Africa Notes: WTO Roundup

The WTO and Sustainable Development
Lesotho Ambassador Mothae Maruping is the current chair of the WTO’s Committee on Trade and Development. ICTSD has a nice report of their recent meeting and its focus on sustainable development. One thought is how to integrate the WTO’s Aid for Trade program with the goal of developing a green economy. Nevertheless, it is clear that some developing countries may also see the WTO as a shield from any radical green agenda that might try to restrict their ability to trade. The delegate from Benin:

Benin said that the WTO should facilitate the elimination of distorting trade practices related to environment that are “incompatible with sustainable development”. “It is important to avoid creating new trade barriers, imposing new conditions to aid, and deepening the technological gap between developed countries and developing countries

The WTO and Regional Integration within Africa
Peter Draper has a nice discussion of the relevance of WTO rules for regional integration efforts in Africa (ICTSD). He anchors his discussion with consideration of the proposed tripartite preferential trade agreement (T-PTA) between SADC, COMESA, and the EAC (basically uniting southern and eastern Africa). He points to a WTO report which singles some of the issues in maintaining coherence between WTO rules and the rules of these new trade arrangements. His overall conclusion seems to be that the negotiating parties strive to maintain coherence with WTO rules and perhaps even allow the WTO’s help with a “mulilateralizing regionalism” component.

Doha Round
Trying to Move Forward
The BRICS would like to remind us that Doha is not yet dead (MN). Both at their own summit last month and at a G-20 meeting in Mexico, they made this point. The WTO’s Director-General Pascal Lamy continues to try to breathe new life into the round. His most recent innovation is the creation of a 12-person panel of stakeholders which include corporate leaders, former heads of state, and leaders of various international institutions. Former President of Botswana, Festus Mogae is the sole African representative to the panel.

Positive DevelopmentsAgriculture
One of the major sticking points has been agriculture, especially for many African countries. The Doha Round began with a major campaign criticizing European and American farm subsidies and support for undermining agriculture in developing countries. Many of these subsidies continue, but there are some signs of change in Europe, at least. ICTSD reported this week that total EU farm support has dropped a bit and overall trade-distorting support has dropped even further:

Overall trade-distorting support – a category including amber, blue, and de minimis support – reportedly fell to €18.3 billion, a figure that is below the €22 billion cap that would be established under the draft Doha agriculture accord. (ICTSD)

Is Doha Dead?

Monty Python: Not Dead Yet

Course Notes – IL & GEP: Equity and climate change governance

My students in both classes have been focusing on climate change governance this week. One of the key themes that emerges is the question of equity. Does fairness matter here? (A question I won’t directly address because it is a take-home exam question!). What are the politics of equity and how does that translate into legal texts? As one student posted on my International Law blog:

I would argue that the concept of equity and how to measure it is the underlying issue.

A great source on these issues is Parks and Roberts’ 2008 article, “Inequality and the global climate regime.” Inequality, they note, is relevant to the interests of states who vary in their production of emissions and their vulnerability to climate change, and their capabilities for action on climate change issues (decision-making power in international regimes, for instance).

What are the prospects for collaboration on climate change given such inequalities? As one of my students noted, there are mechanisms for side payments to developing countries, to make participation in these agreements more attractive:

One of the many obstacles to international environmental protection is the economic interests of poorer nations.  In working to eliminate CFCs, the international community managed to solve this problem by creating a fund to help developing nations

Another student, considering the Montreal Protocol and its side payments to developing countries, seems to wonder whether the reasons for treaty ratification should matter to us:

What would the compliance rate have been had the Protocol not provided for these incentives or provided assistance for developing countries? While some states signed the treaty out of real concern for the environment, it seems most states only did so for financial reasons and to avoid conflict.

One of my students makes an even bolder and (perhaps) more controversial claim about the rights of the current generation in developing countries:

The environment is important and I believe that the international community should take action to protect it.  However ensuring the welfare of people alive today is far more important than ensuring the welfare of the world’s future population.

