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![Issue Twelve July 2018
20
The title of my talk is “Human Rights in Europe: an insider’s views.” I am to speak to you
about specific, selected, human rights issues dealt with by the Council of Europe. When I
left the U.K. to start my career as a ‘Eurocrat’ in Strasbourg - over 31 years ago - the world
was so different. Those were exciting times. We lived through an optimistic, indeed a
‘euphoric’ decade, subsequent to the rise of the SolidarnoĞþ movement and the fall of the
Berlin Wall.60
The situation is very different today: major human rights violations still occur
in a number of member states, for example, with respect to the situation in Ukraine and in
the North Caucasus. There is a terrorist threat which has led to abusive use - by state
authorities - of Article 15 of the European Convention on Human Rights (ECHR); look at
what is happening in Turkey right now.61
We are also confronted with renewed challenges:
Europe - the cohesion of which was already weakened by the financial crisis and austerity
measures - needs to absorb a major inflow of migrants, refugees and asylum-seekers; there is
an unhealthy upsurge of populism, intolerance, and Islamophobia; the rule of law has been
undermined in countries like Hungary and Poland, and certain parts of Europe are becoming
increasingly unstable, reminding us of the 1930s and developments which led to the atrocities
of the Second World War.
... And here I am, not to speak about these major challenges confronting us, but rather
to provide you with an in-house view of a selected number of issues I have been involved
in: I had the privilege of being intricately involved in the drafting of Protocol 11 to the
ECHR (which led to the creation of a full-time European Court of Human Rights (Court
or ECtHR) in Strasbourg);62
I helped set-up a confidential Committee of Ministers’ (CM)
monitoring mechanism, which an informed insider has recently called a ‘failed
enterprise’; and, since 2005, until my departure from the organisation last year, I was in
charge of the Legal Affairs and Human Rights Department of the Parliamentary
Assembly (the Assembly or PACE). It is principally this in-house experience, or at least
certain aspects of it, which I will speak to you about this evening.
2. The COUNCIL OF EUROPE, NEW DEMOCRACIES AND THE
DRAMATIC RESIGNATION – IN JUNE 1997 – OF THE DEPUTY
SECRETARY GENERAL
Let us be honest and accept the premise that the Council of Europe is no longer a privileged
club of relatively sophisticated and economically – more or less – comfortable states which
reflect liberal-democratic (Western) European standards and achievements of the early
1980s, when there were just over 20 member states. After the initial euphoria of the late
1980s and early 1990s we witnessed – on the perimeters of the organisation – the tragedies
of Bosnia and Kosovo. And even within the Council of Europe, major human rights
violations had occurred in South East Turkey, and several years later in Chechnya,
compounded by conflicts principally, but not exclusively, in the countries of the former
Soviet Union.
60
See D. Huber A Decade which made History. The Council of Europe 1989-1999 (Council of Europe
Publishing, 1999).
61
See, e.g., M. O’Boyle “Emergency Government and Derogation under the ECHR” [2016] 4
E.H.R.L.R. 331 and Parliamentary Assembly (PACE) document AS/Pol (2016)18 rev., Report on fact-finding
visit to Ankara (21-
23 November 2016) of the Committee on Political Affairs and Democracy’s ad hoc Sub-Committee on recent
developments in Turkey, 15 December 2016 http://website-pace. net/documents/18848/2197130/20161215-
Apdoc18.pdf/35656836-5385-4f88-86bd- 17dd5b8b9d8f.
62
See, e.g., “A major overhaul of the European Human Rights Convention control mechanism: Protocol No. 11”,
in Collected Courses of the Academy of European Law, Vol. VI, Book 2 (Martinus Nijhoff, 1997), pp. 121-
244. See also Ten Years of the ‘New’ European Court of Human Rights 1998-2008 (European Court of Human
Rights, 2008), testimony on pp. 63-64 available at http://www.echr.coe.int/
Documents/10years_NC_1998_2008_ENG. pdf.](https://image.slidesharecdn.com/ceccanewsletterissue12july-180728093820/75/Cecca-Newsletter-July-2018-20-2048.jpg)
![Issue Twelve July 2018
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We were in the minority. This is now history. Decision-makers in member State capitals
thought otherwise, with the result that today the ECHR has been ratified by all 47 member
states.
That said, permit me to recall that – after having set-up the Committee of Ministers’
confidential monitoring mechanism – Peter Leuprecht, then Deputy Secretary General,
resigned from the Council of Europe in June 1997 as Nº. 2 in the organisation, having
found as unacceptable the Committee of Ministers’ decision to invite Russia (during the war
in Chechnya) and Croatia (with President Tudjman’s refusal to co-operate with the Ex-
Yugoslavia Tribunal). His logic: yes, states should be welcome to the Council of Europe, but
only if they ‘have clean hands’ and are really willing and able to abide by the principles
upon which the organisation is based. Leuprecht thought that these states fell woefully
short of the mark as concerns the three Council of Europe basic pillars “…values were being
watered down. That’s why I left. I don’t believe you can be a dissident and stay in
government.”67
You may or may not agree with Leuprecht’s stand, but his resignation was a dramatic event
which had a profound impact in Strasbourg and beyond. It also confirmed, to me, that
enlargement to the East – from just over 20 to now 47 states – may have been too
precipitate but appeared, at the time, to be politically inevitable.
It was recognized by political leaders at the time, in State capitals, that ‘monitoring’ par
excellence, by a newly created full-time Human Rights Court in Strasbourg, supplemented
by other key (human rights) monitoring mechanisms, would not suffice. Hence the need to
ensure serious political monitoring so that basic values and standards of the organisation not
be diluted.68
3. THE COMMITTEE OF MINISTERS’ CONFIDENTIAL POLITICAL
MONI- TORING
As a detailed overview of the organisation’s core monitoring mechanisms, including that of
the Parliamentary Assembly, will shortly be published by Oxford University Press in a
book entitled The Council of Europe. Its Laws and Policies,69
I will limit my observations
to the less known monitoring carried out by the Committee of Ministers, the executive
organ of the organisation – in effect, the Foreign Ministers of member states, represented
by their ambassadors based in Strasbourg.
67
See “Reflections on a remarkable period of eleven years: 1986 to 1997” in Liber Amicorum Peter Leuprecht
(Bruylant, 2012, Texts collected by
O. Delas and M. Leuprecht), pp.105-115, at pp. 114-115.
68
Obviously, the Court in itself does not carry out monitoring, but the term is here used generically to
encompass functions entrusted to the Committee of Ministers in supervising the Court’s judgments:
Article 46 §2 ECHR. ‘[S]erious political monitoring’ also includes monitoring carried out, in
particular, by the Parliamentary Assembly, whose work in this respect merits separate and in-depth
analysis. See, in this connection, B. Haller “L’Assemblée parlementaire et les conditions d’adhésion au Conseilde
l’Europe’” in LawinGreaterEurope. Towards a Common Legal Area. Studies in honourofH.Klebes(Kluwer Law
International, 2000, edited by B. Haller, H.-C. Krüger & H. Petzold), at pp. 27-79 and recent texts
issued on this subject by the Assembly, Resolution 2149 (2017), of 26 January 2017, based on the annual
report of its Monitoring Committee’s activities from September 2015 to December 2016, document
14213, of 6 January 2017 http://assembly.coe.int/nw/xml/XRef/Xref-
DocDetailsen.asp?FileID=23246&lang=en
All Assembly documents cited in this Opinion can be accessed on http://assembly.coe.int
69
The Council of Europe. Its Laws and Policies,
Oxford University Press, 2017, edited by
S. Schmahl & M. Breuer. See, in particular, chapter 7 on the Parliamentary Assembly, written by P. Leach, at
pp.166-211.](https://image.slidesharecdn.com/ceccanewsletterissue12july-180728093820/75/Cecca-Newsletter-July-2018-22-2048.jpg)
![Issue Twelve July 2018
24
with the help of the Secretary General, or to revert back to the procedure in which ‘areas
of concern,’ in specific countries, are actually clearly, unequivocally specified?74
In this respect, it may be worth recalling a rare positive example of solid, effective
monitoring on the subject of ‘freedom of expression’, based on work undertaken by two
teams of experts in 1997-2000 and 2001-2002. The latter group of seven independent
experts, nominated by the then Secretary General, undertook in situ fact-finding
monitoring missions on the theme of freedom of expression prior to determining “very
serious concern” with respect to the situation in Moldova, Russia, Turkey and Ukraine, as
well as “serious concern” with respect to the situation in five ‘new democracies’ (Albania,
Azerbaijan, Bosnia- Herzegovina, Georgia and Romania) concerning, at that time, 44
member states of the Council of Europe.75
These ‘confidential’ Committee of Ministers
documents have now found their way into the public domain but are still little known to
persons outside the organisation, despite the devastatingly negative conclusions reached by
the experts, based on conclusions drawn up in a key document issued in 1997 – in which it
was specified that: “Where, according to this report, a situation gives rise to very serious
concern under Article 10 of the [ECHR], it is difficult to confirm that the freedom of
expression of the press really exists in any meaningful sense [and that …] it cannot be said
that a democratic system is fully established in these countries.”76
One of the distinguished experts who had taken part in the in situ fact-finding missions,
David Anderson, has honoured me with his presence today. The other experts were Denis
Barrelet, Jochen Frowein, the late Karol Jakubowicz, Marie McGonagle, Monica Macovei
and Andrzej RzepliĔski.
Permit me to provide you with another good example of how the Committee of Ministers’
monitoring worked, when the Committee accepted the setting-up of an ad hoc monitoring
procedure – with the appointment of three independent experts, Stefan Trechsel, Evert
Alkema and Alexander Arabadjev – in respect to a promise made by the Azerbaijani
authorities to the Parliamentary Assembly: that, upon joining the organisation, they would
release or re-try those prisoners regarded as ‘political prisoners’ by human rights protection
organisations.77
This initiative set in motion, in February 2001, an incredibly complex and
protracted procedure that consisted in assessing two separate lists of 716 and 212 alleged
political prisoners – which took over three years of intensive work to complete. More
importantly, it resulted in the release and re-trial of very many persons.78
Those of us with a legal background may find political monitoring – including ‘naming and
shaming’, as the Parliamentary Assembly often does – as not the most appropriate bedfellow
in an Organisation which credits itself with sophisticated legal mechanisms to prevent or
74
This, in the eyes of certain informed observers, may be a somewhat naïve hope, indeed wishful thinking, given
the prevailing situation in Russia, Turkey and Ukraine, and taking into account the difficulties the EU has with
‘Rule of Law monitoring’ in respect of Poland. But the point I am trying to make is this: in many quarters the
credibility of the Council of Europe is being put into question which necessitates
- now - a more focused form of political monitoring by the Organisation’s executive organ.
75
Documents CM/Monitor (2002)25 and CM/ Monitor(2003)8final2,availableathttps://rm.coe.
int/CoERMPublicCommonSearchServices/Disp layDCTMContent?documentId=0900001680 5dfa38
76
Document CM (97) 219, § 92 (cited in Appendix II of document CM/Monitor (2002) 25).
77
Opinion No. 222 (2000), § 14 iv b, of 28 June 2000, available at http://assembly.coe.
int/nw/xml/XRef/Xref-XML2HTML-en. asp?fileid=16816&lang=en
Azerbaijan acceded to the Council of Europe on 25 January 2001 and ratified the ECHR on 15
April 2002.
78
For more details see Council of Europe documents SG/Inf (2001) 34 & Addenda and SG/Inf (2004) 21
and Addendum, as well as S. Trechsel “The notion of ‘political prisoner’ as defined for the purpose of
identifying political prisoners in Armenia and Azerbaijan” in vol. 23 HRLJ (2002), pp.169-176](https://image.slidesharecdn.com/ceccanewsletterissue12july-180728093820/75/Cecca-Newsletter-July-2018-24-2048.jpg)
![Issue Twelve July 2018
25
determine human rights violations.
Yet, when questioning or criticizing the utility of such political monitoring, one must take
into account realpolitik – what can realistically be achieved. Permit me to use the analogy of
an elastic band to suggest that political monitoring does have its rightful place in the
Council of Europe – be it in the Committee of Ministers or in the Assembly. The
opportunity must be seized to ‘stretch’ a member state to the limits of what is possible at a
given moment of time, so as to ensure compliance with its human rights commitments,
without the elastic band snapping! In other words, if the elastic band snaps, and a state is
excluded from the democratic club, the state concerned will no longer have an interest in
abiding by the Council’s human rights standards. If you had been one of the persons freed
by the Azerbaijani authorities, or a family member of a person released from prison, would
you complain? If, for different reasons, Azerbaijan or Russia were suspended from
membership of the organisation, would such a step be beneficial or detrimental to the
populations of the countries concerned?
Food for thought.
Just let me add a post scriptum to my comments about Azerbaijan: many of you are aware of
the ‘Caviar Diplomacy’ publications of the European Stability Initiative. 79
But not
necessarily of the Azerbaijani Foreign Minister’s inaccurate, not to say devious, reply to a
question about political prisoners in his country which he made before the Parliamentary
Assembly back on 2 October 2014, when he said “When the Parliamentary Assembly of the
Council of Europe creates criteria to define political prisoners, I can respond to your
question, otherwise it is very hypothetical.” His answer was, of course, completely wrong, as
such a definition had already been adopted by the Assembly two years earlier.80
But what makes matters worse, is the position taken by the Committee of Ministers: when
the CM was asked to ensure that its, at the time, Azerbaijani chairperson provide a full
answer to a written question posed in this connection, the reply of the organisation’s
executive organ was that “owing to a lack of consensus” the Assembly would not get a reply
to the question posed. In other words: as we have no unanimity – the question will simply
remain unanswered!81
Let me summarise what I have said so far. The Council of Europe effectively doubled after
the end of the Cold War. There were hesitations as regards some candidates, but in the
end the political choice was made to admit all.82
In order to make up for the potential
dilution of Council of Europe standards, new forms of monitoring were created. Some of
these were quite successful, but one cannot deny that it has been an uphill struggle and the
result, in certain cases, is still far from satisfactory.
79
Accessible at http://www.esiweb.org/ (two reports on ‘caviar diplomacy’: http://www.
esiweb.org/pdf/esi_document_id_131.pdf, of 24 May 2012, and http://www.esiweb.org/ pdf/ESI%20-
%20The%20Swamp%20-%20 Caviar%20Diplomacy%20Part%20two%20-
%2017%20December%202016.pdf, of 17 December 2016).
See also the Assembly’s Bureau decision to set up an external independent investigation to look into allegations
of corruption within the institution, at http:// assembly.coe.int/nw/xml/News/News-View-
EN.asp?newsid=6514&lang=2&cat=13, decision taken on 27 January 2017
80
Resolution 1900 (2012): the definition of political prisoner, adopted on 3 October 2012, accessible at
http://assembly.coe. int/nw/xml/XRef/Xref-XML2HTML-en. asp?fileid=19150&lang=en
81
See Assembly document 14089 “Unanswered questions by the Committee of Ministers on […] political
prisoners in Azerbaijan,” of
18 June 2016, accessible at http://assembly. coe.int/nw/xml/XRef/Xref-XML2HTML-en.
asp?fileid=22828&lang=en
82
With the exception of Belarus](https://image.slidesharecdn.com/ceccanewsletterissue12july-180728093820/75/Cecca-Newsletter-July-2018-25-2048.jpg)
![Issue Twelve July 2018
26
This is where we stand today.
4. THE PARLIAMENTARY ASSEMBLY
The Assembly, composed of national parliamentarians, elects judges to the European Court
of Human Rights and the Council’s Commissioner for Human Rights. Apart from these
important tasks, as one of the principal organs of the organisation, it is nevertheless often
perceived as a deliberative body of little relevance: from time to time, it ‘names and shames’
states which violate human rights; but it lacks the backbone to undertake serious, thorough
investigations. This is a simplistic and erroneous perception of the way it functions.
