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Joint Blog Series on International Law and Armed Conflict: Ken Watkin on the Overlap between IHL and IHLR: Part II

Published on September 11, 2014        Author: 

BOG_Ken WatkinThe latest post in the joint blog series we are hosting with Lawfare and Intercross is Part II of Brigadier General (Rtd) Ken Watkin QC’s piece on “The Overlap between IHL and IHRL”. The piece  is posted on Intercross, where you can also find Part I. Ken Watkin was the senior legal adviser in the Canadian Armed Forces and, also  a former Stockton Professor of International Law at the US Naval War College. The joint series arises out of the 2nd annual Transatlantic Workshop on International Law and Armed Conflict, which took place in Oxford in July.

Ken begins his latest post in this way:

Last week, I described  the “exclusionary” approaches to the application of international humanitarian law (IHL) and international law human rights law (IHRL), which assume that one body of law will apply to the exclusion of the other. I also described how the approaches taken by the United States and Canada differ from those taken by European nations, the latter approach being influenced, in large part, by decisions of the European Court of Human Rights. However, the widely and often loudly debated exclusionary approaches do not actually represent how the law is being applied, particularly in a North American context. The reality of contemporary conflict is that both normative frameworks often need to be relied on concurrently. The application of human rights based norms occurs less through consideration of IHRL treaty law obligations than by operation of customary law obligations (both IHRL and IHL), the application of domestic law, or as a matter of policy. There is increasing recognition that Common Article 3 and Article 75 of Additional Protocol I apply as a matter of customary international law to international operations. Article 75 was clearly influenced by the 1948 Universal Declaration on Human Rights and the 1966 International Covenant on Civil and Political Rights. As then Professor Christopher Greenwood noted, the relationship between IHL and human rights law “is expressed in the adoption of major human rights principles in Article 75 AP I” [Christopher Greenwood, “Scope of Application of Humanitarian Law”, in Dieter Fleck, ed., The Handbook of International Humanitarian Law (2nd ed., 2008), 74, Rule 254.] Significantly, these human rights norms must be applied regardless of the geographic location of the armed conflict, thereby avoiding the intractable debate regarding the extra-territorial application of IHRL treaty law.

Read the rest on Intercross!

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EJIL: Live! – Episode 2

Published on September 11, 2014        Author: 

A new episode of EJIL: Live!, the Journal’s official podcast, is now available. Episode 2 of EJIL: Live! 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 interview was recorded at the European University Institute in Florence, Italy. Video and audio available here.

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Scottish Independence and EU Membership: Part I

Published on September 10, 2014        Author: 

Introduction

As the campaigns for and against Scottish independence move into their final rounds of sparring before the vote on 18 September, the question of Scottish membership of the European Union (EU) sits (relatively) quietly in the background. And no wonder: a question which involves the interaction between the complexities of international, EU and domestic law, as well as the vagaries of international politics is a headache for which the average voter has little appetite, and nuanced discussion of which is unlikely to win many votes. Nonetheless, the question of Scottish EU membership is of considerable practical importance if a ‘Yes’ vote is returned and raises very interesting legal issues. (For previous posts on this blog raising some of those issues, see here, here and here).

Due to the complexity (and controversial nature) of the issues involved, my analysis will be split into two posts. This first post sets out the broad position of the campaigns, explores the relationship between international law and EU law, and considers whether there is any merit in the view that an independent Scotland would become a member of the EU automatically (the ‘automatic succession’ argument). It is argued that the automatic succession argument is unpersuasive even as a matter of EU law. The second post will consider the arguments concerning the correct legal basis in the European Treaties for negotiated EU membership, as well as some of the problems involved in the negotiations, the consequences if they fail, and how such issues might come to be considered by the Court of Justice.

The position of those campaigning against Scottish independence is that if Scotland becomes independent, it would not be an EU member state, and would have to reapply to join, possibly languishing at the back of a queue of other applicant states.

The separatist position has been a somewhat movable feast. At one point, the Scottish Government suggested that an independent Scotland would automatically be a member of the EU and some eminent commentators, such as Aidan O’Neill QC, have also sought to defend that outcome (see here). However, the Scottish Government has now disavowed that position, and the White Paper recognises that EU membership would need to be negotiated after all (as does O’Neill, see: here). Nevertheless, it seeks to make the case that such negotiation would be seamless and therefore the risks of not being welcomed with open arms are small. Read the rest of this entry…

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Refusing to Negotiate Can Have Tragic Consequences

Published on September 9, 2014        Author: 

bellish2Jon Bellish is the Project Development Manager at the One Earth Future foundation and a fellow at the Ved Nanda Center for International & Comparative Law at the University of Denver Sturm College of Law.