The problem of inequality has been–and will continue to be for some time–THE main issue is negotiations about climate change and economic governance (where my IL class will turn their attention to next).

Course Notes – IL: Philippines v. China and the Law of the Sea

China has a long history of disputes with other nations regarding their sovereignty over islands. Japan and China are currently at odds over some islands in the East China Sea (owned by a private Japanese individual). Vietnam recently sent six Buddhist monks to lay claim to the Spratly Islands in the South China Sea. And this, coupled with the even more serious contestation between China and the Philippines, amounts to what some (including Walter Russell Mead) are calling “the Great Game”.

Map of the Spratly Islands:

The biggest contest in recent days seems to be between China and the Philippines, again near the Spratly Islands which are also desired by Vietnam (Business Insider). Philippine warships reportedly threatened Chinese fishing vessels, raided ships, and faced-off with Chinese surveillance vessels. China has deployed ships and aircraft to the region. Of course, the Philippines is a strategic ally for the United States, so it may come as no surprise that all of this is happening just as their annual joint American-Filipino military exercises began in the South China Sea (Washington Post). However, as Julian Ku notes over at Opinio Juris, it is unlikely that the Philippines will win this dispute with military force.

Could this be resolved using international law? The Philippine government seems to hope so. They have brought the case to the International Tribunal for the Law of the Sea (ITLOS). Their Department of Foreign Affairs Secretary, Albert del Rosario:

At day’s end, however, we hope to demonstrate that international law would be the great equalizer…The purpose of the exercise will be to ascertain which of us has sovereign rights over the waters surrounding Scarborough Shoal. (ABS-CBN News).

However, China may have its own sovereignty claim which, Ku notes, may make it difficult for ITLOS to have jurisdiction without China’s (unlikely) consent. And apparently China is not too keen on using ITLOS as a forum. Chinese embassy spokesperson Zhang Hua, in response to these developments, reportedly wrote:

We urge the Philippine side to fully respect China’s sovereignty, and commit to the consensus we reached on settling the incident through friendly consultation and not to complicate or aggravate this incident, so that peace and stability in that area can be restored.(Zambo Times)

So, using ITLOS is an aggravation?

Even if they cannot get ITLOS to settle the matter, they might be able to get an advisory opinion (along with Vietnam) from ITLOS on China’s claims, which could lend support for their cause, argues Ian Storey (Thanh Nien News). A case study at American University does a nice job of briefly and neatly summarizing what I believe are the key legal claims here:

The Law of the Sea Convention — an international law/standard agreed to by the countries of the world — is involved in the claims of Malaysia, Brunei, and the Philippines. These three countries claim that all or part of the islands are a part of their continental shelf. According to the Law of the Sea, the countries have legal right over the area of their continental shelf.
In 1987 China claimed that the Hainan Island–the closest recognized Chinese territory to the islands–was a separate province that would be developed as a special economic zone and declared a new law on its territorial waters in 1992. These laws gave China a greater basis for claiming control over the Spratlys as a “contiguous zones” for territory.

What is at stake here?

The islands are significant for their geographic location (shipping and military interests), fishing rights, guano, and possibly oil, natural gas and mineral resources.

Noted: Climate Change, Global Politics, and International Law

Earth Day is this Sunday and in both of my classes we are discussing the politics and international law of climate change this week and next. So I thought it might be a good opportunity to examine the recent news.

Fragmented Global Governance and Climate Change
A quick look at Reuter’s Diary on the Global Environment helps illustrate the continued fragmentary approach to these issues at the global level. Just in the next 7 days:

Regional Efforts
On a regional basis there is the Africa Carbon Forum, meeting in Addis Ababa; a “Public Forum on North America’s energy future” meeting in Canada; an “EU energy and the environment Minister’s meeting”.

Issue based efforts
Sweden’s “Stockholm+40” conference on sustainable development; The Fifth Annual Global Marine Renewable Energy Conference in Washington, DC

And if we look beyond the coming week, more of the same is happening in Asia, Europe, and elsewhere, looking at linkages between climate and water, climate and birds, the use of solar energy, and desertification. The meetings are hosted by governments, UN agencies, and regional organizations. On the one hand, we might like the fact that so much attention is being paid to these issues. On the other hand, how do we organize a response to climate change in light of such institutional complexity?

