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Home International Organisations Archive for category "United Nations"

Kosovo’s Membership in the PCA: Some comments on Professor Zimmermann’s post

Published on April 13, 2016        Author: 

It was nice to read Professor Zimmermann’s post on the issue of membership of Palestine and Kosovo in the Permanent Court of Arbitration (PCA), as this matter should get more attention from the community of international lawyers. I have already dealt with some of the relevant legal issues in an ESIL Reflection of 11 March 2016 which Professor Milanović has kindly referred to in a comment to Professor Zimmermann’s post. I would like to use this opportunity to engage with some issues raised by Professor Zimmermann, namely: whether the Netherlands should have raised proprio motu the issue of Kosovo’s accession to the 1907 Convention; whether there has been an ‘entente ulterieure’ among the member States of the PCA; what are the powers of the PCA Administrative Council and what is the value of its decision of 4 January 2016, and; what is the way forward concerning Kosovo’s accession to the 1907 Convention.

Calling a meeting of the PCA Administrative Council proprio motu

There was no need for the Netherlands as State depositary to raise proprio motu the matter of Kosovo’s accession to the 1907 Convention within the framework of the PCA Administrative Council. Any State who had an issue with Kosovo’s accession could have called for a meeting of the Administrative Council, even at short notice, like Serbia did, albeit not being a party to the 1907 Convention. Also, it must be noted that by the time of the 4 January 2016 meeting of the PCA Administrative Council, only three out of the 116 Member States of the PCA, namely Russia, Serbia and Mexico seemed to have raised an issue concerning Kosovo’s membership in the PCA. Finally, given that more than half of the member States of the PCA recognize Kosovo as an independent State, there was no need for the Netherlands to raise this issue proprio motu.

Entente ultérieure among PCA member States

Contrary to what Professor Zimmermann claims, there has been no ‘entente ultérieure’ along the lines of Article 60 of the 1899 Convention and Article 94 of the 1907 Convention. The December 1959 agreement among the PCA member States simply authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA or whose membership position was unclear. The aim was to increase the membership of the PCA. The document to which Professor Zimmermann refers to as ‘UN support’ is a Study prepared by the Secretariat in 1968 concerning the succession of States to multilateral treaties. Read the rest of this entry…

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A New Theory for Enforcing ICJ Judgments? The World Court’s 17 March 2016 Judgments on Preliminary Objections in Nicaragua v. Colombia

Published on April 6, 2016        Author: 

The International Court of Justice simultaneously issued two intriguing judgments on 17 March 2016, both involving applications filed by Nicaragua against Colombia, and both of which have some nexus to the Court’s 19 November 2012 Judgment in Territorial and Maritime Dispute (Nicaragua v. Colombia). To recall, the Court in its 2012 Judgment had affirmed Colombia’s sovereignty over seven islands, drawn a single maritime boundary delimiting the continental shelf and exclusive economic zones of Nicaragua and Colombia, and rejected Nicaragua’s request to have Colombia declared in breach of international law for allegedly denying Nicaragua’s access to natural resources to the east of the 82nd meridian. (2012 Judgment, dispositif, para. 251)

Thereafter, Nicaragua instituted two Applications on matters appearing to flow from, but alleged to be extraneous to, the Court’s 2012 maritime delimitation Judgment. In its 2013 Application in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) [hereafter, “Application on Sovereign Rights and Maritime Spaces Violations”], Nicaragua alleged, among others, that Colombia violated Nicaragua’s rights pertaining to maritime zones defined under the Court’s 2012 maritime delimitation Judgment and that Colombia had also breached the obligation not to use or threaten to use force. On the other hand, in its 2013 Application in Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) [hereafter, “Continental Shelf beyond 200 NM Application”], Nicaragua requested the Court to declare “the precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to them beyond the boundaries determined by the Court in its Judgment of 19 November 2012” [hereafter, “first Request”], as well as “the principles and rules of international law that determine the rights and duties of the two States in relation to the area of overlapping continental shelf claims and the use of its resources, pending the delimitation of the boundary between them beyond 200 nautical miles from Nicaragua’s coast.” [hereafter, “second Request”] (Continental Shelf beyond 200 NM Application, para. 12).

