magnify

International Law and the Construction of the Liberal Peace: An Introduction

Published on November 14, 2014        Author: 

I am delighted that the editors of EJIL: Talk! have agreed to host a discussion of my recently published monograph, which is entitled International Law and the Construction of the Liberal Peace and published by Hart. I am especially delighted that Professor Jean d’Aspremont, Professor Greg Fox and Professor Brad Roth have agreed to act as discussants. These scholars have been at the forefront of the debate on the relationship between international law and liberal democracy and, as is apparent from my book, their work has had a significant impact upon the way in which I understand international law and international relations. It is therefore an honour for me that they have taken the time to critically engage with the arguments that I pursue in the book. I intend to briefly outline the main ideas and arguments that are developed in the book and I do this with the objective of setting the scene for the discussion that follows.

  Read the rest of this entry…

Print Friendly
 

Discussion of Russell Buchan’s International Law and the Construction of the Liberal Peace

Published on November 13, 2014        Author: 

http://www.hartpub.co.uk/coverimages/9781849462440.jpgThis week and next we will be hosting a discussion of Russell Buchan’s book International Law and the Construction of the Liberal Peacerecently published by Hart. The book was awarded the 2014 Lieber Prize by the American Society of International Law for an outstanding monograph in the field of the law of armed conflict.

Dr Russell Buchan is a senior lecturer in international law at the University of Sheffield. He has published in leading academic journals in the field of public international law, with a focus on collective security, international humanitarian law and cyber security. Dr Buchan sits on the editorial board of the Journal of the Use of Force in International Law and the International Community Law Review. Dr Buchan is Co-Rapporteur for the International Law Association’s Study Group on Cybersecurity, Terrorism and International Law.

Russell’s book will be discussed, next week, by Brad Roth, Jean d’Aspremont, and Greg Fox. Tomorrow, Russell will start the discussion off with an introduction, and will conclude it next week with a response to the three discussants. We are grateful to all of them for their participation.

Print Friendly
 

The Dust Has Not Yet Settled: The Italian Constitutional Court Disagrees with the International Court of Justice, Sort of

Published on November 12, 2014        Author: 

As Riccardo Pavone surmised last March, the ICJ judgment in Jurisdictional Immunities (here) has not been the last word in the matter of reparations for the forced labour of Italian prisoners of war in Germany. As reported by Christian Tams (here), the Italian Constitutional Court (here) has found the provisions adopted by Italy to implement the ICJ’s judgment contrary to the Italian Constitution, more precisely to the guarantee of access to a court. Those provisions had been meant to oblige Italian courts to follow the judgment of the ICJ, which required those courts to extend jurisdictional immunity to a foreign State (ie Germany) also for actions which constitute war crimes and crimes against humanity violating inviolable human rights.

Read the rest of this entry…

Print Friendly
 

The United States and the Torture Convention: A Memo from Harold Koh

Published on November 11, 2014        Author: 

On Wednesday and Thursday this week, the United States will appear before the United Nations Committee Against Torture for a discussion of the United States’ Third to Fifth Periodic Reports under the Convention Against Torture and Other Cruel and Degrading Treatment. If the size and membership of the United States’ delegation to the Committee is anything to go by, the US is taking the session very seriously indeed. The US delegation includes high level representation from the State, Justice, Defence, Homeland Security and other Departments of the Federal Government as well as representatives of states. The dialogue between the US delegation and the Committee will be webcast here.

One key issue that will come up in the discussion is whether the US accepts that the Convention applies to conduct  of its officials and agents beyond its territory. In the list of issues that the Committee presented to the US in advance of the submission of its report (a list that was prepared five years ago now!), the Committee asked the US to:

“Please provide updated information on any changes in the State party’s position that the Convention is not applicable at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and is not without prejudice to the provisions of any other international instrument, pursuant to article 1, paragraph 2, and 16, paragraph 2, of the Convention.”

In its report, the United States was evasive on the question of the extraterritorial application of the Convention. It stated:

“6.  . . . It should be noted that the report does not address the geographic scope of the Convention as a legal matter, although it does respond to related questions from the Committee in factual terms.”

