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Home Archive for category "International Organisations" (Page 4)

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

Published on February 28, 2019        Author: 

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.” 

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

Published on February 28, 2019        Author: 

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

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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ICJ Delivers Chagos Advisory Opinion, UK Loses Badly

Published on February 25, 2019        Author: 

Earlier this afternoon the ICJ delivered its Chagos advisory opinion. Briefly, the Court found that the separation of the Chagos archipelago from the British colony of Mauritius was contrary to the right to self-determination and that accordingly the decolonization of Mauritius was not completed in conformity with international law. As a consequence, the Court found that the UK’s continuing administration of the archipelago, which includes the largest US naval base in the Indian Ocean, Diego Garcia, is a continuing internationally wrongful act, which the UK was under an obligation to cease as soon as possible. The Court was almost unanimous – its decision not to exercise discretion and decline giving an opinion was made by 12 votes to 1, while its findings on the merits were made by 13 votes to 1 (Judge Donoghue dissenting). The AO and the various separate opinions is available here.

Here are some key takeaways.

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On Reforming the World and Reforming Character

Published on January 10, 2019        Author: 

Guy Fiti Sinclair’s To Reform the World was, for me, one of the books of the year when it came out in 2017. It is a model of legal scholarship, and does two things very well that are oh so difficult to bring together. First, Sinclair is an excellent lawyer – he knows the law, he knows what to focus on and what to ignore, and what is more, he is interested in the law, both its doctrinal detail and its political role; sadly, this interest in the law is not always present with people interested in the politics of law. Second, and related, he brings out this political role with verve and cogency. The work is scholarship of the highest order, a credit to its author and to those who trained him. I find, in all honesty, little to comment sensibly on; this is one of those books (few as they are) which I wish I had written myself. One can of course always ask questions: why focus on the World Bank and not, say, UNHCR? Why not include the work of an organization that proclaims to exist outside and beyond the law, like the OSCE? Could the same type analysis be applied to an interest organization like, say, the International Olive Council? Those questions can always be asked – the world of international organizations counts at least 300 varieties, and we tend to look at some of them a lot more than at others. It is almost a disgrace, for instance, that not more is known about a hugely important global governance institution such as the International Organization for Migration, responsible for establishing border management practices across the world and even for running migrant processing centers on behalf of member states, but steadfastly ignored in the legal literature.

But it would be churlish to go down this path. Instead, I want to address an element that usually stays a little under the radar and to which I cannot attach a proper label. It has something to do though with the political role of legal academics. Sinclair, without advertising it and (blissfully) without posturing, adheres broadly to the critical school. He may not be a card-carrying crit, but his work is sensitive to and inspired by critical givens (the indeterminacy thesis, the oscillation of law between apology and utopia, the notion that law typically serves as a vehicle for someone’s political project, that sort of thing). There is a Foucauldian flavor to the work and Sinclair clearly has taken the critical revolution to heart. And the book is all the better for it; indeed, it would have been impossible to write To Reform the World without something of a critical mindset.

The obvious follow-up question then is, however, what next? If the law cannot be trusted to do what we have always been taught to expect from it, if it carries institutional biases and tends to favour some at the expense of others, then what are international lawyers to do? Some have been happy to just continue to point to biases and the role of the ideology of international law – the equivalent of Voltaire’s retreat into his garden. Others have pointed to the emancipatory potential latent in international law; and yet others have put forward the idea that international lawyers or decision-makers more generally have a role to play in ensuring that the negative effects of international law are mitigated, aiming to complement the sterile structures of the law with calls on individuals to operate with a minimum of common decency. Read the rest of this entry…

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To Reform the World: International Organizations and the Making of Modern States – An Introduction

Published on January 9, 2019        Author: 

How have international organizations been able to expand their governance powers so significantly over the past century? What has been the role of international law in making this extraordinary expansion of powers seem possible and legitimate? And what does this tell us about international law itself?

My book, To Reform the World: International Organizations and the Making of Modern States (Oxford University Press, 2017), explores these questions by examining the expansion of legal powers exercised by international organizations through informal processes of discourse, practice, and (re)interpretation (‘IO expansion’ for short), rather than by the formal amendment of an organization’s constituent instrument. The book argues that IO expansion has been imagined, understood, and carried out as necessary to a process of making and remaking modern states, based on a broadly Western model. It also argues that international law plays a central, protean role in that process. It would be overly simplistic, therefore, to contend that IO expansion has resulted only in a loss of sovereignty by states. To the contrary, my argument is that IO expansion is intimately bound up with the creation of states, the construction of state powers, and the very constitution of modern statehood.

The book develops these arguments through detailed accounts of three episodes of IO expansion. The first involves the beginnings of technical assistance in the International Labour Organization (ILO) in the interwar period. The second concerns the emergence of United Nations (UN) peacekeeping in the two decades following World War II. And the third encompasses the World Bank’s ‘turn to governance’, which reached a high point in the 1990s. By examining three very different international organizations, spanning different periods in the 20th century, the book is able to identify broad themes in how international law has evolved and works in the world.

The research that led to the book began from the commonplace observation that international organizations have become some of the most significant actors in global governance. Today, hundreds of these entities, both regional and global in scope, intervene in myriad areas of activity, including international peace and security, social and economic development, trade and finance, and environmental protection. The powers exercised by international organizations now impact directly and indirectly on the lives of millions of people around the world. Some of these activities involve relatively mundane (though far-reaching) matters of international standard-setting and coordination, while others are more spectacular, including military, financial, and other forms of intervention. Read the rest of this entry…

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Announcement: Book Discussion on Guy Fiti Sinclair’s “To Reform the World”

Published on January 9, 2019        Author: 

The blog is happy to announce that over the next week, we will host a discussion of Guy Fiti Sinclair’s book, To Reform the World: International Organizations and the Making of Modern States. Guy Fiti Sinclair  is a Senior Lecturer at Victoria University of Wellington Law School. His principal area of research and teaching is public international law, with a focus on international organisations law, the history and theory of international law, and international economic law. 

