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Home Archive for category "Sources of International Law"

Living in the Shadow of Flawed Peace: How General International Law Is Implicated in the Trade War between Japan and South Korea

Published on August 22, 2019        Author: 
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As the anniversary of V-J Day approaches, the legacy of World War II still casts a long shadow on its previous Pacific theatre.  Last month, an unprecedented quadripartite incident involving warplanes from, inter alia, Japan and South Korea played out in the territorial airspace of the contested Dokdo/Takeshima islands, disputed territory that was left unresolved in the postwar San Francisco Peace Treaty of 1951 (SFPT).  Yet, the warning shots fired above those tiny rocks is not the only instance of regional tensions heating up in Northeast Asia.  On 2 August, Japan decided to remove South Korea from its list of trusted trade partners, following its restrictions on the exportation of three important chemicals to South Korea imposed last month.  Days later, Japan pulled back and permitted export of a key chemical for semiconductor manufacturing in Korea.  The two Asian economic titans have since brought their trade war to the attention of the WTO’s General Council

Yet the WTO is not the only international legal regime engaged in the escalating trade conflict between Japan and South Korea.  In this contribution, I aim to show that the now seldom-trodden postwar peace treaties concluding WWII are still pertinent to current international relations as evidenced by the diplomatic row between Seoul and Tokyo.  Self-help remains relevant to the effective operation of the international legal order, especially with respect to the enforcement of international legal rules lying outside the purview of any (quasi)judicial fora such as flaws from postwar peace treaties. 

The End of a World War  

While Japan ended its colonial rule of the Korean Peninsula following its surrender to the Allies at the end of WWII, the Peninsula was soon split into two entities.  Because of the Allies’ disagreement as to whether Korea was a belligerent party, neither Pyongyang nor Seoul signed the SFPT.  Despite its exclusion of both Koreas, the SFPT includes a China/ Korea entitlement clause (article 21).  Among other things, article 4—the framework provision on, inter alia, the disposition of property of Japan and of its nationals in the territories renounced by Japan (including the Korean Peninsula) and the relevant claims—is applicable to Korea by way of this special clause.  Yet the apparent omission of the reparation clause (article 14) sowed seeds of the lingering dispute over responsibility and reparations between Japan and South Korea. Read the rest of this entry…

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Hospital Bombings: Empirical and Theoretical Fallacies of Those Rejecting a Ban

Published on August 16, 2019        Author:  and
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The argument we advance in our recent EJIL Article, ‘‘Hospital Shields’ and the Limits of International Law’, emerged from analysis of empirical data showing how, during the past several years, hospitals were being bombed on a daily basis. Comparing these attacks with official statements released by actors suspected of bombing hospitals, we discovered that one of the recurrent arguments used to legitimise the strikes was that the facilities had been transformed into ‘hospital shields’ and used to conceal military targets. We then decided to reconstruct the history of hospital bombings and found that since 1911 — the first time medical units were bombed from the air — belligerents have consistently justified aerial strikes by claiming that the medical units were being used to hide combatants or harbour weapons.  

This revelation led us to examine in detail the historical development of the legal clauses dealing with the protection of medical units in armed conflicts. Our analysis revealed that the clauses include a number of exceptions that have allowed belligerents to assert that the bombing was carried out in accordance with IHL. We argue that belligerents can do this since hospitals occupy a spatial and legal threshold during armed conflict, and that IHL, which is informed by the rigid distinction between combatants and noncombatants, does not have the vocabulary to deal with liminal people and objects. This, we maintain, enables belligerents to use the law to justify the attacks.  

Our assumption throughout the paper is that IHL is subject to constant interpretation and reinterpretation, and that the way states interpret the law — even if we disagree with their interpretation — helps to establish the law’s meaning. International law is, after all, shaped by states, and through their practices, manuals and utterances they help determine the interpretation of its clauses. Hence, the fact that for over a century many states, among them the most powerful ones, have justified the bombing of hospitals by claiming that they were used as shields is not something we can dismiss by simply claiming that they are misinterpreting the law. After all, those very states introduced the hospital shields exception.  Read the rest of this entry…

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More on Public International Law and Infectious Diseases: Foundations of the Obligation to Report Epidemic Outbreaks

Published on August 15, 2019        Author: 
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In his recent post on the 2018-2019 Ebola Outbreak in the Democratic Republic of Congo, Mr. Villarreal inter alia mentions the connection between the International Health Regulations (IHR) and international human rights law, arguing that states’ obligations under the IHR are to be read in conjunction with those under the International Covenant on Economic, Social and Cultural Rights (ICESCR). Obviously, the right to health enshrined therein is of utmost relevance.

