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351. The UN Declaration on the Rule of Law and the Application of the Rule of Law to the UN: A Reconstruction From an International Public Authority Perspective

Author:
Clemens A. Feinaugle
Publication Date:
06-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The UN Declaration on the rule of law at the national and international levels seems to open new possibilities for listed terrorist suspects claiming legal protection or those seeking damages for harm caused by UN peacekeepers because the Declaration provides that the rule of law applies to the United Nations itself. However, the Declaration raises questions regarding the elements of the rule of law, its legal basis, and binding nature. This paper attempts a reconstruction of the UN Declaration and relevant UN practice under an international public authority perspective to explain and develop elements of the rule of law applicable to the UN, to determine its legal basis, and to investigate its binding nature. It argues, that since measures under Chapter VII must be effective if the UN wants to fulfil its purpose (Article 1 (1) UN Charter), the UN is bound by the rule of law insofar as “effective” measures require that related legitimacy concerns are addressed by rule of law safeguards.
Topic:
International Law, Terrorism, United Nations, Peacekeeping, and Legitimacy
Political Geography:
Global Focus

352. Towards a New International Law of the Atmosphere?

Author:
Peter H. Sand and Jonathan B. Wiener
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Inclusion of the topic ‘protection of the atmosphere’ in the current work programme of the UN International Law Commission (ILC) reflects the long overdue recognition of the fact that the scope of contemporary international law for the Earth’s atmosphere extends far beyond the traditional discipline of ‘air law’ as a synonym for airspace and air navigation law. Instead, the atmospheric commons are regulated by a ‘regime complex’ comprising a multitude of economic uses including global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks, and addressed by a wide range of different transnational institutions. Following several earlier attempts at identifying cross- cutting legal rules and principles in this field (by, inter alia, the International Law Association, the UN Environment Programme, and the Institut de Droit International), the ILC has now embarked on a new codification/restatement project led by Special Rapporteur Shinya Murase – albeit hamstrung by a highly restrictive ‘understanding’ imposed by the Commission in 2013. This article assesses the prospects and limitations of the initial ILC reports and debates in 2014 and 2015, and potential avenues for progress in the years to come.
Topic:
Climate Change, Environment, International Law, United Nations, and Space
Political Geography:
Global Focus

353. Law as an Antidote? Assessing the Potential of International Health Law Based on the Ebola-Outbreak 2014

Author:
Robert Frau
Publication Date:
11-2016
Content Type:
Working Paper
Institution:
The Goettingen Journal of International Law
Abstract:
The Ebola-Outbreak of 2014 has put international health law in the limelight. This contribution assesses the measures taken by the international community with regard to the outbreak of 2014 with a special focus on the World Health Organization and the UN Security Council. International law provides different actors with means to cooperate in order to fight the outbreak. The list of actors does not include the UN Security Council, which has addressed the outbreak in one resolution under chapter VII without taking any effective legal remedies. In addition, the relevant human right to health has not been addressed by actors, creating leeway in further emergencies.
Topic:
International Cooperation, United Nations, World Health Organization, Ebola, Public Health, and Pandemic
Political Geography:
Global Focus

354. Combating Illegal Fishing in the Exclusive Economic Zone – Flag State Obligations in the Context of the Primary Responsibility of the Coastal State

Author:
Valentin J. Schatz
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Illegal fishing in the Exclusive Economic Zones [EEZs] of developing coastal States is an urgent problem for the marine environment, global food security, and local economies. While past academic debate has predominantly focused on obligations of flag States to tackle so called IUU-fishing in the High Seas, the recent request for an advisory opinion submitted by the Sub-Regional Fisheries Commission to the International Tribunal for the Law of the Sea (ITLOS, Case No. 21) has drawn attention to the fisheries regime of the EEZ. This article argues that the primary responsibility for fisheries management in the EEZ rests on the coastal State and that, so far, flag States have no obligation under customary international law to exercise their jurisdiction and control over vessels flying their flag which fish in the EEZ of other States. The article first gives an account of coastal State regulatory and enforcement jurisdiction. It outlines recent developments of the law by drawing on the jurisprudence of the ITLOS, particularly the recent M/V “Virginia G” Case. Further, the article undertakes to identify potential flag State obligations to combat illegal fishing in the EEZ. To that end, it provides an in-depth analysis of relevant binding and non-binding legal instruments such as the 1982 UN Convention on the Law of the Sea, other multilateral treaties, bilateral fisheries treaties, and relevant soft-law instruments of the Food and Agriculture Organization of the United Nations. The article also discusses the relevance of principles of international environmental law. Next, the article analyzes the nature and scope of potential flag State obligations, qualifying them as obligations of due diligence. Finally, the article concludes that, de lege lata, no persuasive evidence of established flag State obligations exists. The author suggests that the situation should be remedied by a new, fully binding legal instrument.
Topic:
International Law, United Nations, Maritime Commerce, and Fishing
Political Geography:
Global Focus

