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Announcements: Call for Papers – ESIL Research Forum; ESIL, HSE and Jessup Russia Conference; Call for Papers – Inequality and Human Rights; International Organizations Symposium; Growing Competition Among International Courts and Tribunals Panel; International Law Weekend 2015

Published on October 31, 2015        Author: 

1. Call for Papers: ESIL Research Forum. The 2016 ESIL Research Forum will be held at Koç University Law School and the Center for Global Public Law in Istanbul from 21-22 April 2016. A Call for Papers has been issued for papers addressing the theme of the making of international law,  including issues such as: the interaction between sources of international law; customary international law, its formation and nature; new sources of international law in international law making – formalism and beyond; international organizations and international law making; non-state actors and international law making; Fragmentation and sources of international law; the legitimacy of the sources of binding obligation in international law; the role of comparative law in relation to international law making; and specific problems relating to international law making in particular subject areas such as human rights law, environmental law, international trade law, etc. There is a scholarship fund to provide partial financial support to presenters. For further details and information on submissions of abstracts, see here. The deadline for submissions is 1 November 2015.

2. ESIL, HSE and Jessup Russia Conference, Moscow. The European Society of International Law, the Higher School of Economics in Moscow, and Jessup Russia are organising a joint conference on 5 February 2016: The Evolutionary Interpretation of Treaties – The UN Charter and the European Convention on Human Rights Facing Modern Challenges. A Call for papers  has been issued, with a deadline for submission of 1 November 2015. Read the rest of this entry…

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Fighting Transnational Crimes at Sea under UNSC’s Mandate: Piracy, Human Trafficking and Migrant Smuggling

Published on October 30, 2015        Author: 

On 9 October 2015 the UNSC adopted S/RES/2240 (2015) authorizing states to exercise exceptional powers with respect to ships suspected of being engaged in human trafficking and migrant smuggling on the high seas off the costs of Libya. In the context of counter piracy in Somalia, the UNSC had already adopted a series of resolutions since 2008 allowing for exceptional actions to suppress transnational criminality at sea (see S/RES/1816 (2008), as most recently renewed by S/RES/2184 (2014) until 12 November 2015).

The fight against piracy seems to have a lot in common with the fight against human trafficking and migrant smuggling, and both show a dangerous trend towards the repression of transnational criminality through the recourse to military force. Indeed, UNSC resolutions have in both cases constituted the basis for naval military operations (current counter piracy operations are EUNAVFOR Operation Atalanta and NATO Operation Ocean Shield, whereas the EU naval operation against migrant smuggling is EUNAVFOR Med, recently renamed Operation Sophia)

Insofar as they provoke similar thoughts and concerns, a comparison between these landmark resolutions is therefore worthwhile.

The first issue of note concerns the identification of the situation triggering the UNSC’s powers under Chapter VII of the UN Charter. In the resolutions dealing with piracy off the coast of Somalia, piracy was not deemed to constitute a threat to international peace and security in itself (although it could have been). Rather, piracy was characterized as a factor exacerbating the situation in Somalia, which constituted a threat to international peace and security in the region. However, in resolution 2240 (2015) no mention is made of the situation in Libya as amounting to a threat to international peace and security. Such a qualification was indeed deleted from a previous draft (see What’s In Blue). Instead, it is the ‘recent proliferation of, and endangerment of lives by’ human trafficking and migrant smuggling in the Mediterranean Sea off the coast of Libya’ that is regarded as the situation that needed to be addressed through the UNSC’s action under Chapter VII. The resolution confines itself to expressing concern that the situation in Libya is being exacerbated by these crimes. It is therefore the repression of a crime itself, and its impact on human lives, which is used to ground the UNSC’s powers. Read the rest of this entry…

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A Bacon Dispute at the WTO? International Trade Regulation and the WHO Decision on Red Meat and Processed Meat

Published on October 28, 2015        Author: 

To the chagrin of meat-eaters worldwide, the International Agency for Research of Cancer (IARC) – the cancer agency of the World Health Organization – has just published a summary of over 800 studies, some of which decades-long, on the link between consumption of red meat and processed meat and cancer. The summary concludes that consumption of red meat is probably linked to cancer, and that consumption of processed meat is demonstrably linked to bowel cancer. Specifically, every 50 gram portion of processed meat consumed daily increases the risk of bowel cancer by a significant 18%. An average sausage weighs about 70-80 grams.

