17 June 2013
Cross posted on EJIL: Talk!
In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.
States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons.
Of course, delivering weapons to opposition groups that aim to overthrow the sitting government of the Republic of Syria is wrongful in itself, irrespective of any wrongs that may be committed by the opposition. This was discussed earlier by Dapo Akande at EJIL talk. Depending on their nature and purpose, such delivery can be contrary to the prohibition on the use of force (article 2(4) UN Charter). This will also hold for the military action needed to enforce a no-fly zone that is now being considered. It could be argued that arms deliveries that would have as their sole purpose the protection of civilians (which appears to have been the aim of the EU Ministers) need not be contrary to the prohibition on the use of force. But the assumption that such deliveries can be clearly distinguished from other deliveries and be limited to protection purposes seems doubtful. In any case, this would not make them lawful, as arms deliveries would remain contrary to the principle of non-intervention in the domestic affairs of Syria. Arms deliveries to the opposition in Syria moreover may be contrary to UN Security Council Resolution 2083 (2012), which prohibits supplying arms to persons or entities linked to Al-Qaeda. It has been reported that a recent supply of weapons to the Syrian rebels by Qatar, with US approval, ended up being used by groups linked to Al-Qaeda. (more…)
15 June 2013
The SHARES Project closely follows and collects news items that are linked to the topic of shared responsibility. This is our News Items Overview of 16 May -15 June 2013, consisting of a summary of recent news relating to shared responsibility.
- On 16 May 2013, legislation passed the Australian Senate to excise the entire Australian mainland from the migration zone. All asylum seekers who arrive in Australia by boat are now eligible to be sent to Nauru or Papua New Guinea for ‘regional processing’. The Australian Government, faced with an increasing number of boats arrivals, calls the legislation a deterrence measure.
- Eight states (Thailand, China, Kenya, Malaysia, the Philippines, Tanzania, Uganda and Viet Nam) that were identified as primary source, import and transit countries in the illegal trade in ivory, have submitted national action plans to the Secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), containing specific activities in the areas of international and national enforcement, legislation and regulations, as requested by the CITES Standing Committee in response to the huge rise in the number of elephants that were poached for their ivory. (more…)
14 June 2013
During a SHARES lecture on 6 June, Prof. Samantha Besson presented a recently published chapter on the allocation of international human rights duties and responsibilities for human rights in SHARES context. Building on the work of Henry Shue, among others, she offers a theory to bring our understanding of the supply side of human rights to the next level. Due to the complexity of this task, other human rights theorists have so far largely resorted to pragmatic and strategic reasoning instead of forwarding a morally coherent approach. Besson clarifies the steps to be taken as: (i) identification of human rights duties (ii) identification and justification of human rights duty-bearers; and (iii) allocation of human rights duties to human rights duty-bearers. In her contribution to a book on Poverty and the International Economic System, she argues that insufficient delineation of human rights duties and an unreflected use of the term ‘responsibilities’ for human rights has led to a conflation of the two, which diminishes clarity when it comes to identification and allocation of tasks on the supply-side.
First, in explaining human rights duties, Besson outlines that human rights are abstract norms, while duties can only be specified in a given context and in relation to a concrete threat. One right can be the basis for more correlate duties to respect, protect or fulfill and such duties can evolve over time and space. As such, duties need to be localized to be identified and consequently allocated. Moving on to the identification of duty-bearers, Besson defends an institutional account of human rights, with institutions as the primary human rights duty-bearers. She submits that human rights duties ought to be borne by national and regional polities’ institutions because human rights are systematic and egalitarian by nature, strongly linked to democracy and because institutions offer the best platform to allocate duties in practical sense. Which institutions bear duties in a certain case is determined on the basis of which institution has jurisdiction over the right holders, in the sense of effective control or authority and control. In this institutional account of human rights, individuals are subsidiary duty-bearers, whose duties only arise when they are allocated to them by these institutions or when institutions have failed. In the latter case, Besson argues that individuals mainly have duties to create institutions to then be able to secure human rights. International Organizations (IOs) generally do not have human rights duties but only responsibilities for human rights. However, post-national structures like the European Union, which can be said to constitute a polity when governing a group of individuals with equal and interdependent stakes, may have human rights duties. (more…)
1 June 2013
The European Court of Human Rights declared inadmissible a complaint brought against Italy and the Netherlands of an asylum seeker whose transfer to Italy was ordered by the Dutch authorities pursuant to the EU Dublin Regulation (Mohammed Hussein a.o. v the Netherlands and Italy). The Court’s rigorous scrutiny of the treatment of asylum seekers in Italy suggests that it aimed to set a standard for similar cases.
After the European Court had declared the intra-EU transfer of an asylum seeker to Greece in violation of the European Convention on Human Rights in January 2011 (the case of M.S.S., see also here), litigation in several Member States shifted to other allegedly unsafe countries for asylum seekers, in particular Italy. Some NGOs highlighted failures in the Italian protection system and advised to refrain from deporting asylum seekers to Italy (see here and here). Information of the Court shows that in 2012, the European Court accepted seven requests for interim measures to the effect of suspending expulsions from the Netherlands to Italy. Presumably, these are all Dublin transfers. The Court also refused 22 of such requests however. The cases in which it did order an interim measure concerned particularly vulnerable asylum seekers, such as minors and mothers with young children. It appears that this is the first case in which the Court substantially deals with a Dublin transfer to Italy. (more…)
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30 May 2013
Symposium on the Law of the Sea and the Law of Responsibility, cross-posted on Opinio Juris
Telesetsky’s highly interesting post highlights the problem of flag state responsibility in the law of the sea. The post identifies two major issues: Illegal Unreported and Unregulated (IUU) fishing and structurally unsafe vessels. Both these issues have been hard to resolve and difficult to regulate, at least from a flag state perspective. This comment seeks to further the debate by raising two questions regarding the role of the flag state in terms of its international responsibility.
First, if we assume that articles 91 and 94 of the Law of the Sea Convention (LOSC) do in fact impose an obligation on flag states to control registration of their ships, the obligation is still rather vague. Article 94 provides that states ‘shall take measures’ to ensure safety at sea, and that these measures shall conform to ‘ international regulations, procedures and practices’. But which regulations are to be followed and which procedures must be adopted is not evident from the LOSC. Even if regulations and procedures are indeed identified (through the International Maritime Organization for example) then the problem of identifying the flag state’s conduct appears. What is the precise conduct that may lead to responsibility? Telesetsky argues that the flag state must exercise due diligence in its authorization procedure. The contents of due diligence obligations are notoriously hard to define in international law. Some guidance might be found in technical standards adopted by international organizations but the problem persists, especially if the role of the classification societies is taken into account (i.e. another non-state actor-besides the shipowner- involved in the process of ensuring the safety of the vessel). (more…)