ASIL 2018 Recap: International Law as a Tool in the Fight Against IUU Fishing and Seafood Slavery

By Jessica Pierucci

The Friday, April 6, 2018 ASIL Annual Meeting panel International Law as a Tool in the Fight against IUU Fishing and Seafood Slavery provided a look at illegal, unreported, and unregulated (IUU) fishing and seafood slavery issues from the perspectives of esteemed panelists who engage with these topics from different vantage points. Nick Renzler, Foley Hoag LLP, moderated the panel.

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Judge Tomas Heidar of the International Tribunal for the Law of the Sea speaks at the ASIL Annual Meeting on Friday, April 6, 2018.


Judge’s Perspective: Background on IUU Fishing

Judge Tomas Heidar, a member of the International Tribunal for the Law of the Sea (ITLOS) since 2014, provided background on IUU fishing issues. Judge Heidar explained there is no universally accepted definition of IUU fishing, but the most widely adopted definition is contained in the IPOA-IUU, 2001. IPOA-IUU contains measures aimed to deter and eliminate IUU fishing through state cooperation.

One way to combat IUU fishing is port state measures blocking vessels engaged in IUU fishing from unloading at a state’s docks. If widely adopted, this can make IUU fishing not profitable by forcing IUU fishing vessels to travel great distances to find a dock that will accept them. This is one of the general purposes of the 2009 FAO Port State Measures Agreement. The agreement broadly defines terms, such as “fishing related activities,” to encourage expansive enforcement. States were initially slow to ratify so the agreement only entered into force in 2016 once 25 parties had ratified, but since entry into force ratification has sped up and there are now 53 parties.

One agreement to keep an eye on is the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. Negotiations just concluded in November 2017 and signature is expected in 2018.

Academic Perspective: ITLOS 2015 Advisory Opinion

Nilufer Oral, Istanbul Bilgi University Law Faculty and United Nations International Law Commission, focused on a major recent development in IUU fishing, the ITLOS 2015 Advisory Opinion. This is a landmark opinion for a couple reasons.

First, this is the first time the full tribunal has issued an advisory opinion.

Second, the opinion clarifies flag state responsibilities under UNCLOS, in particular explaining that flag states must meet due diligence obligations in exercising control over the ships flying their flag. IUU fishing is not specifically mentioned in UNCLOS, but the advisory opinion seeks to include IUU fishing under UNCLOS, although some commentators believe more detail would have been helpful on this point.

While this is a landmark opinion, it is only an advisory opinion. Oral believes it’s time to bring a contentious case to more powerfully use international adjudication to combat IUU fishing.

State Perspective

Alexa Cole, U.S. NOAA, Office of General Counsel, Enforcement Section, spoke about IUU fishing from the state perspective. NOAA is fortunate to have thirteen prosecutors working in this area. This relatively high number allows NOAA to attend Regional Fisheries Management Organizations (RFMO) meetings and be directly engaged in negotiating enforcement measures. This, in turn, better allows NOAA to engage in enforcement. RFMO goals include encouraging management of relevant species; creating monitoring, control, and surveillance (MCS) measures, such as expanding high seas boarding and inspection; and creating compliance monitoring schemes.

In the big picture, Cole believes major international agreements play an important role setting global standards, but they suffer from being tough to negotiate. This challenge leads them to become stale as they are not renegotiated to address new issues. For example, UNCLOS’s discussion of “hot pursuit” does not take into account new technology. As a result, new issues need to be addressed in alternate ways. For example, the Western & Central Pacific Fisheries Commission (WCPFC) coordinates sharing vessel monitoring data, which allows sharing on hot pursuit and other issues.

Corporate Perspective

Anbinh Phan, Director of Global Government Affairs, Walmart Corporation, provided the corporate perspective. Walmart takes a multi-stakeholder approach. The company is a Seafood Task Force member and committed to only selling seafood from sources certified by a third party by 2025. They also supported an International Justice Mission study. Looking to the future they hope to work toward preventing forced labor in the first place, use technology to disrupt the industry, and see the need for international and national law to create solutions.

Litigator Perspective

Agnieszka Fryszman, Cohen Milstein, LLP, provided the litigator’s perspective. As background, Fryszman pointed to the ILO Caught at Sea Report. Fryszman shared frustrations with how trafficking aboard seafood vessels may not be discovered at U.S. ports because of U.S. laws prohibiting those on board from exiting the boat.

