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MH 17 Goes to Strasbourg: Some Remarks on Obligations of Prevention, Foreseeability and Causation

Published on October 9, 2014        Author: 

pusztaiDavid Pusztai is a PhD candidate in international law at Gonville and Caius College, University of Cambridge.

The families of the German victims of the tragic MH 17 incident have reportedly decided to claim compensation from Ukraine. Although the details and the legal foundations of the claim have not been disclosed, what we know is that Professor Elmar Giemulla, representing the claimants, intends to bring this case before the European Court of Human Rights [ECtHR]. According to Professor Giemulla, “[e]ach state is responsible for the security of its air space […] If it is not able to [protect its air space] temporarily, it must close its air space. As that did not happen, Ukraine is liable for the damage.”

At the present stage many specific details are unclear, such as the admissibility of the claim or its articulation in the language of human rights law instead of international air law. There is, however, one apparently clear choice of legal strategy based on Professor Giemulla’s announcement: the identification of the internationally wrongful act in question, namely, Ukraine’s omission to close its airspace and to permit continued traffic.

Ukraine was indeed required to “take all practicable measures” to prevent offenses against the safety of international aviation under the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Article 10). Given its sovereignty over its airspace, the customary duty to take reasonable steps to protect aliens within its territory required the same from Ukraine, just as its human rights obligations did under the European Convention of Human Rights. In Ilaşcu v. Moldova and Russiathe ECtHR held that the State’s positive obligations do not cease to exist when de facto it is not able to control a part of its territory. Ukraine, to use the Court’s language, “must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention”, even within the territory controlled by separatists (see para. 333 of Ilaşcu).

The legal basis of MH 17’s presence in Ukraine’s airspace was Article 1 of the 1944 International Air Services Transit Agreement, conferring the right on foreign aircraft engaged in scheduled international air services to fly across its territory (both Ukraine and Malaysia are parties to the Agreement). Closing the airspace would have been one of  the “legal means” available for Ukraine under the same Article, given that the exercise of this privilege (the “first freedom of the air”) is subject to the specific approval of Ukrainian authorities in “areas of active hostilities”according to the same Article 1. Further, Article 9 of the 1944 Chicago Convention on International Civil Aviation provides that States may, “for reasons of military necessity or public safety”, restrict or prohibit foreign aircraft from using certain parts of their airspace. One important constraint is that such restriction “shall be of a reasonable extent and location so as not to interfere unnecessarily with air navigation.”  In fact, Ukraine exercised this right before the MH 17 tragedy and closed its airspace up to flight level 320 (32 000 ft); MH 17 was flying at flight level 330.

The question whether Ukraine’s failure to completely close its airspace before the incident is in itself a breach of international law (may it be international air law, international human rights law or law of the treatment of aliens) is an intriguing one, yet the present post focuses on a second possible hurdle for this claim:  the issue of causation (for more on air law aspects, see Professor Abeyratne’s article here) . Article 31 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts [ARSIWA] provides that the obligation to provide reparation is conditional upon a causal nexus between the internationally wrongful act and the damage. Did Ukraine’s decision to leave open its airspace above flight level 320 in the Dnipropetrovsk Flight Information Region cause the downing of MH 17?  Read the rest of this entry…

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International Law MOOCs: A Hazardous Legal Tool?

Published on October 8, 2014        Author: 

A while ago, Jean d’Aspremont engaged in a detailed defence of the ‘hazardous legal tool of blogging’ on this site. (He has since blogged quite prolifically – ie put theory into practice…). 3 ½ years on, I would like to raise a similar point and ask whether “international law MOOCs” (or “international law MOOC-ing”) could be something worth exploring – and find out whether readers have explored MOOC-ing already and would share their views.

MOOC stands for “massive open online course”; the relevant Wikipedia entry describes it as an “online course aimed at unlimited participation and open access via the web. In addition to traditional course materials such as videos, readings, and problem sets, MOOCs provide interactive user forums that help build a community for students, professors, and teaching assistants. MOOCs are a recent development in distance education which began to emerge in 2012.”

My sense is that – while courses on cross-cutting themes flourish (Michael Sandel’s course on justice perhaps being the most prominent example) – Law MOOCs have had a relatively slow start. In a recent blogpost, Loren Turner notes that “Initially, law schools were hesitant to offer MOOC courses in legal studies”, but that “within the last year [ie 2013/14], law schools have begun to embrace the idea as a way of exporting their brands, programs, and faculty to a global audience.” The initial hesitation may be due to a range of factors: perhaps legal topics are (or are perceived to be) technical; perhaps law schools are afraid that free online courses would ‘eat into’ or undermine proper (paid) course provision; or finally, to embrace the cliché, legal academia may just be a tiny bit more averse to experimenting than other disciplines. (With respect to the latter point, I thought it was interesting that a recent report on the Völkerrechtsblog, summarising a joint ILA-ASIL meeting on ‘The Teaching of International Law’, suggests that the meeting remained focused on core university teaching. I did not attend so do not know what was said; but was struck by the fact that the use of videos in classroom teaching was considered ‘sensationalist’.)

