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The Genesis of Lex Specialis

Published on April 30, 2014        Author: 

When it comes to describing the relationship between human rights and international humanitarian law, the lex specialis principle is frequently taken for granted, as if it has somehow always been there, carved in stone. But what is its actual genesis? By ‘genesis’ I do not mean its ancient history. Yes, it was in the Digest of Justinian. But, honestly, who cares? We have little or no idea of what exactly the lawyers of the Roman and Byzantine empires meant by the expression and how they applied it in practice, and indeed there are several different ways of conceptualizing lex specialis.

My question is rather this: when did we, the community of international lawyers, start using this language to describe the relationship between IHL and IHRL? The timeframe for answering that question is necessarily more limited and easier to manage, since IHRL did not become a part of public international law until after the Second World War. I am obviously too young to have direct experience of this, but my impression has been that during the first fifty years or so of their co-existence very little thought was given to how IHL and IHRL would interact, and when the issue was discussed it was generally not framed in terms of lex specialis. My hypothesis is thus that the term entered common parlance among the international lawyers who have dealt with the issue only after the end of the Cold War, and specifically only after the ICJ’s 1996 Nuclear Weapons advisory opinion, para. 25, when the Court itself first used the term:

In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

To prove or disprove this hypothesis, which is what I am doing in a paper I’m writing right now, I need to do two things. First, I need to establish how the Court itself got the idea to use the lex specialis principle to describe the relationship between the rules of IHL and IHRL. Was it complete innovation on its part? Did it come from the pleadings of some of the participants in the advisory proceedings? Or did it come from generally accepted scholarship on the issue? Second, I need to look at the scholarship itself, specifically those works that examined the issue before the Nuclear Weapons opinion and immediately after it.

The pre-1996 scholarship I will leave aside for the purpose of this post, but from what I’ve read so far there are few, if any references to the lex specialis principle as a solution to normative conflicts between IHL and IHRL (I will obviously very much appreciate it if readers could point me to any such references in scholarship in whatever language). But I’ve read through all of the pleadings in the two nuclear weapons cases (the WHO and GA requests), both written and oral. And out of the 40 or so states that appeared before the Court in the two cases, do you know how many referred to the lex specialis principle? Just one – the United Kingdom.

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More on the UN and Surveillance and Privacy in the Digital Age

Published on April 17, 2014        Author: 

The Office of the High Commissioner for Human Rights is now conducting a consultation for the purpose of preparing the High Commissioner’s report pursuant to the UN General Assembly’s resolution on privacy in the digital age. Some of the major privacy/human rights NGOs have now made their submissions public: here is the paper submitted jointly by Privacy International, Access, Electronic Frontier Foundation, Article 19, Association for Progressive Communications, Human Rights Watch, and the World Wide Web Foundation; and here is the submission by the Center for Democracy and Technology. The NGOs argue, inter alia, that Article 17 ICCPR applies to (extraterritorial) surveillance activities and that the bulk collection of communications data is inherently disproportionate.

UPDATE: All of the submissions are now available on the OHCHR website.

Quoting verbatim from the GA’s resolution, the Human Rights Council has also decided to convene a panel on the right to privacy in the digital age at its 27th session, to be held in September. The multi-stakeholder panel is to discuss ‘the promotion and protection of the right to privacy in the digital age in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale, also with a view to identifying challenges and best practices, taking into account the report of the United Nations High Commissioner for Human Rights requested by the General Assembly in its resolution 68/167.’

Readers may also recall that a few months ago I did a series of posts on human rights and foreign surveillance. I’ve since written up a more developed and expanded article based on that series, which takes into account developments as of March 2014, including the Koh memos and the concluding observations of the Human Rights Committee on the US fourth periodic report. The article will be published in the Harvard International Law Journal, and the draft is now available on SSRN. Comments are as always welcome; the abstract is below the fold.

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Announcements: The UK and the ECHR Conference at Leicester; EJHR Anniversary;

Published on April 5, 2014        Author: 

1. The UK and European Human Rights: A Strained Relationship? College Court, Leicester, 23-24 May 2014. This two-day conference will focus upon the topical and contentious issue of the relationship between the UK and the European systems for the protection of human rights. This will encompass both the UK’s relationship with the European Court of Human Rights in Strasbourg and the additional layer of human rights protection through the European Union. It seeks to contribute to on-going debates in the UK, and elsewhere in Europe, about the relationship between the European Court of Human Rights and national courts, which at times seems to be (perceived as) particularly antagonistic in the UK.  The conference will bring together judges, barristers and solicitors, politicians, representatives of NGOs and the media, and academics in the field. More information here.

