Today the Court by 10 votes to 6 upheld a preliminary objection by the Russian Federation that it lacked jurisdiction in its dispute under CERD with Georgia, as Georgia failed to exhaust a preliminary requirement under Art. 22 CERD to attempt to resolve the dispute by negotiation before submitting it to the ICJ. The press release and summary are available here; the judgment will be available shortly.  The Court in effect overturned its (provisional) earlier finding in its provisional measures decision a few years back that Art. 22 did not impose such an obligation. In part at least due to changes regarding the composition of the bench, the erstwhile majority became the minority. I’m sure the dissenting opinions will be well worth a read.

On October 20-22, 2011, the American Branch of the International Law Association and the International Law Students Association will host the annual New York-based International Law Weekend (“ILW”), in conjunction with the 90^th annual meeting of the American Branch.  “ILW 2011” will bring together hundreds of legal practitioners, professors, U.N. diplomats, experts from government, NGO’s and private industry, and students.  It will feature lively and contentious panels, distinguished speakers, and delicious receptions. 

The overall theme of ILW 2011 is “International Law and National Politics.”

This year’s three-day conference will focus on issues arising from the interplay and intersection of international rules and norms and domestic politics and policymaking.  To what extent do international standards influence the application and interpretation of national law including complimentary or contrary policies sought by domestic policymakers, non-governmental actors and/or civil society?  Expert panels and discussion sessions will examine these and other issues with regard to such diverse areas as human rights and humanitarian intervention, national security, immigration, trade, labor, health care and the environment.  Though this is the primary focus of the conference, other inventive ideas and proposals, especially arising from current events, are always welcome for consideration as well.

The Co-Chairs of ILW 2011 are Professor Martin S. Flaherty, Professor of Law and Co-Director of the Leitner Center for International Law and Justice at Fordham Law School, mflaherty17{at}yahoo.com, Sahra Diament of the United Nations Office of Legal Affairs, diament{at}un.org, and Jill Schmieder Hereau, Program Coordinator at the International Law Students Association, jshereau{at}ilsa.org.  

The Co-Chairs invite proposals for panels for ILW 2011.  Please submit proposals by email to each of the Co-Chairs no later than Wednesday, May 4, 2011.  Please also submit a copy of your proposal to ILA president Ruth Wedgwood, at rwedgwood{at}jhu.edu and to ILA executive committee chairman John Noyes, jen{at}cwsl.edu.

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The International Tribunal for the Law of the Sea (ITLOS) has announced (see press release here)  that its President has appointed three arbitrators to serve as members of the arbitral tribunal which will hear the dispute between Mauritius and the United Kingdom concerning the ‘Marine Protected Area’ around the Chagos Islands. The dispute concerns the creation by the UK of a Maritime Protected Area (MPA) in the Exclusive Economic Zone (EEZ)  around the Chagos Islands Archipelogo. Mauritius, which claims sovereignty over the Chagos Islands,  submitted the dispute to an Annex VII arbitral Tribunal under the UN Convention on the Law of the Sea. It claims that the UK is not competent to create the MPA and that only Mauritius is entitled to create an EEZ around the Chagos Islands. Readers can find analysis of the case in a piece written on this blog  last month by my colleague Irini Papanicolopulu. According to the ITLOS Press Release:

The arbitrators are Ivan Shearer (Australia), James Kateka (Tanzania), and Albert Hoffmann (South Africa). The President appointed Ivan Shearer as the president of the arbitral tribunal. These appointments were made in consultation with the two parties to the dispute.

James Kateka and Albert Hoffan are both judges of ITLOS and Ivan Shearer, who is Emeritus Professor of Law at the University of Sydney has been ad hoc judge at ITLOS in two cases.  (more…)

The American Society of International Law calls for submissions of scholarly paper proposals for the inaugural ASIL Research Forum to be held at UCLA Law School on November 4-5, 2011.

The Research Forum is a new initiative of the Society aimed at providing a setting for the presentation and focused discussion of works in progress. The Spring Annual Meeting does this in part through its “works-in-progress” sessions, but the Research Forum aims to do this exclusively.

