We will have more substantive commentary on the judgment in the week to follow. For now, however, I’ll just note some key paragraphs in the Court’s judgment: para. 58 (inter-temporal law), para. 60 (state acts may be unlawful but still be acts jure imperii), paras 77-78 (no territorial tort exception to immunity for the acts of the armed forces of a foreign state on the territory of the forum state in times of armed conflict; note the Court’s extensive reliance on domestic judgments and those of the European Court of Human Rights), para. 91 (no exception to state immunity merely because a serious violation of IHL or IHRL is alleged), para. 93 (no conflict between a substantive rule prohibiting certain conduct that has the status of jus cogens and the procedural rule establishing state immunity; therefore, no jus cogens override of immunity), paras. 101-102 (immunity does not depend on the availability of an alternative avenue for redress), para. 108 (because immunity is upheld, no need to examine questions whether individuals are directly entitled to compensation for violation of IHL and whether states may validly waive the claims of their nationals in such cases), para. 119 (immunity from enforcement), paras. 130-132 (jurisdictional immunity in exequatur proceedings).

A long-anticipated judgment, and one in which I think the Court both reached the correct result and did so in a well-reasoned decision – but I’m sure it’ll prove controversial nonetheless.

Christian Tams sends along the following announcement.

Frankfurt Investment Law Workshop 2012 – Preferential Trade and Investment Agreements: A New Ordering Paradigm for International Investment Relations? (16-17 March 2012)

For a couple of years, the Frankfurt Investment Law Workshop has been a forum to discuss conceptual issues of international investment law. Following previous events assessing the relationship between Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (see here) and International Investment Law and Its Others (forthcoming 2012), this year’s workshop will explore the growing network of preferential trade and investment agreements (PTIAs) and assess their impact on ordering international investment relations. It will be held in Frankfurt/Main on 16-17 March 2012, immediately following the Frankfurt Investment Arbitration Moot.

The workshop will open with a keynote speech by Professor Raúl Emilio Vinuesa. This is to be followed by panels addressing the interaction between PTIAs and traditional BITs; the impact of PTIAs on the Trade/Investment divide; and the role of regionalism and multilateralism in international investment law.

The event is designed to be a forum for discussion and much room is allocated to debate. Anyone interested in participating should contact Mrs. Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt, RuW, Grüneburgplatz 1, 60323 Frankfurt am Main, Germany (S.Schimpf {at} jur.uni-frankfurt(.)de) by 28 February 2012.

(On a slightly more serious note, we’ll try to have commentary on the judgment as soon as possible).

The International Law Association (ILA) British Branch invites submissions for papers for its Annual Spring Conference on “Security and International Law”, which will be hosted by the University of Nottingham School of Law from 20-21 April 2012.  The theme of the conference is open to broad interpretation in terms of human, political, military, socio-economic, environmental and energy security as well as security issues arising from the operation of international law in territorial and extra-terrritorial spaces, such as the high seas, aerospace, or the Internet. Full details of the Call for Papers are available here. Details of the Pre-Conference MPhil/PhD Workshop are listed in the Call for Papers in the same document.

Submissions for the Annual Spring Conference should be received by 31 January 2012 and expressions of interest for the Pre-Conference by 1 February 2012.

With some relatively minor exceptions international humanitarian law (IHL) applies only when a certain threshold is met: the existence of an armed conflict or belligerent occupation. The purpose of this chapter is to explore the many difficulties surrounding the classification of armed conflicts in modern IHL. While the two main archetypes – international armed conflict (IAC) and non-international armed conflict (NIAC) – are reasonably clear in their basic forms, their boundaries are complex and obscure. Many recent conflicts do not fit the classical archetypes well, provoking debates on spill-over, internationalized, mixed or hybrid and even transnational armed conflicts.

The chapter strives to show that there are some differences between IACs and NIACs that cannot be erased simply by reasoning from analogy or from moral imperative, and that therefore the classification of armed conflict is an issue that matters and will continue to matter for the considerable future. The principal goal of the chapter is clarity, clarity in a conceptual and doctrinal framework which can enable legal and policy debates to be properly had and argued without their participants talking past each other. In attempting to advance such clarity, the chapter discusses the framework of war and peace in classical international law, the conceptual revolution brought about by the aftermath of the Second World War, and finally the modern law, by developing a comprehensive taxonomy of armed conflict.

506. With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application. To cite but two obvious examples from among many, a State Party’s participation in a war would in no way excuse it from respecting and ensuring rights to have or adopt a religion or belief of one’s choice or the right and opportunity of every citizen to vote and to be elected at genuine periodic elections.

507. More complex issues arise with respect to the relevant body of law that determines whether a State’s actions in the actual conduct of an armed conflict comport with international law. Under the doctrine of lex specialis, the applicable rules for the protection of individuals and conduct of hostilities in armed conflict are typically found in international humanitarian law, including the Geneva Conventions of 1949, the Hague Regulations of 1907, and other international humanitarian law instruments, as well as in the customary international law of armed conflict. In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections. For example prohibitions on torture and cruel treatment exist in both, and the drafters in each area have drawn from the other in developing aspects of new instruments; the Commentaries to Additional Protocol II to the Geneva Conventions make clear that a number of provisions in the Protocol were modeled on comparable provisions in the ICCPR. Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.

