Last month the European Commission proposed that the EU should mobilize the next tranche of funding for Turkey (€3 billion) under the EU–Turkey deal agreed in 2016. The deal is part of a rapidly developing strategy on the part of the EU to improve cooperation on migration issues with countries of origin as well as those through which migrants and refugees transit en route to Europe. Since 2015, the EU has ramped up negotiations, with the New Partnership Framework underpinning arrangements with countries such as Niger, Mali and Ethiopia, and endorsing a memorandum of understanding between Italy and Libya in February 2017.

A common thread that runs across all of these deals is their focus on containment in exchange for funding, rather than a principled approach to refugee protection. For example, the EU has committed around €6 billion to Turkey as a contribution towards the cost of humanitarian assistance for the over 3 million Syrian refugees residing there. This funding also operates as an incentive for Turkey to take back all refugees and migrants who have irregularly arrived in Greece via Turkey since the deal entered effect.

Similarly, the EU is providing financial support to Libya in exchange for its cooperation in reducing the flow of migrants and refugees towards Europe, while the New Partnership Framework aims to reduce the number of migrants and refugees departing for Europe in exchange for EU aid. While financial incentives geared towards containment do not amount to new policy, with the increasing number of deals being negotiated, the use of such a strategy appears to be both accelerating and becoming more explicit.

An effective investment?

Implementation of these deals has been hindered by obligations under international law, raising questions not only as to their legality but also their value for money.

Under the EU–Turkey deal, refugees arriving in Greece irregularly were to be returned to Turkey, with an equal number of Syrian refugees resettled to Europe in exchange. However, implementation of this aspect of the deal has been limited.

Under EU asylum law, Greece is obliged to provide access to asylum procedures for those arriving on its shores. Given that most arrivals from Turkey came from refugee-producing countries (including Syria, Afghanistan and Iraq), an individualized assessment of ‘safe third country’ is required before any possible return to Turkey can take place. This requires a finding that Turkey can guarantee effective access to protection for the individual in question, including protection against refoulement (i.e. forced return to a country where he or she is at risk of serious harm or persecution). By the end March 2018, only 2,164 people had been returned to Turkey.

As for Italy, with EU support, under the MOU with Libya it has been training as well as providing funding and logistical support to the Libyan coastguard – including an Italian naval presence in Libyan waters – to intercept boats in the Mediterranean. Given the mounting evidence of abuse of migrants and refugees, whether by Libyan coastguards or inside Libyan detention centres, this raises questions as to whether the support being provided by Italy and the EU amounts to a breach of international law.

Despite concerns about the protection risks for refugees, advocates of such deals claim they have the potential to prevent dangerous journeys, saving lives and interrupting the business model of smugglers. Numbers crossing the Mediterranean have indeed dropped since the deals were agreed. However, in Libya it has created an ‘anti-smuggling’ market which, despite leading to a reduction of migration in the short term, may not be sustainable in the long term if it drives conflict between various non-state actors.

In the case of the EU–Turkey deal, while it has led to a fall in arrivals to the Greek islands in the first six months of 2017, there is also evidence that smugglers were already adapting their routes, forcing refugees and migrants to travel on the more dangerous central Mediterranean route.

For now, at least, these deals appear to have gained significant popular support within the EU. Italy’s approaches in Libya, for example, have been broadly backed by the Italian public – unsurprising given that some polls indicate 50 percent of the Italian population believe migrants to be a threat to public security. However, the drivers of public attitudes towards refugees and migration are complex and, as noted in a policy brief published under the Chatham House–ODI Forum on Refugee and Migration Policy, influenced in part by narratives driven by politicians and the media.

What some of these deals have achieved is the significant flow of aid money towards job creation and economic opportunities for refugees, incentivizing policy change in some contexts and producing real benefits for the refugees concerned (while reducing pressures on them to move onwards via dangerous journeys).

A prominent example is the Jordan Compact, a 2016 agreement between Jordan, the EU and international financial institutions including the World Bank to improve the livelihoods and education of Syrian refugees inside Jordan. While challenges in its implementation remain, including concerns about labour rights, the Jordan Compact has resulted in real improvements in education and access to the labour market for Syrian refugees. The Jordanian government has made policy concessions on access to work permits for Syrian refugees, removing some of the barriers that prevented refugees accessing jobs, while the EU has committed to ease trade barriers for goods produced in Jordanian factories on condition they hire a percentage of Syrian refugees.

Likewise, the EU–Turkey deal’s most successful component has been its financial contribution of €3 billion of aid under the EU Facility for Refugees towards support for the 3.7 million Syrian refugees currently being hosted by Turkey. This includes €1 billion allocated to the Emergency Social Safety Net, described by the European Commission as the ‘largest single humanitarian project in the history of the EU’, directly impacting the livelihoods of some 1.1 million vulnerable refugees.

