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Environmental Rights and the Legal Personality of the Amazon Region

Published on April 24, 2018        Author: 
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There are two recent, noteworthy developments on environmental rights in Latin America. First, an Advisory Opinion of the Inter-American Court of Human Rights (IACtHR), requested by Colombia. Second, a judgment rendered by Colombia’s Supreme Court, interpreting its international obligations.

The IACtHR’s Advisory Opinion

On 15 November 2017, the IACtHR issued Advisory Opinion OC-23/17, responding to Colombia’s request to clarify the meaning of “jurisdiction” in article 1.1 of the American Convention on Human Rights (ACHR). Colombia suggested that a State has “functional jurisdiction” in areas that are environmentally protected by a treaty to which that State is a party (e.g. the Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region, the “Cartagena Convention”). Colombia also asked if State actions that seriously damage the marine environment – constituting the livelihood of island and coastal inhabitants of another State – are compatible with rights to life and human integrity.

The IACtHR did not limit its Opinion to the marine environment or the Cartagena Convention. It confirmed the relation between environmental protection and the realisation of “other human rights” (paras. 35, 47). It held that the right to a healthy environment is established in Article 11 of the San Salvador Protocol and, as such, is included in the economic, social and cultural rights protected by Article 26 ACHR (paras. 56- 57; in the recent Case of Lagos del Campo v. Peru, the IACtHR established a violation of article 26 ACHR for the first time in relation to the right to freedom of association). Apart from references to the environment in indigenous cases, throughthe right to life and the concept of “dignified life” (vida digna)(Case Comunidad Indígena Yakye Axa Vs. Paraguay), the IACtHR never before addressed environmental rights directly.

I will not discuss the IACtHR’s considerations on States’ environmental obligations, elaborated with reference to regional environmental protection treaties, UN Convention on the Law of the Sea, and case-law of the International Court of Justice (ICJ). More interesting is its interpretation of “jurisdiction” for the purposes of State actions that affect the environment. In para. 102 of the Advisory Opinion, the IACtHR establishes that “it is the State in whose territory or under whose jurisdiction activities are realised, that has effective control over these and is in a position to prevent cross-boundary damage from occurring that affects the enjoyment of human rights of individuals outside its territory” (translations from Spanish are mine). This is a significant expansion of jurisdiction under the ACHR, although supposedly reserved for cross-boundary environmental damage.

The circumstances in which Colombia requested the Opinion are also noteworthy. In the request, it referred to effects of big infrastructure projects that could affect inhabitants of the Colombian islands San Andrés, Providencia, and Santa Catalina. The ICJ ruled in 2012, in a territorial and maritime dispute brought by Nicaragua against Colombia, that a great part of marine environment in the Caribbean belonged to Nicaragua. On 16 September 2013, Nicaragua instituted proceedingsagainst Colombia before the ICJ regarding territorial rights to the continental shelf and, on 26 November 2013, Nicaragua filed another applicationagainst Colombia at the ICJ regarding a “dispute [which] concerns the violations of Nicaragua’s sovereign rights and maritime zones declared by the Court’s Judgment of 19 November 2012 … and the threat of use of force by Colombia in order to implement these violations”. The two latter cases are pending.

Prior to Colombia’s request, a big infrastructure project was being developed just off the Caribbean coast of Colombia to expand Cartagena’s port. However, the request doesn’t seek to clarify Colombia’s environmental obligations, but those of other States bordering on the Caribbean. Although no particular State is identified, it seems as if the Santos Government, realising it could not “appeal” the ICJ judgment, sought a different route to curb Nicaragua’s activities in the region.

The Colombian Supreme Court Judgment

Neruda, in Canto General, described the Amazon river thus: “rivers flock to you like birds…big dead tree trunks populate you with perfume, the moon cannot guard or measure you. You move slowly like a planet’s orbit”. García Márquez said, in his essay“[a] reality that doesn’t fit into language”, that reality poses a serious problem for literature because of an “insufficiency of words”. If one describes a river, a European reader can only fathom something the size of the Danube (2,790 km), not the reality of the Amazonas (5,500 km). He concluded that “it would be necessary to create a whole system of new words to encompass the size of our reality”. 

