the health of civilians or cause harm to civilian objects. The proponents of this view would not consider an attack against natural environment a breach of LOAC if damage to the natural environment caused by the attack did not prejudice health or survival of civilian population. It must be clarified, that under the system of the LOAC, all objects during armed conflict are qualified as either military objectives or civilian objects. Civilian objects are all objects which are not military. Military objectives are those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization offers a definite military advantage. According to the anthropocentric view, not all parts of natural environment are ‘objects’ (might have no status at all). Only when a part of natural environment is used or relied upon by civilians or when harm to it affects civilians, natural environment qualifies for civilian object (ICRC Guidelines, 1994, p. 18). In the context of outer space, according to the discussed view, any amount of generated space debris during armed conflict or any release of dangerous materials in outer space (even if they were widespread, caused long-term and severe damage) would not be limited under LOAC as long as it did not affect civilians. Having in mind the fact that the threshold for environmental damage under LOAC is high (widespread, long-term and severe) and the damage should affect the whole population and not merely individual civilians, probably any attack in outer space would hardly ever be limited under environmental preservation rules of LOAC if they were interpreted only anthropocentrically.

There is another, a more dominant view, that both of the mentioned API articles have intrinsic value and consider separate parts of natural environment as civilian objects. According to that view, the health and existence of civilian population after the attack on natural environment should not necessarily be taken into account, since the mere damage to civilian object (alongside determination of principles of proportionality and distinction) would suffice to conclude the breach of Article 35(3) and Article 55. According to this intrinsic view, outer space (or its separate elements, such as orbits) would have the status of civilian object and be protected against the attacks as long as they were not military objectives. As Dinstein proposed, “The injury to human beings should be regarded not as a condition for the application of the injunction against causing environmental damage, but as the paramount category included within the bounds of a larger injunction” (Dinstein, Y., 2004, p. 182). The intrinsic view would allow to qualify the breach of LOAC’s environmental preservation rules even though civilian population was not threatened at all. In context of outer space, an intentional creation of space debris or chemical pollution of outer space having widespread, long-term and severe effects would be prohibited under LOAC, because outer space (Earth orbit’s or other parts of outer space) would in general be considered as ‘natural environment’ and have protective status of civilian object.

The ENMOD Convention in Article 2 defines environmental modification techniques as referring to “any technique for changing — through the deliberate manipulation of natural processes — the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.” That is the only multilateral international treaty where outer space is mentioned for the purposes of preservation of natural environment in context of the use of force. Despite the use of ‘outer
space’ in the definition, it needs to be stressed out the ENMOD Convention does not seek to define natural environment, but to prevent environmental modification techniques. Moreover, ENMOD Convention could not automatically be transposed to relevant articles in API, because these two documents have different purposes – ENDMOD Convention prevents the use of environmental modification techniques as a weapon (the so-called geophysical war), whereas API aims to prevent the natural environment from unlawful use of means and methods of warfare (the so-called ecological war). ENDMOD Convention prohibits environmental modification techniques only in so far as these techniques are used against another State, whereas API prohibits any widespread, long-term and severe damage to the natural environment irrespectively of the territory of the occurred damage. Therefore, the linguistically identical terms in two documents are not necessarily equal legally. The expert group of Tallinn Manual 2.0 adopted the definition of ‘natural environment’ accordingly to ENMOD Convention, however safely excluded ‘outer space’ from it. They argued that there was a ‘lack of conclusive State practice and opinio juris’ (Schmitt, 2017, p. 537). The expert group could not come up with a different general conclusion, since they had to crystalize lex lata of international law in cyber domain and international law is primarily created by states, not the scholars. Despite the lack of state practice, it yet may not be concluded that granting outer space the status of natural environment (or to be more precise – civilian object) is somewhat contrary to the requirements of LOAC.

The authors of the Commentary of the I Additional Protocol to Geneva Conventions (IAP) explained that he term ‘natural environment’ refers to the system of “inextricable interrelations between living organisms and their inanimate environment.” They further suggested natural environment to be understood “in the widest sense”. International Court of Justice (ICJ) in the Nuclear weapons opinion stated that “environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn”. This description is evidently broad, but does exclude out outer space from LOAC vested protection.

The challenge of protecting outer space under the general environmental protection rules of LOAC lies not in the definition of ‘natural environment’, but mostly because it is hard to perceive that space debris generated by kinetic ASAT weapons or even left out of any space vehicle launch is actually ‘damage’ to this natural but distant environment. The term ‘damage to the natural environment’ generally encompasses change of environment in negative way and accordingly space debris should fall under that notion.

In conclusion, despite the indefinite text of international treaties and lack of State practice, outer space may not be ruled out of the LOAC requirements relative to protection of natural environment. Under the dominant intrinsic view of protection of natural environment, outer space and its parts should be perceived as civilian objects as long as they do not legally qualify as military objectives.