Author Archive for
Kristen Boon

International Law Movies

by Kristen Boon

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.

Dramatizations

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)

Documentaries

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.

The ICC and Mainstream TV: A Recent Episode of The Blacklist

by Kristen Boon

I was watching a recent episode of the TV show The Blacklist the other day, when much to my surprise there was a segment on the International Criminal Court.

As the summary recounts:  “The Director wakes up on the Venezuelan president’s jet, where Foreign Minister Diaz arrests him. Red calls Hitchin to say they’re on their way to the Hague, where The Director will be tried for crimes against humanity…”

On the one hand, there is an accurate back and forth about whether the ICC has jurisdiction over The Director, because the US is not a party to the ICC. (Venezeula, of course, is).

On the other hand, the writers glossed over the fact that “delivering” a high level US government official to the ICC’s front door does not equal a referral – the ICC has the power to determine whether its jurisdictional requirements are met under Arts. 12 & 13 of the Rome Statute.

The other creative fiction of the show is that the ICC has an ongoing investigation into US activities (drones, torture, and rendition).    In reality, the ICC has opened an investigation into the situation in Afghanistan, which implicates the US.   It was first reported in the press two years ago.   The 2015 Report on OTP activities (at p. 31) indicates this investigation is still ongoing.  (Hat tip to Kevin Heller for confirming the current status of this probe).  Nonetheless, any ongoing ICC investigations are far narrower  than what the TV show suggests.

I confess to great satisfaction in watching the ICC enter popular culture, even if some creative liberties are being taken as to its jurisdiction and potential reach over American officials.

Spoiler alert: here is the relevant part of the script!

Red: Oh, your God can’t help you now, Peter. You’re traveling over the Atlantic, on the Venezuelan President’s Airbus, – on your way to The Hague.
The Director: You’re insane.
Red: I wouldn’t know. But you’re going to have the distinguished honor of becoming the first American official ever to be charged with even a single war crime, let alone the slew of them you will undoubtedly be accused of – before the week is out.
The Director: This won’t happen. United States isn’t party to the Rome Treaty. We don’t recognize its authority.
Diaz: But Venezuela does. And cases can be referred to the court by any country that is a signatory. You know as well as I do, even better given your position, the international court has been investigating the US government and the CIA for any number of alleged crimes. The drone program, the rendition of foreign citizens, torture as a means of interrogation.
Mr Diaz: The Chief Prosecutor has made it clear. He does not need American permission to move forward.
Red: He needs an American in the flesh. The court will not try anyone in absentia. So far, no country has had the courage to deliver one of your countrymen to the court until now. You’re a trendsetter, Peter. Who knew?
Director: I am the CIA Director of Clandestine Services. Do you have any idea what’s gonna happen to you? This is an act of war. My government will never let it stand.
Red: Precisely what I’m counting on.  …..

Red: Laurel, Raymond here. Here’s where we stand. In a handful of hours, this jet will land in Rotterdam, it will be met by the Dutch federal police, who will escort the Director to ‘S-Gravenhage, where the global spectacle of a high-ranking American official charged with war crimes will begin.

Selecting the New UN Secretary General

by Kristen Boon

With the end of Ban Ki-Moon’s term on the horizon, discussions about the next UN Secretary General, and more importantly how that person should be chosen, have moved front and center. A joint letter by the Presidents of the GA and Security Council was released on December 15, which sets forth a slightly new process.  It states:  “[The Presidents] will offer candidates opportunities for informal dialogues or meetings with the members of their respective bodies, while noting that any such interaction will be without prejudice to those who do not participate.”   These dialogues would take place before July 2016.

As the New York Times reported yesterday the letter remains vague on 2 points. First, on the question of whether a woman should lead the organization for the first time in 70 years it encourages nations to nominate “women as well as men” … second, on the tradition whereby each region gets a shot at the top job (with Eastern Europe being next in line) the language gave a nod to Russia’s concerns that “we note the regional diversity in the selection of previous secretaries general.”  Note the reference to past practices:  previous secretaries general.

