Source: Hosny Salah

This piece is part of the American Branch’s third blogging symposium, examining the ILW 2025 theme of ‘Crisis as Catalyst in International Law’ from an International Humanitarian Law perspective. The International Humanitarian Law Committee sponsors this symposium; however, the views expressed in published works are solely those of the authors.

Recalibrating the Proportionality Calculus to Include Mental Collateral Damage

by Natasha Arnpriester*

In a Gaza shelter, a displaced child tells a mental health worker: “I think I am dead, but if you can hear me, maybe I am alive.” This is dissociation, an acute psychological response from a young mind overwhelmed by war.

This single moment distills a wider catastrophe. In Gaza, nearly 84% of civilians meet the diagnostic criteria for post-traumatic stress disorder (PTSD), and almost 90% suffer significant psychological distress. The World Health Organization has called the mental toll “unspeakable,” as children endure nightmares, bedwetting, mutism, acute anxiety, and physical pain rooted not in physical injury, but mental trauma.

International Humanitarian Law (IHL) restrains harm in armed conflict by regulating how it is fought, balancing military necessity with the imperative to protect civilians from unnecessary suffering. At its core is the principle of proportionality, which prohibits attacks when the expected civilian harm, so-called “collateral damage,” would be excessive in relation to the anticipated military advantage.

IHL defines collateral damage as the “incidental loss of civilian life, injury to civilians, and damage to civilian objects.” But “injury” here is understood only in physical terms. Injuries that are psychological in nature do not count.

Operationally, the principle of proportionality functions like a scale: if anticipated civilian harm outweighs the military gain, the attack is unlawful; if not, it may proceed. But by excluding mental harm from this calculation, the law blinds itself to one of war’s most devastating and enduring consequences.

Psychological injury in armed conflict is not anecdotal, but an epidemiological reality. PTSD, for instance, whether triggered by direct threats or by witnessing harm to others, can hollow out a life from within. It drives people into isolation, robs them of their livelihoods, traps them in a state of unrelenting fear, fuels addiction, and pushes some to the brink of suicide.

The data is stark. In Afghanistan, decades of conflict have produced some of the highest global rates of trauma, anxiety, and depression, even among those never physically injured. In Ukraine, the share of civilians with PTSD symptoms surged from 27% before the full-scale invasion to 74%. In Yemen, one in four people lives with war-inflicted psychological trauma. Among Syrian refugees in Germany, around half live with PTSD, and 40% have contemplated or attempted suicide. After the Gulf War, more than 70% of Kuwaiti children developed PTSD; among a sample of war-affected Kurdish children, the figure reached a staggering 87%.

And mental harm often becomes physical. It raises the risk of heart disease, stroke, cancer, and other serious illnesses. In Beirut, civilians exposed to war trauma were two to three times more likely to die prematurely than those spared such exposure. Neuroscientific studies show that psychological trauma can alter brain chemistry and even its physical structure in ways that degrade physical health over time.

Psychological injury in war is not new. Accounts stretch from ancient Mesopotamia to “shell shock” in World War I. But modern military technology has diversified, and, in some cases, intensified that trauma.

Take combat drones. Praised for their precision and supposed ability to spare civilians, they are often portrayed as a cleaner form of warfare. Yet this claim rests on an incomplete calculus. Judged only by immediate physical harm, drones may seem benign; measured by their psychological toll, they can be devastating.

Mental health experts have described the U.S. drone program as causing suffering on an “unprecedented scale,” with civilians exhibiting high rates of depression, anxiety, hallucinations, psychosis, and schizophrenia.  A joint report by Stanford and New York University law schools documented communities under constant drone surveillance and strikes enduring severe emotional breakdowns, exaggerated startle responses, withdrawal, hallucinations, and suicidal ideation. In Yemen, a psychologist found 92% of residents in drone-affected areas met the criteria for PTSD. In Ukraine, “droneophobia” has entered the popular lexicon, as psychiatrists report a surge in “mental health injuries” tied directly to drone exposure. Experts liken these psychological scars to those of torture victims—people subjected to “inescapable and uncontrollable stressor events.”

Drone warfare lays bare the glaring gap in the current IHL proportionality analysis. Under prevailing interpretation, a strike expected to kill only a combatant and cause no physical civilian injury is deemed entirely lawful. Yet if mental harm were counted as collateral damage, some such operations would fail a proportionality test.

When no physical injury is anticipated, proportionality almost always tips toward military necessity, even if the psychological toll is widespread and severe. In this blind spot, even a trivial military gain outweighs what the law records as “zero” civilian harm. That legal green light can be given again and again: a strike in the morning, another at noon, another at night, day after day, each one deemed lawful, while civilians live in constant terror.

On paper, the harm does not exist. In reality, it is measurable, profound, and often as devastating as any physical wound. And as weapons and targeting systems grow ever more precise, the risk of overuse only grows precisely because physical damage appears reduced.

Closing this gap matters. Incorporating mental harm into the collateral damage calculus would compel more discriminating operational choices, forcing decision-makers to weigh military necessity against the full spectrum of civilian suffering; sparing countless civilians from an injury that may be invisible, yet no less real.

Critics may argue that psychological harm is too diffuse or unpredictable to factor into proportionality. Yet proportionality assessments already operate under uncertainty. Military decision-makers routinely forecast civilian harm and anticipated military advantage with incomplete data. The same is true in psychology, where researchers regularly model mental harm using established diagnostic criteria, population surveys, and predictive epidemiology. Difficulty in measurement does not erase the fact that psychological harm is real, foreseeable, and, like physical harm, susceptible to reasonable estimation.

There are workable ways to estimate, or at least meaningfully consider, potential psychological harm. One practical starting point could be to adapt the “zone of impact” approach long used in U.S. tort law and disaster compensation. Under the “zone of danger” rule, plaintiffs can recover damages for emotional distress without physical injury if they were in an area of immediate risk of physical harm. After the September 11 attacks, the federal Victim Compensation Fund operationalized this, recognizing PTSD, depression, and anxiety as compensable harms for those within a defined “exposure zone,” regardless of physical injury. Those who lost loved ones, witnessed the attacks, or endured the ongoing fear of another strike suffered in ways similar to civilians in war zones.

This framework could be adapted ex ante in armed conflict. First, define the anticipated exposure zone for an operation, whether the blast radius of a missile or the geographic reach of bombardment. Second, estimate the civilian population within that zone. Third, apply epidemiological data from comparable contexts to project the likely prevalence and severity of psychological harm. For example, if a planned drone surveillance operation is projected to cover a town of 5,000 people for several months, prior research from similar environments could indicate that up to 60%, or 3,000 civilians, might develop PTSD or related disorders, even absent physical injury. These projections could then be incorporated into the proportionality analysis alongside anticipated physical casualties and damage to civilian objects.

While the finer points of quantification require further scholarship, the imperative is clear: psychological injury is measurable enough to matter, predictable enough to plan for, and grave enough to demand inclusion in the law’s most consequential battlefield calculus. The growing body of international legal scholarship examining how and why mental harm should be incorporated into proportionality analysis (particularly here, here, and here) is adding important depth to what remains an underdeveloped but vital conversation.

The very purpose of IHL is to limit human suffering, whether inflicted on the body or inscribed on the mind. International law recognizes no distinction, enshrining in the jus cogens ban on torture the condemnation of the deliberate infliction of “severe pain or suffering, whether physical or mental” at the highest level of legal authority. And as “mental torture” is expressly prohibited in Article 17 of the Third Geneva Convention and deemed a grave breach under Article 130 (see also Additional Protocol I, Art. 85(5)), the mental devastation of war must weigh as heavily as physical harm in assessing proportionality, in both moral and legal terms.

The laws of war are meant to preserve a thread of humanity even in humanity’s darkest hour. Yet by defining collateral damage only in physical terms, the proportionality test ignores some of the most devastating consequences of modern conflict. A scale that weighs only deaths and physical injuries tilts IHL’s balance towards military necessity, thus eroding its commitment to humanity.

Recalibrating proportionality to account for psychological injury would not weaken military effectiveness; it would strengthen the law’s legitimacy, ensuring that the shield it promises to civilians is not pierced by wounds it refuses to see. Wars will always exact a cost. If we insist that cost is justified, then we must count every harm, including the ones the law, as presently applied, leaves uncounted.

*Natasha Arnpriester is Senior Legal Counsel at the Open Society Justice Initiative in New York, where she leads transnational litigation on human rights accountability, with a particular focus on communities affected by armed conflict, authoritarian regimes, and structural exclusion. Her litigation strategies center on developing niche and innovative arguments to address complex problems in both domestic and international legal forums, with impacted communities at the core.

The post Recalibrating the Proportionality Calculus to Include Mental Collateral Damage (IHL Symposium) appeared first on ABILA.

Ruined side-street in Shingal (Sinjar) following the war with the Islamic State; Levi Meir Clancy

This piece is part of the American Branch’s third blogging symposium, examining the ILW 2025 theme of ‘Crisis as Catalyst in International Law’ from an International Humanitarian Law perspective. The International Humanitarian Law Committee sponsors this symposium; however, the views expressed in published works are solely those of the authors.

Accountability Without Access: How Non-Military Actors Can Assess Conduct of Hostilities Violations

by Ilya Ivanov*

Disclaimer: The views expressed here are those of the author and do not necessarily reflect the views or positions of the United Nations, the International Committee of the Red Cross, or any other organization with which the author is or has been affiliated. This post reflects only the author’s personal analysis, based solely on publicly available sources. None of the hypothetical examples refer to any specific conflict or investigation, in line with professional confidentiality obligations and in recognition of the need to avoid perceived partiality.

International humanitarian law (IHL) currently faces a two-fold crisis in conduct of hostilities (CoH): a perceived increase in CoH violations and a persistent lack of accountability. To address this, non-military actors, including scholars, NGOs, civil society organizations, and UN-mandated investigative bodies, are increasingly identifying possible CoH violations, often without access to territory or alleged perpetrators. Their work is essential in this context.

Military and state lawyers often criticize such approaches as inherently flawed, for instance, due to the lack of access to information available to commanders at the time of the attack. In this polarizing dynamic, the gap between the military and non-military perspectives on alleged CoH violations widens, even if some may disagree.

Drawing on practical IHL experience, I explore some criticism of non-military actors involved in CoH assessment and outline practical, good faith approaches for improving the credibility and legal rigor of such assessments. I focus on two issues: citing the applicable law and its interpretation, and relying on patterns rather than inferring violations from single instances.

In my suggestions, I attempt to strike a balance between the need for accountability and the reality of IHL as applied on the battlefield. By adhering to higher standards, we can ensure a more constructive dialogue between military and non-military actors, ultimately strengthening accountability for IHL violations.

