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OUP Timeline: The History of International Law

Published on August 17, 2015        Author: 

Our friends in Oxford University Press have created a very interesting visual timeline mapping the history of international law. It’s very interesting in its own right, but can also serve as a valuable teaching tool, especially if your university is subscribed to the Oxford PIL service.

Here is the blurb:

We have created a concise timeline mapping the broad history of public international law with particular attention paid to the signing of major treaties, the foundation of fundamental institutions, the birth of major figures in international law and milestones in the development of some of the field’s best-known doctrines. There are varying opinions on where to start in the history of international law, as well as arguments around periodising the dynamic developments, though for this project we have started our timeline with the Treaty of Tordesillas in 1494. Explore some of the major developments in the history of international law and read more by clicking through to freed-up chapters from the Oxford Historical Treaties, the Max Planck Encyclopaedia of Public International Law, relevant book chapters, blog pieces and journal articles.

OUP are happy to receive suggestions from our readers regarding both content and images – please send these directly to John.Louth {AT} oup.com .

 

Some Thoughts on the Serdar Mohammed Appeals Judgment

Published on August 10, 2015        Author: 

In this post I’d like to add a few thoughts on the recent Court of Appeal judgment in Serdar Mohammed, that we already covered on the blog last week (here and here). The case is now heading to the UK Supreme Court, and may also eventually end up in the European Court of Human Rights – although Strasbourg will be looking carefully at the Supreme Court’s judgment even if the case doesn’t find its way to it.

First off, I think everything that can be said about the ‘big issue’ of authority to detain in NIAC has already been said; those already committed to either view are not going to be dissuaded by some novel argument. For my part, I only wish to note that after the Court of Appeal’s (unanimous!) judgment it looks increasingly unlikely that the Supreme Court will overturn the finding of the lower courts (although that of course may still happen), especially bearing in mind the rigour and detail of these lower judgments. It is very difficult for any court to essentially make up rules (in reasoning by implication/analogy/structure or whatever) on who precisely can be detained in NIACs, for how long and under what exact process, in the absence of any meaningful legislative guidance. This is not a gap that most judges would feel comfortable in filling, especially when easy analogies to IACs or (much worse, between targeting and detention) break down.

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Breaking: Court of Appeal Affirms Serdar Mohammed

Published on July 30, 2015        Author: 

Breaking news: today the English Court of Appeal  unanimously affirmed Leggatt J’s judgment in Serdar Mohammed v. MoD, finding that IHL does not contain authority to detain in non-international armed conflicts. Full (and very lengthy) judgment available here; our earlier coverage is here. Happy to report that some of our earlier posts (three I think) were cited by the Court. Obviously I haven’t yet read all of the decision, but we will have plenty of commentary in the days to follow.  I imagine an appeal to the Supreme Court is virtually inevitable.

 

Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States

Published on July 23, 2015        Author: 

Evolutionary or dynamic interpretation is one of those perennial ‘big’ topics, which we e.g. recently dealt with in our book discussion on Eirik Bjorge’s recent work on the topic. Judicial pronouncements on LGBT rights are an excellent example of this phenomenon (for some of my earlier thoughts on this, see here). In particular, on 26 June the US Supreme Court rendered its blockbuster ruling in Obergefell v. Hodges, in which it held (per Justice Kennedy, and by 5 votes to 4) that the US Constitution requires full marriage equality between same-sex and different-sex couples. On reading this judgment, as well as some of the recent cases on similar questions before the European Court of Human Rights, I was struck by several points on the practical realities of dynamic interpretation that I’d like to raise in this post.

First, it really is striking that despite the many differences in the text of the relevant instruments, their history, the institutional make-up or legal culture generally, US and European courts both look at gay rights generally (or the issue of gay marriage specifically) through the same analytical lenses: on the one hand there’s private life, family life or individual liberty (or in US parlance substantive due process under the Fourteenth Amendment to the US Constitution); on the other hand, there’s equality or non-discrimination. And while there are many differences in the concrete legal tests being applied (e.g. proportionality in Europe, tiered levels of scrutiny in the US), there are many conceptual similarities as well.

