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ESIL Interest Group on Human Rights Launches Online Symposia on International Human Rights Law

Basak2 Dr. Başak Çalı (pictured above left) is Associate Professor of International Law at Koç Univerlmcgregor-53sity, Turkey. Lorna McGregor (pictured right) is a Reader in Law and Director of the Human Rights Centre at the University of Essex School of Law. Ivana Radačić (pictured below left) is a senior research associate at Ivo Pilar Institute of Social Sciences in Zagreb and Radacic_foto_CVa visiting lecturer at the University of Zagreb, the University of Osijek, the European Inter-University Centre for Human Rights and Democratisation (Venice). They are the Founding Co-Chairs of the European Society of International Law’s Interest Group on International Human Rights Law.

The theme of this year’s ESIL annual conference is ‘International Law AND …’  It takes place in a year of conferences seemingly devoted to ‘taking stock’ of the current state of international law and assessing the future opportunities and challenges it will face (see the recent ASIL-ILA conference on the Effectiveness of International Law and last week’s ILA British Branch conference on Foundations and Futures of International Law).

In establishing the ESIL Interest Group on Human Rights, we wanted to ‘take stock’ of International Human Rights Law and in doing so, to ask the big structural, procedural and substantive questions that are necessary to determine its future.  We plan to hold conferences like our inaugural roundtable on ‘International Human Rights Law AND…’ at the ESIL annual conference in Vienna in September and to encourage debate and discussion through online symposia, particularly on EJIL Talk! and other academic and practical projects.

Before our discussions even begin, however, we have to be clear on how we understand international human rights law. We regard international human rights law as a field that is simultaneously positioned both within public international law and across other disciplines.   International human rights law is substantial but nonetheless a sub-branch of public international law as well as part of a large and growing interdisciplinary ‘field’ of human rights.  Characterising international human rights law in this way is often overlooked but gives a much more textured and nuanced picture of its operation and the challenges it faces through resistance to containment as a sub-branch; internal-fragmentation; and interdisciplinary expansion.

Resistance to Containment to a Sub-Field  

The presentation of international human rights law as a sub-branch conceals its dominance within public international law making it a much bigger project than a ‘sub-branch’ would suggest.  Read the rest of this entry…

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Announcements: Job Openings–Professor/Reader at University of Essex, Legal Advisor at ICRC

Published on June 14, 2014        Author: 

1.  The University of Essex announces an opening for a Professor/Reader in Law (IHRL/ICL/IHL or related PIL). To be appointed to the Professorship an individual will have a clearly established international level reputation in the field of International Human Rights Law or a related field of Public International Law, such as International Criminal Law or International Humanitarian Law, and will be recognised as one of the leaders in their field. For the Readership the appointee will have an outstanding record of excellent research and be able to display clear potential to achieve a chair level appointment in a UK university. The closing date is 14 July 2014. Further details are available here.

2.  The Commentaries Update Project of the International Committee of the Red Cross has a job opening for a legal adviser. Further details  are available here.

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Announcing the OPIL World Cup Challenge

Published on June 11, 2014        Author: 

In nearly 20 years of legal publishing nobody has ever sent me a proposal for a book on football and international law. It’s not like there is any lack of international legal issues to be addressed – dispute settlement, IP, workers’ rights, corruption – the list goes on.  Perhaps many of the issues are more matters of private than public law but with the ongoing blurring of that distinction it could equally be the case that the time is ripe for a thorough scholarly investigation.

In an effort to marry up interest in public international law and football, and also to provide a bit of a distraction from all the sports coverage, we have devised the Oxford Public International Law World Cup Challenge. The concept is straightforward; hopefully the questions are less so. The questions are all about international law, and the answer to each question is the name of a country, or two countries, contesting the World Cup in Brazil. There are 27 questions relating to the 32 countries. You can try to work out the answers using your existing knowledge and deductive logic and then when you get stuck do a bit of research to find the rest.

