EU-Israel Trade Agreement Does Not Apply to Products from the Occupied Territories

Posted on November 4, 2009 by Valentina Azarov

On 29 October 2009, Attorney General Bot published his Opinion on a preliminary reference addressed to the European Court of Justice by a German court on the application of the EC-Israel Association Agreement in the context of products originating from the occupied Palestinian territories and the question of their entitlement to preferential customs treatment under the EC-Israel Preferential Trade Agreement (for the full text of the Opinion; and the press release).

According to the AG’s Opinion: (i) the customs authorities of the importing State are not bound by the result of the subsequent verification carried out by the customs authorities of the exporting State, and (ii) goods certified by the Israeli customs authorities as being of Israeli origin but which prove to originate in the occupied territories, more specifically the West Bank, are not entitled either to the preferential treatment under the EC-Israel Agreement or to that under the EC-PLO Agreement.

In the framework of the Euro-Mediterranean Partnership, bilateral agreements have been concluded between the Community and its Member States , of the one part, and the majority of countries of the Mediterranean basin, of the other part. Those agreements provide, in particular, that products originating from the Mediterranean countries concerned may be imported into the European Union free of customs duty. The Community and its Member States concluded such an agreement both with Israel (EC-Israel Agreement) and the Palestine Liberation Organisation (EC-PLO Agreement), acting for the benefit of the Palestinian Authority.

Brita is a German company which imports drinks makers for sparkling water manufactured by the company Soda-Club based in Mishor Adumin, a settlement in the occupied West Bank. When the Israeli customs authorities were asked about the origin of the products by the German company, which suspected that the products originated in the occupied territories, the Israeli customs authorities labeled these products as coming from Israel. The German Court submitted a reference for a preliminary ruling on whether “the German customs authorities are bound by the result of the subsequent verification of origin of those products carried out by the Israeli customs authorities.” It also asked which agreement would apply to goods originating from the occupied territories.

The AG equally holds that the certificate issued by the exporting State must be capable of certifying unambiguously the products origin from that State in order that the preferential treatment relating to that State may be applied to those products. In this context, the AG recalls that Israel’s borders were defined by the UN Plan for the Partition of Palestine, approved on 29 November 1947 by the United Nations, according to which the territories of the Gaza Strip and the West Bank, including East Jerusalem, do not form part of Israeli territory. Moreover, pursuant to the Israeli-Palestinian Agreement, Israel and the PLO both view the West Bank and the Gaza Strip as a single territorial unit.

The AG proceeds by upholding that there is a general presumption that the customs authorities of the exporting State are in the best position to verify directly the facts which determine the origin of the products. Therefore, the importing State is, in principle, bound by the result of the subsequent verification by the exporting State. However, since, despite the abovementioned, none of the parties to this agreement is in the best position to give a unilateral interpretation of its territorial scope of application (taking into consideration Israel’s repeated insistence on the inclusion of settlement products under the agreement by declaring them as originating from inside Israel), the presumption does not apply in this case and the German authorities are not bound by the verification of origin carried out by the Israeli customs authorities.

The bottom line, according to AG Bot, is that preferential treatment under the EC-Israel Agreement cannot be applied to goods originating in the West Bank and, more generally, in the occupied territories. Meanwhile, the entitlement to preferential tariffs under the EC-PLO Agreement may be granted to goods manufactured in the occupied territories but only if the certificates of origin necessary are issued, in accordance with that agreement, by the Palestinian authorities.

Notably, the AG’s Opinion is not binding on the Court of Justice. It is the role of the AG to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case and judgment will be given at a later date.

* * *

In the same tone, it is useful to recall a research paper prepared at the School of Oriental and African Studies, University of London on ‘UK economic links with Israeli settlements in occupied Palestinian territory’, published February 2009. The report examines Israel’s relations with the UK and the EU, looks at the UK companies importing from Israeli settlements and other British business links with the occupied territories, all in light of the UK’s obligations in international law.

Filed under: Corporations in International Law, ECJ, EU/EC Law, Human Rights, Middle East Crisis, Public International Law | Leave a Comment »

The Security Paradigm in the Israeli Supreme Court

Posted on October 30, 2009 by Valentina Azarov

In a recent judgment of the Israeli Supreme Court, HCJ 7001/09 Kareem AlKanua v Commander of the Army Forces in Gaza et al. (rendered by Justice Levi on 26 October 2009) the petitioner a Palestinian resident of the Gaza Strip, requested the Court to oblige the state to allow him to enter Israel for the purpose of crossing over to the West Bank in order to receive urgent medical treatment in Ramallah. The petition also included a medical expert’s opinion on the condition from which the petitioner suffers, which concludes that the petitioner is bound to become blind if he does not undergo the required operation. The Court’s one paragraph judgment in the case consists of the following,

“The respondents object to grant the petitioner the requested remedy [i.e. exit out of the Gaza Strip], and their objection is grounded principally on security considerations. For this purpose they have placed before us intelligence material that we examined ex parte, and in light of what was said in it we came to the conclusion that there is no error in the state’s decision that would justify our interference therewith. Due to this, the petition is rejected.” (emphasis added)

This judgment gives rise to serious concerns on both formal and substantive levels. The Court’s laconic and ungrounded rationale that does not consider even the applicable normative framework that governs the circumstances of the case generates a severe violation of the petitioner’s procedural rights. Notably, this petition begs the examination of both Israel’s obligations vis-à-vis the humanitarian situation in the Strip, as well as a consideration of the broader context in which Palestinian medical patients need to exit the Gaza Strip in order to receive adequate treatment that does not exist there. Also, the Court is expected to pay regard to the state’s derogation from its human rights obligations that are applicable extra-territorially as a consequence of Israel’s persisting ‘effective control’ (as per the law of occupation under IHL) over the Gaza Strip, and examine the proportionality of its decision in light of alternative, less depriving options. Instead, it rejects the request altogether, and prevents the petitioner from exiting the Gaza Strip given the obvious consequences of this decision.

An interesting normative matter that is reflected in this case is the question of the legality of the derogation to human rights obligations under what human rights treaties refer to as a declared “state of emergency”. Although it is true that the lawfulness of a derogation is not to be determined in every individual case on an ad hoc basis (since derogation is not about individual situations but about a general regime declared by a state that finds itself in a certain situation), clearly the declaration of a “state of emergency” under Article 4 of the ICCPR cannot act as a veil of immunity for all kinds of state actions. It should remain analytically clear that whilst the mere act of derogation under the auspice of a “state emergency” regime may be legal, the character of the particular derogation (i.e. its proportionality, purpose, arbitrariness, reasonableness, etc.) must be subjected to strict judicial scrutiny. Moreover, the case at hand concerns the right to life and the prohibition of inhuman and degrading treatment, which cannot be derogated from even in times of war or other public emergency.

The judgment also reminds those of us who are familiar with the Court’s judicial practice on the occupied Palestinian territories over the years of Israel’s occupation of its heedlessness towards international law, and reflects the Court’s strongly arguable cynical approach to the state’s  human rights and international law obligations.

Filed under: Human Rights, International Humanitarian Law, International and national law, Middle East Crisis, Public International Law | 4 Comments »

Honduran military government brings ICJ claim against Brazil

Posted on October 29, 2009 by James Harrison

A press release from the ICJ Registrar has announced that an application has been filed by Honduras against Brazil.  The proceedings relate to “legal questions concerning diplomatic relations and associated with the principle of non-intervention” which allegedly arise from the fact that a number of Honduran exiles, including the ousted President, José Manuel Zelaya Rosales, have taken refuge in the Brazilian embassy.  Rosales was diposed by the military in June 2009 in a coup d’etat.  He went into exile but then returned covertly to the country in September and sought refuge in the Brazilian embassy.  The military government currently in charge in Honduras alleges that the embassy is being used “as a platform for political propaganda and thereby threatening the peace and internal public order of Honduras” in violation of the principle of non-intervention as found in the UN Charter and the 1961 Vienna Convention on Diplomatic Relations.  This is a particularly controversial application given the international condemnation of the coup d’etat – see New York Times, After Losing Honduras, Ousted Leader Wins International Support.  Indeed, questions could be raised about whether or not the military government is capable of acting on behalf of Honduras, given that the UN General Assembly has explicitly called on “all states to recognise no government other than that of the Constitutional President, Mr. José Manuel Zelaya Rosales” – see BBC News, UN Backs Honduran Leaders Return; UN General Assembly Resolution 63/301, Situation in Honduras: democracy breakdown.

