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Kristen Boon

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.

New Responsibility to Protect (R2P) Report Out

by Kristen Boon

The United Nations Secretary General’s fifth Report on the Responsibility to Protect (R2P) was released last week.  This Report is titled “State Responsibility and Prevention” and focuses generally on governance mechanisms and early warning.  It also mentions the situation in Syria, stating that “[r]ecent events, including in the Syrian Arab Republic, underline the vital importance of early action to prevent atrocity crimes and the terrible consequences when prevention fails.”

On the whole, the Report is consistent with prior work, but doesn’t contain much that is new.    The Report focuses in large part on governance, and includes the following points:

  • There is an overlap between risk factors related to armed conflict and atrocity crimes
  • “Genocides [The Holocaust and in Rwanda] started with hate speech, discrimination and marginalization.”
  • Constitutions are mechanisms for creating societies based on non-discrimination
  • Transitional justice mechanisms and security sector reform are important

The Report ends with a call to all countries to:

“ (a) Appoint a senior-level focal point with atrocity prevention responsibilities and adequate resources or establish other national mechanisms to implement this mandate; (b) Conduct a national assessment of risk and resilience, using the analysis framework on the prevention of genocide developed by my Special Adviser, as appropriate, the risk factors outlined in the present report and tools developed by civil society. The review should be system-wide and should include the identification of vulnerable populations and an assessment of existing structures for resilience. Civil society should be included in the review process; (c) Sign, ratify and implement relevant international legal instruments;  (d) Engage with and support other Member States and regional or subregional arrangements to share experiences and enhance cooperation to promote the effective use of resources; (e) Participate in peer review processes, including the universal periodic review of the Human Rights Council, as well as regional peer review processes and other options for monitoring the effectiveness of measures taken; (f) Identify and form partnerships with other Member States, regional and subregional arrangements or civil society for technical assistance and capacity- building purposes, exchange of lessons learned and mobilization of resources; (g) Participate in international, regional and national discussions on the further advancement of the responsibility to protect and its implementation.”

What is perhaps more interesting is what the Report does not say:

  • it does not mention Libya, which continues to be the real hot button precedent on R2P
  • it does not mention military intervention, or the role of the Security Council
  • it does not mention extraterritorial obligations of states
  • it does not mention the ICC
  • it does not mention new technology

On the latter two points, see this July 2013 Report on R2P by Madeleine Albright and Richard Williamson.

The Secretary General has recently appointed a new Special Representative on the Responsibility to Protect – Professor Jennifer Welsh of Canada –  who has written widely on R2P and is currently a Professor at Oxford University.    Hopefully, her appointment will bring new momentum to the campaign.

Many will no doubt be disappointed with the Report.  With the ongoing situation in Syria, and renewed instability in Egypt, this would have been an opportune moment for the UN to move the debate forward on R2P, an opportunity it did not seize in this latest contribution.

The ECJ’s New Appeal Judgment on Kadi

by Kristen Boon

Last week, the ECJ handed down its judgment on the Yassin Abdullah Kadi appeal, marking the end of a decade long legal battle involving the Security Council’s consolidated anti-terrorism lists, and their implementation in the EU.

The decision is available here.   As I noted in a post last fall, Kadi was delisted by the UN Ombudsperson in October of 2012, and so this judgment does not affect his status.

Instead, this appeal against the ECJ’s decision in Kadi II raises the issues of effective judicial protection and standard of judicial review.  In an earlier decision, the ECJ had already established that “Courts of the European Union … ensure review, in principle the full review, of the lawfulness of all Union acts … including review of such measures as are designed to give effect to resolutions adopted by the Security Council.” (Para. 97)  These rights include respect for the rights of the defense and the right to effective judicial protection.

What is notable about this latest decision is that:

  • The Court finds that judicial review is indispensable to ensure a fair balance between the maintenance of (i) international peace and (ii) international security (para.131), suggesting that Courts will play a role in the collective security going forward, particularly where fundamental rights are at stake.
  • Despite the improvements in the listing / delisting process represented by the creation of the UN Office of the Ombudsperson, the Court decides that UN processes do not “provide to the person whose name is listed on the Sanctions Committee Consolidated List … [with] the guarantee of effective judicial protection.” (133)
  • This decision may set a new standard for the review of Security Council acts in other fields.

Another notable aspect of the judgment is its emphasis on a high level of procedural and substantive review.  The ECJ stated that: (more…)

Syria and New Scholarship in International Law

by Kristen Boon

The many tragedies that have unfolded in Syria and particularly, the failure of the international community to intervene in a prompt manner, have led to a series of new analyses on the scope and application of certain doctrines in international law.

Take for example, the argument made by Laurie Blank and Geoffry Corn, in their forthcoming Vanderbilt Journal of Transnational Law Article “Losing the Forest for the Trees: Syria, Law and the Pragmatics of Conflict Recognition” that the “elements” approach used in determining the existence of an armed conflict delayed the application of IHL in Syria by at least fifteen months, until the ICRC concluded a non-international armed conflict existed in July, 2012.

