Call for Proposals – International Economic Law and Security Interests: ACIL-ESIL Amsterdam Conference. On 14 – 15 November 2019, the Amsterdam Center for International Law and the International Economic Law Interest Group of the European Society of International Law will host at the University of Amsterdam a Conference on International Economic Law and Security Interests. Besides a roundtable on adjudicating the security exception, the Conference will deal with the main areas of the topic over three axes: International Law and Security, including the history and interpretation of the security exception; Security Interests and International Economic Law, addressing the relationship between security interests and the legal regimes governing trade and investment; and, Emerging Security Issues, to discuss the impact of emerging concerns, such as cybersecurity, food security and energy security, over the legal framework governing transnational economic relations.
The ESCR Revolution Continues: ILO Convention No. 190 on the Elimination of Violence and Harassment in the World of Work
On 21 June 2019, the International Labour Organization (ILO) adopted the landmark ILO Convention No. 190 (Convention concerning the Elimination of Violence and Harassment in the World of Work). The labour standards set in this Convention were negotiated over a two year period by ILO member governments, workers’ representatives, and employers’ organizations. The adoption of Convention No. 190 is itself revolutionary, considering that an estimated around 500 million working-age women live in countries are reported not to have any legal protections against harassment at work. The World Bank reported in 2018 that “in 59 countries, women are not legally protected from workplace sexual harassment. The lack of legal protection is observed in 70% of the economies in the Middle East and North Africa, half (50%) in East Asia and the Pacific, and one-third (33.3%) in Latin America and the Caribbean.”
In this post, I examine the key landmark detailed provisions of ILO Convention No. 190, and why they present significantly higher protections than the more rudimentary and general provisions in the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as the protections against sexual harassment indicated in the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). In my view, ILO Convention No. 190 largely closes the global regulatory gap on workplace sexual harassment, not just by repeating ICESCR and CEDAW protections, but by adopting the most sweeping application of these protections (and even more substantive protections) to all the foreseeable permutations and changing employment arrangements today in the world of work. Institutionally, the adoption of ILO Convention No. 190 also formally opens the door for ILO’s regular supervisory system to ensure this treaty’s implementation by States ratifying ILO Convention No. 190, including special procedures under the ILO Constitution, such as the complaints procedure (Articles 26 to 34 of the ILO Constitution) enabling any ILO Member State to file a complaint with the ILO if it finds that any other ILO Member State is not “securing effective observance of any Convention which both have ratified”. The ILO Governing Body can refer the complaint to a Commission of Inquiry for investigation. If the respondent ILO Member State does not accept the recommendations of the Commission on Inquiry, the ILO can propose to refer the dispute to the International Court of Justice. The expansive protections against workplace sexual harassment afforded in ILO Convention No. 190 to all persons (including women) could thus also be more strongly protected in the international legal system as well as in domestic legal systems.
In the age of MeToo and the increasing global awareness that vulnerabilities to workplace sexual harassment are highest in non-traditional work settings and arrangements where power imbalances are sharpest, ILO Convention No. 190 places human dignity at the center of the global regulatory paradigm. It will be much harder for workplace sexual harassers and those who commit violence at the workplace to escape and avoid legal responsibility anywhere in the world.
The Lack of Prosecutions
Starving civilians as a method of warfare has long been prohibited and criminalised across the full spectrum of international legal frameworks, yet despite this criminalisation and its grave human cost, there has yet to be a prosecution of starvation on the international level. Consequently, the crime and its intersection with a wide range of other violations remain entirely unexplored.
The crimes that have occupied the international courts are those most frequently associated with an ongoing armed conflict. Whether the persecutory rapes in Bosnia, the slaughter in Rwanda, or the amputations of civilians in Freetown in Sierra Leone. This is the type of criminal conduct that appears to have shaped the perception of the type of deaths and injury that are most appropriate for prosecution in modern international criminal courts, with starvation languishing on the margins of prosecutorial imagination and practice.
In a legal policy paper recently issued by Global Rights Compliance (GRC), we set out in more detail the reasons behind the dearth of prosecutions and explore the paths to prohibition and accountability for the widespread and systematic death and suffering that it causes worldwide, with a focus on criminal prosecutions.
The F Word – The Return of Famines
Famines have returned and they strike where accountability (political or criminal) fails. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. The Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid. Read the rest of this entry…
In my second post on the report on the murder of Jamal Khashoggi by the Special Rapporteur on extrajudicial executions, I will discuss some of its most interesting legal findings. The key finding, obviously, is that Saudi Arabia is responsible for committing an extrajudicial execution in violation of Mr Khashoggi’s right to life. The Special Rapporteur notes in that regard, quite correctly, that it is ultimately legally irrelevant whether Khashoggi’s killing was premeditated, ordered at the highest levels of the Saudi state, or was done as part of some ‘rogue’ operation. Saudi Arabia bears responsibility for the conduct of its organs, done in their official capacity, even if it was committed ultra vires (para. 219).
