Author Archive for
Kristen Boon

Implications of Security Council Veto on ICC Referral of Syrian Situation

by Kristen Boon

Before yesterday’s vote on referring the situation in Syria to the ICC, Louise Arbour, outgoing President of the International Crisis Group and former UN High Commissioner for Human Rights, was quoted in the New York Times as saying “The only question in my mind is, will it belong to the cemetery of good intentions or the museum of political scoring? This is, in a sense, an exercise in using the I.C.C. and accountability for posturing.”   In other words, the ICC was never the best option.   I’ve seen several similar comments in the blogs, for example by Dov Jacobs here and Kevin here.

Nonetheless, for a Council that is deeply engaged with Syria, yesterday’s Security Council session marked another defeat for the people of Syria. Despite widespread member state support starting in 2013 for a referral, see this letter signed by 57 states to the Security Council,  and reports that 60 states supported the referral yesterday, the meeting marked the fourth time Russia and China vetoed resolutions involving Syria, and the first time the veto has been used on a proposed ICC referral.   For background on this resolution, see this Security Council Report analysis here.

Because international tribunals such as the ICC would only have the capacity to try a fraction of the crimes, it has always been clear that other mechanisms, such as hybrid tribunals like those in Bosnia, a specially created international court, or the Syrian courts themselves, will be necessarily be part of the judicial response to the ongoing atrocities being committed in conflict.  In this sense, the “pass” on the ICC referral doesn’t mean alternatives aren’t available.   Moreover, US support for this referral (albeit with concessions related to the Golan Heights and jurisdiction over American servicepeople) further closes whatever legitimacy gap the ICC may have had in American eyes.

The legitimate controversy over financing aside, the downsides of potential ICC jurisdiction over ongoing atrocities committed by the government forces and opposition forces alike are really ones that, institutionally, could have and should have been handled by the Court itself, as a separate and independent body. I don’t agree with arguments that the Security Council referral was complicated by the fact that opposition forces are implicated in the commission of atrocities as well, or that the Security Council needs to decide who (which side) should be prosecuted in advance of referring a situation to the court.   What this conflict does indicate however, is the deepening entanglement between international courts and the Council, a theme which runs broadly through the Council’s peace and security work, and through its sanctions practice as well.

This entanglement can be addressed in a few ways.  The First, is greater clarity and better mechanisms to improve the relationship between the Council and the ICC (amongst other courts), while maintaining institutional independence.   For an overview of the issues broadly cast, see David Kaye’s 2013 report here.   Second, working around the Security Council is another option.  Because Syria is not a party to the ICC, the options are limited, but Amb. Christian Wenawaser of Leichtenstein has argued that another route to ICC jurisdiction might be hoc submission under Art. 12(3) of the ICC Statute.   In a talk at the International Peace Institute in January, he stated that the Syrian Opposition could refer the situation to the ICC now, to show the opposition is claiming its competence and supports accountability.  Although it would be a political act, in time, he predicted it might become a legally valid referral if the Syrian opposition is eventually recognized as the government.   The ICC would of course be the ultimate judge of the legal consequences of any such referral, but optimistically, it could trigger jurisdiction from the moment such a declaration was made, not the moment it was accepted. The downside to this approach, however, is that it might become a political tool amongst the competing factions to bolster their status as the official opposition.

Third:  censure of the veto.  A number of prominent NGOs responded to yesterday’s session with a statement urging permanent members of the Security Council to adopt a “code of conduct” that would require the P5 to voluntarily refrain from using the veto in situations of genocide, war crimes, ethnic cleansing and crimes against humanity.  This NGO statement invokes the parallel effort by France to introduce a resolution that would restrict the use of the veto in cases of mass atrocity.   Although France’s efforts were referred to multiple times during the debate, yesterday’s double veto made clear the political costs of blocking the veto are not yet high enough to sway Russia and China’s persistent objections to judicial or other intervention in Syria.

Fourth, using the General Assembly in the spirit of the Uniting For Peace resolution.  Derek Jinks analyzes this path here.

As these options become more attractive by necessity, yesterday’s vote makes clear that the Security Council’s primary is under scrutiny.  Moreover, it reinvigorates the debate about whether the Council’s failure to act creates legal consequences for the P5, member states, or the UN itself.  As Deputy Secretary-General Jan Eliasson said yesterday:

“The Security Council has an inescapable responsibility in this regard. States that are members of both the Security Council and the Human Rights Council have a particular duty to end the bloodshed and to ensure justice for the victims of unspeakable crimes.”

