Sep 20, 2015 | Digest
The U.N. General Assembly voted at its sixty-ninth session on September 10, 2015 to adopt a set of nine “basic principles” on sovereign debt restructuring. The resolution states that sovereign debt restructuring processes should be guided by the principles of sovereignty, good faith, transparency, impartiality, equitable treatment, sovereign immunity, legitimacy, sustainability, and majority restructuring.
Voting split largely along developed and developing country lines, with 136 votes in favor, six against, and 41 abstentions. While the resolution is non-binding, the vote marks the latest development in decades-long efforts toward an international framework for sovereign debt restructuring, an effort revived by Argentina in the wake of recent litigation over its 2001 restructuring.
The United States, which voted “no,” stated its objection to a “right” to restructure sovereign debt and highlighted its concern that the principles may undermine the enforcement of contractual terms. The EU common position expressed reservations that the resolution did not adequately support the preferred creditor status of international financial institutions or the decisions of competent courts. It also noted that the IMF is the “appropriate institution” to host such discussions.
The resolution’s supporters, which include Joseph Stiglitz, Thomas Picketty, and Pope Francis, maintain that the resolution promotes financial stability and economic development. Speaking on behalf of the Group of 77 developing countries and China, South Africa stated that the resolution serves as a good basis for future discussions.
Sep 14, 2015 | Digest
On September 1, 2015, the European Court of Human Rights in Strasbourg found that Italy violated multiple provisions of the European Convention on Human Rights in the state’s treatment of three Tunisian refugees. The three applicants who brought the case against Italy had fled Tunisia in 2011, during the Arab Spring. Italian authorities stopped the applicants at sea and brought them to a reception and first aid center, where they identified the applicants. When a riot and fire started at the center, the applicants were relocated multiple times and eventually held on boats for days before being repatriated to Tunisia.
The Court unanimously found Italy to have violated the Convention’s Articles on deprivation of liberty (Art. 5(1)), the right to be informed promptly of the reasons for their arrest (Art. 5(2)), and the right to a speedy judicial decision on the lawfulness of their detention (Art. 5(4)). A majority found a violation of the Convention’s Articles concerning torture and inhuman treatment (Art. 3), collective expulsion (Art. 4 of Protocol No. 4 to the Convention), and recourse to an “effective” domestic forum to protest the violation of rights (Art.13). Accordingly, the Court granted 10,000 euros to each applicant, in addition to the litigation costs that the applicants jointly incurred.
This judgment comes as Europe faces a crisis with the large influx of migrants from Syria and struggles to formulate adequate responses in an emergency situation similar to what it faced in 2011. In this ruling, the Court recognized the difficulties Italy faced in 2011, including the challenges of saving migrants from dangerous journeys, ensuring their health, and maintaining public order in their territories. However, this appealable decision sets a high bar for states to ensure the proper protection of migrants’ rights even in conditions of emergency, a position that the Secretary General of the Council of Europe Thorbjørn Jagland has expressed.
Apr 21, 2014 | Content, Digest
Posted by Guo Cai – April 21, 2014 @ 10:16.
On March 31, 2014, the International Court of Justice (ICJ) handed down its decision in the case of Whaling in the Atlantic (Australia v. Japan: New Zealand Intervening). Australia initiated the proceedings against Japan, arguing that Japan’s ongoing large-scale whaling program under JARPA II violates the International Convention for the Regulation of Whaling (ICRW). Article VIII, paragraph 1 of the ICRW permits Party States to issue special permits authorizing their nationals to kill, capture and treat whales only for the purpose of scientific research. The crux of Australia’s case was that JARPA II, the second phase of the Japanese Whale Research Program under Special Permit in the Antarctic, is not for the purpose of scientific research, and so constitutes a substantive violation of Japan’s obligations under the Schedule to the ICRW. The Schedule defines Party States’ substantive duties, for example, sets out catch limits for commercial and aboriginal subsistence whaling.
The ICJ panel was composed of 16 judges, including Professor Hilary Charlesworth, an SJD graudate from Harvard Law School, who was appointed by Australia as a judge ad hoc because the Court currently has no Australian members. The Court ruled in favor of Australia on most claims and found, by twelve votes to four, that: (1) Japan was not conducting JARPA II for a scientific purpose; and (2) Japan had violated its obligations under the Schedule to the ICRW. By the same votes, the Court granted Australia’s request that Japan be ordered to revoke any extant permit granted in relation to JARPA II, and refrain from granting further permits under that program. The four dissenting judges in these findings are Judges Owada (Japan), Abraham (France), Bennouna (Morocco), and Yusuf (Somalia).
