The International Court of Justice has issued a call for papers for a panel at its conference on the centenary of the Peace Palace in September. This is probably a first for the Court (at least I can’t remember it issuing a call for papers before), and the selection of the papers will be made by a panel of three of the Court’s judges. Appropriately enough, the Court seems to be accepting submissions only by snail mail. Details here.
This conference seeks papers pursuing empirical, normative, comparative or theoretical approaches to the study of ICTs, and welcomes contributions from law and social science, including philosophy, sociology, criminology, psychology and history. Details here.
The ILA Study Group on ‘Principles on the Engagement of Domestic Courts with International Law’ has issued a call for papers. Those selected will be invited to participate in the discussion of their papers by the Study Group, and will be potentially included in a relevant publication. The deadline for submission of proposals is the end of May. Full details can be found on the Study Group’s website, and the call may be directly downloaded (pdf) here.
Matthew Waxman is Professor of Law at Columbia Law School, New York.
In the latest issue of EJIL, I write about doctrinal form and jus ad bellum in ‘Regulating Resort to Force: Form and Substance of the UN Charter Regime’, 24 EJIL (2013) 151. Much of the legal debate in this area – among states, scholars, and other international actors – takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions: are they too broad or narrow; too permissive or restrictive? In this article, I argue that these debates also sometimes explicitly or implicitly include preferences regarding doctrinal form, by which I mean modes of argumentation and analysis through which facts are assessed in relation to legal directives.
Adherents to one orientation, whom I term ‘Bright-Liners’, generally favour governing states’ legal authority to use force unilaterallyby clear and rigid rules that admit little case by case discretion. Adherents to another orientation, whom I term ‘Balancers’, generally believe that the legality of unilateral resort to force should be judged by objective but flexible standards that call for weighing contextual factors, thereby vesting in states some discretion to account for competing values.
The main point of my paper is that substantive preferences – narrow versus broad international legal authority to use force – often go hand in hand with doctrinal form preferences (i.e. those favouring restrictive authority to use force generally prefer bright-line rules), but that they need not. By prising apart the substantive debate from the debate about doctrinal form, and analyzing some of the reasons why one form might be better than another, I expose some conflicting but often-buried assumptions about how international law works or fails in this area, and I aim to open up some underappreciated ways to think about legal reform. Read the rest of this entry…
President Khama of Botswana (right), Dr Athaliah Molokomme, Attorney General of Botswana (left), Mr Khama, Minister of Defence of Botswana (centre).
In the summer of 2010, the Assembly of States Parties to the Statute of the International Criminal Court, meeting in Kampala, Uganda, adopted amendments to the ICC Statute which define the crime of aggression and provide for the jurisdiction of the ICC over aggression. Under those amendments, the ICC will only be able to exercise jurisdiction over the crime of aggression once 30 States have ratified or accepted the amendments. Furthermore, the Court may not exercise jurisdiction over aggression until 1 January 2017. The amendment provides that there will also be the need for a further decision of the Assembly of States Parties to the ICC Statute to activate the jurisdiction of the Court over aggression. Unlike the Rome Statute of the ICC, ratifications of the Kampala amendments seemed to be going slowly with only 3 states (Liechtenstein, Samoa and Trinidad & Tobago) ratifying the amendments by the end of 2012. However, the pace of ratifications seems set to pick up in 2013. Luxembourg ratified the aggression amendment in January and Estonia did the same in March. In addition, two states - Germany and Botswana - have now completed their domestic processes for ratification and at least one other (Uruguay) is well on the way. The German parliament adopted its Act of Ratification of the Kampala Amendments at the end of February and should deposit its instrument of ratification soon. On April 15, the President of Botswana signed Botswana’s instrument of ratification of the Kampala amendment at a workshop held in Botswana that I was speaking at. He signed the instrument of ratification at a dramatic opening session of a workshop held for African governments on ratification and implementation of the crime of aggression. [On a personal note, I had never seen an instrument of ratification being signed before and I still have not as I arrived at the workshop after the opening session! The workshop was organized by the Government of Liechtenstein and the Global Institute for the Prevention of the Crime of Aggression which has a great website that contains many resources on the crime of aggression.] On April 10, one house of the Uruguayan Parliament (the Chamber of Deputies) approved the bill on ratification of the Kampala Amendments unanimously and the bill is set to go to Uruguayan Senate in the coming weeks (see this report by the Parliamentarians for Global Action).
For the court to be able to exercise jurisdiction over aggression by the beginning of 2017, there will actually need to be 30 ratifications by the beginning of 2016 as the amendments only take effect for each State party one year after the instrument of ratification is deposited. There seems to be a possibility that this number will be reached but that is not so clear. Read the rest of this entry…
Abstract submissions are sought for a conference on ‘Interpretation and International Law’, to be held at the University of Cambridge on 27 August 2013. The deadline for submission of abstracts has been extended to 8 May 2013. Abstracts, along with a resume, can be submitted via cambridgeinterpretation {at} gmail(.)com. For more information, visit here.