On August 19, the Islamic State in Iraq and Syria (ISIS) released a video showing the beheading of American journalist James Foley, after the United States government refused to pay a nine-figure ransom. Foley’s execution prompted a debate about the propriety of paying ransoms:  on the one hand, paying can save the life of the captured hostage; on the other hand, paying ransoms fuels the very activity that gave rise to the need to pay a ransom in the first place.

Earlier this week, ISIS released another video, this one claiming to show the beheading of another American freelance journalist, Steven Sotloff. The video depicting Mr. Sotloff’s murder also showed another hostage, thought to be a British national, which has led to pressure on the U.K. government to negotiate with ISIS for his release. British Prime Minister David Cameron continues to remain faithful to the U.K.’s 40 year-old policy of not making concessions.

The United States also has a no-concessions policy and will not negotiate with hostage takers, and also encourages its citizens not to. Other countries have paid ransoms and secured the safe release of their citizens, including other journalists held by ISIS.

Which policy is the better one?  There appears to be momentum towards a ban on paying ransoms.  Because of the rise in kidnapping for ransom as a means of financing terrorism in recent years, in January 2014, the United Nations Security Council unanimously adopted a Resolution calling on states to refuse to pay ransoms to terrorists and also work with the private sector to respond to terrorist kidnappings without paying ransoms. On August 15, 2014, the Council issued Resolution 2170 directly addressing the various threats posed by ISIS. That Resolution expressed the Council’s determination to secure the safe release of hostages taken by terrorist groups without the payment of ransoms. Read the rest of this entry…

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Harmonizing Standards in Armed Conflict

Published on September 8, 2014        Author: 

Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

One of the consequences of the non-international armed conflicts (NIACs) of recent years has been widespread recognition that the current international humanitarian law (IHL) treaty framework regulating such conflicts is inadequate. One interim solution that some states have pursued has been to apply the rules developed for international armed conflicts (IACs) in conflicts with non-state armed groups.

The United States, Australia, Canada, the Netherlands, the United Kingdom, and others, for example, have issued guidance stating that their armed forces will apply IAC rules as a matter of policy in NIACs. And since 2009,the US has taken the position that “[p]rinciples derived from law-of-war rules governing international armed conflicts. . . must inform the interpretation of [its Guantánamo] detention authority.” Yet the extent to which states look to IAC principles as a means of delimiting their authority is unclear.

The Project on Harmonizing Standards for Armed Conflict, which I co-direct with Sir Daniel Bethlehem at the Columbia Law School Human Rights Institute, seeks to augment such efforts by exploring the extent to which the IAC treaty regime can be practically applied, as a matter of law, in NIACs.  The ultimate goal of the project is to help harmonize the IHL rules applicable in all armed conflicts to the higher standards established for IACs. States would adhere to the regime by registering a unilateral declaration of intent with an appropriate body, possibly the Swiss Federal Council (the depository for ratifications of the Geneva Conventions).  The resulting regime would be legally binding on that state as a matter of international law.

One consequence of the approach would be to substantially reduce the significance of characterizing a conflict as either an IAC or NIAC.  If successful, the project could help significantly raise the level of protection for individuals in non-international armed conflicts while clarifying a participating state’s IHL obligations.  More broadly, it could complement longer-term law reform efforts by demonstrating the feasibility of holding states to the higher standards of protection from IAC, and ultimately catalyse the development of a more harmonized regime of IHL legal standards. Read the rest of this entry…

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Announcements: Matrix Chambers seeks International Law Practitioners; Panel on Drones; Workshop on Legitimacy of International Courts, Call for Papers on the Legacy of the Palestine Mandate

Published on September 7, 2014        Author: 

1. Matrix Chambers, is looking to recruit additional members to complement its core International Law team. Matrix invites applications from experienced barristers, lawyers, and academics who have an established and exceptional international law practice, either in England and Wales, or in other jurisdictions. Matrix Chambers is a leading set of barristers with 70 members and 7 associate members and offices in London and Geneva. Individual members of Matrix Chambers have experience and expertise in a wide range of international law areas including maritime, humanitarian, environmental, boundary disputes, oil and gas disputes, investment treaty disputes, and disputes between States. Members of Chambers attract an increasing amount of private international law work in addition to the public international law cases for which they are renowned for, along with a commitment to developing non-litigation work, including advisory work on Corporate Social Responsibility, investigatory work, and international mediation. The successful candidates will need to demonstrate that they are outstanding International Law practitioners with a strong reputation in the international arena, who support the Core Values of Matrix. Application packs can be obtained by e-mailing recruitment {at} matrixlaw.co(.)uk or calling +44 (0)20 7404 3447. The deadline for receipt of applications is Friday 12th September 2014. Any potential applicants who wish to discuss their application may contact Practice Manager Paul Venables (paulvenables {at} matrixlaw.co(.)uk) or the International Law group coordinator Professor Zachary Douglas (zacharydouglas {at} matrixlaw.co(.)uk). The full advert is available  here

