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Silencing the Canary: the lawfulness of the U.K. Investigatory Powers Bill’s secrecy provisions under the ECHR

Published on May 17, 2016        Author: 

Following the Snowden revelations in 2013 concerning the complicity of the tech industry in widespread electronic government surveillance in the U.S., tech companies have individually and collectively become increasingly active as advocates of privacy and free speech rights, culminating in legal challenges to government electronic surveillance.

Since the dropping by the U.S. Department of Justice (DOJ) of its much publicised writ against Apple, which sought to compel Apple to hack the security key code system of the Apple iPhone 5, the battle between tech companies and the DOJ over privacy and encryption in the U.S. has taken another turn.  In April, Microsoft filed a suit in the District Court of Seattle against the DOJ challenging the ‘secrecy order’ provisions (a range of anti-tipping off and gagging powers) under the Electronic Communications Privacy Act (ECPA).

With the Investigatory Powers Bill (IPB), which contains similar secrecy requirements, currently being debated before the U.K. Parliament, the U.S. case provides fair warning of possible human rights challenges tech companies may bring against the U.K. government. This post will consider the implications of the Bill’s secrecy provisions in light of the rights of tech companies under the European Convention on Human Rights (ECHR).

The Microsoft – DOJ claim                                                 

In short, the ECPA allows a U.S. government agency to apply to the Court for a warrant requiring Microsoft, or any other internet company, to hand over their customers’ private data. In addition, an order can be made by the court preventing the company from publicising the fact that they have been required to disclose the data. Read the rest of this entry…

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Announcements: Max Planck Group Leader in Bogotá; UN Audiovisual Library of International Law

Published on May 15, 2016        Author: 

1. Max Planck Group Leader in Bogotá, Colombia. The Max Planck Institute for Comparative Public Law and International Law (Heidelberg) and Universidad de Los Andes (Bogotá, Colombia) are looking to hire a Principal Investigator to lead a newly established Max Planck Tandem Group in Transformations of Public Law. Other than research, responsibilities include supervision of two doctoral students at Universidad de Los Andes. There is no mandatory teaching load. The Group will be located in Bogotá, and the Leader will be expected to reside in that city. The initiative will provide funding for at least one extended research stay per year of the Group at the Max Planck Institute for Comparative Public Law and International Law. Additional information may be found here. The deadline for applications is 15 May 2016.

2. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs recently added a mini-series on “Droit de la responsabilité internationale” by Professor Mathias Forteau to the UN Audiovisual Library of International Law. The mini-series consists of the following four lectures: “Sources et évolution du droit de la responsabilité internationale”, “La réclamation en responsabilité internationale”, “Les conditions d’engagement de la responsabilité internationale”,  and “Le contenu et la mise en œuvre de la responsabilité internationale”.

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The Admissibility of a Claim of Continental Shelf Rights Beyond 200nm Before an International Tribunal Absent a Recommendation by the CLCS: A Few Words About the ICJ’s 2016 Judgment in Nicaragua v. Colombia

Published on May 13, 2016        Author: 

The International Court of Justice (ICJ) recently set the arena for a timely discussion of the question of the admissibility of a claim of continental shelf rights beyond 200 nm, absent a recommendation by the Commission on the Limits of the Continental Shelf (CLCS). The litigation concerned the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (NICOL II). In its 17 March 2016 Judgment on Preliminary Objections, the ICJ dismissed Colombia’s preliminary objections against the jurisdiction of the Court and the inadmissibility of Nicaragua’s first claim. While the ICJ upheld Colombia’s contentions against the admissibility of Nicaragua’s second submission – a rather unusual request for the establishment of a provisional regime of conduct in the area of overlapping entitlements pending delimitation – the case will now move to the merits with respect to Nicaragua’s request for the Court to adjudge and declare:

“The precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to each of them beyond the boundaries determined by the Court in its Judgment of 19 November 2012.”

