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Two Wrongs Don’t Make a Right: Ukraine Retaliates for Savchenko in Violation of IHL

Published on September 1, 2015        Author: 

In our post concerning Ukrainian military pilot Nadiya Savchenko, which can be found here, Anne Quintin and I addressed the International Humanitarian Law (IHL) implications of Russia’s detention and prosecution of the officer, whose ongoing murder trial is postponed pending the outcome of a change of venue motion by the defence. Meanwhile, Ukraine has thrown a judicial rock of its own by detaining two Russian officers – Evgeny Erofeev and Aleksandr Aleksandrov – who face charges of terrorism and aggression in Kiev in the coming weeks. In this post, I would like to identify the contradictions of Ukraine’s positions with respect to the two situations, as well as its concomitant IHL violations, and to address the possibility of reconciling Ukraine’s rhetoric and practice with the rules of IHL.

On or about May 16 2015, two wounded fighters who identified themselves as officers of the Russian army were captured by Ukraine’s Armed Forces (UAF) following a firefight near Lugansk that resulted in the death of one Ukrainian soldier. The detainees were immediately treated and subsequently evacuated to Kiev, where they remain hospitalized to this day. Several days after their capture, both were indicted under Article 258 of the Ukrainian Penal Code (UPC) for their participation in the commission of a terrorist act, organized and carried out by the Lugansk People’s Republic (LPR), resulting in death. Notably, there appears to be no evidence, or allegations, that the Ukrainian soldier was killed in violation of IHL. Most recently, a charge of aggression under Article 437 of the UPC was added to the terrorism charge.

On May 21, the Security Services of Ukraine confirmed that Erofeev was captain, and Aleksandrov sergeant, of the 3rd Brigade of the Special Forces of the Military Intelligence Directorate of the Main Staff of the Armed Forces of the Russian Federation (Russian abbreviation ‘GRU’), with its base in Tolyatti, Russia. Numerous video and newspaper interviews given by the officers revealed that: they were so-called ‘contracted’ (kontraktniki) Special Forces of the GRU deployed to Ukraine on 6 March 2015 in the battalion numbering 220 soldiers; they were dispatched on orders from their superiors who promised double their usual pay; that on the day of their capture their unit, comprised entirely of Russian troops, was stationed near Lugansk and was spotted by the UAF during a reconnaissance mission, prompting a gunfire exchange. Against this evidence, Russia has not relented in its denials of the involvement of Russia’s armed forces in the fighting in Donbass. In fact, on July 21, the Ministry of Defense of Russia declared that even though the two officers underwent military service in Russia, the events in Ukraine linked to them ‘took place after their discharge from military service and were not connected to it.’ On some accounts, the relatives of the accused have confirmed that the soldiers were indeed discharged. Consistent with this storyline, the LPR has maintained that Erofeev and Alexandrov are members of its own police force with no affiliation to the Russian armed forces. Read the rest of this entry…

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A Question on Spying and Legal Ethics

Published on September 1, 2015        Author: 

In the wake of the scandal regarding the Croatia/Slovenia arbitration, but also the spats between Australia and East Timor, I have been left wondering with an ethical question: say you are counsel for one of the parties in a case before the ICJ or in an arbitration (but you are not the relevant government’s employee). Imagine if your client comes to you with a document that they could only have obtained by spying on the other party in the proceedings – say a draft of the opposing counsel’s pleadings, or a particularly important piece of undisclosed evidence in the case. Would it be ethical for you to rely on such a document? Would you, say, read your opponent’s draft pleadings? Would it make any difference whether the spying is done against the adversary state or against your opposing counsel directly?

NB: I’m not interested in how the court or tribunal would decide on any issue of admissibility; all I care about is the ethical dimension. For the avoidance of doubt, this is not a dilemma I’m currently facing or ever had to face. But my impression is that this sort of stuff must happen occasionally. Having been involved in some interstate cases, I know that some parties take reasonable security measures (e.g. send drafts or documents only in an encrypted format), while others take virtually none. In this post-Snowden era, such spying would seem trivially easy for many intelligence agencies, especially if no dedicated security measures are in place – the Slovenian arbitrator and agent providing an abject lesson.

Comments from readers much appreciated; anonymous comments with regard to this particular post are welcome.

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Data Protection in International Organizations and the New UNHCR Data Protection Policy: Light at the End of the Tunnel?

Published on August 31, 2015        Author: 

In May 2015 the United Nations High Commissioner for Refugees (UNHCR) published its Policy on the Protection of Personal Data of Persons of Concern to UNHCR (Data Protection Policy). The Policy may seem to be merely an internal guidance document addressed to the staff members of an international organization. However, as a subsidiary organ of the United Nations, established by the General Assembly pursuant to Article 22 of the UN Charter, working for millions of refugees and with thousands of other organizations active in the field of protection and assistance, UNHCR bears a certain responsibility when it sets internal standards which inevitably also have an external impact. Moreover, the Policy highlights the growing importance of data protection in international law, particularly for the work of international organizations.