On the basis of this research, IARC experts decided to add red meat and processed meat to the list of potential cancer-inducing agents. Red meat, i.e. ‘all mammalian muscle meat, including, beef, veal, pork, lamb, mutton, horse, and goat’, was classified under Group 2A, as ‘probably carcinogenic to humans’. More worryingly, processed meat, including all red meat ‘that has been transformed through salting, curing, fermentation, smoking, or other processes to enhance flavour or improve preservation’, was classified as ‘carcinogenic to humans’ (Group 1).

With this decision, processed meat now ranks together cancer-wise not only with the usual suspects against which healthcare professionals advise us – alcoholic beverages, tobacco smoking, and solar radiation – but also with less pleasant substances such as mustard gas, arsenic, and plutonium. To leave no room for doubt, the Q&A clarifies that among the new known carcinogens are ‘hot dogs (frankfurters), ham, sausages, corned beef, and biltong or beef jerky as well as canned meat and meat-based preparations and sauces’. (Surprisingly, bacon was left out of this particular clarification.)

Few people, of course, were under the illusion that these products were good for your health. However, their classification as known carcinogens has significant public health implications, which may lead governments worldwide to consider adopting measures to prevent consumption, or at least excessive consumption, of processed red meat. As with regulatory measures aimed at lowering consumption of tobacco and alcohol, we can expect the new anti-bacon measures to become the subject of international litigation under trade and investment dispute settlement.

The question of how to give weight to health and other public interest concerns under investment law is still a tricky one. Under the law of the World Trade Organization (WTO), on the other hand, I believe the issue is essentially settled: once a decision of an internationally recognized scientific body such as the IARC exists to ground policies, WTO law will in principle pose no obstacle to even-handed measures aimed at reducing consumption or even removing the product from the market entirely. Read the rest of this entry…

 

European Court Tackles the Definition of Genocide

Published on October 27, 2015        Author: 

Last week the Grand Chamber of the European Court of Human Rights delivered a very interesting judgment in Vasiliauskas v. Lithuania, no. 35343/05, in which it examined in detail the definition of the crime of genocide. This is another one in a series of relatively sui generis cases, mostly coming from the Baltic states, dealing with historical crimes and pleaded under Article 7 ECHR, which incorporates the nullum crimen sine lege principle. The basic issue in the case was that the applicant, who worked for Soviet security services and was involved in the killings of Lithuanian partisans, was convicted of genocide by Lithuanian courts after the resumption of independence by the Baltic states, under the new Lithuanian Criminal Code which explicitly had retroactive application.

The question that the Court had to answer, therefore, was whether the applicant’s conviction for genocide was reasonably foreseeable, in light of international law as it stood in 1953, when the crime was committed. The Court comes out terribly split on the outcome, ruling by 9 votes to 8 that the conviction was not foreseeable and that there was a violation of Article 7.

The majority and the minority both agree that customary international law at the time prohibited genocide, in parallel to the 1948 Genocide Convention. They also agree that the list of protected groups under Article II of the Convention, which is reflective of custom, deliberately excluded political groups. Thus, a conviction for genocide would not have been sound if the Soviets were ‘merely’ destroying their political opponents in Lithuania. But where the case really gets interesting is in the analysis of the ‘in part’ element of genocidal intent. Here the minority believes that it is perfectly fine to first define the protected group as ethnic Lithuanians, and then further define a ‘part’ of that group as Lithuanian partisans or opponents of Soviet rule. The majority, on the other hand, believes that while the idea of the ‘part’ of a group could foreseeably be thought of in numerical terms in 1953, it was not foreseeable that the part could also be defined in qualitative terms, as emerged from the case law of modern international criminal tribunals (para. 177). This last point is I think highly problematic, since those individuals convicted for intending to destroy a part of a group in modern trials could then also say that their convictions violated nullum crimen, since their crimes also preceded in time the jurisprudence of the tribunals who convicted them – that this happened by 5 or 10 years rather than 50 seems entirely immaterial.

On the other hand, accepting the minority’s approach to the definition of a ‘part’ of a group would expand the scope of genocide far beyond the approach taken so far in international criminal law. For example, if the applicant had intended to kill all gay Lithuanians or all disabled Lithuanians this would, under the minority’s reasoning as far as I understand it, also constitute genocide, even though sexual orientation or disability are not covered by the Genocide Convention. Both groups would be ‘substantial’ in number, much like the partisans. But in any event the whole case is yet another demonstration of the highly problematic and morally arbitrary nature of the definition of genocide, which is unfortunately coupled with the peculiar political magic that the word has. An excessive focus on that crime by prosecutors, judges and in public discourse only serves to systematically devalue other crimes against international law, be it in Bosnia, Darfur, Cambodia, or indeed in Soviet-controlled Lithuania.

