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Keep Calm and Call (no, not Batman but …) Articles 31-32 VCLT: A Comment on Istrefi’s Recent Post on R.M.T. v. The UK

Published on June 19, 2014        Author: 

Panos MerkourisPanos Merkouris, LL.M (Athens) 2004; LL.M (UCL, London) 2005; Dr. iur. (Queen Mary, London) 2010 is Lecturer in Public International Law in the Faculty of Law at the University of Groningen.

In a recent post on R.M.T. v. The UK: Expanding Article 11 of the ECHR Through Systemic Integration’ Kushtrim Istrefi raises important issues with respect to the application and content of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). Although I agree with the general conclusion that Article 31(3)(c) is not a panacea and should not be used as a backdoor for judicial activism, I think it pertinent to highlight certain issues as to the manner in which this conclusion is reached and in particular regarding the presumed content of Article 31(3)(c).

Firstly, let me clarify that this post is not about evolutive interpretation to which the ECtHR seems to be partial. Nonetheless, I agree with Eirik Bjorge’s comment to the above post, that this idea of ECHR as a living instrument is included in the preamble (‘…further realisation of human rights and fundamental freedoms’). Furthermore, the connection of evolutive interpretation with Article 31(3)(c) is particularly evident in ‘generic terms’. A ‘generic term’ can be understood either as ouverture du texte or renvoi mobile (Georgopoulos (2004) 108 RGDIP 132-134). In the former case, the openness of the term allows the content of the norm to change alongside the factual situation contemplated (‘evolution of fact’). Such an interpretation probably falls under Article 31(1). In the case of renvoi mobile, the norm, whenever interpreted, reflects the ‘evolution of the law’. As the law changes so does the content of that norm. In this case, evolutive interpretation could be understood as also being based on Article 31(3)(c).

Kushtrim’s main argument is that because ILO Convention No. 87 and the European Social Charter (ESC) are not binding on all member States of the Council of Europe (CoE), they probably do not fall within the scope of Article 31(3)(c). This conclusion is based on a restrictive interpretation of Article 31(3)(c), which holds that the Article should be read as ‘any relevant rules of international law applicable in the relations between the parties to the treaty’ and not expansively, as ‘…between the parties to the dispute’. This restrictive interpretation allegedly finds support in EC-Biotech:

7.68… This understanding of the term “the parties” leads logically to the view that the rules of international law to be taken into account in interpreting the WTO agreements at issue in this dispute are those which are applicable in the relations between the WTO Members…

7.69 … Accordingly, based on our interpretation of Article 31(3)(c), we do not consider that in interpreting the relevant WTO agreements we are required to take into account other rules of international law which are not applicable to one of the Parties to this dispute.

With respect to this restrictive interpretation I would like to raise the following three issues: Read the rest of this entry…

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ESIL Interest Group on Human Rights Launches Online Symposia on International Human Rights Law

Basak2 Dr. Başak Çalı (pictured above left) is Associate Professor of International Law at Koç Univerlmcgregor-53sity, Turkey. Lorna McGregor (pictured right) is a Reader in Law and Director of the Human Rights Centre at the University of Essex School of Law. Ivana Radačić (pictured below left) is a senior research associate at Ivo Pilar Institute of Social Sciences in Zagreb and Radacic_foto_CVa visiting lecturer at the University of Zagreb, the University of Osijek, the European Inter-University Centre for Human Rights and Democratisation (Venice). They are the Founding Co-Chairs of the European Society of International Law’s Interest Group on International Human Rights Law.

The theme of this year’s ESIL annual conference is ‘International Law AND …’  It takes place in a year of conferences seemingly devoted to ‘taking stock’ of the current state of international law and assessing the future opportunities and challenges it will face (see the recent ASIL-ILA conference on the Effectiveness of International Law and last week’s ILA British Branch conference on Foundations and Futures of International Law).

In establishing the ESIL Interest Group on Human Rights, we wanted to ‘take stock’ of International Human Rights Law and in doing so, to ask the big structural, procedural and substantive questions that are necessary to determine its future.  We plan to hold conferences like our inaugural roundtable on ‘International Human Rights Law AND…’ at the ESIL annual conference in Vienna in September and to encourage debate and discussion through online symposia, particularly on EJIL Talk! and other academic and practical projects.

