Symposia

Emerging Voices: “Do No Harm” and The Development of General Corporate Human Rights Obligations

[Gabriel Armas-Cardona received his J.D. from New York University and was a legal officer at Lawyers Collective in New Delhi, India where he managed the Global Health and Human Rights Database.] Human rights activists have long complained of legal lacunae in domestic and international law over the regulation of corporations. This is why last year’s United Nations Human Rights Council resolution to elaborate binding obligations on corporations was cheered by activists (and derided by business). The UN’s previous attempt to develop a general framework of responsibilities in the 2011 Guiding Principles on Business and Human Rights did not impose binding obligations, likely one of the reasons it was generally praised by corporations. Corporate behavior is primarily regulated through two domestic legal systems: tort and a corporate regulatory regime. The first is the traditional remedy system for individuals while the latter is the State impositions on business to promote a social good. In well-regulated States, these two distinct systems have grown to more effectively protect that society. But many developing countries don’t have legal systems in place that effectively protect their society and almost no State regulates corporate action abroad for the protection of other societies. The value of binding legal obligations is that they can remove the lacunae by having universal and consistent obligations for all corporations within States and in the interstitial space between jurisdictions. These obligations would be distinct from and would not dilute State human rights obligations. Having multiple dutybearers, even qualitatively different ones, is not problematic. Corporate obligations would positively interplay with States’ duty to protect to further realize human rights. When a violation by a corporation occurs, it would be the State’s duty to provide a remedy system, stemming from a State’s duty to protect, and the corporation’s duty to cooperate with that system, stemming from the secondary duties mentioned in the duty to fulfill, or to directly provide reparations to the victim (in normal parlance: go to court or settle). If the corporation cannot provide reparations (e.g. due to bankruptcy), then the State would have to provide reparations directly. Either way, the victim is made whole. Underlying the challenge is that there currently is no principled framework for universally applicable corporate obligations. One can’t simply copy State obligations and apply them to corporations; their obligations must reflect that they are private actors. The Guiding Principles state that corporations “should avoid infringing on the human rights of others” (Principle 11), or as the Special Representative of the Secretary-General that wrote the Guiding Principles said, the responsibility of a corporation is “put simply, to do no harm.” The principle of “do no harm” has been used as a touchstone in corporate human rights obligations since at least 2002 and is a surprisingly suitable standard for developing a structure for general obligations. As dutybearers, the same tripartite typology of human rights can apply to corporations as States; i.e., a human right would impose duties on corporations to respect, protect and fulfill. The Shue/Eide typology recognizes that the realization of rights can require measures of varying degrees of activity by dutybearers. Corporations can violate rights as producers, industry players, or employers; thus, depending on the situation, corporations may be required to stop selling defective goods, protect victims from violations done by the corporation’s supply chain or provide reparations for a prior harm. The majority of obligations falls within the duty to respect, but the duties to protect and fulfill provide new and interesting duties that respond to the concerns of corporate violations. To understand what substantive obligations arise from “do no harm,” it helps to use the example of a particular right, such as the right to health. As economic entities, corporations are able to directly infringe on the realization of economic, social, and cultural (ESC) rights. The right to health is one of the most developed and broadest ESC rights, making it useful to use here. The content of corporate obligations vis-à-vis the right to health

Emerging Voices: Is the International Community Ready for a “Duty to End Impunity”?

