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Curriculum vitae: A Prequel (Part II)

Published on January 5, 2016        Author: 

This is the second part of the inaugural lecture of Roger O’Keefe, Professor of Public International Law at University College London (Part I is available here). In the lecture he teases out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet.

All characters depicted in this tale are fictional, sort of. Any resemblance to academics, judges or journals living or dead is intended in a jesting and friendly spirit. All legal actions should be directed in the usual way to Professor Joseph Weiler.

But it was not all beauty, truth, and miscellaneous high-mindedness. The international legal system, while its own reality, was predicated on the external reality—the real reality, as it were—of the practice of states. It was ultimately positivist, and as an international legal positivist D. H. G. H.-G. Salamander was necessarily a down-and-dirty empiricist. And what down-and-dirty data, what incident and idiosyncrasy with which to work! All human life was there! The agony and the ecstasy, the tragedy and farce, the stuff and nonsense of international affairs past and present, visibilium omnium et invisibilium! The human world, the bringer of plurabilities, its song be sung, its rill be run! Like the sea, it teemed with life. So too knew it death, the destroyer of worlds, Assyrian, wolf, and fold all kneeling before it and trembling. The divine comedy! The encyclopaedia satanica! He sang the corpus eclectic. Out of this Dionysian frenzy, out of the fury and the mire of human veins, it was not only the distinctive service but also a large part of the fun of the international lawyer to discern and to elaborate with Anzilottian clarity a normative logic.

*

As for whether at heart he was an international legal apologist or critic, Salamander took the view that he could rightly no more praise or condemn international law for justice or injustice than he could a language for a kind or hurtful word. There was no use indicting laws. They were no shoddier than what they peddled. Law, to quote again the immortal Austrian, was simply ‘a specific social technique for the achievement of ends determined by politics’ [Hans Kelsen, The Law of the United Nations. A Critical Analysis of Its Fundamental Problems, with Supplement (New York: Frederick A Praeger, 1950), xiii]. International law, as someone else would write somewhere, was no more than a vehicle for human values, a language of human self-ordering, a particular praxis of human willing. If the rules were warped, the blame lay with the crooked timber.

*

Yet for all her tender ministrations, Eunomia remained a demanding mistress. She also remained a demanding read, or at least her namesake did, although no-one—the London cabbie, the troika (or trinity) of sage, prophet, and poet, and least of all D. H. G. H.-G. Salamander—minded too much.

Yes, she was a demanding mistress alright. So much to write, so little time, to borrow from Wonka. The job involved so much drudgery. Tomorrow and tomorrow and tomorrow crept in this petty pace from day to day. Yet here were his friends pumping out publications as if by colonic irrigation! The pugnacious Georgian, the feisty Serb, the neotenous Nigerian, the bouffanted Belgian … Goddammit, did that well-coiffed Walloon never sleep? The productivity of these characters was demoralising! Just when he thought it was safe to go back in the water, out leapt another book, article, chapter or blog-post by one of these men possessed! Read the rest of this entry…

 

Curriculum vitae: A Prequel (Part I)

Published on January 4, 2016        Author: 

In his inaugural lecture, Roger O’Keefe, Professor of Public International Law at University College London, teases out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet.

All characters depicted in this tale are fictional, sort of. Any resemblance to academics, judges or journals living or dead is intended in a jesting and friendly spirit. All legal actions should be directed in the usual way to Professor Joseph Weiler.

 PACTA VIRVMQVE CANO

A long time ago, in a hemisphere far, far away, was born a man by the grandiloquently improbable name of Dionisio Hans Georg Hans-Georg Salamander. Reared in a home girt by sea and seared by summer infernos, he was a creature of both water and fire. As a boy, he enjoyed endless days at the beach and, as something of a juvenile versifier, endless nights in the embrace of Calliope, Euterpe, Erato or Thalia, depending on which was free and could bear to spend a warm summer’s evening humouring an underage wordsmith. Young Dionisio Hans Georg Hans-Georg did well at school and, after what could only be called a modicum of tertiary educational peripatesis, his grown self settled on a career as an international lawyer. Well, it could only be called that by a lawyer.

More precisely, D. H. G. H.-G. Salamander settled on a career as an academic international lawyer.

