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

The Trump Presidency and the Iran Nuclear Deal: Initial Thoughts

Published on November 17, 2016        Author: 

Well it’s been a dramatic and, for many of us, soul searching week since last Tuesday’s presidential election in the U.S. resulting in Donald Trump being elected the next U.S. president. I’ll hold back on political editorializing in this space. We all have our views and there are other fora in which to express them.

Among the many issues that will be affected when Trump assumes the U.S. presidency in January is of course the Iran nuclear issue. Trump famously stated on the campaign trail: “My number one priority is to dismantle the disastrous deal with Iran.”  I don’t actually think this is his number one priority, but nevertheless a President Trump and his foreign policy team will most definitely not be the champions of the Joint Comprehensive Plan of Action (JCPOA) that President Obama and Secretary of State John Kerry have been.

Of course this all comes as a shock to most of us who work in the nuclear nonproliferation area. I genuinely thought that the JCPOA would, under a Hillary Clinton presidency, perhaps not be as positively supported by the U.S. administration as it had been, but that nevertheless the U.S. would seek to keep its commitments under the deal.  And as a side note, I also thought that this meant I probably wouldn’t be writing that much more about the JCPOA, and I welcomed that.

But now we are faced with a new reality and a lot of uncertainty about specifically how President Trump and his foreign policy team will treat the JCPOA, as well as whether Republicans in Congress will now – with Trump as president and willing to sign it into law – be successful in imposing new economic sanctions on Iran through statute.

I thought I would just offer a few initial observations and thoughts about the various questions that we now face relative to the JCPOA:

Read the rest of this entry…

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What is the Future of the SOGI Mandate and What Does it Mean for the UN Human Rights Council?

Last June, human rights defenders the world over celebrated the historic step taken by the Human Rights Council (HRC) to create a UN Special Procedures mandate on sexual orientation and gender identity. It had taken years of advocacy by the LGBTI and wider human rights community, and careful manoeuvering within the UN system to attain this belated but historic victory. For many years, LGBTI issues were addressed through reports and resolutions on extra-judicial and arbitrary killings and on violence against women, as well as through joint statements by UN member States.  However, since the ground-breaking Toonen vs Australia decision of the Human Rights Committee in 1994, the UN system has gradually improved with respect to the recognition and the level of attention it has paid to the particular threats faced by the LGTBI community. In relation to the HRC specifically, there has been a gradual build-up to the appointment, from a subject specific resolution in 2011 (17/19), which commissioned a special report  (HRC/19/41) by the Office of the High Commissioner for Human Rights (OHCHR), to a panel discussion in March 2012, to a follow-up resolution in 2014, and an updated report in 2015.

Human Rights Council resolution 32/2 which created the SOGI mandate was not universally endorsed by States; indeed, it was adopted by a vote of 23-18 with 6 abstentions, a noticeably high number of opposing votes in the light of general voting patterns, even among similarly contentious mandates, such as the ones on unilateral coercive measures (vote of 31 in favour, 14 against and 2 abstentions); international solidarity (33 in favour, 12 against, 1 abstention); and the promotion of a democratic and equitable international order (29 to 14, with 4 abstentions). Vitit Muntarbhorn, the expert charged with carrying out the mandate, was appointed in September in line with the rules of procedure of the HRC. Although reports of the Council are subject to endorsement by the General Assembly (GA), in practice this is generally a formality. As is typical following appointment by the Council, Mr. Muntarbhorn has already begun working on this long overdue mandate.

However, in an unprecedented move, the work of the mandate is now being threatened by the African Group of UN Member States, Read the rest of this entry…

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What’s the Point of ‘Naming Names’ in International Inquiry? Counseling Caution in the Turn Towards Individual Responsibility

Published on November 11, 2016        Author: 

Introduction

In recent years international commissions of inquiry (‘commissions’) have been drawn into the realm of individual responsibility under international law. This is vividly illustrated by the Human Rights Council’s recent request that the International Commission of Inquiry on Syria investigate events in Aleppo to:

“identify all those for whom there are reasonable grounds to believe that they are responsible for alleged violations and abuses of international human rights law, to support efforts to ensure that perpetrators… are held accountable”.

Similar mandates have been awarded to several other UN inquiries, including on Darfur, Guinea, Libya and the Central African Republic. In practice, most commissions identified suspected individuals confidentially. Exceptionally, the commissions on Guinea and Timor-Leste published names in their public reports.