Fryszman recently litigated Sorihin and Abdul Fatah v. Thoai Van Nguyen dba Sea Queen II, Case No. 16-5422, in the U.S. District Court for the Northern District of California. In this case two Indonesian men jumped ship in San Francisco, California to escape and then sued the ship’s captain for horrible working conditions. They settled the case and included in the settlement requirements that the captain establish a code of conduct and distribute a help card to employees to prevent similar incidents. The Associated Press is following up on implementation and Fryszman is waiting to hear if the captain has implemented the settlement requirements.

Fryszman noted one of the major challenges with this litigation is jurisdictional. They were only able to assert jurisdiction over the ship’s captain because he’s from San Jose, California, even though there were many other culpable parties. Fryszman sees jurisdiction as a major barrier to successful seafood slavery litigation.

Fryszman located just two other related cases: one in New Zealand and one in Thailand.

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An audience member asks a question to the panel at the International Law as a Tool in the Fight Against IUU Fishing and Seafood Slavery session at ASIL 2018.

Closing

In Q&A, one attendee asked if more international agreements are needed. The panelists generally agreed there isn’t a strong need for more international agreements on this issue right now. Instead they want a focus on domestically implementing the agreements already in place to effectively impose liability. It appears the next frontier for IUU fishing and seafood slavery is finding the best ways to use courts to implement the law in these areas.

ASIL 2018 Recap: Rule-Making By International Organizations

By Caitlin Hunter

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Rule-Making By International Organizations, on Friday, April 6th, explored the key role specialized international organizations play in creating highly influential soft law. A wide variety of international organizations create rules, including:

1. The International Labour Organization (ILO): Tomi Kohiyama (Deputy Legal Adviser, ILO) described how the ILO sets labor standards that protect the basic rights of workers, including their 1998 Declaration on Fundamental Principles and Rights at Work and 2008 Declaration on Social Justice for a Fair Globalization. The ILO standards are routinely incorporated into trade treaties. Additionally, the ILO supervises member states’ reports on their compliance with labor standards. José Alvarez (Professor, NYU Law) said that ILO was also a pioneer in its efforts to challenge state centrality, regulating private organizations and individuals directly through documents such as the Maritime Labor Convention.

2. The International Organization for Standardization (ISO): Mary Saunders (Vice-President for Government Relations and Public Policy, American National Standards Institute) explained that the ISO has developed over 2000 standards, including anti-bribery and social responsibility standards. National standards bodies from over 161 countries participate in creating standards that are designed to function in both mature and developing economies.

3. The World Health Organization (WHO): Both Alvarez and Nicola Bonucci (Director for Legal Affairs, Organisation for Economic Cooperation and Development) noted the influence of WHO guidelines. Although WHO guidelines are not directly binding, they are routinely cited in both national and international adjudication. In particular, WHO guidelines and amicus briefs played a key role in obtaining judgments against Phillip Morris. Fearing a similar negative impact, the sugar industry strenuously attempted to initiate a backlash against WHO sugar guidelines.

4. The Organisation for Economic Co-operation and Development and the International Finance Corporation, which provide guidance on economic and social development issues that include agriculture, the environment, and gender equality.

5. The Basel Committee, which sets widely followed banking standards.

6. The United Nations High Commissioner for Refugees, whose refugee status determinations are binding in all but name.

The panelists made the following points:

1. The distinction between soft and hard law is weakening. Hard law is softening, as treaties increasingly provide non-binding guidelines and allow states to achieve the substantial equivalent of obligations. On the other hand, soft law is hardening due to the increasing organizational obsession with benchmarking. It’s no longer accurate to claim that courts and police are necessary to enforce international law. Monitoring, reporting requirements, peer pressure, and naming and shaming are often (although admittedly not always) effective in ensuring compliance. When advising client or seeking to establish international norms, attorneys must consider both hard and soft law.

2. Inclusiveness is vital to maintaining legitimacy. Many traditional international organizations are not necessarily effective at consulting and informing stakeholders and decisions may be dominated by the stakeholders with the loudest voices. In contrast, ISO strives to include all materially interested affected parties from all of its member states. Standards bodies from developing countries make up the vast majority of ISO members and serve as a key source of ideas. Of course, inclusiveness is not always easy and Saunders acknowledged that some countries were better at getting stakeholder input than others. Likewise, Kohiyama noted that ILO members have a mandate to collaborate but sometimes lack the political will.

