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Home Archive for category "International Organisations"

Life Without the WTO – Part I: Stop all this Crisis-Talk

Published on April 25, 2019        Author: 
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Editors’ Note: This is the first part of two posts by EJIL:Talk! Contributing Editor Michael Fakhri.

We hear a lot today about the WTO being in crisis. Some people have focused on institutional changes are imagining life without the DSU if it is not reformed. Others are proposing that the WTO consider life without the US. I think, however, we’re at a moment when it’s worth imagining life without the WTO (or at least radically reimagining the WTO). It is actually not too difficult a task if you look at one place the WTO should not have gotten into in the first place – agriculture – and one place where people conduct cross-border business and the WTO is nowhere in sight – the informal economy. I’ll address those in my second blog post.

But first, all this new talk of a WTO crisis is overblown. The WTO was born into a crisis. In light of the Marrakesh Agreement’s 25thbirthday this month, it is worth recounting some living memory surrounding the WTO. In the final years of the Uruguay round, famers in India argued with each other in the streets and in the newspapers over whether they would benefit from a freer market. Environmentalists around the world re-energized their protest efforts having learned some lessons in trade law from the GATT Tuna-Dolphin cases. And labor unions worried about a regulatory race to the bottom. The food sovereignty movement was galvanized by the advent of the WTO and continues strong to this day. Read the rest of this entry…

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The ICC and US Retaliatory Visa Measures: Can the UN Do More to Support the Privileges & Immunities of the Prosecutor?

Published on April 23, 2019        Author:  and
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On 12 April 2019, the ICC Pre-Trial Chamber II decided to reject the Prosecutor’s request to open an investigation into the situation in Afghanistan on the grounds that an investigation would not be “in the interests of justice,” though it found that the case otherwise satisfied the requirements of jurisdiction and admissibility set forth in the Rome Statute (see recent posts here). The ruling came on the heels of the US revocation on 5 April of ICC Prosecutor Fatou Bensouda’s visa for entry to the US, and prior US threats to take action against the ICC for examining the situations in Afghanistan and Palestine.

While the Pre-Trial Chamber (PTC) made no direct mention of recent US hostility towards the ICC, it appears to have implied, and others have suggested (here, here, and here), that such pressure played a role in the decision. As the PTC noted, “subsequent changes within the relevant political landscape both in Afghanistan and in key States (both Parties and non-Parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future […]” (para. 94).

Senior US officials were quick to claim victory and take credit for the development, ostensibly linking US pressure to the outcome. Alluding to a potential appeal of the PTC decision, as well as the Prosecutor’s preliminary examination into the situation in Palestine, President Trump menaced that US actions against the ICC could continue: “any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response.”

This post considers how the United Nations can—and may be obliged to—play a bigger role in helping to protect the Prosecutor and her team from one form of this US hostility towards the Court: visa restrictions. Despite US obligations under the US-UN Headquarters Agreement to allow the transit of individuals conducting business at UN Headquarters, some ambiguity surrounds the question of when and under what conditions the US will allow the Prosecutor access to Headquarters now that her visa has been revoked. Read the rest of this entry…

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Humanitarian Assistance and Security Council Sanctions: Different Approaches to International Humanitarian Law

Published on April 11, 2019        Author: 
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Under the sanctions regimes established by its resolutions adopted under Chapter VII of the United Nations Charter, the United Nations Security Council (UNSC) can currently impose sanctions on those who obstruct the delivery of humanitarian assistance in eight non-international armed conflict situations. This imposition of sanctions stems from the UNSC’s responsibility to maintain peace, security, and stability. Yet, its approach to humanitarian law (IHL) in these eight regimes has been inconsistent. In most of its current sanction regimes, the UNSC arguably has moved beyond the IHL applicable to humanitarian assistance, with the consequence that it can now sanction obstructions, which are broader than those which would constitute a violation of IHL. This post examines what this means for sanctions investigators and for the enhanced protection of civilians. 

Different Approaches of the UNSC with Respect to Imposing Sanctions on Obstructions to Humanitarian Assistance

The UNSC imposes sanctions in order to respond to threats to peace, security and stability. In the eight sanctions regimes discussed in this post, impediments to peace, security and stability explicitly or implicitly include obstructions to the delivery and distribution of humanitarian assistance and access obstructions.

Yet, the UNSC takes two different approaches when it imposes sanctions on obstructions to humanitarian assistance. In the first approach,  which is taken with respect to Libya and Sudan, there is no stand-alone criterion (the basis for listing by the UNSC or for being sanctioned) on humanitarian assistance, and humanitarian assistance and access obstructions may be considered under other listing criteria relating to violations of human rights or IHL. In these cases, Read the rest of this entry…

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Brexit Means Brexit: Does It so When It Comes to EU Citizenship?

Published on March 15, 2019        Author: 
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Following a dramatic referendum, the United Kingdom triggered Art. 50 of the TEU in March 2017 officially commencing its withdrawal from the EU. At first glance, one of the many consequences of the move is the loss of EU citizenship for all British citizens as they will no longer be ‘holding the nationality of a Member State’ (TFEU, Art. 20(1)). This means losing all the perks that go with an EU passport, among them the freedom of movement, residence, and employment across the Union (id., Art. 20(2)).

A broader question of fairness and justice arises when ca. sixteen million people who have not voted in favour of leaving the bloc and have not committed any fraud or deceit are going to be stripped of their EU citizenship, and all of the privileges associated therewith. Not surprisingly, there have been some speculations on whether (and how) EU citizenship can be preserved by the Brits.

