In association with the International Commission of Jurists

Symposia

29 Jul

[Leslie Schildt is a criminal prosecutor at the Monroe County District Attorney's Office in Rochester, New York and previously worked in the Office of the Prosecutor at the International Criminal Court in the Hague.] Earlier this year, the United Nations created its first ever offensive combat force – the “Intervention Brigade.”  It enters the Democratic Republic of Congo (DRC) as part of MONUSCO, the long-standing United Nations peacekeeping operation in the DRC.  According to Security Council Resolution 2098, the Intervention Brigade will act unilaterally or alongside the Congolese army.  The Brigade is a creature of Chapter VII of the UN Charter, which governs peace enforcement operations.  The force will execute “robust, highly mobile ... targeted offensive operations” to find, engage, “neutralize,” and disarm the heavily armed rebel forces.  This is an unprecedentedly aggressive humanitarian combat force that arguably is the first of its kind. The Intervention Brigade raises serious questions regarding how the offensive mission might affect the non-combatant peacekeepers in MONUSCO.  To understand the potential dangers to peacekeepers and how to avoid them, one must first understand the core legal distinctions between peacekeepers and peace enforcers. UN peacekeeping operations operate under three bedrock principles: (1) Consent of the main parties, (2) impartiality, and (3) non-use of force except in self-defense and in defense of mandate.  Consent of the parties requires commitment and acceptance from the main parties to the conflict.  Without consent, “the peacekeeping operation risks becoming a party to the conflict; and being drawn towards enforcement action.”  Impartiality requires the peacekeepers’ even-handed treatment of all parties to the conflict, but not neutrality in execution of their mandate.  Indeed, where one party commits blatant violations, “continued equal treatment of all parties by the United Nations can in the best case result in ineffectiveness and in the worst may amount to complicity with evil.” (Brahimi Report)  Peacekeepers also cannot use force except in self-defense or in defense of mandate.  “Defense of mandate” may accommodate offensive use of force in some circumstances (e.g., to protect civilians under imminent threat), but peacekeepers certainly cannot lawfully conduct offensive seek-and-disarm missions. Because peacekeepers are not “used outside the humanitarian function to conduct hostilities,” they remain protected as civilian non-combatants.  During an armed conflict, “all persons who are neither members of the armed forces of a party to the conflict . . . are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.”  This attribute enables combatants to distinguish lawful enemy targets from protected persons.  However, it is another matter entirely when peace enforcement units conduct aggressive seek-and-pacify operations.
|
19 Jul

[Chelsea Purvis is the Robert L. Bernstein International Human Rights Fellow at Minority Rights Group International (MRG).  Opinions expressed here are her own and do not necessarily reflect those of MRG.] The African region has long been perceived as a recipient, not a creator, of international human rights law.  But over the past decade, African institutions have enshrined emerging human rights norms in treaties and issued ground-breaking jurisprudence.  Africa should be recognized as a generator of innovative human rights law.  Human rights institutions outside the continent, however, have largely failed to engage with African-made human rights law. An example of innovative African law-making is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which came into force in 2005.  The Maputo Protocol builds on existing women’s rights law: Like the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the Maputo Protocol obligates States parties to combat discrimination against women in all areas of life.  And like the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the Maputo Protocol prohibits physical, sexual, and psychological violence against women.  But the Protocol goes further than these earlier treaties.  For the first time in any international instrument, it prohibits verbal and economic violence against women. The Maputo Protocol contains notable protections for women’s reproductive rights, including an affirmative right to abortion in certain circumstances.  It also takes a conceptual leap forward in its treatment of culture and tradition.  Many sources of women’s rights law treat African cultures as uniformly negative for women. The Maputo Protocol, as Johanna Bond has argued, adopts the more nuanced approach advanced by scholars from the global South.  It recognizes the positive role culture can play in women’s lives but enshrines a woman’s right to shape her culture.  The Protocol also recognizes that certain culturally-authorized practices or beliefs are necessarily harmful to women—it prohibits, for example, female genital mutilation and exploitation in pornography. Another ground-breaking source of African human rights law is a 2010 decision by the African Commission on Human and Peoples’ Rights. 
|
18 Jul

