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Maximilian Schell RIP

Published on February 1, 2014        Author: 

 

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Announcements: Chair in PIL at UCL, Workshop at IALS, ILA/ASIL Joint Meeting

Published on February 1, 2014        Author: 

1. The Faculty of Laws at University College London has advertised a chair in public international law. The current appointment is being made to replace Professor Catherine Redgwell, who has taken up the Chichele Chair at Oxford. Closing date is 20 February. Details here.

2. The Institute of Advanced Legal Studies at the University of London is organising a workshop on National Security and Public Health as exceptions to Human Rights’ on 29th May 2014 and is now calling for papers. The Institute is honoured to announce that the keynote speaker will be Professor Malcolm Dando who will speak on “Threats of dual use biomedical research – when nation security and public health collide”.  Please note the deadline for submissions is 14th February 2014. All the information and the call for papers can be found here.

3. Register by February 7, 2014 to snap up the advantageous “Early-Bird Rate”– saving $165 over the walk-up rate– for the historic joint meeting between the 150-year-old global International Law Association and the American Society of International Law, running April 7-12, 2014.  The festivities will take place at the International Trade Center, next to  the Washington Mall, during the height of Washington’s lovely Cherry Blossom Season.   Family members will enjoy the trip too, since the Trade Center is  close to all the best tourist stops in the nation’s capital, including the National Gallery, the Air and Space Museum, the Lincoln Memorial, the Washington Monument, the Spy Museum, the Kennedy Center and the list goes on.  Incredible program of public and private international law debates is described at the ILA website or the ASIL website .  Adjacent J.W. Marriott Hotel at 1331 Pennsylvania Avenue has conference room rates that are well below market for Cherry Blossom Time.  Notables including judges of the International Court of Justice, the International War Crimes Tribunals, and Supreme Courts around the world will be at the ILA-ASIL Joint Meeting to engage in our robust debates.

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Announcements: David Held at Sciences Po; iCourts Conference & Summer School; Cagliari Conference Accountability of International Organizations; ASIL Event on Careers in International Organizations

Published on January 25, 2014        Author: 

1) Prof. Olivier de Frouville, University Panthéon-Assas, member of the French University Institute organizes a conference and a master class with David HELDProfessor of Politics and International Relations at Durham University, Master of University College Durham. The event will take place on 21 March 2014, from 9 h 30 to 17 h 30, in the CERI-Sciences Po Paris Conference Room, 56, rue Jacob, Paris 6ème. Applications for the master class can be sent until 14 February 2014 at olivier.de-frouville {at} u-paris2(.)fr . The applications will include: (1)  a curriculum vitae, clearly indicating the topic of the research and the works already published (if any) or in the course of being published. (2)  A one page letter of motivation. The list of successful applicants will be communicated at the latest on the 28th of February 2014. Further information available here.

2) The Center of Excellence for International Courts, (iCourts) Faculty of Law, Unviversity of Copenhagen is pleased to announce its conference on International Courts and Domestic Politics. The conference will be held a Copenhagen University on September 11th-12th. For this conference, we invite both political science, sociology and law papers. Please submit your paper proposal to: Zuzanna.Godzimirska {at} jur.ku(.)dk or Kristoffer.shaldemose {at} gmail(.)com by first of March 2014 at the latest.

The Centre of Excellence for International Courts (iCourts) and PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order is also hosting a high-level summer school for PhD students and junior scholars working on international law and with a special interest in interdisciplinary studies of international law and its social and political context. For more information, see here

3) Conference on “Conceptualizing Accountability in International Economic Law” – The University of Cagliari, Department of Law welcomes submissions that describe cutting-edge research in the following focus areas: Accountability and Law of International Banks; Accountability and WTO Law; Accountability and International Environmental and Energy Law; Accountability and Investment Law; Accountability and Law-makers. Interested participants should provide an abstract of up to 500 words by the 31th of March, 2014 to federico.esu {at} gmail(.)com. Outstanding papers will be selected for publication. More information is available here .

