ASIL 2023 Annual Meeting Recap: Protecting Cultural Heritage in Conflict Zones: Multidisciplinary Approaches

By Charles Bjork

This year’s annual meeting of the American Society of International Law in Washington, D.C., concluded with a special panel discussion on Protecting Cultural Heritage in Conflict Zones.  The discussion was held off-site at the National Museum of Asian Art on Saturday, April 1st.  Conference attendees who registered for this special event enjoyed private small-group tours of the museum before it opened to the public.        

            The panel consisted of Patty Gerstenblith, Distinguished Research Professor of Law and Director of the Center for Art, Museum, and Cultural Heritage Law at Loyola University (Chicago) College of Law; Brooke Guven, Head of Environmental, Social, Governance, and Sustainability at Cerberus Capital Management; Richard Kurin, Distinguished Scholar and Ambassador-at-Large at the Smithsonian Institution; and Zaydoon Zaid, President of the American Foundation for Cultural Research.  Tess Davis, Executive Director of the Antiquities Coalition, served as the moderator.

To begin the discussion, Davis asked Kurin to justify devoting time and treasure to protecting cultural heritage in the midst of an armed conflict when there is so much human suffering that needs to be alleviated.  Shouldn’t the humanitarian needs of non-combatants take precedence?  Or, to put it the question another way, isn’t the protection of cultural heritage a luxury that we should only indulge in during peacetime?  Kurin insisted that cultural heritage shouldn’t be seen as a luxury, but rather as an essential source of strength and resilience and strength during times of adversity and suffering.  As an example, he pointed to the makeshift conversion of Kiev’s subway stations into concert venues to provide a safe space for both classical and contemporary music performances while the city is still vulnerable to Russian missile and drone strikes.

Kurin also noted that armed conflicts aren’t fought exclusively over land and natural resources.  Many also have a cultural component.  Indeed, one impetus for Vladimir Putin’s war of aggression against Ukraine is the destruction of its cultural identity as something unique and distinct from that of Russia.  Fortunately, the war seems to have had precisely the opposite effect.  Gerstenblith agreed with Kurin’s remarks about the cultural dimension of warfare, noting that Rafael Lemkin’s original draft of the 1948 Genocide Convention included a cultural heritage provision.  Although this provision was not included in the final draft of the treaty, the fact that it was given serious consideration indicates that the protection of cultural heritage has deep roots in international law.

Gerstenblith provided an overview of the international legal framework for the protection of cultural property.  The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict obligates state parties to adopt protective measures to designate and safeguard cultural property within their respective jurisdictions during peacetime.  It also requires state parties engaged in armed conflict with another state, or occupying the territory of another state, to respect cultural property and refrain from looting or endangering it.  These obligations include the creation of special military units charged with safeguarding cultural property by, for example, creating “no-fire lists” of buildings and monuments that should not be targeted for military strikes.  State parties also are required to enact criminal sanctions for violations of the convention. 

The 1970 UNESCO Convention Prohibiting the Elicit Import, Export, Transfer of Ownership of Cultural Property establishes a framework for state parties to enact preventative measures to combat trafficking in cultural property.  These include periodic inventories, export certifications, trade monitoring, and criminal sanctions.  The treaty also establishes restitution provisions for the recovery of illegally exported cultural property, as well as measures to facilitate cooperation, the exchange of information, and mutual assistance among state parties. 

The bifurcated approach established by these two foundational treaties offers many advantages.  However, complications can arise when a country has ratified one of the treaties but not the other.  For example, in the aftermath of the U.S. invasion and occupation of Iraq in 2003, efforts to combat the destruction and looting of cultural heritage sites initially were hamstrung by the fact that the U.S. had signed but never ratified the 1954 Hague Convention.  As a result, U.S. military personnel were not subject to the same rules and procedures for the protection of cultural property that guided the operations of coalition forces from jurisdictions that had ratified the treaty.  Eventually, U.S. commanders concluded that the only way to effectively safeguard Iraq’s cultural heritage was for the U.S. to voluntarily adopt the rules and procedures specified under the treaty.  This experience provided the impetus for the U.S. Senate to finally ratify the Hague Convention in 2009.

Kurin explained how the belated ratification of the Hague Convention by the U.S., and the subsequent enactment of its implementing legislation, led to the creation of the Cultural Heritage Coordinating Committee (CHCC) by the State Department in 2016.  Building upon the legacy of the “Monuments Men” during World War II, the CHCC coordinates the federal government’s diplomatic, military, and law enforcement initiatives to protect and preserve cultural heritage sites throughout the world, to combat trafficking in illegal antiquities, to disrupt trafficking networks, and to facilitate the lawful exchange of cultural property.  Kurin described the establishment of the CHCC as a game changer that has enabled 16 federal agency partners to more effectively communicate with each other and better coordinate their efforts to safeguard the world’s cultural heritage.

Davis asked Zaid to comment on the ongoing civil war in Yemen and how the situation there differs from recent conflicts in Syria and Iraq.  As in Syria and Iraq, Zaid explained, insurgent groups with political aspirations have been looting cultural heritage sites trafficking in cultural property to finance their operations.  However, the scale of pillage is even greater in Yemen, due to the total collapse of central authority in much of the country.  This power vacuum has opened the door for criminal gangs, with no political agendas, to join the in the looting and trafficking.  The withdrawal of most Western observers and aid workers, due to safety concerns, makes it impossible to accurately monitor what is happening.  Despite this dire state of affairs, a few bright spots have emerged, most notably the recovery of 77 Yemeni cultural objects recently seized by U.S. government, which will be held for safekeeping at the National Museum of Asian Art on behalf of the Republic of Yemen, pending a resolution of the conflict. 

