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Special Agreements Concluded by Armed Opposition Groups: Where is the Law?

Published on February 27, 2014        Author: 

Common Article 3 of the 1949 Geneva Conventions binds the parties to non-international armed conflicts (NIACs) without making any distinction between the obligations of States and those of armed opposition groups (AOGs). Additionally, it encourages the parties to expand their obligations by concluding special agreements in order to bring other provisions of the GCs into force. These agreements’ importance has been recognized here by the ICRC, when identifying them as valuable methods to improve respect of IHL. In a recent post in Opinio Juris, Rogier Bartels has mentioned some contemporary peace agreements which could potentially also be framed within that category. However, CA3 doesn’t really determine their legal nature. Are they regulated by international or domestic law? What kind of obligations do they create?

Unraveling these questions isn’t merely an intellectual exercise. Special agreements serve to strengthen public confidence in IHL as a useful, practical and relevant body of law. Indeed, they help achieve willingness and material conditions to augment AOGs’ compliance. Whatever approach one selects, it will inevitably have consequences on the way we think about IHL’s effectiveness at large.

This post will analyse three alternatives regarding the legal nature of special agreements: i) special agreements under domestic law; ii) special agreements under a sui generis regime; iii) special agreements under international law. We will argue that this last perspective provides a more accurate description of the current dynamics of international law and is more useful to engage with AOGs on IHL compliance issues.

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The ILC’s Clever Compromise on the Validity of Reservations to Treaties

This post, adapted from our introduction to the symposium on the International Law Commission’s Guide to Practice on Reservations to Treaties in the current issue of the EJIL, looks at one specific topic addressed by the ILC – the rules governing the validity of reservations and the consequences of invalidity. This is not only the most controversial and vexing of all of the issues addressed in the Guide, but also the one where the Guide makes it perhaps most important contribution. Here we not only have a meticulous analysis of a technical topic, but nothing short of an existential story of international law as a unified system as opposed to a set of fragmented sub-regimes. How so? When one reads Articles 19-22 VCLT, particularly in light of the ICJ’s Reservations to the Genocide Convention opinion, one cannot avoid the impression that the process of determining whether a reservation was invalid as being contrary to the object and purpose of a treaty was meant to be more or less inter-subjective: each state should determine for itself whether a given reservation was compatible with the treaty’s object and purpose, and if it was not it should make an objection to that effect.

But such an inter-subjective approach looks remarkably unappealing from the perspective of major multilateral normative treaties, particularly in the human rights context. The rights of individuals, so the reasoning among many human rights lawyers went (as exemplified most notably in Human Rights Committee’s General Comment No. 24), should not depend on the existence of objections, vel non, by third states, especially when reciprocity of state obligations has little place in the human rights context and when for a variety of reasons states routinely fail to object to reservations even when there manifestly are perfectly good reasons to do so. While objections to reservations would be probative, they could not be dispositive. It would indeed primarily be upon courts or treaty bodies to determine whether a reservation is compatible with the object and purpose of the human rights treaty, while the consequence of invalidity would normally not only be the nullity of the reservation, but also its severability, so that the reserving state would remain bound by the human rights treaty without the benefit of its reservation. Human rights protection would thus always be maximized.

Many governments were less than pleased with what they saw as a power-grab by human rights bodies and a usurpation of their sovereign prerogatives. The ILC, being the bastion of international law orthodoxy, was no more pleased, nor was Alain Pellet as its Special Rapporteur. How could international law survive as a coherent, unified system if more of its branches followed the human rights example and asserted that because they were special they needed special rules, rather than the outdated Vienna framework. If that was true for human rights, why would it not be true for trade, the environment, or whatever other topic people became strongly devoted to. Fragmentation beckoned, and it needed to be resisted.

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Announcements: Conference on Syria; AHRI in Copenhagen; Frankfurt Investment Law Workshop

Published on February 22, 2014        Author: 

1. The program of the international conference on the Syrian crisis in international law to be held in Qatar 25-26 February is now available here.

2. The Association of Human Rights Institutes will be holding a conference in Copenhagen on 29-30 September 2014. The call for papers is available here.

3. Frankfurt Investment Law Workshop on “International Investment Law and the Global Financial Architecture”

For several years, the Frankfurt Investment Law Workshop has been a forum to discuss conceptual issues of international investment law. This year’s workshop – organised by Rainer Hofmann (Frankfurt), Stephan Schill (Max Planck Institute, Heidelberg) and Christian J Tams (Glasgow) – will take place on 14-15 March 2014, and it will explore “International Investment Law and the Global Financial Architecture”. Papers will address interrelations and interactions between international investment law on the one hand, and financial market and banking regulation, free flow of capital, sovereign debt, and monetary policy on the other. The full program is here. The event is open to the public, but requires prior registration. Anyone interested in participating should email S.Schimpf [at] jur.uni‐frankfurt.de.