Against this background, our blog addresses some interesting underlying legal issues of public international law raised by the Policy. In particular, it discusses the relevance of data protection to the work of international organizations, including UN agencies, and what level of data protection is appropriate and required for international organizations in general and UNHCR in particular, taking into account the humanitarian context in which the organization often operates. Read the rest of this entry…

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The Human Rights Committee and its Role in Interpreting the International Covenant on Civil and Political Rights vis-à-vis States Parties

Published on August 28, 2015        Author: 

The role of the UN Human Rights Committee (HRC) in the interpretation of the provisions of the International Covenant on Civil and Political Rights (the Covenant) has recently been questioned in a post by Dr. Harrington.

Dr. Harrington recognises that the HRC has an important role in the interpretation of the Covenant, however the last word on interpretation would go to States parties. The HRC should “monitor, question and guide”, but it would be States who decide whether the observations and recommendations issued by the HRC are to be supported and implemented. This would allegedly depend on “the specificity and the context” of the recommendations and “the expertise and stature of the Committee members”. This view of the role of the HRC is not unanimously shared, as is clear from some of the comments on the post that refer to authoritative sources that qualify the HRC as the “pre-eminent interpreter of the Covenant”.

It is here argued that the main question is who can say the best, rather than the last, word on the interpretation of the Covenant. In this regard, the HRC has an interpretative authority that prevails over that of States parties, especially when it comes to examining periodic reports and formulating concluding observations. In fact, the HRC, far more than the individual States parties, has the experience in applying the Covenant that is relevant for its interpretation. Read the rest of this entry…

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Introducing a new EJIL:Talk! Editor – Diane Desierto and new Associate Editors – Geraldo Vidigal and Mary Guest

Published on August 27, 2015        Author: 

I have the pleasure of introducing new members of the EJIL:Talk! editorial team. Diane Desierto, who has already served as a contributing editor of the blog for the past two years, is now a full editor of the blog. Diane is Associate Professor of Law and Michael J. Marks Distinguished Professor in Business Law at the William S. Richardson School of Law at the University of Hawaii, where she is also Co-Director, ASEAN Law & Integration Center (ALIC). She has wide-ranging interests in international law, including various aspects of International Economic Law (World Trade Law, International Investment Law, International Finance Law, Law and Development), International Dispute Settlement, International Human Rights and Humanitarian Law and Association of Southeast Asian Nations (ASEAN) Law. Her writing on the blog is sufficient introduction of the quality and breadth of her scholarship.Diane Desierto

Last week, I wrote about Sadie Blanchard’s departure from the role of Associate Editor and commenting that she will be a hard act to follow. Well, we have not one but two new Associate Editors. They are Geraldo Vidigal and Mary Guest.

Geraldo Vidigal is a Senior Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.Vidigal_Geraldo_6-to-5_e40a40dc34 He has a PhD in Law from the University of Cambridge, an LLM from the Sorbonne Law School (Paris 1) and an LLB from the University of São Paulo. Prior to joining the Max Planck Institute, he was a Jean Monnet Fellow at the Global Governance Programme of the European University Institute in Florence and a Marie Curie Fellow within the DISSETTLE FP7 Research Project at Bocconi University, Milan. Geraldo’s research interests include international economic law and international dispute resolution, with a focus on the role of international courts and tribunals in the establishment and enforcement of international obligations. His publications include an article in the European Journal of International Law as well as a recent piece on the blog.

Mary Guest, comes to the blog with over 10 years experience in legal practice both as a senior associate at Clifford Chance and as Head of Legal – Commercial at the English Football Association. She has recently turned to international law and human rights law and has a Masters in International Law (with overall distinction) from the University of Cambridge.mary guest

In addition to writing their own pieces on the blog, Geraldo and Mary will help assist with approving and editing submissions, organizing symposia and book/article discussions; and collating and publishing news items

We welcome them all and look forward to their contributions to the blog.

 

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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 3)

Published on August 25, 2015        Author: 

In our last post, we analysed Croatia’s denunciation of its arbitration with Slovenia emerging from the scandal of secret communications between the arbitrator of Slovenian nationality and the Slovenian agent. In this final post, we examine the ramifications of the scandal for the international judicial system: that is, the informal set of international courts and tribunals in which at least one of the parties is a State. We suggest that the scandal is not an isolated case but rather symptomatic of systemic problems. This, we argue, supports the case for the investment of energy by the college of international lawyers to investigate the case for procedural reform in international courts and tribunals.

If we may be permitted to indulge in a spot of shameless advertisement, we are co-editors (along with Dr Filippo Fontanelli (University of Edinburgh), and Dr Vassilis Tzevelekos (University of Hull)) of an edited volume entitled Procedural Fairness in International Courts and Tribunals due to be published in September by the British Institute of International and Comparative Law. As this story broke – just as we were putting the finishing touches to the concluding chapter to the volume (thus seeking to justify, if only to ourselves, the effort) – it occurred to us that we could not have concocted a more apt scenario encapsulating the subject if we had tried.

