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Seton Hall Law School (where I am a professor) organized an excellent panel on the travel ban and immigration restrictions last Thursday, Feb 2. For those who wish to learn more about the legal effects of the executive order, I encourage you to watch it here.
You will see presentations by Professors Lori Nessel, Ed Hartnett and Jonathan Hafetz discussing the immigration orders, their constitutionality, and possible challenges to those orders. The panel was moderated by Professor Jenny-Brooke Condon.
This is a fast moving issue – please note this panel predated multiple developments and decisions by judges in several jurisdictions over the weekend, which considered the constitutionality of the travel ban.
To stay current, you can access all briefs and decisions at this link, which has been setup by the Civil Rights Litigation Clearinghouse at the University of Michigan Law School.
On December 1 in a meeting in the UN’s Trusteeship Council, the UN Secretary General apologized for not doing more in the UN Haiti Cholera affair, stating “”On behalf of the United Nations, I want to say very clearly: We apologize to the Haitian people … “we simply did not do enough with regard to the cholera outbreak and its spread in Haiti. We are profoundly sorry for our role.” It also announced details of a material assistance package that will total some $200 million, provided sums can be raised. A media report on the speech can be found here. The webcast is currently available here.
This meeting was eagerly anticipated, as the culmination of the UN’s change of direction, which it signaled in August of this year. After announcing that that the UN would provide some compensation in October, the UN announced a two-track approach involving better water sanitation (track one) and “material assistance” (track two) to the victims. The details of this new approach were released in a new Secretary General report.
Of particular interest is the Material Assistance Package, which is described as follows: “Track 2 is the development of a package of material assistance and support to those Haitians most directly affected by cholera, centered on the victims and their families and communities. Affected individuals and communities will participate in the development of the package. This will inevitably be an imperfect exercise, fraught with practical and moral hazards, and it has been complicated by the impact of Hurricane Matthew. The package is not likely to fully satisfy all those who have been calling for such a step, nor will it happen overnight. However, the Secretary General has concluded that it is better to take this step than not to.”
The report indicates that much work remains to be done. First, the funds for Track II ($200 million) need to be raised, and paragraphs 60 – 64 demonstrate there is no clear timeline. Second, the reports details two different approaches to assistance: community based or individual. The report notes the logistical difficulties of proceeding down this path, although it doesn’t eliminate it. Due to the absence of data on who the victims of cholera are and were, it seems likely that a community based approach will prevail.
Reactions to the announcement have been generally positive. In a press release, Brian Concannon, one of the lawyers for the victims and Executive Director of the Institute for Justice & Democracy in Haiti, stated “This marks a remarkable shift in the UN’s response, and is a major victory in the cholera victims’ six-year long struggle for compensation, cholera treatment and elimination, and an apology. Victims have demanded justice from the streets of Port-au-Prince to the courts of New York, and finally they are being heard.” However, many have been quick to pick up on what the UN did not say: that it was responsible for introducing cholera into Haiti. Philip Alston, Special Rapporteur on Extreme Poverty and author of a recent and very critical report on the UN’s actions, termed this a “half-apology” in an interview with The Guardian because the Secretary General omitted to apologize for the introduction of Cholera in the first place. He declared this a “missed opportunity.”
It is significant from another perspective as well: if the UN had acknowledged its liability and accepted responsibility for the introduction of cholera in Haiti, the material assistance could have been presented as expenses of the Organization under Art. 17 of the UN Charter, which would have given the Secretary General the opportunity to request they be added to the regular budgets (such as the peacekeeping budgets) and assessed from Member States at the normal rate.
We will be posting other reactions to the UN announcement this week: stay tuned!
Like most policy issues in his campaign, Trump’s references to the UN and multilateralism have been brief. If one searches for Trump & the UN, the main hit are statements made in 2005 that he could do a much better job renovating the UN than the UN itself!