While recognizing states’ discretion in issuing special permits, the Court held that the “purposes of scientific research” standard cannot depend on the state’s subjective perception alone. Adopting an “objective standard of review,” the Court found that although JARPA II can broadly be characterized as “scientific research,” JARPA II’s design and implementation are not reasonable in relation to achieving its stated objectives. In reaching this conclusion, the Court considered, inter alia, that: (1) Japan did not study the feasibility of non-lethal methods or methods combining smaller lethal takes with larger non-lethal sampling; (2) JARPA II overlaps considerably with JAPRA I; (3) Japan launched JARPA II without waiting for the final review of JARPA I by the Scientific Committee of International Whaling Commission; (4) the overall sample size under JARPA II was determined with scant analysis and justification ; (5) JARPA II’s time frame was open-ended, scientific output based on the sampled whales was limited, and the number of minke whales killed so far under JARPA II was as high as 3,600, in the absence of cooperation with other international research programs.
Peter Garrett, the Former Australian Minister of Environment, who oversaw the initiation of this case, said he “was absolutely over the moon” about the ICJ judgment. However, it does not mean the end of whaling. Norway hunts around 500 minke whales in the northeast Atlantic annually, while Iceland hunts roughly 50. In the North Pacific, Japan hunts around 100 minke whales each year outside of the JARPA II program covered by the ICJ’s ruling. These figures, though smaller than the number of whales Japan was hunting under JARPA II, are still significant.
Apr 8, 2014 | Digest
Posted by Guo Cai – April 8, 2014 @ 15:12.
On March 30, the Philippines submitted its memorial to the International Tribunal on the Law of the Sea (ITLOS) addressing “all issues” in relation to the case it initiated against China on the disputes over the South China Sea (The Republic of the Philippines v. The People’s Republic of China). For a summary of the historic development of this case, please click here. According to a statement made by Philippines’ Foreign Affairs Secretary, Albert del Rosario, the memorial consists of ten volumes of nearly 4,000 pages with more than 40 maps, which contains “the Philippine analysis of the applicable law and the relevant evidence, and demonstrates that the arbitral tribunal has jurisdiction over all the claims made by the Philippines.”
China maintains that the ITLOS has no jurisdiction over the Case, and on Monday China summoned the Philippine ambassador to express it was “extremely dissatisfied and resolutely opposed” to the filing. Although China has refused to participate in the ITLOS proceedings, on April 3 the Chinese Embassy in Manila released a position paper on the South China Sea Dispute with the Philippines, which summarized China’s position in its defense, both on jurisdictional issues and the merits.
With respect to ITLOS jurisdiction, China dismissed the Philippines’ case by insisting that the case is principally a “territorial dispute over certain islands and reefs of Nansha Islands” and therefore not covered by the UN Convention on the Law of the Sea (UNCLOS) China is entitled to refuse jurisdiction of ITLOS by the terms of a signing declaration it made in 2006 for disputes over territory, maritime delineation, and historic title or rights.
With respect to the merits, China made an unusually detailed analysis asserting sovereignty over the disputed islands. For example, on the issue of Scarborough Shoal (known in China as Huangyan Island), China refers to a 1990 statement made by the Philippine ambassador to Germany, documents of the Philippine National Mapping and Resources Authority from 1994, and a Philippine official map from 2011 to prove that the Philippines itself has conceded the Scarborough Shoal is not within its territory. On the issue of “freedom and safety of navigation,” China asserted its right to establish an Air Defense Identification Zone (ADIZ). In the position paper, China reiterates its “sincere wish” for the dispute to be settled through bilateral negotiation, urging that parties should honor their consensus on negotiation contained in the 2002 Declaration jointly made by China and all ASEAN countries on the Conduct of Parties in the South China Sea.
The filing of the case was accompanied by a Philippine vessel’s attempt to deliver food, water and troops to the Second Thomas Shoal, where the Philippines stationed a rusting military ship symbolizing its assertion of sovereignty since 1999. Two Chinese coastguard ships tried to block its path. Beijing called the move “provocative,” while the United States characterized China’s blockage as “harassment.” China demanded that the US stay away from the business. The U.S. State Department also expressly supported the Philippines’ use of the dispute resolution mechanisms under the Convention. The Government of Japan supports the Philippines’ “use of procedures” under the UNCLOS.
