Author Archive for
Kristen Boon

Disaster Displacement: Gaps in International Norms

by Kristen Boon

There is an interesting interview with Professor Walter Kahlin, former Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, on disaster displacement over at the IPI’s Global Observatory.

He discusses why the current international law regime on refugees is incomplete when it comes to displacement.  He explains:

Back in 2010, Haiti was hit by one of the most devastating earthquakes, and hundreds of thousands who were displaced within the country immediately found refuge in makeshift camps. But many showed up already during the very first night—the first few days after the earthquake—at the border of the neighboring Dominican Republic. The question for the president was: should he open the borders or should he keep them closed? And he couldn’t get any guidance from any kind of international law because these people, even though they didn’t have any opportunity at that time for their wounded family members to access medical assistance (this came only later), they were not protected as refugees or in any other kind of quality by international law. A gap.

The IMO concurs, stating:  “climate refugees fall through the cracks of asylum law.”   This is clearly an area ripe for reflection.    Do climate refugees have a right of access to neighboring countries?   What should the definition of “climate refugee” be?    More importantly, given the problem of differentiating between climate disasters and natural disasters, it makes it very difficult to determine the different obligations of the international community.    There appears to be little appetite to revise the 1951 convention on the status of refugees to include climate refugees, which would afford them protections akin to political refugees.  Interestingly, the UNHCR has spoken out against this approach, claiming that while environmental degradation can contribute to forced, cross-border migration, this should not translate into more grounds for granting refugee status.

There are some interesting initiatives afoot to fill the gap.   The Nansen initiative, a self-described  “bottom-up” initiative is starting to canvas the norms that might apply.   Information is available here.   The ILC is studying the related question of protection of persons in the event of natural disasters here.   Academics have entered the debate.  Professor Katrina Wyman at NYU has canvassed the current models and proposed a “rights model” in an article here, which would boost the levels of migrants from developing to developed countries to begin with.  She writes:

How might immigration policy be changed to increase resilience in developing countries vulnerable to the effects of climate change? One option would be to make it easier for citizens of developing countries that are vulnerable to climate change to move to destination countries temporarily or permanently, for example, by boosting allowable immigration levels from these countries.

Do our readers have any other suggestions on important sources or approaches to this important new international issue?

Russian Roulette: Firing Blanks in the Sanctions Against Russia?

by Kristen Boon

As widely reported in the press last week, President Obama announced sanctions against Russian and Ukrainian officials.   On Thursday, March 20, the “blacklist” was expanded to 2 banks and 20 officials, as detailed in this press release from the US Treasury.     Separately, the EU imposed sanctions on 21 individuals, including Russian military commanders.

The U.S. goals, President Obama said, are “to isolate Russia for its actions, and to reassure our allies and partners” of American support.    Under the U.S. Treasury’s ruling, assets belonging to designated individuals within U.S. jurisdiction will be frozen, and business between U.S. entities and the Russian parties in question will be halted.     In retaliation, Russia imposed sanctions against nine officials, including Republican Senator John McCain and Speaker of the House John Boehner.

According to President Obama, the goal of US sanctions is:  “[To] send a strong message to the Russian government that there are consequences for their actions that violate the sovereignty and territorial integrity of Ukraine, including their actions supporting the illegal referendum for Crimean separation .”

I have been studying multilateral sanctions for much of the past year, and the theory behind targeted sanctions in that context is that in order to change behavior, there must be an incentive to comply.  As the sanctions expert Mikael Eriksson writes, “The typical goal of such measures is to influence decision-makers by engaging or isolating them through targeted financial restrictions, and travel bans and other measures . . . targeting involves different tactics, but in principal, pressure is exercised by a combination of punitive measures, incentives and conditionality to entice or coerce designated targets to change their behavior.”

Moreover, a 2007 report of the Security Council’s Working Group on Sanctions states: “Experience has shown that sanctions work best as a means of persuasion, not punishment: sanctions should include carrots along with sticks—not only threats, but inducements to elicit compliance. The target must understand what actions it is expected to take. And partial or full compliance should be met by reciprocal steps from the Council, such as easing or lifting sanctions as appropriate.”  (UN Security Council, Letter Dated 12 December 2007 from the Permanent Representative of Greece to the United Nations Addressed to the President of the Security Council (December 13, 2007) UN Doc. S/2007/734, p. 3)

The only available sanctions against Russia are so called “unilateral” sanctions, by states like the US and organizations like the EU.  Although the United Nations has a well-developed practice of targeting, and in fact has exclusively applied targeted sanctions since 1994, Russia’s unsurprising veto of a draft resolution on the Ukraine on Saturday March 15 foreclosed the opportunity to apply multilateral sanctions against the Ukraine or Russia.   There is consequently no way to apply global sanctions against Russia.  Nonetheless, there may be some useful lessons.

