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Tit-for-Tat-for-Tit: The Indian and Pakistani Airstrikes and the Jus ad Bellum

Published on February 28, 2019        Author: 
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Over the past few days there has been a flurry of confusing reports regarding military confrontations between India and Pakistan in the Kashmir region. It appears that in the early hours of 26 February Indian air force MiG-20s carried out air strikes in Pakistani territory in the small city of Balakot in response to a suicide bombing in Indian controlled Kashmir on 14 February which took the lives of over 40 Indian paramilitary soldiers and for which Pakistani based terror group Jaish-e-Mohammad (JeM) claimed responsibility. India claimed that it hit a JeM militant training camp during the strikes with a significant number of militant casualties, while Pakistan claimed that the Indian aircraft retreated after being confronted by the Pakistan Air Force, dropping four or five bombs in open field as they left across the border and which resulted in no causalities. While there have been several border skirmishes between the two states since they gained independence from Britain in 1947, this is the first time Indian military aircraft have carried out strikes across the ‘line of control’ since the war between them in 1971 which led to the creation of Bangladesh.

The following day Pakistan claimed to have carried out air strikes on ‘open ground’ within Indian territory, while India claimed that a military installation had been targeted. During an ensuing confrontation, Pakistan shot down an Indian Air Force MiG-21 jet which fell within Pakistani territory and led to the capture of the pilot. India has also claimed to have shot down a Pakistani fighter jet which had fallen on to the Pakistani side of the LoC. The US, EU, Russia and China have all called for restraint.

While clearly a dangerous development between two nuclear-armed states, with various accounts of underlying political motives for the clashes, and with shelling continuing across the LoC between them at the time of writing, it is, however, the legal justifications – or, rather, lack of – by both states for their strikes that will be the focus here.

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SCOTUS Decision in Jam et al v. International Finance Corporation (IFC) Denies Absolute Immunity to IFC…With Caveats

Published on February 28, 2019        Author: 
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Editor’s Note: In view of this landmark SCOTUS decision yesterday, this post is a brief deviation from our ongoing Symposium for the ESIL Interest Group on Migration and Refugee Law on the UN Global Compacts on Migration and Refugees: The Twin Peaks?.  We immediately continue with the Symposium after this post.

When it rains, it somehow pours. February 2019 ended up being such a landmark month for international law adjudication.  A day after the International Court of Justice released its landmark Chagos Advisory Opinion (finely discussed by Marko Milanovic here), the Supreme Court of the United States (SCOTUS) issued its 27 February 2019 decision in Jam et al. v. International Finance Corporation, (586 U.S. ___ 2019).  The decision squarely rejects the defense of absolute immunity invoked by the International Finance Corporation (IFC) through the United States’ International Organizations Immunities Act (IOIA) of 1945, with respect to a damages suit for negligence, nuisance, trespass, and breach of contract filed in 2015 before the US District Court for the District of Columbia, by a group of farmers and fishermen in India (with assistance from the NGO EarthRights), concerning the IFC’s inadequate supervision of the environmental and social action plan over its US$450 million loan to construct a coal-fired power plant in the state of Gujarat.  The damages suit invokes the IFC’s own internal audit through the Compliance Advisor Ombudsman (CAO), admitting that the IFC did not adequately supervise the environmental and social action plan for the project.  

Last week, I wrote about the evidence from Inspection Panel’s body of investigation reports in about 131 cases thus far, showing ongoing gaps between the World Bank’s articulated commitments to Agenda 2030 and the Paris Agreement, with its actual operational practices in environmental and social action compliance methods that deliberately refuse to internalize the actual international human rights, environmental, climate change, and labor obligations of States in the Bank’s lending operations for development projects. In this respect, the SCOTUS decision is of landmark impact, because it opens the door for US courts to potentially determine the nature of the IFC’s legal responsibilities beyond the lines of accountability internally designed at the World Bank through the independent Inspection Panel or the compliance auditing process at the CAO.  Whether or not the suits will prosper on the merits, of course, is another matter altogether, noting how business and human rights litigation strategies have evolved in the United States after SCOTUS decisions in Kiobel v. Royal Dutch Petroleum and Jesner v. Arab Bank PLC.  

There are also caveats to the decision itself, as carefully penned by SCOTUS Chief Justice Roberts.  When one goes through the Court’s reasoning, the Court also signaled that “restrictive immunity hardly means unlimited exposure to suit for international organizations.” 

