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CBD News: This year, International Mother Earth Day coincides with the signing ceremony for the Paris Agreement on Climate Change at UN Headquarters in New York, where world governments will demonstrate their commitment to meet the challenges of climate c




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CBD News: A Memorandum of Cooperation (MoC) geared towards enhancing cooperation between the Secretariats of the Convention on Biological Diversity (CBD) and the FAO International Treaty on Plant Genetic Resources for Food and Agriculture was signed today




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CBD News: The winners of the MIDORI Prize for Biodiversity 2018 were announced today. The MIDORI Prize is a prestigious biennial international prize organized by the AEON Environmental Foundation and the Secretariat of the Convention on Biological Diversi




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CBD News: The 2018 UN Biodiversity Conference of the Parties (COP14) closed tonight with broad international agreement on reversing the global destruction of nature and biodiversity loss threatening all forms of life on Earth.




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CBD News: Statement of the Executive Secretary of the Convention on Biological Diversity, Dr. Cristiana Pasca Palmer, Assistant-Secretary-General of the United Nations, on the occasion of the Official Launch of the 2019 International Year of Indigenous La




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CBD News: The world needs transformative change if life on Earth is to be safeguarded and people are to continue to receive the services and benefits that nature provides, according to a new report from an international team of leading researchers.




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CBD News: The United Nations celebrated the International Day for Biological Diversity by examining the fundamental role of nature in ensuring human health and good nutrition.




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International study shows Hong Kong students' good performance in reading, mathematical and scientific literacy




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International scientific conference to debate new lifestyles to mitigate climate change

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International declaration: Geoscience expertise is crucial for meeting societal challenges

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FSU researchers study Gulf of Mexico in international collaboration

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Insulin-Related Knowledge Among Health Care Professionals in Internal Medicine

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Feature Articles




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Recommitting to International Criminal Justice and Human Rights in Indonesia

6 April 2018

Agantaranansa Juanda

Academy Associate, International Law Programme

Jason Naselli

Senior Digital Editor
Agantaranansa Juanda speaks to Jason Naselli about the promises the government has made and the steps that still need to be taken for the country to deliver justice for past violations of human rights.

2018-04-06-Jokowi.jpg

Indonesian PM Joko Widodo. Photo: Getty Images.

Does the Indonesian government adequately protect human rights?

It does and it does not; it really depends on the context. Indonesia looks good among its neighbours in Southeast Asia in terms of protection of civil and political rights, and to some extent economic, social and cultural rights, although room for improvements exists.

But one of the promises of the current president, Joko Widodo, during his 2014 campaign was about international criminal justice, which involves rights for many victims of past cases of human rights abuses in Indonesia. In that sense, it does not protect these rights, including the rights to justice, truth, reparations or guarantees of non-recurrence.

For example, in the case of the conflict over independence for East Timor in 1999, there were many gross violations of human rights. However, there has never been any sort of effective judicial process to address gross violations of human rights, and crimes against humanity in particular.

In 1965–66, during the government’s violent anti-communist operations, 500,000 people or more were killed. Indonesia’s National Commission on Human Rights was tasked with conducting an investigation into this period within its limited mandate, but it led to nothing; there have never been any prosecutions relating to these crimes.

The election promise of the current president was to deal with a number of these past human rights cases, and this promise has not been met at all. His opponent in 2014, Prabowo Subianto, was a former military general involved in alleged past human rights abuses, so it was politically expedient to make such a promise. But it has not been pursued in office.

In 2000, Indonesia established its own Human Rights Court. What is your assessment of its record?

Some human rights activists suggested that the establishment of the Human Rights Court took place under international pressure following the independence of East Timor. To avoid international scrutiny, for example the creation of an ad hoc international tribunal, the government established this court.

Based on the report of the International Commission of Inquiry on East Timor in 2000, it was indeed recommended that an international human rights tribunal be set up. Indonesian government rejected the proposal with strong assurances that it would provide justice for atrocities committed by its nationals. So it is fair for some to see the establishment of Indonesia’s Human Rights Court as a political move by the government at that time, in order to avoid scrutiny by the international community.

When it comes to performance, the Human Rights Court actually investigated and prosecuted cases relating to atrocities in East Timor. There were around 100 suspects identified, and 18 were put on trial. Out of these 18, only one trial, of Eurico Guterres, ended in a conviction for crimes against humanity. However, the Indonesian Supreme Court cleared Guterres of all charges in 2008. So the Human Rights Court did take steps, but the net result amounted to essentially nothing. Impunity remains.