So far, the US sanctions are clearly designed to act as a “stick:” to indicate further consequences will follow any new incursions into the Ukraine, and to signal displeasure with supporting the referendum for Crimean separation.  But do the US or the EU believe at this point that Russia will pull out of Crimea? It seems unlikely and if that is true, these are punitive measures to the extent they are focussed on the referendum and attempted annexation.

The US has an even bigger stick in the wings:  more sanctions against sectors of the Russian economy.    President Obama signed an executive order described here that would allow the administration to apply future sanctions against industries including financial services, metals and mining, energy, defense and related material, and engineering.    These could have a huge impact on the Russian economy, as the New York Times explains, and would likely affect the economy of other countries in Europe as well.

I have seen nothing so far to indicate whether an incentives based strategy is at play here.  I suspect this is partly a question of timing -  it is too soon to entice compliance.  After all, their effects are only starting to be felt.  But for unilateral sanctions by the US and EU sanctions to be effective, it may be necessary to consider carrots.   One of the most tried and tested incentives is to offer the lifting of sanctions.  When a domestic polity backs a particular approach, this is easiest.  Sometimes other techniques are employed as well, whether to include people at the bargaining table who would otherwise be barred, or to offer economic incentives.  Neither of these techniques seems likely in the present situation because the individuals targeted are not outsiders, but part of Putin’s cohort.

As a result, these sanctions may be around for some time.  Presently, it seems unlikely that the Russian ‘targets’ will comply of their own accord.  Moreover, the surge in Putin’s popularity after the attempt to annex Crimea, suggests that there is little domestic opposition to recent developments.

Developments in the Haiti Cholera Case: US supports absolute immunity of UN and two new suits filed

by Kristen Boon

There have been some interesting developments this past week regarding the legal proceedings against the UN following the outbreak of cholera in Haiti in 2010.  For background on this tragic and politically sensitive case see my prior posts here, here, here and here.

Readers will recall that efforts to obtain compensation for the victims moved to US courts in October 2013, when the Institute for Justice & Democracy in Haiti initiated a law suit, Georges et al v. UN in the Southern District of New York.

On Friday, March 7, 2014, the United States filed an 18 page “statement of interest” in the case (at the request of the Court) in support of the UN’s absolute immunity from process.  The full document is available here.   It argues that all defendants, including the UN and MINUSTAH, are immune from suit, absent an express waiver.   Citing three cases on treaty interpretation, the statement of interest also asserts that if there is any alternative reading of the General Convention’s text, the Court should defer to the Executive Branch’s interpretation.

Another important development is that within the last week, two new suits have been filed against the UN, which seem to borrow from and overlap with the class of plaintiffs proposed in Georges et al. v. United Nations.    On March 6, Petit Homme Jean-Robert  et. al. v UN was filed by Emmanual Coffy, a Haitian American lawyer.

The case filed on Tuesday, Laventure v. UN, is another class action, and the press release states the attorneys involved have had experience in national tobacco lawsuits, the national BP gulf oil spill, and recent Goldman Sachs aluminum antitrust litigation.  The latter suit is of particular interest because the central argument is that the UN expressly waived its sovereign immunity in its 2004 agreement Status of Forces Agreement (SOFA) in Haiti.  The basis of this argument is para. 54 of the SOFA which states:  “Third-Party claims for…. Injury, illness or death arising from or directly attributed to (Stablization Agreement) shall be settled by the United Nations …. And the United Nations shall pay compensation.”

What should we make of all these developments?

There is no question that the UN’s immunity is extremely broad.   Privileges and Immunities are meant to protect the UN’s independent functioning and shield it from vexatious litigation.  Nonetheless, the position that the UN’s immunity is absolute deserves careful examination.

Section 2 of the General Convention protects the UN from any form of Process, while Section 29 of the Convention on Privileges and Immunities of the UN requires the United Nations to “make provisions for appropriate modes of settlement of […] disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.”   This has not happened in this case.  I argued in an earlier post that Article 29 mitigates the absolute de facto immunity of the United Nations, and August Reinisch has argued that the rationale of Section 29 is to ensure due process of law and to protect fundamental human rights.

Courts have been willing to limit the immunities of IOs when no dispute resolution mechanism has been provided.  Following the 1997 cases of Waite and Kennedy, an employment dispute involving the European Space Agency, European courts have often linked immunities to “reasonable alternative means.”  To date, US courts have not followed this trend.  In a 2010 employment case in the Southern District of New York, Brzak v. UN, the Court found that the UN possessed absolute immunity.  Nonetheless, it is possible that the facts of the Haiti cases are such that the Courts will revisit this approach.

Another noteworthy contextual factor is that the US Government is acting defensively in supporting the UN’s absolute immunity.   If a state disregards an international organization’s immunity, it might give rise to allegations of international responsibility on the part of the forum state, which wrongly asserts jurisdiction over an international organization.  (See August Reinisch, International Organizations Before National Courts, 2000).   Moreover, the US is home to a number of important organizations, and the failure to uphold immunity would have consequences far beyond this case.  Nonetheless, the US Government’s position is to be contrasted with the efforts of individual congress members who have urged the UN to settle with victims.

