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The Territorial Reach of the EU’s “Right To Be Forgotten”: Think Locally, but Act Globally?

Published on August 14, 2014        Author: 

Brendan Van Alsenoy is a legal researcher at the Interdisciplinary Centre for Law & ICT (ICRI), KU Leuven – iMinds. Marieke Koekkoek is a research fellow at the Leuven Centre for Global Governance Studies (GGS), KU Leuven.

800px-Google_SignIn May of this year, the Court of Justice of the European Union (CJEU) decided that individuals can – under certain conditions – ask Google (photo credit) to stop referring to certain information about them. The CJEU’s recognition of this so-called “right to be forgotten” has kicked up quite a storm. Now that the dust is beginning to settle, it’s time to direct our attention to questions of practical implementation. One set of questions is about territorial reach. How far should the right to be forgotten extend, geographically speaking? Should Google, upon finding that an individual’s request is justified, modify its search results globally? Or should it only modify search results shown within the EU?

According to press reports, Google’s current approach is to limit its modification of results to the “European versions” of the search engine. Search results of people using google.com remain unaltered, while people using google.es or google.be may no longer be seeing the full picture. However, Google still allows its EU users to switch to the .com version, simply by clicking a button at the bottom of the page. EU users can also freely navigate to other country-specific versions of the search engine, whose search results may not be filtered in the same way. By not taking further measures to limit access to “forgotten” search results, it seems as if the search engine is needlessly provoking the wrath of European data protection authorities. So what should the search engine be doing?

Realistically speaking, only two approaches seem viable. The first option would be to “keep it local”, by filtering the search results for queries originating from EU territory – regardless of which country version of Google is being used. The second option would be to “go global”, which would involve modification of search results worldwide. (To be clear, either approach would only kick in once Google has decided to grant a specific request and would only affect results following a name search).

It is true that nothing in the CJEU ruling suggests that Google would be justified in limiting itself to specific websites, countries or regions. But, as even the Chairwoman of the Article 29 Working Party has acknowledged, the matter may not be so clear-cut. Read the rest of this entry…

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The Security Council and Humanitarian Relief in Opposition-Held Territories

Published on August 12, 2014        Author: 

TilmanTilman Rodenhäuser (pictured left) is a researcher at the Geneva Center for the Democratic Control of Armed Forces, and a PhD candidate at the Graduate Institute in Geneva. Jonathan Somer (pictured right) is the founderJonathan Somer of Persona Grata Consulting, advising on international law and policy in fragile states. Until recently he was Legal Adviser for Geneva Call and has previously worked with the Organisation for Security and Cooperation in Europe.

Over the past year, the Security Council has repeatedly demanded all parties to the armed conflict in Syria, particularly the Syrian authorities, to allow and facilitate humanitarian relief operations across conflict lines and across borders (see resolution 2139 and a presidential statement) – but with little success. In its latest resolution the UN Security Council decided – for a period of 180 days – “that the United Nations humanitarian agencies and their implementing partners are authorized to use routes across conflict lines and [specific] border crossings … in order to ensure that humanitarian assistance” reaches people in need in Syria. The Security Council also decided to establish a monitoring mechanism in neighbouring countries in order to confirm the humanitarian nature of the relief consignments.

Resolution 2165 was adopted as international humanitarian law experts continue to debate whether aid may be lawfully delivered cross-border to opposition-held territories without the consent of the host state. While some (here and here) contend that the issue is clear-cut – with consent being required – the only thing that does seem clear-cut is the lack of consensus. Others, including one of the present authors, argue a case exists for cross-border assistance without consent under certain conditions. This latter view has been supported by the former President of the International Humanitarian Fact Finding Commission and co-author of an authoritative commentary on the Additional Protocols to the Geneva Conventions, Professor Bothe, in an unpublished study provided to the UN. A group of prominent legal experts have made even bolder claims in a recently published open letter. So while international lawyers continue to sharpen their pencils, resolution 2165 supplements IHL by invoking the authority of the Security Council to fill in the gaps left by IHL’s uncertainties on cross-border aid in non-international armed conflict.
Read the rest of this entry…

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Mapping the Scholarly Commentary on Israel-Gaza Wars 2008-2014

Published on August 11, 2014        Author: 

John Louth, Editor-in-Chief of Academic Law Books, Journals and Online content at Oxford University Press has produced another one of those impressive Debate Maps that they have been creating over the last year or so. This one is about the Israel-Gaza Wars from 2008 to 2014 and it:

“. . . maps scholarly commentary on the international law aspects of the armed conflict(s) between Israel and Gaza since Israel withdrew from the territory. Sources in the map include commentary published in English language law blogs and newspapers, and free content from OUP’s online services other free repositories.

