Author Archive for
Kristen Boon

UN Flatly Rejects Haiti Cholera Claim

by Kristen Boon

 

After 15 months, the UN has finally responded to the Haiti Cholera claims brought by lawyers representing over 5000 victims.  For background on this massive and tragic case, see my post here.

The UN’s rejection was communicated to the claimants’ lawyers via this two page letter which relies on a brief reference to the Convention on Privileges and Immunities in support of the decision.  The operative paragraph of the letter is as follows:

“With respect to the claims submitted, consideration of these claims would necessarily include a review of political and policy matters.  Accordingly, these claims are not receivable pursuant to Section 29 of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946.”

 

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 provision 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.

The UN’s position appears to be that the cholera claim is in the nature of a public (rather than a private law claim cognizable under Section 29) due to the political and policy issues it raises.   Nonetheless, there is no explanation in the letter itself as to why this should be considered a public law dispute.

One key element of a public law claim would presumably be that the dispute arises between a state and the UN, but in this case it is absent because Haiti expressly elected not to participate in this dispute.  Perhaps another rationale is that the claim involves public law because the cholera outbreak arose pursuant to a Status of Forces Agreement with Haiti.

Many elements of a “dispute of a private law character”, however, would appear to be present:  the claim itself was essentially one of tort, the claimants were private individuals (represented by an NGO), and the remedy sought was monetary compensation.   This distinction clearly troubled the claimants lawyers as well, as their press release makes clear.

The upshot of this communication is that the claimants have no venue to pursue their case.    The UN’s decision cannot be appealed.  Moreover, if the UN were sued in a national court, it would assert its privileges and immunities which would shield it from jurisdiction.   Although the Model Status of Forces Agreement  provides for a standing claims commission, no such commission has ever actually been established in any context.   There is a well developed practice of adjudication by local claims boards for routine claims and injuries that occur during Peacekeeping Missions, although in this case, it appears that such a board in Haiti would not have jurisdiction due to the complexity of the case in addition to the level of compensation sought.

Does anyone have views as to whether the UN’s assertion that this is a public law claim is supported by the law or past practice?   If this distinction between public and private claims was so clear, it is surprising that the UN took 15 months to respond, and then in such a terse manner.

A Bigger Transitional Justice Role Recommended for the AU

by Kristen Boon

The International Peace Institute (where, in full disclosure, I am spending part of my sabbatical as a Senior Visiting Advisor) has just released a new report entitled Peace, Justice and Reconciliation in Africa.  The report, which will be of interest to those who follow the ICC and transitional justice issues, is available here

The report makes two recommendations:

1)      The African Union’s Panel of the Wise (a five member consultative body of the AU) should adopt an advocacy role to promote and reinforce guiding principles.  Specifically, the Panel is urged to place transitional justice issues at the center of a new continental legal architecture, which would include promoting ratification of existing legal instruments such as the African Charter on Human and People’s rights and the new African Court on Human and Peoples’ Rights.

2)      The AU should develop a Transitional Justice Policy Framework and strengthen instruments for justice and reconciliation on the continent.  The text provides general background on the ICC’s role in Africa, but of particular note are the recommendations in the Annex that, if implemented, would alter the landscape of international criminal law in Africa.  For example, the Annex suggests the creation of an AU – ICC liason office and AU hybrid courts with jurisdiction over crimes within the Rome Statue and Geneva Conventions. 

If implemented these recommendations would be a significant step towards a stronger AU.  I’ve blogged here about the AU’s increasing use of sanctions, and have watched with interest the growing (but not always harmonious) relationship between the AU’s Peace and Security Council and the UN Security Council, as illustrated by differences of opinion on how to respond to the crises in Libya and Côte d’Ivoire and over the financing of the AU Mission in Somalia in 2011.  On the international criminal justice front, a low water mark was the AU’s decision to oppose the ICC’s indictment of Bashir.  Better coordination between the AU and other institutions like the Security Council and the ICC would change the landscape considerably.  The International Peace Institute’s report is worth a read.

International Law and Scarcity

by Kristen Boon

Scarcity of land, water, food, fish…These are common refrains today, and yet they beg an important question: what is scarcity?  This was the starting point of a terrific conference this week organized by the Dean Rusk Center, at the University of Georgia Law School, the Georgia Journal of International and Comparative Law, and OJ friend Professor Harlan Cohen.

