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In memoriam: Professor Sir Nigel Rodley

Published on February 2, 2017        Author: 

There are international lawyers who make outstanding contributions to their fields. And there are international lawyers who actually create the fields we study and insert life into them.

Professor Sir Nigel Rodley was both.

Nigel’s scholarly interests long focused on the place of human rights in international law and the development of human rights law within international law.

nigel_rodley_landscapeHis early work on international law was at the intersection of the law on the use of force and human rights. His 1973 American Journal of International Law article, co-authored with Tom Franck, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force remains the authoritative piece on the legality of unilateral humanitarian intervention under international law. His 1979 piece ‘Enhancing Global Human Rights’ in Foreign Affairs, co-authored with Louis Henkin, Richard Falk and Jorge Dominguez, asked how global human rights could be enhanced against the background of UN human rights treaties coming into force.

Nigel’s contribution to human rights in international law continued throughout his career. By the end of the 1980s, Nigel focused on the role of the International Court of Justice in advancing human rights in international law. His 1992 edited book To Loose the Bands of Wickedness: International Intervention In Defence of Human Rights – the astute and witty title as always a hallmark of Nigel’s writing – was one of the first to spot the then unexpected sea change in the involvement of the Security Council in humanitarian interventions. In 2007, revisiting humanitarian intervention in the aftermath of Kosovo in an article we co-authored, Nigel perceptively outlined the methodological challenges of international law in legalizing humanitarian intervention.

It goes without saying that general international law and how human rights figure in it would have benefited from more contributions from Nigel. His calling, however, was elsewhere. Read the rest of this entry…

Filed under: Announcements and Events
 

Tears in Our Eyes: Third State Obligations in International Law

Published on July 30, 2015        Author: 

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. Read the rest of this entry…

 

Third Time Lucky? The Dynamics of the Internationalisation of Domestic Courts, the Turkish Constitutional Court and Women’s Right to Identity in International Law

Published on January 29, 2014        Author: 

On 19 December 2013 the Turkish Constitutional Court delivered what some local journalists are calling a ‘revolutionary’ judgment. The revolutionary judgment in question recognised that women indeed have the right to retain, if they so wish, their last name when they get married. Of course, in the grand scheme of women’s rights, this is far from ‘revolutionary’. It is also not trivial.  A woman’s right to choose her name is the tip of the iceberg in her struggle to stand as an equal in family relationships. What it does is challenge the deep and entrenched patriarchal stereotype of the family as a unit joined under a single name – the man’s. It also emphasises the importance of name for women’s self-development – whether married or single.

The substantive advancement of women’s rights by this decision aside, the judgment also tells us a tale of the reception of international law by domestic courts. In particular, it offers us clues for comparatively studying how high courts negotiate the tension between progressive international legal commitments and, frankly, backward domestic laws tacitly backed up by the domestic legislature and executive.  This is the third time (yes, indeed) that Turkey’s Constitutional Court dealt with this case – each time with identical facts (a woman asking to keep her name upon marriage) – and the second time it has done so since the European Court of Human Rights delivered a violation judgment against Turkey on the very same issue.  In the first two instances, in 1998 and 2011, the Turkish Constitutional Court decided that the Civil Code which requires a woman to change her name upon marriage was not unconstitutional. In the third case, it did find it unconstitutional.

Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights
 

Syrian and Turkish Military Activities and International Law

Published on October 11, 2012        Author: 

Dr. Başak Çali, Senior Lecturer in Human Rights and International Law, Department of Political Science, University College London

A shell fired from Syria into the back garden of 38 year old Zeliha Timuçin, in the  town of Akçakale, Turkey on 3 October 2012 killed her, her 3 children and her sister in law. The Turkish military retaliated by firing artillery salvos against Syrian targets over 3 days. This raises important, but, thus far, largely unaddressed, legal questions about what international law is applicable to both the shelling by Syria, and, crucially, Turkey’s response. The identification of applicable international law, in turn, has important consequences for the attribution of responsibility for the killing of these five civilians.

The line taken by the Turkish government immediately after its retaliatory attacks on Syria on 3 October 2012 was that its actions were ‘in accordance with international law and the rules of engagement of the Turkish Armed forces’. No clarification about what body of international law was forthcoming. Given that Turkey used military force, it could only be referring to the right to self-defence under Article 51 of the UN Charter and customary international law. Taking it further, and assuming there was an armed conflict between Turkey and Syria within the sense of Common Article 2 of the 1949 Geneva Conventions, principles of proportionality and military necessity with regard to targeting decisions under international humanitarian law would also apply.  The reference to these two bodies of law assumes that events have indeed triggered their applicability. In reality, this is far from clear.

Has there been an armed attack against Turkey within the framework of Article 51 of the UN Charter?

The reaction of the NATO at its emergency session in Brussels on 3 October 2012  qualified the shelling as an “aggressive act against an ally” – thus supporting the view that Turkey was acting in self-defense under the ius ad bellum. Read the rest of this entry…