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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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Tennyson’s “Locksley Hall”: A Disappointed Dream of Peace Through Law

Published on September 2, 2014        Author: 

In “L220px-Alfred_Lord_Tennyson_1869ocksley Hall”–a lesser known masterpiece of Alfred, Lord Tennyson (pictured left)–a soldier ruminates on the disappointments of his youthful passion and idealism. Below is an excerpt in which the narrator reflects on his earlier vision of a future of peace through international law and commerce and his later disillusionment with that dream. The poem is remarkably post-modern given that it was first published in 1842. Despite the skepticism of the modernist, internationalist project expressed in the poem, Winston Churchill reportedly called it “the most wonderful of modern prophecies,” and U.S. President Harry Truman–in office when the UN was formed with his strong support–is said to have carried it in his wallet.  Here is the excerpt:

Make me feel the wild pulsation that I felt before the strife,
When I heard my days before me, and the tumult of my life;Yearning for the large excitement that the coming years would yield,
Eager-hearted as a boy when first he leaves his father’s field,And at night along the dusky highway near and nearer drawn,
Sees in heaven the light of London flaring like a dreary dawn;

And his spirit leaps within him to be gone before him then,
Underneath the light he looks at, in among the throngs of men:

Men, my brothers, men the workers, ever reaping something new:
That which they have done but earnest of the things that they shall do:

For I dipt into the future, far as human eye could see,
Saw the Vision of the world, and all the wonder that would be;

Saw the heavens fill with commerce, argosies of magic sails,
Pilots of the purple twilight dropping down with costly bales;

Heard the heavens fill with shouting, and there rain’d a ghastly dew
From the nations’ airy navies grappling in the central blue;

Far along the world-wide whisper of the south-wind rushing warm,
With the standards of the peoples plunging thro’ the thunder-storm;

Till the war-drum throbb’d no longer, and the battle-flags were furl’d
In the Parliament of man, the Federation of the world.

There the common sense of most shall hold a fretful realm in awe,
And the kindly earth shall slumber, lapt in universal law.

So I triumph’d ere my passion sweeping thro’ me left me dry,
Left me with the palsied heart, and left me with the jaundiced eye;

Eye, to which all order festers, all things here are out of joint:
Science moves, but slowly, slowly, creeping on from point to point:

Slowly comes a hungry people, as a lion, creeping nigher,
Glares at one that nods and winks behind a slowly-dying fire.

The entire poem (which, I note, shows its age in its protagonist’s thoughts on women and non-European peoples) is available here.

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Transatlantic Dialogue on International Law and Armed Conflict : A Blog Series

Published on September 1, 2014        Author: 

In the middle of July, a group of academics and government lawyers gathered for two days at Oxford University to discuss issues related to current challenges pertaining to armed conflict and the applicable law. Participants came from both sides of the north Atlantic (the United States, Canada, the United Kingdom, and continental Europe), and from Israel, to share views on a variety of topics.

The interplay between international humanitarian law (IHL) and international human rights law (IHRL) was an issue that permeated the two day workshop, with an emphasis on the implications of recent court decisions. That discussion flowed into a conversation about accountability for violations of IHL, including an exploration of what the obligations are and how they are implemented. Given that many States are scaling down direct foreign military operations, the first day finished with a discussion on what partnered operations and security cooperation looks like, and how different bodies of law apply to these operations.

Issues relating to non-international armed conflicts, and again the overlapping areas of IHL and IHRL, were addressed on the second day, including whether and how rules applicable in international armed conflicts (IACs) could apply to non-international armed conflicts (NIACs), and a determination of when a NIAC ends and when IHL stops applying.

Some of those who attended the workshop are now participating in a series of blog posts focussing on specific topics that were addressed during the workshop. Three blogs, Intercross, EJIL:Talk!, and Lawfare, are coordinating the series, and will host the posts, outlined below. Each blog post supports the author’s perspective, and not necessarily that of anyone else at the workshop, or any of the institutions represented.

Schedule of blog posts:

  • Bobby Chesney, IHL and the End of Conflict, September 3rd on Lawfare
  • Ken Watkin, Overlap of IHL and IHRL: A North American Perspective, Part I, September 5th on Intercross
  • Sarah Cleveland, Harmonizing Standards in Armed Conflict, September 8th on EJIL:Talk!
  • Ken Watkin, Overlap of IHL and IHRL: A North American Perspective, Part II, September 10th on Intercross
  • Lawrence Hill-Cawthorne, Developing the Law of Non-International Armed Conflict: A view on the Harmonization Project, September 12th on EJIL:Talk!
  • Geoff Corn, Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility, September 15th on Lawfare
  • Guglielmo Verdirame, September 17th on Intercross

The event was organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations, the International Committee of the Red Cross Delegations for the United States and Canada and for the United Kingdom and Ireland, the South Texas College of Law, and the Robert S. Strauss Center for International Security and Law at the University of Texas.

