Thursday, December 15, 2011

Inspiration and innovation in international law and politics, 100 years Nobel peace prize Tobias Asser

Guest-blog by Henri van Hasselt, MSc Leiden University, at the moment working for the Institute for Historical Justice and Reconciliation

Commemorative Conference, December 9, 2011, Peace Palace, The Hague
Inspiration and innovation in international law and politics, 100 years Nobel peace prize Tobias Asser
The conference in honor of the late Tobias Asser, a hundred years after receiving the Nobel peace prize, featured a day long program with various speakers, presentations and panel discussions. The following is a selection of the opinions delivered by some of the most prominent speakers on the subjects of public international law and private international law. For a more detailed account of the life and legacy of Tobias Asser, please see ‘The learned guide of our nation. Tobias Asser’s pivotal role in international law and diplomacy’ by Arthur Eyffinger, presented during the conference.

After an interesting keynote address by Judge Peter Tomka, Vice-President of the International Court of Justice, stressing the renaissance and importance of International Arbitration in the present world, the first session of the day dove straight into the heritage of Tobias Asser and its continued importance. Among many excellent contributions, Hans van Loon, Secretary General of the Hague Conference on Private International Law, pointed towards the difficulties presently facing the Conference. While being founded on the principles endorsed by Asser, the challenges are wholly different as cross border contacts nowadays involve more states, more members of society and more complex structures. Although referring to private international law, Mr. van Loon highlighted the central issue that would occupy most of the debate during the day, namely the modern challenges facing the international legal order and possible resolutions in the spirit of Asser.

The second session of the day was instrumental in this perspective. It concerned itself with the possibilities of a third Hague Peace Conference, following the tradition of 1899 and 1907. Joris Voorhoeve, Professor of International Organizations and Security at Leiden University, stressed principally that a narrow topic base would be crucial for its success. To start of debate, he suggested the conference should either focus on small arms, corruption or on ‘clandestine precision killing’, i.e. targeting individuals using unmanned aircrafts or drones. Expanding on the evils of small arms, Mr. Voorhoeve further applauded the example of the Ottawa Landmine Ban Conference, suggesting a similar, NGO driven model could be applied to a The Hague conference. Following these suggestions, Nico Schrijver, Professor of International Law at Leiden University, questioned the necessity for a new Hague Peace Conference given the fact that the world presently knows a permanent forum to discuss these topics, but agreed with the principle of focusing on specific topics. Critical of the ineffectiveness of the Security Council, the apparent failure of the ban on the use of force by states, he suggested to pursue compulsory jurisdiction for the ICJ but stressed that any Hague Conference should focus on state actors and pursue tangible results. Compared to the pragmatic approach by the first speakers, Dire Tladi, Counselor for Legal Affairs of the Permanent Mission of South Africa to the UN, took a more idealistic approach. Establishing that the legal architecture for global peace has only been modified slightly since 1945, while the threats and characteristics of modern warfare have changed significantly, he proposed a new Hague Conference should investigate the possibilities of a Security Council reform. While commending evolving mechanisms such as peace keeping missions, Mr. Tladi noted that the Security Council only operated effectively if the interests of the permanent members were not at stake and if there was consensus.

Following more and equally interesting sessions, the day was closed by Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Council of the UN, who beautifully summarized the proceedings of the day and integrated them with accounts from his own experience, both from a recent and more distant past. Central in his appeal was the wish that the legacy of Tobias Asser should not be lost and the importance of striving towards international peace should not be forgotten in the face of adversity. Tobias Asser, he summarized, did just this by aiming for idealism but applying pragmatism.

www.ihjr.org | hhasselt@ihjr.org |info@ihjr.org

Thursday, December 8, 2011

International territorial administration: the possible revival of a concept compromised by systemic accountability concerns

Guest-blog by Aleksandar Momirov, Assistant Professor of Public International Law at the Erasmus University Rotterdam, about his thesis “Accountability of international territorial administrations : a public law approach” (Erasmus University Rotterdam, 2011):
International territorial administration: the possible revival of a concept compromised by systemic accountability concerns.

This blog post introduces the main topic of the book “Accountability of International Territorial Administrations: A Public Law Approach”. In recent history, territories have at times been placed under temporary international administration, for example in the context of decolonization or as part of a broader endeavor to end a particular conflict. Within the framework of the League of Nations Mandates System and the United Nations Trusteeship System, the international community assumed responsibility over certain territories, while delegating the actual administration to proxy states.

Occasionally, however, international entities have assumed direct control over territories. In so doing, they adopt decisions which have direct effect on the ground and thus have a direct impact on the local population. Namely, international territorial administrations are geared with an inclusive mandate to guarantee much more than the mere absence of armed conflict. Decisions adopted by these missions relate to all spheres of public life and to all fields of public power. In other words, the legislative, executive and judicial process within a territory is internationalized. Three contemporary missions come to mind as a case in point: the ongoing international administration of Bosnia and Herzegovina, the impaired UN supervision of Kosovo and the completed UN administrations of East Timor.

While illustrative of the 90’s, recently opinions have been voiced in favor of placing new territories under temporary international rule. The East Timorese model has been mentioned in the context of post-conflict reconstruction efforts in Libya. Also, the troubled region of Northern Kosovo has at times been suggested as a possible candidate for international administration.

When full-fledged international administrations are imposed, this essentially means that in terms of law, the state is replaced by an international institution. In other words, the state as the traditional intermediary in the relationship between international law and individuals was taken out of the equation. As the Brahimi Report points out, for the people on the ground, this means ¬amongst others that international entities adopt and enforce the law, establish customs services and collect taxes, adjudicate property disputes and operate ¬– and at times privatize – public utilities. Furthermore, the international entities have for example made use of their prerogatives to detain individuals by decree and to remove elected office holders from office. When public powers as the ones just described are exercised, accountability and legitimacy issues arise, especially when the exercise of these powers has an adverse effect. Practice has shown that an accountability vacuum exists; in other words, the exercise of public power is not subjected to checks and balances and can hardly be challenged by adversely affected individuals.

