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Are Human Rights Hurting Migrants at Sea?

Published on April 24, 2015        Author: 

Every year hundreds of thousands of irregular migrants, including asylum seekers and refugees, cross the Mediterranean Sea to enter Europe. More than 200.000 are thought to have crossed in 2014, reaching the coasts of Italy, Greece, Spain, Malta and Cyprus.

The reasons for the crossing are obvious. Some migrants flee conflict and persecution; others simply seek a better life in Europe. Regardless of motivations, crossing is not without perils. The UNHCR estimates that 3.500 lives were lost in 2014 while more than two thousand people have died since 1 January 2015.

After more than 300 migrants drowned near the island of Lampedusa in 2013, the Italian Government established the so-called Operation Mare Nostrum. Mare Nostrum was a humanitarian success. The International Organization for Migration applauded the “heroic work of Italy’s maritime forces”, which rescued some 100.000 people between 2013 and 2014. Despite widespread praise, Mare Nostrum ended in October 2014.

In its place, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (known by the more palatable name Frontex) established operation Triton. Read the rest of this entry…

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The Fog of Law

Published on April 21, 2015        Author: 

Eirik Bjorge and Marko Milanovic have written trenchant critiques of the Policy Exchange Report: Clearing the Fog of Law. They have pointed out the Report’s flaws with regard to the travaux of the Convention, the intention of the drafters, the evolution of the case-law on extraterritoriality, and the relationship between human rights law and the law of war. I wish to add three small points to the discussion.

First, it is worth dwelling on the Report’s subtitle: ‘Saving our Armed Forces from Defeat by Judicial Diktat.’ All of us who write, whether in the academy or policy-circles, face the challenge of thinking up interesting titles for our pieces, predominantly in the hope that they will be read. We are not always successful. But to retreat to hysterical overstatement is no solution, especially when it rests on flawed analysis and insufficiently motivated argument. Leaving aside the strained relationship between the parochial ‘our’ in the sub-title and the purposes of academic freedom, the Report produces little evidence of any real threat of grave defeat. We are simply told that the ‘spectre’ of the ‘imperial judiciary’ now ‘haunts’ commanders; that the departure from the European Court of Human Rights’ decision in Bankovic and its decision in Al-Jedda entail ‘human rights imperialism’ and ‘judicial imperialism’ respectively; and that the UK Supreme Court’s decision in Smith has already ‘compromised the warfighting capabilities of the British Armed Forces.’

Second, there is an obvious disjuncture in the Report between cases such as Smith involving British troops and cases such as Al-Skeini involving foreign citizens. In response to the second class of cases, the authors argue that their intention isn’t to make the law fall silent amid the clash of arms but to apply and strengthen the laws of war. In response to the first class – Smith and its ilk – this is not an option: there is no Geneva Convention V for the Amelioration of the Rights of State Parties’ Own Soldiers. Read the rest of this entry…

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The Law and Politics of the Kosovo Advisory Opinion

Published on April 20, 2015        Author: 

The Law and Politics of the Kosovo Advisory OpinionI’m happy to report that OUP have now published a collection of essays edited by Sir Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion. Michael and I are especially happy with the cover, which is gloomy in a very nice way. Our intro to the book is available here, while a smattering of draft chapters is also freely available on SSRN.

Here are the blurb and the ToC:

This volume is an edited collection of essays on various aspects of the 2010 Kosovo Advisory Opinion of the International Court of Justice. The main theme of the book is the interplay between law and politics regarding Kosovo’s independence generally and the advisory opinion specifically. How and why did the Court become the battleground in which Kosovo’s independence was to be fought out (or not)? How and why did political arguments in favour of Kosovo’s independence (e.g. that Kosovo was a unique, sui generis case which set no precedent for other secessionist territories) change in the formal, legal setting of advisory proceedings before the Court? How and why did states supporting either Kosovo or Serbia choose to frame their arguments? How did the Court perceive them? What did the Court want to achieve, and did it succeed in doing so? And how was the opinion received, and what broader implications did it have so far? These are the questions that the book hopes to shed some light on. To do so, the editors assembled a stellar cast of contributors, many of whom acted as counsel or advisors in the case, as well a number of eminent scholars of politics and international relations whose pieces further enrich the book and give it an interdisciplinary angle. The book thus tells the story of the case, places it within its broader political context, and so attempts to advance our understanding of how such cases are initiated, litigated and decided, and what broader purposes they may or may not serve.