The Research Forum will be held in the fall and, as possible, coordinated as an integral part of the Fall ASIL Mid-Year Meeting. All ASIL members are invited to attend the Forum, whether presenting a paper or not.

Interested participants should submit a proposal (preferably 500, and no more than 1,000, words in length) summarizing the scholarly paper to be presented at the forum. Papers can be on any topic related to international and transnational law. Works-in-progress are particularly encouraged. Interdisciplinary projects, empirical studies, and jointly authored proposals are welcome.

Submissions should be sent to 2011forum {at} asil(.)org by April 30. Proposals will be vetted anonymously by the Research Forum Committee with selections to be announced by June 15.

At present, it is the intent of the Research Forum Committee to organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers.

The 2011 ASIL Research Forum Committee

Laura Dickinson (ASU) CoChair
Kal Raustiala (UCLA) CoChair
Mark Drumbl (Washington & Lee)
Nienke Grossman (Baltimore)
Mary Ellen O’Connell (Notre Dame)

The full text of the resolution is available here. The key provision is op. para. 4:

4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council

Note that this does not merely authorize a no-fly zone; use of force is generally authorized for the purpose of protecting civilians and civilian populated areas, so long as there is no ‘foreign occupation force of any form.’ This us a very broad authorization; the formulation does not necessarily exclude a limited use of ground forces, so long as that force is not of such intensity and duration that it constitutes an occupation. Over at Lawfare, Bobby Chesney has more analysis. The intervention against Lybia is set to commence shortly.

I’d like to draw our readers’ attention to an excellent recent article by Chimene Keitner, ‘Rights Beyond Borders,’ published in the Yale Journal of International Law, and dealing with the extraterritorial application of domestic guarantees of individual rights. It is a timely piece which engages in a comparative examination of relevant US, UK and Canadian case law; there are certainly lessons to be learned here with regard to the extraterritorial application of human rights treaties. A symposium/discussion of the article is available on Opinio Juris.

Yesterday the UN Security Council unanimously adopted Resolution 1970, whereby it (1) imposed an arms embargo on Lybia; (2) imposed targeted sanctions, including travel bans and asset freezes, on high-level persons in the Lybian regime; (3) and referred the situation in Lybia to the International Criminal Court. This is the second UNSC referral to the ICC, the first after Darfur and the first to be passed unanimously. The full text of the resolution is available here, and a UN press release can be found here.

The resolution also makes several notable findings, such as that the ‘widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’; it also requests Lybia to respect both human rights and IHL, which indicates that the UNSC considers there to be an armed conflict in Lybia, and that IHL and human rights apply in a complementary fashion (this is of course not the first time that the Council has said something similar).  Notably with regard to the ICC referral, as with Darfur the resolution does not expressly say that Gaddafi will not be entitled to head of state immunity (assuming that the ‘head of the revolution’ is indeed a head of state under international law), even though that inference may be reasonably drawn – that issue might of course become moot if Gaddafi is actually toppled, which is perhaps more likely than not.

As for the targeted sanctions regime, like with the terrorist sanctions regime before it there is very little here with regard to guarantees of due process for the listed persons. Will the Gaddafis, led perhaps by LSE-PhD holding Saif (who may or may not had plagiarized his PhD on human rights and global governance), follow the bright example of the late Saddam Hussein and file an application with the European Court of Human Rights to protect their (presumable) Swiss millions? Bearing in mind the manifest deficit in the dictatorial psyche when it comes to self-irony, I wouldn’t put it past them.

I am sure I speak for everyone in our community when I say that I was saddened to hear that the International Law Reporter blog has had its final post.  The ILR has been an invaluable resource for keeping us abreast of new scholarship, and we should all thank Jacob Cogan for providing us with this service for so many years, despite what must have been an enormous time commitment on his part.  In his final post, Jacob has expressed the hope that somebody else would take up this challenge, and we all join him in this hope. Restarting the ILR would certainly be a worthwhile project for any scholar or group of scholars, for which I’m sure they could attract some reasonable funding. To the extent that EJIL: Talk! could provide support for any such project, we would be happy to help.