Legal baselines and interpretative exercises

Do we cite the correct law?

Applying the law in CoH analysis brings two challenges: citing the applicable law and binding rules, and using the appropriate interpretation. If a party to the conflict does not consider the law we cite applicable or binding, why would they take into account our assessment of possible violations?

Citing the applicable law is, admittedly, a minor issue. The usual challenge is referring to CoH rules, well-codified in the Additional Protocol (AP) I , in cases where AP I is not applicable. The typical approach is to note that even if AP I is not directly applicable, it reflects some customary IHL (here on p. 11 or here on p. 28, ft 156). Relatively rarely do authors omit such assertions.

The situation can be more problematic when citing the ICRC’s Customary IHL Study and Database. Identifying custom is a difficult, time- and energy-consuming task – relying on IHL experts who spent almost a decade on the issue seems more efficient. However, the Study remains a non-binding document, containing what the ICRC believes to be customary IHL; authoritative, but not conclusive. Despite the ICRC’s rigorous analysis of the law and practice, the Study has attracted criticism from states and academics. Citing the Study without clarifying that it is not a source of law may easily backfire – especially if the party to the conflict disagrees with the ICRC’s views.

Here, knowledge of interpretations is key. When it comes to AP I, we know that it does not reflect all customary IHL rules on conduct of hostilities – at least not for all states. Even if it reflects custom, as often mentioned by the ICRC, a party to the conflict may openly disagree with such an understanding. Tracking these positions may help draw the attention of people responsible for accountability within the military.

Some divergence in interpretations is even more fundamental. If we consider the principle of military necessity, a cornerstone of IHL, a humanitarian may disagree with a military expert. Should we take a law enforcement-style approach, akin to human rights law (to simplify, ‘using only that amount of force which is necessary’, as suggested by the ICRC on pp. 78-82) or a definition used by the military (to paraphrase a manual, ‘using whatever is necessary as long as it does not violate the law’, p. 52)? If we decide to explicitly promote a more ‘humanitarian’ reading of the rule, a party to the conflict may disregard this and other findings.

It may be tempting to think that an accountability-focused report is a good place to develop the law. In most cases, it is not. Applying an unsettled, progressive understanding of a CoH rule may even make fellow IHL scholars judge the interpretation as overreaching – e.g., when suggesting that AP I, Art. 58 imposes an obligation on defenders to issue warnings (here, para vii). Unsurprisingly, this can trigger a backlash where other alleged violations, even if plausible, are dismissed as part of the same package.

When analyzing CoH violations, we often need to persuade those who hold conservative legal views. This does not mean trying to regress on the law. Instead, a balanced approach that cites what is in fact applicable, uses non-binding documents cautiously, and is aware of divergent views and interpretations is crucial. When not all facts are available, focusing on what is – the law and the legal views – is a good starting point. The party may or may not engage (although sometimes you may be surprised), but keeping dialogue open is key: it can lead to changes in behavior on the battlefield.

Patterns speak volumes

Getting the law right is the easier part. How do we establish the facts?

The ICRC/Geneva Academy Guidelines on investigating IHL violations recommend paying close attention to patterns. Many UN investigative bodies and others often refer to patterns, rather than single instances of violations. This is understandable: unless you are in a room with a commander, or the party to the conflict has released enough information on the attack, it is challenging to gather enough data from a single instance for a potential IHL violation, let alone a war crime.

Even in seemingly straightforward cases of violations, such as the use of chemical weapons or perfidy, single instances may not be enough to convince others. Prioritizing patterns improves the overall credibility of analysis and solves two problems related to investigations and resources.

Repeating acts under similar yet slightly different circumstances helps establish relevant facts and filter out noise. A few instances of using unguided weapons in an area with civilian and military targets, not far from a frontline or a contact line, are not necessarily a violation. We simply do not have enough information to make a decision. However, when this happens over months and years, especially when streets are busy, with limited military advantage gained in each attack but random civilian casualties mounting, and attacks often retaliatory in nature, you may start seeing a pattern of trying to spread terror among the civilian population – which may be a war crime.

The repeated nature of the attacks shows when and how (i.e., means and methods), and most likely who (or what type of actor) carried out the attacks, improving the understanding of what was in the mind of the attacker without necessarily establishing the intent. It paints a clearer picture of what is happening. Patterns sometimes hint at rules of engagement, whether explicit or implicit, and other operational modalities that are usually kept confidential. This may not be sufficient for a criminal investigation, but it may be enough for fact-finding purposes.

Analyzing patterns is also resource efficient. Limited resources and strict reporting timelines often constrain fact-finding missions, commissions of inquiry, and others. Hence, the standards of proof they choose are lower than for a criminal investigation, using instead ‘balance of probabilities’ or ‘reasonable grounds to believe’. Focusing on patterns allows one to achieve the necessary standard of proof efficiently (p. 52), without using excessive resources.

The rise of OSINT (open-source intelligence) has also made investigations more resource-efficient. It has broadened the fact-finder’s toolkit, from frequently updated satellite imagery to near real-time photos of attack sites, often gathered and verified through crowdsourcing and geolocation techniques. At the same time, it has created new challenges: deepfakes, staged audiovisual materials, data preservation issues, or simply a lack of expertise in digital forensics. Existing protocols and guidelines help mitigate some of these problems, but non-military actors may be constrained in their capacity to conduct thorough investigations. While long-term OSINT investigations have occasionally supported international judicial proceedings, fact-finders may find greater value in using OSINT to corroborate patterns of violations with additional evidence, rather than relying on it as the sole basis for establishing a single CoH violation.

Patterns are not a perfect solution and are prone to various issues, from bias and false positives to over-generalization. Patterns, importantly, do not always indicate policy. Note how Goldstone himself virtually retracted his views on the link between pattern and policy in Goldstone’s Commission report. However, the pattern was largely proven to the Commission’s standard of proof, even if the policy was not, demonstrating the former’s importance in analyzing CoH violations.

Focusing on patterns helps establish the relevant facts for a violation. It is particularly useful when resources are constrained, which is usually the case for non-military actors. Beyond that, observing patterns of violations for long enough can help change opinions – including those of (former) officials.

Attention to applicable law, divergent views, and patterns is no perfect recipe, but it reflects what works in international fact-finding. Despite all this, you may still be unable to prove a CoH violation. As frustrating as it can be, sometimes simply documenting is enough. This can start a conversation on whether IHL is adequately adapted to contemporary realities or nudge a party to the conflict to reflect on its operations. It can also be important for those affected. As a person from a country in conflict told me, ‘No one will be able to solve [this crisis], but at least it will be documented’.

*Ilya Ivanov is a PhD Candidate at the University of Geneva, where he researches the legal value of non-binding norms in international humanitarian law and international human rights law. Recently, he served as a Legal Officer at the Office of the United Nations High Commissioner for Human Rights (OHCHR) and has held positions with the International Committee of the Red Cross, the World Food Programme, and the Human Rights House Foundation.

The post Accountability Without Access: How Non-Military Actors Can Assess Conduct of Hostilities Violations (IHL Symposium) appeared first on ABILA.

A column of smoke after an Israeli bombing of the Gaza Strip; Mohammed Ibrahim

This piece is part of the American Branch’s third blogging symposium, examining the ILW 2025 theme of ‘Crisis as Catalyst in International Law’ from an International Humanitarian Law perspective. The International Humanitarian Law Committee sponsors this symposium; however, the views expressed in published works are solely those of the authors.

A Binary in Crisis: Broadening the Functional Approach to the Law of Occupation

by Oscar Pearce*

International Humanitarian Law (“IHL”) traditionally tells the following story of military occupation: one state successfully invades another, taking control of its territory. Legally, the invader is not the sovereign power in the territory. Factually, however, it has replaced the indigenous government’s authority with its own.

Occupations are thus states of exception, severing the bond between sovereignty and control of territory. In such abnormal circumstances, IHL applies constraints, duties, and authorizations to occupying forces, primarily sourced from the Hague Regulations and the Fourth Geneva Convention (Part III, Sections I and III). Collectively, this is the law of occupation. For a critical analysis of regulating such states of exception, see Ben-Naftali and Diamond.

In this post, I discuss how a recent crisis served as a catalyst for expanding the temporal scope of the law of occupation, before proposing to extend this expansion further, aiming to give full effect to the law’s purpose.

The Temporal Boundaries of Occupation

When does the law of occupation begin to apply, and when does it stop? For over a century, the answer was simple. Article 42 of the Hague Regulations states:

Territory is considered occupied when it is actually placed under the authority of the hostile army.

The occupation applies only to the territory where such authority is established, and in a position to assert itself.

Under this test, an occupier was classified as such when it had secured effective control of a territory. Symmetrically, when an occupier no longer exercised effective control, it was no longer an occupier.

This effective control threshold is high. See, for example, the ICTY’s guidelines from Naletilić and Martinović:

– The occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly;
– The enemy’s forces have surrendered, been defeated, or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation;
– The occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt;
– A temporary administration has been established over the territory;
– The occupying power has issued and enforced directions to the civilian population.

A Troubling Gap

Despite Israel’s 2005 “disengagement” from Gaza, it retained significant authority over the territory. Israel controlled Gaza’s air and sea, a no-go zone along the border, the local monetary market, customs duties, veto rights over large-scale construction, the population registry, and border crossings (see the 2015 Human Rights Council inquiry).

Without the law of occupation, Israel could continue acting as a quasi-occupying force, unrestrained by occupier obligations (nor empowered by authorizations): an unacceptable vacuum.

Absent “boots on the ground” and outright Israeli administration of the territory, however, it was difficult to conclude that Israel retained effective control. Moreover, even if Gaza was classified as subject to a traditional occupation, that was also undesirable. That would imply, for example, that Israel was duty-bound to enforce law and order.

Stuck between a rock and a hard place, the IHL community converged on a delicate path between the two: the functional approach.

The Functional Approach

The ICJ settled on the following solution:

Where an occupying Power, having previously established its authority in the occupied territory, later withdraws its physical presence in part or in whole, it may still bear obligations under the law of occupation to the extent that it remains capable of exercising, and continues to exercise, elements of its authority in place of the local government.

Though Israel no longer satisfied the effective control threshold, it had retained key elements of authority. Thus, its obligations remained “commensurate” with that ongoing control.

After the ICJ’s opinion – which followed support from academics, NGOs, and the ICRC – leading proponent Aeyal Gross declared the functional approach lex lata.

The functional approach is challenging to apply. Which elements of authority should be used to identify an applicable post-withdrawal setting? How is a “commensurate” obligation calibrated? These questions have not yet been conclusively answered.

However, this post concerns a preliminary issue: why confine this approach to scenarios where an occupying power has “previously established its authority in the occupied territory”?