So it has not lived up to its mandate, but there is another factor, which is that the founding law of the Human Rights Court does not accommodate international standards of criminal justice. It only covers two of the four categories of crime as outlined in the Rome Statute – crimes against humanity and genocide. It also does not provide adequate protection for victims and witnesses. So there are issues not only with the performance of the Human Rights Court but also with the legislation establishing it.

Why hasn’t Indonesia become a party to the Rome Statute to join the ICC?

The main opposition came from the military, because they were afraid of being targeted by the ICC. There was also a lot of discussion about Indonesia’s ‘sovereign right to prosecute’.

But what those opposing failed to understand is that the ICC is bound by temporal and territorial boundaries, meaning that it will not intervene if the state in question is able and willing to prosecute. So I think accession to the Rome Statute has not taken place because of this misunderstanding.

I think another factor since this was initially raised is there is a focus on other issues. Indonesia is an emerging country economically; there is a focus on building infrastructure. So many in government feel like they are done with the past. But for the millions of victims of past crimes and their families, the past is not done.

So it’s very important at this point in the country’s history to revisit the commitment to international criminal justice to be able to contribute to sustainable peace and development.

What steps could the Indonesian government take to improve how it handles these issues?

The establishment of the Human Rights Court was an important starting point, but clearly there has to be significant reform, both in terms of the substantive law underpinning it and its procedures.

Clearly the domestic laws need to be reformed, but also, an effort needs to be made to improve the courts capacity in terms of manpower and logistical support. This is why the government needs to restart the discussion about becoming a party to the Rome Statute. Through the outreach programme of the ICC, this would give the Human Rights Court the capacity, in terms of manpower and logistical support, to tackle past human rights violations in Indonesia, which the Human Rights Court is currently lacking.

Only if these two steps are taken – reforming the domestic Human Rights Court and restarting discussion about becoming a party to the Rome Statute – will the Indonesian government be able to say it has made progress on international criminal justice.

The Indonesian government is actually running for a seat on the UN Security Council for the period of 2019–20. So I think it is an urgent discussion that the Indonesian government needs to have before it makes another pledge to contribute to the maintenance of international peace and security. It is difficult to have sustainable peace without justice.




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Cyber and International Law in the 21st Century

Research Event

23 May 2018 - 9:00am to 10:00am

Chatham House | 10 St James's Square | London | SW1Y 4LE

Event participants

Rt Hon Jeremy Wright QC MP, Attorney General, UK
Chair: Elizabeth Wilmshurst CMG, Distinguished Fellow, Chatham House

Cyber intrusions do not respect international borders. At this event, the attorney general will discuss how to apply and shape international law in order to ensure the rules-based international system can adapt to the threats – and opportunities – posed by cyber into the future.

 




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China and the International Order

Invitation Only Research Event

21 November 2018 - 12:30pm to 2:00pm

Chatham House | 10 St James's Square | London | SW1Y 4LE

Event participants

Harriet Moynihan, Associate Fellow, International Law Programme, Chatham House
Dr Champa Patel, Head, Asia-Pacific Programme, Chatham House
Chair: Rod Wye, Associate Fellow, Asia-Pacific Programme, Chatham House

In 2014, the Chinese government announced its intention to strengthen China's discourse power and influence in international legal affairs. Since then, the International Law Programme and Asia-Pacific Programmes at Chatham House have been evaluating the increasing emphasis on international law in China's global governance agenda. Our research includes the hosting of roundtables with a global network of international lawyers including leading Chinese academics.

This meeting will discuss insights emerging from two recent roundtables held in Beijing(opens in new window) and New York in 2018. The Beijing roundtable focussed on China’s approach to emerging areas of international law, including the law applicable to cyber operations, the Arctic, dispute settlement and business and human rights. The New York roundtable discussed the international law relating to peace and security including use of force, sanctions, international humanitarian law applicable to peacekeepers, international criminal law including the crime of aggression and human rights, peace and security.

Harriet Moynihan will discuss China's ambitions to play a more influential role in shaping international law drawing on findings from both roundtables. The meeting will also consider how China's ambitions for the international order fit within China's foreign and domestic policy agenda and changes to global governance generally.

Attendance at this event is by invitation only. 

Chanu Peiris

Programme Manager, International Law
+44 (0)20 7314 3686




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Bolton’s Attack on the International Criminal Court May Backfire

20 September 2018

Dr Max du Plessis SC

Associate Fellow, International Law Programme
The US national security advisor’s recent threats look damaging but they may in fact strengthen support for the ICC from other states.