Moving ahead

While some aspects of these deals reflect a genuine effort to cooperate in addressing the needs of refugees, other elements risk undermining the very essence of the global refugee protection regime.

The diplomatic squabble over a proposed refugee ‘swap’ of 1,250 refugees between the US and Australia in February 2017 highlights the danger of refugees becoming bargaining chips. Similarly, the Kenyan government’s announcement that it would close Dadaab refugee camp in late November 2016 cited the EU-Turkey deal as justification. Migration partnerships which emphasise the securing of EU borders against refugee arrivals may diminish the willingness of states in the Global South to continue to host large numbers of refugees.

While the positive aspects of such deals deserve acknowledgement, understanding their impact on refugee protection must be given greater attention. This is vital not only to ensure their workability but also to ensure that those countries who spearheaded the creation of the global refugee protection regime do not end up undermining its existence.

PLEASE NOTE THIS EVENT IS BEING HELD IN GENEVA.

There have been large numbers of civilian deaths in the armed conflicts in Yemen and Syria. Is international humanitarian law being ignored? 

This meeting coincides with the launch of a Chatham House research paper on the incidental harm side of the proportionality assessment which belligerents are legally required to make. The panel at the meeting will consider the types of harm that fall within the scope of proportionality assessments, what constitutes ‘excessive’ harm and measures that belligerents can take to give effect to the rule on  proportionality.

This event will be followed by a reception.

There have been large numbers of civilian deaths in the armed conflicts in Yemen and Syria. Is international humanitarian law being ignored?

This meeting marks the London launch of a Chatham House research paper on the incidental harm side of the proportionality assessment which belligerents are legally required to make. The panel at the meeting will consider the types of harm that fall within the scope of proportionality assessments, what constitutes ‘excessive’ harm and measures that belligerents can take to give effect to the rule on proportionality.

This event will be followed by a reception.

This meeting, supported by the British Red Cross, is the first in a series of three to commemorate the 70th anniversary of the 1949 Geneva Conventions. The meeting will focus on the protection of the wounded and sick in armed conflict and will also include discussion of challenges to the protection of medical care and of health providers.

Attacks on health care personnel and facilities have increased in recent years, as have the instances in which proceedings have been brought against those providing medical care to wounded fighters, including under counter-terrorism measures.

The Geneva Conventions and their Protocols give protection to the wounded and sick and to healthcare providers, but is the law adequate? Is the law sufficiently widely known? How can the law be more fully implemented? What particular challenges arise in non-international armed conflicts?

This event will be followed by a drinks reception.

With international trade discourse taking an increasingly transactional and sometimes belligerent tone, it would be easy to overlook the quiet revolution currently under way to bring new voices into trade policy development and monitoring. The traditional division of responsibilities between the executive and legislature – whereby treaties are negotiated and signed by the executive, and the legislature does what is necessary to implement them – may be undergoing some change.

Growing awareness of the implications of trade and investment treaties for many aspects of day-to-day life – food standards, employment opportunities, environmental quality, availability of medicines and data protection, just to name a few – is fuelling demands by people and businesses for more of a say in the way these rules are formulated and developed.

Various options for enhancing public and parliamentary scrutiny of trading proposals have recently been examined by two UK parliamentary select committees.[1] The reason for this interest is obviously Brexit, which has presented UK civil servants and parliamentarians with the unusual (some would say exciting) opportunity to design an approval and scrutiny process for trade agreements from scratch.

Doubtless, EU authorization, liaison and approval procedures (which include a scrutinizing role for the European Parliament) will be influential,[2] as will the European Commission’s experience with stakeholder engagement on trade issues.[3] The recommendations of both UK select committees to include human rights impact assessment processes as part of pre-negotiation preparations[4] echo calls from UN agencies and NGOs for more rigorous and timely analysis of the human rights risks that may be posed by new trading relationships.[5] Again, EU practice with what it terms ‘sustainability impact assessment’ of future trade agreements provides a potential model to draw from.[6] 

However, process is no substitute for action. Human rights impact assessment is never an end in itself; rather, it is a means to a positive end, in this case a trade agreement which is aligned with the trading partners’ respective human rights obligations and aspirations. It bears remembering, though, that the idea of assessing trade proposals for future human rights risks is a relatively recent one. Do we have the tools and resources to make sure that this is a meaningful compliance and risk management exercise?

