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Announcements: Geneva Summer School; ESIL Law of the Sea Panel; Oxford Clarendon Law Lectures; Salzberg Summer Session

Published on April 19, 2014        Author: 

1.  The Geneva Summer Schools at the University of Geneva is excited to announce a 2014 summer school on “International Protection of Cultural Heritage in the 21st-Century”, 16 June to 27 June 2014. The two-week course taught in English in Geneva is aimed at BA and MA students interested in cultural heritage law, and will include lectures from faculty from international institutions and organizations. The summer school offers an overview of the international and comparative law for the protection of cultural heritage. The course aims to develop the students’ awareness of the main substantive themes of cultural heritage law, namely: the protection of cultural property in times of war; the restitution of artworks lost as a result of theft, illicit excavations and illicit trade; the protection of the built heritage and of the human rights associated to the tangible and intangible heritage. In order to offer an up-to-date glance at cultural heritage law, the summer course will also focus on the different ideological positions of the relevant stakeholders and on its complex relationship with other fields of law – namely general international law, human rights law, intellectual property law, and international investment law – and with the issue of dispute settlement. Finally, this course aims to bring out the challenges to cultural heritage that emanate from old and new threats. To name but a few: armed conflicts; reduced protection of sites and monuments due to lack of public money and political support; natural catastrophes; and damage to cultural sites caused by human activities.Students must apply online with a short letter of motivation and a CV. Course places are limited and enrollment is on a rolling basis so students are encouraged to apply early.

2.  On the occasion of the 10th Anniversary Conference of the European Society of International Law taking place in Vienna, the ESIL Law of the Sea Interest Group will convene a panel on ‘International Law… and the Sea’, which will take place on 3 September 2014. See the call for papers here.

3.  Professor Harold Koh will be giving this year’s Clarendon lectures at the University of Oxford, speaking about Law and Globalization.” The lectures will take place over three evenings and are open to everyone: Tuesday 6th May, 5-6:30pm, Pichette Auditorium, Pembroke College (Followed by a drinks reception in the foyer by the auditorium 6:30-7:30pm). Thursday 8th May, 5-6:30pm, The Gulbenkian Lecture Theatre, Faculty of Law, St Cross Building. Tuesday 13th May, 5-6:30pm, The Gulbenkian lecture theatre, Faculty of Law, St Cross Building. Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. He returned to Yale Law School in January 2013 after serving for nearly four years as the 22nd Legal Adviser of the U.S. Department of State.

4.  The Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS) welcomes applications for its Sixteenth Summer Session, “International Criminal Law at the First World War Centenary — From Consolidation Towards Confrontation?”, Sunday 3 to Friday 15 August 2014. The SLS is a two-week summer programme aimed at postgraduate students, young academics and practitioners. This year’s session will scrutinize principles and procedures of international criminal law, their origins and contemporary challenges to their enforcement. In this context, there will be a special thematic focus on the principle of irrelevance of official capacity under international customary law and the Rome Statute of the International Criminal Court (ICC) as well as on controversies stemming from the Court’s cases against sitting heads of States, proposed changes to the Rome Statute and policy considerations determining the selection of situations and cases. Other topics include the Kampala amendments to the Rome Statute, the rights of the defence in international criminal proceedings, the role of international investigation commissions, as well as recent decisions and judgements of the ICC and the ICTY. Further information on the academic programme and a preliminary list of speakers are available hereThe application period ends on Friday 9 May 2014.

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ICC Issues New Decision on Al-Bashir’s Immunities ‒ But Gets the Law Wrong … Again

Published on April 18, 2014        Author: 

André de Hoogh.croppedAbel Knottnerus.croppedAndré de Hoogh (pictured left) is a Senior Lecturer in International Law in the Faculty of Law of the University of Groningen. Abel S. Knottnerus (pictured right) is a PhD Researcher at the Legal Theory Department of the University of Groningen.