Actually, its reports can, and often do have a profound effect on human rights standards in
Europe. Suffice to recall its work – over the years– on the implementation of Strasbourg
Court judgments (the effectiveness of which Alice Donald and Philip Leach have recently
analysed in their excellent book: Parliaments and the European Court of Human Rights83
).
In addition, to illustrate the Assembly’s potential impact, I’d like to provide you with
examples of a number of outstanding inquiries led by Dick Marty, the Swiss Senator.
Take, for example, the Assembly’s Resolution of January 2011 on inhuman treatment of
people and illicit trafficking in human organs in Kosovo,84
which led directly to a four-year
in-depth criminal investigation conducted by the EU’s Special Investigative Task Force.
The evidence investigated – based on Senator Marty’s report – was of sufficient weight to
permit the filing of an indictment, and merited the recent creation of the Kosovo Specialist
Chambers and Prosecutor’s Office, whose Seat Agreements, at The Hague, have come into
effect as of 1 January 2017.85
Another example is the 2007 report relating to UN and EU Terrorist Blacklists.86
UN
Security Council Chapter VII measures, including the use of ‘smart sanctions,’ are obviously
effective and important tools in combatting international terrorism. Yes, but what if, by
imposing such measures on individuals, ECHR standards are infringed? Is it acceptable for
persons to remain on terrorist blacklists for more than 10 years, in a situation in which
prosecuting authorities have not found a shred of evidence against them?
If indeed this happens, how can one call into question Security Council resolutions that
appear to flout basic human rights norms, in the light of Article 103 of the UN Charter
which clearly specifies that in the event of a conflict between Charter obligations and
other international agreements, the Charter obligations must prevail?.87
This is an issue which has been litigated in a number of fora: suffice for me to cite the
Luxembourg Court’s Kadi case of 2008,88
as well as the Strasbourg Court’s judgments in
83
Oxford University Press, 2016
84
Resolution 1782 (2011) Investigation of allegations of inhuman treatment of people and illicit trafficking
in human organs in Kosovo, of 25 January 2011, based on document 12462, available at http://assembly.
coe.int/nw/xml/XRef/Xref-XML2HTML-en. asp?fileid=17942&lang=en
85
See website https://www.scp-ks.org/en
86
Resolution 1597 (2008) and Recommendation 1824 (2008) United Nations Security Council and European
Union Blacklists, adopted on 23 January 2008, based on document 11454, available at http://assembly.coe.
int/nw/xml/XRef/Xref-DocDetails-en. asp?FileID=11749&lang=en.
87
The full text reads: “In the event of a conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other international agreement, their obligations
under the present Charter shall prevail.”
88
Kadi and Al Barakaat v Council of the European Union [2008] ECHR I- 6351, of 3 September 2008](https://image.slidesharecdn.com/ceccanewsletterissue12july-180728093820/75/Cecca-Newsletter-July-2018-26-2048.jpg)
![Issue Twelve July 2018
29
that “visitors” had been busy installing or removing some sort of device in a cavity in the wall
when they had been disturbed by a noisy neighbor.
… ‘Ceci n’était pas un cambriolage normale’ was the comment of the somewhat baffled
policeman who came to look into this rather unusual ‘burglary’ … a mysterious occurrence
we may possibly be able to shed more light on once all the litigation on the subject has come
to a close before the Strasbourg Court.
5. ANIN-HOUSESUCCESSSTORY
The in-house ‘success story’ is a rare example of how two eminent human rights experts,
Antonio Cançado Trindade, former President of the Inter-American Court of Human
Rights, and now a judge on the International Court of Justice at The Hague, and Jochen
Frowein, at the time Director of the Max Planck Institute for Comparative Public Law
and International Law in Heidelberg, and previously First Vice-President of the European
Commission of Human Rights, were able to nip-in-the-bud, as it were, the newly created
Commonwealth of Independent States (CIS) Convention on Human Rights, adopted in
Minsk on 26 May 1995 and in force since 11 August 1998.
This Minsk Human Rights Convention was perceived as a surreptitious attempt to
undermine the effectiveness of the European Convention on Human Rights. Why?
Because, if principally Russian-speaking individuals were to bring their applications before
the Minsk CIS Human Rights Commission, their (subsequent) applications before the
Strasbourg Court could simply be time-barred.
In the summer of 1995, in less than six months after the adoption of the CIS Human Rights
Convention, the then Secretary General of the Council of Europe, Daniel Tarschys, was
able to obtain, from the experts, two separate highly critical analyses of the CIS
Convention’s control mechanism, indicating the total lack of independence of the CIS
Human Rights Commission, the body designated to monitor States Parties’ human rights
obligations under the Convention. As Judge Cançado Trindade wrote: “The fact that the CIS
Human Rights Commission… is composed of ‘representatives of the Parties’, who are appointed (not even
elected) … is [to me] a cause of great concern”.100
The experts’ reports had a significant political impact: the Parliamentary Assembly was
alerted in time, permitting it to add appropriate ‘provisos’ into texts relating to membership
applications of countries from the ex-Soviet Union, who were also members of the CIS.101
As to whether the experts’ views had an influence on the Strasbourg Court’s decision to
refuse, nine years later, in June 2004, the Committee of Ministers’ request for an Advisory
Opinion to determine whether the CIS Human Rights Commission can be regarded as
“another procedure of international investigation or settlement” within the meaning of Article 35 §
2 (b) of the Convention, I simply do not know.102
100
Analyses of the Legal Implications for States that Intend to Ratify both the European ConventiononHumanRights
anditsProtocols and the Convention on Human Rights of the Commonwealth of Independent States (CIS), by A.A.
Cançado Trindade and J.A. Frowein, Council of Europe document SG/INF (95) 17, of 20 December 1995,
§ 98 of analysis of Cançado Trindade, also published in Vol. 17 HRLJ (1996), pp. 157- 184, at p.179
101
See, in particular, § 11 (e) of Opinion 188 (1995) with respect to Moldova, of 27 June 1995; § 12 (iii) of
Opinion 190 (1995) with respect to Ukraine, of 26 September 1995, and § 10 (xv) of Opinion 193 (1996)
with respect to Russia, of 25 January 1996 (available on the Assembly’s website and in Vol. 17 HRLJ
(1996), at pp. 157-159).
102
The Court considered that it had to leave this matter open, as the adoption of an advisory opinion might
prejudice, at a future date, an examination of an individual or inter-state application which could entail an
analysis of, inter alia, the independence and impartiality of the CIS Commission, the nature of this](https://image.slidesharecdn.com/ceccanewsletterissue12july-180728093820/75/Cecca-Newsletter-July-2018-29-2048.jpg)
![Issue Twelve July 2018
34
4. Law of the Sea
Editor’s Comment on Z. Zheng, Legal Effect of the Chinese
Traditional Maritime Boundary Line
Authored by Haiyang Yu and Dr Lijun Zhao121
The South China Sea has been long disputed and the Arbitration has demonstrated escalation
of the disputes. The issue is beyond public international law and law of the sea, because
according to UNCTAD statistics, over 70% (by volume) Eurasia trade and carriage of goods
go via this route. That explains why the 2015 Arbitration attracted not only the coastal
countries but also all trading counties such as the USA, the UK and Japan.
The law of maritime delimitation provides rules over disputed marine spaces where claims of
neighbouring coastal states overlap, and it makes sure those coastal states enjoy the
legitimate uses of maritime spaces efficiently.
What makes the law of maritime delimitation fascinating and different when compared with
the rest of law of the sea, is that it has developed via international courts and tribunals.
According to equitable principles, which became customary law, is at the heart, recent case
law has established a new ‘three-stage approach’ or ‘equidistance/relevant circumstances
method’ for maritime delimitation (2009 Romania Ukraine single maritime boundary [ICJ]; 2012
Myanmar/Myanmar case [ITLOS]). Relevant circumstances, including both geographical
factors and non-geographical factors (such as Historic rights), are taken into account in order
to achieve the ‘collective equity’ in maritime delimitation.
In 2016, the tribunal of the South China Sea Arbitration ruled against China, saying there was
no legal basis for China to claim its historic rights over the South China Sea (hereinafter
‘CSC’) based on so-called ‘nine-dash line’ or the ‘CSC dotted line’. The Chinese government
was not surprisingly rejected the ruling as ‘null and void’ as it didn’t show up at the whole
hearing procedure at all.
As far as the ‘nine-dash line’ is concerned, it was drawn on the map of SCS by the Chinese
government to make the claim of delimitation in 1947. However, this map with ‘nine-dash
line’ has been challenged for its validity under international law of the sea for years. Since
China’s absence at the South China Sea Tribunal, it did not give us the chance to know China’s
position and reasons on the map. Dr Zhihua ZHENG, Associate Professor, Director of Joint
Institute for Maritime Law and History at East China University of Political Science and
Law (ECUPL), discussed the legal effect of this map in his article ‘Legal Effect of the Chinese
Traditional Maritime Boundary Line (2013) 4 AJIL 2’. Relevant questioned factors in view of the
map by scholars and coastal states, such as ‘the intent of the State reflected by the map,
neutrality of the cartographer, technical accuracy, consistency of the cartographic material
and recognition and acquiescence by the international community’, were discussed in this
paper.
To read the full text of this article, have access for free from CECCA’s blog via the link
below:
https://ceccalondon.wordpress.com/2018/05/30/article-legal-effect-of-the-chinese-traditional-
maritime-boundary-line/
(To read more articles published in CECCA’s blog, please click the link below:
http://cecca.org.uk/blog)
121
Haiyang Yu LLM(Rotterdam), Deputy Editor-in-Chief, CECCA; Dr Lijun Zhao, co-Dounding Director of
CECCA, Lecturer in Law (Assistant Professor Equivalent) at Middlesex University London.](https://image.slidesharecdn.com/ceccanewsletterissue12july-180728093820/75/Cecca-Newsletter-July-2018-34-2048.jpg)
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Cecca Newsletter July 2018
- 1. Issue Twelve July2018 1 CONTENTS 1.Special Observer New insights into China’s Maritime Silk Road…………..…2 2. Academic Frontier Blockchain-based Bill of Lading: Analysis of the technical and legal aspects of blockchain technology in the Shipping Industry……………………………………………………...9 3. Human Rights Human Rights in Europe: An Insider’s Views……………..19 4. Law of the Sea Editor’s Comment on Z. Zheng, Legal Effect of the Chinese Traditional Maritime Boundary Line………………………………...34 5. News in brief 5.1 The State Council of China intends to implement new policy in three main Free Trade Zones (Guangdong, Tianjin and Fujian) to further develop the shipping industry. ………………………………………………………………....35 5.2 China established two International Commercial Courts – in Shenzhen and Xi’an- to provide a better business environment for ‘B&R Initiative’ and to establish a diversified dispute resolution mechanism composed of litigation, arbitration and mediation ..…….35 5.3 The Negative List (2018) to identify sectors and businesses that are off-limits for investment in China, released by the State Council of P.R. China, will come into effect on 30th July 2018……………………………………….35 5.4 IMO high-level forum ‘IMO 70: Our Heritage– Better Shipping for a Better Future’ was held on 15th May in London………………………………………………..…………………..35 6. Brief Introduction – Senior Consultant of CECCA Prof. Yash Tandon……………………….……………………........36 CECCA NEWSLETTER Publisher: CECCA Editorial Department Publishing Directors: Dr. Lijun Zhao, Shengnan Jia Executive Editor: Haiyang Yu CECCA China-Europe Commercial Collaboration Association Professional Consultancy on Legal, Trade, Finance and Policy Matters. London, United Kingdom Contact www.cecca.org.uk contact@cecca.com.cn CECCA LinkedIn Page www.linkedin.com/company/cecca CECCA on Twitter https://twitter.com/CECCA_London CECCA on Facebook We sincerely invite our readers to visit and subscribe at CECCA website and follow us on LinkedIn to keep up-to-date with our newsletter, events and other information.