Apart from disparaging remarks about the Paris climate change agreement, the TPP, NATO and NAFTA made in the heat of the campaign, there has been no consistent message about multilateralism. Moreover, as Deborah noted in her post earlier this week, he has already (thankfully) retreated from some of these remarks.
To the extent we can make predictions at this point however, an observation in an IPI editorial last week has merit: “a Trump presidency may challenge a post-World War II American record of establishing long-term global security alliances.” Although the Trump World Tower is directly across the street from the UN, it seems unlikely it will be much of a pied-a-terre for real engagement with the UN.
At present, we know his top pick for UN ambassador is Richard Grenell, a former UN Spokesman and current media strategist. His writings and thoughts on foreign policy are available here. We also know Trump plans to pull the US out of the Paris Agreement that only entered into force in early November. Although Ban Ki Moon has gone on record to say that he is “sure [Trump] will understand …. [and] make a good and wise decision” and shift course on global warming and climate change, a source in the Trump campaign said it was “reckless” for the agreement to enter into force before the election.
There will be important reputational effects for the US as it seeks to withdraw from this treaty, particularly if the normal exit process is disregarded. That is to say nothing of the effect on the world’s climate. Moreover, the statement runs up against a basic tenet of international law that the legal entity in international law is the state, and the government is only the representative of the state. The Obama Administration was clearly within its rights to sign the accord, and any “recklessless” must be attributed to Trump. Unfortunately, Trump’s determination to upend the Iran deal may have a similar effect: destabilizing an important pact that took years to engineer while threatening to open up the nuclear race once again.
A few issues to watch as Trump takes over the presidency in the new year include the effect of a more like-minded approach between the US and Russia at the UN. If Trump and Putin engineer a rapprochement, some of the recent deadlocks we have witnessed between the super-powers will evaporate, and may reinvigorate partnerships at the UN. But what would this look like in practice? Less opposition to Russia’s expansionist tendencies? Less use of the veto? More opposition to references to human rights, protection of civilians in Security Council resolutions? Less activism? Shifting priorities for which regions the Security Council should engage with? Certainly for Syrians, the Trump presidency does not seem hopeful. Yesterday Asad called Trump a natural ally in the fight against terrorism.
Moreover, institutions that challenge the US – take for example, the signal that the ICC may open an investigation into events in Afghanistan that implicate Americans – will both test his diplomatic mettle and provide easy fodder for critics of international institutions. Trump’s relationship with the new Secretary General Antonio Guterres will also relevant. As both assume new leadership roles, their view on issues like migration and refugees could not be more diametrically opposed. With two of the five P5 states (the UK and US) moving towards a more isolationist position, the global appetite for multilateralism has changed significantly, and the effects on dynamics within the UN will clearly be profound.
Today, on the opening of the GA, and in his final such speech as UN Secretary General Ban Ki-Moon indicated that a compensation package for victims of Cholera is forthcoming. Speaking in French (original here), he expressed regret over the recent peacekeeper sexual abuse scandals and the Cholera epidemic in Haiti, and promised a package of assistance and support for better sanitation and water systems to victims would be forthcoming.
His speech confirms a significant and welcome shift in the UN’s approach to the cholera epidemic in Haiti. Since the outbreak in 2010, the UN steadfastly denied the assertion that a causal connection existed between the cholera outbreak and a UN peacekeeper base wherein blackwater was funneled into one of the main tributaries in Haiti. The UN also rejected claims for compensation by victims and their families stating, in a now infamous letter, that the claims were “not receivable” under the UN Convention on Privileges and Immunities. For my full assessment of the Cholera Claims and the UN’s response to this and other recent mass torts claims, see my recent article in the Chicago Journal of International Law here.
The first signs of a change in the UN’s approach came about in August, when Deputy Spokesperson Farhan Haq said in an email quoted in the New York Times that “over the past year, the U.N. has become convinced that it needs to do much more regarding its own involvement in the initial outbreak and the suffering of those affected by cholera.” The Times reported he also stated that a “new response will be presented publicly within the next two months, once it has been fully elaborated, agreed with the Haitian authorities and discussed with member states.”
