Month: March 2022

‘No Longer a Member State of the Organisation’: The Expulsion of Russia from the Council of Europe and Articles 7 and 8 of the Statute

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Council of Europe Committee of Ministers, via Flickr

By Dr. Nikos Vogiatzis, University of Essex

Introduction

Russia is no longer a member state of the Council of Europe. On 16 March, the Committee of Ministers (CM) of the Council of Europe decided, “in the context of the procedure launched under Article 8 of the Statute of the Council of Europe, that the Russian Federation ceases to be a member of the Council of Europe”. The decision was effective immediately. This came just a day after the Parliamentary Assembly of the Council of Europe (PACE) unanimously recommended that ‘the Committee of Ministers should request the Russian Federation to immediately withdraw from the Council of Europe’ and, if Russia does not comply, ‘that the Committee of Ministers determines the immediate possible date from which the Russian Federation would cease to be a member of the Council of Europe’. At the same time, shortly before PACE voted on this matter, the Russian Federation had submitted a formal notification to the Secretary-General indicating that it would withdraw from the Council of Europe under Article 7 of the Statute, and that it would denounce the European Convention on Human Rights. This post will revisit some of the key decisions of the last three weeks, demonstrating how these decisions could shed light on legal ambiguities surrounding withdrawal, suspension and expulsion from the Council of Europe.

Suspension and Expulsion

After its invasion of Ukraine, an obvious and fundamental violation of international law, the Council of Europe has clearly taken a firm stance against Russia. It was understood that, after more than two decades of a turbulent relationship, the war in Ukraine could not warrant anything less than an immediate and clear reaction. Thus, the Secretary-General, the Committee of Ministers, the President of the Venice Commission – among others – have all condemned on multiple occasions and in the strongest terms the invasion. For the first time, Article 8 of the Council of Europe Statute was relied upon on 25 February to suspend Russia’s rights of representation in the Council of Europe. The European Court of Human Rights also granted urgent interim measures, asking Russia to refrain from military attacks against civilians and civilian objects and abstain from blocking and terminating the activities of Novaya Gazeta. On 15 March and 16 March the PACE and CM adopted the aforementioned historic opinion and decision, respectively.

Questions surrounding the withdrawal, suspension and expulsion from the Council of Europe had not been the subject of extensive scholarly analysis, until the insightful study by Dzehtsiarou and Coffey of 2019. The key provisions are indeed Articles 7 and 8 of the Council of Europe’s Statute – but, as Milanovic observed, the wording of these provisions is not ideal. These provisions should be read alongside Article 3 of the Statute, which states the values of the Council of Europe. Thus, the clear political determination of the Council of Europe’s organs to request Russia to withdraw took place in the context of a number of legal ambiguities surrounding the relationship between Articles 8 and 7, in particular. After all, this is the first time that Article 8 is enforced against a member state. In that sense, the expulsion decision against Russia has shed light on the applicable legal framework in a number of ways, as will be shown below.

Key decisions since 24 February

The exposition of key decisions of the CM and PACE is selective and focused on the scope of the post; all decisions or further information is available here:

24 February: The CM decides to hold an extraordinary meeting on 25 February to examine measures to be taken under Article 8.

25 February: The CM decides, under Article 8, to suspend Russia’s rights of representation in the Council of Europe. Resolution CM/Res(2022)1 on 2 March clarifies that the suspension concerns the CM, PACE, the Congress of Local and Regional Authorities and committees set up under Articles 15.a, 16 and 17 of the Statute.

10 March: Russia announces (albeit not formally triggering Article 7) its intention of not participating in the Council of Europe.

10 March: On the same day, the CM decides to consult PACE with a view to deciding further measures against Russia under Article 8. PACE had already decided, on 25 February, to hold an extraordinary meeting on 14 and 15 March to discuss the consequences of the Russian Federation’s aggression against Ukraine.