Last week Pre-Trial Chamber II (PTC) issued a new decision on the obligation of ICC States Parties to arrest President Omar Al-Bashir irrespective of his immunities as Head of State (here). The PTC found that the Democratic Republic of the Congo (DRC) failed to cooperate with the Court by not arresting the Sudanese President during his visit to the country earlier this year and decided to refer the matter to the Assembly of States Parties and the Security Council.

This finding does not come as surprise. The PTC established in previous decisions that all States Parties have an obligation to arrest Al-Bashir and found that Chad and Malawi failed to comply with this obligation by welcoming Al-Bashir on their territory in 2011. However, the motivation underlying the Court’s latest decision is novel. In contrast to the much debated rulings on the non-cooperation of Malawi (here) and Chad (here), the PTC did not base its new decision on an exception existing under customary international law to the personal immunities of Heads of State when they face prosecution before an international criminal tribunal. Instead, the PTC held that Security Council Resolution 1593, which referred the situation in Darfur to the Court, “implicitly waived the immunities granted to Omar Al-Bashir under international law and attached to his position as a Head of State” (para. 29).

As readers might recall from previous posts (here), Dapo Akande has advised the PTC to follow a similar “route” on this issue. In his posts and publications (here, for other commentators see here and here), he has maintained that the Court could decide:

“[that the Security Council’s referral] has the consequence that Sudan (or Libya) is bound by the Statute (including Article 27)… [T]his would therefore mean that those States are to be regarded as in the same position as a State party to the Rome Statute” (here).

In this post, we want to make a number of provisional – but already quite critical – observations on the Chamber’s new decision. Most importantly, this post is meant to give a kick-start to the discussion on the Court’s remarkable change of heart. Read the rest of this entry…

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More on the UN and Surveillance and Privacy in the Digital Age

Published on April 17, 2014        Author: 

The Office of the High Commissioner for Human Rights is now conducting a consultation for the purpose of preparing the High Commissioner’s report pursuant to the UN General Assembly’s resolution on privacy in the digital age. Some of the major privacy/human rights NGOs have now made their submissions public: here is the paper submitted jointly by Privacy International, Access, Electronic Frontier Foundation, Article 19, Association for Progressive Communications, Human Rights Watch, and the World Wide Web Foundation; and here is the submission by the Center for Democracy and Technology. The NGOs argue, inter alia, that Article 17 ICCPR applies to (extraterritorial) surveillance activities and that the bulk collection of communications data is inherently disproportionate.

UPDATE: All of the submissions are now available on the OHCHR website.

Quoting verbatim from the GA’s resolution, the Human Rights Council has also decided to convene a panel on the right to privacy in the digital age at its 27th session, to be held in September. The multi-stakeholder panel is to discuss ‘the promotion and protection of the right to privacy in the digital age in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale, also with a view to identifying challenges and best practices, taking into account the report of the United Nations High Commissioner for Human Rights requested by the General Assembly in its resolution 68/167.’

Readers may also recall that a few months ago I did a series of posts on human rights and foreign surveillance. I’ve since written up a more developed and expanded article based on that series, which takes into account developments as of March 2014, including the Koh memos and the concluding observations of the Human Rights Committee on the US fourth periodic report. The article will be published in the Harvard International Law Journal, and the draft is now available on SSRN. Comments are as always welcome; the abstract is below the fold.

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Sense and Nonsense of Territorial Referendums in Ukraine, and Why the 16 March Referendum in Crimea Does Not Justify Crimea’s Alteration of Territorial Status under International Law

Published on April 16, 2014        Author: 

Referendum in Crimea

Yesterday, on 15 April 2014, Ukrainian interim president Turtschinov considered to hold, simultaneously with the presidential elections, a referendum on regional competences in Ukraine. On 8 April 2014, separatists in the Ukrainian region of Donetsk proclaimed that they would hold a referendum on the independence of that Eastern region of Ukraine. Some days before, representatives of the Crimean Tatars announced that they sought to hold a referendum on their political autonomy within Crimea.