*

‘Pah!’, scoffed a City solicitor friend, informed one drunken night of Salamander’s vocation. ‘Those that can, do. Those that can’t, teach.’

‘Ho, ho!’, replied Salamander sarcastically. ‘Those that can, do. Those that can’t, solicit.’

Absurdly early next morning, nursing a hangover, a cut lower lip and the forlorn wish that his jeu de mot had been by way of l’esprit de l’escalier, Salamander was up and at ’em, slaving over a manuscript to the inexorable deadline of some unrelenting editorial Fury. Absurdly early … Inexorable … L’esprit de l’escalierLo spirito … Der Geist Der Volksgeist … Der Rechtsgeist ... L’esprit des lois La solidarité sociale Le dédoublement fonctionnel ... Voiceless labiodental fricative on cut lower lip … La compétence de la compétence … Forlorn … Forlorn! The very word was like a bell to toll him back from the sibilant fricative of article 36(6) of the Statute of the International Court of Justice to his sole self! And sole was the word. It was a solitary calling. Eunomia was a demanding mistress. To mix metaphors.

*

In terms of the legal philosophy to which he subscribed, D. H. G. H.-G. Salamander was a positivist. Given the practical difficulty in a world of sometimes radical moral and political pluralism of ascertaining from reason an objective notion of the good, he believed that the inter-subjective approximation of the latter derivable, directly or at one adjudicatory remove, from the premise that international law was what states—through their governments, as the representatives of their peoples—mutually agreed it to be was the most legitimate and prudent basis for an international legal order.

This was not to say that said Salamander was ideologically wedded to the privileged position of states within the international legal order of his day. International legal positivism, to his way of seeing things, had nothing inherently to do with states. What legal positivism meant was simply that the law was whatever an authorized temporal lawmaker validly said it was (or ‘posited’, as in ‘lay down’), instead of being wholly deducible from certain first principles or divinely ordained; and in the international legal system as it then stood, it just so happened that the authorized temporal lawmakers were first and foremost states. Read the rest of this entry…

 

Immunity ratione materiae from extradition proceedings: A rejoinder to Thiago Braz Jardim Oliveira

Published on September 5, 2013        Author: 

Roger O’Keefe is University Senior Lecturer and Deputy Director of the Lauterpacht Research Centre for International Law, University of Cambridge.

Before I engage with the substance of Thiago Braz Jardim Oliveira’s excellent reply to my British Yearbook of International Law casenote and Oxford talk (available here) on the Khurts Bat case, I would like to thank him for bringing both to the attention of a far wider audience than they have likely enjoyed until now. We all spend ages working on these things while others are stopping to smell the flowers, often only for the fruits of our labours to lie unread or unheard by all bar those on whom we pull a weapon. So muito obrigado, Thiago.

By way of rejoinder to what Thiago says, I will make only a few brief points.

Any proceedings before a court are by definition judicial proceedings, whether or not they involve the adjudication of the legality of given acts. In those legal systems where a request for extradition is dealt with, at least at a preliminary stage, by a court (and I have always laboured under the belief that this was what made extradition ‘extradition’, as opposed to mere executive surrender of custody), extradition involves judicial proceedings. Where extradition involves judicial proceedings, these proceedings are of a criminal character—that is, they are heard by a criminal court, often in the form of a magistrate, rather than by a civil or administrative court. In short, extradition proceedings, where they take place, are criminal proceedings.

The fact that extradition may not involve judicial proceedings in every legal system (although, again, I had always thought that judicial involvement was the touchstone of extradition) does not mean that international law should not take those extradition proceedings that do occur for what they are, namely judicial proceedings, specifically criminal proceedings. In other words, with respect to states where extradition proceedings do take place, it stands to reason that international law should regulate the availability of those same procedural immunities whose availability it regulates in the context of other criminal proceedings. Read the rest of this entry…

 

Enter at Your Own Risk

Published on August 16, 2012        Author: 

Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.

Ecuador has alleged that the UK has ‘threatened’ to rely on the Diplomatic and Consular Premises Act 1987 (‘DCPA’) to enter the Ecuadorian embassy to arrest Julian Assange, who has taken refuge there in order to avoid his extradition to Sweden (see, e.g. a Guardian report here). In a letter said by Ecuador to have been delivered through a British embassy official in Quito, the UK government is purported to have stated:

You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the embassy.