The definition of scarcity can be approached in three ways.  Usually, scarcity is determined by supply and demand.  When demand outruns supply, it goes, we are in a state of scarcity. Nonetheless, the economic view of scarcity is not the only relevant framework because it doesn’t address questions of access.   Another way of looking at the issue, therefore, is through the window of rights and justice.  In other words we must consider vulnerability, exclusions, and access when we are assessing access.  Finally, we might look at the use of exhaustible resources on a trajectory.  As resources are used, we move down a slope.  The issue then is where are we on that slope with regards to exhaustible resources, and what should we do about it?

On the issue of how to respond to questions of scarcity, members of the panels canvassed opportunities to conserve, redistribute, substitute, innovate, acquire, and even abandon.  Some were particularly keen to highlight the problems of waste, as we contemplate scarcity.   Nonetheless, the discussion led to the suggestion we can’t get a handle on any of the scarcity issues in one area without coming to terms with the fact choices may need to be made about what uses are most important.  Normative choices about what to prefer, perhaps based on substitutability, will be part of the solution.  (Although, water and air of course are not substitutable.) Moreover, we might need to think hard about governance choices in order to make those institutions stick.  Management and regulation are therefore part of the conversation.

But these approaches raise big questions about whether to think about all these issues separately or together, in emergency/crisis terms or in terms of long-range planning, locally or globally.  Ultimately, it may depend on what resources we are talking about.  For my part, I discussed scarcity and redistribution in the case of Bluefin Tuna, which I have blogged about here.

At Your Fingertips ….. International Law Apps

by Kristen Boon

It’s becoming a trend …. international law apps that aim to influence policy makers and engage the public. The app for “Children and Armed Conflict” (sponsored in part by the Mission of Liechtenstein)  collates information on the legal framework and grave violations relevant to the effects of armed conflict on children, as well as providing recent news, background information on country situations, relevant Security Council resolutions, and even a checklist for drafting new mandates.  As the app’s homepage explains:  ”with this application we aim to provide policy-makers and those seeking to influence them with readily available key documents and appropriate language on child protection issues in order to increase the agenda’s impact.”    This note by the International Peace Institute indicates how useful the app is in situating what may appear to be isolated incidents within large trends.

There is also an app titled “Safe Access to Firewood and alternative Energy” which addresses the lack of safe access to cooking fuel in humanitarian situations.   This app uses decision trees and matrices on roles and responsibilities to develop strategies for long term fuel supply and identify the responsible agencies and working groups.

An app titled “Women, Peace & Security Handbook” provides a compendium of resolutions that address issues relevant to women, peace and security on topics such as:  sexual exploitation, displacement, and participation.    This app serves as a mini-handbook, providing up to date information on thematic trends within Security Council resolutions.

A movement is now afoot to develop a new Sanctions App that would provide information to practitioners on the design of UN sanctions.  According to preliminary materials distribution by the Swiss Mission to the UN the “Sanctions App (an iPhone, iPad, or android application) would be based on links to relevant operative paragraphs of UNSCRs and also contain interactive features to enable real-time access to various databases while draft texts of new sanctions resolutions are being developed.”

These apps coincide with the proliferation of apps for charitable giving and advocacy on various issues including immigration and protest.  Even the Red Cross has entered the fray, developing apps that will apply in humanitarian emergencies.

Are these apps the leading edge in the growth of international law, and can we see more to come?  Or, might the high costs associated with entry and design keep tightly funded organizations from entering the space?  What do OJ readers think?

Sanctions On the Upswing by Regional Bodies in Africa

by Kristen Boon

The African Union (AU) and the Economic Community of West African States (ECOWAS) are becoming active sanctioners in Africa.   In the last few years, the AU and ECOWAS have applied sanctions in many African conflicts, including Mali, the Central African Republic, Ivory Coast, and Guinea-Bissau.  This represents a lot of activity for the AU in particular, which is only 10 years old.

The role of sanctions by regional organizations is to be contrasted with the UN Security Council’s.  The UN has typically applied sanctions in three situations: counter-terrorism, nuclear proliferation, and in cases of civil wars or interstate conflicts.  However, sanctions by African regional organizations focus heavily on internal political conditions.  Under Articles 23 and 30 of the AU’s constitutive act, for example, the AU can sanction for non-payment of organizational dues and for unconstitutional changes of government. See an analysis of these provisions here.   For ECOWAS, Article 45 of the Protocol on Democracy and Good Governance permits sanctions against its members “in the event that democracy is abruptly brought to an end by any means or where there is massive violation of Human Rights in a Member State.”    In sum, these regional security systems permit sanctions in internal situations where the constitutional order and good governance is at stake. These are situations where the UN Security Council rarely acts, unless it is supporting regional measures, as it did in Guinea Bissau and Sierra Leone.  Regional organizations consequently have a narrow purview, and focus less, as a legal matter, on the international ramifications to peace and security that would trigger the Security Council’s chapter VII powers.