Filed under: ICJ, Public International Law, United Nations | Leave a Comment »

Book reviews invited by The George Washington International Law Review

Posted on October 27, 2009 by Dominik Zimmermann

The George Washington University International Law Review is now accepting submissions of book reviews for publication in Volumes 41 and 42. Book reviews should be written on a recent or forthcoming book discussing a timely issue in international law. Word count should not exceed 9000 words. Submissions must be in Microsoft Word (.doc) format and include a copy of the book-review author’s curriculum vitae.

Please send submissions and any inquiries to Dana Parsons at dparsons@law.gwu.edu.

Thanks to Dana Parsons for drawing my attention to this.

Filed under: Book review, Call For Papers, Publications | Leave a Comment »

A report on Transnational Corporations and the Right to Food

Posted on October 21, 2009 by Jernej Černič

New York University Students for Human Rights have prepared a report on Transnational Corporations on the Right to Food. The Report was requested by the UN Special Rapporteur on the Right to Food ‘to inform a multi-stakeholder consultation convening on June 19-20, 2009 in Berlin, Germany on the role of the agribusiness sector in the realization of the right to food.’ The Report concludes in the following way:

As has been illustrated by the various sections of this paper, TNCs acting at all levels of the global food supply chain have a powerful influence on the realization of the right to food. Much of this paper has covered the negative effects that corporate concentration and buyer and seller power have on small-hold farmers and farm workers and their rights to adequate food. This paper has also attempted to identify ways in which TNCs can begin to have powerful positive effects on the achievement of the right to food for those who supply and sustain them. With strong efforts by governments, consumers, workers, and most importantly TNCs themselves, those who feed the rest of the world can also feed their own families, and the world can move closer to the ICESCR’s twin goals of efficient food production and equitable food distribution.

Filed under: Corporations in International Law, human rights and business | 2 Comments »

Human Rights – A Drop of Liberation or Fig Leaf of Legitimation?

Posted on October 21, 2009 by Ole W. Pedersen

Newcastle Human Rights Research Group Symposium Announcement: Human Rights – A Drop of Liberation or Fig Leaf of Legitimation? 

Date: 23 January 2010, Newcastle Law School, Newcastle University, UK. 

Confirmed Speakers 

Professor David Kennedy, Harvard University – ‘The International Human Rights Movement: Still Part of the Problem?’ 

Professor Keith Ewing, Kings College London – Title TBC 

Professor David Bonner, University of Leicester – ‘If you cannot change the rules of the game, adapt to them: United Kingdom responses to the restrictions set by Article 3 ECHR on “national security” deportations’ 

Professor Christine Bell, University of Ulster – ‘Human rights activism, expertise and academic inquiry: beyond legitimation v emancipation – a self-critical reflection’ 

Steven Wheatley, Reader, University of Leeds – ‘The problematic authority of international human rights law.’ 

This symposium draws upon the proliferation of academic commentary asserting that the international human rights system is in a state of crisis in the first decade of the twenty-first century, a discourse which requires an evaluation of both the impact and future direction of the human rights project. With papers from world leading authorities on human rights, this symposium provides a forum for the re-evaluation the effectiveness of human rights as an element of international law and in the domestic context of the United Kingdom at the end of a decade when the human rights project has faced renewed and novel challenges. Moreover, this Symposium draws together skeptics and supporters as well as disparate strands of transatlantic scholarship.              

A limited number of places for delegates are available on a first-come-first-served basis, at a cost of £30 per head (or £10 per head for full-time postgraduates), inclusive of lunch and refreshments. Full details of the Conference Programme are available on the Newcastle Law School Website:  http://www.ncl.ac.uk/nuls/research/groups/humanrightsgrp.htm 

For further details regarding this symposium, please contact Dr Rob Dickinson (r.a.dickinson@ncl.ac.uk) or Dr Ole W. Pedersen (ole.pedersen@ncl.ac.uk).

Filed under: Conference, Human Rights, Scholarship | Leave a Comment »

Administrative Detention – A Rule, No Longer An Exception

Posted on October 20, 2009 by Valentina Azarov

Administrative detention has been a contentious topic for international lawyers since its invocation by governments claiming that it is a principal tool in the often-lawless global ‘War on Terror’. Despite the popularity that this mechanism has earned amongst a growing number of states, principally those participating in the ‘War on Terror’, it has been neglected that the use of preemptive detention is illegal when used arbitrarily and disproportionately in a manner that does not allow for any remedy at all to be sought against this egregious violation of the fundamental human right not to be subjected to arbitrary deprivation of liberty.

Israel’s extensive and systematic use of the mechanism of administrative detention very clearly violates international law. Israel has been holding hundreds of Palestinians for months and years under administrative orders, without bringing their case before the prosecutor due to lack of evidence. By doing so, it denies them rights to which ordinary detainees in criminal proceedings are entitled: they do not know why they are detained, when they will go be released and what evidence exists against them, thereby being deprived of their right to a fair trial.

The extensiveness of this practice – namely, the fact that today there are 335 men, women and children being deprived of their liberties through this mechanism – violates the exception criterion that is imperative to the use of this inherently draconian measure of limitation available in international human rights law. By upholding a declaration of a never-ending “state of emergency”, Israel has been detaining hundreds of Palestinians under renewable administrative orders without an end in sight (See the recently published report by two NGOs, Btselem and HaMoked).

The Israeli Unlawful Combatants Law 2002 (amended in 2008), also discussed by this recently published report, establishes another form of administrative detention – one that is more permissive and less demanding in terms of the procedures required of the state. It enables the state to carry out  arrests of a larger scale, for unlimited periods of time and without any judicial review. The provisions of the law follow the “membership approach” in the sense that they permit the detention even of a person who is a “member of a force carrying out hostilities against the State of Israel”, and not only someone who is proved to present a personal and direct danger to the security of the state. Practice shows that many detentions are exercised as punishment for a past act, instead of serving a preventative purpose that is based on clear, convincing, updated and sufficient administrative evidence. Interestingly, the report also details how the Israeli Supreme Court has rejected the legal challenges that have been made to the legality of this law’s provisions (See, for a discussion of the monumental Unlawful Combatants judgment, here and here).

Scholars have covered the topic of administrative detention extensively, both as a mechanism in the ‘War on Terror’, thereby also examining the applicability of traditional international humanitarian law (IHL) to these situations. An IHL analysis of the use of preventative detention is  very different to that under the rules of international human rights law, namely as a derogation to Article 4 of the ICCPR, such a derogation being only possible “in time of public emergency which threatens the life of the nation” and “to the extent strictly required by the exigencies of the situation” (See, e.g., de Zayas’ article in the IRRC; amongst many others). The two sets of rules are applicable to different factual situations – one in time of ongoing armed conflict and intense hostilities, namely Article 78 of the Fourth Geneva Convention and the other in times of peace or arguably also in the ‘War on Terror’ – and therefore unquestionably present different positions on the legality of the use of preemptive detention.

A principled question that is not uncontroversial is still at stake, namely, whether the indefinite detention of civilians is permitted in time of armed conflict? (See Goodman’s article on the detention of civilians  in armed conflict for a near comprehensive discussion). And, secondly, what is the appropriate threshold of ‘dangerousness’ that should be delimited in order to justify the exercise of such means in order for them to comply with the “extent strictly required by the exigencies of the situation”? Notably, even in those cases concerning the most dangerous individuals, the enjoyment of the procedural right to a fair trial must be strictly ensured.

This subject matter also reminds us of more general questions on the relevance of traditional IHL rules in the ‘War on Terror’ as the whole; legal queries that were born in the wake of the attacks of 11 September 2001 and have arguably lost much of their momentum since (See, on the relevance question, Belz’s article). Still, despite there being a number of unresolved legal questions in this regard, governments continue to use draconian measures in their self-professed ‘wars on terror’, and are afforded a very unexpected and unacceptable leniency in the derogation from fundamental norms of international law by the international community. Over the last eight years, this has unquestionably contributed to the distortion of even some of the most solid and uncontested international laws. The United States has unquestionably been at the lead of advocating for the legality of this practice by continuing to use illegal detentions, thereby curbing the limitations on the acceptability of such practices and legitimising their use by nations worldwide.