 

International Law’s Impartiality – Myth and Reality

Published on October 26, 2015        Author: 

Editor’s note: This post is a reaction to Frédéric Mégret’s article issued last week by the European Society of International Law – ESIL Reflection: In Search of International Impartiality.

Frederic Mégret offers us many questions about reconciling the project of international law with notions of impartiality. As he recognizes, impartiality is a multi-faceted concept, and our expectations for impartiality of various participants in the international legal process cannot be uniform. Mégret forces international lawyers to think hard about our biases as we “do” our lawyering. But impartiality needs to be broken down a bit more, and its institutional aspects made clearer. When this is done, some of the dilemmas and contradictions he identifies seem like less cause for existential worry among international lawyers.

Of the many ways to look at impartiality, two seem most relevant to the international lawyer.

First, there is the very general notion of impartiality as acting in a way in which we treat like cases alike: in this sense, impartiality is equivalent to the most minimal form of justice as recognized by both H.L.A. Hart (The Concept of Law, 3rd ed. (2012), p. 159) and R.M. Hare (Moral Thinking: Its Levels, Methods, and Point (1981), p. 157). This is in a certain sense the ideal of all law, domestic and international, and those who administer it.

Second, impartiality can equate with a general even-handedness and respect for the positions of two or more sides or claimants, up to the point where fidelity to other obligations – like the law – may require acting in favor of one side’s position. This sort of impartiality is expected of decision makers charged with applying the law, judicially or otherwise.

Beyond these two conceptions is the idea of impartiality at the centre of contemporary debates in moral philosophy. The impartial standpoint is one in which one’s connections to particular groups or people per se are not per se relevant to one’s judgments or actions, although such ties can be relevant if they can be justified from an impersonal standpoint. All three conceptions see impartiality as basically about not playing favorites. But of course what counts as impartial conduct depends upon a thicker theory of morality or rules of law. Read the rest of this entry…

 
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EJIL: Live! Joseph Weiler and Anne Orford Discuss Intervention in Civil War

Published on October 25, 2015        Author: 

In the latest episode of EJIL:Talk!, Professor Joseph Weiler, Editor-in-Chief of the European Journal of International Law, and Professor Anne Orford of the University of Melbourne discuss the project she is undertaking on ‘Civil War, Intervention, and International Law’, for which she was recently awarded an Australian Research Council fellowship. In probing the question of whether or when it is lawful for foreign actors to intervene in a civil war, the discussion touches on the importance, and lack, of universal principles to address the problem and the related issue of the involvement of regional organizations in civil war situations.

 
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Announcements: Georgia Law School Lecture; Conference on Defence Counsel at International Criminal Courts and Tribunals; Francis Lieber Prize 2016

Published on October 24, 2015        Author: 

1. Georgia Law School Lecture. The UN Charter turns 70 this week, and the University of Georgia School of Law is joining in the global celebration – it’s also the 38th birthday of the school’s Dean Rusk International Law Center. Monday, October 26, from 4-6 p.m., will mark the rededication of the Louis B. Sohn Library on International Relations in its new home, in the renovated Center. Dr. Kannan Rajarathinam (Georgia Law LLM’88), Head of Office, UN Assistance Mission for Iraq, Basra, will speak on a critical topic: “The United Nations at 70: Pursuing Peace in the 21st Century.” Also giving remarks – on Georgia Law luminaries like Professors Sohn, Professor and former U.S. Secretary of State Rusk, Professor Gabriel Wilner, and Professor Sigmund Cohn – will be Dean Peter B. “Bo” Rutledge, Associate Dean Diane Marie Amann, Professor Harlan Cohen, and alums Dorinda Dallmeyer and Ken Dious. External cosponsors for the event include the American Bar Association Section of International Law, the American Branch of the International Law Association, and the American Society of International Law, for which Professor Sohn served, respectively, as Chair, Vice President, and President. Those titles signal the 20th C. influence of Professor Sohn, who, inter alia, helped draft the UN Charter, advised UN agencies, and chaired the conference that led to conclusion of the UN Convention on the Law of the Sea. Further details can be found here, and the event will be livestreamed here.

2. Conference on Defence Counsel at International Criminal Courts and Tribunals. The Association of Defence Counsel Practising before the ICTY and Representing Counsel before the MICT (ADC-ICTY) is pleased to announce its annual conference, to be held on 5 December 2015 in The Hague. This one-day conference will focus on the position of defence counsel at international criminal courts and tribunals, and will feature a keynote speech and four distinguished panels on various topics in relation to the role and importance of the Defence. For further information and to register, please contact the ADC-ICTY Head Office at adcicty.events {at} gmail(.)com, and see here.