- 2. Issue Twelve July2018 2 1. Special Observer New insights into China’s Maritime Silk Road Authored by Richard Scott1 It is a concept which could boost global seaborne trade by assisting economic progress in many countries. China’s 21st Century Maritime Silk Road has attracted great interest internationally, intensified by other possible impacts of the plan. During the past twelve months there has been progress, as well as setbacks, and the main features have become clearer. Together with its land-route counterpart the Silk Road Economic Belt, the Maritime Silk Road forms part of China’s Belt and Road Initiative (B&RI), formerly referred to as One Belt One Road. This grand project has huge economic and strategic implications for the numerous countries involved. Just over a year ago interest was amplified by a conference of nations and organisations, hosted in Beijing by the Chinese government to explain and discuss the B&RI and encourage involvement. Since then there have been many news items about various aspects. Assisting evaluation of the continuing process, two new analyses were published recently. These look specifically at the Maritime Silk Road part of the B&RI and cast a fresh light on how it is evolving, its effects and implications regionally and globally: l China’s Maritime Silk Road, Strategic and Economic Implications for the Indo-Pacific Region Center for Strategic & International Studies (CSIS), Washington DC, March 2018, Nicholas Szechenyi (ed), Michael J Green, et al https://www.csis.org/analysis/chinas-maritime-silk-road l Blue China: Navigating the Maritime Silk Road to Europe European Council on Foreign Relations (ECFR), Policy Brief, London, April 2018, Mathieu Duchatel and Alexandre Sheldon Duplaix http://www.ecfr.eu/publications/summary/blue_china_navigating_the_maritime_silk_road _to_europe These analyses are offered by reputable think-tanks, featuring scholarly research. Although influenced by and reflecting to varying extents, respectively American and European 1 Richard Scott, Senior Consultant, CECCA; Associate, China Centre (Maritime), Solent University and managing director, Bulk Shipping Analysis A version of this article was published by Hellenic Shipping News Worldwide, 12 June 2018 https://www.hellenicshippingnews.com/new-insights-into-chinas-maritime-silk-road/
- 3. Issue Twelve July2018 3 viewpoints, valuable insights coupled with thought-provoking ideas and assessments are contained.2 The principal rationale for the Belt & Road Initiative, as promoted by the Chinese government, is to improve connectivity between China and a broad band of Eurasian territory, mainly by upgrading and expanding transport and other infrastructure.3 Along the Maritime Silk Road, a route or routes extending from China through Southeast Asia, Oceania, the Indian Ocean, Middle East and East Africa into the Mediterranean Sea, enhancing port facilities is a particular focus. Previous studies have highlighted the need for greater investment in such infrastructure in many developing and emerging economies in this area.4 Contrasting perceptions Plans to strengthen connectivity are not the only aspect of the Maritime Silk Road attracting much attention. Political and strategic issues and implications are considerations for many countries involved or affected. The CSIS analysis underlines the “growing questions about the economic viability and the geopolitical intentions behind China’s proposals” and asks whether port and other projects in the Indo-Pacific region are economic or military in nature.5 It concludes that MSR projects are neither purely military nor purely commercial and that China’s approach is “probably evolving”. 6 A broadly international viewpoint is adopted in this evaluation; an overtly American perspective is not prominent in the report. By contrast the ECFR study, as implied by its title, places a European perspective centrally. The tone is set at the outset when it is declared in the summary that “China’s Maritime Silk Road is about power and influence...”7 The study’s introduction section contends that “economics may be its main driver, but the Maritime Silk Road is also about naval power and international influence and forms part of (president) Xi Jinping’s broader national strategy”.8 This theme is pervasive throughout the report. Perceptions of a European reluctance to endorse China’s project are emphasised in the ECFR study. According to the authors, the “romance of the Silk Road has won over few players in Western Europe”.9 Scepticism in Europe is explained as reflecting three influences: (a) an unconvincing argument by China about shared prosperity, (b) a prevailing sense that Europe will derive limited advantages from the MSR, and (c) divided European opinion about the entire Belt & Road Initiative. These influences have led to “passive scepticism”. The report does question whether this attitude is justifiable, but contends that the B&RI “is designed to help China tilt the global balance of power in its favour”.10 Prominent infrastructure projects Included in the CSIS report are detailed evaluations of three major port infrastructure projects sponsored by China along the Maritime Silk Road - Kyaukpyu (Myanmar), Hambantota (Sri Lanka) and Gwadar (Pakistan). Another major project on the same route – 2 The CSIS analysis was prepared by a group of ten authors, while the ECFR analysis was prepared by two. 3 Maritime transport connectivity, especially in international container services, is a particular focus of research by the United Nations Conference on Trade and Development. A chapter in UNCTAD’s Review of Maritime Transport 2017 (Geneva: UNCTAD, October 2017, 99-112) provides a detailed discussion of this topic. 4 Asian Development Bank (2017), Meeting Asia’s Infrastructure Needs (Manila: ADB), February, xi, xiii 5 Green, Michael J (2018), ‘Foreword’, in Szechenyi, Nicholas (ed) China’s Maritime Silk Road, (Washington DC: Center for Strategic and International Studies), March, 1 6 Green, Michael, ‘Foreword’, 3 7 Duchatel, Mathieu & Duplaix, Alexandre Sheldon (2018), Blue China: Navigating the Maritime Silk Road to Europe (London: European Council on Foreign Relations), April, 1 8 Duchatel & Duplaix, Blue China, 4 9 Duchatel & Duplaix, Blue China, 6 10 Duchatel & Duplaix, Blue China, 8-9
- 4. Issue Twelve July2018 4 Chabahar (Iran), sponsored by India - is also examined because it is in close proximity to Gwadar and is often viewed as a manifestation of strategic competition between India and China. Below are brief descriptions of the projects, derived from the CSIS study and from other sources.11 At Kyaukpyu, a coastal town in Myanmar’s Rakhine State, Chinese companies have agreed to develop a deep-sea port and adjacent industrial area. Already this location is the terminus for twin pipelines to Kunming in China’s Yunnan Province. The gas pipeline, completed five years ago, carries gas from Myanmar’s offshore Shwe field, while the parallel oil pipeline which became operational last year carries imported crude oil to a new refinery in Kunming. The project enables China to reduce dependence on the sea route via the Straits of Malacca, seen as a chokepoint vulnerable to disruption. When new road and rail connections are finished, this route may assist development of China’s inland western provinces. The port of Hambantota on Sri Lanka’s southern coast was a small fishing village until a few years ago when the previous national government, with Chinese financing, began transforming it into a deep-sea port. It is situated close to the long-established major port of Colombo, which has not reached capacity and has plans for major expansion, complicating Hambantota’s progress from an under-utilised facility at present. As a consequence of the need to reduce the country’s high indebtedness, in July 2017 a controlling equity share plus a 99-year operating lease was acquired by a Chinese port operator, China Merchants Port Holdings. In Pakistan the port of Gwadar on the Makran coast west of Karachi has been developed in recent years as a gateway to the China-Pakistan Economic Corridor (CPEC). Projects within CPEC will be facilitated by road links through Pakistan to Kashgar in China’s Xinjiang Province, and there are plans for rail and pipeline links. Gwadar is located near the junction of the Arabian Sea and Gulf of Oman close to international shipping routes. Its transformation from small fishing villages into a major port being extended in phases began over a decade ago. In 2013 it became effectively a Chinese port when a new operator, China Overseas Port Holdings, obtained the management contract, and a 40-year lease has been agreed. A port which is relevant to, but not part of the MSR project is Chabahar in Iran. The relevance stems from its geographical position along the same stretch of coast and in close proximity to Gwadar, less than two hundred kilometres distant. Of particular significance is that India is assisting Iran to develop Chabahar, reflecting the Indian Government’s infrastructure investment strategy and intention of gaining access to Central Asia. The upgraded port is expected to be operational by the end of 2018, and India has committed to building a free trade and industrial zone and new rail connections. Economic arguments The CSIS study attempts to rigorously gauge the economic significance of the Maritime Silk Road. Although the Chinese government contends that the purpose of the Belt & Road Initiative is to enhance regional and global integration and boost economic well-being and macro-economic growth in connected countries, motivations for port investments are often challenged Three criteria for assessing the economic viability of port infrastructure projects are adopted in the CSIS analysis: proximity to shipping lanes; proximity to existing ports; and hinterland connectivity or connections to larger developments inland. The conclusion is that the three 11 see also Scott, Richard (2017), China’s Belt and Road Initiative: rearranging global shipping? and An enlarging embrace for China’s Belt and Road Initiative (Brentwood: Bulk Shipping Analysis), 5 June, partly published by Hellenic Shipping News, 6 June, http://www.hellenicshippingnews.com/chinas-belt-and-road-initiative-rearranging- global-shipping/
- 5. Issue Twelve July2018 5 MSR projects reviewed are not entirely aligned with economic objectives, especially connectivity. According to the authors of this chapter “Hambantota, Gwadar, and Kyaukpyu are all advertised as engines of development for historically underdeveloped areas. As rural areas, they are less connected to broader transportation networks.”12 Other aspects of Chinese port investment along the MSR routes are discussed in the ECFR analysis. The authors of this paper suggest that “operating port terminals is a source of predictable and stable return on investment for Chinese conglomerates...” 13 This characteristic of profitability provides an incentive for investing directly in port development projects, and also into port and terminal operations and management. Port and terminal management is a prominent feature in Hambantota and Colombo, Gwadar, Djibouti and Piraeus. During 2016 and 2017 there was a surge in Chinese companies acquiring equity stakes in port management companies around the world.14 Some were within the MSR as usually defined, while others were elsewhere. Among notable investments of this type were Rotterdam container terminal, container terminals in Valencia and Bilbao, Vado Ligure and Khalifa Port. Implied consequences Strategic objectives are sometimes deduced, anticipating use of ports for naval activities related to security operations. There have been many suggestions that all three ports within the MSR reviewed above could become bases for the Chinese navy or, at least, could be used for this purpose in times of conflict.15 Apart from brief visits by individual Chinese navy warships, a common practice in numerous ports around the world, evidence validating the theory has been limited. However, the CSIS study contends that “there is no question that the infrastructure is being created with dual- use purposes in mind”.16 The ECFR study concurs, suggesting that “it is...a matter of the right conditions being met rather than of whether China will proceed to build new ‘overseas logistical facilities’ for its navy”.17 A concern for the international community and for the host country is the leverage potentially gained by China when it finances B&RI port and other infrastructure. Heavy indebtedness may enable more pressure to be exerted on the government of a B&RI partner, possibly resulting in economic dependency which could be exploited for strategic purposes. This perception has been seen to cause political unrest or, at least, opposition within host countries. In one prominent case where debt became overwhelming, China acquired the assets. As already mentioned, Sri Lanka’s government has allowed ownership of Hambantota to be transferred to a Chinese state-owned company, which has acquired a controlling equity stake in the port and an extended operating lease. Focusing on trade between China and the European Union, the ECFR study suggests that it is beneficial for Europe to create conditions for continuous growth in trade movements. 12 Funaiole, Matthew & Hillman, Jonathan (2018), China’s Maritime Silk Road, 24 13 Duchatel & Duplaix, Blue China, 14 14 Port Strategy (2017), ‘Lifting the curtain on Chinese port investment’, Hellenic Shipping News, 4 October; Lloyd’s List (2017), Chinese appetite for global port assets remains strong, 19 September; Forbes (2017), ‘China’s seaport shopping spree: what China is winning by buying up the world’s ports’, Hellenic Shipping News, 11 September; Financial Times (2017), China investment in overseas ports hits $20bn in show of maritime clout, 17 July; Lloyd’s List (2017), Chinese port players to rival global giants within 10 years, 13 July, 15 Some scholars have argued that China is seeking to dominate the Indian Ocean region; others have argued that attempting to secure supply lines against potential disruption is a natural consequence of expanding trade. 16 Cooper, Zack (2018),’Security implications of China’s military presence in the Indian Ocean, China’s Maritime Silk Road, 27 17 Duchatel & Duplaix, Blue China, 33
- 6. Issue Twelve July2018 6 However, the authors argue that Chinese investment in port infrastructure involves risks for recipient countries. A possible positive aspect is reducing the cost of trade for all parties. But a potential negative aspect in the long term may be Chinese companies’ ability to set prices and control the terms of economic exchange with trade partners (selecting business partners).18 Box 1 Embracing China’s blue water navy Over the past decade China’s navy, the People’s Liberation Army (PLA) Navy has rapidly developed its capability. Previously it was largely confined to the East Asian area but now it is a so-called blue water navy, denoting a maritime defence and security force’s ability to operate globally in international waters.19 Chinese PLA Navy aircraft carrier Liaoning For this purpose, a necessity is suitable access to ports for naval ships to obtain supplies and conduct maintenance. The Maritime Silk Road project provides opportunities. From the Chinese perspective, national security for the vast seaborne trade to and from China and the associated China-owned fleet of merchant ships is essential. Although not promoted as an aim of the Maritime Silk Road, this aspect is often seen as an implied objective. Consequently, China’s port developments and involvement on the MSR routes have been increasingly a focus of attention among foreign observers. A valuable discussion of the actual and potential role of China’s navy is included in an essay in the National Bureau of Asian Research special report entitled Asia’s Energy Security published in November 2017 (essay author: Christopher Len). Since energy security for China is a prominent matter within the B&RI, given the country’s heavy reliance on imported supplies of oil, gas and coal, the integrity of sea trade routes utilised is of utmost significance. This essay says that “from the perspective of energy security, China’s development of access to port facilities for the (Chinese navy) and alternative overland transit pipelines through its littoral neighbours will be the defining features of the Maritime Silk Road”. It is clear that there is a growing role for the PLA Navy within the MSR, and the author suggests that “Beijing has notably begun to emphasize the linkages between the MSR, the need to protect its rights and interests overseas, and the advancement of common security through maritime security cooperation”.20 However, a more differentiated assessment of the envisaged role is outlined in the CSIS study’s review of China’s military presence in the Indian Ocean and security implications. What is the likely effectiveness? This analysis concludes that the security implications of China’s naval push into the Indian Ocean are mixed. In peacetime an expanded Chinese regional influence is likely to result, but amid hostilities China’s enhanced naval presence is 18 Duchatel & Duplaix, Blue China, 14, 19 19 Asia Times (2018), ‘Anti-piracy mission helps China develop its blue-water navy’, Hellenic Shipping News, 9 January 20 Len, Christopher (2017), ‘China’s Maritime Silk Road and energy geopolitics in the Indian Ocean: motivations and implications for the region’, in Herberg, Mikkal E et al, Asia’s energy security and China’s Belt and Road Initiative, (Washington DC: The National Bureau of Asian Research), November, 42, 46
- 7. Issue Twelve July2018 7 seen as creating as many vulnerabilities as opportunities when protecting trade routes, bases and ships.21 A shipowning dimension One activity closely linked to the Maritime Silk Road is not usually discussed as part of the scheme, because it is not promoted as formally related. The China-owned fleet of merchant ships of all types – especially tankers, bulk carriers and container ships – has grown strongly over the past twelve months, following earlier rapid expansion. Many of these ships are employed on MSR trade routes, although not necessarily exclusively (as geographically flexible patterns are a feature of some vessels’ employment), while others are employed on associated routes. container ship Cosco Shipping Taurus, 20,000 teu, built 2018, owners: Cosco Shipping According to data compiled by Clarksons Research, the China-owned merchant ship fleet was comprised of 7,567 ships totalling 159.3 million gross tonnes (a common measure of capacity) at the beginning of June 2018. The total had grown by 13.2m gt or 9 percent since the same point a year earlier.22 An indication of future fleet growth is provided by the volume of ships for which definite orders have been placed at shipbuilding yards. Currently owners based in China have 22.9m gt on order, equivalent to over 14 percent of the existing fleet, a large proportion of which is scheduled for delivery this year or in 2019.23 Other influences in addition to newbuilding deliveries will determine how the future fleet’s capacity evolves. Scrapping (recycling), and purchases or sales on the secondhand market will have an impact which is not easily predictable. But the newbuilding orderbook as recorded currently, and known intentions of Chinese owners, indicate sizeable expansion ahead. An unfolding narrative What are the tangible signs of Maritime Silk Road progress in the past twelve months or so, and what is likely to happen in the period immediately ahead? This aspect is not a specific focus of the two published studies reviewed here, but some developments are noteworthy. From the outset, it has been envisaged that the B&RI could have a favourable impact on China’s economy as it unfolded. Ample scope for this outcome is widely acknowledged, but predicting the pace at which it evolves is more difficult. In the latest half-yearly economic outlook analysis published at the end of May by the OECD organisation, a review of progress in China suggests that the B&RI “will keep infrastructure and exports strong”.24 However, alluding to the uncertain pace of activity, the authors comment that “a faster-than-expected 21 Cooper, Zack, ’Security implications of China’s military presence in the Indian Ocean’, China’s Maritime Silk Road, 27 22 Clarksons Research (2018), Shipping Intelligence Weekly (London: Clarksons), 8 June, 19, and earlier editions 23 Clarksons Research, Shipping Intelligence Weekly, 19 24 OECD (2018), OECD Economic Outlook (Paris: OECD), 30 May, 118
- 8. Issue Twelve July2018 8 roll-out of projects...would boost Chinese exports of goods and services, and hence, growth.”25 Since the MSR, and the Belt & Road Initiative as a whole, is clearly a long-term development project, it is not altogether surprising that progress has been gradual. At several of the ports on the route there have been recent advances in construction work on terminal and berth facilities. Also, on the land side, work on connecting ports with road and rail infrastructure to assist connectivity has gained further momentum. Despite these positive signs, news reports in recent months frequently highlighted problematical features arising in many MSR port projects and other B&RI involvement.26 These problems may prove temporary. Some difficulties look set to cause delays, amid possible renegotiation of contracts, mainly reflecting financing difficulties. Political opposition in several host countries also has become more prominent, in part a response to growing awareness of the extent of indebtedness to Chinese banks and the potential repercussions. The CSIS study, looking at China’s Maritime Silk Road as a whole, suggests that “the overall conclusion is mixed”. The ECFR analysis concludes that “China’s policies on facilitating the growth of its blue economy and its construction of a powerful navy are transforming the global maritime environment...” 27 These observations highlight both the difficulty of evaluating how and at what pace this grand project will proceed, while emphasising the changes taking place which eventually could reshape aspects of the global maritime scene. 25 OECD, OECD Economic Outlook, 119 26 RSIS (2018), ‘Far from plain sailing on the Maritime Silk Road’, Hellenic Shipping News, 29 May; Sunday Times (2018), China delays Hambantota Port deal’s final tranche’, Hellenic Shipping News, 28 May; Bloomberg (2018), ‘China’s $7.5 billion Myanmar port “crazy”, Sui Kyi adviser says’, Hellenic Shipping News, 28 May; Jonathan Hillman (2018), ‘The clouds gathering around China’s Belt and Road’, Nikkei Asian Review, 16 May; Financial Times (2018), Malaysia vote slows Belt and Road plan, 16 May; Bloomberg (2018), ‘China’s $1 billion white elephant’, Hellenic Shipping News, 19 April; ANI (2018), ‘China’s BRI initiative hits roadblock in 7 nations’, Hellenic Shipping News, 17 April 27 Green, Michael J, ‘Foreword’, China’s Maritime Silk Road, 3; Duchatel & Duplaix, Blue China, 39
- 9. Issue Twelve July2018 9 2. Academic Frontier Blockchain-based Bill of Lading: Analysis of the technical and legal aspects of blockchain technology in the Shipping Industry Authored by Roberto Rovayo, LL.M28 29 Introduction The blockchain community considers this technology as a digital panacea that could bring a plethora of applications and envisage the change of the Internet and how people communicate and transfer information. This is because blockchain technology promises a more transparent, reliable and efficient way of organization and communication in which transactions, contracts or any other type of information can be stored in a public database where they can be secured from tampering and deterioration. The purpose of blockchain technology is to ensure integrity on a peer-to-peer system giving a solution to the double-spending problem of electronic tokens. It is extremely difficult to modify, which guarantees the transparency and security of the information. 28 Roberto Rovayo, LL.M. in International Commercial Law, University of Westminster (London), barrister at Ecuador; email: roberto.rovayo@live.com 29 Picture taken from < http://www.blockvalue.com/app/13247.html> Abstract The digitalization of the bill of lading is a pending task for the traders and the shipping industry. Some of the electronic bills of lading that are being used are not enough to migrate to a paperless digital platform. Blockchain technology could be the solution to this problematic. However, legal framework needs to be developed in order to allow its implementation and assure legal certainty. This article would give a brief explanation of blockchain technology and its advantages and analyze the legal framework that has to be adopted in order to legally implement a blockchain-based bill of lading.