However, it then went on to note that:

“13. Under U.S. law, officials of all government agencies are prohibited from engaging in torture, at all times, and in all places, not only in territory under U.S. jurisdiction. Under the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-163, 42 U.S.C. 2000dd (“No individual in the custody or under the physical control of the U.S. Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment”), every U.S. official, wherever he or she may be, is also prohibited from engaging in acts that constitute cruel, inhuman or degrading treatment or punishment. This prohibition is enforced at all levels of U.S. government.”

Thus, while the US was indicating that US law and policy forbid torture by US officials wherever committed, it failed to acknowledge that the treaty obligations went this far. The US delegation will no doubt be asked to clarify its position before the Committee. A recent report in the New York Times indicates that there is an internal debate in the US administration about whether to abandon the US’ previous position that that provisions of the Convention Against Torture are restricted to acts on US territory. Apparently, while State Department lawyers are  pushing for a change in this position,

“military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture . . .”

In a recent intervention in this debate, Harold Koh, Sterling Professor of International Law at Yale Law School and, Legal Adviser to the US State Department in first term of the Obama Administration, last week, wrote a “Memo to the President: Say Yes to the Torture Ban,” in Politico Magazine. Read the rest of this entry…

Print Friendly
 

Sleepwalking Again: The End of the Pax Americana 1914-2014, Part III

Published on November 10, 2014        Author: 

This is Part III of the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014. Parts I and II were published last week. The full version will be published in EJIL in a subsequent issue.

It is time to cry “Wolf” – since Europe finds itself with its basic, most fundamental, if often unstated, assumptions of security evaporating. Of course it would be fanciful, undesirable and unnecessary to imagine that the Pax Americana could be replaced by some form of Pax Europea. Unnecessary because the USA is not disappearing. But the evident  weakening of its constraining and restraining power — the Authoritativeness Deficit — has to be made somehow whole.

So what role for Europe? Surely it does not mean and should not mean that Europe would simply fill in the American gaps and play a slightly or significantly more sonorous second fiddle to the USA by, for example, making a heftier contribution to NATO. It means, in the first place, that Europe has seriously to reassess its own self understanding of its global responsibilities. Though this might seem a platitudinous and hence easy to achieve step, it is arguably the most difficult and crucial if, indeed, it is not to remain platitudinous and would represent a veritable shift in political consciousness.  In the second place it has seriously to upgrade its autonomous Global Authoritativeness, its own constraining and restraining power and from that, and in that, position interact with the USA and the rest of the world.  Not a superpower, but an indispensable power. It is a tall order but  setting for a moment politics aside, not an impossible one, since the actual toolkit does not need to be created ex nihili.

Sure, militarily, Europe’s credibility is risible, and has been so for long. Think Bosnia and Kosovo, think even Libya. But it is in the paradoxical position that militarily, the European whole is smaller than the sum of the parts. This well known paradox, the result of national interests, jealousies, pride, inertia not to say pettiness, is startling, but it is also a silver lining since there is a huge amount of already existing capacity simply terribly badly utlized. Europe’s economic clout, as a trading bloc, is second to none, greater than most and potentially a formidable tool of foreign policy and security, glimmers of which could be witnessed as Europe finally began to get its act together in the Ukraine crisis, but therein lies the rub – its ability to get its act together. Politically, too, one does not start from zero. United (when it is) in its rich diversity offers a veritable European foreign policy an interesting, even unique potential of foreign action utilizing historical ties and connections of its various Member States as points of entry, bridge and alliance building towards friend and foe alike and the ability to converse with nuance and in multiple political idioms. Morally, both nationally and in the form of the European Union Europe has effectively shed its colonial baggage and it does not carry nearly the weight of suspicion with which US foreign policy is encumbered. Effectively melded together and used with the kind of adroitness which some of the individual Member States are renowned for, simply underscores the potential of existing capacities even before any serious upgrading is to take place. One is not starting from Zero. Read the rest of this entry…

Print Friendly
Filed under: Editorials, EJIL, European Union
 

ICJ Elections 2014: UN General Assembly and Security Council Elect four Judges to the ICJ But Fail to Agree on a Fifth, Again!

