For those who support and believe in the power of international law to effect positive change in the world, 2019 was difficult. There were however a number of important bright sparks, in the form of efforts to negotiate treaties on the protection of marine biodiversity, business and human rights, and the elimination of work place harassment; as well as spotlights shone by national and international courts on the plight of some of the world’s most vulnerable people. The past 12 months have both highlighted the political limits within which international law operates, and the good it can achieve within those boundaries. This post reflects on some of the most important new cases, treaties, and events; as well as the international legal order’s most difficult challenges.
1) Climate change and loss of biodiversity accelerate
Climate emergency is Oxford’s word of the year and, as we are closing out the warmest decade on record, evidence of global warming seemed to be everywhere. The ferocity of forest fires both in the Amazon and in areas of Australia, fuelled by extreme drought, are but one worrying example. They also illustrate the limits of international law’s ability to force change on governments who are unwilling to accept it. Against this dark backdrop, the 2015 Paris Agreement’s achievements look modest. Climate change poses an existential challenge to international law, in that it affects almost everything it regulates. International cooperation is our only hope of tackling it, but it is difficult not to question whether the existing international legal architecture is up to the challenge.
2) The ICJ issues its opinion on the Chagos Islands
In February, the International Court of Justice handed down its advisory opinion on the legality of the UK’s continuing administration of the Chagos Islands in the Indian Ocean. The UK purchased these Islands from the self-governing colony of Mauritius in 1965 in the run up to its independence and has leased the largest island, Diego Garcia, to the US military for the last 53 years. The original inhabitants of the Islands were deported in the late 1960s and early 1970s and have been fighting for their right to return ever since. The Court’s opinion confirms that the UK’s continued presence on the Islands is unlawful and that the Islands ought to be returned to Mauritius, a position subsequently endorsed by the General Assembly. The UK’s response has been a study in silence, dashing Chagossians’ hopes of returning and casting a shadow over the UK’s reputation as a promoter and defender of international law.
3) The Supreme Court decides Jam et al v. International Finance Corporation
Also in February, the US Supreme Court rejected the International Finance Corporation (IFC)’s claim of absolute immunity, in a win for human rights and business litigation. The IFC is the investment arm of the World Bank Group, lending nearly $20 billion each year to development projects in developing countries’ private sectors. The case had been brought by a group of Indian farmers and fishermen adversely affected by a $540 million investment by the IFC in a Gujarat coal plant, which has had a significant detrimental impact on the local environment. The decision opens the way for a consideration of the merits of this case, and similar ones, in US courts. It has also shone a light on the World Bank’s patchy adherence to human rights and environmental standards.
4) The ILO takes a stand against violence and harassment in the workplace
In June, the International Labour Organization (ILO) adopted a new convention aimed at eliminating violence and harassment in the world of work. The text obliges its signatories to prevent violence and harassment, including gender-based crimes, in all work situations; and to provide appropriate and effective remedies. Importantly, Article 6 requires that “[e]ach Member shall adopt laws, regulations and policies ensuring the right to equality and non-discrimination in employment and occupation, including for women workers…” That sounds obvious, but women are not protected from sexual harassment at work in nearly a third of countries. It is a fitting way to celebrate the 100th anniversary of the creation of the ILO, one of the most quietly influential international organizations.
5) Crisis at the International Criminal Court
The International Criminal Court has been under a cloud for some time, the early optimism of its founders and supporters long dissipated. This year brought more trouble: In January, Laurent Gbagbo, a former president of Ivory Coast, was acquitted of crimes against humanity after an eight-year, high-profile trial. There are rumours of discord between the judges and some are suing the Court for higher pay. At the same time, the States Parties are keeping their fingers on the purse strings and asking the Court to justify why it has become quite so expensive with so little to show in terms of convictions. In April, the Court’s Pre-Trial Chamber denied the Prosecutor’s application to open an investigation into international crimes committed in Afghanistan in a highly controversial decision. The Chamber based itself on ‘the interest of justice’, which is not a concept it had been asked to decide on. Some of the Chamber’s concerns about the feasibility of the investigation may have been justified, but the decision did nothing to silence those who accuse the Court of being a neo-colonial institution preoccupied with Africa.
There is time still for the Court to turn things around, and it was always going to struggle under the expectations placed upon it at birth. But it will be hoping for a more successful, less contentious year in 2020.
6) Two important new treaties on the horizon
Conventional wisdom says that there is no political appetite for new multilateral treaties, but this year saw two major efforts to develop and expand international law. The first is the proposed new treaty on Marine Biodiversity of Areas beyond National Jurisdiction (BBNJ). Among other things, the treaty aims to better regulate marine protected areas, promote environmental impact assessments, and improve the management of marine genetic resources. However several important questions remain unanswered, including (crucially) the extent to which the treaty will apply to fisheries.
The second major treaty under negotiation aims to better regulate the activities of transnational corporations under international human rights law. If successful, it will strengthen international cooperation to prevent human rights abuses in the context of business activities and provide access to justice and remedies for victims. The current draft has been written by a committee appointed by the UN Human Rights Council and is likely to go through several more rounds of revision before, hopefully, being opened for signature. It is complemented by the non-binding Hague Rules on Business and Human Rights Arbitration, which were published in December.
7) WTO AB RIP
One of international law’s most successful dispute settlement bodies came to an end on 11 December: the US’ refusal to allow the appointment of new members of the WTO’s Appellate Body (AB) meant shut down. The AB had long been criticized by the US for allegedly overstepping its mark, but it was widely seen as one of the most efficient and effective international dispute settlement fora. Its shutdown leaves the world trading system without an independent adjudicator.
8) Myanmar taken to court for genocide
One of the most high-profile events in international law came late in the year: the International Court of Justice’s hearings in the provisional measures phase of the case brought by The Gambia against Myanmar for the alleged genocide against its Rohingya people. Most media attention was focused on Aung San Suu Kyi’s presence, but the case is fascinating for other reasons too: it is the first time a state with no direct link to the alleged atrocities has instigated proceedings under the Genocide Convention. The first step is for the court to determine whether or not it will indicate the provisional measures requested by The Gambia to stop the atrocities and preserve evidence. After that, it will decide whether it has jurisdiction to consider the case on its merits and, if it does, it might end up ruling whether Myanmar’s treatment of its Rohingya population amounts to genocide.
Featured image credit: “Photo” by Juliana Kozoski. Public Domain via Unsplash.