This post will focus on the decision of the ICJ to reject, by 11 votes to 5, Colombia’s overarching claim on inadmissibility. ICJ’s 2016 ruling seems to definitely settle the doctrinal debate concerning admissibility of maritime rights beyond 200 nm without exhaustion of the procedure in UNCLOS Article 76(8). Read the rest of this entry…

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Response to Başak Çali’s ESIL Reflection: The Disciplinary Account of the Authority of International Law

Published on May 12, 2016        Author: 

In a recent ESIL Reflection, Başak Çali addresses the sufficiency of the standard view on the form and justification of the authority of international law against some of the key critical challenges: effectiveness, democratic legitimacy, and domination. Çali’s argument is that “the relaxed view of consent as well as a commitment to neutrality embedded in the standard view are able to respond to most external critiques”, but the either/or account of authority is the weak point in the standard conceptualization. This is because it strengthens the projection of international law as a source of domination, when in fact, attention to the details and practice of international law reveals that it often leaves considerable space for autonomous action by states.

In this post, I attempt to shed further light on some of Çali’s main arguments. I comment on Çali’s focus on international law as a whole; the treatment of the issue from the perspective of all states; and the proposal for a new set of classifications to order the form of international law’s authority.

The Authority of International Law as a Whole

I agree with Çali, it is important for theorizing on the authority of international law – the explanation for its ‘right to rule’ – to be empirically informed. I wonder, though, about the readiness of Çali to accept the standard, long-serving consent explanation as still sufficient. Could this be due to Çali’s focus on explaining the authority of international law as a whole? Might an initial sector specific analysis of practice lead to greater interest in the presentation of consent as sufficient? Read the rest of this entry…

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Securing the Right to Life: A cornerstone of the human rights system

Published on May 11, 2016        Author: 

The right to life has been described as the ‘supreme’ or ‘foundational’ right. Efforts to ensure other rights can be of little consequence if the right to life is not protected.

In the broadest sense, the prohibition of the use of force except under narrowly defined circumstances, both in armed conflict and interpersonally, reflects a pre-occupation with the protection of this core human value. The criminal justice and other mechanisms of investigation are also aimed at ensuring the protection of life. The linkage of the term ‘right to life’ to a specific position in the debate about abortion in the North American context hardly does justice to the terrain covered by this concept.

The duty to respect and protect the right to life manifests itself on numerous terrains: The excessive use of force by law enforcement agencies or others (such as hit squads whose actions can be attributed to the state); the death penalty; the responsibility of states for the lives of those in their custody (for example in prisons); and the failure to exercise due diligence to protect members of the public from violence by other individuals or groups. The right to life also continues to apply during armed conflict. A violation of the right to life is irreversible. It is for this reason that it is important to underline that the protection of the right to life has two components: the prohibition of arbitrary deprivations of life, and accountability where they occur. A lack of accountability in itself constitutes a violation of this right.

The right to life is a well-established and developed part of international law, in treaties, custom, and general principles, and, in its core elements, in the rules of jus cogens. Its primacy and the central features of the prohibition on arbitrary deprivations of life are not contested. Nonetheless, in practice, life remains cheap in many parts of the world. This is true in the many armed conflicts that are raging, but also outside such conflicts, where police and others authorised or tolerated by states often use excessive force, or there is a failure to investigate homicides.

The great importance attached to this right is reflected in a flurry of recent developments in this field, aimed at setting out the norms more clearly or ensuring their better realisation. We have been pleased to be able to contribute to several of them: Read the rest of this entry…

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New Drone Report by UK Parliament’s Joint Committee on Human Rights

Published on May 10, 2016        Author: 

Following up on yesterday’s post on the Eye in the Sky, today the UK Parliament’s Joint Committee on Human Rights published an important new report on the UK’s resort to drone strikes. Most interestingly, the report contains a number of clarifications of the UK’s policy on drone strikes, on the basis of the evidence obtained by the Committee, especially in situations outside active armed conflict. One of the report’s conclusions is that the UK does, in fact, reserve the right to use drones outside armed conflict, and that such strikes would be governed by human rights law rather than the law of war, but that in limited circumstances such strikes could be lawful. The report also calls on the UK Government to respond with further clarifications. As a general matter the report is written clearly and the legal analysis is reasonably nuanced and rigorous.