[Tendayi Achiume is the Binder Teaching Fellow at the UCLA School of Law.] According to the United Nations High Commissioner for Refugees (UNHCR), xenophobia is among the greatest contemporary challenges to the protection of refugees and other forced migrants globally. The May 2008 violent attacks against foreign nationals in South Africa are among the most striking contemporary manifestations of this problem. During a two-week period of violence, media reported door-to-door searches in townships and inner cities as inflamed crowds attempted to purge neighborhoods of foreign nationals they blamed for high rates of crime and job scarcity, among other things. These attacks left 62 dead, over 600 injured, and displaced more than 100,000 people—many of whose homes and property were looted in the process. Refugees were among the most severely affected. Although the scale and duration of the attacks in South Africa were remarkable, xenophobic discrimination is a serious problem in contexts as disparate as Greece, France, Ukraine, Israel, Libya and Egypt, where it threatens the lives and livelihoods of refugees and other forced migrants. In this post I briefly describe UNHCR’s response to this problem, which has focused on advocacy to punish hate crimes and to promote tolerance. While recognizing the importance of these measures, I argue that on their own they are inadequate. Engaging structural socio-economic concerns such as inequality and poverty is vital to successfully combating xenophobia, and must form a central part of UNHCR’s response. International law does not define the term “xenophobia”. UNHCR posits that xenophobia may include “discrimination, incitement to discrimination, as well as acts of violence or incitement to violent acts on the grounds of race, colour, descent, or national or ethnic origin, including in combination with other grounds, such as religion, gender or disability.” In the last decade or so, UNHCR has undertaken a range of global policy and advocacy initiatives to combat xenophobic discrimination. The most comprehensive articulation of UNHCR’s policy points to the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) as the legal anchor at the international level for fighting xenophobic discrimination. In a forthcoming article in the Georgetown Journal of International Law’s Spring 2014 volume, I conduct a novel and in-depth analysis of UNHCR’s use of international human rights to fight xenophobic discrimination. But here I wish to highlight a pressing concern with the evolution of UNHCR’s policy in this area. A review of UNHCR’s approach reveals two broad categories, both of which find firm support in ICERD. The first focuses on punishing perpetrators of discriminatory acts explicitly motivated by xenophobic prejudice. Examples include advocacy to promote and enforce hate crimes legislation, to monitor signs of prejudice, and to track and publicize hate crimes prosecutions. The second category of strategies focuses on the use of human rights education initiatives and public awareness campaigns to fight prejudice and promote tolerance and diversity. Punishing perpetrators and promoting tolerance and diversity are important strategies for protecting refugees from xenophobia. But on their own, these strategies are unequal to their task.
|
17 Jul

[Daniel Seah is a PhD candidate at the Faculty of Laws, University College London.] Has the Association of Southeast Asian Nations (ASEAN) finally had its own post-ontological moment?  No longer are we condemned to participate in the banality of questioning ASEAN’s legal existence as an international organization (IO). After all, since 2008, its international legal personality was expressly conferred in Article 3 of the ASEAN Charter, a constituent treaty.  Now is the time to ask a more useful question: what are the legal consequences that flow from ASEAN exercising its international legal personality? Nowhere is an answer to this question more clearly thrown into relief than in the conferral of competences by member States upon ASEAN, which is the focus of this post. IOs are not created equal; there is a great variety in their functions and objectives. Establishing the objective international legal personalities in these IOs is the easy bit. More difficult are the issues that bear on how the legal personality has been exercised by an IO; and what legal consequences arise for the IO and its member States, as separate legal persons. Because an IO at international law is a legal person, it (or its bodies) can act on behalf of member States although some of these acts are not expressly conferred in the constituent treaty - I call these “implied conferrals”. The word “conferral” is not a legal term of art. It had been variously defined as “capacities” (CF Amerasinghe) to indicate the consequences of international legal personality; “international delegations” (Curtis Bradley & Judith Kelley) to explain a range of legal (and non-legal) decision-making exercised by IOs; or “competences” on which the European Union (EU) is authorised to act in particular areas such as the common commercial policy. In this post, I instance the early practice of the ASEAN Intergovernmental Commission on Human Rights (AICHR) as an example of implied conferrals.
|
16 Jul