[Auriane Botte is a Ph.D candidate in International Law at the University of Nottingham (UK).] One can no longer count the number of times that the objective of ending impunity for core international crimes has been crushed by more pressing political and diplomatic interests. The most recent instance was on the 15^th of June when South Africa allowed Omar al Bashir to return to Sudan despite an interim order issued by the High Court in Pretoria to prevent the Sudanese President from leaving South Africa, pending a decision on implementing an arrest warrant issued by the International Criminal Court (ICC) in 2010. This decision to favour impunity over justice is even more disgraceful since South Africa has been a State Party to the Rome Statute since 2000. As a quick reminder, Omar al Bashir is accused of indirectly participating in the commission of crimes against humanity, war crimes and genocide committed in Darfur. What happened in South Africa may, nevertheless, give a ray of hope as there was, for once, an attempt to hold Bashir accountable. Another positive aspect of this non-event is that it demonstrated the increasing power of civil society to put pressure on governments in relation to issues of impunity, with the support of the domestic courts. The situation in Darfur, Sudan has repeatedly been under the spotlight this year, as it sadly illustrated the weakening of the fight against impunity for core international crimes. Last December, the ICC Prosecutor announced in her report to the Security Council on the situation in Darfur that she decided to “hibernate” the investigation on this situation. This decision was taken following a blatant lack of cooperation from Sudan and a lack of support from the Security Council for the work of the ICC, despite the fact that the situation was initially referred to the Court by the Security Council. The ICC Prosecutor as well as the ICC Pre-Trial Chamber II recently pointed out the lack of willingness from the Security Council to play its part by imposing measures on UN Member States for their failure to comply with Resolution 1593 (2005) requesting cooperation with the ICC. This lack of cooperation with the ICC from UN Member States as well as from the Security Council demonstrates the limits of the commitment of the international community to achieve the objective of ending impunity. These two serious impediments to the objective of ending impunity in Darfur highlight a major flaw in the response to core international crimes by the international community: the absence of significant consequences for the failure to cooperate with the ICC. In other words, if a State decides not to cooperate with the ICC, it is unlikely that the State will have to face any serious consequences. The scarce provisions of the Rome Statute related to non-cooperation and the soft approach taken by the Security Council or the Assembly of States Parties on instances of non-cooperation illustrate further this flaw. In the specific situation in Sudan, an argument has been put forward, notably by the African Union, that the States Parties may justify their refusal to execute a request from the ICC to surrender Omar al Bashir by their obligation under International Law to respect the diplomatic immunity of the Head of States. This goes back to the ongoing debate of the opposing Articles 27 and 98 of the Rome Statute, raising the question whether the irrelevance of official capacity under the Rome Statute should prevail over obligations to ensure diplomatic immunity under International Law. The main issue here is that the Security Council did not explicitly waive the diplomatic immunity of the alleged perpetrators in Sudan. Nevertheless, the ICC Pre-Trial Chamber II reaffirmed that Resolution 1593 (2005) did de facto waive the immunity of Omar al Bashir. The problem of the lack of commitment to end impunity for mass crimes goes beyond the issues of non-cooperation with the ICC. It may be timely to rethink the responsibility for core international crimes by looking at the broad picture. A possible way to revive the objective of ending impunity for core international crimes may be to consider it outside the focus of individual criminal responsibility and to integrate it within a larger framework of accountability mechanisms. This may allow for developing a wider approach drawing simultaneously from International Criminal Law and State responsibility norms to cover an extensive range of accountability mechanisms at the international and domestic level. International Criminal Justice may potentially benefit from the conceptualisation of a duty to end impunity lying with the States and associated with appropriate consequences for the failure to fulfil this duty. It is important to note that this obligation may not only fall upon the States. The Security Council may also have an impact on ending impunity through targeted sanctions and other accountability measures. Due to the limited length of this post, this issue will not be discussed further. A structured framework to strengthen the duty to end impunity may be inspired by

Emerging Voices: Strength and Legitimacy of Control Mechanisms in International Human Rights Treaties: The Moderation Effect