Making findings of (alleged) individual responsibility is a relatively novel development in the fact-finding context. It reflects an idea that human rights are best protected when individuals are held to account for their acts. But it stands in a certain tension to the quasi/non-judicial nature of these bodies. Similar issues have been considered in relation to truth commissions. Yet the inquiry context poses different challenges. Commissions are not intended to replace criminal trials or function as truth commissions ‘lite’; rather, they may recommend such accountability mechanisms as follow-up. Commissions also face very practical challenges in terms of time pressures, resource limitations and, increasingly, a lack of access to the territories of concerned states, all of which can impede their investigations.

The move towards the identification of individuals is part of a certain trend towards the criminalisation of international inquiry. In this post, we would like to investigate to what extent this is helpful. We  discuss some normative and methodological questions arising from individualised accountability and proposes some possible ways forward. Read the rest of this entry…

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How the Awareness Criterion for Establishment of Dispute is Antithetical to Judicial Economy

Published on November 10, 2016        Author: 

The International Court of Justice recently in the case concerning the Negotiations relating to Cessation of the Nuclear Arms Race and Nuclear Disarmament ruled that it lacked the necessary jurisdiction, due to the absence of a ‘legal dispute’ between the parties. The Republic of Marshall Islands had sued the nuclear world powers (the application was admitted only against the UK, India and Pakistan) for non-compliance with the treaty obligation and customary law obligation to pursue in good faith, and bring to a conclusion, negotiations leading to nuclear disarmament and cessation of the nuclear arm race at an early date. It is the first time in the history of the ICJ that it has refused jurisdiction on the grounds of the absence of a dispute, underlining a further move towards increasing formalism and positivism of the international court.

The court has defined legal dispute as “a disagreement on the point of law or fact, a conflict of legal views or of interests” between the contending parties. The Republic of Marshall Islands rooted the existence of a dispute between the parties in the “positive opposition” by the Respondent States in the present proceedings, and their engagement in a conduct of “quantities build-up” and “qualitative improvement” of their nuclear arsenal.

However, to the dismay of much of the international community, the majority in this case adduced an additional subjective limb of the ‘awareness’ of the Respondent regarding the claims of the Applicant, holding it quintessential to establish a legal dispute between the parties. Paragraph 38 of the judgment states:

“a dispute exists when it is demonstrated, on the basis of the evidence, that the respondent was aware, or could not have been unaware, that its views were ‘positively opposed’ by the applicant”.

The introduction of the ‘awareness’ criterion for the establishment of a dispute not only goes against the jurisprudential constante of the Court to adjudicate the existence of a dispute on an objective basis, but also severely undermines judicial economy and sound administration of justice. The formalistic requirement of ‘awareness’ can be met by merely instituting a fresh application on the same grounds against the Respondent, who would then be aware of the dispute and contention of the Applicant as a result of the previous dismissed suit. Read the rest of this entry…

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After Trump: China and Russia move from norm-takers to shapers of the international legal order

Published on November 10, 2016        Author: 

The Western media hardly reported that on Tuesday 8th November 2016, the Chinese Premier, LI Keqiang, visited Russia. Maybe the date of the visit (the day of the de facto election of the US President) was chosen to convey a message. The deepening Chinese-Russian partnership seeks to work towards an alternative to what is perceived by the leaders of those two powers to be a US-dominated world order. It is plausible that an unpredictable, inexperienced, and undiplomatic US President will contribute to a weakening of that order. It is also likely that all recent moves will entail some changes in international law.

Let us recapitulate the latest official statements. On the official English-language website of the Chinese government, the Chinese Premier commented yesterday’s meeting as follows: “China−Russia cooperation is not only beneficial to the two sides, but also to regional and world peace, stability, development, and prosperity.”

A more detailed exposition of this view was offered by Ms FU Ying, the co-chairperson of the Foreign Affairs Committee of the National People’s Congress of the People’s Republic of China, and the current vice minister of the Foreign Ministry of the People’s Republic of China. She gave a speech at a meeting of a Russian intellectual elite-discussion circle (the “Valdai Club”) which was quickly published in China Daily − European Weekly of October 28 – November 3, 2016, entitled “Major Countries Need to Build Trust”.

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Remaking Globalization for the Local: The Real Search for Equality and Diversity in International Law

Published on November 9, 2016        Author: 

From Western liberal democracies in the United States and the European Union, to historically democratic developing countries such as the Philippines, ignored, disenfranchised, and disempowered local communities emphatically made themselves heard in elections and referenda around the world.  For better or for worse, the international economic order will be remade, somehow.  It would be specious and condescending to merely say that this is the rise of “populism” without truly understanding the concerns of local communities who have driven electorates all over the world to reject any form of the “establishment” – whether they be traditional politicians and parties, State apparatuses, international organizations, mainstream media, or multinational corporations.

