Interesting videos from recent conferences and events of The American Society of International Law.
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Category Archives: International Law
Kiobel v. Royal Dutch Petroleum : SCOTUSblog
Kiobel has been decided. The scope for using the Alien Tort Statute to bring human rights claims is now more limited.
The opinion: http://www.supremecourt.gov/opinions/12pdf/10-1491_8n59.pdf
Commentary:
- Scotus:Kiobel v. Royal Dutch Petroleum : SCOTUSblog.
- Opinio Juris has a range of responses.
The ICC’s impacts
There is an interesting discussion at the Monkey Cage on the impacts of the ICC. This should interest some of my International Law and Africa in World Politics students.
“How is the ICC supposed to work?” (James Fearon)
To me it looks like a well-intentioned but not fully thought out institutional experiment that will tend to be used primarily as a way to make rich countries feel better about cases whether they aren’t willing to intervene, while the institution itself sometimes has consequences that contradict its avowed purpose.
“The ICC, Deterrence, and Amnesty” (Erik Voeten)
My own tentative view is that the ICC likely has little meaningful effect on deterring or encouraging the worst forms of human rights abuses but may have a marginally positive effect at reducing abuses in countries where “mid-level” human rights abuses occur; not unlike the international human rights regime more generally.
Global Elections: the race to be the next leader of the WTO
After 8 years in office, Pascal Lamy, the long-standing, cool-headed leader of the World Trade Organization will step down. Lamy (France, and former EC Commissioner for Trade) was the fifth Director-General of the WTO. Past leaders included Supachai Panitchpakdi (2002-2005, Thailand), Mike Moore (1999-2002, New Zealand), Renato Ruggiero (1995-1999, Italy) and Peter Sutherland (1993-1995, Ireland, also the last leader of the GATT). (WTO)
Lamy has presided over the WTO during some difficult times. Most notably, he has repeatedly tried–and failed–to revive the Doha round of trade talks. This has not been his fault, the D-G has limited power to impact members’ behaviors. And one could say that he has succeeded in fending off the complete death of the negotiations. However, one can wonder whether a fresh face might help revive talks.
Who is running for office?
According to Reuters, we only have two names at the moment (Reuters). Formal nominations will be made in December
The African Candidate
It is common for regional blocks to put forward their own candidates and the African Union may have the clearers mechanisms for doing this. Several potential African candidates have been mentioned. Nigeria’s Finance Minister, Ngozi Okonjo-Iweala, who also was an important candidate for the World Bank’s top job earlier this year, has reportedly expressed no interest in running for the WTO position (PeaceFMOnline). Nigeria’s current trade minister, Olusegun Aganga, has also been mentioned. Another possibility that has been mentioned is South Africa Trade Minister Rob Davies (Reuters). But apparently the AU has decided it will be none of the above. There are a number of reports stating that the African Union has decided that Ghana’s former trade minister, Alan Kyremanten, should hold the post (Ghana Joy Online; AfricaNews.com). Kyerematen currently is the trade advisor at the UN Economic Commission for Africa and head of the African Trade Policy Centre. (thisafrica.com). As Reuters reports, this was a contentious decision. However, if he can get all of Africa’s WTO members to back him, then that would be (a) the first time all of them supported the same candidate and (b) a significant portion of the WTO’s membership, which could go a long way towards getting him elected to the job.
New Zealand Again?
Another likely candidate is New Zealand’s trade minister Tim Groser. However, it has barely been a decade since someone from New Zealand held the post, making his chances unlikely (The New Zealand Herald).
Other possibilities
Reuters mentions a number of possible candidate from Mexico and Costa Rica, with some broader speculation about Brazil’s Ambassador to the WTO, Roberto Azevedo, as a possible Latin American choice.
Bottom Line
It is still way too early to tell what will happen in this competition for the WTO’s top job. But it is clear that the game is afoot.
Africa Notes: Charles Taylor, Guilty!
The Special Court of Sierra Leone found Charles Taylor Guilty. Here is the summary of the judgment. As it states, he was found guilty of aiding and abetting the commission of 11 crimes, including terrorism, slavery, rape, and the use of child soldiers.