In terms of form, the AU applies what are known as “targeted” sanctions that apply to specific actors and have specific goals.  AU targeted sanctions typically involve travel bans, asset freezes, and denial of transport and communications, as this excellent report by Mikael Eriksson explains.    Both the AU and ECOWAS can suspend membership rights as well.   Suspension might appear as little more than a slap on the wrist, however it has long been observed that there are multiple obstacles to effective implementation of sanctions in Africa, including: (i) lack of local capacity to implement; (ii) porous borders blunting the impact of sanctions, and (iii) the difficulty of reaching targeted individuals who operate outside formal financial systems.   Exclusion from membership of a respected regional organization may therefore have a greater impact than multilateral sanctions imposed by distant bodies, due to the stigmatizing effects and loss of participation in local economic and security communities.

Another difference between UN and regional sanctions is duration.   Whereas UN Security Council sanctions often linger on for years, and some would argue, far beyond their natural lifespan, sanctions applied by the African organizations are typically short lived.  For example, ECOWAS applied sanctions against Mali’s leaders in April 2012, and lifted them a few months later, in August 2012.   Relatedly, regional organizations have been much quicker to threaten sanctions in deteriorating political situations, and use them as a tool to keep the dialogue going in times of instability.  Although the track record is too short to indicate definite trends, it appears that sanctions by regional bodies have been more nimble and responsive to situations on the ground.  Nonetheless, regional organizations have encountered many of the same problems of implementation and compliance as Security Council. The jury is still out on whether regional sanctions are more effective.

Sanctions will be an important nexus point for future cooperation between the UN Security Council and regional bodies.   Of course the UN Charter accords the UN Security Council primary (but not exclusive) responsibility with regards to peace and security. There is interesting work being done on the relationship between the AU’s Peace and Security Council and the UN Security Council on peacekeeping, but little work (as far as I am aware) assessing the relationship between the Security Council and regional organizations on sanctions.  This seems like an important area of inquiry moving forward, as it might provide an opportunity to more fully utilize Chapter VIII of the UN Charter on regional arrangements.

East China Sea dispute: what is the Role of International Law?

by Kristen Boon

The Senkaku / Diaoyu islands, a series of rocky, uninhabited outcrops, are being claimed by Japan, China, and Taiwan, amongst others, both for historical reasons, and because of their potential value in anchoring sovereignty over natural resources like oil.   Some have predicted the dispute may be a military “flash point” in 2013.

As Duncan noted last month, China made a partial submission to the Commission on the Continental Shelf in December, identifying the outer limits of China’s continental shelf.   Reactions of neighboring countries to China’s submission are starting to emerge.   Last week, Korea made a partial submission to the Commission seeking to identify the outer limits of Korea’s continental shelf, which, unsurprisingly, overlap with China’s claim.  The map here is illustrative.

Moreover, in a note dated December 28, 2012, Japan asked the Commission not to consider China’s submission because the distance between the coasts in the area covered by the submission is less than 400 nautical miles, and pursuant to UNCLOS Article 83, the delimitation must be effected by agreement of the parties.  As a result, Japan is maintaining its position that the islands are under Japan’s control and are an inherent part of its territory.

Reactions from other countries with interests in the area (Vietnam, the Philippines and Brunei for example) may be forthcoming.

Despite the overlap between continental shelf claims and sovereignty over the islands however, the  Commission’s direct role in the dispute will be limited.  The Commission makes independent recommendations that are based on technical and scientific data.  It is not competent to consider the merits of division lines between states with overlapping claims, as this article by Coalter Lathrop explains.  As a result, the parties’ submissions to the Commission are without prejudice to their strategy in the larger political contest over sovereignty to the islands.

Looking ahead however, if the sovereignty dispute evolves into a delimitation dispute between the various parties, it could be resolved in one of three ways: military action, political negotiations or international dispute resolution.  To date, most seem to assume that international dispute resolution (and, I might add, international law) will not have much of a role to play.  Although parties to the UN Law of the Sea Convention (and most of the relevant contenders in this dispute are parties to UNCLOS) are required to submit their disputes to one of four methods of compulsory dispute resolution pursuant to Article 298, international jurisdiction in this case is complex because of the number of countries potentially involved, the patchwork of treaty commitments and reservations over dispute resolution mechanisms and law of the sea matters, and the “cultural” hesitance of some of the key players to submit the dispute to an international tribunal. (OJ readers, please chime in on these complexities!)