[Katarína Šipulová is a student in an MSt in Socio-Legal Research, University of Oxford and a PhD candidate at the Faculty of Social Studies, Masaryk University. Hubert Smekal is an Assistant Professor at Faculty of Social Studies, Masaryk University; and Jozef Janovský holds an MSc in Applied Statistics, University of Oxford, having previously studied politics and applied mathematics at Masaryk University. This contribution comes from research under a project entitled “International Human Rights Obligations of the Czech Republic: Trends, Practice, Causes and Consequences,” GA13-27956S, supported by the Czech Science Foundation GAČR.] The study finds that the strength of a human-rights treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties. Empirical test of the "moderation effect hypothesis" showed that the overall speed of the commitment process of communist Czechoslovakia and newer democratic regimes (CR and SR) was quite similar. However, while communist Czechoslovakia preferred commitments to treaties with weak control mechanisms, the transitioning CSFR and its democratic successors were more prone to ratify treaties with a strong control mechanism. What motivates states to ratify international human rights treaties remains an unanswered question in political science. Many tentative explanations for the observed commitment patterns have been proposed, relating e.g. to the character of the political regime of the state (Moravcsik 2000, Hafner-Burton – Tsutsui – Meyer 2008), the characteristics of a treaty and how they diverge from a country’s practice (Hathaway 2007; Cole 2005), and foreign policy goals (Goodman 2000, Heyns and Viljoen 2001), especially accession to the EU (Guzman 2008; Landman 2005). A thorough examination of practices in two post-communist countries, the Czech Republic and Slovakia, contributes to this long-standing debate on different commitments patterns (i.e. signatures and ratifications). Our in-depth comparative study is based on a set of more than 190 human rights treaties; by a “human-rights treaty” we understand any multilateral treaty which includes human-rights provisions (i.e. both predominantly human-rights treaties and treaties dealing with human rights only in parts of their provisions). These are typically treaties which originated in the Council of Europe, the United Nations and the International Labour Organization. The study covers two countries with similar foreign policy incentives as well as a common historical, political, and legal heritage. Interestingly, the political experience of the both countries has included non-democratic, semi-democratic, democratic and transitional periods. After the fall of a four-decade-long communist regime in 1989, both countries experienced a short intermezzo as a federal democratic republic (“CSFR”), which dissolved on 1 January 1993 following strong calls for national self-determination. Approximately seven decades of common history meant that the two new states shared a common starting point with regards to their international commitments and domestic legal systems. The Czech Republic set off decisively for political and economic liberal reforms in order to quickly integrate into Western international structures and it very soon acquired a reputation of the front-runner among post-communist countries. On the other hand, between 1993 and 1998, Slovakia, under the government of Prime Minister Vladimír Mečiar, slowly moved towards a semi-authoritarian system, characterised by restrictions of political rights, censorship in the media, and economic scandals. At the end of 1998, Mečiar’s government fell due to worsening economic problems and foreign-policy failures (pre-accession talks with the EU and NATO were particularly unsuccessful). After 1998, Slovakia caught up with the other CEE candidate countries and fully reoriented its efforts towards integration into Western structures. In December 2002, both states successfully concluded their pre-accession negotiations with the EU and subsequently acceded on 1 May 2004. In this study, we do not break out the period of Mečiar’s government for methodological reasons: its character and position on the democratic – non-democratic axis remains disputable (see Janos 2000, Kitschelt 1999, or Linz and Stepan 1996). However, the political developments are taken into account when interpreting the data. Experience with different political regimes adds data variability and enables us to focus on the relationship between the character of the regime and state’s commitment activity wherever possible. Academic literature includes regime type among the most important variables influencing the decision to commit. Several authors have pointed out that non-democratic countries with poor human rights records tend to ratify treaties at a higher rate and speed (Hathaway 2002), in order to demonstrate a low-cost legitimizing symbolic commitment without any actual willingness to comply (Hafner-Burton – Tsutsui – Meyer 2008). Moreover, this commitment might be further distorted either by the use of reservations (Neumayer 2007) or a control mechanism too weak to be seen as a credible threat (Dutton 2013). Control mechanisms adopted in human-rights treaties (i.e. their strength) differ profoundly: from no control, through an obligation to submit internal reports, to subordination to the jurisdiction of a judicial body. In this short contribution, we focus on the influence of the control mechanism on commitment patterns. Our distinct argument, that the strength of a treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties, is then tested on the Czech and Slovak experience. Empirical Study Figure 1 mirrors our expectations regarding the frequency and the speed of human rights commitments of the Czech Republic and Slovakia under different political regimes. Based on the above-mentioned theories, we would expect non-democratic communist Czechoslovakia to commit to few human rights treaties, and primarily to those with a weak control mechanism (i.e. with no actual control or limited to domestic reports). However, the process of these commitments should be rather fast, because of the limited need for deliberation. On the other hand, we expect the post-1989 Federal Republic to be strongly human-rights oriented, committing frequently and fast in order to boost its international credentials and spur the proverbial return to (Western) Europe. After the consolidation of new democracies, we expect the speed of ratifications to slow down. Figure 1: Theoretical expectations (Source: authors)

	Regime	Commitment pattern(expected frequency and speed of commitments)
Communist Czechoslovakia (1948-1989)	Non-Dem	Low commitment activity; medium-fast processHigher for treaties with a weak control mechanism compared to democracies
Federal Republic (1990-1992)	Dem	High + fast for all treaties
Czech Republic (1993 →)	Dem	Medium + slow for all treaties
Slovak Republic (1993 →)	Dem*	Medium + slow for all treaties

The overall human rights commitment activity of Czechoslovakia and its successors is presented in Figure 2. The graph shows the cumulative number

Emerging Voices: Victim Participation in ICC and ECCC’s Proceedings

[Mélanie Vianney-Liaud is a PhD Candidate at the Aix-Marseille University, III, France.] At the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), victims are granted procedural rights to participate in their personal capacity. However, in both courts, victim participation is challenging since mass crimes make thousands of victims. The crimes perpetrated during the Khmer Rouge regime...