Detention cannot be a substitute for a fair process and punishment, and it cannot be systematised to become the rule and not the exception, which is what international law prescribes. Whether the fundamental legality of the mechanism of preemptive administrative detention will ever be decisively revoked by the international community is still a contentious issue. Nevertheless, the illegality of the arbitrary and lawless deprivation of liberty from those who are not afforded even the basic right to a fair trial is still a basic pillar of international human rights law and an unequivocal customary norm.

Filed under: Human Rights, International Humanitarian Law, International and national law, International terrorism, Middle East Crisis, Public International Law, Publications | Leave a Comment »

Melbourne Journal of International Law – Call for Papers

Posted on October 20, 2009 by Dominik Zimmermann

Below is a call for papers of the Melbourne Journal of International Law. Thanks to the 2010 editors Tim Farhall, Christopher Hibbard and Mary Quinn for drawing my attention to this.

The Editors of the Melbourne Journal of International Law (‘MJIL’) invite submissions on areas of interest in international law for the first issue of their 11th volume, to be published in June 2010.

MJIL, Australia’s premier generalist international law journal, is a peer-reviewed academic journal run through the Melbourne Law School at the University of Melbourne. MJIL’s objective is to facilitate scholarly research and critical discussion of private and public international law issues.

MJIL is a bi-annual publication, published in June and October each year. MJIL publishes articles, commentaries, case notes and book reviews. Articles should be in the vicinity of 10 000 to 20 000 words in length and be an original and detailed contribution to international law scholarship. Commentaries explore recent developments in a specific field of international law and their practical applications, and should be between 5000 and 8000 words in length.

All articles, case notes, commentaries and review essays published in MJIL are subjected to a double-blind refereeing process, involving at least two specialists in the field. Once accepted for publication, submissions will then be edited for compliance with the Melbourne Manual for International Law Citation and the Australian Guide to Legal Citation. Authors have an opportunity to review the final version of the piece prior to publication. Our publication policy can be accessed at <http://mjil.law.unimelb.edu.au/submit/policy.pdf>.

All submissions should be sent to law-mjil@unimelb.edu.au in Word format, together with a signed publication policy.

The submission deadline for 11(1) is 29 January 2010.

Filed under: Call For Papers | Leave a Comment »

What to Do in Copenhagen

Posted on October 15, 2009 by Dominik Zimmermann

By Graciela Chichilnisky

The global summit in Copenhagen in December will decide the fate of the Kyoto Protocol, the only international agreement we have ever had to combat the dangers of climate change.   But the Protocol expires in 2012 and – like Cinderella – it will become a pumpkin as the clock strikes 12.  The Danish capital city is the last stop on the rollercoaster ride of hope and despair since the Protocol was signed by 160 nations in 1997. Partial attempts to move negotiations forward limped from failure to failure in recent years.  The world’s two largest emitters – the US and China – cannot agree on limits, and the outlook looks bleak. 

Yet, as an insider in the Kyoto process with 25 years of UN experience, I can read the smoke signals. I believe that Kyoto is worth saving, and it can be saved.  The failures so far are meaningless because nothing at the UN happens until the 11th hour, when we are forced to reach a decision.  Every nation has an incentive to procrastinate: nobody wants to reduce carbon emissions on its own. Yet every nation is needed to reach a resolution. Global warming is the first true global problem we ever faced and we need every nation to participate or else there is no solution.  By burning its own fossil fuels, Africa could unwillingly cause trillions of dollars worth of damage to the US when sea levels rise and polar caps melt. There is nowhere to hide.  

But UN negotiators are sophisticated diplomats who will not break cover. Without compulsion to agree, there will be no agreement.  The Berlin Mandate in 1995 committed the world to an agreement, and the Kyoto Protocol was born in 1997. 

In 2007, the Bali gathering concluded that this years meeting in Copenhagen would resolve the problem of Kyoto post-2012. So, in this context, Copenhagen is “do or die”. As the nations get ready for the Danish showdown, the pieces are falling into place for a major confrontation between the two largest emitters, the US and China.

This is where the environment meets geopolitics. The two nations alone could cause catastrophe for the world. The US does not want to limit its emissions unless China does, but developing nations are not required to reduce emissions without compensation.  They need energy to stave off poverty, and 89% of the world’s energy comes from fossil fuels. More than 50% of the people in the world live on less than $2 per day, and in excess of 1.3bn people are at the edge of survival with $1 per day.  Developing nations house 80% of humankind but emit only 40% of the world’s emissions, while 60% of global emissions originate from the rich nations that house 20% of the world’s population. Poor nations can hardly reduce energy use and compromise economic growth that is sorely needed to eradicate poverty. 

The stand-off between the US and China is reminiscent of the Cold War between Russia and the US in the middle of the 20th Century.  Russia and the US both refused to limit their nuclear arsenal unless the other did first.  The times are different, the weapons are different, but the situation is the same.  

A new type of market 

Kyoto is the first global agreement based on a global market solution – one that changes the value of the global commons. For the first time in history we are enlisting financial innovation for the conservation of the planet’s global commons, and our species’ survival. 99.9 percent of all species that ever existed have become extinct. The challenge is to be the exception not the rule. The United Nations is our only hope and its Kyoto Protocol is due to expire on 2012. It is a close call. 

The Kyoto Protocol took almost 13 years to negotiate and ratify. As one of the main architects of the carbon market, I know how it originated, the main protagonists behind its creation and the current issues that threaten to undermine it when it expires in 2012.[i]  Key to the survival of the Kyoto agreement, and that of the Earth as we know it, is a greater co-operation between developing countries and the West, closing the global income divide whilst simultaneously resolving the climate crisis. The growing wealth gap between the rich and the poor nations is not incidental to this situation. It is its root cause.  It is at the foundation of an unsustainable use of the earth’s resources.[ii] 

This post proposes modest changes in Kyoto’s carbon market that could shift the playing field on which the Copenhagen agreement will be negotiated – making it much more likely to have a successful outcome, one that is more advantageous to the US, EU and Japan and is acceptable to China, India, Brazil, Mexico and all the developing nations – and fits the needs of the small island nations whose survival is directly at stake.  Oil nations could benefit from the technological innovation I propose – Saudi Arabia is on the record espousing a commitment to become a leader in solar power in this century.[iii] Significantly, a representative of the China delegation at a recent UNCTAD meeting of experts April 2009, has gone on the record agreeing to this proposal in principle and several members of the US Congress have expressed support.[iv]

However, there is a stark reality that is pointed out by conservatives in the US Senate: there is no point for the US and other rich nations to reduce emissions on their own.  The developing nations contribute today a minority of the emissions, but in 20 or 30 years as they grow, they will hold the deciding card on global warming.

Small Island States, Africa and Latin America 

The carbon market that I designed and crafted into the Protocol is key because $60bn in carbon credits is traded each year in the EU’s Emissions Trading System (ETS) and this promotes accelerated clean technology and financial assistance for sustainable development. It is the basis for a solution.

Developing nations do not trade in the carbon market because they have no limits on emissions, but they use the Clean Development Mechanism (CDM), which compensates (with carbon credits) private investments from industrial nations that reduce emissions. 

According to the World Bank – this has led to more than $23bn in successful, productive and clean transfers.

Yet so far, more than 60% of all CDM funding has gone to China, because the CDM is designed to reduce emissions and China – as the largest emitter – has the most to reduce.  Africa is responsible for only 3% of the world’s emissions and therefore has obtained very little CDM funding. Same is true for Latin America. This needs to change.  

The risks are not equally distributed. Small island states face the worst risks, as hundreds of millions of people face the relentless and implacable rising seas. They also emit almost no carbon dioxide and therefore they have little to gain from the Protocol’s Clean Development Mechanism. They get no help from the Kyoto Protocol’s Mechanism. This also has to change. 

Is it possible to find a solution to this dilemma? Can one find a solution that is acceptable to both wealthy and poor nations? Yes. A solution was achieved in Kyoto when the carbon market became the two-sided coin that allowed the Kyoto Protocol to be signed by 160 nations in 1997. The carbon market starts from bounding wealthy nations’ emissions, and therefore was supported by the developing nations. Yet the carbon market offers flexibility since some nations can be above their limits and purchase rights to emit from others that are below – so the world implements important and needed reductions limits. The market flexibility appealed to the US and to other industrialized nations.  This is how the Protocol was born in 1997. 

