Relevance of Human Right to Water for The Silala

April 23, 2022Posted in International Law and WaterTagged Human Rights, international law, WaterLeave a comment

By Otto Spijkers

Otto Spijkers is Professor at the China Institute of Boundary and Ocean Studies (CIBOS) and Research Institute of Environmental Law (RIEL) of Wuhan University. He can be contacted at ottospijkers@whu.edu.cn.

On the 6^th of June 2016, the Republic of Chile (‘Chile’) initiated a case against the Plurinational State of Bolivia (‘Bolivia’), before the International Court of Justice (‘Court’ or ‘ICJ’), requesting the Court to confirm that the use of the Silala is governed by general principles of international water law, as developed in customary international law and partly codified in the Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourses Convention). This convention was opened for signature on 21 May 1997 and entered into force 17 August 2014. It currently has 37 Parties, not including either Bolivia or Chile.

Provided the Court accepts – in this currently pending litigation where oral hearings are taking place at the time this post was written, i.e. April of 2022 – that the use of the Silala is indeed governed by these general principles of customary international water law, then Chile requests the Court to confirm that it has been acting in compliance with these general principles, but that Bolivia has acted in breach of them. The most important substantive principles of international water law are firstly the principle of equitable and reasonable utilization and secondly the obligation not to cause significant transboundary harm. These substantive principles are complemented by procedural principles that all have something to do with transboundary cooperation – such as the duty to consult, inform, and share information.

The dispute currently pending before the ICJ is framed as a dispute between two neighbouring states: Chile and Bolivia. This is because the Court’s contentious jurisdiction is limited to deciding disputes of a legal nature between states, in accordance with international law. These proceedings at the ICJ thereby only reinforce the impression that this is a classic inter-state controversy. In this inter-state frame, the rights of individual people in the governance of the Silala do not receive the attention they deserve.

One might point out that rights and interests of people living close to the Silala waters are best regulated and adjudicated at the national level, and that they are beyond the reach of international law. However, the proper use and management of the Silala, no matter how tiny the Silala might be, does concern people residing on both sides of the border, and these people relate to each other in various transboundary ways. It therefore cannot be left to the Chilean and Bolivian jurisdictions, operating in isolation, to accommodate these local rights and interests, and settle these local controversies. No matter the outcome of the inter-state dispute before the ICJ, this blog post calls for a recognition by the two states of the participatory rights in the governance of the Silala enjoyed by local individuals.

The key question I wish to address in what follows is whether a right for local individuals to participate in the freshwater governance of the Silala can be derived from international human rights law, the human right to water in particular.

The human right to water is not explicitly mentioned in any of the international human rights covenants, may nevertheless be derived inter alia from the human right to an adequate standard of living, included in Article 11.1 of the International Covenant on Economic, Social and Cultural Rights. Chile ratified this treaty in 1972 – even before its entry into force; while Bolivia acceded to it in 1982 – shortly after, making them both parties to the treaty. In its General Comment No. 15 on the Right to Water of 20 January 2003 (page 2, paragraph 3). the Committee on Economic, Social and Cultural Rights (‘Committee’) confirmed that the right to water can be based on established human rights, most importantly the human right to an adequate standard of living.

Under the international human right to water, individuals are entitled to participate in decision-making processes relating to freshwater resources they rely on to enjoy that right. General Comment 15 contains quite detailed instructions on participatory rights in relation to the human right to water. In the view of the Committee,

The formulation and implementation of national water strategies and plans of action should respect, inter alia, the principles of non-discrimination and people’s participation. The right of individuals and groups to participate in decision-making processes that may affect their exercise of the right to water must be an integral part of any policy, program or strategy concerning water. Individuals and groups should be given full and equal access to information concerning water, water services and the environment, held by public authorities or third parties.

In the view of the Committee, everyone within the jurisdiction of the state, without discrimination based on nationality, has the “right to seek, receive and impart information concerning water issues” (12(c)(iv)).

This raises the question of which individuals fall within the jurisdiction of Chile and/or Bolivia. All individuals situated within the territory of a state automatically fall within that state’s jurisdiction, but some human rights can also apply extraterritorially, under certain conditions. To answer the question of whether Boliva must respect the participatory rights of people residing in Chile, and vice versa, it needs to be established that the human right to water applies extraterritorially, and what that means exactly. In other words, does a state have an obligation to secure the enjoyment of the right to water by persons residing outside its territory, but within its jurisdiction and control? And if so, which local actors fall in casu within the jurisdiction and control of which State? And what kind of participatory rights do these extraterritorial actors enjoy?

It can be argued that Bolivia is obliged, inter alia, to allow the people in the Chilean communities of Baquedano and Sierra Gorda access to the Silala waters, and to allow them meaningful participation in the development of any plans regarding the exploitation and management of these waters. In fact, based on the extraterritorial application of the human right to water, Bolivia might even be under an obligation to maintain and repair the canals in the Silala as far as they are situated within Bolivia, at its own cost, for the benefit of these Chileans who are owed access to the waters.

All this is based on the extraterritorial application of the internationally recognized human right to water. In 2017, Roberta Greco suggested that:

[…] due to the external dimension of the human right to water, States should be prevented from adopting measures that can impair the enjoyment of adequate level of water for human and domestic consumption in other countries.

In casu, this meant the following:

A unilateral diversion of the [Silala] river by Bolivia which prevented the Chilean population from enjoying the right to water would run counter to the negative obligation to respect, that is to say to refrain from actively jeopardizing the enjoyment of the right to water abroad.

The extraterritorial application of the human right to water is supported by General Comment No. 15 of the Committee, already referred to above. Under the heading of ‘international obligations’, the Committee proclaimed the following:

To comply with their international obligations in relation to the right to water, States parties have to respect the enjoyment of the right in other countries. International cooperation requires States parties to refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to water in other countries. Any activities undertaken within the State party’s jurisdiction should not deprive another country of the ability to realize the right to water for persons in its jurisdiction.