Differences of opinion between the UK and Russia on the process held up the finalization of this letter for some time. The backstory can be found here.

This letter was issued pursuant to GA resolution 69/321 of 11 September 2015 provided a mandate for the GA on the issue, and “Requested the Presidents of the General Assembly and of the Security Council to start the process of soliciting candidates for the position of Secretary-General through a joint letter; to jointly circulate on an ongoing basis the names of individuals that have been submitted for consideration as candidates; and decided to conduct informal dialogues or meetings with candidates, without prejudice to any candidate who does not participate.”

To date, the campaign 1 for 7 billion reports 27 confirmed or prospective candidates including Angela Merkel, Helen Clark, and Danilo Turk. (Click on the candidates tab for more information).  General background on the efforts to change the appointments process is available here and here.

Transitional Justice and Judicial Activism Symposium

by Kristen Boon

The focus of Ruti’s article is the developing primary norm of the “right to accountability”, which derives from international jurisprudence associated with disappearances. Ruti describes the core content of this right as one that “implies a set of obligations on the state, largely read into prevailing treaty rights protections involving personal security, such as the right to life, whether under the International Covenant on Civil and Political Rights or the European or Inter-American conventions on human rights.” Like arguments for a right to democracy, it has its aspirational dimensions. Yet, Ruti taps into some very interesting undercurrents that implicate state responsibility, and it is this angle that I wish to comment on today.

As conceptualized in her article, the right to accountability is a primary rule of international law that is based in treaty law, and particularly the right to life. It is also connected to other sources such as the International Convention for the Protection of All Persons from Enforced Disappearances, and Article 7 of the Statute of the ICC. There is, of course, no “right to accountability” as such.   The primary norm is based on patterns of jurisprudence developed through judicial tools which courts have adopted to overcome obstacles associated with cases involving disappearances, whether jurisdictional (such as time bars), or stemming from a state’s refusal to recognize the disappearance.

A central claim of the article is that this primary norm has developed as a remedy to the limitations of secondary rules, such as rules on attribution under the Articles on State Responsibility. In this, as Ruti notes, there are parallels with terrorism and cases of rendition, that have led to the elaboration of new duties, such as a duty to prevent, and creative thinking about omissions and due diligence standards. I have discussed these trends in a recent article in the Melbourne Journal of International Law available here.

Nonetheless, given the connection between state action and disappearances, the secondary rules of state responsibility remain important. Ruti describes some of these connections: in Heliodoro Portugal, for example, she writes that “the court drew on the principle of the continuing breach of state responsibility rather than fully conceiving the failure to provide accountability as an autonomous internationally wrongful act— which, of course, obviously continued up to the time the petition was brought, and persisted until and unless there was state explanation.”   Ruti also discusses the attribution of acts to a state, and notes the IACHR’s profound contributions to its development and application, beginning with the Velasquez Rodriguez case. Importantly, she highlights that courts are not adhering to the traditional two-step process of identifying attribution and wrongfulness, instead determining there is “a right to accountability” regardless of whether it can be established that the original human rights abuses were themselves internationally wrongful. Finally, in Goiburu, she discusses connections between forced disappearance and violations erga omnes, which trigger the responsibility of other states and the international community as a whole.

One interesting dimension of this article is that it points towards a unified theory of responsibility that combines international criminal law, human rights law, and global / criminal justice. Another is that it highlights the problem of slippage in international law: states are increasingly outsourcing key activities, including activities that have been linked with disappearances, raising the question of whether one high level of control is the appropriate default standard in international law.   Finally, this study supports the proposition that in certain areas of law- which may now include disappearances – the relevance of secondary rules is waning.  As such, the piece provides interesting insights into the status of secondary rules of state responsibility in a variety of regional courts.   There are a series of open questions that follow: Might this jurisprudence constitute a lex specialis for attribution doctrines in the field of human rights? More generally, what would a unified theory of responsibility that encompasses states, international organizations, individuals, and non-state actors look like? What would its core components be? Finally, are attribution doctrines under the ASR fit for the purpose today, given the changing nature of the modern state, including prevalent out-sourcing and multilevel governance situations?  I would be very interested in Ruti’s take on how to remedy the gaps in the ASR given the role of non-state actors in the cases she examines.