Individual state efforts to combat climate change may create problems for global talks
In Europe
While we wait on a global solution, individual countries are creating and implementing their own approaches to the issues. One example of this is a European Union law to charge airlines for their carbon emissions (Reuters). Reportedly, US airlines will comply, but China and India want nothing to do with this. Says India’s Environment Minister Jayanthi Natarajan:

For the environment ministry, for me, it is a deal-breaker because you simply cannot bring this into climate change discourse and disguise unilateral trade measures under climate change…
I strongly believe that as far as climate change discussions are concerned, this is unacceptable.

Apparently, India is suggesting that this culd be a reason for them to boycott all future climate-change talks.

In the United States
Recently, in the US there was a suggestion that the Endangered Species Act could be used to require the US to control greenhouse emissions. Since those emissions create conditions that make polar bear’s habitats less habitable, there was arguably potential scope for regulation. While this has so far been used to target domestic emissions, one can wonder whether a success in using the Act this way could also lead to pressures to regulate the actions of foreign actors whose emissions can be said to have direct effect on our polar bears’ habitats. My guess: highly improbable. But it is interesting.

Issue Linkage: Climate Change and Conservation

Finally, there is an interesting piece by Elias Ngalame at AlertNet on how Cameroon is trying to get support for climate adaptation projects in order to protect its elephants from poaching. The claim is that elephants are wandering out of the protected parks due to drought and desertification brought on by climate change, leaving them more susceptible to poaching.

Africa Notes: Gay Rights and the Alien Tort Statute

Do African politicians have a reason to support gay rights?
A recent conversation with some colleagues and the discovery of a post about “Gay Relief” on Ramblings of a Procastinator in Accra got me thinking again about the politics of homosexuality in Africa. In the blog post, Abena Serwaa writes:

Contrary to what most people believe, African leaders love gay people. In recent times, the African politician has come to realise that no single issue can galvanize and unite the citizenry across the usual divides than calls for gay rights.

As she mentions, UN Secretary-General Ban Ki-Moon’s call for African leaders to respect gay rights has not had its intended effects. Ghana’s President had this to say:

Ghanaian society frowns on homosexuality, if the people’s interest is that we do not legalize homosexuality, I don’t see how any responsible leader can decide to go against the wishes of his people.

And recent Nobel Prize Winner Liberian President Ellen Johnson Sirleaf also vowed to veto any bill legalizing homosexuality. Her Press Secretary said this:

Liberians should hold this government by her word. This President will not sign into law anything called same sex marriage. This government opposes gay rights. In fact, government will not compromise its religious belief for any (foreign) aid. We have listened to the vast majority of our people who have spoken on this issue and kicked against it, so this government has the will of the people and believes in the dreams and aspirations of the people and I can assure you that President Sirleaf will not sign that bill.

Of course, Africa is not the only part of the world that struggles to accept gay rights as Brian Whitaker notes, there is an “ongoing battle for gay rights in the Arab world.” And how can we expect this to happen any easier there than it does here in the US? Jimmy Carter, one of our most famous human rights campaigners, has just now come around to supporting gay civil marriages. And I think everyone knows how Santorum has felt about gay rights for some time.

The question becomes: what will it take to incentivize politicians in Africa (and elsewhere) to promote gay rights? No, I don’t yet have the answer.

Can Americans be sued for pursuing anti-gay agendas in Africa?
Indeed, just recently a Ugandan gay rights group, Sexual Minorities Uganda, has filed suit against American evangelist Scott Lively using the Alien Tort Statute (ATS; a statute I have written about here). As reported by the New York Times:

The lawsuit maintains that beginning in 2002, Mr. Lively conspired with religious and political leaders in Uganda to whip up anti-gay hysteria with warnings that gay people would sodomize African children and corrupt their culture.