From the above, we can conclude that both Chile and Bolivia are under an obligation to provide individuals, including those situated on the other side of the border but within their jurisdiction and control, the opportunity to participate meaningfully in decision-making processes that potentially affect the enjoyment of their human right to water.

In 2011, the Special Rapporteur on the human right to water, Catarina de Albuquerque, further elaborated on the participatory aspect of the right to water. In her view,

Participation must be active, free, and meaningful. It must go beyond mere information-sharing and superficial consultation, and involve people in decision-making, providing real opportunities to influence the planning process. The organization of a truly participatory process is challenging. Different mechanisms and approaches will be required, including consultations with various stakeholders, public meetings, and hearings as well as the opportunity to submit written comments and feedback (paragraph 69).

Meaningful participation of local actors in the governance of the Silala thus requires that their participation be not merely ‘tolerated’ only to give the appearance that the two states are interested in what local actors have to say. Meaningful participation can indeed be ‘challenging’, as Catarina de Albuquerque noted. It requires that local actors can participate, even if their participation leads to complications, frustrations, and delays. In other words, their participation should be considered inherently valuable, not of instrumental value. Importantly, this right to meaningful participation is not restricted to stakeholders found within a jurisdiction; it also provides extraterritorial stakeholders – i.e., those situated in a neighbouring jurisdiction – with participatory rights.

Exploring the “world’s town square”: online protests and the scope of the right of peaceful assembly

March 5, 2022Posted in International Law and TechnologyTagged international lawLeave a comment

[María José Escobar is a law graduate of the University of Bucharest.]

At this point in time, it is not controversial to state that the COVID-19 pandemic has challenged what the world took for granted regarding the exercise of our most fundamental freedoms. Not only did States adopt strict and unusual restrictions on mobility and expression, but we also witnessed how these rights had their boundaries tested as reality shifted to an online forum.

In line with this trend, it must be noted that both experts and States are constant in affirming that Human Rights, such as freedom of assembly, must be protected online as well as offline.

As correct as this affirmation is regarding freedom of assembly, it is also clear that social media is not a mere instrument that can be used to facilitate the organization of physical gatherings, but rather a tool that also allows us to congregate in ways that were simply not possible 30 years ago. Consequently, the question must be raised: is the current legal framework prepared to safeguard the digital exercise of this right?

Freedom of assembly and online protests: a general sketch

The right of peaceful assembly is protected by numerous international and regional instruments including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the European Convention on Human Rights.

In July 2020 the Human Rights Committee adopted General Comment No. 37 on the right of peaceful assembly. The document defined freedom of assembly as the right to “organize or take part in a gathering of persons for a purpose such as expressing oneself, conveying a position on a particular issue or exchanging ideas.” General Comment No. 37 was praised by activists partially because it unequivocally asserted that the protection granted to freedom of assembly extends to peaceful gatherings held and organized within an online forum.

For sure, online forms of exercising freedom of assembly, including those seeking to enable civic engagement, precede the General Comment. Movements such as the Arab Spring had long before discovered the effectiveness of social media, more concretely Facebook groups, as a tool for facilitating and encouraging mobilization.

However, recent events have proved that activists may feel tempted to choose less traditional forms of virtual gatherings and protests. For instance, in Russia, people decided to rally in Yandex.Maps – the Russian version of google maps – to complain about a constitutional reform that would allow President Putin to stay in power until 2036. An additional and more popular example could be the 28 million Instagram users who used the #BlackOutTuesday hashtag to upload pictures of black squares as a symbol of protest against police brutality in the United States.

These novel forms of collective expression may help illustrate the premise that the dynamics of freedom of assembly can fundamentally differ when they take place in an online forum. For instance, the fact that online protests are not limited in space, and sometimes in time, makes the phenomenon difficult to delimit. Notably, it had been argued, before General Comment No. 37 was issued, that a gathering must be temporary to be considered an assembly (Nowak, 2005, p. 484). Other authors considered “bodily proximity” as one of the key dimensions of both assemblies and demonstrations (Butler, 2015, p. 178).

Given these discussions, concerns had been raised regarding the general applicability of rules dealing with freedom of assembly to every form of online gathering. These concerns mostly focus on how key elements related to this right, such as its relationship with freedom of expression and the permissibility of certain restrictions, will play out in the virtual arena. Consequently, it was suggested to give priority to freedom of expression, and not freedom of assembly, when analyzing certain forms of digitally collective expression (see here, here, and here for a more profound analysis on the discussion).

General Comment No. 37 settled these debates and specifically asserted that article 21 of the ICCPR protects online assemblies. Still, the highly authoritative character of this clarification is not immune to unanswered questions. How can we establish participation when a gathering takes place in an online forum? Can shutting down a hashtag be considered a restriction to freedom of assembly? Is it possible to determine when a virtual assembly starts and ends?

Limitations specific to online forums

The characteristics proper to virtual assemblies demand a closer look at the validity of certain limitations to the right of peaceful assembly which have traditionally been accepted as legitimate. Typically, any peaceful, non-violent gathering falls under the protection granted by freedom of assembly. As such, restrictions on these types of assemblies can only be imposed if they pursue certain legitimate aims and comply with the standards of legality, necessity, and proportionality.

In this regard, it remains unclear if and how virtual demonstrations can become violent as, according to General Comment No. 37, violence implies “the use by participants of physical force against others that is likely to result in injury or death, or serious damage to property.” This distinction is relevant because only peaceful gatherings benefit from protection. Incidentally, a Recommendation of the Committee of Ministers from the Council of Europe warned that even if individuals do have the right to protest online if the virtual protest “leads to blockages, the disruption of services and/or damage to the property of others” legal consequences might be in order.

On a similar note, it is important to clarify that, ordinarily, individual acts of violence are not enough for an assembly to be characterized as violent. For an assembly to fall outside of the protection granted by freedom of assembly, General Comment No. 37 asserts that violence must be “widespread and serious.” On the other hand, the European Court of Human Rights has ruled that for a gathering not to be considered peaceful, “organizers and participants must have had violent intentions, incite violence or otherwise reject the foundations of a democratic society.” It is worth noting that until this day, to the best of my knowledge, there has yet to be an online demonstration characterized as violent.

