Cambodia Tribunal Monitor

Posted on November 27, 2009 by Dominik Zimmermann

The Extraordinary Chambers in the Courts of Cambodia this week heard the closing arguments in the trial of Kaing Guek Eav (alias Duch). For all those interested in learning more about the activities of the Chambers (past and present), have a look at the website of the Cambodia Tribunal Monitor, which is a consortium of academic, philanthropic and non-profit organizations committed to providing public access to the tribunal and open discussion throughout the judicial process.

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4th Biennial Conference of the ESIL

Posted on November 26, 2009 by Dominik Zimmermann

After the success of last year’s biennial meeting of the European Society of International Law in Heidelberg, Germany, the next event is being organized by the Lauterpacht Centre for International Law, University of Cambridge and will take place on 2-4 September 2010. The conference theme is: International Law 1989-2010: A Performance Appraisal. Here is a short description of what is hidden behind this title.

The role of international law and international institutions during the Cold War (1949-1989) is generally recognised – the arrangements for Germany, control of nuclear proliferation, decolonization, the development of human rights standards and mechanisms, the law of the sea, the beginnings of environmental regulation, the Helsinki process… But how have international law and international institutions fared in the 21 years since the fall of the Berlin Wall?

The 4th ESIL Biennial Conference appraises their performance. We will look at both theory and practice, at particular sectors and overall at the “Gross International Product” – such as they have been, might have been and might still be. Of course, neither law nor institutions act of their own motion – people act through or in spite of them. The questions may then be asked – how have we done as international lawyers, and what have others made of our work? What imaginative possibilities remain?

Since yesterday the call for papers for the conference is open and can be found here.

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Clip of the week on piracy and international law

Posted on November 23, 2009 by Dominik Zimmermann

This week’s video clip is an interesting summary of how international law applies to the fight against piracy. The clip shows Professor John Norton Moore, director at the Center for National Security Law at the University of Virginia School of Law, talking inter alia about the applicable norms and what could be done on the level of international law to confront piracy. You can access the archive of our clips of the week here.

Filed under: Clip of the Week, Law of the sea | 1 Comment »

The Report of the Special Rapporteur on the Independence of Judges and Lawyers

Posted on November 23, 2009 by Dominik Zimmermann

1. Introduction

The subject of the following article is the Report of the Special Rapporteur on the independence of judges and lawyers (‘Report’) issued on 24 March 2009. The report was endorsed by the Human Rights Council (‘HRC’) during its 12th session in October 2009. The focus of the following statements will be on the parameters identified by the Rapporteur as being necessary to effectively guarantee the independence of judges. Afore the mandate and the nature of the principle of judicial independence will be shortly highlighted. Read more »

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The Right to Development and Intellectual Property

Posted on November 20, 2009 by innomawire

Since the Senegalese jurist Keba M’baye first advanced it in 1972, the idea of a ”right to development” has been the focus of an extensive but largely theoretical debate. Jurists from the South enumerated the possible subjects and objects of this right while jurists from the North questioned whether it existed at all. However, the adoption by the United Nations General Assembly of a Declaration on the Right to Development (DR2D) did helped to resolve the differences and also to narrow the divide although some argue that on the contrary, the artfully vague text of the DR2D attracted new jurisprudential speculations. However, these arguments are beyond the scope of this short article whose main objective in essence is to underscore that the right to development (R2D) has found a new lease of life within the context of intellectual property rights especially within the framework of the World Intellectual Property Organisation (WIPO).  

The World Intellectual Property Organisation Development Agenda (WIPO DA) is a landmark intitiative to ensure that Intellectual Property Rights (IPRs) are addressed within the broader context of economic, social development and the public interest. The WIPO DA is therefore one of the important, if not arguably, the most important global initiative to move forward the R2D especially within the context of the implementation of the forty five recommendations of the Development Agenda particularly the one on technology transfer. The centrality of technological transfer in development processes cannot be overemphasised as it plays a pivotal role in all the facets of human life from health security to food security and in general to human security. It can thereforebe gleaned that intellectual property rights are important tools that can be harnessed for the realisation of economic social and cultural rights. In this regard it is imperative to take note and understand the centrality of article 7 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)which underlines that: the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights ad obligations.

From this perspective, the implemntation of the WIPO DA has enormous potential for advancing the implementation of the right to development which was proclaimed by the United Nations in 1986 under UN GA Resolution 41/128. However, this connection remains relatively unknown. The WIPO DA implementation process is not closely followed by the human rights community and the relavance of the R2D framework is not often well understood in the intellectual property (IP) community.