Almost twenty years later, the Supreme Court of García Márquez’ native Colombia heeded this suggestion, at least in legal terms, by attributing legal personality to the Colombian Amazon region (not just the river). In judgment STC4360-2018of 5 April 2018, the Court addressed a claim against State authorities by 25 young people (between 7 and 25 years old), living in cities in the Amazon that would allegedly be worst affected by climate change through deforestation. They argued that their right to “enjoy a healthy environment”, as well as rights to life and health had been violated. A 44% increase in deforestation between 2015 and 2016 (70.074 hectares of the Colombian Amazon) meant that Colombia had violated domestic legislation (Law 1753 of 2015, Development Plan 2014-2018), as well as international obligations assumed by it under the Paris Agreementto reduce the “net rate of deforestation to zero in the Colombian Amazon region by 2020”.

The judgment uses strident language, e.g. in para. 4: “[h]umanity is primarily responsible for [climate change and] its hegemonic planetary position has led to the adoption of an anthropocentric and egoistic model”. In para. 6, it refers to international instruments of “hard and soft law” that have created a “world ecological public order”, specifically mentioning article 12 of the International Covenant on Economic, Social and Cultural Rights, articles 1.1 and 2 of the 1976 Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques, articles 35.3 and 55 of Additional Protocol I to the Geneva Conventions, the Paris Agreement, and the Treaty for Amazonian Cooperation. The Court concludes that Colombian authorities violated their obligations and orders the elaboration of action plans, as well as an “intergenerational agreement” to reduce deforestation and the emission of greenhouse gases, as requested by claimants (paras. 13-14). It adds that authorities have to “fill the void left by the FARC and paramilitaries to assert an active State presence for the conservation of Amazonian territories, reconquered by insurgent groups in the context of the armed conflict” (claimants suggested this as a cause of deforestation; para. 11.3).

The Court establishes that “in order to protect the vital ecosystem for the global future, just as the Constitutional Court declared the Atrato river, the Colombian Amazon region is recognised as an entity, [a] ‘subject of rights’” (para. 14). The Constitutional Court, in judgment T-622 of 2016, para. 9.27, had referred to the necessity to protect the environment “because it regards a living entity made up of other multiple life forms and cultural representations, [that] are subjects of individualizable rights”. It also mentioned, in para. 9.28, the emergence at the international level of a “new socio-legal understanding in which nature and its environment have to be taken seriously, with complete rights. That is, as legal subjects [sujetos de derechos]”. It announced that “the Chamber considers it necessary to take a step forward in the case-law towards the constitutional protection of one of our most important sources of biodiversity: the Atrato river” (para. 9.31).

Both the IACtHR’s Advisory Opinion and the Colombian judgment expand the possibility for environmental legal actions to be brought. The former opens the door for e.g. Colombian nationals to bring cases before the IACtHR against Nicaragua for a violation of their human rights, if such rights are affected by environmental damage caused by actions over which Nicaragua exercises control. Moreover, the Advisory Opinion and the Case of Lagos del Campo v. Peru indicate that the IACtHR, in a future case, can find a violation of the right to a healthy environment under article 26 ACHR, probably in relation to e.g. the right to life or human integrity. The Colombian judgment makes it possible for anyone to claim on behalf of the Colombian Amazon and the Atrato river that its respective rights have been violated (see Rodríguez). Perhaps the “personification of non-humans” is a means to deal with uncertainty, a potential “exploitation” of nature by law (Teubner, Journal of Law and Society, 33(4) (2006), p. 515), or it regards a creative and contingent decision that does not necessarily correspond with any ontological reality (Pottage, Fabricating Persons and Things (2004), p. 3, 10). In any case, as predicted by Georges Canguilhem, the environment seems to have become a “category of contemporary thought” (see my article).

 

What lies beneath? The turn to values in international criminal legal discourse

Published on April 23, 2018        Author: 
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On the 9th of April, the Office of the Prosecutor (OTP) of the International Criminal Court submitted a request for a ruling by the Pre-Trial Chamber on whether the Court has territorial jurisdiction over the deportation of Rohingya people from Myanmar to Bangladesh. This development may impact how the ICC approaches its territorial jurisdiction in future, and raises interesting questions over the legal nature of the crime of deportation. However, the submission also gives rise to questions of a more theoretical nature that relate to the normative basis of international crimes, or more specifically, the acts that constitute them. The Prosecutor’s submission on jurisdiction over deportation into Bangladesh highlights an emerging trend in international criminal law towards identifying and surfacing the individual values or rights underlying international crimes. This coincides with a broader debate on the legal goods protected by these crimes, and invites us to consider the implications of this trend for the communicative function of the law.