355. What Does New Momentum For UN Peace and Security Really Mean

Author:
Gustavo De Carvalho and Jonathan Rozen
Publication Date:
05-2016
Content Type:
Working Paper
Institution:
Global Peace Operations Review
Abstract:
A famous maxim of uncertain origin defines insanity as doing the same thing repeatedly, but expecting different results. In her opening statement at the United Nations (UN) High-Level Thematic Debate on Peace and Security, Nobel Peace laureate Leymah Gbowee used this definition to describe challenges faced by UN engagements in peace operations and peacebuilding. The 10-11 May meeting, called by the president of the UN General Assembly (UNGA) and themed In a world in risks: a new commitment for peace, provided a platform to reflect on current challenges to international peace and security. These focused, in particular, on responses to the 2015 reviews on peace operations, peacebuilding, and women, peace and security.
Topic:
Security, International Cooperation, United Nations, and Peace
Political Geography:
Global Focus

356. Demystifying Intelligence in UN Peace Operations: Toward An Organizational Doctrine

Author:
Alexandra Novosseloff
Publication Date:
07-2016
Content Type:
Working Paper
Institution:
Global Peace Operations Review
Abstract:
n a way, the title of our research paper “Demystifying Intelligence in UN Peace Operations: Toward an Organizational Doctrine”, speaks for itself. We all know that the UN secretariat has been walking on eggs with this issue of intelligence for years; doing it without saying it and without realizing it. But with peace operations involved in increasing complex and demanding situations and one senses that this “fog about intelligence” can no longer be sustainable. This report complements other earlier attempts to “demystify” that charged term of intelligence and to define what “intelligence” means in the UN context and its peace operations.
Topic:
Intelligence, International Cooperation, United Nations, and Peace
Political Geography:
Global Focus

357. When Should Blue Helmets Walk Away From a Conflict?

Author:
Richard Gowan
Publication Date:
08-2016
Content Type:
Working Paper
Institution:
Global Peace Operations Review
Abstract:
The renewed crisis in South Sudan is turning into a decisive test for the United Nations. There is a growing international outcry over reports that local forces raped and killed civilians almost in front of UN peacekeepers. The Security Council has struggled to persuade the South Sudanese government to accept the deployment of an additional 4,000 troops with a robust mandate to stabilize the capital, Juba. Having initially rejected the proposal, which has strong African support, President Salva Kiir now seems willing to at least consider the reinforcements. There are tensions in the Security Council over how to handle Kiir: the U.S. wants a tough line, but China and Russia insist on respect for that South Sudan’s sovereignty. Kiir and his advisers profoundly distrust the UN. According to a leaked South Sudanese document they believe that “The UN Secretary General [Ban Ki Moon] has constantly advanced negative views against the Government of the Republic of South Sudan and its leadership,” and even pursued a “regime change strategy.” This is unjust. A few outside analysts have advanced ambitious and probably unworkable plans to turn South Sudan into an international protectorate on the Kosovo model. But the UN is largely struggling to stay on top of the crisis and get aid to the suffering, rather than plotting to overthrow Kiir.
Topic:
United Nations, Peacekeeping, Conflict, and Humanitarian Crisis
Political Geography:
South Sudan and Africa

