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Settling the India-Pakistan Impasse … At Last

Published on March 8, 2019        Author: 
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I am grateful for Christian Henderson’s careful, detailed post on the violent confrontation between India and Pakistan that began 26 February. By 3 March direct attacks between the neighbors had tapered off, in part owing to Pakistan’s release of the Indian Air Force pilot it detained after his jet crashed in Pakistan. On the Indian side of the border a harsh crack down continued against separatists — both those seeking accession to Pakistan and those seeking independence.

My own legal assessment of the direct attacks aligns with Christian’s suggestion that they constituted unlawful armed reprisals, not acts of lawful self-defense. (I discussed the prohibition on reprisals here in reference to the U.S., France, and UK’s air strikes on Syria last April.) Christian’s quote from Pakistan’s Acting Foreign Secretary was particularly revealing: Pakistan’s air strikes “[s]ole purpose being to demonstrate our right, will and capability for self defence.”

More proof could be offered, but the space is better used to note some points of difference between Christian and me and to suggest a way forward toward peace after 70 years of violence. In my view, India was the first to use force in clear violation of UN Charter Article 2(4). This serious violation committed against Pakistan just a few months before Indian national elections, could be the opening of a negotiated settlement of the conflict at the heart of the crisis, the dispute over Kashmir. Read the rest of this entry…

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Filed under: Use of Force
 

Lack of Certification of the WTO Schedules of the United Kingdom: A Way for Frictionless Trade under a No-deal Brexit Scenario?

Published on March 7, 2019        Author: 
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The departure of the United Kingdom (“UK”) from the European Union (“EU”) without any agreement, the so-called no-deal Brexit, seems more likely to happen after the House of Commons voted against Theresa May’s Brexit deal by a record margin of 230 votes (432-202) on 15 January 2019. Under a no-deal scenario, World Trade Organization (“WTO”) rules will govern the UK’s trading relationship with both the EU and other countries. The UK’s trade in goods and services will be subject to most-favoured nation (“MFN”) tariff rates.

However, the UK, as a member State of the EU, does not have its own schedules of concessions under the WTO – for now – because the EU, as a single customs union, has consolidated schedules for goods and services. Accordingly, to conduct its post-Brexit trade, the UK submitted draft schedules on goods and services for certification in 2018. The UK is currently negotiating its schedules with other WTO Members, but time is running short ahead of the UK’s scheduled exit from the EU on 29 March 2019. If the UK fails to certify its schedules before March 2019 – a highly likely scenario – the question becomes whether the UK could unilaterally establish its new schedules and conduct trade based on “uncertified” schedules that have not been agreed by all WTO Members. Read the rest of this entry…

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Non-Precluded Measures Clause: Substance or Procedure? A comment on Certain Iranian Assets

Published on March 6, 2019        Author: 
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On 13 February 2019, the International Court of Justice (ICJ) issued its Judgment on the preliminary objections raised by the US to Iran’s claims in the Certain Iranian Assets case. The dispute involves the exercise of jurisdiction over Iran by US courts and the seizure of assets of Iranian state-owned companies to satisfy those court’s judgments. According to Iran, these actions are in breach of the US obligations under the 1955 Iran-US Treaty of Amity. The background to the case and the Court’s recent decision have been analysed elsewhere (see, eg, here). In this post, I want to comment on one specific element of the Court’s reasoning: its decision in relation to the US objection based on Article XX(1) of the Treaty of Amity.

Article XX(1) states, in relevant part, that:

The present treaty shall not preclude the application of measures …

(c) regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment; and

(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

The US argued that the function of this provision was to exclude certain matters from the substantive scope of the Treaty, with the consequence that they fell outside the Court’s jurisdiction which is limited, under Article XXI, to disputes relating to the interpretation and application of the Treaty. The Court rejected the US preliminary objection and decided, as it had done on previous occasions, that the provision in question constituted a ‘defence on the merits’ (para 47). This seems to be the right approach: Read the rest of this entry…

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Back to Square One or a New Blueprint has been Found for the ‘Refugee’ Definition?

Published on March 5, 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?