But the times are probably a-changing. Read the rest of this entry…

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The Tories and the ECHR: Mere Incompetence or Deliberate Deception?

Published on October 7, 2014        Author: 

The Conservative Party in the UK has released a paper entitled ‘Protecting Human Rights in the UK – The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’. This is in the aftermath of David Cameron’s pledge during the Conservative Party conference last week to scrap the Human Rights Act 1998, the domestic statute which transformed the European Convention of Human Rights into UK law, allowing for ECHR rights, as transformed through the HRA, to be directly invoked before and applied by UK courts. This is to be replaced by a ‘British Bill of Rights and Responsibilities’, a draft of which the Tories have pledged to shortly publish for consultation.

The pledge, and the paper, have already provoked a flurry of responses, both in the press and in numerous blog posts (though the best summary is aptly given by the Daily Mash in an article entitled ‘Human rights laws to be replaced by gut instinct‘). Many of these articles and blog posts, including the post here by Martin Browne,  have made a number of important points regarding the impact of such a change in UK law and international law, as well as with respect to devolution and the Good Friday Agreement. This short post aims to simply highlight the impact of the proposed Conservatives’ changes from the perspective of public international law. This impact would be rather minimal, except that the proposed changes will increase the danger of the UK running afoul of its international obligations, of it engaging its international responsibility. That is, of course, unless the real aim is to withdraw from the ECHR.

Read the rest of this entry…

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The UK Conservative Party Proposes Changes to Human Rights Protection

Published on October 6, 2014        Author: 

For those accustomed to the debate surrounding the European Convention on Human Rights in the UK, it is a refreshing to hear a clear statement from Chris Grayling, the Secretary of State for Justice, that the Convention is “an entirely sensible statement of the principles which should underpin any democratic nation,” and this on the 14th anniversary of the Human Rights Act 1998 taking legal effect, which allowed any individual to seek redress for human rights violations directly in UK courts.

Headlines have trailed that the Secretary of State, on behalf of the Conservative Party and in advance of the UK general election in May 2015, has issued a threat that the UK will denounce the Convention and repeal the Human Rights Act unless the European Court of Human Rights changes its approach and respects parliamentary sovereignty. Leaving aside the fact that the Court does respect parliamentary sovereignty, subjecting human rights protection to the control of one nation State would be dangerous and would reverse in an instant the progress made in the setting of human rights standards in the last 60 years.

Beyond the headlines are more damning proposals, accurately summarised here – that essentially would remove the right of some individuals to hold the State to account and establish asymmetrical application of human rights dependent upon the qualities of an individual’s ‘responsibilities in society’, the seriousness of the case, and the wonderfully vague threshold of whether the case arises in an area of law that already applies human rights law.

Read the rest of this entry…

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Announcements: EJIL: Live!; ILA-ASIL Asia-Pacific Research Forum Call for Papers; Conference on Children & International Criminal Justice at Georgia Law; Conference at Aarhus University on Inter/Trans-national Law; Conference in London on EU law and International Law

Published on October 4, 2014        Author: 

1.   In case you missed it: Episodes 1 and 2 of EJIL:Live! are available onlineEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 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.

2.  Call for Papers: 2015 ILA-ASIL Asia-Pacific Research Forum, Taipei, Taiwan. The Chinese (Taiwan) Society of International Law will hold the ILA-ASIL Asia-Pacific Research Forum on May 25-26, 2015 in Taipei, Taiwan. The theme of the Research Forum is “Integrating the Asia-Pacific: Why International Law Matters?” Paper proposals should be submitted by January 20, 2015 to ila {at} nccu.edu(.)tw. The call for papers is available here. Other inquiries can be directed to Pasha Hsieh, co-chair of the Research Forum (pashahsieh {at} smu.edu(.)sg).

