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New Issue of EJIL (Vol. 25: No. 2) Out This Week

Published on July 28, 2014        Author: 

The latest issue of the European Journal of International Law will be published this Friday. Over the course of the week, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will then appear in the Editorial in the upcoming issue. Here is the Table of Contents:

Editorial 

Fateful Elections? Investing in the Future of Europe; Masthead Changes; In this Issue

EJIL: Keynote 

Anne Orford, Scientific Reason and the Discipline of International Law

Articles

Sergio Puig, Social Capital in the Arbitration Market

Oliver Diggelmann and Tilmann Altwicker, How is Progress Constructed in International Legal Scholarship?

Grégoire Mallard, Crafting the Nuclear Regime Complex (1950-1975): Dynamics of Harmonization of Opaque Treaty Rules

 New Voices: A Selection from the Second Annual Junior Faculty Forum for International Law

Moria Paz, The Tower of Babel: Human Rights and the Paradox of Language

Arnulf Becker Lorca, Petitioning the International: A ‘Pre-history’ of Self-Determination

Roaming Charges: Places of Social and Financial Crisis: Dublin 2014

 EJIL: Debate!

László Blutman, Conceptual Confusion and Methodological Deficiencies: Some Ways That Theories on Customary International Law Fail

Andrew Guzman and Jerome Hsiang, Conceptual Confusion and Methodological Deficiencies: A Reply to László Blutman

 Critical Review of International Jurisprudence

Loveday Hodson, Women’s Rights and the Periphery: CEDAW’s Optional Protocol

 Critical Review of International Governance

Wolfgang Hoffmann-Riem, The Venice Commission of the European Council – Standards and Impact

Book Reviews

Mark Mazower. Governing the World. The History of an Idea (Jochen von Bernstorff)

Monica García-Salmones Rovira. The Project of Positivism in International Law (David Roth-Isigkeit)

Carlo Focarelli, International Law as Social Construct. The Struggle for Global Justice (Lorenzo Gradoni)

Philipp Dann. The Law of Development Cooperation: A Comparative Analysis of the World Bank, the EU and Germany(Giedre Jokubauskaite)

E. Papastavridis. The Interception of Vessels on the High Seas, Contemporary Challenges to the Legal Order of the Oceans (Seline Trevisanut)

Kjetil Mujezinović Larsen, Camilla Guldahl Cooper and Gro Nystuen (eds).  Searching for a ‘Principle of Humanity’ in International Humanitarian Law (Catriona H. Cairns)

Morten Bergsmo, LING Yan (eds). State Sovereignty and International Criminal Law (Alexandre Skander Galand)

 Briefly Noted

Kevin Jon Heller and Gerry Simpson (eds). The Hidden Histories of War Crimes Trials (Milan Kuhli)

 The Last Page

Kim Lockwood, The Waiting Room

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The ECtHR Finds the US Guilty of Torture – As an Indispensable Third Party?

Published on July 28, 2014        Author: 

The recent rulings by the European Court of Human Rights in two cases concerning secret detention in Poland are remarkable, not the least because their bold approach in respect of human rights violations committed by a third party, in this case the United States of America. Of course, the US is not a party to the European Convention on Human Rights and was not a participant in the proceedings. In both cases Poland was found to have violated a number of ECHR provisions, including articles 3 and 5, by hosting a CIA black site and by otherwise participating in the US programme of secret detention and extraordinary renditions.

In paragraph 516 of Al Nashiri v. Poland (Application no. 28761/11, Chamber Judgment of 24 July 2014), the Court concludes:

In view of the foregoing, the Court concludes that the treatment to which the applicant was subjected by the CIA during his detention in Poland at the relevant time amounted to torture within the meaning of Article 3 of the Convention (…).

The same conclusion appears in paragraph 511 of Husayn (Abu Zubaydah) v. Poland (Application no. 7511/13, Chamber Judgment of 24 July 2014). Immediately after the finding on torture by the US, the Court makes its finding in respect of Poland (Al Nashiri para. 517).:

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory …

One may ask whether the ECtHR through its formulations in paras. 516-517 created a situation where the US was an indispensable third party, to the effect that the finding in respect of the lawfulness of conduct by the US was a prerequisite for a conclusion in relation to Poland, even if the Court obviously did not consider the US participation in the proceedings (or consent to its jurisdiction) to be indispensable.