3. Responsiveness to change is also vital to maintaining legitimacy. ISO reviews its standards every five years to ensure that they are current. The ILO recently reformed its constitution and standing orders to better reflect the modern world, abrogating obsolete standards for jobs that have not existed since the early 1900s.

4. Coordination between soft law organizations is not always easy. Alvarez noted that international organizations have differing paths and goals and often attempt to defend their turf. He also pointed out that many organizations that create soft law ignore soft norms intended to regulate international organizations. In contrast, Bonucci defended the importance of competition, emphasizing that the free market of ideas creates a wide variety of options.

Clearly, the details of soft law rule-making are continually evolving. Just as clearly, however, soft law is taking on an increasingly important role in international law.

From the Reference Desk: “Can You Strip Mine An Asteroid?”

By Lora Johns

“Can you strip mine an asteroid?”

Last week at my law school, a room full of law students (and at least two law librarians) pondered this question, posed—rhetorically—by a NASA attorney.

It turns out that NASA needs a lot of different kinds of lawyers. Some do the kinds of law you’d expect of a federal agency—government contracts, employment law, administrative law. Some do intellectual property, which makes sense when you think of how many inventions come out of NASA.

And some practice international space law.

(Incidentally, I may need to reevaluate my career choices.)

It’s not just science fiction. Space law is very real—and it’s more relevant than ever. No doubt you’ve heard about SpaceX’s unprecedented successful launch of a Tesla Roadster into orbit. But space law as a field goes back much further. It began in October 1957, when the Soviet Union launched Sputnik, the world’s first ever man-made satellite, into orbit. This astonishing feat accelerated the Space Race—and raised international concerns over the peaceful use of outer space.

Two years after Sputnik, the United Nations created the Committee on the Peaceful Uses of Outer Space. COPUOS helped create the five major treaties that still govern space law today:

  • The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty“).
  • The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the “Rescue Agreement“).
  • The 1972 Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention“).
  • The 1975 Convention on Registration of Objects Launched into Outer Space (the “Registration Convention“).
  • The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Treaty“).

The history of space law is too rich and fascinating to be covered in one short blog post. But to address the titular question—whether it’s okay to exploit an asteroid’s natural resources—the answer is… maybe. In 2015, the U.S. Congress passed the first law for space mining, the Commercial Space Law Competitiveness Act. But that domestic law arguably conflicts with the Moon Treaty, which attempts to declare the Moon and other celestial bodies the “common heritage of humankind” not subject to ownership. (The U.S.—like every other major spacefaring nation—is not a party to the agreement.) And the Outer Space Treaty contains a “non-appropriation principle.” On the other hand, some countries don’t like the idea that you can’t own space—take the Bogotá Declaration of 1967 for example. In that Declaration, a coalition of equatorial nations attempted to resist the non-appropriation principle, claiming sovereignty over the geostationary orbital slots above their territories under a version of the traditional ad coelum doctrine of property law.

Complicated, right? Nations disagree on the fundamental principles of using and exploring the universe, and the law—like outer space—is far from settled.

As it turns out, foreign and international librarians can learn a lot from looking up to the sky once in a while. Here are some helpful resources to get you started:

ASIL 2018 Recap: 2018 Annual Grotius Lecture

By Charles Bjork

The American Society of International Law (ASIL) began its 112th annual meeting in Washington, D.C., on April 4, 2018, with the 20th annual Grotius Lecture delivered by Judge Joan E. Donoghue, who is serving her second term as a member of the International Court of Justice (ICJ) in The Hague.  After earning her J.D. from the Boalt Hall School of Law at the University of California at Berkeley in 1981, Judge Donoghue worked as an associate attorney at Covington and Burling prior to joining the State Department as an attorney in the Office of Inter-American Affairs.  During her distinguished career at the State Department, she represented the United States before the ICJ in Nicaragua v. the United States and eventually rose to become the Principle Deputy Legal Advisor from 2007 to 2010.  On September 9, 2010, the U.N. General Assembly and the Security Council elected Judge Donoghue to serve out the remainder of Judge Thomas Buergenthal’s term on the ICJ.  On February 5, 2015, she was elected to serve a full nine-year term as a member of the Court.

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Judge Joan Donoghue gives the 20th annual Grotius Lecture at ASIL 2018.

