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Announcements: James Brown Scott Prize; Revista Tribuna Internacional; CfP Jus Post Bellum and the Justice of Peace

Published on July 9, 2016        Author: 

1. Institut de droit international James Brown Scott Prize. This competition, endowing an award of 10’000 Swiss francs, is organized under the auspices of the Institute of International Law as established by the late J.B. Scott. The Prize bears the name of thirteen distinguished international lawyers on a rotating basis, and on this occasion is the John Westlake Prize. The subject of this competition is ‘Dispute Settlement Before International Courts and Tribunals’. Papers related to this subject can be submitted in German, English, Spanish French, or Italian and should comply with all other requirements as specified in the Regulations of the Prize, which can be consulted in the Yearbook of the Institute of International Law, Vol. 61-II, 1986, p. 359-367 and on the website of the Institute of International Law. The papers have to be submitted to the Secretary-General of the Institute by 31 December 2016 to the following address: Professor Marcelo Kohen IHEID, Chemin Eugène Rigot 2 Case postale 136 CH-1211 Geneva 21. The Prize will be awarded during the 2017 session of the Institute of International Law.

2. Revista Tribuna Internacional New Issue. Issue N° 9 (1st semester, 2016) of law journal “Revista Tribuna Internacional”, Law Faculty – Univesity of Chile, is now online. It includes academic articles, commentaries of jurisprudence and book reviews of books related to public and private international law and international relations by authors from many different countries. It can be accessed here.  Articles in Spanish and English are accepted. The rules of submission can be read here.

3. Call for Papers: Jus Post Bellum and the Justice of Peace. The Jus Post Bellum Project is seeking submissions of academic research papers for presentation at the final project conference on  ‘Jus Post Bellum and the Justice of Peace’ on 29-30 September 2016 in The Hague. In the Conference, we will explore to what extent international law contains norms and principles of just and sustainable peace in specific areas, such as (i) ending of conflict and conflict termination (cease-fire, peace agreements, constitutional reform),  (ii) security (use of force in peace operations, detention, law enforcement), (iii) protection of public goods (cultural property), (iv) movement of persons (property rights, immigration, refugees), (v) accountability (sequencing of peace and justice, hybrid/international/domestic tribunals),  (vi) rule of law reform (vetting practices, institution building, sequencing), (vii) sovereign debt and economic injustice (land reform, socio-economic rights), and  (viii) reparation and prevention (collective reparations, reconciliation). Submissions should include an abstract of no more than 300 words and be accompanied by a CV. Submissions must be written in English and sent to j.m.iverson {at} law.leidenuniv(.)nl no later than 5 August 2016. Draft papers should be submitted by 15 September 2016.

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UK Iraq Inquiry Report

Published on July 6, 2016        Author: 

In the past couple of hours, the Chilcot inquiry on the Iraq war delivered its long-awaited report, which can be accessed here. It is highly critical of virtually every aspect of UK policy that led to the Iraq war and its unfortunate aftermath – indeed, much more critical than many have expected. When it comes to the legal aspects, the inquiry’s mandate did not include an assessment of the legality of the use of force, but the inquiry nonetheless concluded that “the UK chose to join the invasion of Iraq before the peaceful options for disarmament had been exhausted. Military action at that time was not a last resort” and that:

The judgements about the severity of the threat posed by Iraq’s weapons of mass destruction – WMD – were presented with a certainty that was not justified.

Despite explicit warnings, the consequences of the invasion were underestimated. The planning and preparations for Iraq after Saddam Hussein were wholly inadequate.

The government failed to achieve its stated objectives.

The inquiry also found that:

Mr Blair and Mr Straw blamed France for the “impasse” in the UN and claimed that the UK Government was acting on behalf of the international community “to uphold the authority of the Security Council”.

In the absence of a majority in support of military action, we consider that the UK was, in fact, undermining the Security Council’s authority.

Second, the Inquiry has not expressed a view on whether military action was legal. That could, of course, only be resolved by a properly constituted and internationally recognised Court.

We have, however, concluded that the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory.

A 170-page chapter of the report on the provision of legal advice is here; further commentary from Joshua Rozenberg here.

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‘Brexit’, Article 50 TEU and the Constitutional Significance of the UK Referendum

Published on July 6, 2016        Author: 

This post tries to answer two questions:

First, who has the right to trigger the process of Article 50 TEU under the UK constitution? Second, what is constitutional significance of the UK referendum?

