Home Archive for category "EJIL Analysis" (Page 2)

Human Rights Treaties and Foreign Surveillance

Published on September 28, 2015        Author: 

A quick heads-up that the final version of my article on Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age, is now available on the website of the Harvard International Law Journal. The article grew from a series of posts I did here on this topic. The published version also contains a postscript addressing some of the recent developments after the piece was accepted for publication; see here generally for the blog’s coverage of surveillance issues.

In the meantime the UN Human Rights Council has appointed Prof. Joseph Cannataci of the University of Malta as the first special rapporteur on privacy. His candidacy enjoyed significant support from privacy organizations, while his election took no small amount of politicking, with the German president of the Council overruling a proposal made by a five-state consultative group, which favoured Estonian Prof. Katrin Nyman-Metcalf, who was perceived as not being sufficiently critical of mass surveillance practices. Prof. Cannataci, on the other hand, has already come out with harsh criticisms of digital surveillance programmes; he inter alia “described British surveillance oversight as being “a joke”, and said the situation is worse than anything George Orwell could have foreseen.”

Hyperbole aside, Prof. Cannataci has also called for the adoption of a “Geneva Convention” for the Internet “to safeguard data and combat the threat of massive clandestine digital surveillance.” And a couple of days ago Edward Snowden and a group of activists came out with one such proposal, labelled the “International Treaty on the Right to Privacy, Protection Against Improper Surveillance and Protection of Whistleblowers,” or the “Snowden Treaty” for short. Only a short and uninformative summary seems to be publicly available at this time.

I must say that I have grave misgivings about such proposals (with the caveat that the proposed draft has not yet been published). First of all, proposing such a new treaty implies that the existing legal framework is incapable of meaningfully regulating surveillance practices, despite the relevant privacy provisions in the ICCPR, the ECHR and the ACHR, and despite existing case law and materials (especially from the Strasbourg Court). In other words, proposing a binding gap-filling instrument assumes that a regulatory gap exists. Secondly, politically it seems exceptionally unlikely that any of the major players in the surveillance sphere (e.g. the US, UK, Russia, China), not to mention authoritarian regimes in many smaller states, would agree to any binding multilateral treaty in the foreseeable future, let alone to a comprehensive “Geneva Convention for the Internet.” Nor will the “Snowden Treaty” label make this proposed agreement any more politically palatable. So it’s just completely unclear to me what a feel-good, pie in the sky proposal such as this one is actually going to achieve, except needlessly waste precious political energy and undermine efforts to regulate surveillance and other intrusive cyber practices under the existing legal framework.

But let’s wait and see. In the meantime, Jessup competitors this year will have a nice, fat surveillance case to litigate before a fictional ICJ, and best of luck to them.

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New EJIL:Live Extra! Joseph Weiler and Martti Koskenniemi Discuss Blogging, Tweeting, and Peer Reviewing

Published on September 27, 2015        Author: 

The EJIL: Live Extras series comprises short video conversations with leading international law scholars. In our latest EJIL: Live Extra! our Editor-in-Chief Professor Joseph Weiler discusses with Professor Martti Koskenniemi of the University of Helsinki blogging and tweeting as a new and integral feature of academic life and the state of peer review in academic journals.


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Filed under: EJIL Analysis, EJIL: Live!

Managing Change in International Law and the Dream of the Managerialist International Lawyer

Published on September 25, 2015        Author: 

This post is a reaction to an ESIL Reflection written by Ramses Wessel and Monika Ambrus and entitled Between Pragmatism and Predictability: Temporariness in International Law. Their piece originates in an impressive symposium on the topic that has been published in the Netherlands Yearbook of International Law (see here)

1. Thinking of international law in managerialist terms

The 19th century idealist-intellectual international lawyer was murdered by his doctrinal-formalist counterpart who rose to prominence at the beginning of the 20th century. It did not come as a surprise that the doctrinal-formalist would also soon succumb, not only to his own weight and self-confidence, but also to the blows of the next hegemon, i.e. the managerialist international lawyer who thinks that international lawyers managing the world can no longer afford overly formal and sophisticated structures of argumentation. Interestingly, the murder of the doctrinal-formalist international lawyer by the managerialist international lawyer was condoned by his peers who had grown averse to the false necessities of doctrinal constructions and formal modes of legal reasoning. This is why the managerialist international lawyer was quickly welcomed and celebrated as the messianic saviour of a profession that had ceased to hope in its ability to make demands on the world.

