Author Archive for
Kristen Boon

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.

From the Trenches: Head of State Immunity Discussed in Sixth Committee of GA

by Kristen Boon

This week, state delegates to the Sixth (Legal) Committee of the UN have been debating the most politically sensitive topic of the latest International Law Commission‘s (ILC) report: Head of State Immunity from criminal jurisdiction.

The topic is sensitive for several reasons.   First, it raises the question of whether there should be exceptions to immunity for serious crimes.  In this regard it is relevant to note that Art. 27 of the ICC Statute does not recognize the immunity of state officials for international crimes, although delegates noted that courts can differ widely on this issue.   Second, it requires a determination of what kinds of officials should benefit from the immunity – the traditional troika of heads of states, ambassadors, and foreign ministers– or a broader range of foreign state representatives.  Third, it forces the issue of how to balance accountability and immunity, and with that, deference to state sovereignty.

The ILC had requested state comments on their national law and practice on two issues:

(a) Does the distinction between immunity ratione personae and immunity ratione materiae result in different legal consequences and, if so, how are they treated differently?

(b) What criteria are used in identifying the persons covered by immunity ratione personae?

Immunity ratione pesonae refers the personal immunity of a head of state.  It is linked to the office, and is very broad because it can cover public and private acts.  In contrast, ratione materiae, or functional immunity, covers acts by state officials in their official capacity.  It is determined by the nature of the acts rather than the office itself, and would apply to former officials after they have left office.  The ICJ has tackled aspects of these questions in the Arrest Warrant case, in Djibouti v. France, and most recently in the Jurisdictional Immunities case.

The topic is legally significant because there has been a difference between the views of national and international courts.   To date, it appears that troikas get absolute status-based immunity from proceedings in other countries’ courts, but not from proceedings in international tribunals.    Moreover, there is a link between immunities and state responsibility.   As the UK delegate explained, a plea of immunity ratione materiae in criminal cases was a plea by the State that the act of its official was an act of the State itself, which was an acknowledgement of the State’s responsibility and, therefore, meant that any claim or remedy would lie at the level of international law.  Another contentious issue is whether there should be exceptions to immunity for violations of jus cogens norms, and further, how to distinguish the legal regimes applicable to the two aforementioned types of immunity.  The Special Rapporteur’s report helpfully highlights the areas of contention.

Many states want to maintain a broad regime of immunities and discouraged a lex ferenda approach to the topic.  Germany, however, reiterated that immunity does not mean impunity, because states can always waive immunity, prosecute under their own national laws, or defer to international criminal jurisdiction.

For those following this topic, a few useful background notes are available here and here.  The ILC will begin producing draft articles for debate, and we can expect this will be a hot topic in the years to come.

Canadian Council International Law Meeting

by Kristen Boon

The annual CCIL conference in Ottawa is just around the corner.   The program this year is fantastic (as always).  Here is an overview from Prof. Fannie Lafontaine, one of the co-chairs:

From the financial turmoil in Europe and the environmental disasters in Haiti and Japan to the surge for democracy in the Middle East and the resulting civil strife, international relations move from crisis to crisis. The theme of this year’s Canadian Council of International Law (CCIL) Conference, « International Law in Times of Crisis and Emergency », will allow participants to consider the effectiveness of international law as well as its failures in these contexts.  It all begins on Thursday 8 November with a pre-Conference Workshop on ‘Litigation Before International Tribunals’ with six speakers coming from different fields of international law, from trade law to international criminal law. The Conference then begins with a student fair and workshop and the Keynote speech by David Malone, President of the International Development Research Council (IDRC) entitled ‘The United Nations Security Council : Boom or Bust ? », followed by a reception hosted by the Canadian Legal Adviser.

