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

The EJIL App (again)

Published on November 5, 2015        Author: 

I want to remind all our individual subscribers – for example all members of ESIL – of the possibility of installing the EJIL App and downloading EJIL to your tablet (both Apple and Android devices).

In a random survey we discovered that a large number of our subscribers, even those receiving the hard copy of EJIL, mostly access the Journal in its digital version online. The App offers two major advantages. The whole issue downloads to your tablet and you can then access it whether online or not. (Maybe I spend too many hours on airplanes and overrate this advantage.) The other advantage is that one clearly gets a much better sense of the issue as a whole, with the ability to browse through and skim even those articles you are not going to read in depth. An issue of EJIL is not a collection of articles simply waiting their time in the queue to get published. We curate each issue with care, like the construction of a satisfying meal with different courses. One also gets a better sense of our huge investment in the aesthetics and form of the Journal.

It is worth a try. Here, again, are the technical details:

  1. Make sure you have your OUP customer ID number. Contact our Managing Editor if you do not have one.
  2. Register at You will be asked to enter your customer ID number, register your email address and create a password.
  3. The site will authenticate you as a user. You can then download the app from the appropriate App Store and enter your registered email address and password at the login page.

If you experience any problems do not hesitate to email our Managing Editor, Anny Bremner, at ejil {at} eui(.)eu.

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Filed under: EJIL Analysis

Embedding Human Rights in Internet Governance

In Resolution 56/183 (2001), the UN General Assembly welcomed the creation of an inter-governmental World Summit on the Information Society (‘WSIS’) to address the digital revolution and the increasing digital divide between the global North and South. During the Summit’s two phases (Geneva, 2003 and Tunis, 2005) a common desire and commitment to build a people-centred, inclusive and development-orientated Information Societyemerged. A key objective was therefore to harness the power of information and communications technology (ICT) to secure the realisation of the Millennium Development Goals (MDGs).

A decade on, and against the backdrop of the recent transition from the MDGs to the Sustainable Development Goals (SDGs), a review of the implementation of the WSIS outcomes is underway. Delegations met last week for the Second Preparatory Meeting of the UN General Assembly’s Overall Review of the Implementation of the Outcomes of the WSIS (‘WSIS+10 Review’). The aim of this meeting was to engage member States and other stakeholders to reach a consensus on critical issues, such as the goals of Internet governance, the relationship between WSIS and development and how to address human rights related to ICT. Oral statements and written submissions served as the basis for developing the current Zero Draft into a Second Draft. The WSIS+10 Review will culminate in a High-Level Meeting on 15-16 December, at which an Outcome Document will be adopted.

Treatment of human rights in the Zero Draft is inadequate. A sub-section on human rights is included within Internet governance and there are other brief references scattered throughout the Draft. However, human rights are not presented as a foundational principle of Internet governance, but are rather narrowly confined to issues of freedom of expression and the right to privacy. In this post and in our response to the Zero Draft as part of an ESRC Funded Large Grant on Human Rights and Information Technology in an Era of Big Data, we argue ]for a more systematic approach to human rights in this process, in order to reflect the full scope of the human rights issues raised by the use of ICT and big data.

Opportunities and Challenges Presented by the Use of ICT and Big Data

Technology has the potential to produce an impact on all aspects of society. The use of ICT is becoming essential to the conduct of government operations, to business, and to individuals’ day-to-day lives. ICT and human rights have become inextricably intertwined, and this is set to continue in line with progress towards the Information Society. This interconnectivity means that ICT has concrete human rights implications, which can be both positive and negative. Significantly, however, the full extent of ICT’s human rights implications are not yet known.