Article 50 TEU is the provision that governs the process of withdrawal of an existing EU Member State from the Union. The provision was introduced by the Treaty of Lisbon and it has not been used thus far. This provision is drafted in a way that is not too prescriptive with the clear intention for allowing a considerable margin for manoeuvring in the ensuing negotiations.

Article 50 (1) stipulates that a Member State may decide to withdraw from the Union in accordance with its own constitutional requirements whereas Article 50 (2) provides that the relevant Member State must notify its intention to the European Council.

It is clear that once the process of Article 50 begins, the negotiating position of the Union is strengthened. This is because Article 50 (3) TEU imposes a time frame for the completion of negotiations (two years). If at the end of this period the EU and the Member State fail to reach an agreement, the Treaties cease to apply to that Member State thus leading to a disorderly withdrawal. The two year period may be extended by the European Council acting unanimously. Since the costs of a disorderly withdrawal are apparently higher for the Member State that leaves the Union, it is obvious that the two year time-frame hangs like a sword of Damocles over its shoulders. This means that the question of when the process begins and on whose initiative is critical.

The ‘who’ and ‘when’ under the UK Constitutional Arrangements Regarding the Invocation of Article 50 TEU

The question of who has the power to trigger Article 50 TEU has attracted a deserved amount of attention by scholars and commentators. Most of the scholars agree that EU partners cannot trigger the withdrawal process (see for example Marl Elliott, Sionaidh Douglas-Scott, Nick Barber, Tom Hickman and Jeff King).

This is certainly the case from a legal point of view however, it is possible for the EU to increase the pressure on the UK to trigger the renegotiation process. How? Read the rest of this entry…

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Filed under: EJIL Analysis, European Union
 
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Beyond the Mantra, Towards the Granular: The Special Rapporteur on Freedom of Expression’s Report on the Private Sector in the Digital Age

Published on July 5, 2016        Author: 

I. Introduction

“To what extent should the private sector be responsible for the promotion and protection of freedom of opinion and expression?” This is the question at the heart of the latest report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Professor David Kaye (“Special Rapporteur”), which he presented at the 32nd session of the Human Rights Council, which ended last week. The current report does not purport to offer comprehensive answers, but instead maps out the myriad of ways in which the private sector impacts upon freedom of expression in the digital age, the “regulatory ecosystem on the Internet”, and the legal and policy issues that deserve particular attention. Surprisingly, UN human rights bodies only began really grappling with the challenges of the Internet five years ago. In this period, there have been reports of the Special Rapporteur and his predecessor on encryption and anonymity tools, mass surveillance, and the Internet as well as a series of Human Rights Council and General Assembly resolutions on human rights on the Internet and the right to privacy in the digital age. Such texts have made the statement that “the same rights that people have offline must also be protected online, in particular freedom of expression” into a mantra. Against this backdrop, the current report is pioneering for several reasons.

II. Breaking new ground

First and foremost, the report is comprehensive in its mapping of the digital environment and related freedom of expression challenges. As the delegation of the Netherlands recognised, it is the “first full overview of all private actors in ICT whose actions impact freedom of expression and opinion”. The report disaggregates the “vast” and “overlapping” range of roles played by private sector actors in “organising, accessing, populating and regulating the Internet” and distinguishes certain pressing legal and policy issues, concerning content regulation, surveillance and digital security, transparency and remedies. In doing so, it identifies the array of private actors including telecommunications and Internet service providers, web hosting services, hardware firms, search engines and social media platforms, media companies, companies producing surveillance technologies and multi-stakeholder processes. It also, importantly, draws on examples from many countries around the world, including Sweden, Russia, Uruguay, Brazil, China, India, South Africa, Tanzania, the UK and the US.   Read the rest of this entry…

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Brexit and International Law

Published on July 4, 2016        Author: 

In earlier posts (here and here) there was a discussion about the different scenarios that might play out following the UK’s vote to exit the European Union. These and other debates have focused largely on the legal implications for the UK and the European Union and the modalities of their future relationship. Yet the UK’s withdrawal from the Union will also have consequences at the international level, especially for the hundreds of international agreements concluded by EU and the UK with third states and international organizations. In this post I will look at some of the international law issues that arise from the UK’s exit from the European Union. The EU is a unique, perhaps even sui generis, international organization, but it is an international organization nevertheless and withdrawal will necessarily gives rise to questions under public international law. An important question in this regard is the fate of the international treaties to which the EU and the UK are party.

