For inspiration from amazing women who work for solidarity actions to assist the dis-empowered and vulnerable persons, including refugees, minorities, persons subjected to solitary confinement, and victims of atrocity crimes seeking truth, please see the video from the 2022 ASIL Roundtable including Noura Erakat, Maha Hillal, Azadeh Shashahani, Nia Houston, chaired by Cecilia Bailliet. The video is available here
The recognition of a global shift in international affairs is marked by the passing of Judge Antônio Augusto Cançado Trindade. His quest to pursue of the emancipation of those most vulnerable from oppression, including refugees, minorities, indigenous people, the environment, was articulated as the manifestation of a universal juridical conscience. He explained how human rights violations had a transcendental scope of traumatic impact upon individuals beyond the time of detention, the suffering of the families of victims subject to forced disappearance or torture, and the anguish of societies denied reconciliation after internal conflict via structures of impunity seeking to bury historical recognition of atrocity crimes. His analysis grounded the evolution of human rights law through articulation of the right to truth, the right to a life’s project, and characterization of non-discrimination as a jus cogens norm, as well as recognition of the rights to peace and development. He supported the aim of achieving a world committed to disarmament and protection of the common heritage of mankind. He warned that the focus on individual criminal accountability should not distract from the equally important recognition of state accountability of atrocity crimes. Fundamentally, he viewed the role of the international judge as carrying a responsibility to create spaces of freedom for individuals and marginalized groups in the face of repression thereby humanizing international law. I had the privilege of interviewing him in 2011 and his illuminating perspectives are available here.
The Latin America Interest Group invites you to join us for a discussion of The Construction of the Customary Law of Peace: Latin America and the Inter-American Court of Human Rights, written by Professor Cecilia Marcela Bailliet, Department of Public and International Law, University of Oslo Faculty of Law on Wednesday May 11th at 11 a.m. EST on Zoom, the video is available here
The book explores the emerging construction of a customary law of peace in Latin America and the developing jurisprudence of the Inter-American Court of Human Rights. It traces the evolution of peace as both an end and a means: from a negative form, i.e. the absence of violence, to a positive form that encompasses equality, non-discrimination and social justice, including gendered perspectives on peace.
- Professor Cecilia Marcela Bailliet (author), Department of Public and International Law, University of Oslo Faculty of Law
- Professor Jorge Contesse (discussant), Rutgers Law School
- Laura Zielinski (moderator), Holland & Knight LLP
This session is organized by ASIL’s Latin America Interest Group and is cosponsored by the Center for Transnational Law at Rutgers Law School.
Wednesday, May 11, 2022 – 11:00am to 12:00pm
For More Information
I am pleased to announce that the UN Audio Visual Library of International Law has released my second lecture titled “Refugee and Asylum Law: Towards the Centrality of Human Rights”. It is available here
The lecture first gives an overview of the definition of a refugee according to the 1951 Convention on the Status of Refugees, including the elements of well-founded fear of persecution, nexus to protection categories, the principle of non-refoulement, and exclusion and cessation clauses. It then addresses the cost of seeking asylum, examining the risks of refugees at sea, the phenomenon of “crimmigration”, urbanization, and warehousing of refugees. This followed by a presentation of the elements of the “return turn”, including application of “safe third country/first country of asylum”, reference to internal flight alternatives, and stringent credibility analysis. There is brief presentation of the challenges regarding contemporary causes of flight, such as climate change and natural disasters. It concludes by referring to the contribution of the human rights courts and commissions from the Inter-American, European, and African human rights systems in articulating the procedural and substantive rights of refugees and migrants- who are all human beings.
President Zelensky made an impassioned plea to the United States in his address to the US Congress on March 16th- “To be the leader of the world means to be the leader of peace”. The same day China’s Ambassador to the United States, Qin Gang, authored an Op Ed in the Washington Post titled “Where we stand in the Ukraine” in which he insisted that China did not have prior knowledge of the invasion of the Ukraine, that Taiwan is not the same as the Ukraine (which it views as a sovereign a state, while Taiwan is considered to be an inseparable part of China), that China remains interested in promoting a cease fire and providing protection to civilians, and that China is committed to an independent foreign policy of peace. He states that China supports regional and global stability. Qin Gang defines a type of regional peace that is based on security, and ironically correlates with the conception of peace as linked to security in the German Constitution, Article 24.2, which itself is increasing its defense budget significantly: “The long-term peace and stability of Europe relies on the principle of indivisible security.” This signals a recognition of the relevance of regions or “neighborhoods” in which stability or peace is dependent on security.