14 March: PACE begins the extraordinary meeting; the members show clear support for the further use of Article 8. A draft report on the ‘Consequences of the Russian Federation’s aggression against Ukraine’ is circulated among members.

15 March: Shortly before the vote, the Russian Federation submits its letter under Article 7 and also notifies the Secretary-General of its intention to denounce the European Convention on Human Rights (ECHR) under Article 58 ECHR. The President of the Assembly (rightly, as will be shown below) informs the members that the Article 7 letter will in no way impact the discussions and the vote on the further use of Article 8.

15 March: PACE votes unanimously in favour of the CM requesting Russia to withdraw from the Council of Europe ‘immediately’.

15 March: After the vote, the Secretary-General, the Chair of the CM and PACE’s President make a joint statement on the ‘exclusion’ of Russia, indicating that it can no longer be a member of the organisation.

16 March: The CM decides to end Russia’s membership with immediate effect, namely from 16 March 2022.

A two-step process against Russia and the role of the Assembly

The first point to be noted is that, on this occasion, Article 8 was used as a two-step process. The first step was the suspension decision on 25 February. The second step was that of ‘expulsion’. Thus, the further use of Article 8 referred to in the decision of 10 March concerned the second step, which is that of ‘expulsion’. Nevertheless, Article 8 is not ideally worded as it refers to Article 7. This matter is returned to below. The question as to why the Parliamentary Assembly was not consulted more extensively (see below) prior to the suspension decision of 25 February could be answered with reference to Statutory Resolution (51) 30, Admission of new members (annexed to the Statute), which also refers to withdrawal:

The Committee of Ministers, before inviting a State to become a Member or Associate Member of the Council of Europe, in accordance with Articles 4 and 5 of the Statute, or inviting a Member of the Council of Europe to withdraw, in accordance with Article 8, shall first consult the Consultative (Parliamentary) Assembly in accordance with existing practice.

The above provision indicates that the Parliamentary Assembly should be consulted prior to the request to withdraw under Article 8 – but not necessarily in the case of suspension. It was possibly felt that it was of the utmost importance to activate immediately Article 8 and proceed with the suspension decision that it entailed on 25 February. However, the Decision of 25 February was adopted ‘[f]ollowing an exchange of views with the Parliamentary Assembly in the Joint Committee’, so clearly the Parliamentary Assembly was involved.

Simultaneously, it is worth noting that Article 8 of the Statute is not the only provision which could have been drafted in a clearer way. Indeed, the above provision in Statutory Resolution (51) 30 is not ideally worded, too. In particular, it refers to an ‘invitation to withdraw’, while Article 8 indicates that this is not an invitation but rather a request.

Russia’s expulsion and the full separation of Articles 7 and 8

When the Assembly prepared and circulated the draft report on the further use of Article 8, it was not known, it appears, that Russia would submit the Article 7 letter shortly afterwards. When that was announced, the Parliamentary Assembly rightly continued with the consideration of the use of Article 8 despite the activation of Article 7. As von Gall argued, even if Article 7 would be triggered by Russia, the organs of the Council of Europe would still need to proceed with the request to leave under Article 8. As she explained, ambiguities surrounding membership of the Council of Europe should not be used to undermine the mandate of the organization. Nothing in the text of the Statute appears to suggest that such a move is not legally permissible.

It is now known that Article 7 was triggered by Russia on 15 March. The above sequence of decisions indicates that the Council of Europe organs were determined to force Russia to withdraw – in effect, to expel it from the organization. The Article 7 letter was an attempt by Russia to avoid that. It is important to recall that, under the text of Article 7, the withdrawal takes effect at the end of the financial year. Simultaneously, one of the amendments that were adopted in the report of the Assembly concerned precisely the addition of the word ‘immediately’ – which brings to the fore the question of the timing of withdrawal and the possibility of immediate expulsion (which, as we know now, is exactly what has happened). Leaving aside the timing of withdrawal, and contrary to Article 8, Article 7 provides for a ‘voluntary withdrawal’ (p. 65) – which clearly is not the case here as we are before the most serious violation of Article 3 of the Statute.