Davis asked Guven to comment on the role of the private sector in protecting cultural property and cultural heritage.  Guven said that there is a common misconception that investors are indifferent, if not actively hostile, to laws and regulations that safeguard cultural heritage.  In fact, many of the wealthy clients of Cerberus Capital Management and other private equity firms also are patrons of the arts.  They don’t want to invest in businesses or projects that cause damage to cultural property or endanger cultural heritage.  The problem is that the executives and fund managers who run Cerberus don’t speak the language of cultural preservation.  Guven described her role as akin to that of a translator.  She makes sure the legal and regulatory frameworks that protect cultural heritage are communicated to the relevant decision makers using terminology that is familiar to people whose background is in finance and accounting (due diligence, liability, risk management, etc.)  Some of her biggest challenges are spotting the potential for investments to damage or endanger cultural property, connecting the dots, and navigating inconsistencies in regulatory regimes among jurisdictions.

ASIL 2023 Annual Meeting Recap: Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 3 of 3)

This is Part 3 out of 3 of a post recapping this session; if you wish to consult the earlier posts, see Pt. 1 and Pt. 2 of the series.

By Charles Bjork

To conclude the discussion, Dadwal asked the panel members to speculate about future of international law in space and in the oceans.  In Pritchard-Kelly’s view, the most effective tools for promoting safety and sustainability in space in the near future will be the national licensing of objects launched into space and the registration of all such objects with the United Nations, as required by the Registration Convention of 1975.  States are responsible for authorizing activities in space undertaken by private actors that are subject their respective jurisdictions, pursuant to Article VI of the 1967 Outer Space Treaty.  States with active space industries accomplish this task through licensing.  A state that has ratified the 1972 Liability Convention assumes absolute liability for damages caused when an object launched into space from its jurisdiction crash lands on Earth and fault-based liability for damages caused when an object launched into space from its jurisdiction collides with another object.  These liability provisions provide strong incentives for states to create robust licensing regimes for private actors that launch satellites into orbit and vehicles into space. 

As concerns about the accumulation of debris orbiting the Earth continue to mount, Pritchard-Kelly anticipates that national licensing authorities will come under increasing pressure to adopt further measures to reduce the volume of debris.  An early example is the rule adopted by the Federal Communications Commission in 2022 that will require the operators of low-orbit telecommunications satellites launched from the United States to de-orbit their defunct satellites as soon as practicable, but no later than five years after a satellite has reached the end of its working life.  Pritchard-Kelly expects licensing authorities in other jurisdictions to follow the FCC’s lead. 

NASA employee, Public domain, via Wikimedia Commons

Villegas contrasted the state of international law governing the oceans with the state of international law governing space.  The successful conclusion of the negotiations to draft a new multilateral treaty to protect marine biodiversity in areas beyond national jurisdictions is an important milestone.  However, assuming that the new BBNJ treaty achieves the requisite number of ratifications to enter into force, its provisions will need to operate in tandem with the provisions of the 1982 Convention on the Law of the Sea, as well as the provisions of treaties that protect marine ecosystems at the regional level.   These in include the Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region and the Barcelona Convention for the Protection of the Marine Environment and Coastal Region of the Mediterranean, among others.  There is a real danger that having so many overlapping and competing legal regimes in place will hinder, rather than advance, the sustainability of marine ecosystems.  States must coordinate their implementation of these treaties in order to ensure that their provisions are applied in a consistent and complimentary manner.

The international legal regime governing the use of space suffers from the opposite problem.  Since the Moon Treaty entered into force in 1982, no new multilateral treaties governing operations in space have been negotiated, nor have any of the prior treaties been amended via protocol.  In the interim, the relentless growth of the satellite telecommunications industry and the emergence of new private sector actors eager to pursue the commercial exploitation of space have exposed significant gaps in the legal framework.  Despite the widely shared consensus that the existing space treaties need to be updated to reflect advances in technology and the growing role of private sector actors, few observers expect that to happen anytime soon, particularly given the rising tensions between the U.S. and the E.U. on the one hand, and China and Russia on the other.

Nelson expressed a more optimistic view on the prospects for change, insisting that the international community of nations is capable of acting in its collective best interest when the need arises.  In fact, it was the intense rivalry between the U.S. and Soviet Union during the space race of the late 1950s and early 1960s that provided the impetus for drafting of the 1967 Outer Space Treaty, which established the core principles that space should be used for the benefit of all people, should not be subject to sovereign claims, and should be kept free of weapons of mass destruction.  Pritchard-Kelly agreed with Nelson’s assessment, noting that the development and advancement of international law is often crisis-driven.  She then described a plausible scenario in which a satellite manufactured in the U.S. for a Latin American customer fails to enter the Earth’s orbit after being launched from the spaceport located in French Guyana operated by Arianespace Group, a consortium of European space companies.  Debris from the satellite is scattered over three countries in East Africa, causing both property damage and loss of life.  An accident like this, involving multiple private actors in multiple jurisdictions, could provide the impetus for updating the Liability Convention to better reflect the growing role of private actors in space.

ASIL 2023 Annual Meeting Recap: Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 2 of 3)

By Charles Bjork

For Pt. 1 of the post recapping this session, see ASIL 2023 Annual Meeting Recap:  Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 1 of 3).

Pritchard-Kelly noted two other important differences between the physical environment of space and the physical environment of the oceans.  First, the oceans are more accessible, making it far less costly and more technologically feasible remove debris from the oceans than it currently is to remove debris from space.  Second, unless plastic debris is removed from the oceans, it will remain there forever.  Space debris orbiting the Earth has a more limited lifespan.  Over time, its velocity will diminish until it eventually falls out of orbit.  When it does, all but the very largest pieces debris will burn up and disintegrate upon contact with the Earth’s atmosphere.  The primary danger posed by most space debris is its potential for colliding with functioning satellites and space vehicles while it remains in orbit. 