We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna convention and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.

We only have Ecuador’s word for it that the UK government has made this ‘threat’, and we should be cautious in accepting this without corroboration. But let us assume for the sake of argument that the allegation is true.

The DCPA—‘[a]n Act to make provision as to what land is diplomatic or consular premises’, in part of the words of the long title—regulates, among other things, the UK government’s acceptance of or consent to the designation of land in the UK as diplomatic or consular premises. The relevant provision in this case is presumably section 1(3) of the Act, which provides in relevant part:

[I]f—

(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or

(b) the Secretary of State withdraws his acceptance or consent in relation to land,

it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.

The main enactment alluded to in section 1(3) is the Diplomatic Privileges Act 1964 (‘DPA’), which enacts into UK law certain provisions of the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’), among them article 22(1), which codifies the rule that the premises of a diplomatic mission are inviolable. The inviolability of diplomatic premises means, among other things, that the authorities of the receiving state (here, the UK) may not enter the mission’s premises, except with the consent of the head of the mission. (This does not, contrary to popular misconception, make the embassy premises Ecuadorian territory. The premises remain UK territory, albeit UK territory that the UK authorities are not allowed by the DPA to enter without permission.) In short, the UK authorities may not enter the Ecuadorian embassy without the permission of the Ecuadorian ambassador—provided, that is, that the embassy premises remain diplomatic premises.

The suggestion would seem to be that the Ecuadorian embassy has ceased or will cease to be diplomatic premises within the meaning of section 1(3) DCPA and article 22(1) VCDR. There are two possible ways this could be argued to have happened or to happen.

Read the rest of this entry…

 

Once upon a time there was a gap … (repeat)

Published on January 6, 2012        Author: 

Editor’s Note: This is another repeat post of an old favourite. The piece was first posted in December 2010. Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.

Once upon a time/Es war einmal/Il y avait une fois/C’era una volta, way back at the end of the Cold War, the Comptroller-General for the Complete System was performing his quarterly ‘stress test’ on the normative integrity of the international legal system when he detected a gap.  At first he did not believe it.  He had been taught, and throughout his professional life had encountered nothing which caused him to doubt, that such a thing was impossible.  The combination of the Lotus principle and the residual negative always provided an answer in extremis.  But the gap he was dealing with here was not that sort of gap.  Nor was it, as most supposed gaps are, merely a question of international law the answer to which is not to the interlocutor’s liking.  Here was a real gap, and an existential gap at that.  The Comptroller-General for the Complete System was perplexed.  I need some help with this, he thought.

Within a week, news of the gap was the subject of fevered speculation across the globe in faculties of law, ministries of foreign affairs, intergovernmental and non-governmental organisations and the boardrooms of multinational corporations.  From the ends of the earth, international lawyers—academics and practitioners, positivists and naturalists, doctrinal exegetes and critical theorists—gathered to discuss the unnerving development.

The first to offer an opinion were the legal advisors to the US Department of State and the multinational corporations—respectively, one should add, although it was sometimes hard to tell the difference.  To them the source and nature of the gap was obvious: it was the hole left in the international legal order by the conceptual bankruptcy of statism, a space rich in possibilities which individual and market freedoms were expanding to fill.  Having no need to hear the opinions of others, and time being money, these legal advisors then went back, perhaps not quite respectively, to drafting bilateral investment treaties.  The parole passed from the legal advisers to the various European governments, who characterised the gap as the hole left in the international legal order by the welcome collapse of anti-liberal humanist tyranny, a space rich in possibilities for the construction of a new Europe.  A spontaneous chorus of Beethoven’s Ninth rang out from Lon- … well, Paris to Berlin.  (In Warsaw, Prague and Budapest they were too busy buying colour TVs, while in Sofia, Minsk and Kiev they were standing around waiting for Beethoven’s rehabilitation.) 