Published on November 10, 2014        Author: 

Last week Thursday (Nov. 6), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see ICJ Press Release). Judges Mohamed Bennouna (Morocco) and Joan E. Donoghue (United States of America) were re-elected to the Court. In addition, Professor James Crawford (Australia) and Kirill Gevorgian (Russian Federation) were elected as new members of the Court. There are five vacancies on the International Court of Justice every 3 years, including this year. However, for the second time in a row in regular elections for judges at the ICJ, the two organs of the UN charged with electing the judges have been unable to agree, at least initially, on the list of judges elected to the Court (arguably, the third time in a row if one includes the situation in the 2008 elections described below). This year, as was the case in the last regular elections in 2011 (on which see previous posts here and here), the two organs have suspended voting until a later date, after several rounds of balloting in each organ failed to produce a fifth candidate that was elected by absolute majority of both organs (see UN Press Releases here and here). The General Assembly and the Security Council will meet on November 17 to resume voting.

Under Articles 4, 8 and 10 of the Statute of the ICJ, ICJ judges are elected by an absolute majority of the General Assembly and the Security Council. An absolute majority in the Security Council for the purpose of elections to the ICJ has been interpreted in practice as meaning eight votes, rather than the nine required for other Council decisions (see Opinion of the UN Office of Legal Affairs 1984 Juridical Yearbook 173, at 175, para. 8, also available here). Also, under Article 10(2) of the Statute, no distinction is drawn between permanent and non-permanent members (i.e there is no veto).  The two organs meet separately, but concurrently, to conduct ICJ elections. Once five have obtained an absolute majority in one organ, the President of that organ will notify the President of the other organ of the names those candidates. Although each state member can only cast 5 votes in each organ it is mathematically possible, and in fact often happens, that more than five candidates will obtain an absolute majority in one organ. [For example, there 75  votes available in the SC – 15 states  x 5 votes each. If there are 7 candidates who only need 8 votes each, all 7 can obtain 8 votes, which only totals 56 of the available votes.]  It is the practice of both organs that only when five candidates have obtained an absolute majority is the result to be communicated to another organ. A proposal to select the five with the highest votes was previously rejected in the practice of both organs  [see Hogan, “The Ammoun Case and the Election of Judges to the International Court of Justice”, (1965) 59 American Journal of International Law 908]. When 6 or more candidates obtain a majority, the ballot is rerun with all candidates.

In the elections held on Thursday Nov 6, the General Assembly conducted seven rounds of balloting and it was only in the seventh round that only 5 candidates obtained an absolute majority with Patrick Robinson from Jamaica (currently a Judge and former President of the International Criminal Tribunal for the former Yugoslavia) receiving an absolute majority, in addition to the four other candidates mentioned above. However, in the Security Council, where four rounds of voting took place on Thursday until only five candidates received a majority of votes, it was Susana Ruiz Cerutti, the current Legal Adviser to the Ministry of Foreign Affairs of Argentina and former Foreign Minister of that country, who obtained a majority in addition to the four candidates named in the first paragraph. In the seventh round of voting in the GA, she obtained only 2 votes less than the majority required in that body, while Mr Robinson received only 1 vote less than required for a majority in the Security Council. Read the rest of this entry…

Print Friendly
 

Announcements: EJIL:Live!; Lecture on Refugee Law, Queen Mary London; Lecture on WTO in London; Call for Papers on International Law Scholarship

Published on November 8, 2014        Author: 

1) In case you missed it: EJIL has made available a special audio podcast EJIL:Live! ExtraThis audio episode of EJIL:Live! Extra features a discussion between Guy Sinclair, Dapo Akande and Marko Milanovic of the English High Court decision in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB). That decision deals with detention in non-international armed conflicts and was previously discussed on the blog here, here, here and here.

2) Queen Mary Law School, University of London, would like to invite you to the forthcoming Inaugural Lecture by Professor Guy S Goodwin-Gill (All Souls College, Oxford): “The Continuing Relevance of International Refugee Law in a Globalised World”, launching the new LLM programme in Immigration Law. The event will take place on Monday 24 November 2014, from 18.00 to 20.00, in Room 210, at the Law Building (Mile End Campus), and will be followed by a drinks reception. Attendance is free, but prior booking is required via the Queen Mary Eventbrite page.