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Legislating by Compacts? – The Legal Nature of the Global Compacts

Published on February 28, 2019        Author: 
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Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

It is not usual to have UN documents splashed across the first pages of the world, exciting animadversion among politicians not known for their respect or knowledge of international law and heated exchanges on the social media; governments (well: one!) collapsing over them; or even having actors read through each word of them on national television. The Global Compact for Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM) were stars long before they were formally approved by the 73rd UN General Assembly. With the final text decided a month earlier, the GCR was approved on 17 December 2018 as part of an omnibus resolution on the work of the Office of the UN High Commissioner for Refugees (UNHCR) and with an overwhelming majority (181/2/3): only Hungary and the US voted against, with the Dominican Republic, Eritrea and Libya abstaining. After a highly publicized and politicized gathering in Marrakesh (10-11 December 2018), the GCM was approved by the General Assembly on 19 December 2018 with a less impressive majority (152/5/12): The Czech Republic, Israel and Poland joined the nay-sayers and a dozen others, among which five Member States of the European Union (EU) and Switzerland abstained, the last embarrassingly enough being with Mexico one of the co-convenors of the intergovernmental process leading to its adoption. Both Global Compacts are the product of a political commitment, reflected in the New York Declaration on Refugees and Migrants adopted by the UN General Assembly on 19 September 2016, and they constitute the latest acts in a process of rethinking the norms and procedures governing the management of human mobility. Both Compacts proclaim themselves as non-legally binding, the result of a wide cooperative effort among governments and between governments and civil society. The discussion on their legal nature could surely have stopped here. And yet it goes on – even in this blog. Read the rest of this entry…

 
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Introduction to the Symposium on ‘the UN Global Compacts on Migration and Refugees: The Twin Peaks?’

Published on February 27, 2019        Author: , , and
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Editor’s note: EJIL:Talk! is happy to announce that starting today, the blog will host a symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?. In their contribution to this series, five members of the ESIL Interest Group on Migration and Refugee Law will engage with overarching and cross-cutting topics in the context of the recently adopted Global Compact on Safe, Orderly and Regular Migration and Global Compact on Refugees.

We thank the authors for their contributions, and for the interesting discussions this symposium is sure to generate!

In this blog symposium, the ESIL Interest Group on Migration and Refugee Law focuses on the recently adopted two United Nations (UN) instruments aiming at reinforcing the (legal) structures of global governance on migration and asylum: the Global Compact on Safe, Orderly and Regular Migration (GCM) as well as the Global Compact on Refugees (GCR). Human migration has been a constant in the history of the world and a defining reality of our time. International migration has been coined as a global “megatrend” by the International Organization for Migration. In this context came the Global Compacts, which are the outcomes of a two-year negotiation process in different formats and settings. After several rounds of inclusive preparatory talks within the UN in New York, the Marrakech Intergovernmental Conference, held on 10-11 December 2018, formally adopted the Global Compact on Migration, which was later endorsed by the UN General Assembly (UNGA) on 19 December 2018 (with 152 States voting for it). The Global Compact on Refugees has been prepared in a less transparent way by the UN Refugee Agency (UNHCR), then was presented to the UN General Assembly in September 2018, and was subsequently also endorsed by the UNGA in December last year (181 countries voted in favour of it). Read the rest of this entry…

 
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Private Investigators Helped Germany Arrest Two Former Syrian Secret Service Officers

Published on February 26, 2019        Author: 
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On 7 February 2019, the investigative judge of the German Federal Court of Justice issued arrest warrants against two former secret service officers from the Syrian government, since they were strongly suspected of having carried out or aided torture and crimes against humanity. On 12 February 2019, the German Federal Prosecutor – through officers of the Federal Criminal Police Office (Bundeskriminalamt) – arrested the two suspects in Berlin and Zweibrücken. As a result of the creation of a French-German Joint Investigation Team, another Syrian alleged to have worked for the secret service was arrested by Parisian prosecutors. This is the first time western criminal prosecutors have arrested alleged torturers working for Bashar al-Assad.

The strong suspicion that the suspects had carried out the alleged crimes is based – to a considerable extent – on evidence that has been collected by private individuals and entities: First, the photographs taken by the “Group Caesar”, the code name of a former Syrian military photographer who brought over 50,000 photographs out of the country, 28,000 of which show detainees in Syrian prisons killed by torture, outright execution, disease, malnutrition or other ill-treatment. Second, the assistance of the European Center for Constitutional and Human Rights, which provided the testimony from six survivors of torture in Al Khatib detention center in Damascus. Third, the Commission for International Justice and Accountability (CIJA), who provided documentary evidence against one of the two former secret service officers. Nerma Jelacic, CIJA’s deputy director, announced on Twitter: “#CIJA is proud to have supported the #German prosecutor’s investigation and arrest of the first high-ranking Syrian regime official”.

