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PhD Training School on Contemporary Challenges to International Criminal Law

Published on January 31, 2013        Author: 

To be held at the Institute of International Relations in Prague, on 14-16 March 2013. The PhD Training School is organised within COST Action 1003: “International Law Between Constitutionalisation and Fragmentation: the role of law in the post-national constellation”. More information here.

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The UK’s Use of Drones in Afghanistan and Its Definition of “Civilians”

Published on January 31, 2013        Author: 

Last week, Ben Emmerson QC, the UN Special Rapporteur on Counter-Terrorism and Human Rights announced that he was establishing a panel which will investigate allegations that drone strikes and other forms of remote targeted killing have caused disproportionate civilian casualties. The panel is charged with making recommendations regarding the obligation of States to conduct independent and impartial investigations into such allegations with a view to securing accountability and reparations. Most of the attention regarding the use of drones for targeted killing has, been focused on the United’s States drone programme. This is understandable as the vast majority of drone operations for targeted killing have been carried out by the US. However, it is implicit in Ben Emmerson’s statement that he also intends to examine the use of drones by other countries, and particularly by Israel and by the United Kingdom (see report by the Guardian).  This is because he mentions the use of drones in the “State of Palestine” and also refers to co-operation he has received from the government of the UK.

It is not well known that the UK also uses drones or Unmanned Aerial Vehicles (UAVs) for targeted killing and there has been little analysis of casualties arising from UK drone strikes.  A recent report by the UK House of Commons Library provides an overview of the:

“The strengths and weaknesses of UAVs, the different types of UAVs in use by the UK Armed Forces in Afghanistan, rules of engagement and highlights some of the points raised by those concerned about their development and use.”

The report points out that:

“Reaper is the only armed remotely piloted aircraft system used by the UK. It is only deployed in Afghanistan. Defence Minister Andrew Robathan has confirmed the UK does not use armed UAVs against terrorist suspects outside Afghanistan. Defence Minister Philip Dunne has confirmed it has not been used in Pakistan or Somalia. The MOD has not made a decision as to whether to retain Reaper once combat operations end in Afghanistan. As of 1 November 2012, 297 Hellfire precision guided missiles and 52 laser guided bombs have been employed by Reaper since operations began in Afghanistan. Reaper deployed to Afghanistan in 2007 but only had the capability to deploy air-to-ground weapons since May 2008.” (p. 11)

Civilian Casualties from UK Drones

One of the criticisms of the US drone programme is the US claim that few or indeed no civilians are harmed by drone strikes. This is a claim that has been disputed by journalists and others (see for example, the Bureau of Investigative Journalism). The UK makes a similar claim in relation to its programme. Read the rest of this entry…

 

Call for Papers: The Constitutionalization of European Budgetary Constraints

Published on January 29, 2013        Author: 

A call for papers for a conference at Tilburg Law School on 30/31 May is available here. The purpose of the conference is to gather an internationally renowned group of scholars to a) analyze the EU Fiscal Compact: b) examine in a comparative perspective the constitutionalization of a balanced budget rule in 25 EU member states; and c) discuss the constitutional future of the European Economic and Monetary Union (EMU).

 

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Iceland not responsible for the liabilities of its deposit insurance scheme

Published on January 28, 2013        Author: 

In a landmark decision, the EFTA Court on 28 January 2013 dismissed all claims brought by the EFTA Surveillance Authority against Iceland in the Icesave case. The Authority had alleged that Iceland had breached its obligations under Directive 94/14/EC on deposit guarantee by failing to compensate Icesave depositors and had violated the prohibition on non-discrimination in the Directive and Article 4 of the EEA Agreement by prioritising payments to domestic savers. The court, referring to the collapse of the Icelandic banking system as an “enormous event” (para. 161), found that Iceland was not responsible for the liabilities of the Icelandic deposit insurance scheme that was overwhelmed with claims following the collapse of Iceland’s three major banks.

Icesave refers to two branches of the Icelandic bank Landsbanki that accepted deposits offering comparatively high interest rates in the UK and the Netherlands. Deposits in these branches were primarily the responsibility of the Icelandic Depositors’ and Investors’ Guarantee Fund (TIF). Following the wholesale collapse of Iceland’s banking system in October 2008, savers in the UK and the Netherlands lost access to their deposits on 6 October 2008. The Icelandic Parliament adopted emergency legislation on the same day to split Landsbanki into a good and a bad bank. By virtue of the same legislation, it gave priority to depositors as compared to other creditors (for further background on the Icesave dispute, including the unsuccessful negotiations between Iceland and the UK/Netherlands, see my ASIL Insight Iceland’s Financial Crisis – Quo Vadis International Law).

