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Remaking Globalization for the Local: The Real Search for Equality and Diversity in International Law

Published on November 9, 2016        Author: 
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From Western liberal democracies in the United States and the European Union, to historically democratic developing countries such as the Philippines, ignored, disenfranchised, and disempowered local communities emphatically made themselves heard in elections and referenda around the world.  For better or for worse, the international economic order will be remade, somehow.  It would be specious and condescending to merely say that this is the rise of “populism” without truly understanding the concerns of local communities who have driven electorates all over the world to reject any form of the “establishment” – whether they be traditional politicians and parties, State apparatuses, international organizations, mainstream media, or multinational corporations.

The supranationalist structures of modern international law’s prominent institutions – the United Nations (UN), the Washington Consensus behemoths such as the World Bank (WB) and the International Monetary Fund (IMF), the World Trade Organization (WTO), the European Union (EU), among others – are premised on deepening inter-State cooperation while still ensuring full respect for the basic UN Charter of the “principle of sovereign equality” of all States. However, the actual power and felt impact of these global institutions on the daily modern lives of individuals, groups, and local communities reveals serious fissures that expose an obvious imbalance between the terms of international cooperation and States’ sovereign equality – from the micromanagement of Greek agencies by EU fiscal managers and inspectors during the worst nadir of the EU’s financial crisis; the enforced austerity and structural adjustment programs of World Bank technocrats harnessing the leverage of the Bank’s conditionality lending to developing countries; the loss of jobs and social dislocations caused to communities throughout manufacturing states in the United States of America when multinational corporations move operations offshore to China or Mexico; as well as the drastically increased competition for resources and the rise in challenges to religious, social, ideological and group identity posed by cleavages within multicultural societies emerging from formerly hermetic communities now overrun by refugees and other immigrants fleeing political persecution, climate change-related natural disasters, and other humanitarian crises.

Restive “Westphalian” political elites push back against the seeming tyranny of the international system and its global institutions, in order to increasingly assert the sovereign prerogative of states and their supposed ‘independence’ from any form of international governance that ultimately erodes any of these elites’ real bases of power. The recent rise of populist, anti-establishment, anti-trade, and anti-internationalist leaders throughout established democracies – from France’s Marine Le Pen, the United States’ Donald Trump and (to a certain extent) Bernie Sanders, the United Kingdom’s Nigel Farage, the Philippines’ Rodrigo Duterte, Venezuela’s Hugo Chavez, among others – is no coincidence. ‘Silent’, faceless, and individually powerless, electoral majorities are clearly voting for leaders who project themselves as best able to roll back the worst excesses of inequality, insecurity, and uncertainty faced by households from an (actual or imagined) unrestrained international order. The rise of an unstable, deep populism throughout liberal democracies around the world does not only express what IMF Managing Director Christine Lagarde calls “a groundswell of discontent” against globalization, but rather, a return to a much harder ‘Westphalian’ version of State sovereignty insulated from the common interests and shared concerns of this century’s community of nations forged and united in the aftermath of the First and Second World Wars.

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Human Rights Obligations of Non-State Armed Groups: Realistic or Overly Ambitious? Book Discussion

Published on November 3, 2016        Author: 
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Dr Murray’s book, Human Rights Obligations on Non-State Armed Groups talks about non-state armed groups as a reality that needs to be addressed: they exist, they exercise control, and therefore we must talk about their responsibilities. While this might seem self-evident, his sober analysis is particular commendable in the context of the current counter-terrorism atmosphere and discourse. It is a very well-researched, thorough and thoughtful book. It is particularly impressive in its wide research about the practice of many different groups.

The book raises many interesting questions on legal theory, but also on mechanisms to engage in dialogue with non-state armed groups. I would like to focus on two aspects: the legal “de facto control” argument and the dilemma which, to my mind, human rights obligations of non-state armed groups raise.

After having established that non-state armed groups have legal personality, the book argues that the “prescriptive jurisdiction theory” allows states – which are normatively higher positioned than their subjects, including non-state armed groups – to impose binding obligations on non-state armed groups as a matter of international law.

This is indeed what states have done in Common Article 3 to the four Geneva Conventions by imposing IHL obligations on each party to non-international armed conflicts, meaning also non-state armed groups. Through practice and opinio juris they have also, by now, by and large accepted that non-state armed groups have IHL obligations under customary international humanitarian law.

Unlike Common Article 3 and Additional Protocol II, however, human rights treaties are not generally worded in a manner that would suggest that they are binding on non-state armed groups. Other traditional sources of international law to create international rights and obligations would be customary law or general principles. However, the book discards both – customary law for lack of evidence; and general principles for being too general and vague. While this is correct, in my opinion, the analysis could have benefitted from looking a bit more closely at state practice and positions. Read the rest of this entry…

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Was the Downing of the Russian Jet by Turkey Illegal?

