Denver Journal of International Law and Policy

Sources: The Jakarta Post, The New York Times, al Jazeera, BBC

A report released by the UN’s Office for Coordination of Humanitarian Affairs on September 2^nd provides a bleak outlook for Somalians facing famine and disease. According to the Somalia Food Security Nutritional Analysis Unit, all regions in the southern area of the country may soon face famine as the situation continues to worsen.

The UN report comes nearly two months after Antonio Guterres, head of the UN refugee agency, described the problems as the “worst humanitarian disaster in the world.” Mr. Guterres appealed for world support to alleviate the suffering of people in the region after visiting the Dadaab refugee camp in Kenya, which was home to more than 380,000 displaced refugees as of July, with thousands more showing up each week. Thousands more are crossing the border into Ethiopia each day, many having walked for several days. The UN estimates that up to 50% of children arriving at the camps are malnourished.

The famine is largely the result of the worst drought in Somalia in sixty years, with conditions further exacerbated by violence and political strife within the country. Relief efforts by the Somali government, the UN, and other aid groups have been complicated, and sometimes made impossible, by civil war within the nation and restricted access to some of the hardest hit areas. The al-Shabab militia, an armed Somali Islamist rebel organization with ties to al-Qaeda, has forced out many western aid organizations and blocked routes of displaced travelers seeking relief in the capital city, Mogadishu. “It is safe to say that many people are going to die as a result of little or no access [for aid groups],” says Eric James of the American Refugee Committee.

Over 12 million people throughout the Horn of Africa are affected by the drought and in need of assistance.

The leader of al-Shabab has announced, however, that the organization will continue to launch attacks on government troops and foreign peacekeepers and continue to constrain movement of those seeking to flee areas under the group’s control. Al-Shabab has also ignored pleas from Somali Prime Minister Abdiweli Mohammed Ali to stop engaging in conflicts with regional clans in central Somalia, where a recent clash resulted in at least thirty deaths with another 100 injured.

Further complicating relief efforts by Western organizations looking to help in the area is the US government’s classification of al-Shabab as a terrorist group in 2008. Such a classification makes it a crime to provide material assistance to the group, which aid officials claim has a chilling effect on relief organizations who are fearful of legal trouble resulting from aid money finding its way into al-Shabab hands.

Source: the New York Times

On March 28, 2011, President Obama laid out two principles for any U.S. action in Libya. The first is that America has the responsibility to stop “looming genocide” in Libya. The second is that when the safety of Americans is not directly threatened, but where action can be justified, America will act only on the condition that it is not acting alone.

When President Obama made this speech, he was criticized as leading from behind. In recent weeks, the President’s policy seems to be effective, and may prove to be a model for the use of force. The U.S. used its military power, including providing cruise missiles, aircraft, bombs, intelligence, and military personnel, as part of a larger NATO coalition, to begin airstrikes and create a no-fly zone over Libya. American officials have argued the Libya strategy worked because it was perceived as an international effort, and not a unilateral action by the American military.  U.S. efforts in Libya have also been criticized because of the continued use of American warplanes after control of the air war was given to NATO in early April.

Since the Libyan intervention, the Obama administration indicated it will respond to the Arab world’s revolts against its dictators on the basis of “moral imperatives”. This approach has led to criticism of the Obama administration’s response to Syria. Deaths in Syria have risen to 1,400 over four months of clashes. The U.N. has not condemned the violence in Syria, and the U.S. has not named those countries supplying Syria with arms and financial wherewithal. The lack of action or results in Syria is frustrating to both the international community and Syrian citizens.

However, experts caution that the time may not be ripe for multilateral NATO action in Syria. Robert Malley, head analyst for the Middle East and North Africa at the International Crisis group said: “What distinguishes Syria from Libya is there is neither regional nor international consensus on Syria. There’s no specific area of the country to come in and defend.” Instead of using military force to intervene in Syria, Secretary of State Hillary Rodham Clinton suggested the broadest possible diplomatic pressure could ultimately have an effect, and potentially lay the foundation for more aggressive action.

The multilateral action taken in Libya and contemplated in Syria adds to the Responsibility to Protect (R2P) doctrine debate in international law.  The R2P doctrine arose as a result of the global community’s failure to protect populations from genocide, war crimes, ethnic cleansing and human rights violations, and it outlines the international community’s response to such violations should the states involved abdicate their primary responsibility. The R2P doctrine has been strongly criticized in the past. However, in the past ten years, the doctrine has gained wider acceptance in the international community. In particular, the idea of sovereignty as responsibility to protect one’s people has begun to take hold. If Libya and Syria’s leaders abdicated their responsibility both to their citizens and to the international community, multilateral action may be justified as the R2P doctrine’s influence grows.

InforMEA Logo

This summer, the United Nations launched a website with important implications for the future of international environmental law.  InforMEA, the United Nations Portal on Multilateral Environmental Agreements brings together information relating to 17 multilateral environmental agreements (MEAs) from 12 Secretariats hosted by three UN organizations and the International Union for Conservation of Nature (IUCN).  It is also open to nongovernmental observers involved in MEA information and data management.  The portal will contain decisions, resolutions, and recommendations from conferences and meetings of the parties (COPs and MOPs), calendars, news and events, and certain national contacts.  It will also harmonize information from across the MEAs, so that information is more easily accessible and usable.  Elsewhere, I have written about the significance of COP and MOP activity.  This portal will bring this activity together in one place, in easily accessible format.

