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Home Archive for category "EJIL Analysis" (Page 2)

OFAC’s Settlement with Commerzbank AG: Coerced Voluntary Settlements of the Competitively Disadvantaged

Published on March 20, 2015        Author: 

Nine months after the Office of Foreign Asset Control’s largest ever settlement with French BNP Paribas (see my previous post), OFAC is striking again. On March 11, OFAC settled for the first time with a German financial institution, Commerzbank AG, for alleged violations of the U.S. sanctions regulations. Commerzbank is the thirteenth foreign financial institution (and eleventh European one) to settle with U.S. authorities (see e.g. OFAC’s Selected Settlement Agreements) for processing electronic funds on behalf of its Cuban, Iranian, Burmese and Sudanese customers, among others. (Settlement Agreement [26-30]). In exchange for Commerzbank’s agreement to pay OFAC $258 million (less than a third of what BNPP agreed to pay OFAC alone), OFAC pardoned the bank of all civil liability in government-initiated cases for its alleged wrongful conduct, thought to have started in 2002. (See Settlement Agreement [39]).

The total amount paid to all relevant U.S. authorities (United States Department of Justice, New York County District Attorney’s Office, Federal Reserve Boards of Governors and the Department of Financial Services of the State of New York) is $1.45 billion. This post considers only OFAC’s actions toward Commerzbank and calls into question OFAC’s jurisdiction to enforce its sanctions regulations and penalties abroad.

Allegations against Commerzbank

Commerzbank allegedly violated the U.S. sanctions regulations by routing non-transparent payment messages for states, entities and individuals subject to U.S. sanctions through the U.S. financial system between 2002 and 2010. By removing or omitting references to U.S.-designated entities from SWIFT’s MT103 and MT202 payment messages, Commerzbank also allegedly caused U.S. financial institutions to violate U.S. law. (Settlement Agreement [3-5, 1-9, 11, 20]). The first question we must ask is why Commerzbank, a German entity, would have to follow U.S. sanctions regulations?

OFAC’s main argument is that the alleged wrongful transactions went through the U.S. financial system, and, therefore, under the territoriality principle, U.S. law applies. Without repeating myself (see my previous post), I would like to stress that Commerzbank, incorporated in Germany and initiating its transactions in Germany, has a much stronger jurisdictional link to German than to U.S. law. In the settlement, OFAC acknowledges that Commerzbank agrees to OFAC’s requests only to the extent permitted by local law. (Settlement Agreement [44]). Read the rest of this entry…

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An Old Question in a New Context: Do States Have to Comply with Human Rights When Countering the Phenomenon of Foreign Fighters?

Published on March 19, 2015        Author: 

The phenomenon of foreign fighters involves, as described by the OHCHR, “individuals who leave their country of origin or habitual residence, motivated primarily by ideology or religion, and become involved in violence as part of an insurgency or non-State armed group (even though they may also be motivated by payment)”. Preventing and responding to this phenomenon involves a multitude of potential initiatives at international, regional and national levels. A review of the Security Council’s principal resolution on foreign fighters, Resolution 2178 (2014), discloses several binding decisions as well as recommendations in what the Security Council described as a ‘comprehensive’ response to the factors underlying foreign fighters (see preambular para 13). State prevention and responses to foreign fighters have the potential to impact on the international human rights obligations of States and we are already seeing robust State responses, including in the case of the United Kingdom’s recent enactment of the Counter-Terrorism and Security Act 2015 and earlier amendments to the British Nationality Act 1981 to allow for the deprivation of citizenship.

I want to emphasise here that the question of human rights compliance in countering the phenomenon of foreign fighters does not involve new or untested issues. I draw attention to seven points:

1.  Implementation by States of recommendations and obligations under SC Res 2178 has the potential to impact on a broad range of civil, cultural, economic, political and social rights

The main objectives of SC Res 2178 are to inhibit the travel of foreign fighters, stem the recruitment to terrorism, disrupt financial support to or by foreign fighters, prevent radicalisation, counter violent extremism and incitement to terrorism, and facilitate reintegration and rehabilitation (see operative paragraphs 2-19).