- 10. Issue Twelve July2018 10 Those features of blockchain technology have brought attention to entrepreneurs and visionaries to encourage the use of this technology and discover new applications to improve and revolutionize the economy and industries. On November 2017, a container shipping company successfully complete the first pilot test of a blockchain-based bill of lading. 30 The containers were shipped from China to Canada and delivered to the consignees using original electronic records. The test was done with the cooperation of the IT provider using a distributed ledger system that allowed the parties to issue, transfer, endorse and manage electronic transferable records. Also, important shipping companies have shown interest and have encouraged the use of blockchain technology as a substitution for the traditional paper system. Maersk and IBM have collaborated to bring a solution that would benefit the shipping industry using blockchain technology. 31 The implementation of blockchain technology could save the industry an enormous amount of money. Digitalizing the supply chain process would permit a secure and transparent database that shares the information with all the parties involved. Maritime Transport International, also have tested successfully a pilot program using blockchain technology to improve the deployment of their containers and have calculated that blockchain technology could save $300 per container 32 . The need for a paperless-based system for transport documents With the advance of the technology in logistics and faster navigation of vessels, the traditional bill of lading has brought some problems that decrease the dynamic of transactions and increase the costs of the supply chain procedures. It is estimated that traditional paper-based system used for transport documents costs annually around 5 to 10 percent of the value of the traded goods.33 On the other hand, some of the electronic bills of lading that are being used nowadays are not enough to migrate to a paperless digital platform. The actual electronic trading systems that have been approved by the International Group of P&I Clubs (BOLERO, essDOCS, and eTittle) do not have a definitive acceptance by the international merchant’s community. On a survey made by the United Nations Conference on Trade and Development (UNCTAD) it was concluded that “while most respondents believe that infrastructure, market and/or trading partners are not yet ready for the use of e-alternatives, the answers also suggest that the lack of a sufficiently clear and adequate legal framework is perceived as a main obstacle to the substitution of 30 MarEx, ‘ZIM Trial Blockchain Bill of Lading’, (MarEx, 20 November 2017) <https://maritime- executive.com/article/zim-trials-blockchain-bill-of-lading> accessed 19 June 2018 31 IBM, ‘IBM, Maersk and IBM Unveil First Industry-Wide Cross-Border Supply Chain Solution on Blockchain’ (IBM, 5 March 2017) <https://www-03.ibm.com/press/us/en/pressrelease/51712.wss> accessed 20 June 2018 32 Cision PR Newswire, ‘Blockchain System Successfully Deployed to Revolutionise the Logistics Industry’ (Marine Transport International, 30 August 2017) <https://www.prnewswire.com/news-releases/blockchain-system- successfully-deployed-to-revolutionise-the-logistics-industry-642213333.html> accessed 22 June 2018 33 UNECE, ‘The United Nations Electronic Trade Documents (UNeDocs) Project’ (2009) <https://www.unece.org/fileadmin/DAM/trade/workshop/wks_capbld/unedocs_summary.pdf> accessed 22 June 2018
- 11. Issue Twelve July2018 11 transport documents with electronic alternatives.” 34 The 51% of the respondents of the survey considered that the lack of readiness and the 44% of the respondents said that the lack of legal framework were the main obstacles to adopt a digital platform for transport documents such as the bill of lading. We have to consider and is well known that the bill of lading is a very antique document of transport that been used for centuries between merchants to evidence the right of the party to receive the goods at their destination. However, the traditional bill of lading due to his nature is highly susceptible to fraud, loss or damage. 35 The substitution of the bill of lading for a blockchain-based bill of lading would diminish substantially the risks involved with the transfer of this document. Some technological advantages of the blockchain-based bill of lading for the international commerce are the following: Faster communication and instant updates: With a blockchain software the transfer of information could be done in just a matter of minutes instead of mailing the documents with the parties involved in a transaction. The blockchain technology can be programmed to accomplish tasks automatically without human interference. The exchange of information could be made instantly and automatically.36 Publicity and transparency: The blockchain network is a place to store information that can be accessed by any participant who provides the public access key. Transparency is guaranteed to the participants and third parties since they can check previous transactions performed by the participants of the network. Globalization of the market: The blockchain system can be accessed in any part of the world which means that is accessible to everyone. Participants can create a more trusted commercial relationship without the need for a trusted third party. 37 The market will be organized and directed by the traders and others participants of the chain of commerce with the support of free and direct information. 34 UNCTAD, ‘The use of transport documents in International Trade’ (UNCTAD, 26 November 2003) <http://unctad.org/en/Docs/sdtetlb20033_en.pdf> accessed 22 June 2018 35 Glyn Mills Curie & Co v The East & West India Dock Co (1882) 7 App Cas 591 36 Song W., Shi S., Xu V., Gill G., ‘Advantage & Disadvantages of Blockchain Technology’, (Blockchain Technology, 21 November 2016)<https://blockchaintechnologycom.wordpress.com/2016/11/21/advantages- disadvantages/> accessed 23 June 2018 37 ModulTrade, ‘Effect of globalization on international trade’, (Medium, January 2018)<https://medium.com/@ModulTrade/effect-of-globalization-on-international-trade-2bcc873dd121> accessed 23 June 2018
- 12. Issue Twelve July2018 12 Encryption security: The information contained on the public ledger is secured by cryptographic technology. This adds more security and trust to the peer-to-peer system. Also, blockchain technology is append-only distributed ledger which means that the participants can only add information to the blockchain and cannot modify the information that is already stored in the public ledger.38 Fraudulent activities and untrustworthy participants are easy to detect thanks to this feature of blockchain technology. Less human error: Considering that blockchain technology can automate the performance of processes, the risk of human error could be minimized. Lower costs: The blockchain technology allows the disintermediation of trust third parties. This permits to reduce costs of intermediaries for trade finance, that most of the times this brings costs related to documentation, procedural delays, inconsistency and human errors.39 Legal aspects of the use of blockchain technology Since blockchain technology is still a new information technology that is on development and implementation, there are some legal issues that have to be considered by entrepreneurs to provide that the technology complies with regulatory dispositions. Some of the legal challenges that regulators must clarify in order to give blockchain technology a legal infrastructure are the followings: i. Private data: Blockchain technology uses a distributed structure that could record personal data of participants. Therefore, the personal data must be protected by a data protection law. However, a blockchain network can operate between different territories. It is important that regulators indicate which data protection law should be applied in this situation. ii. Smart Contracts: A "smart contract" is a term that is used to describe blockchain-based contract whose performance is executed automatically using codes that are based on an agreement made between the parties if certain conditions are met. Regarding the distributed and decentralized network that operates a blockchain system, the execution of a smart contract is made without 38 Brown L., ‘How blockchain encryption works: It’s all about math’ (TechRepublic, 20 November 2017) <https://www.techrepublic.com/article/how-blockchain-encryption-works-its-all-about-math/> accessed 23 June 2018 39 The Economic Time, ‘Blockchain tech can reduce transactions costs: FICCI-PwC’ (PTI, 20 February 2018) <https://economictimes.indiatimes.com/industry/banking/finance/banking/blockchain-tech-can-reduce- transaction-costs-ficci-pwc/articleshow/63004126.cms> accessed 24 June 2018
- 13. Issue Twelve July2018 13 the need for an intermediary. However, there are some legal questions about the enforceability of a smart contract in relation to applicable legislation. Regulators must recognize a smart contract as a "contract" and how certainty and consideration should be addressed in such electronic contracts. iii. Liability: It is important that regulators define the rules for DAOs (distributed autonomous organizations) which are smart contracts that are programmed with pre-coded rules to do specific tasks using blockchain technology. 40 These digital entities are managed automatically and independently without the need for human intervention. The legal status of this "digital organizations" have to be recognized by the regulators in order to give responsibility to DAOs and/or creators and make them liable in case they commit an illegal conduct. iv. Jurisdiction and dispute resolution: Considering that blockchain technology is a peer-to-peer network it means that the nodes that are connected with the system and with each other, are from different jurisdictions located around the world. This can be a problem in terms of contractual relationships because the legislation can be different between jurisdictions and for that reason, it must be issued a set of rules that indicate what should be the governing law. Functional equivalence on a blockchain-based bill of lading On a blockchain network, there is no need for an intermediary to validate and confirm the transactions. All nodes are connected with each other (this is called a decentralized network). The system is open, users do not need a membership which means that any user can participate in the transfer of an electronic record. Regarding the usage of a blockchain-based bill of lading, some authors support the idea that this kind of digital platform could replicate the functional equivalence of the paper bill of lading. As one of them said: “One conceivable model, for instance, might rely on a technical device that would assure the uniqueness of an electronic record to allow the record itself to be “passed” down a negotiation chain (…) If a token system is used, for example, the holder would typically be the person to whom the token has been “passed” through a regular chain of negotiation.”41 The exclusive control is guaranteed to the holder by the usage of a private cryptographic key, which is able to transfer the record without creating a copy of it during the chain of transactions. 40 BlockchainHub, ‘What is DAO?’ <https://blockchainhub.net/dao-decentralized-autonomous-organization/> accessed 26 June 2018 41 Estrella J., ‘Uniform Law and Functional Equivalence: diverting paths or stops along the same road? Thoughts on a new international regime for transport documents’ (Eleon, 15 March 2011) <https://www.elon.edu/docs/e- web/law/law_review/Issues/Faria_Elon_Law_Review_Vol_II_Issue_One.pdf> accessed 26 June 2018
- 14. Issue Twelve July2018 14 It is possible to implement blockchain technology considering that is capable of circulating not just cryptocurrencies but also non-monetary tokens. The tokens can be “colored” in order to give them any type of representation other than a currency. This method is used to represent and manage real assets (shares, bonds, commodities, etc.) which allows the participants to trade anything they want in a blockchain network. 42 In the case of international trade, a “colored” token can represent a transferable document on a blockchain system. It is essential that the transferable document must be unique (guarantee of uniqueness) in order to the party in possession of the document be entitled to claim the performance of the contract. 43 For the ownership of the goods under a blockchain-based bill of lading, parties must transfer the private key from one holder to another. The “holder” of the private key is the one entitled to claim the ownership of the goods. This could be compared to the possession of the transport document and the act of transfer of the electronic record using an electronic signature could be considered as the endorsement of the transport document. Blockchain technology is capable to guarantee the uniqueness of an electronic record which permits exclusive control giving a functional equivalence of a paper bill of lading. Developing of the legal framework The lack of legal framework for the implementation of blockchain-based electronic transferable records for international trades brings uncertainty and reluctance of its usage. However, there are international model laws that could be used as a guide in order to change the legislation and give legal recognition to the blockchain-based bill of lading. The Rotterdam Rules is the most remarkable legal framework for the implementation of electronic records but it would be irrelevant if State members do not support the ratification of the treaty. The Rotterdam Rules The purpose of the convention is to establish a set of standard rules to modernize the international rules of maritime carriage of goods and to harmonize the international trade law replacing The Hague Rules, The Hague-Visby Rules and the Hamburg Rules44 . The Rules are not yet in force considering that only three out of twenty countries that are needed to make the treaty come into force, have ratified the Rules. 42 Rosenfeld M., ‘Overview of Colored Coins’ (Bitcoil, 4 December 2012) <https://bitcoil.co.il/BitcoinX.pdf> accessed 29 June 2018 43 Takahashi K. ‘Blockchain technology and electronic bills of lading’ (Lawtext Publishing Ltd., 2016) <https://www1.doshisha.ac.jp/~tradelaw/PublishedWorks/BlockchainTechnologyElectronicBL.pdf> accessed 30 June 2018 44 Rotterdam Rules; <http://www.rotterdamrules.com/> accessed 30 June 2018
- 15. Issue Twelve July2018 15 Under the Rotterdam Rules a document of transport is described as a "negotiable electronic transport record". This electronic record has to contain the information generated by electronic communication under a contract of carriage issued by the carrier that "(a) evidences the carrier's or a performing party’s receipt of goods under a contract of carriage; and (b) evidences or contains a contract of carriage.” 45 For a blockchain-based bill of lading to be considered as a “negotiable electronic transport record” it must also support for “an assurance that the record retains its integrity”46 . The blockchain technology can assure this condition because of its tamper-resistant feature. The usage of digital signatures allows authenticating the identity of the transferor. Blockchain technology uses a combination of two cryptographic keys (public and private key) in order to create a digital identity of the user. When a transfer is made, the private key is used to digitally sign a hash of the previous transaction and the public key is used to verify the identity of the transferor. Compared to a paper-based bill of lading, the blockchain-based bill of lading is capable to ensure the immutability of the transactions. In this order, the blockchain technology can assure the authenticity and integrity of a negotiable electronic transport record which can replicate the same functionality of a paper-based bill of lading under the Rotterdam Rules. The Rotterdam Rules, in order to ensure functional equivalence, establish certain conditions that electronic trading systems must comply to replicate the negotiability function of negotiable transport documents. The principle of functional equivalence is provided in Article 9 of the Rotterdam Rules: “Article 9 Procedures for use of negotiable electronic transport records 1. The use of a negotiable electronic transport record shall be subject to procedures that provide for: (a) The method for the issuance and the transfer of that record to an intended holder; (b) An assurance that the negotiable electronic transport record retains its integrity; (c) The manner in which the holder is able to demonstrate that it is the holder; and (d) The manner of providing confirmation that delivery to the holder has been affected, or that, pursuant to articles 10, paragraph 2, or 47, subparagraphs 1 (a) (ii) and (c), the electronic transport record has ceased to have any effect or validity. 2. The procedures in paragraph 1 of this article shall be referred to in the contract particulars and be readily ascertainable.”47 The blockchain-based bill of lading complies with the requirement (b) as we already explained above on how it maintains the integrity of the electronic transport record. Regarding the requirement (a) the concepts of "issuance" and "transfer" are described in Article 1. 45 The Rotterdam Rules, Article 1 (18) 46 Ibidem, Article 9 (b) 47 The Rotterdam Rules, Chapter 3 Electronic Transport Records, Article 9