4) ASIL New Professionals Interest Group event on Careers in International Organizations: Wednesday, January 29, 5:30pm-7:30pm; Washington, DC and *livestreamed*

“Working at an international organization offers unique insight into how international law is made through the convergence of national interests, personal dynamics, global realities, and constantly evolving norms.  But how does a lawyer enter these labyrinths?  What is it like to work in them?  How do you get the assignments that advance your career once inside?  And where do you go from there?   Panelists at this event sponsored by ASIL’s New Professionals Interest Group will share the perspectives they have gained from the United Nations, the World Bank, the Organization of American States, and other international organizations, answering these questions and ones posed by the audience. Panelists include: Simone Schwartz-Delgado (Office of the United Nations High Commissioner for Refugees); Grace Menck (Inter-American Development Bank); Heidi Jimenez (Pan-American Health Organization); Steve Koh, ASIL (former attorney at the International Criminal Tribunal for the Former Yugoslavia and International Criminal Court) Please register/get more info here 

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The Self-Fragmentation of the ICTY Appeals Chamber

Published on January 23, 2014        Author: 

Today the ICTY Appeals Chamber (thankfully) affirmed the convictions of high-ranking Serbian leaders for crimes in Kosovo in Sainovic et al, even though it somewhat reduced the sentences. The judg(e)ment is gigantic, especially for an appeals decision, at 800 pages+, and obviously I haven’t read it. But buried in all that is one very important development in the whole ‘specific direction’ saga – by 4 votes to 1, the Chamber decided that the Appeals Chamber in Perisic was wrong in holding that specific direction was an essential element of the actus reus of aiding and abetting liability. The Chamber discussed the issue extensively at more than 20 pages, starting at p. 643, and here are the choice concluding paragraphs:

1649. Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furundzija Trial Judgement and confirmed by the Blaskic Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” The required mens rea is “the knowledge that these acts assist the commission of the offense”. The Appeals Chamber reaffirms the position taken by the Blaskic Appeal Judgement in this regard.

1650. Accordingly, the Appeals Chamber confirms that the Mrksic and Sljivancanin and Lukic and Lukic Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”, accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability. Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perisic Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.

In so holding, the Chamber did not rely just on the ICTY’s prior case law, but also on the recent Taylor judgment of the SCSL, which had also rejected specific direction. Note also how the Chamber did not mince words – it came to a ‘compelling conclusion’ to ‘unequivocally reject’ Perisic as wrongly decided. In his dissent, Judge Tuzmukhamedov is of the view that it is unnecessary on the facts of the case to get into the specific direction issue, and that Chamber should not have done so, especially in order to avoid a conflict with a prior decision of the Appeals Chamber. He however takes no position on the specific direction issue itself.

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Announcements: E.MA, Jobs at HRLC, SLS Nottingham

Published on January 18, 2014        Author: 

1. The European Inter-University Centre for Human Rights and Democratisation (EIUC) is accepting applications for the 18th edition of the European Master’s Degree in Human Rights and Democratisation (E.MA). E.MA provides students with the opportunity to share knowledge and skills with leading scholars from 41 prestigious European Universities and renowned Human Rights experts, in the classroom and during a week-long field trip. Applications for the academic year 2014/2015 are processed on an on-going basis. The next deadline is 15 March 2014. Apply now.

2. The Human Rights Law Centre, University of Nottingham is looking for a:

Research Assistant

The successful candidate will join a small team of academics, consultants and support staff and assist in the planning and implementation of human rights projects, which include training courses, workshops, conferences and research projects (both in the UK and overseas), as well as the publication of several human rights journals and books. Full details: http://www.nottingham.ac.uk/jobs/currentvacancies/ref/SSC001314

Research Associate/Fellow

The successful candidate will join a small team involved in an international research and capacity building project that will develop national participation in the Rome System of Justice, by empowering national criminal justice actors and supporting them to overcome legal constraints in realising their obligations under the Rome Statute of the International Criminal Court. Full details: http://www.nottingham.ac.uk/jobs/currentvacancies/ref/SOC15231.

3. The Society of Legal Scholars is pleased to announce its second PhD Student Conference, to run alongside the Society’s Annual Conference (9th-12th September 2014). The PhD Conference will be held at the University of Nottingham on 8th-9th September 2014. Complementing the Society’s Annual Conference, the theme for this year’s PhD Conference is ‘Judging in the 21st Century’. We are inviting PhD students, from all disciplines of law (and justice) to submit papers that reflect a fresh engagement with the enterprise of judging. Details and call for papers here.