Emerging Voices: The Weakness of the “Super-Constitutional” Euro

[Francesco Montanaro is a dual PhD candidate at Bocconi University (Milan) and Pantéon-Assas University (Paris).] Saving the Euro at any cost. This imperative drove the EU and EU Member States’ response to the sovereign debt crisis. Following an incremental pattern, they adopted a number of measures that culminated in the conclusion of the European Stability Mechanism (ESM) Treaty and in the adoption...

Emerging Voices: The International Olympic Committee’s Accountability for Human Rights – Learning From the World Bank

[Ryan Gauthier is a PhD Candidate at the Erasmus University Rotterdam.] Mo’ Sporting Events, Mo’ Problems In June, the 2015 European Olympic Games took place in Baku, Azerbaijan. Did you watch? You might not have even been aware of them! This first edition of the European Olympic Games is a symbol of the growing number of sports mega-events, joining the Olympic Games, the Fédération Intenationale de Football Association (‘FIFA’) World Cup, and others, on an ever-crowded sporting calendar. However, all is not positive. Just before the 2015 Games began, the Netherlands declined to host the 2019 edition of the European Olympic Games, citing the almost €60 million price tag as too much. Sports mega-events have expanded not only in number, but also in geographic scope. Baku 2015 is an example of sports mega-events being held in developing countries. The BRICS (Brazil, Russia, India, China, and South Africa), and countries such as Argentina and Qatar have hosted the world’s premier sports mega-events (Olympic Games, FIFA World Cup, Commonwealth Games) since 2008. Unfortunately for the citizens of these countries, these events have also been prime examples of the worst problems caused by sports mega-events. Families have been evicted from their homes (sometimes forcibly), ecologically sensitive areas have lost their protected status so that infrastructure such as ski runs or golf courses can be constructed, labour rights abuses have run rampant on infrastructure projects, and civil dissent has been quashed. To add insult to injury, the same old negative legacies of ‘white elephants’, such as unused or half-empty stadiums, deserted parks, unused hotel rooms, and public debt have reared their head.   My PhD research focuses on the accountability of international sporting organisations for the worst outcomes of their events. What I hope to do with this blog post is outline one aspect of accountability, the use of a monitoring mechanism. I will outline the problem of an absent state and a weak mandate. I will then discuss a comparison with the World Bank, and lessons that might be learned by international sporting organisations. Where Does the Buck Stop? Many organisations are involved in putting on a sports mega-event. As a start, international sporting organisations such as the IOC and FIFA hold the intellectual property rights to the event. However, these organisations do not directly engage in preparations for the event, but instead provide varying levels of financial and logistical support. The actual preparation is carried out by a local organising committee (which may be public or private), who hires contractors for construction, and so forth. The state government also supports the preparations. When things go wrong, no party is held to account. This is due in part to the multiplicity of organisations involved, creating a ‘problem of many hands’. This situation is exacerbated because the state, the one organisation which is expected to provide a backstop to guarantee that its citizens are not harmed, is often unwilling or unable to hold anyone else to account. In some cases, particularly in regards to the eviction of individuals, and allowing construction in environmentally-sensitive areas, the government is actually complicit in the harm. Thus, with an absent state, my research examines how the international sporting organisations should be accountable, and should hold others to account, for the harms caused by hosting their sports mega-events. Baby Steps As part of its response to this situation,

Emerging Voices: The Role of Attribution Rules Under the Law of State Responsibility in Classifying Situations of Armed Conflict

[Remy Jorritsma (LL.M.) is a lecturer in public international law at the Department of International and European Law of Maastricht University. In September 2015 he will join the Max Planck Institute Luxembourg as a Research Fellow/PhD candidate. Contact at r.jorritsma@maastrichtuniversity.nl.] Armed conflicts involving e.g. Ukraine/Russia, Israel/Palestine, and the self-proclaimed Islamic State demonstrate legal ambiguities with regard to State responsibility as a...

