Responsibility of state bystanders

(Delighted to welcome back alumna Monica Hakimi, who contributes this guest post)

When must states protect people from abuses committed by third parties?
That obligation (termed the “obligation to protect”) is everywhere in modern human rights law. Consider a few examples of how decisionmakers prescribe, invoke, or apply it:
► Under the Convention on the Rights of the Child, states must take measures to protect children from “physical or mental violence…while in the care of parent(s).”
► Non-refoulement prohibits states from returning people home if there is a risk of third-party harm. A state that deports someone despite that risk typically does not participate in the abuse. Rather, the deporting state fails to satisfy an obligation to protect.
► The International Court of Justice (bottom right) has interpreted the Genocide Convention to require states to protect people from acts of genocide committed by or in another state.
► The concept of responsibility to protect posits: (1) that each state must protect its population from certain atrocities, including atrocities committed by third parties; and (2) if one state fails to satisfy that obligation, it shifts to the international community.
► The International Law Commission (below left) has proposed a rule rendering states responsible where they delegate authority to an international organization that then violates rights. (photo credit) Under the proposal, a delegating state would be responsible even if the abuse were attributable only to the international organization.
In each of those examples, the state must protect someone from third-party abuse.

The entity committing the abuse may be a private actor, another state, or an IO. The critical point is that the duty-holding state may be responsible simply for standing by—for not satisfying an affirmative obligation to protect. The state need not participate in the abuse to be responsible.
Though the obligation to protect is prevalent, no generalized framework exists for appraising when states have it or what it requires.

Instead, decisionmakers prescribe and apply the obligation ad hoc — under different sources of law and for discrete groups of victims (e.g., children), harms (e.g., physical violence), or abusers (e.g., private individuals). As a result, states' practice is splintered and, at times, inconsistent or confused. My article State Bystander Responsibility, published earlier this year in the European Journal of International Law, seeks to remedy that problem by presenting a generalized framework on when states are and should be responsible for failing to protect people from third-party harm.

The framework explains the practice where it is uniform, and helps guide decisions where the practice is inconsistent or confused:
First, whether a state has the obligation depends on its relationship with the (actual or potential) abuser.

A duty-holding state must restrain third parties from committing abuse. Of course, the interest in protecting potential victims favors establishing that obligation. But varied considerations favor limiting when and how states assert their authority over third parties. The obligation thus requires a normative judgment: Given its particular relationship with the third party, are the state’s restraints desirable or overly intrusive? The practice provides considerable guidance on that question. A state generally must restrain third parties to whom it delegates governmental functions or who operate in its territory (or in territory under its control). By contrast, a state generally need not restrain third parties in other states. Broad assertions to the contrary do not reflect legally operative obligations. Consider, for instance, the responsibility to protect contention that all states must restrain any particular state which commits atrocities. Such an assertion is essentially unenforceable and in practice unenforced against particular bystander states.

Nevertheless, the general rule that states lack extraterritorial obligations to protect is subject to an important exception: A state may have that obligation where it substantially enables a third party to violate rights. In that event, the duty-holding state may or may not participate in the abuse under the traditional rules on attribution. But having enabled the abuser, the state must protect against its harm. A few examples:

► Serbia had to restrain the Bosnian Serbs in the ICJ's Genocide Case. (prior IntLawGrrls post)

► Russia had to restrain Georgian and Moldovan separatists that it supported.

► Turkey had to restrain the Turkish Cypriot administration that it propped up.

► And arguably at least, deporting states enable entities in the home country to violate rights, thus triggering obligations of non-refoulement.
Second, obligations to protect depend on the kind of harm caused. States must protect only against conduct that:

(1) causes serious physical or psychological harm; or

(2) affects someone because she belongs to a vulnerable group.

Treaty bodies sometimes assert that states also must protect against other conduct, especially where the abuser is a private actor. That assertion is inconsistent with substantial other practice. Indeed, the treaty bodies themselves apply the obligation more narrowly—and almost exclusively to conduct falling in the above two categories. Thus, states must restrain an employer who beats its employees (category 1) or discriminates on the basis of sex (category 2). But they need not restrain an employer from terminating an employee who is a bad worker or no longer needed. Yes, the termination affects the employee’s right to work. It does not trigger an obligation to protect because the state need not restrain the employer to protect its employees from termination. Rather, the state must try to fulfill the employees’ right to work by, for instance, offering them educational programs.
Finally, a state that has the obligation — because of its relationship with the third party and the severity of the harm — must take reasonable measures to restrain the third party. Reasonableness depends on context, but several factors inform whether particular measures are reasonable:

(1) the nature of the abuser (i.e., whether a private actor, another state, or an international organization);

(2) the nature of the harm;

(3) whether the practice specifically identifies the measures the state must take (e.g., requires criminal action) or leaves that determination to each state’s discretion;

(4) the scale of the problem; and

(5) the state’s capacity to take more effective measures. A duty-holding state is responsible if it takes either no measures or measures that are unreasonably lax to restrain the third party.