Friday 9 November opens in force with an opening plenary with renowned international law expert Philippe Sands, QC, of University College London. The day presents 15 different panels covering a wide variety of topics within the broad theme of ‘crisis’, from terrorism to the role of international organizations to migration issues to the Responsibility to Protect doctrine to aboriginal issues to the regulation of armed violence to environmental questions to criminal law to food security. And we are not telling you all of it! Friday also offers two thrilling plenary speeches, a first from François Crépeau, UN Special Rapporteur on the Human Rights of Migrants, on the necessity of reconceptualising migration policies an a second one from Jennifer Hillman of Cassidy Levy Kent, a former WTO Appellate Body Member. The night’s famous banquet held in the strikingly beautiful Grand Hall of the Canadian Museum of Civilization will also present Keynote Speaker D.A. Bellemare, MSM, c.r./QC, Ad.E., former Chief Prosecutor of the Special Tribunal for Lebanon and former Commissioner, United Nations International Independent Investigation Commission (UNIIIC). Saturday 10 November is just as rich and exciting, with 11 panels covering issues as varied as conflict resolution and justice, international arbitration, multinational enterprises, health care in war zones, the rules governing financial crises, development and humanitarian assistance and extraterritorial jurisdiction. Saturday also presents a stimulating plenary panel on the Security Council with David Malone and Rohan Mukherjee from Princeton University

The full program and details for registration are available here.  The Conference Co-chairs are Fannie Lafontaine (Laval University)  and Rodney Neufeld (DFAIT).  CCIL Vice-president (Annual Conference) is Robert Brookfield (DFAIT).

In the Eye of the Storm: Developments in International Disaster Law

by Kristen Boon

For those of us in the direct line of Hurricane Sandy, it seems appropriate to highlight recent developments in international disaster law.

Many of the legal challenges arising from natural disasters involve practical issues such as obtaining visas, removing bureaucratic barriers to financial aid and ensuring that foreign actors offering assistance comply with local laws.

However, natural disasters also raise a number of bigger questions:

  • Should the responsibility to protect apply to natural disasters?
  • Do states have a duty to accept help following natural disasters?
  • How will the obligations to protect citizens affect our understanding of sovereignty?

The International Law Commission (ILC) has been studying the Protection of Persons in Natural Disasters since the 2004 Indian Ocean Tsunami and Hurricane Katrina.   Next week, the Sixth Committee of the UN will consider the ILC’s Fifth Report, which now includes 11 provisionally adopted articles.  The duty of cooperation, in particular, triggers sovereignty concerns, as described by the Special Rapporteur:

Seen from the larger perspective of public international law, to be legally and practically effective the duty to cooperate in the provision of disaster relief had to strike a balance between three important aspects. First, such a duty could not intrude into the sovereignty of the affected State. Second, the duty had to be imposed on assisting States as a legal obligation of conduct. Third, the duty had to be relevant and limited to disaster relief assistance, by encompassing the various specific elements that normally make up cooperation on the matter.

The International Federation of the Red Cross and Red Crescent Societies is a first mover in the field of disaster relief, focusing on state preparedness and technical assistance.  It has created comprehensive and insightful guidelines that are worth a read.

The Hague Academy of International Law has also been considering the issue of state responses to natural disasters, including the possibility of a new Hague Convention on environmental damages, which would address the private international law issues raised by post industrial disaster liability claims.

Professor Samantha Besson, Professor of Public International Law at the University of Fribourg, Switzerland, predicts the following two issues will require most attention going forward:

From the perspective of international law-making, first of all, the main issue is the fragmentation of public international law regimes depending on the kind of disasters and the agents at stake, on the one hand, and whether the concern lies in pre-, during or post-disaster measures, on the other. Currently, the focus of international law has been much more on industrial disasters and on individual damages, on the one hand, and on post-disaster liability issues, on the other. It is time to work more on natural disasters, on their collective dimension and on pre-disaster measures.

The second important issue relates to international institutions. Almost all difficulties currently confronting international law pertaining to disaster have an institutional component. It is important to face it openly as a result, as institutions allow the identification and allocation of duties and responsibilities among states and other international agents.

This is clearly a timely issue.  With climate change, some expect that significant natural disasters are likely to occur more frequently.  Although a consensus has yet to emerge as to how best to address this internationally, policy makers can draw on a lot of “lessons learned” from tragedies including the earthquake in Haiti, the countries affected by the Indian Ocean Tsunami, and Hurricane Katrina.