2. The European Journal of Human Rights was launched in early 2013 as a response to the new pathways through which human rights evolve. International treaties and new laws continue to matter. But the development of human rights has become, first and foremost, the result of a dialogue between courts, at all levels — international, regional and national –, and other human rights bodies, who contribute to shape the “common law” of human rights in an organic, networked fashion. The Journal therefore aims to encourage doctrinal thinking and dialogue across legal venues, highlighting how concepts and ideas migrate from forum to forum, permanently reshaping human rights law. Under the supervision of Professor Olivier De Schutter, its Editor-in-chief and currently the UN Special Rapporteur on the right to food, the Journal publishes high quality review articles which are systematically submitted to a “double-blind peer-review” mechanism. For more on the Journal, which welcomes submissions either in French or in English, please visit the website — or write to bruno.hardy {at} uclouvain(.)be.

3. The Human Rights Centre at the University of Essex is holding a summer school on Human Rights Research Methods at its Colchester campus from 30 June to 5 July 2014.  Methodology has a direct bearing on the strength, persuasiveness and legitimacy of human rights research findings and their impact on policy and practice.  Strong methodology is also a central requirement in order to secure funding.  Yet, we often focus on the substance of human rights without sufficient attention to the methods used.  This summer school seeks to fill that gap by providing the core methods and skills needed to carry out human rights research whether documenting human rights violations, drafting human rights reports and articles or preparing funding bids.  Participants will learn everything from interviewing victims to researching in repressive societies to becoming ‘quantitatively literate’ in human rights research.  The teaching team includes anthropologists, lawyers, political scientists, psychologists and sociologists, three current and former UN Special Rapporteurs, a member of the UN Committee against Torture, the Interim Director of Law and Policy at Amnesty International and donors, all with significant experience on the theory and practice of human rights.  It is an ideal course for human rights professionals working in NGOs, international organisations and government, academics and postgraduate students.  To find out more, visit:

4. The Human Rights Centre at the University of Essex has launched the Essex Human Rights Centre Blog which is dedicated to the inter-disciplinary discussion of the theory and practice of human rights. The blog is intended to provide a forum whereby practitioners and academics from different disciplines can learn about each other’s research, work, and activities. By enabling the discussion of contemporary and enduring human rights challenges from the perspective of different disciplines and fields of expertise, it hopes to facilitate the identification of new and innovative approaches to the challenge of securing human rights: it is hoped that a multi-disciplinary forum will promote inter-disciplinary thinking. For more information, please visit the welcome post.

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Yanukovych Confirms He Invited Russian Intervention

Published on April 2, 2014        Author: 

In an interview with AP today, the ousted Ukrainian president Viktor Yanukovych confirmed that he invited Russian military intervention in Ukraine. Readers will remember the Russian ambassador waiving of a letter to that effect in the Security Council, without actually making the copies of the letter available. I may be wrong, but I think this is the first time Yanukovych actually admitted that he made the invitation (which does not mean, of course, that it was legally valid, or that the invitation, such as it was, extended to the annexation of Ukrainian territory):

Putin said last month that Yanukovych had asked Russia to send its troops to Ukraine to protect its people — a request seen as treason by many Ukrainians. Asked about the move, Yanukovych said he had made a mistake.

“I was wrong,” he said. “I acted on my emotions.”

A mistake, was it? I’m sure there must be some equivalent for ‘no backsies’ in Russian.

Filed under: EJIL Analysis, Use of Force

ICJ Decides the Whaling in the Antarctic Case: Australia Wins

Published on March 31, 2014        Author: 

This morning the ICJ delivered its judgment in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). Australia won on almost all counts, and by 12 votes to 4. The Court’s principal reasoning is that while Japan’s whaling programme involved ‘scientific research,’ a concept that the Court did not want to define with particular precision, it was still not conducted for the purposes of scientific research, and thus violated Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling. The Court took a number of factors into account in making this determination, including: decisions regarding the use of lethal methods; the scale of the programme’s use of lethal sampling; the methodology used to select sample sizes; a comparison of the target sample sizes and the actual take; the time frame associated with a programme; the programme’s scientific output; and the degree to which a programme co-ordinates its activities with related research projects. The determination in the Court’s view required an objective standard of review, rather than a deferential one which would take the state’s professed objectives at face value. It thus found that bearing in mind the design of Japan’s programme, its minor scientific output etc,  it was not set up for the purposes of scientific research. In terms of the remedy, the Court ordered Japan to revoke existing whaling permits and refrain from authorizing new ones under the current whaling programme.