Similarly, when dealing with permitted restrictions to freedom of assembly, the protection awarded to this right assures that a peaceful protest must be able to reach its targeted audience. Given the amplifying effect of the internet, any restriction targeting the virtuality or virality of a protest would severely impede the targeted audience- i.e an indefinite group of internet or social media users- to witness the campaign. This brings up the question: is there any room for “time and place restrictions” when analyzing online gatherings?

Nevertheless, something is certain as far as restrictions are concerned: indiscriminate internet blockages, used to censor speech or crackdown on gatherings or protests, have been clearly considered disproportionate. The Special Rapporteur on freedom of assembly has even asserted in paragraph 52 of a report on the rights to peaceful assembly and association that “network shutdowns are in clear violation of international law and cannot be justified in any circumstances.” This standard is particularly relevant, as the practice seems to have become more and more common, even among well-established democracies.

Conclusion

The right to freedom of assembly has been described as an “essential component of democratic governance.” This remains true in a virtually connected world: the right to collective expression is still one of the pillars which help a tolerant and broad-minded society to thrive. Whether they spread calls for social action, become a space to share common interests, or even a stage for civic protest, online forums must be protected as means to both enable and exercise freedom of expression and assembly. Social media and similar tools have value to human rights because of, and not despite, the new features and challenges they bring to the table.

Views expressed in this article are the author’s own and are not representative of the official views of Jus Cogens Blog or any other institute or organization that the author may be affiliated with.

Why We Need to Stop Distinguishing Current Autonomous Weapon Systems

February 15, 2022February 15, 2022Posted in International Law and TechnologyTagged autonomous weapons, international lawLeave a comment

By Nurbanu Hayır

In 2018, a group of experts under the framework of The Heinrich Böll Foundation published a report on autonomy in weapon systems. As this report is a policy suggestion to the German government on the legality of autonomous weapon systems (AWS), it reflects on their definition of them. After defining AWS as “any weapon system with autonomy in the critical functions of target selection and engagement” as inspired by the International Committee of the Red Cross, the report summarizes specific characteristics of some weapon systems that “keep them distinct” from fully AWS “that raise concerns” under international law. It enumerates these characteristics as (1) Use of the weapon system in “highly structured and predictable environments” (2) Inability to “dynamically initiate a new targeting goal” (3) Constant human supervision (4) Anti-material uses of the weapon system in order to argue that they do not qualify as AWS.

This article claims that these distinctive characteristics bewilder the debate on what AWS are and whether AWS are illegal. Weapon systems with autonomy in their critical functions, i.e., systems that can “select (i.e. search for or detect, identify, track) and attack (i.e. intercept, use force against, neutralise, damage or destroy) targets without human intervention” should be defined as autonomous weapon systems irrespective of these characteristics because these do not mean that a particular system does not have autonomy in its critical functions but only that the use of AWS might be legal under International Humanitarian Law (IHL).

The purpose of this article is not to argue that all that qualify as AWS is illegal, but rather all that qualify as AWS should be regulated under international law. We should not allow AWS to escape regulation by distorting its definition. Considering that an essential part of the discussions held globally is on whether AWS require the development of new norms under IHL, defining AWS as broad as necessary is crucial to determine the scope of application of these new rules.

Use of the weapon system in ”highly structured and predictable environments”

The use of the system in highly structured and predictable environments may be likely to decrease the likelihood of misidentifying targets. Nevertheless, they should not be considered elements to refrain from defining these systems as AWS, but rather elements to consider when deciding whether the use of a particular AWS is legal in casu.

Autonomy is the ability to operate independently from a human operator. It is the product of Artificial Intelligence, a field of study that has allowed machines to develop functions initially performed by humans. A way of doing this is through hand-coded programming, where coders define everything beforehand, which yields no predictability issues unless an exceptional malfunction occurs. However, this method is increasingly outdated at the expense of machine-learning, a coding technique that provides more autonomy to machines. To put it very roughly, machine learning algorithms, which are a series of combinations to solve a function as in an algebra class, allow the machine to make its own decisions after receiving the data about the environment and the task it must perform with the help of humans. This has increased predictability issues since not everything can be pre-programmed by the coder and machine-learning algorithms are not transparent for humans to untangle. This is so because the machine operates through thousands of combinations when deciding, where humans eventually lose track due to the limits of their cognition. Thus, although humans set the goal for the machine, they cannot foresee the pathway in which the machine makes the decision that might lead to an unpredictable result.

This foreseeability issue is particularly important because systems are likely to misidentify targets due to the limits of the current technology. Machines’ perception of the environment remains radically different from that of humans, i.e., they use hundreds of dark squares (pixels) to recognize an object. In contrast, humans see and interpret objects in a cognitive way that is unmatched by that of machines. When used in target recognition in weapon systems, this has serious repercussions in “misidentifying” targets by machines. Target recognition is equally as important as target engagement in determining whether a weapon system qualifies as an AWS. This should be the case because although a human may intervene in the target engagement phase, as target recognition is completely independent of humans, the decision to engage will heavily rely on the target recognized by the autonomous function. Autonomous target recognition in the critical function of selecting targets should be sufficient to define the system as an AWS

Thus, the use of the weapon system in highly structured and predictable environments should not prevent it from being defined as an AWS.

2. Inability to “dynamically initiate a new targeting goal”

Initiation of a new targeting goal based on the objective introduced to a system is a great example of a near-General AI, which can practically perform all the functions performed traditionally thanks to human cognitive abilities. Today’s AI is Narrow AI, which can only perform some functions that a human can. As an example of a near-General AI, the United Kingdom defines AWS as weapon systems “capable of understanding higher-level intent and direction.” However, the ability to select and attack targets, possible through Narrow AI, is sufficient to raise questions of compliance with IHL principles of distinction, proportionality, and precaution without a need for a General-AI system. For instance, a weapon system that is introduced with image and speed details to autonomously recognize and engage with a target raises questions under the principle of distinction as it is uncertain whether it can properly distinguish between lawful and unlawful targets. Although this system is not capable of understanding the goal of the command by the operator, it nevertheless raises concerns under IHL.