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John Bolton speaks to the Federalist Society on 10 September. Photo: Getty Images.

On 10 September, US National Security Advisor John Bolton used his first major speech since joining the White House to attack the International Criminal Court’s (ICC) potential investigation of American personnel in Afghanistan. The ‘American patriots’, as Bolton describes them, are being investigated for potential torture and ill-treatment of detainees, mostly in 2003 and 2004, during the United States-led invasion of the country.

Bolton has a long history of opposition to the ICC. Although the US signed the ICC Statute under president Bill Clinton, it was ‘unsigned’ by Bolton, then an under-secretary of state in the George W Bush administration.

And when the court first opened its doors in 2002, Bolton helped secure, in what he described on 10 September as one of his ‘proudest achievements’, around 100 bilateral agreements with other countries to prevent them from delivering US personnel to the ICC. Those agreements were often extracted under pressure, with the US threatening to cut off military and other aid to countries that refused to sign.

In recent years under the Obama administration, relations between the US and the ICC improved, and the US offered help and support to the court. Bolton’s attack is aimed at reversing those gains – with measures aimed directly at the court and its staff.

These include: (i) negotiating ‘even more binding, bilateral agreements to prohibit nations from surrendering US persons to the ICC’; (ii) banning ICC judges and prosecutors from entering the US, sanctioning their funds in the US financial system and prosecuting them in the US criminal courts (and doing the ‘same for any company or state that assists an ICC investigation of Americans’); and (iii) ‘taking note if any countries cooperate with ICC investigations of the United States and its allies, and remember[ing] that cooperation when setting US foreign assistance, military assistance and intelligence sharing levels’.

These are serious threats – they would potentially undermine the work of a court that is designed to prosecute the world’s worst crimes. The ICC prosecutor and its judges would be barred entry from the US to attend to vital work of the court.

Some of that work, ironically, is at the behest of the US. For instance, two of the UN Security Council’s referrals to the ICC, one in relation to atrocities committed in Sudan, the other in respect of the crimes committed by Muammar Gaddafi in Libya, were referred with US support. 

Also, the meetings of the ICC Assembly of States Parties are held each year at UN headquarters in New York. Those meetings may have to be held elsewhere if the ICC judges and staff are under threat of arrest.

In the case of the potential torture linked to operations in Afghanistan, the ICC has not been acting on its own initiative in investigating. For example, the Center for Constitutional Rights submitted ‘victim’s representations’ to the ICC on behalf of two of their clients, Sharqawi Al Hajj and Guled Hassan Duran, emphasizing the importance of an ICC investigation of US officials for serious crimes arising out of post-9/11 detention and interrogations.

According to the center, both Al Hajj and Duran were detained by the CIA in black sites or 'proxy-detention' by other countries, tormented and tortured.

Although the US is not a party to the ICC Statute, Afghanistan is, and therefore the court has jurisdiction over US nationals who allegedly committed atrocities in Afghanistan. And it should be noted that the investigation includes pursuing any atrocities committed by the Taliban and Afghan security forces during the same period.

So the basis for attacking the work of the ICC based on this is shaky, and Bolton’s threats raise a number of important international law questions going forward. 

For one, they may be unlawful retaliatory steps, given that the US has obligations to accord at least some privileges and immunities to judges and other personnel of the ICC under the 1947 UN Headquarters Agreement between the UN and US. Counter-measures might be considered by member states of the ICC, either alone, or collectively. 

In this regard, Bolton’s comments about the EU will not go unnoticed: he suggests Europe is a region where ‘the global governance dogma is strong’. The US may yet come to learn just how strong that ‘dogma’ is.

With US abstention from the ICC, the opening remains for Europe and other regions to position themselves at the heart of the international criminal justice regime, thereby – as in response to the US attitude towards climate change – building a network of partnerships with other like-minded nations to compensate for US disengagement.

Further, while the ICC has many critics, and could be improved as an institution, Bolton’s speech may have the effect of galvanizing support for the world’s first permanent international criminal court. That could be a good thing for the court, which is sorely in need of support for its work.

Whatever concerns states may have about the ICC, they may be outweighed by a mutual desire to stand up to perceived bullying by the Trump administration, in favour of the international rule of law. 




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Exploring Public International Law and the Rights of Individuals with Chinese Scholars - Part One

17 April 2014

As part of a roundtable series, Chatham House and China University of Political Science and Law (CUPL) jointly organized this four-day meeting at Chatham House for international lawyers to discuss a wide range of issues related to public international law and the rights of individuals.