It is possible forge a similar solution now? 

The interests of the industrialized and developing nations are so opposed that we need a solution that is truly a “two-sided coin” one that looks the opposite to each party. We need a solution that targets the nations that are most at risk from global warming. 

We need a coin with two sides. Indeed, it is the only type of solution that will work in Copenhagen. This is what I propose here. 

How can we reach a consensus between the industrial and the developing nations? 

Consensus between Industrial and Developing Nations 

There is a formula that uses the Protocol’s own structure and updates it to overcome the impasse and forge a consensus between rich and the poor nations.  In addition it targets precisely the nations who need it most: small island states, African and Latin American states. 

The formula proposed here has two aspects, financial and technical assistance, both of which were highlighted at July’s G8 summit by the G77, and it has been officially supported by the Chinese delegation at an UNCTAD Meeting of Experts last April. 

The financial part is an interpretation of existing law – Article 4 of the Convention – engineered so that both sides get what they want – and the technological aspect makes sure that the reductions are feasible. The former is a modest extension of the carbon market, and the latter a modest extension of the Clean Development Mechanism (CDM). Both are reasonable and acceptable interpretations of existing law. 

The Convention does not say that China and the developing nations should never have limits – it says they should have no limits unless they are compensated.  This is quite different.  What we need, therefore, is a form of “compensation” that fits the bill, and eliminates the opposition from both sides.  I am talking about trade rather than unilateral compensation – and in the US we are very comfortable with that term. Nobody needs to be the first mover – a simultaneous financial solution makes this all possible. 

For example, the US can buy an option to reduce Chinese emissions, thus obtaining what it wants, while providing “compensation” to China as is required by the UN Convention for developing nations.  

At the same time, the Chinese can secure a minimum price for the credits, ensuring that they would not be selling economic growth for a pittance. The entire transaction could involve little in terms of monetary exchange but it will set emissions limits on both nations at the same time. Secondary markets can trade the corresponding options, thus providing liquidity and stability to the carbon market and its Clean Development Mechanism.[v] 

The proposal allows the US and China to save face by each saying at home (truthfully) that they are sticking to their original position – while at the same time both countries may also say (truthfully) that they got what they want from the other. 

In the G-8 meeting of July 2009 developing nations were loath to accept any obligation without specific commitments of financial and technical assistance – and failed to agree on a formula. This is the sticking point in the negotiations. The formula proposed here provides financial and technical assistance that should work for both sides.

Compensation can also take the form of export credits for ‘negative carbon technology’ that makes emissions reduction possible beyond what a region emits. Negative carbon means that Africa can reduce 20% of global carbon in the atmosphere, while it emits only 3 %. The Clean Development Mechanism  can certify new technologies that produce energy while reducing carbon from the atmosphere, funding poor nations who adopt this solution. 

When used in Africa, the technologies can help the region reduce more carbon than it emits, meaning the continent can attract significant CDM funding that was not possible until now. 

For rich nations, this involves US$43 trillion in energy infrastructure – the right size to stimulate today’s world economy –creating technology jobs, increasing exports and stimulating trade. 

Copenhagen is the “do or die” mission for the climate negotiations.  The price of failure could be catastrophic but there is a solution available. 

Will the international community step up to the plate, and save Kyoto? 

Next Steps 

A modest extension of the Kyoto Protocol carbon market, which would fix a heretofore intractable impasse, won’t itself solve all the political challenges that still remain.  However, I believe it is necessary to have any chance of a successful outcome. 

Of course there are many terms to determine here, when and how and how much. But this is good, not bad – it provides a framework that can be established in principle and allows for serious negotiation in Copenhagen and beyond.  This is what happened after the Kyoto Protocol in 1997. 

The United States has a unique political opportunity to be the nation spearheading the push for this critical change. We need a solution to the zero-sum game of escalating emissions.  Otherwise, we face a new cold war, all about warming. Copenhagen could be the dawn of a new cooperative global future. 

Will the international community step up to the plate, and save Kyoto? 

Professor Graciela Chichilnisky is UNESCO professor of mathematics and economics, director of Columbia Consortium for Risk Management and professor of economics statistics at Columbia University, NY. Her new book SAVING KYOTO, co-authored by Kristen A Sheeran, is published in September by New Holland, £8.99.  Professor Chichilnisky will be visiting the UK in early October; see weblinks for details of her keynote speeches.  

Web links:

www.chichilnisky.com

www.thersa.org

www.lse.ac.uk

www.ideasfestival.co.uk

 

References 

Chichilnisky, G. and K. Sheeran, Saving Kyoto, New Holland, London, 2009. 

Chichilnisky, G. and G. Heal, Environmental Markets: Equity and Efficiency, Columbia University Press, New York, 2000. 

Chichilnisky, G., Beyond the Global Divide: From Basic Needs to the Knowledge Revolution, to appear, 2010. 

Chichilnisky, G. Development and Global Finance: The Case for an International Bank for Environmental Settlements (IBES), United Nations Educational, Scientific and Cultural Organization (UNESCO) and United Nations Development Programme (UNDP), Office of Development Studies, New York, Discussion Paper no. 10, September 1996. 

United Nations Conference on Environment and Development (UNCED). “United Nations Framework Convention on Climate Change (UNFCCC)” 1992. 

Chichilnisky, G., “The Greening of the Bretton Woods” Financial Times, Wednesday, 10 January, 1996, p. 8. 

Jones, N. “Sucking carbon out of the air”, Nature, 17 December, 2008. Published online at http://www.nature.com/news/2008/081217/full/news.2008.1319.html 

Jones, N. “Sucking it up”, Nature vol. 485, 30 April, 2009. 

Chichilnisky, G. and P. Eisenberger, “How air capture could help to promote a Copenhagen solution”, Nature vol. 495, 25 June, 2009. 

The Royal Society, UK: “Geoengineering the climate: science, governance and uncertainty” September 2009 Report, http://royalsociety.org/displaypagedoc.asp?id=35217 

Eisenberger, P., R. Cohen, G. Chichilnisky, Chance, R., et al., “Global Warming and Carbon-Negative Technology: Prospects for a Lower-Cost Route to a Lower-Risk Atmosphere”, Energy and Environment, 2009. 

Chichilnisky, G. and P. Eisenberger, “Energy Security, Economic Development and Global Warming: Addressing short and long term challenges”, International Journal of Green Economics, 2009.

 

[i] See Chichilnisky and Sheeran, Saving Kyoto (2009).

[ii] Chichilnisky and Sheeran, Saving Kyoto (2009); Chichilnisky and Heal, Environmental Markets: Equity and Efficiency (2000); Chichilnisky, Beyond the Global Divide: From Basic Needs to the Knowledge Revolution, to appear; Chichilnisky, Development and Global Finance: The Case for an International Bank for Environmental Settlements (1996).

[iii] Ths statement was made by Ali Al-Naimi   — Minister of Petroleum and Mineral Resources, Saudi Arabia, at the Energy Pact Meeting in Geneva, 2009, http://www.energypact.org.

[iv] This is Article 4 of “United Nations Framework Convention on Climate Change (UNFCCC)” (1992).

[v] This was proposed earlier by the author in Chichilnisky, “The Greening of the Bretton Woods” (1996).

Filed under: Environmental Law, Guest Blogging, International Environmental Law, Public International Law | 2 Comments »

Guest post by Professor Chichilnisky

Posted on October 15, 2009 by Dominik Zimmermann

In celebration of the upcoming Blog Action Day on the topic of climate change, International Law Observer is glad to announce a guest post from Professor Graciela Chichilnisky, professor of Economics and in Mathematical Statistics of Columbia University.

Professor Chichilnisky has worked extensively in the Kyoto Protocol process, creating and designing the concept of the carbon market. She has worked closely with negotiators of the United Nations Framework Convention on Climate Change and functioned as a lead author of the Intergovernamental Panel on Climate Change, inter alia authoring the Protocol language that led to the creation of the carbon market.