Thus, similarly above, the limits of the technology today should not prevent defining a system as AWS. For instance, although a system may be incapable of “dynamically initiating a new targeting goal” it may still have autonomy to recognize or engage with a target, which is likely to cause issues under IHL independent of the high-level complexity required by some States.

3. Constant human supervision

Although exercising human supervision from time to time may rule out autonomy entirely, the ability of the system to allow for human supervision does not render the AWS non-autonomous per se. There are many weapon systems with autonomy that are able to operate in the autonomous mode and sometimes do. More importantly, human supervision may be exercised on functions independent of targeting. A great example of this is active protection systems (APS), which are designed to protect armored vehicles at a speed that overpasses the human capability to detect targets. Though exercising human supervision is possible, the aim behind APS is to engage with targets faster than humans can, so they usually operate autonomously without human supervision in target engagement. Hence, human supervision is limited in the targeting functions for specific reasons. Thus, a weapon system will likely be defined as AWS.

Further, it is unclear how much reliance the human operator will vest on the weapon system. Concerns of automation bias also support that human supervision, unless it rules out the system’s ability to operate independently, cannot be a ground to disregard autonomy in the current weapon systems’ functions.

4. Anti-material uses of the weapon

IHL protects civilians and civilian objects under the principle of distinction, the principle of proportionality and the principle of precaution applicable to both the design and use of weapon systems during armed conflicts. If the weapon system is constrained by design to be used towards humans, surely there will be no issues concerning the protection of civilians during armed conflict. Yet, civilian objects (e.g., an operational hospital) might still be threatened. Further, civilian presence is an independent element of the characteristics of the weapon system. Thus, the target type cannot be a ground to claim that a weapon system is not autonomous but rather renders the use of that weapon in compliance with IHL.

Further, some weapon systems are not constrained by design to be used towards humans, but their deployment area happens to be scarcely populated by humans. This is the case for the US Phalanx-Closed-in-Weapon-System (Phalanx) deployed in naval areas with almost no civilian presence. The target software of Phalanx can select and attack its targets. The fact that it does so in naval areas does not mean that it has autonomy in its critical functions. It signifies that its use in autonomous mode is likely to comply with IHL rules, but there are instances where Phalanx misidentified its targets and opened friendly fire.

Hence, the fact that the system in question is used as an anti-material weapon system is not only sometimes irrelevant to the design of the weapon system; it also does not always mean that it is impossible to encounter consequences in violation of IHL.

Conclusion

The Heinrich Böll Foundation’s summary of the characteristics that distinguish current weapons systems from AWS demonstrate a phenomenon in the debate on the definition of AWS that should be eliminated: the definition of an AWS must be independent of the criteria that are likely to render its use legal under the norms of IHL on the use of such weapons. The use of the weapon system in “highly structured and predictable environments”, inability of the system to “dynamically initiate a new targeting goal”, “constant human supervision” over the weapon system, and “anti-material uses” of the system are merely factors that increase the likelihood of compliance of the AWS with IHL. They do not mean that a particular system does not have autonomy in its critical target selection and attack functions. This is particularly important to clarify because when a system is excluded from the definition of AWS, it is no longer possible to include it in the scope of application of the emerging rules on AWS.

Weapon System with Autonomous Functions and the Martens Clause: Are the use of these weapons in line with the principles of humanity and the dictates of public conscience?

January 25, 2022January 19, 2022Posted in International Humanitarian Law, International Law and Technology, Public International Law, UncategorizedTagged autonomous weapons, ihl, ILTech, international lawLeave a comment

By Clea Strydom

[Clea Strydom completed her B.A. Law and LL.B at Stellenbosch University, South Africa, before writing her LL.M dissertation on the International Humanitarian Law implications of weapon systems with autonomous functions through the University of Johannesburg, South Africa.]

Introduction

States are increasingly implementing artificial intelligence (AI) to pursue autonomy in weapon systems for armed conflict for various reasons, including, faster reaction time, faster data collection and processing, and being able to use robots instead of risking human combatants’ lives. There are, however, concerns that weapon systems with autonomous functions cannot be used in compliance with International Humanitarian Law (IHL), that it is unethical for machines to lethally target humans, and that their use could lead to an accountability gap. Therefore, there has been an ongoing debate about whether to ban the development of these weapon systems. The mere fact that these systems have autonomy is not the issue the ongoing legal debate is focused on; rather it is the delegation of critical functions i.e., acquiring, tracking, selecting, and attacking targets, to weapon systems, that is of concern. The ICRC has correctly identified that “ethics, humanity and the dictates of the public conscience are at the heart of the debate about the acceptability of autonomous weapon systems.”

Weapon Systems with Autonomous Functions

Autonomy in weapon systems should not be seen as a mere development of conventional weapons, instead, it is a paradigm shift in weapons technology that could change warfare drastically. Autonomy in weapon systems does not denote a specific new weapon but rather a shift in the level of human control over critical functions to weapon systems. This concerns a change in how warfare is conducted. While the most widely used terms are Lethal Autonomous Weapon Systems (LAWS) or Autonomous Weapon Systems (AWS), ascribing autonomy to the whole system is problematic. It should be kept in mind that autonomy is not a type of technology, but rather a characteristic of technology, related to certain functions, instead of being attached to the object itself. Due to the problems with ascribing autonomy to the system, Andrew Williams suggests referring to “autonomous functioning in a system” in general, or “systems with autonomous functions” when referring to a specific platform or system. Therefore, the author has adopted the term weapon systems with autonomous functions (WSAF), as it indicates that the whole machine is not autonomous, but instead that it can perform certain functions with varying degrees of human interference, which will depend on various factors such as the system’s design or intelligence, the external environmental conditions in which the systems will be required to operate, the nature and complexity of the mission, as well as policy and legal regulations. It must be kept in mind that while autonomy in weapon systems is being pursued by several States, weapon systems that can perform critical functions autonomously are still a thing of the future. Therefore, the debate, including the advantages and disadvantages of autonomy in weapon systems, is at this stage still speculative.

