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UN Human Rights Council Adopts Resolution on a Special Rapporteur for Privacy

Published on March 26, 2015        Author: 

The Council today adopted by consensus the resolution on privacy in the digital age, which includes the creation of a new special procedure. Bearing in mind the wide scope of the right to privacy, this SR is sure to be a mega-mandate. The resolution is available here; Privacy International press release here.

 
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The Power of Citizenship Bias

Published on March 23, 2015        Author: 

Cross-posted on Lawfare.

Following up on my post from last week on the report of the Intelligence and Security Committee (ISC) of the UK Parliament, which inter alia recommended that British law for the first time introduce distinctions between citizens and non-citizens for the purpose of regulating electronic surveillance, I’d like to briefly comment on another relevant development. Amnesty International last week also published the results of a major public opinion poll conducted in 13 countries, in which 15,000 respondents were surveyed on a number of questions regarding surveillance. The upshot of the poll is that there is strong opposition to US mass surveillance programs in all of the countries surveyed, and this is also how Amnesty chose to present the results (Amnesty’s press release is available here; the full results are available here; an analytical piece by Chris Chambers, one of the researchers on the project, is available in The Guardian).

What I found most interesting about the poll are the responses regarding the question whether the permissibility of surveillance should depend on the citizenship of the target. As Chris Chambers explains:

Are people more tolerant of the government monitoring foreign nationals than its own citizens?

Yes. In all surveyed countries, more people were in favour of their government monitoring foreign nationals (45%) than citizens (26%). In some countries the rate of agreement for monitoring foreign nationals was more than double that of citizens. For instance, in Canada only 23% believed their government should monitor citizens compared with 48% for foreign nationals. In the US, 20% believed their government should monitor citizens compared with 50% for foreign nationals. These results suggest the presence of a social ingroup bias: surveillance is more acceptable when applied to “them” but not to “us”.

general attitudes to surveillance

 

In every country, people were more tolerant of surveillance directed toward foreign nationals than toward citizens. Illustration: Chris Chambers

We can also look at this ingroup bias in a different way – by specifically counting the number of people who disagreed with government surveillance of citizens while at the same time agreeing with surveillance of foreign nationals. In most countries, fewer than 1 in 4 people showed such a bias, with Sweden showing the least favouritism toward citizens (approximately 1 in 9). However, the US stands apart as having the highest ingroup bias – nearly 1 in 3 US respondents believed their government should monitor foreign nationals while leaving citizens alone.

ingroup bias

The US stood out as particularly prone to ingroup bias: favouring surveillance of foreign nationals over citizens. Illustration: Chris Chambers

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Comments on the British Intelligence and Security Committee Report

Published on March 16, 2015        Author: 

Cross-posted on Lawfare.

Last week the Intelligence and Security Committee (ISC) of the UK Parliament published its much-anticipated report entitled ‘Privacy and Security: A modern and transparent legal framework.’ The Report followed an extended inquiry into UK agencies’ surveillance practices prompted by the Snowden revelations; while it concludes that the agencies have generally acted within the prescribed legal limits, it also calls for a total overhaul of the UK legislation governing electronic surveillance, which it finds to be fragmented, overly complex and confusing. For helpful overviews of the Report’s main conclusions and recommendations, see Shaheed Fatima and Ruchi Parekh on Just Security, and James Ball in The Guardian.

The ISC’s exoneration of GCHQ et al. was hardly surprising – libertarians and privacy activists have derided its members as having long gone native and being nothing more than a bunch of apologists for the intelligence agencies whom they are supposed to oversee. Liberty’s ShamiChakrabarti thus commented that ‘the ISC has repeatedly shown itself as a simple mouthpiece for the spooks – so clueless and ineffective that it’s only thanks to Edward Snowden that it had the slightest clue of the agencies’ antics,’ while The Guardian’s editorial page a tad more delicately called it the ‘watchdog that rarely barks,’ the ‘slumbering scrutineer’ and a body that ‘searches out nothing.’ So there.