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Conference Announcements

Published on January 26, 2013        Author: 

(1) “The Responsibilities of Non-State Actors in International Law” . The Committee of Non-State Actors of the International Law Association (ILA); The Institute for Transborder Studies (ITS) at Kwantlen Polytechnic University; the Leuven Centre for Global Governance Studies; Oxford Brookes University, invite papers for a conference to be held in Vancouver, Canada on 27-28 June 2013.

Paper abstract should be submitted by 10 February 2013 to:  Noemi.Gal-Or {at} kwantlen(.)ca;  math.noortmann {at} brookes.ac(.)uk; j.daspremont {at} uva(.)nl; or to cedric.ryngaert {at} law.kuleuven(.)be Messages should indicate as subject: NSA Vancouver 2013.

Further details about the conference are available here

2) The Faculte Libre de Droit, d’Economie et de Gestion de Paris is organising an international symposium on “Embargoes and International Sanctions: Between Legality and Reality” in Paris on 1 February 2013. Speakers include will include: H.E. Mr Boutros Boutros-Ghali, former UN Secretary-General, and H.E. Mr Roland Dumas, former Minister of Foreign Affairs of France; Dan Joyner, Matthew Happold, Alexander Orakhelashvili and Antonios Tzanakopoulos. Pierre-Emmanuel Dupont is co-organiser.

Further information about the symposium is available here.

3)  Society of Legal Scholars Annual Conference 2013, Edinburgh, “Theme – Britain in Europe: Europe in Britain?”. The International Law Section of the SLS invites papers discussing any aspects of public international law , for the Annual Meeting of the SLS. The deadline for proposals is 10 March 2013. Proposals should be sent to Professor Matthew Happold at: Matthew.Happold {at} uni(.)lu

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French Military Intervention in Mali: It’s Legal but… Why? Part II: Consent and UNSC Authorisation

Published on January 25, 2013        Author: 

In the First Part of this comment we have seen that reference to article 51 of the UN Chapter in order to justify Operation Serval, is problematic. We will now discuss the two other legal arguments used by France.

 Consent of the Malian Authorities

The argument according to which the authorities of Mali had the sovereign right to request external military intervention against the Islamist rebels and that France had the right to intervene on the basis of this invitation seems a priori powerful. Indeed, in her comments to the press just before the start of Operation Serval, Susan Rice, the U.S. Permanent Representative to the United Nations, argued that any State “can support and encourage the Malian government’s sovereign request for assistance from friends and partners in the region and beyond’ and that “there was clear-cut consensus about the gravity of the situation and the right of the Malian authorities to seek what assistance they can receive”.

This should nonetheless not lead to the conclusion that third States have an unlimited right to military intervention on the basis of the request or the consent of the legitimate authorities of the State where the intervention takes place. External intervention by invitation should be deemed in principle unlawful when the objective of this intervention is to settle an exclusively internal political strife in favor of the established government which launched the invitation (see T. Christakis & K. Bannelier, “Volenti non fit injuria? Les effets du consentement à l’intervention militaire”, Annuaire Français de Droit International, 2004, at 102-138). Such a military intervention will not be in principle in violation of art. 2(4) of the UN Charter, which is inoperative in such a situation because there is no use of force of one State against another (see art. 2 §4: “in their international relations”) but two States cooperating together. Such a military intervention could however constitute a violation of the principles of non-intervention and non-interference in domestic affairs and the principle of self-determination of peoples. The resolutions adopted within the UN General Assembly and State practice in this field confirm this conclusion which was also shared by authors such as M. Bennouna, L. Doswald-Beck or by the Institute of International Law in its 1975 Wiesbaden Resolution on The Principle of Non-Intervention in Civil Wars (esp. art. 2) or the 2011 Rhodes Resolution on Military Assistance on Request. ” Read the rest of this entry…

 
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French Military Intervention in Mali: It’s Legal but… Why? Part I

Published on January 24, 2013        Author: 

Part 1: The Argument of Collective Self-Defense

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) and chairman of the ESIL Interest Group on Peace and Security.

Dr. Karine Bannelier is Assistant Professor of International Law at the University Grenoble-Alpes (France). She is Director of the Master’s Degree in International Security and Defense.