Emerging Voices: The Law of the Sea as a Tool for Stability and Progress in the Eastern Mediterranean Sea

[Nikolaos A. Ioannidis is a PhD candidate in Public International Law (University of Bristol).] On the verge of the 21st century, the discovery of “Noa”, a gas field offshore Israel, reinvigorated the Eastern Mediterranean (East Med) states’ interest in the sea. Additional hydrocarbon deposits were found in the sea waters adjacent to Israel, Gaza, Cyprus and Egypt, while the United States Geological Survey estimated that the Levant Basin alone contains 1.7 million barrels of oil and 122 trillion cubic feet of natural gas. These developments made the regional states realize that, in order to avail themselves of the immense underwater wealth, they should first demarcate their maritime space in conformity with the law of the sea rules. This post analyses the maritime boundary delimitation agreements concluded so far in the East Med. It should be pointed out that these are the first EEZ delimitation agreements to have been signed in the Mediterranean Sea. Perhaps the most noteworthy features of these arrangements is the use of the median line and the adherence of Israel to the 1982 Law of the Sea Convention (LOSC or the Convention) rules on the EEZ and maritime delimitation, despite the fact that it is not a state-party to the Convention. In particular, four East Med states proceeded with the conclusion of bilateral maritime boundary delimitation agreements; the first delimitation agreement between Egypt and Cyprus in 2003 was followed by another two between Lebanon-Cyprus in 2007 (pending ratification by Lebanon); and Israel-Cyprus in 2010. All three agreements are concise and comprise five virtually identical articles each. Undoubtedly, maritime boundary delimitation is a pivotal function within the realm of the law of the sea. As the Arbitral Tribunal in the Bangladesh/India Award stressed:

“The importance of stable and definitive maritime boundaries is all the more essential when the exploration and exploitation of the resources of the continental shelf are at stake… the sovereign rights of coastal States, and therefore the maritime boundaries between them, must be determined with precision to allow for development and investment (emphasis added).”

Even though the East Med states maintain variant positions on maritime affairs, they have perceived the utility of the law of the sea apparatus in facilitating hydrocarbon exploration and exploitation, hence they decided to act within its ambit and collaborate with a view to gaining multiple profits from the energy windfall. Legal analysis of the agreements In the Preambles of these instruments, the contracting parties set forth the desire for cooperation, note the importance of EEZ delimitation “for the purpose of development” and recall the relevant LOSC provisions. The invocation of the LOSC in the Israeli-Cypriot agreement is of utmost significance as it not only illustrates the universal application of the Convention, but, most importantly, highlights the willingness of Israel to act in conformity with the LOSC, despite not being a party to the Convention, at least in terms of the provisions relevant to the EEZ. In any event, the EEZ concept forms part and parcel of customary international law, thus, even non-member states to the Convention are entitled to use and are obliged to observe the relevant rules [Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep. 18, para. 100; Delimitation of the Maritime Boundary in the Gulf of Maine Area [1984] ICJ Rep. 246, para. 94; Continental Shelf (Libyan Arab Jamahiriyia/Malta) (Judgment) [1985] ICJ Rep. 13, para. 34]. Perforce Article 1(a) of each agreement, the maritime limit between the contracting states is the median line, namely a line “every point of which is equidistant from the nearest points on the baselines of the two Parties” (Article 15 LOSC). The mutual acceptance and use of the median line evinces the establishment of a regional practice in the East Med favouring this method, contrary to the efforts of Turkey, which has diachronically been rejecting the median line/equidistance principle; instead, Turkey has been advocating the vague equitable principles/relevant circumstances method, which provides that all relevant factors should be considered so as to reach an equitable result. Paragraphs b-d of Article 1 address the definition of the coordinates of the maritime boundaries. Furthermore,

