Chicago Journal of International Law
The United Nations as Good Samaritan: Immunity and Responsibility
Kristen E. Boon
Since the U.N.’s founding, its need for immunity from the jurisdiction of member states courts has been understood as necessary to achieve its purposes. Immunities, however, conflict with an individual’s right to a remedy and the law’s ordinary principles of responsibility for causing harm. This inherent conflict at the center of the immunity doctrine has evolved into a very public rift in the Haiti Cholera, Kosovo Lead Poisoning, and Mothers of Srebrenica cases against the U.N. In these three cases alleging mass torts by the U.N., the independence of the organization is perceived by some to have trumped the dignity of affected individuals. Due to a combination of factors, including the U.N.’s broad immunities, the limited jurisdiction rationae personae of courts over international organizations (IOs), and the nascent state of the U.N.’s own internal review mechanisms, not to mention continuing debate over whether human rights obligations bind the U.N. directly under international law, these cases of human tragedy have resulted in neither compensation by the U.N. to the victims nor access to domestic courts. This article argues that the threshold problem with the position that the U.N. is absolutely immune is that it severs ordinary legal principles: an organization is responsible for the harm it causes by its negligence. Absolute immunity also stands in contrast to the U.N.’s programmatic promotion of the Rule of Law and to the standards expected of member states. While partial immunity is justified under certain circumstances, the categorical assertion of absolute U.N. immunity does not survive an assessment of accountability, distributive justice, or economics. U.N. Member States should join the conversation about what immunities mean to the U.N. today given its contemporary mandate and impact on individuals. If they do not, there may be consequences for the U.N. that are disadvantageous for its future work.
Saving the Serengeti: Africa’s New International Judicial Environmentalism
James Thuo Gathii
This Article analyzes recent environmental law decisions of Africa’s fledgling international courts. In 2014, for example, the East African Court of Justice stopped the government of Tanzania from building a road across Serengeti National Park because of its potential adverse environmental impacts. Decisions like these have inaugurated a new era of enhanced environmental judicial protection in Africa. This expansion into environmental law decision-making by Africa’s international trade courts contrasts with other international courts that are designed to specialize on one issue area such as human rights or international trade, but not both. By contrast, Africa’s international courts are simultaneously pushing the boundaries of judicial enforcement not only of international environmental law, but also of international human rights.
Three major developments account for the turn to and expansion towards international judicial environmentalism: First, the decisions of African governments to pursue megadevelopment projects such as the Serengeti superhighway, large extractive industry operations, or hydro-electric dams without regard to the environment or the interests of local populations.Second, the channeling of resistance against these mega-development projects through international courts by alliances of those directly affected by these mega-development projects at the grassroots level together with global environmental movements. Third, the repurposing of these international courts to begin enforcing environmental norms included in regional trade and human rights agreements as a result of the opportunity provided by the filing of environmental cases.
The fact that NGOs and individuals have standing to bring cases to Africa’s international courts and governments remain committed to pursuing mega-development projects strongly suggests that the trend towards consolidating international judicial environmentalism may continue. Similar cases filed in domestic courts show the continuity and complementarity between national and international courts in environmental law cases. Ultimately, this Article observes that to the extent the cases in Africa’s international courts are filed only against States leaves a huge accountability gap. Private actors responsible for the same kind of environmental damage are not amenable to suit in Africa’s fledgling international courts. This accountability gap for private actors continues an unfortunate legacy that has degraded the environment in many third world countries, including those in Africa.
Contracting for Stability: The Potential Use of Private Military Contractors as a United Nations Rapid-Reaction Force
Jared Genser and Clare Garvie
In June 2015, the High-Level Independent Panel on Peace Operations established byU.N. Secretary-General Ban Ki-moon and chaired by former East Timor President José Ramos-Horta, published its comprehensive review of U.N. Peacekeeping Operations. The Panel observed that it takes an average of six months from when a peacekeeping mission is authorized by the U.N. Security Council to when the mission is deployed. The Panel further explained that although rapid and effective deployment comes at a cost, responding more quickly saves lives and can avoid a larger, more costly response later. In its request for the Secretary-General to develop options for a new rapid-reaction capability, the Panel suggested evaluating the merits of having a small, standing U.N. force, transferring personnel and assets from other U.N. missions, and instituting national and regional standby arrangements. Each of theseoptions, however, has been available for years, relies heavily on the political will of countries and regional organizations, and has not previously been sufficient to address the requirements of rapid deployment to new missions or crisis situations.