Judge Donoghue’s lecture was entitled “International Adjudication:  Peaks, Valleys, and Rolling Hills.”  She chose this title to make an analogy between the evolution of international dispute settlement and a group of explorers that sets out to discover a previously uncharted territory.  Media coverage of the explorers inevitably focuses on the dazzling images taken from the summits that they scale or on the calamities that they encounter along the way.  Although little, if any, attention is paid to the many days the explorers spend trudging up and down through the rolling hills between the peaks and valleys, it is the day-to-day choices that the explorers make outside of the media spotlight that ultimately determine whether or not their voyage of discovery is successful.

Judge Donoghue discerns a similar pattern in the way in which the practitioners of international law approach international dispute settlement.  Whenever a new dispute settlement mechanism is proposed to remedy the perceived shortcomings of existing mechanisms, the proponents of the new mechanisms are motivated by lofty and ambitions goals, not unlike the peaks that the explorers aspire to climb.  Once a new dispute settlement mechanism is established and begins to operate, shortcomings inevitably emerge, not unlike the valleys encountered by the explorers.  Criticisms are voiced by some who are frustrated by the mechanism’s failure to fully realize their lofty aspirations and by others who are hostile to the new mechanism and wish to destabilize it.   This phenomenon can be seen in the diverging assessments of the International Criminal Court and of the World Trade Organization’s Dispute Settlement Mechanism.

Using the explorer metaphor as the framework for the remainder of her remarks, Judge Donoghue went on to describe the aspirations of those who advocated for the establishment of a world court, to assess the shortcomings of ICJ that have emerged since its establishment, and to examine the challenges and opportunities faced by the practitioners of international dispute settlement as they trudge through the rolling hills between the peaks and valleys, before concluding with a brief overview of the evolution of investor-state dispute settlement.

As Judge Donoghue noted, the origins of the ICJ can be traced to the international peace conferences that were held in The Hague in 1899 and 1907.  The aspirations of those who advocated for the establishment of a world court at these conferences were bold, to put it mildly.  They wanted a tribunal with the following characteristics:  1) a permanent, standing court; 2) with the authority to settle the full range of disputes on all matters governed international law; 3) whose decisions would be binding on the parties; 4) whose decisions would be made public and lead to the development of a body of jurisprudence; 5) one with independent and authoritative adjudicators, whose decisions would be widely adhered to; and 6) one with compulsory jurisdiction that states would routinely use to settle their differences.  Although the peace conferences at The Hague did not result in the immediate establishment of a world court, they did lay the foundations for the establishment of the Permanent Court of International Justice (PCIJ) after the First World War, and for its successor, the ICJ, in the aftermath of the Second World War.

In Judge Donoghue’s view, the Statute of the ICJ fulfills four of the six aspirations voiced by those who campaigned for the establishment of a world court at the turn of the twentieth century.  The ICJ is a permanent court.  The scope of its jurisdiction is broad and does not exclude subjects that might be perceived as “too sensitive” for adjudication.  Its decisions are binding on the parties.  Both the proceedings and the decisions of the ICJ are open to the public, resulting in a jurisprudence that has the potential to influence the behavior of states which are not parties to a particular dispute.

With respect to the aspiration of creating an independent, authoritative bench of adjudicators, Judge Donoghue characterized the ICJ’s record as mixed.  The Statute of the ICJ entrusts the process of nominating qualified candidates for appointment as judges to individuals who are supposed to have expertise in international law and be able to act independently of national governments.  However, it is the member states of the United Nations who elect the judges by means of simultaneous secret ballots cast in the Security Council and the General Assembly.   The Statute of the ICJ also calls for a bench that has a representative geopolitical distribution.  What this has meant in practice is a more or less fixed allocation of seats among geographic regions.

The final goal of establishing a world court that would have compulsory jurisdiction over all states is where the ICJ has most clearly fallen short of the aspirations articulated at the Hague conferences.  U.N. member states are not required to accept the ICJ’s jurisdiction, nor are they required to submit disputes to the Court.  Member states may accept the Courts jurisdiction generally, or they may do so subject to reservations, or only with respect to certain treaties, or only with respect to known disputes, and they may change their consent to jurisdiction over time.  Although critics of the Court tend to overstate its shortcomings in this regard, there is no doubt that those who advocated for the establishment of a world court would be disappointed by the reluctance of states to consent to the ICJ’s jurisdiction and to rely on the ICJ to resolve disputes.