The answers to the questions, along with brief explanations as necessary, will be posted on the site upon the conclusion of the group stages, on Friday 27th June. Please feel free to contact me if you have any queries.

We sincerely hope you find the quiz stimulating and enjoyable. Who knows, I might finally get a book proposal that combines the world’s greatest pastime and…football.

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The Idealist’s Dilemma: Re-Imagining International Society

Published on June 9, 2014        Author: 

There has never been a better time to be an international lawyer.   International Law is at last emerging as a sophisticated legal system, in an international society experiencing take-off – to borrow two metaphors from development economics.

International Law is living its own 1860’s.   From the 1860’s, especially in European countries and the United States, the forms of law multiplied prolifically to respond to the vastly greater complexity and energy of society.   Legal fragmentation and institutional innovation were an expression of self-transforming social vitality – as they are now in the emerging international society.

International lawyers are the most privileged of all lawyers.  International Law is the law of all laws, the law of the whole human world.  International lawyers are front and centre in the drama of making the new international society.

But there’s something that greatly limits the part we can play in the project of making the law of the new international society.   The international world suffers from a grotesque poverty of philosophy.  That phrase – ‘poverty of philosophy’– was used by Karl Marx in 1847 to criticise the situation at the level of national society.

Our predecessors at the national level had the great advantage that they could use thirty centuries of intense thought about the forms of law and order required for the good life lived in a good society.

The grotesque poverty of philosophy at the international level means that the international world has one big idea.   Everything else is a deduction from that one big idea.

The one big idea is that the international world is not a social phenomenon but an anomalous excrescence from national societies, an exogenous unsocial dependent reality, isolated from the vast intellectual superstructure required for the survival and prospering of national society.

Re-imagining the one big idea of the international world is an exciting challenge for those of us who think for a living.   It is an exciting challenge for international lawyers.   And it is a particularly delightful challenge for those of us who are philosophical idealists.    Read the rest of this entry…

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Announcements: Conference in Bangor on Proof in International Criminal Law, ASIL Research Forum Call for Papers: New Deadline, Conference on 21st Century Borders

Published on June 6, 2014        Author: 
1.  From 27-28 June 2014, Bangor Law School and the Bangor Centre for International Law will host a conference on proof in international criminal trials. It promises to be of great interest to academics and practitioners alike. The full conference programme is available here. Register here.

2.  ASIL Research Forum – November 6-8, Chicago, USA. The American Society of International Law has extended the deadline for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society’s Midyear Meeting in Chicago November 6-8, 2014. Papers can be on any topic related to international and transnational law and should be unpublished.  Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Interested paper-givers should submit an abstract (no more than 1000 words in length) summarizing the scholarly paper to be presented at the Forum. Review of the abstracts will be blind.  Proposals should be submitted online by June 15, 2014. To submit a proposal, or for more information, please visit here. 

3. The Keele School of Law is hosting a workshop on June 13th on the theme: ‘Theorising and Historicising International Law and the Environment’. The workshop brings together scholars with a shared interest in legal history to critically engage with the pre-history of international environmental law and its relationship to empire. Speakers include Yoriko Otomo (SOAS), Stephen Humphreys (LSE), Celine Tan (Warwick), Matthew Nicholson (Southampton) and Mario prost (Keele). For more information, and to register, please visit here.
4. Conference on 21st Century Borders: Territorial Conflict and Dispute Resolution, Friday 13th June 2014, University of Lancaster. 21st Century borders are coming under increasing strain with the recent annexation of the Crimea and disputes over islands and maritime delimitation in Asia, amongst others. This conference, organised by the Centre for International Law and Human Rights at Lancaster University Law School will explore the causes and dynamics of contemporary territorial disputes as well as mechanisms to resolve them. Full details and registration information can be found at the Centre’s website www.lancaster.ac.uk/cilhr/

 

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Non-State Armed Groups in NIAC: Does IHL Provide Legal Authority for the Establishment of Courts?

