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The Peremptory Right of Women to Life: Why El Salvador Should Authorise Abortion for Women Who Face a Substantial Risk of Death

Published on May 16, 2013        Author: 

Dr. Theodore Christakis is Professor of International Law at the University Grenoble-Alpes (France). He is Director of the Centre for International Security and European Studies (CESICE).

The Supreme Court and the authorities of El Salvador have the obligation under International Law to authorize a woman to receive a life-saving medical abortion despite the anachronistic total ban on abortion in El Salvador’s law.

“Beatriz” is the pseudonym (intended to protect her identity) of a 22-year-old woman in El Salvador who is now more than five months pregnant. The foetus she is carrying is missing a large part of its brain and skull, which means almost certain death either before or immediately after birth. The mother has been diagnosed with a number of severe illnesses, including lupus and kidney disease, and doctors say she faces a substantial risk of dying if she continues with the pregnancy, but have not yet treated her because they fear that if they end the pregnancy they might be prosecuted under the country’s total ban on abortion. Indeed, under these laws if the woman gets abortion she risks up to 50 years in prison and the doctors who perform the act up to 12! It is now almost two months since the doctors requested permission to provide Beatriz with the treatment she needs, but El Salvador’s Attorney General has said that the country’s Penal Code will be applied if Beatriz gets an abortion. The case has been brought to the country’s Supreme Court, but it has stalled for weeks. A hearing was finally expected to take place yesterday (15 May), but it was unclear whether the court will issue a final decision immediately. With each day that passes, the pregnancy poses more danger.

The case became “internationalized” on April 29, 2013, when the Inter-American Commission on Human Rights granted protection measures in order “to protect the life, personal integrity and health of “B”, asking the State of El Salvador to authorize this therapeutic abortion within 72 hours of the Commission’s letter. More than two weeks later though, El Salvador has failed to comply.

Read the rest of this entry…

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Filed under: EJIL Analysis, Human Rights, Right to Life, Right To Privacy/Family Life
 

Call for Papers: Wisconsin International Law Journal Annual Symposium, April 4-5, 2014

Published on May 16, 2013        Author: 

Internationally acclaimed women scholars and advanced PhD candidates are invited to the second conference on the Creation of International Law, to be hosted by the University of Wisconsin on April 4-5, 2014 as part of its Wisconsin International Law Journal annual symposium. The intention is to continue and expand the network of women scholars and practitioners that was launched in 2009 in Norway to support their engagement in public international law.  The theme of the second conference is: Exploring the International Law Components of Peace. The pursuit of peace remains a global challenge and there is a need for reflection as to how the current international public law institutional and normative structure functions and what are the gaps? Call for papers and more details here.

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Filed under: EJIL Reports
 

Court between A Rock and a Hard Place: Comoros Refers Israel’s Raid on Gaza Flotilla to the ICC

Published on May 15, 2013        Author: 

Comoros has referred the action of Israeli troops in boarding the flotilla headed to Gaza on 31 May 2010 to the International Criminal Court. The ICC Prosecutor has announced that she is opening a preliminary examination of the situation and it now remains to be seen whether this will lead to a proper investigation and perhaps even charges being brought by the ICC against Israeli troops or officials. Israel, of course, is not a party to the Statute of the ICC, but this does not itself mean that the ICC cannot exercise jurisdiction over Israeli nationals or officials (see my 2003 article on this issue). Comoros is a party to the Statute and the main vessel on which the Israeli actions took place, the Mavi Marmara, was registered in Comoros. Under Article 12(2) of the ICC Statute, the Court may exercise jurisdiction not only to nationals of State’s party to the ICC statute but also, crucially, where:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft [is a party to the Statute];

Since the Israeli action took place on a vessel that is registered in a State party to the ICC Statute, the action is within the jurisdiction of the ICC. Comoros also points out that a second of the six vessels in the Gaza flotilla boarded on 31 May 2010 – the M.V. Eleflheri Mesogios or Sofia - is registered in Greece which is also a party to the ICC. In addition, Comoros says that a further vessel boarded by Israel a week later – the MV Rachel Corrie- is registered in Cambodia, which is also an ICC State party. It must also be taken as referring the incident regarding those other vessels to the ICC (assuming there were any incidents committed on board those vessels that would amount to crimes within the jurisdiction of the ICC). It is worth noting that a State party is entitled to refer any situation involving crimes within the jurisdiction of the Court to the prosecutor. Thus Comoros is entitled to refer a matter that did not occur within its territory to the ICC.

