EJIL: Live! Joseph Weiler and Anne Orford Discuss Intervention in Civil War

Published on October 25, 2015        Author: 

In the latest episode of EJIL:Talk!, Professor Joseph Weiler, Editor-in-Chief of the European Journal of International Law, and Professor Anne Orford of the University of Melbourne discuss the project she is undertaking on ‘Civil War, Intervention, and International Law’, for which she was recently awarded an Australian Research Council fellowship. In probing the question of whether or when it is lawful for foreign actors to intervene in a civil war, the discussion touches on the importance, and lack, of universal principles to address the problem and the related issue of the involvement of regional organizations in civil war situations.

Print Friendly

Announcements: Georgia Law School Lecture; Conference on Defence Counsel at International Criminal Courts and Tribunals; Francis Lieber Prize 2016

Published on October 24, 2015        Author: 

1. Georgia Law School Lecture. The UN Charter turns 70 this week, and the University of Georgia School of Law is joining in the global celebration – it’s also the 38th birthday of the school’s Dean Rusk International Law Center. Monday, October 26, from 4-6 p.m., will mark the rededication of the Louis B. Sohn Library on International Relations in its new home, in the renovated Center. Dr. Kannan Rajarathinam (Georgia Law LLM’88), Head of Office, UN Assistance Mission for Iraq, Basra, will speak on a critical topic: “The United Nations at 70: Pursuing Peace in the 21st Century.” Also giving remarks – on Georgia Law luminaries like Professors Sohn, Professor and former U.S. Secretary of State Rusk, Professor Gabriel Wilner, and Professor Sigmund Cohn – will be Dean Peter B. “Bo” Rutledge, Associate Dean Diane Marie Amann, Professor Harlan Cohen, and alums Dorinda Dallmeyer and Ken Dious. External cosponsors for the event include the American Bar Association Section of International Law, the American Branch of the International Law Association, and the American Society of International Law, for which Professor Sohn served, respectively, as Chair, Vice President, and President. Those titles signal the 20th C. influence of Professor Sohn, who, inter alia, helped draft the UN Charter, advised UN agencies, and chaired the conference that led to conclusion of the UN Convention on the Law of the Sea. Further details can be found here, and the event will be livestreamed here.

2. Conference on Defence Counsel at International Criminal Courts and Tribunals. The Association of Defence Counsel Practising before the ICTY and Representing Counsel before the MICT (ADC-ICTY) is pleased to announce its annual conference, to be held on 5 December 2015 in The Hague. This one-day conference will focus on the position of defence counsel at international criminal courts and tribunals, and will feature a keynote speech and four distinguished panels on various topics in relation to the role and importance of the Defence. For further information and to register, please contact the ADC-ICTY Head Office at {at} gmail(.)com, and see here.

2. Francis Lieber Prize 2016. The American Society of International Law’s Lieber Society on the Law of Armed Conflict is inviting contributions for the Francis Lieber Prize 2016.  Both monographs and articles (including chapters in books of essays) are eligible for consideration. Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate. Submissions are due by 9 January 2016. Full details of criteria and the application process can be found here.




Print Friendly
Filed under: Announcements and Events

From Passive Consent to Self-Defence after the Syrian Protest against the US-led Coalition

Published on October 23, 2015        Author: 

Since September 2014, the US and some Arab States have conducted air strikes against Islamic State (IS) in Syria. They have recently been joined by some Western States, including the UK, Canada, Australia and France. The justification given by those States and the US for their military operations in Syria is based on the right of self-defense, enshrined in Article 51 of the UN Charter. Such justification has been contested by some scholars. Yet, this does not mean those air strikes should be considered unlawful. It is argued that they could be justified by the “passive consent” of Syria.

  1. The end of passive consent

Contrary to their reaction to air strikes conducted by States such as Turkey, Syrian authorities did not formally oppose air strikes by the US-led coalition after they occurred – although some limited objections have been formulated in the media. The Assad regime even seems to have welcomed this international effort to fight against IS and expressed its readiness to cooperate with such effort. As a result, although consent has never been expressly given by the Assad regime to the US-led coalition’s airstrikes, the absence of protest by this regime could be interpreted as “passive consent” thereto. Such interpretation could find some support in the DRC v. Uganda case (para. 46), in which the ICJ inferred the DRC’s consent to the presence of Uganda troops on its soil from the absence of any objection to such presence.

Yet, regardless whether “passive consent” is a valid legal basis for justifying the airstrikes conducted by the US-led coalition against IS in Syria, such legal basis seems now to be in great trouble. Read the rest of this entry…

Print Friendly

The (Non-)Judicialisation of War: German Constitutional Court Judgment on Rescue Operation Pegasus in Libya of 23 September 2015 (Part 2)

Published on October 22, 2015        Author: 

Editor’s Note:  This is the second of two posts discussing the ‘Rescue Operation Pegasus’ Judgment of the German Federal Constitutional Court.

4. Assessment

The legal reasoning of the German Federal Constitutional Court in the Rescue Operation Pegasus Judgment is quite obviously inspired by the desire to avoid impractical results. It is somewhat in tension with the Court’s insistence on an otherwise joint and unified power of Government and Parliament (“Entscheidungsverbund”; para. 83).

