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The Drowning Child

Published on September 3, 2015        Author: 

If you haven’t already – read, look, and weep. Then reflect, perhaps, on why and how it is that such images are able to penetrate the walls we erect to shield ourselves from an uncomfortable reality, even while we are rationally fully aware of that reality. Having done so, I could not help but remember this other, hypothetical drowning child (see also here and here):

To challenge my students to think about the ethics of what we owe to people in need, I ask them to imagine that their route to the university takes them past a shallow pond. One morning, I say to them, you notice a child has fallen in and appears to be drowning. To wade in and pull the child out would be easy but it will mean that you get your clothes wet and muddy, and by the time you go home and change you will have missed your first class.

I then ask the students: do you have any obligation to rescue the child? Unanimously, the students say they do. The importance of saving a child so far outweighs the cost of getting one’s clothes muddy and missing a class, that they refuse to consider it any kind of excuse for not saving the child. Does it make a difference, I ask, that there are other people walking past the pond who would equally be able to rescue the child but are not doing so? No, the students reply, the fact that others are not doing what they ought to do is no reason why I should not do what I ought to do.

Once we are all clear about our obligations to rescue the drowning child in front of us, I ask: would it make any difference if the child were far away, in another country perhaps, but similarly in danger of death, and equally within your means to save, at no great cost – and absolutely no danger – to yourself? Virtually all agree that distance and nationality make no moral difference to the situation. I then point out that we are all in that situation of the person passing the shallow pond: we can all save lives of people, both children and adults, who would otherwise die, and we can do so at a very small cost to us: the cost of a new CD, a shirt or a night out at a restaurant or concert, can mean the difference between life and death to more than one person somewhere in the world – and overseas aid agencies like Oxfam overcome the problem of acting at a distance.

At this point the students raise various practical difficulties. Can we be sure that our donation will really get to the people who need it? Doesn’t most aid get swallowed up in administrative costs, or waste, or downright corruption? Isn’t the real problem the growing world population, and is there any point in saving lives until the problem has been solved? These questions can all be answered: but I also point out that even if a substantial proportion of our donations were wasted, the cost to us of making the donation is so small, compared to the benefits that it provides when it, or some of it, does get through to those who need our help, that we would still be saving lives at a small cost to ourselves – even if aid organizations were much less efficient than they actually are.

I have always found this argument in its essence to be incredibly compelling, even if I am no utilitarian, and even if Singer’s argument when brought to its fullest is far too demanding of most of us. But even so, as the “migrant” crisis is sweeping Europe, as children are drowning on its shores, I feel that some people who are not moved by the big picture (like this guy) might, perhaps, be moved if they were asked a smaller, more human-scale question: what would you do if you saw a child drowning in a pond?

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UN Peace Operations: Tracking the Shift from Peacekeeping to Peace Enforcement and State-Building

Published on September 2, 2015        Author: 

On June 16, the UN secretary General’s High-Level Independent Panel released its eagerly awaited review of UN-mandated peacekeeping: ‘Uniting our Strengths for Peace’. A comprehensive assessment of the UN’s evolving role in conflict management and a detailed set of reforms to its peacekeeping architecture, the report has already generated thoughtful analysis, with many observers highlighting the Panel’s principal conclusion that “lasting peace is achieved not through military and technical engagements, but through political solutions” (Executive Summary). This post examines three significant trends in peacekeeping mandates – the use of force, state-building and criminal jurisdiction – which will likely remain contested aspects of UN-mandated conflict resolution going forward. Against the backdrop of the report’s main findings, it argues that the UN’s large-scale operations increasingly blur the lines between political mediation and classical peace-keeping on the one hand, and peace-building, peace enforcement and state-building on the other.

As is well known, peacekeeping missions have operated in increasingly hostile environments since the end of the Cold War. Beginning with the Balkans, Rwanda and Somalia in the 1990s, peacekeepers have often been deployed to areas with little or no peace to keep, while taking on a continuously expanding set of peace-building tasks. This trend has only intensified in the last few years, starting with the UN’s longstanding mission in the Democratic Republic of Congo (MONUSCO), its revamped mission in South Sudan (UNMISS), as well as newly established missions in Mali (MINUSMA) and in the Central African Republic (MINUSCA).

Yet, despite its expanding role in conflict-management, a striking feature of recent UN operations has been the Security Council’s practice of enshrining the classic principles of peacekeeping into mission mandates. Starting with the 2013 renewal of MONUSCO’s mandate, the Security Council has consistently re-affirmed the ‘trinity of virtues’ – impartiality, host state consent and non-use of force beyond self-defence and defence of the mission mandate – in the preambles of its largest peacekeeping operations (DRC: 2013, 2014, 2015; Mali: 2013, 2014, 2015; CAR: 2014, 2015; South Sudan: 2014, 2015). Although their status under international law remains contested, the three classic principles are grounded in an (almost) by-gone era of conflict-management, where UN peacekeepers monitored mutually agreed cease-fires.

Read the rest of this entry…

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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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