International law does not provide a fit for purpose regulatory framework within which international administration of territories is carried out and, more importantly, through which international territorial administrations can be held to account for the manner in which they exercise the public powers that were entrusted to them. In case of international administration, there is no coherent legal framework which would curb the authority of international territorial administration missions. Although these missions operate on the basis of a specific mandate, the former UN Special Representative for East Timor pointedly remarked that “[T]he mandate is the floor (but not the ceiling) for everything the Mission does”. The troublesome situation is further complicated by extensive immunities. Namely, the following dichotomy presents itself: while administration missions enjoy state-like powers, they hold on to a conception of immunity common to international organizations and defended by operational necessity. This setting gives rise to fundamental issues concerning legitimacy and accountability of these international administrations.

The book “Accountability of International Territorial Administrations: A Public Law Approach” conceptualizes the accountability deficit of missions engaged in the international administration of territories. In addressing the accountability deficit, a public-law approach is adopted. The book explores to what extent it is warranted to perceive these missions as public entities exercising public power rather than international organizations merely engaged in extensive peacekeeping and how public law influences our understanding of the accountability deficit.

The book looks at public law as the body of law that traditionally regulates accountability with respect to the exercise of public power, arguing that public law principles can, mutatis mutandis, be applied in a non-state context where public law is exercised. Three public law principles are emphasized in this respect: the rule of law, reviewability and the independence of the judiciary, while exploring the linkage between these three principles on the one hand and the main institutional and conceptual characteristics of international territorial administration on the other hand. The book illustrates how the systemic disregard of these three principles is at the core of the accountability deficit of international administrations and how public law should play a role in addressing this deficit.

http://www.elevenpub.com/law/catalogus/accountability-of-international-territorial-administrations-1#

Aleksandar Momirov donated a copy of his thesis to the Peace Palace Library.

Friday, November 25, 2011

Shabtai Rosenne Memorial Lecture

On Thursday, 24 November the first Shabtai Rosenne Memorial Lecture, delivered by Professor Malcolm N. Shaw Q.C., Senior Fellow at the Lauterpacht Centre for International Law at the University of Cambridge, took place at the Peace Palace in The Hague, a little more than a year after Professor Rosenne’s death. The event was hosted by the Embassy of Israel in The Hague and Brill-Martinus Nijhoff Publishers, together with the Rosenne family.

The Hague and the Peace Palace were considered the obvious choice for this first Rosenne memorial lecture. Not only did Professor Rosenne devote an important part of his academic life to the study of the International Court of Justice (ICJ) and its predecessor the Permanent Court of International Justice (PCIJ), he was also the first person to be awarded The Hague Prize for International Law in 2004. His study of the ICJ and PCIJ resulted in a series of authoritative writings on the law and practice of these courts. In addition Rosenne published extensively on a variety of legal subjects, e.g., the law of treaties, the law of the sea, the codification of international law, the law of Israel, etc., in many books and legal periodicals as can be witnessed from the bibliography which was compiled especially for this occasion by the Peace Palace Library (PPL) and published in the booklet on the Memorial Lecture. All publications listed (his early publications from the 1940’s go under the name of S.W.D. Rowson) are available at the PPL and many of them can be readily found through the online catalogue.

In his lecture entitled, “The Peaceful Settlement of Disputes: Paradigms, Plurality and Policy”, Professor Shaw gave an overview of where he thought dispute resolution was at the moment. He emphasised the need to see international law generally and peaceful settlement of disputes specifically within the context of the contemporary social, political and economic circumstances. Such a context with its resulting legitimacy principles would help explain current international law, assist with its interpretation and give some indications of future developments. Essentially, changing economic and political circumstances require changing laws, institutions and mechanisms. He drew attention to the current trend for dispute settlement by the use of multiple techniques, discussing as an example the resolution of the Bakassi dispute between Cameroon and Nigeria with the close involvement of the UN, following upon the decision of the International Court of Justice. Further, Shaw noted the tendency of the International Court to be more prescriptive in its orders and decisions, with what he termed an increasing "long reach", whereby the Court called upon the parties to adopt specific measures or methods in order to ensure full resolution of the dispute that had been before it. He concluded by emphasising that international law is about getting things done in the most convenient manner and thus building cooperation, but all with the purpose, as Shabtai Rosenne had stated in his acceptance speech for the Hague Prize in 2004, of seeking justice.

In a Comment to the lecture of Professor Shaw, Dr. Daphné Richemond-Barak, from the Inter-Disciplinary Center (IDC) in Israel, highlighted two trends in international dispute settlement, (i) the growing influence of non-state actors, and (ii) the proliferation of dispute settlement. Dr. Richemond focused in particular on the increasing participation of international/regional organisations and civil society in dispute settlement. She also elaborated on the growing number of non-traditional mechanisms for the resolution of international disputes.

Both the text of and the comment to the Shabtai Rosenne Memorial Lecture will be published in the near future by Brill/Martinus Nijhoff Publishers.

Thursday, November 10, 2011

Dag Hammarskjöld (1905 - 1961)

Fifty years ago, the former United Nations Secretary-General Dag Hammarskjöld tragically passed away in a plane crash, on his way to cease-fire negotiations with the leaders of Katanga province of conflict-ridden Congo.