Thus far there is little evidence that human rights impact assessment and stakeholder engagement exercises are having any real impact on the content of trade agreements.[7] This is the case even in the EU, where practice in these areas is the most advanced and systematic.[8]

There are several possible reasons for this. First, the methodological challenges are enormous. Aside from the crystal-ball gazing needed to forecast the social, economic and environmental effects of a trade intervention well into the future, demonstrating causal links between a trade agreement and a predicted adverse impact is often highly problematic given the number of other economic and political factors that may be in play.[9]

Secondly, there are many challenges around the need to engage with affected people and listen to their views.[10] The sheer number of possible impacts of a trade agreement on different individuals and communities, as well as the range of rights potentially engaged, makes this a difficult (some would say impossible) task. Some prioritization is always necessary.

This makes for difficult decisions about who to engage with and how. Perceived bias or an apparent lack of even-handedness – favouring business compared to civil society, for instance – can sow mistrust about the true aims of such a process, undermining its future effectiveness as participants begin to question whether it is genuine or worthwhile.[11]

The challenges are even more acute where impact assessment practitioners are tasked with investigating potential human rights impacts in other countries. Even if it is possible to get past the inevitable political sensitivities,[12] the sort of in-depth consultations required will be beyond the budget and time constraints of most assignments.[13]

There are good reasons why trade policy should be subject to greater public and parliamentary scrutiny, and why there should be more opportunities for public participation in the formation of new trading regimes. By building more opportunities for stakeholder consultation at these stages, we can acquire perspectives on trade that are not available from other forms of assessment and analysis.

However, policymakers should be wary of overstating the benefits of existing procedural models. Human rights impact assessment processes are still struggling to provide compelling analyses of the relationships between trade agreements and the enjoyment of human rights, let alone a roadmap for policymakers and trade negotiators as to what should be done.[14]

And financial and practical barriers to participation in stakeholder engagement exercises mean that, at best, these will provide only a partial picture of stakeholder impacts and views.

Experiences with human rights impact assessment of trade agreements so far demonstrate the need for realism about two things: first, the extent to which one can sensibly anticipate and analyse human rights-related risks and opportunities in the preparation stages for a new trading agreement; and, second, the extent to which problems identified in this way can be headed off with the right form of words in the treaty itself.

Both recent UK select committee reports place considerable faith in the ability of pre-project transparency and scrutiny processes to flush out potential problems and prescribe solutions. Of course, there may be cases where frontloading the analysis in this way could be useful, for instance where the human rights implications are so clear that they can readily be addressed through upfront commitments by the parties concerned, whether by bespoke or standardized approaches.

More often, though, for a trade agreement running many years into the future, human rights impacts and implications will take time to emerge, suggesting the need for robust monitoring and mitigation frameworks designed with longevity in mind. Ideally, pre-signing approval and assessment processes would lay the groundwork for future action by both trading partners, either jointly or separately (though preferably both).

To this end, as well as developing ideas for more robust substantive provisions on human rights, policymakers should consider the institutional arrangements required – whether pursuant to the trade agreement or by complementary processes – to ensure that human rights-related risks identified during the planning stages are properly and proactively followed up, that emerging risks are tackled in a timely fashion, and that there are opportunities for meaningful stakeholder contributions to these processes.

Notes

[1] UK Joint Committee on Human Rights (2019), ‘Human Rights Protections in International Agreements, Seventeenth Report of Session 2017–19’, HC 1833 HL paper 310, 12 March 2019, https://publications.parliament.uk/pa/jt201719/jtselect/jtrights/1833/1833.pdf; and House of Commons International Trade Committee (2018), ‘UK Trade Policy Transparency and Scrutiny, Sixth Report of Session 2017-2019’, HC 1043, 29 December 2018.

[2] European Parliament and Directorate General for External Policies (2019), Parliamentary scrutiny of trade policies across the western world, study paper, March 2019, http://www.europarl.europa.eu/RegData/etudes/STUD/2019/603477/EXPO_STU(2019)603477_EN.pdf.

[3] European Commission (2019), ‘Trade policy and you’, http://ec.europa.eu/trade/trade-policy-and-you/index_en.htm.

[4] See UK Joint Committee on Human Rights (2019), ‘Human Rights Protections in International Agreements’, para 12; and House of Commons International Trade Committee (2018), ‘UK Trade Policy Transparency and Scrutiny’, paras 124–34.

[5] OHCHR (2003), Report of the High Commissioner for Human Rights on Human Rights, Trade and Investment, 2 July 2003, E/CN.4/Sub.2/2003/9, Annex, at para 63; UN Economic and Social Council (2017), ‘General Comment No 24 (2017) of the Committee on Economic, Social and Cultural Rights on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities’, UN Doc. E/C.12/GC/24, 10 August 2017, para 13; and UN General Assembly (2011), ‘Guiding principles on human rights impact assessment of trade and investment agreements’, Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, UN Doc. A/HRC/19/59/Add.5, 19 December 2011.