3.  Conference on Children and International Criminal Justice at Georgia Law.  The International Criminal Court’s Prosecutor Fatou Bensouda will deliver the keynote address at   “Children & International Justice,” an international experts’ conference, to be held Tuesday, October 28, 2014, at the University of Georgia School of Law in Athens. The law school is home to Professor Diane Marie Amann, who serves as Bensouda’s Special Adviser on Children in and affected by Armed Conflict. Taking part will be more than 2 dozen experts in children’s rights, international criminal law, and transitional justice, who will address a range of issues in a public morning session and in closed afternoon workshops. Experts will be drawn from academia, practice and from international organizations. The discussions will assist advising in the ongoing process of development of the Office of the Prosecutor Policy Paper on Children. The keynote address and the plenary presentations, along with student rapporteurs’ Chatham-House-Rules accounts of the breakout sessions, will be published in the Georgia Journal of International & Comparative Law.  Sponsors, in addition to the journal and the law school, are the law school’s Dean Rusk Center for International Law & Policy, the Georgia Law Project on Armed Conflict & Children, the African Studies Institute of the University of Georgia, the Planethood Foundation, and the American Society of International Law-Southeast. Details are available here and registration can be done here.

4.  The Department of Law at Aarhus University, Denmark, is organising the opening seminar of the INTRALaw project, on 24 October 2014. INTRALaw  – International and Transnational Tendencies in Law – encompasses a range of cross-disciplinary research projects led by researchers from the Department of Law at Aarhus University, Denmark. Read the rest of this entry…

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Our terrorists, your terrorists? The United Nations Security Council urges states to combat “foreign terrorist fighters”, but does not define “terrorism”

Published on October 2, 2014        Author: 

The aim of Resolution 2178 of the UN Security Council, which was passed unanimously on 24 September, is laudable in principle: to combat the growing jihadi “terror tourism”, coming from France, Germany, the UK and other Western states, in a comprehensive manner, not just through criminal and police laws. In its preamble, the eight-page Resolution explicitly recognises that international terrorism cannot be defeated through military and other repressive measures alone. However, it does not define terrorism, its key object of reference, instead speaking vaguely of “terrorism in all forms and manifestations”. Its operative paragraphs (paras. 2 ff.) refer to “terrorists”, “terrorist groups”, “individuals” and “person[s]” travelling abroad to fulfil a terrorist “purpose”, making no distinction between them. This terrorist purpose supposedly consists of the perpetration or preparation of terrorist acts, or the participation in terrorist acts or terrorist training. UN member states must prosecute the persons in question. Furthermore, they must make any financing of such journeys and assistance in carrying them out, including the recruitment of “terrorist” fighters, subject to criminal sanctions and prosecution. Finally, the listing of the persons in question – famously called a ‘civil death penalty’ by Dick Marty, the former chairman of the Legal Affairs and Human Rights Committee of the Council of Europe – is also provided for (para. 7).

But how is all of this to work under the rule of law if the phenomenon to be combatted is not defined? The Resolution remains silent on this issue, referring only to fighters belonging to ISIL, ANF and other groups deriving from Al-Qaida (para. 10), without, of course, presenting this as a definitive list. One wonders why the Resolution did not adopt para. 3 of Security Council Resolution 1566. This paragraph defines terrorist acts as acts (1) committed with the intent to cause death or serious bodily injury, or taking of hostages, (2) with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which (3) constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism. This is, in essence, the definition of international terrorism recognised by customary international law, which also forms the basis for a UN draft treaty of 2010 and is referred to in international jurisprudence, such as the famous jurisdictional decision (15 Feb. 2011) of the UN Special Tribunal for Lebanon, mainly authored by the late Antonio Casesse.

Unfortunately, Resolution 2178 ignores all of these definitions and thus ultimately leaves it up to each UN member state to apply the measures called for to those individuals defined as “terrorist” by that respective state itself. Read the rest of this entry…

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UN Human Rights Council Panel Discussion on Drones

Published on October 1, 2014        Author: 

Last week the United Nations Human Rights Council convened a panel to  discuss the use of armed drones (remotely piloted aircraft) in counter-terrorism and military operations in accordance with international law. The panel was convened as part of the Human Rights Council’s 27th regular session, which finished last week.  The session held last Monday took the form of an interactive dialogue between a panel of experts, members of the Human Rights Council (i.e States), as well as observers. I had the honour to be invited to moderate what turned out to be a very interesting panel discussion. The panellists were Christof Heyns, UN Special Rapporteur on extrajudicial, summary or arbitrary executions; Ben Emmerson QC, UN Special Rapporteur on human rights and counter-terrorism; Shahzad Akbar, Legal Director, Foundation for Fundamental Rights; Alex Conte, Director of International Law and Protection Programmes, International Commission of Jurists;  and Pardiss Kebriaei, Senior Attorney, Centre for Constitutional Rights. Flavia Pansieri, the UN’s Deputy High Commissioner for Human Rights opened the discussion.

