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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…

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Canute’s Kingdoms: Can small island states legislate against their own disappearance?

Published on February 20, 2019        Author: 
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It was recently drawn to my attention that Tuvalu and Kiribati have in recent years passed legislation, following a relatively common scheme, that removes reference to the low tide line as the baseline for measuring maritime zones and replaces it with a system of fixed geographic coordinates. (The Marshall Islands has taken a somewhat similar approach.) On its face, this may constitute a claim that their maritime baselines are permanently fixed. That is, they will not retreat or be redrawn with rising sea levels.

This might seem a small matter in the range of legal issues implicated by climate change – it is not.

As every public international lawyer probably recalls, at least after the South China Sea arbitration, an island (within the meaning of article 121 of the UN Convention on the Law of the Sea) generates a full suite of maritime zones but must be more than a mere rock incapable of sustaining human habitation or a maritime feature which is only above water at low tide. Imagine your national territory is composed of a series of islands, some of them quite small but generating extensive maritime zones. Long before you risk becoming completely “de-territorialised” by rising sea levels you might lose much of your national livelihood if islands previously generating exclusive economic zones become mere low tide elevations.

So the question becomes, can a state freeze the baselines from which its maritime zones are projected? Read the rest of this entry…

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‘Open for Business’: The Special Criminal Court Launches Investigations in the Central African Republic

Published on February 8, 2019        Author: 
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On 22 October 2018, the Special Criminal Court (SCC) held its inaugural session in Bangui, the capital of the Central African Republic (CAR). Several weeks later, the Special Prosecutor, Col. Toussaint Muntazini, announced his long-awaited prosecutorial strategy. Coming three years after Parliament initially requested a specialist ‘war crimes’ tribunal for CAR, these two acts mark a watershed in the country’s fight against impunity. After providing some background on the SCC, this post examines the prosecutorial strategy and the prospects of accountability in CAR.

The Legal Framework

Established by domestic legislation in June 2015, the SCC is a hybrid tribunal fully integrated into the Central African justice system. It is staffed by national and international prosecutors and judges, and relies on logistical and technical support from the UN peacekeeping mission in CAR. Funded by voluntary contributions, the SCC is functionally independent from both the United Nations and CAR government. Its five-year mandate, which officially began on 22 October 2018, is renewable.

Prosecutorial Strategy

Why did the SCC publicize its prosecutorial strategy? Other tribunals, for instance the Special Court for Sierra Leone and the International Criminal Tribunals for Rwanda and the former Yugoslavia, never made their strategies public (to the extent such strategies existed). The SCC’s decision to ‘go public’ is more in line with the International Criminal Court (ICC)’s practice of adopting formal policies on a variety of matters. Read the rest of this entry…

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A Positive Take on the Legacy of the 1978 Judgment in Ireland v. United Kingdom

Published on February 7, 2019        Author: 
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In September 2018, a request by the Irish Government to refer the Ireland v. United Kingdom revision case to the Grand Chamber of the European Court of Human Rights (ECtHR) was refused, closing a door that had been reopened after forty years. The fact that the ECtHR arrived at a finding of inhuman and degrading treatment ‘only’ has been maligned. In this post, I’d like to highlight an alternative perspective and suggest that this judgment elevated the gravity of the ‘other’ forms of treatment and set in motion a pioneering approach to the interpretation of Article 3 ECHR.

Subsequent to the Chamber judgment in March 2018, there was much debate (including in this blog) about whether the ECtHR should have revised its 1978 finding of inhuman and degrading treatment in light of the additional evidence. Some have supported the ECtHR’s exercise of restraint in the use of its exceptional revision powers under Rule 80 of the Rules of Court, pointing out the need for legal certainty. Others have critiqued the Court’s approach to the new evidence or have lamented the Court’s failure to follow the European Commission on Human Rights’ finding of torture, opening the door to manipulation of the torture-versus-ill-treatment distinction. All have opined that the facts of the case would give rise to a finding of torture today.