Published on November 26, 2015        Author: 
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There has been much talk of improvement of the relationship between Russia and the West following the deadly terrorist attacks in Paris two weeks ago. Whatever gains have been made on that front will risk being reversed following Tuesday’s incident involving the Russian and Turkish air forces. Although the exact facts are—and likely will remain—disputed, the essence of the incident is known: a Russian fighter jet was shot down in the morning of 24 November by the Turkish military near the Turkish-Syrian border. This post weighs the international law considerations raised by the incident and suggests that on the basis of the available facts, the question from the title should likely be answered in affirmative.

The Russian SU-24 jet was in the region as part of the recent military offensive conducted by the Russian forces with the consent of the government of Syria against a number of armed groups on the Syrian territory, including the notorious Islamic State. The central contested fact is, of course, whether the aircraft had crossed over the border into the Turkish airspace. The Turkish prime minister Ahmet Davutoğlu emphatically claimed that it had; the Russian president Vladimir Putin denied it in equally strong words. An unnamed US official was reported as having said ‘that the Russian incursion into Turkish airspace lasted a matter of seconds’. Later, a Turkish letter addressed to the President of the Security Council (and duly leaked online) stated the incursion had lasted for exactly 17 seconds.

The legal analysis under international law is reasonably clear if the Russian version of the events is taken as factually accurate. The shooting down of another State’s military aircraft amounts to a use of force against that State. The recognized exceptions of the use of force in self-defence and under the authorization of the Security Council being inapplicable on the facts, the destruction of the jet would be caught by the general prohibition on the use of force under Article 2(4) of the UN Charter and thus unlawful.

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The Constructive Ambiguity of the Security Council’s ISIS Resolution

Published on November 21, 2015        Author: 
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Security Council Adopts Resolution on Fighting ISIL

UN Photo/Loey Felipe

On Friday, the UN Security Council unanimously adopted resolution 2249 (2015), condemning a series of recent terrorist attacks by Islamic State (IS, ISIS or ISIL). The text of the resolution, together with statements of Council members, is available here. This resolution was proposed by France and superseded two competing earlier drafts by Russia. The resolution determines that IS constitutes “a global and unprecedented threat to international peace and security.”

But the resolution itself is, perhaps, an equally unprecedented measure by the Security Council. The resolution is clearly designed to provide legitimacy for the measures being taken, and to be taken, against IS by giving the Council’s imprimatur to such measures. In particular, the resolution is worded so as to suggest there is Security Council support for the use of force against IS. However, though the resolution, and the unanimity with which it was adopted, might confer a degree of legitimacy on actions against IS, the resolution does not actually authorize any actions against IS, nor does it provide a legal basis for the use of force against IS either in Syria or in Iraq.

The main operative paragraph of the resolution is para 5, in which the Council:

“5.   Calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with Al-Qaida, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria;”

Before we attempt to decipher what this paragraph actually means, it is important to note that the resolution was not adopted under Chapter VII of the Charter. Or rather, the resolution does not use the “acting under Chapter VII” formula that is usually used to signal that the Security Council intends to take binding action, despite a couple of determinations in the preambular paragraphs about the existence of a threat to international peace and security, which (determinations) presumably are made under Article 39 of the Charter. In op. para. 1 of the resolution, the Council similarly “regards all such acts of [IS] terrorism as a threat to peace and security,” which again implicitly invokes Article 39. As the ICJ’s Namibia Advisory Opinion makes clear, the lack of reference to Chapter VII in a resolution does not mean that it is not to be regarded as binding nor does it mean that the resolution does not have operative legal effect. However, for the resolution to have those effects the Council must actually decide to do something or to authorize something.

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The 21st Century Atlantis: The International Law of Statehood and Climate Change-Induced Loss of Statehood

Published on November 8, 2013        Author: 
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AbanyanuAbhimanyu George Jain is a recent LL.M. graduate of Georgetown University (2013).

Plato wrote of the legendary island kingdom of Atlantis: “…in a single day and night of misfortune all your warlike men in a body sank into the earth, and the island of Atlantis in like manner disappeared in the depths of the sea.” It is not clear whether there ever was a kingdom of Atlantis which disappeared into the sea. But a substantially similar fate seems set to befall several low-lying, small island states in the Indian and Pacific Oceans.

