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Customary International Law as a Dance Floor: Part I

Published on April 14, 2014        Author: 

International lawyers’ thirst for argumentative freedom seems unquenchable. Nowhere is this more conspicuous than in the debate unfolding around the current work of the International Law Commission (hereafter ILC) on the identification of customary international law. Indeed, whilst the ILC has espoused a rather self-restrained approach so far, its study on the identification of customary international law has laid bare the prodigious emancipatory fervour at work outside the Palais des Nations. Particularly remarkable is the widespread presupposition that, in order to allow customary international law to serve the various agendas of ambitious 21st century international lawyers, one can simply toss out some of the elementary constraints around which the 20th century modern theory of customary international law had been shaped.

As this short note will argue, the emancipation from the traditional theory of customary international law at play in international legal scholarship, and unveiled by the current work of the ILC, is perplexing. This is certainly not because the traditional and modern theory of customary law should be redeemed. The inconsistency and deceitfulness of customary international law have long been proven. It is even astounding that such a frail gospel has been able to survive for so long. What is perplexing is that international lawyers may currently be replacing the duplicitous prison of customary international law with a dance floor where (almost) anything goes while still believing that this uncomplicated discourse-production technique can serve all their – sometimes extravagant – ambitions. It is contended in the following observations that this argumentative freedom is not only bound to be short-lived but may also end up depriving international lawyers of what has so far been a surprisingly useful discursive technique to create authority and make demands of the world.

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Announcements

Published on April 12, 2014        Author: 
1.  The Essex Transitional Justice Network and the Essex Business and Human Rights Project announce Summer School 2014: Settling Accounts: The Role of Business in Societies Emerging from Conflict and Authoritarian Rule, to be held 18-21st September 2014 (University of Essex, Colchester campus).  Building on the strong expertise at Essex on transitional justice and corporate accountability, the ETJN, together with the Essex Business and Human Rights Project (EBHR), will be running its III Transitional Justice Summer School between 18 and 21 September 2014. The summer school will consider the role of businesses in societies emerging from conflict and authoritarian rule, including different issues of corporate accountability that might arise in these contexts and mechanisms to address it. Experts in both corporate accountability and transitional justice will be provided with a forum to discuss specific topics such as project lending; debt and financial complicity, as well as litigation and advocacy strategies. Teaching staff includes: Professor Sheldon Leader, director of the Essex Business and Human Rights Project; Professor Sabine Michalowski, editor of the only book on the subject: Corporate Accountability in the Context of Transitional Justice; Professor Karen Hulme expert on human rights and the environment and winner of the ASIL price for her book War Torn Environment: Interpreting the Legal Threshold; Charles Abrahams, senior director of Abrahams Kiewitz Incorporated, a South African boutique law firm specializing in class actions, public interest law, and litigation in the area of business and human rights; Anneke Van Woudenberg, Senior Researcher at Human Rights Watch and Richard Meeran and Daniel Leader, Partners at Leigh Day and with extensive litigation in cases involving corporations and countries in transition. Further details are available here. For more information, contact etjnfr03 {at} essex.ac(.)uk.
2.  Confidence Crisis in Human Rights: Implications for the UK. Middlesex University, London 30 June to 4 July 2014. This 5 day intensive course will explore the challenges faced by the human rights regime, resulting from the mistrust towards the system voiced by countries which, like the UK in Europe or Brazil in the Americas, once helped to create and embrace the human rights machinery. The course will explore the ideologies and geopolitical conditions resulting in this evolution through the prisms of controversial topics dominating intergovernmental human rights agendas in Europe and worldwide, in particular: the rights to freedom of expression and freedom of religion;  the consequence for human rights of austerity measures and migration policies; the role of the UN Security Council  in conflict zones; and the difficulty to accommodate within the human rights framework emerging topics such as  the impact of activities undertaken by corporations in relation to development projects, and the protection of the environment. Further details are available here.
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The ILC’s Clever Compromise on the Validity of Reservations to Treaties: A Rejoinder to Marko Milanovic and Linos-Alexandre Sicilianos

Published on April 11, 2014        Author: 

In ‘The ILC’s Clever Compromise on the Validity of Reservations to Treaties’, Marko Milanovic and Linos-Alexandre Sicilianos say the ILC Guide to Practice on Reservations to Treaties strikes a clever compromise by holding on to a general regime on reservations to treaties and, at the same time, making human rights lawyers happy.  They also characterise the ILC Guide as a ‘Vienna Plus’ regime – indicating that the ILC Guidelines go beyond the rules of the VCTL and, in many respects, adapt the VCTL to present day conditions.

