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Home International Organisations Archive for category "United Nations"

Non-UN Financial Sanctions against Central Banks and Heads of State: in breach of international immunity law?

Published on May 12, 2017        Author: 

Conventional Wisdom Challenged?

Recent years have seen a wide range of non-UN financial sanctions being adopted against States and their instrumentalities, including central banks, as well as against high-level State officials. Prominent examples include the EU and US sanctions against the central banks of Syria and Iran, and the asset freezes against the serving Presidents of Zimbabwe and Syria. In spite of the EU’s firm assertion that its ‘restrictive measures’ “are fully compliant with obligations under international law”, one might be inclined, intuitively, to regard such sanctions as a prima facie breach of international immunity rules (whether or not they qualify as (third-party?) countermeasures is a different story altogether – one which the present post will not touch upon). Thus, given the lack of a general exemption in respect of activities de jure imperii, Castellarin argues that the EU’s financial sanctions against central banks are contrary to State immunity law – a position which is also subscribed to by Thouvenin and Dupont. Others have arrived at the same conclusion in respect of asset freezes targeting Heads of State (see e.g. Pillitu). When discussing the matter with fellow scholars, it seems that the applicability of, and incompatibility with, immunity rules is often taken for granted.

Yet, is this conventional wisdom (if that is what it is) justified? It is quite remarkable to see how, on the one hand, the EU goes to some lengths to insert tailor-made exemptions to asset freezes in order to enable payments to or from diplomatic or consular posts (or exceptions to travel bans to allow officials to participate in international conferences) – even if the practice seems far from consistent –, while at the same time seeing no problems in the imposition of financial sanctions on Syria’s central bank and Head of State. Equally remarkable Read the rest of this entry…

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Methods to Incorporate Human Rights Law into Disaster Prevention and Reduction Strategies

Published on February 28, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

Earthquakes, floods, hurricanes, volcanic eruptions and landslides are all natural phenomena that have occurred throughout the history of humankind. This blog reflects on the ensuing crisis in human life, infrastructure, economic stability and ongoing development projects when such events occur. The limited capacity of a State to prepare, respond and rebuild afterwards is what will often turn these events into ‘disasters’ and crisis situations. Thus, disaster is the consequence of a combination of factors: disaster risk arises when hazards (such as earthquakes, floods, hurricanes, volcanic eruptions and landslides) interact with pre-existing physical, social, economic and environmental vulnerabilities. The ‘elements at risk’ may, therefore, refer to exposure of people, buildings, businesses, and infrastructure. This post shows how and why human rights law is an invaluable asset to States and organisations hoping to reduce the risk of disasters. Critically, it analyses methods available to incorporate human rights law into disaster prevention and reduction strategies.

International Disaster Risk Reduction (DRR) Frameworks

Over the past two decades, as the international disaster management agenda has been developed and refined, firstly in Yokohama (Yokohama Strategy and Plan of Action for a Safer World: guidelines for natural disaster prevention, preparedness and mitigation 1994) and then in Hyogo (Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters), the human rights agenda has also undergone a significant shift. Human rights principles are firmly entrenched in the international legal order through the proliferation of human rights courts and institutions. Read the rest of this entry…

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Post-Election Crisis in The Gambia, the Security Council and the Threat of the Use of Force

Published on February 17, 2017        Author: 

The Gambian post-election crisis is a gem amongst cases relevant to the law on ius ad bellum – not only because it is a crisis that has been resolved with almost no bloodshed, but also because it offers valuable insights into the interaction between Security Council authorization, the doctrine of intervention by invitation, and the prohibition on the threat to use of force (see for some analysis here, here, here, or here).

Professor Hallo de Wolf has concluded that “the legality of the ECOWAS’ military intervention is dubious”. His analysis primarily focuses on the question of legality of the ECOWAS’ intervention after the inauguration of The Gambia’s new president, Adama Barrow. However, his conclusion may be challenged if one is to read Security Council resolution 2337 (2017) as a non-prohibitive non-authorization, which indirectly opens and strengthens the alternative avenue of the doctrine of intervention by invitation . Elsewhere, I have evaluated this interpretation against State practice and the Council’s resolutions in the Syrian and Yemeni incidents and concluded that the consent of the new president, Barrow, may suffice to justify the military intervention in The Gambia.