In addition to finding Saudi Arabia responsible for violating Khashoggi’s right to life and for failing to comply with obligations towards Turkey under the Vienna Convention on Consular Relations, the report also finds that Khashoggi’s killing constituted an unlawful use of force by Saudi Arabia against Turkey, contrary to the prohibition in Article 2(4) of the UN Charter (paras. 227-230). The report’s analysis in this regard focuses somewhat excessively on whether the killing of a journalist would be an act contrary to the purposes of the United Nations, but does not really engage with the prior question of whether the furtive assassination of a single individual can constitute ‘force’ in the sense of Article 2(4). This is in effect the question of whether there is any de minimis, lowest limit to the concept of force in Article 2(4), and is a point of some controversy, since a finding that interstate force has been used has a number of important implications. Most recently the same issue was raised with regard to the Salisbury chemical attack, when the UK government formally accused Russia for violating the prohibition on the use of force (which, as far as I’m aware, Turkey did not do here). For detailed discussions in this respect see this post by Tom Ruys on Just Security and Dapo’s post here on EJIL: Talk.
Last week the UN Special Rapporteur on extrajudicial executions, Agnes Callamard, submitted to the Human Rights Council her long-awaited final report on the investigation she conducted on the murder of Jamal Khashoggi. In this post I’ll offer a few thoughts on some of the legal and factual findings of this report, which is the result of the only independent inquiry to-date into Khashoggi’s assassination in the Saudi consulate in Istanbul in October last year. Readers may recall that I’ve recently written extensively on the blog on the international legal aspects of Khashoggi’s murder, based on my forthcoming article in the Human Rights Law Review.
The Callamard report is extensive, detailed and rich in its legal and factual analysis. Indeed it is far too extensive to be summarized and discussed in a blog post, which I will not attempt to do. Rather, this two-part post will focus on a selection of the report’s most novel factual and legal findings; the first part will examine the former, and the second, to be published tomorrow, will look at the report’s legal analysis.
The report itself is comprised of two documents. First, the formal report to the Human Rights Council, submitted for its 41st regular session starting this week – UN Doc. A/HRC/41/36. Second, a one-hundred page annex to that report, which contains the Special Rapporteur’s detailed factual and legal findings with regard to the murder of Jamal Khashoggi – UN Doc. A/HRC/41/CRP.1. The former document by and large summarizes the contents of the latter, while emphasizing some important points of principle, e.g. regarding the duty to warn (on which more tomorrow). I will hereinafter thus only refer to the annex, i.e. whenever I cite a paragraph of the report, I mean to refer to the longer document, A/HRC/41/CRP.1.
Again, I will not cover the report exhaustively. The media coverage of the report, including succinct summaries of its main findings, has been extensive (e.g. here and here; see also this VoA interview with Ms Callamard). In a nutshell, the Special Rapporteur found that Saudi Arabia bears state responsibility for the extrajudicial killing of Mr Khashoggi, in violation of his human right to life, and that it has similarly violated its positive obligation to effectively investigate his killing. She has inter alia called on the UN Secretary-General, the Human Rights Council, and the Security Council, to establish an independent international criminal investigation into Khashoggi’s murder, and has specifically found that credible evidence existed for the potential responsibility of the Saudi Crown Prince, Mohammed bin Salman, and his principal henchman, Saud al-Qahtani.
As one could expect, Saudi Arabia has already rejected the report, alleging that it is biased, contains ‘nothing new,’ repeats allegations already made in the media, and is based on ‘false accusations confirmed as stemming from Callamard’s preconceived ideas and positions towards the kingdom.’ In reality, however, there are quite a few new significant factual findings in the report, which have been made with a commendable degree of care and rigour – all the more commendable in light of the very limited resources that the Special Rapporteur had at her disposal. In fact, the report expressly tries not to rely on media reporting, whenever possible, and acknowledges possible sources of bias when appropriate (see paras. 36-37, 42-47). The Special Rapporteur established as proven or credible only those facts that she herself could independently substantiate. And, of course, she applied in great detail the applicable rules of international law to the facts that she has established. As we will see, most of her legal findings are (at least in my view) unassailable, while others are somewhat more tenuous.
What, then, of the report’s novel factual findings?