This Article suggests that the U.N. also evaluate the potential use of private military and security companies (PMSCs) to serve as a U.N. rapid-reaction force. In short, the U.N. already relies heavily on PMSCs, it is legally permissible for PMSCs to be engaged in peacekeeping operations, PMSCs are well trained and equipped, and the U.N. could contract with PMSCs to hold a PMSC corporate entity and its employees to higher standards of conduct than country-supplied peacekeepers, who benefit from the privileges and immunities of the U.N. There have been numerous legal, moral, and practical objections raised to the potential use of PMSCs, which are considered in detail. The Article concludes, however, that given the U.N.’s urgent need for a reliable and sustainable rapid-reaction capability, this option could be considered alongside other proposals for reform.
Hybrid Tribunals and the Composition of the Court: In Search of Sociological Legitimacy
Sociological legitimacy is a critical yet undertheorized element of a successful international criminal tribunal. This Article examines the link between sociological legitimacy and the composition of hybrid courts by analyzing the practice of five international criminal tribunals: the ICC, ICTY, ICTR, SCSL, and the ECCC. It finds that the presence of local judges on international criminal courts offers a firmer normative basis for enhancing their legitimacy among the local community. However, the Article also finds that despite impressive scholarly efforts to demystify the “homogenous” international community, international judges are not sufficiently particularized. The solution I offer is both principled and pragmatic. The appointment of international judges should prioritize individuals from regional states (provided the states were not involved in the conflict), those of the same legal tradition, and individuals who speak a language of the affected state. This solution pays greater respect to national sovereignty andenhances the prospect that judges sensitive to local customs will be involved, increasing the likelihood that the court will be regarded as legitimate. The court’s sociological legitimacy, in turn, heightens the court’s prospect of success.
An Efficient Anticorruption Sanctions Regime? The Case of the World Bank
Tina Søreide, Linda Gröning, and Rasmus Wandall
With its sanctions regime, the World Bank has sent a clear message to client governments and suppliers that it will not tolerate corruption. However, as this Article argues, with its present design, the sanctions regime at the same time runs counter to the World Bank’s own development agenda. Thus, the regime will have limited effect in protecting funds for development, reducing corruption risks, promoting the integrity and functionality of markets, and strengthening domestic law enforcement institutions. A key problem is that efforts to strengthen law enforcement at the national level are too limited. The sanctions primarily target private suppliers, while governments are not held responsible when fraud or corruption occurs. This reflects the World Bank’s challenging mandate to offer financial support to developing country governments while also trying to secure efficient use of the funds after they have been transferred. In considering alternative designs for its anticorruption strategy, the Bank should collaborate with other international development banks to demand integrity mechanisms that rely upon and strengthen domestic law enforcement institutions and competition authorities in client countries.
Designing Women: The Definition of “Woman” in the Convention on the Elimination of All Forms of Discrimination Against Women
This Comment begins by noting the indeterminacy of the term “woman” in the Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW), arguing that the term, as it is used in CEDAW, is inclusive of trans individuals, thus extending CEDAW’s protections to this historically marginalized group.The Comment dissects the term “woman” in CEDAW, based in part on the Vienna Convention on the Law of Treaties, examining the ordinary meaning, the object and purpose,and the supplementary materials of CEDAW to argue that CEDAW protects trans individuals against discrimination and other abuses outlined in the treaty. The Comment also draws on the expansive interpretation of the protected classes in other U.N. treaties to argue that a similar interpretive approach to the term “woman” in CEDAW is necessary.
The Right to Property and Bank Nationalizations
The financial crisis of 2007–2008 resulted in numerous examples of state governments nationalizing banks or bailing out large private entities. Aside from the theoretical debate about nationalization and bailouts, there were practical questions about how to treat those who had invested in the nationalized banks. This Comment looks at the example of Northern Rock Plc, a U.K. bank that was nationalized in early 2008 and whose shareholders were left uncompensated for their shares. When the shareholders filed suit against the UK Government for violating their right to possessions under the European Convention on Human Rights, the European Court of Human Rights was left to determine the responsibilities of the state to property owners in times of economic crisis. However, instead of analyzing the case under the existing right to possessions doctrine, the Court deferred completely to the state. Furthermore, despite a right to possessions doctrine that reflects the importance of individuals’ subsistence, the Court declined to distinguish the situation of the individual plaintiffs from the corporate plaintiffs. The European Court of Human Rights should recognize that individual plaintiffs are differently situated than corporate plaintiffs in terms of economic survival and should engage with the legal implications of those differences.