In 2021, the US National Intelligence Council published a report on Global Trends 2040: A More Contested World that offered five scenarios for what they estimated the geopolitical context would look like by 2040. Scenario 4 is called Separate Silos, the summary explains:
“In 2040, the world is fragmented into several economic and security blocs of varying size and strength, centered on the United States, China, the European Union (EU), Russia, and a few regional powers, and focused on self-sufficiency, resiliency, and defense. Information flows within separate cyber-sovereign enclaves, supply chains are reoriented, and international trade is disrupted. Vulnerable developing countries are caught in the middle with some on the verge of becoming failed states. Global problems, notably climate change, are spottily addressed, if at all … By the early 2030s, cascading global challenges from decades of job losses in some countries in part because of globalization, heated trade disputes, and health and terrorist threats crossing borders prompted states to raise barriers and impose trade restrictions to conserve resources, protect citizens, and preserve domestic industries. Many economists thought that economic decoupling or separation could not really happen because of the extensive interdependence of supply chains, economies, and technology, but security concerns and governance disputes helped drive countries to do the unthinkable, despite the extraordinary costs.”
This scenario is indicative of increased regionalism characterized by a decoupling of the networks that Mark Leonard described as essential elements of The Age of UnPeace– information, trade, etc. that led to the persistent state of competition and conflict before the war in the Ukraine. In short, this is a movement towards a “Decoupled Peace” in which the connections that increased conflict through competition are deliberately severed. Russia has been isolated by disinvestment and sanctions and it left the Council of Europe after being suspended. The European Union seeks to decouple its energy dependence on Russia by a contradictory bifurcated resort to alternative sources of oil and coal, even from governments subject to sanctions previously, and increase investment in renewable energy and nuclear energy. Nevertheless, the international community appears unable to prevent the global hunger crisis that will devastate the African continent due to the blocking of wheat, corn, barley, and fertilizer from Russia, Belarus, and the Ukraine. The path from war to Decoupled Peace is undeniably tragic.
-  Basic Law of the Federal Republic of Germany Article 24 collective security for “a lasting peace”. BVerfG, Judgment of the Second Senate of 03 July 2007 – 2 BvE 2/07 – paras. (1-90),
- BVerfG, Judgment of the Second Senate of 03 July 2007 – 2 BvE 2/07 – paras. (1-90), b) Germany commits €100 billion to defense spending | News | DW | 27.02.2022
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 Renewable energy targets (europa.eu) Europe wants more renewables to increase its energy security | EURACTIV PR European Commission declares nuclear and gas to be green | Europe | News and current affairs from around the continent | DW | 02.02.2022 Are Iran and Venezuela viable alternatives to Russian gas? — Quartz (qz.com)
Following the invasion of Ukraine, the international community has expressed solidarity in pursuit of a peaceful resolution. Within International Law, which legal solidarity approaches can be taken by states?
Can we pursue “peace and solidarity through law”? Can we replace “lawfare” and “security through power”? Is it possible to dismantle the structures of violence, oppression maintained by states and non-state actors and change the context of a fragmented international order? Solidarity is the value that all individuals and peoples have the right to benefit from peaceful and equitable international order.
- 10:00: Solidarity for Peace. Welcome by Cecilia Bailliet
- 10:10: Solidarity through Accountability for the Crime of Aggression. Jo Stigen
- 10:25: Solidarity in Humanitarian Assistance: Resettlement of Refugees in Ukraine. Kristin Bergtora Sandvik
- 10:45: Solidarity and Information Politics. Mareile Kaufmann
- 11:00: Legal Approaches to Energy Solidarity. Catherine Banet
- 11:15 Q &A
The live stream is available here
Pursuant to the Uniting for Peace Resolution A/RES/377 (V) 3 November 1950, the General Assembly will hold an Emergency Session on the Ukraine at 10 a.m. New York Time, you may watch on UN WebTV
The letter submitted by the Ukraine is available here
It should be noted that although the primary formal mechanisms of accountability may be limited, there remain alternative forums, such as fact finding mechanisms, reports by UN human rights treaty and charter bodies as well as European institutions, as well as peoples tribunals.