3) The City Law School announces the first ‘Law Meets Practice’ Lecture organized under the aegis of the Jean Monnet Chair in European Law. The topic will be ‘The paradox of multilateralism and the WTO – the role of the EU in the WTO’. The speaker will be Mr Angelos Pangratis, Ambassador and Permanent Representative of the EU to the World Trade Organisation, and the lecture will be chaired by Panos Koutrakos (Professor of EU Law and Jean Monnet Chair in EU Law). It will take place at the City  University London, College Building, St John Street, Room A130 on Tuesday, 2 December 2014 at 18:00. The event will be followed by a wine reception. This is the first in a series of events organized under the aegis of the Jean Monnet Chair in European Law, awarded by the European Commission. Attendance is free. Sign up and find more information here. For queries, please contact Peter Aggar (Peter.Aggar.1 {at} city.ac(.)uk).

4) Call for Papers – Leiden Journal of International Law Symposium on ‘The Changing Role of Scholarship in International Law’. The Leiden Journal of International Law launches a call for papers for its symposium ‘The Changing Role of Scholarship in International Law’ which will take place on 11 May 2015 at The Hague. The Keynote will be delivered by Martti Koskenniemi. The event is organized by Ingo Venzke, Senior Editor of the International Legal Theory Section, and the LJIL Editors-in-Chief Carsten Stahn and Eric De Brabandere. The Leiden Journal of International Law has started to reflect on the changing role and function of scholarship in International Law. The role and concept of scholarship, including its foundations, methods and limits are in transition. This development opens up a wide array of questions and debates that are likely to remain at the forefront of academic thinking and research agendas in the next decade(s). The symposium presents an excellent opportunity to deepen discussion and reflection. It would present an occasion to reflect on the future of legal scholarship from different perspectives from within and beyond the Leiden Journal. The call for papers is available here.

Print Friendly
Filed under: Announcements and Events
 

Domesticating the Law of Immunity: The Supreme Court of Canada in Kazemi v Iran

Published on November 7, 2014        Author: 

International lawyers typically think that when a case deals with a matter of international law, once you know the position under international law, then this will give you the answer. Unfortunately, before domestic courts, that is not always the case. Late last month, the Canadian Supreme Court issued its judgment in Kazemi Estate v. Islamic Republic of Iran [2014] SCC 62 (the Quebec Superior Court Judgment was discussed on the blog here). The case, following on the Ontario Court of Appeal’s earlier judgment in Bouzari, serves as a stark reminder that the application of international legal principles in domestic proceedings will frequently be governed or mediated by domestic legislation, which often reflects domestic priorities in addition to international principles. The role that international law should play in such cases, as either a source or a means of interpretation, may be contested. The Kazemi v Iran Judgment is the latest instalment in a series of important domestic court decisions on the law of State immunity.

Background

Ms. Zahra Kazemi was a Canadian citizen and freelance photographer and journalist who died in custody in Iran in 2003, following her detention, torture and sexual assault in prison The authorities refused to return her body to Canada and buried her in Iran. Although a domestic investigation reported links between the Iranian authorities and her torture and death, only one person was charged and he was acquitted after a trial which lacked transparency.

Seeking justice for his mother’s death, Ms. Kazemi’s son, Mr. Stephan Hashemi, sued the Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei (Iran’s Head of State), Mr. Mortazavi (Chief Public Prosecutor of Tehran), and Mr. Bakhshi (former Deputy Chief of Intelligence at the prison where Ms. Kazemi was detained), claiming damages for his mother’s suffering and death, and for the emotional and psychological harm that this caused him. Predictably, the defendants sought to dismiss the motion based on claims of state immunity, which is implemented in Canada by the State Immunity Act (SIA). This challenge ultimately reached the Supreme Court of Canada, Read the rest of this entry…

Print Friendly
 

Sleepwalking Again: The End of the Pax Americana 1914-2014, Part II

Published on November 6, 2014        Author: 

This is Part II of an excerpt from the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014.  Part I was published yesterday. The full version will be published in EJIL in a subsequent issue.

Note: This post has been updated to reflect a later version of the text.

Though one could call into question the wisdom or propriety of a whole variety of American actions of the past century, there was a justified sense that America was a guarantor of a kind of stability. In the most primitive sense this was the Pax Americana.

No more. There are, of course, no sharp temporal lines – an assassination in Sarajevo was a signpost, not a real cause. Still, 2014 is in contention to be judged by history as the watershed period, the culmination of a structural process signaling the demise of the Pax Americana.

