magnify

Announcements: New Episode of EJIL:Live!, Calls for Papers on Migration and Human Rights and Objects of International Law, UN Audiovisual Library, Conference on Italy’s Practice of International Law

Published on November 22, 2014        Author: 

1.  A new episode of EJIL:Live! was published this week. Episode 3 of EJIL: Live! features a fireside chat between the Editor-in-Chief of EJIL, Prof. Joseph Weiler and Prof. Jan Klabbers of the University of Helsinki, whose article “The Emergence of Functionalism in International Institutional Law: Colonial Inspirations” appears in Vol. 25, Issue 3. The interview was recorded at the European University Institute in Florence, Italy. Video and audio are available here.

2.  The 16th Annual Student Human Rights Conference, Migration and Human Rights: Perception v Reality, will be convened by the University of Nottingham Human Rights Law Centre.  The conference will be held on Saturday 7 March 2015. This year, the conference committee will be welcoming papers that discuss the themes outlined in the attached Call for Papers that identify current issues relating to the issue of migration. The deadline for submission of abstracts is Thursday 11 December 2014. If you have any queries, please do not hesitate to contact the Student Conference Committee on humanrightsconference {at} nottingham.ac(.)uk. Read the rest of this entry…

Print Friendly
Filed under: Announcements and Events
 

Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part II

Published on November 21, 2014        Author: 

This is Part II of a two-part post. Read Part I here.

Res. 2178 is no basis for criminal sanctions

Resolution 2178 is not in itself the basis for criminalising the behaviour it seeks to suppress. On the contrary, it resembles the classic suppression conventions, i.e. international treaties imposing the obligation on contracting parties to prohibit individual forms of conduct in their national law and, where applicable, to criminalise and punish them.

So no foreign fighter-suspect could be tried and sentenced on the legal basis of Res. 2178 alone. But the reason is not, I submit, that a Security Council resolution could never – from the perspective of international law − function as a “lex” in the sense of the principle nulla poena sine lege. The reason is that the “lex” here does not in itself explicitly establish the crime, but on the contrary explicitly asks states to do to, through their domestic criminal law. Res. 2178 makes it amply clear in its wording that it does not intend to establish the criminal offence directly. It may well be that under the domestic law of some countries, the understanding of nulla poena is stricter. However, if we want to uphold a functioning system of global governance, states and scholars must develop an “internationalised” principle of legality that need not consist only in the lowest common denominator but which is informed by values of global constitutionalism.

Previous Security Council resolutions directly addressing individuals

Resolutions combatting terrorism and piracy

Previous Security Council resolutions had not imposed any obligations on terrorists or terror-suspects as such; they addressed only states (for instance, res. 1624 (2005), para. 1(a); res. 1540 (2004) on weapons of mass destruction). The same is true of all UN Security Council resolutions on piracy (e.g., UNSC res. 1838 (2008)). Read the rest of this entry…

Print Friendly
 

Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part I

Published on November 20, 2014        Author: 

This is Part I of a two-part post. Read Part II here.

Introduction

At a summit meeting of 24 September in which over 50 government representatives were heard, the Security Council unanimously adopted Resolution 2178 (2014) which foresees measures to contain the travel of and support for persons intending to participate in terror acts, notably against the background of the rise of the group “Islamic State in Iraq and the Levant” (ISIL) and the Al-Nusra front and other affiliates of Al-Qaida.

Resolution 2178 “reaffirms” what previous resolutions since 9/11 had found, namely that “terrorism [normally committed by natural persons] … constitutes one of the most serious threats to international peace and security” (preamble first indent; see previously, e.g., UNSC res. 1368 (2001)). In preamble indent 12, the Council defines a “new threat”, namely the “foreign terrorist fighter threat” which “includes, among others, individuals supporting acts or activities of Al-Qaida and its cells”.

Most paragraphs of the res. 2178 are, in their structure, not novel. They oblige states to adopt measures, and “ensure in their domestic laws” (para. 6) to suppress, combat, prosecute, and penalise the recruiting, organising, transporting, and equipping of individuals travelling for the purpose of perpetrating terrorist acts, e.g. in paras 2, 5, 6, 8. The obligations to criminalise certain behaviour seem, however, quite far reaching as also pointed out by Kai Ambos.