When Dag Hammarskjöld became Secretary-General in 1953, the United Nations was heavily divided by the Cold War. In spite of great political hostility between the Super Powers, he proved to be undaunted by powerful governments and was able to generate a strong and welcoming feeling of hope within the international arena. From the beginning, Hammarskjöld was very aware that the UN was still in its early stages of development and needed to make a constant effort to search for new ideas as well as establish new precedents to effectively deal with contemporary problems. He went to great lengths to lay a strong foundation for new ideas and techniques. For instance, he personally engaged in laborious negotiations of a Status of Forces Agreement with Egypt to define the relationship of the first UN Peacekeeping Force with its host country. [1] Hammarskjöld believed that a just and fair world could eventually be achieved by the establishment of precedents and case law.

In his last Annual Report to the UN General Assembly, Hammarskjöld argued that the objective of International Peace and Security would only be achieved on the basis of four fundamental principles, namely: (i) equal political rights, both sovereign and individual; (ii) equal economic opportunities, through higher standards and also conditions conducive to economic and social advancement; (iii) a firm framework of the rule of law, which should underpin all activities of the international community; and (iv) the prohibition of the use of force, where it is contrary to the other three principles.




Today, these same principles remain at the core of the UN's efforts to maintain global peace and security, and the international institutions that emerged. The development of a collective security system raises intriguing questions as to what extent comtemporary approaches are still consistent with Dag Hammarskjöld's vision of the UN.

To commemorate his legacy, The Hague Institute of Global Justice organizes a Conference on the 9th and 10th of November 2011 titled: Peace Diplomacy, Global Justice and International Agency, Rethinking Human Security and Ethics in the spirit of Dag Hammarskjöld (1905-1961)

The Conference will pursue the following objectives:

1. To investigate Dag Hammarskjöld's ideas in shaping the future role of the United Nations

2. Learning lessons from concrete conflict situations in which the International community was or is involved .

3. Raising our understanding of the critical relationship between justice and peace.

4. Making national and international efforts and institutions more effective and sustainable.










[1] New Routes, Volume 16 (2), Special issue in collaboration between the Life & Peace Institute and the Dag Hammarskjöld Foundation, Life & Peace Institute, 2011








Wednesday, November 2, 2011

Abyei Arbitration between the Government of Sudan and the Sudan People's Liberation Movement

The Peace Palace Library organizes an evening of lectures and discussion about the Abyei Arbitration between the Government of Sudan and the Sudan People's Liberation Movement. The speakers are Mr. Brooks W. Daly, Deputy Secretary-General and Principal Legal Counsel of the Permanent Court of Arbitration (PCA), and Prof. Johan G. Lammers.

The lecture will take place Wednesday 30 November, 2011, at 17.30-19.30 (lecture starts at 18.00), in the Historic Reading Room of the Peace Palace Library.

On the 22nd of July, 2009, an Award on the delimitation of the Abyei Area was rendered, thereby settling a dispute between the Government of Sudan and the Sudan People’s Liberation Movement/Army. The PCA acted as registry and provided administrative support. The rendering of the Award was meant to facilitate the organization of a referendum about the future of the area, where various oil fields are located. On the 9th of July 2011, South Sudan declared its independence, making the outcome of the referendum even more important. However, the referendum was postponed and despite the rendering of the award, the Abyei Area continues to be contested between the Republics of Sudan and South Sudan.

Brooks W. Daly is Deputy Secretary-General and Principal Legal Counsel of the Permanent Court of Arbitration (PCA). Before joining the PCA, Mr. Daly acted as Counsel at the International Chamber of Commerce (ICC) International Court of Arbitration in Paris, France, and practiced with law firms in Los Angeles and London. He will speak about the Abyei Arbitration between the Government of Sudan and the Sudan People's Liberation Movement.

Johan G. Lammers was Legal Advisor of the Ministry of Foreign Affairs, and Professor in International Law at the University of Amsterdam. In 1999 he was awarded the Elizabeth Haub Award for his exceptional contribution to the field of international environmental law. He will speak about the political “prehistory” of the Abyei Arbitration.

The Peace Palace Library Lecture Series consists of approximately four lectures a year about issues of international public law. Each lecture will start with a small reception in the library’s new reading room, followed by the lecture in the historical reading room. The Lecture Series are open to everyone and are especially interesting for researchers and students, as well as diplomats, international civil servants, journalists and other professionals working in the field of international public law.

Please register by sending an email to Otto Spijkers at o.spijkers@ppl.nl. We hope to see you there!

Monday, October 24, 2011

The United Nations, the Evolution of Global Values and International Law

In this blog post, a new and increasingly popular way to research the work of the United Nations (UN) is introduced. Instead of seeing the international organization as mainly a political organization, the UN is increasingly seen as a "Town Meeting of the World," i.e. a global debating society, where ideas are discussed and developed by representatives of the international community.


Of course, the United Nations (UN) is a political organization, an alliance of all the world’s States gathered together to achieve some ambitious common goals and tackle the most important global challenges. The focus in UN-research is generally on the way the UN has sought to achieve this formidable task, inter alia by encouraging its Member States to actively pursue these common goals.



The Organization achieves this by translating the moral language of global values into the language of public international law. This results in various treaty texts, recommended by the United Nations to its Membership. Many of these texts have indeed become binding international law through the consent of all States party to such treaties. Some of these treaties also establish separate legal regimes, where responsibilities are allocated and various (legal) incentives for compliance put in place.



In the book The United Nations, the Evolution of Global Values and International Law, this process is studied in a non-traditional way. The emphasis is not on the question as to what the existing legal obligations are and how compliance is ensured and how effective these compliance mechanisms are. Instead, the focus is on the role of the United Nations in the articulation and evolution of the goals themselves. The central question is as follows: What is the role of the United Nations in reaching global consensus on what the international community should look like and in which direction it ought to develop?