Read the rest of this entry…

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Announcements: Call for Submissions, Revista Tribuna Internacional Law Journal (Volume 4, Issue 8); Goettingen Journal of International Law, New Issue (Volume 6, Issue 2)

Published on August 23, 2015        Author: 

1. Call for submissions, Volume 4, Issue 8 (December 2015). The Revista Tribuna Internacional Law Journal is an academic publication of the International Law Department of the University of Chile’s Law School. The Journal appears twice a year (June and December) in print and online format and is available open access. The Journal’s main goal is to promote the study, debate, analysis and communication of international law in a pluralistic and scientifically rigorous manner. This call for submissions is open to unpublished articles and monographs, case-law comments and book reviews, in the fields of international public law, international private law, international human rights law, international relations and related topics. All submissions are assessed through double-blind peer review. Article submissions should be of 8,000-9,000 words, case notes of 5,000-6,000 words and book reviews of 2,000-3,000 words. All submissions must comply with ISO 690 and ISO 690-2 guidelines. Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 5 October 2015. For article selection process and submission details see here. For further information, guidelines for authors and to see Volume 4, Issue 7 (first semester, 2015) see here.

2. Goettingen Journal of International Law, New issue. The Goettingen Journal of International Law has recently released Volume 6, Issue 2, which can be accessed here. The articles included in this issue address a variety of current questions in international law, including an article by Heike Krieger which reflects on the development of immunities. Further contributions are by Sergio Dellavalle, Tim Banning and Mélanie Vianney-Liaud.

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Alison Duxbury and Ian Johnstone: A Rejoinder

Published on August 21, 2015        Author: 

Delighted as I am to have received the insightful comments of Alison Duxbury and Ian Johnstone, I cannot write a very lengthy rejoinder, for the good reason that on most general matters, the three of us seem to be in broad agreement. In particular Johnstone and I are pretty much on the same page, it seems, our only quibble (if that is what it is) being about whether I go far enough in discussing the weaknesses of functionalism as principal-agent theory. Johnstone contends that I do not, and even with this I agree: functionalism is not even very good at discussing the relationship between international organizations and their member states, by and large because it refuses to acknowledge the political nature of this relationship. Functionalism aims to take the politics out of politics, and as usual, this affects its explanatory force. If the article focuses on other aspects of functionalism, it is because elsewhere I have made critical comments about such staples as the implied powers doctrine, the ultra vires doctrine, or the bias of functional necessity in the law on privileges and immunities, for instance in An Introduction to International Organizations Law (3rd ed, 2015). Beyond this, both Johnstone and I signal a move to discursive accountability (the adjective is his; I wish I had thought of it) driven largely by reputational concerns, and his rendition hereof as a ‘looser form of functionalism’ may actually give functionalism more credit than I would give it – I am not so sure that the result can still qualify as a form of functionalism.

Duxbury and I are also broadly on the same page, but she does pose some explicit questions. First (her last question) is whether functionalism has actually transformed, and here the answer must be in the negative: the process of transformation is still ongoing, and will no doubt go on for a few more decades. It is a glacial process, not an overnight transition, partly because too many have vested interests in not discarding functionalism altogether, and that includes international organizations and their staff: they benefit tremendously from the bias inherent in the law. It also includes the member states of organizations generally, who can write off governmental responsibilities and use organizations for scapegoating purposes, tut-tutting every now and then about ‘mission creep’ but secretly happy to use organizations as instruments of what Foucault would call governmentality: for most member states, having entities such as the World Bank or the International Organization for Migration function without too much oversight is much preferable to strict governmental control. It also covers pretty much all academics working on international organizations law (myself included), partly because of the way those academics are trained, and partly because functionalism generates the promise of a better world – and that is a promise that is hard to ignore.

To the extent that the above also answers Duxbury’s second question (why did functionalism become dominant?), the most difficult to answer is her first question: why trace the origins of functionalism back to two fairly obscure US-based authors from the early 20th century, rather than to later European writers such as, say, Schermers, or Bowett? And can I be certain that Reinsch and Sayre did influence their successors in quite the same measure that I think they did? Read the rest of this entry…

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Thank You Sadie Blanchard!

Published on August 21, 2015        Author: 

Exactly two years ago today, I wrote a post introducing Sadie Blanchard as a new (and our first) EJIL:Talk! Associate Editor. Today, I write to announce that Sadie is leaving EJIL:Talk! after a couple of years of the most wonderful service. Sadie leaves us to return to her alma mater, Yale Law School, where she has taken up a position as Research Scholar in Law and Private Law Fellow and will work in helping to run the newly established Yale Law School Center for the Study of Private Law. Her work at the Center will include her continuing research and scholarship on arbitration, including investment arbitration.photo: Marian Majik

I first met Sadie 7 years ago when she took a class of mine at Yale Law School. She was an excellent student and one of the leading lights in the Yale Forum on International Law. It was a pleasure to have her work for the blog and she has done a tremendous job! Much of her work has been behind the scene: editing (and improving!) posts, arranging book discussions, discussion on articles (like this week’s discussion on the article by Jan Klabbers), liaising with contributors, sorting out technical issues – all the things that make the blog work well! We are immensely grateful to her for all her work. She will be a very hard act to follow!

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