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Syria, Security Resolution 2118 (2013) and Peace versus Justice: Two Steps Forward, One Step Back?

Published on October 3, 2013        Author: 

Chemical weaponsOn 27 September 2013, the Security Council adopted Resolution 2118 (2013). The resolution broke the diplomatic impasse over Syria in the Security Council. It was celebrated as a diplomatic success and as a ‘precedent-setting’ resolution. It marks fundamental progress, on at least two fronts: (i) It shifted the debate on the use of force from claims of unilateral intervention to collective security action (which is in line with the spirit of the Responsibility to Protect idea under the World Summit Outcome Document); and (ii) it reinforced of the normative regime regarding the ban of the use of chemical weapons. (photo: mustard gas shells, credit)

As has been aptly noted,  the text of resolution has not been expressly adopted under Chapter VII. But this does not detract from its binding force (Article 25 of the UN Charter) and its legal significance. The most immediate consequence of Resolution 2118 (2013) is that averted the threat of unilateral military strikes. The text of the resolution makes it makes it clear that military action to enforce compliance with obligations under the Resolution needs to be channelled through the Security Council. The wording differs from Security Council Resolution 1441 (2002) which afforded Iraq ‘a final opportunity to comply with … disarmament obligations under relevant resolutions of the Council’ (para. 2), and recalled that ‘Iraq […] will face serious consequences as a result of its continued violations of its obligations’ (para. 13). Resolution 2118 (2013) maintains the prerogative of the Council to decide on future action. It states that the Security Council ‘decides’ on measures ‘in the event of non-compliance with’ the resolution (para. 22). This makes it hard to justify unilateral strikes, based on the interpretation of the Resolution, as argued in the context of Iraq, where Resolution 1441 was invoked in conjunction with Resolution 678 (1990) to justify the use of force. The wording of Resolution 2118 adopts a different approach. It suggests that the burden lies on the Council to reach agreement.  It leaves some choice as to the type of measure to be adopted (e.g., sanctions or other measures under Article 41, or coercive measures under Article 42). But the wording (‘The Security Council ‘[d]ecides […] to impose measures under Chapter VII’)  seems to reflect an implied pre-commitment to act which is visibly designed to prevent risks of future inaction by the Council.

Secondly, the resolution marks new ground since it proclaims a ‘new’ norm regarding the universal ban on the use of chemical weapons. It clarifies that ‘the use of chemical weapons anywhere constitutes a threat to international peace and security’ (para. 1).It thus embraces a new commitment by the Security Council to the prohibition of the use of chemical weapons ‘anywhere’, ‘anytime’ and ‘under any circumstances’. As argued by Marko Milanovic, this universal ban bears resemblance with the generic finding in the preamble of Resolution 1373 (2001) that ‘acts, like any act of international terrorism, constitute a threat to international peace and security’. It puts pressure on the Council to deal with such incidents in the future. It coincides with parallel developments in international criminal law, i.e. the extension of the war crime of employing poison, poisonous weapons or prohibited gases, liquids, materials or devices to non-international armed conflicts at Kampala, as discussed by Dapo Akande.

But like the preceding discourse on intervention, the resolution contains a fundamental contradiction. Read the rest of this entry…

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Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, Part II

Published on September 24, 2013        Author: 

The_Great_Wall_of_China_at_JinshanlingThis is the second part of a post on the Beijing Human Rights Forum held in September 2013 in anticipation of the upcoming Universal Periodic Review of China. Part I introduced the pending Review, described recent human-rights-related legal reform in China, and summarized governmental attitudes on human rights expressed at the Forum. (photo credit)

Voices against human rights universalism

The most vocal human rights relativist at the Forum was Lord Davidson of Glen Clova, House of Lords, UK, a former General Advocate for Scotland. He asked the question “Is it correct to regard human rights as universal?”, and answered it with a vigorous “no”, drawing on examples of prisoners’ voting rights, same-sex marriages, and the like.

Professor Li-Ann THIO from Singapore gave another powerful human rights-relativist talk. According to professor Thio, the goal should be human welfare, whether through human rights or other venues. The focus should be more on results, more on “doing good than on feeling good”. Professor Thio concluded with the question that she thought should be asked to everyone: Do you want the right to a house, or do you want a house?

The answer might seem obvious to rights-sceptics like THIO. But it merits two remarks: First of all, the realisation of most needs and wishes of personal life such as having a house, depends on complex economic, financial and political conditions. People wanting a house are completely dependent on those external conditions if they cannot at least have a say in shaping policies that influence them. Even with regard to the house itself, most people will prefer to decide for themselves whether they indeed want a house, or whether to spend their money first on the education of their children, or on world-wide travelling, for example. Some individuals who prefer non-settled living may indeed not even want a fixed house, and want to remain free to decide on their lifestyle.

Second and most importantly, people do not only want a house but they also want to be able to rely on their home and want to be sure that they cannot be simply evicted for the sake of some infrastructure project. This security is only given when they have a right to the house. In that sense, having a right to a house is an indispensable precondition of securely having a house.

