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Home Archive for category "EJIL Analysis"

Two Wrongs Don’t Make a Right: Ukraine Retaliates for Savchenko in Violation of IHL

Published on September 1, 2015        Author: 

In our post concerning Ukrainian military pilot Nadiya Savchenko, which can be found here, Anne Quintin and I addressed the International Humanitarian Law (IHL) implications of Russia’s detention and prosecution of the officer, whose ongoing murder trial is postponed pending the outcome of a change of venue motion by the defence. Meanwhile, Ukraine has thrown a judicial rock of its own by detaining two Russian officers – Evgeny Erofeev and Aleksandr Aleksandrov – who face charges of terrorism and aggression in Kiev in the coming weeks. In this post, I would like to identify the contradictions of Ukraine’s positions with respect to the two situations, as well as its concomitant IHL violations, and to address the possibility of reconciling Ukraine’s rhetoric and practice with the rules of IHL.

On or about May 16 2015, two wounded fighters who identified themselves as officers of the Russian army were captured by Ukraine’s Armed Forces (UAF) following a firefight near Lugansk that resulted in the death of one Ukrainian soldier. The detainees were immediately treated and subsequently evacuated to Kiev, where they remain hospitalized to this day. Several days after their capture, both were indicted under Article 258 of the Ukrainian Penal Code (UPC) for their participation in the commission of a terrorist act, organized and carried out by the Lugansk People’s Republic (LPR), resulting in death. Notably, there appears to be no evidence, or allegations, that the Ukrainian soldier was killed in violation of IHL. Most recently, a charge of aggression under Article 437 of the UPC was added to the terrorism charge.

On May 21, the Security Services of Ukraine confirmed that Erofeev was captain, and Aleksandrov sergeant, of the 3rd Brigade of the Special Forces of the Military Intelligence Directorate of the Main Staff of the Armed Forces of the Russian Federation (Russian abbreviation ‘GRU’), with its base in Tolyatti, Russia. Numerous video and newspaper interviews given by the officers revealed that: they were so-called ‘contracted’ (kontraktniki) Special Forces of the GRU deployed to Ukraine on 6 March 2015 in the battalion numbering 220 soldiers; they were dispatched on orders from their superiors who promised double their usual pay; that on the day of their capture their unit, comprised entirely of Russian troops, was stationed near Lugansk and was spotted by the UAF during a reconnaissance mission, prompting a gunfire exchange. Against this evidence, Russia has not relented in its denials of the involvement of Russia’s armed forces in the fighting in Donbass. In fact, on July 21, the Ministry of Defense of Russia declared that even though the two officers underwent military service in Russia, the events in Ukraine linked to them ‘took place after their discharge from military service and were not connected to it.’ On some accounts, the relatives of the accused have confirmed that the soldiers were indeed discharged. Consistent with this storyline, the LPR has maintained that Erofeev and Alexandrov are members of its own police force with no affiliation to the Russian armed forces. Read the rest of this entry…

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A Question on Spying and Legal Ethics

Published on September 1, 2015        Author: 

In the wake of the scandal regarding the Croatia/Slovenia arbitration, but also the spats between Australia and East Timor, I have been left wondering with an ethical question: say you are counsel for one of the parties in a case before the ICJ or in an arbitration (but you are not the relevant government’s employee). Imagine if your client comes to you with a document that they could only have obtained by spying on the other party in the proceedings – say a draft of the opposing counsel’s pleadings, or a particularly important piece of undisclosed evidence in the case. Would it be ethical for you to rely on such a document? Would you, say, read your opponent’s draft pleadings? Would it make any difference whether the spying is done against the adversary state or against your opposing counsel directly?

NB: I’m not interested in how the court or tribunal would decide on any issue of admissibility; all I care about is the ethical dimension. For the avoidance of doubt, this is not a dilemma I’m currently facing or ever had to face. But my impression is that this sort of stuff must happen occasionally. Having been involved in some interstate cases, I know that some parties take reasonable security measures (e.g. send drafts or documents only in an encrypted format), while others take virtually none. In this post-Snowden era, such spying would seem trivially easy for many intelligence agencies, especially if no dedicated security measures are in place – the Slovenian arbitrator and agent providing an abject lesson.

Comments from readers much appreciated; anonymous comments with regard to this particular post are welcome.

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Data Protection in International Organizations and the New UNHCR Data Protection Policy: Light at the End of the Tunnel?