Action in response will, or at least may, engage several human rights obligations of States. Concerning measures to inhibit the travel of foreign fighters, this may include: the freedom of movement; the right to return to one’s country of nationality; the freedom of entry into a State, particularly as this may affect refugee and asylum law; the deprivation of citizenship; the rights to family and private life and to employment and culture, as this affects individuals who may be prevented from entering a territory of habitual residence in which their family resides; the right to privacy, including as this affects the collection, storage or use of information in border control activities; the prohibition against discrimination, including as this affects profiling activities of border control officials; detention, as this affects the prohibition against unlawful or arbitrary detention; and rendition to States in which there is a risk of human rights violations being perpetrated against the individual. Read the rest of this entry…

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Breaking the Washington Consensus?  The Rise of ‘Alternative’ Development Banks

Published on March 18, 2015        Author: 

The United Kingdom scuttled much of its trans-Atlantic partnership with the United States this week, when it became the first G7 country to join the China-led Asian Infrastructure Investment Bank (AIIB) over US objections.  European countries France, Germany, and Italy followed suit, with Australia and South Korea now re-evaluating their positions to consider joining the USD $50 billion capitalized AIIB. Japan is holding firm on its alliance with the United States in refusing to join the AIIB.  United States National Security Council spokesperson Patrick Ventrell declared that “any new multilateral institution should incorporate the high standards of the World Bank and the regional development banks…we have concerns about whether the AIIB will meet these high standards, particularly related to governance, and environmental and social safeguards.” As I write from my temporary office here at the Centre for Asian Legal Studies (CALS) at the National University of Singapore Faculty of Law, commentaries proliferate on this debacle and the alleged waning geopolitical influence of the United States, most recently from Kishore Mahbubani, Dean of the Lee Kuan Yew School of Public Policy, who declares all these events “a sign of American decline”.  It is not the first indictment on America’s lessening hegemonic grip in the face of China as a rising power. Joseph Weiler’s magisterial Keynote at the 2014 ESIL conference showed how the conflation of politics, cultural cleavages, economics, and moral authority essentially presaged the end of Pax Americana.   More detail to these themes also resonate from a recent 2014 edited book by political science and international relations scholars Vinod Aggarwal and Sara Newland, showing how both the United States and the European Union have deployed various strategies of engagement, cooperation, and confrontation with the rise of China.

Whichever brush we use to describe the decision of key US allies such as the UK and Europe to join the AIIB (e.g. defection from US alliances, or strategic policies towards engagement with China as a rising power), the more interesting international legal phenomenon here is the impact of the rise of the AIIB (and other rival new development banks in the future) on the decades of dominance of the Washington Consensus in international development finance law.  Will the rise of ‘alternative’ development banks such as the AIIB break the stranglehold of the Washington Consensus on international development lending? And if so, what will the AIIB replace it with?  Would the AIIB and new ‘alternative’ development banks necessarily spell sea changes in ensuring compliance with international environmental and social norms and treaty standards throughout international development projects in developing countries?  While the AIIB has been hailed as a needed balance to American dominance in international development lending, China has also been quite opaque thus far on the actual contours of the AIIB’s governance and the terms of its international development lending policies.  And it is precisely this nebulousness that the US appears to interpret as a slide towards the lowest denominator in social inclusion, and the protection of environmental and social safeguards in international development lending.  Never mind that the World Bank is doing its own soul-searching and internal review on this score as well by calling for a long overdue review of its environmental and social safeguards policies, with World Bank President Jim Yong Kim recently warning of the surge of forced resettlement from Bank projects.

The rise of new ‘alternative’ development banks such as the AIIB and the contemplated BRICS bank creates an opening not just to dilute the powerful (almost monopolistic) reach of the United States on international development finance policies, but also to engage all international finance powerhouses – established or emerging – in reforms over global standard-setting in the international development finance ‘soft’ and ‘hard’ law. For over sixty years since the post-war global reconstruction period and in tandem with the evolution of the modern UN Charter era, Washington Consensus policies have dominated reform prescriptions for developing country borrowers.  These policies focus on ten points as the core focus of lending by international financial institutions that heavily depend on US capital (the trio of the World Bank, the International Monetary Fund, and the US Treasury): Read the rest of this entry…

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Comments on the British Intelligence and Security Committee Report

Published on March 16, 2015        Author: 

Cross-posted on Lawfare.