As the draft, and then the adopted Opinion, confirm, the Assembly was of the view that no discretion should be left to the Committee, and it thought so even before the submission of the Article 7 letter. This is legally significant because Article 8 provides that if the state does not comply, the Committee ‘may decide’ that the state is not a member after a specific date. Of course, the Opinion of the Assembly is not binding as the Committee makes the decision – but, as already noted, it proved very influential.

In this context, the activation of Article 7 by the Russian Federation on 15 March (and the withdrawal at the end of the financial year that it implied) inevitably brought to the fore the interplay between Articles 8 and 7 of the Statute. Article 8 provides that the Committee of Ministers can request a state ‘to withdraw under Article 7’. Simultaneously, it has already been mentioned that Article 7 provides for a voluntary withdrawal and also that the use of Article 8 is autonomous from Article 7: a state cannot use Article 7 at will to evade the consequences of the use of Article 8 by the Council of Europe.

The decision to expel immediately was made by the Committee, taking into account the Opinion of the Assembly. After this sequence of decisions, Article 8 could have been interpreted by the CM in at least two ways. First, as implying a connection with Article 7 in the following way: that the request to withdraw if the state complies would take place under the terms of Article 7, namely by the end of the financial year. Differently put, that an ‘expulsion’ on a specific date (including with immediate effect) could only take place once it was established that the member state in question is unwilling to cooperate. This situation could be viewed as a de facto expulsion, even if legally Russia would remain a member state until the end of the financial year. By analogy, the example that Klein provides (p. 66) of the Greek military junta would be of relevance (Greece, having declared its withdrawal under Article 7, was de facto suspended from December 1969 until the end of the next financial year).

Second, Article 8 could be (and indeed was) interpreted as enshrining a right to terminate the state’s membership immediately, regardless of whether or not the state cooperates. This position strengthens the connection between Articles 3 and 8, thereby providing for the possibility of immediate expulsion regardless of the willingness of the state. As Dzehtsiarou observed, ‘Russia was suspended as a result of aggression and gross violations of the values and principles of the organisation’ and therefore ‘the termination of membership should be imminent’.

These considerations were certainly taken into account in the Opinion of the Assembly. Arguably, the Committee went even further than the Opinion by ceasing Russia’s membership with immediate effect (ie without a ‘request’). Thus, Article 8 was fully dissociated from Article 7 and provided for the immediate expulsion from the organization. In doing so, the Council of Europe organs and the CM in particular emphasised that (i) this was clearly not a voluntary withdrawal but an expulsion (ii) the terms and timeframe of expulsion would be determined by the Council of Europe and not Russia.

The clear separation of Article 8 from Article 7 could also have implications for the difficult question of whether Russia is bound by the ECHR for the next six months (see Article 58 ECHR). Plausible arguments have been provided in both directions, and clearly this matter will be the subject of much discussion. Until a decision is made, one would be inclined to think that precisely because Article 8 was interpreted and applied in this way (i.e. immediate expulsion), the starting point would be that the ECHR ceased to apply on 16 March as well.

Conclusion

Russia’s exit from the Council of Europe (and from the European Convention on Human Rights, on which more generally see here and here) was an inevitable and necessary decision which has of course consequences, especially because, as the Council of Europe leaders acknowledged, it deprives the Russian people of access to the European Court of Human Rights (for a broader discussion see the aforementioned article, p. 467 et seq). But ultimately, in every step of this process, and in light of the seriousness of the violations of Article 3, it was the Council of Europe suspending, requesting to leave, and eventually expelling Russia. In this context, the full separation of Articles 7 and 8 is legally and politically significant.

The author would like to thank (with the usual disclaimer) Kanstantsin Dzehtsiarou and Kushtrim Istrefi for very helpful comments on earlier versions.