The murder of the doctrinal-formalist international lawyer by the managerialist international lawyer is however not the end of the story of 20th century international legal thought. Indeed, the night after the opulent celebration of his conquest, the managerialist international lawyer had a dream. He dreamed that he would not only manage the world through international law but also the time of that world. In his dream, managing time also meant managing change. And managing change required self-reactive legal institutions and modes of reasoning to allow his managerial project to be carried out whatever happens outside his palace. Read the rest of this entry…

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Temporary Problems and Temporary Responses in International Law

Published on September 25, 2015        Author: 

This post is a reaction to an ESIL Reflection written by Ramses Wessel and Monika Ambrus and entitled Between Pragmatism and Predictability: Temporariness in International Law. Their piece originates in an impressive symposium on the topic that has been published in the Netherlands Yearbook of International Law (see here)

In a recent issue of the Netherlands Yearbook of International Law (vol. 45, 2014) titled ‘Between Pragmatism and Predictability: Temporariness in International law’, the volume editors Monika Ambrus and Ramses Wessel weave together the chapter contributions in building a systematised way of thinking about change or temporariness and international law. At a certain level, all issues and laws are temporary in the sense that they eventually undergo some change or disappear. What is referred to by temporariness here is changes of relatively short-duration or constant occurrence.

Ambrus and Wessel suggest that temporariness could be analysed with respect to two aspects of international law: its objects and subjects. By objects, they refer to the issues or problems that international law addresses, while subjects are the ‘institutions and other entities’ that shape international law, such as courts and tribunals. Drawing on illustrations from the chapter contributions on climate change, refugees, emergency situations, affirmative actions, commissions of inquiry and ad hoc international criminal tribunals, they point out that international law increasingly deals with temporary objects and subjects: issues or problems constantly change, and institutions could be designed for short life spans.

A pertinent starting point to engage this phenomenon is to ask, as they put it, how international law can ‘react to or be influenced by’ constant change or temporariness. In an era when global problems constantly evolve due to, among others, their ties with fast-paced technological development, temporariness is indeed a crucial and timely research agenda. In this piece, I would like to further highlight its importance by showing a particular dimension where temporariness is giving rise to a distinct trend in international governance. Before doing so, I’d like to comment on one aspect of Ambrus and Wessel’s conceptual approach to the topic that might pose an unnecessary constraint in taking this debate forward. Read the rest of this entry…

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Does “Russian international law” have an international academic future?

Published on September 21, 2015        Author: 

Since Russia’s annexation of Crimea in March 2014, we have had a chance to hear quite a few arguments advanced by Russian scholars at various legal conferences and law journals (see, for example, here and here) regarding the situation in Crimea, all purporting to justify the annexation of the peninsula by Russia. Most of these arguments have not been met with approval by international scholars.

With the Russian government’s current aggressive rollback to Soviet foreign policy, the post-Soviet doctrine of international law is back in the spotlight and requires, it appears, a fair amount of commentary.

A perfectly timed, thoughtful study by Lauri Malksoo, Russian Approaches to International Law, which was published this year, undoubtedly serves this purpose extremely well. A detailed overview of Russian lawyers’ positions on Crimea was also given by Anton Moiseienko about a year ago.

In this post I would like to add some reflections on the situation as seen from within Russia, albeit not from inside Russian academic circles. Read the rest of this entry…

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Human Rights and the Targeting by Drone

Published on September 18, 2015        Author: 

The UK government has justified its targeting and killing of three people who were engaged in hostilities as part of the ‘Islamic State’ forces by relying on international law. This is to be applauded, as compliance with international law is in the interest of long-term peace and security in the UK and in the international community, and on the rule of law. It does not necessarily mean that their justification of self-defence, or even collective self-defence, is accurate or sustainable once the full facts are known.

However, even if the UK argument of reliance on self-defence is in accordance with a part of international law, that is not sufficient to conclude that the targeted killing is in compliance with all of international law. It only means that the armed force by the drone could be used lawfully by the UK in Syrian territory. There are at least two other areas of international law that are also relevant and should be complied with: international humanitarian law (IHL); and international human rights law (IHRL). The former concerns the lawfulness of force within the armed conflict once it commences, and the latter applies at all times. I will focus here on the application of IHRL, including its interaction with IHL.

IHRL does not allow the targeting of individuals to kill them except in strictly limited circumstances. This was confirmed by the UN Special Rapporteur on Arbitrary Killings in his 2013 report Read the rest of this entry…

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On Preventive Killing

Published on September 17, 2015        Author: 

If we wait for threats to fully materialize, we will have waited too long. We must take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path to action. And this nation will act.

George W. Bush, 17 September 2002.

It seems to me that there are two different ways of understanding the targeted killing of UK citizens Reyaad Khan and Ruhul Amin by a Royal Airforce-piloted drone on 21 August 2015, in Raqqa, Syria. (Khan was the target of the strike, and Amin was also killed by it. Both Khan and Amin are described as “ISIL fighters.”)

The first poses some difficult constitutional and public law questions for the UK government, but does not require any kind of radical re-interpretation of international law governing the use of force.

The second way of understanding the strike amounts to a sea change in the UK’s legal position, and indeed aligns it with several US legal positions in the “war on terror” which, hitherto, no European state has formally embraced.