- 16. Issue Twelve July2018 16 Under the Rotterdam Rules, an electronic record must provide exclusive control to his holder. This is treated as functionally equivalent to the possession of a transport document. “The practical significance of requiring the transfer of actual or constructive possession of tangible goods, or of the physical surrender of a document that represents goods or embodies other rights, is to prevent conflicts between parties claiming entitlement to the same goods or rights." 48 The reason why possession of a transport document is required is that it gives certainty of the chain of transactions as it is impossible for two persons to hold a transport document or possess the goods at the same time. The Rotterdam Rules aims that only one rightful holder can adequately exercise control over the goods or any other document or negotiable instrument that represents them. The blockchain-based bill of lading is subject to the exclusive control of a holder. The exclusive holder is granted by a private key that corresponds to the address where the electronic record is secured. This means that the holder of the private key would be considered to have the possession of the electronic record. The "issuance" and the "transfer" of the negotiable electronic transport record could be achieve using blockchain technology and this would be a procedure that fulfills the requirement for a negotiable electronic transport. In accordance with the requirement (c), blockchain technology gives to users, an address that represents the cryptographic identity of the holder of a token. 49 Since the address is encrypted, the holder remains pseudonymous which makes impossible to obtain the personal identity of the holder. However, the holder can rely on other methods to prove that he or she is the holder50 . As for requirement (d) to confirm that delivery of the goods is made to the holder, the blockchain system can be programmed to transmit the blockchain-based bill of lading to the carrier once the goods are delivered to the holder. One of the most difficult functions of the bill of lading to give equivalence on an electronic trading system is its negotiability function. “It is the negotiability function of the bill of lading that gives rise to most difficulties, mainly because it is impossible to physically “hold,” “endorse,” or “deliver” an electronic record.” 51 Of course, that is not possible considering that an electronic record has no tangible form but as we explained, blockchain technology is capable of replicating these actions by using cryptographic methods which makes able to establish who is the lawful holder of an electronic record. It follows that exclusive control is a guarantee that must be 48 Estrella J., ‘Uniform Law and Functional Equivalence: diverting paths or stops along the same road? Thoughts on a new international regime for transport documents’ (Eleon, 15 March 2011) <https://www.elon.edu/docs/e- web/law/law_review/Issues/Faria_Elon_Law_Review_Vol_II_Issue_One.pdf> accessed 30 June 2018 49 Takahashi K. ‘Blockchain technology and electronic bills of lading’ (Lawtext Publishing Ltd., 2016) <https://www1.doshisha.ac.jp/~tradelaw/PublishedWorks/BlockchainTechnologyElectronicBL.pdf> accessed 30 June 2018 50 Ibidem 51 Estrella J., ‘Uniform Law and Functional Equivalence: diverting paths or stops along the same road? Thoughts on a new international regime for transport documents’ (Eleon, 15 March 2011) <https://www.elon.edu/docs/e- web/law/law_review/Issues/Faria_Elon_Law_Review_Vol_II_Issue_One.pdf> accessed 1 July 2018
- 17. Issue Twelve July2018 17 compiled by an electronic trading system to be recognized under The Rotterdam Rules and blockchain technology, due to its nature of avoiding double-spending of tokens is suitable for those requirements. UNICTRAL Model Law on Electronic Transferable Records The UNCITRAL adopted the Model Law on Electronic Transferable Records (MLETR) at its fiftieth session in Vienna on July 13th , 2017. 52 The model law applies to electronic transferable records and it makes an important improvement for States members to modernize their legislation accordingly with technological developments related to documents of transport in international commerce. The Model Law aims to give certain standard rules and neutral definitions for the use of electronic records used in cross-border transactions of goods. It is not a mandatory legal instrument, it works as a guide for States to incorporate their provisions into national legislation. Like the Rotterdam Rules, the UNCITRAL Model Law on Electronic Transferable Records (MLETR) set some standard rules that apply to electronic transferable record based on the principles of technological neutrality and functional equivalence. Under the approach of the principle of technological neutrality, the UNCITRAL has adopted various technological models. On their Explanatory Notes, they made an explicit reference to blockchain technology when they said that “the principle of technological neutrality entails adopting a system- neutral approach, enabling the use of various models whether based on registry, token, distributed ledger or other technology”. 53 The Model Law encourages to give legal recognition to electronic transferable records. Under Article 7, the Model Law states the general principle of non-discrimination of an electronic transferable record.54 In order to encourage the use of electronic transferable records, The Model Law indicates that it should not be denied the legal effectiveness or validity of an electronic transferable record only because the information is contained in an electronic form. Consent of the parties for the use of electronic transferable records are also considered under the mentioned article. In relation with blockchain technology, it follows that as it is a token-based and distributed ledger-based system, the UNCITRAL has explained that consent may be implicit and inferred depending on specific circumstances, for 52 United Nations Commission on International Trade Law, ‘UNCITRAL Model Law on Electronic Transferable Records’ (UnitedNations, September 2017) <http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2017model.html> accessed 1 July 2018 53 UNCITRAL, ‘Explanatory Note to the UNCITRAL Model Law on Electronic Transferable Records’ (United Nations, September 2017) <http://www.uncitral.org/pdf/english/texts/electcom/MLETR_ebook.pdf l> accessed 1 July 2018 54 United Nations Commission on International Trade Law, ‘UNCITRAL Model Law on Electronic Transferable Records’ (UnitedNations, September 2017) <http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2017model.html> accessed 1 July 2018
- 18. Issue Twelve July2018 18 example, the control of the electronic record or the performance of the obligation contained in the record.55 The UNCITRAL was aware of the secrecy and confidentiality that blockchain technology permits for transactions and identities of the parties involved, as it explains that some systems, “such as those based on distributed ledgers, may identify the signatory by referring to pseudonyms rather than to real names.” 56 However, the UNCITRAL gives a solution for that problem and admits that “identification, and the possibility of linking pseudonym and real name, including based on factual elements to be found outside distributed ledger systems, could satisfy the requirement to identify the signatory.”57 As we can see, The Model Law and The Rotterdam Rules are not obstacles for blockchain technology to be implemented in relation with the requirement of identification of the parties considering that the requirement could be satisfied using other methods like factual elements. Regarding the conditions to provide functional equivalence of a transferable record, the Model Law and the Rotterdam Rules shared practically the exact conditions. Conclusion A blockchain-based bill of lading could sound like something that would be difficult to implement considering that a great percentage of traders are not familiarized with blockchain technology. However, its usage could be encouraged by shipping and logistics companies providing this information service. As we already mentioned, there are some companies that are doing significant improvements to implement blockchain technology, in order to digitalize the supply chain. Some other industries are already taking advantage of this technology, like the banking and finance industry (R3 software firm and its distributed ledger technology, Corda). The advantage of blockchain technology for the international commerce industry would be a more reliable, effective and efficient method to transfer transport documents, such as a bill of lading, etc. And as we have explained above, this can be translated in reducing costs of transportation and risks involved in the transaction. As long as a legal framework is not adopted by most of the States, this technology would not be attractive for traders, considering the lack of legal certainty that exists nowadays around blockchain technology. Is important that regulators analyze and consider the international conventions and model laws that regulate and suggest the rules for electronic transferable documents. A blockchain-based bill of lading is capable of replicating the three basic functions of a traditional bill of lading which means that is functionally equivalent. 55 Ibidem 56 Ibidem 57 Ibidem
- 19. Issue Twelve July2018 19 3. Human Rights Human Rights in Europe: An Insider’s Views Authored by Andrew Drzemczewski58 59 1. INTRODUCTORYREMARKS Ladies & gentlemen, It is somewhat strange to find myself in Hendon, this evening. As some of you are aware, my parents, both Polish, bought a house, here in Hendon, back in 1947, on Audley Road, after demobilization - having spent the War Years in Siberia and then in the Middle East. Most of my childhood years were spent in Hendon, with a stint, as of the age of 10, at a Polish boarding school near Henley-on-Thames… Later on, when studying at the LSE, I often hid myself away - over the Christmas and Easter holidays - at the Hendon municipal library, next to the Town Hall at the Burroughs, a stone-throw away from where we are right now. Today, I am at Middlesex University, in Hendon, within a few minutes walking distance of the primary school. I attended as of the age of 5 and that was over 60 years ago! 58 Andrew Drzemczewski, Visiting Professor, Middlesex University School of Law, London; Formerly Head of the Legal Affairs & Human Rights Department, Parliamentary Assembly of the Council of Europe, Strasbourg This is a slightly revised version of the author ’s Inaugural Professorial Lecture given at the School of Law of Middlesex University in Hendon, London, on 17 January 2017. A shortened version of the lecture was published in the European Human Rights Law Review, 2017, issue 2, at pp. 134 -144. 59 Picture taken from < https://sputniknews.com/europe/201806191065553141-uk-eu-echr-may/> Editor’s Note Human rights are addressed in business context more often, such as cooprate social responsibility, human rights in business and so on. As the formerly Head of the Legal Affairs & Human Rights Department, Parliamentary Assembly of the Council of Europe, Strasbourg, the author provided with an in-house view of a selected number of human rights issues dealt with by the Council of Europe that he was involved in.
- 20. Issue Twelve July2018 20 The title of my talk is “Human Rights in Europe: an insider’s views.” I am to speak to you about specific, selected, human rights issues dealt with by the Council of Europe. When I left the U.K. to start my career as a ‘Eurocrat’ in Strasbourg - over 31 years ago - the world was so different. Those were exciting times. We lived through an optimistic, indeed a ‘euphoric’ decade, subsequent to the rise of the SolidarnoĞþ movement and the fall of the Berlin Wall.60 The situation is very different today: major human rights violations still occur in a number of member states, for example, with respect to the situation in Ukraine and in the North Caucasus. There is a terrorist threat which has led to abusive use - by state authorities - of Article 15 of the European Convention on Human Rights (ECHR); look at what is happening in Turkey right now.61 We are also confronted with renewed challenges: Europe - the cohesion of which was already weakened by the financial crisis and austerity measures - needs to absorb a major inflow of migrants, refugees and asylum-seekers; there is an unhealthy upsurge of populism, intolerance, and Islamophobia; the rule of law has been undermined in countries like Hungary and Poland, and certain parts of Europe are becoming increasingly unstable, reminding us of the 1930s and developments which led to the atrocities of the Second World War. ... And here I am, not to speak about these major challenges confronting us, but rather to provide you with an in-house view of a selected number of issues I have been involved in: I had the privilege of being intricately involved in the drafting of Protocol 11 to the ECHR (which led to the creation of a full-time European Court of Human Rights (Court or ECtHR) in Strasbourg);62 I helped set-up a confidential Committee of Ministers’ (CM) monitoring mechanism, which an informed insider has recently called a ‘failed enterprise’; and, since 2005, until my departure from the organisation last year, I was in charge of the Legal Affairs and Human Rights Department of the Parliamentary Assembly (the Assembly or PACE). It is principally this in-house experience, or at least certain aspects of it, which I will speak to you about this evening. 2. The COUNCIL OF EUROPE, NEW DEMOCRACIES AND THE DRAMATIC RESIGNATION – IN JUNE 1997 – OF THE DEPUTY SECRETARY GENERAL Let us be honest and accept the premise that the Council of Europe is no longer a privileged club of relatively sophisticated and economically – more or less – comfortable states which reflect liberal-democratic (Western) European standards and achievements of the early 1980s, when there were just over 20 member states. After the initial euphoria of the late 1980s and early 1990s we witnessed – on the perimeters of the organisation – the tragedies of Bosnia and Kosovo. And even within the Council of Europe, major human rights violations had occurred in South East Turkey, and several years later in Chechnya, compounded by conflicts principally, but not exclusively, in the countries of the former Soviet Union. 60 See D. Huber A Decade which made History. The Council of Europe 1989-1999 (Council of Europe Publishing, 1999). 61 See, e.g., M. O’Boyle “Emergency Government and Derogation under the ECHR” [2016] 4 E.H.R.L.R. 331 and Parliamentary Assembly (PACE) document AS/Pol (2016)18 rev., Report on fact-finding visit to Ankara (21- 23 November 2016) of the Committee on Political Affairs and Democracy’s ad hoc Sub-Committee on recent developments in Turkey, 15 December 2016 http://website-pace. net/documents/18848/2197130/20161215- Apdoc18.pdf/35656836-5385-4f88-86bd- 17dd5b8b9d8f. 62 See, e.g., “A major overhaul of the European Human Rights Convention control mechanism: Protocol No. 11”, in Collected Courses of the Academy of European Law, Vol. VI, Book 2 (Martinus Nijhoff, 1997), pp. 121- 244. See also Ten Years of the ‘New’ European Court of Human Rights 1998-2008 (European Court of Human Rights, 2008), testimony on pp. 63-64 available at http://www.echr.coe.int/ Documents/10years_NC_1998_2008_ENG. pdf.
- 21. Issue Twelve July2018 21 We have not rid ourselves of barbarities which, back in the 1950s and 1960s, we considered to be confined to the annals of history of our ‘civilised’ European continent. Yet the Council of Europe is the moral guardian of human rights in Europe. We have our cherished Court of Human Rights, the Committee for the Prevention of Torture (CPT), the European Commission against Racism and Intolerance (ECRI), an effective, independent Human Rights Commissioner, the European Social Charter with its collective complaints mechanism, and well over 200 conventions, many of which reinforce and consolidate the three pillars upon which the organisation is based: genuine pluralistic democracy, rule of law and the protection of human rights.63 When countries, principally from Central and Eastern Europe, the so-called ‘new democracies,’ indicated their desire to join the Council of Europe, the decision to include them could not be refused. In this respect, key roles were played not only by the Committee of Ministers, but also the Parliamentary Assembly which, at the time, invented ‘special guest status’ for parliaments of the applicant states, and whose ‘Opinions’ were essential for the Committee of Ministers to take into account before inviting a state to join the organisation. Many of us also remember the ‘safety net’– set-up by the European Community – with its so-called 1993 Copenhagen Criteria,64 resulting in EU enlargement, with ten new member states, as of May 2004. Were these decisions taken too precipitously? I obviously cannot speak for the EU. However, as a staff member of the Council of Europe, working closely with Peter Leuprecht, the then Director of Human Rights and later Deputy Secretary General, we were of the view that the ‘new democracies’ certainly ought to be invited to join the democratic club of ‘Western European states’ possessing a long, and hopefully strongly- anchored rule of law traditions. The door must definitely not be slammed in the face of countries wishing to join a democratic club. But we were also of the view that ratification of the ECHR ought not be taken too hastily.65 Why? Simply because major legislative and administrative changes take time. There is a need to train law enforcement officials and the legal profession. To change a law or two can often be a relatively simple matter, but to ensure that ECHR standards, and the case-law of the Strasbourg Court are actually impregnated into ‘legal thinking’ and daily practice may be another matter. Changes must often be thoroughly thought through, implemented carefully, and take root in the very fabric of society and not be simply cosmetic.66 63 Article 3 of the Council of Europe’s Statute of 1949, ETS Nº. 1. 64 For details see EUR-Lex website: http://eur- lex.europa.eu/summary/glossary/accession_ criteria_copenhague.html. 65 C.f., the delay in which, for example, France, a founding member of the organisation, which ratified the ECHR in 1974 and accepted the right of individual application (which was then optional, addressed to the now defunct European Commission of Human Rights) only in 1981. See “Ensuring compatibility of domestic law with the ECHR prior to ratification: The Hungarian Model’ in Vol. 16 HRLJ (1995), pp. 241-260. 66 When, during the period of ‘enlargement,’ I was asked to express my views on the subject which, if provided, might well have been at variance with decisions taken in the capitals of member states, I refrained from so doing. Instead, when asked about the speed with which important political decisions had been taken, I often cited what Vaclav Havel had said in October 1992 (Le Monde, 29 October 1992, discours à l’Académie des sciences morales & politiques, page 4.). My translation of the French original: “I realized with horror that my impatience with respect to the reestablishment of democracy had something communist in it…. I wanted History to advance in the same manner as a child pulls at the stem of a plant to try and make it grow faster. I believe one has to learn to wait, as one does to create. One has to patiently sow the grains, water the earth diligently – where they have been planted – and give them the time that they need to grow. One cannot fool a plant, no more than one can fool History. But one can continue watering. Patiently, every day. With comprehension, with humility, certainly, but also with love.”