As a number of observers have noted, the guilty verdict falls short of the prosecution’s goals (The Economist). Mr. Taylor was not held directly responsible for any of these crimes. As Kevin Heller reports:
the judges have rejected the prosecution’s allegations that he participated in a JCE to commit the crimes alleged in the indictment or that he had effective control over the RUF soldiers who committed the crimes (i.e, no ordering or command responsibility). The verdict represents a colossal victory for Taylor, even if it means that he will still receive a substantial sentence. (Opinio Juris)
However, as Heller also notes, Taylor is the second head of state to be found guilty by an international tribunal. (Before being tried at Nuremberg Karl Doenitz was President of Germany for 23 days after Hitler’s suicide. Milosevic could have been the second but he died before a verdict was reached.) (Opinio Juris).
Despite the weaker verdict, some victims apparently felt that some justice had been done here. Said the sister of one victim:
It’s good, this one is good, it’s a signal to other people that they should not completely use their money on war, ammunition, to destroy lives (Reuters)
Besides Opinio Juris, another good place to look for further reporting on this is IntlLawGrrls.
Africa Notes: WTO Roundup
The WTO and Sustainable Development
Lesotho Ambassador Mothae Maruping is the current chair of the WTO’s Committee on Trade and Development. ICTSD has a nice report of their recent meeting and its focus on sustainable development. One thought is how to integrate the WTO’s Aid for Trade program with the goal of developing a green economy. Nevertheless, it is clear that some developing countries may also see the WTO as a shield from any radical green agenda that might try to restrict their ability to trade. The delegate from Benin:
Benin said that the WTO should facilitate the elimination of distorting trade practices related to environment that are “incompatible with sustainable development”. “It is important to avoid creating new trade barriers, imposing new conditions to aid, and deepening the technological gap between developed countries and developing countries
The WTO and Regional Integration within Africa
Peter Draper has a nice discussion of the relevance of WTO rules for regional integration efforts in Africa (ICTSD). He anchors his discussion with consideration of the proposed tripartite preferential trade agreement (T-PTA) between SADC, COMESA, and the EAC (basically uniting southern and eastern Africa). He points to a WTO report which singles some of the issues in maintaining coherence between WTO rules and the rules of these new trade arrangements. His overall conclusion seems to be that the negotiating parties strive to maintain coherence with WTO rules and perhaps even allow the WTO’s help with a “mulilateralizing regionalism” component.
Doha Round
Trying to Move Forward
The BRICS would like to remind us that Doha is not yet dead (MN). Both at their own summit last month and at a G-20 meeting in Mexico, they made this point. The WTO’s Director-General Pascal Lamy continues to try to breathe new life into the round. His most recent innovation is the creation of a 12-person panel of stakeholders which include corporate leaders, former heads of state, and leaders of various international institutions. Former President of Botswana, Festus Mogae is the sole African representative to the panel.
Positive DevelopmentsAgriculture
One of the major sticking points has been agriculture, especially for many African countries. The Doha Round began with a major campaign criticizing European and American farm subsidies and support for undermining agriculture in developing countries. Many of these subsidies continue, but there are some signs of change in Europe, at least. ICTSD reported this week that total EU farm support has dropped a bit and overall trade-distorting support has dropped even further:
Overall trade-distorting support – a category including amber, blue, and de minimis support – reportedly fell to €18.3 billion, a figure that is below the €22 billion cap that would be established under the draft Doha agriculture accord. (ICTSD)
Is Doha Dead?
Monty Python: Not Dead Yet
Course Notes – IL & GEP: Equity and climate change governance
My students in both classes have been focusing on climate change governance this week. One of the key themes that emerges is the question of equity. Does fairness matter here? (A question I won’t directly address because it is a take-home exam question!). What are the politics of equity and how does that translate into legal texts? As one student posted on my International Law blog:
I would argue that the concept of equity and how to measure it is the underlying issue.
A great source on these issues is Parks and Roberts’ 2008 article, “Inequality and the global climate regime.” Inequality, they note, is relevant to the interests of states who vary in their production of emissions and their vulnerability to climate change, and their capabilities for action on climate change issues (decision-making power in international regimes, for instance).
What are the prospects for collaboration on climate change given such inequalities? As one of my students noted, there are mechanisms for side payments to developing countries, to make participation in these agreements more attractive:
One of the many obstacles to international environmental protection is the economic interests of poorer nations. In working to eliminate CFCs, the international community managed to solve this problem by creating a fund to help developing nations
Another student, considering the Montreal Protocol and its side payments to developing countries, seems to wonder whether the reasons for treaty ratification should matter to us:
What would the compliance rate have been had the Protocol not provided for these incentives or provided assistance for developing countries? While some states signed the treaty out of real concern for the environment, it seems most states only did so for financial reasons and to avoid conflict.