2.  The International Law Committee of the New York City Bar Association will host a panel discussion on the international legality of U.S. drone strikes on 10 September in New York City. The Panellists are John Bellinger, former Legal Adviser to the US State Dept, Sarah Knuckey (Columbia Law School), James Ross (Human Rights Watch), Scott, Shane (New York Times) with Rory Millson (Cravath Swaine & Moore) moderating. The panellists will react to the New York City Bar’s report on this topic which was released in June. F’or more details including venue, see here.

3. PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo – together with University of Copenhagen Centre of Excellence for International Courts – iCourts, is organizing a combined workshop and PhD course on the Legitimacy of International Courts and Tribunals in Oslo, 24-25 November 2014. This workshop explores, assesses and applies different perspectives and standards of legitimacy, and brings such considerations to bear on ICs in four different sectors of international law: human rights, investment, trade, and international criminal law. We invite for full or draft papers that address the following aspects of legitimacy of ICs: (1) rule of law standards; (2) accountability; (3) output and effects; (4) societal acceptance and compliance; and (5) conceptual issues of legitimacy within the sectors human rights, investment, trade, and international criminal law. The deadline for abstracts is 15 September 2014. More information is available here.

4.  Call for Papers: Legalities and Legacies: The Past, Present, and Future of the Palestine Mandate in International Law, Jerusalem, 21-22 June 2015. The Faculty of Law of the Hebrew University of Jerusalem and the Columbia Law School invite the submission of written proposals for an international conference on the international law legacies of the Palestine mandate, to be held in Jerusalem on 21-22 June 2015, and for a subsequent publication. Recipients of this call for papers are invited to submit proposals to present a paper at the conference. Some authors of proposals selected for the conference will be offered partial or full coverage of flight and accommodation expenses. The full call for papers can be found here.  Submissions: Researchers interested in addressing these and related questions are invited to respond to this call for papers with a 1-2 page proposal for an article and presentation, along with a brief CV, including a list of publications. Proposals should be submitted by email to Dr. Rotem Giladi of the Hebrew University of Jerusalem (pmilconf {at} gmail(.)com) no later than 30 September 2014. Applicants should expect notification of the Conference Academic Committee’s decision by early November 2014. Written contributions (of 10,000-12,000 words), based on the selected proposals, will be expected no later than 15 April 2015.

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Transnational Dialogue on International Law and Armed Conflict: Ken Watkin on the Overlap between IHL and IHRL

Published on September 6, 2014        Author: 

BOG_Ken WatkinThe latest post in the joint blog series on International Law and Armed Conflict was posted yesterday on Intercross (the blog of the ICRC). The post is by Brigadier Gen (Rtd) Ken Watkin QC, former Judge Advocate General (i.e the head legal adviser) in the Canadian Armed Forces and former Stockton Professor of International Law at the United States Naval War College. Ken’s post is on the overlap between international humanitarian law and international human rights law. He starts by saying that:

It is possible to address the perennial debate about the relationship between international humanitarian law (IHL) and international human rights law (IHRL) from a number of perspectives. In these posts, I would like to set out some of the issues that deserve close attention. First, there is the strategic theoretical conflict that continues to play out between the advocates of exclusionary applications of IHL and IHRL. This is a conflict that is firmly grounded in different views emanating from each side of the Atlantic. Secondly, there are the different perspectives brought to this issue based on the unique North American (in this context the United States and Canada) and European legal systems, as well as differing geographic and experiential factors. Thirdly, there is the ongoing reliance on customary international law, domestic law and policy to assist in resolving what appears on its surface to be an intractable theoretical impasse. Finally, notwithstanding the exclusionary debate the reality is that military forces are applying both IHL and IHRL norms during contemporary operations, although approaches that seek to uniquely apply one legal framework over the other will continue present operational challenges.

The requirement to consider human rights during contemporary military operations arises in a number of ways. Often it occurs in the context of the use of force, particularly when military forces interface with civilians who are not direct participants in hostilities. Operations can involve the detention of insurgents, terrorists, and persons providing indirect support to organized armed groups; the quelling of civil disorder and unrest; and the arrest of members of criminal organizations taking advantage of the general disorder often associated with armed conflict. These situations can arise during inter-State conflict (i.e. occupation), as well as comprise a significant component of counterinsurgency and counterterrorism operations. 