Dadwal noted that the European Space Agency recently unveiled its “Zero Debris” initiative, which aims to eliminate the generation of new space debris in low-Earth orbits by 2030.  She then asked the panel members what steps must be taken to meet this ambitious goal.  The good news, as Pritchard-Kelly observed, is that the dangers posed by space debris are now universally recognized and acknowledged.  State actors and private sector actors, regardless of their nationality, want to protect their expensive space assets from damage and loss.  The European Space Agency, NASA, and other national space agencies have responded by adopting soft-law instruments to encourage the adoption of more sustainable practices in the design of new satellites and space vehicles.  Contractors who wish to do business with these space agencies must adhere to their sustainable design principles.  National regulatory bodies that license satellites are increasingly open to enacting sustainable design regulations.  As a result of these soft law and regulatory initiatives, the next generation of satellites are being “designed for demise,” meaning that their component materials and the methods used to construct them are being altered to ensure that they will rapidly burn up when they de-orbit and reenter the Earth’s atmosphere, thereby minimizing the chances that any debris will be left behind.  Nelson stressed that these soft-law instruments have significant limitations and are no substitute for updating the now woefully out-of-date Space Liability Convention of 1972.  Nevertheless, they are a step in the right direction.

NASA image, Public domain, via Wikimedia Commons

Pritchard-Kelly cautioned that even if the European Space Agency’s Zero Debris goal is met, we still have to find ways to remediate the enormous amount of space junk currently in orbit, as well as the new space junk that will be generated when older satellites, that were not built using sustainable design principles, reach the end of their working lives.  Encouragingly, a handful of entrepreneurs have founded start-up companies to determine if there is sufficient demand from the private sector to pay for the removal of space junk on a commercial basis.  It remains to be seen if any of these start-ups will prove to be commercially viable in the long-run. 

An even thornier issue for the international community to resolve is the potential use of anti-satellite (ASAT) weapons to incapacitate or destroy satellites for strategic purposes.  To date, only handful of jurisdictions (the U.S., Russia, China, and, most recently, India) have shot down some of their own satellites to demonstrate their ASAT capabilities.  While no one questions the inherent right of states to defend themselves, the ASAT testing that has been done to date appears to have generated significant amounts of space debris.  The volume of debris, and the potential for it to cause collateral damage, has ended speculation that ASAT weapons could be routinely used to dispose of older, decommissioned satellites.

Dadwal asked Villegas to comment on recent developments in international law governing marine resources and their implications for the future development of space law.  Villegas began with a brief overview of the new multilateral Convention on the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdictions (popularly known as the BBNJ Treaty).  He explained that the new treaty was drafted by the Intergovernmental Conference on Marine Biodiversity convened by the United Nations in 2017.  After nearly six years of negotiations, the Intergovernmental Conference reached an agreement on the text of new treaty on March 4, 2023.  It establishes a framework for the creation of marine-protected areas and the enactment other conservation measures in the high seas, beyond the jurisdictions of individual nation states.  Villegas expects the Intergovernmental Conference to formally adopt the draft text of the proposed BBNJ Treaty at its next meeting in June and to move expeditiously to open the treaty for signature and ratification. 

Last year, at a meeting in Nairobi, the 175 member states of the U.N. Environmental Assembly, the governing body for the U.N. Environmental Program, passed a resolution to draft another new multilateral treaty to reduce plastic pollution.  A key component of the proposed treaty will be to effectively manage the “total life cycle of plastics,” from their initial production, to their reuse, recycling, and disposal in a responsible manner that minimizes the risk of pollution.  This holistic approach to the management of plastics could serve as model for a future convention governing the lifecycle of objects that are launched into space.  Villegas cautioned that significant fault lines have emerged between states that favor binding commitments to reduce the use of plastics and to practice responsible disposal methods and states the favor a more aspirational, soft-law approach. 

Turning next to the ever-expanding role private actors in space, Dadwal asked the panel if this phenomenon helps or hinders efforts to reduce the volume of space junk and promote greater sustainability.  Pritchard-Kelly said there is no question that the commercialization of space will increase the volume of space junk in the short term.  She noted that when the multilateral treaties that govern the use of space were negotiated in the late 1960s and early 1970s, only state actors (and, in practice, only the U.S. and the Soviet Union) had the capacity to launch objects into space.  Shortly thereafter, in the late 1970s, the telecommunications satellite industry began to emerge.  Today, as the number of commercially operated satellites continues to grow, private actors are on the cusp of developing whole new industries, such as space mining, space manufacturing, and even space tourism.  Yet, the existing legal framework for space operations has very little to say about the regulation of private sector actors.

In the absence of a more robust regulatory framework, Pritchard-Kelly anticipates that economic incentives will drive the private sector to embrace greater sustainability.  Villegas concurred with this assessment, noting that companies like Elon Musk’s SpaceX, Jeff Bezos’s Blue Origin, and Richard Branson’s Virgin Galactic are pioneering the development of reusable launch systems and reusable space vehicles.  These new businesses will not be scalable or profitable in the long-term unless recyclable components become the norm, not the exception, in space.  The private sector’s willingness to embrace reuse and recycling – even if motivated more by economic necessity than principle – will significantly reduce the volume of new space junk generated in the future. 

While government regulatory agencies will continue to play an important role in promoting sustainability, Nelson observed that they are subject to significant limitations.  .He cited the turf wars that occasionally erupt between NASA, the Federal Aviation Administration, the Federal Communications Commission, and other federal agencies responsible for overseeing various aspects of the emerging space industries.  He also cited a lack of consistency in regulatory regimes and licensing standards among jurisdictions.  Nelson noted that insurance companies, which act as informal regulators in space, often operate more rationally and predictably than their governmental counterparts, which may be constrained by industry lobbying and political meddling.  Pritchard-Kelly wholeheartedly agreed with Nelson on the critical role played by the insurance industry in promoting safety.  She expects insurers to lead the way in establishing minimum standards of conduct for emerging space industries by penalizing companies whose operations cause accidents resulting in losses and by refusing to insure companies that fail to adopt best practices. 