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Oxford Public International Law Discussion Group Podcasts

Published on February 19, 2014        Author: 

The purpose of this post is to alert readers to the podcasts of the Oxford Public International Law Discussion Group. The Oxford PIL Discussion Group hosts a speaker event each week and topics involve contemporary and challenging issues across a range of areas of international law. Speakers include distinguished international law practitioners, academics, and legal advisers from around the world. Podcasts of these talks, going back over a year are available, on the Oxford Public International Law @ Oxford website. The most recent podcasts are of the talk given week before last by Prof Martti Koskenniemi (University of Helsinki) and that of the week before by Prof. Kevin Jon Heller (now at the University of London). This week we are delighted to host Professor Elies van Sliedregt (Dean, VU University of Amsterdam Law School) who will speak on culture clashes in international criminal law, and next week we have the reknowned arbitrator, the Honourable Charles Brower, who speaking on the fate of international dispute resolution.

Those of you who are able to make it to Oxford to attend in person are welcome to come along. The group typically meets each Thursday during Oxford terms in The Old Library, All Souls College, with lunch commencing at 12:30. The discussion group’s meetings are part of the programme of the British Branch of the International Law Association and are supported by the Law Faculty and Oxford University Press. No RSVP is necessary. To join the PIL Email List and to receive information about the PIL Discussion Group meetings, as well as other PIL@Oxford news contact Jennifer.hassan {at} law.ox.ac(.)uk

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The Peace Palace Heats Up Again: But Is Inter-State Arbitration Overtaking the ICJ?

Published on February 17, 2014        Author: 

Since the establishment, after World War I, of the Permanent Court of International Justice (PCIJ), judicial settlement by standing international courts has been more popular than inter-State arbitration as a means of settling inter-state disputes (except perhaps in the trade context where the GATT/WTO panels can be characterised as a form of arbitration). However, it may be that inter-state arbitration, is now eclipsing, or, is perhaps now as popular as, judicial settlement, even by the International Court of Justice.  A look at the docket of the ICJ as it currently stands, and at the list of inter-state arbitrations currently being administered by the Permanent Court of Arbitration is very revealing. The PCA now has about as many active inter-state disputes as the ICJ. As far as I can tell, this is the first time that this has happened in the almost century long history of the World Court (the PCIJ and the ICJ).

In 1991, the American international lawyer,  Keith Highet,  who was counsel in many cases before the International Court of Justice, wrote a piece in the American Journal of International Law (Vol. 85, No. 4 (Oct., 1991), pp. 646-654) entitled “The Peace Palace Heats Up: The World Court in Business Again?”. Highet was reporting the dramatic rise in the number of cases submitted to the ICJ in the two years preceding his piece. He began by noting the gloomy forecasts of commentators about the ICJ, in the 1980s, particularly after the Nicaragua case, when it appeared that the Court had lost the confidence of some states. Predicitions about the Court’s demise turned out, happily, to be way of the mark. In just a few years after Nicaragua, Highet was able to write: “the Court in the Hague is busier than it has ever been in its entire history.” (p. 646). He concluded by noting that the Court “has become a ‘hot court’   . . . It is positioned, for the first time in its collective seventy-year history, to become the great international judicial institution that its friends and supporters always knew it could be.”(p. 654)

Today, those same words can be repeated. The Peace Palace again houses a “hot court”. However, this time it is the ICJ’s “relative” and “house-mate”, the Permanent Court of Arbitration (the original inhabitant of the Peace Palace), that is busier than ever and at its peak in terms of the number of cases it is handling. Read the rest of this entry…

 

Announcements: Int. Law Weekend Call; Conference on the ECtHR at PluriCourts, Oslo;

Published on February 15, 2014        Author: 

1. The sponsors of International Law Weekend 2014 (ILW) invite proposals for panels, roundtables, and lectures. ILW 2014 will be held on October 23-25, 2014, in New York City and the overall theme is International Law in a Time of Chaos. ILW is sponsored and organized by the American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA). This annual conference attracts an audience of more than one thousand practitioners, academics, diplomats, members of the governmental and nongovernmental sectors, and most importantly, foreign policy and law students who are learning about the range of practice and career opportunities. Panel proposals may also concern any other aspect of international law, including trade, investment, arbitration, intellectual property, combatting corruption, labor standards in the global supply chain, and human rights, as well as issues of international organizations and international security.   The sponsors  are also interested in panel proposals that are of particular interest to practitioners.  Alongside a broad array of public international law topics, there will  be dedicated tracks of private international law topics in each program slot. The ILW Program Committee invites proposals to be submitted online on or before Friday, March 21, 2014.  Questions regarding ILW 2014 can be directed to conferences {at} ilsa(.)org.