Significantly, this communication was released days before a widely anticipated appeals decision was handed down by the Second Circuit. In this decision, the judges rejected the claimants appeal for compensation from the UN, relying on principles of contract interpretation to uphold the key finding that the “UN’s fulfillment of its Section 29 obligation is not a condition precedent to its Section 2 immunity” under the Convention on Privileges and Immunities of the UN.
There are several factors that might explain the UN’s new response. One is a reputational concern. The release of a very critical report by Phillip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights in August, concluded: “[that] a new approach is desperately needed. The starting point is that there should be an apology and acceptance of responsibility in the name of the Secretary-General. Consideration should then be given to constructing a policy package to address the need for compensation to the victims.” Alston’s report provides an instructive and poignant account of how the UN has mishandled this claim, while also illustrating how complex mass claims are for the Organization, given shrinking budgets, the sui generis legal position of the UN, and the lack of internal precedents on providing transparent process and remedies.
Another reason for the UN’s reconsideration of its stance clearly involves the upcoming elections for a new UN Secretary General. Later this fall, Ban Ki Moon will step down, and some believe that he wants to ensure his legacy is not tarred by the perception that the Haiti case was mishandled. Another theory is that it is better for the Organization to address this case within the current SG’s mandate, rather than saddling a new SG with such an albatross.
The key issue at present is what a compensation package for victims would look like. Alston’s report urges the UN to make use of other precedents for lump sum settlements, such as the 9/11 trust fund, the USA-France agreement to compensate Holocaust victims, and the Canadian Reparations Programme for the Indian Residential School System. He further notes: “it is clear that the United Nations could make use of these various precedents in order to shape an approach to compensation as part of a broader package that would provide justice to the victims and be affordable.”
While full details of the package will be released in October, advocates are hard at work at the UN, attempting to ensure a victim centered approach prevails. A letter sent to the UN Secretary General yesterday, for example, argues that there are four necessary components of an effective remedy:
“An effective remedy requires: (1) issuing a formal, public apology to the victims of cholera in Haiti, (2) ensuring full funding of the previously announced but largely unfunded cholera elimination plan, (3) committing to providing victims of the epidemic with material compensation in a timely fashion, and (4) implementing a transparent and participatory process.”
What seems clear at this stage is that the UN is not acknowledging any legal responsibility for the introduction of Cholera into Haiti for fear of setting precedent. Nonetheless, there is an opportunity here for the UN to improve the process of claims settlement, to adhere to its obligation to provide a remedy for damages incurred, and to demonstrate its commitment to the rule of law. Let’s hope the UN does the right thing. If it doesn’t, advocates in the Haiti Cholera litigation noted in a blast email today that they still have three months to appeal to the Supreme Court.
In case you haven’t seen it, The High Commissioner for Human Rights’ recent speech addressed to “populists, demagogues and political fantasists” is well worth reading. The speech can be viewed here, and a link to the video here.
As Prince Zeid says: “The proposition of recovering a supposedly perfect past is fiction; its merchants are cheats. Clever cheats.”
The Human Rights Advisory Panel has found UNMIK, the UN Mission in Kosovo, responsible for breach of a number of human rights provisions connected with lead poisoning of the Roma population following the 1999 conflict. Under Section 2 of UNMIK Regulation No. 2006/12, t the Panel has jurisdiction over complaints relating to alleged violations of human rights “that had occurred not earlier than 23 April 2005 or arising from facts which occurred prior to this date where these facts give rise to a continuing violation of human rights”.
The facts of the case first launched in 2008 are summarized as follows:
the complainants are 138 members of the Roma, Ashkali and Egyptian (RAE)2 communities in Kosovo who used to reside in the camps for internally displaced persons (IDPs) set up in northern Mitrovicë/Mitrovica since 1999. All complainants claim to have suffered lead poisoning and other health problems on account of the soil contamination in the camp sites due to the proximity of the camps to the Trepca smelter and mining complex and/or on account of the generally poor hygiene and living conditions in the camps. The Trepca smelter extracted metals, including lead, from the products of nearby mines from the 1930s until 1999.