The Martens Clause

The Martens Clause made its first appearance in the 1899 Hague Convention II and has since been included in Additional Protocol to the Geneva Conventions, Article 1(2):

“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”.

The International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion confirmed the principle contained in the Marten Clause as customary IHL and held that it “proved to be an effective means of addressing rapid evolution of military technology”. Concerning WSAF, the crux is whether the delegation of life and death decisions to a robot would be in line with the dictates of public conscience and principles of humanity.

Professor Michel Veuthy highlighted the importance of public conscience in IHL and identified that it can trigger the codification of IHL principles, be an impetus for the implementation and enforcement of IHL, and provide a safeguard for all situations not provided for or considered in the law. On the other side of the argument, Michael Schmitt argues that the Martens Clause only applies in the absence of applicable law in the Geneva Convention and Additional Protocols or international agreements such as treaties; and that since 1899, when the Martens Clause first appeared, the law relating to weapons has developed to such an extent that it covers all existing and future weapons. As a result, the role of the Martens Clause has been diminished. He argues that it is unlikely that any weapons would be found to be in contravention of the Martens Clause if it has been found to comply with IHL and applicable treaties. However, Robin Geiss points out that the IHL principles applicable to weapons are framed in a human-centric manner and might not sufficiently be able to deal with autonomy in weapon systems; therefore the Martens Clause could be used to create new laws or act as a safety net, as Veuthy suggests.

Even if it is accepted that a weapon could be banned based on the Martens Clause, several questions with no clear answers arise: first, how does one determine what the public conscience is, and secondly, which public? It is unlikely that the global public will share a common ‘conscience’. The public conscience and principles of humanity are not timeless or universal. Several individuals have conducted surveys to try and determine public opinion on the weapon systems in question. Political scientist and current Inspector General of the United States Department of Justice, Michael Horowitz found that public opinions depend on context. In the first round of questions, Horowitz’s survey found that 48% of participants were opposed to “autonomous weapons”. However, once he put the use of the weapons in context and highlighted their benefits, opposition to them dropped to 27%. In American roboticist and robo-ethicist, Ronald Arkin’s survey participants acknowledged that “autonomous weapon systems” do have a role to play, but the majority felt that they should not be allowed to use force. IPSOS, a global market research, and public opinion specialist company has done various surveys on the views of “killer robots” for Human Rights Watch and the Campaign to Stop Killer Robots (who have called for a ban of “weapon systems that can perform critical functions autonomously). Interestingly the latest survey, conducted between November 2020 and January 2021 across 28 countries, shows that there is a correlation between opposition and the age of the respondents; with a 54% opposition average for those under 35 years of age, and 69% among those ages 50-74. This can be indicative of several factors, including that the younger generation is more accepting of technology and that the older population is more likely to have had first-hand experiences of the horrors of war.

HRW believes that States should be considering these views when reviewing “autonomous weapons”. The perspectives do not create binding rules but may influence treaties and decisions to deploy the weapons. It is important to keep in mind that opinions change over time. While 50 years ago we could not imagine the possibility of unmanned remote-controlled systems being an integral part of military arsenals as they are today, we have come to accept them to a large extent. Surveys need to be seen in the context of the time, the way the questions are framed, and in this case, advancement in technology. As autonomy in weapon systems develop and the technology becomes more advanced, views on them will change. Armin Krishnan notes, in his book titled Killer Robots: Legality and Ethicality of Autonomous Weapons, that with “social conditioning” views on WSAF will evolve.

Regarding the principles of humanity, there is a concern about the importance of human agency in life and death decisions. A lot of anxiety exists about losing human control over weapon systems and war in general, which raises questions beyond compliance with laws and also considers whether the deployment of such weapon systems is in line with our values. Delegating decisions about life and death may dehumanize armed conflict even further. The concern is that allowing weapon systems to lethally target humans means they are not treated as unique human beings which is an afront on human dignity; late Professor Heyns referred to this as “death by algorithm”. It has also been argued that the anthropocentric formulation of IHL principles implicitly requires human judgment over decisions regarding force.

Conclusion

To date, the Martens Clause has never been used to ban a weapon. It must be kept in mind that at this stage the debate is still very speculative. Weapon systems that can perform critical functions autonomously, however, offer numerous advantages and it is unlikely that States will refrain from developing and deploying weapons that would give them the upper hand based on personally held views. What the Martens Clause does do is to remind us that in deciding on whether and how to design, develop and use WSAF we must do so in a way that safeguards our values instead of rendering them unsustainable.

The Jus ad Bellum Spatialis and the potential impact of Soft Law in regulating the Use of Force against Space Objects

January 18, 2022Posted in International Law and Technology, Public International LawTagged international law, Jus ad bellum, Outer spaceLeave a comment

By Sören Sommer

[Sören Sommer (LL.M.) is a PhD law student at the University of Glasgow.]

The recent Russian anti-satellite missile test has abruptly brought the risk of potential future conflicts in outer space back on the international space and security agenda. As has been repeated time and time again, outer space is increasingly becoming more competitive, congested, contested, and even weaponised (Schrogl et al., 2015, pp. 521-716; Steer, 2017, p. 9). Due to the ever-increasing reliance of modern societies and modern militaries on space assets, sophisticated means and methods of space warfare to use force against space objects are being rapidly developed. Potential future conflicts over space resources and geopolitical conflicts on Earth which might spill-over to space contribute to the fragility of the continued peaceful and cooperative use of outer space and further increase the risk that space objects will be targeted in future outer space conflicts. This entails grave humanitarian consequences due to the potential outage of essential space-based services (Thomas, 2011; Sommer, 2019) and space environmental risks due to the creation of harmful space debris.

