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Announcements: CfP International Law of Military Operations; BIICL Annual Grotius Lecture & Dinner; Hamburg International Environmental Law Conference; Additions to UN Audiovisual Library; Colloquium on Emotions and International Law; Global Governance Summer School; IGLP Workshop; Student Writing Competition; International Law Literature Forum

Published on March 13, 2016        Author: 

1. Call for Papers: The International Law of Military Operations – Mapping the Field. Military deployments in the territory of other States are subject to a diverse range of rules under international law. In recent years, it has become increasingly common to refer to these rules as ‘operations law’ or the ‘international law of military operations’. The purpose of this conference, from 21 – 23 June 2016, in Exeter, UK, is to develop our understanding of the international law of military operations from a comparative and practical perspective. It is with great pleasure that the International Society for Military Law and the Law of War and Exeter Law School invite subject matter experts to submit their proposals for presenting a paper at the conference. See here for further information on particular topics of interest and the submission process. Proposals must be submitted by 8 April 2016.

2. BIICL Annual Grotius Lecture and Dinner 2016. The BIICL Annual Lecture and Dinner will take place on 21 March 2016 at the Law Society in London. The lecture will be delivered by The Rt Hon. Lady Justice Arden DBE, Head of International Judicial Relations for England and Wales, on the subject:’Water for All? Developing a Human Right to Water in National and International Law’. The lecture will be chaired by the President of BIICL, The Right Honourable The Lord Phillips of Worth Matravers KG PC. The lecture is followed by a networking drinks reception and an optional dinner is available to those attendees looking to extend their evening. David Anderson QC will deliver a speech during dinner entitled ‘Responding to Terrorism’. David’s speech will touch on the UK’s response to the terrorist threat, drawing on his personal observations as Independent Reviewer. Find out more and book online here.

3. Hamburg International Environmental Law Conference 2016. The HIELC 2016 will take place on 15-16 April 2016 under the title “A Sea Change for Sustainable Ocean Resource Governance”. High ranking experts from all over the world will address the fragile balance between the economically efficient use of ocean resources and the preservation of the ocean’s ecosystem in their presentations and in the subsequent working groups. Furthermore, the conference offers a forum to international and interdisciplinary academics and practitioners to share their insights. For further information and registration, please see here.

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Salami Slicing Human Rights Accountability: How the European Border and Coast Guard Agency may inherit Frontex’ genetic defect

Published on March 10, 2016        Author: 

Salami slicing is the exercise of dividing one salami sausage into many smaller pieces in the shape of slices. Slices have some advantages over the whole piece. Figuratively speaking, actions that are illegal or difficult to achieve as a whole may become easier, legal, or harder to detect if ‘sliced’ into a series of small actions. The ‘salami slicing’ metaphor is typically used pejoratively to describe practices that take advantage of the benefits that the accumulated ‘slices’ have over the whole, such as stealing or embezzling very small quantities of money repeatedly, or publishing fractions of one research that would form one meaningful paper in several small papers. As discussed in the following piece, something similar can be observed in relation to accountability for human rights violations that may occur during border control operations conducted jointly by several EU member states under the auspices of the EU agency Frontex. Regrettably, this structural shortcoming in the set-up of joint operations coordinated by Frontex is one that the new European Border and Cost Guard Agency is likely to inherit.

The proposal for a new European Border and Coast Guard Agency (EBCGA) was published by the European Commission on 15 December 2015. The plan is to significantly enhance Frontex’ mandate and to reflect those changes in renaming it. The new agency will dispose of considerably increased human and financial resources and gain substantial powers, such as requiring a member state to take ‘corrective measures’ to address ‘upcoming challenges’ at its external border, a possibility to intervene without invitation where it identifies serious deficiencies in a member state’s external border management, additional competences to cooperate with and operate in third countries, and an enhanced role in return operations (for a concise overview see here).

The proposal is part of a package of measures aimed at protecting the area without internal borders by strengthening its external borders. It comes in the midst of the escalating migration crisis Read the rest of this entry…

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Ukraine vs. Russia in International Courts and Tribunals

Published on March 9, 2016        Author: 

In early January 2016, Ukraine affirmed its intention to bring a claim against Russia before the ICJ under the International Convention for the Suppression of the Financing of Terrorism (‘Financing of Terrorism Convention’). Further announcements were made in late January and February 2016 as to both an additional claim in the ICJ under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and a claim under the United Nations Convention on the Law of the Sea (UNCLOS). This post provides a brief overview of pending and prospective cases originating from the conflict between Russia and Ukraine.

