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Bending the Knee or Extending the Hand to Industrial Nations? A Comment on the New Draft Treaty on Business and Human Rights

Published on August 23, 2019        Author:  and

On 16th of July, 2019, the Open-Ended Intergovernmental Working Group (OEIWG) on transnational corporations and other business enterprises with respect to human rights published a revised draft(RD) for a treaty on business and human rights. It is the second substantial draft of such treaty after the zero draft(ZD) released exactly one year earlier. The new draft contains some big concessions to States and businesses opposing the treaty.

The OEIWG was established in 2014 by the UN Human Rights Council (through resolution 26/9) to develop a legally binding instrument to regulate, “in international human rights law, the activities of transnational corporations and other business enterprises” (Art. 1 Res. 26/9). The OEIWG held its latest session in October 2018. The RD itself was prepared by the Chairman of the OEIWG over the last months. A first point of procedural criticism is thus that despite the inputs in the previous OEIWG’s sessions, there was no transparent process in the stage of drafting. The text was created by the chairman and his team alone. A drafting team consisting of legal experts representing different areas of expertise and different geographical regions would have given the draft more procedural legitimacy. The “power of the pen” should not be underestimated.

On substance, much could be said about the draft. We will focus on three particularly pertinent points: the new scope of the draft treaty; the comprehensive inclusion of human rights abuses in conflict areas; and the issue of corporate liability.

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Living in the Shadow of Flawed Peace: How General International Law Is Implicated in the Trade War between Japan and South Korea

Published on August 22, 2019        Author: 

As the anniversary of V-J Day approaches, the legacy of World War II still casts a long shadow on its previous Pacific theatre.  Last month, an unprecedented quadripartite incident involving warplanes from, inter alia, Japan and South Korea played out in the territorial airspace of the contested Dokdo/Takeshima islands, disputed territory that was left unresolved in the postwar San Francisco Peace Treaty of 1951 (SFPT).  Yet, the warning shots fired above those tiny rocks is not the only instance of regional tensions heating up in Northeast Asia.  On 2 August, Japan decided to remove South Korea from its list of trusted trade partners, following its restrictions on the exportation of three important chemicals to South Korea imposed last month.  Days later, Japan pulled back and permitted export of a key chemical for semiconductor manufacturing in Korea.  The two Asian economic titans have since brought their trade war to the attention of the WTO’s General Council

Yet the WTO is not the only international legal regime engaged in the escalating trade conflict between Japan and South Korea.  In this contribution, I aim to show that the now seldom-trodden postwar peace treaties concluding WWII are still pertinent to current international relations as evidenced by the diplomatic row between Seoul and Tokyo.  Self-help remains relevant to the effective operation of the international legal order, especially with respect to the enforcement of international legal rules lying outside the purview of any (quasi)judicial fora such as flaws from postwar peace treaties. 

The End of a World War  

While Japan ended its colonial rule of the Korean Peninsula following its surrender to the Allies at the end of WWII, the Peninsula was soon split into two entities.  Because of the Allies’ disagreement as to whether Korea was a belligerent party, neither Pyongyang nor Seoul signed the SFPT.  Despite its exclusion of both Koreas, the SFPT includes a China/ Korea entitlement clause (article 21).  Among other things, article 4—the framework provision on, inter alia, the disposition of property of Japan and of its nationals in the territories renounced by Japan (including the Korean Peninsula) and the relevant claims—is applicable to Korea by way of this special clause.  Yet the apparent omission of the reparation clause (article 14) sowed seeds of the lingering dispute over responsibility and reparations between Japan and South Korea. Read the rest of this entry…

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Compliance with IHL by Non-State Armed Groups: Some Practical Reflections at the 70th Anniversary of the 1949 Geneva Conventions

Published on August 21, 2019        Author: 

That non-State armed groups (NSAGs) engage in hostilities on a frequent basis is not news. Indeed, NSAGs are active in the majority of contemporary armed conflicts (at 19). What seems to have changed in the last few years is the increasing attention that the international community is paying to their behavior, largely due to the impact that they have on civilians. While it is undisputed that international humanitarian law (IHL) binds NSAGs (para 505), finding effective strategies to enhance their level of compliance remains challenging, especially considering that the baseline expectation is generally low (at 69).