Judge Donoghue then turned her attention to two additional shortcomings of the ICJ that threaten to undermine its effectiveness:  the process of judicial selection and the working methods of the Court.  With respect to judicial selection, Judge Donoghue asserted that the processes in place at the national level for vetting judicial candidates are often inadequate.  As a result, relatively few qualified candidates are nominated.  When it comes to voting, the nationality of the candidates overtakes all other considerations.  For many states, vote trading dominates the process to such an extent that a state’s decision to support one candidate over another often has nothing to do with the candidate’s qualifications.  With respect to the Court’s working methods, Judge Donoghue acknowledged that they are too slow, too passive, and not amenable to change and adaptation. As the late David Caron noted in an article he published in the American Journal of International Law in 2000, the respect accorded to the ICJ and the willingness of states to consent to its jurisdiction depend on the quality of the ICJ’s judges and on the process by which they collectively reach their judgments.

Having acknowledged these shortcomings, Judge Donoghue insisted that genuine progress has been made in the evolution of international dispute settlement over the past century.  Both the PCIJ and its successor, the ICJ, have resolved significant cases of importance to the parties and to the international community.  Some highly respected jurists have served on both courts.  The ICJ currently has a full docket of diverse and important cases.  Thanks to the proliferation of international tribunals during the past half century, coupled with the revival and reinvention of the Permanent Court of Arbitration, states have more options for peacefully resolving disputes than ever before.  A healthy competition among these tribunals can help to allay misgivings about having a single world court and encourage states to submit their claims to adjudication or arbitration.

Turning her attention back to the ICJ, Judge Donoghue offered four suggestions for what practitioners, who work in the “rolling foothills” of international dispute settlement, can do to enhance the Court’s legitimacy and attractiveness as forum for states to resolve their disputes.  First, practitioners must work within the confines the ICJ Statute, despite its limitations, because there is no realistic prospect of the Statute being amended any time soon.  Second, practitioners must not overload the ICJ with expectations for which it was not designed, particularly the expectation that the Court should actively engage in more lawmaking beyond the scope of its mandate to adjudicate disputes and issue advisory opinions.  Such an approach would entail substantial risks for the Court, as David Caron warned in last year’s Brower Lecture.  Third, the members of the Court must be more energetic in improving the ICJ’s working methods and more willing to adapt innovations and reforms that have been successful in other tribunals.  Finally, practitioners of international law throughout the world should take the initiative to re-energize and re-invigorate national group vetting procedures for the selection of candidates to serve on the Court.  Nominating highly qualified candidates with expertise in international law will enhance the Court’s legitimacy and help to dispel the still widely held misperception that judges serving on the Court are merely the representatives of their respective national governments.

Before concluding her remarks, Judge Donoghue offered a brief overview of the peaks, valleys, and rolling hills of investor-state dispute settlement (ISDS).  The perceived inadequacies of litigating investor-state disputes in national courts provided the impetus for the World Bank to create a new mechanism for the direct settlement of such disputes in a neutral forum under the ICSID Convention.  Just as the ICJ Statute does not require U.N. member states accept the Court’s jurisdiction, neither does the ICSID Convention require states and foreign investors to resolve disputes through arbitration.  In practice, most states and the vast majority of foreign investors have embraced ICSID arbitration.  Nevertheless, many observers perceive the current system of ISDS to be entering a valley of doubt, as critics question the system’s infringement of state sovereignty and the right to regulate.

Judge Donoghue concluded her remarks by emphasizing that the proposal to create a world court and the proposal to create a new mechanism for resolving investor-state disputes were both big, bold ideas and remain so.  Nation states do not easily place their trust in third-party dispute settlement mechanisms.  At a time when powerful voices are launching strident attacks on international agreements and international institutions, it is incumbent upon those engaged in the practice of international dispute settlement to fight back against these exaggerated criticisms and, at the same time, candidly acknowledge the need to improve international dispute settlement mechanisms and the institutions that support them.  Instead of abandoning the lofty aspirations that motivated the advocates of a world court, Judge Donoghue urged practitioners to pull out their compasses, make some course adjustments, and continue to work their way forward through the rolling hills of international dispute settlement.

The Organization of American States: Brief Comments on Occasion of Its 70th Anniversary

By Carlos Andrés Pagán

The Organization of American States (OAS) is about to mark its 70th anniversary.[1] This is a matter for celebration. Regardless of some of its more controversial history,[2] this intergovernmental organization has accomplished many impressive milestones for human rights in the Americas. The foundational charter of the OAS was adopted in the same meeting that adopted the American Declaration of the Rights and Duties of Man,[3] the first international human rights instrument of a general nature. It is widely accepted that the inter-American human rights system was born with the adoption of these two instruments.