At the core of Colombia’s preliminary objections in both cases was the argument that the Court had already resolved the alleged matters in the 2012 Judgment, and accordingly, incidents related to these matters thereafter ought to be enforced under the canonical rule in Article 94(2) of the UN Charter (“[i]f any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”). Nicaragua’s theory was essentially based on the characterization of fresh disputes with Colombia that may have some factual/legal nexus with the 2012 Judgment, but were, ultimately, left undetermined or outside the purview of the 2012 Judgment. It is highly interesting to see how this theory mainly prevailed in the Court’s 17 March 2016 Judgment on Preliminary Objections in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) [hereafter, “Sovereign Rights and Maritime Spaces Violations Judgment on Preliminary Objections”] and its 17 March 2016 Judgment on Preliminary Objections in the Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) [hereafter, “Continental Shelf beyond 200 NM Judgment on Preliminary Objections”]. The Court’s unprecedented acceptance of jurisdiction for certain claims in both of these Nicaraguan applications certainly provoke new lines of inquiry on lines of demarcation between issues of enforcement of the Court’s judgments, and related but separate claims that could be instituted fresh with the Court, without triggering the rule on enforcing ICJ judgments through the more political forum of the Security Council. How was the Court able to assume jurisdiction in these cases, and what do these decisions bode for the settled rule on the finality of the Court’s judgments?

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The United Nations Working Group on Arbitrary Detention decision on Assange: ‘ridiculous’ or ‘justifiable’?

Published on February 9, 2016        Author: 

The UN WGAD Assange decision has been met with general ridicule from British officials, legal academics and the press. This piece seeks to bring some balance to the coverage on this decision, which consistently fails to outline the arguments which persuaded the Working Group.

The central argument of Assange’s lawyers’ proceeds on the basis that his confinement in the Ecuadorian embassy ‘cannot … be characterized as volitional’ (para 13). He is not free to leave, because he is protecting himself from the violation of other human rights: ‘the only way for Mr. Assange to enjoy his right to asylum was to be in detention’ (para 11). If Assange were to leave he would be arrested in the UK and extradited pursuant to a European Arrest Warrant (EAW) issued by Sweden. Consequently, he would expose himself to the risk of a ‘well founded fear of persecution’ were he to be extradited to the US from Sweden (para 12). In the words of Assange’s lawyers:

The source submits that Mr. Assange was deprived of his liberty against his will and his liberty had been severely restricted, against his volition. An individual cannot be compelled to renounce an inalienable right, nor can they be required to expose themselves to the risk of significant harm. Mr. Assange’s exit from the Ecuadorian Embassy would require him to renounce his right to asylum and expose himself to the very persecution and risk of physical and mental mistreatment that his grant of asylum was intended to address. His continued presence in the Embassy cannot, therefore, be characterised as ‘volitional’ (para 13).

Assange’s lawyers moves on to the failure of the Swedish authorities to pursue their investigation through less restrictive means. Simply put, the Swedish authorities have ‘not established a prima facie case’ and have refused ‘unreasonably and disproportionately’ to ‘question him through alternative means offered under the process of mutual assistance’ (para 13). Furthermore, they argue that Assange has been deprived of the opportunity to know the case against him, to provide a statement regarding the charges against him, and thus to defend himself against the charges. This combination of factors thus also bears upon the principle of audi alterum partem and the presumption of innocence. The cumulative result of all of these conditions, and the failure to guarantee non-refoulement to the US, have resulted in a situation in which, on Assange’s argument, he has in effect been arbitrarily detained. Read the rest of this entry…

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Julian Assange and the UN Working Group on Arbitrary Detention

Published on February 5, 2016        Author: 

We should have known. Once Julian Assange publically stated that he would surrender to the UK authorities if the United Nations Working Group on Arbitrary Detention found against him, it was obvious that the Working Group had done no such thing. And its opinion was released today, to widespread derision among the legal community (at least as expressed by my twitter feed).