This article was first published on 17 March 2022 on the ECHR Blog and is reproduced on the ELR Blog with permission and thanks. The original piece can be accessed here.

Libel Trial against Investigative Journalist Concludes Before the High Court: A Landmark Test of the Public Interest Defence

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Carole Cadwalladr speaks at TED2019: Bigger Than Us (April 15 – 19, 2019, Vancouver, BC, Canada) Photo: Marla Aufmuth via Flickr

By Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 14 January 2022, a high-profile libel trial began before Mrs Justice Steyn at the Royal Courts of Justice in London. The British businessman Arron Banks sued investigative journalist Carole Cadwalladr for libel. Mr. Banks is an outspoken backer of Brexit. Ms Cadwalladr is an award-winning journalist who writes for the Guardian and Observer in the United Kingdom. She is particularly known for her work in uncovering the Cambridge Analytica scandal.

The case arose out of remarks in a Ted Technology Conference titled ‘Facebook’s role in Brexit – and the threat to democracy’ given by Ms Cadwalladr in April 2019, and a related Tweet. In the course of the Ted talk, which centred on the UK’s 2016 vote to leave the European Union, she said: “And I am not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian Government”.

Arron Banks has always strongly denied any illegal Russian links, but he has admitted meeting Russian embassy officials on a number of occasions. Although his Leave.EU campaign was fined GBP 70,000 over multiple breaches of electoral law, the National Crime Agency’s investigation found no evidence of criminal activity.

Proceedings were issued on 12 July 2019. In a preliminary ruling on the meaning of Ms Cadwalladr’s words, Mr. Justice Saini held on 12 December 2019 that an average ordinary listener would have understood her words to mean: “On more than one occasion Mr. Banks told untruths about a secret relationship he had with the Russian Government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding.”

Mr. Banks maintained in his legal claim that the threshold of ‘serious harm’ under section 1 of the Defamation Act 2013 had been met in terms of damage to his reputation. Ms. Cadwalladr stated that this was not the meaning she had intended and that she had always taken care to say there was no evidence to suggest Banks had accepted any money. She originally pleaded the defence of ‘Truth’ under section 2 of the 2013 Act but, after Mr. Justice Saini handed out his ruling on the meaning her statement bore, Ms. Cadwalladr withdrew this defence in November 2020. She is now relying on the defence of ‘Publication on a matter of public interest’ under section 4 of the Act.

The defence under section 4 reflects principles established by previous case- law. It consists of two elements: Section 4(1)(a) requires that the words complained of were (or formed part of) a statement on a matter of public interest, and if the publication in question passes this test, then it also needs to meet the requirement of section 4(1)(b), which contains objective and subjective components.

The subjective component is that the defendant must believe the publication was in the public interest and the objective component is the question of whether it was reasonable for the defendant to hold that belief. Section 4(2) of the 2013 Act requires in particular that, in determining these matters, the court ‘must have regard to all the circumstances of the case’.

Thus, the central issue at this trial is likely to be whether it was reasonable for Ms. Cadwalladr to believe that the publication of her statements was in the public interest. The court will also look at the content and subject of the allegations, and the way the journalist acted in researching and reporting them. If Ms. Cadwalladr loses, she faces legal costs of up to GBP 1 million on top of damages.

In a piece published by Open Democracy, Ms. Cadwalladr stated: “Right now, we can’t police the money spent in our elections: this is a massive problem for our democracy. Facebook is unregulated and our electoral laws are still hopelessly unenforceable. There was (and still is) a huge public interest in journalists raising these issues – both as a warning for us here in Britain, and for countries everywhere”.