A further commonality across the commentary is that all refer to the finding of inhuman and degrading treatment ‘only’. The 2018 judgment itself describes the applicant Government’s request for the Court to find that the ‘five techniques’ ‘amounted to a practice not merely of inhuman and degrading treatment but of torture within the meaning of Article 3 of the Convention’ (para. 8). In the context of these debates, and the revision request itself, the distinction between torture and inhuman and degrading treatment ‘only’ has been amplified. That is, there is a pervasive and implicit sense that inhuman and degrading treatment is in some way not as bad as torture. In 2018, as was observed in 1978, the Court’s failure to arrive at a finding of torture overshadowed the finding of inhuman and degrading treatment. Read the rest of this entry…

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Ruling of the Spanish Constitutional Court Legitimising Restrictions on Universal Criminal Jurisdiction

Published on February 6, 2019        Author: 
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A short history of universal jurisdiction in Spain

Last 20 December, the Spanish Constitutional Court (hereinafter, TC) issued a ruling rejecting an application made by more than fifty Socialist Members of Parliament to strike out a bill introduced by the Conservative Party in 2014. In practice, the aforementioned bill put an end to a law of 1985 which provided for one of the broadest universal jurisdiction regimes for criminal matters in the world. Spain had been at the centre of human rights litigation, with well-publicized cases against former presidents Pinochet and Jiang Zemin or top officials of the Israeli Government. Needless to say, such cases had caused a few diplomatic headaches to the Spanish Government, in the course of time. However, a former minister of justice had admitted that in twenty years there had actually been only one conviction in application of universal jurisdiction rules.

A first reform to restrict the extraterritorial jurisdiction of Spanish criminal courts came about in 2009 by an agreement between Socialists and Conservatives. Contrary to the original law of 1985, after 2009 the accused had to be found in Spain, the victim had to be Spanish or there had to be some other relevant connection with the forum. Subsequently, the abovementioned reform of 2014 granted jurisdiction for a larger number of crimes committed abroad but made it practically impossible to prosecute if the crime was completely unrelated to Spain. Read the rest of this entry…

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India’s Strange Position on the Additional Protocols of 1977

Published on February 5, 2019        Author: 
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After four decades of their adoption, India continues to have an ambivalent position on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. India has not yet become a party to the two Additional Protocols (APs). While it has not explained anywhere its position for not becoming a party, its recent clarification in the form of an answer in the Indian parliament does not provide any reasons for not becoming a party to the APs. This clarification came in the way of a response by the Minister of State for External Affairs to a question posed in the lower house of the Indian Parliament on 02 January 2019. The question posed by a Member of the Parliament sought clarification as to whether steps have been taken to ratify the APs and if not, what are the reasons for not becoming a party, if necessary, with reservations. The question posed by a Member of the Indian Parliament is as follows:

(a) whether steps have been taken to ratify the Additional Protocol I and II to the Geneva Conventions;

(b) if so, the details thereof and the steps taken to bring domestic laws in compliance with the Protocols; and  

(c) if not, the reasons for abstaining in spite of the availability of the option of ”ratification with reservations”?

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Joint Symposium: Chatham House Paper on Proportionality in the Conduct of Hostilities

Published on February 4, 2019        Author: 
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This is the final post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment.

The new research paper published by Chatham House on Proportionality in the Conduct of Hostilities is a rigorous and thoughtful exposition of the civilian side of the notion of proportionality under international humanitarian law (IHL). This brief post focuses on three points that are raised by the paper: first, the way in which certain difficult questions concerning the reach of proportionality considerations are addressed; second, the question of the status of the natural environment; and third, the potential impact of the paper.

The proportionality calculus calls for a comparison of the expected incidental harm to civilians caused by an attack and the concrete and direct military advantage anticipated. Amongst the many difficult questions that arise from this formulation is the reach of the test, e.g. what type of harm is included, psychological or only physical harm? When might harm be considered as having been ‘caused’ by an attack? Does it include so-called ‘reverberating’ harm, manifesting sometime after an attack (as in the case with unexploded cluster sub-munitions)?

The research paper addresses this question of the reach of the proportionality analysis through the dual test of admissibility and weight. This has the significant advantage of offering a more nuanced way of dealing with some of these complicated questions concerning the scope of the proportionality analysis. For example, on the question of reverberating harm, the paper takes the position that ‘the geographic or temporal proximity of the harm to the attack is not determinative’ and should not affect the admissibility of reverberating harm (para 63). Instead, ‘[f]actors such as the passage of time between the attack and the injury, or the number of causal steps between one and the other, may affect the likelihood of the harm occurring and thus the weight to be assigned to it’ (para 64). That reverberating harm, manifesting sometime after an attack rather than at the time of the attack, must be taken into account in assessing proportionality must be right – there is nothing in the Additional Protocol I (API) formulation of the proportionality test that suggests excluding such types of harm. The reference in API is simply to an ‘attack which may be expected to cause incidental’ civilian harm – as the paper states, harm is caused by an attack if, ‘but for’ the attack, the harm would not occur (para 45), regardless of any proximity considerations. Instead, the proximity of expected harm to the attack might be relevant to the weight to be given to that potential harm. Read the rest of this entry…

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WTO Dispute on the US Human Rights Sanctions is Looming on the Horizon

Published on January 31, 2019        Author: 
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At the turn of the year, Venezuela initiated a WTO dispute with the United States. In a nutshell, Venezuela questions WTO-consistency of a number of coercive trade-restrictive measures (economic sanctions) imposed by the United States. Some of those restrictions were allegedly imposed on the human rights grounds.