Published on August 31, 2015        Author: 

In May 2015 the United Nations High Commissioner for Refugees (UNHCR) published its Policy on the Protection of Personal Data of Persons of Concern to UNHCR (Data Protection Policy). The Policy may seem to be merely an internal guidance document addressed to the staff members of an international organization. However, as a subsidiary organ of the United Nations, established by the General Assembly pursuant to Article 22 of the UN Charter, working for millions of refugees and with thousands of other organizations active in the field of protection and assistance, UNHCR bears a certain responsibility when it sets internal standards which inevitably also have an external impact. Moreover, the Policy highlights the growing importance of data protection in international law, particularly for the work of international organizations.

Against this background, our blog addresses some interesting underlying legal issues of public international law raised by the Policy. In particular, it discusses the relevance of data protection to the work of international organizations, including UN agencies, and what level of data protection is appropriate and required for international organizations in general and UNHCR in particular, taking into account the humanitarian context in which the organization often operates. Read the rest of this entry…

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The Human Rights Committee and its Role in Interpreting the International Covenant on Civil and Political Rights vis-à-vis States Parties

Published on August 28, 2015        Author: 

The role of the UN Human Rights Committee (HRC) in the interpretation of the provisions of the International Covenant on Civil and Political Rights (the Covenant) has recently been questioned in a post by Dr. Harrington.

Dr. Harrington recognises that the HRC has an important role in the interpretation of the Covenant, however the last word on interpretation would go to States parties. The HRC should “monitor, question and guide”, but it would be States who decide whether the observations and recommendations issued by the HRC are to be supported and implemented. This would allegedly depend on “the specificity and the context” of the recommendations and “the expertise and stature of the Committee members”. This view of the role of the HRC is not unanimously shared, as is clear from some of the comments on the post that refer to authoritative sources that qualify the HRC as the “pre-eminent interpreter of the Covenant”.

It is here argued that the main question is who can say the best, rather than the last, word on the interpretation of the Covenant. In this regard, the HRC has an interpretative authority that prevails over that of States parties, especially when it comes to examining periodic reports and formulating concluding observations. In fact, the HRC, far more than the individual States parties, has the experience in applying the Covenant that is relevant for its interpretation. Read the rest of this entry…

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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 3)

Published on August 25, 2015        Author: 

In our last post, we analysed Croatia’s denunciation of its arbitration with Slovenia emerging from the scandal of secret communications between the arbitrator of Slovenian nationality and the Slovenian agent. In this final post, we examine the ramifications of the scandal for the international judicial system: that is, the informal set of international courts and tribunals in which at least one of the parties is a State. We suggest that the scandal is not an isolated case but rather symptomatic of systemic problems. This, we argue, supports the case for the investment of energy by the college of international lawyers to investigate the case for procedural reform in international courts and tribunals.

If we may be permitted to indulge in a spot of shameless advertisement, we are co-editors (along with Dr Filippo Fontanelli (University of Edinburgh), and Dr Vassilis Tzevelekos (University of Hull)) of an edited volume entitled Procedural Fairness in International Courts and Tribunals due to be published in September by the British Institute of International and Comparative Law. As this story broke – just as we were putting the finishing touches to the concluding chapter to the volume (thus seeking to justify, if only to ourselves, the effort) – it occurred to us that we could not have concocted a more apt scenario encapsulating the subject if we had tried.

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Alison Duxbury and Ian Johnstone: A Rejoinder

Published on August 21, 2015        Author: 

Delighted as I am to have received the insightful comments of Alison Duxbury and Ian Johnstone, I cannot write a very lengthy rejoinder, for the good reason that on most general matters, the three of us seem to be in broad agreement. In particular Johnstone and I are pretty much on the same page, it seems, our only quibble (if that is what it is) being about whether I go far enough in discussing the weaknesses of functionalism as principal-agent theory. Johnstone contends that I do not, and even with this I agree: functionalism is not even very good at discussing the relationship between international organizations and their member states, by and large because it refuses to acknowledge the political nature of this relationship. Functionalism aims to take the politics out of politics, and as usual, this affects its explanatory force. If the article focuses on other aspects of functionalism, it is because elsewhere I have made critical comments about such staples as the implied powers doctrine, the ultra vires doctrine, or the bias of functional necessity in the law on privileges and immunities, for instance in An Introduction to International Organizations Law (3rd ed, 2015). Beyond this, both Johnstone and I signal a move to discursive accountability (the adjective is his; I wish I had thought of it) driven largely by reputational concerns, and his rendition hereof as a ‘looser form of functionalism’ may actually give functionalism more credit than I would give it – I am not so sure that the result can still qualify as a form of functionalism.