Ingrid Weurth in the LawFare blog correctly critiques the misuse of humanitarian arguments to justify territorial intervention:
“I have been arguing for years that expanding international law to focus on human rights and humanitarian objectives at the expense of territorial integrity has created credibility and other problems that weaken the international legal system as a whole.
Today, the international community should reinvest in norms of territorial integrity and sovereignty through international law, even at the occasional expense of humanitarian objectives (which should be pursued vigorously through other avenues). The work of the United Nations should focus on interstate peace and territorial integrity.”
I would argue that the UN work on peace cannot be divorced from human rights as it is defined as a purpose within the preamble of the UN Charter, as well as Article 55, while Article 56 places an obligation on Member States to cooperate to achieve respect for human rights. The orientation of the international order is the pursuit of a pro homine peace, as discussed in The Research Handbook on International Law and Peace.
Given the serious situation in the Ukraine the challenge to uphold peace please find here my lecture on the Evolving International Law of Peace given at Kings College War Studies Department
The UN AudioVisual Library invited me to give a lecture on Women Refugees and Gender Persecution. It gives an overview of gender-based violence, the context of forced migration faced by women, the application of the due diligence principle in Refugee Status Determination, assessment of risk, evidentiary issues, credibility determination, gender-related persecution, nexus to protection categories, and the application of cessation clauses and the Internal Flight Alternative. It will be made available on March 7th on the eve of International Women’s Day! Please check the UN AVL website
The Human Rights Brief of American University Washington College of Law published my article titled Examination of the Effects of Deportation as a Result of Revocation of Status Upon the Rights to Non-Discrimination, Family Unity, and the Best Interests of the Child: An Empirical Case from Norway, This article discusses the European and Nordic trend of non-European/Schengen nationals to their countries of origin or transit countries and implementing deportation as a principal mechanism of immigration control. It examines a particular case from Norway resulting from a review of cases involving select nationalities extending back in time beyond five years. This review identified persons who lied about their country of nationality and were subject to revocation of status and deportation in spite of their ties to family and integration within the community. The article discusses the role of the judiciary as a resistant gatekeeper to international human rights, in particular the right to family unity and the best interests of the child, as well as the right to non-discrimination. It calls for reform of review of old cases based on nationality, instead acting only an individualized security risk assessment and the adoption of a human rights based approach to revocation and deportation.
Professor Cecilia M. Bailliet has been chosen to Chair the Expert Advisory Group to the UN Independent Expert on Human Rights and International Solidarity Obiora Okafor. Together with other members of the group, Bailliet will prepare a report and suggest revisions to the current draft declaration on the right to international solidarity.
In addition to Bailliet, the group consists of Professor Obijiofor Aginam of the UN University, Professor Mihir Kanade of the University of Peace in Costa Rica, Professor. Vesselin Popovski of the Jindal Global Law School, and Professor Jaya Ramji-Nogales of Temple University.
The group will present its report and recommendations for a revised draft in April 2022 to the Independent Expert who then will share with key states within the UN Human Rights Council in order to make a presentation to the Council for adoption.
The group benefits from the findings provided by the research assistance of UiO law students Solveig Hodnemyr and Julie Skomakerstuen Larsen and Johns Hopkins University student Jeff Baek. The right to solidarity is described as being part of “the second wave of third generation rights” including the right to peace (adopted as a Declaration by the UN General Assembly); the right to development (currently being drafted as a convention); and the right to a healthy environment (recognized by the UN Human Rights Council).
This work complements Professor Bailliet’s current project editing the Research Handbook on International Solidarity to be published by Edward Elgar 2022-23; it includes chapters by other women scholars (including Jaya Ramji-Nogales): Beate Sjåfjell, Alla Pozdnakova, Vasuki Nesiah, Sylvia Bawa, Usha Natarajan, Elizabeth Salmon, Karin Frode and Shyami Puvimanasinghe.
For those of you attending the 2022 ASIL Conference virtually, there will be a session on solidarity in Track 6 on Competing Values of International Law. This roundtable will include Noura Erakat, Maha Hillal, Azadeh Shashahani, Nia Houston, and Cecilia Bailliet.