One of my students makes an even bolder and (perhaps) more controversial claim about the rights of the current generation in developing countries:
The environment is important and I believe that the international community should take action to protect it. However ensuring the welfare of people alive today is far more important than ensuring the welfare of the world’s future population.
The problem of inequality has been–and will continue to be for some time–THE main issue is negotiations about climate change and economic governance (where my IL class will turn their attention to next).
Course Notes – IL: Philippines v. China and the Law of the Sea
China has a long history of disputes with other nations regarding their sovereignty over islands. Japan and China are currently at odds over some islands in the East China Sea (owned by a private Japanese individual). Vietnam recently sent six Buddhist monks to lay claim to the Spratly Islands in the South China Sea. And this, coupled with the even more serious contestation between China and the Philippines, amounts to what some (including Walter Russell Mead) are calling “the Great Game”.
Map of the Spratly Islands:
The biggest contest in recent days seems to be between China and the Philippines, again near the Spratly Islands which are also desired by Vietnam (Business Insider). Philippine warships reportedly threatened Chinese fishing vessels, raided ships, and faced-off with Chinese surveillance vessels. China has deployed ships and aircraft to the region. Of course, the Philippines is a strategic ally for the United States, so it may come as no surprise that all of this is happening just as their annual joint American-Filipino military exercises began in the South China Sea (Washington Post). However, as Julian Ku notes over at Opinio Juris, it is unlikely that the Philippines will win this dispute with military force.
Could this be resolved using international law? The Philippine government seems to hope so. They have brought the case to the International Tribunal for the Law of the Sea (ITLOS). Their Department of Foreign Affairs Secretary, Albert del Rosario:
At day’s end, however, we hope to demonstrate that international law would be the great equalizer…The purpose of the exercise will be to ascertain which of us has sovereign rights over the waters surrounding Scarborough Shoal. (ABS-CBN News).
However, China may have its own sovereignty claim which, Ku notes, may make it difficult for ITLOS to have jurisdiction without China’s (unlikely) consent. And apparently China is not too keen on using ITLOS as a forum. Chinese embassy spokesperson Zhang Hua, in response to these developments, reportedly wrote:
We urge the Philippine side to fully respect China’s sovereignty, and commit to the consensus we reached on settling the incident through friendly consultation and not to complicate or aggravate this incident, so that peace and stability in that area can be restored.(Zambo Times)
So, using ITLOS is an aggravation?
Even if they cannot get ITLOS to settle the matter, they might be able to get an advisory opinion (along with Vietnam) from ITLOS on China’s claims, which could lend support for their cause, argues Ian Storey (Thanh Nien News). A case study at American University does a nice job of briefly and neatly summarizing what I believe are the key legal claims here:
The Law of the Sea Convention — an international law/standard agreed to by the countries of the world — is involved in the claims of Malaysia, Brunei, and the Philippines. These three countries claim that all or part of the islands are a part of their continental shelf. According to the Law of the Sea, the countries have legal right over the area of their continental shelf.
In 1987 China claimed that the Hainan Island–the closest recognized Chinese territory to the islands–was a separate province that would be developed as a special economic zone and declared a new law on its territorial waters in 1992. These laws gave China a greater basis for claiming control over the Spratlys as a “contiguous zones” for territory.
What is at stake here?
The islands are significant for their geographic location (shipping and military interests), fishing rights, guano, and possibly oil, natural gas and mineral resources.
Noted: Climate Change, Global Politics, and International Law
Earth Day is this Sunday and in both of my classes we are discussing the politics and international law of climate change this week and next. So I thought it might be a good opportunity to examine the recent news.
Fragmented Global Governance and Climate Change
A quick look at Reuter’s Diary on the Global Environment helps illustrate the continued fragmentary approach to these issues at the global level. Just in the next 7 days:
Regional Efforts
On a regional basis there is the Africa Carbon Forum, meeting in Addis Ababa; a “Public Forum on North America’s energy future” meeting in Canada; an “EU energy and the environment Minister’s meeting”.