Dr Chichilnisky is an active researcher and writes and speaks extensively on globalization and the global environment. She is the author of thirteen books and some 200 scientific articles. From her publications her recent book ‘Saving Kyoto’, in which she gives an overview of the history of global climate negotiations and explains why international cooperation between poor and rich nations has become critical, deserves to be especially highlighted.

We are glad that Professor Chichilnisky was able to join our effort to draw attention to the topic of climate change on the Blog Action Day.

Filed under: Guest Blogging, Public International Law | Leave a Comment »

Climate Change and Human Rights

Posted on October 15, 2009 by Ole W. Pedersen

An issue related to Innocent’s post on environmental rights and Michele’s on “climate refugees” is the question of to what extent does climate change affect human rights in general? This is a question which is undergoing a lot of scrutiny not least since the UN High Commissioner for Human Rights was, in 2008, charged with undertaking a study into the relationship between human rights and climate change by the Human Rights Council and since a group of Inuit citizens filed a petition before the Inter-American Commission of Human Rights, in 2005, alleging that the United States had violated a series of human rights by not taking steps to curb emission of greenhouse gasses (petition in full length available here).

While it is clear that climate change has the potential to severely impact on several human rights, such as, for example, the right to life or the right to property, and climate changes represents a threat to the enjoyment of such rights, it is not clear that climate change necessarily violates the said rights. This is down to a series of related problems of causation as well as the fact that most of the effects of climate change are, at least at this point, future events which human rights can do little to address. Moreover, prospective litigants will face serious problems proving that, as e.g. the Inuits tried, one particular act or omission attributable to State actor is linked to a specific incident or harm. This is, however, not the end of the link between human rights and climate change. Far from it. For instance, human rights law, especially under the ECHR, gives rise to a number of procedural obligations on the State, such as access to environmental information and judicial review, which may all be of relevance to climate change (see for instance Taşkin and others v. Turkey well as here). Moreover, these obligations are equally applicable to States when they seek to implement measures in an attempt to address climate change. A number of related questions remain though. For example, it may be called into question whether human rights as such have anything to add to the climate change debate. Proponents will argue that human rights can add a human face to a discussion which is often focused on technicalities and States thus putting forward a moral argument for addressing emissions. Another question is whether the “human rights community”, i.e. campaigners, lawyers and NGOs, are interested in taking on climate change as a problem when they already seem to have a full plate of cases to take. In other words, what are the strategic implications?

Clearly this is a problem which needs more research and thinking. For what it is worth, readers might find the following interesting if they would like to study the matter further. Prof. Knox, of Wake Forest Law School, has a really good piece coming out soon with Virginia Journal of International Law on the topic, which covers the various questions excellently and Edward Elgar is about to launch a new peer-reviewed journal dedicated to human rights and the environment (first issue to come out early next year) with the second issue dedicated to climate change and human rights (incidentally I will have a piece coming out in that issue on the topic).

Filed under: Environmental Law, Europeam Court of Human Rights, Human Rights, International Environmental Law | Leave a Comment »

The Copenhagen Climate Conference 2009 (COP-15)

Posted on October 15, 2009 by Dominik Zimmermann

Today is Blog Action Day, the annual event in which bloggers worldwide unite to draw attention to a particularly urgent topic. After last year’s topic of ‘poverty’, this year the organizers have chosen ‘climate change’ as the common subject. And what would be better suited for an international law blog to write about in support of this event than the upcoming United Nations Climate Change Conference in Copenhagen. So here is a short summary.

The Conference, which will take place between 7-18 December, will not only be the 15th Conference of the parties to the United Nations Framework Convention on Climate Change but also the 5th Meeting of the Parties to the Kyoto Protocol. What is the goal of the Conference? The roadmap established at the UN Climate Change Conference 2007 in Bali (including the so-called Bali Action Plan) laid down a course for a new negotiating process designed to tackle climate change, with the aim of completion by 2009. The overall goal therefore is to bring this negotiating process to an end, hopefully in the form of an ambitious global climate agreement for the period from 2012.

As to the substantive issues that presumably will be dealt the issues already mentioned in Bali will probably again be high on the agenda in Copenhagen. This includes: (I) Emission reduction (in Bali it was agreed that “deep cuts in global emissions will be required to achieve the ultimate objective of avoiding dangerous climate change” and that “a long-term global goal for emission reductions” was necessary); (II) Forests (in Bali pledges were made to consider “policy approaches and positive incentives” to reduce deforestation and conserve forest cover); (III) Adaptation (Bali called for enhanced co-operation to “support urgent implementation” of measures to protect poorer countries against climate change impacts); (IV) Technology Transfer (at the Bali conference it was decided that States would consider how to “remove obstacles to, and the provision of financial and other incentives for, scaling up” the transfer of clean energy technologies from industrialized States to the developing world).

The expectations on the Copenhagen Conference – and thus the media attention surrounding it – have been enormous. A sheer endless number of websites is drawing attention to the event (see e.g. sealthedeal2009.org;  http://www.hopenhagen.org/; http://uniteforclimate.org/) and thereby increases the pressure on the States participating in the event to really reach a conclusive agreement.

Filed under: Blogroll, Environmental Law | 1 Comment »

Right to a Healthy Environment

Posted on October 12, 2009 by innomawire

Professor Douglas Cassel’s commentary “Do we Have a Human Right to a Healthy Environment?” critique the existance of the right to a healthy environment in the international law discourse. The author argues that the matter has complex underlying legal challenges that have to be unmasked for it to be clearly comprehended.  He brings an interesting dimension regarding the relationship between human rights and environmental rights to the effect that the  ”protection of the environment is meant to protect the people.” Cassel further examines the existance of this right in the context of regional systems of human rights protection. Comparatively, he looks at the African Charter on Human and Peoples’ Rights and the Inter-American Treaty and concludes that “these have been more adventurous,expressly declaring a right to a sound environment.”  The commentary further notes that environmental rights are generally viewed as group or community rights under both treaties hence individuals have no locus standi to seek remedies for individual claims.

Filed under: Environmental Law, Human Rights, International Environmental Law, Regional Human Rights | Leave a Comment »

The Trafigura Settlement

Posted on October 9, 2009 by Jernej Černič

We have reported earlier about legal action of 31,000 Ivorians before the High Court in London against international trade company, Trafigura, deriving from toxic waste spill in Ivory Coast, which caused the death of a number of  people and the illness of thousands. This case now appears to be settled, even tough Greenpeace informs that it will continue legal proceedings aginst Trafigura. We highlight here some points from the Joint Final Settlement agreed between Leigh, Day & Co., who represented the victims, and Trafigura.

These independent experts are unable to identify a link between exposure to the chemicals released from the slops and deaths, miscarriages, still births, birth defects, loss of visual acuity or other serious and chronic injuries. Leigh Day and Co, in the light of the expert evidence, now acknowledge that the slops could at worst have caused a range of short term low level flu like symptoms and anxiety.From these investigations, it is also clear that there are many claims which havebeen made for symptoms, in some cases perhaps understandably, which are unconnected with any exposure to the slops.  In the light of the expert evidence, Leigh Day & Co withdraws the comments made on its website on 8 November 2006 and subsequently, which alleged, among other things, that the slops had caused a number of deaths and miscarriages. Trafigura and Leigh Day & Co have accordingly resolved the libel proceedings brought by Trafigura. Leigh Day & Co deny that any of their clients have made any deliberately false claims. In the light of assurances given to their senior leading counsel and in view of his advice, Leigh Day withdraw any allegation that there has been impropriety on the part of Trafigura or any of its legal advisors, (including Macfarlanes) in investigating the claims.

Filed under: Public International Law | 2 Comments »

The Will to Intervene Project

Posted on October 8, 2009 by innomawire

Driven by the perceived failures of the old democracies (in particular the USA and Canada) to obviate the commission of  genocide, crimes against humanity and other gross violations of human rights in different parts of the world during the twentieth and twenty first centuries, leading academics at the Montreal Institute for Genocide and Human Rights Studies at the University of Concordia commissioned the Will to Intervene (W2I) Project whose main thrust was “to understand how to operationalize the principles of the Report of the International Commission on Intervention and States Sovereignty on the Responsibility to Protect”. The Institute has published a report (Mobilising the Will to Intervene: Leadership and Action to Prevent Mass Atrocities). The report is a culmination of wide consultations and interviews with eminent persons in the US and Canada and its purpose is encapsulated in the preface as “to identify strategic and practical steps to raise the capacity of government officials, legislators, civil servants, NGOs, advocacy groups, journalists, and medial owners and managers to build the political will to prevent mass atrocities”.  The report is of practical relevance to all human rights advocates and also to the proponents of the R2P and it is hoped that the recommendations contained therein will go a long way in informing and devising strategies aimed at engaging governments across the world to reduce, eliminate and prevent the recurrence of all forms of gross violations of human rights including genocide.