ASIL 2023 Annual Meeting Recap: Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 1 of 3)

By Charles Bjork

The annual meeting of the American Society of International Law, held each spring in Washington, D.C., usually features at least one panel sponsored by the Space Law Interest Group.  In prior years, some of these panels have focused on the kind of attention-grabbing topics that have inspired generations of Hollywood screenwriters, such as how the nations of the world might respond if scientists determine that an asteroid is on course to strike the Earth and cause catastrophic damage.  The subject of this year’s space law panel was a bit more mundane:  the problem of space junk and what to do about it.  Space junk is defined as any artificial (human-made) object within the Earth’s orbit that no longer serves a useful purpose.  The term encompasses everything from defunct satellites and spacecraft, to the remnants of launch vehicles, to tiny fragments left behind after the disintegration or collision of other pieces of space debris.  Panel members were asked to consider whether, and to what extent, international legal regimes developed to protect marine ecosystems and remediate pollution in the world’s oceans could be applied to address the issue of space junk.        

NASA, CC0, via Wikimedia Commons

The panel consisted of Timothy G. Nelson, a partner at Skadden, Arps, Slate, Meagher & Flom, LLP, specializing in international litigation and arbitration; Ruth Pritchard-Kelly, a senior advisor on regulatory and space policy at OneWeb, a satellite telecommunications network based in London; and Andrés Villegas, co-chair of the International Litigation and Arbitration Division at Sygna Partners (Paris) and a former senior legal advisor at the Ministry of Foreign Affairs of the Republic of Colombia.  Viva Dadwal, an associate attorney at King & Spalding specializing in international arbitration, served as the moderator.

Dadwal provided a contextual framework for the discussion by sharing some rather alarming statistics comparing the enormous amount of plastic waste that has accumulated in the world’s oceans with the rapid proliferation of space junk orbiting the Earth.  Each year more than 300 million tons of plastics are produced worldwide, and at least 14 million tons of plastic waste end up in the world’s oceans.  Plastics now account for roughly 80 percent of all marine debris, from surface waters to deep-sea sediments.  Unlike organic matter, plastics do not decompose and so will remain present in marine ecosystems indefinitely.  Nevertheless, many commonly used plastics are prone to breaking down over time into smaller and smaller particles, known as micro-plastics.  Of the estimated 50 to 70 trillion pieces of plastic in the oceans, the majority of these are micro-plastics.  By 2050, according to some estimates, there may be more plastics in the oceans (by weight) than fish. 

Although space junk is a more recent phenomenon than plastic waste in the oceans, the accumulation of debris orbiting the Earth is no less alarming.  According to models produced by the European Space Agency’s Office of Space Debris, there are currently an estimated 36,500 objects greater than ten centimeters in diameter within the Earth’s orbit.  The volume of smaller space debris is even greater:  an estimated 1 million objects between one and ten centimeters in diameter and an estimated 130 million objects between one millimeter and one centimeter in diameter.  The danger is that repeated collisions of space debris over time could result in a cascade effect, in which larger and larger clouds of accumulated debris will make it increasingly difficult for satellites to operate in Earth’s orbit.  This phenomenon, also known as the “Kessler syndrome,” could, in a worst-case scenario, make it impossible to safely launch new satellites into orbit around the Earth or to safely launch exploratory vehicles into outer space. 

To kick off the discussion, Dadwal quoted from a letter to editor published in the March 10^th issue of Science magazine, in which several prominent scientists asserted that, like the high seas before it, the Earth’s orbit is being treated as a global commons, and that the exploitation of what appears to be a free resource obscures the true cost of environmental damage.  The authors of the letter went on to call for international cooperation to address the urgent need to reduce the volume of space debris before the Earth’s orbit suffers the same fate as the world’s oceans.  Dadwal asked Nelson if he agreed with the underlying premise of the scientists who wrote the letter to the editor, namely that the international legal regimes developed to protect the world’s oceans can be applied to remediate environmental damage in space.

Nelson agreed with the underlying premise in principle.  Nevertheless, he emphasized that there are critical differences between the physical properties of space and those of the world’s oceans.  These differences are easily obscured by pop cultural references that equate space travel with maritime navigation.  Long before space exploration became a reality, science fiction writers deployed maritime terminology to describe what are now universally referred to as spaceships.  So ingrained in our popular culture are these maritime metaphors (These are the voyages of the starship Enterprise.) that it is tempting for the casual observer to assume that space law can simply adopt the legal paradigms designed to safeguard the oceans.  In practice, Nelson noted, these paradigms must be modified to reflect the profound physical differences between the maritime environment and the space environment.

Foremost among these physical differences is the fact that space debris orbiting the Earth at very high speeds possesses enormous amounts of kinetic energy.  As a result, even debris as small as one centimeter in diameter has the potential to cause catastrophic damage if it collides with a satellite or a space vehicle.  Any new legal regimes developed to address the problem of space junk must take this intrinsic danger into account.  In contrast, human-made maritime debris, known as flotsam and jetsam, poses little risk to travel and shipping on the high seas.  Larger ocean-going vessels can sail through it, and smaller vessels can navigate around it. 

