Home Articles posted by Anne Peters (Page 3)

Novel practice of the Security Council: Wildlife poaching and trafficking as a threat to the peace

Published on February 12, 2014        Author: 

OLYMPUS DIGITAL CAMERAOn 12 and 13 February 2014, heads of states will meet at a London summit on the trafficking of endangered species convened by British Prime Minister David Cameron. The background to this initiative is the increasingly acknowledged link between wildlife poachers, traffickers, and armed conflict in some regions of Africa. According to the WWF, over 20,000 elephants are killed each year for their ivory tusks, many of them in central African conflict zones.

In two recent resolutions of January 2014, on the Central African Republic (res. 2134), and on the Democratic Republic of the Congo (res. 2136), the Security Council (SC) authorized targeted sanctions against poachers, wildlife product traffickers, and against persons and entities pulling the strings. The resolutions were primarily designed to target a number of armed rebel groups operating in the eastern region of the Democratic Republic of the Congo and in the Central African Republic. The United Nations (UN) suspects various armed groups, such as the Lord’s Resistance Army, Somalia’s Al-Shabaab Islamist militant group and Sudan’s Janjaweed militia, to use the illegal ivory trade as a source of generating finances or otherwise to benefit from the illegal wildlife trade. With these resolutions, the Council de facto qualified wildlife poaching and trafficking as a threat to the peace. Although this statement is at least implicit in the resolutions, the rationale remains anthropocentric, as will be shown in this post.

Res. 2134 and 2136: targeted sanctions against wildlife poachers

Under res. 2134 and 2136 states must adopt sanctions, namely freezing assets and restricting travel, on any individual or entity found to be involved in wildlife trafficking. Practically speaking, the resolutions mean that traffickers must be targeted by officials from different government agencies such as interior and finance ministries, and customs. Read the rest of this entry…


Targeted Sanctions after Affaire Al-Dulimi et Montana Management Inc. c. Suisse: Is There a Way Out of the Catch-22 for UN Members?

Published on December 4, 2013        Author: 

SanctionsUN member states remain caught between the obligation to carry out Security Council decisions under Art. 25 of the UN Charter and the obligation to respect international or regional human rights guarantees. The chamber judgment of 26 November 2013 in Al-Dulimi, No. 5809/08, is the second decision of the European Court of Human rights (ECtHR) on targeted sanctions after Nada (ECtHR (Grand Chamber), Nada v. Switzerland, No. 10593/08, judgment of 12 Sept. 2012). In contrast to the constellation in Nada, the UN member states (here Switzerland) had no leeway at all to implement the Iraq sanctions imposed by UN SC Res. 1483. However, because the UN sanctions regime did not guarantee “equivalent protection”, the Bosphorus-presumption that the states’ implementing measures are in conformity with the European Convention of Human rights (ECHR) did not apply – in other words, it did not help the state that it had no leeway. Strasbourg examined in full whether Art 6 ECHR had been lawfully restricted by Switzerland and found that this was not the case. On the contrary, the Swiss Federal Tribunal’s refusal to scrutinize the merits of Al-Dulimi’s complaint (with a view to Art. 103 UN Charter), had undermined the very essence of Art. 6 ECHR and therefore Switzerland violated the Convention.

By insisting on full responsibility of ECHR members for violations of the Convention, independently of their “strict” obligations under Security Council resolutions, Strasbourg has in Al-Dulimi stabilized the catch-22-situation. This blog post argues that member states should not be left off the hook, but also calls for responsibilizing the United Nations. Read the rest of this entry…


Surveillance without Borders: The Unlawfulness of the NSA Panopticon, Part II

Published on November 4, 2013        Author: 

This is Part II of a post assessing the international law implications of the U.S. National Security Agency’s global spying program. Part I focused the general international law implications of the program. This part focuses on potential violations of human rights law and breaches of the law of diplomacy.

