Home Articles posted by Dapo Akande

Discussion of Stefan Talmon’s “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion”

Published on November 27, 2015        Author: 

I am delighted to announce that, over the next few days, we will be hosting a discussion of Professor Stefan Talmon’s (University of Bonn) recent article – “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion” – which was published a few months ago in (2015) EJIL Issue no. 2 . As he explains in the abstract:

This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law.

Commenting on the article will be Sir Michael Wood, who is the International Law Commission’s Special Rapporteur on “The Identification of Customary International Law”, writing together with Omri Sender (of the World Bank); Harlan Grant Cohen (University of Georgia); and Fernando Lusa Bordin (University of Cambridge). They have all previously written brilliantly on customary international law. We are grateful to each of them for taking part in this discussion. As usual, comments by readers are welcome. Stefan’s article is freely available on the EJIL and OUP websites so do take a look at it in advance of the discussion.


China’s View of International Litigation: Is the WTO Special?

Published on November 13, 2015        Author: 

Yesterday, Geraldo Vidigal put up a really interesting post looking at recent patterns of use of the World Trade Organization’s dispute settlement system. One thing that was particularly striking to me was the extent to which China has participated in the WTO dispute settlement system given its previous position on resolution of disputes by international tribunals. Geraldo’s chart of the latest 100 disputes at the WTO shows that only the United States, the EU and Japan have initiated more cases at the WTO in recent years than China (with Japan initiating just one more case than China in this period). Given that the WTO system is the most widely used inter-state dispute settlement system, it might not even be an exaggeration to say that: in terms of numbers of cases brought before international tribunals by states, China is one of the most enthusiastic state users of international tribunals! Of course, that enthusiasm is only before one particular system.

In October 2010 I posted here on EJIL:Talk a piece titled “Is China Changing its View of International Tribunals?“in which I noted that China’s view on international tribunals more broadly seemed to be changing. At the time, I noted China’s participation in the Kosovo Advisory Opinion at the ICJ, which was the first time that the People’s Republic appeared in oral hearings before the ICJ. I also pointed out China’s participation, around the same time, in the written and oral phases of International Tribunal for the Law of the Sea’s (ITLOS) first advisory proceedings –  the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber). In 2014, China submitted a substantial written statement in the Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) though it did not take part in the oral hearings.

Of course, we have non-participation by China with respect to the United Nations Convention on the Law of the Sea Annex VII arbitration initiated by the Philippines (in respect of which the tribunal issued an award on jurisdiction a couple of weeks ago). Read the rest of this entry…


Joint Series on International Law and Armed Conflict: Querying the Roles for Human Rights Bodies in the Interplay between International Human Rights Law and International Humanitarian Law

Published on September 11, 2015        Author: 

As noted earlier this week, EJIL:Talk! together with Lawfare and InterCross are running a joint series over the next few weeks on International Law and Armed Conflict. The latest post in the series, over at Lawfare, is by Joanna Harrington, (Professor of Law at the University of Alberta). She begins her post by noting that:MG0146cropped

“Complexities remain with respect to the interaction between the fields of international human rights law (IHRL) and international humanitarian law (IHL) in situations of armed conflict. Focusing on the human rights side of this interplay, there are questions about which human rights obligations apply, to what extent, and to whom, as well as questions about the role for international human rights monitoring bodies. Should the human rights bodies, for example, see their role as one of shaping the contours of IHL?

The words “human rights body” can easily be misread as if to treat all human rights bodies as being the same, with the same functions, and with the same effect or influence by virtue of being a “human rights body”. Included within this term are courts and commissions, committees and working groups, but from a Canada/U.S. perspective, there is interest in those human rights bodies that are not courts, since both countries cannot be subject to the European Court system, and nor have they accepted the jurisdiction of the Inter-American Court of Human Rights.