Jus Post Bellum Symposium: What’s in a Name? The Great Definitional Debate over Jus Post Bellum

by Kristen Boon

Carsten Stahn, Jennifer Easterday, and Jens Iverson’s new edited collection Jus Post Bellum: Mapping the Normative Foundations is a terrific contribution to the Jus Post Bellum field. The 26 chapters (one authored by myself) address a range of central issues, including interrogating the structure, content, and scope of the three separate pillars of jus / post / bellum. While the contributing authors reveal some fundamentally different and even opposing views on the essential building blocks of the enterprise, this discord is a sign of the area’s salience. The chapters in this volume indicate that the ongoing inquiry into the principles that should apply after war continues to be an issue area of great interest to practitioners, policy makers and scholars of various disciplines.

Interest in the topic is illustrated by the graph on p. 544 of the book, which indicates the “rock star” status of the concept. Before 2002, there were virtually no references to jus post bellum in the literature. Since 2007, however, references to jus post bellum have jumped off the chart, indicating a growing concentration of scholarship that tranches the disciplines of law, political science, international relations, theology and philosophy. As someone who writes in the field, I see the following as key pillars of jus post bellum investigation: (i) the recognition that building a sustainable peace is important to stopping cycles of conflict; (ii) the UN’s regular engagement in post-conflict reconstruction (raising practical questions about what types of post-conflict activities are important, and what laws should inform and limit IO activities), and (iii) exploring how the jus post bellum principles relate to, add and alter our existing legal framework, particularly with regards to humanitarian law and doctrines like the Responsibility to Protect.

At the meta-level, there are polarized views on the definition of jus post bellum, and more centrally, the utility and enforceability of a jus post bellum framework. Some scholars see that disagreement as a source of potentially useful debate (see in particular, chapters by Vatanparast, Easterday and Bell), while others focus on the conceptual unclarity that flows from these differences of views, emphasizing the limitations from a gender perspective (Hi Aolain an Haynes), the importance of clarifying the relationship with existing bodies of legal doctrines (Fox), and the potential for politicization (Vatanparast).

I note, with some irony, that some of my own work on the subject, all of which is less than 10 years old, appears to be classified as a product of the “old guard” (Introduction at 4), in that I have advocated a restrictive definition of jus post bellum and the norms that might apply in conflict situations. For example, in a 2005 article available here I define jus post bellum as the justice of post-war settlements and reconstruction, and I focus exclusively on non-consensual interventions. Others in the volume, in contrast, argue for interpretive and functional definitions, which are classified as newer approaches to the field. While these approaches certainly merit exploration, I continue to defend, and see greater value in a narrow but deep definition of jus post bellum. One reason is that to the extent that jus post bellum can and will serve a regulatory function, perhaps one day even evolving into a new Geneva Convention, there needs to be practical guidance, on concrete issues, drawn from identified cases. There is a necessary and critical reflective process that is required to getting to those regulations. My approach doesn’t suggest that philosophical inquiries should be short-circuited or curtailed, or that there isn’t value in the dialogue. However, in my view, there are considerable benefits in moving the conversation towards concrete proposals that could have a daily impact on actors in the field, such as the UN. I believe this is most effectively done when we consider jus post bellum as set of legal principles that apply in the transition from conflict to peace, as opposed to a site for exploration.

Another reason I believe a narrow approach is preferable is that there may be greater legitimacy in a narrow set of accepted principles than broad and prescriptive tools that miss the nuances of particular situations. Indeed, a relevant analogy here might be the ILC’s 2011 Draft Articles on the Responsibility of International Organizations (RIO), which, many have argued, would have been more relevant if they were less ambitious. I outline some of the controversies over the RIO articles here. For example, if the ILC had taken on a few issues in areas where there was developing practice and a perceived need for common regulation, it may have resulted a set of proposed Articles with more buy-in from IOs. As it stands, the decision to tackle the wide range of topics developed in the context of State Responsibility, and try to apply them to all IOs writ large, left many feeling that insufficient attention was given to the fundamental differences amongst IOs.