Nonetheless I think the November 19, 2012 decision of the International Court of Justice (ICJ) in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia) should give the parties to the S/D dispute confidence in the role of international dispute resolution mechanisms.   In that decision, the ICJ found that Colombia has sovereignty over disputed Caribbean islands in the San Andres Archipelago.  The Court also found Nicaragua has sovereignty over a disputed maritime area of approximately 75,000 square kilometers.   In essence, the Court tried to reach an equitable decision by giving one country sovereignty over the islands and another sovereignty over the marine area. Although the judgment was initially met with anger in Colombia, even leading it to denounce the Bogota pact which gave the ICJ jurisdiction in the first place, a few days later Bolivia suggested that it might submit a brewing dispute with Chile to the ICJ, suggesting that the authority of the Court has not been diminished in the region.

The ICJ has a long and impressive track record on maritime delimitation cases.  It has been seized of 15 such cases around the world, including an ongoing dispute between Peru and Chile.  Moreover, compliance rates with ICJ cases are generally high because the ICJ has limited, consent-based, jurisdiction.  Third party alternatives to the ICJ are arbitral tribunals, and the International Tribunal of the Law of the Sea (ITLOS), which released its first maritime boundary decision in March 2012, in the Myanmar v. Bangladesh case.

All indicators suggest that the need for dispute resolution in maritime matters will increase.  As countries get bigger, so to speak, by defining their maritime entitlements like the extent of their continental shelf, it is not surprising that they will start to bump up against one another.  With 180 unresolved maritime disputes around the globe, dispute resolution is becoming increasingly appealing when bilateral negotiations fail or stall.

Countries in the South East China sea dispute should reconsider their circumspection towards international dispute resolution.  We need an international court with international jurisprudence in particularly the type of situation where regional tensions run high.  It is surely better than the alternative:  protests, military exercises and potentially conflict at sea.

Small Steps Towards More Transparency and Fairness in the Al Qaida Sanctions Regime

by Kristen Boon

On December 17 the UN Security Council unanimously adopted Resolution 2083, which further details the listing / delisting criteria for the 1287 Al Qaida Sanctions regime.   This Resolution also extends the Ombudsperson’s mandate for another 30 months, guaranteeing some stability for those who seek delisting.  Simultaneously, the Council adopted Resolution 2082, applying the same measures to the Taliban sanctions regime.

Last week I blogged about the wider dynamics leading up to this resolution here, noting proposals by the Like Minded Group to strengthen the Ombudsperson’s powers and improve the listing procedures, by, for example, codifying the office’s practices.  I also flagged the due process concerns raised by the Special Rapporteur on Human Rights and Counterterrorism.

Few of these proposals survived into the final text of the resolution.  Nonetheless, aspects are discernible indicating the conversation continues.  For example, in paragraph 36, the Ombudsperson may request exemptions to the travel ban so that petitioners can travel to another state to meet with the Ombudsperson.  Similarly, the resolution highlights the importance of providing reasons for listing, and strongly urges states to provide relevant information, even if confidential, and to allow the Ombudsperson to reveal their identities as designating States.

It’s not what advocates for a strong, quasi-judicial regime had hoped for, but critics of this vision note that neither listing nor delisting is a criminal process.  The march towards a Rule of Law applicable to the UN Security Council inches forward.

The UN Security Council Set to Renew Ombudsperson’s Mandate for Al Qaida Sanctions Regime

by Kristen Boon

A big item on the Security Council’s agenda this month is reconsideration of the mandate of the Ombudsperson and Monitoring Regime for Al Qaida Sanctions, pursuant to Security Council resolutions 1267 and 1989.  Of particular interest are measures proposed by Like Minded States this year (including, amongst others, Switzerland, Belgium, Austria, Norway, Costa Rica, and Germany) which suggest a variety of new measures (and see UN Doc S/2012/805 here for the most recent proposals) to strengthen the Ombudsperson’s office, including codification of its practices, allowing the Ombudsperson to request humanitarian exceptions from the list, disclosing the referring state, disclosing reasons for listing and delisting, and potentially even extending the mandate of the Ombudsperson to other relevant sanctions regimes.  The last suggestion in particular would be a fascinating development – an Ombudsperson with jurisdiction over other sanctions committees with listing powers would be the first step towards a generalized review process.