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Announcements: Job Openings at Max Planck Luxembourg, Law of the Sea Conference in Ghent, Call for Rapporteurs for Refugee Law Conference

Published on July 26, 2014        Author: 

1.  The Max Planck Institute Luxembourg announces openings for Research Fellows and Senior Research Fellows in public international law and procedural law. Research Fellow (PhD candidate) (m/f): The Institute would like to appoint highly qualified candidates for 5 open positions as “Research Fellow” with Professor Hélène Ruiz Fabri. The research fellow will conduct legal research (contribution to common research projects and own publications), particularly in the field of public international law and international procedural law (including European law and all kinds of international arbitration). Candidates are expected to write their own dissertation (PhD thesis) in one of the aforementioned fields of research, while participating in in-depth knowledge exchange and support among other research fellows. Details available hereSenior Research Fellow (Postdoc) (m/f): The Institute would like to appoint highly qualified candidates for 2 open positions as “Senior Research Fellow” with Professor Hélène Ruiz Fabri. The senior research fellow will conduct postdoctoral research (own publications and contribution to common research projects), particularly in the field of public international law and international procedural law (including European law and all kinds of international arbitration), while playing a central role in undertaking and developing team-driven projects within the Institute and in partnership with international collaborators. Details available here.

 2.  On 13-14 November 2014, Ghent University (UGent) will be hosting an international two-day conference at the occasion  of the twentieth anniversary of the entry into force of the UN Convention on the Law of the Sea. The conference, organized in partnership with the Vrije Universiteit Brussel (VUB), Université catholique de Louvain – Mons (UCL-Mons) and the Université libre de Bruxelles, will pause at the success of the Montego Bay Convention in governing the use of the oceans. At the same time, it will look ahead and examine to what extent the Convention is properly equipped to withstand the various challenges ahead, including, for instance, competing territorial and maritime claims in the South and East China Seas and in the Arctic, the fight against piracy, future exploitation of the deep sea bed, ocean pollution, the increased recourse to the UNCLOS dispute settlement regime, etc. The conference will bring together expert scholars from within and without Europe, as well as practitioners and civil servants (e.g., ITLOS, International Seabed Authority, FAO), to broach the underlying issues from a legal as well as a more policy-oriented perspective. Four different panels will respectively address the importance of UNCLOS for the maintenance of international peace and security; its importance for the global economy; for the protection of the marine environment, and; the Convention’s compulsory dispute settlement mechanism. A keynote lecture will tackle the United States position vis-à-vis the Convention. Detailed information (including programme, venue and registration details) can be found on the conference website.

3.  Call for rapporteurs for the (2nd) Symposium on the Protection of People Fleeing Armed Conflict. The Law Faculty of the University of Luxembourg and the UNHCR are seeking rapporteurs for the (2nd) Symposium on the Protection of People Fleeing Armed Conflict, which will take place on 20 October 2014 in Luxembourg.  The subject of the symposium will be the legal protection of people fleeing armed conflict and other situations of violence, examined in the context of the UNHCR’s new Guidelines for the Protection of People Fleeing Violence and Conflict Across Borders, and recent developments in the case law of European regional and national courts. Rapporteurs will assist the editor of the conference report.  The main responsibilities are the following:

  • Write summaries of selected Symposium sessions
  • Assist the facilitator during the Symposium to ensure the event runs smoothly.

We invite junior scholars (PhDs, post-docs, and fellows) with research interests in the field to submit their CVs (in English) and a sample of their work (ideally on refugee law) to matthew.happold {at} uni(.)lu before 31 August 2014. The Fonds National de la Recherche – Luxembourg will cover the costs of travel and accommodation for the rapporteurs.

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The ECtHR and the Regulation of Transnational Surrogacy Agreements

Published on July 25, 2014        Author: 

ivana6-1Ivana Isailović is a post-doctoral researcher at the Perelman Center for Legal Philosophy (Université libre de Bruxelles) and is affiliated with the IAP, Human Rights Integration Project.