[Scott McKenzie is a lawyer in private practice.  His scholarship focuses on water policy in the context of sustainable development.] The Nile River is currently one of the most contentious transboundary water hotspots.  As Ethiopia begins construction of the Grand Renaissance Dam (GERD), it forces Egypt and other basin states to re-examine how the Nile’s water is allocated.  This situation has the potential to result in conflict, but modern international water law can help these states settle their differences peacefully.  At the heart of water law are principles regarding the allocation and management of these resources.  These principles are designed to promote cooperation, prevent conflict, and provide needed stability.  The Nile is a timely case study to see how these principles can be applied. The conflict over the Nile’s water pits the more developed downstream countries Egypt and Sudan against the still developing upstream countries including Ethiopia, Uganda, Kenya, Tanzania, Burundi, Rwanda, the Democratic Republic of Congo (DRC), Eritrea, and South Sudan. The downstream countries are almost completely dependent on the Nile’s water and have historically received a large portion of the Nile’s flow.  However, as the upstream countries begin to develop they need more water for their drinking water, agricultural irrigation, and hydropower production. In June, Ethiopia began diverting a portion of the Nile as part of its plans for the construction of the GERD. Egypt was alarmed by this move because the GERD is a stunning size.  When complete, it will be the largest dam in Africa and have a generating capacity of 6,000 megawatts (the equivalent of 6 nuclear power plants).  Egypt is concerned that such a dam could reduce the amount of water it receives from the Nile, and because it is a signal that in the future the upstream countries will wield greater power over the Nile. Neither Egypt or Ethiopia has gone to war over the Nile’s water, but both sides are engaging in a tremendous amount of saber-rattling.  For example, at a recent forum of Egyptian politicians, it was suggested that the country could sabotage dam construction though a covert military campaign.  Ethiopia has long been concerned about such a plot.  As former Prime Minister Meles Zenawi said he was not “worried that the Egyptians will suddenly invade Ethiopia ... Nobody who has tried that has lived to tell the story.” Governing this conflict are competing legal instruments, which also reflect the evolution of water law. 
|
15 Jul

[Patricia Tarre Moser is an Attorney at the Inter-American Court of Human Rights. The views expressed here are her own.] The international law doctrine of sovereign immunity has proved to be a powerful obstacle to effective enforcement of international human rights.  Domestic and international courts have begun to carve out some exceptions to sovereign immunity in individual cases, but as the ICJ made clear in the Ferrini case, sovereign immunity continues to protect states from civil proceedings -- even in cases where jus cogens violations take place. But what if a state, as a counter-measure, withheld sovereign immunity from another state that engages in a jus cogens violation?  In a recent article I propose that, in certain circumstances, for example a civil case brought in a State A for torture violations in State B, State A's courts should be permitted to withhold sovereign immunity from State B as a form of countermeasure against State B. The objective of the countermeasure must be to persuade the wrong-doing State to cease the violation and/or make reparations. The non-recognition of state immunity as a countermeasure could contribute towards this goal. Even if the hypothetical national court’s orders cannot be enforced against the wrong-doing State due to immunity from enforcement measures, the judgment itself serves as reparation to the victims. Using torture as an example, my proposal works as follows: after the torture victim files a claim against the State B before a Court of State A, the latter has to undertake a prima facie analysis of whether the alleged victim was subjected to torture and whether the torture was attributable to State B. If so, State A’s Court has to determine whether the non-recognition of State B’s immunity would be proportionate to the injury and to the gravity of the violation that caused the injury.  Additionally, while assessing the proportionality of the measure, the Court would need to take into account the rights of all parties involved: the victim, the State A and State B.
|
12 Jul

[Otto Spijkers is Assistant Professor of Public International Law at Utrecht University and Arron Honniball is a Student of the LL.M. Public International Law at Utrecht University] As the Millennium Development Goals (MDGs) approach their target date of 2015, the international community has begun developing post-2015 goals; the Sustainable Development Goals (SDGs). A number of concurrent work streams were established, including the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda (HLP). It was emphasised throughout the resulting report of the HLP and at the launch event on May 30, 2013 that various global public consultations shaped that report and will continue to shape the SDGs development process. In this post we wish to assess whether there is a meaningful opportunity for global public participation in the formulation of the SDGs. Are citizens, individually or organized, provided with an opportunity to influence the development, implementation and/or evaluation of the SDGs? For international lawyers and political scientists, it is especially interesting to look at this “experiment” in global public participation. Are we witnessing the start of a new process of global policy-making, with global public consultation as one of its principal steps? Such process would proceed roughly as follows: First the UN conducts a global public consultation; then a group of experts use the results of the consultation as the basis for a comprehensive report, and this report is then the basis of a UN-led negotiation process, which will ultimately lead to commitments accepted by the community of States.
|
11 Jul