Interestingly, while some NSAGs have been responsible for IHL violations, others have also shown a degree of compliance for certain rules during non-international armed conflicts (NIACs). As this year marks the 70th anniversary of the four Geneva Conventions of 1949, some reflections related to how parties to armed conflicts – in this case, NSAGs – actually behave are in order.

Describing NSAGs’ Variations

Generally, compliance has been defined as “behavioral conformity with existing norms and regulations” (at 65). For NSAGs, this implies the observed match between their behavior and their international obligations.

As parties to armed conflicts, NSAGs should not be seen as entities that either violate or respect international law without exception. Instead, they may follow certain rules while disregarding others. For instance, a NSAG may respect the prohibition of using and recruiting children in hostilities, but may summarily execute detainees or take hostages. Similarly, a group may deliberately attack health care facilities and transports in breach of IHL, while prohibiting the forcible displacement of civilians. At the same time, these non-State entities often modify their behaviors throughout the hostilities, reflecting and increase or decrease in their level of compliance with humanitarian norms. Wood has identified that civilian victimization is “anticipated during moments in which the viability of the groups is threatened or when it faces significant military setbacks” (at 15). Variation is particularly evident during peace processes (here, for an example). When a NSAG looks for political recognition, it might adopt a different attitude than a group whose main purpose is to show its strength or to terrorize the civilian population living in the territory it controls.

Accordingly, compliance with IHL should be conceived as a spectrum, rather than an on/off switch. Read the rest of this entry…

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Tanker Games – The Law Behind the Action

Published on August 20, 2019        Author: 

The conflict between some western States and Iran has reached a new phase. Last month, both sides arrested tankers off their coasts. Whereas the political intentions of either side are evident, difficult questions come up with regard to the legal assessment of these actions. They concern the extraterritorial application of a sanction regime, the law of the sea and countermeasures. The post will describe the facts related to the detention of a tanker off Gibraltar (1). It will be investigated if the regime of the transit passage (2) or of innocent passage (3) is applicable under the UN Convention on the Law of the Sea (UNCLOS). Thereafter, the post will study which State may rely on the respective rights (4). The post then will turn to the facts of the second case which happened in the strait of Hormuz (5). It will shortly mention Iran’s right to take measures for the safety of navigation beyond its territorial waters (6), and the regime of countermeasures (7). In part (8) the compatibility of military patrols by western States in the strait of Hormuz with the law of the sea will be studied.

The Facts related to the case off the coast of Gibraltar

On July 4, 2019 the British navy detained the tanker Grace 1, allegedly in the territorial waters of Gibraltar. The vessel was passing through the strait of Gibraltar after having circumnavigated Africa. The chief minister of Gibraltar declared in a press release that the vessel was seized in order to enforce EU sanctions against Syria. The decision was based on the EU regulation 36/2012, a law of Gibraltar of 29 March 2019 and a regulation of Gibraltar of 3 July 2019. According to art. 14 para. 2 of the EU regulation it is prohibited to make available economic resources to corporations listed in Annex 2 to the regulation which includes the Banyas Oil Refinery Company. The chief minister of Gibraltar alleged that the oil carried by the tanker came from Iran and was destined to the refinery; this is denied by Iran.

The EU regulation and the above-mentioned legislation of Gibraltar is applicable on the territory of Gibraltar and the territorial waters. Gibraltar claims territorial waters up to 3 nm.

Grace 1 is owned by a shipping company located in Singapore and flew the flag of Panamá. However, according to the Autoridad Marítima de Panamá the vessel was removed from the open registry of Panamá on 29 May 2019.

Transit Passage

It is generally recognized that this strait falls under art. Read the rest of this entry…

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Romeo Castaño v Belgium and the Duty to Cooperate under the ECHR

Published on August 19, 2019        Author: 

With a judgment of 9 July 2019, in the case of Romeo Castaño v Belgium, the second section of the European Court of Human Rights (the Court) held unanimously that Belgium had fallen short of its procedural obligations under article 2 of the Convention for failing to cooperate with the Spanish authorities in securing the surrender of an individual sought with multiple European Arrest Warrants (EAWs) in connection with serious charges of terrorism and murder.