The Supreme Court is currently hearing a different ATS case which may impact whether other cases such as this get heard. But this could be an interesting way to hold our own extremists accountable.

International Women’s Day

While I “celebrate” International Women’s Day with a lunch and a talk by that famous defender of women’s rights, Supreme Court Justice Antonin Scalia, I thought it might be worth taking a moment to think about the broader picture. (Time: “Justice Scalia Mouths Off On Sex Discrimination“)

What does this day mean in the developing world? Duncan Green has a nice post on “what to celebrate, what to condemn“, rounding up much of what the blogosphere has been saying. I think, in short, that we have “come a long way” but there is clearly a long ways to go in ensuring women have equal rights and opportunities. And, of course, we may want to extend this category of rights to other forms of gender discrimination. We can think of the developments and trends at both the global and local levels.

At a global level, there has been the development of treaty law. In my International Law class we cover the Convention on the Elimination of Discrimination Against Women (CEDAW) and I have them read Beth Simmons’ interpretation of that convention’s impacts (Mobilizing for Human Rights). She shows that these conventions have had their greatest impacts on countries that are neither strong democracies (who do much of this anyway) nor completely autocratic. The very act of ratification for that large group of countries in the middle enables activists and others in their organization and their ability to place demands on their own governments. In Japan, for instance, she shows it changed the political opportunity structure surrounding government employment practices (they began hiring more women). Last year, Nauru, became the most recent state to ratify CEDAW. (We have not.)

I had a brief view of developments in efforts to improve the opportunities for girls in the late 1990s. As a Peace Corps Volunteer, I was lucky enough to be a part of a team that helped start a Peace Corps Ghana Gender and Development program and set-up a national girl’s education confence. (Jennifer Miller was really the leader in this, bringing her ideas from a similar program in Niger. Heather Moran rounded out the team.)

Course Notes – IL: Universal Jurisdiction

We are also discussing universal jurisdiction this week, albeit briefly. At Erga Omnes there is an interesting post about Yemen’s amnesty law that is intended to grant President Saleh immunity for any crimes he may be complicit in. This issue underscores the tension between the objectives of peace and stability (giving a President a way out might enable an easier transition), versus justice. A separate issue is whether or not Yemen’s parliament’s grant of amnesty can have any real effect outside of Yemen.

Course Notes – IL: ATS and Corporate Persons

As I mentioned in class on Monday, the Supreme Court is hearing arguments this week on two cases Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority. These cases concern the Alien Tort Statute, an almost-forgotten law that allows foreigners who violate serious international legal rules and norms to be held accountable in the US.

Kiobel involves Shell’s complicity in the torture of Nigerian nationals. Mohamad involves complaints against the Palestinian Authority and the PLO for torture of Mohamad’s father, a naturalized American who was in the West Bank at the time.

Here are some of the big themes in the case:

1. Are corporations people?

As Peter Weiss (NY Times h/t my student, Micky Capper) notes, the Supreme Court is faced with an interesting dilemma. On the one hand, in Citizens United it granted corporations certain rights as corporate persons. On the other hand, the Second District Court has said–in essence–that corporations are not individual persons when it comes to the Alien Tort Statute. How will they reconcile these two positions? Will they?

2. The human rights angle.

Over at Erga Omnes, the human rights dimension of the case is front and center. Kiobel involves claims against Royal Dutch Shell for its role in the torture of activists in the Niger Delta (or at least helping the Nigerian government in this).

3. Comparative Foreign Law and the Risk of Political Tensions

Following the excerpts in John Bellinger’s post at Lawfare, it is clear that the issue of extraterritorial application of the ATS is of great interest to the justices. Kennedy seems concerned that the ATS is giving the US jurisdiction that no other country attempts to exercise. Alito is concerned about how this might exacerbate international tensions.

I think the petitioner’s attorney, Hoffman, makes a great – if perhaps not original – point when he states:

“I think one of the most important principles in this case is that international law, from the time of the Founders to today, uses domestic tribunals, domestic courts and domestic legislation, as the primary engines to enforce international law.”