- 22. Issue Twelve July2018 22 We were in the minority. This is now history. Decision-makers in member State capitals thought otherwise, with the result that today the ECHR has been ratified by all 47 member states. That said, permit me to recall that – after having set-up the Committee of Ministers’ confidential monitoring mechanism – Peter Leuprecht, then Deputy Secretary General, resigned from the Council of Europe in June 1997 as Nº. 2 in the organisation, having found as unacceptable the Committee of Ministers’ decision to invite Russia (during the war in Chechnya) and Croatia (with President Tudjman’s refusal to co-operate with the Ex- Yugoslavia Tribunal). His logic: yes, states should be welcome to the Council of Europe, but only if they ‘have clean hands’ and are really willing and able to abide by the principles upon which the organisation is based. Leuprecht thought that these states fell woefully short of the mark as concerns the three Council of Europe basic pillars “…values were being watered down. That’s why I left. I don’t believe you can be a dissident and stay in government.”67 You may or may not agree with Leuprecht’s stand, but his resignation was a dramatic event which had a profound impact in Strasbourg and beyond. It also confirmed, to me, that enlargement to the East – from just over 20 to now 47 states – may have been too precipitate but appeared, at the time, to be politically inevitable. It was recognized by political leaders at the time, in State capitals, that ‘monitoring’ par excellence, by a newly created full-time Human Rights Court in Strasbourg, supplemented by other key (human rights) monitoring mechanisms, would not suffice. Hence the need to ensure serious political monitoring so that basic values and standards of the organisation not be diluted.68 3. THE COMMITTEE OF MINISTERS’ CONFIDENTIAL POLITICAL MONI- TORING As a detailed overview of the organisation’s core monitoring mechanisms, including that of the Parliamentary Assembly, will shortly be published by Oxford University Press in a book entitled The Council of Europe. Its Laws and Policies,69 I will limit my observations to the less known monitoring carried out by the Committee of Ministers, the executive organ of the organisation – in effect, the Foreign Ministers of member states, represented by their ambassadors based in Strasbourg. 67 See “Reflections on a remarkable period of eleven years: 1986 to 1997” in Liber Amicorum Peter Leuprecht (Bruylant, 2012, Texts collected by O. Delas and M. Leuprecht), pp.105-115, at pp. 114-115. 68 Obviously, the Court in itself does not carry out monitoring, but the term is here used generically to encompass functions entrusted to the Committee of Ministers in supervising the Court’s judgments: Article 46 §2 ECHR. ‘[S]erious political monitoring’ also includes monitoring carried out, in particular, by the Parliamentary Assembly, whose work in this respect merits separate and in-depth analysis. See, in this connection, B. Haller “L’Assemblée parlementaire et les conditions d’adhésion au Conseilde l’Europe’” in LawinGreaterEurope. Towards a Common Legal Area. Studies in honourofH.Klebes(Kluwer Law International, 2000, edited by B. Haller, H.-C. Krüger & H. Petzold), at pp. 27-79 and recent texts issued on this subject by the Assembly, Resolution 2149 (2017), of 26 January 2017, based on the annual report of its Monitoring Committee’s activities from September 2015 to December 2016, document 14213, of 6 January 2017 http://assembly.coe.int/nw/xml/XRef/Xref- DocDetailsen.asp?FileID=23246&lang=en All Assembly documents cited in this Opinion can be accessed on http://assembly.coe.int 69 The Council of Europe. Its Laws and Policies, Oxford University Press, 2017, edited by S. Schmahl & M. Breuer. See, in particular, chapter 7 on the Parliamentary Assembly, written by P. Leach, at pp.166-211.
- 23. Issue Twelve July2018 23 States, principally the ‘new democracies’ “willing and able” to abide by Council of Europe standards – to quote from Article 4 of the 1949 Statute – became members of the Organisation on the understanding that they remedy shortcomings in their legal orders as part of the membership package. This would be overseen, in particular, by the Committee of Ministers’ confidential, non-discriminatory, consensus-based monitoring procedure based on its 1994 Declaration on Compliance with Commitments accepted by member states of the Council of Europe.70 Unlike the monitoring work of the Parliamentary Assembly, which is made public, the Committee of Ministers’ procedures – based on the Declaration – was and has remained confidential, and has relied on persuasion, peer pressure and diplomatic negotiation.71 When I moved from the then Directorate of Human Rights and was requisitioned to take charge of the Secretary General’s Monitoring Unit, I was convinced that this confidential monitoring was an artificial mechanism, a mere ‘fig leaf’ created to justify, retroactively, the precipitated decision to invite a number of countries with suspect democratic credentials to join the Council of Europe. But was it a mere ‘fig leaf’? The fact that this confidential procedure was taken seriously by the organisation’s executive, and the fact that it started functioning in very tense and difficult circumstances, back in 1996, might suggest that I was wrong. However, as the 30-year rule of secrecy still applies to documents issued at the time, and with my ‘devoir de reserve’, I cannot – as frustrating as it may be – provide you with a detailed overview of how the system functioned, and in the eyes of some informed observers, has now apparently ground to a halt. I nevertheless wish to make a few comments on this subject. The first relates to the manner in which the ‘secret’ secretariat documents were issued: they initially – before the introduction of thematic monitoring – took the form of ‘factual overviews’ in which ‘areas of concern’ were highlighted in respect of specific countries. In my view – and with all due respect to the incumbent Secretary General and his excellent staff – when one compares those ‘old’ reports with the recent set of annual reports by the Secretary General, the last one issued in May 2016, entitled State of democracy, human rights and the rule of law. A security imperative for Europe,72 the latter is a far cry from what was done back in the late 1990s! In the old monitoring CM documents, ‘areas of concern’ were clearly pinpointed in specific countries, indicating exactly what the problem was in country X or country Y. Hence, to say, as is written in the Secretary General’s report of May of last year, that in nearly 20 countries ‘judicial independence is unsatisfactory due to corruption, political interference and inadequate funding,’ without indicating in which countries this is happening, may leave one somewhat perplexed.73 The contemporary reports of the Secretary General are obviously of a different nature, and do not concern Committee of Ministers’ monitoring. But should the Committee of Ministers not undertake some form of more pro-active ‘state-specific’ political monitoring, 70 Text available at https://rm.coe.int/ CoERMPublicCommonSearchServices/Display DCTMContent?documentId=090000168053 661f. 71 For further discussion on this subject see A. Drzemczewski “Monitoring by the Committee of Ministers of the Council of Europe: a Useful ‘Human Rights’ Mechanism?”, in Vol.2 Baltic Yearbook of International Law (Kluwer Law International, 2002, edited by I. Ziemele), pp. 83-103, and “Le ‘monitoring’ du Comité des Ministres du Conseil de l’Europe: un aperçu de son évolution” in Libertés, Justice, Tolérance Mélanges en hommage au Doyen G. Cohen- Jonathan, vol. I (Bruylant, 2004), pp.707-725. 72 An analysis based on the findings of the Organisation’s monitoring mechanisms and bodies, presented at the 126th Session of the Committee of Ministers, in Sofia, 18 May 2016, accessible at https:// search.coe.int/cm/Pages/result_details. aspx?ObjectID=0900001680646af8, at p.16 73 See also PACE Resolution 2098 (2016) Judicial corruption: urgent need to implement the Assembly’s proposals, of 29 January 2016, § 7, as well as comments by Rapporteur K. Sasi in PACE document 13824, § 23, accessible at http://assembly.coe.int/nw/xml/XRef/Xref- DocDetails-EN.asp?FileID=21798&lang=EN
- 24. Issue Twelve July2018 24 with the help of the Secretary General, or to revert back to the procedure in which ‘areas of concern,’ in specific countries, are actually clearly, unequivocally specified?74 In this respect, it may be worth recalling a rare positive example of solid, effective monitoring on the subject of ‘freedom of expression’, based on work undertaken by two teams of experts in 1997-2000 and 2001-2002. The latter group of seven independent experts, nominated by the then Secretary General, undertook in situ fact-finding monitoring missions on the theme of freedom of expression prior to determining “very serious concern” with respect to the situation in Moldova, Russia, Turkey and Ukraine, as well as “serious concern” with respect to the situation in five ‘new democracies’ (Albania, Azerbaijan, Bosnia- Herzegovina, Georgia and Romania) concerning, at that time, 44 member states of the Council of Europe.75 These ‘confidential’ Committee of Ministers documents have now found their way into the public domain but are still little known to persons outside the organisation, despite the devastatingly negative conclusions reached by the experts, based on conclusions drawn up in a key document issued in 1997 – in which it was specified that: “Where, according to this report, a situation gives rise to very serious concern under Article 10 of the [ECHR], it is difficult to confirm that the freedom of expression of the press really exists in any meaningful sense [and that …] it cannot be said that a democratic system is fully established in these countries.”76 One of the distinguished experts who had taken part in the in situ fact-finding missions, David Anderson, has honoured me with his presence today. The other experts were Denis Barrelet, Jochen Frowein, the late Karol Jakubowicz, Marie McGonagle, Monica Macovei and Andrzej RzepliĔski. Permit me to provide you with another good example of how the Committee of Ministers’ monitoring worked, when the Committee accepted the setting-up of an ad hoc monitoring procedure – with the appointment of three independent experts, Stefan Trechsel, Evert Alkema and Alexander Arabadjev – in respect to a promise made by the Azerbaijani authorities to the Parliamentary Assembly: that, upon joining the organisation, they would release or re-try those prisoners regarded as ‘political prisoners’ by human rights protection organisations.77 This initiative set in motion, in February 2001, an incredibly complex and protracted procedure that consisted in assessing two separate lists of 716 and 212 alleged political prisoners – which took over three years of intensive work to complete. More importantly, it resulted in the release and re-trial of very many persons.78 Those of us with a legal background may find political monitoring – including ‘naming and shaming’, as the Parliamentary Assembly often does – as not the most appropriate bedfellow in an Organisation which credits itself with sophisticated legal mechanisms to prevent or 74 This, in the eyes of certain informed observers, may be a somewhat naïve hope, indeed wishful thinking, given the prevailing situation in Russia, Turkey and Ukraine, and taking into account the difficulties the EU has with ‘Rule of Law monitoring’ in respect of Poland. But the point I am trying to make is this: in many quarters the credibility of the Council of Europe is being put into question which necessitates - now - a more focused form of political monitoring by the Organisation’s executive organ. 75 Documents CM/Monitor (2002)25 and CM/ Monitor(2003)8final2,availableathttps://rm.coe. int/CoERMPublicCommonSearchServices/Disp layDCTMContent?documentId=0900001680 5dfa38 76 Document CM (97) 219, § 92 (cited in Appendix II of document CM/Monitor (2002) 25). 77 Opinion No. 222 (2000), § 14 iv b, of 28 June 2000, available at http://assembly.coe. int/nw/xml/XRef/Xref-XML2HTML-en. asp?fileid=16816&lang=en Azerbaijan acceded to the Council of Europe on 25 January 2001 and ratified the ECHR on 15 April 2002. 78 For more details see Council of Europe documents SG/Inf (2001) 34 & Addenda and SG/Inf (2004) 21 and Addendum, as well as S. Trechsel “The notion of ‘political prisoner’ as defined for the purpose of identifying political prisoners in Armenia and Azerbaijan” in vol. 23 HRLJ (2002), pp.169-176
- 25. Issue Twelve July2018 25 determine human rights violations. Yet, when questioning or criticizing the utility of such political monitoring, one must take into account realpolitik – what can realistically be achieved. Permit me to use the analogy of an elastic band to suggest that political monitoring does have its rightful place in the Council of Europe – be it in the Committee of Ministers or in the Assembly. The opportunity must be seized to ‘stretch’ a member state to the limits of what is possible at a given moment of time, so as to ensure compliance with its human rights commitments, without the elastic band snapping! In other words, if the elastic band snaps, and a state is excluded from the democratic club, the state concerned will no longer have an interest in abiding by the Council’s human rights standards. If you had been one of the persons freed by the Azerbaijani authorities, or a family member of a person released from prison, would you complain? If, for different reasons, Azerbaijan or Russia were suspended from membership of the organisation, would such a step be beneficial or detrimental to the populations of the countries concerned? Food for thought. Just let me add a post scriptum to my comments about Azerbaijan: many of you are aware of the ‘Caviar Diplomacy’ publications of the European Stability Initiative. 79 But not necessarily of the Azerbaijani Foreign Minister’s inaccurate, not to say devious, reply to a question about political prisoners in his country which he made before the Parliamentary Assembly back on 2 October 2014, when he said “When the Parliamentary Assembly of the Council of Europe creates criteria to define political prisoners, I can respond to your question, otherwise it is very hypothetical.” His answer was, of course, completely wrong, as such a definition had already been adopted by the Assembly two years earlier.80 But what makes matters worse, is the position taken by the Committee of Ministers: when the CM was asked to ensure that its, at the time, Azerbaijani chairperson provide a full answer to a written question posed in this connection, the reply of the organisation’s executive organ was that “owing to a lack of consensus” the Assembly would not get a reply to the question posed. In other words: as we have no unanimity – the question will simply remain unanswered!81 Let me summarise what I have said so far. The Council of Europe effectively doubled after the end of the Cold War. There were hesitations as regards some candidates, but in the end the political choice was made to admit all.82 In order to make up for the potential dilution of Council of Europe standards, new forms of monitoring were created. Some of these were quite successful, but one cannot deny that it has been an uphill struggle and the result, in certain cases, is still far from satisfactory. 79 Accessible at http://www.esiweb.org/ (two reports on ‘caviar diplomacy’: http://www. esiweb.org/pdf/esi_document_id_131.pdf, of 24 May 2012, and http://www.esiweb.org/ pdf/ESI%20- %20The%20Swamp%20-%20 Caviar%20Diplomacy%20Part%20two%20- %2017%20December%202016.pdf, of 17 December 2016). See also the Assembly’s Bureau decision to set up an external independent investigation to look into allegations of corruption within the institution, at http:// assembly.coe.int/nw/xml/News/News-View- EN.asp?newsid=6514&lang=2&cat=13, decision taken on 27 January 2017 80 Resolution 1900 (2012): the definition of political prisoner, adopted on 3 October 2012, accessible at http://assembly.coe. int/nw/xml/XRef/Xref-XML2HTML-en. asp?fileid=19150&lang=en 81 See Assembly document 14089 “Unanswered questions by the Committee of Ministers on […] political prisoners in Azerbaijan,” of 18 June 2016, accessible at http://assembly. coe.int/nw/xml/XRef/Xref-XML2HTML-en. asp?fileid=22828&lang=en 82 With the exception of Belarus