Last week the Intelligence and Security Committee (ISC) of the UK Parliament published its much-anticipated report entitled ‘Privacy and Security: A modern and transparent legal framework.’ The Report followed an extended inquiry into UK agencies’ surveillance practices prompted by the Snowden revelations; while it concludes that the agencies have generally acted within the prescribed legal limits, it also calls for a total overhaul of the UK legislation governing electronic surveillance, which it finds to be fragmented, overly complex and confusing. For helpful overviews of the Report’s main conclusions and recommendations, see Shaheed Fatima and Ruchi Parekh on Just Security, and James Ball in The Guardian.

The ISC’s exoneration of GCHQ et al. was hardly surprising – libertarians and privacy activists have derided its members as having long gone native and being nothing more than a bunch of apologists for the intelligence agencies whom they are supposed to oversee. Liberty’s ShamiChakrabarti thus commented that ‘the ISC has repeatedly shown itself as a simple mouthpiece for the spooks – so clueless and ineffective that it’s only thanks to Edward Snowden that it had the slightest clue of the agencies’ antics,’ while The Guardian’s editorial page a tad more delicately called it the ‘watchdog that rarely barks,’ the ‘slumbering scrutineer’ and a body that ‘searches out nothing.’ So there.

Whatever the intentions behind the Report, and despite the (at times comical) level of redactions in its public version, it is still a useful document. At a minimum, it provides a reasonably clear analytical overview of the legal framework currently regulating the surveillance activities of the British intelligence agencies, as well as the relevant procedures, and provides a helpful comparison point for those looking at the same set of problems in a different system, for instance in the United States or Germany. In this post I will comment critically on some aspects of the Report that I think are especially interesting and deserving of further consideration.

Read the rest of this entry…

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House of Cards and International Law

Published on March 11, 2015        Author: 

I just finished watching season 3 of Netflix’s House of Cards, starring Kevin Spacey and Robin Wright as your modern-day Lord and Lady Macbeth. I love watching great bad guys, and season 3 did not disappoint, even if I thought it wasn’t as good as the previous ones. (warning: some minor spoilers follow). Interestingly, one major plotline had a strong international legal element. To wit, although President Underwood had been superb in his climb to ultimate power, his domestic and foreign policies range from the remotely plausible to the utterly preposterous. One such idea is a half-baked and never really explained peace plan for Israel and Palestine which involves the deployment of international peacekeepers in the Jordan Valley.

This obviously involves much toing and froing in the UN Security Council, and to do that effectively President Underwood appoints his wife as US Ambassador to the UN (despite the fact that she has zero foreign policy experience, causing her confirmation to be denied by the Senate, which leads the President to give her a recess appointment – seriously). This policy is opposed on and off by Russia, leading to quite a bit of direct negotiations between President Underwood and his Russian counterpart, Viktor Petrov (a Vladimir Putin impersonator played infernally well by Lars Mikkelsen). We even have a spectacularly implausible state dinner for Petrov at the White House, to which Underwood’s people inexplicably invite three members of the Pussy Riot band (actually playing themselves!). As you can imagine, things don’t end well.

Amusingly, in order to overcome the Russian veto in the Security Council, President Underwood and his better half decide to invoke the Uniting for Peace Resolution.  I certainly did not see that old chestnut coming, and I’m also pretty sure that this is the first time the words ‘Uniting for Peace Resolution’ were uttered in a major Hollywood production. Honestly, all I now need is for Kevin Spacey to do a menacing soliloquy distinguishing between the jus ad bellum and the jus in bello and my life will be complete.

So that was fun. Dear readers, any other hot movies/series out there with international law-related plots? Feel free to display your nerddom in the comments.

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The Case of Russia’s Detention of Ukrainian Military Pilot Savchenko under IHL

Published on March 3, 2015        Author: 

There has been much debate in recent weeks over whether international humanitarian law (IHL) authorizes internment in non-international armed conflicts (NIACs) (see posts here, here and here). Both sides have presented convincing arguments but without applying them to concrete situations. In this regard, Russia’s ongoing detention of Ukrainian Air Force officer Nadia Savchenko provides a timely case study. As detailed below, the detention of certain categories of people raises questions during both NIACs and international armed conflicts (IACs), depending on who the detaining authorities are.