The full post is available on Intercross here

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ESIL Prizes Announced

Published on September 5, 2014        Author: 

This evening the European Society of International Law, at its 10th Anniversary Conference in Vienna, announced the winners of the ESIL Prize: Sandesh Sivakumaran, for his book The Law of Non-International Armed Conflict (OUP, 2012) and Ingo Venzke, for How Interpretation Makes International Law: On Semantic Change and Normative Twists (OUP, 2012). Many congratulations to both!

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Joint Blog Series on International Law and Armed Conflict: Bobby Chesney on “When Does LOAC Cease to Apply”

Published on September 5, 2014        Author: 

As indicated earlier this week, EJIL:Talk! is partnering with Lawfare and Intercross (blog of the International Committee of the Red Cross) to publish a series of posts arising out of the 2nd Transatlantic Dialogue on International Law and Armed Conflict (which took place in Oxford in July of this year). On Wednesday Bobby Chesney, the Charles I. Francis Professor in Law at the University of Texas School of Law, and one of my co-convenors of the transatlantic workshop, kicked off the series with a post exploring the interesting question: “When does LOAC cease to apply?”

Bobby, introduced his post by saying:

“People sometimes speak of peacetime and wartime as sharply demarcated, their factual foundations and legal consequences being clearly distinct from one another. Everyone here will appreciate that it is not always or even often so simple, as Mary Dudziak has documented so richly in her recent book WAR TIME: AN IDEA, ITS HISTORY, ITS CONSEQUENCES. Circumstances of violence can occur across a broad spectrum of intensity, with the nature and intensity of events rising or falling in unexpected ways (and places) over time. Even the parties themselves can undergo sweeping changes. Small wonder, then, that we lawyers spend so much time wrestling with the details of IHL’s field of application.”

He then explained that:

Usually we approach the field-of-application question from the front-end, which is to say we talk about whether a given situation of violence has crossed over into the realm of armed conflict, bringing IHL to bear (and thus also complicating the question of IHRL’s role). It is a particularly vexing issue in the context of potential NIACs”

However, less attention has been paid to the back-end of the armed conflicts, particularly to the question of when a NIAC is to be regarded as having ended. This is the focus of Bobby’s post. He considers various options for assessing when IHL should cease to apply, examining the approach set out in the ICTY Appeals Chamber’s famous Tadic case (that IHL applies until a “peaceful settlement is achievement”), as well as whether the test for determining whether a NIAC exists at the front end of the conflict should be applied for determining whether it has terminated.

You can read Bobby’s post in full over on Lawfare.

For a list of other scheduled posts in this series, see here

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Sovereign Debt Litigation Against Argentina: An Aberration or A New Routine?

Published on September 4, 2014        Author: 

hayk

Hayk Kupelyants is a PhD candidate at Sidney Sussex College, University of Cambridge.

Argentina’s 2001 economic crisis led to one of the most extensive sovereign debt restructurings in history. In hindsight, it was also one of the harshest, in terms of Argentina’s negotiating stance and the losses incurred by bondholders. Ninety-three percent of holders of Argentine sovereign bonds eventually accepted the terms of two restructurings in 2005 and 2010, but seven percent of bondholders, holding an approximate US $4 billion of Argentine sovereign bonds “held out,” or declined to accept restructured bonds. The plaintiffs in the litigation discussed in this post hold US $1.7 billion, which they seek to recover through litigation in US courts.

NML Capital and other hedge funds purchased the Argentine bonds on the ‘secondary market’, i.e. on the market of previously issued financial instruments, from the original owners of bonds. The business model of hedge funds specialising in distressed debt is to purchase sovereign debt or judgments against a sovereign on the secondary market at a deeply reduced price to their par and, by consistently holding out from the renegotiation process and aggressively litigating, recover the full value of the bonds. The Argentine bonds purchased by the hedge funds contained choice of forum clauses in favour of New York courts, choice of law clauses in favour of New York law and broad waivers of sovereign immunity. The combination of these clauses should havemade the effort of recovering the debt much less painful. However, the hedge funds’ continuous efforts  to enforce US judgments in their favour around the world have so far been modestly successful at best.

In the view of many, the balance of powers may change as a result of the recent US litigation. The US court litigation discussed in this blog post has been called ‘the trial of the century’ or the litigation that will change the landscape of sovereign debt restructurings. It has been remarkable, as the hedge funds have come close to being repaid under the bonds purchased on the secondary market. In an unprecendented turn of the litigation, the holdout creditors have obtained third-party injunctions from US courts that have driven a sovereign state to default. Read the rest of this entry…

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