The transformative potential of ICT and big data for the protection and promotion of human rights is becoming increasingly apparent. For example, digital platforms have facilitated local and global dialogue between human rights defenders, minorities and other democratic voices, giving rise to the phrase ‘liberation technology’. Analytics and the use of big data can assist in the identification of otherwise invisible forms of vulnerability and discrimination. This information can be utilised to target interventions and to facilitate efficient resource allocation and can therefore be employed to facilitate the achievement of the SDGs. For example, in relation to ‘good health and well-being’ (Goal 3), the adoption of e-health and m-health (where health services are delivered electronically or via mobile devices) can lead to cost-effective access to health care. Equally, the analysis of data drawn from a significant number of electronic health records (big data-based analytics) can be used to identify appropriate treatments and facilitate early intervention, reducing future health care costs. Technological assistance in the identification of vulnerability and discrimination also facilitates ‘reduced inequalities’ (Goal 10), and can assist in tackling the ‘digital divide’.

However, the inappropriate use of ICT and big data has the potential to interfere with the enjoyment of human rights and thereby undermine the opportunities for realising human rights and attaining the SDGs. Read the rest of this entry…

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Up the Creek without the Law: What is at Stake in Refugee Responsibility Sharing?

Published on November 2, 2015        Author: 

Refugee law has an infamous built-in dichotomy. Its powerful non-refoulement principle means refugees shall not be returned to their home countries or to places where they would be at risk of being returned home. Yet, refugee law does not oblige securing safe direct access from a refugee’s country of origin or transit to a state of asylum. The fragmented response to the large-scale displacement from Syria violently demonstrates that dissonance. Like in any refugee crisis, neighboring regions host the bulk of IDPs and refugees from Syria, which has painful consequences for the quality of protection offered.

How multilateral efforts – beyond the EU’s response to the current crisis – will fill the relative normative vacuum on access to asylum is possibly the single most important issue for the future of refugee protection. In this post, I want to share some thoughts on some of the parameters that are at stake or will determine the feasibility of a multilateral responsibility sharing response.

First, refugees are not passive players in the systemic conditions and the personal circumstances they face, but have – if limited, given the lack of migration channels – leeway to make choices. If they can, they will move to places where they find effective protection, including social and economic integration. Ignoring agency will make any responsibility sharing mechanism unpopular to those whom it is meant to benefit.

Second, while refugee law does not include strong norms on responsibility, policy initiatives to foster responsibility should not trade away compliance with refugee law. The refugee law regime – based on the 1951 Convention relating to the Status of Refugees – has proved remarkably stable over the past sixty years, not least because it subtly balances human rights obligations and other state interest. It has also seen considerable evolution by human rights law as interpretative guidance, and has been complemented by non-return obligations under human rights law. Read the rest of this entry…

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Filed under: EJIL Analysis, Refugee Law

Somalia Ratifies Convention on the Rights of the Child

Published on November 2, 2015        Author: 

A standard trope when teaching multilateral human rights treaties has been to point to the Convention on the Rights of the Child as having achieved near-universal ratification, with only the United States and Somalia not having ratified it (at least among those entities generally recognized to be states under international law). Well, that trope now has to come to an end – on 1 October Somalia officially deposited its instrument of ratification with the UN Secretary-General, having completed domestic ratification processes earlier in the year. That leaves the US as the only state in the world not to have joined this treaty, a somewhat more unenviable position than before, one could say.

Unfortunately, upon ratification Somalia also made the following reservation: “The Federal Republic of Somalia does not consider itself bound by Articles 14, 20, 21 of the above stated Convention and any other provisions of the Convention contrary to the General Principles of Islamic Sharia.” The three enumerated articles deal with the freedom of thought, conscience and religion, and the protection of children deprived of their family environment, but the reservation extends to the Convention as a whole. Human rights bodies generally regard Sharia reservations to be incompatible with the object and purpose of human rights treaties (as do a number of other states parties), while in its work on reservations to treaties the International Law Commission objected to such reservations on the grounds of their impermissible generality and vagueness (see guideline and commentary; see more the EJIL symposium on the ILC’s guide to practice on reservations).

In any event, the CRC is now just one step removed from becoming the only treaty to achieve universal ratification in modern times, other than the 1949 Geneva Conventions – but bearing in mind the internal politics in the US Senate and the 2/3 majority required there, that last ratification probably won’t come anytime soon.