Published on June 4, 2014        Author: 

The recent Serdar Mohammed v. Ministry of Defencecase has prompted a number of interesting and insightful posts addressing the issue of whether international humanitarian law (IHL) provides a legal basis for detention in Non-International Armed Conflicts (NIAC) (see, for example, here, here, here and here). This discussion offers an opportunity to address the issue of non-State armed groups, something not discussed in detail so far, with the notable exception of Aurel Sari’s post. In particular, the existing debate with regard to detention raises, more broadly, the issue of the legal authority extended to non-State armed groups party to a NIAC. In this post, I present an argument in support of one of the most controversial issues in this area: the authority of armed groups to establish courts.

Does IHL regulate armed group courts?

As is well known, IHL does not provide an explicit basis for the establishment of courts in NIAC, but rather regulates their operation in the event they are in fact established. In this regard IHL contains two relevant rules. Common Article 3(1)(d) of the Geneva Conventions of 1949 prohibits ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court’, while Article 6 of Additional Protocol II (AP II) requires that ‘[n]o sentences shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality’. Regarding the common Article 3 requirement that a court be ‘regularly constituted’, sources such as the ICRC Customary IHL Study note that a court may satisfy this requirement ‘if it has been established and organized in accordance with the laws and procedures already in force in a country.’ This would appear to support the argument that IHL does not provide a specific legal basis for the establishment of courts (authority is derived from the municipal law in force). At the same time, this reasoning also appears to preclude the convening of armed group courts since domestic law is (almost certainly) unlikely to establish a legal basis for non-State armed group courts. That said, it should be noted that the Pictet Commentary to the Geneva Conventions does not equate the regularly constituted requirement with a basis in municipal law, but rather focuses on the prohibition of ‘summary justice’.

Article 6(2) AP II – which ‘develops and supplements’ common Article 3 – dispenses with the ‘regularly constituted court’ provision, requiring instead that a court offer ‘the essential guarantees of independence and impartiality.’ The ICRC Commentary notes that this was a deliberate act during drafting, as ‘some experts argued that it was unlikely that a court could be “regularly constituted” under national law by an insurgent party’. Read the rest of this entry…

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Locating the Legal Basis for Detention in Non-International Armed Conflicts: A Rejoinder to Aurel Sari

Published on June 2, 2014        Author: 

Last month, in response to the decision of the English High Court in Serdar Mohammed v. Ministry of Defence (see Marko’s commentary here), we wrote a piece arguing that Mr Justice Leggatt correctly concluded that international humanitarian law (IHL) does not provide a legal basis to detain in non-international armed conflicts (NIACs). We argued (contrary to Kubo Macak) that authorization to detain in a NIAC does not come from IHL, but rather must be found either in domestic law or in other branches of international law. In particular, we explained that the fact that IHL applicable in NIACs recognises that detention will occur and regulates such detention does not mean that this body of law provides an authority to detain in NIACs. Locating the legal basis for detention has significant implications for assessing the legality of detention in a NIAC, under international human rights law (IHRL). Aurel Sari has written an articulate and thought-provoking response to our post. We wish here to respond to the key points of Aurel’s critique of our view.

The Distinction between IAC Law and NIAC Law

Aurel begins by responding to our claim that the regulation of internment by IHL does not necessarily lead to the conclusion that IHL authorises it. However, his main criticism ignores the distinction we draw between the law applicable in NIACs and that applicable in IACs. He argues that to ‘conclude that IHL does not authorize any of the activities it regulates takes the argument too far.’ We agree, and in fact we do not make such a claim. Rather, we consider this issue to reflect one of the key differences between the law of international armed conflicts (IACs) and that of NIACs. As we noted in our post, whereas IHL applicable in IACS specifically authorises combatants to engage in hostilities (Art 43(2) Additional Protocol I) and to intern combatants (Art 21(1) Geneva Convention III) and civilians (Arts 27(4), 42-3 and 78 Geneva Convention IV), in NIACs IHL is silent on all of these issues and instead merely regulates certain aspects of them.

