magnify

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.

Read the rest of this entry…

Print Friendly
 
Tags:

Legality, Legitimacy, and Member State Cooperation in International Organisations

Published on March 24, 2015        Author: 

Is an international organisation’s (IO’s) compliance with international law essential to its legitimacy? And, even when a link between compliance and legitimacy obtains, is member state cooperation with the organisation contingent on its legitimacy? Might the answer to either of these questions vary systematically by organisational type?

In a rich and important contribution to understanding the dynamics of a relatively young area of international law, Professor Kristina Daugirdas offers a transnational legal discourse framework to understand why IOs comply with international law and the vital role that the Draft Articles on the Responsibility of International Organizations (DARIO) can play in that process. She supplements this with a granular, compelling account of the theory in action in the transnational struggle to hold the UN to account for the cholera epidemic in Haiti.

As I understand it, Kristina’s account of the IO accountability process (exemplified by the Haiti case) goes something like this:

  •  The legitimacy of an IO depends on its compliance with its international legal obligations.
  • By bringing clarity and specificity, the DARIO expand the quality and quantity of transnational legal discourse on IO responsibility, catalyze clarity on the primary obligations of IOs, and therefore tighten the link between IO compliance and legitimacy.
  • The legitimacy of an IO is essential to the IO’s success in generating the cooperation and support of its member states.
  • IOs will act so as to ensure that cooperation and support.
  • In light of (1)-(4), the DARIO can sharpen and enhance IOs’ incentives to comply with and uphold both the primary and secondary rules of international law.

My comments focus on step (1) – the tie between legality and legitimacy, and step (3) – the claim that from IO legitimacy, member state cooperation follows. Both are crucial to Kristina’s theory and to her assertion that IOs are likely “even more sensitive” to transnational discourse than are states. However, I suspect that IOs may vary considerably in the degree to which they conform to either step. Understanding that variance and what explains these relationships when they do obtain is essential to grasping the scope of the theory and its implications for the role of the DARIO. Read the rest of this entry…

Print Friendly
 

IO Reputation and the Draft Articles on IO Responsibility

Published on March 24, 2015        Author: 

In 2011, the International Law Commission adopted a set of draft articles on the responsibility of international organizations. Like the ILC’s draft articles on state responsibility, the IO Responsibility Articles seek to clarify both the circumstances that establish a breach of an international obligation and the consequences of responsibility, including the obligation to make full reparation for injuries caused by such violations.

The IO Responsibility Articles have come in for a lot of criticism from legal scholars. José Alvarez, for one, has described the ILC’s effort as ‘at best premature and at worst misguided’. In his view, the IO Responsibility Articles are premature, partly because there is not nearly enough practice to warrant their codification, and partly because the primary norms of international law that bind IOs remain unsettled. In particular, there’s considerable disagreement on how and when IOs are bound by customary international law and by treaties to which they are not parties.

Scholars—including Jan Klabbers, who is participating in this online symposium—have also questioned whether the IO Responsibility Articles would have any practical effect. They rightly note that the IO Responsibility Articles have elicited no substantial support from states and IOs. Although the ILC’s draft articles have often formed the basis for treaty negotiations, there’s no chance that the IO Responsibility Articles will be transformed into a treaty anytime soon. Furthermore, except in rare cases, neither international nor national courts can assess whether IOs have violated international law. Under these circumstances, one might be forgiven for thinking that the IO Responsibility Articles can safely be ignored.

I am more optimistic about the IO responsibility articles; I argue that they are neither premature nor feckless. In fact, the IO Responsibility Articles can help to clarify the primary international law norms that bind IOs. The IO Responsibility Articles may also spur IOs and their member states to prevent violations and to address violations promptly if they occur. And that’s so even if the IO Responsibility Articles never become a treaty and even if no new dispute-settlement mechanisms are developed. Read the rest of this entry…

Print Friendly
 

The Power of Citizenship Bias

Published on March 23, 2015        Author: 

Cross-posted on Lawfare.

Following up on my post from last week on the report of the Intelligence and Security Committee (ISC) of the UK Parliament, which inter alia recommended that British law for the first time introduce distinctions between citizens and non-citizens for the purpose of regulating electronic surveillance, I’d like to briefly comment on another relevant development. Amnesty International last week also published the results of a major public opinion poll conducted in 13 countries, in which 15,000 respondents were surveyed on a number of questions regarding surveillance. The upshot of the poll is that there is strong opposition to US mass surveillance programs in all of the countries surveyed, and this is also how Amnesty chose to present the results (Amnesty’s press release is available here; the full results are available here; an analytical piece by Chris Chambers, one of the researchers on the project, is available in The Guardian).

What I found most interesting about the poll are the responses regarding the question whether the permissibility of surveillance should depend on the citizenship of the target. As Chris Chambers explains:

Are people more tolerant of the government monitoring foreign nationals than its own citizens?