Before our discussions even begin, however, we have to be clear on how we understand international human rights law. We regard international human rights law as a field that is simultaneously positioned both within public international law and across other disciplines.   International human rights law is substantial but nonetheless a sub-branch of public international law as well as part of a large and growing interdisciplinary ‘field’ of human rights.  Characterising international human rights law in this way is often overlooked but gives a much more textured and nuanced picture of its operation and the challenges it faces through resistance to containment as a sub-branch; internal-fragmentation; and interdisciplinary expansion.

Resistance to Containment to a Sub-Field  

The presentation of international human rights law as a sub-branch conceals its dominance within public international law making it a much bigger project than a ‘sub-branch’ would suggest.  Read the rest of this entry…

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Announcements: Job Openings–Professor/Reader at University of Essex, Legal Advisor at ICRC

Published on June 14, 2014        Author: 

1.  The University of Essex announces an opening for a Professor/Reader in Law (IHRL/ICL/IHL or related PIL). To be appointed to the Professorship an individual will have a clearly established international level reputation in the field of International Human Rights Law or a related field of Public International Law, such as International Criminal Law or International Humanitarian Law, and will be recognised as one of the leaders in their field. For the Readership the appointee will have an outstanding record of excellent research and be able to display clear potential to achieve a chair level appointment in a UK university. The closing date is 14 July 2014. Further details are available here.

2.  The Commentaries Update Project of the International Committee of the Red Cross has a job opening for a legal adviser. Further details  are available here.

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Announcing the OPIL World Cup Challenge

Published on June 11, 2014        Author: 

In nearly 20 years of legal publishing nobody has ever sent me a proposal for a book on football and international law. It’s not like there is any lack of international legal issues to be addressed – dispute settlement, IP, workers’ rights, corruption – the list goes on.  Perhaps many of the issues are more matters of private than public law but with the ongoing blurring of that distinction it could equally be the case that the time is ripe for a thorough scholarly investigation.

In an effort to marry up interest in public international law and football, and also to provide a bit of a distraction from all the sports coverage, we have devised the Oxford Public International Law World Cup Challenge. The concept is straightforward; hopefully the questions are less so. The questions are all about international law, and the answer to each question is the name of a country, or two countries, contesting the World Cup in Brazil. There are 27 questions relating to the 32 countries. You can try to work out the answers using your existing knowledge and deductive logic and then when you get stuck do a bit of research to find the rest.

The answers to the questions, along with brief explanations as necessary, will be posted on the site upon the conclusion of the group stages, on Friday 27th June. Please feel free to contact me if you have any queries.

We sincerely hope you find the quiz stimulating and enjoyable. Who knows, I might finally get a book proposal that combines the world’s greatest pastime and…football.

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The Idealist’s Dilemma: Re-Imagining International Society

Published on June 9, 2014        Author: 

There has never been a better time to be an international lawyer.   International Law is at last emerging as a sophisticated legal system, in an international society experiencing take-off – to borrow two metaphors from development economics.

International Law is living its own 1860’s.   From the 1860’s, especially in European countries and the United States, the forms of law multiplied prolifically to respond to the vastly greater complexity and energy of society.   Legal fragmentation and institutional innovation were an expression of self-transforming social vitality – as they are now in the emerging international society.

International lawyers are the most privileged of all lawyers.  International Law is the law of all laws, the law of the whole human world.  International lawyers are front and centre in the drama of making the new international society.

But there’s something that greatly limits the part we can play in the project of making the law of the new international society.   The international world suffers from a grotesque poverty of philosophy.  That phrase – ‘poverty of philosophy’– was used by Karl Marx in 1847 to criticise the situation at the level of national society.

Our predecessors at the national level had the great advantage that they could use thirty centuries of intense thought about the forms of law and order required for the good life lived in a good society.

The grotesque poverty of philosophy at the international level means that the international world has one big idea.   Everything else is a deduction from that one big idea.

The one big idea is that the international world is not a social phenomenon but an anomalous excrescence from national societies, an exogenous unsocial dependent reality, isolated from the vast intellectual superstructure required for the survival and prospering of national society.

