The Third ILDC Colloquium on ‘Domestic Courts as Agents of Legal Development’ is to be held in Glasgow on 19 and 20 May 2011. The Third ILDC Colloquium, part of COST Action 0602 on International Law in Domestic Courts, is organized by the Amsterdam Center for International Law of the University of Amsterdam and the School of Law of the University of Glasgow.

The Colloquium will address the function of domestic courts as agents for the development of international law, will aim to give a detailed account of domestic court influence on international law, and to help clarify the general problem of how to situate domestic courts within the international law-making process.

Registration is open, and those interested can find the Colloquium’s programme, as well as information about registration and accommodation on the Colloquium’s website.

The Research Project on Shared Responsibility in International Law (SHARES) is pleased to announce the official launch of the SHARES website: www.sharesproject.nl.

The website includes a detailed description of the SHARES project and its project members. The website also features news, events, publications, blog posts and resources on shared responsibility in international law.

The ambition of the SHARES project is to examine an unexplored and largely unrecognized problem: the allocation of international responsibilities among multiple states and other actors. It seeks to uncover the nature and extent of the problem of sharing responsibility in an increasingly interdependent and heterogeneous international legal order. SHARES will therefore offer new concepts, principles and perspectives for understanding how the international legal order may deal with shared responsibilities.

The SHARES project is a research project of the Amsterdam Center for International Law, led by Professor André Nollkaemper, and funded by the European Research Council.

 EJIL receives hundreds of unsolicited articles each year. We welcome these submissions. They are an important part of who we are. They constitute the pool from which, alongside the pieces we commission ourselves, we build our individual issues. A few of the submissions are just awful. But most are good and, naturally, we receive many more fine articles than we are able to publish. We know it is disappointing for authors to receive a rejection letter. We truly hope that authors will not give up on us if they are not always successful with this or that submission.

In 21 years we have never laid bare our selection and editorial process. This is not exactly an apology: at one time or another I have sat on the Editorial, Advisory, Scientific and other such Boards of over 23 different journals and do not recall ever seeing another journal doing such. Be that as it may, I decided that both our authors and readers should know how the process works.

I also compiled some basic aggregate statistics on our authors over the first 20 years of EJIL – and slightly more detailed stats from the last two years. This made available in the post below. (Relax, nothing personal – country of submission, gender, etc.). We ourselves were surprised by some of the results. But first things first: How is the selection of articles for publication made? Read the rest of this entry »

The ‘European’ in the European Journal of International Law has multiple meanings. I refer you to the Editorial in our first issue 21 years ago, partly replicated in the Editorial to our first issue of the 20th Anniversary volume. Still, how European has our authors list been in the first 20 years of EJIL? (Note, we do not check passports or birth certificates. We are using the institutional affiliation of the author as a proxy for origin. This can lead at times to amusing anomalies. We published a piece by Gráinne de Búrca on Kadi. A European writing about a European case. But, given her current US institutional affiliation, that would have counted as a submission from the USA in the stats. For the most part, the anomalies cancel themselves out and the institutional nationality serves as a reliable proxy – most submissions from Italian universities are by Italian nationals.)

Over 20 years about 62% of our articles originated in EU countries, a further 7% in Council of Europe countries not belonging to the EU, about 20% from the United States and about 11% from the rest of the world. This is a 20-year average, which can change from year to year. In 2010 about 57% originated in the EU, a further 22% in Council of Europe countries outside the EU, 15% from the rest of the world and 6% from the USA. Read the rest of this entry »

The latest issue of EJIL (Vol. 21, no. 1) has just been published. We open with a symposium on the The Human Dimension of International Cultural Heritage Law convened by Francesco Francioni of the Board of Editors, whose Introduction articulates its Raison d‘être. One interesting thread which links the views of the various contributors (Ana Filipa Vrdoljak, Thérèse O’Donnell, Lucas Lixinski, Federico Lenzerini, Siegfried Wiessner, Karen Engle, Gaetano Pentassuglia and Micaela Frulli) is a shift from object to subject: property is featured as a channel towards the recognition and protection of cultural identity in its rich human dimensions. This phenomenon can be observed in the various facets of international cultural heritage law, whether human rights law with its eternal tension between liberal and communitarian trends, or in the context of the law of war, both in its jus in bello and jus post bellum dimensions. The interest and importance of this symposium transcends its specific subject matter.

In this issue’s EJIL:Debate! Sandesh Sivakumaran (see articles here and here) and Gabriella Blum skirmish about the international law of internal armed conflict, addressing both its patchwork doctrinal landscape and its conceptual physiognomy. The exchange repays careful study.

The Last Page features another memorable poem, The Lion Pass, by international law scholar Gregory Shaffer.

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow.

In this post I analyse the legal basis for the current use of force by the UN and France in Côte d’Ivoire, examining how that use of force impacts the status and exceptions of the prohibition of the use of force in Article 2(4) of the Charter and in customary law. In particular, I want to discuss the scope of the authorizations by the UN Security Council to use force, comparing the situation in Côte d’Ivoire with the on-going situation in Libya. The similarity between the two cases is more obvious than has been observed, as in both cases the UN has authorized the use of force in order to protect civilians, and in both cases those authorised by the Security Council to use force have directed that force against one side in an ongoing civil war, including targeting buildings belonging to the leader of that side who claims to be head of State (Col. Gaddafi & Laurent Gbagbo, see here and here). In both cases, questions have arisen as to the scope of the mandate and to whether recent uses of force overstep that mandate (see here with regard to Côte d’Ivoire).