In the next 50-100 years it is possible that the entire territory of the Maldives, Tuvalu, Nauru and other island countries will be submerged as a result of increasing sea levels caused by climate change. International law stipulates that territory is a necessary prerequisite for statehood. Will these states cease to be states when they lose their territory?

The importance of this question is underscored, first, by the blatant unfairness of loss of statehood in this fashion. These states have barely contributed to climate change and have been at the forefront of efforts to combat climate change, yet they are to be the first victims of a disaster not of their making. Second, these states own vast economic resources in the form of exclusive economic zones. The dissolution of their claims to these resources may incite a global race to appropriate the fruits of these entitlements, to the detriment of international stability. Read the rest of this entry…

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Comments Off on The Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights: An Overview of Positive ‘Obligations to Fulfil’

The Rise and Fall of Eunomia – Episode 1: Eunomia rising

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Frédéric Mégret is an Assistant Professor of Law, the Canada Research Chair on the Law of Human Rights and Legal Pluralism, and the Director of the McGill Clinic for the Sierra Leone Special Court, McGill University. Alexandra Harrington is currently a Doctor of Civil Law candidate at  McGill University

It had been a masterfully planned operation from start to finish. When Grigory Savros heard the news that, following a massive volcanic eruption in the South Pacific, a new island, roughly six by eight miles, had emerged, he at first paid little attention. The incident had of course generated considerable popular interest and, as the only known island of its kind in several millennia, was the buzz of geologists. But the volcanic fumes arose hundreds of miles away from the nearest flight path, and the island was first reported as barely habitable. Savros had other things to think about. One of the world’s richest men, he had made his fortune betting against the financial stability of emerging economies through complex derivative products that only a few insiders – if any – could fathom. He had since reinvented himself as, to use the Times’ cover’s expression, ‘The World’s Biggest Philanthropist,’ one involved in everything from art to human rights, fighting global diseases to reducing global warming. Besides, he was already the proud owner of no less than two islands (one in the Caribbean, and one in the Mediterranean) in which he hardly ever spent any time.

But one detail had caught Savros’ attention and vaguely stirred up recollections from his international law days, before he became a wealthy investor, when he was still what he sometimes described in interviews as an ‘idealistic law student’ (he had quickly abandoned his initial idea of working in international law, a discipline he had found to be largely irrelevant to the ways of the world). The island was beyond the territorial waters or even the exclusive economic zone of any state. As such, it was no less than the first bit of prime terra nullius real estate to emerge in at least 200 years (with the exception of ‘fake’ terra nullius of colonization). Of course, this fact had not escaped several foreign ministries, but of the few states with any presence in the region, most concluded that it would be far too expensive to maintain a base on the island, and quickly gave up the notion. The land and the surrounding waters were devoid of any particular resource, at least the sort that could be exploited profitably. These were hard financial times globally, and no state had the appetite for an extra piece of rock in the mid-Pacific, with no economic or geopolitical value. One landlocked state in Central Asia expressed some interest in acquiring the island so that its Great Leader could claim to have ‘brought the sea’ to his country, but the plan quickly foundered. There was some vague talk at the UN General Assembly of ‘internationalizing’ the rock (which still had no name), but no one really knew what for, and the matter was deferred to a committee. A window of opportunity had been opened, but no one could quite suspect what use it would be put to.

Genesis and settlement

With no expressions of interest from states in the region, Savros summoned his inner circle of advisors to the privacy of his mountain getaway. What emerged from this evening is still a matter of speculation and what we know of it has been reconstructed from scattered archives and memoires of those who were in attendance. At first, Savros had apparently been characteristically enigmatic about the reasons for bringing them together at short notice. But after dinner and over glasses of (very good) cognac, he had flipped a switch in his parlor, turning on a spectacular holographic display of a paradisiacal island, rich with fields, roads and villages hovering just above the guests, and had made the following almost comically solemn announcement: ‘Ladies, and gentlemen, welcome to the soon-to-be state of Eunomia, the first state built by and for civil society, a state dedicated to the highest values of justice, solidarity and freedom!’ The guests had been flabbergasted and, were it not for Savros’s reputation for fits of anger, might have shared a piece of their mind that this all looked rather megalomaniac. Savros, however, had obviously given the idea considerable thought and over a night of passionate discussions had little by little convinced one after the other that this was not only a project worth trying, it could very well be the defining project of the age.

During the next weeks the decision was made to launch a secret operation, codenamed ‘Tiger Lily,’ that would begin to turn the project into reality. It was to involve, at first, six cargo ships (including two mega-container carriers, one supertanker, two large ferries and one commanding ship). The plan was for these ships to set sail from several points around the globe with shipping orders indicating routine trading routes. Read the rest of this entry…

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