If one is ready to follow this line of thought, a question arises as to the effect of the consent; what conduct is justified by the invitation? The post-election crisis in The Gambia, for which the course of events may be recalled here or here, entails temporal complications in this respect. The crisis can be divided in three phases: (1) pre- inauguration (Jammeh’s clinging to power up until the inauguration, and end of the ECOWAS’ ultimatum, 19 January 2017); (2) the time between passage of the ultimatum and official inauguration; (3) post- inauguration. Read the rest of this entry…

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The United Nations’ Efforts to Restore a Reputation Tarnished by Cholera

Published on December 9, 2016        Author: 

Overwhelming evidence demonstrates that UN peacekeepers are the source of a 2010 cholera outbreak that has infected nearly 800,000 people and killed more than 9,000 people. After refusing to apologize or provide redress to the individual victims for six years, the United Nations appears to be changing course. On December 1, UN Secretary-General Ban Ki-moon spoke to the General Assembly about the United Nations’ “new approach” to cholera in Haiti.

Ban’s remarks are notable both for what he said—and for what he did not. Ban finally apologized to the Haitian people. He outlined the steps the United Nations planned to take to combat cholera in Haiti, and to provide benefits, possibly including monetary compensation, to the individuals and communities that were most directly affected. Ban also spoke about the United Nations’ reputation: he urged member states to “seize this opportunity to address a tragedy that […] has damaged our reputation and global mission.” Now for the omission: Ban did not say that that the United Nations had a legal obligation to take any of these steps, even though the lawfulness of the United Nations’ conduct in connection with the cholera crisis in Haiti has been forcefully challenged.

It is these latter two points that I want to address. A couple of years ago, EJIL published an article of mine entitled Reputation and the Responsibility of International Organizations, which argued that international organizations have a strong incentive to cultivate and preserve reputations for being law-abiding. It drew on the cholera crisis in Haiti as a case study. Developments since then confirm the importance of reputation in motivating international organizations—and also highlight a crucial shortcoming of relying on reputation to keep such organizations in line. Read the rest of this entry…

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SOGI Mandate Passes Third Committee Hurdle

On 21 November 2016, the Third Committee of the General Assembly (GA) voted to uphold the United Nations mandate of the Independent Expert on sexual orientation and gender identity (SOGI) in a very closely fought vote. The decision represents a major stepping stone for the promotion of LGBTI rights, and provides much-needed reassurance regarding the ability of the Human Rights Council (HRC) – and the broader UN machinery – to adequately combat international human rights challenges.

Two main points of contention emerged during discussions leading up to, and during the day of the vote: 1) whether there is a legal basis for the mandate (the substantive argument); and 2) whether the GA has the power to override decisions made by the HRC (the procedural argument). It was the latter argument that generated the most discussion, and will therefore be the main focus of this post.

This post will begin with an analysis of what exactly happened on the day of the vote, and will be followed by an exploration of the two main arguments. The post will end with a discussion on what this vote could mean both in the short-term and long-term.

The day’s proceedings

When formally introducing the resolution to the Third Committee, the African Group had announced an oral amendment to OP2, stating that consideration of resolution 32/2 should be suspended until the 72nd session of the GA, a detail missing from the initial draft which had left it open to the criticism that the mandate was being suspended indefinitely. As noted by the representative for Brazil an optimistic reading of this amendment would have been misleading: specifying that this item will be revisited in one year’s time does not alter the far-reaching negative impact of the move. Furthermore, there are no reasonable grounds to think that the position taken by the African Group would change by next autumn. Read the rest of this entry…

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Should Commitments to Implementation Factor into Elections to the Human Rights Council?

Published on November 8, 2016        Author: 

Following the recent celebration of the UN Human Rights Council’s tenth anniversary, one of the key questions for its next decade is how it can play a more effective role in promoting the implementation of human rights standards and norms and its own and other UN bodies’ recommendations. This shift is critical given the serious deficiencies in implementation, despite the former UN Secretary General Kofi Annan’s call almost 15 years ago for a focus on the ‘implementation of the commitments we have made’ in an ‘era of commitment and implementation’. The recent Universal Rights Group Glion III report points to ‘important signs that UN Member States are increasingly turning their attention to the question of implementation, and how best to support it’ including within the Council. Recently, the President of the Council remarked that the Universal Periodic Review process holds ‘great potential to lead the charge’ in this regard. Tomorrow, the Council’s UPR Working Group will hold a half day panel discussion on ‘national reporting processes and structures’ as a key means to achieving implementation.

On 28 October, the UN General Assembly held elections for 14 new vacancies in the Human Rights Council. In this post, I ask whether and how the election process could provide a further lever to the burgeoning implementation project within the Council. I use the example of the UK’s recent re-election to illustrate how a deeper connection between implementation and election to the Council could be made, particularly through pledges to establish national implementation and follow-up mechanisms.