On Thursday, June 13, two ships were damaged within forty-five minutes by (current evidence suggests) limpet mines, while transiting the Gulf of Oman at the mouth of the Strait of Hormuz. The Japanese product tanker, Kokuka Courageous sustained damage from either a limpet mine or a projectile, just as Prime Minister Shinzo Abe met with Iranian Supreme Leader Ayatollah Ali Khamenei in Tehran to try to reduce regional tensions. The Front Altair, also a tanker, suffered far more severe damage to its starboard hull, including a hole at the waterline, which – it has been suggested – was the result of a torpedo strike. This is very difficult to confirm – torpedoes tend to cause much more significant damage, and the damage sustained by Front Altair might also be consistent with a moored or floating mine strike, or the detonation of an attached limpet mine. Both ships caught fire and their crews abandoned ship. Four ships were also damaged by limpet mines off the coast of Fujairah on May 12, 2019. A UAE inquiry pinned responsibility on an ‘unidentified state actor.’
World oil prices increased as daily freight rates for oil supertankers climbed as much as fifty percent to reflect the heightened risk. Insurance rates for a seven-day transit have increased fifteen percent. Some seventy of the world’s supertankers are in the region – ten percent of global capacity – but many remain idle due to the threat. The United States blamed Iran for the attacks, and indeed there is evidence that points to Iranian involvement. The UK also attributes responsibility to Iran. Iran has denied responsibility, and Iranian Foreign Minister Javad Zarif responded on twitter that the United States or its allies were likely behind the assaults and that the charge was ‘[without] a shred of factual or circumstantial evidence.’
The United States has pledged to keep the Strait of Hormuz (SOH) open to traffic. Secretary of State Mike Pompeo attributed the attacks to Iran based upon ‘intelligence, the weapons used, the level of expertise needed to execute the operation, recent similar Iranian attacks on shipping, and the fact that no proxy group operating in the area has the resources and proficiency to act with such a high degree of sophistication.’ On June 17 he doubled down, promising to present in the coming days ‘lots of data, lots of evidence’ linking the attacks to Iran. President Trump stated flatly, ‘Iran did do it.’ U.S. Central Command released a video which appears to show an Iranian Revolutionary Guard Corp Navy (IRGCN) patrol boat removing an unexploded limpet mine from the Kokuka Courageous. Trump added, ‘I guess one of the mines didn’t explode and it’s probably got essentially Iran written all over it… It was them that did it.’
In this piece, we explore the available evidence for attribution in light of the international law on point. May the attacks be attributed to Iran, and if not, what additional evidence would have to be produced? And once (if) attribution of the attacks is made out, what measures may affected states then take in response? Since there is no evidence that there exists an international armed conflict under Common Article 2 of the Geneva Conventions, we do not address international humanitarian law, although in the last few days the shoot down of a US UAV and reports of a bombing mission switch off are starting to complicate this assessment.
Yesterday President Trump apparently aborted a US strike against Iran, in response to Iran’s destruction of an unmanned US surveillance drone. US and Iranian accounts continue to differ on whether the drone was shot down in Iranian airspace or in international airspace. Ashley Deeks and Scott Anderson have helpfully analyzed the international legal framework applicable to any US strike in response to the destruction of the drone over on Lawfare, to which I have little to add in principle. In particular, they’ve explained the more expansive and the more restrictive theories of self-defence on which the legality of a US strike would hinge (see also Ashley’s previous post here).
But, President Trump has tweeted in the past hour, as he does, and his tweets effectively (if inadvertently) admit the illegality of the aborted US strike under any conceivable theory of self-defence, no matter how expansive:
….proportionate to shooting down an unmanned drone. I am in no hurry, our Military is rebuilt, new, and ready to go, by far the best in the world. Sanctions are biting & more added last night. Iran can NEVER have Nuclear Weapons, not against the USA, and not against the WORLD!
— Donald J. Trump (@realDonaldTrump) June 21, 2019
Note, first, how President Trump describes the aborted US strike as being meant ‘to retaliate’ against Iran for the destruction of the drone. But it is black letter jus ad bellum that the purpose of self-defence can only be to stop an ongoing attack, or (possibly) to prevent imminent future attacks. It cannot, however, simply be to retaliate against an attack committed in the past. Thus, even if US historically expansive views on the right to self-defence were to be accepted in their totality, and even we were to accept that the US drone was in international airspace when it was shot down and that this was an armed attack by Iran against the US in the sense of Article 51 of the UN Charter, the US head of state has just admitted to the world that the strike he authorized, and then rescinded, was retaliatory and not defensive in nature.