These findings are landmark. While it has been long established that extradition may engage the Convention under the non-refoulement principle, never before had the Court found a breach of the Convention in connection with a State’s decision not to surrender an individual sought by an extradition request or EAW.

But the salience of the judgment is not confined to extradition. In fact, the case touches upon the important issue of the ‘symmetry’ between the ECHR and EU law and brings about an important development in the doctrine of positive obligations under the Convention.

The facts of the case

The applicants in the case are the children of Colonel Ramón Romeo, who was murdered in Bilbao in 1981 by an ETA commando. In 2013, one of the suspects, N.J.E., who found herself in Belgium, was arrested pursuant to two EAWs issued by Spain. Read the rest of this entry…

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Announcements: CfP Sociological Perspectives on International Economic Law and Human Rights Law; CfA Law, Culture and Human Rights in Asia and the Middle East; CfP Environmental Crimes Law Conference; CfS State Accountability under Private, Public, and International Law Conference

Published on August 18, 2019        Author: 

1. Call for Papers – Research Workshop: Sociological Perspectives on International Economic Law and Human Rights Law. International law is rooted in communities, influencing and affected by social groups and their socio-cultural features. This fifth workshop on the sociology of international law focuses on various sociological aspects pertaining to international economic law and human rights law, as well as to interrelationships between these two major legal fields. It will take place at the European University Institute, 8 – 9 May 2020. Contributors will explore diverse interactions between sociological concepts (such as identity, socialization, collective memory, social control or frames) and broad range of legal rules and institutions in these spheres. Scholars and graduate students are invited to submit abstracts by 15 October 2019. For full details about the workshop’s theme and the application processes, please click here

2. Call for Abstracts: Law, Culture and Human Rights in Asia and the Middle East. The Asian Yearbook of Human Rights and Humanitarian Law (AYBHRHL), Coventry University and BIICL invite submissions for Abstracts for conference papers to be considered for the conference. The deadline for submissions is 5 September 2019. Selected papers will be published in volume V AYBHRHL (2021) and will be invited to be presented at the conference. The conference will focus on the topic of Culture and Cultural Heritage in Asia and the Middle East, addressing culture and cultural heritage in times of peace and armed conflicts in the region. Further details can be found here.

3. Call for Papers: Environmental Crimes Law Conference. The Common Good Foundation in partnership with The Resolution CentreJersey Law Commission, and The Resolution Journal, is hosting an Environmental Crimes Law Conference on 31 October and 1 November 2019 in St. Helier, Jersey, Channel Islands. The deadline for submissions is 30 August  2019. More information can be found here
 
4. Call for Submissions: The State Accountability under Private, Public, and International Law Conference. The State Accountability under Private, Public, and International Law Conference seeks to examine the concept of state accountability from three distinct perspectives: private law, public law, and international law. The conference will be held at the London School of Economics and Political Science, Department of Law on 9 November 2019. We invite submissions that address the theme of state accountability, broadly construed, by way of wide-ranging topics. Please send an abstract of no more than 750 words and a short bio to the following email address: stateliabilityconference@gmail.com by 30 August 2019. Successful submissions will be notified by 8 September 2019, and will be invited to attend the conference’s official dinner. For more information see here, or email: stateliabilityconference {at} gmail(.)com.
 
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Hospital Bombings: Empirical and Theoretical Fallacies of Those Rejecting a Ban

Published on August 16, 2019        Author:  and

The argument we advance in our recent EJIL Article, ‘‘Hospital Shields’ and the Limits of International Law’, emerged from analysis of empirical data showing how, during the past several years, hospitals were being bombed on a daily basis. Comparing these attacks with official statements released by actors suspected of bombing hospitals, we discovered that one of the recurrent arguments used to legitimise the strikes was that the facilities had been transformed into ‘hospital shields’ and used to conceal military targets. We then decided to reconstruct the history of hospital bombings and found that since 1911 — the first time medical units were bombed from the air — belligerents have consistently justified aerial strikes by claiming that the medical units were being used to hide combatants or harbour weapons.  