Next to speak were the theorists.  Some of these read the gap as the silhouette of the Other.  A few of the women present, whom everyone had ignored until now, discerned in the shape of the gap an unmistakable phallus.  Queer theorists cheekily took to calling the gap the ‘glory hole’.  For his part, a kindly English gentleman, who, people whispered scarcely credibly, had worked for many years for the Foreign Office, divined in the gap the first breach in Vattelian international law opened up by a new self-constituting society of all societies.  A bespectacled, boyish Finn thought the gap looked kitsch.

The international environmental lawyers showed a sense of humour by likening the gap to the plug-hole down which had disappeared the emerging right to life of whales.  As the decade wore on, waggish international legal observers of western foreign policy began to liken the gap instead to the plug-hole down which had disappeared the emerging right to democratic governance.  By the turn of the millennium, an Australian professor, one of several thousand present, was remarking jokingly upon the uncanny similarity between the hole and the receptacle into which the International Law Commission had deposited the concept of the criminal responsibility of states, pulling the chain afterwards.

But none of these accounts captured the true character of the gap, which, as the Comptroller-General for the Complete System had rightly apprehended, was more essential.  Consternation increased.  The kindly English gentleman tried to sooth raw nerves by reading to everyone from his latest novel, but this only deepened the air of anxious bewilderment.  Things began to get fractious.  The hole was getting a name for itself, but no-one could agree on what that name was.

The matter was eventually referred to the United Nations General Assembly, which invited the aforementioned ILC to begin work on the topic of ‘Gaps and Silences in the Law’.  Read the rest of this entry…

Filed under: EJIL Analysis
 
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Once upon a time there was a gap …

Published on December 8, 2010        Author: 

Dr Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge. The post below is a talk (referred to by Marko in his earlier post) given at the European Society of International Law Annual Meeting held in Cambridge in September 2010.

Once upon a time/Es war einmal/Il y avait une fois/C’era una volta, way back at the end of the Cold War, the Comptroller-General for the Complete System was performing his quarterly ‘stress test’ on the normative integrity of the international legal system when he detected a gap.  At first he did not believe it.  He had been taught, and throughout his professional life had encountered nothing which caused him to doubt, that such a thing was impossible.  The combination of the Lotus principle and the residual negative always provided an answer in extremis.  But the gap he was dealing with here was not that sort of gap.  Nor was it, as most supposed gaps are, merely a question of international law the answer to which is not to the interlocutor’s liking.  Here was a real gap, and an existential gap at that.  The Comptroller-General for the Complete System was perplexed.  I need some help with this, he thought.

Within a week, news of the gap was the subject of fevered speculation across the globe in faculties of law, ministries of foreign affairs, intergovernmental and non-governmental organisations and the boardrooms of multinational corporations.  From the ends of the earth, international lawyers—academics and practitioners, positivists and naturalists, doctrinal exegetes and critical theorists—gathered to discuss the unnerving development.

The first to offer an opinion were the legal advisors to the US Department of State and the multinational corporations—respectively, one should add, although it was sometimes hard to tell the difference.  To them the source and nature of the gap was obvious: it was the hole left in the international legal order by the conceptual bankruptcy of statism, a space rich in possibilities which individual and market freedoms were expanding to fill.  Having no need to hear the opinions of others, and time being money, these legal advisors then went back, perhaps not quite respectively, to drafting bilateral investment treaties.  The parole passed from the legal advisers to the various European governments, who characterised the gap as the hole left in the international legal order by the welcome collapse of anti-liberal humanist tyranny, a space rich in possibilities for the construction of a new Europe.  A spontaneous chorus of Beethoven’s Ninth rang out from Lon- … well, Paris to Berlin.  (In Warsaw, Prague and Budapest they were too busy buying colour TVs, while in Sofia, Minsk and Kiev they were standing around waiting for Beethoven’s rehabilitation.)

Next to speak were the theorists.  Some of these read the gap as the silhouette of the Other.  A few of the women present, whom everyone had ignored until now, discerned in the shape of the gap an unmistakable phallus.  Queer theorists cheekily took to calling the gap the ‘glory hole’.  For his part, a kindly English gentleman, who, people whispered scarcely credibly, had worked for many years for the Foreign Office, divined in the gap the first breach in Vattelian international law opened up by a new self-constituting society of all societies.  A bespectacled, boyish Finn thought the gap looked kitsch. Read the rest of this entry…

Filed under: EJIL, EJIL Analysis