Filed under: Human Rights, International Humanitarian Law, Responsibility to protect, international justice | 1 Comment »

International Law Weekend 2009

Posted on October 6, 2009 by Dominik Zimmermann

The American Branch of the International Law Association will hold its annual International Law Weekend, in conjunction with its 88th Annual Meeting, in New York from October 22-24, 2009. Registration is free for students, members of the American Branch, and cosponsoring organizations (including the ABA Section of International Law and the American Society of International Law); for others, the registration fee is $75.00. To register, visit www.ila-americanbranch.org.

The theme for the conference is “Challenges to Transnational Governance.” The plenary session for the conference and the opening reception will take place on Thursday, October 22, at the Association of the Bar of the City of New York, 42 West 44th Street in New York City. The opening session will focus on efforts to reform the United Nations Security Council, including the initiation of intergovernmental negotiations in March of this year. Confirmed participants include: the Deputy Permanent Representative of the Mission of the United States to the United Nations, Ambassador Alejandro D. Wolff; the Permanent Representative of the Mission of Sierra Leone to the United Nations, Ambassador Shekou M. Touray; and Professor Joseph E. Schwartzberg of the University of Minnesota. The panel’s moderator will be Professor Jose Alvarez of Columbia University Law School.

More information is available here.

[Thanks to Chinthana Konganda for drawing my attention to this]

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Israeli Supreme Court decision on the Wall in Jayyus: Another Assault on the ICJ

Posted on October 3, 2009 by Valentina Azarov

On 9 September 2009, the Israeli Supreme Court published its judgment in the case of HCJ 11344/03 Mayor of Jayyus et al. v. Commander of the Armed Forces in the West Bank et al. (available in Hebrew), where the route of the Separation Wall that Israel has been constructing since the end of the second intifada was challenged by the mayors of a number of villages in a southern region of the West Bank. Notably, the amount of land that has been appropriated is, compared to other regions in the West Bank, remarkable, making the effects of the Wall on the daily lives of the people of this region particularly egregious.

The judgment, handed down by Justice Beinisch, the President of the Court, commences by considering the status of protected persons in occupied territory under international humanitarian law and the obligations owed to them by the Israeli occupying forces. She notes that “protected persons are entitled to appropriate treatment” and it is the obligation of the military commander to take account of this obligation when making a decision on security related matters in ensuring the personal security of the occupying forces and the security of “everyone else present in the area” (para. 31). She confirms that, as previously decided, the considerations of the military commander include the security of the “Israelis who reside in the area” – by this she means the ’settlers’ that have been transferred into occupied territory in violation of international law, namely Art. 49 of the Fourth Geneva Convention. She proceeds to apply the provisions of the Fourth Geneva Convention for the protection of persons in occupied territory to settlers whose interests, according to the Court’s position, should be balanced with Israel’s obligations towards the local Palestinian population. The rationale adopted by the Court amounts to the distortion of international law for the purpose of providing a legal basis for the state’s actions (para. 32).

The Court went on to uphold that since the military commander is professionally qualified to make the appropriate balanced judgment when undertaking security measures, they “grant his position on this matter[, i.e. the decision to route the Wall,] great weight, and the one who asks to rebut it  carries a heavy [evidential] burden.” The “proportionality spectrum” is a “spectrum of possibilities” and “the choice amongst them is subject to the discretion of the authorised official body, the military commander” (para. 33). Not apart from this, the Court noted that the decision taken by the military commander in this regard is not political but one that concerns a “security-military” matter (para. 34).

The only consideration the Court gives to the illegality of the act of annexation of land that is generated by the construction of a Wall inside the occupied West Bank is as follows: “in our eyes it became apparent during the hearing on the petitions that the consideration with regard to the future expansion of the [settlement] Zofin-North – a consideration that is foreign to the purpose of the construction of the Wall – was part of the decision to route the Wall in a particular way.” Needless to say, the Court did not see a need to punish the State or the particular officials for this grave violation of international law.  Nevertheless, the Court upheld that the protection of the settlers is a valid consideration to take into account (para. 36). The Court also noted that “a lot of agricultural land was captured in order to build the existing route of the Wall…the State is not neglecting this violation of rights, but is convinced that this is a proportionate violation, which is necessary in light of security considerations” (para. 39). Thereby, the Court  is, in essence, rubber stamping the state’s grave breach of the provisions of the Fourth Geneva Convention, i.e. the construction of settlements and the vast appropriations of land.

It should be noted that the Court did not consider any of the international legal arguments that the petitioners invoked with regard to the illegality of the Wall itself or the settlements taken in by the route of the Wall resulting in the annexation of territory, a grave violation of international law. In fact, no provisions of international law were cited by the Court’s, apart from those relating to protected persons, which it then proceeded to apply erroneously. The lawless approach undertaken by the Court in this decision, like in many other cases on the route of the Wall, generates another direct assault on international humanitarian law and the unequivocal submissions made by the ICJ in the Advisory Opinion on the Separation Wall rendered by the World Court over five years ago (previously covered here).

In light of the judicial practice of the supreme judicial instance in Israel, the ongoing political battle for a ’settlement freeze’ (which would bring to a halt any further construction or expansion of settlements) advanced principally by Obama’s administration, is of little value when, so to speak, ‘the thief is allowed to keep what he has stolen so long as he promises not to steal any more’ (this phraseology was coined by Israeli human rights lawyer Michael Sfard in his lecture at the New American Foundation).

In its many years of judicial practice on the occupied Palestinian territories, the Israeli Supreme Court is today the only judicial instance available to Palestinians for obtaining a remedy for the injustices that are procured on a daily basis by the Israeli occupying power. National human rights litigation is not unproblematic (previously covered here), to say the very least. It has, when effective in gaining some kind of middle-ground remedy, such as the rerouting of the Wall in the case at hand, a counter-productive effect on the overall scheme of the struggle of the Palestinian people for the exercise of their inherent right to self-determination, a right that the Court has virtually never upheld or referenced in any context whatsoever.

Finally, it is also interesting to consider such judicial practice, where the Court accepts the state’s position without looking for an objective expert’s opinion to confirm the facts, or at the very least access a third perspective on the situation on the ground, in light of the internationally accepted standards in this regard. A relatively recent report of the Human Rights and Social Justice Research Institute at the London Metropolitan University on ‘INTERNATIONAL HUMAN RIGHTS & FACT-FINDING: An analysis of the fact-finding missions conducted by the European Commission and Court of Human Rights’, published in February 2009, presents a thorough and useful analysis of the practice on the European level whilst drawing upon some general principles in the field of fact-finding by judicial bodies.

Filed under: Human Rights, International Court of Justice, International Humanitarian Law, International and national law, Middle East Crisis, Public International Law | Leave a Comment »

Hugo Grotius’ ‘Mare Liberum’ – 400th anniversary

Posted on October 3, 2009 by Dominik Zimmermann

There are few individuals that have shaped international law as much as Hugo Grotius, the Dutch jurist, diplomat and philosopher, theologian and poet. His works include a comparison of constitutions (Parallelon rerumpublicarum), commentary on the law of prize and booty, a thesis on the free seas (Mare Liberum), a thesis on the law of war and peace (De jure belli ac pacis) and commentaries on both the old and new testament (Annotationes in Vetus Testamentum and Annotationes in Novum Testamentum). Whereas the work on the law of war and peace – with the suggestion of the theory of just war and the division between jus ad bellum and jus in bello – is the one for which he is most known, the Mare Liberum for numerous reasons is just as remarkable as any of his other works. Written when Grotius was merely 26 (!) years of age, Mare Liberum was not only an important work from a legal perspective but it was also a thesis with an important political statement.