Final Compendium of High-Level Review of UN Sanctions Proposes Reforms to System

by Kristen Boon

The Compendium of the 2014 UN High Level Review of Sanctions, including its 150 recommendations, is now available here on the UN Website.  The Document number is A/69/941 – S/2015/432.  The review, sponsored by Australia, Finland, Germany, Greece and Sweden, took place from May –  November 2014, and involved a series of meetings between Member States, the Secretariat as well as other UN bodies.

The starting point of the review was to look at the 16 regimes in place, and discuss how to improve the existing sanctions system from there.  The compendium has many useful recommendations and observations.  Here are a few:

  • It emphasizes the move towards using sanctions to address trafficking in wildlife products and natural resources;
  • It highlights the importance of using sanctions to address transnational threats and new technologies; (Recommendation 146)
  • It recommends using sanctions to better address existing and emerging threats on, for example, incitement to genocide, sexual violence in conflict, and gross violations of women’s rights; (Recommendation 132)
  • It advocates the establishment of a Trust Fund for sanctions implementation assistance, a proposal originating from Jordan. (Recommendation 126).  While not going so far as to reference Article 50 of the UN Charter (special economic problems), together with recommendations 123 – 125 on assessments for assistance, it charts a future path towards better coordination and provision of assistance.
  • The Compendium also proposes better coordination between the ICC and the UN, highlighting the absence of clear processes in the past, and the possibility of future synergies.  For example, the compendium makes the very sensible recommendation of automatically listing individuals (where a relevant sanctions regime applies) after an arrest warrant has been issues by the Pre-Trial Chamber.  (Recommendation 100).

The compendium is a useful and current document, that gives a current state-of-play of UN sanctions while adding onto the Interlaken, Bonn and Stockholm and Greek initiatives of prior years.  Nonetheless, it must be noted that an attempt to pass a Security Council resolution last November on some of these same issues failed.   See the Security Council report assessment here of a draft resolution that was debated but never brought to a vote.   Attempts to strengthen capacity building, assistance and implementation for UN sanctions remain controversial – whether because of ongoing hesitation about the robustness of the tool, or because of opposition to strengthening the Secretariat’s policy making capacities.

What impact this document will have remains to be seen, but as the race heats up for the next Secretary General, one hopes that the recommendations will form part of the campaign, and further that future Secretary Generals will play a greater role in sanctions implementation, by for example, including substantive reports on sanctions in their briefings to the Security Council.  (See recommendation 50).

How Broad is the UN’s Immunity? More on The Haiti Cholera Case

by Kristen Boon

If you haven’t seen it yet, the US recently filed its amicus brief in the Haiti Cholera appeal – it is available here: Haiti US amicus 2nd Circ. Predictably, the brief makes the case for absolute external UN immunity, and advances largely the same arguments put forward in prior filings.

And yet, there are a number of powerful counterarguments to the position put forward by the US government.

  • At the time the Convention on Privileges and Immunities of the UN (CPIUN) was drafted, the whole field of privileges and immunities of IOs was largely “uncharted territory,” and founding States projected what immunities they thought the UN would need with little information from practice;
  • The legislative history of the CPIUN confirms that the biggest fear of UN founding states was the threat of a member state trying to control the UN, not classes of private plaintiffs bringing torts cases against the Organization;
  • Article 105 of the UN Charter limits the Organization’s immunities before national courts to what are functionally necessary, and under Article 103, the Charter trumps conflicting treaties, arguably including the broader language of the CPIUN.
  • Although settling claims might place a considerable financial burden on the Organization, the UN could purchase liability insurance to cover itself against large claims;
  • The concern that Troop Contributing Countries will be deterred from cooperating with the UN if it has anything less than absolute immunity has no empirical support. In fact, what appears to be of far more concern to TCCs is the expansion of “robust” peacekeeping missions in which peacekeepers have an offensive mandate.