Do readers think this is an area that is calling out for more international attention?


The Haiti Cholera Case against the UN

by Kristen Boon

Two years ago this month, an unprecedented cholera outbreak in Haiti left more than 7,500 Haitians dead.   As the New York Times reported in a front page article in May 2012, “Lightning fast and virulent, it spread from here through every Haitian state, erupting into the world’s largest cholera epidemic despite a huge international mobilization still dealing with the effects of the Jan. 12, 2010, earthquake….  Epidemiologic and microbiologic evidence strongly suggests that United Nations peacekeeping troops from Nepal imported cholera to Haiti, contaminated the river tributary next to their base through a faulty sanitation system and caused a second disaster.”  A BBC report from earlier this week indicates that the cholera epidemic continues.

A year ago, a Boston based group called the  Institute for Justice and Democracy in Haiti (IJDH) filed a trail blazing class action against the UN on behalf of over 5,000 plaintiffs.  The petition asks for compensation for the victims ($50,000 for injured and $100,000 for deceased), better water sanitation, and a public acknowledgement of responsibility.  IJDH alleges that the cholera outbreak is a violation of Haitian law and certain international obligations, such as the right to life.

IJDH filed the complaint under a standard clause in the Status of Forces Agreement (SOFA), signed by the UN and Haiti, that provides for a third party claims procedure before a standing claims commission for disputes of a private-law character.  No such commission has been established in Haiti, nor, it appears, anywhere despite a 1996 decision by the Secretary General that the standard provision should be retained so that the UN does not act as its own judge.  To date, according to the lawyers, the UN acknowledged receipt of the claim, but it has not responded on the substance.   Moreover, there is very little information available on the procedure through which the UN considers such claims internally.  The IJDH lawyers, understandably, have expressed dismay by the lack of transparency with which the case is being assessed.  Indeed, the UN’s handling of this high profile claim stands in stark contrast to its stated position on the rule of law and procedural regularly in other contexts.

The UN’s delay may be attributable to a few factors…

The Death Penalty and Evolving Norms of Customary International Law

by Kristen Boon

In his August 9, 2012 report, the Special Rapporteur on Torture, Juan Mendez, makes the claim that there is an emerging norm that the death penalty constitutes cruel and unusual punishment.  Mendez acknowledges that international law does not prohibit the death penalty, but notes it does encourage its elimination.  Specifically, his report states:  ”there is an evolving standard whereby states and judiciaries consider the death penalty to be a violation per se of the prohibition of torture or cruel and degrading treatment.”

Not surprisingly, this claim caused quite a stir at yesterday’s (October 23) Third Committee meetings.  Many countries (Singapore, United States, Egypt, amongst others) used their time to push back on this claim.

Nonetheless, Mendez argued that those countries that did not participate in the emergence of the norms were free to reject them. In other words, persistent objectors to a customary international law norm are not bound by it.

In parallel, the ILC is reconsidering the formation and evidence of Customary International Law. The Death Penalty might be a relevant test case. What do Opinio Juris readers think?

Controversy at the Security Council: Children and Armed Conflict

by Kristen Boon

Children and armed conflict or “CAAC” (as the unharmonious acronym goes), has become a controversial area of activity for the UN Security Council.   Although the Security Council has adopted a series of important resolutions on the topic since 2005, its most recent foray into the fray led to four abstentions to Resolution 2068.   Azerbaijan, China, Pakistan and Russia declined to support the resolution, which largely repeated the language of prior resolutions.

Why the controversy?  Lurking behind attempts to address the induction of children into armed conflict situations are two important legal questions.

First, some query whether the definition of “armed conflict” established by the Geneva Conventions and Additional Protocols is met in the circumstances being investigated by the Special Rapporteur.  Specifically, some of the situations included in the SRSG’s reports force the issue of what status non-state actors should have under IHL, and particularly whether non-state actors can control territory.  In addition, its not clear whether the situations under investigation constitute sustained hostilities.  The Legal Opinion published in the UN Juridical Yearbook (2009) highlights this controversy.

