Author Archive for
Kristen Boon

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.

2013 ASIL Research Forum

by Kristen Boon

I am delighted to announce that Tim Meyer and I will be co-chairing the 2013 ASIL Research forum.   I hope many of our readers will send in abstracts for this terrific conference.  The deadline for proposals is June 14.  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 at the New York University School of Law on November 1-3, 2013.

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

Interested participants should submit an abstract (no more than 500 words in length) summarizing the scholarly paper to be presented at the Forum. 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).  Authors may only submit one proposal, although an author may be listed as a non-primary co-author on multiple proposals.  Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Member proposals should be submitted by Friday, June 14. Please click HERE to get started.

Proposals should include 1) the name, institutional affiliation, professional position, and contact information for the author(s), and 2) an abstract.  Review of the abstracts will be blind, and therefore abstracts should not include any identifying information about the author.  Abstracts containing identifying information will not be reviewed.   The Research Forum Committee will announce selections by July 25.

The Research Forum Committee will organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers. All authors will be required to submit a draft paper 4 weeks before the Research Forum as a condition for participation.  Failure to submit a draft paper may result in disqualification.   Drafts will be posted on the Research Forum website.

ECHR Case Filed on Extraordinary Rendition

by Kristen Boon

Another extraordinary rendition case has been launched in the European Court of Human Rights (ECHR) that will be relevant to those following Guantanamo detainees:  Abu Zubaydah v Poland involves the CIA’s black sites. The filings are available here.  A press release by Interrights, co-counsel (with Joseph Margulies and the Polish firm Jankowski & Co.) describes the significance of the case as follows:

The case is of interest because the complaint alleges that, through both its acts as well as omissions – including by agreeing to house the secret detention centre, turning a blind eye to normal protections and oversight, and otherwise participating in and facilitating the extraordinary rendition of Abu Zubaydah into and out of Poland – the Polish authorities are responsible for multiple violations of Abu Zubaydah’s rights.
This case is also important because it is the most significant (and potentially only) European investigation into black sites underway.   The decision may help to shape the investigation, particularly because it focuses on the benchmarks for effective review. It follows El-Masri (decided by the ECHR in December 2012).  Related cases, Abu Zubaydah v Lithuaniaal Nashiri v Poland, and al Nashiri v Romania, are still pending before the ECHR.
Abu Zubaydah is a stateless Palestinian born in Saudi Arabia who was transferred to Guantanamo Bay in 2006 and remains in indefinite detention.   He has not been charged with a crime by a military commission or court.

The Transformation of the Permanent Court of Arbitration

by Kristen Boon

The Permanent Court of Arbitration (PCA) recently released its 2012 annual report, which documents its remarkable institutional transformation. Established in 1899, the PCA is an intergovernmental organization based in the Peace Palace in The Hague.  Although it has a long and interesting history, including housing the Iran – U.S. Claims Tribunal for a number of years, over the last 12 years the PCA has seen its workload and subject matter scope increase exponentially.  As Secretary General of the PCA, Hugo Siblesz, noted in a speech in February:

“As of this moment, the PCA is acting to administer 71 pending cases, including 5 inter-State arbitrations, 48 arbitrations under bilateral or multilateral investment treaties, and 18 arbitrations in contract disputes involving States, State entities, or international organizations. In total, 152 arbitrations have been brought to the PCA in the past 12 years, in comparison with only 34 cases administered in the first one hundred years of the organization. In inter-State arbitration, the PCA has recently seen more activity than at any other point in its history – including the flush of arbitrations brought to the PCA in its early days before the First World War. And in disputes between States and private parties, the PCA has now handled more arbitrations under the UNCITRAL Rules than any other institution, developing in the process a singular experience in the application of those Rules.”

There was an extremely interesting panel on the PCA organized by ASIL in February, focusing on the PCA’s reinvention.  The PCA is an active and multi-faceted institution that acts as a registry and/or appointing authority in a range of international law issues, including public international law disputes, investor-state arbitrations, commercial contract disputes, law of the sea arbitrations under Annex VII of UNCLOS, and energy charter treaty disputes.  It has even administered an arbitration between a State and an armed movement within its territory (namely the Abyei Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/Army in 2008 – 9).

One institutional feature of note is that PCA offers a development assistance fund for states that require financial aid for use of PCA’s services.  Member states donate to the fund, and the 2012 report  notes 8 states – 5 from Africa, 2 from Asia and 1 from Latin America have received assistance thus far.  In addition, the PCA has just adopted new procedural rules for disputes involving at least one State, state-controlled entity, or international organization.    An interesting addition here is Article 34(7) which requires states to report on execution of the award, in an attempt to improve compliance.