As a result, although the UN’s external immunities are clearly very broad, there is a very strong argument they are not absolute.  These arguments are advanced in my forthcoming article on the Haiti Cholera case (see bottom of post for more information).

In another important development, earlier this year the UN attempted to redefine the scope of its internal immunities, under Art. 29 of the CPIUN.

In a February 19, 2015 letter to Members of Congress, the Secretary General wrote:

“In the practice of the Organization, disputes of a private law character have been understood to be disputes of the type that arise between private parties, such as, claims arising under contracts, claims relating to the use of private property in peacekeeping contexts or claims arising from motor vehicle accidents. . . . The claims in question were not receivable pursuant to Section 29 of the General Convention [as they] raised broad issues of policy that arose out of the functions of the United Nations as an international organization, they could not form the basis of a claim of a private law character [….] For the same reason, it was determined that these claims were not of the type for which a claims commission is provided under the SOFA, since the relevant provision of the SOFA also relates to claims of a private law character.”

A November 2014 letter from the UN’s Senior Cholera Coordinator to several Human Rights Special Rapporteurs reinforces the UN’s restrictive new interpretation of private law claims:

In the Practice of the Organization, disputes of a private law character have been understood to be disputes of the type that arise between two private parties. Section 29(a) has most frequently been applied to claims arising under contracts between the United Nations and a private party, to those relating to the use of property in the context of a mission away from Headquarters, and to claims arising from vehicle accidents.

What is striking about these letters is that torts—other than those arising from motor vehicle accidents—have been eliminated from the scope of the UN’s duty to compensate for private injury.  In prior documents, the UN had included identified two much broader types of private law claims: commercial agreements that the UN has entered into, and claims by third parties for personal injury, death or property loss or damage, specifically as caused by actions of UN peacekeepers.           This recent categorical elimination of torts other than those arising from motor vehicle accidents is significant: injuries are predictable aspects of any peacekeeping operation, and they should not be designated as public simply because they affect the UN’s potential liability.

In parallel, the Secretary General suggested an enlarged category of public law claims for which the UN would be internally immune. The 2014 letter to the Human Rights Special Rapporteurs on the Haiti case states:

“Claims under Section 29(a) are distinct from public law claims, which are understood as claims that would arise between an individual and a public authority such as a State.” The letter goes to suggest that “on the international level, these claims may be addressed in various ways, such as through political, diplomatic or other means, including a body established for that specific purpose.”

For the full text click here:  Haiti Nov14 explanation to SRs

This wording is deeply troubling in that it largely eliminates the UN’s duty towards third-parties, despite the recognition in General Assembly resolution 52/547 that such duties exist.  In my article, I take issue with the UN’s attempt to redefine the scope of its internal immunities, and argue that member states should join the conversation about what immunities mean to the UN today.

For an early copy of “The United Nations as Good Samaritan: Immunity and Responsibility” forthcoming in the Chicago Journal of International Law (2015) please contact me at kristen [dot] boon [at] shu [dot] edu.

Human Rights Position at Seton Hall School of Diplomacy

by Kristen Boon

My colleagues at the Diplomacy School have just alerted me to an interesting new opportunity.  All who are interested should apply.  Here is the job ad:

The School of Diplomacy and International Relations at Seton Hall University invites applications for a tenure-track assistant professor position in international human rights law to commence in the 2016-2017 academic year. Applicants must possess a J.D. A Ph.D. in a related discipline is desirable. The expertise to teach and develop other courses related to international law is a plus, including courses in European Union Institutions, or courses related to the Middle East. The position is subject to final budgetary approval.

Successful applicants will demonstrate the ability or potential to teach effectively in a professional school at both the undergraduate and graduate levels. All applicants should have strong research backgrounds or demonstrate substantial potential for conducting important academic research in their field of specialization.