Testing the Lex Lata

Consider the following hypothetical scenario:

Gaza Interrupted. Let ‘Gaza at T₀’ refer to Gaza in 2019, under the state of partial occupation that prevailed at that time. Imagine that a party wins control of the Israeli Knesset in 2019 and ends all remaining Israeli influence over Gaza, such that the law of occupation clearly no longer applies. This is ‘Gaza at T₁’. Then, in a 2021 election, momentum reverts, and the features of post-2005 Israeli control are reinstated. This, finally, is ‘Gaza at T₂’. Since the occupation ended just 2 years earlier, Israel rapidly and remotely restores these levers of power.

Disregard the actual likelihood of these events, the relevant conclusion is conceptual. Gaza at T₀ and T₂ are substantively identical – Israel exercises significant authority over the territory but lacks effective control. The applicable legal regime differs entirely. The lex lata functional approach only covers partial occupations that arise after a full occupation is scaled back. Gaza at T₂ involves a partial occupation established as such at the outset, which is clearly outside this scope.

Should different legal regimes govern Gaza at T₀ and T₂? I contend that there is no solid basis for distinguishing the two.

Perhaps, however, the lex lata functional approach would cover Gaza at T₂ because it is not actually the start of a new occupation, but rather the messy end of an old one. Consider, though, the following:

The Selective Occupier. State B attacks State A. State A responds with a campaign of remote attacks against Region X, which was used as the base for State B’s attacks. Defeated, State B’s military withdraws from Region X. State A is reluctant to launch a full invasion of Region X. It wishes to assume the minimum level of control necessary to prevent attacks. In direct communications to civilians, State A assures Region X that it can continue to function largely as usual. However, State A imposes a curfew – which will be enforced by the drones that patrol Region X – and requisitions a hospital in Region X that sits on the border of State A for domestic purposes.

State A probably lacks effective control of Region X. Nevertheless, it has severed the bind between control and sovereignty, leaving a vacuum.

Those familiar with the law of occupation will note at least one possible violation above: Article 57 of the Fourth Geneva Convention prohibits (with narrow exceptions) the requisitioning of hospitals in occupied territories. Why apply this prohibition to scenarios that cross the effective control threshold, but not to those that do not? Even worse, why apply this to post-withdrawal partial occupations (eg, Gaza) but not to all partial occupations (eg, Region X)?

Below, I propose a test to fill these gaps.

Sketching a Generalized Functional Approach

Consider the following (inspired by the ICJ’s language):

Territory is occupied when it is actually placed under the authority of the hostile army. A State therefore occupies territory that is not its own when, and to the geographic extent that, it exercises effective control over it. Where a State lacks effective control but is capable of exercising, and in fact exercises, key elements of its authority in place of the local government, it shall bear obligations under the law of occupation commensurate with the degree of its control over the territory.

This rule upholds the principle that effective control triggers the full law of occupation. Where that threshold is not met, a secondary test is run: does the purported occupier exercise key elements of authority over the territory? When answered in the affirmative, the law of occupation will be activated.

I acknowledge that I have retained imprecise ICJ/ICRC phraseology: “key elements of authority”, “commensurate”. Flexibility is inherent in any functional, fact-based approach to law, but some general observations can be made. The traditional indicia of effective control (e.g., the capacity to enforce a curfew) are likely candidates to be “key elements of authority”. Regarding the balancing exercise implicit in “commensurate”, I would note that such balancing is already built in to positive occupier obligations (see Siegrist).

To return to first principles, however, recall that the law of occupation’s purpose is to govern states of exception. This generalized functional approach should thus be interpreted as catching scenarios wherein a purported occupier lacks effective control but nevertheless exercises exceptional public power in a foreign territory.

Conclusion

It took a humanitarian crisis to catalyze the development of the functional approach. We should not wait for the next crisis to refine it. I hope this proposal can contribute to aligning the law of occupation with its animating purpose: regulating the exceptional exercise of extraterritorial public power, and protecting civilians in the process.

*Oscar Pearce is an incoming graduate lawyer at Herbert Smith Freehills Kramer, Sydney. Oscar studied at the Australian National University, where he specialized in public international law. This work is derived from an Honours thesis written under the supervision of Dr. Wanshu Cong.

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Signing of the Geneva Convention; International Committee of the Red Cross

This piece is part of the American Branch’s third blogging symposium, examining the ILW 2025 theme of ‘Crisis as Catalyst in International Law’ from an International Humanitarian Law perspective. The International Humanitarian Law Committee sponsors this symposium; however, the views expressed in published works are solely those of the authors.

The Trump Administration’s War on the Laws of War

by Gabor Rona*

The present-day Geneva Conventions were negotiated in the aftermath of WWII, a time of concentrated attention to the horrors of war. They are among the most widely ratified treaties in the world. The Geneva Conventions do not outlaw war. That was the job of the contemporaneous U.N. Charter. Rather, in recognition that wars happen, the Geneva Conventions and their Additional Protocols seek to reduce suffering in war by limiting the means and methods of warfare – for example, by prohibiting the targeting of civilians – and by establishing rules for the treatment of prisoners of war and civilians falling into the power of the enemy.

The Trump administration has taken several bold and misguided, indeed irrational, steps that, when combined, will leave more holes than substance to U.S. application of International Humanitarian Law (IHL, or the law of armed conflict). I will briefly and superficially touch on three areas of grave concern. I do not address what many consider the Trump administration’s most notorious violations against the international legal order, namely, the threats to use force against Canada, Panama, and Greenland (Denmark), and the use of force against Iran and Yemen, as those are jus ad bellum/U.N. Charter issues, not jus in bello/IHL issues.

PENTAGON (AND STATE DEPARTMENT)

Secretary of Defense Hegseth’s book The War on Warriors has been likened by one reviewer to Mein Kampf in its sense of persecution and doom, promoting a “contrived nightmarish vision of society, where true ‘patriots’ are persecuted by a twisted and evil political establishment…”. Hegseth seeks to save the military from ‘wokeism,’ by which he means things like the Geneva Conventions and accountability for war crimes. He actively lobbied for pardons for soldiers convicted of murdering persons hors de combat in Afghanistan. As Secretary of Defense, he fired the Judge Advocates General, the top military lawyers in each of the armed services, a decision at odds with customary IHL obligations to ensure legal advisors are available, when necessary, to advise commanders on the application of IHL, and on the appropriate instruction to be given to the armed forces. The obligation is also supported by the Geneva Conventions’ more general requirement that States Party shall “respect and ensure respect” for the Conventions.

Consistent with the desire to free the armed services from the constraints of law, the Pentagon has announced that it will terminate the Civilian Harm Mitigation and Response office, which deals with policy matters related to minimizing the risk to noncombatants, and the Civilian Protection Center of Excellence, which handles training and procedures.

Another disturbing piece of evidence that the Trump administration has abandoned its support for long-standing principles, rules, and practices of IHL is its withdrawal from this year’s Aspen Security Forum, a firmly establishment-oriented event that has featured high-level international and U.S. military and national security apparatus participation for the past 15 years. The mission of the Aspen Strategy Group (ASG), which hosts the Forum, is “to address key national security challenges and promote peace by convening decision-makers in resolutely non-partisan public and private forums.” In an abrupt turn-around, the Pentagon claimed that the Forum “promotes the evil of globalism, disdain for our great country and hatred for the president of the United States,” and that “(t)he department will remain strong in its focus to increase the lethality of our war fighters, revitalize the warrior ethos and project peace through strength on the world stage. It is clear that the A.S.F. is not in alignment with these goals.” The disdain for international legal obligations of armed conflict is apparent in these hostile remarks that are entirely divorced from the reality of the Forum’s purpose and content.

At the State Department, meanwhile, recent mass firings include the closure of the Office of Global Criminal Justice, which “helps formulate U.S. policy on the prevention of, responses to, and accountability for mass atrocities,” including war crimes, crimes against humanity, and genocide.

These IHL rules, the practices they mandate, and the mechanisms designed to implement them serve several functions. Obviously, they support the most important IHL principle: distinction between combatants and civilians. But rather than create a harmful constraint on armed forces, they are essential to the accomplishment of the military mission, the safety and psychological well-being of armed forces personnel, and indeed, the broader foreign policy interests of States. All these values are at risk when guardrails against the commission of war crimes are absent.

Responsible military leaders recognize the strategic value of IHL compliance, including the minimization of civilian harm. Hegseth, meanwhile, has it exactly backwards. What he considers to be woke constraints on the military are, in fact, essential components of protection for the military mission, the soldiers, and the political goals of the governments that put soldiers in harm’s way.

ISRAEL/PALESTINE

Whether or not one agrees with allegations that Israel is guilty of genocide in Gaza, there is no room to doubt that Israeli armed forces, and government officials, are responsible for widespread and systematic violations of IHL in Gaza and the West Bank. Notwithstanding the horrendous violations committed by Hamas in the October 7 attacks, notwithstanding Hamas’ cynical and illegal use of the civilian population to cover its military activities, and regardless of belief in Israel’s right to use force in self-defense, the evidence of Israeli violations is so thorough, from the targeting of civilians and civilian infrastructure, to the mistreatment of detainees, to the withholding of essential humanitarian aid, and to practices and policies that amount to de facto annexation of occupied territory, that I will not bother to recount the details here.

The point I want to make, once more, is about the obligation under the Geneva Conventions to “respect and ensure respect” for the Conventions. In this regard, the United States maintains several legal strictures concerning the prohibition of provision of military aid to foreign armed forces that violate IHL. The most well-known of these are the so-called Leahy Laws (named after my former Vermont Senator) – two statutory provisions prohibiting the U.S. Government from using funds for assistance to any unit of foreign security forces where there is credible information implicating that unit in the commission of gross violations of human rights. One statutory provision applies to the State Department, and the other applies to the Department of Defense. The obligation to enforce the Leahy Laws lies primarily with the Secretaries of State and Defense. In addition, as these are statutory provisions, Congress has considerable leverage in oversight and funding.

Israeli officials (incredulously given the history of the Holocaust) speak of “concentrating” Gaza’s population into “camps.”  The Trump administration, meanwhile, supports the ethnic cleansing of Gazaand maintains its fictional belief that Israel “strictly adhere(s) to the laws of war.” It is thus essential to the sanctity of the Geneva Conventions’ “ensure respect” provisions, of IHL in general, and to the credibility of the United States in matters of foreign affairs, that Congress exercises its powers to compel enforcement of the Leahy Laws with respect to the provision of military support to Israel.

IMPUNITY

I  have already mentioned the decision of the Trump administration to pardon members of the U.S. armed forces convicted of murder and other offenses that are, in fact, war crimes. In addition to such ad hoc pardons, U.S. policy appears to promote impunity on an industrial scale by actively thwarting the efforts of the single, permanent, international institution designed to end impunity for international crimes: the International Criminal Court (ICC).

