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The Thickening of the International Rule of Law in ‘Turbulent’ Times

Published on March 8, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams (yesterday’s post here), and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In a thought-provoking post, Andreas Zimmerman traces the ‘(increasing?) tendency, at least by some States, to bluntly disregard international law, and to challenge its normativity as such’. In his conclusion, he focuses on the role of scholars which he frames as a ‘vocation … to carefully analyse to what extent, and for what reasons, the international rule of law may thus have become an endangered species, and how to protect it’. He proposes that ‘at least for the time being, [the role of scholars] is to carefully analyse, first, what the actual rules to be applied are, rather than aspiring to further ‘improve’ its content’. He argues that ‘[i]t is only this way that under the prevailing circumstances as many States as possible may be convinced that abiding by the international rule of law continues to be in their own interest’.

In the constraints of this short blog, I focus on the argument made by Zimmerman that scholars should desist from ‘aspiring to further ‘improve’ [the] content’ of the international rule of law. In the first part of this post, I note that scholars and practitioners often make arguments against the creation of new treaties. On their face, these arguments appear to support a focus on ‘the rules to be applied’. However, they are usually (but not always) made on pragmatic grounds of what is politically and strategically possible and there are many examples of the adoption of new treaties to fill gaps and for other purposes such as enforcement. This is particularly the case during ‘turbulent times’. Moreover, I suggest that it is difficult to draw a clear distinction between ‘the actual rules to be applied’ and ‘improvements’ to them as the application of existing norms typically involves elaboration and a thickening of international law. I therefore ask whether a distinction between application and improvement inadvertently risks stifling the role of international law in ‘turbulent times’ and undermining its expressive function.

I then question whether aspirations to ‘improve’ the content of the international rule of law are in any case a central cause of backlash. This is a key determinant to whether such ‘aspirations’ should be curbed in scholarship. Drawing on the burgeoning literature on compliance and implementation of international law, I suggest that the reasons states disregard and challenge international law are complex and varied and scholarship needs to work within this complexity, particularly from a multi and interdisciplinary perspective, if it is to effectively protect the international rule of law.

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Decline and crisis: a plea for better metaphors and criteria

Published on March 7, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s introductory post offers an intriguing mix of grand theme and technical detail. It certainly prompted me to reflect on changes both great and small, and their impact on international law. Unlike Monica Hakimi, I have no issue with the thrust of Andreas’ argument; I notably share the feeling that (if I read his opening Dylan quote correctly) animated his post: “the waters around us seem to have grown”.  Perhaps more than Andreas, I remain uncertain whether that feeling is well-founded. More particularly, I wonder how much of our current talk about crises, dark times, disorder & contestation, new isolationism is just noise, perhaps even a reflex. (Ours is a ‘discipline of crisis’ after all; we “revel” in a good one, as Hilary Charlesworth noted perceptively two decades ago.) And how much is based on real, measurable changes in what Andreas refers to as “the social fabric of international law”, or its role in international relations.  It is to this question that my comments in the following are directed. They are an attempt to take the debate further, and they seek to do so by making two pleas: a plea for better metaphors, and a plea for criteria as we discuss ‘International Law in Dark Times’. Read the rest of this entry…

 

International Law in “Turbulent Times,” Part II

Published on March 6, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with yesterday’s post, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In my previous post, I argued that international law does not foster cooperation at the expense of conflict. It fosters both simultaneously. It helps the participants overcome their differences and achieve a shared agenda, while helping them have and sharpen their disputes. The two kinds of interactions are symbiotic, not antithetical, so the fact that international law cannot stop global actors from inflaming or continuing to have a conflict is not good evidence of its weakness or decline; international law itself enables such interactions. Below, I take my argument a step farther. I claim that the conflicts that are had through international law are not just something to grin and bear; they are often quite productive for the legal project. I then return to the central question that Andreas posed: how might we assess whether international law is in decline?