The School of Diplomacy and International Relations prepares graduate and undergraduate students for careers in international affairs and operates in an exclusive alliance with the United Nations Foundation/United Nations Association of the United States of America.

Located only 14 miles from New York City, Seton Hall University is the oldest and one of the largest diocesan universities in the nation. Seton Hall has recently developed a required, undergraduate Core Curriculum, and occasional teaching of a course or two within this curriculum will be required.

All candidates should provide a curriculum vitae, examples of scholarly work, evidence of teaching effectiveness (if available), three letters of recommendation, and a graduate transcript. To receive full consideration, materials should be sent electronically by October 2, 2015 via www.shu.edu (follow employment links). Letters of recommendation should be sent to humanrightssearch [at] shu [dot] edu.

Members of UN Security Council Discuss LGBT Issues

by Kristen Boon

13 of the 15 members of the UN Security Council met yesterday to address LGBT issues for the first time in a closed session chaired by Chile and the US.     The focus was on persecution of gays in Syria and Iraq.    As an Arria-formula meeting, the discussion was confidential, however news reports after indicate the group discussed the Islamic State’s targeting of LGBTQ residents of Iraq and Syria.   Samantha Power, US Ambassador to the UN, told the diplomats that “we are coming together as a Security Council to condemn these acts, to demand they stop, and to commit to one day bringing the perpetrators to justice. That unified condemnation matters.”

See the news reports here, here and here for more details.

UN Ombudsperson Kimberly Prost to Leave Post in July

by Kristen Boon

Kimberly Prost, the current UN Ombudsperson, will be leaving her post in mid-July when her term expires.   However, no replacement has been appointed, nor has the UN implemented a transition plan for her eventual successor.   The issue of what will happen to the current cases before the office, or to individuals who are unlucky enough to apply for delisting after July 14 is significant.   It highlights the fragility of this important institution at the UN, and suggests that not all member states wish it to function effectively.

Despite the considerable progress the UN has made in developing the institution of the Ombudsperson, which addresses review and delisting requests for individuals on the Al Qaida sanctions regime, it has become apparent that the institution may soon be synonymous with its first occupant: Ms. Prost.   The institution has not been streamlined into the UN system, and despite its important work, her status has been that of a consultant.  While some UN Member States initiated demarches to try to have her term extended, they were unsuccessful. It is unclear what the future will hold for the institution now that she is departing, which is significant rule of law problem.

The issue was extensively discussed at a recent conference on UN Sanctions at Leiden University in the Netherlands.   The program is available under the committee documents tab here.    In addition to the fragility of this institution, its exclusivity was discussed in detail.   The Ombudsperson’s Office has jurisdiction to review and delist individuals on the Al Qaida sanctions lists, but individuals and entities on the 15 other sanctions lists do not have access to this process. Instead, they may request a review from the Focal Point, which has a far less developed procedure and does not have the characteristics of an independent institution.   A number of countries have argued that the Ombudsperson’s jurisdiction should be extended to other regimes, although politically, it is clear that that if that happens, it would be the various sanctions regimes involving situations in Africa that would benefit, but not in the short or medium term, those involving WMD sanctions.  Information on the focal point is available here. A helpful overview of the differences between the Focal Point and Ombudsperson and links to other documents is available here.

New app facilitates evidence collection for atrocity crimes

by Kristen Boon

Eyewitness.org has released a new app that creates a secure “digital locker” for those who seek to record digital evidence of atrocity crimes for eventual use in by courts. The app has been produced by the International Bar Association and the legal services division of Lexis Nexis.   Information is available here.    The app was developed after controversies regarding the veracity of videos in other contexts.

By using metadata, the recordings can verify the location via GPS coordinates, and date / time of the collection, and confirm no editing has taken place.  The app also contains a “destruct” feature if the user wishes to delete it and the material in an emergency.