2. The University of Oslo’s  PluriCourts Center on the Legitimate Roles on the Global Judiciary is organizing, under the auspices of the Council of Europe, a conference on “The Long-Term Future of the European Court of Human Rights” (Oslo, April 7-8, 2014). The conference is targeted at scholars as well as international and national judges, governmental experts working on the reform of the Court, and representatives of applicants to the Court. The aim is to inspire the reform process and inform the work of the Council of Europe’s Steering Committee for Human Rights (CDDH). Speakers will include: Dean Spielmann, President of the European Court of Human Rights, and several Judges of the Court; Andreas Paulus, Judge at the Federal Constitutional Court of Germany; members of CDDH; Luzius Wildhaber, University of Basel and former President of the ECtHR; Ed Bates, University of Southhampton; Basak Cali, Cok University;Laurence Helfer, Duke University; Dinah Shelton, George Washington University; Elisabeth Lambert-Abdelgawad, University of Strasbourg; Andreas Føllesdal and Geir Ulfstein, Co-Directors at PluriCourts, University of Oslo.

For information on registration and the detailed program, please visit the conference website.

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Novel practice of the Security Council: Wildlife poaching and trafficking as a threat to the peace

Published on February 12, 2014        Author: 

OLYMPUS DIGITAL CAMERAOn 12 and 13 February 2014, heads of states will meet at a London summit on the trafficking of endangered species convened by British Prime Minister David Cameron. The background to this initiative is the increasingly acknowledged link between wildlife poachers, traffickers, and armed conflict in some regions of Africa. According to the WWF, over 20,000 elephants are killed each year for their ivory tusks, many of them in central African conflict zones.

In two recent resolutions of January 2014, on the Central African Republic (res. 2134), and on the Democratic Republic of the Congo (res. 2136), the Security Council (SC) authorized targeted sanctions against poachers, wildlife product traffickers, and against persons and entities pulling the strings. The resolutions were primarily designed to target a number of armed rebel groups operating in the eastern region of the Democratic Republic of the Congo and in the Central African Republic. The United Nations (UN) suspects various armed groups, such as the Lord’s Resistance Army, Somalia’s Al-Shabaab Islamist militant group and Sudan’s Janjaweed militia, to use the illegal ivory trade as a source of generating finances or otherwise to benefit from the illegal wildlife trade. With these resolutions, the Council de facto qualified wildlife poaching and trafficking as a threat to the peace. Although this statement is at least implicit in the resolutions, the rationale remains anthropocentric, as will be shown in this post.

Res. 2134 and 2136: targeted sanctions against wildlife poachers

Under res. 2134 and 2136 states must adopt sanctions, namely freezing assets and restricting travel, on any individual or entity found to be involved in wildlife trafficking. Practically speaking, the resolutions mean that traffickers must be targeted by officials from different government agencies such as interior and finance ministries, and customs. Read the rest of this entry…

 

Business and Human Rights Law in the Council of Europe: Noblesse oblige

Daniel Augenstein

Daniel Augenstein

Nicola Jägers

Nicola Jägers

Willem van Genugten

Willem van Genugten

Daniel Augenstein is Assistant Professor at Tilburg Law School. Willem van Genugten is Professor of International Law at Tilburg Law School and at the North-West University in South Africa (extraordinary chair). He also is President of the Royal Netherlands Society of International Law. Nicola Jägers holds the chair of international human rights law at Tilburg Law School and is also Commissioner at the Netherlands Institute for Human Rights.

In January 2013, the Committee of Ministers of the Council of Europe (CoE) instructed its Steering Committee for Human Rights (CDDH) to elaborate a political declaration supporting the UN Guiding Principles on Business and Human Rights (UNGPs), and a non-binding instrument addressing gaps in the implementation of the UNGPs at the European level. This post discusses the evolution of “business and human rights” and the reception of the UNGPs in the Council of Europe. It draws attention to significant differences in policy approach between the CoE’s Parliamentary Assembly and its Committee of Ministers. It then places the discussed policy developments in the context of the CoE’s own key legal human rights instrument, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). We highlight three areas in which the CoE is well-placed to make an important contribution to addressing the detrimental impacts of global business operations on international human rights protection: the interdependency and interaction between civil and political and social and economic rights; state obligations to respect and protect human rights in relation to corporate violations; and the extraterritorial application of international human rights law.