The Question of an Accountability Gap

Often these discussions begin by identifying a perceived accountability gap, drawing attention to the lack of an international adjudicative body to provide authoritative interpretations of the Geneva Conventions and Protocols. Having identified a gap, it is assumed that the gap must be filled. But there are times in international negotiations when gaps serve a purpose, perhaps when efforts to achieve agreement on a particular aspect or mechanism have failed.”

Read more at Lawfare


Embedded Troops and the Use of Force in Syria: International and Domestic Law Questions

Published on September 11, 2015        Author: 

Editor’s Notes: This post was written before the announcement earlier this week that the UK had conducted a drone strike against members of Islamic State in Syria in August. Commentary on that latest development will follow later.

As Rob McLaughlin noted in his post, UK military pilots, (as well as other UK military personnel), embedded with US and Canadian forces have taken part in air strikes in Syria against Islamic State (or ISIL) targets. It has also been reported that Australian pilots embedded with US forces are also due to start taking part in that campaign in Syria. In a written Ministerial Statement of 20 July, the UK Secretary of State for Defense confirmed that: “A small number of embedded UK pilots have carried out airstrikes in Syria against ISIL targets: none are currently involved in airstrikes.”

The involvement of UK military personnel in air strikes in Syria would ordinarily raise a number of international law questions: (i) Is the UK to be considered as using force in Syria, and, if so, what is the legal basis for such action?; (ii) is the UK to be regarded as a party to one or more of the armed conflicts taking place in Syria?; (iii) would the UK bear responsibility if any violations of international law, occur in the conduct of those air strikes? Although these are all important questions of international law, they have not been all that significant in this case. These questions have not been of great importance in the context of the air strikes conducted by embedded personnel largely because (in the case of the first two) they arise apart from the participation in those airstrikes, and because (in the case of the third), it has not been suggested that violations of international humanitarian law occurred in the conduct of those strikes.

In the UK, the significance of UK forces acting in Syria has arisen largely because of domestic political and legal considerations that I set out below. However, as will be seen those domestic legal considerations are intertwined with questions of international law and in particular, with the question whether the UK pilots who have acted in Syria are to be considered as part of the armed forces of the UK, or rather as part of the armed forces of the countries in whose forces they are embedded (the US or Canada). This question, which is important domestically, raises the international law question that Rob McLaughlin refers to: are the acts of those UK pilots attributable, as a matter of international law, to the UK, or attributable only to the US and Canada?

The UK and the Legality of the Use of Force in Syria

The UK has already indicated that it would be prepared to use force against Islamic State in Syria and it has been rumoured that the government would seek parliamentary approval for such a use of force this autumn, perhaps even, this month. In any case, even prior to the revelation that UK embedded personnel had acted in Syria, the UK had already engaged in acts which amount to a use of force in Syria as it is involved in training and equipping Syrian rebel forces Read the rest of this entry…


Transatlantic Workshop on International Law and Armed Conflict: Introduction to a Joint Blog Series

Published on September 9, 2015        Author: 

Over the next few weeks, three blog –  Lawfare, InterCross (the blog of the ICRC) and EJIL:Talk! – will host a joint blog symposium on International Law and Armed Conflict. The series will feature posts by some of the participants at the Third Transatlantic Workshop on International Law and Armed Conflict, which was held at the University of Oxford this summer. As with previous years, the Transatlantic Workshop brought together senior government officials, senior military lawyers and leading academics from the United Kingdom, United States, Canada, Israel and Switzerland. The two day workshop focuses each year on a range of critical issues in the law of armed conflict. This summer, there was a particular focus at the workshop on the judicial application of international humanitarian law, with sessions dedicated to the application of the law of armed conflict by human rights tribunals; international criminal tribunals; and by national courts. In addition, the workshop also engaged in discussions on direct participation in hostilities; humanitarian access in armed conflict; and foreign intervention in non-international armed conflicts.