If the UN has in fact waived its immunity, as the lawyers in the new case Laventure are attempting to prove, it provides a strong basis for these cases to proceed.  But I don’t read Art. 54 of the SOFA as a waiver of immunity.   It certainly does not expressly waive immunity.  Instead, this provision, like GA A/RES/52/247, the other instrument on which they rely, addresses limitations on UN liability, which is quite a different beast.

It has become apparent that this case is not going away.   It is very unlikely a US court will read down the UN’s immunity and permit the cases to proceed, and yet, there are different ways to dismiss a case, particularly given the facts here. Its also clear, however, that the victims have not yet had a satisfactory response from the UN, and that ultimately resolution must come from the UN itself.

Assessing the UN’s new “Rights Up Front” Action Plan

by Kristen Boon

In December 2013, the UN Secretary General launched a new Human Rights initiative called “Rights Up Front”.    Primarily a coordination tool for the UN Secretariat, the plan outlines six actions that can help the UN system meet its responsibilities regarding human rights:

Action 1: Integrating human rights into the lifeblood of staff, so that they understand what the UN’s mandates and commitments to human rights mean for their Department, Agency, Fund or Program and for them personally.

Action 2: Providing Member States with candid information with respect to peoples at risk of, or subject to, serious violations of international human rights or humanitarian law.

Action 3: Ensuring coherent strategies of action on the ground and leveraging the UN System’s capacities in a concerted manner.

Action 4: Adopting at Headquarters a “One-UN approach” to facilitate early coordinated action.

Action 5: Achieving, through better analysis, greater impact in the UN’s human rights protection work.

Action 6: Supporting all these activities through an improved system of information management on serious violations of human rights and humanitarian law.

The catalyst of Rights Up Front was the Petrie Report of 2012, an independent review panel report commissioned by the Secretary General and written by Charles Petrie, which assessed the UN’s response to the final months of the 2009 war in Sri Lanka.   The report was extraordinarily critical of the UN, characterizing its actions as a “systematic failure.”  It recommended “a comprehensive review of action by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates.”

To his credit, the Secretary General Ban Ki Moon took this charge seriously.    The Rights up Front plan represents the end product of internal assessment and reflection.   While it is too early to give a definitive assessment of the plan’s potential, some features are worthy of comment now.   The plan is noteworthy in identifying the protection of human rights as a core purpose of the United Nations, consistent with the UN Charter.  It also creates a human rights plan for the UN Secretariat in situations where there is no peacekeeping mission.   This is an important development: the plan recognizes the failure of early-warning systems that contributed to the Rwandan genocide and the Srebenica massacre. Moreover, Deputy Secretary General Jan Eliasson, in presenting the report, indicated that systematic human rights violations have often been a precursor to mass atrocities, and that the challenges facing the UN in Sri Lanka were not new.

Although the action plan refers to UN responsibilities (a term with legal connotations), the main responsibility it addresses lies with the Secretariat.    Clearly the plan would have been stronger had it staked out a legal responsibility for the UN.   When the Secretary General presented the plan he emphasized the UN’s political and moral obligations, but not its legal responsibilities.     Compare, for example, the UN’s position on humanitarian law, and its guidelines for UN troops, which state that they must respect and observe the rules of international humanitarian law or face prosecution.

In addition, while emphasizing the Secretariat’s coordinating role, conspicuously absent from the Plan are references to the responsibility of important organs like the Security Council and the General Assembly.    Because the plan is so heavily focused on the Secretariat, Rights Up Front appears to have little to no role in situations where the Security Council or the General Assembly are engaged.  Take the current humanitarian crisis in Syria.   Here, the Secretariat’s role is limited because the situation has been escalated to the Security Council, the organ with primary responsibility for threats to international peace and security.   Due to the Council’s involvement, the Secretariat’s role limited.  The potential impact of the Rights up Front plan does not, therefore, overcome cases of Council deadlock despite the evidence of massive human rights abuses.

Another interesting silence in the Rights Up Front plan is its relationship with the Responsibility to Protect (R2P).    There are clear parallels between the two doctrines with regards to the duty to prevent human rights abuses.   Pillar 2 of R2P, for example, states that the international community has a duty to assist states in meeting these obligations.   Rights up Front could be a way to implement Pillar 2.   Nonetheless, there is no explicit acknowledgement of this overlap, or explanation of how these doctrines work together.

In the final analysis this Plan represents an important step forward for human rights at the UN.  If Rights Up Front is systematically integrated into the Secretariat’s work, and becomes a basis for auditing and review, it may succeed in making human rights a much more central aspect of the UN’s work. Nonetheless, its limited scope, due to its focus on the Secretariat and its avoidance of legal obligations, mean that whether it is capable of delivering real world impact remains to be seen.

