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Home Articles posted by Iain Scobbie

The UK House of Commons calls for Palestine to be recognised as a State.

Published on October 14, 2014        Author: 

Yesterday, the UK House of Commons overwhelmingly adopted a resolution, by 274 votes to 12, which stated that “this House believes that the government should recognise the state of Palestine alongside the state of Israel”, which was amended to include the words “as a contribution to securing a negotiated two-state solution”. This resolution (or motion) is not binding on the government whose official policy is that it “reserves the right to recognise a Palestinian state bilaterally at the moment of our choosing and when it can best help bring about peace”. Government ministers did not vote on the motion in accordance with a long—standing procedural policy that they do not vote on motions introduced by backbenchers (members of Parliament who do not hold ministerial office), and a number of pro—Israeli MPs were absent from the debate, as well as much of the Conservative Party.

The House of Commons debate recalls that in the UN General Assembly when it adopted Resolution 67/19 ((29 November 2012) which “accord[ed] to Palestine non-member observer State status in the United Nations”. The voting for this resolution was 138—9, 41 abstentions (including the UK). The implications of that resolution were discussed in this blog, eg, here, here, and here.

The House of Commons vote is essentially symbolic rather than determinative, and the BBC has reported that a former Foreign Secretary, Sir Malcolm Rifkind, who supports a two—State solution in the Israel—Palestine conflict stated during the debate:

“Symbolism sometimes has a purpose, it sometimes has a role, but I have to say you do not recognise a state which has not yet got the fundamental ingredients that a state requires if it’s going to carry out its international functions and therefore, at the very least, I would respectfully suggest this motion is premature.”

Ha’aretz, one of the leading Israeli newspapers, in its report on the vote, noted that Israel’s ambassador to the UK, Daniel Taub, decided not to give interviews in advance of the vote, in an attempt to ensure that because there was no official acknowledgment by Israel, this would undercut its importance.

The symbolism of this motion, however, goes beyond the vote and beyond the Chamber of the House of Commons. It might well reverberate in international circles, and Ha’aretz has also reported that the UK ambassador to Israel, Matthew Gould, while restating that the vote would not alter the government’s view on recognition, that the issues raised by this debate should not be ignored:

“Separate from the narrow question of recognition, I am concerned in the long run about the shift in public opinion in the U.K. and beyond towards Israel,” [says Gould.] “Israel lost support after this summer’s conflict, and after the series of announcements on settlements. This Parliamentary vote is a sign of the way the wind is blowing, and will continue to blow without any progress towards peace.”

 

UK House of Commons debate on the use of force in Iraq, 26 September 2014

Published on September 25, 2014        Author: 

On September 26th, the UK House of Commons will debate a Parliamentary motion which seeks to authorise:

Her Majesty’s government, working with allies, in supporting the government of Iraq in protecting civilians and restoring its territorial integrity, including the use of UK air strikes to support Iraqi, including Kurdish, security forces’ efforts against ISIL in Iraq.

The motion expressly states that it does not endorse air strikes in Syria, the authorisation for which would require a separate vote in Parliament, and that the government will not deploy UK troops in ground combat operations. The text of the motion is here. The UK government’s legal position is that there is “a clear and unequivocal legal basis for deployment of UK forces”.  A summary of this position is here.

So what do you think?

 

The Killer Whales of The Hague

Published on August 28, 2014        Author: 

It was a pleasure to read Gleider’s thoughtful monograph The International Court of Justice and the Judicial Function, which presents a constructivist account of the operation of the International Court and the role of its judges. There is much to commend in this work, which starts squarely from the position that the analysis of international courts should not be based on constitutional expectations drawn from domestic systems. I particularly appreciated the attention he paid to the Court’s deliberative process: like him, I think that this is too often ignored in the analysis of the Court’s jurisprudence. I am, however, less sanguine than he is about the implications of this process for the normative consequences of the Court’s jurisprudence.