By way of full disclosure, I note that I am a plaintiff in litigation contesting the Trump administration’s imposition of sanctions against the ICC. My complaint is that by prohibiting support for the ICC prosecutor, these sanctions violate my constitutional rights, for example, to file amicus briefs in support of the prosecutor’s position on legal matters, or to otherwise contribute to the work of the Court. Recently, a federal court granted a permanent injunction against the government’s enforcement of these sanctions against me and my co-plaintiff. But more importantly, the sanctions have been imposed for political reasons, rather than due to any credible argument that the ICC violates international law by purporting to exercise jurisdiction against U.S. persons, or allies, namely, Israel. It is true that neither Israel nor the United States are party to the Rome Statute, the international treaty establishing the ICC. However, the Statute is fully consistent with international law by providing the ICC with jurisdiction over crimes, including IHL violations, committed on the territory of a State Party, regardless of whether the perpetrator is a national of a State Party. U.S. complaints that the ICC violates the sovereign rights of non-State Parties when it prosecutes their nationals carry no more weight than the false claim that a state cannot prosecute a foreigner for an offense committed on its territory.

As improper as the ICC sanctions are, the Trump administration has now taken things one step further by issuing sanctions against the U.N. Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, Francesca Albanese, whose task is not to prosecute or otherwise enforce any law, but merely to investigate and make recommendations. In clear violation of its obligations to respect freedom of expression under article 19 of the International Covenant on Civil and Political Rights, to which the United States is a party, U.S. sanctions do little to protect the legitimate interests of the United States or its nationals but visit great harm on the fight against impunity for IHL violations and the reputation of the United States as a promoter and protectors of human rights and IHL. Attempting to thwart the work of U.N. officials, and of the one permanent international institution designed to close the impunity gap that occurs when States are unwilling or unable to meet their Geneva Convention obligations, again, directly defies the obligation of all parties to the Geneva Conventions to “respect and ensure respect” for IHL.

The Geneva Conventions also obligate all States Party to search for and try or extradite for trial all persons suspected of having committed “grave breaches” of the Conventions in international armed conflict. To this end, U.S. war crimes law was recently amended to comply with the Conventions’ obligation to search for and try or extradite suspected war criminals, regardless of where they committed their crimes. This obligation is at the heart of recent prosecutions by Germany, France, Sweden, the Netherlands, Belgium, Switzerland, and Finland for war crimes in Syria, Rwanda, Iraq, Iran, and Liberia. Most recently, Belgian federal police arrested and interrogated two Israeli soldiers accused of war crimes in Gaza. This should be a warning to war criminals that even if they enjoy impunity in their home countries, they remain in jeopardy should they travel elsewhere.

CONCLUSION

Viewed separately, these policies and practices of the Trump administration represent misguided decision-making, contrary to the interests of the United States. Taken together, they suggest a concerted effort to unravel some of the most significant and hard-won threads of the international legal order that are designed to minimize suffering in armed conflict and to promote international peace and security. Despite the many criticisms leveled at IHL, there can be no doubt that in the more than one and a half centuries since the promulgation of the First Geneva Convention, and despite the horrendous violations committed in all the wars since that time, international law, and in particular, IHL, has matured into a comprehensive framework designed to minimize human suffering and harm to the planet. The tools are in our hands, and it is our responsibility to respect and apply them.

*Gabor Rona is a Professor of Practice at Cardozo Law, Yeshiva University, and a Lecturer in Law at Columbia Law, with expertise in international human rights and international humanitarian law. Before his time at Cardozo, he was the International Legal Director of Human Rights First and a Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva.

The post The Trump Administration’s War on the Laws of War (IHL Symposium) appeared first on ABILA.

For the American Branch’s third blogging symposium, various authors will address International Law Weekend’s 2025 theme of ‘Crisis as Catalyst in International Law’ from an International Humanitarian Law Perspective. Earlier this year, the American Branch put out a call for abstracts addressing this theme. The International Humanitarian Law Committee Chair Professor Gabor Rona, 2024 Student Ambassador Anne Harper, and ABILA COO Freya Doughty-Wagner selected the best abstracts and worked with the authors as editors. These complete pieces will be published daily, starting Tuesday, August 26th, and concluding on Friday, August 29th.

All published works are solely those of the authors and do not reflect the views of the American Branch.

Symposium Overview:

TUESDAY: The Trump Administration’s War on the Laws of War by Gabor Rona

Gabor Rona is a Professor of Practice at Cardozo Law, Yeshiva University, and a Lecturer in Law at Columbia Law, with expertise in international human rights and international humanitarian law. Before his time at Cardozo, he was the International Legal Director of Human Rights First and a Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva.

Read here.

WEDNESDAY: A Binary in Crisis: Broadening the Functional Approach to the Law of Occupation by Oscar Pearce

Oscar Pearce is an incoming graduate lawyer at Herbert Smith Freehills Kramer, Sydney. He studied at the Australian National University, where he specialized in Public International Law.

Read here.

THURSDAY: Accountability without Access: How Non-Military Actors Can Assess Conduct of Hostilities Violations by Ilya Ivanov

Ilya Ivanov is a PhD Candidate at the University of Geneva, where he researches the legal value of non-binding norms in international humanitarian law and international human rights law. Recently, he served as a Legal Officer at the Office of the United Nations High Commissioner for Human Rights (OHCHR) and has held positions with the International Committee of the Red Cross, the World Food Programme, and the Human Rights House Foundation.

Read here.

FRIDAY: Recalibrating the Proportionality Calculus to Include Mental Collateral Damage by Natasha Arnpriester

Natasha Arnpriester is Senior Legal Counsel at the Open Society Justice Initiative in New York, where she leads transnational litigation on human rights accountability, with a particular focus on communities affected by armed conflict, authoritarian regimes, and structural exclusion. Her litigation strategies center on developing niche and innovative arguments to address complex problems in both domestic and international legal forums, with impacted communities at the core.

Read here.

The post Introducing: Crisis as Catalyst – An International Humanitarian Law Perspective appeared first on ABILA.

Source: Dulana Kodithuwakku

This piece is part of the American Branch’s second blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Investment Law perspective. This symposium is sponsored by the International Investment Law Committee, but published works are solely those of the authors.

Child Labor and International Law – A Clash of Conventions:  Business Obligations Regarding Child Labor Issues

Part 2: Obligations of Business Enterprises Regarding Child Labor Issues

by Alan Franklin, JD LLM*

Both the ILO Age Convention and the CRC are legally binding on the state parties; however, they do not impose direct legal obligations on non-state parties such as business enterprises (BEs).

The obligations of BEs derive primarily from the United Nations Guiding Principles on Business and Human Rights (UNGPs), which do not impose legal obligations on businesses; rather, they impose responsibility on businesses to act following human rights principles.  Thus, it is incumbent on BEs to consider the principles enunciated in the ILO Conventions, the CRC, and similar documents to determine for themselves their obligations to children and child labor. Similarly, the OECD Guidelines for Multinational Enterprises guide BEs.  Since these are set out as guidelines, they are not intended to impose legal obligations. Their guidance on child labor issues is most relevant.

In addition to these “soft law” documents, BEs are now also subject to laws on supply chain due diligence, such as:

– The German Act on Corporate Due Diligence Obligations in Supply Chains, which came into effect in 2023,
– The French Corporate Duty of Diligence Law, which came into effect in 2017,
– The European Union Directive on corporate sustainability due diligence (2024/1760) entered into force in 2024 but is under revision pursuant to the Omnibus Package,
– The Canadian Fighting Against Forced Labour and Child Labour in Supply Chains Act, which came into force in 2021,
– The UK Modern Slavery Act, which came into force in 2015.

The abovementioned laws address issues related to child labor but do not clarify whether children’s rights to make their own decisions under the CRC still apply or whether the ILO Age Convention triumphs.

Governments are legally bound to adhere to these conventions. However, to rationalize the contradictions above, BEs must understand child labor issues and consider them from a “best interests of the child” perspective. While the rules promulgated by international conventions are somewhat contradictory and, in many ways, deny the child’s best interests from being applied, BEs have no such restrictions on sources and methods of engagement with the issue of child labor. They are, therefore, obligated to consider these issues in a broader context.

BEs may thus want to focus on comments found in the open letter to the CRC Committee, which recommended the guidance regarding the Rights of Adolescents not to adopt any fixed age limits for child labor.  This letter suggested instead that reference be made only to ILO Convention 182 (The Worst Forms of Child Labour).  The letter states in part:

 “The signatories’ support for Convention 182 in this specific instance is subject to the proviso that, prior to any application, the voices of children who will be impacted are listened to and acted upon; their rights will be respected; and that their best interests (decided in conjunction with the children themselves) will be prioritised in all cases. The letter furthermore rejects the blanket application of ILO Convention No. 182 and instead suggests that its application should be guided by careful consideration of the social, cultural, and economic circumstances within which children live and labour.”

The letter references Beyond Trafficking and Slavery Supporters 2015, edited by Sam Okyere and Neil Howard.  This Volume contains articles by 18 of the foremost authors on children’s issues globally . The introduction to the Volume states: “This volume […] argues that the dominant abolitionist discourse and its associated policy directives often impede the best interests and rights of the children they purport to ‘protect’ or ‘rescue’. This largely happens because the protections […] often lack thorough understanding of the social, cultural, and economic circumstances surrounding young people’s work, mobility, and lives.”

The crucial element in Open Democracy’s letter is the statement quoted in the first blog that the ILO Age Convention is not concerned with the human rights of children.

BEs are urged to read this statement very carefully for the following reasons:

1. The CRC outlines the concept of the best interests of the child and states that children have a right to express their views (Article 12) and that their views must be taken into consideration; that concept is negated by CRC Article 32, which obligates states to institute and enforce minimum ages for work, regardless of the interests and views of the affected children. See discussion in part 1 hereof regarding reconciling this conflict.

2. As the Series introduction suggests, these conventions are the result of politics, disengaged from the objectives of the best interests of the children, because they lack an understanding of the social, cultural, and economic circumstances surrounding young people’s work.

Thus, when BEs engage in due diligence, they must look at why children under 18 work in the particular situation.  Is their income required for them (and their family) to survive? Is there meaningful education available to the child who does not work?  In many developing countries, little or no education is available for poor children, especially those in remote areas. Even if there is meaningful education for poor children in the region, should children be expected to attend if the result would be highly detrimental to the child’s or family’s economic survival?