The “putting the people first”-philosophy of the Chinese Government and the “Chinese dream”

The idea that a government should first of all provide a house (without necessarily granting a right to a house) is just one concretion of the Chinese Government’s philosophy of government for the people. In fact, a number of Chinese speakers highlighted the Chinese concept of “putting the people first”-philosophy. This appears to mean both that the group has a certain priority before the individual and also that the welfare of the people must be the objective of government, that “the state is for the people“, as HUANG Mengfu, Vice-Chairman of the National Committee of the 11th CPPCC, Chairman of the China Foundation for Human Rights Development, said. Besides, and somewhat in contrast, LI Junru, Vice-President of the China Society for Human Rights Studies said that “the dignity of the state is a precondition of dignity of individuals“.

The idea of a government for the people implies that a pure output-legitimacy of governance suffices. My objection would be that the outcomes are often controversial. Read the rest of this entry…

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Can the United States Deny Sudanese President Bashir a Visa to Attend the UN General Assembly or Arrest Him?

Published on September 18, 2013        Author: 

The Sudanese Government has applied to the United States for a visa that will enable Sudanese President Omar Al-Bashir to attend the United Nations General Assembly session which starts this week (see BBC report here). The International Criminal Court issued an arrest warrant for Bashir in 2009 and whenever he has travelled abroad since then questions have arisen as to whether the host state ought to arrest him or not. The United States is, of course, not a party to the ICC Statute and therefore does not have an obligation to arrest Bashir. With respect to the US two questions arise. First, may the US deny Bashir entry to the US given that Bashir is seeking to attend the UN General Assembly as a representative of Sudan? Second, if Bashir were to be granted a visa and permitted entry, may the US arrest him whilst there for the GA session? I foreshadowed these very issues in the final section of a an article I wrote on Bashir’s Immunities, in the 2009 volume of the Journal of International Criminal Justice. In that piece, I argued that the despite the immunity that Heads of State are ordinarily entitled to under international law, the referral of the Sudan situation to the ICC implicitly made Article 27 of the ICC Statute (which removes the  immunity of state officials) applicable to Sudan. I also argued that “Given that the Statute operates in this case not as a treaty but by virtue of a Security Council resolution it may apply even to non-parties. [Non-parties to the ICC Statute] have no obligations under the Statute to arrest  . . . [h]owever, they have the right to deny immunity as a result of the Security Council’s implicit decision to adopt Article 27” (p. 348). However, I went on to state that:

“Despite the arguments above, there is one set of immunities that may not be removed by the Security Council. These are the immunities of representatives to the United Nations” (p. 351).

After discussing the obligation of the US to confer visas to those travelling to to the US to attend meetings of the General Assembly, I concluded that:

 “ . . . if Al Bashir were bold enough he would not only have the right to represent his state at UN meetings, he would be immune from arrest were he to do so” (p. 352).

The US Obligation to Grant a Visa

The US, as host State to the United Nations has an obligation to permit representatives of member States (and other persons invited to the UN) entry to the US for the purpose of attending meetings of the principal and subsidiary organs of the United Nations. This obligation is derived from three sources which are of increasing specificity in regulating the visa issue. Read the rest of this entry…

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Mothers of Srebrenica: The Obligation to Prevent Genocide and Jus Cogens – Implications for Humanitarian Intervention

Published on September 6, 2013        Author: 

Manuel J. Ventura is a Director of The Peace and Justice Initiative and Dapo Akande is editor of EJIL:Talk!

The June 2013 decision of the European Court of Human Rights (ECtHR) in Stichting Mothers of Srebrenica and Others v. The Netherlands is the latest phase in the attempts by the relatives of those killed in Srebrenica, Bosnia and Herzegovina to hold the UN (and/or The Netherlands) responsible for the inaction of the UN Protection Force (UNPROFOR) – made up of Dutch peacekeepers – who stood aside while Srebrenica was overrun in July 1995. The subsequent events at the Srebrenica ‘safe area’ and the deaths of between 7,000-8,000 persons are by now well known. In the underlying proceedings in the Dutch Courts, the complainants did not seek to hold the UN responsible for the commission of genocide, but rather for the failure, in the applicant’s view, of the UN’s duty to prevent genocide. The Dutch courts held that the UN had immunity from domestic suit, even in the face of violations of jus cogens norms. The ECtHR agreed with the Dutch rulings on the immunity of the UN. It followed the ICJ’s holding in Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening) that ‘[i]nternational law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens’ [para. 158, ECtHR decision]. It also held that the recognition of immunity does not ipso facto constitute a violation of the right of access to a court [para. 164]. As a result, the ECtHR concluded that ‘the grant of immunity to the UN served a legitimate purpose and was not disproportionate.’ [para. 169]