On 16 March 2014, the population of Crimea had overwhelmingly voted in favour of joining the Russian Federation. The population was asked to choose between the following alternative: “1) Are you in favour of Crimea joining the Russian Federation as a subject of the Russian Federation?” or “2) Are you in favour of re-establishing the 1992 constitution of the Republic of Crimea and Crimea’s status as a part of Ukraine?” The maintenance of the territorial and status quo was not given as an option in that referendum, and no international observers were admitted. With a voter turnout of 83.1 %, 93 % answered with a “Yes” to the second question, and thus pronounced themselves in favour of joining the Russian Federation.

The spokespersons of the Tatars now declare that their ethnic group had boycotted the referendum of 16 March, and assert that the majority of Tatars would have preferred to stay within Ukraine. Tatars currently form about 10 percent of the Crimean population. Probably hundreds of thousands of Tatars were killed, starved, and were deported from the 1920s to the 1940s under Soviet policy. The new government of Crimea rejects the idea of a politically autonomous territory for the Crimean Tatars but holds that the Tatars can only claim “cultural autonomy”.

The 16 March referendum, and announced further territorial referendums in Ukraine, place in the limelight the problématique of this legal institution. Are not the outcomes of referendums in ethnically mixed units most often ethnically pre-determined? And does not the resort to a referendum lead to ever smaller subgroups which again seek to detach themselves from a larger one? After all, the Ukrainian people, including the Crimean population, had some 20 years ago voted in favour of independence from the Soviet Union. (See on the 1991 referendum in Ukraine Anne Peters, Das Gebietsreferendum im Völkerrecht (Baden-Baden: Nomos 1995), 184-88; specifically on previous Crimean referendums ibid., 190-91, 211-15). That Ukrainian referendum of 1 December 1991 had been at the time widely appreciated as having rung the death knell for the dissolution of the USSR one week later, when the Agreement Establishing the Commonwealth of Independent States of Minsk of 8 December 1991 declared that the Soviet Union had ceased to exist. But even before that date, and later, Crimean politicians had several times (in 1991, 1992, 1994, and so on) planned and sometimes held “polls” on a special status of Crimea.

This post postulates that, as a matter of international customary law, and as a matter of legal consistency and fairness, a free territorial referendum is emerging as a procedural conditio sine qua for any territorial re-apportionment. However, the 16 March referendum was not free and fair, and could not form a basis for the alteration of Crimea’s territorial status. Read the rest of this entry…

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Customary International Law as a Dance Floor: Part II

Published on April 15, 2014        Author: 

The first part of this blog post commended the self-restraint of the ILC Special Rapporteur on the identification of customary international law. It simultaneously argued that the work of the ILC, somewhat paradoxically, laid bare a formidable emancipatory fervour at play outside the Palais des Nations. It is as if the intellectual prison of custom was gradually being turned into a large dance floor where (almost) everything goes. The following observations substantiate that claim and shed light on some of the consequences of this ongoing revelling.

Hunting (and finding) practice everywhere

It has long been accepted that the myth of induction in the theory of customary international law was more difficult to uphold in relation to opinio juris. This is why the subjective element has always been the object of the most severe criticisms or reservations. Yet, international legal scholars have started to realise that the myth of induction is not less difficult to vindicate in connection to the objective element, i.e. practice. As the Nicaragua decision famously taught us, how can one possibly ascertain the unascertainable, that is an intangible practice of abstention? Since the great majority of rules of international law are of a prohibitive character, the establishment of customary international law very often requires a speculative venture into nothingness. Confronted with this overdue realisation that practice – especially with respect to prohibitive rules – was not more easily captured inductively than opinio juris, international lawyers have been forced to resort to all new sorts of nets and traps to hunt and capture practice where there was none.

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Customary International Law as a Dance Floor: Part I

Published on April 14, 2014        Author: 

International lawyers’ thirst for argumentative freedom seems unquenchable. Nowhere is this more conspicuous than in the debate unfolding around the current work of the International Law Commission (hereafter ILC) on the identification of customary international law. Indeed, whilst the ILC has espoused a rather self-restrained approach so far, its study on the identification of customary international law has laid bare the prodigious emancipatory fervour at work outside the Palais des Nations. Particularly remarkable is the widespread presupposition that, in order to allow customary international law to serve the various agendas of ambitious 21st century international lawyers, one can simply toss out some of the elementary constraints around which the 20th century modern theory of customary international law had been shaped.