There was a really interesting exchange of views, not only amongst members of the panel but also between states and NGOs. Over 20 states spoke, including all the permanent members of the UN Security Council, as did the ICRC. There was discussion of the entire range of legal issues relating to targeted killings in counterterrorism and other operations. In particular, there was consideration of the applicable legal framework regulating the use of armed drones with much attention given to the applicability of international human rights law and international humanitarian law (IHL). In this context there was discussion of the substantive legal issues relating to the determination of the applicable legal framework – such as the classification of situations of violence (for the purpose of determining the applicability of IHL) and the extraterritorial application of the right to life. However, perhaps the most significant disagreement between states related to the question of institutional competence for discussing and monitoring compliance with the law. In a divide which appeared to mirror the range of views as to whether norms of human rights or IHL constitute part of, or the main applicable legal framework, some states (like the US, the UK and France) insisted that the Human Rights Council was not an appropriate forum for discussion of the use of armed drones whereas many other states, observers and panellists insisted that the Council was such a forum.

A significant part of the discussion also covered the applicable human rights  and IHL rules that apply to the use of drones. The panellists spoke about the right to life as it might apply to drones; the principles relating to targeting under IHL; and other potentially applicable human rights, such as the right to a remedy.  A key part of the discussion was about accountability with respect to the use of drones. All the panellists spoke about the obligations of states under IHL and human rights law to conduct investigations in cases where there was a credible allegation of violations, as well as the obligations relating to transparency with respect to drone operations. This issue was also raised by a number of states with some seeking examples of best practices that may be employed with respect to disclosure of data relating to drone operations.

A press release summarising the discussion is available here and a video of the entire panel discussion is available on UN Web TV. Christopher Rodgers of the Open Society Foundations has also written an excellent report of the session on Just Security. The Office of the High Commissioner for Human Rights will submit a report on this discussion to the Human Rights Council’s 28th regular session which will take place early in 2015. At this point, the matter will return to the Council for further consideration.

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Social Capital and the Limits of Network Analysis

Published on September 29, 2014        Author: 

I want to start by thanking each of the commentators for their kind, forgiving and thought-provoking comments on my article, and by recognizing that the work of DaphaMichael and Tom set the foundations and served as the inspiration for this work. I will organize my responses into three different clusters:  methodology, extensions and other, more general comments.

Methodology

I will first address Tom’s comments on the record of appointment as a proxy for displayed preferences. Can we ignore the fact that an appointment does not necessarily indicate that the arbitrator was the appointer’s first choice? I like to think of this question as a job offer to a candidate who decides not to accept an offer. The truth may be that certain candidates are in high demand and that many companies are offering jobs to the same well-qualified candidates.  Hence it is possible that parties who nominate arbitrators and may be trying to enlarge the diversity of the pool of arbitrators in ICSID may be somewhat restricted by the broader market of arbitration professionals.  This is true especially where, as Michael points out (and as confirmed by arbitrators during my interviews), the compensation provided by ICSID is lower than that of other arbitration opportunities and venues.   This is a limitation of the assumptions that can be made from the ICSID appointments. We are left with only the record of appointments as a second-best proxy.

A second point raised by Tom as to why the mid-2000s witnessed the first appointments of today’s power-brokers is also relevant. We must take into consideration that these years saw a boom of investor-state cases and, hence, more appointments. It is also true that this is when we started seeing more awards discussed publically.  Although I did not report these statistics in this paper, measures that reflect the connectivity of the network start stabilizing and changing in less intense ways during this period.  Thus I’m not surprised that the network acquired self-organizing qualities during this time.  One plausible hypothesis for future exploration is how the development of transparency rules may have helped cement public knowledge of decisions and with that, some of the insights that come with understanding the decision-making philosophy of arbitrators.

On the methodology of determining the average compensation per arbitration of US$200,000, I admit that the number is not incredibly precise. However, it is the best approximation I could divine. I followed a complex, yet not foolproof strategy to arrive at what I consider a very rough average. First, I computed the amount in 2010 dollars from roughly 70 awards that provided information on compensation in my sample of ICSID and ICSID Additional Facility awards. I divided this amount by the months of duration of each case and averaged the result. Using the dollars per month estimate, I calculated the possible amount paid to an arbitrator on settled or dismissed cases based on an average duration of the case. I confirmed that this rough estimate was in the right ballpark with one scholar who has done extensive empirical work with ICSID data as well as through my interviews with arbitrators. It is not an exact appraisal, but what is relevant for the purpose of the article is whether ICSID’s rate completely changes the incentives to accept an appointment and hence whether the distribution of ICSID appointments is completely different from that of other institutions. We cannot know the answer to this question for certain, but with a grain of salt, my educated guess (taking into account what I gleaned from working at ICSID) is that it does not. Most appointments are accepted and most rejections occur when a conflict exists. In my experience it was only in very few cases that, for other reasons (such as being too busy) an arbitrator decided not to accept an appointment. Read the rest of this entry…

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Announcements: EJIL: Live!, New Journal on the Use of Force, Symposium in Luxembourg on Protection of Persons Fleeing Situations of Armed Violence; BIICL Call for Papers on British Influence on International Law

Published on September 26, 2014        Author: 

1.   In case you missed it: Episodes 1 and 2 of EJIL:Live! are available online. Episode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between 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.