What will eyewitness do with the footage?   Their webpage reports:

eyeWitness will use the footage to promote accountability for international atrocity crimes, specifically war crimes, crimes against humanity, genocide, and torture. When eyeWitness receives the images, a copy is transferred to a specialised database for analysis by the eyeWitness expert legal team. The team will analyse the videos to determine if they may show that an atrocity crime was committed. The eyeWitness legal team becomes the advocate for the footage, working continuously with legal authorities in relevant international, regional, and national jurisdictions to ensure the image is used to bring to justice those who have committed international atrocity crimes. In some cases, particularly when an atrocity is brought to light that has not received international attention, eyeWitness may provide a copy of the footage to media to raise awareness of the situation and advocate for investigation.

The development of apps such as this one may revolutionize the investigation of international atrocities.  They provide potentially very crucial streams of evidence, and facilitate “citizen policing.”   In the domestic context, there are analogies to a police accountability app released by the ACLU last week.

This app is a significant development in the field of atrocity investigations for the many “citizen journalists” willing to risk injury, arrest and maybe even death to document crimes.  Yet it still raises some important questions.  Traditional investigative authorities, for example, are subject to investigation protocols that are intended to yield highly probative evidence.   Given the unstable situation in Syria, Ukraine, Iraq the DRC (where the IBA hopes the app will be used) and the limited jurisdiction of international courts, traditional authorities have not been able to perform their role of documenting and investigating ongoing atrocities. Nonetheless, the absence of trained professionals and the lack of protocols, means that certain safeguards will not be available.

In addition, if lawyers tried to to gain access to the stored material, there may be battles over rights of confidentiality.   Indeed, given the massive amount of evidence apps like this could produce, this may be no small challenge for Lexis Nexis.

Although eyewitness does not commission any particular investigations, this technology is linked, in  a broader sense, to the work of private organizations like the Commission for Justice and Accountability (CIJA), which has conducted independent investigations in conflict situations, often before staff from international criminal tribunals are on the ground.   This article by Mark Kersten in the Washington Post lays out the pros and cons.   On the one hand, privately funded investigations may speed up the investigation of international crimes, and ensure that crucial evidence is not lost.   The individuals who work for these organizations also have a self-described higher risk tolerance than public bodies. On the other hand, impartiality and chain of evidence are key concerns: prosecutors fear the evidence collected by these organizations may not stand up in courts of law.

The development of this technology, and the parallel trend towards privately funded investigations, suggests that a profound change in the way international crimes are investigated is underway.

 

Appeal Launched in Haiti Cholera Case

by Kristen Boon

Plaintiffs have appealed the January 9, 2015 decision of the Southern District of New York, that the United Nations is immune in the case Delama Georges et al. The appeal brief, filed by the International Institute for Justice in Haiti, is available here: Georges v UN – Principal Appellate Brief 5.28 Final.

The contentions on appeal are as follows:

1.  Whether the District Court erred in ruling that Defendants UN and MINUSTAH are entitled to immunity despite having violated their treaty obligation to provide a mode to settle private law claims

2. Whether the District Court erred in ruling that Defendants Ban and Mulet are entitled to immunity in this case simply because they “hold diplomatic positions”

3.  Whether the District Court erred in failing to address the U.S. Plaintiffs’ argument that granting immunity in this instance violates their constitutional rights to access the federal courts.

These arguments hew closely to the position espoused in the SDNY, while emphasizing the UN’s failure to provide reasons and a remedy for what plaintiffs persuasively contend is a private law claim. The plaintiffs focus on Sections 2 and 29 of the Convention on Privileges and Immunities of the UN (CPIUN). The first sections grants immunity to the United Nations from all forms of legal process, while the latter provision requires the UN to settle private law disputes by alternative means. As argued at the October 2014 hearing, the plaintiffs contend that the United Nations and MINUSTAH have violated article 29 in failing to provide the plaintiffs with an alternative forum, and that this failure constitutes a material breach of the treaty.  One issue that is not fully explored is whether private litigants can benefit from an alleged breach and request suspension, if that treaty was concluded between states.