While that point of view deserves full support, a further link could be traced between international human rights law and “international law of infectious diseases” – the obligation of states to report outbreaks of infectious diseases, lying at the very heart of international efforts to cope with pandemics.

This post intends to demonstrate that the reporting obligation for infectious disease outbreaks can be inferred from general legal sources such as the duty of state co-operation and the human right to health as well as from the IHR – a specific regime. The below analysis purports to show how and why this could and should be done.

Disease outbreaks and the duty to co-operate

Although the mentioned Ebola outbreak was originally reported to the World Health Organization (WHO) by the Government of the DRC, states may well be disincentivised to notify outbreaks of contagion, especially on crucial early stages. Hence the need for incentives for honesty in this regard, not excluding legal ones.

The IHR (Art. 6) establish the reporting duty, i.e. the obligation of states to assess events occurring within their territories using a special decision-making instrument attached to the IHR and timely notify the WHO of all events which may constitute a public health emergency of international concern (the legal regime for declaring a PHEIC has been discussed in the mentioned post).

The duty (sometimes referred to as the principle) of state co-operation under general international law and the specific obligation of reporting epidemic outbreaks share an obvious fundamental similarity: both pursue the same objective – addressing issues that transcend national borders and are beyond sovereign control. Although individual states are responsible for preserving public health in their territories, their efforts may be rendered meaningless without international co-operation (J. Tobin, The Right to Health in International Law (2012), p. 325). In the WHO’s words, “health is a shared responsibility, involving equitable access to essential care and collective defense against transnational threats” (UNSG, Global Strategy for Women’s and Children’s Health (2010)).

This finding, however, considerably loses in value due to the legal nature of the duty to co-operate. On the one hand, it is enshrined in the United Nations Charter (Arts.1(3), 2, 55, 56), as well as the UNGA’s 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States and has allegedly become a part of customary international law (R. Wolfrum, International Law of Cooperation (2010), para. 13). On the other hand, under the UNC, the principle of state co-operation is said to reflect one of the UN objectives rather than constitute a binding obligation (R. Wolfrum, International Law of Cooperation (2010), para. 16). The mentioned UNGA Resolution adds little clarity.

The duty to co-operate put into context

So, should it be founded upon the duty to co-operate, the obligation to report epidemic outbreaks will end up being no more enforceable than the latter. Still, there is a chance of enhancing the enforceability by putting the duty of co-operation into a specific context. Read the rest of this entry…

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The Jadhav Judgment: Espionage, Carve-Outs and Customary Exceptions

Published on August 8, 2019        Author:  and
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On 17 July 2019, the ICJ rendered its judgment in Jadhav. In brief, this case involved an Indian national (Mr Jadhav) who was arrested, tried, and convicted by Pakistan for espionage and terrorism offences and sentenced to death. India made repeated requests to Pakistan to allow consular access to Mr Jadhav during his period of detention, all of which were denied. Before the ICJ, India claimed that Pakistan’s conduct violated the Vienna Convention on Consular Relations (VCCR) 1963.

Freya Baetens’ post on this blog provides a useful overview of the ICJ’s judgment. Yet, an aspect of the ICJ’s decision that requires further analysis is the manner in which the Court approached the status of espionage under consular law and customary international law. The interaction between espionage and international law was relevant to this dispute to the extent that Pakistan averred before the Court that, while Article 36 VCCR grants nationals the right to access consular assistance from their home state while detained by a foreign power, states can deny access where the national in question is accused of espionage.