Reflections on UN Law Making

by Kristen Boon

Last week at the American Association of Law Schools (AALS) annual conference I had the honor of speaking on a panel on UN Law Making, with Mahnoush Arsanjani, formerly of the UN Secretariat, Kimberly Prost, Ombudsperson for the Al Qaida sanctions regime, and Pablo Castillo-Diaz, of UN Women.  A summary of the matters discussed by the panel is available here.

Our wonderful moderator Prof. Stephanie Farrior asked us to comment on perceptions and misperceptions about how international law is made.  Both the questions and the answers struck me as useful to those of us returning to the classroom in January.

Here are some of Stephanie’s questions:

  • What misconceptions regarding law-making at the UN might students have?
  • What players have a particularly notable influence on law-making?
  • What developments, challenges, or other aspects of the work of the UN do you think are especially important for law professors to be aware of?
  • What are the on the ground realities of law-making by the UN that law professors should know about?

As a general matter, I think UN outsiders (law professors and students included) are at a disadvantage when trying to understand UN law making.  One of the most common forms of UN law making comes through Security Council Chapter VII, resolutions that are binding on all member states under the UN Charter.  Two of the high water marks of Security Council law making power were the creation of ad hoc tribunals (ICTR and ICTY) under UN Charter Articles 41, and the passage of resolution 1373.

Security Council Resolutions, however, are usually crafted during informal negotiations in a heavily political context.  There is no “legislative history” as a result of this system.   The transparency critique of this process is longstanding.

How can you find out what the real story is if you’re not a UN insider?  Three sources of information that I consult regularly are:

  • Security Council Report, an NGO which seeks to increase Security Council transparency.  It  is largely funded by non-Security Council members.  For example, see this interesting recent report on consensus in the Security Council,  that assesses voting patterns, decision-making rules and the role of consensus in the Security Council.
  •  For historical debates, I look at the Security Council repertoire, although there is generally a 2-3 year delay.
  • Finally, for current debates both the UN News website and the UN’s new document system portal has improved transparency considerably, making it much easier to obtain official statements than ever before.  As a general matter, the UN has made it much easier to watch open sessions of the Security Council, and now regularly webcasts these sessions here.

There is a common misperception that a Security Council Resolution can be read like a statute or a treaty.  I tell my students a much different approach is required.  Here are a few of the differences:

  • Often resolutions are not drafted by lawyers, so the language is not chosen with the same specificity as that we would see in legislation.
  • Sometimes what is not said in a resolution is more important than what is said, particularly if sensitive language has been deleted.  The refusal of some countries to permit language on the Responsibility to Protect into resolutions in Syria is an obvious example of this reality.
  • There can be profound differences of opinion amongst Member States about the legal content of resolutions.
  • Vague language is often an end result of the process, reflecting compromise somewhere along the way.
  • Resolutions do not typically spell out the consequences of non-compliance.
  • There is a code to the language of UN Security Council resolutions.  For example, it is much more significant if the Council demands a particular action than if it urges it.  Different levels of language in resolutions contain important legal signals.

How are the resolutions interpreted?   One of the challenges to UN lawmaking that became very apparent to me during my recent sabbatical study of UN sanctions is that the UN system doesn’t offer many ways to resolve ambiguities in interpretation and implementation.  UN sanctions on North Korea, for example, ban luxury goods, but the resolution did not contain a definition of what a luxury good is.  Some clarification was provided in a later Security Council resolution issues in March of 2013, some six years later, see this resolution, but this followed a long period of debate about how to interpret and apply this term.  Essentially, the definition of what constitutes a luxury good was left to the discretion of Member States.

The 1718 DPRK Sanctions Committee eventually issued an Implementation Assistance Notice dated 13 September 2013, to clarify and has identified the following items as constituting luxury goods: jewelry with pearls, gems, precious and semi-precious stones (including diamonds, sapphires, rubies, and emeralds), jewelry of precious metal or of metal clad with precious metal, yachts, luxury automobiles (and motor vehicles): automobiles and other motor vehicles to transport people (other than public transport), including station wagons, and racing cars.

Who can influence Security Council resolutions?

  • Small states can have a big impact on UN law making if their representatives are strategic about using their time as non-permanent members of the Security Council, or during open debates, to push forward a certain issue – the inclusion of language on women, children and armed conflict, for example, were supported by smaller non-permanent member states.
  • Emerging powers are also becoming important contributors to the conversation  – Brazil’s counterproposal on the Responsibility to Protect (entitled Responsibility While Protecting) garnered a lot of attention last year.
  • Academics have played a very important role in defining the Council’s law making powers.  In the sanctions field for example, academics have been supported by some “best practices” states (including Canada, Switzerland and the Nordic Countries), receiving funding to do empirical work, participating in processes like Bonn-Berlin and Interlaken, and even helping to develop a new sanctions app.