Second, some countries are concerned that the Security Council is engaging in “mission creep” by considering situations in countries that are not otherwise on its agenda. The Security Council addresses CAAC listed on Annex 2 created under SC Resolution 1882. Most of these countries are not, however, part of the “situations” the Security Council has jurisdiction over pursuant to the usual Chapter VII procedure.  As a result, those suspicious of an activist Security Council assert situations are arriving on the Security Council’s agenda through a back door.

The biggest victims of the controversy are children.  The persistence of sexual assaults, attacks on schools and hospitals, and recruitment of children into armies is serious.   A number of countries have signed “action plans” with the UN to implement the principles in a concrete way.   The ICC’s Lubanga judgment of August 2012 reinforced this effort – convicting him of conscription and enlistment of children under 15 for use in active hostilities.   Similarly, the decision of the Special Court for Sierra Leone Tribunal in Taylor creates a strong legal framework to prosecute crimes against children.  The feisty new Special Rapporteur Zarrougi is not holding her punches.  She was to the point in her August 2012 report, and in her presentation to the Security Council in September.

Want to keep up to speed on this important issue?  Download this impressive new app developed by the Watchlist on Children and Armed Conflict and Liechtenstein’s mission to the UN, which collates key documents and policy questions on the issue.

ILC Adopts Articles on the Responsibility of International Organizations

by Kristen Boon

The International Law Commission (ILC) has adopted the Draft Articles on the Responsibility of International Organizations (RIO). The final version of the articles is available on the ILC’s website. As the Chairman of the Drafting Committee noted, the adoption of these articles marks a historic occasion as the ILC has been working on the law of responsibility for over 60 years.The ILC is expected to adopt the commentaries to the Articles in August, 2011. Both the text and commentaries will be sent to the GA in October 2011 for action.

Skeptics of the ILC’s project will quickly see that the final version of the RIO articles is similar to the version released after the ILC’s first reading in 2010. Indeed, the structure, coverage and ultimately the implications of the Draft Articles remain largely unchanged. For an analysis of the criticisms and the implications of the Draft Articles, see my YJIL on-line article here.

The ILC’s decision to stay the course will no doubt be of concern to the many IOs that have expressed displeasure with earlier versions of the Articles. At this juncture, IOs are left with few options: (i) they could contract around the draft articles and take advantage of the provision on lex specialis, allowing their rules to take precedence over the residual rules of responsibility; (ii) they might make use of the many critical IO comments submitted to the ILC to argue that the Articles are not binding (as customary law), or (iii) they could try to lobby States to speak out against the Draft Articles before they get to the GA. If a treaty were being proposed, IOs might have been able to control the application of the Articles by proposing a special sign-on process, as they did with the Treaty on Privileges and Immunities of 1946. As it stands now, no treaty is on the books, and hence no such option is available to them.

For those who have been following the maturation of the Draft Articles, there are some developments of note in this final version. First, the Articles now include this definition of organ: “any person or entity which has that status in accordance with the rules of the organization.”   The definition of Agent changed slightly, and now reads: “an official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts.” This more expansive definition brings it in line with the approach of the ICJ in the Advisory Opinion on Reparation for Injuries. Second, a new Article 5 establishes that “the characterization of an act of an international organization as internationally wrongful is governed by international law.” This provision was added to clarify that international law determines whether an act of an IO is wrongful or not. Prior versions were ambiguous as to the role of the “rules of the organization” in determining wrongfulness. Article 17 has been restructured.  This interesting article lays the basis for responsibility of IOs that either adopt binding decisions or non-binding authorizations on member states or other IOs.  The inclusion of “authorizations” is significant, as it shows how states that operate through IOs may become indirectly responsible for the acts of an IO. Finally, more detailed criteria have been added to the countermeasures regime in Articles 22 and 52, 53 & 57.