Second, in both Europe and in the US most gay rights cases, whether under privacy/liberty or under equality, boil down to one basic, fundamental problem: if a right or legitimate interest is interfered with or restricted by the state (e.g. gays are denied the right to marry), what is the justification offered by the state for that restriction, and how then should a court assess that justification. In particular, can such a restriction ever be justified by reference to public morals, or tradition, or disapproval of a particular group or behaviour alone, absent any objectively identifiable, concrete individual or societal harm. One reason why Obergefell came out the way it did was that the opponents of gay marriage were simply unable to articulate any concrete harm to anyone; each argument they tried to make of that type was easily disprovable (e.g. if marriage is inextricably tied to procreation, why then do we allow infertile couples to get married, etc. – for an example of pretty brutal judicial questioning along these lines, one need only listen to this oral argument before Judge Richard Posner, and read this judgment.)

In other words, the big question is whether it would ever be legitimate to restrict marriage to opposite-sex couples simply because ‘we’ (say the majority in a popularly elected parliament) believe that same-sex couples are icky and yucky. Is a feeling or sentiment of yuckiness (or sinfulness, turpitude, taboo, whatever) enough to deny people legal rights? Many lawyers would stop here and simply say that such irrational considerations cannot form the basis for running a legal system. But wait – in the European Convention (unlike in the US Bill of Rights) we actually have explicit references to the protection of morals in the limitation clauses of several articles, including Article 8. And in fact the Court has said, for example, that it’s fine to keep a person in prison simply because that person chooses to walk in public without wearing any clothes, even though he causes no concrete harm to others in so doing – remember that naked rambler dude? He’s still naked, and still in prison (9 years on! – see here and here for very recent developments). And if yuckiness alone does not suffice, what then of polygamy or consensual adult incest and the like (and we do have cases like that), or some other parade of horribles?

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The Shameful Twenty Years of Srebrenica

Published on July 13, 2015        Author: 

In the great catalogue of human misery, the July 1995 Srebrenica genocide merits a special mention. But as horrible as the slaughter of more than 7,000 Bosnian Muslim men and boys was – unquestionably the worst crime of the whole brutal Bosnian conflict – the repeated, ongoing and unrelenting denial of the crime is if not worse, then at least as depressing. Today, twenty years on, that revisionist denial is strongest where it matters – in Republika Srpska and in Serbia – and its strength demonstrates the continued, long-term inability of these communities to come to terms with the past.

The denial is manifold, in forms both hard and soft. It ranges from a complete rejection that any crime took place, to disputing the number of victims or who the victims were, to emphasizing crimes against Serbs around Srebrenica or inflating the numbers of Serbs killed, to disputing the characterization of the crime as genocide as if that makes some actual moral difference. And, it needs to be said, that denial is virtually unaffected by whatever the International Criminal Tribunal for the Former Yugoslavia or the International Court of Justice said on the matter.

To demonstrate the scale of denial in cold, hard numbers, it suffices to take a look at a February 2012 survey of public opinion in Bosnia, sponsored by the Belgrade Centre for Human Rights and the OSCE and conducted by Ipsos Strategic Marketing (detailed results on file with me). The survey found that of the (mostly Serb) population of the Republika Srpska only 59.2% say that they even heard of a massacre in Srebrenica, while only 34.8% of the people who say that they’ve heard of the crime believe that it actually happened. Thus, of the whole RS population 40.8% say they’ve never even heard of any massacre in Srebrenica, 38.6% say that they’ve heard of it but that it never happened, and only 20.6% believe it did. That, dear readers, is what ‘truth and reconciliation’ in today’s Bosnia look like.

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The Nagorno-Karabakh Cases

Published on June 23, 2015        Author: 

Last week I wrote about one particular aspect of the recent Grand Chamber judgments of the European Court of Human Rights in two cases dealing with the aftermath of the Nagorno-Karabakh conflict: Chiragov and Others v. Armenia, no. 13216/05 and Sargsyan v. Azerbaijan, no. 40167/06, namely the Court’s conclusion that belligerent occupation necessarily requires troops on the ground. I also promised a more comprehensive look at the two (very important) judgments, and here it is. The two cases concerned the aftermath in the conflict, in the sense that they dealt with the right of persons displaced by the conflict to access their property (under Article 1 of Protocol 1 to the Convention), rather than with the conflict itself, which was outside the Court’s temporal jurisdiction. That said, there are numerous noteworthy aspects of these two judgments.