The Harvard International Law Journal’s website has initiated a fascinating series of interviews with leading international lawyers (see here). Thus far, the focus has been on practising international lawyers with experience in government and international organizations. There are  recent interviews with John Bellinger III, Legal Adviser at the US State Department from 2005-2009, Larry Johnson, former UN Assistant Secretary General for Legal Affairs and most recently with Jean-Claude Piris formerly Director General of the Legal Service of the Council of the European Union. The interviewers explore how these individuals got into the practice of international law and interviewees reflect on their experiences at the highest levels of government and international organizations. For example Larry Johnson speaks of his experience in crafting the Statutes of the International Criminal Tribunals for the Former Yugoslavia and the Special Tribunal for Lebanon. Apparently, Security Council members were opposed to including international crimes into the Statute of the latter. In his interview, John Bellinger not only reflects on his own experiences as Legal Adviser in George Bush’s State Department but also comments on the failure of the Obama Administration’s to achieve progress in certain areas of international law.

There is another very interesting set of interviews of international law scholars and practitioners on the website of the University of Cambridge’s Squire Law Library. The Eminent Scholar’s archive includes interviews with distinguished international lawyers such as Prof. Sir Eli Lauterpacht, Prof. Sir Derek Bowett, Judge Stephen Schwebel and Prof. Martti Koskenniemi all of whom have a Cambridge connection, have had distinguished academic careers as well as very significant practical experience of international law. The Cambridge interviews are longer than the Harvard ones but no less interesting. Apart from the interview of Martti Koskenniemi (which I particularly recommend), the Cambridge interviews are largely autobiographical and provide very interesting recollections of the careers of these individuals. They not only include transcripts but also audio files.

Today the Appeals Chamber of the Special Tribunal for Lebanon delivered an interlocutory decision on several points of applicable law before the Tribunal. It has essentially done so in an advisory fashion, at the request of the pre-trial judge, in order to provide him with adequate guidance with respect to 15 questions of law. In other words, the Appeals Chamber rendered this decision without actually having a concrete case before it, after having heard the submissions of the prosecution and the defense office on the legal issues in question. The 150-page decision is available here; a summary read out by President Cassese is available here.

This is an incredibly rich decision – if you will (and appropriately enough bearing in mind Judge Cassese’s involvement), the STL’s Tadic. I am sure that it will provoke much discussion, and not a little bit of controversy. I had so far only given the decision a very quick skim, but let me try to point out some of the most interesting developments.

The Appeals Chamber held, inter alia, that customary international law now recognizes a distinct crime of terrorism in peacetime. Notably, the Chamber held not only that a customary rule exists between states that they need to suppress terrorist crimes, but that a customary rule applicable to individuals has evolved, directly creating a true international crime. This is of course a position that Judge Cassese has been advocating for some time extra-curially – see e.g. his International Criminal Law textbook. That position is however controversial to say the least – see e.g. the textbook by Cryer et al, 2nd ed., at p. 338 ff. Now, note that the STL is actually bound by its Statute to apply Lebanese substantive criminal law, and its own definition of terrorism (on which the Chamber has several things to say); to that extent whether or not customary international law recognizes a distinct crime of terrorism is beside the point. Its only relevance is that the Chamber has held that in cases of doubt it will interpret Lebanese law so that it conforms with international law, but it was hardly necessary for it to reach the very ‘activist’ conclusion that terrorism has now become a true international crime, like genocide, crimes against humanity and war crimes. Whether the Chamber’s analysis of the relevant state practice and opinio juris is to be considered persuasive outside the STL remains to be seen.

Several years ago, I published an article in the JICJ in which I anticipated another problem which the Chamber had to deal with today. Namely, while the STL Statute provides that the only body of applicable law is Lebanese law, it at the same time allows the application of uniquely international forms of individual criminal responsibility, namely common purpose (or joint criminal enterprise, particularly its third or extended type) and command responsibility. I argued that applying these forms responsibility to the individuals accused of assassinating Hariri would violate the principle of legality, nullum crimen sine lege, as it would allow for the punishment of individuals who could not be punished under Lebanese law, the only relevant body of substantive law. Before the Appeals Chamber, the defense office developed this legality argument in great detail, while the prosecution argued that under the plain language of the Statute it could rely on international forms of responsibility in all circumstances.

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