EU Citizenship

In its contemporary form, EU citizenship was established by the TEU back in 1992 providing that an EU citizen is ‘[e]very national of a Member State’ (Art. 9). The drafters of the Treaties could easily avoid using the term ‘citizenship’ and simply assign all the rights to nationals of the Member States but did not do that (William Thomas Worster, Brexit and the International Law Prohibitions on the Loss of EU Citizenship 15 International Organizations Law Review 341, 348 (2018)). However, the true roots of EU citizenship can be found in the Treaty of Paris signed in 1951. The Treaty virtually denounced any restrictions in the employment of professionals ‘in the coal and steel industries’ (Art. 69). Read the rest of this entry…

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Equivalence and Translation: Further thoughts on IO Immunities in Jam v. IFC

Published on March 11, 2019        Author: 
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At the end of February, the Supreme Court of the United States issued a landmark judgment on the immunity of international organizations in Jam v. International Finance Corporation, 58 U.S. (2019). The case concerned the meaning of the 1945 International Organizations Immunities Act (IOIA), which affords international organizations “the same immunity from suit … as is enjoyed by foreign governments.” 22 U.S.C. § 288a(b). Writing for a 7-1 majority, Chief Justice Roberts found that the IOIA incorporates a dynamic immunities regime, equivalent to whatever immunities US law affords to foreign states. The immunities of international organizations are keyed to sovereign immunity. The former evolve to meet the latter. Thus, as the US law of sovereign immunity has shifted from an absolute to a restrictive paradigm with the enactment of the 1952 Foreign Sovereign Immunities Act (FSIA), so too does the IOIA today incorporate merely restrictive immunity for international organizations.

Writing in dissent, Breyer laments the majority’s approach, arguing for a static interpretation of the IOIA on purposive grounds. Given his druthers, Breyer would have interpreted the statute as affording international organizations absolute immunity from suit – which foreign sovereigns were entitled to under US law when the IOIA was enacted in 1945. In his view, a static interpretation best accords with the IOIA’s purpose of freeing international organizations from interference through domestic litigation.

Between Diane Desierto’s thorough recent post on this blog, and Ingrid Wuerth’s preview of the case on lawfare last year, there is no need to rehash the facts and issues here. Suffice it to say that the case mostly plays out on the familiar turf of statutory interpretation – pitting Roberts, the textualist, against Breyer, the purposivist. Read the rest of this entry…

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Governance and the UN Global Compact on Migration: Just another Soft Law Cooperation Framework or a New Legal Regime governing International Migration?

Published on March 4, 2019        Author:  and
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Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

Does the UN Global Compact for Safe, Orderly and Regular Migration (GCM) fulfill the criteria of a legal regime for international migration or is it just another soft law cooperation framework amidst many? If the GCM is merely a cooperation framework, then what is its contribution to international migration law (IML)? Is it limited to institutional questions, including the quality of follow-up, monitoring and review? What does it mean to ascribe the GCM a “governance capacity”? Does “governance”, as a counter concept to government, feature at the same time as an antidote to anarchy, so that the GCM could be fashioned as the complement to the “missing regime” of IML?

To resolve the ambiguity over the GCM’s governance ambition means for one to reply to the question posed by Aleinikoff in 2007, i.e. to what extent the GCM provides for the long-sought after “architecture” to govern the “substance” of IML. To respond to the challenge secondly means to uncover to what extent the GCM has overcome the “anarchy” underlying the fragmented state of IML, also called the “piecemeal approach” (Opeskin et al. 2012). This approach allowed States in the Global North to keep national sovereignty over territory and borders untouched by design, but also for few exceptions of multilateral cooperation on service providers in the General Agreement on Trade in Services (GATS) and regional schemes on free movement of persons. However, the “management” of population flows from sending countries has led to uncertain outcomes for the protection of migrants’ rights, while rendering their entitlements an often-neglected legal category in international law.

In this post, we will provide a first appraisal of whether the GCM has governance potential – a capacity which may move it beyond the mere “international cooperation framework”, designed by GCM drafters. Read the rest of this entry…

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“We are tidying up”: The Global Compact on Migration and its Interaction with International Human Rights Law

Published on March 1, 2019        Author: 
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Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

“We are not talking about anything new […] Rather we are tidying up” – said El Salvador’s Representative before the vote at the United Nations General Assembly (UNGA) on the adoption of the Global Compact on Migration (GCM), also known as the Marrakech Compact (GA/12113). Other similar declarations joined the chorus of States in three clear directions: 1) the Compact is not legally binding; 2) the Compact does not create any new international obligations in the form of new customary rules; and 3) the Compact reaffirms States’ sovereignty.

Be that as it may, one cannot but agree with Maria Gavouneli that the GCM, at this stage, will not have a huge impact on the existing legal framework applicable to the mass movements of individuals. However, it is possible to move the critique one step forward looking at some contents of the GCM that might have some normative effects on the sources of international law governing the management of migration.

The GCM and its Legal Nature

As Anne Peters put it on this blog, the GCM is part of the borderless category of international soft law instruments, as States’ will clearly excludes the legal bindingness of its objectives and actions. However, it is no mystery that soft law instruments might have, under certain conditions, normative effects. Read the rest of this entry…

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

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

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

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

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

Read the rest of this entry…

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

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

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

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

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

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

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

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