- 26. Issue Twelve July2018 26 This is where we stand today. 4. THE PARLIAMENTARY ASSEMBLY The Assembly, composed of national parliamentarians, elects judges to the European Court of Human Rights and the Council’s Commissioner for Human Rights. Apart from these important tasks, as one of the principal organs of the organisation, it is nevertheless often perceived as a deliberative body of little relevance: from time to time, it ‘names and shames’ states which violate human rights; but it lacks the backbone to undertake serious, thorough investigations. This is a simplistic and erroneous perception of the way it functions. Actually, its reports can, and often do have a profound effect on human rights standards in Europe. Suffice to recall its work – over the years– on the implementation of Strasbourg Court judgments (the effectiveness of which Alice Donald and Philip Leach have recently analysed in their excellent book: Parliaments and the European Court of Human Rights83 ). In addition, to illustrate the Assembly’s potential impact, I’d like to provide you with examples of a number of outstanding inquiries led by Dick Marty, the Swiss Senator. Take, for example, the Assembly’s Resolution of January 2011 on inhuman treatment of people and illicit trafficking in human organs in Kosovo,84 which led directly to a four-year in-depth criminal investigation conducted by the EU’s Special Investigative Task Force. The evidence investigated – based on Senator Marty’s report – was of sufficient weight to permit the filing of an indictment, and merited the recent creation of the Kosovo Specialist Chambers and Prosecutor’s Office, whose Seat Agreements, at The Hague, have come into effect as of 1 January 2017.85 Another example is the 2007 report relating to UN and EU Terrorist Blacklists.86 UN Security Council Chapter VII measures, including the use of ‘smart sanctions,’ are obviously effective and important tools in combatting international terrorism. Yes, but what if, by imposing such measures on individuals, ECHR standards are infringed? Is it acceptable for persons to remain on terrorist blacklists for more than 10 years, in a situation in which prosecuting authorities have not found a shred of evidence against them? If indeed this happens, how can one call into question Security Council resolutions that appear to flout basic human rights norms, in the light of Article 103 of the UN Charter which clearly specifies that in the event of a conflict between Charter obligations and other international agreements, the Charter obligations must prevail?.87 This is an issue which has been litigated in a number of fora: suffice for me to cite the Luxembourg Court’s Kadi case of 2008,88 as well as the Strasbourg Court’s judgments in 83 Oxford University Press, 2016 84 Resolution 1782 (2011) Investigation of allegations of inhuman treatment of people and illicit trafficking in human organs in Kosovo, of 25 January 2011, based on document 12462, available at http://assembly. coe.int/nw/xml/XRef/Xref-XML2HTML-en. asp?fileid=17942&lang=en 85 See website https://www.scp-ks.org/en 86 Resolution 1597 (2008) and Recommendation 1824 (2008) United Nations Security Council and European Union Blacklists, adopted on 23 January 2008, based on document 11454, available at http://assembly.coe. int/nw/xml/XRef/Xref-DocDetails-en. asp?FileID=11749&lang=en. 87 The full text reads: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” 88 Kadi and Al Barakaat v Council of the European Union [2008] ECHR I- 6351, of 3 September 2008
- 27. Issue Twelve July2018 27 Nada89 and Al-Dulimi.90 But what you may not be aware of is the Strasbourg Court’s President’s refusal, back in 2010, to permit the Assembly’s Committee on Legal Affairs and Human Rights to make a Third Party Intervention in the Nada case. We were rather puzzled by this refusal, but this did not prevent us from putting into the public domain a letter, addressed by the Swiss authorities to the Chairperson of the Security Council’s Al- Qaida’s Sanctions Committee, announcing the Swiss Parliament’s decision not to apply the relevant Security Council sanctions if, after a three-year period, an individual concerned has not been brought before a judicial or independent authority.91 Just before coming here to Hendon this evening, I checked the website of the Swiss Parliament to see what follow-up was given to this decision: the decision was to “prorogé d’un an” (defer by a year) the said decision.92 So it appears that the Swiss Parliament, at least, stands firm on its decision not to be bound by Security Council decisions which flout basis human right standards. An astute listener to what I have just said may, understandably, point out that I have completely deviated from presenting an Assembly report to that of discussing legal issues relating to blacklisting, and that this is not a convincing example of an important PACE initiative. After all, what we have here is a failed Third Party Intervention before the Strasbourg Court! Yes, but the point I make here is that PACE members are also national parliamentarians, wearing a ‘double casquette’, as the French say. Hence, this specific initiative can be cited as an example of a principled position taken by the Swiss Parliament, to give notice to the UN Security Council that the country will not tolerate UN measures that are not human rights compliant, which was initiated, within Parliament, by Swiss parliamentarians from the Assembly’s delegation. One more example of a Marty report. Some of you may remember “the global ‘spider’s web’ of secret detentions and unlawful inter-state transfers” – a compelling graphic representation of CIA rendition flights that were prominently displayed in Le Monde, The Financial Times, BBC News Online and several other major media outlets around the world. This graphic was taken from the first of two reports Dick Marty presented to the Assembly back in 2006 and 2007, addressing secret detentions of terrorist suspects in Council of Europe member states. Dick Marty revealed that in at least two cases, Poland and Romania, states had hosted ‘secret prisons’ on their soil, and that the governments of these states, acting through their intelligence services, had been complicit in and aware of such illegal practices.93 Marty’s investigative reports on this matter were ground-breaking, headline-making publications that have stood the test of time. They were based on an approach that Dick 89 Nada v Switzerland, Grand Chamber judgment of 12 September 2012. All judgments of the European Court of Human Rights can be consulted in HUDOC – http://echr.coe.int. 90 Al-Dulimi & Montana Management v Switzerland, Grand Chamber judgment of 21 June 2016 91 Assembly document AS/Jur/Inf (2010)05, of 7 December 2010, available at http://www. assembly.coe .int/ Committee Docs/ 2010 / 07122010_blacklists.pdf. 92 See the Swiss Parliament’s website https:// www.parlament.ch/en/ratsbetrieb/suche-curia- vista/geschaeft?AffairId=20093719 on which the text of the latest decision on this subject, dated 29 September 2016, can be found. 93 Resolution 1507 and Recommendation 1754 (2006), Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states, adopted on 27 June 2006, based on document 10957, and Resolution 1562 (2007) and Recommendation 1801 (2007), Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report, adopted on 27 June 2007, based on document 11302 rev. See also Resolution 1838 (2011) and Recommendation 1983(2011), Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations, adopted on 6 October 2011, based on document 12714. All these texts are available on the Assembly’s website http:// assembly.coe.int
- 28. Issue Twelve July2018 28 Marty himself described as being akin to intelligence- gathering – essentially taking on the CIA at their own game! Information was obtained from Eurocontrol, the EU’s Satellite Agency, lawyers representing many of the persons detained, thousands of flight records from different national and international sources, in situ investigations and interviews with scores of sources – many of them confidential – in countries including Belgium, Germany, Italy, Macedonia, Poland, Romania, Sweden, the UK and of course the US. These revelations were also followed-up by an ECHR Article 52 inquiry by the Secretary General and a report on the legal implications from the Venice Commission. The European Parliament considered itself duty-bound, as did several national parliaments, to set-up special committees to look into this matter. Senator Marty also submitted an unsuccessful Amicus Brief before the US Supreme Court in September 2007.94 More importantly, perhaps, was the admission, by President Bush, on 6 September 2006, that there had indeed existed such a network of secret prisons run by the CIA – an extraordinary admission that vindicated the work of Senator Marty. Indeed, when in December 2014 the US Senate released the Executive Summary undertaken by its Select Committee on Intelligence – the so-called Feinstein Report – it was striking to see just how many of Marty’s findings had been accurate eight years earlier and without access to the six million or so classified documents the Senate Committee relied on. The European Court of Human Rights, in the cases of El-Masri v The former Yugoslav Republic of Macedonia,95 Abu Zubaydah and Al Nashri v Poland,96 Nasr and Ghali v Italy (relating to the abduction of Imam Abu Omar),97 has developed a robust set of judicial findings against the participating European states. In all these cases – in addition to two others still pending before the Strasbourg Court against Lithuania98 and Romania99 – the defendant states had all (initially) denied their involvement in, or knowledge of, the existence of secret detentions and illegal renditions on their territory. What Marty prophetically called “la dynamique de la verité” – the dynamics of truth – has slowly but surely caught up with them. The CIA secret prisons reports have thrown light on a dark chapter in European history and will, so it is hoped, ensure that European governments are never again complicit in torture. Contrary to widely-held suppositions, this work was not undertaken by a team comprising of 20 or more full-time lawyers and investigators. Actually, only three Secretariat staff members worked closely with Dick Marty on these reports, while simultaneously juggling all their other professional duties within the Assembly’s Department on Legal Affairs and Human Rights. The going was tough; we had to learn how to deal with current and former secret service officials and intelligence agencies; we had to find ways of guaranteeing confidentiality of sources, and to hold meetings and store highly sensitive information in ‘safe places’ (thankfully, we could rely on Dick Marty’s considerable previous experience as a prosecutor in the context of the Italian mafia mani pulite investigations). We endured many sleepless nights, and regularly had cause to look over our shoulders, anxious that we might have come to know just a little too much… Indeed, I was especially relieved that this dossier had reached closure… after having picked-up a colleague from the airport, on his return from a fact-finding trip to Romania, to find that his flat had been broken into and 94 For a comprehensive overview, with hyperlinks to documents and most initiatives enumerated in this Opinion piece, see Timeline: The Council of Europe’s investigation into CIA secret prisons in Europe, of 24 July 2016, accessible at http:// assembly.coe.int/nw/xml/News/News-View-en. asp?newsid=5722&lang=2 (this timeline is regularly updated). 95 Grand Chamber judgment of 13 December 2012. 96 Judgments of 24 July 2014. 97 Judgment of 23 February 2016. 98 Abu Zubaydah v Lithuania (Nº. 46454/11). 99 Al Nashiri v Romania, (Nº. 33234/12).
- 29. Issue Twelve July2018 29 that “visitors” had been busy installing or removing some sort of device in a cavity in the wall when they had been disturbed by a noisy neighbor. … ‘Ceci n’était pas un cambriolage normale’ was the comment of the somewhat baffled policeman who came to look into this rather unusual ‘burglary’ … a mysterious occurrence we may possibly be able to shed more light on once all the litigation on the subject has come to a close before the Strasbourg Court. 5. ANIN-HOUSESUCCESSSTORY The in-house ‘success story’ is a rare example of how two eminent human rights experts, Antonio Cançado Trindade, former President of the Inter-American Court of Human Rights, and now a judge on the International Court of Justice at The Hague, and Jochen Frowein, at the time Director of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, and previously First Vice-President of the European Commission of Human Rights, were able to nip-in-the-bud, as it were, the newly created Commonwealth of Independent States (CIS) Convention on Human Rights, adopted in Minsk on 26 May 1995 and in force since 11 August 1998. This Minsk Human Rights Convention was perceived as a surreptitious attempt to undermine the effectiveness of the European Convention on Human Rights. Why? Because, if principally Russian-speaking individuals were to bring their applications before the Minsk CIS Human Rights Commission, their (subsequent) applications before the Strasbourg Court could simply be time-barred. In the summer of 1995, in less than six months after the adoption of the CIS Human Rights Convention, the then Secretary General of the Council of Europe, Daniel Tarschys, was able to obtain, from the experts, two separate highly critical analyses of the CIS Convention’s control mechanism, indicating the total lack of independence of the CIS Human Rights Commission, the body designated to monitor States Parties’ human rights obligations under the Convention. As Judge Cançado Trindade wrote: “The fact that the CIS Human Rights Commission… is composed of ‘representatives of the Parties’, who are appointed (not even elected) … is [to me] a cause of great concern”.100 The experts’ reports had a significant political impact: the Parliamentary Assembly was alerted in time, permitting it to add appropriate ‘provisos’ into texts relating to membership applications of countries from the ex-Soviet Union, who were also members of the CIS.101 As to whether the experts’ views had an influence on the Strasbourg Court’s decision to refuse, nine years later, in June 2004, the Committee of Ministers’ request for an Advisory Opinion to determine whether the CIS Human Rights Commission can be regarded as “another procedure of international investigation or settlement” within the meaning of Article 35 § 2 (b) of the Convention, I simply do not know.102 100 Analyses of the Legal Implications for States that Intend to Ratify both the European ConventiononHumanRights anditsProtocols and the Convention on Human Rights of the Commonwealth of Independent States (CIS), by A.A. Cançado Trindade and J.A. Frowein, Council of Europe document SG/INF (95) 17, of 20 December 1995, § 98 of analysis of Cançado Trindade, also published in Vol. 17 HRLJ (1996), pp. 157- 184, at p.179 101 See, in particular, § 11 (e) of Opinion 188 (1995) with respect to Moldova, of 27 June 1995; § 12 (iii) of Opinion 190 (1995) with respect to Ukraine, of 26 September 1995, and § 10 (xv) of Opinion 193 (1996) with respect to Russia, of 25 January 1996 (available on the Assembly’s website and in Vol. 17 HRLJ (1996), at pp. 157-159). 102 The Court considered that it had to leave this matter open, as the adoption of an advisory opinion might prejudice, at a future date, an examination of an individual or inter-state application which could entail an analysis of, inter alia, the independence and impartiality of the CIS Commission, the nature of this
- 30. Issue Twelve July2018 30 Nowhere, as yet, have I seen comments indicating the key role these two experts played in safeguarding the organisation’s acquis.103 But one thing is certain: since the issue of their reports back in 1995, over 20 years ago, the CIS Human Rights Commission does not function. Mention of it has even disappeared from the CIS’s official website … and the Minsk Convention now appears to be a dead letter.104 6. CHALLENGES FOR THE FUTURE I wish to complete my presentation by highlighting – from the perspective of an outgoing “insider” – certain challenges which face the Council of Europe and its member states. The need to ensure the election, by the Assembly, of judges of the highest calibre onto the Court in Strasbourg is of the utmost importance. Hence the need to ensure an appropriate procedure leading up to their election.105 A drafting group of experts106 within the Council of Europe is presently looking into this subject, and I understand that they are likely to focus their work on states’ national selection procedures.107 As concerns the Parliamentary Assembly, its procedures have been tightened- up in recent years. Here, credit must be given to its special committee on the election of judges. Look at, for instance, what happened during the Assembly’s session in October 2016: the judge in respect of Azerbaijan was elected, but only after two previous lists of inappropriate candidates had been rejected by the Assembly. At the same sitting, in October, the Assembly – again upon the recommendation of its special committee – rejected lists submitted to it by the governments of Albania and Hungary since national selection procedures, in both countries, had not been fair and transparent.108 As you can see, the Assembly is taking its work very seriously. Also, as the rules governing its procedure for the election of judges are scattered over a number of Assembly resolutions and recommendations, these texts are now to be consolidated into one single resolution.109 We know that negotiations with respect to EU accession to the ECHR will need to be reopened after the Luxembourg Court’s negative Opinion.110 But if the EU and its member states–who have other matters on their mind right now - come up with a pre-cooked made- to-measure package to ‘appease’ the Luxembourg Court’s objections – do not be surprised if, Commission’s proceedings and the effect of its decisions. It therefore decided, on 2 June 2004, that it had no competence to give an opinion on the matter referred to it 103 The Minsk Convention had been ratified by four Member States of the CIS: Russia, Belarus, the Kyrgyz Republic and Tajikistan (Russia being the only state – as a member state of the Council of Europe - to have ratified the ECHR). Georgia withdrew from CIS in 2008; Ukraine is an Associate Member 104 See Article 33 of the CIS Statute of 1993, and Article 34 of the Minsk Convention and the Commission’s regulations attached thereto (English translation of the latter in Vol.17 HRLJ (1996), at pp.162-164). See also Assembly Resolution 1249 (2001) and Recommendation 1519 (2001), Coexistence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights, of 23 May 2001, based on document 9075, available on the Assembly’s website http://assembly.coe.int. 105 See Assembly website: http://website-pace. net/en_GB/web/as-cdh/main. See also, A. Drzemczewski “The Parliamentary Assembly’s Committee on the Election of Judges to the European Court of Human Rights, Council of Europe” in Vol. 35 HRLJ (2015), pp.269-274. 106 Full title: Drafting Group I on the Follow-up to the CDDH Report on the Longer-Term Future of the Convention (DH –SYSC-I). 107 And perhaps also on the appropriateness of updating the Committee of Ministers’ Guidelines on the selection of candidates for the post of judge at the European Court of Human Rights, of 29 March 2012: document CM (2012)40 addendum final 108 Non-compliance with ‘standards required by the Assembly and the Committee of Ministers’: see PACE document 14150 Addendum II of 5 October 2016. For more details, see the Assembly’s website: http://website-pace.net/ en_GB/web/as-cdh/main. 109 See, in this connection, motion for a resolution, Election of Judges to the European Court of Human Rights, Assembly document 14250, of 25 January 2017, available at http://assembly. coe.int/nw/xml/XRef/Xref- XML2HTML-en. asp?fileid=23401&lang=en 110 CJEU Opinion 2/13 of 18 December 2014