The Plaintiffs also argue that the District Court erred when relying on the Brzak case, because it does not mention a breach of section 29 of the CPIUN. The Plaintiffs also contend that granting immunity in this case violates the constitutional right of a U.S. citizen plaintiff to have access to the courts. The plaintiff’s brief states that “granting immunity in this case impermissibly infringes on the right [of the plaintiff], which includes the right to bring a well-pleaded civil lawsuit for recognizing causes of action”.

One important development is that six amicus briefs were filed in support of the plaintiffs appeal, with 54 signatures in total.   These briefs represent a range of different interests and flag a diverse set of issues for the court.    Here are links and summaries of the main arguments:

  • ConLawScholarsAmicus focuses on the constitutional right held by the plaintiff to gain access to the courts.
  • EuroLaw Amicus Brief[3] brief focuses on when UN immunity should be limited, and discusses the reasonable alternative means test. It also highlights cases that have drawn a distinction between acts that are essential to the IO and those that are supplementary. Finally, it refers to due process requirements and highlights cases challenging UN sanctions like Kadi.
  • Haitian-AmericanAmicus: This brief was filed by members and family members of the cholera affected population. This brief presents a three-tiered argument for why the district court erred in upholding the UN’s immunity. First, the harm from the cholera epidemic is ongoing and worsening; Second, the UN is not entitled to immunity when it breaches its obligations to provide remedies; Third, the UN should be required to abide by the same Rule-of-law Principles that is espouses as central to its mission in Haiti.
  • HumanRightsGroupsAmicus: This brief focuses on the idea that the UN is bound by substantive international law, and obligated to give a remedy. It argues that the United Nations cannot seek to avoid the substantive obligations of international law which reject the possibility of the broad immunity claimed by the United Nations. Moreover, it suggests that there is a duty to provide a remedy when the UN caused the “arbitrary deprivation of life.”
  • IntlLawScholars Amicus: This brief focuses on the UN Charter and the SOFA between Haiti and the UN, and argues that the relationship between Articles 105 of the Charter and Articles 2 and 29 of the CPIUN is such that given the private nature of the injury, a remedy is required. This brief also cites to Beer and Regan for the idea that lack of effective alternative for private claims is grounds to waive immunity, and notes in Brzak alternative process was available.
  • UNOfficialsAmicus: This is a brief written by six former UN officials and has three main arguments to it: (1) Immunity was never meant to provide a mechanism for the UN to act with impunity, (2) Allowing the claims to go forward will enhance the UN’s legitimacy and its ability to fulfill its mission, (3) Allowing the claims to go forward will not open the flood gates because this is an unprecedented situation.

Moving forward, the defense has 14 days to respond to propose a briefing schedule. As a non-party, it is not clear whether the US will agree to that timeframe however.

 

Thanks to my Research Assistant Dan Hewitt for his help in reviewing the filings.

The ILC takes up Jus Cogens

by Kristen Boon

On May 27, 2015 Mr. Dire Tladi of South Africa was appointed Special Rapporteur for a new topic on the International Law Commission’s agenda:  jus cogens.  The progressive development and codification of jus cogens principles marks a significant step forward.  For many years it was considered, as Ian Brownlie once quipped, “like the car that never left the garage.”  The ILC’s syllabus, available here, suggests a bright new future lies ahead.

The scope of the Commission’s inquiry is likely to focus on the following elements:  the nature of jus cogens; requirements for the identification of a norm as jus cogens; an illustrative list of norms which have achieved the status of jus cogens; consequences or effects of jus cogens.

If you are interested in updates on the ILC’s work such as this one, I encourage you to sign up for Arnold Pronto’s new twitter feed. Arnold is a Senior Legal Officer in the Codification Division in the Office of Legal Affairs, and is the new UN Representative for an ILA group that will be preparing a report on international law activities at the UN twice a year.   Arnold will be tweeting out international law related events as they happen here at the UN. If you’re interested, he is at @arnoldpronto