It is therefore important to find ways of how a human rights based aproach can be effectively used to ensure an effective implementation of the WIPO Development Agenda. Recommendation 35 of the WIPO DA requests WIPO ”to undertake, upon request of Member States, new studies to assess the economic social and cultural impact of the use of intellectual property system in these states”. At the First Session of the Committee on Development and Intellectual Property (CDIP)- a WIPO Committee in charge of the WIPO DA- the Office of the High Commissioner for Human Rights (OHCHR) encouragedMember States and the Committee to consider the use of human rights impact assessment in developing a work programme for implementation of the recommendation bearing in mind, the internationally rcognised human rights in the economic social and cultural fields. Yet not much has been done since then to heed this call.

Achieving greater coherence to bridge this gap, in the context of the wider nexus between intellectual property and human rights, therefore requires a sustained effort of dialogue, information and policy analysis and research. It is in this context that the Right to Development, arguably the overarching embodiment upon which all other rights can be achieved, can be attained for the benefit of all peoples of the earth.

Filed under: Human Rights, Law of Treaties, United Nations, World Trade Organization | Leave a Comment »

Climate Change Talks: Road to Copenhagen

Posted on November 17, 2009 by webmastercontact
The following is a guest post by Jennifer Kelleher, LLB Law with European Studies (German and History), LLM in Comparative and European Laws. Jennifer previously interned at the Office of the Co-Investigating Judges in Cambodia and is currently working with the International Council of Environmental Law on Arctic Law and Policy.

Next month, 191 countries will come together in Copenhagen under the auspices of the UNFCCC (United Nations Framework Convention on Climate Change) to discuss climate change, global warming and the possibility of a legally binding treaty.  With under a month to go and certain governments still unclear about what position they will take, is there still a possibility of a binding legal treaty to succeed the Kyoto Protocol and govern global warming and climate change successfully?

There has been optimism and pessimism in equal measure.  The United Nations secretary general, Ban Ki-moon, has shown confidence that world governments will be able to come to an agreement.  EU Council President Carl Bildt said that his climate change talks with the Indian government in New Delhi, with President Barrack Obama in the United States and with Russian leaders “indicated significantly that they had moved (in) the right direction, toward compromise, in the upcoming Copenhagen summit”.  Chinese Foreign Minister Yang Jiechi has spoken publicly about reaching a “fair and reasonable” outcome.  Jairam Ramesh, Minister for the Environment in India, has said that India is ready to discuss carbon emission reduction targets at Copenhagen.

At the other end of the spectrum, German Chancellor Angela Merkel has urged the United States and China to show their hands, saying that contributions from both are paramount and without their attendance, she may not even attend the meeting.  The UK government has all but resigned hope for a legal treaty, with a spokesperson for the Department of Energy and Climate Change hoping now for a politically binding agreement.  At the Asia-Pacific Economic Cooperation (APEC) meeting in Singapore over the weekend, Obama ceded that a binding treaty in Copenhagen would be out of the question opting instead for a political agreement with no decisions likely to be made on emissions targets and financing.

Scientific data currently shows how 50 billion metric tonnes of carbon dioxide enters the atmosphere annually from industry, power generation, transport and deforestation.  According to the Intergovernmental Panel on Climate Change, an aggregate emission reduction by industrialised countries of between minus 25% and 40% over 1990 levels would be required by 2020 in order to ward off the worst effects of climate change.  Global emissions need to fall by at least 50% by 2050.  Even under this scenario, there would be an only a 50% chance of avoiding the most catastrophic consequences.  There is a widespread consensus that global warming is urgent and binding action is timely.  Impetus is placed on this conference more than others as policy makers are now working in the shadow of the 2012 Kyoto deadline.  So what are the complications to signing a treaty?

Two issues stand in the way.  Firstly, cutting emissions is proving a sticking point amongst the major players, namely India, China and the U.S.  China hopes to follow a similar legal treaty as was laid out by the Kyoto Protocol meaning that rich “Annex I” countries would take the initiative when it comes to reducing CO2 emissions.  Poorer, developing nations such as China and India would not be obliged to set their own mandatory targets until 2020 as they do not bear the same historic responsibility for climate change that developing nations do. However, China and India are now amongst the world’s largest producers of carbon dioxide, so to the U.S. a legal treaty adopting the measures of Kyoto would be inequitable.  Crucially however, the Obama Administration must also show their support to even moderately cut emissions and commit to a deadline.  UNFCCC Executive Secretary Yvo de Boer has stressed the urgency for the U.S. to announce a clear mid-term emissions target.  To date, the U.S. has not shown any concrete action on cutting their emissions and Bush rejected the binding commitments of Kyoto insisting that capping greenhouse emissions on such a large industrialized nation would ‘hurt jobs’ and was ‘bad policy’.  A bill that would for the first time set limits on greenhouse gases is currently stalled in the Senate.  John Kerry, who helped to author the climate bill, concedes that it will not reach the Senate floor until next spring when even then 60 out of the 100 Senators will be needed to endorse it.  Obama simply could not risk making America’s international promises before they are made at home.  It leads to the question whether domestic U.S. policy can halt international action.  

