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China, the Philippines and Oil Rig HD-981: A New Flashpoint in the South China Sea Dispute

Published on May 23, 2014        Author: 

South_China_Sea_vector.svgTensions between China and Vietnam over the disputed Paracel islands erupted into anti-Chinese riots this week in Vietnam. The immediate cause is the positioning of a deep sea exploratory oil rig, the HD-9H1, 17 nautical miles from Triton Island, the south-western most feature of the Paracel group. It is also within 200 nautical miles of the Vietnamese coastline and therefore potentially within the EEZ of Vietnam. (The map at left shows China’s claims in the South China sea as well as each country’s 200-mile exclusive economic zone. Click to enlarge. Credit.)

The underlying dispute is of course whether Vietnam or China has sovereignty over these maritime features. If they do belong to China, any maritime zone they generate would be opposable to Vietnam and a maritime delimitation would be needed to sort out the respective boundaries. Is recourse to international dispute resolution – if not by consent, then initiated by Vietnam – likely in such a case?

The situation obviously has some parallels with the Philippines v China arbitration initiated under the UN Convention on the Law of the Sea (UNCLOS). Indeed, such Annexe VII arbitrations under Part 15 of UNCLOS are undergoing something of a renaissance at present. Other than the Philippines v China case, there is also obviously the pending arbitration in the case of the MV Arctic Sunrise (Netherlands v Russia) – both cases in which a major power has threatened nonappearance. More positively, hearings under the auspices of the Permanent Court of Arbitration recently concluded between Mauritius and United Kingdom concerning the dispute which followed the UK’s pronouncement of a marine protected area around the Chagos archipelago. The attraction of UNCLOS arbitration is that dispute resolution under the Convention is, in principle, compulsory; the downside is that it is riddled with complex exceptions. (As I have noted in a previous post.)

Could this be the next case to go to an Annexe VII Tribunal? The problems with relying on this mechanism to resolve maritime boundary disputes, or disputes concerning the underlying title to an island, are well known. Read the rest of this entry…

 
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The Court of Justice of EU’s Judgment on the “Right to be Forgotten”: An International Perspective

Published on May 20, 2014        Author: 

In its judgment published on 13 May in the case C-131/12 Google Spain AEPD and Mario Costeja Gonzalez, the Court of Justice of the European Union (CJEU), Grand Chamber, recognized a “right to be forgotten” with regard to Internet search engine results. Unfortunately, the judgment has important international implications that the Court did not sufficiently consider. In this post, I will put aside the issues of EU data protection law that the judgment raises, and focus instead on its implications for the rights of individuals to use the Internet as a global communications medium. It is important to note that application of the judgment extends beyond particular search engine providers to include any “provider of content which consists in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference” (paragraph 21), which could include Internet archives, social media, news crawler services, and many other types of online services.

The plaintiff in the case complained to the Spanish Data Protection Agency (DPA) against a Spanish newspaper and Google, stating that a Google search brought up a link to the newspaper containing irrelevant information about him, and requesting that the newspaper be required to remove or alter the pages and that Google be required to remove the data from the search results. The DPA found against Google, which then appealed to the Spanish Audiencia Nacional (National High Court). The Spanish court referred the case to the CJEU. On June 25, 2013, Advocate-General Jääskinen recommended that the Court find that it had jurisdiction over Google; that in its role as a search engine provider, Google was a data processor rather than a controller; and that the EU Data Protection Directive 95/46 does not contain a right to be forgotten that could entitle the plaintiff to have his data deleted from search engine results.

In its judgment, the Court differed in several important points from the Advocate-General’s opinion, and reached the following conclusions:

–Google’s branches in the EU are subject to the national data protection law of the EU member states where they are located, since they are “inextricably linked” to the activities of the Google headquarters in the US by virtue of Google Spain selling advertising space on the search engine provided by Google Inc, even if the actual processing is carried out in the US (paragraphs 42-60).

–Search engines are “data controllers” and as such are independently responsible for the personal data they retrieve, store, and display from websites (paragraphs 21-41).

–Under the Directive, there exists a limited right to have search engines delete material from search results (i.e., a “right to be forgotten”), regardless of whether the material indexed was posted legally or whether it is accurate (paragraphs 62-99). Read the rest of this entry…

 
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Crimea after Cyprus v. Turkey: Just Satisfaction for Unlawful Annexation?

Published on May 19, 2014        Author: 

On 13 March 2014 Ukraine lodged an inter-state application under Article 33 of the European Convention against the Russian Federation. Philip Leach has addressed in this forum the likely implications, suggesting that the occupation of Crimea will present a situation for the European Court similar to that in Ilaşcu v. Moldova and Russia.