First, there is the cases’ basic structure. Both cases were brought by individuals, but there are more than a thousand other applications pending before the Court with essentially the same issues. While these are formally not pilot judgments in the sense the Court uses the term, they are in fact test cases on the basis of which the Court is set to resolve all of the other pending cases, unless the parties choose to settle them first. And while the cases were brought by individuals, they have a strong interstate dimension, not only because of their politically controversial subject-matter, but because Armenia and Azerbaijan both intervened as third parties in the case in which the other state was the respondent (i.e. Armenia intervened in Sargasyan and Azerbaijan in Chiragov). These were, if you will, interstate cases by proxy.

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European Court Decides that Israel Is Not Occupying Gaza

Published on June 17, 2015        Author: 

Yesterday the Grand Chamber of  the European Court of Human Rights delivered judgments in two blockbuster cases regarding the aftermath of the Nagorno-Karabakh conflict between Armenia and Azerbaijan: Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan. These are very rich judgments raising many important issues, and I will be writing up more detailed comments shortly. But I first had to share one particular little nugget: the Court has (implicitly!) decided that Israel is not the occupying power in Gaza. How so, you ask?

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Discussion of Steven Ratner’s The Thin Justice of International Law

Published on June 1, 2015        Author: 

The Thin Justice of International Law A Moral Reckoning of the Law of NationsThis week we will be discussing Steven Ratner’s recent book with OUP, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations. We will be running this discussion in tandem with the blog of Ethics & International Affairs, the journal of the Carnegie Council, who will be having their own discussants – be sure to visit!

Steve is a leading international law academic; he is currently the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School. His book will be discussed over the course of the week by Anne Peters, Rob Howse, Jean d’Aspremont and Frédéric Mégret, who will be joined over at EIA by Kristen Hessler and David Lefkowitz. Steve will start off the discussion with an introduction, and wrap it up with a response to all of the discussants. We are grateful to all of them for their participation.

Filed under: EJIL Book Discussion
 

UN Working Group on Arbitrary Detention Adopts Principles and Guidelines on Habeas Corpus

Published on May 5, 2015        Author: 

A couple of days ago the UN Working Group on Arbitrary Detention adopted an important document, the “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court,” and submitted the text to the Human Rights Council. The document was developed by the WG at the Council’s request. The project is meant to guide Member States on principles on the judicial review of the lawfulness of detention. The drafting process was completed after extensive consultations with states and other stakeholders. A press release is available here, the full text of the Guidelines and Principle is here, while the submissions by interested states and other actors are here.

This is a rich document dealing with many different issues. Perhaps most interesting – and certainly bound to be the most controversial – are the WG’s conclusions with regard to deprivation of liberty in armed conflict. The WG takes a very strong position regarding the right of habeas corpus in wartime, which it sees as non-derogable in common to a number of other human rights bodies, finding for example that in international armed conflict even prisoners of war have the right of access to a judicial mechanism that would establish the lawfulness of their status-based preventive detention. The WG also takes the view that IHL does not authorize internment in NIACs, and that internment would only be lawful if it is prescribed by domestic law, after a derogation in a public emergency. Some of the most important paragraphs are reproduced below the fold.

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Reminder: ESIL Annual Conference 2015, Oslo – Early Bird Registration

Published on April 27, 2015        Author: 

ESIL Annual Conference 2015, Oslo – Registration: early bird fees applicable until 30 April 2015

The 11th Annual Conference of the European Society of International Law (Oslo, September 10-12, 2015) will be hosted by the University of Oslo’s PluriCourts Center on the Legitimate Roles on the Judiciary in the Global Order.

The conference is entitled “The Judicialization of International Law – A Mixed Blessing ?”. The conference will address the international law aspects of the increased judicialization from an interdisciplinary perspective. The conference will feature plenary sessions, fora with invited speakers, and a number of agorae with selected speakers. Invited speakers include current and former judges of various international courts, as well as legal practitioners and scholars of several disciplines.

Early bird registration fees are applicable until 30 April 2015. Please visit the conference website for more information.

Filed under: Announcements and Events
 
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