This shows that the appeal of private investigations has now reached the level of International Criminal Justice. Of course, investigatory work done by private non-state agencies is not novel, considering that there are countless Non-Governmental Organisations (NGOs) and Inter-Governmental Organisations (IGOs) who interview witnesses and collect documents. The aim is that this material may be used in International(ised) Criminal Tribunals or before a national court trying international crimes. Private investigations are indispensable on the international level, and privately funded international human rights organisations have been crucial to hold perpetrators of international crimes accountable. Read the rest of this entry…

 
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ICJ Delivers Chagos Advisory Opinion, UK Loses Badly

Published on February 25, 2019        Author: 
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Earlier this afternoon the ICJ delivered its Chagos advisory opinion. Briefly, the Court found that the separation of the Chagos archipelago from the British colony of Mauritius was contrary to the right to self-determination and that accordingly the decolonization of Mauritius was not completed in conformity with international law. As a consequence, the Court found that the UK’s continuing administration of the archipelago, which includes the largest US naval base in the Indian Ocean, Diego Garcia, is a continuing internationally wrongful act, which the UK was under an obligation to cease as soon as possible. The Court was almost unanimous – its decision not to exercise discretion and decline giving an opinion was made by 12 votes to 1, while its findings on the merits were made by 13 votes to 1 (Judge Donoghue dissenting). The AO and the various separate opinions is available here.

Here are some key takeaways.

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The Post-TTIP Transatlantic Cooperation on Trade: Stepping up Conformity Assessment

Published on February 25, 2019        Author: 
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On 18th January 2019, the European Commission published the draft negotiating mandates for its trade talks with the United States, which followed the US-EU Joint Statement on stepping up the bilateral cooperation summing up the Trump and Juncker’s meeting in July 2018. Putting the idea of an ambitious trade deal to the side, the mandates cover two areas where the prospects of the agreement seem less contentious – eliminating tariffs on industrial goods and stepping up conformity assessment (CA) cooperation. The latter is chosen to serve one of the main negotiating objectives of both sides to remove non-tariff barriers (NTBs) that are estimated to have even a more profound effect on trade than tariffs in some areas and thus being of particular concern to the bilateral trade relations. Stepping up CA is also listed as one of the US Negotiating Objectives recently published by the USTR, since the US identifies European CA among main trade barriers to the EU market in its 2018 Foreign Trade Barriers report.

The CA cooperation, however, as this blog clarifies, does not imply cooperation on the content of regulatory disciplines and does not go further than recognition of certificates/ testing/ approvals issued by each Party’s regulatory authorities, making it a less ambitious mechanism than as had been initially intended under the TTIP (“Regulatory cooperation chapter”). However, despite being a “low hanging fruit” in comparison to regulatory cooperation, it still might be difficult to accomplish as the previous efforts on mutual recognition between the US and EU demonstrated. Over the years, though, the CA cooperation models have been stepped up, which is very well manifested in the recently negotiated CETA that might serve as a positive example for the future US-EU cooperation in the area of CA. Read the rest of this entry…

 

Announcements: UN Audiovisual Library of International Law; CfP Postgraduate Conference in International Law and Human Rights; Summer School on the ICC; Chilean Conference on Antactic Law; ICON-S 2019 Annual Conference; Research Conference on Human Rights; Expert Dialogue on the EU Blocking Regulation and Extraterritorial US Sanctions; Symposium on International Investment Law and Arbitration

Published on February 24, 2019        Author: 
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1. New Addition to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Mr. Michael Scharf on “Accelerated Formation of Customary International Law” and Ms. Elizabeth Salmón on the “Inter-American Human Rights System” (in Spanish). The AVL has also launched a new resources page for the 2019 edition of the Inter-American Human Rights Moot Court Competition organized by the Academy on Human Rights and Humanitarian Law of American University Washington College of Law. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

2. Call for Papers: 3rd Annual Postgraduate Conference in International Law and Human Rights. The International Law and Human Rights Unit, part of the School of Law and Social Justice at the University of Liverpool, welcomes paper, poster and ‘soapbox’ proposals for its 3rd Annual Postgraduate Conference in International Law and Human Rights. The conference will take place on 17 – 18 June 2019. The theme of the conference is: ‘Hope in International Law and Human Rights’. The conference theme should be broadly conceived, and we encourage proposals from any postgraduate student specialising in international law, human rights or related subjects. Abstracts of no more than 300 words can be sent to ilhrucon {at} liverpool.ac(.)uk, along with a short biography (100 words). The deadline for submissions is 1 April 2019. Please click here for more information about the conference theme and call for papers.