Yes. In all surveyed countries, more people were in favour of their government monitoring foreign nationals (45%) than citizens (26%). In some countries the rate of agreement for monitoring foreign nationals was more than double that of citizens. For instance, in Canada only 23% believed their government should monitor citizens compared with 48% for foreign nationals. In the US, 20% believed their government should monitor citizens compared with 50% for foreign nationals. These results suggest the presence of a social ingroup bias: surveillance is more acceptable when applied to “them” but not to “us”.

general attitudes to surveillance

 

In every country, people were more tolerant of surveillance directed toward foreign nationals than toward citizens. Illustration: Chris Chambers

We can also look at this ingroup bias in a different way – by specifically counting the number of people who disagreed with government surveillance of citizens while at the same time agreeing with surveillance of foreign nationals. In most countries, fewer than 1 in 4 people showed such a bias, with Sweden showing the least favouritism toward citizens (approximately 1 in 9). However, the US stands apart as having the highest ingroup bias – nearly 1 in 3 US respondents believed their government should monitor foreign nationals while leaving citizens alone.

ingroup bias

The US stood out as particularly prone to ingroup bias: favouring surveillance of foreign nationals over citizens. Illustration: Chris Chambers

Read the rest of this entry…

Print Friendly
 
Tags:

This Week: Discussion of Kristina Daugirdas’s “Reputation and the Responsibility of International Organizations”

Published on March 23, 2015        Author: 

Over the next few days, we will be hosting a discussion of Kristina Daugirdas’s article “Reputation and the Responsibility of International Organizations,” which was published in volume 25, no. 4 of the European Journal of International Law (2014). Kristina is an Assistant Professor of Law at the University of Michigan Law School.  The commentaries on her article will be by Tom Dannenbaum (University College London), Jan Klabbers (University of Helsinki), and Paul B. Stephan (University of Virginia). We are grateful to all of them for participating in the discussion.

Print Friendly
 

Human Rights Implementation: Our Shared Responsibility

Published on March 22, 2015        Author: 

After excursions to Interlaken, Izmir and Brighton, Council of Europe states meet again this week, in Brussels, to discuss further reform of the Europe-wide human rights system. Taking their turn to chair the Committee of Ministers of the Council of Europe, the Belgian government has decided to focus attention on the implementation of judgments of the European Court of Human Rights.

Such an emphasis is very much to be welcomed, as it remains the obvious Achilles heel in the human rights system. In its report last year on the ‘Brighton Declaration and Beyond’, the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe (PACE) lauded the Court for its ‘extraordinary contribution’ to the protection of human rights in Europe. It went on, however, to deplore the way states respond to the Court’s judgments, noting that ‘the prevailing challenges facing the Court, most notably the high number of repetitive applications as well as persisting human rights violations of a particularly serious nature, reveal a failure by certain High Contracting Parties to discharge their obligations under the Convention’.

The statistics show the weight of the burden that this is creating. At the end of 2013, there were more than 11,000 unresolved cases pending before the Committee of Ministers (CM) (which has the role, under the Convention of supervising the implementation of the Court’s judgments). The latest CM annual report on the execution of judgments also acknowledges the increasing proportion of unresolved cases which concern systemic or structural issues – just under 1,500 such ‘leading’ cases were still outstanding in December 2013. These cases relate to endemic problems, such as poor prison conditions, violations arising from the restitution of property, the non-execution of domestic court judgments and the excessive length of proceedings, the excessive use of force by state security forces and systemic failings as regards the functioning of the judiciary.

Read the rest of this entry…

Print Friendly
 

Announcements: CfP on Human Rights and the “Forever War”; CfP on Third-World Approaches to Int’l Law

Published on March 21, 2015        Author: 

1.  Call for Papers: Human Rights and the ‘Forever War’—Columbia Human Rights Law Review Symposium. The Columbia Human Rights Law Review (HRLR), in collaboration with the Columbia Law School Human Rights Institute (HRI), is publishing a symposium edition about the relationship between the U.S. ‘War on Terror’, sometimes referred to as the ‘Forever War,’ and human rights law. We invite proposals on topics of your own framing consistent with the symposium’s general purpose of advancing scholarship and critical analysis regarding human rights law and its relationship with international humanitarian law and jus ad bellum during and after the ‘Forever War.’ We are seeking articles that examine both the short-term and long-term challenges that arise from the relationship between the ‘Forever War’ and human rights law, and are particularly interested in papers that seek to strengthen the role of human rights law in institutions and policy decisions worldwide. We invite papers from both scholars and practitioners, and encourage submissions from outside the United States. Individuals interested in publishing should submit a prospectus summary of no more than 1000 words describing the paper’s proposed topic, themes, and research methodologies by no later than April 20, 2015.  HRLR and HRI will select 4–6 papers for presumption of publication. Please submit abstracts to HRLRsubmissions {at} law.columbia(.)edu under the subject line “HRLR Symposium Abstract.”  Visit our website for more information and suggestions for possible themes and issues.

2.  AJIL Unbound, the online-only publication and forum of the American Journal of International Law, which features scholarship and commentary from pre-eminent scholars on developments in international law and international relations, invites submissions for a symposium on Third World Approaches to International Law (TWAIL) by April 30, 2015. See more here.

Print Friendly
Filed under: Announcements and Events
 

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…

Print Friendly
 
Tags: , ,

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…

Print Friendly
 

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…

Print Friendly