One week after France launched its military intervention (“Operation Serval”) in Mali, there seems to be a general consensus concerning the legality of this intervention. Indeed, as the French Minister of Foreign Affairs Laurent Fabius rightly emphasized, France has not received a single protest concerning this intervention. On the contrary, the number of expressions of support is overwhelming: many individual States, regional organizations (including ECOWAS), the UN Secretary General and the members of the UN Security Council themselves have expressed their support and understanding. Even the rare States who expressed their opposition to this intervention did not challenge its legality. This contrasts with various military interventions in the past which were met with strong criticism and seems to indicate that no State doubts the legality of the French intervention in Mali.

But what is the precise legal basis authorizing it?

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France Intervenes in Mali Invoking both SC Resolution 2085 and the Invitation of the Malian Government – Redundancy or Legal Necessity?

Published on January 23, 2013        Author: 

Vidan Hadzi-Vidanovic is a lawyer in the Registry of the European Court of Human Rights. The views expressed in this contribution are those of the author and do not necessarily represent the views of the European Court of Human Rights and the Council of Europe.

On 11 January France commenced air-strikes against Malian rebel forces which are controlling two thirds of the Malian territory. It also commenced ground operations several days later. The French Foreign Ministry explained that it is acting upon the invitation of the Malian government. Nevertheless, it emphasized that the action is conducted “strictly in the framework of the United Nations Security Council resolutions”. The intervention came a day after the Security Council called for a “rapid deployment of the African-led International Support Mission in Mali (AFISMA)” which was authorized by Resolution 2085 (2012) to “take all necessary measures” for supporting Malian authorities in “recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups and in reducing the threat posed by terrorist organizations”.

Looking at the position of the French government and the formulation of the relevant provisions of Resolution 2085, one may rightfully wonder what the legal basis for the French intervention and the announced deployment of the Nigerian-led intervention forces actually is. Is it an intervention based on the invitation of the legitimate government of Mali, or an intervention based on the authorization of the Security Council, or are the two separate legal grounds mutually reinforcing?

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Technical Issues

Published on January 23, 2013        Author: 

Apologies to those readers who have tried accessing the blog in the past couple of days and were unable to do so – we are experiencing some technical issues. Specifically, the number of email subscribers we now have exceeds the amount of outbound email that our host server allows. We thus have to temporarily suspend our subscription by email service, which will resume once the host issue is resolved. Until then, readers who don’t necessarily want to visit our homepage every day can still subscribe using an RSS service like Google Reader.

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Philippines Initiates Arbitration Against China over South China Seas Dispute

Published on January 22, 2013        Author: 

Today, the Philippines has initiated arbitral proceedings against China with regard to China’s claims over much of the South China seas. Those Chinese claims have led to serious disputes between China and several of its neighbours in East Asia with those disputes intensifying recently. Both the Philippines and China are parties to the United Nations Convention on the Law of the Sea and Part XV of that treaty provides for compulsory arbitral/judicial jurisdiction over disputes arising under that Convention. As is well known, UNCLOS Part XV provides for a choice of procedure and States parties may choose either the International Tribunal for the Law of the Sea (ITLOS); the International Court of Justice (ICJ); or an arbitral tribunal as their preferred means for compulsory settlement. In the absence of a choice, arbitration is the default mode of settlement. Also, where the disputing parties have not chosen the same means, the dispute shall be referred to arbitration under annex VII of the Convention (See Art. 287, paras. 1, 3 & 5). As neither the Philippines nor China has made a choice of tribunal, the Philippines has referred this dispute to arbitration. The Philippines notification of the proceedings and its statement of claim can be found here.

Although UNCLOS provides for compulsory jurisdiction over most matters arising under the Convention,  Art. 298 provides that a State may at any time declare that it does not accept compulsory jurisdiction over certain specified categories of disputes. In particular, a State may exclude compulsory jurisdiction with respect to “disputes concerning the interpretation or application of  articles 15, 74 and 83 relating to sea boundary delimitations, or those  involving historic bays or titles”.  China did precisely this in 2006. So, the first thing the Philippines would need to do would be to persuade the arbitral tribunal that it has jurisdiction over the case. To do that it would need to show that the dispute it has submitted to the arbitral tribunal falls outside China’s exclusion of jurisdiction under Art. 298(1)(a). This may not be so easy.

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