Israel’s actions with regard to the flotilla have already been the subject of investigations by Israel, Turkey and by two UN bodies. The allegations that actions on board the vessels were contrary to international law finds support in the reports by the UN commissions  (see Yuval Shany’s discussion of Human Rights Council’s Fact Finding Commission here,  and Douglas Guilfoyle , Tamar Feldman and Marko’s discussion of the Palmer Report here, here here). However Israel’s Turkel Report comes to the opposite conclusion (see discussion by Amichai Cohen and Yuval Shany here). It is to be noted that the referral by Comoros comes just days after it was announced that Israel and Turkey were close to reaching an agreement on compensation for the Turkish victims of the incident.

The referral by Comoros is significant for the ICC for a number of reasons and as outlined below is likely to test political support for the Court. While action by the Court against Israel is likely to prove unpopular in some circles, failure by the Court to act in a situation involving Israel, and perhaps more importantly failure to act on a referral by an African State against a non-African State, will perhaps prove even more unpopular in a constituency crucial to the ICC.

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Filed under: EJIL Analysis
 

Calls for Papers: Irish Yearbook of International Law; Hellenic Branch of the ILA

Published on May 11, 2013        Author: 

1) The editors of the Irish Yearbook of International Law welcome submissions for publication in the next volume of the Yearbook. Articles should not be published or under consideration for publication elsewhere. An annual, peer reviewed publication, the Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer pieces will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words. Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Siobhán Mullally (s.mullally {at} ucc(.)ie) and Fiona de Londras (fiona.de-londras {at} durham.ac(.)uk) by 21 June 2013. Anyone wishing to review a particular title in the Yearbook’s book review section are also invited to contact the editors. Further information on the Yearbook (including style guide) is available at the IYIL website.

2) The Hellenic Branch of the ILA is holding a regional conference in Cape Sounion, Athens, on 29-31 August 2013. A call for papers has been circulated and is available here along with registration details and other information.

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Filed under: EJIL Reports
 

EU Legal Integration Survey

Published on May 10, 2013        Author: 

As part of the Schumpeter CONREASON Project, based at the Max Planck Institute for Comparative Public Law and International Law, an online expert survey is being conducted on judicial attitudes towards European law and European integration in the European Union. The survey focuses on supreme and constitutional courts and their doctrinal response to the legal integration process. The survey targets all those who are potential experts in the EU legal integration process: academics, judges, law students, etc.

The online questionnaire takes only a few minutes to complete. You can choose on which court you wish to report and even take several surveys in case you want to report on more than one court. To take the survey just click on the link below, which will take you to the survey page of the CONREASON Project Website:

http://www.conreasonproject.com/expert-survey.html

 Please feel free to contact the project team (conreason {at} mpil(.)de) for questions and remarks regarding the questionnaire. Feedback is welcome.

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Filed under: EJIL Reports
 

ICJ Call for Papers

Published on May 9, 2013        Author: 

The International Court of Justice has issued a call for papers for a panel at its conference on the centenary of the Peace Palace in September. This is probably a first for the Court (at least I can’t remember it issuing a call for papers before), and the selection of the papers will be made by a panel of three of the Court’s judges. Appropriately enough, the Court seems to be accepting submissions only by snail mail. Details here.

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Filed under: Conference, EJIL Reports
 

Pluricourts Call for Papers – Legitimacy and Effectiveness of International Criminal Courts

Published on May 9, 2013        Author: 

This conference seeks papers pursuing empirical, normative, comparative or theoretical approaches to the study of ICTs, and welcomes contributions from law and social science, including philosophy, sociology, criminology, psychology and history. Details here.

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Filed under: Conference, EJIL Reports
 

Call for Papers: ILA Study Group on Domestic Courts and International Law

Published on May 5, 2013        Author: 

The ILA Study Group on ‘Principles on the Engagement of Domestic Courts with International Law’ has issued a call for papers. Those selected will be invited to participate in the discussion of their papers by the Study Group, and will be potentially included in a relevant publication. The deadline for submission of proposals is the end of May. Full details can be found on the Study Group’s website, and the call may be directly downloaded (pdf) here.