A later update of this map will include consideration of a referral of the situation to the International Criminal Court.

Whereas previous maps attempted to provide comprehensive coverage of blog commentary, this map is more selective due to the time period covered. Comments from readers pointing out important issues and perspectives that have not been included can be sent to john.louth {at} oup(.)com.”

We at EJIL:Talk! have, at least thus far, not had much to say about the current conflict in Gaza. However, as the OUP Debate Map shows, we have have posted extensively on previous manifestations of the conflict between Israel and Gaza. Much of that prior analysis remains relevant to the current conflict. We are highlighting that previous commentary in our “From the Archives” box which is to the left of this post (if you’re on a computer) or below the list of posts (if you’re on a mobile device). As John has not yet included material on the possibility of a Palestinian acceptance of the jurisdiction of the ICC, we have included in the “From the Archives” box some of the previous EJIL:Talk! posts on that issue. We have also included some of the posts on whether Gaza is occupied - an issue of critical importance with regard to the debate on whether Israel has a continuing obligation to supply electricity to the territory. We have also included some of our early posts on proportionality and on the question of who is to be regarded as a combatant in Gaza (here, here and here).

As with the other Debate Maps produced by OUP, this one is to be highly recommended. It is one of the easiest and best ways to get an overview of the legal issues and provides a really useful bibliography of scholarship on those issues. For an explanation by John and Merel Alstein at OUP of the thinking behind the Debate Maps see here and here.

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Announcements: New Research and Teaching Hub at Reading; New LLM at American University DC

Published on August 9, 2014        Author: 

1) Global Law at Reading – a new teaching/research hub launched: The School of Law at the University of Reading has just launched Global Law at Reading (GLAR), a major new teaching and research hub for law staff and students working in public international law, EU law and human rights. The GLAR website has recently been developed and is now live: www.reading.ac.uk/globallaw This provides up-to-date information on GLAR, including news and events, relevant staff profiles, publications and research, and much more. As such, it is an invaluable resource especially for those interested in studying public international law, EU law or human rights at Reading, whether for one of our dedicated GLAR LLM programmes or the PhD. The GLAR website will be continually updated with news and events concerning the work done in global law areas at the University of Reading, and it will soon feature a regular free podcast featuring debates and papers on GLAR topics.

2)  New LL.M. IN International Human Rights and Humanitarian Law : American University Washington College of Law’s Academy on Human Rights and Humanitarian Law is pleased to announce that its new LL.M. in International Human Rights and Humanitarian Law. This new offering by the Academy recognizes the vast interest in the legal community in studying human rights law at American University Washington College of Law (AUWCL). This program is the only LL.M. program in International Human Rights and Humanitarian Law in the United States to offer a hybrid curriculum of its kind in a U.S. law school. With online and residential course components, this program is designed for practitioners and other human rights professionals who wish to pursue advanced studies in international human rights law and humanitarian law alongside their existing work responsibilities. AUWCL has built a significant reputation in this field, and it is highly recognized around the world.  Moreover, its unique location in Washington D.C. offers unparalleled opportunities to legal professionals from the U.S. and around the world. The LL.M. in International Human Rights and Humanitarian Law is designed and coordinated by Professors Claudia Martin and Diego Rodríguez-Pinzón, Directors of the Academy on Human Rights and Humanitarian Law and Professorial Lecturers in residence. The Program is implemented under the Academic direction of Robert K. Goldman, Louis C. James Scholar and co-director of the Center for Human Rights and Humanitarian Law as well faculty director for the War Crimes Research Office and professor of law. The LL.M.’s faculty is composed of human rights and humanitarian law experts coming from academia, international tribunals, civil society organizations and international organizations.