- 31. Issue Twelve July2018 31 in the new set of negotiations, the Council of Europe’s non EU member states, in particular Norway, Russia, Switzerland and Turkey (joined by the UK, perhaps?), may not be as accommodating as they had been until now. 111 Of interest also is an Assembly report which referred to the issue of states using international organisations as a tool to escape accountability – which they actually have succeeded in doing in a number of instances before the Court in Strasbourg by not being held accountable for (alleged) human rights violations perpetrated while undertaking, for example, peacekeeping and military interventions; this is also tied to complex immunity issues.112 Of interest to note, in this connection, is the Dutch Supreme Court’s judgment of 2013, in the Stichting Mothers of Srebrenica case, in which the Supreme Court retained the notion of ‘dual attribution’, permitting the relatives of those killed in Srebrenica to pursue their claims against both the UN and the Dutch authorities.113 Another subject worthy of special attention is the European Commission’s use of its ‘Rule of Law Framework’ with respect to the crisis of ‘constitutional democracy’ in Poland, and the role played, in this connection, by the Council of Europe’s Venice Commission.114 In this presentation I have not ventured into territory of my prédilection: the domestic status of the ECHR, the supervision of the Strasbourg Court’s judgments by the Committee of Ministers,115 and the ever-increasing role that the Parliamentary Assembly plays in this respect. There already exists a substantial literature on these subjects.116 But I do feel obliged to mention, in this connection, that repeal of the Human Rights Act, in this country, must be resisted; all is not yet lost.117 What must, above all, be vigorously countered is gratuitous ‘Strasbourg Court- bashing’ as well as destructive legislative initiatives, such as those taken in Russia, which have empowered the Russian Constitutional Court to determine, inter alia, whether the findings of the Strasbourg Court are compatible with the Russian constitution norms.118 111 See J. Polakiewicz “Accession to the European Convention on Human Rights – an insider ’s view addressing one by one the CJEU’s objections in Opinion 2/13” in Vol.36 HRLJ (2016), pp. 10-22. For background information consult, in particular, “EU accession to the ECHR: the negotiation process” and “Election of EU judge onto the Strasbourg Court” in The EU Accession to the ECHR (Hart Publishing, 2014, edited by V. Kosta, N. Skoutaris andV. Tzevelekos), at pp. 17-28 and pp. 65-72 112 As concerns the Strasbourg Court’s case law: see, e.g., Behrami and Behrami v France & Saramati v France, Germany and Norway, Grand Chamber decision on admissibility of 31 May 2007, and Mothers of Srebrenica v the Netherlands, judgment of 11 June 2013 113 See Assembly Resolution 1979 (2014) and Recommendation 2037 (2014), Accountability of international organisations for human rights violations, of 31 January2014, based on document 13370 – see, in particular, footnote 25 in the latter document which specifically refers to the Dutch Supreme Court’s judgment of 6 September 2013 114 See the European Commission’s website http:// ec.europa.eu/justice/effective-justice/rule-of- law/index_en.htm and that of the Council of Europe’s Venice Commission http://www. venice.coe.int/webforms/events/. See also, e.g., comments regularly made by specialists on this subject on the Verfassungsblog as well as How to Resolve the Crisis of Constitutional Democracy in Central Europe? (forthcoming) http://www.evro-pf.si/media/website/2016/11/ Ljubljana-conference9-10Dec2016-jlc-1.pdf. 115 Article 46, § 2, ECHR: see website http://www. coe.int/en/web/execution 116 See A. Drzemczewski and J. Lowis “The role of Parliaments in relation to human rights: the work of the Parliamentary Assembly of the Council of Europe” in Parliaments and Human Rights. Redressing the Democratic Deficit (Oxford University Press, 2015, edited by M. Hunt, H. Hooper and P.Yowell,), pp. 309-327, and the select bibliography in Impact of the European Convention on Human Rights in States Parties: Selected Examples (Council of Europe publications, 2016), also accessible, as PACE document AS/Jur/Inf (2016) 04, at http:// website- pace.net/documents/19838/2008330/ AS-JUR-INF-2016-04-EN.pdf/12d802b0-5f09- 463f-8145-b084a095e895 117 See, e.g., D.Grieve ‘Can a Bill of Rights do better than the Human Rights Act?’ (2016) Public Law pp. 223- 235 118 See Venice Commission Opinion No. 832/2015, document CDL-AD (2016) 016, available at http://www.venice.coe.int/webforms/ documents/default.aspx?pdffile=CDL - AD(2016)016-e and
- 32. Issue Twelve July2018 32 My last comment is no longer that of an ‘insider,’ but rather one of an ‘outsider.’ It concerns the report on the human rights situation in the North Caucasus adopted by the Parliamentary Assembly’s Committee on Legal Affairs and Human Rights on 18 April 2016. Yes, back in April 2016, nine months ago.119 Why was this report not placed on the Assembly’s plenary agenda in June or October 2016? Or in January 2017? Why has it only recently been put on the Assembly’s draft agenda for April 2017, a year after its adoption? I am puzzled and somewhat worried by this development. 7. CONCLUDING REMARKS I wish to thank, in particular, Joshua Castellino and Philip Leach, for the honour bestowed upon me by my appointment as a Visiting Professor, and to stand before you this evening and make, what has been my very first public lecture in front of human rights personalities of the caliber of David Anderson, Nicolas Bratza, Bill Bowring, Philip Leach, Bill Schabas and many others. I also wish to express my admiration to those of you in the audience, who work hard – behind the scenes - for the European Human Rights Advocacy Centre. The case-work and litigation which you undertake, in particular with respect to Russia, Georgia, Azerbaijan, Armenia and Ukraine, are having a profound impact – believe me! It reminds me of the pioneering work undertaken by the late Kevin Boyle and Françoise Hampson, in Essex, without whom very, very many victims of human rights violations in South East Turkey would not have won their cases in Strasbourg. Middlesex University is playing a key, active role in the protection of Human Rights in Europe, and I am truly deeply touched to be associated with an institution that has become an outstanding center of excellence in the human rights field. I have not spoken about many, many important human rights issues this evening, on the understanding that I will commence my ‘real’ return to academia as of tomorrow, at a roundtable with staff and students – to discuss other challenges which face the Council of Europe. As indicated at the beginning of my presentation, there are major human rights issues facing us today: one cannot but look with concern, at the situation here, in the UK, a mature democracy, with Brexit and the possible repeal of the Human Rights Act, including the dangers that a withdrawal from the ECHR system may entail … which would put into jeopardy the existence of the ECHR. I cannot but reiterate the fact that the challenges before us are enormous, be it here in the UK or in other parts of Europe. The Council of Europe is not a perfect organisation. It does not have economic clout or military power. But it is the moral and legal guardian of human rights standards in Europe. Those of us who have had the privilege of working for the organisation – be it in its statutory bodies, in its core human rights monitoring mechanisms, as outside experts, or staff members – must, in my humble opinion, defend its work vigorously, and when so doing reactions, in PACE and elsewhere, to the Russian Constitutional Court’s finding in the Yukos case on 19 January 2017, http://assembly.coe.int/nw/xml/News/ News-View-en.asp?newsid=6484&lang=2 119 Assembly document 14083 Human Rights in the North Caucasus: what follow-up to Resolution 1738 (2010)? - issued by the Assembly on 8 June 2016 http://assembly. coe.int/nw/xml/XRef/Xref-XML2HTML-en. asp?fileid=22771&lang=en
- 33. Issue Twelve July2018 33 not forget the words of Pastor Martin Niemöller, a German cleric:120 First they came for the Jews, & I did not speak out – because I was not a Jew. Then they came for the communists, & I did not speak out – because I was not a communist. Then they came for the trade-unionists, & I did not speak out – because I was not a trade-unionist. Then they came for me - & there was no- one left to speak out for me. These phrases encapsulate well, in my view, the essential role of the Council of Europe and for what it stands, as the moral guardian of human rights in Europe. 120 Pastor Martin Niemöller who – and many have forgotten this – initially welcomed Hitler’s accession to power back in 1933; quotation taken from The Human Rights Handbook. A Practical Guide to Monitoring Human Rights, K. English and A. Stapleton (Human Rights Centre, University of Essex, 1995), p.14.
- 34. Issue Twelve July2018 34 4. Law of the Sea Editor’s Comment on Z. Zheng, Legal Effect of the Chinese Traditional Maritime Boundary Line Authored by Haiyang Yu and Dr Lijun Zhao121 The South China Sea has been long disputed and the Arbitration has demonstrated escalation of the disputes. The issue is beyond public international law and law of the sea, because according to UNCTAD statistics, over 70% (by volume) Eurasia trade and carriage of goods go via this route. That explains why the 2015 Arbitration attracted not only the coastal countries but also all trading counties such as the USA, the UK and Japan. The law of maritime delimitation provides rules over disputed marine spaces where claims of neighbouring coastal states overlap, and it makes sure those coastal states enjoy the legitimate uses of maritime spaces efficiently. What makes the law of maritime delimitation fascinating and different when compared with the rest of law of the sea, is that it has developed via international courts and tribunals. According to equitable principles, which became customary law, is at the heart, recent case law has established a new ‘three-stage approach’ or ‘equidistance/relevant circumstances method’ for maritime delimitation (2009 Romania Ukraine single maritime boundary [ICJ]; 2012 Myanmar/Myanmar case [ITLOS]). Relevant circumstances, including both geographical factors and non-geographical factors (such as Historic rights), are taken into account in order to achieve the ‘collective equity’ in maritime delimitation. In 2016, the tribunal of the South China Sea Arbitration ruled against China, saying there was no legal basis for China to claim its historic rights over the South China Sea (hereinafter ‘CSC’) based on so-called ‘nine-dash line’ or the ‘CSC dotted line’. The Chinese government was not surprisingly rejected the ruling as ‘null and void’ as it didn’t show up at the whole hearing procedure at all. As far as the ‘nine-dash line’ is concerned, it was drawn on the map of SCS by the Chinese government to make the claim of delimitation in 1947. However, this map with ‘nine-dash line’ has been challenged for its validity under international law of the sea for years. Since China’s absence at the South China Sea Tribunal, it did not give us the chance to know China’s position and reasons on the map. Dr Zhihua ZHENG, Associate Professor, Director of Joint Institute for Maritime Law and History at East China University of Political Science and Law (ECUPL), discussed the legal effect of this map in his article ‘Legal Effect of the Chinese Traditional Maritime Boundary Line (2013) 4 AJIL 2’. Relevant questioned factors in view of the map by scholars and coastal states, such as ‘the intent of the State reflected by the map, neutrality of the cartographer, technical accuracy, consistency of the cartographic material and recognition and acquiescence by the international community’, were discussed in this paper. To read the full text of this article, have access for free from CECCA’s blog via the link below: https://ceccalondon.wordpress.com/2018/05/30/article-legal-effect-of-the-chinese-traditional- maritime-boundary-line/ (To read more articles published in CECCA’s blog, please click the link below: http://cecca.org.uk/blog) 121 Haiyang Yu LLM(Rotterdam), Deputy Editor-in-Chief, CECCA; Dr Lijun Zhao, co-Dounding Director of CECCA, Lecturer in Law (Assistant Professor Equivalent) at Middlesex University London.
- 35. Issue Twelve July2018 35 5. News in brief 5.1 The State Council of China intends to implement new policy in three main Free Trade Zones (Guangdong, Tianjin and Fujian) to further develop the shipping industry. According to this new policy, the government is building these FTZs into international shipping centres. Specific measurements which will be made include changing the ship registration rules, granting international classification societies access to Chinese market, providing vessels on international voyages with bonded oil, etc. In Xiamen and Guangdong, more efforts will be made to provide a better business environment for maritime services, such as Marine Insurance, Shipping Finance, Arbitration and adjustment of general average, etc. Xiamen will also engage in multimodal transport based on the CHINA RAILWAY express (China-Europe) and exploring China-Europe safe and intelligent trade routes. (Source: Xinhua) 5.2 China established two International Commercial Courts – in Shenzhen and Xi’an- to provide a better business environment for ‘B&R Initiative’ and to establish a diversified dispute resolution mechanism composed of litigation, arbitration and mediation. On 28th June 2018, the first 8 judges were appointed by ZHOU Qiang, President and Chief Justice of the Supreme People's Court, as Justices of the International Commercial Courts. The Supreme People’s Court will also set up an International Commercial Expert Committee, members of which will be international professionals who are good at law, especially international law, investment and trade law, to help mediate and offer advice on how to search and use foreign laws in Chinese courts. This was confirmed recently by Judge ZHANG Yongjian, Chief Justice of Civil Adjudication Tribunal No.4, Supreme People’s Court of P.R. China. The official website of China’s International Commercial Courts is: http://cicc.court.gov.cn/html/1/219/index.html (Source: The Supreme People’s Court of P.R. China) 5.3 The Negative List (2018) to identify sectors and businesses that are off-limits for investment in China, released by the State Council of P.R. China, will come into effect on 30th July 2018. The new Negative List will further reduce restrictions and limitations for overseas investors’ investment in China, including restrictions on investment in the manufacturing industries, i.e. auto industry, shipbuilding industry and aircraft industry, the service industries, i.e. transportation, financial industry, cultural industry, etc., and markets access to the Agriculture and energy industry. The Negative List (2018) is available at http://www.mofcom.gov.cn/article/b/f/201806/20180602760432.shtml (Source: The State Council of P.R. China) 5.4 IMO high-level forum ‘IMO 70: Our Heritage – Better Shipping for a Better Future’ was held on 15th May in London. The forum consisted of a panel discussion, topics discussed included IMO’s future in a changing world, shipping and IMO’s roles in trade development. CECCA’s co-founding directors Dr. Lijun Zhao and Shengnan Jia attended the forum. (Source: CECCA) *Kitack Lim, Secretary General IMO (centre) & Dr. Lijun Zhao, Founding Director CECCA (far right), Lecturer Middlesex University London
- 36. Issue Twelve July2018 36 6. Brief Introduction of Senior Consultant of CECCA Professor Yash Tandon holds of the Claude Ake Chair which is funded by the Swedish government at Uppsala University in 2009. He is a Ugandan researcher, policymaker, political activist and writer, with a remarkable career stretching back to the early 1960’s. Professor Tandon, who Is of Indo-African heritage, began his academic career as a student at London School of Economics, where he eventually completed his Ph.D. in international relations in 1969. He was a lecturer with Makerere University in Kampala from 1964 to 1972, a period that he still remembers as “a very inspiring time, although full of illusions”. With the military coup of Idi Amin in 1972 the situation in Uganda became untenable for anyone, who like Yash Tandon, was known for resisting the new regime. Tandon, like many other Ugandans in the opposition to the Amin regime, took refuge in Tanzania, where he became Professor of political economy at the University of Dares Salaam. When the Uganda National Liberation Front was founded in Tanzania, Yash Tandon was one of the founding members. With the fall of Amin in 1978 he was again able to return to Uganda, where he was a government minister for a short period. In the 1980’s and 90’s Professor Tandon held a number of high positions at universities in Kenya and Uganda. The failure of African integration was the focus of Yash Tandon’s 2009 Claude Ake Memorial Lecture, with the title Europe and the Challenge of African Integration. In the last five years before his retirement he was Executive Director of the South Centre, a leading international policy institute based in Geneva, where he remains a Senior Adviser. In 2017, Professor Yash Tendon has joined CECCA as a Senior Consultant advising international relations, legal and economic matters. The Editorial Team is pleased to take this opportunity to introduce Professor Yash Tendon to all members and friends of CECCA. If you would like to know more about CECCA Consultancy and our Senior Consultants, please see more details from http://cecca.org.uk/consultancy-1 Information and commentaries in CECCA Newsletter do not amount to legal advice to any person on any specific matter. Please contact CECCA in case you would like to reproduce any information or commentaries contained.