Still, I find the teleological argument fully convincing: On the premise that Parliament has the war power because it is supposed to co-decide in the face of political and military risk but not to assess the lawfulness of the operation, an ex post “ratification” does not make sense.

Importantly, in the different factual situation of an ongoing operation, parliamentary approval would have to be sought, and its refusal would deploy its effect ex nunc and oblige Government to withdraw troops (para. 87).

It is also worth noting, that – like a counter-point to the actual holding against Parliament − the Court by way of dicta highlighted and strengthened parliamentary powers in numerous respects. Read the rest of this entry…

Print Friendly

The (Non-)Judicialisation of War: German Constitutional Court Judgment on Rescue Operation Pegasus in Libya of 23 September 2015 (Part 1)

Published on October 21, 2015        Author: 

Editor’s Note: This is the first of two posts discussing the ‘Rescue Operation Pegasus’ Judgment of the German Federal Constitutional Court.

In the middle of the civil war in Libya in 2011 (before the start of the UN authorised military operation), the German Chancellor, following the proposals made by the Ministers of Foreign Affairs and of Defence, decided to evacuate 132 persons (German and other civilians) from an industrial camp in Nafurah, 400 km south of Benghazi. The operation – dubbed “Operation Pegasus” – succeeded without any combat action.

Subsequently, a group of members of the German Bundestag seized the German Federal Constitutional Court and argued that the constitutional and statutory division of powers among the Executive and the Legislative branch when it comes to deciding about military action not only demands parliamentary ex ante approval but also, in those urgent cases where the Executive is allowed to decide on its own, requires a formal ex post approval. This claim was rejected by the Court (judgment of the Second Senate, 23 September 2015, No. 2 BvE 6/11).

1. The legal framework and background

Germany is probably the state with the most detailed legal regime on parliamentary involvement in decisions on the use of military force abroad. Read the rest of this entry…

Print Friendly

Japan’s New Optional Clause Declaration at the ICJ: A Pre-Emptive Strike?

Published on October 20, 2015        Author: 

On the pitch, the best offense is sometimes a good defense. Alternatively, you can simply decide not to play.

It was reported yesterday that Japan has submitted a new reservation to its declaration recognizing the compulsory jurisdiction of the International Court of Justice (ICJ). The new reservation, which is not yet available on the Court’s website, apparently seeks to exclude disputes relating to living marine resources from the Court’s jurisdiction. According to a fact sheet from Japan’s Ministry of Foreign Affairs, Japan considers that such disputes should instead be heard under the dispute settlement provisions of the 1982 UN Convention on the Law of the Sea.

This is an interesting, if not surprising, development. In March 2014, the ICJ held in Whaling in the Antarctic (Australia v. Japan) that Japan’s authorization of special permits for the killing of whales in connection with the research program known as JARPA II did not comply with Article VIII of the International Convention on the Regulation of Whaling (ICRW). Article VIII, paragraph 1, provides that “any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit”. Whaling that is authorized by special permit under Article VIII is exempt from other restrictions imposed by the ICRW regime, including the moratorium on commercial whaling that has been in place since the 1980s.

Read the rest of this entry…

Print Friendly

Mass killings of Tamil civilians downplayed in new UN report on Sri Lanka, silent on genocide question

Published on October 19, 2015        Author: 

On 1 October 2015 the United Nations Human Rights Council adopted by consensus the resolution ‘Promoting reconciliation, accountability and human rights in Sri Lanka’. The basis for the resolution was the release and consideration of the long awaited Office of the High Commissioner on Human Rights Investigation on Sri Lanka (OISL) (see here for links to the summary and full reports).

Strikingly, OISL moves away from the position on mass civilian killings taken in an earlier UN report of 2011 (see EJIL: Talk! post here) (2011 Report). According to the 2011 Report, tens of thousands of Tamil civilians were killed between January and May 2009, in particular the final weeks leading up to the government declaration of victory over the Liberation Tigers of Tamil Eelam (LTTE), who immediately prior to this period controlled most of the Tamil-dominated Vanni region of the island. The 2011 Report found reasonable grounds to believe that most of these deaths were the result of intentional government attacks directed at civilians, amounting to crimes against humanity. In contrast OISL neglects to estimate the scale of deaths and considers these same attacks only as a set of potential war crimes, denying their widespread and systematic nature against a civilian population. The new report which proposes a domestically-based war crimes mechanism shifts attention away from the most egregious international crimes of the government in the 2011 Report, leaving the demands of Tamil representatives for consideration of the crime of genocide unaddressed. 