On August 30

On this day in ...
... 1924, the Permanent Court of International Justice, headquartered at the Peace Palace in The Hague (right), issued its judment on jursdiction in Mavrommatis Palestine Concessions Case (Greece v. United Kingdom). One passage read:

By taking up the case of one of its subjects and resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right — its right to ensure, in the person of its subjects, respect for the rules of international law.

Decades later the statement came under attack, in the First report on diplomatic protection, presented at a 2000 session of the International Law Commission. Special Rapporteur John R. Dugard characterized the passage as a "judicial blessing" of a legal "fiction," one that inter alia "provided a justification for military intervention or gunboat diplomacy."

(Prior August 30 posts are here, here, and here.)

Precautionary principle, anyone?

2 things jump to mind about the "Swamp Tour" my family and I took years ago through Louisiana's bayous:
► Try though we did, none of us caught even a glimpse of a 'gator.
► Even back then, those wetlands were mighty fragile.
Today the bayous that buffer New Orleans from the Gulf of Mexico are under siege. More than 200,000 gallons of oil a day are spewing into the Gulf as a result of an offshore rig explosion on April 20. (prior post) That's 4 million gallons and counting.
Already the environment is harmed. Tar balls, "sticky, dark-colored blobs," are washing up on beaches. So too dead animals -- turtles, fish, dolphins. Fishing families are out of work. These and other effects will be felt for years.
Nor is any sure solution in sight. Rather, as Rebecca posted, what's heard is one "Maybe this'll work?" after another. Televised computer-modeled animations of the (to date, failed) efforts make MouseTrap (left) look like serious business.
Odd, then, that not much seems to have been said so far about the precautionary principle.
As international environmental lawyers well know, that principle has origins from this passage in the 1992 Rio Declaration on Environment and Development:

Principle 15
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

In essence, the precautionary principle is a call for recalibration of cost-benefit analysis. When failure of an activity would cause a truly dire catastrophe, even the remotest possibility of that result requires the exercise of extra-special care. It's a rule of risk aversion.
But it can be costly, for its application may bar the activity, altogether or at least for the foreseeable future. And if the activity is something like drilling for oil, that obstacle means higher prices and lost profits.
Not surprising, then, that although the precautionary principle has retained some currency, it has not won full embrace.
It's positive law in City of San Francisco, but pretty much nowhere else in the United States. Westlaw cites only 10 federal cases that have used the term; none has applied it as a justiciable legal norm. Here's perhaps the fullest discussion, an explanation of why the court rejected a motion to dismiss that had invoked the principle:

The Plaintiffs' claims were based on the European Council's “Precautionary Principle” and the European Commission's “Science and Society Action Plan.” Neither document has been incorporated into domestic law, by international treaty or otherwise.

Sancho v. U.S. Dept. of Energy (D.Hawai‘i 2008).
And though the principle has applicability with regard to food, health, and the environment in the European Union, elsewhere abroad there's hesitation. What in 1992 was a "principle" has since been given a more discretionary phrasing -- "precautionary approach" -- by entities as varied as the International Law Commission, the International Tribunal of the Law of the Sea, and the WTO Appellate Body. (On the "subtle, but important, difference" between these terms, see Caitlyn's comment below.)
Approach? Principle? Whatever, the underlying idea seems like one that deserves consideration as the country reconsiders drilling in the wake of the Gulf Coast disaster. To be debated? A policy of requiring extra care before giving the go-ahead to something, when failure would cause damage too big to contain.
Call it Too Big to Fail.

4 Societies, 5 countries, 15 scholars & 1 address on the International Law Commission

Among the treats at 4 Societies: An insider's view of the International Law Commission.
4 Societies Workshop is the name given to the biennial scholars' roundtable cosponsored by a quartet of international law societies. The 1st took place in 2006 at Victoria University of Wellington, courtesy of the Australian and New Zealand Society of International Law. Thanks to the hard work of Professor Joanna Harrington and Professor Craig Forcese, both members of the Canadian Council of Law, the University of Alberta in Edmonton last week hosted the 2d. (Next stop, courtesy of the Japan Society of International Law: Kobe 2010.) Fifteen scholars from 5 countries presented in Edmonton (above); it was my honor to serve, along with American Society of International Law Executive Director Elizabeth Andersen, as a moderator and commenter.
Of special interest was the keynote address in which University of Ottawa Law Professor Don McRae, who'd been elected to the ILC in 2006, asked:

Is there a future for the International Law Commission?