My chapter in this book, titled Jus Post Bellum in Non-International Armed Conflicts, addresses the applicability of jus post bellum to Non-International Armed Conflict Situations (NIACs). Because internal conflicts are regulated by fewer norms than international conflicts, NIACs, which are statistically the most frequent forms of conflict today, raises the following question: should the scope of Jus Post Bellum be different for NIACs? I argue for a “bounded discretion” approach, which would uphold the applicability of universal values that are derived from human rights, international criminal law and international humanitarian law, while instilling deference to local law-makers on issues of rebuilding, reconstruction, and constitutional design. I use the examples of margin of appreciation and the doctrine of subsidiarity to support this approach, to show how multi-level governance theories are relevant to jus post bellum. I argue that in applying jus post bellum, there should be a preference for governance at the most local level, unless the norms are non-negotiable, such as those derived from human rights. The editors of the book have recently applied this concept to justify a principled deviation from peacetime standards.

A final reflection on the scope of jus post bellum comes from a related body of work I am engaged in on UN sanctions. In assessing the Security Council’s peacebuilding activities through the guise of sanctions, I have been struck by the extent to which the Security Council is an important player in the jus post bellum field. Although the Council’s actions are discretionary, sometimes inconsistent, and are not applied in a regular way to like-cases, the Council has, nonetheless, been involved in some way, with almost every most major international conflicts in the last 20 years, save perhaps, Sri Lanka and Myanmar. Indeed, under the so-called sanctions for peace in Liberia and Cote d’Ivoire, the Council has brought about considerable transitions which fall within the jus post bellum framework, by, for example, mandating free and fair elections, an end to the incitement of violence and intolerance, management of natural resources, changes to the government’s administrative infrastructure, and cooperation with international courts and tribunals. I thus agree with Dieter Fleck’s observation on p. 62 that Security Council resolutions alone are not sufficient to create a jus post bellum framework, but there is no question that they provide distinctive areas to evaluate and should not be overlooked. Moreover, the Council’s references to peace agreements in sanctions resolutions, and its role in authoring and enforcing international norms, signifies its significant engagement in and influence over peace building and the jus post bellum. Stay tuned for a future post on this issue, which draws from an article I am writing on the topic.

I have little doubt this book will soon become essential reading for those interested in jus post bellum: it contains an incisive set of analyses on a range of important topics, and makes great inroads in continuing to map the field of jus post bellum. I am grateful both for the opportunity to have contributed to the volume, and for the chance to wear my other hat as an Opinio Juris blogger, to reflect on one of the central issues I saw emerging from the volume: the definition of jus post bellum.

ASIL Mid-Year Research Forum – this year in Chicago

by Kristen Boon

The ASIL Mid-Year Research Forum has fast become known as one of the best workshopping opportunities for new and established international law scholars alike.  It was launched by Kal Raustiala in 2011 at the Mid-Year meeting in LA, moved to Athens, Georgia in 2012, northwards to New York in 2013, and this year will take place in Chicago from November 6-8, 2014.

Tim Meyer and myself were the co-chairs of last year’s research forum in New York, and so I can personally attest to the high quality of papers presented, the wide range of topics discussed, and the frank and stimulating discussions that organically took place during the meeting.

This year, we passed the batons onto the very able Katerina Linos and Karen Alter, who are the 2014 co-chairs.  I highly encourage everyone to participate in this event; even if you are not submitting a proposal, individuals are invited to volunteer as discussants.   This event demonstrates the central role of new scholarship at ASIL. Here is the call:

The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society’s Midyear Meeting in Chicago November 6-8, 2014.

The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress.  All ASIL members are invited to attend the Forum, whether presenting a paper or not.

Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication).  Interdisciplinary projects, empirical studies, and jointly authored papers are welcome.

Proposals should be submitted online (use form below) by June 8, 2014. Interested paper-givers should submit an abstract (no more than 1000 words in length) summarizing the scholarly paper to be presented at the Forum.

Review of the abstracts will be blind. Notifications of acceptance will go out in mid-July.

Papers will be assembled into panels. The organizers welcome volunteers to serve as discussants who will comment on the papers. Please e-mail submissions [at] asil [dot] org if you are interested in serving as a discussant. All authors of accepted papers will be required to submit a draft paper four weeks before the Research Forum. Drafts will be posted on a web page accessible exclusively to Forum participants.