ASIL 2023 Annual Meeting Recap : “International Law as a Tool Against Democratic Backsliding”

By David Isom

In recent years, events in countries including Brazil, Hungary, India, Indonesia, Israel, Poland, the Philippines, Russia, Turkey, the United States, and many others have led to fears that democracy worldwide is backsliding. With antidemocratic leaders co-opting the language of human rights to serve their own purposes, can international law guide the public regarding what really are and aren’t matters of human rights? Can international law offer protection for human rights defenders who are increasingly under attack, both figuratively and literally? In the face of democratic backsliding, what role can national courts play in promoting human rights? At this year’s American Society of International Law Annual Meeting in Washington, DC, Professor Diane Desierto of Notre Dame Law School moderated a session titled “International Law as a Tool Against Democratic Backsliding” which addressed such questions and the broader role that international law might play in countering antidemocratic trends.

The panel featured Shahrukh Alam, a human rights advocate at the Supreme Court of India; James Cavallaro, Executive Director of the University Network for Human Rights and a lecturer at Yale Law School; Professor Olabisi Akinkugbe of Dalhousie University Schulich School of Law; and Omar Shakir, Israel and Palestine Director at Human Rights Watch. The discussion of how a diverse range of groups (theocrats in the United States, Hindu nationalists in India, neo-imperialists in Russia) have all sought to justify their positions using the language of human rights law was fascinating, and it was interesting to hear the panelist’s views of how democratic backsliding is or is not happening in the countries on which they focus. As always, time constraints prevented the discussion from delving deeply into the subject, but it was a very strong session on a timely topic and a highlight of the conference.

From left to right: Diane Desierto, Olabisi Akinkugbe, Omar Shakir, James Cavallaro, Shahrukh Alam (on screen)

Participating from India by video, Alam began the discussion by calling the use of the vocabulary of human rights law to justify antidemocratic action as an “autoimmune disorder of democracy,” citing hate speech in India by the ruling caste and the Bharatiya Janata Party towards the country’s Muslim minority as an example. Further aggravating this problem, Alam said, is the colonial criminal justice system India inherited, which puts arrest at the beginning of the procedural process rather than at the end of an investigation: police can keep people in prison for 90 days without charges, and holders of public office are immediately suspended from such roles—making it a powerful weapon against political enemies. Increasingly, arrests for ordinary acts of speech and protest—particularly of Muslims and members of lower castes—are being made under the special terror acts instituted in the wake of the 2008 Mumbai attacks, which allow detention on terror charges for up to 180 days.

Cavallaro said that the human rights movement has traditionally advocated for a thin notion of human rights, primarily by reacting to atrocities—environmental and economic justice did not have much of a presence in human rights activism until relatively recently. Vladimir Putin—who has justified Russian aggression on the grounds of “self-determination of the Russian people”—does not have a monopoly on distorting human rights law—so how can ordinary people distinguish between what are real human rights issues and what aren’t? Few media sources are capable of covering this well, but we can delegate to human rights organizations that work to document such phenomena. Finally, he said, the fact that the terminology of human rights law has been co-opted should be seen as a sign of its arrival as a real influence.

Akinkugbe pointed out that democratic backsliding isn’t happening everywhere—for example, the governments in Kenya, South Africa, and Nigeria have allowed recent protests by opposition parties (though recent events in Zambia and elsewhere show that this is not the case across all of Africa). He also observed that democratic backsliding happens differently in different places, and said that we should distinguish the co-optation of human rights language by political parties trying  to rally their bases from actual democratic backsliding. In various national courts in Africa, claimants have adopted the language of human rights to get a foothold in court, and such “democratized disinformation” continues to be a challenge.

Shakir stated that while it might be fair to say that democracy specifically for Israelis has backslided, it’s more difficult to say this in the broader regional context, as democracy for Palestinians has been lacking for decades. He agreed that the general public might well be persuaded by human rights offenders who claim that they are following human rights doctrine, but said that the work of factfinders like Human Rights Watch is the best remedy, citing the 2018 Gaza protests (with war crimes by both Israeli armed forces and Palestinian armed groups documented by Human Rights Watch) as an example. Shakir also noted that as a region, the Middle East has few mechanisms for human rights (no regional human rights court, and little respect for human rights in domestic courts), which allows such atrocities to go unchecked.

ASIL Annual Meeting 2021: BLM and International Human Rights Law: The Challenge of Systemic Racism

By Sue Silverman

This interdisciplinary panel on the Black Lives Matter movement and international human rights law examined the problem of racism from four perspectives: how racism manifests itself in economic and social data; how racist structures affect us psychosocially; the role of and shortcomings of international law and the “law” writ large in addressing acts of racism; and how international human rights law could be operationalized in legal and advocacy efforts.  

Professor Anna Spain Bradley, Vice Chancellor for Equity, Diversity and Inclusion at UCLA and Vice President of ASIL, reminded the audience what racism is and how it manifests itself: racism appears in economics, political rights, health disparities, and as threats to national security.  Racism is demonstrated through acts of ethnic cleansing, segregation, apartheid, and colonialism. Racism’s form is structural, institutional, interpersonal, and internalized. The law however – whether it is international human rights law such as the Convention on the Elimination of Racial Discrimination, or federal constitutional law – does not reflect this global understanding of racism.  The CERD focuses on racial discrimination, not racism per se, and links discrimination to an act which in turn is linked to a purpose or an effect.  At the federal level, the Fifth Amendment requires proof of intent to discriminate and that the intent was a motivating factor in the decision to discriminate.  These limited definitions often fall short of addressing the problem of racism when it occurs.  Professor Spain Bradley pointed to the arrest of Georgia state Representative Park Cannon just days before the conference as an example of how these definitions fall short.  The world may look at what happened to Rep. Park Cannon and call it racism, but the law is not equipped to address it as such. How do we, under the law, adjudicate what is right and wrong, and how can we account for Rep. Park Cannon’s human rights? Here is where the system, as Professor Spain Bradley put it, gets “stuck.”    