This revelation led us to examine in detail the historical development of the legal clauses dealing with the protection of medical units in armed conflicts. Our analysis revealed that the clauses include a number of exceptions that have allowed belligerents to assert that the bombing was carried out in accordance with IHL. We argue that belligerents can do this since hospitals occupy a spatial and legal threshold during armed conflict, and that IHL, which is informed by the rigid distinction between combatants and noncombatants, does not have the vocabulary to deal with liminal people and objects. This, we maintain, enables belligerents to use the law to justify the attacks.  

Our assumption throughout the paper is that IHL is subject to constant interpretation and reinterpretation, and that the way states interpret the law — even if we disagree with their interpretation — helps to establish the law’s meaning. International law is, after all, shaped by states, and through their practices, manuals and utterances they help determine the interpretation of its clauses. Hence, the fact that for over a century many states, among them the most powerful ones, have justified the bombing of hospitals by claiming that they were used as shields is not something we can dismiss by simply claiming that they are misinterpreting the law. After all, those very states introduced the hospital shields exception.  Read the rest of this entry…

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More on Public International Law and Infectious Diseases: Foundations of the Obligation to Report Epidemic Outbreaks

Published on August 15, 2019        Author: 

In his recent post on the 2018-2019 Ebola Outbreak in the Democratic Republic of Congo, Mr. Villarreal inter alia mentions the connection between the International Health Regulations (IHR) and international human rights law, arguing that states’ obligations under the IHR are to be read in conjunction with those under the International Covenant on Economic, Social and Cultural Rights (ICESCR). Obviously, the right to health enshrined therein is of utmost relevance.

While that point of view deserves full support, a further link could be traced between international human rights law and “international law of infectious diseases” – the obligation of states to report outbreaks of infectious diseases, lying at the very heart of international efforts to cope with pandemics.

This post intends to demonstrate that the reporting obligation for infectious disease outbreaks can be inferred from general legal sources such as the duty of state co-operation and the human right to health as well as from the IHR – a specific regime. The below analysis purports to show how and why this could and should be done.

Disease outbreaks and the duty to co-operate

Although the mentioned Ebola outbreak was originally reported to the World Health Organization (WHO) by the Government of the DRC, states may well be disincentivised to notify outbreaks of contagion, especially on crucial early stages. Hence the need for incentives for honesty in this regard, not excluding legal ones.

The IHR (Art. 6) establish the reporting duty, i.e. the obligation of states to assess events occurring within their territories using a special decision-making instrument attached to the IHR and timely notify the WHO of all events which may constitute a public health emergency of international concern (the legal regime for declaring a PHEIC has been discussed in the mentioned post).

The duty (sometimes referred to as the principle) of state co-operation under general international law and the specific obligation of reporting epidemic outbreaks share an obvious fundamental similarity: both pursue the same objective – addressing issues that transcend national borders and are beyond sovereign control. Although individual states are responsible for preserving public health in their territories, their efforts may be rendered meaningless without international co-operation (J. Tobin, The Right to Health in International Law (2012), p. 325). In the WHO’s words, “health is a shared responsibility, involving equitable access to essential care and collective defense against transnational threats” (UNSG, Global Strategy for Women’s and Children’s Health (2010)).

This finding, however, considerably loses in value due to the legal nature of the duty to co-operate. On the one hand, it is enshrined in the United Nations Charter (Arts.1(3), 2, 55, 56), as well as the UNGA’s 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States and has allegedly become a part of customary international law (R. Wolfrum, International Law of Cooperation (2010), para. 13). On the other hand, under the UNC, the principle of state co-operation is said to reflect one of the UN objectives rather than constitute a binding obligation (R. Wolfrum, International Law of Cooperation (2010), para. 16). The mentioned UNGA Resolution adds little clarity.