As the forerunner forum of human rights in the Americas, this anniversary provides a unique opportunity to reflect on the OAS’ role in establishing the most significant human right bodies and agreements in our region. In its first decade, the organization was responsible for the creation of the Inter-American Commission on Human Rights,[4] followed by the American Convention on Human Rights (ACHR)[5] in 1969. In 1979, the OAS established the Inter-American Court of Human Rights (IACtHR)[6] and, in 2001, the Inter-American Democratic Charter.[7]

To highlight the importance of these inter-American institutions and agreements, let us glance at some of the contributions that the IACtHR has produced through is rulings. To begin, the Court is considered a highly productive one, having rendered hundreds of decisions, judgments, and advisory opinions. But more importantly, some of its decisions have grounded and expanded our notion of what human rights stand for. For example, the case of “The Last Temptation of Christ”, Olmedo-Bustos et al. v. Chile,[8] regarding freedom of religion and expression, led Chile to revise its Constitution to comply with binding obligations arising from the ACHR. This was the first time a regional human rights court ruling led to a constitutional modification. The case of Hacienda Brasil Verde v. Brazil, related to modern-day slavery, is also deemed a breakthrough in its area.[9] More recently, the landmark advisory opinion issued last January regarding same-sex marriage and transgender rights is set to establish precedent for 19 other Latin-American and Caribbean countries who have agreed to abide by the Court’s decision.[10]

As we celebrate its historic achievements, let us also take notice of the plethora of available secondary sources for conducting research on the OAS. Many of these can be found through a library catalog search or by browsing through some of the many great research guides available on the topic. The OAS website can also be very helpful for this research. There you will find the organization’s primary documents along with other key reference materials, such as annual reports of the Secretary General, OAS resolutions, agreements, and treaties. Through the years, the OAS document search feature has improved significantly and their subject index with their close to 60 categories (ranging from Access to Information to Youth), is also a good starting point for research.

[1] Established in April 30, 1948, the OAS’s members are the 35 independent states of the Americas.

[2] I am mainly referring to the ideological divisions that in the past has disrupted the organization’s progressive agenda.

[3] Charter of the Organization of American States, April 30, 1948, 119 U.N.T.S. 3.

[4] http://www.oas.org/en/iachr/

[5] American Convention on Human Rights, Nov. 21, 1969, 1144 U.N.T.S. 143.

[6] http://www.corteidh.or.cr/

[7] http://www.oas.org/en/democratic-charter/

[8] “The Last Temptation of Christ” (Olmedo-Bustos et al.) v. Chile. Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 73 (Feb. 5, 2001).

[9] http://www.corteidh.or.cr/docs/asuntos/trabajadores_15_02_16_por.pdf

[10] Gender identity, and equality and non-discrimination with regard to same-sex couples. State obligations in relation to change of name, gender identity, and rights deriving from a relationship between same-sex couples (Arts. 1(1), 3, 7, 11(2), 13, 17, 18 and 24 American Convention on Human Rights), Advisory Opinion OC-24/17, Inter. Am. Ct. H.R. (ser. A) No. 24 (Nov. 24, 2017), http://www.corteidh.or.cr/docs/opiniones/seriea_24_esp.pdf

Regional Integration among African Nations — The Birth of AfCFTA

By Yemisi Dina

Promoting regional integration features prominently among the objectives of African organizations in the continent. Collectively since their inception, these organizations have been able to accomplish several goals related to trade, access to justice, accessible travel for citizens, free movement of goods and persons despite the numerous states of instability in the continent. Through regional cooperation, courts and tribunals such as the African Court of Justice and Human Rights, ECOWAS Court of Justice, East African Court of Justice, and Tribunal of the Southern African Development Community have been established.

Their initiatives continue to focus on themes aimed at eradicating poverty, empowering women, sustainable development, fostering economic unity, and human rights.