To get the obvious issues out of the way: the Working Group is a UN body but it is not, and does not represent, ‘the United Nations’. Instead, it is one of the ‘thematic special procedures’ of the UN Human Rights Council, which is itself a political body established by and reporting to the UN General Assembly. The Working Group was originally established by the Commission on Human Rights, the Human Rights Council’s predecessor, and had its mandate renewed, most recently by the Human Rights Council in 2013. In contrast to the HRC, however, the Working Group is a body of independent experts serving in their individual capacities. It presently has five members: from South Korea, Mexico, Benin, Australia and the Ukraine.

The Working Group is tasked with investigating cases of deprivation of liberty imposed arbitrarily, with reference to the relevant international standards set forth in the Universal Declaration of Human Rights, as well as to the relevant international instruments accepted by the States concerned. It can consider individual communications and, having done so, render opinions as to whether an arbitrary detention has or has not been established and make recommendations to the State concerned.

What all this means is that the Working Group cannot issue binding decisions (contrary to what Julian Assange’s legal team are arguing), hence their description as ‘opinions’. Nor can it provide authoritative interpretations of any human rights treaty (having not been granted that role by the parties to any such treaty). The most that can be said is that States are under a duty to take ‘due consideration’ to Working Group’s recommendations, which is a rather weak obligation.

Moving from the general to the particular, the Working Group gave its opinion in response to a communication made on behalf of Julian Assange. It will be recalled that Mr Assange has been in the Ecuadorian embassy in London since 19 June 2012, when he skipped bail following the decision of the UK Supreme Court on 30 May 2012 to permit his extradition to Sweden under a European Arrest Warrant. The communication was made on 16 September 2014 and was passed on to the Governments of Sweden and the United Kingdom, which replied, respectively, on 3 and 13 November 2014. The opinion was adopted on 4 December 2015, over a year later, and was published on 5 February 2016, which does not indicate an enormous sense of urgency. Following the Working Group’s rules, one of the members of the Working Group recused herself from this deliberations as she shared the same nationality as Mr Assange. Another, Mr Vladimir Tochilovsky, dissented and produced a short individual dissenting opinion. Read the rest of this entry…

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UN Peace Operations: Tracking the Shift from Peacekeeping to Peace Enforcement and State-Building

Published on September 2, 2015        Author: 

On June 16, the UN secretary General’s High-Level Independent Panel released its eagerly awaited review of UN-mandated peacekeeping: ‘Uniting our Strengths for Peace’. A comprehensive assessment of the UN’s evolving role in conflict management and a detailed set of reforms to its peacekeeping architecture, the report has already generated thoughtful analysis, with many observers highlighting the Panel’s principal conclusion that “lasting peace is achieved not through military and technical engagements, but through political solutions” (Executive Summary). This post examines three significant trends in peacekeeping mandates – the use of force, state-building and criminal jurisdiction – which will likely remain contested aspects of UN-mandated conflict resolution going forward. Against the backdrop of the report’s main findings, it argues that the UN’s large-scale operations increasingly blur the lines between political mediation and classical peace-keeping on the one hand, and peace-building, peace enforcement and state-building on the other.

As is well known, peacekeeping missions have operated in increasingly hostile environments since the end of the Cold War. Beginning with the Balkans, Rwanda and Somalia in the 1990s, peacekeepers have often been deployed to areas with little or no peace to keep, while taking on a continuously expanding set of peace-building tasks. This trend has only intensified in the last few years, starting with the UN’s longstanding mission in the Democratic Republic of Congo (MONUSCO), its revamped mission in South Sudan (UNMISS), as well as newly established missions in Mali (MINUSMA) and in the Central African Republic (MINUSCA).