In the recently released decision 26-08 NM etal Opinion FINAL 26feb16 the panel noted at para. 207 that:
the heavy exposure to contamination, coupled with poor living conditions in the camps, a situation which lasted for more than 10 years, three of them within the Panel’s jurisdiction, was such as to pose a real and immediate threat to the complainants’ life and physical integrity. The Panel also considers established the bad health conditions incurred by the complainants, and especially by children and pregnant women, as a result of their prolonged exposure to lead.
Ultimately, the panel found that UNMIK breached articles 2,3 and 8 of the ECHR (including the right to life, the right to be free from degrading and inhumane treatment, and the right to family life), Arts 2, 11, 12 and 23 of the ICESR (including the right to health and adequate standard of living), Arts. 2 and 26 of the ICCPR, and various provisions of CEDAW and the CRC due to the increased risk that pregnant women and children face from lead exposure.
With regards to remedies, the Panel recommended that UNMIK:
PUBLICLY ACKNOWLEDGES, INCLUDING THROUGH THE MEDIA, UNMIK’S FAILURE TO COMPLY WITH APPLICABLE HUMAN RIGHTS STANDARDS IN RESPONSE TO THE ADVERSE HEALTH CONDITION CAUSED BY LEAD CONTAMINATION IN THE IDP CAMPS AND THE CONSEQUENT HARMS SUFFERED BY THE COMPLAINANTS, AND MAKES A PUBLIC APOLOGY TO THEM AND THEIR FAMILIES;
TAKES APPROPRIATE STEPS TOWARDS PAYMENT OF ADEQUATE COMPENSATION TO THE COMPLAINANTS FOR MATERIAL DAMAGE IN RELATION TO THE FINDING OF VIOLATIONS OF THE HUMAN RIGHTS PROVISIONS LISTED ABOVE;
TAKES APPROPRIATE STEPS TOWARDS PAYMENT OF ADEQUATE COMPENSATION TO THE COMPLAINANTS FOR MORAL DAMAGE IN RELATION TO THE FINDING OF VIOLATIONS OF THE HUMAN RIGHTS PROVISIONS LISTED ABOVE;
It is hard to tell at this stage what influence this decision will have. A Chatham House report from 2012 reported that at that date, the UN had not acted on similar recommendations to pay compensation.
“although the Panel has recommended that UNMIK award ‘adequate compensation for non-pecuniary damage’ to date no compensation has been paid out on the basis of the Panel’s recommendations.”
Nonetheless, the decision creates important precedents in other ways. It is to be contrasted, in particular, with the fate of a decision rendered in 2011 under a different process established by the General Assembly, in which the UN’s immunities blocked the claims. I discuss this decision in a recent article on mass torts against the UN, and copy the relevant paragraph below:
This claim was brought by private claimants to the U.N. under a procedure established by General Assembly Resolution 52/24768 within six months from the time of the injury, asking for compensation and remedies for economic losses. The U.N. rejected the claim on July 25, 2011, stating by letter that the claims “do not constitute claims of a private law character and, in essence, amount to a review of the performance of UNMIK’s mandate . . . therefore, the claims are not receivable.” The U.N.’s response gave no explanation for why these were deemed to be public law claims, other than to note that the claims “alleged widespread health and environmental risks arising in the context of the precarious security situation in Kosovo.” In a more recent communication addressing the U.N.’s position on private torts claims generally, the U.N. added the following justification for its rejection of the Kosovo claim: The claims were considered by the Organization not to be of a private law character since they amounted to a review of the performance of UNMIK’s mandate as an interim administration, as UNMIK retained the discretion to determine the modalities for the implementation of its interim administration mandate, including the establishment of IDP camps.