Sonya Sceats

Associate Fellow, International Law Programme

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The Representative of China at the 19th Session of the Human Rights Council, Palais des Nations, Geneva. 27 February 2012. Photo: UN Photo Geneva/Violaine Martin.

The specific objectives were to:

  • create a platform for Chinese international law academics working on international human rights law issues to present their thinking and exchange ideas with counterparts from outside China;
  • build stronger understanding within the wider international law community of intellectual debates taking place in China about the international human rights system and China's role within it;
  • support networking between Chinese and non-Chinese academics working on international human rights and related areas of international law.

The roundtable forms part of a wider Chatham House project exploring China's impact on the international human rights system and was inspired by early discussions with a burgeoning community of Chinese academics thinking, writing (mainly in Chinese) and teaching about international human rights law.

For China University of Political Science and Law, one of the largest and most prestigious law schools in China and perhaps the only university in the world with an entire faculty of international law, the initiative is part of a drive to forge partnerships beyond China in the international law field.

The roundtable had a total of 22 participants, 10 Chinese (from universities and other academic institutions in Beijing and Shanghai) and 12 non-Chinese (from Australia, Germany, the Netherlands, Switzerland, the United Kingdom and the United States).

All discussions were held in English under the Chatham House Rule.




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Exploring Public International Law and the Rights of Individuals with Chinese Scholars - Part Two

15 November 2014

As part of a roundtable series, Chatham House and China University of Political Science and Law (CUPL) held a two-day roundtable meeting in Beijing on public international law and the rights of individuals.

Sonya Sceats

Associate Fellow, International Law Programme

20140624ChinaHumanRights.jpg

The Representative of China at the 19th Session of the Human Rights Council, Palais des Nations, Geneva. 27 February 2012. Photo: UN Photo Geneva/Violaine Martin.

The specific objectives were to:

  • create a platform for Chinese international law academics working on international human rights law issues to present their thinking and exchange ideas with counterparts from outside China;
  • build stronger understanding within the wider international law community of intellectual debates taking place in China about the international human rights system and China's role within it;
  • support networking between Chinese and non-Chinese academics working on international human rights and related areas of international law.

The roundtable forms part of a wider Chatham House project exploring China's impact on the international human rights system and was inspired by early discussions with a burgeoning community of Chinese academics thinking, writing (mainly in Chinese) and teaching about international human rights law.

For CUPL, one of the largest and most prestigious law schools in China and perhaps the only university in the world with an entire faculty of international law, the initiative is part of a drive to forge partnerships beyond China in the international law field.

The meeting in Beijing was hosted by CUPL and involved 20 participants, 10 Chinese (from universities and other academic institutions in Beijing) and 10 non-Chinese (from Australia, the Netherlands, South Africa, Switzerland, the United Kingdom and the United States).

To ensure continuity while also expanding the experts network being built, the second meeting included a mix of participants from the first meeting and some new participants.

All discussions were held in English under the Chatham House Rule.




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Exploring Public International Law and the Rights of Individuals with Chinese Scholars - Part Three

6 March 2016

As part of a roundtable series, Chatham House, China University of Political Science and Law (CUPL) and the Graduate Institute Geneva held a two-day roundtable meeting in Geneva on public international law and the rights of individuals.

Sonya Sceats

Associate Fellow, International Law Programme

20140624ChinaHumanRights.jpg

The Representative of China at the 19th Session of the Human Rights Council, Palais des Nations, Geneva. 27 February 2012. Photo: UN Photo Geneva/Violaine Martin.

The specific objectives were to:

  • create a platform for Chinese international law academics working on international human rights law issues to present their thinking and exchange ideas with counterparts from outside China;
  • build stronger understanding within the wider international law community of intellectual debates taking place in China about the international human rights system and China's role within it;
  • support networking between Chinese and non-Chinese academics working on international human rights and related areas of international law.

The roundtable forms part of a wider Chatham House project exploring China's impact on the international human rights system and was inspired by early discussions with a burgeoning community of Chinese academics thinking, writing (mainly in Chinese) and teaching about international human rights law.

For CUPL, one of the largest and most prestigious law schools in China and perhaps the only university in the world with an entire faculty of international law, the initiative is part of a drive to forge partnerships beyond China in the international law field.

The meeting in Geneva was co-hosted by the Graduate Institute Geneva and involved 19 participants, 9 Chinese (from six research institutions in Beijing and Shanghai) and 11 non-Chinese (from eight research institutions in Australia, Germany, the Netherlands, Switzerland, the United Kingdom and the United States).

