Second CALR Staff Research Seminar

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A second staff research seminar was held on 19 March 2018 and featured two presentations from members of the International Law and Human Rights Unit.

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Noëlle Quénivet, Associate Professor in International Law and Head of the aforementioned Unit, started her presentation entitled ‘Is Duress a Successful Defence for Children Having Committed War Crimes?’ by explaining that often child soldiers are viewed as victims although they are involved in international crimes. Scholars argue that if they were to be prosecuted they would not be found guilty, notably because they would be able to use a number of defences to negate and/or excuse culpability. One of the most common defences cited in literature is duress which is defined as the compulsion of a perpetrator to commit a crime because he/she fears for his life and limb, the threat stemming from another person.

Noelle contended that the strict application of the requirements of duress actually leads to the conclusion that this defence cannot be successfully invoked by child soldiers. This is mainly due to 1) the lack of a contextual approach in the application of the defence of duress and 2) duress being viewed as a justification rather than an excuse. A potential solution would be to understand duress as an excuse and integrate some contextual elements into the elements of this defence.

First, it recognises the wrongfulness of the act whilst stressing that there is no criminal intent. This would ensure that the gravity of the acts children commit is recognised whilst the children’s lack of criminal intent is acknowledged too. Indeed, research shows that children who commit international crimes are not devoid of moral values and in fact feel culpable.

Second, the defence of duress would not require sacrifice or martyrdom. Duress as a justification requires the act to cause no greater harm than the harm that would be inflicted upon the perpetrator. Understood as an excuse, the defence of duress would mean that children only need to make an ‘understandable choice’.

Third, it would acknowledge the lack of autonomy of the child soldiers. After all excuses focus on the actor whilst justifications focus on the act. In the case of child soldiers it would mean understanding the limits of their agency as they are reduced to a tool by means of which another person commits murder. Yet, as Noelle explained, even such a broad understanding of the defence of duress does not offer a comprehensive defence to children who have perpetrated international crimes. In other words, child soldiers are unlikely to be able to avail themselves to this defence.

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The next speaker, Amy Man, Lecturer and PhD Candidate at the Bristol Law School, presented a paper on ‘New Players and Old Rules: A Critique of the China-Ethiopia and China-Tanzania Bilateral Investment Treaties’ which is due to be published in late 2018. Amy began by explaining that international investment agreements which are formed by specific chapters in free trade agreements, regional agreements and a complex network of bilateral investment treaties (BITs) are often silent on social issues such as human rights.

The neoliberal assumption is that investment treaties boost the economy of developing States. However, this is still unconfirmed. The reality is that increasingly such treaties have a negative impact on the society of developing States. Indeed, such treaties create competing obligations in the name of investment protection. These obligations often lead to the host State to freeze its legislation (which is known as ‘regulatory chill’) to avoid disputes with foreign investors. This ‘regulatory chill’ prevents the host State from introducing labour and welfare laws as well as from development policies and measures that comply with the concept of sustainable development.

Amy argued that China, as an emerging and prominent actor in international investment law, is an innovator inasmuch as it has included the principle of sustainable development in bilateral investment treaties whilst recognising the importance of economic development and mutual cooperation. The most notable example is the China-Tanzania BIT. Under this BIT, the concept of sustainable development is explicitly referenced in the preamble, which highlights that the substantive provisions in the Agreement need to be read from the perspective of sustainable development. Furthermore, under the national treatment principle articulated in Article 3(2), the host State (which is most likely to be Tanzania) is allowed to adopt measures to promote local entrepreneurship. In contrast, the principle of national treatment is conspicuously absent from the China-Ethiopia BIT. Since Tanzania is the main recipient of capital in that particular relationship, the inclusion of this provision is remarkable as it demonstrates China’s more nuanced approach to its host partners. It also alludes to a Chinese approach to investment that is more in line with the concept of sustainable development, which is based on intergenerational equity.

Amy argued that incremental changes, such as Article 3(2) in the China-Tanzania BIT, in Chinese investment agreements are a step in the right direction. However, China is only one actor in a complex regime. The more traditional capital-exporting actors in international investment law must also develop an approach based on sustainable development, which needs to be evident in their investment agreements.

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