Do you have any observations on the questions posed above?   Please chime in via the comments box if you do.

Despite Deal, Iran Still Needs Pressure (and UN Sanctions)

by Kristen Boon

Most reporting on the nuclear agreement with Iran has tended to generalize about the types of sanctions and the impact of the deal on these various measures, so it would be easy to assume that United Nations sanctions are being eased or lifted, but this is not the case. The deal primarily eases unilateral sanctions by the United States and the European Union against Iran, leading to what is estimated to be around $7 billion in sanctions relief.

UN sanctions against Iran—found in resolutions 1737, 1747, 1803 and 1929—will only be assessed at the six-month mark, with an eventual goal (the so-called “comprehensive solution”) of lifting them within a year. In the near term, the only commitment with regard to UN sanctions is that no new nuclear-related UN Security Council sanctions be imposed.

This raises an important issue: how should UN sanctions be approached in the meantime?

Under Article 25 of the UN Charter, member states remain obligated to give effect to Security Council measures. The new deal with Iran has not altered the obligation to implement sanctions.  But on this front, work remains to be done. Gaps in the implementation of UN sanctions against Iran, which have been in place since 2006, are pervasive. Dual-use items, such as goods, software, and technology that may be used for both civilian and military purposes, have been a particular problem. Interpretation of resolution language and implementation of general terms in specific contexts have also led to implementation problems. Finally, because information on sanctions busters can involve classified information, states are very careful about what they share and with whom they share it.

EU officials have made clear that they, too, will continue to strictly implement sanctions not affected by the deal. This strategy was in question due to a series of challenges to UN and EU targeted sanctions. Criteria developed by the European Court of Justice in the Kadi case (regarding sanctions under resolution 1267) now require far greater detail for listings, and indicate that listed individuals and entities must have an opportunity to challenge those listings as a matter of human rights. These ideas are now beginning to  influence the design and expectations for other types of sanctions regimes. (For background on the July 2013 Kadi decision, see my earlier post on Opinio Juris.)

In the past year, and due in large part to the Kadi decision, a growing list of EU sanctions against Iranian entities have been annulled on the basis that there was inadequate detail in the listings and that the lack of evidence affected the right to effective judicial protection. There was also some concern that the advances made by improving due process guarantees would compromise the ability of the EU to maintain sanctions against financial institutions and oil and gas companies. In an important appeal decision three weeks ago, however, the European Court of Justice’s 5th Chamber clarified its requirements, signaling that evidence is required to substantiate listings, resulting in the lifting of sanctions against one company but the upholding of sanctions against another. (See this blog for analysis of the Council of the European Union vs. Fulmen & Fereydoun Mahmoudian and Council of the European Union vs. Manufacturing Support & Procurement Kala Naft cases. )

Most believe that sanctions have had some impact on Iran’s willingness to appear at the negotiating table, but there are some notable dissenters. Hossein Mousavian, a research scholar at Princeton who formerly served as spokesman for Iran’s nuclear negotiators, argued in the Financial Times that “the idea that it is sanctions that have brought Tehran to the table is wrong. The real cause is the desire of new President Hassan Rouhani to reach a rapprochement with the US, the EU, its neighbors and other world powers, alongside the fact that the US red line has changed from ‘no enrichment of uranium’ to ‘no nuclear bomb.’” Dan Joyner at the Arms Control Law blog agrees with this statement, and points out that many of Iran’s negotiating points had actually been included in past agreements.

The real answer about the impact of sanctions—whether multilateral or unilateral—on the Iran deal will continue to be debated, but it is clear that until a comprehensive solution is reached, member states must continue to implement existing UN sanctions. Moreover, many are of the view that these same sanctions are necessary to maintain pressure and signal that a threat to peace and security remains.

As Enrico Carisch, a sanctions expert at Compliance and Capacity International (CCI), notes in an earlier Global Observatory piece, “Whichever sanctions drawdown options are implemented, the surviving sanctions must remain credible. Monitoring of compliance and the pursuit of potential violators requires equal if not more determination than has been the case so far.”

Cross-Posted at the International Peace Institute’s Global Observatory

New Initiatives on Bluefin Tuna Management

by Kristen Boon

The National Marine Fisheries Service (NMFS), the U.S. government agency that regulates offshore fishing, has proposed a new set of regulations to reduce bycatch of Bluefin tuna by economic disincentive. The Washington Post reports that:

“Under the proposal, the NMFS would sharply cut back the number of bluefin tuna that individual fishing vessels are allowed to capture accidentally, setting a quota for each boat and requiring fishermen to include the bluefin they discard at sea under that cap. The NMFS also would change the long-standing formula by which it calculates the number of pounds of bluefin tuna that a long-liner may legally bring to shore for sale.”