[Scott Robinson is a recent J.D. graduate from the University of Western Ontario, Faculty of Law] In at least seventy-six states it remains illegal to engage in same-sex conduct; in at least five of these, it still attracts the death penalty. It is no secret that, at the hands of both state actors and private individuals, LGBTQ persons around the world continue to face widespread and often systematic discrimination on account of their sexual orientation and gender identity. Further, nowhere within international human rights law is sexual orientation or gender identity explicitly codified as prohibited grounds for discrimination. While “great weight” should be ascribed to the views of human rights treaty bodies that have read-in protection over the years, such views remain but non-binding recommendations directed at states, tied to existing treaties silent on LGBTQ rights. Indeed, it is clear that international law is utterly failing to address “one of the great neglected human rights challenges of our time”. A robust, comprehensive LGBTQ treaty is needed—perhaps a “Convention on the Elimination of All Forms of Discrimination against LGBTQ Persons”. Treaty-precedents like the CERD and CEDAW (especially when viewed in light of more recent human rights treaties), demonstrate that an LGBTQ non-discrimination treaty is possible in form. Documents like the Yogyakarta Principles, certainly demonstrate that a pointed LGBTQ treaty is possible in substance. The real question, however, is how to achieve a treaty anytime in the near future, given the fierce resistance to LGBTQ rights witnessed to date, particularly within the UN system. There exists no General Assembly Resolution or Declaration on LBGTQ persons, nor is one likely any time soon (any purported attempts at such having essentially been abandoned in the past). Perhaps more formidably, actors such as the Holy See and Islamic and African blocs of states have balked at the very notion of LGBTQ rights at every possible opportunity at the UN—events at the Human Rights Council as recently as a few weeks ago stand as a testament to this continued opposition. At this point in time, it seems as though the only viable option for achieving an LGBTQ treaty is by engaging in what has become known as the “Ottawa Process” for treaty negotiation and adoption.
|
10 Jul

[Reuven (Ruvi) Ziegler is a lecturer in law at the University of Reading School of Law.] The European Court of Human Rights has consistently held that the undertaking in Article 3 of Protocol I of the European Convention on Human Rights (ECHR)  to hold ‘free elections’ which ‘will ensure the free expression of the opinion of the people in the choice of the legislature’ entails an individual right to vote (see e.g. in Hirst (no .2). [57]). While the Strasbourg court pronounced that ‘the presumption in a democratic state must be in favour of inclusion’ and that ‘any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates’ (Hirst (no .2), [59]), the court has hitherto failed to develop a principled approach regarding the circumstances in which such ‘departure’ may be justified. Instead, it has emphasised that ‘[a]s regards, in particular, the choice of electoral system, the Court reiterates that the Contracting States enjoy a wide margin of appreciation in this sphere’ (Sitaropoulos, [65-66]), as ‘[t]here are numerous ways of organising and running electoral systems’ (Id; also Shindler, [102]). The margin of appreciation doctrine has received both scorn and praise. This post does not concern its general application; rather, it is contended that the court’s voting rights jurisprudence has conflated questions relating to choice of electoral systems (‘First-Past-The-Post’, Alternative Vote, Proportional Representation, Single Transferrable Vote, and the like) with questions relating to voting eligibility. Even if states should enjoy a margin of appreciation which takes into account the ‘historical development, cultural diversity and political thought within Europe’ (Hirst (no .2), [61]) when their choice of system of government is appraised, according states a ‘wide [but] not all-embracing’ (Hirst (no .2), [82]) margin of appreciation in determining voting eligibility detrimentally affects fundamental democratic rights of individual Europeans, as Strasbourg’s jurisprudence concerning voting rights of non-resident citizens (expatriates) exhibits. All democratic states set eligibility criteria for elections of their institutions of government. Alongside the ubiquitous exclusion of non-citizen residents (at least from) national elections of their state of residence, some states - including members of the Council of Europe - impose residency requirements which disqualify expatriates during (part or all) of their period of absence. Consequently, otherwise eligible citizens of one member state of the Council of Europe residing in another member state can be excluded from elections of their state of citizenship and from elections of their state of residence.
|
09 Jul