To ensure continuity while also expanding the expert network being built, the third meeting included a mix of participants from the first two meetings and some new participants

All discussions were held in English under the Chatham House Rule.




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Exploring Public International Law Issues with Chinese Scholars – Part Four

3 June 2018

As part of a roundtable series, Chatham House and the China University of Political Science and Law (CUPL) held a two-day roundtable in Beijing on emerging issues of public international law. 

Harriet Moynihan

Senior Research Fellow, International Law Programme

20140624ChinaHumanRights.jpg

The Representative of China at the 19th Session of the Human Rights Council, Palais des Nations, Geneva. 27 February 2012. Photo: UN Photo Geneva/Violaine Martin.

The specific objectives were to:

  • create a platform for Chinese international law academics working on international human rights law issues to present their thinking and exchange ideas with counterparts from outside China;
  • build stronger understanding within the wider international law community of intellectual debates taking place in China about the international human rights system and China's role within it;
  • support networking between Chinese and non-Chinese academics working on international human rights and related areas of international law.

The roundtable forms part of a wider Chatham House project exploring China's impact on the international human rights system and was inspired by early discussions with a burgeoning community of Chinese academics thinking, writing (mainly in Chinese) and teaching about international human rights law.

For CUPL, one of the largest and most prestigious law schools in China and perhaps the only university in the world with an entire faculty of international law, the initiative is part of a drive to forge partnerships beyond China in the international law field.

The meeting was co-hosted with CUPL and involved 28 participants, consisting of 19 Chinese participants (from six leading research institutions in Beijing and Shanghai) and nine nonChinese participants (from eight leading research institutions in Australia, the Netherlands, the UK, Switzerland, Canada and Singapore).

To ensure continuity while also expanding the expert network being built, the fifth meeting included a mix of participants from the previous meetings and some new participants.

All discussions were held in English under the Chatham House Rule.




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Security and Prosperity in the Asia-Pacific: The Role of International Law

Research Event

27 March 2019 - 10:00am to 5:00pm

Chatham House | 10 St James's Square | London | SW1Y 4LE

Event participants

Koji Tsuruoka, Ambassador of Japan to the United Kingdom
Ben Saul, Associate Fellow, International Law Programme, Chatham House; Challis Chair of International Law, Australian National University
Lee Chen Chen, Director, Singapore Institute of International Affairs
Aniruddha​ Rajput, Member, UN International Law Commission; Consultant, Withersworldwide

 

The rapid growth in the Asia-Pacific’s economic and political power has significant implications for global governance. Asia-Pacific countries such as Japan, India and China – and regional bodies such as ASEAN – are increasingly informing, influencing and seeking to shape international standards and norms.

This conference will bring together international law and policy experts to explore the political and legal dynamics affecting economic relations, security challenges and maritime governance in the region.

Given security and prosperity challenges within the region as well as the increasingly complex environment for global governance, to what extent is international law operating as a tool of cooperation in the Asia-Pacific? In which areas is it a source of friction?

And what are the broader implications for global governance including the development of international law?

Chanu Peiris

Programme Manager, International Law
+44 (0)20 7314 3686




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State Cyber Interventions Below the Threshold of the Use of Force: Challenges in the Application of International Law

Invitation Only Research Event

30 April 2019 - 10:00am to 4:00pm

Chatham House | 10 St James's Square | London | SW1Y 4LE

Event participants

Chair: Elizabeth Wilmshurst, Distinguished Fellow, International Law Programme, Chatham House

Under what circumstances will a state-sponsored cyberattack on another state that falls below the threshold of the use of force be a breach of international law – for example, hacking into another state’s electoral databases, usurping inherently governmental functions such as parliamentary processes or an attack on another state’s financial system? In the dynamic field of state cyber operations, persistent, low-level cyberattacks are increasing, as are multilateral attempts to attribute the attacks to the states responsible. There is general agreement that international law applies to cyberspace but the question is how it applies and with what consequences.     
   
This meeting will bring together a small group of academics and practitioners to explore the application of international law to states’ cyber operations that interfere in the internal affairs of another state and which fall below the threshold of the use of force. What is the law on non-intervention in international law and how does it apply to states’ cyber activities? Does the Nicaragua case represent the best expression of the law in this area including the requirement of coercion? And are there any other principles of international law that are relevant? The meeting will also consider processes and procedures for agreeing on the law and best practices.
 
The purpose of the meeting will be to inform a research paper by Chatham House.
 
Attendance at this event is by invitation only.

