Author Archive for
Kristen Boon

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.

International Organizations and the Duty to Prevent

by Kristen Boon

ICJ Judge Giorgio Gaja (who was also the special rapporteur on the International Law Commission for the Responsibility of International Organizations) has made the case that International Organizations have a duty to prevent.  The context was a talk he gave at the University of Amsterdam in April 2013 on the European Union and the ILC’s Articles on the Responsibility of International Organizations.

If one takes the approach followed by the International Law Commission on the issue of attribution and applies it to the European Union, the Union would be internationally responsible when its organs or agents commit a breach of one of the obligations that the Union has under international law.

Depending on the content of the international obligation, a breach could consist in the failure to comply with a rule requiring the European Union to ensure that Member States do something or in the failure to prevent them from taking certain actions.

This type of obligation does not necessarily consider the conduct of Member States in a specific way. It may be an obligation of result, like arguably those under UNCLOS that were at stake in the Swordfish case between the European Community and Chile. The fact that the European Union does not achieve the required result of the conservation of swordfish stocks would be sufficient to cause a breach, whether the failure is caused by its organs or agents or by its Member States. The WTO agreements may provide further examples of obligations of result that may be breached by the Union because of the conduct of its Member States.

The emphasis on the conduct rather result indicates there is no requirement to succeed.  But he goes on to say that this obligation is linked to an IO’s capacity to influence the actions of member states, such that an IO might incur its own responsibility if it fails to prevent a breach of an international obligation.

The simplest, and probably most frequent, scenario of a possible responsibility of the European Union is that the Union is bound not only by the obligation breached by the Member State but also by an ancillary obligation to prevent the relevant wrongful act of member States or at least not to contribute to it. Failure by the European Union to comply with that ancillary obligation would give rise to the Union’s responsibility. The Union would then incur responsibility for the breach of this distinct, though connected, obligation. The responsibility of the European Union would be normally additional to the responsibility incurred by the Member State.

These ideas about an International Organization’s duty to prevent are noteworthy for a few reasons.

  • First, they give more context and detail on the duty to prevent than the Draft Articles on the Responsibility of IOs, which refer in general ways to omissions and the Swordfish case, but do not play out scenarios of ancillary IO liability.
  • Second, this logic suggests that IOs may be independently liable for the failure to prevent acts by their member states.   In other words, states and IOs could be concurrently liable for acts and omissions. For terrific work on shared responsibility generally, see the University of Amsterdam’s SHARES project (where I am spending some of my sabbatical).
  • Third, it raises the stakes for IO “supervisory” capacity generally.  Indeed,  a pivotal question in this regard is what are the circumstances that would trigger the duty to prevent?

An IO must be bound by a relevant primary norm of course, and the acts in question must constitute breaches of those norms by act or omission. These are the two key preconditions for application of the Draft Articles.  An additional third factor would be capacity: the ICJ’s Bosnia decision specifies in this regard that the duty to prevent is heavily contextual, in that an actor must use all means available to them, and it will depend on their capacity to influence.  For IOs that operate on a consensus basis (ie, NATO) or that work through advice and assistance rather than coercion (ie, the WHO), it might be hard to argue they have much capacity to prevent.  On the other hand, IOs like the EU or the UN that can coerce member states, might be facing more liability going forward.

What substantive areas will the duty to prevent be most likely to arise?  I would wager to guess that we can expect to see this duty argued in three cases: the use of force, conservation of scarce resources, and situations involving massive human tragedies that trigger the Genocide Convention or other human rights treaties.  I would be interested if our readers predict other areas of activity with regards to the duty to prevent.

The Deadline for Proposals is Here: ASIL Mid-Year Research Forum

by Kristen Boon

The deadline for submitting your proposal has arrived! A reminder that June 14 is the last day you can submit a proposal for the Mid-Year Research forum to be held in NYC from November 1-3 this year.   This conference features works-in-progress by society members – it is a terrific way to workshop your research projects.   Here is the call for papers.