Read the rest of this entry…

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Announcements: Human Rights Integration Conference (Ghent); ICC Summer School (Galway); Conference on ECHR & General Int’l Law (Strasbourg); Gary Born’s ESIL Lecture Online; New EJIL:Live! Episode Online; Seminar on Public Int’l Law and EU Law (London); Int’l Law MOOC

Published on April 18, 2015        Author: 

1.  On 9-11 December 2015, the Human Rights Integration network will organize an international conference in Ghent to explore the foundations and implications of human rights fragmentation and integration, entitled ‘The Global Challenge of Human Rights Integration-Towards a Users’ Perspective’. As a political and ethical project, human rights are one, indivisible and universal. As law however, they are fragmented. Human rights law today is characterized by the simultaneous existence of a large variety of norms, developed by numerous actors, at different geographical levels, addressing similar or different topics, individuals and groups. As a result, human rights scholarship often focuses on one or more specific rights, target groups or jurisdictions, which in turn contributes to creating a fragmented, compartmentalized view of human rights law. However, rights holders, duty bearers and other ‘users’ of human rights are confronted simultaneously with multiple layers of human rights law, amongst which there is generally little coordination. For justice seekers, the complex architecture of human rights may create opportunities as well as obstacles. The starting proposition of the conference organizers is that it is highly relevant for human rights scholars to add an integrated perspective of human rights law to our work. This implies studying not only separate norms or mechanisms, but also their simultaneous application, what that implies for the users of human rights law, and how these users deal with that reality. The conference intends to facilitate a dialogue among legal and socio-legal perspectives on human rights fragmentation and integration. Through this dialogue, the conceptual, theoretical and methodological foundations of human rights fragmentation and integration will be refined and the legal and practical implications of human rights fragmentation and integration will be studied. For more information on the conference see here.

2.  The Irish Centre for Human Rights is hosting its annual International Criminal Court Summer School from 15-19 June 2015 at NUI Galway. An early bird registration fee of €400 is available before 20 April 2015 (registration costs €450 after this date). To register and for more information, please see here.

3.  The European Convention on Human Rights and General International Law. A one-day conference entitled The European Convention on Human Rights and General International Law is being organized jointly by the European Court of Human Rights and the European Society for International Law. The programme includes presentations by ten judges from the European Court of Human Rights, as well as presentations by judges from the International Court of Justice, and other judges and international law scholars. More information here. Read the rest of this entry…

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Mauritius v. UK: Chagos Marine Protected Area Unlawful

Published on April 17, 2015        Author: 

On 1 April 2010, the UK declared the world’s largest Marine Protected Area (MPA) around the Chagos Archipelago. The Archipelago is one of 14 remaining British overseas territories, administered by the UK as the British Indian Ocean Territory (BIOT). In contrast to other British overseas territories such as the Falklands/Malvinas and Gibraltar, BIOT is not on the UN list of non-self-governing territories. There is currently no permanent local population because the UK cleared the archipelago of the Chagossians between 1968 and 1973.

Mauritius and the UK both claim sovereignty over the Chagos Archipelago. The largest island of the Chagos Archipelago – Diego Garcia – has since the late 1960s housed the most important US military base in the Indian Ocean. The UK leased the island for defense purposes to the US in 1966, prior to Mauritian independence in 1968. The 50-year lease of Diego Garcia is due to be renewed in 2016.

In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. UK), a tribunal constituted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) issued its award on 18 March 2015. The tribunal found that the UK’s declaration of the MPA disregarded Mauritius’ rights, rendering the MPA unlawful. The award raises the prospect that the renewal of the lease in 2016 will require the UK to meaningfully consult Mauritius.

Mauritius made four submissions to the tribunal:

First: The UK was not entitled to declare a MPA because it was not a coastal state under UNCLOS (the ‘sovereignty claim’, according to the UK)

Second: The UK was prevented from unilaterally declaring the MPA due to Mauritius’ rights as a coastal state under UNCLOS

Third: The UK may not take any steps to prevent the Commission on the Limits of the Continental Shelf from making recommendations to Mauritius in respect of any full submission to the Commission that Mauritius may make

Fourth: The UK’s declaration of the MPA was incompatible with substantive and procedural obligations under UNCLOS

The jurisdictional part of the award is centered on whether the four submissions concern the ‘interpretation or application of UNCLOS’ under Article 288 UNCLOS. This blog entry concentrates on the merits as regards the Fourth Submission. Read the rest of this entry…