Constitutional fundamental rights binding the European states

In probably all surveilled states, citizens enjoy a constitutional right to privacy which has been affected by secret surveillance measures by the NSA. Fundamental rights embodied in European constitutions bind only the territorial state, not the USA. The territorial states’ responsibility under their own constitutional law could be involved through their condonement, toleration, or by just refraining from protesting against surveillance measures by the NSA.

In Germany, the secrecy of communication is protected by Art. 10 of the German Basic Law (Grundgesetz, GG). This fundamental right may be lawfully restricted. The principal relevant legislation in Germany is the Gesetz zur Beschränkung des Brief-, Post und Fernmeldegeheimnisses as of 26 June 2001, colloquially called the G10-Act. This Act allows for measures to repel “dangers to the troops of the non-German contracting parties of the NATO treaty” (§ 1 of the G10-Act). That Act allows for different types of restrictions of the fundamental right to privacy, for example “strategic limitations”. But all restrictions are tied to specific conditions, for example, “concrete clues” must exist to found a “suspicion”. Also, the Act only authorises specific German agencies to perform surveillance measures, notably the German intelligence service (Bundesnachrichtendienst). Third, specific procedures must be respected. Finally, the affected persons must be informed ex post, and they are guaranteed access to non-judicial remedies. None of these preconditions have been met in the course of NSA-surveillance. It remains to be seen whether German authorities have violated citizens’ fundamental right to privacy by tolerating NSA measures. Read the rest of this entry…


Surveillance Without Borders? The Unlawfulness of the NSA-Panopticon, Part I

Published on November 1, 2013        Author: 


Introduction: The draft GA resolution on privacy on the Internet

At the end of October 2013, a draft General Assembly resolution calling for the right to privacy on the Internet was sponsored by Brazil and Germany. (photo: a panopticon, credit)

The draft resolution reaffirms the human right to privacy. It calls upon states to take measures to put an end to violations of these rights (operative para. 4 b), calls upon states to review their procedures, practices and legislation concerning the extra-territorial surveillance of private communications (para. 4 b) and calls upon states to establish independent oversight mechanisms capable of ensuring the transparency and accountability of state surveillance of communications (para. 4 d).

Although the draft resolution does not mention the United States or the National Security Agency (NSA), it is indirectly reacting against the NSA’s recent espionage and surveillance activities conducted in a number of European states, including France, Italy, and Spain. This two-part post will focus on surveillance of German officials including the chancellor Angela Merkel and of ordinary persons in Germany by way of example. Spying on government officials concerns general international law, which will be the focus of Part I of this post. Part II will focus on the bugging of the communication of private persons, which implicates human rights law.

Breach of international law vis-à-vis the surveilled states

The interception of communication by government officials, agents, and authorities seems to constitute espionage. However, there are no specific international law norms that would contain or regulate espionage.

Spying has been more common (and more acceptable under international law) during war and under the international rules of armed conflict. If the United States seek to justify their surveillance activities by pointing to the “global war on terror” or, to use the term employed by former US legal adviser Harold Koh, “armed conflict with Al Qaeda, as well as the Taliban and associated forces”, the US would first have to show that there is indeed, in Germany, an armed conflict of this type. This seems difficult to demonstrate because the geographic and substantive nexus to the battlefield is lacking. Read the rest of this entry…


Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, Part II

Published on September 24, 2013        Author: 

The_Great_Wall_of_China_at_JinshanlingThis is the second part of a post on the Beijing Human Rights Forum held in September 2013 in anticipation of the upcoming Universal Periodic Review of China. Part I introduced the pending Review, described recent human-rights-related legal reform in China, and summarized governmental attitudes on human rights expressed at the Forum. (photo credit)

Voices against human rights universalism

The most vocal human rights relativist at the Forum was Lord Davidson of Glen Clova, House of Lords, UK, a former General Advocate for Scotland. He asked the question “Is it correct to regard human rights as universal?”, and answered it with a vigorous “no”, drawing on examples of prisoners’ voting rights, same-sex marriages, and the like.