As Justice Posner stated in Flomo v Firestone Natural Rubber Co  (7th Circuit of Appeals 2011), this is a balancing act. Is the child better off not working if, by not working, the child and family will suffer greater deprivation?  Can the child consider that when deciding to work or not, under the CRC? International laws are blunt instruments to be applied to unique, delicate situations.  It becomes the role of businesses to assess each situation on its merits, using international law as a guide, but never taking these laws as definitive of their obligations without carefully examining the effects in the individual situation.

The issue of child labor vs. child exploitation is complex and delicate. As discussed in the first blog piece, the ILO Age Convention refers to age without differentiating between exploitation and non-exploitation. Differentiating between exploitative and non-exploitative situations for children is discussed in Article 32 of CRC wherein it refers to “economic exploitation” and perhaps alluded to in the ILO Age Convention in Article 5(3) regarding family farms and small-scale holdings which state “but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers.”

Much of the guidance regarding child labor emphasizes the importance of education. If a child does not have the opportunity to attend school (for example, due to a lack of proximity to a decent free educational facility) and chooses to work, is that considered interference with the child’s education? The World Bank report of 2019, The Education Crisis: Being in School Is Not the Same as Learning, explains the significant difference between children being in a school and actively learning. The guidance rarely acknowledges this reality, but BEs need to understand this difference and investigate whether the child is merely ‘in school’ and learning little of value or is engaged in meaningful education. If the former is true, does work interfere with their education?

Moreover, this concept is supported by The Guardian’s report ‘Tired, hungry and shamed: pupil poverty stops learning,’ which concludes that children in poverty cannot learn effectively, even if the quality of education is high. This report focuses on children in poverty in the UK.

Adolescents as heads of households arise from circumstances such as the death of parents, separation from parents, or the adolescent being a parent with children, and are referred to in some of the guidance documents. These adolescents must support their families and, as a result, work instead of attending school. While governments have legal obligations to provide support, they rarely do. Therefore, BEs must be aware of this issue, as removing adolescents from work without giving sufficient alternative income would significantly harm them and their families.

The type of work being done by a child is an essential factor to consider. Article 3(1) of the ILO Age Convention refers to work likely to jeopardize young persons’ health, safety, or morals.  CRC Article 32 refers to economic exploitation and performing any work that is likely to be hazardous, interfere with the child’s education, or harm the child’s health or physical, mental, spiritual, moral, or social development.  If the work is non-exploitative, such as working in a family operation or in a situation where the child is choosing freely to work (CRC Article 12), then it could be said that this type of work does not run contrary to any of the prohibitions.  Thus, BEs should consider whether work by a child in a textile factory harms health, physical, mental, spiritual, moral, or social development, particularly regarding the local conditions in which the child lives.

Conclusions Regarding BEs and Child Labor Issues:  The Kigali Declaration and a Call to Action

The Kigali Declaration of 2023

A conference of children met in Kigali, Rwanda, in 2023 to discuss issues related to children, particularly concerning their right to work and the right of children to be heard and to make decisions in accordance with Article 12 of the CRC. At this conference, representatives of committees and associations of working children from 16 countries across the world came together for a Global Gathering of Working Children and Youth. The Kigali Declaration states:

“Protect us from labour exploitation, harsh conditions and risks, and allow children to do suitable dignified work.

We all want our right to be protected from exploitation to be respected. We do not want to do work that is too heavy, underpaid, harmful, in harsh or risky conditions or linked to trafficking and bonded labour, which is a crime. Boys face increased risks of heavy work, and girls face increased risks of doing unpaid household work for long hours, taking them away from proper and dignified work.

However, we do not want to stop all forms of child work. We want to do work that is suitable to our age and capacity to support our families, to learn skills, to earn money, to meet our basic needs and to respect our traditional cultures. This work needs to be safe, fairly paid, and allow for sufficient time to study, rest, and play.” (emphasis added)

The Kigali Declaration continues:

“Many of us feel proud to contribute to our families and want our work to be valued. Our work gives us the opportunity to lead our lives with dignity, provide for our families, and to continue our education as it is also our cultural practice, not just the effect of poverty and exploitation.

Existing laws on protection from child labour and exploitation must be adequately enforced and monitored everywhere. Plus, policies should support safe work, earn and learn education opportunities, and inclusive skill-based training. Work conditions should be improved, including for working children with disabilities.”

As we read this, we need to be aware of the following further elements of that Declaration:

1. This is coming from children and children’s representatives. Under the CRC, their voices are to be heard and respected. As they said in the Declaration: “We have the right to be heard and need to be seen, heard and engaged in all matters that affect our lives. We want to participate in decisions at all levels and be taken seriously by parents, caregivers, teachers, employers, police, practitioners, religious, traditional and community leaders and policy makers – including government authorities, and other national and international agencies, such as UNICEF, ILO  or regional bodies.”

2. As Section 4 of the Declaration states in part, “Listening is not enough; we want adults to act on what we say.” This is crucial—they do not want to be listened to, patted on the head, and then the government does as it wishes. That is contrary to the concept of the CRC Article 12.

Thus, the author suggests that BEs look at the contradictions within the international conventions on child labor and child rights, and try to reconcile those contradictions to assist children, based on their needs, wants, and their best interests.  Suppose the children have no educational possibilities in their particular region. In that case, they may want to help those children initially to obtain work that will fall within the demands under the Kigali Declaration, while simultaneously exerting pressure on the government of the state, inter-governmental organizations, NGOs and other stakeholders to provide the children with their rights to education, and better quality of life.  This will require BEs to embrace, investigate, and invest in solutions to help the children.

Further reading: It’s Time to Talk: Children’s Views on Children’s Work, Kindernothilfe, Germany Terre des Hommes. This discusses children’s views on their right to work, but within limits.

Read Part One here.

*Alan Franklin practiced law for many years before transitioning into academia and consulting. He taught International Business Risk Management for 12 years in the Executive LLM program at Athabasca University in Canada, and for five years, he taught International Business at the Royal University of Law and Economics in Cambodia. Currently, he is working with international legal experts to develop a global Charter addressing child labour issues in business. He has delivered seminars on child labour in cities including Toronto, Vancouver, New York, and Phnom Penh.

The post Child Labor and International Law – A Clash of Conventions: Business Obligations Regarding Child Labor Issues (IIL Symposium) (2/2) appeared first on ABILA.

Source: Aditi Gautam

This piece is part of the American Branch’s second blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Investment Law perspective. This symposium is sponsored by the International Investment Law Committee, but published works are solely those of the authors.

Child Labor and International Law – A Clash of Conventions:  Business Obligations Regarding Child Labor Issues

Part 1: International Conventions and Child Labor Issues

by Alan Franklin, JD LLM*

Introduction

Child labour is a major global issue for governments, businesses, international lawyers, non-governmental organizations, and civil society, all of whom are important stakeholders. The United Nations Sustainable Development Goals (SDGs), Target 8.7, seek to end all forms of child labour by 2025, an obvious impossibility.

This two-part blog series will examine child labor from several perspectives, examining the international conventions and instruments governing the issue. As we will see, the various conventions conflict with each other. Also, the concept of the best interests of the child, as articulated by the United Nations Convention on the Rights of the Child, should, in the author’s view, be seen as the supreme principle. Yet, many of the conventions and instruments seem to ignore the best interests of the child.

This paper will critically analyze the International Labour Organization Convention 138 1973 (Minimum Age) (hereafter referred to as ILO Age Convention) and then compare it with the Convention on the Rights of the Child (CRC), highlighting some of the key differences between them.  ILO Convention 182 (Worst Forms of Child Labour) will be discussed in the context of the Age Convention and CRC, and show its importance, perhaps legally overshadowing the ILO Age Convention.

This discussion is important to the above-noted stakeholders because most literature, guidance, guidelines, and commentaries on child labor focus almost exclusively on the ILO Age Convention, with little discussion of the CRC and the Worst Forms of Child Labour. To reconcile the contradictions between the Conventions and internal contradictions within the CRC,  we must examine the guidance issued by the Committee on the Rights of the Child and that of the United Nations Children’s Fund (UNICEF) on these issues.

Part 1 of this series will therefore present a comprehensive modern interpretation of the child labor issue, presented primarily from the perspective of the best interests of the child, which may not require the ending of all forms of child labor, since it will be shown that even children often agree that child labor can be beneficial to children and society in many situations.

Based on the discussion and analysis in Part 1, Part 2 will discuss the obligations of Business Enterprises regarding child labor issues.

C138 International Labor Organization Age Convention (1973)

Most stakeholders see this Convention as key to understanding international law rules regarding child labor. ILO (Age Convention) To date, 176 countries have ratified this Convention.

Article 3 (1) sets out the general principle: “The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons shall not be less than 18 years.”

Article 2 allows member states to lower those ages in certain situations and to define the type of work that can be done by those under 18, allowing for a minimum age of 15 generally, but aged 14 for “a Member whose economy and educational facilities are insufficiently developed.” This Convention is prescriptive, without concern for whether these ages are in the best interests of the children involved.

To give an example of the interpretation of the ILO Age Convention. The Canadian Province of Ontario (a highly developed jurisdiction), pursuant to its Occupational Health and Safety Act (OHSA), allows children aged 15 to work in most factories, and children aged 14 can work in restaurants.  Thus, state practice often shows that the rules set out in the Age Convention are ignored, even by developed states.

United Nations Convention on the Rights of the Child (‘CRC’) (1989)

This Convention has been ratified by every UN member state except the US. Its focus is children’s rights, in contrast with the ILO Age Convention. It post-dates the ILO Age Convention by 16 years, a significant period of time that allowed the states of the UN to consider many issues regarding children from a very different perspective from the ILO Age Convention.

The CRC, while defining “children” as being under 18, gives children agency by allowing them to make their own decisions regarding work and education, depending upon their maturity and development level, under Articles 12 and 13.

CRC Article 12 (1) provides:

“States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

This concept is buttressed by the Charter of Fundamental Rights of the European Union, Article 24: “Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.”

However, within the CRC, we have a seeming internal contradiction regarding the rights of children to express their views, in that Article 32 states:

ONE: States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.

TWO: States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:

(a) Provide for a minimum age or minimum ages for admission to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment;

(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.

Article 32 incorporates the concepts in the ILO Age Convention regarding the setting of ages.  Yet, it refers to economic exploitation as a separate concept – is a child working on a family farm or family enterprise being exploited?  Likely not, especially since ILO Age allows states to exclude “family and small-scale holdings producing for local consumption and not regularly employing hired workers.” (Article 5 (3)).

To reconcile this internal contradiction, we must examine the guidance issued by the Committee on the Rights of the Child and the United Nations Children’s Fund (UNICEF) on these issues.