A future, yes, he answered. But not necessarily the future foreseen when the ILC was established in 1947.

McRae began by listing some of the topics on the ILC's agenda:

► New draft articles on transboundary aquifers, about which IntLawGrrls just posted;

► A long-running study of treaty reservations;

► A study of how armed conflict affects treaties;

► Examination of whether the duty aut dedere aut judicare -- to prosecute or extradite -- derives solely from treaties or has become a norm of customary international law;

► A project on the responsibility of international organizations;

► Analysis of the law respecting the expulsion of aliens across state borders;

► Consideration of the immunity of state officials in the wake of cases like Pinochet and Democratic Republic v. Congo; and

► Examination of the extent to which law protects persons caught up in natural disasters like typhoons and earthquakes; that is, whether other states may intervene when the territorial state refuses to assist its own suffering nationals, as occurred earlier this year in Burma/Myanmar.

For most of its existence the Commission approached such problems always with an eye to codification -- to the drafting of treaties that would establish international rules as hard law. That goal seems more elusive, McRae said. Positing that the world is going through an "anti-treaty phase," during which "governments don't want to commit themselves to making things legally binding," McRae suggested that the ILC may find itself more and more in the business of creating soft law. He noted that draft articles articulating principles of law that states may choose to follow, like those on state responsibility and transboundary aquifers, are likely to have more global influence than a treaty that never enters into force.

McRae pointed to 2 other areas ripe for adaptation:

► Methodology. The Commission's work could be improved, he said, by greater consultation with experts outside the law. In this regard he lauded the outreach that Commissioner Chusei Yamada of Japan made to scientists in the course of developing the aquifer articles.

► Diversity. Anyone familiar with the pathbreaking work of Hilary Charlesworth, Christine Chinkin, and Shelley Wright will recall that in Feminist Approaches to International Law, 85 American Journal of International Law 613, 623 (1991), they underscored that no woman ever had sat on the 34-member Commission. That has changed a wee bit. Today there are 3 women Commissioners, Paula Escarameia of Portugal (above, middle), Marie G. Jacobsson of Sweden (above, left), and Hanqin Xue of China (right)-- a fact that prompted McRae's allowance that criticism of the ILC as lacking diversity "has a great deal of credibility in terms of gender."

Indeed.

Groundwater law courses U.N. currents

We've posted in the past on issues related to water -- its scarcity, the inescapable need for it, claims of right to it, and increasing attention to same. Well worth noting, then, is the initiative featured in a new ASIL Insight by Kerstin Mechlem (left), Lecturer at the Transitional Justice Institute, University of Ulster, in Northern Ireland.
Mechlem underscores the adoption last month by the United Nations' 60-year-old legal research arm, the International Law Commission, of draft articles for an international framework convention on transboundary aquifers; that is, on groundwater sources that cross national frontiers. (The draft articles are expected soon to be available here.)
After outlining the scope of the problem and events leading to adoption, Mechlem points to key aspects of the draft articles:
► the principle of equitable and reasonable utilization of water resources;
► the imposition of an obligation not to cause significant harm; and
► the imposition of an obligation to cooperate, by sharing information about water and entering agreements to protect water resources.
One novelty in the draft articles is the recognition of "the need to protect aquifers against harm, resulting, for example, from fertilizers or pesticide use or industry discharge," she writes.
The articles stop short of embracing the precautionary principle. The Rio Declaration on Environment and Development stated:

Principle 15
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The Rio Declaration was proclaimed in 1992, and Principle 15 has gained currency since then. Nonetheless, in the view of the ILC, precaution has not yet become a principle of customary international law. Mechlem writes: "Thus, the draft articles refer in Article 12 to a 'precautionary approach' rather than to the 'precautionary principle.'"
Mechlem, who served from 2002 to 2006 as a Legal Officer for the U.N. Food and Agriculture Organization, concludes her ASIL Insight by stating:
"Despite their shortcomings the draft articles are a significant step in the protection of transboundary aquifers." She looks forward one day to entry in force of "binding framework convention." (groundwater image credit)