An interesting aspect of this case is that Arron Banks sued neither the Guardian Media Group which published Ms. Cadwalladr’s reporting for years nor TED which hosted her talk (or other large media outlets which made similar allegations). Instead, he chose to sue Cadwalladr personally. Press freedom groups have called for the case to be thrown out and described it as bearing many of the elements of a so-called SLAPP lawsuit – Strategic Litigation Against Public Participation. A key characteristic of such types of actions is the disparity of power between the claimant and the defendant.

The case has renewed calls for the UK Government to ensure that SLAPPs are not used to silence legitimate criticism and stifle any public interest reporting. Action to combat the emergence and growth of abusing litigation targeting journalists throughout the EU and ensure convergence in Member States’ approaches to SLAPPs is currently being considered at the EU level.

The Banks v Cadwalladr trial was heard over five days and judgment was reserved. The case has been followed closely by several investigative reporters. The Reporters Without Frontiers emphasised in particular that “the ruling will have serious implications for journalism not only in the UK, but internationally, given the popularity of London courts as a jurisdiction for such suits, and highlights the need for greater protections for journalists facing legal threats”.

This article was first published on the IRIS Merlin database of the European Audiovisual Observatory and is reproduced on the ELR Blog with permission and thanks.

Why the UK Government’s Plan to Overturn Court Decisions is a Bad Idea

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Photo by Jordhan Madec

By Maurice Sunkin, Theodore Konstadinides and Lee Marsons, School of Law, University of Essex

The UK government is pursuing multiple legal reforms designed to rebalance “the relationship between the government, parliament and the courts” – a commitment made in the Conservative party’s 2019 election manifesto. Many of these reforms will affect how people can hold the state accountable, potentially undermining independent scrutiny and weakening the role of the courts in holding the government to account.

Among them is a review of the 1998 Human Rights Act – the law that allows people to enforce certain human rights in British courts – and proposed changes to judicial review – a process by which people can ensure that the government obeys the law.

We were given a further insight into the government’s thinking about how it might continue to “rebalance” its relationship with the judges, with details of the proposals emerging in the press. This includes a possible “interpretation bill”, which would be a yearly act of parliament by which the government would ask MPs to overturn court decisions that the government does not like.

Alongside a growing number of voices, we argue that this is a bad idea. Even if this specific policy is not adopted, these arguments are relevant to any proposal that makes overturning court decisions routine.

Problems with the government proposals

Principally, it is difficult to see what problem this is trying to solve. Parliament is sovereign and can already overturn any court decision, from a small claims case all the way to the UK Supreme Court. This proposal, then, will give parliament zero additional powers beyond those which it already has. At most, it would give parliamentarians a regular block of time to legislate about cases the government dislikes. But it is questionable whether such a regular event is necessary and it could descend into a farcical pantomime of “find judgments to disagree with to justify this exercise”, rather than a serious focus on judgments that raise genuine, principled or pragmatic concerns.

Also, while parliament can already overturn cases, doing so is by no means routine. This proposal would make the irregular regular. It would make the non-routine routine. It would remove the political heat from overturning judicial decisions. Given that the idea is apparently rooted in government frustration with losing important judicial reviews, the proposal would mark a significant indicator of the diminishing status of the rule of law in British democracy.

There are also several important pragmatic concerns. If a carefully reasoned decision of a senior court is to be overturned, this should only be after parliament has fully considered the case and its real-world implications, especially for MPs’ constituents. MPs will need to examine how overturning this case could, for example, make it more difficult for them to challenge an unlawful benefit sanction, a discriminatory stop and search or incorrect decisions about a child with special educational needs. These matters deserve careful attention. It is difficult to see how parliament could perform this assessment on multiple cases at once as part of a general annual exercise.

Parliament should also make a careful assessment of whether, for example, the problem is the whole judgment and all its consequences or only part of the judgment and only the consequences in a few instances at this particular time. On thoughtful reflection, reversing the whole judgment forever could be disproportionate.

Being more reflective about individual cases allows time for consultations, so that the government can consider the views of experts in that area of law, and more importantly, people disadvantaged by overturning the decision. This should include impact assessments to consider the consequences for less powerful, underrepresented groups like the disabled, women and racial and religious minorities.