Duxbury and I are also broadly on the same page, but she does pose some explicit questions. First (her last question) is whether functionalism has actually transformed, and here the answer must be in the negative: the process of transformation is still ongoing, and will no doubt go on for a few more decades. It is a glacial process, not an overnight transition, partly because too many have vested interests in not discarding functionalism altogether, and that includes international organizations and their staff: they benefit tremendously from the bias inherent in the law. It also includes the member states of organizations generally, who can write off governmental responsibilities and use organizations for scapegoating purposes, tut-tutting every now and then about ‘mission creep’ but secretly happy to use organizations as instruments of what Foucault would call governmentality: for most member states, having entities such as the World Bank or the International Organization for Migration function without too much oversight is much preferable to strict governmental control. It also covers pretty much all academics working on international organizations law (myself included), partly because of the way those academics are trained, and partly because functionalism generates the promise of a better world – and that is a promise that is hard to ignore.

To the extent that the above also answers Duxbury’s second question (why did functionalism become dominant?), the most difficult to answer is her first question: why trace the origins of functionalism back to two fairly obscure US-based authors from the early 20th century, rather than to later European writers such as, say, Schermers, or Bowett? And can I be certain that Reinsch and Sayre did influence their successors in quite the same measure that I think they did? Read the rest of this entry…

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Are Functionalism’s Flaws Fatal?

Published on August 20, 2015        Author: 

Jan Klabbers’ two decades of “obsession” with functionalism as a theory of international organizations law (IOL) pays off in this article. It is a highly perceptive analysis of the evolution of functionalism, arguing that it made sense when created more than a century ago, but its explanatory and prescriptive power began to erode almost immediately as the nature and impact of international organizations (IOs) changed. He argues that functionalism helps to understand the relationship between IOs and member states, but not relations within an organization or between the organization and third parties. More radically, Klabbers challenges the functionalist assumption that all activities of IOs are beneficial or benign. Not only is this factually wrong, but it also serves to obfuscate the impact of IOs by presenting them as “neutral” “apolitical” and “purely technical” creatures (p. 18). This makes it difficult to hold them accountable for they wrongs they commit, like the cholera outbreak in Haiti, let alone for perpetuation and propping up “an unfair global structure” (blog).

Like much of his work, Klabbers turns a critical eye on the “problem-solving” approach to the study of international law and organizations, without losing sight of real world challenges the law and IOs struggle with and the pragmatic solutions they are struggling to find. His analysis of functionalism is an exercise in “reconstruction” (p. 22). In the hands of a lesser scholar, this can be a risky strategy because it can tempt one to (re)construct a straw man for the purpose of debunking it. Klabbers avoids that trap by a careful reading of seminal texts and a persuasive interpretation of how functionalist theory has informed the actual practice of IOL in the past and today.

In this comment, I will: a) extend Klabbers’ critique in one area (the weaknesses of principal-agent theory); b) elaborate on it in another (IO accountability and responsibility); and c) based on the above, conclude with some thoughts about the question he asks at the end: must functionalism be discarded or can it adapt?

I agree that principal-agent (PA) theory only takes us so far in trying to understand IOL. As Klabbers points out, it does not capture inter-organizational dynamics well, nor does it have much to say about an organization’s relationships with outsiders, like non-members (consider the AU’s relations with western powers), non-state actors (such as relations between UN peacekeepers and rebel forces), or individuals. Even more damning – and this is where Klabbers critique does not go far enough – PA theory does not adequately explain or prescribe for what it purports to cover: namely the organization’s relationship with its members. Read the rest of this entry…

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Is International Institutional Law Transforming?