The application for Spring 2015 is now open! Applications are due November 1st. For more information, visit us here. Reach us via email at humanrights {at} wcl.american(.)edu or by phone at 202-274-4295

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Article 12(2)(a) Rome Statute: The Missing Piece of the Jurisdictional Puzzle

Published on August 7, 2014        Author: 

2014.08.05.Jean Baptiste photoJean-Baptiste Maillart is a PhD Candidate at the University of Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.

Article 12(2)(a) of the Rome Statute provides that the ICC may exercise its jurisdiction over a crime if the “State on the territory of which the conduct in question occurred” is a party to the Statute or has accepted the Court’s jurisdiction by a declaration. It has become commonplace to paraphrase that provision as stating that the Court may exercise its territorial jurisdiction over a crime that has been committed within the territory of a State Party. For instance, the late Judge Hans-Peter Kaul wrote [p. 607] “if a core crime is committed by an individual in the territory of a State Party to the Statute, the ICC will have jurisdiction” (see also the commentaries of Schabas [p. 285], Bourgon [p. 564] and Haupais [p. 582]). The Court itself uses the exact same wording: “[…] under article 12(2) of the Statute one of the two alternative criteria must be met: (a) the relevant crime was committed in the territory of a State Party or […] (b) the relevant crime was committed by a national of a State Party […]” (ICC-01/04-01/07-262 [§. 14]); see also for instance ICC-02/11-14 [§. 187] or ICC-01/09-19-Corr [§. 175]).

However, a careful and literal reading of Article 12(2)(a) leads to a different conclusion. The Court has jurisdiction over a crime when “the conduct”of this crime occurred on the territory of a State party, not when the crime was committed there. Some scholars addressing Article 12 (e.g., Wagner [p. 485] and Vagias [p. 53]) have pointed out the exact terminology used, but none have considered whether it could have any practical effect. This post considers, on the basis of the traditional interpretation of the term “conduct”, a possible challenge to the ICC’s jurisdiction over certain cross-border crimes where, if Article 12(2)(a) said “commission”, it would undoubtedly have jurisdiction. In other words, it could be argued that it is incorrect to read “conduct occur[ing]” on certain territory as equivalent to “commission of a crime” on that territory.  The post also proposes a counter-argument in favor of jurisdiction. Read the rest of this entry…

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Towards a New Global Treaty on Crimes Against Humanity

Published on August 5, 2014        Author: 

Sadatl4Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.

Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of DPivnichny photoLaw in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

The Crimes Against Humanity Initiative and Recent Developments at the ILC

On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity.

The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008.  The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1st  ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available. Read the rest of this entry…

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Consent and Customary International Law

Published on August 4, 2014        Author: 

I am pleased to see Professor Guzman and Jerome Hsiang being among those authors who admit that one cannot construct a plausible and coherent CIL theory without a thorough conceptual clarification. In their short article in EJIL Vol. 25:2 (2014), they are focusing on consent and CIL, particularly on the tension between the principle of consent prevailing in international law and non-consensual law-making in the field of CIL. They do not perform an analysis on the concept “consent”, but try to answer the question of why rationally self-interested states should accept the existence of non-consensual customary rules in international relations. I am willing to accept some of their claims or conclusions, as follows. (i) There exist some weak, limited forms of non-consensual rule-making in contemporary international law. (ii) Customary rules are the output of such rule-making. (iii) A non-consensual customary rule, by its content and nature, usually provides great benefits to most of the states or the whole international order and relatively small costs to one or some states.

Of course, all this is the rejection of the so-called consent theories of CIL. It is no surprise. In his excellent, seminal article of 2005 (Saving Customary International Law), Guzman has outlined the basis of a modern, non-objectivist, belief-based CIL theory within the framework of his rational choice doctrine. A belief-based CIL theory is not compatible with consent theories. I also have doubts about that a consent theory could adequately explain how CIL really works. However, three caveats are in order here.