The consequences of overturning the case for the broader constitutional system must also be examined. Would it, for example, promote or undermine government accountability, fair procedures and government obedience to the law?

It is not good law-making to overturn important judgments as part of a generic package when the consequences for ordinary people could be so great.

Retrospective decisions

Further serious problems would arise if the interpretation bill consistently operated retrospectively. This is when the new interpretation would apply not just to future cases but to all past cases as well. People and public bodies plan their budgets, allocate their resources and make their decisions based on the law as it stands. Abolishing the previous understanding of the law all at once could generate legal uncertainty, undermine confidence in the law and damage people’s expectations about what they were entitled to.

Worse, claimants may not even bother to bring some cases for fear that victories would simply be overturned retrospectively. There would be no reason to waste the time, resources and effort. Government accountability could be undermined if people were dissuaded from bringing cases on this basis. Even the apparent support for these proposals at senior ministerial levels may send a message and create a chilling effect. Again, this is legal. But it is not the right course of action. Convenience for the government is not the same thing as the public interest.

At best, the proposal to allow parliament to routinely overturn judicial decisions would be poor legislative practice unconducive to thoughtful law-making. At worst, it would be a significant nudge of the constitution in the government’s favour and away from independent judicial scrutiny. It could threaten government accountability and the rule of law and damage the status of the UK as a model of liberal democracy.

This article was first published on The Conversation and is reproduced here under a Creative Commons Licence.

Essex Research Informs Police Review

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Photo by Bruno Martins 

Research by Dr. Simon Cooper on police accountability and the role of Police and Crime Commissioners has been cited in a major nationwide review of policing.

The Strategic Review of Policing in England and Wales, which was conducted by the Police Foundation and chaired by Sir Michael Barber, has called for a radical shake-up of the way forces are run.

It cites research by Dr. Cooper, from the School of Law, which showed that the power of Police and Crime Commissioners (PCCs) to remove Chief Constables from office is having a “corrosive” effect on policing and police accountability.

Drawing on Dr. Cooper’s research, which was published in The Criminal Law Review (Issue 4, 2020), the Strategic Review specifically highlights his finding that a vital independent review process, meant to safeguard against a compromised PCC wrongly removing a Chief Constable from office, has only been used once since 2012 and didn’t impact the decision.

The authors of the report note that “such untrammelled power in the hands of one person has created job insecurity throughout the Chief Constable rank and this in turn has led to increased churn and reduced tenure.”

Dr. Cooper said: “Policing is at an inflection point. The Strategic Review comes at a time when public confidence is low and policing is under pressure. The Strategic Review will help shape the future of policing.

“The interviews I conducted find the PCC’s power to remove Chief Constables has already compromised the independence of senior officers. As currently formulated, the PCC’s s. 38 power creates an environment in which it would be possible for a PCC – effectively a layperson – to command, overrule and potentially even control a Chief Constable. We urgently require a Select Committee inquiry to re-examine the PCC’s power to remove their Chief Constable.”

Dr. Cooper’s research was based on a series of interviews with PCCs, Chief Constables, and members of Police and Crime Panels (PCPs), as well as the person responsible for introducing the current system and one of the most senior figures in policing at a national level.

This post first appeared on the University of Essex’s news webpage and is reproduced on the ELR Blog with permission and thanks.

Incremental Development of a Legal Framework for Arbitration in Emerging Markets: A Case Study of Construction Arbitration in Nigeria

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Photo by David Rotimi

Dr. Fikayo Taiwo, Lecturer in Law at the University of Essex, has concluded her Ph.D. thesis titled ‘Incremental Development of a Legal Framework for Arbitration in Emerging Markets: A Case Study of Construction Arbitration in Nigeria’.