Professor Li-Ann THIO from Singapore gave another powerful human rights-relativist talk. According to professor Thio, the goal should be human welfare, whether through human rights or other venues. The focus should be more on results, more on “doing good than on feeling good”. Professor Thio concluded with the question that she thought should be asked to everyone: Do you want the right to a house, or do you want a house?

The answer might seem obvious to rights-sceptics like THIO. But it merits two remarks: First of all, the realisation of most needs and wishes of personal life such as having a house, depends on complex economic, financial and political conditions. People wanting a house are completely dependent on those external conditions if they cannot at least have a say in shaping policies that influence them. Even with regard to the house itself, most people will prefer to decide for themselves whether they indeed want a house, or whether to spend their money first on the education of their children, or on world-wide travelling, for example. Some individuals who prefer non-settled living may indeed not even want a fixed house, and want to remain free to decide on their lifestyle.

Second and most importantly, people do not only want a house but they also want to be able to rely on their home and want to be sure that they cannot be simply evicted for the sake of some infrastructure project. This security is only given when they have a right to the house. In that sense, having a right to a house is an indispensable precondition of securely having a house.

The “putting the people first”-philosophy of the Chinese Government and the “Chinese dream”

The idea that a government should first of all provide a house (without necessarily granting a right to a house) is just one concretion of the Chinese Government’s philosophy of government for the people. In fact, a number of Chinese speakers highlighted the Chinese concept of “putting the people first”-philosophy. This appears to mean both that the group has a certain priority before the individual and also that the welfare of the people must be the objective of government, that “the state is for the people“, as HUANG Mengfu, Vice-Chairman of the National Committee of the 11th CPPCC, Chairman of the China Foundation for Human Rights Development, said. Besides, and somewhat in contrast, LI Junru, Vice-President of the China Society for Human Rights Studies said that “the dignity of the state is a precondition of dignity of individuals“.

The idea of a government for the people implies that a pure output-legitimacy of governance suffices. My objection would be that the outcomes are often controversial. Read the rest of this entry…


Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, Part I

Published on September 23, 2013        Author: 

BeijingWatchTowerThe Beijing Human Rights Forum, the 6th of its kind was held in “the golden season of autumn” on 12-13 September 2013, under the theme: “Constructing an Environment for Sustainable Human Rights Development”. The Forum took place at a critical date, only a few weeks before the second Universal Periodic Review of China, which is scheduled for October this year. As a heavily government-influenced event, the Forum shed some light on what to expect from the Chinese Government in the upcoming review.

The Universal Periodic Review of China

The compilation prepared by the High Commissioner for Human Rights (UN Doc. A/HRC/WG.6/4/CHN/2 of 16 Dec. 2008) lists the international obligations which bind China and which thus form the yardstick of the review: China has ratified more than 20 international Human Rights Covenants, among them the CECSR, the CAT, the CEDAW, and the CPD. Importantly, the ratified treaties are not self-executing in the Chinese legal system, i.e. they cannot be directly applied by Chinese courts (XUE Hanquin and JIN Quian, “International Treaties in the Chinese Domestic Legal System”, Chinese Journal of International Law 8 (2009), 299-322).

So far, China has not ratified several important treaties, such as the Rome Statute. It signed the CCPR in 1998, but did not ratify it. Meanwhile, the time lapse after signing  the CCPR has been longer than the 15 years it took the ratify (which signed in 1977 and ratified in 1992) – but we should not forget that the USA has, as opposed to China, never ratified the CESCR.

In the first UPR of China in 2009, a number of recommendations were made to the country. China accepted some but rejected many; among them very important ones such as to ratify the CCPR as quickly as possible and to withdraw the Chinese reservation to Art. 8(1) CECSR (freedom of trade unions), and to become a party to the Rome Statute.