Expectations of Council Members

In 2006, the General Assembly in Resolution 60/251 outlined the requirements for membership of the Council as: (1) ‘the contribution of candidates to the promotion and protection of human rights’ (2) the submission of ‘voluntary pledges and commitments made thereto’ (4) the ‘uphold[ing of] the highest standards in the promotion and protection of human rights’ (5) ‘full[] cooperat[ion] with the Council’ and (6) agreement to ‘be reviewed under the universal periodic review mechanism during their term of membership’. The Resolution also indicated that the commission of gross and systematic human rights violations could result in the suspension of membership. Read the rest of this entry…

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Withdrawal from the United Nations: Would it have been Lawful for the Philippines?

Published on September 19, 2016        Author: 

50 years ago today (on 19 September 1966), the Ambassador of Indonesia to the United States sent a telegram to the UN Secretary-General stating that “my Government has decided to resume full co-operation with the United Nations and to resume participation in its activities . . .” That marked the beginning of the end of the only case where a UN member has purported to withdraw from the organization. Last month, Rodrigo Duterte, President of Indonesia’s neighbour, the Philippines, threatened that the country would withdraw from the United Nations because of criticism by two UN Special Rapporteurs (see here). As has been widely reported, and as pointed out by Marko a couple of weeks ago, hundreds of (or on some accounts up to 3000) suspected drug dealers or users have been killed since the Duterte took over in Philippines.  On 18 August, the UN Special Rapporteurs on Summary Executions and on the Right to Health issued a statement “urging the Government of the Philippines to put an end to the current wave of extrajudicial executions and killings in the context of an intensified anti-crime and anti-drug campaign targeting drug dealers and users.” In response, Philippines President Duterte stated that “maybe we’ll just have to decide to separate from the United Nations” (see here and here). The Philippines Foreign Minister later stated that the country had no plans to leave the UN, and Duterte himself subsequently stated that his threat was just a joke.

However, the threat to withdraw does raise the question of whether UN members may legally withdraw from the Organization. Although the circumstances are very different, and there are clear treaty provisions to provide guidance, British withdrawal from the European Union also provides cause to ponder more generally about how and when states may withdraw from international organizations. Would the Philippines have been entitled to withdraw from the UN? Unlike the position with the European Union, and it’s now well-known Article 50 of the Treaty on European Union), the UN Charter does not make explicit provision for withdrawal. This post explores whether despite the absence of specific provision,  a UN member is legally entitled to withdraw from the organization. Read the rest of this entry…

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The New Arbitrariness and Competing Constitutionalisms: Remarks on ECtHR Grand Chamber Al-Dulimi

Published on June 30, 2016        Author: 

In a judgment published on 21 June 2016, the ECtHR Grand Chamber confirmed a violation of Art. 6(1) ECHR by Switzerland. The history of the case is summarized in my post on the chamber judgment of 26 November 2013. Al-Dulimi was considered by the relevant UN sanctions committee to be the former head of finance of the Iraqi secret service under Saddam Hussain (a fact which he apparently never denied), and he ran the firm Montana Management, registered under the laws of Panama. Al-Dulimi’s bank accounts in Switzerland had been frozen in 2004 by Switzerland pursuant to Resolution 1483 (2003). The main findings of the new Grand Chamber judgment are reported by Marko Milanovic in his post.

As Marko already pointed out, the reasoning of the Grand Chamber was carried only by a slim majority. The judgment followed the Chamber judgment in three points: First, it sought to harmonize the obligations of Member States under the UN Charter and under the ECHR, and thereby denied the conflict and evaded the question of legal consequences flowing from Art. 103 UN Charter. Second, the Grand Chamber found that although the Swiss authorities’ and courts’ refusal to review the complaint pursued the legitimate objective of maintaining international peace and security, the denial of any substantive review was disproportionate and therefore impaired “the very essence of the applicant’s right of access to a court“ (para. 151). Third, as the Chamber had done before, no just satisfaction was awarded to the applicant.

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Belgium’s Article 51 Letter to the Security Council [UPDATED]

Published on June 17, 2016        Author: 

On 7 June, the government of Belgium sent an Article 51 letter to the President of the Security Council, justifying its military action on the territory of Syria against ISIS by way of collective self-defense. The ODS link to the letter is here (S/2016/523), and here is the key paragraph articulating Belgium’s legal position:

ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not, at this time, exercise effective control. In the light of this exceptional situation, States that have been subjected to armed attack by ISIL originating in that part of the Syrian territory are therefore justified under Article 51 of the Charter to take necessary measures of self-defence. Exercising the right of collective self-defence, Belgium will support the military measures of those States that have been subjected to attacks by ISIL. Those measures are directed against the so-called “Islamic State in Iraq and the Levant” and not against the Syrian Arab Republic.