Read the rest of this entry…

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The Greek Sovereign Debt Crisis, the Right to be Free from Economic Coercion, and the Greek Election

Published on September 16, 2015        Author: 

People gathered at the ‘NO’ rally ahead of the Greek Referendum in early July.

The Greek sovereign debt crisis has occasioned much discussion on a number of issues that are of interest to international lawyers, in particular after the 25th of January 2015, when the left-wing SYRIZA party (Greek acronym of the full name, literally the ‘Coalition of the Radical Left’), having won the election by some considerable margin, formed a government whose strategy was to challenge Greece’s creditors over the much despised (in Greece, that is) Greek bailout programme. These issues include: the question of the odiousness of Greek debt (and whether it can be repudiated; interestingly the UN GA passed a Resolution on 11 September 2015 regarding the ‘basic principles on sovereign debt restructuring processes’, during the vote for which the caretaker government of Greece opted to abstain), the issue of German reparations and of the compulsory war loan of 1942, as well as the issue of economic coercion into a new bailout agreement (commented on here) which Greece accepted in July and August 2015 (and which led to the splintering of the governing party and to fresh elections scheduled for September).

In this post, just ahead of the snap election that has been called for 20 September 2015, I will briefly discuss the bailout programme between 2010 and 2014 and explain the arguments on the basis of which it was challenged by the SYRIZA-led government (section I). Then I will describe the negotiation which led to the new agreement, which has been seen (in many circles at least) as an attempt at regime change in Greece (section II). Finally, I will argue that this episode does not constitute unlawful economic coercion, as there is no right of a State to be free from economic coercion in international law (section III). That subject I treat in much more detail in a paper written for the project led by Dan Joyner and Marco Roscini on the ‘Fundamental Rights of States’. The paper is now available on SSRN and will appear, along with other relevant papers, in a special issue of the Cambridge Journal of International and Comparative Law.  Read the rest of this entry…

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Joint Blog Series: Application of International Humanitarian Law by Domestic Courts

Published on September 15, 2015        Author: 

Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the 3rd Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

It is well known that in an order such as international law where there is no universal, compulsory judicial system, domestic courts play an important role not only in enforcement, but also in interpretation and development of particular international legal rules. This is especially the case in international humanitarian law (IHL), an area that constantly faces existential critique for its lack of effective enforcement mechanisms. Moreover, it was only in the 1990s with the emergence of modern international criminal justice that many of the specific rules of IHL came to be interpreted and developed since their codification several decades before. Against this background, domestic courts are increasingly called on to apply and interpret IHL.

The purpose of this post is to offer a brief overview of the circumstances that might lead a domestic court to examine IHL, the extent to which such jurisprudence can be considered as contributing to the development of IHL, and some of the problems that arise here.

How does IHL come to arise before domestic courts?

There are a number of situations that might call for a domestic court to draw on IHL during the proceedings. In such cases, the court will either apply IHL directly (e.g. where a domestic law or government policy is being judicially reviewed for compliance with the international obligations of the State) or indirectly (e.g. where a domestic law or other international obligation of the State is being applied in a situation that requires a renvoi to IHL for content-determination, such as when interpreting a human right in the context of an armed conflict). Read the rest of this entry…

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Moving Beyond the Asylum Muddle

Published on September 14, 2015        Author: 

The horrific images of refugees dying on European shores seem – finally – to have galvanized public opinion in favor of a shift to protection rather than deterrence. Some leaders seem still to be committed to harsh action – Hungarian Prime Minister Orban’s comment that the arrival of refugees threatened “Europe’s Christian roots” and the decision of Czech officers to use indelible ink to write numbers on the hands of refugees, reminiscent of the Nazi tattooing of Jews and other minorities, being especially odious examples.

But the proverbial tide does seem to have turned. Pro-refugee marches in Vienna, Icelanders demanding that their government let them open their homes to refugees, and English and German football fans displaying banners welcoming refugees to join them at matches seem to have paved the way for the momentous announcement by Austria and Germany that those countries would open their doors to refugees trapped in Hungary. German Chancellor Merkel has emerged as the voice of reason, rightly insisting that the protection of refugees “is morally and legally required” of all state parties to the Refugee Convention.

What now?

First, it is important not to simply go back to “business as usual” when the immediate humanitarian emergency ebbs. The current pressures will abate as some states – inside and beyond Europe, as recent French and Argentinian responses attest – will inevitably follow the Austrian and German lead and open their doors to at least some refugees. The impending arrival of winter weather will moreover stymie the ability of many refugees – in particular, the most vulnerable – to travel to safety. While relative calm has historically inclined governments to return to their protectionist ways, the failure to seize this moment to minimize the risk of future protection tragedies would represent a serious ethical lapse.

Read the rest of this entry…

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