Whatever the intentions behind the Report, and despite the (at times comical) level of redactions in its public version, it is still a useful document. At a minimum, it provides a reasonably clear analytical overview of the legal framework currently regulating the surveillance activities of the British intelligence agencies, as well as the relevant procedures, and provides a helpful comparison point for those looking at the same set of problems in a different system, for instance in the United States or Germany. In this post I will comment critically on some aspects of the Report that I think are especially interesting and deserving of further consideration.

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House of Cards and International Law

Published on March 11, 2015        Author: 

I just finished watching season 3 of Netflix’s House of Cards, starring Kevin Spacey and Robin Wright as your modern-day Lord and Lady Macbeth. I love watching great bad guys, and season 3 did not disappoint, even if I thought it wasn’t as good as the previous ones. (warning: some minor spoilers follow). Interestingly, one major plotline had a strong international legal element. To wit, although President Underwood had been superb in his climb to ultimate power, his domestic and foreign policies range from the remotely plausible to the utterly preposterous. One such idea is a half-baked and never really explained peace plan for Israel and Palestine which involves the deployment of international peacekeepers in the Jordan Valley.

This obviously involves much toing and froing in the UN Security Council, and to do that effectively President Underwood appoints his wife as US Ambassador to the UN (despite the fact that she has zero foreign policy experience, causing her confirmation to be denied by the Senate, which leads the President to give her a recess appointment – seriously). This policy is opposed on and off by Russia, leading to quite a bit of direct negotiations between President Underwood and his Russian counterpart, Viktor Petrov (a Vladimir Putin impersonator played infernally well by Lars Mikkelsen). We even have a spectacularly implausible state dinner for Petrov at the White House, to which Underwood’s people inexplicably invite three members of the Pussy Riot band (actually playing themselves!). As you can imagine, things don’t end well.

Amusingly, in order to overcome the Russian veto in the Security Council, President Underwood and his better half decide to invoke the Uniting for Peace Resolution.  I certainly did not see that old chestnut coming, and I’m also pretty sure that this is the first time the words ‘Uniting for Peace Resolution’ were uttered in a major Hollywood production. Honestly, all I now need is for Kevin Spacey to do a menacing soliloquy distinguishing between the jus ad bellum and the jus in bello and my life will be complete.

So that was fun. Dear readers, any other hot movies/series out there with international law-related plots? Feel free to display your nerddom in the comments.

Filed under: EJIL Analysis
 

On the Entirely Predictable Outcome of Croatia v. Serbia

Published on February 6, 2015        Author: 

This week the International Court of Justice delivered its judgment in the genocide case brought by Croatia against Serbia. The result was entirely predictable: the Court quite correctly dismissed both the Croatian claim and the Serbian counterclaim. I wrote about this on the blog before (here and here), and have also written a reaction piece intended for a lay audience for the Serbian online magazine Pescanik, which is available in English here. The nationalist reactions to and misinterpretations of the judgment in Croatia and Serbia have been equally predictable, if no less tiresome.

For its part, the Court displayed a laudable degree of both restraint (which is after all de rigueur for the ICJ) and consensus (not so much). The Court’s general approach was entirely consistent with its 2007 Bosnian Genocide judgment: repeatedly finding that acts that qualified as the actus reus of genocide were committed, but without the necessary mens rea (genocidal intent), so that there was no genocide, while the Court had no jurisdiction to determine state responsibility for any other internationally wrongful act. While there are some interesting paragraphs regarding the assessment of evidence etc, the Court basically completely followed the factual findings of the ICTY (including the controversial Gotovina appeals judgment), and rightly so. By following this general approach the Court entirely avoided some of the most interesting legal issues raised in the case, for example the question of state succession to responsibility (i.e. whether Serbia could have succeeded to the responsibility for a wrongful act of its predecessor state, the SFRY), or the question of the attribution to Serbia of the conduct of the Croatian Serb separatists by virtue of the relevant control tests.

The one question that did divide the Court was the issue of its temporal jurisdiction under the compromissory clause in Article IX of the Genocide Convention. By 11 votes to 6 the Court found that it did have the jurisdiction to examine Serbia’s responsibility for genocide allegedly committed by the SFRY (i.e. before Serbia’s independence) by virtue of succession to responsibility, while finding that it ultimately did not need to decide on the succession question because no genocide was committed (most notably during the destruction of the town of Vukovar by the Yugoslav National Army). A number of judges wrote separately on this point of the temporal extent of the Court’s jurisdiction.