3. 20th Summer School on the International Criminal Court. The 20th Summer School on the International Criminal Court takes place from 24 – 28 June 2019 at the Irish Centre for Human Rights at the National University of Ireland Galway. This is the premier summer school specialising on the International Criminal Court, in which delegates participate in a series of intensive lectures by leading academics and professionals working at the Court. The organisers are pleased to announce that a number of scholarships are available, covering both the registration fee and accommodation. The closing date for scholarship applications is 1 March 2019. Details on how to apply are available here.  Registration for the ICC Summer School will open in late February with an early bird registration fee of €400 is available for delegates who register before 1 April 2019. The closing date for registrations is 1 June 2019. Read the rest of this entry…

Filed under: Announcements and Events
 
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Lingering Asymmetries in SDGs and Human Rights: How Accountable are International Financial Institutions in the International Accountability Network?

Published on February 22, 2019        Author: 
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The recent US nomination (and thus de facto appointment) of well-known World Bank critic and US Treasury official, John Malpass, as the new World Bank President following the abrupt resignation of Jim Yong Kim (former Dartmouth College president who announced he was leaving the World Bank for opportunities in the private sector) brought a slew of criticisms (see here, here, and here) against the United States’ traditional prerogatives of appointing the World Bank President, in tandem with the European Union’s counterpart prerogatives in appointing the Managing Director of the International Monetary Fund (IMF).  The tradition arises from a “gentlemen’s agreement” struck at Bretton Woods at the inception of the World Bank and IMF.  Neither the IMF Articles of Agreement or the World Bank Group’s Articles of Agreement contain any whiff of this gentlemen’s agreement – but they are effectively carried out because of the United States’ overwhelming voting power at the World Bank and the European Union’s counterpart voting power at the IMF.  In any event, contestations over power and leadership of the Bretton Woods institutions are not exactly new – they are precisely the same matters that have impelled rival geopolitical powers such as China and Russia to set up new international financial institutions (IFIs) where their influence and leadership can be more palpable, as seen from the BRICS New Development Bank and the Asian Infrastructure Investment Bank. Leadership contests at the IFIs – often between one hegemon and other fellow hegemons in the international system – do not, however, scrutinize the real nature of accountability of IFIs under their development mandates, as to the populations for whom such mandates were created to begin with.  During his presidency at the World Bank, Jim Yong Kim was heavily criticized for soliciting private funders in Wall Street to finance the Bank, sourcing capital infusions beyond the traditional donations of governments.  World Bank staff challenged him for his managerial style and the lack of strategic direction, that was alleged to be inconsistent with the Bank’s actual development mandate.  

Even as the IFIs continued to tout “inclusive growth” at the November 2018 G20 meetings – a goal which the World Bank defines as “growth that allows people to contribute to and benefit from economic growth” – it is quite remarkable to this day that IFIs shirk from openly embracing their own member States’ human rights treaty obligations as the normative template for their development mandates, preferring to refer strictly to their internal mandates under their respective Articles of Agreement.  (On this point, see the interesting 2017 article by Thomas Stubbs and Alexander Kentikelenis).  It may be recalled that the UN Independent Expert for a Democratic and Equitable International Order, Mr. Alfred de Zayas, formally called on the World Bank in September 2017 to align their articles of agreement with human rights, and to ensure that development projects with Members’ own international human rights commitments, all the more so because the World Bank could not afford to be a “human rights-free zone”.  

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The Global Pact for the Environment – What Would the Right and the Duty to Environmental Protection Change for EU law?

Published on February 21, 2019        Author:  and
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From the perspective of international environmental law, there is already a lively debate about the proposed Global Pact for the Environment, including this blog. The contributions appear more limited on the topic of the Pact’s potential impact on EU environmental law, and it is on this issue we are particularly interested. In this post, we will discuss the right and the duty to environmental protection. In our opinion, both would introduce new elements into EU environmental law, but the changes would not be radical. Accordingly, ratification by the EU should not face overwhelming obstacles. Our remarks will be based on the preliminary draft of a Global Pact for the Environment, as proposed by the Group of Experts under the leadership of Mr. Fabius.

Under Article 1 every person has the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment.

Article 2 provides that every State or international institution, every person, natural or legal, public or private, has the duty to take care of the environment. To this end, everyone contributes at their own levels to the conservation, protection and restoration of the integrity of the Earth’s ecosystem. Read the rest of this entry…