The CRC Committee has published General Comments on interpreting aspects of the CRC. General Comment No. 12 (2009) (the rights of the child to be heard) confirms the child’s rights to be heard and for their views to be respected; the child’s maturity level determines the extent of that respect. A key element thereof is contained in paragraph 30, which states:

“Maturity is difficult to define; in the context of article 12, it is the capacity of a child to express her or his views on issues in a reasonable and independent manner. The impact of the matter on the child must also be taken into consideration. The greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of that child.” (emphasis added)

As the CRC clearly establishes, issues such as work and education significantly impact the outcome of the child’s life, and thus, their views on these matters are very relevant.

 This is confirmed by Paragraph 116:

“Children working at younger ages than permitted by laws and International Labour Organization Conventions Nos. 138 (1973) and 182 (1999) have to be heard in child-sensitive settings in order to understand their views of the situation and their best interests. They should be included in the search for a solution, which respects the economic and socio-structural constraints as well as the cultural context under which these children work. Children should also be heard when policies are developed to eliminate the root causes of child labour, in particular regarding education.”

Here, we see clearly that underage children working are not to be dismissed, but instead, solutions must be sought with their views in mind.

Child Exploitation vs Child Labor

Paragraph 117 relates to child exploitation: “Working children have a right to be protected by law against exploitation and should be heard when worksites and conditions of work are examined by inspectors investigating the implementation of labour laws.” Again, we see the necessity of listening to children’s views on these matters, in contrast to the ILO Age, which disregards the views of children.

Paragraphs 105-114 articulate children’s rights regarding education and schooling. If those rights are not adhered to by the state, there is little that states, international organizations, or other stakeholders can do to remedy these international law breaches. Yet, most guidance ignores this reality, suggesting that children should attend school rather than work.  One of the key theses of this blog is that children should be entitled to work instead of being forced to remain idle with neither education nor work available to them, or being forced into an education system that is not compliant with their rights.  In many developing countries, there may be either no schooling available to poor children or the education is so poor that it is not helpful to children.

CRC General Comment 20 (2016) details the protection of adolescents (aged 10 to 18) from risks which it lists such as substance use and addiction, violence and abuse, sexual or economic exploitation, trafficking, migration, radicalization or recruitment into gangs or militias., but the CRC suggests that adolescents are rarely protected from said risks; families cannot protect, governments refuse to protect and so the solution is often for children to make their own decisions and act upon them, to support themselves, their families, and to grow. Note the comment on page 7 under ‘Best Interests of the Child.’ Paragraph 22 states in part:

“In the light of its general comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, the Committee stresses that, when determining best interests, the child’s views should be taken into account, consistent with their evolving capacities and taking into consideration the child’s characteristics. States parties need to ensure that appropriate weight is afforded to the views of adolescents as they acquire understanding and maturity.”

This suggests that states (and thereby international institutions) must consider these issues in setting child labor and education rules rather than the current “one size fits all” system.

Comment 20 refers throughout to preventing the exploitation of adolescents. However, it does not suggest that work not considered exploitative should be disallowed. Paragraph 45 supports this, suggesting that adolescents should be permitted to join trade unions for workers.

Paragraphs 73 and 74 put the burden on the government to ensure proper programs for transitioning from school to work, a crucial element. When governments do not comply with these obligations, children (as well as their families) are left with few options for their development and economic support. One of these options is for children to start working, hoping to get some of that training through their work. Otherwise, we leave children in a limbo situation where they cannot support themselves or their families.

The Section on Child Labour (Paragraphs 84-86) outlines transitioning from education to work, setting out essential intermediate to long-term goals.  Adolescents must often work to support themselves or their families in the short term. They cannot await the implementation of these longer-term goals. Paragraph 84 refers to children being protected by the ILO Age Convention. Is this protection real or illusory?   Does that Convention take into consideration all of the issues outlined in the CRC regarding the rights of children to be heard, particularly when the protections of that age convention are firstly not being provided to children, and secondly are not subtle enough to provide for the best interests of the child, depending upon circumstances?

UNICEF has published an Implementation Handbook for the Convention on the Rights of the Child, now in its third edition (2007). On page 77, this document states that “[u]sing the concept of ‘evolving capacities’ has avoided the need for the Convention to set arbitrary age limits or definitions of maturity tied to particular issues.” This is one of the Convention’s key concepts – acknowledging that children’s development towards independent adulthood must be respected and promoted throughout childhood.

It is linked to the requirement of CRC Article 12 that children’s views should be given “due weight in accordance with the age and maturity of the child.” The treaty further refers to the rights of the parents to oversee education and work; they are the decision makers, in conjunction with the child, whose views must be respected as the child matures.

In addition to protective legislation and procedures to prevent exploitation of children in employment (Implementation Handbook, pg. 479), under CRC Article 12, respect is required for the views of the child; in any judicial or administrative proceedings relating to employment of children, the child has a right to be heard. Children must also have access to complaints procedures relating to employment. However, “one of the challenges of ending exploitation of child labour is to ensure that children’s often sincere view that they should earn money and help to support the family is also heard and responded to.” (Implementation Handbook, pg. 168) (emphasis added)

Do the Conventions Adhere to the Principle of the Best Interests of the Child?

A compelling argument can be made that the Preamble to the ILO Age Convention 138 was created to gradually abolish child labor globally, but without concern for children’s rights.

The comments published by Open Democracy in an open letter to the CRC Committee dated January 27, 2016, recommended that the guidance regarding the Rights of Adolescents (which was then being prepared by the CRC Committee) not adopt any fixed age limits for child labor states as follows:

“Although the Minimum Age Convention was written before discourse on children’s rights became prominent, it is frequently assumed to be a child rights document.

This assumption is fallacious.

The universal minimum-age policy abridges for children certain human rights that are granted to everyone. Under international human rights law, rights extended to everyone – such as the right to work – may be abridged for children for their own protection. However, the validity of that exception depends on showing that it is necessary (i.e., not achievable by means that do not abridge their rights) and effective (protects children in practice). Neither of these conditions is met by the universal minimum-age policy: children can indeed be protected by measures against harmful work that do not prohibit them from all work; and no evidence that we could find suggests that a universal ban actually protects children, but we have found a number of cases where it clearly worked to their detriment.”

This raises the Vienna Convention on the Law of Treaties (1969) (VCLT) regarding conflicts between treaties on the same subject matter.  Article 30 of the VCLT states that in the event of a conflict between treaties regarding the same subject matter, the latter treaty shall govern to the extent of any disputes.

The International Law Commission (ILC) study group published its report, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, in 2006, which studied this issue in depth. In paragraph 24 of that ILC report, they suggest that “conflict exists if it is possible for a party to two treaties to comply with one rule only by thereby failing to comply with another rule.  This is the basic situation of incompatibility […] [a] treaty may sometimes frustrate the goals of another treaty without there being any strict incompatibility between their provisions.” Hence, the setting of age restrictions in the ILO Age Convention conflicts with the CRC concept of children having individual human rights and thus agency to make decisions for themselves, based upon their level of maturity.  In this conflict situation, the ILC Report at paragraph 320 states that the result is not invalidity of the earlier convention (ILO Age) but that the later convention (CRC) would have relative priority.

Part 2, Obligations of Business Enterprises Regarding Child Labor Issues, can be read here.

*Alan Franklin practiced law for many years before transitioning into academia and consulting. He taught International Business Risk Management for 12 years in the Executive LLM program at Athabasca University in Canada, and for five years, he taught International Business at the Royal University of Law and Economics in Cambodia. Currently, he is working with international legal experts to develop a global Charter addressing child labour issues in business. He has delivered seminars on child labour in cities including Toronto, Vancouver, New York, and Phnom Penh.

The post Child Labor and International Law – A Clash of Conventions: Business Obligations Regarding Child Labor Issues (IIL Symposium) (1/2) appeared first on ABILA.

In honor of ILW 2025’s theme of ‘Crisis as Catalyst,’ ABILA is hosting its next blogging symposium with the International Humanitarian Law Committee. Previous symposia have been sponsored by the International Environmental and Energy Law Committee (see here) and the International Investment Law Committee (see here). Editors for this Symposium are Professor Gabor Rona, Anne Harper, and Freya Doughty-Wagner.

Crisis as Catalyst in International Law:

“ILW 2025 will explore how crises can serve as transformative moments that challenge and reshape the framework of international law.  Whether political, environmental, economic, or humanitarian, crises compel local, regional, and global actors to confront the limitations of extant legal systems. By serving as catalysts for innovation, crises also provide opportunities to reevaluate and reconstruct international legal norms. This process highlights the dynamic nature of international law, which must balance its foundational principles with the need for flexibility in response to unprecedented events. ILW 2025 encourages participants to reimagine international law.”

Crisis as Catalyst in International Humanitarian Law lends itself to many blog themes. These may include, but are not limited to:

– Regulation of private military companies;

– The obligation to apply legal advice to targeting decisions, in light of the firing of TJAGs;

– Secretary Hegseth’s “War on Warriors” effect on IHL compliance;

– A review of status of Additional Protocols;

– International Criminal Court sanctions;

– Enforcement of Leahy Laws and the “ensure respect” obligation of the Geneva Conventions;

– The effect of US sanctions on engagement with armed groups;

– Artificial intelligence and accountability;

– Humanitarian action/obligations and principles;

– Occupation vs Annexation;

– Challenges to the implementation of principles of distinction and proportionality in modern warfare;

– Detention and trial by non-state armed groups;

– Accountability challenges relating to drones and other forms of remote targeting;

– Obligations in the development of new weapons technology;

– Enhancing accountability through the new Ljubljana/The Hague Convention on Mutual Legal Assistance.

To participate, kindly submit a 200-word abstract and a brief biography to Freya Doughty-Wagner at media@ila-americanbranch.org by June 27, 2025. Abstracts and biographies may be in Word or PDF format. Please include the phrase ‘blog symposium’ in the email’s subject line. Abstracts must address the ILW 2025 theme from an international humanitarian law perspective.

Five abstracts will be selected. Submissions may come from law students, academics, or practitioners. Undergraduates are not able to apply at this time. Blogs may not be cross-posted to other blogging platforms.

Successful applicants will be notified by July 10, 2025, and requested to prepare a 1,500-word first draft with hyperlinks as references and an attached open-access image by July 31, 2025. All blogs may undergo editing, subject to author approval, before publication. We anticipate posting the edited, complete blogs to our website and across our social media the week of August 25, 2025. The best blog will also be included in our biannual print newsletter.

The post Blogging Symposium: Crisis as Catalyst – An International Humanitarian Law Perspective appeared first on ABILA.

Source: World Economic Forum

This piece is part of the American Branch’s second blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Investment Law perspective. This symposium is sponsored by the International Investment Law Committee, but published works are solely those of the authors.