The duty to co-operate put into context

So, should it be founded upon the duty to co-operate, the obligation to report epidemic outbreaks will end up being no more enforceable than the latter. Still, there is a chance of enhancing the enforceability by putting the duty of co-operation into a specific context. Read the rest of this entry…

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The Interests of Justice- where does that come from? Part II

Published on August 14, 2019        Author: 

Editor’s Note: This is part II of a two-part post. Read part I here.

After tracing the drafting history of article 53 of the Statute in part I of this post, part II is dedicated to the consequences that may be drawn from the relevant drafting history for the application of the “interests of justice” criterion.

The  “Interests of Justice”: a Criterion for a Limited Use

While the preparatory works of the Statute reveal that the drafters intended to provide for an “interests of justice” criterion, it is clear that they also intended to restrict its use, especially at the stage of the initiation of the investigation. This seems logical, as such a criterion was originally proposed only with regard to the initiation of prosecutions.

This conclusion arises from a comparison of the draft Statute as it stood on 18 June 1998 with the text of article 53 adopted during the last week of the Rome Conference. Such a comparison shows radical changes during the negotiations in Rome: (i) a negative formulation was finally adopted, whereas a positive determination was required from the Prosecutor at the beginning of the Rome Conference; (ii) the text of article 53(1)(c) was amended to start with the necessity to first consider factors militating in favour of an investigation (“the gravity of the crime and the interests of victims”); and (iii) a high threshold was inserted in relation to the “interests of justice” criterion (“substantial reasons”) in comparison to the relatively low threshold (“reasonable basis”) for the two other criteria provided for in article 53(1)(a) and (b). In addition to those changes, the drafters also adopted a specific mechanism of judicial review under article 53(3)(b) of the Statute with regard to the “interests of justice” criterion, which the Pre-Trial Chamber may initiate proprio motu.

Although the vagueness of the “interests of justice” criterion is regrettable, the absence of a specific definition in the Statute was “compensated” by the procedural compromise described in the preceding paragraph, which aimed to limit the use of interests of justice criterion and prevent its abuse. As mentioned already in the part I of this post, it was this procedural compromise that alleviated, to a certain extent, the concerns expressed by several delegations during the negotiations with regard to the existence of this criterion, and finally allowed its adoption in Rome. Read the rest of this entry…

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The Interests of Justice- where does that come from? Part I

Published on August 13, 2019        Author: 

There has been much debate about the decision issued by Pre-Trial Chamber II rejecting the request by the Office of the Prosecutor to open an investigation into the situation in Afghanistan because such an investigation would not serve “the interests of justice”.

Despite the recent surge in academic interest in this criterion, which appears in article 53 of the Rome Statute (the “Statute”) of the International Criminal Court (the “ICC” or “Court”), not much has been written about its origins (for an exception, see here). Yet, the drafting history of the “interests of justice” criterion is highly instructive for its application. Accordingly, this post is divided in two parts: the first part will trace the drafting history of the “interests of justice” criterion; the second part will provide an interpretation of this criterion as informed by its drafting history.

It is worth recalling that the negotiations on the Rome Statute started on the basis of a project which was developed and finally adopted in 1994 by the International Law Commission (“ILC”). This project was discussed first in the context of an ad hoc Committee established by the United Nations General Assembly, which convened in April and August 1995. Then, a Preparatory Committee was established by the same Assembly, which convened twice in 1996, three times in 1997 and once in 1998. It is the final report of that Committee in April 1998 which was the basis for the negotiations during the Rome Conference, which took place from 15 June until 17 July 1998. Those formal sessions were completed by intersessional meetings during which useful progress was made.

The Draft Statute of the International Law Commission

There was no mention of the criterion of “interests of justice” in the Draft Statute for an International Criminal Court adopted by the ILC (“ILC Draft Statute”) in July 1994. Article 26 (‘Investigation of alleged crimes’) of the Draft Statute did not require the Prosecutor to consider specific criteria in deciding whether to initiate an investigation. This provision simply stated that the “Prosecutor shall initiate an investigation unless the Prosecutor concludes that there is no possible basis for a prosecution under this Statute and decides not to initiate an investigation”, in which case the Prosecutor had to inform the Presidency accordingly Read the rest of this entry…

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