The other decided case of the European Court that writers are speculating may be relevant to Ukraine is Cyprus v. Turkey. The Court’s just satisfaction judgment in Cyprus v. Turkey, adopted on 12 May 2014, is the first ever to award just satisfaction in an inter-State case under the Convention. Judge Pinto de Albuquerque and Judge Vučinić declared the judgment “the most important contribution to peace in Europe in the history of the European Court of Human Rights.”

What is important about Cyprus v. Turkey? And how, if at all, might Ukraine use the just satisfaction judgment to advance its own application against Russia?

Read the rest of this entry…

 
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Announcements: Workshop at LSE, Tel-Aviv Conference-Call for Papers, Boat Refugees Conference in London, Postdoc Positions in Oslo, Call for Papers on Syria, Lecture in Brussels on Ethics in International Disputes

Published on May 17, 2014        Author: 

1.  “Sociological Inquires into International Law” (LSE, May 16-17, 2014). The aim of this workshop is to help bring contemporary international law scholarship into a closer conversation with a number of inspiring and theoretically rich literatures on law and markets deriving from traditions of thinking within sociology and anthropology.  We are convinced that, particularly within the field of international economic law, a deeper and more informed engagement with a range of sociological and social theoretic modes of thinking is necessary for intellectual renewal. For details, please visit the workshop site here. If you would like to attend the workshop (and due to the limited available seats), please contact  Gosia Brown (G.M.Brown {at} lse.ac(.)uk)  in advance.

2. Call for Papers – The 2nd Annual TAU Workshop for Junior Scholars: Law Between Normativity and Pragmatism, Tel-Aviv, 10-11 November 2014. When courts are required to reach a decision, they are often faced with the dilemma whether to give primacy to the pragmatic implications of the litigation on the case or to its normative effects on society at large. This pull between normativity and pragmatism is not only the province of courts, but defines law in its essence throughout its diverse fields and manifestations. How ought law deal with the inherent tension between solving specific cases and setting general rules? What are the obligations of states towards foreign individuals or communities under this framework? Read the full call for papers here.

3.  Registration is now open for the Conference ‘”Boat Refugees” and Migrants at Sea: A Comprehensive Approach – Integrating Maritime Security with Human Rights’, to be held on 23-24 June at Senate House, London. This conference aims to comprehensively address the contemporary phenomenon of ‘boat migration’ with a holistic approach. We will consider its multiple facets, combining knowledge from several disciplines and regions of the world, with a view to making a decisive contribution to our understanding of current trends, against the background of the fragmentary responses adopted and innumerable tragedies occurred thus far. Convened by the Refugee Law Initiative and Queen Mary University of London – with support from Athens University and UACES – this innovative event brings together more than 30 expert speakers from academia, NGOs, Frontex, UNHCR, IOM and other institutions. The keynotes are from Professor Guy Goodwin-Gill (Oxford) and Professor François Crépeau (Special Rapporteur on the Rights of Migrants). For further information on the conference, including the programme, please see here. As places are limited, register at the earliest opportunity. The relevant link to the online registration facility with an indication of the applicable fee categories (full, UACES members, and students) is here.

4.  PluriCourtsCentre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo–is announcing three positions as postdoctoral researcher in the following fields: International Criminal Law, International Environmental Law and International Investment Tribunals. For details, see here.

5.  The Qatar University, College of Law and the Qatari Branch of the ILA announce a special issue of the International Review of Law on the Syrian Crisis and International Law. Contributions should discuss public international law, including collective security and the use of force as well as papers exploring the applicability of the Responsibility to Protect theory; international humanitarian law and international human rights law including the relationship of the two bodies of law in the Syrian context; international criminal law – procedural and substantive aspects; or refugee protection and the international ramifications in the Arab region. International Review of Law is a bilingual (English & Arabic content), open-access, peer-reviewed international law journal published by QScience.com. Those interested in contributing are requested to respond to this call for papers by sending in their submissions by August 15th, 2014. For more information, see here.