US sanctions against Venezuela

The United States has been consistently imposing trade-restrictive measures against Venezuela, yet none of them has ever been challenged at the WTO. Most likely, the last wave of such restrictions is a spark that lit the fuse. In recent years, the Trump Administration introduced additional restrictions on Venezuela’s financial sector, leaving the country’s finances in shambles, as well as sanctions directed against the country’s gold sector. According to the media reports published in January 2019, the United States considers even tougher sanctions, particularly the ones that can impede Venezuela’s oil industry.

Human rights sanctions against Venezuela

The United States is notorious for its practice of economic coercion, which has been debated at length within the international community. Economic measures imposed to promote human rights entered the US foreign policy agenda under President Carter. In the following decades, the US has made ample use of them. 

In December 2014, the US Congress enacted the Venezuela Defense of Human Rights and Civil Society Act of 2014. The enactment of the act was triggered by a number of events, particularly by the deteriorated living standards and the violent crackdown on the anti-government protesters. The act authorizes the President to impose various targeted sanctions, – sanctions against current or former government officials responsible for acts of violence or serious human rights abuses against protesters. The ambit of such sanctions includes blocking of assets of the designated individuals as well as travel restrictions. In pursuit of its authority, President Obama declared the national emergency in respect of the situation in Venezuela and issued an Executive Order 13692 of March 8, 2015, which implements the aforesaid human rights sanctions.

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Joint Blog Series on International Law and Armed Conflict: Are Sieges Prohibited under Contemporary IHL?

Published on January 30, 2019        Author: 
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Editor’s Note: This post the final post in the joint series hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict held at the European University Institute in Florence in July.

Contemporary armed conflicts in Syria, Yemen or Iraq have seen a resurgence of sieges of cities and other densely populated areas. This ancient—some would say archaic or medieval—method of warfare is expected to be increasingly used in future urban conflicts. The catastrophic humanitarian consequences of recent prolonged sieges—such as in Ghouta (Syria), where civilians are starving because of lack of access to objects indispensable to their survival—have led to widespread condemnations by the international community (see e.g., UN Security Council Resolution 2139 (2014)). The question discussed here is what does international humanitarian law (IHL) say about siege warfare? Is it explicitly ruled out? How might IHL rules and principles constrain siege warfare?

No explicit IHL rules against siege warfare

Sieges are not per se an explicitly prohibited method of warfare under IHL. On the contrary, one could say that IHL implicitly allow sieges by merely mentioning steps to be taken to mitigate their negative effects on civilians and civilian objects (Art 27 1907 Hague Regulations; Art 15 GCI; Art 18 GCII; Art 17 GCIV).

Sieges have been used throughout history and military doctrine usually regards sieges as essential to the effective conduct of hostilities in order to control a defended locality and obtain surrender or otherwise defeat the enemy through isolation. Since sieges are a harsh method of warfare and are based on almost complete isolation of the besieged locality, their use will almost inevitably involve frictions with numerous rules and principles of IHL—at least when the besieged area involves civilian presence.

Numerous constraints on siege warfare

There are a number of IHL prohibitions that may constrain siege warfare. These include the prohibition against terrorizing the civilian population (Art 51(2) API; Art 13(2) APII; CIHL Study, Rule 2), the prohibition of collective punishment (Art 75 API; Art 4 APII; CIHL Study, Rule 103) or the prohibition of human shields (Art. 51(5) API; CIHL Study, Rule 97). The most obvious prohibition that impacts siege warfare, however, is the prohibition of starvation of civilians (Art 54(1) API; Art 14 APII).There is also a question as to whether conduct of hostilities rules, and the principle of proportionality in particular, may serve as an additional constrain on siege warfare Article 51(5)(b) of API CIHL Study, Rule 14). The present blog post will focus on the latter two—the prohibition against starving civilians, purposefully or incidentally, and the principle of proportionality.   Read the rest of this entry…

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