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Filed under: Conference, International Law and Domestic Law
 

Regulating Resort to Force: A Response and Thanks to Corten

Published on May 2, 2013        Author: 

Matthew Waxman is Professor of Law at Columbia Law School, New York.

In the latest issue of EJIL, I write about doctrinal form and jus ad bellum in ‘Regulating Resort to Force: Form and Substance of the UN Charter Regime’, 24 EJIL (2013) 151. Much of the legal debate in this area – among states, scholars, and other international actors – takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions: are they too broad or narrow; too permissive or restrictive?  In this article, I argue that these debates also sometimes explicitly or implicitly include preferences regarding doctrinal form, by which I mean modes of argumentation and analysis through which facts are assessed in relation to legal directives.

Adherents to one orientation, whom I term ‘Bright-Liners’, generally favour governing states’ legal authority to use force unilaterallyby clear and rigid rules that admit little case by case discretion. Adherents to another orientation, whom I term ‘Balancers’, generally believe that the legality of unilateral resort to force should be judged by objective but flexible standards that call for weighing contextual factors, thereby vesting in states some discretion to account for competing values.

 The main point of my paper is that substantive preferences – narrow versus broad international legal authority to use force – often go hand in hand with doctrinal form preferences (i.e. those favouring restrictive authority to use force generally prefer bright-line rules), but that they need not.  By prising apart the substantive debate from the debate about doctrinal form, and analyzing some of the reasons why one form might be better than another, I expose some conflicting but often-buried assumptions about how international law works or fails in this area, and I aim to open up some underappreciated ways to think about legal reform. Read the rest of this entry…

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Filed under: Armed Conflict, EJIL, EJIL: Debate!, Use of Force
 

Stepping Up the Pace of Ratifications of the ICC Amendments on the Crime of Aggression : Where do we stand now?

Published on May 1, 2013        Author: 

President Khama of Botswana (right), Dr Athaliah Molokomme, Attorney General of Botswana (left), Mr Khama, Minister of Defence of Botswana (centre).

In the summer of 2010, the Assembly of States Parties to the Statute of the International Criminal Court, meeting in Kampala, Uganda, adopted amendments to the ICC Statute which define the crime of aggression and provide for the jurisdiction of the ICC over aggression. Under those amendments, the ICC will only be able to exercise jurisdiction over the crime of aggression once 30 States have ratified or accepted the amendments. Furthermore, the Court may not exercise jurisdiction over aggression until 1 January 2017. The amendment provides that there will also be the need for a further decision of the Assembly of States Parties to the ICC Statute to activate the jurisdiction of the Court over aggression. Unlike the Rome Statute of the ICC, ratifications of the Kampala amendments seemed to be going slowly with only 3 states (Liechtenstein, Samoa and Trinidad & Tobago) ratifying the amendments by the end of 2012. However, the pace of ratifications seems set to pick up in 2013. Luxembourg ratified the aggression amendment in January and Estonia did the same in March. In addition, two states - Germany and Botswana - have now completed their domestic processes for ratification and at least one other (Uruguay) is well on the way. The German parliament adopted its Act of Ratification of the Kampala Amendments at the end of February and should deposit its instrument of ratification soon. On April 15, the President of Botswana signed Botswana’s instrument of ratification of the Kampala amendment at a workshop held in Botswana that I was speaking at. He signed the instrument of ratification at a dramatic opening session of a workshop held for African governments on ratification and implementation of the crime of aggression. [On a personal note, I had never seen an instrument of ratification being signed before and I still have not as I arrived at the workshop after the opening session! The workshop was organized by the Government of Liechtenstein and the Global Institute for the Prevention of the Crime of Aggression which has a great website that contains many resources on the crime of aggression.] On April 10, one house of the Uruguayan Parliament (the Chamber of Deputies) approved the bill on ratification of the Kampala Amendments unanimously and the bill is set to go to Uruguayan Senate in the coming weeks (see this report by the Parliamentarians for Global Action).

For the court to be able to exercise jurisdiction over aggression by the beginning of 2017, there will actually need to be 30 ratifications by the beginning of 2016 as the amendments only take effect for each State party one year after the instrument of ratification is deposited. There seems to be a possibility that this number will be reached but that is not so clear. Read the rest of this entry…

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Filed under: EJIL Analysis, International Criminal Court, Use of Force