Fortunately, actual hostilities have not been conducted in outer space to date. This of course also means that there is no sufficient State practice on the matter so far, but rather much political and legal uncertainty instead, since unfortunately, the jus ad bellumspatialis (the international regime governing inter-State armed force in outer space) is far from being conclusively developed (with manual projects like MILAMOS and Woomera still ongoing) and remains insufficient to appropriately prevent and regulate conflicts in outer space and ensure its continuing sustainability, peacefulness, and security. Various hard law initiatives such as the longstanding disarmament efforts by the UN Conference on Disarmament (UNCD) to conclude a Treaty on the Prevention of an Arms Race in Outer Space (PAROS) and also the ultimately unsuccessful drafting and negotiation process of the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Space Objects (PPWT) aimed at prohibiting the use of force against (another State’s) space object have been (and will likely remain) unsuccessful due to lacking or diverging State interests when it comes to regulating and especially restricting military uses of the “ultimate high ground” (Sheehan, 2015, pp. 12-13; Mutschler, 2015, pp. 43-48).

While States have failed to formulate a clear prohibition on the use of force in outer space through hard law despite all the increasing risks, I would like to point out in this post how besides the UN Charter and general international space law already prohibiting the use of force against other States’ space objects, especially soft law might play a crucial role in ensuring the continued sustainability, peacefulness, and security of outer space by contributing to the remarkable formation of an international customary norm prohibiting such uses of force and thus fill a dangerous legal gap in the jus ad bellum spatialis. In my opinion, such a customary norm has already started to form through soft law, primarily expressed by a series of consistent and widely supported United Nations General Assembly (UNGA) resolutions on the matter, which can be seen as evidence for existing opinio juris. Furthermore, the absence of open uses of force against space objects in cases of inter-State conflicts can be viewed as concurring State practice on the matter (for now).

First, I would like to briefly revisit how existing hard law – the UN Charter and international space law in particular – already but insufficiently prohibits the use of force in outer space in my view.

The rules of the UN Charter are generally considered to apply in outer space, but are very general themselves, including their well-known sometimes more but often less force-restrictive interpretations. Art 2 (4) of the UN Charter is principally sufficiently broad to also cover (illegal) uses of force in outer space, despite the fact that there cannot be conventional cross-border use of force due to the lack of borders in the res communis environment of outer space where targeted objects are principally outside the territory of any State. This is because Art. 2 (4) of the UN Charter not only prohibits the use of force “against the territorial integrity” of another State, which is conventionally understood as prohibiting cross-border force (Hakimi & Cogan, 2016, p. 257), but also broadly prohibits the use of force “in any other manner inconsistent with the Purposes of the United Nations”. These “Purposes of the United Nations” are laid down in Art. 1 of the UN Charter and are above else “to maintain international peace and security” (Art. 1 (1) UN Charter), which is irreconcilable with using force in outer space. On that basis it has been convincingly argued that the UN Charter use of force prohibition thus also extends to uses of force in outer space (Goh, 2004, p. 263; Cheng, 1997, pp. 70-72; Sommer, 2019, pp. 22-35).

The outer space use of force prohibition is in my view also implicitly reflected in international space law. The international framework regulating outer space activities consists of five multilateral space treaties at the core (most of which today enjoy wide ratification), which were concluded under the auspices of the UN, and nowadays also of various soft law agreements, such as UNGA resolutions, transparency and confidence-building measures, and policy guidelines (Freeland, 2015, p. 91). Many of the space treaties’ provisions have customary international law status today (Lee, 2003, p. 93; Schmitt, 2017, p. 270; in fact, all provisions referenced in this post enjoy such status) and generally, custom and soft law instruments are of particular importance for regulating outer space activities (Cheng, 1997, pp. 127-150; Tronchetti, 2011, pp. 619-633).

The rules of international space law focus almost exclusively on the peaceful uses of outer space and remain largely silent on the issue of the use of force. On the one hand, this entails lacking normative clarity regarding the use of force in outer space, but on the other, it is also indicative of how the international community imagines its shared use of outer space in my opinion and importantly, international space law is linked to the general jus ad bellum regime.

Particularly, the central and widely ratified international agreement on the use of outer space, the Outer Space Treaty (OST), states that outer space use shall be in accordance with international law and the UN Charter (Art. III OST). The jus cogens use of force prohibition as found in the UN Charter as well as in customary international law thus also applies to outer space use.

Furthermore, the so-called “launching States” (Arts. VII OST, I (a) Registration Convention (REG)) retain sovereignty over their space objects under international law by exercising “jurisdiction and control” according to Arts. VIII OST, II REG (Schmidt-Tedd & Mick, 2017, pp. 520-524). This is similar to maritime law and the concept of the “flag state”, which shall also “exercise jurisdiction and control […] over ships flying its flag” (Art. 94 United Nations Convention on the Law of the Sea). In the Nicaragua case, the ICJ held that the “principle of respect for State sovereignty […] is […] closely linked with the [principle] of the prohibition of the use of force”. (para. 212) Since space objects remain under the sovereign control of their respective launching States it is my opinion that the use of force against another State’s space object therefore qualifies as a prohibited use of force (Sommer, 2019, p. 34).

Apart from the general jus ad bellum rules, international space law is clear on the fact that outer space is first and foremost to be used for peaceful purposes (Finch, 1968, p. 365), despite its past and present military use (Goh, 2004, p. 269). Paras. 2 and 4 of the OST preamble first mention the principle of the peaceful purposes of outer space use, which is considered to be customary law (Blount, 2012, p. 2) and appears in almost all UN documents relating to outer space. While the peaceful purposes principle is often seen as indicative of how the international community imagines its shared use of outer space, the fact remains that the international space treaties are largely silent regarding unpeaceful uses of outer space. There is only Art. IV OST which prohibits the placement of WMDs in space.