 

For More Effective Sanctions, Time to Examine Question of Termination

by Kristen Boon

Over the last two decades, the key policy question surrounding multilateral sanctions has been effectiveness. Because of studies that suggest that sanctions are effective only about one-third of the time, there has been a concerted effort to develop so-called “smart sanctions,” which increase the effectiveness of Security Council sanctions at the front end by targeting specific groups, individuals, and entities. See, for example, reports here and here that detail the shift away from comprehensive sanctions towards targeted sanctions on the basis of effectiveness.

The emphasis on targeting at the front end, however, has overshadowed an important back-end question that is equally important to effectiveness: termination. This policy lacuna is significant because, once imposed, sanctions tend to stick. Indeed, my research shows that Security Council sanctions tend to last considerably longer than sanctions imposed by regional organizations, and that shorter sanctions episodes are often more effective. In other words, sanctions of long duration may detract from their effectiveness.

Since the end of the Cold War, sanctions have emerged as one of the Security Council’s primary tools for conflict management. Over this period, the objectives of Security Council sanctions have become increasingly ambitious. Although the measures of targeted sanctions are today quite standard, and usually include an arms embargo, asset freeze, and commodity sanctions, the objectives to which those measures are applied can be wide ranging. For example, the objectives of ongoing sanctions today include ending recruitment and targeting of women and children in conflict situations; the protection of civilians; the observance of human rights and international humanitarian law; and longer-term reform of national institutions such as the police, the security sector, and the justice system.

This new generation of sanctions, with their broad goals and transformative objectives, requires new thinking about termination policies. At present, the termination of sanctions is approached in one of three ways: a defined sunset clause, a commitment to review, or an indefinite term. There is no standard policy with regard to which model is used when, although the pattern that has emerged is that sunset clauses of 12–18 months are used in conflict management situations, whereas indefinite sanctions are more likely to be applied where the focus is international security, terrorism, and non-proliferation.

The choice between time-bound or indefinite sanctions is a political one. In 2004, David Cortright and George Lopez reported that time limits were a divisive issue for the Chowdhury working group (an informal working group on Security Council reform), finding that some nations vigorously opposed them, while others wanted to maintain indefinite pressure on recalcitrant regimes.

Clear termination policies are relevant to sanctions’ effectiveness for two reasons. First, targeted sanctions that contain clear objectives can shorten conflict cycles. Because sanctions work best as a means of persuasion and not punishment, a powerful inducement is to provide incentives for compliance with criteria for lifting sanctions. Clear termination policies aid in this goal. Second, shorter sanctions should be encouraged. The incentive to comply will be strongest when narrow, and decisive, sanctions are imposed and carefully managed, in comparison to measures that languish without effecting a change in behavior.

In Sudan, for example, there is a general consensus that the sanctions imposed under Resolution 1591 in 2005 have stalled. There have been no new listings since 2006; no consensus on harmonizing the existing sanctions with a parallel ICC investigation; and little evidence that the sanctions have aided the victims of the ongoing conflict. It is time to consider a sunset clause: wind down these sanctions that are widely viewed as ineffective, and turn to a different method of diplomacy, coercion, conflict management, or even a new and refined set of sanctions.

A related issue is the duration of particular measures under an existing sanctions regime. Refocusing sanctions to better manage the timeline of particular measures would improve effectiveness. For example, does the ongoing arms embargo against al-Qaeda make sense when the real threat appears to be coming from regional spin-off groups? In comparison, efforts to impose narrowly targeted sanctions against al-Shabaab in the Somalia/Eritrea regime or Yemeni al-Qaeda affiliates under the Yemen sanctions are a step in the right direction.

The availability of an internal review process, such as the UN Ombudsperson’s Office, which has the power to consider de-listing requests from those under the al-Qaeda regime, will be relevant to which termination policy is chosen. Although I argue that the default should be short and managed sanctions cycles with defined sunset clauses, an ongoing review process where individuals and entities can bring de-listing claims and are afforded due process protections could justify open-ended sanctions or sanctions subject to review.

Criteria for the termination of sanctions regimes are as essential to the effectiveness of sanctions as intelligent sanctions design. While it is recognized that better targeting may help to shorten conflict phases, the relationship between well defined goals, incentives to encourage compliance, and terminating sanctions regimes has been overlooked. When the objectives of a sanctions regime are met, the sanctions should be amended, repealed, or terminated as soon as possible. This can be achieved through a renewed debate over the policies on sanctions termination and the start of a new dialogue about the best practices of termination.

Want to read more?  Please see my new IPI report entitled Terminating Security Council Sanctions.  This article was first published on the Global Observatory.

 

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.