According to para. 34 of the UPR foundational document (“United Nations Human Rights Council: Institution-building, I. Universal Periodic Review Mechanism”, Annex 1 to High Commissioner’s resolution 5/1), the focus of the second UPR will be first of all the implementation of the accepted recommendations of the previous cycle. This means that even if China subsequently tackled some of the recommendations it had formally rejected, these aspects cannot officially be on top of the review agenda. Read the rest of this entry…

Filed under: Human Rights

Women on Board: The EU Commission’s Proposal for a Directive on Improving the Gender Balance among Non-Executive Directors of Companies Listed on Stock Exchanges and Related Measures

Published on November 30, 2012        Author: 

Anne Peters is Professor of International and Constitutional Law, University of Basel,  and currently fellow at the Wissenschaftskolleg Berlin.

1. Background and core contents of the proposed Directive

On 14 November 2012, the EU Commission tabled a proposal for a Directive on a highly sensitive issue and did so without using the ‘Q-word’ (COM(2012) 614 final). The Commission bases its proposal on Art. 157(3)TFEU which empowers the EU to adopt ‘measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation’. The proposed Directive requires that

‘Member States shall ensure that listed companies in whose boards members of the under-represented sex hold less than 40 percent of the non-executive director positions make the appointments to those positions on the basis of a comparative analysis of  the qualifications of each candidate, by applying pre-established, clear, neutrally formulated and unambiguous criteria, in order to attain the said percentage at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings.’ (Art. 4(1)).

The Directive further holds that

‘In order to attain the objective laid down in paragraph 1, Member States shall ensure that, in the selection of non-executive directors, priority shall be given to the candidate of the under-represented sex if that candidate is equally qualified as a candidate of the other sex in terms of suitability, competence and professional performance, unless an objective assessment taking account of all criteria specific to the individual candidates tilts the balance in favour of the candidate of the other sex.’ (Art. 4(3)).

The proposed Directive is equally applicable to various board structures for listed companies that exist in member states, both to dual systems (separate management and supervisory boards) and to unitary systems combining management and supervisory functions.

Measures to improve the gender balance through quotas are highly controversial both politically and in legally. Many states of the world have been experimenting with quotas for women in public employment/civil service and for political elections/party lists. Imposing by law quotas for women onto the business sector raises additional legal issues, because such legislation interferes with the business actors’ rights of property, economic freedom, and the freedom of association. Reacting to the conspicuously meagre presence of female managers, some EU member states, notably Norway and Denmark, have already introduced quotas, goals, or reserved seats in the boards of companies’ management positions. In other states such as Germany, such a policy is totally contested. This post sketches out the main legal issues hoping to trigger further debate.

Read the rest of this entry…


The Constitutionalization of International Law: A rejoinder

Published on August 4, 2010        Author: 

Editor’s Note: This post continues our discussion of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law. In this post Prof. Peters responds to earlier posts by Professors Dunoff and Trachtman , Steven Wheatley, Jean Cohen, and  Dan Bodansky.

It is an honour to receive comments by distinguished experts on constitutionalism and international law. And it is fun to engage in a substantial discussion on difficult issues.

1. Method: All commentators raised important methodological issues.

Description and (‘top down’) prescription

Dunoff and Trachtman reproach us of a ‘top down’ approach to constitutionalism. In the introductory chapter, it was made clear that the book is, as such, a normative exercise, on a middle level of abstractness, and hooking onto existing legal rules, principles, and institutions. To the extent that this meant to ‘extrapolate’ trends (of constitutionalization), the study included the claim that these trends actually exist (a claim which was openly formulated in the book).

Dunoff and Trachtman also reproach us of embracing an ‘overly heroic vision of the law’. This critique manifests a disciplinary rift in the approaches of the two books, ours and the one edited by our critics. (see here)Dunoff and Trachtman espouse a more empirical method, more informed by social science. In contrast, we as a trio have not attempted to apply sociological methods, neither in quantitative not in qualitative terms. Our arguments are, as declared in Chapter 1, normative ones.