6.  The European Society of International Law (ESIL), together with the law firm Stibbe, will co-organize a lunchtime lecture entitled: Ethics in International Disputes. This lecture will be delivered by Judge Jean-Pierre Cot, Judge at the International Tribunal for the Law of the Sea and former ad hoc Judge at the International Court of Justice, on Tuesday, 3 June 2014, 12h00 at the office of Stibbe, Central Plaza, Loksumstraat 25 Rue de Loxum, 1000 Brussels. Judge Cot’s address will be followed by comments in response by Françoise Lefèvre, Partner and Global Head of Arbitration at Linklaters in Brussels. Opening and closing remarks will be provided by ESIL President Laurence Boisson de Chazournes, Kathleen Claussen, ESIL member, and Bart Volders, Partner at Stibbe. A light sandwich lunch will be available. There is no cost to attend, but registration is required as space is limited. Please register at this website by 27 May 2014.

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Questions of International Law

Published on May 15, 2014        Author: 

We are happy to welcome a new online resource for the discussion of international law – Questions of International Law (QID). Here is how its editors describe the project:

Founded by a group of Italian scholars, QIL will be a new open-access online platform for international law scholarship, aiming to cross the boundaries between a traditional journal and a scholarly blog. The idea is to address a number of specific questions (hence the name) from at least two different, and generally opposing perspectives on a more or less monthly basis. QIL is divided into two sections. The first, “Zoom-in”, will focus on more specific legal issues, which will normally, but not necessarily, be connected with recent judicial and diplomatic practice. The second section, entitled “Zoom-out”, is designed to air wider debates and present symposia on theoretical or other major issues of international law. QIL will be primarily in English, but is open to contributions in French and Italian.

QIL intends to contribute to debate on issues of international law by opening its platform to comments and proposals from the community of international legal scholars at large.

The managing editors

Maurizio Arcari, Paolo Palchetti, Antonello Tancredi

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The Successes and Challenges for the European Court, Seen from the Outside

Published on May 14, 2014        Author: 

Helfer photo croppedLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law and Co-director of the Center for International and Comparative Lawat Duke University.

Cross-posted on AJIL Unbound.

In this post I wish to address the successes and challenges for the European Court of Human Rights (ECtHR), as seen from the outside.  I will take this opportunity to draw upon my research on human rights systems outside of Europe to explain how these systems have responded to some of the same challenges now facing the Council of Europe and the ECtHR.  My main contention is that international human rights courts, wherever they are located, require sustained political and material support if they are to thrive and grow over time.

I will illustrate my points with examples from the Inter-American and African courts of human rights and from lesser-known courts of sub-regional legal systems in Africa—the Economic Community of West African States (ECOWAS), the East African Community (EAC) and the Southern African Development Community (SADC).  The judges of these courts often look to ECtHR case law for guidance.  They are also aware of the high level of political and material support for the Strasbourg supervisory system.  Just as these courts have drawn inspiration from the ECtHR, so too those who will shape the Court’s long-term future should consider both the achievements and the challenges that these regional and sub-regional systems have faced.  In describing these positive and negative developments, I will focus on three issues—the evolution of human rights jurisprudence, the politics of compliance with court judgments, and government resistance and backlash.

I will begin with jurisprudential trends.  The innovative doctrines and principles pioneered by judges in Strasbourg are alive and well in other human rights systems.  Interpretive tools such as the evolutionary nature of human rights, the presumption that rights must be practical and effective, the creative and strategic approach to remedies, and cross-fertilization of legal norms are commonplace in the case law of all regional and sub-regional courts.  For example, Inter-American judges have applied these doctrines in several types of cases, including the obligation to investigate, prosecute and punish the perpetrators of past human rights violations, the prohibition of amnesty for such violations, the rights of LGBT persons, and affirmative measures to combat violence against womenMtikila v. Tanzania, the first merits judgment of the African Court of Human and Peoples’ Rights decided in 2013, analyzes the decisions of the other two regional human rights courts and the U.N. Human Rights Committee to support its conclusion that a ban on independent candidates standing for election violates the African Charter.  Among the most striking examples of creative legal interpretation appear in the case law of the East African Court of Justice and the SADC Tribunal.  The judges of those courts have cited references to human rights, the rule of law and good governance in the principles and objectives clauses of treaties establishing the economic communities to justify expanding their jurisdiction to include human rights.

These capacious interpretations have broadened the scope and reach of international human rights law.  But they have also engendered significant compliance challenges.  All other things equal, the more expansive and far-reaching remedies a court requires, the greater the likelihood of delay or resistance in implementing its judgments—in terms of political will, capacity, and commitment of resources.  The Inter-American Court has by far the most ambitious approach to remedies, often specifying in exquisite detail the measures states must adopt.  Governments have responded by implementing the easier and less politically costly remedies, with the result that partial compliance with the Inter-American Court’s judgments is now commonplace. Read the rest of this entry…

 

Announcing EJIL: Live!