The Security Council’s consolidated sanctions list has generated much attention due to the vast array of legal challenges the list has sparked over the past decade.    Approximately 30 such cases  have now been brought against the UN, EU and member states.  Specifically, these cases allege various human rights problems in the listing process resulting in violations of the right to property, freedom of movement, privacy and the right to an effective remedy. Most famously, Yassin Abdullah Kadi challenged the implementation of the resolution by the Council of the European Union and the Commission of the European Communities. For an overview of this complicated litigation, including October 2012 oral hearings on the second appeal, see this post at the European Law Blog.  Of particular note in this regard is that Kadi was recently delisted by the Sanctions Committee in October 5, 2012, as noted on the Ombudspersons’ website.   Another recent decision of interest is the European Court of Human Rights’ September 2012 judgement in Nada v. Switzerland.  The Court found that Switzerland violated Nada’s right to family and a private life in its implementation Resolution 1267, and noted that implementation of the Resolution does not bar domestic judicial review.

Life is hard for someone on a UN “blacklist”.  Once an individual is placed on the consolidated lists, States are required to impose a travel ban, asset freeze, and arms embargo, resulting in a situation where the named individuals will not be able to sell property, pay their bills, travel, deposit their paychecks or access funds.  And of course there is the general censure of the community.   Ultimately, sanctioning amounts to the imposition of a penalty.  Yet because the sanctions are not part of a criminal procedure the due process normally afforded to those accused of a crime does not apply.  Although there is evidence the sanctions are effective in combatting Al Qaida, the Security Council’s regime is perhaps better known for the cases in which it was ineffective: where the wrong individual was listed (cases of mistaken identity), when the information was found to be incorrect, or where the individuals were deceased.  The Watson Institute at Brown has just published a new report on Due Process and Sanctions here.  In addition, the Graduate Institute in Geneva issued an assessment of the effectiveness of targeted sanctions generally here.

In an attempt to improve the process, the Security Council created an Ombudsperson’s office in 2009 under Resolution 1904 to assist with delisting requests.  The post is currently held by Kimberly Prost.  The regime was strengthened two years later under Resolution 1989, when a new rule was adopted: if the Ombudsperson recommends against retaining a listing, then that listing will be removed unless the Committee decides by consensus to retain it.  To date, there have been approximately 34 requests for delisting.  Twenty of these came after the regime was strengthened under Resolution 1989.  Of those 10 have been delisted, and 1 was refused.  The most recent report of the Ombudsperson is available here.  Of particular note are the details on how the Ombudsperson has tried to improve fair process.

There is no doubt that the process has improved, but such improvements have not satisfied many critics.  Ben Emmerson, UN Special Rapporteur on Counter Terrorism and Human Rights, released a report in September 2012 that highlighted deficiencies of the Ombudsperson’s office from a human right perspective.  Specifically, he noted that the Ombudsperson’s office is not strong enough because it cannot make its own decisions on delisting, nor can it force member states to provide information.  He also noted that the Ombudsperson is not required to exclude evidence obtained by torture.  He argues that the process does not meet international due process standards.

The new generation of “smart” sanctions have played an important role in restraining the activities of terrorist organizations, but they have also had a significant impact on individual rights and freedoms.  The ongoing debate over the power of the Ombudsperson and the mandate of the 1267 Monitoring Team underscores the dialogue between national and regional courts who have highlighted the many due process concerns in the Committee’s approach on the one hand, and the member states that are incrementally moving towards an administrative / judicial process applicable to the Security Council and its power to sanction.  The Security Council is likely to adopt the extension early next week …. stay tuned for an update!

Land Grabbing and the New Economic Order: Revenge of the CERDS

by Kristen Boon

The phenomenon of land grabbing involves powerful transnational economic actors, including corporations, national governments, sovereign wealth funds, and private equity funds, that have searched for empty lands in distant countries that can serve as sites for fuel and food production in the event of future price spikes.

Typically, the foreign investors enter long-term leases with national governments for 25 or 50 years on a renewable basis.   However, land rights are a thorny problem the center of the system.  As Ruth Hall, a South African expert on Land Rights, argues there is a conflict between the status of the (usually unregistered) rights of customary landholders and the authority of states to transact lands to which customary claims are made. Indeed, there is growing evidence that many of the lands allocated to the long-term leases are already occupied and used by small-scale farmers.