It is not only when addressing acts against individuals that the law appears ill-equipped to address the problem of racism.  As Reginald Noël, an economist at the U.S. Department of Labor, laid out, racism presents itself in nearly every measurement of economic success.  From the wealth and income gaps to rates of home ownership, marriage, and unemployment, we see stark evidence of racism in our society.  We know these disparities are rooted in structural racism and as Noël noted, the Black Lives Matter movement has exposed how white privilege inhibits movements towards true equity.  Those who have higher incomes and inherited wealth are not inclined to change the structures that benefit them, even if this means the continuing oppression of black, brown, and indigenous people.  

To understand the insidiousness of structural racism, it helps to understand the psychosocial underpinnings of racism.  Professor Jordan Robert Axt explained how just living within the context of a racist environment where we are constantly exposed to messages about structural disparity and inequality automatically reshapes our mind. This is made evident in experiments measuring implicit bias. Studies such as Project Implicit, of which Professor Axt is the Director of Data & Methodology, demonstrate that while individuals may explicitly reject racism, their automatic assumptions – i.e., their implicit bias – may still counter their conscious beliefs.  How then do we change individuals’ implicit (and explicit) biases?  While the focus used to be on changing the minds of individuals, studies have shown this to be exceedingly difficult. Rather, if we want to change an individual’s biases, we must change the context within which individual biases are fostered. That is, we must focus on institutions, not individual minds.  

How do we change institutions? One way is by changing the norms within which they operate.  Professor Axt noted the bidirectional relationship between perceptions of social norms and changes in attitudes and behaviors – people look to legislation and institutions to infer what social norms are acceptable.  Here is where international law may play an important role. As Professor Bradley Spain noted, while international law may not force nations to act in a certain way, it does set norms. By changing norms, we can change minds, and by changing minds, we can change behaviors. International law, in setting norms for how nations can and should respect the human rights of individuals living within their jurisdiction, can influence individual expectations and ideas about what constitutes a just society.       

Professor Ahilan Arulanantham, a human rights lawyer and professor at UCLA, explained how advocates might operationalize international human rights treaties such as CERD in their fight against racism.  While CERD has not been adopted into federal law, there are steps that the Biden Administration could take to incorporate CERD into federal acts.  For example, President Biden could issue an executive order requiring all federal agencies to act in compliance with CERD.  Professor Arulanantham also noted how local governments can adopt (and have adopted) international human rights treaties such as CEDAW and the Universal Declaration of Human Rights.  We can also press for legislation that draws from CERD and other human rights treaties.   Professor Arulanantham noted that despite its inefficiencies, CERD is more expansive in its definition of racial discrimination than federal constitutional law. Though imperfect, it is still a standard that the United States at the federal and local levels could reach for as we strive to achieve justice and accountability for acts of racism. 

The overriding message from this brilliant panel of experts is if we want change, we must change structures and institutions; individual minds are not enough.  Towards the end of this session, Professor Bradley Spain asked all of us to ask ourselves: where do people get “stuck” in our fields and is there anything we can do to push things forward?  Whether we are scholars or advocates in international law, constitutional law, or any legal or non-legal field, we must examine the contexts and structures within which we live and operate and how can we change these structures to create a more just and equitable society. 

Call for Reviewers: ASIL 2021

Hi everyone,

As you all know, the 2021 Virtual Annual Meeting of the American Society of International Law (ASIL) is happening in two weeks. This year’s theme is Reconceiving International Law: Creativity in Times of Crisis and it will take place on March 24-26, 2021. If you are attending, please do consider writing a review for our blog. You can write about the entire annual meeting or a particular session. Please let us know, and we will plan accordingly.

Should you have any questions, concerns, ideas, etc., please do reach out to Jessica Pierucci (jpierucci@law.uci.edu) and Marcelo Rodríguez (marcelorod@email.arizona.edu).

Looking forward to reading all your insightful reviews!

Call for Reviewers: ASIL 2021

Hi everyone,

As you all know, the 2021 Virtual Annual Meeting of the American Society of International Law (ASIL) is happening in two weeks. This year’s theme is Reconceiving International Law: Creativity in Times of Crisis and it will take place on March 24-26, 2021. If you are attending, please do consider writing a review for our blog. You can write about the entire annual meeting or a particular session. Please let us know, and we will plan accordingly.

Should you have any questions, concerns, ideas, etc., please do reach out to Jessica Pierucci (jpierucci@law.uci.edu) and Marcelo Rodríguez (marcelorod@email.arizona.edu).

Looking forward to reading all your insightful reviews!

ASIL 2019 Recap: Litigating Climate Change: New Legal Challenges

By Mariana Newman

At 9:00am on Friday, March 29, 2019, Judith Levine, Senior Legal Counsel at the Permanent Court of Arbitration in The Hague, moderated a panel discussion which addressed, in her words, the role for lawyers to address climate change when political leaders do not. Joining Levine were Michael Gerrard, Andrew Sabin Professor of Professional Practice at Columbia Law School and director of the Sabin Center for Climate Change Law; Kristin Casper, Senior Legal Counsel for Strategic Litigation at Greenpeace International; and Paula Henin, a senior associate at Freshfields in New York working in the international arbitration group. In her opening remarks, Levine said that litigation in this area is an opportunity for lawyers to demonstrate “courage, creativity, and innovation.”

Gerrard highlighted a number of areas of litigation. Around 1300 climate lawsuits have been filed around the world, with the United States leading the way in the number of suits, followed by Australia and the United Kingdom.

In the United States, the largest number of cases filed have been under the National Environmental Policy Act, claiming an insufficient consideration of climate change in environmental impact reports.