Why is this move so significant?  It has the potential to affect three areas of current concern to international environmental lawyers: sectoral fragmentation, the relationship between international law and domestic law, and accountability.

First, the portal might help us manage the sectoral fragmentation we see in international law, particularly in international environmental law.  Many commentators have worried that connections among treaties that have substantial overlap are weak or completely lacking.  This can lead to, at best, unnecessary duplication and, at worst, one subject matter treaty undermining the goals of another treaty that deals with a different subject matter.  Worries about the effects of climate change mitigation efforts on biodiversity are a good example of this.  This portal offers the potential for those interested to find avenues for coordination and linkages as they see what all the MEAs are working on.

Second, information that is more accessible is also more useful to national authorities.  As international environmental law is increasingly connected to domestic law and implementation, this accessibility will be key.  Sustainability requires recognition of local context and localized activities, as well as some international coordination of information and sharing of experience.  The role of international environmental law as a clearinghouse of information is greatly enhanced by this portal.

Third, the amount of activity undertaken by the COPs and MOPs of MEAS, as well as various technical bodies, has created concern about accountability.  NYU’s Global Administrative Law Project is an example of one response to this concern.  This portal can enhance informal accountability because it will now be much easier to find out what COPs, MOPs, and various technical bodies are doing.  The participation of nongovernmental observers is important for this, but the portal’s openness to the world at large is also key here.

Interestingly, a search on the portal under the subject category “Issues common to MEA’s” yielded no results under treaties or decisions!  But maybe this portal will start to change that.  How much this portal can do will depend ultimately both on how much information it has and how committed various stakeholders are to using it.  But it offers real promise.  International environmental lawyers, watch this space: http://informea.org/

The United Nations

This month, the once vague idea that businesses have duties toward human rights became explicit. The United Nations Human Rights Council unanimously endorsed the Guiding Principles for the Implementation of the UN Protect, Respect and Remedy Framework, a document the UN itself called “unprecedented.” It is more than that: it’s game-changing. The vote of the 47 members of the Human Rights Counsel sent a clear message to corporations worldwide: human rights are now the business of business.

The endorsement of the ‘Guiding Principles’ culminates a six-year process that was led by Harvard Professor John Ruggie. In 2005, Prof. Ruggie was named Special Representative to the Secretary General on human rights and transnational corporations. Prof. Ruggie received a three-year mandate to clarify corporate human rights standards for both business entities and states. He produced the Framework for Human Rights and Business that received unanimous endorsement from the Human Rights Council. In 2008, he was given another three years to further develop his Framework into the guidelines that were approved on June 16, 2011. Prof. Ruggie himself observed “the Council’s endorsement establishes the Guiding Principles as the authoritative global reference point for business and human rights.”

Prof. Ruggie’s work has capped the debate on whether business enterprises have human rights duties. The ‘Protect, Respect, and Remedy’ framework requires States to protect against human rights abuses by corporations, corporations to respect human rights, and both to furnish remedies for victims of human rights abuses. The Guiding Principles lay out specific actions governments and businesses need to perform. For instance, States must clarify expectations of corporate behavior, enact and enforce legislation, and investigate and remedy abuses. Corporations must formally state a commitment not to violate human rights, and demonstrate their efforts to uphold that commitment, through assessment, monitoring and remedial actions. The Guiding Principles outline a human rights due diligence process. This entails assessing actual and potential human rights impacts; integrating and acting upon the findings; tracking the effectiveness of responses; and communicating how impacts are addressed. In addition, the Human Rights Council approved the creation of a working group that will monitor the implementation of the Guiding Principles. The group will consist of five experts that will be selected at the next session of the Human Rights Council in September.

Though the Guiding Principles received unanimous approval from the UN, some human rights activists and Council members expressed disappointment. The representative from Ecuador lamented that the framework, by failing to create new legal liabilities for corporations, has fallen short. Oxfam questions the efficacy of leaving corporations and weak states to police themselves. However, virtually all major human rights organizations found something to praise in the Guiding Principles, admitting it was significant progress, even if they saw it as insufficient.

The Guidelines will have an immediate impact. Corporations that have pledged to align their operations and strategies to universal human rights norms now have substantive guidance. The Guidelines also provide a clear, uniform system for corporate evaluations, which can be shared with the public. In addition, the Guidelines have already been endorsed by large multinational corporations including Coca-Cola Co., General Electric and Goldcorp.

We at NomoGaia have been following, supporting and working with Prof. Ruggie and his team for several years, specifically on the issue of a corporation’s duty to investigate how its actions affect human rights. Our focus has been developing reliable methods of evaluating these impacts. The UN’s Guiding Principles define and mandate such assessment. There is little doubt that the ideas contained in the Guiding Principles will have a major influence on future theory and practice in the increasingly important arena where human rights and corporate action intersect.