Emerging Voices: What’s in a Mandate? Protecting Civilians in South Sudan

[Bart L. Smit Duijzentkunst recently received his PhD in international law from the University of Cambridge. He will be teaching international law at the Fletcher School of Law and Diplomacy, Tufts University, in the 2015 fall semester.] When, in December 2013, the United Nations Mission in South Sudan (UNMISS) opened its gates to thousands of civilians fleeing violence in the wake of an alleged coup, it also opened a new chapter on the UN’s commitment to the protection of civilians. Two decades earlier UN troops had received vague orders to protect “safe areas” in Bosnia and Rwanda—with disastrous consequences. Today UNMISS is explicitly authorised to use “all necessary means” to protect civilians. Yet while the language of UN mandates has evolved, so have developments on the ground. UN policy-makers originally envisioned protection of civilians measures as short-term, localised interventions to ensure the physical safety of persons in acute emergency situations. In South Sudan, however, 18 months after the outbreak of hostilities almost 140,000 people continue to reside in so-called “protection of civilians sites” across the country. As a result, UNMISS peacekeepers are not simply called upon to protect against external threats, but also to maintain public safety and security within protection of civilians sites. But does their mandate cover these activities? This post briefly discusses the evolution of peacekeeping mandates before offering some reflections on UNMISS’ authority. Protection of civilians mandates emerged in UN Security Council practice on the eve of the new millennium. In “traditional” mandates, the protection of civilians had been an afterthought, the fortuitous consequence of other peacekeeping objectives. For example, the mandate of UNPROFOR, operating in the Balkans in the mid 1990s, merely called upon the mission to deter attacks on so-called “safe areas”, to monitor cease-fires and to promote the withdrawal of military and paramilitary units from these areas. UNPROFOR could only take “all necessary measures”, including the use of force, in self-defence. Similarly, when UNAMIR in Rwanda was authorised to establish “secure humanitarian areas” in 1994, the UN Security Council recognised that the mission might be required to take action in self-defence to protect the areas, but did not explicitly authorise it to use force to do so. Propelled by the failures in Bosnia and Rwanda, and encouraged by the emerging idea that the international community held a “responsibility to protect” vulnerable populations, in 1999 the UN Security Council started to explore the protection of civilians as an objective of peacekeeping. It began passing dedicated resolutions and included protection of civilians clauses in operational mandates. These “robust” mandates reflect a recognition by the Security Council that impartiality of UN peacekeeping operations “is not the same as neutrality or equal treatment of all parties in all cases for all time” and that in certain circumstances “peacekeepers may not only be operationally justified in using force but morally compelled to do so.” In the same year, the UN Security Council vested certain missions with far-reaching administrative powers. UNMIK in Kosovo and UNTAET in East Timor were tasked to provide administrative functions while developing domestic institutions. In line with their “executive” mandates, these missions were empowered to draft local laws, implement domestic policies and administer justice, including arresting and sentencing alleged criminals, until these powers were transferred to local governments (in 2008 and 2002 respectively). With these differences between traditional, robust and executive mandates in mind, let’s return to the situation of UNMISS. Following South Sudan’s independence on 9 July 2011, UNMISS’ initial mandate focussed on state-building and conflict resolution efforts; the protection of civilians was buried deep in its sub-clauses. These political ambitions went up in flames with the outbreak of violence on 15 December 2013, when an alleged coup triggered a civil war between Government forces, led by President Salva Kiir, and the Sudan People’s Liberation Movement/Army – In Opposition (SPLM/A-IO), headed by former vice-President Riek Machar. In light of the persistent fighting and the massive influx of internally displaced persons and refugees onto UNMISS premises, the UN Security Council revised UNMISS’ mandate in November 2014 to make the protection of civilians its top priority. The new, robust mandate removes references to “imminent” threats, simply authorising UNMISS to “use all necessary means” to “protect civilians under threat of physical violence, irrespective of the source of such violence”. While housing, food and sanitation are principally provided by humanitarian organisations, UNMISS is in charge of “maintain[ing] public safety and security within and of UNMISS protection of civilians sites”. This is not the first time that the UN has provided shelter to civilians on its premises: from East Timor to Palestine, over the last decades civilians have flocked to UN bases in the face of violence. The UN has developed various policies to deal with these situations, which range from setting out general principles to providing specific guidelines on civilians seeking protection at UNMISS sites (the latter drafted prior to December 2013). All these documents stress the exceptional and temporary nature of these measures: they speak of protection in terms of hours or days, not weeks or months. Yet as the conflict in South Sudan persists and peace remains elusive, what might have seemed a temporary measure at first has turned into a prolonged situation with few prospects of resolution.

Emerging Voices: Powers of the Security Council to Make Determinations Under Article 39 of the Charter in Case of Cyber Operations