Gerrard mentioned that public nuisance doctrine cases have reemerged under state common law, since the Supreme Court had held in American Electric Power v. Connecticut that the Clean Air Act displaced any federal common law claims.  There have also been securities fraud lawsuits, mostly against Exxon.

Gerrard discussed an ongoing case brought under public trust doctrine and substantive due process theories, Juliana v. United States. In that case, young people sued the United States government arguing that it has an obligation to protect the atmosphere and seeking an order that would force the government to aggressively cut back on greenhouse gas emissions. Currently the 9th Circuit interlocutory appeal is being briefed.

He then turned to cases from outside the United States, including Urgenda Foundation v. State of the Netherlands. In that case, a Dutch environmental group and 800 Dutch citizens sued their government, arguing that it was not doing enough to reduce its greenhouse gas emissions. The trial court ruled that the government had violated their duty of care under Dutch law to take climate change mitigation measures. The appellate court affirmed the judgment for the plaintiffs under different grounds: that the government had an obligation under Articles II and IX of the European Convention on Human Rights to do more to fight climate change. This case is now being appealed to the highest court in the Netherlands.  Gerrard also discussed cases in Pakistan and Peru.

Next, Kristin Casper from Greenpeace International took to the podium. She described climate change as a “human rights crisis” and highlighted three of Greenpeace’s cases where local communities are using legal tools to “seek climate justice.”

In Norway, Greenpeace Nordic partnered with a Norwegian organization that sued the government, arguing that the issuance of oil and gas leases in Arctic waters was in contradiction with Norway’s international commitments and a breach of constitutional protections for future generations, the right to a healthy environment, and other human rights standards. The lower court found that the right to a healthy environment was, as Casper called it, a “claimable right with teeth,” but it did not find that the right was violated in this particular factual scenario. The case has been appealed.

In Switzerland, Greenpeace Switzerland supported a group of over 1000 senior citizen women who brought a case arguing that the government’s inadequate climate change policies contributed to heatwaves, putting their lives and health at risk. The decision in the lower court was not favorable, but the case is now on appeal.

In the Philippines, a group of Typhoon Haiyan survivors joined by Greenpeace Southeast Asia-Philippines and other organizations filed a legal petition with the Commission on Human Rights, seeking to hold major carbon-producing companies accountable for climate impacts that result in human rights harms. There have been 12 hearings, 26 community witnesses, and 52 experts who have given evidence, all of which can be viewed online.  The Commission has the ability to issue a report with recommendations and to continue to monitor the human rights situation in the Philippines with respect to climate change.

Finally, it was Paula Henin’s turn to share her insights.  First, she discussed mechanisms for interstate disputes arising out of substantive obligations of the Paris Agreement.

Article 14 of the United Nations Framework Convention on Climate Change is incorporated by reference in Article 24 of the Paris Agreement. Article 14-1 allows parties to settle disputes through negotiation and the peaceful means of their own choice, which could include arbitration or mediation. Article 14-2 states that contracting parties may consent by a separate written instrument to the compulsory submission of disputes to the International Court of Justice and/or to arbitration in accordance with procedures to be provided in an arbitration annex to be adopted by the Conference of the Parties “as soon as possible.” However, no arbitration annex has yet been adopted.

Henin also described the possibility for the UN General Assembly to refer legal questions to the International Court of Justice for advisory opinions. There has been discussion of using that mechanism for climate change issues.

Next Henin turned to disputes involving private actors. Most investor-state disputes go to arbitration under treaties or under investment contracts. In the arena of treaty-based arbitration, Henin said that there have been over 40 claims brought against Spain, Italy, and the Czech Republic after those states backpedaled on incentive schemes put in place to promote renewable energy levels. She said that some recent arbitral decisions have opened the door for a new mechanism in investor-state arbitration: environmental counterclaims against investors brought by states. Investment contracts may incorporate specific emission reduction obligations or arbitration clauses may be included in contractual commitments that arise directly out of Kyoto Protocol mechanisms like carbon emission trading or climate finance.

To conclude the panel, Casper exhorted the attendees to devote their intelligence and resources to working to make progress on climate change.

ASIL 2019 Recap: Regional Human Rights Bodies as Instruments of International Law: Contradiction and Fragmentation

By Caitlin Hunter

Organization of American States

In Regional Human Rights Bodies as Instruments of International Law: Contradiction and Fragmentation, panelists discussed fragmentation among the three major regional human rights courts: the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court on Human and Peoples’ Rights (ACtHPR). Elena Abrusci provided insights from her research at the University of Essex’s Human Rights Centre. Silivia Serrano Guzmán and moderator Christina Cerna drew on their experiences working for the Inter-American Commission on Human Rights. Finally, Thomas Antkowiak drew on his work advocating before the IACtHR and ACtHPR as director of the International Human Rights Clinic at Seattle University School of Law. The panelists provided detailed, meticulously researched analysis of what fragmentation is; why and when it happens; and its impact.

1. What is fragmentation?

Fragmentation occurs when international tribunals reach conflicting decisions on how to apply international law to similar scenarios.

2. Why does fragmentation happen?

Abrusci identified two primary reasons:

• Different judges. Abrusci’s data suggested that judges on the IACtHR and the ACtHPR are worldlier than their counterparts on the ECtHR. 70-80% of ACtHPR judges and 50-60% of IACtHR judges had received their legal education on another continent, mostly in Europe. In contrast, less than 10% of ECtHR judges had received their legal education outside of Europe. Similarly, 10-20% of ACtHPR and IACtHR judges had worked for a UN human rights body but less than 4% of ECtHR judges had done so.
• Different deference standards. The ECtHR applies the margin of appreciation doctrine, which allows states some flexibility in applying the European Convention on Human Rights (European Convention) and takes into account the current consensus among European states. In contrast, the IACtHR applies the conventionality control doctrine, which requires all states to fully comply with the American Convention on Human Rights (American Convention).