Re-imagining the one big idea of the international world is an exciting challenge for those of us who think for a living.   It is an exciting challenge for international lawyers.   And it is a particularly delightful challenge for those of us who are philosophical idealists.    Read the rest of this entry…

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Announcements: Conference in Bangor on Proof in International Criminal Law, ASIL Research Forum Call for Papers: New Deadline, Conference on 21st Century Borders

Published on June 6, 2014        Author: 
1.  From 27-28 June 2014, Bangor Law School and the Bangor Centre for International Law will host a conference on proof in international criminal trials. It promises to be of great interest to academics and practitioners alike. The full conference programme is available here. Register here.

2.  ASIL Research Forum – November 6-8, Chicago, USA. The American Society of International Law has extended the deadline for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society’s Midyear Meeting in Chicago November 6-8, 2014. Papers can be on any topic related to international and transnational law and should be unpublished.  Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Interested paper-givers should submit an abstract (no more than 1000 words in length) summarizing the scholarly paper to be presented at the Forum. Review of the abstracts will be blind.  Proposals should be submitted online by June 15, 2014. To submit a proposal, or for more information, please visit here. 

3. The Keele School of Law is hosting a workshop on June 13th on the theme: ‘Theorising and Historicising International Law and the Environment’. The workshop brings together scholars with a shared interest in legal history to critically engage with the pre-history of international environmental law and its relationship to empire. Speakers include Yoriko Otomo (SOAS), Stephen Humphreys (LSE), Celine Tan (Warwick), Matthew Nicholson (Southampton) and Mario prost (Keele). For more information, and to register, please visit here.
4. Conference on 21st Century Borders: Territorial Conflict and Dispute Resolution, Friday 13th June 2014, University of Lancaster. 21st Century borders are coming under increasing strain with the recent annexation of the Crimea and disputes over islands and maritime delimitation in Asia, amongst others. This conference, organised by the Centre for International Law and Human Rights at Lancaster University Law School will explore the causes and dynamics of contemporary territorial disputes as well as mechanisms to resolve them. Full details and registration information can be found at the Centre’s website www.lancaster.ac.uk/cilhr/

 

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Non-State Armed Groups in NIAC: Does IHL Provide Legal Authority for the Establishment of Courts?

Published on June 4, 2014        Author: 

The recent Serdar Mohammed v. Ministry of Defencecase has prompted a number of interesting and insightful posts addressing the issue of whether international humanitarian law (IHL) provides a legal basis for detention in Non-International Armed Conflicts (NIAC) (see, for example, here, here, here and here). This discussion offers an opportunity to address the issue of non-State armed groups, something not discussed in detail so far, with the notable exception of Aurel Sari’s post. In particular, the existing debate with regard to detention raises, more broadly, the issue of the legal authority extended to non-State armed groups party to a NIAC. In this post, I present an argument in support of one of the most controversial issues in this area: the authority of armed groups to establish courts.

Does IHL regulate armed group courts?

As is well known, IHL does not provide an explicit basis for the establishment of courts in NIAC, but rather regulates their operation in the event they are in fact established. In this regard IHL contains two relevant rules. Common Article 3(1)(d) of the Geneva Conventions of 1949 prohibits ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court’, while Article 6 of Additional Protocol II (AP II) requires that ‘[n]o sentences shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality’. Regarding the common Article 3 requirement that a court be ‘regularly constituted’, sources such as the ICRC Customary IHL Study note that a court may satisfy this requirement ‘if it has been established and organized in accordance with the laws and procedures already in force in a country.’ This would appear to support the argument that IHL does not provide a specific legal basis for the establishment of courts (authority is derived from the municipal law in force). At the same time, this reasoning also appears to preclude the convening of armed group courts since domestic law is (almost certainly) unlikely to establish a legal basis for non-State armed group courts. That said, it should be noted that the Pictet Commentary to the Geneva Conventions does not equate the regularly constituted requirement with a basis in municipal law, but rather focuses on the prohibition of ‘summary justice’.