In a number of recent cases, French courts refused to give effect to US court decisions that recognized French intending parents as legal parents of children born through surrogacy agreements and to inscribe the foreign filiation into the French civil status registry. In the decisions in Mennesson v. France and Labassee v. France, the European Court of Human Rights (ECtHR) ruled that those refusals violated children’s right to private and family life, protected by article 8 of the European Convention on Human Rights. It dismissed claims based on the breach of parent’s right to private and family life and on violations of article 14 (non-discrimination), article 6-1 (right to a fair trial) and article 12 (right to marry).

This is the first time the ECtHR has considered the question of transnational surrogacy. The decisions tackle some of the vexing issues related to the regulation of the booming global surrogacy market. These issues include ethical and political concerns related to the commodification of the body. Also in question are the definitions of citizenship and parenthood in a context in which the differences between domestic regimes illustrate a variety of cultural and political understandings of filiation and parenthood. This post focuses on the latter set of issues and the legal uncertainties they create.

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The Downing of MH17 and the Potential Involvement of International Courts

Published on July 22, 2014        Author: 

I do not at all want to trivialize the human tragedy that is the downing of Malaysia Airlines flight MH17 over Ukraine last week, nor for that matter the parallel unfolding tragedies on the ground in Ukraine and in Israel and Gaza, by engaging in some premature lawyerly analysis. But, in reading on the unfolding story of the aircraft’s demise, I nonetheless couldn’t help but think how that story is very likely to find its epilogue in an international courtroom. The facts of MH17′s destruction are obviously far from clear, and are not going to become much clearer in the near future, but the number of possible scenarios is limited – the aircraft was (most likely) destroyed by Ukrainian rebels with Russian-supplied weapons, or (less likely) by either Ukranian or Russian state agents (who may have acted ultra vires). And not only did the downing of MH17 deepen a major existing international crisis, but it directly affected a number of states other than Ukraine and Russia, such as Malaysia and the Netherlands, not to mention the families of the victims themselves. This raises both the incentives and the opportunities for international litigation, in addition to whatever proceedings may ensue before domestic courts or international fact-finding missions.

Consider, first, the possibility that a case or cases regarding MH17 might end up before the European Court of Human Rights. Both Russia and Ukraine are of course parties to the ECHR, and readers will recall that one of the first acts of the new government in Kiev in response to the Crimea crisis was to lodge an inter-state application against Russia in Strasbourg, on which the Court ordered provisional measures. It is perfectly possible for the downing of MH17 to be an issue in the existing or a new inter-state case, or indeed one brought by a third state, such as the Netherlands, since the majority of the victims had Dutch nationality. And obviously the families of the victims may also bring individual applications against either Russia or Ukraine.

In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.

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From Targeted Sanctions to Targeted Settlements: International Law-Making Through Effective Means

Published on July 22, 2014        Author: 

2014.07.20.MarijaMarija Đorđeska, LL.M., is a Thomas Buergenthal Scholar and an S.J.D. Candidate at the George Washington University Law School, in Washington D.C.

The U.S. Office of Foreign Assets Control of the Department of Treasury (OFAC) has again shocked the international financial community with a recent settlement with BNP Paribas, France’s largest financial institution. BNP Paribas was accused of violating U.S. sanctions against Iran, Sudan, Burma and Cuba from 2005 to 2012. For $8.9 billion in compensation – the priciest settlement to date – OFAC pardoned BNP Paribas and its subsidiaries from their civil liability under U.S. law. (Settlement Agreement [30], see also Enforcement Information for June 30, 2014).

OFAC is aggressively and effectively applying U.S. sanctions law to foreign institutions incorporated and doing business abroad, without taking into consideration foreign domestic legal regimes or international standards. French President François Hollande expressed his disapproval of the penalty imposed on BNP Paribas. The settlement should also cause concern among European and international lawyers, as BNP Paribas is the ninth European financial institution to be sanctioned since 2006 for processing funds for entities subject to U.S. sanctions. By threatening to cut off foreign financial institutions from the U.S. market, OFAC precludes these financial institutions from publicly and transparently arguing their case in legal proceedings (Settlement Agreement [31]). OFAC is establishing a precedent of a new, efficient, and not yet legal method for asserting U.S. laws abroad, bypassing the traditional territoriality principle of jurisdiction.

