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.