Article 36 VCCR does not expressly state that the right to access consular assistance can be refused where a national is accused of espionage. Nevertheless, Pakistan justified its decision to refuse consular access to Mr Jadhav on three grounds: (1) an espionage carve-out to Article 36; (2) developments in customary international law subsequent to the conclusion of the VCCR; and (3) the 2008 Agreement on Consular Access between Pakistan and India prevails over the VCCR, which allows states to deny consular access where necessary to maintain national security. While the ICJ rejected all three of Pakistan’s submissions, this post focuses specifically upon the Court’s consideration of grounds one and two. Read the rest of this entry…

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Silence and the Use of Force in International Law

Published on July 18, 2019        Author: , and
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States frequently take actions and make statements that implicate international law. But because they do not — and, indeed, could not — express a view on each such act or statement by all other states at all times, silence seems to be the norm, rather than the exception, in international relations.

When states and other international actors do not express their views on a particular incident, issue or statement that implicates international law, what is the legal significance, if any, of their silence? Does it denote acquiescence or quiet protest? Might it not have legal significance at all? Who makes this determination? Who benefits, and who loses, from a finding that a particular silence does or does not yield legal consequences?

Over the years, several scholars — despite some calls for caution — have invoked the silence of states and other international actors as proof of support for particular legal views. This practice has been noticeable and increasingly frequent in jus ad bellum — the field of international law governing the threat or use of force in international relations. For example, writings on the following military actions (among others) invoke silence as having some type of legal significance: Read the rest of this entry…

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A Hidden Reading of the ICC Appeals Chamber’s Judgment in the Jordan Referral Re Al-Bashir

Published on June 6, 2019        Author: 
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On 6 May 2019, the Appeals Chamber of the International Criminal Court (ICC) issued the Judgment in the Jordan Referral re Al-Bashir Appeal. It found that Jordan had no ground to refuse to execute the request by the ICC for arrest and surrender of Omar Al-Bashir, the then Head of State of Sudan – a State not party to the Rome Statute.  In this highly controversial judgment, the Appeals Chamber held that ‘[t]here is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court.’ (par. 1, 113) Endorsing the ICC Pre-Trial Chamber I’s 2011 Malawi Non-Cooperation Decision, the Appeals Chamber furthermore held that ‘[t]he absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant […] also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State.’ (par. 114)  

The Chamber could have ended its judgment on the issue of immunities there, as this finding on customary international law, if correct, would seem to dispose of the matter. However, it decided to also consider the position taken  by Pre-Trial Chamber II in the Jordan Non-Cooperation Decision, that the immunity of the Sudanese President was removed by virtue of the Security Council (SC) resolution referring the situation in Darfur to the ICC.

In this post, I will argue that the Chamber not only confirmed the legal validity of what has been termed the ‘Security Council route’ – as developed in the Jordan & South Africa Non-Cooperation Decisions – but actually upheld that it is such reasoning that must be applied at the horizontal level to displace the immunity of a Head of State of a non-party State. I will show that this conclusion flows from the Joint Concurring Opinion of 4 of the 5 Appeals Chamber judges (Judges Eboe-Osuji, Morrison, Hofmański and Bossa) – constantly referred to in the main Judgment for further elaboration – and the recently issued Q&A regarding the Appeals Chamber Judgment. Read the rest of this entry…

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Is the International Law Commission Elevating Subsequent Agreements and Subsequent Practice?

Published on August 30, 2018        Author: 
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At its most recent (70th) session, the International Law Commission adopted two important sets of “restatements” on two important sources of international law on second reading, namely the Draft Conclusions on the Identification of Customary International Law and the Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties (see the ILC’s 2018 Report (UN Doc A/73/10) here). This post concerns the second of these restatements, subsequent agreements and subsequent practice (see Chapter IV of the Report).  In particular, this post expresses a concern about an apparent, almost surreptitious, attempt by the Commission to elevate subsequent agreements and subsequent practice as tools of interpretation to the same level as the more objective tools outlined in article 31(1) of the Vienna Convention of the Law of Treaties. The concern may seem like a storm in a cup – and I hope that is the case.  However,  there is a real possibility – a possibility which could risk the stability of treaties – that the ordinary meaning of the words of a treaty, in their context and in light of the object and purpose of the treaty could give way to ever-changing moods of States expressed through subsequent agreements and subsequent practice. If states don’t like the terms of the treaties they have adopted, they should amend it through the means provided for in the treaty or in the customary rules on amendments of treaties. Amendment through interpretation, a real likelihood if subsequent agreements and subsequent practice were elevated to an independent status of equal value – perhaps some day even greater – to ordinary meaning, in context and in light of the object and purpose, would be a dangerous course.  It is hoped that this implicit suggestion in the work of the Commission is not taken up the practice of courts in the application of article 31.