Amb. Siblesz noted that dispute resolution in international matters is on the upswing generally, which is a trend to note in terms of the field generally.  Nonetheless, one aspect of the PCA’s comparative success in attracting cases appears to be its ability to provide high quality, quick, and confidential services, in a range of international law matters.  Thus in terms of lessons to be learned, generality rather than speciality appears to be aiding the PCA in its competitive bid.  Its general successes are also leading some to speculate whether it could assist the UN on a more permanent basis with regards to mediation and arbitration of international matters.  Thus, for example, might the PCA be used by the UN as a go-to institution for international dispute resolution generally, perhaps supplementing or even replacing in certain cases, the usual system of special envoys and representatives?


New ITLOS Advisory Opinion Sought

by Kristen Boon

The International Tribunal of the Law of the Sea has received a request for an advisory opinion from the Sub Regional Fisheries Commission located in Senegal. The Commission is a treaty based organization founded in 1985, which has seven member states (Senegal, Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, and Sierra Leone). Some background information on the Commission is available here.

The Commission’s request asks four questions:

1. What are the obligations of the flag State in cases where illegal, unreported, and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zone of third party States?

2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag?

3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?

4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and sticks of common interest, especially the small pelagic species and tuna?

If ITLOS’s approach to this advisory opinion is similar to its Advisory Opinion on the Seabed, we can expect a creative and expansive response.  There, ITLOS affirmed the due diligence principle (which the ICJ recognized in the Pulp Mills case), and gave it content by linking it to the obligations of states.  ITLOS therefore has a trackrecord of “making waves” with regards to linkages between the law of responsibility and the Law of the Sea.

Nonetheless, at present, there is not much information generally available about the background of this request other than general difficulty with IUU fishing in the region.   Has the commission brought this case to try to gain leverage with distant water fishing nations?  Is this ultimately a dispute with the EU?   Some relevant conversations about the law of the sea and responsibility are taking place at the Food and Agriculture Organization that might provide useful background information.  See in particular the draft guidelines on Flag State performance that address questions of flag state responsibility for IUU fishing.

And we at Opinio Juris hope to contribute to this conversation by way of a symposium later this spring on the intersection between the law of the sea and principles of state responsibility.

New Guidelines for Armed Private Security Companies Doing Business with the UN

by Kristen Boon

Armed Private Security Companies (APSC) doing business with the UN are now subject to a new set of practices and protocols that contain a multi-stakeholder monitoring and complaints mechanism.   These practices and protocols are set forth in the International Code of Conduct for Private Security Providers (“Code”), which the UN incorporates via its new Guidelines on the Use of Armed Security Services from Private Security Companies (“Guidelines”) (to be read in conjunction with the UN’s Security Policy Manual, Chapter IV, Section I, “Armed Private Security Companies”).

The UN now requires that APSCs comply with the Code, and limits its hiring of armed APSCs to those that cooperate with the mechanism, as detailed in Section F of the Guidelines.  Prior to commencing UN service, the Guidelines require the APSC to provide training to its personnel on, among other things:

  • cultural sensitivity training
  • Human Rights Law and application
  • Use of Force training
  • integrity and ethical awareness
  • preventing sexual harassment

James Cockayne provides a good overview of the context and content of the Guidelines over at the IPI’s Global Observatory.

The effort is significant for a few reasons.  First, it demonstrates a new effort towards regulating the activities of the UN’s numerous commercial partners in the peace and security field.   This effort to implement and maintain international standards will replace practices that many have described as incoherent and inconsistent (as described in the report here).

Second, these UN specific Guidelines supplement a general but stalled effort to create a multilateral convention on private military and security companies, and will consequently contribute to the soft law in the field.   The most recent draft (from 2010) is available here.  The UN is thus to be applauded for introducing the Guidelines at this time, as opposed to stepping back and waiting for the multilateral process to mature.

Finally, the Guidelines are indicative of a general move towards multi-stakeholder regulation of non-state actors.   This trend has been noted in other international areas including health, as this paper by Professors Abbott and Gartner make clear.   The oversight mechanism here will be established as an association under Swiss law.  It will be governed by two multistakeholder bodies: a General Assembly and a Board. There are three ‘pillars’ in each composed of civil society, industry and states/IOs.  Voting is arranged so as to give any pillar the power to block a decision.  As a result, states, civil society organizations, and industry must cooperate in the Association’s certification, human rights monitoring and complaints mechanism processes.