On all other matters the judges were either unanimous or virtually unanimous. Even the Serbian judge ad hoc voted for the dismissal of the Serbian counterclaim, while the Croatian claim was rejected by 15 votes to 2, the two being the Croatian judge ad hoc (who wrote a rather half-hearted three-page dissenting opinion, which doesn’t really say much except that he dissents) and Judge Cancado Trindade. Judge Cancado Trindade indeed did not disappoint; in an awesome display of his Cancadotrindadeness he wrote an opinion of some 142 pages (the Court having written a total of 153), dissenting about, well, everything. The summary of his conclusions runs from ‘first’ to ‘fourty-fifth,’ and in Latin, as is only proper (that’s quadragesimus quintus for you h8ers out there).

 

ICJ to Hand Down Croatia v. Serbia Genocide Judgment on 3 February

Published on January 22, 2015        Author: 

As reported in Serbian and Croatian media yesterday, and officially confirmed by the Court today (press release). As for what the Court will decide, it will most likely find that no crime in the conflict in Croatia constitutes genocide, that it lacks the jurisdiction to decide on the responsibility of either state for any other crime, and that accordingly it has to reject both Croatia’s claim and Serbia’s counterclaim. By ‘most likely’ read ‘virtually inevitable, so that I would fall of my chair if the Court did anything else’ – see more here.  We’ll see whether the Court will say something interesting on various ancillary substantive questions before it reaches its main conclusion.

 

Announcements: Workshop at Brunel; International Society for Public Law Conference in New York; EJIL: Live! Extras; CfP: Palestine Yearbook of International Law; The Hague YB of International Law – CfP; Call for Applicants for Harvard Human Rights Program; CfP for Conference in Berlin on FTAs and Democratic Standards

Published on January 10, 2015        Author: 

1.  The Centre for International and Public Law (CIPL) at Brunel University London is delighted to invite you to a Reflective Workshop on the International Criminal Court (ICC). The workshop, supported by the International Human Rights Law Review – www.brill.com/hrlr and Brunel Law School, will be held in the Moot Court Room at Brunel Law School, London (UK), on 28 January 2015, 2:00 pm – 5:00 pm. The workshop is entitled “International Criminal Court in Action” and will include presentations by researchers on the ICC chaired by Professor Manisuli Ssenyonjo (Professor of International Law and Human Rights). The workshop will take the form of presentations, a round table discussion with questions from the Chair and the floor. It will be followed by refreshments. Attendance is free. Further details and abstracts are available here.

2.  The 2015 ICON·S Annual Conference will take place on July 1-4, 2015, at New York University (NYU) School of Law in New York City. The Call for Panels and Papers will be published by February 28, 2015. More information will be available soon on the ICON·S website. The International Society of Public Law (ICON·S) was officially launched in June 2014 at an Inaugural Conference sponsored by the European University Institute and NYU School of Law in Florence, Italy. The conference featured a keynote address by Jeremy Waldron, plenary papers by Robert Keohane, Ruth Rubio Marin and Joseph H.H. Weiler, and hundreds of participants in concurrent panels on all subjects in public law. Presided by Sabino Cassese, ICON·S emerged from the Editorial Board of I·CON—the International Journal of Constitutional Law. The ICON·S Executive Committee includes Sujit Choudhry, Gráinne De Búrca, Ran Hirschl, Bing Bing Jia, Susanna Mancini, Phoebe Okowa, Michel Rosenfeld, Ruth Rubio Marin, Hélène Ruiz Fabri, Anne van Aaken, and Joseph H.H. Weiler.

3. In case you missed it, 3 episodes of EJIL:Live Extra! are available for viewing. EJIL: Live Extras! are shorter, in-a-nutshell, episodes of EJIL:Live addressing a variety of topical and interesting issues.  The available episodes 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. Read the rest of this entry…

Filed under: Announcements and Events
 
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Running in Circles: A Comment on Bjorge’s Evolutionary Interpretation of Treaties

Published on December 18, 2014        Author: 

It was a pleasure to read Eirik Bjorge’s The Evolutionary Interpretation of Treaties. The book is well written and exceptionally well researched. Eirik demonstrates nothing less than an encyclopedic knowledge of the relevant case law and scholarship, and has seemingly read every single bit of text that the International Law Commission and its rapporteurs have produced on the question of interpretation. Eirik’s book is beyond question the most comprehensive examination to date of the issue of evolutionary treaty interpretation, and it fills an important gap in the literature.