Commodified Climate Solutions: The Ethical Dilemma of Adaptation and Resilience Investments

by Champion Olatunji*

Introduction

The world is experiencing increasing climate-related disasters, such as droughts, famines, and rising sea levels. To reverse this problem, the Intergovernmental Panel on Climate Change (IPCC) called for new pathways to reduce vulnerabilities to climate impacts and development through adaptation and resilience, which has become a critical subject in global climate action discussions.   

However, profit increasingly shapes efforts to adapt and build resilience rather than fairness. Companies and investors are turning adaptation and resilience into business opportunities, often at the expense of vulnerable communities and ethical outcomes. This blog investigates how these financial priorities conflict with the need for equitable climate solutions and argues for a shift to frameworks that put justice first.

The IPCC states that we should consider adaptation as a response strategy to anticipate and cope with impacts that cannot be avoided under different climate change scenarios. Similarly, resilience refers to the capacity to prepare for, respond to, and recover from the impacts of hazardous climatic events while incurring minimal damage to societal well-being, the economy, and the environment, including at the local, subnational, national, regional, and international levels. Together, these strategies form a necessary framework for safeguarding vulnerable communities against the worsening impacts of climate change. Implementing adaptation and resilience measures, however, requires substantial financial investment. This need appears in Article 2.1 (c) of the Paris Agreement, which calls for aligning financial flows with low-carbon and climate-resilient development.

In recent years, adaptation and resilience (A&R) investments have emerged as a frontier for institutional investors, mostly from wealthier nations, and blended finance platforms. Across sectors like insurance, agriculture, energy, and healthcare, these investments are increasingly seen not just as environmental necessities but as lucrative opportunities.

However, this commodification of climate solutions raises profound ethical questions: Are these profit-driven investments reinforcing global inequalities rather than addressing them? Are the most vulnerable communities being left behind in the race to monetize climate solutions? Can we rethink the role of international investment law to ensure that (A&R) investments uphold the principles of climate justice rather than perpetuate global inequalities?

The Commodification of Adaptation and Resilience as Climate Solutions

Unlike other investment models well understood by financial institutions, adaptation and resilience (A&R) measures face challenges that limit their uptake. The evidence from the 2023 publication from Race to Resilience revealed some key reasons for the low investment in adaptation.  These include perceptions of low profitability, limited information availability, and the long-term horizon of projects (often spanning 10-20 years).

Despite these barriers, the commodification of A&R solutions is on the rise. Commodification refers to how climate solutions, designed to address critical risks, are commercialized and marketed primarily for profit rather than public interest. These solutions include technologies and services to reduce greenhouse gas emissions, increase energy efficiency, or promote sustainable practices.

Some examples of commodified A&R solutions include:

– Climate-resilient real estate, which focuses on developments designed to withstand climate risks like flooding and hurricanes, commands premium market values;

– Flood insurance products that leverage advanced climate risk models to determine coverage and premiums;

– Disaster recovery technologies such as satellite imagery, geospatial mapping, and risk modeling tools that are commercialized to support governments and businesses in disaster preparedness; and

– Smart grids and energy upgrades that provide infrastructure improvements tailored to extreme weather conditions, ensuring energy continuity and efficiency.

One key factor driving this trend is the potential financial returns in developing markets. A 2022 report by the World Economic Forum (WEF) highlighted that the market for adaptation solutions in developing countries could reach $2 trillion annually by 2026. The report framed adaptation as an “enormous opportunity,” encouraging private sector actors to “place their bets” on A&R solutions, particularly in regions most vulnerable to climate impacts. By tying climate responsibilities to financial returns, businesses increasingly view climate change as an opportunity for wealth creation, often at the expense of broader equity and justice concerns.

While the intent to scale up adaptation is well-meaning, the growing focus on profitability risks sidelining the equitable and inclusive dimensions essential to climate justice. The inherent ethical concern in this commodified approach is evident as financial actors tie climate adaptation into a business-first endeavor. This approach may detract from the systemic changes required to address climate justice, equity, and resilience for the most vulnerable communities.

While these solutions address critical risks, their development and deployment are shaped by market incentives rather than equitable frameworks. Without deliberate efforts to integrate justice and equity, commodification may exacerbate inequalities in climate vulnerability.

Investment Drivers Responsible for Commodifying A&R Climate Solutions

Institutional investors and blended finance platforms increasingly recognize the financial opportunities within climate adaptation. Reports from major players such as BlackRock suggest that A&R investments are gaining traction because of the following:

– Hedging Against Climate Risks: Adaptation investments mitigate climate-related vulnerabilities, providing stability in diversified portfolios.

– Increasing Demand: Rising climate impacts drive the need for resilience solutions across agriculture, energy, and infrastructure sectors.

– Enhanced Project Returns: Incorporating climate risk assumptions (e.g., wildfire risk in energy infrastructure) can increase profitability.

Blended finance models, such as those employed by Climate Fund Managers Investor Two, are packaging A&R solutions as bankable projects to attract private capital. These approaches de-risk investments and promote private sector participation, further normalizing the commodification of resilience.

Recent studies, such as one from Harvard Business School, reflect a broader shift in corporate strategy. U.S. public companies are not only responding to climate risks but also actively framing them as business opportunities. This transformation signals the growing alignment between climate solutions and financial objectives, albeit with risks of prioritizing short-term returns over long-term equity.

Ethical Dilemmas of Commodifying A&R Climate Solutions

In a bid to raise the inherent issues in this new strategy among financial actors or private investors, the commodification of climate solutions could be problematic. For instance, in emerging markets, investments are sometimes directed into projects like large-scale solar or wind farms that benefit from tax incentives or land concessions but do not necessarily support local adaptation strategies or respect indigenous land rights. Conversely, in developed economies, investments might not align with national decarbonization targets, focusing instead on short-term profitability.

Some of the ethical dilemmas that arise from the commodification of climate solutions include:

– Misalignment with climate goals – If investments focus more on financial returns than on actual climate resilience or emission reduction, they could undermine global climate goals and the Nationally Determined Contributions (NDCs) under Article 4 of the Paris Agreement which embodies efforts by each country to reduce national emissions and adapt to the impacts of climate change.

– Equity Gaps – Here, the differential vulnerability and exposure of vulnerable groups, communities, and ecosystems to climate hazards is already recognized under the UNFCCC. As such, guidance on A&R action requires actual solutions for such groups and ecosystems. Still, when the motive for prioritizing these communities is profit-driven, resources may be shifted to wealthier regions and consumers, leaving these communities to bear the burden of the climate crisis.

– Climate Injustice – The commodification of A&R might exacerbate global inequities. Wealthier countries or communities could afford to invest in and benefit from these solutions. At the same time, developing nations or marginalized groups might be left with insufficient resources to adapt, thus widening the gap in climate resilience.

– Accountability and Responsibility – Commodification raises the question of who should be held accountable for ensuring that A&R investments are ethical and equitable. Should it be investors, governments, or international bodies? And how can we ensure that these entities act in the interest of climate justice?

– Risk of Greenwashing – With the rush to capitalize on climate solutions, there is a risk of greenwashing. Companies might overstate or misrepresent their contributions to A&R, leading to a false sense of progress in climate action.

– Future Generations – Today’s decisions regarding A&R investments will have long-term implications. We have an ethical responsibility to ensure these investments do not just serve current financial interests but also safeguard the environmental conditions for future generations.

This blog recognizes that markets are effective mechanisms for distributing many goods and services and rewarding returns on investment, but also acknowledges that market operations are not inherently devoid of moral considerations. Creating new forms of commodification creates new social and environmental problems. As a market investment strategy over actual environmental solutions, this approach tends to internalize the economic imperatives of market activities, which is a strategy that is becoming obvious in the way these solutions are generally promoted as one of the effective means for private investors and blended finance platforms to contribute to decarbonization.

Reforming Investments in Climate Solutions

Reforming investments in climate solutions through investment law internationally is a complex challenge. Some parts of these reforms are now front-burner issues among investment law scholars, such as the dispute settlement process and protection of foreign investors’ expectations. Yet, there is also a need to start carving out a new framework for investments in climate solutions that would not be treated as marketable assets.

For example, preferential treatment for foreign investment tends to arise from differences in overall approaches for balancing public and private interests, applicable substantive rules, and legal remedies, including damages awarded. To this end, South Africa’s constitution, for example, requires payment of ‘just and equitable compensation’, which must involve ‘an equitable balance between the public interest and the interests of those affected. This has prompted treaty drafting shifts, including more qualified language on indirect expropriation and environmental exceptions. For instance, the same approach can be adopted by adding new standards, especially in international treaties, to prevent the commodification of climate solutions.

As practitioners address specific climate finance issues through international law, especially in developing countries, they must also consider the evolving strategies employed by financial players who view the climate crisis as an economic opportunity. This is evident in how they frame adaptation and resilience (A&R) solutions and structure investments. Therefore, the United Nations Framework Convention on Climate Change (UNFCCC), investment law practitioners, and institutions should incorporate this emerging issue into their review of international investment treaties and laws in the context of climate change.

The already apparent inequities in these new commodified solutions raise concerns about the role of international investment law.  Carving out appropriate new standards in investment treaties would require considering equitable access, prioritization of vulnerable communities, and integration of justice considerations into the market mechanisms. This means incorporating clauses into investment treaties that ensure investments contribute to adaptation and resilience objectives.  Moreover, such clauses should mandate community engagement wherein financial gains from these investments are distributed equitably in the community.  They should also provide ethical investment incentives whereby climate solutions that prioritize the fundamental goal of sustainability over pure profit would receive tax benefits or recognition in global sustainability efforts.

Conclusion

The current investment law framework needs to be rethought to ensure that investments are aligned with decarbonization goals and the NDC priorities of host countries. As discussed throughout this blog, commodifying climate solutions within existing investment structures undermines justice-oriented approaches and exacerbates climate vulnerabilities. In response to this critical issue, this paper has proposed that carving out new frameworks in the current investment law model and binding them would prevent investments in climate solutions from being treated solely as marketable assets.

As detailed above, this framework reimagines A&R by centering on equity, ethical responsibility, and systemic transformation. This would help transform climate investments from mere economic opportunities, susceptible to the pitfalls of commodification analyzed earlier, into actual solutions for climate change governance. These reforms, alongside the current efforts of international law practitioners, would directly address the concerns raised regarding unchecked capital accumulation, commodification, pollution, and deepening socioeconomic inequality.

*Champion Olatunji has extensive experience working with both for-profit and non-profit organizations in the United States, serving in various capacities as a researcher and consultant on sustainable cross-border investment, climate change, and business law. His work has been published in peer-reviewed journals. He holds an LLM degree from Duke University School of Law and is a Clean Energy Leadership Institute (CELI) Fellow in Washington, DC.