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Fighting Transnational Crimes at Sea under UNSC’s Mandate: Piracy, Human Trafficking and Migrant Smuggling

Published on October 30, 2015        Author: 

On 9 October 2015 the UNSC adopted S/RES/2240 (2015) authorizing states to exercise exceptional powers with respect to ships suspected of being engaged in human trafficking and migrant smuggling on the high seas off the costs of Libya. In the context of counter piracy in Somalia, the UNSC had already adopted a series of resolutions since 2008 allowing for exceptional actions to suppress transnational criminality at sea (see S/RES/1816 (2008), as most recently renewed by S/RES/2184 (2014) until 12 November 2015).

The fight against piracy seems to have a lot in common with the fight against human trafficking and migrant smuggling, and both show a dangerous trend towards the repression of transnational criminality through the recourse to military force. Indeed, UNSC resolutions have in both cases constituted the basis for naval military operations (current counter piracy operations are EUNAVFOR Operation Atalanta and NATO Operation Ocean Shield, whereas the EU naval operation against migrant smuggling is EUNAVFOR Med, recently renamed Operation Sophia)

Insofar as they provoke similar thoughts and concerns, a comparison between these landmark resolutions is therefore worthwhile.

The first issue of note concerns the identification of the situation triggering the UNSC’s powers under Chapter VII of the UN Charter. In the resolutions dealing with piracy off the coast of Somalia, piracy was not deemed to constitute a threat to international peace and security in itself (although it could have been). Rather, piracy was characterized as a factor exacerbating the situation in Somalia, which constituted a threat to international peace and security in the region. However, in resolution 2240 (2015) no mention is made of the situation in Libya as amounting to a threat to international peace and security. Such a qualification was indeed deleted from a previous draft (see What’s In Blue). Instead, it is the ‘recent proliferation of, and endangerment of lives by’ human trafficking and migrant smuggling in the Mediterranean Sea off the coast of Libya’ that is regarded as the situation that needed to be addressed through the UNSC’s action under Chapter VII. The resolution confines itself to expressing concern that the situation in Libya is being exacerbated by these crimes. It is therefore the repression of a crime itself, and its impact on human lives, which is used to ground the UNSC’s powers. Read the rest of this entry…

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Filed under: EJIL Analysis

A Bacon Dispute at the WTO? International Trade Regulation and the WHO Decision on Red Meat and Processed Meat

Published on October 28, 2015        Author: 

To the chagrin of meat-eaters worldwide, the International Agency for Research of Cancer (IARC) – the cancer agency of the World Health Organization – has just published a summary of over 800 studies, some of which decades-long, on the link between consumption of red meat and processed meat and cancer. The summary concludes that consumption of red meat is probably linked to cancer, and that consumption of processed meat is demonstrably linked to bowel cancer. Specifically, every 50 gram portion of processed meat consumed daily increases the risk of bowel cancer by a significant 18%. An average sausage weighs about 70-80 grams.

On the basis of this research, IARC experts decided to add red meat and processed meat to the list of potential cancer-inducing agents. Red meat, i.e. ‘all mammalian muscle meat, including, beef, veal, pork, lamb, mutton, horse, and goat’, was classified under Group 2A, as ‘probably carcinogenic to humans’. More worryingly, processed meat, including all red meat ‘that has been transformed through salting, curing, fermentation, smoking, or other processes to enhance flavour or improve preservation’, was classified as ‘carcinogenic to humans’ (Group 1).

With this decision, processed meat now ranks together cancer-wise not only with the usual suspects against which healthcare professionals advise us – alcoholic beverages, tobacco smoking, and solar radiation – but also with less pleasant substances such as mustard gas, arsenic, and plutonium. To leave no room for doubt, the Q&A clarifies that among the new known carcinogens are ‘hot dogs (frankfurters), ham, sausages, corned beef, and biltong or beef jerky as well as canned meat and meat-based preparations and sauces’. (Surprisingly, bacon was left out of this particular clarification.)

Few people, of course, were under the illusion that these products were good for your health. However, their classification as known carcinogens has significant public health implications, which may lead governments worldwide to consider adopting measures to prevent consumption, or at least excessive consumption, of processed red meat. As with regulatory measures aimed at lowering consumption of tobacco and alcohol, we can expect the new anti-bacon measures to become the subject of international litigation under trade and investment dispute settlement.