While the virtues of the book are many, I cannot help but feel that, had Eirik chosen a different methodological path, the book could have been significantly more illuminating with regard to the nature of the phenomenon of evolutionary interpretation. This is not because I take issue with the main thrust of Eirik’s argument, namely that evolutionary interpretation is perfectly compatible with the rules of interpretation set out in Articles 31-33 of the Vienna Convention on the Law of Treaties. Yes, it is – at least partly because the Vienna ‘rules’ are so broad and flexible that one can do (almost) whatever one wants with them.

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Discussion of Eirik Bjorge’s The Evolutionary Interpretation of Treaties

Published on December 15, 2014        Author: 

The Evolutionary Interpretation of TreatiesThis week we’ll be hosting a discussion of Eirik Bjorge’s recent book with OUP, The Evolutionary Interpretation of Treaties.

Eirik Bjorge is the Shaw Foundation Junior Research Fellow at Jesus College, University of Oxford. Eirik has, among other things, been pensionnaire étranger at École normale supérieure, visiting researcher at Sciences Po and the Max Planck Institute for Comparative Public Law and International Law, and stagiaire at the Conseil d’État and the European Court of Human Rights. He has taught at Oxford and at Sciences Po. He is the author of The Evolutionary Interpretation of Treaties (OUP, 2014) and Domestic Application of the ECHR: Courts as Faithful Trustees (OUP, 2015).

Eirik’s book will be discussed by Ulf Linderfalk, James Crawford, Isabelle Van Damme, and Marko Milanovic. Eirik will start off the discussion with an introduction, and wrap it up with a response to the four discussants. We are grateful to all of them for their participation.

 
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Jurisdiction, Attribution and Responsibility in Jaloud

Published on December 11, 2014        Author: 

In my last post on the Jaloud v. Netherlands case, I looked primarily at the bottom line of the case and what it will mean for the future. In this post, however, I would like to try to clarify the conceptual framework of jurisdiction, attribution and responsibility (which Aurel also looked at in his post) that the Court used (or should have used) in the case. The key parts of the judgment in that regard are paras. 140-155, which I will not reproduce in full here, plus the concurring opinion of Judge Spielmann, joined by Judge Raimondi.

It is clear from even a cursory read of the Spielmann opinion (as well as the concurring opinion of Judge Motoc, who writes in opposition to the two other Judges), that the judges of the Grand Chamber found the question of the relationship between the Article 1 ECHR concept of state jurisdiction, and general international law concepts such as attribution of conduct and responsibility for wrongful acts, to be particularly vexing. Judging by the language used, there must have been quite the internal debate. Judges Spielmann and Raimondi found the Court’s use of the attribution concept and its references to the case law of the ICJ (para. 95-97) and the ILC’s Articles on State Responsibility (para. 98, quoting articles 2, 6 and 8) to have been exceptionally objectionable, indeed ‘ambiguous, subsidiary and incomprehensible.‘ For the two Judges, attribution was a ‘non-issue’ in the case, which the Court should have avoided:

There was therefore no need to examine the non-issue of “attribution”, which is completely separate from the question of “jurisdiction”. More fundamentally, the Court should in any event be careful not to conflate the notions of jurisdiction under Article 1 with the concept of State responsibility under general international law. Efforts to seek to elucidate the former by reference to the latter are conceptually unsound and likely to cause further confusion in an already difficult area of law.

Contrary to the two Judges, I will try to show that attribution was, in fact, a central issue in the case, and that the Court’s approach, including references to the ILC’s work on state responsibility, was generally sound. However, I will also show that the Court could have been clearer in explaining what it was actually doing, which would have had the salutary effect of avoiding potentially confusing points for future cases. In fact, at least to an external observer, the divide between the majority and the two Judges is not as great as it might first seem, and the important conceptual points that they raise in the separate opinion can and should be adequately addressed.

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