A detailed examination of the travaux préparatoires of the founding conference of the United Nations in San Francisco in 1945 shows that the UN’s establishment was greatly influenced by global values, i.e. globally shared beliefs that distinguish evil from good, the present from a better world. A common desire to eradicate war, poverty, inhuman treatment and exploitation of peoples, has led to confirmation of the global values of peace and security, social progress and development, human dignity, and self-determination of peoples.


These values can already be found, albeit in rudimentary form, in the UN Charter. Over time, the Charter has proved to evolve, like a “living tree”: although the text of the Charter has not changed significantly, its interpretation has followed the changing conditions of society; this way the norms and values of the UN Charter have always remained topical and relevant. The study charts how the United Nations, and especially the General Assembly, have continuously contributed to the global values debate, and how these values have been translated into the language of international law, including through the introduction of novel legal concepts such as the responsibility to protect, sustainable development, human security and the right to self-determination.

The study shows that the value of peace and security mainly evolved through the UN’s efforts to identify a list of potential threats, such as interstate aggression, civil war, and terrorism. When it comes to social progress and development, the General Assembly has focused on the preparation of a long series of action plans and development programs. Furthermore, there is increasing attention for sustainable development and the legal rights and obligations deriving therefrom. The work of the United Nations on human dignity includes an impressive list of human rights that all countries should respect. The debate on self-determination is still in development. It is clear that it is based on the desire of communities to control their own destiny, without any external oppression.

In examining the intellectual history of the United Nations, one is struck by the abstract nature of the debates. This distinguishes them from the usual inter-State meetings, which have a more political or practical nature. Yet the debates in San Francisco and the General Assembly cannot be characterized as merely theoretical debates. The participants are all representatives of a particular State, with its own cultural and historical traditions and interests. To reach agreement, all representatives - together constituting a colorful patchwork quilt of various cultures, religions and traditions - have to negotiate. The final result is a carefully phrased global consensus on the direction the international community should take. While attempts are being made to achieve this goal, this goal itself - expressed in the language of global values - does not sit still. Instead, it is constantly developing or evolving...



Interesting website: Audiovisual Library of International Law (especially the section on the UN Charter)

Thursday, October 20, 2011

The Institute for Historical Justice and Reconciliation in The Hague

Guest Blog by Joël Groeneveld, Office Manager/Program Officer:

The Institute for Historical Justice and Reconciliation

Unresolved historical claims can, when misunderstood or manipulated, create and reaffirm prejudice and hatred among populations, thus fueling ethnic and nationalistic violence and conflict. Therefore, in order to promote tolerance and reconciliation, there is oftentimes the need to overcome these distortions of historical reality. The Institute for Historical Justice and Reconciliation seeks to contribute to this goal through helping scholars from different sides of a conflict work together to research and write narratives that can be shared among communities or peoples in conflict. Through this process of shared work, a better understanding of “the other” is gained by both sides. The process seeks to dispel public myths around disputed historical legacies through the use of shared narrative and to develop networks of engaged citizens who can debate, confront and change those disputed and confrontational historical legacies.

What does this mean in the practice? How can historical accounts help understand the position of ‘the other’? A good example is the most current book published by IHJR, Two Sides of the Coin: Independence and Nakba 1948, Two Narratives of the 1948 War and its Outcome. In this unique joint enterprise, a Palestinian and an Israeli, both historians, worked together to offer multi-perspective narratives on the War of 1948. Their task was not easy, as they explain: ‘the attempt to formulate one text consisting of two different and often contradictory stories was emotionally challenging for both of us, as it required each of us to take part in formulating a narrative that was contradictory to our own respective experiences and education and that often challenged our respective identities”. And yet, the fact that his book has come to light goes to show that the narrative of ’the other‘ can be understood and respected, even when in some cases it is not shared.

IHJR has worked extensively to tackle the historical claims in the Israel-Palestine conflict, through different historical approximations. For example the book Zoom In: Palestinian Refugees of 1948, Remembrances, presents pictures and individual students reactions to them. This approach showcases not only that there is still a need for understanding, but also how deeply ingrained perceptions of ‘the other’ are in this conflict. The Sacred Sites in the Holy Land: Historical and Religious perspectives publication seeks instead to familiarize both sides with the narrative of ‘the other’ regarding holy places, while working towards a common narrative of their religious significance.

Yet the issues of unresolved historical claims are not particular to one region; that is why IHJR is also involved in other areas of the world, such as the Former Yugoslavia and its successor states. The facilitation offered by IHJR was pivotal for the publication of Political Myths in the Former Yugoslavia and Successor States. A Shared Narrative, a book which attempts to dispel political myths that fueled the Balkan conflict. There is currently active work as well in the Armenia-Turkey area, and research is being done on the Roma population in areas of Eastern Europe where conflict is most acute and violence against this population is on the rise.

IHJR hopes that others are inspired by the institute’s approach and that they begin using history as a means for fostering peace-building efforts. It continues to disseminate shared narratives through various media, such as publications, documentaries and photo exhibitions, as well as through engaging civil society and educators. For more information, please visit the website at www.historyandreconciliation.org or write an email to info@ihjr.org.

Monday, October 10, 2011

Eichmann Trial 50 years

On Tuesday 11th October, a lecture will take place on the lasting impact of the Eichmann Trial half a century after the trial took place.

Adolf Eichmann was a German Nazi official, a SS Obersturmbannführer and one of the prominent architects of the Holocaust.

When the Second World War came to an end, Eichmann managed to escape prosecution by fleeing to Argentina. He lived a quiet life in Argentina as a rabbit farmer under a false identity until 1960 when he was discovered by Mossad, the Israeli intelligence agency. After carefully planning his arrest, he was captured and smuggled out of the country without informing the Argentine government. This led to a diplomatic dispute over territorial sovereignty in which The United nations Security Council eventually mediated.