Similarly, he expressly admitted that the attack would have been disproportionate, as 150 lives would likely have been lost for one destroyed unmanned drone. And as we all know, proportionality is a key requirement of the customary law of self-defence. Thankfully, President Trump ultimately decided to abort the strikes, and therefore no violation of Article 2(4) of the UN Charter took place. Hopefully any conflict between the US and Iran will be avoided. But that said, it is also clear from what the US President tweeted to all of us, so explicitly and so ungrammatically, that the proposed military action of his government, had it taken place, would have been illegal. And again, under the President’s own admission, it would have been illegal regardless of whether one embraces a more restrictive or a more expansive theory of self-defence.
Yesterday international investigators charged three Russian nationals and one Ukrainian national before Dutch criminal courts for the 2014 downing of Malaysian Airlines flight MH17 over Ukraine. According to a report in the Guardian:
The suspects were named as Igor Girkin, a former colonel of Russia’s FSB spy service; Sergey Dubinskiy, employed by Russia’s GRU military intelligence agency; and Oleg Pulatov, a former soldier with the GRU’s special forces spetsnaz unit. All were Russian soldiers previously sent abroad.
A fourth suspect, Leonid Kharchenko, is a Ukrainian. He led a military combat unit in the city of Donetsk as a commander, it was alleged.
Girkin was minister of defence in the Moscow-backed Donetsk People’s Republic (DNR). He was the commander of the DNR when the plane was shot down on 17 July 2014. Dubinskiy served as Girkin’s deputy in the DNR, and Pulatov was Dubinskiy’s deputy. Kharchenko was under their command.
Investigators said the soldiers “formed a chain linking DNR with the Russian Federation”. This link was how the separatists obtained heavy equipment from Russia including the Buk launcher used to fire at MH17 with “terrible consequences”.
The accused did not push the button themselves but were responsible for bringing the anti-aircraft system to eastern Ukraine. They could therefore be held criminally liable and charged with murdering 298 people, investigators said.
Readers will recall that last year the investigators and the Dutch and Australian governments formally attributed the downing of MH17 to Russia. Yesterday, however, saw the first criminal charges brought against specific individuals. Obviously, it remains highly unlikely that any of them will face trial in the Netherlands in the foreseeable future, unless they are unwise enough to travel abroad, although they will likely be tried in absentia.
There have also been interesting developments about litigation regarding MH17 in the European Court of Human Rights. Back in 2014 I suggested that the families of the victims may decide to bring cases against both Russia and Ukraine:
In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.
At least two such cases have indeed been brought and have been communicated by the Court to the respondent governments for pleadings on admissibility and merits.
A recent report has described how Royal Australian Navy helicopter pilots were targeted with lasers during a night flight in the South China Sea. The lasers were allegedly directed from Chinese fishing vessels – the primary cadre from which the so-called Chinese ‘maritime militia’ is drawn. Further, the incident occurred – according to another report – shortly after a US admiral warned that the paramilitary force could be treated as ‘combatants’.
What is the Chinese maritime militia? As described below it is a hybrid body (or bodies), but in essence it is a civilian reserve force (often of fisherman) capable of being called upon to conduct military or governmental activities. A number of recent official reports (eg, US, and Japan), have specifically commented upon the rise in China’s employment of this force multiplier in the South and East China Sea regions. At a certain level such a force may be benign, called upon to assist in search and rescue efforts. The concern, however, is that militia vessels are also being used to further Chinese strategic claims in disputed waters by – for example – harassing the fishermen of other states – including by sinking their vessels, as is reported to have occurred with a Philippines fishing vessel just a few days ago. In another episode, Chinese fishing vessels formed a cordon around Chinese oil exploration vessels operating off Vietnam.
The concept of a ‘maritime militia’ is relatively recent, but not without historical parallel. There has long been (and remains) well settled law around the practices of privateering, use of merchant vessels as auxiliaries to naval forces, and conversion of merchant vessels into warships. In this post, however, I will briefly outline two status and characterisation challenges ahead – or rather, already with us – presented by the increased use of maritime militia by China in the current geo-political and legal context: The status and characterisation of militia vessels under the United Nations Convention on the Law of the Sea (UNCLOS) and the customary law of the sea; and their status under the Law of Naval Warfare (LoNW). Read the rest of this entry…
Announcements: UN Audiovisual Library of International Law; Professor of International Law and Human Rights, Lund (Sweden); ILaW Discussion on ICC Decision in the Al-Bashir Case; CfP Exploratory Workshop on Constitutions of Value
1. New Additions 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. Manuel Monteagudo Valdez on “The Singularity and Limitations of Contemporary International Economic Law” and on “Perspectives on International Economic Law: Searching for an Anthropological Approach” (in Spanish). The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.