One of the obstacles that has arisen in confronting land grabbing is the lack of law in the area.   Earlier this year, FAO released new guidelines on land grabbing that are starting to fill the void. The guidelines cover land, forestry and fisheries (not water and other natural resources like minerals). They also offer principles on responsible tenure governance and the legal allocation of tenure rights. In 2010, the World Bank and partners have promulgated a set of Seven Responsible Agricultural Investment Principles for investors, which focused on corporate social responsibility for investors. In response, the UN Special Rapporteur on the Right to Food produced a set of Ten Minimum Principles on the Right to Food.

All of these guidelines, however, are voluntary.  At present, there isn’t much international law has to say about the problem. This gap got me thinking about the relevance of the Charter of Economic Rights and Duties of States (CERDS) which is the legal component of the New International Economic Order (NIEO) Declaration adopted by the UN General Assembly in Resolution 3281 in 1974. Both CERDS and NIEO sought to establish a new system of rights and duties that would redress economic inequalities between developing and developed states.  In essence, its goal was the creation of a just and equitable system that promoted the economic security and independence of developing countries. CERDS was adopted in the wake of the OPEC crisis of 1973, and while 120 states voted in its favor it garnered strong objections from many developed states at the outset.

Although the general consensus has been that CERDs and NIEO have passed into the annals of history, there are some parallels with the attempts to develop rules on land grabbing.  Indeed, would these new instruments be coming to the fore if it hadn’t been for the precedential value of CERDS?  Land grabbing has a north/south dimension, which is reminiscent of some of the colonial era land grabs. What is new is the south/south dynamic, however, given the involvement of countries like Brazil, Qatar, China, India and South Africa. This World Bank Report gives an in depth assessment of the issue.

A major focus of CERDS was sovereignty over natural resources.  Art. 2, the most controversial article, states that every state has full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities. This article also contained a clause that would have permitted compensation after nationalization or expropriation to be determined by the domestic law of the nationalizing State. It is uncontroversial that today, this nationalistic approach to compensation has been overtaken by more exacting standards determined by BITS and other rules of Customary International Law.

In her lucid new book The Right to Development and International Economic Law, Isabella Bunn argues that “elements of  the NIEO survive in the intention and interpretation of the UN Declaration on the Right to Development.”  It is well documented that Article 14 on the Liberalization of Trade was influential during the negotiations for the World Trade Organization.  Indeed, equitable development, technology transfers and the relevance of human rights to economic development have all emanated from NIEO.

Want to know more? I understand that Fred Pearce’s book the Land Grabbers provides a very readable introduction. It’s on my Christmas list.

Bluefin Tuna: Is the Tide Turning?

by Kristen Boon

A recent meeting of the International Commission on the Conservation of Atlantic Tuna (ICCAT) has been heralded by environmental groups as a win for science in the management and conversation of scarce resources on the high seas.  One of the species within ICCAT’s jurisdiction is the Bluefin Tuna, a species that has famously declined, and some would claim, collapsed in the last 20 years.

Indeed, it was the precipitous drop off in Bluefin Tuna stocks two years ago that put ICCAT under the global magnifying glass.  When the consequences of ICCAT’s mismanagement of the stocks and its inability to sanction overfishing became apparent, some countries tried (unsuccessfully) to do an end run around ICCAT’s jurisdiction by listing the Bluefin as an endangered species under the Convention on the International Trade in Endangered Species (CITES).

Bluefin Tunas are a highly migratory and valuable fish that swim between national and international jurisdictions.   Because there are few restraints on high seas fishing under the principle of open access, it has been very difficult to create regimes that can effectively regulate or reallocate fishing rights.   The UN Law of the Sea Convention and the UN Fish Stocks Agreement create some limitations on the right to fish on the high seas but they do not create precise rules on how to allocate scares stocks.

Overfishing of highly migratory stocks has become a classic tragedy of the commons:  participants are driven to permit practices and even adopt strategies that will produce overfishing.    In 2010, a New York Times Magazine article entitled Tuna’s End asserted:

“Tuna [are] … the terminus of an idea: that the ocean is an endless resource where new fish can always be found. In the years to come we can treat tuna as a mile marker to zoom past on our way toward annihilating the wild ocean or as a stop sign that compels us to turn back and radically reconsider.”

The press release from the November Morocco meeting indicates that ICCAT may have turned a corner.  Catch limits were extended through 2013, and there is some evidence that the stocks are rebounding.    Moreover, ICCAT has undertaken a variety of new measures to curb Illegal and unregulated fishing.