He was then transported to Israel to stand trial in what was to become one of the most controversial trials in international legal history. The news of his capture and abduction to Israel created much uneasiness for German Chancellor Konrad Adenauer and the members of his cabinet and their possible involvement in war crimes. According to Der Spiegel, the German government knew his whereabouts as early as 1952, but never made a serious attempt to bring him to justice. In 1956, Eichmann even wrote an open letter to Chancellor Adenauer in which he suggested he should be allowed to return to Germany to tell the people what really happened during the War. After Eichmann was abducted to Israel, the Adenauer government held a crisis meeting, where they agreed to take all necessary measures to make clear that he was a stooge of Himmler´s SS and that he was not an authorized agent of Germany.

The Eichmann trial started on 11th April 1962 in Jerusalem. Eichmann was indicted on 15 criminal charges including crimes against humanity, crimes against the Jewish People and membership in an outlawed organization. The legal basis of the trial against Eichmann was the 1950 ´´ Nazi and Nazi Collaborators Punishment Law´´.

The Eichmann trial can be considered as not just a trial of one individual, but a trial against anti Semitism as a whole throughout history. It was to demonstrate and communicate the dangers of anti Semitism and serve as a reminder for the dangers of permitting the destruction of six million Jews. Furthermore, it brought to light the lack of initiative of the West German government to bring ex Nazis to trial. This was discussed by Matthew Lippman in The Houston Journal of International Law (1982, vol. 5, pp. 1-34)summing up all legal issues raised in the trial. (“The Trial of Adolf Eichmann and the Protection of Universal Human Rights under International Law”)

The trial was broadcast internationally and was the first televised trial in history. After eight months, he was found guilty on all counts and sentenced to death. Five months later, he was executed by hanging and his ashes were scattered at sea.

Dr. Ruth Birn, Professor Thomas Mertens and Professor Harmen van der Wilt will lecture on the several aspects of this controversial trial.
The Peace Palace Library has an extensive collection on the Eichmann trial. These include books and articles on the legal, political, psychological and philosophical aspects of the trial.

CA/IK

Tuesday, August 30, 2011

Athletes and whereabouts

Whereabouts are information provided by a limited number of top elite athletes about their location to the International Sport Federation or National Anti-Doping Organization that included them in their respective registered testing pool as part of these top elite athletes'anti-doping responsibilities.

What does that mean? Anti-Doping Organizations are required to have out-of-competition testing on top elite athletes. These tests can be conducted anytime, anywhere and without notice to the athletes.

According to the World Anti-Doping Agency (WADA) they are the most effective means of deterrence and detection of doping. The WADA is not responsible for deciding who should be part of the registered testing pools. Whereabouts rules are part of the International Standard for Testing (IST).

Violation of applicable requirements regarding athlete availability for out-of-competition testing, including failure to provide required whereabouts information and missed tests constitutes a violation of an anti-doping rule (doping offence) against articles 2.4 WADA Code 2009 and 2(3)(d) UNESCO Convention.

Any combination of 3 missed tests and/or failure to provide accurate whereabouts information
within an 18-months period now leads to the opening of a disciplinary proceeding by the Anti-Doping Organization with jurisdiction over the athlete. Sanctions range between 1 and 2 years depending on the circumstances of the case.

The Danish cyclist Rasmussen had to leave the Tour de France 2007 after he failed to report his whereabouts to the UCI in a timely fashion over several occasions. Dramatically enough he was in the yellow jersey when the Danish federation went public with the news that he had missed doping controls and dropped him from the national team.

Footballfederations FIFA and UEFA say there are "fundamental differences" between individual athletes and players or teams. FIFA and UEFA "do not accept that controls be undertaken during the short holiday period of players, in order to respect their private life."

International Association of Athletics Federations (IAAF) supports the whereabouts rule: "There's no point in having any whereabouts or testing system at all if it does not actually help the testing authorities locate the athletes who may be cheating.""If you are going to do it at all, you should do it properly". In fact, IAAF advocates even a more strict schedule of testing.

The question remains whether out-of-competition testing violates the right of privacy of an athlete legitimately.


++++++++++++++++++++++++++++++++++


Books and articles in the Peace Palace Library catalogue




External links:

Q & A WADA on Whereabouts InformationWADA Code 2009

UNESCO International Convention Against Doping in Sport (October 19, 2005)


WADA Athletes Whereabouts Information Guideline [November 22, 2005] (World Anti Doping Program)



News articles:


IAAF opninion on "new" whereabouts requirements (March 5, 2009)


FIFA and UEFA reject WADA 'whereabouts' stance (March 24, 2009)


Rasmussen admits lies, claims Rabobank knew his whereabouts (November 9, 2007)


WADA drug rule rejected in Sportsnet.ca (March 24, 2009)


Whereabouts newsitems in Belgisch Sportmagazine



Another blog: Sport and Drugs Procon.org


Friday, August 19, 2011

Dutch responsibility for Srebrenica

Today, the Court of Appeals in The Hague published the English translation of the judgment in the cases of Mustafic and Nuhanovic versus the State of the Netherlands. The original judgments (in Dutch) of both Mustafic and Nuhanovic were published on 5 July 2011: they are almost identical.


Mustafic and Nuhanovic, two Bosnian Muslims, held the Netherlands responsible for cooperating with the evacuation of some of their relatives from the enclave Srebrenica after it had fallen into the hands of the Bosnian Serbs on 12 July 1995. All evacuated relatives were subsequently killed by Bosnian Serbs, together with thousands of other Bosnian Muslims.