Event attributes

Chatham House Rule

Department/project




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Strengthen the International Criminal Court

12 June 2019

Elizabeth Wilmshurst CMG

Distinguished Fellow, International Law Programme
The ICC has been criticized for slow proceedings, weak management and ineffective prosecutions. The good news is that pragmatic reform need not entail fundamental treaty amendment; a culture change and more realistic expectations would go a long way.

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Laurent Gbagbo looks on next to his lawyer Emmanuel Altit before the start of his trial at the ICC on 28 January 2016. Photo by Getty Images.

The 1998 treaty which established the International Criminal Court (ICC) was adopted at a time when the world (or most of it) was willing to reach multilateral agreements on a variety of topics and was encouraging the development of international criminal justice. The two tribunals, set up by the UN Security Council, for the former Yugoslavia and for Rwanda had been relatively successful. The time was ripe for states to agree together to set up a permanent international court with wider scope than the two tribunals.

So the ICC was created, with jurisdiction over the international crimes of genocide, crimes against humanity and war crimes; its jurisdiction for the crime of aggression developed later. The court was given the power to prosecute nationals of states that were parties to the ICC Statute, and also to prosecute where the crime was committed in the territory of a state party, whatever the nationality of the alleged criminals. The court had further jurisdiction when the Security Council referred a situation to it.

That was some 20 years ago. There is now a perception in many quarters that the ICC has not fulfilled the expectations of its founders. The court’s proceedings are cumbersome and lengthy. Many of the accused are still at large, including Omar al-Bashir, the former president of Sudan. Some €1.5 billion has been spent, and there have been only three convictions for the core international crimes.

There have been criticisms of the judges, the former Prosecutor and other officials, as well as concern over particular decisions of the court. The allegation that the court is only interested in crimes in Africa[1] is perhaps heard less frequently now than it once was (most of the African governments concerned referred the situations in their countries to the ICC themselves), and there has not been the mass walk-out of African states that was once predicted.

Our Shared Humanity: The Arc of Intervention

From Bosnia to the Brahimi Report and from Rwanda to R2P, Annan played a significant role in many critical moments that shaped approaches to peacekeeping and to the protection of civilians. What was the impact?

But in other quarters there is serious unease about the situation in the court. As the UK representative said at a meeting last year, ‘We cannot bury our heads in the sand and pretend everything is fine when it isn’t.’[2]

The negative assessment of the ICC’s work may be countered by the fact that it is the failure of states to cooperate with the court that causes many of the problems. Further, the expectations of states and civil society about the possibilities of international criminal justice have been so high that no court would be able to meet them. It is not possible for one court actually to ‘end impunity’ for international crimes,[3] nor to prevent war-related violence and mass atrocities, nor to satisfy all victims.

Moreover, the criticisms of the ICC come against the background of the global crisis for multilateralism more generally. The present US administration is notoriously hostile towards this international institution.[4]

On the plus side, the establishment of the court has encouraged states to revise their own laws on international crimes and to institute their own prosecutions where it is possible to do so. It is also claimed that the very existence of the court can be a deterrent to potential perpetrators of international crimes. The court has begun to add to the body of international criminal law and has increased the possibility that mass atrocities will be investigated.

But there is indeed some truth in the criticisms made of the internal workings of the court. One problem is that the particular combination of the civil and common law systems that has developed has produced cumbersome procedures regarding the representation of victims at most stages of the proceedings. It has also resulted in endless appeals from huge numbers of small decisions made by one chamber or another.

Then there are the management failures which have led to officials of the court being awarded compensation by the administrative tribunal of the International Labour Organization (ILO) because of the way they were treated by the court, and finally the decision of a few of the judges to take proceedings themselves at the ILO to have their salaries increased. 

Some ICC decisions have been met with surprise. For example, a former vice-president of the Democratic Republic of the Congo, Jean-Pierre Bemba, who was in the custody of the ICC for 10 years, was convicted by a unanimous trial chamber of various crimes and then succeeded on his appeal. Following this and the acquittal of former Côte d’Ivoire president Laurent Gbagbo,[5] there are concerns about the ability of the prosecution to succeed in cases against high-level alleged perpetrators.

Most recently, there has been criticism of the reasoning behind the appeal court decision regarding the immunity – or, rather, lack of immunity – of former president Bashir. And a decision of a chamber of the ICC not to authorize the opening of an investigation in Afghanistan has been seen as shielding the US from possible proceedings (though it has been welcomed by others as a pragmatic approach).

The message that certain problems with the ICC need fixing is coming not just from the writings of academics and the legal blogs,[6] but from governments too, including those, like the UK, which are among the foremost supporters of the court.

