I have a pet theory that the compromis was drafted in two halves. One half was drafted by those who understood the law and knew how to engage the law by providing relevant provocative facts. The second half was drafted by those who tried to be legalistic, but provided a jumble of half explained and ill-conceived facts that failed to engage any substantive law.
I’m impressed with the first half of the problem. I believe the use of force and targeting issues have been presented in a crisp factual narrative, with sufficient facts and with enough uncertainty in the underlying law engaged for there to be a good debate on both sides of the problem at a variety of points along the spectrum of liability.
The second half of the problem covering the fundamental human rights engaged by bans on clothing which have a religious dimension and the OECD Convention on Combating Bribery (…blah blah blah…) is the cause of my scepticism.
The OECD Convention is the focus of a vast swath of the problem. The problem is that there isn’t enough substance in the OECD Convention, the OECD’s own reports, published commentaries or in the case law for it to reward nuanced understanding and learning.
The obligations are vague, non-self executing and the few obligations engaged by the problem have no depth. If you read the OECD’s own monitoring reports on the OECD Convention, it becomes transparent how vague, unenforceable, uncertain and irrelevant the OECD Convention is in the big picture.
I respect that the drafters thinks that the decision of the UK courts in the BAE systems case reveals something problematic in the enforcement of the OECD Convention, and they would like to show that such an interpretation is wrong because it undermines the object and purpose of the OECD Convention.
However, I don’t believe that student advocates should be required to reargue a developed version of the case presented to the House of Lord (which was pointedly ignored by Lord Bingham in his judgement) in BAE Systems on the proper interpretation and application of the convention so that the OECD can recapture their victory in the Divisional Court on the (fictional) international plane. Yet this is transparently what the compromis expects.
I won’t even start on the third element of the fourth declaration concerning NCP conduct. I struggle to understand why this vague, unenforceable and unjusticiable soft-law enmeshed in procedural guidelines will even keep a tribunal awake, let alone lead to an arguable point of wider interest in international law.
In contrast to the OECD Convention, the third issue does not occupy a vast swath of the problem. I appreciate that this is a ‘live’ issue that is worthy of debate and discussion and that students could benefit from learning about the international law framework that surrounds these issues of religious freedom and restrictions on clothing.
However, it’s also a contrived issue tacked on to the problem so that it could meet its quota of four declarations. It doesn’t flow from any of the previous issues, and doesn’t arise in the natural flow of the story told by the compromis. Its oddball nature is emphasised by its isolation from the rest of the problem legally: nothing in the analysis of issue 3 will have any impact on the other three issues in any shape or form.
For such a promising, and well drafted first half, the second half of the problem disappoints, both in law and facts. In a world where international law is filled with conflicting policy, contrasting authority and ambiguous morality to dwell on a narrow point of human rights and a sterile anti-corruption convention is to miss a golden opportunity to illustrate not only that international law can be interesting but also why it matters.