This effort is very much in line with an article I’ve just published on incentivizing compliance on the high seas.   The article is available here, and it argues for an incentives based approach to management, using the 1911 Sea Fur Seals treaty as a model.  I argue that the scarcity problem of common resources on the high seas should be addressed by better governance and incentives, not by a property rights approach.

Another noteworthy developments on managing high seas tuna fisheries is this new program for a partnership between the Food and Agriculture Organization and the Global Environmental Facility (GEF), a 183 member organization that has acted as a financial mechanism for a number of international climate conventions, in which the latter has committed a whopping $30 million, and is leveraging an additional $150 million in co-financing.   This project will run from 2013 through 2018, and aims to reduce illegal, unreported and unregulated (IUU) fishing through monitoring and control, to lessen ecological impacts from illegal fishing, and to improve biodiversity.   Árni M. Mathiesen, FAO Assistant Director-General for Fisheries and Aquaculture stated: “Through collective action at all levels and broad cooperation that optimizes the use of scarce resources, this project – and the wider Common Oceans  initiative – will help move the world away from ‘the race to fish’ and towards implementation of an ecosystem approach. This is crucial to ensuring the future well-being and productivity of these vital marine ecosystems. Early successes will create incentives for donors and agencies to further invest in these types of catalytic projects.”

If you have an opinion on the NMFS regulations, the deadline for public comments ends on December 10.

After Saudia Arabia Spurns Seat on the UN Security Council, Jordan Indicates Willingness to Assume Role Instead

by Kristen Boon

On Tuesday, Saudia Arabia made official its rejection of a highly sought after seat on the UN Security Council in a letter to the President of the General Assembly.   The letter confirmed in writing its surprise decision of October 18 (announced less than 24 hours after its election) to forgo a prestigious seat on the Council.  The letter now enables the General Assembly to start the process of filling the seat, which will be vacant come January 2014.

Saudia Arabia’s decision to reject the seat stunned the diplomatic world, and it appeared, even its own diplomats in New York.   Saudia Arabia had been campaigning for the seat for two years, and in a press statement immediately after the election (available on its Mission’s website), the Saudi Ambassador to the UN stated:

“This membership defines the absolute commitment of Saudi Arabia towards peace in the World and security in its land. It is a defining moment in the Kingdom’s history. As one of the first founding members of the United Nations, our election is much to rejoice over. We welcome the positive shift as well as challenges of being part of the Security Council body.”

The reasons for the sudden about-face appear two fold.  First, Al Jazeera reported that “The Foreign Ministry accused the Security Council of failing to end the Syrian and Israeli-Palestinian conflicts and to convene a conference on creating a Mideast zone free of weapons of mass destruction.”   Second, Saudi Arabia referred to the need for Security Council reform, stating “the manner, the mechanisms of action and double standards” prevented the Council from performing its responsibilities.”

While it is tempting to read Saudia Arabia’s rejection of the seat as a new verse in the longstanding refrain for Security Council reform, it is hard to believe this was really the motivating factor.  First, the Kingdom’s decision appears to have been taken by the King and Foreign Ministry on the spur of the moment, and was not a calculated or longstanding strategy.  Second, with the current situation in Syria, the seat gives any country in the region a leadership role, and regardless of the Council’s structure, it is curious that a powerful and influential country like Saudia Arabia with a clear interest in the conflict would decline this opportunity.  Indeed, if reform were a top priority, it would be easier to make the case as a Council member.   Finally, earlier this week, Saudi Arabia was elected to the UN Human Rights Council, suggesting it is willing to assume obligations in other spheres, but perhaps not on sensitive matters of peace and security.

Although an elected member refusing to take up its seat is unprecedented, there have been situations in the past where a seat has been vacant for short periods.  This excellent article by Security Council Report, provides a comprehensive overview of how the Security Council has handled these situations, and what potential political and legal issues follow a vacant seat.  Interestingly, foremost among the legal issues is the possibility that decisions taken by a Security Council short a member (14 instead of 15) would be open to challenge.

Jordan appears willing and able to assume the seat, and it is expected to officially announce its interest shortly.  It is expected that only a replacement from the region will step forward, because the seat vacated by Saudia Arabia is, as SCR notes in the report above,  “an Arab seat that “swings” between the Middle East countries in the Asia-Pacific Group and the countries of North Africa every two years.”  In addition, the election of non-permanent members of the Council are elected pursuant to Article 23 of the UN Charter,  which states that equitable geographical distribution is important in allocating seats.

While Jordan has not, to my knowledge, announced an election platform to date, it would be led by a formidable international lawyer, Jordan’s Permanent Representative, His Royal Highness Prince Zeid Ra’ad Zeid Al-Hussein, (who has been considered a potential contender for for the position of Secretary General).  Prince Zeid is well respected in international law circles due to his role in the ICC and his 2005 report on Sexual Exploitation and UN Peacekeepers.  The successor to Saudia Arabia’s seat would, according to the current calendar, be required to assume the role of presidency of the Council for the month of January, a momentous undertaking that requires great preparation.   Even if Jordan emerges as the sole candidate (and it is too soon to know whether this will be the case) an election would be called by the General Assembly under the normal rules, requiring a candidate to obtain a 2/3 majority.