[Janos Ferencz, LL.M., is a Visiting Research Fellow at The Minerva Center for the Rule of Law under Extreme Conditions at the Faculty of Law and Department of Geography and Environmental Studies, University of Haifa and a Legal consultant at Panteia, the Netherlands.] The rapid proliferation of malicious cyber operations in recent years has underlined a growing concern about the risks presented by cyber space to international peace and security. The UN General Assembly noted in Resolution 69/28 (2014) the increasing concerns about the use of information technologies “for purposes that are inconsistent with the objectives of maintaining international stability and security” (UN Doc. A/Res/69/28, 2 December 2014, preambular para. 9). The importance of understanding when cyber operations represent a threat to international peace and security lies in the Security Council’s Chapter VII powers. Under Article 39 of the Charter, its powers to adopt non-forceful and forceful measures can only be activated once there is a determination that a cyber operation is a “threat to the peace, breach of the peace, or act of aggression.” The academia has paid only limited attention so far to analysing the conditions under which cyber operations can reach this level. This post aims to fill this gap by assessing whether, and if so, under what conditions can cyber operations trigger the applicability of Article 39 of the Charter. Cyber operations and the threshold of Article 39 A cyber operation must be understood as a broad concept, incorporating “the employment of cyber capabilities with the primary purpose of achieving objectives in or by the use of cyberspace” (Tallinn Manual, para. 2, p. 15). The Tallinn Manual experts unanimously agreed that the Security Council possesses the authority to determine that a cyber operation constitutes a threat to the peace, breach of the peace, or act of aggression (Tallinn Manual, Rule 18). The question remains, however, what are the prerequisite circumstances for such an operation to attain the level of gravity required by Article 39? A breach of the peace is generally characterized by armed hostilities between States, while an act of aggression manifests through the direct or indirect use of force. The concept of “threat to the peace” is the broadest and most frequently used one by the Security Council. From a cyber perspective, the two former scenarios, although theoretically possible, remain less likely to occur in practice since the Security Council has yet to make a determination that an event amounted to an act of aggression, and only a handful of situations were found to have breached the peace (e.g. the invasion of South Korea or Kuwait). For this reason (and taking into account also spatial limitations) this post focuses on the circumstances qualifying cyber operations as a threat to international peace and security. The Security Council has broad discretion under Article 39 to conclude that any kind of conduct or situation amounts to a threat to international peace. Finding the lowest common denominator across the Council’s past practice falls beyond the scope of this post but suffice it to say that a “threat to the peace” is deemed a political concept (Tadić Decision on Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 29) that builds on the Council’s interpretation of the concept of “peace”. Although the early practice of the Council has shown a narrow interpretation of this concept, viewing “peace” as the absence of use of force between States (J. Frowein, ‘Article 39’ in B. Simma (ed.) The Charter of the United Nations: A Commentary (2^nd edn., OUP, 2002), at p. 720), the recent practice of the Council indicates its willingness to broaden that interpretation. This is best evidenced by the Council’s acknowledgement that the HIV/AIDS pandemic can pose a security threat (SC Res. 1308, 17 July 2000) as well as the determination on the existence of a threat to international peace and security in West-Africa due to the outbreak of Ebola (SC Res. 2177, 18 September 2014). Nonetheless, the Council has always been careful to consider the impact of an internal situation upon regional or international stability. This criterion is common across all Article 39 determinations, and entails that any event or phenomena that undermines regional or international stability by creating a risk for unrest or hostilities in the short or medium term could fall within the purview of Article 39. Thus, a cyber operation will amount to a threat to peace within the meaning of Article 39 when it creates the threat of jeopardizing regional or international stability. Cyber operations targeting the critical infrastructure of a State will likely fulfill this threshold. Similarly, the US DoD concluded that "computer network attacks that caused widespread damage, economic disruption, and loss of life could well precipitate action by the Security Council” under Article 39 (US DoD, An Assessment of International Legal Issues in Information Operations, May 1999, p. 15). The cyber operation itself need not be a violation of international law per se for it to fall within the ambit of Article 39. This raises interesting questions about the exploitation of cyberspace for the purposes of espionage, which is, in principle, not prohibited by international law. This question is particularly relevant in the aftermath of Edward Snowden’s revelations regarding the NSA’s surveillance programme in 2013. In my view, there are two main approaches to assessing cyber espionage under Article 39. Firstly, relying on the threshold set out above, cyber espionage could represent a threat to international peace and security when it creates destabilizing effects on regional or international stability to the extent that a potential risk of unrest and hostilities between States will arise. One example would be recourse to dual-use malwares that not only steal information but also produce widespread destructive or disruptive effects. However, it is unlikely that data breaches on their own would fall within the scope of Article 39 unless there is a prospect for hostilities as a result of the breaches. Furthermore, due to the threat of veto by any permanent member of the Security Council, it remains unlikely that in the near future cyber espionage incidents will be formally declared a threat to international security. The alternative approach is to

Emerging Voices: Asia Infrastructure Investment Bank and the Global Financial Order