The former presidents of the ICC’s Assembly of States Parties (which comprises the representatives of all states parties) say that they ‘are disappointed by the quality of some of [the court’s] judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the Court from living up to its full potential’.[7] 

Changes to remove the worst excesses of the procedures that have evolved could be effected without amendments to the treaty incorporating the ICC Statute. It may be that a change in culture is also needed. More modesty by the court, along with more realism from governments and civil society, is needed.

And, attractive as it might seem to push at the boundaries of the law, the court should be realistic in what it can achieve. It is next to impossible to prosecute a case effectively where there is no cooperation from the state on whose territory the crimes were committed.

What is needed is a court that can undertake efficient and effective criminal proceedings, delivering fair and impartial justice in the small number of cases which it is reasonable to expect it to address, in the light of the evidential challenges, limited resources and limited state cooperation.

Governments should decide together at the Assembly of States Parties to set in hand a review of the ICC’s operations. It has been suggested that a group of experts might be mandated to assess the management of the court;[8] on the basis of their report, governments could agree on the necessary improvements.

Not everything, however, can come within the remit of such a group. Governments should adopt new rules and practices to address matters such as the election process for judges and their training; governments might consider reaching their own understandings on how some provisions of the ICC Statute should be interpreted in practice. Governments should reach out to the many civil society organizations which have supported the court over the years, to ensure that they are involved in the process.

Measures of this kind cannot detract from the fact that the ICC is fundamentally sound and that its role is as necessary as when it was first established. As Richard Goldstone, former chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, has said, ‘If there were no ICC in existence today, many people in many countries would be agitating for and demanding one. That we have one is a singular achievement. It behoves us to make it the best possible and to assist it, as States, civil society, and individuals, in the best and most productive way possible.’[9]

What needs to happen

  • Cumbersome procedures, ineffective prosecutions against high-level alleged perpetrators, and weak internal management are among current criticisms of the ICC.
  • Improvements to the court’s effectiveness and credibility may be possible without amending the treaty incorporating the ICC Statute.
  • The Assembly of States Parties should review the ICC’s operations, whether or not with a group of experts, and governments should agree on improvements.
  • New rules and practices should address matters such as the election process for judges and their training.
  • Better management of expectations of the ICC among governments, civil society and the court itself is needed.
  • Governments might consider reaching their own understandings on how some provisions of the ICC Statute should be interpreted in practice.
  • Civil society organizations should be involved in any procedures for reform.

Notes

[1] See, for example, du Plessis, M., Maluwa, T. and O’Reilly, A. (2013), Africa and the International Criminal Court, London: Royal Institute of International Affairs, July 2013, https://www.chathamhouse.org/publications/papers/view/193415.

[2] GOV.UK (2018), ‘UK statement to ICC Assembly of States Parties 17th session’, 5 December 2018, https://www.gov.uk/government/speeches/uk-statement-to-icc-assembly-of-states-parties-17th-session.

[3] As the preamble to the ICC Statute desires. See ICC (2011), Rome Statute of the International Criminal Court, p. 1, https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf.

[4] See the speech of John Bolton, US National Security Advisor. Just Security (2018), ‘Bolton’s Remarks on the International Criminal Court’, 10 September 2018, https://www.justsecurity.org/60674/national-security-adviser-john-bolton-remarks-international-criminal-court/.

[5] Gbagbo was accused of various crimes which took place after Côte d’Ivoire’s election in 2010, in which Gbagbo lost power to Alassane Ouattara. The case was terminated by the court following a year’s hearings in which the prosecution put forward its evidence.

[6] See, for example, Guilfoyle, D. (2019), ‘Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?’, EJIL:Talk! blog post, 8 May 2019, https://www.ejiltalk.org/reforming-the-international-criminal-court-is-it-time-for-the-assembly-of-state-parties-to-be-the-adults-in-the-room/.

[7] Al Hussein, Z. R., Stagno Ugarte, B., Wenaweser, C. and Intelman, T. (2019), ‘The International Criminal Court Needs Fixing’, Atlantic Council, 24 April 2019, https://www.atlanticcouncil.org/blogs/new-atlanticist/the-international-criminal-court-needs-fixing.

[8] Ibid.

[9] Goldstone, R. (2019), ‘Acquittals by the International Criminal Court’, EJIL:Talk! blog post, 18 January 2019, https://www.ejiltalk.org/acquittals-by-the-international-criminal-court/. Richard Goldstone is also a former justice of the Constitutional Court of South Africa.

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.