The question of how to give weight to health and other public interest concerns under investment law is still a tricky one. Under the law of the World Trade Organization (WTO), on the other hand, I believe the issue is essentially settled: once a decision of an internationally recognized scientific body such as the IARC exists to ground policies, WTO law will in principle pose no obstacle to even-handed measures aimed at reducing consumption or even removing the product from the market entirely. Read the rest of this entry…

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European Court Tackles the Definition of Genocide

Published on October 27, 2015        Author: 

Last week the Grand Chamber of the European Court of Human Rights delivered a very interesting judgment in Vasiliauskas v. Lithuania, no. 35343/05, in which it examined in detail the definition of the crime of genocide. This is another one in a series of relatively sui generis cases, mostly coming from the Baltic states, dealing with historical crimes and pleaded under Article 7 ECHR, which incorporates the nullum crimen sine lege principle. The basic issue in the case was that the applicant, who worked for Soviet security services and was involved in the killings of Lithuanian partisans, was convicted of genocide by Lithuanian courts after the resumption of independence by the Baltic states, under the new Lithuanian Criminal Code which explicitly had retroactive application.

The question that the Court had to answer, therefore, was whether the applicant’s conviction for genocide was reasonably foreseeable, in light of international law as it stood in 1953, when the crime was committed. The Court comes out terribly split on the outcome, ruling by 9 votes to 8 that the conviction was not foreseeable and that there was a violation of Article 7.

The majority and the minority both agree that customary international law at the time prohibited genocide, in parallel to the 1948 Genocide Convention. They also agree that the list of protected groups under Article II of the Convention, which is reflective of custom, deliberately excluded political groups. Thus, a conviction for genocide would not have been sound if the Soviets were ‘merely’ destroying their political opponents in Lithuania. But where the case really gets interesting is in the analysis of the ‘in part’ element of genocidal intent. Here the minority believes that it is perfectly fine to first define the protected group as ethnic Lithuanians, and then further define a ‘part’ of that group as Lithuanian partisans or opponents of Soviet rule. The majority, on the other hand, believes that while the idea of the ‘part’ of a group could foreseeably be thought of in numerical terms in 1953, it was not foreseeable that the part could also be defined in qualitative terms, as emerged from the case law of modern international criminal tribunals (para. 177). This last point is I think highly problematic, since those individuals convicted for intending to destroy a part of a group in modern trials could then also say that their convictions violated nullum crimen, since their crimes also preceded in time the jurisprudence of the tribunals who convicted them – that this happened by 5 or 10 years rather than 50 seems entirely immaterial.

On the other hand, accepting the minority’s approach to the definition of a ‘part’ of a group would expand the scope of genocide far beyond the approach taken so far in international criminal law. For example, if the applicant had intended to kill all gay Lithuanians or all disabled Lithuanians this would, under the minority’s reasoning as far as I understand it, also constitute genocide, even though sexual orientation or disability are not covered by the Genocide Convention. Both groups would be ‘substantial’ in number, much like the partisans. But in any event the whole case is yet another demonstration of the highly problematic and morally arbitrary nature of the definition of genocide, which is unfortunately coupled with the peculiar political magic that the word has. An excessive focus on that crime by prosecutors, judges and in public discourse only serves to systematically devalue other crimes against international law, be it in Bosnia, Darfur, Cambodia, or indeed in Soviet-controlled Lithuania.

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International Law’s Impartiality – Myth and Reality

Published on October 26, 2015        Author: 

Editor’s note: This post is a reaction to Frédéric Mégret’s article issued last week by the European Society of International Law – ESIL Reflection: In Search of International Impartiality.

Frederic Mégret offers us many questions about reconciling the project of international law with notions of impartiality. As he recognizes, impartiality is a multi-faceted concept, and our expectations for impartiality of various participants in the international legal process cannot be uniform. Mégret forces international lawyers to think hard about our biases as we “do” our lawyering. But impartiality needs to be broken down a bit more, and its institutional aspects made clearer. When this is done, some of the dilemmas and contradictions he identifies seem like less cause for existential worry among international lawyers.