The disputed waters (contested by China as territorial disputes) carry half of world’s trade and are also claimed in part by Vietnam, Malaysia, Bruei and Taiwan. Some observers anticipate that ITLOS will not reach a conclusion before 2015.
Mar 2, 2014 | Digest
Posted by Joseph Klingler – March 2, 2014 @ 15:12.
The world’s largest international sporting events are symbols of friendly competition and international unity. The Olympic Charter seeks to “place sport at the service of humanity and thereby to promote peace.” FIFA, the organizer of the World Cup, similarly sees football as a “unifying force whose virtues can make an important contribution to society.”
But the World Cup and the Olympics are also lightning rods for sometimes-violent dissent. In June 2013, for example, one million Brazilians marched to protest government policies on international sporting events, including the allocation of more than $26 billion for the 2014 World Cup and 2016 Olympics being hosted by Brazil. Protests have not abated as the kick-off approaches: earlier this month, the Guardian reported that “people are still being killed in protests.”
Brazil is not unique. After two suicide bombings killed at least 35 people in Volgograd, Russia, the militant group claiming responsibility threatened to carry out further attacks if the recently-concluded Winter Olympics were held. While the group fortunately appears not to have successfully acted on this threat, the specter of violence undoubtedly loomed large.
Such protests and attacks have received significant publicity. In stark contrast, much of the international public is almost certainly less aware of the more insidious costs of the massive infrastructure projects undertaken by Olympic and World Cup hosts. As of mid-February, six construction workers in Brazil had died in “stadium construction accidents.” Even more shocking figures are being reported from Qatar as it prepares for the 2022 World Cup, still more than 8 years away. The Guardian, for example, recently reported that more than 700 Indian migrant workers’ deaths have been recorded “[s]ince the World Cup was awarded to Qatar in December 2010.” It is unknown how many more workers have died, but Nepalese workers alone reportedly account for hundreds more deaths.
In 2012, Human Rights Watch released a report highlighting of the impact of World Cup preparations on the treatment of migrant workers in Qatar, and urging the country to comply with its obligations under international human rights law. Improvements may have been made in response to this call and others like it. But if the figures reported above are any indication, much remains to be done.
Feb 7, 2014 | Digest
Posted by Joseph Klingler – February 7, 2014 @ 10:26.
The paramilitary Basij Resistance Force has long been a central pillar of support for the Islamic Republic of Iran. According to the United States Institute of Peace, the volunteer “people’s militia” was formed in 1980 by the regime’s first leader, Ayatollah Khomeini, to help defend the country “in accordance with . . . Islamic criteria.” The group now operates beneath the Islamic Revolutionary Guard Corps and assists with “internal security, law enforcement, special religious or political events and morals policing.” Infamously, the Basij played a key role in suppressing, through actions described as “brutal and predatory,” the so-called Green Movement surrounding Iran’s disputed 2009 presidential election.
By many accounts, the Basij is no paragon of human rights. But it is precisely this reputation that makes the group’s recent publication of a 27-page report documenting alleged human rights violations by the United States so interesting. Indeed, the report is striking not only in its subject matter, but also in its scope and depth. Adopting the rhetoric of human rights, the Basij address a variety of human rights concerns with U.S. practice, ranging from the treatment of minorities, immigrants and prisoners, to civil liberties, torture, and the use of the death penalty. In so doing, the report buttresses its arguments through references to a number of western rights organizations, including Amnesty International and Human Rights Watch.
While perhaps one-sided in its presentation of certain facts, the report takes itself seriously and can be applauded by those concerned with human rights in the United States and Iran alike. It would be premature to suggest that the organization has internalized all of the norms it now espouses, i.e. that the Basij’s identity and interests have been “reconstituted” in line with international human rights norms. At the same time, however, the report does suggest that the organization—and the larger Iranian regime—would like to present itself as a defender of human rights. To that extent, the Basij might at least be said to have begun a process of “acculturation,” a mechanism of state compliance with legal obligations according to which “identification with a reference group”—in this case, the human rights community—“generates . . . cognitive and social pressures . . . to conform.” But whether the Basij is internalizing norms, acculturating, or merely hypocritically propagandizing, the organization’s decision to engage with human rights discourse in this way is encouraging.