As this short note will argue, the emancipation from the traditional theory of customary international law at play in international legal scholarship, and unveiled by the current work of the ILC, is perplexing. This is certainly not because the traditional and modern theory of customary law should be redeemed. The inconsistency and deceitfulness of customary international law have long been proven. It is even astounding that such a frail gospel has been able to survive for so long. What is perplexing is that international lawyers may currently be replacing the duplicitous prison of customary international law with a dance floor where (almost) anything goes while still believing that this uncomplicated discourse-production technique can serve all their – sometimes extravagant – ambitions. It is contended in the following observations that this argumentative freedom is not only bound to be short-lived but may also end up depriving international lawyers of what has so far been a surprisingly useful discursive technique to create authority and make demands of the world.

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Announcements

Published on April 12, 2014        Author: 
1.  The Essex Transitional Justice Network and the Essex Business and Human Rights Project announce Summer School 2014: Settling Accounts: The Role of Business in Societies Emerging from Conflict and Authoritarian Rule, to be held 18-21st September 2014 (University of Essex, Colchester campus).  Building on the strong expertise at Essex on transitional justice and corporate accountability, the ETJN, together with the Essex Business and Human Rights Project (EBHR), will be running its III Transitional Justice Summer School between 18 and 21 September 2014. The summer school will consider the role of businesses in societies emerging from conflict and authoritarian rule, including different issues of corporate accountability that might arise in these contexts and mechanisms to address it. Experts in both corporate accountability and transitional justice will be provided with a forum to discuss specific topics such as project lending; debt and financial complicity, as well as litigation and advocacy strategies. Teaching staff includes: Professor Sheldon Leader, director of the Essex Business and Human Rights Project; Professor Sabine Michalowski, editor of the only book on the subject: Corporate Accountability in the Context of Transitional Justice; Professor Karen Hulme expert on human rights and the environment and winner of the ASIL price for her book War Torn Environment: Interpreting the Legal Threshold; Charles Abrahams, senior director of Abrahams Kiewitz Incorporated, a South African boutique law firm specializing in class actions, public interest law, and litigation in the area of business and human rights; Anneke Van Woudenberg, Senior Researcher at Human Rights Watch and Richard Meeran and Daniel Leader, Partners at Leigh Day and with extensive litigation in cases involving corporations and countries in transition. Further details are available here. For more information, contact etjnfr03 {at} essex.ac(.)uk.
2.  Confidence Crisis in Human Rights: Implications for the UK. Middlesex University, London 30 June to 4 July 2014. This 5 day intensive course will explore the challenges faced by the human rights regime, resulting from the mistrust towards the system voiced by countries which, like the UK in Europe or Brazil in the Americas, once helped to create and embrace the human rights machinery. The course will explore the ideologies and geopolitical conditions resulting in this evolution through the prisms of controversial topics dominating intergovernmental human rights agendas in Europe and worldwide, in particular: the rights to freedom of expression and freedom of religion;  the consequence for human rights of austerity measures and migration policies; the role of the UN Security Council  in conflict zones; and the difficulty to accommodate within the human rights framework emerging topics such as  the impact of activities undertaken by corporations in relation to development projects, and the protection of the environment. Further details are available here.
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The ILC’s Clever Compromise on the Validity of Reservations to Treaties: A Rejoinder to Marko Milanovic and Linos-Alexandre Sicilianos

Published on April 11, 2014        Author: 

In ‘The ILC’s Clever Compromise on the Validity of Reservations to Treaties’, Marko Milanovic and Linos-Alexandre Sicilianos say the ILC Guide to Practice on Reservations to Treaties strikes a clever compromise by holding on to a general regime on reservations to treaties and, at the same time, making human rights lawyers happy.  They also characterise the ILC Guide as a ‘Vienna Plus’ regime – indicating that the ILC Guidelines go beyond the rules of the VCTL and, in many respects, adapt the VCTL to present day conditions.