One interesting feature of res. 2178 is that it directly addresses individuals: Operative para. 1 “demands that all foreign terrorist fighters disarm and cease all terrorist acts and participation in the conflict”. The three interrelated questions discussed in this post are whether res. 2178, firstly, creates binding international legal obligations for individuals themselves; secondly, whether (some of) the resolution’s provisions are directly applicable in the domestic order of the UN Member states; and thirdly, whether the non-observance of these individual obligations constitute a crime by virtue of the resolution itself.

International individual obligations flowing from Res. 2178?

The question is whether Res. 2178 is able to impose legally binding international obligations on the individuals addressed. Is the resolution itself the legal basis for an obligation of “foreign terrorist fighters” to desist from forging identity papers, to desist from travelling to the combat field of ISIS, to recruit volunteers, and of course to refrain from committing terrorist acts, and the like? Read the rest of this entry…

Print Friendly
 

EJIL: Live! – Episode 3

Published on November 19, 2014        Author: 

A new episode of EJIL: Live!, the Journal’s official podcast, is now available. Episode 3 of EJIL: Live! features a fireside chat between the Editor-in-Chief of EJIL, Prof. Joseph Weiler and Prof. Jan Klabbers of the University of Helsinki, whose article “The Emergence of Functionalism in International Institutional Law: Colonial Inspirations” appears in Vol. 25, Issue 3. The interview was recorded at the European University Institute in Florence, Italy. Video and audio available here.

Print Friendly
 

Response to Roth, D’Aspremont and Fox

Published on November 19, 2014        Author: 

I formulated the central thesis of this book at the height of the ‘liberal confidence’ that was witnessed during the Bush and Blair administrations. At that time it seemed that a new world order was emerging and that a serious attempt was underway to fundamentally reorganise the political and legal structure of the world order. In short, what we were witnessing was a clash of normative orders between associations of states that I refer to as the international society and the international community.

Obviously, matters have become much more complex in recent years – in light of the rise of international terrorism, the global economic downturn, the emerging multipolar world etc – and much of the hype and hubris that once surrounded Bush and Blair’s ‘liberal confidence’ during the 1990s has now substantially faded. But I argue that although the liberal project has changed in form it has not changed in substance, and I continue to stand by my central thesis – namely, that the contemporary world order comprises opposing normative orders (the international society and the international community) and that it is the interface between these associations that provides a convincing explanation for why violations of international peace and security occur.

Read the rest of this entry…

Print Friendly
 

Patrick Robinson of Jamaica Elected to the ICJ

Published on November 18, 2014        Author: 

Judge RobinsonLast week, I wrote about the elections held last Monday, by the United Nations General Assembly and Security Council, to fill 5 upcoming vacancies on the International Court of Justice  As I reported, both bodies were able to agree on the election of four judges, but were unable to agree on the filling of the fifth vacancy. In several rounds of balloting over two days, Patrick Robinson from Jamaica (currently a Judge and former President of the International Criminal Tribunal for the former Yugoslavia) consistently received a majority in the General Assembly However, 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 the Security Council. On Tuesday last week, as noted by Ambassador (and Professor)Kriangsak Kittichaisaree in his comments to my previous post , Argentina withdrew the candidacy of Susana Ruiz Cerutti.

Yesterday, the General Assembly and the Security Council, again meeting separately but concurrently, elected Patrick Robinson as Judge of the ICJ. He obtained all 15 votes in the Security Council and 185 votes in the General Assembly. As previously noted by Ambassador Kittichaisaree in his comments to my previous post , the election of Judge Robinson means that 4 out of the 5 judges elected or reelected to the ICJ, in this election cycle, are or were members of the International Law Commission. By my calculation practically half of the judges of the ICJ (in its new composition starting in February 2015) will have been members off the ILC prior to election to the ICJ.  Judge Robinson’s elections also adds to the growing number of ICJ judges with prior international judicial experience – a trend that I noted three years ago (here and here).

Print Friendly
 

A Comment on Russell Buchan’s “International Law and the Construction of the Liberal Peace”

Published on November 18, 2014        Author: 

Few would deny the momentous changes underlying Russell Buchan’s thesis about an emerging “international community.” After the end of the Cold War, international law came to accept ideas of governmental legitimacy glaringly at odds with the regime-agnosticism of earlier eras. New and newly robust norms came to address both how national leaders are chosen (the legitimacy of governments themselves) and the permissible range of governmental actions toward citizens (the legitimacy of government policies, primarily as they affect human rights). These norms clearly pointed to a liberal democratic mode of governing.