The judgment summary is available here, the judgment itself and a number of separate opinions here. We will have more coverage of the case in the week to come.



Human Rights Committee’s Concluding Observations on the United States

Published on March 27, 2014        Author: 

Our friends at Just Security have just published an advance unedited version of the Human Rights Committee’s concluding observations on the fourth periodic report of the United States, as adopted yesterday by the Committee. The observations address many issues, but some of the highlights involve the extraterritorial application of the ICCPR, the use of drones, and NSA surveillance. For example, in para. 4:

The Committee regrets that the State party continues to maintain its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, despite the contrary interpretation of article 2(1) supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and state practice. [the Committee thus recommends to the US to:]  Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances, as outlined inter alia in the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant;

With regard to the CIA ‘enhanced interrogation’ program under the previous US administration, the Committee was especially concerned about the impunity of the perpetrators of torture and other forms of ill-treatment, and recommended the investigation and prosecution especially of ‘persons in command positions,’  and that the ‘responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.’ (para. 5)

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Announcements: Summer Schools at Nottingham, EUI and Parnu; Investment Law and Trade in Services Workshop, Lausanne; Essay Prize SIEL

Published on March 22, 2014        Author: 

1. The University of Nottingham Human Rights Law Centre Summer School on the Rights of the Child will run from 23 to 27 June 2014. The objective of this exciting programme is to consider issues concerning the rights of the child that are a matter of current legal, political and societal attention, both internationally and comparatively. These include violence against children, child participation, child poverty, and child rights monitoring and advocacy. There will be sessions devoted to international and regional child rights law, including the work of the international courts and treaty monitoring bodies mandated to consider violations of the rights of the child. The Summer School faculty are all highly experienced international experts on child rights, with backgrounds in advocacy, research and practice. The programme is available here. For further information please visit   or contact Miss Kobie Neita – +44 (0)115 84 66309 – hrlcsummerschool {at}

2. The 3rd Martens Summer School on International Law, organised by the University of Tartu Centre for EU-Russia Studies or CEURUS in the Estonian coastal resort town Pärnu, will deal with the comparative aspects of international law and human rights, particularly focusing on the issues related to Russia and Eastern Europe. One of the underlying ideas is to bring together Western, Russian and naturally also Estonian international law scholars, practitioners and students. Each year we invite 4 distinguished lecturers from different countries and each lecturer will present 5 lectures over 5 days of the week. More information here.

3. Call for Papers – International Investment Law and Trade in Services, 18-19 September 2014, University of Lausanne (Switzerland)  – This workshop [organized by Andreas R. Ziegler (University of Lausanne), Eric de Brabandere (Grotius Centre, Leiden University) and Tarcisio Gazzini (VU Amsterdam)] will explore the specific problems related to foreign direct investment in the services sector. Proposals for papers are particularly welcome in the following thematic areas: Investment law and public services;  Interaction between investment and services chapters in RTAs; Investment law and competition issues in services; Investment law and network industries; Problems of investment liberalization and protection in specific services sectors like telecommunications, financial services, utilities distribution, infrastructure projects, and security or professional services. Proposals should be submitted to Ms. Jorun Baumgartner (jorunkatharina.baumgartner {at} unil(.)ch) before 30 April 2014. The selected participants will be notified by 31 May 2014.

