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Scottish Independence: Political Rhetoric and Legal Realities

Published on February 16, 2013        Author: 

The recent publication of Professors Crawford and Boyle’s opinion on the international law aspects of Scottish independence is an event not because it says anything new – most commentators (including the present writer) come to the same conclusions – but because it puts the imprimatur of two highly distinguished international lawyers on the matter. On Scottish independence, Scotland would emerge as a new State, with the rump UK (England, Wales and Northern Ireland) continuing the legal personality of the UK. As regards membership of the European Union, this would mean that the rump UK would retain the UK’s membership, whilst Scotland would have to be admitted as a new member.

Nonetheless, although the opinion adds weight to the arguments advanced, it might be thought unlikely to end the controversy, given the political sensitivities involved. Already, nationalist voices have dismissed it as simply the views of two among many commentators, whom of both, moreover, were paid by the British government to provide the advice.

This would be, however, to privilege form over substance. In practice, the two sides have converged in agreeing that negotiations would be required for Scotland to become a Member of the European Union. Read the rest of this entry…

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Filed under: States and Statehood
 
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Ronald Dworkin RIP

Published on February 15, 2013        Author: 

The great legal philosopher Ronald Dworkin passed away yesterday.  A New York Times obituary is available here.

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Sharing Responsibility for UN Targeted Sanctions

Published on February 14, 2013        Author: 

Cross-posted from the SHARES Blog

UN targeted sanctions, especially those related to terrorism, have had their fair share of the limelight lately, particularly in view of important decisions by the ECJ, the ECtHR, the UK Supreme Court and others in cases such as KadiNada, and Ahmed. Here, I try to look at this jurisprudence through the lens of the project on shared responsibility (SHARES). After introducing the relevant sanctions regime, I argue that the complex conduct of the UN and its member-states in designing, imposing, and implementing the sanctions leads to them sharing international responsibility for the resulting breach of aspects of the internationally protected right to a fair trial. This is so because states are ‘held responsible’ in their own domestic courts or in regional international courts, which then forces them to turn to the UN and seek to implement the organisation’s international responsibility. In this manner, the international responsibility for what is in effect ‘shared’ conduct is itself shared, in practice. Read the rest of this entry…

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Boyle and Crawford on Scottish Independence

Published on February 12, 2013        Author: 

Last month, Joseph Weiler’s post on Catalonian independence and the European Union triggered a lively discussion here on EJIL!Talk (including Nico Krisch’s reply). Yesterday’s publication by the British government of a legal opinion by Alan Boyle of the University of Edinburgh and James Crawford of the University of Cambridge, entitled ‘Referendum on the Independence of Scotland: International Law Aspects’ has already received extensive news coverage (eg BBC, New York Times, Guardian, FT) and was labelled as ‘incredibly arrogant’ by the Scottish deputy first minister.  In a riposte, the Scottish government accelerated publication of a report on the macroeconomic framework in case of Scotland’s independence. A committee composed of economists, including Nobel prize winners Joseph Stiglitz of Columbia University and Sir James Mirrlees of the University of Cambridge, suggested that if the Scottish people voted for independence in 2014, a formal currency union between UK and Scotland, with a 10 percent Scottish stake in the Bank of England, would be the most likely outcome.  The currency that Scotland would use in the event of independence and Scottish membership in international organisations, most importantly the European Union, have been focal points of the discussion in the lead-up to the referendum.

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The Power to Kill or Capture and the DOJ White Paper

Published on February 11, 2013        Author: 

Ryan Goodman is Anne and Joel Ehrenkranz Professor of Law at New York University School of Law

Thank you to the editors of EJIL: Talk! for inviting me to reflect a bit on the US Department of Justice’s White Paper on Targeted Killings in light of my forthcoming article: The Power to Kill or Capture Enemy Combatants, 24 European Journal of International Law (2013).  The article argues that international humanitarian law (IHL) prohibits killing instead of capturing an enemy fighter in important cases—where many other commentators assume that IHL is highly, if not completely, permissive (see meaty footnote 17, especially if you’re among the latter). My analysis does not require one to take a position on whether the current fight against Al Qaeda constitutes an armed conflict. The analysis is, instead, an exhaustive study of the pertinent jus in bello rules—for whenever an armed conflict triggers their application. Thus with respect to U.S. targeted killings, we can adopt a conditional position: If one accepts (even just for the sake of argument) that the law of armed conflict applies, then one needs to recognize that IHL will sometime impose a duty to capture instead of kill.

The DOJ White Paper is—unsurprisingly–premised on the assumption that the United States is in an armed conflict with Al Qaeda and associated forces, and that IHL applies. Refreshingly for students of international law, the document goes further and accepts that IHL is directly relevant to major questions of domestic law. First, in terms of procedural due process rights, the DOJ states that the constitutionality of the decision to kill a U.S. citizen hinges, in part, on whether “the operation would be conducted in a manner consistent with applicable law of war principles.” Second, it is a federal offense to kill or attempt to kill a US citizen in a foreign country (18 USC 1119(b)). The DOJ explains, however, that the federal law on foreign murder provides a safe harbor—an exception for killings that occur in armed conflict and comply with the laws of war. Finally, the question of Presidential power turns in part on international law. Shortly after September 11th, Congress authorized the President to use force to hunt and kill Al Qaeda members. The DOJ recognizes, however, that authority came with the following proviso: the President’s actions must abide by the laws of war. If they don’t, the President presumably would be acting without affirmative congressional authorization. In short, the White Paper identifies important areas of domestic law that are predicated on compliance with IHL.