The reason for this difference between the two bodies of law is partly a consequence of the context of the two types of armed conflict. Since IACs concern two or more states, one state or the other is going to be acting on the territory of a foreign state and acting with respect to individuals who are foreign nationals.  In these circumstances, only an explicit norm of international law can provide the legal authority for targeting, detention, etc. Without such a rule of international law, these actions would be unlawful as a matter of international law since states do not have authority to take such action on the territory of another state and have obligations to other states with respect to how they treat nationals of those other states.

However, the position in NIACs is very different since such conflicts relate (mainly) to intra-state, as opposed to inter-state, relations. Read the rest of this entry…

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Announcements: International Legal Theory Conference in London, Conference in UK on ECtHR Jurisprudence in International Criminal Tribunals

Published on May 31, 2014        Author: 

1. On Friday 20 June 2014 the Society of Legal Scholars International Law Section and the British Institute of International and Comparative Law will co-host the 23rd Conference on Theory and International Law in London. The theme of this year’s conference is Sovereignty in the 21st Century. This conference will address aspects of both the theoretical and practical dimensions of sovereignty in the 21st century. Topics to be discussed include: the future of the concept of permanent sovereignty over natural resources; the future of the anthropomorphic conceptualization of the state in the context of the debates concerning statehood and recognition; international law and the value of statehood; state power and corporate sovereignty; monetary sovereignty; and counterterrorism, international organisations and state sovereignty. This conference will be of interest to academics, students and practitioners in the fields of international law, international relations, political science and diplomacy, civil liberties and human rights law. All those with an interest in current affairs will find much of interest in the subject matter of the conference and will be most welcome. Further details (including a link to the conference programme) are available here.

2. On 14 June 2014, Edge Hill University (UK) is hosting an international conference titled “The ‘Cross-Fertilization’ Rhetoric in Question: Use and Abuse of the European Court’s Jurisprudence by International Criminal Tribunals”. Speakers will discuss the outcomes of the presentations made by the participants in a workshop held at Edge Hill the day before. The main purpose of this initiative is to critically assess the manner in which human rights standards developed by the European Court of Human Rights have been used (or misused) by international criminal tribunals. See here for details.

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Arbitrator Independence and Academic Freedom

Published on May 30, 2014        Author: 

In international law, members of the discipline often fill a variety of professional roles. Many are scholars and practitioners at the same time; some even act in capacities that are mutually incompatible at the domestic level, such as being counsel and decision-maker at the same time – albeit in different proceedings. Investment arbitration is an area where this “double-hat problem” is vividly discussed. The main concern is the independence of arbitrators in light of interests that that individual may have in fulfilling other professional roles. What is less debated is how practice involvement can affect the role of the international lawyer as academic and how practice affects, and risks compromising, the independence of international law as an academic discipline. This is the theme underlying the following discussion of a recent challenge in CC/Devas and others v. India, which was decided by ICJ President Peter Tomka in an UNCITRAL arbitration under the Mauritius-India bilateral investment treaty (BIT). It is an abbreviated version of my thoughts from the first Editorial of the new Journal of World Investment and Trade that just came out.

Challenge in CC/Devas and others v. India

In CC/Devas and others v. India, two arbitrators, Francisco Orrego Vicuña and Marc Lalonde were challenged because they had, in the Respondent’s view, prejudged the meaning of the essential security-clause in the applicable BIT: Mr. Lalonde because he sat in both CMS v. Argentina and Sempra v. Argentina where a similar essential security-clause from the US-Argentina BIT had been an issue; and Prof. Orrego Vicuña because he sat, together with Mr. Lalonde, in the same two arbitrations, as well as in Enron v. Argentina, which also involved the US-Argentina BIT. On top, Prof. Orrego Vicuña had written a chapter on ‘Softening Necessity’ in the Liber Amicorum for Michael Reisman, in which he analyzed the tribunals’ approach to the necessity defense under customary international law and to the essential security-clause.