Interestingly, this paragraph is taken almost word-for-word from the letter Germany had sent to the Council on 10 December 2015, S/2015/946:

ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control. States that have been subjected to armed attack by ISIL originating in this part of Syrian territory, are therefore justified under Article 51 of the Charter of the United Nations to take necessary measures of self-defence, even without the consent of the Government of the Syrian Arab Republic. Exercising the right of collective self-defence, Germany will now support the military measures of those States that have been subjected to attacks by ISIL.

Note, however, some of the differences: Belgium calls this an exceptional situation, somewhat diplomatically removes the reference to the lack of any need for Syria’s consent, even though that’s implicit in its invocation of Article 51, and adds a sentence saying that measures taken in self-defence are directed at ISIS rather than against Syria (even if Belgian airplanes are flying in Syrian airspace and discharging weaponry on Syrian territory without its consent). Both Germany and Belgium endorse a position whereby action against a non-state actor operating from the territory of another state is permitted without that state’s consent if the state lost effective control over the relevant area – this is very close to, but not necessarily exactly the same thing, as the ‘unwilling and unable’ test.

UPDATE: Many thanks to everyone contributing in the comments. I’d say that perhaps the most valuable lesson to be learned from this discussion is how all of these states are strategically using ambiguity in their various letters to the Council. They know perfectly well that the formulations that they have chosen are open to several possible interpretations, and they were deliberately chosen precisely with that in mind – not simply as a matter of diplomacy, but in order to create legal cover for what they want to do today while keeping their options open for the future. Nothing less could be expected, of course, when we bear in mind that the Council’s ISIS resolution 2249 is itself a masterful example of such a use of ambiguity. But ambiguity of this kind is also obviously detrimental when it comes to solidifying a clear position with regard to self-defence against non-state actors on the basis of state (and UNSC) practice.

In that regard, a kind reader also let me know that Norway has also sent a letter to the Council, dated 3 June, S/2016/513. The three key paragraphs are quoted below the fold – note how simply wonderful Norway is in saying nothing, beyond simply stating that it is exercising the right to collective self-defence without directing its actions against Syria.

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Kosovo’s Membership in the PCA: Some comments on Professor Zimmermann’s post

Published on April 13, 2016        Author: 

It was nice to read Professor Zimmermann’s post on the issue of membership of Palestine and Kosovo in the Permanent Court of Arbitration (PCA), as this matter should get more attention from the community of international lawyers. I have already dealt with some of the relevant legal issues in an ESIL Reflection of 11 March 2016 which Professor Milanović has kindly referred to in a comment to Professor Zimmermann’s post. I would like to use this opportunity to engage with some issues raised by Professor Zimmermann, namely: whether the Netherlands should have raised proprio motu the issue of Kosovo’s accession to the 1907 Convention; whether there has been an ‘entente ulterieure’ among the member States of the PCA; what are the powers of the PCA Administrative Council and what is the value of its decision of 4 January 2016, and; what is the way forward concerning Kosovo’s accession to the 1907 Convention.

Calling a meeting of the PCA Administrative Council proprio motu

There was no need for the Netherlands as State depositary to raise proprio motu the matter of Kosovo’s accession to the 1907 Convention within the framework of the PCA Administrative Council. Any State who had an issue with Kosovo’s accession could have called for a meeting of the Administrative Council, even at short notice, like Serbia did, albeit not being a party to the 1907 Convention. Also, it must be noted that by the time of the 4 January 2016 meeting of the PCA Administrative Council, only three out of the 116 Member States of the PCA, namely Russia, Serbia and Mexico seemed to have raised an issue concerning Kosovo’s membership in the PCA. Finally, given that more than half of the member States of the PCA recognize Kosovo as an independent State, there was no need for the Netherlands to raise this issue proprio motu.

Entente ultérieure among PCA member States

Contrary to what Professor Zimmermann claims, there has been no ‘entente ultérieure’ along the lines of Article 60 of the 1899 Convention and Article 94 of the 1907 Convention. The December 1959 agreement among the PCA member States simply authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA or whose membership position was unclear. The aim was to increase the membership of the PCA. The document to which Professor Zimmermann refers to as ‘UN support’ is a Study prepared by the Secretariat in 1968 concerning the succession of States to multilateral treaties. Read the rest of this entry…

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