Issue based efforts
Sweden’s “Stockholm+40” conference on sustainable development; The Fifth Annual Global Marine Renewable Energy Conference in Washington, DC
And if we look beyond the coming week, more of the same is happening in Asia, Europe, and elsewhere, looking at linkages between climate and water, climate and birds, the use of solar energy, and desertification. The meetings are hosted by governments, UN agencies, and regional organizations. On the one hand, we might like the fact that so much attention is being paid to these issues. On the other hand, how do we organize a response to climate change in light of such institutional complexity?
Individual state efforts to combat climate change may create problems for global talks
In Europe
While we wait on a global solution, individual countries are creating and implementing their own approaches to the issues. One example of this is a European Union law to charge airlines for their carbon emissions (Reuters). Reportedly, US airlines will comply, but China and India want nothing to do with this. Says India’s Environment Minister Jayanthi Natarajan:
For the environment ministry, for me, it is a deal-breaker because you simply cannot bring this into climate change discourse and disguise unilateral trade measures under climate change…
I strongly believe that as far as climate change discussions are concerned, this is unacceptable.
Apparently, India is suggesting that this culd be a reason for them to boycott all future climate-change talks.
In the United States
Recently, in the US there was a suggestion that the Endangered Species Act could be used to require the US to control greenhouse emissions. Since those emissions create conditions that make polar bear’s habitats less habitable, there was arguably potential scope for regulation. While this has so far been used to target domestic emissions, one can wonder whether a success in using the Act this way could also lead to pressures to regulate the actions of foreign actors whose emissions can be said to have direct effect on our polar bears’ habitats. My guess: highly improbable. But it is interesting.
Issue Linkage: Climate Change and Conservation
Finally, there is an interesting piece by Elias Ngalame at AlertNet on how Cameroon is trying to get support for climate adaptation projects in order to protect its elephants from poaching. The claim is that elephants are wandering out of the protected parks due to drought and desertification brought on by climate change, leaving them more susceptible to poaching.
Africa Notes: Gay Rights and the Alien Tort Statute
Do African politicians have a reason to support gay rights?
A recent conversation with some colleagues and the discovery of a post about “Gay Relief” on Ramblings of a Procastinator in Accra got me thinking again about the politics of homosexuality in Africa. In the blog post, Abena Serwaa writes:
Contrary to what most people believe, African leaders love gay people. In recent times, the African politician has come to realise that no single issue can galvanize and unite the citizenry across the usual divides than calls for gay rights.
As she mentions, UN Secretary-General Ban Ki-Moon’s call for African leaders to respect gay rights has not had its intended effects. Ghana’s President had this to say:
Ghanaian society frowns on homosexuality, if the people’s interest is that we do not legalize homosexuality, I don’t see how any responsible leader can decide to go against the wishes of his people.
And recent Nobel Prize Winner Liberian President Ellen Johnson Sirleaf also vowed to veto any bill legalizing homosexuality. Her Press Secretary said this:
Liberians should hold this government by her word. This President will not sign into law anything called same sex marriage. This government opposes gay rights. In fact, government will not compromise its religious belief for any (foreign) aid. We have listened to the vast majority of our people who have spoken on this issue and kicked against it, so this government has the will of the people and believes in the dreams and aspirations of the people and I can assure you that President Sirleaf will not sign that bill.
Of course, Africa is not the only part of the world that struggles to accept gay rights as Brian Whitaker notes, there is an “ongoing battle for gay rights in the Arab world.” And how can we expect this to happen any easier there than it does here in the US? Jimmy Carter, one of our most famous human rights campaigners, has just now come around to supporting gay civil marriages. And I think everyone knows how Santorum has felt about gay rights for some time.
The question becomes: what will it take to incentivize politicians in Africa (and elsewhere) to promote gay rights? No, I don’t yet have the answer.
Can Americans be sued for pursuing anti-gay agendas in Africa?
Indeed, just recently a Ugandan gay rights group, Sexual Minorities Uganda, has filed suit against American evangelist Scott Lively using the Alien Tort Statute (ATS; a statute I have written about here). As reported by the New York Times:
The lawsuit maintains that beginning in 2002, Mr. Lively conspired with religious and political leaders in Uganda to whip up anti-gay hysteria with warnings that gay people would sodomize African children and corrupt their culture.
The Supreme Court is currently hearing a different ATS case which may impact whether other cases such as this get heard. But this could be an interesting way to hold our own extremists accountable.