We agree that the new regime proposed is indeed a ‘Vienna-plus regime’. We also agree that the ILC special rapporteur on reservations, Alain Pellet, changed his views on objections to reservations within the context of international human rights law between when the study started in 1993 (Report of the ILC on the work of its forty-fifth session, para. 430) and ended in 2011 (Report of the ILC, sixty-third session). We, however, wish to highlight one point of reminder and one point of query with regard to the clever compromise.

First, the solution offered by the ILC report suggesting that an objective validity test under Article 19 comes prior to the subjective objections of states under Article 20 was originally proposed by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1999, pursuant to the Sub-Commission decision 1998/113 entitled “Reservations to human rights treaties”. Second, the ILC report goes further than current UN human rights law practice when it comes to the assessments of the human rights treaty bodies with regard to the invalidity of reservations. It takes a more radical step than current practice.

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The Use of ‘Do it Yourself’ Barrel Bombs under International Law

Published on April 10, 2014        Author: 

Among the continuing horrors reported from Syria, it is the use of certain weapons that time and again makes the headlines. While the use of chemical weapons led to an important response from the international community, in recent months attacks with so called ‘barrel bombs’ triggered an international echo. In its latest resolution on Syria the UN Security Council demanded all parties to cease ‘the indiscriminate employment of weapons in populated areas, including shelling and aerial bombardment, such as the use of barrel bombs’. UN Secretary General Ban called these weapons ‘horrendous’, France found that these weapons ‘sought to indiscriminately kill people’, and for the UK the use of these weapons against civilian areas constitutes ‘yet another war crime’ by the Assad regime. Different human rights groups, such as Human Rights Watch or the Syrian Network for Human Rights, report that the use of barrel bombs has caused high numbers of dead, the vast majority of which are civilians. There is no question that war crimes are committed in Syria, especially by the Assad regime. It is, however, less clear to what extent international law prohibits the use of barrel bombs in non-international armed conflicts, and whether their use constitutes a war crime.

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Mackerel War Called Off?

Published on April 9, 2014        Author: 

In November 2013 we wrote about a remarkable WTO dispute initiated by Denmark against the EU (The ‘Mackerel War’ Goes to the WTO). The case is remarkable because it has pitted one EU Member state against the other 27. Denmark, a member of the EU, brought the case “in respect of the Faroe Islands” which are part of Denmark, but not of the European Union.

The dispute concerns fishing quotas jointly managed by the Faroes, Iceland, Norway, Russia, and the EU under the Atlanto-Scandian Herring Management Arrangements. In annual negotiations, the parties decide on the division of the total allowable catch (TAC). In 2013 parties were unable to reach agreement, largely due to refusal to accommodate the Faroe Islands request for a larger part of the Total Allowable Catch (TAC).

When the Faroe Islands unilaterally decided to increase their catch, the EU responded by prohibiting import of herring and mackerel from the Faroe Islands. Denmark then brought a WTO dispute as well as arbitration proceedings under Annex VII of UNCLOS. In its request for consultations to the WTO, Denmark claimed the EU’s response to be in breach of GATT Article I:1, V:2 and XI:1. Denmark also reserved its rights under UNCLOS.

The parties have recently settled their dispute in respect of mackerel. On 12 March 2014, the Faroe Islands, Norway and EU concluded a joint arrangement for the conservation and management of the North East Atlantic mackerel stock for the next five years. The arrangement allocated 13% of the TAC between the parties (not including Russia and Iceland) to the Faroe Islands. This is a sizeable increase compared with the 5% that had been previously allocated to the Faroese, and the proportion is set to increase again next year.

The WTO dispute, however, is centered on herring, whereas the new agreement only deals with mackerel. Pending an agreement on herring, the WTO complaint and the UNCLOS Annex VII arbitration continue, and EU Regulation 793/2013, establishing sanctions against the Faroe Islands, remains in force. Read the rest of this entry…

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New Issue of EJIL (Vol. 25: No. 1) Published

Published on April 8, 2014        Author: 

The latest issue of the European Journal of International Law , the first of 2014, (Vol. 25, No. 1) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, as well as on EJIL’s Oxford University Press site. Readers can access those articles that are freely available from both places. As it happens, a good deal of the current issue is freely available even those readers without a subscription. Readers, with or without a subscription, can access Daniel Bethlehem’s article,  “The End of Geography: The Changing Nature of the International System and the Challenge to International Law” as well as responses to that piece by  David Koller and  Carl Landauer . Also freely available are the articles in the Joint Symposium with the International Journal of Constitutional Law (I*CON): Revisiting Van Gend en Loos. Subscribers have full access to the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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The Legal Framework of Future Military Operations: Inching Towards a More Strategic Approach?