In the documents that are publicly available, OFAC does not mention any legal grounds on which it claims jurisdiction, leaving it unclear on what basis the U.S. can sanction transactions initiated abroad by foreign entities or the clearing of US dollars outside the U.S. (Factual Statement [34]) or regulate foreign exchange transactions (Settlement Agreement [12, 13]). Because the settlement negotiations were not made public, and BNP Paribas also waived its right to “any possible legal objection,” (Settlement Agreement [31]) the substantive public debate on the issue is necessarily limited.

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EJIL: Live! Special Episode on the Serdar Mohammed Judgment

Published on July 21, 2014        Author: 

In additional to the regular episodes of our EJIL: Live! podcast, which follow each issue of the Journal, we will also publish special episodes which deal with recent events or current issues. The first such episode is now live – a conversation between Guy Sinclair, Dapo Akande and me on the Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) judgment, dealing with various issues regarding the lawfulness under the ECHR of the preventive detention of suspected terrorists in Afghanistan. For our previous coverage of that case, see here, here, here and here.

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Announcement: Workshop on Procedural Fairness

Published on July 20, 2014        Author: 

The Surrey International Law Centre of the University of Surrey School of Law, with the support of the Institute of Advanced Studies, the McCoubrey Centre of the University of Hull and the British Institute of International and Comparative Law, will host a two-day workshop on the identification of core standards of procedural fairness before international courts and tribunals. All interested persons are warmly invited to participate in the workshop and should register by 31 August. Full details, including the workshop programme, may be accessed at the workshop website.

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OHCHR Publishes Report on Surveillance and Privacy in the Digital Age

Published on July 18, 2014        Author: 

Readers will recall that in its resolution on the right to privacy in the digital age the UN General Assembly had requested the Office of the High Commissioner for Human Rights to prepare a report for the next GA session on the various issues raised by mass electronic surveillance and the human right to privacy (see here for our previous coverage). An advance edited version of that report (A/HRC/27/37) is now available here. The report is rich, thoughtful and very much pro-privacy in the surveillance context, albeit not in a blind, fundamentalist way. It reaffirms that the right to privacy, as set out in Article 17 ICCPR or Article 8 ECHR, provides a framework within which the legality of surveillance measures needs to be assessed. While it acknowledges the legitimate governmental interests that surveillance may serve, it finds the existing institutional and legal arrangements in many states wanting and in need of further study and reform. Here are some of the highlights:

- It is important to consider linkages with other possible human rights violations, e.g. the collection of intelligence through surveillance that is later used for an unlawful targeted killing (para. 14).

- Interferences with the privacy of electronic communication cannot be justified by reference to some supposedly voluntary surrender of privacy on the Internet by individual users (para. 18).

- Collection of communications metadata can be just as bad in terms of privacy interference as the collection of the content of the communication (para. 19).

- Because of the chilling effect of surveillance: ‘The very existence of a mass surveillance programme thus creates an interference with privacy.’ (para. 20).

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Transatlantic Roundtable on Challenges to IHL

Published on July 16, 2014        Author: 

This week, leading academics and practitioners from the US, UK, continental Europe, and Israel will gather at the University of Oxford to discuss a range of IHL-related issues – from addressing violations of the rules of war to military ops that go beyond the traditional battlefield.  The two-day roundtable discussion will focus on transatlantic issues relating to international humanitarian law (IHL). Civilian and military participants from Canada, the United States, the United Kingdom, continental Europe and Israel will address a variety of IHL issues of concern to their own States, as well as relating to cooperation between States. The idea is to share ideas across borders in order to exchange approaches to various IHL and national security issues and advance the dialogue on these issues. The roundtable is organized by the International Committee of the Red Cross’ delegations in Washington, D.C. and London, the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations , the Robert S. Strauss Center for International Security and Law at the University of Texas, and the South Texas College of Law.

Participants will discuss the following topics:

- Updates in the overlap between IHL and IHRL

What have the major updates in the interplay between IHL and International Human Rights Law (IHRL) been over the past year? Has IHRL gone too far into influencing IHL? What are the effects of this interplay?

 - Accountability for violations of IHL

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