The first post in the series – “Direct Participation in Hostilities- What are the Issues and Where are the Controversies?” – by Marco Sassoli (University of Geneva) is now available on InterCross. In his concluding paragraph he argues that:sassoli_marco220

” . . . it is this preliminary question whether and in which circumstances someone who is not a combatant may be targeted even while not DPH [taking a direct part in hostilities] that is at the heart of the controversies surrounding the ICRC DPH Guidance, rather than the question of what conduct actually constitutes direct participation. On this latter question the Guidance has suggested a definition. Today several experts and officials criticize some aspects of this definition. Experts representing militaries are however mostly obsessed by – and object to – first, the application, by the ICRC, of the principle of military necessity to the targeting of individuals directly participating in hostilities and second, by what they refer to as the ‘revolving door’ phenomenon. That a civilian regains protection once s/he no longer directly participates, regardless of whether s/he may possibly directly participate in the future, is however, an unavoidable result of the clear wording of Article 51(3) of Protocol I and of Art. 13(3) of Protocol II. If the fact of having directly participated in hostilities once or several times had the effect of turning civilians into combatants or members of armed groups, the crucial criteria relevant to determining whether an individual is a member of an armed group – belonging, responsibility and command – would become irrelevant. From a pragmatic point of view, I wonder how a soldier confronted with a civilian not directly participating can be expected to know that the individual did previously engage in direct participation and/or is likely to do so again. To make such speculations the basis for decisions over life or death is dangerous, including for the great majority of harmless civilians.”

Read the rest of this entry…


Introducing a new EJIL:Talk! Editor – Diane Desierto and new Associate Editors – Geraldo Vidigal and Mary Guest

Published on August 27, 2015        Author: 

I have the pleasure of introducing new members of the EJIL:Talk! editorial team. Diane Desierto, who has already served as a contributing editor of the blog for the past two years, is now a full editor of the blog. Diane is Associate Professor of Law and Michael J. Marks Distinguished Professor in Business Law at the William S. Richardson School of Law at the University of Hawaii, where she is also Co-Director, ASEAN Law & Integration Center (ALIC). She has wide-ranging interests in international law, including various aspects of International Economic Law (World Trade Law, International Investment Law, International Finance Law, Law and Development), International Dispute Settlement, International Human Rights and Humanitarian Law and Association of Southeast Asian Nations (ASEAN) Law. Her writing on the blog is sufficient introduction of the quality and breadth of her scholarship.Diane Desierto

Last week, I wrote about Sadie Blanchard’s departure from the role of Associate Editor and commenting that she will be a hard act to follow. Well, we have not one but two new Associate Editors. They are Geraldo Vidigal and Mary Guest.

Geraldo Vidigal is a Senior Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.Vidigal_Geraldo_6-to-5_e40a40dc34 He has a PhD in Law from the University of Cambridge, an LLM from the Sorbonne Law School (Paris 1) and an LLB from the University of São Paulo. Prior to joining the Max Planck Institute, he was a Jean Monnet Fellow at the Global Governance Programme of the European University Institute in Florence and a Marie Curie Fellow within the DISSETTLE FP7 Research Project at Bocconi University, Milan. Geraldo’s research interests include international economic law and international dispute resolution, with a focus on the role of international courts and tribunals in the establishment and enforcement of international obligations. His publications include an article in the European Journal of International Law as well as a recent piece on the blog.

Mary Guest, comes to the blog with over 10 years experience in legal practice both as a senior associate at Clifford Chance and as Head of Legal – Commercial at the English Football Association. She has recently turned to international law and human rights law and has a Masters in International Law (with overall distinction) from the University of Cambridge.mary guest

In addition to writing their own pieces on the blog, Geraldo and Mary will help assist with approving and editing submissions, organizing symposia and book/article discussions; and collating and publishing news items

We welcome them all and look forward to their contributions to the blog.


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Thank You Sadie Blanchard!