Gleider has a robust view of the Court’s role in the development of international law:

Once a general statement on a legal principle or rule has been elucidated by the Court, channelled into the judicial form and given the imprimatur of judicial authority that accompanies the Court, both parties before it and non-parties cannot in good faith contest that principle. The existence of that principle itself becomes part of international legal argument, offering a body of evidence an materials that can be relied on by States, and thus stabilizing their ‘normative expectations’. (p. 90: notes omitted)

While it cannot be denied that the Court refers to its own jurisprudence continuously and is, to say the least, loathe to depart from its earlier rulings, I wonder whether it might not be more appropriate to view the Court’s role as more transactional in nature, as I have argued before. Gleider dismisses this approach as inappropriate, arguing that this would reduce adjudication “to a private function, where the Court is an instrument of the parties before it” (p. 93). But isn’t this the point? In contentious cases, the issues are defined by the arguments of the parties which, in terms of argumentation theory, sets the field of discourse for the Court. But this field of discourse is necessarily incomplete as constraints of time and length are inherent in all pleadings – if nothing else, the Court’s attention cannot be prolonged indefinitely. Not all the relevant material might be placed before the Court, but only those aspects that the parties wish to present and emphasise. In contrast, given the (generally) wider participation in advisory proceedings, should the rulings these contain be seen as more “authoritative” than those in contentious cases? Gleider comments that the Court’s apparent insistence on the essentially inter partes nature of contentious cases is a “fiction” which “sits uneasily with the Court’s robust assertion of its powers in the exercise of its advisory function, where it has seemed prepared to assume functions of a more public character” (p. 93). Increased participation might be a reason for that.

But to turn to the Court’s collegiate deliberative practice, which Gleider argues was “designed precisely to bestow a heightened authority on the collective judgment of the Court”. Read the rest of this entry…

 

Lieber Prize 2014: Call for Submissions

Published on November 10, 2013        Author: 

It’s that time of the year again…

The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.

  Read the rest of this entry…

 
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Why is David Cameron in this blog’s attic, naughtily rattling my cage?

Published on September 2, 2013        Author: 

You might remember me.  I am the editor who doesn’t write much, and I have been less engaged here than I would have liked for the past few months as I am in the process of moving to Manchester.  I did prepare an entry on the legal nonsense currently being spewed, principally by the UK, on forcible intervention in Syria, but Dapo posted first (here and here and here) and, to be honest, he did so extremely well.  I can add little to what he has said.

On the other hand, as someone said in the comments to one of Dapo’s posts, at least international law is being discussed in the UK parliament.  It is a pity that the government has been doing this so blatantly badly.  Former Australian foreign minister Gareth Evans, who was central in formulating the responsibility to protect doctrine, has apparently accused the UK government of “making things up as it goes along”.   On a brighter note, the House of Commons rejected the government’s motion that would have opened the door to possible UK intervention in Syria, by 285 votes to 272, with 91 members of parliament absent.  Read the rest of this entry…

 

Discussion of David Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum”

Published on April 16, 2013        Author: 

Over the next week or so we shall be hosting a discussion of Professor David Kretzmer’s latest article “The inherent right to self-defence and proportionality in jus ad bellum which has just been published in the first issue of volume 24 of the European Journal of International Law.  The discussion will be started by Dr Noam Lubell (University of Essex), and then be continued by Dr Gina Heathcote (SOAS, University of London), Thomas Lieflander (St Hugh’s College, Oxford), Professor Mary Ellen O’Connell (Notre Dame), and culminate in comments by Professor Kretzmer himself.

Professor Kretzmer’s article is free to view at the link above.  Please read it and join in the conversation.

Filed under: EJIL Analysis
 
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Discussion of Kokott and Sobotta, “The Kadi case – Constitutional Core Values and International Law – Finding the Balance?”