International constitutional law and politics

Steven Wheatley points out that the ‘language and metaphors of constitutionalism suggests a realm of (“neutral” and “objective”) discourse that sits above … politics’, whereas in reality the ‘global constitutional settlement … is the product of political debate, discourse, and will’. Along that line, Dunoff and Trachtman suspect us of *’under-estimating the role of international politics’.

Dunoff and Trachtman are right in saying that the enactment of positive law is only a ‘starting point, rather than a culmination’. Nevertheless, any (political) action does need a starting point. Under the rule of law, positive law is indeed a conditio sine qua non of governmental action. I postulate that there is an international rule of law which requires international governance to be based on legal rules (i.e. on formal and general prescriptions) as opposed to governance by ad hoc decisions.

Moreover, law and politics should not be viewed as distinct realms, but rather as deeply intertwined. Law is both the product (and desired consequence) of political activity, and an organizer and limit of political action. In particular, constitutional law is a branch of law which is very close to politics. Read the rest of this entry…

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The Constitutionalization of International Law: Conclusions

Published on July 28, 2010        Author: 

Chapter 7  of The Constitutionalization of International Law discusses the pros and cons of the constitutionalist paradigm. Critics of global constitutionalism doubt the empirical reality of the phenomenon called constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is in normative terms dangerous. The chapter counters these objections.

1. The term ‘constitution’ might be a misnomer when applied to the international sphere. Also, the danger of blowing up an academic paper tiger is very real. Global constitutionalism as an academic agenda should follow the middle path between merely self-dignifying the status quo on the one hand and hanging onto pipe dreams on the other. In order to gain acceptance in the political realm, global constitutionalists might highlight the current situation of global interdependence. With such a state of affairs, national and global public interests tend to converge more and more, national interests and universal idealism are not necessarily in opposition. Given this convergence of global and national, an ‘idealist’ global constitutionalism which promotes global interests, may even, at least in the long run, further national economic and political interests as well, although some states benefit more than others.

2. The constitutionalist reading of international law might raise dangerously seductive over-expectations. Read the rest of this entry…

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Dual Democracy

Published on July 21, 2010        Author: 

This post summarises the ideas in Chapter 6of Klabbers, Peters & Ulfstein, The Constitutionalization of International Law.

1. Overview of the Argument

Global governance is undemocratic even under a modest standard. The deficits lie in the institutional design of the international organizations and bodies themselves, they result from the way states are integrated into the system of global governance, and finally they concern the relationship between citizens and the international institutions.

On the premises that all rule over persons should be democratic, and that the globalization-induced hollowing out of domestic democracy should be compensated as far as possible, the democratization of global governance is inescapable. Because a stand-still or roll-back of global governance is unfeasible, and therefore no way to re-invigorate democracy, a new design to enhance global democracy is needed.

Global constitutionalism requires dual democratic mechanisms. These should relate both to government within nation states and to governance ‘above’ states, thus to multiple levels of governance. The result should be a multi-unit democracy, built with domestic and international building blocks.

A fully democratized world order first of all rests on democratic nation states, thus on democracy within states. The spread and support of national democracies constitutes a kind of indirect global democratization. It already is and should be further encouraged by international law. Because of its fundamental and systemic importance, the requirement of democracy within states should be acknowledged as a global constitutional principle.

 ‘Above’ states, both the production of primary international law and the international institutions and their secondary law-making can and should be democratized on two tracks. On the one hand, citizens should continue to be mediated by their states which act for them in the international relations (statist track). On the statist track, states as principals of international institutions should be reasserted and their influence improved. But because the ultimate reference point of democracy are natural persons, such a state-mediated democracy is present only to the extent that states really are the representatives of their citizens. It follows that we can meaningfully speak of an indirect democratization of the global order on the statist track only when all states have realized domestic democratic government. As long as not all states are democratic, a large number of people are not represented in a democratic sense by their states in the international institutions. Read the rest of this entry…

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