Mustafic and Nuhanovic both appealed the ruling made against them by the District Court in The Hague on 10 September 2008. The Dutch District Court concluded, that the Netherlands could not be held responsible for the death of the relatives of Mustafic and Nuhanovic, since the acts of the Dutch peacekeepers in Srebrenica had to be attributed to the United Nations, and not to the Netherlands (see paras. 4.7-4.15 of Nuhanovic (District Court)).


The Dutch Court argued that, in general, the acts of peacekeeping forces should be attributed to the UN (paras. 4.8-4.11). This was based on an assessment of the international law on attribution. In view of the Dutch District Court, there were essentially two opposing views on attribution: the International Law Commission believed that the question of attribution and responsibility ultimately depended on who had “effective control,” whilst the European Court of Human Rights believed it depended on “ultimate and overall control.” The Dutch District Court chose to stay closer to the latter approach when it suggested that only if “the State cut across the United Nations command structure” of the United Nations would there be “scope for attribution to the State.” This would have been the case if Dutchbat soldiers were explicitly obligated by the Dutch State to ignore UN orders, or if they clearly acted under the command of the Netherlands as opposed to the UN (paras. 4.14.1). The District Court did not believe that the Dutch State cut across the United Nations command structure in this particular case (paras. 4.14.1-4.14.5), and thus the Netherlands could not be held responsible for any wrongful act committed by Dutchbat in Srebrenica (paras. 4.3, 4.5 and 4.15). See also the last few pages of this article about Srebrenica.


The Appeals Court did not follow the District Court’s approach on the matter of attribution. Instead of applying the European “overall command and control” criterion, the Appeals Court chose to apply the ILC’s “effective control” approach. In view of the Appeals Court, “in international law literature, as also in the work of the ILC, the generally accepted opinion is that if a State places troops at the disposal of the UN for the execution of a peacekeeping mission, the question as to whom a specific conduct of such troops should be attributed, depends on the question which of both parties has 'effective control' over the relevant conduct” (para. 5.8, Nuhanovic (Appeal)).

In para. 5.9, the “[Appeals] Court adopt[ed] as a starting point that the possibility that more than one party has 'effective control' is generally accepted [and that] for this reason the Court will only examine if the State exercised 'effective control' over the alleged conduct and will not answer the question whether the UN also had 'effective control'.” The Appeal’s Court thus believed that both the UN and the Netherlands could be responsible for the same acts at the same time. By accepting the possibility of dual attribution in this way, the Appeals Court once again distanced itself from the District Court. It further avoided having to say something about the UN’s responsibility, which is convenient since the UN enjoys immunity from the jurisdiction of the Dutch courts.

After rejecting the District Court's interpretation of the law on attribution, the Appeals Court now had to apply its own criterion of attribution to the facts. In the end, it concluded that “it [was] beyond doubt that the Dutch Government was closely involved in the evacuation [from the enclave Srebrenica] and the preparations thereof” and that “the facts [did] not leave room for any other conclusion than that, in case the Dutch Government would have given the instruction to Dutchbat not to allow Nuhanovic […] to leave the compound or to take him along respectively, such an instruction would have been executed” (5.18).


In conclusion, the Court held that “the State possessed 'effective control' over the alleged conduct of Dutchbat that is the subject of Nuhanovic's claim and that this conduct can be attributed to the State” (5.20). An important consideration in reaching this conclusion was the fact that, at the relevant time, Srebrenica had already fallen into the hands of the Bosnian Serbs, and that the UN peacekeeping mission was not in operation anymore. Considering the circumstances, Dutchbat could have decided not to surrender the family members of Nuhanovic to the Bosnian Serbs. The UN did not oblige Dutchbat to do otherwise, and Dutchbat's cooperation in the evacuation of Nuhanovic' family members from the compound had to be attributed to the Netherlands. This does not mean the UN bears no responsiblity at all, but that is something the Court cannot rule upon, since the UN is immune from domestic court proceedings.


UPDATE:


To know more, please consult the extensive collection of the Peace Palace Library, especially the publications on Srebrenica, the war in the former Yugoslavia, genocide, fair administration of justice, and State responsiblity.

Wednesday, August 10, 2011

AUDIOVISUAL LIBRARY of INTERNATIONAL LAW (AVL) and the PEACE PALACE LIBRARY (PPL)

The United Nations International Law Fellowship Programme (ILFP) organized a 45 minutes presentation of the Audiovisual Library of International Law (AVL) for the participants of their six-week course in the Peace Palace. Representatives of The Hague Academy of International Law, the Dutch Carnegie Foundation and members of the Peace Palace Library Staff also were in the audience. The ancient reading room of the Peace Palace Library provided a perfect setting for this journey into international law. It is appropriate to say a few words about this “Audiovisual Library”.

In 1965 The General Assembly established the United Nations Programme of Assistance in the teaching, study, dissemination and wider appreciation of international law. A better knowledge and understanding of international law might contribute to international peace, justice, security and the rule of law. The Codification Division of the Office of Legal Affairs of the UN is responsible for the implementation of the Programme. The International Law Fellowship Programme (ILFP) and the AVL are among the activities of the programme.

The AVL was established (2008) as an innovative instrument for the promotion of the knowledge of international law. It also reflects the historic as well as modern development of international law within the United Nations and its importance for the contribution to a better and safer world.

The three components of the AVL , Historic Archives, Lecture Series and Research Library, are essential for the education of international lawyers, for deepening the knowledge of legal practitioners and specialists, and to provide an immense multidimensional source of information for researches in the field of international law. The availability of historic audiovisual material, excellent treatises of topics by leading experts, combined with the collection of the library section is quite unique. The AVL is freely accessible on the Internet.