Published on August 19, 2015        Author: 

José Alvarez has written that ‘the majority of international lawyers and fellow travelers in international relations rarely see an IO, proposed or existing, that they do not like.’ (2006) 100 AJIL 324, 339-40. International lawyers like international organisations because they promise (or at the very least, propose) international solutions to global problems, whether those problems concern international peace and security or preventing the spread of disease (and these may sometimes be viewed as one and the same – think of the Security Council’s response to the Ebola crisis). International institutional law is designed to enable us to see the similarities in the structure and functioning of different international organisations – whatever their role and wherever they are geographically located.  The idea that all organisations fulfil a specific function or functions as set out in the constituent instrument, and that these functions determine the limits of the actions that an organisation can (or should) take, is well accepted.  However, in ‘The Transformation of International Organizations Law’ Jan Klabbers develops a point he has made previously:  that functionalism as a theory to explain how international organisations should behave has a ‘blindspot’ – this blindspot is its bias in favour of the organisation which means that it can be used to justify any of the organisation’s activities (p 10).  The question remains whether this blindspot is inherent in functionalism or rather a product of our innate desire to see international organisations as a solution rather than a problem.

In this article Klabbers tells us a story – a story not so much about the transformation of international institutional law, but about the origins and rise of functionalism and ultimately its inability to account for the relationship between an international organisation and third parties.  It is one of two articles written by Klabbers and published in EJIL in the last year examining the origins of functionalism as the dominant theory in international institutional law.  In his 2014 article Klabbers attributes ‘colonial inspirations’ to the beginnings of functionalism by concentrating principally on the work of Paul Reinsch.  In this second article, Klabbers revisits Reinsch’s work, but also examines the writings of another American scholar/practitioner, Francis Bowes Sayre, whose major work in the field, Experiments in International Administration, was published in 1919.

Leaving aside some of the very interesting steps in Klabbers’ reasoning, not least the examination of the WHO and Egypt Advisory Opinion, the essential pillars of this article are threefold.  First, that functionalism as a theory in international institutional law (as distinct from a political theory) can be traced to the work of scholars such as Reinsch and Sayre who wrote at a time when the major international unions were technical or specialised organisations, established to perform a specific function.  Secondly, that functionalism remained the dominant theory despite the fact that international organisations were no longer being ‘built around a function in any meaningful way’ (p 31).  Finally, functionalism as a legal theory revolves around a principal-agent relationship and while this is useful in explaining aspects of the relationship between an organisation and its member states (for example, membership and powers), it fails to deal with the effects of international organisations on third parties, starkly illustrated by the cholera outbreak in Haiti. Read the rest of this entry…

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The Transformation of International Organizations Law

Published on August 18, 2015        Author: 

The law of international organizations, governing such topics as their powers, their membership rules, and their privileges and immunities, is dominated by a single theoretical perspective: the theory of functionalism. Yet for all its importance, functionalism as a theory has always remained under-explored and, so to speak, under-theorized. Relatively little is known about how functionalism is structured and how, in turn, it structures the law; relatively little is known about how it came about or how it developed over the years, and little attention has been paid to its strengths and weaknesses, both as normative theory and as explanatory theory.

My article, the first EJIL Foreword, aims to take stock of functionalism by delving precisely into the above-mentioned questions, and in doing so reflects the culmination of almost two decades of study and perhaps, some might say, obsession. The article’s three main parts discuss the nature of functionalism, its genesis, and its relative fall from grace, and while there is no main conclusion to be drawn (in that the piece describes and analyzes an ongoing process of transformation), some of its main points can be summarized as follows.

First, I contend that functionalism is a special kind of principal-agent theory, special in the sense that the principal is by definition collective, and special in the sense that the principal is invariably part of the agent: all organizations have a plenary organ in which the member states (the principal) are represented. One important ramification hereof is that functionalism is ill-equipped to address issues that do not emerge from the relationship between principal and agent or, or more colloquial terms, between organization and members. I identify two broad groups of relationships that fall outside functionalism’s purview: functionalism has little to say about the internal dynamics within an organization (e.g. relations between various organs, or between organization and staff), and functionalism has little to say about the relations of organizations with the outside world. And the latter in particular is of interest to the general international lawyer: it suggests that the responsibility of international organizations under international law cannot fruitfully be approached from a functionalist perspective, and further suggests that our available frameworks of thinking about organizations are inadequate to address such questions as whether organizations are bound by general international law. Functionalism, as devised and developed, never thought about such issues and, more importantly, never could have done so coherently at any rate: a theory focusing on the principal-agent relationships cannot accommodate other concerns, at least not without diluting its original focus. To put it strongly and in different terms, functionalism has a blind spot: the issue of control. Actors other than the member states have no means of controlling organizations. Read the rest of this entry…

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