Lieutenant Savchenko was allegedly captured in full uniform in Eastern Ukraine on or about June 18, 2014 by the armed forces of the Luhansk People’s Republic during active hostilities. Several days later, the separatists transferred her to Russian special forces, who in turn transported her to Russia. Russia, however, claims that Savchenko crossed the border voluntarily and was detained as an undocumented refugee. In any case, on July 9, 2014, Russian authorities announced that Savchenko was detained in a civilian detention center in Voronezh, Russia, facing charges of directing mortar fire that killed two Russian journalists during an attack on a separatist checkpoint outside of Luhansk. Currently, Savchenko is kept in a detention facility in Moscow, facing an additional charge of trespass.

Savchenko, who is on a hunger strike to protest the charges, has filed a complaint before the European Court of Human Rights alleging that her detention violates her rights to liberty (Article 5) and a fair trial (Article 6) as enshrined in the European Convention on Human Rights. The ECtHR gave Savchenko’s initial application priority, but on February 10 refused to grant Savchenko’s Rule 39 request for interim measures compelling Russia to immediately release the prisoner. The court instead asked Savchenko to end her hunger strike and Russia to provide more facts concerning her detention. Read the rest of this entry…

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The Palestinian Authority Jury Award: Implications on Liability of Non-States and Damages for Psychological Harm

Published on February 26, 2015        Author: 

The recent jury verdict in the U.S. federal court finding that the Palestinian Authority should pay $655.5 million in damages to American victims of terrorism during the second Intifada has important legal and political ramifications. This post will focus on two questions raised by the verdict. First, on what basis can non-states be obligated to compensate civilians for casualties inflicted by another non-state actor? Second, might we begin to see more courts willing to award damages for psychological harm caused by terrorism?

Regarding the first issue, the verdict leaves open the question whether holding the Palestinian Authority accountable for the deeds of non-state actors implies that the Palestinian Authority should be viewed as a state. Until now, in a number of judgments, U.S. courts have found only that states, and not non-state entities such as freedom movements that possess some characteristics of a state, may bear accountability for material support to non-state actors. However, the verdict could be interpreted as an extension of this jurisprudential line.

Such an interpretation counters arguments by some scholars that the Palestinian Authority might be treated like other non-state actors such as multinational companies. Some legal academics have argued that courts hearing the case on appeal might consider such an analogy. On this view, the Supreme Court’s Daimler AG judgment could serve as a guiding torch. In the Daimler AG case, the US Supreme Court ruled that Daimler AG, a company in Germany, could not be sued in California based on the continuous and substantial business activities in California of Daimler’s US subsidiary, Mercedes-Benz USA. Read the rest of this entry…

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IHL Does Authorize Detention in NIAC: A Rejoinder to Rogier Bartels

Published on February 24, 2015        Author: 

We are grateful to Rogier Bartels for his thoughtful comments on our recent post and article in which we argue that IHL authorizes State parties to a NIAC to detain suspected insurgents. In this rejoinder, we briefly respond to Rogier’s main criticisms of our argument.

Equal protection versus equal status

The crux of Rogier’s criticism flows from his understanding of what the principle of equal application requires. For Rogier—as well as for Leggatt J in Serdar Mohammed and Dapo Akande and Lawrence Hill-Cawthorne (see here and here) —‘a principle of IHL has to apply equally to all sides; otherwise it cannot be a principle’. All parties to a NIAC, both States and non-state actors, must have exactly the same rights (including authorities) and obligations under IHL. Thus, our position that IHL authorizes States (but not organized armed groups) to detain produces unacceptably ‘asymmetrical rules’.