4. The Academy of European Law at the European University Institute (EUI) holds two summer courses each year, on Human Rights Law and the Law of the European Union.  The Academy’s Summer Courses are renowned for their innovative and cutting-edge topics, combined with the highest standards of academic content presented by leading scholars and thinkers. Each year the courses attract highly qualified participants from all around the world and the mix of participants from different backgrounds makes the experience of attending the summer courses a very rewarding one. The 2014 Human Rights Law course (16 June – 27 June) comprises a General Course on ‘21st Century Human Rights’ by Harold Hongju Koh (Sterling Professor of International Law, Yale Law School) and a series of specialized courses on the topic of ‘Freedom of Religion, Secularism and Human Rights’. We are also pleased to have two distinguished lectures by Bruno Simma (Judge at the Iran-United States Claims Tribunal; former Judge at the International Court of Justice) and Joseph H.H. Weiler (President of the European University Institute). The 2014 Law of the European Union course  (30 June – 11 July) comprises a General Course on ‘The Internal Market as a Legal Concept’ by Stephen Weatherill (Jacques Delors Professor of European Law, Oxford University) and a series of specialized courses on the topic of ‘EU Legal Acts: Challenges and Transformations’. The Summer School will also include a distinguished lecture by Marta Cartabia, an EUI alumna now Judge at the Italian Constitutional Court and Professor of Constitutional Law, Bicocca University in Milan.  The deadline for applications  is Thursday 10 April 2014. For further information, visit the Academy’s website at

5. The Society of International Economic Law welcomes submissions to its 2014 Essay Prize Competition. Submissions may be on any area of international economic law, except for international commercial arbitration and EU law, and the deadline is 30 September 2014. The Prize consists of £200, plus £300 worth of books from Cambridge University Press and a 3 year print subscription to the World Trade Review, and an invitation to present at the next SIEL Biennial Conference. The winning essay will be considered for publication by the World Trade Review. The Essay Prize Competition is open to students, practitioners and academics whose last degree was after before 30 September 2009. Further details are available here.

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Crimea, Kosovo, Hobgoblins and Hypocrisy

Published on March 20, 2014        Author: 

One of the more remarkable aspects of the whole unfortunate Ukraine episode is the rampant hypocrisy on part of all of the major players involved in the dispute. Those same Western states that unlawfully invaded Iraq, and supported Kosovo’s secession from Serbia while endlessly repeating that Kosovo was somehow a really super-special sui generis case, are now pontificating about the sanctity of the UN Charter and territorial integrity.  On the other hand, that same Russia that fought two bloody wars in the 1990s to keep Chechnya within its fold, that same Russia that to this day refuses to accept the independence of Kosovo, has now rediscovered a principle of self-determination that apparently allows for the casual dismemberment of existing states.

I am not saying that no distinctions can be drawn between the various situations I just mentioned. In particular, I agree with many of the arguments in the recent posts by Christian Marxsen and Jure Vidmar about the differences between Crimea and Kosovo, the critical one being that Crimea’s secession is the direct result of Russia’s unlawful military intervention against Ukraine, whereas Kosovo’s secession was not tainted to the same extent by NATO’s 1999 intervention due to the subsequent adoption of Resolution 1244, which authorized the presence of international forces in Kosovo while disabling Serbia from taking military action to suppress Kosovo’s secession. I would also note that it is more difficult to levy charges of hypocrisy against international lawyers, rather than states or politicians – and I hope that speaks well of our profession. Most international lawyers after all considered the 1999 intervention against Serbia or the 2003 invasion of Iraq to have been unlawful, and most justifiably feel the same way with regard to Russia’s intervention in Ukraine.

But even if Kosovo and Crimea are legally distinguishable, they are still close enough. The West’s position on Crimea is undeniably undermined by their previous stance regarding Kosovo, and they can only blame themselves for that. Just consider President Putin’s speech justifying the annexation of Crimea by reference to Kosovo and the ICJ’s advisory opinion:

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Announcements: Course in Munich; 3rd Annual Cambridge J. Int & Comp. Law Conference; Symposium at Durham

Published on March 15, 2014        Author: 

1) The Munich Advanced Course in International Law (MACIL) is a summer school held at Ludwig Maximilians University Munich and dedicated to questions of Public International Law. Its next session, entitled A No Man’s Land in International Law? Towards a New Public International Law for the Cybersphere”, will take place from 4 to 15 August 2014. Classes will aim at discussing the challenges posed by the cybersphere to several aspects of ‘classical’ Public International Law doctrine. This will include, amongst others, questions of cyber warfare, cyber regulation, the applicability of the rules on state responsibility and jurisdiction as well as the adaptation of norms of international economic law to conducts in virtual surroundings. The 2014 faculty will include Oren Gross (Minnesota), Jutta Brunnée (Toronto), Thomas Cottier (Bern), Terry Gill (Amsterdam) and others. For further information please visit the MACIL homepage.”