The first point of departure are the rules in the treaty establishing the international organization itself, that is, the EU Treaties. The Vienna Convention on the Law of Treaties (VCLT) establishes that a party may withdraw ‘in conformity with the provisions of the treaty’, which in this case is Article 50 of the Treaty on European Union (TEU). Once this has been invoked, the EU and the UK will negotiate an agreement setting out the arrangements for withdrawal. Some have argued that the UK might be able to ‘bypass’ Article 50 TEU using international law, by invoking the Brexit vote as a ‘fundamental change in circumstances’ according to Article 62(1)(a) VCLT. Such proposals should not be taken seriously. This article of the VCLT was deliberately worded negatively, stating that a fundamental change in circumstances cannot be invoked unless two restrictive conditions are fulfilled. These are: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. The International Court of Justice has moreover pointed out “the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases.” (Case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7. para. 104) As Professor Kenneth Armstrong argues:

“there is simply no way that the European Court of Justice would permit the autonomous legal order of the European Union and the specific procedural mechanism of Article 50 TEU to bend to international law in this manner.”

While it is possible that avenues other than Article 50 may be used (for instance, to allow a form of ‘associate membership’) the EU Treaties provide a clear provision that covers the exit of a Member. Article 50 is silent, however, for the most part on the important issues that will face the UK, the EU and the many other states with whom they have legal relations. Read the rest of this entry…

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Announcements: GRILI Conference on International Immunities; GoJIL New Issue; Chatham House Event on Freedom of Expression; Colloquium on Maritime Disputes Settlement

Published on July 3, 2016        Author: 

1. GRILI Conference on ‘International Immunities: Law in a State of Flux?’. On 15-16 December 2016, the Ghent Rolin-Jaequemyns International Law Institute (GRILI) at Ghent University will be hosting an international two-day conference entitled ‘International Immunities: Law in a State of Flux?’ The aim of the conference – organized in partnership with the Université Libre de Bruxelles (ULB), Katholieke Universiteit Leuven (KUL), and Université Catholique de Louvain (UCL) – is to take stock of recent evolutions pertaining to international immunities and to offer a comprehensive tour d’horizon of outstanding challenges and controversies. The conference will bring together distinguished scholars as well as practitioners, civil servants and other experts (e.g. ICC, ILC, EU, Foreign Affairs), to broach the various issues at stake. Presentations will be grouped into four clusters: jurisdictional immunities, immunity from execution, immunities in the international legal order, and immunities of the armed forces / in armed conflict. The conference will also feature a roundtable on the immunities of foreign officials, during which the ILC Special Rapporteur Concepción Escobar Hernández will present her views and engage with expert respondents. The conference will conclude with a keynote lecture by Judge Christine Van den Wyngaert of the ICC. Detailed information can be found here.

2. GoJIL New Issue. The Goettingen Journal of International Law (GoJIL) has recently released the first issue of its seventh volume. The 7.1 edition is a special issue on the exercise of International Public Authority. It emerges from a fruitful collaboration with scholars who participated in workshops on this topic at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. The new edition features an article by Matthias Goldmann and Mona Sonnen. Further contributions are from Tim Staal, Pedro A. Villarreal, Biel Company and Clemens A. Feinäugle. The journal’s latest issue can be accessed at www.gojil.eu.

3. Chatham House Event – Challenges to Freedom of Expression. The International Law Programme at Chatham House will be hosting a meeting on ‘Challenges to Freedom of Expression’ on 20 July 2016 at Chatham House. For further details and to enquire about registering see here.

4. Public International Law Colloquium on Maritime Disputes Settlement.  The Chinese Society of International Law and the Hong Kong International Arbitration Centre (HKIAC) will jointly host a Public International Law Colloquium on Maritime Disputes Settlement on 15 – 16 July 2016 at Hong Kong Convention and Exhibition Center. The Colloquium will focus on topics including: territorial sovereignty, maritime entitlement and the application of international law; the law and practice with respect to archipelago and islands; applicability of compulsory procedures under the United Nations Convention on the Law of the Sea: preconditions, limitations and exceptions; and, historic rights in international law. Currently, many prominent international law experts, including incumbent and former ICJ judges, ITLOS judges, ILC members, leading scholars and practitioners at the forefront have confirmed to speak on this Colloquium. More information can be found here.
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New Blog: Foreign States in English Courts

Published on July 1, 2016        Author: 

Over the past couple of decades there has been a significant increase in the number of cases in the English courts raising questions of international law. Many of those cases involve proceedings by or against foreign states, or occasionally raising issues involving foreign states even when not a party to the proceedings. I would like to draw the attention of our readers to a new blog Foreign States in English Courts which has been established by my colleague Professor Dan Sarooshi (also of Essex Court Chambers) and Robert Volterra (senior partner of Volterra Fietta) which will assist in keeping on top of this burgeoning case law. The blog is intended to provide concise, informative case summaries of recent and important English court decisions involving foreign States as litigants.  As they say:

This blog aims to highlight the latest, most important case law involving foreign States in the English courts. Our aim is not to provide a complete account of the factual matrix and law decided by each case, but rather to provide the busy practitioner with a quick reference to the most important cases as they emerge.