Nonetheless, not all contracting parties are happy about this.  Reports in the Canadian press here indicate that some countries continue to push for higher quotas.

Ultimately, this issue raises the question of how best to incentivize states to stop overfishing.   One approach might be to promote substantive and strategic linkages.  In the context of fisheries, there are obvious links between fishing and trade, because seafood is now one of the most highly traded commodities.  A reduction in trade through a moratorium or a trade certification regime could be an effective response to overfishing.    However, to date, there have been no successful attempts to use Article XX of the General Agreement on Tariffs and Trade (GATT) to restrict the capture of over-exploited species.  In the Tuna-Dolphin case, the GATT panel found that one country cannot take trade related action to implement its domestic laws. In the Shrimp -Turtle case, the WTO appellate body has been careful to emphasize that sovereign nations can adopt measures to protect endangered species, but its clear preference is that states address conservation through multilateral fora instead.  Ultimately trade must be part of the solution, whether under the WTO or as part of a separate agreement.  Yet it may be decades before countries agree that the international trade in fish should be limited to sustainable fish stocks caught in a sustainable manner.

Another approach might be to incentivize states to comply through financial reward.  One historic agreement illustrative of compliance through financial means is the 1911 Fur Seals convention, which secured the Pribilof herd of seals in the North Pacific Ocean.  Scott Barrett’s detailed account of the treaty in his book Environment and Statecraft demonstrates how the common property problem was rectified by reducing catch and distributing the gain through compensation.  Although there are some important differences between seals and bluefin tunas, in particular, fur seals are connected to territorial lands making them easier to regulate and enforce, there might be room to structure a new agreement for overexploited species where nations that overfish are compensated for reducing their fishing efforts.  The funds to compensate could be generated by vessel licensing schemes, certification and labeling schemes of the tunas themselves, or by taxing vessels directly.

Security Council Debates Maritime Piracy

by Kristen Boon

Under India’s presidency, the UN Security Council debated the global phenomenon of maritime piracy on November 19.  The outcome was a presidential statement, not a resolution.  Although not binding, it highlights future trends in the Security Council’s approach to piracy.   Unlike prior Security Council actions that have been region specific, Monday’s debate reflects the global dimensions of the issue including references to the spike in attacks off the oil rich coast of the Gulf of Guinea.

The Security Council’s involvement in matters of piracy goes back several years now, when piracy off the coast of Somalia became a major international problem.  Under Security Council resolution 1816, the Council famously authorized states to enter the territorial waters of Somalia, limiting the sovereignty of Somalia with regards to this crime that historically was linked to the high seas.   Since then, the Council has authorized limited incursions onto land, and has generally been a prime mover on legal approaches to the problem, although always circumscribing its resolutions to the situation at hand.  Resolution 1816, for example, is carefully worded to apply only to Somalia, and the resolution explicitly notes it is not indicative of a new customary international rule.  Another resolution in which the Security Council asserted a decidedly legal approach was Resolution 2020, which highlights the link between attacks at sea and conspiracies and criminal networks on land, and urges states to establish anti-piracy courts.

The November 19 debate is notable for a few reasons.  First, the statement encouraged the development of new rules of deployment for private security contractors.  It appears that the IMO is leading the charge in this regard, and some interesting recommendations can be found on its website.  Second, there was some concern prior to the debate about whether to include a reference to illegal fishing and dumping in the statement.  The presidential statement does not, in the end, refer to these related issues although several countries highlighted them in their speeches.  Third, Argentina took issue with the Security Council’s assertion of jurisdiction.   The representative said that “unless a situation had engendered Council action under Chapter VII for other reasons, such as the situation in Somalia, piracy was not under the competence of the body; it was, rather under the framework of the Convention on the Law of the Sea.”

I have been observing the Security Council’s response to piracy for several years now, and I have been repeatedly surprised by the heavy overlay of law in its resolutions on this topic.  Indeed, in my opinion, the piracy resolutions are distinctive in their multiple concrete references to laws and legal institutions.  For example, one sees references to the Djibouti code of conduct on human rights, anti-piracy courts, methods to strengthen domestic criminal laws, and of course, to the overarching legal framework created by UNCLOS and SUA.  This preambular paragraph from Resolution 2020 illustrates the Security Council’s legalistic approach:

 “Recognizing the need to investigate and prosecute not only suspects captured at sea, but also anyone who incites or intentionally facilitates piracy operations, including key figures of criminal networks involved in piracy who illicitly plan, organize, facilitate, or finance and profit from such attacks and reiterating its concern over a large number of persons suspected of piracy having to be released without facing justice, reaffirming that the failure to prosecute persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia undermines anti-piracy efforts of the international community and being determined to create conditions to ensure that pirates are held accountable…”

I wonder whether others see the Security Council as exercising a particularly overt legal role in the realm of piracy as well, even if the Council is attempting to curb the impression its resolutions are precedent setting.   And I wonder whether the Security Council’s legal bid in the field has prompted countries like Argentina to retaliate by opposing general Security Council jurisdiction over matters of piracy.