However, the decisions of the Dutch courts and the ECtHR are unsatisfactory in one respect. They all ignore an important issue: the exact status of the obligation to prevent genocide in international law. These courts simply assumed that just as the obligation not to commit genocide is a rule of jus cogens, the obligation to prevent genocide is also a norm of jus cogens. The ECtHR simply stated (at para. 157) that: “The Court has recognised the prohibition of genocide as a rule of ius cogens  . . .” However to suggest that a jus cogens norm is involved simply because the prohibition of genocide is a jus cogens norm is a big legal leap that simply cannot be assumed. Otherwise we simply have jus cogens by association! To come to that conclusion, careful analysis was required as it is a proposition that is not at all clear from international law as it presently stands. Read the rest of this entry…

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Mr. Kadi and Article 103 (A Poem)

Published on July 29, 2013        Author: 

Professor James Crawford SC FBA is Whewell Professor of International Law at the University of Cambridge

While wandering through a wadi
in the wastes of Saudi
I came across Mr KadiKadi
cracking rather hardy.

I said ‘you must feel blue
at what they’ve done to you’;
he said to me ‘that’s true,
but I’ve got the CJEU,

lacking whose authority
the P5 sorority
are now a small minority,
who’ve lost their old priority.’

And so went Mr Kadi
wandering down his wadi:
‘it’s all because of me;
I killed Article 103!’

_________________

* Editors’ note: We are delighted to publish Professor Crawford’s poem, which he first presented last week during a lecture at The Hague Academy of International Law. Previous posts about Kadi here(Kadi pictured above, credit.)

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What is the Meaning of “Consensus” in International Decision Making?

Published on April 8, 2013        Author: 

On 28 March, the negotiators at the Final UN Diplomatic Conference on the Arms Trade Treaty failed to adopt the Arms Trade Treaty (see BBC report here) by consensus.  A few days later the Arms Trade Treaty was adopted by the United Nations General Assembly (by a vote of 154 in favour, three against and 23 abstentions – for a really useful account of the negotiations see the Arms Trade Treaty Legal Blog). At the Diplomatic Conference, the rules of procedure required that the treaty be adopted by “consensus”. However, at the end of that conference, Syria, Iran and North Korea objected to the text. According to the bloggers at the ATT Legal Blog there then ensued a discussion of whether the objection by these three States could stand in the way of the adoption of the treaty by consensus, with some States taking the view that acceptance of the text by the overwhelming majority of States was sufficient to establish consensus despite the expressed opposition of three States. However, the President of the Conference ruled that there was no consensus and that the treaty could not be adopted.

The wranglings about the meaning of “consensus” have a broad importance for decision-making with regard to treaties and in other international conferences. Since the 1970s it has become standard practice in many important diplomatic conferences that decisions are taken, where possible, by consensus. Although this procedural device is ubiquitous, as well as being important for the way in which international law is made, the arguments at the ATT conference lay bare the ambiguity that lies at the heart of this concept. There is no consensus on the meaning of “consensus”. The consensus procedure is an important device for achieving broad based agreement on international treaties. It is therefore important to have some clarity on what it means. Lack of clarity on the procedure might well have an adverse impact on the process by which treaties and other international decisions are reached with the result that the substantive outcomes might be less desirable.

The ATT Legal Blog reports that:

Mexico said that the overwhelming majority of States were in a position to adopt the treaty text. Mexico suggested to proceed to the adoption of the text as there is no established definition of the term “consensus” in the United Nations. Nigeria supported Mexico. Japan also supported Mexico. Costa Rica then supported Mexico’s statement. Chile then supported Mexico’s statement. Colombia “resolutely” supported Mexico. Read the rest of this entry…

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Isaiah’s Echo: Progress, Prophecy, and the UN Charter

Published on March 27, 2013        Author: 

John LouthJohn Louth is Editor-in-Chief of Academic Law at Oxford University Press

The phrase “swords into plowshares” has been adopted by countless organizations campaigning for peace and is also frequently associated with the UN’s mission and international law more broadly. The full quote comes from the book of the Prophet Isaiah:

“He shall judge between the nations, and shall arbitrate for many peoples; they shall beat their swords into plowshares and their spears into pruning hooks; nation shall not lift up sword against nation, neither shall they learn war any more.”

By a wonderful co-incidence this is chapter 2 verse 4 (2:4) of Isaiah and corresponds very closely to the prohibition on the use of force in Article 2(4) of the UN Charter (UNC):

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

With the similarity in the numbering (the original Dumbarton Oaks draft called this “Chapter” 2 giving an even closer resemblance) it is tempting to think that the connection between the UNC and Isaiah was there from the UN’s inception. Swords into Plowshares statueThere is also a statue in the UN garden named “Let Us Beat Our Swords into Plowshares”.  Wikipedia even finds it necessary to inform us that, contrary to popular belief, these words from Isaiah are not in fact inscribed on the UN building’s foundation stone. Those words are actually engraved on a wall across the road.

Read the rest of this entry…

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