Part of the Prosecutor’s submission on jurisdiction in Bangladesh addresses the distinction between the crimes of deportation and forcible transfer. Read the rest of this entry…

 

Announcements: IHL Research Fellow Vacancies; Analysing the Western Sahara Campaign Case; Sufficient Gravity before the International Criminal Court Conference; UN Audiovisual Library of International Law; CfP Taking Stock of Global Constitutionalism;

Published on April 22, 2018        Author: 
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1. Customary IHL: Research Fellow – International Humanitarian Law (Two Positions Available). In the framework of the co-operation between the ICRC and the British Red Cross to update the practice collection of the ICRC’s study on customary international humanitarian law (IHL), the ICRC and the British Red Cross seek to recruit for two Research Fellow positions in the customary IHL research team based in Cambridge/UK. To apply, and for details about the position, please visit the British Red Cross website. For further information, please see here and here. Closing date for applications is Sunday 29 April 2018.  Interviews will take place during the week commencing 21 May 2018. 

2. Analysing the Western Sahara Campaign CaseThe Centre for European and International Legal Affairs (CEILA) is hosting a Lunchtime Seminar (12-2pm) on Thursday 3 May 2018 in Room 313, Laws Building, at Queen Mary, University of London (Mile End Campus). The Seminar is dedicated to a discussion of the CJEU’s recent preliminary ruling in the Western Sahara Campaign Case. The event is free and open to all but there is a registration requirement. A sandwich lunch and light refreshments will be provided. Please register here. The Chair is Dr Anne Thies (Reading University), and speakers are Mr Fernando Castillo de La Torre (Principal Legal Advisor, EU Commission), Professor Pål Wrange (Stockholm University) and Dr Mario Mendez (QMUL)

3. Sufficient Gravity before the International Criminal Court Conference. On 11 May 2018, from 2.00 to 6.30 pm, at the Law School of the University of Westminster, Board Room, 309 Regent Street, London W1B 2HW, a conference on ‘Sufficient Gravity before the International Criminal Court’ will take place. Please see the flyer here. Attendance is free but previous registration is required here. More information can be found here. Read the rest of this entry…

Filed under: Announcements and Events
 

Prosecuting ‘The Beatles’ before the ICC: A Gateway for the Opening of an Investigation in Syria?

Published on April 19, 2018        Author: 
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Calls have been mounting for Alexanda Kotey and El Shafee Elsheikh, two fighters captured by the Syrian Kurds, to be tried in the UK, the US, or at the International Criminal Court (ICC) in The Hague. Kotey and Elsheikh were part of a group of four Islamic State militants known as ‘the Beatles’ (because of their British accents). Although not particularly high ranking within ISIS, the Beatles are infamous for their role in the imprisonment, torture and killing of Western hostages. There is reason to believe that they are responsible for war crimes and crimes against humanity. 

The purpose of this post is to examine the feasibility and propriety of bringing the Beatles before the ICC for trial. Kotey and Elsheikh have been stripped of their British citizenship so as to stop them from re-entering the UK. The UK defence minister, Tobias Ellwood, is however arguing that Kotey and Elsheikh should be tried by the ICC. Kotey himself affirmed that a trial at the ICC ‘would be the logical solution.’ As of now, the Syrian Kurds do not seem to have received a request for the surrender of the two fighters to the Court.

The Temporal Scope of the ICC’s Personal Jurisdiction Read the rest of this entry…

 
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The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective

Published on April 18, 2018        Author:  and
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On 9 April 2018, the ICC’s Office of the Prosecutor requested a ruling of a pre-trial chamber on the ICC’s jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

While Geoff Curfman in his Just Security post has already aptly commented on the Prosecution’s approach, this post seeks to examine the Prosecution’s request from a different angle, namely a gender perspective.

