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Home Archive for category "International Organisations" (Page 5)

Security Council Resolutions as Evidence of Customary International Law

Published on March 1, 2018        Author: 
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In 2012 the International Law Commission began to address one of the last major uncodified areas of public international law: how norms of customary law (CIL) are to be identified.  The exercise at the ILC has not been an easy one.  States commenting in 2016 on the Commission’s “draft conclusions” expressed concerns on a variety of issues.  One of the most contentious was the role of international organizations (IOs) in the creation of custom. 

The topic has been the subject of academic conferences at the University of Manchester, the University of Michigan and elsewhere, as well as a growing volume of law review commentary (see here, here, here, here and here).  And in early January, the United States submitted comments on the draft conclusions that were, to put it mildly, opposed to any role for IOs.  Closer to home, Kristen Boon, Isaac Jenkins and I have just published an article on the role of the Security Council in generating evidence of custom related to non-international armed conflicts (NIACs), an area of intense Council involvement. In this post I’ll describe the ILC’s view of IOs, the United States’ response, and then our affirmative arguments specific to the Security Council. Read the rest of this entry…

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Reinventing Multilateral Cybersecurity Negotiation after the Failure of the UN GGE and Wannacry: The OECD Solution

Published on February 28, 2018        Author:  and
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While the failure of cyber security negotiations under the auspices of the UN GGE has created a huge void in international regulation, recent cyber-attacks with global reach have shown that action is more urgent than ever. Reflection on standards, good practices and norms should include private sector actors who are often the first victims of cyber-attacks. We consider that the solution to the current vacuum in multilateral cybersecurity negotiations is the creation of a flexible and inclusive body within the OECD that would act as a hub for the various initiatives while promoting close cooperation between States, the private sector and civil society in order to promote standards of responsible conduct in cyberspace.

In recent years, States have tackled the problem of cyber security by multiplying initiatives in various intergovernmental organizations, be they universal organizations (such as the United Nations or the ITU) or regional or restricted organizations such as the European Union (with, for example, the recent cybersecurity package announced by the EU Commission in September), the Council of Europe, the OSCE, the OECD, the African Union, the Shanghai Cooperation Organization, NATO, ASEAN, the G7 or the G20. These initiatives are also developed in ad hoc frameworks specifically dedicated to cyber-security, where an impressive number of conferences are initiated by States, such as the Global Conference on Cyberspace (GCCS) which has launched the Global Forum on Cyber ​​Expertise (GFCE) – and this without counting academic initiatives such as the process that led to the adoption of the Tallinn Manuals 1 and 2 or the creation of Think Tanks like the Global Commission on the Stability of Cyberspace chaired by Marina Kaljurand (formerly Estonian Foreign Minister).

The failure of the UN GGE Read the rest of this entry…

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Copenhagen: Keeping on Keeping on. A Reply to Mikael Rask Madsen and Jonas Christoffersen on the Draft Copenhagen Declaration

Published on February 24, 2018        Author:  and
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The debate about the future of the European human rights system is absolutely vital, and with that in mind we venture here to reply to just some of the points made by Mikael Rask Madsen and Jonas Christoffersen in their post about the draft Copenhagen declaration.

Commenting on the position paper recently published by the European Court of Human Rights itself, Madsen and Christoffersen detect a ‘strikingly different tenor’ compared with our comments and those of other academics. However, the Court’s reticent tone is only what one would expect from an international judicial institution, in commenting on draft proposals by a member state of an inter-governmental institution such as the Council of Europe. We would observe that the Court’s apparent cautiousness should not be mistaken for consent to the proposals in the declaration. Indeed, we understand that the draft declaration has caused no little concern within the Council of Europe. We also understand that a number of states have already expressed their serious reservations about the way in which the draft declaration downplays the Court’s oversight, queries its independent judicial role, pronounces on how the Court should interpret and apply the Convention, and questions the principle of the universality of human rights. Closer to home, the Danish Helsinki Committee for Human Rights has called for its ‘complete revision’.