ASIL Mid-Year Meeting in New York

by Kristen Boon

International lawyers here in New York are gearing up for ASIL’s mid-year Meeting.  The program is available here, which kicks off tonight with a reception and talk at the UN.

I’m delighted to have co-chaired the Research Forum with Tim Meyer from Georgia this year.   Tim and I assembled a wonderful Research Forum Committee this year, who conducted a double-blind selection of papers on the basis of abstracts submitted in June.  The committee is composed of:

Karima Bennoune, University of California- Davis School of Law

Donald Earl Childress III, Pepperdine University School of Law

Eyal Benvenisti, Tel Aviv University

Duncan Hollis, Temple University Beasley School of Law

Katerina Linos, University of California-Berkeley School of Law

Research Committee members will be serving as panel chairs at the conference.  The papers to be discussed are available in a Dropbox folder on the ASIL Midyear Meeting page.

You’ll see cutting edge scholarship on topics ranging from international investment law to the future of international criminal tribunals.   The purpose of the forum is to provide scholars with feedback on works-in-progress, which is an important complement to the ASIL Annual Meeting, where panel presentations on specific topics are the norm.

The meeting comes after an exciting week at the UN, with the Sixth Committee considering the International Law Commission’s latest report.   If you’re interested in what has been happening at the UN, the work program is available here, and the formal sessions are available for viewing (webcast) on the UN Website making it easy to follow the discussions from outside of the building.

Haiti Cholera Battle Against UN Moves to US Court

by Kristen Boon

After receiving a staunch “no” from the UN earlier this year, lawyers for Haiti Cholera victims filed a class action lawsuit in the Southern District of New York today.  The complaint is available here.   The complaint seeks certification of a class that is composed of cholera victims who are Haitian and US citizens. The basis of the class action is that the plaintiffs have a right to a remedy under Haitian tort law, and includes a request for relief on the basis of wrongful death, and infliction of emotional harm.  Moreover, in reference to international law, the plaintiffs assert:

Defendants UN and MINUSTAH have well-established legal obligations to provide redress to victims of harm caused by acts or omissions attributable to the Defendants, which includes the members of the proposed Class. The Convention on the Privileges and Immunities of the UN of 1946 (“CPIUN”) expressly requires Defendant UN to provide appropriate modes of settlement for third-party private law claims. The Status of Forces Agreement (“SOFA”) signed between Defendant UN and the Government of Haiti expressly requires the UN to establish a standing claims.

To date, the UN has denied legal responsibility on the basis of Article 29 of the Convention on Privileges and Immunities stating that the claim is not receivable.  Presumably, the justification is that this is a public rather than a private law claim, although the UN’s response did not spell this out, as I discussed in an earlier blog here.  What the UN has focussed on instead is a fund for improved sanitation and water infrastructure.

Pressure on the UN has mounted.  On Tuesday, the UN High Commission for Human Rights, Navi Pillay, urged the UN to compensate the victims, although she did not state where that money should come from. An important report produced this summer by students and professors at the Yale Law School Transnational Clinic has also called for compensation.   In addition, the UN Independent Panel of Experts convened in 2011 to investigate the source of cholera in Haiti published a new academic article this summer that concluded that MINUSTAH was the most likely source of cholera in Haiti.  The precise language they use is:

“The preponderance of the evidence and the weight of the circumstantial evidence does lead to the conclusion that personnel associated with the Mirebalais MINUSTAH facility were the most likely source of introduction of cholera into Haiti.”

Even Haiti, conspicuously silent about the potential responsibility of the UN for this outbreak, changed its tune at the recent General Assembly meetings and where its Prime Minister argued that the UN has moral responsibility for the outbreak.

The complaint deals only briefly with the question of privileges and immunities, which is likely to be the UN’s first defense.  As I noted in this blog, this will be an obstacle the plaintiffs are unlikely to surmount.  Nonetheless, I suspect the lawyers are seeking a different kind of victory here.  They are exposing the limits of the UN’s internal justice system, forcing the public to focus on the disastrous health consequences of the cholera epidemic in Haiti, and highlighting the accountability gap that has emerged in light of the refusal to establish a claims commission.

Use the Sanctions Power Against Bashir

by Kristen Boon

Recent commentary on Bashir’s request for a US visa to attend the 68th General Assembly has focused on US obligations to grant Bashir a visa under Section 11 of the UN – US Headquarters Agreement. See Julian’s post here. Pursuant to this agreement, there is little doubt that the US must permit his transit to the UN despite the fact that there are two outstanding ICC arrest warrant against him. Because the US is not a party to the ICC it has no obligations to cooperate with the ICC, although the US has been reminded, most recently by the Pre-Trial Chamber of the ICC that when the situation in Darfur was referred to the Court by the SC with the US’s support, Resolution 1593 (2005) “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the Court.”    Thus while the US should cooperate, is not legally obliged to.  Moreover, it is common knowledge that many other countries on the transit route could intervene, and transfer him to the ICC in The Hague to stand trial.  And they may do so.