The lack of sufficient normative clarity under the UN Charter regime and general international space law regarding the legality of using force in outer space contains the risk that States abuse the existing legal gaps or act in a way that others consider unlawful. This could also alter contemporary, force-restrictive interpretations of the jus ad bellum spatialis due to converse State practice. Since it is inconceivable at the moment that the major global space powers will be willing or able to agree on any new space treaty in the foreseeable future due to lacking or diverging State interests, especially with regard to restricting the use of force in outer space or prevent its weaponization (apparent when looking at the unsuccessful drafting and negotiation process of the aforementioned PPWT), looking for other means beside treaty law restricting the use of force in outer space seems appropriate because of the potentially highly adverse effects of space warfare.

A peculiarity of international space law is not only the particular significance of its customary law, which for the past decades has filled and continues to fill the gaps of lacking State support for new UN space treaties and compensates for their inadequacies (Tronchetti, 2011, pp. 619-633), but also that such customary space law is frequently formed through soft law like UNGA resolutions. In its 1996 Nuclear Weapons Advisory Opinion, the International Court of Justice (ICJ) generally stressed the potential relevance of soft law (UNGA resolutions in particular) for the development of customary law:

“The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions for its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.” (para. 70)

One year later, Cheng (Cheng, 1997, pp. 127-150) famously noted the possibility of “instant custom” in international space law with regard to UNGA resolutions and thus underlined the importance of soft law for the development of international space law, which continues to be relevant today.

Since 1959, the UNGA has adopted 64 resolutions on International Co-operation in the Peaceful Uses of Outer Space and 26 resolutions on the Prevention of an Arms Race in Outer Space, almost always with overwhelming support. These resolutions can be considered as authoritative interpretations of the UN Charter in the outer space-context and contribute to the formation of customary international law regarding the prohibition of using force in outer space (Goh, 2004, p. 260). Moreover, the 2017 UNGA Resolution on Further Practical Measures for the Prevention of an Arms Race in Outer Space explicitly encourages all States to actively contribute to the “prevention of […] the use of force against space objects.”

In my opinion, the series of consistent and widely supported UNGA resolutions on the matter can be seen as evidence of emerging opinio juris through soft law prohibiting the use of force in outer space in line with the ICJ’s criteria in its aforementioned Nuclear Weapons Advisory Opinion. Furthermore, the absence of open uses of force against space objects (although clearly feasible from a technical standpoint, as several successful anti-satellite weapons tests in the past have shown) in cases of inter-State conflicts can be regarded as concurring State practice on the matter.

As Cheng has shown, customary international law can rapidly develop from UNGA resolutions. Thus soft law will continue to play a crucial role in regulating space activities in the future and the emergence of an international custom prohibiting the use of force against space objects might provide an exit from the international community’s deadlock with regards to sufficiently regulating the use of force in outer space and could therefore be vital in ensuring the continuing sustainability, peacefulness, and security of outer space and its beneficial use for mankind.

Using Indigenous Knowledge Systems in Climate Policy Development

December 30, 2021Posted in International Environmental LawTagged climate change, COP26, ILO, indigenous, international law, Knowledge, natureLeave a comment

By Katie Donnellan

(Katie Donnellan is a research assistant in the Department of Law at Maynooth University, Ireland.)

The convergence of World Indigenous Peoples Day and the release of the IPCC Report on climate change on August 9th, 2021 highlighted the convergence of the issues of climate change and the empowerment of Indigenous Peoples (IPs). In November 2021, the UN Climate Change Conference, or COP26 summit, presented the opportunity to operationalize the empowerment of IPs in the battle against climate change, and Indigenous voices were heard both inside and outside of the summit, influencing negotiations and protesting on the streets. Selected Indigenous stakeholders who were party to negotiations enjoyed ‘Friends of COP’ status, a nod to the role of Indigenous Knowledge Systems (IKS) in combatting climate change. However, in practice, IPs were disproportionately blocked from attending Glasgow, with obstacles ranging from lack of access to Covid-19 vaccines, unpredictable travel rules and visa and accreditation issues. The deal reached at the conclusion of the summit bitterly disappointed Indigenous activists, who denounced it as a ‘death sentence’ for Indigenous communities, largely due to the incentivisation of off-setting, rather than cutting, emissions, which is linked to issues ranging from environmental destruction to murder. As encapsulated by the Indigenous activist Andrea Xieu, ‘The problem is not only the blah, blah, blah of politicians, but the bang, bang, bang of greenwashing.’

The outcome of COP26 is a symptom of the broader issue of the exclusion of IPs from international climate policy discourse and the extant underlying trust deficit between IPs and the UN community. Invoking IKS to address the climate catastrophe is timely, according to former UNGA President, Maria Fernanda Espinosa: ‘We either think about the next elections or the next generations’. Often living in high risk environments, IPs are the first and most severely impacted by the negative consequences of climate change. They comprise just 5% of the global population yet protect 80% of global biodiversity. The value of their contribution to climate decision-making is evident, as their ‘resilience, creativity and resolve… [has] done so much not only for IPs but for the world, and will continue to bring the world to a better place.’ (Former Special Rapporteur for the Rights of Indigenous Peoples, James Anaya).

IKS constitute ‘the understandings, skills and philosophies developed by societies with long histories of interaction with their natural surroundings’ which ‘complement broader-scale scientific research with local precision and nuance.’ Their well-documented value to developing culturally-appropriate climate change solutions is manifold, from environmental observation to developing mitigation and adaptation technologies. This is exemplified in the Cameroonian forests, where the Indigenous Baka peoples are making their voices heard through Indigenous-led technologies which ‘connect indigenous knowledge and values with decision-makers’ and rebut the negative perceptions of IKS which underpin traditional State practices of ‘conservation from above.’ Participative technology is empowering Baka peoples to lead collaborative mapping projects, under which solutions are led and informed community concerns. The benefits of including IPs in the 2030 Sustainable Development Agenda, and in climate action specifically, are two-fold: situated on the front-lines of climate impacts, IPs provide a measure for the Agenda’s achievement, whilst IKS can also substantively contribute to climate change solutions. It is therefore vital that IPs are included in international decision-making to combat climate change.