Subsidiarity

It is suggested by Madsen and Christoffersen that the declaration is simply codifying recent developments relating to subsidiarity, and they identify ‘an increased demand’ for subsidiarity since the Brighton Declaration. However, in its paper the Court underlines that the concept of subsidiarity is nothing new, and that it is context-dependent – a matter for the Court to assess in each case. Read the rest of this entry…

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The Philippines Human Rights Commission and the ‘Carbon Majors’ Petition

Published on December 22, 2017        Author: , and
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The adoption of the Paris Agreement in 2015 has been followed by a burgeoning strand of climate change litigation, with test cases being heard all over the world (see Columbia Law School database). Amongst others, litigants have argued that emissions are the proximate cause of adverse climate change impacts, thereby giving rise to specific liability. One of the boldest efforts to test the boundaries of the law in this area is a petition currently being heard by the Commission on Human Rights of the Philippines (CHR or Commission). The petition originated in 2016, when after a surge of typhoons wreaking havoc in the Philippines, Greenpeace Southeast Asia, Pilipino human rights groups and citizens requested the Commission to investigate the responsibility of 47 oil, gas, coal, and cement companies for human rights violations or threats thereof resulting from the impacts of climate change (so-called Carbon Majors petition). The petition has attracted much attention in the media and numerous academics and civil society organisations have submitted amicus briefs in support of the petitioners. Last week, the Commission groundbreakingly asserted its jurisdiction to investigate the petition (CHR press release). The Commission also announced multiple fact-finding missions and public hearings in 2018, to be held both within and without the Philippines. This post reflects on the international law implications of the petition for arguments concerning the liability of corporations for alleged human rights violations associated with the impacts of climate change in a transnational context.

The Scope of the Commission’s Jurisdiction

Similar to other national human rights institutions, the CHR has a mandate to investigate:

all forms of human rights violations involving civil and political rights and to investigate and monitor all economic, social and cultural rights violations and abuses, as well as threats of violations thereof, especially with respect to the conditions of those who are marginalized, disadvantaged, and vulnerable (Rule 2, Omnibus Rules of Procedure). 


Some respondents challenged the Commission’s jurisdiction to hear the petition. Citing the Lotus case, they argued that a State’s jurisdiction is limited ‘only to the confines of its physical boundaries’ (e.g. Cemex, at 11). As we explained in our amicus brief, States frequently exercise adjudicatory and legislative jurisdiction over persons or events outside their territory, as long as there is a clear connecting nexus between that State and the person or conduct that it seeks to regulate. Therefore, and contrary to what was suggested by the respondents, the exercise of the Commission’s jurisdiction over foreign corporations is neither an ‘act of interference’ or ‘usurpation’ of other States’ sovereignty (Cemex, at 16), nor ‘tantamount to an undue encroachment on the territorial jurisdiction and sovereignty of such other States where Respondents are domiciled and operate’ (Shell, at 1). As long as the Commission’s investigation falls within one of the established principles of jurisdiction, it is in accordance with international law. The most relevant principles for the purposes of the petition are the territorial and the protective principles. Read the rest of this entry…

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Resignation of Mugabe: A Military Coup or a Legitimate Expression of the People’s Will?

Published on December 5, 2017        Author: 
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On 15 November 2017, following a rule of 37 years since the independence of Zimbabwe, President Mugabe was placed under house arrest by the army. A military spokesman appeared on state television to declare that the president was safe and that they were only “targeting criminals around him who are committing crimes that are causing social and economic suffering”. He further noted that this was not a military coup. Mugabe resisted stepping down for a week but then finally resigned on 21 November when the Parliament initiated impeachment proceedings. Mnangagwa, the former Vice-President, who was fired by Mugabe only a week before the military intervention, was sworn in as president on 24 November, and the military granted Mugabe immunity from prosecution.

As will be discussed below, the African Union (AU) has adopted an uncompromising approach towards military coups. However, in the very recent case of Zimbabwe it preferred a more cautious stance, which stands in contrast with its previous practice. The Zimbabwe episode demonstrates two important things. Firstly, the event proves that the practice of the AU is highly effective in that even if an army wants to overthrow a ruler, it now needs to find the most appropriate way to avoid the application of the AU’s sanction mechanism. Second, the AU did not adopt the same approach it had followed in many other cases, because the target of the military takeover was a long-established president notorious for his authoritarian rule. Read the rest of this entry…

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The Immunity of al-Bashir: The Latest Turn in the Jurisprudence of the ICC

Published on November 15, 2017        Author: 
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On 6 July 2017, the Pre-Trial Chamber of the ICC issued a new decision in the case of Omar al-Bashir. The Chamber ruled that South Africa failed to comply with its obligation to arrest the President of Sudan by welcoming him for a summit of the African Union two years earlier. This decision did not come as a surprise because the Court had repeatedly ruled before that al-Bashir does not enjoy immunity from arrest and that all states parties have an obligation to arrest him. What makes the decision curious, however, is that the Chamber again adopted a new position on the immunity of al-Bashir:

  • In 2011, the Chamber found that al-Bashir does not enjoy immunity because of an exception under customary international law for the prosecution of international crimes by an international court like the ICC. According to the Chad and Malawi decisions, no sitting Head of State could ever claim immunity before the ICC (for reactions see: here and here).
  • In 2014, the Chamber revised its position and concluded that the Security Council implicitly waived his immunity in Resolution 1593. Al-Bashir would not enjoy immunity because the Council issued a binding decision under Chapter VII of the UN Charter obliging Sudan ‘to cooperate fully with … the Court’ (for reactions to the DRC decision see: here and here).
  • In it most recent decision of 6 July 2017, the Chamber found that al-Bashir does not enjoy immunity because the Security Council’s referral placed Sudan in a similar position as a state party. Al-Bashir would not possess immunity from arrest because of Article 27(2) of the Statute which provides that immunities ‘… shall not bar the Court from exercising its jurisdiction’.

In this post I examine the Chamber’s most recent decision on the case of al-Bashir and make a number of critical observations. Read the rest of this entry…

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A Danish Crusade for the Reform of the European Court of Human Rights

Published on November 14, 2017        Author: 
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Tomorrow (15 November) Denmark will take over the rotating chairmanship of the Council of Europe (CoE). The CoE was established in 1949 and has since adopted numerous treaties, including the 1950 European Convention on Human Rights (ECHR). Denmark is a CoE founding member and has traditionally been a strong supporter of human rights. Yet the Danish Government has announced that the chief priority of its chairmanship will be the reform of the European human rights system. This announcement may come as a surprise to the readership of this blog. This post therefore summarises the vicissitudes that have led to the Danish Government’s initiative, and provides some early reflections on its expected impact.

Why does Denmark want a reform?

Immigration has long been a dominant theme in Danish politics. In the late 1990s, the Danish People’s Party (DPP) began to denounce immigration, multiculturalism and Islam as alien to Danish society and values. Since 2001, the DPP has supported various minority coalition governments and gained extensive influence on Denmark’s immigration policy, which is now one of the most restrictive in Europe.

Critique of the ECHR is not new in Denmark, where much debate has focused on the influence of the Convention on the deportation of the foreign criminals. Read the rest of this entry…

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ICJ Elections 2017: UN General Assembly and Security Council Elect Four Judges to the ICJ But fail to Agree on a Fifth, yet again! + Trivia Question

Published on November 11, 2017        Author: 
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On Thursday (Nov. 9), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see UN Press Releases here and here). Judges Ronny Abraham (France), the incumbent President; Abdulqawi Yusuf (Somalia), the incumbent Vice-President; and Antônio Augusto Cançado Trindade (Brazil) were all re-elected. Nawaf Salam who is currently the Permanent Representative of Lebanon to the United Nations was also elected to the Court for the first time. They were elected in accordance with Articles 4 and 8 of the Statute of the ICJ which stipulate that judges are to be elected by the General Assembly and the Security Council meeting separately but concurrently. For a candidate to be elected each judge has to obtain an absolute majority in each of those organs, meaning that they need 8 votes in favour in the Security Council and, in 2017, 97 votes in the General Assembly. There are regular elections to the ICJ every three years, with five vacancies each time around. In the election held on Thursday, the General Assembly (GA) and the Security Council (SC) have, thus far, been unable to agree on the fifth judge to be elected to the Court, and voting has been suspended until Monday November 13. This scenario of the GA and SC being unable to agree in a single “meeting” (a term which has a special meaning for this purpose) on the list of Judges that are elected to the Court is relatively rare in the history of elections to the ICJ. However, that scenario has now occurred for a third successive time (after the events in 2011 and 2014 which I describe in the previous posts here and here).

This 2017 election has been particularly remarkable for a number of reasons. There were only six candidates for the five positions. However, and this is rare, all five judges whose terms were expiring had been nominated for re-election. What is perhaps most remarkable about this election, at least thus far, is that Judge Christopher Greenwood, the judge of British nationality, was not re-elected in the first “meeting”. The two remaining candidates for re-election, who must now fight it out on Monday are Judge Greenwood and Judge Bhandari (India), both sitting judges on the Court. Were Judge Greenwood not to be re-elected on Monday this would be a very significant break from the past with regard to the composition of the ICJ. Read the rest of this entry…

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Those Who Live in Glass Houses….