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A Really, Really Foggy Report

Published on April 15, 2015        Author: 

Eirik Bjorge has written an excellent critique of the Policy Exchange report Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, by Richard Ekins, Jonathan Morgan, and Tom Tugendhat. I now write only to add a few additional (and apologetically undiplomatic) comments which I think the report warrants. I do so not because it may be substantively wrong in its conclusions and prescriptions, although some of these may be subject to reasonable disagreement. In fact, when it comes to one of the report’s main recommendations, that the UK (and other states parties) should derogate from the ECHR in (extraterritorial) situations of armed conflict, I at least am on the record as arguing that extraterritorial derogations are both permissible and that they can be a good idea.

My problem with the report is hence not with (some of) its conclusions, but with the quality of its analysis, leading to the misdiagnosis of the chief ailment that it identifies – allegedly extravagant judicial overreach. I have to say, regretfully, that the report’s analysis is crude and unsophisticated. It is in fact so crude and unsophisticated that it does a disservice to the overarching position it advances. The report is moreover manifestly clouded by the politics of its authors. Not that there is anything necessarily wrong, mind you, with the report of a right-of-centre (or left-of-centre, or whatever) think-tank demonstrating a distinct political bent. The problem here is rather that the authors allow their political predilections to solidify into a type of confirmation bias that all too easily leads to errors in judgment, argument, and method. Let me explain how and why.

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The Viability of Corruption Defenses in Investment Arbitration When the State Does Not Prosecute

Published on April 15, 2015        Author: 

Corruption has become a focal point in international investment arbitration, as investors and respondent States both have alleged corruption as the basis for claims and defenses in a number of recent investment arbitrations. Decisions in cases such as World Duty Free v. Kenya and Metal-Tech v. Uzbekistan confirm that corruption is contrary to international public policy and the laws of nearly all nations. Accordingly, if an investment tribunal finds that the investor obtained its investment through corruption, the tribunal will conclude that it lacks jurisdiction over the dispute or that the investor’s claims are inadmissible.

Certain commentators have suggested, however, that respondent States should be required to prosecute the allegedly corrupt parties in order to raise defenses based on corruption. A threshold question thus is whether a State should be deemed to have acquiesced in the alleged corruption and thus be estopped from asserting any related defenses, if it failed to prosecute the allegedly responsible individuals.

As early as 2000, the tribunal in Wena Hotels v. Egypt remarked that it was “reluctant to immunize Egypt from liability in this arbitration,” because the government of Egypt had been aware of the consulting agreement that allegedly was used to conceal corrupt payments, and had “decided (for whatever reasons) not to prosecute” the consultant (para. 116). More recently, in the set-aside proceeding of Congo v. Commisimpex, the Paris Court of Appeal held that Congo’s mere allegations of a general climate of corruption within the government administration, without indicating the persons likely to be involved in the corruption or prosecuting the alleged beneficiaries of the corruption, were an insufficient basis to set aside the award against Congo. Notwithstanding the comments in these decisions regarding the State’s failure to prosecute, the State’s failure to prosecute was not dispositive in either case, because neither the Wena tribunal nor the Paris Court of Appeal was presented with persuasive evidence of corruption. As the Wena tribunal explained, Egypt bore “the burden of proving such an affirmative defense” of corruption, and had “failed to present any evidence that would refute Wena’s evidence that the [consulting agreement] was a legitimate agreement. . . .” (para. 117). Read the rest of this entry…

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The Fogmachine of War: A Comment on the Report “Clearing the Fog of Law”

Published on April 13, 2015        Author: 

In the Policy Exchange report Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, Richard Ekins, Jonathan Morgan, and Tom Tugendhat criticize the European Court of Human Rights at Strasbourg for not disapplying the rights of the European Convention on Human Rights (ECHR) in cases where British troops act abroad. Together the authors have written a report which impresses with its eloquence and conviction, but ultimately leaves something to be desired in terms of how it treats the sources and the method of international law.

The authors focus their attention on what they refer to as ‘a new form of judicial imperialism’(p 7), ‘the cavalier expansion’ of the ECHR (p 46), a development which, in their view, has at least two problematic aspects. First, the provisions of the ECHR, a convention which in their view was meant to be applicable only in time of peace, have been allowed to apply in war. Second, not only has the ECHR, in their view, illegitimately been allowed to apply; it ‘is supplanting and undermining the older and far more suitable body of International Humanitarian Law’ (p 9), for this purpose the four Geneva Conventions.