Published on April 8, 2014        Author: 

In July 2013, the House of Commons Defence Committee launched an inquiry into the legal framework governing future operations of the British armed forces as part of its preparations for the next Strategic Defence and Security Review. The Committee has now published its findings in a report entitled ‘UK Armed Forces Personnel and the Legal Framework for Future Operations’.

The very fact that the Defence Committee saw the need to launch an inquiry into the legal framework governing military operations is remarkable. It demonstrates just how much legal considerations are shaping the current strategic and tactical landscape. It also lays bare a substantial degree of unease about the role that rules of law and legal processes play in an area as politically sensitive as the deployment of the armed forces.

Bearing in mind the complexity, contested nature and sheer scope of the topic, those who followed the inquiry closely may be forgiven for awaiting the publication of the Committee’s report with a certain sense of trepidation. How would the Committee deal with the extraordinarily broad remit of the inquiry? And what might lie at the bottom of Pandora’s box? These concerns turned out to be misplaced. The Committee must be commended for producing a balanced and informed report, no doubt assisted by the breadth of the expert evidence available to it. Above all, it is refreshing to see that the Committee succeeded in avoiding some of the untested assumptions and high drama which have been evident in the debate about the legal regulation of the armed forces.

Two main themes emerge from the report. The first is that the legal framework governing military operations is complex. This point may not come as a revelation to legal experts working in the field, yet acknowledging this complexity has very significant policy implications. As I have suggested in greater detail elsewhere (‘Deployed Operations and the ECHR’), legal complexity is here to stay and cannot be resolved for good. If all that we can achieve is a better balance of the competing considerations, we must focus our efforts on reducing the adverse effects of legal uncertainty on the armed forces, rather than chasing unrealistic attempts to simplify the law. The Committee’s recommendation to enhance the armed forces’ understanding of the law by providing them with better legal training, manuals and advice would go some way towards this end.

The second theme which emerges from the report is a strong sense that the Government must act more proactively and look at the legal framework for future military operations from a more strategic angle. Read the rest of this entry…

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Evidence in Environmental/Scientific Exceptions: Some Contrasts between the WTO Panel Report in China-Rare Earths and the ICJ Judgment in Whaling in the Antarctic

Published on April 7, 2014        Author: 

Rare earths imageTwo significant international decisions involving environmental protection claims were issued within the last few days of March 2014.  On 26 March 2014, a World Trade Organization (WTO) Panel issued its Report in China-Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (hereafter, China-Rare Earths), which held, among others, that “China may not seek to justify the export duties it applies to various forms of rare earths, tungsten, and molybdenum [pictured above left, credit] pursuant to Article XX(b) [exception for measures "necessary to protect human, animal or plant life or health"] of the GATT 1994.” (Panel Report, para. 8.11b)  On 31 March 2014, the International Court of Justice issued its Judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (hereafter, the Whaling case) where the Court held, among others, that “the special permits granted by Japan in connection with JARPA II [Japanese Whale Research Programme under Special Permit in the Antarctic Phase II] do not fall within the provisions of Article VIII, paragraph 1 [, of the International Convention for the Regulation of Whaling." [Judgment, para. 247(2)].  In China-Rare Earths, China sought to justify export duties that facially violated Paragraph 11.3 of China’s Accession Protocol to the WTO, by essentially alleging that these duties were justifiable as measures “necessary to protect human, animal, or plant life or health” within the purview of Article XX(b) of GATT 1994.  In the Whaling case, Japan sought to justify JARPA II as a programme “undertaken for purposes of scientific research and is therefore covered by the exemption provided for in Article VIII, paragraph 1, of the [International Convention on the Regulation of Whaling].” (Judgment, para. 49).  While both decisions contain rich analyses of numerous issues of treaty interpretation, one can also look at significant methodological contrasts between the ICJ and the WTO Panel on the treatment of scientific evidence and assignment of evidentiary burdens for the environmental/scientific issues in each case.

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Announcements: The UK and the ECHR Conference at Leicester; EJHR Anniversary;

Published on April 5, 2014        Author: 

1. The UK and European Human Rights: A Strained Relationship? College Court, Leicester, 23-24 May 2014. This two-day conference will focus upon the topical and contentious issue of the relationship between the UK and the European systems for the protection of human rights. This will encompass both the UK’s relationship with the European Court of Human Rights in Strasbourg and the additional layer of human rights protection through the European Union. It seeks to contribute to on-going debates in the UK, and elsewhere in Europe, about the relationship between the European Court of Human Rights and national courts, which at times seems to be (perceived as) particularly antagonistic in the UK.  The conference will bring together judges, barristers and solicitors, politicians, representatives of NGOs and the media, and academics in the field. More information here.