The problem the thesis sought to investigate is the continued exportation of Africa-related disputes for arbitration outside of the continent based on a perceived lack of an appropriately attractive seat of international arbitration within the region.

Given the economic impact of arbitration activity on a nation’s gross domestic product (GDP), the issue of capital flight was especially concerning.

To this end, the aim of the thesis was dual: first, to ascertain the viability of existing frameworks for commercial arbitration in African emerging markets for the purposes of promoting their reputation as seats of international arbitration; and second, to extend the literature on the African Union’s economic integration agenda that has recently been brought to the fore again by the Agreement establishing the African Continental Free Trade Area (AfCFTA).

In dealing with the problem, Dr. Taiwo set out to investigate the main research question of the extent to which a sector-specific specialist arbitration framework could enhance the right of access to justice.

Using a hybrid methodology and the single case study design, the central argument was that, to the extent that the necessary political will is present, identifying small spaces for reform (especially through specialist arbitration frameworks) and dealing with these issues in chunks is an effective way of progressively improving the parameters of access to justice, building attractive seats of international arbitration in Africa and consequently, contribute to economic and sustainable development.

One of the original contributions the thesis makes is applying access to justice from human rights law to commercial law as a major conceptual basis for the research to address not only arbitration matters but also other issues that parties take into consideration when choosing a seat of arbitration.

The wider significance of the work lies in its ability to not only reinforce the idea that the law is part of the development and should be part of critical sectors like the construction industry but also to inform law and policy for commercial arbitration in emerging markets and international institutions.

The thesis also expands the knowledge base of access to justice and the role it plays in issues beyond the realm of human rights law and discourse.

Dr. Taiwo plans to publish journal articles from her thesis to further explore the theme of the interplay of commercial dispute resolution and human rights for sustainability, and pathways to effective regionalisation through commercial arbitration in Africa.

International Law and Transformation: Environmental Justice

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Photo by Sincerely Media

Dr. Emily Jones, Senior Lecturer in Law at the University of Essex, alongside her colleague, Dr. Marie Aronsson-Storrier, Lecturer in Law at the University of Reading, has been successfully awarded just under £5000 by the Modern Law Review to run a seminar on the theme of International Law and Transformation: Environmental Justice.

The seminar will be held at the University of Essex in May 2022 and will bring a series of experts together to discuss key issues in environmental law.

It will centre around the ability to seek transformative environmental justice by working with and through international environmental law.

Key topics of discussion will include:

  • the epistemic basis of international environmental law;
  • recent attempts to transform international environmental law such as the ongoing negotiations to create a Global Pact for the Environment or the recent recognition by the Human Rights Council of a human right to a healthy environment; and
  • the application of the law in case studies, including in crises and disasters.

Further details will be announced in due course, so keep an eye on our blog for updates.

The Rule of Law: Driving Water and Climate Inequality?

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Image: Dravyavati R., Jaipur by Rod Waddington licensed under CC BY-SA 2.0

By Dr. Birsha Ohdedar, Lecturer in Law, University of Essex

The rule of law broadly underlies the idea that ‘no one is above the law’ and that the law is created and applied fairly. The dominant liberal-legal narratives on the rule of law often do not go much beyond this. That is, they do not ascribe content about ‘what that law should be’. Rarely does this narrow ‘rule of law’ speak to any right to have law made to protect the planet and realise the needs of marginalised and deprived peoples. As Baxi puts it, there is no theory of ‘the good’ in the rule of law. There are only minimal procedural ideas that inform the dominant narratives on the rule of law.

The narrow conception of ‘the rule of law’ serves particular ideological ends. The last three decades have shown that the rule of law has been a handmaiden of economic growth and capitalism. Growth that has brought about ecological disorder at a planetary scale. For instance, the rule of law has been used as an ideological concept by international development banks – such as the World Bank and the Asian Development Bank – to pursue legal, policy and technical reforms in the Global South. Such use has transformed the reason for the law, as Krever argues, to promote the mantras of economic efficiency and entrepreneurial activity.  