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International Law in “Turbulent Times,” Part I

Published on March 6, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with yesterday’s post, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s interesting post raises foundational questions about international law’s role in the global order. In suggesting that international law is in decline, he assumes a particular vision of what international law does or should do, and thus of how we might evaluate its decay. The vision seems familiar. Many contend that the role of international law is to help global actors curb their disputes and promote their common interests, policies, or values. Of course, these actors will at times disagree. But according to this view, conflicts—normative disputes that manifest in materially relevant ways—are impediments to international law or problems for international law to overcome. They detract from or betray the limits of international law, at least insofar as they persist without final or authoritative resolution.

For example, Andreas suggests that states’ noncompliance with judicial decisions is evidence of international law’s weakness or decline. It shows that international law cannot effectively or legitimately resolve a dispute that is impeding the realization of the prescribed (and presumably shared) agenda. He thus ends his post by arguing that, “in turbulent times,” like the current one, international lawyers and legal scholars ought to insist that the law be applied as it is, and ought not push it in more contentious, value-laden directions that would further destabilize it.

Below and in a follow-up post, I draw on two of my recent articles to explain why that vision for international law is flawed. I then use this analysis to bring into sharper focus one of the principal challenges that international law now confronts.

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Times Are Changing – and What About the International Rule of Law Then?

Published on March 5, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

 

Come gather around people, wherever you roam
And admit that the waters around you have grown
And accept it that soon you’ll be drenched to the bone
If your time to you is worth savin’
Then you better start swimmin’ or you’ll sink like a stone
For the times they are a-changin’

Bob Dylan, The Times They Are Changing, 1964

In 2013, I, as a member of a group of Berlin-Potsdam-based international law scholars, together with colleagues from political science, applied for major funding for what we considered an evolving and growing research question in international law, namely whether the international legal order is facing a significant structural change, which we referred to as a possible ‘Rise or Decline of the International Rule of Law’. What we could not and did not expect (or in order to be cynical: did not hope for) was that major political developments such as, to name but a few, inter alia, the crisis in Ukraine; the election of US President Trump (as to effects on international law thereof see here) and his ensuing political steps such as the termination of US participation in the Paris Agreement to provide but one example; or the growing critique vis-à-vis the International Criminal Court, and other developments we have witnessed in recent years would prove that indeed this is a valid research question to be asked.

What is even more striking is that a significant number of academic events that have recently taken place such as a seminar on ‘International Law in a Dark Time’, a workshop on “International Organizations in Crisis? Rising Authority and Perceptions of Decline”, a conference on a “New International Order in an Isolationist World”, the 2018 ESIL Research Forum on ‘International Law in Times of Disorder and Contestation’ follow a similar, or at last closely related, research agenda. That clearly indicates that the debate as to the rise or decline of the international rule of law is in itself also on the rise, rather than in decline.

It is this setting that provides the background for this EJIL Talk contribution, in which I will set out some of my own ideas underlying this research focus, albeit obviously only with a broad brush, and hence also in a more general fashion, to arouse discussion. Read the rest of this entry…

 
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Announcements: CfS UCL Journal of Law and Jurisprudence; Screenings of It Stays With You by Geneva Academy and Birkbeck; University of Manchester Presidential Fellowship in International Law; Seattle Mass Atrocity and Human Rights Seminar; PhD Positions for ERC Funded Research Project “The Rules of Interpretation of Customary International Law”

Published on March 4, 2018        Author: 

1. Call for Submissions
 Volume 7, Issue 2 (Autumn 2018). The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and will be available open access. All submissions are assessed through double blind peer review. The Editorial Board is pleased to call for submissions for the second issue of 2018. The Board welcomes papers covering all areas of law and jurisprudence. We accept articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). 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 16 April 2018. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website. Please direct any further queries ucljlj.submissions {at} ucl.ac(.)uk.