According to the report, the Strasbourg Court is wrong to have applied the ECHR to the actions of British troops acting abroad, and the Strasbourg Court is wrong to have let the ECHR supplant the rules of international humanitarian law. Such developments, the authors say, are not ‘properly supported by sound legal method’ but rather ‘an instance of over-bearing judicial power’ (p 9), the report arguing in essence that the courts have discarded what the authors term the traditional interpretation of the ECHR which could be summed up as ‘the general understanding that the ECHR did not apply extraterritorially’ (p 11& 46).

Read the rest of this entry…

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Announcements: CfA, UN Special Rapporteur on Privacy; ICL/IHL/Human Rights Summer Session (Salzburg); Course on Conduct of Peace Support Operations (Sanremo)

Published on April 11, 2015        Author: 
1.  Call for Applicants for UN Special Rapporteur on the Right to Privacy. At the 29th session of the UN Human Rights Council, 15 June – 3 July 2015, the President of the Council will appoint the Special Rapporteur on the right to privacy, the new special procedure created by the Council in March. The deadline for receipt of nominations by OHCHR is 30 April 2015. All applicants must submit an application for the mandate through the OHCHR online application system available here. Privacy International, together with Access, the American Civil Liberties Union, Amnesty International, Article 19, the Association for Progressive Communications, Electronic Frontier Foundation, and the International Commission of Jurists, have developed an outline of qualifications that we believe are relevant to the selection and appointment of the Special Rapporteur on the right to privacy. The checklist is aimed to support governments, NGOs, academics, relevant professional networks, national human rights institutions and others in the identification of and outreach to highly qualified and independent candidates.

2.  Seventeenth Summer Session of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law. The Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS)welcomes applications for its Seventeenth Summer Session, Sunday 2 to Wednesday 12 August 2015. SLS is an intensive summer course founded by Prof. Otto Triffterer at the University of Salzburg in 1999. It is targeted at advanced law students, young scholars, and professionals with experience in international criminal law who wish to deepen their knowledge and engage in academic discourse. Under the title ‘Strategies to Narrow the Impunity Gap: Improving the Effectiveness of International Criminal Law and Exploring Alternative Forms of Accountability’, this year’s session will critically assess the notion of an ‘international criminal justice system’ and will glimpse beyond the framework of criminal justice for inclusive strategies to fight impunity. SLS 2015 faculty includes Prof. Olympia Bekou (University of Nottingham), Mr. Gilbert Bitti (ICC), Ms. Eleni Chaitidou (ICC), Prof. Roger Clark (Rutgers University), Dr. David Donat Cattin (PGA/New York University), Prof. Benjamin Ferencz (Einsatzgruppen trial), Prof. Don Ferencz (Global Institute for the Prevention of Aggression/Middlesex University), Mr. Orchlon Narantsetseg (ICC), Dr. Rod Rastan (ICC), Prof. Darryl Robinson (Queen’s University), Prof. William A. Schabas (Middlesex University/Leiden University), Mr. David Tolbert (ICTJ), Mr. Thomas Unger (Geneva Academy), Dr. Astrid Reisinger Coracini (University of Salzburg). Detailed information on the academic programme and the application procedure is available here.

3.  Course on Conduct of Peace Support Operations, 15 June-19 July 2015 Sanremo, Italy. Registration is now open for the International Institute of Humanitarian Law’s specialized course on the Conduct of Peace Support Operations (PSO). The aim of this course is to prepare potential civilian and military staff and augmentees for PSOs by providing an understanding of the legal issues affecting their deployment and mission accomplishment. Participants will examine and discuss the wide ranging legal issues underpinning PSO mandates affecting mission design, and those legal aspects which will shape and govern the deployed force and mission. Seminar topics include the legal bases for PSO, the applicability of human rights and LOAC, criminal responsibility and the legal implications of detention, cyber activities, and emerging technologies on PSO.  For more information see here.
 
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New EJIL:Live!: Interview with Jan Klabbers on International Organizations

Published on April 8, 2015        Author: 

A new episode of EJIL:Live! is now available online. Episode 5 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler and Professor Jan Klabbers of the University of Helsinki, whose article “The Transformation of International Organizations Law”, appears in Volume 26, Issue 1. The article, the first in a new series called The EJIL Foreword, magisterially analyses the current state of international organizations. The interview provides background to the article and probes the issues raised by it in further depth.

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