Background: Sexual violence against Rohingya

Documentation efforts in refugee camps in Bangladesh are exposing the grave nature and vast scale of sexual violence perpetrated against Rohingya in Myanmar, forcing many to flee. Human Rights Watch, for example, stated that it “found that Burmese security forces raped and sexually assaulted women and girls […]”. The report of the OHCHR’s Fact-finding Mission on Myanmar declared that there is “ample and corroborated information on brutal gang rapes and other forms of sexual violence against women”. Finally, Special Representative on Sexual Violence in Conflict, Pramila Patten, told the Security Council that every woman or girl she had spoken with during her visit to Rohingya encampments in Bangladesh “ha[d] either endured or witnessed sexual violence”, including seeing women literally being raped to death. Approximately 80% of those forced into Bangladesh since 25 August 2017 are women and children, and while sexual violence has not be limited to women and girls, it is understood they appear to comprise the majority of victims of sexual violence in this context.

Sexual violence and the Prosecution’s Request: Deportation as a blessing in disguise for gender justice Read the rest of this entry…

 

JASTA Keeps Saudi Arabia on Trial for 9/11 Terror Attacks: The US and its Foreign Sovereign Immunity Issue

Published on April 17, 2018        Author:  and
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In its decision of 28 March 2018 the US District Court for the Southern District of New York denied Saudi Arabia’s motion to dismiss a high-profile lawsuit for its alleged involvement in the September 11 terror attacks, In Re Terrorist Attacks on September 11, 2001 (03-MDL-1570(GBD)) (“the Decision”). In doing so, the Court applied the Justice Against Sponsors of Terrorism Act, 28 USC §1605B (“JASTA”), for the first time since it was passed by the US Congress on 27 September 2016.

The JASTA created, inter alia, a new exception to the Foreign Sovereign Immunity Act, 28 USC §1602 (“FSIA”), to the effect that sovereign immunity under the FSIA is waived:

“in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by –

(1) an act of international terrorism in the United States; and

(2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless of where the tortious act or acts of the foreign state occurred.” (“JASTA exception”)

The Bill generated significant debate both within and outside the US, and whilst under consideration by Congress, Victor Grandaubert warned in a well-reasoned post on this blog that if passed the JASTA would “entrench the isolated and unlawful position of the US in this area”. We take the opportunity of this first application of the Act to provide an update on the recent developments. The post will examine first the Decision, and will then move to address the position of the US in relation to customary international law on sovereign immunity. Read the rest of this entry…

Filed under: Terrorism
 
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The Syria Strikes: Still Clearly Illegal

Published on April 15, 2018        Author: 
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The strikes conducted this week against Syrian government targets by the US, UK and France are as manifestly illegal as the strikes conducted by the US alone last year. With one exception, the strikes are identical in the arguments made by the intervenors, in the reactions to those arguments by other states, in the deliberate use of silence and ambiguity, and in the consequent inability of this breach of international law to actually cause a shift in international law.

Like last year, the US (and France) failed to put forward any legal argument as to the source of their authority to act under the UN Charter system of the prohibition on the use of force. Their leaders spoke of the imperative need to avoid normalizing the use of chemical weapons; President Trump stated that the purpose of the strikes ‘is to establish a strong deterrent against the production, spread, and use of chemical weapons;’ Prime Minister May said that there was ‘no practicable alternative to the use of force to degrade and deter the use of chemical weapons by the Syrian Regime;’ President Macron spoke of the operation being directed solely against the clandestine chemical arsenal of the Syrian regime.

The language of deterrence used has the flavour of armed reprisals. Not only are such reprisals widely regarded as unlawful, but none of these governments actually clearly sets out an argument on the basis of reprisals. As the ICJ has explained in Nicaragua, para. 207, it is for states to articulate their own legal views, and it is on the basis of these views that other states can react, perhaps towards the creation of a novel rule or exception to an existing rule. In the absence of such a position, however, the approval of the strikes or lack of condemnation by third states has no bearing on the formation of customary international law, or on the evolving interpretation of the Charter. This is the barest minimum of formality required in a legal system, even a flexible one. This is not, as Monica argues in her post, a ‘simplistic’ position lacking in nuance – even if it is conceptually simple, and should be conceptually simple. This is the only dividing line we can have between law and politics, between legal and political arguments.