2.  Journal on the Use of Force and International Law (including the Digest of State Practice on the Use of Force). Hart Publishing is delighted to announce that the first issue, published in August, of the Journal on the Use of Force and International Law is now available online. Please click here for the table of contents. The Journal on the Use of Force and International Law (JUFIL) is the first peer-reviewed journal covering all aspects of the law governing the use of force (jus ad bellum), as distinct from other areas of international law relating to security issues, such as International Humanitarian Law or International Criminal Law. From the first issue, Hart Publishing is pleased to make available the article by Claus Kreß, “Major Post-Westphalian Shifts and Some Important Neo-Westphalian Hesitations in the State Practice on the International Law on the Use of Force” free to view online. To access this article please click here and follow the instructions shown. For subscription rates and details on how to subscribe please visit the journal’s website or contact Subscriptions Department, Macmillan Distribution (MDL), Brunel Road, Houndmills, Basingstoke RG21 6XS, UK. Tel: +44 (0)1245 302572 Fax: +44 (0)1256 363223 Email: MDLsubs {at} macmillan(.)com.

3.    University  of  Luxembourg/UNHCR  Symposium  on  the  Protection of Persons Fleeing Situations of Armed Violence. On  Monday  20  October  2014,  the  University  of  Luxembourg will host a symposium,  jointly  organised with the UNHCR, on the protection of persons fleeing situations of armed violence.  The event will consider the issue of assessing  claims  for  international  protection for persons fleeing armed conflict  or  other  situations  of  violence: using Article 2A of the 1951 Geneva  Convention  or  Article  15  of  the  EU  Qualification  Directive? Particular  attention  will  be  paid  to  the  new UNHCR guidelines on the subject.  Participants  will include Pascale Moreau (UNHCR), Advocate General Eleanor Sharpston  (CJEU),  Judge Lars Bay Larsson (ECJ), Judge Ledi Bianku (ECHR), Alice  Edwards (UNHCR), Prof. James Sweeney (Lancaster University), Blanche Tax  (UNHCR),  Serge  Bodart  (ULB), Prof.  Matthew Happold (University of Luxembourg), and  Philippa  Candler  (UNHCR).   Further  details  of  the programme can be found here.   The  event  will  take  place  in  English  and  French with simultaneous translation.  Attendance at the symposium is free but registration is required and can be done online here.

4. The British Institute of International and Comparative Law (BIICL) is making a worldwide Call for Papers on British Influences on International Law 1915-2015. The Institute is publishing a series of books to commemorate the centenary of the establishment in London of the Grotius Society (a forerunner of BIICL) in 1915. One of these books is on British Influences on International Law in the period from 1915 until today. We invite anyone who has an interest in writing a chapter on an aspect of this topic to submit an abstract for consideration. This invitation extends to established academics, early career researchers, doctoral researchers, those with experience in government and other practice, and anyone else with relevant expertise, whether based in the UK or elsewhere. The authors of the selected papers may be chosen for presentation as part of a seminar series which is likely to be held in the first half of 2015. For further information, please visit www.biicl.org/newsitem/6086 or contact the project co-ordinator Dr Jean-Pierre Gauci on j.gauci {at} biicl(.)org

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UK House of Commons debate on the use of force in Iraq, 26 September 2014

Published on September 25, 2014        Author: 

On September 26th, the UK House of Commons will debate a Parliamentary motion which seeks to authorise:

Her Majesty’s government, working with allies, in supporting the government of Iraq in protecting civilians and restoring its territorial integrity, including the use of UK air strikes to support Iraqi, including Kurdish, security forces’ efforts against ISIL in Iraq.

The motion expressly states that it does not endorse air strikes in Syria, the authorisation for which would require a separate vote in Parliament, and that the government will not deploy UK troops in ground combat operations. The text of the motion is here. The UK government’s legal position is that there is “a clear and unequivocal legal basis for deployment of UK forces”.  A summary of this position is here.

So what do you think?

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