2. Francis Lieber Prize 2016. The American Society of International Law’s Lieber Society on the Law of Armed Conflict is inviting contributions for the Francis Lieber Prize 2016.  Both monographs and articles (including chapters in books of essays) are eligible for consideration. Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate. Submissions are due by 9 January 2016. Full details of criteria and the application process can be found here.

 

 

 

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From Passive Consent to Self-Defence after the Syrian Protest against the US-led Coalition

Published on October 23, 2015        Author: 

Since September 2014, the US and some Arab States have conducted air strikes against Islamic State (IS) in Syria. They have recently been joined by some Western States, including the UK, Canada, Australia and France. The justification given by those States and the US for their military operations in Syria is based on the right of self-defense, enshrined in Article 51 of the UN Charter. Such justification has been contested by some scholars. Yet, this does not mean those air strikes should be considered unlawful. It is argued that they could be justified by the “passive consent” of Syria.

  1. The end of passive consent

Contrary to their reaction to air strikes conducted by States such as Turkey, Syrian authorities did not formally oppose air strikes by the US-led coalition after they occurred – although some limited objections have been formulated in the media. The Assad regime even seems to have welcomed this international effort to fight against IS and expressed its readiness to cooperate with such effort. As a result, although consent has never been expressly given by the Assad regime to the US-led coalition’s airstrikes, the absence of protest by this regime could be interpreted as “passive consent” thereto. Such interpretation could find some support in the DRC v. Uganda case (para. 46), in which the ICJ inferred the DRC’s consent to the presence of Uganda troops on its soil from the absence of any objection to such presence.

Yet, regardless whether “passive consent” is a valid legal basis for justifying the airstrikes conducted by the US-led coalition against IS in Syria, such legal basis seems now to be in great trouble. Read the rest of this entry…

 

The (Non-)Judicialisation of War: German Constitutional Court Judgment on Rescue Operation Pegasus in Libya of 23 September 2015 (Part 2)

Published on October 22, 2015        Author: 

Editor’s Note:  This is the second of two posts discussing the ‘Rescue Operation Pegasus’ Judgment of the German Federal Constitutional Court.

4. Assessment

The legal reasoning of the German Federal Constitutional Court in the Rescue Operation Pegasus Judgment is quite obviously inspired by the desire to avoid impractical results. It is somewhat in tension with the Court’s insistence on an otherwise joint and unified power of Government and Parliament (“Entscheidungsverbund”; para. 83).

Still, I find the teleological argument fully convincing: On the premise that Parliament has the war power because it is supposed to co-decide in the face of political and military risk but not to assess the lawfulness of the operation, an ex post “ratification” does not make sense.

Importantly, in the different factual situation of an ongoing operation, parliamentary approval would have to be sought, and its refusal would deploy its effect ex nunc and oblige Government to withdraw troops (para. 87).

It is also worth noting, that – like a counter-point to the actual holding against Parliament − the Court by way of dicta highlighted and strengthened parliamentary powers in numerous respects. Read the rest of this entry…

 

The (Non-)Judicialisation of War: German Constitutional Court Judgment on Rescue Operation Pegasus in Libya of 23 September 2015 (Part 1)

Published on October 21, 2015        Author: 

Editor’s Note: This is the first of two posts discussing the ‘Rescue Operation Pegasus’ Judgment of the German Federal Constitutional Court.

In the middle of the civil war in Libya in 2011 (before the start of the UN authorised military operation), the German Chancellor, following the proposals made by the Ministers of Foreign Affairs and of Defence, decided to evacuate 132 persons (German and other civilians) from an industrial camp in Nafurah, 400 km south of Benghazi. The operation – dubbed “Operation Pegasus” – succeeded without any combat action.

Subsequently, a group of members of the German Bundestag seized the German Federal Constitutional Court and argued that the constitutional and statutory division of powers among the Executive and the Legislative branch when it comes to deciding about military action not only demands parliamentary ex ante approval but also, in those urgent cases where the Executive is allowed to decide on its own, requires a formal ex post approval. This claim was rejected by the Court (judgment of the Second Senate, 23 September 2015, No. 2 BvE 6/11).

1. The legal framework and background

Germany is probably the state with the most detailed legal regime on parliamentary involvement in decisions on the use of military force abroad. Read the rest of this entry…

 
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