The merits decision was issued after the case was refiled in October 2011 pursuant to the decision noted above. Significantly, the reasoning was similar to that used to reject the claim against the UN for bringing cholera to Haiti.
Importantly, and for the first time, meetings will soon be held with all candidates for the post of UN Secretary General, enabling them to present their candidatures. Member States will also have the opportunity to ask questions. Mogen Lykketoft, president of the GA, has publicized his plans for these meetings in letters here and here.
A current list of candidates (and their accompanying documents) for the position is available here, and includes the recently announced Helen Clark of New Zealand, Antonio Guterres of Portugal, Danilo Turk of Slovenia, and Vesna Pusic of Croatia. The informal dialogues noted below are scheduled for April 12-14, and will be webcast on UN TV: http://webtv.un.org.
Tuesday, 12 April 2016 [Trusteeship Council]
Wednesday, 13 April 2016 [Trusteeship Council]
Thursday, 14 April 2016 [Trusteeship Council]
9 AM – 11 AM
|Dr. Igor Lukšić||Dr. Danilo Türk|
11 AM – 1 PM
|Ms. Irina Bokova||Dr. Vesna Pusić||Helen Clark|
3 PM – 5 PM
|Mr. António Guterres||Ms. Natalia Gherman||Dr. Srgjan Kerim|
Other organizations are also holding meetings with the candidates, such as the International Peace Institute (IPI) whose conversation with Dr. Pusic was broadcast yesterday and can be viewed here.
Despite this new process, a recent New York Times article suggests this move towards more dialogue will have little substantive effect:
In the end, the selection will be made by the five permanent members of the Security Council, who will send that person’s name to the 193-member General Assembly for approval. As in the past, the deliberations are likely to be shaped more by diplomatic jockeying between Moscow and Washington than what the candidates say or do in public hearings that start next week. The Russian ambassador, Vitaly I. Churkin, made this clear to diplomats who asked him about the new pressure for transparency.
Given recent negative press about the relevance of the Organization, this possibility makes it all the more important for Member States and civil society to strategically engage the candidates, and raise agenda setting items early. For background on the push for a new and more transparent selection process, see my post here.
Some of the issues that are being raised with the candidates include qualities of a new SG (with gender being a frequently discussed topic in the current campaign); how the UN should respond to new threats to peace and security including asymmetrical warfare, whether we need more peacekeepers, and how their quality (training) can be maintained and improved.
Another frequent question is how the UN should respond to claims against the Organization, including the Haiti Cholera case and recent allegations of sexual abuse by UN peacekeepers. To date, Danilo Turk has been most concise and convincing on this point, stating in the Times article noted above that he hoped the organization would “provide the victims with a fair process and an effective remedy.” Dr. Pusic’s response in the IPI interview yesterday was disappointing: she suggested more study was needed, and quickly moved on.
What questions would you like to pose to Secretary General Candidates?
A transcript is now available for the Haiti Cholera Appeal: Georges, et al. v. UN Oral Argument_ActiveUS(153242982)_ActiveUS(1)-Final
In addition, the audio recording is available here.
Of particular note were questions from the judges that addressed (i) whether domestic courts should have the right to determine the adequacy of remedies in tort actions involving the UN, (ii) why states parties have not done more to insist the UN create the mechanism envisioned by Art. 29 of the CPIUN, (iii) how this would be dealt with in the US if it had been the US army that had introduced cholera; and (iv) whether an ICJ advisory opinion is possible.
For my take on this case and the scope of UN immunities in mass torts cases, see The UN As Good Samaritan: Immunity and Responsibility, in the most recent volume of the Chicago Journal of International Law.
In a surprise announcement late last week, the Second Circuit granted a hearing in the Haiti Cholera Case. The hearing will take place tomorrow, and the lawyers will have had only 4 days to prepare. While no reasons were given as to why the hearing was granted so suddenly, the speculation is that upon reading the papers, at least one or more judges decided a hearing was warranted.
If you are in New York on March 1, and want to attend the hearing here are the details:
What: Second Circuit appeals hearing in Georges v. United Nations.