Published on May 13, 2014        Author: 

The Editorial Board of the European Journal of International Law is delighted to announce the launch of the Journal’s official podcast, EJIL: Live! Regular episodes of EJIL: Live! will be released in both video and audio formats to coincide with the publication of each issue of the Journal, and will include a wide variety of news, reviews, and interviews with the authors of articles appearing in that issue.

The first video episode features an extended interview between the Editor-in-Chief of the Journal, Joseph Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours” appears in issue 25:1. The first audio episode features a shorter, edited version of the same interview, as well as conversations with the Journal’s Book Review Editor, Isabel Feichtner, and the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic.

Episodes of EJIL: Live! can be accessed, in both audio and video formats, via the EJIL website at www.ejil.org and EJIL:Talk! at www.ejiltalk.org. EJIL: Live! is also available by subscribing to our EJIL: Live! channel on YouTube for videos and our EJIL: Live! account on SoundCloud to listen to our audio podcasts. Additional, special episodes will also be released from time to time to address a range of topical issues.

Stay tuned in with EJIL: Live!

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R.M.T. v. The UK: Expanding Article 11 of the ECHR Through Systemic Integration

Published on May 12, 2014        Author: 

Court building exterior - autumn Medium PortraitOn 8 April 2014, the ECtHR rendered a decision in the RMT v. the UK. The case represents an example of using systemic integration as a tool of judicial activism. In applying Article 31(3)(c) VCLT, the Court expanded rights under Article 11(1) ECHR through international instruments that were not binding on all parties to the Convention. This approach adds to the perplexity of the effects of the principle of systemic integration.

In the RMT case, the ECtHR responded to the novel question of whether secondary action—or the so-called sympathy strike that is performed by a trade union in support of the cause of another group of strikers involved in a dispute—comes within the scope of Article 11(1) of the Convention. The Court ruled in the affirmative by relying exclusively on international instruments that recognize secondary action as part of trade union freedom. Although the Court considered that a different outcome could have been reached if one read the wording of Article 11(1) on its own (para 76), it deemed that

the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with… any relevant rules of international law applicable in relations between the parties, and in particular the rules concerning the international protection of human rights.

Referring to Article 31(3)(c) VCLT, the Court utilized the International Labour Organization (ILO) Convention No. 87 and the European Social Charter (ESC) to conclude that secondary action formed part of Article 11(1) of the Convention. The Court viewed that such reception of international law was in line with the Demir and Baykara judgment, which read in the relevant part as follows:

[t]he Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values.

Against that background, the Court continued, Read the rest of this entry…

 

Announcements: Workshop in Budapest–Imagining the Future; Workshop in Reykjavik

Published on May 10, 2014        Author: 

1. Imagining the Future: Conceptions of Risk and the Regulation of Uncertainty in International Law – Institute for Legal Studies, Centre for Social Sciences, Hungarian Academy of Sciences, Budapest, Hungary, 17 – 19 October, 2014. Increasingly, international legal arrangements imagine future worlds, or create space for experts to articulate how the future can be conceptualized and managed. With the increased specialization of international law, a series of functional regimes and sub-regimes has emerged, each with their own imageries, vocabularies, expert-knowledge and rules to translate our hopes and fears for the future into action in the present. At issue in the development of these regimes are not just competing predictions of the future based on what we know about what has happened in the past and what we know is happening in the present. Rather, these regimes seek to deal with futures about which we know very little or nothing at all; futures that are inherently uncertain and even potentially catastrophic; futures for which we need to find ways to identify, conceptualise, manage and regulate risks the existence of which we can possibly only speculate about. In short, international law is increasingly becoming the preserve of HG Wells’ ‘professors of foresight’. The central theme of this workshop is how the future is imagined, articulated and managed across functional fields in international law. The deadline for abstract proposals is 1 June 2014. More information on this project and contact details can be found here and here.

2. Call for Papers – The Changing Practices of International Law: Sovereignty, Law and Politics in a Globalising World, Reykjavik, 27-29 August 2014. This interdisciplinary workshop explores this paradox of international legalisation increasing the room for political manoeuvre in international relations by examining how the proliferation of legal regimes and its various mechanisms are utilized by sovereign states to bolster political positions and barter off responsibilities under international law. We invite papers that analyse how the increasing role of international law in international relations both changes the obligations of states but equally provides the backdrop for “creative legal thinking” and governmental strategies to instrumentalise legal discourse and/or design policies to circumvent or shift legal obligations otherwise owed. Read the full call for papers here.

 

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