The 2011 Report places these mass killings prominently, finding:

“… Between September 2008 and 19 May 2009, the Sri Lanka Army advanced its military campaign into the [LTTE-held] Vanni using large-scale and widespread shelling, causing large numbers of civilian deaths. This campaign constituted persecution of the population of the Vanni… The Government shelled on a large scale in three consecutive No Fire Zones, where it had encouraged the civilian population to concentrate, even after indicating that it would cease the use of heavy weapons. It shelled the United Nations hub, food distribution lines and near [ICRC] ships that were coming to pick up the wounded… It shelled in spite of its knowledge of the impact, provided by its own intelligence systems and through notification by the [UN], the ICRC and others. Most civilian casualties in the final phases of the war were caused by Government shelling…The Government also systematically deprived people in the conflict zone of humanitarian aid, in the form of food and medical supplies … To this end, it purposefully underestimated the number of civilians who remained in the conflict zone. Tens of thousands lost their lives from January to May 2009, many of whom died anonymously in the carnage of the final few days.” (p.ii. “Executive Summary, Allegations found credible by the Panel”)

Read the rest of this entry…

Print Friendly

EJIL: Live! Interview with Professor Bernard Hoekman

Published on October 18, 2015        Author: 

The latest in the EJIL: Live! podcast series features an extended conversation between Professor Joseph Weiler, Editor-in-Chief of EJIL, and Professor Bernard Hoekman of the European University Institute, whose article, co-authored with Petros Mavroidis, “WTO ‘à la carte’ or ‘menu du jour’? Assessing the Case for More Plurilateral Agreements“, appears in Volume 26, Issue 2 and was discussed at EJIL:Talk! earlier this month. The conversation looks behind the scenes at the issues examined in the article, taking the discussion to deeper levels. The podcast is available in both video and audio formats.

Print Friendly
Filed under: EJIL: Live!

Announcements: University of Louvain academic vacancies; Developing International Law at the Bar; Settlement of Tax Disputes under International Law Conference; Conference on Australia’s Asylum Seeker Policies

Published on October 17, 2015        Author: 

1. University of Louvain (Belgium) academic vacancies. The University of Louvain in Belgium is currently advertising two academic vacancies. The first vacancy, Professorship, Public International Law, is a full-time position. The Professorship, Economic law position is a part-time position. The procedure and deadline for applying can be found here. Full English translations of the relevant websites are available.

2. Developing International Law at the Bar – A Growing Competition Among International Courts and Tribunals. On 5 November 2015 at 3pm, The Law and Practice of International Courts and Tribunals (Brill/Nijhoff) will offer its second Seminar in a series devoted to contemporary developments in international judicial practice. The Seminar will discuss some salient aspects of a growing competition among international courts and tribunals in the development of international law. The program is organized by Pierre Bodeau-Livinec (University Paris 8) and Chiara Giorgetti (Richmond Law School) and is co-sponsored by European Affairs committee of the NYCBA. Panelists include Chester Brown (University of Sydney), Mathias Forteau (University of Paris Ouest-Nanterre), Makane Mbengue (University of Geneva), Eduardo Valencia-Ospina (Editor-in-Chief of The Law and Practice of International Courts and Tribunals), August Reinisch (University of Vienna), Attila Tanzi (University of Bologna) and Catherine Tinker (Seton Hall University, Chair of the European Affairs Committee of the NYC Bar Association). For more information and to enrol see here. Read the rest of this entry…

Print Friendly
Filed under: Announcements and Events

Governing the Future with Sustainable Development Goals: Hopes and Challenges

Published on October 16, 2015        Author: 

The summit of world leaders that took place at the UN General Assembly in New York at the end of September marked an unusually harmonious moment in international politics. In the summit 193 countries acted in concert to adopt the Sustainable Development Goals (SDGs), which are set to replace the Millennium Development Goals (MDGs) at the beginning of 2016.

The new development agenda builds on the MDGs, and its Preamble declares that the SDGs are to complete what the MDGs failed to do. The final MDG report, which was released a week before the summit, shows that while progress has occurred in many spheres of global development, there have also been plenty of uneven achievements and shortfalls. These range from the world’s poorest remaining very unevenly distributed across regions and countries, to targets in improving maternal health not being fully met.

The SDGs reach far beyond MDGs in terms of their ambition, and they come with enormous potential. For example, instead of aiming to reduce extreme poverty rates the SDGs have set the bar higher with the aspirational target of eradicating extreme poverty everywhere. The new development agenda is also of unprecedented scope. While the MDGs comprised of 8 goals and 18 targets, the SDGs have 17 goals and there has been a nearly ten-fold increase in the targets to 169. The new agenda also recognises that some important development challenges, such as gender equality, are crosscutting issues that need to be taken into consideration in the implementation of all goals.

There are also positive developments in relation to human rights. Historically the relationship between MDGs and human rights has been tenuous, and the link between the two has been mostly implicit and under-developed. The MDGs have been criticised from a human rights perspective – among other thingsfor their non-participatory design process, for providing a ‘fig leaf of legitimacy’ to authoritarian regimes with poor human rights records, for enshrining goals that are less ambitious than those present in the human rights paradigm, and even for undermining international human rights law standards. The new agenda is more explicitly tied to international human rights instruments. The agenda states that the SDGs are grounded in the Universal Declaration of Human Rights and international human rights treaties, and that they seek ‘to realize the human rights of all’ (Preamble, Paragraph 10). In other words, human rights can be understood as both the foundation and the aim of SDGs. Read the rest of this entry…

Print Friendly