I should begin by two caveats.  First, this post, like the draft conclusions themselves, concerns only subsequent agreements and subsequent practice in relation to treaty interpretation.  Thus, what is said here does not affect the role that subsequent agreements or subsequent practice might have, say for modification of treaties in general. Second, there is, admittedly, nothing in the draft conclusions themselves that can be interpreted as the elevation of subsequent agreements and subsequent practice.  The (attempted) elevation comes in the commentaries to a number of provisions in the set of draft conclusions.  I should note, in connection with the last-mentioned caveat, that the commentaries themselves seem to have been elevated to a higher position than before – not quite on par with the draft conclusions but certainly approaching that level.  While in the past, it has been understood that the draft texts adopted by the Commission were to be read with commentaries, during the 70thsession, the Commission inserted language as the first paragraph in the general commentary of both second reading topics to emphasise this point, which had not been emphasised in this manner before. Read the rest of this entry…

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Right of Access to a Court in Civil Claims for Torture Committed Abroad: The European Court Grand Chamber Decision in Naït-Liman

Published on April 3, 2018        Author: 
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The Grand Chamber of the European Court of Human Rights has announced its judgment in the case of Naït-Liman v Switzerland, confirming that the refusal of the Swiss courts to examine a refugee’s civil claim for torture in Tunisia was not a violation of Article 6 § 1 of the European Convention on Human Rights. The decision addresses the concepts of forum of necessity and universal civil jurisdiction, and has important implications for civil claims arising out of wrongful acts that have taken place abroad.

Initial Proceedings

In April 1992, Tunisian national and political activist Abdennacer Naït-Liman was arrested in Italy and flown to Tunis, where he was handed over to members of the Tunisian authorities. Naït-Liman subsequently alleged that on the orders of the then Minister of the Interior, Abdallah Kallel, he was detained for 40 days and brutally tortured with bats, electric shocks, and suspension. He escaped Tunisia in 1993 and travelled to Switzerland with his wife and children, where he was granted refugee status in 1995 and Swiss nationality in 2007.

Naït-Liman learned on 14 February 2001 that Abdallah Kallel was in Switzerland receiving treatment at a hospital, and filed a criminal complaint against him. Kallel was, however, able to leave Switzerland before he was apprehended by the Swiss authorities. Read the rest of this entry…

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Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

Published on March 13, 2018        Author:  and
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In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. Read the rest of this entry…

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Decline and crisis: a plea for better metaphors and criteria

Published on March 7, 2018        Author: 
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Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s introductory post offers an intriguing mix of grand theme and technical detail. It certainly prompted me to reflect on changes both great and small, and their impact on international law. Unlike Monica Hakimi, I have no issue with the thrust of Andreas’ argument; I notably share the feeling that (if I read his opening Dylan quote correctly) animated his post: “the waters around us seem to have grown”.  Perhaps more than Andreas, I remain uncertain whether that feeling is well-founded. More particularly, I wonder how much of our current talk about crises, dark times, disorder & contestation, new isolationism is just noise, perhaps even a reflex. (Ours is a ‘discipline of crisis’ after all; we “revel” in a good one, as Hilary Charlesworth noted perceptively two decades ago.) And how much is based on real, measurable changes in what Andreas refers to as “the social fabric of international law”, or its role in international relations.  It is to this question that my comments in the following are directed. They are an attempt to take the debate further, and they seek to do so by making two pleas: a plea for better metaphors, and a plea for criteria as we discuss ‘International Law in Dark Times’. Read the rest of this entry…

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