 

 

The Responsibility to Protect

by Kristen Boon

I recently had the honor of chairing a panel on the Responsibility to Protect at the annual Canadian Council of International Law (CCIL) conference in Ottawa.   The evolving contours of this concept provided for a stimulating exchange between panelists Lieutenant Colonel David Antonyshyn, Dr. Joanna Harrington, and Ryan Liss.  I highlight some of the themes here for broader reflection and comment.

The Responsibility to Protect, or “R2P” as it is know in the business, gives expression to the conviction that it is unacceptable for States to allow gross violations of human rights against their populations.    It is narrow, in that it applies to “genocide, war crimes, ethnic cleansing and crimes against humanity.” Nonetheless, it is a powerful concept in that it recognizes that the international community has a responsibility to prevent these crimes.   Prevention can range from education and public suasion at one end of the spectrum to humanitarian intervention backed by military force at the other.

Military force, of course, is where the real controversy lies, and it is worth recalling that the 2005 World Summit Outcome document condoned the operationalization of the doctrine only within the framework of the UN Charter.   As such, there is little controversy that R2P is primarily a political doctrine that justifies intervention within the existing UN Charter. Whether it could be invoked unilaterally or outside of the UN Charter is the subject of great debate.

R2P has been put to the test these past 14 months.  When the UN Security Council invoked the doctrine in Resolution 1973 on Libya, most concurred this constituted an explicit and robust application of the doctrine, which resulted in the Security Council’s authorization of military intervention.   Nonetheless, within weeks, critics suggested that the intervention had gone beyond the intended Security Council mandate and had become a convenient cover for regime change.  Not long after, as is well known, the situations in Bahrain and Syria began to spiral downwards, and many argued that intervention was again needed and appropriate.  Nonetheless, the Security Council has not garnered enough support to invoke the doctrine since Libya.   China and Russia have used their veto to block Security Council resolutions on Syria with similar R2P language, and it is not clear if and when the Council will endorse the concept again.

One particularly interesting exchange was whether Libya was the highwater mark of R2P.  If one views R2P as equal solely to military intervention this might well be true, at least in the medium term.  Nonetheless, there are some factors that make the Libyan intervention distinctive.   First, Ambassador Shalgam, the Libyan Ambassador to the UN at the time of the Security Council debate, consented to Security Council intervention and called for the UN to stop Gaddafi.   As such, the intervention was invited by an accredited government representative (albeit one who was estranged from Gaddafi at the time of the intervention), which, partially vitiated concerns about violating state sovereignty.  Second, Gaddafi’s remarks about “germs, rats and scumbags” may have constituted genocidal language, which triggered a responsibility to prevent pursuant to the Genocide Convention.  Third, R2P contains a plethora of softer tools including election monitoring (Kenya), radio jamming (Rwanda), and other non-military forms of intervention.   These tools are regularly and effectively employed under the R2P umbrella suggesting that the doctrine is alive and well.

Another dynamic worth highlighting is the growing opposition to R2P by the BRICs.  Professor Joanna Harrington discussed Brazil’s Concept paper entitled “Responsibility While Protecting”   highlighting how a mid-way position has been propagated by Brazil which calls for proportionality and accountability while protecting.   Although this concept paper has generated a lot of discussion, it has not yet taken concrete institutional form. 

Some of the questions arising out of the panel include:

  • What are the alternatives to R2P?  Should regional bodies like the African Union or Arab League step up to play a bigger role?
  • Will R2P be subsumed by related but less charged concepts, such as “the protection of civilians”?
  • Can Brazil’s proposal put in place limits that will effectively curb the invocation of R2P by over-zealous interlopers?
  • Should R2P apply in natural disasters, particularly if the disasters create a pretext for targeting (e.g. punishing or relocating) a particular group?
  • What is the relationship between responsibility, sovereignty and self-determination?  Ryan Liss provides a very interesting account here.