The supranationalist structures of modern international law’s prominent institutions – the United Nations (UN), the Washington Consensus behemoths such as the World Bank (WB) and the International Monetary Fund (IMF), the World Trade Organization (WTO), the European Union (EU), among others – are premised on deepening inter-State cooperation while still ensuring full respect for the basic UN Charter of the “principle of sovereign equality” of all States. However, the actual power and felt impact of these global institutions on the daily modern lives of individuals, groups, and local communities reveals serious fissures that expose an obvious imbalance between the terms of international cooperation and States’ sovereign equality – from the micromanagement of Greek agencies by EU fiscal managers and inspectors during the worst nadir of the EU’s financial crisis; the enforced austerity and structural adjustment programs of World Bank technocrats harnessing the leverage of the Bank’s conditionality lending to developing countries; the loss of jobs and social dislocations caused to communities throughout manufacturing states in the United States of America when multinational corporations move operations offshore to China or Mexico; as well as the drastically increased competition for resources and the rise in challenges to religious, social, ideological and group identity posed by cleavages within multicultural societies emerging from formerly hermetic communities now overrun by refugees and other immigrants fleeing political persecution, climate change-related natural disasters, and other humanitarian crises.

Restive “Westphalian” political elites push back against the seeming tyranny of the international system and its global institutions, in order to increasingly assert the sovereign prerogative of states and their supposed ‘independence’ from any form of international governance that ultimately erodes any of these elites’ real bases of power. The recent rise of populist, anti-establishment, anti-trade, and anti-internationalist leaders throughout established democracies – from France’s Marine Le Pen, the United States’ Donald Trump and (to a certain extent) Bernie Sanders, the United Kingdom’s Nigel Farage, the Philippines’ Rodrigo Duterte, Venezuela’s Hugo Chavez, among others – is no coincidence. ‘Silent’, faceless, and individually powerless, electoral majorities are clearly voting for leaders who project themselves as best able to roll back the worst excesses of inequality, insecurity, and uncertainty faced by households from an (actual or imagined) unrestrained international order. The rise of an unstable, deep populism throughout liberal democracies around the world does not only express what IMF Managing Director Christine Lagarde calls “a groundswell of discontent” against globalization, but rather, a return to a much harder ‘Westphalian’ version of State sovereignty insulated from the common interests and shared concerns of this century’s community of nations forged and united in the aftermath of the First and Second World Wars.

Read the rest of this entry…

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Quasi-Judicial Dialogue for the Coherent Development of International Law

Multilateral Development Banks have established international accountability mechanisms over the last 25 years in order to offer private individuals or groups a process through which they can demand the redress of grievances caused by the banks’ projects. Accountability mechanisms are often composed of experts appointed by each bank’s Board of Directors. The mechanisms generally have a compliance review function, with or without a problem-solving function. With their different mandates, these quasi-judicial bodies have, just like judicial bodies, proliferated in a process that can be deemed “quasi-anarchic“. This post explores a recent project in Kenya presented simultaneously before two accountability mechanisms, and argues that accountability mechanisms’ “quasi-judicial dialogue” can constitute a source of inspiration for the coherent development of international law.

Two Accountability Mechanisms, Two Mandates

As judicial and quasi-judicial bodies participate in the development of international law, there is a risk of incoherence in their decisions with consequences such as unpredictability, inequalities or forum-shopping, which would endanger the international legal system (see Jonathan I. Charney, Is International Law Threatened by Multiple International Tribunals?). Incoherence may become even more acute for Multilateral Development Banks’ accountability mechanisms as they confront very similar factual scenarios, especially in the case of co-financing where parties affected by an investment may seize more than one accountability mechanism, just like in the Kenya Electricity Expansion Project presented before the World Bank and the European Investment Bank’s accountability mechanisms.

Indeed, there are four important differences between the mandates of the World Bank Inspection Panel (hereinafter the Panel) and the European Investment Bank’s Complaints Mechanism. In all four aspects, the World Bank’s policy is more restrictive than the European Investment Bank’s (hereinafter EIB). Read the rest of this entry…

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Trumpocalypse Now

Published on November 9, 2016        Author: 
Chappatte, The New York Times

Chappatte, The New York Times

Good morning, world!!! The Donald seems to have just grabbed the United States of America by her you-know-what. And so you, dear reader, are now thinking the unthinkable – oh how I miss the age of George W. Bush, a statesman, gentleman and a scholar (who apparently voted neither for her, nor for him). And you’re thinking – will he actually lock her up? Will that wall get built? Will Mexico pay? Will Muslims be prohibited from flying? Will, after everything, Jim Comey stay on as FBI Director? Will Nigel Farage emigrate to the US and become a cabinet secretary of some kind (silver linings etc.)? And you’re thinking – OMG how will Trump redecorate the White House, OMG Melania will be the First Lady, and OMG that orange guy is going to get the nuclear codes, seriously, is this s*!t for real? (Oh yes, it’s real.)

