Since Hissène Habré’s Judgment by the Extraordinary African Chambers (EAC), the world has anxiously awaited the processes that the African Union (AU) would put in place for the amelioration of the victims’ circumstances. Pursuant to the AU’s pledge and unfaltering support for the EAC, in early 2018 the AU Heads of State and Government Assembly adopted a Statute establishing the Hissène Habré Victims Trust Fund. It is anticipated that the Fund is likely to be an unsteady vehicle facing numerous challenges regarding law and policy formulation, interpretation and implementation, such as flawed decision-making processes, and a lack of proper policy direction and State cooperation, which have the potential of heavily impeding this international criminal justice enterprise. However, there exists an opportunistic trajectory for the Fund as the current trends, practices and rich jurisprudence of other criminal tribunals and courts can inform the Fund’s processes and positions. The Fund’s decision-makers should make a concerted effort in a sturdy and convergent direction that mirrors the victims’ potential values, consonant outcomes and responsibilities.
The present column covers procedural developments at the International Court of Justice for the period spanning from 1 April 2017 to 31 January 2019. Those comprise the interpretation of compromissory clauses; res judicata; admissibility challenges based on abuse of rights and abuse of process; conditions for the indication of provisional measures, in particular the requirement that the rights asserted be plausible; and the admissibility of counter-claims.
In April 2016, the International Court of Justice held a colloquium to commemorate the 70th anniversary of its establishment. One of the principal themes of this event was the potential adoption of improvements to the procedures and working practices of the Court. Responses to a Counsel Survey revealed a general interest in procedural reform at the Court, particularly with respect to the areas of evidence and procedural efficiency. The purpose of this article is to set out a case for procedural reform at the ICJ, presenting multiple options, with supplementary reference to the ITLOS. Whereas the work of the Committee also addresses procedural integrity or “the sound administration of justice”, this contribution will focus upon the Court’s case management procedures to call for their reform in order to enhance procedural economy. This would enable the Court to improve its “throughput” to be able to cope with an expanded caseload.
Consensus-Based Interpretation of Regional Human Rights Treaties Francisco Pascual-Vives examines the central role played by the notion of consensus in the case law of the European and Inter-American Courts of Human Rights. As many other international courts and tribunals do, both regional human rights courts resort to this concept while undertaking an evolutive interpretation of the Rome Convention and the Pact of San José, respectively. The role exerted by the notion of consensus in this framework can be used not only to understand the evolving character of the rights and freedoms recognized by these international treaties, but also to reaffirm the international nature of these regional human rights courts.
Within the debate on the attribution of international responsibility to international organizations and/or its Member States, the role that the internal rules of the organization may play is not settled. The competence-based approach, where a relationship is supposed to exist between the eu/Member States’ division of competences and international responsibility, and the normative control doctrine, where the Union is deemed responsible for the actions of its Member States in the course of implementing eu law, are at the heart of such debate. This contribution aims to investigate whether the recent practice concerning the Union’s international responsibility in the fields of fisheries and investment adds clarifying elements. The analysis will specifically focus on the 2015 itlosAdvisory Opinion (Case No 21), an award under the Energy Charter Treaty (Electrabel v Hungary), and the investor-to-state dispute settlement mechanisms laid down in the recent eu bilateral investment agreements. Although one of these cases seems to implicitly recognise the normative control as a rule for the attribution of conduct to the eu when its Member States act implementing Union acts, what is missing, however, is a clear and deep debate on its specific elements. Discussions on a competence-based approach and normative control seem generally confused at the eu as well as at the international community level, suggesting that important opportunities have been missed to properly re-open the debate on the role of the organizations’ internal rules for the attribution of international responsibility.
The question examined in this article is whether, as it engages in its second century, the ilo remarkable resilience will lead it to face the challenge of its “regulatory” raison d’être in a context where the uneven social impact of globalisation seems to make it more relevant than ever. The first part of the article deals with the ilo constitutional capacity to effectively discharge this regulatory function. The answer hinges on the dialectical interplay between the specific legitimacy arising of the ilo tripartite structure; its capacity to do so through persuasive ‘state centric’ means; and finally the tripartite willingness to discharge it. The second part discusses the likelihood of two possible regulatory ‘atrophy’ or ‘revival’ scenarios. The first may develop as a result of divergent motivations and interests among ilo constituents, and the trend towards its further integration into the un through the 2030 sdg. The second may prevail as a result of the growing external pressure for a more equitable distribution of the benefits and constraints (including environmental) of global interdependence. This pressure needs to be met to spare disruptive consequences, and the ilo could help meet it—subject to a more imaginative and integrated use of its normative tools and of the ilc as a ‘real economy’ forum, to promote greater coherence in the pursuit of socio-economic-environmental commitments. It concludes by highlighting that the ilo offers a readily available regulatory potential which cannot be found elsewhere at the universal level; the centenary celebration could offers a unique opportunity to trigger the momentum necessary to optimise it—though it may not be the most likely outcome.