Water and Climate inequality in Jaipur, India

The rule of law and its relationship with climate change can be illustrated by looking at the Global South’s water and climate conflicts. The city of Jaipur in India is a growing city in the northwestern state of Rajasthan. Like many cities in the Global South, its economy has been urbanising and growing, driven by national and international policies.

However, the urbanisation in Jaipur operates in the context of water and climate stress. In India today, 600 million people face extreme water stress, and about 200,000 die every year due to inadequate access to safe water. Climate change is intrinsically woven into this water crisis, with 44 per cent of the country under various degrees of drought in 2019, increasing the intensity of floods, cyclones and grave climate impacts. Last year, massive farmer protests, which gained worldwide attention, were partly driven by the growing water crisis in rural areas.

The ability of Jaipur to grow in deeply unequal ways has been dependent on taking water from rural communities. This has created further climate vulnerability. A key water source for Jaipur is a reservoir outside the city, connected via a pipeline. The pipeline was built in the 2000s, funded by loans from international development banks. As part of the loan conditions, there were reforms, and state utilities were corporatised. Water utilities were to be reformed to operate under market logic, driven by profit and cost-recovery, rather than treating water as a public good that served a broader social and ecological purpose.

The reforms requested by international development banks transformed how water was used and distributed. The state was now incentivised to take water and re-direct to where it earned the most money. This was for city dwellers and industrial users who paid higher tariffs for water and are more likely to pay for greater use. Poorer rural and urban communities, less financially worthy, lose out. Law and policy were central in this reform and transformation.

Law also played a role in ensuring enough water was available for the city. In earlier years, communities living around the river that now supplied water into the pipeline built small earthen dams to capture water for their use and livelihoods. The judiciary consistently upheld a government ban on these dams. This was because of a perceived threat to the sustainability of the river that was now feeding the city.

Meanwhile, groundwater, a significant water source for many, is critically overexploited in the region. Colonial groundwater laws in India have notoriously allowed landowners the right to exploit as much as they wish. While the state can restrict future exploitation in overexploited blocs, it cannot stop existing users. Participatory governance, so often tied up in neoliberal and the rule of law rhetoric, has also failed to shift power structures that depend on who owns land, has water rights, and thus wealth. The rule of law stays silent on these broader questions.

The impacts on rural communities are devastating. Communities that relied on such water for livelihoods, growing food, and day-to-day use, now see pipelines that take water into the city, passing their houses. When construction of the pipeline began, protesters were shot and killed by police. Today, communities struggle with water scarcity and water quality. As climate change intensifies, the city demands more water, and conflicts ensue. With worsening water conditions in villages, people rely on cities’ employment opportunities to migrate to urban areas.

A combination of legal, policy and technical reforms drives this ‘accumulation by dispossession’. Certain actors have benefited (namely urban industries and wealthier urban residents) and profited from the dispossession of water and other resources from the rich.

A Different Rule of Law

The lessons from this small example are that the rule of law acts as either a silent actor or a handmaiden of social and ecological plunder. The perception of objectivity and neutrality of the law masks its deployment by powerful actors. Thus, we should not assume that the ‘rule of law’ is inherently positive in our efforts to have a fairer and more habitable planet.

At the same time, the rule of law is a concept capable of a radically different meaning. Like many other concepts, such as human rights or good governance, its content can be derived and transformed as a result of concrete social, legal, and political struggle. The rule of law should be rooted in democracy. However, beyond merely the procedural, participatory sense, it can include democratic re-commoning of natural resources like water. Indeed, a ‘bottom up’, ‘ecological’, rule of law, would entail supporting the efforts of peoples’ struggles to define an ecologically and socially just law.

This article was originally published in The Rule of Law and Climate Change Blog, run by UCL Centre for Law and Environment. The post is reproduced on the ELR Blog with permission and thanks.