Note how the US report has now started using the customary buzzwords of the IHL/IHRL project (‘complementary’, ‘mutually reinforcing’), while at the same time presenting its lex specialis argument in less drastic terms than before. The last sentence of para. 507 is particularly noteworthy, as the US now argues that the relationship between the two bodies of law requires a fact-specific determination in any given case, rather than just treating IHL as displacing IHRL wholesale, while it leaves room for complementary application particularly in times of internal armed conflict. (Note the construction ‘non-international armed conflicts occurring within a State’s own territory’, which is presumably meant to exclude cross-border NIACs of the sort that the US claims it is engaged in with Al-Qaeda).

We’ll see whether the US position will continute to evolve – but there is some reason here for optimism. The reference to lex specialis is still unfortunate, in my view, as that pithy Latin phrase has very little to teach on the interaction between norms (see more here, and in a more updated form in the last chapter of my book). In that regard, readers might also be interested in the debate between Gabor Rona and Jens Ohlin at Opinio Juris and Jens’ new blog, the LieberCode.

Complexo Pedagogico, Universidade Eduardo Mondlane,

Maputo, Mozambique

THE QUEST FOR hUMAN SECURITY, PEACE AND DEVELOPMENT: CHALLENGES AND RESPONSES

BACKGROUND AND AIM OF THE CONFERENCE

In anticipation of the 50^th anniversary of the creation of the Organisation of African Unity (OAU) in 2013:

• the African Foundation of International Law (AFIL)
• the Centre for Human Rights, University of Pretoria, South Africa
• the Institute for International and Comparative Law in Africa (ICLA), University of Pretoria, South Africa
• Faculdade de Direito, Universidade Eduardo Mondlane, Mozambique

are pleased to announce a two-day conference on international law in Africa and invite proposals for papers.

This conference aims to provide a forum for reflection on the pan-African organisation in the specific context of human security, peace and development in Africa, and how the OAU/AU has responded to challenges in these areas.

THEMES OF THE CONFERENCE

Presentations at the conference will fall under one of the following four general themes, and may include the following topics:

Day 1  Friday 5 October 2012

 Threats to Human Security by State and Non-State Actors

•  Judicial responses to Mass Violations of Human Rights: the Role of Regional and International Judicial Bodies (ICC, African Commission and Court of Human and Peoples’ Rights)
• Judicial Response to Massive Violations of Human Rights: the Role of Domestic Courts and Universal Jurisdiction

 Development and Human Rights

Theory and Practice of the Right to Development in Africa

• Doha Development Agenda: What is in it for Africa?
• Regional Integration and the African Economic Community, NEPAD and its Peer-Review Mechanism: What Contribution to African Development?

 Peace and Good Governance

• The Responsibility to Protect: the Role of the African Union and the United Nations
• Consolidating Rule of Law and Good Governance through African Instruments
• Strengthening State Institutions as a Response to Internal Conflicts

Day 2  Saturday 6 October 2012

 Towards 50 Years of African Unity (Morning)

• Panafricanism and International Law
• From OAU to AU

 Institutional matters (Late morning)

• Meeting of the African Foundation for International Law (AFIL), with a view to reactivating the African Association of International Law (AAIL)

MOOT COMPETITION (Afternoon)

On the afternoon of 6 October 2012, conference participants are invited to attend the final round of the 21^st African Human Rights Moot Court Competition, in the main auditorium of the Joachim Chissano Conference Centre in Maputo. The Moot Competition, which is the leading human rights education initiative at university level in Africa, brings together students and academics from over 60 African universities each year to argue and debate contemporary human rights issues. The final round opposes the best teams and is presided over by leading international jurists including judges from the African Court on Human and Peoples’ Rights, the International Court of Justice, the International Criminal Court, the Constitutional Court of South Africa and the Chief Justice of Mozambique; as well as other experts from academia and civil society.

PROCESS: POTENTIAL PRESENTERS

•  Those interested in presenting a paper must submit an abstract containing their name, the proposed title and a brief summary of the argument / contribution of the paper (no more than 500 words).

• Abstracts should be sent to adjovi {at} afil-fadi(.)org before 1 May 2012.
• Authors of abstracts selected for presentation will be informed by 1 June 2012.
• A full paper (5,000 to 10,000 words) must be submitted before 1 August 2012 to be translated for the conference file. Inclusion in the conference programme is conditional on the submission of the actual paper before 1 August 2012.
• Each presenter will have 15 – 20 minutes to present their paper. Discussion is encouraged. Papers will be made available to all participants beforehand.
• Presenters may be required to rework their papers after the conference, if necessary, and resubmit final versions for inclusion in a commemorative publication.

For further information, please contact Roland Adjovi at adjovi {at} afil-fadi(.)org or see www.chr.up.ac.za