2. Geneva Academy ‘It Stays With You’ Event. ‘It Stays With You’ is a documentary film about the impact on the local community of United Nations (UN) peacekeepers’ use of force in Cité Soleil, Haiti, during the period 2004-2007. Geneva Academy will be showing the film on 12 March 2018, 18:15-20:15. The film raises serious questions about the responsibilities of the UN with regard to non-targeted (but often foreseeable) deaths and injuries to civilians as a result of use of force by UN peacekeepers when carrying out mandated operations. The film is 50 minutes long, and will be followed by a panel discussion and questions from the audience. The event will be chaired by Professor Noam Lubell (University of Essex, Swiss Chair of International Humanitarian Law at The Geneva Academy). A light cocktail will follow the event. See here for further information.

3. Birkbeck University ‘It Stays With You’ Event. The film ‘It Stays With You: Use of Force by UN Peacekeepers in Haiti’ (2017) will also be screened in Birkbeck University of London, on March 17 at 2pm. Andy Leak, Prof of Francophone Studies (UCL) and secretary of the Haiti Support Group, will speak on the post screening panel and there will be a Q&A with the co-directors. For further information see here Read the rest of this entry…

Filed under: Announcements and Events
 
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Foreign Office Certificates and Diplomatic Immunity in the Assange Affair

Published on March 2, 2018        Author:  and

The Assange saga continues with recent decisions in the English Courts upholding the warrant for Julian Assange’s arrest. Dapo’s recent post on Ecuador’s purported appointment of Julian Assange as one of its diplomats to the UK considered the position on this issue as a matter of international law. However, a related issue is how the relevant provisions of the Vienna Convention on Diplomatic Relations (VCDR) would be applied if the issue were to arise in domestic proceedings in England and Wales. In other words, if Assange were to leave the embassy, and were to be arrested and prosecuted for failing to surrender, would he be able to rely, in an English court, on diplomatic immunity under the VCDR? Thinking through this question involves a degree of speculation, for we don’t yet know what the Foreign and Commonwealth Office’s (FCO) posture towards any such claim would be. We will assume, however, that the FCO will maintain an approach consistent with its statement (reported here) of 11 January 2018: ‘The government of Ecuador recently requested diplomatic status for Mr Assange here in the UK. The UK did not grant that request, nor are we in talks with Ecuador on this matter.’ In other words, we will assume that the FCO would not recognise Assange as a diplomat.

How the matter would be resolved in domestic English proceedings is a difficult question. It involves consideration of the respective roles of courts and the executive in matters of foreign affairs, the distinction between questions of fact and questions of law in giving effect to FCO certificates, and the potential continued application of the common law principle that the courts and the executive should speak with one voice.

The Diplomatic Privileges Act

As a matter of domestic law, the starting point is the Diplomatic Privileges Act 1964 (DPA), which gives effect to the VCDR. In thinking through how the Assange matter would proceed in a domestic court, Section 4, which sets out the role of the FCO in matters of this kind, is crucial:

‘If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact.’

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Security Council Resolutions as Evidence of Customary International Law

Published on March 1, 2018        Author: 

In 2012 the International Law Commission began to address one of the last major uncodified areas of public international law: how norms of customary law (CIL) are to be identified.  The exercise at the ILC has not been an easy one.  States commenting in 2016 on the Commission’s “draft conclusions” expressed concerns on a variety of issues.  One of the most contentious was the role of international organizations (IOs) in the creation of custom. 

The topic has been the subject of academic conferences at the University of Manchester, the University of Michigan and elsewhere, as well as a growing volume of law review commentary (see here, here, here, here and here).  And in early January, the United States submitted comments on the draft conclusions that were, to put it mildly, opposed to any role for IOs.  Closer to home, Kristen Boon, Isaac Jenkins and I have just published an article on the role of the Security Council in generating evidence of custom related to non-international armed conflicts (NIACs), an area of intense Council involvement. In this post I’ll describe the ILC’s view of IOs, the United States’ response, and then our affirmative arguments specific to the Security Council. Read the rest of this entry…