Where Buchan parts company with previous analyses of these phenomena, including my own, is his view that these changes reveal an entirely distinct “international community” acting within the broader “international society.” My comments on his fascinating new book will suggest this hypothesis is unnecessary to explain these revolutionary developments and carries with it a substantial risk of both reductionist reasoning and undermining the very norms he examines.

Read the rest of this entry…

Print Friendly
 

Democracy and International Law according to Russell Buchan: Prescribing under the Guise of Explaining?

Published on November 17, 2014        Author: 

Russell Buchan’s Lieber Prize-winning book entitled International Law and the Construction of the Liberal Peace (hereafter The Construction of the Liberal Peace) rests on a courageous enterprise. Indeed, it takes a lot of courage, especially given the dominant cynical mindset to which many international lawyers have succumbed, to seek to vindicate the democratic peace theory and, with it, the democratic legitimacy thesis. Buchan’s The Construction of the Liberal Peace also stands out for being elegantly written, aesthetically designed and conceptually strong as well as for denoting an impressive knowledge of international law and international relations theory.

Read the rest of this entry…

Print Friendly
 

International Law’s Enemy Within: Buchan’s “International Community” as Rival to the Positive Legal Order

Published on November 17, 2014        Author: 

In a 2012 essay honoring the work of the late Pieter Kooijmans, I observed: “Going forward, institutions purporting to implement international legal norms face a fundamental dilemma: Will they construe international law as a framework for accommodation among bearers of diverse conceptions – both liberal and non-liberal – of internal public order, or will they construe it as a device for imposition of a predominant vision of public order?”

Anyone who believes that I put the choice too starkly needs to read Russell Buchan’s Lieber Prize-winning book, International Law and the Construction of the Liberal Peace. In it, Buchan makes the case that an “international community” of exclusively liberal states operates within international institutions to supplant a more ideologically inclusive and sovereignty-respecting “international society.” The latter’s defeat at the hands of the former, if unevenly manifested at present, is inexorable: Buchan predicts that “non-liberal states will become increasingly marginalised” and that “the international community will encourage if not compel liberal reformation” (p. 224). Buchan’s account is at once explanatory, predictive, and prescriptive; while he presents his findings primarily as an interpretation of events, his characterizations leave no doubt as to his enthusiasm for the trajectory that he discerns.

Read the rest of this entry…

Print Friendly
 

Announcement: EJIL:Live!; Additions to the UN Audio Visual Library; Events in London on International Judiciary and International Boundaries

Published on November 16, 2014        Author: 

1) In case you missed it: Episodes 1 and 2 of EJIL:Live! are available online, as is an audio episode of EJIL:Live! ExtraEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler, and Oliver Diggelmann (University of Zurich) and Tilmann Altwicker (University of Basel), whose article “How is Progress Constructed in International Legal Scholarship?”, appears in Vol. 25, Issue 2 of EJIL.

The 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)  New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to an unlimited number of recipients around the world free of charge. The latest lectures were given by Judge Vagn Joensen on “An Introduction to the International Criminal Tribunal for Rwanda and its Impact on the Rule of Law in Rwanda” and by Professor David D. Caron on “Understanding Why International Courts and Tribunals Look and Act as They Do”.

3)  The International Law Programme at Chatham House would like to invite you to the forthcoming event with Judge Kenneth Keith of the International Court of Justice, ‘Challenges to the Independence of the International Judiciary’. The event will take place on  Wednesday 26 November 2014, from 17.30 to 18.30 at Chatham House in St James’s Square, London. Attendance is free, but prior registration is required. For further details and to register see here.

4)  London International Boundary Conference 2015 Call for Papers – Deadline 31 December 2014. The London International Boundary Conference 2015, which will take place on 21-22 April 2015 at the Royal Geographical Society in London, has launched a call for papers. This conference will provide a unique and multidisciplinary insight into the complex world of international boundary and territorial questions.  Each panel will offer a balance of established expertise and emerging talent. The Department of Geography, King’s College London, Volterra Fietta and the United Kingdom Hydrographic Office invite any interested parties to submit their abstract to Clementine Lietar (clementine.lietar {at} volterrafietta(.)com) and Anass El Mouden (anass.elmouden {at} volterrafietta(.)com) by 31 December 2014. This abstract should be written in English and contain no more than 500 words. It should include the title of the paper as well as the name and contact details of the author. For more information on London International Boundary Conference 2015, please visit the website or email info {at} londoninternationalboundaryconference(.)com.

Print Friendly
Filed under: Announcements and Events