Yet, despite its expanding role in conflict-management, a striking feature of recent UN operations has been the Security Council’s practice of enshrining the classic principles of peacekeeping into mission mandates. Starting with the 2013 renewal of MONUSCO’s mandate, the Security Council has consistently re-affirmed the ‘trinity of virtues’ – impartiality, host state consent and non-use of force beyond self-defence and defence of the mission mandate – in the preambles of its largest peacekeeping operations (DRC: 2013, 2014, 2015; Mali: 2013, 2014, 2015; CAR: 2014, 2015; South Sudan: 2014, 2015). Although their status under international law remains contested, the three classic principles are grounded in an (almost) by-gone era of conflict-management, where UN peacekeepers monitored mutually agreed cease-fires.

Read the rest of this entry…

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Data Protection in International Organizations and the New UNHCR Data Protection Policy: Light at the End of the Tunnel?

Published on August 31, 2015        Author: 

In May 2015 the United Nations High Commissioner for Refugees (UNHCR) published its Policy on the Protection of Personal Data of Persons of Concern to UNHCR (Data Protection Policy). The Policy may seem to be merely an internal guidance document addressed to the staff members of an international organization. However, as a subsidiary organ of the United Nations, established by the General Assembly pursuant to Article 22 of the UN Charter, working for millions of refugees and with thousands of other organizations active in the field of protection and assistance, UNHCR bears a certain responsibility when it sets internal standards which inevitably also have an external impact. Moreover, the Policy highlights the growing importance of data protection in international law, particularly for the work of international organizations.

Against this background, our blog addresses some interesting underlying legal issues of public international law raised by the Policy. In particular, it discusses the relevance of data protection to the work of international organizations, including UN agencies, and what level of data protection is appropriate and required for international organizations in general and UNHCR in particular, taking into account the humanitarian context in which the organization often operates. Read the rest of this entry…

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The Use of Force Against People Smugglers: Conflicts with Refugee Law and Human Rights Law

Published on June 22, 2015        Author: 

On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.

In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.

The Likely Need to Have Forces Close to the Libyan Shore

Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.

An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.

Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Read the rest of this entry…

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What Lies Beneath the ‘G’ Word? Genocide-Labelling and Fact-Finding at the UN

Published on May 28, 2015        Author: 

In late 2013, the Special Adviser on the Prevention of Genocide warned that “there is a risk of genocide” in the Central African Republic (CAR). A year later, with thousands dead and hundreds of thousands displaced, a UN-mandated Commission of Inquiry (CoI) determined that genocide had not occurred because “the threshold requirement to prove the existence of the necessary element of genocidal intent ha[d] not been established…” (Executive Summary). Their answer seems clear, and yet this post will argue the Commission may have reached the wrong conclusion. In doing so, it will also draw attention to discrepancies between the UN’s classifications of genocide and raise questions about the powers of fact-finding bodies more generally.

It should be noted at the outset that the CoI left little doubt that serious crimes had been committed in CAR. Established at the request of the Security Council, the Commission had a mandate to investigate violations dating back to January 2013 when Séléka fighters began their march on CAR’s capital, Bangui. Though some of the worst violence took place on its watch, the Commission could not “establish with any degree of accuracy the number of people who were killed in the conflict.” Conceding that the available estimates “fail to capture the full magnitude of the killings that occurred”, it nevertheless concluded that “all the parties were involved in serious violations of international humanitarian law and gross abuses of human rights including rape and other gender based sexual offences and violations.”

What about genocide?