A mechanism that could be quickly employed to prohibit Bashir’s travel, however, is to place him on the “blacklist” under the existing sanctions regime against Sudan (Resolution 1591).  Pursuant to Para. 3(d), “all States shall take the necessary measures to prevent entry into or transit through their territories.”  The Committee’s guidelines are available here, and indicate the criteria for adding names to the blacklist.  At present, there are only four individuals on the list.  Indeed, it is not clear why the Sanctions Committee has not added Bashir, although one suspects the reason must be political.  Other individuals have been listed for their direct responsibility for violations of international humanitarian, human rights law and other atrocities. Bashir clearly meets these criteria as well.

If Bashir were added to the blacklist, all countries would be under an obligation to prevent his travel.  Moreover, because the Security Council would be acting under Chapter VII, this obligation would trump other treaties, including the UN-US Headquarters Agreement.  It was precisely this dynamic that led to litigation in European Courts when sanctions were implemented at the expense of human rights obligations.  While the Kadi and Nada decisions indicate that there needs to be a means to review listings by a judicial like process (at least for enforceability in the European context) one would be hard pressed to believe Bashir would raise such an argument.

The jurisdictional thresholds for the ICC and the Sanctions Committees are different.  The ICC proceeds against individuals who are alleged to have committed the gravest international crimes.  In contrast, under Article 41 of the UN Charter, individuals are added to blacklists because they violate the terms of existing sanctions and/or contribute to the threat to peace and security.  Automatic cross listing between the ICC and sanctions committees is not the right way to proceed because it may interfere with the presumption of innocence, but where a head of state has openly flouted a ICC warrant, and where he independently meets the criteria for inclusion on the travel ban and asset freeze, what better opportunity for the Security Council and the ICC to act together?  It would demonstrate coherent policy on peace and security issues, and joint condemnation of international crimes.

This is an important moment for the UN Security Council to back the ICC.  The Sudan Sanctions Committee should expeditiously add Bashir to the sanctions list which would place all states under a clear obligation to prevent his travel around the globe.  In addition to the chair, currently Her Excellency Mrs. Maria Cristina Perceval (Argentina), and two vice chairs, Australia and Azerbaijan, all Security Council members are on the sanctions committees.  One hopes that Russia and China will not stand in the way.

Supreme Court Decision Rendered in Dutchbat Case: the Netherlands Responsible

by Kristen Boon

In a hotly anticipated decision, the Supreme Court of the Netherlands affirmed today that the Dutch State is responsible for the deaths of three men at Srebrenica. As the press release recounts, “The men had sought refuge in the compound of the Dutch battalion (Dutchbat). Dutchbat decided not to evacuate them along with the battalion and instead sent them away from the compound on 13 July 1995.” Outside the compound they were murdered by the Bosnian-Serb army or related paramilitary groups.

The decision (in english) is available here, and cites both the 2002 Articles on State Responsibility and the 2011 Articles on the Responsibility of International Organizations, and provides a detailed analysis of attribution doctrines in peacekeeping situations.

On the substance, the decision upholds the Court of Appeal’s finding that the Dutch state exercised “effective control” over Dutchbat pursuant to Art. 8 of the Articles on State Responsibility, which it defines as “factual control over specific conduct.”  (Para. 3.11.3)  Although the decision cites the commentary to Articles on the Responsibility of IOs for this test, the wording originates from the monumental Nicaragua decision.  Moreover, confirming that Art. 7 of the Articles on the Responsibility of IOs applies (as opposed to Art. 6), the Court found that this was a situation where a State, here the Netherlands, placed troops at the disposal of a UN peace mission, and while command and control were transferred to the UN, disciplinary powers and criminal jurisdiction reman vested in the seconding State. (Para. 3.10.2). The court also finds that international law permits the possibility of dual attribution, potentially leading to shared responsibility.  As a result, “the Court of Appeal was able to leave open whether the UN had effective control over Dutchbat’s conduct in the early evening of 13 July 1995.”  Interestingly, this aspect of the decision does not follow a May 2013 advisory opinion by the Procurator General, analyzed by Andre Nollkaemper here.

On the question of wrongfulness, which is determined by the law of Bosnia and Herzegovina, the Court upheld the Court of Appeals reasoning, adding that if it accepted the State’s argument for judicial restraint, there would be virtually no scope for the courts to assess the conduct of a troop contingent in the context of a peace mission.

I am sure I will have more to add as I parse this rich decision, but for now, a good day for international law in domestic courts.