 

Privileges and Immunities of International Organizations

by Kristen Boon

I’ve spent the last days at the University of Leiden in the Netherlands attending a terrific conference on privileges and immunities of IOs.   (In addition to Leiden’s history of excellence in international law, there were some wonderful revelations at the conference about the university’s history — like the fact that Albert Einstein taught there).

The discussions shed light on the complex and sometimes conflicting caselaw regarding why and when IOs are immune from court jurisdiction, and on areas in which this immunity might be waived by IOs themselves, or limited by courts.   This topic is timely:  there is increasing litigation against IOs generally, prompted in part by the expansion of IO mandates, and in part by more developed litigation culture, particularly where human rights are concerned.  A notable example is the so-called “Mothers of Srebrenica” case brought in Dutch courts against the UN regarding the genocide in Srebrenica.  So far, Dutch courts have found the UN to be immune, although the Dutch state has been found responsible in separate litigation.   For an analysis of recent developments in this latter litigation, see Andre Nollkaemper’s analysis here.

Privileges and Immunities are meant to protect the independent functioning of IOs and shield them from vexatious litigation.  Most of the sources of law on this topic, however, are dated:  the General Convention on Privileges and Immunities of the UN was drawn up in 1946 for example, and more recent instruments, such as the Agreement on Privileges and Immunities of the ICC, contain fairly standard provisions that draw on this general approach.  It is sometimes contended that immunities have a basis in customary international law as well, although it appears that the UN is the organization viewed as being most clearly protected in this regard.

Speakers suggested that there has been an erosion of IO immunities at the margins, and that complex tort cases are amongst the most difficult to resolve.  Following Waite and Kennedy, an employment dispute involving the European Space Agency, courts have often linked immunities to “reasonable alternative means.”  Nonetheless, there is little guidance on what standards should be applied to evaluating those alternatives.   Moreover, it is far from clear that claims arising in other contexts – for example under Art. 29 of the Agreement on Privileges and Immunities (see e.g. Haiti Cholera Claim) would be treated in the same way as an employment case that rests upon Article 6 of the European Convention on Human Rights.

Lower courts tend to be more willing to restrict immunities, but on appeal, higher courts generally   confirm the absolute immunity of IOs.  The bread and butter of P & I litigation involves rather routine questions of contract disputes, employment litigation, and claims against staff members of organizations for traffic violations or damage to property.  Ultimately, the issue is one of balancing the right of access to courts (or other review mechanisms) with the independence of IOs.  At present, its not clear that the key instruments on privileges and immunities always get that balance right however.

Symposium on the Law of the Sea and the Law of Responsibility

by Kristen Boon

This week we are delighted to bring you a symposium exploring the intersection between the law of responsibility and the law of the sea.   The motivation for this symposium is twofold:

First, although there is long interaction between the law of the sea and the law of responsibility, the law of the sea has become an area where the intersection is of increasing importance.  The posts this week will highlight the ways in which the law of responsibility is being invoked in current controversies involving marine species and resources like whales, sharks and fisheries; and examine the role of the law of responsibility in recent cases involving search and rescue operations, flagged ships, and whaling.  The posts will also show that in some instances, there are gaps in the general rules of responsibility that render them inadequate or inappropriate for certain types of disputes with regards to the law of the sea.  A dimension of particular interest in this regard will be instances in which questions of shared responsibility arise; these posts will be cross-posted on the SHARES website at the University of Amsterdam, Faculty of Law.

Although we cover law of the sea issues from time to time here at OJ, its not a field we post on regularly.   The second goal behind this symposium is therefore to engage in a sustained discussion on developments of note with experts in Europe, North America, and Australia.

Our bloggers and commentators this week include:   Natalie Klein, Yoshinobu Takei, Irini Papanicolopulu, Seline Trevisanut, Anastasia Telesetsky, Tim Stephens and Ilias Plakokefalos.

I hope you enjoy the topic, and we look forward to lively exchanges and comments.