David Kretzmer is Professor Emeritus, Hebrew University of Jerusalem and Professor of Law, Sapir Academic College.
Many thanks to the editors of the EJIL for selecting my article for discussion on the blog and to Noam, Gina, Thomas and Mary Ellen for their thoughtful and perceptive comments. These comments provide me with the opportunity of clarifying some of the points I raised in the article and expressing my view about issues that I failed to consider.
The discussion in my article was confined to use of force in exercise of a state’s inherent right to self-defence, recognized in article 51 of the UN Charter. I did not consider humanitarian intervention, nor use of force authorized by the Security Council under article 42 of the Charter. However, Gina is quite right in concluding that my analysis of unilateral use of force by states implicitly rules out unilateral humanitarian intervention. Any decision on such intervention must be a collective one taken by the SC under Chapter VII. ( I shall not discuss the controversial view of the Independent International Commission on Kosovo that there may an intervention which while unlawful is nevertheless legitimate.) While article 42 speaks of forcible action “as may be necessary to maintain or restore international peace and security” I fully accept Mary Ellen’s view that such action must also meet the demands of proportionality.
What is the place of the “narrow proportionality” test in jus ad bellum? Thomas points out that while intimating that this test does indeed have such a place I neglected to develop the issue. Following the line of just war theory, Mary Ellen argues that the very essence of proportionality in jus ad bellum involves “weighing the cost of resort to military force in terms of lives lost and property destroyed relative to the value of the legitimate military end.” While Thomas mentions that there is little, if any, authority on which one can “conclude that the law on the use of force already includes a ‘narrow proportionality’ criterion” it seems to me that such a criterion is inherent in the very notion of proportionality. Hence, as in other contexts in which the means-end proportionality test is employed, some “cost-benefit” analysis must indeed be part of the jus ad bellum test too.
Over the last few days, various media outlets have reported that the US, UK and other countries believe that the Syrian government has used chemical weapons in the Syrian conflict (see BBC report). Apparently, there is not yet conclusive evidence of this and the US and others are investigating the matter. However, US President Obama has stated that use of chemical weapons would be a “game changer.”
“Horrific as it is when mortars are being fired on civilians and people are being indiscriminately killed, to use potential weapons of mass destruction on civilian populations crosses another line with respect to international norms and international law.
“All of us, not just the United States, but around the world, have to recognise how we cannot stand by and permit the systematic use of weapons like chemical weapons on civilian populations,” he said
So, the question is whether, as a matter of international law, the use of chemical weapons would justify intervention in Syria. Military intervention in Syria either directly (by the armed forces of other States) or indirectly (by providing arms to the Syrian opposition) would, in principle, be contrary to Article 2(4) of the United Nations Charter. The issue is whether there are any arguments that may be used to get round the prohibition of the use of force in that provision. In previous posts I have considered the legality of arming the opposition in Syria (and also here) and after examining the different arguments that may be used, concluded that none of them has a strong basis in international law. It does not seem to me that the use of chemical weapons changes the position as a matter of international law.
The main argument that could be used to justify intervention if it is established that chemical weapons have been used would be humanitarian intervention. However, to my knowledge, the United States has never relied on this as a legal basis for intervention (I would be grateful for clarification if I am wrong on this). More importantly, most States reject the view that international law permits States to use force in other States for humanitarian reasons. Perhaps views on this are changing – for example it is not clear whether French and Arab support for arming the Syrian opposition are based on a humanitarian intervention type argument. Perhaps a use of chemical weapons might change the views of others such that we see the law changing. Read the rest of this entry…
After a lull of almost a year and a half, the ICJ got a new case – yesterday Bolivia instituted proceedings against Chile with regard to Chille’s alleged obligation to negotiate with Bolivia a fully sovereign acess to the Pacific Ocean for the latter. The Court’s press release is here, and the application here. Seems like a rather unorthodox case – any comments by readers on whether there have been other cases in which the main claim by the applicant is that the respondent has a duty to negotiate with it are welcome.
Mary Ellen O’Connell, Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution–Kroc Institute, University of Notre Dame
One of the most important points that David Kretzmer makes in his detailed analysis of the principle of proportionality in the jus ad bellum is the following: The question of “[p]roportionality arises … only when the aim or ends pursued [through resort to military force] are legitimate. When it comes to state liability, if those ends are illegitimate all forcible measures used will ipse facto be illegitimate, whether they are proportionate or not.” The ends of military force are legitimate only if they conform to an exception to the United Nations Charter Article 2(4) prohibition on the use of force, meet the requirements of the law of state responsibility, and comply with the general principle of necessity. Proportionality involves weighing the cost of resort to military force in terms of lives lost and property destroyed relative to the value of the legitimate military end. Assessing proportionality as a distinctive requirement of lawful resort to force only makes sense when the other conditions on lawful resort to force are also met. Read the rest of this entry…
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