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The Metalurgia Business Peru metallurgical complex in the city of La Oroya. Source: Human Rights Watch

This piece is part of the American Branch’s second blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Investment Law perspective. This symposium is sponsored by the International Investment Law Committee, but published works are solely those of the authors.

La Oroya – Assessing Human Rights Obligations in an International Investment Law Context

by Dean Kristen Boon and Nickolas Eburne*

Do international courts and tribunals speak with one voice?  The parallel proceedings of the Inter-American Court of Human Rights (IACtHR) in Case of La Oroya Population v. Peru (La Oroya v. Peru) and the ongoing investor-state dispute settlement (ISDS) tribunal hearing The Renco Group v, Inc. v. Republic of Peru, PCA Case No. 2019-46 (Renco v. Peru II) shows they do not.  These cases are a new chapter in the story of fragmentation and shared responsibility.

On March 22, 2024, the IACtHR declared that Peru was internationally responsible for breaching provisions of the Inter-American Convention on Human Rights, namely the right to a healthy environment (Article 26), the right to life (Article 4.1), the right to personal integrity (Article 5), the rights of children (Article 19), and other rights. The facts of the case are related to the La Oroya Metallurgical Complex, which is responsible for the smelting and refining of metals with high levels of lead, copper, zinc and arsenic, among others, in the small community of La Oroya in Peru. Eighty members of the community instituted proceedings against their national government for what they claimed were serious environmental failings in allowing the metallurgical complex to operate, considering its impact on the environment, as it contaminated the air, water, and soil of La Oroya.

Importantly, the Court found that the right to a healthy environmental comprised a bundle of procedural and substantive elements (para 118). The procedural elements included access to information, public participation in decision-making, and access to justice with effective remedies. The substantive elements included clean air, safe and sufficient water, healthy and sustainably produced food, non-toxic environments where people can safely live, work, learn and play, healthy ecosystems and biodiversity, and a safe, livable climate.

An important aspect of the Court’s decision was its emphasis on the principles of prevention and precaution. Pursuant to the principle of prevention, the Court said, “States are obliged to use all means at their disposal in order to prevent activities carried out under their jurisdiction from causing significant damage to the environment […] [t]his obligation must be fulfilled under a standard of due diligence, which must be appropriate and proportional to the degree of risk of environmental damage” (para 126). Indeed, most human rights obligations do not apply directly to corporations but rather are mediated through state obligations. The court discussed corporate responsibility of the mining companies briefly – noting in this case, both the State and the mining company had responsibilities in terms of regulation and supervision of risky activities.  Nonetheless, it stressed their obligations to protect environment and human rights, which the States must supervise, investigate and regulate.

In parallel, in the ongoing Renco v. Peru II investment dispute, Peru is defending itself from claims that it imposed additional environmental obligations on the Renco Group – the Applicant – concerning the management of the metallurgical complex and that it refused to grant reasonable extensions to complete environmental projects at the site. This, according to the Applicant, led to the investor being forced to cease operations at the metallurgical complex, causing it to become bankrupt. More specifically, the Applicant is claiming a violation of the 2006 BIT between Peru and the United States as relates to alleged unfair and inequitable treatment (article 10.5 of the BIT) and the indirect expropriation of the La Oroya complex.

The IACtHR decision and the ISDS dispute create a complex landscape for state responsibility where environmental obligations are concerned. Depending on the outcome of the Renco v. Peru II case, Peru may be put in the precarious position under international law of having both infringed the right to a healthy environment of the people of La Oroya and of having imposed overly stringent environmental requirements on the exploitation of the La Oroya mining complex.

International human rights law has traditionally had no direct horizontal effect; that is to say, it places no direct obligations on investors as private entities or on multinational corporations, despite the fact that corporations are powerful actors, sometimes more so than states. There are only a few direct obligations applicable to corporations generally, despite deep development of state responsibility, and neighboring fields of International Organizations and criminal responsibility, CSR and business and human rights.

The key issue, in this context, lies in the general perception that the objectives of human rights and investment regimes are sometimes seen as being incompatible with the objectives of human rights law.

There are differences, but also important similarities: in both ISDS and human rights individuals can claim rights violations committed by the state, but the converse is not true. Certainly, the purpose of both systems is to protect individuals against state power. Moreover, in the new generation of investment treaties, it has become more common for human rights norms to be incorporated into the treaty itself, as applicable law, or through provisions that require investments conform to domestic law. Therefore, although there is an instinct to treat them as autonomous areas of law, they also interact.

There have tended to be five different general “categories” of investment disputes where human rights concerns can appear: cases where (i) the investor claims human rights abuse, (ii) the investor’s actions violate the human rights of the host state population, (iii) the host state alleges that the investor has human rights responsibilities, (iv) the host state amends its legislation to better comply with human rights obligations, and (v) where the host state invokes human rights to seek exceptions from investment protection provisions.

Cases where the investor claims human rights abuse are the rarest. This consists of investors – being individuals – claiming that the host state has violated their human rights. This occurred in Bozbey (where the investor was tortured) and Tulip (investor denied due process). In another case, Biloune and Marine Drive Complex Ltd. v. Ghana (Biloune v. Ghana), the claimant alleged that it had been subjected to denial of justice, and arbitrary detention and deportation. Yet, the tribunal found that it did not have jurisdiction over these claims. Some other tribunals, however, have integrated human rights reasoning into their awards (Micula v. Romania, Al Warraq v. Indonesia).

Source: Liliana Ávila/AIDA

The second category of cases, where the investor’s actions violate the human rights of the host state population, can occur in the context where security measures are taken to protect installations or where employment issues cause forced labor, or in the case of defective performance of water supply contracts for example. In some cases , states have been found responsible as co-perpetrators or for failing to prevent violations of international law. In others, investors have been denied the right to bring claims because of the “clean hands” doctrine under international law, which, creates admissibility issues.   Sometimes, human rights – such as the right to water – have been found to be part of the framework for a claimant’s legitimate expectations  under international investment law.   As a result, emergency measures did not constitute a violation of substantive treaty provisions.

Host states have also, in some disputes, alleged that an investor had HR obligations to abide by. This in the third “category” of investment disputes where human rights concerns can appear; In the Urbaser case, for example, Argentina made the argument in its $190 million counterclaim under a Spanish – Argentinian BIT against the investor that the latter had HR obligations to uphold. Indeed, Argentina claimed that the investors had violated the right of its population to access water; even though the counterclaim failed, this case remains landmark in terms of allowing human rights considerations in a host state’s counterclaim against private investors.

In the fourth category, some host states have taken measures to better comply with their human rights obligations (i.e. legislation or administrative acts related to social security, improvement of water resource protection, and affirmative action). This was the case in Piero Foresti, Laura de Carli and others v. Republic of South Africa (Foresti v South Africa) (ICSID Case No. ARB(AF)/07/1), for example, where the host nation invoked human rights by reference to the UN Convention against racial discrimination to defend its affirmative action policy. It is significant that the new generation of investment treaties carve out regulatory space for states, particularly on issues of public policy such as health and the environment and refer directly to corporate social responsibility (CSR) in preambles and operative parts of treaty.

Finally, the host state can invoke human rights to derogate from investment protection provisions as well. human rights, at its core, involve a balancing test; and in certain cases (i.e. national security), states may need to derogate from a particular treaty obligation. In both the CMS Gas Transmission Company v. Argentina (2005) and Suez, Sociedad General de Aguas de Barcelona S.A. v. Argentina (2010) cases, Argentina invoked human rights and necessity in its defense during the severe economic and social crisis that occurred in the country in the early 2000s. Argentina argued that the crisis, which led to widespread poverty, unemployment, and social unrest, justified its measures, including the freezing of utility tariffs and other regulatory actions that negatively affected foreign investors. Argentina stated that stopping the wide-spread economic and social crisis through its measures essentially protected human rights, and that the investment treaty should not prevail in this conflict of norms.  The host state also made a plea of necessity under the Articles on State Responsibility (ASR).  However, the tribunal found the defenses were not justified in those cases.

This mapping exercise, delineating between five categories of cases wherein questions of human rights obligations are raised, can help contextualize what we believe is a broader move towards investor responsibility both in human rights and in international investment law. This argument is supported by the increasing human rights substantive standards found in investment treaties, and by domestic law obligations for foreign investors to adhere by domestic law human rights standards. Certain procedural obligations, such as the disclosure obligations on funding, or transparency obligations, also indicate a broader move toward an arena where investors need to be more responsible in the way in which they conduct their activities. Some investment treaties even reference human rights, such as the Nigeria – Morocco BIT (signed but not in force) at Articles 15 and 18 and the 2019 Netherlands Model BIT  which includes references to due diligence, expectations that tribunals consider non-compliance with Business & Human Rights / CSR standards into account, and gender/social risk analysis. Furthermore, the UNCITRAL Working Group III has engaged with human rights issues, such as third-party representation, which could allow Indigenous communities whose human rights have allegedly been violated by investors to make counter claims and claim damages of their own. Finally, we have also seen a hardening of human rights and CSR related language in investment treaties from the soft formulations of earlier days. For example, the African Continental Free Trade Area (AfCFTA) Protocol on Investment, adopted in 2023, contains environmental, social, and governance (ESG) and CSR standards, in addition to language promoting gender equality and inclusion.

As the Oroya dispute unfolds, there will be much to discuss with regards to state responsibility. Its outcome will shape the continuation of this debate in coming years: will the tribunal cement the argument that there is a broader move towards investor responsibility in the world of international investment law, or will it instead reopen the debate on this issue? And where might Peru find itself at the dispute’s conclusion?

Even following the award in the Renco v Peru II dispute, the status of human rights in international investment law will remain contested. However, perhaps this award will help frame the discourse around the interaction of human rights and international investment law, and this might in turn reach the ears of prospective foreign investors.

*Kristen Boon is the inaugural Susan & Perry Dellelce Dean of Common Law at the University of Ottawa. Dean Boon is a specialist in international law and contracts. She has a particular interest in treaty interpretation, international responsibility, sanctions, and immunities. Dean Boon is an expert on investor/state dispute resolution. Dean Boon is the proud Editor in Chief of the Canadian Yearbook of International Law. She is also a former member of the Executive Council of the American Society of International Law and a current member of the Institute for Transnational Arbitration’s Academic Council.

Nickolas Eburne is a Staff Officer/Legal Advisor to the NATO Allied Comand Transformation. His previous roles include Legal Counsel with the Canadian House of Commons and Junior Trade Policy Officer with Global Affairs Canada. Eburne is the Co-Chair of the American Society of International Law’s Anti-Corruption Law Interest Group and is a 2024 recipient of ASIL’s Arthur C. Helton Fellowship. He holds his JD and LLM in International Trade and Foreign Investment from the University of Ottawa.

The opinions shared in this publication are the authors’ own, and do not reflect those of their employers.

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