Business & Human Rights in the CoE’s Parliamentary Assembly

CoE activity on business and human rights dates back to 2009, when the Parliamentary Assembly adopted Recommendation 1858 on private military and security firms and the erosion of the state monopoly on the use of force. This was followed, in 2010, by the more general Resolution 1757 and Recommendation 1936 on human rights and business, which among other things highlighted legal protection gaps in the ECHR regarding human rights violations committed by private corporations. Read the rest of this entry…

 

Announcements: Conference at Tilburg; ESIL Human Rights Interest Group Call for Papers; Summer Academy on Continental Shelf; Venice Academy of Human Rights

Published on February 8, 2014        Author: 

1. Call for Papers: What Form of Government for the European Union and the Eurozone?

Venue: Tilburg Law School, Tilburg, the Netherlands; Dates: 5/6 June 2014; Organizers: Federico Fabbrini, Han Somsen on behalf of Tilburg Law School.

The debate about the institutional reforms of the European Union (EU) generally, and of the Euro-zone specifically, has recently acquired a new impetus. The Euro-crisis and the constitutional responses to it have profoundly modified de facto and de jure the institutional architecture of the EU designed by the Lisbon Treaty, and a number of influential road-maps have been advanced at the highest level of policy-making to trace the way forward for the EU. The purpose of this Conference is to examine from a comparative constitutional perspective the form of government of the EU and to discuss the prospects of integration and institutional reform in the Eurozone and the EU at large. Further details here.

2. ESIL Interest Group on International Human Rights Law has issued a call for papers for the ESIL Vienna conference – details here.

3. The Summer Academy on the Continental Shelf (SACS) will be held from 21 to 28 June 2014 under the auspices of the University of the Faroe Islands. In 2014, SACS will place particular focus on the intricate legal and technical conditions governing the entitlement to and establishment of the continental shelf beyond 200 nautical miles, and on the delimitation of overlapping entitlements to such areas. SACS is limited to 25 attendees with particular interest for scientific and legal aspects relating to the outer continental shelf. It welcomes participants from a broad geographical representation with various professional and academic backgrounds. It will be tutored by leading international experts, including members of the Commission on the Limits of the Continental Shelf, professors of international law and international practitioners in judicial delimitation matters. Proceedings from the Seminar will be published with contributions from the tutors and the best student. For more information on SACS, please visit its website.

4. The Venice Academy of Human Rights will take place from 7-16 July 2014 on the topic “Judicial Legitimacy and the Rule of Law”. The faculty includes Paul Mahoney (distinguished opening lecture), Gráinne de Búrca (general course), Philip Alston, Andreas Føllesdal, Geir Ulfstein, Jeremy Waldron and Michael Zürn.  The Venice Academy of Human Rights 2014, in co-operation with PluriCourts – Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order, will discuss questions of judicial legitimacy and challenges to the rule of law from a multi-disciplinary perspective. The course aims at academics, practitioners, PhD/JSD and master students. Applications are accepted until 4 May 2014 with an early-bird discount until 15 March 2014.

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OUP Debate Map on “Disputes in the South and East China Seas”

Published on February 7, 2014        Author: 

Readers interested in the territorial and maritime boundary disputes between China and her neighbours in the South and East China Seas will welcome the creation by Oxford University Press of a “Debate Map” on the topic. The  “Debate Map” is a valuable way of keeping track of scholarly commentary, in journals and blogs, on the range of issues related to those territorial and maritime disputes. It is essentially an index which categorises and:

maps scholarly commentary on the international law aspects of the conflicts in and around the South China and East China Seas, including maritime boundary disputes, the question of sovereignty over the Senkaku/Diaoyu islands, China’s recent announcement of an Air Defence Identification Zone, and the Philippines/China UNCLOS arbitration. It brings together primary documents with discussions in English-language legal blogs and a selection of journal articles.

Readers can “[u]se this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.” OUP has also made available a range of online OUP materials on these issues (see the Oxford Public International Law Page).

The current Debate Map is the third such Map created by the Law team at OUP. The first was on The Use of Force Against Syria and was noted by John Louth here. The second on the Prosecution of Heads of States and Other Senior Officials at the ICC was discussed by Merel Alstein here. These debate maps are regularly updated and as Merel explains “aim to provide a quick overview of the relevant legal problems and controversies but also to create an archive of scholarship that can be referred back to  . . .”