Cases pending before international court and tribunals

Ukraine is currently seeking to challenge Russia’s actions on its territory in the European Court of Human Rights and the International Criminal Court. Three inter-State cases initiated by Ukraine concerning Russia’s actions in Crimea and Eastern Ukraine are currently pending before the ECtHR (the first inter-State case by Ukraine against Russia was discussed here). In September 2015, Ukraine also lodged a Declaration under Article 12(3) of the Rome Statute of the International Criminal Court recognising its jurisdiction with respect to the acts committed on its territory since 20 February 2014. It is true that acceptance of the jurisdiction of the ICC by Ukraine may not necessarily lead to the prosecution of Russian citizens fighting in the Eastern Regions. It is, nonetheless, another avenue used by Ukraine to put the conflict between the two States before international judges.

Russia’s actions in Crimea and Eastern Ukraine have also resulted in individual cases brought against Russia at the international level under international human rights law and international foreign investment law. As of October 2015, more than 1,400 applications seemingly related to the events in Crimea or Eastern Ukraine, lodged against both Russia and Ukraine or against one of those States, are pending before the ECtHR.

Several cases were initiated before the PCA against Russia under UNCITRAL rules apparently concerning investments located in Crimea. One of these cases, for instance, concerned interference with property situated in Crimea. Incidentally, in reply to the commencement of the arbitral proceedings in this case, Russia sent a letter stating that it did not recognise the jurisdiction of the arbitral tribunal. Despite Russia’s request not to regard the letter as consent to participation in arbitral proceedings, Read the rest of this entry…

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Announcements: Second Thessaloniki Summer Course; EU’s Response to the Refugee Crisis; Interaction Between Human Rights: 50 Years of the Covenants; AHRI Call for Submissions; CfP Climate Refugees: Beyond the Legal Impasse?

Published on March 6, 2016        Author: 

1. Second Thessaloniki Summer Course. The Kalliopi Koufa Foundation for the Promotion of International and Human Rights Law is delighted to announce that the Second Thessaloniki Summer Course to be hosted by the Foundation in the historical city of Thessaloniki from 27 June to 8 July 2016 will deal with the ever-increasing importance of International Environmental Law and is titled “International Environmental Governance: Contemporary Challenges and Prospects”. Registration is now open. Prospective applicants may take advantage of the early-bird application fee. For more information, see here.

2. The EU’s Response to the Refugee Crisis. The International Law Programme at Chatham House will be hosting a meeting on ‘The EU’s Response to the Refugee Crisis: Prospects for Greater Cooperation?’ on 9 March 2016 at Chatham House. The meeting will consider the possible EU policy responses to the refugee and migrant crisis and whether there is a way to reconcile national and strengthen compliance with international refugee law. For further details and to enquire about registering see here.

3. Interaction Between Human Rights: 50 Years of the Covenants. INTRAlaw (International and Transnational Tendencies in Law) is organising a workshop on 29–30 September 2016 on the theme of ‘Interaction between human rights: 50 years of the Covenants’. The colloquium will bring together scholars working on the interaction within the human rights regime on the international, regional and domestic planes. What is of interest is the way that the two covenants have influenced each other in their legal development; and, significantly, the way that different human rights systems have influenced each other in the definition and implementation of these rights. Particular attention will be given to the activities of the Human Rights Committee and the Committee on Economic Social and Cultural Rights, and their role in interpreting and driving implementation of the ICCPR and the ICESCR. INTRAlaw has issued a call for papers for the workshop. See here for further information. Abstracts must be submitted by 15 April 2016.

4. AHRI Call for Submissions. The Association of Human Rights Institutes (AHRI) calls for the submission of proposals for papers to be presented at the general AHRI Human Rights Research Conference held at the Netherlands Institute of Human Rights (SIM) in Utrecht, the Netherlands, on 2-3 September 2016. The title of the conference is “50 Years of the Two UN Human Rights Covenants: Legacies and Prospects”, and the conference will have six thematic tracks: indivisibility and interactions of norms and regimes; citizenship, migrants and refugees; non-state actors and human rights; EU and human rights; the global economy and human rights; and new avenues in human rights research. Find the full call for papers here.  

5. Call for Papers: Climate Refugees: Beyond the Legal Impasse? A One-Day Workshop will be held at the University of East Anglia, Norwich, UK, on 4 July 2016. The aim of this workshop is to address a fundamental gap in academic literature and policy making; namely the legal ‘no-man’s land’ in which the issue of climate refugees currently resides. Papers which address the following areas will be considered: Questions of international rights and responsibilities; the role of international institutions; legal interactions and tools for systemic integration; the relevance of the emerging concept ‘environmental justice’ to climate refugees, and creative future pathways and ways to overcome the impasse. Please send the title of your proposed paper along with a 200-word abstract and your contact details to avidan.kent {at} uea.ac(.)uk by 15 April 2016. For further information please email Dr Simon Behrman s.behrman {at} uea.ac(.)uk . See here for further details.