[Maninder Malli recently completed a LL.M. (International Legal Studies) at New York University and he is currently working with the Legal Vice Presidency of the World Bank in Washington, D.C.] International investment law (IIL) is highly dynamic.  The lack of a broad multilateral agreement on investment coupled with the rapid rise of foreign direct investment (FDI) has led to the profusion of bilateral investment treaties (BITs) and, increasingly, minilateral arrangements between three or more geographically-proximate or otherwise like-minded States.  The ‘spaghetti bowl’ of international investment agreements is becoming further entangled with hundreds of minilateral arrangements, including free trade agreements (FTAs) with investment provisions, economic partnership agreements and regional agreements. In many areas of international law, including international trade, States are abandoning glacial multilateral initiatives and opting for regional or sectoral approaches to solve global problems and coordinate mutually beneficial action.  Moses Naím suggests that the failure since the 1990s of most grand multilateral negotiations represents not only a perpetual lack of international consensus, but also a “flawed obsession with multilateralism as the panacea for all the world’s ills.”  Naím argues for a smarter, more targeted approach, by bringing to the relevant table “the smallest number of countries needed to have the largest possible impact on solving a particular problem.”  Francis Fukuyama, similarly, has advocated for “multi-multilateralism,” entailing a diversity of institutions and institutional forms to provide governance across a range of security, economic, environmental, and other issues. In the context of IIL, the profusion of regional investment arrangements (such as the recent trilateral investment agreement between China, Japan and South Korea and the Mexico–Central America FTA) and the ongoing discussions for investment regulation in a Trans-Pacific Partnership (TPP) and a Transatlantic Trade and Investment Partnership (TTIP) are clear evidence of this minilateral trend.  As proposed in the TPP and TTIP, investment regulation is incorporated into broader economic arrangements which often include trade, intellectual property and regulatory coherence.  The Energy Charter Treaty (ECT) is a sectoral example of a minilateral treaty which entails investor protection.  States are clearly converting their strong bilateral economic and political relationships into minilateral arrangements to regulate FDI. These initiatives, at least in part, reflect a desire of State parties to circumvent broader multilateral efforts that lack consensus on the precise standards of treatment of foreign investors and thus fail to achieve substantive common ground.  The OECD’s failed Multilateral Agreement on Investment in the late 1990s and the inability to advance the multilateral investment agenda within the World Trade Organization illustrate the challenge of crafting comprehensive general principles and specific treaty provisions which are responsive to the diverse and vacillating economic, social and political conditions of a large number of States.  In the IIL context, this is most clearly manifested in the dichotomy between (i) the desire of States to attract FDI and to be perceived as active participants in the liberal economic order, on one hand, and (ii) the need to retain regulatory flexibility and avoid plethoric investor-state arbitration, on the other.  The absence of complete and adequate multilateral investment rules was historically blamed on the discord between capital-supplying and capital-receiving nations.  This dichotomy is today no longer as simple, as an increasing number of countries are both capital suppliers and capital recipients, and the correlation between the two is ever-fluctuating. I submit that greater attention should be paid to the potential for minilateral arrangements to better reflect modern State desires and ambitions for reciprocal FDI promotion and protection.  While the content of most investment agreements is remarkably similar, there are important deviations in the wording, application and interpretation of many substantive provisions. 
|
08 Jul

[Christopher Warren is an Assistant Professor of English at Carnegie Mellon University] Disciplinarily, as my title suggests, I come from elsewhere.  But having travelled here to the shores of international law from my home in early modern cultural studies, I come in part to praise the fragmented landscape. “Fragmentation” in recent legal discussions usually refers to “traditional international law [being] pushed aside by a mosaic of particular rules and institutions, each following its embedded preferences.” “An everyday international occurrence such as the transport of hazardous chemicals at sea,” as Martti Koskenniemi explains, can now be “narrate[d] as part of a different set of human pursuits, values, and priorities,” including trade law, transport law, environmental law, law of the sea, or human rights. Koskenniemi’s account of jurisdictional and normative fragmentation usefully captures two main insights, first, that narrative—story—plays a critical and maybe increasing role on what is notably called the “international stage”; and secondly, that the stories we tell and the ways that we tell them have legal, social, economic, and political consequences. Robert Cover’s foundational essay “Nomos and Narrative” (pdf) powerfully articulates such insights as well.

Disciplinary Fragmentation

My first interest here, however, is not normative fragmentation but a different though related kind of fragmentation, namely disciplinary fragmentation, specifically the present disconnect between international law and humanistic disciplines like literature and history. Fortunately, disciplinary fragmentation has left rough, jagged edges, and while I’m visiting here I want to take the opportunity to celebrate the craggy coastlines where we can still find evidence of international law’s connections with the humanities. The present distance between international law and literary and cultural studies might make my participation in this forum surprising, but it’s also, I’d suggest, a fruitful way to think historically and methodologically about international law.
|
08 Jul

It's been a few months in the making, but today we're kicking off our inaugural Emerging Voices symposium. Until late August, we'll bring you a wide variety of posts, all written by graduate students, junior practitioners and junior academics. So watch this space if you want to read more about international law's often forgotten connections with the humanities, expat voting rights under...

|