Published on January 13, 2013        Author: 

Over the next few days, we shall be hosting a discussion of Juliane Kokott and Christoph Sobotta’s article “The Kadi case – Constitutional Core Values and International Law – Finding the Balance?” which was published in the final issue of volume 23 of the European Journal of International Law (2012).  Juliane is an Advocate General at the Court of Justice of the European Union, and Christoph is a legal secretary in her chambers.  The first commentary on this article is by Nele Yang, who is a PhD candidate and research fellow at the Max Planck Institute for Comparative Public Law and International Law, and the second by Dr Antonios Tzanakopoulos, who is a lecturer in public international law at the University of Oxford and a fellow of St Anne’s College.  The final post in this discussion is a reply to Nele and Antonios’ comments by Juliane and Christoph.  You are invited to join in this conversation.

 
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In Bed with Alcibiades: Theory and Doctoral research

Published on January 4, 2013        Author: 

Douglas Guilfoyle has published a couple of very useful practical pieces here on the process of doing a PhD in international law (here and here).  Professor Andrea Bianchi recently asked me to speak to the new law research students at the Graduate Institute of International and Development Studies in Geneva on the importance of theory in doctoral research.  This is a slightly revised version of the lecture I gave.

In bed with Alcibiades: theory and doctoral research

I have been reading a lot about Socrates recently.  I am reading about him rather than reading him because he didn’t leave any texts behind, so what we know or think we know about what he thought and argued comes from secondary sources, from philosophers such as Plato and Xenophon, and from satirists like Aristophanes.  But some contemporary Socratic experts, such as Vlastos, argue that it is unclear what precise ideas should be ascribed to him.

I know why I am reading about Socrates: I am planning to do some work on theories of rhetoric, and especially of legal rhetoric, soon and so I want to read about Socrates and the Sophists to provide a background to Aristotle’s Rhetoric.  From there I’ll move forward to more contemporary theorists such as Alexy, Perelman, and Habermas.  I might have to stop by some of the Roman authors, but maybe they were more practitioners rather than theorists of rhetoric.  I know the start and I know the finish, but I’ll have to find out what lies between.  But if one did know what was there before one started, then why do it?  That isn’t research.

Read the rest of this entry…

 
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Francis Lieber Prize

Published on October 10, 2012        Author: 

The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.

Criteria: Any work in the English language published during 2012 or whose publication is imminent at the time of submission may be nominated for this prize. The re-submission of works which have already been considered for this prize is not allowed. Entries may address such topics as the use of force in international law, the conduct of hostilities during international and non international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

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Filed under: EJIL Reports
 
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Justice Levy’s Legal Tinsel: The Recent Israeli Report on the Status of the West Bank and Legality of the Settlements

Published on September 6, 2012        Author: 

In February 2012, the Israeli government appointed a commission, headed by former Supreme Court Justice Levy, to “examine the status of building in Judea and Samaria”—in other words, to examine the legality of settlements, whether authorised by the Israeli government or not, in the West Bank.  On 9 July 2012, the Commission’s report was released.  The report is in Hebrew, but its conclusions and recommendations have been translated into English by one of the Commission’s members, Alan Baker, and an unofficial translation of its arguments regarding international law has been published on a pro-Israeli US blog.

The reasoning of the Report, such as there is, is a travesty of legal argumentation.  It is selective in the issues it chooses to address, and perverse in its interpretation of international law. The arguments employed with regard to the status of the West Bank and legality of the Israeli settlements there are not novel.  Indeed, they are well-worn, tired, and have been thoroughly discredited in the past.  They contradict established legal opinion, both international and Israeli.

The Commission’s conclusions fall into two categories, one dealing with international law and the other with domestic Israeli law.  The Report states:

“Our basic conclusion is that from the point of view of international law, the classical laws of “occupation” as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria [ie, the West Bank] spanning over decades.

In addition, the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered to be applicable and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria.

Therefore, according to International Law, Israelis have the legal right to settle in Judea and Samaria and establishment of settlements cannot, in and of itself, be considered to be illegal.”

Read the rest of this entry…