As we explain in our article, this ‘symmetry’ objection stretches the principle of equal application beyond its breaking point:

If the principle [of equal application] demands that all belligerents must enjoy the same status and rights and CA3 does not confer the full panoply of belligerent status and rights on non-State actors, then the only logical conclusion is that the parties to the Geneva Conventions and AP II gave up their status and rights as States and assumed the same status and rights as non-State actors. This not only contradicts commonsense, but also the plain language of CA3, which declares that it does not affect the legal status of the parties, State and non-State alike, to the conflict. In fact, CA3 thereby conserves any pre-existing inequality between the belligerent status and rights of State and non-State parties to a NIAC.

The principle of equal application requires that the protections and obligations under IHL apply to all parties to an IAC or NIAC whatever the lawfulness of resort to force under the jus ad bellum. Entitlement to protection is not dependent on how the conflict began or the relative justice of the causes involved. Similarly, the scope of IHL obligations should not be linked to organizational capacities or military rationales. However, none of this alters the fact that there is an undeniable asymmetry in the status of parties to a NIAC. One is a State and the other is not. The fact that an internal situation rises to the level of a NIAC does not transform the State party into a non-State actor or vice versa. As René Provost notes in his comments on the debate between Marco Sassòli and Yuval Shany referred to by Rogier: Read the rest of this entry…

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The Budapest Memorandum and Beyond: Have the Western Parties Breached a Legal Obligation?

Published on February 18, 2015        Author: 

Angela Merkel, Chancellor of Germany, brought renewed attention at the Munich Security Conference this month to the Budapest Memorandum, an instrument adopted some twenty years ago by Ukraine, the Russian Federation, the United Kingdom and the United States.  The Chancellor said that the Russian Federation, by invading eastern Ukraine and annexing Crimea, “has broken its commitment to the Budapest Memorandum.”  Merkel asked, “Who would give up their nuclear capability if their territorial integrity were not respected?”

The Budapest Memorandum, or to give its long form title, Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), was adopted in connection with Ukraine’s agreement at the time to relinquish the nuclear weapons in its territory, these having formed a substantial part of the arsenal of the former USSR.  In its Declaration at time of accession to the NPT, Ukraine further stated that “[t]he threat or use of force against the territorial integrity and inviolability of borders or political independence of Ukraine from a nuclear power… will be considered by Ukraine as exceptional circumstances which jeopardize its interests.”  The Russian Federation in 2014/2015 clearly is in breach of the terms of the Budapest Memorandum.  The Russian Federation, under paragraph 1, “reaffirm[ed]” its commitment “to respect the independence and sovereignty and the existing borders of Ukraine.”  Even if crediting the Russian Federation’s arguments for use of force against Ukraine, forced annexations and separations of territory constitute breach, and of a serious character—points further addressed in my forthcoming book, Aggression against Ukraine: Territory, Responsibility and International Law. Read the rest of this entry…

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IHL Does Not Authorise Detention in NIAC: A Reply to Sean Aughey and Aurel Sari  

Published on February 16, 2015        Author: 

As noted by Sean and Aurel, the appeals proceedings in Serdar Mohammed v Ministry of Defence have sparked a renewed debate about detention in non-international armed conflict (NIAC). They have set out their arguments in an interesting article and in summary form in this post. I am not convinced by their arguments though, and despite the fact that certain provisions of the law of NIAC address the restriction of liberty or otherwise recognize that on occasion persons will be held by a party to the conflict, I do not see any authorisation for detention in the black-letter, or customary, law of NIAC. In this reply, I address some of the arguments made in favour of finding such authorisation and put forward an opposing view, in support of Leggatt J’s judgment.

Sean and Aurel, and others claiming that authorisation to detain must exist because it is (partially) regulated, fail to acknowledge that the entire body of post-WW2 IHL shows that the regulation of a situation (or behaviour) does not make the occurrence of that situation legal or authorised. The pragmatism of the ICRC and the recognition that conflicts would continue to occur and regulation of the behaviour of warring parties would continue to be necessary, despite the UN’s insistence that no further need for regulation was necessary after the adoption of the UN Charter that outlawed aggression, does not make it legal to wage war. The fact that rules were adopted for NIAC, did not give armed groups any authorisation to fights their governments (or each other). Nor did it authorise governments to take action against such armed groups. Instead, IHL explicitly recognises that sovereign States had that right, independent of IHL. Read the rest of this entry…

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