After three years the success is evident. Innumerable people from all over the globe accessed the AVL, stressing the importance of the knowledge of international law for society.

In 1913 Andrew Carnegie donated one million dollar to build the Peace Palace with the explicit condition that it should have a library. He wanted a “temple of peace”, where lawyers could study international law, would come to a better understanding of the world and so would contribute to a peaceful society. The Peace Palace Library is now one of the largest international law libraries in the world, focusing, just as AVL, on building a multidimensional collection of paper and digital elements, accessible on the internet. The PPL Research Guides are new tools to facilitate research in specific fields of international law offering search possibilities through the PPL catalogue and the Internet.

The United Nations Audiovisual Library of International law and the Peace Palace Library share the same idea “to further peace through international law”

Thursday, August 4, 2011

United Nations Security Council Statement on Syria

Yesterday, August 3, The United Nations Security Council (UNSC) issued a presidential statement in which it for the first time condemned the mass human rights abuses and use of force by the Syrian government against its population. The statement called for an end to the violence by all parties involved.

Syria has been troubled by deadly civil unrest for several months now. Various sources claim that since the beginning of the anti-government protests in mid-March more than 1600 civilians have been killed by security forces. More than 2000 people have disappeared and many of those arrested have been beaten and tortured. More than 10.000 of the protesters are still in detention.

Although the UNSC statement - a step short of a more weighty SC resolution - that was agreed after weeks of protracted negotiations didn't mention the UN investigation into human rights violations that a number of European states on the Council had asked for at an earlier stage, the Security Council said that those responsible for the violence should be held accountable.

After the UNSC delivered its statement, Secretary-General Ban Ki-moon said that the statement sent a “clear message from the international community” to the Syrian authorities to stop their “brutally shocking” actions. He added that “[a]ll killings should be investigated fully, independently and transparently. Those responsible should be held to account.” He further urged the Syrian government to comply with the SC's demand to grant unimpeded access to international humanitarian organizations.

Here follows the full text of the UNSC Statement

“Presidential Statement

The full text of the presidential statement contained in document S/PRST/2011/16 reads as follows:

The Security Council expresses its grave concern at the deteriorating situation in Syria, and expresses profound regret at the death of many hundreds of people.

The Security Council condemns the widespread violations of human rights and the use of force against civilians by the Syrian authorities.

The Security Council calls for an immediate end to all violence and urges all sides to act with utmost restraint, and to refrain from reprisals, including attacks against state institutions.

The Security Council calls on the Syrian authorities to fully respect human rights and to comply with their obligations under applicable international law. Those responsible for the violence should be held accountable.

The Security Council notes the announced commitments by the Syrian authorities to reform, and regrets the lack of progress in implementation, and calls upon the Syrian Government to implement its commitments.

The Security Council reaffirms its strong commitment to the sovereignty, independence, and territorial integrity of Syria.

It stresses that the only solution to the current crisis in Syria is through an inclusive and Syrian-led political process, with the aim of effectively addressing the legitimate aspirations and concerns of the population which will allow the full exercise of fundamental freedoms for its entire population, including that of expression and peaceful assembly.

The Security Council calls on the Syrian authorities to alleviate the humanitarian situation in crisis areas by ceasing the use of force against affected towns, to allow expeditious and unhindered access for international humanitarian agencies and workers, and co-operate fully with the Office of the High Commissioner for Human Rights.

The Security Council requests the Secretary-General to update the Security Council on the situation in Syria within seven days.”

Wednesday, July 20, 2011

'Triangle Of Death' In Horn Of Africa



Waiting for food in the Dadaab camp, located in Kenya near the Somali border. Refugees wait patiently at Dagahaley registration center to receive cooking tools and their first food rations.
Source: The Guardian. Picture taken by Matilde Gattoni


Somalia - a failing state suffering from an internal conflict and from the worst drought in half a century - is in crisis. Humanitarian organizations and aid agencies have asked the international community to intervene and offer humanitarian assistance to the victims of drought and famine in the Horn of Africa.

According to the United Nations, the Horn of Africa is experiencing the worst drought in 60 years. The drought, internal conflicts and the failure of the governments to fund agriculture and irrigation projects have led to the threat of starvation of more than 10 million of people [1]. In Somalia one of three children is suffering from malnutrition. At least 500,000 children from the Horn of Africa are severely malnourished and at risk of death [2].

The United Nations have officially declared two parts of Somalia, the Bakool and Lower Shabelle regions, to be in famine. Mark Bowden, head of the UN operation in Somalia, warned that: “If we don't act now, famine will spread to all eight regions of southern Somalia within two months, due to poor harvests and infectious disease outbreaks.[…] Every day of delay in assistance is literally a matter of life or death for children and their families in the famine-affected areas” [3]. U.N Secretary-General Ban Ki-moon stated that nearly 3.7 million people are now in crisis and in order to stop the crisis from deteriorating, “We need donor support to address current needs” [4]. As a result of severe food shortages, failed harvest, rising food prices and conflict in the region, at least 10 million people in the Horn of Africa will be in need of humanitarian assistance, estimates the UN [5].

According to Oxfam, famine has a couple of causes: A "triple failure of food production, people's ability to access food and, finally and most crucially, in the political response by governments and international donors. Crop failure and poverty leave people vulnerable to starvation -- but famine only occurs with political failure."[6]

The political failures which caused the famine do not just concern the failures made by the Eastern African governments but also concern the lack of interest and acknowledgement of the seriousness of the situation at hand among “rich”, Western governments on the northern hemisphere. Oxfam: "Several rich governments are guilty of willful neglect as the aid effort to avert catastrophe in East Africa limps along due to an $800 million shortfall," [7].