The regional organizations in this write up are limited to the following:

  • African Union (AU)
  • Economic Community of West African States (ECOWAS)
  • East African Community (EAC)
  • Southern Africa Development Community (SADC)

A visual map of African Regional Organizations is shown below:

African Map

Map from the European Centre for Development Policy Management (ECDPM) website, https://indd.adobe.com/view/f49ac87d-7aa3-4cf7-822e-841d674bbc92

Notable among these achievements is the recent launch of the African Continental Free Trade Area (AfCFTA) in Kigali, Rwanda on March 21, 2018. This agreement, like the EU Free Trade Agreements, North American Free Trade Agreement (NAFTA) and the Caribbean Community (CARICOM), aims to boost the economies of the continent through free flow of labour, goods, and services. (I have not had a chance to access the agreement but a few resources are available on the African Union website). The origin of the AfCFTA dates to the June 2015 African Union Summit where African Heads of Government agreed to create the continental free trade area.

Forty-four AU nations have signed the agreement; out of the forty-four, thirty have signed the Free Movement Declaration, while eleven did not join. The main objectives of the agreement include:

  • Creating a single continental market for goods and services, with free movement of business persons and investments;
  • Expanding intra-African trade through better harmonization and coordination;
  • Resolving the challenges of multiple and overlapping memberships by expediting the regional and continental integration processes; and
  • Enhancing competitiveness at the industry and enterprise level.

While many regions in the world are becoming divisive over regional integration, especially in the wake of BREXIT in Europe, the African nations are bent on moving forward with this initiative. There have been speculations about how the agreement will be implemented after all the fanfare in Kigali noting that many countries in the continent have economic and trade relationships in Europe and Asia. There is also the resistance among the AU member nations like Nigeria, which has not signed the agreement; the free movement of labour is envisioned as a threat to its labour industry and economy.  Other speculations include the impact of the various forms of conflict around the region. Nonetheless the success of the phenomenal move will depend on the commitment of member nations who are signatory to the agreement. The AU leaders have lessons to learn from other regional bodies around the world if this initiative is to realize the stated goals and objectives.

 

Further Reading:

March GlobaLex Issue Now Live

By Lucie Olejnikova

The March 2018 issue of GlobaLex is now live, featuring four updates. We invite you to take a look and be sure to update your pages. Congratulations to our contributors!

UPDATE: The Crisis in Darfur – Researching the Legal Issues by Andrew Dorchak at  http://www.nyulawglobal.org/globalex/Darfur_Crisis_Research1.html.

Andrew Dorchak is Head of Reference and Foreign/International Law Specialist at The Judge Ben C. Green Law Library at Case Western Reserve University’s School of Law, University in Cleveland, Ohio. He has assisted law students researching international criminal law topics since 2002.

UPDATE: Immigration Law – A Comparative Approach Guide to Immigration Law of Australia, Canada, and the United States by Colin Fong, Angas Grant, and Daniel Costa at  http://www.nyulawglobal.org/globalex/Comparative_Immigration_Law1.html.

Colin Fong is a Senior Visiting Fellow, Faculty of Law, UNSW Australia. Before becoming an academic, he worked in various libraries such as the University of Sydney Law Library and the law firm, Allen Allen & Hemsley. Mr. Fong holds Bachelor of Economics from the University of Sydney, a Masters of Legal Studies from the University of Technology Sydney and an Associate of the Australian Library and Information Association.

Angus Grant is a lawyer and legal scholar, based in Toronto, Canada. He has practiced in the area of refugee law for many years, the last several of which have been focused on appellate litigation. Having completed his doctorate in law in 2016, Angus now teaches Refugee Law and Administrative Law at Osgoode Hall Law School, York University.

Daniel Costa is the director of immigration law and policy research at the Economic Policy Institute, a think tank in Washington DC. An attorney, his current areas of research include a wide range of labor migration issues, including the management of temporary foreign worker programs, both high- and less-skilled migration, and immigrant workers’ rights, as well as various forced migration issues.

UPDATE: Researching Haitian Law by Marisol Floren Romero at  http://www.nyulawglobal.org/globalex/Haiti1.html.

Marisol Florén Romero is the Assistant Director for Library Services and Foreign & International Law Librarian at Florida International University (FIU) College of Law.

UPDATE: Researching South African Law by Salona Lutchman at  http://www.nyulawglobal.org/globalex/South_Africa1.html.

Salona Lutchman is a Senior Lecturer in the Department of Public Law at the University of Cape Town. She is an admitted Attorney and Notary of the High Court of South Africa. Currently, Salona is a PhD candidate at the Faculty of Law at the University of Cape Town. She holds an LL.B. from the University of KwaZulu Natal and an LL.M. in International Legal Studies from New York University.

 

For more articles on international, foreign, or comparative law research, see http://www.nyulawglobal.org/globalex/index.html.