3. When does fragmentation happen?

Rarely. Panelists agreed that convergence is the norm and fragmentation is the exception. The IACtHR routinely looks to ECtHR jurisprudence and the ECtHR has looked to IACtHR jurisprudence in areas where it is more developed, as when the ECtHR adjudicated forced disappearances in Kosovo. However, panelists identified several notable examples of fragmentation:

• Same-sex marriage. The ECtHR observed that most European states do not allow same-sex marriage and, applying the margin of appreciation, declined to interpret the right to marriage to include the right to same-sex marriage.[1] In contrast, the IACtHR explicitly rejected the ECtHR’s reliance on consensus and suggested that the right to marriage also applies to same-sex couples.[2]
• The right to a criminal appeal. A protocol to the European Convention explicitly states that the right to a criminal appeal does not apply if the defendant is convicted by the country’s highest court or after an acquittal is overturned.[3] In contrast, the IACtHR has held that the right to an appeal applies in both of these situations.[4]
• Indigenous property rights. The ECtHR has repeatedly failed to acknowledge indigenous collective property rights, ignoring not only well-developed IACtHR jurisprudence, but also an ILO convention and UN resolution.[5]
• Reparations to victims. The ECtHR provides only a limited set of primarily financial remedies, while the IACtHR employs holistic remedies such as ordering the state to build medical centers, provide victims with scholarships, and formally apologize. Generally, panelists preferred the IACtHR’s approach but acknowledged that the IACtHR had sometimes ordered reparations so broad that they were effectively impossible to implement, as when the IACtHR ordered Honduras to ensure that all of its hundreds of prisons complied with all international human rights laws.

There are also notable examples where the courts have fragmented and then re-converged:

• Access to information. The IACtHR interprets the right to freedom of expression to include a right to access to information.[6] The ECtHR initially rejected this view[7] but has gradually moved towards it, invoking the margin of appreciation and the growing consensus of European states in favor of access to information.[8] Paradoxically, although the ECtHR’s margin of appreciation typically causes fragmentation, here it permitted the ECtHR to converge towards the IACtHR.
• The right to life. Under the IACtHR’s vida digna (dignified life) doctrine, the right to life incorporates social, economic, and cultural rights, such as the rights to food, shelter, and work. Although the UN Human Rights Committee has adopted the vida digna doctrine,[9] the ECtHR has generally ignored it and the ACtHPR has explicitly rejected it.[10] Advocates for social, economic, and cultural rights argue that treating them as a subset of the right to life subordinates them to civil and political rights and hinders their individual conceptual development. The IACtHR has begun to converge with the other two courts, applying the vida digna doctrine only to especially vulnerable groups, such as homeless children,[11] and finding alternative strategies to incorporate social, economic, and cultural rights.[12]

4. Is fragmentation bad or good?

Like the panelists on the earlier Fragmentation in International Data Protection Law panel, panelists did not believe that fragmentation was inherently bad. In fact, panelists argued that some fragmentation among the regional human rights courts could help propel the development of new theories in international human rights law.

 

[1] Schalk and Kopf v. Austria, App. No. 30141/04, Eur. Ct. H.R. (2010), http://hudoc.echr.coe.int/eng?i=001-99605; Chapin and Charpentier v. France, App. No. 40183/07, Eur. Ct. H.R. (2016), http://hudoc.echr.coe.int/eng?i=001-163436.

[2] State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-Sex Couples, Advisory Opinion OC-24/17, Inter-Am. Ct. H.R. (ser. A) No. 24 (Nov. 24, 2017), http://www.corteidh.or.cr/cf/Jurisprudencia2/busqueda_opiniones_consultivas.cfm?lang=en.

[3] Article 2(2) of the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No.117, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/117.

[4] Barreto Leiva v. Venezuela, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 206 (Nov. 31, 2009), http://www.corteidh.or.cr/docs/casos/articulos/seriec_206_ing.pdf; Mohamed v. Argentina, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 255 (Nov. 23, 2012), http://www.corteidh.or.cr/docs/casos/articulos/seriec_255_ing.pdf.

[5] Elena Abrusci, Judicial Fragmentation on Indigenous Property Rights: Causes, Consequences and Solutions, 21 The International Journal of Human Rights 550–564 (2017), https://doi.org/10.1080/13642987.2017.1307830.

[6] Claude-Reyes et al. v. Chile, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 151 (Sept. 19, 2006), http://www.corteidh.or.cr/docs/casos/articulos/seriec_151_ing.pdf.

[7] Leander v. Sweden, App. No. 9248/81, Eur. Ct. H.R. (1987), http://hudoc.echr.coe.int/eng?i=001-57519.

[8] Magyar Helsinki Bizottság v. Hungary, App. No. 18030/11, Eur. Ct. H.R. (2016), http://hudoc.echr.coe.int/eng?i=001-167828.

[9] General Comment 36, para. 3 (2018), https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf.

[10] African Commission on Human and Peoples’ Rights v Kenya, App. No. 006/2012, Judgement, 26 May 2017, para. 154, http://www.african-court.org/en/images/Cases/Judgment/Application%20006-2012%20-%20African%20Commission%20on%20Human%20and%20Peoples%E2%80%99%20Rights%20v.%20the%20Republic%20of%20Kenya..pdf.

[11] Villagrin-Morales et al. v. Guatemala, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 63 (Nov. 19, 1999), http://www.corteidh.or.cr/docs/casos/articulos/seriec_63_ing.pdf.

[12] Lagos del Campo v. Peru, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 340 (Aug. 31, 2017), http://www.corteidh.or.cr/docs/casos/articulos/seriec_340_esp.pdf.