358. The Challenges of Full Deployment of UN Peace Operations

Author:
Ryan Rappa
Publication Date:
09-2016
Content Type:
Working Paper
Institution:
Global Peace Operations Review
Abstract:
he UN has always had problems deploying its largest, infantry-heavy missions. The 2015 Leaders’ Summit on Peacekeeping and this week’s 2016 UN Peacekeeping Defence Ministerial in London are Member State driven initiatives to do better. Broader participation in contributing to missions is a key part of rapid deployment as well as reaching full strength. A Global Peace Operations Review analysis of data from UN peacekeeping operations over the last 25 years indicates that modern UN peacekeeping missions, on average, take just over ten months to reach their peak deployment. In Africa, where countries on the continent are often left to the take the lead, average time to deploy is worse -- almost twelve months to reach peak deployment. In fact, the average non-African mission in our analysis reached peak deployment in less than seven months, the fastest of any grouping.
Topic:
International Cooperation, United Nations, Peacekeeping, and Conflict
Political Geography:
Global Focus

359. No Caveats, Please? Breaking a Myth in UN Peace Operations

Author:
Alexandra Novosseloff
Publication Date:
09-2016
Content Type:
Working Paper
Institution:
Global Peace Operations Review
Abstract:
or years, the UN Secretariat said caveats were not allowed in peacekeeping operations. Mentioning them was a kind of “taboo”. They existed on the ground but were rarely acknowledged at the political level in New York. But when operations faced a crisis and troops needed to take more risks than usual, the hitherto hidden restrictions quickly appeared, creating obvious command and control issues. Unfortunately, with peacekeeping operations now facing increasingly challenging environments, contingents refusing to follow orders, or waiting for their national authorities to confirm or countermand orders received from the UN mission’s authorities, has become the norm rather than the exception. Should we condemn this or understand the reasons why UN missions are facing such situations? It is time to stop lamenting that caveats exist and try to better learn how to manage them.
Topic:
United Nations, Military Strategy, and Peace
Political Geography:
Global Focus

360. Challenges for Human Rights Sections of UN Peace Operations

Author:
Alexis Guidotti
Publication Date:
12-2016
Content Type:
Working Paper
Institution:
Global Peace Operations Review
Abstract:
When António Guterres succeeds Ban Ki-moon as UN Secretary-General, many problems will be waiting for him, including challenges to the fundamental values underpinning UN peacekeeping. Uncooperative host governments and shifting conflict environments, including asymmetrical threats and violent extremism, are testing blue helmets on the ground. Recent adaptations of peacekeeping practice are also bringing into question the role of civilian components in UN peace operations, notably the human rights sections. The growing use of offensive mandates to quash negative forces and ensure protection of civilians has sometimes made the UN a party to the conflict and has cast doubt on the civilian staff’s protection under international humanitarian law. Recommendations by the High-level Independent Panel on Peace Operations (HIPPO) on the primacy of politics also bring into question the principles of impartiality and transparency that lie at the core of credible human rights monitoring. How can UN peace operations ensure robust protection of civilians and broker political solutions while maintaining a transparent and impartial human rights agenda? At its conception, peacekeeping was formed around three core tenets, often referred to as the ‘principles of peacekeeping’. These included the requirement of consent from the parties, impartiality and non-use of force, except in self-defense. For the most part, they have stood the test of time since Secretary-General Dag Hammarskjöld defined them while devising the UN Emergency Force (UNEF) in Suez in 1956. However, in recent years UN peacekeeping has departed from these principles as operational environments have become less permissive and in key theaters there has been less or little peace to keep. Consent has proven less reliable in conflict areas where governments or non-state armed groups deny access to peacekeepers, like in Sudan, South Sudan or Mali. Impartiality has become questionable for missions specifically deployed to support a host state Government, sometimes against non-state armed groups opposing national authorities. Since exceptions to the non-use of force principle include the defense of the mandate, as outlined by the Capstone Doctrine, and as mandates now prioritize the protection of civilians by all necessary means for most UN missions, peacekeepers are increasingly called upon to use force against potential perpetrators of violence. Current concepts of operations and rules of engagement have made it clear that blue helmets are authorized to use force to protect civilians from imminent threat of physical violence by any party. More generally, the posture of modern peace operations has adapted by the adoption of robust mandates. In some theatres, special military units with offensive directives were authorized, such as the Force Intervention Brigade (FIB) initially deployed in 2013 in eastern DRC to neutralize armed groups, or the soon-to-be-deployed Regional Protection Force in South Sudan, mandated to engage any actor preparing attacks.
Topic:
Human Rights, International Cooperation, United Nations, Peacekeeping, and Peace
Political Geography:
Africa, Mali, and South Sudan