The oversight mechanism works by requiring the Association to review APSC performance under the Code through external monitoring and self-reporting based on established criteria.  If an APSC violates the code, the Association can initiate suspension proceedings.  For proceedings launched by individuals, the Board can also set up a grievance process to ensure an effective remedy.

I am interested in what OJ readers think.  Will this approach fill an accountability gap by improving   human rights compliance in the field?  Moreover, will this soft law approach establish new benchmarks for an eventual multilateral treaty?  There will be a panel on this topic at the annual ASIL meeting later this week which will be well worth attending.


Expanding the “Jaws” of CITES

by Kristen Boon

States parties to the Convention on the Trade in Endangered Species (CITES) voted to list five new commercially valuable shark species under Appendix II last week, notwithstanding an attempt to reopen the discussion in the final plenary by some dissenters. The international trade in oceanic whitetip (Carcharhinus longimanus), scalloped hammerhead (Sphyrma lewini), great hammerhead shark (Sphyrna mokarran), smooth hammerhead shark (Sphyrna zigaena) and the porbeagle shark (Lamna nasus) will now be restricted.  These species have been harvested in huge numbers for their valuable fins and/or meat.   On the day of the vote, Susan Lieberman of the PEW Environmental Trust said “today was the most significant day for the ocean in the 40-year history of CITES.”  This CITES press release gives more details on the measures.

Under CITES, species listed under Appendix II are those “that are not necessarily now threatened with extinction but that may become so unless trade is closely controlled… International trade in specimens of Appendix-II species may be authorized by the granting of an export permit or re-export certificate.  Permits or certificates should only be granted if the relevant authorities are satisfied that certain conditions are met, above all that trade will not be detrimental to the survival of the species in the wild.”

A similar attempt was made to list Bluefin Tuna on Appendix II in 2010, but this failed to garner enough votes.  I blogged about it here, and described it as an attempt at regime shifting (away from ICCAT, the RFMO with jurisdiction over tunas, and towards CITES).

The CITES listing is only one piece of good news for sharks however.  On the same day, a separate UN Agency, the Food and Agriculture Organization, released a report underscoring the critical condition of other shark populations in the Mediterranean and Black Sea.

In addition to sharks, a number of tropical timber species were added onto CITES Appendices, which will be enforced by a number of sophisticated new timber tracking technologies.

An attempt to list Polar Bears was defeated.    The discussion (which pitted Canada, which opposed the listing as it exports some polar bear parts, against the United States) was noteworthy because there was a difference of opinion with regards to the cause of the threat – climate change or hunting practices.

As I noted in my blog about tunas, there are few restraints on high seas fishing due to the principle of open access.  It has thus been difficult to create regimes that can effectively regulate the fishing of migratory species.  These additions to the CITES Appendices thus mark both an important expansion in the scope of CITES and an attempt to protect a broadening range of scarce natural resources that are subject to commercial exploitation.

Lex Specialis and the Responsibility of International Organizations

by Kristen Boon

Lex Specialis was a topic of much discussion during the ILC debates on the Responsibility of International Organizations.  The central issue was this:  how broad is the provision, and does it give IOs carte blanche to derogate from or contract around the residual rules of responsibility?   I’ve just posted an article on SSRN here that gives my take.  Here is the abstract:

The International Law Commission’s recent endeavor to progressively develop principles of responsibility applicable to international organizations reignited an old debate: do international organizations share a common set of core attributes? Or are they fundamentally sui generis, given their great variations in mandate, size, and power vis–à– vis member States? The comments submitted by international organizations to the Commission demonstrate that there is very little consensus on the genus of international organizations, and consequently on the application of general rules to these increasingly important and pervasive bodies. Indeed, most organizations took the position that the founding premise of the international legal framework applicable to them should be speciality not generality.

The article is part of a forthcoming book edited by Dr. Maurizio Ragazzi entitled The Responsibility of International Organizations.   The book contains a block buster list of authors.  Keep an eye out – it will be published by Brill.


Topics of Interest at the 22nd Session of the Human Rights Council

by Kristen Boon

The 22nd session of the Human Rights Council opened on February 22, and is now in its second week.  The overall program of work is available here.

A hot topic next week will be the March 11 discussion on Syria, which will draw on this February 2013 report by the International Independent Commission of Inquiry on the Syrian Arab Republic.

In addition, the Council has now discussed the right to adequate housing, enforced disappearances and the rights of the child.   Yesterday, Special Rapporteur on human rights and counter terrorism Ben Emmerson urged US authorities to “publish without delay, and to the fullest extent possible, the Senate Select Committee on Intelligence report into the CIA’s secret detention and interrogation programme” as this article explains.  There is a nifty chart showing countries and issues to be addressed here.  Webcasts are available here.