When: Tuesday, March 1, 2016 at 2pm
Where: Thurgood Marshall U.S. Courthouse 17th Floor, Room 1703 40 Foley Square New York, New York 10007
Each side will be granted 10 minutes.
As soon as a transcript is available, I will post it on OJ.
Chimene Keitner has revised and updated David Bederman’s 2006 treatise on International Law Frameworks. This highly readable (and short) text addresses key cases, core disputes, and essential treaties in international law. Following Professor Bederman’s passing in 2011, Keitner was asked to step in and take over the production of a new edition. In the preface to this 4th edition, Chimene describes how she has updated and adapted the book:
The approach of this edition is consistent with that of previous editions, but I have modified the structure in places and added substantial discussion of recent developments. The volume is still divided into four parts. The first part provides an overview of the international legal system and discusses the nature, history, and sources of international legal rules, including treaties and custom. It also introduces mechanisms for the peaceful resolution of international disputes, including the role of the World Court (previously saved for the end of the book).
The second part focuses on the subjects of international law, including but not limited to States. Although somewhat exaggerated, there is much truth to the view that the “old” law of nations considered only States to be worthy of legal attention. Today, individuals, juridical persons (including business associations), and organizations may also be considered “subjects” of international law that can bear both rights and responsibilities.
The third part canvasses substantive areas of international legal regulation, including human rights (with a new discussion of global migration), as well as “objects” of international control such as land and maritime boundaries, the international environment, and the global economy. It also considers the law of countermeasures and the laws governing the resort to, and use of, armed force. The chapters on the use of force and armed conflict include new reflections on the role of government lawyers and consider new developments in substantive law in an era of drones and “cyberwarfare.”
The fourth and final part considers the relationship between domestic law and international law. This is the portion of the book most closely geared to the demands of U.S. law practice. At the same time, it introduces readers to other countries’ views on issues such as jurisdiction, immunities, and related considerations in the conduct of foreign policy. A new concluding chapter reflects on key challenges and opportunities for today’s international lawyers, including managing global pandemics, regulating cyberspace, and addressing global inequality.
Many of us have used this book as a supplement, a primer, or even as a core textbook to be read in conjunction with primary source materials. If you would like to pre-order or request a complementary copy of the book, here is the link.
After attending a great panel at ESIL in 2014 on International Law and Film, I’ve been thinking about how to integrate film into my public international law class. I’ve compiled a list of international law films (with help from colleagues and fellow bloggers) that make for excellent viewing. In a subsequent post, I’ll offer some thoughts about teaching international law through film.
Zero Dark Thirty (Bin Laden)
Team America (Terrorism, North Korea and WMDs) (not on the serious side of international law movies!)
The Interpreter (filmed in the UN)
Argo (Iran Hostage Crisis)
The Reader (War Crimes Trial in Germany)
Battle of Algiers (Algerian War of Independence)
Hotel Rwanda (Genocide in Rwanda)
Woman in Gold (Nazi Art Theft, FSIA)
The Whistleblower (Post-War Bosnia)
Captain Phillips (Piracy)
Blood Diamond (Conflict Diamonds)
Lord of War (Arms Dealing)
War Witch (Child Soldiers)
Star Wars (Trade Dispute prompts Armed Conflict in Outer Space) J
Bridge of Spies (Cold War)
The Constant Gardener (Diplomacy, Pharmaceuticals, British High Commission in Kenya)
Judgment at Nuremberg (Nuremberg Trials)
The Reckoning (The ICC)
Last Station before Hell (UN peacekeeping)
Sons of the Clouds: The Lost Colony (Western Sahara)
The Gatekeepers (Shin Bet)
Taxi to the Darkside (Torture, Afghanistan)
All Rise (Jessup Competition)
An alternate list of international law films compiled by Lyonette Louis-Jacques at the University of Chicago Law Library with more foreign / older content available is here.
Do you have additional movie ideas? Please add other titles using the comments box below.