First, consent theories of CIL put up a stout resistance. They are supported by the requirement of “acceptance” in the text of Article 38(1)(b) of the Statute of the International Court of Justice, although they encounter difficulties with adjusting acceptance to opinio juris. For example, Olufemi Elias and Chin Lim, who worked out a modern, refined and flexible version of CIL consent theories (The Paradox of Consensualism in International Law), simply conflate the two concepts, which is problematic from the theoretical angle. Read the rest of this entry…

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Announcement: Training for International Electoral Observers

Published on August 2, 2014        Author: 

EIUC Training Seminar for International Electoral Observers. Early birds enrollment until 15 September. With the patronage of Italian, Spanish and Czech MFA, EIUC has developed two three-day modules aiming at providing training to civilian staff in election observation missions at the first steps of their career (i.e. short-term observers). The first module (17-19 November 2014) will highlight the quantitative observation of the STOs, while the second module (20-22 November 2014) will introduce the participants to the long-term election observation by analysing in depth some of the aspects related to an international observation mission.The methodology will combine frontal lecturers in plenary, working groups as well as role plays, discussions and simulation exercises. DEADLINE FOR APPLICATIONS: 15 OCTOBER 2014. Register by compiling the online application formFor more information please visit our websiteFor further enquiries please contact training.ieo {at} eiuc(.)org.

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New Issue of EJIL (Vol. 25: No. 2) Published

Published on August 1, 2014        Author: 

The latest issue of the European Journal of International Law (Vol. 25, No. 2) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can also access those articles that are freely available without subscription. The free access article in this issue is Sergio Puig’s Social Capital in the Arbitration Market. Next week, we will continue this issue’s EJIL:Debate! with a rejoinder by László Blutman to Guzman and Hsiang’s reply to his essay Conceptual Confusion and Methodological Deficiencies: Some Ways That Theories on Customary International Law Fail. In September, we will hold a discussion of Puig’s article. Subscribers have full access to the latest issue of 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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Fateful Elections? Investing in the Future of Europe

Published on July 31, 2014        Author: 

In an earlier Editorial I speculated on the potential transformative effect that the 2014 elections to the European Parliament might have on the democratic fortunes of Europe. I spoke of promise and risk. So now the results are out. How should we evaluate them?

I will address the three most conspicuous features of the recent elections – the anti-European vote, the continued phenomenon of absenteeism, and the innovation of the Spitzenkandidaten.

The Anti-European Vote and the I-don’t-Care-About-Europe Vote

The fathers have eaten sour grapes and the children’s teeth shall be set on edge.

In trying to explain the large anti-European vote (winners in France and the UK as well as some smaller Member States of the Union), much has been made of the effect of the economic crisis. Sure, it has been an important factor but it should not be used as an excuse for Europe to stick its head in the sand, ostrich-like, once more. The writing has been on the wall for a while.

In 2005 the constitutional project came to a screeching halt when it was rejected in a French referendum by a margin of 55% to 45% on a turnout of 69%. The Dutch rejected the Constitution by a margin of 61% to 39% on a turnout of 62%. (The Spanish referendum which approved the Constitution by 76% to 24% had a turnout of a mere 43%, way below normal electoral practice in Spain – hardly a sign of great enthusiasm.) I think it is widely accepted that had there been more referenda (rather than Ceausescian majority votes in national parliaments) there would have been more rejections, especially if the French and Dutch peoples had spoken at the beginning of the process.

It is also widely accepted that the French and Dutch rejections and the more widespread sentiment for which they were merely the clamorous expression were ‘a-specific’: they did not reflect dissatisfaction with any concrete feature of the ‘Constitution’ but expressed a more generic, inchoate, inarticulate unease, lack of enthusiasm not only for ‘more Europe’ but for Europe as it had become.

This early and less pathological ‘anti-European’ manifestation could not be explained away as a reaction to ‘the crisis’ – it occurred at a moment of prosperity and reasonably high employment. Europe was also riding high in the world, a promising contrast with America at its post-Iraq worst. Xenophobia was less à la mode and the immigrant issue less galvanizing – the supposed ‘invasion from the East’ was not a real issue. Europe was not ‘blamed’ for anything in particular, but it was clear that it had largely lost its mobilizing force. Read the rest of this entry…

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