Published on August 21, 2015        Author: 

Exactly two years ago today, I wrote a post introducing Sadie Blanchard as a new (and our first) EJIL:Talk! Associate Editor. Today, I write to announce that Sadie is leaving EJIL:Talk! after a couple of years of the most wonderful service. Sadie leaves us to return to her alma mater, Yale Law School, where she has taken up a position as Research Scholar in Law and Private Law Fellow and will work in helping to run the newly established Yale Law School Center for the Study of Private Law. Her work at the Center will include her continuing research and scholarship on arbitration, including investment Marian Majik

I first met Sadie 7 years ago when she took a class of mine at Yale Law School. She was an excellent student and one of the leading lights in the Yale Forum on International Law. It was a pleasure to have her work for the blog and she has done a tremendous job! Much of her work has been behind the scene: editing (and improving!) posts, arranging book discussions, discussion on articles (like this week’s discussion on the article by Jan Klabbers), liaising with contributors, sorting out technical issues – all the things that make the blog work well! We are immensely grateful to her for all her work. She will be a very hard act to follow!

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Our Most Read Posts in 2014

Published on December 31, 2014        Author: 

This has been another successful year for EJIL:Talk as readership of the blog continues to grow. We are grateful to you, our readers, for coming back to us again and again. A new addition to the European Journal of International Law this year has been the introduction of EJIL:Live! which is a series of video and audio podcasts released at the same time as the publication of each quarterly issue of the Journal. The video and audio episodes feature an in-depth discussion between the authors of one article that appears in the issue and EJIL’s Editor in Chief, Joseph Weiler. I have to say, on a personal note, that I have thoroughly enjoyed those discussions. To my mind, the spoken word, and the back and forth of dialogue, adds much value to the written text in the journal. They greatly enrich critical understanding of the author’s argument and also of the area in which it is situated. The authors not only explain the argument in their article, but also discuss the inspiration and motivations for writing the piece. In the discussion, the arguments are not only explored and challenged, but the authors are also pushed to explain the significance of the argument – why does it matter? how does it matter? There is much to be gained from listening or watching. In addition to discussion with authors, the audio podcasts also include a variety of news and reviews (including discussions from or about the blog).

EJIL: Live Extras! are shorter, in-a-nutshell, episodes which address a variety of topical and interesting issues. Earlier this month 3 episodes of EJIL:Live Extra! became available for viewing. They are interviews with Aharon Barak, former President of the Israeli Supreme Court on the Israeli Supreme Court’s approach to standing and justiciability; Brian Leiter, University of Chicago on whether freedom of religion deserves special protection; and André Nollkaemper, President of the European Society of International Law (ESIL) on the first 10 years of ESIL.

Below are our 20 most read posts of 2014. As is apparent from simply glancing at the list, Russia’s intervention in and subsequent annexation of Crimea was the issue that generated most interest among our readers this year.  We wish you a very Happy New Year and a happy 2015!

1. Daniel Wisehart, The Crisis in Ukraine and the Prohibition of the Use of Force: A Legal Basis for Russia’s Intervention?

2. Nico Krisch, Crimea and the Limits of International Law

3. Christian Marxsen, Crimea’s Declaration of Independence

4. Dapo Akande, The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect

5. Jure Vidmar, Crimea’s Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo

6. Douglas Guilfoyle, So, you want to do a PhD in international law?

7. Marko Milanovic, Crimea, Kosovo, Hobgoblins and Hypocrisy

8. Philip Leach, Ukraine, Russia and Crimea in the European Court of Human Rights

9. Lauri Mälksoo Crimea and (the Lack of) Continuity in Russian Approaches to International Law

10. Dapo Akande, Appeal from the Ukrainian Association of International Law Read the rest of this entry…

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Patrick Robinson of Jamaica Elected to the ICJ

Published on November 18, 2014        Author: 