Article 6(2) AP II – which ‘develops and supplements’ common Article 3 – dispenses with the ‘regularly constituted court’ provision, requiring instead that a court offer ‘the essential guarantees of independence and impartiality.’ The ICRC Commentary notes that this was a deliberate act during drafting, as ‘some experts argued that it was unlikely that a court could be “regularly constituted” under national law by an insurgent party’. Read the rest of this entry…

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Locating the Legal Basis for Detention in Non-International Armed Conflicts: A Rejoinder to Aurel Sari

Published on June 2, 2014        Author: 

Last month, in response to the decision of the English High Court in Serdar Mohammed v. Ministry of Defence (see Marko’s commentary here), we wrote a piece arguing that Mr Justice Leggatt correctly concluded that international humanitarian law (IHL) does not provide a legal basis to detain in non-international armed conflicts (NIACs). We argued (contrary to Kubo Macak) that authorization to detain in a NIAC does not come from IHL, but rather must be found either in domestic law or in other branches of international law. In particular, we explained that the fact that IHL applicable in NIACs recognises that detention will occur and regulates such detention does not mean that this body of law provides an authority to detain in NIACs. Locating the legal basis for detention has significant implications for assessing the legality of detention in a NIAC, under international human rights law (IHRL). Aurel Sari has written an articulate and thought-provoking response to our post. We wish here to respond to the key points of Aurel’s critique of our view.

The Distinction between IAC Law and NIAC Law

Aurel begins by responding to our claim that the regulation of internment by IHL does not necessarily lead to the conclusion that IHL authorises it. However, his main criticism ignores the distinction we draw between the law applicable in NIACs and that applicable in IACs. He argues that to ‘conclude that IHL does not authorize any of the activities it regulates takes the argument too far.’ We agree, and in fact we do not make such a claim. Rather, we consider this issue to reflect one of the key differences between the law of international armed conflicts (IACs) and that of NIACs. As we noted in our post, whereas IHL applicable in IACS specifically authorises combatants to engage in hostilities (Art 43(2) Additional Protocol I) and to intern combatants (Art 21(1) Geneva Convention III) and civilians (Arts 27(4), 42-3 and 78 Geneva Convention IV), in NIACs IHL is silent on all of these issues and instead merely regulates certain aspects of them.

The reason for this difference between the two bodies of law is partly a consequence of the context of the two types of armed conflict. Since IACs concern two or more states, one state or the other is going to be acting on the territory of a foreign state and acting with respect to individuals who are foreign nationals.  In these circumstances, only an explicit norm of international law can provide the legal authority for targeting, detention, etc. Without such a rule of international law, these actions would be unlawful as a matter of international law since states do not have authority to take such action on the territory of another state and have obligations to other states with respect to how they treat nationals of those other states.

However, the position in NIACs is very different since such conflicts relate (mainly) to intra-state, as opposed to inter-state, relations. Read the rest of this entry…

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Announcements: International Legal Theory Conference in London, Conference in UK on ECtHR Jurisprudence in International Criminal Tribunals

Published on May 31, 2014        Author: 

1. On Friday 20 June 2014 the Society of Legal Scholars International Law Section and the British Institute of International and Comparative Law will co-host the 23rd Conference on Theory and International Law in London. The theme of this year’s conference is Sovereignty in the 21st Century. This conference will address aspects of both the theoretical and practical dimensions of sovereignty in the 21st century. Topics to be discussed include: the future of the concept of permanent sovereignty over natural resources; the future of the anthropomorphic conceptualization of the state in the context of the debates concerning statehood and recognition; international law and the value of statehood; state power and corporate sovereignty; monetary sovereignty; and counterterrorism, international organisations and state sovereignty. This conference will be of interest to academics, students and practitioners in the fields of international law, international relations, political science and diplomacy, civil liberties and human rights law. All those with an interest in current affairs will find much of interest in the subject matter of the conference and will be most welcome. Further details (including a link to the conference programme) are available here.

2. On 14 June 2014, Edge Hill University (UK) is hosting an international conference titled “The ‘Cross-Fertilization’ Rhetoric in Question: Use and Abuse of the European Court’s Jurisprudence by International Criminal Tribunals”. Speakers will discuss the outcomes of the presentations made by the participants in a workshop held at Edge Hill the day before. The main purpose of this initiative is to critically assess the manner in which human rights standards developed by the European Court of Human Rights have been used (or misused) by international criminal tribunals. See here for details.

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