I am sure the blog will also be of interest to academics and students.

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The New Arbitrariness and Competing Constitutionalisms: Remarks on ECtHR Grand Chamber Al-Dulimi

Published on June 30, 2016        Author: 

In a judgment published on 21 June 2016, the ECtHR Grand Chamber confirmed a violation of Art. 6(1) ECHR by Switzerland. The history of the case is summarized in my post on the chamber judgment of 26 November 2013. Al-Dulimi was considered by the relevant UN sanctions committee to be the former head of finance of the Iraqi secret service under Saddam Hussain (a fact which he apparently never denied), and he ran the firm Montana Management, registered under the laws of Panama. Al-Dulimi’s bank accounts in Switzerland had been frozen in 2004 by Switzerland pursuant to Resolution 1483 (2003). The main findings of the new Grand Chamber judgment are reported by Marko Milanovic in his post.

As Marko already pointed out, the reasoning of the Grand Chamber was carried only by a slim majority. The judgment followed the Chamber judgment in three points: First, it sought to harmonize the obligations of Member States under the UN Charter and under the ECHR, and thereby denied the conflict and evaded the question of legal consequences flowing from Art. 103 UN Charter. Second, the Grand Chamber found that although the Swiss authorities’ and courts’ refusal to review the complaint pursued the legitimate objective of maintaining international peace and security, the denial of any substantive review was disproportionate and therefore impaired “the very essence of the applicant’s right of access to a court“ (para. 151). Third, as the Chamber had done before, no just satisfaction was awarded to the applicant.

Read the rest of this entry…

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29 + 1 = 30 – The Kampala Amendment on the Crime of Aggression and the Recent Accession by Palestine

Published on June 29, 2016        Author: 

Some time ago, I wrote a contribution entitled ‘Does 19 + 11 Equal 30?: the Nitty Gritty of the Law of Treaties and the Kampala Amendment to the Rome Statute on the Crime of Aggression’ on the question as to whether those States that ratified the Rome Statute after the Kampala amendment on the crime of aggression was adopted ought to be counted towards the 30 acceptances required for the activation of Kampala amendments.

On 22 June 2016 Iceland became the 29th State to ratify the amendment, and, most recently, on June 26, 2016 Palestine ratified the said amendment (see also here for the text of the relevant depositary notification), rendering the issue just mentioned possibly moot. The 30th ratification of the Kampala amendment on the crime of aggression by Palestine now seems to open the possibility for the Assembly of States Parties, to adopt after January 1st 2017 the decision to activate the Court’s treaty-based aggression-related jurisdiction provided for in Art. 15bis para. 3 Rome Statute with all its possible repercussions for both the Court, but also for the international legal system at large.

Provided there will be no more ratifications forthcoming between now and early 2017 (which however might still be the case given the fact that the process of ratifying the Kampala amendment is ongoing in some States), any such possible ‘activation’ of the Court’s jurisdiction would however depend on the question whether the recent submission by ‘Palestine’ of its instrument of accession of the Kampala amendment ought to indeed be counted towards the necessary quorum of 30 ratifications. Read the rest of this entry…

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Brexit and Hamilton’s King George: You’ll Be Back and What Comes Next

Published on June 28, 2016        Author: 

If I may be forgiven for lowering the level of conversation (yet again) after the excellent post by Jure Vidmar & Craig Eggett and Larry Helfer’s post over on Opinio Juris discussing many important legal issues – I just wanted to share a (rare) happy Brexitian thought. In Broadway’s smash-hit Hamilton, coming soon to London’s West End, King George sings a delectable British Invasion-y break-up song to his American soon-to-be-ex subjects (“You’ll Be Back”) and then follows up with two shorter songs on the same tune (one of them, “What Comes Next”, works magnificently here as you’ll see). Now, I concede that the analogy is imperfect, but humour me. Just picture in your head Donald Tusk or (better yet) Jean-Claude Juncker at his charming best, belting this out to Britain on behalf of the EU. Got that? Hold that in, take a breath. Then listen, read the lyrics below, and tell me you can’t feel the magic. Am I right or what?

 

Read the rest of this entry…

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