Our search for a new blueprint (or searching for a way to find a new blueprint) for the ‘refugee’ definition started already in 2016, at “The Migration Conference” in Vienna, through a comparison regarding the definition of refugee and more importantly its implementation in Brazil, Italy and Turkey. Afterwards, “The Movement of People Conference” in Hamburg in September 2016 opened the floor (at least) in academia to compare the definitions of refugee and its implementation in different parts of the world, which was not a new problem, but still had no solution at the time. Representatives from both sides of the Atlantic, i.e. the European Union (EU), USA, Latin America, United Kingdom, Germany, and Turkey came together to understand why all the implementations differ from each other, despite the fact that they are all States parties to the 1951 Geneva Convention and have derived their domestic definitions of refugee from it.

The results showed that this was due to the fact that there are different rationales behind the forced human mobility to various destination countries. For instance, while Latin America has dealt with hundreds of thousands of displaced people coming from Colombia and Northern Triangle of Central America among many other reasons also as climate refugees, EU Member States and Turkey still deal mostly with mass human mobility from Syria and the Middle East in general, because of the armed conflicts happening there. 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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Announcements: The Quest for ‘Lawful Seas’; CfP Military Law and Law of War Review; Ethiopia International Conference

Published on March 3, 2019        Author: 
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1. Beyond the Grotian Era: The Quest for ‘Lawful Seas’. This talk discusses whether we are moving from Mare Liberum to Mare Legitimum and whether the ‘Freedom of the Seas’ should be confined to history. The event will take place at Westminster Law School on 11 March 2019, starting at 5.30pm. The guest speaker is Prof. Steven Haines (University of Greenwich), and the event is chaired by Dr. Marco Longobardo (University of Westminster). For more information, please see here. Attendance can be booked here

2. Call for Papers: Military Law and Law of War Review/Revue de droit militaire et de droit de la guerre (Vol. 58). The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. The Review is published under the auspices of the International Society for Military Law and the Law of War. It features original and challenging articles, case notes, commentaries of the latest legal developments, as well as book reviews. As a distinct trait, it accepts contributions in six languages: English, French, German, Spanish, Italian and Dutch. For its coming issue, the Review’s editorial board welcomes submissions from scholars and practitioners that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)). The deadline for submission is 14 April 2019. Submissions should be sent by e-mail to brussels {at} ismllw(.)org. Articles should normally not be longer than 15.000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the abovementioned e-mail address.

3. School of Law, Wolaita Sodo University, Ethiopia International Conference. The School of Law, Wolaita Sodo University, Ethiopia is organising a 2 day international conference on 11 – 12 April 2019 entitled “Collective Security, Militarism or Humanitarianism: Decoding Interventionism in Africa”. The conference aims to decode contemporary practice of interventionism through critical reflection and new insights. The full call for papers is available here

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Filed under: Announcements and Events
 

“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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Tit-for-Tat-for-Tit: The Indian and Pakistani Airstrikes and the Jus ad Bellum

Published on February 28, 2019        Author: 
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Over the past few days there has been a flurry of confusing reports regarding military confrontations between India and Pakistan in the Kashmir region. It appears that in the early hours of 26 February Indian air force MiG-20s carried out air strikes in Pakistani territory in the small city of Balakot in response to a suicide bombing in Indian controlled Kashmir on 14 February which took the lives of over 40 Indian paramilitary soldiers and for which Pakistani based terror group Jaish-e-Mohammad (JeM) claimed responsibility. India claimed that it hit a JeM militant training camp during the strikes with a significant number of militant casualties, while Pakistan claimed that the Indian aircraft retreated after being confronted by the Pakistan Air Force, dropping four or five bombs in open field as they left across the border and which resulted in no causalities. While there have been several border skirmishes between the two states since they gained independence from Britain in 1947, this is the first time Indian military aircraft have carried out strikes across the ‘line of control’ since the war between them in 1971 which led to the creation of Bangladesh.

The following day Pakistan claimed to have carried out air strikes on ‘open ground’ within Indian territory, while India claimed that a military installation had been targeted. During an ensuing confrontation, Pakistan shot down an Indian Air Force MiG-21 jet which fell within Pakistani territory and led to the capture of the pilot. India has also claimed to have shot down a Pakistani fighter jet which had fallen on to the Pakistani side of the LoC. The US, EU, Russia and China have all called for restraint.

While clearly a dangerous development between two nuclear-armed states, with various accounts of underlying political motives for the clashes, and with shelling continuing across the LoC between them at the time of writing, it is, however, the legal justifications – or, rather, lack of – by both states for their strikes that will be the focus here.

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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