The upshot, according to the authors, was that the main goals of IHL were compromised because of an overly legalistic approach to determining the nature of the conflict.

Similarly, there was an interesting post on the IPI’s Global Observatory by Jérémie Labbé and Tilman Rodenhauser  that cross-border humanitarian assistance in rebel controlled areas should be permissible regardless of Syria’s consent, because Syria does not effectively control those areas.    Drawing on Article 3 and Additional Protocol II of the Geneva Conventions, which permits humanitarian agencies to offer their services in times of conflict, the authors argue that:

A progressive interpretation of international humanitarian law does not consider state consent as a strict legal requirement for the delivery of humanitarian relief into territories that are not under state control. Therefore, states willing to support organizations that engage in cross-border humanitarian relief into opposition-held territory in Syria could make a sound—if arguably quite progressive—legal argument in support of their position.

Information on the humanitarian response to the conflict is available here.

Stephan Talmon’s new article in the Chinese Journal of International Law broaches the important issue of recognition of opposition forces in Syria.  He writes:

State practice in the cases of Libya and Syria shows that for an opposition group to be recognized as the legitimate representative of a people constituting a State, four criteria must be fulfilled. The incumbent government of the State must have lost legitimacy and the opposition group must be representative, broad, and enjoy a reasonable prospect of permanence.

In international law, the representative of a people constituting a sovereign and independent State is, as a rule, the government of that State. A government need not be representative or democratically elected. International law accommodates despots, dictators and democrats alike. But, a government that turns against its own people, that uses heavy weapons, fighter aircraft and tanks to fire on its people, may lose its legitimacy. While international law does not yet provide any clear rules for the assessment of governmental legitimacy, the Libyan and Syrian situations show an emerging consensus that governments which use excessive force against their own population to secure their position lose their legitimacy and must or should go. 

This analysis raises the issue of control over territory in international law and invites us to think about what level of control is required, and what values are served by high or low thresholds in each instance.

Finally, there are a spate of new reports out about the situation in Syria.   Two which I have found particularly insightful are The Syrian Heartbreak by Peter Harling and Sarah Birke, and the International Crisis Group’s new report Syria’s Metastasizing Conflict.    

Have you read anything on the legal implications of the Syrian conflict you would recommend?  Please use the comments box to add to this list.

Haiti Cholera Update: The UN Doesn’t Budge

by Kristen Boon

Following the UN’s rejection of a demand for compensation for Haiti Cholera victims earlier this spring, the Institute for Justice and Democracy in Haiti challenged the interpretation and application of Article 29 of the Agreement on Privileges and Immunities, and formally requested a meeting with UN officials to discuss Petitioners’ claims.

The Plaintiffs asked for the UN to respond within 60 days.  That period ended on July 6, and sadly but perhaps unsurprisingly, the UN has not budged.  The UN responded to claimants, reiterating that the claims would involve a review of political and policy matters.  The other communication forthcoming during this period was a July 5 letter under the signature of Ban Ki-Moon to Maxine Waters, a Member of Congress.  This letter responds to a separate letter by Congresswoman Waters about the cholera epidemic, and reiterates that the UN has determined the claims are not receivable under Section 29 of the Agreement on Privileges and Immunities.

Criticism of the UN’s response to the Cholera claims has been widespread. As I noted in an earlier post, the reliance on Article 29, which distinguishes between public and private claims, is questionable.   In a recent paper on the topic, Professor Frederic Megret notes that one of the problems of the public / private distinction is that due to the “internal, confidential and unilateral” character of the review boards’ procedure the UN has never provided a clear definition of public or private.  A guide to UN practice is available here.

The lawyers for the plaintiffs state that they will now file a case against the UN in a domestic court.   I predict this will be an uphill battle.  Although the UN could and sometimes does waive its immunity under Section 2 of the Agreement on Privileges and Immunities, its posture thus far suggests it will not do so here.  Assuming the UN asserts its privileges and immunities as an affirmative defense before a domestic court, it will probably be successful   There are some decisions in which courts are amenable to limiting the immunities of IOs where there is no available forum, employment cases such as Waite and Kennedy are an example.   If a court were to follow the “no reasonable alternative” reasoning in the Haiti case, the plaintiffs might have a shot.

A recent case against the UN in the Netherlands involving the massacre at Srebrenica illustrates the strength of the UN’s privileges and immunities. In the Mothers of Srebrenica judgement, the Hague Court of Appeals affirmed the UN’s absolute immunity, but found the Dutch state responsible under international law.  This was a compelling set of facts to safeguard IO immunities to be sure:  a peacekeeping mission, the use of force, and an alternative respondent:  the Dutch state.

The takeaway, I believe, is that domestic courts will not provide a satisfactory alternative either. One mechanism that is available – at least in theory –  to the plaintiffs is a request for an ICJ advisory opinion under Article 30 of the Agreement, if someone else takes up the cause:

SECTION 30. All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.

Under this provision, a UN organ could make the request, although again, this seems unlikely.