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Tackling Cyber Disinformation in Elections: Applying International Human Rights Law

Research Event

6 November 2019 - 5:30pm to 7:00pm

Chatham House | 10 St James's Square | London | SW1Y 4LE

Susie Alegre, Barrister and Associate Tenant, Doughty Street Chambers
Evelyn Aswad, Professor of Law and the Herman G. Kaiser Chair in International Law, University of Oklahoma
Barbora Bukovská, Senior Director for Law and Policy, Article 19
Kate Jones, Director, Diplomatic Studies Programme, University of Oxford
Chair: Harriet Moynihan, Associate Fellow, International Law Programme, Chatham House

Cyber operations are increasingly used by political parties, their supporters and foreign states to influence electorates – from algorithms promoting specific messages to micro-targeting based on personal data and the creation of filter bubbles.
 
The risks of digital tools spreading disinformation and polarizing debate, as opposed to deepening democratic engagement, have been highlighted by concerns over cyber interference in the UK’s Brexit referendum, the 2016 US presidential elections and in Ukraine. 
 
While some governments are adopting legislation in an attempt to address some of these issues, for example Germany’s ‘NetzDG’ law and France’s ‘Law against the manipulation of information’, other countries have proposed an independent regulator as in the case of the UK’s Online Harms white paper. Meanwhile, the digital platforms, as the curators of content, are under increasing pressure to take their own measures to address data mining and manipulation in the context of elections. 

How do international human rights standards, for example on freedom of thought, expression and privacy, guide the use of digital technology in the electoral context? What practical steps can governments and technology actors take to ensure policies, laws and practices are in line with these fundamental standards? And with a general election looming in the UK, will these steps come soon enough?
 
This event brings together a wide range of stakeholders including civil society, the tech sector, legal experts and government, coincides with the publication of a Chatham House research paper on disinformation, elections and the human rights framework

Jacqueline Rowe

Programme Assistant, International Law Programme
020 7389 3287




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Sovereignty and Non-Intervention: The Application of International Law to State Cyberattacks

Research Event

4 December 2019 - 5:30pm to 7:00pm

Chatham House | 10 St James's Square | London | SW1Y 4LE

Event participants

Douglas, Legal Director, GCHQ
Zhixiong Huang, Luojia Chair of International Law, Wuhan University
Nemanja Malisevic, Director of Digital Diplomacy, Microsoft
Harriet Moynihan, Associate Fellow, International Law Programme, Chatham House
Chair: Elizabeth Wilmshurst, Distinguished Fellow, International Law Programme, Chatham House

International law applies to cyber operations – but views differ on exactly how. Does state-sponsored interference in another state's affairs using cyber means – for example,  disinformation campaigns in elections, disabling government websites, or disrupting transport systems – breach international law? If so, on what basis and how are the principles of sovereignty and non-intervention relevant? States are increasingly attributing cyber operations to other states and engaging in the debate on how international law applies, including circumstances that would justify countermeasures.

As states meet to debate these issues at the UN, the panel will explore how international law regulates cyberoperations by states, consider the prospects of progress at the UN, and assess the value of other initiatives.

This event coincides with the launch of a Chatham House research paper which analyses how the principles of sovereignty and intervention apply in the context of cyberoperations, and considers a way forward for agreeing a common understanding of cyber norms.

This event will bring together a broad group of actors, including policymakers, the private sector, legal experts and civil society, and will be followed by a drinks reception.

 

Jacqueline Rowe

Programme Assistant, International Law Programme
020 7389 3287




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Security and Prosperity in Asia: The Role of International Law

1 November 2019

The 'Security and Prosperity in Asia' conference looked at the impact of international law in the Asia-Pacific with a focus on regional economic and security issues such as the South China Sea disputes.

Security and Prosperity in Asia Cover Image.jpg

Singapore skyline at sunset, 2016. Photo: Getty Images.

About the Conference

At a time of geopolitical uncertainty and with multilateralism under pressure, this conference brought together diverse actors to explore the evolving role of international law on critical security and economic issues in the Asia-Pacific. From trade agreements to deep-sea mining, cyberwarfare to territorial disputes, the breadth of the discussion illustrated the growing reach of international law in the region.

Hosted by the International Law Programme and the Asia-Pacific Programme at Chatham House on 27 March 2019, the conference focused on three themes: trade and investment, maritime security and governance, and emerging security challenges. What trends are emerging in terms of engagement with international law in the region, and how can international standards play a greater role in encouraging collaboration and reducing tensions? And, with the eastward shift in geopolitical power, how will Asia-Pacific states shape the future of international law?