Read the rest of this entry…

Filed under: EJIL Analysis, Syria, Use of Force
 

The Attack on Syria and the Contemporary Jus ad Bellum

Published on April 15, 2018        Author: 
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The United States, Britain, and France have attacked various chemical weapons facilities in Syria. Even before they acted, a number of commentators claimed that any such attack would be internationally unlawful. Below, I explain why that claim is too simplistic and how we should situate the operation in the jus ad bellum going forward. Let me say at the outset that I don’t support this operation and have serious doubts about the capacity of the United States, in particular, to implement a coherent policy in Syria. (I also think the operation violates U.S. law.) So, I’m not arguing that the operation was a good idea or even that it should be lawful. I’m making an analytic argument about how the jus ad bellum works.

The April 2017 Incident

This was not the first attack against Syria for its use of chemical weapons. In April 2017, the United States struck Syria for the same asserted reason: as a reprisal for the regime’s use of chemical weapons in violation of international law. At the time, most commentators said that the U.S. operation was unlawful. It was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not covered by the Charter exceptions. Assad didn’t consent to the operation, the Security Council hadn’t authorized it, and it wasn’t taken in self-defense.

There is an ongoing debate about whether the jus ad bellum contains another exception for humanitarian interventions. The dominant view is that it does not. States (as a group) have periodically condoned unilateral operations that can be labeled “humanitarian,” but the vast majority of them have declined to support a generally applicable humanitarian exception to 2(4). They have instead insisted that no such exception exists. Further, even if there were one, its application to the 2017 operation would have been dubious. The operation looked more like a reprisal than like what we usually mean by a “humanitarian intervention.” President Trump said that it was designed “to prevent and deter the spread and use of deadly chemical weapons,” not to avert the many other atrocities that were being committed in Syria. Forcible reprisals are by almost all accounts unlawful. Read the rest of this entry…

Filed under: Syria, Use of Force
 

Copenhagen – much ado about little?

Published on April 14, 2018        Author:  and
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The Ministers of the Council of Europe adopted the ‘Copenhagen Declaration’ Friday April 13 concerning the perpetual reform of the European Human Rights System. Previous installments were agreed at Interlaken, Izmir, Brighton and Brussels.

On the face of it not much is new in the Declaration. It is still interesting, not least for what the Ministers agreed not to include from the draft circulated by the hosts April 5. The Danish draft urged states to reign in the Court by a dramatic extension of the ‘margin of appreciation,’ and by more control through political ‘dialogue.’ The robust rejection of these proposals also show us how the Court is independent yet accountable, to states committed both to protect human rights in Europe, and to complex conceptions of sovereignty and subsidiarity.

The agreed declaration is strikingly different:  Instead of being skeptical to the Court’s achievements and its course, the final Declaration is explicitly supportive of the Court and its independence from the states. The large backlog of cases gives reasons for “serious concern”, though the principal problem is not the Court, but rather some states’ failure to implement the Court’s judgments.  Read the rest of this entry…

 

OPCW Confirms the Identity of the Chemical Agent in Salisbury Attack

Published on April 13, 2018        Author: 
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The OPCW Technical Secretariat released yesterday the findings of its investigation into the Salisbury affair. The report confirms the UK account of the nerve agent, without however specifically naming it in the unclassified executive summary; it also states that the agent was of a high purity, implying its manufacture by a state, but without naming Russia as the source (much in the same way as the UK’s own chemical weapons lab). Here are the key bits:

8. The results of analysis of biomedical samples conducted by OPCW designated laboratories demonstrate the exposure of the three hospitalised individuals to this toxic chemical.
9. The results of analysis of the environmental samples conducted by OPCW designated laboratories demonstrate the presence of this toxic chemical in the samples.
10. The results of analysis by the OPCW designated laboratories of environmental and biomedical samples collected by the OPCW team confirm the findings of the United Kingdom relating to the identity of the toxic chemical that was used in Salisbury and severely injured three people.
11. The TAV team notes that the toxic chemical was of high purity. The latter is concluded from the almost complete absence of impurities.
12. The name and structure of the identified toxic chemical are contained in the full classified report of the Secretariat, available to States Parties.

UPDATE: See also this letter from the UK National Security Advisor to the NATO Secretary-General, providing some previously classified intelligence about the Skripal poisoning.