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Reminder: ESIL Vienna Conference Call for Papers

Published on January 10, 2014        Author: 

Just a reminder to our readers that 15 January is the deadline for the submission of abstracts for the call for papers for the 10th anniversary conference of the European Society of International Law to be held in Vienna, 4-6 September 2014. Details regarding the call and the procedure can be found here.

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Hassan v. United Kingdom, IHL and IHRL, and Other News in (Extra-)Territoriality and Shared Responsibility

Published on December 18, 2013        Author: 

Last week the Grand Chamber of the European Court of Human Rights held an oral hearing in what is bound to be a very important case, Hassan v. UK. The case deals with the detention of an Iraqi by British forces in southern Iraq and his subsequent release and death under unclear circumstances. As such it raises both threshold questions on extraterritorial applicability/Article 1 jurisdiction and substantive issues on the relationship between human rights and international humanitarian law. Here is the Court’s press release on the hearings, and here’s the actual webcast of the hearings. Shaheed Fatima also has a good preview of the case over at Just Security.

The jurisdiction issue is made more complicated by uncertainties left after Al-Skeini as to whether and when exactly the UK had effective overall control over southern Iraq for the purpose of spatial model of Article 1 jurisdiction, as well as by the fact that the camp to which Hassan was taken upon arrest was run by the US. The multiplicity of actors can thus render both the jurisdiction and the attribution questions more difficult. But I will not deal with them here. Rather, I want to focus on the interaction between the ECHR and IHL.

In that regard, together with the pending Georgia v. Russia interstate case, Hassan presents an excellent opportunity for the Court to articulate a clear and systematic approach on IHL. Hopefully this is an opportunity that the Court will take up, and the questions posed by the various judges during the oral hearing are an indication that they will do so.

Why is Hassan such a good case? Because at least in part it poses the hard question of potentially unavoidable norm conflict (a topic which I have dealt with extensively here, as well as specifically in the context of IHL and IHRL here). On the one hand, the UK is arguing that Hassan’s arrest and preventive security detention were authorized by IHL in an international armed conflict (the exact theory is for the time being beside the point). On the other hand, Article 5 ECHR categorically prohibits preventive security detention; unlike Article 9 ICCPR, which prohibits arbitrary deprivations of liberty, Article 5 ECHR contains an exhaustive list of permitted grounds for detention, and preventive security detention is not one of them. Hence, when states wanted to use internment in the context of internal disturbances or emergencies which may even have reached the level of non-international armed conflict, they had to derogate from Article 5 pursuant to Article 15 ECHR, as the UK did for Northern Ireland.

In the context of Hassan this raises the preliminary question of whether the UK could have derogated with respect to the situation in Iraq (which in any event it did not do), i.e. whether Article 15 ECHR allows for extraterritorial derogations. Article 15 limits derogations to times of ‘war or other public emergency threating the life of the nation.’ In Al-Jedda Lord Bingham expressed doubts that this formulation could extend to situations outside the derogating state, especially those which it had put itself in willingly, a sentiment later echoed by the UK Supreme Court in Smith. In other words, the UK chose to invade Iraq, and however bad the situation was for Iraqis in Iraq it in no meaningful way threatened the life of the UK. Further support for this position would be found in the fact that no state has ever derogated for an extraterritorial situation.

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Reminder: Deadline for Third Annual Junior Faculty Forum for International Law

Published on November 30, 2013        Author: 

This is a quick reminder that December 1, 2013, is the deadline for applications for the Third Annual Junior Faculty Forum for International Law, which will be held at the University of Melbourne on July 7, 8 and 9, 2014. Regrettably, no applications can be received after this date, and full details of the application process and requirements are here: www.annualjuniorfacultyforumIL.org

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Foreign Surveillance and Human Rights, Part 5: The Substance of an Extraterritorial Right to Privacy

Published on November 29, 2013        Author: 

This post is part of a series: Intro, Part 1, Part 2, Part 3, Part 4.