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AJIL Unbound Symposium on the Crime of Aggression

Published on March 3, 2016        Author: 

In June 2010, parties to the Statute of the International Criminal Court (ICC) meeting in Kampala, Uganda agreed amendments to the ICC Statute which would allow the ICC to prosecute the crime of aggression. However, they also agreed that the Court would only be able to exercise jurisdiction with respect to the crime of aggression subject to a further decision to be taken after 1 January 2017 and only after the ratification or acceptance of the amendments by thirty States Parties [Arts. 15bis(2) & (3); Arts. 15ter(2) & (3), ICC Statute].  In 2010, this may have seemed a long delay before the Court would be able to exercise jurisdiction over the crime. However, with 26 ratifications or acceptances of the amendments and more seemingly to follow, ICC jurisdiction over aggression appears to be just round the corner. This is therefore a good time to give serious consideration to the implications that ICC jurisdiction over the crime of aggression will have both with regard to international law but also in international politics.

The American Journal of International Law’s online Companion AJIL Unbound has just published a symposium on the crime of aggression under the Statute of the International Criminal Court, which I had the pleasure of editing. The symposium publishes a number of responses to the lead article in the April 2015 issue of the American Journal of International Law by Harold Koh and Todd Buchwald: “The Crime of Aggression: The United States Perspective“, 109 AJIL 257, 292 (2015). In that piece, Harold Koh and Todd Buchwald, both of whom were leaders of the U.S. delegation at the Kampala review Conference, consider a range of issues raised by the impending activation of the ICC’s jurisdiction over the crime of aggression. They provide a critique of the definition of the crime of aggression provided for in the amendments to the ICC Statute agreed in Kampala, Uganda in 2010; examine issues relating to the jurisdiction of the Court and domestic courts over that crime; and consider the role of the Security Council with respect to aggression. One of the main focuses of their piece is a consideration of how best to prevent the new jurisdiction over the crime of aggression from chilling uses of force they consider legitimate, particularly humanitarian intervention that is not authorized by the Security Council. In the July 2015 issue of the American Journal of International Law, Alain Pellet and Bing Bing Jia respond to Koh and Buchwald. The AJIL Unbound symposium, in addition to an introduction by me, includes four pieces which provide further consideration of issues relating to the crime of aggression and some responses to the Koh & Buchwald article.   Read the rest of this entry…

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New German Constitutional Court Decision on “Treaty Override”: Triepelianism Continued

Published on February 29, 2016        Author: 

By Court order of decision of 15 December 2015 (2BvL 1/12), published only recently, the German Constitutional Court (second Senate) has confirmed the practice of treaty override in tax law. The euphemism “treaty override” means that the German legislator adopts a law which violates a prior international treaty (often a treaty on double taxation). The Federal Tribunal on Finances (Bundesfinanzhof) had doubts about the constitutionality of this practice. It was convinced that a recent amendment of the Income Tax Act which is incompatible with a German-Turkish dual taxation treaty of 1985 is unconstitutional, exactly because it violates the treaty.

If in a pending judicial proceeding, a German court is convinced that a legal provision, which it needs to apply to resolve the case under scrutiny, is unconstitutional, that court must stay the proceeding and pose a reference question on the law’s constitutionality to the German Constitutional Court (Art. 100(1) German Basic Law). Such a reference procedure guarantees that the Constitutional Court retains the monopoly for declaring a law unconstitutional, and is thus a hallmark of the concentrated system of constitutional control in Germany.

Translation into constitutional questions
The judicial proceeding under Art. 100(1) Basic Law is available only for questions of constitutionality, not for questions of compatibility with international law. This worked, because the courts involved in fact “translated” the question of the relationship between international law and domestic law into a constitutional law question of the separation of powers and of constitutional principles: rule of law versus democracy.

The Federal Tribunal on Finances deemed the treaty override unconstitutional for violation of the rule of law and of the German constitutional principle of “friendliness towards international law” (“Völkerrechtsfreundlichkeit”).

The Constitutional Court did not follow this view. It opined that the constitutional principle of democracy (which includes the principle of discontinuity of parliament following elections) demands that the German Parliament is free to change its mind and to make or amend a law even if this violates an international treaty which had been ratified by a previous Parliament (Order of 15 Dec. 2015, paras 53-54). Read the rest of this entry…

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