[6] European Commission (2016), Handbook for Sustainability Impact Assessment (2nd ed.), Brussels: European Union, http://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154464.PDF.

[7] Zerk, J. (2019), Human Rights Impact Assessment of Trade Agreements, Chatham House Research Paper, London: Royal Institute of International Affairs, https://www.chathamhouse.org/publication/human-rights-impact-assessment-trade-agreements.

[8] Ibid., pp. 11–13. For a detailed explanation of the EU’s approach to human rights impact assessment, see European Commission (2016), Handbook for Sustainability Impact Assessment.

[9] Zerk (2019), Human Rights Impact Assessment of Trade Agreements, pp. 14–21.

[10] Ibid., pp. 21–22.

[11] Ergon Associates (2011), Trade and Labour: Making effective use of trade sustainability impact assessments and monitoring mechanisms, Final Report to DG Employment, Social Affairs and Inclusion European Commission, September 2011; and Gammage, C. (2010), ‘A Sustainability Impact Assessment of the Economic Partnership Agreements: Challenging the Participatory Process’, Law and Development Review, 3(1): pp. 107–34. For a civil society view, see Trade Justice Movement (undated), ‘Trade Justice Movement submission to the International Trade Committee inquiry into UK Trade Policy Transparency and Scrutiny’, https://www.tjm.org.uk/resources/briefings/tjm-submission-to-the-international-trade-committee-inquiry-into-uk-trade-policy-transparency-and-scrutiny, esp. paras 23–32.

[12] Zerk (2019), Human Rights Impact Assessment of Trade Agreements, pp. 20–21.

[13] Ibid., pp. 21–22.

[14] Ibid.

This essay was produced for the 2019 edition of Chatham House Expert Perspectives – our annual survey of risks and opportunities in global affairs – in which our researchers identify areas where the current sets of rules, institutions and mechanisms for peaceful international cooperation are falling short, and present ideas for reform and modernization.

With more protracted and urbanized conflicts, the character of warfare is changing in a manner that is having a greater impact on children. Aside from physical harm, they face the trauma of family separation and displacement, are vulnerable to sexual abuse and recruitment as soldiers and suffer severe disruption to their education. This event will discuss how international humanitarian law applies to the protection of children. Are offences against children in armed conflict being prosecuted adequately? Are there better ways of ensuring compliance with the law?

This meeting is the second in a series of three commemorating the 70th anniversary of the 1949 Geneva Conventions.

This event, which is supported by the British Red Cross, will be followed by a drinks reception.

THIS EVENT IS NOW FULL AND REGISTRATION HAS CLOSED.

Summary

• Although sieges may conjure up images of medieval warfare, they are still used by armed forces today, in international and non-international armed conflicts.
• International law does not define sieges, but their essence is the isolation of enemy forces from reinforcements and supplies. Sieges typically combine two elements: ‘encirclement’ of an area for the purpose of isolating it, and bombardment.
• Questions of the compatibility of sieges with modern rules of international humanitarian law (IHL) arise when besieged areas contain civilians as well as enemy forces.
• Sieges are not prohibited as such by either IHL or other areas of public international law.
• Three sets of rules of IHL are relevant to sieges. The first comprises the rules regulating the conduct of hostilities. The second is the prohibition of starvation of civilians as a method of warfare, along with the rules regulating humanitarian relief operations. The third comprises the rules on evacuation of civilians.
• The application of IHL to sieges is unsettled in some respects. This briefing does not purport to resolve all the difficulties or address all the issues in detail.
• While it may go too far to say that it is now impossible to conduct a siege that complies with IHL, the significant vulnerability of civilians caught up in sieges puts particular emphasis on the need for both besieging and besieged forces to comply scrupulously with the legal provisions for the protection of civilians and to conclude agreements for their evacuation.

Attacks against journalists and challenges to media freedom are urgent and global. The sharp decline globally of democratic values which are underpinned in international values highlights the need for a free press and the necessity for states to take concerted action to protect media freedom.

The High-Level Panel of Legal Experts on Media Freedom is an independent body convened at the request of the UK and Canadian governments in July 2019.

The remit of the panel is to provide recommendations to governments on how to better protect journalists and address abuses of media freedom in line with international human rights law.

Drawing on the panel’s new report, the speakers will discuss the use of targeted sanctions to protect journalists and a free press. Can the threat of targeted sanctions help curb the trend of increasing abuses against journalists?

And what legal frameworks and mechanisms will be necessary to ensure targeted sanctions achieve their goal of identifying, preventing and punishing abuses against journalists?
 
This event is organized in collaboration with the International Bar Association’s Human Rights Institute which acts as the secretariat to the High-Level Panel of Legal Experts on Media Freedom.