We might think that we have been here before: Periods of American economic crisis, isolationism and lack of nerve have come and gone during the last hundred years. But my argument is that the current circumstance is different, at least in two unprecedented (if connected) ways.

First, we are actually not experiencing today American Isolationism and withdrawal, quite the contrary. In some respects we are witnessing heightened American engagement: Resetting relations with Russia, the Turn to Asia, frenetic efforts in the Israel-Palestinian context, direct and indirect activity surrounding events in Egypt and elsewhere in the Arab Spring, the pre withdrawal Surge in Iraq and ongoing commitment in Afghanistan and now with ISIS, the determined cultivation of Turkey, vocal diplomacy as regards sanctions against the Ukraine, the TTIP as a strategic asset, constructive and cooperative American involvement in the Trade Facilitation Agreement and a renewed interest in Africa to mention but some aspects of contemporary US foreign engagement.

What is different is the cumulative impression of loss of American constraining power and influence. There is a growing discrepancy between engagement and results. Just go down list: Relations with Russia are at Cold War levels without the containment effect; Chinese bellicose posture vis-à-vis  Japan and in the South China Sea are at a level one would not have imagined a mere decade ago; the US clamorous humiliations (no other word is strong enough) in reigniting the Israeli-Palestinian Peace Process and having any impact whatsoever on the bloody Gaza conflagrations; relations with Egypt far more complex than ever before; the collapse in Libya and general American impotence to predict or shape the post Spring events; Iraq in disarray with America scurrying to seek alliances with yesteryear’s enemies in the face of the true Syrian debacle (and a no-one-dare-to-say-what-just-about-everyone-is-thinking: the good-old-days-of-the-secular-Saddam-regime); the American would-be and well deserved dividend in Afghanistan all but written off; a Turkey in which America has lost even the semblance of an ally; the inability of the US to have a united front with the EU on sanctions – it took the Malaysia airline catastrophe to bring Europe around, not American pressure; the TTIP in the doldrums its requiem quietly being composed; the collapse (temporary one hopes) of the Bali Trade Facilitation Agreement (itself a fig leaf to the failed Doha) at the hands of India, American pressure and diplomacy notwithstanding; and America in Africa? How do you spell that in Chinese? Read the rest of this entry…

Print Friendly
Filed under: Editorials, EJIL
 

Sleepwalking Again: The End of the Pax Americana 1914-2014, Part I

Published on November 5, 2014        Author: 

This is Part I of an excerpt from the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014.  Part II will be published tomorrow. The full version will be published in EJIL in a subsequent issue.

Note: This post has been updated to reflect a later version of the text.

I think it is difficult to contest that the most important State player in world affairs over the last one hundred years – and consistently so over this period — has been the United States of America. WWI – into which, to use Christopher Clark’s justly celebrated book, we Sleepwalked – marks a useful starting point. It is not only the fairly important  role America played in bringing  WWI to an end that signals the beginning of this era but the no less important role it played in shaping the aftermath. Wilson’s 14 points were considered at the time “idealist” by some of the “Old Powers.” But by dismantling the Ottoman Empire through the principle of Self Determination (not at that time a universal legally binding norm) the scene was set for the demise, a mere generation later, of all other colonial empires and the truly decisive reshaping of the balance of power in the second half of the Century. The US played an equally cardinal role in ideating and realizing the United Nations Organization and the Universal Declaration of Human Rights in the wake of WWII – two lynchpins of our current world order.

That opening gambit to the American century is emblematic of  the entire Pax Americana epoch: American action in the international sphere has frequently been driven by a strong dose of idealism (to be sure sometimes misguided) mixed in with the normal self-interest which is the usual stuff of international relations.

I know that the various schools of ‘Realism’ tend to pooh-pooh any deviation from interest analysis in international relations. Generally speaking I find the emphasis on interest/power as an explanatory device to human affairs, to the exclusion of almost all other motivations, as laughably reductionist in international affairs as it is in other domains of human action. At its extreme it is rooted in a vision which denies in principle the possibility of altruism, a position which makes a mockery of the tragic complexity of the human condition. This is as true, even if to some both counter intuitive and discomforting, in the case of the conduct of American foreign policy.

There may be an irony in using the expression Pax Americana.  Read the rest of this entry…

Print Friendly
Filed under: Editorials, EJIL