Whilst most legal scholarship focuses on the responsibility of the United Nations for human rights violations few studies have ascertained the legal basis of the primary rules leading to such responsibility. This article fills this gap by reviewing the theories used to bind the un to customary human rights law: (1) the un has inherited its member states’ obligations, (2) participation in the formation of customary human rights law implies being bound by it, (3) the un is bound by international law because it has legal personality and (4) as the un is embedded in international law it must comply with its norms. Such theories are further tested against the backdrop of international organizations’ theories. The article draws the conclusion that (1) should be rejected, (2) is not yet legally sound and (3)-(4), despite their flaws, are more persuasive. Ultimately, recourse must be had to general international law.
Contemporary international relations have resulted not only in the establishment of intergovernmental organizations (‘igos’), but also in the emergence of certain igo-like entities which are entering into ‘diplomatic-like’ relations with states, characterised by privileges and immunities similar to those provided under classic diplomatic law. This paper analyses such diplomatic-like relations between states and a number of these igo-like entities primarily in relation to so-called ‘trans-governmental organizations’ (‘tgos)’. In addition, organizations composed of formally non-state entities, but with an undoubtedly public purpose, such as the International Committee of the Red Cross (‘icrc’) or the International Federation of Red Cross and Red Crescent Societies (‘ifrc’), as well as other so-called ‘advanced’ non-governmental organizations (‘ngos’), will also be discussed due to their participation in legally regulated international, diplomatic-like relations with states and igos.
The overarching focus on the United Nations and its agents for human rights violations and abuses they may have committed, as well as the attention to troop contributing states and even ‘victims’, has broadly shifted attention away from the role of the host state in peace operation. This article seeks to unpack that omission and suggests that it is far more problematic than commonly thought, in particular because it tends to reproduce some of the problematic features of the political economy of peacekeeping that are the background of rights abuses in the first place. Instead, as part of a tradition of thinking of human rights in terms of sovereign protection, the article makes the case for taking much more seriously the role that the host state can and should have in order to address abuses by international organizations. It emphasises how international legal discourse has tended to ‘give up’ on the host state, but also how host states have themselves been problematically quiescent about violations occurring on their territory. This has forced victims to take the improbable route of seeking to hold the UN accountable directly, bereft of the sort of legal and political mediation which one would normally expect their sovereign to provide. The article contributes some thoughts as to why host states have not taken up their citizens’ cause more forcefully with the United Nations, including governmental weakness, a domestic culture of rights neglect, but also host state dependency on peace operations. The article then suggests some leads to rethink the role of the host state in such circumstances. It points out relevant avenues under international law as well as specifically under international human rights law, drawing on the literature developed to theorise the responsibilities of states in relation to private third-party non-state actors within their jurisdiction. It argues that there is no reason why the arguments developed with private actors, notably corporations, in mind could not be applied to public actors such as the UN. Finally, the article suggests some concrete ways in which the host state could more vigorously take up the cause of rights abuses against international organizations including by requiring the setting up of standing claims commissions or making more use of its consent to peace operations, as well as ways in which it could be forced to do so through domestic law recourses. The article concludes by suggesting that reinstating the host state within what should be its natural prerogatives will not only be a better way of dealing with UN abuses, but also more conducive to the goals of peacekeeping and state construction.
Project-affected individuals are increasingly bringing tort claims against international financial institutions in domestic courts. In the US, such plaintiffs such plaintiffs have regularly failed to overcome the obstacle of the defendant institutions’ jurisdictional immunity under the International Organizations Immunities Act. In pending litigation, the US Supreme Court has resolved a long-standing debate as to its scope.
This paper examines the issue of jurisdictional immunity in the context of international project finance. It focuses on the specific frameworks established in treaties, analyses the interplay between international and domestic US norms and looks at possible implications of the exercise of domestic jurisdiction.
A key finding is that US courts, at least previously, used to grant more extensive immunities than international law required. While doubts persist as to whether domestic courts are a suitable venue for claims brought by project-affected people, existing means of international dispute settlement should be strengthened.