2. The European Journal of Human Rights was launched in early 2013 as a response to the new pathways through which human rights evolve. International treaties and new laws continue to matter. But the development of human rights has become, first and foremost, the result of a dialogue between courts, at all levels — international, regional and national –, and other human rights bodies, who contribute to shape the “common law” of human rights in an organic, networked fashion. The Journal therefore aims to encourage doctrinal thinking and dialogue across legal venues, highlighting how concepts and ideas migrate from forum to forum, permanently reshaping human rights law. Under the supervision of Professor Olivier De Schutter, its Editor-in-chief and currently the UN Special Rapporteur on the right to food, the Journal publishes high quality review articles which are systematically submitted to a “double-blind peer-review” mechanism. For more on the Journal, which welcomes submissions either in French or in English, please visit the website — or write to bruno.hardy {at} uclouvain(.)be.

3. The Human Rights Centre at the University of Essex is holding a summer school on Human Rights Research Methods at its Colchester campus from 30 June to 5 July 2014.  Methodology has a direct bearing on the strength, persuasiveness and legitimacy of human rights research findings and their impact on policy and practice.  Strong methodology is also a central requirement in order to secure funding.  Yet, we often focus on the substance of human rights without sufficient attention to the methods used.  This summer school seeks to fill that gap by providing the core methods and skills needed to carry out human rights research whether documenting human rights violations, drafting human rights reports and articles or preparing funding bids.  Participants will learn everything from interviewing victims to researching in repressive societies to becoming ‘quantitatively literate’ in human rights research.  The teaching team includes anthropologists, lawyers, political scientists, psychologists and sociologists, three current and former UN Special Rapporteurs, a member of the UN Committee against Torture, the Interim Director of Law and Policy at Amnesty International and donors, all with significant experience on the theory and practice of human rights.  It is an ideal course for human rights professionals working in NGOs, international organisations and government, academics and postgraduate students.  To find out more, visit: www.essex.ac.uk/hrc/summerschool.

4. The Human Rights Centre at the University of Essex has launched the Essex Human Rights Centre Blog which is dedicated to the inter-disciplinary discussion of the theory and practice of human rights. The blog is intended to provide a forum whereby practitioners and academics from different disciplines can learn about each other’s research, work, and activities. By enabling the discussion of contemporary and enduring human rights challenges from the perspective of different disciplines and fields of expertise, it hopes to facilitate the identification of new and innovative approaches to the challenge of securing human rights: it is hoped that a multi-disciplinary forum will promote inter-disciplinary thinking. For more information, please visit the welcome post.

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The International Society for Public Law – Call for Papers and Panels

Published on April 4, 2014        Author: 

On 26-28 June 2014, in Florence, the European University Institute and NYU-La Pietra will host the Inaugural Conference of the newly established International Society of Public Law (ICON•S).

We invite all our readers to submit proposals for either individual papers, or even more ambitiously, proposals for panels which, if selected, will be presented at the Inaugural Conference. Full details, modules for submitting proposals and for registering for the conference may be found at the society’s website. Registration for the Inaugural Conference includes the first annual membership fee in ICON•S and a free one-year online subscription to ICON, the International Journal of Constitutional Law.

  • Why create a new international learned society – are there not enough already?
  • Why public law – if we typically teach Constitutional Law, Administrative Law, or International Law (and now the much à la mode Global Law)?
  • And why does the word “comparative” not feature in the title of the new Society? Surely if we bring together constitutionalists from, say, Japan and Canada or administrative lawyers from Italy and Turkey – their common language will be Comparative Law?

The initiative to create an International Society of Public Law emerged from the Editorial Board of I•CON – the International Journal of Constitutional Law. For several years now I•CON has been, both by choice and pursuant to the cartographic reality of the field, much more than a journal of comparative constitutional Law. I•CON has expanded its interests, range of authors, readers, Editorial Board members and, above all, issues covered, to include not only discrete articles in fields such as Administrative Law, Global Constitutional Law, Global Administrative Law and the like, but also – and increasingly so – scholarship that reflects both legal reality and academic perception; scholarship which, in dealing with the challenges of public life and governance, combines elements from all of the above with a good dose of political theory and social science. That kind of remapping of the field is apparent also in EJIL. Its focus remains of course international law, but the meaning of international law today will often include many elements of the above. Read the rest of this entry…

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