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Announcement: Call for Papers on Global Governance

Published on August 30, 2014        Author: 

Call for Papers: 2015 Barcelona Workshop on Global Governance: The Public and the Private in Global Governance. IBEI (Institut Barcelona d’Estudis Internacionals) and ESADEgeo (ESADE Business School’s Center for Global Economy and Geopolitics) are organizing the third edition of the Barcelona Workshop on Global Governance, an international workshop that brings together scholars from international relations, international law, political theory and related disciplines to discuss questions relating to global governance. The workshop will focus on ‘The Public and the Private in Global Governance’ and will take place on 15 & 16 January 2015. Confirmed keynote speakers include Andrew Hurrell (University of Oxford) and Jonas Tallberg (University of Stockholm) as well as Narcís Serra (former Spanish Minister of Defense and Deputy Prime Minister) and Javier Solana (former NATO Secretary General and EU High Representative for Common Foreign and Security Policy). Abstracts of up to 500 words should be sent to info {at} bcnwgg(.)net by 29 September 2014. Further information is available at http://bcnwgg.net/.

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The International Court of Justice and the Judicial Function: Responses

Published on August 29, 2014        Author: 

I am very appreciative to Yuval Shany, Mary Ellen O’Connell, and Iain Scobbie for taking the time to engage so thoroughly with the arguments contained in my book; it has been a privilege to see my words and ideas through their own reactions, and to see the first public reactions to my writing.  The blog forum discussion makes it a challenge to respond fully to the many incisive points raised in their responses. However, with this brief reply, I wish to address some of the comments made, and in particular, to develop further a few arguments drawn from the book, in the hope of eliciting wider discussion. I will try to add address their points in turn.

Response to Yuval Shany

Yuval has chosen to engage primarily with the processual Part of the book (Chapters IV-VI, but also to a point the discussion on the Court’s exercise of certain powers in Chapter III). In that Part, I engaged with the Court’s deliberative process, its commitment to impartiality (and the particular form that such a commitment takes, given its institutional structure), and the justificatory reasoning the Court deploys in support of its conclusions, particularly its fairly strict adherence to its previous judgments. Yuval has pointed out my attempt to discern, if possible, a collective intent on behalf of the Court in drafting its judgments, and has rightly pointed out the ‘relatively low levels of doctrinal coherence’ in the Court’s judgments when taken as a whole, which make such a characterisation difficult.

He is correct that I emphasise the aspiration towards collective authority: it is an aspiration of the Court itself, which controls its own deliberative and drafting procedure, and which is found in its Resolution concerning the Internal Judicial Practice of the Court. The focus of my scrutiny over this particular question is not, however, merely a question of effectiveness: what I have sought to establish has been how the Court’s procedures, composition, and justificatory reasoning have together been tailored to secure the maximum possible authority for the Court qua institution. Given the fragility of certain of the Court’s institutional realities (raised by Mary Ellen, and to which I will turn shortly below), and the Court’s emphasis on its collective, universal and general character within the United Nations framework (and the international legal order, more broadly understood), such a claim represents the abandonment of the idea of the Court as a limited, bilateral dispute settlement organ. And it is precisely the fact that the Court has constructed formal, procedural authority for itself—and has been successful in cultivating support for this vision amongst other international actors!—which is of heightened relevance.

For the Court to make a legitimate claim to such authority requires, equally, a clear vision of the international legal order and the political community to which this legal order belongs. Thus, in the last chapters of the book, I argue that the Court’s interpretation of substantive international law has not kept pace with its claim to institutional authority. Yuval is perhaps correct that some of the tensions in the Court on questions such as the role of judicial precedent, the completeness of international law, and the legal effect of obligations erga omnes and norms of jus cogens may be due less to a complex doctrinal debate than the retention of ideas ‘selected for [their] ability to justify the preferred outcome’, and that the preservation of the Court’s influence depended on the outcome rather than on the reasoning. That is precisely my point: that one cannot parse the Court’s judgments carefully without a heightened understanding of the context in which it operates. Read the rest of this entry…

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