In 1604 Grotius was asked by the Dutch East India Company to draft a defence of a seizure of a Portuguese carrack by a captain belonging to the Company. At this time, the Dutch were at war with both Spain and Portugal (the Eighty Years’ War) and it was a conflict that was to a large extent fought at sea. The thesis Grotius produced between 1604-1605 (De Indis) was longer and more detailed than anybody expected and dealt with numerous issues that later were going to form the foundation for Grotius’ most famous works. One chapter in fact later became the influential pamphlet Mare Liberum.

In this work Grotius described the principle that the sea was an international territory and that all nations were free to use it for seafaring trade.

My intention is to demonstrate briefly and clearly that the Dutch—that is to say, the subjects of the United Netherlands—have the right to sail to the East Indies, as they are now doing, and to engage in trade with the people there. I shall base my argument on the following most specific and unimpeachable axiom of the Law of Nations, called a primary rule or first principle, the spirit of which is self-evident and immutable, to wit: Every nation is free to travel to every other nation, and to trade with it.

The principle inter alia provided the basis for the breaking up of the trade monopolies that had existed so far. However, motivated by the political realities of the time, numerous counter arguments were put forward in the years following the publication of Mare Liberum, among them the thesis ‘An Abridgement of All Sea-Lawes’ (1613) by William Welwod (a Scottish jurist) and ‘Mare clausum’ (1635) by John Selden.

UNCLOSToday the law of the sea is primarily governed by the UN Convention on the Law of the Sea (UNCLOS; today signed by 159 parties [158 States and the EC]), which to a large extent is a codification of the customary international law of the sea. Whereas the UNCLOS does incorporate the idea of a specified belt of water extending from a nation’s coastline (the idea of a country’s territorial waters, which form part of that State’s sovereign territory, is ultimately based on thoughts by John Seldon), beyond this coastline the waters are considered international waters that are free to all nations, but belonging to none of them – just as Grotius had suggested 400 years ago.

The whole Mare Liberum (with an introductory note by James Brown Scott) is available online. In celebration of the 400th anniversary of the publication of Mare Liberum various institutes are organizing events in The Hague, check out the organizers’ website here.

Filed under: Law of the sea, Observances, Public International Law | 1 Comment »

New UK Supreme Court

Posted on October 1, 2009 by Ole W. Pedersen

And so it finally happened. After a lengthy period of preparation, the Supreme Court of the United Kingdom starts proceedings today. The new UK Supreme Court, which has come about as a result of the 2005 Constitutional Reform Act, will hear its first cases this week in newly refurbished rooms in the former Middlesex Guildhall, on Parliament Square. Although the process under which the Supreme Court was created has been criticised, the arrival of the new Court is likely to be met with approval as the previous structure of having the UK’s highest appellate court sitting within parliament would to many seem a constitutional anomaly. Currently, the Court has 11 Justices (which is a new term as well) with one vacancy remaining. Whether one believes that the creation of the new Court will lead to further judicial activism or better protection of democratic principles, it will be very interesting to follow the Court’s work in the years to come.

Official website of the Court here and lengthy news reporting from the Times here.

Filed under: Constitutional Law, International Courts, Mixed/Hybrid Courts, States | Leave a Comment »

From “climate refugees” to “survival migrants”: can we return them to their country of origin?

Posted on September 30, 2009 by michelemorel

No week passes without a newspaper article, television news or a documentary describing the plight of “climate refugees”. In this post, I would like to explain why, in my opinion, “survival migrants” is a more adequate term than “climate refugees” from a humanitarian and legal protection perspective. Secondly, I would like to examine to what extent “survival migrants” who have crossed an internationally-recognised border can legally be sent back to their country of origin or habitual residence.

The frequently heard term “climate refugees” is legally incorrect. To be a refugee in the sense of Article 1 of the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention) it is required that a person fears persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Although it is possible that a person fleeing climate-related events also fears persecution on one of the five grounds – for example, when a government intentionally refuses to offer relief to a minority group after a cyclone has affected the country – this is rather the exception than the rule. I therefore argue that it is preferable to use the term “migrant” instead of “refugee”.

Also the word “climate” I prefer not to use. While this term might be useful for the purpose of advocating for climate change mitigation and adaptation, thus for the prevention of “climate refugees”, it is not an adequate term as regards humanitarian and legal protection questions. People usually flee for a complex mix of reasons and therefore it is in most cases very difficult if not impossible to isolate one factor, for example the climate factor, as the only cause of migration. There is no clear causal link between climate change and migration. Other elements that are intertwined with the climate factor are environmental problems other than climate change and socio-economic elements: air and water pollution, development projects, industrial accidents, deforestation, population pressure, lack of income, collapsing economies and physical insecurity are some examples.

Given this multi-causality of migration, I abandon the term “climate refugees” or “climate migrants” and exchange it for the recently-developed concept of “survival migrants”  by Alexander Betts (see A. Betts and E. Kaytaz, ‘National and International Responses to the Zimbabwean Exodus: Implications for the Refugee Protection Regime’ (2009) New Issues in Refugee Research, Research Paper No. 175, UNHCR, Geneva). Survival migrants are defined as persons who are outside their country of origin as a result of an existential threat for which they have no access to a domestic remedy. The reasons for their flight have mainly been a combination of state fragility, livelihood failure and environmental disaster. Stated differently, a combination of social, economic and environmental factors. Survival migrants fall outside the traditional dichotomy of people fleeing persecution or conflict on the one hand, and voluntary economic migrants on the other.

The international legal protection framework for survival migrants is, contrary to the one for people fleeing persecution or conflict, very weak. There is no single migration-related international instrument that clearly offers protection in a foreign country. International human rights law, on the other hand, applies to each person without discrimination and thus also to survival migrants.

It is within this framework of international human rights law that I would like to examine to what extent the right to be protected against forced return to the country of origin or habitual residence applies to survival migrants. This right is known as the non-refoulement principle: no State is allowed to return, expel or extradite a person in any manner whatsoever to another State where that person risks being subjected to serious human rights violations.

The core question that arises here is what is understood by “serious human rights violations”. Because there is no univocal prohibition of refoulement in international law – the concept has been developed under various treaties – it is necessary to examine the scope of the principle in each treaty separately. 

The non-refoulement principle in both the 1951 Refugee Convention and the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), respectively stipulated in Article 33 and Article 3, is not helpful for survival migrants given the requirements of respectively the risk of persecution on one of the five grounds and the strong link between the human actor inflicting the act of torture and the State. With regard to the International Covenant on Civil and Political Rights (ICCPR), although the Human Rights Committee – the body in charge of implementing the ICCPR – has interpreted the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (Article 7) as implying the non-refoulement principle, there are no cases of survival migration where the Human Rights Committee has acknowledged a violation of Article 7.

As regards the 1950 European Convention on Human Rights (ECHR), Article 3 – stipulating the prohibition of torture and other inhuman or degrading treatment or punishment – implies, according to case law of the European Court of Human Rights (the Court), the principle of non-refoulement (see Soering v. the United Kingdom (1989) 11 EHRR 439, 91; Cruz Varas v. Sweden (1991) 14 EHRR 1, 70; Salah Sheekh v. the Netherlands (2007) 45 EHRR 50, 135). Although in most of the cases in which the Court has applied Article 3 the risk of being subjected to a proscribed form of treatment emanates from intentionally inflicted acts of public officials or non-State actors, we can observe that the Court does not exclude the application of Article 3 in other contexts. In other words, the source of the risk of proscribed treatment in Article 3 is in principle irrelevant and thus the harm may emanate from a situation instead of human activity. Two relevant cases in this context are D v. the United Kingdom ((1997) 24 EHRR 423) and N v. the United Kingdom ((2008) 47 EHRR 885). While in the first case, the Court decided that returning the applicant to St. Kitts would amount to a violation of Article 3, referring to the very exceptional circumstances of the case (the applicant suffered from HIV/AIDS and was in the advanced stage of this terminal and incurable illness), in the second case (where the applicant also suffered HIV/AIDS) the Court decided that expulsion would not constitute a breach of Article 3. In other words, except for very exceptional situations, the Court is reluctant to include socio-economic rights within the scope of Article 3. 

As regards survival migrants, finding themselves on the territory of a State Party to the ECHR, it seems unlikely – though not necessarily excluded – that their expulsion to a country where they would face life threatening socio-economic and environmental conditions, in the absence of “very exceptional circumstances” with regard to a severe illness, would in the future be considered by the Court as a violation of Article 3.