And, lastly, you’re thinking, what’s gonna happen to the international law project now – shall we overcome? What about the Paris Agreement? What about NAFTA? What about torture and basic human rights? What about the rule of law in America and abroad? Comments open below for any words of despair, wisdom or solace. In the meantime, I can highly recommend this series of posts by Ben Wittes on surviving a Trump presidency (here, here, and here). Good luck to us all – let’s now collectively go and watch a cat video or something to make the bad, bad man go away, at least until January.

 

 

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Should Commitments to Implementation Factor into Elections to the Human Rights Council?

Published on November 8, 2016        Author: 

Following the recent celebration of the UN Human Rights Council’s tenth anniversary, one of the key questions for its next decade is how it can play a more effective role in promoting the implementation of human rights standards and norms and its own and other UN bodies’ recommendations. This shift is critical given the serious deficiencies in implementation, despite the former UN Secretary General Kofi Annan’s call almost 15 years ago for a focus on the ‘implementation of the commitments we have made’ in an ‘era of commitment and implementation’. The recent Universal Rights Group Glion III report points to ‘important signs that UN Member States are increasingly turning their attention to the question of implementation, and how best to support it’ including within the Council. Recently, the President of the Council remarked that the Universal Periodic Review process holds ‘great potential to lead the charge’ in this regard. Tomorrow, the Council’s UPR Working Group will hold a half day panel discussion on ‘national reporting processes and structures’ as a key means to achieving implementation.

On 28 October, the UN General Assembly held elections for 14 new vacancies in the Human Rights Council. In this post, I ask whether and how the election process could provide a further lever to the burgeoning implementation project within the Council. I use the example of the UK’s recent re-election to illustrate how a deeper connection between implementation and election to the Council could be made, particularly through pledges to establish national implementation and follow-up mechanisms.

Expectations of Council Members

In 2006, the General Assembly in Resolution 60/251 outlined the requirements for membership of the Council as: (1) ‘the contribution of candidates to the promotion and protection of human rights’ (2) the submission of ‘voluntary pledges and commitments made thereto’ (4) the ‘uphold[ing of] the highest standards in the promotion and protection of human rights’ (5) ‘full[] cooperat[ion] with the Council’ and (6) agreement to ‘be reviewed under the universal periodic review mechanism during their term of membership’. The Resolution also indicated that the commission of gross and systematic human rights violations could result in the suspension of membership. Read the rest of this entry…

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Author’s Response: Human Rights Obligations of Non-State Armed Groups

Published on November 7, 2016        Author: 

First of all, I would like to extend my sincere thanks to Jonathan Horowitz, Cordula Droege, and Marco Sassoli for taking the time to read my book and to engage with its arguments. All three discussants raised a number of interesting questions and although I cannot address them all here due to space limitations, they raised a number of issues that I will continue to think through and develop further. For the purposes of this post I have chosen to focus on four overarching topics: the challenge to State sovereignty posed by the regulation of armed group activity; the question of how human rights law obligations can be applied to non-State armed groups; the consideration of armed groups not party to a non-international armed conflict; and the question of compliance.

Before proceeding, however, I would like to flag a few issues. Although I argue that human rights law obligations can, and should, be applied to armed groups in certain situations, the State remains the original duty bearer. The fact that the State’s obligations are the starting point act as a safeguard to ensure that the State cannot rely upon the application of human rights obligations to armed groups to circumvent its own responsibilities (see the ‘respect, protect, fulfil’ framework discussed in the introductory post). I should also note that I regard the application of human rights obligations to armed groups as necessary but not ideal. In normal situations the State remains the appropriate guarantor of human rights. It is only in exceptional circumstances that efforts should be made to ensure that human rights are protected to the extent possible by extending obligations to armed groups. Finally, Sassoli makes an interesting point regarding the gradated context-dependent application of customary international human rights law. This appears sensible, and is in keeping with the approach to treaty law presented in the book; it requires further consideration. Read the rest of this entry…

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