The CoI’s analysis of this key question begins with the applicable law, where it notes that genocide requires the actus reus (‘specific acts committed against specific groups’), the mens rea of specific (genocidal) intent, and – in line with the Rome Statute’s Elements of Crimes – ‘a manifest pattern of similar conduct directed against the targeted group’ (para. 450). Against this backdrop, the report establishes that the genocide label would prima facie apply only to acts committed by the Christian anti-balaka against CAR’s Muslims. Crucially, genocide would not be applicable to attacks committed by Muslims against Christians. The Commission then assesses the case law of several tribunals in order to distinguish ethnic cleansing from genocide.

This is where the legal analysis takes a perplexing turn. Before it has a chance to examine the legal elements of genocide, the CoI says (para. 452):

…the information available to it reveals repeated instances of crimes against humanity amounting to the fact pattern of ethnic cleansing committed by the anti-balaka in the areas in which Muslims had been living. In terms of criminal responsibility, however, the Commission is of the view that these acts of ethnic cleansing would best be prosecuted with (sic) under the rubric of crimes against humanity, which is the crime category that is explicitly recognized in the Rome Statute and in the relevant legislation of the CAR… [T]he facts of the situation indicated that… crimes against humanity… capture the full essence of the policy of ethnic cleansing that was pursued.

There are two problems with this conclusion. Read the rest of this entry…

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Protecting Europe or Irregular Migrants? The (Mis)use of Force in the Mediterranean

Published on May 15, 2015        Author: 

On Monday 11 May Federica Mogherini, the High Representative of the European Union for Foreign Affairs and Security Policy, officially briefed the UN Security Council on the current crisis in Europe. The crisis relates to the sharp increase of fatalities of individuals trying to cross the Mediterranean in order to reach European shores. The International Organization for Migration (IOM) reports 1.800 deaths since the beginning of 2015, more than 800 of them during a single incident in April. Deaths in the Mediterranean are an annually recurring tragedy triggering public outcry in spring that dwindles down as less individuals attempt the journey due to the harsher conditions at sea during the colder months. However, 2015 is likely to become the deadliest year. According to Peter Sutherland, Special Representative of the UN Secretary-General for International Migration, these numbers represent a 20-fold increase over the same period last year. The surge in fatalities is largely attributed to the discontinuation of the search and rescue operation Mare Nostrum by the Italian navy and its replacement by the smaller scale operation Triton. The latter is coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and focuses on border control and surveillance rather than search and rescue (see also here).

To be sure, this demands action. An ‘exceptional and coordinated response’ is required to deal with the ‘unprecedented situation’, Ms Mogherini told the Security Council. On 23 April the European leaders came together for an emergency summit to devise a plan of action to respond to the tragedy. The action plan, presented to the Security Council on Monday, promises a strengthened European presence at sea, announces increased efforts to prevent irregular migration and declares the fight against human traffickers a priority. To crack down on human traffickers Europe pledges to undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers. This course of action is not without obstacles. The vessels in question, prior to their use, are mostly situated in Libya, but surely outside Europe. Quite inconspicuous at first sight, Europe’s proposal therefore requires using military force on the territory of another state and touches upon a bedrock rule of international law: the prohibition of the use of force. Read the rest of this entry…

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A UN Special Rapporteur on Privacy – Why Now?

Published on March 24, 2015        Author: 

As the 28th ordinary session draws to a close this week, the UN Human Rights Council is expected to consider a proposal to create a new UN Special Rapporteur on the right to privacy. The draft resolution, spearheaded by Brazil and Germany and supported by a broad group of states, is the latest of a series of initiatives to bring the right to privacy firmly within the UN human rights agenda.

If established, the Special Rapporteur would provide much-needed leadership and guidance on developing an understanding of the scope and content on the right to privacy, as well as strengthening the monitoring of states and companies’ compliance with their responsibility to respect and protect the right to privacy in their laws, policies and practices. In the last two years, the UN General Assembly, the UN High Commissioner for Human Rights and existing special procedure mandate holders have all recognized the pressing need to provide continuous, systematic and authoritative guidance on the scope and content of the right to privacy, particularly in light of the challenges of modern communications.

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