Indeed, if international law is going to matter, it does rely on mechanisms such as the ATS.

The Obama Administration is in favor of corporate liability in these cases, reports Reuters.

For more on these cases, see:

Course Notes – IL: Medellín and Self-Executing Treaties,

Opinio Juris has had a nice discussion this week on the exact subject we discussed yesterday and will continue to discuss next week: the relationship between international law and US law. The symposium is all online:

Opinio Juris/Yale Journal of International Law Symposium: Hathaway, McElroy, and Solow on International at Home

Some highlights:

1. This begins with a discussion by Oona Hathaway, Sabria McElroy, and Sara Solow about their article: “International Law at Home: Enforcing Treaties in U.S. Courts.” Much of that discussion focusses on the Medellín case we read about. Specifically, they aim to understand how that decision impacts the enforcement of international law in U.S. courts and they offer proposals for strengthening enforcement of international law.

2. Sloss argues for a different interpretation of Medellin, and in particular the sentence in the decision that says there is a “background presumption…that [treaties] … do not create private rights or provide a private cause of action in domestic courts.” He summarizes his argument:

“In sum, it appears that very little has changed since Medellín. Before Medellín, US courts vigorously enforced transnational treaty provisions, but they were hesitant to enforce vertical treaty provisions. After Medellín, US courts are arguably more reluctant to enforce vertical treaty provisions, but their enthusiastic enforcement of transnational treaty provisions continues unabated.”

3. John Bellinger, part of the Secretary of State’s Advisory Committee on International Law, makes an interesting comment on how the Medellín decision surprised him:

“ does not make much sense to me that the President [Bush] would order compliance with an ICJ decision knowing his order would be struck down. His order was decidedly unpopular in Texas and with conservatives, and he received little credit in the international community for his effort to comply with international law. To my knowledge, the President made his decision, based on the recommendation of his Secretary of State, because the U.S. is required under the U.N. Charter to comply with decisions of the ICJ and because demonstrating commitment to the Vienna Convention on Consular Relations (VCCR) would help protect Americans who are arrested in other countries”

4. Finally, and most recently,Vladek blogged on “Self-Execution Beyond Treaties”: Enforcement of both domestic and international obligations is becoming more problematic.

IL Course Notes: Actors

The theme this week, carried over from last week, is “actors in international law”. We will finish discussing states, and move on to other actors. But the unfortunate events in Syria provide a lens for thinking about some of these actors.

One of the first things we learn in international law is that sovereign states are largely treated as “equal” subjects. However, over at Opinio Juris, Jens Ohlin notes that in the area of security some actors (the permanent members of the security council) are more equal than others (the rest of the states): “Syria, Intervention, and Recognition”. This is why the Security Council cannot act on Syria. Two of its members, Russia and China, seem unlikely to allow any resolution on Syria to pass, regardless of what the rest of the world may want.

However, another interesting aspect to the Syria issue is the question of forum shifting by actors. If the Security Council’s actions can be blocked by two states, what about the International Criminal Court. Julian Ku asks this in another post at Opinio Juris:“Since the Security Council Won’t Act, Send in the ICC?” These are two somewhat independent international organizations. And while one (the Security Council) is mostly focused on regulating the behavior of states, the other (ICC) is primarily focused on regulating the behavior of individuals. Unfortunately for those who would like to see ICC action, it would likely require Security Council support, given that Syria is not a member. And, once again, China and Russia will likely block such a decision.

Sudan is a case where the Security Council did ask the ICC to investigate a state who was not a member of the ICC. However, this has proved controversial in Africa. Just last month, the African Union asked its commission to consider seeking an ICJ advisory decision on whether Sudanese President Omer Hassan al-Bashir should be considered immune, whether the ICC process is against international law in this instance. (Likely the ICC is in the right here, I would say. But it could be an interesting ICJ decision to follow, should it get there.) See: “African Union may ask ICJ for opinion on Bashir’s immunity from ICC”.