Secondly, cutting carbon is an expensive lengthy process, with a financial scheme needed for developing countries to make the transition to a low carbon economy.  With the world emerging from a recession, climate change may not prove top of any governments’ financial agenda. Much of the legal infrastructure of the protocol is based on the principle, including the clean development mechanism, which allows developed countries to meet their CO2 targets by investing in clean projects in the developing world.  The G20 Summit held last week at St. Andrews, UK provided an opportunity to discuss and fine-tune a budget for a potentially binding legal treaty.  Finance ministers failed to reach any kind of concrete conclusion.  There, U.K. Chancellor Alistair Darling urged those in attendance to treat climate change with the same urgency as the world economic recession.  Aligning with the sceptics, Dr. Richard Dixon of WWF said “The G20 Finance Ministers meeting turned out to be a mostly irrelevant sideshow on the way to the talks in Copenhagen in a months’ time…If we are to keep the planet below the danger threshold of a 2ºC temperature rise, the rich nations of the world are going to have to help developing countries follow a low-carbon development path and help them cope with the impacts of current and future climate change. We wanted to see solid proposals on how the money would be raised, managed and distributed and an indication of how soon the countries most vulnerable to climate change will receive assistance. The G20 has failed to deliver and the real work will now have to be done at Copenhagen.” 

Amongst the negotiators next month are those countries belonging to the Alliance of Small Island States (AOSIS) many of whom are low lying developing countries.  Leon Charles, chair of the AOSIS indicated the dangers for those islands, “2ºC is really not a safe level for small island states.  For many of them it would be like a death sentence in the long run.”  Members of the Least Developed Countries (LDC’s) that includes 33 African States will also attend.  Real effects of global warming already being felt in those countries range from sea level rise in Senegal to glaciers disappearing in the Rwenzori Mountains in Uganda.  Other impacted effects due to more frequent droughts include food shortages, malnutrition, and famine.  Lack of clean water and arable land can mean environmental refugees that in turn can lead to internal conflicts over water and land between different ethnic groups.  A group of 11 countries calling themselves V11 urge larger nations such as the U.S. and China to attend Copenhagen.  Bangladesh, Barbados, Bhutan, Ghana, Kenya, Kiribati, the Maldives, Nepal, Rwanda, Tanzania and Vietnam met in the Maldives and urged all countries to “redouble their efforts at reaching a binding, ambitious fair and effective agreement” in Copenhagen. 

Despite the missed opportunity for signing a new legal treaty in 3 weeks time, there may be sense and sensibility in delaying a legal treaty for another 12 months. The thinking behind a 2009 deadline was to set the bar before the expiration of Kyoto in 2012, as was pledged by participants in Bali, Indonesia two years ago.  However, the UNFCCC meeting at Copenhagen is an annual event and world leaders will meet again next year in Mexico or Germany. 

WWF has offered an ideal template for the deal saying that “it should include ambitious emission reduction targets from industrialized countries, recognition and support for developing country actions, commitment to scaled up climate finance especially for adaptation, and a new institutional and governance arrangement under the guidance of the UN.”

This template, if to be used, and to be effective, could possibly be achieved with more time to hammer out the important finer details. The G20 Finance Ministers remain split over how much money it should offer to developing countries as climate aid and whether this should come on top of existing aid budgets.  There is also the continuing dispute over what format a new deal should take, with the U.S. insisting that Kyoto be scrapped, angering China and India.  A domestic U.S. cap on emissions would surely invigorate international negotiations.  A global legal framework needs to work for everybody from Antigua to Ethiopia to the United States.  It must be aspirational but likewise practical implementation is the name of the game.  Perhaps, for now, a politically binding deal including a strict deadline to agree upon carbon emission reduction targets and detailed financial schemes would be more beneficial.  If not, Copenhagen risks becoming another expensive, bureaucratic talking shop.

The United Nations Conference on Climate Change will take place between 7th and 19th December.

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

International Law Association Conference 2010

Posted on November 12, 2009 by Dominik Zimmermann

Next years annual conference of the International Law Association will be hosted by the Netherlands Society for International Law, which at the same time celebrates its 100th anniversary. So far little information is available on the conference itself. The conference website merely circumscribes the overarching topic with ‘Peace, Justice and International Law’. Online registration will be possible starting in January.

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104th annual meeting of the American Society of International Law

Posted on November 12, 2009 by Dominik Zimmermann

The ASIL’s 104th Annual Meeting will be held March 24-27, 2010. The theme is ‘International Law in a Time of Change’ (am I the only one who sees some influence of Obamania in the topic?). The goal of the meeting is to ‘present a broad range of perspectives on the remaking of international law through new modes of lawmaking, new methods of global governance, new actors engaging international and transnational problems, and new substantive rules to address evolving and complex problems’.

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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 | 3 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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