Filed under: Environmental Law, Guest Blogging, Human Rights, International Environmental Law, International Humanitarian Law | Leave a Comment »

Guest Writer Michèle Morel

Posted on September 30, 2009 by Ole W. Pedersen

International Law Observer is pleased to welcome Michèle Morel as guest contributor.  Michèle is currently undertaking PhD studies at Ghent University, Belgium, Faculty of Law, Department of Public International Law, into the topic of “environmental migration” (more specifically the interplay between International Human Rights Law and Refugee Law).  Prior to commencing her PhD work, Michèle studied at both University of Ghent and University of Nottingham.  Her research interests are international human rights law and international refugee and migration Law. Michèle’s first contribution deals with the very topical and increasingly important issue of so-called “climate-refugees”.

Filed under: Environmental Law, Guest Blogging, Human Rights | Leave a Comment »

Unintended Consequences

Posted on September 29, 2009 by derekfincham

I’d like to take this post and discuss the problem of unintended consequences.  It is a problem which plagues the rules governing antiquities and stolen art, but also international law generally.  To begin we can take a few prominent examples. 

First, the United States has waged a decades-long “War on Drugs”, in which it has exported arms and military know-how to nations to its South.  It has enacted stiffer penalties for the use of drugs, and made it a prominent part of its foreign policy.  Whatever we think of the illegal drug trade, I think anyone can agree that many of these efforts are ill-advised or even serve to increase the use of these substances. 

The same can perhaps be said of some international law, or perhaps even the efforts of the United Nations.  When a goal is set by more than one person—and even though all those individuals are eager to pursue one goal—the collective can sometimes have great difficulty producing the result everyone seemingly wishes to bring about.  The Onion satirizes this problem, imagining what would happen if the U.N. were to acquire a nuclear weapon: 

“Tremble before the awesome might of this cooperative assembly of appointed representatives,” said Ban, boldly holding a stack of diplomatic resolutions in his hand. “At last, when the United Nations calls for the development of more sustainable agricultural practices, the world at large will listen.”

Added Ban, “We will no longer be ignored.”

That of course is satire, but I’ve tried to argue something along these lines with respect to the art trade. 

Many of the rules which attempt to protect art and antiquities from looting and theft only make the problems more acute.  Cultural heritage is a precious and limited resource. The transfer of these objects typically involves highly educated, skilled individuals who are trained and are expected to know the laws regarding the import and export of cultural items throughout the world. No presumption as to good faith should be tolerated any longer.  Rather, increased scrutiny of the antiquities trade is needed in which objective evidence of a purchaser’s investigation of the legitimate title of the object in question must be the bare minimum for the acquisition of good faith in a given transfer.  The question though, is why can’t the international community come together to resolve these difficulties?

The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property discusses the good faith acquisition of objects specifically.  Article 7(b) (ii) states that the good faith purchaser should be compensated when she must return stolen or illegally exported cultural property. 

The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (“UNIDROIT Convention”) was an ambitious effort aimed at harmonizing the private laws of various states so as to reduce the harmful effects occur when laws conflict.  Under the UNIDROIT Convention, good faith acquirers of stolen or illegally exported cultural property are entitled to fair and reasonable compensation if they lose title to the original owner.  Many of the relevant provisions strike an effective compromise.  Giving sole title to either the good-faith purchaser or the original owner is a crude legal remedy, especially when one considers that many of these disputes span decades, require evidence and testimony that is difficult and expensive to procure, and implicate a number of legal systems.  By compensating the diligent, the Convention is rewarding and promoting thorough provenance research.

As early as 1972, American museums began voluntarily creating new ethical guidelines to restrict acquisition policies in light of the 1970 UNESCO Convention.  A number of reforms have been proposed for the acquisition of antiquities.  Clemency Coggins has proposed that museums should cease all acquisitions of antiquities for decades.  In fact, by failing to establish guidelines that respect the history of an object and its deeper value to heritage and archaeology, museums may be breaching their fiduciary obligations to the public.  Others have speculated that rigorous due diligence procedures would encourage nations of origin to “pillage back” from museums of the world.  What can international law do?  What should it do?  What role do scholars play in all this?  How do policymakers craft rules which accommodate the wide variety of solutions to these problems, while also actually tackling the problems?  Part of the difficulty will always be many of these treaties and conventions are relegated to the aspirational.  Nations enact them, but often don’t enforce them with any of the zeal necessary to really tackle the problem. 

Filed under: Guest Blogging, International and national law | Leave a Comment »

Blog Action Day 2009 coming up

Posted on September 25, 2009 by Dominik Zimmermann

As in the previous years International Law Observer is proud to support this year’s Blog Action Day coming up on 15 October. Blog Action Day is an annual event that unites the world’s bloggers in posting about the same issue on the same day. The aim is to raise awareness and trigger a global discussion and Blog Action Day 2009 promises to be the largest-ever social change event on the web. This year the common topic is climate change. Here are the reasons for choosing this topic given by the organizers:

Climate change affects us all and it threatens more than the environment. It threatens to cause famine, flooding, war, and millions of refugees. Given the urgency of the issue of climate change and the upcoming international climate negotiations in Copenhagen this December, we think the blogosphere has the unique opportunity to mobilize millions of people around expressing support for finding a sustainable solution to the climate crisis.

So on 15 October International Law Observer will bring you posts dealing with the issue of climate change from an international law perspective. But we would also like to especially emphasis our standing invitation to scholars around the world to appear as guest bloggers on that day. If you e.g. are engaged with any research on the intersection between international law and environmental issues, you are welcome to support our effort (contact us here).

A trailer on the Blog Action Day 2009 is in this week’s ‘Clip of the Week’.

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Debate on International Law: Its Importance and Place in Curricula

Posted on September 24, 2009 by Gentian Zyberi

There have been a few interesting posts on our blog and elsewhere on two distinct, but related issues. That is the importance of international law and its place in the university curricula.

First I just wanted to expand a little on what my fellow co-blogger Ole W. Pedersen wrote in the last post on 18 September, drawing attention to an article by Posner entitled ‘Think Again: International Law’. Indeed, Posner’s sobering if not at times cynical remarks, force one to critically examine certain issues which oftentimes are usually and easily taken for granted. After listing certain highlights from Bush’s activity as the US president, Posner goes on to condone them, while at the same time rebuking Obama for not having done much to change the course. The examples used there are to some extent misleading. There is a huge difference between the unilateral modus operandi of GWB and his undermining language vis-a-vis some important institutional elements of the international system and the cooperative and supportive approach employed by Obama.

Posner posits that international law is not the best way to protect human rights. It is commonly agreed that human rights are better protected and primarily responsibility for their protection remains with the respective States. But it makes no sense to dismiss international law because the Genocide Convention has not prevented genocide, or that the  Convention against Torture has not prevented torture. With this line or reasoning I guess Posner will also propose to abolish criminal laws in the US or at least the death penalty, since that has had little or no impact on preventing murder?!

Another interesting topic Posner deals with is whether Europeans care more about international law than Americans do? First one wonders what is the author of this article talking about? Is it the European States? Is it European citizens? European institutions? All of them? And what does the word ‘Americans’ include? The main point to be made here is that regardless of whether Europeans (whatever that includes) care more about international law than Americans (whatever that includes), it appears that European States try slightly harder to operate within the framework of international law and that works better in convincing other States to do so. The question of reasons for that difference deserves its own post, which probably a political scientist would be better placed to write.

International law is a means to an end; and that end is to facilitate international intercourse in a way which preserves international peace and security, promotes sustainable development and upholds fundamental human rights.  In today’s interdependent and interconnected world, this ‘global village’, knowing at least some basics about international law is helpful for any student of law. So, yes, a number of international law courses should have their place in the curricula of the universities. Among others higher education is about widening one’s horizon beyond one’s own national borders.  It is not hepful though to put international law courses in the first year. As it is difficult to start building a house from the roof, it is difficult to study international law or teach it to a student that has not yet had a course on constitutional law, criminal law or civil law. Engaging in an in-depth discussion on an international criminal law issue with someone that has not yet had the opportunity to study domestic criminal law would be difficult, right?

Filed under: Public International Law, Scholarship, University | Leave a Comment »

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