2) Registration for the Third Annual Conference of the Cambridge Journal of International and Comparative Law is now open. The CJICL Conference  will be held on 10–11 May 2014 at the St John’s College Divinity School, University of Cambridge under the theme: “Stepping Away from the State: Universality and Cosmopolitanism in International and Comparative Law”. This Conference will explore approaches that question the traditional state-centric view of international and comparative law.  The idea of universality suggests that international law applies equally and indiscriminately across domestic legal systems, and within sub-systems of international law itself. Cosmopolitanism conceives of the world as a single entity, with resonances between people irrespective of their location, nationality and culture, and asks how legal actors can access legal regimes beyond their state’s domestic framework.

Some of the conference highlights will include: Keynote address by Judge Kenneth Keith of the International Court of Justice; Keynote debate between Judge Angelika Nussberger (European Court of Human Rights) and Lord Kerr (Supreme Court of the United Kingdom); Launch of Dr Kate Miles’ recently published book, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (Cambridge University Press, 2013); Forty presentations over more than ten panels.
3) The relationship between law and negotiation is increasingly at the forefront of the international agenda. International organisations whose role includes the mediation of peace, such as the MediationSupport Unit of the United Nations, and the European Union, are seeking to understand the relationship between mediation, law and justice in conflict and post conflict societies. While such organisations cknowledge that international law places normative constraints on the practice of peace making, they also recognise that key principles ofmediation, such as consent, inclusivity and local ownership, are crucial to the success of negotiated peace processes. These questions have risen to the top of international policy agendas, but there is to date a lack of academic scrutiny of how the relationship between law and negotiation itself it to be negotiated. Research to date has focused on discrete aspects of the relationship between law and negotiation, such as the role of human rights in peace agreements, or in setting transitional justice priorities. It has not addressed the overarching question of the relationship between law and negotiation that underpins these divisive issues.
On Thursday 20th and Friday 21st March a symposium hosted  by Law and Global Justice at Durham will address the ways in which law and negotiation can play a mutually supportive role in the conflict and post conflict environments, speakers and invited guests at the symposium will discuss three key themes; those of violence, of culture and gender. Speakers include Ms Rashida Manjoo, (UN Special Rapporteur on Violence Against Women) Mr Francesc Vendrell, (Former EU High Representative to Afghanistan); Dr Sari Kouvo (University of Gothenburg & Afghanistan Analysts); Dr Christopher Lamont (University of Groningen); Dr Aisling Swaine (George Washington University); Mr Martin Waehlisch (European University Viadrina); Dr Richard Collins (University of Sheffield); Dr Jeroen Gunning (Durham Global Security Institute). For further information or to register to attend please email CatherineTurner (Catherine.turner {at}
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Announcements: Society of Legal Scholars’ Annual Conference, Nottingham; ESIL Lecture, Geneva

Published on March 9, 2014        Author: 

1. Planning is now in hand for the 2014 conference of the Society of Legal Scholars.  The SLS is the learned society for those who teach law in a university or similar institution or who are otherwise engaged in legal scholarship in Britain and Ireland.   This year’s conference will be held at the University of Nottingham on 9-12 September 2014. The conference theme is ‘Judging in the 21st Century’.

The International Law section will be meeting in the first half of the conference, on Tuesday 9 and Wednesday 10 September 2014, and proposals for papers to be presented at the four sessions that have been allocated to the group are now invited.  Discussions of any aspects of public international law are welcome and proposals need not relate to the conference theme.  The deadline for the submission of proposals is 11 April 2014, and proposals should include a provisional title, a short abstract (a paragraph detailing what the paper is about) and an indication of the author’s willingness to participate in the conference.  If you do wish to offer a paper, please contact Prof. Matthew Happold, co-convenor of the International Law section.

2. The European Society of International Law (ESIL), together with the American Society of International Law (ASIL) and the MIDS – Geneva LL.M. in International Dispute Settlement will co-organize a lecture entitled From the ICJ to the US Supreme Court : The Vienna Convention on Consular Relations, International Law, and the US Constitution. This lecture will be delivered by Mr. Donald Donovan, Partner at Debevoise & Plimpton, LLP, and President of the American Society of International Law, on Tuesday, 25 March 2014, 18h15 at the Auditorium Ivan Pictet, Maison de la Paix, Chemin Eugène-Rigot 2, in 1202 Geneva. The lecture will be followed by a cocktail reception. Please register by sending an email to : info {at} mids(.)ch

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