Guy will open the discussion this morning with an introduction to the text. This will be followed by posts from Jan Klabbers,  Megan Donaldson, Devika Hovell and Edouard Fromageau. Guy will close the symposium with a reply to the discussants.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in – comments will of course be open on all posts.

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The Decentralisation of International Crimes: A shift from the central criminal apparatus at the ICC?

Published on December 27, 2018        Author: 

In her statement to the UN Security Council on November 2018, Fatou Bensouda vowed to search ‘outside of Libya’ for accountability of global actors in the migration context. This is one of the many moves by the Office of the Prosecutor (OTP) in their prosecutorial trajectory towards a more holistic approach. Such an approach widens the accountability net to capture crimes and potentially responsible actors, which would otherwise fall outside the geographical scope of the ICC’s “situations”.

In this post, I argue that this new approach, which has largely passed under the radar, is both desirable and justified. In what follows, I make three propositions. First, the ICC has by far adopted, in practice, a localised approach stressing system criminality. Second, in light of the globalisation of international crimes, this orthodox approach may be obsolete by failing to reflect and assert accountability comprehensively. The proliferation of cross-border transactions and the enhanced risk of transnational harms would require no less than modernising current prosecutorial strategies to properly respond to the changing faces of international crimes. The last proposition suggests that this new approach is justified and imminent out of practicality to fulfil the Court’s mandate.

The Orthodox Approach

Since the first case in Lubanga, it has been the customary practice of the ICC to localise liabilities. This means the Court would ordinarily zoom in on a particular (non-)State structural apparatus of power, and build a case theory upon it. The natural task of the Prosecution would be to identify and re-construct in abstracto the hierarchical structure that sustained the commission of crimes, and to translate it into respective responsibilities of criminal participants in concreto. Terms such as ‘organised apparatus’ and ‘hierarchical criminal network’ are common languages replete in the work of the Prosecution and Chambers. Read the rest of this entry…

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The Global Compact for Migration: to sign or not to sign?

Published on November 21, 2018        Author: 

The Global Compact for Safe, Orderly and Regular Migration (final draft of 13 July 2018) is scheduled for adoption at an intergovernmental conference in Marrakesh in December 2018. But in the run-up to this conference, several states, beginning with the United States already in 2017, now followed by Austria, Hungary, the Czech Republic, and others, have announced that they will  not sign the text. Will refusal to sign be relevant in terms of international law? What is the juridical quality of the Compact, which legal consequences does it have, and which normative “ripples” might it deploy in the future? The controversy over the Compact sheds light on the legitimacy of international law-making processes and on the precarious normative power of international law.

A Brief Glance at the Contents

The Compact consists of four parts. Following the preamble, the first part contains, “Vision and Guiding Principles”. The second part, “Objectives and Commitments” contains 23 objectives, proceeded by a part on “Implementation” and the final section “Follow-up and Review”. The Compact purports to set out “a common understanding, shared responsibilities and unity of purpose regarding migration” (para. 9). The purpose is mainly to secure that migration “works for all” (para. 13).

The Compact’s “guiding principles” are, inter alia, people-centeredness, international cooperation, national sovereignty, rule of law and due process, and sustainable development (para. 15). These are well-established and to a large extent also legally entrenched principles. The 23 “objectives” are partly generally recognised such as saving lives (objective 8), respond to smuggling (objective 9), or eradicate trafficking (objective 10). Some mainly correspond to interests of states of origin (such as promoting transfer of remittances, objective 20), others basically satisfy interests of receiving states (such as facilitating return and readmission (objective 21). In substance, the Compact partly repeats international law as it stands or refers to existing instruments (see notably preamble para. 2), partly contains platitudes, and partly contains novel ideas. Read the rest of this entry…

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Lost in Space? Gaps in the International Space Object Registration Regime

Published on November 19, 2018        Author: 

Despite having been operational for over 15 years, the satellites NSS-6 and NSS-7 are missing from the United Nations Register of Objects Launched into Outer Space (‘International Register’). Just as we do not accept unregistered cars on our roads, we should not accept unregistered space objects in orbit. Registration ensures that the state responsible for a specific space object can be readily identified, and, if necessary, presented with a claim under the Convention on International Liability for Damage Caused by Space Objects.

For this reason, under the international space object registration regime, all space objects must be registered by a state. So which state is shirking their duty to submit NSS-6 and NSS-7 to the International Register?

The two satellites were built by Lockheed Martin Commercial Space Systems (‘Lockheed Martin’), a United States-based corporation, for New Skies International NV (‘New Skies’), a Dutch corporation. Launch services were provided by Arianespace SA (‘Arianespace’), a French corporation. Both launches took place from French territory. Once in orbit, ownership of the satellites was transferred from Lockheed Martin to New Skies. So at least three states are involved – and the question is which of these states should register NSS-6 and NSS-7 (spoiler alert: I think it’s the Netherlands). This episode is used as a case study to illustrate the ambiguities and gaps that exist in the international space object registration regime. I conclude the post by making a proposal which seeks to find a way to close these gaps. Read the rest of this entry…

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