Judge RobinsonLast week, I wrote about the elections held last Monday, by the United Nations General Assembly and Security Council, to fill 5 upcoming vacancies on the International Court of Justice  As I reported, both bodies were able to agree on the election of four judges, but were unable to agree on the filling of the fifth vacancy. In several rounds of balloting over two days, Patrick Robinson from Jamaica (currently a Judge and former President of the International Criminal Tribunal for the former Yugoslavia) consistently received a majority in the General Assembly However, it was Susana Ruiz Cerutti, the current Legal Adviser to the Ministry of Foreign Affairs of Argentina and former Foreign Minister of that country, who obtained a majority in the Security Council. On Tuesday last week, as noted by Ambassador (and Professor)Kriangsak Kittichaisaree in his comments to my previous post , Argentina withdrew the candidacy of Susana Ruiz Cerutti.

Yesterday, the General Assembly and the Security Council, again meeting separately but concurrently, elected Patrick Robinson as Judge of the ICJ. He obtained all 15 votes in the Security Council and 185 votes in the General Assembly. As previously noted by Ambassador Kittichaisaree in his comments to my previous post , the election of Judge Robinson means that 4 out of the 5 judges elected or reelected to the ICJ, in this election cycle, are or were members of the International Law Commission. By my calculation practically half of the judges of the ICJ (in its new composition starting in February 2015) will have been members off the ILC prior to election to the ICJ.  Judge Robinson’s elections also adds to the growing number of ICJ judges with prior international judicial experience – a trend that I noted three years ago (here and here).


The United States and the Torture Convention: A Memo from Harold Koh

Published on November 11, 2014        Author: 

On Wednesday and Thursday this week, the United States will appear before the United Nations Committee Against Torture for a discussion of the United States’ Third to Fifth Periodic Reports under the Convention Against Torture and Other Cruel and Degrading Treatment. If the size and membership of the United States’ delegation to the Committee is anything to go by, the US is taking the session very seriously indeed. The US delegation includes high level representation from the State, Justice, Defence, Homeland Security and other Departments of the Federal Government as well as representatives of states. The dialogue between the US delegation and the Committee will be webcast here.

One key issue that will come up in the discussion is whether the US accepts that the Convention applies to conduct  of its officials and agents beyond its territory. In the list of issues that the Committee presented to the US in advance of the submission of its report (a list that was prepared five years ago now!), the Committee asked the US to:

“Please provide updated information on any changes in the State party’s position that the Convention is not applicable at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and is not without prejudice to the provisions of any other international instrument, pursuant to article 1, paragraph 2, and 16, paragraph 2, of the Convention.”

In its report, the United States was evasive on the question of the extraterritorial application of the Convention. It stated:

“6.  . . . It should be noted that the report does not address the geographic scope of the Convention as a legal matter, although it does respond to related questions from the Committee in factual terms.”

However, it then went on to note that:

“13. Under U.S. law, officials of all government agencies are prohibited from engaging in torture, at all times, and in all places, not only in territory under U.S. jurisdiction. Under the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-163, 42 U.S.C. 2000dd (“No individual in the custody or under the physical control of the U.S. Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment”), every U.S. official, wherever he or she may be, is also prohibited from engaging in acts that constitute cruel, inhuman or degrading treatment or punishment. This prohibition is enforced at all levels of U.S. government.”

Thus, while the US was indicating that US law and policy forbid torture by US officials wherever committed, it failed to acknowledge that the treaty obligations went this far. The US delegation will no doubt be asked to clarify its position before the Committee. A recent report in the New York Times indicates that there is an internal debate in the US administration about whether to abandon the US’ previous position that that provisions of the Convention Against Torture are restricted to acts on US territory. Apparently, while State Department lawyers are  pushing for a change in this position,

“military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture . . .”

In a recent intervention in this debate, Harold Koh, Sterling Professor of International Law at Yale Law School and, Legal Adviser to the US State Department in first term of the Obama Administration, last week, wrote a “Memo to the President: Say Yes to the Torture Ban,” in Politico Magazine. Read the rest of this entry…