Published on November 8, 2017        Author: 
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The European Commission launched an infringement procedure against Poland over measures affecting the judiciary a day after the publication in the Polish Official Journal of the Law on the Ordinary Courts Organization on 28 July 2017. Though the infringement procedure is formally distinct from the ongoing ‘Rule of Law Dialogue’ and the recommendations issued just a few days before commencement of such procedure, it comes under the latter’s penumbra; both form part and parcel of the Commission Press Release (IP-17-2205). If the concern was ‘The Rule of Law,’ at least in some respects there is more bang than buck. The President of Poland blocked the most controversial parts of the new judicial regime in Poland, so that the infringement procedure was left with just two violations.    

The first concerns a different retirement age for male and female judges. It is not clear if this distinction in the Polish law is by design or inertia but the infringement seems clear: what is sauce for Sabena (RIP) cabin attendant geese should be sauce for judicial ganders. But important as any form of gender discrimination is, this item in the Polish legislation does not directly concern the more troublesome aspects of political control over the judiciary and its independence. Should Poland not correct this anomaly, it should be an easy case for the Court.

The second item in the infringement procedure is far more serious. In the Letter of Formal Notice (the first stage in infringement procedures) the Commission raises concerns ‘…that by giving the Minister of Justice the discretionary power to prolong the mandate of judges who have reached retirement age, as well as dismiss and appoint Court Presidents, the independence of the Polish Courts will be undermined’ (id.), allegedly contravening a combination of Article 19(1) of the TEU and Article 47 of the EU Charter of Fundamental Rights – a legal basis which is creative but not specious.

If indeed the prolongation of the mandate of a judge reaching retirement age rests in the hands of a Minister, the government of which he or she is part and acts and/or legislation issuing from which might be subject to judicial scrutiny by said judge, it may well consciously or otherwise impact, for example, his or her conduct prior to retirement or, no less importantly, give the appearance of lack of independence. I think this is indeed a serious matter impinging on the independence and appearance of independence of the judiciary. It is one thing to have scrutiny and approval of judges by democratic bodies at the moment of appointment. But once appointed, the independence of the judge from political actors must be as absolute as possible, and this dependency described in the letter of intent clearly compromises such.

But there is an irony in this complaint; some might even think a ticking time bomb. At least on two occasions proposals were put to various Intergovernmental Conferences to amend the Treaties so that the appointment of Judges to the Court of Justice of the European Union should be for a fixed period of time – say nine years – as is undoubtedly the Best Practice in Europe among higher courts where appointments are not until the age of retirement. Ominously in my view, the proposals were rejected. So that now we live under a regime where the prolongation of Members of the Court(s) (Judges and Advocates General) rests in the hands of national politicians whose decisions and legislation may come before such judges. Read the rest of this entry…

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Repressing Migrant Smuggling by the UN Security Council and EU Naval Military Operation Sophia: Some Reflections on Jurisdiction and Human Rights

Published on November 3, 2017        Author: 
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On 5 October 2017, the UN Security Council through S/RES/2380 (2017) renewed for the second time the enforcement powers that S/RES/2240 (2015) granted to states in order to fight migrant smuggling and human trafficking off the coast of Libya.

In a previous blog post that I wrote here in October 2015, I concluded by wondering what the effects will be of S/RES/2240 (2015) and by questioning, from several standpoints, the use of military action against migrant smugglers and human traffickers and in the overall management of the migrant crisis.

These UN Security Council resolutions provide the legal basis for the EU naval operation mandated with the task of disrupting the business model of migrant smugglers and human traffickers in the Southern Central Mediterranean: EU NAVFOR MED Operation Sophia. Established in 2015 by Council Decision (CFSP) 2015/778, its mandate has been renewed until 31 December 2018.

Criticisms of Operation Sophia are widespread and concerns over its failure to meet its objectives and its human rights implications are no secret (see among others Meijers Committee and Not so Humanitarian after All). On the occasion of the second renewal of the S/RES/2240 (2015), it’s time to take a closer look at Operation Sophia’s results, at the legal shortcomings of the web of legal instruments regulating its actions, and the various consequences these have had. Read the rest of this entry…

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