[Tsung-Ling Lee, (S.J.D (Georgetown)), is a post-doctoral fellow at  National University of Singapore.] “…I think we screwed up.” Former U.S. Secretary of State Madeline Albright's response to the Obama administration’s refusal to join the Asia Infrastructure Investment Bank (AIIB), the China-led initiative for financing infrastructure projects from Myanmar to Russia, suggests a deep anxiety about the world financial order. While many operational aspects and details about governance structure of the AIIB are yet to be publicly expressed, many commentators speculate that the AIIB may mark a new global economic order, particularly when viewed as part of Beijing’s broader economic agenda: the creation of new regional and global economic institutions, including the New Silk Road initiative and the BRICs-led New Development Bank, institutions which arguably will challenge the monopoly of the World Bank and the IMF — the two major international financial institutions within the Bretton Wood system. The AIIB, which came into existence after China’s frustration at the slow reform process of the International Financial Institutions (IFIs), set out as its goal to finance developmental projects in Asia, with China providing the majority of capital. The IFI reform stagnates largely due to the resistance from the US Congress, refusing to support the change of the Banks’ shareholder voting system currently privileges the US. Many critics thus perceive the Bank as a channel for the first world to promote and embed neoliberal orthodoxy abroad. The AIIB initiative highlights a shifting role of the Bank in an increasingly crowded international economic landscape. Some commentators even go further and suggest that the US’s sphere of influence in the global policy domain of finance is diminishing decisively, evident by the diplomatic success of China in attracting many of the US’s key allies in joining the AIIB. This blog post analyzes the AIIB through the lens of the Third World Approaches to International Law (TWAIL). The IFIs’ Development Model Historically, TWAIL scholarship has been hostile towards IFIs, which are perceived as instrumental in protecting the interests of the first world at the expense of the third world. Critical TWAIL scholar B.S. Chimni, for instance, argues that the IFIs, as part of a growing network of international institutions, constitute a nascent global state that serves the interests of transnational capital and powerful states at the expense of third world states and peoples. Professor Makau Mutua, for example, argues that under the guise of sovereign equality, international law and institutions perpetuate existing structural inequality in furthering the interests of the first world. Despite that in theory both the IMF and the Bank are explicitly prohibited from engaging in any political affairs of its member states, in practice they have evolved from existing purely as apolitical institutions to having considerable powers in influencing economic policies of the developing countries. One notable example of the IFIs' penetrative power beyond global economic life is the Bank’s widely criticized Structural Adjustment Programs (SAPs) in the 1990s. As a condition of borrowing, countries that sought the IFIs' financial assistance were required to embark upon radical economic reform: reducing government spending, privatizing state-own enterprises, liberalizing trade and foreign investment. However, the neoliberal view embraced by the IFIs tends to neglect the specific social, economic, cultural and political contexts of the recipient state. The neglect has seen a widening of social inequalities, in addition to the apparent failure of SAPs in achieving its promised economic success. With many recipient states driven into debt, devastated by increased food and fuel prices, intensified unemployment, and crumbling of health services, the SAPs had worked in the interests of the first world, who are also the majority shareholders of the IFIs. With many recipient states worse off than they were initially, the uneven distribution of benefits and costs as consequences of the SAPs became a salient point of contention for critics of the IFIs, most vocally among TWAIL scholars. This is primarily because the IFIs reproduced the colonial experience for recipient states; they also relocate the decision-making process from recipient states to international civil servants. The latter is even more worrisome from a legal perspective, because the process occurred without an external check-and-balance, where the IFIs are hold responsible for their hegemony policies that have further disadvantaged weak states. The apparent failings of the neoliberal development model endorsed by the IFIs had seen an eruption of political discontent that prompted a sharp policy turn within the IFIs. Beginning in the 1990s, the Bank embraced a governance paradigm that relies on stable institutional environment as a foundation to equitable distribution of wealth and to remedy poverty. This had seen the IFIs engaged in law reform in many recipient countries under the rubrics of “technical assistance”. The shift to the governance model also occurred as part of the IFIs’ attempt to salvage their institutional credibility. The Bank’s focus on governance has opened a greater space for structural intervention. The Bank now embarks on reform projects with greater emphases on improving environmental sustainability, embedding the rule of law, and enhancing participation in the decision-making process. The World Bank Institute's Worldwide Governance Indicators and Doing Business, for instance, provide quantitative assessments on the openness of the regulatory environment for business. While both projects are not binding on the state, they are widely seen as authoritative, and increasingly are used as a proxy for the quality of a legal system. In the TWAIL view, the law reform projects undertaken by the Bank, which focus specifically on the ability of legal system to facilitate market transaction, further entrench a capitalist order. Problematically, for TWAIL scholars, the economic integration of market occurs without much political contestation from the affected community. Thus, not only the governance model masks the Bank’s actual reach beyond its legitimate realm of economic regulation, such reach is arguably barred under Article IV(10) of the Bank’s Article of Agreement, which explicitly prohibits the Bank from interfering in the political affairs of its member states. AIIB: Ending IFI hegemony?