Of the many ways to look at impartiality, two seem most relevant to the international lawyer.

First, there is the very general notion of impartiality as acting in a way in which we treat like cases alike: in this sense, impartiality is equivalent to the most minimal form of justice as recognized by both H.L.A. Hart (The Concept of Law, 3rd ed. (2012), p. 159) and R.M. Hare (Moral Thinking: Its Levels, Methods, and Point (1981), p. 157). This is in a certain sense the ideal of all law, domestic and international, and those who administer it.

Second, impartiality can equate with a general even-handedness and respect for the positions of two or more sides or claimants, up to the point where fidelity to other obligations – like the law – may require acting in favor of one side’s position. This sort of impartiality is expected of decision makers charged with applying the law, judicially or otherwise.

Beyond these two conceptions is the idea of impartiality at the centre of contemporary debates in moral philosophy. The impartial standpoint is one in which one’s connections to particular groups or people per se are not per se relevant to one’s judgments or actions, although such ties can be relevant if they can be justified from an impersonal standpoint. All three conceptions see impartiality as basically about not playing favorites. But of course what counts as impartial conduct depends upon a thicker theory of morality or rules of law. Read the rest of this entry…

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From Passive Consent to Self-Defence after the Syrian Protest against the US-led Coalition

Published on October 23, 2015        Author: 

Since September 2014, the US and some Arab States have conducted air strikes against Islamic State (IS) in Syria. They have recently been joined by some Western States, including the UK, Canada, Australia and France. The justification given by those States and the US for their military operations in Syria is based on the right of self-defense, enshrined in Article 51 of the UN Charter. Such justification has been contested by some scholars. Yet, this does not mean those air strikes should be considered unlawful. It is argued that they could be justified by the “passive consent” of Syria.

  1. The end of passive consent

Contrary to their reaction to air strikes conducted by States such as Turkey, Syrian authorities did not formally oppose air strikes by the US-led coalition after they occurred – although some limited objections have been formulated in the media. The Assad regime even seems to have welcomed this international effort to fight against IS and expressed its readiness to cooperate with such effort. As a result, although consent has never been expressly given by the Assad regime to the US-led coalition’s airstrikes, the absence of protest by this regime could be interpreted as “passive consent” thereto. Such interpretation could find some support in the DRC v. Uganda case (para. 46), in which the ICJ inferred the DRC’s consent to the presence of Uganda troops on its soil from the absence of any objection to such presence.

Yet, regardless whether “passive consent” is a valid legal basis for justifying the airstrikes conducted by the US-led coalition against IS in Syria, such legal basis seems now to be in great trouble. Read the rest of this entry…

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The (Non-)Judicialisation of War: German Constitutional Court Judgment on Rescue Operation Pegasus in Libya of 23 September 2015 (Part 1)

Published on October 21, 2015        Author: 

Editor’s Note: This is the first of two posts discussing the ‘Rescue Operation Pegasus’ Judgment of the German Federal Constitutional Court.

In the middle of the civil war in Libya in 2011 (before the start of the UN authorised military operation), the German Chancellor, following the proposals made by the Ministers of Foreign Affairs and of Defence, decided to evacuate 132 persons (German and other civilians) from an industrial camp in Nafurah, 400 km south of Benghazi. The operation – dubbed “Operation Pegasus” – succeeded without any combat action.

Subsequently, a group of members of the German Bundestag seized the German Federal Constitutional Court and argued that the constitutional and statutory division of powers among the Executive and the Legislative branch when it comes to deciding about military action not only demands parliamentary ex ante approval but also, in those urgent cases where the Executive is allowed to decide on its own, requires a formal ex post approval. This claim was rejected by the Court (judgment of the Second Senate, 23 September 2015, No. 2 BvE 6/11).

1. The legal framework and background

Germany is probably the state with the most detailed legal regime on parliamentary involvement in decisions on the use of military force abroad. Read the rest of this entry…

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