We agree that the new regime proposed is indeed a ‘Vienna-plus regime’. We also agree that the ILC special rapporteur on reservations, Alain Pellet, changed his views on objections to reservations within the context of international human rights law between when the study started in 1993 (Report of the ILC on the work of its forty-fifth session, para. 430) and ended in 2011 (Report of the ILC, sixty-third session). We, however, wish to highlight one point of reminder and one point of query with regard to the clever compromise.

First, the solution offered by the ILC report suggesting that an objective validity test under Article 19 comes prior to the subjective objections of states under Article 20 was originally proposed by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1999, pursuant to the Sub-Commission decision 1998/113 entitled “Reservations to human rights treaties”. Second, the ILC report goes further than current UN human rights law practice when it comes to the assessments of the human rights treaty bodies with regard to the invalidity of reservations. It takes a more radical step than current practice.

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The Use of ‘Do it Yourself’ Barrel Bombs under International Law

Published on April 10, 2014        Author: 

Among the continuing horrors reported from Syria, it is the use of certain weapons that time and again makes the headlines. While the use of chemical weapons led to an important response from the international community, in recent months attacks with so called ‘barrel bombs’ triggered an international echo. In its latest resolution on Syria the UN Security Council demanded all parties to cease ‘the indiscriminate employment of weapons in populated areas, including shelling and aerial bombardment, such as the use of barrel bombs’. UN Secretary General Ban called these weapons ‘horrendous’, France found that these weapons ‘sought to indiscriminately kill people’, and for the UK the use of these weapons against civilian areas constitutes ‘yet another war crime’ by the Assad regime. Different human rights groups, such as Human Rights Watch or the Syrian Network for Human Rights, report that the use of barrel bombs has caused high numbers of dead, the vast majority of which are civilians. There is no question that war crimes are committed in Syria, especially by the Assad regime. It is, however, less clear to what extent international law prohibits the use of barrel bombs in non-international armed conflicts, and whether their use constitutes a war crime.

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Mackerel War Called Off?

Published on April 9, 2014        Author: 

In November 2013 we wrote about a remarkable WTO dispute initiated by Denmark against the EU (The ‘Mackerel War’ Goes to the WTO). The case is remarkable because it has pitted one EU Member state against the other 27. Denmark, a member of the EU, brought the case “in respect of the Faroe Islands” which are part of Denmark, but not of the European Union.

The dispute concerns fishing quotas jointly managed by the Faroes, Iceland, Norway, Russia, and the EU under the Atlanto-Scandian Herring Management Arrangements. In annual negotiations, the parties decide on the division of the total allowable catch (TAC). In 2013 parties were unable to reach agreement, largely due to refusal to accommodate the Faroe Islands request for a larger part of the Total Allowable Catch (TAC).

When the Faroe Islands unilaterally decided to increase their catch, the EU responded by prohibiting import of herring and mackerel from the Faroe Islands. Denmark then brought a WTO dispute as well as arbitration proceedings under Annex VII of UNCLOS. In its request for consultations to the WTO, Denmark claimed the EU’s response to be in breach of GATT Article I:1, V:2 and XI:1. Denmark also reserved its rights under UNCLOS.

The parties have recently settled their dispute in respect of mackerel. On 12 March 2014, the Faroe Islands, Norway and EU concluded a joint arrangement for the conservation and management of the North East Atlantic mackerel stock for the next five years. The arrangement allocated 13% of the TAC between the parties (not including Russia and Iceland) to the Faroe Islands. This is a sizeable increase compared with the 5% that had been previously allocated to the Faroese, and the proportion is set to increase again next year.

The WTO dispute, however, is centered on herring, whereas the new agreement only deals with mackerel. Pending an agreement on herring, the WTO complaint and the UNCLOS Annex VII arbitration continue, and EU Regulation 793/2013, establishing sanctions against the Faroe Islands, remains in force. Read the rest of this entry…

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