I. The History of the Conflict in Côte d’Ivoire

Côte d’Ivoire has been in a state of turmoil since an attempted coup led to the country being split into southern areas, controlled by the government, and northern areas, controlled by rebels, in 2002. At the time, France used force in Côte d’Ivoire, allegedly to protect its nationals in the country, but was accused by both the government and the insurgents as taking sides (BBC). An eventual cease-fire in 2003 proved to be fragile, with the rebels refusing to disarm, and the French intervening in response to government attacks on French troops stationed in Côte d’Ivoire in 2004. ECOWAS, AU, and UN efforts facilitated an agreement between the factions, and elections were scheduled to take place in 2005 (see SCRs 1464 [2003] and 1479 [2003]). These kept being postponed due to the precarious security, but were finally held in November 2010.

Ouattara, Gbagbo’s rival, won the very close election, the results of which were certified by the UN (see SCR 1765 [2007] para 6), and accepted by the EU, the AU, ECOWAS, and most States that cared to form an opinion (with the notable exception of Angola and Lebanon). However, Gbagbo refused to accept defeat (see for further background Jean d’Aspremont’s excellent post). In the aftermath of the election, both leaders were inaugurated in separate ceremonies, and claimed to be the President of Côte d’Ivoire. Since there seemed to be no forthcoming solution in the impasse, the AU gave Gbagbo an ultimatum, inviting him to hand over power to Ouattara by 24 March, while the EU, the US, and ECOWAS imposed sanctions on Côte d’Ivoire, a move welcomed by the UN Security Council (see SCR 1962 [2010] preamble). When the ultimatum expired with Gbagbo still refusing to leave, pro-Ouattara forces marched from their strongholds in the north towards Abidjan to seize power by force. They are now in Abidjan, having taken over most of the rest of the country, and are laying siege to the Presidential compound, where Gbagbo has taken refuge. Read the rest of this entry »

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.

In his post of yesterday, Marko notes the debate surrounding whether the Coalition now taking military action in Libya can arm the rebels fighting in that country. This question is perhaps part of a broader question of whether the coalition can provide other military aid to the rebels, for example, by providing close air support for rebel advances into towns under the control of Col Gaddafi’s forces. As Marko notes, while the US and UK  have both denied that they have made a decision to provide arms to the rebels (see here and here), they have both argued that providing arms to the rebels would not be a breach of the arms embargo imposed by Security Council Resolution 1970. In fact media reports today indicate that President Obama has authorised covert aid to the rebels. Likewise, though there have been denials of direct support from the air for rebel operations on the ground, the media reported that rebel advances on towns like Ajdabiya (and others) was only made possible because of coalition attacks against Libya military forces defending those towns. So, is this direct support for the rebels lawful? When I was asked about the legality of providing arms to the rebels at the start of this week I was of the view that this would be contrary to the arms embargo. Having thought about it a bit more, I have changed my mind about the legality question. Politically, I don’t think it ought to be done unless we know who these people are and what their aims are. The approach that my enemy’s enemy is my friend doesn’t always turn out for the best. We need only think of the experience of arming the Afghan mujahadeen in the 1980s to know that caution is required. But others know far more than I do about whether it is a wise thing to do politically and militarily. As far as law is concerned, such assistance is not, in my view, excluded by the relevant Security Council resolutions. However, the assistance that can be given is also limited by the mandate that Security Council Resolution 1973 confers. The assistance must be directed, solely, at protection of civilians and civilian populated areas.

Read the rest of this entry »

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.

  Read the rest of this entry »

My friend Claus Kress yesterday brought to my attention a most pertinent legal issue: In Resolution 1970, the UN Security Council imposed an arms embargo on Lybia. The embargo was reaffirmed and strengthened in op. paras. 13-16 of Resolution 1973. The embargo appears to be comprehensive; no explicit exception is made for the possible distribution of arms to the rebels. However, both President Obama and Prime Minister Cameron have deliberately left open the possibility of supplying arms to the rebels, even though they have not done so for now. What then is the legal argument in support of supplying the rebels with armaments? Yesterday Secretary Clinton remarked that “It is our interpretation that [UN Security Council resolution] 1973 amended or overrode the absolute prohibition on arms to anyone in Libya.” She was echoed today by the PM in Parliament, who said that “The legal position is clear that the arms embargo applies to the whole territory of Libya. But at the same time UNSCR 1973 allows all necessary measures to protect civilians and civilian-populated areas… We do not rule it out but we have not taken the decision to do so.” This position was confirmed by the UK foreign secretary.

This argument raises serious questions of interpretation and of the deliberate ambiguity in the drafting of UNSC resolutions. On the one hand, there are specific provisions imposing an arms embargo without exceptions. On the other, a broad phrase such as ‘all necessary measures’ is taken as overriding the embargo, thus allowing foreign powers to favour one of the parties to the armed conflict. I am not saying that this argument is necessarily wrong, but its correctness is also far from obvious. It is of course tantamount to saying that the provision of arms to organized armed groups can be a method of protecting civilians or civilian populated areas; it also has the Council taking sides in a conflict, without saying so explicitly. I am not aware of similar arguments being made so forcefully by states with regard to UNSC arms embargos – though of course recall the embargo imposed on Bosnia, and the Bosnian argument that it was void as it disabled the Bosnian Muslims to defend themselves from genocide, in conflict with a norm of jus cogens.