The internal conflict in Somalia has a negative and possible disastrous influence on the famine and on the assistance aimed at diminishing the humanitarian catastrophe. The humanitarian agencies have not been able to reach famine-affected areas because the Al-Qaeda linked militant Islamic group, Al-Shabaab, refuses to give access to the areas which are dominated by Al-Shabaab. According to Susan Rice, USA ambassador to the UN , "Al-Shabaab is principally responsible for exacerbating the consequences of the drought situation by preventing its own people from being able to access critically needed assistance". Whereas at the beginning of July, 2011, the Al-Shabaab pledged to allow aid groups access to areas under its control, the militants now refuse to help the aid workers. The Islamic militants have accused the Western humanitarians of being anti-Muslim. The Al-Shabaab fears that foreign assistance will undermine its power in the areas under its control. The disaster has a negative influence on the militant group as well. They fear that the famine drives away the people upon which they depend for tax revenues and military conscription [8].

In the past, the militants have blocked aid workers from helping those in need in Somalia, fearing that foreign assistance would undermine their control.

On the morning of Thursday 28 July, the Somali government took the fight against the Al-Qaeda linked militants. 15 members of the Al-Shahaab group were killed during this offensive. According to David Orr from the United Nations World Food Program, the offensive has not had a hindered the United Nations efforts to help the famine stricken people in Eastern Africa [9].

Relevant Peace Palace Library Keywords

Monday, July 18, 2011

South Sudan: Birth Of A Nation

Update: This post is a follow up of a prior post discussing the secession of Southern Sudan.

On 14th July 2011, South-Sudan became the newest member of the United Nations. On 9th July, South Sudan finally gained independence from Sudan after almost 50 years of devastating conflicts in Northeastern Africa in which more than two million people lost their lives.


Independence came after an internationally backed referendum that was held in January of this year and in which 99 percent of the regions’ voters approved of a split from the Khartoum government in Northern Sudan, thus finally exercising their hard-fought right to self -determination.


After the celebrations wear off, South Sudan faces a future with many challenges and obstacles as it ranks among the worlds’ poorest nations. This blog will briefly discuss the most important difficulties that will lie ahead for the people of South Sudan.


One of the toughest issues to tackle is by far the Abyei region. The Abyei area, rich in minerals and natural resources including oil, is home to the Ngok Dinka people, who are closely allied wth the South, but it is also serves as grazing grounds for the Misseriya tribes from the North. A referendum that was set to determine whether the Abyei area will become part of the South or North was delayed over disagreements on who was eligible to vote. Just weeks prior to independence, fighting broke out which makes the region highly vulnerable to yet another major conflict. Subsequently, on the 27th June, the U.N Security Council voted unanimously to send 7000 peacekeepers en 900 uniformed police to South Sudan in United Nations Security Council Resolution 1990 .


Another major stumbling block involves determining criteria for citizenship. Years of conflict has resulted in large scale internal displacement and many southerners now live in the north and many northerners live south of the new border. The United Nations High Commissioner for Refugees has expressed fears that a significant number of people will be rendered stateless. South Sudan states that it will recognize dual north-south citizenship and has urged the north to reciprocate.


Even though having a constitution is by no means mandory or a guarantee for upholding fundamental rights, in this case it can be considered an essential legal instrument to formalize rules of government. South Sudan has, for the time being, an interim constitution but has not yet agreed upon a final version. Paulos Tesfagiorgis, a constitutional adviser with the International Institute for Democracy and Electoral Assistance, stated that 'without a constitution, South Sudan will struggle to assert its independence within its own borders'. Furthermore, he emphasized that 'a constitution is of extreme importance as it will frame politics, the economy and other policies'.[1]


In spite of all the difficulties, South Sudan is also a country of tremendous possibilities. South Sudan produces about 375,000 barrels of oil per day, and though negotiators continue to work out a specific formula on how the north and the south will share the oil, South Sudan stands to make billions from its reserves. South Sudan also has miles and miles of fertile lands and thick forests rich in fruits and vegetables. [2]


In adittion, for the past six years the Southern Sudanese have proven to be extremely resilient; they have been running their own affairs, patrolling their borders and wooing investments and development aid.


South Sudan will have to built from the ground up and in the process will heavily lean on the support of the international community, especially in the fields of education and health care. The new government of South Sudan should first make it a priority to settle the dispute concerning the Abyei issue by starting proceedings at the International Court of Justice (ICJ). The UN and the two permanent members, China and the USA should because of their strong business interest in the region, endeavour all available means with the UN framework to enforce the ICJ decision.For the government of South Sudan, international law and diplomacy offer the best solution to give its people a future devoid of conflicts and wars.



Footnotes


[1] www.cnn.com


[2] http://www.nytimes.com/


[3] http://www.businessdailyafrica.com/


Sources


http://www.cnn.com/


http://www.nytimes.com/


http://www.rnw.nl/


http://www.khaleejtimes.com/


http://timesofindia.indiatimes.com/


http://www.allafrica.com/


http://www.businessdailyafrica.com/



Image: Khaleej Times Online


Publications in the Peace Palace Catalogue



Politics of Ethnic Discrimination in Sudan; A justification for the secessin of South Sudan by Dhieu Wol / LAP LAMBERT Academic publishing, Saarbrücken, Germany



The South Sudan Defense Force: Patriots, Collaborators or Spoilers? by Matthew B. Arnold in the Journal of Modern African Studies 2007



Sudan's blood memory: the legacy of war, ethnicity and slavery in early South Sudan by Stephanie Beswick in Rochester Studies in African history and the Diaspora, university of Rochester Press 2004



The Abyei Arbitration and the use of Arbitration to resolve inter-state and intra-state conflicts by W.J. Miles and D. Mallett in Journal of International Dispute Settlement Vol 1 (2), p.313-340, 2010