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Eye in the Sky

Published on May 9, 2016        Author: 

Last week I had the pleasure of seeing the new movie starring Helen Mirren and the late great Alan Rickman, Eye in the Sky. I was simply floored. Not only is Eye in the Sky an example of film-making at its best, with intelligent pacing and stellar acting throughout, it is also one of the most sophisticated treatments that I have seen of the legal, policy and moral dilemmas that people who make targeting decisions are faced with. It even has words like necessity and proportionality in it, and generally used correctly at that! I could totally envisage a vigorous classroom discussion of the various issues raised after every ten minutes of the movie. I just couldn’t recommend it more for anyone even remotely interested in the legal and moral aspects of targeted killings by drones.  *MINOR SPOILERS FOLLOW*

Read the rest of this entry…

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Announcements: AgLaw Colloquium Call for Submissions; UCL Journal of Law and Jurisprudence Call for Submissions

Published on May 8, 2016        Author: 

1. AgLaw Colloquium Call for Submissions. The Scuola Superiore Sant’ Anna and the Institute of Law, Politics and Development are accepting proposals for the 2016 AgLaw Colloquium on Agri-Food and Environmental Regulatory Agenda in Regional Trade Agreements: Legal Implications and Trends on 20-21 October 2016. Submission forms are due on 16 May 2016. For more details, please see the complete call here.

2. UCL Journal of Law and Jurisprudence Call for Submissions. The Editorial Board of the UCL Journal of Law and Jurisprudence is pleased to call for submissions for the second issue of 2016. This will be our ‘City Issue’ and the Editorial Board welcomes submissions that engage with this general theme. The topic is broadly conceived and leaves scope for any area of law or jurisprudence (domestic, regional or international) that is deemed to be ‘City’ related. Submissions could be theoretical, doctrinal or aimed at practice. The deadline for submissions is 15 May 2016. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website.

 

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New EJIL:Live! Joseph Weiler and Robert Howse Discuss The World Trade Organization 20 Years On: Global Governance by Judiciary

Published on May 5, 2016        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Robert Howse of the New York University School of Law, about his EJIL Foreword article, “The World Trade Organization 20 Years On: Global Governance by Judiciary”, which appears in EJIL, Volume 27, Issue 1. The EJIL Foreword, published each year in the first issue of the Journal, is designed to enable a distinguished scholar to undertake a more extensive analysis, conceptualization, or systemic theorization than is usually possible in an EJIL article. Robert Howse’s contribution surveys the first two decades of judicial decision-making and judicialization under the auspices of the World Trade Organization. This conversation goes behind the scenes of the writing of the Foreword, in a manner of speaking, giving readers additional insights into the author’s theorization and approach to understanding the Appellate Body’s first 20 years. As the author remarks, “What I’m trying in part to discern is a set of underlying policies that the Tribunal has developed to manage some of the key legitimacy challenges and dilemmas facing it.” The interview was recorded at the New York University School of Law.

The EJIL: Talk! blog welcomes comments and reactions to EJIL: Live!

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A “Hybrid” Tribunal for Daesh?

Published on May 4, 2016        Author: 

On 21 April 2016, Professor Robert Cryer published a concise analysis of the possible consequences of a resolution adopted by the UK House of Commons a day earlier, including of a possible referral of the situation involving crimes – war crimes, crimes against humanity, and, in particular, genocide – committed by members of Daesh to the International Criminal Court (ICC). Although Professor Cryer noted, quite appropriately, that “political realities in the S[ecurity] C[ouncil] mean that there may be a veto on a resolution sending the matter to the ICC”, there are even more limitations to the likelihood of this proposal. This post briefly discusses these other limitations and suggests an alternative way to proceed.

Legal and Practical Limitations of the ICC Jurisdiction

It is unlikely that the ICC would get to deal with Daesh’s crimes in the foreseeable future. The Court does not presently have territorial jurisdiction with respect to the situation in Syria and Iraq, since neither of these States is a Party to the Rome Statute. Theoretically, the Court might exercise personal jurisdiction with respect to crimes committed by foreign members of Daesh who are nationals of States Parties to the Statute – but this is also unlikely, by virtue of the ICC principle of complementarity: if such individuals are found in the territory of a State Party to the Rome Statute, they are likely to be handed over to the States of which they are nationals, or to be tried in the State where they are apprehended (aut dedere aut judicare).

In turn, the likelihood of the situation in Syria being referred to the ICC by the UN Security Council is close to zero, because such a referral would imply the Court’s jurisdiction not only with respect to crimes under international law committed by members of Daesh (for the concept of crimes under international law, see: G. Werle and F. Jessberger, Principles of International Criminal Law, p. 32) but also with respect to those committed by Syrian armed forces, their internal opponents, and – last but not least – by members of foreign armed forces currently present in the country. Yet, there seem to be further good reasons not to refer the situation involving crimes committed by members of Daesh to the ICC at all, but to follow an alternative route. Read the rest of this entry…

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