The ILO Convention 169 affords IPs rights to political agency and participation. Its poor ratification rate frustrates this instrument’s potential to be a widespread, legally binding source of Indigenous inclusion in policy-making, however, it can still provide a template for informing the creation of inclusive, collaborative decision-making processes. The 1992 UN Framework Convention on Climate Change and its 1997 Kyoto Protocol make no reference to the role of IKS, however, the Convention on Biological Diversity, 1993 recognises the role of ‘traditional knowledge, innovations and practices’ in conservation and sustainability of biological diversity, and a 2012 Report explores how to promote their participation in the UN. The UNDRIP recognises the right of IPs to political participation and autonomy, while their role in climate decision-making was explicitly recognised in the preamble of the 2015 Paris Climate Change Agreement and implicitly in the Sustainable Development Agenda, which prioritises the fight against climate change and building inclusive institutions. UNGA Resolution 71/321 and its follow-up report encapsulate the political momentum gained for enhancing the IPs participation in the UN.

Ms Espinosa identifies three deficits which hinder the transformation of this political will for inclusion of IPs into concrete action to create collaborative policy-making processes and to promote knowledge-sharing between Indigenous and non-Indigenous forums. The first deficit is the implementation deficit, referred to by Mr Anaya as the need to ‘operationalise the rights and principles agreed upon’ in various international treaties and to mobilise the political will to not only vindicate specific IPs rights but to also include IPs in confronting issues like climate change, through the top-down financial and political empowerment of local-led, grass-roots initiatives.

Bridging the second deficit of inclusion and participation requires the transformation of current UN political structures so as to become more inclusive of all of society. As it stands, IP agency within the UN system is largely confined to the UN Permanent Forum on Indigenous Issues (UNPFII), an insular forum with little outward engagement with other branches of the UN political system. IP voices need to be included across the UN political framework and the participatory forums which comprise it need to become more engaged with one another in order to reap the benefits of diverse viewpoints. The UN itself recognises that the most effective solutions for combatting climate change are those emanating from the populations who are affected by climate change, such as Indigenous populations, and developed through decision-making processes that are accountable to and inclusive of those populations. Such solutions are enriched by localised knowledge, sustainable subsistence and community-based innovation. In this spirit, IKS incorporates the Indigenous principle of ‘two-eyed seeing’ which ‘refers to learning to see from one eye with the strengths of Indigenous knowledges and ways of knowing, and from the other eye with the strengths of Western knowledges and ways of knowing, and to using both these eyes together, for the benefit of all.’ UNESCO acknowledges the benefits of granting political representation, agency and autonomy to IPs, at both the local and international levels, as it is their lived experiences and generational wisdom that provides the most effective solutions for fighting and adapting to climate change. Indeed, the motto of Ms Espinosa’s UNGA presidency was ‘making the UN relevant for all… making the multilateral work to improve quality of life, rights and standards at the local level.’ Political participation is central to not only empowering the agency of IPs but also to enriching policy-development with IKS.

Thirdly, the trust deficit encapsulates the perception by marginalised people, including IPs, that UN institutions are not delivering for them. Although UN bodies have recognised the importance and contributions of IPs to climate change discourse, as outlined above, it appears this has not translated into concrete action to include them. Ms Espinosa advocates for a resolution through a reconnection of scales, by which she says the UN must empower IPs to be architects of their own destinies and enable local decision-making to inform UN policy through the instalment of effective built-in listening machinery to register the voices of IPs worldwide. This could be bolstered by more streamlined, effective and accessible Treaty Body processes, under which IPs could assert their rights within the UN system. She further highlights that the enhancement of IPs’ status within the UN needs to go further than the dedicated Permanent Forum for Indigenous Issues, which, as an exclusively Indigenous forum consisting of inter-Indigenous dialogue concerning primarily Indigenous issues and confined to an Indigenous – as opposed to a UN – agenda, fails to foster the integration of Indigenous views into mainstream policy-making, and which lacks outside engagement from other branches of the UN system.

Efforts are underway to bridge these deficits, with UNESCO’s inclusive, transparent consultation process for the development of its Recommendation on Open Science, seeks to recognise and include IKS in formal science and educational systems, based on principles of inclusiveness and respect for diversity. The report issued at the conclusion of this consultation process explicitly references IKS in the context of sustainable natural resource management and advocates for positive action and incentives to establish ‘respectful links between indigenous and scientific knowledge systems.’ Under the 2030 Agenda, UNESCO’s policy on Indigenous engagement is to ensure IP priorities are heard though various strategies: promoting inclusive collaboration between IPs, scientists and policy-makers, through dialogue, awareness-raising and capacity building between them; supporting the development of community-based observation systems and solutions which draw upon Indigenous knowledge, innovations and practices for adapting to and mitigating the effects of climate change; engaging with agencies across the UN system, including the specific Indigenous mechanisms within the UN system – namely, the above-mentioned UNFPII, the Special Rapporteur on the Rights of Indigenous Peoples and the Expert Mechanism on the Rights of Indigenous Peoples – and; advancing resource mobilisation efforts to finance the reform.

Back in August, IPs called for a new Social Contract, inclusive of all citizens of the world and truly reflective of ‘We The Peoples’. The outcome of COP26 highlights the UN system’s failure to heed this call. The above-mentioned trust deficits must be bridged and IP voices more actively included in decision-making if we have a chance of surmounting perhaps the greatest challenge of our generation, climate change.

None of the views presented in any article posted on the Jus Cogens Blog are necessarily the official positions or views taken by the Jus Cogens Podcast and Blog. All views presented in the article are those of the author alone.

Jus Cogens Podcast Featured on Courting the Law

July 26, 2020October 20, 2020Posted in UncategorizedTagged ihl, international law, jus cogens, pakistan, podcastLeave a comment

13 July 2020

Courting the Law – Pakistan’s leading legal news and analysis portal, did a feature on JC Law Podcast’s journey and development since the first episode with Niels Blokker came out in 2018. Check out the entire piece in the link below.

https://courtingthelaw.com/2020/07/13/more/jus-cogens-podcast-on-international-law/