While ICJ President Tomka rejected the challenge against Marc Lalonde, stating that merely expressing prior views on an issue in an arbitration did not result in a lack of impartiality or independence, he upheld the challenge against Francisco Orrego Vicuña, because the latter had stuck to his approach to interpreting essential security-clauses through three arbitrations and in the academic article in question, although all three awards had been partially or totally annulled precisely on that point. Comparing the two challenges, the article written by Prof. Orrego Vicuña made all the difference. The case may therefore be read as boiling down to upholding a challenge of an arbitrator based on a view he or she has taken in academic writing. This decision is alarming, in my view, not only for investment arbitration, but for scholarship in the field. Read the rest of this entry…

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Who is Unwilling and Unable to Prosecute Crimes Against Humanity in Syria?

Published on May 29, 2014        Author: 

2014.05.26.AbdulhayAbdulhay Sayed is an independent Syrian lawyer, and has been a lecturer in law in the Damascus Faculty of Law from 2005 to 2011.

For Syrians, who are caught between totalitarian arrogance and human folly, the debate in the Security Council on 22 May 2014, over the French-sponsored Chapter VII draft resolution to refer the situation of Syria to the International Criminal Court (ICC), was marked by a tragicomic mix of global point scoring and political impotence. The defeat of the resolution is a major disappointment to Syrians. By refusing to address impunity for crimes against humanity in Syria irrespective of perpetrators’ political affiliations, the Security Council has failed to uphold the basic principles for which the UN is supposed to stand—including saving “generations from the scourge of war” and affirming fundamental human rights and dignity.

The French initiative followed a year-long Swiss-led campaign, which called upon UN member States to refer the Syrian situation to the ICC, because Syria has not ratified the Rome Statute of 1998. The initiative’s failure follows the declaration of the Office of the High Commissioner on Human Rights in January 2014 that it is no longer able to count casualties in Syria. Together, these developments raise the frightening possibility that the problem of impunity in Syria will gradually fade from the UN agenda.

The international community has sought to traverse historic distances since the atrocities of Yugoslavia and Rwanda in the 1990s. There is now a permanent and purportedly universal system of criminal justice, which, in the present tremendously polarized Syrian context, could, at least, provide a structure for the objective naming of atrocious acts of violence as crimes. Surely, this system cannot by itself resolve the conflict or bring solace to the victims. Nonetheless, it could offer some measure of justice, letting victims know that a process could be put in motion to underwrite their long and arduous procession from naming the crimes against them to healing the wounds they inflicted. To demonstrate its credibility, however, this system of justice needed to act in the face of grave crimes in Syria by enabling the ICC to exercise jurisdiction.

Instead, the Security Council showed, yet again, its structural inability to see the Syrian question through the prism of Justice. Accountability for the gravest crimes ranked as less important than the pursuit of a political solution. Through Geneva I and II, the motto was: give priority to the restoration of peace through political negotiation, and let the Syrians address the question of impunity themselves. This approach is blind to the reality of the Syrian tragedy. For many Syrians, the escalation of the conflict is inextricably connected to the persistence of impunity. The failure of the international community to seriously address the question of impunity in Syria for so long has normalized the proliferation of violence in the country and seriously undermined the prospect of a political solution. By failing to pass a resolution addressing impunity, the Security Council has sent a chillingly straightforward message to the perpetrators of violations of International Humanitarian Law in Syria and in other regions: escalating violence improves your chances of securing a seat at the negotiating table. A Syrian political process that is negotiated at the expense of accountability is impossible. It carries the seeds of further atrocities and injustice. Instead, addressing impunity must become a defining criterion for any political process.

It is now very difficult to predict the consequences for Syria, of the Security Council’s failure. For Syrians, the international community has shown itself to be unwilling and unable to genuinely prosecute the grave crimes occurring in the present degenerative state of barbarism in their country.

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