The implications of the Draft Articles are not to be underestimated.  They will affect states operating through IOs, as well as IOs directly.  Although they don’t create a forum to sue IOs, or even a way to work around the extensive privileges and immunities of IOs, they do set new baselines with regards to the consequences of wrongful actions, including the rules of attribution and the standard for reparations (“full” reparations in the words of the Draft Articles). Like the State Responsibility articles before them however, only states and IO have the right of invocation under Article 43. The extension of responsibility to IOs might be seen as a step in the right direction in the broader movement of “accountability”, but the fact that individuals are subordinated to a system limited to states and IOs dates (and limits) them considerably.

UN Releases Comments on Draft Articles on Responsibility of International Organizations

by Kristen Boon

The UN has just released its comments on the ILC’s set of 66 Articles on the Responsibility of International Organizations (“RIO”) as document  A/CN.4/637/Add.1 (available on the ILC website). The commentary is interesting both for what it says and what it doesn’t say. It should be noted that the comments take a more conciliatory view of the ILC’s enterprise than a number of other IOs who suggested the project should be abandoned. In certain cases, the UN even endorses the inclusion of a rule despite concerns about its implications in practice. (Eg, Art. 20 on Self-Defense).

Points of note include the UN’s detailed discussion of peacekeeping operations, in which they distinguish between command and control and UN authorized peacekeeping. According to UN practice, the UN assumes responsibility for the former, but not for the latter. The ECtHR’s failure to recognize this distinction led to the much criticized Behrami and Saramati decision. The UN’s commentary helpfully elucidates the potential application of Articles 5 & 6 of the Draft Articles (on attribution and effective control) going forward. Interestingly, it also shows that the UN’s application of effective control is broader than that proposed by the ILC, in that the UN notes it continues to assumes responsibility for peacekeeping missions under its command and control even after it has lost effective control.

The UN comments echo two common complaints about the ILC’s attempt to progressively develop the law relating to the responsibility of international organizations: limited practice, and the principle of speciality. In particular, the UN notes that IOs are not created alike, and the scope of their personality is a function of their specific mandates. As a result, the UN suggests that the recognition of lex specialis does not go far enough in recognizing the diversity of IOs.

The UN does not hold its punches on certain proposed articles. For example, it criticizes the current definition of “agent”, noting that the UN could be held responsible for an unjustifiably broad range of acts. It also notes how the pervasive references to “internal” rules need to be clarified. In addition, the UN suggests the ILC reconsider or even drop Articles 14 and 15, which address indirect liability from directing and controlling, or coercing another IO or State. The UN pushes back on Article 16, which would assign responsibility to an IO that authorizes members or IOs to commit an act that would be internationally wrongful if taken by the IO itself.

The UN’s commentary also interesting for what it doesn’t say. For example, Articles 40, 41 & 48 set out an aggravated responsibility regime applicable to breaches of peremptory norms.  These articles (common to RIO and the state responsibility articles) authorize IOs and states other than those injured, to invoke the principles of responsibility where erga omnes obligations are concerned. The State Responsibility commentary on the parallel provisions give as examples acts of aggression, apartheid, and genocide. Given the obvious overlap between these crimes and the Security Council’s jurisdiction, the UN’s silence on these articles is curious. Indeed, the aggravated responsibility regime is an area where primary norms have leaked into the secondary rules of responsibility, in that they prioritize community interests like peace. Moreover, these articles could legitimize non-institutional reactions to violations of certain international obligations, which might side-line an inactive Security Council.

A second provision that passed without much comment is Article 66. This provides that “the articles on responsibility operate without prejudice to the Charter of the United Nations.” The UN took a curiously technical approach to this article, simply reacting to the ILC’s commentary with regards to a reference to Article 103, and urging consistency on phrasing in the parallel article on State responsibility. What the UN does not acknowledge explicitly however, is that the interplay between the UN Charter and the rules of responsibility are likely to be significant going forward. Not only has the Security Council invoked principles of responsibility on a number of occasions (e.g. finding Iraqi responsible for the invasion of Kuwait and requiring it pay for damages), but states may use the law of responsibility as well, by for example,  invoking excuses like necessity before UN organs. Despite the ILC’s efforts to insulate the law of collective from the effects of the law of responsibility therefore, and we can anticipate considerable interplay going forward.