The document, however, misunderstands the content of IHL. Read the rest of this entry…

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Job Announcement: Fellowships at Tel Aviv University

Published on February 10, 2013        Author: 

The Global Trust Research Project at Tel Aviv University Faculty of Law invites applications for three types of fellowships: post-doctoral, doctoral and short-term visiting fellowships. The Global Trust research project is funded by a European Research Council Advanced Grant and it will study the extent to which states that exercise regulatory functions should take into account the interests and preferences of foreign individuals and communities located outside their boundaries. Participants in this project will explore the possible moral and legal grounds for requiring states to take other-regarding considerations into account and the institutional mechanisms that could legitimize the external review of states’ compliance with such obligations. For more details regarding the fellowships see here

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Conference Announcement: Frankfurt Investment Law Workshop 2013 & Amsterdam Seminar on International and National Legal Orders

Published on February 10, 2013        Author: 

1) The Frankfurst Investment Law Workshop 2013 will take place on March 22 and 23. The Workshop, which provides a  forum for the discussion of conceptual issues of international investment law, is organised by the Merton Centre for European Integration and International Economic Order, University of Frankfurt in collaboration with the School of Law, University of Glasgow and the Max Planck Centre for Comparative Public Law and International Law. The theme of this year’s workshop will be “International Investment Law and Development: Firends or Foes?”  A full programme is available here. To register please get in touch with Mrs. Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt at S.Schimpf {at} jur.uni-frankfurt(.)de 

2) The Amsterdam Center for International Law will host a seminar entitled: “Interfaces between International and National Legal Orders: An International Rule of Law Perspective”, 14-15 March 2013. You can find the provisional program and the list of participants here.

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An Easy Exam Question on the Right to Life

Published on February 8, 2013        Author: 

You are a police officer, patrolling an area known to be a favourite hunting ground of a serial killer. The killer has managed to elude all efforts to track him down so far. All you know about him is that he is a total slave to ritual, killing with a knife a single female victim on the first day of each month, and never deviating from this pattern. Today is one such day.

Today also seems to be your lucky day.  Through sheer chance you stumble into an alley where you discover what could only be the serial killer repeatedly stabbing his victim through the chest. It unfortunately wasn’t her lucky day and she expires on the spot. The killer is wearing a jacket with the words ‘Yo, I’m Dexter Morgan, serial killer’ emblazoned on the back in bright, red letters. You shout: “Stop! Police! You are under arrest. Drop down your weapon.”

Rather than drop the knife, Dexter throws it at you with lightning-fast reflexes. This being your lucky day, the knife merely grazes your forehead, but the cut starts bleeding profusely. He runs; you pursue. You chase him from corner to corner, street to street. It’s all very exciting, and would look great on screen. But he is fast; certainly faster than you (while you’re not exactly fat, your mother still calls you ‘my big boned sugarpuff’ with a mix of pride and tenderness).

You realize that you are losing him. In a few moments he will be entering a labyrinthian maze of service tunnels going underneath the city. Once he does, you will lose him for sure. You shout: “Stop, or I will shoot!” He predictably ignores you. Well, he does somehow manage to flick a finger in your general direction.

You aim your gun. You know you’ll have the time for only one shot before he enters the tunnels. The blood flowing from the cut on your forehead makes aiming difficult. Even though you are pretty handy with a gun, you think that you will probably miss if you fire at his legs, with the purpose of stopping him. If you fire at his torso, which presents a much bigger target, you will probably hit him – but also probably kill him. You steady your aim, thinking back to your training. Do you fire?

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A Few Brief Thoughts on the DoJ White Paper

Published on February 7, 2013        Author: 

The recently leaked US Department of Justice White Paper on targeted killings has now been thoroughly dissected in the blogosphere (see, in particular, Kevin Heller’s and Deborah Perlstein’s comments on Opinio Juris here, here, and here, as well as Steve Vladeck’s take on Lawfare). I have little to add to this – in part because, as Ben Wittes and Susan Hennessay point out, there is actually fairly little new in this memo when you compare it to the various speeches on drones given by Obama administration officials. The substantive arguments or positions are essentially the same.

Where the White Paper is different, however, is in its format and size. It is not the ‘real’ legal memorandum prepared by the Office of Legal Council in the DoJ, which it allegedly summarizes to an extent, but neither is it a mere speech. It is written in legalese, it has footnotes and citations, it has the form of a legal document even if perhaps not all of its trappings. I must say that I really do not understand the administration’s reluctance to release the OLC memo itself, with redactions for any classified materials, and the need to produce this kind of quasi-summary. Nobody’s really happy with that (I won’t even get into a rather unflattering comparison with the policies of the Bush administration on similar matters), and there doesn’t seem to be any real benefit to such a strategy of creeping disclosure (indeed, leakage). The administration has now announced that it will disclose the memo to Congressional intelligence committees, but whether a redacted version will be made public is yet to be clear.

The White Paper is thus what we’ve got so far. And if we judge it on its own merits it doesn’t come accross well, for reasons given mostly be Kevin and Steve. Here’s a few additional points.

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Daniel Barenboim on Israel and Palestine

Published on February 5, 2013        Author: 

The great Daniel Barenboim has a very frank interview with Al Jazeera, dealing largely with his views on the Israeli-Palestinian conflict, which readers might find of interest. His diagnosis of the conflict as being in many respects asymmetrical, but in one aspect being “perfectly symmetrical, and that is the lack of curiosity about the other as human beings,” sounds right to me. This, of course, sounds even better:

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Filed under: EJIL Analysis, Israel, Palestine
 
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