Between Utopia and Apology, Universality and Effectiveness

My previous posts have all dealt with the threshold question of whether individuals subject to surveillance overseas should be entitled to human rights in the first place. This post will deal with the substance of the right to privacy in this context, if the right is found to apply. Though my main focus has been on the threshold question of extraterritorial application, and though that question is conceptually distinct from the substantive content of any given right, there is a direct connection as a matter of policy between the inquiries on jurisdiction and on the merits. The more difficult, complex or politically controversial the merits question of whether the substantive right has been violated, the greater the temptation to say that the right simply does not apply. Courts in particular frequently resort to dismissing cases in limine even while furtively casting an eye on the merits, in order to avoid grappling with the merits openly. One cannot really reduce arbitrariness in resolving threshold questions without looking at what the consequences of doing so would be down the line.

I have argued in that regard that the case law on the extraterritorial application of human rights treaties, particularly that of the European Court, straddles a Koskenniemian divide between universality and effectiveness. On one hand we want to follow the moral logic of universality and protect human beings no matter where they are located; on the other we see the enormous practical and political difficulties of doing so. An expansive approach to extraterritoriality can thus be criticized as utopian, as presenting a normative vision which has nothing to do with the real world, whereas a restrictive approach can be dismissed as pure apology for unbridled, arbitrary and limitless exercise of state power which we would never accept domestically.

A persuasive argument regarding the threshold of extraterritorial application hence must also look at the substance and attempt to strike a better balance between universality and effectiveness. It must provide states and courts with sufficient flexibility in the extraterritorial context and not impose unrealistic burdens and restrictions with which they could never comply. Resistance to extraterritorial application flows in large part from the fact that most human rights case law was built in times of normalcy, and the fear that applying this case law to external situations would be rigid and inflexible. However, most human rights, including privacy, analytically employ balancing tests that can be used less strictly if this is justified by the circumstances. (Compare this, for example, with the rigidity of the US Fourth Amendment warrant requirement for searches and seizures, which even in the domestic context leads to narrow interpretations of what is a search or seizure).

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Foreign Surveillance and Human Rights, Part 4: Do Human Rights Treaties Apply to Extraterritorial Interferences with Privacy?

Published on November 28, 2013        Author: 

This post is part of a series: Intro, Part 1, Part 2, Part 3, Part 5.

Bearing in mind the three models of extraterritorial application that I outlined in my previous post, the only model which provides an easy, clear answer is the third one. If the negative obligation to respect the right to privacy is territorially unlimited, then any interference with this right in any place in the world would implicate the ICCPR or the ECHR. This is not to say that such interferences, whether through a mass surveillance program or a targeted one, would necessarily be illegal. Rather, any such interference would need to be substantively justified within the analytical framework of human rights treaties (i.e. is the interference prescribed by law; does it serve a legitimate aim; is it proportionate to that aim). No threshold question of jurisdiction would arise, and just like with purely internal surveillance the analysis would need to be one on the merits. But again, this is also not to say that on the merits internal and external surveillance would need to be treated equally in every respect – more on this in my next, and final, post.

The third model provides a clear answer on the threshold question of applicability, but also one that is very broad and immediately leads to examination of the merits which carries with it its own uncertainties. This is precisely why the third model may not be appealing to those actors, be they governments, secret services, courts, or what have you, who would want to avoid the difficulties of a merits analysis or the constrains of human rights treaties altogether.

I will thus proceed to situate the following discussion within the confined of the more established spatial and personal models. But as soon as I do so, we will see how we run into uncertainty, complexity, and potential for arbitrariness. This is at least partly due to the fact that technological advances in obtaining information have rendered the exercise of manual, physical power over individuals unnecessary or less necessary. While privacy law in the information era frequently developed by analogy to old-school physical searches or interferences, be it in domestic systems (say under the Fourth Amendment to the US Constitution) or in international human rights law, there comes a point at which such analogies are no longer feasible or are outright misleading.

But such analogies can be a useful starting point. I will now outline some scenarios of possible interferences with privacy through searches, interception, or surveillance, starting with the more physical and ending with the most virtual. Under existing case law all of these actions by state agents against individuals could in principle count as interferences with their privacy rights under either the ECHR or the ICCPR if these actions were to occur on the state’s own territory. The problem I want to get at is jurisdiction, i.e. whether human rights treaties would apply in the first place if the state engaged in such conduct extraterritorially under either the spatial or the personal model, and whether distinctions should be made in terms of jurisdiction between the physical and the virtual methods of gathering information.

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